(after stating the case.) 1. The admission of the testimony of the prosecutrix in regard to the conversation with ITunter, and what was said about the' spit with the Plummers, is the ground of the first exception. This evidence first -came out, without objection, upon the cross-examination of the witness by the defendant, and thereafter, Hunter, a .witness for the defendant, was examined in relation thereto without objection. We do not see how what was said in relation to the suit with the Plummers was in any way materia to or could affect the issue before the jury, and, if material upon the re examination of the witness, Annie McClure, it was rendered so by what was said by her without objection, on cross-examination, and by the contradiction thereof by the witness Hunter. In this aspect of the case she had a right to explain, and thereby corroborate her own testimony. State v. Whitfield, 92 N. C., 831. But if not competent for the purpose of explanation and corroboration, it was immaterial, and could in no way prejudice the defendant in the minds of the jury. The admission of immaterial evidence is not a ground for a new trial, unless it appears that its admission probably worked injury to the appellant. Waggoner v. Ball, 95 N. C., 323.
2. There was no error in refusing to give the first part of the prayer for instructions asked by the defendant. The words spoken, as will be seen by reference to any dictionary, unquestionably “ amount to a charge of ineontinency,” and if the witness Annie McClure is to be believed, she was a chaste woman, and the evidence as to her general reputation was competent to support her testimony. «It is insisted by counsel for defendant that the charge of his Honor is “obnoxious to the objection that it violated the act of ’96 in arraying the testimony against the defendant.” It is stated *696that the Court recapitulated “ all the testimony in the case,” and if any favorable to the defendant was omitted, attention should have been called to it by counsel.
It, is further insisted for the defendant that the “ legal entity ” of the wife being merged, “ husband and. wife are one person,” and, therefore, words spoken by the husband in the presence of the wife ai;e protected, and “ assuming that the supposed defamatory words were spoken in the hearing of a third person,” the wife is not such a person within the meaning of the law, and if she was such a third person the fact that she was “ a sjiort distance off” is not sufficient to prove that she heard the defamatory words. We are unable to see the force of this objection. The words spoken were not of a gentle and confidential character, between husband and wife, but spoken in a loud tone which could have been heard a long way off, and besides, it appears from the testimony on behalf of the defendant that a negro woman was near, and that the witness John Lytle was in hearing, though he testified that the language used by the defendant was different from that charged by the prosecu-trix. There is no error in refusing to charge the jury as requested or in the charge as given.
Affirmed.