*1 WILBUR, Bеfore DENMAN, HEALY, Judges. DENMAN, Judge. Appellant indicted, was by jury tried and convicted of the crime of com- Fairbanks, mitted near Alaska, in violation of Section 4768 of the Criminal Code of Alaska, imprisonment and sentenced to six under Section 4769 of that code. appealed here He from that sentence. The complaining witness was a . married woman age. nineteen Appellant’s defense- pre after liminary experienced embraces of an char acter, they drove to a then unused road nearby, house willingly where she joined in (sexual admitted and then intercourse as, compensation: demanded'-'$100 -The charge rapé,' appellant claims,- arose anger from at' being paid amount, compel payment. its complaining witnеss took the stand and contradicted these statements. Her testi mony of her conduct before and after the alleged rape, corroborated' and contra dicted, and her sole evidence of the rape itself, supports the verdict on infer appellant’s ence that defense was un true and she the unfortunate vic outrage. tim of a brutal Fairbanks, The case tried vicinage alleged open- acts. At the ing of the pub- the court ordered the lic excluded and admitted law, officers press, representatives of the and the broth- er and father of the defendant. Defend- public trial, ant claimed his giv- Amendment, en the Sixth ob- j ection to the order of the court which was overruled, excepted, assigns and here right. denial of that government relies on two decisions appeals court in the sentences of the Alaska District crime rape, Reagan States, Cir., *2 right trial, to falls on the burden L.R.A.,N.S., and Calla 488, 44 F. pre- Cir., re defendant show that to he States, 240 F. han case, judiced by agree Reagan the denial. We with the lying the decision in on Eighth decision Davis v. ex of Circuit in similar was a which there of in both Cir., 394, 398, L.R. However, in both F. public. of the clusion A.1918C, 1164, con- sig “A violation of were the indictments cases these right necessarily implies pre- stitutional section of the nificantly provisions different judice and more than that need not defining Code Criminal the Alaska of difficult, Furthermore, pear. would be rape. section is of That crime impossible, carnal cases for a de- has such “Whoever аs follows: reads knowledge definite, personal forcibly point and fendant to to person, a female of injury. require To him would im- of to do so will, being sixteen or against her destroy safeguard.” pair female or carnally abuses a knows age, age, with her years of under sixteen It is obvious that the defendant’s rape.” consent, of guilty is presumption of raping of this innocence victims earlier In these both adult requires married woman that he shall In age. neith- of fourteen girls were given his full to establish claim his consent of the defense case could er to her consent to the admitted sexual inter married adult In raised. Equally course. obvious that such a de reasonably could woman, the trial court fense will cause the accusing “em witness defensе of be the would pect that such barrassment” trial whether accused. testifying truly falsely. or It would be de nying presumption the defendant his in Reagan In case this did predecision by nocence and a public was hold that the exclusion guilt his to hold that such a married woman not violation public the defendant’s that, must relieved of that on embarrassment be What was held was case, uрon cause possible testify she is “called to to the existing no in that facts story of the defendant’s crime and her prejudice could have been suffered [Emphasis supplied]. (See shame.” pub- from the of the mat exclusion defendant quoted ter above case.) from the ground states that of the lic. The L.R.A., proper not it F., Whether for the trial page 490 at decision judge in that case con- to exclude the N.S., 583, follows: “The assumption that the crime had been might have benefit ceivable year committed on those fourteen old deprived byof order of the assumption girls, no such can be presence made here. in the court- idle, loafers, gaping of a room crowd purposes One of main of the curiosity lead to morbid whose admission of the is the reasonable consequent em- and the such a attend possibility that unknown to the annoyance presence barrassment and having knowl girl the unfortunate might cause to facts, may edge be drawn to the testify story to was called example, where defense trial —for here crime her Of shame. defendant’s accusing witness a