Dissenting Opinion by
Hoffman, J.:The lower court found defendant guilty on five counts of involuntary manslaughter. Our court today holds that the sale of Sterno does not fall within the Pharmacy Act and, consequently, does not allow a conviction based on a violation of this Act. With this result I readily concur.
The majority, however, seeks to affirm the judgment of sentence by holding that the lower court found that defendant was guilty of criminal negligence. A careful review of the record discloses that the basis of the judge’s decision is never clearly set forth. Indeed, the remarks on the record and opinion of the lower court tend to indicate that the judge considered only the violations of the Pharmacy Act and not criminal negligence in general.
In overruling defendant’s demurrer, the lower court stated: .“It is my considered opinion that the evidence produced by the Commonwealth with respect to each of the indictments as to which the demurrer has been offered [all outstanding bills at that time] has established a strong prima facie case of violation of the Act of Assembly [Pharmacy Act] in question.”
A short time later, the trial judge set forth his reasons for finding defendant guilty. He defined involuntary manslaughter as the: “. . . unlawful killing of another without malice. Involuntary manslaughter results where there is no specific intention to take life, but from the doing of a lawful act in an unlawful manner or from the doing of an unlawful act.” The trial court then devoted five pages to discussing defendant’s actions with regard to the Pharmacy Act under the *117above definition. In his concluding remarks at the trial, the judge stated: “There are many other reasons that support my ultimate conclusions which I feel are not absolutely essential and necessary for me now to state, but for these reasons, as well as other reasons which will later appear if the necessity therefor should arise, I now adjudge the defendant guilty upon all indictments charging involuntary manslaughter, . . . .” These further reasons are not found anywhere in the record.
Lastly, the trial court filed an “Adjudication Opinion.” Such an opinion must be filed pursuant to Rule 46 of the Rules of the Superior Court which provides in part that, upon notice of appeal, “. . . the court below shall forthwith file of record at least a brief statement of the reasons for such order, judgment or decree, in the form of an opinion. . . .” In its opinion, the lower court once again defined involuntary manslaughter as previously stated. It then devoted six pages to a discussion of the applicability of the Pharmacy Act to this defendant and concluded that, “. . . it is our opinion that defendant committed an unlawful act in violation of the Pharmacy Act in selling institutional Sterno, . . . .” The court, on the last page of its opinion, cited Spruill v. Boyle-Midway, Inc., 308 F. 2d 79 (1962), a civil case, to show that defendant could have reasonably foreseen the consequences of his actions,1 and then concluded that: “In our opinion, defendant recklessly and negligently sold Sterno — not for its intended use — but for the purpose that resulted in these untimely deaths.”
At no point in the record, however, is there a suggestion that the lower court found defendant guilty of *118criminal negligence. There is no definition or discussion of this theory with reference to defendant’s acts. Nor does the opinion of the court, required by Buie 46, set forth criminal negligence as one of the reasons for finding defendant guilty. The reference to defendant’s reckless and negligent sale of Sterno appears only in the context of a discussion of the issue of foreseeability. Any inference that the lower court was also referring to criminal negligence is at best equivocal since there is only a peripheral mention of negligence appended to a comprehensive analysis of the Pharmacy Act.
In light of this record, it is our duty on appellate •review to assure that the defendant has received all of the procedural and substantive safeguards in nonjury as well as jury trials, and that the prosecution has proved it's case beyond a reasonable doubt.
The defendant in this case waived his right to trial by jury. In a trial before a judge, as distinguished from a trial before a jury, no formal instructions are given. Thus, our Court can only determine from the judge’s remarks on the record and from the required opinion whether the law has been applied correctly. In other words, the sole question before us is whether the judge, sitting as a fact finder, found defendant guilty of criminal negligence rather than ascertaining whether the record discloses facts upon which defendant could be found guilty. We must, therefore, be convinced beyond a reasonable doubt of defendant’s guilt based on the proper standard. See United States v. Maybury, 274 F. 2d 899 (2d Cir., 1960).
Had this case been tried before a jury which received instructions that failed to set out the legal standards of criminal negligence upon which the defendant could be found guilty, we would not assume that the jury actually found defendant guilty on that basis. The conviction, therefore, would, of necessity, be reversed.
*119Today, the majority affirms defendant’s conviction on the ground of criminal negligence when virtually all references in the record are to the Pharmacy Act. The opinion, as previously noted, addressed itself only to the issue of negligence parenthetically and ambiguously. Since one obvious purpose of Rule 46, which mandates an opinion, is to permit our Court appropriately to review the judge’s application of law to his findings of fact in a nonjury trial, we cannot hazard a guess that the lower court, sub silentio, based its decision on the grounds of criminal negligence. Moreover, the implication of the statement by the lower court that it could state “other reasons” to find defendant guilty, if necessary, is that it only found defendant guilty under the Pharmacy Act. Thus, we cannot impose our own judgment, in my view, if the lower court has remained silent as to the law applied to its findings of fact or where the reference to the appropriate standard is only mentioned tangentially.
Therefore, since it is impossible to determine from this record whether the lower court found defendant guilty of criminal negligence, the present verdict should not be sustained. I would reverse and grant a new trial.
Note should be taken of the fact that the judge, in discussing the Pharmacy Act itself, imported a civil standard which would be inappropriate in any event. Foreseeability is an irrelevant consideration with regard to violations of the Pharmacy Act.