
    CURL v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1912.
    1. Libel and Slander (§ 152) — Criminal Slander — Sufficiency of Indictment.
    An indictment alleged that accused, on a date named, orally, falsely, and maliciously imputed to a female, to wit, P., a want of chastity, to wit, that accused, in the hearing of W. and others, falsely, maliciously, and wantonly said of and concerning P. that she was not a good woman, and 'that she showed herself in front of the drug store before men, meaning thereby and intending to convey the impression that said P. had demeaned herself in a lewd manner in front of the store and before men; that accused, in the hearing of W. and others, falsely, etc., said that three men named were paying attentions to her, the said P., meaning and intending to imply thereby that P. had theretofore had carnal intercourse with the said men, and that accused further said, in the presence and hearing of the said W. and others, that P. had gone to a party, and that a certain man stayed at the telephone office, which was in the same building as P.’s sleeping apartments, and that P. did not return to her home in the building till 2 o’clock a. m., and that such man did not get home until morning, meaning and intending to convey the impression that upon P.’s return-at 2 o’clock she permitted the man to remain with her until morning, and while there had intercourse with her. Held, that the indictment was sufficient, under Pen. Code 1911, art. 1180, making one guilty of slander who falsely and maliciously imputes a want of chastity to any female.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417-427; Dec. Dig. § 152.]
    2. Libel and Slander (§ 152)— Criminal Slander — Innuendoes—Propriety.
    The slanderous words being susceptible of the meaning alleged by the innuendoes, the in-nuendoes were proper; the meaning of the language not being obvious without them.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417-427; Dec. Dig. § 152.]
    3. Indictment and Information (§ 125)— Criminal Responsibility — Indictment — Duplicitous Allegations.
    The indictment was not duplicitous in not showing that the persons who were alleged to have heard the conversations were the same persons; all of the language being charged as being used at the same timé, and in the hearing of W. and the same other persons.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125; Assault and Battery, Cent. Dig. § 114.]
    4. Criminal Daw (§ 1064) — Appeai>-Pbes-entation Below — Motion for New Trial —Sufficiency—Refusal of Charges.
    A motion for a new trial alleged error in refusing accused’s special charge No. 1, “which is a peremptory instruction of the defendant, instructing them to find a verdict for said defendant,” and in refusing special charge No. 2, “to the effect that the innuendoes set out in the indictment form no part of the same,” and alleged error in the same general manner in refusing other charges named. Meld, that the motion was not sufficiently specific to require the appellate court to review error in refusing the charges, even had the case been a felony case.
    [Ed. Note. — Eor other cases, see Criminal Daw, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    5. Criminal Daw (§ 1091) — Appeai>-Pres-entation Below —Bill of Exceptions — Sufficiency.
    The bill of exceptions to the refusal of Charges merely recited that “defendant offered to the court special charges Nos. 1, 2, 3, * * * and 9, and asked that the same be allowed and read to the jury, but the court refused the same, to which action * * * defendant then and there excepted” and now tenders her bill of exceptions. Meld, that the bill did not show sufficiently definite requests to authorize the appellate court to review error in refusing them.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    6. Criminal Daw (§ 371) — Criminal Slander-Admission of Evidence — Slanderous Intent.
    In a prosecution for criminal slander by charging a female with unehastity and lascivious conduct in the hearing of a certain person, evidence that accused used substantially the same language concerning the female’s conduct in a conversation with another than charged in the indictment, and reflected on prosecuting witness’ chastity to others, was admissible to show accused’s intent when she uttered the slanderous words charged in the indictment.
    [Ed. Note. — Eor other cases, see Criminal Daw, Cent. Dig. §§ 830-832; Dec. Dig. § 371.]
    7. Criminal Daw (§ 1166%) — Appeal — Harmless Error — Reading Instructions— Presence of Accused.
    After the court’s charge in criminal slander was prepared in the judge’s chamber and read over to accused’s attorney, accused’s husband, who was also an attorney, stated to the judge and to accused’s attorney and the state’s attorney that accused was not feeling well and would not return to court and hear the charge read, unless she had to, when the state’s attorney said it was entirely with the accused’s husband and her whether she returned. An hour or so afterward the judge, believing all parties were present, began reading the charge to the jury, and had only read the first part of the charge and the plea of not guilty, when accused and her attorney came into the courtroom. Accused and her attorney were in front of the .courthouse when the judge ’and the crowd went upstairs to reconvene court and read the charge, and his áttention was not called to accused’s absence until the motion for new trial. Meld, that any irregularity in reading a part in accused’s absence was not reversible.
    [Ed. Note. — Eor other cases, see Criminal Daw, Cent. Dig. §§ 3114-3125; Dec. Dig. § T166%.]
    8. Dibel and Slander (§■ 160) — Verdict-Sufficiency.
    A verdict in criminal slander, “We, the jury, find the defendant, C., guilty according to the law and evidence of the case, and affix the fine to the lowest limit, which is 8100,” is sufficient.
    [Ed. Note. — Eor other cases, see Dibel and Slander, Cent. Dig. § 445; Dec. Dig. § 160.]
    Appeal from Damb County Court; H. R. Miller, Judge.
    Mrs. C. H'. Curl was convicted of slander, and she appeals.
    Affirmed.
    W. B. Dewis, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

