Alsup v. State

• Decision Date: 14 December 1921
• Docket Number: (No. 6281.)
• Citation: 238 S.W. 667
• Parties: ALSUP v. STATE.
• Court: Texas Court of Criminal Appeals

238 S.W. 667

ALSUP v. STATE.

(No. 6281.)

Court of Criminal Appeals of Texas.

December 14, 1921.

Rehearing Denied March 8, 1922.

Appeal from McLennan County Court; Giles P. Lester, Judge.

Fisher Alsup was convicted of libel, and he appeals. Affirmed.

De Witt Bowmer, of Temple, and A. L. Curtis, of Belton, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant was convicted of libel.

From the alleged libelous statements, the following is quoted:

"In the recent Democratic campaign Mr. Bailey introduced public records showing that Pat M. Neff was born in 1872. In reply Neff denounced Mr. Bailey as a liar and a falsifier and claimed that he was born in 1871. To support his assertion the family Bible of his father Noah Neff was produced, giving the names and birth of all the brothes and sisters of Pat M. Neff.

"The last entry in said Bible read:

"`Patty Morris Neff was born Nov. 26th, 1871.'

"So far as my information goes, I have never heard that Pat M. Neff has ever specifically claimed that this entry in the Bible was made for his birth date. Nor have I ever heard that he claimed that his original name was Patty. Nor has Pat Neff ever anywhere spelled his name with two t's (Patt). He swore in his application for place on the ballot that it was Pat, and it now so appears on the ticket.

"During the campaign the page in the Bible was photographed in Waco and later was photographed in Dallas and I have copies of both photographs in my possession. The first photograph plainly showed the name to be `Patty.' The second photograph showed the letter `y' erased and the Bible now reads `Patt Morris Neff.' [Here follows the reproduction of the photograph copy.]

"Having recently been informed that the said Patty Morris Neff was born Nov. 26th, 1871, and was a sister of Pat M. Neff, and had died when about a year old, and that her grave was marked by a tombstone in the Post Oak graveyard, situated about three miles south of Oglesby, in Coryell county, Texas, for my own satisfaction, and for the purpose of getting all the facts of a controversy which had been the subject of so much discussion in the campaign, I, in company with a friend, went to said Post Oak graveyard.

"There I found nine graves of the Neff family on one lot, all marked by tombstones and inscriptions on same, except one, which did not have the tombstone, but there remained a limestone foundation for the missing tombstone. I examined carefully said foundation. It is limestone block about 16 inches square and about 10 inches thick (deep). In the top surface is cut a trench or groove, some 2 inches wide and 12 inches long in which to fit the marble slab or tombstone.

"Three of the graves in the same row, two south and one north of it, had similar foundations, in the grooves of which were small upright marble slabs bearing marks as indicated by the diagram printed below. While the grave farthest north is marked by a marble stone of different form. All appearances indicated that the stone had been recently removed. A large branch of sedge grass about two feet high and in bloom which stood near the head of the grave had been stepped on and pressed so firmly that all the stems were bent or broken just at the top of the ground, and it lay still green, full length along the earth. Also the violent jerk or pull that lifted the slab out of the groove moved the foundation an inch or so to the east, leaving exposed the bare ground while the grass grew close and even partially covered the foundations. It was obvious that the feet of the person were firmly pressing on the large bunch of sedge grass and broke it down while tugging at the slab. [Here follows diagram of burial plot, showing graves; also one with the missing headstone.]

"By checking the tombstones against the Bible records we find that all the Neff children are buried in this graveyard with the exception of Benjamin Neff, who is buried at McGregor, Texas (and I have seen his tomb there), and Sallie Jane and Samuel Herbert Neff, who are yet living.

"The question then arises: `From whose was the tombstone taken?'

"`If said missing tombstone did not bear the inscription of something like Patty, then what was on it?'

"`If said tombstone did not bear something like Patty, then why was it necessary to erase the "y" from the family Bible between Waco and Dallas?'

"`Why would anybody want to remove said tombstone if it did not have on it Patty or something like it?'

