(dissenting). On January 4, 1949, Mrs. Janet J. Fay was killed in the town of Hempstead, Long Island. The two codefendants, Raymond Fernandez and Martha Jule Beck, stand convicted of her murder, on an indictment which charged that each of them ‘ ‘ then and there aiding and abetting the other, wilfully, feloniously, and of malice aforethought, killed one Janet J. Fay by then and there striking [her] with a hammer, and * * * strangling [her] with a * * * scarf * *
There was a definite conflict of interest between the defendants. Fernandez maintained that he had had no hand in the slaying of Mrs. Fay no matter what he may have done after she had been struck down with a hammer while she and Mrs. Beck were alone together. In his testimony at the trial he stated that on the night of the homicide Mrs. Fay and Mrs. Beck occupied a double bed in the bedroom, while he slept on a couch in the living room of *335the apartment. He said that there came a time between three and four o’clock in the morning of January 4,1949, when he was awakened by Mrs. Fay, the deceased, who was kneeling at the side of his couch. Being unable to persuade her to return to her bed, he went into the bedroom and asked Mrs. Beck to try to persuade Mrs. Fay to return there. When Mrs. Beck proceeded toward the living room, Fernandez went into the bathroom. Before going however, he testified: “ I told her [Mrs. Beck] as soon as I heard both women go back to bed I would leave the bathroom and go to sleep again.” After remaining in the bathroom for a period of from five to ten minutes, he returned to the living room where he found Mrs. Fay crouched over a suitcase, bleeding profusely, with Mrs. Beck standing near her, motionless. He said that he shook Mrs. Beck and upon coming ‘‘ out of something like a daze ” she exclaimed “ What has happened? ”. He then said: “ You ought to know better than I do.” He testified that Mrs. Beck (a registered nurse in Florida) then took Mrs. Fay’s pulse and informed him that she was dead. They then decided to dispose of the body. Fernandez said he did not strangle Mrs. Fay although he did put a scarf around her neck to stop the bleeding so “it wouldn’t get all over the place in handling her”. He attempted to explain his confession of participation by testifying that he made it to shield Mrs. Beck with whom he was in love. That testimony, if accredited, made Fernandez no more than an accessory.after the fact, a crime punishable by imprisonment for not more than five years. (Penal Law § 1934.)
In his charge at the close of the trial, the learned Justice outlined in detail the claims of the prosecution and the evidence adduced in support of them, but failed to make reference to this defense of Fernandez or to charge the law applicable thereto. One of the primary purposes of a charge is to aid the jury in deciding the material issues in a case. It is to point out the relevant, material and vital facts, among a great number before them, which bear upon the issues of guilt or innocence. This court in referring to a Trial Judge’s charge in People v. Fanning (131 hi. Y. 659, 663) said: “ ‘ In a criminal case we think the judge has the right, and indeed it is his duty to present the evidence to the jury in such light and with such comments that the jury may see its relevancy and pertinency to the particular issue *336upon which it was admitted, and thus he better qualified to appreciate its character and weight and to determine its credibility. These questions' are for the jury, but it is proper that a judge should assist the jury in marshalling the evidence so that they may the more readily and intelligently come to a conclusion which shall be satisfactory to themselves, consistent with the evidence and in accordance with the law. The judge should do this in a fair and impartial manner, having due regard to the' rights of the defendant and with a serious and anxious desire for their preservation’ ”.
While the charge took some hours due to the length of the trial, the court failed to make reference to the one issue in the case raised by the defendant Fernandez which, if believed, would have led to his acquittal of the capital offense charged, although it might well have led to his conviction of a lesser crime. An omission such as that in a capital case has been held to be error (see People v. Odell, 230 N. Y. 481, 488; People v. Becker, 210 N. Y. 274, 308; People v. Montesanto, 236 N. Y. 396) necessitating the ordering of a new trial. Here Fernandez was entitled at the very least, to a charge that if he were an accessory after the fact, he could not be found guilty of murder or manslaughter in any degree. The jury was not so charged and it is difficult to see how, when it deliberated, the jury could have given proper consideration to the facts presented by Fernandez in his defense without having been told the law with which to guide themselves, or that Fernandez might be convicted of the felony of being ah accessory after the fact.
