Stichtd v. State , 25 Tex. Ct. App. 420 ( 1888 )

Willson, Judge.

In the statement of facts before us there is no evidence showing the time of the commission of the alleged offense. This is fatal to the conviction, and the Assistant Attorney General confesses the error. (Temple v. The State, 15 Texas Ct. App., 304.)

Opinion delivered May 9, 1888.

A novel question "is presented in the record. In the information the alleged slanderous words are set forth in the English language. On the trial, over the objections of the defendant, the State was permitted to prove slanderous words uttered by the defendant in the German language, said words, when interpreted, meaning substantially the same as the slanderous words set forth in the information. The question presented is: When oral slander is alleged to have been committed by the use of English language, can such slander committed by the use of the German language be proved, there being no allegation that the slander was uttered in the German language? We are of the opinion that the question must be answered in the negative. In a civil action for slander, the rule is that where the slanderous words were spoken in a foreign language they must be set forth. together with a translation into English. To set forth the foreign words alone will not be sufficient. And to allege a publication of English words, and prove a publication of words in another tongue, is a variance. (Townshend on Slander, sec. 330.)

The reasons upon which the above stated rule is founded demand its application with equal if not of greater force in a criminal than in a civil prosecution for slander. In all criminal prosecutions the accused party has the right to be informed by the information, or the indictment, of the facts charged against him, so that he may prepare to meet them, and he can only be required on the trial to meet and defend against the exact matter charged against him. The allegation and the proof must meet, and substantially correspond, otherwise the accused might be convicted of a different offense than that with which he is charged, and which he had not been informed he was called upon to meet. To charge a person with uttering slanderous words in the English language certainly does not inform him that he will be required to meet and defend against words uttered by him in a different language. We hold that the court erred in permitting the State to prove the words uttered by the defendant in the German language, and that the slander as charged in the information, is materially variant from that proved.

The judgment is reversed and the cause is remanded.

Reversed and remanded.