HENDERSON, Judge.
Appellant was convicted of libel, and his punishment assessed at a fine of $200; hence this appeal.
Appellant made a motion to quash the information: “First, because said information fails to allege that the said acts of the defendant were libelous; second, said information fails to allege that the acts of the defendant were wickedly committed; third, that said information fails to allege any offense against the penal laws of the State.” It is not necessary to allege the matters stated in the first two grounds of the motion. No special ground is pointed out under the third subdivision why said information is defective, and from an inspection of the same it appears to us that the information is good.
What purports to be a statement of the facts is found in the record, but it bears neither the approval of the judge nor the file mark of the clerk. The State, by the Assistant Attorney-General, moves to suppress and strike out the same. In reply thereto, to show diligence, appellant files what purports to be a statement by the county judge, and also a certified statement signed by Charles Huppertz, as deputy of John Hornsby, county clerk of Travis County. It has been held that diligence could be
shown, where the statement of facts was not filed in time, by the affidavits of parties. See Prieto v. State, 35 Texas Crim. Rep., 69; Bigham v. State, 36 Texas Crim. Rep., 452. But these statements are not supported by any affidavit. If, however, we take them as true, it does not show diligence on the part of the appellant. The statement by the judge shows that the attorney for the State or defendant informed him that the statement of facts was filed with the clerk of the court within the required time, and requested him to approve the same; that he intended doing so, but overlooked it; that his time was taken up with other matters. This course does not seem to be contemplated by the statute, which requires “that when a statement of facts has been agreed upon by the attorneys, that the same shall be submitted to the judge, who shall, if he find it correct, approve and sign it, and the same shall then be filed with the clerk;” evidently requiring that the appellant shall make his submission to the judge, and, after the approval he shall file the same. This was not' a case where the parties failed to agree upon a statement of facts, and submitted their respective statements to the judge, who is then required to make out a statement of the facts, and himself file the same. See Bigham v. State, 36 Texas Crim. Rep., 453. Appellant did not use diligence to have the statement of facts approved and filed; hence we can not consider the same as any part of the record.
Appellant objected to the testimony of J. D. Fields, to the effect that he thought the libelous article referred to him, because in the same issue of the paper there was an editorial referring to the same, and mentioning his name. This was objected to, on the ground that the testimony showed that it was published in a newspaper, and there was no allegation in the information that it was published in a newspaper, and because Fields had been present in the courtroom while some of the State witnesses had been examined, and the rule had been invoked as to the witnesses. With regard to the first contention, it was not necessary for the information to have alleged the publication to have been in a newspaper in order to have admitted proof of the publication in a newspaper. The matter of placing witnesses under the rule is within the discretion of the court, and where, by unintentional omission, as shown in this ease, the witness was not placed under the rule, it is within the discretion of the court to allow such witness to be introduced, and the bill does not show that the discretion of the judge was abused in this instance.
Appellant also complains that the court refused to permit him to prove by several witnesses that J. D. Fields, the alleged libeled party, had borne the general reputation among his neighbors and the community in which he lived as set out in the alleged libelous article; and the bill claims that each of said witnesses would have testified that they had known the prosecutor, Fields, for a number of years, and they knew it to be the rumor and conversation in the neighborhood and the report of the entire community that Fields had been guilty of robbing the Farmers’ Alliance of $5000, as well as each and every accusation and statement set out in the information and alleged libelous article, and that said accusations and
reports were the common gossip and conversation of the community long before this defendant ever lived in Travis County. Defendant claims that this evidence should have been admitted for the purpose of showing that he had no malice towards the alleged libeled party, and in mitigation of any punishment the jury might inflict, if they found him guilty. It is permissible, in trials of this character, to prove the general reputation of the alleged libeled party. See Penal Code, art. 748, and 13 Am. and Eng. Enc. of Law, p. 493, subd. b, note 7 thereto. For instance, in this case, if we look to the information, it alleged that appellant charged the prosecutor, Fields, with dishonesty; and he could have proved that he bore the general reputation in the community in which he lived as being a dishonest man. However, by looking at the bill, it will be seen that it was not general reputation appellant desired to prove, but rumor and conversation in the neighborhood in regard to the specific acts charged. This character of testimony was not admissible. See 13 Am. and Eng. Enc. of Law, p. 494, note 1, and authorities there cited; Hanners v. McClelland, 74 Iowa, 318, 37 N. W. Rep., 389.
