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Hence a series of statutes have been passed, assigning specific and graduated punishments to those sending challenges, and those con. cerned in arranging or abetting duels. It is with these statutes we have at present to do, touching only on certain generic features which are common to all.

$1770. We must distinguish between the duel and the rencontre, which is a sudden fight, springing up when the parties are in hot blood, and when there is no time to cool be. The comtween the provocation and the summons to fight and the be premedifight itself. Hence the statutes against challenges, con . strued strictly, do not apply to fights demanded in hot blood by a party or his friends. Such demands are governed by the rules of the common law, as defined in riotous homicide, or homicide in sudden quarrels. And if no physical injuries ensue, the partici. pants are indictable for affrays or attempts.

§ 1771. Challenges to fight with weapons not deadly, e. g., with fists, do not come under the duelling statutes, though indictable at common law as attempts, or as breaches of Deadly the public peace ;' and so where a challenge is intended must be as a joke, or where the weapons to be used are intended by the challenging party to be harmless, and are so known to the other parties. Yet if the principals intend to use deadly weapons, it is no defence that the pistols are by a subsequent trick of the seconds, unknown to the principals, loaded only with blank cartridges. But it is not requisite, to constitute the offence, that any special weapons should be used. Hence under this head may be classed what a German expositor styles the “ Amerikanische Duell," i. e., a drawing lots as to which of two parties shall die, as a satisfaction to the wounded honor of one of them.

So far as concerns the challenge, it is no matter in what terms it is couched. If it be an invitation to fight with deadly weapons, the case is covered by the statute, no matter how artful may be the disguise.

intended.

Supra, $$ 396, 455. 2 Com. v. Whitehead, 2 Bost. Law Rep. 148 ; State v. Farrier, 1 Hawks, 487; State v. Taylor, 3 Brev. 243. See Aulger v. People, 34 Ill. 486 ; Com. v. Tibbs, 1 Dana, 524.

3 Com. v. Hart, 6 J. J. Marsh. 119.
• See supra, $$ 173 et seq.
6 Holzendorff's Encyc. ii. 721.

6 Infra, § 1777 ; State v. Perkins, 6 Blackf. 20; Com. v. Hart, 6 J. J. Marsh. 119; Com. v. Tibbs, 1 Dana, 524; Com.

$ 1772. Suppose, in a foundering boat, a passenger proposes that

lots should be drawn as to who should be cast overboard, Challenge in order to lighten the boat? This would not be a must be for satisfaction challenge under the duelling statutes, and it might be to honor.

claimed to be excusable at common law. But the term “honor," even when used in statutes, must not be construed too scantily. Wherever one man, except under legal necessity, chal. lenges another to single combat with deadly weapons, to redress any injury, real or fancied, to self, there the case is met.

$ 1773. A duellist, desiring himself to escape the penalties of Persons the statutes, who succeeds by skilful insults in provoking provoking another to challenge him, may be responsible at common challenge

law. It would be a gross injustice in such a case to punish the challenger, who is really the assailed party,

and to let the challenged party, who is really the assailant, go free. Under the statutes, the latter may not be reached ;? but the common law here, as elsewhere, penetrates to the merits, and holds that he who thus designedly provokes a challenge is guilty of an indictable offence.

are indictable at common law.

v. Pope, 3 Ibid. 418; State v. Farrier, as those who knowingly carry, them. 1 Hawks, 487; State v. Taylor, 3 Brev. Upon the same principle, employing 243; Herriott v. State, 1 McMull. 126; words or writings for the purpose of Ivey v. State, 12 Ala. 276.

provoking another to send a challenge, I Supra, § 95.

where the tendency is direct and mani% Com. v. Tibbs, 1 Dana, 524. fest, is equally indictable, even though

3 Supra, § 179 ; 1 Gabbett Crim. Law, the provocation should fail in its ob66 ; 1 Hawk. P. C. ss. 18, 19;'1 Dea- ject. And no previous misconduct on con Crim. Law, 219; Booth by Crim. the part of the individual challenged Law (ed. 1854), 60. See R. v. Rice, 3 or provoked will form a defence against East, 581 ; R. v. Phillips, 6 Ibid. 464; such indictinent, so as to entitle the R. v. Cuddy, 1 C. & K. 210; R. v. defendant to an acquittal, although it Young, 8 C. & P. 644; State v. Farrier, will weigh with the court in determin1 Hawks. 487; State v. Taylor, 1 Const. ing the sentence. Where, indeed, a Rep. 107; 3 Brev. 243. That all con. party challenged applies to the Court cerned are liable, see cases just cited, of Queen's Bench for a criminal inforand see Com. v. Lambert, 9 Leigh. 603; mation, that extraordinary remedy will Cullen v. Com., 24 Grat. 624.

not be granted, if he shall appear to “Challenges to break the peace by have given provocation to his adverfighting,” says Mr. Talfourd, in his sary, but he will be left to indict at the edition of Dickinson's Quarter Ses- assizes or session. The punishment, sions (p. 325), “ are indictable as mis on conviction, is fine or imprisonment, demeanors, as well in those who send, or both, at the discretion of the court."

No defence

§ 1774. Where a challenge is given in one State to fight a duel in another State, the offence of challenging is continuous, and may be tried in either jurisdiction ;' though if the that duel is challenge be in writing, it may be expedient, in the trouben jurisdiction of consummation, to charge the offence as an tra-territo

rially, oral renewal. Clearly a challenge to fight in another State is penally cognizable in the State in which the challenge is issued. Nor is it necessary to prove that the challenge ever reached its destination.

$ 1774 a. All who are concerned in a duel are respon- All consible under the limitations heretofore stated as applying cerned are

responsito principal and accessary.

ble.

