99 N.Y.S. 330 | N.Y. App. Div. | 1906
The indictment demurred to attempts to charge the commission of the crime of manslaughter .in the second degree, as defined by. subdivision 3 of section: 193 of" the Penal Oode, and the “act, procurement or culpable negligence ” alleged was the failure of the defendants to supply and provide the deceased with “proper and necessary medicines, medical care and' attention.” -It seems plain that this is not a compliance with, subdivision 2 of section 275 of the Oode of Criminal Procedure, which requires the indictment to , contain “ a plain and concise statement of the act constituting the crime,” because it is impossible to tell from this indictment what the particular act of culpable negligence relied upon was. There is no allegation from which we can tell in what respect the defendants failed in the discharge of their duty to the deceased, and certainly there is nothing which apprises the defendants of the particular act or omission with which they are charged. Judging from the argument and the- brief of the learned district attorney, it must have been assumed that the defendants did not furnish any medicines, medical care or attendance, but this is not the allegation of the indictment, and if • in fact they undertook to furnish any, in what particular, they failed to discharge their duty is left wholly to conjecture. The standard for-determining what is proper and necessary medical care is too variable for that expression to be used as the description of a definite act. Obviously nothing more than, -the mere conclusion of the pleader is alleged, and no fact is stated from which we can ascertain what particular act or omission is relied upon as constituting the crime. In the case of People v. Buddensieck (103 N. Y. 487), relied upon by the appellant, the acts of negligence were circumstantially described. In the case of People v. Pierson (176 N. Y. 201) the indictment charged a violation of section 288 of- the Penal Code in'the omission, without lawful excuse, to furnish a/ny medical attendance.
The order of the County Court of Westchester county sustaining the demurrers to the indictment "should be affirmed.
Jenks, Gaynor and Rich, JJ., concurred; Hooker, J., dissented.
.Order of the County Court of Westchester county sustaining the demuiTers to the indictment affirmed.
