
    James Herriott & James Patterson ads. The State.
    Any agreement to fight with loaded pistols, and actually fighting in pursuance, constitutes a duel under the Act. And it does not depend upon the time when the agreement was made, but upon the fact of the agreement.
    The circumstances attending a fighting with pistols, and the intention of the parties, are questions of fact to be left to the jury.
    In the City Court, Charleston, before his Honor the Recorder, July Term, 1840.
    The defendants were indicted for fighting a duel; the following is the testimony :
    
      
      Solomon Moses, sworn — Testified lie knows the defendants. On the night of the 24th May last, was with the jury in the Court as attending constable; between twelve and one o’clock, was called and requested to go next morning to the west end of Broad street, that there was to he a duel or posting, and the in form ant had no doubt there would he bloodshed. Joseph Yates was with him that night when he received the information, and accompanied him; on their way there saw Fell, Gribbes, Herriott and Patterson ; followed Gibbes and Fell, until they got beyond Trapman’s, theyfhen stopped. Fell took out a paper and stuck it up on a lamp post, witness and Yates were between the two parties. Herriott and Patterson were approaching. Fell, about this time, put his hand in his waistcoat, and witness saw a pistol.; he threatened to arrest him. ^Herriott and Patterson wejc distant from them about the length of the court room, (City llall;) they farmed and walked away through Savage street, and stopped at a little distance ; Fell and-Gibbes came along. Gibbes followed Herriott and Patterson down Savage street. Gibbes promised him that nothing should be done that morning, and witness went away. Herriott and Patterson went clown Savage street; the others up Broad street; there was some excitement at the time the paper was put up.
    
      Cross-examined — Knows nothing of his own knowledge about the duel. From what he saw, he should say, the object of the parties was to post. The paper was taken town; don’t know by whom; no one saw the paper but the posters who put it up.
    
      Joseph Yates, sworn — Testified: went with Moses ; before they got to King street, met flie two Herriotts and Patterson ; did not know at the time that they were the parties concerned ; he and Moses went to the west end of Broad street, and sat down near Trajmian’s fence for some time ; Moses said he did not think they would come, and proposed to go home; Moses left witness and went towards home ; after Moses left him, he saw Fell and Gibbes get out of a buggy at Matthews’ stables ; ho went after Moses and called him hack. When they returned, saw Fell and Gibbes at the lamp-post beyond Trapman’s. Gibbes asked Moses what brought him there ? Moses said, to stop bloodshed ; Gibbes said, this is no child’s play; there is some other place besides Broad street. Gibbes, Fell, witness and Moses, walked to the comer of Savage street; the two Herriotts and Patterson were half way down Savage street; Gibbes went and spoke to Herriott and Patterson; the others went on; Gibbes overtook them ; Moses went home, and witness went as far as the gate of the Catholic Church ; looked back and saw Herriott and Patterson come up Logan street, to the corner of Broad street; Gibbes and Fell then returned towards them ; all five met at the corner of Logan and Broad streets ; Gibbes and Patterson spoke together, and they all went down Broad street, towards Trapman’s. Witness followed them ; when they got to Trapman’s, all went on except the younger Herriott, and stopped at the lamp-post. Fell went towards Rutledge street, llerriott remained at the lamp-post. Patterson and Gibbes were in conversation. *Saw Gibbes walk towards Fell and return to the lamp-post, Thought they were conversing. They stood there about five minutes. Witness turned round to see who was coming, and heard two pistols in quick succession; he immediately ran towards them; met Gibbes and the younger llerriott running up Broad street; Gibbes said he was going for Hr. Frost; llerriott asked him to go up and stop the blood; the elder Herriott was leaning on Patterson’s shoulder ; he was shot in the cheek. Patterson asked witness to walk down and pick up the pistols ; he picked up four pistols ; saw Fell have a paper in his hand; did not see him post it up ; just before they fired, Fell was standing with hack to the west, Herriott with back to the east; Gibbes and Patterson were standing off, forming a square with the others.
    
      Cross-examined — Said lie was one hundred and fifty yards from them when they fired; they were five or ten minutes at the lamp-post before they fired; saw no preparations to take distance.
    
