
    Henn v. Horn.
    
      Actionfor libel — Punitive damages — Evidence by defendant as to his feelings towardplaintiff competent, when.
    
    Where, at the trial of an action for libel, the plaintiff has given evidence tending to show a right to recover punitive damages, evidence by the defendant as to his feelings towards plaintiff, and his motives in the publication, is competent as bearing upon the question of such damages.
    (Decided June 1, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The action below was libel. A verdict in favor of the plaintiff was recovered in the common pleas, upon which judgment was entered. This was reversed by the circuit court, and the plaintiff now asks a reversal of that-judgment.
    White, Johnson, Me CasUn c& Cannon, for plaintiff in error.
    The circuit court held that the common pleas court was right in charging the jury that, unless the defendant had reasonable ground for believing, the libel to be true, the absence of personal ill will, or the belief (without, reasonable cause) that the charge was true, was not a defence, nor did it tend to mitigate damages; and yet the same court held that refusing to admit this testimony was reversible error. We conceive that the only purpose for which evidence is admissible is to assist the jury in coming to a conclusion upon some matter about which the jury are to decide; that evidence which does not have a legal tendency to assist the jury in deciding some of the questions submitted to them is, in a legal sense, irrelevant and incompetent; hence, that evidence, to be admissible, must have a legal tendency to inform the jury either as to.the right, or want of right to recover, or as'to the amount of damages. This may seem elementary, and yet it seems to us that the circuit court must have entirely overlooked the purpose of evidence.
    Black L. Diet., 441; Hotchkiss v. Newton, 10 Ga., 567; 1 Greenl. Ev., sections 1, 2; Wills Oircumst. Ev., 2; 1 Bouv. L. Diet., 544; 1 Whart. Ev., Sec. 3; Stephens Dig. of Law of Ev., Secs. 1, 2; 1 Sutherland on Dam., Sec. 392, 393, 394, 365, 366, 368; Borland v. Barrett, 76 Va., 128; Drohns. Bretoer, 77 111., 280; Benson v. Frederick, 3 Burr, 1845; McBride v. McLaughlin, 5 Watts, 375; Sawyer v. Sauer, 10 Kan., 466; Welch v. Durand, 36 Conn.,. 182; Emblem v. Myers, 6 H. & N., 54; B. <é Y. Turnpike v. Boon, 45 Md., 344; Milwaul&ee, etc. R. R. Oo. v. Arms et al., 91 .U S., 489; Wilkinsons. Dreio, 45 Me., 360; R. R. Co. s. Patton, 31 Mass., 156; M. <& C. R. R. Oo. s. Whitfield, 44 Miss., 466; Raynors. Nimms, 37 Mich., 34; Peckham Iron Oo. v. Harper, 41 Ohio St., 100; Brown s. Evans, 17 Fed. R., 912; Pitts., etc. Ry. Oo. s. Lyon, 123 Pa,. St., 140; Lake Shore c& M. S. Ry. Oo. s. Rosenweig, 113 Pa. St., 519; Ala. St. G. N. S. Ry. Oo. s. Hill, 90' Ala., 71; Barlow s. Loioder, 35 Ark., 492; Harrison v. Ely, 120 111., 83; O. & N. W. Ry. Oo. s. Williams, 55 111., 185; Bauer s. Gottmcmhaus, 65 111., 499; Miller s. Kirby, 74 111., 242; Cochran s. Miller, 13 Iowa, 128; Wiley s. Keokuk, 6 Kan., 94; 
      Boetcher v. Staples, 27 Minn., 308; Louisville <£ N. B. B. Go. v. Ballarcl, 85 Ky. 307; Meet y. Hollenkemp, 13 B. Mon., 219; Kennedy v. North Mo. By. Co., 36 Mo., 351; Green y. Craig, 47 Mo., 90; Storm y. Green, 51 Miss., 103; Holmes v. Carolina Central' By. Co., 94 N. C., 318; Knowles y. Bailroad, 102 N. C. , 59; Bay y. Holland, 15 Or eg., 464; Sloan y. Edwards, 61 Md., 89; Taylor y. Bailway, 48 N. H., 304 ; Champion y. Vincent, 20 Tex., 811.
