No, because a crime is prosecuted not on behalf of the victim, but on behalf of the State (or “the People”), who have a vested societal interest in the prevention of criminalized activity. In a sporting event, on the other hand, as in other civil situations (civil as opposed to criminal), a party can defend on the basis of assumption of risk – i.e., that the participant knew of the likelihood or chance of injury if he or she took part in the activity. You see this all the time in cases involving, say, sky-diving. Or skiing.
But there is no way to “assume the risk” of violent crime. Not by walking down a dark alley, not by wearing provacative clothes, and not by agreeing to engage in a duel. If we define “murder” as “the intentional and unlawful killing of another human being,” then a duellist who kills his opponent is criminally liable for murder unless duelling is itself a defense – which, AFAIK, it no longer is in any state.
The State, as the prosecuting party in interest in a criminal case, does not care if the parties have agreed to try to kill each other or not. And the State is not bound to honor what would be an illegal contract (duelling being illegal), as well as a contract void on the grounds of public policy (the policy being to discourage duelling).
The victim’s assent to being murdered (or in the attempt) does not change the analysis of whether or not a murder has in fact been committed, which turns on how “murder” is defined, which in turn varies from jurisdiction to jurisdiction. That is why in many jurisdictions, assisted suicide can be considered murder as well, despite the fact that the victim consents and even seeks his own death.
Here is the Witkin citation and quote, it is from a older edition:
[§884] Affray and Dueling.
2 Witkin, Cal. Criminal Law (2d ed., 1988) Crimes Against Public Peace And Welfare, §884, p.1011.]
(a) Affray. An affray is a fight between two or more persons in a public place. The fight must be mutual; an ordinary attack and self-defense is not an affray. And it must be public; otherwise it does not tend to disturb the peace. Affray is sometimes a specifically defined misdemeanor, but in California, it comes within the general prohibition against “fighting” in P.C. 415 (supra, §882). (See generally Perkins 3d, p. 479; 4 Wharton, Crim. Law, §556 et seq.)
(b) Dueling. “A duel is any combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel.” (P.C. 225.) The practice is subject to heavy penalties: (1) A duel resulting in death within a year and a day is a felony, subject to imprisonment in state prison for 2, 3 or 4 years. (P.C. 226.) (2) Fighting or sending or accepting a challenge is a felony-misdemeanor, punishable by imprisonment in state prison, or in county jail for not more than 1 year. (P.C. 227.) In addition, the dueler and anyone acting as second or otherwise knowingly aiding is disqualified from the right to hold office or vote. (P.C. 228 [with deadly weapons], P.C. 232.) (3) Publication concerning another’s [*pg.1012] failure to send or accept a challenge or to fight is a misdemeanor. (P.C. 229.) (4) A judge, sheriff or other peace officer who with knowledge does not attempt to prevent a duel is punishable by a fine of not over $1,000. (P.C. 230.)
In People v. Green (1971) 15 C.A.3d 524, 529, 93 C.R. 84, defendant contended that the jury which convicted him of first degree murder should have been instructed on dueling as a lesser included offense. Held, no error. Over 100 years ago, the California Supreme Court held that fighting a duel with fatal results was not murder but rather a special offense under the dueling act. Here, the facts illustrate the differences between murder and dueling. Although there was some suggestion that the parties would arm themselves and there was a previous quarrel, “at the time of the actual killing the victim was unalerted by any previous agreement, completely unarmed with a deadly weapon and trapped and unable to escape; there was the antithesis of ‘combat’ by previous agreement or upon a previous quarrel.” (15 C.A.3d 529.)
Witkin is persuasive authority, and the court may rely on it, but is not required to.
Yes, I agree that assumption of the risk does not excuse a criminal act because it is prosecuted on behalf of the people. My criminal law background is non-existent. Nor would I be surprised to find someone charged with murder and various gang related laws for dueling. But if someone had been charged when the law was originally passed, I would be surprised to see murder thrown in. The law was passed because people were dueling back then and it was not considered murder. Nobody duels anymore. There is no social pressure to avenge your honor with blood. But I would still expect an argument that since dueling is specifically described in the law and carries a lesser penalty, that it is not murder. No court has ruled on it (as far as I know), so we are all just speculating.
