Egan v. Dotson , 36 S.D. 459 ( 1915 )

GATES, J.

Action for -defamation by^ libel. The plaintiff was a camdi-date for Governor of this state at -the primary election held in June, 1912. On May 25, 1912, there was published in the S-io-ux Falls D-aily Press the following article under the heading, “South Dakota Exhanges,” the same being a reprint of articles theretofore published- in -the Egan Express, Bradley Globe, Huronite, Faul-bton Advocate, and Meadow Herald, respectively:

“That I-owa Record. Egan Express: But that there- m-ay be no un-due advantage taken -o-f Mr. Egan, we make the following offer:

“We charge that Geo. W. Egan, while residing in- Harrison county, Iowa, -did rape not less than tw-oi defenseless women; that on account of his disreputable acts, H¡on. O. D. Wheeler, judge of the 'district court, upon the complaint of a man named Bert Weed, appointed a commission consisting of three reputable lawyers, viz., Tom C. Smith, Ambrose Burke, and C. W. Kelley, to investigate and report to the court their findings; that said committee did investigate and presented to said district court a formal accusation, accusing George W. Egan of conduct unbecoming an attorney, of attempt to avert justice, of contempt of court, crimes and misdemeanors. And after reciting the matter as ascertained by the investigation, the said commission concluded the report to the j u-dge as follows : ‘Wherefore, we pray the license of said George W. Elgan to practice 'law in the said district court be revoked and held for naught, and that -the cost of the proceedings be taxed to the said George W. Egan;’ that George W. Egan was not disbarred in Harrison county, Iowa, because his father-in-law, an eminent and honorable member- of the Iowa bar, promised that Egan would leave the state of Iowa on -condition that the disbarment proceedings should go no further. This investigating committee filed -its report at 2:3o p. m. January 28, 1907, and Egan was admitted to practice in- South Dakota -in November the same year. Mr. Voter, -draw your own conclusions.

“We might go on and prefer other serious charges, but these are enough to show any fairmin-ded man what kind of a human being George W. Egan is, but it is unnecessary.

“Now as to. our offer:

“If George W. Egan will write out a statement denying these -charges, and go before a notary public -and swear to- it, accompanied by a notarial seal, we will publish the denial and give it the same publicity we give to the -charges.

“Bradley Globe: Even if Geo. W. Egan was telling the truth, which- he seems unable to -do, what -claim' has he to- become Governor of South Dakota after a four years’ residence, and bringing with him the -reputation of a scoundrel and a libertine. A man who was as -good as chased -out of his town and home state and who was disbarred -from the practice of law in this state for practically stealing $10,000 from a crazy woman, wh-o •afterward died in a lunatic asylum — b-ahi! A man must have a grudge against himself and every one else that would -for a moment consider this man’s candidacy for the executive head of the state of South Dakota.

“Huronite: It is the opinion of this newspaper that -the state association of liquor dealers and brewers is malting a mistake in promoting the gubernatorial' aspirations of' George W. Egan. It could no more depend on him than could others, in the event of his success. He is willing to promise all things that he would be utterly unable to deliver. Should the liquor -dealers succeed in foisting him upon the people of this state, it would be held in a measure responsible and th-e man or organization that assumes, responsibility for Egan would be taking a big chance.

“Faulkton Advocate: .From everywhere around the state comes the cheering news that the voters are lining up behind Frank Byrne, regardless o-f -faction. Egan gets som-e applause but Mr. Byrne, is getting the votes. And the .people are onto George, George of the wavy hair- and flashing -eye, George of the stage tricks and tainted -reputation. Mr. Byrne has -long sin-ce punctured his flimsy arguments and George is now running on 'his personality. George may -be a good sho-w, but for Governor the -people want a man of ability, sanity, and integrity, and not a vaudeville -performer. Naturally they favor Mr. Byrne. And it is a fact that the keenest observers, o-f' political conditions are conceding the nomination to Mr. Byrne.

“Meado-w Herald: If we wanted a man to sell gold bricks, lightning -rods or school Chants, we should apply to Geo-rge W. Egan, prince of hot-air merchants, but just now we are interested in securing th-e nomination for Governor of an honest, clear-headed, constructive statesman.”

On May 31, 1912, there was published in the Sioux Falls Daily Press the following article:

“Compare the- Two Men.

“Frank Byrne has been a resident of (the state for 33 years. He is t-o-day lieutenant governor of the state. He has been a member o-f the state Legislature for three terms. The kind o-f public citizen- he is is shown by his legislative record. He is directly responsible for much of the best legislation which today is on the statute books of the state.