Of course, in the average case, where a defendant is represented by counsel alert only to his interest, an omission to charge upon the only defense put forward would be cured promptly by the request of his counsel for a proper and adequate charge with reference to that defense. Here that was not done and that brings us to a second and further reason why there must be a new trial here. There was a sharp conflict of interest between the two defendants and yet they were represented by the same counsel. So clear was that conflict that this court declined to assign for Fernandez on the appeal to us, the counsel who had represented him at the trial and who there also represented Mrs; Beck. (People v. Fernandez, 300 N. Y. 646.) The sharpness of the conflict is made evident by the defense of Fernandez to which *337we have referred. If that defense were true and was credited by the jury, Mrs. Beck and Mrs. Beck alone was guilty of the murder of Mrs. Fay. To request a charge of the Trial Justice that if the jury believed that defense, Fernandez was not guilty of murder but was only an accessory after the fact, would have been to stress and to emphasize that Mrs. Beck was solely guilty. No such request was made by counsel assigned for Fernandez.
At the opening of the trial, counsel theretofore retained by Mrs. Beck and Fernandez presented to the court a letter from the latter stating that he was destitute and asking the court to assign to defend him the same counsel who had been originally retained by both of them. The court thereupon asked the District Attorney, the public official familiar with the ease, to look at the letter. The assistant district attorney after examining it said that the People had no objection to the granting of the request. While the court was not then advised by the assistant district attorney that there was any such conflict of interest as to render it improper to assign the same counsel for Fernandez as was still under retainer by Mrs. Beck, the court was put upon notice of it five days after the commencement of the trial, which lasted for ten weeks, by the counsel for the two defendants. On that day defense counsel asserted that he did not have sufficient time to go over the confessions (plural) which had just been introduced, marked for identification and made available to him. He asked for the assignment of “ more counsel ” and later for the assignment of associate counsel. It was during that colloquy that the attention of the court was called by defense counsel to the duty of the court to protect the interests of the defendants:
“ [Counsel]: Judge, if I undertook something that was too great for me, you are now the presiding judge, you have a duty to protect the rights of these defendants.
“ The Court: And I am doing everything that the law warrants me doing to protect the legal rights of these defendants.
“ [Counsel]: And if I bit off more — ”.
Immediately thereafter, the jury having been excused, a discussion took place in which the Trial Judge offered to assign additional counsel but was informed by the counsel for the defendants that he would consult with Fernandez as to the court’s offer and would let the court know the result of the conference on the following day. On the day following this occurred:
*338“ [Counsel]: If your Honor pleases, for the record may it be noted that both defendants are perfectly satisfied with counsel that is now representing them.
“ The Court: All right.
“ [Counsel]: There is no question about that. I think there was mention yesterday about counsel. They are both perfectly, satisfied and they authorize me to further proceed.
“ The Court: You see no reason for asking that counsel be assigned, other counsel, to assist you?
“ [Counsel]: Not in the middle of this case.
“ The Court: You know, I offered to do that.
“ [Counsel]: Yes. As long as I am not unduly rushed I think I can continue.”
At the time of that colloquy, it had already become apparent that there had been confessions made by each of the defendants implicating the other and that it was impossible for one lawyer properly to defend both. In addition, at that time, both defendants were being defended by counsel under a plea of not guilty with a specification of insanity thereunder. Some weeks later Fernandez withdrew the specification, his counsel stating that the withdrawal was at “ his [Fernandez] specific request.” There was no withdrawal of the specification by Mrs. Beck: The duty devolved upon the court to take prompt action to make certain that each defendant was adequately represented. We think the court should have exercised its own judgment and not been guided by defense counsel (who on the previous day had been of a contrary opinion) nor by the defendants themselves who were not competent to decide or solve the problem presented. A fair reading of the record indicates that, faced with the impossible task of defending two clients, each one of whom was. seeking to throw the blame upon the other, counsel failed to properly protect the interest of Fernandez but seems to have subconsciously placed Mrs. Beck in a preferred position in the defense presented to the crime charged against them both. We shall refer only to two situations which developed upon the trial but which make this situation clear. When Mrs. Beck was upon the stand, under direct examination by counsel, she was asked whether from the time that she was slapped or touched by Mrs. Fay until the time when she was shaken by defendant Fernandez, she had any recollection as to what had happened. It will be recalled-that it was *339Fernandez’ defense that when he came from the bathroom he found Mrs. Fay crouched upon the floor and Mrs. Beek in what appeared to be a daze and that he shook her to bring her to her senses and asked her what had occurred. In response to counsel’s question Mrs. Beck said that she had no way of knowing what had occurred in the meantime. She said :
“ I don’t know whether he had been there and left or whether that was the first time. The first thing I remember is he was shaking me by the shoulders.
