
    POOL v. STATE.
    (No. 9158.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.)
    Libel and slander <&wkey;l52(2) — Indictment without innuendo not sustained.
    An indictment for libel, based on a lengthy article containing matter clearly not libelous, will be quashed when it has no innuendo, an explanatory or directory averment to indicate libelous parts.
    Appeal from Comanche County Court; F. J. Reese, Judge.
    J. B. Pool was convicted of libel, and he appeals.
    Reversed, and prosecution ordered dismissed.
    G. E. Smith, of Comanche, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is libel; punishment fixed at a fine of $250.

The prosecution is based upon an alleged typewritten communication addressed to R. B. Creager of Brownsville, Tex., and purports to bear the signatures of J. B. Pool and a number of other persons who are described in the document as patrons of the Sipe Springs, Tex., post office, in which they protest against the appointment of R. A. Foster as postmaster at Sipe Springs and ask the said R. B. Creager, as an influential Republican, to use his influence to prevent the appointment of Foster for various reasons. These reasons consist of a variety of statements and cover several typewritten pages of the record.

The communication charges that Foster was a disloyal citizen; that he is “yellow - through and through”; that he opposed the policy of the government during the late war; that he refused to buy government securities or to contribute to the Red Cross and other benevolent organizations; that it is understood that he pretends to be a member of the Republican party, when, in fact, he has always affiliated himself with the Democratic party; that his father-in-law was postmaster and during his incumbency had to make good a shortage of $500 which was occasioned by confusion resulting from the incompetency of the children of the postmaster, one of whom was the wife of Poster; that, if appointed, he would probably use her as an assistant; that Poster was unpopular in the community; that his appointment as temporary postmaster was opposed by numerous persons in the community; that Poster’s conduct towards the former postmistress, Miss Minnie Ashinhurst, was such as rendered him unworthy to succeed her; that she was a Republican and the daughter of a Republican, and had been postmistress for 17 years; that her application for reappointment by President Harding was indorsed by a great majority of the people in the community; that Poster failed to sign the in-dorsement; that Bliss Ashinhurst lost her life in an automobile accident; that Foster refused to buy flowers for her funeral.

Appellant disclaims any desire to name a postmaster, but commends other applicants, and especially protests’ against the appointment of Poster for the reasons, in substance, stated above.

The indictment concludes with the statement that the writing imputes that Poster is guilty of acts and omissions which are disgraceful to him as a member of society and the natural consequence of which is to bring him into contempt with honorable persons. The indictment is not materially different from that under consideration in Potter v. State, 267 S. W. 486, 99 Tex. Or. R. 47, and the language of the court touching .the indictment, so far as applicable to the one at present under consideration, is here quoted:

“There nowhere appears in said pleading any innuendo averment, or explanatory or directory statement, as to what part or particular language, used in the lengthy article referred to, is asserted to be that which imputed dishonesty to said candidate. That the major part of said article does not contain such language is evident from inspection; in fact, if any of said article so states, it is a matter of inference and conclusion, and this court has often held that it is not enough to set out such lengthy articles containing such matter which is clearly not libelous, but that there should be innuendo, explanatory or directory averment, so that the accused "primarily, and the courts before whom he has been haled secondarily, may focus their attention on the very language deemed objectionable, and prepare and try the case with such pointed issue before them, and that they may not be compelled to seek here and there or try out this vagrant expression or sift those dubious words in an effort to arrive at what may be finally claimed by the prosecutor as the libelous utterance. Nordhaus v. State (Tex. Cr. App.) 40 S. W. 804; McKie v. State, 37 Tex. Cr. R. 544, 40 S. W. 305; Byrd v. State, 38 Tex. Cr. R. 630, 44 S. W. 521; Squires v. State, 39 Tex. Cr. R. 96, 45 S. W. 147, 73 Am. St. Rep. 904; Potter v. State, 86 Tex. Cr. R. 380, 216 S. W. 886.”

In refusing to sustain the motion to quash the indictment, we are of the opinion that the learned trial judge fell into error, for which reason the judgment of conviction is reversed, and the prosecution ordered dismissed. 
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