Ex parte Wade

• Decision Date: 25 February 1922
• Docket Number: 6 Div. 611.
• Citation: 92 So. 104,207 Ala. 241
• Court: Alabama Supreme Court
• Parties: EX PARTE WADE. v. STATE. WADE

92 So. 104

207 Ala. 241

EX PARTE WADE.

WADE v. STATE.

6 Div. 611.

Supreme Court of Alabama

February 25, 1922

Certiorari to Court of Appeals.

Charlie Wade was convicted of mayhem, the judgment of conviction affirmed by the Court of Appeals (92 So. 97), and he brings certiorari. Writ granted, judgment reversed, and cause remanded, with directions to reverse the judgment of the circuit court and remand the cause thereto.

For opinion on former application for certiorari, see 92 So. 101.

Sayre and Gardner, JJ., dissenting.

Beddow & Ordendorfer, Roderick Beddow, and Ben F. Ray, all of Birmingham, for petitioner.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

McCLELLAN J.

This petition is Wade's second application to this court for the writ of certiorari to the Court of Appeals in the cause of Charlie Wade v. State. The offense charged is mayhem. The first application was granted November 6, 1921, reversing the Court of Appeals' judgment of affirmance then under review. The opinion of this court is reported as Wade v State, 92 So. 101. In construction of the provisions of section 6 of the Constitution of 1901 (assuring accused persons of the class to which petitioner belonged a "public trial"), and in construction of section 169 of the Constitution of 1901 (whereby our courts are vested with an exceptional discretion, in cases of rape and assault with intent to rape, to exclude from the courtroom all persons except such as may be necessary in the conduct of the trial), it was decided, and reaffirmed in response to application for rehearing, that Wade had been denied, in the trial court, the "public trial" assured by the Constitution-the crime for which he was on trial being mayhem, and not within the limited and exclusive exceptions defined in section 169 of the Constitution-and that his failure or omission to object, at the time or during the trial, to the order or action of the court to be later reproduced in this opinion did not operate as a waiver by him of the error resulting from the denial of the constitutionally assured right (sections 6, 169) to a "public trial." It was then pronounced, also, and so with obvious soundness, that the constitutional right to a "public trial" was not-could not be-subordinate or subordinated to individual or even juristic conceptions of decency or propriety; and, hence, under the plain, mandatory effect of our Constitution (sections 6, 169), no possible argument or conclusion could be soundly predicated of such conceptions, however worthily inspired. Under the familiar doctrine expressed in the maxim exclusio unius exclusio alterius, the conclusion is inevitable that the makers of the Constitution intended no other exceptions than those enumerated in section 169 that notions of morality and propriety, however laudable, might suggest. The framers of our several Constitutions were familiar with the odious public evil that had previously affected the English people before "public trials," as distinguished from secretly exercised judicial processes, were assured in that kingdom, and, like practically all makers of Constitutions in this country, the framers of every one of Alabama's organic laws expressly provided "that all courts shall be open" (Const. 1901, § 13), and that "in all prosecutions by indictment" the accused should have "public trial," as that constitutional guaranty was defined in the former opinion of this court, subject to the exclusive exceptions, in cases of rape or assault with intent to rape, created by section 169 of the present Constitution.

Undoubtedly the framers of the Constitution of 1901 contrasted the historically impressive evil that gave rise and motive to mandatory constitutional provisions for "public trials," for "open" courts, with the probability that at such "public trials" matters shocking to normal sensibilities would, upon occasion, be the subjects of public inquiry and discussion and thereupon deliberately restricted the exceptions to those defined in section 169 to prosecutions for rape and assault with intent to rape-exceptions that cannot be enlarged by the Legislature or expanded by the courts. Evidently the framers of the Constitution conceived that the necessity for the "public trials" required by the organic law (sections 6, 169) was more important, more vital to the welfare and to the safety of the people of the state, than the possibility or probability that, upon occasions other than those stated in section 169, morals might be shocked or impaired through the voluntary attendance of the idle and morbidly curious upon "public trials" where matters of a salacious character were involved. Had the Constitution's purpose been to invest courts with a discretion in other cases than rape or assault with intent to rape, that design would not have been left unstated.

As was observed in the...