to be tra-territo § 1774. Where a challenge is given in one State to fight a No defence duel in another State, the offence of challenging is that duel is continuous, and may be tried in either jurisdiction ;1 fought ex- though if the challenge be in writing, it may be experially. dient, in the jurisdiction of consummation, to charge the offence as an oral renewal. Clearly a challenge to fight in another State is penally cognizable in the State in which the challenge is issued.2 Nor is it necessary to prove that the challenge ever reached its destination.3 All con § 1774 a. All who are concerned in a duel are responcerned are sible under the limitations heretofore stated as applying to principal and accessary. responsi ble. Challenge need not be specially pleaded. II. INDICTMENT. § 1775. A written letter, if merely the inducement or introduction to an oral communication, conveying a challenge, need not be set forth. Thus where T., in a letter to N., used expressions implying a challenge, and by a postscript referred N., the challenged party, to one H. (the bearer of the letter), if any further arrangements were necessary, it was held that the letter was only evidence of the challenge, and need not be specially pleaded; and that N. might give testimony of the conversation between H., the bearer of the letter, and himself.5 Even when a statute makes sending a challenge indictable, it has been held not necessary to set out a copy of the challenge; and if an attempt be made to set out in the indictment a copy, and it varies slightly from the original, as by the addition or omission of a letter, no way altering the sense, it has been said that such variance after verdict is cured.7 To set forth the substance is enough.8 ment, or both, at the discretion of the L. R. 2 C. C. 147; Com. v. Lambert, court." 1 See supra, § 288. 2 R. v. Williams, 2 Camp. 506; State v. Taylor, 3 Brev. 243; 1 Tr. Const. Rep. 107; Harris v. State, 58 Ga. 332; State v. Farrier, 1 Hawks, 487. See Ivey v. State, 12 Ala. 276. 3 R. v. Williams, supra. Supra, §§ 215, 482; R. v. Taylor, 9 Leigh, 603. As to surgeons see Cullen v. Com. 24 Grat. 624. 5 State v. Taylor, ut supra. Brown v. Com. 2 Va. Cas. 516. 8 Ivey v. State, 12 Ala. 276. § 1776. Where a statute makes it a misdemeanor to challenge another, the indictment must charge that the de- Statute fendant challenged; it is not enough that he wrote, must be sent, and offered a paper he intended as a challenge.1 followed. Expressing a readiness to accept a challenge does not amount to challenging under the statute.2 III. EVIDENCE. § 1777. No set phrase is necessary to constitute a challenge to fight with deadly weapons, nor is a writing nec- Challenge essary.1 may be inferred The note or letter sent by one party to the other, from facts. and parol testimony in explanation, are admissible as evidence.5 The jury is to decide, under advice of the court, whether, from all the circumstances, there has been a challenge within the statute.6 § 1778. Concert being proved, it need scarcely be Admissions added that the admissions of a second are evidence against the principal; and vice versa." 1 of seconds are evidence. fendant's acts. Com. v. Welsh, 7 Gray, 324. See for cases supra, § 1771. State v. Perkins, 6 Blackf. 20. Supra, § 1775. 5 Supra, § 1775; R. v. England, 2 Leach, 767. 1 State v. Gibbons, 1 South. 40. whom, or further setting out the de2 Com. v. Tibbs, 1 Dana, 524. An indictment under the Massachusetts Stat. 1849, c. 49, § 1, is sufficient, which alleges that the defendant, at a time and place named, by and in pursuance of a previous appointment and arrangement made to meet and engage in a fight with another person, to wit, with one J. S., did meet and engage in a fight with the said J. S.," without further charging what previous appointment or arrangement was made, or when or where, or by 6 Com. v. Hart, 6 J. J. Marsh. 119; State v. Strickland, 2 N. & McC. 181; Herriott v. State, 1 McMull. 126; Gordon v. State, 4 Mo. 375. 7 State v. Dupont, 2 McCord, 334; Whar. Crim. Ev. § 698. 525 BOOK IV. PART III.- OFFENCES AGAINST GOVERNMENT. CHAPTER XXXVI. I. TREASON STATES. TREASON. AGAINST THE UNITED CONSTITUTION AND STATUTES, § 1782. Constitutional and statutory defini tion of treason, § 1782. Punishment, § 1783. Seditious conspiracy, § 1785. Enlisting persons to serve against U. Offence of persons so enlisted, § 1787. JUDICIAL RULINGS. Treason consists in levying war or in adhering to enemies, § 1790. 1. Levying War. Term to be accepted in its prior ju dicial meaning, § 1791. All concerned in levying war are principals, § 1792. But there must be an overt act of war, § 1793. Number engaged is not material, § 1794. Direct levying of war is attack on government forces or ports, § 1795. Constructive is where it is intended Belligerent insurgents are not indictable for treason, § 1799. Belligerent rights do not protect illegitimate warfare, § 1800. 