Wilson v. Noonan

35 Wis. 321

• Court: Wisconsin Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinions

Dixon, C. J.

In Neilson v. Columbian Ins. Co., 1 Johns., 301, the defendants offered in evidence the case made on the former motion for a new trial, corrected before the judge, in order to contrast the testimony of .the plaintiff’s two principal witnesses, delivered on the first trial, with their depositions read at the second, and thereby to lessen their credibility. The case was admitted, and, on motion for a new trial, the supreme court said: “The admission of the case made on a former trial, as evidence to show what the witnesses then swore, in order to discredit them at the second trial, was improper. The case is not evidence upon oath. It may have been made up by consent, and the points in contradiction may not'have been particularly attended to by the j udge before whom it was corrected. The case is conclusive against the parties as to the facts contained in it,-but not against third persons, whose veracity or credit is called in question.”

In Baylor v. Smithers, 1 Monroe, 6, the cause had formerly been before the supreme court, and a judgment which had been previously recovered by Smithers, was there reversed, and the cause remanded to the court helow for a new trial of the issue made up by the parties. Upon return of the cause to that court, and on trial of the issue, and after the witnesses whose evidence had been introduced on the previous trial, were examined, Baylor offered in evidence the bill of exceptions taken on the former trial, containing a statement of the evidence then given by the witnesses, for the purpose of impeaching their testimony ; but, on objections taken by Smithers, the bill of exceptions, and the statements of the evidence therein contained, were excluded by the court. It was held on error, first, arguendo, that a bill of exceptions, taken on a former trial, is not competent on a subsequent trial of the same suit, to pi’ove the facts in issue, unless Ihe attendance of the witness cannot he procured; and second, that a bill of exceptions so taken is competent on a subsequent trial of the same cause, to prove what a witness, examined on both, swore on the first, to discredit him. Upon the latter point the court said: “ The statements contained in a bill of exceptions must be supposed to have undergone, not only the inspection of each party or their counsel, but, moreover, the scrutiny and supervision of the court by whom the exceptions are signed. When enrolled, those statements in fact compose part of the record, and are entitled to as much verity, and are deserving of as much credit, as would be the testimony of any witness who might prove what the witness whose statements are contained in the record, proved on a previous trial; and no rule is better settled, and none more frequently acted upon, than that which allows evidence of what a ‘ witness has previously sworn or said, to impeach or discredit his testimony.”

And in Mead v. Walker, 20 Wis., 519, it was decided by this court, that a bill of exceptions settled on an appeal from an order remains a part of the record for all purposes. The language of the opinion by Mr. Justice Downee, is as follows ; “ A bill of exceptions, once signed by the judge and filed, becomes a part of the record, and so remains for all purposes. And the same is true, though there may he several of them in the course of proceedings in the cause.”

We have stated the foregoing cases with some accuracy and completeness, making extracts from the opinions showing the views of the courts, because they are the only adjudications to which we have been referred, or of which we have knowledge, bearing or supposed to bear with any considerable directness upon the admissibility of the bill of exceptions settled upon the former trial of this cause, which was offered and received in evidence on the last trial for the purpose of showing what the deceased witness Arban had sworn on the previous one, and also as evidence competent to be considered by the jury in proof of the facts themselves to which the deceased witness had formerly testified. It will be seen, from the statements and extracts, that none of the cases are precisely in point, although they all assert principles consistent with the admissibility, and even justifying and sustaining it. The New York decision, which excluded the case for the purpose of discrediting the witness, yet held that it was conclusive against the parties as to the facts contained in it. The court of Kentucky decided differently upon the point of discrediting, and gave tó the bill of exceptions the same full and absolute verity and conclusiveness ascribed by law to any record of judicial proceedings, and the same as was given to it by the language of this court above quoted. To ■ prove what the testimony of a deceased witness, orally given on the trial of a case, was, the rule is, of course, that the highest and best evidence should be required. Persons who were present and heard his testimony, and remember what it was, have been held competent to testify on the subject. Is the bill of exceptions, taken and settled on such trial, and purporting to contain all the testimony given upon it, copied and extended from the minutes of a shorthand reporter who is supposed to catch and take down every word, competent to be received and read for the same purpose ? Judging from our own experience, and from what we think has been and is the experience of all lawyers and judges, we must say that the bill of exceptions is the highest and best evidence in such case, and that in the nature of things there can be no other of equal or superior credit or reliability. The mistakes and forgetfulness, nay, even the falsehoods and prevarications, of living witnesses are of too frequent occurrence and familiarity. The record made up from the lips of the deceased witness, with the full knowledge and assent of the parties, of their attorneys and counsel, and of the court, tells the same tale for all time. It is and must be regarded as the very best evidence, unless impeached for fraud in the making, forgery, or something of the kind. It is, in the language of the above authorities, conclusive between the parties, importing verity of the facts it contains; and if not, in the words made emphatic by Mr. Justice Downer, their record for all purposes, we certainly think it is for the purpose of establishing what a deceased witness’s testimony was, in a case like this.