Appellant desired to introduce G. G. Guthrey as a witness on his behalf, to prove by him that he wrote the libelous article, and that same was published in the State Democrat, a newspaper, the same being the joint property of appellant and Guthrey; and that appellant had nothing to do with the writing of said article, but only set it up in type; and that said Guthrey was mad and angry with Fields, but appellant had no malice against Fields. The State objected to this witness on the ground that he had been convicted of the same offense, and had not paid the fine and costs, it being shown that he was then under a convict bond-for the payment of the same. We think he was disqualified as a witness. He was still in custody working out his fine and costs. The fine was not paid, and, if he had escaped before the maturity of the bond, he could have been rearrested, placed in jail, and the bondsmen released. This is not like the case of Ex Parte Logsden, 35 Texas Criminal Reports, 56. Moreover, the testimony offered was not admissible. The bill shows that appellant was part owner of the paper, and set the type in which the article was printed; and he certainly was liable, although he may not have had anything to do with the writing of the article. It is not necessary to notice 'the bill with reference to the character of the testimony on which the judge predicated his exclusion of the witness Guthrey. We take it, however, that, when the witness was offered, it is not competent for the court to exclude his testimony, unless the State had offered the record of his conviction; but the question is not presented in that shape in the bill.
The appellant placed the judge on the stand, and desired to ask whether or not the witness Guthrey had pleaded guilty before him as county judge.
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HENDERSON, Judge.
Appellant was convicted of libel, and his punishment assessed at a fine of $200; hence this appeal.
Appellant made a motion to quash the information: “First, because said information fails to allege that the said acts of the defendant were libelous; second, said information fails to allege that the acts of the defendant were wickedly committed; third, that said information fails to allege any offense against the penal laws of the State.” It is not necessary to allege the matters stated in the first two grounds of the motion. No special ground is pointed out under the third subdivision why said information is defective, and from an inspection of the same it appears to us that the information is good.
What purports to be a statement of the facts is found in the record, but it bears neither the approval of the judge nor the file mark of the clerk. The State, by the Assistant Attorney-General, moves to suppress and strike out the same. In reply thereto, to show diligence, appellant files what purports to be a statement by the county judge, and also a certified statement signed by Charles Huppertz, as deputy of John Hornsby, county clerk of Travis County. It has been held that diligence could be
shown, where the statement of facts was not filed in time, by the affidavits of parties. See Prieto v. State, 35 Texas Crim. Rep., 69; Bigham v. State, 36 Texas Crim. Rep., 452. But these statements are not supported by any affidavit. If, however, we take them as true, it does not show diligence on the part of the appellant. The statement by the judge shows that the attorney for the State or defendant informed him that the statement of facts was filed with the clerk of the court within the required time, and requested him to approve the same; that he intended doing so, but overlooked it; that his time was taken up with other matters. This course does not seem to be contemplated by the statute, which requires “that when a statement of facts has been agreed upon by the attorneys, that the same shall be submitted to the judge, who shall, if he find it correct, approve and sign it, and the same shall then be filed with the clerk;” evidently requiring that the appellant shall make his submission to the judge, and, after the approval he shall file the same. This was not' a case where the parties failed to agree upon a statement of facts, and submitted their respective statements to the judge, who is then required to make out a statement of the facts, and himself file the same. See Bigham v. State, 36 Texas Crim. Rep., 453. Appellant did not use diligence to have the statement of facts approved and filed; hence we can not consider the same as any part of the record.
Appellant objected to the testimony of J. D. Fields, to the effect that he thought the libelous article referred to him, because in the same issue of the paper there was an editorial referring to the same, and mentioning his name. This was objected to, on the ground that the testimony showed that it was published in a newspaper, and there was no allegation in the information that it was published in a newspaper, and because Fields had been present in the courtroom while some of the State witnesses had been examined, and the rule had been invoked as to the witnesses. With regard to the first contention, it was not necessary for the information to have alleged the publication to have been in a newspaper in order to have admitted proof of the publication in a newspaper. The matter of placing witnesses under the rule is within the discretion of the court, and where, by unintentional omission, as shown in this ease, the witness was not placed under the rule, it is within the discretion of the court to allow such witness to be introduced, and the bill does not show that the discretion of the judge was abused in this instance.