“Is -there anything he has done as a -private -citizen -o-r as a member o-f the state senate, or as lieutenant governor you don’t like, or that indicates that he has been or is on the wrong side of public affairs?

“No one has heard' his private character attacked.

“No one charges him as being a dishonest man.

“He has never been charged with being hooked up with corporation deals.

“He has been a farmer' with South Dakota farmers.

“No one is ashamed to be seen in his company.

“He has never been arrested for any alleged crime.

“He is not today before the country bemeaning citizens who may not be his supporters. He hasn’t that kind of a tongue, nor disposition.

“He has never had enemies so mean as to cause him to go into courts to -defend his character. He seems to be above and immune from such enemies.

“He dees not believe that South Dakota is afflicted with a class of citizens who with no good reason and without cause will try to defame their fellow men.

“George W. Egan has been a resident of the state for five years.

“He came from Eogan, Iowa.

“The record is 'that -two separate cases were brought against him charging him with having' committed rape.

“Disbarment proceedings were stalled against him shortly before he left that place.

“He was disbarred by the Supreme Court of South Dakota.

“He went before the court and asked to. be reinstated. If was. refused.

“He went again before the court and asked to he reinstated,, all this after he had gone about the state denouncing the members of that court and writing matter in his paper denouncing-them, and on this last occasion apologized for what he had said! and .printed and begged to- be forgiven, and there acknowledged! that he ¡had been treated justy by the court and their charges; against him were true.

“He says he came to South Dakota with more than thirty thousand dollars. The record shows that he paid $20.46 in taxes, in Iowa the year he moved to South Dakota.

“He says that he spent his fortune defending his character in Sioux Falls.

“Never in the history of South- Dakota, as state or territory, has there ever been a man who- has gone about the state vilifying citizens as George W. Egan has done and is doing.

“He has abused people until he has -more enemies among men, women and children of South Dakota than any other man, a hundred times over.”

At the time of said publications the defendant C. L. Dotson was the proprietor and publisher, and the defendant C. B. Dotson, his son, was the editor, of said newspaper. In his complaint the plaintiff alleged that the charges contained in said articles were false and were published maliciously, and demanded damages in the sum of $50,000. The defendants answering separately, denied the falsity of the charges, denied malice, alleged that the articles were caused to be published by the editor without the knowledge or .procurement of the publisher, alleged facts tending to show that the same were privileged, alleged matters -tending to show justification, alleged good faith and honest belief on the -part of the editor in the truthfulness of the charges, and alleged matters tending to show that the editor had reasonable cause for believing in their truthfulness, which answers cover 46 pages of the printed record. Upon the trial the jury rendered- -a verdict in-favor of plaintiff .and against the defendants for $1,000. A motion for a new’ trial was denied, and- the cause comes before us upon a printed record of 795 pages, with 478 assignments of error, one of wh-idh contains 62 subdivisions.. Manifestly time and space forbid the consideration of all of said alleged errors. We shall therefore consider only a few of the more important questions raised.

It appears to uis that the case can be best considered by first setting out such of the instructions which the court gave the jury as are material to the- questions considered. They are as follows, the paragraph numbers being ours:

(4) “Understand that libel must be a false publication. So< far as -an article, though it may reflect on one’s character, is true, it is not libel in a civil action, and the truth of the article, if established, is a complete defense; or, so far as the evidence shows that the article was true, so far it would not constitute libel -or entitle the plaintiff to any damages.”

(5) “The defendants further in their answer set up various matters which do not constitute a defense, but are in the nature of mitigation of damages in case the jury should find that the plaintiff -is entitled to recover and entitled to damages.”

(6) “Anything or any evidence or testimony or record which has 'been permitted and introduced under the ruling of the court which does not prove the truth of the charges made by the defendants in their newspaper cannot he considered by you as a defense in this action, but, if considered at all, should be considered in mitigation of the damage done to the plaintiff, if you find under the evidence and these instructions that the plaintiff has been-damaged.”

(7) “Regarding the evidence, you observe that there was a great deal of evidence, some of -which is record evidence introduced. A word- in regard to that: Respecting the records in the Daisy Hunt case and the Anna Christenson case claimed to have been brought and -disposed of in the district -court of Harris-on county, Iowa, and the 'petition or claims of the said Daisy Hunt and the said Anna Christenson, -respectively, in said -cases, which have been introduced in evidence, you are told that you are not to use these petitions and -complaints as evidence of the facts therein stated nor as evidence of the claim that the plaintiff in this suit committed the crime of rape or any other crime or offense. As to such matters, yo-u are told that these petitions an-d records are merely hearsay evidence and not evidence of the fact. They were admitted only for the purpose of showing that -such suits were, in fact, brought in the district court of Harrison -county, Iowa, an-d the nature of the suits -and how they were determined.”

