
    ALSUP v. STATE.
    (No. 6281.)
    (Court of Criminal Appeals of Texas.
    Dec. 14, 1921.
    Rehearing Denied March 8, 1922.)
    1. Libel andi slander <&wkey;l45 — Charge against injured party need not be made in direct tBrms.
    To constitute criminal libel it is not essential that the act or omission be charged against the injured party in direct terms; it may be expressed by insinuation or irony, so long as the statements are so plain and unmistakable that no intelligent person can fail to understand or comprehend what is by them intended.
    2. Libel and slander &wkey;>145 — Acts charged held to be disgraceful, though not penal.
    A printed statement, charging by inference that a candidate for office, after his opponents had accused him of misrepresenting his age to avoid the draft, had changed an entry in the family Bible and had removed the tombstone on the grave of his sister, the'entry of whose birth in the Bible he claimed to be his own, charges him with conduct which, though not penal, was disgraceful to him as a member of society, the natural consequences of which was to bring him into contempt among honorable persons, so as to be libel, under Vernon’s Ann. Pen. Code 1916, art. 1157, subd. 2.
    3. Libel and slander &wkey;H45 — Statement held to charge candidate with “dishonesty” rendering him “unworthy” of office.
    A charge imputing to a candidate for the office of Governor, in his statement as to his age to avoid the draft, and falsification of entries in a family Bible and removal of a dead sister’s tombstone to prevent discovery of the truth, charges that he is 'dishonest and therefore unworthy of such office, so as to be libel, under Vernon’s Ann. Pen. Code 1916, art. 1157, subd. 5, since “dishonesty” is not used in the restrictive sense as unfit to be trusted with official duties, but denotes the absence of integrity, a disposition to cheat, deceive, or defraud, and “unworthy” means unbecoming, discreditable, not having suitable qualities or value.
    [Ed. Note. — For other definitions, see Words and Phrases, Unworthy; Second Series, Dishonest.]
    4. Indictment and information <&wkey;l08 — -Information need not allege subdivision of libel statute under which statement comes.
    Though an information charging libel must allege facts which bring the statement uttered by defendant within the standard of libel established by Vernon’s Ann. Pen. Code 1916, art. 1157, it is not required that the pleader designate which subdivision of that article embraces the alleged libelous statement.
    5. Criminal law <&wkey;564(l) — Venue in county where paper was known to have circulated held established.
    Where accused admitted that he sent the statement charged in the information to a newspaper intending to have it published, and knew that such paper had a large and general circulation throughout the state, the venue was sufficiently established to sustain prosecution in the county where the newspaper was circulated and sold, since the evidence showed the statement was published in that county with defendant’s consent and through his efforts.
    6. Libel and slander <&wkey;!43 — Evil design may be inferred.
    The evil design, which is an essential element of criminal libel, requires no specific proof, but may be inferred by the jury from the published matter, in view of Vernon’s Ann. Pen. Code 1916, arts. 1175, 1178.
    7. Libel and slander <&wkey;>!49 — Truth of statement charging disgraceful conduct is no defense.
    Under Vernon’s Ann. Pen. Code 1916, art. 1177, the enumerating of certain circumstances under which the truth of the alleged libelous matter may be urged as a defense, and providing that in other cases the truth of the facts stated in the libel cannot be inquired into, the truth of a statement charging acts which were disgraceful vbut not penal is no defense to a prosecution for publishing such statement.
    8. Libel and slander &wkey;ri 49 — Belief in truth of charge candidate was dishonest is no defense.
    Although truth of the statement made is a defense to a prosecution for criminal libel in uttering a statement concerning a candidate which rendered him unworthy to hold office, under Vernon’s Ann, Pen. Code 1916, art. 1165, the good faith of the author of the statement and his belief in its truth is no defense, if it was not in fact true, though it might mitigate the penalty.
    On Motion for Rehearing.
    9. Libel and slander <&wkey;>l45 — Charge of dishonesty against candidate is not limited to financial matters.
    Vernon’s Ann. Pen. Code 1916, art. 1157, subd. 5, making it libel to publish an untrue statement concerning a candidate which shows him to be dishonest and unworthy of office, is not restricted to statements charging dishonesty with reference to financial matters.
    Appeal from McLennan County Court; Giles P. Lester, Judge.
    Fisher Alsup was convicted of libel, and he appeals..
    Affirmed.
    De Witt Bowmer, of Temple, and A. L. Curtis, of Belton, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. .1.

