¶1 DISSENTING OPINION.
¶2 The opinion of the court sets out the indictment and the objections thereto. This brings in review for the first time the Act of 1899 (see Acts Twenty-sixth Legislature, page 215), ■defining and punishing the offense of white-capping. I quote the first ■section of said act, as follows: "Any person who shall post any anonymous notice, or make any threats or signs as skull and cross bones, or shall by any other method post any character or style of notice or threat to do personal violence or injury to property on or near the premises -of another, or who shall cause the same to be sent with the intention of interfering in any way with the right of such person to occupy said premises or to follow any legitimate occupation, calling, or profession, ■or with the intention of causing such person to abandon such premises, or precinct, or county, in which such person may reside, shall be deemed .guilty of the offense of white-capping, and upon conviction therefor shall be punished by confinement in the State penitentiary for any period of time not less than two years, nor more than five years.”
¶3 It will be seen from an inspection of the indictment, that it charges the commission of the offense to consist in appellant’s causing to be sent to the prosecutor, in a letter, the following anonymous picture or effigy, with the words written above the same, to wit:
¶4 "Jim Owens went to Hell June 20, 1900.”
¶6 It further charges that same was sent to the prosecutor, Jim Owens, with the intention of causing him to abandon his said premises, etc., and to *38 interfere with his pursuing his legitimate occupation, he being a farmer and stockman. I do not think the indictment charges a complete offense, because it fails to set out all of the essential elements of the offense as prescribed by the statute. Nor do I think the indictment is sufficient, because it fails to allege by explanatory averments the character or description of the sign or effigy set out in the indictment.
¶7 The first proposition involves the construction of the white-capping statute. A majority of the court hold, as I understand from the opinion, that there are two distinct character of offenses defined in the statute. One is an anonymous notice or sign posted or sent, implying a threat to do personal violence to another or injury to his property; and the other is an anonymous notice or sign posted or sent with the intention of interfering with one’s right to pursue his occupation, or to occupy his premises, etc. While, under the construction I place upon the statute, it requires both of the above to constitute the completed offense; that is, the anonymous notice or sign must imply a threat to do personal violence to another, or injury to his property, and must be posted or sent with the intent to interfere with or cause one to abandon his calling or his premises. If the construction placed on this statute in the opinion is correct, then it is not an offense to send or cause to be sent an anonymous notice or sign threatening to do personal violence to another or injury to his property, for the word “post” only is used in this connection. Consequently, to be an offense, such sign must be posted on or near the premises of another, and the sending of it would not constitute an offense. And again, the posting of such sign with intention of interfering' with one in his calling or in the occupation of his premises would not be an offense, because the word > “sent” is used in this connection. As I view the section in question, the first part describes the character of sign or notice which must be posted or sent; that is, it must imply a threat to do personal violence to another, or injury to his property; and, in addition to this, it must be sent or posted with' the intention of interfering with one’s right to his premises, or his right to follow his occupation, etc. To bear out this construction, it will be seen that the statute, after first describing the character of anonymous notice which may be posted, then proceeds as follows, “Or who shall cause the same to be sent with the intention of interfering,” etc. Now,, what is meant by the use of the language “the same”? Evidently it must refer to the character of anonymous notice or sign previously described. And if this must imply a threat to do personal violence to another, or injury to his property, then it follows that the character of notice sent, as well as the character of notice posted, must be, to do personal violence to another, or injury to his property. And this character of notice must be posted or sent with intent to cause such person to abandon his premises, etc., or quit his calling or occupation. I gather from the language of the act that it was not within the legislative intent to punish one for posting or sending an anonymous notice merely, but an anonymous notice calculated to frighten or terrify; and it was ap *39 prehended that nothing short of a sign or notice to do personal violence or injury to property would terrify or frighten one from his premises, or from pursuing his vocation. In other words, the Legislature took no account of anonymous signs or notices of an innocent character, but, in order to be a completed offense, such anonymous sign or notice must be of a character threatening personal violence or injury to property, and also be intended to interfere or frighten one from his premises or from following some legitimate occupation. It occurs to me that this construction given the statute follows logically from the words used and having due regard to all the provisions of the section. Any other construction, it seems to me, is fraught with difficulty, and runs foul of that provision of our code which says that "no person shall be punished for an offense which is not made penal by the plain import of the words used.” If this be a correct interpretation of the statute, then the indictment should have been quashed because it failed to charge an offense, in that it did not allege the anonymous notice or sign implied a threat of personal violence or to injure the property of the prosecutor. Moreover, I believe a majority of the court are clearly in error in holding that it was sufficient merely to set out the picture or sign- without any explanatory averments giving a description thereof. True, the picture or drawing, as contained in the indictment, looks like it might be a coffin, and the object near by may be intended as the effigy of a man with a rope around his neck, suspended from a post or tree, and the whole taken together, in connection with the writing, to wit, “Jim Owens went to Hell June 30, 1900,” might be suggestive of a threat on the part of the sender to cause the death of Jim Owens. This, however, might involve, in the first instance, the skill of the artist; secondly, the skill of the copyist in pleading. Suffice it to say, the indictment leaves this to surmise or speculation. I do not believe a matter of this character should be left to be gathered by inference or intendment, but should be distinctly alleged in the indictment. I have been unable to find any case in point. But I take it in matters of this sort we can consult the analogies of the law as to pleading in similar cases. As was said by Judge Willson in Stichtd v. State, 25 Texas Criminal Appeals, 420,—which was a question of pleading in a case of slander,—“that the rules in civil cases with equal, if not greater force, are applicable in criminal cases.” That was the case where the slander was uttered in a foreign language, but the indictment set out the words purported to have been spoken in the English language. It was held there was a variance; that the very language used in the foreign tongue should have been set out, and then a correct translation thereof made, and included in the indictment. To the same effect, see 1 Bish. Crim. Proc., , sec. 564; 13 Enc. of Pl. and Prac., p. 48. In civil actions involving libel and slander, where the same consists in a defamatory effigy or picture, the picture is not set out at all by tenor, but it is described; and what it referred to is distinctly alleged. And the same rule is applicable to criminal cases. Newall, Defam., p. 984 (which contains *40 the form adopted from Archibald); 2 Bish. Crim. Proc., 794b, 795; Bradstreet Co. v. Gill, 72 Texas, 118. And I also note the authorities hold, where the libel consist of a picture or effigy, care should be taken to show by proper innuendoes and averments the libelous nature of the transaction, and its especial reference to the plaintiff. 13 Am. and Eng. Enc. of Law, p. 394; Odgers, Sland. and Libel,-130. I take it from these authorities that a fair construction of this statute would require a description of the picture or effigy and its meaning, and its especial reference to the prosecutor should have been shown. The indictment being defective in this respect, as well as on the proposition previously discussed, I believe it should have been quashed by the court below; and that we should here reverse the case because the indictment fails to charge any offense.