elicit from her that appellant kept his gun [
downstairs and slept downstairs. The shot
was fired from an upstairs window, and this
evidence tended strongly to support the
state's theory of a preconceived killing or
murder; that the appellant had taken his
gun from where it usually stayed and gone
upstairs with it and there remained in am-
bush until deceased appeared in front of his
store. This was material testimony adduced
by the state from the wife and in support of
its theory. This was improper, as the defend-
ant in his examination of his wife had limit-county jail, and a fine of $50.

Heidingsfelders, of Houston, for appellant.
John H. Crooker, Crim. Dist. Atty., and E. T.
Branch, both of Houston, and C. C. McDon-
ald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was tried by the court without a jury and adjudged guilty of soliciting and procuring a female, Margaret Clayton, to meet and have unlawful intercourse with a male person. The court adjudged him guilty and assessed his punishment at one month's imprisonment in the

ed it solely to her relations with deceased. The only question raised that need be disAppellant objected to all the cross-examina- cussed is: Do the facts sustain the judgment tion, and any part of it being admissible. We of the court? The state introduced but onemight not feel authorized to reverse the case because of this improperly admitted testimony, as the exception should have pointed out the inadmissible or objectionable part of the testimony. On another trial, however, if objection is made to this portion of her testimony, and appellant's direct examination embraces no more than it did on this trial, such objection should be sustained, for the state cannot prove a material fact by the wife because she has been called to testify by the defendant on an entirely different branch of the case.

witness, Margaret Clayton, and her testimony makes a case against appellant. The only question is, is she an accomplice to the crime, for, if she is, her testimony is not corroborated in any essential particular. In fact, appellant by his testimony denies that he under any circumstances induced or procured Margaret Clayton to meet any man. The facts in this case are different from the facts in the companion case against appellant, in which he was charged with soliciting and procuring Grace Johnston to meet men for the purpose named, and in the case

The judgment is reversed, and the cause re- wherein Joe Dooms is charged with procurmanded.

DENMAN v. STATE. (No. 3621.)

ing Grace Johnston to meet men, in this: In those two cases Grace Johnston testifies she approached appellant and Dooms and solicited and requested them to make dates for her under an agreement by which Grace

(Court of Criminal Appeals of Texas. June 16, Johnston would pay them for so doing. In 1915. Rehearing Denied Oct. 13, 1915.)

1. CRIMINAL LAW 507-PROSTITUTION
1-SOLICITATION OF FEMALE-ELEMENTS OF
OFFENSE STATUTE-"ACCOMPLICE."

Under Pen. Code 1911, art. 498, providing that it shall be unlawful to invite, solicit, procure, or use any means for the purpose of allur ing or procuring any female to have unlawful sexual intercourse, the mere solicitation completes the offense, and the fact that the female solicited at once consents, without persuasion, does not render her an "accomplice," making requisite corroboration of her testimony for a conviction based solely thereon of the person soliciting.

this case Margaret Clayton testifies she did not approach appellant and solicit him to make dates; but, when she went to the Capitol Hotel and secured a room, appellant approached her, and asked "if there was anything doing," and upon her telling him, yes,. it would be all right, he proceeded to make dates with men, and would come and carry her to the rooms of the men, or would give her the number of the room and she would go. [1, 2] It is thus seen that in this case the woman did not instigate the crime; she was not the procuring cause; but appellant of his own motion, with the intent to commit

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. the crime, if it was agreeable with the wo507; Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. 1.

For other definitions, see Words and Phrases, First and Second Series, Accomplice.]

2. PROSTITUTION 4-SOLICITATION-SUFFICIENCY OF EVIDENCE.

man, approached her. If an act of intercourse was essential to a completion of the offense, it might well be contended that, even under such circumstances, she would be such a party to the crime as to require that her

In a prosecution for soliciting and procur- testimony be corroborated before a convicing a female to meet and have unlawful sexual intercourse with a male person an offense denounced by Pen. Code 1911, art. 498, evidence held sufficient to support a conviction.

