In a personal injury action, how have the courts considered whether to give a voluntary manslaughter instruction?

3. Appellant argues that an instruction on voluntary manslaughter should have been given. The court specifically asked counsel if, because of the position of the defense, which was simply that the defendant did not commit the crime, instructions on manslaughter should not be given. Counsel replied, 'That is correct.' Appellant argues that the court should have given the instruction on its own motion. Appellant's argument is that there was evidence that appellant and deceased used to get into some pretty stiff arguments and that they shoved each other around. There is also evidence of appellant's being drunk on the day of the homicide. If, however, the court should have instructed on voluntary manslaughter on its own motion in the absence of any expression of counsel for the defense, we do not believe that the court should have done so when counsel had expressed himself as just stated. Counsel for defendant might well have deemed an instruction for manslaughter to be logically incompatible with the claim that he was not the person who committed the crime. (See People v. Dixon, 192 Cal.App.2d 88, 91, 13 Cal.Rptr. 277.)