over the amount thereof to the plaintiff. Instead, however, of complying with the obligation which was implied of making the payment promptly, it delayed until, on April 15, 1903, the Sweeneys intervened. and filed the notice to which reference has been made. Upon these facts, we think the appellant's contention is sound, that in law a defendant is justified in asking that a third party be interpleaded only when at the time of the commencement of the action there are diverse claimants, each demanding of him, to the exclusion of the other, the same fund, and that it would be a hazard for him to determine which one of the claimants is entitled to the fund, and the then situation of the stakeholder and the condition are brought about without defendant's act or connivance. Upon the motion no attempt was made to show that the company, at the time when the policy was payable, or at the time when the action was commenced, had any knowledge or notice of the claim which was subsequently made by the Sweeneys. At neither time was the company in a position to bring an action of interpleader and vouch in the plaintiff and the Sweeneys as parties defendants, because at such times there was but one person, namely, the plaintiff, legally entitled to the moneys under the policy. Or, to express it differently, the company would have incurred no legal hazard or liability to the Sweeneys, had it paid the plaintiff prior to April 15, 1903; and whatever hazard there was thereafter resulted from the company's own act in withholding, without justification, payment from plaintiff. We think it would be permitting the company to profit by its own neglect and wrong to accord the relief which has been granted, and to substitute as a defendant one who, it is asserted (and nothing to the contrary appears), is an irresponsible person, unable to pay the costs of the action if the plaintiff were finally successful.

We think the order must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

(87 App. Div. 193.)

PEOPLE ex rel. ACRITELLI et al. v. GROUT, Comptroller. (Supreme Court, Appellate Division, First Department. October 23, 1903.) 1. CRIMINAL LAW-DEFENSE OF CRIMINAL-APPOINTMENT OF COUNSEL-SERVICES-COMPENSATION-PAYMENT BY COUNTY-STATUTES-CONSTITUTIONAL

LAW.

Code Cr. Proc. § 308, requires the court to appoint counsel for an indigent person accused of crime, and declares that, when services are rendered by counsel in pursuance of such assignment in a capital case, the court may allow such counsel his personal and incidental expenses, and also reasonable compensation for his services, which allowance, shall be a charge on the county in which the indictment is found, to be paid out of the court fund on the certificate of the judge presiding at the trial. Held that, since such expenditure had a direct relation to a public function, and was for the proper execution of the criminal laws of the state, it was not in violation of Const. art. 8, § 10, as an appropriation of the money of a county to the aid of an individual.

2. SAME TIME OF APPOINTMENT.

Code Cr. Proc. § 308, providing that when a prisoner is arraigned without counsel he must be asked if he desires counsel, and, if so, the 84 N.Y.S.-7

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court must assign counsel, and providing that in a capital case the court shall allow counsel so assigned reasonable compensation, payable by the county, does not limit the authority of the court to the appointment of counsel at the arraignment, but authorizes such appointment at any time before trial or at the trial.

Ingraham and Van Brunt, JJ., dissenting.

Appeal from Special Term.

Mandamus by the people, on the relation of Frank Acritelli and another, against Edward M. Grout, comptroller of the city of New York. From an order requiring defendant to pay relator the amount awarded by a justice of the Court of General Sessions to Ambrose H. Purdy for compensation as counsel appointed to defend one De Medicis, indicted for homicide, the comptroller appeals. Affirmed. Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Theodore Connoly, for appellant.

Cæsar B. F. Barra, for respondents.

HATCH, J. I am not able to concur in the view that section 308 of the Code of Criminal Procedure violates the provisions of article 8, § 10, of the state Constitution. That it does or not depends upon whether the appropriation of public moneys for the defense of an individual indicted for a capital crime is for the exclusive benefit of the individual so charged, or for a county purpose. If the former, it is unconstitutional; if the latter, it is a valid exercise of legislative power. It will not be denied but that the administration of the criminal law is a governmental function, the expense of which is charged upon the respective counties in which violations of the law are committed, and public moneys appropriated to the payment of obligations incurred in such administration are so appropriated for a public purpose. The statute under consideration authorizes the payment of money in connection with the administration of the criminal law. It therefore has direct relation to a public function, and if, in any view, it can be said to be used for a correct and proper execution of the criminal law, it not only falls within the spirit of the constitutional enactment, but is literally within its terms. So far as the general public is concerned, it is represented by the public prosecutor, and all expenses connected with the administration of his office, whether expressly authorized by statute or incidental to the performance of the duties of that office, become a public charge, and are properly payable as a county expense. This extends to all essential matters before indictment as well as after (People ex rel. Gardiner v. Supervisors, etc., 134 N. Y. 1, 31 N. E. 322), and to all necessary proceedings after conviction and before the execution of the sentence (Tompkins v. Mayor, 14 App. Div. 536, 43 N. Y. Supp. 878). Nor is it doubted but that such expenses are for a county purpose, and, when properly incurred, payable as such. We come, therefore, to consider whether money appropriated for the defense of an individual indicted for a capital crime is any less appropriated for a public purpose than for his prosecution. The answer to this must depend upon the public policy of the state in relation to such

