(1040) Against a second for carrying a challenge, under the South Carolina statute.(j)

That B. C. Y., late of, etc., being resident in and citizen of the state of South Carolina aforesaid, intending to procure great bodily harm and mischief to be done to one T. C. P., of, etc., and to incite and provoke him the said T. C. P. unlawfully to fight a duel with and against one J. C. C., of, etc., on, etc., with force and arms, at, etc., did unlawfully and wickedly carry, convey, and deliver, and cause to be carried, conveyed, and delivered, a certain written challenge of and from the said J. C. C., to the said T. C. P., to fight a duel with and against him the said J. C. C., which said written challenge is as follows, that is to say (here set out the letter with the proper innuendoes), to the great damage of the said T. C. P., against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(1041) Second count. Same as first, omitting to set out letter.

Third count.

That the said B. C. Y., being resident, etc., intending to procure great bodily harm and mischief to be done to one T. C. P., and to provoke and incite the said T. C. P. unlawfully to fight a duel with and against one J. C. C., on, etc., with force and arms, at, etc., aforesaid, was directly concerned unlawfully in carrying to the said T. C. P. a challenge to fight a duel with and against the said J. C. C., which said challenge was in writing in the form of a letter addressed to Mr. T. C. P., as follows, that is to say (here set forth the letter with the proper innuendoes), to the great damage of the said T. C. P., to the evil example of all others, against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(1042) For being a second in a duel.(k)

That A. B., of, etc., gentleman, on, etc., with force and arms, at, etc., did voluntarily engage in a duel with one C. D., with dangerous weapons, to wit, with pistols, then and there loaded with gun

(j) Held good in State v. Cunningham, 2 Spear, 248.

(4) Davis's Prec. p. 90. This indictment was prepared by Mr. Davis, and is drawn upon the Mass. Stat. of 1804, ch. 123, § 6.

powder and leaden bullets, to the great hazard of the lives of the said A. B. and C. D., in which duel, engaged in as aforesaid, no homicide did ensue thereon; and the jurors, etc., do further present, that E. F., of, etc., gentleman, being a person regardless of the life of man, and holding in contempt the authority and government of the supreme giver and disposer of human life, on, etc., in the year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, did knowingly and voluntarily become, and then and there knowingly and voluntarily was, the second of the said C. D., and was then and there knowingly and voluntarily an agent and abettor of him the said C. D. in the duel and challenge aforesaid, against, etc., and contrary, etc. (Conclude as in book 1, chapter 3.)

(1043) Sending a written message to a person to fight a duel. Rev. Sts. of Mass. ch. 125, § 6.

The jurors, etc., upon their oath present, that C. D., late of B., in the county of S., laborer, on the first day of June in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, wilfully and maliciously did send a certain written message to one E. F., purporting and intended to be a challenge to the said E. F., to fight a duel with the said C. D., with a deadly weapon, to wit, a pistol, which written message is of the tenor following, that is to say (here set out a copy of the message); against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.

(1044) Posting another for not fighting a duel. Rev. Sts. of Mass. ch. 125, § 8.

The jurors, etc., upon their oath present, that A. B., late of, etc., on the first day of June, in the year of our Lord with force and arms, at W., in the county of W., wickedly, wilfully, and maliciously did challenge one C. D. to fight a duel with the said A. B., with deadly weapons, to wit, with pistols; and that the said C. D. having then and there refused to fight the duel aforesaid with the said A. B., in pursuance of the challenge aforesaid, the said A. B. afterwards, to wit, on the same day and year aforesaid, at W., in the county aforesaid, did wickedly and maliciously post and expose the said C. D. to public reproach,

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by then and there placing and exposing to public view, to wit, on the City Hall in W. aforesaid, in the county aforesaid, a certain writing, with the name of the said A. B. thereunto subscribed, containing reproachful and contemptuous language to and concerning the said C. D., which writing is of the tenor following, that is to say (here insert a copy); against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.

(1045) Challenging and posting, at common law.(l)

That A. B., late of, etc., esquire, being a person of a turbulent, wicked, and malicious disposition, and not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and wickedly and maliciously intending, as much as in him lay, not only to terrify and affright one C., a good and peaceable subject of our said lord the king, but also to kill and murder him, heretofore, to wit, on, etc., with force and arms, at, etc., unlawfully and wickedly did provoke and challenge the said C. to fight a duel against him the said A. B. with sword and pistol, and, etc., that the said C. having then and there refused to fight with the said A. B. in pursuance of such wicked and unlawful challenge last aforesaid, he the said A. B., for the completing his aforesaid evil and wicked purpose and design, and further to provoke and incite the said C. to fight a duel against him the said A. B. in the manner aforesaid, afterwards, to wit, on the same day and year aforesaid, at C. aforesaid, in the county aforesaid, did wickedly and maliciously place, stick up and upon, and cause to be placed, stuck up, and exposed to public view, to wit, on the market-house in C. aforesaid, a certain paper writing, with the name of him the said A. B. thereunto subscribed, containing certain scurrilous and abusive matter against the said C., of the tenor following, that is to say (here set out the letter with the proper innuendoes), to the great damage and terror of him the said C. F., and against, etc. (Conclude as in book 1, chapter 3.)

