Roberts v. State

• Decision Date: 13 February 1907
• Citation: 100 S.W. 150
• Parties: ROBERTS v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 150

ROBERTS v. STATE.

Court of Criminal Appeals of Texas.

February 13, 1907.

Appeal from Hunt County Court; F. M. Newton, Judge.

J. W. Roberts was convicted of slander, and appeals. Reversed.

A. H. Hepner and J. S. Sherrill, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of slander, and his punishment assessed at a fine of $100, and prosecutes this appeal.

Appellant made a motion to quash the information on the ground that it did not charge an offense. The offense charged is that appellant did impute to a female in this state, to wit, M. E. Cook and Topsey Cook, a want of chastity, to wit: The said J. W. Roberts, in the presence and hearing of I. T. Titus and Rufe Green, falsely, maliciously, and wantonly did say of and concerning the said M. E. Cook and Topsey Cook in substance as follows, to wit: "Old Cook's folks (meaning thereby the said M. E. Cook and Topsey Cook, wife and daughter, respectively, of B. L. Cook) are nothing but a set of whores." The objection to this information is that defendant used the singular number in the first instance, and then set out a slander concerning two women. We do not think this is well taken. There is nothing duplicitous in the information. The allegation that he imputed to a female a want of chastity, to wit, M. E. Cook and Topsey Cook, was not an incongruous statement. In developing the case it merely shows the details, which we do not think clashes with the first allegation. It is competent to impute to two or more females a want of chastity. See Wallace v. State (Tex. Cr. App.) 49 S. W. 395. The indictment did not require any further innuendo averment than was used to make it clear what was referred to as being slanderous.

Appellant also claims that there is a variance between the allegation and the proof. The proof of the language used by appellant was testified to by the witness Titus, and he says that on the occasion inquired about appellant should have said: "Old Cook's folks, except Bud Cason's wife, are nothing but a set of whores." The contention is that this was different language than that used in the information, in that it excepted Bud Cason's wife from the accusation, while at the same time considering her as one of "Old Cook's folks." We are aware it has been held that additional language can be proved, to that used in the information, which does not vary the language used and set out in the information. See Whitehead v. State, 39 Tex. Cr. R. 89, 45 S. W. 10. But the language in said case was in effect a separate part of the same conversation. Here a part of the conversation which was essential to an understanding of what was said was eliminated from the information; and it may further be remarked, in this connection, that inasmuch as it was shown that Cason's wife did not live at the time with B. L. Cook, and she was excepted from his folks, that he must have included three other daughters, who also did not live with him, in his accusation. We believe that there is a variance between the proof here and the allegation in the indictment. Some strictness is required in this regard, and it should be adhered to. See Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340, West v. State (...