(8) “The same remark -applies, gentlemen, to- th-e record evidence introduced from the Harrison county record in regard to the proceedings in that county brought against Mr. Egan for disbarment. Tbe petition and other allegations there are not to be taken as evidence of the faots therein stated, bu-t as legal papers in the form of proceeding's in law bringing the matter before- the court for determination.”

(9) “In this class of cases, where the plaintiff was a candidate for a public office at th-e time of the publication of -the article in question, and where the articles themselves -relate to him as such candidate, no recovery can be had against th-e defendants for the publication, however false they ma-y be, provided the defendants honestly and in good faith, without express malice, believed, under circumstances warranting such belief, the articles t-o be true, although the defendants were, in fact, mistaken. Both: bad fai-th of the defendants and the falsity of the articles in whole or in part must coexist to entitle the plaintiff to- recover in this action."

(io) “The plaintiff toeing a candidate for nomination to the office of Governor of this state at the time of the publication in question, and- the defendant C. L- Dotson being the publisher of a newspaper, and the defendant C. B. Dotson being the editor thereof, and both said defendants being residents and electors of the_ state of South Dakota, and being -therefore interested along with all other electors and- citizens of -the state in the choice of a proper person for -that office, they were entitled to consider and discuss in tíre said newspaper the character, reputation, and qualifications of the plaintiff for such office.”

(n) “You are instructed that the law is that -the fitness and qualifications of a candidate for an elective office may be the subject of the freest scrutiny and investigation, either by a proprietor of a newspaper, or -by a voter, or a person having an interest in the matter, and' that much latitude must be allowed in the publication for the information of voters of the character and the fitness of a candidate for office for the place he seeks. Nor will such a publication be actionable without proof of express malice, although it may be harsh, unjust, and unnecessarily severe; for -these are matters of opinion, of which the party making the publication has a right to judge for himself. In the case of such a publication, the occasion rebuts the inference of malice which the law would otherwise raise from the falsity of the article, if it be false, -and no- right of action exists even though the character of the plaintiff has suffered in this -case, unless he is able to show the existence of actual malice.”

(12) “Malice cannot be inferred or presumed from -the mere fact o-f the publication o-f the articles or either of them -in question. It must be shown or established by some evidence outside -o-f and beyond the fact of the publication of the articles -themselves, and, unless actual malice is so- shown, your,verdict must be for the defendant.”

(13) “To constitute actual or express malice which the plaintiff must establish >to your satisfaction to entitle him to- recover, he must show by a preponderance of the evidence that in. publishing the articles in question, or one of-them, the defendants made use of the privilege which is accorded to- all' newspapers to discuss the moral character and the qualifications and fitness of -candidates for office, as a cover or a means or the occasion for publishing false statements, if you find the statements so -published were in any material respects false.”

(14) “The articles in question are not privileged, .regardless of their contents, and -even though portions or all of them relate to the plaintiff’s qualifications for the office -o-f' Governor, provided you find that they were maliciously published or published with malice on the part of th-es-e defendants-, as it is the law that, if express malice is shown to -exist at the time of the publication -of the articles, they are not privileged within -the meaning of that term ■given, and, if they -were false and untrue, or any material portions of .the-m. false or untrue, and the .plaintiff has sustained -damages because of such untruthful portions of said articles as in other portions of these instructions- -defined-, the plaintiff -would- be entitled to your verdict for such damages.”

(15) “Actual malice in uttering the false statements may consist either in a direct intention to- injure plaintiff or in a reckless disregard of his rights and the consequences that may result to him.”

(17a) “And, if you find from- all the facts and circumstances and evidence in- -this -case that the articles complained of were published by the -defendants w-ith- malice, and damages resulted to the plaintiff as -an approximate cause thereto-, you should -then proceed to- estimate the- damage -done to the plaintiff and in this connection y-o-u should consider his profession -and his standing as a lawyer and lecturer, his standing as a -citizen in the community, and all other facts and circumstances which would enable you to reach a true and- just verdict in -the -premises.”

(21) “Of course, the 'burden -o-f proof rests upon the plaintiff to make ou-t his -case by a preponderance of -the evidence. Upon any affirmative allegation of the defendants’ answer in regard to whether .the matter was true or false, the burden rests upon the defendants to establish that issue.”

Appellants ex-cepted to paragraphs 5, 6, 7, 8, 13, 15, 17a, and 21.