[Ed. Note. For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. 4.]

tion was authorized. But the statute makes it an offense to "solicit and procure," even though an act of intercourse should not occur, if intervening causes should prevent the sexual intercourse. For, if appellant should solicit a woman to go with him to any place

Appeal from Harris County Court, at Law; to meet a man for the purpose of engaging in C. C. Wren, Judge.

carnal intercourse, he would be guilty even

Bill Denman was convicted of crime, and though the woman refused, and the fact that he appeals. Affirmed. she consents does not make her an accom-

plice, for his offense was complete when he necessary to plead that which need not be provmade the solicitation. The Code provides ed, article 453, providing that the certainty re(article 498) it shall be unlawful to invite, quired in an indictment is such as will enable the accused to plead the judgment, in bar of any solicit, procure, or use any means for the prosecution for the same offense, article 460, purpose of alluring or procuring any female providing that an indictment shall be deemed to meet a man for the purpose of having sex-sufficient which charges the offense so a person ual intercourse with him. Margaret Clayton

An information for slander, based on an imputation of unchastity, which avers that "he, the said J. M., did then and there *** say of and concerning the said E. S. in substance and effect the following," and then states what accused said, using the third person "he," is not defective as merely alleging what accused said "Because the information does not purport to or imported, without setting forth the language set out the language claimed to have been used used, in view of Pen. Code, art. 10, requiring by the defendant, but only purports to set out words to be taken and construed in their ordi- the substance and effect of same, whereas, under nary sense, Code Cr. Proc. art. 452, making it un- the law the exact language should be set out,

the substance thereof proven by the state, and the effect thereof left to the court and jury."

His able and eminent attorneys in their brief now say:

"We concede as well settled the rule many times declared by this court that in a slander case it is essential that the information or indictment set forth substantially the language which constitutes the imputation of a want of chastity. See Conlee v. State, 14 Tex. App. 222; Frisby v. State, 26 Tex. App. 180 [9 S. W. 463]. We do not contend that it is necessary to set out the language exactly or literally. This court has declared in the abovecited cases, as well as in others, that it is necessary only to set out substantially the language relied upon."

*

There can be no question but that our law is as stated. So that it is unnecessary to cite the other cases to that effect, or discuss that question at all.

Appellant in his brief further says: "The question here involved is whether or not this rule (that 'it is necessary only to set out substantially the language,' 'it is not necessary to set out the language exactly or literally') permits the pleader to state what on the face of the information purports to be merely the substance and effect of what was stated," his contention being that said conceded rule "does not mean that he (the pleader) may set out merely the meaning or import of the words said."

discussed or decided any question of pleading. No such question was raised therein. But in each of them was discussed a variance between the allegation and the proof, and decided only that question.

Our statute (P. C. art. 10) is:

"Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed."

This but prescribes a rule for the construction of the Code, which is equally, and practically universally, applicable to to "a word, term or phrase" used in a pleading or other writing. Taking into consideration the context and subject-matter of the whole of the pleading herein, we think there can be no question but that the phrase that “said Joe Martin did then and there * * * say of and concerning the said Elner Stephens, in substance and effect the following," could not otherwise be "understood in common language" than what it is then alleged he said, was substantially what he did say, instead of "merely what he meant or imported."

“*** That

substantially only. If it had been alleged literally, it would have been sufficient to have proved it substantially only.

Article 453, C. C. P., says:

His contention might be conceded and yet in no way result in the information being held bad, for it does not aver "merely the Besides, we have other statutory provimeaning or import" of the words said, but sions as to what allegations are necessary to instead it avers that "he, the said Joe Mar- constitute a good pleading: "* tin, did then and there say, in substance and which is not necessary to prove need not be effect, the following," then gives what he stated" in a pleading. C. C. P. art. 452. It said, using the third person, "he," and not was unnecessary to allege the language exthe first person, "I." In other words, appel-actly or literally, but sufficient to allege it lant would have us hold that when it is alleged that appellant said "in substance and effect" the following, then states what he said, is the same as alleging that appellant "meant or imported" the following, then states what he meant or imported merely, and not what he said. This we cannot do. Averring that he "in substance and effect" said or did say, is by no means the same, as by what it is averred he said he "merely meant or imported," a certain result or effect of his language uttered. In our opinion the averment is radically different from what appellant contends it should be held to be, and to hold as he contends, we think, would do violence to the language used.

As we further understand appellant's contention, it is, if the pleading had left off the word "effect," and averred he (Joe Martin) did, etc., say "in substance" the following, then the pleading would have been good. In our opinion, averring he did say "in substance and effect," ought not, and cannot reasonably, he held to mean that what is then averred he said is "merely the meaning or import” of the language actually used.

Neither the case of Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340, nor Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, mentioned by appellant, have any application to the question herein. Neither of those cases

such as will enable the accused to plead the
"The certainty required in an indictment is
judgment that may be given upon it, in bar of
any prosecution for the same offense."
Article 460 is:

"An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment."

"The provisions of this Code shall be liberally construed, so as to attain the objects intended by and punishment of crime." Article 25, C. C. P. the Legislature: The prevention, suppression

Appellant truly says, "it is not necessary it is necessary only to set out substantially to set out the language exactly or literallythe language." And that, and that only, was

what was done in said information.

information was good and valid.

The judgment is affirmed.

