metal contained in these bars, and its value, Wooding was induced to purchase from the appellant said bars of metal, paying him therefor the sum of $5,000 in cash. There was proof tending to show that the so-called "assayer" was the fraudulent Indian "Ora," and the bars of metal proved to be pure copper. In his brief the learned counsel for appellant has assailed the information in many particulars, but the only objections relied on in argument, or that need be noticed, are (1) "that it does not describe the money with sufficient accuracy;" (2) "that it does not allege the ownership of the money;" and (3) that it "fails to charge that the defendant obtained the money."

As to the first objection, the statute (section 234, Pen. Code), makes it an offense to "designedly * * by any false pretense obtain from any person any money." The "money" which the information charges that the defendant obtained is described as being "five thousand dollars in money, of the value of five thousand dollars in lawful money." We think the tendency of the more modern decisions is to dispense with the rule requiring the kind, character, or denomination of the money obtained to be set out, and that this best accords with the spirit and intent of our Code of Criminal Procedure. State v. Hurst, 11 W. Va. 54; Com. v. Lincoln, 11 Allen, 233; Oliver v. State, 37 Ala. 134; Com. v. Stebbins, 8 Gray, 492.

Nor do we think that the second objection above noticed is well taken. We are not unmindful of the fact that there are many cases which hold that the indictment for this offense must allege the ownership of the property with the same directness and certainty that are required in larceny. These decisions are entitled to very great respect, but are not conclusive upon us in determining this question for the first time in this state. There is a marked difference in the language of the statute defining this offense and that defining larceny. The authorities are hopelessly conflicting as to what averments are sufficient in an indictment or information for obtaining money by false pretenses. As regards this objection, however, the information follows the statute, and for the purposes of the charge we think it sufficiently appears from the information, considered as a whole, that the money was the property of Wooding.

It is further contended that the information is insufficient because it fails to charge that the defendant "obtained" the money, etc. In support of this contention appellant cites the cases of Kennedy v. State, 34 Ohio St. 310, and State v. Lewis, 26 Kan. 123. In each of these cases the conclusion was reached by a divided court. Here the alle gation is that Wooding, “relying upon said pretenses and representations

*

* **

and

believing the same to be true, and being induced thereby, and not otherwise, and being deceived thereby, did buy said bars of metal

[from said defendant], and did then and there pay [to the said defendant] five thousand dollars," etc., and we think this is equivalent to an allegation that the defendant then and there "obtained" said sum of $5,000 State v. Neimeier (Iowa) 24 N. W. 247. This court has frequently held that it is not necessary to use in an information the precise words of the statute, provided words conveying the same meaning and import are employed; and indeed the statute expressly so provides. Section 1243. This information is informally and loosely drawn. Ordinary care in its preparation, and a decent regard for precedent that ought not to be ruthlessly overthrown, would have relieved this court of much perplexity and labor. But we think that it is sufficient "to enable a person of common understanding to know what is intended," and that is all the statute requires. State v. Womack, 4 Wash. 19, 29 Pac. 939.

Counsel for appellant very earnestly and with much ability urges that the evidence is insufficient to justify the verdict. There are numerous definitions given by law writers of indictable false pretenses, and there seem to be many nice and rather "shadowy distinctions, the sound reasoning and good sense of which" are not easily discoverable. We think that given by Mr. Bishop in his work on Criminal Law (volume 2, § 415) is as satisfactory as any that is to be found: "A false pretense is such a fraudulent representation of an existing or past fact by one who knows it not to be true as is adapted to induce the person to whom it is made to part with something of value." Counsel contends that a pretense, though false, and made for the purpose of defrauding, which would not have misled the person to whom made, had he exercised "ordinary prudence and caution," is not sufficient, and cites many authorities in support of the proposition. We think, however, that the better rule permits the jury to consider, from the facts and circumstances of a given case, what was the effect of the false representations upon the mind of the person defrauded, and what was the result. Did he rely upon the false pretenses, and was he defrauded thereby? "Whether the prosecutor had the means of detection at hand,' or whether the pretenses were of such a character as to impose upon him,' are questions of fact, to be left to the jury, as they must necessarily vary with the particular case. ** * The statute assumes some defect in caution, for, if there were perfect caution, no false pretenses could take effect." Whart. Cr. Law (9th Ed.) § 1188. The pretense "need not be such an artificial device as will impose on a man of ordinary caution, * * and need not be calculated to deceive a person of ordinary prudence and caution. ** * It is impossible to estimate a false pretense otherwise than by its effect. * * * A court cannot, with due regard to the facts of human life, direct a jury to weigh a pretense, an argument, an inducement to

action, in any other scale than that of its effect." 2 Bish. Cr. Law (8th Ed.) § 436. "If the false pretenses were made with the design of deceiving, and thereby obtaining credit or property, and have that effect, the guilty party cannot escape on the ground of the weak credulity of his victim." State v. Fooks (Iowa) 21 N. W. 561.

