source: Caselaw Access Project

author: BOND, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. THE ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division Two,
    February 6, 1912.
    CONSTITUTIONAL LAW: Secs. 3100, 3101, R. S. 1909. This case is decided upon the authority of State y. Chicago, Burlington and Quincy Railroad Company, 239 Mo. 196, and Secs. 3100 and 3101, R. S. 1909, are held to he constitutional.
    Appeal from Pemiscot Circuit Court. — Ho». H. G. Riley, Judge.
    Abrirme». '

      W. F. Evans, Moses Whybark and A. P. Stewart for appellant.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
   BOND, C.

— The appellant was prosecuted for failing-to run at least one regular passenger train each way every day “between certain regular passenger stations on its line of route in Pemiscot county, Missouri,” as required by sections 3100 and 3101, Revised Statutes 1909. The information was filed on July 8-, 1909, and contains five counts. Each charged appellant during the respective months of February, March, April, May and June with failing to run its passenger trains as prescribed by statute between certain stations and the north boundary line of Pemiscot county. A demurrer was filed under this information on the ground that the sections of the statute upon which it was based were unconstitutional. This was overruled, arraignment was waived, the plea of not guilty entered, and the cause heard by the court sitting as a jury.

The evidence adduced on the trial tended to prove the allegations contained in the several counts of the information. The court found the defendant guilty under each count and imposed a fine of one hundred dollars for each offense. Defendant appealed, and assigns for error the unconstitutionality of the Act of 1907 creating the offense for which this prosecution was had, and that it is also a violation of the Constitution of the United States.

OPINION.

I. In the case of State of Missouri v. C. B. & Q. R. R. Company, 239 Mo. 196, recently decided by this court in Banc, as set forth in the opinion of Judge Botsfokd, selected to determine the same because of the equal division in opinion of the regular judges who sat in the case, each objection made by the defendant in the present case to the validity of the statute under which it was indicted, was considered, and under the majority rulings of the court in that case (opinion of Woodson, concurred in by Valuant and Brown, and opinion of Botsford, Special Judge) it was authoritatively determined, that the statute in question was impregnable to any attack based on the theory that it violated any provision of the State Constitution or any provision of the Constitution of the „ United • States. In accordance with that decision, it is ruled in this case that the points made on the present appeal are not well taken, and that the verdict and judgment of the trial court must be and is in all things affirmed.

Boy, G., concurs.

PER CURIAM.

— Tbe foregmng opinion of Bond, 0., is hereby adopted as the opinion of the court.


author: BLAIR, C. PER CURIAM

text:
    THE STATE v. WILLIAM LAWSON, Appellant.
    Division Two,
    February 6, 1912.
    1. INDICTMENT: Indorsement of Names of Witnesses: New Witnesses at Trial: Notice to Defendant. The names of eight witnesses were indorsed, on the indictment. During the examination of the talesmen on their voir dire the State’s attorney, in open court and in the presence of defendant and his' counsel, read the names of those eight witnesses and announced that there were six others, naming them, who were witnesses. A recess was taken until 2 p. m., when the jury was sworn and one of those whose names were on the indictment testified merely about the locality of the crime charged and then as an expert. No other witness whose name was indorsed on the indictment was called, but five of the six others named during the voir dire were called, and, over defendant’s objections and exceptions,testified in the case. The name of no witness who testified to the facts constituting the offense charged was on the indictment. Held, that the court did not err in admitting the testimony of the new witnesses. The defendant, if he desired to raise the question at all, should have demanded a reasonable time to meet the testimony of the witnesses mentioned when apprised, before the jury was sworn, of the State’s intention to call them. The new witnesses testified to the identical offense charged in the indictment.
    2. -: -: -: Unfair Advantage not Allowed. The State will be allowed to take no unfair advantage of a defendant by intentional concealment of its witnesses.
    3. -: No Names of Witnesses Indorsed. When defendant is advised in advance (for instance, by an entire fáilure to indorse the names of any witnesses) that the State is not fighting in the open, and yet elects to enter the contest under such conditions, he cannot, for the first time, after being defeated, Complain.

      4. INSTRUCTIONS: Every Element of Offense: Reasonable Doubt. An instruction which sets out the facts necessary to constitute the offense charged and tells the jury that if they find these facts they shall find the defendant guilty, is not erroneous because it omits the element of reasonable doubt. Reasonable doubt is fully covered in another instruction. It is not necessary to append to every instruction a clause announcing the rule that the jury must be convinced beyond a reasonable . doubt before they can convict.
    5. -: Evidence: Joint Offense. Defendant was convicted of having set up and kept a crap table and having induced, enticed and permitted divers persons to bet and play thereon. The game was played in a building occupied by a club of which defendant was a member. There was evidence that defendant was nearly always in attendance, that he “cut” a nickel on every bet and delivered this “rake-off” to the president or the general manager of the club’s affairs, who appeared at intervals to receive it. Held, that, under such circumstances, instructions cannot be attacked which submitted the case on the theory that defendant acted in concert with others in committing the offense charged.
    6. GAMING DEVICE: Setting up and Keeping: Charged and Tried as Continuing Offense: Players Named in Indictment: Proof: Instructions. The offense of inducing, etc., persons to bet and play on a gambling device set up and kept by defendant is charged in the indictment as a continuing offense; it is such by nature, and it was tried as such. Therefore, it cannot be said that, because the names of some of those who played were set out in the indictment, the court in its instructions should have told the jury that unless they found defendant guilty as of the particular time when the named persons played, they should acquit him, nor can it be said that the court should not have instructed the jury (as it did) to return a verdict of guilty if they found defendant had set up and kept the crap table at any time within three years prior to the return of the indictment. No motion to elect was made and no instruction was asked restricting the jury to a particular time.
    ?. CONTINUING OFFENSE: How Charged and Proved When No Abatement. An offense continuous by nature may be charged as of one day and proved as a continuing offense provided no abatement is directly sought.
    8. -: Indictment: Continuando. That fragments of a formal continuando appear in the indictment is of no consequence, and they may be treated as surplusage if the offense is continuing in its nature and therefore provable under a simple .charge as of a particular day. '

      9. KEEPING GAMING DEVICE: Instructions: Mere Presence as Player. The trial court’s failure to give a specific instruction that defendant could not be convicted if he did no more than participate in the game as a player, was not reversible error under the circumstances of this case. The jury was told by other instructions that the mere presence of a person at the scene of an offense did not justify his conviction as a principal, and that it was sufficient “if the evidence satisfied the jury beyond a reasonable doubt that the defendant, or other persons acting jointly with him, had charge of and control of” the device.
    Appeal from St. Louis City Circuit Court. — No». Wilson A. Taylor, Judge.
    Affirmed.

