liciously exposed its contents, or read or sang it in the presence of others; or, if it were a picture, or a sign, that he painted; or if it were done by any other symbol or parade, that he took part in it, for the purpose of exposing the plaintiff to contempt and ridicule. Evidence that a libel is in the defendant's handwriting is not, of itself, proof of a publication by him; but it is admissible evidence, from which, if not explained, publication may be inferred by the jury; the question of publication, where the facts are doubtful, being exclusively within their province."20 An admission of the defendant that he spoke to third persons the words complained of, is competent evidence of publication.21 But it has been held that admissions of a defendant, in a letter, as to publication of a libel, cannot be proved where the letter itself is not produced or its absence accounted for.22 And other libelous publications by the defendant against the same person are not admissible for the purpose of proving publication of the libel upon which the prosecution is based,23 although they may sometimes be competent for other purposes. So, where the defendant has pleaded the general issue and justification, it has been held that the plaintiff cannot use the latter plea as evidence of publication on the issue joined under the former plea.24 But evidence that the defendant had paid the printer or publisher of a newspaper for the insertion of libelous matter has been held admissible as tending to show that the defendant wrote or adopted it.25

§ 2451. Malice.-It is said that where one publishes a libel or slander he is presumed to have intended an injury,26 and malice in law is presumed from the publication of libelous or slanderous

20 2 Greenleaf Ev., § 415; see also, Bond v. Douglas, 7 Car. & P. 626; Reg. v. Lovett, 9 Car. & P. 462; Aspell v. Smith, 134 Pa. St. 59, 19 Atl. 484; McCoombs v. Tuttle, 5 Blackf. (Ind.) 431; Swindle V. State, 2 Yerg. (Tenn.) 581, 24 Am. Dec. 515, postmark as evidence; Shipley v. Todhunter, 7 Car. & P. 680, 32 E. C. L. 685; telegram: Monson v. Lathrop, 96 Wis. 386, 71 N. W. 596.

21 Witcher v. Richmond, 8 Humph. (Tenn.) 473; Carpenter v. Willey, 65 Vt. 168, 26 Atl. 488; Wischstadt

v. Wischstadt, 47 Minn. 358, 50 N. W. 225.

22 Simpson v. Wiley, 4 Port. (Ala.) 215.

23 State v. Riggs, 39 Conn. 498. 24 Wheeler V. Robb, 1 Blackf. (Ind.) 330, 12 Am. Dec. 245; Rickert v. Stanley, 6 Blackf. (Ind.) 169; Whitaker v. Freeman, 1 Dev. L. (N. Car.) 271.

25 Schenck v. Schenck, 20 N. J. L. 208.

20 Haire v. Wilson, 9 Barn. & C. 643; King v. Harvey, 3 D. & R. 464.

words.27 It need not, therefore, be proved in order to recover compensatory damages. But in cases of qualified privilege, express malice must usually be proved,28 and where exemplary or primitive damages are sought evidence upon the subject of malice is usually competent and very material.

§ 2452. Evidence as to malice.-"Subject to the general rules of evidence as to admissibility, competency, and relevancy," it is said, "either party to an action or prosecution for libel or slander may, for the purpose of proving or disproving malice, introduce in evidence whatever tends to throw light upon the motive of the defendant in publishing or uttering the defamatory words."30 Thus, evidence of the republication of other slanderous words, published by the defendant concerning the plaintiff about the same time or even at other times and places is often admissible to show malice, or in aggravation of damages,31 although in some jurisdictions this rule is confined

34

to the republication of the same slanderous words or at least to such as relate to the same subject.32 Other proper evidence is also admissible. Threats by the defendant against the plaintiff have been held admissible,3 33 and the same has been held as to evidence of the defendant's refusal to retract or apologize. It is also generally held, although the rule has been changed by statute or decisions in some jurisdictions, that not only the circumstances immediately attending the uttering of the words, but likewise of the relations of the parties prior to and at that time tending to show the state of feeling at that time and thus bearing upon the question of malice.35 So, evidence of a plea of justification asserting the truth if unsustained by the evidence, and especially if interposed in bad faith, is itself evidence of malice on the part of the defendant.36 On the other hand, the defendant may show in mitigation and as tending to rebut actual malice that he had probable cause for making the charge and believed it to be true.37 It has

710; Chamberlin v. Vance, 51 Cal. 75; Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489; Eldridge v. State, 27 Fla. 162; Vol. I, § 164, n. 102.

