REYNOLDS, P. J.
(after stating the facts). — We have given sufficient of the record, as we think, to an understanding of the questions involved in this' case, and possibly more fully than justifiable. But we have done so with the desire of bringing out the salient features of the case necessary to make intelligible what we. have to say concerning the law of slander. For some reason that law appears possibly the most involved of any branch treated of by our courts. It would seem that all men ought to know what is slander; that this is within the understanding of the everyday, ordinary man. True, our statutes and the common law have defined certain words as slanderous per se and give a right of action for their utterance. It would seem to the ordinary lay mind that if a man calls his neighbor a thief, whether he was doing it in the heat of passion or in cool and calm deliberation, and particularly when he accompanied it with an oath or a vile epithet, that he had uttered a gross slander against his neighbor, unless it was true that that neighbor was a thief. It would also naturally occur to every one that when one so slanders his neighbor he should be made responsible for his slander — his punishment mitigated, however, when he spoke under great provocation and in the heat of passion. Yery commonly, instead of the application of such an epithet, or other slanderous language, resulting in a peaceable action in the court to recover damages for the slander, as is the case here, there has been a physical assault, and, in very many cases, the courts have been called upon to determine whether the utterance of such language should be given in evidence in mitigation of the punishment of the man against whom they were uttered for having violently assaulted or even killed the [42]*42slanderer. We very much doubt whether the ordinary man is able to appreciate the refinement of reasoning which attempts to say that, if the subject-matter of the theft, that is to say, the articles charged to have been stolen, are not capable of being stolen, and the person who heard the language uttered knew that the thing spoken of was not capable of being stolen, therefore the utterer of the slanderous words had not really called the taker a thief, and should not be held responsible for the slander. It would likely appear to the mind of the ordinary man that if one falsely and maliciously calls his neighbor a thief and accuses him of stealing that which is not the subject of larceny, the slander is the greater. But the authorities hold that to constitute actionable slander the words must relate to a crime which the plaintiff could in fact commit. This is the defense in this case, as against the first, second and third counts in the petition. However unreasonable the rule may appear, support is found for it in many decisions of the courts. See among others Lemon v. Simmons, 57 L. J. Q. B. 260; Williams v. Stott, 1 Cr. and M. 675; Israel v. Israel, 109 Mo. App. 366, 84 S. W. 453; Hall v. Adkins, 59 Mo. 144; Christal v. Craig, 80 Mo. 367; Legg v. Dunleavy, 80 Mo. 558; Trimble v. Foster, 87 Mo. 49; Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. It will be seen that in the 10th and 11th instructions given at the instance of the defendant, the learned trial judge gave the defendant the benefit of this line of defense. They are substantially the defendant’s instructions correctly altered by the insertion of the caution that defendant must be found to have spoken the words without malice.
In all the instructions given at the instance of plaintiff, the court very carefully directed the jury that they must find for the greater weight of the eAddence in the case that the defendant spoke the slanderous words as charged in the counts in the petition, or enough of the exact words charged to constitute the crime of lar[43]*43ceny against the plaintiff; and the court further charged the jury that the law presumes they were spoken maliciously and that it was not necessary to prove express malice in order to warrant a verdict for the plaintiff. The jury were further told that if they found a verdict for the plaintiff they were not confined to the actual damages the plaintiff may have sustained, but in addition thereto may allow exemplary damages, if they found the words were spoken with express malice. We see no error in this except it be that it is rather too favorable to the defendant. The words being actionable per se, unless the jury found that they related to facts or acts, which though charged as a crime could not have been one, the law presumes malice. The court distinctly instructed at the instance of plaintiff that the jury should find separately on each count of the petition and the jury did so. The instructions given at the instance of the defendant certainly placed the case before the jury in the most favorable aspect possible for him. We have set them out in our statement of the case and it is not necessary to repeat them here. It is difficult to imagine any instructions which could more clearly and favorably present defendant’s theory of the case to the jury. There are no serious errors assigned to the admission or exclusion of testimony and no pretense that the words charged to have been uttered or “enough of the exact words charged to constitute the offense charged,” had not been proven.
Adopting the theory of defendant that it is not slander to accuse one of being a thief because the articles taken are fixtures and not subjects of larceny, we cannot agree with the contention of counsel for appellant that all of the articles referred to were of the realty or fixtures, and that the instructions asked on that theory were improperly refused. It appears that the bracket, which was one of the articles referred to, was an iron bracket, fastened to the wall it is true, but which the plaintiff had been in the habit of moving from [44]*44house to house as he changes his location. The posts referred to were not in place but were lying on the ground. As far as we can gather from the testimony, the wood referred to was cordwood, firewood, cut for use. The instructions asked and refused treated all these articles as fixtures. The question of fixtures, as applied to such articles, is a mixed question — one of fact and of law — and the defendant’s refused instructions concerning them were misleading. The other refused instructions were correctly covered by those given.
