been found out on him before the caucus statements of the same kind are made; in met." one the word "perjury" is used. But in leading up to his object, Fitz- In explaining how these charges came to maurice used the conduct of Mr. Cook as be made in that form, Fitzmaurice claims chairman of the Democratic State Committee that although he knew at the time of the and his defeat at the polls the preceding No- | Caldwell depositions that Mr. Cook was vember to drive home and clinch his moraliz- chairman and not treasurer of the committee, ing and political advice. He assumed that and although he knew the law required the Cook had defeated himself by his admissions treasurer and not the chairman to make the on the stand in the Cardwell Case and had affidavit, yet he got momentarily confused injured his party thereby. Under the al- by the fact that Mr. Niedringhaus had acted legory of a trip across the American desert in both capacities for the Republican Comon the old Santa Fé trail to Independence, mittee and for the moment treated Mr. Cook Mo., he pictured Mr. Cook as bringing his as filling both places on the Democratic Comparty in the Cardwell Case to the same town. mittee. The article spoke of him as "the man who swore to what wasn't so." It applied to him injunction, "Thou shalt not bear false witness," leading up to it in this way: "That when your Missouri gagged an' bucked, an' kicked, till he knocked the dashboard out an' run away with the whole darned outfit. He'd stood Stone. He made a bad face over him, but swallowed him, alum an' all. That'll show you that he could stand anything but Cook. "Now, Cook ain't the issue as a public officer, mind you. Sam was a good sheriff of Warren county. He made a good Secretary of State, an' administered that office an' closed up its accounts without the loss of a dollar to the State. Nothin' was ever proved against him but what he proved himself in that Independence story, but say, if you don't think that was enough, ask Sam. Here he comes, once the most popular man in Missouri away back yonder behind the next lowest man on his ticket, an' so far back of him that you've got to get a spyglass to see the dust he's a-raisin.' Say, we were all against him. Republicans, Democrats an' all of us. There's no such thing as party lines when it comes to dealin' with that there question. I tell you, Missourians is all alike. Give 'em a question that goes down to the bottom of their common nature an' they'll answer it with almost one voice, an' that voice 'll be an echo of the one that came down from Mount Sinai a-sayin' 'Thou shalt not bear false witness.'" It uses the expression, "After Sam Cook had swore that he contributed $2,500 to a campaign fund that was contributed by another man whose name Sam wanted to conceal," it says, "A man who'll do what Sam Cook done, to serve his party or hisself instead of serving the Lord, an' will take the name of the Lord in vain in swearin' to an untruth will never meet their (the people's) approval." After telling a story of two boys who stole pie and how one got licked for lying while the other ate the pie, it states: "But Bill knows that Sam got a good deal of the pie before he got caught in the lie and licked * and I guess Bill knows that Sam got licked as soon as he got caught lying and that he'll keep on gettin' licked as On February 26, 1905, Fitzmaurice returned to the matter of his prior article in the Globe-Democrat. After dealing with the Republican senatorial situation at some length and pointing out that legislative pay would be cut down to a dollar a day at about that time in the spring called "groundhog's day," and that if a Senator was not elected at that time none was likely to be elected at all, he appended a retraction and apology in the same vernacular and idiom. See principal opinion for its terms. On the 10th of May following plaintiff sued for $100,000 actual and $150,000 exemplary damages, $250,000 in all. The verdict came in for $150,000, 11 jurors signing. That verdict was made up of a blending of actual and punitive damages, half and half. It is a coincidence of only possible value to jurisprudence that, while the jury cut away $100,000 from plaintiff's original estimate, my learned Brethren have now cut away $100,000 from the jury's estimate both reductions proceeding by equal leaps and bounds, and turn about being fair play, as the saying goes. Bearing in mind now that defendant pleaded the testimony