From my conception of the facts and law of this case I think the court is in error in reversing and remanding it, and I am so thoroughly convinced that I am constrained to enter my dissent.
Notwithstanding the statement of the case in the opinion of the court, I think I can make the matter clearer by restating it from my standpoint, and which is unquestionably correct, from the record.
The gist of the allegation in the indictment is that the defendant Simer, "on or about December 15, 1907, in the presence and hearing of Jerry Christenson, said of and concerning Nona Maynard, in substance, that Cleveland McBride and Will Canterberry had knocked said Nona Maynard up and left the country, and that Oscar McBride was keeping them posted; that the meaning of this, and the meaning intended to be conveyed to Christenson, was that said Cleveland McBride and Will Canterberry had been having sexual intercourse with said Nona Maynard, and that one of them had impregnated her." The testimony of the said Jerry Christenson is literally as follows: "On December 12, 1907, at the residence of Valson Hodges, in Stephens County, Texas, 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. Ennis Simer, the defendant in this case, had gone with Nona Maynard before that time. Cleveland McBride and Will Canterberry had also been going with the Maynard girls, but at this time both of these boys had left the country. We were alone in the seed house at Mr. Hodges' when this conversation occurred. No one was present but defendant and myself. The exact language used by the defendant, as Iremember it, was: `Cleveland McBride and Will Canterberry have knocked the Maynard girls up and have left the country, and Oscar McBride is keeping them posted.' After this statement he did not say anything else about the matter. He did not mention the given names of either of the girls, but used the expression `the Maynard girls.' Mr. Maynard has two daughters, Nona and Maggie (Maggie Maynard is now Mrs. Dugan), and they were the only Maynard girls in the country. Will Canterberry and Cleveland McBride had been going with Nona and Maggie Maynard, and had not gone with any other Maynard girls in that vicinity; in fact, I never heard of any other Maynard girls. I am sure that there is no other girls by that name anywhere in or near the neighborhood where Ennis Simer or Nona and Maggie Maynard reside. Nona and Maggie Maynard are in attendance on the trial of this case, and are the same Maynard girls that the defendant referred to when he made the statement quoted by me."
The balance of the testimony of this witness shows that he was *Page 521 twenty years old; that he had known the defendant about two years, and had known Maggie and Nona Maynard about fifteen years; that he lived about one mile from where the Maynard girls lived and about four miles from where the defendant lived. Nona Maynard is about eighteen years old, an unmarried woman, and lives in Stephens County, where she has lived for the past fifteen years.
In cases of this character, under the statute under which this prosecution was had (Crim. Code, art. 750), all the authorities hold that it is only necessary to allege the substance of what was said, and also that it is only necessary to provesubstantially what is alleged and what was said. Frisby v. State, 26 Texas Crim. App., 180; Conlee v. State, 14 Texas Crim. App., 222; Riddle v. State, 30 Texas Crim. App., 425; Rogers v. State, 30 Texas Crim. App., 462; Berry v. State, 27 Texas Crim. App., 483; Humbard v. State, 21 Texas Crim. App., 200; Hasley v. State, 57 Tex.Crim. Rep.. Other cases might be cited to the same effect, but it is unnecessary.
In slander, charged to have been committed orally, it would be requiring too much to be compelled to allege and prove the exact language uttered, because however accurate the mind and retentive the memory of the witness, it is unreasonable to require him to reproduce the exact language which was uttered, or else fail in a conviction. Hence, all of the authorities hold that it is essential to allege substantially only, and to prove onlysubstantially the words which were uttered. It is not like libel or forgery, or written slander under said article, where the language is in writing, for in such cases it is not the least difficult to reproduce the exact written language or the writing itself, and necessarily there must be a difference, and was so contemplated and intended by the law where only words were uttered orally.
There are but two purposes, shown by all of the authorities, why the allegations and proof should be substantially the same in charges of oral slander. One of these is, that the defendant may have notice of what he is to meet on the trial; the other is, to enable him to successfully allege and prove former jeopardy in cases of a second or other prosecution.
Now let us compare the language alleged in the indictment with that proven on the trial. The testimony above quoted (and this was nowhere disputed in the record, but the other witnesses confirmed it), shows that the language uttered by the defendant was to Jerry Christenson. It gives the date, the place, and identifies the two girls, and excludes any and all others. It also shows that there was no other conversation about or pertaining to the matter had between the witness and the defendant at any other time or place about either or both of the Maynard girls. The indictment fixes about the same date, in the same county, and the conversation between the appellant and the said witness, and gives the precise language charged in the indictment, except that wherein the indictment uses the name "Nona Maynard" *Page 522 the language proved is "the Maynard girls," and the proof, as stated above, unquestionably fixes that Nona was one of these "Maynard girls." In the indictment it is, "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." In the proof it is, "Cleveland McBride and Will Canterberry have knocked the Maynard girls up and have left the country, and Oscar McBride is keeping them posted." As I see it, no reasonable mind could be misled by the slight variance between the name alleged and the names proven, and no mind could doubt that the "Maynard girls" proven included the name alleged, and that the "Maynard girls" proved included Nona Maynard. In my opinion there can not be a shadow of doubt but that the appellant could not have been misled by this slight variance, nor is there a shadow of doubt that he could successfully plead and maintain former jeopardy if prosecuted again with the exact language charged in the indictment corresponding with the exact language proven in this case. Therefore, when the sole objects of the allegation, corresponding with the proof substantially, if not literally, measures up to all of the requisites for the protection of the appellant, in my judgment it should be held that there was no fatal variance between the allegation and the proof.
