This is an application for a mandamus to require the judge of the superior court to sign and certify a bill of exceptions to his refusal to grant a new trial in the case of the State vs. Henry Jaalcson, found guilty of the offense of murder, and sentenced to be executed. It appears from the record before us and the answer of the judge to the mandamus nisi, that one Martin and the defendant Jackson were jointly indicted *54for murder, the former as principal in the first degree, the latter as-principal in the second degree. The defendants severed, on their trial. Martin was found guilty as principal in the first degree, and the record of his conviction was read in evidence on the trial of Jackson, who was also found guilty as principal in the second degree.' Martin obtained a new trial, and upon the second trial he was acquitted as principal in the first degree. A motion was made for a new trial in the case of Jackson by the counsel appointed by the court to defend him, on the ground that the record of the conviction of Martin had been read in evidence against him over his objections, when upon the second trial it was made to appear that he was not guilty as principal in the first degree (the motion for a new trial in Martin’s case being then pending) by the verdict of acquittal on that new trial. The counsel appointed by the court to defend Jackson, after having made the motion in his behalf for a new trial on the grounds before stated, and before' the court had expressed any opinion in relation to its merits, in the presence and hearing of the court, withdrew said motion, and abandoned the same, whereupon the court, at once, without proceeding further in the case, turned over the papers to the counsel and gave the same no further consideration. Afterwards, other counsel representing the defendant, made a motion for a new trial, under the provisions of the 3719th and 3721st sections of the Code, embracing the same grounds made in the original motion, and for newly discovered evidence, which motion the court overruled, and refused to sign and certify the defendant’s bill of exceptions. 'When the constitution of the state declares that “ every person charged with an offense against the laws shall have the privilege and benefit of counsel,” it means that he shall have counsel who are able and willing to defend him, and protect his legal rights when'put upon his trial for the offense with which he 'is charged. It was the duty of the counsel appointed by the court to defend this defendant, to have pressed his motion for a new trial before the court, and obtained (he decision of the court thereon. If they had done so they might have obtain*55ed a new trial for him. In view of the general conduct of the profession in defending this class of our pauper population, without fee or reward, with the same zeal and ability as if amply compensated for their services, and which is so creditable to them, the abandonment of the defendant’s motion for a new trial without obtaining the judgment of the court thereon, presents such an extraordinary case in the courts of this state as required the court below, when it overruled the-defendant’s motion for a new trial, to have signed and certified his bill of exceptions. The defendant may or may not be guilty of the offense with which he is charged, but if he is guilty he is entitled to a fair and impartial trial, and is entitled to the privilege and benefit of counsel who will see to it that he has such a trial, and if he shall be found guilty according to the' laws of the land, then let him suffer the penalty thereof.- The newly discovered evidence furnished no legal ground for a new trial, and we should not have required the judge to sign and certify the bill of exceptions on that ground.
Let the order making the mandamus absolute be granted.