Herriott v. State

26 S.C.L. 126

• Court: Court of Appeals of South Carolina
• Decided: February 15, 1841
• Status: Published

Opinion

Curia, per

Richardson, J.

This Court concurs with the Recorder, in his definition of a duel. Any agreement to fight with loaded pistols, and actually fighting in pursuance, constitutes a duel under the Act. The question was one of fact for the jury to decide. A challenge had passed and was said to be refused ; the challenger threatened to post his opponent. The parties repaired to a certain spot with loaded pistols, attended by their respective friends, early in the morning. They were seen to form a square ; the principals stood face to face, east and west of each other ; the apparent seconds stood to the right or left of their principals respectively. I should have before stated, one of the apparant seconds, upon one party being intercepted by the officers, had before said it was no child’s play ; there is some other place besides Broad street; *and that a paper was put up before the fight and immediately taken down. But standing in the position I have described, the principals fired, and both were wounded. This may have been a sudden rencontre arising out of the posting. But the challenge, the preparation of pistols, the attending of friends, the time of day, and the conduct of the respective parties, also indicate a concerted duel ; and the jury having decided under proper instructions, that it was a duel, the Court cannot interfere with their wholesome finding, and the motion for a new trial is refused.

The whole court concurred.