Opinion
No. 692.
Decided November 4, 1893.
1. Slander — Indictment, Sufficiency of. — An indictment for slander based upon a statement of defendant of and concerning the prosecutrix, to the effect, that she "is pregnant, and will give birth to a child in a few days," is fatally defective and insufficient if it fails to exclude, by further allegation, that she was lawfully or legitimately pregnant.
2. Plea for Defendant — Practice on Appeal. — Where the record on appeal falls to show that a plea in behalf of defendant was entered in the court below, the prosecution will be dismissed.
APPEAL from the County Court of Bowie. Tried below before Hon. JOHN J. KING, County Judge.
This appeal is from a judgment of conviction for slander, wherein the punishment was assessed at a title of $100.
The charging part of the indictment is as follows: "That Ed Clark, late of the county of Bowie, on or about the 19th day of September, in the year of our Lord one thousand eight hundred and ninety-two, with force and arms, in the county of Bowie and State of Texas, did then and there orally, falsely, maliciously, and wantonly impute to a female in this State, to-wit, Fannie Mazingo, a want of chastity, to-wit, that the said Ed Clark did then and there, in the presence and hearing of J.B. Aikin, Jim Aikin, P. St. John, and divers other persons, falsely, maliciously, and wantonly say of and concerning the said Fannie Mazingo (that she?) is pregnant and will give birth to a child in a few days. Against the peace and dignity of the State."
Defendant moved to quash the indictment, because it was insufficient in law and charged no offense, in that it failed to allege that the prosecutrix was a married or unmarried female. This motion to quash was overruled, and this ruling was again assigned as one of the errors complained of in the motion for new trial.
A statement of the facts is unnecessary in view of the disposition made of the case on this appeal.
R.D. Hart, for appellant.
R.L. Henry, Assistant Attorney-General, for the State.
Appellant was convicted of slander, and prosecutes this appeal.
The indictment is insufficient. The slander consists in stating that Fannie Mazingo is pregnant and will give birth to a child in a few days. It should have excluded the fact that she was lawfully or legitimately pregnant. The record contains no plea for defendant. This is fatal to the judgment. Willson's Crim. Proc., secs. 2677, 2110.
The judgment is reversed and the prosecution dismissed.
Reversed and dismissed.
Judges all present and concurring.