Opinion
March 7, 1945.
Present — Taylor, P.J., Dowling, Harris, McCurn and Love, JJ.
Judgment of conviction affirmed. All concur, except Dowling and McCurn, JJ., who dissent and vote for reversal on the law and facts and for granting a new trial on the following grounds: (1) The evidence does not warrant a conviction for manslaughter, first degree, there being no evidence of heat of passion as required by subdivision 2 of section 1050 of the Penal Law. ( People v. Heineman, 211 N.Y. 475.) (2) The court, under the peculiar facts, erred in not submitting to the jury manslaughter, second degree. (The judgment convicts defendant of the crime of manslaughter, first degree.)