cessity, challenges another to single combat with deadly weapons, to redress any injury, real or fancied, to self, there the case is met. Nor, for this purpose, need any set phrase be used. I

4. While only the Actors, who put the Challenge in Definite Shape, are indictable under the Statutes, yet those who by Insults provoke a Challenge are indictable at Common Law.

§ 2680. Suppose a duellist, desiring himself to escape the penalties of the statutes, succeeds by skilful insults in provoking another to challenge him, is he to escape harmless? It would be a gross injustice in such a case to punish the challenger, who is really the assailed party, and to let the challenged party, who is really the assailant, go free. Under the statutes, the latter may not be reached;m but the common law here, as elsewhere, penetrates to the merits, and holds that he who thus designedly provokes a challenge is guilty of an indictable offence. n

5. No Defence that Duel is to be fought extra-territorially. § 2681. Where a challenge is given in one state to fight a duel in another state, the offence of challenging is continuous, and may

1 State v. Farrier, 1 Hawks, 487; State v. Taylor, 1 Tread. 107; 2 Brev. 243, and cases cited in last section.

m Com. v. Tibbs, 1 Dana, 524.

n Post, § 2691; 1 Gabbett Crim. Law, 66; 1 Hawk. P. C. § 18, 19; 1 Deacon Crim. Law, 219; Boothby Crim. Law (ed. 1854), 60. See R. v. Rice, 3 East, 581; R. v. Phillips, 6 East, 464; State v. Taylor, 1 Constitutional Reps. 107; R. v. Cuddy, 1 Carrington & Kirwan, 210; R. v. Young, 8 Carrington & Payne, 103; State v. Farrier, 2 Hawks, 487.

purpose of provoking another to send a challenge, where the tendency is direct and manifest, is equally indictable, even though the provocation should fail in its object. And no previous misconduct on the part of the individual challenged or provoked will form a defence against such indictment, so as to entitle the defendant to an acquittal, although it will weigh with the court in determining the sentence. Where, indeed, a party challenged applies to the court of queen's bench for a criminal information, that extraordinary remedy will not be granted, if he shall appear to have given provocation to his adversary, but he will be left to indict at the assizes or session. The punishment, on conviction, is fine and imprisonment, or both, at the discretion of the court."

be tried in either jurisdiction, o though if the challenge be in writing, it may be expedient, in the jurisdiction of consummation, to charge the offence as an oral renewal. Clearly a challenge to fight in another state is penally cognizable in the state in which the challenge is issued. p Nor is it necessary to prove that the challenge ever reached its destination. q

III. INDICTMENT.

§ 2682. A written letter, if merely the inducement or introduction to an oral communication, conveying a challenge, need not be set forth. Thus where T., in a letter to N., used expressions implying a challenge, and by a postscript referred N., the challenged party, to one H. (the bearer of the letter), if any further arrangements were necessary, it was held that the letter was only evidence of the challenge, and need not be specially pleaded; and that N. might give testimony of the conversation between H., the bearer of the letter, and himself. Even when a statute makes sending a challenge indictable, it is not necessary to set out a copy of the challenge; 8 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 way altering the sense, it seems such variance is not fatal, and, after verdict, it is cured. t

§ 2683. Where a statute makes it a misdemeanor to challenge another, the indictment must charge that the defendant challenged; it is not enough that he wrote, sent, and offered a paper he intended as a challenge. u

Expressing a readiness to accept a challenge does not amount to challenging under the statute. v

§ 2684. An indictment on the Massachusetts Stat. 1849, c. 49, § 1, is sufficient, which alleges that the defendant, at a time and place named," by and in pursuance of a previous appointment and arrangement made to meet and engage in a fight with another person, to wit, with one J. S., did meet and engage in a

o Ante, § 210 a.

p State v. Taylor, 3 Brev. 243; 1 Tr. Const. Rep. 107; Ivey v. State, 12 Alab. 276; State v. Farrier, 1 Hawks, 487; R. v. Williams, 2 Camp. 506.

q R. v. Williams, supra.

r State v. Taylor, 1 Tread. 107.

s Brown v. Com. 2 Va. Ca. 516. t State v. Farrier, 1 Hawks, 487. See Heffren v. Com. 4 Metc. (Ky.) 5; Ivey v. State, 12 Alab. 276; Com. v. Tibbs, 1 Dana, 524.

u State v. Gibbons, 1 Southard, 40. v Com. v. Tibbs, 1 Dana, 524.

fight with the said J. S.," without further charging what previous appointment or arrangement was made, or when or where, or by whom, or further setting out the defendant's acts. w

IV. EVIDENCE.

§ 2685. Proof of challenge. No set phrase is necessary to constitute a challenge to fight with deadly weapons.

The note or letter, sent by one party to the other, and parol testimony, in explanation, are admissible as evidence. y

§ 2685 a. Interpretation for jury. The jury is to decide, under advice of the court, whether, from all the circumstances, there has been a challenge within the statute. z

Admissions of Seconds.

