CHALLENGE. A request by one person to another to fight a duel. No particular form of words is necessary to constitute a chal lenge, and it may be oral or written; State v. Perkins, 6 Blackf. (Ind.) 20; Ivey v. State, 12 Ala. 276; State v. Strickland, 2 Nott & McC. (S. C.) 181; Com. v. Pope, 3 Dana (Ky.) 418. Sending a challenge is a high offence at common law, and indictable as tending to a breach of the peace ; Hawk. Pl. Cr. b. 1, c. 3, § 3 ; Com. v. Tibbs, 1 Dana (Ky.) 524; State v. Gibbons, 4 N. J. L. 40; State v. Du pont, 2 McCord (S. C.) 334 ; State v. Taylor, 1 Const. (S. C.) 107; State v. Farrier, 8 N. C. 487; State v. Perkins, 6 Blackf. (Ind.) 20; Corn. v. Lambert, 9 Leigh (Va.) 603. He who carries a challenge is also punishable by indictment; Clark, Cr. L. 340; U. S. v. Shackelford, 3 Cra. C. C. 178, Fed. Cas. No. 16,260. In most of the states, this barbarous practice is punishable by special laws. 2 Bish. Cr. Law, § 312. And in a large num ber of them by their constitutions the giving, accepting, or knowingly carrying a chal lenge, deprives the party of the right to hold any office of honor or profit in the common wealth.
In most of the civilized nations, challeng ing another to fight is a crime, as calculated to destroy the public peace; and those who partake in the offence are generally liable to punishment. In Spain, it is punished by loss of offices, refits, and honors received from the king, and the delinquent is incapable to hold them in future; Aso & M. Inst. b. 2, t.
19, c. 2, § 6. See, generally, Joy, Chall. ; 1 Russ. Cr. 275; 2 Bish. Cr. Law, chap. xv.; Com. v. Hart, 6 J. J. Marsh. (Ky.) 120 ; State v. Taylor, 1 Const. (S. C.) 107 ; In re Leigh, 1 Munf. (Va.) 468.
In Practice. An exception to the jurors who have been arrayed to pass upon a cause on its trial. Bee 2 Poll. & Maitl. 619, 646.
An exception to those who have been re turned as jurors. Co. Litt. 155 b.
The most satisfactory derivation of the word Is that adopted by Webster and Crabb, from ca//, challenge implying a calling off. The word Is also used to denote exceptions taken to a judge's capac ity on account of interest ; Bank of North America Ir. Fitzsimons, 2 Binn. (Pa.) 454; Pearce v. Affieck,
4 id. 349; and to the sheriff for favor as well as affinity ; Co. Litt. 158 a; Munshower v. Patton, 10 S. & R. (Pa.) 336, 13 Am. Dec. 678. The right is not allowed to enable the prisoner to select such jurors as he may wish, but to select just and impartial ones ; State v. Jones, 97 N. C. 469, 1 S. D. 680.
Challenges are of the following classes:— To the array. Those which apply to all the jurors as arrayed or set in order by the officer upon the panel. Such a challenge is, in general, founded upon some error or mani fest partiality committed in obtaining the panel, and which, from its nature, applies to all the jurors so obtained. These are not allowed in the United States generally ; U. S. v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16, 134 ; Thomas v. State, 5 How. (Miss.) 20 ; the same end being attained by a motion addressed to the court, but are in some states ; Bowman v. State, 41 Tex. 417 ; Boles v. State, 24 Miss. 445 ; Quinebaug Bank v. Tarbox, 20 Conn. 510; Peck v. Freeholders of Essex County, 21 N. J. L. 656 ; Pringle v. Huse, 1 Cow. (N. Y.) 432 ; Cowgill v. Wood en, 2 Blackf. (Ind.) 332 ; Rolland v. Corn., 82 Pa. 306, 22 Am. Rep. 758. The challenge must be based upon objection to all the jurors composing the panel ; Clears v. Stanley, 34 Ill. App. 338. Mere irregularity in drawing a jury is not sufficient cause to sustain a challenge to the array ; Nealon v. People, 39 Ill. App. 481; nor is the fact that a chal lenge to the array has been sustained for bias and prejudice of the officer summoning them and few of the same jurors are on the second venire ; People v. Vincent, 95 Cal. 425, g() Pac. 581; nor is the fact that one of the men named on the special venire is dead and an other removed from the county ; State v. Whitt, 113 N. C. 716, 18 S. E. 715; Smith v. Smith, 52 N. J. L. 207, 19 Ati. 255. It was a good ground of challenge to the array that no persons of African descent were selected as jurors but all such were excluded because of their race and color, on affidavit of the prisoner to that effect, no evidence having been adduced pro or con; Neal 'v. Delaware, 103 U. S. 370, 26 L. Ed. 567.