State v. Fritz

• Decision Date: 15 December 1903
• Citation: 45 S.E. 957,133 N.C. 725
• Court: North Carolina Supreme Court
• Parties: STATE. v. FRITZ.

45 S.E. 957

133 N.C. 725

STATE.

v.FRITZ.

Supreme Court of North Carolina.

Dec. 15, 1903.

DUELING—CHALLENGE—EVIDENCE—CONVICTION—AFFRAY—PUNISHMENT.

1. Code, § 1012, provides that, if any person challenge to fight a duel, he shall be guilty of misdemeanor. Held, that challenging to fight a fair fight with fists and hands, and not to use any deadly weapon, was not within the statute.

2. The fighting of two persons in the presence of seven others constituted an affray, the seven other persons making the place a public one.

3. The superior court having jurisdiction of a charge of challenging to fight a duel, contrary to Code, § 1012, it retains jurisdiction though the proof shows an offense of which a justice has jurisdiction.

4. Where, on a prosecution in a superior court for challenging to a duel, contrary to Code, § 1012, there is a conviction of a simple assault, the punishment must not exceed that which a justice of the peace could impose, the justice having jurisdiction of such offense.

5. Under Laws 1885, p. 118, c. 68, providing that, on an indictment for a felony which includes in its ingredients an assault, accused may be convicted of an assault if the evidence warrants it, where, on a prosecution for challenging to a duel, contrary to Code, § 1012, the evidence merely showed a challenge to fight a fair fight with fists and hands, and no deadly weapon, a conviction for an affray was proper.

Appeal from Superior Court, McDowell County; Long, Judge.

James Fritz was convicted of an affray on a prosecution for challenging to a duel, contrary to Code, § 1012, and he and the state appeal. Affirmed.

The Attorney General, for the State.

CLARK, C. J. The defendant and one Hollifield were indicted under the Code, 1 1012, in that they "did unlawfully and willfully send and accept challenge to fight a duel and did fight a duel." Fritz alone was on trial.

The jury returned the following facts, found as a special verdict: "That in January, 1903, the defendants had a fight on Sunday, on Buck Creek, McDowell county; that on the night before the fight, Fritz came to John Padgett's house, where Hollifield was, and said he would fight Hollifield, offered to fight him then, but said he would meet him anywhere and fight fair. No time and place were agreed upon that night. Fritz came by Padgett's on this occasion cursing Hollifield and offering to fight; Hollifield sent Padgett to see Fritz next day, and tell him to come down and fight; Padg-ett went and told Fritz what Hollifield said, and Fritz said he would come; the agreement was to meet at a certain corner tree about midway between where Hollifield was at Padgett's and place where Fritz was when witness Padgett delivered the message. The agreement was to fight a fair fight with fists and hands, and not to use any deadly weapon. On the morning of this day, when Padgett delivered the message to Fritz and Fritz agreed to fight, Padgett told Hollifield or sent him word that Fritz would come and fight at the corner tree, and both did meet there that day, two persons coming with Padgett, and these, with the others, made seven persons, in whose presence, and in two minutes after meeting, they did fight with hands and fists, and without the use of deadly weapons, until one was pulled off the other. There was no serious damage, and both fought a fair fight with fists and hands. If upon this state of facts the court is of the opinion that the defendant is guilty of the offense with which he stands charged, the jury find him guilty; but if the court is of the opinion that the defendant is not guilty, the jury find him not guilty." Upon these facts the court instructed the jury to find the...