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XLV.

XLVI.

XLVII.
XLVIII.
XLIX.

Libel

Champerty

Dueling and Prize Fighting

Escape, Prison Breach and Rescue---§§ 668-671
Forcible Entry and Detainer

Unlawful Assembly, Rout and Riot--§§ 682-685

§§ 661-663

---§§ 665-667

§§ 673-674

-§§ 676-681

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§ 655. Definition.-Affray consists in the public fighting of two or more persons to the terror of the people.1

§ 656. Mere words not sufficient.-A mere dispute, accompanied by loud and angry words, does not constitute an affray. There must be a fight. It is not essential, however,

14 Bl. Comm. 145; State v. Sumner, 5 Strob. (S. Car.) 53; Haverebakken v. State (Tex. Cr.), 194 S. W. 1114; Commonwealth v. Merrick, 65 Pa. Super. Ct. 482, 499; Commonwealth v. Blum, 65 Pa. Super. Ct., 493, 498; Commonwealth

v. Tepsick, 65 Pa. Super. Ct., 493;
Commonwealth v. Detwiler, 65 Pa.
Super. Ct. 494; Commonwealth v.
Weston, 65 Pa. Super. Ct., 497;
Commonwealth v. Zerber, 65 Pa.
Super. Ct., 497; Commonwealth v.
Esick, 65 Pa. Super. Ct. 498.

that each party receive a blow. Where an altercation arose between two persons in a public place and one drew his knife and cut at the other, whereupon the latter drew his knife from his pocket but was prevented from using it by bystanders, they were held guilty of affray. As said by Justice Warner, "The words alone of the parties, independent of their acts, would not have constituted an affray; but their words, accompanied by their acts respectively, in drawing their knives and attempting to use them, was calculated to terrify the good citizens of Milledgeville, and disturb the public tranquility."2

§ 657. The fighting must be by agreement.-To re der a person guilty of affray he must unlawfully fight by agreement. If a person merely defends himself against an attack he is not guilty of affray.3

2 Hawkins v. State, 13 Ga. 322, 58 Am. Dec. 517.

3 Klum

V. State, 1 Blackf. (Ind.) 377; State v. Harrell, 107 N. Car. 944, 12 S. E. 439.

CHAPTER XLIII

CARRYING CONCEALED WEAPONS.

Section.

659. Carrying concealed weapons.

§ 659. Carrying concealed weapons.-The English statute of 1328 making it a crime for any one except the king or his servants to go armed, was held merely declaratory of the common law.1 Now the crime in this country is entirely governed by statutes, which usually prohibit the wearing of concealed weapons in public places. These statutes are constitutional. Under most of them the open wearing of weapons is not punishable, but the concealment even for a moment is within the statute. Nor does it matter how the weapon is hidden, concealment in a basket,5 satchel, or even wearing a pistol in a holster, being indictable. But it was held that carrying in one's hands saddlebags with the lid down, in which a pistol was hidden, was not indictable. It is enough that the weapon was worn in one's own house, if

1 Knight's Case, 3 Mod. 117; Statutes 2 Edw. III, ch. 3.

2 Salina v. Blaksley, 72 Kans. 230, 83 Pac. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. 196, 7 Ann. Cas. 925; 3 Whart. Crim. Law (11th ed.), § 1875.

3 Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. 17, 9 Am. Cr. 149; State v. Swope, 20 Ind. 106. 4 Brinson v. State, 75 Ga. 882.

