oath aforesaid, do further present, that the said J. S., contriving and intending as aforesaid, afterwards, to wit, on the day and year aforesaid, wickedly, wilfully, and maliciously did provoke, instigate, excite, and challenge the said J. N. to fight a duel with and against him the said J. S.; to the great damage, etc. (as in the first count).

Misdemeanor: fine or imprisonment, without hard labour, or both. See ante, pp. 238, 240. See 1 Hawk. c. 63, s. 3; Steph. Dig. Cr. L. (6th ed.) 54: R. v. Philipps, 6 East, 464: R. v. O'Brien, Smith and Batty (K. B. Ir.), 79; and the precedents, Cro. Circ. Comp. 102-104; 4 Went. 315; 6 Went. 385-461; 3 Chit. Cr. L. 848. From the above precedent an indictment may readily be framed against the person who delivered the challenge.

Evidence.

Give the letter in evidence, and prove the handwriting. Prove also the delivery of it to J. N. Where the letter containing the challenge was put into the post-office in the county of Middlesex, to be delivered to the prosecutor in another county, Lord Ellenborough held, that the party might be indicted in Middlesex: for sending the challenge is the offence; whether it reach the person to whom it is sent or not is immaterial. R. v. Williams, 2 Camp. 506.

Provocation, however great, is no excuse or justification on the part of the defendant (R. v. Rice, 3 East, 581; 7 R. R. 523), however it may weigh with the court in apportioning the punishment.

Indictment for provoking a Man to send a Challenge. (Common Law.)

Proceed as in the last precedent to the*, and then thus:]-wickedly, wilfully, and maliciously did utter, pronounce, declare, and say to and in the presence and hearing of the said J. N., these words following, that is to say: "You are a scoundrel and a liar, and I shall take care to let the world know that you are so;" with intent to instigate, excite, and provoke the said J. N. to challenge him the said J. S. to fight a duel with and against the said J. N.; to the great damage, etc. (as ante, p. 1114). If there be any doubt as to the words, lay them differently in different counts; and add a general count, not setting out the words, but merely charging the defendant with having used threats and opprobrious language to the prosecutor, with intent, etc.

Misdemeanor: fine or imprisonment, without hard labour, or both. See ante, pp. 238, 240. And see R. v. Philipps, 6 East, 464.

Evidence.

Prove the words. (See ante, p. 302.) And give evidence of circumstances from which the jury may infer the defendant's intent, if such intent do not sufficiently appear from the words proved. See R. v. Philipps, 6 East, 464.

SECT. 8.

SENDING LETTERS CONTAINING THREATS TO MURDER OR TO INJURE PROPERTY.

Statutes.

6 & 7 Vict. c. 96 (Libel Act, 1843), s. 3—Threatening to publish or abstain from publishing a libel.]-Ante, p. 523.

24 & 25 Vict. c. 96 (Larceny Act), ss. 46–49—Letters threatening to accuse of crime.]-Ante, pp. 521, 522.

Sect. 44—Letters demanding property by menaces.]—Ante, p. 521.

24 & 25 Vict. c. 97 (Malicious Damage Act, 1861), s. 50-Sending letters threatening to burn or destroy houses, etc., etc.]-Whosoever shall send, deliver, or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing, threatening to burn or destroy any house, barn, or other building, or any rick or stack of grain, hay, or straw, or other agricultural produce, or any grain, hay, or straw, or other agricultural produce in or under any building, or any ship or vessel, or to kill, maim, or wound any cattle, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding ten years or to be imprisoned, . . . and, if a male under the age of sixteen years, with or without whipping. [Framed from 4 G. 4, c. 54, s. 3, and 10 & 11 Vict. c. 66, s. 1, with the additions italicized. See note to next enactment.]

24 & 25 Vict. c. 100 (Offences against the Person Act, 1861), s. 16— Sending letters threatening to murder.]-Whosoever shall maliciously send, deliver, or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing threatening to kill or murder any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding ten years ... or to be imprisoned, . . . and, if a male under the age of sixteen years, with or without whipping.

