(dissenting). I must respectfully dissent. After a long history of underpaying attorneys for the defense of an indigent accused, the legislature by ch. 500, Laws of 1961, amended sec. 957.26, Stats., the compensation section for court-appointed counsel, to allow compensation pursuant *608to sec. 256.49, which was created by ch. 118, Laws of 1957. This section provides the court shall fix the amount of compensation as it shall deem proper and defines such compensation to be “such as is customarily charged by attorneys in this state for comparable services.” The mandate was not and is not followed in this case.
The federal constitutional right of “Assistance of Counsel for his Defense,” means no subsidiary role by counsel as implied in the majority opinion. The phrase must be understood in its historical context of the common law which denied an accused, rich or poor, the right of counsel in a criminal case. This rule, changed by statute in England in 1836, was rejected by our federal and state constitutions. Today the constitutional mandate includes the right of an indigent accused in felony cases to have assigned an experienced, competent, and zealous attorney to represent him. Such assignment is required by the twin principles of justice under law and equal justice for the accused if those principles are to mean more than empty phrases in our democracy. Johnson v. United States (App. D. C. 1940), 110 Fed. (2d) 562. Likewise, the indigent accused has a right to counsel on appeal. Douglas v. California (1963), 372 U. S. 353, 83 Sup. Ct. 814, 9 L. Ed. (2d) 811. The representation by court-appointed counsel admits of no perfunctory performance of duty but demands the conscientious application of full effort, resourcefulness, and ability. Assigned counsel is not cast in the role of a sympathetic spectator to watch the prosecution try its side of the case.
I do not subscribe to the presumption the state has the power to require lawyers to provide indigents with the required service without compensation. Carpenter v. Dane County (1859), 9 Wis. 249 (*274), does not so hold and in fact held a county liable for the compensation of an appointed attorney although there was no statute fixing the liability upon the county for such services, saying (p. 252 (*277)) :
*609“It seems eminently proper and just that the county even in the absence of all statutory provision imposing the obligation should pay an attorney for defending a destitute criminal.”
In construing sec. 256.49, Stats., the best guide to the customary charge by attorneys in the state for comparable services is the schedule of minimum fees of the State Bar of Wisconsin. The schedule should be recognized by this court as prima facie reasonable. We relied on the schedule in Touchett v. E Z Paintr Corp. (1961), 14 Wis. (2d) 479, 111 N. W. (2d) 419. In Lathrop v. Donohue (1960), 10 Wis. (2d) 230, 102 N. W. (2d) 404, we pointed out the schedule as one of the many worthwhile activities of the State Bar and it was so referred to by the United States supreme court in affirming the Integration of the Bar. Lathrop v. Donohue (1961), 367 U. S. 820, 81 Sup. Ct. 1826, 6 L. Ed. (2d) 1191. The schedule of minimum fees was initially the work of the committee of economics of the bar composed of 24 well-known lawyers from all parts of the state. The board of governors of the State Bar adopted it and the State Bar spent approximately $12,000 in publishing and distributing it to the lawyers of the state. It is reported 23 local bar associations have adopted the schedule which represented 4,084 active members, or 83 percent of the 5,220 lawyers in the state as of June 1, 1960. See Elerbert L. Terwilliger, The President’s Report, 33 Wisconsin Bar Bulletin (August, 1960), p. 40. It is shocking then to find the schedule deprecated in the majority opinion as only constituting a collective judgment of the committee which passed upon it.
In the introduction to the schedule the bar urges the use of the schedule subject to the proscriptions of Canon 12 of Professional Ethics as a realistic basis on which to render services. The Canons of Professional Ethics of the American Bar Association were adopted as rules of this court in Rule 9 *610of the Rules of the State Bar of Wisconsin. 273 Wis. pp. xi, xx. Canon 12 provides in part :
“In determining the amount of the fee, it is proper to consider : (1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the lawyer’s appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service.”
These factors are substantially those referred to and also approved in Will of Willing (1926), 190 Wis. 406, 209 N. W. 602, Continental Casualty Co. v. Pogorzelski (1957), 275 Wis. 350, 82 N. W. (2d) 183, and Touchett v. E Z Paintr Corp., supra. For a discussion of each factor and the problem generally, see Anno. Attorneys’ Compensation— Amount, 56 A. L. R. (2d) 13.
