
    The People of the State of New York, Appellant, v. Rochester Railway and Light Company, Respondent.
    Fourth Department,
    January 13, 1909.
    Crime—manslaughter, second degree—corporation cannot be indicted,
    An indictment does not lie against a corporation for manslaughter in the second degree for causing the death of a human being by culpable negligence.
    The word "person” as used in section 193 of the Penal Code defining manslaughter, second degree, refers only to a human being, not to a corporation.
    Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of said county on the 17th day of June, 1908, sustaining a demurrer to an indictment against the defendant for the crime of manslaughter, second degree.
    
      Howard H. Widener and Charles B. Bechtold, for the appellant.
    Harris, Havens, Beach & Harris, for the respondent.
   Williams, J.:

The judgment should be affirmed.

An indictment will not lie against a defendant corporation for manslaughter, second degree, for the causing of the death of a human being by culpable negligence under section 193 of the Penal Code. By section 179 homicide is defined as the killing of one human being by the act, procurement or omission of another, and then by section 193 it is provided that such homicide is manslaughter in the second degree when committed (Subd. 3) by the act, procurement or culpable negligence of any person, which does not constitute the crime of murder nor manslaughter in' the first degree. "We think the word person in the latter section should not be construed as including a corporation, because a homicide can only be committed by a human being. We are asked to construe the definition of homicide as meaning the killing of one human being by another person, and thus as including a corporation. We do not so construe it, but rather that the killing must be by another human being.

Without discussing this question at length, or considering the decisions of this or other States or countries, we merely call attention to the fact that there has never yet been a conviction had against a corporation in this State for a criminal homicide, and if such an indictment and conviction is now to be sustained, under any construction of the provisions of the Penal Code, it had better be done by the Court of Appeals and not by any of the lower courts.

All concurred, except Reuse, J., not sitting.

Judgment affirmed.  