Mutual combat in SC can be a confusing subject – I’ve had people ask me several times, “is mutual combat a defense in my case?”
The answer is no – mutual combat in SC is not a defense.
If you get into a fight with someone and it’s mutual, with both sides willingly participating, that is not a defense to assault and battery, murder, or manslaughter.
The doctrine of mutual combat is a prosecution theory used to foreclose self-defense – if the jurors find the defendant engaged in mutual combat, then the defendant “brought on the difficulty” and the first element of self-defense, that the defendant had no part in bringing on the difficulty, cannot be met.
SC appellate courts have addressed mutual combat in several recent opinions:
- State v. Young – lays out the elements of mutual combat in SC, the types of offenses that mutual combat applies to, and the added twist of what happens when an innocent third party is killed during mutual combat,
- State v. Bowers – the SC Court of Appeals reversed manslaughter and ABHAN (assault and battery of a high and aggravated nature) convictions where the trial judge instructed the jurors on mutual combat when 1) there was no evidence to support a mutual combat instruction and 2) the instruction given was confusing and incorrect, and
- State v. Bowers – the SC Supreme Court affirmed the Court of Appeals’ decision, finding that the incorrect jury instruction prejudiced Bowers as to all charges including the ABHAN conviction.
What is Mutual Combat in SC?
The doctrine of mutual combat has been recognized in SC since at least 1843. To prove mutual combat:
- There must be a mutual intent and willingness to fight;
- There must be an “agreement” to fight between the parties;
- Both sides must be armed with weapons; and
- Each side must know that the other is armed.
In State v. Young, the SC Court of Appeals upheld Young’s murder conviction when Young and another individual (Robinson) were shooting at each other for about an hour, at the end of which Robinson fired several shots at Young which missed, instead striking and killing a child jumping on a trampoline nearby.
The Court held that Young was responsible for the shot fired by Robinson because Young agreed to engage in mutual combat with Robinson, and Robinson’s shot, intended for Young, caused the child’s death.
Can I Be Convicted of Murder if the Other Person Agreed to Fight?
The SC Supreme Court has previously held that “where two persons mutually engage in combat, and one kills another, and at the time of the killing it be maliciously done, it is murder…”
The elements of murder in SC include 1) the unlawful killing of another person, 2) with malice aforethought.
It does not matter if the other person agreed to the combat – if the killing was unlawful and done with malice aforethought, it can result in a murder conviction in SC.
Can I Be Convicted of Manslaughter During Mutual Combat in SC?
You could be convicted of voluntary manslaughter, but not involuntary manslaughter, during mutual combat in SC.
The SC Supreme Court has held that if there is an unlawful killing, “done in sudden heat and passion upon sufficient provocation without premeditation or malice, it would be manslaughter.”
Voluntary manslaughter in SC consists of:
- The unlawful killing of a person,
- In sudden heat of passion,
- Upon sufficient legal provocation.
Involuntary manslaughter most likely would not apply in any mutual combat case, because involuntary manslaughter involves:
- The unintentional killing of another without malice but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or
- The unintentional killing of another without malice while engaged in lawful
Mutual combat – which requires that both parties be armed – is an unlawful activity that would naturally tend to cause death or great bodily harm, and therefore involuntary manslaughter would not apply.
Can Multiple People Be Convicted of Murder During Mutual Combat in SC?
In State v. Brown, a 1918 case, the SC Supreme Court upheld the manslaughter convictions of five defendants under a mutual combat theory.
Ten men were in a fight, and one of them died from knife wounds – the Supreme Court held that every participant in the fight could be convicted for the death, even if they did not have a deadly weapon at the time, because the consequences of engaging in the fight were foreseeable:
…every one is presumed to know the consequences of his act, and if one voluntarily enters a mutual combat where deadly weapons are used, knowing that they are being used, and death results to one of the participating parties, every one engaged in such combat is equally guilty, regardless of whether he used a deadly weapon or not. And regardless of whether he was on one side or the other makes no difference, and where all are participating in the mutual combat, all are equally responsible for the natural consequences.
What is an “Agreement to Fight?”
The Court says that there must be an “agreement to fight” before someone can be convicted of mutual combat in SC – what kind of evidence is necessary to establish an “agreement to fight?”
The parties do not have to verbally say, “do you want to fight? Okay, let’s go…” More often, an “agreement to fight” is established through circumstantial evidence.
For example, in State v. Young, the Court found that the “antecedent agreement to fight” could be “shown by evidence establishing a pre-existing dispute or ill will between the combatants.”
“The intent to fight may be manifested by the acts and conduct of the parties and the circumstances surrounding and leading up to the combat.”
In State v. Young, the Court found that there was enough evidence of an agreement to fight where:
- Robinson fired shots at Young;
- Young got a gun and then chased Robinson;
- Young shot Robinson’s car approximately 20 times;
- Robinson shot back at Young as Young chased him; and
- Robinson fired the final shots that killed the child.
Can You Withdraw from Mutual Combat?
Withdrawal from the fight is a defense to mutual combat:
Where a person voluntarily participates in . . . mutual combat for purposes other than protection, he cannot justify or excuse the killing of his adversary in the course of such conflict on the ground of self defense . . . unless, before the homicide is committed, he withdraws and endeavors in good faith to decline further conflict, and, either by word or act, makes that fact known to his adversary . . . .
In State v. Young, the Court found that there was no evidence that Young withdrew from the conflict before the child was killed, however.
What is Transferred Intent in SC?
Possibly the most confusing part of the Young case is how Young was convicted of murder when Robinson fired the shot that killed the child…
First, Young was engaged in mutual combat, and therefore he was responsible for any deaths that occurred as a result of the conflict.
Next, the death of the child was murder under the doctrine of “transferred intent.” Because Robinson intended to kill Young when he fired the shot, that intent to kill is “transferred” to the bystander who was shot – it does not matter if he killed his intended target or an innocent bystander, it can be murder under the theory of transferred intent.
According to the Court, the child’s death was a “natural consequence” of Young’s combat with Robinson because:
- Young admitted to police that he knew there were children present, and he saw them playing on the trampoline;
- Young chased Robinson into the neighborhood while firing shots from a semi-automatic weapon; and
- Robinson fired the final, fatal shots as Young fled after his gun jammed.
Criminal Defense Lawyer in Myrtle Beach, Columbia, and Lexington, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
