Ward v. Commonwealth

• Citation: 116 S.W. 786
• Parties: WARD v. COMMONWEALTH.
• Decision Date: 10 March 1909
• Court: Court of Appeals of Kentucky

116 S.W. 786

WARD v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 10, 1909

Appeal from Circuit Court, Garrard County.

"To be officially reported."

William H. Ward was convicted of challenging another to fight a duel and he appeals. Reversed and remanded.

W. I Williams, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen., for the Commonwealth.

BARKER J.

The appellant was indicted by the grand jury of Garrard county, charged with a violation of section 1269, Ky. St. (Russell's St. § 3190), commonly called the dueling statute. The indictment is as follows: "The grand jury of the county of Garrard in the name and by the authority of the commonwealth aforesaid accuse Will Ward of the offense of challenging another to fight in single combat with a deadly weapon, committed in manner and form as follows: The said Will Ward in the county and state aforesaid, on the first day of June, 1908, and before the finding of this indictment, did unlawfully, and willfully, challenge J. E. Robinson to fight in single combat with deadly weapons, to wit, pistols, by the following challenge in words, acts and form, to wit, then and there touching said Robinson on the shoulder with his hand and then and there stepping back and then and there drawing his pistol upon said Robinson and then and there unlawfully and maliciously saying to the said Robinson in words and substance: 'God damn you, you started to draw a gun this morning; now, God damn you, shoot.' Then and there meaning by the said words made and delivered as aforesaid a challenge to the said J. E. Robinson to fight with deadly weapons, to wit, pistols, with him the said Will Ward. Against the peace and dignity of the commonwealth of Kentucky." A general demurrer was interposed to the indictment, which was overruled. A plea of not guilty was then entered, and a trial before a jury resulted in the appellant's being found guilty and his punishment fixed at a fine of $500 and imprisonment for six months in the county jail. Judgment was entered in accordance with the verdict, and of this the appellant is now complaining.

The statute under which the appellant was indicted is as follows: "Whoever shall challenge in this state another to fight in single combat or otherwise, with any deadly weapon, in or out of this state, and the person who shall accept such challenge, shall each be imprisoned not less than six nor more than twelve months, and fined five hundred dollars; and whoever shall knowingly carry or deliver any such challenge in this state, or consent in this state to be a second to either party, shall be fined one hundred dollars and imprisoned thirty days." Ky. St. 1269 (Russell's St. § 3190). Section 239 of the Constitution is as follows: "Any person who shall, after the adoption of this Constitution, either directly or indirectly, give, accept or knowingly carry a challenge to any person or persons to fight in single combat, with a citizen of this state, with a deadly weapon, either in or out of the state, shall be deprived of the right to hold any office of honor or profit in this commonwealth; and if said acts, or any of them, be committed within this state, the person or persons so committing them shall be further punished in such manner as the General Assembly may prescribe by law."

The evidence for the commonwealth fully supports the charge in the indictment, and that...