State v. Perkins

6 Blackf. 20

• Court: Indiana Supreme Court
• Decided: November 15, 1841
• Status: Published

Opinion

Blackford, J.

Indictment against the defendant forgiving to one Lemon a verbal challenge to fight a duel with guns, with intention to excite said Lemon to break the peace, &c.

The Circuit Court, on the defendant’s motion, quashed the indictment.

The only objection made to the indictment is, that the challenge was a verbal one.

The language of the statute is, “ that every person who may give or accept a challenge to fight a duel, or who shall agree, &c., shall, upon conviction thereof, be fined, &c.” Rev. Stat., 1838, p. 211. It can not be material, under this statute, whether the challenge given be by words or in writing. The offense is in either ease indictable. We know of no reason for any distinction, and, certainly, the statute makes none.

By the common law, it is as much an offense to give a ^verbal challenge as it is to give a written one. The language of Lord Coke is, “And if any subject by word, writing, or message, challenge another to fight with him, this is also an offense before any combat be performed, and punishable by law; and it is contra pacem,coro-nam, et dignitatem,.'” 3 Co. Inst., 158. Hawkins says, “ that it is a very high offense to challenge another, either by word or letter, to fight a duel, orto be the messenger of sucha challenge, Ac.” 1 Hawk. Pl. Cr., 135. The law is also so stated in 4 Blacks. Comm., 150, and in 1 Russ, on Crimes, 396.

We think the indictment, in this case, ought not to have been quashed.

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.