32 See, Commonwealth v. Damon, 136 Mass. 441; Parmer v. Anderson, 33 Ala. 78; Thompson v. Powning, 16 Nev. 195; Howard v. Sexton, 4 N. Y. 157; Cassidy v. Brooklyn Eagle, 138 N. Y. 239, 33 N. E. 1083; Russell v. Farrell, 102 Tenn. 248, 52 S. W. 146; Jacobs v. Cater, 87 Minn. 448, 92 N. W. 397.

33 Harris v. Zanone, 93 Cal. 59, 28 Pac. 845; Beals v. Thompson, 149 Mass. 405, 21 N. E. 959; Wright v. Gregory, 9 App. Div. (N. Y.) 85; but see, Scougale v. Sweet, 124 Mich. 311, 82 N. W. 1061.

"Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624; Klewin v. Bauman, 53 Wis. 244, 10 N. W. 398; Wallace v. Jameson, 179 Pa. St. 98, 36 Atl. 142; see also, Vol. I, § 164.

35 Provost v. Brueck, 110 Mich. 136, 67 N. W. 1114; Simons v. Burnham, 102 Mich. 189, 60 N. W. 476; Ransom v. McCurley, 140 Ill. 626, 31 N. E. 119; Atwater v. Morning News

Co., 67 Conn. 504, 34 Atl. 865; Hubbard v. Rutledge, 57 Miss. 7; Morgan v. Livingston, 2 Rich. L. (S. Car.) 573; see also, Hintz v. Graupner, 138 Ill. 158, 27 N. E. 935; but compare, Stowell v. Beagle, 57 Ill. 97; York v. Pease, 2 Gray (Mass.) 282; Barr v. Hack, 46 Iowa 308; Justice v. Kirlin, 17 Ind. 588; Krug v. Pitass, 162 N. Y. 154, 56 N. E. 526, 76 Am. St. 317.

36 Sun Pub. &c. Co. v. Scheuck, 98 Fed. 925, 928, and authorities cited; Jackson v. Stetson, 15 Mass. 48; Robbins v. Fletcher, 101 Mass. 115; Finch v. Finch, 21 S. Car. 342; Richardson v. Roberts, 23 Ga. 215; Shartle v. Hutchinson, 3 Ore. 337; Updegrove v. Zimmerman, 13 Pa. St. 619; Downing v. Brown, 3 Colo. 571; Wilson v. Robinson, L. R. 7 Q. B. 68, 53 E. C. L. 68; Rutherford v. Paddock, 180 Mass. 289, 62 N. E. 381, 91 Am. St. 282, note on 302, where the authorities are reviewed; and Coffin v. Brown, 94 Md. 190, 50 Atl. 567, 55 L. R. A. 732, and note.

37 Arnott v. Standard Asso., 57 Conn. 86, 17 Atl. 361; Williams v.

also been held that he may show that the words were provoked by the plaintiff and spoken in the heat of passion.38 But circumstances of which the defendant had no knowledge at the time of the publication of the libel or slander are usually inadmissible either to prove or disprove malice.3

§ 2453. Privilege.-The burden has been held to be upon the defendant to show that the publication, at least where it depends upon extrinsic facts, is within the class of cases in which there is a qualified privilege. But where this appears upon its face it is said that the burden is upon the plaintiff to show that it was false and that it was prompted by actual malice.1 And as a general rule any proper evidence tending to prove or disprove any of these facts is admissible. Thus, the plaintiff may introduce proper evidence to show actual malice, including the falsity of the charge, and that the defendant knew

it or acted recklessly from bad motives.2 So, on the other hand, the defendant may introduce evidence to show that he acted on probable cause without malice, and that the alleged libel was a bona fide comment on facts of public interest or the occasion otherwise a privileged one. 43

