In re Kirkpatrick

Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: The appellant, an infant 11 years of age, was adjudicated delinquent upon the charge that he had thrown stones at a moving train and had broken a window in a passenger ear. The most damaging proof was the testimony of a railroad policeman who had secured a written statement from the boy admitting that he had thrown stones at a passing train, which the lad described as a long series of freight ears. Although the witness had used the statement to refresh his recollection, the court refused defense counsel’s request to see it. The same procedure was followed with reference to a statement of a companion of the appellant. It was error to have denied the appellant’s attorney an opportunity to examine these statements. (People v. Rosario, 9 N Y 2d 286.) Furthermore, the Children’s Court Judge refused to admit into evidence a photograph of a freight ear which the appellant attempted to show was similar to the one at which he had thrown the stones. This exhibit had probative value and should have been received. These prejudicial errors make a new trial necessary. (Appeal from judgment of Onondaga County Children’s Court convicting *1128the respondent of the act of juvenile delinquency.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.