
    The Commonwealth vs. Tibbs.
    Indictment.,
    
      November 9.
    A challenge, within the mean ing of the stat. irte against du-elling, is a requisition, demand, or request, to fight with deadly wea pons : expressing a readiness-to accept a challenge, does not amount to challenging!
    Words insinuating a desire to fight with deadly weapons —as they tend to provoke such combat, may amount to a misdemeanor at the common law.
    [Atto. Gen. Aforehead for the Commonwealth : Air. Crittenden for Defendant.]
    From the Circuit Court of Laurel County.
   Chief Justice Robertson

delivered the Opinion of the Court.

GreenbeRRv Tibbs was indicted for challenging Jonathan McNeel to fight with deadly weapons in single combat ; and on the trial, the proof was, that immediately after they had been quarrelling, Tibbs said to McNeel, u lam told you carry weapons for me — 1 loill fight you a duel with a pistol or a rifle, from one step to a hundred yards-’ Upon that proof, the jury found a verdict of not guilty.

The only question which we shall consider, is, whether the words which were proved,.amount to a challenge within the meaning of the act of assembly.

It is impossible to define, with precision, what words will, ex vi termini, import a challenge to fight a duel;, but we are of the opinion, that the words which have been quoted, do not necessarily amount to such a challenge as was contemplated by the penal statute of this stater

■ No words that should not be construed as a requisition, demand, or a request, to fight, should be deemed a challenge to single combat.

When the occasion and other accompanying circumstances are considered, the words which were proved in ibis case, do not import, necessarily, or by clear implication, such a requisition, demand, or request; but rather evince only a willingness to fight, if McJSeel should desire such a rencounter.

Such words might amount to a misdemeanor, at common law, for they may be deemed an ‘■iinsmualion,'> of a desire to fight with deadly weapons, which might provoke such a combat, and which, therefore, is punishable as a nfisdemeanor. (1 Hauk. pleas of the Cr. c. 63. §3.) But Tibbs was not indicted for such a misdemeanor. And the jury, under all the circumstances, had a right to find that he had not been guilty under the act of assembly.

Wherefore, the judgment of acquittal is affirmed.  