
    Baldwin v. Fries, Appellant.
    
    DIVISION ONE.
    1. Jurisdiction': appeal. The supreme court has no jurisdiction of an appeal from a judgment for $575 in an action for slander, where no constitutional question is involved.
    2. ---:-: constitutional question. In order to give the supreme court jurisdiction of an appeal upon the ground that a constitutional question is involved in the issues, it is not necessary that the particular provision of the constitution should be set out, but it must appear that such question was involved and that the trial court had an opportunity to and did pass upon it.
    3. --: -: -. A constitutional question cannot be injected into a cause for the first time in the appellate court by argument or brief of counsel.
    
      Certified from Kansas City Court of Appeals.
    
    Remanded to Kansas City Court of Appeals.
    
      Crow & Robinson and Harding & BuTler for appellant.
    
      J. R. Shields for respondent.
   Brace, J.

This is an action for slander tried in the circuit court of Jasper county in which the plaintiff recovered a judgment for $575, from which the defendant took an appeal to the Kansas City court of appeals, and the case certified here by the latter court as “ involving the construction of provisions of the state constitution as shown by the briefs of counsel.”

The slander charged in the petition was, that the said defendant ‘ did say of plaintiff, in the presence of divers and sundry persons, that ‘he (meaning plaintiff) stole corn out of the pen of James McCall; he (meaning plaintiff) is a thief.’ ” The answer was a general denial.

This court has no jurisdiction of this case, unless upon the record it fairly appears that a question is raised involving the construction of some provision of the constitution, state or national. It is not necessary that the particular provision of the constitution should be set out, but it must appear that the constitutional question was involved in the issues of the case, and that the trial court had an opportunity to and passed upon such question ; it cannot be injected into the cause for the first time in the appellate court by argument or brief of counsel. Nall v. Railroad, 97 Mo. 68 ; State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 276 ; Railroad v. Siefert, 41 Mo. App. 35. We find no such question raised or passed upon by the trial court, upon the face of the record in this case. The suggestion of the existence of such a question in the case can be based only upon the fact that counsel for appellant, in their brief, in support of their argument upon propositions of law, cite in two instances a section of the constitution.

The first instance is in their argument against the instructions given for the plaintiff, in which the court, in effect, instructed the jury that if they find that defendant without cause spoke the slanderous words charged in the petition of the defendant, that the law presumes that they were spoken maliciously, and it is not necessary to prove express malice or special damage to warrant a verdict for the plaintiff, and that no cause had been shown. The counsel contend that the instruction was erroneous in that it took from the consideration of the jury the question whether the words were spoken maliciously. After citing several authorities in support of their contention that the jurors must be the judges, whether or not the words were spoken with a malicious intent and mischievous effect, they add in supposed support of tlieir position, “and in slander cases the jurors are peculiarly the judges of both the law and the facts,” citing article 2, section 14, of the constitution, providing that in all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.

The other instance occurs in the argument of counsel for appellant against the instruction for plaintiff, by which the jury were told that if they find that the words were spoken of the defendant by the plaintiff knowingly and wilfully, without just cause, they may give the plaintiff exemplary damages. They contend that this instruction was erroneous in that, oral slander of the character charged in the petition being punishable criminally by fine (R. S. 1879, sec. 1590), to give exemplary damages in such cases would be violative of section 8, article 11, of the constitution, by which it is provided that the clear proceeds of all penalties, forfeitures and fines collected in the several counties, for any breach of the penal laws of the state, shall go to the county public school fund.

This is the substance of all there is in the brief of counsel inviting a consideration of any provisions of the constitution. Their position has been set out simply for the purpose of showing, in addition to the fact that the record does not present a question involving the construction of the constitution, that counsel by brief have failed to inject such a question into the case, even if it were permissible for them to do so. Its transfer to this court was improvidently granted, and the cause is remanded to the Kansas City court of appeals to be proceeded with in regular course.

Sherwood, O. J., and Black, J., concur.  