
    OWENS v. STATE.
    (No. 4299.)
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1916.)
    1. Libel and Slander 4*=»152(5) — Evidence —Indictment and Proof — 'Variance.
    Since the facts of the alleged slander must be proved and must correspond with the allegations in the indictment, the offense of slander alleged to have been committed by communicating certain words to certain persons is not made out by a showing that such words were communicated to one of such persons apart from the others.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 426, 427; Dee. Dig. 152(5)J
    2. Libel and Slander <S=-1B2(5) — Evidence —Indictment and Proof — 'Variance.
    An indictment for slander alleging that accused said of a certain girl that he had had sexual intercourse with her, will not support a conviction where the only evidence was that of certain witnesses that he told them that he had got a piece from her, since the language of an indictment for slander must be proved as laid or substantially so.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 426, 427; Dee. Dig. <§=»
    3. Criminal Law <&=3678(1) — Trial — Election of Offenses — When Necessary.
    Where, in a prosecution for slander, evidence of alleged slanderous statements on several occasions is introduced, it is error to refuse to compel the state to elect upon which occasion it will rely.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1580; Dec. Dig: <§=^678(1).]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Grover Owens was convicted of slander, and he appeals.
    Reversed and remanded.
    A. W. Gibson, of Rogers, and W. W. Hair, of Temple, for appellant. O- 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of slander, his punishment being assessed at a fine of $500.

The information, omitting formal parts, charges:

That appellant did “unlawfully, orally, maliciously, and wantonly impute to a female in this state, to wit, Ethel Ford, a want of chastity, the said Ethel Ford being then and there an unmarried female, in this, to wit: The said Grover Owens did then and there in the presence and hearing of Joe Lawhorn, Lester Law-horn, Lester Mays, and divers other parties say that he had had sexual intercourse with her, the said Ethel Ford, against the peace and dignity of the state.”

It will be observed that there is but one count in the information, and it charges the imputation of slander in the presence of the three above-named parties. Lester Mays testified that about a year before he testified defendant and himself were returning from prayer meeting at night; “no other person was with us; on that occasion defendant stated to me that he had had sexual intercourse with Ethel Ford.” Upon cross-examination, however, he makes this statement:

“Defendant did not say that he had had sexual intercourse with Ethel Ford; what he did say was, that he had gotten a piece of -from Ethel Ford. No one was there except defendant and myself, and the defendant never has at any time made that or any like statement to me when Joe Lawhorn or Lester Lawhorn, or any other person was present.”

Lester Lawhorn testified:

“Some time last fall while myself and Jim and Olan Bean were engaged in constructing a fence on my brother’s place, defendant came to where we were, and in the presence and hearing of myself and the two Bean boys said that on the road near Mr. Kinsey’s house that he had had sexual intercourse with Ethel Ford.”

On cross-examination, however, he said:

That ho “did not use the language ‘sexual intercourse’; what he did say in the presence of myself and the two Bean boys was, that he had gotten a piece from a girl on the way from church. Defendant did not say what girl it was in the presence of myself and the two Bean boys, but left us to surmise or guess who it was, but a little later after the defendant and I had separated from the Bean boys and were out of their hearing, I guessed it was Ethel Ford that he had been alluding to, and he admitted that it was.”

He further testified:

“Joe Lawhorn and Lester Mays were not there on that occasion, nor was there any person present on that occasion except myself and the two Bean boys and the defendant. Defendant never did at any other time say anything about his relations with Ethel Ford, except the time I am telling about, and no one was present except the defendant and myself at the time I guessed it was Ethel Ford he had reference to.”

There is a lot of testimony in the record that is thought to be material, in fact most of it, that brings in review the character and reputation of the girl, affirmed to be good by the state and denied by appellant’s evidence. There were several questions presented of rather vital importance on the testimony quoted..

Appellant contended, and contends here, that there was a variance between the proof and the allegation; second, that it brought in review several statements made at different times by appellant not in the presence of the parties set out in the information when they were together; third, that appellant objected to the testimony of these different witnesses because at variance with the allegations in the information; fourth, that if the testimony is admissible, then there being different transactions and only one count in the information, the state should have been required to elect upon which transaction it would rely for a conviction. These matters were presented by bills of exception to the introduction of the testimony, to the failure of the court to charge in accordance with the same idea and theory, to the overruling of his exceptions to the admission of testimony, and the rulings of the court refusing to require he state to elect. These matters are presented not only by bills of exception, but by special charges requested and refused, and by special exceptions to the court’s charge properly taken and verified.

Wherever the state sets out slander, the facts as stated must be proved and must correspond with the allegations in the information. Where the information, as in this ease, alleges that the slanderous words were uttered in the presence of three named parties, the proof must show that the imputation was made under the circumstances set out. It is a variance to allege that the imputed slander was uttered in the presence of two or more parties, when the state’s evidence shows that it was not so uttered, but was uttered at different times and to only one when the others were not present. These cases are well known. Some of them may be found in Mr. Branch’s Criminal Law, § 608. That author uses this language:

“If words are alleged to have been uttered to two persons at the same time, they must be proved as alleged, and proof that they were made to each of the parties at different times is a variance.” Knight v. State, 49 S. W. 383.

Again he states the rule:

“If the indictment unnecessarily names more than one person as having been present when the slander was- uttered, the allegation must be proved as laid, being descriptive.” Neely v. State, 32 Tex. Cr. R. 370, 23 S. W. 798.

This seems to be well settled.

Another variance urged by appellant is well taken. The language used in the information is not the language to which the witnesses testified. While on direct examination they used the expression “sexual intercourse,” yet upon cross-examination they testified that such language was not used. The language that was used on these different occasions has been set out above and unnecessary here to repeat. It is a well-settled rule in Texas by the decisions that the language must be proved as laid, or substantially so. The language set out in the information is not sustained by the language used by the witnesses. The writer does not care to follow or elucidate this question. One of the later opinions was rendered by Judge Harper in the ease of Golden v. State, 72 Tex. Cr. R. 19, 160 S. W. 957. See Simer v. State, 62 Tex. Cr. R. 515, 138 S. W. 388. This opinion was also written by Judge Harper. Again, when the testimony was introduced from the witnesses Mays and Lawhorn, the objection of the defendant should have been sustained on the theory of variance, if for no other reason; not only as to the directness of the slander in the presence of these parties together, but also as to the language used by defendant as they testified compared with that set out in the information. In addition to the decisions already cited see Collins v. State, 39 Tex. Cr. R. 33, 44 S. W. 846; Franklin v. State, 53 Tex. Cr. R. 550, 110 S. W. 909. Also see Mr. Branch’s Crim. Law under head of “Slander.”

The court having admitted this testimony, it was error then to refuse to require an election between these offenses, but that will pass out by reason of the variance above discussed. There were other charges asked along the same line submitting these matters which were refused by the court. We are of opinion they should have been given, but they are not discussed because upon another trial, should further prosecution be had, the case will be tried in accordance with what has already been said. The information must correspond to what has been above said as found in a long line of cases discussing this and kindred questions. We are not discussing a case where there are several counts in the information. This information had but one count. There were also some exceptions to the charge because it was on the weight of the evidence and shifted the burden of proof. These matters will be avoided upon another trial. As the record is presented to this court it is thus briefly disposed of, because it is thought unnecessary to write at length.

The judgment is reversed, and the cause remanded.

HARPER, J., absent. 
      ^s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     