The appeal is from a judgment of conviction for making and circulating a libel. Motions to quash and in arrest of judgment were made, in both of which the sufficiency of the indictment was called in question, “because said indictment does not set out the tenor of the instrument alleged to have been written and circulated by the defendant,” and “because it appears from said indictment that the grand jury only attempted to give the substance and meaning and such portions of the language of the instrument as from their information they were able to give, and the indictment fails toi assign any reason for not giving a literal copy of the instrument, or to state what the extent of the information of the: grand jury was on the subject.”
Omitting the formal portions, the allegations of the indict*194ment are that defendant “did then and there unlawfully, wilfully, corruptly, maliciously, make, write and circulate a certain false, scandalous, malicious and defamatory statement in writing to, of and concerning one James Jobe, said statement then and there affecting the reputation of said Jobe, and being then and there made, written and circulated with the malicious intent on the part of said Coulson to injure said James Jobe, and the natural consequence of which was to injure said Jobe. Said statement so made as aforesaid being then and there a libel, and being, in substance, words and figures, as follows, to wit.’* Here the instrument is set forth in quotation marks (which we omit on account of its obscenity), after which follows this allegation: “The grand jurors aforesaid upon their oaths do say that the foregoing is the language and substance and meaning of said false and malicious statement as near as they can give,” etc.
With reg-ard to some offenses, where the offense is predicated upon an instrument in writing, it is permissible, in criminal pleading, to set forth the substance and effect, or purpose, of the instrument, without declaring upon it by its tenor or in haze verba, as, for instance, in perjury (Gabrielsky v. The State, 13 Texas Ct. App., 436), and in swindling (Baker v. The State 14 Texas Ct. App., 337); but, as a general rule, whenever an instrument in writing enters into an offense as a part or basis thereof, or where its proper construction is material, the instrument itself, hcec verba, should be set out in the indictment. (White v. The State, 3 Texas Ct. App., 605.)
As was said in the case of The State v. Townsend (86 N. C., 675), “according to the current of authorities, beginning with the oldest and extending to the latest, and almost wholly unbroken, libel belongs to that class of cases in which it is held to be absolutely necessary to set out in the indictment the alleged libelous matter according to its tenor. (Rex v. Burr, 12 Mod., 218; Wood v. Brown, 6 Taunt., 618; 1 Russell, 252; 2 Bish. Crim. Proc., sec. 744; The State, v. Sweeney, 10 Sergt. & R., 173; The State, v. Wright, 1 Cush., 46; The State v. Brownlow, 7 Hump., 63; Whittaker v. Freeman, 1 Dev., 271.) The reason given for this is that the court may be able, from an exact knowledge of the contents of the publication, as seen in the record, to form its judgment thereon, and that the accused may, if he pleases, demur, and thus have the opinion of the court of a question of law
*195upon the sufficiency of the matter to constitute libel, and thereby avoid submitting it as a mixed question to the jury.”
In Brownlow v. The State (7 Humph., 62), the indictment, which was quite similar upon the point in question to the one before us, charged that the libel “contained amongst other things the following false, malicious and libelous matters and things according to the tenor and effect following, that is to say,” it was held that this averment professed to set forth the substance, and not the words of the libel, and therefore not* valid. “An indictment for a libel must profess on its face to set-forth an accurate copy of the alleged libel in words and figures. If it does not, it will be held insufficient on demurrer or in arrest of judgment. The indictment will not be valid if it professes to set forth the libel according to its substance or effect.” (See Archbold’s Crim. Pl. and Prac,, vol. 2, p. 1038 and note.) And in Commonwealth v. Wright, it was held that marks of quotation used in an indictment fof libel to distinguish the libelous matter are not sufficient to indicate that the words thus designated are the very words of the alleged libel. (1 Cush., 46.)
