concurring.
Where counsel have been appointed by the court to represent a defendant in a criminal case, and after conviction a motion is regularly made for a new trial and submitted to the judge, founded on grounds of grave and serious importance, and whilst the court is considering such motion, the same is withdrawn without the knowledge or consent of the defendant, such facts are sufficient to give a right to the party, under sections 3719 and 3721, of the Code, to be heard in vacation, as is therein provided for motions for new trials to be made and heard at a time other than during the term when the new trial was had.
The rule, in my opinion, should be, that when counsel thus appointed, propose to withdraw or abandon any legal proceeding of so grave importance to the defendant thus situated, a motion for a new trial containing grounds that at once arrest the attention of the judge, as in this case, the court should *56either require the counsel already appointed, to have the right of the defendant under the motion adjudicated or should appoint other counsel for that purpose. No person situated as this defendant, should, without his knowledge or consent or laches, be thus summarily deprived of his right to a motion for a new trial which has already been made, and vdiich, as certified in substance by the judge, had challenged his grave and serious consideration. Whilst I could not approve of any ruling that would break down the barriers against negligence or laches, or weaken the provisions of the law requiring proper diligence from parties, I do not think such a rule as is now indicated would have that effect. It would give defendants, who are themselves helpless to secure such aid as they might, of their own volition, select for the defense of their legal rights, a full and fair opportunity of having all such rights legally passed upon, and at the same time leave ample and complete power in the courts so to have the law administered that justice need not be delayed in her demands.
As the motion was made in due time, under the law, and the defendant has not had the privilege of a judgment on the merits of. the grounds contained in the original application,’ and that, too, for causes of which he was not cognizant, and should not be held responsible, I am of the opinion that he is entitled to his writ of error.