
    COPELAND v. STATE.
    (No. 9508.)
    Court of Criminal Appeals of Texas.
    May 5, 1926.
    Rehearing Granted June 1, 1927.
    State’s Rehearing Denied Nov. 30, 1927.
    On Appellant’s Motion for Rehearing.
    1. Criminal law 4&wkey;l09l(ll) — Bill of exception to exclusion of evidence held sufficient, where in narrative form in the main.
    Bill of exception complaining of exclusion of evidence held! not insufficient as in question and answer form, where in narrative form in the main.
    2. Criminal law <&wkey;>l09l (5) — -Bill of exception to exclusion of evidence of truth of alleged slander making it plain that defendant offered to prove and could have proved truth, held sufficient though bill should ordinarily set out evidence.
    Bill of exception complaining of exclusion of evidence as to truth of alleged, slander held sufficient, where making it plain that defendant with witness duly sworn upon the stand offered to prove and could have proved truth of alleged slander, and that court and state regarded such proof inadmissible, although ordinarily a bill of exception complaining of exclusion of evidence should set out evidence at least in substance or in such detail that reviewing court can understand ruling and merits of complaint.
    3. Libel and slander <&wkey;> 155 — Where instructions treated prosecution as one for libelous imputation of criminal offense, exclusion of evidence of truth of libel held error (Pen. Code 1925, arts. 1269, 1290, and art. 1275, subdis. I, 2).
    Where court’s instructions to jury treated prosecution as one for libel by reason of imputation of commission of criminal offense of adultery under Pen. Code 1925, arts. 1269, 1275, subds. 1, 2, it was error to refuse to receive evidence of truth of alleged libel under article 1290.
    On State’s Motion for Rehearing.
    4. Libel and slander <&wkey;>l41 — “Slander” may be committed by written imputation of unchas-tity in woman (Pen. Code 1925, arts. 1269, 1275, 1293, 1294).
    Offense of “slander” may be committed by means of written imputation of lack of chastity in woman under Pen. Code 1925, arts. 1293, 1294, providing that if any person shall, “orally or otherwise,” falsely and maliciously or falsely and wantonly, impute to any female, married or unmarried, a want of chastity, he shall be deemed guilty of slander, in view of definition of slander as general and original word for all kinds of defamation and as originally applied to both oral and written defamations of character, and articles 1269, 1275, denouncing libel.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Slander.]
    5. Libel and slander <&wkey;l42 — Statutes denouncing as slander imputations of unchastity in woman held controlling over general libel law (Pen. Code 1925, arts. 1269, 1275, 1293, 1294).
    Pen. Code 1925, arts. 1293, 1294, providing that if any person shall, orally or otherwise, falsely and maliciously or falsely and wantonly, impute to any female, married or unmarried, a want of chastity, he shall be deemed guilty of slander, 'held controlling, in view of article 5, over existing articles 1269, 1275, denouncing generally as libel certain written, printed or published statements.
    6. Libel and slander <&wkey;l52(l) — Indictment for libel imputing “adultery” should have averred statutory elements of crime (Pen. Code 1925, arts. 499, 1269).
    Indictment for libel containing imputation of adultery, brought under Pen. Code 1925, art. 1269, should have contained such aver-ments as would properly charge adultery within article 499, since “adultery” is not necessarily the penal offense, but is also defined as unfaithfulness of married person to marriage bed, and lewdness or unehastity of thought as well as act forbidden by Seventh Commandment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Adultery.]
    
      7. Criminal law &wkey;76l (6) — Instructions in prosecution for libel assuming that adultery was penal offense held error (Pen. Cod'e 1925, arts. 499, 1269).
    Instructions in prosecution for libel containing imputation of adultery brought under Pen. Code, art. 1269, which assumed that adultery was penal offense, held error, especially where neither indictment nor alleged libel stated elements of adultery within meaning of article 499.
    Appeal from McLennan County Court; James R. Jenkins, Judge.
    A. Reilly Copeland was convicted of libel, and he appeals.
    Reversed and remanded.
    Nat Harris and W. L. Eason, both of Waco, for appellant.
    C. S. Farmer, Co. Atty., and W. J. Holt, Asst. Co. Atty., both of Waco, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BARER, J.

