
    The People of the State of New York, Respondent, v. Katherine Malinowski, Appellant.
    (Argued May 4, 1927;
    decided May 17, 1927.)
    Crimes —■ manslaughter — criminal operation — failure of proof necessary to sustain conviction of defendant.
    Where an indictment charging defendant with manslaughter through performance of a criminal operation upon a woman and the testimony for the People both indicate the existence, at the time of the alleged operation, of peritonitis and a septic condition of the peritoneum and there is no testimony from which the conclusion may be reached that such condition was not caused by an already existing perforation of thd uterus, there is a failure of proof necessary to sustain a conviction of defendant upon the theory that the uterus was perforated by the defendant at the time of the operation, resulting in the septic peritonitis which caused death.
    
      People v. Malinowski, 219 App. Div. 765, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 12, 1927, which affirmed a judgment rendered at a Trial Term for the county of Erie upon a verdict convicting the defendant of the crime of manslaughter in the second degree.
    
      George L. Grobe for appellant.
    It was reversible error for the trial court to remove from the consideration of the jury the question whether or not any instrument or thing other than the curette had been inserted into the private parts of the woman or whether or not the curette caused the puncture. (Broderick v. Brooklyn, Q. C. & S. R. R. Co., 186 App. Div. 546.) The verdict of manslaughter in the second degree was without any evidence to support it "and was unwarranted. (People v. Hoffman, 220 N. Y. Supp. 249.)
    
      Guy B. Moore, District Attorney (John J. Kane of counsel), for respondent.
    All questions of fact and every scintilla of evidence in the case were left to the consideration of the jury by the trial court. (People v. Maggiore, 189 N. Y. 514; People v. Thompson, 198 N. Y. 396.) The verdict of manslaughter in the second degree was a proper one. (People v. Heineman, 211 N. Y. 475; People v. Van Norman, 231 N. Y. 454; People v. Darragh, 141 App. Div. 408; Fitzgerald v. People, 37 N. Y. 413; People v. Young, 96 App. Div. 33.)
   Per Curiam.

Mrs. Szeluga died on November 6, 1925, of septic peritonitis resulting from a perforation of the uterus by some mechanical means. How long the perforation had preceded the disease which it caused was uncertain. On October 26 the uterus had been penetrated by a curet in the hands of the defendant. Under the conditions existing this might have caused the damage, and if such act caused oí hastened the death of Mrs. Szeluga the defendant was properly convicted of the crime of manslaughter. It may have done so. The difficulty is that the indictment alleges that prior to this last date Mrs. Szeluga was already suffering from pain in her abdomen and uterus, infected uterus and septicemia.” The testimony of the People-also indicates the existence at that time of peritonitis and a septic condition of the peritoneum. If the septic peritonitis present on November 6 was caused by the perforation there is no testimony before us from which the conclusion may be reached that the sepsis and the peritonitis present on October 26 were not also so caused. If they were then the uterus was not perforated by the defendant on that day. There is consequently a failure of the proof necessary to sustain the conviction of the defendant.

The judgment of the-Appellate Division and that of the Trial Term should be reversed and a new trial ordered.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment reversed, etc.  