      John A. Gernez and Thomas J. Rowe, Jr., for appellant.
    (1) The court erred in permitting the testimony of witnesses whose names were not indorsed on the indictment, to stand, and should have sustained defendant’s plea in abatement. The unfair advantage taken of defendant by the circuit attorney under the circumstances was self-apparent and should have been condemned by the court and a verdict obtained by such means should not be permitted to stand. R. S. 1909, sec. 5097; State v. Roy, 83 Mo. 268; State v. Barring-ton, 198 Mo. 66; State v. Nettles, 153 Mo. 469; State v. Steifel, 106 Mo. 133; State v. Meyers. 198 Mo. 246; State v. Henderson, 186 Mo. 482. As to propriety of remedy, see 1 Bishop, New Crim. Proc., sec. 113. (2) (a) There was no warrant for instructing the jury on the theory that defendant had committed the alleged offense jointly with others, as in instructions 1, 2 and 3. (b) Instruction 3, with reference to defendant acting as an accessory, is unwarranted by the evidence. These three instructions are misleading and deceptive, inviting the jury to the consideration of a situation that did not exist. (3) Instruction 1 was erroneous in that it left out the element of “reasonable doubt” in the jury’s consideration of the evidence and in their finding of a verdict. It cannot be cured by a subsequent instruction; and, even if it could, it has not been done. State v. Helton, 234 Mo. 559.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Section 5097, R. S. 1909, provides that the names of all material witnesses must be indorsed upon the indicment. This section also provides that “other witnesses may be subpoenaed or sworn by the State.” This section has been under consideration many times by this court. In the Griffin case, 87 Mo. 612, it was held, the objection that the names of material witnesses for the State were not indorsed upon the indictment should be made upon the motion to quash, citing State v. Roy, 83 Mo. 268. Appellant filed two motions to quash this indictment, and we do not find this ground alleged in either motion. This motion was under discussion and consideration in the recent case of State v. Barrington, 198 Mo. 66, in which an exhaustive review of the former cases was had, and the construction of the statute settled, as follows : First. If no witnesses were indorsed upon the indictment, then the indictment should be quashed upon motion, unless the prosecuting attorney offers to supply such omission, in which case the defendant should have a reasonable time after the omission had been supplied to prepare his defense. Second. If the State should indorse some of the witnesses on the back of the indictment, and then purposely refrain from indorsing the names of material witnesses on the back of the indictment with the view of taking an undue advantage of the defendant, then the court would he warranted in quashing the indictment, or requiring the prosecuting attorney to supply such omission and give the defendant a reasonable time in which to meet the testimony of such material witneses, but, by no means, does this statute contemplate that the State shall be denied the right to introduce on the trial, witnesses whose names are not indorsed on the indictment. Furthermore, the presumption must be indulged that the indictment was predicated upon the testimony of witnesses whose names are indorsed upon it, and should the State, after the indictment is returned, discover additional witnesses who are material, the statute contemplates that such witnesses may be subpoenaed and sworn. This adjudication is a complete answer to appellant’s first assignment of error. (2) Appellant asserts that the court erred in giving instructions 1, 2 and 3, in that there was no evidence authorizing these instructions. The evidence tended to prove there was a conspiracy between Jackson, Washington and appellant in running this gambling device, and therefore the instructions were competent. It would have been error if the court had not instructed the jury as in these instructions. State v. Bobbitt, 215 Mo. 10. Instructions as to the guilt of all who acted together with a common intent is proper. State v. Tobie, 141 Mo. 556; State v. Sykes, 62 Mo. 80; R. S. 1909, sec. 4898. Instruction 1 cannot be legally criticised, as it follows the statute and contains all the elements necessary to constitute the crime, as defined in the statute and contained in the indictment. Where all the propositions of law arising on the facts developed in evidence are covered by the instructions of the court they are sufficient. State v. Crittenden, 191 Mo. 17; State v. Tobie, 141 Mo. 547; State v. Rufus, 149 Mo. 406. Instruction 2 is usually given because it is not necessary that the appellant, and those acting with him, own the table mentioned in the indictment and in the evidence, bnt it is sufficient if he, or other persons acting jointly with him, had charge and control of the same. R. S. 1909, sec. 4750. Instruction 3 is proper and founded upon the evidence. R. S. 1909, sec. 4898; State v. Schuchmann, 133 Mo. Ill; State v. Sykes, 62 Mo. 80; State v. Duffy, 124 Mo. 1.
   BLAIR, C.

— Defendant was convicted in the circuit court of the City of St. Louis of having set up and kept a crap table and having induced, enticed and permitted divers persons to bet and play thereon.

The evidence tended to show that a crap game was conducted at 2309 Chestnut street, St. Louis, for many months prior to the time the indictment was returned. The game was played on a covered pool table in the basement of a building occupied by the Modern Horseshoe Club, of which club defendant was a member. Defendant himself testified that a crap game was there conducted in the manner described, but denied having anything further to do with it than occasionally to participate as a player. There was evidence, however, that he was practically constantly in attendance, and that he “cut off” a nickel out of every bet made, and that this “rake-off” he delivered to the president or the general “manager” of the club’s affairs, who appeared at interval's to receive it. Defendant also settled disputes as to the rules of the game, kept order, and adjusted differences of various kinds which arose among the players. An expert was called and detailed the intricacies and mysteries of “crap-shooting. ’ ’

I. The names of eight witnesses were indorsed on the indictment. During the examination of the talesmen on their voir dire, the assistant circuit attorney, in open court and in the presence of defendant and his counsel, read the names of the eight witnesses mentioned and announced' that in addition to these there were six others, Clifford Clark, William Ransom, James Thornton, Jesse Crow, Henry Harris and one Sydnor, who were witnesses ■•in the case and inquired if the members of the panel had an acquaintance with any of the fourteen. A recess was then taken until two p. m., at which hour the jury was sworn and officer Wells, whose name appeared in the list of witnesses on the indictment, was called and sworn. This witness testified as to the name and location of the clubrooms in which the offense charged was committed, and gave a general description of the exterior of the building at 2309 Chestnut street. He also testified as an expert, describing in detail the manner in which the game of “craps” is played.

No other witness whose name was indorsed on the indictment was called, but five of the six others named during the voir dire examination of the jury were called, and, over defendant’s objections and exceptions, testified in the case.

On this state of the record it is contended that the court erred in admitting the testimony of these witnesses.-

The statute (Sec. 5097, R. S. 1909) requires that “When an indictment is found by the grand jury, the names of all the material witnesses must be indorsed upon the indictment” and provides that while “other witnesses may be subpoenaed or sworn by the State, . . . no continuance shall be granted to the State on account of the absence of any witness-whose name is not thus indorsed on the indictment, unless upon the affidavit of the prosecuting attorney showing good cause for such continuance.”

While this statute has been frequently construed by this court, in no previous case has the situation presented been like that in this. Hero the name of no witness who testified to the facts constituting the offense charged was on the indictment.

Though the statute expressly provides that witnesses other than those whose names are indorsed may be subpoenaed and sworn and does not expressly provide, for lack of compliance with its provisions, any other penalty than the limitation upon the State’s right to a continuance, this court, since 1884 (State v. Roy, 83 Mo. l. c. 269, 270), has consistently held that the statute was passed for the purpose of giving to “the person criminally charged the opportunity of knowing who were his accusers, and by whom the State expected to establish the charge preferred, in order that he might prepare, not only to meet the charge, but'those upon whom the State relied to prove it.”

Thus interpreting the statute in harmony with its evident spirit, this court has frequently announced and applied the rule that no unfair advantage of a defendant will be permitted to be taken by intentional concealment of the names of the State’s witnesses. An ambuscade of this kind will not be tolerated. [State v. Nettles, 153 Mo. l. c. 470; State v. Shreve, 137 Mo. l. c. 5; State v. Myers, 198 Mo. 247.]

