#### Santos DE LA PAZ, Appellant, v. The STATE of Texas, Appellee.

No. 27552.

Court of Criminal Appeals of Texas.

May 18, 1955.

' ' Hyde, Barber p & Shi reman, Corpus Christi, Truett' Barber arid Wm. H. Shire-man, Corpus Christi, for appellant.

E. James Kazen, Dist. Atty., Laredo, Leon Douglas, State’s Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for libel'; the • punishment, six months in jail.

:The only serious question raised is as to the sufficiency of the evidence in regard to the identification of the appellant as the person who committed the .offense.

The indictment charges that -Santos de la Paz was the publisher of the newspaper “La Verdad” and published the libelous .statement with -intent - to injure M.- J. Raymon,d. - .

Appellant is the person who' 'was brought to trial under said indictment and who *102answered to the name of Santos de la Paz when the case was called.

The state introduced in, evidence an exhibit which contained the masthead of a copy of the newspaper La Verdad'and the libelous article. - The exhibit showed the 'ñame of the publisher of the newspaper as Santos de la Paz, and also that Santos de la Paz was the editor.

Testimony was offered to show the sale and distribution of said issue of the newspaper La Verdad in Webb County, Texas.

Under the provisions of Art. 1278, V.A. P.C., the publisher of ‘the newspaper is deemed guilty of making and circulating the libel until the contrary is made on the trial to appear.

This being true, it remained only for the state to prove that the appellant, Santos de la Paz, was The same Santos dé la Paz whose name was carried-as the publisher of La Verdad, or to offer evidence identifying appellant as the publisher of said newspaper.

The state calls attention to the fact that at no time did appellant or his counsel suggest that he was not the Santos de la Paz -who was - the publisher of the. newspaper La Verdad, or that he was another Santos de la Paz.

The burden is on the state in any criminal prosecution to prove beyond a reasonable doubt that the accused committed the criminal act charged.

In Mayo v. State, 156 Tex.Cr.R. 26,238 S.W.2d 777, the defendant was not identified as the “Mr. Mayo” who made the impression for dentures which constituted the ■alleged practice- of dentistry. The state took the -position that in as much as the record failed to affirmatively reflect that the identity of the accused was made an issue at the trial, this question could not be raised on appeal.

In overruling this' *contention*we said: “The state was under the burden of showing. that thi§ appellant was the man -.who committed the offense charged. Unless and until th.e s.tate satisfied that burden, the guilt of .this appellant has not been shown.”

Gandy v. State, 139 Tex.Cr.R. 140, 139 S.W.2d 275, also supports the holding that the accused must be identified as the person who committed the offense.

In view of another trial, it is deemed advisable to discuss appellant’s attack upon the indictment.

The indictment set forth the alleged libelous publication and, in connection with certain -statements, therein contained innuendo averments as to the meaning thereof and that they referred to M. J. Raymond, who -it was alleged was the person to whom the publication referred.

It was appellant’s contention that these innuendo averments were not authorized by the publication but went further and extended, without authority, the meaning of the language employed in the statement.

We are in accord with appellant’s contention that an innuendo averment cannot be used for the purpose of enlarging the language tised and thereby to create something new and not. contained in the language or words .used. . We do not agree, however, that the innuendo averments here are subject to the rule stated or that they are not proper. In fact, it is our conclusion that the publication, upon its face, is libelous, for a reasonable construction thereof authorizes no other conclusion but that it charges that M. J. -Raymond had embezzled and misapplied funds of the county. In this connection we cannot overlook the fact that appellant made no effort to justify or establish the publication as being true, notwithstanding Raymond’s positive denial of the truth thereof.

The evidence is deemed insufficient to sustain the conviction for" the reason stated.

The judgment is reversed and the cause is remanded.

..Opinion approved by the Court.