
    Hamp Lagrone v. The State.
    1. Slander — Indictment.— Though in general it is sufficient to cnarge an offense created by statute, in the language of the statute, there are to this rule well established exceptions, of which slander as defined in article 645 of the Penal Code is one; in charging which the indictment, to be sufficient, must set out the words used. It is not sufficient to charge that the defendant “ did unlawfully, wilfully, maliciously, wantonly and falsely, orally impute to S. L., an unmarried female, a want of chastity,” etc.
    2. Same — Evidence.—The law presumes the chastity of every woman, and this presumption is a sufficient answer to the position that it was not within the power of the Legislature to dispense with proof on the part of the State showing the falsity of the slanderous imputation of want of chastity.
    Appeal from the County Court of Milam. Tried below before the Hon. W. J. King, County Judge.
    The opinion discloses the nature of the case. The punishment imposed was a fine of §100.
    
      Ford & Ford, and E. L. Antony, for the appellant.
    
      H. M. Holmes, for the State.
   Willson, J.

This prosecution is by information for a violation of article 645 of the Penal Code. The information charges that the defendant did “unlawfully, wilfully, maliciously, wantonly and falsely, orally impute to Sarah Lagrone, an unmarried female, in this State, a want of chastity, and in the manner and form aforesaid the said Hampton Lagrone did then and there slander the said Sarah Lagrone.” Among other objections made to this indictment is the one that it is not sufficiently certain, in this, that it does not set out the words constituting the oral slander.

The offense is charged in this information in the language of the statute, and in general it is sufficient to thus charge an offense created by statute. (Estes v. State, 10 Texas, 300; Antle v. State, 6 Texas Ct. App. 202.) But to this general rule there are well established exceptions. One of the requisites of an indictment or information is that it set forth the offense in plain and intelligible language. (Code Crim. Proc. arts. 420-430.) It is also provided that “the certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” (Code Crim. Proc. art. 422.) In commenting upon the last cited provision the Supreme Court in Alexander v. State, 29 Texas, 496, says: “ This does not mean merely that the indictment must allege that the party accused has done some act which is an offense against the laws, nor does it mean that it is enough to say in an indictment that the accused committed murder, or an assault, or stole a horse, or the like. There must be some particularity, or what the law calls certainty, in an indictment. The particular act of which the State complains must be set forth in plain and intelligible words, so that the party who is accused may know what he will be called to answer, and may be able to prepare for his defense.” In State v. Hanson, 23 Texas, 233, the defendant was charged with publishing an indecent newspaper. It was held that the composition or print should have been set out, or such description given of it as that the court could judge of its character in reference to the alleged indecency and obscenity. The facts constituting the offense must be averred directly, forcibly and with certainty, and not by way of argument or inference. (Parker v. State, 9 Texas Ct. App. 357; Gaddy v. State, 8 Texas Ct. App. 127.)

The offense created by art. 645 of the Penal Code is of the same nature as the offense of libel, and of the common law offense of oral slander, and also of the common law offense of oral blasphemy. In all of these offenses it is essential to set forth in the indictment the writing or language which constitutes the libel, slander or blasphemy. (2 Bish. Cr. Pro. 783,787, 807, 123; 1 Bish. Cr. Proc. 530; 2 Whart. Cr. L. 1656; 2 Whart. Prec. 939; Id. 963.) The State of Alabama has a statute creating the offense of defamation, which is similar to our statute of slander. (Code of Ala. art. 4101.) A form for an indictment under that statute is prescribed in the Code (Form No. 56), which requires that the words spoken, written, etc., shall be substantially set out. (See Haley v. State, 63 Ala. 83.)

Upon principle and upon authority we conclude that in charging the offense created by art. 645, Penal Code, the indictment or information is bad unless it sets out, at least substantially, the language or writing constituting the imputation of a want of chastity. We think the defendant is entitled to be informed in the charg’e of the particular slander which he is called upon to answer, that he may prepare his defense. He is allowed under the statute to justify, by proving the truth of the imputation. How can he come to the trial prepared to avail himself of this defense, unless he has been informed of the particular imputation charged against him %

Another question upon this statute is raised and discussed by defendant’s counsel, which we deem it proper to determine. It is contended that it was not within the power of the Legislature to dispense with proof on the part of the State showing the falsity of the imputation. (Code Crim. Proc. art. 646.) It is, we think, a sufficient answer to this proposition to say that the law presumes a female to be chaste, until the contrary is proved. The law presumes every man and woman to be sane, to be honest, virtuous and innocent of crime, and it devolves upon the party denying the truth of the facts thus presumed, to prove them untrue. In the case of a slander of a female, the law’s presumption is that she is chaste, and when a want of chastity is imputed to her, the law presumes the imputation to be false, and proof of its falsity is thus supplied by the presumption of the law.

Holding, as we do, that the information is fatally defective in not setting.out the slanderoiis words, the • judgment of the court below is reversed and the prosecution is dismissed.

Reversed and dismissed.  