Elements of Affray and defenses. Dashiell v. State.


Brief Brief Dashiell v. State, 214 Md. App. 684 (2013)

Issue: Elements of Affray and defenses.

Background: Defendant was convicted of involuntary manslaughter.  On appeal, three issues were raised: 1) whether the trial court erred in instructing the jury that self-defense is not a defense to affray; 2) whether the trial court erred in allowing the jury to consider affray as an unlawful underlying act for involuntary manslaughter because the State failed to show that the fight occurred in public or caused terror to the people; and 3) whether the trial court erred in refusing to instruct the jury that defense of property may be a defense to assault and affray.  Case was reversed and remanded due to issue one.  Issues two and three discussed due to probability of retrial. Id. at 688.


“An ‘affray,’ a common law offense, has been defined as ‘the fighting together of two or more persons, either by mutual consent or otherwise,  in some public place, to the terror of the people.’” Id. at 689 citing Hickman v. State, 193 Md. App. 238, 248 (2010).

“To establish an affray,  the State need only show that the acts and surrounding circumstances were ‘likely to strike terror in anyone,’ not that it actually has in any specific individual.” Id. at 691 citing State v. Schlamp, 390 Md. at 737.

“Self-defense… may be invoked as a defense to affray.” Id. at 691.

“There are two ways a fight may be deemed ‘mutual’ for the purposes of affray.  To be found guilty, a person ‘must be unlawfully fighting,  either by agreement,  or have brought the fight himself.’  But whether ‘mutuality’ means that there was an agreement to fight or that the accused provoked the fight, mutuality remains a question of fact and thus falls within the provenance of the finder of fact.” Id. at 695 citing Atkins v. State,  421 Md. 434, 443 (2011).

“It is incumbent,  upon the trial court, upon request,  to instruct the jury regarding self-defense,  whenever that issue s generated by the evidence.” Id. at 695.

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