on each count, aggregating $2,000. Defendant appealed.

1. The first count states the slander as that plaintiff used this language: "Yes; I did accuse Joe Grimes of stealing my corn, and he did steal it, and, by God! I can prove it." The second count sets out that, while plaintiff was residing on defendant's farm as his tenant, he spoke of plaintiff to one Charles W. Stevenson the following false and slanderous words, to wit: "I know I never got all my rent corn off of the ground that Joe Grimes had rented. The corn that Joe Grimes sold to Teidgen was my corn, and I am satisfied that Grimes stole my corn." The words charged in the first count are conceded to be slanderous per se. But it is said that those in the second count are not slanderous, but that they carry along with them a meaning which shows that they could not be. Trimble v. Foster, 87 Mo. 49, 56 Am. Rep. 440. The point made is that plaintiff was defendant's tenant on the shares, and that plaintiff, being in possession of the corn, undivided between landlord and tenant, could not be guilty of larceny. That, however, does not appear from the language used. The utterance does not show the corn was not the specific property of defendant. The language used does not disclose that a larceny could not have been committed. The mere fact that it was "rent corn" does not show it.

2. The petition asked for exemplary damages, and there was evidence offered and admitted in behalf of plaintiff to sustain damages of that nature, and so the jury awarded such damages. But there was likewise evidence in plaintiff's behalf showing mitigating circumstances on the question of such damages. In such state of case, the court gave for plaintiff instructions 3 and 5-the former as to the first and the latter as to the second count-in which the jury were told that, "in making their verdict," they might take into consideration the facts and circumstances admitted in evidence as produced by both parties. A part of the evidence admitted was only competent on account of the claim for exemplary damages, and not for the purpose of proving the truth of the slanderous charge or actual damages. By those instructions the jury were authorized to consider evidence on the charge of uttering the words and of the amount of compensatory damages, which was not applicable thereto, but only applicable to exemplary damages. The instructions should not ignore matters of mitigation (Callahan v. Ingram, 122 Mo. 355, 363, 373, 26 S. W. 1020, 43 Am. St. Rep. 583) when exemplary damages are asked, and mitigating circumstances appear to rebut or lessen malice. In the case just cited, and that of Jones v. Murray, 167 Mo. 47, 66 S. W. 981, it was held that, while evidence of intention and motive was admissible on the question of malice and exemplary damages, yet the jury should be cau

tioned that such evidence should not be considered as a defense to the utterance of the words, nor to reduce compensatory damages. So it is made clear that these two elementsguilt in uttering the false words, with the consequent compensatory damages, and exemplary damages-may become distinct matters, and they should not be confounded and confused in instructions as in this case; the result being that the jury may have allowed evidence applicable to one to have had an influence in determining the other, to which such evidence did not apply.

3. Error was committed in giving an instruction at the instance of the plaintiff that "the jury are themselves the judges of the law of slander as well as of the facts, and they are not required to accept the instructions given by the court as being conclusive of what the law of slander is." In libel cases, whether civil or criminal, the jury, under the direction of the court, determines the law and the fact. Sands v. Marquardt (decided this term) 87 S. W. 1011. That is to say, the court may instruct the jury as to the law of libel in an advisory, but not mandatory, way. The jury cannot be directed peremptorily to find a verdict of guilty in a criminal prosecution for libel, nor for plaintiff in a civil suit, if they believe certain facts, for they are the judges of the law as well as the fact. This is the effect of the law as stated by Judge Johnson in the Sands Case, and is undoubtedly the view of the Supreme Court, as is shown in the cases of State v. Armstrong, 106 Mo. 395, 16 S. W. 604, 13 L. R. A. 419, 27 Am. St. Rep. 361, and Heller v. Pulitzer Pub. Co., 153 Mo. 205, 54 S. W. 457. In criminal prosecutions for either libel or slander, the jury determine the law and fact. Section 2262, Rev. St. 1899.

4. But in civil actions for slander no such innovation on the ordinary mode of trial by jury prevails. Heller v. Pulitzer Pub. Co., supra. It was therefore error in the trial court to instruct the jury that they were the judges of the law, and that they were not bound by the instructions of the court. Such high and exceptional function does not rest with such body in civil actions for slander.