On the other hand, if the defendant is advised in advance (for instance, by an entire failure to indorse the names of any witnesses) that the State is not fighting in the open, and elects to enter the contest under such conditions, he cannot, for the first time, after being defeated, complain. [State v. Griffin, 87 Mo. l. c. 612; State v. O’Day, 89 Mo. l. c. 560.]

In this case defendant and his counsel were advised in open court, prior to the swearing of the jury, that the witnesses who were used would be used on the trial and no suggestion was made of surprise, nor was any motion to quash, request for delay, or demand for continuance made. On the contrary, not until the jury had been sworn and defendant thus put in jeopardy, and the witnesses called, did defendant suggest that he intended to rely npon the absence of their names from the indictment for their exclusion. This is not a case in which the calling of the witness first advises defendant of the State’s intent to nse him and consequently affords the first opportunity to challenge his competency. In this case, defendant, if he desired to raise the question.at all, should have-availed himself of the rule laid down in State v. Barrington, 198 Mo. l. c. 70, and should have demanded a reasonable time to meet the testimony ‘of the witnesses mentioned when apprised, before the jury was sworn, of the State’s intention to call them.

Having been notified by the announcement of the-assistant circuit attorney before the jury were sworn, that certain witnesses whose names were not on the indictment were to be called for the State, defendant had all the notice he would have had if the names had at that moment been added to those on the indictment, so far as concerns the question now before us. The trial court doubtless would have required the indorsement of these additional names had defendant moved for that purpose. After the announcement mentioned, we think that, lacking some motion upon defendant’s behalf, the court was justified in treating the question raised after the jury was sworn exactly as if all the names had been indorsed upon the indictment and that this record shows no error because of the fact that it did so treat it.

That the State would not be-permitted to purposely deceive defendant to his prejudice by taking part of its witnesses before the grand jury and indorsing their names upon the indictment and then in the trial, and without warning; substitute an entirely new list of witnesses, goes without saying. When notified that the witnesses were to be used, defendant had the right to apply for, and in this case it would have been the duty of the court to have given him, on a proper showing, sufficient time to prepare to meet their testimony. He saw fit, doubtless for some good reason, to waive Ms right in this respect and permit the jury to be sworn, whereby the whole aspect of the proceeding was changed. Under these circumstances this case ought not be reversed on this assignment.

It is to be presumed that the indictment was founded upon the testimony of the witnesses whose names were indorsed upon the indictment, but it will not be presumed, in the light of their testimony, that the witnesses called were testifying to'an offense different from that for which the indictment was found, and this is particularly true in view of the conclusion reached in a subsequent paragraph as to the nature of the offense of which defendant has been convicted. The testimony of the witnesses called shows that the offense charged was identical with that to which these witnesses testified even as to the, names of the players so far as they were designated by name in the indictment. Under the circumstances there was no error in the course taken by the trial court.

II. The first instruction given by the court is said to be erroneous because it “omits the element of reasonable doubt,” and the case of State v. Helton, 234 Mo. 559, is cited in support of this contention. The instruction mentioned sets out the facts necessary to constitute the offense charged and tells the jury that if they find these facts they should find the defendant guilty. In another instruction the jury are fully instructed as to reasonable doubt. It has long been held that it is not necessary to append to every instruction given a clause announcing the rule as to the necessity of the jury being convinced beyond a reasonable doubt before they can convict. The decision in State v. Helton, supra, affected that holding not at all. In that case the facts predicated in the instruction condemned were all consistent with the defendant’s innocence and it was for that, and the additional reason that the instruction told the jury to convict if they found’ those facts only, that the case mentioned was decided as it was. The Helton case is no authority for the contention that an instruction requiring the jury to find all the facts necessary to constitute a given offense, which in themselves negative every defense made, is erroneous' simply because it fails to contain a clause as to reasonable doubt — a separate instruction covering that matter fully.

III. Another ground on which the instructions are assailed is that the court submitted the case on the theory that defendant was guilty whether he acted alone or in concert with others.. It is insisted in the briefs that the evidence tended to show no.more than that “the defendant was himself the principal and there was no other person committing the alleged crime whom he aided, abetted, assisted or encouraged.” It is not contended that the statute (Sec. 4898, R. S. 1909) is not broad enough to authorize defendant’s conviction in this case, whether he was found to be a principal, principal in the second degree, or accessory-before the fact, but merely that there is no evidence tending to show that he was, if guilty at all, other than the principal actor and sole offender. A reference to the statement of the facts of the case will disclose our reasons for overruling this contention.

IY. The indictment alleged, among other things, that defendant induced, enticed and permitted certain named persons, and others whose names were to the grand jury unknown, to bet and play “on and by means of the gambling device,” which he is charged with having set up and kept, corresponding in this respect with the information in the case of State v. McKee, 212 Mo. l. c. 142. The evidence tended to show that the game set up and kept at 2309 Chestnut street was run continuously for months prior to the -finding of the indictment, and that not only the persons named in the indictment, but a great many others, playe'd and bet thereat, and that defendant was constantly present.

It is practically conceded that it was not necessary to set out in the indictment the names of the persons who played, but it is insisted that since the names of some of them are set-out a particular offense was thereby individuated, and the State having thus particularized the offense in the indictment, the court in its instructions should have advised the jury that unless they found defendant guilty as of the particular time when the persons named in the indictment played, they should acquit him and that it should not, in the circumstances mentioned, have instructed the jury (as it did) to return a verdict of guilty in ease they found defendant had set up and kept the crap table at any time within -three years prior to the return of the indictment.

It is not contended that evidence as to defendant’s conducting the game at other times than those when the persons named in the indictment played was inadmissible, and such evidence was received without objection. No motion to elect was made at’ any time and no instruction restricting the jury to a particular time was asked by defendant.

It will be observed that the contention now made, which appears in this case for the first time in the reply brief, depends upon the assumption that the offense charged and proved was not a continuing offense but that each time or day on which the table was kept and played upon was a separate and distinct crime. If the offense was a continuing one and charged as such it was not only unnecessary to name the persons who played but, if some were named, and that allegation and the one that other unknown persons played was fully proved, as in this case, it makes no difference that these persons, known and unknown, were not shown to have all played at the same time. [Comm. v. Price, 8 Leigh, 757.] The names of the persons gambling were but an incidental matter. [Jessup v. State, 14 Ind. App. l. c. 232.]

The attempt to employ a formal continuando in this case was not a skillful one (Bishop’s Directions and Forms, sections 82, 83), but an offense continuous by nature may be charged as of one day and proved as a continuing offense provided no abatement is directly sought {Id., section 81), and such is the better pleading in such case.

That fragments of a formal continuando appear in the indictment is of no consequence, and they may be treated as surplusage if the offense is continuing in its nature and therefore provable under a simple charge (also made) as of a particular day. [Bishop’s Directions and Forms, sec. 82; State v. Lee, 228 Mo. l. c. 493, 494; State v. Groves, 21 R. I. 253.]

By this rule the indictment in this ease was therefore sufficient as a charge of a continuing offense and evidence was admitted on that theory and the whole case, from beginning to end, tried in that fashion. Defendant’s failure to move an election at any time and his failure to ask an instruction restricting the jury to a particular occasion or admonishing them that all must agree upon one particular occasion on which he offended, sufficiently indicate his position during the trial.

