the altered condition of Christian public sentiment at the present day, an act passed in the very same words would be held as directly aimed at that execrable practice, now happily denied any civilized toleration. This, however, not because of the judges' disposition to reprehend it, but because of a weighty presumption that the Legislature meant so to do. The universal love of so-called " sports " which involve the destruction of animal life can not now be ignored in a search after the legislative meaning in the act before us.

Such diversions are not always resorted to for the needs of human sustenance. Yet they are not considered "needless" for man's enjoyment of his legitimate dominion over the brute creation. The individual who finds a healthful recreation in gunning or fishing can hardly be told that this must not be gained at the expense of his dumb subjects. The plea for life which he might hear, if the gift of speech were not denied, would have little weight against even the momentary triumphs of the marksman who brings down his game. It may be that the day will come when sentiments of mercy and humanity shall have so far advanced with the progress of refining thought, that the man who can SO estimate a fleeting satisfaction above a life, however lowly, which only Omnipotence can bestow, will be regarded as exceptionally selfish and cruel. But no such feeling prevails to-day. Nor can any such be supposed as a basis for the interpretation of a legislative enactment.

It could never be the policy of a good government to suppress innocent manly exercises, which tend either to promote physical superiority, or to stimulate the courage and the consciousness of individual power, which, in times of public peril, so often prove the only means of safety. But in this general truth, I fail to find for the acts here charged the moral justification implied in the able opinion heretofore delivered in this cause. All possible superiority in markmanship could be quite as easily attained without the sacrifice of any life. Courage is practically cultivated nowhere but in the view of danger, real or supposed. In all the "manhood" that may be devoted to bloody conquests over defenceless creatures, already captive, we can not feel sure of finding the material that would best serve to defend the State. When no higher motive is apparent in the conqueror than that of "displaying his skill as a marksman," it may be doubted that his example is of a largely more elevating tendency than was that of the ancient tyrant who plucked out the eyes of a slave in order to show the deftness of his fingers. But execrable as the exhibition may have been to the human instincts which originated this prosecution, or however revolting to a judge who might be called upon to condemn it, the rule of interpretation already exemplified seems to leave no escape from the conclusion announced in our first judgment. An act such as this, identified in gen

eral features with popular diversions which however indifferent to the value of brute life, have never been held "needless" for man's lawful delectation, could not have been within the legislative contemplation when this indefinite prohibition was made a law.

For this reason, I concur with my brother judges in overruling the motion for a rehearing.

SLANDER-NOT AN INDICTABLE CRIME.

STATE v. WAKEFIELD.

[8 Mo. App. 11.]

In the St. Louis (Mo.) Court of Appeals, 1879.

Slanderous Words not Reduced to Writing, constitute no offense against the criminal laws of this State.

APPEAL from the St. Louis Court of Criminal Correction.

LEWIS, P. J. This is a criminal prosecution upon information, charging the defendant with having uttered slanderous words against the St. Louis Chief of Police and a private citizen. The information was demurred to as charging no criminal offense known to the laws of Missouri. The demurrer was sustained, and the city appealed.

No statute of this State forbids the utterance of slanderous words, not written or printed, as a crime to be punished. If the act is criminal under our law, this must be because it was made so by the common law of England, or by some statute or act of Parliament made prior to the fourth year of the reign of James I., which is of a general nature, not local to that kingdom, and which is not repugnant to or inconsistent with our constitutional or statute law.1

That a written libel may be an indictable offense is not open to question, but we know of no instance in which an oral slander, reflecting on personal character or conduct, has been held to be so in the United States. In England, both before and since the fourth year of the reign of James I., criminal prosecutions for words spoken have not been unknown. But they furnish neither precedent nor authority for the present case. Most of those arose under the statutes of scandalum magnatum, which have always been considered repugnant to and inconsistent with the institutions of this country, and, therefore, as having no legal influence on this side of the Atlantic. Those statutes made it

Wag. Stats. 886, sec. 1.

penal "to speak or to tell any false news, lies or other such false things, of the prelates, dukes, earls, and other nobles and great men of the realm, and also of the chancellor, treasurer, clerk of the privy seal, stewards of the king's house, the justices of the one bench or the other, and the other great officers of the realm." The spirit of these several enactments originated in the earlier martial character of the British constitution. Even the tenures were military, and so were the services. Absolute subordination to superior in estate or condition was considered essential to the welfare and safety of the nation. A consideration of vital importance in the eyes of loyal legislators and judges was that words reflecting on a magistrate in the execution of his office, virtually arraigned the king for the appointment of any unworthy person. But, as in this country we have no prelates, dukes, earls, barons, or other nobles, so we have also no great men,' " in the sense which pertains to that description of person in the British statutes. Here all are equal before the law. An able law writer says: "In this country no distinction as to persons is recognized, and in practice a person holding a high office is a target at whom any person may let fly his poisonous words. High official position, instead of affording immunity from slanderous and libelous charges, seems rather to be regarded as making his character free for any one who desires to create a sensation by attacking it." 1 The picture may be highly colored, but it is sufficiently truthful to illustrate how generally the British laws on this subject are held to be incompatible with American institutions.