Appellant also complains that the court refused to permit him to prove by several witnesses that J. D. Fields, the alleged libeled party, had borne the general reputation among his neighbors and the community in which he lived as set out in the alleged libelous article; and the bill claims that each of said witnesses would have testified that they had known the prosecutor, Fields, for a number of years, and they knew it to be the rumor and conversation in the neighborhood and the report of the entire community that Fields had been guilty of robbing the Farmers’ Alliance of $5000, as well as each and every accusation and statement set out in the information and alleged libelous article, and that said accusations and
reports were the common gossip and conversation of the community long before this defendant ever lived in Travis County. Defendant claims that this evidence should have been admitted for the purpose of showing that he had no malice towards the alleged libeled party, and in mitigation of any punishment the jury might inflict, if they found him guilty. It is permissible, in trials of this character, to prove the general reputation of the alleged libeled party. See Penal Code, art. 748, and 13 Am. and Eng. Enc. of Law, p. 493, subd. b, note 7 thereto. For instance, in this case, if we look to the information, it alleged that appellant charged the prosecutor, Fields, with dishonesty; and he could have proved that he bore the general reputation in the community in which he lived as being a dishonest man. However, by looking at the bill, it will be seen that it was not general reputation appellant desired to prove, but rumor and conversation in the neighborhood in regard to the specific acts charged. This character of testimony was not admissible. See 13 Am. and Eng. Enc. of Law, p. 494, note 1, and authorities there cited; Hanners v. McClelland, 74 Iowa, 318, 37 N. W. Rep., 389.
Appellant desired to introduce G. G. Guthrey as a witness on his behalf, to prove by him that he wrote the libelous article, and that same was published in the State Democrat, a newspaper, the same being the joint property of appellant and Guthrey; and that appellant had nothing to do with the writing of said article, but only set it up in type; and that said Guthrey was mad and angry with Fields, but appellant had no malice against Fields. The State objected to this witness on the ground that he had been convicted of the same offense, and had not paid the fine and costs, it being shown that he was then under a convict bond-for the payment of the same. We think he was disqualified as a witness. He was still in custody working out his fine and costs. The fine was not paid, and, if he had escaped before the maturity of the bond, he could have been rearrested, placed in jail, and the bondsmen released. This is not like the case of Ex Parte Logsden, 35 Texas Criminal Reports, 56. Moreover, the testimony offered was not admissible. The bill shows that appellant was part owner of the paper, and set the type in which the article was printed; and he certainly was liable, although he may not have had anything to do with the writing of the article. It is not necessary to notice 'the bill with reference to the character of the testimony on which the judge predicated his exclusion of the witness Guthrey. We take it, however, that, when the witness was offered, it is not competent for the court to exclude his testimony, unless the State had offered the record of his conviction; but the question is not presented in that shape in the bill.
The appellant placed the judge on the stand, and desired to ask whether or not the witness Guthrey had pleaded guilty before him as county judge. The court excluded this testimony, on the ground that the record of his conviction was the best evidence. -If appellant had insisted on the right of his witness to testify unless the State had confronted him with the conviction, he would have been in a better condition. But, as stated before, the testimony of the witness Guthrey, if he had been allowed to testify,
was absolutely immaterial. We would observe, with reference to the exclusion of evidence, that, in the absence of a statement of facts, we are unable to decide, even if the testimony was improperly excluded, as to whether or not it would be ground for reversal. The testimony may have been overwhelming, and the excluded testimony in such case would amount to nothing.
We have examined the charge of the court, and, in our opinion, it is correct. Appellant complains of subdivision 4 of the charge, which is as follows : “If the libel be in printed form, and issues where a public newspaper is conducted or printed, the editor, publisher, and proprietor of such newspaper, or any one of them, shall be deemed guilty of making or circulating such libel, until the contrary is made on the trial to appear.” In some cases this would unquestionably be a charge on the weight of the testimony, notwithstanding it is in the language of the statute. But the statement of facts is not before us, and we are unable to tell whether the charge was of a character calculated to injure the rights of the appellant. The statement of facts may show overwhelmingly that appellant avowed and admitted that he participated in the publication and circulation of said article. The special charges requested by appellant were not called for. The article in question was very abusive and denunciatory of the prosecutor, Fields, charging upon him matters that were criminal offenses, as theft, embezzlement, etc.; and appellant could not shield himself on the ground that he protested against their publication. He was not compelled to set the type, and his duty as a good citizen was simply to refuse to have anything to do with the publication of said article, and not to agree to the same under any kind of suggestion from Ids partner that he would assume the responsibility, etc. This shows that he knew the publication of said article was wrong, and that he stipulated, for an indemnity before he would consent to its publication. The charge of the court given at the request of appellant to the effect that, before they could convict appellant, they must believe that he did maliciously, with intent to injure the reputation of defendant, J.- D. Fields, make, write, print, publish, sell, and circulate malicious statements affecting the reputation of the said J. D. Fields, etc., was all that was necessary in addition to the general charge given by the court on the subject. There being no errors in the record, the judgment is affirmed.
Affirmed.