majority">Rich, J.:

As the question of appealability is not raised, we have decided to entertain the appeal in this case without deciding, however, that such an appeal will lie.

The defendant was, on March 3, 1923, indicted for the crime of manslaughter in the first degree. She retained the appellant to defend her and after a trial lasting five days the jury failed to agree and they were discharged. The appellant was not paid for his services, and as a result a misunderstanding arose and the appellant declined to continue to act as her counsel. Some time later a retrial of the indictment was moved and the defendant not having engaged other counsel and being without counsel to represent her, the learned justice presiding assigned the appellant and directed him to act for her, and from that order this appeal is taken.

Where a person charged with crime is unable to procure counsel, it is the duty of the court before whom he is brought to assign counsel (Code Grim. Proc. § 308), and it is likewise the duty of the attorney assigned to undertake the defense of the person accused without compensation. We believe it to be the duty of the court in such a case to select counsel fit and competent to undertake the task assigned to him, but in doing this the court ought to have in mind that the same relation of trust and confidence exists between the accused and the counsel as is expected between an accused and counsel acting under a retainer.

It is the duty of counsel to comply with orders designating him to act for unfortunates whenever his previously arranged professional engagements will permit, but there are exceptions to this rule, and the present appeal presents one.

It seems that a promise made in behalf of the accused to pay appellant for his services upon the former trial has not been kept. The appellant contends that this is not because of inability on the part of the promisor to pay the agreed compensation. It appears that he has spent more than fifty days on behalf of defendant in various matters. He complains of her lack of co-operation in procuring minutes of the former trial and of her ingratitude for *583what he has already done in her behalf. There is discord between defendant and the appellant, he is out of sympathy with her defense, and claims that he could not in good conscience undertake to defend her.

Under the circumstances we are of the opinion that the assignment of appellant to represent the defendant and act for her on the trial was not well advised.

The order should, therefore, be reversed.

Kelly, P. J., Jaycox, Manning and Kapper, JJ., concur.

Order reversed upon the law and the facts, without costs.

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