The appellant was convicted in the county court of McLennan county for the offense of libel, and his punishment assessed at a fine of $1,000.

The indictment is based upon article 1269, 1925 Penal Code (article 1151 of the old Code), and charges that the appellant—

“did then and there, with intent to injure Miss Adelaide Hague, unlawfully and maliciously make, write, print, publish, and circulate a malicious statement of and concerning the said Miss Adelaide Hague and affecting the reputation of the said Miss Adelaide Hague, to the tenor following: * * * ‘Is it true that a certain Waco lady (meaning Mrs. J. H. Hutch-erson) called in a former chief of police (meaning former Chief of Police Guy McNamara), who took the city nurse (meaning Miss Adelaide Hague) from your department (meaning the city health department of the city of Waco) and put her (Miss Adelaide Hague) un'der his (meaning the said Guy McNamara) probation due to adultery between you (meaning Jim Tins-ley) and her (meaning Miss Adelaide Hague) ? Is this woman (meaning Miss Adelaide Hague) still in your (meaning Jim Tinsley’s) department? Do you (meaning Jim Tinsley) mean to announce for office iri February? I’ll (meaning A. Reilly Copeland) make no public statement unless you (meaning Jim Tinsley) ignore this letter altogether or' explain in person the matters involved, which are of common report. Sincerely, A. Reilly Copeland.’
“And by the expression, ‘Is it true that a certain Waco lady called in a former chief of police, who took the city nurse from your department and put her under his probation due to adultery between you and her’ the said A. Reilly Copeland meant that the said Miss Adelaide Hague had committed adultery with Jim Tinsley.”

The appellant presented a motion to abate the indictment herein, alleging that he was a minister of the gospel and interested in the public welfare, and that the district judge who presided at the time when the indictment was returned by the grand jury, the corporation judge of the city of Waco, one J. W. Tinsley, and the city commissioners belonged to what is known as the Ku Klux Klan, and, together with other members of said Klan, had conspired to indict the appellant for the purpose of destroying 'his usefulness as a citizen and as a pastor. Complaint is also made, by the motion to abate, to the formation of the jury commission- which selected the grand jury, and to the charge of the district judge to the grand jury, and to other matters pertaining thereto, which, appellant contends, render the indictment invalid. After a careful examination of the motion, we are of the opinion that, as presented, no error is shown in the ruling of the court thereon.

Bills of exception Nos. 11 to 17, inclusive, complain of the action of the court in refusing to quash the indictment. These bills, as presented, show no error in the ruling of the court thereon. Bill No. 18 complains of the action of the court in overruling appellant’s motion to quash, the contention being that the indictment should have been drawn under chapter 2, art. 1293, 1925 Penal Code (article 1180 of the old Code), relative to slander, instead of article 1269, supra, on libel. There is no merit in this contention.

Bill No. 19 complains of the action of the court in discharging from service on the jury one W. M. Jackson, a negro. The trial court refused the bill as presented by appellant, and the bill, as prepared by the court on this point, shows no injury to the appellant by reason of the ruling of the court thereon.

There are several bills of exception in the record complaining, in various forms and ways, of the court’s charge to the jury, but the record fails to show any special charges presented by appellant covering the objections raised to the court’s charge. This being a misdemeanor, it devolves upon appellant to prepare a proper special charge covering the matters complained of and present same to the trial court at the proper time before this court, under the law, would be authorized to consider said objections.

Bill No. 24 complains of the charge given by the court on the penalty for libel, and insists that the court should have charged the jury, in lieu thereof, the law as to the penalty for slander. What we have said relative to bill No. 18 is applicable to this bill.

Bills 34, 35, 36, 37, and 38 are in question and answer form and also contain statements and argument between counsel and tbe trial court. For tbis reason, attorneys for tbe state object to tbe consideration of these bills by tbe court, wbicb contention is well taken, and under tbe law we are precluded from considering same by reason of tbe form in wbicb tbey are presented. Broussard v. State, 99 Tex. Cr. R. 589, 271 S. W. 385; Robbins v. State, 100 Tex. C. R. 592, 272 S. W. 175; Panyon v. State, 101 Tex. Cr. R. 527, 275 S. W. 1076, and other authorities too numerous to mention.