5. As the right and power lodged with a jury to determine the law of libel were called into being in the interest of defendant, and as a restraint upon the authority of judges to direct verdicts of guilty upon the belief of certain facts, it is argued by plaintiff that, since the instruction here was given at the instance of the plaintiff, it had the effect of helping instead of harming defendant, in that it gave the jury the privilege of finding for him, even though they could not have done so but for that instruction. We may concede that, but the fact remains that the instruction likewise gave the jury the authority to disregard the instructions in defendant's behalf, and themselves determine, in the face of such instructions, that he was

guilty of slander, and mulct him in damages therefor. So we hold such instruction in civil actions for slander to be erroneous, whether given at the instance of the plaintiff or defendant.

The judgment will be reversed, and the cause remanded. All concur.

STATE ex rel. ORR, Treasurer, v. GATES. (Kansas City Court of Appeals. Missouri. June 26, 1905.)

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APPEAL-RECITALS IN RECORD CONTRADICTION BY AFFIDAVIT.

A recital in the record on appeal that an affidavit for an appeal was filed on the day the judgment appealed from was rendered is overcome by the affidavit showing that it was sworn to on a subsequent date after the adjournment of court, necessitating the dismissal of the appeal.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Action by the state, on the relation of Thomas A. Orr, treasurer and ex officio collector of revenue, against Joseph W. Gates, for the collection of delinquent taxes. From a judgment for defendant, relator appeals. Dismissed.

W. J. Allen and James McCann, for appellant. Nichols, Pistole & Neville and Jas. F. Graham, for respondent.

ELLISON, J. The plaintiff brought this action to recover taxes alleged to be due the city of Carrollton. The trial was had before the court without a jury, and resulted in fa

vor of the defendant, for whom judgment was entered.

The trial was had and judgment rendered on September 24, 1904, and the record recites that on that day an affidavit for an appeal was filed, and that the appeal was granted. The clerk indorsed on the back of the attidavit that it was filed on that day. But the affidavit itself shows that it was sworn to on October 13, 1904, that being after the adjournment of court. The record stating that the affidavit was filed on September 24th would ordinarily control. It would import absolute verity, unless overcome by some other record of superior probative force. It is well established in this state that though the record recites due and proper service of summons, if the writ itself, with the return of the sheriff, contradicts such recital, the latter will control. So in this case, though the record recites the filing of an affidavit on September 24th, it must yield to the affidavit itself showing October 13th as the date. Cloud v. Pierce City, 86 Mo. 357; Blodgett v. Schaffer, 94 Mo. 652, 7 S. W. 436; Adams v. Cowles, 95 Mo. 501, 8 S. W. 711, 6 Am. St. Rep. 74; McClanahan v. West, 100 Mo. 309, 13 S. W. 674; Williams v. Monroe, 125 Mo. 574, 28 S. W. 853; Bell v. Brinkmann, 123 Mo. 270, 27 S. W. 374. The recital in the record as to the filing of an affidavit for an appeal on September 24, 1904, must be held to be the sort of affidavit shown by the paper itself. Laney v. Garbee, 105 Mo. 355, 16 S. W. 831, 24 Am. St. Rep. 391. The appeal must be dismissed.

cur.

All con

STATE v. CRAIG.

(Supreme Court of Missouri, Division No. 2. July 3, 1905.)

1. HOMICIDe - INSTRUCTIONS MURDER IN FIRST DEGREE.

A person indicted for murder in the first degree, and convicted of a lesser degree of homicide, cannot complain of an instruction as to murder in the first degree.

2. DYING DECLARATIONS-ADMISSIBILITY.

Though deceased, when advised of a change for the worse, said that he did not feel any worse, and that he could not afford to die, his statement thereupon made that he believed he was about to die, and that he had been told by the doctors that he was about to die, and made it as his dying statement, was admissible; it appearing that he had confidence in his physician, and the circumstances tending to show that his opinions as to his recovery had undergone a change, and his death having occurred within three hours after the statement was made.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 429-437.]

