From the Richmond Dispatch, 8/29/1864, p.1, c. 6
The Dueling Case Again. – According to adjournment, the examination in the dueling case between Mr. E. C. Elmore as the principal on one side, and Mr. H. Rives Pollard as the second on the other, was resumed before Justices Riddick and Lee, of Henrico county, on Saturday last. Upon the opening of the case, Mr. John B. Young, the prosecuting attorney, called to the witness’ stand Mr. George W. Butler, and desired to know of him whether, in his evidence on a previous occasion, he did not say that, from a conversation with Mr. Elmore, he learnt that a “hostile meeting” had taken place between himself and Mr. John M. Daniel?
To this question Mr. Butler replied that he did not say that Mr. Elmore told him anything about a “hostile” meeting, but simply that there had been a meeting. If Mr. Young understood him to use the word “hostile” at all, he was sure there was some mistake.
Dr. A. E. Peticolas was then called to the stand, when certain questions were propounded by Mr. Young with reference to the time and place where the duel between Mr. Elmore and Mr. Daniel was fought, and the result.
Dr. Peticolas declined to make any answer to the interrogatories.
Mr. Young then read from the acts passed by the Legislature of Virginia in the month of January, 1859, the clause relative to dueling, which says that “every person who may have been the bearer of a challenge or acceptance, or otherwise engaged or concerned in any duel actually fought, may be required, in any prosecution against any person but himself, for having fought, or aided or abetted in such duel, to testify as a witness in such prosecution; but any statement made by such person, as such witness, shall not be used against him in any prosecution against himself,” and again repeated the same questions, informing Dr. Peticolas, at the same time, that if he persisted in his refusal to testify, painful as it was to him to have to do so, yet the oath which he had taken as the commonwealth’s prosecutor required him to move for his (Dr. Peticolas’s) commitment to prison for contempt of court, and he would not flinch from the impartial performance of his duty.
Dr. Peticolas then said, in substance, that “while I am well aware that my own words could not be used in evidence against myself, still they might indirectly lead to my prosecution. Until, therefore, I am distinctly satisfied that what I am forced to testify will not implicate myself, I prefer to stand in the position I have already assumed.”
Whereupon Mr. Young renewed his motion that Dr. Peticolas be committed to jail for contempt of court. He supported his motion in an argument of some minutes’ duration, during which he cited various legal decisions in similar cases and read from the statutes of Virginia to sustain him in the demand which he made of the Justices.
The question was further argued till four o’clock by Hon. Patrick Henry Aylett and General Humphrey Marshall, counsel for the defense, who contended that while the acts of the Legislature on the subject of dueling were couched in the language quoted by Mr. Young, yet the decision of the courts, which were paramount to any State statute, had been adverse to such practice, and therefore, it was not proper to insist upon a witness making any statement which might tend to implicate him in the criminal prosecution. Reference was also made to the trial before Judge Meredith of Messrs. Sherrard Clemens and O. Jennings Wise, who had engaged in a duel, during which that functionary sustained the position which they maintained was correct, and declined to press any questions which Roger A. Pryor, who was Clemen’s second, thought might implicate him in future difficulties. The statues on the subject of dueling passed by the Legislature were severely criticized by the counsel for the defense, and were, they contended, of such a character as, if carried out, would rob our citizens of every right of independence and justice. Messrs. Aylett and Marshall argued their points at great length, but the limited space afforded precludes us from making any extended notice of their remarks.
At a few minutes past four o’clock the motion for commitment was left in the hands of the Justices, who reserved their decision until this morning at 11 o’clock, and held the parties to bail for their appearance at that time.