limit the injury or atone for the wrong, nor is it to ascertain the correct definition of the words used, but simply to determine how the hearers understood them." It will be noticed that one of the grounds assigned is with reference to the intentions of the party uttering the words, and it is stated that these are immaterial. This may be true in a civil case, as to proof of an element of damage, but in a criminal case the intention of a party uttering the words is the very gist of the offense. Mr. Bishop, than whom there is no higher authority in all questions of criminal law (2 Bishop's Criminal Procedure, sec. 793), says: “An innuendo is an explanatory averment of the meaning. It charges no fact, and it does not admit of being sustained by evidence; the pleader, having in the colloquium and elsewhere stated all the extrinsic and other facts desired, introduces into his recitation of the libelous words, when necessary, the expresssion 'meaning so and so,' and this is called an 'innuendo.' Alleging nothing, it neither adds to nor qualifies any previous allegation; but if, for example, a word has two significations, and the preceding averments have laid the foundation for the one claimed, the innuendo may say that this is the one meant." "Still the jury, to convict, must be satisfied that the meaning of the libelous words is what they allege it to be. This is a question for them, not for the court": 2 Bishop's Criminal Procedure, sec. 799.

It will be observed in this case that the words charged in the indictment were not only the words "monkeying with her," but in the same connection, and a part of the same sentence, "and doing with her as he pleased"; and the evidence of the witness not only shows the use of such words in that connection, but witness also stated that, as a part of the expression of the defendant, and in connection with said words, the defendant said that the party spoken of was "ramming it to her." In our opinion, the words spoken were not ambiguous, and could, to the ordinary understanding, have but one signification, and required 5 no explanation. They were actionable per se in a civil suit: Elam v. Badger, 23 Ill. 498; Townshend on Slander and Libel, sec. 172. According to Mr. Bishop (2 Bishop's Criminal Procedure, sec. 799): "It is the duty of the jury to construe plain words and clear allusions to matters of universal notoriety according to their obvious meaning, and as everybody else who reads them must understand them." In order to enable the jury to arrive at the meaning of a local phrase not well defined and in general use, an innuendo may become necessary; and, in such case, witnesses may testify as to the signification or meaning of

such words in the locality: Commonwealth v. Morgan, 107 Mass. 202. And, moreover, the courts all agree that it is competent to prove facts and circumstances attending the speaking of the words, the situation of the parties, and their relations to the subject matter or occasion of the slander, and any other portions or all of the same conversations. This testimony is admitted in order to enable the jury to correctly determine the ultimate fact, to wit, in what sense the words were uttered. In this case, while we hold that it was not proper for the court to have admitted the testimony of the witness as to what he understood the defendant to mean by the words used, yet we fail to see how the defendant suffered any prejudice thereby, as the words themselves clearly and unequivocally indicated the meaning appellant intended to convey; and the jury trying the case could have arrived at no other conclusion in regard to the defendant's meaning in using such language: Barton v. Holmes, 16 Iowa, 252. The motion for rehearing in this case is overruled.

Judges all present and concurring.

Slander-Evidence to Support Innuendo.

A majority of the cases sustain the doctrine that an innuendo in libel or slander is an explanatory averment of the meaning, which charges no fact and does not admit of being sustained by evidence. "The office of an innuendo is entirely indicatory-intended to point out and refer to what has been before stated-and, for that reason, no evidence can be introduced to support or explain an innuendo, it being used as a mere convenience, in composition, to relieve the mind from confusion as to names and other matters that have been frequently repeated, and sometimes have the same sound. The difference between an averment and an innuendo will appear from this illustration: When a paper has been ironically written of another, the complaint should set out the paper as it is, with an averment, that it contains a latent and different meaning from its literal purport, and then the alleged different meaning should be precisely set forth. An innuendo, afterward, may refer, in a running commentary, to the previously explained meaning, as often as it occurs in recital. As where one is called a white man when the meaning was that he had colored blood in him. Here the averment should explain the meaning, and the innuendo would call the attention to the true meaning, when there was an occasion to mention it": State v. Henderson, 1 Rich. 179-186. In Van Vechten v. Hopkins, 5 Johns. 211, 4 Am. Dec. 339, Mr. Justice Van Ness said: "There is another point in the case upon which, in the view I have taken of the subject, it would not be necessary for me to express an opinion. As it may, however, embarrass the parties on a future trial, if there should be any, it may as well be disposed of. I allude to the exclusion by the judge of the testimony of the witness who was called to say, that from reading the libel, he applied it to the plaintiff. This evidence

