
    
      John Cunningham ads. The State. Benjamin C. Yancey ads. The State.
    
    1. Under the Act of 1812, “to prevent the pernicious practice of duel-ling,” (5 Stat. at Large, 671,) there are enumerated four distinct offences. 1st. To fight a duel. 2d. To send, give or accept a challenge. 3d. To cause a challenge to he sent, given or accepted; and 4th. To hear such challenge as a second, or to be in any way concerned in. any duel fought or to be fought. /
    2. As to the words relating to the second offence under the Act, viz: “ if any person, resident in or being a citizen of this State,” “ shall send, give or accept a challenge to fight a duel within this State,” it was held, that the words, “ within this State,” are not Confined to the ■ duel to be fought, but apply to the sending, giving or accepting the challenge.
    3. When the intent of an Act is plain, to effect it, words, and even parts of sentences, may be transposed,
    4. According to this rule, /¿eld, that the proper reading of the clause would be, “if any person, resident in, or being a citizen of this State, shall, within this State, send, or give, or accept a challenge to fight a duel.” Also, that this construction is aided by the third provision, ■ which declares, “if any person or persons, resident in or being a citizen of this State,” “ shall cause any such challenge to be sent, given or accepted within this State, or within the limits of the United States,” &c. The words, “any such challenge,” mean a challenge to fight a duel.
    5. Where one was indicted and convicted under the Act of 1812, for hearing or carrying a challenge to fight a duel, and moved to arrest the judgment, on the ground that it was not alleged in the indictment against him, that the challenger was a citizen or resident of this State, at the time of the alleged challenge, it was held, that the words, “ any person resident in or being a citizen of this State,” do not apply both to the bearer of the challenge and the challenger, so that, in describing the offence of the former, it is necessary that the latter should be described as “ resident in or being a citizen of this State.”
    6. These words axe not a part of the statutory definition of the offence, and need not be set out in the indictment at all. They are merely descriptive of the person amenable.
    7. It is sufficient to describe the parties, without the addition of these words.
    8. In the indictment against the bearer of the challenge, the objection of non-residence in this State, or want of citizenship of his principal, could not avail after conviction; for if these had appeared in proof, it would have made the question in fact, whether he could be convicted of bearing the challenge of one not amenable to our jurisdiction.
    9. But after the conviction, the inquiry would be, is the bearing, within this State, of a challenge to fight a duel, by one who, by his plea of not guilty, has admitted the jurisdiction and offence, punishable by our Act ?
    10. But if the words, “ resident in or being a citizen of this State,” are at all to be noticed in framing an indictment, it could only be necessary to use them as applying to the person charged with the commission of the offence presented by the indictment.
    
      Before Butler, J. Abbeville, Fall Term, 1843.
    These were indictments under the Act of 1812, to prevent the practice of duelling. Both defendants were convicted; the first, as stated, of sending, and the other of bearing, a challenge to fight a duel.
    The defendant Cunningham moved the Court of Appeals in arrest of judgment in this case, on the following ground:
    Because it is not set forth in the indictment, that the challenge sent was to fight a duel ivithinthe State, and does mot, therefore, conform to the Statute, under which the defendant was indicted.
    
      The ground of appeal in this case resolves itself into a motion to arrest the judgment, and depends on the sufficiency of the indictment, and the construction of the Act under which it was framed. In his instructions to the jury before which the question was argued, his Honor overruled the same ground that is made in the above notice of appeal.
    
      An Abstract of the Indictment,
    
    The indictment charges that the defendant “ did write, send and deliver, a certain letter containing a challenge to fight a duel” — copying the letter.
    “ Did send a challenge to fight a duel”—
    “ Did cause a challenge to fight a duel to be given”—
    “ Did compose and write a certain letter containing a challenge to fight a duel” — copying the letter, which was dated “ Abbeville C. H.”
    “ Did unlawfully give and send, and causé and procured to be given and sent.” 8
    
      Indictment against Yancey. I
    At a Court of Sessions, begun to be holden in and for I the district of Abbeville, in the State of South Carolina, at I Abbeville Court House, in the district and State aforesaid, 8 on the third Monday in October, in the year of our Lord 8 one thousand eight hundred and forty-three. 8
    The jurors of and for the district of Abbeville, aforesaid, H in the State of South Carolina, aforesaid, that is to say, I -, on their oaths present, that Benjamin C. Yancey, fl late of the district aforesaid, being resident in and a citi-1 zen of the State of South Carolina, aforesaid, intending to I procure great bodily harm and mischief to be done to one I Thomas C. Perrin, of the district and State aforesaid, andH to incite and provoke him, the said Thomas C. Perrin, un-H lawfully to fight a duel, with and against one John Cunning-H ham, of the same district and State aforesaid, on the fifteen thfl day of July, in the year of our Lord one thousand eightH hundred and forty-three, with force and arms, at AbbevilleH Court House, in the district and State aforesaid, did unlaw-B fully and wickedly carry, convey and deliver, and cause tofl be carried, conveyed and delivered, a certain written cíial-H lenge, of and from the said John Cunningham, to the saidH Thomas C. Perrin, to fight a duel with and against him, the said John Cunningham, which said written challenge is as follows, that is to say :
    “Abbeville, C. H., July 15, 1843. >
    11 o’clock, A. M. ]
    
