#### *The State*v. *Samuel Sumner.*

Defendant and one Bettes fouglit in the streets of Spartanbnvgh, *sedente curia*and were ordered, by the Presiding Judge, to be indicted, and they were indicted for an affray. Bettes pleaded guilty. Sumner insisted that he acted in self-defence, having, at most, given,provocation by words only to Bettes, and having been first stricken by him. There was evidence that the parties fought, not upou any cause of quarrel, but as pugilists. Sumner expressed himself as disinclined to fight within the corporate limits; yet he gave provoking language to the other, was stricken by him, and they had a long and severe fight, to the disturbance of the Court. Held, That both were liable for an affray, and that the instruction was right; that, if Sumner was willing to fight, and merely prepared to go out of the corporate limits for that purpose and provoked the other to strike him, he was guilty of an affray, although first stricken.

*Before*Withers, J., *at Spartanburgh, March Term,*1850.

The notes of evidence hereto appended will show the testimony, and constitute a response to so many of the grounds of appeal as relate to the proof.

This defendant was indicted for an affray, by order of the Judge presiding, when a fight took place between him and one Bettes, the latter of whom had pleaded guilty at a former term.

The defence was placed on the ground, that the fight was forced upon Sumner, at the place and time, by his adversary; that Sumner refused to fight in the corporate limits, and was acting only in self-defence against an assailant.

The Circuit Judge charged the Jury, distinctly,.that if the defendant was really acting in self-defence against an attack that he had not provoked, he was not only not guilty of an affray, but no offence at all. But, if he was willing to fight, and merely preferred to go out of the corporate limits for that purpose, and provoked the other to strike him, then he was guilty of an affray, whether stricken first or not. His Honor illustrated his meaning thus: “If two men previously agree *54t0 fight, on a given day, in a public place, such as that where ^ggg parties fought, and, upon meeting, entered into a quar-which actually led to a fight, they were guilty of an affray, no matter which gave the first insult, in language or by a blow; that one might be guilty of murder, though first stricken, provided he procured the assault to be made, to the end that he might carry out a previous design to kill, and did actually accomplish the purpose.”

The Jury found a verdict of guilty.

EVIDENCE FOR THE STATE.

*Robert Owens.*— Defendant and Bettes fought in 100 yards of the Court House, during March Court, of 1849. 'Thomason told them, when quarreling, to leave. Defendant said he did not intend to fight in the street; but, if Bettes would go out with him, he would fight. Bettes then told him he was a damned rascal, and the other gave him the damned lie, once or twice, and Bettes struck, and they fought — long fight— large crowd around — good deal of confusion. Don’t know who began the quarrel before Thomason ordered-them off.

*Robert Rollins.-*— -The parties fought on Wednesday. *(Question*— Were you present, on Monday, when a conversation occurred between Sumner and Bettes ? — objected; held competent.) I. was. They conversed about a counterfeit dollar. They then quarrelled, and appeared like fighting then. Sumner appeared willing to fight, and offered to go out that night and fight, but did not. On Wednesday, I came up where they were. Sumner gave Bettes the dam’ed lie, several times. Bettes told him not to give him the darn’d lie; being repeated, Bettes struck at him, and they fought. On Monday, one said he would whip the other; the other gave him the darn’d lie, and so backwards and forwards. I think Bettes told him he could whip him, if he would go into a ring, and Sumner said that was what he wanted. It was a long fight, on Wednesday, and much uproar. The Sheriff separated them. Understand Sumner lives in Union.

M On Monday, as I understood, one Duncan had given an Irishman a dollar, as he alleged. Bettes lives in Spartan-burgh, and is reputed much of a man.

*Sheriff Poole.*— I was Sheriff, at March Court, 1849. The row interrupted proceedings in Court, and I was ordered to arrest the parties, and I found Bettes and Sumner engaged, arrested them, and brought them into Court.

M On Monday evening, near my house, the parties had an interview. I told them they must not fight there. I talked to them both, and asked what the fraction was ; both said they had nothing against each other, and they both took my council to drop it, and appeared to be friendly. (Do you remember that Sumner said, when he was arrested, he *55had fought in self-defence? Held incompetent.) Bettes is a powerful man, but, I think, peaceable. On Monday evening, by-standers seemed more anxious for the fight than the parties. Suppose Sumner peaceable.

*J. W Quinn.*— Parties were quarrelling when I got up— had gone up the street. The rascal and lie were bandied back and forth several times. Bettes called him a darn’d rascal, and he was a coward if he took it. Sumner told Bet-tes he was a darn’d liar several times; Sumner said he did not wish to fight in the streets; but, if Bettes would go out-of the corporat on, he would fight him. Both agreed to drop it, on Monday, at Poole’s.

*J. H. Waddell.*— Saw parties quarrelling as I walked up the street, and soon they fought.

X I think Sumner said he did not want to fight there. When they were ordered off, they both started, and soon they stopped, and Bettes called Sumner a darn’d rascal, and Sumner replied he was a darn’d liar.

*Hugh Holt.*— I saw the parties meet on Wednesday. — I was eight or ten steps off. It had been surmised that the two bullies were going to fight. When they met, they wrangled awhile. Sumner stepped out in the piazza, and Bettes followed. Sumner called Bettes a darn’d liar. I don’t know what originated the quarrel, but something was said about a counterfeit dollar.