[1] There are two- radically divergent views of the law of privilege or criticism of a candidate for office:

“The weight of authority seems to favor what may be considered as the narrow view, which is to the effect that, while fair criticism and comment on the merits and demerits of candidates for office are privileged, if made in good' faith, false statements of facts are not privileged.” Ann. Cas. 1914C, 997, note.

This so-called narrow view is supported by decisions from the United States courts and from, a majority of the states. It is chiefly such decisions that respondent has cited -in his brief and upon which he relies.

The other view is thus stated:

■ “What may be properly called the liberal view, and one which has the sanction of considerable authority, is that a charge made against a candidate for office is privileged if the person making it 'believes in the truth of the charge and has probable ground for his belief, for which purpose hearsay suffices, regardless of the .fact that the charge is a false statement of fact.” Ann. 'Cas. 1914C, 1000, note.

In other words, if a publication is not malicious, it is privileged under this rule, whether true or false. This view obtains in Iowa, Pennsylvania, Minnesota, Kansas, North Carolina, and Texas. In the year 1900 this court determined' that the so-called liberal view conformed to a proper interpretation of our Constitution (art. 6, § 5) and of subdivision 3, § 31, of our Civil Code. This view has been consistently adhered to ever since, and is the settled law of this state. Myers v. Longstaff, 14 S. D. 98, 84 N. W. 233; Boucher v. Clark Pub. Co., 14 S. D. 72, 84 N. W. 237; Ross v. Ward, 14 S. D. 240, 85 N. W. 182, 86 Am. St. Rep. 746; Rood v. Dutcher, 23 S. D. 70, 120 N. W. 772, 20 Ann. Cas. 480; Schull v. Hopkins, 26 S. D. 21, 127 N. W. 550, 29 L. R. A. (N. S.) 691; Howe v. Thompson, 35 S. D. 1, 150 N. W. 301; Niblo v. Ede, 35 S. D. 359, 152 N. W. 284.

The question of what is or what is not libel is largely controlled by constitutional and statutory provisions. In many of the states we find no legislative definition of “libel,” but South Dakota has suchi definition. Section 29, C. C., says:

“Libel is a false and unprivileged publication by writing, ■printing, picture, effigy or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him, in h'is occupation.”

Again, many of the states do not have the legislative enactment contained in subdivision 3 of section 31, C. C., which is as follows:

“A privileged communication is one made: * * *

“3. In a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing- the motive for the communication innocent, or who is requested by the person interested to give the information.”

With such provision omitted, and without the above legislative definition, the law of libel in this state would be as contended for by respondent — i. e., the so-called narrow view. But subdivision 3 of section 31, C. C., and other subdivisions of that section were enacted for a purpose; viz., to prescribe under what circumstances false statements will not constitute civil libel. Manifestly the decisions of courts from states which do not have such statutory provisions are not persuasive in determining the law as to privileged communications. With the wisdom of such legislative enactments the courts cannot be concerned. It must be remembered, however, that by our Constitution and statutes it is left to the jury to' find, from all of the evidence, whether or not a defendant aoted maliciously; and they may find that he so- acted if they are satisfied that he did not make such an investigation as to the truth of the charge as the nature of such charge and all the surrounding circumstances demanded. No one can have any doubt but that juries will hold those who seek to defend on the ground of privilege to a line of duty, pertaining to the investigation of the truth, which will be strictly in accordance with their ideas of what a defendant should have done in view of the gravity of the charges made.

[2] Testing the instructions by our statutes as interpreted by the decisions cf this court above cited, we find the law clearly and admirably stated in instructions 4, 9, 10, 11, 12, and 14, and in instruction 13, except as hereinafter qualified, but instructions S and 6 flatly contradicted those rules of la,w, and seem to have been given under the theory of the narrow view above stated. The matters covered by instructions 5 and 6 were admissible, not only in mitigation of damages, but as tending to rebut malice. Instructions 3 and 6 could not have failed to confuse the minds of the jury as to the law of the case, and were extremely prejudicial.

