could be considered only in determining the amount of damages. The charge of being a groom to a "war bride" for the purposes of a "slacker" is to say that he designedly prostituted the most sacred relation known to man; that failing in the true object of his matrimonial venture, he sought and secured a sinecure in a noncombat arm of the service. The reader is forced to conclude that plaintiff is not only without chivalry toward women, but a panicky, fear-stricken, skulking, unprincipled coward, devoid of honor and principle and without feeling or courage for his country's sake. Finally it is charged that, having escaped with his contemptible body and soul, he is an arch hypocrite, a posing sunshine patriot, and is using the honor and privilege of being the head of the ex-service men's patriotic organization for mercenary purposes. Such being the thought conveyed to us by the article, we say the same tended to lower the plaintiff in the estimation of all honorable men and women. This court, in the case of Bratcher v. Gernert, 77 Okla. 12, 185 Pac. 1081, held a publication to be libelous that accused one of trying to interfere and prevent the success of a county fair, couched in such terms as to picture the plaintiff as being a man devoid of public spirit. The court, in discussing the article, said: "Without extended comment we deem it sufficient to say that it conclusively appears from the words used that the gist of the article is: That the plaintiff is not a public spirited citizen; that he is seeking to take advantage of and to profit by the industry and public enterprise of other citizens of his community; and that he is unworthy of confidence and should not be patronized by the public. These accusations, in our opinion, expose him to public hatred and contempt, and certainly tend to deprive him of public confidence and to injure him in his occupation." The article complained of herein far more bitterly makes the same In the case of Choctaw Coal & Min. Co. v. Lillich, 204 Ala. 533, 11 A.L.R. 1014, 86 So. 383, the use of the word "slacker" was held to be libelous per se. It is generally held that a publication imputing cowardice is libelous per se. 36 C. J. 1167; Price v. Whitely, 50 Mo. 439; Byrne v. Funk, 38 Wash. 506, 80 Pac. 772, 3 Ann. Cas. 647. The courts have frequently held that to charge one with being a hypocrite is libelous per se. 36 C. J. 1170. The leading case is Jones v. Greeley, 25 Fla. 629, 6 So. 448, wherein the court said: "This court has held that to publish of and concerning any person any language which tends to bring him into ill repute, or to destroy the confidence of his neighbors in his integrity, is actionable per se. Montgomery v. Knox, 23 Fla. 595, 3 So. 211. It is too apparent to require comment, that the language complained of was calculated to produce just such injury to appellee. It in effect brands him as a hypocrite, and as one who, under the cloak of hypocrisy, oppresses the widow and orphan. What worse could be said of him, short of imputing high crime? To be published as a hypocrite the authorities hold is actionable (Townshend, Slander & Libel, § 177; Thorley v. Kerry, 4 Taunt. 355, 128 Eng. Reprint, 367, 9 Eng. Rul. Cas. 1; Maloney v. Bartley, 3 Campb. 213); and when to that is added the stigma of such greed as impels him to inflict untold sorrow upon the most helpless members of the community, the case becomes one of much stronger actionable character." In Finch v. Vifquain, 11 Neb. 280, 9 N. W. 43, it was said: "This charge is that the plaintiff 'was an arch hypocrite and scoundrel, who was simply using his talents for (121 Okla. 241, 249 Pac. 145.) money-making purposes, and not through any sincerity in the cause in which he is laboring.' This charge must have been intended by the publishers to degrade the plaintiff in the estimation of the community, and deprive him of that influence and temporal advantage which usually result from a sincere and blameless course of life." It has been held to be libelous per se to charge one with being unfaithful to his employment (Burghardt v. Scioto Sign Co. 191 Iowa, 384, 179 N. W. 77), or with abusing the confidence of a friend and thereby taking advantage of him (Stewart Pierce, 93 Iowa, 136, 61 N. W. 388). See, also Eckert v. Van Pelt, 69 Kan. 357, 66 L.R.A. 266, 76 Pac. 909. v. No one may doubt the loathing contempt the author held for Martz, and through his article he gave vent to his spleen, expressing himself in defamatory, scurrilous terms. This government, through