§ 2685 b. Concert being proved, it need scarcely be added that the admissions of a second are evidence against the principal; and vice versa. a

w Com. v. Welsh, 7 Gray, 324.

x Com. v. Hart, 6 J. J. Marshall, 121; Com. v. Tibbs, 1 Dana, 524; State v. Perkins, 6 Blackf. 20. y Ante, § 2682.

z Com. v. Hart, 6 J. J. Marshall, 121; State v. Strickland, 2 Nott & McC. 181.

a State v. Dupont, 2 McC. 334.

845

§ 2686. AN indictable attempt has been defined to be a deliberate crime which is begun, but, through circumstances independent of the will of the actor, left unfinished. a More strictly it is such an intentional, preliminary, guilty act as will apparently result in the usual course of natural events, if not hindered by causes outside of the actor's will, in a deliberate crime.

By the English common law it is a misdemeanor unsuccessfully to attempt a felony, b or a malicious misdemeanor, whether common law or statutory.c Hence it is an indictable attempt falsely a See Berner, Lehrbuch, § 166.

b 1 Hawk. P. C. 55; R. v. Higgins, 2 East R. 21; R. v. Kinnersley, 1 Strange, 196; State v. Boyden, 13 Ire. 505; Hackett v. Com. 3 Harris, 95; Griffin v. State, 26 Georg. 493; Randolph v. Com. 6 S. & R. 398; State v. Danforth, 3 Conn. 112; Com. v. Barlow, 4 Mass. 439.

c R. v. Higgins, 2 East R. 8; R. v. Phillips, 6 East R. 464; R. v. Chapman, 2 C. & K. 846; 1 Den. C. C. 432; R. v. Williams, 1 Den. C. C. 39; State v. Maner, 2 Hill S. C. 453; R. v. Goff, 9 Up. Can. C. P. 438; R. v. Watson, 2 T. R. 199; R. v. Roberts, Dears. 539; 33 Eng. Law & Eq. 17; Com. v.

to accuse another of crime, if any step be taken which, in the usual course of events, would lead to a conviction, even though the accusation take not the form of libel. In this view the fabrication of mechanical inculpatory evidence is a substantive misdemeanor. cl

II. FROM WHAT INDICTABLE ATTEMPTS ARE TO BE DISTINGUISHED.

1. Illegal Purposes even though expressed in Words.

§ 2687. Mere words, unless they are libellous, seditious, obscene, or provocative of breaches of the public peace, are not the subject of penal judicial action. Even when they express illegal purposes, they are often merely speculative; are uttered often by weak men as braggadocio; and always belong to a domain which criminal courts cannot invade without peril to individual freedom, and to the just and liberal progress of society. This liberty to express thought is recognized in all systems of civilized jurisprudence. Cogitationis poenam nemo patitur," was a maxim of the Roman law, d which is now accepted as part of the judicial system of all Christendom, and is adopted in the codes of the most arbitrary nations of Europe. e And by the Roman common law, even talking about a criminal intent, and thus giving to it public expression, does not constitute, except in treason, an attempt.f

66

Kingsbury, 5 Mass. 106; Ross v. Com. 2 B. Monr. 417; People v. Washburn, 10 Johns. R. 160; State v. Murray, 15 Me. 100; Com. v. Harrington, 3 Pick. 26; State v. Keyes, 8 Ver. 57; Com. v. Smith, 54 Penn. R. 209; Demarest v. Haring, 6 Cow. 76.

cl R. v. Simmons, 1 Wils. 329. d L. 18. D. de Poenis, xlviii. 19. e See this shown in Holzendorff's Ency. "Versuch."

f Very curious citations on this point are given by Geib, Lehrbuch, &c., § 99, among which are the following: Romagnosi Genesi del diritto penale, p. 221, 222. Tentare un delitto, non è soltanto pensarlo, o deliberarlo; o vero dire di averlo pensato, o deliberato; ma bensì egli è porre in opera

tutto quello che ne può ottenere l'esecuzione. . . . Dunque il palesare il pensiero e la deliberazione di un delitto, cui però si è desistito di mandare ad esecuzione, ovvero la jattanza di volerlo effetuare, senza però che s'intraprenda nulla in fatto colle azioni fisiche ed esterne, sono cose che non si possono veramente riguardare come attentati, nè si potrebbero punire come tali. Filangieri Scienza della legislazione, iii. 37. (T. iii. p. 326, 327.) Carmignani Teoria delle leggi ii. p. 302-304. Boehmer, Meditt. in C. C. C. Art. 178. § 3. Wintgens Diss. cit. p. 19-24. 81. Lelièvre Comm. cit. p. 713. 26-28. The same view is expressed by Willes, J., in R. v. Mulcahy, L. R. 3 H. L. App. 317.