Criminal Law. The term “affray” refers to the crime of fighting of two or more persons in some public place to the terror of the people.
Mere words are insufficient to constitute affray. However, if one person, by such abusive language toward another as is calculated and intended to bring on a fight, induces the other to strike him, both are guilty of affray.
Encyclopedia Britannica (1911):
AFFRAY, in law, the fighting of two or more persons in a public place to the terror (al’ effroi) of the lieges. The offence is a misdemeanour at English common law, punishable by fine and imprisonment. A fight in private is an assault and battery, not an affray. As those engaged in an affray render themselves also liable to prosecution for Assault (q.v.), Unlawful Assembly (see Assembly, Unlawful), or Riot (q.v.), it is for one of these offences that they are usually charged. Any private person may, and constables and justices must, interfere to put a stop to an affray. In the United States the English common law as to affray applies, subject to certain modifications by the statutes of particular states (Bishop, Amer. Crim. Law, 8th ed., 1892, vol. i. § 535). The Indian Penal Code (sect. 159) adopts the English definition of affray, with the substitution of ” actual disturbance of the peace” for “causing terror to the lieges.” The Queensland Criminal Code of 1899 (sect. 72) defines affray as taking part in a fight in a public highway or taking part in a fight of such a nature as to alarm the public in any other place to which the public have access. This definition is taken from that in the English Criminal Code Bill of 1880, cl. 96. Under the Roman Dutch law in force in South Africa, affray falls within the definition of vis publica.
State v. Kikuta, 125 Haw. 78 (2011):
Mutual affray is `a fight or scuffle entered into by mutual consent . . . A defense which mitigates that crime from a misdemeanor to a petty misdemeanor when the assault is committed during a fight or scuffle entered into by mutual consent. In other words, mutual affray is a mitigating defense that reduces the offense of Assault in the Third Degree to a petty misdemeanor.
Nottingham v. State, 135 A.3d 541 (Md. Sp. App. 2016):
Affray is the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people. Although affray shares common elements with common law assault and battery, it is, unlike assault and battery, not a crime against the person; rather, affray is “a crime against the public and its aim is to protect the peace.” Hickman v. State, 193 Md.App. 238, 252, 996 A.2d 974 (2010).
Hickman involved facts not dissimilar to those before us in this appeal, i.e., a barroom fight escalating into the death of one of the participants. Writing for the Court, Judge Arrie Davis, observed that the case was “one of first impression, namely, whether the common law crime of an affray exists in Maryland[.]” Hickman, 193 Md.App. at 247, 996 A.2d 974. Discussing the crimes of assault and battery, vis a vis, the then-recent legislative re-codification of those common law offenses into statutory offenses, the Court held that affray remains as a viable, chargeable common law offense in Maryland.
In so holding, the Court pointed out that “[u]nlike other states, which have codified the common law offense of affray, Maryland has not and, therefore, if the offense exists, it is clearly only as a matter of common law.” The Court further observed that “Maryland case law does demonstrate that common law affray has, historically, been a chargeable common law offense.”