Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1838-07-20

the form OF The STATUTE and sustained il must be be
cause the offence charged is distinct generic offence
for which indictment will lie at common law or he
cause the charge is equivalent charge for a common
assault and battery, or ARRAY 1t is held by all the
elementary writers, that breach Of the peace commit
ted by fighting duel is an aggravated mjsdemennor r.,
common law.-[4 Blacks, Comm 1916 In like manner
it's held, that at common law, a challenge to fight o
duel or the sending letters intended TO provoke duel
Is q misdemeanor as tending to bring about volen,
breach Of the peace But the actual of the
IN The one case, and the attempt to provoke breach OF
the peace in the other cases. constitute the pyapamsn OF
the charges and the means used the acs bv which
the offence is committed or aggravated. But we have
been unable TO find any precedent of an indictment for
fighting duel treating and describing the act of fight.
ing duel as distinct offence to which punishment at.
taches The parties might be indicted for afffay for
common assault, Or if death ensueG or a felony were
committed could be prosecuted for the murder felony
The legal consequences resulting from an indictment or
conviction for any Of these charges known and as.
certained But If the act of fighting duel streated
distinct offence. and the indictment may charge it in
so many words, it nigh, be difficult determine what
is the precise character Of the offence what degree
proof would be necessary make the Charge and
what would be the consequences OF Judgment Of
quittal or conviction The terms fighting duel would
seem 10 imply something more than ASSAULT and if per.
sonal injury mus, have been inflicted to constitute the Of
fence then, though the parties may have actually and
fought IN The common accepatlon Of the terms ght
duel, the offence would not be made out. To const
tue all assault there must he blow, the presentation
to make one the presentation Of loaded weapon in
striking carrying distance. If evidence Of this would
be sufficient then the offence would be consummaed
although something took place to prevent the fight be-
fore actually occurred II equally difficult to deter
mine what would be the consequences Of udgnent on
an indictment for such charge. A conviction for an
assault is bar 10 prosecution for riot, acquit,a
OF manslaugh,er bar 10 prosecution for murder Of
murder bar to prosecution for petit treason-[2 Va.
cas-, l39. tlaes, p c., 246 Fosters c. l., 329 l.
sin Of this kind j. is said by the Reporter in
note to the of Commensurate Kinney Eva Cases,
no. "where grades Of offence the result of the
act, the prosecutor should begin with the higher
and failure, prosecute for the lower, unite both Of
fences in the same indictment, under separate counts
Murder feonious shooting or manning, nffray,
saut with intent TO kill, may result from duel. For
either offence the party might be indicted and the in.
dc,ment would apprze him for which Of the specific
suits proceeding from the act of fighting The duel he
was prosecuted. And The consequences OF conviction
acqutal ascertaned by the law. But where the
charge for fighting duel alone, it ia uncertain whe
ther he is proceeded against for distinct offence indie
pendent OF the results for any, if any, 70. which,
Of the effects Of The duel And is equally uncertain,
what would be the effect Of conviction or acqutal in
barring any other prosecution for offence of differ
ent grade, resulting from the act Of fighting duel
The charge TO fight duel is not therefore equivalent
with the usual charge in indictment for afiray
or common assault. 1t does not ascertain with sui.
fcieh precision the act for which the party is pro-
secuted. 1t is uncertain what degree of evidence
would be required 10 make it out and the consequent
Of Judgment are not ascertalned. None OF these
ed forms adhered 10; and there 10 be no ne
cessy for the e1ectua prosecution of breaches Of
the peace committed by duelling 10 sanction depar
ture from them in this instance. majority OF the
court therefore Of opinion that the indictment is not
good whether it is considered charging the Of
fighting duel as being distinct offence at common
aw, being equivalent to an indictment for an at
fray assault II is, therefore, in answer to
the second and third questions ordered 10 be certified
that the demurrer 10 the indictment be sustained and
judgment entered for the defendant
Henry Linkous, jr., vs. Commonwealth Petition for
writ of error.
The petitioner indicted in the Circuit Superior
Court Of Montgomery county, for unlawful gaming
The indictment contained two counts; the first charging
that the gaming took place sat the house Of John Nice
iy in the county aforesaid the same being then and
there place Of public resort" the second that the gam
ing took place sat the house Of John hceiy the
same being then and there house of entertainment. -
The defen dan moved, the Court 10 quash the second
count in the indictment, and the Court overrued the
motion lie then pleaded not guilty, ond the jury i'm.
pannelled TO try the ISSUE found him guilty as alleged in
the second count, and not guilty as alleged in the rS
count. Whereupon the defendant moved the Court to
enter judgment in his favor but the court oyerruled the
motion, aud gave judgment for the Commonwealth for
fine of 20 dollars and the costs Of the prosecution
On the trial, the defendant filed bill Of exceptions in
these -"Memorandum: after the court had in
sructed the Jury that if they shall be of opinion from
the evidence that the defendant played cards al the house
Of John Nicely in the indictment is alleged, and that
the house Of said Nicely at which persons, who
called therefor, furnished with either meat or IL
quor, for which charge was made, whether he had OBJ
tanned license not then The said house u.s. within con-
temptation Of law house of entertainment, or tavern
and they ought TO find verdict Of guilty-lhe defend
ant asked for the following instruction. viz That before
they find the defendant guilty under the second count
in the Indictment il must appear from the evidence that
the house Of John Nicely was house OF entertainment
licensed by law, that it was place of public resort
the lime of The playing alleged in the said second count
of the Indictment Which instruction the court refus
ed to gives which opinion the defendan excerpts, DC
Robert e. Stanard for the petitioner. |. The defend
ant was acquitted under the FIRST count Of the Indictment
and no offence against the penal laws OF the Common
wealth 10 charged in the second count.
1t is admitted that indictment under the acto pre-
vent gaming, which charges the gaming 10 have
taken place (n the words Of the 9Th secoD) at an oId
nary acefed other public place or at taoern (Which
is e1 termini both ordinary and public Pace) or
at house of public resort, whether licensed or not, IS
good Hord vs. Commonwealth, Leigh, GA. Horh
an, vs. Commonwealth, 6 Rand, G7o. But here the
words of the indictment cat the house oil J0hn Ntce
h. the same being then and there house Of entertain
nl.nt.'
l. A house Of entertainment is not Ell c ermn, an or
dinery tavern house Of public resort or public place
A house may be a house OF entertainment, ana yet mel
iher of these IL is true that "house OF entertainment
is general term which may comprehend them all, but
it does not necessarily import any one OF Them and II IS
not efficient that the used ia the indictment should
comprehensive forbidden place. along with other places
no, forbidden The defendant has right TO require that
the CHARGE which he is called upon to should be
distinctly made and the place is of the very essence
of the charge the terms used should designate forbid
den place, and forbidden place only.
9 A house of en,crtainmen merely lie not ga tavern
within the 10Th section of the act upon the true con-
structon of secon and therefore the reasoning OF
the General Court in the case OF Rorhdm vs. Common
1ceaith does not apply to this case
The obvious intent and meaning of that section s to
embrace within the provisions of The act allhouses OF
public resort whether licensed not, SO 40 subject
the keepers Of such houses, well those who play
there 10 The penalties Of the act The whole context
and policy of the sus,ans this construction an
&C, to suppress public gaming, lin the words of the
nre,nbe 10 the 5h secton) prevent gaming at or.