People ex rel. Terry v. Bartlett

Baldwin, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

On the oral argument, we inclined to think the point made by the Appellant well taken ; but, on further examination, we think differently.

This was a proceeding by mandamus against the Clerk of the Court of Sessions of San Francisco County, to compel him to send to the District Court of the Fourth District an indictment [652]against David S. Terry for a violation of the statute of 1855, against dueling. (Stat. of 1855, p. 152.)

The indictment charges the fighting of a duel by agreement of defendant with David C. Broderick, and the death of Broderick as the result of the meeting. The only question is, has the Court of Sessions jurisdiction of this offense thus characterized ? And this question depends upon the construction to be given of various statutes.

By statute organizing the Courts of Sessions, (Wood’s Dig. 132,) it is provided that this Court “ has jurisdiction to try and determine all indictments found therein, for all public offenses, except murder, manslaughter, and arson.” The question, then, arises, is the offense with which the defendant is charged by this indictment the offense of murder within the meaning of this provision of the statute ? The point is not whether fighting a duel with a fatal result to the other party is, morally, murder, or whether-it comprehends the offense of murder, but whether it be murder as'this crime is defined by statute, and within the intent of the law so embraced. We think the Legislature did not mean to place this offense in the same category with other 'unlawful homicides. If no special regulation had been made, it would have fallen within the general statute against murder. But the Legislature saw that the offense could not be punished in this way at all. Public sentiment revolted at the idea that a man who goes upon the field, however unjustifiably, in strict morals, or in respect to the law of the land, and meets an antagonist fairly in deadly combat, stands on an equal footing with the assassin who kills his victim at advantage, from revenge or for lucre. Accordingly, a different measure of punishment was prescribed, and a separate offense from that of murder was created of the facts. As early as 1850, the Legislature passed an Act (Stat. of 1850, p. 253, Sec. 407) as follows: “ If any person shall, by previous appointment or agreement, fight a duel, and in so doing shall kill his antagonist, or any person or persons, or shall inflict such wound as that the party injured shall die thereof, within one year thereafter, every such offender, his second, as well as the second of the person killed, and all aiders, abettors, and counselors, being thereof duly convicted, shall be