    We pass, now, to the direct question relative to the rule in actions for libel. In this special action, courts and text writers have sometimes been led astray by the use of the words, “malice in law and malice in fact,” or, “implied malice and express malice,” as if that meant two distinct things. Very much the better opinion is that these two things are precisely the same, the only difference being in the manner in which the ultimate fact is proved, which the law denominates, for the purpose of the action, malice. If a man intentionally • charges another with having’ committed a felony, and does this without having any reasonable grounds to believe the charge true, then, even if there is no personal malevolence, there is yet. either wantonness, recklessness, oppression, or a negligence which indicates a heart regardless of social duty, and regardless of the rights of others. This, for all purposes, civil or criminal, is equivalent to malevolence, and, in the terminology of the action of libel, is as much malice, is as much express malice, is as much malice in fact, as is personal malevolence. Townshend on Slander (pages 130 to 143). Lewis v. Chapman, 16 N. Y., 369; Polkard Starkey on Slander, Sec. 581; Moore v. Stephenson, 27 Conn.; Wynne v. Parsons, 57 Conn., 73; Osborne v. Troup, 60 Conn., 485; Gott 
      v. Pulsifer, 122 Mass., 235; Cotulla v. Kerr, 74Tex., 89; Blocker v. Schoff, 83 Iowa, 265; Barr v. Hack, 46 Iowa, 308 -, Morrison v. Press Pub. Co., 38 N. Y., 357; Newell on Slander, Secs. '320, 13; 322, 18; Commercial Gazette v. Grooms, 21 W. L. B., 292; Hayner v. Voioden, 27 Ohio St., 292; Barling v. Williams, Adrar., 35 Ohio St., 58; Edwards v. Publishing Co., 99 Cal., 431; Childers-v. Mercury P. P. Co., 105 Cal., 284; Bergman v. Jones, 94 N. Y., 51; Holmes v. 'Jones, 121 N. Y., 461; Morey v. Morning Journal Association, 123 N. Y., 207; Warner v. Press Pub. Co., 132 N. Y., 181; Morrison v. Press Pub. Co., 38 N. Y., 358; Van Ingen v. Star, 72 N. Y., 565; Turton v. Ef. 7. Recorder Co., 144 N. Y. 144; Mattice v. Wilcox, 147 N. Y., 624; Webber v. Butler, 81 Hun., 244; Morning Journal Association v. Rutherford, 51 Fed. R.,-513; Post Pub. Co., v. Hallam, 59 Fed. R., 530; Buckley v. Knapp, 48 Mo., 152; Lanius v. Druggist Pub. Co., 20 Mo. App., 32; Wood v. Hilbish, 23 Mo. App., 389 ; Baldioin v. Fries, 46 Mo. App., 288; Callahan v. Ingram, 122 Mo., 355; Regenspevger v. Kiefer, 7 Atl., 724;. Boioden v. Bailes, 101 N. C., 612; Hintzv. Graupner, 138 111., 158; The Evening Hews Association v. Try on, 42 Mich., 549; Maclean v. Scripps, 52 Mich., 214; Park v. Detroit Free Press Co., 72 Mich., 560; Davis v. Marxbauson, 103 Mich., 315; General Laws of Minn., 308; Allens. Pioneer Press Co., 40 Minn., 117; Post Pub. Co. v. Maloney, 50 Ohio St., 71; Rearick-v. Wilcox, 81 111., 77; Sweeneys. Baker, 13 West Va., 158; McWilliams v. Bragg, 3 Wis., 424.
    When it became evident that the only fact known to the defendant was that the plaintiff had altered, with a lead pencil, prior void articles of incorporation, written in ink, the court refused to permit him to testify to his belief or his motives in charging that the plaintiff had committed forgery, until he should offer evidence showing that he had some information of some sort, from some one, that the plaintiff, in making these alterations, had committed forgery, had done it with a fraudulent intent, had done it with a design to have the altered articles pass off as genuine. The slightest examination made of the photograph attached to the record will show that no person could have come to the conclusion that the alterations were intended as a forgery, merely from the inspection of the altered document. Such an intent was necessary to make the alteration a forgery. 2 Bac. Abr., 256; 2 Hawk. P.- C., 104; 2 Bish. Crim. L., Sec. 586, 335 ; 8 Am. & Eng. Enc. of Law, 453; Ex Parte Windsor, 10 Cox, C. C., 118; Queen v. Ritson, L. R., 1C. C. Res., 169; Snyder v. State, 8 O. C. C., 463.
    
