— The plaintiff brought his action against defendant- charging in four counts that the latter had slandered him. The third and fourth were dismissed by the court and a verdict for plaintiff was had on the first and second, the finding being for both compensatory and exemplary damages on each count, aggregating two thousand dollars. Defendant appealed.
1. The first count states the slander as that plaintiff used this language: “Yes, I did accuse Joe Grimes of stealing my corn, and he did steal it, and by God I can prove it.”
The second count sets out that while plaintiff was residing on defendant’s farm as his tenant, he spoke of plaintiff to one Charles W. Stevenson, the following false and slanderous words, to-wit: “I know I never got all my rent corn off of the ground that Joe Grimes had rented; the corn that Joe Grimes sold to Teidgen was my com, and I am satisfied that Grimes stole my corn.”
The words charged in the first count are conceded to be slanderous per se. But it is said that those in the second count- are not slanderous, but that they carry along with them a meaning which shows that they could not be. [Trimble v. Foster, 87 Mo. 49.] The point, made is that plaintiff was defendant’s tenant on the shares and that plaintiff being in possession of the corn, undivided between-landlord and tenant, could not be'guilty -of larceny. That, however, does not appear from the language used. The utterance does not show the corn was not the specific property of defendant. The language used does not disclose that a larceny could not have been committed. The mere fact that it was “rent corn” does not show it.
2. The petition asked for exemplary damages and there was evidence offered and admitted in behalf of plaintiff to sustain damages of that nature, and so the jury awarded such damages. But there was likewise evidence in plaintiff’s behalf showing mitigating circumstances on the question of such damages. In such state *657of case the court gave for plaintiff instructions three and five, the former as to the first and the latter as to the second count, in which the jury were told that, “in making their verdict” they might take into consideration the facts and circumstances admitted in evidence as produced by both parties. A part of the evidence admitted was only competent on account of the claim for exemplary damages and not for the purpose of proving the truth of the slanderous charge, or actual damages. By those- instructions the jury were authorized to consider evidence on the charge of uttering the words and of the amount of compensatory damages, which was not applicable thereto, but only applicable to exemplary damages.
The instructions should not ignore matters of mitigation (Callahan v. Ingram, 122 Mo. 855, 863, 373) when exemplary damages are asked and mitigating circumstances appear to rebut or lessen malice. In the case just cited and that of Jones v. Murray, 167 Mo. 47, it was held that while evidence of intention and motive was admissible on the question of malice and exemplary damages, yet the jury should be cautioned that such evidence should not be considered as a defense to the utterance of the words, nor to reduce compensatory damages. So it is made clear that these two elements — guilt in uttering the false words with the consequent compensatory damages,- and exemplary damages may become distinct matters-, and they should not be confounded and confused in instructions as in this case, the result being that the jury may have allowed evidence applicable to one to have had an influence in determining the other, to which such evidence did not apply.
3. Error was committed in giving an instruction at the instance of the plaintiff, that “the jury are themselves the judges of the law of slander as. well as of the facts, and they are not required to accept the instructions given by the court as being conclusive of what the *658law of slander is.” In libel cases (whether civil or criminal). the jury under the direction of the court determines the law and the fact. Sands v. Marquardt, 113 Mo. App. 490. That is to say, the court may instruct the jury as to the law of libel in an advisory, but not mandatory, way. The jury cannot be directed peremptorily to find a verdict of guilty in a criminal prosecution for libel nor for plaintiff in a. civil suit if they believe certain facts, for they are the judges of the law as well as the fact. This is the effect of the law as stated by Judge Johnson in the Sands case, and is undoubtedly the view of the Supreme Court, as is shown in the cases of State v. Armstrong, 106 Mo. 395, and Heller v. Pulitzer Pub. Co., 158 Mo. 205. In criminal prosecutions for either libel or slander, the jury determine the law and fact. [R. S. 1899, sec. 2262.]
4. But in civil actions for slander no such innovation on the ordinary mode of Mai by jury prevails. [Heller v. Pulitzer Pub. Co., supra.] It was therefore error in the trial court to instruct the jury that they were the judges of the law and that they were not bound by the instructions of the court. Such high and exceptional function does not rest with such body in civil actions for slander.
5. As the right and power lodged with a jury to determine the law of libel was called into being in the interest of defendant, and as a restraint upon the authority of judges to direct verdicts of guilty upon the belief of certain facts, it is argued by plaintiff that since the instruction here was given at the instance of the plaintiff, it had the effect of helping instead of harming defendant, in that it gave the jury the privilege of finding for him even though they could not have done so but for that instruction. We may concede that; but the fact remains that the instruction likewise gave the jury the authority to disregard the instructions in defendant’s behalf, and themselves determine, in the face of such instructions that he was guilty of slander and *659mulct him in damages therefor. So we hold such instruction in civil actions for slander to he erroneous whether given at the instance of the plaintiff or defendant.
The judgment will he reversed and the cause remanded.
All concur.