"`If the missing tombstone was for some other child of the Neff family, then what was its name and why was it not entered in the family Bible?'

"`If the missing tombstone was not for one of the Neff children, then why was the grave put in the center of the graves of the Neff children?'

"`Mr. Voter, as I am a candidate for superintendent of public instruction, on the American Party ticket, I will not make any charges or argument, but will leave you to answer these questions for yourself. I simply give you the facts as I found them, and as anybody else can find them on the ground. After I had visited the graveyard, I immediately sought out one of the citizens of the community, and had him go with me and I pointed out to him the conditions as I have described them and called his attention to the missing tombstone.'"

"Libel" is defined as follows:

"He is guilty of `libel' who, with intent to injure, makes, writes, prints, publishes, sells or circulates any malicious statement affecting the reputation of another in respect to any matter or thing pointed out in this chapter."

Omitting items 1, 3, and 4, which are without bearing on this case, article 1157 of the Penal Code reads thus:

"The written, printed or published statement, to come within the definition of libel, must convey the idea either— * * *

"2. That he has been guilty of some act or omission which, though not a penal offense, is disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons; or * * *

"5. That any person in office, or a candidate therefor, is dishonest, and therefore unworthy of such office, or that while in office he has been guilty of some malfeasance rendering him unworthy of the place."

The court overruled the motion to quash the information and submitted the case to the jury on the theory that they might be authorized to find that the language conveyed the idea that the conduct imputed to Pat M. Neff had been disgraceful, though not penal, and that its natural consequences would be to bring him into contempt among honorable persons, and that he was dishonest and therefore unworthy of the office which he was seeking. It also held that the evidence sustained the charge contained in the information.

This appeal calls in question the correctness of these rulings of the court. The evidence is sufficient to support the finding of the jury that Pat M. Neff, in paying his poll tax, had signed a statement going to show that 1872 was the year of his birth; and that a roster of the members of the Legislature gave like information; that, if this was the correct date, it would have been incumbent upon him to register for draft in the United States Army; that this was not done by him; that in the political campaign use of these matters was made against him; that, on the issue thus arising before the public, the register of births in the family Bible and the testimony of members of his family, including his mother, fixed the date of his birth at 1871; that he explained that before the controversy arose he labored under a mistake of fact as to the year of his birth. The family Bible showed the date of birth of a number of brothers and sisters and also bore the inscription, "Patty Morris Neff, born November 26, 1871"; that in his youth and infancy he was called "Patty." The evidence also supports the finding that the date of his birth was November, 1871; that the entry in the Bible was intended for his name; that he had no sister born at that time bearing that name; that all the graves of the deceased members of the Neff family had headstones marking their graves; that none of these had been removed; that the written statements set out in the information were signed by the appellant and by him delivered to the publishers of the "Ferguson Forum," a newspaper published in Temple, in Bell county, Tex., having a circulation throughout the state, including McLennan county; that there was no mutilation of the inscription.

It was conceded that there was a discrepancy between the date of Pat M. Neff's birth, as given in his poll tax affidavit, and in the entry in the family Bible; that he had failed to register for draft service; and that these matters became the subject of adverse comment in the political campaign. The appellant testified that these facts were true, and testified that, at the time the document was written and published, he believed all of the statements of facts contained in the document were true; that he, in fact, had seen newspaper reproductions of photographs of the entry in the Bible showing the discrepancy in spelling; that he had examined the cemetery and stated the facts as he saw them and as they were set out; and that his statements concerning information received by him were true. From his testimony, we understand that, at the time of the publication, he regarded the facts which were then in his possession and which were disclosed in the article were such as rendered Pat M. Neff unworthy to hold the office which he was seeking; and that he felt it his patriotic duty to make known to the public the facts which were in his possession bearing upon the issue. The statement conveys the idea that, in his race for Governor, his veracity was attacked by the exhibition of a sworn document to the effect that he was born in 1872. He denounced this as false, claiming that he was born in 1871. It conveys the idea that, in support of his attack upon...