Appeal from Criminal Court, Buchanan County; Benj. J. Castell, Judge.

Robert S. Craig was convicted of manslaughter, and he appeals. Affirmed.

F. F. Harl, K. G. Porter, and C. F. Strop, for appellant. H. S. Hadley, Atty. Gen., and John Kennish, for the State.

BURGESS, P. J. Defendant was tried and convicted at the June term, 1903, of the criminal court of Buchanan county, of manslaughter in the fourth degree, and his punishment fixed at two years' imprisonment in the penitentiary, upon an information filed by the prosecuting attorney of said county charging him with murder in the first degree, for having, on the 3d day of November, 1902, at said county, stabbed and mortally wounded with a knife one Walter J. Lincolnhoeger, from the effects of which stabbing and wounding, on the 16th day of November, 1902, the said Lincolnhoeger died. The defendant, Robert S. Craig, at the time of the homicide, was a blacksmith in the city of St. Joseph, Mo., and had in his employ as such the deceased, Lincolnhoeger, and one Philip O. Lucas. Craig and deceased had a difficulty over the location and arrangement of a forge. It seems from the evidence that Lincolnhoeger had placed in position the bellows which was to be used in the operation of the forge, but which did not work well, and Craig was dissatisfied over it. He made some remark to the effect that the bellows did not work to suit him, when Lincolnhoeger retorted, "I guess everybody is damned fools that hangs bellows that way." Craig then walked over to where Lincolnhoeger was standing, and said, "Don't talk back to me in my shop." Deceased replied, "Come outside, and I will whip you in a minute." Craig then said, "I won't go out to fight you." After saying this he (Craig) went into a closet connected with the shop, came out in a few seconds with a big knife 88 S.W.-41

in his hand, went around the closet to where deceased was, and said to him: "You big son of a bitch, shut up now, or I will make you shut up." He then struck at deceased with the knife, and at about the same time deceased struck at him with his fist. Craig cut and stabbed deceased four or five times, when deceased struck him a blow with his fist and knocked him down. Deceased then ran out of the shop, and came near running into a carriage team that was being driven along the street. The driver saw him running out, and a man following him, and checking his team, he (the driver) heard deceased say, "Mr. Craig, please call me a doctor." To this defendant replied (prefixing

the remark with a vulgar epithet), "You ought to bleed to death." The next day, in talking about the difficulty, defendant was shown to have said in the hearing of two persons, in answer to a question as to how the difficulty happened: "Oh, you know my beastly temper. My temper got the best of me." When deceased ran out in the street, Lucas went out to him, and he requested Lucas to get him a doctor; at the same time stating that he was bleeding to death. Lucas took him to a doctor, and his wounds were examined and given surgical attention. The examination disclosed a gash on his left arm just above the elbow; a stab wound on the left side below the arm, and further down another stab between the ribs; a stab wound on the right side between the fourth and fifth ribs; and one or two scratches that did not require attention. It was found that the stab wound on the right side had penetrated through the chest wall and punctured the lung tissue to a depth of about three-quarters of an inch.

The deceased, after his wounds were dressed, was removed to a hospital. His condition seemed to improve at the hospital until the 16th day of November, 1902, when about 7 o'clock in the morning of said day he began to change for the worse. The attending physician arrived about 9 o'clock, discovered the change in the patient's condition, and sent for the prosecuting attorney and his assistant. After they arrived, the doctor advised the deceased of the change in his condition. The deceased answered that he did not feel any worse. The doctor testified: "I said: 'Walter, you are a very sick man, and the chances are all against your getting well. You are sinking now.' He looked at me and said: 'Doctor, am I going to die?' I said: 'Walter, I don't believe you can possibly get well.' He said: 'I can't afford to die.'" The prosecuting attorney then interrogated him, and he made a written statement of the facts concerning his condition, saying he believed he was about to die, and also as to the facts concerning the difficulty between him and the defendant, which statement the prosecuting attorney reduced to writing, read the same over to him, and he signed it. The declaration was signed about

