Defendant has been convicted of the crime of manslaughter in the first degree for causing the death of Grace Burgess while in an intoxicated condition and engaged in driving an automobile in a reckless manner. In so far as is material here, the indictment charged the defendant with the crime of manslaughter in the first degree in two counts: *Page 50
1. While "engaged in committing a misdemeanor affecting the person of one Grace Burgess," the deceased, while violating subdivision 5, section 70 of the Vehicle and Traffic Law of the State (Cons. Laws, ch. 71).
2. While "in the act of committing a misdemeanor, to wit, reckless driving in violation of section 58 of the Vehicle and Traffic Law of the state."
The learned trial judge, in charging the jury under the first count of the indictment said: "I say to you, as a matter of law, that subdivision 5 of section 70 of the Vehicle and Traffic Law is, under section 1050 of the Penal Law, a misdemeanor affecting the person or property either of the person killed or of another."
The jury was instructed under the second count of the indictment that the defendant "was in the commission of a misdemeanor in that he was at that time violating section 58 of the Vehicle and Traffic Law * * * that is a misdemeanor contemplated in section 1050 of the Penal Law as affecting the person or the property of the person killed, or of another."
Counsel for defendant duly excepted to those parts of the charge. The jury found the defendant guilty of manslaughter in the first degree and being a second offender, he was sentenced to a term of twenty years' imprisonment.
It is not contended that the defendant intentionally ran down the deceased or that he saw her before the moment of contact. The question presented is whether a conviction of manslaughter in the first degree was legal under the indictment and the facts established. That is, was the misdemeanor charged and proved a misdemeanor of the class specified in subdivision 1 of section 1050 of the Penal Law, which reads: "Manslaughter in first degree. Such homicide is manslaughter in the first degree, when committed without a design to effect death: 1. By a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another." *Page 51
Was the violation of the provisions of the Vehicle and Traffic Law charged a misdemeanor "affecting the person or property, either of the person killed, or of another?" If it was not, the charge was erroneous and the conviction of the defendant of manslaughter in the first degree was illegal although he might have been convicted of manslaughter in the second degree. Subdivision 5 of section 70 of the Vehicle and Traffic Law provides that "Whoever operates a motor vehicle or motorcycle while in an intoxicated condition shall be guilty of a misdemeanor." Section 58 of the Vehicle and Traffic Law makes reckless driving, as therein defined, a misdemeanor. The jury has found that the defendant while committing the misdemeanor charged in the indictment caused the death of decedent. The acts charged were that the defendant drove his automobile in a reckless manner while intoxicated. True it is that he was engaging in an act which constituted a misdemeanor. How can it be said, however, that the unlawful act in which he was engaging was "A misdemeanor, affecting the person or property, either of the person killed, or of another?" Defendant did not intentionally hit the deceased. He did not see her until the very instant of contact. The degree of the crime cannot be fixed "by analyzing the constituent acts which, in combination, make up the transaction, and viewing them distributively. It is determined by the quality and purpose of the transaction as a whole." (Messersmith v. American Fidelity Co., 232 N.Y. 161, 166.)
A moment before the collision the defendant's conduct constituted a crime, a misdemeanor against society, against law and order and against the People of the State. The commission of the misdemeanor in which he was engaged was not one affecting the person or property of deceased or of another. He had not seen the deceased and did not know that she was present. The fact that his automobile struck her could not instantly change his conduct so as to make it an act affecting the person of *Page 52 the deceased and thereby make him liable for the crime of manslaughter in the first degree. Manifestly, the Legislature never intended that the statutes should have that effect. The words "affecting the person or property, either of the person killed, or of another," used in section 1050, subdivision 1, must be given a reasonable meaning, one in harmony with the other provisions of the Penal Law. The Vehicle and Traffic Law makes many offenses misdemeanors. If this conviction should be sustained, every driver of an automobile, who, while committing one of the offenses defined as a misdemeanor in that act, accidentally causes the death of a person will be guilty of the crime of manslaughter in the first degree no matter how thoughtless or unintentional the act. The intent to commit the minor offense would make the driver guilty of the more serious offense of manslaughter in the first degree without regard to how innocent of an intent to commit that grave offense the driver might be.
