O'NEILL vs. THE STATE

O’NEILL vs. THE STATE. 1; Mere words do not constitute an affray -, nor is a party guilty of that offence, who offers no resistance to an attack made upon him, although the attack is induced by insulting language’used by him to the assail-' ant. Error to the Circuit Court of Lawrence. Tried before thé Hon. George W. Lane. The plaintiff in error was tried under an indictment, charging him with an affray. At the trial a bill of exceptions was sealed, by which it appears, that the State in support of the' charge introduced a witness, who testified, that some time in 1844, the defendant rode up to where the witness was sitting iii the town of Moulton, and applied tó him many opprobious epithets, such as thief, liar, rascal, Ac.; whereupon the witness' caned him, but the defendant made no resistance, further than to throw up his hands to protect his head, and neither Struck nor’ attempted to strike the witness. Upon this evidence, the accused requested the court to charge the jury, that .mere words Would not constitute an affray, which charge the court refused to give, but charged the jury, that an affray was tho' fighting of two or more persons willingly in a public place, and that if one used insulting language to another, calculated, to bring on a fight, and in consequence thereof the person insulted attacked the person using the insulting language, both were guilty of an affray, whether the person attacked resisted or not, To the refusal of the court to charge as requested, and to the charge given, the defendant excepted, and now assigns them as error. T. M. Peters, for plaintiff: 1. The court erred in refusing to charge as asked. No quarrelsome or threatning words will amount to an affray-much less then, will mere words of abuse. To» constitute one an affrayer, he must- actually engage in the fight, cithers by striking or offering t'o strike, or by drawing a' weapon to intimidate. Archb. Cr.'-PL-564;' Rose. Cr. Ev. 198; 1 Buss. Cr. 271; 1 Jacob Law' Diet.. 65; 3 Inst. 158 ; Cushman v. Ryan, 1 Story Rep. 92; 1 Hawk. PI. 135; Wharton’s Diet, of Jurisprudence, verb, affray, 30. 2. The court erred in the charge defining an affray. An-affray is a skirmish or fighting between two or more persons in a public place, to the terror of the by-slanders: and it is called an affray because it disturbs the public peace, by affright-ing■■ or making men afraid. The “ affrighting or “ putting in fear” is one of the ingredients of the offence. For if it be a fighting in a private place, or there be none else present to be made afraid or terrified, except the combatants, then the of-fence is but an assault, or an assault and battery. 4 Black, Com. 145 ; 1 Hawk. PI. 134,135; 3 Inst. 158; 1 Bouv. Law Dictionary 90; Rose, Cr. Ev, 198; 1 Russ. Cr. 271; Archb. Cr. PI. 564; Wharton’s Die. of Jurisp. 30, and the descriptions' of the offence in all the precedents of indictments for Affrays. See also, Sampson v. State, 5 Yerg. Tenn. R. 356. ATTORNEY General, for the State: 1. There may be an affray without any actual violence — the terror it produces to the citizens, being the gist of the offence. 1 Russell on Crimes, 271. 2. The slightest participation in a misdemeanor is a mis* 'demeanor, and so if a person -should use provoking language ¿towards another, calculated to bring on a difficulty and which does produce that result, this would be such a participation sin a misdemeanor as to render both guilty of an affray, although the party provqked fought so fast, that the party using the provoking language, did npt get a change to strike, forthe intention must- be taken for the act. [MAJORITY — DARGAN, J.] DARGAN, J. An: affray is. the fighting of two or more «-persons in some pubfic place, but no quarrelsome words ¡¡merely, will constitute this offence. 1 Russell, 271; Archb. Cr. Pl. 564; 1 Hawk 135; 5 Yerger, 356. It is probable, however, that if persons arm themselves «with deadly or unusual weapons for the purpose of an affray, and in such man? ,ner as tó strike terror to the people, they may b,e guilty of this «offence, without coming to actual blows. 1 Russell 271. Yet no authority goes so far as to hold that mere vulgar or low abuse, cap constitute ¡this offence. We think, ¡therefore, that the court erred in refusing the ¡charge requested, that mere words would not constitute an .affray, and also in charging, that if pne used insulting language to anpther, in consequence of which, fthe person insulted attacks the one insulting him, the party .attacked is guilty of an affray, -whether he resisted the attack or not. Let the judgment be reversed and the cause remanded.