Neely v. State

23 S.W. 798, 32 Tex. Crim. 370, 1893 Tex. Crim. App. LEXIS 283

• Court: Court of Criminal Appeals of Texas
• Decided: October 25, 1893
• Docket: No. 616.
• Status: Published

Opinion

SIMKINS, Judge.

Appellant was. convicted of slandering Rosetta Thomas, and his fine assessed at §150, from which he appeals. Both parties are colored.

1. The information charges, that Jim Neeley, in the county of Henderson, Texas, did orally, falsely, maliciously, and wantonly impute to a female in this State, to-wit, the said Jim Neeley did then and there, in the presence and hearing of Zack Worf and Hence Manning, and divers other persons, falsely, maliciously, and wantonly say of and concerning the said Rosetta Thomas, that Tom Cleveland was keeping her, the said Rosetta Thomas, and that Tom Cleveland was caught on Rosetta Thomas, against, etc.

We believe that the motion in arrest of judgment should have been sustained. The offense which the law punishes is falsely imputing a want of chastity when done wantonly or maliciously. The information here fails to state, except inferentially, what was imputed to a female in this State, or who the female was. It is carelessly drawn, and insufficient to sustain the prosecution, though we may concede the slanderous words need no innuendo or explanatory averment, which is doubtful. Willson’s Crim. Stats., sec. 1960, par. 4; Parker’s case, 9 Texas Cr. App., 351; Prophit’s case, 12 Texas Cr. App., 233.

2. The court erred in its charge to the jury in instructing them, that if they believed the slanderous words were spoken in the hearing of Zack Worf and Hence Manning, and divers other persons, or either of them, to find defendant guilty.

While the pleader should mention the name of one person, to give the defendant notice of the time and occasion on which the slander was uttered, when he alleges the names of two or more he should prove the allegation, for the names then become descriptive allegations and impose the necessity of proof. Soria’s case, 2 Texas Cr. App., 297; Willson’s Crim. Stats., sec. 1960, last paragraph.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.