The prisoner was convicted of the crime of murder in the first decree, at the Orange County Oyer and Terminer, in January last. After the case had been given to the jury, and they had retired, and after deliberating upon the evidence, the jury requested further instructions. The prisoner *507was "brought into court, and the jury were recalled. The counsel who represented the prisoner were not notified of the request of the jury, or of their recall for further instructions, and they were not, in fact, in court. By section 427 of the Code of Criminal Procedure it is provided that in case the jury return for further instructions, the counsel for the prisoner shall be notified.
In the absence of the counsel, the jury asked for the statutory punishment for murder in the second degree, “ what the sentence is.” The court replied that that was not a matter for their consideration in arriving at a verdict. 'JSTecessarily there was no exception to this course, as the counsel were absent; but upon appeal it must be passed upon whether or not the refusal was right. Two questions are thus raised : was it error to answer the jury without notifying counsel, without regard to the correctness of the charge ; and, second, were the jury entitled to the information sought ?
We think it was an absolute right of the prisoner to have his counsel notified after the jury returned into court, and before they were instructed. The words of the statute (Code Crim. Pro. § 427) are imperative, that the information sought by the jury “ must be given after notice ... to the counsel for the defendant; and, in case of felony, in the presence of the defendant.” As to the defendant’s rights to be. present, that was the requirement of the Revised Statutes ; and when correct, instructions were given in the presence of the counsel for the accused, but in his absence, the court of appeals revised the judgment. People v. Maurer, 43 N. Y. 1.
The right of an accused to counsel is part of our system. In the present case it is apparent that the counsel for the accused might have induced the court to furnish the information sought, as there can be no doubt but that it Was within the discretionary power of the court, even if it was not a legal right. We think the information should have been given. In all cases the jury should know the effect of their verdict. While it is proper to instruct them that When a crime is proven the extent of the punishment therefore is no sufficient reason why a verdict according to the facts found should not be rendered ; yet, as part of the case, the punishment should be known by the *508jury. It.was therefore a fatal error not to notify the defendant’s counsel when the jury asked for further instructions.
It is not material to examine the question whether the jury were authorized to take into their consideration the intoxicated condition of the defendant when the crime was committed, in determining the question whether the blow was struck in sudden passion, and without the deliberation now needed to constitute murder in the first degree.' Since the trial of the case, the present Code has gone into effect, and by section 22 it is provided that the fact that the accused was intoxicated at the time can be taken into consideration in determining purpose, . motive, or intent.
The conviction should be reversed and a new trial granted.
Pratt, J., concurs.