side, or at the Central Criminal Court. (19 & 20 Vict. c. 16, s. 1.) A successful prosecutor will be entitled to his costs, whether he be "the party grieved or injured" by the defendant's words or not. (R. v. Oastler, L. R. 9 Q. B. 132; 43 L. J. Q. B. 42; 22 W. R. 490; 29 L. T. 830; overruling R. v. Dewhurst, 5 B. & Ad. 405.) The costs will be taxed under a side-bar rule; and if they are not paid within ten days the recognisance will be estreated, and the sureties compelled to pay. (16 & 17 Vict. c. 30, s. 6.) The sureties may then sue the defendant and recover the amount for which they became bail in an action for money paid at the defendant's request. (Jones v. Orchard, 16 C. B. 614; 24 L. J. C. P. 229; 3 W. R. 554.) A writ of certiorari may also be applied for to bring up an indictment in order that its validity may be considered and determined, and that it may be quashed, if proved invalid. Such an application must be made after the bill is found and before judgment has been given thereon; for after judgment has been given no writ of certiorari can issue; the record can only be removed by writ of error. (R. v. Seton, 7 T. R. 373; In re Pratt, 7 A. & E. 27 ; R. v. Unwin, 7 Dowl. 578; R. v. Christian, 12 L. J. M. C. 26; R. v. Wilson, 14 L. J. M. C. 3; R. v. Boaler, 67 L. T. 354; 56 J. P. 792.) The Court below has full power to hear a motion in arrest of judgment.

Evidence for the Prosecution.

When the case comes on for trial the onus lies on the prosecutor to prove

(1) That the defendant published the defamatory words. As to what is a sufficient publication in law, see ante, Chapter VI., pp. 150172. As to constructive publication by the act of the defendant's servant or agent, see ante, pp. 545-550. The proof of publication in criminal cases is the same as in civil cases, save that it is not essential to prove a publication to a third person, where the indictment alleges an intent to provoke a breach of the peace. (R. v. Wegener, 2 Stark. 245; Phillips v. Jansen, 2 Esp. 624; Clutterbuck v. Chaffers, 1 Stark. 471.) Sect. 15 of the Newspaper Libel and Registration Act, 1881, which facilitates the proof of the ownership of a newspaper, applies to criminal as well as to civil proceedings. (See ante, p. 548.) Sect. 27 of the Common Law Procedure Act, 1854 (ante, p. 625), as to comparison of handwriting, though originally confined to civil proceedings (sect. 103), now applies to criminal trials as well. (28 & 29 Vict. c. 18, s. 8. See also R. v. Beere, 1 Lord Raym. 414; 12 Mod. 221; 2 Salk. 417; Carth. 409; Holt, 422; R.

v. Slaney, 5 C. & P. 213.) Whoever requests or procures another to write or publish a libel will be held equally guilty with the actual publisher. (R. v. Cooper, 8 Q. B. 533; 15 L. J. Q. B. 206.) If the manuscript from which a libel has been printed be produced and proved to be in the handwriting of the defendant, this is primâ facie proof that he authorised or directed the printing and publishing; though the defendant may give evidence to rebut it. (R. v. Lovett, 9 C. & P. 462. And see the remarks of Lord Erskine, 5 Dow, H. L. at p. 201.)

(2) It is, however, necessary in a criminal case to prove further that the prisoner published the libel in the county in which the venue is laid. However, if the defendant write a libellous letter and cause it to be posted, that letter is published both in the county where it is posted, and in the county to which it is addressed, if it be opened there. (R. v. Burdett, 4 B. & Ald. 95; R. v. Girdwood, 1 Leach, 169; East, P. C. 1120, 1125; R. v. Holmes, 12 Q. B. D. 23; 49 L. T. 540.) If the person to whom it is addressed be not then at the address given on the envelope, and the letter be forwarded unopened to him in another county and there opened, then this is a publication by the defendant in that other county. (R. v. Watson, 1 Camp. 215.) The post-mark is sufficient primâ facie evidence that the letter was in the post-office named on the date of the mark. (R. v. Plumer, Russ. & Ry. 264; R. v. Canning, 19 St. Tr. 370; R. v. Hon. Robert Johnson, 7 East, 65; 3 Smith, 94; 29 How. St. Tr. 103; Stocken v. Collin, 7 M. & W. 515; 10 L. J. Ex. 227.) These cases must be taken to overrule the dictum of Lord Ellenborough in R. v. Watson, 1 Camp. 215. An admission by the defendant that he wrote the libel is no admission that he published it, still less that he published it in any particular county. (The Seven Bishops' Case, 4 St. Tr. 304; R. v. Burdett, 4 B. & Ald. 95.)

