An information charged the defendant as follows: That “one John Conlee did orally, falsely and maliciously impute to Miss Florence Bullock a want of chastity, in this, that the said John Conlee did then and there orally, falsely and maliciously say to one Gus Pitts, that he, the said John Conlee, had had carnal knowledge of her, the said Miss Florence Bullock, and that she, the said Miss Florence Bullock, was of bad character.”
To support this charge the State proved by Gus Pitts the language used by defendant, which was as follows: “She would have been a nice girl if he (defendant) had not done what he had done to her; and if I (meaning witness) did not believe it,' meet him at the gin house that night and he would prove it.” The witness stated that the above language was the only stateT ment made or words used by defendant to him about Miss Florence Bullock; that defendant did not state to him that he, de*224fendant, had had carnal knowledge of Miss Bullock. Defendant objected to this evidence because it was not in substance the slander charged in the information, and his objections being overruled he excepted, and insists that the conviction should be set aside because the evidence does not prove the charge as alleged in the information.
It has been held by this court that in a prosecution for this offense the information or indictment must set forth substantially the language, or whatever else, which constitutes the imputation of a want of chastity. (Lagrone v. The State, 12 Texas Ct. App., 426; Melton v. The State, Id., 552.) It being necessary, therefore, 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 allegation. This is an elementary rule governing in criminal as well as in civil actions, and cannot with safety and justice be disregarded. It is unnecessary to cite authority in support of such ancient and universally recognized principles as these.
In the case before us we are compelled, reluctantly, to hold that the language of defendant as proved was not even substantially the language charged in the information. It was entirely different, containing none of the essential, important or material words alleged to have been uttered by the defendant. On the contrary, it was proved that the alleged words were not uttered by the defendant. However basely the defendant may have slandered the young lady, he did not slander.her in the language set out in the information. We must reverse the judgment and remand the cause, for the reason that there is a fatal variance between the slander as alleged and the language proved. This will not necessarily defeat the ends of justice, because the alleged crime is not yet barred, and if guilty of this vile offense the defendant may yet be prosecuted and properly punished under another information alleging the slander substantially in accordance with the evidence.
Reversed and remanded.
Opinion delivered May 23, 1883.