« PreviousContinue »
THE TRIAL OF JOHN WOOD FOR SENDING A CHALLENGE TO A DUEL, NEW YORK
THE NARRATIVE. In the days when dueling was the last word of a gentleman's quarrel, John Wood, a very humble and illiterate youth in New York City, made up his mind to emulate his betters in this regard and after much labor, evolved an epistle to his enemy to this effect: "I have an excellent pair of pistols as ever was used-i Should be very happy with your company tomorrow afternoon or morning, which is most convenient for you, to go along with me and try them; everything will be Prepared and we will have a fine time off it." The enemy wrote back asking how he should proceed, to which he replied, “I think if you was more particular in Reading your letter you would find i mentioned it should be a little above hoboken as there is a Very Convenient Place.” This meeting did not take place, but John was arrested, indicted, tried and convicted of sending a challenge to a duel. The Judge fined him only one dollar as he thought the other penalties prescribed by the State against duelling were enough. And he pointed out to John that for what he had done he could never hold any office in the State—not even be a sergeant in the militia. And he would be forever a proscribed citizen of the country which gave him birth.
In the Court of General Sessions, New York City, September,
September 10. The defendant had been indicted for a misdemeanor, in writing and delivering, and causing to be delivered, to John
1 New York City Hall Recorder. See 1 Am. St. Tr. 61. 2 See 1 Am. St. Tr. 6.
C. Tallman, a challenge to fight a duel, against the form of
Mr. Van Wyck, for the Prosecution.
The challenge set forth in the indictment, consisted of two letters in the following words and figures :
“New York, July 22, 1818. Mr. Jno. Talman Sir,
I have an excellent pair of pistols as ever was used i Should be very happy with your company to morrow afternoon or morning which is most convenient to you for to go along with me and try them everything will be Prepared and we will have a fine time off it i have got an acquaintance of yours to go along with me i mean my friend Robt Ustick i wish you would give me an answer wether we shall be favoured with your company from
To this epistle Tallman returned the following answer:
I recd yours dated the 22d desiring my company, at wnat piace you do not mention; I would thank you to be more explicit & I shall know how to proceed
3 See 4 Am. St. Tr. 547.
DRAKE, JOHN R. (1783-1857) One of the earliest settlers in Tioga County, New York. Member of Congress, New York, 18171819. Judge, Tioga County, 1833. Member New York Assembly, 1834. Died in Oswego, N. Y.
5 The "act to suppress duelling," passed Nov. 5, 1816 (4 Vol. Laws N. Y. b. p. 3), provides, in substance, that if any person whatsoever shall challenge another to fight a duel, or if any person shall accept a challenge, or if any person shall, knowingly, be the bearer of a challenge, such person shall be deemed guilty of a public offense; and being convicted thereof, shall be incapable of holding or being elected to any post of profit, trust or emolument, civil or military, under this state. All officers, civil and military, except town officers, and every person who shall be admitted a counsellor, attorney, or solicitor, in any court, are required to take an oath or affirmation, that they have not been engaged in a duel since the 1st of July, 1816, and that they will not be concerned in any duel during the continuance
The reply, which closed this correspondence, was as follows:
“New York July 22 1818. Sir
I think if you was more particular in Reading your letter you would find i mentioned it should be a little above hoboken as there is a Very Convenient Place Please to Let me know what time i may Expect you there.
Yrs John Wood"
Mr. Drake applied to the court to order a nolle prosequi to be entered on the indictment according to the statute, on the ground that the parties had settled between themselves, and Tallman was then ready in court to acknowledge satisfaction. The counsel contended that this misdemeanor fell within the provisions of the statute, which he read.
The Court decided that, although this was a misdemeanor which could not be considered as having been committed “to the injury and damage of the party complaining,” although "not charged to have been done riotously, or with intent to commit a felony,” and, although, in strictness, “not an infamous crime,” yet it was an offense “for which there was no remedy by civil action.” For several misdemeanors besides an assault and battery, the party injured might bring an action; but for sending a challenge no remedy, by civil action, was provided. This is, therefore, a misdemeanor which does not fall within the provisions of the statute, and the court could not legally grant the application.
of the act, and while an inhabitant of this state; and it is further provided by the act, that if any person shall leave this state and fight a duel, or aid, etc., and any person shall be killed, the challenger may be tried in any county in this state.
"That where a person shall be indicted for an assault and battery, or other misdemeanor to the injury and damage of the party complaining, and not charged to have been done riotously, or with intent to commit a felony, or not being an infamous crime, and for which there shall be a remedy by civil action, if the party complaining shall appear before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury, etc., it shall be lawful for the court, in their discretion, to order a nolle prosequi to be entered," etc.
Robert Ustick. Am the person named in the letter set forth; never knew of any difference between the parties, and was never spoken to by Wood to become a second.
John C. Tallman. There had been a difference between Wood
and myself; the letters, which I believe to be in the handwriting of Wood, from having seen him scribble on paper, were received by the hands of Wood's cousin. To the first letter I returned the answer, and, on the same day, received the reply.
Mr. Drake contended to the jury, that from the words of the letter, and the other evidence. it could not be considered that a challenge was intended; and, for aught that appears, this might have been an invitation from Wood to Tallman, to accompany him on an innocent excursion to fire at a mark.
The MAYOR charged the jury that, although the statute had provided that "if any person shall challenge another to fight a duel," etc., yet, to constitute a challenge, it was not necessary that the words contained in the act should be pursued. The sole question for the determination of the jury was, whether, from all the facts and circumstances in the case, it could be rationally inferred, that the letters set forth in this indictment were intended by the defendant as a challenge to fight a duel. The principal ingredients of a challenge were time, place, weapons, and friend; all of which were contained in the letters. Besides, there was a difference between the parties, and although it had not been proved that Hoboken was a place generally selected for fighting duels, yet, this was a matter of public notoriety. And his honor remarked, in the conclusion of his charge, that it would be a subject of deep regret, if an offense, against which the legislature had been so anxious to guard, an offense so dangerous in the community, disseminating itself even among children, as in this case, could be committed with impunity, because justice was so blind as to be unable to penetrate the flimsy veil of defense interposed.
The Jury found the defendant Guilty.
The MAYOR, in passing sentence, observed, that a consideration of the severity of the punishment, incident to a conviction for this offense, by the provisions of the statute, had induced the court to superadd a nominal punishment only. The defendant must hereafter be contented to live in the country which gave him birth, as a proscribed citizen; for whatever may be his merit and qualifications in this state he could never hold any office; not even that of a subaltern in the militia. Should he procure a pardon from the executive, still, he never could take the oath prescribed in the statute, for those chosen or elected to fill an office.
It would have been far better for him, before undertaking to display his chivalrous spirit by writing challenges, so far to have completed his education, that he might have written the English language with more propriety than his composition evinced on this occasion.
He will be fined one dollar and give security to keep the peace for two years.