[This section was framed from 4 G. 4, c. 54, s. 3; and 10 & 11 Vict. c. 66, s. 1. The words secondly italicized were inserted to get rid of R. v. Paddle, R. & R. 484: R. v. Burridge, 2 M. & Rob. 296: R. v. Jones, 1 Pen. 218; 2 C. & K. 398; and R. v. Grimwade, 1 Den. 30; 1 C. & K. 592, except so far as they decide that the letter must be sent to the party threatened, or put in a place where it is likely to be found and conveyed to him. Greaves, Crim. Law Cons. Acts (2nd ed.), 50. As to the word "maliciously," see Greaves, 1. c., and post, p. 1117.]

Indictment under 24 & 25 Vict. c. 97, s. 50.

Commencement as ante, p. 433]-feloniously did send ("send, deliver, or utter, or directly or indirectly cause to be received") to one J. N. a certain letter ("letter or writing") directed to the said J. N., by the name and description of Mr. J. N., threatening to kill and murder the said J. N. ("any person") [or "threatening to burn and destroy a certain dwellinghouse (any house, barn, or other building, or any rick or stack of grain, hay, or straw, or other agricultural produce, or any grain, hay, or straw, or other

agricultural produce in or under any building, or any ship or vessel'), the property of the said J. N., or of one E. N."], [or "threatening to kill (or 'maim' or 'wound') a horse of and belonging to him the said J. N."], he the said J. S. then well knowing the contents of the said letter, which said letter is as follows, that is to say [here set out the letter verbatim. R. v. Lloyd, 2 East, P. C. 1122 (ante, p. 75)]; against the form [as ante, p. 465]. (2nd Count.)-And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., on the day and in the year aforesaid, feloniously did utter a certain writing threatening to kill and murder [elc., as in the first count, substituting “writing" for "letter"]. The word "maliciously" inserted in the precedent in the 21st edition (p. 972) is not in 24 & 25 Vict. c. 97, s. 50, and has been omitted as unnecessary. It is, however, in 24 & 25 Vict. c. 100, s. 16, supra, and should be inserted in indictments under that section. As to the second count, see the observations immediately following the second count of the indictment, ante, p. 532. Where an indictment charged the prisoner in three several counts with three felonies in sending three separate threatening letters, Byles, J., compelled the prosecution to elect on which count they would proceed. R. v. Ward, 10 Cox, 42. Where the threat is obvious from the terms of the letter, no prefatory averments or innuendoes need be inserted. R. v. Boucher, 4 C. & P. 562.

Felony: penal servitude for not more than ten and not less than three years, or imprisonment not exceeding two years, with or without hard labour, and, if a male under sixteen years, with or without whipping. 24 & 25 Vict. c. 97, s. 50; c. 100, s. 16; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to requiring the offender to enter into recognizances and find sureties for keeping the peace, 24 & 25 Vict. c. 97, s. 73 (ante, p. 650); c. 100, s. 71 (ante, p. 778).

Evidence.

Prove that the defendant sent or delivered the letter to J. N. as directed, ante, p. 532.

Sending a letter to A. B. threatening to burn a house of which he was owner, but let by him to and occupied by a tenant, was held not to be an offence within 4 G. 4, c. 54 (rep.), the words of which were "his or their houses," etc. R. v. Burridge, 2 M. & Rob. 296; sed quære; see R. v. Grimwade, 1 Den. 30; 1 C. & K. 592. And now the threat to burn any house, barn, etc., etc., is sufficient to satisfy 24 & 25 Vict. c. 97, s. 50.

A material variance between the letter set out and that produced in evidence will be fatal, unless amended. (See ante, pp. 297, 302).

Where the threat charged is to kill or murder, it is for the jury to say whether the letter amounts to a threat to kill or murder. R. v. Girdwood, 2 East, P. C. 1120, 1121; 1 Leach, 142: R. v. Boucher, 4 C. & P. 562: R. v. Tyler, 1 Mood. C. C. 428.