Error is assigned against several of the instructions which are to the effect that if the jury found from the evidence in the cause that the defendant “within two years prior to the-day of-, 1907, spoke of and concerning the plaintiff,” the language charged in the several counts, etc., plaintiff could recover. It is claimed that this extended the Statute of Limitations to a period of three years instead of confining it to two years, and in support of the alleged error we are referred to Sutton v. Smith, 13 Mo. 120. There is no question that the Statute of Limitations of this State limits the bringing of an action for slander to two years. The action in this case was commenced the 28th of January, 1908. Several of the counts of the petition, as noted, charge that the conversations in which the language was used took place “on the-day of-, 1907.” It is very probable that this date in the counts is what caused the error in the instruction, but there is no pretense whatever in the evidence that any of the conversations relied upon occurred prior to January or-February, 1907, so that while it was error in the instructions to run the statement back to two years prior to 1907, under the evidence in the case and under the pleadings it was harmless error.
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REYNOLDS, P. J.
(after stating the facts). — We have given sufficient of the record, as we think, to an understanding of the questions involved in this' case, and possibly more fully than justifiable. But we have done so with the desire of bringing out the salient features of the case necessary to make intelligible what we. have to say concerning the law of slander. For some reason that law appears possibly the most involved of any branch treated of by our courts. It would seem that all men ought to know what is slander; that this is within the understanding of the everyday, ordinary man. True, our statutes and the common law have defined certain words as slanderous per se and give a right of action for their utterance. It would seem to the ordinary lay mind that if a man calls his neighbor a thief, whether he was doing it in the heat of passion or in cool and calm deliberation, and particularly when he accompanied it with an oath or a vile epithet, that he had uttered a gross slander against his neighbor, unless it was true that that neighbor was a thief. It would also naturally occur to every one that when one so slanders his neighbor he should be made responsible for his slander — his punishment mitigated, however, when he spoke under great provocation and in the heat of passion. Yery commonly, instead of the application of such an epithet, or other slanderous language, resulting in a peaceable action in the court to recover damages for the slander, as is the case here, there has been a physical assault, and, in very many cases, the courts have been called upon to determine whether the utterance of such language should be given in evidence in mitigation of the punishment of the man against whom they were uttered for having violently assaulted or even killed the [42]*42slanderer. We very much doubt whether the ordinary man is able to appreciate the refinement of reasoning which attempts to say that, if the subject-matter of the theft, that is to say, the articles charged to have been stolen, are not capable of being stolen, and the person who heard the language uttered knew that the thing spoken of was not capable of being stolen, therefore the utterer of the slanderous words had not really called the taker a thief, and should not be held responsible for the slander. It would likely appear to the mind of the ordinary man that if one falsely and maliciously calls his neighbor a thief and accuses him of stealing that which is not the subject of larceny, the slander is the greater. But the authorities hold that to constitute actionable slander the words must relate to a crime which the plaintiff could in fact commit. This is the defense in this case, as against the first, second and third counts in the petition. However unreasonable the rule may appear, support is found for it in many decisions of the courts. See among others Lemon v. Simmons, 57 L. J. Q. B. 260; Williams v. Stott, 1 Cr. and M. 675; Israel v. Israel, 109 Mo. App. 366, 84 S. W. 453; Hall v. Adkins, 59 Mo. 144; Christal v. Craig, 80 Mo. 367; Legg v. Dunleavy, 80 Mo. 558; Trimble v. Foster, 87 Mo. 49; Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. It will be seen that in the 10th and 11th instructions given at the instance of the defendant, the learned trial judge gave the defendant the benefit of this line of defense. They are substantially the defendant’s instructions correctly altered by the insertion of the caution that defendant must be found to have spoken the words without malice.
In all the instructions given at the instance of plaintiff, the court very carefully directed the jury that they must find for the greater weight of the eAddence in the case that the defendant spoke the slanderous words as charged in the counts in the petition, or enough of the exact words charged to constitute the crime of lar[43]*43ceny against the plaintiff; and the court further charged the jury that the law presumes they were spoken maliciously and that it was not necessary to prove express malice in order to warrant a verdict for the plaintiff. The jury were further told that if they found a verdict for the plaintiff they were not confined to the actual damages the plaintiff may have sustained, but in addition thereto may allow exemplary damages, if they found the words were spoken with express malice. We see no error in this except it be that it is rather too favorable to the defendant. The words being actionable per se, unless the jury found that they related to facts or acts, which though charged as a crime could not have been one, the law presumes malice. The court distinctly instructed at the instance of plaintiff that the jury should find separately on each count of the petition and the jury did so. The instructions given at the instance of the defendant certainly placed the case before the jury in the most favorable aspect possible for him. We have set them out in our statement of the case and it is not necessary to repeat them here. It is difficult to imagine any instructions which could more clearly and favorably present defendant’s theory of the case to the jury. There are no serious errors assigned to the admission or exclusion of testimony and no pretense that the words charged to have been uttered or “enough of the exact words charged to constitute the offense charged,” had not been proven.