[3] The same may be said of the exclusion of evidence offered by defendants -touching the publication of certain articles in the Sioux City News and Sioux City Tribune, and much other evidence, tending to- show the reputation of respondent, of which the defendant editor claimed to have had knowledge, and upon which he claimed to have relied when Ire caused the articles in question to be published. The defendants were entitled to offer any evidence which tended to show their good faith in making these publications, and which tended to show they had reasonable cause to believe the articles were true, not only in mitigation of damages, but as tending to rebut express malice. Proof of prior publications in newspapers, proof of prior circulation of pamphlets containing matter similar to the articles complained of, proof of the reputation of plaintiff at the time of the publications, proof of former court records, and all proofs of like nature were admissible to disprove malice upon a showing that defendant editor had knowledge of them at the time he caused the articles to be published, and that he made such reasomble investigation of their truth as the circumstances required. Marks v. Baker, 28 Minn. 162, 9 N. W. 678; Hewitt v. Pioneer Press Co., 23 Minn. 178, 23 Am. Rep. 680; Mayo v. Sample, 18 Iowa, 306; Coogler v. Rhodes, 38 Fla. 240, 21 South. 109, 56 Am. St. Rep. 170; Wrege v. Jones, 13 N. D. 267, 100 N. W. 705, 112 Am. St. Rep. 679, 3 Ann. Cas. 482. This is true even to proof of general reputation known to defendant, and is true for the reasons lately announced in Roskay v. Hessenius, 36 S. D. 163, 153 N. W. 936. Such matters were also admissible in mitigation of damages, regardless of knowledge on the part of defendant, because a reputation already tarnished is not as valuable as one which is perfectly sound. Wetherbee v. Marsh, 20 N. H. 561, 51 Am. Dec. 244. In this view instructions 7 and 8 were also unduly restrictive. The evidence referred to therein ■was also admissible as bearing upon the question of express malice.

[4, 5] We are of the opinion that instruction 15 was also- unduly restricted and misleading. In the first place, the language of tire first line assumes that some of the statements were false, which was a question for the jury. In the second place, the words “direct intention to injure plaintiff” should have been qualified or further explained. It is only the injury contemplated by section 29, C. C., supra, for which plaintiff could recover damages. If the statements were false, but made in good faith, for the purpose of defeating plaintiff for the nomination for Governor, they did not amount to evidence of express malice, although the effect of losing the nomination may have been an injury to plaintiff. They had a perfect right to use their utmost endeavors to defeat the nomination of plaintiff if they considered him unfit for the office, provided they acted without malice. The fact of his defeat was not to be considered by the jury in estimating his damages. It is not enough that there be a “directed intention to injure plaintiff” in order to constitute malice. The act must be “wrongfully and intentionally done with an evil mind and a wish to injure.” Bouvier, Law Dict.; Baxter v. Campbell, 17 S. D. 475, 97 N. W. 386; Hemmens v. Nelson, 138 N. Y. 517, 34 N. E. 342, 20 L. R. A. 440; Davis v. Hearst, 160 Cal. 143, 116 P. 530.

[6] As also bearing- upon the question of malice, we may observe that, while proof of dislike or ill will is competent evidence upon the question of malice, still the court should have instructed the jury that dislike or ill will may exist, and yet actual malice be entirely wanting. If defendants honestly believed in the truthfulness of the charges published, they might, as good citizens, entertain a feeling of dislike and ill will towards defendant. It would he a strange rule of law that would sanction a verdict in an action for libfel against a. defendant who- disliked the plaintiff, who believed in the truth of the charges, who had reasonable cause for such belief, and who published the charges from good motives, and, on the other hand, would not sanction a verdict against one who was a total stranger to plaintiff, who entertained no feeling of dislike or ill will toward him, and who, actuated by the same motives, and believing in the truth thereof, and with the same cause for such belief, published' the same charges. The jury should have been instructed in accordance with defendants’ proposed instruction No. 34.

[7] Instruction 13, standing alone, would be misleading: If between the word “defendants” and the words “made use of the privilege” near the middle of that instruction the learned trial court had inserted the following clauses: “Knowing the same to be false, or in reckless disregard of its truth or falsity, intentionally” — then that instruction would have been entirely unobjectionable.

[8] We do not find that the exception to instruction 17a was argued; hence that matter is not herein considered.

[9] Instruction No. 21 was in accord with the decision of this court in Boucher v. Clark Pub. Co., supra, wherein it was held that the burden was upon the defendant to prove the truthfulness of the charge.