There are six or eight bills of exception to tbe argument of tbe county attorney. We. have examined these bills and deem it unnecessary to go into a detailed discussion thereof. Suffice to say that these bills, as .presented, are not such, in our opinion, as would require a reversal of tbe ease.

After a careful examination of tbe entire record, we are unable to reach tbe conclusion that tbe record, as presented, shows any reversible error, and tbe judgment of the trial court is therefore affirmed.

PER CURIAM. Tbe foregoing opinion by tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court..

On Appellant’s Motion for Rehearing.

MORROW, P. J.

In bis motion for rehearing appellant reiterates tbe various contentions made on tbe original bearing. In nearly 50 bills of exceptions and a record containing many pages of typewritten matter tbe case is presented in a manner prolix to a degree that precludes tbe propriety and expediency of discussing in detail all tbe points made.

Tbe offense of libel has been defined and denounced by statute from tbe beginning of our judicial history. See Paschal’s Digest of tbe Laws of Texas, vol. 1, p. 455, art. 2276. In article 2283 it is said: “But no verbal defamation comes within tbe meaning” of tbe act. Tbe statute on criminal libel has undergone modification, and tbe present is embraced in title 16, c. 1, P. C. 1925. The phases of tbe statute wbicb seem applicable to tbe present inquiry are subdivisions 1 and 2 of article 1275, which read as follows:

“The written, printed or published statement, to come within the definition of libel, must convey the idea either:
“1. That the person to whom it refers has been guilty of some penal offense; or,
“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.”

And section 2, art. 1299, P. C. 1925, from which we quote:

“In the following cases the truth of any statement charged as libel may be shown: in justification of the defendant; * * *
“2. Where it is stated in the libel that a person has been guilty of some penal offense, and the time, place and nature of the offense is specified in the publication.”

In 1879 tbe offense of slander was first defined in tbe statute. See Pen. Code 1879, art. 645; Posey’s Texas Criminal Digest of Laws, §§ 9914 and 9915. And that offense is embraced in articles 1293 and 1294, P. C. 1925, wbicb read thus:

“If any person shall, orally or otherwise, falsely and maliciously, or falsely and wantonly, impute to any female in this state, married or unmarried, a want of chastity, he shall be deemed guilty of slander and shall be fined not less than one hundred nor more than one thousand dollars, and may be in addition thereto imprisoned in jail not exceeding one year.”
“It shall not be necessary for the state to show that such imputation was 'false, but the defendant may in justification show the truth of the imputation, and the general reputation for chastity of the female alleged 'to have been slandered may be inquired into.”

Tbe offense of slander has found its way into tbe criminal law in many of tbe states, including ours. 17 Ruling Case Law, p. 461, § 223.

Tbe averments in tbe indictment are set out in tbe original opinion, and by innuendo tbe charge is “that tbe said A. Reilly Copeland meant that tbe said Miss Adelaide Hague bad committed adultery with Jim Tinsley.” Tlje alleged defamatory matter is in writing.

Appellant advances tbe contention that slander, as defined in our statute, may be committed by either oral or written declarations imputing to a female a want of chastity, and that tbe language used, namely, “If any person, shall orally or otherwise,” etc., apparently supports the view mentioned. In Lindsey’s Case, 18 Tex. App. 280, the prosecution was founded upon an affidavit. Tbe opinion apparently gives sanction to tbe, position that the offense could be committed by tbe use of defamatory language in writing. The case was reversed, however, because the particular writing was privileged. Tbe criminal forms prepared by Judge Will-son, who was long a distinguished member of this court, specifically recognize the efficacy of tbe statute as supporting a prosecution for slander based upon defamatory language embraced in a written document. See Willson’s Criminal Forms, No. 526 (4th Ed.) annotated by J. W. Moffett in 1912.

In Lagrone’s Case, 12 Tex. App. 426, discussing an indictment for slander, tbe following language was used:

“The offense created by article 645 of the Penal Code [1879] 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. Proc. 939; Id. 963. The state of Alabama has a statute creating the offense of defamation, which is similar to our statute of slander. Code Ala. [1876], art. 4107. 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 article 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.”

Adverting to the principles of law and statutory enactments which control in- determining which of two criminal statutes which apparently denounce the same act, it is the rule that preference is to be given to that statute which points out a particular act and denounces it as a crime over that the language of which would embrace the same act in general terms.