Dueling laws were repealed in California several years back. So ignore everything I said previously. That is what I get for using an outdated book. The current penal code does not list the word “duel”. So the discussion was what the law used to be. There are other laws prohibiting fights to which presumably murder and other lesser charges could be added.
Yes, but that’s not quite the same. A heroin overdoes requires posession of an illegal substance, which in itself is illegal.
Knives aren’t the same either: the nature of a firearm is that it can be accidentally discharged, resulting in serious or fatal injury. You cannot similarly “accidentally discharge” a knife, so someone with a gaping knife wound has in all liklihood been stabbed by someone else. - MC
Actually I have 2 friends who were involved in ‘accidentally discharging’ a knife. In both case alcohol was involved and the cops were called by the hospital. Also, the cops never did believe the true story, but eventually they got tired of questions us and went away.
Nothing you posted supports your view that duelling with fatal results is not murder, with the exception of the 100-year-old, uncited “California Supreme Court” ruling. The People v. Green case seems to specifically stand for the proposition that duelling, under the facts in the case, is not a lesser-included offense of murder. Of course, it could be that the accused simply failed to raise the required “scintilla of evidence” that warrants a lesser-included offense instruction.
Criminal law does not work that way. Just because duelling is also a crime, and the facts fit both duelling and murder, does not obligate the prosecutor to charge duelling. He may just as easily charge murder. This is not mere “speculation” - the existence of a specific, lesser charge does not erase the greater charge.
If California allows an affirmative defense of ‘duelling’ to a charge of murder, I’d like to see some evidence of that. Without it, you are left with an unnamed 100 year old case that is almost certainly not good law now.
RICK, mon ami, DP just posted “ignore everything I have said” in light of the fact that the duelling laws he was relying on have been repealed. So you can’t really expect him to defend a position he has abandoned as being untenable in light of the change in the law. I give him kudos for pointing out the change himself; I know by hard experience that crow feathers really stick going down.
As stated earlier, the law has been repealed. A 100 year old Supreme Court case is still good law where I come from unless it has been overruled. This case does not describe a duel, but rather a murder. Dueling is a crime, not an affirmative defense. A lower court is obliged to follow 100 year old Supreme Court precedent.
Now, I am well aware that there is a doctrine of lesser included charges, but does anyone have a cite showing that dueling can also be charged as murder? I haven’t heard of one.
Eh. Not really, unless you’re dealing with extremely specific, archaic, blow-the-dust-off-it laws, and how often do those come up?
Most laws of any relevance have been updated, either through enactment or through case law, within the past hundred years. Those that have not should be suspect, because one wonders why they have not been – was the law, say, repealed altogether, or superceded by another law? Laws that have not been touched in a century are laws with little, if any, relevance to today.
Well, since you like old citations, and duelling is obviously an old topic, here’s one: People v. Bush, 3 P. 590 (Cal.1884): “Independent of the statute concerning dueling, it has been held that “when parties by mutual understanding engage in a conflict with deadly weapons and death ensues to either, the slayer is guilty of murder,” and we do not think there is anything in the circumstances attending the killing in this case to take it out of the general rule.” (Citations omitted.)
This citation notwithstanding, it appears that duelling formerly was not a type of murder but rather a specific crime under the duelling statutes – those same statutes that have since been repealed. See People v. Green, 15 Cal.App.3d 524 (1971). But the statutes making it a separate crime are gone, and we are left with the statutory definition of “murder” which in California is “the unlawful killing of a human being with malice aforethought.” Cal. Pen. Code sec. 187. So the question is not whether I can give you a citation for the proposition that the old custom of duelling is in fact the commission of murder today, but whether you can give me any citation or rationale why the killing of a person under the circumstances of a duel would not be murder.
Frankly, I find the People v. Bush citation to be binding for the proposition that it is murder.
As for the 100 year old cases, unless they are overruled (or the legislature changes the statutes on which they are based) they are law. This, of course, only comes up when there isn’t something more recent. In most jurisdictions they are not allowed to publish cases that merely repeat a previous case. (Unpublished opinions are IMHO a gross violation of due process, but that is another battle (and losing at that!)) How often do they come up? Not very, but dueling is a fine example.
