(with whom Quirico, J., joins, concurring in the result but dissenting in part). I agree with the conclusion that on the basis of the instructions given to the jury by the trial judge the evidence on the question whether the defendant was guilty of “wanton” or “reckless” conduct resulting in a death was insufficient to permit the case to go to the jury. However, I disagree with the conclusion that the evidence on the question whether there was a live birth was not sufficient to permit the case to go to the jury. I also disagree with the conclusion that the defendant was entitled to a directed verdict of acquittal by reason of any prejudicial shift from the accusation as specified by the Commonwealth to the alleged crime as defined in the judge’s instructions to the jury.
1. Since it is of high importance that the terms in which the judge charged the jury be fully understood, there is set out below that portion of the charge relevant to the question whether the jury might consider the defendant’s prenatal conduct. The judge said, “Let me first discuss the word ‘person.’ I do this at the very beginning because if there had been no ‘person’ as such in this case there could not be any conviction of the crime of manslaughter. That is so because one of the essential elements of the *526crime of manslaughter, of course, is the death of a person. So we come at the very beginning to define that word ‘person.’ The Constitution of the United States does not define ‘person’ in so many words. There are several references in this regard in the Constitution for the listing of the determinations of citizens or qualifications for elections, matters of extradition proceedings, and so forth. They are found in the First and Twelfth and the Twenty-Second Amendments as well as Sections 2 and 3 of the Fourteenth Amendment, among other places. In nearly all these instances, the use of the word is such that it has applicability only postnatally. That means after birth. None of the definitions indicates with any assurance that it has any possible prenatal application____A fetus is not a person, and not the subject of an indictment for manslaughter. In order for a person to exist, he or she must be born. Unborn persons, as I said, are not the subject of the crime of manslaughter. Birth is the process which causes the emergence of a new individual from the body of its mother. Once outside the body of its mother, the child has been born within the commonly accepted meaning of that word. Killing or causing the death of a person who is born alive and is outside the body of his or her mother may be the subject of manslaughter. In order for the defendant to be found guilty in this case, you must be satisfied beyond a reasonable doubt, as I have defined that term for you, that the defendant caused the death of a person who had been alive outside the body of his or her mother. If you believe beyond a reasonable doubt that the defendant, by his conduct, caused the death of a person, once that person became such as I have defined the word for you, you may find the defendant guilty of the crime of manslaughter, if that death was caused by wanton or reckless conduct on the part of the defendant. If, on the other hand, you do not find beyond a reasonable doubt that the defendant by his conduct caused the death of a person, then you must acquit him of the crime charged. And if you find that even though death occurred, it was not due beyond a reasonable doubt to any wanton or reck*527less conduct on the part of the defendant, then likewise you must acquit.”
The foregoing portions of the charge have been set out at some length to demonstrate that given these instructions no jury under any plain understanding of the English language could conclude that the conviction of the defendant could occur unless there had been a live birth of a child outside the body of the mother and that subsequently there were wanton or reckless acts of the defendant, which acts caused the death of that child.
The judge’s instructions, not excepted to by the defendant, became the law of the case which governed the subsequent actions of the jury. Commonwealth v. Graves, 363 Mass. 863, 868 (1973). Commonwealth v. Peach, 239 Mass. 575, 581 (1921). The jury were thus left to consider and decide whether in the event of a live birth, the defendant was thereafter guilty of any “wanton” or “reckless” conduct resulting in a death. I am in agreement with the principal opinion that the evidence of the defendant’s postnatal actions was not sufficient to permit such a finding. This is not to say that the evidence of the defendant’s postnatal conduct was insufficient to permit a finding that he may have been negligent, but that was not the issue submitted to the jury. There was evidence before the jury that the gestational age of the fetus was twenty-four weeks or more, and a jury might properly have found that the extremely brief examination of the child when delivered was not consonant with the care which should have been accorded to it. A cursory examination of the anterior chest wall for a period of three to five seconds only, appears to have been the sole effort by the defendant to determine if life had been produced.
2. I am further of the belief that had the jury not been bound by the limiting instructions it would have been open to them to consider the defendant’s prenatal conduct in determining whether his over-all conduct was wanton or reckless. The jury had evidence before them which assessed the age of the fetus at twenty-four weeks and beyond. Nothing was presented to the jury to indicate that *528the defendant at any time felt the slightest concern whether his operation would produce a live birth. He made no effort to determine the condition of the fetus prior to birth. The jury also had before them the testimony of a medical witness that the defendant, after making the uterine incision, engaged, as the principal opinion states, in a “sweeping motion,” evidently the one detaching the placenta, after which he “remained motionless for three to five minutes with his hand in the uterus, his eyes fixed on a clock on the wall.” There was expert testimony that removing the placenta in the fashion which occurred in this case was similar to “cutting the air hose on a salvage diver,” and there was medical testimony that death might well follow. It is uncontroverted that the treatment accorded to this fetus was not that to be expected when a live birth was desired. In fact, all prenatal conduct of the defendant was based on the proposition that a live birth was not desired. In Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976), the court struck down a Missouri statute designed to regulate abortions in that State. The statute, House Bill No. 1211, stated in part in §6(1), “No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted.” Id. at 82. The objection of the majority of the Justices of the United States Supreme Court, speaking through Mr. Justice Blackmun, to that section was: “It does not specify that such care need be taken only after the stage of viability has been reached” (emphasis supplied). Id. at 83. Mr. Justice White, concurring in part and dissenting in part, in speaking of §6(1), stated: “Since the State has a compelling interest, sufficient to outweigh the mother’s desire to kill the fetus, when the ‘fetus’... has the capability of meaningful life outside the mother’s womb,’ Roe v. Wade,... [410 U.S. 113, 163 (1973)], the statute is constitutional.” Id. at 100. There was ample evidence before this jury that the fetus *529was viable. I see nothing in the Planned Parenthood case which inhibits the State from testing the defendant’s prenatal conduct in these circumstances in a determination whether his actions were wanton or reckless, and in my belief the jury might well have been so charged.