In article 5, P. C. 1925, it is declared:

“Each general provision shall be controlled by a special provision on the same subject, if there be a conflict.”

It is plausible that in enacting article 1293, P. C. 1925, establishing the offense of slander and defining that offense as falsely and maliciously imputing, by oral declaration or otherwise, a want of chastity to a female, the effect of the legislation was to bring it within the purview of the statute last quoted, so that a prosecution for such imputation would fall under the provisions of articles 1293 and 1294, supra, defining slander, and not under article 1275, defining libel.- Another construction would have the effect to vest in the prosecuting officers power by charging one whose offense was slander, with libel, thereby arbitrarily destroying the purpose of the lawmakers to permit the accused to defeat the prosecution by proof of the truth of the alleged slanderous language. There is a substantial difference in the two offenses, not only in the elemental facts and in the defenses named in the statute, but in the penalty also. The penalty for libel is a fine or imprisonment, while that prescribed for slander is a fine and imprisonment. If the appellant’s contention that the prosecution in the present instance is controlled by articles 1293 and 1294 rather than by the libel law embraced in title 16, c. 1, Pen. Code 1925, then the court was in error in instructing the jury touching the penalty to- be assessed in the event of a conviction. The instruction authorized the jury to fix a penalty of not less than $100 nor more than $2,000, or by imprisonment in the county jail not exceeding two years, which materially differs, as above stated, from the penalty which the law authorizes for the offense of slander. Exceptions were duly reserved to the action of the couft with reference to the instruction touching the penalty.

The charge of the court appears to be framed upon the theory .that the alleged libelous matter charged against the alleged injured party a penal offense. In submitting the case to the jury, the court told them, after some preliminary statements, that if the letter in question, in its natural consequences, affected the reputation of the party named by conveying the idea that she was guilty of the penal offense of adultery, a conviction should result. He also said: “You are .further charged that adultery is a penal offense against the laws of the state.” These charges were made the subject of exception and are criticized on many grounds upon this appeal, notably upon th'e ground that in the averments of the indictment and in the letter itself there are lacking the elements of the penal offense of adultery, in many particulars, among others, the absence of averment that one of the parties were married. The indictment is deemed sufficient in its averments to impute to the woman mentioned a want of chastity. It does not, of course, embrace the elements of the statutory offense of adultery. The instruction was error.

Appellant complains of the refusal of the court to hear evidence touching the truth of the matters embraced in the language used and as charged in the indictment. Upon the original hearing, we were impressed with the view that the bill of exceptions upon this subject was so informal as to preclude its consideration. Upon a more mature reflection, however, we are of the opinion that, while it is informal in some respects, it is such as to demand consideration. From the bill it appears that the witness, Guy McNamara, while upon the stand in behalf of the appellant, was asked if while chief of police of the city of Waco he was called to the home of Mrs. Hutcherson, and upon his giving an affirmative reply, he was asked to tell the jury just who that call came from and to relate the entire, transaction in his own way. Objection was addressed to this question, and .the court retired the jury and heard argument upon the matter. After hearing the argument, the court announced that he would not admit the testimony. Appellant at the time made known to the court that the proffered testimony was to prove the truth of the matters contained in the alleged libelous statement, and reserved an exception to the court’s ruling. The court approved the bill .without qualification. In the main, the bill is in narrative form and makes it perfectly plain that the appellant, with the witness duly sworn upon the stand, offered to prove and could have proved the truth of the statements in the alleged slanderous matter, and the fact that the court and counsel for the state regarded the law as inhibiting such proof. Ordinarily, a bill of exceptions complaining of the exclusion of evidence should set out the evidence, at least in substance or in sufficient detail to enable the reviewing court to understand the ruling and to appraise the merits of the complaint. The court in the present instance was specifically informed that the testimony of the witness would be to the effect that the things stated in the writing were true; that is, that it was the truth that the persons mentioned in the indictment had engaged in illicit relations. Construed in the light of the averments in the indictment, the conclusion is unescapable that the appellant’s claim to be able to prove the truth of the alleged slanderous matter demanded the privilege to do so given him under the statute above mentioned.