*John Epting.*— The first I heard, Sumner said to Bettes, if he would go out of the corporation, he would whip him. Bettes told him he was a rascal, and that was more than any man would take. Sumner told him he was a liar, and the fight took place.

The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds, viz:

1. Because the whole of the testimony that was given on the part of the State, the defendant having offered no evidence, clearly showed that the defendant refused to fight in the village, even after he was called a coward by David Bettes, and did not offer to fight until he was stricken by his adversary.

2. Because the defendant, in the whole matter, acted in self-defence, and cannot, by law, be convicted of any offence for what he then did.

3. Because the verdict is not only unsupported by the evidence, but is, in fact, directly contrary to the whole of the testimony, and must have been found under the influence of some vague and blind conjecture, entered into and acted upon by the Jury, in making up their verdict.

4. Because his Honor erred in his charge to the Jury, in saying to them: “If you believe that Sumner was, in truth, *really willing*to fight, though he had refused to fight, then *56they might find him guilty, or if they thought he had, by *his language*.and conduct, provoked the fight — if the other had, in truth, struck him the first blow, still they might find him guilty.”

*5:*Because neither the Court nor the Jury have any power to act upon any conjectural guilt of the party, not sustained by the evidence.

6. Because it was gravely and earnestly urged by the solicitor, that any one who, in this country, gave another the darn’d lie, might be lawfully stricken, and this error was not corrected by his Honor.

*A. W. Thomson*for the motion.

*Whiiner,*solicitor, contra.

*Curia, per*Withers, J.

Text writers on Criminal Law define an affray to be the fighting of two or more persons, in some public place, to the terror of the people.' If the fight be in some private place, it is no affray, but an assault.

Some stress has been laid upon the idea that there was no proof that the people were terrified. The existence of terror among the people, as a matter of fact, does not require proof, and so is the law in the case of riot. Suppose the fight be in a private place, any degree of terror that may be proved, among any number of persons, would not make it an affray. It must be charged to have been in a public place, and proved accordingly, and, it is presumed, the inference of law will be strong enough to import whatever of terror may be a necessary ingredient. In this case, the fight of the defendant and his adversary disturbed the Circuit Court, then in session, and the indictment was ordered by the Presiding Judge. In a case of riot, in answer to an objection that the charge was not laid *in terrorem populi,*Lord Holt, speaking-for the whole Court, said, “ This information is well without it, for those riots which are riots without any act done, as going armed, &c., it must be said *in terrorem populi ;*but, when an act is done, it is otherwise.” His doctrine has been aPProvec') M Massachusetts, in the case of *Hamilton and Others.*The- burthen of this case rests upon the allegation that Sumner fought in self-defence. Whether that would be a good defence in all cases, or not — as, for example, where one, in the face of a Court sitting, enters into a fight with an assailant, instead of appealing to the authority of the Court for the time being, and thus manifesting a becoming respect for the tribunal and the place — it is enough to say that Sumner had the full benefit of the position claimed for him in this respect. Can he be said, on a charge for an affray, to be acting in self-defence, in any legal sense, who designedly provokes another to strike him, or to offer violence, with the purpose to fight his adversary? If this were done for the *57purpose of killing his adversary, and he executed the design, how should he escape on a chargb for murder? It does not follow because, as between the parties, words will not justify1 a battery, that, therefore, two, who fight in the presence of a Court, or under other circumstances necessary to the definítion of an affray, may not be guilty of that offence, -when provocation of any kind, leading to the breach, proceeds from him who may be first stricken. Upon a question of assault and battery, the law concerns itself in throwing protection around the person, and, therefore, that person’s aggravating language is not recognised as a justification of his adversary’s actual violence. In a question of affray, the great object is, the protection of the public peace and quiet in a public place; and, .though it be true that no quarrelsome or threatening words will amount to an affray, yet we learn, from Hawkins and other writers of best repute, 11 That it is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge ; or even barely to provoke another to send a challenge, or *to*fight, as, by dispersing letters to that purpose full reflections and insinuating a desire to fight.” Prizefights and pugilistic combats come under the head of affrays. So do duels, where no death ensues. In such eases, it can, surely, make no difference who provoked the duel, or what means of provocation were used.

The form of warrant against two, cited in the argument from 4 Ohitty’s C. L., is nothing to the present purpose, for it was a case in which two were charged as assaulting and beating a third, who became prosecutor. In the form of indictment, by Archibald, it is charged as follows: “That J. S.'and J. W., with force and arms, at, &c., being unlawfully assembled together and arrayed in a warlike manner, then and there, in a certain public street and highway there situate, unlawfully, and to the great terror, &c., did make an affray:” with the ordinary formal conclusion, *contra pacem.*

Certainly these doctrines were not violated when it was laid down to the Jury that, if Sumner was willing to fight, and merely preferred to go out of the corporate limits, but also provoked the other to strike him, he was guilty of an affray.

The evidence leaves no doubt that it was a pugilislic combat, a prize fight, at a very inappropriate place and time. This Court is of opinion that there is no good ground of complaint, on the part of Sumner, against the law applied on circuit to his case, or against the verdict rendered upon that and the facts.

The motion is, therefore, dismissed.

Evans, Wardlaw and Frost, JJ., concurred.

*Motion dismissed.*