of Mr. Cook and Mr. Orear taken in the Cardwell depositions and the broad dissemination of that testimony and a state-wide discussion in the press and on the "stump," continuing down during the campaign of 1904 as a live public question, by way of mitigation of damages, and bearing in mind that plaintiff went to trial solemnly admitting in his reply to defendant's answer that he and Orear gave that testimony in the Cardwell deposition, we come to the trial itself. At that trial Mr. Cook took the stand in his own behalf. The principal opinion sets out his testimony in extenso. We need only call attention to the fact that having admitted, for the purposes of the trial, that his former testimony was correct, he testified at the trial that it was poorly taken and poorly reported. Nevertheless, in substance, he admitted getting $2,000 from Col. Phelps and giving Col. Phelps credit in his own book for that sum, Zeibig's books giving a like credit at the start; that a meeting was called shortly after the campaign was closed of parties interested in the accounts of the committee; that Mr. Cook attended that meeting and went ing it; that a controversy there arose over the Phelps contribution; that Gov. Stone was opposed to allowing the books to show a contribution from Phelps; that the representative of Gov. Stephens was also wrought up on that score. Mr. Cook desires us to understand "that it was a matter of indifference to him," but (observe), as the result of a consultation and for the very purpose of arranging the data in the treasurer's books so as to avoid the publicity of allowing the credit to appear in Col. Phelps' name, Mr. Cook went to see Col. Phelps to persuade him to consent to a substituted name. He says he did not suggest his own name to Col. Phelps, but it appears that after two interviews he bore back to Zeibig, the treasurer, an open order from Col. Phelps to allows the contribution to appear in Mr. Cook's own name. The evidence abundantly shows the very purpose of this substitution was to conceal the matter from the public, and that Mr. Cook was instrumental in doing that very thing. It was understood that, if the substitution could be procured, Zeibig would be willing to make an affidavit that the contribution was made by a substituted party; the substitution being for the purpose of easing his conscience in that behalf. In cross-examination plaintiff described this meeting thus: "A meeting of Gov. Stone, Mr. Orear, and those that would meet there for the purpose of closing up the campaign." It is shown further that when plaintiff entered the room those present were discussing the making of the affidavit under the corrupt practices act. "They were discussing that matter when I entered the room," said he. Nothing else was discussed that witness could remember, and when he heard the objections urged against the Phelps contribution he took the necessary steps to have it changed to himself; no one else lifting a finger to that end. He made two trips to see Col. Phelps, saw him both times, and procured the written order and "handed it to Mr. Zeibig with the belief that Mr. Zeibig would credit it to somebody else other than Col. Phelps. "And would swear to it?" was asked of the witness. His reply was: "Yes, sir; certainly." Returning to the campaign of 1898, being interrogated as to an item of $3,500 credited to him as his personal contribution by the report of the treasurer, Mr. Cook again admitted that he had not contributed one cent of it; that he, as chairman, get $1,000 from Col. Carroll, the general attorney of the Chicago, Burlington & Quincy Railroad, and had put it in as coming from himself because Col. Carroll had told him "he didn't want it credited in his name"; that $3,500 had come from Mr. Seibert; that he (Seibert) got the money from Col. Carroll and Judge Priest and had turned it over to him, and he (Cook) had taken the credit for it in his own name because Mr. Seibert "pre ferred that I would credit it to myself." He testified further that the treasurer "knew he (Cook) didn't have any $3,500," and that he The deposition of Col. John H. Carroll was read. He testified that when he gave $1,000 to Mr. Cook he told him (Cook), “I don't want this matter advertised." The deposition of Col. William H. Phelps was also read. He testified that he gave Mr. Cook $2,000 in person and got Zeibig's receipt for that sum; that Mr. Cook came to his office and personally solicited the