Baxter v. State

• Decision Date: 27 May 1895
• Citation: 31 S.W. 394
• Parties: BAXTER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 394

31 S.W. 394

BAXTER v. STATE.

Court of Criminal Appeals of Texas.

May 27, 1895.

Appeal from Rusk county court; S. J. Hendrick, Judge.

James R. Baxter was convicted of slander, and appeals. Reversed.

Turner & Turner, Jones & Jones, and W. C. Buford, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant in this case was tried in the court below on an indictment charging him with slander, was convicted, and his punishment assessed at a fine of $150 and six months' imprisonment in the county jail; and from the judgment and sentence of the lower court he prosecutes this appeal. The slander, as alleged in the indictment, is as follows: "That the said J. R. Baxter did then and there falsely, willfully, maliciously, and wantonly say of and concerning one Mittie Baxter, in the presence and hearing of Ross Norvell and divers other persons, in substance that he, the said J. R. Baxter, had been deceived, and that the child of Mittie Baxter was not the child of said J. R. Baxter, but was the child of one Houston, meaning thereby that the said Mittie Baxter had given birth to the child and that the said Houston, a person other than the husband of said Mittie Baxter, had had carnal intercourse with her, the said Mittie Baxter, and was the father of the said child, the said Mittie Baxter being then and there the lawful wife of said J. R. Baxter." The record in this case shows that the defendant married Mittie Baxter on the 8th of January, 1892, and that about a week thereafter he took her to Louisville, Ky., where, on February 3d following, she was delivered of a child. He returned to Texas, leaving her in Louisville, and the words set out in the indictment as constituting the slander were spoken by him of and concerning his wife after his return from Kentucky. The evidence on the part of the state shows various acts of carnal intercourse on the part of the defendant with the said Mittie Baxter, nee Tips, prior to their intermarriage; and the question here presented for our consideration is whether a husband, who has previous to his intermarriage had carnal knowledge of his wife, can slander her by imputing to her a want of chastity under the circumstances of this case. The gravamen of this offense is the imputation of a want of chastity to a female alleged to be slandered. If the prosecutrix in this case, as is conceded by the state, had repeated acts of carnal intercourse with the defendant prior to their marriage,...