#### THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. BERNARDINO CASSIANO, Appellant.

*Criminal trial*— *the prisoner’s counsel must be notified before further instruc tíons are giren, to a jury which has once retired*— *Code of Criminal Procedure, sec.*437 — *The jury is entitled to know the punishment prescribed for the crime*— *Bight of the jury to consider the intoxicated condition of the accused,*— *Penal Code, sec.*33.

Where a jury, after it has retired to deliberate upon its verdict, returns into court and asks for further instructions, the prisoner has, under section 437 of the Code of Criminal Procedure, an absolute right to have his counsel notified of the fact, and it is a fatal error for the court to give further instructions to the jury before giving such notice to the counsel, even though the prisoner himself be present in court and takes no exception to the instruction so given.

Upon the trial of a person indicted for murder in the first degree the jury, after having retired to deliberate upon its verdict, returned into court and asked what the statute punishment for murder in the second degree was. The court replied that that was not a matter for their consideration in arriving at a verdict.

*Eeld,*that this was error.

*389That while it is proper to instruct the jury that where a crime has been proved the extent of the punishment prescribed therefor is no sufficient reason why a verdict in accordance with the facts as proven should not be rendered, yet as a part of the case the punishment should be known to the jury.

Upon the trial of a person indicted for murder in the first degree the jury may, under section 32 of the Penal Code, take into consideration the fact that the accused was intoxicated at the time when he committed the act.

Appeal by tbe defendant from a judgment of a Court of Oyer and Terminer, convicting bim of tbe crime of murder in tbe first degree. »

*Louis E. Carr*and *M. H. Hirsohberg,*for tbe appellant. ■'

*Walter C.*Anthony, district attorney, and *William D. LHoJcey,*for tbe respondents. -

Barnard, P. J.:

Tbe prisoner was convicted of tbe crime of murder in tbe first ■degree at tbe Orange county Oyer and Terminer in January last. After tbe case had been given to.tbe jury and they bad retired, and after deliberating upon tbe evidence the jury requested further instructions. Tbe prisoner was brought into court and tbe jury were recalled. Tbe counsel who represented the prisoner were not notified of tbe 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 tbe jury return for further instructions the counsel for tbe prisoner shall be notified. In tbe absence of tbe counsel tbe jury asked for tbe statute punishmentjjfor murder in tbe second degree, “ what tbe sentence is.” Tbe court replied that that was not a matter for their consideration in arriving at a verdict. Necessarily there was no exception to this course as tbe counsel were absent, but upon appeal it must be passed upon whether or not tbe refusal was right. Two questions are thus raised: Was it error to answer tbe jury without notifying counsel, without regard to the correctness of tbe charge? and, second, were tbe jury entitled to tbe information sought ? We think it was an absolute right of tbe prisoner to have bis counsel notified after tbe jury returned into court and before they were -instructed. Tbe words of tbe statute are imperative that tbe information sought by tbe jury “ must be given after notice * **** to tbe counsel *390for the defendant, and in case of felony in the presence of the defendant.”

As to the defendant’s right 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 reversed the judgment. *(Maurer*v. People, 43 N. Y., 1.) The right of an accused 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 therefor 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 jury. 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 qnestion 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 twenty-two it is provided that the fact that the accused was iñtoxicated 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., concurred.

Present — Barnard, P. J., Dvkman and Pratt, JJ.

Conviction reversed, and new trial granted.