Opinion
No. 13895.
Delivered February 11, 1931.
1. — Libel — Argument.
In prosecution for libel, statements in argument made by State's attorney were improper and prejudicial.
2. — Indictment — Charge.
The indictment properly charged the offense of libel and the charge of the court correctly presented the law of the case.
Appeal from the Tom Green County Court. Tried below before the Hon. J. T. Mathison, Judge.
Appeal from a conviction for libel; penalty, a fine of $500.
Reversed and remanded.
The opinion states the case.
Upton Upton, of San Angelo, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for libel; punishment, a fine of $500.00.
It appears from bill of exception No. 9 that the court gave a special charge asked by appellant, and that during the argument of the case, and in the closing argument of the county attorney, he said to the jury: "That said charge did not apply in this case and would apply only in a civil case." The argument was objected to as being in direct conflict with the court's instruction and as calculated to lead the jury to believe that said charge did not apply to this case and was not proper, and the appellant requested the court to instruct the jury not to consider the argument. The objections appear to have been overruled. That the argument was manifestly improper is apparent, and the point has been decided by this court in favor of appellant's contention. There is also complaint of another argument made by said county attorney to the effect that before he filed the complaints against appellant he discussed the matter with the district attorney, and on his advice filed said complaints, and that he had also discussed the same with eminent counsel of the city. It is apparent that discussion of this kind should not have been indulged. The only effect of such argument would be to put behind the prosecuting attorney's opinion that of the district attorney and of other eminent counsel. In none of the other matters presented by bills of exception do we think error is shown.
Appellant was an attorney in Dallas representing a mortgage company which had purchased a number of notes and accounts from a San Angelo concern which dealt in such securities. A bond had been made in San Angelo and signed by Mr. W. W. Foreman. The appellant wrote a letter to Mr. Foreman in which he plainly stated that the owner of the San Angelo concern, calling him by name, had misappropriated and converted the funds represented by the notes and accounts which were listed in the letter. We think the indictment sufficiently charged the offense, and that the charge of the court correctly presented the law of the case.
For the errors mentioned, the judgment will be reversed and the cause remanded.
Reversed and remanded.