
    The People of the State of New York, Respondent, v. Harvey D. Montgomery, Appellant.
    
      Allowance to counsel for indigent persons accused of a crime punishable with death — itmay be made for each of several trials.
    
    A person accused of -the crime -of ^murder in -the' first degree was tried at a Trial Term of the Supreme Court and was convicted. The judgment-of conyictiqn was reversed by the Court of Appeals,'and a second trial'was-had at a Trial Term of the Supreme Court held-in a different county from the one in-which the first trial took place, and presided over by a different justice.
    
      Held, that under section 308 of the Code of Criminal Procedure, relative to the compensation of an attorney assigned to defend a person accused of a crime punishable by death, the justice presiding at the second trial had power to . allow the accused's counsel reasonable compensation, not exceeding the $500 specifiéd in that section, for the services rendered by him upon the second trial, notwithstanding that the accused's .counsel had previously received, pursuant to the provisions of the said section of the Code of Criminal Procedure^ $500 for the services rendered by him upon the first trial and $500 for the services Tendered by him upon the appeal to the Court of Appeals; ■
    That the; limitation of $500 contained’in the Section cited was intended- to apply' only to a single trial or to a single appeal, and that successive .allowances m'a-y be granted upon successive trials by the'court at different terms; '■
    That the expression contained in the section, “the court in which the defendant is tried,” means the specific term at which the defendant was tried, and that a ■ prior trial at another term of the same court is a trial by another court within the fair construction of the section. x . . ,
    
      Appeal by the defendant, Harvey D. Montgomery, from so much of an order of the Supreme Court, made at the Otsego Trial Term and entered in the office óf the cleric of the county of Otsego on the 7th day of May, 1904, as provides “ that no sum or amount whatever be paid to, the said (defendant’s) counsel- for the services rendered by them on the said second trial on. the ground that there is no authority therefor.”
    The defendant was tried for the crime of murder in the first" degree at a Trial Term of the Supreme Court held in the county of Delaware, over which Mr. Justice Sewell presided. That conviction was reversed by the Court of Appeals (176 N. Y. 219), and a second trial was had in the county of Otsego at a Trial Term of the Supreme Court at which Mr. Justice Miller presided. At the close of the first trial the defendant’s counsel received, upon the certificate of Mr. Justice Sewell, the' sum of $500. besides their disbursements, pursuant to section 308 of the Code of Criminal Procedure. • After the determination of the appeal by the Court of Appeals the defendant’s counsel received, upon the certificate of that court, a further sum .of $500. At the close of this second-trial, upon the application .of the defendant’s attorneys for a further allowance of $500, the learned justice has denied the application therefor upon the ground of want of power, the order reciting that the services rendered by the defendant’s counsel upon said second trial were reasonably worth the sum of. $500.
    
      C. R. O’Oonnor, for the appellant,
    
      George A. Fisher, for the respondent.
   Smith, J.:

.The' determination of this appeal rests upon the construction of section 308 of the Code of Criminal Procedure. This section requires the court to assign counsel for the defense of an indigent criminal who desires the aid of counsel, and it further provides:

“ When services are rendered' by counsel in' pursuance of such assignment in a case where the offense charged in the indictment is punishable by death or on an appeal from a judgment of death, ’ the court in which the defendant is tried or the action or indictment is otherwise disposed of, or by which the appeal is finally deter- . mined, may allow such counsel liis. personal and incidental expenses, * * "" and also reasonable compensation for his services in such court, not exceeding the sum of five hundred dollars, which allowance shall be a charge upon the county in which the indictment in the action is found, to be paid out of the court fund, upon the certificate of the judge or justice presiding at. the trial or otherwise disposing of the indictment, or upon the certificate of the appellate court. * * *” The court presided over by Mr. Justice Miller, at which this application was made, was' the court in which the defendant was tried upon an indictment upon which a conviction would require the infliction of the penalty of death. Authority to. that court to grant this allowance would come within the very, letter of "the statute unless such allowance.be prohibitedxby the fact that another court presided over by a different justice in another county had granted an allowance of $500 upon a former trial. To this statement of the proposition .respondent objects that the former allowance Was by the same court, to wit, the Supreme Court, and not by another court. This objection raises the pivotal question here for decision as to the intention of the Legislature in using the expression in the statute the court in which the defendant is tried.” I am unable to escape the .conviction that the Legislature meant to refer to the court at the specific term at which the defendant' Was tried, and that a. prior trial'at another term is, within the fair construction of the statute, a trial by another court. Ordinarily all trials for murder in the first degree must be held in the Supreme Court. In the city of New York, however, the criminal" court has jurisdiction of 'such trials. It is not uncommon" in the city' of New York, where more than o.ne trial is had upon a charge of the crime of murder in the first degree, that one trial is had in ■ the criminal court and another in the Supreme Court'. In such a case I see no reason why either court has not full authority to grant .the allowance of $500, and nó objection could be . raised thereto by reason of the fact that the other, court had tliéretofore granted a similar allowance. It does not seem to me probable that different rights were intended to be given in the city of New York and outside of that city, where the "successive trials must he liad in the Supreme Court. Prior to 1893 an attorney was required ■ to defend an indigent criminal without compensation, if assigned to that duty by the court. (Code Crim. Proc. [Laws of 1881, chap. 442] § 308; People ex. rel. Brown v. Board of Supervisors of Onondaga, 3 How. Pr. [N. S.] 1, 6; affd., 102 N. Y. 691.) In 1SÍ93 a statute, amending section 308 of the Code of Criminal Procedure, was passed which authorized the court in which the defendant was tried to allow reasonable compensation to an attorney so assigned to defend a criminal charged with a crime the punishment for which was death. (Laws of 1893, chap. .521.) I assume that under that statute successive allowances might have been made after succesive trials so long only as the allowance did not exceed si reasonable compensation. In 1897 the statute was passed as above quoted, and, with some other minor changes, the $500 limitation was inserted. In my judgment that limitation was intended to apply only to a single trial or a single appeal, and successive allowances may be granted upon successive trials by the court at different terms, each allowance within the limitation prescribed by the statute. Under this section it has been held in People v. Ferraro (162 N. Y. 545) that the section applies to the trial court and appellate court separately, so that the granting of an allowance of $500 by the trial court would not prevent the granting of another allowance of $500 by the appellate court. In that case the court says: We have repeatedly held that'said section, when construed in the light of the several progressive changes made by the Legislature, means that the limitation imposed by the words not exceeding the sum of five hundred dollars ’ applies to the trial court and to the appellate court separately, and not collectively.”

I see no more reason, however, for construing the statute to authorize a separate allowance of $500 for the trial and for an appeal than for construing the statute to allow an allowance by each trial court before which the defendant is tried for -his life. The contention that the Supreme Court is the court in which both trials were had, and thus within the wording of the statute the court in which the defendant is tried,” is, in my judgment, too narrow in view of the recognized policy of the Legislature to grant reasonable compensation to attorneys who are required to defend indigent criminals.

I advise, therefore, the reversal of the order, with leave to defendant’s counsel to apply to Mr. Justice Miller for .a ceí?tiñcáte within section-308 of the Code of Criminal. Procedure.

All concurred.

Order reversed, without-costs, with leave to defendant’s counsel to apply for certificate under section 308 of the Code of Criminal Procedure. ■ " .  