its courts, owes its patriotic sons a duty to protect them from such slandering, traducing defamers, who would, by their cynical lies, destroy patriotism, and take that from a man which neither he nor the courts could return-honor and reputation. We feel that a court would be recreant in its governmental duty not to stay the hand of one who would so crucify patriotism. The plaintiff has come into court seeking redress for an attack that could have been the moving cause of a tragedy; for this he is to be commended. He has pursued the orderly way to settle individual wrongs as well as the adopted manner of settling wrongs between his country and others. His injury is in a measure the injury of the public; it should be redressed, and those who vilify the honorable service record of a soldier should be warned that they do so at their peril. It is next insisted by the defendants that the verdict may not be sustained because there was no the provisions of our statutes does not require that special damages be pleaded or proven. Kelly v. Roetzel, 64 Okla. 36, 165 Pac. 1150; Gundram v. Daily News Pub. Co. 175 Iowa, 60, 156 N. W. 840. The plaintiff is not required to make proof of damages in such instance. See also Jimeno v. Commonwealth Home Builders, 47 Cal. App. 660, 191 Pac. 64. Counsel for defendants herein next urge that the article cannot be held to be libelous per se, because it did not charge the plaintiff with doing anything other than he might legal-charging legal ly do. With this contention we are unable to agree. In the fourth paragraph of the syllabus in the case of Kee v. Armstrong, B. & Co. 75 Okla. 84, 5 A.L.R. 1349, 182 Pac. 494, this court said: "Words charging one with being engaged in a perfectly lawful transaction, or merely doing that which he has a legal right to do, are not actionable per se.' An examination of that case dis closes that such pronouncement was dictum. We approve the conclusion reached in that case, but cannot accept the rule above quoted. It is only necessary to refer to a few of the numerous cases wherein it has been repeatedly held that publications exposing one to public hatred, contempt, ridicule, or obloquy are libelous per se where the acts charged were not illegal to show such rule to be unsound. See Bratcher v. Gernert, supra; Spencer v. Minnick, 41 Okla. 613, 139 Pac. 130; Wiley v. Oklahoma Press Pub. Co. 106 Okla. 52, 40 A.L.R. 573, 233 Pac. 224. In the Wiley Case, supra, an article stating that a father condoned the act of an officer in shoot ing his son when in the act of committing a felony was held to be libelous per se because it pictured the father as being heartless and unnatural. Such a contention flies in the face of every accepted definition proof of actual damages. A publi- of libel. The true rule is that, where Ication that is libelous per se both under the common law and under the publication charges the plaintiff with nothing that he might not have legally and properly done, the same cannot be held to be libelous per se. In the case of Bennet v. Commercial Advertisers' Asso. 230 N. Y. 125, 129 N. E. 343, the Court of Appeals of New York, in discussing a publication which charged a Congressman with putting a joker in a bill, answered the contention urged by counsel for the defendants as follows: "The libel law has never been confined to charges of illegality or lawbreaking. Any false accusation which dishonors or discredits a man in the estimate of the public or his friends and acquaintances or has a reasonable tendency so to do is libelous. In Triggs v. Sun Printing & Pub. Asso. 179 N. Y. 144, 66 L.R.A. 612, 103 Am. St. Rep. 841, 71 N. E. 739, 1 Ann. Cas. 326, a libel was stated to be a written or printed statement or article, published of or concerning another, which is false and tends to injure his reputation and thereby expose him to public hatred, contempt, scorn, obloquy, or shame." The same contention was made in the case of Stevens v. Snow, 191 Cal. 58, 214 Pac. 968, and the Supreme Court of California said: "Appellants complain that the trial court erred in instructing the jury that the publication was libelous per se, and they invoked the rule that 'it is never libelous to accuse a person of having done that which he may legally and properly do.' The validity of this rule may be conceded, but in its application the words 'and properly' must not be ignored. It is not sufficient answer to a charge of libel to show that the publication only accuses the plaintiff of having done that which he