State v. Bonza

• Decision Date: 05 July 1928
• Docket Number: 4645
• Citation: 269 P. 480,72 Utah 177
• Court: Utah Supreme Court
• Parties: STATE v. BONZA

269 P. 480

72 Utah 177

STATE v. BONZA

No. 4645

Supreme Court of Utah

July 5, 1928

Appeal from District Court, Seventh District, Carbon County; George Christensen, Judge.

John Bonza was convicted of rape and he appeals. Reversed and remanded, with directions to grant new trial.

Judgment reversed. Cause remanded with directions to grant a new trial.

King &amp King, of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

HANSEN J. THURMAN, C. J., and CHERRY, STRAUP, and GIDEON, JJ concur.

OPINION

HANSEN, J.

The defendant was convicted of the crime of rape and sentenced to serve an indeterminate term in the state prison. He appeals.

After the jury had been impaneled to try this cause counsel for defendant requested that an order be made excluding from the courtroom all of the witnesses except the one testifying. Thereupon the prosecuting attorney stated that the sister of the prosecutrix might become a witness and that if an order excluding the witnesses were made he desired that she be permitted to remain in the courtroom for the purpose of advising him during the course of the trial. After some discussion between the court and counsel the court ordered that all witnesses be excluded but the sister of the prosecutrix. Counsel for defendant objected and excepted to that part of the order permitting the sister of the prosecutrix to remain in the courtroom. The presiding judge then suggested that the spectators also be excluded. He called attention to the provision of Comp. Laws Utah 1917, sec. 1789, which reads as follows:

"In an action for 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; provided, that in any cause the court may, in its discretion, during the examination of a witness, exclude any and all other witnesses in the cause."

Counsel for defendant objected to the exclusion of the spectators and called attention to the Constitution of Utah, art. 1, § 12, which provides:

"In criminal prosecutions the accused shall have the right to appear and defend in person or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to be confronted by the witnesses against him, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and the right to appeal in all cases. In no instance shall any accused person, before final judgment, be compelled to advance money or fees to secure the rights herein guaranteed. The accused shall not be compelled to give evidence against himself; a wife shall not be compelled to testify against her husband, nor a husband against his wife, nor shall any person be twice put in jeopardy for the same offense."

Inquiry was then made if the state desired the exclusion of spectators. Upon being informed that the state was not requesting the exclusion of spectators, the presiding judge stated that he would not make an order excluding the spectators over the objection of counsel for defendant unless requested so to do by the district attorney. Thereupon the trial proceeded.

The prosecutrix was the first witness called. After she had given her testimony in chief and was being cross-examined by counsel for defendant it appears that she became hysterical. Her periodic spells of crying seem to have made it difficult to proceed with the trial. During one of these crying spells the district attorney asked that an order be made excluding the spectators from the courtroom. Thereupon the following order was made:

"All persons who are not directly interested in this case except jurors, witnesses that have already been sworn, except jurors and officers of the court will be requested to retire from the courtroom."

Counsel for defendant timely objected and excepted to the order. Defendant's counsel also requested that the order of exclusion include the sister of the prosecutrix. This request was refused, and counsel for defendant duly excepted. The district attorney then inquired "whether the order applied to jurors not serving in the present case," to which the presiding judge replied, "I rather think it had better apply." The order of exclusion continued until the conclusion of the evidence. The defendant testified that his father, his two sisters, a brother-in-law, a cousin, a cousin's wife, and an uncle and a number of friends were present in the courtroom when the order of exclusion was made. While the defendant was putting in his evidence the district attorney remarked: "I might advise your honor I have no desire, unless your honor deems it advisable, to have the order excluding disinterested persons from remaining in further force and effect. Of course the time has gone by when we desire to have the public excluded;" to which the trial judge replied: "If it is past and that is counsel's situation in that regard Mr. Anderson may come in." The record does not disclose anything about Mr. Anderson or why the order should not be applied to him. After the evidence had been concluded and the court's instructions read to the jury the trial judge inquired. "Is there now on the part of counsel on either side any objection to permitting the public who might desire to attend this session to come in?" The district attorney responded that there was no objection on the part of the state. Counsel for defendant responded, "The court heretofore excluded the public against the objections of the defendant at times when we insisted it was a violation of a constitutional right. I do not think the error can be cured or modified at this late date." Thereupon the trial court set aside the order of exclusion over timely objection and exception of defendant's counsel.

It is contended on behalf of the defendant that he was denied a public trial and therefore the judgment against him should be set aside. It is also urged that the trial court committed prejudicial error in permitting the sister of the prosecutrix to remain in the courtroom during the trial. The sister of the prosecutrix was not called as a witness.

We are of the opinion that the mere fact that the sister of the prosecutrix was permitted to remain in the courtroom does not entitle the defendant to a reversal of the judgment. The provisions of Comp. Laws Utah 1917, § 1789, grant to the trial court a discretion in the matter of excluding witnesses. The trial court may, in the exercise of a proper discretion, refuse to grant the request to exclude any witnesses or all witnesses. There is no absolute right to have witnesses excluded during the progress of a trial. In the instant case it appears that the district attorney desired the sister of the prosecutrix to remain in the courtroom to advise him during the course of the trial. Standing alone, no error was committed by permitting her to remain in the courtroom during the trial.

A more serious question is presented when we consider the claim that the defendant was denied a public trial as guaranteed to him by our Constitution. It will be observed that article 1, § 12, of our Constitution enumerates a number of rights guaranteed to a person accused of crime. It is elementary that the defendant was entitled to such a public trial as is contemplated by what is designated the declaration of rights in the Constitution of Utah. The right to a public trial is secured to an accused person the same as are the rights to appear and defend in person or by counsel, to demand the nature and cause of the accusation against him, to be confronted by witnesses against him, to have a trial by an impartial jury, to not be required to give evidence against himself and the other constitutional rights which are so fundamental in our system of criminal procedure. It is of primary importance to determine what is meant by a public trial as provided for in our state Constitution. Having once determined what constitutes a public trial as contemplated by our state Constitution the provisions of Comp. Laws Utah 1917, § 1789, must of necessity give way to the kind of trial provided for in the Constitution. In determining what is meant by a public trial recourse must be had to the common law as it existed at the time the Constitution was adopted. A statement of the requisites necessary to make a trial public frequently quoted with approval by courts of last resort is contained in 1 Cooley's Constitutional Limitations, Eighth Edition, p. 647. It is there said:

"It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion...