GA 2.10.43 Murder; Mutual Combat
If you find form the evidence that there was between the defendant and the deceased a mutual combat (that is, a mutual intent or mutual agreement to fight), then you will consider the rules of law concerning mutual combat and apply them to the evidence. But if you find from the evidence that there was no mutual combat, you will not consider this law.
Mutual combat occurs when there is combat between two persons as a result of a sudden quarrel or such circumstances as indicate a purpose, willingness, and intent on the part of both to engage mutually in a fight. (It is not essential to constitute mutual combat that blows be struck or shots be fired.) There must be a mutual intent to fight or engage in combat. The existence of intent to engage in mutual combat may be established by proof of acts and conduct, as well as by proof of an express agreement.
If you find that there was a mutual intention on the part of both the deceased and the defendant to enter into a fight or mutual combat and that under these circumstances the defendant killed the deceased, then ordinarily such killing would be voluntary manslaughter, regardless of which party (struck the first blow)(fired the first shot).
Under some circumstances, such killing may be murder, or it may be justifiable.
If you find that the killing was done with malice, express or implied, and with a felonious intent to take the life of the person killed, and the killing was accomplished as a result of mutual combat, such killing would be murder.
The killing as a result of mutual combat may be justifiable, and you may find it to be so if it appears that the defendant reasonably believed at the time of the killing that the force the defendant used was necessary to prevent death or great bodily injury to the defendant (or a third person) or to prevent the commission of a forcible felony, and if it appears that the deceased was the aggressor. If it appears that the deceased was not the aggressor but that the defendant was the aggressor, then in order for the killing to be justified, if such killing was the result of mutual combat, it must further appear that the defendant withdrew from the encounter and effectively communicated to the deceased the intent to do so, and the deceased, notwithstanding, continued or threatened to continue the use of unlawful force.
If you should believe from all of the evidence in this case that there was no mutual intent to fight or mutual combat between the defendant and the deceased, then you may determine whether or not the deceased used words, threats, menaces, or contemptuous gestures toward and against the defendant and, if so, whether or not they were sufficient to cause the defendant to reasonably believe that the force the defendant used, if any, was necessary to prevent death or grave bodily injury to the defendant (or a third person) or to prevent the commission of a forcible felony. Such words, threats, menaces, or contemptuous gestures may or may not be sufficient to cause such reasonable belief on the part of the defendant, it being solely a question for you, the jury to determine from a consideration of the evidence in this case.