      David xi. Ring, sworn — Testified and said he lives near the spot; saw Patterson and llerriott passing to the west end of Broad street, towards Rutledge street; saw what proved to be Fell and Gibbes at the lamp-post; Patterson and Herriott returned, and conversed a little ; saw Fell go up to the lamp-post with a paper in his hand, as if to put it up ; he withdrew his hand, still holding the paper ; Patterson and Herriott walked again to the west, stopped and conversed ; Herriott remained and Patterson returned, spoke to tlie others, and then returned to Herriott; they both walked on and returned to Rutledge street; Patterson then returned and lierriot.t followed him; Patterson went up to Fell and Gibbes and staid a short time and returned, and met Herriott and conversed together ; they then both returned to the lamp-post; when they got within ten or twelve paces, Herriott halted; Patterson approached Pell and Gibbes ; about a half minute passed; Herriott retained his position. Patterson and Gibbes went into the middle of the street; each opposite the one he was with ; Herriott and Fell retained their positions ; when Patterson and Gibbes were nearly opposite tlieir respective friends, they faced about; a second after the pistols were discharged. Herriott went towards Patterson and fell in his arms ; the whole affair occurred in ten or twelve minutes ; the position of the gentlemen formed a square.
    Here the testimony Closed : defendants offered no evidence.
    *It is a mistake on the part of defendant’s counsel, that I charged as attributed to me, in his first and second grounds.
    There was a good deal said on that subject in the course of the argument, by way of inquiry on my part for information as to some positions assumed in the science of duelling, and by way of comment on the authorities produced ; but I certainly did not charge the jury on that subject.
    When it was submitted' to the jury, I charged them, that if they believed', from the evidence, that these parties fought in pursuance of a previous agreement to do so, that it was a duel within the meaning of the Act; it did not depend upon the time when the agreement was made but upon the fact of the agreement; or in other words, that if they believed that the said parties went, the one with a view to post, and the other to resist it, and the posting was superseded by an agreement to fight, and they did fight, that it was fighting a duel within the meaning of the Act, and that the defendants were obnoxious to the penalties of the law.
    The jury found the defendants guilty, and they appealed on the following grounds ;
    1. His Honor, the Recorder, charged the jury that a duel might well be, where death ensues to one of the principals, and the slayer will not be guilty of murder.
    2. His Honor directed the jury, that if two men agree to settle a present dispute by an immediate appeal to arms, and they forthwith fight, with unequal weapons, it is a duel, and one may be killed, and the slayer be well convicted of manslaughter.
    3. That the only evidence of a duel or agreement to fight, was wholly circumstantial, and if to be relied on, only proved an affray or riot.
    
      Wilson, for the motion,
    said that a duel was a single combat, at a fixed time and place, in consequence of a challenge. That the custom came originally from the northern nations, among whom it was usual to decide all their controversies by arms. There were pledges given on their respective behalf, lie said, that among the Germans, Danes and Francs, none but women, sick persons and cripples, and those under twenty-one, and over sixty years, were excused. Ecclesiastics, *monks and priests, were obliged to find champions in their stead. Tlio penalty of the vanquished was either death by hanging or beheading, or mutilation of members, according to the circumstances of the case.
    The definition of duelling—vide, English Dic. Tit. Duelling. Duel, Mr. W. argued, at present is issued for single combat, or some private combat, and must be premeditated; otherwise it is but a rencounter. Duelling, in this last sense, had its origin in the year 1527, at the breaking up of the treaty between Charles 
      
      V. and Francis T. The former informed the herald of the latter, that he would hereafter consider him not only a base violator of public faith, but a stranger to the honor and integrity of a gentleman. Francis returned his herald with a cartel of defiance, in which he gave the usurper the lie in form, challenged him to single combat, requiring him to name his time and place and his weapons. Cited 2 Chitty’s Crim. Law, 727; 3 lb. 348.
    See State vs. Cunningham, 2 Sp. 253. An.
    
    
      Bailey, Attorney General, contra,
    said the Court will consider the meaning of the Legislature, and determine whether this is a duel under the Act of 1812. It is not the light in which the duellist regards duelling that is to govern, but the Court is to look to the intention of the Legislature upon the subject, and construe the Act accordingly. Mr. B. contended that any rencounter that follow's from a posting is, of itself, a duel.
   Curia, per

Richardson, J.

This Court concurs with the Recorder, in his definition of a duel. Any agreement to fight with loaded pistols, and actually fighting in pursuance, constitutes a duel under the Act. The question was one of fact for the jury to decide. A challenge had passed and was said to be refused ; the challenger threatened to post his opponent. The parties repaired to a certain spot with loaded pistols, attended by their respective friends, early in the morning. They were seen to form a square ; the principals stood face to face, east and west of each other ; the apparent seconds stood to the right or left of their principals respectively. I should have before stated, one of the apparant seconds, upon one party being intercepted by the officers, had before said it was no child’s play ; there is some other place besides Broad street; *and that a paper was put up before the fight and immediately taken down. But standing in the position I have described, the principals fired, and both were wounded. This may have been a sudden rencontre arising out of the posting. But the challenge, the preparation of pistols, the attending of friends, the time of day, and the conduct of the respective parties, also indicate a concerted duel ; and the jury having decided under proper instructions, that it was a duel, the Court cannot interfere with their wholesome finding, and the motion for a new trial is refused.

The whole court concurred.  