Related Terms: Sudden Fight, Manslaughter, Sudden Heat

Mutual combat, as a social phenomena, is fading. Long-gone are the quasi-mandatory fist-fights between school boys, as a rite of passage into manhood. Even in places where alcohol beverages are served, mutual combat is rare even though but a generation ago, they were once commonplace in Canada, the United States, India, England, Europe, Australia....

Now, the boxing ring and the new ultra-violent, no-quarter-given "sport" of ultimate fighting is the last legal home of mutual combat with the distinction that it is not spur-of-the-moment, spontaneous.

Similarly, the defence of mutual combat in criminal law has, except in the United States and India, been mothballed. In the case of the United States, many more recent cases restrict the defence to scenarios where deadly weapons were used; almost as if the only circumstances would be where a killer killed his victim as part of an agreed-upon first-to-kill game.

Russell on Crimes, Third Edition described mutual combat as follows:

"Whereupon words of reproach, or other sudden provocation, the parties come to blows, and a combat ensues, no undue advantage being sought or taken on either side ... if death happen under such circumstances, the offence of the party killing will amount only to manslaughter.... If, therefore, upon a sudden quarrel, the parties fight upon the spot, or if they fetch their weapons and go into a field and fight, and one of them be killed, it will be but manslaughter, because it may be presumed that the blood never cooled."

According to Leader-Elliott, "mutual combat has not survived the common law or in the statute law of commonwealth jurisdictions (with the exception of India). It was absorbed by the partial defence of provocation."

This may be true but it is still part of the criminal law of the United States.

In People v Thompson, Justice Gordon of the Appellate Court of Illinois adopted this definition of mutual combat:

"Mutual combat (is) a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat."

In Donaldson v State, Justice Clarke of the Supreme Court of Georgia proposed this statement of the law (note the reference to deadly weapons):

"Mutual combat is not a mere fight or scuffle. It generally involves deadly weapons and the mutual intention of using them."

As recently as 2010, in State of Iowa v Christopher Spates, Justice Ternus of the Supreme Court of Iowa wrote that for the defence of mutual combat to apply, there must be mutual use of deadly weapons:

"Mutual combat is more than a reciprocal exchange of blows. It requires a mutual intention, consent, or agreement preceding the initiation of hostilities. A charge on mutual combat is warranted only when the combatants are armed with deadly weapons and mutually agree to fight. Thus, an express or tacit agreement to engage in violence, while sufficient, is not required; it is enough that there was a concurrent or mutual expectation that a street battle would ensue.... "To constitute mutual combat there must exist a mutual intent and willingness to fight and this intent may be manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat."

In People v Jones (2007), Justice Wolfson of the Appellate Court of Illinois wrote on behalf of his court in stating that (emphasis added):

"Mutual combat is defined as a fight or struggle entered into by both parties willingly or a mutual fight upon a sudden quarrel and in hot blood upon equal terms where death results from the combat. The evidence must show the confrontation was mutual, and both parties participated in the fight. Mutual combat does not apply where the defendant's retaliation was out of all proportion to the provocation, especially where the defendant used a deadly weapon to commit the homicide."

Consider also this 1982 statement by Justice Shadur of the United States District Court (Illinois) in United States ex rel Bacon:

"It is well settled that serious provocation may arise from a mutual combat. Our Court of Appeals has quoted the definition of mutual combat as one into which both parties enter willingly, or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms. Two other conditions must be satisfied as well: 1. the accused cannot have instigated the fight; and 2. retaliation by the accused must not be disproportionate to the provocation."

Or this from Justice Kanner of the District Court of Appeal of Florida in the 1959 case Glenn Eiland v State of Florida, where there was no mention of weapons, deadly or otherwise:

"Mutual combat is predicated upon the proposition that both parties involved are at fault, neither being the aggressor more than the other, and if in such combat one slays the other, such killing is manslaughter."

That smacks of bad law as if a person kills another in the course of an aggression which is being resisted by the victim and death ensues, it is difficult to see how a simple manslaughter charge would be imposed. Such an event that results in the death of the victim from mere blows, has most if not all the hallmarks of murder.

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