In his motion for rehearing appellant reiterates the various contentions made on the original hearing. In nearly fifty bills of exceptions and a record containing many pages of typewritten matter, the case is presented in a manner prolix to a degree that precludes the propriety and expediency of discussing in detail all the points made.
The offense of libel has been defined and denounced by statute from the beginning of our judicial history. See Paschal's Digest of the Laws of Texas, Vol. 1, p. 455, Art. 2276. In Art. 2283 it is said: "But no verbal defamation comes within the meaning of the act." The statute on criminal libel has undergone modification, and the present is embraced in Title 16, Chapter 1, P. C. 1925. The phases of the statute which seem applicable to the present inquiry are subdivisions 1 and 2 of Art. 1275, which read as follows:
"The written, printed or published statement, to come within the definition of libel, must convey the idea either:
"That the person to whom it refers has been guilty of some penal offense; or,
"That he has been guilty of some act or omission which, though not a penal offense, is disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons." *Page 234
And Sec. 2, Art. 1290, P. C. 1925, from which we quote:
"In the following cases the truth of any statement charged as libel may be shown in justification of the defendant:
"Where it is stated in the libel that a person has been guilty of some penal offense, and the time, place and nature of the offense is specified in the publication."
In 1879 the offense of slander was first defined in the statute. See R. S. 1879, Art. 645; Posey's Texas Criminal Digest of Laws, Secs. 9914 and 9915, and that offense is embraced in Arts. 1293 and 1294, P. C. 1925, which read thus:
"If any person shall, orally or otherwise, falsely and maliciously, or falsely and wantonly, impute to any female in this state, married or unmarried, a want of chastity, he shall be deemed guilty of slander and shall be fined not less than one hundred nor more than one thousand dollars, and may be in addition thereto imprisoned in jail not exceeding one year."
"It shall not be necessary for the state to show that such imputation was false, but the defendant may in justification show the truth of the imputation, and the general reputation for chastity of the female alleged to have been slandered may be inquired into."
The offense of slander has found its way into the criminal law in many of the states, including ours. Ruling Case Law, Vol. 17, p. 461, Sec. 223.
The averments in the indictment are set out in the original opinion, and by innuendo the charge is "That the said A. Reilly Copeland meant that the said Miss Adelaide Hague had committed adultery with Jim Tinsley." The alleged defamatory matter is in writing.
Appellant advances the contention that slander, as defined in our statute, may be committed by either oral or written declarations imputing to a female a want of chastity, and that the language used, namely: "If any person shall orally or otherwise," etc., apparently supports the view mentioned. In Lindsey's case, 18 Tex.Crim. App. 280, the prosecution was founded upon an affidavit. The opinion apparently gives sanction to the position that the offense could be committed by the use of defamatory language in writing. The case was reversed, however, because the particular writing was privileged. The criminal forms prepared by Judge Willson, who was long a distinguished member of this court, specifically recognize the efficacy of the statute as supporting a prosecution for slander *Page 235 based upon defamatory language embraced in a written document. See Willson's Criminal Forms, No. 526, 4th Ed., annotated by J. W. Moffett, in 1912.
In Lagrone's case, 12 Tex.Crim. App. 426, discussing an indictment for slander, the following language was used:
"The offense created by Art. 645 of the Penal Code is of the same nature as the offense of libel, and of the common law offense of oral slander, and also of the common law offense of oral blasphemy. In all of these offenses it is essential to set forth in the indictment the writing or language which constitutes the libel, slander or blasphemy. (2 Bish. Cr. Proc. 783, 787, 807, 123; 1 Bish. Cr. Proc. 530; 2 Whart. Cr. L. 1656; 2 Whart. Proc. 939; Id. 963.) The State of Alabama has a statute creating the offense of defamation, which is similar to our statute of slander. (Code of Ala., Art. 4107.) A form for an indictment under that statute is prescribed in the Code (Form No. 56), which requires that the words spoken, written, etc., shall be substantially set out. (See Haley v. State,63 Ala. 83.)
"Upon principle and upon authority we conclude that in charging the offense created by Art. 645, Penal Code, the indictment or information is bad unless it sets out, at least substantially, the language or writing constituting theimputation of a want of chastity.
Adverting to the principles of law and statutory enactments which control in determining which of two criminal statutes which apparently denounce the same act, it is the rule that preference is to be given to that statute which points out aparticular act and denounces it as a crime, over that, the language which, would embrace the same act in general terms.
In Art. 5, P. C. 1925, it is declared:
"Each general provision shall be controlled by a special provision on the same subject, if there be a conflict."
