PART IV.

without any name to it, and that he sent it to Bate, who was the editor, and that Bate sent it back to him next CHAPTER XL day among other papers for publication. It was objected that Haswell was an accomplice, and that therefore his affidavit was not admissible, and a joint affidavit of the defendant Bate and several other persons was produced, tending to contradict him; but the court made the rule absolute, and the counsel for the prosecution insisted upon a rule absolute against Haswell also, notwithstanding Lord Mansfield's question whether they meant to proceed against their own witness.

been granted on

publication.

When we come to the evidence to be produced at the Where rule has trial we shall deal more fully with the question-what insufficient is sufficient evidence of publication? but it should be evidence of noted here, that if a rule has been granted on insufficient evidence of publication, the court will discharge it, although the affidavits filed by the defendant in opposition to the rule admit the publication.

This was decided in the case of Reg. v. Baldwin, (a) where Lord Denman, C.J., said: "We have decided before, that affidavits on showing cause cannot assist the party moving, where the affidavits made in support of the motion are defective; because the court, if it had known the fact, would not have granted the rule."

irrelevant

It is necessary to guard against inserting improper or Improper or irrelevant matter in the affidavits, as there is danger of the matter in court refusing, on that ground, to interfere.

In the case of Rex v. Burn, (b) Lord Denman, C.J., said: "The prosecutor has stated a sufficient case for a criminal information; but he has, in the early part of his affidavit, introduced words irrelevant and reflecting on the character of the party against whom he applies; and afterwards, in explanation of something which he states to have passed, he goes into a narrative of matters impertinent to the cause, and calculated only to prejudice the minds of the court. Parties who come before the court with affidavits, are to confine themselves to the simplest statement of that which induces them to make the application, and not to enter upon discussions like this, unless the nature of the subject makes them absolutely necessary." The court discharged the rule solely upon this ground.

affidavits.

When the rule is obtained, care must be taken that it is Drawing up properly drawn up. No documents can be referred to upon

(a) 8 A. & E. 168.

(b) 7 A. & E. 193, and see Reg. v. Doherty (1 Arn. & Hodg. New Term Reports, 16.

rule.

PART IV,

Service of rule.

the argument which are not referred to in the rule. (a) It CHAPTER XI. must be drawn up "upon reading" the publication, which must be annexed to the affidavits and marked as an exhibit. The rule must be obtained from the Crown Office, and a copy of it served on the defendant personally, or by leaving it with some member of his family at his residence. The original must be shewn to the person who is served with the copy.(b) In shewing cause against the rule, the defendant may urge the truth of the libel; for, as before stated, although the truth is, by itself, no answer to an indictment, the court will not grant its aid, by information, to a tainted person.

Showing cause against rule.

New rule.

In the case of Rex v. Eve, (c) a rule nisi had been granted against the publishers of the Satirist and the Censor of the Times, for the following libel: "Simon, but more commonly known in the play world as King Digby, from his skill in palming that card at écarté, and who long enjoyed an unenviable notoriety among the legs at the club at Brighton, is living in obscurity in Devonshire. He has been, however, recently in town, and was seen at Epsom during the races, sharply upon the look-out, it was presumed, for flats." Digby made an affidavit that he was never guilty of palming the king at " écarté," nor of unfair play at cards or any other game, and that he had not been at Epsom races for about seven years. The only affidavit in opposition was by one Thomas Shepard, who swore that he was intimately acquainted with Digby, and that on one occasion, when Digby dined with him at defendant's residence in Shaftesbury-terrace, Pimlico, Digby played at écarté with him, won of him from 80l. to 851., was detected by him in palming the king, confessed the fact, and returned the money. Upon this affidavit the court discharged the rule. But afterwards a new rule was granted, and made absolute, on affidavits deposing that Shepard had, on oath, in the Consistory Court in London, contradicted his affidavit, and that Digby had preferred an indictment for perjury against him, and that the bill was found, on Digby's oath denying the truth of the statements in Shepard's affidavits, and on the testimony of several other witnesses; that a warrant had been obtained for Shepard's arrest, but that he could not be found, and was believed to have left the country.

The circumstance of the last cited case were peculiar. In general, where a rule for a criminal information has been discharged on the merits, the court will not grant a new (a) Rex v. Baldwin (8 A. & E. 168); Reg. v. Woolmer (12 A. & E. 422). (b) Cole on Criminal Informations, 59. (c) 5 A. & E. 780.

PART IV.

rule on a second application in the same case, even upon additional affidavits. "A party moving for a criminal infor- CHAPTER XI. mation," says Lord Denman, C. J.,(a) "has some great advantages, and he may reasonably be required to collect all the necessary materials for his application when he first makes it." To grant a new rule in such a case, would be, according to Parke, J.,(b) "a precedent for re-enquiry in almost every instance where a criminal information was moved for without success. It would rarely happen that the party would not be able to mend his case on a second motion. The prosecutor has another remedy."

The defendant may also submit that the affidavits on which the rule was granted fail in substance or form to satisfy the requirements of the court, or that they are answered by affidavits made on his behalf.

If the rule be discharged on a preliminary objection, the Costs. defendant will not generally obtain his costs; (c) but if it be discharged on the merits, the court generally grants costs.

absolute.

