(dissenting). In formulating procedural rules by which criminal law is administered in this State, the Legislature has made it mandatory that “ After hearing the appeal, the court must give judgment, without regard to technical errors or defects * * * which do not affect the substantial rights *519of the parties.” (Code Crim. Pro., § 542; and see People v. Sprague, 217 N. Y. 373, 379.) In the circumstances of record in this case, we regard as innocuous to the defendant’s rights the error which prompts a majority of the court to favor reversal of the judgment of conviction and a new trial.
The record makes it clear that the sole defense interposed by the defendant was that at the time of the homicide his insanity excused him from criminal liability — under section 1120 of the Penal Law — for the death of Elouise McHugh.
The court is divided upon the question whether the charge by the Trial Judge left with the jury a presentation of the defendant’s defense of insanity which met the requirements of section 1120 id. In view of that disagreement the quotation in full of that statute may contribute to an understanding of the point on which our views diverge:
“ § 1120. Irresponsibility op idiot or lunatic.
‘ ‘ An act done by a person who is an idiot, imbecile, lunatic or insane is not a crime. A person can not be tried, sentenced to any punishment or punished for a crime while he is in a state of idiocy, imbecility, lunacy, or insanity so as to be incapable of understanding the proceeding or making his defense.
“ A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as:
“1. Not to know the nature and quality of the act he was doing; or,
“2. Not to know that the act was wrong.” *
Our views differ upon the point made by the defendant that his rights were prejudiced when the Trial Judge — after repeatedly applying correctly section 1120 to the evidence of record —'misapplied the disjunctive “ or ” as it appears in the last sentence of that statute, quoted {supra).
Immediately following that portion of the charge relating to the statutory presumption that a person is responsible for his acts (Penal Law, § 815), the Trial Judge read to the jury verbatim section 1120 of the Penal Law. In doing so the record *520shows that the disjunctive “ or. ”, as it appears in the text quoted (supra), was read. Thereafter, following a statement of circumstances in which it becomes a defendant’s duty to go forward with evidence designed to rebut the statutory presumption of legal responsibility for the act for which he is on trial — the Trial Judge laid emphasis upon the application of section 1120 id. In doing so, as will be seen, he employed correctly four successive times the. statutory disjunctive “ or ”:
“ * * * the law, says that no person shall take the life of a human being and seek to escape responsibility for it on the plea or on the ground that he is odd or peculiar or that he has a loss of memory or amnesia, unless there is proof that tends to show that the person committing the act at the time of committing it had such a defect of reason as not to know the nature and quality of the act that he was committing or not to know that the act was wrong. One OR the other of these two things is all that can ever be the basis of excusing anybody for the commission of a crime or the committing of a criminal act.
“ In considering the question of this defendant’s alleged insanity, as defined by the law, it will not be for you to ask, ‘ Was he like other people? Was he normal or abnormal? ’ because that will not answer the question that you have to decide at all. The thing that you have to find out is whether he, at the time he committed the alleged act, [had] such a defect of reasoning as not to know the nature and quality of the act that he was doing or not to know that the act was wrong.
“ Now, those, ladies and gentlemen of the jury, are the only two things; one OR the other of those two things is all that can excuse, if it be the basis of excusing anybody for the commission of a crime or the doing of a criminal act.”
Again, in the course of his reference to testimony which related to the defendant’s defense of insanity, the Trial Judge instructed the jury as to the application of section 1120 and in doing so the disjunctive “ or ” was correctly used. “ If, after hearing and fully considering the testimony of the defendant herein and the testimony of Dr. Davidoff and the other witnesses produced by the defendant, there is reasonable doubt of whether the defendant knew the nature and quality of the act he was doing or knew that the act was wrong, then you must resolve that doubt in favor of the defendant becap.se the *521People have not proved him guilty beyond a reasonable doubt and therefore your verdict must be not guilty.”
Immediately thereafter — for the seventh time — the jury was correctly instructed as follows: “ I charge you that mere weakness of mind or impairment of mental strength or lapse or loss of memory or amnesia are not sufficient to excuse the defendant for the commission of a criminal act unless such weakness or impairment of mental condition or loss of memory or amnesia resulted in such a defect of reasoning as prevented him from knowing the nature and quality of the act he did or knowing that it was wrong.”
Then followed the portion of the charge, to which the opinion of Judge Conway refers, wherein the Trial Judge — in an attempt to rephrase section 1120 in the affirmative rather than in the negative form as it appears in the text — neglected to substitute the conjunctive “ and ” for the disjunctive “ or ”:
“ I charge you that, if, on this evidence and on all the facts and circumstances, included in it, both the. evidence of the defendant and the evidence of the People, you come to the conclusion beyond a reasonable doubt that the defendant fired the shot that killed Elouise McHugh and that he knew the nature and quality of the act or that he knew that it was wrong, then he is responsible in law for the act which he did and it is a jury’s duty to so declare.
‘ ‘ If you find that he did know the nature and quality of his act or that the act was wrong and the People have proved beyond a reasonable doubt all the essential elements of the crime, then it is your duty to determine what crime the defendant is guilty of, starting with the degrees of that crime as I have heretofore outlined them to you in my charge.”
We cannot believe that, after being instructed correctly seven times as to the proper application of section 1120, the misapplication of the disjunctive “ or ” — in the portion of the charge last quoted above — misled the jury or was such an error as adversely affected the defendant’s substantial rights. Our conclusion in that regard is confirmed when we consider the following incident which occurred when, at the close of the charge, the Trial Judge afforded counsel for the defendant the usual opportunity to suggest further instructions to the jury; *522“ Mr. Napoletano [counsel for the defendant]: The defendant requests the Court to charge the jury in order to find that the defendant knew that the act was wrong, the jury must find beyond a reasonable doubt that the defendant knew that the act was forbidden by law and also knew that according to the accepted standards of mankind, it was also condemned as an offense against good morals.
“ The Court: I so charge.”
In People v. Sherwood (271 N. Y. 427), upon which the majority opinion relies, a reversal of a judgment of conviction was based upon a number of errors of which one involved a repetitive misstatement of section 1120 as defining the mental state of a defendant which will excuse him from criminal liability. In that case, however, the error, according to the opinion per Crouch, J., was “ * * * complicated with a reference to ‘ some mental disease, ’ i.e., some pathological condition, instead of a ‘ defect of reason,’ as the statute reads.” That such complication had an important bearing upon that decision is indicated by the further statement in the opinion (p. 433) — “ No disease, no pathological condition, existed or was claimed to exist.”
Before the responsibility is assumed for reversing a judgment of conviction there must be found legal error of substance, sufficient to justify the belief that by such error the defendant was deprived of a fair trial. (People v. Dixon, 231 N. Y. 111, 121.) Finding in the record before us no error so substantial in its effect upon the defendant’s rights as to warrant a reversal of the judgment of conviction and a new trial, we dissent and vote for affirmance.
Loughran, Ch. J., Fuld and Froessel, JJ., concur with Conway, J.; Lewis, J., dissents in opinion in which Desmond and Dye, JJ., concur.
Judgment of conviction reversed, etc.
Wherever in this opinion the word “ or ” is italicized or capitalized the italics or capitals are supplied £or the purpose of emphasis.