    
      Sir — Your note of this morning has been received, and does not give the negative to the question addressed you, in my note of 11th inst. I therefore demand of you that satisfaction which is due to a gentleman. My friend Mr. Yancey, who will hand you this note, is authorized to make the necessary arrangements, very respectfully, John Cunningham,” to the great damage of the said Thomas C. Perrin, against the form of the Act of the General Assembly, in such case made and provided, and against the peace and dignity of the same State aforesaid.
    And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said Benjamin C. Yancey, intending to procure great bodily harm and mischief to be done to one Thomas C. Perrin, and to provoke and incite the said Thomas C. Perrin unlawfully to fight a duel, with and against one John Cunningham, the said Benjamin C. Yancey then being resident in and a citizen of the State of South Carolina aforesaid, on the said fifteenth day of July, in the year of our Lord one thousand eight hundred and forty-three, with force and arms, at Abbeville Court House aforesaid, in the district of Abbeville and State of South Carolina aforesaid, did unlawfully carry and convey, to the said Thomas C. Perrin, a challenge to fight a duel with and against the said John Cunningham, to the great damage of the said Thomas C. Perrin, to the evil example of all others, against the form of the Act of the General Assembly of said State, in such case made and provided, and against the peace and dignity of the same State cf South Carolina aforesaid.
    And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said Benjamin C. Yancey, being resident in the State of South Carolina aforesaid, intending to procure great bodily harm and mischief to be done to one Thomas C. Perrin, and to provoke and incite the said Thomas C. Perrin unlawfully to fight a duel with and against one John Cunningham, on the said fifteenth day of July, in the year of our Lord one thousand eight hundred and forty-three, with force and arms, at Abbeville Court House aforesaid, in the district of Abbeville, and State of South Carolina aforesaid, was directly concerned, unlawfully, in carrying to the said Thomas C. Perrin a challenge to fight a duel with and against the said John Cunningham, which said challenge was in writing, in the form of a letter addressed to Mr. Thomas C. Perrin, as follows, that is to say: “Abbeville C. H., July 15, 1843, 11 o’clock, A. M. Sir — Your note of this morning has been received, and does not give the negative to the question addressed you in my note of the 11th inst. I therefore demand of you that satisfaction which is due to a gentleman. My friend, Mr. Yancey, who will hand you this note, is authorized to make the necessary arrangements, very respectfully, John Cunningham,” to the great damage of the said Thomas C. Perrin, to the evil example of others, against the form of the Act of the General Assembly of the State of South Carolina aforesaid, in such case made and provided, and against the peace and dignity of the said State aforesaid.
    J. N. Whitner, Solicitor.
    
    The defendant Yancey moved the Court of Appeals to arrest the judgment, upon the following grounds:
    1. Because it is not averred in the indictment that John Cunningham, the alleged challenger, was a citizen or resident of this State at the time of the alleged challenge.
    2. Because it is not averred in the indictment that the alleged challenge was a challenge to fight a duel within this State.
    3. Because the note from Mr. Cunningham to Mr. Perrin, alleged in the indictment to be a challenge, is not a challenge, according to the ordinary import and meaning of the words in which it is expressed ; and because it is not averred in the indictment that those words were there used and employed in any other sense.
    The presiding Judge did not consider the two first grounds well founded, and overruled them in his instructions to the jury. The 3d ground makes a question of fact, which was left to the jury, with an opinion from the court, that the character of the paper was pretty well determined by the manner in which it was regarded by the party to whom it was directed.
    The jury found the defendant guilty.
    