In the case of State v. Lee, supra, this court held that the indictment charged a continuous offense and practically committed itself to the doctrine that the offense of setting up and keeping a gaming'device, etc., may be prosecuted as a continuing one. In that case the principal instruction was like that in this case and authorized the jury to convict if defendant had set up and kept, etc., a certain gaming' device within three years prior to the finding of the indictment, there being evidence that Lee operated the device for months. We see no reason for departing from that conclusion. The word “keep” itself contains the idea of continuity. [United States v. Smith, 4 Cranch (C. C.) 659, 27 Fed. Cas. 1155.] We hold that the offense of setting up and keeping (the instructions having required the jury to find both) as proved in this ease, is a continuing one in its nature, and think this conclusion well supported by reason. It certainly is supported by authority. [State v. Wilson, 9 Wash. l. c. 19; Martin v. State, 56 So. l. c. 65, 66; Bryan v. State, 120 Ga. 201; Kain v. State, 16 Tex. App. l. c. 309; State v. Lindley, 14 Ind. 430.] Setting up and keeping a gaming table or device was a nuisance at common law by force of the fact that it was continuous.

The offense having, in effect, been charged in the indictment, being in its nature and having been tried as a continuing one, there could be but one punishment (Hinkle v. Commonwealth, 4 Dana, 518), and any other prosecution of defendant for an offense committed by the same means at the same place prior to the filing of the indictment in this case is barred by this conviction. .

It is not meant by what has been said that a gaming device must be kept for a year, a month, a week or a day before the keeper becomes amenable to the penalties of the statute; nor that it is not possible for two separate offenses to be committed within a given time by the same means at the same place by the same person. [State v. Lindley, supra.]

In this case, however, defendant has been charged, tried and found guilty of a continuing, offense and cannot complain that the trial court did not apply rules applicable solely to cases in which there is evidence of separate and distinct offenses. . The naming of certain persons in the indictment did not serve in this case to necessitate the restriction of the State’s evidence to occasions on which such persons played, and the objection made on the ground that the instructions did not so restrict the jury’s finding is overruled.

V. While the trial court might well have given a specific instruction to the effect that defendant could not be convicted in case he did no more than to participate in the game as a player,-we do not think its failure to do so, in the circumstances of this case, constitutes reversible error. In the instructions given the jury was told, among other things, that “the mere presence of a person at the time of the commission of an offense will not justify his conviction as a principal unless the evidence shows that he was present aiding, abetting, encouraging or assisting the person who did actually commit the offense,” etc., and, in the preceding paragraph, that it was sufficient “if the evidence satisfied the jury beyond a reasonable doubt that the defendant, William Lawson, or other persons acting jointly with him, had charge of and control of” the device.

Taking the instructions as a whole, we are of the opinion that while they are not entirely above criticism in some respects, yet the jury could not have been misled in the respect mentioned. The judgment is affirmed.

Boy, G., concurs.

PER CURIAM

.

— The foregoing opinion by Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: KENNISH, J.-

text:
    THOMAS F. B. SOTHAM v. DROVERS TELEGRAM COMPANY, Appellant.
    Division Two,
    February 6, 1912.
    1. APPEAL: Motions for New Trial and in Arrest: One Ruling: One Exception. Where the record shows only one ruling of the trial court overruling appellant’s motion for a new trial and his motion in arrest, one exception to such ruling is sufficient.
    2. -: Motions to Strike Out Parts of Petition or Answer: Not Preserved in Bill or Assigned in Motion for New Trial. The action of the trial court in overruling defendant’s motion to strike out the innuendoes contained in the petition in a libel suit, and in sustaining plaintiff’s motion to strike out a part of defendant’s answer, if neither of said motions is incorporated in the bill of exceptions or made a ground of the motion for a new trial, will not be reviewed on appeal.
    3. LIBEL: Definition. Sec. 4818, R. S. 1909, .defining libel, although a part of the Criminal Code, is applicable to civil cases.
    4. -: Pleading: Innuendo: When Other Allegations Necessary. If the publication is not libelous per se, then not only is an allegation of an innuendo to show the defamatory sense in which the language was used necessary, but there must also be an allegation by way of inducement to support the meaning ascribed by the innuendo. The innuendo cannot be looked to for allegations of fact, but allegations essential to the state- ■ ruent of a cause of action, in addition to the publication, must appear by way of inducement or colloquium. But no allegation of either innuendo or inducement is necessary where the publication is libelous per se, as was the publication in this case.
    5. -: Publication Libelous per se. The publication stated that plaintiff was making an address at a cattlemen’s association on the subject, “Honesty is the Best Policy;” that in the midst of his address the sheriff appeared and “served him with a summons to answer a civil action, brought by Clem Graves to recover $10,000 damages arising from an alleged fraudulent cattle transaction;” and then proceeds to set forth the salient allegation of Graves’s bill, and ends by saying a man, once respected and honored, lived in the town where plaintiff did, “who couldn’t buy a bar of five-cent soap in the town to-day, without paying cash,” and that plaintiff “likely had this offender in mind while making his talk.” Held, that the publication was libelous per se.

    6. -: Evidence: Relevant Matters. Where the publication states plaintiff had been served with a summons in an alleged fraudulent cattle transaction and that he had thereupon taken the benefit of the bankrupt law, and defendant alleges the truth of those statements, it is proper to permit plaintiff to prove the loss of the cattle by disease and to show that his bankruptcy was the result of causes beyond his control.
    7. —-: -: Plaintiff’s Standing: Specific Details. Testimony of plaintiff’s general standing, financially and socially, may be given in evidence in a libel suit, but he is not to be permitted to go into details of his life or prove specific instances upon that issue — for instance, where the publication charged plaintiff with having been sued upon an alleged fraudulent cattle transaction, testimony as to a testimonial sale of cattle given for his benefit by the citizens of the town where he formerly lived is incompetent. But in this case, such improper testimony is held not to have prejudiced defendant in its substantial rights on the merits.
    8. -: Demurrer: Practice. Where the publication was libelous per se, and much conflicting testimony was introduced upon the issues raised by the answer, the case should have gone to the jury, and the court did not err in overruling a demurrer to the evidence.
    9. -: Instructions. Where the instruction sets forth the alleged libel, and that is followed by the statutory definition of libel, and then tells the jury that if they believe and find from the evidence that the article falls within the definition so given, then the article is libelous under the statute, it complies with and follows the law of libel.
    10. -: -: Truth of Publication. .An instruction defining libel is not erroneous for that it ignores the issue of the truth of the publication as made by the answer. The statutory definition of libel does not make the falsity of the publication a part of the definition. Neither is it necessary for plaintiff to prove its falsity as a part of his case, for that is presumed.
    11. -: -: Justification: Every Charge. It is proper in a libel suit to instruct the jury that it is incumbent upon defendant, under its plea of justification, to prove the truth of all the alleged statements in the publication, and that if it has failed to prove the truth of any one charge and such charge is libelous, then the verdict must be against such plea. 12. -; -: -: Burden of Proof. Nor is the burden of proof, in such case, upon the plaintiff upon each issue submitted.
    13. -: Excessive Verdict: $10,000. There being no award of punitive damages, and nothing to show prejudice or passion on the part of the jury, the evidence is reviewed and it is held that a verdict for $10,000 in this case is too large by $4,000.
    Appeal from Jackson Circuit Court. — Eon. E. E. Porterfield, Judge.
    Affirmed (conditionally).

