State v. Perry, 50 N.C. 9, 5 Jones 9 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 9, 5 Jones 9

STATE v. ISRAEL PERRY.

If one person by such abusive language towards another as is calculated and intended to bring on a fight, induces that other to strike him, he is guilty, though he may be unable to return the blow.

Indictment for an affray, tried before Caldwell, J., at the last Fall Term, of Currituck Superior Court.

The facts are, that the defendant and one 'Whitehall met near the court-house of Currituck county ; the defendant asked Whitehall to walk aside with him, saying that he wished to have a friendly talk with him; Whitehall did so, whereupon the defendant immediately commenced abusing the other in a violent manner, accusing him of stealing cattle and mismarking hogs, and said that he knew enough against his wife and daughter to sink them into hell. Whitehall thereupon pulled off his coat, saying as he did so, that he could stand every thing but a charge against his family. lie then struck the defendant a blow, when the bystanders interfered so that no blow was struck by the defendant Perry, and no further conflict took place.

The charge of the Court, as to the defendant Perry was, that if his abusive language towards his adversary, as proved by the witnesses, was calculated and intended to bring on a light, be was guilty, though he did not strike a blow and had been knocked down.

The defendant’s counsel excepted to the charge of his Honor.

Yerdict for the State. Judgment and appeal.

Attorney General, for the State.

Heath, for the defendant.

Battle, J.

An affray is defined to be the fighting of two or more persons in a public place to the terror of the citizens ; State v. Allen, 4 Hawks’ Pep. 356 ; State v. Woody, 2 Jones’ Pep. 335. From this definition, it seems to ns to be plain, that if one person, by such abusive language towards another as is calculated and intended to bring on a fight, induces that other to strike him, he is guilty, though he may be unable to return the blow. He is undoubtedly the immediate cause of the breach of the peace, and is morally the more guilty of the two ; and we are not aware of any principle which prevents the law from regarding him as a criminal. The only argument urged in his favor is, that the use of words alone, however insulting to his adversary, is not a misdemeanor, and that being innocent up to the time when he is stricken, he cannot be made guilty by the sole act of such adversary. The argument is plausible, but will not bear the test of strict examination. If one man by words, or signs, instigates another to strike a third, lie is clearly guilty of an assault and battery the moment the blow is stricken, though no offence is committed until that is done. That case is like the present in principle, and we cannot distinguish the one from the other. An affray is denounced by the law as a misdemeanor, because it is a breach of the peace ; and, surely, he who intends to provoke it, and does provoke it, ought not to escape the necessary consequence of his guilty intention. The charge of his Honor in the Court below was correct, and the judgment must be affirmed.

Pee Cueiam, Judgment affirmed.