On October 4, 1910, the grand jury of Damb county indicted appellant for slander, charging that on August 30, 1910, she “did orally, falsely, and maliciously and wantonly impute to a female in this state, to wit, Mrs. J. D. Prenty, a want of chastity, to wit, the said Mrs. C. H. Curl did then and there, in the presence and hearing of Mrs. W. C. Winters and divers other persons, falsely, maliciously, and wantonly say of and eoncernng the said Mrs. J. D. Prenty that the said Mrs. J. D. Prenty was not a good woman, and that the said Mrs. J. D. Prenty showed herself in front of the drug store before men, meaning thereby and intending to convey the impression upon the minds of the said Mrs. W. C. Winters and said divers other persons that she, the said Mrs. J. D. Prenty, had, in front of the drug store, ■ and before men, demeaned herself in a lewd and lascivious manner; that the said Mrs. C. H. Curl then and there, in the presence and hearing of the said Mrs. W. C. Winters and of divers other persons, further falsely, maliciously, and wantonly said that Eorrest Moore, Dowell French, and Guy French were the three young men that were paying attentions to her, the said Mrs. J. D. Prenty, meaning thereby, and intending to imply and to convey to the mind of the said Mrs. W. C. Winters and said divers other persons, that she, the said Mrs. J. D. Prenty, had heretofore had carnal intercourse and received into her embraces the said Eorrest Moore, Dowell French, and Guy French; that the said Mrs. C. H. Curl did then and there further say, in the presence and hearing of the said Mrs. W. C. Winters and said divers other persons, that the said Mrs. J. D. Prenty had on one occasion gone to a tackey party at the home of one Mrs. Clark,, and that Eorrest Moore stayed at. the telephone office, which .telephone office was in the same building occupied by the said Mrs. J. D. Prenty as her sleeping apartments, and that the said Mrs. .Prenty did not return to her home (her said home then and there being in the same building ■with said telephone office) from the said party till 2 o’clock in the morning, and that said Forrest Moore did not get home until morning, meaning thereby and intending, to imply and convey the impression to the mind of the said Mrs. W. O. Winters and of said divers other persons that upon the return of the said Mrs. Prenty from said party to her home at 2 o’clock in the morning she permitted the said Forrest Moore to remain with her in her home until morning, and while there that they had carnal intercourse each with the other.” She was tried on May 1, 1911, convicted, and fined $100.

Appellant made a motion to quash the indictment on the following grounds, claiming: (1) It does not charge an offense in plain and intelligible words. (2) It shows on its face that the words alleged to have been used by the defendant are not slanderous per se; that is, if she used the words alleged, she would be guilty of no offense. (3) It is duplicitous and charges more than one offense in the same count. (4) It is duplicitous, in that it charges one conversation as made in the presence and hearing of Mrs. W. O. Winters and divers other persons, and it charges another conversation with Mrs. Winters and divers other persons, but does not state that the said divers other persons were the same parties as charged in the first case; and, further, it does not allege that each of said alleged conversations were made at the same time and before the same parties. (5) “In reference to a certain allegation, the defendant is charged with having ‘said,’ which shows that the conversation was in the past, and not in the present, and does not state that it was within two years, and prior to the filing of said indictment.” (6) Because of the flagrant and prejudicial innuendoes set out therein, which innuen-does are highly prejudicial, and the language alleged to have been used in said indictment could not have been construed to mean the things alleged in said innuendoes. (7) It is vague and indefinite as to the time alleged, as it shows to hafe been written in 1900, instead of 1910, the said “0” having a “1” mark through the same, but it is vague, indefinite, and ambiguous, and defendant does not know what date was intended to have been meant by said indictment.

