Appellant was convicted of libel, and his punishment assessed at a fine of $500; hence this appeal.
Appellant made a motion to quash the information, on the ground that the language of the letter or circular alleged to be libelous, and the innuendoes and statements relative thereto set forth in said information, do not show that the accused was guilty of such dishonest or disgraceful conduct as would constitute a libel under the penal laws of this State, and for the further reason that the information does not show that L.J. Walker was a candidate for any office, or that any election was then pending in Clay County, nor when any election would take place, nor that the principles of the Third or Populist party were such as to make an individual dishonest or direspectable in the county, nor that there was any difference between the principles of the Democratic and Populist parties, nor that defendant had any knowledge of said facts. In order to present the matter clearly, we insert the charging part of the information, which is in two counts: That appellant "did without lawful authority, and with intent to injure the reputation of L.J. Walker, unlawfully, willfully, and maliciously make, publish, and circulate a certain written and printed statement purporting to be the act of another person, to wit, the act of L.J. Walker, of and concerning the said L.J. Walker, which said written and printed statement is to the tenor following, to wit: '(Confidential.) Henrietta, Texas, 1894. To the People's Party Club, Texas: I send you this circular letter to inform you that I am in sympathy with your party, and believe in your platform and the principles enunciated therein. I expected your party, at its convention held, to ratify my nomination as county clerk of Clay County. In this I was disappointed. Should the voters of your club think it advisable to aid me and give me your support at the coming November election, I will *Page 103 take it as a favor, and appreciate the same. Should you support me by your votes, I will promise to affiliate and advocate the principles of your party two years hence, should it be successful at the coming election in November. Should the People's party fail at the coining November election, I believe the American Protective Association party will be the coming party of the future. I inclose you the platform of its principles, and you will please have the same read before your club. Yours respectfully, L.J. Walker. N. B. Please do not show this circular letter to any Cleveland, Clark, Goldbug Democrat, or any Hogg Silverite Democrat, as I have no faith in the principles advocated by either of them. Respectively, L.J. Walker.' And, at the time said written and printed statement was made, published, and circulated as aforesaid, the said L.J. Walker was a candidate for the office of county clerk of Clay County, Texas, and was then and there running for said office of county clerk of Clay County, Texas, as a Democrat, and was running for said office upon the Democrat ticket, and was then and there the nominee of the Democratic party of Clay County, Texas, for said office of county clerk of Clay County, Texas, and that said written and printed statement above set out is and was a libelous and malicious statement, and conveyed the idea that the said L.J. Walker was a candidate for the office of county clerk of Clay County, Texas, and that he, the said L.J. Walker, was and is dishonest, treacherous, and hypocritical in his political professions, and is and was therefore unworthy of said office of county clerk of Clay County, Texas; and said libelous and malicious statement conveyed the idea that the said L.J. Walker had been guilty of an act which, though not a penal offense, is and was disgraceful to him as a member of society, and the natural consequence of which act is and would have been to bring him into contempt among honorable persons. And, by way of second count herein, comes W.T. Allen, county attorney in and for Clay County, State of Texas, and presents in and to the County Court of said county that heretofore, to wit, on the 25th day of August, A.D. 1894, in said county of Clay and State of Texas, he, the said L.J. Walker, was a candidate for and running on the Democratic ticket for the office of county clerk of Clay County, Texas, and that he was running as a Democrat; that he was then and there a Democrat, and was not in sympathy with, and was not a believer in, many of the leading principles and doctrines of the so-called party 'People party,' otherwise known as the 'Third party,' which said last-named party was then and there opposing the nominees of the Democratic party of said Clay County, and was seeking to defeat their election to the various offices for which the candidates of the said Democratic party were running, and was specially seeking to defeat and were opposed to the election of him, the said L.J. Walker; that the said L.J. Walker was not then and there, and never had been, in sympathy with the American Protective Association, nor with its aims and purposes; that the said Walker was then and there a nominee of the Democratic party in said Clay County for the office of county clerk. That on, to wit, the last-named date, one W.A. *Page 104 Squires, in said Clay County, Texas, without lawful authority, and with the intent to injure the reputation of the said L.J. Walker, and