
    ETHRIDGE v. STATE.
    (No. 3232.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§ 721) — Trial — Argument oi? Counsel.
    In a prosecution for slander, where accused did not take the stand in his own behalf, argument of counsel referring to accused’s failure to place on the stand his particular friend, who was present when the alleged slander was uttered and was also present at trial, is not objectionable as a reference to accused’s failure to testify himself, though it was stated in the last of the argument that it was not denied accused uttered the slander.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    2. Libel and Slandeb (§ 169) — Criminal Prosecution — Evidence—“Slander.”
    In a prosecution for a violation of Pen. Code 1911, art. 1180, declaring that if any person shall falsely and maliciously or fálsely and wantonly impute unchastity to any female, he shall be guilty of slander, where the complaint and information wére in the words of the statute, the refusal of a requested special charge that, unless accused made the statements alleged wantonly and falsely, he should be acquitted is properly refused; for he was guilty if he falsely and maliciously made them.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 444; Dec. Dig. § 159. For other definitions, see Words and Phrases, First and Second Series, Slander.]
    3. Criminal Law (§ 1099) — Appeai^Statement oe Facts.
    Where the attorneys failed to agree upon a statement of facts, and the county judge, in preparing the statements, made a complete statement of the facts in evidence on the main trial and then made a separate statement of the facts of the evidence hoard on the motion for new trial, which was placed after the principal statement, there was no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.]
    4. Criminal Law (§ 1144) — Appeal — Presumptions.
    Unless the statement of facts contains the evidence presented by accused in support of his motion for new trial, it will on appeal be presumed that the lower court correctly ruled in denying the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    5. Criminal Law (§ 1099) — Appeal—Statement oe Facts — Time oe Filing.
    Statements of facts showing the evidence heard on motions for new trial will not be considered on appeal unless filed within term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from Taylor County Court; E. M. Oversbiner, Judge.
    Henry Ethridge was convicted of slander, and he appeals
    Affirmed.
    Ben L. Cox, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant appeals from a conviction of slander. We have carefully read and considered the 'statement of facts and record in this ease more than once. The evidence amply sustains the verdict

Appellant contends, and presents the question in various ways, that the evidence did not establish that the slanderous language used by him was with reference to the young girl it was alleged it was 'used about. It is unnecessary to detail the evidence. No useful purpose could be subserved by doing so. There can be no question from the evidence but that the language used was about the young girl and no other. The court’s charge required the jury to so believe before they could convict.

The uncontradicted evidence shows that the slanderous language was used by appellant in the presence and hearing of six persons. The state introduced three of these, who testified positively to its use. Appellant introduced another one of these witnesses, who testified about other matters, but appellant did not have him testify on this subject. The other two of these witnesses were not introduced by either side. The record clearly indicates that these witnesses, or John Reed, one of them, especially, was friendly and favorable to appellant, and present at the trial. By one.of his bills of exceptions he complains that the attorney specially employed in behalf of the state used this language in his argument to the jury:

“John Reed was present down there on the road that night where the defendant uttered these false and malicious words against this young lády. John Reed is here in attendance upon this court, and the defendant hasl not seen fit to put John Reed on the witness stand to deny that he made the statement, and it has not been denied that the defendant said it.”

Appellant claims that this statement was an allusion to the fact that the appellant himself did not testify, and claims that it is reversible error. He asked no written charge of the court that the jury should disregard it. In our opinion, it is not a reference to the appellant’s failure to testify, and it does not present error. Link v. State, 164 S. W. 995, and cases therein cited; Gatlin v. State, 163 S. W. 428, and cases therein cited. It is needless to collate and cite the many cases to the same effect.

Tlie complaint and information aver that appellant did “falsely and maliciously and falsely and wantonly impute,” etc., a want of chastity to the young girl, naming her, in the presence and hearing of certain persons, naming them, and averring the language used. This followed the language of the statute. P. C. art. 1180. The evidence clearly raised and would sustain a verdict more especially that appellant used said language falsely and maliciously as well as falsely and wantonly. Appellant requested only one charge, which is to this effect:

Before you can convict the defendant you must find beyond a .reasonable doubt that he made the statements alleged in the complaint, and that they referred to said girl, and that they were falsely and wantonly made, and, unless you so find, you will acquit him.

It will he seen by this that this special charge would have submitted only that said statements were falsely and wantonly made and to acquit him if they were not, leaving out entirely the other elément that they were falsely and maliciously made. The court did not err in refusing to give this special charge. It has always been held by this court that, if the special charge requested in a misdemeanor case is not correct as applicable to the case, the court must refuse it. This charge would have erroneously told the jury to acquit appellant, unless he falsely and wantonly made the statements, when, as a matter of fact, he was guilty if he falsely and maliciously made them. Lawrence v. State, 20 Tex. App. 536; Sparks v. State, 23 Tex. App. 448, 5 S. W. 135; Hobbs v. State, 7 Tex. App. 118; Perkins v. State, 144 S. W. 245; Mealer v. State, 145 S. W. 354. It is unnecessary to cite the many other cases so holding.

By appellant’s only other bill he complains that the court committed reversible error by making up in the statement of facts on the main trial also a statement of facts of the evidence introduced on the hearing of the motion for new trial. The attorneys failed to agree upon a statement of facts. The duty therefore devolved upon the county judge. He made and certified to a complete statement of facts of the evidence on the main trial. Following that, but entirely separate and distinct, he also made a statement of facts of the evidence heard on the motion’ for new trial and certified to that; the certificate to each being entirely separate'and distinct. This, of course, presents no error.

The only other question necessary to be considered is appellant’s complaint that the court should have granted his motion for new trial, because of newly discovered evidence. He attached the affidavits of certain persons of what he claims to be newly discovered evidence which he claims they would testify. The state contested this motion. The record, without question, shows, which was proper, that the court, in considering that motion, heard evidence thereon. What that evidence was is not shown by any bill of exceptions filed within term time, nor’ by any statement of facts filed within term time. There is, as stated above, a statement of facts made by the judge of the testimony he heard on said motion, but it was no't filed until some time after the court had adjourned. After hearing the evidence the court overruled the motion, and we must conclude that the evidence he heard clearly justified him in so acting. That we cannot consider that purported statement of facts has been too long and well established to require discussion. In Graham v. State, 163 S. W. 730, we cited some of the cases, holding:

“Statements of facts, showing the evidence heard on motions for new trial, under the uniform and an unbroken line of decisions, in order to be considered by this court, must be filed within term time, and, unless so filed, it cannot be considered. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State [64 Tex. Cr. R. 541], 144 S. W. 977; Bailey v. State, 144 S. W. 1005. See, also, Jordan v. State, 10 Tex. 502; Sharp v. State, 6 Tex. App. 658.”

The record in this case shows no reversible error, and the judgment is affirmed.  