Appellant contends that Wooding did not rely upon the representations of defendant as to the character and quality of the metal, but that he submitted them to be assayed, and relied principally on the report; and he argues that where a party undertakes to investigate for himself he is bound by the result of such investigation. We think it is quite well settled that the false representations need not be the only moving cause which induces another to part with his property. Donohoo v. State (Ark.) 27 S. W. 226; Woodbury v. State, 69 Ala. 242; State v. Fooks, supra; People v. Haynes, 14 Wend. 547; In re Snyder, 17 Kan. 542; Smith v. State, 55 Miss. 513; People v. Oyer & Terminer Co. Ct., 83 N. Y. 436. Other considerations may mingle with the false pretense, having an influence upon the mind and conduct of the prosecutor; yet if, in the absence of the false pretense, he would not have parted with his property, the crime is complete. On the other hand, if, without the false pretense, he would have parted with his property, if the false pretense is not an operative moving cause of the transfer, if he did not rely and act upon it, there may be falsehood, but there is not crime. Woodbury v. State, supra; Whart. Cr. Ev. § 131. The information alleges that the bars of metal are of no value. The proof shows that there was no merchantable gold in the bars, but that they contained copper worth about $120. The variance is immaterial. It is enough that they were wholly different in kind, quality, and value from what was bargained for. The statement that the bars "were of pure gold, and of the value of at least $20 per ounce," was something more than "loose talk," ́or mere extravagant praise. It was the statement of a specific fact, professedly within the knowledge of the appellant, and not simply mere matter of opinion. There was legal evidence tending to prove every essential element of the offense, and its sufficiency became a question for the jury, under proper directions from the court. The charge of the court was able and comprehensive, and was as favorable to the appellant as the law warranted. The jury having passed upon the evidence adversely to the appellant, the learned and experienced trial judge, who saw the witnesses upon the stand, and heard their testimony, has, upon a motion for new trial, held the evidence sufficient, and the judgment appealed from is affirmed.

HOYT, C. J., and ANDERS and SCOTT, JJ., concur.

guilty of a crime.

2. Under Code Proc. § 212,-which provides that defendant may allege both the truth of the matter charged, and any mitigating circumstances, and that, whether he prove the justification or not, he may give in evidence the mitigating circumstances,-the truth of a publication libelous on its face is available as a complete defense, whether pleaded in justification, or in mitigation of damages.

3. Where, in an action for libel, the court defines the legal meaning of the term, and leaves to the jury the question whether the publication complained of was libelous, the finding of the jury thereon will not be disturbed.

4. Where the jury are properly instructed as to the rules by which they are to determine the meaning of the publication alleged as defamatory, and are told that, if the article was a libel, plaintiff is entitled to damages, without regard to defendant's motive, a verdict for defendant negatives the libelous character of the publication; and the judgment will not be reversed, though the court erred in other parts of the charge.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by John H. Haynes against the Spokane Chronicle Publishing Company to recover damages for libel. From a judgAfment for defendant, plaintiff appeals. firmed.

Richardson & Gallagher and Fenton & Henley, for appellant. Blake & Post, for respondent.

ANDERS, J. This is an action to recover damages for an alleged libel published by the respondent corporation in the Spokane Daily Chronicle,-a newspaper of which it was the publisher and proprietor. The complaint is in the usual form, and sets forth in full the publication alleged to be libelous, and which, it is asserted, was printed and published of and concerning the plaintiff, and which reads as follows: "Found His Bones. Peaceful Valley People are Anxious to Know if Old Mr. Murphy was Murdered. Said to have been a Crime. Police are not Certain Who was Killed, or Who is Guilty, but are Investigating. Peaceful Valley is not peaceful to-day. The quiet little settlement on the south bank of the river, west of Monroe street, is bubbling over with suppressed excitement, and rumors of murder and mystery. The coroner, policeman, and detectives have entered Peaceful Valley, and the people can discuss nothing but skulls and bones and shallow graves, through which the clear spring water is slowly seeping to supply the settlement under the hill. The

