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PART IV.

it might have been supported; but Lord Mansfield and CHAPTER XI. Buller, J., gave no opinion upon the point. (a) So, in Rer v. Topham, (b) after verdict of guilty on an indictment for a libel on a dead man, judgment was arrested for want of an allegation that the libel was published with a design to bring contempt on the family of the deceased, and to stir up the hatred of the King's subjects against them, and to excite his relations to a breach of the peace.

When motion in

ment must be made

Where an indictment or information contains several counts, if any one of them is good the judgment will stand. (c)

The defendant must move before sentence, and if the arrest of judg- indictment or information be not in the Queen's Bench, the motion must be made after verdict, at the Assizes; and the judge may, under 11 & 12 Vict. c. 78, reserve the point for the consideration of the Court of Crown Cases Reserved.

Arrest of judg-
ment by
court itself.

Effect of arrest of judgment.

Motion for new trial.

Grounds on which new trial granted.

Although the defendant do not move, the court will of itself arrest the judgment, if it appear that the defendant has not been found guilty of any offence at law. (d)

The arrest of judgment sets aside all the proceedings, but is no bar to a fresh indictment.(e)

When the information or indictment originated in the Court of Queen's Bench, or has been removed there by certiorari, the defendant may move for a new trial within the first four days of the next term.(ƒ) If the motion cannot be made within those days, an intimation must be given, on one of them, that counsel is prepared to make the motion.(g)

The defendants must be present in court when the motion is made, even though the counsel for the prosecution consent to their absence. (h)

A new trial may be granted for misdirection, or the wrongful reception or rejection of evidence, or on the ground that the verdict was contrary to evidence, or on the ground of surprise, (i) or the misbehaviour of the jury.(k) Where evidence, inadmissible for the purpose for which it

(a) 21 St. Tr. 1043.

(b) 4 T. R. 126, cited ante, p. 420.

(c) Rex v. Benfield and others (2 Burr. 980, 985).
(d) Rex. v. Waddington (1 East, 146).

(e) 4 Rep. 45. Reg. v. Larkin (23 L. J. 126, M. C.; Dears, C. C. 365).
(f) Rex v. Holt (5 T. R. 436).

(g) Reg. v. Newman (1 Ell. & Bl. 270).

(h) Rex v. Askew (3 M. & S. 9); Rex v. Fielder (2 D. & R. 46). (i) Reg. v. Whitehouse and another (Dears. C. C. 1). See Reg. V. Richardson (8 Dow. 511).

(k) Reg. v. Fowler (4 B. & Ald. 273); see Hawkins P. C., Bk. 2, ch. 47, s. 12.

is tendered, but admissible for another purpose not alluded to at the trial, has been rejected, the court will not grant a new trial on the ground of an improper rejection of evidence. (a)

PART IV.

CHAPTER XI.

Where the verdict is imperfect, so that judgment cannot Venire de novo. be given upon it, the court will award a venire de novo.

Thus, in the case of Rex v. Woodfall, where the jury returned a verdict of "guilty of the printing and publishing only," the court awarded a venire de novo, because it was impossible to say what the jury meant by the word "only."(b)

Should the defendant fail to have the verdict set aside by Judgment any of the above means, he will be brought up for judgment.

Where the case is not in the Court of Queen's Bench, the sentence will be passed as in other cases of misdemeanor tried at the assizes; and, of course, the defendant may urge any topic in mitigation which would be available in the Queen's Bench, and support it by witnesses or affidavits. We shall, therefore, pass on to the practice of the Court of Queen's Bench.