for the purpose of placing him in a false light before the people and the voters of Clay County, Texas, and for the purpose of defeating his election to the office for which he was then and there running as a Democrat, did, unlawfully, willfully, and maliciously make, publish, and circulate among the voters of Clay County, Texas, a certain written and printed statement, purporting to be the act of another person, to wit, the act of the said L.J. Walker, of and concerning the said L.J. Walker, which said written and printed statement is to the tenor as follows, to wit [here is copied the instrument contained in the first count, supra]; that the said W.A. Squires, for the purpose of making said written and printed statement appear to be the act of the said L.J. Walker, unlawfully, wrongfully, maliciously, and without lawful authority, did then and there cause the name of him, the said L.J. Walker, to be affixed to said circular, whereby the statements therein contained were made to appear as the act, declaration, and statements of the said L.J. Walker; that, in truth and in fact, said circular was not executed by him, the said L.J. Walker; that he never authorized the execution of the same; and that the same was not his act or deed, and was not made, printed, or circulated by or with his authority or consent, and the same did not contain his political belief and convictions; that said statement was libelous and malicious, and was made, published, and circulated by the said W.A. Squires for the purpose and with the intent of defeating him, the said L.J. Walker, in the race for county clerk, as aforesaid; that, at the time said W.A. Squires made, published, and circulated said libelous and malicious statement, the said L.J. Walker was a bona fide Democrat, and was not in sympathy with the so-called 'People's party,' and did not believe in their platform, nor in many of the leading principles therein enunciated — all of which the said W.A. Squires then and there well knew; and that, with full knowledge of all or said facts, the said W.A. Squires unlawfully made and caused to be made, and circulated and caused to circulate, said libelous and malicious statement, for the purpose of injuring the reputation of him, the said L.J. Walker, and thereby causing him to be defeated for the office of county clerk, as aforesaid, at election which was thereafter to be held on the 6th day of November, 1894; that said written and printed statement as above set out was and is libelous, and sought to convey, and did convey, the idea that the said L.J. Walker, while he was a candidate for said office of county clerk on the Democratic ticket, and while he was running as a Democrat, that in truth and in fact he was not a Democrat, but that he sympathized with, and was a believer in, the principles and platform of the so-called 'People's party,' and with the principles advocated by the American Protective Association; and that he was dishonest, treacherous, and hypocritical in his political profession; and that he was therefore unworthy of the confidence and support of the voters of Clay County for said office, and was therefore unworthy of said office. And *Page 105 said circular further sought to convey, and did convey, the idea that the said L.J. Walker was thus guilty of an act which, though not a penal offense, is and was disgraceful to him as a member of society, and the natural consequence of which act is and would have been to bring him into contempt among honorable persons, all of which the said W.A. Squires did on the day and date aforesaid, contrary to the form and statute in such cases made and provided, and against the peace and dignity of the State."
At common law, in a civil action, complaint for libel contained the following essential elements (see Townshend on Slander and Libel, sections 308-337, inclusive): First. The inducement. "The office of this is to narrate the extrinsic circumstances which, coupled with the language published, affects its construction, and renders it actionable, where, standing alone and not thus explained, the language would appear either not to concern the plaintiff, or, if concerning him, not to affect him injuriously. This being the office of the inducement, it follows that if the language does not naturally and per se refer to the plaintiff, nor convey the meaning the plaintiff contends for, or if it is ambiguous and equivocal, and requires explanation by some extrinsic matters to show its relation to the plaintiff, making it actionable, the complaint must allege by way of inducement, the existence of such extraneous matter." Second. The colloquium, which is a direct allegation that the language published was concerning the plaintiff or concerning the plaintiff and his affairs, or concerning the plaintiff and facts alleged as inducement. Third. The fact of publication by the defendant, and the words published. It is held that not all the words need be published, but only such as are relied upon as libelous or slanderous. "It is sufficient to set out the words which, are material, and additional words, which do not diminish or alter the sense of the words directly alleged, may be omitted. But enough must be set forth to show the sense or connection in which the words set forth were used; otherwise there will be a variance, even if the precise words laid are proven to have been