(1) 2 Stark. on Slander, 363. See for a form of posting alone, 942.

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CHAPTER XII.

ATTEMPTS AND SOLICITATIONS TO COMMIT OFFENCES. (a)

(1046) Attempt to commit an offence.

(1047) Attempt to burn dwelling-house. Rev. Sts. of Mass. ch. 133, § 12. (1048) Attempt to burn a dwelling-house in the night-time, by breaking and entering a building, and setting fire to the same. Rev. Sts. of Mass. ch. 133, § 12.

(1049) Attempt to commit a larceny from the person of an individual, by picking his pocket. Rev. Sts. of Mass. ch. 133, § 12.

(1050) Attempt to commit arson, etc., in New York, under 2 Rev. Stat. 698, § 3.

(1051)

First count, attempt to set fire, etc.

Second count. Soliciting another to commit arson, etc.

(1052) Attempt to set fire to a house, at common law.

(1053) Conveying instruments into a prison with intent to facilitate the escape of a prisoner.

(1054) Lying in wait near a jail, in order to secure a prisoner's escape, at common law.

(a) While an attempt to commit a felony is in itself a misdemeanor (1 Hawk. P. C. 55; Higgins's case, 2 East, R. 21; R. v. Kinnersly, 1 Strange, 196), an attempt to commit even a misdemeanor is indictable. Higgins's case, 2 East, R. 8; R. v. Phillips, 6 East, 464; State v. Murray, 15 Maine, 100; State v. Keys, 8 Vt. 57; Com. v. Harrington, 3 Pick. 26; State v. Avery, 7 Conn. 267; Ďamarest v. Haring, 6 Cow. 76. See Wh. Cr. L. 8th ed. §§ 173 et seq. Thus it is an indictable offence to advise A., against whom a sheriff has a precept, and whom he is about to arrest, to draw a line on the ground and forbid the officer to pass it, asserting at the time that if the sheriff passed the ground and A. killed him, the law was on A.'s side (State v. Caldwell, 2 Tyler, 212); to lie in wait near a jail, by agreement with a prisoner, and to carry him away (People v. Washburn, 10 Johns. R. 160); to send threatening letters (U. S. v. Ravara, 2 Dall. 597); to challenge another to fight with fists (Com. v. Whitehead, 2 Boston Law R. 148); to challenge another to fight under any circumstances, though not in such a way as to constitute the statutory offence (State v. Farrier, 1 Hawks, 487; State v. Taylor, 3 Brev. 243); or to even intimate to another a desire to fight with deadly weapons. Com. v. Tibbs, 1 Dana, 524. See supra, § 103.

In an indictment for attempting to commit an offence, it is not necessary to maintain an exactness as great as that which is essential in an indictment for the offence itself (R. v. Higgins, 2 East, 5; People v. Bush, 4 Hill. 133; see Wh. Cr. L. 8th ed. §§ 173 et seq.). But while this is the case, the same laxity is not permitted as is allowed in indictments for assaults, unless there be statutes making specific attempts distinctively indictable. At common law the indictment must aver the circumstances of the attempt. Wh. Cr. L. 8th ed. ¿¿ 190 et seq.

(1055) Keeping keys with intent to commit burglary.
(1056) Having in possession implements of burglary.
(1056a) Attempting to drown.

(10566) Attempt to murder by explosion.

(1056c) Administering chloroform with criminal intent.

(1057) Attempt to obtain money by means of false pretences.
(1058) Poisoning. By mixing arsenic with water, and administering the
same with intent to kill, under Ohio statute.

(1059) Administering poison with intent to murder.

(1059a) Administering poison with intent to produce miscarriage.

(10596) Administering poison with intent to murder.

(1059c) Administering poison so as to endanger life.

(1060) Attempt to commit suicide.

(1060a) Soliciting to buggery.

(1046) Attempt to commit an offence.

That A. B., of, etc., on, etc., at, etc., did attempt to commit an offence prohibited by law, to wit, did attempt, with force and arms, to (state the offence), that being an offence prohibited by law, and in such attempt did then and there do a certain overt act towards the commission of said offence, to wit, did then and there, with force and arms (state the act done, etc.)(b); but that the said A. B. then and there did fail in the perpetration of said offence, and was intercepted and prevented in the execution of the same, against, etc., and contrary, etc. (Conclude as in book 1, chapter 3.)

(1047) Attempt to burn dwelling-house. Rev. Sts. of Mass. ch. 123, $ 12.

That A. B., late of B., in the county of S., yeoman, on the first day of June, in the year of our Lord at B., in the county of S., did feloniously, wilfully, and maliciously attempt to set fire to and burn a certain dwelling-house of one C. D., then occupied by one E. F., there situate, and in such attempt did then and there place a quantity of combustible materials on certain boards under said dwelling-house, and did then and there set fire to said combustible materials, with the intent thereby then and there to burn said dwelling-house; but the said A. B.

(b) There must at common law be some specification to indicate that the thing attempted was illegal, and that the attempt went further than a mere preparation. Wh. Cr. L. 8th ed. 190.