On the rule being made absolute, the prosecutor must Recognisance on enter into the necessary recognisance, required by 4 & 5 rule being made Will. & M. c. 18, s. 2, which enacts "that the clerk of the Crown shall not issue out process upon the information until he shall have taken, or had delivered to him, a recognisance from the person or persons procuring such information, to be exhibited with the place of his, her, or their abode, title, or profession, to be entered to the person or persons against whom such information or informations is or are to be exhibited, in the penalty of twenty pounds, that he, she, or they, will effectually prosecute such information or informations, and abide by and observe such orders as the said court shall direct, which recognisance the said clerk of the Crown, and every justice of the peace of any county, city, franchise, or town corporate (where the cause of any such information shall arise), are hereby empowered to take."

mation.

The security required by the statute is only in the penalty of 201. The court will not require it for a larger amount. (d) In substance, the information is the same as an indictment. Form of inforWhatsoever certainty is requisite in an indictment, the same, at least, is necessary in an information; and consequently, as all material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital. (e)

(a) Rex v. Smithson (4 B. & Ad. 862).

(b) Ib.

(c) Reg. v. Proprietors of Nottingham Journal (9 Dowl. 1043).

(d) Rex v. Brooke and others (2 T. R. 190).

(e) Hawkins P. C. Bk. 2, c. 26, tit. “Information,” s. 4.

PART IV.

A form of a criminal information will be found in the CHAPTER XI. Appendix ; and, as to the substance, the reader is referred to section III. (post), where the requisites of an indictment are

Subpoena and appearance.

Non-appearance of defendant.

Rule to plead.

Sending down

set out.

After filing the information and taking the security mentioned above, the Crown Office issues a subpoena, which is made out by the prosecutor's attorney and a copy served on the defendant, who has four days (exclusive of Sunday) from the day of the return to appear.

Under 48 Geo. 3, c. 58, s. 1, a judge's warrant may be issued to bring the defendant before him, or some other judge of the Queen's Bench, in order to his being bound, with two sufficient sureties, in such sum as shall be expressed in the warrant, with condition to appear in the said court at the time mentioned in the warrant, and to answer to all and singular indictments or informations for any such offence.

It is more usual, however, to subpoena the defendant; and if he does not cause an appearance to be entered within the time allowed, the attorney for the prosecutor may, upon filing an affidavit of service of the subpoena, issue an attachment; and if the defendant cannot be found, he may be outlawed.

After appearance, the prosecutor may give a rule to plead within ten days after service, as well in term as in vacation; (a) and in case no plea is entered within the time allowed, judgment for want of such plea may be signed at the opening of the office on the following morning, unless an order of the court or of a judge, extending the time, shall have been obtained. (b)

When the plea has been entered, the record is made up record for trial. and sent down, by a writ of nisi prius, into the county where the libel was published.

Trial.

Ordinary mode of inquiring into crimes.

The trial is conducted as an ordinary civil action, subject to the rules of evidence applicable to a criminal prosecution. What evidence is admissible and sufficient to bring home the charge to the defendant; what pleas he may put on the record; and the evidence necessary to support them, are set out in section III. (post).

II. JURISDICTION OF JUSTICES OF THE PEACE.

In the last section we dealt with the extraordinary means which may be invoked to protect society, public morality, and private character from blasphemous, seditious, immoral, or defamatory publications. Those means are in addition to, and not a substitution for, the machinery by which all crimes are inquired into.

(a) See No. 17 of Rules of Court under 6 Vict. c. 20. (b) Rule 19.

PART IV.

CHAPTER XI.

Summons or

Upon complaint that any person has published a libel, a justice of the peace may either summon the accused to appear before him or some other magistrate; or he may, if he think fit, issue his warrant for his apprehension. The more warrant. usual course is, in the first instance, to grant a summons, and if the defendant do not obey it, then to issue a warrant.

In the case of Butt v. Conant (a) it was argued that a magistrate had no authority to issue a warrant for the arrest and commitment of a person charged with having published a libel, but the court were unanimous in deciding that he had. And, independently of that judgment, the matter is now set at rest by 11 & 12 Vict. c. 42, s. 1, which empowers any justice of the peace, upon a complaint being made before him that any person has committed, or 18 suspected of having committed, "any indictable offence whatsoever," within the limits of the jurisdiction of such justice, to issue a warrant for his apprehension; or he may, in the first instance, issue a summons.

magistrate.

Upon the inquiry before the magistrate, if the prose- Defence before cution establish a prima facie case, the defendant call may witnesses to prove that he did not publish the libel; that it is true; or any other matter which would be admissible as evidence at the trial.

Before the passing of 30 & 31 Vict. c. 35, it might have been doubtful whether the justices had power to hear evidence in justification of the libel, as the 6th section of 6 & 7 Vict. c. 96, which allows the defendant to plead a justification, refers only to the trial, and not to the inquiry before the magistrate. On the other hand, there are, as will hereafter be seen, two charges upon which a person accused of publishing a defamatory libel, may be committed, viz., the common law offence, and the offence created by 6 & 7 Vict. c. 96, s. 4-" maliciously publishing any defamatory libel, knowing the same to be false;" and, if he proved to the magistrate that the libel were true, he could not well be committed on this latter charge.

However that may be, by 30 & 31 Vict. c. 35, s. 3, it is provided that, in all cases where any person shall appear, or be brought, before any justices of the peace, charged with any indictable offence, such justice shall, before committing him for trial or admitting him to bail, ask the accused whether he desires to call witnesses; and the evidence of any witnesses he wishes to call is to be taken down in the same manner as the evidence for the prosecution, to be signed by the justices, and transmitted with the depositions; and (a) 1 B. & B. 548.