Whitehead v. StateWhitehead v. State
- Reporters:
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- Before:
- Henderson
Appellant was convicted of slander, and his punishment assessed at a fine of $100; hence this appeal.
Appellant excepted to the indictment on the ground that the expression attributed to the appellant in said indictment, to wit, that defendant had told one Burney Quinn thаt he had seen the prosecutrix and Lorenzo Bounds “getting there,” was not language imputing a want of chastity to the prosecutrix, and was nоt susceptible by innuendo of the meaning attributed to said expression, to wit, that the prosecutrix and Lorenzo Bounds were having carnal intеrcourse. The use of the expression, by itself, does not convey in terms the imputation of a want of chastity on the part of the prosecutrix, but, in our opinion, it is susceptible of the meaning given it by the innuendo. See 13 Am and Eng. Enc. of Law, pp. 463-466, inclusive, and notes; Zeliff v. Jennings, 61 Texas, 458.
Appellаnt asked that the court appoint a committee of physicians to *91 make an examination of the prosecutrix’s person, who was 15 years old past, and appeared unusually well developed for one of her age, and was to all appearаnces full grown and matured. Said examination was asked for to the end that it would develop the fact as to whether or not her hymen was intаct, and whether or not, in the opinion of said committee, she had ever indulged in carnal intercourse. The prosecutrix objectеd to said examination, and the court overruled defendant’s application, and refused to allow defendant to have said examination made except with the consent of the prosecutrix. Defendant reserved his bill of exceptions to this action of the court. It is not stated m the bill of exceptions that such examination would show that her hymen had been ruptured, and that she had had carnal interсourse with some person, but the examination was merely asked in order that the committee might investigate, and see whether or not her hymеn was intact. If it be conceded that a personal inspection of this character can be ordered and enforced by the court, the bill itself should not be speculative upon this point, but should state definitely what such examination was expected to develop. We know of no case in this State in which this question has been made, nor have we been cited to a decision from any other cоurt. There are eases in which, where a party is plaintiff and the suit is for damages for personal injuries, such inspection has been ordered and enforced by the court. See 1 Thomp. on Trials, sec. 859, et seq. And in some tribunals an inspection of the person of the acсused in criminal cases has been ordered, but has reference to matters of identity and of alleged injuries. See 2 Jones on Ev., sec. 403. Wе apprehend, however, in Texas, the courts would not be inclined to enforce a personal inspection or examination of the defendant on trial in the face of our statutory provision that does not authorize a defendant to be forced to give evidence against himself. See Gallaher v. State, 28 Texas Crim. App., 247. In this case the State was the prosecutor, and the order requestеd was to require the prosecutrix, who was a witness, to undergo an examination of her private parts. Eo doubt there may be cases where, in the discretion of the court, such personal view or inspection of the person would be required; but in the nature of things, as said by оne authority, “the propriety of such an order must usually rest largely in the discretion of the trial court, and it would only be in the ease of a рlain abuse of such discretion that the appellate court would interfere.” 1 Thomp. on Trials, sec. 863. In this ease we hold that the cоurt did not err in refusing to require the witness to undergo a personal inspection of her private parts.
There was no error in the court рermitting the State to prove, over the appellant’s objection, other language used by appellant at the time he is chаrged to have used the language to Quinn as contained in the indictment. Of course, in an action of this character, it was incumbent on the Stаte to prove the language charged in the information; but to give point and color to this lauguage, and to support the innuendo, it was perfectly competent to allow proof of all that was said on the sub-
*92 ject at that time between the parties; and the fact that there was no allegation in the information charging such other language would make no difference. There was no variance, because the State had to prove the very language used in the information, and unquestionably all the conversation had at the time could be adduced in evidence, although such other parts were not alleged. Eor, in our opinion, did the court commit any error in allowing proof that on other occasions subsequent to that charged in the indictment, and to other persons, appellant used the same or similar language in regard to the prosecutrix as that charged in the information. Such after-spoken words were admissible tо show the spirit and animus of the defendant in speaking the words charged in the information. See Collins v. State, ante, p. 30; Zeliff v. Jennings, 61 Texas, 458; 13 Am. and Eng. Enc. of Law, p. 490, and authorities cited.
While it was not pertinent for the witness Marshall Smith to state his motives in talking to the defendant in regard to the alleged slandеr, yet we fail to see how his answer could in anywise have been injurious to the appellant. It was the conversation, if anything, that was injurious, and not how he came to speak to him in regard to the matter. The fact that his purpose was to effect a compromise, thоugh immaterial, was harmless.
Defendant offered to prove by the witness Marshall Smith that he believed from the demeanor and statements madе by the defendant in his conversation with him about the alleged slander, that said defendant had really seen some parties in the act of carnal intercourse, and that he honestly believed that the said parties were the prosecutrix and Lorenzo Bounds. This testimony, in our opinion, was not admissible. It was a mere belief or inference the witness drew from the acts and conduct of the appellant. The appellant himself was on the stand, and he not only asseverated his belief, but stated that they were the identical parties that he saw.
. Therе is no charge in the’ record, and we presume that the court gave a proper verbal charge, as no complaint is urged оn that ground. We have examined the statement of facts carefully, and, in our opinion, the proof sustains the allegation in the indictment. The judgment is affirmed.
[Hots.—Appellant’s motion for a rehearing was overruled without a written opinion.—Reporter.]