was properly overruled. The intention of the defendant is not the subject of proof, by witnesses in the way here attempted. It is the mere opinion of the witness, which cannot, and ought not, to have any influence upon the verdict. I consider the evidence as inadmissible, because it goes to prove the correctness of an innuendo. This kind of evidence, I know, has frequently, though erroneously, been admitted at nisi prius. From what has been said before of the Lature of an innuendo, technically so-called, it is clear that it cannot be the subject of proof by witnesses. Not so of an averment and colloquium, which introduce into the pleading extrinsic matter, which is the proper subject of proof": Van Vechten v. Hopkins, 5 Johns. 211; 4 Am. Dec. 344-352, containing an extended note on the subject in hand. This doctrine was approved and reaffirmed in Gibson v. Williams, 4 Wend. 320. This was a case for slander instead of libel. In Rangler v. Hummel, 37 Pa. St. 130-133, the court used the following expressions: "It was not competent to prove the special averment that the words were 'spoken of and concerning' the plaintiff, and thus aid the innuendo by the opinion of the witness that the defendant meant the plaintiff in the words used. If this could be done, there would be no use for the innuendo. Its office would be supplied by the oath of witnesses, who would draw the inference from the precedent facts instead of the jury. This is not permissible." This last case was followed in McCue v. Ferguson, 73 Pa. St. 333, where it was held that it was not competent, in an action for slander, to prove, by the opinion of witnesses, the special averment that words spoken in the third person were spoken of the plaintiff. In Pittsburgh etc. Ry. Co. v. McCurdy, 114 Pa. St. 554; 60 Am. Rep. 363, it was again held that it was not competent to aid the innuendo of embezzlement by the mere opinion of witnesses.

In Briggs v. Byrd, 11 Ired. 353, the court said: "When a charge is made by using a cant phrase, or words having a local meaning, or a nickname, or when advantage is taken of a fact, known to persons spoken to, in order to convey a meaning, which they understand by connecting the words, of themselves unmeaning, with such fact, the plaintiff is obliged to make an averment of the meaning of such cant phrases or nickname, or of the existence of such collateral fact, for the purpose of giving point to the words and of showing that the defendant meant to make the charge complained of, and, in such cases, there must also be an averment that the words were so understood by the persons to whom they were addressed, for, otherwise, they are without point and harmless. These averments are traversable, and must be proven, and differ entirely from what are called innuendoes, which need no proof, and, in fact, prove themselves, their office being merely to point out the meaning, and give a greater degree of certainty than is usual in conversation or ordinary writing": White v. Sayward, 33 Me. 322, Snell v. Snow, 13 Met. 278, 46 Am. Dec. 730, Gribble v. Pioneer Press Co., 37 Minn. 277, Sternau v. Marx, 58 Ala. 608, and Callahan v. Ingram, 122 Mo. 355, 43 Am. St. Rep. 583, support the doctrine that in libel and slander the innuendo alleged cannot be aided, supported, or explained by the opinion of witnesses. This doctrine has, however, met with severe criticism in some cases, and they absolutely refuse to follow it. Thus

in McLaughlin v. Russell, 17 Ohio, 475, the court expressly refers to Van Vechten v. Hopkins, 5 Johns. 211, 4 Am. Dec. 339, and Gibson v. Williams, 4 Wend. 320, as being bad law, which it refuses to follow, and lays down the rule that in libel or slander, where the words used are ambiguous, witnesses who know the parties and circumstances may be called to state their opinion and judgment as to the person intended, and thus aid the innuendo. To the same effect is Russell v. Kelly, 44 Cal. 641; 13 Am. Rep. 169; Howe Machine Co. v. Souder, 58 Ga. 64; Goodrich v. Davis, 11 Met. 473. The cases which maintain this rule generally hold that in actions for libel or slander, the testimony of the hearers or readers as to the meaning and the sense in which they understood the words is admissible: Nelson v. Borchenius, 52 Ill. 236; Miller v. Butler, 6 Cush. 71; 52 Am. Dec. 768; distinguishing Goodrich v. Davis, 11 Met. 473, and Snell v. Snow, 13 Met. 278; 46 Am. Dec. 730. If the slanderous or libelous words were uttered by indirection, without naming the plaintiff, the opinion of witnesses, well acquainted with the parties and circumstances. are admissible in evidence to show that the plaintiff was the person referred to: Smawley v. Stark, 9 Ind. 386; Mix v. Woodward, 12 Conn. 262. If the slander is not made in direct terms, but by expressions, gestures and intonations of voice, it is competent for witnesses, who heard the expressions, to state what they understood the defendant to mean by them, and to whom he intended to apply them: Leonard v. Allen, 11 Cush. 241.