Well, there’s your problem right there. Green cites earlier cases than Bush for the proposition that duelling is not murder, and also cites the (then extant) laws apparently making duelling a different crime than murder. So which case are you gonna believe? Under the old rule of “last in time is right,” we’ve got to go with Green, duelling != murder because duelling is a separate law. But now duelling is not a separate law, because the law has been repealed, so arguably duelling is murder – not because of the 125 year old Green case, but because it meets the modern definition of murder. Why blow the dust of archaic law when you can reach the same result by applying current, and therefore far more pursuasive and binding, authority?
For this reason, duelling is not a fine example. Whether it is or is not murder depends on the law today, as applied today (even hypothetically). It does not depend on the law of 125 years ago, before the enactment of statutes that were in place for years and then repealed.
Frankly, I can’t think of a question of law so specific and archaic that you’d have to rely on century-old cases to make your point, and I would suggest, as a general proposition, that if you are relying upon such cases as primary authority, you may be in trouble. It never says anything good about the point you’re trying to shore up that you can’t find anything more recent than that.
Well yes. But Green (other things being equal, and I understand they are not) is a lower court than Bush. And as judges I know are fond of saying, 100 year old Supreme Court dicta is good enough for me. Be that as it may, dueling is illegal, which was the original question. Could someone be indicted for murder for a duel? You can indict a ham sandwich for violating the dietary laws if you have a pliant grand jury. (Most in California are done by information, that is a preliminary hearing as seen so often in the Perry Mason series). I suspect a judge would go for it.
Yes, it is always nicer to have more recent authority, but you don’t always. But with the publishing rules the way they are, you don’t always have a recent case.
I’ve been whining for several years now that with the internet there is no reason not to officially publish every single case on line. I’ve seen a lot of weird stuff in unpublished decisions. Unpublished decisions are a private law unto themselves, but I’m hijacking again!
In seems as though we’re in substantial agreement as to the answer of the question posed in the OP, even if we’re getting there by different methods - were we an appellate panel, then, we’d be concurring in the result.
There’s a potential GD thread about what the rules for publishing opinions ought to be. I’m not sure it would be of interest to any but lawyers, though. Briefly, I, too, have seen some disturbing things in unpublished opinions. If it were up to me, about the only opinions I’d leave unpublished are ones that, in essence or in fact, summarily affirm a decision because the facts are identical to an earlier or contemporaneous case. The whole point of a system of precedential case law is that we can ensure similarly situated defendants are treated similarly. Publishing the majority of cases handled, in this day and technology age, is not an onerous task. Because many crucial items - evidentiary rulings, sentencing decisions, and so forth - are left to the discretion of the court, appellate courts will not be hamstrung by previous rulings.
So, in general, I agree with the basic proposition that both intermediate and final appellate courts should limit their unpublished opinions.
FOR OVER A CENTURY, IT’S been illegal in Canada to “challenge or attempt by any means to provoke another person to fight a duel, attempt to provoke a person to challenge another person to fight a duel, or accept a challenge to fight a duel,” according to Section 71 of the country’s Criminal Code.
The penalties for breaking this law are up to two years in prison—but that might be about to change. This week, a member of Parliament introduced legislation to update antiquated sections of that code. Under the proposal, Section 71 would be removed entirely.
Again Leo, as was hashed out 16 years ago, just because we abolish a law against dueling that doesn’t make it legal to kill someone in a duel. That’s because we have a law against murder, and killing someone in a duel is murder.
Now it is true that it used to be the case in the olden days that if you challenged someone to a duel, and killed them in that duel, you were not held to have murdered that person. But this led to all kinds of bad effects, so laws against dueling were passed. And on top of that, dueling was now considered murder. And the laws against dueling were there not so that you could be charged with dueling while standing over the corpse of your opponent, but so you could be charged for merely arranging a duel, even if you hadn’t actually killed the guy yet.
In Missouri it’s illegal for anyone in military service to the state (i.e., a member of the National Guard or militia) to duel, assist, or fail to report even knowing about a duel.
[QUOTE=escapol]
Is there is a law that says you cannot make a contract with someone, whereby the outcome of that contract happens to be your death.
[/Quote]
For regular civilians, the law doesn’t specifically mention dueling, but it does talk about consent only being allowed if “The physical injury consented to or threatened by the conduct is not serious physical injury”
