State v. . Perry

50 N.C. 9

• Court: Supreme Court of North Carolina
• Decided: December 5, 1857
• Status: Published

Opinion

Battle, J.

An affray is defined to be the fighting of two or more persons in a public place to the terror of the citizens ; State v. Allen, 4 Hawks’ Pep. 356 ; State v. Woody, 2 Jones’ Pep. 335. From this definition, it seems to ns to be plain, that if one person, by such abusive language towards another as is calculated and intended to bring on a fight, induces that other to strike him, he is guilty, though he may be unable to return the blow. He is undoubtedly the immediate cause of the breach of the peace, and is morally the more guilty of the two ; and we are not aware of any principle which prevents the law from regarding him as a criminal. The only argument urged in his favor is, that the use of words alone, however insulting to his adversary, is not a misdemeanor, and that being innocent up to the time when he is stricken, he cannot be made guilty by the sole act of such adversary. The argument is plausible, but will not bear the test of strict examination. If one man by words, or signs, instigates another to strike a third, lie is clearly guilty of an assault and battery the moment the blow is stricken, though no offence is committed until that is done. That case is like the present in principle, and we cannot distinguish the one from the other. An affray is denounced by the law as a misdemeanor, because it is a breach of the peace ; and, surely, he who intends to provoke it, and does provoke it, ought not to escape the necessary consequence of his guilty intention. The charge of his Honor in the Court below was correct, and the judgment must be affirmed.

Pee Cueiam, Judgment affirmed.