State v. Farrier, 8 N.C. 487, 1 Hawks 487 (1821)

Dec. 1821 · Supreme Court of North Carolina

8 N.C. 487, 1 Hawks 487

State v. Farrier.

From Johnstoii.

la an indictment for sending a challenge, it is not necessary to set out a copy of the challenge ; and if an attempt be made to ’set out in the indictment a copy, and it varies slightly from the original, as by the addition or omission of a letter, no ways altering the sense, sem-ble, such variance is not fatal, and, after verdict, it is cured 'by the act of 1811.

A challenge to fight a duel out of the State is indictable, for its tendency is to rouse the passions, and produce an immediate breach of the peace.

This was an indictment for sending a challenge to fight a duel, tried below before Nash, Judge. The indictment was as follows:

“ The Jurors for the State upon their oath present, that James Farrier, late of the county of Johnston, attorney, on the twentieth day of September, in the year of our Lord one thousand eight hundred and twenty, with force and arms, at and in the county of Johnston, wickedly and maliciously intending and designing, as much as in him lay, not only to disquiet and terrify one John M’Leod, but also the said John M’Leod, maliciously, violently and wickedly to kill and murder, did unlawfully and wickedly provoke and excite the said J ohn M’Leod to fight a duel against him the said James Farrier, with pistols, or some other dangerous and mortal weapons; and that he the said James Farrier, a certain challenge, in the name of the said James Farrier, in the form of a letter to the said John M’Leod directed, did then and theFe maliciously write and cause to be written ; which said challenge, so as aforesaid written and directed, he the said Farrier afterwards, to-wit, on the said twentieth day of September, in the year of our Lord one thousand eight hundred and twenty, at and in the county of Johnston aforesaid, maliciously and wickedly, to the said John M’Leod did send and contrive to be delivered, and cause to be sent and delivered, and which said challenge in the form of a letter is as follows, that is to say : — “ Smithfield, Sept. 20, 1820. Mr. John M’Leod — Sir : Since our last interview, in which we talked over the differences between us, and in which you called on me to explain why 1 should say that I would as soon vote for Jim, the barber, as you — X say, since then I have seen Gen’l Bryan, of this county, who informed me that you, in explanation of the cause of this difference between us, had said, that it was likely owing to a very unpleasant request that you had made to me at the instance of your ward, to forsake your house ; and your reason for doing this was, as defeated lovers sometimes prove desperate, you thought there was some danger to be apprehended from me ; and if X be the defeated lover, there really will be some danger to be apprehended, and your words verified, but not in the sense you intended. Instead of my revenge being directed against an innocent lady in the exercise of her right, it shall be directed towards a man who has thus causelessly thrown a reproach on the character of the innocent, in order to palliate his own improper conduct. You say that your ward imagined to herself that I had a dirk, and intended making an attack on her person : permit me to tell you, that 1 do not believe your ward ever immgined any such thing, neither do I believe that she ever told you so. So this story about the dirk never existed any where else than in your own imagination, for some cause best known to yourself; and remember, he that carrieth a dirk in his imagination, car-rieth poison in his heart. X once cherished the hope that this storm of dummy, this spirit of evil reports which has so long raged between you, your family, and myself, would ere this have cea'sed; but all hope is now lost of there ever being a revival of our former intimacy. The affairs as they now stand between us, may be worse, but I will assure you there is little probability of there being better. Since my memory, my character has never suffered such a gross, unjustifiable and unprecedented attack. It may be credited by those who are unacquainted me, but those who are acquainted with my former conduct, will give it but little credit; and if it is not credited by a solitary person, my feelings will not permit me to pass it over in silence, and let it sink into the tomb of oblivion without revenge. I therefore ask of you to render that opportunity of redress which one gentleman is bound to render to another, whenever he thinks himself aggrieved ; and in making this my request, you are not to presume thatl acknowledge you a gentleman, for I do not consider you as such, neither do I believe you are known to the world in that character ; yet for the purpose of .redressing my wounded feelings, I am bound to ask you once for your lifetime to act the part of a gentleman, in accepting this my invitation to leave the State, in respect to the peace of North-Carolina. — Jas. Fauhieh. N. B. This letter will be lodged in David Tompson’s store, for your reception, and if handed to you, the person handing of it will be unacquainted with its contents. The calls of my professional affairs prevents me from being in town for a few weeks; my friend Doc. White, who will call on you for an answer to this letter, will do me the favour of receiving any communication from you yourself to me, during my absence.” To the great damage of the said John M’JLeod, to the evil and pernicious example of all others in the like case offending, contrary to an act of the General Assembly in such case made and provided, and against the peace and dignity of the State.”

On the trial, the introduction of the original letter was opposed, on the ground of variance from the letter as set forth in the indictment: the variance consisted in the words differences instead of difference, immgined for imagined, clummj for calumny, and there for their. The objection was overruled, and the letter received. It was then contended, that the letter set forth was not a challenge to violate the peace of this State; and therefore, without such intention, the Defendant was not guilty of the crime stated in the indictment. The Court instructed the Jury, that under the law of the State, the act of sending a challenge to fight a duel in another State would render the Defendant guilty of the charge in this indictment. The Jury found the Defendant guilty; a new trial was refused, and from the judgment pronounced, the Defendant appealed.

