Appellant was convicted of slander, and his punishment assessed at $150. There are various grounds of error assigned, but we will only consider the most material.
1. The court did not err in overruling the motion to quash the information. It certainly charged the offense of slander, and the meaning of the language used is sufficiently stated by innuendo.
2. There is no error in the general charge of the court. It is sufficiently comprehensive, and, with the special charges requested and given, presented the case to the jury as favorably to appellant as he could ask.
3. The appellant complains that the court erred in permitting the county attorney to ask the witness what appellant meant by saying that "Ed Henry was monkeying with July Chambliess," and in permitting the witness to answer that "said Henry was having carnal knowledge of her," because the question called for the opinion of the witness, who should state only what was said, and not what was meant, that being a question for the jury. The complaint alleges that appellant used the language, and, by innuendo, stated it meant "Henry was having carnal knowledge of her, the said July Chambliess." Can the matter alleged by innuendo be proven? It is held in this State, that the truth of an innuendo may be proven. In Riddle's case, 30 Texas Criminal Appeals, 426, Judge White says, that having alleged *Page 3 the slanderous words with an innuendo which would go to establish an offense, if proved, it was necessary to prove the innuendo as substantially as the slanderous words themselves. See also Berry's case, 27 Texas Crim. App., 484; 2 Whart. Crim. Law, 8 ed., sec. 1661. It is true, Mr. Bishop says an innuendo does not admit of being sustained by proof. Bish. Crim. Proc., 793; Townsh. Sland. and L., secs. 335, 342. This is where, under the rules of criminal pleading, the circumstances necessary to explain the meaning of slanderous words are stated in the indictment by way of inducement, and the only office of the innuendo is to refer the libelous words to the facts so set forth. 13 Am. and Eng. Encyc. of Law, p. 501, sec. 4; Townsh. Sland. and L., secs. 129, 308, and notes 1, 2; Id., secs. 335-337. With us, the office of the innuendo is enlarged to explain the meaning of the language spoken, and we dispense with the inducement or colloquium, and the innuendo may be proven. Now, where the words are obviously defamatory, or are clear and unambiguous, whether defamatory or not, the court and jury, and not the witnesses, construe the words; and a witness can not be asked how he understood the words, nor what impression was produced on his mind on hearing them, and the words are to be construed in their ordinary and usual sense. When, on the other hand, the language is ambiguous as to its import or signification, and the words used are not ordinary, but are local, technical, or slang terms, evidence is admissible to explain their meaning, and the testimony of hearers is admissible as to how they understood the words. The question is in what sense the hearer understood the words, for slander and damage consist not in the intent of the speaker, but in the apprehension of the hearers. Townsh. Sland. and L., secs. 127, 384; Dorland v. Patterson, 23 Wend., 424; Demarest v. Haring, 6 Cow., 76; Smart v. Blanchard, 42 N.H. 137; Barton v. Holmes, 16 Iowa 252; Smith v. Miles, 15 Vt. 245; 13 Am. and Eng. Encyc. of Law, 385. But such testimony, which is admitted to show what meaning hearers of common understanding would and did ascribe to the words, is not conclusive on the jury. Nelson v. Borchenius, 52 Ill. 236; Vanderlip v. Roe, 23 Pa. St., 82; Wimer v. Allbaugh (Iowa), 42 N.W. Rep., 587. Hence we do not think the court erred in permitting the questions complained of to be asked.
The other errors assigned are not regarded as material, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.
ON MOTION FOR REHEARING.