vided always, that nothing herein contained shall in any manner alter or affect any law now in force in respect of the sending or delivery of threatening letters or writings.' Sec. 4. If any person shall maliciously publish any defamatory False defamalibel knowing the same to be false, every such person, being con- tory libel victed thereof, shall be liable to be imprisoned in the common punishable by gaol or house of correction for any term not exceeding two years, and fine; and to pay such fine as the Court shall award.' imprisonment prisonment or fine. of an indict libel. Sec. 5. If any person shall maliciously publish any defamatory Malicious libel, every such person, being convicted thereof, shall be liable to defamatory fine or imprisonment or both, as the Court may award, such im- lie, by imprisonment not to exceed the term of one year.' Sec. 6. On the trial (u) of any indictment or information for a Proceedings defamatory libel, the defendant having pleaded such plea as herein- upon the trial after mentioned, the truth of the matters charged may be inquired ment or ininto, but shall not amount to a defence, unless it was for the public formation for benefit that the said matters charged should be published; and a defamatory that to entitle the defendant to give evidence of the truth of such matters charged as a defence to such indictment or information it shall be necessary for the defendant, in pleading to the said indictment or information, to allege the truth of the said matters charged in the manner now required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published; to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof; and that if after such plea the defendant shall be convicted on such indictment or information it shall be competent to the Court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the said plea, and by the evidence given to prove or to disprove the same provided always, that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea of justification provided also that, in addition to such plea, it shall be Double plea. competent to the defendant to plead a plea of not guilty: provided Proviso as to also, that nothing in this Act contained shall take away or preju- plea of not guilty in civil dice any defence under the plea of not guilty which it is now com- and criminal petent to the defendant to make under such plea to any action or proceedings. indictment or information for defamatory words or libel.' facie case of publication by an agent. Sec. 7. Whensoever, upon the trial of any indictment or infor- Evidence to rebut primá mation for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part.' Sec. 8. In the case of any indictment or information by a private prosecutor for the publication of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to (u) See R. v. Townsend, 4 F. & F. 1089. In what cases on prosecution libel, defend for private ant or prosecutor is en titled to costs. Interpretation of Act. Threatening to publish a libel, &c. A justification cannot be pleaded to a recover from the prosecutor the costs sustained by the said defendant by reason of such indictment or information; (v) and that upon a special plea of justification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea, such costs so to be recovered by the defendant or prosecutor respectively to be taxed by the proper officer of the Court before which the said indictment or information is tried.' (w) Sec. 9. Wherever throughout this Act, in describing the plaintiff or the defendant, or the party affected or intended to be affected by the offence, words are used importing the singular number or the masculine gender only, yet they shall be understood to include several persons as well as one person, and females as well as males, unless when the nature of the provision or the context of the Act shall exclude such construction.' Where one count charged the defendants with offering to prevent the publishing, and another with threatening to publish certain matters of the prosecutor with intent to extort money, and the defendants appeared to have attempted to obtain money from the prosecutor by leading him to believe that an information for an offence relating to the post-horse duties would be laid against him, and that they would prevent it if he paid them a sum of money, it was held that the evidence did not support the counts. (x) It has been held in Ireland that to an indictment for publishing in a newspaper a certain false, defamatory, malicious, and seditious seditious libel. libel' concerning her Majesty's Government and the Parliament of the United Kingdom, with intent to create disaffection and hatred to her Majesty's Government and the Parliament, a special plea of justification cannot be pleaded under the 6 & 7 Vict. c. 96, s. 6. (y) Previous cation. Where to a criminal information for a libel the defendant pleaded a justification, alleging that the imputations contained in the libel were true, it was held that it was not competent to the defendant to prove that imputations identical with those in the libel had been previously published in a book. (2) There can be Where a justification is pleaded under the 6 & 7 Vict. c. 96, s. 6, no partial finding on a to an information for a defamatory libel, and the libel contains plea of justifi- several distinct imputations, and the plea alleges the truth of all, and is traversed generally, if the evidence fail as to any one of them, the verdict will be entered generally against the defendant. Where, therefore, upon the trial of such an issue upon such a plea, evidence was offered in support of some only of the imputations, and the jury found that only one of the imputations upon which evidence was offered was proved, the verdict was entered for the Crown generally; as there can be no partial finding for a defendant on the ground that a justification is partially established. (a) The Court is to consider all the facts proved for and By the express enactment that, wherever there is a conviction after such a plea of justification 'the Court, in pronouncing sentence,' shall consider whether the guilt of the defendant is aggra (v) See post, p. 229. (w) Such costs may be recovered by action, Richardson v. Willis, 8 L. R. Ex. 69; 42 L. J. Ex. 68. (2) Reg. v. Yates, 6 Cox C. C. 441. vated or mitigated by the said plea, and by the evidence given to against a