Frisby v. State , 26 Tex. Ct. App. 180 ( 1888 )

White, Presiding Judge.

We find in the record several bills of exception saved by defendant at the trial to rulings of the court upon his application for continuance and as to th© admission and rejection of testimony. Were" we permitted to consider these bills of exception they would present one or more very nice questions. This we can not do, because all of said bills of excption were filed after adjournment of the court for the term. The court adjourned on the twenty-fourth, and the bills were filed on the twenty-fifth day of July, the day after adjournment. “Bills of exception both in criminal and civil cases are required by statute to be presented to the judge for his allowance and signature during the term and ‘within ten days after the trial,’ and when signed by the judge, to be ‘filed by the clerk during the term.’” (Golden v. The State, 22 Texas Ct. App., 1; Clements v. The State, Id., 23; Rev. Stat., arts. 1363, 1364; Penal Code, art. 686.) The bill must be filed during; the term. (Farrar v. Bates, 55 Texas, 193; Lockett v. Schurenberg, 60 Texas, 110; Willis v. Donac, 61 Texas, 588.)

It is strenuously contended that the allegations of the indictment are not sustained by the proofs. This prosecution was for slander, and is brought under provisions of article 645 of the Penal Code. As set forth in the indictment, the charge is that defendant did “falsely, maliciously and wantonly say of and concerning Sallie Miller that she, the said Sallie Miller, was unchaste and not virtuous, and that he, the said J. S. Frisby, could at any time have seminal and carnal intercourse, with her if an opportunity presented itself in this, that if he could get her at a private, secluded place.”

For the sake of the argument we may concede that two separate and distinct imputations or charges of want of chastity are contained in this allegation, viz., the first wherein he is alleged to have said in general terms that she “was unchaste and not virtuous,” and the second wherein he is charged to have said specifically that he “could at any time have carnal intercourse with her,” and that the State could introduce evidence in support of both declarations; still it is clear that to warrant a conviction she was bound to prove one or the other, blow whilst an indictment would not be sufficient which in general terms alleged an imputation of want of chastity (Willson’s Crim. Stat., sec. 1119), still, if what the defendant himself said was in general terms an imputation of want of chastity,' as that the female “was a whore” or “unchaste, and not virtuous,” if it be alleged that that was what the defendant said—was his language, and not a conclusion merely, stated by the pleader—then such allegation would be sufficient. (Wagner v. The State, 17 Texas Ct. App., 554.)

In all cases of this character the rule is that the language, or whatever else constitutes the imputation of want of chastity must be substantially set forth in the indictment, and must be substantially proved. “This means that the essential, "important, material portion of the slander as alleged must be proved. All the words alleged need not be proved, but enough of them must be proved as laid, to constitute the offense. It will not do to allege one imputation and prove another. Proof must correspond with the allegation.” (Conlee v. The State, 14 Texas Ct. App., 222; Humbard v. The State, 21 Texas Ct. App., 200.)

Applying this well established rule to the case before us, has the prosecution proven the slanderous words substantially? The exact words charged to have been used or uttered by defendant have certainly not been proven. He is nowhere shown to have said of and concerning Sallie Miller that she was “unchaste and not virtuous.” This is not substantially proven by proving a declaration of defendant to the effect that “the whole Miller family were whores.” Nor is the declaration that he could have carnal intercourse with her “at any time” proven by the statement that on one occasion he could have had such intercourse if he had had an opportunity.

Opinion delivered October 17, 1888.

It was said in Lagrone’s case, 12 Texas Court of Appeals, 426: “We think the defendant is entitled to be informed in the charge of the particular slander which he is called upon to answer, that he may prepare his defense. He is allowed under the statute to justify by proving the truth of the imputation. How can he come to the trial prepared to avail himself of this defense unless he has been informed of the particular imputation charged against him?”

Because the allegations of the indictment are not sufficiently supported by the proof, the judgment is reversed and the cause remanded.

Reversed and remanded.