Ethridge v. State

• Decision Date: 14 October 1914
• Docket Number: (No. 3232.)
• Citation: 169 S.W. 1152
• Parties: ETHRIDGE v. STATE.
• Court: Texas Court of Criminal Appeals

169 S.W. 1152

ETHRIDGE v. STATE.

(No. 3232.)

Court of Criminal Appeals of Texas.

October 14, 1914.

Appeal from Taylor County Court; E. M. Overshiner, Judge.

Henry Ethridge was convicted of slander, and he appeals Affirmed.

Ben L. Cox, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant appeals from a conviction of slander. We have carefully read and considered the statement of facts and record in this case more than once. The evidence amply sustains the verdict.

Appellant contends, and presents the question in various ways, that the evidence did not establish that the slanderous language used by him was with reference to the young girl it was alleged it was used about. It is unnecessary to detail the evidence. No useful purpose could be subserved by doing so. There can be no question from the evidence but that the language used was about the young girl and no other. The court's charge required the jury to so believe before they could convict.

The uncontradicted evidence shows that the slanderous language was used by appellant in the presence and hearing of six persons. The state introduced three of these, who testified positively to its use. Appellant introduced another one of these witnesses, who testified about other matters, but appellant did not have him testify on this subject. The other two of these witnesses were not introduced by either side. The record clearly indicates that these witnesses, or John Reed, one of them, especially, was friendly and favorable to appellant, and present at the trial. By one of his bills of exceptions he complains that the attorney specially employed in behalf of the state used this language in his argument to the jury:

"John Reed was present down there on the road that night where the defendant uttered these false and malicious words against this young lady. John Reed is here in attendance upon this court, and the defendant has not seen fit to put John Reed on the witness stand to deny that he made the statement, and it has not been denied that the defendant said it."

Appellant claims that this statement was an allusion to the fact that the appellant himself did not testify, and claims that it is reversible error. He asked no written charge of the court that the jury should disregard it. In our opinion, it is not a reference to the appellant's failure to testify, and it does not present error. Link v. State, 164 S. W. 995, and cases therein cited; Gatlin v. State, 163 S. W. 428, and cases therein cited. It is needless to collate and cite the many cases to the same effect.

The complaint and information aver that appellant did "falsely and maliciously and falsely and wantonly impute," etc., a want of chastity to the young girl, naming her, in the presence and hearing of certain persons, naming them, and averring the language used. This followed the language of the statute. P. C. art. 1180. The evidence clearly raised and would sustain a verdict more especially that appellant used said language falsely and maliciously as well as falsely and wantonly. Appellant requested only one charge, which is to this effect:

Before you can convict the defendant you must find beyond a reasonable doubt that he made the statements alleged in the complaint, and that they referred to said girl, and that they were falsely and wantonly made, and, unless you so find, you will acquit him.

It will be seen by this that this special charge would have submitted only that said statements were falsely and wantonly made and to acquit him if they were not, leaving out entirely the other element that they were falsely and maliciously made. The court did not err in refusing to give this special charge. It has always been held by this court that, if the special charge requested in a misdemeanor case is not correct as applicable to the case, the court must refuse it. This charge would have erroneously told the jury to acquit appellant, unless he falsely and wantonly made the statements, when, as a matter of fact, he was guilty if he falsely and maliciously made them. Lawrence v. State, 20 Tex. App. 536; Sparks v. State, 23 Tex. App. 448, 5 S. W. 135; Hobbs v. State, 7 Tex. App. 118; Perkins v. State, 144 S. W. 245; Mealer v. State, 145 S. W. 354. It is unnecessary to cite the many other cases so holding.

By appellant's only other bill he complains that the court committed...