People v. Smith , 41 N.Y.S.2d 512 ( 1943 )

Bliss, J.

(concurring). I concur in the opinion of Judge Heffebnah for reversal and the dismissal of the information. To those reasons given by him as to why the judgment must be reversed, I desire to add the following: This trial was had before the Children’s Court without a jury. There was no appearance for the informant and the court prosecuted the case against the defendant. After such prosecution the court also found the defendant guilty and sentenced him to imprisonment. Consequently the defendant did not have a trial such as is guaranteed to him by the Constitutions of our State and Nation.

“ It is a fundamental rule of our common law, embodied in the Constitutions of our State and Nation, that no person may be adjudged guilty and punished upon a charge of wrongful conduct without a hearing*. Decision must await the hearing of the defense. The cause may not be prejudged, and no man may be both accuser and judge. Otherwise a hearing becomes, a fiction, and no fiction can destroy constitutional guaranties.”. (Sharkey v. Thurston, 268 N. Y. 126.)

Cbapseb and Schenck, JJ., concur with Heffebhan, J.; Hill, P. J., concurs in the result; Bliss, J., concurs .in a memorandum.

Judgment of conviction reversed and information dismissed: