People v. Munoz

Bastow, J.

The principal question presented upon this appeal is whether the trial court erred in charging, pursuant to section 444 of the Code of Criminal Procedure, that defendant might be convicted of the crime of manslaughter, second degree, upon a finding by the jury that the homicide had been committed by defendant without a design to effect death by her ‘ ‘ act, procurement or culpable negligence ”.

The defendant was indicted for the crime of manslaughter, first degree (Penal Law, § 1050, subd. 2) in that she caused the death of a pregnant female by administering a liquid solution of creosol and soap. There was undisputed medical testimony that such a fluid, injected into the uterus would cause immediate death. The trial court of its own volition charged the jury that it might find the defendant guilty of manslaughter, second degree, if they were convinced beyond a reasonable doubt that the death was caused by defendant’s act, procurement or culpable negligence. Timely exception was taken to this portion of the charge. The jury found the defendant guilty of the lesser crime.

Section 444 of the Code of Criminal Procedure permits the jury upon the trial of an indictment consisting of different degrees to find the defendant not guilty of the crime charged in the indictment and guilty of any degree inferior thereto. Section 445 permits a jury to find a defendant guilty of any crime “ necessarily included ” in the one charged in the indictment. “ These two sections were not enacted with any purpose to introduce a new rule of criminal law, but were both declaratory of the rule which had always obtained at common law, which was that the prosecution never was allowed to fail because all the alleged facts and circumstances were not proved, if such as were proved made out a crime though of an inferior degree. ’ ’ (People v. Miller, 143 App. Div. 251, 253, affd. 202 N. Y. 618.)

In People v. Mussenden (308 N. Y. 558, 561-562) it was said: “ It has been repeatedly written that if, upon any view of the facts, a defendant could properly be-found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense. * * * And it does not matter how strongly the evidence points to guilt of the crime charged in the indictment, or how unreasonable it would be, as a court may appraise the weight of the evidence, to acquit of that crime and convict of the less serious. * * * Consequently, although originally ‘ intended merely to prevent the prosecution from failing where some element of the crime charged was not made out ’ * * * the doctrine given expression in sections 444 and 445, redounds to the benefit of defendants as well, since its effect actually is to empower the jury ‘ to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence ’. ’ ’ The court then went on to enunciate the guiding principle (p. 563) “ that the submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding" the accused innocent of the higher crime, and yet guilty of the lower one.” (See, also, People v. Masselli, 10 A D 2d 45.)

Section 1050 of the Penal Law, so far as here material, provides that homicide is manslaughter in the first degree when committed without a design to effect death by a “ person who * * # administers to a woman, whether pregnant oí not, * * * any medicine, drug or substance, * * * with intent thereby to procure the miscarriage of a woman * * * in case the death of the woman * * * is thereby produced ’ Section 1052,- on the other hand, makes such homicide manslaughter in the second degree when committed without a design to effect death “ By any act, procurement or culpable negligence of any person ” which does not constitute homicide in a higher degree. The distinguishing feature between the two crimes thus becomes apparent. In the latter crime a finding of guilt might be made although the jury might not be convinced beyond a reasonable doubt that the substance was administered with intent to procure a miscarriage.

We, therefore, examine the evidence to discover if there was any basis therein for finding defendant innocent of the crime charged in the indictment but guilty of the lesser crime. Clearly there was. Briefly stated, there was proof that about 9:30 in the evening the deceased, accompanied 'by a friend, went to a doctor’s office where defendant was employed. The deceased entered an examining room and was alone therein with defendant for 15 minutes when the latter opened the door and called in the companion of the deceased. The latter was then on the floor with her eyes closed and mouth open. She was transported to- a hospital but was dead on arrival. A post-mortem examination revealed a large amount of creosol in the uterus fluid and an expert testified that such a corrosive material would result in immediate necrosis of the cell tissue, causing hemorrhage and ensuing shock, blood pooling in the abdomen and avoiding the heart with death resulting in from zero to ten minutes.

The defendant testified in her own behalf and denied that deceased told her that she (deceased) was pregnant or wanted an abortion. She said that on the evening in question deceased and her friend came to the office after the doctor had left; that deceased complained of not feeling well. Defendant asked her to come in the filing room — not the examining room — and to comfort her applied alcohol to the patient’s neck, forehead and back and gave her smelling salts. Suddenly deceased ‘ ‘ keeled over ” and defendant called the companion. Appellant categorically denied that she poured any creosol into a cannister or introduced any of the substance into the body of deceased or even gave her a douche. The People, however, called a detective, who testified that two days after the event appellant orally admitted to him that she administered a douche to deceased using a solution of water and creosol taken from a bottle of lysol. Defendant did not expressly admit at that time that this was done with intent to commit an abortion. Throughout her entire questioning, however, and also as a witness at the trial appellant steadfastly denied any attempt to abort the deceased.