66

Another subject of criminal procedure under the British system may be found in blasphemous utterances against the Christian religion and its divine objects of worship. There "Christianity makes part of the law of the land, on account of its connection with the established church." In People v. Ruggles,2 an indictment for blasphemy was sustained on the general ground that the offense was a gross violation of decency and good order," Chief Justice Kent held that, "the people of this country profess the general doctrines of Christianity, as the rule of their faith and practice;" and that "nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful.” It is not material to inquire whether an indictment would be sustained in Missouri upon the same grounds. The case is referred to for the purpose only of exemplifying the particular kind of oral utterances which have been held to be indictable under the common law and British statutes.

1 Folkard's Starkie on Slander, sec. 144, note 1.

26 Johns. 290; 5 Am. Dec. 335.

An examination of all the authorities will show that, not even in England, was there ever a criminal prosecution sustained for words spoken, simply because they were defamatory of a private person not within the privileged class. The privilege there enjoyed by the magistrates was never extended to inferior ministerial officers, or to those whose official character might be supposed to correspond with that of an American chief of police. In America, where there are no privileged classes, prosecution for words spoken have been wholly unknown, except where the words or their tendencies involved something more than mere personal detraction. Starkie says: "An indictment will not lie for mere words not reduced into writing, unless they be seditious, blasphemous, grossly immoral, or addressed to a magistrate while in the execution of his office, or uttered as a challenge to fight a duel, or with intention to provoke another to send a challenge." It is not pretended that the information in the present case brings the words uttered within any of these exceptions. Another high authority says: "Slander is not like libel, an indictable offense. Nor is a single precedent of any criminal proceedings from unwritten imputations upon the character of individuals to be found, except in cases of high treason, have been as constituting rather an offense against the government than an injury to the individual, and being, therefore, seditious, that words reflecting on a magistrate in the immediate execution of his office were for the first time in the reign of Queen Anne held to be indictable." 3

1

and it must

The words charged in the information, in the present case, were purely defamatory of the persons mentioned-accusing them of having formed unlawful combinations for the commission of certain misdemeanors. There was nothing to bring them within any known exception to the general rule that slanderous words not reduced to writing constitute no offense against the criminal laws of this State. The demurrer to the information was properly sustained. All the judges concurring, the judgment is affirmed.

1 Starkie on Slander, sec. 758. 2 Bailey v. Dean, 5 Barb. 297.

3 Reg. v. Langley, 2 Ld. Raym. 1060; Holt' 644; Townshead on Slander (3d ed.), 66, note 3.

SLANDER-DEFENCES TO CHARGE OF IMPUTING UNCHASTITY TO

FEMALE.

PATTERSON v. STATE.

[12 Tex. App. 458.]

In the Court of Appeals of Texas, 1882.

In a Prosecution for Slander by imputing a want of chastity to a female, the defendant may prove in justification: 1. That the particular imputation which he has made against the female is true. 2. That her general reputation for chastity at the time the slander was uttered by him was bad.

APPEAL from the County Court of Gonzales. Tried below before the Hon. J. S. CONWAY, County Judge.

The indictment charged the slander of Catherine Eugenia Smith, an unmarried female, by imputing to her a want of chastity. The two opinions rendered in this case disclose the nature of the case. The punishment assessed by the verdict of guilty was a fine of five hundred dollars

The charging part of the indictment is set out in the opinion on the motion for rehearing. Conforming to the direction of the court in the original opinion, the substance of the defendant's bill of exceptions is here incorporated.

Bill of exception recites: 1st. That defendant called the witness Burch, who stated that at a party at Mrs. Patterson's house over three years ago, he had been in the dining-room, and on coming out he saw Miss Kate Smith and Mr. Patterson lying on a bed together in a little side room, and he spoke to them and said: "Jim Patterson." Here the witness was stopped by the prosecution, and objection was made that the defendant could not be allowed to prove any acts going to show a want of chastity on the part of Miss Smith except with the defendant himself or Joseph Perkins (the specific imputations), and that defendant must be confined to testimony rebutting the circumstances set out in the indictment, or to Miss Smith's general reputation for chastity; which objection was sustained. 2d. Defendant asked witness Webber if he had ever had any conversation with Miss Smith about her relations with defendant; if so, when and where, and what she said; which was excluded upon the State's objection that the declarations of Miss Smith could not be heard in evidence, she not being a party to the case. 3d. Defendant asked the witness Webber if he had ever had a conversation with Miss Smith about the witness having but one testicle; if so, when and where. 4th. If the witness Webber had ever conversed with Miss Smith when they had talked about witness building a house