Ivey v. State , 12 Ala. 276 ( 1847 )

ORMOND, J.

The statute upon which this indictment is founded, read’s thus : “ Every person who shall give, accept, or knowingly carry a challenge, in writing, or otherwise, to fight in single combat, with any deadly weapon, either in or out of the State, and be thereof convicted, shall be punishable by imprisonment in the penitentiary for two years.” — . [Clay’s Dig. 414, $ 11.]

Two objections are made to the indictment — that it is not alledged whether the challenge was to fight a duel, within this State, or beyond its limits — and that it is not alledg-ed who was the person challenged.

The offence denounced by the statute, is the giving, accepting, or knowingly carrying a challenge, to fight in single combat, with any deadly weapon, and the offence is complete when the challenge so to fight is given, accepted, or knowingly carried, whether the place where the rencounter is to take place, be designated or agreed upon, or not, or whether, if designated or agreed on, it is within or without the State. The place where the duel is to be fought, if agreed on, or designated by the challenger, is no part of the definition of the offence, and is only mentioned in the statute for the purpose of showing that it is not a constituent of the crime. It follows, that as it constitutes no part of the offence, it is not necessary it should be averred in the indictment, or proved on the trial.

The other objection is alike untenable. The allegation that the prisoner gave the prosecutor a challenge to fight in single combat, is precisely equivalent to an averment that he challenged him to fight, and is indeed the precise lam guage employed by the legislature in defining the offence.

The question upon the charge of the court, arises upon the sufficiency of the evidence to establish the allegation in the indictment, that the prisoner challenged the prosecutor to fight him in single combat, with a deadly weapon,'to wit, a pistol. The language of the act is, “ to fight in single combat, with any deadly weapon.” Whether such a challenge was given, as was charged in the indictment, was a question for the jury upon the evidence. No particular form of words is necessary, to constitute a challenge to fight a duel. The real intention is frequently, and indeed most usually understood by the parties, whilst the invitation, or “ demand of satisfaction,” is couched in general terms.

In this case, the intent of the prisoner was left to the jury, and they were in substance instructed, that if there was a challenge to fight with deadly weapons, given by the prisoner, to the prosecutor, in general terms, they might infer it was a challenge to fight with pistols. There can be no doubt of the propriety of this charge, under the evidence before the jury. The prisoner, it appears, told the prosecutor he had come to have a difficulty with him, that he would fight him in any way, and at any place, and shortly afterwards laying his hand on a pistol, told the prosecutor to prepare himself in half a minute. Certainly the jury were authorized to infer, that if this was an invitation to fight a duel, it was a challenge to fight with pistols, and is indeed much more precise, and specific, than such invitations usually are. This appears to have been the only question made upon the evidence, and the court instructed the jury, this inference was proper, if the other requisites necessary to constitute the offence were made out. The jury must therefore have ascertained from the proof, that, the intention of the prisoner was to challenge the prosecutor to fight him in single combat, with a deadly weapon, and that it was not the mere effusion of passion, or folly, or the idle boast of a braggart, not intended at the time to lead to any result, or to be understood by the other party as a challenge to fight a duel.

Let the judgment be affirmed.