The other exceptions, numerously taken and urged by counsel for the defendant, excepting such as are deemed to have been well taken, must be dismissed with the single observation that we discover no error in the proceedings upon which they are founded, for which we think they or any of them should be sustained. Some of them were ruled and settled when the case was here on the former appeal (27 Wis., 598); and time forbids that we should now enter into any discussion of the others.

The code provides that in an action for libel or slander, “ the defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.” R. S., ch. 125, sec. 27; 2 Tay. Stats., 1444, § 29. The answer of the defendant consists of a general denial of each and every allegation of the complaint, and also a statement of some facts intended to operate as circumstances of mitigation ; but it does not aver as one of those facts that the defendant was not actuated by malicious motives. On the trial, and on examination of the defendant as a witness in his own behalf, he was asked the following question: “ Did you, in that article, charge, or intend to charge, Mr. Wilson or any other person with being bribed to their action in that pending legislation?” The question was objected to by counsel for the plaintiff, and the objection sustained by the court, and the testimony excluded; to which the defendant by his counsel excepted. Some other questions were likewise put to the same witness, the object of which was to show a justifiable motive, or what the defendant so considered, or the absence of malice, in making the publication. They were in like manner objected to and excluded, and the points reserved for the opinion of this court, by exceptions taken on the part of the defendant.

The exceptions thus taken give rise to two questions : first, whether the testimony thus offered to disprove malice was admissible under the general denial; and second, whether it was competent for the defendant, under the circumstances, to testify to the absence of malicious intent in his own mind at the time of publication.

Upon the first, the inquiry would seem to be, whether malice inferred from the libelous character of the publication can be rebutted or disproven without alleging the want of it, as a mitigating circumstance, in the answer. It has been held in some well considered cases under the common law system of pleading and practice, that proof of facts and circumstances rebutting malice and mitigating damages may be made under the plea of the general issue. Huson v. Dale, 19 Mich., 17 (2 Am. R., 66); Jarnigan v. Fleming, 43 Miss., 710 (5 Am. R., 514, 521).

But the provision of the code above quoted seems to contemplate that any mitigating circumstances relied upon by the defendant should be alleged in his answer. The necessity, or at least the great propriety, in most instances, of requiring the mitigating circumstances to be set up in tbe answer, in order that the plaintiff may be informed of their nature and be prepared to meet them, v/ill become apparent upon a moment’s reflection. If the reader will turn to the case of Kennedy v. Holborn, 16 Wis., 457, he will there see how needful it was or might have been to the plaintiff in that action, that she should have been apprised of the mitigating, circumstance's relied upon by the defendant, and which were set up in his answer; and numberless other cases, likely to arise and equally illustrative of the necessity and propriety of the rule, can readily be imagined. We are not prepared to hold, therefore, as a general proposition, that mitigating circumstances may be given in evidence under the general denial. The statute seems to forbid it, and by that we must be governed.

But in B-v. I-, 22 Wis., 372, in slander, this court held that evidence of the plaintiff’s bad character, before the words alleged were uttered, in respect to the particular crime or fault charged, was admissible under a general denial. The reason assigned was, that the plaintiff could not have been benefited by a statement in the answer that evidence of bad reputation for chastity would be relied on in mitigation of damages. The plaintiff was presumed to have come into court prepared to meet any attack upon her general character in that particular. The defamatory words complained of imputed to her fornication and other grossly licentious conduct; and as she came into court relying upon her previous good character in that respect, and probably averring it, as is usual in complaints of the kind, the opposite, or her bad character, was considered fairly within the issue formed by the general denial.

In the complaint before us the averment is, that the defendant did “ maliciously publish and cause to be published the false, scandalous and defamatory matter complained of.” A proper construction of the pleadings might require it to be held, perhaps, that an issue upon the question of malice was thus raised by the general denial.

