Henn v. Horn. the jury in coming to a conclusion upon some matter about which the jury are to decide; that evidence which does not have a legal tendency to assist the jury in deciding some of the questions submitted to them is, in a legal sense, irrelevant and incompetent; hence, that evidence, to be admissible, must have a legal tendency to inform the jury either as to the right, or want of right to recover, or as to the amount of damages. This may seem elementary, and yet it seems to us that the circuit court must have entirely overlooked the purpose of evidence. Black L. Dict., 441; Hotchkiss v. Newton, 10 Ga., 567; 1 Greenl. Ev., sections 1, 2; Wills Circumst. Ev., 2; 1 Bouv. L. Dict., 544; 1 Whart. Ev., Sec. 3; Stephens Dig. of Law of Ev., Secs. 1, 2; 1 Sutherland on Dam., Sec. 392, 393, 394, 365, 366, 368; Borland v. Barrett, 76 Va., 128; Drohn v. Brewer, 77 Ill., 280; Benson v. Frederick, 3 Burr, 1845; McBride v. McLaughlin, 5 Watts, 375; Sawyer v. Sauer, 10 Kan., 466; Welch v. Durand, 36 Conn.,. 182; Emblem v. Myers, 6 H. & N., 54; B. & Y. Turnpike v. Boon, 45 Md., 344; Milwaukee, etc. R. R. Co. v. Arms et al., 91.U S., 489; Wilkinson v. Drew, 45 Me., 360; R. R. Co. v. Patton, 31 Mass., 156; M. & C. R. R. Co. v. Whitfield, 44 Miss., 466; Raynor v. Nimms, 37 Mich., 34; Peckham Iron Co. v. Harper, 41 Ohio St., 100; Brown v. Evans, 17 Fed. R., 912; Pitts., etc. Ry. Co. v. Lyon, 123 Pa. St., 140; Lake Shore & M. S. Ry. Co. v. Rosenweig, 113 Pa. St., 519; Ala. St. G. N. S. Ry. Co. v. Hill, 90 Ala., 71; Barlow v. Lowder, 35 Ark., 492; Iarrison v. Ely, 120 Ill., 83; C. & N. W. Ry. Co. v. Williams, 55 Ill., 185; Bauer v. Gottmanhaus, 65 Ill., 499; Miller v. Kirby, 74 Ill., 242; Cochran v. Miller, 13 Iowa, 128; Wiley v. Keokuk, 6 Kan., 94; Henn v. Horn. Boetcher v. Staples, 27 Minn., 308; Louisville & N. R. R. Co. v. Ballard, 85 Ky. 307; Fleet v. Hollenkemp, 13 B. Mon., 219; Kennedy v. North Mo. Ry. Co., 36 Mo., 351; Green v. Craig, 47 Mo., 90; Storm v. Green, 51 Miss., 103; Holmes v. Carolina Central Ry. Co., 94 N. C., 318; Knowles v. Railroad, 102 N. C., 59; Day v. Holland, 15 Oreg., 464; Sloan v. Edwards, 61 Md., 89; Taylor v. Railway, 48 N. H., 304; Champion v. Vincent, 20 Tex., 811. We pass, now, to the direct question relative to the rule in actions for libel. In this special action, courts and text writers have sometimes been led astray by the use of the words, "malice in law and malice in fact," or, "implied malice and express malice," as if that meant two distinct things. Very much the better opinion is that these two things are precisely the same, the only difference being in the manner in which the ultimate fact is proved, which the law denominates, for the purpose of the action, malice. If a man intentionally charges another with having committed a felony, and does this without having any reasonable grounds to believe the charge true, then, even if there is no personal malevolence, there is yet either wantonness, recklessness, oppression, or a negligence which indicates a heart regardless of social duty, and regardless of the rights of others. This, for all purposes, civil or criminal, is equivaient to malevolence, and, in the terminology of the action of libel, is as much malice, is as much express malice, is as much malice in fact, as is personal malevolence. Townshend on Slander (pages 130 to 143). Lewis v. Chapman, 16 N. Y., 369; Folkard Starkey on Slander, Sec. 581; Moore v. Stephenson, 27 Conn.; Wynne v. Parsons, 57 Conn., 73; Osborne v. Troup, 60 Conn., 485; Gott Henn v. Horn. v. Pulsifer, 122 Mass., 235; Cotulla v. Kerr, 74 Tex., 89; Blocker v. Schoff, 83 Iowa, 265; Barr v. Hack, 46 Iowa, 308; Morrison v. Press Pub. Co., 38 N. Y., 357; Newell on Slander, Secs. 320, 13; 322, 18; Commercial Gazette v. Grooms, 21 W. L. B., 292; Hayner v. Vowden, 27 Ohio St., 292; Darling v. Williams, Admr., 35 Ohio St., 58; Edwards v. Publishing Co., 99 Cal., 431; Childers v. Mercury P. P. Co., 105 Cal., 284; Bergman v. Jones, 94 N. Y., 51; Holmes v. 