92 So. 101 | Ala. | 1921
Lead Opinion
Section 6 of the Constitution of Alabama is practically taken from the Constitution of the United States, and among other things provides "that * * * in all prosecutions by indictment" the accused has a right to "a speedy public trial by an impartial jury of the county or district in which the offense was committed." As to the right of the trial court to exclude certain spectators during the trial or all persons other than those actually engaged or interested in the trial, the courts are divided. Some hold that this constitutional guaranty is violated by an exclusion of any part of the public; others that for good cause the trial court can exclude certain persons or a portion of the public, and that the trial would still be a public one within the meaning of this constitutional provision so long as the attendants were not confined to those engaged or interested in the trial and the relatives of the parties. There is still another line of cases which seem to indicate that trial courts may brush aside or subordinate this constitutional provision to what they may deem is demanded by the rules of society and decency, and may exclude all spectators or persons other than those engaged or interested in the trial. For cases on this subject, see 16 C. J. p. 807, § 2052 and notes; State v. Nyhus,
"In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial."
To hold that the trial court could exclude the public generally in cases not mentioned in section 169 of the Constitution would, in effect, emasculate said section, and convict the framers of our present Constitution of a vain and useless act in the insertion and adoption of said section.
It is an elementary rule that, if possible, effect should be given to every part and every word in Constitutions, as well as statutes, unless there is some clear reason to the contrary; and no portion of the fundamental law should be treated as superflous. Hence, as a general rule, the court should avoid a construction which renders provisions meaningless or inoperative. 6 Rawle C. L. p. 48; 12 C. J. 699; State v. Skeggs,
We also hold that the words "public trial" mean trials as usually and generally conducted, where the courthouse is open to practically any one who may wish to attend, and do not mean one where the public is so generally excluded as to confine the attendants to those engaged and interested in the trial and the relatives of the parties. We, of course, do not wish to go to the extent of some of the courts by intimating that in no instance could the trial court exclude or restrict portions of the crowd. For instance, children of tender age, or where the courthouse is crowded, an order could no doubt be made keeping the crowd within reasonable *3 bounds by excluding some or forbidding the entrance of others; as this could be done and still sufficient attendants or spectators be present to render the trial a public one within the requirement of section 6 of the Constitution; but not upon the theory, as expressed in the opinion of the Court of Appeals and certain cases there cited, that this constitutional provision should yield to the rules of society, decency, and propriety. The exclusion in the case at bar prevented the trial from being such a public one as is contemplated by section 6, and deprived the accused of a constitutional right thereby guaranteed.
The case of Jackson v. Mobley,
While the affirmance of the trial court is not rested upon a waiver by the defendant to raise this question upon appeal, the Court of Appeals does state that the defendant did not object or except to the order of the trial court, and urges the question for the first time on appeal. The statement of the Court of Appeals that the defendant did not object or except to the order of exclusion at the time it was made is correct; but the record discloses that this question was presented and raised in the lower court by a motion for new trial.
We do not think that the defendant had to object at the trial to the denial to him of this constitutional right, which affirmatively appears upon the record sent to the Court of Appeals — no more so than if the record disclosed that he had been deprived of other guaranties under section 6 of the Constitution — as he was charged with and convicted of a felony, and it is questionable whether or not he could have expressly waived these rights, to say nothing of an implied waiver. Hopt v. Utah,
It results from this holding that the opinion of the Court of Appeals is unsound, as well as the case of Clemons v. State,
The case of Lide v. State,
The writ of certiorari is awarded; the judgment of the Court of Appeals is reversed, and the cause is remanded to that court for the further disposition of the case in conformity with this opinion.
Writ awarded; reversed and remanded.
McCLELLAN, SOMERVILLE, THOMAS, and MILLER, JJ., concur in the opinion and conclusion.
SAYRE, J., agrees with the treatment of the constitutional question and, therefore, that the trial court erred in the order of exclusion, but thinks that the writ should be denied because of a failure of the defendant to object and except to the order when made, and dissents.
GARDNER, J., agrees with SAYRE, J., that the point was waived, and that the writ should be denied upon that ground, and dissents, and thinks it unnecessary to decide the constitutional question.
Addendum
Counsel for movant seem to attach considerable importance to the allusion in the opinion to the fact that this point was raised by a motion for new trial, and that, as the Court of Appeals had stated that it was waived, we are reviewing said court upon a finding of fact. A careful consideration of the opinion will disclose *4 that the allusion to the new trial was merely to give accuracy to the entire record. The question was raised by a motion for new trial, and not for the first time in the Court of Appeals. Whether in time or manner as to put the trial court in error for refusing to grant the motion, or whether or not it could be invoked upon a motion for new trial, not having been objected to before hand, we do not and need not decide, as an examination of the opinion will disclose that this court had held that this constitutional provision was not and could not have been waived; that it was like unto the right to trial by a jury in felony cases, and was unlike other questions and rights which could be waived. Again, the Court of Appeals did not base its conclusion upon a waiver, but upon the theory that the trial court had the right to exclude the crowd regardless of sections 6 and 169 of the Constitution, relying upon its Clemmons Case, which had been, in effect, approved by this court by a denial of the writ of certiorari. We did hold, however, and now hold, that the failure of the defendant to object to the action of the court in excluding the crowd was not a waiver of his constitutional right to a public trial. We think the Court of Appeals was wrong in the Clemmons Case, and that this court erred in approving it; and this opinion is intended to correct its own as well as the error of the Court of Appeals.
Application for rehearing overruled.
McCLELLAN, SOMERVILLE, THOMAS, and MILLER, JJ., concur.
SAYRE and GARDNER, JJ., dissent.
