The appellant was convicted in the County Court of McLennan County for the offense of libel, and his punishment assessed at a fine of $1,000.
The indictment is based upon Art. 1269, 1925 Penal Code (Art. 1151 of the old code), and charges that the appellant "did then and there, with intent to injure Miss Adelaide Hague, unlawfully and maliciously make, write, print, publish and circulate a malicious statement of and concerning the said Miss Adelaide Hague and affecting the reputation of the said Miss Adelaide Hague, to the tenor following:
"* * * 'Is it true that a certain Waco lady (meaning Mrs. J. H. Hutcherson) called in a former chief of police (meaning former Chief of Police Guy McNamara), who took the city nurse (meaning Miss Adelaide Hague) from your department (meaning the City Health Department of the City of Waco) and put her (Miss Adelaide Hague) under his (meaning the said Guy McNamara) probation due to adultery between you (meaning Jim Tinsley) and her (meaning Miss Adelaide Hague)?
" 'Is this woman (meaning Miss Adelaide Hague) still in your (meaning Jim Tinsley's) department? Do you (meaning Jim Tinsley) mean to announce for office in February? I'll (meaning A. Reilly Copeland) make no public statement unless you (meaning Jim Tinsley) ignore this letter altogether or explain in person the matters involved, which are of common report.
Sincerely, A. Reilly Copeland.'
("And by the expression: 'Is it true that a certain Waco lady called in a former chief of police, who took the city nurse from your department and put her under his probation due to adultery between you and her,' the said A. Reilly Copeland meant that the said Miss Adelaide Hague had committed adultery with Jim Tinsley.")
The appellant presented a motion to abate the indictment herein, alleging that he was a minister of the gospel and interested in the public welfare, and that the District Judge who presided at the time when the indictment was returned by the grand jury, the corporation judge of the city of Waco, one *Page 232 J. W. Tinsley, and the city commissioners belonged to what is known as the Ku Klux Klan, and, together with other members of said Klan, had conspired to indict the appellant for the purpose of destroying his usefulness as a citizen and as a pastor. Complaint is also made, by the motion to abate, to the formation of the jury commission which selected the grand jury, and to the charge of the District Judge to the grand jury, and to other matters pertaining thereto, which, appellant contends, render the indictment invalid. After a careful examination of the motion, we are of the opinion that, as presented, no error is shown in the ruling of the court thereon.
Bills of exception Nos. 11 to 17, inclusive, complain of the action of the court in refusing to quash the indictment. These bills, as presented, show no error in the ruling of the court thereon.
Bill No. 18 complains of the action of the court in overruling appellant's motion to quash, the contention being that the indictment should have been drawn under Chapter 2, Art. 1293, 1925 Penal Code (Art. 1180 of the old code), relative to slander, instead of Art. 1269, supra, on libel. There is no merit in this contention.
Bill No. 19 complains of the action of the court in discharging from service on the jury one W. M. Jackson, a negro. The trial court refused the bill as presented by appellant, and the bill, as prepared by the court on this point, shows no injury to the appellant by reason of the ruling of the court thereon.
There are several bills of exception in the record complaining, in various forms and ways, of the court's charge to the jury, but the record fails to show any special charges presented by appellant covering the objections raised to the court's charge. This being a misdemeanor, it devolves upon appellant to prepare a proper special charge covering the matters complained of and present same to the trial court at the proper time before this court, under the law, would be authorized to consider said objections.
Bill No. 24 complains of the charge given by the court on the penalty for libel and insists that the court should have charged the jury, in lieu thereof, the law as to the penalty for slander. What we have said relative to bill No. 18 is applicable to this bill.
Bills Nos. 34, 35, 36, 37 and 38 are in question and answer form and also contain statements and argument between counsel and the trial court. For this reason, attorneys for the state object to the consideration of these bills by the court, which contention is well taken, and under the law we are precluded *Page 233 from considering same by reason of the form in which they are presented. Broussard v. State, 271 S.W. 385; Robbins v. State,272 S.W. 175; Panyon v. State, 275 S.W. 1076, and other authorities too numerous to mention.
There are six or eight bills of exception to the argument of the County Attorney. We have examined these bills and deem it unnecessary to go into a detailed discussion thereof. Suffice to say that these bills, as presented, are not such, in our opinion, as would require a reversal of the case.
After a careful examination of the entire record, we are unable to reach the conclusion that the record, as presented, shows any reversible error, and the judgment of the trial court is therefore affirmed.
Affirmed.
The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.