Aulger v. People, 34 Ill. 486 (1864)

April 1864 · Illinois Supreme Court

34 Ill. 486

Charles Aulger v. The People of the State of Illinois.

1. Challenge to fight a duel—what constitutes. The substance of a letter was as follows: “It appears that a knife is your favorite mode of settling fusses, and if that is the case, you can consider it will suit me; you are a coward, and dare not accept the offer. I want the same chance of sharpening my knife; you can set the day, and I will be on hand. Come up like a man ; choose your man, and I will choose mine. This thing must be settled. I am not a coward.” This was not a challenge, but seems rather to invite one.

Writ of Error to the Circuit Court of Tazewell county; the Hon. Jambs Harriott, Judge, presiding.

Charles Aulger was indicted in the court below, for sending a challenge to Asa S. Smith to fight a duel.

Hpon the trial Asa S. Smith, for the prosecution, testified — That, on or about the first day of July, A. D. 1862, he had a difficulty with Charles Aulger; that Aulger struck him, (witness) and that he (witness) then stabbed Aulger. with a knife; and that afterwards, on or about the 8th day of July, 1863, at Tazewell county, he, (witness) received a letter from Aulger, by the hands of Andrew McGee, in the handwriting, and bearing the signature of Aulger. Aulger admitted on the trial, that the letter was written by him.

The prosecution then offered in evidence the letter referred to by witness, Asa S. Smith, as follows, to wit:

July tet 8. 1862.

Mr. Smith

Sir in regard to your prars tha have proven in vain your victo m still lays befoar you yet aman ho professes to be a Cristian and will come home and sharpen up his nife and thake his boys along to see him murder a man do you call that a Cristian act Tour intention was to kill me and the mackinaw to rece mi boda you have sad that it wood be a grate deal beter for you if iwould di and I expect that it wood for if ihad of dide the boys would hugn you without jug or jura a man ho will host of runing his nife into a man shose that he is a Cristian you have said that you expected that you had got your self if into trubell and I would not wonder and you had but it appears that a nife is your faverite of setling fuses and if so bea the case you can con sider that it will sute me you are a Cowerd and darsent to except of the offer, i want the same chanse of sharpening mi nife you can set your day and I will be on bans I new nothing of your intention I did not no that you in tentended to murderme com uplike a man chouse your man an I will chuse mine this thing must be setteld iam not a coward a praing man a good exampell to set before his childrain takethem along to see him murder a man.

Your frend

Charles Aulger

A. C. Smith

You wanted to see me when I was about dead. I súpose you wanted to no if you had finoshed the sole now I will soon be abell to see you and fase you like a man.

The prosecution here rested the case. The defendant then called Doctor J. P. Terrel, who testified that he was a physician, and as such attended on Aulger after he had been stabbed by Asa S. Smith; that the wounds received were very severe, but not mortal; that Aulger was confined to his bed for several weeks; that at the time the letter was written Aulger was still suffering from the effects of the wound received from Smith; that Aulger was then getting better, and was able to sit up occasionally; that Aulger appeared to be very much irritated upon the subject of the difficulty with Smith.

Upon cross-examination of the prosecution, Dr. Terrel stated that he did not consider Aulger insane.

This was all the evidence offered in said cause.

The jury returned a verdict of guilty; a motion for a new trial was overruled, and judgment was entered upon the verdict, imposing a fine of twenty-five dollars upon the defendant, and costs of suit.

The defendant brings the case here upon writ of error, and alleges the verdict is not supported by the evidence.

Messrs. E. C. Ingersoll and S. D. Puterbaugh, for the plaintiff in error:

The letter written by Aulger does not amount to a challenge, but is a mere expression of a willingness to accept one. 2 Arch. Crim. Pr. 236; Commonwealth v. Tibbs, 1 Dana, 524.

Mr. D. P. Jones, State’s attorney, for the people.

Mr. Justice Breese

delivered the opinion of the Court:

There is no evidence in this record that the defendant sent the letter to Smith. He admitted he wrote it, but not that he had sent it. As it was received by the hands of Andrew McGee, he should have been called to prove by what authority he bore it. If by defendant’s authority or at his request, one part of the charge would have been established.

But the foolish and nonsensical letter of the wounded and infuriated German is not a challenge. It is absurd so to regard i,t. It is not an intelligible piece of composition, and instead of giving a challenge, seems rather to invite one from the witness, Smith.

The judgment is reversed and the cause remanded.

Judgment reversed.