'Jones, 121 N. Y., 461; Morey v. Morning Journal Association, 123 N. Y., 207; Warner v. Press Pub. Co., 132 N. Y., 181; Morrison v. Press Pub. Co., 38 N. Y., 358; Van Ingen v. Star, 72 N. Y., 565; Turton v. N. Y. Recorder Co., 144 N. Y. 144; Mattice v. Wilcox, 147 N. Y., 624; Webber v. Butler, 81 Hun., 244; Morning Journal Association v. Rutherford, 51 Fed. R., 513; Post Pub. Co., v. Hallam, 59 Fed. R., 530; Buckley v. Knapp, 48 Mo., 152; Lanius v. Druggist Pub. Co., 20 Mo. App., 12; Wood v. Hilbish, 23 Mo. App., 389; Baldwin v. Fries, 46 Mo. App., 288; Callahan v. Ingram, 122 Mo., 355; Regensperger v. Kiefer, 7 Atl., 724; Bowden v. Bailes, 101 N. C., 612; Hintz v. Graupner, 138 Ill., 158; The Evening News Association v. Tryon, 42 Mich., 549; Maclean v. Scripps, 52 Mich., 214; Park v. Detroit Free Press Co., 72 Mich., 560; Davis v. Marxbauson, 103 Mich., 315; General Laws of Minn., 308; Allen v. Pioneer Press Co., 40 Minn., 117; Post Pub. Co. v. Maloney, 50 Ohio St., 71; Rearick v. Wilcox, 81 Ill., 77; Sweeney v. Baker, 13 West Va., 158; Mc Williams v. Bragg, 3 Wis., 424. When it became evident that the only fact known to the defendant was that the plaintiff had altered, with a lead pencil, prior void articles of incorporation, written in ink, the court refused to permit him to testify to his belief or his motives in charg Henn v. Horn. ing that the plaintiff had committed forgery, until he should offer evidence showing that he had some information of some sort, from some one, that the plaintiff, in making these alterations, had committed forgery, had done it with a fraudulent intent, had done it with a design to have the altered articles pass off as genuine. The slightest examination made of the photograph attached to the record will show that no person could have come to the conclusion that the alterations were intended as a forgery, merely from the inspection of the altered document. Such an intent was necessary to make the alteration a forgery. 2 Bac. Abr., 256; 2 Hawk. P. C., 104; 2 Bish. Crim. L., Sec. 586, 335; 8 Am. & Eng. Enc. of Law, 453; Ex Parte Windsor, 10 Cox, C. C., 118; Queen v. Ritson, L. R., 1 C. C. Res., 169; Snyder v. State, 8 O. C. C., 463. Boynton & Horr; Charles E. Pennewell and Judd, Ritchie & Esher, for defendant in error. The competency of this class of testimony in cases of slander, libel and of malicious prosecution, has been settled by repeated adjudications and by none more clearly than by an adjudication of this court. White v. Tucker, 16 Ohio St., 468. A plaintiff, in an action for malicious prosecution, must allege and prove two things. He must prove malice and want of probable cause for the former suit or prosecution. Moak's Underhill on Torts, 164; McKnown v. Hunter, 30 N. Y., 625; Van Derveer v. Sutphin, 5 Ohio St., 299; Smetters v. Rainey, 14 Ohio St., 287; The Atlantic & Great Western R. R. Co. v. Dunn, 19 Ohio St., 170. The following cases are to the point, that, to justify the jury in awarding exemplary or punitive damages, there must have been actual or express Henn v. Horn. malice upon the part of the defendant in the publication complained of. Roberts v. Mason, 10 Ohio St., 277; Hayner v. Cowden, 27 Ohio St., 292; Templeton v. Graves, 59 Wis., 95; Drohn v. Brewer, 27 Ill., 280; Baltimore, etc., R. R. Co. v. Boon, 45 Md., 344; Sheik v. Hopson, 64 Iowa, 146; Volts v. Blackmar, 64 N. Y., 440. The following elementary authorities and decided cases are in principle in full accord with White v. Tucker, supra; Superintendent of the Poor v. The Superintendent of the Poor, 44 N. Y., 22; Fiedler v. Darrin, 50 N. Y., 443; Thurston v. Cornell, 38 N. Y., 281; Jauvrin v. Fogg, 49 N. H., 341; Delano v. Goodwin, 48 N. H., 203; Wharton on Evidence, sections 482, 508 and 955; Odger on Slander and Libel, 317; Starke on Slander and Libel, 639; Newell on Defamation, 909; Callahan v. Ingram, 26 S. W. Rep., 1020; Post Publishing Co. v. Hallam, 59 Fed. Rep., 530; Haywood v. Foster, 16 Ohio. 88. The court erred in not arresting the case from the jury when the plaintiff rested his case. Townsend on Slander and Libel, secton 134; Norton v. Ladd, 5 N. H., 203; Waggoner v. Richmond, Wright 173; Van Rensselaer v. Dole, 1 Johns. Cas., 279; 1 Ohio Dig. 759, Apples from my trees, 11 Met., 554; Newell on Def., 117; Frost v. Aeyre, 3 Bulstr., 265; Carmer v. Noonan, 4 Wis., 231; Moak's Underhill on Torts, 139; Bishop on Non-Contract Law, section 265; Holt v. Scholefield, 6 Term Rep., 691; Thompson v. Berbnard, 1 Camp., 48; Cristie v. Cowell, Peake, 4; Reed v. Ambridge, 6 Carr and P., 308; Zuckerman v. Sonnenschein, 62 Ill., 115; Wing v. Wing, 66 Me., 62; Jackson v. Weisinger, 2 B. Mon., 214; Hall v. Adkins, 59 Mo., 144; Quinn v. O'Gara, 2 E. D. Smith, 388; Edgerly v. Swain, |