Appellant was convicted of libel.

From the alleged libelous statements, the following is quoted:

“In the recent Democratic campaign Mr. Bailey introduced public records showing that Pat M. Neff was born in 1872. In reply Neff denounced Mr. Bailey as a liar and a falsifier and claimed that he was bora in 1871. To support his assertion the family Bible of his father Noah Neff was produced, giving the names and birth of all the brothes and sisters of Pat M. Neff.
“The last entry in said Bible read:
“ ‘Patty Morris Neff was born Nov. 26th, 1871.’
“So far as my information goes, I have never heard that Pat M. Neff has ever specifically claimed that this entry in the Bible was made for his birth date. Nor have I ever heard that he claimed that his original name was Patty. Nor has Pat Neff ever anywhere spelled his name with two t’s (Patt). He swore in his application for place on the ballot that it was Pat, and it now so appears on the ticket.
“During the campaign the page in the Bible was photographed in Waco and later was photographed in Dallas and I have copies of both photographs in my possession. The first photograph plainly showed the name to be ‘Patty.’ The second photograph showed the letter ‘y’ erased and the Bible now reads ‘Patt Morris Neff.’ [Here follows the reproduction of the photograph copy.]
“Having recently been informed that the said Patty Morris Neff was born Nov. 26th, 1871, and was a sister of Pat M. Neff, and had died when about a year old, and that her grave was marked by a tombstone in the Post Oak graveyard, situated about three miles south of Oglesby, in Ooryell county, Texas, for my own satisfaction, and for the purpose of getting all the facts of a controversy which had been the subject of so much discussion in the campaign, I, in company with a friend, went to said Post Oak graveyard.
“There I found nine graves of the Neff family on one lot, all marked by tombstones and inscriptions on same, except one, which did not have the tombstone-, but there remained a limestone foundation for the missing tombstone. I examined carefully said foundation. It is limestone block about 16 inches square and about 10 inches thick (deep). In the top surface is cut a trench or groove, some 2 inches wide and 12 inches long in which to fit the marble slab or tombstone.
“Three of the graves in the same row, two south and one north of it, had similar foundations, in the grooves of which were small upright marble slabs bearing marks as indicated by the diagram printed below. While the grave farthest north is marked by a marble stone of different form. All appearances indicated that the stone had been recently removed. A large branch of sedge grass about two feet high and in bloom which stood near the head of the grave had been stepped on and pressed so firmly that all the stems were bent or broken just at the top of the ground, and it lay still green, full length along the earth. Also the violent jerk or pull that lifted the slab out of the groove moved the foundation an inch or so to the east, leaving exposed the bare ground while .the grass grew close and even partially covered the foundations-. It was obvious that the feet of the person were firmly pressing on the large bunch of sedge grass and broke it down while tugging at the slab. [Here follows diagram of burial plot, showing graves; also one with the missing headstone.]
“By checking the tombstones against the Bible records we find that all the Neff children are buried in this graveyard with the exception of Benjamin Neff, who is buried at McGregor, Texas (and I have seen his tomb there), and Sallie Jane and Samuel Herbert Neff, who are yet living.
“The question then arises: ‘From whose was the tombstone taken?’
“ ‘If said missing tombstone did not bear the inscription of something like Patty, then what was on it?’
“ ‘If said tombstone did not bear something like Patty, then why was it necessary to erase the “y” from the family Bible between Waco and Dallas?’
“ ‘Why would anybody want to remove said tombstone if it did not have on it Patty or something like it?’
“ ‘If the missing tombstone was for some other child of the Neff family, then what was its name and why was it not entered in the family Bible?’
‘If the missing tombstone was not for one of the Neff children, then why was the grave put in the center of the graves of the Neff children?’
“ ‘Mr. Voter, as I am a candidate for superintendent of public instruction, on the American Party ticket, I will not make any charges or argument, but will leave you to answer these questions for yourself. I simply give you the facts as I found them, and as anybody else can find them on the ground. After I had visited the graveyard, I immediately sought out one of the citizens of the community, and had him go .with me and I pointed out to him the conditions as I have described them and called his attention to the missing tombstone.’ ”