A driver who violates a provision of the Vehicle and Traffic Law which makes certain conduct a misdemeanor should be punished for such misdemeanor as provided in that act.
He may also be convicted of an assault in the third degree, if, while driving in a culpable, negligent manner, he causes another to suffer bodily injury. (Penal Law, § 244, subd. 2.)
If the conduct constituting such a misdemeanor has in addition the elements which constitute culpable negligence and he causes the death of another, then section 1052, subdivision 3, of the Penal Law is applicable and the driver may be convicted of manslaughter in the second degree.
If he causes the death of another while engaged in the commission of a misdemeanor "affecting the person or property, either of the person killed, or of another," he is guilty of manslaughter in the first degree. (Penal Law, § 1050, subd. 1.) *Page 53
To summarize, if a person drives an automobile in a reckless manner or while intoxicated, he is guilty of a misdemeanor under the Vehicle and Traffic Law. Under the same circumstances, if he injures another while driving in a culpable, negligent manner, he is guilty of assault in the third degree. If he causes the death of another while driving in a culpable, negligent manner, he is guilty of manslaughter in the second degree. A conviction may be had for manslaughter in the first degree if, at the time, the driver is engaged in committing or attempting to commit a misdemeanor affecting some particular person or property as distinguished from a misdemeanor affecting society in general.
As the conduct of the defendant did not constitute a misdemeanor affecting the person or property of Grace Burgess, deceased, or of another, he could not be legally convicted of manslaughter in the first degree because of the fact that he was at the time engaged in the commission of a misdemeanor charged in the indictment.
The conclusion which we have reached is sustained by analogy in the decisions of this court in cases where defendants were convicted of felony murder under subdivision 2 of section 1044 of the Penal Law, where death resulted from the commission of an assault. While the analogy from those decisions may not be complete, the implication is clear. In those cases it was contended that one who commits an assault in the second degree is engaged in the commission of a felony and if, while so engaged, the assault results in the death of the person assaulted, the assailant is guilty of a felony murder although the other elements constituting first degree murder are not established. This court has consistently decided to the contrary. In the case of People v. Huter (184 N.Y. 237, 244) Judge HAIGHT said: "It is apparent, therefore, that the gist of the offense is the assault and when it is by violence inflicting an injury to the person so assaulted, resulting in death, the act becomes a constituent *Page 54 part of the homicide and is merged in the charge therefor." (Cf.People v. Spohr, 206 N.Y. 516; People v. Wagner, 245 N.Y. 143. )
In the case at bar the indictment is for manslaughter in the first degree while engaged in the commission of a misdemeanor. We have reached the conclusion that the misdemeanor charged was merged in the charge of manslaughter in the first degree and, therefore, that there could not legally be a conviction of manslaughter in the first degree because of the fact that the defendant was at the time engaged in the commission of the misdemeanor charged in the indictment.
In the case of People v. Darragh (141 App. Div. 408; affd.,203 N.Y. 527, without opinion) a contrary conclusion was reached by a majority of the members of the Appellate Division. When the case reached this court, the question discussed in the opinion in the Appellate Division was not open as the record did not disclose an exception which raised that question at the trial, and this court was without jurisdiction to review the question. (People v. Huson, 187 N.Y. 97.)
Error was also committed in the selection of the jury. Jurors were called to the box. The District Attorney examined them and excused certain ones. He then stated that the twelve jurors then in the box were acceptable to the People. The attorney for the defendant then examined the twelve jurors accepted by the People and excused two. Two other jurors were drawn to take the place of the two excused by defendant's counsel. The District Attorney examined them and excused both, also a juror who had previously been examined and accepted by the People and the defendant's counsel. The defendant's counsel objected but the objection was overruled and the People were permitted to excuse the juror peremptorily. The defendant's counsel duly excepted. The ruling was in violation of the provisions of section 385 of the Code of Criminal Procedure *Page 55 and the decision of this court in the case of People v.McQuade (110 N.Y. 284).
The judgment should be reversed and a new trial ordered.