      Carroll, for the., motion,
    cited and commented on the Act of 1812, (5 Stat. 671.) Cited, further, 2 Hawkins’s P. C. 270-1; 1 Chitty C. Law, 209 ; 1 Tread. Con. Rep. 107; 2 M’Cord, 284.
    Perry, for the motion in arrest of judgment.
    The Legislature has no right to impose a penalty for fighting a duel in another State. Every government must punish, according to its own laws, for offences committed within its own territory. The citizens of a State may be punished for departing the State with the intent to fight. But they are not answerahle to their own State for an offence committed abroad. If they were, they might be punished twice for the same offence. Such a rule would be contrary to all notions of right and reason. It would be wanting in courtesy to foreign powers, and contrary to international law.
    The Legislature never contemplated any such thing. They have expressly used the words “ to fight a duel within this State.” The Act will bear no other construction. But if it did' admit of two constructions, the court is bound to construe it strictly and rigidly. It is a highly penal act, subjecting the offender to twelve months imprisonment, and a fine of two thousand dollars. It also deprives him of the right of pursuing a profession to which he may belong.
    As to penal statutes being construed strictly, see 1 Black. Com. 88 ; 7 Bacon Áb. 462 ; Baldwin’s C. C. R. 316 ; 2 Cowen, 419 ; 6 Cowen, 567.
    The indictment should have alleged it was a challenge to fight a duel within this State, according to the words of the statute. Indictments on statutes must pursue the statute strictly. If they do not, a motion in arrest of judgment will prevail. See the following authorities : 1 Chitty’s Crim. Law, 281, 282 and 283 ; State vs. Petty, State Reports, 59; State vs. Foster, 3 M’Cord, 444 ; State vs. Raines, 3 M’Cord, 533 ; State vs. O’Manon, 1 Bailey, 144 ; State vs. Cheetwood, 2 Hill, 459 ; State vs. Evans, 3 Hill, 190 ; State vs. Le Creux, 1 M’Mullan, 488; State vs. Clements, 1 Spears, 48.
    
      Statutes against common right and common reason are void. Haw vs. Me Claws, 1 Bay, 93 ; Boiomcm vs. Middleton, 1 Bay, 252. This statute against duelling would have been such, had it contemplated the punishment for duels fought out of the State. As it is, it was in opposition to public opinion, and must always prove ineffectual. The evil complained of cannot be suppressed by human laws, until the nature of man is changed. The only thing which can suppress it, is the mild and forgiving religion of our Lord and Saviour. He who disregards the laws of God, and is willing to give up life itself, will hardly be restrained by the fear of human punishment.
    
      Whitner, Solicitor, contra.
    The construction contended for would make the statute a nullity.
    The statute, though to be construed strictly, is yet to be construed so as not to defeat it.
    The words, “ within the State,” qualify the two members of the sentence. “ Such,” designates the kind of challenge meant.
    “ Any person resident in or being a citizen of the State,” is not a part of the definition, but only a designation of the persons amenable to the jurisdiction ; “of the same district and State aforesaid,” is a description of the person, but yet may satisfy the Act. Whether the paper was a challenge, was a question for the jury.
   Curia, per

O’Neall, J.

These cases arise under the Act of 1812, and depend upon its construction. They make one ground common to both, which is that “the challenge, to be punishable, must be to fight a duel within this State.” 5th Stat. at Large, 671. This ground will be first considered and disposed of, as its decision will decide Cunningham’s case.

The Act of 1812 was not very artificially drawn. It was the first attempt made , in the Legislature of South Carolina to arrest the practice of duelling. It of course encountered many covert prejudices, and the pens most skillful in the preparation of Acts of the Legislature were withheld from the noble and philanthropic service which was then tendered to them. The work was left to be perfected by a physician unskilled in the law, but his heart bled for suffering humanity, and with that singleness of heart and purity of purpose, which never fails to do good, Dr, Philip Moser originated, sustained and carried through the Act of 1812.

An Act thus originating, may well be supposed to be deficient in technical precision ; but it is our business to see that it is so construed, “ut res magis valeat quam, pereat”

The Act is entitled, according to its intent, “to suppress the pernicious practice of duelling,” and although it is high - ly penal in its provisions, and is therefore to be construed strictly, yet by a strict construction, I do not understand that we are to hunt for some recondite meaning of its words or provisions, which in nine cases out of ten will make it a perfectly dead letter. Instead of that, it is to be construed fairly, so as to promote the intent of the Legislature, and yet not subject any one to punishment by a strained construction. According to this rule, duelling is to be suppressed, if the Legislature has used such words, and made such provisions, as can fairly have that meaning and effect.

The Act makes four distinct offences : 1st; To fight a duel. 2d. To send, give or accept a challenge. 3d. To cause a challenge to be sent, given or accepted; and, 4th. to bear such challenge as a second, or to be in any way concerned in any duel fought or to be fought.

The first provision is, “if any person resident in or being a citizen of this State, shall fight a duel.” This describes the offence prohibited; it is, “to fight a duel;” but to be punishable by our law, it must, according to the course of the common law, be a duel fought within the State. The words of the enactment are broad enough to make a duel fought any where, by a citizen and resident of this State, punishable, and perhaps the generality of this provision was intended to be met by the disfranchisement with which offenders were proposed to be visited'. For the present, however, it is unnecessary to look further at that provision, it will, hereafter, in some of its incidents, be considered more particularly.

