Jack Seal v. The State.
Criminal Law — Slander — Plea of Former Conviction.
A plea of former conviction to an indictment for slander, which sets out the words charged in the affidavit on which the defendant was convicted in a justice of the peace court that vary materially from the words stated in the indictment, is bad.
Appellant, Jack Seal, was indicted in tbe Circuit Court of Hancock county for slandering one .Adeline Whitfield. He was *451charged in tbe indictment with having of and to said Adeline 'Whitfield said: “Yon are a damnec| lying bitch.”
He pleaded a former conviction in °a justice of the peace court of the same offense and the payment of ‘a fine. The affidavit in that case charged that defendant “did then and there call her, the said Adeline Whitfield, a God damn liar and told her "he would knock her down.”' A demurrer to this plea was sustained.
Seal was convicted and sentenced to imprisonment in the county jail for five days and appeals.
*452Appealed from Circuit Court, Hancock county, James S. Hamm, Judge.
Affirmed,
March 5, 1883.
Attorneys for appellant, Oalhuon & Green.
Attorney for State, T. G. Gatchings, Attorney-General.
Brief of Oalhuon & Green:
The plea was good. The fact that the words charged as spoken were not identical cannot be material, where the offense is averred to be the same. Proof would have shown the real facts as to this.
*453If tbe occasion is tbe same, but oue criminal offense can be predicated of it. It is not allowable to split up one denunciation into two or more slander prosecutions. If a man, in tbe same breatb, be called lair, tbief, and scoundrel, tbis should not support three indictments.
We submit that Mr. Seal cannot be twice punished for inelagancies of expression in tbe same colloquium, particularly when tbe matter occurred on tbe sea coast, amid tbe material exasperations of mosquitoes, tbe maddening character of which pests, one of your honors judicially knows, and will require no proof of.
Brief of T. C. Oatcbings, Attorney-General:
Tbe words as stated in tbe indictment are: “You are a damned *454lying bitch.” The affidavit before the justice court states that the accused “did then and there call her a God damn liar and told her that he would knock her down.”
The_ indictment would not have been supported by proof of the words set out in the affidavit if there had been a trial. Jones v. Edwards, 57 Miss. 30; Wharton Or. Law, § 2553.
Nor would an indictment charging the words set out in the affidavit be upheld by proving those described in the indictment in this case. If the accused spoke the words stated in the affidavit and not those in the indictment, he was properly punished by the justice, but judgment in that proceeding cannot be pleaded here. Ilis defense must be that he did not speak the words charged in the indictment; not that he did speak them, but has already been punished for doing so.
If he did speak the words set out in the indictment, and not those in the affidavit, he cannot escape prosecution under the indictment, by reason of the fact that he plead guilty of having spoken words which he, in fact, did not speak.
The demurrer was, therefore, properly sustained to the plea.