II. INDICTMENT.

$ 1775. A written letter, if merely the inducement or introduc. tion to an oral communication, conveying a challenge,

Challenge need not be set forth. Thus where T., in a letter to N., need not be used expressions implying a challenge, and by a post- peaded script referred N., the challenged party, to one H. (the bearer of the letter), if any further arrangements were necessary, it was held that the letter was only evidence of the challenge, and need not be specially pleaded ; and that N. might give testimony of the conversation between H., the bearer of the letter, and him. self. Even when a statute makes sending a challenge indictable, it has been held not necessary to set out a copy of the challenge ;0 and if an attempt be made to set out in the indictment a copy, and it varies slightly from the original, as by the addition or omission of a letter, no way altering the sense, it has been said that such variance after verdict is cured. To set forth the substance, when the challenge is partly oral, is enough.8

" See supra, § 288.

Leigh, 603. As to surgeons, see Cullen 2 R. v. Williams, 2 Camp. 506 ; State v. Com., 24 Grat. 624. v. Taylor, 3 Brev. 243; 1 Tr. Const. S State v. Taylor, ut supra. Rep. 107; Harris v. State, 58 Ga. 332; 6 Brown v. Com., 2 Va. Cas. 516. State v. Farrier, 1 Hawks, 487. See i State v. Farrier, 1 Hawks, 487. Ivey v. State, 12 Ala. 276.

See Heffren v. Com., 4 Met. (Ky.) 5; 8 R. v. Williams, supra.

Ivey v. State, 12 Ala. 276; Com. v. • Supra, $215, 482; R. v. Taylor, Tibbs, 1 Dana, 524. L. R. 2 C. C. 147; Com. v. Lambert, 9 8 Ivey v. State, 12 Ala. 276.

Statute must be

$ 1776. Where a statute makes it a misdemeanor to challenge

another, the indictment must charge that the defendant

challenged; it is not enough that he wrote, sent, and followed.

offered a paper he intended as a challenge. Expressing a readiness to accept a challenge does not amount to challenging under the statute.

III. EVIDENCE.

may be inferred from facts.

§ 1777. No set phrase is necessary to constitute a challenge to

fight with deadly weapons,» nor is a writing necessary. Challenge

The note or letter sent by one party to the other, and parol testimony in explanation, are admissible as evi

dence.5 The jury is to decide, under advice of the court, whether, from all the circuinstances, there has been a challenge within the statute.

§ 1778. Concert being proved, it need scarcely be Admissions

added that the admissions of a second are evidence against the principal; and vice versa.?

of seconds are evi. dence.

pra, § 1775.

I State v. Gibbons, 1 South, 40. or further setting out the defendant's 2 Com. v. Tibbs, 1 Dana, 524.

acts. Com. v. Welsh, 7 Gray, 324. An indictment under the Massachu 3 See for cases supra, 1771. setts Stat. 1849, c. 49, § 1, is sufficient, • State v. Perkins, 6 Blackf. 20. Suwhich alleges that the defendant, at a time and place named, “by and in 5 Supra, § 1775; R. v. England, 2 pursuance of a previous appointment Leach, 767. and arrangement made to meet and 6 Com. v. Hart, 6 J. J. Marsh, 119; engage in a fight with another person, State v. Strickland, 2 N. & McC. 181 ; to wit, with one J. S., did meet and Herriott v. State, 1 McMull. 126; Gorengage in a fight with the said J. S.," don v. State, 4 Mo. 375. without further charging what previ State v. Dupont, 2 McCord, 334; ous appointment or arrangement was Whart. Crim. Ev. § 698. made, or when or where, or by whom,

560

PART IV.

OFFENCES AGAINST GOVERNMENT.

CHAPTER XXXVII.

TREASON.

I. TREASON AGAINST THE UNITED

STATES.
CONSTITUTION AND STATUTES,

§ 1782.
Constitutional and statutory defi-

nition of treason, $ 1782.
Punishment, $ 1783.
Misprision, $ 1784.
Seditious conspiracy, g 1785.
Enlisting persons to serve against

U. S., § 1786.
Offence of persons so enlisted, s

1787.
Aiding in rebellion, $ 1788.
Corresponding with foreign gov.

ernment, g 1789. JUDICIAL RULINGS. Treason consists in levying war or i

in adhering to enemies, $ 1790. 1. Levying War. Term to be accepted in its prior

judicial meaning, $ 1791. All concerned in levying war are

principals, $ 1792. But there must be an overt act of

war, g 1793. Number engaged is not material,

$ 1794. Direct levying of war is attack on

government forces or ports, s

1795. Constructive is where it is intended

to effect change in government

by force, $ 1796. But war to effect private ends is not treason, $ 1797. VOL. II.-36

Not necessary to treason that a

battle should be fought, $ 1798. Belligerent insurgents are not in

dictable for treason, $ 1799. Belligerent rights do not protect

illegitimate warfare, $ 1800. 2. Adhering to Enemies of the United

States.
This clause does not cover aid or

sympathy given to a rebellion,

$ 1801. Otherwise as to aid given to hostile

foreign State, $ 1802. Obedience to de facto government

is a defence, § 1803. So of coercion, $ 1803 a. Home government may punish sub

jects for political offences abroad,

$ 1804. And so for intra-territorial offences

by aliens, § 1805. 3. Indictment. Overt acts must be laid in indict..

ment, $ 1806. 4. Evidence. Confederacy must be proved, g.

1807. Must be two witnesses to one overt

act, $ 1808. Confessions admissible as corrobo-.

rations, $ 1809. Place of overt act has jurisdiction,

§ 1810. No defence that defendant be

lieved he was exercising a right, $ 1811.

561

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