woman the defendant deprival of that benefit paid sexual in who desires her complain.” legal no woman, another If such such man tercourse. found on the facts concern- Having thus paid might intercourse who had had year children that old fotirte.cn ing these Realizing danger in attendance. be the defendant prejudice, we treat as be no could penalty heavy for the “We cоurt’s statement dictum charged, well might crime ad serious it is not doctrine the better think experience counsel defendant’s vise with the his spectators exclude reversible as was done the case accusing witness. Even without the order of the court presence very in the courtroom bar, showing when there no at fear or might arouse in sense preju- defendant was whatеver would alter or weaken testi shame presence, deprived thereby, or diced mony against the accused. any person pres- aid, counsel ascribed latter reason advantage might have been of ence for the and Blackstone ac- Hale cused him.” presence com- system Hale law trials. commends the mon do not with this dictum We “in giving that, denial оf the constitutional parties, phasis bystanders” counsel cmd all We find error in [em- no the other as later, signments supplied] contrasting the stated, of error. As there is against the ecclesiasti- sufficient *3 merits evidence to warrant verdict. the upon deposition, describes, cal states: sufficiently by trials indictment name, maiden woman whom the “Ninethly, excellency Open of this the charged rape it is the was committed. The jury, presence course of in evidence preliminary failure at the hearing to state counsel, judge, jury, parties and all the attending rape facts the in claimed witnesses, appears even of the adverse these in response proceed “to instruction particulars. happened,” tell what not im a оf openly, priv- in “1st. That it and not 195, peachment. Ogden, State v. Or. 39 two, ate couple a a commissioner or before P. 65 449. The sentence which constitutes clerks; where, of oftentimes wit- judgment sufficiently preceded by the the will will they nesses deliver that which recital of finding guil verdict 1 testify publickly.” ashamed to ty. Blackstone follows in almost same language.2 Appellant was demand еntitled to giving proper proposed of a instruction apparent It is defendant would impeachment. There was no not persons know the excluded requested refusing error in instruction create in a witness the fear of thus 6, reading, No. public exposure the shame false testi- mony, heightened by a shame to be the fear Requested by “Instruction 6 Defend- prosecution рerjury. ant. are You instructed that witness may impeached by party against Blackstone and Hale are among the ac- cepted by contradictory whom he lawyers or she was called text books who were evidence or members or she had convention. made at other times statements inconsist- Whether or that convention had in ent and particular mind these at variance with or portions what he she of the writ- may ings authorities, have testified recognize two these witness describing stand. the reasons for as law, trial at the common which you any “If believe that in witness prevailed in when the successfully impeached, you case has Constitution was framed. justified disregarding will in the entire testimony of such unless his witness or is not to consider testimony is corroborated other credible there is discretionary power whether in in the or evidence cumstances facts and cir- the trial court to exclude from the court ” * * * proven children, Adams, room minor State v. 100 368; actually S.C. S.E. gave following : instruction disturbing proceedings, you “If wilfully State Cal find that witness has lahan, 342; falsely Minn. 110 N.W. part in one or her testified of his likely disturbance, those to crеate testimony any part, case, you may in this distrust Buck, Fed.Cas.14,680; States v. or adults testimony all of such which, witness, you in cases in facts are trial progresses, reject are not bound to developed pathologic testimony and re entire of witness because perversion. volting Assuming wilfully falsely she in he or has testified discretion, part testimony; such the trial you erred in some reject should power assuming the part, ex exclusion here false give and should charge rape ercised at trial on the parts you may weight deem they anof adult woman. justly receive.” entitled to History Hale, presence mankind, Sir Matthew of all much England; XII, clearing up Common Law ch. Run- more conducive pp.