11 o'clock a. m., and deceased died about 1:20 p. m., the same day. The paper read as the dying declaration of deceased was as follows:

"Walter Lincolnhoeger, believing I am about to die, make this statement at 10:55 a. m., this 16th day of November, 1902. On Nov. 3rd, 1902, Bob Craig cut me with a knife. He called me a big son of a bitch. I called him no name. We had an argument first and then we decided to let the argument drop. He went to the closet and then he came out with the knife. I went into a corner to wash and soon he came out, called me the name and he reached up his hand and I saw it was fight. When he pulled his glasses off I knew it meant fight. I don't know who struck first, I think we struck about the same time. He cut me with the knife. I never at any time had any weapons in my hand. I was cut four or five times. I tried to defend myself as best I could. I am 26 years old this month. After our first argument and when we agreed to drop the matter I supposed everything was settledwent to the corner to wash myself and he I went to the closet. He soon came out and took his glasses off, called me a son of a bitch and had his big knife. I was taken entirely by surprise and defended myself as best I could. I am told by the doctors 1 am about to die and make this as my dying statement. [Signed] W. J. Lincolnhoeger."

The defendant, as witness in his own behalf, testified in substance that, immediately before the difficulty, Lincolnhoeger was angry because the bellows put up by him was not satisfactory to the defendant, and began quarreling with the defendant, applying vile epithets to him, and daring him to go outside the shop to fight; that defendant tried to quiet Lincolnhoeger by telling him that he did not want to have any trouble; that, as defendant went back in the shop to get his coat to go home, Lincolnhoeger, using a vile epithet, struck defendant, and then, seizing defendant by the throat, pushed him back in the corner over the sink, and that Lincolnhoeger, while so holding defendant by the throat and striking him with his fist, reached for a rasp which was in a box within his reach, and that then he (the defendant) got his knife out of his pocket and began cutting Lincolnhoeger, who finally knocked him down, and that that ended the fight. The defendant denied making the statement as testified to by the carriage driver, and also denied that he said the day after, in the presence of two other persons, in answer to a question as to how the fight happened, that "my beastly temper got the best of me."

The first point presented for our consideration upon this appeal is the insistence of the defendant that, as there was no evidence of murder in the first degree, the giving of instructions upon that offense was tantamount to the court telling the jury that there was

some evidence of murder in the first degree, which necessarily would have the effect of prejudicing the defendant's rights. The argument is that it is well known that all verdicts are the result of compromises, and it is insisted that the submission of instructions on murder in the first degree, although the defendant was found guilty of a lesser offense, necessarily and logically assisted in causing the verdict of guilty of some offense. Whatever the rule may be in other jurisdictions, it is well settled in this state that, although a person be indicted for murder in the first degree, and convicted of a lesser degree of homicide, he cannot be heard to complain of an instruction on murder in the first degree because not found guilty of that offense. In State v. Fritterer, 65 Mo. 422, the defendant was indicted for murder in the first degree, and was convicted of murder in the second degree, and it was ruled that the effect of the verdict was to acquit the defendant of murder in the first degree; that he had not, in any view that could be taken of the case, been injured or prejudiced by any supposed error in the instructions for murder in the first degree. In State v. Sansone, 116 Mo. 1, 22 S. W. 617, it is said: "The first objection made by defendant to the instructions is that the court erred in giving an instruction for murder in the first degree, but, as he was virtually acquitted of that offense, by the verdict of guilty in the second degree, the supposed error cannot injure or prejudice him, and it certainly constitutes no ground for reversal." State v. Dunn, 80 Mo. 693.

