
    The State vs. Dupont.
    The principal who sends a challenge or fights a duel is embraced i¿ the act of 1812.
    The declarations of the second are admissible against the principal.
    The provisions of the act that prohibits an offender from holding any office of honor, profit or trust, or of exercising any trade, profession, or calling, does not constitute a part of tire sentence to be passed on one convicted; and whether constitutional or not, can only be determined upon a person so convicted attempting to hold any such office, ¡kc.
    Charleston, January Term, 1823.
    THE defendant was indicted under the act of 1812, for sending a challenge. The verdict “ guilty.”
    It appeared that the defendant was displeased with the evidence of the prosecutor in a case pending in the Courts of Equity. It did not appear that the manner or words of the prosecutor had been such as were calculated to give Menee. The defendant was heard to say immediately after ihe examination of the prosecutor “ that he should hear from him.” The next morning Mr. TV. waited upon the prosecutor with the following note — “ Circumstances of a nature with which you are well acquainted, having transpired, some explanation on your part is required, if such be not given, my friend Mr. TV. will make such arrangements as are necessary.” Mr. TV. when called on as a witness, on the pact of the state, claimed the protection of the court, on the ground that he could not answer any question put by the attorney-general relevant to the case, without implicating himself. He was excused. The prosecutor stated that Mr. W. on being asked by him. what was required, replied, that unless some satisfactory-explanation was given, he (the prosecutor) must fight the defendant.
    This declaration of Mr. TV. was objected to by the defendant’s counsel, but the objection was overruled.
    The prosecutor further stated, that the note Was immediately returned to Mr. TV. and that on the next day he was posted by the defendant.
    In the argument of the case, the defendant’s counsel contended that the principal in a duel or challenge was not embraced by the act. The presiding judge was of opinion that the principal was embraced by the act, and so instructed the jury, who returned a verdict of guilty.
    A motion was now submitted for a new trial.
   Mr. Justice Huger

delivered the opinion of the court:

In this case, these questions have been made.

1st. Whether the declarations of the second were admissible ?

2d. Whether the duelling act embraces within its prohibition the principals in a duel and challenge ?

3d. Whether the act he constitutional or not?

'Of these, the two first have been before decided by this court. In the case of the State vs. Taylor, it was ruled fbat the declarations of the second were admissible. And in the case of the State vs. Strickland, the defehdant3 who was indicted under the act of, 1812, for giving a challenge, was convicted, and appealed, and the appeal was dismissed. Several other cases have occurred. In all, the principal has been regarded as embraced within the sanction of the act. Were -the phraseology of the act even less perspicuous than it is, I should be unwilling now, in opposition to those cases, to give it the construction contended for by the appellant’s counsel. On the two. first grounds, therefore, the appellant must fail. Whether that provision of the act which disqualifies a convicted offender against the act, from holding any office of honor, profit or trust, or of exercising any trade, profession or calling, be constitutional or not, is quite unimportant in the present case. The disqualification is not a part of the sentence of the court, no more so, than in a case of puijury, is it a part of the sentence that the defendant be forever disqualified from giving testimony in a court of justice. In both cases, the disqualification is a legal disability resulting from the conviction, and can only be tested, when in the one case, the offender shall be offered as a witness, and in the other an attempt shall be made to exercise a calling, practice or profession, or hold an office.

The motion must therefore be dismissed.

Justices Johnson, Colcoclc, Richardson and Noti, conk, ettrred.  