“An indictment which charges that the libel is as follows, and; then sets it forth verbatim, with sufficient innuendos, alleges the libel with sufficient certainty.” (Clay v. People, 86 Ill., 147.)' And in The State v. Smith, 7 Lea (Tenn.), 249, it was held that an indictment which charges the matter of the libel to be a letter set out in full in the indictment, “ which said libel is in sub-stance as follows, to wit,” is sufficient. The court says, in distinguishing that case from Brownlow’s case, supra: “While the words ‘ in substance’ are used, yet it clearly and distinctly appears that they do not limit, nor were they intended to limit, the statement of the entire libelous matter complained of to anything less than the entire publication. On the contrary, the entire publication is set out.”
We are clearly of opinion that the rule enunciated in the Brownlow case is the correct one in conformity with the weight of authority, and it is unnecessary for us to say whether the ruling in the Smith case is reconcilable with it or not upon the ground stated, viz., that the word “substance” does not characterize the allegation where the writing is set out verbatim. (2 Archbold’s Crim. Pl. and Prac., 8 ed., top p. 1033, and note.)
In the case before us the writing appears to have been set out.hcec verba, but the following averment, that “the foregoing isi the language and substance of and meaning of said false and/ *196malicious statements as near as they (the grand jurors) can-give,” manifests the fact that, to say the least of it, the grands jury have attempted the substance and meaning as near as they could, and are not certain that they have done so, much less that they have given the language literally.
The only exception to the rule that the libelous matter must be set forth Jicec verba is where the obscenity of the language would excuse its reproduction in the pleadings. And with regard to this exception Mr. Bishop says: “The avoiding of obscene allegations in the record, breeding corruption, is deemed an adequate necessity to excuse the setting out the words of an obscene libel. The indictment should give such a description of them as decency permits; then if it states the reason for omitting to recite them it will be sufficient.” (1 Bish. Crim. Proc., 3 ed., secs. 496, 497.)
We do not believe the reason stated for the exception a good one. If the matter is one necessary to be determined by the courts under the law, then the law which requires that it be brought before its tribunals recognizes no authority of modesty or sentimentality to interfere with the fixed rules it has prescribed for the proper prosecution of offenders. We are of opinion, for the reasons given, that the indictment in this case-was insufficient, and that" the motions to quash, and in arrest of judgment, were well taken and should have been sustained'.
There is another matter growing out of this record, and affecting the sufficiency of the indictment, on the motion in arrest, which it may be well to notice. It is made to appear that the libelous instrument is a private letter written to the prosecutor, Jobe, by appellant, and not shown by appellant to any one, and not intended by him to be seen by any one but Jobe.
In Smith v. The State, 32 Texas, 594, it is held that “the-writing of a letter and the deposit of it in a postoffice for transmission to the party addressed constitute a publication of it within the law of libel.” Mr. Bishop says: “One publishes a libel who sends it to a single individual.” (2 Bish.. Crim. Proc., 3 ed., sec. 800.) And this, we are of the opinion, is the law with us, provided the private letter or instrument be of such character as that, if made public, it would affect the reputation of the party about whom it was written. The question here is as to the sufficiency of this indictment to charge libel, based upon a. private letter sent to a private individual.
*197There is a distinction between libel at common law and libel under our penal code. At common law libel was punishable solely on account of its tendency to provoke a breach of the peace (1 Bish. Crim. Law, 7 ed., sec. 591), and, where common law prevails, “the State takes notice of a libel against a private individual, where the language is mere defamation of himself only, because it tends to a breach of the peace. * ® * If the libel is contained in a letter sent to the person libeled only, an -averment (in the indictment) is necessary, because the law does not presume that the same temptation to violence will follow as in the case of public abuse, and it therefore requires the tendency and intent to be proved, and, to be made the subject of proof,' they may first be averred.” (The State v. Henick, 3 Crim. Law Mag., 174; Rex v. Topham, 4 Term R., 128.) Under our Penal ¿Code, libel is punished on account of its tendency to injure the reputation of a person (Penal Code, Arts. 616 to 644, inclusive),: and such being the case, if this intent is averred, the indictment! is sufficient without the additional averment of the tendency' and intent to create a breach of the peace.
Because the court erred in overruling the motions to quash the indictment and arrest the judgment, and because the indict®’ ment is insufficient, the judgment is reversed and the cause dis= missed
Reversed and dismissed*
-Opinion delivered May 14, 1884.