(dissenting). Defendant has been convicted of the crime of manslaughter, second degree. The indictment charged manslaughter, first degree, in the language of subdivision 2 of section 1050 of the Penal Law: “ A person who provides, supplies, or administers to a woman, whether pregnant or not, or who prescribes for, or advises or procures a woman to take any medicine, drug, or substance, or who uses or employs, or causes to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman, or of any quick child of which she is pregnant, is thereby produced, is guilty of manslaughter in the first degree.”
The evidence establishes beyond a reasonable doubt the contention of the People in their opening and summation that the defendant, in order to abort Maria Soto who was pregnant for six months, injected a solution of creosol and soap into her uterus causing her immediate death. Defendant offered evidence that the decedent, accompanied by a friend, attended the office of a doctor where defendant was employed and requested aid and assistance because of a complaint by the decedent that she was dizzy and did not feel well; that defendant, in the absence of her employer, ministered to decedent by instructing her to bring her head below her knees, applying alcohol to the back of her neck and forehead and furnishing smelling salts; and that despite the aid and assistance rendered by the defendant the decedent fainted and thereafter never regained consciousness. The defense, if accepted by the jury, entitled the defendant to a verdict of acquittal.
However, upon request of the prosecution and over the objections of the defendant, the court submitted to the jury for consideration not only the crime of manslaughter, first degree, but, in addition, and as an alternative, the lesser crime of man*86slaughter, second degree. (Penal Law, § 1052, subd. 3.) This was done without any statement as to the circumstances that might warrant or permit them to consider this lesser degree of crime or any definition of the element of culpable negligence and what would be required by way of proof to establish it.
A persuasive and well-reasoned opinion in a sister State is in point. (People v. Huntington, 138 Cal. 261, 263-265.) “ The only position taken by the prosecution was, that appellant had caused death while committing a felony, — to wit, producing an abortion, — and was therefore guilty of murder; there was no pretense that he was guilty of any crime less than murder. But after the evidence had been closed and the case had been argued to the jury upon the theory of murder by abortion, as above stated, the court, at the last moment, of its own motion, instructed the jury that appellant might be convicted of manslaughter upon a totally different theory, — to wit, that death did not result from an attempt to produce abortion, or to commit any other crime or unlawful act whatever, but that it resulted while he was doing a perfectly lawful act,— that is, treating the deceased medically for a disease, — upon the ground that said lawful act was done ‘ without due caution or circumspection. ’ Of course, the general proposition is true that there may be a conviction of manslaughter under an indictment for murder; but that proposition does not justify any kind of a charge which a court may give upon that subject, regardless of the character and theory of the prosecution in a criminal case; instructions must be applicable to the facts and features of the case in hand. Under the circumstances of the case at bar there should have been no instruction on the subject of manslaughter; the only question legitimately before the jury was whether appellant had caused death while attempting to produce abortion. If that was the fact, he was guilty of a murder; and there was no element of manslaughter present. But the jury, under the instruction, found him guilty of manslaughter; and he was therefore tried for one crime and convicted of an entirely different crime. Moreover, when the court, of its own motion, interjected into the case the notion that the defendant could be convicted of a crime for which nobody supposed he was being tried, it certainly should have stated the law as to this new view of the case. To convict a physician of a felony for alleged want of proper treatment of a patient who dies is a most serious thing; and convictions of that character are exceedingly rare in judicial history. If we assume that the court had any warrant to touch the subject at all, it certainly should have told the jury *87that in such cases the law exacts only ordinary and reasonable care and skill on the part of the physician, And the error in not stating the law, upon a subject to which no reference had been made by counsel on either side, and about which clearly no one connected with the case expected any instruction, is not condoned by the fact that counsel for appellant, in the confusion which the unexpected instruction evidently produced, did not ask for further instruction on an issue which they did not consider to be in the case.”