“ Q. You don’t know whether Mr. Fernandez came back into the living room and was attempting to blame you for anything in connection with Mrs. Fay’s bleeding? * * *
“ Q. There is no question you don’t know what happened — you have no way of refreshing your recollection either — between the time that you had this discussion or argument or fight with Mrs. Fay up to the time that Mr. Fernandez asked you some questions? A. No, sir. * * *
* * Q. Are you taking or have you taken the word of the defendant Fernandez as to what had happened, if anything, on that occasion? A. Now, what do you mean by that question?
“ Q. When he was shaking you and he asked you certain questions concerning did you do it or what happened, are you taking the defendant Fernandez’ word that something happened involving you and Mrs. Fay. A. It must have.
“ Q. I say are you taking his word for it? A. Yes, I am.”
Counsel realized at this point that he was leading his client Mrs. Beck into testifying to matters where every word she uttered tended to charge from her own lips that Fernandez had been guilty of the murder at a time when she had not been in possession of her faculties. If Fernandez had been represented by counsel of his own, the leading of this witness would not have occurred without objection. Counsel himself realized the situation that was developing, as far as Fernandez was concerned, for at the folio from which we have just quoted (Record, pp. 2586-2587) counsel asked that the record show that the “ last few questions ” asked of Mrs. Beck had been asked at the express request of Fernandez. Fernandez had not yet withdrawn the specification of insanity. The client for whoin counsel had been assigned was thus trying the ease rather than the assigned counsel.
*340Proof that the client for whom counsel had been assigned, Fernandez, as distinguished from the client by whom counsel had been retained, Mrs. Beck, was not, and could not be, adequately and properly represented is conclusively demonstrated by the following question and answer:
“ The Court: Is it the opinion of Dr. Hoffmann that she [Mrs. Beck] is under the legal definition of insanity embodied in Section 1120, now a sane person and has been since the killing of Mrs. Fay?
“ [Counsel]: No. His statement now to me is that she is still suffering from such a chronic defect of reason as to prevent her from knowing right or wrong when under the stress of her obsession; that she may have lucid intervals; she may act a certain way now; but even right now when she is under his domination, meaning the defendant Fernandez, she goes right back to that same set-up. That is Dr. Hoffmann’s story to me now, and he is ready to testify as far as that is concerned. He says she may at times be able to consult with counsel and she may be able to —
“ The Court: All of that should have been gone into before this case was tried. ’ ’ Thus was disclosed not merely hostility between the clients but domination of the client who had retained counsel by the client for whom he had been assigned. Yet these are the clients who through counsel sought to assure the trial court :that they were “ perfectly satisfied ” with the legal representation afforded them.
The final complete abandonment of Fernandez by counsel and of the latter’s defense, however, will be found in his summation. Counsel said: “ * * * But, the only thing I am going to plead here is for their life. I plead for nothing else, believe me. I am not concerned with their liberty, I am concerned with their life. They are charged with a crime here punishable by death in the electric chair, and the only reason I stand here is to see that they do not go to the electric chair.” (Emphasis supplied.) Here then was assigned counsel begging for the mercy of life imprisonment for a client whose defense was that he was an accessory after the fact for which the penalty was five years.
Due process which is guaranteed to each defendant in a criminal case includes the right to the aid of counsel. (N. Y. Const., art. I, § 6; U. S. Const., 5th & 6th Amendts.) In truth, Fernandez had no counsel and his conviction may not stand. (Powell . v. *341Alabama, 287 U. S. 45; Glasser v. United States, 315 U. S. 60; People v. Hull, 251 App. Div. 40.)
Returning now to the fact that the court was duly apprised of the conflict of interest here and was required to act thereon on the original heretofore quoted request of counsel, we quote in addition the following which occurred when the motion was made to dismiss at the close of the People’s case:
“ [Counsel]: In my duty as attorney in behalf of both defendants, if your Honor please, I would like to leave it to your Hon- or’s discretion at this time if your Honor has any feeling that the rights of these defendants may conflict in any way at this time due to the proof that has been adduced at this trial. I ask your Honor to so state.
“ The Court: What do you mean by that?
“ [Counsel]: If your Honor feels due to the proof that has been offered in behalf of "the Prosecution, including these alleged confessions, that the rights of these defendants in any way conflict, I ask your Honor in the interests of justice to so state at this time. * * *
“ The Court: Isn’t it your duty to determine, as counsel for both defendants, under a responsibility which you voluntarily assumed, whether or not the interests of these defendants are in any way in conflict?
“ [Counsel]: They didn’t conflict at the beginning, but your Honor may be of the opinion that they conflict now due to the offer of the People’s case.