nington’s ed., truth, private 343 and 345. than the secret examina- pagе At tenth writing of his edition he tion taken down in officer, “And courts, states: all this evidence ecclesiastical given open court, prac- all others borrowed attorneys', parties,, tice from the civil law: where wit- by-standers.” may frequently depose pri- and all ness page open vate, And he'states: “This which he will be ashamed tes- voce, tify examination of witnesses viva in а and solemn tribunal.” perience, deliberately sufficiently re- instruction believe We j ected the line of which denied to the impeachment. question of covers portion excluding trial court discretion in Reversed. from trial for such as regard at bar. In that it is (concurring). HEALY, Judge L.R.A., F., (page there said N.S., 490 of DENMAN with what 583) : him, think, a new trial that the said, with “We think the better doctrine is that public is be had spec- is not reversible error to exclude the excluded. tators was done *4 as order of ex- for the reason genuine was no There bar, court in the case when there no at instance at the was made It clusion order. showing whatever the defendant was that on the suggestion any without judge, the of part thereby, prejudiced deprived Ter- prosecuting officers prеsence, aid, any person or counsel of insisted vigorously The ritory. defendant presence might have been of ad- public trial. right to a constitutional on his vantage provi- to him. The exceptional circum- very only under It stances public sion for a trial be should construed may properly be right that such sense, in a reasonable and in view the circumscribed, no unusual circumstanc- object thereby intended to be subserved. present here. es were right The mere denial of the literal the stat- recognize I force While reversing judg- be held not ment, that err- 391) providing (28 ute U.S.C.A. § perceived unless can be that not disregarded “which do to ors are deprived defendant had been of some bene- parties,” rights of the the substantial affect advantage thereby.” fit or and of it- forgotten that in not it must In this connection it should stated is a right public trial sub- self the making an exclusion order the trial substantial, indeed, to right, as so stantial any specify court asked the defendant to Amendment. guaranteed by Sixth public member of the whom to he desired present. He was unable have to name WILBUR, (dissenting). persons whom he desired to opinion distinguish The seеks to the case permitted in by court other than those at bar from in the decisions general right order but asserted to have 488, States, Cir., Reagan v. F. United 9 202 public present the trial. 583, L.R.A.,N.S., 44 United and Callahan v. Washington, In the case of Gaines v. 277 683, States, Cir., dealing 240 9 with the F. 469, 81, 83, 85, 468, 48 72 L.Ed. U.S. 793, S.Ct. public right to a trial the de- secured to Supreme the views Court took notice of the by fendant federal the Sixth Amendment to the quеstion of to two re- Constitution. The trial court public to trial under the Sixth Amendment lied sustain the order these cases to to States. the Constitution United excluding part his own motion “Many The court state Constitutions said: The from the guaranty substantially contain similar pellant, brief, in to differentiate seeks question and restriction. con what argu- in from the case at bar cases but trial the which is stitutes mеnt admitted that we followed these guaranteed and what discretion thus previous decisions would have to rule limiting audience exercise in in that there ex- is no error order of do spectators is which the cases one I by agree the court. clusion made given Reagan in v. differ. Two views those two that each of cases fact 488, States, Cir., L.R.A., 44 F. United dealt with a trial for the сommission of 583, States, N.S., and Davis girl (under rape age age on a 394, 1164, Cir., L.R.A.1918C, both F. in consent) present while the many Ac state cases are cited. upon young committed woman them, cording to some the order com age, the cases. is true that differentiates It plained regarded er of here would be respect is a in that difference but roneous, be held it would while others distinguish quеs- the constitutional does not tion of judicial to be within discretion of trial here in- court.” United decision v. volved. The proper upon the pass court did not States, experi- supra, by was written interpretation the Sixth Amendment judge, concurred in his as- enced it was not because federal Constitution long judicial both sociates who had applicable to and the trials а state court add the recent decisions ef- writ of error in that case was to fect statutory amendment, directed 28 U.S.C. Washington. pro- 391, state of supra. It is now § shown was not posed, it, decisions, as I view to reverse our prejudiced by that he was one of which has more than 30 ruling stood for of the trial court. years, adopt principle and to laid I do proposition with the