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State v. Fritz - 133 N.C. 725, 45 S.E. 957 (1903)

Rule:

An affray is a mutual fighting of two or more by consent in a public place. An affray consists of mutual assaults, of which one person may be convicted, where the other may be acquitted or not put on trial. Dueling is simply an aggravated form of affray and under such indictment the parties may be convicted of a mutual fighting by consent without deadly weapon.

Facts:

Defendants, Fritz and Hollified, had a fight on Sunday on Buck Creek, McDowell County. The indictment against the defendants stated, inter alia, that the night before Fritz had came to another person's house where Hollifield was staying 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 Saturday night. Subsquently, Hollifield sent another to see Fritz next day and tell him to come down and fight, which that he did, and reported back to Hollifield that Fritz had agreed to meet at a certain corner tree. The agreement was to fight a fair fight with fists and hands and not to use any deadly weapon. On that Sunday, both Fritz and Hollifield did meet at the tree with several others also present.  Within two minutes after meeting, both Fritz and Hollifield were fighting 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. Both Fritz and Hollifield were indicted under North Caroloina Code, sec. 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 trial court instructed the jury to find the defendant not guilty of fighting a duel as charged, and they so found; and the court further instructed the jury to find the defendant guilty of an affray under the bill, and they so found. Judgment was rendered that defendant be discharged as to fighting the duel. The State excepted and appealed. The court adjudged that the defendant pay a fine of $ 10 and the costs as to the affray. Defendant appealed.

Issue:

Did the trial court err in either charging the jury to find the defendant not guilty on the indictment to fight a duel or charging the jury to find defendant guilty on the lesser charge of engaging in an affray?

Answer:

No

Conclusion:

In the appeal by the State the appellate court concluded that there was no error, because it was clear that there was neither an invitation to nor an engagement by agreement in a deadly combat. If the parties felt that they were bound to fight it is to their credit that they both kept their agreement "to fight a fair fight and not to use any deadly weapon," and that no serious damage was done. The statute did not visit such conduct as this with deprivation of the privilege of holding "any office of trust, honor, or profit in the State," without benefit of "any   pardon or reprieve to the contrary notwithstanding."

In the appeal by the defendant, likewise there was no error.  The facts found certainly constituted  an affray, which is a mutual fighting of two or more by consent in a public place. The presence of seven other persons made it a public place; but if in a private place it is still an assault. An affray consists of mutual assaults, of which one person, as in this case, may be convicted, where the other may be acquitted or not put on trial. Dueling is simply an aggravated form of affray and under such indictment the parties may be convicted of a mutual fighting by consent without deadly weapon.

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