But we prefer to put our decision upon a somewhat different ground, which is, that where the purpose is to disprove malice (by which we mean bad or wicked motive or intent) by direct evidence, as by the testimony of the party himself, showing or tending to show the nonexistence of the fact, there the absence of malice, thus proved, or offered to be, as a mitigating circumstance, need not be pleaded otherwise than by the general denial. It could hardly be of any practical benefit or advantage to the plaintiff in such a case, to require the defendant, after he has answered by general denial, to answer furthermore that he denies all malice, and will offer direct evidence in support thereof on the trial. So far as wicked motive or bad intent is or may be relied upon as a ground for enhancing the damages against the defendant, so far the defendant may meet and rebut the fact by direct evidence to the contrary, without special allegation in his answer; though, if collateral facts and circumstances be relied upon to show the absence of such motive or intent, they must be pleaded. Such seems to be the fair and reasonable interpretation of the statute, and the meaning which must be ascribed to the words “mitigating circumstances,” as used in it.

And this view seems greatly strengthened when we come to consider that malice or bad intent is not an essential element of the wrong of which the plaintiff complains; not a fact which he must establish in order to entitle himself to verdict and judgment against the defendant in the action. To this rule there ps exception in but a single class of cases, those of privileged communications, where malice, or, as it is sometimes termed, express malice, must be averred and proved. In certain communications denominated privileged, namely, those which are made in the course of judicial proceedings, and some others of a public nature, there exists absolute immunity from liability on the part of the speaker or writer. See Larkin v. Noonan, 19 Wis., 82, and authorities cited. In all other actions for libel and slander, malicious intent constitutes no part of the issue, but is or may be considered only as a circumstance in aggregation of damages. Actual damages, that is, compensation for injury to the reputation and injury to the feelings, or for mental sufferings, so far as the same can be measured in money, to which may be added also any actual pecuniary loss, in proper cases or where that ensues, may always be recovered, regardless of the intent or conception of mind with which the publication was made, or words spoken, or whether such intent was good or bad at the time in the writer or speaker. If A. untruly says of B.,tkat he is a thief, in a communication not privileged, then, no matter that A. may say so under circumstances which induce him truly and sincerely to believe that B. is a thief, and which show he is actuated by no bad motive or evil design to injure B., yet he is bound to make reparation to B. for such loss or damage as B. actually sustains.

The views thus expressed respecting the nature of the action, and that malice is not a necessary ingredient of the wrong complained of, are the same advocated by that most discerning and accomplished writer, Mr. Townshend, in his treatise on the wrongs called slander and libel, and on the remedy by civil action for those wrongs. Townshend on Slander and Libel, §§ 82. to 92, inclusive, and notes. With his usual philosophical insight and just and accurate appreciation of the principles involved, the author has made this, like many other points discussed by him, very plain and intelligible. As is expected, indeed required, in works of the kind, he has, with much industry and patient research, placed before his readers an abundance of authorities, as well those supposed to be against as those which favor the rule for which he contends. There is upon this point, as upon too many others, much indifferent and bad law scattered up and down in the books; and the author seems to have found it quite as.easy, if not easier,.to refer to law of this sort as to that which was good. In note 84 will be found the authorities sustaining his views, and among them are such great names as Lord Bacon and Lord Mansfield, with others of lesser distinction and celebrity. In note 85 the opposite authorities are collected. This court.finds still less difficulty in agreeing with the learned writer, from the fact that the point was expressly so adjudicated in Sans v. Joerris, 14 Wis., 663. It was there held, for the reasons and upon the authorities found in the opinion of the majority of the court, that, though the jury found the libel was published without malice or design to injure, yet the action could and should be maintained, and a verdict of not guilty could not be justified on that ground.

In § 88, Mr. Townshend states the rule of pleading, that it is not necessary to allege malice m the declaration, and refers to some adjudged cases, and among others to Duncan v. Thwaites, in the King’s Bench, 3 B. & C., 556, 585, where Abbott, C. J., delivering the opinion of the court, says that an allegation of malice in a declaration for libel is u rather to. exclude the supposition that the publication may have been made on some innocent occasion, than for any other purpose."

