CHAPTER XI. CHALLENGING TO FIGHT.(a) (1028) Sending a challenge, at common law. First count, sending the letter containing the challenge. (1029) Second count. Provoking another to fight a duel. (1030) Provoking a man to send a challenge. (1031) Writing and delivering a challenge at the instance of a third person. Second count. For delivering a written challenge as from (1032) (1033) and on the part and by the desire of E. F. Third count. For provoking and inciting the prosecutor to fight. (1034) For a verbal challenge. (1035) Giving a challenge in the presence of a justice of the peace. (1036) For sending a challenge, in Pennsylvania. (1037) Accepting a challenge. (1038) Engaging in a duel, under Ohio statute. (1039) Being second in a duel, under Ohio statute. (1040) Against a second for carrying a challenge, under the South Carolina (1041) statute. Second count. Omitting to set out letter. (1042) For being a second in a duel. (1043) Sending a written message to a person to fight a duel. Rev. Sts. of Mass. ch. 125, § 6. (1044) Posting another for not fighting a duel. Rev. Sts. of Mass. ch. 125, § 8. (1045) Challenging and posting, at common law. (1028) Sending a challenge, at common law. First count, sending the letter containing the challenge.(b) That J. S., late, etc., gentleman, being a person of turbulent and quarrelsome temper and disposition, and contriving and intending not only to vex, injure, and disquiet one J. N. and do the said J. N. some grievous bodily harm, but also to provoke, instigate, and excite the said J. N. to break the peace, and to fight a (a) See Wh. Cr. L. 8th ed. § 1768. duel with and against him the said J. S., on, etc., at, etc., wickedly, wilfully, and maliciously did write, send, and deliver, and cause and procure to be written, sent, and delivered unto him, the said J. N., a certain letter and paper writing containing a challenge to fight a duel with and against him the said J. S., and which said letter and paper writing is as follows, that is to say (here set out the letter with such innuendoes as may be necessary),(c) to the great damage, scandal, and disgrace of the said J. N., in contempt of our lady the queen, and against, etc. (Conclude as in book 1, chapter 3.) (1029) Second count. Provoking another to fight a duel. That the said J. S., contriving and intending as aforesaid, afterwards, to wit, on, etc., with force and arms, at, etc.,* wickedly 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, scandal, and disgrace of the said J. N., in contempt, etc., and against, etc. (Conclude as in book 1, chapter 3.) (1030) Provoking a man to send a challenge.(d) (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 (c) A written letter, if merely the inducement or introduction to an oral communication, conveying a challenge, need not be set forth. Thus, where T., in a letter to N., used expressions implying a challenge, and by a postscript 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 himself. State r. Taylor, 3 Brev. 243. Even when a statute makes sending a challenge indictable, it has been held not necessary to set out a copy of the challenge. Brown v. Com., 2 Va. Cas. 516; State v. Farrier, 1 Hawks, 487. 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 meaning, this is cured by verdict. See Heffren v. Com., 4 Metc. (Ky.) 5; Ivey v. State, 12 Ala. 276. The substance is enough to set forth. Ivey v. State, 12 Ala. 276; see Com. v. Tibbs, 1 Dana, 524. (d) Arch. C. P. 5th Am. ed. 715. challenge him the said J. S. to fight a duel with and against him the said J. N., to the great damage, etc. (as in the last precedent but one). (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.) (1031) Writing and delivering a challenge at the instance of a third person.(e) That A. B., late of, etc., esquire, on, etc., at, etc., being of a turbulent, wicked, and malicious disposition, and intending to procure great bodily harm and mischief to be done to C. D., late of, etc., in the county aforesaid, esquire, and also intending, as much as in him the said A. B. lay, to incite and provoke the said C. D. unlawfully to fight a duel with and against one E. F., late, etc., on, etc., with force and arms, at, etc., did unlawfully, wickedly, and maliciously write, and cause to be written, a certain paper writing, in the words, letters, and figures following, to wit (here set out the paper writing with the proper innuendoes), which said paper writing (meaning and intending the same as such challenge as aforesaid), he, the said A. B., afterwards, to wit, on, etc., at, etc., unlawfully, wickedly, and maliciously, did deliver, and cause to be delivered, to the said C. D., against, etc. (Conclude as in book 1, chapter 3.) (1032) Second count. For delivering a written challenge as from and on the part and by the desire of E. F.