      Boynton <& Ilorr; Charles E. Penneioell and Judd, Ritchie <& Esher, for defendant in error.
    The competency of this class of testimony in eases of slander, libel and of malicious prosecution, has been settled by repeated adjudications and by none more clearly than by an adjudication of this court. White v. Tucker, lé Ohio St., 468.
    A plaintiff, in an action for malicious prosecution, must allege and prove two things. He must prove malice and want of probable cause for the former suit or prosecution. Moak’s Underhill on Torts, 164; McKnoion v. Punter, 30 N. Y., 625; Van Perveer v. SuPphin, 5 Ohio St., 299; Smetters v. Rainey, 14 Ohio St., 287; The Atlantic & Great Western R. R. Co. v. Dunn, 19 Ohio St., 170.
    The following cases are to the point, that, to justify the jury in awarding exemplary or punitive damages, there must have been actual or express malice upon the part of the defendant in the publication complained of. Roberts v. Mason, 10 Ohio St., 277; Hayner v. Coto den, 27 Ohio St., 292; Templeton v. Graves, 59 Wis., 95; Drohn v. Brewer, 27 111., 280; Baltimore, etc., R. R. Go. v. Boon, 45 Md., 344; Sheik v. Hopson, 64 Iowa, 146; Foifc v. Blachnar, 64 N. Y., 440.
    The following- elementary authorities and decided cases are in principle in full accord with White v. Tucker, supra; Superintendent of the Poor v. The Superintendent of the Poor, 44 N. Y., 22; Fiedler v. Darrin, 50 N. Y., 443; Thurston v. Cornell, 38 N. Y., 281; Jauvrin v. Fogg, 49 N. H., 341; Delano v. Goodwin, 48 N. H., 203; Wharton on Evidence, sections 482, 508 and 955; Odger on Slander and Libel, 317; Starke on Slander and Libel, 639; Newell on Defamation, 909; Callahan v. Ingram, 26 S. W. Rep., 1020; Post Publishing Go. v. IIal~ lam, 59 Fed. Rep., 530; Haywood v. Foster, 16 Ohio. 88.
    The court erred in not arresting the case from the jury when the plaintiff rested his case. Townsend on Slander and Libel, secton 134 ; Norton v. Ladd, 5 N. H., 203; Waggoner v. Richmond, Wright 173; Van Rensselaer v. Dole, 1 Johns. Cas., 279; 1 Ohio Dig. 759, Apples from my trees, 11 Met., 554; Newell on Del, 117; Frost v. Aeyre, 3 Bulstr., 265; Gamier v. Noonan, 4 Wis., 231; Moak’s Underhill on Torts, 139; Bishop on Non-Contract Law. section 265; Holt v. Scholefield, 6 Term Rep., 691; Thompson v. Berbnard, 1 Camp., 48; Gristie v. Cowell, Peake, 4; Reed v. Ambridge, 6 Carr and P., 308; Zuckerrnan v. Sonnenschein, 62 111., 115; Wing v. Wing, 66 Me., 62; Jackson v. Weisinger, 2 B. Mon., 214; Hall v. Adkins, 59 Mo., 144; Quinn v. (Y Gara, 2 E. D. Smith, 388; Fdgerly v. Swain, 32 N. H., 478; Alleb v. Ilillman, 12 Bick., 104; Newell on Defamation, 305; Abbott’s Trial Evidence, 669.
    The court erred in holding the defense of justification insufficient. Revised Statutes, sections 5093, 5094, 90 O. L., 324; Barret v. Ward, 36 Ohio St., 107; Swan’s Pleadings and Precedents, 522.
    The erasure of the description in a deed striking out the name of the grantee, erasing the acknowledgment or the name of the maker, would each be a material alteration of the deed and within the meaning of the Iowa Statute, would be forgery, yet in neither of these cases, would it be intended to use the altered instrument as and for the genuine one, as in such case with such alteration the deed would be without any legal effect whatever. Hess v. The State, 5 Ohio, 12; Barnhan v. The State, 15 Ohio, 717; Commonwealth v. Bay, 3 Gray, 446; 4 Blackstone, 17; 13 Ency., 466; Laird v. Lhe State, 61 Md., 312; Boode v. The State, 5 Neb., 177; 1 Leech, 405; 2 Bishop C. L., 506; Henderson v. The State, 14 Texas, 517; 2 Bishop C. L., section 572; Section 7091, Revised Statutes.
    The English statute did not define forgery.' Beg v. Biteon, Law Reports, 1 C. C., 200; States. Young, 46 N. H., 266; Commonwealth v. Ladd, 15 Mass., 526; State v. Pierce, 8 Iowa, 231; State v. Wooderd, 20 Iowa, 541; States. Maxioell, 47Iowa, 454; Bishop on Non-Contract Law, 609;. Willson v. Oreen, 25 Vt., 450.
   By the Court.

The ground of reversal by the circuit court was that the court of common pleas erred in excluding the testimony of the defendant Horn, as to his feelings toward the plaintiff, and as to his purpose and intent in writing and publishing the article. It is insisted that the exclusion of the proposed evidence was proper, • because it had not been shown that the relief on which the defendant acted was justified by any facts of which he then had knowledge.

Wé think there was no error-in the holding of the circuit court. The rule, well established by authority and founded in reason, is that, in a suit for libel, the plaintiff having introduced evidence tending to show a right to recover punitive damages, evidence by the defendant as. to his motives in the publication is competent as bearing upon, the question of punitive damages. Whether the alleged belief • is well or ill-founded is a question for the jury.

Other exceptions to the ruling of the trial court were argued, and have been considered. We deem it sufficient to say that we do not find error in the record as to such exceptions.

Judgment affirmed.  