Considering, therefore, the nature of the action, and that malice, whether it be such as is inferred from the libelous publication itself, or such as is superadded or proved by evidence of other facts and incidents, is a mere.circumstance in aggravation, -used only to enhance the damages by way of punishment to the defendant and for public example, it seems the more appropriate that evidence of the absence of it, that is direct evidence of the kind here spoken of, should be admitted under the general denial; and it seems also the more clear that it was not the intention of the provision of the code above referred to, to exclude it. Counsel for the plaintiff contends, and he sustains himself by numerous references, that it is competent for the plaintiff, without specific allegation or any thing in the complaint to point to the facts to be proved, to introduce evidence and accumulate proofs of malice, aside from and beyond that to be implied from the publication itself, for the sole purpose of enhancing the damages to be recovered. If this is so, and we do not question it, it is manifest, as to the aggravating circumstances so proved, that the plaintiff has decided advantage over the defendant, who, when it comes to the mitigating circumstances relied upon by him, must spread them upon the record by proper allegations in his answer. This may be looked upon as a very unfair rule; and yet it seems to follow from the provision of the code in actions of this nature.

And here it seems proper to correct what may be an erroneous impression derived from the language of the former opinion in this case (27 Wis., 610, 611), that there is or may be a distinction, in actions of this kind, between express malice or malice in fact, and implied malice or malice in law, such that the former may be rebutted or disproved, but that 'the latter admits of no disproof or explanation. The language seems also to proceed ou the theory that malice of some kind, at least that which is called implied, is necessary to sustain the action. Rejecting that theory, as we now do, it follows that we must also reject the supposed distinction between the different kinds of malice, which in truth seems never to have rested on any good foundation. Mr. Townshend, in the sections above referred to, has exhausted the learning upon this subject, and has helped as to what we consider the true explanation of the terms “ express malice ” and “ implied malice,” as used in the law. It is that given by that distinguished lawyer Nicholas Hill, in argument in Barry v. The People, 10 N. Y., 123. Mr. Hill says: “ The term express malice originally meant malice proved •independently of the mere act from which death resulted, and implied malice, the reverse. They therefore described only different modes of proving actual guilt, not different degrees of it; and they belonged to the law of evidence, and not to a definition of homicide. They did not even indicate different degrees of evidence, both kinds, when sufficient, being conclusive until over ■ come. And they were applicable to every case where proof of the actual intent was requisite to characterize the offense.”

And the same definition is given by Selden, J., in Lewis v. Chapman, 16 N. Y., 372, which was an action for libel. He says: “It has been sometimes divided into legal malice or malice in law, and actual malice or malice in fact. These terms might seem to imply that the two kinds of malice are different in their nature. The true distinction, however, is not in the malice itself, but simply in the- evidence by which it is established; In all ordinary cases, if the charge or imputation complained of is injurious, and no justifiable motive for making it is apparent, malice is inferred from the falsity of the charge. The law, in such cases, does not impute malice not existing in fact, but presumes a malicious motive for making a charge which is both false and injurious, when no other motive appears. Where, however, the circumstances show that the defendant may reasonably be supposed to’have had a just and worthy motive for making the charge, there the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff, other proof of its existence. It is actual malice in either case; the proof only is different.”

In this case, therefore, the bad intent or malice implied from the communication, unless indeed it may be said conclusively to appear therefrom-, is as much the subject of disproof or refutation as would be that malice which is sometimes termed express. The same kind of malice, that is, actual malice, is intended by both expressions.

And this brings us to. the second question above stated, which is, whether it was competent for the defendant to testify that he did not intend to charge the plaintiff with being bribed. The publication complained of is certainly calculated to convey that impression, and for that reason has been pronounced defamatory and necessarily injurious to the character and feelings of the plaintiff on its face. For the impression thus produced, and the injurious consequences which followed, that is, for all actual damages sustained by the plaintiff, the defendant must respond in this action, without regard to his intent in the particular named. It was a wrongful and injurious act in him, whatever his intent or motive may have been. If he intended falsely to charge the plaintiff with bribery, it was a wicked and malicious act, for which he should in addition be punished with vindictive damages or smart money, according to the circumstances of aggravation. On the contrary, if this last was not the character of the act, then only compensatory damages should be given. Does the communication necessarily and conclusively show an intent — a secret and invisible purpose in the mind of the defendant — to charge the plaintiff with bribery? Or, notwithstanding such may be the impression produced by the words, may the intent not have been wanting? Is there no room — no just or rational ground — for doubt or speculation upon the point ? It is well known there is nothing about which people so habitually differ as the meaning of words and sentences, or the ideas and intentions of speakers and writers designed to be expressed by them. Lawyers and courts are busy all their lives long explaining, expounding and determining their meanings, so frequent and s.o constant are the cases of doubt. Upon recurring to the language of the publication itself, and perusing it carefully, we cannot discover any certain and indubitable evidence that it was in the mind of the defendant, when writing it, to charge the plaint; iff with being bribed. It is possible he may not have-had such intent; and, being possible, other evidence on that subject was admissible to show its absence, and to be considered by the jury in connection with the question whether vindictive damages should be given or not.

