Simer v. State

• Decision Date: 31 May 1911
• Citation: 138 S.W. 388
• Parties: SIMER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 388

138 S.W. 388

SIMER v. STATE.

Court of Criminal Appeals of Texas.

May 31, 1911.

Appeal from Stephens County Court; W. C. Veale, Judge.

Ennis Simer was convicted of slander, and appeals. Reversed and remanded.

W. P. Sebastian and Stubblefield & Patterson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case the defendant was indicted, charged with the offense of slander, and upon a trial he was convicted, and his punishment assessed at a fine of $100 and 10 days imprisonment in the county jail.

While the evidence would abundantly support a charge that defendant uttered a slander in regard to the young lady, yet defendant insists that the allegations in an indictment and the proof must correspond; and, there being a variance between the proof and the allegation, that this cause must be reversed. The indictment charges that defendant "did then and there unlawfully, orally, falsely, and maliciously and falsely and wantonly impute to one Nona Maynard, then and there an unmarried female in this state, a want of chastity in this, to wit: He, the said Ennis Simer, did then and there, in the presence and hearing of Jerry Christesson, falsely, maliciously, and wantonly say of and concerning the said Nona Maynard, in substance, that Cleveland McBride and Will Canterberry had knocked the said Nona Maynard up and had left the country, and that Oscar McBride was keeping them posted: The meaning of which said statement was, and the meaning intended to be conveyed to the said Jerry Christesson was, that the said Cleveland McBride and the said Will Canterberry had been having sexual intercourse with the said Nona Maynard, and that one of them had impregnated the said Nona Maynard."

Jerry Christesson testified: "I had a conversation with the defendant, Ennis Simer. We were talking about boys going with the girls and the conversation finally drifted to the Maynard girls, and the defendant told me that Cleveland McBride and Will Canterberry had knocked the Maynard girls up and had left the country, and that Oscar McBride was keeping them posted. This is the only conversation of the kind he ever had with me or in my presence."

In his special charges Nos. 1 and 4 defendant requested charges on his theory of the case, which were refused by the court. While the pleader need not have made such specific allegations, yet, having made the allegations above quoted, it was incumbent on the state to make proof of the allegations as alleged. In the testimony of the witness quoted it cannot be construed into a statement that both McBride and Canterberry had had sexual intercourse with the young lady, but the testimony negatives such conclusion. If they were acting together, it would not be deducible that they both had the same girl, when two girls were referred to. Again the words were "Maynard girls," and not Nona Maynard. In cases of slander this court has held that the language alleged in the indictment must be supported by the testimony, and proven substantially, and proving words of similar import will not suffice. This, so far as we can find, has been the unvarying rule in this court. In Conlee v. State, 14 Tex. App. 224, Judge Willson, speaking for the court, says: "An information charged the defendant as follows: That `one John Conlee did orally, falsely, and maliciously impute to Miss Florence Bullock a want of chastity, in this: That the said John Conlee did then and there orally, falsely, and maliciously say to one Gus Pitts that he, the said John Conlee, had had carnal knowledge of her, the said Miss Florence Bullock, and that she, the said Miss Florence Bullock, was of bad character.' To support this charge, the state proved by Gus Pitts the language used by defendant, which was as follows: `She would have been a nice girl if he (defendant) had not done what he had done to her; and, if I (meaning witness) did not believe it, meet him at the ginhouse that night, and he would prove it.' The witness stated that the above language was the only statement made or words used by defendant to him about Miss Florence Bullock; that defendant did not state to him that he, defendant, had had carnal knowledge of Miss Bullock. Defendant objected to this evidence because it was not in substance the slander charged in the information, and, his objections being overruled, he excepted, and insists that the conviction should be set aside because the evidence does not prove the charge as alleged in the information. It has been held by this court that in a prosecution for this offense the information or indictment must set forth substantially the language, or whatever else, which constitutes the imputation of a want of chastity. Lagrone v. State, 12 Tex. App. 426; Melton v. State, 12 Tex. App. 552. It being necessary, therefore, 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 allegation. This is an elementary rule governing in criminal as well as in civil actions, and cannot with safety and justice be disregarded. It is unnecessary to cite authority in support of such ancient and universally recognized principles as these. In the case before us we are compelled, reluctantly, to hold that the language of defendant as proved was not even substantially the language charged in the information. It was entirely different, containing none of the essential, important, or material words alleged to have been uttered by the defendant. On the contrary, it was proved that the alleged words were not uttered by the defendant. However basely the defendant may have slandered the young lady, he did not slander her in the language set out in the information. We must reverse the judgment and remand the cause, for the reason that there is a fatal variance between the slander as alleged and the language proved."

In the case of Barnett v. State, 35 Tex. Cr. R. 281, 33 S. W. 340, Judge Hurt, speaking for the court, says: "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. Townshend 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.'"

In West v. State, 44 Tex. Cr. R. 419, 71 S. W. 968, Judge Davidson, speaking for the court, says: "The question of variance is relied on, and we believe it exists between the proof and the allegations. The indictment alleges appellant said `he saw Emma Nelson having intercourse with Carl,' meaning Carl Nelson her brother. His statement to Carsey was `that "Carl and Emma Nelson came out in the pasture, and he done it to her right there. He played with her about half an hour." He never used the word "intercourse," but said to me, as I have testified, that they came out in the pasture, and he done it to her right there.' Now, if there is a variance, it is between the statement alleged that Carl Nelson had intercourse with his sister, Emma, instead of the language that he came out in the pasture and `done it to her right there.' It seems this constitutes a variance."

In Rogers v. State, 30 Tex. App. 463, 17 S. W. 548, Judge White, speaking for the court, holds that where the indictment alleged "Marion Rogers had met Sarah Lee Rimmer in the nighttime in the bushes, and did then and there have carnal intercourse with her" is not supported by proof that defendant said: "He would meet Sarah Lee Rimmer there (meaning the well) at night and `dick' her, meaning that he would have carnal knowledge of her," and reversed the case because of this variance.

In the case of Hasley v. State, 57 Tex. Cr. R. 400, 123 S. W. 596, 136 Am. St. Rep. 986, Judge Ramsey, speaking for the court, holds: "Appellant in this case was convicted of slander in falsely imputing to the woman named in the indictment a want of chastity. The language attributed to him is thus stated in the indictment: `Did then and there unlawfully, falsely, and maliciously, and falsely and wantonly orally impute to ____, then and there a married female in this state, a want of chastity, in this, to wit: He, the said Tobe Hasley, did then and there in the presence and hearing of Dr. T. G. Fuller say that he, the said Tobe Hasley, had had carnal intercourse with the said ____ and that she, the said ____ had on diverse occasions met him, the said Tobe Hasley, at night at the back of the residence of her husband, meaning that she had met him for the purpose of having carnal intercourse with him, the said Tobe Hasley, and that he had had carnal intercourse with her.' The language proved by Dr. Fuller was, in substance, to the effect that `a person could have a fine time there, referring to the woman named.' Again, he says: `I asked him how he managed to see this lady, and he said that she would meet him at the back of the house. Back of the patch there is a place of woods.' This witness further made this statement: `He said that he had been having a time with her.' This witness, as other witnesses, was permitted to testify what they understood to be meant by the terms `having a good time' or `a time with her.' This testimony was objected to as being a variance in the language proven and that charged in the indictment. The language of the indictment is that appellant stated that he had had carnal intercourse with the...