Myre v. State , 126 Tex. Crim. 157 ( 1934 )

Appellant again insists that he was privileged to introduce evidence which tended to establish the truth of the matter alleged to have been libelous under the first subdivision of article 1290 P. C., which permits accused to show the truth of an alleged libelous statement, "where the publicationpurports to be an investigation of the official conduct of officers or men in a public capacity." He points out that in the libelous document it appears that the affiant thereto said appellant told her he had heard that she had been helped by the Greenville Social Service, and asked her how J. F. Daniels had treated her. Appellant claims that this shows from the libelous document itself that it purported to be an investigation which brings into operation section 1 of said article 1290 P. C. We are still unable to agree with such proposition. There is nothing in the libelous affidavit showing any relation between Daniels and the Greenville Social Service. Upon its face the document appears to be a libelous statement against an individual, in which case the law seems to be that however true the charges may be their publication provokes mischief to prevent which is the purpose of the libel law. If the libelous document could be considered in connection with other facts there might be something in the position taken by appellant, but the statute mentioned is controlling and this court has no power to modify or abrogate it. The case of Copeland v. State, 108 Tex.Crim. Rep., 300 S.W. 86, in no wise aids appellant on the point under consideration. The charges against accused there came under the second subdivision of article 1290 P. C. where the alleged libelous matter contained the statement that accused had been guilty of some penal offense, in which case the statute expressly permits proof that the charge was true.

Appellant now insists that affidavits other than the one upon which the libel charge is predicated were admissible in evidence because he claimed to have secured all of them in the course of an investigation of Daniels' administration of the social service work in Greenville. As understood by us appellant's exact position is that after the State had introduced in evidence the affidavit upon which the libel charge was predicated appellant then had the right to introduce affidavits from other parties secured by appellant during his claimed investigation. Appellant seems to think such affidavits were admissible under article 728 C. C. P., which reads as follows: "When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other. * * *" No such reason was advanced at the time of the trial as making the other affidavits admissible, and if it had been we think the same untenable. Article 728 has no appliciation here.

The next proposition advanced by appellant is unique. It seems to be that, if under the statute appellant could not prove the truth of the alleged libelous statement as a matter of defense, he still should have been permitted to prove its truth on the question of his intent in publishing the libel; in other words, if true, he did not intend to injure. We confess our inability to following appellant's reasoning in the premises, and apprehend that he has confused the broad rule in cases of slander with the restricted rule in libel cases. Article 1293, P. C. denounces it an offense to impute to a female a want of chastity. Article 1294, P. C., relative to such offense reads: "It shall not be necessary for the State to show that such imputation was false, but the defendant may in justification show the truth of the imputation, and the general reputation for chastity of the female alleged to have been slandered may be inquired into." Under said statute it appears that in all cases of slander an accused in defense may prove the truth of such imputation, while in libel proof of the truth is available only in the exceptional instances named in the statute. (article 1290, P. C.). Why the Legislature made proof of the truth a defense in all slander cases, and not a defense in all libel cases, or whether such difference is wise, are questions which this court it not called upon to determine. In support of his proposition appellant cites the following authorities. McMahan v. State, 13 Texas App., 220; Van Dusen v. State, 30 S.W. 1073; Duke v. State, 19 Texas App., 14; Wagner v. State, 17 Texas App., 554; Jackson v State, 60 S.W. 963; Lefever v. State, 49 S.W. 383; McDonald v. State,164 S.W. 831, and Copeland v. State, 108 Tex.Crim. Rep.,300 S.W. 86. The last case is inapplicable because the libel charged fell under another section of article 1290, P. C. as already pointed out. All the other cases were prosecutions for slander where a different rule obtains as shown by article 1294, P. C. above quoted.

It is not thought necessary to discuss the other points urged by appellant in his motion for rehearing. They were all considered in the original opinion and we believe correctly disposed of.

The motion for rehearing is overruled.

Overruled.