
    KELLY v. STATE.
    (No. 4461.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Indictment and Information <@=>122(4)— Variance Between Complaint and Information.
    In a prosecution for slander, a variance between the date of the offense as alleged in the complaint and that charged in the information, the information only stating the year, without month or day, was fatal to the information.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 324.}
    2. Libel and Slander <@=>152(1) — Information— Sufficiency— Statute.
    Under Yernon’s Ann. Code Cr. Proe. 1916, art. 456, providing that, in alleging the name of defendant or person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname, in a prosecution for slander, an information which failed to give either the Christian name or initials of the injured party, or, if they were unknown, to state that fact, was defective.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417, 420, 423.]
    3. Indictment and Information «^Misinformation — Cure of Defects — Amendment.
    In a prosecution for slander, where the information was defective for variance between the date of the offense alleged and that charged in the complaint, and in failing to state the given name or initials of the injured party, such defects were substantial, and could not be cured by amendment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 518.]
    4. Indictment and Information <®=s>123 — Defective Information — Complaint.
    In a prosecution for slander, allegations in the complaint would not aid the information, defective in substance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 326.}
    5. Libel and Slander <©=>159 — Criminal Prosecution — Instruction—Statute.
    In View of Yernon’s Ann. Pen. Code 1916, art. 1180, providing that if any person shall, orally or otherwise, falseft' 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, in a prosecution for slander, a special charge, requesting the court to define “wantonly” and “willfully,” should have been given.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 444.]
    6. Criminal Law <@=>829(1) — Instructions— Requests for More Specific Charge — Refusal.
    In a prosecution for slander, a requested special charge, calling the jury’s attention particularly to the words used in the information which are alleged to have imputed a want of chastity to the injured party, and advising the jury that the interpretation and meaning of these words is for them, should have been given, although the main charge in a general way submitted the meaning of the language used to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011.]
    7. Libel and Slander <@=>154 — Criminal Prosecution — Evidence—Burden of Proof.
    ■ In a prosecution for slander, by imputing a want of chastity to the injured party by the use of the word “whore,” the burden was on the state to prove the innuendo.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 428, 429.]
    8. Libel and Slander <©=>156 — Criminal Prosecution — Evidence—Burden of Proof.
    In a prosecution for slander; the burden was on the state to prove defendant’s guilt beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437-441.]
    9. Libel and Slander <©=>155 — Criminal Prosecution — Evidence—Admissibility.
    In a prosecution for slander, by imputing a want of chastity to “Mrs. W-T-by the use of the words: ‘Will Tingle burned our barn, and his damned whore helped him plan it. Will’s wife is no account’ ” — in which W. T. was not a witness, evidence tending to connect W. T. with burning defendant’s barn was not relevant.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436.]
    
      Appeal from Hunt County Court; A. X Gates, Judge.
    Earnest Kelly was convicted of slander, and he appeals.
    Reversed and remanded.
    Clark & Reddy, of Greenville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by complaint and information with the offense of slander. A jury trial resulted in conviction, and the assessment of his punishment at a fine of $100 and 30 days’ imprisonment in the county jail.

The complaint charged the offense to have taken place on or about the 1st day of December, 1916, and that a want of chastity was imputed to Mrs. Will Tingle by the use of the following language:

“Will Tingle burned our barn, and bis damned whore helped him plan it. Will’s wife is no account.”

The information alleged the offense to have been committed on-day of-, 1916, and charged the imputation and want of chastity to “Mrs. -Tingle.” We quote from the information as follows:

“Did then and there, in the presence and hearing of John Davis, falsely, maliciously, and wantonly say of and concerning the said Mrs.Tingle: ‘Will Tingle burned our barn, and his damned whore helped him plan it. Will’s wife i® no account’—meaning thereby that said Mrs. -- Tingle was unchaste, and was a whore.”

Motion to quash the complaint and information on various grounds was overruled. It will be noted that there is a variance between the date of the offense as alleged in the complaint and that charged in the information. This, we think, was fatal to the information. Lackey v. State, 53 Tex. Cr. R. 459, 110 S. W. 903, and cases there refen-red to.

The information failed to state the given name or initials of Mrs. Tingle. If the initials or Christian name of Mrs. Tingle were known, it was necessary to give them in the information. If they were unknown, it was necessary to state that fact. Article 456, Vernon’s C. C. P. Construing this statute, it has been held that, where a married woman is the injured party, she should be described by her Christian name or her initials set out. Bell v. State, 25 Tex. 574; Beaumont v. Dallas, 34 Tex. Cr. R. 68, 29 S. W. 157. Other eases in point are Ranch v. State, 5 Tex. App. 363. See Vernon’s C. C. P. p. 204.

An effort was made to amend the information, but the defects were substantial, and could not be cured by amendment. Huff v. State, 23 Tex. App. 291, 4 S. W. 890; Taylor v. State, 50 S. W. 1015, and cases there cited. Nor would the allegations in the complaint aid the information, defective in substance. Branch’s Ann. Penal Code, vol. 1, p. 251; Lawson v. State, 13 Tex. App. 83; Pittman v. State, 14 Tex. App. 576; Smith v. State, 25 Tex. App. 454, 8 S. W. 645.

There were exceptions to the charge urged, some of which present valid objections; but, as they will not likely occur on another trial, they will not be discussed in detail. The special charge, requesting the court to define “wantonly” and “willfully,” should have been given the jury. Rainwater v. State, 46 Tex. Cr. R. 496, 81 S. W. 38; Vernon’s Penal Code, art. 1180, and annotations, page 733. Also a special charge calling the jury’s attention particularly to the words used in the information which are alleged to have imputed a want of chastity, and advising the jury that an interpretation and meaning of these words is for them. The court in its main charge in a general way submitted the meaning of the language used to the jury, but the request for a more specific charge on this subject should have been granted.

It was necessary to prove the innuendo, and to so frame the charge that the jury would understand that the burden was. upon the state to prove the alleged meaning of the words. Vernon’s Penal Code, page 731, and cases cited; also page 733.

A paragraph of the court’s charge submitting the issue to the jury is as follows:

“If you believe from the evidence that Earnest Kelly, in Hunt county, Texas, on or about the 1st day of December, 1916, did orally, falsely, maliciously, and wantonly impute a want of chastity to Mrs. Will Tingle, you will find the defendant guilty; and if yoii do not so believe from the evidence, you will return a verdict ’of not guilty.”

This is criticized as susceptible of the construction that it required the appellant to prove his innocence. On another trial the court will doubtless frame his charge so as to avoid this criticism, and to clearly place upon the state the burden of proof throughout the case to prove the appellant’s guilt beyond a reasonable doubt. Bennett v. State, 30 Tex. App. 341, 17 S. W. 545; Branch’s Crim. Law, § 718.

In some of appellant’s bills complaint is made of the rejection by the court of proffered testimony of a witness who claimed to have followed certain tracks in the direction of appellant’s bárn, which was burned, and other circumstances tending to connect Will Tingle with burning appellant’s barn. As disclosed by the record, we do not regard this evidence as relevant. Will Tingle was not a witness in the case.

Because of the defects in the information, the judgment of the lower court is reversed, and the cause remanded. 
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     