State v. Beckstead
| Decision Date | 18 March 1939 |
| Docket Number | 6008 |
| Citation | 88 P.2d 461,96 Utah 528 |
| Court | Utah Supreme Court |
| Parties | STATE v. BECKSTEAD |
Appeal from District Court, Third District, Salt Lake County; H. M Schiller, Judge.
Donald James Beckstead was tried on a charge of carnally knowing a female between the ages of 13 and 18 years, and from the judgment, he appeals.
REVERSED AND REMANDED WITH DIRECTIONS.
R Verne McCullough and Clifford L. Ashton, both of Salt Lake City, for appellant.
Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.
OPINION
Of the errors assigned on this appeal, Defendant and Appellant argues three. They are: (a) The court erred in excluding the public from the court room; (b) denial of motion for a new trial; and (c) refusal to give a requested instruction.
The pertinent facts are that after the jury was sworn, and the information read including Defendant's plea of not guilty, a motion was made on behalf of the State to exclude spectators from the court room. Objection was made. Over objection, the court made the following order:
The Defendant and Appellant, Donald James Beckstead, was on trial in the District Court of the Third Judicial District of the State of Utah, charged with the crime of carnally and unlawfully knowing a female over the age of thirteen years and under the age of eighteen years.
No question is raised as to the sufficiency of the evidence in the motion for a new trial or otherwise. The detailed facts or matters of evidence are immaterial in so far as the issues presented in this Court are concerned.
The error complained of in the exclusion order may seem technical. It is, however, fundamental. We are of the opinion that the order excluding all spectators including friends and relatives of the Defendant was error. The Constitution of this State, Sec. 12, Article 1, provides, among other things, that in criminal prosecutions the accused shall have the right to a speedy public trial. That section is discussed in a case similar to the instant case in State v. Jordan, 57 Utah 612, 196 P. 565; also State v. Bonza, 72 Utah 177, 269 P. 480; State v. Smith, 90 Utah 482, 62 P.2d 1110, and cases cited therein. In the cases first cited, what constitutes a public trial is considered as well as a reference to Cooley's Constitutional Limitations. In all of those references, it is laid down as requisite that in a criminal prosecution the trial must be public. The order in the instant case deprived the Defendant of a public trial within the meaning of Section 12 of Article 1 of the Constitution of Utah.
In the case of State v. Smith, supra, it is said that the order made was not as drastic as the orders condemned in the cases of State V. Bonza and State V. Jordan. In the Jordan case after quoting Sections 1788 and 1789, C. L. Utah 1917, which have now become Sections 20-7-1 and 20-7-2, R. S. U. 1933, with the change of the word "provided" to the word "and" in the last clause of the latter section, the Court said:
After discussing the reasons for and importance of the constitutional provision, it is said:
The court did not directly pass upon the question as to whether the statutes referred to gave the court power to exclude the public or any part of the public. Certain statements would seem to imply that such was the case. As hereinafter indicated, we think the doctrine of those cases must be limited. In criminal causes the constitution neither classifies nor limits the public in its right to attend criminal prosecutions.
Were it not for the fact that two other matters were considered by the trial court and counsel in addition to the exclusion of spectators, the cause could well rest without further discussion. The statements made by the court and objections of counsel at the time of the making of the order excluding all spectators indicate they also had in mind Sections 20-7-1 and 20-7-2, R. S. U. 1933, which read:
Sec. 20-7-1. "The sittings of every court of justice are public, except as provided in the next section.
Sec. 20-7-2. "In an action of divorce, criminal conversation, seduction, abortion, rape, or assault with intent to commit rape, the court may, in its discretion, exclude all persons who are not directly interested therein, except jurors, witnesses and officers of the court; and in any cause the court may, in its discretion, during the examination of a witness exclude any and all other witnesses in the cause."
It will be observed that the part of the latter section just quoted down to the semicolon following the word "court" must relate to civil actions. All of them except "divorce" are actions in tort for which recovery of damages may be had and cannot refer to criminal prosecutions without conflicting with the constitution. That part of the section following the semicolon, relates to "any cause" but in the discretion of the court "any cause" relates only to the exclusion of "any and all other witnesses in the cause," and only during the examination of a witness. This is what we think was intended by the legislature and avoids any constitutional conflict.
From statements found in the record, the court seems to have been under the impression that that part of the statute relating to criminal conversation, etc., referred to criminal prosecutions and included carnally and unlawfully knowing a female over 13 and under 18 years of age. The reference in the statute to "criminal conversation" does not either refer to nor include what is commonly referred to as carnal knowledge, and if it does not apply in a criminal trial.
Webster's New International Dictionary defines "criminal conversation" as being, "unlawful intercourse with a married woman" (considered as a tort)--a suit for damages by the injured husband against the adulterer. 1 Bouv. Law Dict., Rawle's Third Rev., p. 728, defines criminal conversation to be "adultery; unlawful sexual intercourse with a married woman," and further states: "The term is used to denote the act of adultery in a suit brought by the husband of a married woman with whom the act was committed to recover damages against the adulterer." Cases are cited substantiating such definition.
The expression "criminal conversation" as used in the section of the statute under consideration does not include carnal knowledge as used in the criminal code, and if it did it would not warrant the order excluding the public from attendance at the trial.
The fact that the order was later modified by advising relatives that they might return and the further fact that some of them did return could not affect the consequences of the error. The original order was carried out during a portion of the trial.
The refusal of the court to give the instruction requested and excepted to by Defendant was not error. Much of the language contained in the instruction is found in a statement of an admonitory character in the case of State v. Hilberg, 22 Utah 27, 61 P. 215. The language there used had no reference to an instruction to a jury either requested or given. Some of the language is in the nature of a lecture upon the circumstances and conditions surrounding such acts and the difficulties of disproving them and the hardships that such difficulties present. There was no error in refusing the instruction as asked.
The order excluding all spectators was error and deprived the Defendant of a constitutional right to have a public trial.
The judgment is reversed and the cause is remanded to the trial court with directions to grant the Defendant a new trial.
I concur fully in what is said in the opinion of Mr. Chief Justice MOFFAT, but in view of the fact that a majority of the court, while concurring in the results, do so upon grounds which to my mind are not only unsound but set at naught the express provisions of the Constitution of the State, I feel impelled to point out what to my mind makes such reasoning specious. The majority of the court subscribe to the doctrine that in the trial of any criminal cause the court may exclude from the courtroom everyone except the officers of the court, counsel, the witness testifying, defendant and a reasonable number of relatives or friends whom he may select to have remain. In the practical application of this rule I am wondering whether the court or the defendant shall determine how many relatives or friends constitute a reasonable number who may be permitted to remain. And if defendant selects fifteen may the court say, "You must cut that number down to five"? And how will the court compel him to select between his brother or sister on the one hand and his...
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