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253.5 Mutual Combat And Self Defense

    253.5.1 Mutual Combat As Basis For Self Defense: Requirement Of Agreement To Fight Prior To Beginning Of Combat
    253.5.2 Mutual Combat: Requirement Of Mutual Intent To Fight
    253.5.3 Mutual Combat: Nondeadly Combatant Need Not Withdraw From Deadly Counter-Attack

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PRACTICE NOTE: See People v. Cuevas (CO 1987) 740 P2d 25, 26 ["an agreement to fight must exist between the parties, and the agreement must have been entered into prior to the beginning of the combat"].

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PRACTICE NOTE: Mutual combat is defined as 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 ...." (People v. Austin (IL 1989) 549 NE2d 331, 334.)  Thus, mutual combat requires a mutual intent to fight.  (Wharton’s Criminal Law (West, 15th Ed. 1993) § 161, p. 361.)

    However, a fight does not constitute mutual combat where one of the parties acts in self-defense. Struggling with an attacker in an effort to ward off or defend one's self against an assault is not sufficient to warrant a mutual combat or provocation instruction. (People v. Perry (IL 1997) 686 NE2d 677, 683.)

Mutual Combat. Wharton’s Criminal Law (West, 15th Ed. 1993) § 136, pp. 225-28.

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RATIONALE: The general pattern instructions may mislead the jury into believing that the only way an mutual combatant may regain the right to self defense is by withdrawing. This is not true if a nondeadly mutual combat was escalated into a deadly encounter.

POINTS AND AUTHORITIES: Although those who engage in mutual combat normally have no right to self defense, it has been recognized that a nondeadly aggressor may use self defense if the other participant suddenly uses deadly force. (See generally FORECITE National™ 253.4.6.1 [Availability Of Self Defense To Aggressor Using Deadly Force: Instruction On Withdrawal].)  If the use of force by the deceased escalated to such a degree that the defendant reasonably believed he was in imminent danger of death or great bodily harm, the defendant’s use of deadly force would be justifiable in self defense. (Wharton’s Criminal Law (West, 15th ed. 1994), § 136.) Instructions which fail to convey this principal should be modified when appropriate. (See e.g., UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1111 [Defense--Use of Physical Force in Defense of Person--Mutual Combat] (Oregon State Bar, 1994) [mutual combat instruction fails to include this exception].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    A person who participated in nondeadly mutual combat, such as a fist fight, need not withdraw if the other combatant unexpectedly used deadly force.

[Source: FORECITE National™.]