Humbard v. State

• Decision Date: 22 April 1886
• Citation: 17 S.W. 126
• Court: Texas Court of Appeals
• Parties: HUMBARD v. STATE.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 126

HUMBARD v. STATE.¹

Court of Appeals of Texas.

April 22, 1886.

Appeal from Dallas county court; E. G. BOWER, Judge.

A. S. Humbard was convicted of slander in imputing want of chastity to one R. J. Huckaby, an unmarried female, it being alleged that defendant had said that prosecutrix was criminally intimate with her half-brother, Ras. Huffman, with whom she was living. Defendant appeals. Reversed.

Stemmons & Field and Crawford & Crawford, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

This is an appeal from a judgment of conviction for slander under article 645 of the Penal Code,² appellant having been charged with having maliciously, falsely, and wantonly, in the presence of one W. W. Aulick, imputed a want of chastity to one R. J. Huckaby, an unmarried female person. The slanderous words constituting the alleged imputation are set forth in the indictment, as is required in such cases should be done. (Willson's Crim. Forms, No. 403, p. 180,) and the indictment sufficiently charges the offense. Another well-established rule is, in such cases, that, "it being necessary that the slanderous words should be substantially alleged, it follows that they must be substantially proved. This means that the essential, important, material portion of the slander, as alleged, must be proved. All the words alleged need not be proved, but enough of them must be proved as laid to constitute the offense. It will not do to allege one imputation and prove another. Proof must correspond with allegations. This is an elementary rule governing in criminal, as well as in civil, actions, and cannot, with safety and justice, be disregarded." Conlee v. State, 14 Tex. App. 222. W. W. Aulick testified to the statements made by defendant to him. He testified that defendant had said to him, "Ras. has been screwing his sister." Witness asked him: "Who? Becky Jane?" and defendant said: "Yes, Becky Jane." There is no proof in the record that "Becky Jane" is R. J. Huckaby, or that R. J. Huckaby is called "Becky Jane" Huckaby. It was essential that this proof should have been made. There is no allegation in the indictment that R. J. Huckaby is the sister of Ras. Huffman, nor that R. J. Huckaby was ever known or called "Becky Jane." There should have been a proper averment and proof, or, at least, there should have been proof identifying the party as having or being known by both names. Cassaday v. State, 4 Tex. App. 96. "The name of the injured party, as it is designated in the indictment, must be proven sufficiently, so as to identify the party, (Hardin v. State, 26 Tex. 113; Perry v. State, 4 Tex. App. 566; Murphy v. State, 6 Tex. App. 554; Loving v. State, 9 Tex. App. 471; Weaver v. State, 13 Tex. App. 191;) and, unless this is done, the proof will not only be held insufficient, but the variance between the allegations and...