Wimberly v. State

Court of Criminal Appeals of Texas

Wimberly v. State

4 S.W.2d 73, 109 Tex. Crim. 202, 1927 Tex. Crim. App. LEXIS 797

CourtCourt of Criminal Appeals of Texas

DecidedNovember 2, 1927

DocketNo. 11056.

StatusPublished

Cited by1 cases

This text of 4 S.W.2d 73 (Wimberly 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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Wimberly v. State, 4 S.W.2d 73, 109 Tex. Crim. 202, 1927 Tex. Crim. App. LEXIS 797 (Tex. 1927).

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Opinions

MARTIN, Judge.

The offense is slander and the punishment a fine of $500 and six months’ imprisonment in the county jail.

The indictment is attacked, principally, upon the ground that the language charged to have been used by appellant was not spoken of nor concerning the female, Emma Klearner, but was spoken of and concerning Eugene Klearner, and that such language does not impute a want of chastity to the female, Emma Klearner. Three slanderous statements appear in the indictment, two of which we are inclined to think are abusive epithets rather than imputations of a lack of chastity. The third statement is “that one Eugene Klearner was doing nothing else but pimping for his mother, by which was meant that the said Emma Klearner was haying carnal intercourse with other men, other than her husband, and that the said Eugene Klearner was soliciting other men to have carnal intercourse with the said Emma Klearner.” It was also alleged that “Eugene Klearner is the son of Emma Klearner.” We think this language clearly imputes to the female, Emma Klearner, a want of chastity, and that the indictment as a whole is sufficient to charge the offense of slander.

Nor do we think there is any merit to appellant’s contention that there was a variance between the indictment and evidence in that the testimony shows the names of Emma Klearner and Eugene Klearner were not used by appellant. It was shown that the slanderous language occurred in a restaurant and that said Eugene Klearner left about the time appellant and his companion entered and that appellant immediately began applying vile epithets towards him which continued' until the language above mentioned was used. The testimony fairly considered shows that the pronoun “he” was used by appellant instead of the words “Eugene Klearner,” as charged in the indictment. It was clearly shown of whom appellant was speaking and was proved without controversy that his mother was Emma Klearner. *204 It is only required that the words must be substantially proved as alleged. Conlee v. State, 14 Tex. Crim. App. 222. This proof could have in nowise misled appellant.

Finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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MARTIN, Judge.

The offense is slander and the punishment a fine of $500 and six months’ imprisonment in the county jail.

The indictment is attacked, principally, upon the ground that the language charged to have been used by appellant was not spoken of nor concerning the female, Emma Klearner, but was spoken of and concerning Eugene Klearner, and that such language does not impute a want of chastity to the female, Emma Klearner. Three slanderous statements appear in the indictment, two of which we are inclined to think are abusive epithets rather than imputations of a lack of chastity. The third statement is “that one Eugene Klearner was doing nothing else but pimping for his mother, by which was meant that the said Emma Klearner was haying carnal intercourse with other men, other than her husband, and that the said Eugene Klearner was soliciting other men to have carnal intercourse with the said Emma Klearner.” It was also alleged that “Eugene Klearner is the son of Emma Klearner.” We think this language clearly imputes to the female, Emma Klearner, a want of chastity, and that the indictment as a whole is sufficient to charge the offense of slander.

Nor do we think there is any merit to appellant’s contention that there was a variance between the indictment and evidence in that the testimony shows the names of Emma Klearner and Eugene Klearner were not used by appellant. It was shown that the slanderous language occurred in a restaurant and that said Eugene Klearner left about the time appellant and his companion entered and that appellant immediately began applying vile epithets towards him which continued' until the language above mentioned was used. The testimony fairly considered shows that the pronoun “he” was used by appellant instead of the words “Eugene Klearner,” as charged in the indictment. It was clearly shown of whom appellant was speaking and was proved without controversy that his mother was Emma Klearner. *204 It is only required that the words must be substantially proved as alleged. Conlee v. State, 14 Tex. Crim. App. 222. This proof could have in nowise misled appellant.

Finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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4 S.W.2d 73, 109 Tex. Crim. 202, 1927 Tex. Crim. App. LEXIS 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimberly-v-state-texcrimapp-1927.

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