44

§ 2454. Best evidence-Extrinsic evidence.-In an action for libel the publication itself is the best evidence of the charges made in it, and the original document containing the defamatory matter must generally be produced;45 but where the original has been destroyed or lost and cannot be found, or is in the hands of an adverse party who refuses to produce it, secondary evidence of the contents is admissible upon laying the proper foundation therefor. So, copies of newspapers, all printed at the same time from the same type, are primary evidence in libel cases. It is competent, as a general rule, in an action of slander, to show all the facts and circumstances at

46

42 See, Harris v. Zanone, 93 Cal. see also, Strader v. Snyder, 67 Ill. 59, 28 Pac. 845; Behee v. Missouri

Pac. R. Co., 71 Tex. 424, 9 S. W. 449; Smith v. Smith, 73 Mich. 445, 41 N. W. 499, 16 Am. St. 594; Laing v. Nelson, 40 Neb. 252, 58 N. W. 846; Conroy v. Pittsburgh &c. T. Co., 139 Pa. St. 334, 21 Atl. 154, 23 Am. St. 188; Cooke v. Wildes, 1 Jur. N. S. 610, 5 El. & Bl. 329, 85 E. C. L. 329; Blagg v. Sturt, L. R. 10 Q. B. 899, 59 E. C. L. 899; Kelly v. Partington, 2 N. & M. 460, 4 B. & Ad. 700, 24 E. C. L. 144.

43 McAllister v. Detroit Free Press Co., 76 Mich. 338, 15 Am. St. 353369, and authorities cited in notes to section on evidence as to malice; see Odgers Lib. & S. 575.

404.

Rainy v. Bravo, L. R. 4 P. C. 287, 20 W. R. 873, 27 L. T. N. S. 249; Gathercole v. Miall, 15 M. & W. 319; Rex v. Aickles, 1 Leach 438; Reg. v. Llanfaethly, 2 El. & Bl. 940, 75 E. C. L. 940; Boyle v. Wiseman, 11 Exch. 360; Newton v. Chaplin, 10 C. B. 356,-70 E. C. L. 356; AttorneyGeneral v. Le Merchant, 2 Term R. 201, note a; Fryer v. Gathercole, 4 Exch. 262; Weir v. Hoss, 6 Ala. 881; Strader v. Snyder, 67 Ill. 404; Winter v. Donovan, 8 Gill (Md.) 370; Carpenter v. Bailey, 56 N. H. 283; Behee v. Missouri Pac. R. Co., 71 Tex. 424, 9 S. W. 449; Cranfill v. Hayden, 22 Tex. Civ. App. 656, 55 S.

"Schultze v. Jalonick, 18 Tex. W. 805; Gates v. Bowker, 18 Vt. 23. Civ. App. 296, 44 S. W. 580.

45 Wright v. Woodgate, 2 C. M. & R. 573; Gilpin v. Fowler, 9 Exch. 615, 22 L. J. Exch. 156; Ret v. Rosenstein, 2 Car. & P. 414; Fryer v. Gathercole, 4 Exch. 262; Adams v. Kelly, R. & M. 157, 21 E. C. L. 722;

47 Duke of Brunswick v. Harmer, 11 Ad. & E. 185, 68 E. C. L. 185; see also, State v. McKee, 73 Conn. 18, 46 Atl. 409, 49 L. R. A. 542; Vol. I, §§ 322, 323; Fry v. Bennett, 4 Duer (N. Y.) 247; Rex v. Watson, 2 Stark. 104, 129; Cooke v. O'Malley, 109 La. Ann. 382, 33 So. 377.