“Libel” is defined as follows:

“He is guilty of ‘libel’ who, with intent to injure, makes, writes, prints, publishes, sells or circulates any malicious statement affecting the reputation of another in respect to any matter or thing pointed out in this chapter.”

Omitting items 1,.3, and 4, which are without bearing on this case, article 1167 of the Penal Code reads thus:

“The written, printed or published statement, to come within the definition of libel, must convey the idea either— * * *
“2. That he has been guilty of some act or omission which, though not a penal offense, is disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons; or * * *
“6. That any person in office, or a candidate therefor, is dishonest, and therefore unworthy . of such office, or that while in office he has been guilty of some malfeasance rendering him unworthy of the place.”

The court overruled the motion to quash the informatibn and submitted the case to the jury on the theory that they might he authorized to find that the language conveyed the idea that the conduct imputed to Pat M. Neff had been disgraceful, though not penal, and that its natural consequences would be to bring him into contempt among honorable persons, and that he was dishonest and therefore unworthy of the office which he was seeking. It also held that the evidence sustained the charge contained in the information.

This appeal calls in question the correctness of these rulings of the court. The evidence is sufficient to support the finding of the jury that Pat M. Neff, in paying his poll tax, had signed a statement going to show that 1872 was the year of his birth; and that a roster of the members of the Legislature gave like information; that, if this was the correct date, it would have been incumbent upon him to register for draft in the United States Army; that this was not done by him; that in the political campaign use of these matters was made against him; that, on the issue thus arising before the public, the register of births in the family Bible and the testimony of members of his family, including his mother, fixed the date of his birth at 1871; that he explained that before the controversy arose he labored under a mistake of fact as to the year of his birth. The family Bible showed the date of birth of a number of brothers and sisters and also bore the inscription, “Patty Morris Neff, born November 26, 1871”; that in his youth and infancy he was called “Patty.” The evidence also supports the finding that the date of his birth was November, 1871? that the entry in the Bible was intended for his name; that he had no sister born at that time bearing that name; that all the graves of the deceased members of the Neff family had headstones marking their graves; that none of these had been removed; that the written statements set out in the information were signed by the appellant and by him delivered to the publishers of the “Ferguson Forum,” a newspaper published in Temple, in Bell eounty, Tex., having a circulation throughout the state, including McLen-nan county; that there was no mutilation of the inscription.

It was conceded that there was a discrepancy between the date of Pat M. Neff's birth, as given in his poll tax affidavit, and in the entry in the family Bible; that he had failed to register for draft service; and that these matters became the subject of adverse comment in the political campaign. The appellant testified that these facts were true, and testified that, at the time the document was written and published, he believed all of the statements of facts contained in the document were true; that he, in fact, had seen newspaper reproductions of photographs of the entry in the Bible showing the discrepancy in spelling; that he had examined the cemetery and stated the facts as he saw them and as they were set out; and that his statements concerning information received by him were true. From his testimony, we understand that, at the time of the publication, he regarded the facts which were then in his possession and which were disclosed in the article were such as rendered Pat M. Neff unworthy to hold the office which he was seeking; and that he felt it his patriotic duty to make known to the public the facts which were in his possession bearing upon the issue. The statement conveys the idea that, in his race for Governor, his veracity was attacked by the exhibition of a sworn document to the effect that he was born in 1872. He denounced this as false, claiming that he was born in 1871. It conveys the idea that, in support of his attack upon the veracity of his opponent, he produced the family Bible, wherein were recorded the names of the children born to his father and mother; that his name was not in the Bible when produced, but that his sister was shown thereby to have been born on the date in 1871 which he claimed for his own; that this entry, while in his possession, was changed so as to falsely show that it recorded the date of his birth in 1871; that, to avoid the refutation of his false position touching his age, he had been instrumental in desecrating the grave of his sister and surreptitiously removing her tombstone so that it would not reveal the truth.