It has been uniformly held by this court, and is the established law, that where an indictment charges the theft of three or more things — say horses, and particularly describes each horse, or thing — that there is no fatal variance when on the trial proof of the theft of only one of the articles or horses is established and there is no proof about the others. Alderson v. State, 2 Texas Crim. App., 10; Mansfield v. State, 17 Texas Crim. App., 468.
So it has been held, and is also well established, that where an indictment charges the defendant with an assault on two persons, there is no fatal variance when the proof shows the assault upon one only and says nothing about the other. Scott v. State, 46 Tex.Crim. Rep.. So where an indictment charges that the defendant killed two persons, and the proof is he killed one only, it is held to be no fatal variance. Nite v. State,41 Tex. Crim. 341.
Again, this court has recently held that where the indictment charges an attempt to poison two persons, there is no fatal variance when the proof shows the attempt to poison one only. Charlie Roberts, alias Browney, v. State, recently decided and not yet reported. Then I can not conceive, when such is the holding of this court, that when a defendant is charged by indictment with slandering one person, and the proof shows that he slandered that one and also another, there could possibly be any fatal variance. It is a poor rule that will not work both ways. In fact, the rule does work both ways. In 22 Ency. of Plead. Prac., in discussing the question of variance and the degree of conformity required between the allegations and the proof, it is laid down: "Proof of more than is alleged is not regarded *Page 523 as a breach of the rule that the pleading and the proof must correspond, provided such superabundant proof does not contradict or qualify what is alleged." 22 Ency. Plead. Prac., p. 539. This same work, in discussing libel and slander, says: "In general, it will be sufficient to prove the words substantially as charged. The old rule in slander, that the words must be proved precisely as laid in the declaration, is obsolete, and now the action will be sustained by proof that the defendant spoke words concerning the plaintiff, slanderous in their natural and obvious meaning, and the same in substance as those stated in the declaration; but this must be done or the action will fail." 13 Ency. Plead. Prac., p. 63.
Again, this same authority says: "So it is not material that more words are proved than are laid in the declaration if the additional words do not change the meaning nor do away with the charge. It is absolutely necessary, however, that the additional words do not, by context or connection, alter the sense of the words charged; if they do, this will be fatal to the action." 13 Ency. Plead. Prac., p. 65.
In fact, the decisions of this court have established the rule that proof of additional words than those charged constitute no fatal variance. Kelley v. State, 51 Tex.Crim. Rep.; Gipson v. State, 8 Texas Ct. Rep., 691; Conlee v. State, supra.
In the Gipson case, supra, the language charged to have been uttered by the appellant was that "he, Dock Gipson, had frigged and fucked her," giving the name of the female. The proof was that he said that "he and Will Bowers had," using the same words that were charged in the information. The court held there was no fatal variance in that matter.
In the Kelley case, supra, the language charged in the information was that "Etta Liggon is a whore, and I can prove it;" the language proven was, "Etta Liggon is a dirty whore, and I can prove it, and is the cause of my wife leaving me." The court held there was no fatal variance.
The court, in its opinion herein, I think, puts the wrong construction on the testimony. The construction of the court is that the proof of the language charged in the indictment is to the effect that both McBride and Canterberry had had sexual intercourse — not with Nona, the injured party, but that one of them had had intercourse with her, and the other one with the other Maynard girl, Maggie. In this, I think, the court is clearly wrong. The language itself charges that each of these persons, McBride and Canterberry, had had sexual intercourse with Nona — not that one of them had had such intercourse with Nona and the other one with Maggie. The innuendo then makes it clear, wherein it alleges that the language used and the meaning intended to be conveyed was that both of these persons, McBride and Canterberry, had been having sexual intercourse with the said Nona, and that one of them had impregnated her. Taken as a whole, I think it excludes the idea that only one of them had had *Page 524 intercourse with her, but charges expressly that both had, and the innuendo was that one or the other of them had impregnated her.
Re-stated again, I think it very clear that when the allegation in the indictment charges that the two persons had intercourse with Nona Maynard, and the proof shows that the statement was made about the "Maynard girls," which are Nona and Maggie, that there is no variance. In other words, the charge is that they had intercourse with one girl; the proof is that the words uttered were that they had intercourse with that girl and with another, too.
I am convinced that there is no fatal variance and dissent from the opinion of the court in reversing and remanding the case.