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Gregory V Smith, Esq. J.D. criminal attorneys martinsburg wv says: As the rule of law has developed in Tort it has also supported the concept of mutual fray and its effect on self-defense as pointed out in Restatement (Second) of Torts � 69(a) (1965), treats deliberate provocation by words or conduct as a consent to bodily contact. Comment a states in part: Mere provocation by words or conduct, no matter how insulting, does not destroy the privilege of self-defense, even though a reasonable man should realize that the provocation will probably induce the attack. But if the actor actually intends his provocative words or actions to induce an attack, they amount to a challenge to fight, and, as such, to a consent similar to that given in a case of mutual affray. In the case of a fight or affray by mutual consent, each party gives consent to those blows from which he is unable to protect himself. But each consents to the other using such force as is reasonably necessary to defend himself against his opponent's attack." [www.wvacriminallawyer.com go here] criminal lawyers martinsburg wv says: It should be borne in mind, however, that such evidence is admissible only in mitigation of the punitive damages claimed, and not for the purpose of mitigating the actual damages inflicted, A different view was taken in some of the earlier decisions, particularly by the Wisconsin court in the leading case of Morley v. Dunbar, 24 Wis. 183. But the majority of modern decisions limits mitigation to exemplary damages. 2 R, C. L. 587, par. 68; 5 C. J. 676, par. 116; Prentiss v. Shaw, 56 Me. 427; 96 Am. Dec. 475; Goldsmith's Admr. v. Joy, 61 Vt. 488. Even the Wisconsin court, in the case of Grace v. Dempsey, 75 Wis. 313, cites with approval the holding in the case of Goldsmith's Admr. v. Joy, supra, and concedes "Of course a plaintiff's compensatory damages are limited to such as he actually sustains under all the circumstances, and it is such actual damages that cannot be lessened, A like conclusion was reached by Judge Poffenbarger in Alderson v. Kahle, 73 W. Va. 690 (696). The minority[100 W.Va. 697]rule is not consistent with other well established principles of the law of damages. A non compos mentis is responsible for the actual damages he does to persons or property. Why should courts be more indulgent to a rational being, even though he be temporarily irrational? The exponents of the minority rule disclaim any intention of departing from that palladium of peace and order the rule that mere words never justify an assault. Yet if words are permitted to diminish the actual damages resulting from an assault, justification in part or to a degree is effected, no matter that the process is called mitigation instead of justification. If the actual damages committed in an assault be $100.00, but because of provocation the jury is permitted to reduce its verdict to $50.00, then the provocation is in reality a defense to or justification of the injury to the amount of $50.00. If mitigation of the actual damages be permitted at all, then it follows logically that the greater the provocation, the more the mitigation. In case of extreme provocation, does not the minority rule point to a mitigation of all actual damages? top criminal attorneys martinsburg wv says: [www.wvacriminallawyer.com top criminal lawyers martinsburg wv] "If a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it, and gives notice that he has done so.").State v. Riley, 137 Wash.2d 904, 976 P.2d 624, 627 (1999) (citation omitted). See also 6 Am. Jur.2d Assault and Battery � 62 (1999) See also State v. Smith, 295 S.E.2d 820, 170 W.Va. 654 (W.Va., 1982). Also to be noted that In Fight by Mutual Consent, Mere Fact That One of Parties Seeks Opponent Will Not Prevent Him From Recovering for Injuries Received. (Assault and Battery, 5 C. J. �� 119, 135.)[www.wvacriminallawyer.com criminal attorneys martinsburg wv] top criminal lawyers martinsburg wv says: The state of the criminal law is that where both parties voluntarily and willing entered into a fight our client will need evidence to support his self-defense instruction that it was a fight by mutual consent and that he had abandoned the fight and was trying to withdraw from it. Gregory V. Smith, J.D. Criminal Defense Attorney West Virginia All Rights held