spoken." Fourth. The innuendoes, which may be alleged in connection with the published matter, or follow it. The office of an innuendo is to aver a meaning of the language published. An innuendo means nothing more than giving point or meaning as explanatory of a matter sufficiently expressed before. It may serve for an explanation, to point a meaning where there is precedent matter, expressed or necessarily understood or known, but never to establish a new charge. It may apply what is already expressed, but can not add to nor enlarge nor change the sense of the previous words. If the words before the innuendo do not sound in slander, no meaning produced by the innuendo will make the action maintainable, for it is not the nature of an innuendo to beget an action. An innuendo helps nothing unless the words precedent have a violent presumption of the innuendo. The business of an innuendo is, by a reference to preceding matter, to fix more precisely the meaning. The office of an innuendo is to explain, not to extend, what has gone before, and it can not enlarge *Page 106 the meaning of the words, unless it be connected with some matter of fact expressly averred. The innuendo "is only a link to attach together facts already known to the court." Applying these rules to the information, it will be seen that same contains what may be termed the "inducement," which, by the way, is held to be immaterial, whether it precedes or follows the alleged libelous matter; that it contains a colloquium, together with an allegation of publication. No innendoes appear to have been used, the pleader doubtless apprehending that the instrument; in question, as set out, on its face required no explanatory averment in order to ascertain its libelous character or against whom directed. In addition to this, the indictment alleged that said publication was libelous, under the statute, in two respects: that, being a candidate for office, he was dishonest, and therefore unworthy of such office; and that he had been guilty of some act or omission which, though not a penal offense, was disgraceful to him as a member of society, and the natural consequence of which was to bring him into contempt among honorable persons. We belive the indictment was sufficient if the matter set out in the publication be slanderous. See Woody v. State, 16 Texas Crim. App., 252; Johnson v. State, 31 Tex.Crim. Rep.; State v. Schmitt, 49 N.J. Law, 579, 9 Atl. Rep., 774.
In his criticism of the indictment, appellant insists that it merely means that defendant published of and concerning Walker that he (Walker) was a Populist, and that he had no faith in the principles advocated by the Democratic party; and that the distinctive principles of the two parties (Populist and Democratic) should have been averred, in order that it might be seen whether or not it was disgraceful to entertain the views of a populist and to eschew those of a Democrat. If the information in question contained no more than this, no doubt appellant's contention would be correct; but, when we read all the parts of the information, it affirmatively charges that the prosecutor, Walker, was a candidate of the Democratic party, and its nominee for the office of county clerk of Clay County; and that an election was then pending for said office; and that the People's party were then and there opposing the nominees of the Democratic party of Clay County, and were seeking to defeat their election, and especially were opposed to the election of the said Walker; and that said Walker, occupying the attitude of the nominee and candidate of the Democratic party for county clerk, wrote and caused to be sent out secretly a circular letter, marked "Confidential," of and concerning himself, to the effect that he was not in sympathy with the views of the party of which he was a candidate, but that he believed in the platform and principles enunciated by the People's party, whose support he was then secretly striving to procure — that is, we gather from the allegations here made that it was intended to charge that while Walker was openly posing as a Democrat, and availing himself of their support, he was at the same time, by a secret circular, undermining the party of which he was a candidate, and seeking the aid and support of the opposition, in a clandestine manner. Now, was this conduct dishonest as *Page 107 applied to a candidate for office? The language of the statute is that, in order for the matter to be slanderous as to the candidate for office, there must be an imputation that he was dishonest, and therefore unworthy of such office. While, according to some definitions, "dishonesty," in its broader sense, might reach such conduct as was here attributed to the prosecutor, Walker, we do not believe the statute had reference to that character of dishonesty. But it means such want of honesty as would go to his personal integrity, and would render him unfit to be trusted with official duties. The mere fact that a person was unfaithful to the party whose nominee he may have been, or that, while he was the nominee of one party, he was secretly conniving with the other opposing party for its support, while it would suggest a want of such high moral principle as should actuate a party's standard bearer, yet it would not indicate a want of such personal honesty as would render him unworthy of holding an office.