police say there is a mystery, and perhaps a murder, to be investigated, and they began their work in earnest to-day. The people of Peaceful Valley are satisfied that a foul murder has just been brought to light, after years of careful concealment. The skull and bones that call for an account were found last Saturday on the steep hillside near the foot of Oak street. Franz Pietsch, a German, who has a fine garden at the foot of the hill, wanted to increase his supply of spring water. The hillside is full of springs, and the West Riverside Land Company readily gave him permission to run a drain across their land, and bring water from it to his garden. Friday afternoon he began work with his son Max, and Mike Sullivan. They had hardly started digging, when John Haynes, whose whitewashed cabin stands on the next lot, ordered them to go away. They told him they were not on his land, or cutting off his water supply. He insisted that they were cutting off the water from his land. Finally, it is claimed, his wife came out, and commenced piling brush in the ditch they were digging. As it was nearly 5 o'clock, and as Mrs. Haynes is at this time in a delicate condition, they deIcided not to resist her, and went home. Mr. Pietsch notified the authorities, but they thought the case did not warrant interference. Saturday morning the men returned, cleared out the brush, and resumed work. They had a trench twenty feet long and from two to three feet deep, when Haines reappeared. Once more he ordered them to stop work, and when they refused he went back to the house, and led Mrs. Haines back to the ditch. Mike Sullivan was working in one end of the ditch, and had just reached the edge of a round pit, two feet across and twenty inches deep, which was in the line of the ditch. Mrs. Haines jumped into that end of the ditch, and when he thrust the shovel into the ground she stepped on it. He tried to raise the shovel, but Mrs. Haines weighs about 200 pounds; so he gave it up, and tried another place. Again she stepped upon the shovel. For several minutes this game went on. Finally the other men noticed that she devoted all her attention to Sullivan, and began joking about it. Haines heard them, and called her back to the house, himself starting to town to get an officer. Sullivan kept digging, and in a few minutes his shovel struck something hard. with another minute's work, he threw out a human skull. It was lying about two feet under ground, but only a foot distant from the bottom of the shallow hole previously described. Following the trace, they found the jaw bone, then the vertebrae and ribs, but neither arm nor leg bones. The body seemed to slant downward, and lay as if the shallow hole had been dug first, and from it a tunnel had been driven, slanting downward, just large enough so the dead man's body could be thrust into it easily.

The bones were put in a bucket, and carried to Mr. Pietsch's house, where they were examined by all the neighbors. Death-onTrail unhesitatingly pronounced it a white man's skull, which may have been buried four or five years ago. Other old settlers are of the same opinion, and say the low check bones and broad, well-formed skull, belonged to a Caucasian. 'Has any white man disappeared in this neighborhood?' inquired Officer Davenport, who was sent this morning to investigate the case. "There was an old bachelor named Murphy,' said Mr. Pietsch, to whom the question was addressed. 'He used to have a garden on this hillside, and Haines worked for him five or six years ago. Haines has told me that he afterwards bought the garden from the old man, who went back to Canada; but there are rumors that the old man never reached Canada, and letters came from there inquiring about him.' 'What did Haines say when you showed him the skull?' 'Well,' said the old man, hesitating, 'ne looked awful queer and angry. I can't tell how he did look.' 'He didn't say anything,' said Mike Sullivan, who was asked the same question. 'He would hardly look at the bones at all.' Mr. Haines was not at home, so his version of the story could not be obtained. The neighbors are divided in their opinion. Some think it was the body of some Indian who died of fever and sweathouse treatment. Others believe it to be the body of Murphy, and demand investigation. In any case, those who drink spring water are not sorry to have it taken out of the hillside. Coroner Newman visited the spot this afternoon, in company with Officer Sheahan, and examined the remains carefully. He was unable to decide with certainty whether the bones are those of a white man or of a squaw, but decided not to hold an inquest. Judging from the skull, he believes it belonged to a middle-aged or elderly person, and has been in the ground five or six years. The officers will continue the investigation." The complaint further alleges: "That said defendant, in said article so published, falsely, unlawfully, and maliciously intended to and did accuse and charge this plaintiff with the crime of murder, and with an attempt to conceal the crime of murder, and thereby meant and intended to have it understood, and it was so understood, by the readers of said article so published in said paper, that the plaintiff was guilty of the crime of murder, and had murdered a human being, and was attempting to conceal such murder; and defendant did, further, by said publication of said article, bring this plaintiff into public contempt, hatred, ridicule, and scorn, and thereby deprived plaintiff of the benefit of the public confidence and social intercourse and esteem; and plaintiff has, by reason of said publication of said article, ever since been, now is, and will continue to be, the object of public scorn and execration; and the publication of said article has great