[10] Defendants, both by objections interposed bo evidence offered and by instructions requested, sought rulings to the' effect that, even though malice be established as to one of the defendants, yet : (1) It must still be shown that suda malice was! malice which was connected with the publication; (2) proof of actual malice on the part of one defendant is insufficient to> sustain a verdict against the other — in other -words, the malice of one defendant cannot be imputed to the other. It is perfectly ¡clear that, Where actual malice is an ingredient of the offense, the defendants are .right in their contentions. A. may be an enemy of B., and yet before publishing a qualifiedly privileged article concerning B. he may make every reasonable investigation into its truth, and in all good faith, publish the article believing it to be true. A. would be no more liable for such publication than C. would have been under the same circumstances, even though C. was not unfriendly to B. Of course, the enmity of A. ma_v be shown as bearing upon the question of malice in the publishing of the article, but no cause of action is established unless the malice of A. is proven and found to be the real moving cause leading to¡ the publication. In the case before us there is absolutely no evidence that the publisher directed either .publication or knew of them until after the))- were published. If, then, he had malice toward plaintiff, such malice was unconnected with' the publication unless there is evidence that he Ratified ¡the acts of his agent, or'unless it be shown that he was reckless in the extent of power conferred upon the editor. Malice cannot be imputed to one defendant from proof of malice of tire other. No conspii-acy is alleged or proved. The publisher of a paper, knowing of the absolute falsity of certain publications! clipped from other papers, and moved by a spirit of malice toward the subject of such publications, may turn them over to the editor with »a demand that they be published together with an editorial based thereon. The editor, who- is not advised of the publisher’s motive or his belief in the falsity of the articles, but who himself has made a careful and reasonable investigation of the truth, of the articles, -and has arrived at an honest belief in their truth, obeys the instructions of the publisher. The malice of the publisher cannot be imputed to the editor. Nothing but proof connecting the malice of the publisher with the editor's volition in publishing the articles and editorial will render the editor liable. The reverse of this is true. If the publisher, in good faith, believing in the truth of it, should direct the editor to write -an editorial along a certain line, and the editor, knowing that such an editorial would be false, yet, prompted by malice, and without disclosing to the publisher his knowledge and his motives, .publishes such editorial, while the editor would be holden therefor, the publisher would be no more holden than if he had been both publisher and editor and in good faith and without malice had published the article. Krug v. Pitass, 162 N. Y. 154, 56 N. E. 526, 76 Am. St. Rep. 317. Keeping in mind the above propositions, the record reveals: (a) That there was much evidence received that was absolutely immaterial and irrelevant; (b) that the trial court erred, in not then and there ruling, when certain evidence was received, that it was only received as against the particular defendant to whom it purported to relate; (c) that the trial court erred in not giving some of the requested instructions.

[ 1 1 ] The truth of nearly all of the charges contained in the second publication and of some of the charges contained in' the first publication was established by uncontradicted testimony. The trial court should have directed the jury to disregard and eliminate from- the case those matters so proved- to- be true.

[12] In his opening -statement to the jury before evidence was offered, the plaintiff, as his own counsel, grossly violated permissible practice. Section 255, C. C. P., provides as follows:

“When the jury has been sworn, the trial must proceed in the following order, unless the judge, for special reasons, otherwise ■directs:

“1. The plaintiff, after stating the issue and his case, must produce the evidence on his part.

“2. The defendant may then open his defense, and offer his evidence in support thereof.”

Instead of complying with sudivision 1 of this section, the plaintiff, before the taking of evidence had begun, and when purporting to make his opening- statement to the jury, gave unsworn testimony in detail, not as matter he expected to. prove, but as actual facts, coming- from his own mouth as an unsworn witness, in which the statements were almost entirely made in the first person singular. The defendants interposed 52 objections thereto, which were overruled by the court. This opening statement, with the objections and rulings, covers 16 pages of the record. It is not feasible to reproduce the same in this opinion. Suffice it to ■say that the function of the opening- statement is to ‘briefly state the issues and briefly outline what the plaintiff expects to prove. The right of a person to try his own case does, not contemplate the privilege of giving testimony three times in the same case, viz: As an unsworn witness in the “opening- statement”; as a witness under oath; and again in his closing argument. In Zucker v. Karpeles, 88 Mich. 413, 50 N. W. 373, the court said:

“We do not think it proper for counsel, in opening to the jury, to enter into a detailed statement of the testimony by which he expects to substantiate the facts of his case. He should call the attention of the jury to the salient points and what he expects to establish, and not re¡>eat to the jury the evidence by which he expects to prove the points -claimed; the object of the opening being to assist the jury to understand the testimony as it is introduced and the bearing it has upon the issues involved. We think, when counsel confine themselves to these objects, they will find no disposition upon the part of the courts to- interfere with their opening.”

See, also, Abbott’s Civ. Jury Trials (3d Ed.) 148.

[13] It might -be fairly urged that such opening- statement, if made by an attorney for plaintiff, instead of by plaintiff himself, would be nonprejudicial, even though improper in style and contents, were it not for the fact that it contained statements not afterwards proven, nor attempted to be proven, matters as to •which proof was inadmissible, and much in the way of argument, the purpose of which could only have been to arouse prejudice in the minds of the jurors. Following are examples of some of such statements:

“Gentlemen of the jury, we are glad when our fellow man rises; but we are not glad when they walk over the prostrate form of or assassinate the character and destroy the hopes and the honorable life of a fellow citizen. * * • *

“Gentlemen of the jury, the court will tell you — I know the law, and you are the judges of how this would affect a man, taking into consideration his life, 'his scholarship, his professional standing as a lawyer, as a lecturer, and all those things. Wha-t crime more heinous or offensive to charge a, man with! Fie would not dare to speak unkindly of me or harshly of me on the streets of your city; but he- drives a dagger into my heart when I am away from home. * * *

“Accusing me of' stealing $10,000 — not 'blowing up a bank, ■because that would take courage, but of steáling $10,000 from a orazy woman, and of raping at least two defenseless women.