Thus, as the case went to the jury it was entirely possible that the jury might find from the oral admissions made to the detective that defendant had administered merely a douche containing a deadly mixture but that the People had failed to prove that such act was done with intent to procure a miscarriage or to kill. Indeed, upon the expert testimony it might be difficult for any trier of the fact to make the latter finding. This is so because the corrosive material (creosol) injected into the body of the deceased was so deadly that it would not abort the patient but Would kill her within 10 minutes. If defendant’s view of the law had prevailed and only manslaughter in the first degree had been submitted, the jury might well have acquitted defendant. Therefore, the trial court quite properly submitted the lesser crime of manslaughter, second degree, for the jury to decide whether defendant’s “ act, procurement or culpable negligence ” caused the death. All of this is consistent with the verdict of the jury finding defendant guilty of manslaughter, second degree. It may not be said that there was no basis in the evidence for finding defendant innocent of manslaughter, first degree, and yet guilty of manslaughter, second degree. (Cf. People v. Heineman, 211 N. Y. 475, 480; People v. Drislane, 8 N Y 2d 67.)

Defendant’s reliance upon People v. Huntington (138 Cal. 261) is misplaced. That case was decided in 1903 and whatever validity it may have had at one time has disappeared in the light of subsequent decisions by California courts. The salient statement in the opinion (p. 264) is that “Instructions must be applicable to the facts and features of the case in hand.” The court did hold it was error to charge the crime of manslaughter where the whole theory of the prosecution was that defendant was guilty of murder in causing the death of deceased by an attempt at criminal abortion. Huntington, however, was subsequently retried upon the same information and convicted of manslaughter. In affirming the judgment the court reviewed the law relating to the charging of lesser crimes and concluded that ‘ ‘ under a charge of murder by attempting to procure an abortion, a verdict of manslaughter may be returned and will be upheld.” (People v. Huntington, 8 Cal. App. 612, 619. See, also, Huntington v. Superior Ct., 5 Cal. App. 288.) In subsequent decisions the holding in the first Huntington case has been limited and questioned by California courts. (Cf. People v. Mount, 93 Cal. App. 81, 87-88; People v. Wolcott, 137 Cal. App. 355, 363.) Finally, in People v. Long (15 Cal. 2d 590) the court again revisited the three Huntington decisions. The Supreme Court of California adopted the following language from, the decision of the District Court of Appeals (p. 602): “ Whatever may be the rule in cases where the defendant is tried solely on the theory that death resulted from an illegal abortion, and no evidence is offered of lack of due caution and circumspection, there can be no doubt that where the main theory of the prosecution is that death resulted from an illegal abortion, but some substantial evidence of want of due caution and circumspection is offered and received, an instruction on manslaughter may properly be given.” This, of course, is in accord with the rule in this State that submission of the lesser degree is justified where there is basis in the evidence for a finding of innocence of the higher degree but yet guilt of the lower one. There was no error in submitting to the jury the lesser degree of manslaughter, second degree, and the finding of guilt thereof is amply sustained by the evidence.

We find no substance to the other errors assigned by defendant. It is true that the trial court did not define the word “ culpable ” as used in section 1052 of the Penal Law. But the defendant made no request that the subject be enlarged upon or further elucidated for the benefit of the jury. “ If a charge lacks clearness in any respect, it is the duty o'f counsel to remove the doubt by a request for further instructions and if he fails to get them an exception will protect the rights of his client.” (People v. Johnson, 185 N. Y. 219, 232.) People v. Angelo (246 N. Y. 451) relied on by defendant is distinguishable. There the trial court refused to charge that slight negligence was not culpable but left it to the jury to say whether it was or was not. Here we have no gradations of slight, ordinary or culpable negligence. If under the court’s charge the jury found that defendant injected into the body of deceased a corrosive material that would cause almost instantaneous death the negligence was reckless or gross — negligence worthy of punishment. It can hardly be contended that such an act would be slight or ordinary negligence. It may be surmised that at the time defendant was content to let the matter rest without requesting further discussion of the subject by the trial court.

We agree that in a case of this kind, the trial court in the exercise of a proper discretion should have granted defendant an inspection of the autopsy findings. The failure to do so, however, was not so prejudicial as to require a new trial. On this phase of the appeal we affirm pursuant to the mandate of section 542 of the Oode of Criminal Procedure.

The judgment of conviction should be affirmed.