I do not agree to the views expressed by a majority of the court, and herewith express my reasons for dissent. Appellant was convicted of libel, and his punishment assessed at a fine of $1500, and he prosecutes this appeal. Appellant made a motion to quash the complaint and information on various grounds, but we will only consider those which relate to the first count, inasmuch as the conviction was had on said count. The grounds set out are as follows: "(1) The complaint and information on their face allege the libelous instrument to be a written manuscript, and charge that the same was circulated by depositing it in the postoffice at Georgetown, *Page 672 Texas, without alleging that said postoffice was then and there a public place, as required by law; (2) because said count fails to specially allege that said libelous instrument charged an act or omission which, though not a penal offense, was then and there disgraceful to the prosecutrix as a member of society, and the natural consequence of which was to bring her into contempt among honorable persons, or without specially alleging either of the statutory elements of libel, as required by article 727, Penal Code."
An examination of said information discloses that it does allege that appellant "did make, write, and circulate by depositing in the United States postoffice at Georgetown, Texas, there situated, a malicious statement and defamatory libel, affecting the reputation of said Miss May Fan Richey, according to the following tenor," etc.; then setting out the instrument in hæc verba. Our statute is aimed at the maker, as well as the publisher, of a libel. However, the bare making of a libel, by writing or otherwise, with no intent to publish it, would not constitute the maker guilty of an offense, according to the authorities on the subject. We will accordingly discuss the question from the standpoint of a sufficient allegation as to circulation or publication. Now, it is alleged that the manuscript in question was circulated — that is, published — by depositing same in the United States postoffice at Georgetown; that is, the pleader in this information has attempted to set out the alleged manuscript was published. It will be observed, it does not state that said manuscript was done up in a package in the form of a letter, and addressed to Miss May Fan Richey at her postoffice, naming it, postage prepaid, but merely that it was deposited in the postoffice. The pertinency of this objection becomes more obvious when the State came subsequently to introduce testimony as to the delivery of said manuscript, and offered proof of the envelope, with its address, and that Tom Richey, her brother, procured said letter from the postoffice, and delivered it to his sister. All this testimony was objected to on the ground that there was no sufficient allegation in the information. The court in admitting said testimony evidently assumed that the allegation "that said manuscript was deposited in the postoffice" was tantamount to saying that same was properly addressed and deposited in the United States mail. The allegation we do not believe is sufficiently accurate and certain to have authorized said proof. Moreover, some of the authorities hold, and we think with good reason, that a letter such as this is only published when it reaches the sendee, and the address of the sendee should be alleged so as to show venue. We hold that the allegation here with reference to the publication is defective. State v. Barnes, 32 Me. 530; 2 Whart. Crim. Law, 1620; Whart. Crim. Ev., sec. 113.
Appellant also insists that the information should have been quashed because, even if it had been sufficiently alleged that said manuscript was properly inclosed in an envelope, and addressed to Miss May Fan Richey, at her proper postoffice, postage prepaid, and *Page 673 then deposited in the United States mail, that same would have alleged no publication, because it was a private letter, not sent to a third person, but to the person alleged to be libeled. I do not agree to this contention, and it is not a new one in this State. The question was before the court in Coulson v. State, 16 Texas Criminal Appeals, 189, and it was there held that a private letter written by appellant to the prosecutor, and not shown by appellant to anyone, and not intended by him to be seen by anyone but the prosecutor, was a sufficient publication. The court, after reviewing the authorities, say "that if one publishes a letter libeling an individual, and sends it to him, he is guilty of this offense, provided the letter be of such character as that, if made public, it would affect the reputation of the party about whom it was written." And to the same effect, see note to Rex v. Johnson, 7 East, 65, reported in 2 Lead. Cr. Cas., p. 432; Rex v. Burdett, 4 Barn. Ald., p. 143; Reg. v. Brooke, 7 Cox, C.C., 251; State v. Avery, 7 Conn. 269; 2 Bish. Crim. Proc., p. 784, sec. 5. So it occurs to me, if the information had sufficiently alleged the matter of publication through the United States mail, it would have been sufficient.
