Commonwealth vs. Tibbs, Laurel, 1833

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Commonwealth vs. Tibbs

COURT OF APPEALS OF KENTUCKY

31 Ky. 524; 1833 Ky. LEXIS 139; 1 Dana 524

November 9, 1833, Decided

PRIOR HISTORY:  [**1]  FROM THE CIRCUIT COURT OF LAUREL COUNTY. 

DISPOSITION: Judgment affirmed.

COUNSEL: Atto. Gen. Morehead for the Commonwealth: Mr. Crittenden for Defendant. 

JUDGES: Chief Justice ROBERTSON. 

OPINION BY: ROBERTSON 

OPINION

 [*524]  Chief Justice ROBERTSON delivered the Opinion of the Court.

GREENBERRY TIBBS was indicted for challenging Jonathan McNeel to fight with deadly weapons in single combat; and on the trial, the proof was, that immediately after they had been quarrelling, Tibbs said to McNeel, "I am told you carry weapons for me--I will fight you a duel with a pistol or a rifle, from one step to a hundred yards." Upon that proof, the jury found a verdict of not guilty.

The only question which we shall consider, is, whether the words which were proved, amount to a challenge within the meaning of the act of assembly.

It is impossible to define, with precision, what words will, ex vi termini, import a challenge to fight a duel; but we are of the opinion, that the words which have been quoted, do not necessarily amount to such a challenge as was contemplated by the penal statute of this state.

No words that should not be constrained as a requisition, demand, or a request, to fight, should [**2]  be deemed a challenge to single combat.

When the occasion and other accompanying circumstances are considered, the words which were proved in  [*525]  this case, do not import, necessarily, or by clear implication, such a requisition, demand, or request; but rather evince only a willingness to fight, if McNeel should desire such a reencounter.

Such words might amount to a misdemeanor, at common law, for they may be deemed an "insinuation" of a desire to fight with deadly weapons, which might provoke such a combat, and which, therefore, is punishable as a misdemeanor. (1 Hawk. pleas of the Cr. c. 63. §.) But Tibbs was not indicted for such a misdemeanor. And the jury, under all the circumstances, had a right to find that he had not been guilty under the act of assembly.

Wherefore, the judgment of acquittal is affirmed.