Boone v. Herald News Co.

FLY, Associate Justice. This is a suit for damages against the Herald Hews Company, a private corporation, Hughes D. Slater, Henry L. Capell, and James A. Smith, alleged to have accrued by the publication of a libelous article in a newspaper known as the El Paso Daily Herald. A trial by jury resulted in a verdict for appellees. The suit was based upon the following article published in the Daily Herald: “Wants His Liberty—Prisoner at the County Jail Wants to Get Out.— An effort will be made this afternoon to effect the release of Arcario Alva, whom it is alleged had been confined in the county jail since September 18th without any commitment or other legal papers authorizing his imprisonment. Alva was sent in from the smelter by Justice Downs. A constable brought him to jail and asked that he be held for trial. Since that 'he has been a prisoner. .The boy’s mother, it is said, came here a week or so ago from Chihuahua, expecting to find her son at work and at liberty. She found him in jail, though no one seemed to know why he was there. She appealed to friends, and they will endeavor to get him out.” [547] The statements by innuendo were made to apply to appellant, who was sheriff and jailer of El Paso County, and it was set out that they were libelous per se in that they charged appellant with the crime of false imprisonment. The court instructed the jury that the publication was libelous per se. It appears from the facts that appellant was sheriff of El Paso County, and had no regular jailer, but it was further in proof that the jail was actually in charge of guards and that one of them received the prisoner spoken of in the publication, and made the entries, as to how he came to be imprisoned, in the register provided for that purpose. The libelous article stated that the prisoner was sent to the jail by a justice of the peace in charge of a constable. We are of the opinion that the article was correctly construed by the court to be libelous per se. If the charges in the published article were true, the person who unlawfully arrested and detained the prisoner was guilty of false imprisonment, which under the penal statutes of Texas is punishable by fine and imprisonment, and rendered appellant subject to removal from office, and the publication of such a charge is libelous, and the law will presume that it injured the reputation of the party against whom it was directed. Knapp v. Campbell (Texas Civ. App.), 36 S. W. Rep., 765; Belo v. Fuller, 84 Texas, 451. Cotulla v. Kerr, 74 Texas, 89. Although the publication was libelous, the burden rested upon appellant to establish that he was meant as the object of the libel, and it was a question of fact to be determined by the jury, as to whether the libel was aimed at him. Newell on Sian, and Lib., p. 767. The jury was justified in finding that the publication was not aimed at the sheriff. The second assignment of error is as follows: “The court erred in not giving to the jury special charge number 5 asked by the plaintiff, which was refused,” followed by a copy of the charge. The assignment is not a proposition in itself, and is not followed by any proposition pointing out the error of which complaint is made, and under the rules must be considered as waived. Railway v. Cole, 8 Texas Civ. App., 635; Railway v. Higgins, 22 Texas Civ. App., 430; Cooper v. Hiner, 91 Texas, 658. The third, fourth, fifth, and sixth assignments- of error are subject to the same objections that apply to the second assignment. The judgment is affirmed. Affirmed.