“When' I went from Watertown to Lake Campbell, men who had seen this article said' to me. * * *

“They could not support me. I came to Sioux Falls. Men said, 'Our wives and daughters deny us the right to support you.’

“A rapist, a kind of a human -they burn, that is the kind of a man who is running for Governor — a rapist.”

We are entirely satisfied that the effect of this kind, of an opening statement was extremely prejudicial to defendants.

[14-18] We next come to the question of the misconduct of plaintiff as his own counsel in his argument to 'the jury. The condensed epitome of the portions . objected to by defendants as improper and outside of the evidence, and as -an irregularity and misconduct, covers more than 14 pages of the record, and is manifestly too long to reproduce. It was replete with matters not in evidence and beyond legitimate inference from facts in evidence. The argument was mostly addressed. to the jury, but sometimes defendant addressed the audience. It was calculated to arouse the passion and prejudice of the jury. What was said by this court of' this plaintiff’s, argument,in the case of State v. Kaufmann, 22 S. D. 433, on pages 448, 449, 118 N. W. 337, is largely applicable here. Some of the objectionable utterances are as follows:

(a) “Up to this time there has been nothing derogatory to Mr. Egam in the paper, and the 20th day of May, 1912, Mr. Byrne came down here, and what was said I don’t know; but I’ll tell you what I do know Byrne came here. The article was published. Egan’s- friends are driven aw-ay from him. Byrne is elected. Mr. Dotson is made a member of the hoard of charities and corrections.”

There was no- evidence that Mr. Byrne went to Sioux Falls on May 20, 1912, or at any time, -and this same assertion was also made by plaintiff in his opening statement to. the jury:

(b) “I know what he was trying to get the Becker woman to say, and stopped him by physical force, and I would have stopped him by physical force had I been there when he took the Wilson deposition.”

The Becker deposition was not offered in evidence, nor- was, to ere any evidence that such a deposition had ever been taken, and plaintiff had no .right to refer to- it. The Wilson deposition was -offered in evidence. Niot only was it grossly improper for plaintiff to tell the jury that he stopped- the taking of a deposition by physical violence, but also that he would have similarly stopped the taking of the other one if he had been present. We take this opportunity of saying that, in making such statement, plaintiff confessed that .he had once committed an-d, if present at -the opportune time, would again have comrnitteed, an act which was not only a most serious breach of his duty as an officer of the court, but was a criminal offense.

(c) “My clients have been the poor; the girl with the little fingers lost; it has been the -boy who has been crippled by the railroad and!—

“The street railway company and such clients do, not come to me. I am. the lawyer of the poor. I am willing to- take a chance, and if they don’t get anything I don’t—

“No man was ever turned away from my office because he did not have money.”

What relevancy -has the above to this cause of action? It was outside the evidence, and clearly appealed to the passions and prejudices of the jury.

(d) “I was dis.barred by two men, Dick Haney and Mr. Cor-son, and just as soon as the people got a chance they retired them, and that is 'the truth.”

The opinion of this court in the cause In re Egan, 22 S. D. 355, 117 N. W. 874; which was offered in evidence in the present case, disclosed fully the facts which caused .plaintiffs disbarment. Moreover, upon the hearing of his petition for reinstatement, the record of which was likewise offered in evidence, the following appears:

“On the hearing of the petition, after making- an extended statement, the petitioner, who was sworn and examined by the presiding judge, testified as follows: ‘Q. In reading your petition, and from what you have already stated, I take it that it was your intention not only to. apologize to the court, but to retract anything that you may have sa-id that in any way reflected upon the integrity of the court? A. That was my intention at the time I filed the petition, and is my intention now. Q.‘ And in so- retracting do you do it believing at this time that such action as may have been taken by this court in any of the proceedings concerning- which you may have criticized the action of the court was done conscientiously by the court, without any .prejudice as against you, or any wrongful influence from the outside, or wrong motive on the part of the court? A. I 'had that in my heart and mind, and have it now, to retract in that sense. Q. And you do believe, do you, at the present time, 'that this court has acted conscientiously, from proper motives, in all tih:at it may have done, whether in or against your interests, in any of these proceedings? A. I believed when I filed my petition, and believe now, that the court acted' conscientiously • and honestly on all the facts that it had before it, or could get -before it, touching my affairs, whether for me or against me.” In re Egan, 27 S. D. 16, 18, 19, 129 N. W. 365.