The

DAVIDSON, J. (dissenting). The charging part of the information is as follows: "One Joe Martin did then and there orally, falsely and maliciously, and falsely and wanton

The other questions are not discussed. The judgment ought to be reversed, and the prosecution ordered dismissed. This was written as the original opinion in this case, but the majority, not agreeing to it, took the case and wrote an affirmance.

ly impute to one Elner Stephens, then and there [ information does not sufficiently charge slanan unmarried female in this state, a want of der, and must be held defective. chastity, in this, to wit: He, the said Joe Martin, did then and there, in the presence and hearing of G. D. Smith, falsely, maliciously and wantonly say of and concerning the said Elner Stephens, in substance and effect the following: That Elner Stephens was all out of shape and that John Robison had left the country. That old man Stephens had written him, Robison, a note that he, Robison, would have to marry her or take a load of shot. That he, Joe Martin, had told him, Robison, that there was no use of his going because it could be proved that others had been there besides him, Robison."

Outside of the innuendo matters, this is the charging part of the information.

CHAMBERS et al. v. ROBISON, General
Land Office Com'r et al. (No. 2745.)
(Supreme Court of Texas. Oct. 13, 1915.)
PUBLIC LANDS 173-SALES-FORFEITURE.

Under Rev. St. 1911, art. 5423, providing that if interest due on an obligation for purcommissioner shall indorse on the obligation, chase of public land remains unpaid the land "Land forfeited," and cause an entry to that effect to be indorsed on the account kept with "thereby" be forfeited, indorsement on the obthe purchaser, and "thereupon" said land shall ligation, without the entry on the account, is insufficient for a forfeiture.

173.]

Original mandamus proceedings by Mrs. Lillian Chambers and others against J. T. Robison, Commissioner of the General Land Office, and others. Writ granted.

The attack is made in various ways upon this information, the substance of which is it does not sufficiently charge a violation of the slander statute. The contention is, in order to charge the offense of oral slander the words used in the imputation of slander must be set out, and, if this cannot be done verbatim or exactly, then the words must be substantially set out. The tendency [Ed. Note. For other cases, see Public Lands, not only of the decisions, but all of the text-Cent. Dig. §§ 544–551; Dec. Dig. writers, has been to hold and lay down the rule that the language used in imputation of slander must be set out as used. This rule has been varied slightly to the extent that, where the words cannot be reproduced, they Ramsey, Black & Ramsey, of Austin, and may be substantially stated. This has been Tatum & Tatum, of Dalhart, for relators. the rule in Texas. The authorities are nu- B. F. Looney, Atty. Gen., and G. B. Smedmerous and might here be mentioned, but ley, Asst. Atty. Gen., for respondents. Geo. Mr. Branch has collated the cases in his val- P. Harris, pro se. uable work on Criminal Law, in section 602, and following sections, except those cases PHILLIPS, C. J. The case concerns a which have been decided since the publica- forfeiture by the Commissioner of the Gen. tion of his work. The case of Barnett v. eral Land Office of the sale of four sections State, 35 Tex. Cr. R. 280, 33 S. W. 340, might of public school land. The validity of the be referred to as one of the leading cases forfeiture is the only question presented for and one of the best-considered cases.

It was

decision.

written by Judge Hurt when he was presid- The land was originally awarded and sold ing judge of this court. The Barnett Case was reviewed in rather an exhaustive opinion by Judge Harper in Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, and approved. See, also, Neely v. State, 32 Tex. Cr. R. 371,

It was conveyed by to J. M. Patterson. him to B. H. Park, the former husband of Mrs. Chambers and the father of the other relators, who became the substitute purchaser in accordance with the law. Park died intestate in 1906. The sale preserved its 23 S. W. 798. Where a rule has been well settled, followed, and acquiesced in by the good standing until November 1, 1913, when bench and bar, citation of numerous author- default was made in the payment of the ities are not necessary, nor would it be ad- annual interest due upon Park's obligations to the state. Because of this default, the comvisable to alter or change those decisions. missioner on August 4, 1914, duly indorsed Now, upon the face of this information it is on the obligations of Park on file in his clear that the language was not set out, nor office the words, "Land forfeited," and placed attempted to be set out either exactly or in the land upon the market for resale. It was substance. The language in charging says resold to the co-respondent, George P. Har"in substance and effect." The effect of the ris, August 10, 1914, upon his application to language is not sufficient. The effect of the purchase. On August 12, 1914, the relators imputation is the thing to be decided. It may made written request for the reinstatement or may not impute a want of chastity. The of their claims, paying into the treasury the imputation must be found in the language it- full amount of the interest then due, for self. Sometimes when the words used are which the official receipt of the commissioner obscure, innuendo or explanatory averments was given. At no time prior to August 12, may assist the pleader, but the words must 1914, did the commissioner cause an entry be set out at least substantially, and not the of the forfeiture to be made on the account effect of the substance of the words. The in his office kept with the purchaser, Park.