matter as it existed at common law, as found expressed in the constitutions and statutes, the language of the courts construing the same, and the benefit to be derived from such policy to the commonwealth. The common law relating to this subject underwent a considerable change in the country of its source. The government of England in early times denied to accused persons the right to be heard by counsel in their defense. Later days brought with them. better and more humane rules, and there came a time when a defendant under indictment for a capital offense was assigned counsel. 2 Sharswood's Blackstone, 355; 1 Chitty's Crim. Law, 406. Such was the rule of the common law when it was adopted by this state and made a part of the law of the land. In the administration of the criminal law, therefore, within this state, there has been no time when a defendant indicted for a capital offense has been denied the benefit of counsel. If able to employ, he has been heard by counsel of his own choice; if unable, the judge presiding at the trial has assigned counsel to his defense, and in doing so was performing a public duty in the administration of justice, and was required by law so to do. Article 6 of the Amendments to the Constitution of the United States provides, among other things, that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, "be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." This rule of law has always existed, and was so declared in the Bill of Rights prior to its incorporation into the Constitution. It has been coexistent with colonial and constitutional government in this state, and now finds place in article 1, § 6, of the state Constitution. There has been no time in the governmental history of this state when the court lacked the power to assign counsel for the defense of indigent persons charged with crime (People ex rel. Sanders v. Supervisors of Erie County, I Sheld. 517); and it has been a part of the obligation assumed by counsel upon their admission to the bar to defend poor prisoners upon assignment by the court. Until the passage of the statute now under consideration, such service was rendered by counsel so assigned without pecuniary compensation, and such service, however onerous, created no legal liability against the county in favor of the person rendering the same. People v. Supervisors of Albany, 28 How. Prac. 22; People ex rel. Ransom v. Board of Supervisors of Niagara County, 78 N. Y. 622.

It has always been the policy of the state not to permit a plea of guilty in a capital case. The reason for this rule rests in the fact that persons desiring to shield others, or laboring under some strong emotion, or mentally unbalanced, or through other infirmities, have confessed to capital offenses of which they were not guilty, and upon such confession been executed as felons. The principle which found place in this government has been and still is that the welfare of the state is dependent upon the existence of the citizen; and in proportion as the citizen is brought to the highest state of perfection, both in intellect and morals, the state is stronger. The government, therefore, has a distinct interest in the preservation of

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the lives of its citizens and in their moral and intellectual upbuilding. It becomes, therefore, the supreme obligation of the state to see that no citizen's life is taken under any circumstances, save as he has forfeited the same to the state through some felonious act, or his continued existence imperils the stability of the government. Felonicus acts creating such a condition are carefully defined in statutes and constitutions, and furnish the only rule under which human life may be taken. It was said by Judge Vann in People. ex rel. Brown v. Board of Supervisors of Onondaga, 3 How. Prac. (N. S.) I, in a learned opinion discussing a similar question:

"The services rendered by the relator were of much value, not only to the prisoner in whose behalf they were performed, but also to the public generally, who have the same interest in the acquittal of the innocent as in the conviction of the guilty."

