Latest Important Cases reading the articles in question. He testified, after objection and exception, that when he read the January article he was much dis tressed because of the effect it would have upon his family, friends, business acquaint ances and his social and financial standing. He was then asked, 'How did you feel after you read the article that was published in the April magazine?' The answer was, 'I felt worse.' It is well settled that in an action of libel the jury may in awarding damages con sider the mental suffering of the plaintiff attributable to the libelous article. It is quite true that in, perhaps, the majority of cases the question is presented to the jury as a deduction from established facts. In the case at bar, with all the facts relating to the plaintiff's domestic, social and business rela tions established, argument as to effect of the false charges upon his mind might, it would seem, have been presented as effectively without the testimony complained of as with it. Before coming to the question of dam ages the jury necessarily had to reach the conclusion that the defendant had falsely accused the plaintiff of being a criminal, and the conclusion that he had suffered great mental anguish from such a charge would naturally follow. ^But what may be con sidered by the jury may be proved, and where the question relates to the mental suffering of the plaintiff no witness can speak ex cathedra but the plaintiff himself. "Regarding the April article, which was introduced by the defendant as a retraction of the January charges and to show that the January article was not written maliciously, we see no reason why the plaintiff was pre cluded from showing that it did not have the effect upon his mental condition which the defendant thinks it should have had. "To illustrate: Assume that in an action for malpractice the defendant admits that the initial treatment prescribed by h.m was im proper, but that at a later date, by giving the proper remedy, he effected a complete cure. It will probably not be contended that the plaintiff in such an action is precluded from showing that his health was worse after the alleged cure than it was before; in other words, that the wound was not healed." Elections. Voting "by Ballot" Cannot In clude Use of Voting Machines. O. The Ohio constitution provides that all elections shall be by ballot. In State v. Board of Deputy State Supervisors of Elections,
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89 N. E. Rep. 33, the purchase and use of voting machines was objected to on the ground that it transgressed this provision. Cardboard ballots are attached to the machine; they do not pass into the custody of any vote or by the act of voting into the control of the officers of the election. The Ohio Supreme Court said that to speak of such cardboard as the ballot of the constitution is obviously paying but mock deference to that instru ment. However consistently with the inten tion of the designer the machine may operate and however simple its manipulation may be to those who have become familiar with it, it is in contemplation that it shall be used by the body of the electors, most of whom have no knowledge whatever of its operation, and that from the necessities of the use but little time can be allowed to acquire such knowl edge and understanding, one minute being the time allowed by the statute to each elector for that purpose. The Court declared the use of this voting machine unconstitutional. Evidence. See Appeals, Defamation. Indictment. "Willful Misapplication" With out Conversion—General Allegation of Wrong ful Intent Will Cure Defect of Indictment Which Does not Set Forth Case of Conver sion. U. S.* Judge Hough of the United States Circuit Court dismissed fifteen of the sixteen counts of the indictment charging F. Augustus Heinze and others with conspiracy, in a memorandum filed in New York City Sept. 11. The Court said :— "This indictment seems to me to charge in counts one to fifteen this and no more, viz. : That with intent to defraud the bank of which he was president, and for the benefit of others unnamed, defendant caused the bank to dis count single named commercial paper, and the bank lost the amount paid on the dis count. The sixteenth count varies from the others only in stating that the person respon sible for the discounted note was insolvent to the knowledge of the defendant at the time of discount. "The crime of which the defendant is guilty, if guilty at all, is willful misapplication. The one characteristic or essential of this crime on which the Supreme Court has always in sisted is conversion. No method of being guilty without converting the funds, money, or credits of the bank has been pointed out. The word conversion has supplied the legal