To constitute “libel,” it is not essential that the act or omission be charged against the injured party in direct terms. It may be expressed by insinuation or irony. Wharton’s Crim. Law, vol. 3, § 1915; also section 1925; Jones v. State, 38 Tex. Cr. R. 367, 43 S. W. 78, 70 Am. St. Rep. 751; Mankins v. State, 41 Tex. Cr. R. 662, 57 S. W. 950; Lockhard v. State, 43 Tex. Cr. R. 64, 63 S. W. 566; Squires v. State, 39 Tex. Cr. R. 102, 45 S. W. 147, 73 Am. St. Rep. 904. No more is required than that the statements' in the publication be so plain and unmistakable in their meaning that no intelligent person can fail to understand or comprehend what is by them intended. Jones v. State, 38 Tex. Cr. R. 368, 43 S. W. 78, 70 Am. St. Rep. 751; Morgan v. Livingston (S. C.) 2 Rich. 573; Commonwealth v. Blanding, 3 Pick. 304, 15 Am. Dec. 214; Kruse v, Rabe, 80 N. J. Law, 378, 79 Atl. 316, 33 L. R. A. (N. S.) 469, Ann. Cas. 1912A, p. 477.

We think that, fairly construed, the conclusion cannot be escaped that the statement, in its entirety, set out in the information, conveyed the idea that Pat M. Neff had been guilty of acts which, though not penal, were disgraceful to him as a member of society, and that the natural consequence thereof was to bring him into contempt among'honorable persons.

We think also that, if in his efforts to secure election to office and to acquire the honors and emoluments thereof he was guilty of the disgraceful conduct which the statement imputes to him, the fraud and falsehood implied and the despicable means of preventing the discovery of the truth, he was, within the meaning of the statute, “dishonest” and unworthy of the office. This court, in the case of Squires v. State, 39 Tex. Cr. R. 102, 45 S. W. 147, 73 Am. St. Rep. 904, drew a distinction between the kind of conduct of a candidate for office which would be disgraceful and bring him into contempt within the meaning of the statute and that which would characterize him as “dishonest” and unworthy of office. Prom the case we quote:

“The indictment shows that, if said circular was true, he was acting the part of a hypocrite and a traitor; and certainly, in our opinion, if guilty of such conduct, it was calculated to bring him into disgrace and reproach among gentlemen, and should justly subject him to the contempt of all honorable persons.”

The conduct there considered was that in which the candidate, being a nominee of one party, secretly sought the support of another, and, as said in the opinion, thus treacherously seeking support in his election. This case is referred to by appellant as an impediment, to sustaining the conviction, and, as applied to the second count, it cannot be denied that it tends to that result. We have been unable to reach a conclusion entirely in accord with the definition of “dishonesty” as given in that case. After discussing the question, the conclusion is stated thus:

“It [dishonesty] means such want of honesty as would go to his personal integrity, and would render him unfit to be trusted with official duties.”

We áre inclined to the view that such definition is too restrictive. “‘Dishonesty’ denotes an absence of integrity; a disposition to cheat, deceive, or defraud; deceive and betray.” Century Dictionary. Unworthy means “unbecoming,” “discreditable,” “not having suitable qualities or value,” “beneath the character of.” Century Dictionary. So under our statute it might be said that the alleged libelous statement must convey the idea that a candidate has done acts which he intended to cheat, deceive, and defraud, and therefore that he has not suitable qualities for, and is beneath the character of, one who should hold the office which he seeks. We think the use of the word • “dishonest” in the statute was not used in a narrow or restricted sense. In other parts of the statute, acts that are penal, vicious, or infamous are referred to. The idea that one who seeks office in the state may be charged with falsehood for an ignoble purpose and with disgraceful acts to cover his falsehood, without conveying the idea that he is dishonest in the sense that he is unworthy of office, finds no sanction in the statute.

