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wasn’t entitled to jury charge on mutual combat, given “Tepanca's own testimony was that he did not want to fight Sanchez–Vargas. So, even if there were evidence that Sanchez–Vargas wanted to fight, there is no evidence that Tepanca wanted to fight also.” White v. State, 287 Ga. 713, 699 S.E.2d 291 (June 28, 2010). Defendant’s convictions for murder, concealing a death and evidence tampering affirmed; notes, without resolving, conflict in case law as to whether “mutual combat requires both parties to be armed.” “There is a conflict in the case law with regard to whether there must be evidence that mutual combatants have deadly weapons in order for the jury to be charged on the law of mutual combat. Compare Jenkins v. State, 270 Ga. 607(2f) (512 S.E.2d 269) (1999); Donaldson v. State, 249 Ga. 186(3) (289 S.E.2d 242) (1982); Bangs v. State, 198 Ga.App. 404(1) (401 S.E.2d 599) (1991)) (mutual combat generally involves deadly weapons); Sinkfield v. State, 266 Ga. 726(2) (470 S.E.2d 649) (1996) (mutual combat charge is proper when there is evidence of a mutual intention or agreement to fight)), with Nelms v. State, 285 Ga. 718(4b) (681 S.E.2d 141) (2009); Hudson v. State, 280 Ga. 123(2) (623 S.E.2d 497) (2005); Demons v. State, 277 Ga. 724(3) (595 S.E.2d 76) (2004); Moses v. State, 270 Ga. 127(6) (508 S.E.2d 661) (1998) (there must be evidence that the combatants are armed with deadly weapons to authorize a charge on mutual combat). [fn: When the weapons involved are not deadly weapons per se, whether the weapons used by the combatants constitute deadly weapons is for the jury to determine. See, e.g., Simmons v. State, 172 Ga.App. 695(1) (324 S.E.2d 546) (1984) (depending on the manner and means of the use of a motor vehicle, jury could decide it was a deadly weapon). ] However, we need not resolve that conflict in this case because the instruction given the jury made no mention about the use of deadly weapons and informed the jury that there need only be a mutual intent or mutual agreement to fight and combat between two persons as a result of a sudden quarrel or circumstances indicating a purpose, willingness, and intent on the part of both to engage mutually in a fight. See Suggested Pattern Jury Instructions Volume II: Criminal Cases, § 2.10.43 (4 th ed.).” Accord, State v. Mobley , 296 Ga. 876, 770 S.E.2d 1 (March 2, 2015) (conflict again noted without resolution). Velazquez v. State, 282 Ga. 871, 655 S.E.2d 806 (January 8, 2008). Trial court properly declined to give defendant’s requested charge on mutual combat. “The evidence in this case did not authorize a charge on mutual combat. Velazquez’s own trial testimony was that he was not an aggressor in the encounter with Cruz, but started stabbing Cruz in an effort to defend himself. See McKee v. State, 280 Ga. 755, 756(2) (632 S.E.2d 636) (2006).” Hudson v. State, 280 Ga. 123, 623 S.E.2d 497 (December 1, 2005). “Because there was no evidence that the victim in this case was armed with a deadly weapon, a charge on mutual combat was not warranted by the evidence. [Cits.]” Millen v. State, 267 Ga.App. 879, 600 S.E.2d 604 (May 6, 2004). “If there is some evidence from which the jury could find that both parties intended to resolve their differences by fighting each other with deadly weapons, then a charge on mutual combat is justified. [Cit.] There was evidence that Millen and [victim] had been fighting throughout the evening; that he was armed at first with a knife and later with a shotgun; that [victim’s] son brought a rifle to the house and fired it; and that [victim] and her son then went upstairs to confront Millen. This evidence was sufficient to support the mutual combat charge.” “Mutual combat is not a complete defense to a murder charge; rather, it is a defense which, if accepted by the jury, may result in reduction of the crime to voluntary manslaughter. [Cit.] But if the defendant has withdrawn from the mutual combat and later kills in self-defense, then the killing may be justified and the defendant may be found not guilty. [Cit.] The court’s instructions adequately conveyed these principles to the jury.” Demons v. State, 277 Ga. 724, 595 S.E.2d 76 (March 29, 2004). “Demons … contends that the trial court erred in failing to charge the jury on mutual combat. Such a charge was not warranted, as there was no evidence that Demons and the victim ‘were both armed with deadly weapons and mutually intended or agreed to fight. [Cits.]’ Moses v. State, 270 Ga. 127, 130(6) (508 S.E.2d 661) (1998).” Accord, Hudson (December 1, 2005), above. Jenkins v. State, 270 Ga. 607, 512 S.E.2d 269 (February 8, 1999). “It was not error for the trial court to refuse to charge on mutual combat because there is no evidence of a mutual agreement to engage in a fight. Mutual combat requires that both parties are at fault and are willing to fight because of a sudden quarrel. McClendon v. State, 231 Ga. 47(3), 199 S.E.2d 904 (1973). Mutual combat generally involves deadly weapons and the mutual intention of using them. Donaldson v. State, 249 Ga. 186(3), 289 S.E.2d 242 (1982). The trial court did not err in refusing to give a mutual combat charge because there was no evidence of a mutual intention to fight in this case.”
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