
    BOECKLE v. STATE.
    (No. 9319.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Appeal Reinstated Jan. 13, 1926.)
    1. Criminal law <&wkey;l087(l) — On failure of record to show proper recognizance, appeal from conviction of slander will be dismissed.
    On appeal from conviction for slander where record did not show proper recognizance, but only stated that recognizancé was taken, appeal will be dismissed.
    On Motion to Reinstate Appeal.
    2. Criminal law <&wkey;M 131 (7)— On -filing proper appeal bond and certified copy of judgment, appeal formerly dismissed will be reinstated.
    Where record on appeal from conviction for slander did not show judgment or proper recognizance, and after dismissal,' accused filed proper appeal bond, accompanied by certified copy of judgment, appeal will be reinstated and considered on its merits.
    3. Libel and slander <&wkey;>l56 — Evidence of statements by accused held insufficient to support conviction .for slander because not shown to refer to- person alleged.
    Evidence of slanderous statement concerning “old lady M.,” without testimony that “old lady M.” referred to was J. M. charged to have been slandered, was insufficient to sustain conviction for slander.
    4. Criminal law <&wkey;306 — State must make out case by sufficient proof.
    No inferences will be indulged against one accused of crime, and state must make out case by sufficient proof.
    5. Libel and slander &wkey;>!56 — Failure to prove name of alleged slandered female is fatal to conviction.
    In prosecution for slander, failure to prove name of alleged slandered female is fatal to conviction.
    6. Libel and slander <§=»I48 — Statements of accused to constable held not privileged.
    Statements of accused to constable, that there was a bootlegging joint on one side of accused and a whore house on the other, and that “old lady M.” was sleeping with other men, accompanied by statement that accused did not, wish to file complaint, was not privileged communication.
    Appeal from San Patricio County Court; J. C. Houts, Judge.
    H. K. Boeckle was, convicted of slander, - and he appeals.
    Reversed and remanded.
    
      W. B. Pope and B. D. Tarlton, both of Corpus Ohristi, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for tbe State.
   BAKER, J.

Tbe appellant was convicted, in tbe county court of San Patricio county, for tbe offense of slander, and bis punishment assessed at a fine of $100. Tbe record fails to show a proper recognizance, and tbe only reference made to same is tbe following: “Recognizance of .defendant with Joe Miscovicb and Alex Bonarden as sureties taken.” This is insufficient to sustain an appeal, and without a proper recognizance • this court is without jurisdiction. This doctrine is now so well established in this state, we think it is hardly necessary to cite authorities in support thereof. In Branch’s P. C. § 611, p. 313, it is stated:

“An appeal in a case of misdemeanor will be ■dismissed by the Court of Criminal Appeals if the record does not contain a proper recognizance or show that the defendant has been continuously in jail since the conviction”— citing Young v. State, 8 Tex. App. 81, Sandifer v. State, 63 Tex. Cr. R. 361, 139 S. W. 1155, Brinson v. State, 68 Tex. Cr. R. 49, 150 S. W. 776, and many other authorities.

Tbe record fails to show either. In passing, we deem .it prudent to call attention to the fact that there is no judgment shown in the record also. For the reasons stated, the appeal is dismissed.

The appellant is granted 15 days from this datp within which to file a proper bond.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and' approved by the court-.

On Motion to Reinstate Appeal.

BATTIMORE, J.

Appellant has filed a proper appeal bond, accompanied by a certified copy of the judgment rendered in the court below, and the appeal will therefore be reinstated and now considered upon its merits.

It is alleged in the information and complaint that appellant slandered one Josephine Massi. The statement of facts presents the testimony of but one witness, who ' testified that appellant came to his place of business on the morning of August 11, 1924, and said:

“There is a bootlegging joint on one side of me and a whore house' on the other. I asked him what about it, and he said, ‘You know that old lady Massi?’ I said, ‘Yes,’ and asked him if he wanted to file any .complaint, and he said, ‘No.’ Then he said, T am not going to put up with it any more, she is even sleeping with other men.’ ”

There is nothing in the testimony to show that the “old lady Massi” referred to by the witness was Josephine Massi. No inferences will be indulged against one accused of crime. The state must make out it£ ease by sufficient proof. Failure to prove the name of the alleged slandered female is fatal to a conviction. Humbard v. State, 21 Tex. App. 200, 17 S. W. 126.

We think the charge of the court correctly submitted the law of the case. We are not in accord with appellant’s contention that the use of the language to the constable under the facts of this case wakes it a privileged matter.

For the error mentioned, the judgment will • be reversed, and the cause remanded.  