Inasmuch as the court, in his instructions to the jury, treated the prosecution as coming within the purview of that part of article 1275 which declares as libelous a statement conveying the idea that the accused was guilty of a penal offense, he should have given-the appellant the benefit of the provisions of article 1290, supra, which declares that where it is stated in the libel that a person has been guilty of some penal offense, and the time, place, and nature of the offense is specified, the truth of the matter contained in the alleged libelous statement may be shown in justification of the accused.

The opinion is expressed that the offense charged is “slander,” and appellant should have been tried in accord with the statute upon that subject as declared in articles 1293 and 1294, which are quoted above. However, if the prosecution may be maintained under article 1275, supra, denouncing the offense of libel, the conduct of the trial, in which the jury was informed that the indictment charged a penal offense, renders it improper for the court to refuse to receive evidence of the truth of the alleged libelous statement.

For the reasons pointed out, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.

On State’s Motion for Rehearing.

MARTIN, J.

It is vigorously insisted by the state on motion for rehearing that the offense of slander cannot be committed by the use of defamatory language in writing. “Slander is the general and original word for all hinds of defamation and at an early day in the history of the common law the term applied to both oral and written defamations of character.” 36 C. J. 1145. jUntil the enactment of our present slander statute, the act therein defined as a crime was not punishable unless it fell within the terms of the then existing libel law. Plainly the class intended to be protected by this statute was the female sex, and the evil sought to be remedied was the lack of such protection under the then existing laws. Having undertaken this task, the Legislature used language which we think *is broad enough to include any act which “orally or otherwise” falsely and maliciously, or falsely and wantonly, imputes to' any female a want of chastity. See article 1293, P. C. 1925. This was legislation designed to protect a special class, and the above construction gives full protection to such class, whereas the construction insisted on by the state falls short of full protection and leaves wholly unexplained the meaning of the broad language, “orally or otherwise,” used in article 1293, P. C. 1925, defining slander. Besides, there would not seem to be anything unusual in the Legislature making the term slander at least as broad as its original common-law meaning in its application to the class mentioned.

We further believe that because the slander statute is a special provision, dealing particularly and specifically with acts applying only to one class, it will control the general libel law in effect at the time of its passage in so far as the act made penal in article 1293 defining slander may be included within the general terms of the libel law. The Legislature carved specially from an existing general statute and must have therefore intended that its special provisions should control such general provisions embodied in title 16, c. 1, P. C. 1925, dealing with libel. Article 5, P. C. 1925; 36 Cyc. 1151; State v. Valentine (Tex. Civ. App.) 198 S. W. 1009; Bank v. Lee (Tex. Civ. App.) 250 S. W. 315. It therefore follows necessarily that appellant’s alleged criminal act would constitute the offense of slander and not libel, as held by this court in its opinion by Presiding Judge MORROW on motion for rehearing.

Neither of the above questions were expressly decided in the case of Mankins v. State, 41 Tex. Cr. R. 662, 57 S. W. 950, and it is at best only an authority by inference. Other cases cited by state’s counsel are either civil cases of libel and slander or cases outside the state under penal statutes, none of which throw any light on the question in the instant case.

It is insisted that it was neither necessary to allege in the indictment nor give in charge the statutory elements of adultery, and that it was correct for the court to ihstruct that “adultery is a penal offense.” “The living together and carnal intercourse with each other, or habitual carnal intercourse with each, other without living together, of a mau and woman when either is lawfully married to some other person,” is a penal offense. Article 499, P. C. 1925. But this statutory definition is not its only meaning. In fact, it could hardly he said to be its commonly accepted meaning. Adultery is defined in Webster’s International Dictionary as: “The unfaithfulness of a married person to the marriage bed.” “Lewdness or unehastity of thought as well as an act forbidden by the 'Seventh Commandment.”

Whatever may be the general rule, these various meanings of the word adultery, we think, made necessary in the instant case such averments in the indictment as would properly charge statutory adultery. For the same reason the court in his charge cannot assume that “adultery is a penal offense,” especially so when, as in this case, neither the allegations of the indictment nor the language of the .alleged libelous statement contain the elements of statutory adultery, and the jurors are left by the court’s charge to interpret its meaning as they see fit.

Believing that all- questions discussed in the opinion on motion for rehearing were properly disposed of, the state’s motion for rehearing is overruled.

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. 
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