As to the seventh ground, there is nothing shown by the record to bear it out; and it is therefore not well taken;

The indictment follows substantially the forms laid down by Judge Willson and also by Judge White, and is sufficient. P. C. art. 1180 (new); Patterson v. State, 12 Tex. App. 458; Humbard v. State, 21 Tex. App. 200, 17 S. W. 126; Shaw v. State, 28 Tex. App. 236, 12 S. W. 1084; Dickson v. State, 34 Tex. Cr. R. 1, 28 S. W. 815, 30 S. W. 807, 53 Am. St. Rep. 694; Crane v. State, 30 Tex. App. 464, 17 S. W. 939.

The words charged to have been uttered by appellant were susceptible of the meaning alleged by the innuendoes (Kyle v. State, 55 Tex. Cr. R. 361, 116 S. W. 598), and, as the meaning of the language used, without the innuendoes, was not obvious, it was. proper to allege its meaning by the innuen-does. Berry v. State, 27 Tex. App. 483, 11 S. W. 521; Rogers v. State, 30 Tex. App. 462, 17 S. W. 548; Neely v. State, 32 Tex. Cr. R. 370, 23 S. W. 798; McKie v. State, 37 Tex. Cr. R. 544, 40 S. W. 305. Taking the whole allegations in the indictment, they are not duplicitous in the sense claimed by appellant; they charge all of the language used as being at the same time and to Mrs. Winters, and substantially to the same divers other persons. Appellant could have in no way been misled or injured by the whole allegations. O.. O. P. arts. 460 and 476 (new); Woods v. State, 58 Tex. Cr. R. 103, 124 S. W. 918. Of course, the indictment is not bad, because the innuendoes charge what was meant by the language used, as it was necessary to do this. The court did not err in overruling the motion to quash.

The state proved by Mrs. W. C. Winters fully and substantially all of the allegations charged in the indictment, and that appellant uttered to her, at the same time in the same conversation, on or about the date charged in the indictment, all the language as charged in the indictment. In fact, appellant herself testified, in substance, that she, in a conversation with Mrs. Winters, told’ her therein, and used concerning Mrs. Prenty, all the language charged in said indict-, ment. Her claim was, that she .was merely repeating what others had told her, and that, she had no intention to slander Mrs. Prenty in repeating this language. It was shown, by her testimony, on cross-examination by the state, and in substance in her testimony in chief, that previous to the time she used said language to Mrs. Winters about Mrs. Prenty that she had been closely associated with Mrs. Prenty in church work and social affairs, and that, while she had not only talked to Mrs. Winters about Mrs. Prenty,. as charged in the indictment, that she had also substantially so talked to three other-ladies in the town where this occurred, but. had never mentioned it to Mrs. Prenty. The state had ample evidence to sustain the-conviction. on each and all of the several charges in the indictment. The court gave an apt and correct charge to the jury, submitting all of the several questions to. them, for their finding.

The appellant requested several special charges to the jury, all of which were-refused by the court. The appellant took one bill of exceptions to the refusal of the-court to give these charges in the following-language: “Be it remembered that upon the-trial of the above styled and numbered cause-the defendant offered ■ to the court special charges Nos. 1, 2, 3, 4, 5, 6, 7, 8, and 9, and. asked that the same be allowed and read to the jury but the court refused the same to which action of the court the defendant then and there, in open court, excepted, and here now tenders this her bill of exceptions, and asks that the same be allowed, signed, and filed as a part of the records of the case, which is accordingly done.” This is the whole of the bill of exceptions, except the style and number of the cause and the court wherein pending and the signature of the •county judge. In the motion for new trial, the refusal of the court to give these several ■charges is complained of in very general language, to the effect that the court erred in refusing the defendant’s special charge No. -, giving the number thereof, and merely mentioning the subject-matter thereof. For instance, as to charge 1, after the above language, this follows, “which is a peremptory instruction of the defendant, instructing them to find a verdict for said defendant;” to the second, this, “to the effect that the innuendoes set out in the indictment form no part of the same” — and such like general expressions. In some other of the special •charges requested and refused; the evidence nowhere calls for or would authorize such a charge. Besides this, such special charges so requested, and complaint thereof so made in the motion for new trial, even in. a felony case, would be wholly insufficient to require this court to consider them. Berg v. State, 142 S. W. 884; Ryan v. State, 142 S. W. 879, and eases therein cited. In a misdemeanor case, as this was, the questions attempted to be raised by the requests and refusal of said charges and the bills of exceptions thereto are wholly insufficient to require this court to consider them; but we have considered them and hold that the court did not ■commit reversible error in refusing any or all of them.