“ The Court: I make no ruling now.
“ [Counsel]: Does your Honor rule that their rights conflict?
“ The Court: I make no ruling now. It is your responsibility, the responsibility you faced when you became attorney of record for both of these defendants. You will remember at the very opening of the trial, as the record amply shows, I offered to assign counsel to assist you if for any reason you felt that such assistance might be desirable and necessary, and you have stated quite clearly you didn’t think that you needed associate counsel or counsel to assist you.
“ [Counsel]: After the People’s case is now in, I say in the interests of justice it is immaterial what my thoughts may be if your Honor is of the opinion that their rights conflict. If your Honor is of the opinion that their rights conflict, your Honor *342should take affirmative action. I say that is immaterial of what I may do. * * *
“The Court: What do you suggest?
“ [Counsel]: Your Honor could grant a severance to one of the defendants at this stage of the proceedings.
“ The Court: At this time?
“ [Counsel]: Yes, sir. At any stage of the proceedings.
‘ ‘ The Court: Motion denied.
“ [Counsel]: Your Honor could declare a mistrial.
“ The Court: Motion denied.” (Emphasis supplied.)
It is urged that argument by counsel in this court with reference to the rulings of the Trial Judge on matters of conflict of interest reflect the benefit of hindsight employed from a vantage point long after the close of the trial. To our minds this is not an answer for it is one of the functions of our court in a capital case to look back to see if there was such a conflict of interest as to deprive defendants of a fair trial. Thus in People v. Fisher (249 N. Y. 419, 427) we said: “ A retrospective view by an appellate court may reveal injustice or impairment of substantial rights unseen at the beginning.” And again in the same case, quoting from People v. Snyder (246 N. Y. 491, 497) we said (p. 424): “ The question always presented by such a motion [motion for a separate trial] is whether a jury can properly weigh the testimony upon the various issues which may arise. ' The decision of the trial court rendered before the trial is dictated by a reasonable anticipation based on the facts then disclosed. The decision of this court rendered upon a review of the trial itself rests upon determination of whether the prophesy has been realized.’ ”
We do not hold on this record that the original assignment of the counsel for Mrs. Beck to defend Fernandez was error as a matter of law, but we do hold that it was error for the trial court to fail to act promptly as soon as he was aware of the irreconcilable conflict of interests between the two defendants. The circumstances disclosed on this record rendered it impossible for Fernandez to have a fair trial. Our retrospective view clearly reveals an impairment of the substantial rights of Fernandez ‘ ‘ unseen at the beginning ’ ’ by the trial court.
We think there was a further error committed. The jury was selected from three panels totaling 650 veniremen in all Coun*343sel for Fernandez on this appeal points out that on the voir dire examination of 32 veniremen, the court sustained challenges for cause made by the People upon the ground that the veniremen so challenged had indicated, by voice or upraised hand, that they were opposed to capital punishment.
We shall take an example in addition to the one mentioned at pages 318-319 of the opinion of Judge Lewis as indicating the procedure followed by the court. Three prospective jurors were asked the question whether they were opposed to capital punishment and each raised his hand to indicate that he was. The District Attorney challenged them for cause and the court sustained the challenge. Counsel for defendants sought to question them but the court refused to permit it saying:
“ The Court: No. When jurors state they are opposed to capital punishment, the jurors are legally disqualified from sitting in a case of this character.
“ [Counsel] : May I state the reason why I want to question the jurors?
‘ ‘ The Court: No; because it is not necessary. The mere statement by the three talesman, that they are opposed to capital punishment, is sufficient.
Counsel excepted and was given a “ general exception ” on this point. Exception was again taken by counsel when the defendants had exhausted their peremptory challenges, after the denial of the motion for a mistrial and to dismiss the entire panel, upon the ground that the refusal of the court to permit the opportunity of examination of prospective jurors concerning their views on capital punishment, had seriously prejudiced the rights of the defendants.
Defense counsel objected to the challenges for cause on the ground that a juror is not necessarily disqualified because he is opposed to capital punishment so long as he has no scruples which would interfere with his performance of his duty to determine guilt or innocence. The court, nevertheless, sustained the challenges “ for cause ” saying at one point: “ Being opposed in principle, they can’t serve ”, and at another, as we have seen, “ No. When jurors state they are opposed to capital punishment, the jurors are legally disqualified from sitting in a case of this character.” Later this procedure was abandoned and' proper questioning of talesmen by the court and counsel occurred.