Upon the question as to what intent or intention is, Mr. Townshend, who seems to have explored the fields of moral and mental philosophy as well as of the law (§ 83), says: “ Intent or intention is a mental conception — an existence. It. is a fact, impalpable, intangible, invisible, but nevertheles a fact. The existence or nonexistence of an intent or intention, and its character, are always questions of fact. Save the declarations of the individual in whose mind the intent is supposed to exist, we can have no direct testimony as to the existence or nonexistence of any intent, or its character. Save such declarations we can have none but indirect testimony. That indirect testimony is the inference we may draw from Ms acts.” In a note to the same section he refers to the case of Clift v. White, 12 N. Y., 538, where Marvin, J., says intention is a fact. He refers also to Seymour v. Wilson, 14 N. Y., 567; Griffin v. Marquardt, 21 N. Y., 121; and to Forbes v. Waller, 25 N. Y., 439, in which it was held that a witness may be asked with what intent he did an act, but his evidence is not conclusive. . He furthermore cites certain cases in which it has been held that the question is not permissible, as where the intent may be or must be inferred from the act. People v. Saxton, 22 N. Y., 309; Parker Mills v. Jacot, 8 Bosw., 161; Ballard v. Lockwood, 1 Daly, 164. The note then proceeds : “We are not aware of the right to put the question as to intent having been mooted in an action for slander or libel. We suppose it could not properly be put in any action for slander or libel, because we are of opinion the question of mere intent can never be material in those actions. But assuming that intent is or may be material, then the’question might be put in connection with a state of facts which discloses a qualified legal excuse. In our opinion the decisions show the rule to be: you may inquire into the intent directly, as by inquiring of the party, in eases where the intent is material, and the act complained of is as consistent with a good intent as with a bad intent, but in no other cases. (Booth v. Sweezy, 8 N. Y., 281; Ellis v. The People, 21 How. Pr. R., 356; Powis v. Smith, 5 B. & A., 850).”

Differing from the author as to the view that intent may not become material in an action for slander or libel, that is to say, bad intent or malice, when urged as a ground for enhancing the damages, we concur with him in saying that direct evidence, as by the testimony of' the party, may be received to disprove it, wherever the act complained of is not clearly and necessari-Ij inconsistent with the supposition that such bad intent or malice did not or may not have existed. Such, we think, was this case, and such the error in excluding the testimony offered by the defendant.

We also think it was error to refuse the fifth instruction asked for by the defendant. In some respects inaccurate, according to the views expressed in this opinion, though not materially or fatally so under the circumstances, the leading idea or principle embodied in that request was correct, and the jury should have been so instructed.

For these errors the judgment appealed from must be reversed. and a venire de novo awarded.

By the Court— So ordered.

Mr. B. .G. Ryan, in behalf of the respondent, moved for a rehearing; and the motion was granted, and the following opinion filed, at the June term, 1873.

The court sees no occasion for receding from' the- general principles of law laid down in the opinion, or doubting their correctness, but is in very considerable doubt whether correct rules of practice have not been overlooked and departed from in the application of those principles to the present case. It is argued in support of the motion for a rehearing,. that the whole discussion of the question of malice, in the opinion, and when and how it might be disproved by the defendant in mitigation of damages, has no foundation in the bill of exceptions. Quoting the question cited in the opinion as the foundation of the discussion, counsel argues as follows : “Rut it is not a question calling for motive, justifiable or unjustifiable, or touching malice in any way. It is a question of construction of the libel. The writer of the libel is on the stand. He is asked nothing of his motive. He is asked what he intended in the article; that is, by the article.' It is not a question of what he intended out of the libel, but what he intended in the libel. It is a pure question of the meaning of the libel. It was put to give the appellant an opportunity of overruling, under oath, the construction put upon it by the judgment of this court.” The same course of argument is pursued, and it applies with equal force to the other questions put to the defendant, and which are referred to in the opinion. All the questions are quoted in the printed argument of counsel, and further and more careful examination has satisfied us that there is some ground for the criticism, and for supposing that such was the purpose for which they were put. We must say that they look to us mow very much like mere questions of construction of the libel; and if such was their nature or the object with which they were asked, their inadmissibility is obvious. But if such was not the intention in asking them, yet if they were so framed as to exhibit that intention, or to lead the court below and counsel opposed to believe that such was the object, and at the same time not to disclose that the purpose was to show a justifiable motive or the absence of malice in the defendant, they are equally defective, within the rules of practice in such cases as settled by the decisions of this court. And these are the matters as to which this court is in doubt, and which it desires to hear discussed-on the reargument of this cause. The rehearing has been ordered for this purpose.