Surely there was no occasion tq cast aspersion upon the integrity of the eminent jurists named by him in his argument.

In the course of his argument, plaintiff turned' to the audience assembled in the courtroom and said, “I know what this audience thinks and what every self-respecting man thinks,” and then, turning to -the jury, said, “And I know what you think; that I should 'have taken a club and struck him down” (referring to defendant C. L. Dotson).

[19] Further in his closing argument to- the jury plaintiff’s assistant counsel told the jury that plaintiff 'had taken the depositions of two Catholic priests to be offered in evidence on behalf of plaintiff; that defendants had appeared and cross-examined the witnesses, and had then procured an order -suppressing the depositions because the notice of taking the same had not been served in time. Th-ia was outside the record and was reprehensible and prejudicial.

[20] In an early Wisconsin case Chief Justice Ryan, in Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582, most felicitously stated the law as to the true field of argument to the jury. We quote therefrom with approval the following:

“The profession of the law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to> establish the truth and apply the law to it. It is essential to the proper administration of justice, frail and uncertain at the best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but a method, and a -mighty one, to ascertain the truth and the law governing the truth. It is the duty of counsel to make the mio-st of the case which his client is able to give him; b.u-t counsel is out -of his duty and his right, and outside of the (principle and object of his profession, when he travels out of his 'client’s case and assumes to supply its deficiencies. Therefore it is that the nice sense of the profession regards with such distrust and aversion ¡the testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client; but he is outside of .his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at (the bar than on the bench. But an advocate may malee himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s -prejudices against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against his adversary dehors, the very case he has to try. The very fullest freedom of speech within the duty of his profession should he accorded to counsel; hut it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to* prejudices irrelevant to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed 'by those upon whom the law imposes it. It is -the duty of the circuit courts in jury trials .to interfere in all proper cases of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, .exception may he taken by the other sidle, which may be good ground for a new trial or for a reversal in this court.”

[21] Lastly we come to the question of newly discovered ■evidence as a ground for a new trial. Mrs. Wilson in her deposition had given evidence tending to show that plaintiff bad made a criminal assault upon, her in his office at -Logan, Iowa. It appeared from, her deposition that she was engaged' as a traveling solicitor for a childrens’ home society, and that she resided at different times at Atlantic, Des Moines, and Ft. Madison, Iowa, and at La Crosse, Wis. At the very conclusion of this trial plaintiff testified that he had written to H. M. Duval, Atlantic, Iowa, H. M. Boorman, Atlantic, Iowa, Younker Bros., Des Moines, Iowa, J. R. Fraley, Ft. Madison, Iowa, and John F. Doherty, La Crosse, Wis., to* find out something about Mrs. Wilson and to ascertain her reputation, and that he had received no replies to such letters. Upon the witness stand he testified that there was no such person as Mrs. Wilson; -that she was’ “what is known among detective circles as a dummy.” In his closing argument he said:

“Where is Mrs. M. E. Wilson? If she lives in Omaha, a .telegram' would have brought her here. Why didn’t they bring her here so you could see her? I to;ld 'him,,,[referring to counsel for defendant] from the witness stand that that.witness [.referring ■to Mrs. M. E. Wilson] was a dummy, and I know it 'as ’well as I can know anything. Why didn’t they bring her here. They could have sent a telegram to Omaha, if 'she lived there, and got her here this morning. If there was any Mrs. M. E. Wilson these letters would' have gotten a response.”

It 'appeared that information of this transaction with Mrs. Wilson was in the possession of the defendant editor at the time of these publication's', and was one of the matters defendants 'relied upon in making them. Upon the motion for a new trial it appeared that H. M. Duval had received such letter from plaintiff and had 'answered it by asking toe purpose of toe inquiry, and that he had received no reply from plaintiff; -that H. M. •Boorman had received such letter from plaintiff, and- had promptly answered it, stating that Mrs. Wilson was a lady of good! character and bore a good' -reputation; that J. R. Erailey, of Et. Madison, Iowa, and John E. Dougherty, of La Crosse, Wis., had received no such letters, from plaintiff. We are convinced that the trial court should have granted a new trial upon this showing of -newly discovered! evidence, if for no other reason. If the affidavits o-f these parties were true, the plaintiff committed perjury in relation to -one of toe most important matters within toe scope of the defense.

The judgment and order -denying a new trial are reversed, and the -cause is rem-anded for a new trial.