Martin v. State , 77 Tex. Crim. 384 ( 1915 )

Appellant was convicted of slander and assessed the lowest punishment.

The statement of facts and bills of exceptions were approved and filed about seventy-five days after the term of court at which he was tried had adjourned. Hence they can not be considered.

The only question we can review is the sufficiency of the pleading. The prosecution was had upon a complaint and information, the latter following the former and based thereon.

After the necessary usual allegations in the first and closing parts, the information avers, that on July 1, 1914, "one Joe Martin did then and there orally, falsely and maliciously, and falsely and wantonly, impute to one Elner Stephens, then and there an unmarried female in this State, a want of chastity in this, towit: He, the said Joe Martin, did then and there, in the presence and hearing of G.D. Smith, falsely, maliciously and wantonly say of and concerning the said Elner Stephens, in substance and effect the following: That Elner Stephens was all out of shape and that John Robison had left the country. That old man Stephens had written him, Robison, a note that he, Robison, would have to marry her or take a load of shot. That he, Joe Martin, had told him, Robison, that there was no use of his going because it could be proved that others had been there besides him, Robison. The said Joe Martin meaning by the expression that ``Elner Stephens was all out of shape' that the said Elner Stephens was pregnant; and meaning by the expression ``that others had been there' that other persons had been having carnal intercourse with the said Elner Stephens."

Appellant made a motion to quash it on several grounds. We will discuss only his first. None of the others present any sufficient cause to quash, or to require any discussion.

His first ground is: "Because the information does not purport to set out the language claimed to have been used by the defendant, but only purports to set out the substance and effect of same, whereas, under the law the exact language should be set out, the substance thereof proven by the State, and the effect thereof left to the court and jury."

His able and eminent attorneys in their brief now say: "We concede as well settled the rule many times declared by this court that in a slander case it is essential that the information or indictment set forth substantially the language which constitutes the imputation of a want of chastity. See Conlee v. State, 14 Texas Crim. App., 222; Frisby v. State, 26 Texas Crim. App., 180. We do not contend that it is necessary to set out the language exactly or literally. . . . This court has declared in the above cited cases, as well as in others, that it is necessary only to set out substantially the language relied upon." There can be no question but that our law is as stated. So that it is unnecessary to cite the other cases to that effect, or discuss that question at all.

Appellant in his brief further says: "The question here involved is whether or not this rule (that ``it is necessary only to set out substantially the language,' — ``it is not necessary to set out the language exactly or literally') permits the pleader to state what on the face of the information purports to be merely the substance and effect of what was stated," hiscontention being that said conceded rule "does not mean that he (the pleader) may set out merely the meaning or import of the words said."

His contention might be conceded and yet in no way result in the information being held bad, for it does not aver "merely the meaning or import" of the words said, but instead it avers that "he, the said Joe Martin, did then and there say, in substanceand effect, the following — then gives what he said, using the third person, "he," and not the first person, "I." In other words, appellant would have us hold that when it is alleged that appellant said "in substance and effect" the following, then states what he said, is the same as alleging that appellant "meant or imported" the following: then states what he meant orimported merely, and not what he said. This we can not do. Averring that he "in substance and effect" said or did say, is by no means the same, as by what it is averred he said he "merelymeant or imported," a certain result or effect of his language uttered. In our opinion the averment is radically different from what appellant contends it should be held to be, and to hold as he contends, we think, would do violence to the language used.

As we further understand appellant's contention, it is, if the pleading had left off the word "effect." and averred he, Joe Martin, did, etc., say "in substance" the following, then the pleading would have been good. In our opinion averring he did say "in substance and effect," ought not, and can not reasonably, be held to mean, that what is then averred he said is "merely the meaning or import" of the language actually used.

Neither the case of Barnett v. State, 35 Tex.Crim. Rep., nor Simer v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 388, mentioned by appellant have any application to the question herein. Neither of those cases discussed or decided any question of pleading. No such question was raised therein. But in each of them was discussed a variance between the allegation and the proof and decided only that question.

Our statute (P.C., art. 10) is: "Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed."

This but prescribes a rule for the construction of the Code, which is equally, and practically universally, applicable to "a word, term or phrase" used in a pleading or other writing. Taking into consideration the context and subject matter of the whole of the pleading herein, we think there can be no question but that the phrase that "said Joe Martin did then and there . . . say of and concerning the said Elner Stephens, in substance and effect, the following:" could not otherwise be "understood in common language" than what it is then alleged he said, was substantially what he did say, instead of "merely what he meant or imported."

Besides, we have other statutory provisions as to what allegations are necessary to constitute a good pleading: . . . "That which is not necessary to prove need not be stated" in a pleading. (C.C.P., art. 452.) It was unnecessary to allege the language exactly or literally, but sufficient to allege it substantially only. If it had been alleged literally, it would have been sufficient to have proved it substantially only. Article 453, C.C.P., says: "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense." Article 460 is: "An indictment for any offense against the penal laws of this State shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment." "The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: The prevention, suppression and punishment of crime." (Art. 25, C.C.P.)

Appellant truly says, "it is not necessary to set out the language exactly or literally — it is necessary only to set out substantially the language," and that, and that only, was what was done in said information. The information was good and valid. The judgment is affirmed.

Affirmed.