In Beard v. Dedolph, 29 Wis., 136, 143, this court had occasion to consider a similar question ; and it was there held that although the general rule is indisputable, that, when evidence offered is competent for any purpose, it should be received, and to reject it will be error, yet it is the duty of a party, when evidence offered by him is excluded as being inadmissible for the purposes for which it was offered, to inform the court if he had any other purpose in view in making the offer; otherwise its exclusion cannot be alleged for error on appeal, on the ground that it 'was admissible for such other purpose. This court decided that the purpose of the offer there made was apparently the illegitimate and improper one, and that the court below mast have so understood it when the evidence was excluded. The correct practice in such cases is indicated by the following remarks in the opinion : “ Parties cannot come to this court for the correction of errors or mistakes of this nature, which, on mere suggestion, would have been corrected or avoided in the court below. It is their duty to speak and make known their purposes and objections there, when the same are necessary for the proper information and guidance of the court, and no.t, by their silence or mode of presenting their claim or defense, to lead the court unwittingly into error, upon a point not brought forward for its consideration, and not considered.”

Other decisions of this court showing.the particularity of exception required' when necessary to direct the attention of the court or counsel to the precise point of objection, are cited in Kellogg v. Railway Co., 26 Wis., 286.

Ry the Court. — Motion for rehearing granted.

Upon the rehearing, the cause was argued by Mr. Ryan and Mr. Fraser for the respondent, and by Mr. Smith for the appellant. Mr. Ryan argued, in substance, that if, in such actions, the defendant, as a witness in his own behalf, can be permitted to testify directly'as to the question of malice, still the questions put to him must call only for his mental consciousness as to his own feelings toward the plaintiff, and his purposes in regard to him, in making the publication —whether he was actuated by malevolence towards plaintiff, or had a desire to injure him in his feelings, reputation or interests ; that none of the questions put to defendant on the trial of the present cause were of this character, but all of them either called for the defendant’s construction of the article pomplained of, or pertained to matters entirely irrelevant, and having no proper bearing on the question of malice ; and that even if any of these questions were susceptible of the construction now claimed for them — that they were questions bearing upon malice — it was obvious from the bill of éxceptions that they were not so understood in tbe court below, either by the judge or by the plaintiff’s counsel, and that defendant's counsel did not disclose the fact that the evidence was offered for that purpose. Mr. Fraser, among other things, contended that where the offer of evidence which is rejected is open to two constructions, one of which is not legitimate, the part}7 making it cannot insist, in a court of review, on the construction most favorable to himself, unless it appears that he was so understood by the court. Keller v. Railroad Co., 24 How. Pr., 172, 185; Daniels v. Patterson, 3 N. Y., 47, 51; Chapman v. Brooks, 81 id., 78, 88; Beard v. Dedolph, 29 Wis., 136, 143-4. 2. That there is a distinction between the intent to do an act, and the intent to produce the consequences of the act (Townshend, §§ 78, 79); that it is the intent to injure which constitutes malice, and the absence of which may be sometimes shown in mitigation of damages (Town-shend, § 87, note 75; Viele v. Gray, 18 How. Pr., 550, 564); and that in libel, the question whether defendant intended to make a certain charge, and whether he did malee such charge, are questions calling for a construction of the alleged libel.

Mr. Smith argued that the intention of the defendant in writing the article was a legitimate subject of inquiry as bearing upon the question of malice, or the degree of his guilt, and the amount of damages ; that in such cases intention and motive are synonymous; and that it was obvious from the record that the questions rejected were asked for the purpose of showing that the article in question was written with good intentions, and without malice, not for the purpose of defeating the action entirely by establishing defendant’s construction of the article, but for the'purpose of mitigating the damages ; and that the court, in overruling these questions, proceeded upon the theory that the absence of malice could be shown only by proof of the facts and circumstances, and not by the direct evidence of the defendant on that subject. He further argued that the judgment must be reversed for the refusal of the five instructions which this court hold should have been given.

The following opinion was filed at the January term, 1874: