
    GAMBOA v. STATE.
    (No. 7403.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.)
    1. Criminal law <§=>97( I)— Prosecution for slander can only be based on statements made within territorial boundaries.
    Where defamatory statements have been made in another country, and also within this country, a prosecution for slander can only be based on the statements made in this country.
    2. Libel and slander <§=» 155 — Evidence of defamatory statements admissible on issue of intent though such statements could not be basis'of prosecution.
    Though defamatory statements made without the country cannot be the grounds for a prosecution for slander, evidence of such statements is admissible on the issue of intent in a prosecution for other subsequent statements.
    3. Libel and slander <@=»I52(5)— Proof in prosecution for slander held at fatal variance with averments in information.
    Where an information charged slander in that defendant accused an unmarried woman of want of chastity by the words “C. is not a virgin, she is a street walker and belongs to the street, etc.” and the proof showed that the only words uttered in Texas were “C. is not a virgin,” there was a fatal variance between the averment and the proof, though there was proof that the words charged had been spoken in Mexico.
    Appeal from El Paso County Court at Law; J. M. Deaver, Judge.
    Juana Fernandez de Gamboa was convicted of slander, and she appeals.
    Reversed and remanded.
    Owen & Bridgers, of El Paso, for appellant.
    E. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is slander; punishment fixed at a fine of $100.

The information charged that appellant imputed a want of chastity to a female by the use of these words:

“Carmen Nunez, a single woman,' who had theretofore never been married, a want of chastity to wit: The said Juana Fernandez. de Gamboa, did then and there in the presence of Antonio Garcia, and divers other persons, falsely, maliciously, and wantonly say, in the Spanish language, of and concerning the said Carmen Niihez: ‘Carmen Nuñez, no es virgen 6 señorita; ella es de la calle y pertinece & la calle. Venga Ud á mi casa, y le provaré con cartas que ella es de la calle y no es virgen 6 señorita,’ which said Spanish translated into the English language is and means: ‘Carmen Nunez is not’ a virgin, she is a street walker, and belongs to the street. Come to my house and I will prove by letters that she is a street walker and not a virgin.’ ”.

If we properly comprehend the evidence which tvas introduced by the state, if goes to show that Carmen Nunez was an unmarried woman; that the appellant, while in the city of Juarez, republic of Mexico, had a conversation with the prosecuting witness in which there was language used imputing a want of chastity to Carmen Nunez. At the time the conversation took place, the witness and appellant and others were riding in an automobile. After the language was used, they crossed the river and came to the city of El Paso, Tex., and while in El Paso, appellant requested the witness to .go to her house in order that she might exhibit some letters, which would prove that Carmen Nunez was not a “señorita.” The Spanish words used on the occasion are these: “Por le prover Carmen no es señor-ita.” The use of any defamatory, language was denied by the appellant and other witnesses who were present. The testimony was given through an interpreter. There was a contention touching the meaning of the word “señorita” as. used in the Spanish words spoken in El Paso.

In our judgment, there was a fatal variance between the averment and proof. The offense can rest alone upon the language used in El Paso. That, used in-Juarez was admissible upon the issue of intent, but not as a basis for the prosecution. The language used in Texas was that Carmen Nunez was not a “señorita.” The meaning of this, it seems, is debatable. The Spanish' words set out in the indictment differ materially from those proved to have been uttered in El Paso. Their English translation is different. As translated, the words mean:

“Carmen Nunez is not a virgin, she is a street walker, and belongs to the street. Come to my house and I will prove by letters that she is a street walker and not a virgin.”

The words used in Texas, as translated, mean “Carmen Nunez is not a virgin.”

See Humbard v. State, 21 Texas App. 200, 17 S. W. 126; Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340; Hasley v. State, 57 Tex Cr. R. 400, 123 S. W. 596, 136 Am. St. Rep. 968; Woods v. State, 58 Tex. Cr. R. 103, 124 S. W. 918; Adams v. State, 62 Tex. Cr. R. 426, 138 S. W. 117; Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388.

The variance is deemed fatal. The judgment is therefore reversed, and the cause remanded. 
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