5 Boles v. State, 86 Ga. 255, 12 S. E. 361, 8 Am. Cr. 126.

6 Warren v. State, 94 Ala. 79, 10 So. 838.

7 Barton v. State, 7 Baxt. (Tenn.) 105; Lewis v. State, 2 Tex. App. 26.

8 Southerland v. Commonwealth, 109 Va. 834, 65 S.E. 15, 23 L. R. A. (N. S.) 172.

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the statute makes no exception, and it does not matter that a gun was unloaded, 10 or was carried for hunting," or was so defective that it could not be fired. 12 But criminal intent may be negatived by showing that the weapon was being carried merely as property, to a repair shop,13 or to return it to its owner,14 or as merchandise for sale.15

Under most statutes the weapons must be worn in a public place, and under many, travelers are excepted from the penalty. To fall within this exception, one must be absent from home on an occasional business trip,16 and the exemption covers the period of such journey. Making a daily trip from one's house to his place of business,17 or a trip from the outlying townships to a county seat in the usual manner, 18 is not travel.

Where persons threatened with or apprehending personal danger are excepted, reasonable ground for apprehension must be shown. 19

Officers in discharge of their duties are usually excepted;20 the exemption applying only when actually in discharge of official duty, and affording no protection when the officer is outside of his district.21

9 State v. Workman, 35 W. Va. 367, 14 S. E. 9, 14 L. R. A. 600.

10 Ridenour v. State, 65 Ind. 411. 11 Sanderson v. State, 23 Tex. App. 520, 5 S. W. 138.

12 Mitchell v. State, 99 Miss. 579, 55 So. 354, 34 L. R. A. (N. S.) 1174, Ann. Cas. 1913E, 512.

13 Pressler v. State, 19 Tex. App. 52, 53 Am. Rep. 383; State v. Gilbert, 87 N. Car. 527, 42 Am. Rep. 518.

14 State v. Brodnax, 91 N. Car. 543.

15 Foster v. State, 59 Tex. Cr. 44, 126 S. W. 1155, Ann. Cas. 1912A, 1206.

16 Lott v. State, 122 Ind. 393, 24

N. E. 156; Chaplin v. State, 7 Tex.
App. 87.

17 Eslava v. State, 49 Ala. 355.
18 Carr v. State, 34 Ark. 448, 36
Am. Rep. 15.

19 Smith v. State, 69 Ind. 140; State v. Wilburn, 7 Baxt. (Tenn.) 57, 32 Am. Rep. 551; Reach v. State, 94 Ala. 113, 11 So. 414; Suddith v. State, 70 Miss. 250, 11 So. 680; Chatteaux v. State, 52 Ala. 388.

20 Bell v. State, 100 Ala. 78, 14 So. 763; Love v. State, 32 Tex. Cr. 85, 22 S. W. 140.

21 Shirley v. State, 100 Miss. 799, 57 So. 221, 38 L. R. A. (N. S.) 998, Ann. Cas. 1914A, 252 and note.

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§ 661. Common barratry.-Common barratry consists in frequently exciting and stirring up suits and quarrels either at law or otherwise.1 There must be a series of at least three distinct acts to constitute this offense. Moreover, the acts must be more than merely unsuccessful suits. If the suits are brought, however, merely to annoy the adversary, and are unfounded, the offense is committed. It has been held that a justice of the peace who stirs up criminal prosecutions for the purpose of obtaining fees is guilty of this crime.1

§ 662. Maintenance.-Maintenance consists in the officious intermeddling in a suit by one who has no interest therein by maintaining or assisting either party with money or otherwise, to prosecute or defend it.5 Thus, it has been held that where a stranger to a suit induces the plaintiff to sue by promising to pay the costs in case he loses, the promisor is guilty of maintenance. As a rule, however, this of

14 Bl. Comm. 134; 1 Hawk. P. C. 524, ch. 81; Commonwealth v. Davis, 11 Pick. (Mass.) 432.

2 Commonwealth v. Davis, 11 Pick. (Mass.) 432; Commonwealth v. McCulloch, 15 Mass. 227.

3 Commonwealth v. McCulloch, 15 Mass. 227.

4 State v. Chitty, 1 Bailey (S. Car.) 379

51 Hawk. P. C. 535, ch. 83; 4 Bl. Comm. 134.

6 Hutley v. Hutley, L. R. 8 Q. B. Div. 112.

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