Ap- Eighth down peals enunciated “one main 394, in Davis v. F. purposes of the main admission of L.R.A.1918C, 1164, cited above the Su- possibility is the reasonable preme Washington, Court in v. su- Gaines unknown to the or their pra. counsel, may having facts, knowledge of the In this connection it should be noted be drawn to the trial —” do not etc. since decision quotation justi- Davis believe that the from Hale Stаtes, supra, Congress enacted stat- fies the purpose statement that the ute, adopted rule is arouse in witnesses “ * ** prohibiting shame, reversal of fear hope or a sense *5 defects, errors, exceptions public might which do not trial attract witnesses who rights par- affect ties.” substantial would their information volunteer prejudice to that time was Prior wrong-doing. own рresumed from an the mere commission of I Judge think that Cooley in his work on required error ain criminal case a re- (p. 383) Constitutional Limitations versal it the en- unless could be seen amade correct statement as to the reasons prejudice tire record The that no resulted. public requiring trial. This statement Congress presumption act reversed the quoted approval by Supreme with regard presumption prejudice Hartman, of California People v. error from an it is now 242, 244, 153, 154, Cal. P. Am.St. any, error, appellant if show that the Rep. 108: public “While prejudicial. was The' statement contemplated trial not the constitution does Sanborn, opinion Davis in the court’s require of courts unreasonable and im- States, supra, prejudice that pоssible things, all persons that have presumed be would from the denial of a present absolute and witness the prior right, to the proceedings, regardless court’s veniences of the con- 1919, 28 act of and must court, and the due or- statutory light of be read in the derly yet provision conduct this (cid:127) change. Unless we are to assume that fair must have and reasonable construc- whеre the error affected tion in Judge interest of the accused. pre- constitutional one error will Cooley, in his work Constitu- prejudicial notwithstanding sumed to (page 383), tional Limitations has well de- statutory change, must the record to ascertain look to the true following clared the rule lan- has been requirement ‘The guage: trial prejudice and here nor at- none shown accused, the benefit of is for —that tempted to be shown. The statute makes fairly with, may see that he is dealt no such none distinction think exists. unjustly condemned, and not and that the may the ruling spectators keep be that of the trial presence of interested portions in excluding keenly his triers responsibility, alive to a sense importance from the court room was too broad in and to the large portion cluding so functions; requirement error, any, if, is not so clear and certain fairly partiality observed without n justify overruling long favoritism, our stand- proportion a reasonable opinion ing attend, of this has not on- is suffered to notwithstand^ upon by acted ly ing court but that those could applied great many accused, rule service be of no (сid:127)states. drawn prurient hither ” curiosity, altogether.’ excluded it, I view the case of v. As Unit- was cited our court in United things: First, States decided two ed Reagan, supra. v. specta- is not error to limit number of majority proceeds tors who could enter the up- room in a The kind; second, and, theory case of that evidence of that if on of acts prejudicial. incontinency by cоmplaining it was not To wit-
gg m be admissible in nesses would majority favor the defendant. although contrary, tlie hold to the states testimony. permit there are some appeal question not involved in- us and introduced assumption some- by a mere testimony. might one volunteered such al. BORDEN CO.
BORELLA et
No. 398. Appeals,
Circuit Court of Second Circuit.
July 28, 1944. Certiorari Jan. 1945. Granted
Writ of
See
appellee. HAND, CLARK, SWAN, L. Before and Judges. HAND, L. Judge. appeal judgment, is from a dismiss-
ing complaint an brought action employees of the to recover for them, they denied overtime which assert 7(a) to have been due Fair under Act, 207(a), Labor Standards Title § which are not facts, dispute, sufficiently find- stated upshot judge. ings the trial as follows. The defendant is a Jersey corporation engaged New milk business, “processing, which includes manu- facturing, selling distributing” milk such, making evaporated condensed cream, milk, “casein, butter, ice cheese and products.” It enor- various business, products mous and sends its throughout for- eign manufacturing all countries. The place factories takes in the Canada, operates; which owns and executive and administrative ac- its supervision, management tivities —the the entire control business —are all building York, office in an in New centered owns, occupies and of which it per fifty-eight cent of the total rentable is not state area. in de- place the various activities tail which take