Adopting the theory of defendant that it is not slander to accuse one of being a thief because the articles taken are fixtures and not subjects of larceny, we cannot agree with the contention of counsel for appellant that all of the articles referred to were of the realty or fixtures, and that the instructions asked on that theory were improperly refused. It appears that the bracket, which was one of the articles referred to, was an iron bracket, fastened to the wall it is true, but which the plaintiff had been in the habit of moving from [44]*44house to house as he changes his location. The posts referred to were not in place but were lying on the ground. As far as we can gather from the testimony, the wood referred to was cordwood, firewood, cut for use. The instructions asked and refused treated all these articles as fixtures. The question of fixtures, as applied to such articles, is a mixed question — one of fact and of law — and the defendant’s refused instructions concerning them were misleading. The other refused instructions were correctly covered by those given.
Error is assigned against several of the instructions which are to the effect that if the jury found from the evidence in the cause that the defendant “within two years prior to the-day of-, 1907, spoke of and concerning the plaintiff,” the language charged in the several counts, etc., plaintiff could recover. It is claimed that this extended the Statute of Limitations to a period of three years instead of confining it to two years, and in support of the alleged error we are referred to Sutton v. Smith, 13 Mo. 120. There is no question that the Statute of Limitations of this State limits the bringing of an action for slander to two years. The action in this case was commenced the 28th of January, 1908. Several of the counts of the petition, as noted, charge that the conversations in which the language was used took place “on the-day of-, 1907.” It is very probable that this date in the counts is what caused the error in the instruction, but there is no pretense whatever in the evidence that any of the conversations relied upon occurred prior to January or-February, 1907, so that while it was error in the instructions to run the statement back to two years prior to 1907, under the evidence in the case and under the pleadings it was harmless error.
The claim made that plaintiff cannot recover under the third count- in the petition because the witness Norris was acting as agent of plaintiff in going to the house [45]*45of defendant and eliciting from him the expressions concerning plaintiff for the purpose of bringing and sustaining this action, cannot be upheld. The proof does not warrant the instruction in the form in which it was asked on this matter.
The issue as to the slanderous words having been uttered in passion and anger was set out in the instructions which were given at the instance of the defendant much too favorably for defendant. These told the jury that if the words were spoken in anger and passion plaintiff could not recover. This is not the law. Passion and anger may be given consideration by the jury, not to defeat the action, but in mitigation of damages. This is so fully covered by the decision of this Court in Israel v. Israel, supra, and the subject so thoroughly discussed there that we do not think it necessary to elaborate on it. See also Callahan v. Ingram, supra; Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668; Gray v. McDonald, 104 Mo. 303, 16 S. W. 398. We are also of opinion that this was a case in which it was proper for the jury to award punitive damages, if under the instructions of the court they chose to do so. The instructions given at the instance of the plaintiff on that were correct; the one asked by defendánt was properly refused.
Without attempting to go into any fuller examination of the evidence, we hold that there is sufficient evidence to sustain the verdict of the jury against the defendant on the first, second and third counts: of the petition.
The verdict against the defendant on the fourth and fifth counts of the petition cannot be sustained.
The action for damages for slander in many of its features is essentially a criminal action, one which the law allows the party slandered to prosecute as for a verbal assault upon his character. By our statute, Revised Statutes 1899, sections 2258 to 2262, libel or slander against a living person or against the memory of the [46]*46dead, is a misdemeanor punishable as such. In addition to the criminal prosecution, the law allows the party injured to sue and by way of punishing the wrongdoer, under the name of damages, practically imposes a fine, which the law allows the subject of the assault to collect by civil action. The same particularity, generally speaking, is necessary in the averments of the petition to recover these damages as is required in an indictment or a criminal information. Without setting them out in full, it is enough to say of the fourth and fifth counts of the petition that the spoken words charged, not being slanderous per se, there are no averments made in those counts which in and by themselves show that forgery was intended to be charged. As for instance, it is not set out that the defendant had signed the papers; that his signature had been forged; that material alterations had been made in the contents or bodies of the contracts referred to; in short, there are no averments, considering the counts with every possible intendment that is allowable to be made, which can be held to distinctively set up that the defendant had charged the plaintiff with such acts as constituted the crime of forgery, as that crime is known at common law or defined by statute. [Curry v. Collins, 37 Mo. 324; Krup v. Corley, 95 Mo. App. 640, 69 S. W. 609, and cases cited; Julian v. Kansas City Star Co., 209 Mo. 35, 107 S. W. 406.] The objections to any testimony as to these counts should have been sustained, or, that overruled, the demurrer to the evidence, so far as it related to them, should have been sustained.
We affirm the verdicts and judgment on the first, second and third counts of the petition. The judgment will be reversed and the cause remanded to the circuit court on account of these errors as to the fourth and fifth counts, with directions to set aside the verdict on the fourth and fifth counts of the petition and the judgment in the case, and to enter up a judgment in favor of plaintiff for the amount of the verdict returned on [47]*47the first, second and third counts of the petition, and in favor of defendant as to the fourth and fifth counts. The costs of the appeal in and to this court will he divided between plaintiff and defendant, one-half thereof taxed against each. The costs in the circuit court will be taxed against the defendant.
All concur.