We disagree with the analysis of the California cases discussed in the majority opinion. The rationale of People v, Huntington (supra) is unimpaired by the Subsequent decisions of the California courts cited by the majority. They are to be read in the light of the legal effect tinder California law of the prior adjudication. On the retrial of an indictment resulting in a conviction for a lesser degree of the crime charged, the California courts hold that the prior verdict and judgment preclude a prosecution for the offense as Originally charged and limits the retrial to the lesser degree of the offense. The law of Few York is otherwise. “ The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew; and the former verdict cannot be used or referred to, either in evidence or in argument.” (Code Crim. Pro., § 464.)
In no aspect of the ease is the verdict of guilt in respect of manslaughter, second degree, supported by this record. The undisputed evidence is that decedent’s death was caused by the injection into her uterus of a Solution of creosol and soap for the purpose of aborting her; the defendant denied responsibility therefor.
The instruction on the lesser degree of the offense charged introduced an entirely new issue, unsupported by any proof and to which the defendant and the respondent had not addressed themselves in the proof or on summation. The evidence of the prosecution, if credited by the jury, warranted a verdict of guilt as to the crime charged in the indictment; it does not support a finding of the absence of the intention on the part of the defendant to procure the miscarriage- of the decedent.
Fo possible view of the facts justifies any other verdict except a conviction of the crime as charged or an acquittal. (People v. Schlemian, 197 N. Y. 383; People v. Moran, 246 N. Y. 100, 105; People v, Mussenden, 308 N. Y. 558, 563; People v. Masselli, 10 A D 2d 45.) It was error, therefore, over defendant’s objection, to submit to the jury for its consideration the charge of man*88slaughter, second degree, and thereby enable the jury to pass on a charge not made in the indictment and without evidence to support it.
In any event, we think it was incumbent on the trial court when it assumed to charge manslaughter, second degree, over objection by defendant, to define the crime and explain culpable negligence. “ ‘ Culpable ’ negligence is therefore something more than the slight negligence necessary to support a civil action for damages. It means, disregard of the consequences which may ensue from the act, and indifference to the rights of others.” (People v. Angelo, 246 N. Y. 451, 457.)
It is suggested that the court’s failure to define culpable negligence is without substance because the finding of gross or reckless negligence is implicit in the jury’s finding that the defendant injected into the body of the decedent a corrosive material. Nevertheless, it was for the jury to pass on the culpable negligence of the defendant no matter what the circumstances. In order to do so, the court should have supplied the jury with the standard by which culpable negligence is to be determined. This the court failed to do.
We are of the opinion, in the circumstances of this case, particularly because the court assumed to charge the lesser degree of manslaughter over defendant’s objection, that, despite the absence of a request therefor, it was necessary and incumbent on the court to define culpable negligence. (See People v. Drislane, 8 N Y 2d 67 [decided May 26, I960].)
Moreover, it was an unwise exercise of discretion by the learned Trial Judge to deny defendant an inspection of the autopsy findings resulting from the death of the decedent herein and received in evidence. The report of the findings of the Medical Examiner was material and admissible. (People v. Nisonoff, 293 N. Y. 597.)
Section 879 of the New York City Charter provides: “ It shall be the duty of the chief medical examiner to keep full and complete records in such form as may be provided by law. The chief medical examiner shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality, and such records shall not be open to public inspection. ”
The interdiction of public inspection of death records involving criminality does not affect the right of this defendant, whose interest therein is personal and immediate and patently apart from and other than that of the public, to an inspection of the official findings of the Medical Examiner pertaining to the death *89resulting from the criminal act charged against her. In the absence of a showing of prejudice to the People, the defendant should have been afforded the opportunity to inspect the findings of the Medical Examiner. (See People v. Preston, 13 Misc 2d 802, 815-817, writ of prohibition denied sub nom. Matter of Silver v. Sobel, 7 A D 2d 728.)
The judgment should be reversed and a new trial directed.
Breitel, J. P., and Stevens, J., concur with Bastow, J.; McNally, J., dissents and votes to reverse and grant a new trial, in opinion, in which Valente, J., concurs.
Judgment of conviction affirmed.