      Leslie J. Lyons and Scott J. Miller for appellant.
    (1) The court erred in overruling defendant’s motion to strike out the innuendoes in plaintiff’s amended petition. McGinnis v. Knapp & Co., 109 Mo. 139; 18 Am. & Eng. Ency. Law (2 Ed.), p. 974. There is no inducement or colloquium preceding the charge of publication of the article in question, which sets forth facts sufficient to warrant the innuendoes set out in plaintiff’s petition. 13 Ency. P'l. & P'r. (2 Ed.), 32; Curry v. Collins, 37 Mo. 329; Dyer v. Morris, 4 Mo. 218; Wood v. Hilbish, 28 Mo. App. 389; Unterberger v. Sckarff, 51 Mo. App. 110; Christal v. Craig, 80 Mo. 372. (2) The court erred in sustaining plaintiff’s motion to strike out parts of the amended answer filed by the defendant. (3) The court should have sustained defendant’s objection to the introduction of any evidence at the beginning of the trial because the petition does not state facts sufficient to constitute a cause of action. The article in question is not libelous per se. 18 Am. & Eng. Ency. Law, p. 1085; Rammell v. Otis, 60 Mo. 365; Herman v. Bradstreet, 19 Mo. App. 227; Birch v. Benton, 26 Mo. 155; Townshencl on Slander & Libel (4 Eel.), p. 157; Odgers on Libel & Slander (2 Ed.), p. 86; Spurlock v. Investment Co., 59 Mo. App. 230; Baldwin v. Walser, 41 Mo. App. 251. (4) The court should not have permitted plaintiff to introduce evidence as to the death of a number of cattle which plaintiff had been showing at the Charleston, S. C., Exposition in 1902. This testimony was clearly immaterial, and had nothing to do with the issues involved in the case, and was introduced for the sole purpose of arousing sympathy on the part of the jury for Mr. Sotham, and a specious excuse for his bankruptcy proceedings which were filed late in the fall of 1903. (5) The court, erred in permitting testimony to be introduced over the objection of defendant, as to the testimonial sale of cattle given by the citizens of Chillicothe for the plaintiff. Sanford v. Eowley, 93 Mich. 122; 2 Wigmore on Evidence, p. 1959. (6) The court erred in overruling defendant’s demurrer in the form of a request for a peremptory instruction at the close of plaintiff’s evidence. Plaintiff alleged no special damages, and proved none. In fact, the record shows from Mr. Sotham’s own testimony, that his business was more extensive after the publication of this article than it was at any time while he lived at Chillicothe. Inasmuch, therefore, as the article is not libelous per se, it was absolutely essential that special damages must be averred and proved. Julian v. Kansas City Star, 209 Mo. 80. (8) Instruction 1, given at the request of plaintiff, is erroneous because it omits the element of falsity, and because defendant pleaded the truth of the article, and the falsity of it was one of the main issues of the case, and therefore the court in defining libel, should have stated as one of-the elements of libel that it must be false before it can be libelous. Stark v. Knapp, 160 Mo. 551; Townshend on Libel and Slander, (4 Ed), p. 213. (9) The court committed error in refusing to give defendant’s instruction 3. This instruction requests the court to instruct the jury that plaintiff must prove his case by a preponderance of the evidence, and then defines what the preponderance of the evidence is. This instruction is in the form approved by this court in many cases. Clements v. Maloney, 55 Mo. 357; Lewis v. McDaniel, 82 Mo. 584. (10) The verdict was the result of passion’ and prejudice, as shown by the excessive amount allowed.

