Myre v. State , 126 Tex. Crim. 157 ( 1934 )

Conviction for libel; punishment, one day in the county jail.

The affidavit and information sufficiently charge the offense of libel. The State's testimony supported the averment of circulation and publication of the document in writing set out in the information as libelous, by the testimony of various persons that appellant exhibited the document to them, and further testimony that it was read with appellant's consent in the hearing of others, which amounts to circulation. See article 1274, P. C. That the document necessarily conveyed the idea that prosecuting witness had been guilty of acts therein set forth, disgraceful to him as a member of society, and that same, in its natural sequence, tended to bring said witness into contempt among honorable persons, — is manifest, and no question as to the weight, effect and character of such statements in said document was raised on the trial. Said defamatory document consisted of the affidavit of a woman, in substance, that on two separate occasions she had gone to see said witness and he had taken her into a little room near his office in the Beckham Hotel in Greenville, Hunt County, Texas, and on each occasion had carnal knowledge of her. Appellant was his own only witness, and admitted that he had caused said document to be read in the presence of other people.

Appellant has many bills of exception, no necessity being observed for a discussion of each but all of which present the proposition that he had the right to prove the truth of what was said in the affidavit referred to; and that, as bearing on said question, he might introduce affidavits of other people relating to similar but separate occurrences. As we understand the record, appellant bases his claim of right to prove the truth of the statements circulated by him, upon the first of the four subdivisions laid down in article 1290, P. C., — said subdivision one providing that the truth of a statement charged as libelous may be shown in justification "Where the publication purports to be an investigation of the official conduct of officers or men in a public capacity."

Regarding this, we have but to say that nothing in the affidavit charges that Mr. Daniels, — the person reflected upon, — was either an officer or a man acting in any public capacity; nor is there anything in same at all supporting the proposition that said document "Purports to be an investigation of the official conduct of an officer or a man in a public capacity." In other words, to enable appellant to offer in justification for his circulation of this libelous affidavit, proof of the truth of the things contained therein which affected the reputation of Mr. Daniels, it would have to appear from the affidavit itself that it purported to be, or to have been made in an investigation of the official conduct of Mr. Daniels as an officer, or a man in a public capacity. There is nothing in the affidavit, — as above indicated, — which shows or even suggests such purport. It was not said therein that Greenville Social Service, — supposedly some group or body, — was a public organization or concern, nor that Daniels had any connection, official or otherwise, with such concern, nor that any investigation was being conducted of any official conduct of Daniels as a public official, or a man acting in a public capacity, or as a result of any connection of his with said concern or otherwise.

Without here entering into any discussion of the question as to who or what is meant by the expression "Or men in a public capacity," in the latter part of subdivision one of said article 1290, supra, we are forced to hold that because of the entire absence in the libelous document itself, as set out in the affidavit and information, of any statement or showing that Daniels was an officer, statutory or otherwise, and that the affidavit on its face does not purport to be an investigation of the official conduct of Daniels, — there was no error in the action of the trial court in declining to let appellant introduce proof, direct or circumstantial, to show the truth of the defamatory statements. The affidavits of other people as to acts on other occasions, offered in evidence by appellant, were clearly not admissible.

Nor did the trial court err, in the condition of the record, in giving the special charge asked by the State, telling the jury that the truth of the statements in the affidavit was not an issue in this case. If there be criticism by appellant of such holding, we can only say that the law is to be blamed, — for after enumerating the four instances in various subdivisions of article 1290, wherein the truth may be proved in justification of alleged libelous statements, — it is said: "In other cases the truth of the facts stated in the libel, can not be inquired into." Appellant does not bring himself within any of said four instances.

The trial court did not err in declining to give special charges seeking to have the jury told that they must view the matter from the standpoint of appellant, or that of a reasonably prudent person. We know of no such doctrine applicable in libel cases.

We have examined the other complaints of appellant in his brief and bills of exception, and think them not well founded. Appellant seems to have armed himself with sundry defamatory affidavits, and proceeded to show them to various persons in the city of Greenville, and to have them read before religious gatherings and otherwise. We have examined the charge of the court, and think it not to be subject to the exceptions taken thereto.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.