The rule of procedure laid down by Lord Kenyon, in Rex v. Bunts, (c) appears to be still in force, viz., that "When any defendant shall be brought up for sentence on any indictment or information after verdict, the affidavits produced on the part of the defendant, if any such be produced, shall be first read, and then any affidavits produced on the part of the prosecution shall be read; after which the counsel for the defendant shall be heard; and, lastly, the counsel for the prosecution. And when any defendant shall be brought up for sentence after judgment by default, the prosecutor's affidavits shall be first read, then the defendant's affidavits; after which the counsel for the prosecution shall be heard; and, lastly, the counsel for the defendants. If no affidavits should be produced, the counsel for the defendants shall be first heard, and then the counsel for the prosecution."(d)

"It is not the practice in general to give the defendant an opportunity of answering at a future time the affidavits produced by the prosecutor. . . . . When a defendant is brought up for judgment, the only object which the court have in view is to discover the real truth of the transaction; and it is much more probable that that object will be

(c) 2 T. R. 683.

(a) Rex v. Grant (3 Nev. & Man. 106). (b) Rex v. Woodfall (5 Burr. 2661). (d) The affidavits to be used on either side should be entitled "In the Queen's Bench, The Queen against S.S."

PART IV.

attained by the practice which has hitherto prevailed, which CHAPTER XI. requires that each party should come prepared to disclose all the circumstances of his case, than by a contrary practice, which would prove a source of infinite perjury. In the case of Rex v. Archer, (a) where the prosecutor produced affidavits, in aggravation, to show a continuance of the defendant's malice, by expressions used subsequent to the time of the indictment, the court thought it reasonable to allow the defendant an opportunity of answering those affidavits, because it could not be supposed that he could come prepared to answer that which was not contained in the indictment."(b)

Affidavits in mitigation of punishment.

The defendant was allowed, even so far back as 1774, to urge in mitigation that he was absent when the paper was published, and that on reading a copy he was much hurt with the contents, and immediately forbade the sale and refused to let anybody see it. In consideration of these circumstances the defendant escaped with the (for those times) very light sentence of 100l. fine and one month's imprisonment. (c)

Hone was allowed, on his trial at the Guildhall, to give evidence, in order to avoid the expense of an affidavit, that he had stopped the sale of the libellous work. (d)

Sir Francis Burdett was allowed, in mitigation of punishment, to put in an affidavit that he read statements in the newspapers which induced him to publish the libel; but affidavits that those statements were founded on truth were refused.(e)

And the court will receive affidavits stating that, at the time of publication, the defendant believed the charges to be true, and setting forth reasonable grounds for such belief.(ƒ)

In the late case of Reg. v. Shimmin (not reported), affidavits from numerous inhabitants of Liverpool to the effect that the defendant's paper had always been well conducted, and had been the means of bringing about sanitary and other reforms in the town, were received. A memorial, not sworn, to the same effect was mentioned, but not allowed to be read.

Where defendant pleaded a justification under Lord Campbell's Act, an affidavit deposing that before and at the time of publication, and at the time of pleading, he (a) 2 T. R. 203, in notis.

(b) Per Curiam, Rex v. Wilson (4 T. R. 487).

(c) Rex v. Williams (Loft. 759).

(d) See 3 Burns' Justice, 350 (13th edition).

(e) 4 B. & Ald. 321. See also Rex v. Halpin (9 B. & C. 66), and Rex v. Bradley (2 Man. & Ry. 152). (f) Rex v. Halpin, ubi supra.

PART IV.

believed the truth of the charges contained in the libel and plea, and that before the pleading he had received from CHAPTER XI. Viterbo, in Italy, an affidavit made by a person named in the plea of justification, to the effect that she had been seduced by the prosecutor under the circumstances mentioned in the libel, was admitted to show why the plea was pleaded. "This part of the affidavit," said Lord Campbell, C.J., "is clearly admissible under the statute, to show why this part of the plea was placed on the record; the fact of the plea being one to be considered by the court in apportioning the punishment." (a) But an affidavit which was rejected at the trial, for want of authentication by the place of custody or otherwise, was held inadmissible in confirmation of defendant's own affidavit that such a document was communicated to him before plea pleaded. (b)

punishment.