The principal question in this case, and one upon which the defendant chiefly relies for reversal of the judgment, is the act of the court in admitting in evidence a paper writing as the dying declaration of the deceased, which defendant contends was error. It has always been ruled in this state that, in order to justify the admission of dying declarations, the impression of impending and immediate death and absence of any hope of recovery is essential to the admission of such declaration. The evidence in this case discloses that the deceased had been fatally stabbed; that he seemed to improve in the first instance, from the time the stabbing occurred until the morning of the 16th day of November; that about 7 or 8 o'clock in the morning of said day there began a change for the worse in his condition; and that his physician arrived about 9 o'clock, noticed the change in the condition of the deceased, and advised him of that fact. He answered the doctor, saying he did not feel any worse. The doctor said: "Walter, you are a very sick man, and the chances are all against your getting well. You are sinking now." Testifying further, the doctor said: "He looked at me and said: 'Doctor, am I going to die?' I said: 'Walter, I don't believe you can possibly get well.' He said: 'I can't af ford to die.'" Witness Motter testified that

he (the deceased) said at the same time, "Well, I will be ready for the big show." Said witness also testified that the lips of the deceased were then blue, that his breast was rising and falling, that he was gasping for breath, and that he died within two hours thereafter. Deceased declared in the statement itself, which the evidence shows was written down as he made it in answer to questions asked, that he believed he was about to die, that the doctor told him he was about to die, and that he made that as his dying statement. This was read over to him, and he signed it. It is true that, when the doctor told him he could not get well, he said he could not afford to die, which would seem to indicate that he had not then abandoned all hope of recovery; but that he came to a different conclusion, and believed that his end was near at hand, is clearly indicated by the statement itself, in which he says, "Believing I am about to die, make this statement at 10:55 a. m., this 16th day of November, 1902." He died about 1:20 p. m. the same day. While deceased said nothing as to when he expected to die, the question was not asked him, nor was it necessary for the admission of the declaration in evidence that he should have made a formal statement that he was without hope of recovery; but "it is not enough that the declarant should have thought that he should ultimately never recover. The declaration should be made under an impression of almost immediate dissolution." State v. Johnson, 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405, and authorities cited. State v. Nocton, 121 Mo. 537, 26 S. W. 551, in so far as the evidence preliminary to the introduction of the dying declaration of the deceased in that case was concerned, was much the same as in the case at bar, and it was held admissible. In that case there is quoted with approval from 1 Greenleaf on Evidence (14th Ed.) § 158, the following: "It is essential to the admissibility of these declarations, and it is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death, but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that they were made under that sanction, whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinion of the medical or other attendants, stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind. The length of time which elapsed between the declaration and the death of the declarant furnishes no rule for the admission or rejection of the evidence, though, in the absence of better testimony, it may serve as one of the exponents of the deceased's belief that his dissolution was or was not impending. It is the impression of almost immediate dissolution, and not

the rapid succession of death, in point of fact, that renders the testimony admissible." 3 Russell on Crimes (9 Am. Ed.) *250; 6 Am. & Eng. Encyclopædia of Law, p. 108 et seq., and cases cited. In the recent case of State v. Brown (not yet officially reported) 87 S. W. 519, the same subject was again under consideration, and the Nocton Case was followed with approval. While deceased's remark that he did not feel any worse, in reply to his attending physician's statement that the chances for his recovery were all against him, and that he was then sinking, would seem to indicate that he was somewhat surprised, and this, together with his further remark that he could not afford to die, after being told by the physician that he could not possibly get well, tend to show that he was not then apprehensive of immediate dissolution, it is also shown by the evidence that, when informed that he could not get well, he said, "I will be ready for the big show," and that his lips were then blue, his breast rising and falling, and that he was gasping for breath; that he then made the statement itself, which the evidence shows was written down as he made it in answer to questions asked, and read over to and signed by him, in which statement he said he believed he was about to die, that the doctors told him he was about to die, and that he made it as his dying statement; that he died within less than three hours thereafter-all of which tends strongly to show that at the time of making the declaration his feelings and opinions respecting his recovery had undergone a change, in consequence, in all probability, of the statement of his physician, in whom he had confidence, that he could not possibly get well and was then sinking, and that the declaration was made under a sense of impending dissolution. There was no error committed in admitting the declaration in evidence.

With respect to the contention that the evidence shows a case of perfect self-defense, and that the verdict of the jury was not justified by the evidence, it is only necessary to say in regard to the first proposition that it was for the consideration of the jury, under the evidence and the instructions of the court, and that the verdict of the jury was well warranted by the evidence.

Finding no reversible error in the record, we affirm the judgment. All concur.