may legally do. It has never been the law that a publication, to be libelous, must accuse a person of having committed a crime or otherwise violated some law." In so far as the case of Kee v. Armstrong, B. & Co. supra, holds that to charge one with doing nothing more than he might lawfully have done is not libelous per se, the same is overruled. The judgment of the trial court is affirmed. Branson, V. Ch. J., and Harrison, Mason, Lester, Hunt and Clark, JJ., concur. Nicholson, Ch. J., absent, not participating. Petition for rehearing denied July Libel and slander: imputing disposition to avoid service in war. As to libel or slander in charging one with being a "slacker," see annotation in 11 A.L.R. 1017 [Libel and Slander, § 9]. As a general rule, written words exposing the person to whom they refer to hatred, ridicule, contempt, shame, or disgrace, are libelous per se. 17 R. C. L. 286. An extended examination of the authorities has disclosed no case, other than the reported case (DUSABEK V. MARTZ, ante, 253), dealing with the subject under annotation. In the reported case (DUSABEK V. MARTZ) it was held that a publication which charged that the plaintiff deliberately avoided war service, as long as was humanly possible, by being a groom to a "war bride," and called him one of "those yellowbacked single guys," and which further charged that, after going into the Army, he managed to get into the commissary department to insure his personal safety, and also charged that the plaintiff, upon his return, became the head of a patriotic organization for mercenary purposes, tended to lower the plaintiff in the estimation of honorable men and women, and was libelous per se. Although not charging the plaintiff with avoiding war service, it was held in Choctaw Coal & Min. Co. v. Lillich (1920) 204 Ala. 533, 11 A.L.R. 1014, 86 So. 383, that posting his name, along with others, as a man not at work in a mine operated by defendant, under the caption "List of Slackers," was libelous per se. W. S. C. (W. Va., 135 S. E. 225.) H. C. WILMER, Plff. in Err., V. HARRY ROSEN. West Virginia Supreme Court of Appeals - May 18, 1926. (W. Va., 135 S. E. 225.) Evidence, § 1216 malicious prosecution - zeal. 1. In actions for malicious prosecution, evidence of defendant's zeal and activity in pushing the prosecution against plaintiff is admissible on the question of malice. [See annotation on this question beginning on page 265.] Trial, § 143 malicious prosecution probable cause fact or law. 2. In an action for malicious prosecution, the existence of probable cause is generally a mixed question of law and fact. [See 18 R. C. L. 58; 3 R. C. L. Supp. 783; 4 R. C. L. Supp. 1177; 5 R. C. L. Supp. 971.] Malicious prosecution, § 9 defense elements. 3. In an action for malicious prosecution, where the defendant relies on Headnotes by MILLER, J. advice of counsel to justify his institution of the legal proceedings alleged to have been malicious, he must show not only that he consulted a competent lawyer, to whom he made a full and accurate statement of all the material facts, but also what facts were disclosed to counsel, and that he thereafter instituted such proceedings in good faith, in reliance on counsel's advice. [See 18 R. C. L. 47 et seq.; 4 R. C. L. Supp. 1176; 6 R. C. L. Supp. 1050.] ERROR to the Circuit Court for Mercer County to review a judgment setting aside a verdict for plaintiff and awarding defendant a new trial, in an action brought to recover damages for malicious prosecution and unlawful imprisonment. Reversed. The facts are stated in the opinion of the court. Mr. Russell S. Ritz, for plaintiff in error: If Wilmer, under the contract, was a partner, then there was no probable cause for charging him with stealing and embezzling funds in which he had an interest as a partner. Welch v. Franklin Ins. Co. 23 W. Va. 288; Setzer v. Beale, 19 W. Va. 274; Jones v. Murphy, 93 Va. 214, 24 S. E. 825; Murphy v. Fairweather, 72 W. Va. 14, 77 S. E. 321; Teter v. Moore, 80 W. Va. 443, 93 S. E. 342. Plaintiff, being a partner in the net profits to be realized out of the sale of the merchandise sold by him, cannot be charged with embezzling the property or funds in which he had and held an interest as a partner. could he be guilty of embezzling the Nor funds or property which he was authorized and directed to withdraw and use. 20 C. J. 445; 9 R. C. L. 1281. The question of one seeking the ad vice of counsel before instituting a criminal prosecution, and whether such one so seeking such