In aggravation, the prosecutor may produce affidavits Amdavits in showing that defendant, after the trial, has published other aggravation of libels, or otherwise misconducted himself; but the defendant will be allowed time to answer such affidavits.(c)

In the case of Rex v. Archer (d) the court received affidavits of expressions made use of by defendant, confirming and aggravating his guilt, which had been uttered in the hearing of two persons, and by them afterwards related to the persons making the affidavits, the prosecutor swearing to an application to those persons to come forward with their testimony, which they had refused; and it was strongly insinuated that they were under the influence of the defendant. The court considered that they were under the influence of the defendant, but allowed them and the defendant an opportunity of answering such affidavits.

Affidavits of this kind will not be received unless they show that the persons to whom the libel was repeated, and who refuse to join in the affidavits, are under the control or influence of the defendant.(e)

Where the defendant, editor of a newspaper, pleaded guilty to an indictment for libel, on condition of being discharged on entering into his own recognisance to appear and receive judgment when called upon, and of not being called upon at all if he discontinued the publication of libels on the prosecutor, the court refused to pass judgment unless the prosecutor produced an affidavit stating that the defendant had, since the trial, published libels respecting him.(ƒ)

(a) Reg. v. Newman (1 E. & B. 581, 582. Vide ante, p. 527).
(b) lb.
(c) Rex v. Withers (3`T. R. 432); Rex. v. Archer (2 T. R. 203, in notis).
(d) Ubi supra.
(e) Rex v. Pinkerton (2 East. 357).

(f) Reg v. Richardson (8 Dow. 511).

PART IV.

Punishment.

The court has, at common law, absolute discretion as to CHAPTER XI. the amount of punishment which it will inflict upon the defendant. (a) This may consist of fine, imprisonment, and even, it would appear, corporal punishment, (b) together with sureties for good behaviour for such period as the court may deem fit. (c)

Security for

good behaviour.

Term of imprisonment.

Seizure of copies

of blasphemous or seditious libels.

The right of the court to adjudge a misdemeanant to give security for his good behaviour, after the expiration of his imprisonment, was discussed before the House of Lords, on a writ of error, in 1810; and the question was put to the judges-Whether, by law, the Court of King's Bench can adjudge a person convicted of misdemeanor to give security for his good behaviour for a reasonable time, to be computed from and after the expiration of his imprisonment, himself in a sum named in such judgment, with two sufficient sureties each in a sum therein also mentioned? The unanimous opinion of the judges was in the affirmative. (d)

The question answered by the judges, it will be observed, was as to the power of adjudging security to be given for a reasonable time; but, nine years later, the court sentenced Carlile, for two blasphemous libels, to pay a fine of 1500l., to be imprisoned for three years, and to find sureties for good behaviour for the term of his life.(e)

Lord Campbell's Act(f) limits the time of imprisonment for the publication of a defamatory libel to one year, except where the defendant published it, knowing it to be false, in which case double the length of imprisonment may be given.

In case of verdict, or judgment by default, against any person for composing, printing, or publishing any blasphemous or seditious libel, the court may make an order for the seizure, carrying away, and detaining in safe custody, all copies of the libel which shall be in the possession of the defendant, or in the possession of any other person named in the order for his use; evidence upon oath having been previously given, to the satisfaction of the court or judge,

(a) As to amendment of the sentence and the record as to it, see Gregory v. The Queen (15 Q. B. 970), and O'Connell v. The Queen (11 Cl. & Fin. 155). (b) See Bac. Abr. tit. "Libel."

(c) It is true that corporal punishment has not been made part of the sentence in modern times; but there is no statute abolishing it as a common law punishment, save as regards women, although it is popularly thought to be abrogated.

(d) Rex v. Hart and White (30 How. St. Tr. 1344; 47 H. of L. Journals, p. 271.

(e) 3 B. & Ald. 167; sed vide Prickett v. Gratrex (8 Q. B. 1029, 1030). (f) 6 & 7 Vict. c. 96, ss. 4 and 5.

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