Barnett v. State

• Decision Date: 11 December 1895
• Parties: BARNETT v. STATE.
• Court: Texas Court of Criminal Appeals

33 S.W. 340

BARNETT v. STATE.

Court of Criminal Appeals of Texas.

December 11, 1895.

Appeal from district court, Galveston county; E. D. Cavin, Judge.

Joseph Barnett was convicted of the slander of a female, and appeals. Reversed.

Marsene Johnson, for appellant. O. N. Brown and Mann Trice, for the State.

HURT, P. J.

This appellant was convicted of the slander of a female and his punishment assessed at $100. The slander alleged in the indictment is in the following words: "That the said Joseph Barnett had had carnal intercourse with her, the said Bertha Hartfield." The proof was that the appellant had said: "You see that girl [pointing to Bertha Hartfield]. Well, I've f____d her." Appellant moved for a new trial on the ground that the evidence did not sustain the verdict of the jury. His motion was overruled, and he appealed. The question is whether there is a variance between the allegation contained in the indictment and the proof. The rules upon this character of cases, namely, slander and libel, are—First, that the words used, assigned for slander, must be set out in the indictment or declaration; second, so much of the language as is necessary to constitute slander must be proved; third, a variation in the form of expression is immaterial. The fact that he used other words than those alleged is immaterial, if the language charged is proved, or so much thereof as constitutes slander. If proof of other words besides those alleged alter the meaning of the language, then this may become a material fact, but this branch of the subject will not be discussed here. The main question in this case is whether the proof of words with precisely the same meaning, and no other, will suffice. The words used, to wit, "I've f____d her," have no other meaning than those alleged, namely, "did have carnal knowledge." So the question is clearly presented, which is, will proof of words of the same or similar import satisfy the allegation? We have held, and still hold, that it will not. Townsend on Slander says: "The words alleged cannot be proved by showing that the defendant published the same meaning in different words, even if equivalent and of similar import." He goes so far as to say: "Proof of words spoken in the second person will not support counts for words spoken in the third person, and vice versa. Proof of a positive assertion is not admitted under an allegation of a hypothetical assertion. An allegation that the words were, `He swore to a lie,' is...