The second offence under the Act is thus described, “if any person resident in or being a citizen of this State, shall send, give or accept a challenge to fight a duel within this State.” It is contended that the words “within this State” apply to the duel to be fought, and not to the sending, giving or accepting the challenge. But this, I think, is. plainly a false reading of the Act. When the intent is plain, to effect it we are at liberty to transpose words and even parts of sentences. Here it is only necessary to place “within the State,” in the beginning instead of at the end of the clause, and the whole difficulty is obviated. The clause should read, “if any person resident in or being a citizen of this State, shall, within this State, send or give or accept a challenge to fight a duel.” This construction sustains the purposes of the Act, is not at war with the grammatical construction, and is the precise popular meaning of such a sentence as this clause in the Act of 1812. It is, therefore, legitimate and consistent with legal rule, that it should be read as I have suggested.

In addition to this, it may be remarked that such a construction is aided by the third provision, which declares if any person resident in or being a citizen of this State, shall cause any such challenge to be sent, given, or accepted, within this State, or within the limits of the United States, he shall incur the penalties of the Act. Any such challenge, means plainly a challenge to fight a duel. Taking this as the clear meaning of the words used, it follows that in terms the Legislature have declared the causing of a challenge to fight a duel, to be given, sent or accepted, within this State, to be an offence punishable by the Act. This being so, it would seem to follow, that two offences differing in only a slight shade in the manner of perpetration, would not be distinguished by any thing else in the definition.

The next ground to be considered is the first in Yancey’s case. It raises the question, do the words “any person resident in or being a citizen of this State,” apply both to the bearer of the challenge, and the challenger, so that in describing the offence of the former, the latter should be described as “resident in or being a citizen of this State'?”

The first answer to this question, and that which is most satisfactory to my mind, is that the words quoted are not a part of the statutory definition of the offence, and need not be set out in the indictment at all. For they are merely descriptive of the person who shall be amenable to our courts for violating this Act. The act to be done, fighting a duel, sending or bearing a challenge, is the offence pointed out. As well might it be said that the words “any free white person,” being a distiller, vendor, &c. were parts of the definition of the offence created by the Act of ’34; yet it was held-in the case of the State vs. Schroder, 3d Hill, 64, that it was wholly unnecessary to set out that such distiller, vendor, <fec. was a “free white person.” It was said in that case upon the point under consideration, “the words objected to, do not enter into the statutory definition of the offence, they are merely descriptive of the person by whom the offence may be committed, and unless there is some ■uncertainty whether the defendant be liable to receive judgment on conviction, there can be no necessity to use them.” According to this rule, and my previous reasoning, there is no necessity to charge in the indictment, that B. C. Y. being resident in and a citizen of the State of South Carolina, did bear a challenge to fight a duel, from J. C. a resident in and being a citizen of the State of South Carolina. It is sufficient to describe the parties without such addition. But according to the authority cited, there is a test which at once removes all difficulty. After conviction, is there any uncertainty whether the defendant be liable to receive judgment'? Here, as well as in that case, there is no uncei’tainty upon conviction, that the defendant is liable to judgment. For if the non-residence in this State, or want of citizenship, of his principal, had appeared in proof, it would have made the question, in fact, whether he could be convicted of bearing the challenge of one not amenable to our jurisdiction; but after conviction, the simple inquiry is, is the bearing within this State of a challenge to fight a duel, by one who, by his plea of not guilty, has admitted the jurisdiction and offence, punishable by our Act'? The bearing within this State, of a challenge to fight a duel, no matter by whom sent, is an offence. For the Act not only declares the seconds of a resident in or citizen of this State, who sends a challenge, to be liable to punishment, “but all and every other person or persons directly or indirectly concerned in fighting any duel, or sending, giving, accepting or carrying any such challenge.”

But if the words “resident in or being a citizen of this State,” are at all to be noticed in framing an indictment, it can only be necessary to use them as applying to the person charged with the commission of the offence presented by the indictment. For if it be alleged, as is done in the indictment before us, that the defendant, a resident in and being a citizen of this State, did, in this State, bear a challenge to fight a duel, it states a violation of the provisions of the Act of 1812, according to its letter, ana hence judgment must follow.

The 3d ground of Yancey’s motion, (hat the challenge set out, is not a challenge to fight a duel, cannot help him. For it is expressly charged to be a challenge to fight a duel. Whether it was so or not, was a question for the jury.

When they, by their verdict, found that it was, the allegation in the indictment is to be taken as true, and then upon its face enough appears to warrant judgment.

The motions are dismissed.

Richardson, Evans and Bdtler, JJ. concurred.  