(3) The prosecutor must now put in the libel and have it read to the jury. The libel itself must, if possible, be produced at the trial. If it be in the possession of the defendant, and notice has been given to him to produce it, and he refuses so to do, secondary evidence may be given of its contents. (Attorney-General v. Le Marchant, 2 T. R. 201, n.; R. v. Boucher, 1 F. & F. 486.) But proof that the document was last seen in the possession of a servant of the defendant does not of itself entitle the prosecutor to give parol evidence of its contents. (R. v. Pearce, Peake, 75.) Notice to produce must be given a reasonable time before the trial. No general rule can be laid down as to what is a reasonable time; each case must be governed by its particular circumstances; but if it appear that since the notice

was given there was an opportunity of fetching the document, the notice will be held sufficient. (Per Bramwell, B., in R. v. Barker, 1 F. & F. 326.) Any other documents which explain the libel, and are referred to in it, may also be put in and read. (R. v. Slaney, 5 C. & P. 213.)

Any variance between the words as proved and the words as laid will be fatal, if it in any way affects the sense. But a variance which is immaterial to the merits of the case may be amended by the judge at the trial, at any time before verdict, if he thinks that such amendment cannot prejudice the defendant in his defence on the merits. (7 Geo. IV. c. 64, s. 20; 14 & 15 Vict. c. 100, ss. 1, 24, 25.) But once such amendment has been made, there is no power of amending the amendment, or of reverting to the indictment as it originally stood; but the case must be decided upon the indictment in its amended form.

The prosecution must further prove the innuendoes and all explanatory averments of extrinsic facts, whenever such proof is necessary to bring out the libellous nature of the publication, or to point its application to the person defamed. That asterisks or blanks are left where the name of the person defamed should appear is no defence, if those who knew the circumstances understood the libel to refer to the prosecutor. Any declarations of the defendant as to what he meant are admissible in evidence against him. (R. v. Tucker, Ry. & Moo. 134.) Strict proof must be given of all material and necessary allegations in the indictment, which the libel itself does not admit to be true. (R. v. Sutton, 4 M. & S. 548; R. v. Holt, 5 T. R. 436; R. v. Martin, 2 Camp. 100; R. v. Budd, 5 Esp. 230.) It will then be for the jury, after considering this evidence, to say whether the publication, when taken as a whole, is or is not a libel.

(4) In a few cases the prosecution must also prove a special intent stated in the indictment. (Ante, pp. 427, 669.) Whether such special intent existed or no is a question for the jury. An averment of intention is divisible; so that where a libel is alleged to have been published with intent to defame certain magistrates, and also to bring the administration of justice into contempt, it is sufficient to prove a publication with either of these intentions. (R. v. Evans, 3 Stark. 35.) Malice need never be proved, unless the occasion be privileged.

(5) If the indictment be framed under sect. 4 of Lord Campbell's Act, the prosecutor must give some evidence that the defendant knew that the words were false. But in no other case need the prosecutor give any evidence to show that the libel is false.

Evidence for the Defence.

The defendant may call evidence rebutting the case for the prosecution. By sect. 9 of the Law of Libel Amendment Act, 1888, and again by the Criminal Evidence Act, 1898, s. 1, the defendant in every proceeding for libel may now give evidence at every stage of the proceeding, if he or she think fit; and so may his wife or her husband. Such witnesses, though competent, are not compellable to give evidence. But if the defendant elects to go into the box he may be cross-examined with a view of proving him guilty of the offence with which he stands charged. (Criminal Evidence Act, 1898, s. 1, sub-s. (e).) So, too, in any proceeding for an illegal practice under the Corrupt and Illegal Practices Prevention Act, 1895, the person charged, and the husband or wife of such person, are competent to give evidence in answer to the charge. (58 & 59 Vict. c. 40, s. 2.) The defendant may dispute the fact of publication, or negative the innuendo, or show that the libel referred to someone else, not the prosecutor. He may give in evidence any facts which put a different complexion on the libel, e.g., other passages contained in the same publication, fairly connected with the same subject. (R. v. Lambert and Perry, 2 Camp. 398; 31 How. St. Tr. 340.) So, too, the defendant may give evidence of any collateral facts which show that the libel complained of is a fair and bonâ fide comment on a matter of public interest, or is privileged by reason of the occasion on which it was published. Unless such privilege be absolute, the prosecutor may rebut the defence of privilege by evidence of malice, precisely as in civil cases.