(ƒ) That the said A. B., being such evil disposed person and disturber of the peace of our said lord the king, as aforesaid, and intending to procure great bodily harm and mischief to be done to the said C. D., and to incite and provoke him the said C. D., unlawfully to fight a duel with and against the said E. F., afterwards, to wit, on, etc., with force and arms, at, etc., did unlawfully, wickedly, and maliciously deliver, and cause to be delivered, a certain written challenge as from and on the part and by the desire of the said E. F., to the said C. D., unlawfully to (e) 2 Stark. on Slander, 361. That this is indictable at common law, see Wh. Cr. L. 8th ed. § 1773. (f) 2 Stark. on Slander, 362. fight a duel with and against the said E. F., which said last mentioned challenge is as follows, that is to say (set out the chal lenge), against, etc. (Conclude as in book 1, chapter 3.) (1033) Third count. For provoking and inciting the prosecutor to fight.(g) That the said A. B., being such evil disposed person and dis turber of the peace of our said lord the king, as aforesaid, and intending to procure great bodily harm and mischief to be done to the said C. D., and to incite and provoke him the said C. D., unlawfully to fight a duel with and against the said E. F., afterwards, to wit, on, etc., with force and arms, at, etc., did unlaw. fully, wickedly, and maliciously provoke and incite the said C. D. (in the peace of God and our said lord the king then and there being), unlawfully to fight a duel with and against the said E. F., against, etc. (Conclude as in book 1, chapter 3.) (1034) For a verbal challenge.(h) That A. B., of, etc., gentleman, being an evil disposed person, and intending to do great bodily harm and mischief to one C. D., and to provoke and incite him the said C. D., unlawfully to fight a duel with him the said A. B., on, etc., at, etc., in pursuance of, and for the completing of his said intent and design, did unlawfully, wickedly, and maliciously, by opprobrious words and threatening language, provoke, incite, and challenge the said C. D. unlawfully to fight a duel with and against him the said A. B., against, etc. (Conclude as in book 1, chapter 3.) (1035) Giving a challenge in the presence of a justice of the peace.(i) That G. W., of, etc., on, etc., at, etc., and within the jurisdiction of this court, with force and arms, etc., and in the presence and hearing of J. F., Esq., then and there being one of the jus tices of this commonwealth, the peace in the said county to keep, assigned, and in the due execution of his said office, unlawfully and contemptuously did provoke and challenge one A. H. to fight with him the said G. with deadly weapons, to wit, (g) 2 Stark. on Slander, 362. () Davis's Prec. p. 87. Taken by Mr. Davis from 3 Chit. C. L. 850. Drawn in 1789 by Mr. Bradford, then attorney-general of Pennsylvania. with pistols, in contempt of the laws, to the evil example of all others, contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.) (1036) For sending a challenge, in Pennsylvania. That A. B., of, etc., on, etc., at, etc., and within, etc., a certain C. D., in the peace of God, etc., then and there being, with force and arms, etc., to fight with swords, pistols, and other dangerous and destructive weapons, did provoke and challenge, with intention the said C. D. to kill and murder, contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.) (1037) Accepting a challenge. That C. D., of, etc., on, etc., at, etc., and within, etc., a provocation and challenge to fight with swords and pistols, and other dangerous and destructive weapons, unjustly and unlawfully from a certain A. B. did accept, receive, and take, contrary, etc. (as above). (1038) Engaging in a duel, under Ohio statute. day of That A. B., of the county aforesaid, being a person regardless of the life of man, on the in the year of our Lord one thousand eight hundred and at the county of aforesaid, did unlawfully and voluntarily engage in and fight a duel with one M. N. then and there being, with deadly weapons, to wit, with pistols then and there loaded with gunpowder and leaden bullets (or other weapons, naming them), to the great hazard of the lives of the said A. B. and M. N., from which duel engaged in as aforesaid, by the said A. B. and M. N., no death did ensue; contrary, etc. (1039) Being second in a duel, under Ohio statute. (Follow the form last above given to the end, and then proceed thus): and that one C. D., then and there being a person regardless of the life of man, then and there, to wit, on the said day of in the year aforesaid, at the county of aforesaid, did unlawfully, knowingly, and voluntarily become, and then and there unlawfully, knowingly, and voluntarily was second to the said A. B., in engaging in and fighting the duel aforesaid; contrary, etc. |