In slander, if the complaint, by proper averments, states the existence of extrinsic matter to explain the meaning and application of the words spoken, and show their defamatory character, it is competent, when the words are proven, to admit evidence of the understanding of witnesses familiar with such facts, in whose presence the words were uttered, as to their application. The mere general opinion of a witness, derived from reading a libel, or hearing the words spoken, unaided by circumstances within his knowledge, is not competent evidence. But his understanding as to the meaning of the words, and their application to plaintiff, when founded on facts previously known to him, and detailed by him as the foundation for such understanding, is not subject to exception, and is competent to go to the jury, who may adopt or reject it in their discretion: Tompkins v. Wisener, 1 Sneed, 458. The mere opinions of witnesses as to the meaning of a libel or slander, or that it was of or concerning the plaintiff, are not admissible, but if the words are ambiguous and the application doubtful, it must be shown that they were used in the actionable sense, and were applied to the plaintiff, and that the bearers so understood them, and therefore the evidence of the hearers as to how they understood them, is admissible: Smart v. Blanchard, 42 N. H. 137. "The correctness of this rule is not only established by the weight of authority, but is supported by every consideration of justice and sound policy: Russell v. Kelly, 44 Cal. 641; 13 Am. Rep. 171.

IDEM SONANS.-NAMES are to be considered identical which sound alike: State v. Patterson, 2 Ired. 346; 38 Am. Dec. 699, and note. The doctrine of idem sonans applies to names undistinguishable in ordinary enunciation: Barnes v. People, 18 Ill. 52; 65 Am.

Dec. 699, and note. If two names may be sounded alike without doing violence to the power of the letters found in the variant orthography, the variance is immaterial: Pitsnogle v. Commonwealth, 91 Va. 808; 50 Am. St. Rep. 867, and note.

ROBINSON V. STATE.

[34 TEXAS CRIMINAL REPORTS, 71.]

BURGLARY—ATTEMPT TO COMMIT-CONSENT OF PROPERTY OWNER.-It is not consent to the taking of his property for the owner to obtain the aid of a confederate of the accused, who, for the purpose of detection, joins the accused in the criminal act designed by the accused, and attempted to be carried into execution by him.

L. Wood and Mathews & Browning, for the appellant.

74 DAVIDSON, J. This conviction was for an attempt to commit the crime of burglary with intent to steal. Appellant proposed to one Cox, who informed McDowell, the owner of the premises to be burglarized and the money therein situated, of the intended burglary. 75 McDowell replied to Cox by saying, "Just let him [defendant] come along and we will try and catch him, and not insist on his coming, and not encourage him to come; if he comes, let it be of his own free will and accord, and voluntarily." I just said, "Let him come ahead; not to stop him."

There is no conflict in the testimony of McDowell and Cox upon this issue.

Appellant was not induced by McDowell or Cox to commit the crime, but was the instigator and prime mover in the whole affair.

Under this state of case, appellant did not have the consent of the owner to enter his house or to take his money therefrom.

This is a different case from that of Speiden v. State, 3 Tex. Crim. App. 156, and authorities cited. In Speiden v. State, 3 Tex. Crim. App. 156, the defendant entered a bank at the solicitation of a detective rightfully in possession, and with the consent of the owner. There are no such facts in this case.

In Pigg's case, 43 Tex. 108, it was held, that "it is not consent to the taking for the owner to obtain the aid of a detective, who, for the purpose of detection, joins the defendant in a criminal act designed by the defendant, and carried into execution by actual theft": See, also, Johnson v. State, 3 Tex. Crim. App. 590; Allison v. State, 14 Tex. Crim. App. 123; Conner v. State, 24 Tex. Crim. App. 245.