People v. Malinowski ( 1927 )

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.