
    The People of the State of New York, Respondent, v. Dominico Calabur, Appellant.
    
      Refusal of a prisoner’s counsel, whose motion for an adjournment had been denied, to take any part in the trial—judgment of conviction reversed on appeal, where no exceptions presented legal en’or, because justice required a new trial.
    
    July 9, 1903, an Italian, aged about twenty years, was arraigned under an indictment charging him with the crime of assault in the first degree and interposed a plea of not guilty.. At the time of the arraignment, the defendant and his counsel were told hy the court that the case would be moved for trial on July 14, 1903. When the case was reached on the day mentioned, the defendant’s counsel asked for an adjournment urging that he had not been served with the customary notice that the case would be moved for trial; that he was not ready to go on with the trial as he had not had sufficient time to prepare - and that he had been prevented from working on the case by reason of the excessive heat and that the defendant had no witnesses in court to enable him to proceed with his defense. The court denied the motion and the defendant took an exception. The trial proceeded, the defendant’s attorney refusing to cross-examine the People’s witnesses, to sum up the case to the jury, or to take any part in the trial.
    After the district attorney had put in his evidence and had summed up the case, the court charged the jury and that body found a verdict of guilty.
    
      Held, on an appeal from the judgment of conviction, that while there was no exception in the case presenting legal error, the circumstances surrounding the trial justified the Appellate Division in granting a new trial under the provisions of section 527 of the Code of Criminal Procedure, which permits that court to order a new trial “if it be satisfied * * * that justice requires a new trial, whether any exception shall have been taken or not in the court below; ”
    That the constitutional right of trial had practically been denied to the defendant, who appeared to have been unable to understand the proceedings.
    Appeal by the defendant, Dominico Calabur, from a judgment of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 20th day of July, 1903, upon the verdict of a jury. convicting the defendant- of the crime of assault in the first degree.
    
      Francis L. Corrao, for the appellant.
    
      Robert H. Roy, for the respondent.
   Woodward, J. :

The defendant, Dominico Calabur, an Italian, aged about twenty years, stands convicted of the crime of assault in the first degree, and has been sentenced to State prison for a term of nine years. It appears from the record that Oalabur was arrested on the evening of May 15, 1903, at the corner of Sackett and Beach streets in the borough of Brooklyn, charged with assaulting one Felice Amodei on Union- street. At the time of his arrest Calabur was attempting to run away from the scene of the crime. He was taken before a magistrate and pleaded not guilty to the charge, but upon examination was held to await the action of the grand jury, and that body on the 8th day of July, 1903, found an indictment against him for assault in the first degree. On the following day the defendant was arraigned on this indictment and a plea of not guilty was entered. At this time the defendant and his counsel were told by the court that the case would come on for trial on the following Tuesday, five days hence, with a Sunday intervening. 1 On the day mentioned, July fourteenth, the case was reached, and defendant’s counsel asked for a continuance of the case, urging that he had not been served with the customary notice on the part of the district attorney, that the case would be moved ; that he was not ready to go on with the trial as he had not had sufficient time to prepare; that he had been prevented from working on the case by reason of the excessive heat, and that the defendant had no witnesses in court to enable him to go on with the defense. The learned court refused any adjournment and stated that' “at the time this man was arraigned the counsel for the defendant was present in court, and ■the Court informed the attorney for the defendant that we would try the case to-day.” The defendant’s objections were overruled, defendant took an exception, and the trial proceeded, defendant’s counsel refusing to cross-examine the witnesses produced by the People, to sum up the case to the jury, or to- take any part in the trial, except to reiterate his objections to the case being tried under the circumstances. The People put in their 'evidence without any effort on the part of the. court or defendant’s attorney to make any inquiry into the.merits of the case, aside from the direct examination of the witnesses for the prosecution,, and after the People had summed up the case the court charged the jury and that body found a verdict of guilty as charged in the indictment. Defendant appeals from this conviction.

We think there is no exception in this case presenting legal error, and yet we feel that the circumstances surrounding this trial justify granting a new trial under the provisions of section 527 of the Code of Criminal Procedure which permits this court to ordér a new trial “ if it be satisfied that the verdict against the prisoner was against "the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.” In the customary and ordinary administration of the law, as well as by constitutional guaranty, “ in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel ” (State Const, art. 1, § 6), and this right has practically been denied to the defendant, who appears to have been unable to understand the proceeding, while the court permitted his counsel to withdraw from the case to all intents and purposes, leaving him without those safeguards which belong of right to every man. whose liberties are involved. It is true, of course, that the defendant was present at the trial, but he might as well have been back in Italy, so far as any defense on his part was concerned, if he could not understand wrhat was taking place about him, or if he was given no opportunity to assert his rights. The fact that his counsel was present, if he refused to take part in the trial, did not meet the requirements of what we know in this country as a fair trial. As was said by Mr. Justice Hatch in the case of People v. Watkins (23 App. Div. 253, 257) : “ The court should protect against the mistake of the counsel for the party as well as against the affirmative action of his adversary, if injustice be the result.” The fact that the defendant’s counsel may have neglected his duty, or that the court failed to provide the accused with counsel, ought not to stand in the way of giving this boy a fair and impartial trial of the charges against him.

The defendant is a stranger in a strange land; he is entitled to a fair and impartial trial of this indictment, with the aid and assistance of competent counsel, and we feel that this is a case in which the discretion vested in this court should be exercised thattliis result may be accomplished.

The judgment of conviction should be reversed and a new trial granted.

All concurred.

Judgment of conviction reversed and new trial ordered.  