contribution, stating that Gov. Stephens had been drawn upon for that sum but had declined to pay because he had contributed all the law would permit for campaign purposes; that subsequently Mr. Cook came to him and told him that the leaders of the party, because of witness' connection with a railroad, thought it best that his (Phelps') contribution should not appear in the report required by law at the hands of the treasurer and wanted to know if he had any objection to its appearing in some one's else name. Witness told Mr. Cook that the contribution "was not made for advertising purposes and he had no objection." Accordingly, witness gave an order on Mr. Zeibig, the treasurer, to have Cook substituted for Phelps. The recollection of the witness was that Cook suggested his own name. The deposition of Mr. Seibert was also read. He testified that he got money from Priest and Carroll in currency and from the brewers and gave it to Mr. Cook. (Note-This is the money Mr. Cook caused to be credited to his own name in the treasurer's report of 1898.) So that it is fair to say that the testimony at the trial substantially agrees with that given by Mr. Cook in the Cardwell depositions. With the record in this fix, defendant's learned counsel argue that, whether the charge is that of perjury (i. e., a felony-Rev. St. § 2033 [Ann. St. 1906, p. 1348]), or that of making a false voluntary affidavit (i. e., a misdemeanor-Rev. St. § 2036 [page 1350]), a dilemma is sprung on plaintiff, impaling him on either horn. That is, in either event the charge is true, hence a demurrer lay, and it was error to overrule it. This argument runs on the accepted doctrine that all who intentionally participate in or procure the commission of a misdemeanor are principals in the eye of the law, and every one who participates as an accessory before the fact in the commission of such a felony as perjury is himself (broadly speaking by including the idea of subornation) guilty of perjury. State v. Wagster, 75 Mo. 107; State v. Fredericks, 85 Mo. 145; State v. Orrick, 106 Mo., loc. cit. 119 et seq., 17 S. W. 176, 329; State v. Edgen, 181 Mo., loc. cit. 590, 80 S. W. 942; Rev. St. 1899, § 2364 (Ann. St. 1906, p. 1455). The torical fact universally blazoned abroad in postulate assumed by counsel is sound as an a matter affecting the public interests and abstract proposition in morals and law. In involving the duties of officials or quasi ofviolations of law the hidden hand is as guilty ficials in their relations to the public), and as the open, the man who holds the string had commented thereon to the effect that, that pulls the puppet is as guilty as the pup- while Mr. Cook made no affidavit, yet he pet himself, and either is subject to punish- intentionally and effectually made the path ment by the law, or to just criticism and ex-straight and plain for the treasurer to make coriation by the citizen or newspaper. But a misleading and false one, that he had inin this case defendant did not plead the truth dustriously caused the documentary data to by way of justification. Our Code contemplates that such defense, if relied on, should be pleaded (Rev. St. § 636); that defendant may plead both matters in justification and mitigation so long as he states them separately. It is old doctrine, none the less sound because old, that justification by way of the truth is subject-matter of defendant's plea. This is so because defamatory matter is presumed to be false. That doctrine is based on those wise maxims which are of the very bones and framework of the body of our law and make its chief glory, viz.: In favor of innocence, all things are to be presumed. Odious and dishonest things are not to be presumed in law. Therefore, in a libel suit the burden rests upon the defendant to show the truth of his charges and overcome the presumption of innocence. Thus, in McCloskey v. Pulitzer Pub. Co., 152 Mo., loc. cit. 341, 53 S. W. 1087, plaintiff introduced no evidence | in chief except the alleged libelous publica- cealing the source of certain political contion. True, in the case at bar, plaintiff alleged the publication was false, and defendant, with many specific denials, denied generally the allegations not admitted; but "no principle is better established than that the truth of slanderous words cannot be given in evidence under the general issue either as a defense or in mitigation of damages." And the plea of justification must with precision