
    MARTIN v. STATE.
    (No. 3539.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    Rehearing Denied Oct. 13, 1915.
    Dissenting Opinion, Oct. 14, 1915.)
    1. Cbiminal Daw <&wkey;1092, 1099 — Appeal and Error — Proceedings for Transfer — Limitation of Time.
    Statement of facts and bills of exceptions on an appeal from a conviction of slander, approved and filed about 75 days after the term of .court at which accused was tried had adjourned, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. &wkey;1092, 1099.]
    2. Libel and Slander <&wkey;152 — Criminal Responsibility — Information — Sufficiency.
    An information for slander, based on an imputation of unchastity, which avers that “he, the said J. M., did then and there * * * say of and concerning the said E. S. in substance and effect the following,” and then states what accused said, using the third person “he,” is not defective as merely alleging what accused said or imported, without setting forth the language used, in view of Pen. Code, art. 10, requiring words to be taken, and construed in their ordinary sense, Code Cr. Proc. art. 452, making it unnecessary to plead that which need not be proved, article 453, providing that the certainty required in an indictment is such as will enable the accused to plead the judgment, in bar of any prosecution for the same offense, article 460, providing that an indictment shall be deemed sufficient which charges the offense so a person of common understanding may know what is meant, and article 25, providing that Code provisions shall be liberally construed.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417, 419-424, 426, 427; Dec. Dig. &wkey;>152.]
    Davidson, J., dissenting.
    Appeal from Hamilton County Court; J. L Lewis, Judge.
    Joe Martin was convicted of slander, and he appeals.
    Affirmed.
    Langford & Ohesley, of Hamilton, and Ramsey, Black & Ramsey, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PREND'ERGA’ST, P. J.

Appellant was convicted of slander and assessed the lowest punishment.

The statement of facts and bills of exceptions were approved and filed about 75 days after the term of court at wMch he was tried had adjourned. Hence they cannot be considered.

The only question we can review is the sufficiency of the pleading. The prosecution was had upon a complaint and information, the latter following the former and based thereon.

After the necessary usual allegations in the first and closing parts, the information avers that on July 1, 1914:

“One Joe Martin did then and there orally, falsely and maliciously, and falsely and wantonly, impute to one Elner Stephens, then and there an unmarried female in this state, a want of chastity, in this, to wit: He, the said Joe Martin, did then and there, ini the presence and hearing of G. D. Smith, falsely, maliciously and wantonly say of and concerning the said Elner Stephens, in substance and effect the following: That Elner Stephens was all out of shape and that John Robison had left the country. That old man Stephens had written him, Robison, a note that he, Robison, would have to marry her or take a load of shot. That he, Joe Martin,, had told him, Robison, that there was no use of his going because it could be proved that others had been there besides him, Robison. The said Joe Martin meaning by the expression that ‘Elner Stephens was all out of shape’ that the said El-ner Stephens was pregnant; and meaning by the expression ‘that others had been there’ that other persons had been having carnal intercourse with the said Elner Stephens.”

Appellant made a motion to quash it on several grounds. We will discuss only his first. None of the others present any sufficient cause to quash, or to require any discussion.

His first ground is:

“Because the information does not purport to set out the language claimed to have been used by the defendant, but only purports to set out the substance and effect of same, whereas, under the law the exact language should be set out, the substance thereof proven by the state, and the effect thereof left to the court and jury.”

His able and eminent attorneys in their brief now say:

“We concede as well settled the rule many times declared by this court that in a slander case it is essential that the information or indictment set forth substantially the language which constitutes the imputation of a want of chastity. See Conlee v. State, 14 Tex. App. 222; Frisby v. State, 26 Tex. App. 180 [9 S. W. 463]. We do not contend that it is necessary to set out the language exactly or literally. * * This court has declared in the above-cited cases, as well as in others, that it is necessary only to set out substantially the language relied upon.”

There can be no question but that our law is as stated. So that it is unnecessary to cite the other cases to that effect, or discuss that question at all.

Appellant in his brief further says:

“The question here involved is whether or not this rule (that ‘it is necessary only to set out substantially the language,’ ‘it is not necessary to set out the language exactly or literally’) permits the pleader to state what on the face of the information purports to be merely the substance and effect of what was stated,” his contention being that said conceded rule “does not mean that he (the pleader) may set out merely the meaning or import of the words said.”

His contention might be conceded and yet in no way result in the information being held bad, for it does not aver “merely the meaning or import” of the words said, but instead it avers that “he, the said Joe Martin, did then and there say, in substance and effect, the following,” then gives what he said, using the third person, “he,” and not the first person, “I.” In other words, appellant would have us hold that when it is alleged that appellant said “in substance and effect” the following, then states what he said, is the same as alleging that appellant “meant or imported” the following, then states what he meant or -¡imported merely, and not what he said. This we cannot do. Averring that he “in substance and effect” said or did say, is by no means the same, as by what it is averred he said he “merely meant or imported,” a certain result or effect of his language uttered. In our opinion the averment is radically different from what appellant contends it should be held to be, and to hold as he contends, we think, would do violence to the language used.

