Humbard v. State

White, Presiding Judge. This is an appeal from a judgment of conviction for slander under Article 645 of the Penal Code, 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 disregárded.” (Conlee v. The State, 14 Texas Ct. 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, [209] 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 E. J. Huckaby is the sister of Eas 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. The State, 4 Texas Ct. 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. The State, 26 Texas, 113; Perry v. The State, 4 Texas Ct. App., 566; Murphy v. The State, 6 Texas Ct. App., 554; Loving v. The State, 9 Texas Ct. App., 471; Weaver v. The State, 13 Texas Ct. App., 191), and unless this is done, the proof will not only be held insufficient, but the variance between the allegations and the proof will be held to be fatal.” Opinion delivered April 22, 1886. As shown by bills of exceptions the defendant proposed to prove by a number of witnesses that for three years prior to the institution of this prosecution, the report was current in the neighborhood where the said witness and the parties involved in the slanderous imputation lived, that a criminal intimacy between the parties involved existed, and had existed for a long time anterior to the institution of this prosecution, and the evidence was held inadmissible by the court. This evidence was admissible upon the issue of the intent of the accused in uttering the alleged slander; that is, whether he did so maliciously, or wantonly, or having good reason. to believe it to be true. (McMahon v. The State, 13 Texas Ct. App., 220; Duke v. The State, 19 Texas Ct. App., 14.) For the errors discussed, the judgment is reversed and the cause remanded. Reversed and remanded.