
    The People of the State of New York, Plaintiff, v. Carmine Di Medicis, Indicted as Carmine De Mitteo, Defendant.
    (Court of General Sessions of the Peace in and for the County of New York,
    December, 1902.)
    Crimes — Allowance to counsel assigned to defend one charged with an offense punishable' hy death — Code Grim. Ero., § 308.
    Where a defendant, charged in the indictment with an offense punishable by death, is duly arraigned therefor and then and there appears by counsel and pleads not guilty thereof, the Code of Criminal Procedure, the only authority for such an allowance, affords the criminal court, in which he was tried, no authority to make counsel, assigned him as such at a later term of the court when he did not appear, either for arraignment or trial, an allowance for having subsequently defended him.
    Application for an allowance to counsel for services in defending the accused on .the trial of an indictment charging murder in its first degree.
    Ambrose H. Purdy, for motion.
    Ho other appearance.
   Foster, J.

This is an application for an allowance to counsel for services in defending the accused on the trial of an indictment charging murder in its first degree.

The statute permitting such allowance is a recent innovation. Prior to its enactment there was no power in the court to allow compensation to counsel, assigned by the court, for the defense of those accused of crimes (People ex rel. Brown v. Board of Supervisors, 4 N. Y. Crim. 102; People ex rel. Ransom v. Supervisors, 78 N. Y. 622), and yet to the credit of the bar be it said that there is no record or even suggestion of the failure of counsel so assigned to render zealous and satisfactory services, even though without reward or hope of reward.

Chapter 427 of the Laws of 1897 (Code Crim. Pro., § 308) provides that “If the defendant appear for arraignment without counsel, he must be asked if he desire the aid of counsel, and if he does the court must assign counsel. 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 * * * the court in which the defendant is tried or the indictment is otherwise disposed of * * * may allow such counsel his personal and incidental expenses * * * and also reasonable compensation for his services in such court not exceeding the sum of five hundred dollars.” It will be observed that the statute refers specifically to the time of arraignment and gives the court the power to make an allowance for services in pursuance of such assignment only when the defendant then and there appears " without counsel"

The following section (309) of the Code of Criminal Procedure defines the “Arraignment” referred to as follows: “The arraignment * * * consists in stating the charge in the indictment to the defendant, and in asking him whether he pleads guilty or not guilty thereto. In other words, the arraignment is what is commonly referred to as the “ pleading.”

In People v. Fuller, 35 Misc. Rep. 189, referring to the statute in question, doubt was expressed as to the power of the court to allow compensation to counsel assigned after arraignment or unless assigned upon arraignment. The reasonable propriety of this rule is evident. If counsel is not satisfied with the prospects of compensation he need not appear. If he does appear it is right and proper that he should look to his client, the defendant, and not to the State for compensation.

An examination of the -record herein discloses that on June 27, 1902, the defendant was duly arraigned and, with due ap pear anee of counsel, his plea of not guilty was duly entered. No assignment was then made, because the defendant did not appear “ without counsel,” and thus the court was without jurisdiction or power to assign counsel. Probably the rule laid down in People v. Fuller, supra, explains why the appearance was interposed and the chance taken of applying for an assignment to another judge.

At another term of the court and before another judge and at a time when tlje defendant neither appeared for arraignment nor for trial it appears that counsel was assigned. It does hot appear that when application was so made for the assignment herein, the attention of the court was drawn to the facts that the defendant had been duly arraigned at a prior term of the court; or that counsel’ had duly appeared on such arraignment or that the defendant’s plea had been thereupon duly had and entered. The assignment, therefore, if not applied for with an expressio falsi was secured by a suppressio veri.

While the statute in question, being remedial", should be reasonably and liberally construed, it cannot and should not be stretched beyond the plain intendment of its language. Thus it has been held that unless the indictment is finally disposed of there is no power in the court to order compensation to counsel,-

People ex rel. Cantwell v. Coler, 61 App. Div. 598, which also distinctly holds that the court has no power by a supposedly equitable construction to broaden the scope of the statute, and the “ personal and incidental expenses ” mentioned have been so limited as not to include moneys paid for expert testimony. Cantwell v. Coler, 104 N. Y. St. Repr. 755. It follows, therefore that the assignment under which counsel claims' compensation herein is not such an assignment as the statute requires to confer upon the court the power to allow compensation, and that for the facts and reasons stated the motion herein must be denied.

Motion denied.  