5 Ga. App. 59 | Ga. Ct. App. | 1908
The only exception insisted upon is that as soon as tbe jury was impaneled the court, over the -express, objection of the defendant, “ordered the court-room cleared of every one not connected with the case.” The objection of the defendant, was that the action of the court violated his constitutional right, to have a public trial. Our constitution, art. 1, sec. 1, par. 5 (Civil Code, §5702), provides, among other things, that “every person charged with an offense against the laws of this State . . shall have a public trial.” The Civil Code, §5296, provides, “During the trials in the superior courts, and all other courts and trials occurring in this State, of any case of seduction or divorce, or other case where the evidence is vulgar or obscene, or relates to the improper acts of the sexes, and tends to debauch the morals of the young, the presiding judge shall have the right, in his discretion and on his own motion, or on motion of plaintiffs or defendants, or their attorneys, to hear and try the said case after clearing the court-room of all or any portion of the audience.” The State’s counsel does not insist that the statute gives the presiding judge such a breadth of discretion that, he may destroy or diminish the defendant’s constitutional right of a public trial. Counsel .for the accused does not contend that the statute is unconstitutional because repugnant to the foregoing clause of the bill of rights, but recognizes that a trial may ba
The text-writers and the annotators of the standard collections of cases, such as the Lawyer’s Eeports Annotated, the American State Eeports, and the American and English Annotated Cases, all unite in stating that the reported cases on this question are comparatively few in number. Most of the courts, especially in the more recent cases, cite or quote, as a reasonably accurate statement, the following extract from Cooley’s Constitutional Limitations (6th ed. 379) : “It is also requisite that the trial be public. By this is not meant that every person shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of a portion of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidence of human depravity which the trial must necessarily bring to light. The requirement of a public trial is necessarily for the benefit of the accused, that the public may see that he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is permitted to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.” See also Bishop’s New Crim. Proc. §§957-959. All the courts in those States whose constitutions provide for public trials agree upon the proposition that the defendant may insist upon the trial being absolutely open and public, except in so far as there is some good reason for excluding certain persons or certain classes; in which event these, and these only, may be excluded. It is generally recognized that a person
In Grimmett v. State, 22 Tex. App. 36 (2 S. W. 631, 58 Am. Rep. 630), the spectators in a case in which a female witness was testifying became so boisterous with laughter as to interfere with the court and to confuse the witness; and the action of the’judge in ordering them removed from the court-room was upheld by the appellate court. In that ease, however, attorneys disconnected with the ease and jurors not in the box, etc., were not included in the judge’s order, as in the present case, but only the general spectators. In State v. Callahan, 100 Minn. 63 (110 N. W. 342), the prosecutrix in a rape ease, after a long public examination .as to. the details of the crime, became so embarrassed by the presence of' the crowd that the judge ordered the spectators to leave the room temporarily; and, by a divided Supreme Court, this was held to be no abuse of discretion. In People v. Kerrigan, 73 Cal. 222 (14 Pac. 849), the defendant became unmanageable and began to use profane and abusive language to the judge and officers of court. Her conduct created such commotion among the spectators that the trial could not proceed until they were sent from the room. It was held that, as it did not appear that the judge had gone any further than was necessary to preserve decorum, in the absence of any showing of injury to the defendant, his action would not be held to be illegal. In Stone v. People, 3 Ill. 326, there was considerable noise and confusion on the outside of the court-room. The judge ordered the doors temporarily locked, but an officer was stationed at the door, with a key, to let any who wished to do soi pass and repass. The trial was held to be public. In Lide v. State, 133 Ala. 63 (31 So. 953), it was held that where the spectators began to applaud the argument of the State’s counsel and the court ordered the offending persons removed, the court’s action was for the benefit of the defendant, and he could not successfully complain. In State v. McCool, 34 Kan. 617 (9 Pac. 745), it was held proper for the judge to exclude all women from the court-room* where one of the attorneys in the ease informed the court that he was about to refer to certain evidence which he could not decently discuss in their presence. In State v. Brooks, 92 Mo. 542 (5 S. W.
In the Georgia case of Myers v. State, 97 Ga. 77 (25 S. E. 252), it was held that “while every person accused of crime is entitled to a public trial, it is not necessary to its legality that a great multitude should be in attendance, and the presiding judge should not permit the bar or court-room to become so crowded as to impede the progress of the trial by rendering it difficult for the jurors to enter or leave the box, or by preventing the free movement of counsel and witnesses; moreover, the jury should not be in such close and constant contact with the audience as that remarks of (bystanders as to the guilt or innocence of the accused, or other indications of public feeling for or against him, may reach their ■ ears or come under their observation. The bar at least should at all times be kept sufficiently open and clear for the prompt and • orderly dispatch of the business of the court.” However, an examination of the facts in that case will show that the exception was ;not to the action of the judge in excluding the spectators who overicrowded the room, but to his refusal to exclude them.
•On the other side of the question, no other court has gone quite b'o far as the Supreme Court of Michigan. In the case of People v. Murray, 89 Mich. 276 (14 L. R. A. 809, 28 Am. St. Rep. 294, 50 N. W. 995), it was held, that “The constitutional right to a 'public trial’ in a criminal ease is violated by an order of the court to a police officer stationed at the door of the court-room to 'see that the room is not overcrowded, but that all respectable citizens be admitted and have an opportunity to get in whenever they shall apply,’ where it is shown -that citizens and taxpayers were excluded by such officers while the seats provided for spectators were not all occupied.” Subsequently to the rendition of this decision a statute was passed allowing “the judge in certain cases to exclude “every person except those necessarily in attendance” upon the trial. In People v. Yeager, 113 Mich. 228 (71 N. W.
The eases of Benedict v. People, 23 Colo. 126 (46 Pac. 637), and People v. Swafford, 65 Cal. 223 (3 Pac. 809), cited by counsel for the State, are not in point. These cases merely hold that a new trial should not be granted because the trial court excluded, persons from the court-room, where the defendant made no objection or where he consented to the order. Nor are the New York cases in point. The only provision in that State as to the. publicity of trials is statutory, and contains express exceptions allowing the exclusion of the public in certain cases.
Unquestionably the whole trend of American authority is to-the effect that, while the trial judge may, for special causes, exclude any or even all of the spectators from the court-room, yet-that he can not make the order of exclusion extend further than the special causes warrant in the particular instance. A sweeping order such as the one sub judiee has never been sustained, so-far as we can find. To say that the judge may lawfully exclude, from the trial all persons except those connected with the case,, the defendant, his attorney, the witnesses, and the officers of court,. —to say the accused can be forced to trial thus without the presence-of friend or family, is to say that the constitutional guaranty of a public trial is an empty promise, — is to say that the guaranty adds nothing at all to what had already been guaranteed him by other provisions of the bill of rights. The right of counsel would, give him the presence of his attorney; the right to be confronted by the witnesses would give him the benefit of their presence; the right of trial by jury would give him the benefit of the presence; of the twelve men in the box; and besides these, who else would be left to witness the trial, save the prosecutor, the State’s counsel, the judge, and the officers of court, persons absolutely necessary to the carrying on of any trial at all? How differs this from the secrecy of the Star-Chamber?
An unreasonable exclusion of the public, over the objection of the accused, is conclusively presumed to be hurtful to him. People v. Hartman, People v. Murray, State v. Hensley, supra. In. the present ease there is a strong probability that the accused suffered actual prejudice. He stood charged with fornication and adultery, committed with his wife’s fourteen-year-old sister; and.
