The prisoner who was convicted at a court of oyer and terminer held in and for the county of Ulster, on the 4th day of December, 1884, of the crime of murder in the first degree, and who has appealed from such conviction to' the general term of this court, asks, as he is ' entirely without means, that a copy of the stenographer’s *197minutes be filed at the expense of the county, so that his counsel may prepare the bill of exceptions to present his case for review.
The ground of the motion is that the prisoner is entirely unable to furnish the money to defray the cost of transcribing the stenographer’s notes, and therefore, as the counsel assigned for his defense deposes that a proper discharge of the duties devolved upon him. by the court requires a presentation of the case to the appellate tribunal, the court should provide the means necessary to enable him to do that which the court has enjoined.
• Upon the arraignment of a prisoner without counsel, the law {Code of Criminal Procedure, sec. 308) requires that “ he must be asked if he desires the aid of counsel, and if he does the court must assign counsel.” This embodies in the form of a statute what has always been the practice of the courts ; and the duty of assigning counsel carries with it the power, and the further duty, to do whatever is necessary and proper to be done to enable the assigned counsel to discharge the trust which the court has devolved upon him. In pursuance thereof it has been the custom of courts to furnish means out of its contingent funds to procure witnesses necessary for the defense of persons accused of crime, and for other purposes connected therewith. Ho reason is seen why the principle of furnishing to counsel assigned to defend a prisoner the means he requires properly to discharge the work to which he has been assigned is not applicable to the present motion. The proper defense of a prisoner may often require a review of a trial upon which he has been convicted, and the prosecution of an appeal from a judgment of conviction may frequently be a duty devolving upon counsel as imperative in its character as the conduct of the trial. In this case the counsel who conducted the defense of the prisoner, not voluntarily, but by the command of the court, and of whose standing and character such command is evidence, states on oath that in his judgment the discharge of his duty requires *198a review of the conviction by appeal, and. that the prisoner is entirely without money or means to procure a copy of the stenographer’s notes of the trial. A denial of this motion would therefore be a denial in fact of his right to make the proper defense. Such a result is incompatible with an enlightened administration of justice, and of the policy of recent legislation in regard to capital cases. Formerly on conviction of a capital offense the death penalty, pending a review of the conviction, could be arrested only by the allowance of a writ of error, in the allowance of which the justice of the supreme court should give “ an express direction therein that the same is to operate as a stay of proceedings on the judgment upon which such writ shall be brought ” (2 Edmund's Stat., 765, sec. 16). How, however, it is expressly provided (Code of Criminal Procedure, sec. 527) that by the service of the notice of appeal to the supreme court from a judgment of conviction, “ when the judgment is of death, the appeal stays the execution, of course, until the determination of the appeal.” This provision is a clear indication of legislative intent. It was designed to give a prisoner convicted of murder the absolute right of review, and a stay pending the appeal. To make the enactment effectual in this ease, this motion should be granted, for without the obtainment of the relief asked thereby the right of appeal and the stay are useless. The order will be that the clerk of the county procure at the expense of the county a copy of the stenographer’s notes of the trial, which shall be filed in his office for the use of both the counsel of the prisoner and the district attorney in the preparation and settlement of the.bill of exceptions.
It is proper to state in conclusion that judge Pbokham, before whom the conviction was had, concurs with me in the propriety of the order hereby directed.