*344It is most important for us to remember that the definition of acts which constitute crimes and all procedure for the trial and punishment therefor are regulated by statutes, within legislative competency under our Constitution. (People v. Glen, 173 N. Y. 395, 400.) Prospective jurors are selected and brought into court through the command and operation of statutes. Unless those statutes are followed there can be no proper jury to pass upon the guilt or innocence of a defendant. After the prospective jurors arrive in court they must be drawn by lot from a wheel in the custody of the clerk of the court. There may be no tampering with the wheel. The defendant is entitled to be tried by the first twelve competent, unbiased and qualified jurors drawn by lot. (Hildreth v. City of Troy, 101 N. Y. 234; People v. McQuade, 110 N. Y. 284.) Before quoting from the Hildreth case, we refer to the discussion in People v. McQuade, a criminal case, at pages 303 to 306, because on the last-mentioned page we find the following: “ This court had occasion to consider this general subject in Hildreth v. City of Troy (101 N. Y. 234), and we adhere to the views then expressed.”
The expression of views by Judge Andrews at page 239 of Hildreth v. City of Troy (supra) tersely and clearly sums up the theory of the applicable statutory law and when read in connection with chapter III of title VI of the Code of Criminal Procedure (§§ 359-387), to which we shall refer hereafter, clearly points up the error committed below. It is as follows: “ The judgment should be reversed. The statute makes elaborate provision for securing an impartial jury. It provides that the first twelve competent jurors drawn, who are indifferent and not discharged or excused, shall constitute the jury. The law prescribes the qualifications of jurors. The court cannot add to, or detract from them. It cannot itself select the jury, directly or indirectly. It cannot in its discretion, or capriciously, set aside jurors as incompetent, whom the law declares are competent, and thus limit the selection of the jury to jurors whose names may be left. If this is done, a legal right is violated, for which an appellate court will give redress.”
Section 377 of the Code of Criminal Procedure enumerates the causes for challenging prospective jurors for implied bias. Subdivision 8 of that section provides that in cases where the crime charged is punishable by death, if a juror has such an *345objection to capital punishment “ as would preclude his finding the defendant guilty; * * * [then] he shall neither be permitted nor compelled to serve as a juror.” Section 376 of the code empowers the trial court “ in the exercise of a sound discretion ” to determine whether such an objection on the part of an individual juror would prevent him from deciding the issues impartially and without prejudice to the substantial rights of the challenging party.
While the statute permits of wide discretion on the part of the Trial Judge, proper procedure requires and permits, in the examination of each juror having a distaste for capital punishment, a further inquiry as to whether such an objection would prevent him from convicting a defendant of murder in the first degree carrying the death penalty if the evidence required such a verdict. (See People v. Carolin, 115 N. Y. 658; People v. Wood, 131 N. Y. 617.)
An accused is entitled to competent jurors drawn for jury duty in the manner provided for by the laws of our State. Such jurors should only be excused for legal cause or by peremptory challenge (People v. McQuade, 110 N. Y. 284, 305-306, supra; Hildreth v. City of Troy, 101 N. Y. 234, supra). While we cannot say that the trial would have resulted differently had these jurors not been excluded, it is probable that the jury would have been constituted differently. Jurors, we know, differ in intelligence, judgment and fitness and, for the sake of justice according to law, Trial Judges should adhere strictly to the rules of law and the methods of procedure governing their selection so as to secure the legal right of a party to. have a jury selected from the competent ones as they are called from the jury box and to prevent any suspicion of an improper trial. The rejection of those 32 jurors without further examination on the sole ground that they were opposed to capital punishment was in contravention of the explicit provisions of section 377 of the Code of Criminal Procedure.
In People v. Prior (294 N. Y. 405) the question presented was whether a motion dismissing the indictments returned against the defendants should be dismissed because the grand jury which returned those indictments was illegally constituted. We answered that question in the negative and the following sentence in the concurring opinion of Lehman, Ch. J., states sue*346cintly the ratio decidendi (p. 413): " The court has, however, no inherent or statutory power to set aside an indictment found by a grand jury because there were errors in applying the statutory method of procuring an impartial jury where the jury as impaneled conforms to the traditional concept of a grand jury and consists of a qualified group of men and women who represent a fair cross section of the impartial citizens of the county. ’ ’
The citation is not apposite here.
The judgment of conviction as to the defendants should be reversed and a new trial ordered.
Dye and Fuld, JJ., concur with Lewis, J.; Desmond, J., concurs in separate opinion in which Froessel, J., concurs; Conway, J., dissents in opinion in which Loughran, Ch. J., concurs.
Judgments of conviction affirmed. [See 301 N.Y. 690.]