Hogan v. State

• Decision Date: 14 October 1935
• Docket Number: Crim. 3954
• Parties: HOGAN v. STATE
• Court: Arkansas Supreme Court

86 S.W.2d 931

191 Ark. 437

HOGAN v. STATE

Crim. 3954

Supreme Court of Arkansas

October 14, 1935

Appeal from Sebastian Circuit Court, Ft. Smith District; J. Sam Wood, Judge; judgment modified.

George Hogan was convicted of rape and has appealed.

Judgment affirmed.

Paul E. Gutensohn and George W. Dodd, for appellant.

Carl E. Bailey, Attorney General, and Guy E Williams, Assistant, for appellee.

OPINION

MCHANEY, J.

Appellant was tried and convicted of the crime of rape, committed on a ten-year-old girl, and sentenced to death by electrocution. Inasmuch as the sufficiency of the evidence to support the verdict and judgment against him is not brought into question, and the details thereof are so revolting, we deem it unnecessary to set out the facts as given in evidence, for it would serve no useful purpose so to do. Suffice it to say that the evidence overwhelmingly supports the verdict of the jury, and the judgment of the court based thereon.

Several assignments of error are urged for a reversal of the judgment and sentence against appellant, but we do not think it necessary to discuss them all. One of the alleged errors so urged for our consideration relates to the action of the trial court in excluding the public from the courtroom for about ten minutes during the examination of the little girl who was the victim of appellant's fiendish passions. This assignment is based upon article 6 of the amendments to the Constitution of the United States, and a like provision contained in article 2, § 10, of the Constitution of this State, both of which provide: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial."

The trial began on April 15th, and on that date the prosecuting witness had been put upon the stand to testify on behalf of the State against appellant. She made a very unsatisfactory witness. After the State had closed its case and appellant had testified in his own behalf on said date, court adjourned to the following morning, at which time the prosecuting attorney requested the court for permission to recall the little girl for further examination, and for an order to clear the court room while she testified. Whereupon the court made the following statement: "The court will grant the request of the prosecuting attorney because it was apparent to the court that the prosecuting witness was frightened and embarrassed at the time she was called upon to testify yesterday; that there was a very large crowd in the courtroom at the time; and at this time the courtroom will be cleared of every person in here except the jury for ten minutes." Appellant objected to the exclusion of the public from the courtroom on the ground that he was entitled to a public trial under the above constitutional provisions, and that the order of the court clearing the courtroom was an invasion of his constitutional right to a public trial. This objection was overruled, and an exception was taken. The prosecuting witness was then recalled and further examined, and gave very damaging testimony against appellant. We cannot agree that he was deprived of a public trial within the meaning of said constitutional provisions. It was apparent to the court and to every one else in the courtroom, and is apparent to us from a reading of her testimony given on the previous day, that she was terribly frightened and embarrassed to have to go upon the witness stand in the presence of a courtroom crowded with people and give testimony that must have been embarrassing and humiliating to her in a high degree. Under this situation she failed to give testimony which the court felt she could give if the embarrassment of the large audience in the courtroom were removed.

In 16 C. J., page 807, § 2052, it is said that it is within the discretion of the court to clear the courtroom where the court feels that it is necessary to do so "to secure the administration of justice, and to facilitate the proper conduct of the trial, as where the courtroom is crowded to such an extent as to interfere with the orderly administration of justice. It has also been held under some constitutional or statutory provisions, that in cases where the evidence is of a peculiarly indecent and vulgar character, the court may, in the interest of public morality and decency, exclude from the courtroom all persons except the jurors, witnesses, and others connected with the case, although there are decisions to the contrary."

In State v. Damm, (South Dakota), 62 S.D. 123, 252 N.W. 7, the defendant was charged with second degree rape committed upon his foster daughter, thirteen years old. She was a witness against him and, after being examined by the State for some time, she commenced to cry, and it was apparent that she was greatly embarrassed and emotionally disturbed. Upon motion of the State's attorney, the court cleared the courtroom during the remainder of her testimony, and this was assigned as error on appeal. The court in overruling the assignment said: "How far, for how long, and to what extent the public may be excluded from a trial of a criminal case without infringing upon the constitutional right of the defendant is a matter of some conflict in the authorities. Cf. Cooley's Constitutional Limitations, (8th Ed.) p. 647; State v. Callahan, (1907) 100 Minn. 63, 110 N.W. 342; Reagan v. U. S, (1913) 202 F. 488, 120 C. C. A. 627, 44 L. R. A. (N. S.) 583; Moore v. State, (1921) 151 Ga. 648, 108 S.E. 47; State v. Saale, (1925) 308 Mo. 573, 274 S.W. 393; State v. Bonza, (1928) 72 Utah 177, 269 P. 480. In the instant case, it is to be observed that appellant made no request to have any specific person or persons or his friends exempted from the effect of the exclusion order. The order was effective only during the testimony of the prosecutrix. In view of the nature of the case and the ago of the prosecutrix, her embarrassment and disturbance are readily understandable. Under all of the circumstances here appearing, we do not think the court abused its discretion or committed prejudicial error by its ruling, or deprived appellant of a public trial within the meaning of the constitutional provisions."

There are a number of cases on the subject, and the authorities are divided on the question now presented. We think it would be a work of supererogation to undertake a review of them. So far as the diligence of counsel discloses or as we have been able to find, this court has never decided the question. We are of the opinion, however, that the South Dakota court in State v. Damm, supra, correctly held that the court room might be cleared for a short period of time in the interest of justice, and that such matter rests in the sound discretion of the trial court. We therefore hold in this case that the trial court did not abuse its discretion.

Another assignment of error urged for a reversal of the judgment is that the prosecuting witness was not a competent witness. On this question but little need be said in view of the disposition we...