ly injured plaintiff's good character and reputation, and has caused, and will continue to cause, this plaintiff great mental pain and suffering, all to his damage in the sum of twenty thousand ($20,000) dollars." The defendant, in its answer, admitted the publication, but denied the meaning ascribed to it in the complaint, and averred, affirmatively, in mitigation of damages, that the article was published as a legitimate item of news, without malice, or any intention on the part of the defendant to injure or damage the plaintiff or his reputation, and that each and every statement of fact, matter, and thing contained and set forth in said article was absolutely true. From a judgment upon the verdict of the jury in favor of the defendant, the plaintiff appeals to this court.

It will be seen by an inspection of the alleged libelous publication that the appellant | was not therein or thereby directly charged with the commission of the crime of murder, or with the intention of concealing such crime. But a direct and specific charge of crime is not necessary, in order to render a publication libelous. It is sufficient if the language used, in its ordinary acceptation, falsely and maliciously tends to produce such an effect on the mind of the reader. Bradley v. Cramer (Wis.) 18 N. W. 268; Solverson v. Peterson (Wis.) 25 N. W. 14, note 1. In the publication now under consideration, the only allusions to the appellant are those in which he is stated to have done or said certain things; and from these statements he draws his conclusion that the respondent feloniously and maliciously intended to, and did, accuse him of the crime of murder, and with an intent to conceal the crime of murder, and thereby meant and intended to have it so understood, and that it was so understood, by the readers of the article so published in said paper. And it is strenuously insisted, on behalf of the appellant, that the article in question is susceptible of the construction placed upon it by the appellant, that it is libelous per se, and that the court erred in admitting testimony to prove the affirmative matters set up in the answer. Assuming that the publication is libelous, and therefore injurious to him, the appellant claims that he is entitled to recover the actual damage occasioned thereby, and that the evidence introduced over his objection was incompetent, irrelevant, and immaterial, and should have been excluded by the court. The argument in support of this proposition is that, inasmuch as this court has heretofore declared that punitive damages are not recoverable in this state, in actions for tort, unless provided for by statute, it necessarily follows that neither good faith, absence of malice, nor any other circumstance, can be shown to reduce or mitigate the damages caused by a libelous publication. Several authorities are cited which seem to sustain appellant's position, and his contention would be entitled to careful consideration, if it were necessary to the decision

of this case. The fundamental question on the trial of every action for libel is whether the publication complained of is in fact libelous, and, if it is not, then all other questions which might otherwise arise become unimportant. A publication which appears libelous upon its face may not be so in fact, by reason of something which is not apparent from the words themselves, and which may be shown by pleading and proving extrinsic facts. Conceding, but not deciding, that this publication is prima facie libelous, and therefore injurious to the reputation of appellant, the question arises, has this import of the publication been changed by the pleading and proofs? In our opinion, it has. Our statute 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 circumstance to reduce the amount of damages, and, whether he prove the justification or not, he may give in evidence the mitigating circumstances. Code Proc. § 212. And it was held, under a similar statute, in Fink v. Justh, 14 Abb. Pr. (N. S.) 107, and in Kelly v. Taintor, 48 How. Pr. 270, that the same matter may be pleaded both in justification and in mitigation of damages; and the same matters were so pleaded in the well-considered case of Eviston v. Cramer, 54 Wis. 220, 11 N. W. 556. And, that being so, it follows that the truth, however pleaded, is available as a defense in any case. The statute says any mitigating circumstance may be alleged in the answer, and we can conceive of no circumstance more potent than the truth of the alleged defamatory matter. If the language complained of in this case imputed the crime alleged in the complaint, or any crime or moral obliquity whatever, to the appellant, it was not, as we have said, because of any direct assertion to that effect, but because of the inferences that might possibly be drawn from the facts stated. And, if what was stated concerning appellant's actions and conduct was true, did the statement of the truth render the publication libelous, simply because the truth so stated was liable to suggest damaging inferences concerning him? We think not. From what we have sail, it will appear that, in our opinion, the respondent's allegation of the existence of the facts contained in the alleged libelous article was eminently proper. And, it appearing from the bill of exceptions that the allegations of the answer were supported by the proof, it necessarily follows that the appellant was not entitled to damages, and that the verdict and judgment were right.