      Ilenry L. Jost and Hunt G. Moore for respondent.
    (1) The bill of exceptions does not disclose a proper and sufficient exception on the part of the defendant to the court’s action in overruling defendant’s motion for a new trial. It made one single exception to two different actions of the court: The action of the court in overruling defendant’s motion for a new trial and the court’s action in overruling its motion in arrest of judgment. St. Joseph v. Ens-worth, 65 Mo. 628; McKee v. Dry Goods Co., 132 S. W. (Mo. App.) 1191. (2) The action of the trial court in overruling defendant’s motion to strike out the innuendoes in plaintiff’s amended petition is not before this court and will not be reviewed, because it was not preserved by any hill of exceptions and no complaint is made of such action in defendant’s motion for a new trial. Coffey v. Carthage, 200 Mo. 629; Smith v. Baer, 166 Mo. 401; Davidson v. Real Est. Co., 226 Mo. 36; Railroad v. Wyatt, 223 Mo. 357; Gardner v. Railroad, 223 Mo. 412. Moreover, defendant by answering waived any right to have the motion reviewed. Springfield Engine Co. v. Donovan, 147 Mo. 628; Kansas City ex rel. v. Surety Co., 196 Mo. 300; Brannoek v. Railroad, 200 Mo. 567; Kansas City to use v. Yeoman, 213: Mo. 175. (3) The language of the article sued on is libelous per se. Section 4818, R. S. 1909. This statute sweeps down the rule, if it ever existed, which required a libel to charge a crime in order that it should be libelous per se. Any language which may fairly he said to result in tlie things denounced by the statute is libelous per se. Every libel is libelous per se. Ferguson v. Publishing Co., 72 Mo. App. 465; McGinnis v. Knapp, 109 Mo. 149; Morse v. Times Republican, 124 Iowa, 707. The article sued on is libelous per se, because: (a) It directly imputes to plaintiff fraudulent and dishonest conduct in his business as a cattle trader and dealer and in respect to a certain cattle transaction that he had with one Graves. Manget v. O’Neill, 51 Mo. App. 35; Pub. Co. v. Trade Journal, 108 Mo. App. 223; Farley v. Publishing Co., 113 Mo. App. 224; State v. Armstrong, 106 Mo. 416; McGinnis v. Knapp, 109 Mo. 143; Sullivan v. Commission Co., 152 Mo. 268; Townshend on Libel &i Slander (4 Ed.), sec. 177; Odgers on Slander & Libel (Bigelow’s Ed.), 21; Noeinger v. Vogt, 88 Mo. 593. The defendant had no lawful right to publish in its newspaper the charges of fraud which Graves had made against plaintiff in Ms petition for damages, the petition having just been filed and no action having been taken thereon by the court; and in publishing those charges of fraud against plaintiff in its newspaper, defendant is answerable to plaintiff in damages unless defendant prove the charges so made against plaintiff to be true. Barber v. Dispatch Co., 3 Mo. App. 377; Meriwether v.. Knapp & Co., 211 Mo. 219 ; Nison v. Printing Co., 101 Minn. 309, 21 L. R. A. (N. S.) 188; Park v. Free Press Co., 72 Mich. 560,1 L. R. A. 599; Am. Pub. Co. v. Gamble, 115 Tenn. 666; Cowley v. Pulsifer, 137 Mass. 392. (b) The article is libelous per se because in addition to the direct charge of fraud and dishonesty as above stated, it makes the veiled charged that plaintiff was dishonest and deceitful in' an insinuating and ironical way. It is well settled that written language may be libelous through the ironical and insinuating spirit in which it is used. 18 Am. & Eng. Ency. Law (2 Eel.), 977; McGinnis v. Knapp, 109 Mo. 141; Merrill v. Pub. Co., 197 Mass. 193; Buckstaff v. Viall, 84 Wis. 129; Bogdell v. Jones, 4 M. & W. 466. The mere headline of the article is libelous in the light of what follows. McGinnis v. Knapp, 109 Mo. 144; Hays v. Press Co., 127 Pa. St. 142. (c) The article is further libelous per se because it contained the veiled and insinuating imputation that plaintiff was acting the hypocrite while making the public address mentioned in the article. Newell on Slander & Libel (2 Ed.), 58. (d) The article is libelous per se because it directly charges that plaintiff was wholly destitute of credit and trust in Chillicothe where he formerly lived, honored and respected, and the last paragraph of the article, read in the light of the entire article, clearly and unmistakably insinuates and gives the reader to understand that plaintiff is a bad debtor and unworthy of credit. State v. Armstrong, 106 Mo. 415; Muetze v. Tutor, 77 Wis. 236; Davis v. Hamilton, 85 Minn. 209; Sanders v. Hall, 22 Tex. Civ. 282. To charge a person with a want of credit is libelous per se even though published of one as an individual, though not in respect to his business or trade. Mc-Dermott v. Union Credit Co., 76 Minn. 84. (e) The article read altogether is an ironical lampoon upon plaintiff. The necessary and inevitable consequences of the article were to provoke plaintiff to wrath, to expose him to public scorn, hatred, contempt and ridicule, and to deprive him of public confidence and social intercourse. It is sufficient to make the article libelous per se that its tendency is to produce any one of these results. McCloskey v. Publishing Co., 152 Mo. 339 ; Farley v. Publishing Co., 113 Mo. App. 216; Meriwether v. Publishing Co., 120 Mo. App. 354; McGinnis v. Knapp, 109 Mo. 131; Price v. Whiteley, 50 Mo. 439; Academy v. Gaisner, 125 Mo. 517; Manget v. O’Neill, 51 Mo. App. 35; Morse v. Printing Co., 124 Iowa, 517; McMurray v. Martin, 26 Mo. App. 437; Julian v. Star Co., 209 Mo. 35. (4) The article sued on being libelous per se the court properly overruled the defendant’s objection to the introduction of evidence under the petition, and properly overruled the demurrer to the evidence at the close of plaintiff’s case, and properly refused the peremptory instruction asked at the close of the whole case. From the publication of written words which are actionable per se thb law presumes damages. Brown v. Knapp & Co., 213 Mo. 696; Farley v. Publishing Co., 113 Mo. App. 225; Buckley v. Knapp, 48 Mo. 152; Doherty v. Lynett, 155 Fed. 681; 1 Jaggard on Torts, p. 493; 8 Ency. Evidence, p. 249. Falsity, malice and damage are all presumed. Prewitt v. Wilson, 128 Iowa 202; Candrian v. Miller, 98 Wis. 167. (5) The testimony showing plaintiff lost by death a number of fine, valuable cattle, and that this was one of the financial misfortunes that broug’ht about his bankruptcy, was competent. State v. Meagher, 124 Mo. App. 337; Lumber Co. v. Rogers, 145-Mo. 455; Gale v. Car Co., 177 Mo. 427. (6) It was competent to show the pecuniary condition of plaintiff. The testimony that plaintiff received about $3500 in cash from the proceeds of a certain benefit sale of fine cattle, given in his behalf by his friends in Chill ieothe, was competent, as being part of plaintiff’s history and as showing the plaintiff’s pecuniary condition. The source from which he obtained this money was also competent inasmuch as the evidence showed he obtained it after the filing of his petition in bankruptcy and while the bankruptcy proceedings were pending. Kennedy v. TTolladay, 25 Mo. App. 511; Clements v. Maloney, 55 Mo. 359; Townshend on Slander & Libel (4 Ed.), sec. 391; Peltier v. Mict, 50 111. 512; Parker v. Pub. Co., 181 Mass. 392. Again, the record does not disclose that at the time the evidence was received defendant interposed any specific objection to the same. State v. Meagher, 124 Mo. App. 337. (7) Instruction 1 on the definition of libel, has been repeatedly approved by this court. McCloskey v. Publishing Co., 152 Mo. 339; Julian v. Star Co., 209' Mo. 89. (8) Plaintiff’s instruction 9 has been expressly approved. Meriwether v. Knapp' & Co., 120 Mo. App. 385; 18 Am. & Eng. Ency. Law (2 Ed.), p. 231; Mertson v. Jensen, 56 Neb. 430; Morse v. Ptg. Co., 124 Iowa 720; Sanders v. Pub. Co., 94 N. T. Supp. 993. (9) Plaintiff’s instruction 10 on the measure of damages has been approved. Meriwether v. Knapp * & Co., 120 Mo. App. 386. (10) The court properly refused defendant’s instruction No. 3. Defendant having by its answer admitted the publication of the article and pleaded the truth thereof, the burden of proof was on defendant. Minter v. Bradstreet, 174 Mo. 488; State v.- Hosmer, 85 Mo. 558; Newell on Slander & Libel (2 Ed.), pp. 707, 708, 794; 2 Green-leaf on Evidence (16 Ed.), sec. 423. (11) The verdict was not excessive. Brown v. Knapp & Co., 213 Mo. 696; Brown v. Printing Co., 213 Mo. 653; Julian v. Star Co., 209 Mo. 35; Meriwether v. Knapp & Co., 120 Mo. App. 354; Meriwether v. Knapp & Co., 224 Mo. 617.
   KENNISH, J.-

— This action for libel was brought in the circuit court of Jackson county by respondent, Thomas E. B. Sotham, against the Drovers Telegram Company, a corporation, the owner and publisher of the “Daily Drovers Telegram,” a Kansas City newspaper in which the alleged libelous article appeared. Upon a trial the jury returned a verdict in favor of plaintiff, awarding compensatory damages in the sum of ten thousand dollars, and the defendant appealed to this court. The pleadings are of too great length to be set out in this opinion and we shall state only the substance thereof.

The amended petition, on which the case was tried, was in one count, and alleged as inducement that plaintiff had been engaged in the business of breeding and dealing in Hereford cattle and fine stock, and was widely known throughout the country in connection with such. business; that at the time of the publication of the alleged libel, and for three years immediately before that date, he was engaged in such business and resided at'Kankakee, Illinois, but that for many years prior thereto he had resided at and was engaged in the same business at Chillieothe, this State. The petition then alleged the publication of the false, malicious and defamatory article of and concerning the plaintiff in defendant’s said newspaper, on the 7th day of February, 1906, and set out the publication as follows:

‘ ‘ HONESTY THE’ BEST POLICY.
“Thomas F. B. Sotham, formerly a prominent breeder of Hereford cattle at Chillieothe, Mo., but who became heavily involved and' was forced into bankruptcy and who has since been in the background, came to life again last week. His appearance was scheduled at a meeting of the State Hereford Breeders’ Association, in the State House in Indianapolis. He was called upon for a speech. His subject was ‘Honesty is'the Best Policy.’ He had hardly warmed up in his remarks and proceeded along this line: ‘In this business more than any other, honesty is the best policy. There is no other walk in life where strict integrity means so much, no other business where any departure from the most rigid probity is so apt to return upon the offender at an inopportune moment,’ when a deputy sheriff served him with a summons to answer a civil action, brought by Clem Graves to recover $10,000 damages arising from an alleged fraudulent cattle transaction.
“Graves, who is prominently identified with the Hereford breeding industry, was present at the meeting. In his bill of complaint he alleges that in 1904 he advised Sotham to buy the E. B. Martineta!e herd of Hereford cattle. Sotham claimed that he was worth $100,000. Sotham purchased the herd in question for $10,000 and Graves went his security. Later Martin-dale learned that Sotham was heavily involved and was converting the cattle into cash. He instituted attachment proceedings, but Sotham took advantage of the bankruptcy laws and his property is now being liquidated. Graves further asserts that less than $2,000 has been paid to Martindale, and he is being held responsible for the $8,000 balance. But Mr. Sotham meant what he said, and it was a wise statement just the same.
“A man once lived, honored and respected, in Chillicothe, who couldn’t buy a bar of five-cent soap in the town to-day, without paying cash. Mr. Sotham likely had this offender in mind while making his talk. ’ ’

The alleged libel, as above set forth, is followed by a lengthy statement of innuendoes, ascribing certain libelous meanings thereto, but as the trial court treated the language.as libelous per se on its face and so instructed the jury, in which view we concur, the innuendoes need not be noticed further. The petition concluded with a prayer for damages for twenty-five thousand dollars as compensatory damages and a like sum as punitive damages.