As we further understand appellant’s contention, it is, if the pleading had left off the word “effect,” and averred he (Joe Martin) did, etc., say “in substance” the following, then the pleading would have been good. In our opinion, averring he did say “in substance and effect,” ought not, and cannot reasonably, he held to mean that what is then averred he said is “merely the meaning or import” of the language actually used.

Neither the case of Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340, nor Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, mentioned by appellant, have any application to the question herein. Neither of those cases discussed or decided any question of pleading. No such question was raised therein. But in each of them was discussed a variance between the allegation and the proof, and decided only that question.

Our statute (P. O. art. 10) is:

“Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in, which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.”

This but prescribes a rule for the construction of the Oode, which is equally, and practically universally, applicable to “a word, term or phrase” used in a pleading or other writing. Taking into consideration the context and subject-matter of the whole of the pleading herein, we think there can be no question but that the phrase that “said Joe Martin did then and there * * * say of and concerning the said Elner Stephens, in substance and effect the following,” could not otherwise be “understood in common language” than what it is then alleged he said, was substantially what he did say, instead of “merely what he meant or imported.”

Besides, we have other statutory provisions as to what allegations are necessary to constitute a good pleading: “* * * That which is not necessary to prove need not be stated” in a pleading. O. C. P. art. 452. It was unnecessary to allege the language exactly or literally, but sufficient to allege it substantially only. If it had been alleged literally, it would have been sufficient to have proved it substantially only.

Article 453, O. O. P., says:

“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.”

Article 460 is:

“An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.”
“The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: The prevention, suppression and punishment of crime.” Article 25, C. O. P.

Appellant truly says, “it is not necessary to set out the language exactly or literally— it is necessary only to set out substantially the language.” And that, and that only, was what was done in said information. The information was good and valid.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). The charging part of the information is as follows:

“One Joe Martin did then and there orally, falsely and maliciously, and falsely and wantonly impute to one Elner Stephens, then and there an unmarried female in this state, a want of chastity, in this, to wit: He, the said Joe Martin, did then and there, in the presentee and hearing of G. D. Smith, falsely, maliciously and wantonly say of and concerning the said Elner Stephens, in substance and effect the following: That Elner Stephens was all out of shape and that John Robison had left the country. That old man Stephens had written him, Robison, a note that he, Robison, would have to marry her or take a load of shot. That he, Joe Martin, had told him, Robisoni, that there was no use of his going because it could be proved that others had been there besides him, Robison.”

Outside of the innuendo matters, this is the charging part of the information.

The attack is made in various ways upon this information, the substance of which is it does not sufficiently charge a violation of the slander statute. The contention is, in order to charge the offense of oral slander the words used in the imputation of slander must be set out, and, if this cannot he done verbatim or exactly, then the words must be substantially set out. The tendency not only of the decisions, but all of the text-writers, has been to hold and lay down the rule that the language used in imputation of slahder must be set out as used. This rule has been varied slightly to the extent that, where the words cannot be reproduced, they may be substantially stated. This has been the rule in Texas. The authorities are numerous and might here be mentioned, but Mr. Branch has collated the cases in his valuable work on Criminal Law, in section 602, and following sections, except those cases which have been decided since the publication of his work. The case of Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340, might be referred to as one of the leading cases and one of the best-considered cases. It was written by Judge Hurt when he was presiding judge of this court. The Barnett Case was reviewed in rather an exhaustive opinion by Judge Harper in Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, and approved. See, also, Neely v. State, 32 Tex. Cr. R. 371, 23 S. W. 798. Where a rule has been well settled, followed, and acquiesced in by the bench and bar, citation of numerous authorities are not necessary, nor would it be advisable to alter or change those decisions. Now, upon the face of this information it is clear that the language was not set out, nor attempted to be set out either exactly or in substance. The language in charging says “in substance and effect.” The effect of the language is not sufficient. The effect of the imputation is the thing to be decided. It may or may not impute a want of chastity. The imputation must be found in the language itself. Sometimes when the words used are obscure, innuendo or explanatory averments may assist the pleader, but the words must be set out at least substantially, and not the effect of the substance of the words. The information does not sufficiently charge slander, and must be held defective.

The other questions are not discussed.

The judgment ought to be reversed, and the prosecution ordered dismissed. This was written as the original opinion in this case, but the majority, not agreeing to it, took the ease and wrote an affirmance. 
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