(dissenting):
The defendant was indicted for murder in the first degree. The indictment was in the common-law form, and under it, undoubtedly, the prosecution could prove facts to bring the case within any of the provisions defining murder in the first degree. (People v. Sullivan, 173 N. Y. 122 ; People v. Giblin, 115 id. 196.) He was convicted of manslaughter in the first degree, and it is claimed he was guilty of that crime because, at the time of the homicide, the defendant was engaged in committing a misdemeanor affecting the person or property of the person killed. The statute provides that homicide is manslaughter in the first degree when committed without a design to effect death 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. (Penal Law, § 1050, snbd. 1.) Here, the person killed was playing in a public street. defendant was committing a misdemeanor because he was driving an automobile at an unlawful rate of speed, but that misdemeanor did not, within the meaning of the statute as I read it, affect “ the person or property ” either of the person killed or of another. The misdemeanor here referred to has reference to some particular person or property as distinguished from people or property in general. Entertaining this view, Ido not think the facts proved made the defendant guilty of manslaughter in the first degree. The jury might well have found him guilty of manslaughter in the second degree, because the evidence showed he was not only driving the machine at an unlawful rate of speed, but that he was guilty of culpable negligence in driving it as fast as he was when the boy was struck. (See Penal Law, § 1052.)
But it is urged that the question of whether the evidence justified a verdict of manslaughter in the first • degree cannot be considered upon this appeal, because there is no exception in the record raising it. If my conclusion be correct that the evidence does not'establish that the defendant was guilty of manslaughter in the first degree, then the verdict of the jury is without evidence to sustain it, and' it does not need an exception to enable this court to .consider the question. Section 527 of the Code of Criminal Procedure expressly provides that where an appeal is taken to the Appellate Division it “may order a new trial, if it be satisfied that the verdict 'against *420the prisoner was against the wreiglit of evidence, or against' law, or that justice requires a new tidal, whether any exception shall have been taken or not in the court below.”
For these reasons I think the judgment of conviction appealed from'should be reversed and a new trial ordered.
Judgment affirmed.