Tayior, Chief-Justice,

delivered the Court’s opinion:

The Defendant was indicted for sending the prosecutor a challenge to fight a duel. The act of 1802, which alters the Common Law punishment, does not change the nature of the offence which consists in sending a challenge; either by word, or by letter, to fight a duel. Upon the trial of the cause, the letter, containing the supposed challenge, was offered in evidence, but objected to by the Defendant, on the ground of -several variances from the statement of it in the indictment; it was, however, admitted by the Court, and proved, and read to the Jury. It was further insisted, in behalf of the Defendant, that the letter was not a challenge to violate the peace of this State; and that without such intent, the Defendant could not be guilty of the offence charged in the indictment. To these objections, which appear on the record, it has been added in the argument here, that the indictment charges the Defendant with an intention to provoiie the prosecutor to fight a duel with pistols, or some other dangerous and mortal weapons, whereas, the letter specifies no weapon ; and if its real meaning were to fight witli weapons, the recital of the letter should have been accompanied with proper inuendoes to enable the Jury to affix a judicial sense to it. The same observation has been applied to the letter in relation to its being a challenge to fight, and to leave the State, a construction, it is said, which can only be put upon it, by understanding something not expressed in direct words.

1. The fact to be enquired into by the Jury, was, whether the Defendant sent a challenge to fight a duel. The evidence relied on to establish the fact, was the letter written by the Defendant. But if no letter had been written, the fact might have been proved by other means, since neither the Common Law, nor the statute, requires a challenge to be in writing, in order to constitute a crime for sending one.

To recite the letter in the indictment, is to set forth the evidence by which the fact is meant to be proved, and does not, upon principle, seem to be more essential than, in case of a verbal challenge, it would have been, to set out the particular language in which the challenge was created. The law requires no more than that a complete offence should be shewn in every indictment, so as to enable the Court to give judgment upon it, in case a demurrer were joined, or a writ of error brought. Upon this principle it is, that indictments for sending threatening letters must set out the letters themselves, in order that the Court may see ^whether they are of that kind which the statute renders criminal: the same rule extends to forgery; the instrument charged to be forged, must be set out verbatim, in order that the Court may see that it is such an instrument as the prohibition of the law extends to. But if the Defendant had been situ-ply charged with sending a challenge to fight a duel, without any recital of' the letter, the introduction of which, as evidence, however, had satisfied the Jury of the fact, and enabled them to pronounce a verdict of guilty, the Court must have seen, upon the face of the indictment, that a crime had been committed, and the specific degree of it pointed out, so as to enable them to apply the punishment annexed by the act of 1802. Supposing, however, that the recital of the letter is not merely a compliance with custom, but required by principle, it will admit of serious doubt whether the variances are fatal, even according to the English authorities, which, Lord Mansfield says, have been carried to a great degree of nicety indeed. The rule laid down in Dr. Drake’s case, (2 Salk. 660,) was, that if an indictment undertakes to set forth the tenor of an instrument, though a literal variance is not fatal, yet if the mutilated word makes any other word, as nor for not, it is fatal. This was decided on a special verdict, where the Court, looking at a record, can presume nothing, but is bound to pronounce the abstract proposition of law. But common sense seems to dictate, that the enquiry before a Jury should be, whether the words used in the indictment signify the same thing, although misspelt and mutilated with those in the letter ,• and that a variance, no ways altering the sense of the letter, ought not to be fatal, according to the rule in reciting a statute, where the words sea of Nome were used for see of Rome—(1 Vent. 172. Accordingly, in the King v. Beach, (Cowp. 229,) which came before the Court, on a motion to arrest the judgment on the ground of variance between the indictment and affidavit, the word understood being wrritten without the s, Lord Mansfield concludes his opinion by saying, “ this is a case where the matter has been fairly tried, and where the omission of the letter s certainly does not change the word j therefore, we ave all of opinion that the Jury were very right in reading it understood. jn the case of the King v. Hart, (1 Leach, 172,) it was also left to the Jury to consider, whether the word re-cdvcl, in the indictment, signified the same thing with receive¿ j[n the bill of exchange. The prisoner was convicted, but the judgment was respited, for the opinion of the Judges, who thought it to be a proper question for the Jury. In these cases, the Jury must have judged of the meaning from the contextand the principle upon which they are decided, would seem to warrant the Jury, in this case, to have found as they have done, that differences signified the same thing with difference, immgined, imagined, clumny, calumny, and there, their. In relation to the last word, there is a remark of Powell, Judge, in Holt’s report of Dr. Drake’s case, which is worthy of notice, “ that he did not mark this to be so small a variance of a letter, as if it had happened in false spelling or abbreviation.” Now, if a word should be changed by false spelling into another word, but one having the same sound with that for which it was written, it cannot be difficult to judge from the context what the meaning is, as in the sentence where there is put for their. If, however, these inferences should not be correctly drawn, and the strict rule, laid down in Drake’s case, is to govern where the Jury has passed upon the meaning of a paper, we are satisfied that the act of 1811 applies to the case, and cures the informality. It is a refinement, in the sense of that act, and there does appear to the Court sufficient, in the face of the indictment, to induce it to proceed to judgment. If the Court were not to listen to that act upon this occasion, they might be justly charged-with being deaf to the legislative voice, and permitting that “ disease and reproach” of the law yet to remain, by which a person, convicted of an offence, may seize upon the merest apices litigandi, to evade the punishment.

2. A challenge to-fight a duel out of the State, is indictable for the same reason that a challenge to fight iit the State is, because its tendency is to break the peace of the State. Its natural and probable effect is, to excite instant irritation and animosity, and to rouse the passions to an immediate breach of the peace.