Article 1157, supra, furnishes a measure or standard by which to determine whether the alleged libelous matter contained in the pleading conveys the idea that the conduct described comes within any one or more of the subdivisions of that article. It is essential that this appear from the pleading, that is, from reading the matter set out; but it is not required that the pleader designate to which of the subdivisions of the statute the alleged libelous statement pertains. A contrary view was formerly expressed in McKie v. State, 37 Tex. Cr. R. 544, 40 S. W. 305, and other cases, but was later abandoned in Mankins’ Case, 41 Tex. Cr. R. 662, 57 S. W. 950, and Lockhard’s Case, 43 Tex. Cr. R. 61, 63 S. W. 566. When it is intended to charge that a candidate, or officer is dishonest, the pleading should contain an averment to the effect that the party injured was an officer or candidate, as the case may be. Such an averment is found in the second count of the information.

The appellant testified that he wrote the article intending it to be used in influencing the voters against Pat M. Neff, the Democratic fiominee for Governor; that he handed it to the publishers of the “Eerguson Eorum” for publication; that he knew that the Eorum had a broad circulation in Texas and knew that copies of it would be distributed. It appeared in the evidence that the issue of the “Eerguson Eorum” in which the article was published was circulated in McLennan county. Appellant’s contention that the venue was not proved, we think, is not sustained. 1-Iis avowed object in writing the article and giving it to the publisher was to convey to the voters who read the paper the alleged facts contained in the written statement. The contention is based upon the ground that there was no specific testimony that appellant knew that the paper containing the statement would be circulated in McLennan county. His purpose was to influence the voters of the state against Pat Neff. He selected the newspaper in question as a medium to effect this purpose. He knew its circulation extended throughout the state. We deem the evidence sufficient to support the finding of the jury that the statement was published in McLennan county with his . consent and through his efforts. . See Wharton’s Grim Law, vol. 3, § 1947; Ruling Gase Law, vol. 17, p. 464, § 227; Commonwealth v. Blanding, 3 Pick. 304, 15 Am. Dec. 214; State v. Huston, 19 S. D. 644, 104 N. W. 451, 117 Am. St. Rep. 970, 9 Ann. Gas. 382, and note; Penal Code, art. 1164.

The court instructed the jury that, if they believed it tp be true, an acquittal must follow, but further instructed them in a special charge that belief on the part of the appellant in their truth would not suffice to excuse him. This special instruction is made the subject of complaint.

“It is no offense to make true statements of fact or express opinions as to the integrity * * * of a candidate for any- office. Code, art. 1165. ” Penal

In article 1177 there are enumerated certain circumstances under which the truth of the alleged libelous matter may be urged as a defense. In one of these, it is said that, where the publication charges a candidate for office with want of honesty, rendering him unworthy of the place, the truth may be proved as a defense.

The statute also says: “In other cases” than those enumerated “the truth of facts stated in the libel cannot be inquired into.”

The evil design, which is an essential element of criminal libel, requires no specific proof, but may be inferred by the jury from the published matter. Penal Code, arts. 1175 and 1178; Coles v. Thompson, 7 Tex. Civ. App. 666, 27 S. W. 47; Bradstreet v. Gill, 72 Tex. 121, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; Holt v. Parsons, 23 Tex. 9, 76 Am. Dec. 49. As relating to the first count in the indictment, the truth of the matter constituted no defense, and obviously belief in its truth would not do so. Penal Code, art. 1177; Wharton’s Crim. Law, §§ 1971 and 1975. If, however, a candidate for office is dishonest, and therefore unworthy of the office he seeks, the law permits this to be made known to the end that his election may be prevented. Such publication is not prohibited provided it be true. We think, however, that the good faith of the author and publisher will not give him immunity if the facts are not true. His belief in their truth might mitigate the penalty, but it would not bar the conviction. Cyc. of Law & Proc. vol. 25, p. 417, § 323, on the subject of Libel; McArthur v. State, 41 Tex. Cr. R. 639, 57 S. W. 847; Wolff v. Smith, 112 Mich. 360, 70 N. W. 1010. The analogous principle, we think, is stated in Brewer v. Chase, 121 Mich. 526, 80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527, in the following language:

