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Frambes v. State9/21/1999
s that the jury could acquit only if it was convinced beyond a reasonable doubt that Mr. McNair was the sole proximate cause of his own death. If the evidence placed a belief in the minds of jurors that Mr. McNair may have been the sole cause, a belief sufficient for them to have a reasonable doubt that Frambes's drunkenness was any part of the cause, then acquittal was required.
. The State on rehearing asserts that contributory negligence is not a defense to manslaughter. Dickerson v. State, 441 So. 2d 536, 538 (Miss. 1983). The manslaughter statute being interpreted in Dickerson requires that the death occur because of the "culpable negligence of another," which certainly does not imply that the negligence must be the sole cause. Id. at 538; Miss. Code Ann. § 97-3-47 (Rev. 1994). The State would apply the Dickerson holding to the present prosecution since another case holds that manslaughter caused by a person's driving while intoxicated is a lesser-included offense of this manslaughter statute. Evans v. State, 562 So. 2d 91, 96-97 (Miss. 1990); Miss. Code Ann. § 63-11-30 (4) (Supp. 1998). Though the statutory elements of the two crimes are quite different, this rule applies at least when the charge of culpable negligence manslaughter arises from a vehicular accident with an intoxicated driver. Mayfield v. State, 612 So. 2d 1120, 1125 (Miss. 1992). DUI manslaughter would not appear to be lesser-included under traditional analysis, which requires that the lesser offense contain no element not in the greater. Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985). Focusing on the elements of the offense was rejected in Mayfield.
. Therefore I agree with the majority here that some contribution to the cause of death either by the deceased or by a third party would not be a "defense" to DUI manslaughter, just as it is not a defense to culpable negligence manslaughter. The statute provides that any person driving under the influence "who in a negligent manner causes the death of another" is guilty of this felony. Miss. Code Ann. § 63-11-30 (4). Though the negligent actions of the deceased cannot be a defense, they can be quite relevant as to causation. The defendant's intoxication and resulting negligent driving must have caused the death. I take that to be traditional causation analysis that "but for" the actions of the accused the death would not have occurred. The negligence of the accused need not be the sole cause, which is why the contributory negligence of the deceased or of a third party are not a defense. Still, the actions of the deceased or a third party cannot be solely responsible for the death. The distinction is simple: a deceased's contribution to his own death does not exonerate a defendant who also contributed to the death; however, if a defendant is not any part of the cause of death, that prevents criminal liability.
. I agree with the State that contributory negligence is an irrelevant concept. What is relevant and therefore made the instruction harmful, is that the burden is on the State to prove beyond a reasonable doubt that but for Frambes's negligence in driving while intoxicated, Mr. McNair's death would not have occurred. The erroneous instruction required the jury to convict unless it believed beyond a reasonable doubt that Mr. McNair was the sole proximate cause; instead the jury only had to fail to believe beyond a reasonable doubt that Frambes's actions were a cause. The fact that other instructions not mentioned here better described the proper burden does not remove the harm from the challenged instruction.
. I concur.
McMILLIN, C.J., JOINS THIS SEPARATE OPINION.
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