advice, after disclosing all the facts, acted therein in good faith, is a jury question. Sudnick v. Kohn, 81 W. Va. 492, 94 S. E. 962. Messrs. A. J. Lubliner and John Kee for defendant in error. Miller, J., delivered the opinion of the court: This writ of error was awarded to a judgment of the trial court setting aside a verdict for the plaintiff and awarding the defendant a new trial, in an action for malicious prosecution. From the record it appears that for about two years plaintiff was in the employ of defendant, who was engaged in selling silverware and jewelry on the installment plan at Roanoke, Virginia. In establishing a branch office at Bluefield, this state, on May 1, 1923, the two entered into a written agreement, by which plaintiff was placed in charge of the Bluefield office. The agreement provided that the plaintiff was to be paid a salary of $60 per month and to have 33 per cent of the profits arising from the branch office, and to be allowed to draw each month not to exceed $20 in addition, which was to be deducted from his share of the net profits; and plaintiff was to account to defendant at least once a week for all moneys collected, and to furnish itemized statements of all sales for the week, together with a complete inventory of the merchandise on hand. contract did not provide for any particular time when a settlement between the parties was to be made. The On May 7, 1924, defendant Rosen came to Bluefield, and to the home. of plaintiff, who was ill and confined to his bed. Plaintiff says: "I was sick in bed at the time with pleurisy and bronchial trouble, under the care of a doctor, running a temperature of 102, and couldn't turn myself over in bed, and Mr. Rosen came in and said, 'Wilmer, you have given up,' and I said, 'Yes, I have gone the last day I could possibly go.' I had been working then for two weeks, and I was hardly able to get around, and I told him the next day was the day for the settlement, that I had used $189.50 of my third, and I told him exactly where he would find those leases and all, and he turned around and said, "Third, hell, you've got no third, I'll let the law handle you,' . . and went out, and came back again and asked me did I have any money, and I said, 'Yes, what I had was in my pants pocket,' and he went to my pants pocket and took out what money was in there, and also took my watch out, the last cent I had in the world, and he threw 6 cents out on the bed and said, "Take this and get your medicine."" Later the same day Rosen swore out a warrant before a justice of the peace, charging plaintiff with embezzling and stealing money, bank notes, security for money, silverware and other property, to the value of $189, and silverware to the value of $100, and in company with a constable returned to plaintiff's home and had him put under arrest; but the officer reported plaintiff's physical condition to the justice, who, at Rosen's insistence, placed a guard at plaintiff's home until the next day, when the latter gave bond for his appearance before the justice. Upon a hearing the justice was of opinion that there was no probable cause for holding plaintiff and discharged him. From the defendant's contradictory statements when on the witness stand, it is difficult to determine just what did occur on his visit to plaintiff's home. At the July term of the criminal court, defendant Rosen appeared before the grand jury and secured an indictment against plaintiff for the larceny of $189 in money and of silverware to the value of $110. In the meantime plaintiff had gone to Roanoke, Virginia, his former home, and was staying with his sister, until he could recover from his illness and obtain work. Armed with a warrant of arrest, Rosen went to Roanoke, and in his own automobile, with the city chief of police, hunted up the plaintiff, had him arrested and took him to jail, where he was imprisoned for two days, until he could secure bond. Later the plaintiff returned to West Virginia and gave bond for his appearance at the next term of the criminal court of Mercer county. He was never brought to trial, the charge against him being dismissed on motion of the prosecuting attor ney. Plaintiff justified taking and using the $189 in question on the advice given him by Rosen that he had an interest in the profits of the business and a right to use a part thereof. Plaintiff testified: "He made the statement several times that I had a one-third interest, that I might as well go ahead and use it and keep account of it and when |