“The substance of the charge is that the acts were committed, and the author cannot shelter himself by showing that he only said what he had heard. The authorities are harmonious that sheh statements are merely repetitions of the charge, and none the less so because the statement was that another had made such charge. In Newell, Sland. & L. 350, it is said that, ‘Every repetition of a slander originated by a third person is a willful publication of it, rendering the person so repeating it liable to an action. “Talebearers are as bad as talemak-ers.” And it is no defense that the speaker did not originate the scandal, but heard it from another, even though it was a current rumor, and he in good faith believed it to be true.’ ”

We find nothing in the record which warrants a reversal of the judgment, and it is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

The information herein contains two counts, one charging libel of

Pat M. Neff as an individual, and the other charging libel of him as a candidate for Governor. No election between said counts was had, and the law of both was submitted, and a general verdict of guilty was returned.

There would seem to be no question of the sufficiency of the evidence to show guilt under the first count, under any authotity known to us; but appellant contends in his motion for rehearing that our opinion relative to what is meant by the use of the word “dishonest,” in subdivision 5, art. 1157, Vernon’s P. O., wherein is contained the definition of “libel,” is unsound and in conflict with a prior decision of this court in Squires v. State, 39 Tex. Cr. R. 96, 45 S. W. 147, 73 Am. St. Rep. 904. An examination of our opinion discloses that we did not base our disposition of this case alone on the conclusion that the alleged libelous matter related to Gov. Neff in his character as a candidate for office, but that it discussed that feature of the charge, and did uphold the jury’s verdict even if based on same, as well as if based on that portion of the law of libel relating to the bringing into contempt honorable persons and being disgraceful to one as a member of society, which pertain to the other portions of said article 1157. Subdivision 5 of said article is quoted in our opinion and is here referred to. In view of appellant’s insistence that the word “dishonest,” as therein used, should be given the restricted construction seemingly placed thereon in the Squires Case, we have again considered the matter. Said subdivision 5 seems to relate to and define that which is libelous when spoken of a candidate for office.

Honesty in financial transactions is only one of the qualifications to be expected from a public servant, and, in view of the fact that there are many public offices in which the handling of public money forms but a minor portion of the duties thereof, it would hardly seem to us likely that the intention of our lawmakers would have been to permit all kinds of false utterances against candidates to go unpunished as libelous, save when same related to some question of financial honesty. In our view the Legislature intended to use the word under discussion in a much larger and broader sense. We quote in our original opinion definitions thereof relating to other traits of character and other-seeming qualifications for office than mere financial honesty, and believe that publications relating to candidates which may be shown to be false, and which can fairly be brought within the larger definitions referred to in said- opinion, should be held libelous. It may be true that one who offers for public office should be expected to be maligned and should be willing to be made a target for all sorts of false charges save the single one that he is financially dishonest, and it may be that the intention of the Legislature was to give to the opponents of a candidate for office the privilege of bringing any false charge against such candidate save the single one of financidl dishonesty; but it does not seem so to us. The learned judge who wrote the opinion in the Squires Case did not cite any authorities in support of his position, and we have been unable to find any. The insertion of subdivision 5 in the libel laws of this state seems to be the selection of a particular matter as libelous, which we have been unable to find in other libel laws. The exact question has not been raised in any case since the decision in the Squires Case and this court has not been called upon to express itself either as affirming or opposing the seemingly restricted construction based on the word in that opinion. In our view said case should be overruled in so far asl it expresses a contrary view to that now announced by the court.

Finding no error in the original opinion, and believing the case was correctly decided, the motion for rehearing will be overruled. 
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