It is plausible that in enacting Art. 1293 P. C., establishing the offense of slander and defining that offense as falsely and maliciously imputing, by oral declaration or otherwise, a want of chastity to a female, the effect of the legislation was to bring it within the purview of the statute last quoted, so that a prosecution for such imputation would fall under the provisions of Arts. 1293 and 1294, supra, defining slander, and not under Art. 1275, defining libel. Another construction would have the effect to vest in the prosecuting officers power by charging one whose offense wasslander, with libel, thereby arbitrarily destroying the purpose of the lawmakers to permit the accused to defeat the prosecution by proof of the truth of the alleged *Page 236 slanderous language. There is a substantial difference in the two offenses, not only in the elemental facts and in the defenses named in the statute, but in the penalty also. The penalty for libel is a fine or imprisonment, while that prescribed for slander is fine and imprisonment. If the appellant's contention that the prosecution in the present instance is controlled by Arts. 1293 and 1294 rather than by the libel law embraced in Title 16, Chapter 1, then the court was in error in instructing the jury touching the penalty to be assessed in the event of a conviction. The instruction authorized the jury to fix a penalty of not less than one hundred nor more than two thousand dollars or by imprisonment in the county jail not exceeding two years, which materially differs, as above stated, from the penalty which the law authorizes for the offense of slander. Exceptions were duly reserved to the action of the court with reference to the instruction touching the penalty.
The charge of the court appears to be framed upon the theory that the alleged libelous matter charged against the alleged injured party was a penal offense. In submitting the case to the jury the court told them, after some preliminary statements, that if the letter in question, in its natural consequences, affected the reputation of the party named by conveying the idea that she was guilty of the penal offense of adultery, a conviction should result. He also said:
"You are further charged that adultery is a penal offense against the laws of the state."
These charges were made the subject of exception and are criticized on many grounds upon this appeal, notably upon the. ground that in the averments of the indictment and in the letter itself there are lacking the elements of the penal offense of adultery, in many particulars, among others, the absence of averment that one of the parties were married. The indictment is deemed sufficient in its averments to impute to the woman mentioned a want of chastity. It does not, of course, embrace the elements of the statutory offense of adultery. The instruction was error.
Appellant complains of the refusal of the court to hear evidence touching the truth of the matters embraced in the language used and as charged in the indictment. Upon the original hearing we were impressed with the view that the bill of exceptions upon this subject was so informal as to preclude its consideration. Upon a more mature reflection, however, we are of the opinion that while it is informal in some respects, it is such as to demand consideration. From the bill it appears that the *Page 237 witness, Guy McNamara, while upon the stand in behalf of the appellant, was asked if while chief of police of the City of Waco he was called to the home of Mrs. Hutcherson, and upon his giving an affirmative reply, he was asked to tell the jury just who that call came from and to relate the entire transaction in his own way. Objection was addressed to this question, and the court retired the jury and heard argument upon the matter. After hearing the argument, the court announced that he would not admit the testimony. Appellant at the time made known to the court that the proffered testimony was to prove the truth of the matters contained in the alleged libelous statement, and reserved an exception to the court's ruling. The court approved the bill without qualification. In the main, the bill is in narrative form and makes it perfectly plain that the appellant, with the witness duly sworn upon the stand, offered to prove and could have proved the truth of the statements in the alleged slanderous matter, and the fact that the court and counsel for the state regarded the law as inhibiting such proof. Ordinarily a bill of exceptions complaining of the exclusion of evidence should set out the evidence, at least in substance or in sufficient detail to enable the reviewing court to understand the ruling and to appraise the merits of the complaint. The court in the present instance was specifically informed that the testimony of the witness would be to the effect that the things stated in the writing were true — that is, that it was the truth that the persons mentioned in the indictment had engaged in illicit relations. Construed in the light of the averments in the indictment, the conclusion is unescapable that the appellant's claim to be able to prove the truth of the alleged slanderous matter demanded the privilege to do so given him under the statute above mentioned.
Inasmuch as the court, in his instructions to the jury, treated the prosecution as coming within the purview of that part of Art. 1275 which declares as libelous a statement conveying the idea that the accused was guilty of a penal offense, he should have given the appellant the benefit of the provisions of Art. 1290, supra, which declares that where it is stated in the libel that a person has been guilty of somepenal offense, and the time, place and nature of the offense is specified, the truth of the matter contained in the alleged libelous statement may be shown in justification of the accused.
The opinion is expressed that the offense charged is "slander," and appellant should have been tried in accord with the statute upon that subject as declared in Arts. 1293 and 1294, which *Page 238 are quoted above. However, if the prosecution may be maintained under Art. 1275, supra, denouncing the offense of libel, the conduct of the trial in which the jury was informed that the indictment charged a penal offense, renders it improper for the court to refuse to receive evidence of the truth of the alleged libelous statement.
For the reasons pointed out, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING BY STATE.