“ While we reverse the order to arrest the judgment, we affirm the ruling of the court of appeals that there was an erroneous instruction on a matter material to the case and harmful to the defendant. The trial judge, summarizing the facts, charged that if the jury found from the evidence that plaintiff was district attorney; that in the District there was a race track where races were run and bets were made, which some claimed could have been prevented by prosecutions instituted by the plaintiff, and that he did not, in fact, prosecute such persons ”

“ Where words are libelous per se the judge can so instruct the jury, leaving to them only the determination of the amount of damages. Where the words are not libelous per se, and, in the light of the extrinsic facts averred, could not possibly be construed to have a defamatory meaning, the judge can dismiss the declaration on demurrer, or, during the trial, may withdraw the case from the jury. But there is a middle ground where, though the words are not libelous per se, yet, in the light of the extrinsic facts averred, they are susceptible of being construed as having a defamatory meaning. ”

“ It is, however, unnecessary to discuss the sufficiency of the complaint, which, even if defective, was amendable. The defendant did not demur, but joined issue, the case was tried by a jury, a verdict for the plaintiff was rendered, judgment was entered, and the defendant then moved in arrest.
Such motions are not favored. In considering them, courts liberally construe the pleadings, giving the plaintiff the benefit of every implication that can be drawn therefrom in his favor. Sentences and paragraphs may be transposed. ”