Appellant was convicted of libel under an information, and his punishment assessed at a fine of $250. A jury was waived, and the court, after hearing the facts, assessed appellant's fine as above stated. The charging part of the information is as follows:
"That on or about the 31st day of October, A.D. 1899, one A.M. Lockhard did then and there, with the intent to injure J. Block, did unlawfully and maliciously make, write, print, publish, sell and circulate a malicious statement of and concerning J. Block, and affecting the reputation of the said J. Block, to the tenor following, to wit:
"`Blocked. Houston, Texas, June 30, 1899. To Whom It May Concern: Some time in July, 1898, I was approached by Mr. J. Block, sales agent of the Hallwood Cash Register Company of Columbus, Ohio, on the question of buying one of their multiple counter cash registers. I told him I was not in the market for a register, but he insisted on leaving one in my store for me to try. While the above-mentioned register was in my place, Mr. Pierre G. Keene, sales agent for the National Cash Register Company of Dayton, Ohio, called on me, and offered me a multiple counter National cash register for less money. Being satisfied that the National register was better, I told Mr. Block that I would buy the National register, whereupon Mr. Block informed me that the National people would not ship the register in question; furthermore, could not build it; and offered me $50 if the National Cash Register Company would accept my order and fill it, assuring me at the same *Page 64 time that the offering of this register for sale was merely a bluff on the part of the N.C.R. Co. Thinking this a fair proposition, I placed my order with Mr. Keene for a multiple counter National cash register No. 300, whereupon Mr. Block gave me a draft for $50. In the course of a few weeks the National register arrived; and, after satisfying myself that it would do the work claimed for it, and that it contained all the features that Mr. Block stipulated that it should contain, I forwarded the draft to Dallas for collection, but it was returned unpaid, accompanied by a note from Mr. Hirsch, Mr. Block's partner, saying that Mr. Block was out of the city, but would pay me upon his return. This Mr. Block failed to do, and, after repeated trials to collect this money from Mr. Block, I gave it up, concluding that my time was too valuable to spend in trying to collect money from an unprincipled sales agent. F.J. De Merritt.
"`Subscribed and sworn to before me. [Seal.] N.M. Norfleet, Notary Public in and for Harris County, Texas.'
"`[Picture.] No. 300. Department National Cash Register. This register is fitted with four department counters. They can be used to give the total cash sales, total credit sales, total money received on account, and total money paid out, or to show the total amount of cash sales made by each of four clerks, or the total amount of sales made in each of four departments.'
"`[Picture.] No. 35. Department Total-Adding National Cash Register. This register is fitted with two department counters, and is used for keeping a seperate record of cash sales and credit sales, or of the cash sales of two clerks, or for the cash sales of two departments in a store.
"`Our Three Guaranties: 1. We guarantee to furnish a better register than any other company, and at a lower price. 2. We guarantee the mechanical accuracy of our registers. 3. We guarantee one price to all. We offer $100 to any one who will buy a new, latest improved National cash register, either from any authorized agent or from the factory, for less than list price, less 5 per cent for cash. National Cash Register Company, Dayton, Ohio.'
"Against the peace and dignity of the State."
Appellant insists the information is insufficient, and cites authorities which were overruled in Mankins case, 41 Texas Criminal Reports, 662. In that case we held, among other things, that: "If the indictment or information, by a fair inspection, conveys the idea that the person has been guilty of some penal offense, or has been guilty of such conduct as is disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons, then it is not necessary to allege that said language in the indictment or information does charge him with a penal offense, or does bring him into disgrace as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons." Under the *Page 65 authority of the Mankins case, supra, we think the information in this case is good.
Appellant, by bills of exceptions numbers 1, 2, 3, and 4, complains that the court permitted the State to introduce witnesses to testify whether they had seen a copy of a certain pamphlet offered in evidence, which pamphlet is set out in the statement of facts; and whether they had any conversation with defendant, or heard him make any statement in regard to or in reference to said paper; the grounds of objection to said testimony being: "(1) Because the conversation or statement was subsequent to, and at a different time and place to, those alleged in the indictment, and proved by the witness Bolton to be the circulation or publication for which the indictment is presented. (2) Because the paper purports to have been made by another person than defendant, and is immaterial and irrelevant because of variance between it and the allegations in the indictment. (3) Because the question is not asked in regard to or as touching the paper alleged to be circulated, nor is the paper shown to witness pretended to be the paper that was circulated; but are both independent, separate, and distinct papers the one from the other. (4) Because the question, so far as it touches a proving or an effort to prove that the said paper was a copy or an exact reproduction of the paper set out in the indictment, or of the paper that was and is alleged to have been circulated, is secondary in character, and no effort had been made to obtain the original paper, nor any notice served on defendant or his attorneys to produce it or account therefor. (5) Because all said testimony that could be given in answer to the questions asked would be irrelevant and immaterial, and only serves, or could only serve, to confuse, it not being in regard to the papers alleged to have been circulated, and therefore not usable to prove the contents of the indictment." The court signs said bills referring to the statement of facts as authority for the introduction of the paper. The fact that the testimony offered was pamphlets circulated subsequent to the time appellant is charged with having violated the law does not render it any the less admissible. Without reviewing seriatim all of the above exceptions, we will say the proof shows that the paper about which the testimony was introduced was an exact copy of the paper appellant was prosecuted for circulating, or was a substantial copy of the same. A close scrutiny of the two papers, however, fails to disclose any difference between the paper which appellant is charged with circulating and the paper about which the testimony was adduced. This testimony was admissible as going to show motive, malice, purpose, and intent of appellant in circulating the paper charged in the information. His fourth ground — to the effect that it was secondary evidence, and no effort had been made to obtain the original paper, etc., is without merit, for, as stated above, the papers were identical with each other. He strenuously insists the judgment of the court is against the evidence, and is not supported thereby. As indicted above, we think the information is *Page 66 sufficient. The proof sustains the information. The court has passed upon the credibility of the witness and the evidence amply sustains the finding. The judgment is affirmed.
Affirmed.
[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]