This language was adopted by the General Term of the Fourth Department in the same case. 4 N. Y. Cr. R. 102. While it is undoubtedly true that the citizens of this state assume the risk of defending themselves without aid from the public against even unjust law, yet such rule is subject always to the interest of the state; and where such interest requires protection the Constitution authorizes an appropriation of public funds for the purpose. It may be said that such use of the public funds operates for the benefit of the individual placed upon trial for a capital offense, but such interest is only incidental to the discharge of the obligation which the state owes to all of its citizens and inhabitants that human life and property shall be made safe, and that neither the one nor the other shall be taken away except by due process of law. The same learned judge who wrote in People ex rel. Brown v. Supervisors, supra, in speaking upon this subject, said:

"For time out of mind, in all governments where the common law prevailed, a person prosecuted for crime has been compelled to pay his own expenses when he had the means of doing so. People ex rel. Brown v. Board of Supervisors, 4 N. Y. St. Rep. 102, affirmed 102 N. Y. 691. If without means, the counsel assigned by the court served without pay, except under a recent statute a moderate allowance may be made in a capital case. Laws 1897, p. 569, c. 427; Code Cr. Proc. § 308. This exception is founded on the theory that a fair trial cannot be had without the aid of counsel, and that money paid from public funds to counsel appointed by the court for a prisoner without means is paid for a public purpose."

In re Chapman, 168 N. Y. 80, 61 N. E. 108, 56 L. R. A. 846, 85 Am. St. Rep. 661.

It being the policy of the law, therefore, not to permit a human life. to be taken except the offense which forfeits the life is established after due trial, it necessarily follows that the state is burdened with the responsibility and duty of conducting such trial, and money appropriated therefor is necessarily appropriated for a public purpose, and there can be no difference in principle between authorized expenditure of money for such purpose by the public prosecutor and the appropriation of it by the Legislature in order to secure to the defendant a fair trial. Such is the express holding of the last above cited case, and its ruling is abundantly supported by the cases cited therein illustrating what constitutes expenditure of money for a pub

lic purpose. That the courts have so regarded it is apparent from numerous decisions. People v. Heiselbetz, 30 App. Div. 190, 51 N. Y. Supp. 685; People ex rel. Czkai v. Coler, 44 App. Div. 183, 60 N. Y. Supp. 656; People v. Barone, 161 N. Y. 475, 55 N. E. 1091; People v. Ferraro, 162 N. Y. 545, 57 N. E. 167. The statute authorizing the payment of compensation to counsel assigned to defend in capital cases is in harmony with the modifications which have taken place respecting the rules which have obtained between attorneys and clients. The honorarium of ancient times has given way to practical conditions, where the attorney is not only entitled to compensation for the service he renders, but courts interpose to sustain his lien for such services, and protect him against the fraud of parties. National Ex. Co. v. Crane, 167 N. Y. 505, 60 N. E. 768, affirming 54 App. Div. 175, 66 N. Y. Supp. 361. The state has come to recognize the fact that the burdens imposed upon counsel in the defense of persons charged with capital crime are more onerous than should be borne without compensation, and, as such counsel is engaged in a public service for the benefit of the state, it is recognized in all of the cases in which the occasion arose to discuss the subject as furnishing equitable ground upon which to base an equitable claim in favor of the counsel against the state. In none of the discussions has it been doubted by the courts that such service was a public service, or but that there existed power in the Legislature to provide compensation therefore (People v. Triola, 175 N. Y. 407, 67 N. E. 968); and when it is made to appear that the obligation to see the proper defense of the person charged with a capital crime is imposed upon the state equally with his prosecution, it is readily apparent that there can be no difference in principle between the appropriation of money for his prosecution and for his defense. For these reasons, among others, it would seem to follow that the statute in question is constitutional, and should therefore be sustained.

Nor do I find myself in harmony with a construction of the statute which limits the authority of the court to assign counsel to the defense, who may receive compensation thereunder only at the time of the arraignment. The purpose of the statute is to secure the aid of counsel upon the trial. In theory the arraignment of the defendant. supposes that the trial will proceed at once. In actual practice some considerable time elapses between such event and the trial, but counsel is assigned usually at the arraignment, in order that time may be given to prepare for the trial; but the object which the statute seeks to accomplish is the benefit of counsel at the time of the trial, and if, for any reason, the assignment of counsel is not made at the time of the arraignment, I think the statute broad enough in its terms to authorize such assignment at any time before the trial, or upon the trial; and when the counsel is so assigned, and participates in the trial thereunder, he becomes entitled to the compensation for which the statute provides. It would be most inequitable, to say the least, where the state has availed itself of the benefits derived from the assignment, that it should be relieved from liability to pay therefor. There would exist in such case all of the elements upon which the doctrine of estoppel could be predicated when counsel asks for