The defendant filed an amended answer consist ing of seven separate defenses, viz.: (1) A general denial; (2) an admission of defendant’s corporate existence, the ownership, publication and circulation of the newspaper, and that the article complained of appeared in the edition of the Daily Drovers Telegram on February 7, 1906, as stated in the petition, but denied that said article was libelous in any sense; (3) that the matters and facts set forth in the article are true; (4) a denial that the article as published is susceptible of the defamatory and libelous meaning ascribed thereto in the petition; that it was not understood by tbe public as stated in tbe innuendoes, and denies that in consequence of the publication plaintiff was injured; (5) that the publication was an item of news concerning a suit filed against plaintiff in the State of Indiana, growing out of an alleged fraudulent sale' of cattle, and that summons was served on plaintiff substantially as set forth in the published article, and that the article was an account of a public meeting and a matter of public inteTest; (6) matter in mitigation of damages; (7) that the plaintiff was and is guilty of fraudulent, dishonest and delinquent methods, acts and conduct in his business, and setting forth a number of specific instances thereof.

The reply was a general denial.

The court overruled a motion filed by the defendant to strike out the innuendoes of the petition, and sustained, in part, plaintiff’s motion to strike out parts of the answer. Defendant saved exceptions to, such adverse rulings, but, for reasons which will hereinafter appear, those motions and the court’s rulings thereon need not be set out in this statement.

Plaintiff introduced testimony tending to prove the formal allegations of the petition, and also the publication in controversy, and rested. Defendant introduced a number of witnesses who testified that plaintiff’s reputation for honesty and fair dealing, after the date of his bankruptcy, was bad, many of such witnesses being merchants and others in the neighborhood in which plaintiff then resided, to whom' plaintiff was indebted when he failed and became a voluntary bankrupt. In rebuttal, a number of witnesses introduced by plaintiff testified that plaintiff’s reputation, up to the time of the publication of the alleged libel, was good. A peremptory instruction was asked by the defendant at the close of the plaintiff’s evidence, and again at the close of all the evidence, which, in each instance, the court refused.

Appellant assigns many errors for the reversal' of the judgment. We will take them up in their order, after having first considered respondent’s challenge as to the right of appellant to have any error which is matter of exception reviewed on this appeal.

I. The hill of exceptions recites that “the court overruled defendant’s motion for a new trial and motion in arrest of judgment, to which action and ruling of the court defendant at the time and then and there duly excepted and still excepts.” Respondent contends that the record thus shows but one exception to two independent rulings of the court, and that it is therefore insufficient and only the record proper is before this court for review.

We cannot assent to this contention. The record shows but one ruling of the court as to the two motions, and the exception being as broad as the ruling, appellant should not be precluded from the right to have matters of exception considered, merely because he did not save two exceptions to one ruling of the court. Respondent cites McKee v. Dry Goods Co., 152 Mo. App. 241, in support of his position, but that case differs in its facts, in that the record recital discloses separate decisions of the court, to which but one exception was saved. In the case of Kane v. Mo. Pac. Ry. Co., decided in this division and now pending in the court in Banc, the record was the same in its facts as the case now before us on the point in hand. Ferriss, J., there discusses the question at length, in the course of which it is said: “To say that when a court by one order overrules two motions, the exception must in terms divide this order, and except specifically to each dissevered member, is carrying-technicality to an unreasonable extreme.” We fully concur in the law as announced in the Kane case. It should be added that counsel for respondent, at the oral argument, frankly stated that although the point was presented, in Ms brief for the consideration of the court, he was not disposed to insist on it and thus seek to cut off a review of the case on its merits.

II. The errors assigned to the action of the court in overruling defendant’s motion to strike out the innuendoes of the petition, and in sustaining in part plaintiff’s motion to strike out parts of defendant’s amended answer, may be disposed of together.

Neither of the said motions is incorporated in the bill of exceptions or made a ground of the motion for a new trial, and either of such facts, under the settled appellate procedure of this court, is sufficient to preclude a review of such alleged errors in this court.

III. Complaint is made that- the court erred in overruling defendant’s objection to the introduction of any evidence because the petition did not state facts sufficient to constitute a cause of action. The sufficiency of the petition was thus challenged, as also later in the trial by the defendant’s demurrers to the evidence above referred to.

Section 4818, Revised Statutes 1909', defines libel, and although a part of the Criminal Code, it has been held applicable to civil cases.

Appellant’s attack on the petition is' based upon the assumption that the publication is not libelous per se on its face, and that extrinsic facts were essential to bring out its libelous meaning. Upon that theory appellant’s reasoning is sound, for if an innuendo was necessary to show the defamatory sense in which the language was used, then the petition was defective in that there was no allegation by way of inducement to support the meaning ascribed by the innuendo. The law requires that the petition shall set forth the plaintiff’s cause of action, and as the innuendo cannot be looked to for allegations of fact it follows that allegations essential to the statement of a cause of. action, in addition to the publication, must appear by way of inducement or colloquium. This question of pleading is discussed at length, and authorities are cited, in the case of Cook v. Pulitzer Pub. Co., recently decided by this court but not yet reported.

Although conceding the correctness of appellant’s argument, we must hold against it upon this point, for the reason that we think the publication, under the statutory definition, was plainly libelous per se on its face, and extrinsic facts as inducement or innuendo were unnecessary. In such case the innuendoes may be treated as surplusage and disregarded, as was done by the trial court. [Hudson v. Garner, 22 Mo. 423; Callahan v. Ingram, 122 Mo. 355.]

IV. Appellant complains that the court erred in allowing the plaintiff to prove, as a contributing cause of his bankruptcy, the loss of a number of fine cattle by disease. The article complained of stated that plaintiff was served with a summons in an alleged fraudulent cattle transaction and that he had taken advantage of the bankruptcy laws, etc. The defendant alleged the truth of the publication, and plaintiff replied by a general denial. Under the issues thus framed we think it was competent for plaintiff to show that his bankruptcy was the result of causes beyond his control and was not resorted to for the purpose of defrauding his creditors. We therefore hold’ that the evidence was competent.