By two bills, it is shown that the appellant objected, in one, to the testimony of Mrs. Dotson, which was to the effect that, shortly prior to the time that appellant is charged in the indictment with having uttered the slanderous words to Mrs. Winters, in a conversation with her (Mrs. Dotson), the appellant had used to her substantially •the same language concerning the conduct of Mrs. Prenty with the three young men mentioned in the indictment that she is charged to have used tp Mrs. Winters. In the other bill, complaint is likewise made of the testimony of Mrs. Clark of what appellant had said to her about Mrs. Prenty which had a tendency to reflect upon the virtue of Mrs. Prenty. The objection to this testimony, in effect, was that it was not uttered in the presence or hearing of Mrs. Winters, and was at a different time and place from that charged in the indictment. The court, in its charge, limited this testimony correctly to showing the intent of the appellant in using the slanderous words about Mrs. Prenty to Mrs. Winters. All of the authorities hold that such testimony is admissible, for the purpose of showing the intent the party had at the time of uttering the slanderous words. Collins v. State, 39 Tex. Cr. R. 32, 44 S. W. 846; West v. State, 44 Tex. Cr. R. 418, 71 S. W. 967; Manning v. State, 37 Tex. Cr. R. 184, 39 S. W. 118; Stayton v. State, 46 Tex. Cr. R. 207, 78 S. W. 1071, 108 Am. St. Rep. 988. There was no error in admitting this testimony as qualified by the charge of the court. Besides, appellant in her testimony voluntarily testified what she had said to Mrs. Dotson and Mrs. Clark, the same as they testified.

The only other complaint necessary to be noticed is appellant complains that the court committed reversible error in reading the first part of his charge to the jury in the absence of the appellant. The record on this subject shows this state of facts: The evidence was closed about 6 o’clock on the day the case was tried. The jury was then turned over to the sheriff, to be kept in charge until the reconvening of the court at about 7:30 p. m., or not later than 8, that night. Thereupon the county judge and the attorneys for both sides went to the county judge’s room, for the purpose of preparing the charge of the court, which was done. It took some time to do this. It was then and there, however, prepared and read over, and the appellant’s attorneys knew what it was. About the time they had concluded the preparation of the charge, the appellant’s husband, who was also an attorney, went to where they were at her request, and stated to the county judge and her own and the state’s attorney that she was not feeling well and would not return to court after supper to hear the charge, unless she had to. The attorney for the state then replied to appellant’s husband that it was entirely with her husband and appellant whether she returned or not. The county judge and attorneys then went to supper and returned to the courthouse about 8 o’clock. The jury, the county judge, and a large crowd assembled in the courtroom; it taking some little time for this to be done and quiet to be had. The judge then, believing all the parties were present, had the clerk file the charge, and began reading it to the jury. Just after reading the first page, which in effect only stated to the jury the charge contained in the indictment against the appellant and her plea of not guilty, it was discovered that a word in the charge had been omitted, and both the state’s attorney and appellant’s suggested that the word be inserted, which was done. The appellant’s attorney came into the courtroom with the appellant. At no time until the filing of the motion for new trial was the attention of the court called to the fact that the appellant and her attorney had not been in the courtroom all the time while the first part of the charge was being read. The room was poorly lighted and full of people, and the appellant and her attorney were in front of the courthouse door when the court and the crowd went upstairs, at which time the court assembled, and the charge was read. Nothing else whatever was done in the case during the absence, if absent, of the appellant, other than has been stated above. The appellant’s counsel had heard the charge read in the county Judge’s office before going to supper, and knew all the charge contained, and, as stated by the court in his qualification of the bill, “if defendant was not present, it was because of her voluntary act.”

We have carefully gone over the entire matter. No injury whatever is shown to have occurred to the appellant, even if a part of the charge was read before she came into the courtroom. No complaint whatever was then made, by either her or her attorney, that any part of the charge had been read during her absence. Without doubt, if she had then made known the fact that she was not present when the first part of the charge was read, the court would have then re-read it. Besides, if she was absent, she was voluntarily absent, and through her husband, who was an attorney, she had prior thereto notified the court, her attorney, and the state’s attorney that she did not intend to be present when the charge was read, to which the state’s attorney and all parties apparently then consented. There was no error whatever shown by this proceeding that would justify this court to reverse this case. Cain v. State, 15 Tex. App. 41; Killman v. State, 53 Tex. Cr. R. 575, 112 S. W. 92.

The verdict, as follows, “We, the jury, find the defendant, Mrs. G. H. Curl, guilty according to the law and evidence of the case, and affix the fine to the lowest limit, which is $100,” is clearly sufficient.

The judgment will be affirmed.  