plea, prove and disprove the same,' the Court is to consider the evidence and apportion the punishon the one side and the other, and to form their own conclusion ment accordwhether it aggravates or mitigates the guilt of the defendant, and ingly. they are to apportion the punishment accordingly. The evidence, as it appears on the notes of the judge who presided at the trial, comes in place of affidavits in aggravation and mitigation of punishment when sentence is to be pronounced, and by that the sentence is to be regulated, and not by any declaration of the jury as to the credit which they think ought to be given to the witnesses. (b) punishment. In such a case the defendant may, in mitigation of punishment, Affidavits in show by affidavit that after the publication, but before pleading, mitigation of information was given to him which, if true, would have supported an allegation in the plea, evidence having been given at the trial to account for the non-production of proof, but no evidence in support of the allegation itself. (c) A libel imported to be founded on certain newspaper reports, and upon the foundation of those reports charged certain troops with acts of murder: after conviction the defendant offered affidavits that the newspapers did contain those reports, and also other affidavits that the facts were true. The former affidavits were received, because they explained the situation in which the defendant stood at the time he wrote the libel, and showed the impression under which he wrote; but the latter were rejected, because the receiving them might deprive of a fair trial persons who might afterwards be tried for the murders; and if murders were committed, the proper course was to prosecute and bring to a fair trial, not to libel and create an unfair prejudice. (d) Where an indictment for a libel on the governor of a parish Costs. work house was preferred by the direction and carried on at the expense of the select vestry of the parish, and the defendant having removed it into the King's Bench by certiorari was convicted, it was held that the party libelled was not the 'party grieved' within the 5 & 6 Will. & M. c. 11, s. 3, and, therefore, was not entitled to costs. (e) When a prosecutor or defendant is entitled to costs under Costs under 6 & 7 Vict. c. 96, s. 8, see ante, p. 227. On a criminal in- 6 and 7 Vict. formation for libel the defendant, if he obtain a verdict, is c. 96. entitled to costs under the 6 & 7 Vict. c. 96, s. 8, though he has not pleaded a special plea under sec. 6; and the judge cannot deprive him of costs by a certificate, the provision in the 4 & 5 Will. & M. c. 18, s. 2, on this head being superseded by the later Act. (f) Upon the trial of a criminal information for a defamatory libel the defendant obtained a verdict, whereupon the Master on taxation allowed him the costs which he had incurred in showing cause unsuccessfully against the rule nisi for filing the information under the above section 8: held by Mellor, J., and Lush, J. (Blackburn, J., dub.), that the allowance was properly made. (g) The Court of Queen's Bench has no jurisdiction to (b) Reg. v. Newman, 1 E. & B. 558. (d) Rex v. Burdett, 4 B. & A. 314. See Reg. v. Hawdon, 3 P. & D. 44. (f) Reg. v. Latimer, 15 Q. B. 1077; 20 L. J. Q. B. 129. (g) R. v. Steel, 45 L. J. M. C. 391. direct the clerk of assize to review his taxation of costs (under the 6 & 7 Vict. c. 96, s. 8) of an indictment for libel tried on the Crown side under a commission of oyer and terminer. But, perhaps, one of the commissioners under that commission might do so, before that commission was superseded. (h) The offence of libel is not triable at Quarter Session, (5 & 6 Vict. c. 38, s. 1.) (h) Reg. v. Newhouse, 1 Bail. C. R. 129; 22 L. J. Q. B. 127. 231 CHAPTER THE FOURTH. OF THREATS AND THREATENING LETTERS. IT is said, that the dispersing of bills of menace threatening Threats at destruction to the lives or properties of those to whom they were common law. addressed, for the purpose of extorting money, is, at common law, a high misdemeanor, punishable by fine and imprisonment. (a) Threats directed against persons immediately under the protection of a court are offences punishable by fine and imprisonment, as if a man threaten hts adversary for suing him, a counsellor or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in his custody, and properly executing his duty. (b) And a precedent is given of an indictment at common law against the attorney of a plaintiff in a cause for writing a letter to the attorney of the defendant, who had obtained a verdict on the evidence of his son, threatening to indict the son for perjury unless the defendant gave up the benefit of the verdict. (c) Threatening party with penalties for dicines without a stamp, holden not to selling me But it was holden that threatening by letter or otherwise to put Rex v. Southin motion a prosecution by a public officer to recover penalties for erton. selling Fryar's Balsam, without a stamp (whlch by the 42 Geo. 3, c. 56, is prohibited to be vended without a stamped label), for the purpose of obtaining money to stay the prosecution, was not such a threat as a firm and prudent man might not be expected to resist, and, therefore, was not in itself an indictable offence at common law, although it was alleged that the money was obtained, no reference being made to any statute which prohibits such attempt. A count alleged that the defendant, intending to abuse the laws for the protection of the revenue, sent the following letter:: 'SIRS, 'I am applied to to prosecute an information against you for selling certain medicines without stamps. I have told the parties that all such informations must now be prosecuted by the public officer, and have advised them to let me write to you on the subject, and hear what you have to say. If I can be of any service to you in stopping them, you will write me accordingly, and I will get the best terms I can.' Another count charged the defendant with corruptly attempting to extort 107. by threatening that a prosecution should be commenced for having sold Fryar's Balsam without a stamp. After argument in arrest of judgment, Lord Ellenborough (a) 1 Hawk. P. C. c. 53, s. 1. Reference is made to 1 Hale, 567, but qu. the reference. (b) 4 Blac. Com. 126. be indictable. But where the threat is calculated to overcome a firm and prudent man, it is indictable. |