Byrd v. State

Appellant was convicted of libel, and his punishment assessed at a fine of $200; hence this appeal.

Appellant made a motion to quash the information on the following grounds: "(1) Because it is not set out and alleged in said bill of information what idea was intended to be conveyed by the alleged publication imputed to the defendant, or that any idea at all was intended to be conveyed by said publication concerning the said John H. Lewis. (2) Because it is not alleged in said bill of information that the said alleged publication concerning John H. Lewis, and imputed to this defendant, conveyed the idea that the said John H. Lewis had been guilty of any penal offense known to the laws of the State of Texas, and does not show and allege to what penal offense the said alleged publication referred, if it referred to any penal offense whatever. (3) Because it is not alleged and pointed out in the said bill of information what act or acts or omissions referred to in the said alleged publication, or any part thereof, was disgraceful to the said John H. Lewis, as a member of society, and that the natural consequence of which said act was to bring him, the said John H. Lewis, into contempt among honorable persons. (4) Because it is not alleged in said bill of information that the alleged publication concerning the said John H. Lewis, and imputed to this defendant, conveyed the idea that the said John H. Lewis was notoriously of bad or infamous character. (5) Because it is not alleged and pointed out by innuendo, in said bill of information, to what particular acts of the said John H. Lewis the alleged publication referred, and because there is no allegation contained in said bill of information pointing out or giving direction to the language used in said alleged publication."

The indictment set out that the publication was made with intent to injure John H. Lewis, and that it was a malicious statement of and concerning the said John H. Lewis, affecting his reputation, and then set out the publication, which said publication, among other things, embodied the following: "Of all the mean, low-down, contemptible thieves that we have ever heard of, this John Henry Lewis heads the list; and, to our regret and sorrow, we are forced to acknowledge that he is a resident of this town;" and "it's impossible to find anything we can compare this fellow to, because his mode of thieving and stealing discounts the highwayman and midnight burglar 100 per cent." The motion to quash was overruled by the court, and appellant assigns this action of the court as error. The contention of appellant is that under article 727, Penal Code 1895, which more specifically defines the character of libel for which one may be prosecuted, the pleader should have set forth one or more of said grounds; that is, if the libel was on the ground that it charged that prosecutor had been guilty of some penal offense, this should have been stated in the indictment; or if it was intended to charge appellant with having said that prosecutor had been guilty of some act or omission, which, though not a penal offense, was disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons, that this should be stated in the indictment. This contention is in accord with the decisions of this court in McKie v. State, 37 Texas Criminal Reports, 544, and Nordhaus v. State, 40 Southwestern Reporter, 804. Taking the alleged libelous publication in this case, the prosecution might possibly be maintained under it on the first, second, or fourth subdivisions of article 727, Penal Code, 1895, and the counts might be set out in the indictment charging the libel under all of said subdivisions; and in such case the transaction could be conducted on all of said counts. Where it is not stated in the information under which particular subdivision the prosecution is to be maintained, and the alleged libelous matter, as in the present case, is voluminous, and susceptible of various interpretations, the court will be left to grope its way through a great mass of matter in order to cull out the libelous matter charged; and, more than that, appellant would not come prepared to meet the particular libel which he was called upon to answer. Evidently, the statute intended something more than the bare statement that a defendant had published certain libelous matter intended to injure another, and then set out in haec verba a mass of printed matter assumed to be libelous. There is no difficulty in this matter if the statute be properly followed in setting out the libel, and there can be done in the submission of the case, it was equally necessary when it was presented in court by the plea. Though proper, this charge had no to the first subdivision under article 727, Penal Code 1895, to the effect that said written matter charges that the prosecutor had been guilty of some penal offense, to wit, theft. If this course was found necessary to be done in the submission of the case, it was equally necessary when it was presented in court by the plea. Though proper, this charge had no support in specific allegations in the indictment.

Appellant further contends that the whole of said paper containing the alleged libel should not have been admitted in evidence, as it contained other matter not pertinent to the issue submitted by the court to the jury. To this proposition we can not agree. It was a part and parcel of the same transaction, and, in connection with the alleged libelous matter, would indicate or show the animus of the appellant. It was a part of the res gestae of the publication. It is not necessary to notice the other matters assigned as error. The judgment is reversed, and the prosecution ordered dismissed.

Reversed and dismissed.