Sallie v. State

• Decision Date: 25 November 1929
• Docket Number: 28195
• Citation: 155 Miss. 547,124 So. 650
• Court: Mississippi Supreme Court
• Parties: SALLIE et al. v. STATE

124 So. 650

155 Miss. 547

SALLIE et al. v. STATE

No. 28195

Supreme Court of Mississippi

November 25, 1929

Division B

Suggestion of Error Overruled Jan. 6, 1930.

APPEAL from circuit court of Bolivar county, Second district, HON W. A. ALCORN, JR., Judge.

J. Y Sallie and another were convicted for an attempt to rape, and they appeal. Affirmed.

Judgment affirmed.

Valentine & Valentine, of Cleveland, for appellants.

The exclusion of the public from the courtroom during the trial of this case was a sweeping denial of the constitutional rights of the accused to a public trial.

1 Bishop's Criminal Procedure, sec. 957.

The last clause of section 267 of Constitution of 1890, is manifestly an abridgment of the rights of the accused, limited in express terms to certain cases there specified. It means what it says in plain terms and requires no construction.

Newell v. People, 7 N.Y. 97; State v. Henry, 87 Miss. 125; Thompson v. Grand Gulf Railroad & Banking Co., 3 How. 240; Hawkins v. Board of Supervisors of Carroll County, 50 Miss. 735; Woessner v. Bulock, 176 Ind. 166, 93 N.E. 1057; 12 C. J., p. 702, sec. 45; Scott v. Sanford, 19 How. (U.S.) 393, 15 L.Ed. 691; Cooley Const. Lim. (6 Ed.), 87; Greencastle v. Black, 5 Ind. 566; 12 C. J., p. 703, sec. 46; State v. Dircks, 211 Mo. 568, 111 S.W. 1; 12 C. J., p. 707, sec. 54; 12 C. J., p. 790, sec. 57; Connor v. Gray, 88 Miss. 489; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; McCool v. State (Miss.), 115 So. 121; Carter v. State, 99 Miss. 435, 54 So. 734.

The appellant did not have a public trial and this constitutional provision guaranteeing them a public trial could not be waived by them or any other person.

Cooley on Constitutional Limitations (6 Ed.), sec. 379; People v. Murray, 89 Mich. 276, 50 N.W. 995, 28 Am. St. Rep. 294; Hill v. People, 16 Mich. 351; State v. Hensley, 77 Ohio St. 255, 79 N.E. 462, 116 Am. St. Rep. 734; People v. Hartman, 103 Cal. 242, 42 Am. St. Rep. 108; State v. Osborne, 54 Ore. 289, 103 P. 62, 20 Ann. Cas. 627; People v. Yeager, 113 Mich. 228, 71 N.W. 491; Davis v. United States, 247 F. Rep. 394; State v. Keeler, 156 P. 1080, 52 Mont. 205, L.R.A. 1916E. 472; People v. Greeson, 203 N.W. 141, 230 Mich. 124; Rhodes v. State, 169 N.W. 433, 102 Neb. 750; State v. Jordan, 196 P. 565, 57 Utah 612; Tilton v. State, 63 S.E. 651, 5 Ga.App. 59; Wade v. State, 207 Ala. 1, 92 So. 101; Steward v. State, 18 Ala.App. 622, 93 So. 274.

Forrest B. Jackson, Assistant Attorney-General, for the state.

Section 26 of the Mississippi Constitution of 1890, guarantees the accused a public trial, but this does not mean that every person who sees fit may attend the trial. This section gives the trial court the right to exclude persons in its discretion, in a case of an attempt to commit one of the named exceptions as well as when the defendant is charged with the crime itself.

Ethridge, Mississippi Constitutions, page 135; Cooley's Constitutional Limitations (7 Ed.), p. 441; Carter v. State, 99 Miss. 435, 54 So. 734; Fisher v. State, 145 Miss. 116, 110 So. 361; Dutton v. State, 91 A. 417, 123 Md. 373, Ann. Cas. 1916C. 89; Benedict v. People, 46 P. 637, 23 Col. 126; People v. Hall, 64 N.Y.S. 433, 51 A.D. (N.Y.) 57, 15 N.Y. C. (R. H.) 29.

Argued orally by W. W. Simmons, for appellant, and by Forrest B. Jackson, Assistant Attorney-General, for appellee.

OPINION

Ethridge, P. J.

The appellants were indicted, tried, and convicted for an attempt to rape one May Dobbins forcibly and against her consent, under section 1151 of Hemingway's Code of 1927 (section 1359, Code of 1906). On conviction they were sentenced to serve ten years in the state penitentiary, from which judgment they appeal here.

The first assignment of error is that the evidence is insufficient to sustain the conviction. We have carefully examined the evidence contained in the record, and think it is sufficient to establish the offense, and deem it unnecessary to set out the facts relating to the offense, as they are very salacious and obscene and would serve no public good.

It is next assigned that the court erred in excluding the general public from the trial. When the cause came on for trial, the district attorney moved the court to exclude from the courtroom all persons not necessary to the conduct of the trial on account of the nature of the evidence that would be required in the case by the prosecuting witnesses, two young ladies. The court sustained this motion over the objection and exception of the appellants. Section 26 of the State Constitution 1890 reads as follows:

"In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecutions for rape, adultery, fornication, sodomy or the crime against nature the court may in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial."

It is the contention of the appellants that the naming of the offenses or trials at which the court may, in its discretion, exclude persons from the courtroom or pronounce not necessary to the trial, precludes the operation of the rule of exclusion in the present case, under the rule that, where the Constitution enumerates certain things that it is presumed to have enumerated all of the things to be included in the exception. The rule is as stated, and the court will not ingraft exceptions upon it, and it remains to be determined whether the appellants could be tried and convicted of the offense for which they were convicted under an indictment charging them with rape. If so, it would come within the express rule of exclusion, for it is what may be done under an indictment charging an offense within the exception; that is, in cases in which the court may, in its discretion, exclude persons where the case falls within that principle. By section 1320, Hemingway's 1927 Code (section 1499, Code of 1906), it is provided:

"On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose."

Under this section the indictment for rape includes a charge of an attempt to commit the offense as well as the commission of the principal offense, and it necessarily follows that on a charge of rape the court could try and convict the defendant of an...