ot an absolute
concept. * * * What is fair in one set of circumstances may be an act of
tyranny in others."[963] Conversely, "as applied to a criminal trial,
denial of due process is the failure to observe that fundamental
fairness essential to the very concept of justice. In order to declare a
denial of it * * * [the Court] must find that the absence of that
fairness fatally infected the trial; the acts complained of must be of
such quality as necessarily prevents a fair trial."[964] And on another
occasion the Court remarked that "the due process clause," as applied in
criminal trials "requires that action by a State through any of its
agencies must be consistent with the fundamental principles of liberty
and justice which lie at the base of our civil and political
institutions, [and] which not infrequently are designated as 'the law of
the land.'"[965]

Basic to the very idea of free government and among the immutable
principles of justice which no State of the Union may disregard is the
necessity of due "notice of the charge and an adequate opportunity to be
heard in defense of it."[966] Consequently, when a State appellate court
affirms a conviction on the ground that the information charged, and the
evidence showed a violation of Sec. 1 of a penal law of the State,
notwithstanding that the language of the information and the
construction placed upon it at the trial clearly show that an offense
under Sec. 2 of such law was charged, that the trial judge's
instructions to the jury were based on Sec. 2, and that on the whole
case it was clear that the trial and conviction in the lower court were
for the violation of Sec. 2, not Sec. 1, such appellate court in effect
is convicting the accused of a charge on which he was never tried, which
is as much a violation of due process as a conviction upon a charge that
was never made.[967] On the other hand, a prisoner who, after having
been indicted on a charge of receiving stolen goods, abides by the
prosecutor's suggestion and pleads guilty to the lesser offense of
attempted second degree grand larceny, cannot later contend that a
judgment of guilty of the latter offense was lacking in due process in
that it amounted to a conviction of a crime for which he had never been
indicted. In view of the "close kinship between the offense of larceny
and that of receiving stolen property * * *, when related to the same
stolen goods, the two crimes may fairly be said 'to be connected w