As to one of the sections, such an entry had never been made. On the accounts for the other three sections, it was made, but some days after the sale of the land to Harris and the filing of the relators' request for reinstatement.

shall be performed as a condition for the accrual of a forfeiture, it is difficult to find any stable ground for holding that the performance of one of them is a substantial observance of the dual requirement. There could be no warrant for thus ignoring a plain This proceeding has for its purpose the re- provision of the statute unless it be true that instatement of the purchase of the land by the act performed clearly accomplishes all Park upon the records of the Land Office, that could have been reasonably intended by and the cancellation of its sale to Harris. the other requirement. This, in its result, If the forfeiture was invalid, the relators would mean that the requirement ignored are entitled to the writ of mandamus for was no essential part of the law, and in its which they pray, since, in that event, the administration could be dispensed with as land stood unforfeited, in law, at the time surplusage. of the transaction with Harris and the filing of the request for reinstatement; and, no rights of third parties having intervened, the relators were entitled to have their claims reinstated upon the official records upon the filing of their written request to that effect and their payment into the treasury of the full amount of the accrued inter

est.

Article 5423, Revised Statutes 1911. The provision of the law governing such forfeiture on account of default in the payment of interest is that found in article 5423, and is in the following language:

"If upon the first day of November of any year any portion of the interest due on any obligation remains unpaid, the Commissioner of the General Land Office shall indorse on such obligation, 'Land forfeited,' and shall cause an entry to that effect to be made on the account kept with the purchaser; and thereupon said land shall thereby be forfeited to the state without the necessity of re-entry or judicial ascertainment, and shall revert to the particular fund to which it originally belonged, and be resold under the provisions of this chapter, or any future laws."

That a forfeiture does not accrue under the statute except as the result of the performance by the commissioner of the acts enjoined is plain. Upon the default he is required to make the indorsement, "Land forfeited," upon the purchaser's obligation, and, in addition, there is enjoined as his duty the causing of an entry to that effect to be made on the account kept with the purchaser. "Thereupon" the land becomes "thereby" forfeited to the state, which means, of course, that it does not become forfeited until these things are done. While a strict compliance with the law in respect to the facts upon which the forfeiture proceeds is required, the rule of decision is that an exact and literal compliance with these provisions relating to the indorsement and entry is not necessary. A substantial compliance with them will suffice to effect the forfeiture. Brightman v. Comanche County, 94 Tex. 599, 63 S. W. 857; Hoefer v. Robison, 104 Tex. 159, 135 S. W. 371. The question here is whether, making the indorsement of forfeiture upon the obligation, alone, amounts to a substantial compliance.

Where a statute clearly provides that two distinct acts of this nature, which, though of the same general character, have to do with distinct and different official records,

Both the indorsement upon the obligation of the purchaser and the entry on his account are required by the statute only as authentic evidence of the forfeiture. But, while this is true, the statute is clear in its declaration that a forfeiture does not accrue until it is thus evidenced. It should be assumed that the Legislature had a purpose in extending the requirement as to the method of evidencing the forfeiture beyond the mere indorsement upon the purchaser's obligation. It is evident that that was not deemed a

sufficient authentication of the forfeiture. For that reason the additional requirement that an entry to the same effect shall be made on the account was imposed. It was intended, in other words, that the forfeiture should in this manner be doubly evidenced, for the purpose of greater certainty and affording a more permanent and enduring record. We are not at liberty to construe out of the statute a provision which it is manifest was written into it to accomplish a distinct legislative purpose, and which it is clear was regarded as necessary to completely effectuate that purpose. The statute is not substantially complied with where only one of the requirements is observed. A substantial compliance with both of them is necessary.

To sustain the contention that the indorsement in this case upon the obligation amounted to a substantial observance of both requirements of the statute, the respondents rely upon the cases of Brightman V. Comanche County and Hoefer v. Robison, supra. Neither of these cases sustain the position. In the former the purchaser's obligation was not in the Land Office at the time of the declaration of the forfeiture, and under the condition of the law at that time was not required to be kept there. It was in the treasurer's office, its lawful custodian; and it was impossible therefore for the commissioner to make the indorsement upon it. The application, affidavit, field notes, and receipts of the treasurer, were archives of his office, and were in his custody, contained in the file wrapper pertaining to the purchase. In lieu of making the indorsement upon the obligation, the commissioner, under this condition, made the indorsement upon the file wrapper. It was held that this was