66

Upon an indictment on 9 G. 1, c. 22 (rep.), the words of which were to burn the dwelling-house, outhouses," etc., where the writer of the letter threatened to burn the prosecutor's mill, and to do all the injury he was able to his farms, and the prosecutor proved that he had no mill at the time, but that he had farms, and buildings upon them: the judges held clearly that, as to the mill, the letter was not within the statute; and the majority of the judges held that, even as to the farms, as the letter did not necessarily imply that the injury to them was to be effected by fire, it was not within the Act. R. v. Jepson, 2 East, P. C. 1115. Neither would this threat as to the farms satisfy the term destroy" in the present statute. Compare the cases under 24 & 25 Vict. c. 96, s. 44 (ante, p. 532).

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SECT. 9.

DEFAMATORY LIBEL.

NOTE. For seditious libel, see ante, p. 986; for blasphemous libel, see ante, p. 1019; for libel affecting the administration of justice, see ante, p. 1094; for obscene libel, see post, p. 1190.

Statutes.

32 G. 3, c. 60 (Libel Act, 1792 (Fox's Act)), s. 1.]-Whereas doubts have arisen whether on the trial of an indictment or information for the making or publishing any libel, where an issue or issues are joined between the King and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the jury impannelled to try the same to give their verdict on the whole matter in issue: be it therefore declared and enacted, etc. that on every such trial the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information, and shall not be required or directed by the court or judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. [This Act is said to be declaratory of the common law. Capital and Counties Bank v. Henty, 5 C. P. D. 539, Brett, L.J. But it was passed in consequence of rulings to the effect that the question of libel or no libel was for the judge alone and not for the jury.]

Sect. 2.]-Provided always, that on every such trial the court or judge before whom such indictment or information shall be tried shall, according to their or his discretion, give their or his opinion and direction to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases.

Sect. 3.-Provided also, that nothing herein contained shall be construed to extend to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases.

Sect. 4.1-Provided also, that in case the jury shall find the defendant or defendants guilty it shall and may be lawful for the said defendant or defendants to move in arrest of judgment, on such ground and in such manner as by law he or they might have done before the passing of this Act, anything herein contained to the contrary notwithstanding.

6 & 7 Vict. c. 96 (Libel Act, 1843), s. 3-Publication or suppression of libel with intent to extort money, etc.]-Ante, p. 523.

Sect. 4-Punishment for knowingly publishing a false defamatory libel.] -If any person shall maliciously publish any defamatory libel, knowing the same to be false, every such person, being convicted thereof, shall be liable to be imprisoned in the common gaol or house of correction for any term not exceeding two years, and to pay such fine as the court shall award. [This section does not create or define a new offence, but merely prescribes the punishment for a common law offence. R. v. Munslow [1895] 1 Q. B. 758; 64 L. J. (M. C.) 138.]

Sect. 5-Punishment for defamatory libel.]—If any person shall maliciously publish any defamatory libel, every such person, being convicted thereof, shall be liable to fine or imprisonment, or both, as the court may award, such imprisonment not to exceed the term of one year. (See ante, pp. 238, 240). [See R. v. Mabin [1901] 20 N. Z. L. R. 451, discussing R. v. Munslow, ubi supra, and Boaler v. R., 21 Q. B. D. 284.]

Sect. 6-Plea of justification, etc.]—On the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published; and 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 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 matter 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 competent to the defendant also to plead a plea of not guilty:

Provided also, that nothing in this Act contained shall take away or prejudice any defence under the plea of not guilty, which it is now competent to the defendant to make under such plea to any action or indictment, or information for defamatory words or libel. [As to the law prior to this enactment, see notes to Wyatt v. Gore, Holt (N. P.), 299, at p. 306. Until s. 6 was passed, the plea of not guilty was the only plea in bar allowed, and it was held that the basis of the proceeding was the actual or possible injury to the public peace.]

Sect. 7-Evidence to rebut primâ facie case of publication by agent.]Whensoever, upon the trial of any indictment or information 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. [This section would seem not to be restricted to defamatory libel.]

Sect. 8-Costs.]-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 recover from the prosecutor the costs sustained by the said defendant by reason of such indictment or information; and upon a special plea of justification to such indictment or information, if the issue be found for the