directly and distinctly allege the truth of the defamatory matter charged. We need not discuss the question whether a plaintiff should be nonsuited if, in making his case in court, he unequivocally admitted the truth of the charge as made, for that question is not in this case. Defendant having deliberately elected not to justify by alleging the truth (thus withdrawing that issue of fact from the jury), may not raise it on demurrer and have us establish it as a matter of law. The principal opinion ruled with the divisional opinion on that point. But, as pointed out, all these phases of the case were pleaded as matter in diminution of damages and went to the jury on that issue. So that, on the quantum of damages, we have them presented legitimately to us for our consideration. We take it as a sound proposition to be granted by all men as of course that if de fendant, instead of charging Mr. Cook with actually swearing to a lie, had contented itself with publishing excerpts from his testimony given in the Cardwell Case (and which be prepared and furnished whereby the public would be deceived and the good purposes of the law adroitly circumvented and struck down to the ground, it would have been guilty of no libel, although it had further charged that what Mr. Cook did was precisely as bad as what the treasurer did or Mr. Niedringhaus was charged with doing. Nor would it have been libel if the newspaper had drawn a political moral by pointing out that defeat was bound to follow the exposure of such violations of a good law, although persons guilty in that behalf were merely actuated by mistaken sentiments of party pride and fealty as contradistinguished from the general public weal. The premises considered, the sum of the matter is this: In so far as Mr. Cook was charged with violating the heart and intent of the corrupt practices act by taking an active, chief, and accommodating part in con tributions, he may not say he was not (in so far forth) so guilty as to be the fair subject of public criticism. In so far forth as he knowingly and accommodatingly furnished and arranged the data upon which the treasurer made a misleading sworn public statement, we cannot consent that the whole blame should be laid upon the treasurer of the committee as a scapegoat and Mr. Cook be acquitted. The difference between what Mr. Cook actually did and what the Old Politician charged him with doing may not be the difference between tweedledee and tweedledum, but it is not so manifest and great that in estimating his damages the difference between the true and the false can be judicially estimated at $50,000. What are $50,000 to be paid for except for the difference between doing the thing (of which he was not guilty), and preparing the way and means for another to do it (of which he was guilty)? Therefore, we humbly submit that, even if we are to make the judicial attempt to squeeze and wring the prejudice and passion out of a jury's verdict, that commendable and baffling result has not been worked out in this case. But this court has never yet ruled that it will allow to stand for any amount a verdict that is the evil product of passion, prejudice, or favor. With all due deference, the majority opinion plows around that proposition by holding that the verdict was not so enormous as to indicate the presence of those abhorrent influences. In Chitty v. Railroad, most exhaustive and learned review of the authorities upon the question, we held by way of conclusion as follows: "If this was a case where the judgment of the circuit court was otherwise errorless, a remittitur would be proper under the old rule; but, under the law as it is now interpreted, it is a case where the verdict on its face appears to be the result of passion or prejudice (otherwise unjust) which the action of the circuit court has not cured, and the judgment should therefore be set aside." And in a very late case in division 2 (Partello v. Railroad, 217 Mo. 645, loc. cit. 661, 117 S. W. 1138, 1142), it was said of a verdict in a case of tort: "From a reading of the facts disclosed by the record in this case, it is apparent that the amount of the verdict is excessive and beyond reason, and so gross as to shock the sense of justice. It cannot be accounted for upon any theory other than prejudice or passion. That it was largely excessive was tacitly admitted by plaintiff when she remitted therefrom the large sum of $10,000, leaving the verdict