People v. Rodgers

GRIFFIN, J.

Defendant was charged with the offense of manslaughter, ie., violating section 192, subdivision 3(a), Penal Code. The jury returned a verdict finding defendant guilty under subdivision 3(b), section 192, Penal Code, a “misdemeanor” (an included offense). It further found that the act causing death was done “without gross negligence.” Defendant was granted probation.

[167]

The only question presented in the briefs on this appeal involves certain given and refused instructions.

Defendant offered one which, in effect, would have told the jury that if it found that deceased was driving his vehicle at such a slow rate of speed as to impede or block normal traffic and such reduced speed was not caused by any of the exceptions enumerated, and if it found that such reduced speed had a causal connection with the happening of the accident and without which the accident would not have happened, then the jury must find defendant not guilty. In another instruction, refused as covered, the jury would have been told that if the accident was proximately caused by the conduct of the deceased, the defendant could not be guilty of the offense charged.

The trial judge did give an instruction to the effect that if it be a fact that decedent was guilty of negligence which was a contributing cause of his death, it was no defense if the

defendant’s

own conduct was the

probable cause

of the death and if it constituted manslaughter. Counsel for defendant argues that this last instruction may be sound, as far as it goes, but nowhere did the court instruct the jury that if the conduct of the

decedent

was the

proximate cause

of his own death, the jury would be precluded from finding the defendant guilty.

It has been repeatedly held that contributory negligence is not available as a defense or excuse for crime.