I vote for affirmance. Defendant's conviction of the crime of manslaughter in the first degree for the death of Grace Burgess is based wholly on the second count of the indictment. It charges that he killed her while he was violating a municipal ordinance which had established traffic signal lights and that in violation of this ordinance he operated his automobile onto and across a safety zone which she was then crossing. The same count charges that the homicide occurred while defendant was also in the act of committing the misdemeanor of reckless driving in violation of section 58 of the Vehicle and Traffic Law.
The evidence proves that, while he was intoxicated, defendant drove past the red light through the safety zone, struck Mrs. Briant, struck and killed Mrs. Burgess, and, within two or three seconds thereafter, collided with another car, the property of a third person. His conduct was in contravention of the ordinance and it constitutes the misdemeanor defined by section 58 of the Vehicle and Traffic Law. By the manner in which he drove his car he unreasonably interfered with the free and proper use of the public highway and he unreasonably endangered users of the public highway (People v. Grogan, 260 N.Y. 138, 149), including the three individuals specifically concerned with his conduct.
If defendant was engaged at the time of the homicide in committing a misdemeanor "affecting the person or property, either of the person killed, or of another" (Penal Law, § 1050, subd. 1), he is guilty of manslaughter in the first degree. The fact that defendant did not intentionally run down the deceased does not appear to have any relevancy to the case. The gravamen of the misdemeanor *Page 56 is failure to exercise the care of the reasonably prudent man. (People v. Grogan, supra.) If he failed to see his victim when he should have seen her, he has committed this misdemeanor. The question is, therefore, whether the commission of this misdemeanor was such a one as "affected" the person or property either of Mrs. Burgess or of another. In ascertaining the correct answer to this question, courts are admonished that our Penal Law is not to be strictly construed but that it must be construed according to the fair import of its terms to promote justice and effect the objects of the law. (Penal Law, § 21.) We are warned against indulging in elaborate subtleties and are obliged to interpret language according to its ordinarily accepted meaning. Reasoning should not be unduly refined; words must not be tortured. To "affect" is defined by Webster as meaning "to produce an effect on," and, as judicially defined, it signifies "to act upon, to produce an effect or change upon" (Canniff v.Mayor, 4 E.D. Smith, 430, 439); "acting injuriously upon persons and things" (Ryan v. Carter, 93 U.S. 78, 84); "concern" (United States v. Ortga, 11 Wheat. 467, 468). Not only did defendant's commission of the misdemeanor as defined by section 58 of the Vehicle and Traffic Law offend society in general but it affected the person of Mrs. Burgess and simultaneously affected the person of Mrs. Briant and almost instantaneously affected the property of the owner of the car with which defendant collided. Of course the commission of a misdemeanor which is in no way related to the killing cannot in reason be deemed such a misdemeanor as section 1050 contemplates. For illustration, one who is using boisterous and profane language in public against a particular individual and thereby is tending to cause a breach of the peace, but who, at the same time is driving carefully and conforming in every respect with the laws relating to traffic, unfortunately collides with and kills another person *Page 57 negligently proceeding directly into his path, would be engaged in the commission of a misdemeanor but it would not be such a misdemeanor as affects persons or property in the sense intended by the statute. Defendant's act of misdemeanor was the direct cause of the killing. If he had not recklessly driven past the signal into the safety zone while his victims were rightfully there, the homicide would not have occurred. That the misdemeanor to which section 1050 refers need not be separate from the act of killing seems to be the more reasonable view. (People v.Stacy, 119 App. Div. 743, 748; People v. Darragh, 141 App. Div. 408,418.)
Without showing in what manner, if any, his substantial right was violated on the trial, defendant raises a second point, relying upon sections 385 and 386 of the Code of Criminal Procedure and People v. McQuade (110 N.Y. 284), that reversible error was committed in allowing the People peremptorily to challenge a juror and in excusing that juror after he had been accepted but before he had been sworn. The record in the McQuade case, decided in the year 1888, differs from the record before us. The opinion in that case makes no reference to the provisions of section 371 of the Code of Criminal Procedure. The facts apparently did not warrant their application. Here they seem to control. Section 371 provides: "A challenge must be taken when the juror appears, and before he is sworn; but the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action." In People v. Hughes (137 N.Y. 29, 36) this court, without mentioning the decision in the McQuade case, thus defined this section: "The obvious meaning of section 371 is that a challenge for `good cause,' which is required to be taken before the juror is sworn, may nevertheless be taken thereafter — and before evidence is given, in the discretion of the court." After a juror had been sworn in the Hughes case, the District Attorney stated *Page 58 that he desired to interpose a peremptory challenge, the reason being that matters had come to his knowledge since the juror was sworn leading him to believe that the juror was not satisfactory. We held on that record that the trial court did not abuse discretion when it permitted a peremptory challenge upon the assurance of the public officer empowered by the law to represent the People in the prosecution of criminals. In the case at bar, the record shows that, during the examination of jurors, a short recess was taken and that, after the court reconvened, a juror previously accepted but not sworn was peremptorily challenged by the People. What occurred between court and counsel during the recess is not disclosed by the record. There was no request by defendant to cause a record to be made and we cannot assume that the court arbitrarily set aside the juror without good cause. Defendant's counsel contented himself with an objection to the juror being excused and an exception based solely on the ground that the juror had previously been accepted by the People. The objection was not directed to any alleged abuse of discretion but rested upon the assertion of a lack of power to excuse. The court certainly was empowered to excuse in the exercise of discretion (People v. Hughes, supra; People v. Elliot, 66 App. Div. 179; affd., 172 N.Y. 146) and no facts appear tending to show an abuse.
POUND, Ch. J., CRANE, LEHMAN, CROUCH and LOUGHRAN, JJ., concur with HUBBS, J.; O'BRIEN, J., dissents in opinion.
Judgment reversed, etc. *Page 59