Applying these factors not to determine whether the trial court abused its discretion but to determine the fact independently thereof under the exception to the great-weight and clear-preponderance-of-the-evidence rule as stated in Touchett v. E Z Paintr Corp., supra, I must conclude $6,500 is not reasonable compensation for counsel in this case. The majority reasons that amount of money is sufficient at two thirds the State Bar rate to cover five weeks of trial and 292 hours *611of preparation and somehow that was sufficient time at public expense to prepare the defense and present it at the trial of the charge of murder against the indigent. We must recall the words of Carpenter v. Dane County (1859), 9 Wis. 249 (*274), 251 (*276):
“But surely the citizens of a county are vitally more interested in saving an innocent man from unmerited punishment than in the conviction of a guilty one. Suppose a man too poor to retain counsel to be put upon trial for an offense involving his liberty for life; the constitution declares that he shall enjoy the right to be heard by himself and counsel.”
We have no quarrel with taking two thirds of the State Bar rate as a guide for compensation for court-appointed counsel. Lawyers as officers of the court dedicated to the administration of justice have made from time immemorial and will continue in the best tradition of the legal profession to make sacrifices of time and ability in the aid of indigents. Mr. Conway on oral argument so agreed. However, there is a limit beyond which the public in fulfilling its duty to indigents can expect any lawyer or the legal profession to go. It is this concept and the recognition of the public duty of the rights of indigents which have gained adherents to the public-defender system. There is presently pending in Congress the Criminal Justice Act of 1963 (S. 1057 & H. R. 4816), whose purpose is to provide adequate representation in federal courts of indigent defendants charged with felonies or some misdemeanors and which sets the rate of compensation not to exceed $15 per hour for private attorneys and attorneys furnished by a bar association or legal-aid society.
Counsel was appointed because of his experience and skill in criminal matters and his competence to represent a person charged with murder. Being engaged in daily trial for seven weeks involved a loss of other employment as he could take *612care of no other business during that time, nor does a per diem charge reflect the accumulated drain on the physical and nervous system of a trial lawyer. His compensation is gross income; his overhead of maintaining his law office during that time continued. His client was not charged with a minor transgression against society but first-degree murder. The case was consolidated with the trials of two other Illinois men for shooting a Wisconsin police officer. This was an important case to society and to the defendant. The murder and the progress of the trial attracted wide publicity and were front-page news in the daily papers, on the radio, and television.
The main objection to Mr. Conway’s bill seems to be he overprepared and overtried the defense. By the hindsight theory, the majority opinion justifies the disallowance of over one half of the work as unnecessary because fruitless and as one of the hazards of the profession. The proper preparation of any important lawsuit as well as many unimportant ones involves research and investigation which perhaps do not turn out to be advantageous to the client. In the defense of an important felony, a lawyer appointed by the court cannot in justice to his client and in the interests of justice go into the trial poorly or partly prepared. One does not know how much preparation is going to prove fruitless until the trial is over. Lawyers are not gifted with clairvoyance any more than judges and should not be penalized for the lack of it.
We are told in the briefs the district attorney estimated the trial would take five weeks and he would call some SO witnesses. He called 55 witnesses and the trial took seven weeks. In preparing its case, the prosecution had the aid of the Wisconsin Crime Laboratory which spent 1,254 hours on the case. An attorney appointed by the court has no staff of paid investigators. He must do the work himself. The inequality between the prosecution and the defense of an *613indigent is a source of great concern of those conversant with the problem. See Equal Justice for the Accused, a report by a Special Committee of the Association of the Bar of the city of New York and the National Legal Aid and Defender Association (1959). True, there is opposition in some quarters to the cost of assigned counsel or a public-defender system; the cost to the county involved in this case was great which, under our present law, the county had to entirely assume. But isn’t it but part of the price of democracy?
The trial court stated the trial should have taken no more than five weeks. Reconstructing counsel’s statement of services at bar rates produces the sum of $14,783. Taking two sevenths off of both trial and preparation time, on the trial court’s statement of excessive time, leaves a bill of $10,560 or approximately $4,000 more than the majority allows. Giving weight to all the factors which this court has said should be taken into consideration, I do not consider $6,500 a fair and reasonable fee for the services rendered by counsel and must respectfully dissent.
I am authorized to state Mr. Justice Dieteeich joins in this dissent.