On the afternoon of the homicide, September 3, Robert Usher and Laura Mitchell visited the apartment of Guy Lee Majors and Willie Mae Eperson. Also visiting Majors and Willie Mae Eperson was the latter’s daughter, Ella Mae Rose. They played cards for a while and everyone drank some whiskey. It is undisputed that defendant had but one drink. Subsequently, Laura Mitchell, Ella Mae Rose and defendant left the apartment. Willie Mae Eperson and Majors remained behind. It is unquestioned that Majors was intoxicated and the coroner’s report showed that there was a high level of alcohol in his blood. Ella Mae Rose swore at the defendant outside the back door of the house, and he threatened to slap her if she continued. She called to Majors for help and he came out of the house with a bat and struck defendant on the head. Defendant stated that he was knocked against the house. He caught the bat in his left hand as Majors attempted to strike him again. He reached into his pocket for a folding knife, opened it as he withdrew it, and stabbed Majors.
On trial the court charged the jury on the elements of first degree manslaughter and on the defense of justification, but properly refused to charge second degree manslaughter or criminal negligence, despite a request from the defense to do so.
Although it is well settled 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 ” (People v. Asan, 22 N Y 2d 526, 529-530; People v. Richardson, 36 A D 2d 25, 29), nevertheless, “ 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 ” (People v. Mussenden, 308 N. Y. 558, 563). First degree manslaughter is differentiated from both second degree manslaughter and criminal negligence by the requirement that there be intent to cause *463serious injury, second degree manslaughter contemplates death caused through an awareness of and a conscious disregard of the result of a course of action, and criminal negligence contemplates death through a failure to perceive the substantial and unjustifiable risk that a course of action will end in such result.
There was no evidence at the trial to indicate that defendant’s act was a reckless one and, on the contrary, it appears that he struck with an intent to cause serious physical injury. Defendant had seized the bat and effectively stopped Majors’ attack before he struck with his knife. Furthermore, it is undisputed that Majors was extremely intoxicated and defendant had only one drink.
Defendant’s claim of self-defense was apposite to a finding of intent. There is no testimony whatever that can be interpreted as showing possible lack of intent to cause serious injury. Clearly, Usher intended to wound Majors.
“ "Where due exception is taken a conviction for a lower degree not consistent with the facts proved will be reversed (Dedieu v. People, 22 N. Y. 178), even though conviction for a higher degree would he consistent with the evidence.’’ (People v. Legacy, 4 A D 2d 453, 455.) In People v. Wall (34 A D 2d 215, affd. 29 N Y 2d 863), the trial court charged down on a first degree manslaughter indictment. The jury convicted the defendant of criminal negligence. This court held that because, on no view of the facts could the defendant have been found guilty of criminally negligent homicide, the conviction must he reversed. Further, because the jury by its verdict in effect found the defendant not guilty of manslaughter in the first or second degrees, there was no basis for an indictment, and it was dismissed.
Here, there was no evidence to support second degree manslaughter or criminal negligence charges against the defendant and, therefore, the court properly declined to submit either of them to the jury.
The judgment should he affirmed.
Goldman, P. J., and Cardamone, J., concur with Del Vecchio, J.; Motjle, J., dissents and votes to affirm in .an opinion.
Judgment reversed, on the law and facts, and new trial granted.