Thе defendant was convicted of assault with intent to commit rape, and the case is brought here for review on a single exception. After the
V Whenever it shall appear that, upon the trial of any cause, evidence of licentious, lascivious, degrаding, or peculiarly immoral acts or conduct will probably be given, the judge presiding at suсh trial may, in his discretion, require and cause every person, except those neсessarily in attendance thereon, to retire and absent himself or herself from the cоurt room during such trial, or any portion thereof.”
Whether this statute is effective must depend upon whether the trial provided for may be deemed a public trial; for, if such a trial as is рrovided for by the statute is not a public trial, the act is plainly in conflict with section 28 of article 6 of the Constitution, which reads as follows: “In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury.” This constitutional provision was under consideration in the case of People v. Murray,
“ I cannot accede to the correctness of the proposition intimated in that case, — that, if a public trial has not been accorded to the accused, the burden is upon him to show thаt actual injury has been suffered by a deprivation of his constitutional right. On the contrary, when he shows that his constitutional right has been violated, the law conclusively presumes that he hаs suffered an actual injury. I go further, and say that the whole body politic suffers an actual injury when a constitutional safeguard erected to protect the rights of citizens has been violated in the person of the humblest or meanest citizen of the State. The Constitution does not stop to inquire of what the person has been accused, or what crime he has perpetrated; but it accords to all, without question, a fair, impartial, and publiс trial. There is no such limitation in the Constitution nor in our statute above quoted from which it can be inferred that ‘the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only bе drawn thither by a prurient curiosity, are excluded altogether. ’ Who is to decide who are the friends of the accused ? The law makes no such test, but allows all citizens freely to аttend upon any trial, whether civil or criminal. Instances have been referred to by Judge Cоoley, in his work upon Constitutional Limitations (5th Ed., at page 380 [star page 312]), where, under certаin circumstances, it might be proper to exclude a certain portion of the сommunity from attending trials which would tend to degrade public morals, or would shock public deсency, in which he says that at least the young should he excluded. There can be no objеction to this, so long as citizens of the State who have arrived at the years of discrеtion and manhood are permitted to enter freely. ”
We are constrained to hold that the decision in that case rules the present, and that the order of the learned trial judge was unwarranted.
The conviction will be reversed, and a new trial ordered.