V. One of the most difficult questions raised by appellant is that of the error assigned to the action of the court in admitting evidence as to a testimonial sale of cattle given by the citizens of Chillicothe for the benefit of plaintiff, shortly after he was adjudged a bankrupt. It is not clear upon what theory the court admitted this testimony. It was not admissible upon the issue of plaintiff’s character, for that can only be assailed or established by proof of general reputation. Neither was it competent on the issue made by the defense of justification, for it did not tend to disprove that offense. Our courts have decided that the financial and social standing of both the plaintiff and the defendant, in libel and slander eases, may be given in evidence upon the question of damages. [Buckley v. Knapp, 48 Mo. 152; Polston v. See, 54 Mo. 291; Trimble v. Foster, 87 Mo. 49.] But we are not aware of any rule of law which authorizes the plaintiff to prove specific instances upon that issue, as was done in, this case. The rule, as stated in 4 Ency. of Evidence, p. 29, is as follows:

“In some actions such as libel and slander the plaintiff may give in evidence, on the question of exemplary Samag'es, his own rank and condition in life, because the degree of injury the plaintiff may sustain by the defamation may very much depend on his rank and condition in society. It has been said, however, that testimony received for that purpose should be confined to the plaintiff’s general social standing, and not extended to minor details of his life.”

The testimony complained of did not go to plaintiff’s general standing, financially or socially, and would seem to be incompetent under the foregoing rule. However, under the facts of this case, we do not think that such testimony prejudiced the defendant in its substantial rights on the merits of the case. The defendant pleaded many specific instances of dishonest dealings on the part of the plaintiff and offered much evidence in support thereof. There was also much testimony by both sides on the issue of plaintiff’s character, and his standing in the community was so thoroughly presented to the jury, independently of the testimony under consideration, that we do not regard its admission of sufficient importance to entitle the de fendant to a new trial.

VI. Appellant’s complaint that the court erred in refusing defendant’s instructions in the nature of demurrers, at the close of plaintiff’s evidence and again at the close of all the evidence, does not require extended consideration. We have ruled that the publication was libelous per se. Upon the issues of fact raised by the answer much conflicting testimony was introduced and the case therefore became on'e for the jury, both as to law and fact.- We hold that the court properly refused such instructions.

VII. Error is assigned to the action of the court in the giving of instructions to the jury at the request of plaintiff.

Instruction numbered 1 defines libel in accordance with the statute and the decisions of this court. The error complained of is that the instruction ignored’ the issue of the truth of the publication as made by the answer; also that the instruction was given on the theory that the article was libelous per se. The latter complaint need not be considered. This instruction sets forth the alleged libel and is followed by the statutory definition of libel. The court then directs the jury that if they believe and find from the evidence that the article published falls within the definition previously given, then the article- is libelous under the statute. In thus instructing the jury the court was following not only the law as approved by this court but the general law upon the subject. [Julian v. Kansas City Star Co., 209 Mo. 35; McCloskey v. Publishing Co., 152 Mo. 339; Odgers on Libel and Slander (4 Ed.), 105.] In Odgers, supra, the rule is laid down that: “The proper course is for the judge to define what a libel is in point of law and to leave it to the jury whether the publication in question falls within that definition. ’ ’

The statutory definition of libel does not make the falsity of the publication a part of the definition. The Constitution and statute provide that the truth of the libel may be given in evidence, but it may thus be given only when pleaded as an affirmative defense. Its falsity is presumed and need not be proved as a part of plaintiff’s case.

We have examined the other alleged errors as to the giving of instructions numbered 9 and 10', and the refusal of defendant’s instruction numbered 3, and find they are without merit. Instruction numbered 9 tells thé jury that it is incumbent on the defendant, under the plea of justification, to prove the truth of all of the alleged statements in the publication, and that if it has failed to prove the truth as to any one charge and such charge is libelous, then the verdict must be against such plea. No-principle of the law of libel is better settled than that declared in this instruction. [Meriwether v. Knapp & Co., 120 Mo. App. 354; 18 Am. & Eng. Ency. of Law (2 Ed.), p. 231; Neilson v. Jensen, 56 Neb. 430; Morse v. Printing Co., 124 Iowa, 707; Saunders v. Publishing Co., 94 N. Y. Supp. 993.]

Instruction numbered 10 is complained of only on the ground that it treats the publication as libelous per se. This phase of the case is dealt with elsewhere in this opinion, and as the instruction is in accord with the views there expressed, further consideration of the subject is not necessary.

Instruction numbered 3, requested by the defendant, was properly refused. Under the issues made by the pleadings the burden of proof upon each issue submitted did not rest upon the plaintiff, as stated in this instruction, and the court did not err in refusing it. [State v. Hosmer, 85 Mo. 553; Minter v. Bradstreet, 174 Mo. 444; Newell on Slander and Libel (2 Ed.), pp. 707, 708 and 794.]

VIII. Appellant complains that the verdict is excessive and the result of passion and prejudice of the jury.

This question has given us much concern. As the plaintiff was a non-resident of the State and went into the domicile of the corporation and the home of its owners, and there brought and tried his case, it would seem that the advantage, so far as the jury is concerned, should have been with the defendant. And the fact that no punitive damages were allowed would also seem to negative the existence of passion or prejudice. Besides, plaintiff’s case did not depend upon proof of actual damages. Upon a finding of libel the extent of the injury and the amount of the verdict is peculiarly the province of the jury.

On the other hand, a court should not entirely close its eyes to a consideration of the proportion between the injury and the redress awarded. The rule is now established by the decisions of this court that if the verdict is excessive, and it does not appear in the record that the jury were actuated by passion or prejudice, and the record is otherwise free from error, the judgment will be affirmed only upon condition of a remittitur being entered. [Cook v. Globe Printing Co., 227 Mo. l. c. 547.]

With these observations, let us consider briefly some of the salient facts bearing upon this question.

Plaintiff was about forty years of age when he filed a petition in bankruptcy and was adjudged a bankrupt at Kansas City, in November, 1903. He had come to Chillicothe, Missouri, about thirteen years before from Detroit, Michigan. He brought about four thousand dollars with him and made a small payment on a farm of about four hundred acres, which he purchased. He left debts unpaid in Michigan, and said on the witness stand: “Sorry to say there was qurte a number of bills followed me.” He soon engaged extensively in the cattle business and borrowed much capital, mortgaging his property to secure his loans. Shortly before his failure he sought a letter showing his financial standing to be good, from a banker of Ms home town, and the baMter, after changing it from the form in which plaintiff brought it to him already prepared, signed it. When he failed his liabilities amounted to about one hundred and twenty-two thousand dollars, and his general creditors received only about six per cent of their claims. He claimed all of his exemptions, amounting to about eighteen hundred dollars. His neighbors gave him a testimonial sale which realized thirty-five hundred dollars. He then moved to Chicago and soon after to Kankakee, where he boug’ht a farm of two hundred acres find organized a cattle company with a capital stock of one hundred thousand dollars, ten shares of which were owned by himself and wife and the remainder by his father-in-law. At the time of the trial he was again doing an extensive cattle business.

We have fully considered these facts, together with the other testimony, and without further discussing them our conclusion is that the verdict was’clearly excessive. And averse as an appellate court is to review a verdict and hold it excessive in amount, we feeHt our duty to do so in this case. Therefore, the judgment herein will be affirmed for the sum of six thousand dollars, as of the date of the return of the verdict and of the rendition of the judgment, and to bear interest from that date, if the plaintiff shall, within ten days from this date, remit the sum of four thousand dollars as of the date of sMcl verdict. Otherwise the judgment'will be reversed and the cause remanded for a new trial. It is so ordered.

Ferriss, P. J., and Broiun, J., concur.