3. I find myself also in disagreement with the conclusion that the evidence was not sufficient to permit the jury to find that there was a live birth in this case. There was evidence which would permit either affirmative or negative conclusions on the question, and there was therefore a jury question. Much of the testimony came from specialists of distinction in the field of obstetrics and gynecology but it is undoubted that there was before the jury evidence of an autopsy of what was in all respects a normal child with a body weight which was small, to be sure, but with which other children have survived. There was evidence of respiratory activity and of a fetal age which would indicate viability. There was evidence that given medical support the baby would survive, and that the subject had a gestational age of up to twenty-six weeks, in the third trimester, which placed it in the age bracket appropriate for protection. It is not for us on the basis of the record to determine whether life might have continued. Rather we are charged with determining whether the jury could have so found, and it seems to me that there is ample evidence in the transcript from which a jury could properly have concluded that a child had achieved life.
4. It cannot be gainsaid that there was a disjunction between the pre-trial particulars filed by the Commonwealth and the crime as ultimately defined by the judge in his instructions to the jury. The particulars asserted that the victim of the alleged manslaughter died while inside the mother or when partially removed from the mother. The judge instructed the jury that in order to find the defendant guilty they must find “beyond a reasonable doubt... that the defendant caused the death of a person who had been alive outside the body of his or her mother.” The particulars asserted that the homicidal act was the defendant’s wait for three to five minutes with his hand *530inside the patient’s uterus after he had separated the placenta. The judge instructed the jury that postnatal, rather than intrauterine, conduct was necessary to support a conviction.
Justice Kaplan concludes in his opinion that in the circumstances of this case there was a prejudicial variance from the accusation as specified by the Commonwealth to the crime as defined in the judge’s instructions, and that as a result thereof the defendant was entitled to an acquittal. I am unable to agree with that conclusion.
In my view the crucial question on this issue is not whether there was a variance between the allegations and the proof but rather whether the defendant was prejudiced by any such variance. General Laws c. 277, § 35, provides that “[a] defendant shall not be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense” (emphasis supplied). I would hold that in the circumstances of this case the defendant was not prejudiced in his defense by reason of the variance, and that therefore he was not entitled to a directed verdict of acquittal. See Commonwealth v. DeVincent, 358 Mass. 592, 596-597 (1971).
On October 15, 1974, the Commonwealth apprised the defendant in writing that “[t]he Commonwealth maintains that the victim in this case was a child detached from his mother... [T]he legality of the termination of pregnancy is not an issue in this case. What is at issue is the defendant’s additional act, unnecessary to and no part of the abortion, of killing the child, detached from his mother.”1 On January 10, 1975, when the Commonwealth made its opening statement to the jury, the defendant was again apprised that the Commonwealth would present evidence of the live birth of the child who was the victim *531of the alleged homicide. This was done in language which is reproduced in the margin of this opinion.2
By reason of the nature, timing and frequency of these several statements made by the prosecutor, some contained in an affidavit and others made on the record of the proceedings in open court, the defendant knew or should have known that the Commonwealth was not proceeding against him criminally on any theory that his action in performing an effective abortion per se constituted the crime of manslaughter. Rather he knew, or should have known, from those statements that his prosecution was based on the alleged premise that, although he had undertaken and intended to perform an effective abortion, his efforts had instead resulted in an unintended, and perhaps unexpected, birth of a child, and that he had caused the death of the child by his subsequent wanton or reckless conduct. Therefore, on the basis of all of the circumstances of this case, I am unable to agree either with the conclusion that the defendant was prejudiced by the claimed variance or with the conclusion that he is or was entitled to a directed verdict of acquittal.
Viewing this matter from the vantage point of detached retrospection, it may be appropriate to suggest that it would have been preferable for the Commonwealth to have moved in writing to amend its particulars to conform to the proof, and for the judge to have allowed such a motion if it were filed. Such an amendment is permissible under G. L. c. 277, § 40, “at any... stage of the proceedings” after arraignment. Such amendments are permitted during trial, after the evidence has closed, Commonwealth v. Cor*532coran, 348 Mass. 437, 441-442 (1965), or after final argument, Commonwealth v. Lussier, 333 Mass. 83, 91-92 (1955). However, it does not follow that a defendant who has not otherwise been prejudiced by a variance is entitled to an acquittal by reason of the absence of such an amendment. I believe that the entry of an acquittal on the ground of variance would be contrary to the spirit and intent of St. 1899, c. 409, entitled “An Act to provide for the simplification of criminal pleadings,” from which our present statutes on particulars and amendments thereof, G. L. c. 277, §§35 and 40, originate.
I join with Justice Kaplan in his comment on the conduct of the trial by the judge. A reading of the transcript of evidence which is in the thousands of pages gives sufficient indication of the patient, learned and fair treatment of the parties which he brought to a trial presenting entirely new problems.
This statement appears in an affidavit filed by the Commonwealth in opposition to the defendant’s motion for an order for dismissal of the indictment under the authority of Commonwealth v. Brandano, 359 Mass. 332 (1971).
Just prior to the Commonwealth’s opening, counsel for the defendant said to the judge: “I would suggest... that there is no evidence, and that there will be no evidence that this fetus ever breathed ... and that therefore it never became a human being.” To this the prosecutor replied: “I don’t want to take my brother by surprise, there will be evidence of breathing.” During his opening statement the prosecutor told the jury: “There will be evidence that at the time that this particular male child [the victim] was detached from the mother and no longer dependent on the mother that the male child would have lived outside of the mother.”