Appellant also objects to the information on the ground that there was no allegation charging that by the use of said language appellant intended to convey the idea that Miss May Fan Richey was guilty of a penal offense then and there disgraceful to her as a member of society, and the natural consequence of which was to bring her into contempt among honorable persons (this being the only one of the five grounds in article 727, Penal Code, under which this prosecution would lie). This question has recently been before this court in several cases. See McKie v. State, 37 Tex.Crim. Rep.; Squires v. State, 39 Tex. Crim. 97; Nordhaus v. State (Texas Crim. App.), 40 S.W. Rep., 804; Byrd v. State, 38 Tex.Crim. Rep.; Jones v. State,38 Tex. Crim. 364. In the Nordhaus case, supra, this matter was thoroughly discussed by the writer, and, speaking for the court, it was there held that the information, after setting out the alleged libelous matter, should further state that it was intended thereby to convey one or more of the five ideas set out in article 727, Penal Code, as that defendant intended to convey the idea that the party was guilty of some penal offense. And this view appears to have been followed in all of the cases above cited, except the Jones case. In that case we held that it was not necessary to allege either of said five grounds; that it is only required to set out the libelous matter, and allege that the same affected the reputation of the person libeled; and that the court would construe the libelous matter, and apply it to either one or more of the five grounds set out in article 727, Penal Code. It does not appear that any reference was made in said case to the former decisions on the subject. The writer believes it the safer and better practice to follow the rule laid down in Nordhaus v. State, supra. When this is done, the *Page 674 accused party will know exactly of what offense he is charged, and this is the object of all good pleading.
Appellant objected to the introduction of the letter used in evidence, on the ground that it was at variance from that set out in the information, and was neither substantially nor literally the same written instrument or letter alleged or set forth in the information. He claims that said variance consists in what are termed "innuendoes;" that is, that the original letter offered in evidence contained no innuendoes, while the letter set out in the information did contain innuendoes. I do not think this objection to the information is tenable. It may have been better for the pleader to have placed said innuendoes in parentheses, or to have shown them to be innuendoes by more precise and definite allegation or arrangement. Still, if the innuendoes were meaningless, they could be rejected as surplusage. 1 Bish. Crim. Proc., sec. 480, subdiv. 4. If the allegations in the letter itself, by a plain reading, affected the reputation of Miss Richey, then the same would be sufficient without any innuendoes. It occurs to me there is no question that by this language, found in said letter, to wit: "Two weeks ago yesterday I happened to be down on the fair grounds, and saw you and a certain young man — Well, you know what occurred. I happened to be close by, and saw the whole performance," — was the use of language which affected the reputation of Miss Richey, and conveyed the idea that she had been guilty of some act or omission which, though not a penal offense, was disgraceful to her as a member of society, and the natural consequence of which was to bring her into contempt among honorable persons. Still, to make this plain, and give it point, in my opinion the pleader should have used in that connection, following the sentence quoted, an innuendo; that is, "meaning thereby that he, the said Jeff D. Mankins, had seen Miss May Fan Richey in the act of carnal intercourse with a certain young man." The other expressions found in the letter are more in the nature of threats and menaces, emphasizing what had gone before, and made evidently for the purpose of inducing her to comply with his desire to copulate with her. It is not necessary here to express an opinion as to whether of themselves they are libelous.
I believe before the letter was introduced in evidence it should have been more definitely identified by the witnesses as the letter received by Tom Richey from the mail and delivered by him to the prosecutrix.
The following charge was also excepted to: "You are further instructed that in this case you are the judges, not only of the facts proven, but of the law given you by the court." This is not the language of our statute or Constitution on the subject. We quote that language as follows: "In all indictments for libel, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases." Bill of Rights, art. 1, sec. 8. So it would seem that the charge given was more latitudinous than the *Page 675 Constitution authorized. It, in effect, made the jury superior to the court, and authorized them to disregard the law as given them, if they saw fit. I am not prepared to say but that this charge was calculated to confuse and mislead the jury as to their functions.
Appellant insists the court erred in refusing to give his special instruction on the subject of proof of handwriting by comparison, to the effect that such evidence was not sufficient to authorize the establishment and proof of handwriting; that this charge was especially required, in view of the fact that appellant filed a plea of non est factum, under article 794, Code of Criminal Procedure. If this proof of his handwriting by comparison had been the only testimony tending to show that appellant was the author and publisher of said libelous statement, the charge in question should not only have been given, but the jury should have been instructed to return a verdict of not guilty. But, in addition to the proof of handwriting by comparison, the State also offered other testimony tending to show that appellant was the author of said libel. The libel in question was an accusation against the prosecutrix that she was guilty of an act of carnal intercourse with a certain party, and contained a proposition that he would keep mum in regard to said transaction if she would agree to have carnal intercourse with him at a designated time and place; otherwise, he would traduce her reputation. The letter was not replied to, but the young lady exhibited the same to her brother on the day of its receipt, and he arranged with an officer to lie in wait at the place appointed by the writer of the letter, in order to detect and arrest the guilty party. Appellant appeared at the appointed time and place, and under circumstances which tended strongly to show he was the writer of the letter in question. This evidence was certainly cumulative of the testimony in regard to handwriting by comparison, and I think that the charge given on circumstantial evidence was appropriate and all that was required, and the court did not err in refusing to give the special requested instruction.
It is not necessary to discuss other assignments; but for the errors discussed I believe the judgment should be reversed, and the cause dismissed, to the end that a new information should be presented.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.] *Page 676