The defendant may also cross-examine the plaintiff's witnesses as to any previous statements made by them on the subject-matter of the indictment, and if such statements were reduced into writing, such writing may be produced to contradict them. (28 & 29 Vict. c. 18, ss. 4, 5.) As to proving a previous conviction of a witness, see ante, p. 643.

The defendant may call evidence to show that though he published the libel with his own hand he was not at the time conscious of its contents. The onus of proving this lies on the defendant; the bare delivery of the letter, though sealed, has been held to be primâ facie evidence of a knowledge of its contents. (R. v. Girdwood, 1 Leach, 169; East, P. C. 1120, 1125.) But if the defendant can prove that he cannot read, or that he never had any opportunity of reading the libel, but delivered it pursuant to orders, having no reason to suppose its contents illegal, this will be a defence. (See ante, p. 440.)

Again, where evidence has been given which has established a prima facie case of publication against the defendant by the act of some other person acting by his authority, the defendant may prove that such publication was made without his authority, consent, or knowledge, and arose from no want of due care or caution on his part. (6 & 7 Vict. c. 96, s. 7.) The leading case on this section is R. v. Holbrook and others, 3 Q. B. D. 60; 47 L. J. Q. B. 35; 4 Q. B. D. 42; 48 L. J. Q. B. 113. (Ante, p. 550.) Mr. Bradlaugh succeeded in establishing a defence under this section in R. v.

Bradlaugh and others, 15 Cox, C. C. 217. (Ante, p. 443.)

Also, if the defendant has pleaded a plea under sect. 6 of Lord Campbell's Act, but not otherwise, he may give evidence of the truth of the libel. But the truth alone is no defence in a criminal case; the defendant must also show that it was for the public benefit that the matters charged should be published. In R. v. Warnsborough ((1888) 4 Times L. R. 520), Baron Huddleston is reported to have ruled that, while the issue of truth was for the jury, it was for the judge to decide whether the publication was or was not for the public benefit. (Sed quære; see the judgment of the same learned judge in Pankhurst v. Sowler, (1886) 3 Times L. R. 193.) No such plea under Lord Campbell's Act can be pleaded in the case of a blasphemous, obscene, or seditious libel. (R. v. Duffy, 9 Ir. L. R. 329; 2 Cox, C. C. 45; Ex parte O'Brien, 12 L. R. Ir. 29; 15 Cox, C. C. 180; R. v. M'Hugh, (1901) 2 Ir. R. 569.) If a general charge be made in the libel, specific instances must be set out in the plea. It will be sufficient, however, if at the trial two or three distinct instances are proved to the satisfaction of the jury. (R. pros. Lambri v. Labouchere, 14 Cox, C. C. 419; ante, p. 177.)

Evidence that the identical charges contained in the libel which is the subject of the indictment had, before the time of composing and publishing such libel, appeared in another publication which was brought to the prosecutor's knowledge, and against the publisher of which he took no legal proceedings, is not admissible either at common law or under this section. (R. v. Holt, 5 T. R. 436; R. v. Newman, Dears. C. C. 85; 3 C. & K. 252; 1 E. & B. 268; 22 L. J. Q. B. 156; 17 Jur. 617; Pankhurst v. Hamilton, (1886) 2 Times L. R. 682.) That rumours to the same effect had previously been circulated in other newspapers is no justification for the defendant's repeating the statement in his own paper, if he purports to speak"from authority." (R. v. Harvey and Chapman, 2 B. & C. 257.) So, too, it is no defence to a charge of publishing a seditious libel, that it is an extract from an American paper, reprinted as