Ross v. State

Court of Criminal Appeals of Texas

Ross v. State

25 S.W.2d 332, 114 Tex. Crim. 439, 1930 Tex. Crim. App. LEXIS 192

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 29, 1930

DocketNo. 12914.

StatusPublished

This text of 25 S.W.2d 332 (Ross v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ross v. State, 25 S.W.2d 332, 114 Tex. Crim. 439, 1930 Tex. Crim. App. LEXIS 192 (Tex. 1930).

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Opinions

*440 HAWKINS, Judge.

Conviction is for libel committed by publishing a statement regarding R. W. Ashworth, punishment being assessed at six months’ imprisonment in the county jail.

The court was requested to arrest the judgment on the ground that the indictment charged an intent to injure R. E. Ashworth and then averred that the alleged libelous statement was designed to affect the reputation of R. W. Ashworth. Appellant contends the variance in the middle initial rendered the indictment ambiguous and contradictory on its face. The injured party is referred to in the indictment as R. W. Ashworth some twenty-eight times, and only one time as R. E. Ashworth. In Sec. 462, Branch’s Ann. Tex. P. C. is found the following statement: “A middle initial is not known in law and a variance between the allegation and proof as to a middle initial is immaterial. A middle initial may be rejected as surplusage.” The text is supported by Art. 401, C. C. P.; Thompson v. State, 64 Tex. Cr. R. 514; Wampler v. State, 28 Tex. Cr. App. 352; Jones v. State, 50 Tex. Cr. R. 210; and many other cases annotated under said Section 462.

The judgment was sought to be arrested also upon the ground that the alleged libelous article was set out at length in the indictment and that the pleader failed to single out the libelous matter. The article in question is too long to set out here, but the manner of pleading it, — with the innuendo averments in connection with the various phases thereof — seems to render the attack on the indictment without merit.

The application for continuance of the case was properly overruled as appears from the averments in the application itself as well as from the count’s qualification to the bill of exception relating to the matter.

Under the facts of this case we think appellant’s complaint that the argument of counsel for the state was a reference to appellant’s failure to testify is groundless. It was not a direct reference to his failure to testify and under the facts the language used does not appear to be a necessarily implied allusion thereto. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580.

The judgment is affirmed.

Affirmed.

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*440 HAWKINS, Judge.

Conviction is for libel committed by publishing a statement regarding R. W. Ashworth, punishment being assessed at six months’ imprisonment in the county jail.

The court was requested to arrest the judgment on the ground that the indictment charged an intent to injure R. E. Ashworth and then averred that the alleged libelous statement was designed to affect the reputation of R. W. Ashworth. Appellant contends the variance in the middle initial rendered the indictment ambiguous and contradictory on its face. The injured party is referred to in the indictment as R. W. Ashworth some twenty-eight times, and only one time as R. E. Ashworth. In Sec. 462, Branch’s Ann. Tex. P. C. is found the following statement: “A middle initial is not known in law and a variance between the allegation and proof as to a middle initial is immaterial. A middle initial may be rejected as surplusage.” The text is supported by Art. 401, C. C. P.; Thompson v. State, 64 Tex. Cr. R. 514; Wampler v. State, 28 Tex. Cr. App. 352; Jones v. State, 50 Tex. Cr. R. 210; and many other cases annotated under said Section 462.

The judgment was sought to be arrested also upon the ground that the alleged libelous article was set out at length in the indictment and that the pleader failed to single out the libelous matter. The article in question is too long to set out here, but the manner of pleading it, — with the innuendo averments in connection with the various phases thereof — seems to render the attack on the indictment without merit.

The application for continuance of the case was properly overruled as appears from the averments in the application itself as well as from the count’s qualification to the bill of exception relating to the matter.

Under the facts of this case we think appellant’s complaint that the argument of counsel for the state was a reference to appellant’s failure to testify is groundless. It was not a direct reference to his failure to testify and under the facts the language used does not appear to be a necessarily implied allusion thereto. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580.

The judgment is affirmed.

Affirmed.

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25 S.W.2d 332, 114 Tex. Crim. 439, 1930 Tex. Crim. App. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-state-texcrimapp-1930.

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