If it be suggested that this view of the effect of the defense interposed by the respondent gives equal weight to matters alleged in justification and those alleged in mitigation merely, our answer is that the effect of the defense is to be determined by its averments, rather than by what the pleader may allege the object of the defense to be. Kelly v. Waterbury, 87 N. Y. 179. Of course, if the

matters pleaded simply tend to rebut malice, or to show a reasonable belief of the truth of the publication, they can have no other or further effect; but, where the truth is alleged, it must be given its legitimate effect as truth. Probably the same matters here alleged by way of mitigation would also have been pleaded in justification, but for the fact that the defendant denied that the publication complained of would bear the construction sought to be placed upon it by plaintiff.

The question of “libel or no libel" was one which the defendant had a right to have submitted to the jury, and, in our judgment, it was properly submitted. The learned judge below correctly defined what is a libel, in contemplation of law, and left it to the jury to say whether the publication in question fell within the definition; and the rule ir such cases is that, whichever way the jury finds, the court will not disturb the verdict. 13 Am. & Eng. Enc. Law, pp. 381, 382.

The jury were properly instructed as to the rules of construction by which they were to determine the meaning of the publication, and were told, in effect, that if the article was a libel on the plaintiff he was entitled to damages, and that the motive of the defendant in publishing it was immaterial. The verdict of the jury necessarily negatives the libelous character of the publication, and, under these circumstances, we would not be justified in reversing the judgment, even conceding that the court erred, as claimed by appellant, in charging the jury concerning the questions of . malice and damages.

We purposely refrain from discussing several questions raised in the brief of counsel for appellant, for the reason that what we have already said disposes of the case. We perceive no prejudicial error in the record, and the judgment is therefore affirmed.

CONTRACT FOR STATE CAPITOL.

Laws 1893, p. 466, providing for the erection of a state capitol, by section 7 prescribed that the bid of the lowest bidder should be accepted, but that the commissioners might reject all bids. On the first call for bids, the lowest bidder refused to comply with his bid, and the commissioners rejected all bids, and issued a second call. Held, that the second lowest bidder under the first call could not enjoin the making of a contract to the lowest bidder under the second call.

Appeal from superior court, Thurston county; M. J. Gordon, Judge.

Action by Fenton H. Gross against the State Capitol Commission and others to restrain the board of commissioners from entering into a contract for the erection of

the foundation and basement of the new state capitol. From a judgment for defendants denying the relief prayed for, plaintiff appeals. Affirmed.

Parsons, Corell & Parsons, for appellant. James A. Haight, for respondents.

SCOTT, J. This is an action brought to restrain the board of state capitol commissioners from entering into a contract with Moffatt Bros. for the erection of the foundation and basement of the new state capitol. On September 12, 1894, said board issued a call for bids for said work, according to plans and specifications then on file in its office. The call was duly advertised for 30 days, and, according to its provisions, the bids received were opened October 15, 1894. Twenty-two bids were received. One, by Lillis & Tucker, was several thousand dollars lower than any of the others, and they were found by the board to be the lowest responsible bidders, and their bid was accepted accordingly. On the 27th day of said month, said Lillis & Tucker notified the board of their refusal to enter into a contract in conformity with their bid, and to execute the contractor's bond required of them, and thereupon the board rejected all bids, and made a new call for bids, which call contained the following provision, not contained in the first call: "Blank forms of the contract and bond which the successful bidder will be required to enter into are on file, with the plans and specifications, at the office of the architect, which contract and bond the successful bidder will be required to execute at once upon the acceptance of his bid by the commission." The bond contained a provision for the protection of mechanics and material men, as is required by section 2415, Gen. St. The specifications were also amended so as to include storm sheds to cover the structure, and secure certain minor changes in the work. A number of bids were received under the second call on November 8th, the day specified therein. Said Moffatt Bros. were the lowest bidders at this time, and were adjudged to be the lowest responsible bidders. This action was brought before the award under the second call was made. An application for a restraining order pending the action based on the complaint was denied. On the same day (November 12, 1894), the award was made to Moffatt Bros., who forthwith executed the contract referred to in the call. A demurrer was interposed to the complaint, which was sustained by the court, and judg ment rendered thereon against plaintiff. This appeal was prosecuted therefrom.

Section 7 of the act authorizing the work contains the following provision: "The bid of the lowest responsible bidder shall be accepted, saving that the board shall have the right to reject all bids." Laws 1893, p. 466. A bid which was several thousand dollars