yet remaining at an excessive amount. Gibney v. Railroad, 204 Mo. 704 [103 S. W. 43]. We think the ends of justice will be subserved by a new trial." In Rodney v. Railroad, 127 Mo., loc. cit. 691, 28 S. W. 891, the argument turns on the presence or absence of passion and prejudice. Said Brace, J.: "The verdict is large, we think excessive, but not so excessive, under the circumstances of the case, as to induce the belief that it was the result of favor, passion, or prejudice on the part of the jury. The appellant, therefore, is not entitled as of right to have the judgment reversed for this reason." Speaking of "prejudice and passion," they may be traced in no other way except through their visible result in swollen and inflamed verdicts. Sometimes misconduct can be shown and a verdict arrested because of it. Sometimes the cause of the prejudice and inflammation may be traced to improper and bitter invective of counsel or a misstatement of facts. But courts would be powerless indeed if they could not reason from effect back to cause, or if they had no way of discovering passion and prejudice except in palpable misconduct of some one or more jurors in the trial or of misconduct of counsel. In this case no such misconduct appears. Indeed, eloquent counsel for respondent (out of abundant caution) assured us ore tenus that their conduct below was "calm"; that calmness reigned throughout the trial; that calmness (like order at Warsaw, maybe) entered with the jury into their room and presided serenely over their deliberations. We have no disposition to doubt the utmost sincerity of counsel in giving us those assurances. Doubtless, too, counsel felt they were "calm" when they assured us at our bar that, although there never had there never had been in all the annals of time so wanton and wicked a libel, one so free from mitigating circumstances. We were assured, calmly, that, if the columns of the Globe-Democrat containing the libel were put end to end, they would reach from here to Kansas City—a living, scorching flame of slander 150 miles long. It was argued that the verdict was about one dollar for each copy of its Sunday issue, and that a dollar for each was little enough. We were urged, calmly, to sustain the entire verdict because the people demanded at our hands to make an example of the "yellow press." As if it was our judicial duty to smite defendant hip and thigh as a member of the yellow press (calmly assuming it was a member of it) -as if it was our judicial duty to turn a flexible and receptive ear to catch an assumed groundswell of popular or partisan clamor, or become a weather vane to point the way the wind sits, as if we sit to administer revenge and not justice. Though doubting much, we may assume that, although such fervid appeals appear in the dry stick in the appellate court, there was entire "calmness" in the green stick of the trial nisi. And yet, in spite of assurances from distinguished counsel of the calmness below, there was a verdict of such outrageous proportions, in view of the matter of mitigation we have pointed out, as brings a blush spontaneously to the cheek. A $150,000 verdict in a suit for libel, in a case where plaintiff is entitled to damages, but is not shown to have lost a single friend or a single dollar by virtue of an excess of criticism beyond what was just and proper (and such excess plainly existed) is an anxious fact challenging sharp and instantaneous judicial solicitude. For be it always remembered that, if a verdict of that size can stand, then all those litigants who hitherto sailed on the frequented or unfrequented seas of jurisprudence on voyages of quest for the land of the golden fleece of heavy damages quite missed the felicity of sighting it and came home poorer in pocket and consolation because of such failure. There is no such verdict can be found in the savage days of English libel law before the enactment of the Fox libel act. There is no such verdict can be found returned in any reported case in any court in any land since the dawn of civilization so far as my research goes, and I have been persistent and diligent in search. Counsel point out no such verdict. The same remarks are true of the amount allowed to stand by the judgment of my Brethren. There is no other record of a $50,000 libel verdict. If even the inventive imagination of Jonathan Swift conceived of such a verdict as possible in that land of gigantic growths, yclept Brobdingnag, he