
    The State v. John Strickland.
    A challenge to fight a duel under the Act of 1812, may be given verbally, and whether the words used amount to a serious challenge to fight, or are the mere ebullition of passion, is a question for the jury.
    Tried before Mr. Justice Richardson, at Spartanburg, November Term, 1819.
    This was an indictment for a challenge to fight a duel, against the Act of the 18th December, 1812.
    
    It was proven that in a quarrel between the prosecutor and defendant, defendant, as the prosecutor expressed it, bantered him to go into the old field to fight a duel; to which he replied he did not fight in that way. Defendant had a gun in his hand, and prosecutor said to him he had no gun there. Defendant told him to go and get his gun. He then observed he had no ammunition ; upon which defendant offered to lend him some if he would get his gun. The prosecutor declared the defendant appeared serious, and expressly said, “ walk out and fight a duel.”
    ^Joseph Gilbert said defendant did not use the word duel at all, but r-x-ioo the prosecutor himself, in refusing to fight, answered that the duel was L ° the gentleman’s way. He understood defendant to mean, if prosecutor saw cause to meet him, they would “ fight it out,” or knock it out. He said defendant was in a great passion. But another witness, Davis, said defendant offered prosecutor a duel, if he would go into the old field. Prosecutor refused, saying that was the gentleman’s cut. Jacob Ohapipan afterwards heard defendant acknowledge he had offeree to fight the prosecutor from a broom straw upwards, or with guns. Defendant told the witness that the prosecutor refused, having no ammunition, whereupon defendant said he offered him ammunition. At the same time defendant said lie would defeat the prosecution, because the law required a written challenge.
    The Court submitted to the jury this inquiry: Whether there was sufficient proof of a challenge to fight with deadly weapons ; or was it a mere effusion of passion, and expressions of empty threats, without any serious intention or expectation of a duel ? The jury found the defendant guilty.
    The motion is for a new trial, because the evidence does not warrant the conclusion that defendant seriously challenged the prosecutor to fight a duel.
    
      Gist, for the motion. Davis, Solicitor, contra.
    
      
       5 Stat. 671.
    
   The opinion of the Court was delivered by

RICHARDSON, J.

Assuredly there is room for a difference of opinion, whether the defendant seriously challenged the prosecutor to fight a duel or not. Much depends upon the habits and character of the parties. But this Court cannot say that a challenge may not be given in this open, public and boisterous way, though very unusual indeed. The Act forbids the first step towards a duel, and punishes the challenger. Its policy is, to intercept the first step towards a battle ; its maxim, obsta principiis.

We can lay down 110 general rules. The law *makes every serious challenge to fight a duel, penal; and the proper tribunal have said, there was a serious challenge in this case. Now, can we gainsay the conclusion drawn ? By no means. Though the testimony may possibly not prove it to every man, considering the characters engaged. Yet, with other characters, such testimony would be demonstration, to every man, of the serious intention of the defendant. There is no room, then, for us to interfere. And we can only warn, by these instances, the unskilful, as well as those more thoroughbred, to beware of this dangerous tool, which may wound deeply; though the fashionable form was not practised in the use, nor any blood shed. The sole question is, was it intended to shed blood in a duel ? The case of Wilson Saunders, was, it is true, much like the case before us, in point of testimony, except in the after acknowledgment made by this defendant to Chapman, that he had offered to fight, &c., &c. But that case was received with great favor indeed ; because the presiding judge had advised the jury to find Saunders guilty, in order to try if such a challenge could be brought within the then recent Act; of which the Court had no doubt; but sent the case to be tried upon the only proper inquiry — was there a serious challenge to fight a dnel ? Which should have been sent to the jury un-biassed by any recommendation to find a particular verdict, in order to try the law.

The motion is refused.

Coloook, Nott and Johnson, JJ., concurred.

Gantt, J., dissented.

See Ante, 13 and 16, note, 2 MoO. 335 ; 3 Brev. 243, or 1 Tread. 709.  