2. Adhering to Enemies of the United States. This clause does not cover aid or sympathy given to a rebellion, § 1801. Otherwise as to aid given to hostile foreign State, § 1802. Obedience to de facto government is a defence, § 1803. Home government may punish subjects for political offences abroad, § 1804. And so for intra-territorial offences by aliens, § 1805. 3. Indictment. Overt acts must be laid in indictment, § 1806. 4. Evidence. Confederacy must be proved, § 1807. Must be two witnesses to one overt act, § 1808. Confessions admissible as corrobora tions, § 1809. Place of overt act has jurisdiction, § 1810. No defence that defendant believed he was exercising a right, § 1811. to effect change in government by II. TREASON AGAINST THE PARTICULAR force, § 1796. But war to effect private ends is not treason, § 1797. Not necessary to treason that a battle should be fought, § 1798. STATES. Such treason is an offence at common law, § 1812. Does not necessarily include treason against the U. S. § 1813. But does include all treason against Otherwise when U. S. interposes, Is not absorbed in treason against Covers cases of open attacks on state government, § 1818. Analogies from foreign jurisprudences, § 1819. I. TREASON AGAINST THE UNITED STATES. CONSTITUTION AND STATUTES. § 1782. "TREASON against the United States shall consist only in levying war against them, or in adhering to Treason. their enemies, giving them aid and comfort. No per- Definition and proof. son shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." 2 "Every person owing allegiance to the United States, who levies war against them, or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason." 4 ment. § 1783. "Every person guilty of treason shall suffer death; or, at the discretion of the court, shall be imprisoned at Punishhard labor for not less than five years, and fined not less than ten thousand dollars, to be levied and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States." 5 1 A rebel, being a citizen of the United States, cannot be viewed as an enemy under the Constitution of the United States; and hence a conviction of treason, in promoting a rebellion, cannot, it has been held, be sustained under that branch of the constitutional definition which includes "adhering to their enemies, giving them aid and comfort." But such a rebel may be convicted under the phrase relating to "levying war." U. S. v. Greathouse, 2 Abb. U. S. 364 (U. S. Cir. Ct. Cal. 1863; Field and Hoffman, JJ.). See infra, § 1795. 2 Const. U. S. art. 3, § 3, cl. 1. See Sprague, J., 23 Law Rep. 705; U. S. v. Villato, 2 Dall. 370. 4 Rev. Stat. § 5331. Members of Congress guilty of treason are liable to arrest. Const. art. 1, § 6. 5 Rev. Stat. § 5332. The questions of confiscation, under this statute, are discussed in Miller v. U. S. 11 Wall. 268; Semmes v. U. S. 91 U. S. 21; Wallack v. Van Riswick, 92 U. S. 202; Windsor v. McVeigh, 93 U. S. 274. § 1784. "Every person owing allegiance to the United States, having knowledge of the commission of any treason Misprision. against them, who conceals, and does not as soon as may be disclose and make known the same to the President, or to some judge of the United States, or to the governor, or to some judge or justice of a particular State, is guilty of misprision of treason, and shall be imprisoned not more than seven years, and fined not more than one thousand dollars." 1 § 1785. "If two or more persons in any State or territory conSeditious spire to overthrow, put down, or to destroy by force, conspiracy. the government of the United States, or to levy war against them, or to oppose by force the authority thereof; or by force to prevent, hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States, contrary to the authority thereof; each of them shall be punished by a fine not less than five hundred dollars and not more than five thousand dollars, or by imprisonment, with or without hard labor, for a period not less than six months nor greater than six years, or by both such fine and imprisonment." 2 persons to serve United § 1786. "Every person who recruits soldiers or sailors within Enlisting the United States, to engage in armed hostility against the same, or who opens within the United States a against the recruiting station for the enlistment of such soldiers or sailors, to serve in any manner in armed hostility against the United States, shall be fined a sum not less than two hundred dollars nor more than one thousand dollars, and imprisoned not less than one year nor more than five years.” 3 States. Punish § 1787. "Every soldier or sailor enlisted or engaged within the United States, with intent to serve in armed hosment of tility against the same, shall be punished by a fine of listing. one hundred dollars, and by imprisonment not less than one nor more than three years. those so en 1 Rev. Stat. § 5333. As to misprision see U. S. v. Wiltberger, 5 Wheat. 76; Confiscation cases, 1 Woods, 221; U. S. v. Tract of Land, 1 Woods, 475. 2 Rev. Stat. § 5336. See Rev. Stat. §§ 5518, 5520; Lange, ex parte, 18 Wall. 163. For revenue cases under this statute see supra, § 1372. 8 Rev. Stat. § 5337. |