made no note of it in Gulliver's Travels. The verdict was spectacular, passionate, whimsical, and its grotesque amount earmarks it as springing from tion. When the din and dust of this hour have died away, this verdict will stand as a blot on the jurisprudence of this state. Let us examine the records of the appellate courts of Missouri in libel and slander suits. Those cases include libels and slanders by and of the high and the low, by and of the rich and the poor, the strong and the weak, women and men. Therein damages were assessed for libels and slanders running the whole gamut of possible defamation. The schedule is instructive and fully sustains our estimate of this verdict. Missouri Cases on Libel and Slander, Showing Character of Charge and Amount Recovered. Estes v. Antrobus, 1 Mo. 197, 13 Am. Dec. 496. Slander. "Thief." Judgment for plaintiff. No amount given. Affirmed. Anthony v. Stephens, 1 Mo. 254, 13 Am. Dec. 497. Slander. "Murderer." Judgment for plaintiff for one cent. Reversed and remanded on plaintiff's appeal. Watson v. Musick, 2 Mo. 29. Slander. "Hogstealer," etc. Judgment for defendant. Reversed. Cooper v. Marlow, 3 Mo. 188. Slander. "Forgery." Judgment for plaintiff; no amount given. Reversed and remanded. Adams v. Hannon, 3 Mo. 222. Slander (plaintiff a woman). "I (meaning defendant Hannon) stroked her (meaning plaintiff).” Judgment for plaintiff; no amount given. Reversed and remanded. Williams v. Harrison, 3 Mo. "You stole two of my hogs." plaintiff; no amount given. remanded. 411. Slander. Judgment for Reversed and Dyer v. Morris, 4 Mo. 214. Slander. "She has gone down the river with two whores to a goose-horn." Female plaintiff. Judgment for plaintiff; no amount given. Reversed and remanded. Barnard and Wife v. Boulware, 5 Mo. 454. Slander. Words not given. Plaintiff nonsuited. Affirmed. Hibler v. Servoss, 6 Mo. 24. Slander. "He had sworn a lie. * Judgment for defendant. Affirmed. Moberly v. Preston and Wife, 8 Mo. 462. Slander. "She had a child" (fornication). Judgment for plaintiff for $1,300. Female plaintiff. Affirmed. Judgment for for this office. plaintiff for $100. Affirmed. Sutton v. Smith, 13 Mo. 120. Slander. "Mrs. Sutton stole my corn." Judgment for defendant. Affirmed as to finding; reversed as to costs. Fallenstein v. Boothe, 13 Mo. 427. Slander. "Stole my note." Judgment for plaintiff for $1,000. Affirmed. Gardner v. Self, 15 Mo. 480. Slander. "Stealing a dollar." Judgment for plaintiff for $250. Affirmed. Steiber v. Wensel, 19 Mo. 513. Slander. "Ye are whores." Female plaintiff. Judgment for plaintiff; no amount given. Affirmed. Perselly v. Bacon, 20 Mo. 330. Slander. "Swore a lie before grand jury." Demurrer sustained. Reversed and remanded. Slander. Dowd v. Winters, 20 Mo. 361. "False swearing." Plaintiff nonsuited. Reversed and remanded. Palsey v. Kemp, 22 Mo. 409. Slander. "A rogue;" and "stealing," etc. Verdict for plaintiff for $750. Plaintiff remitted $250. Judgment for $500. Affirmed. Hudson v. Garner, 22 Mo. 423. Slander. "Whore;" "whorish mother"-adultery with a negro. Female plaintiff. Judgment for Affirmed. plaintiff for $3,000. Street v. Bushnell, 24 Mo. 328. Slander. "Theft." Plaintiff nonsuited. Affirmed. Johnson v. Dicken, 25 Mo. 580. Slander. "Stealing corn." Judgment for plaintiff; no amount given. Reversed and remanded. Birch v. Benton, 26 Mo. 153. Slander. "Whipping wife;" "d- -d sheep-killing dog." Judgment for plaintiff; no amount given. Reversed and remanded. Slan Demurrer to Speaker v. McKenzie, 26 Mo. 255. der. "Whipped his mother." petition sustained. Affirmed. Atteberry v. Powell, 29 Mo. 429, 77 Am. Dec. 579. Slander. "Perjury." Judgment for plaintiff; no amount given. Reversed and remanded. Weaver v. Hendrick, 30 Mo. 502. Slander. "Larceny." Judgment for plaintiff for $3,000. Affirmed. Coghill v. Chandler, 33 Mo. 115. Slander. "Larceny." Judgment for plaintiff; no amount given. Affirmed. Curry v. Collins, 37 Mo. 324. Slander. "He is a bushwhacker." Demurrer to petition sustained. Affirmed. Pennington v. Meeks, 46 Mo. 217. Slander. "Stole my hog." Judgment for plaintiff; no amount given. Affirmed. Atwinger v. Fellner, 46 Mo. 276. Slander. Words not given. Judgment for plaintiff; no amount given. Affirmed. Bundy v. Hart, 46 Mo. 460, 2 Am. Rep. 525. Slander. "Burning a barn." Judgment for plaintiff; no amount given. Reversed and remanded. Buckley v. Knapp, 48 Mo. 152. Libel. "Lack of chastity." Judgment for plaintiff |