
    The State of Kansas v. Patrick J. Purtell et al.
    
    No. 10449.
    1. Prize-right— What is. Not all physical contests for a prize or reward are punishable under the statute as prize-fights. The contest must be a fight, and there must be an intent on the part of the contestants to do violence to and inflict some degree of bodily harm on each other.
    2. -Evidence. In a prosecution against .persons charged with prize-fighting, it is not necessary to.show that the prize or reward was to be gained by one from the other. It is sufficient if they engaged in a fight for a prize, and the fact that a prize was awarded to the defeated as well as to the successful combatant does not necessarily prevent a conviction.
    
      Appeal from Cherokee District Coitrt.
    
    Patrick J. Purtell and W. H. Johnson were convicted of prize-fighting. They appeal. The material facts are stated in the opinion, filed February 8, 1896.
    
      W. E. Cowley, and John A. Hale, for appellants.
    
      F. B. Dawes, attorney general, and C. A. McNeill, county attorney, for The State.
   The opinion of the court was delivered by

Allen,- J.

: The defendants were convicted of prizefighting, and sentenced to confinement in the penitentiary for one year. From this conviction they appeal. The contention on their behalf in this court is that the trial court erred in its definition of the term “prize-fight,” as contained in the instructions given to the jury. The portion of the instructions most criticised reads as follows :

“The word ‘prize-fight/ as used in the statute of this state, and as used in the information, is used in its ordinary signification, and means a fight, or physical contest, between two persons for a prize or reward ; and it is immaterial whether such fight, or physical contest, is witnessed by many or few persons. The word ‘prize’ or ‘reward/ as used in the information, means a reward or sum of money to be gained by contest or competition. In order to constistitute a prize-fight under the statute of this state, there must have been an expectation, on the part of the persons engaged therein, of a reward or prize to be given to and received by such contestants, or the successful contestant; but it is immaterial whether such prize or reward is to be won by the successful contestant from the other, or to be otherwise awarded ; but the guilt of each defendant must arise from the joint act, fight, or personal and physical contest of the two contestants.”

That a contest took place between the defendants at Sapp’s opera-house in Galena at the time charged is admitted. It is also admitted that it came off pursuant to a written agreement between the Galena Athletic Club on one part, and the defendants on the other, under which the defendants agreed to give a sparring exhibition of 25 rounds with five-ounce gloves, according to the Marquis of Queensbury rules. It provided for a referee, with power to continue the contest for a greater number of rounds. For this exhibition the athletic club agreed to pay each of the defendants $50. There was no substantial controversy in the testimony offered at the trial as to what was done. That a contest took place ; that the parties used gloves weighing five ounces each; that there -were 22 rounds of sparring with such gloves, and that the defendant Johnson was knocked down, and, failing to get up, was declared beaten, is undisputed. The claim of the defendants, at the trial and in this court, is that this was a lawful exhibition ; that it was what is fairly and properly termed a “sparring or boxing match with gloves,” for the purpose of exhibiting the skill, strength and agility of the contestants in a proper and lawful contest; that for this exhibition the parties were each paid a sum of money, the amount of which did not depend on the result of the contest; that it was not a prize-fight within the meaning of the law, because it was not for a prize to be gained only through success ; nor a fight, because the parties were entirely friendly and free from the purpose to injure each other. On the part of the state it is insisted, that the testimony clearly shows that this was an ordinary brutal fight for money, and of the kind the statute was designed to prohibit; that the evidence shows beyond question that the parties fought till one of them was knocked senseless, and that the conviction was rightly had.

It is not for this court to express an opinion as to the guilt or innocence of the defendants under the testimony. They had a right to have the law correctly declared to the jury. Webster defines the word prize-fight, “A contest in which the combatants fight for a reward or wager.” The court instructed the jury that the word “prize-fight,” as used in the statute, means a fight or physical contest between two parties for a prize or reward, and this phrase “ fight or physical contest,” or the expression “fight or contest,” is repeated many times in the instructions. By this the court gave the jury to understand that it need not be a fight, but that a physical contest for a prize or reward was punishable under the statute. This is not the law. There are very many physical contests which are not only not punishable, but altogether permissible. It was conceded that the defendants engaged in a physical contest. It was even conceded that they engaged in a boxing-match, but it was not admitted that they fought. It is a fight, only, that the statute reaches. Wrestling, fencing, bóxing, and numberless other matches, in which tire physical powers are employed by men in friendly contests with each other, are not punishable. It must be a fight. The woi’d “fight” implies a purpose to use violence for the purpose of inflicting injury, and the jury alone had the right to determine whether the defendants, in fact, engaged in a fight, or merely in an innocent contest with no purpose to inflict injury on each other. Whether the gloves xxsed were such as rendered it improbable that the contestants could inflict injury on each other, or were put on as a mere sxxbtex’fuge to disguise a fight, was for the jury to determine. (The State v. Burnham, 56 Vt. 445 ; People v. Taylor, 56 N. W. Rep. 27.) We think that part of the instruction with reference to the prize or reward substantially correct, and that it makes xio difference whether the prize or reward is to be woxx by the successful contestant from the other, or to be awarded by a third party. Nor do we deem it indispensable that the prize or reward should be given to the successful contestant alone, though there must be a prize to be gained by the coxitest. The evil desigxied to be remedied by the statute is that class of brutal exhibitions for giving which considerable sxxxns of money were paid, and we do not think the statute can be evaded by rewarding the unsuccessful as well as the successful combatant.

Por the error in the instructions the judgment must be reversed, and a new trial awarded.

All the Justices concurring.  