Does the language and conduct stated by the circular, in contemplation of the statute, show that appellant imputed to the prosecutor, Walker, that he was guilty of an act disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable person? We must confess that the answer to this question is fraught with some difficulty. In a general sense, it would certainly not be considered honorable to be a candidate of one party, and secretly connive with the opposition for its support. Such conduct, even among politicians, would be regarded as disreputable, and justly so; but is it the sort of conduct characterized by the statute as an act disgraceful to the person so doing as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons? We can conceive of a vast number of acts that would tend to disgrace a man in the eyes of society, and the natural tendency of which would be to bring such person into contempt among honorable persons. A number of acts which we may imagine might be on the border line. In such case it would be difficult to determine whether or not they were within the purview of the statute. It is always a question for the court to say whether or not the particular act attributed is libelous or not. Our Constitution provides: "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." See Bill of Rights, Const., art. 1, sec. 8. And article 748 of the Penal Code of 1895 is to the following effect: "The jury, in every case of libel, are not only the judges of the facts and of the law, under the direction of the court, in accordance with the Constitution, but they are judges of the intent with which a libel may have been published or circulated, subject to the rules prescribed in this chapter; and, in rendering their verdict, they are to be governed by a consideration of the nature of the charge contained in the libel, the general reputation of the person said to be defamed, and the degree of malice exhibited by the defendant in the commission of the offense." These provisions, as we understand them, authorize the court to judge *Page 108 whether the particular matter comes within the definition of a libel under the statute, but in no wise curtail the functions of the jury as to the intent with which the libel may have been published. It will be borne in mind, as before stated, that the language — that is, the circular containing the libelous matter — is not equivalent to the mere declaration on the part of the appellant that Walker, the prosecutor, was a Populist. This language would not be libelous, but the indictment embracing the inducement and the circular in question contains far more than this. It contains the charge that the prosecutor, Walker, while ostensibly a Democrat and the nominee of the Democratic party, had written and signed a secret circular, and sent the same abroad to certain parties, abnegating a belief in the principles of the party whose cause he was openly espousing, and professing a belief in the Populist, the opposing party; thus treacherously seeking their support in his election. The indictment shows that, if said circular was true, he was acting the part of a hypocrite and a traitor; and certainly, in our opinion, if guilty of such conduct, it was calculated to bring him into disgrace and reproach among gentlemen, and should justly subject him to the contempt of all honorable persons; and we believe it was such an act as is within the contemplation of our statute on the subject. We hold that this charge in the indictment was a sufficient allegation of libel.
Appellant, by several bills of exception, objected to certain testimony. We believe that the testimony of Gorman and McWhorter was admissible. With reference to placing the witnesses under the rule, while this is a matter much in the discretion of the court, still, when the rule is invoked, unless some good reason is shown, all of the witnesses should be placed under the rule, and we see no good reason why the witness Walker should have been excused by the trial judge.
Appellant excepted to the charge of the court, and also asked a number of special charges which the court refused to give, and he reserved his bill of exceptions. These exceptions raised several material questions. The court, in the general charge, only instructed the jury with reference to the allegation of the information predicated on the proposition that appellant attributed an act of dishonesty to the prosecutor, who was a candidate for office, that rendered him unworthy of holding said office. As we have seen, the information is not libelous as to this charge, but was only libelous on the proposition that it attributed to the prosecutor Walker an act disgraceful to him as a member of society, and the natural consequence of which was to bring him into contempt among honorable persons. This latter phase of the case was not given to the jury at all. Appellant's special charges, while not correct, called the court's attention to this matter, as charges were presented embracing both views. Evidently, the jury responded to the charge of the court, and found their verdict upon a charge not authorized by law, as we have held same was not libelous. The court should have instructed them to ignore or disregard that portion of the information, and should have simply instructed them on the other proposition, substantially to the effect *Page 109 that if they believed appellant made or published said circular under the circumstances stated in the information, and if they believed that, under such circumstances, the making or publication of said secret circular letter by defendant was of and concerning the prosecutor, and attributed to him an act disgraceful as a member of society, and the natural consequence of which was to bring him into contempt among honorable persons, they should find him guilty, and assess his punishment at a fine, etc. We do not undertake herein to lay down a precise form for a charge on this subject, but merely indicate in outline the character of charge which should be given. For the error of the court in, failing to properly instruct the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.