State v. Jordan
| Decision Date | 14 March 1921 |
| Docket Number | 3551 |
| Court | Utah Supreme Court |
| Parties | STATE v. JORDAN |
Appeal from District Court, Second District, Davis County; A. E Pratt, Judge.
George Ernest Jordan was convicted of statutory rape, and he appeals.
JUDGEMENT ENTERED UPON THE CONVICTION VACATED AND SET ASIDE AND NEW TRIAL GRANTED.
George Halverson, of Ogden, for appellant.
Harvey Cluff, Atty. Gen., and Wm. A. Hilton, Asst. Atty. Gen., for the State.
The defendant, George Ernest Jordan, was convicted in the district court of Davis county of the crime of having carnal knowledge of the body of one Lucy Steed, a female over the age of 13 and under the age of 18 years. He appeals from the judgment entered upon said conviction and relies upon the following assignments of errors as grounds for reversal: (1) The exclusion of the public from the courtroom during the trial. (2) The admission and rejection of certain testimony over defendant's objections. (3) The refusal of the court to charge the jury as requested by defendant. (4) The denial of defendant's motion for a new trial.
After the jury had been impaneled and sworn, and before further proceedings were had in the trial of the case, the trial court ordered that "All persons will be excluded from the courtroom during the trial, except those connected with the case, exclusive of witnesses." Thereupon counsel for defendant asked for a public trial, when the court remarked: "The court in such a case as this may exclude the public, and the court has excluded the public in this case." It further appears that before proceeding with the trial the witnesses in the case were called, sworn, and admonished, and then excluded. No complaint is made of that. However, upon motion of the district attorney, the prosecutrix and her father, who was not a witness, were permitted to remain in the courtroom during the progress of the trial, when counsel for defendant again called the court's attention to the fact that "every friend and relative of the defendant have been excluded from the courtroom, including his mother, and the father of the prosecuting witness has been permitted to stay here all the while." The record further shows that at all times the defendant's counsel insisted that the defendant was being denied the constitutional right to a public trial, and duly excepted to the rulings of the court.
It is among other things, provided by section 12, art. 1, of our state Constitution, that "in criminal prosecutions the accused shall have the right * * * to have a speedy public trial." Comp. Laws Utah 1917, § 1788, provides: "The sittings of every court of justice are public, except as provided" in section 1789, which reads: "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." Apparently the ruling of the trial court excluding the public in the present case was predicated on the foregoing provision of our statutes. It will be observed, however, that the statutes referred to does not expressly mention the crime of having carnal knowledge, now under consideration. The defendant contends that if such crime may be included by implication the foregoing provisions of the statute are in direct contravention of the rights guaranteed to the defendant by the provisions of the Constitution above referred to. Similar provisions guaranteeing a public trial to the criminally accused are to be found in most, if not all, of the Constitutions of the several states of the Union. The right evolved out of the early history of the law when the courts of England, as well as in our own country prior to our Revolutionary War, refused to permit the accused, in many instances, to be publicly tried. The flagrant abuse of the courts of that early time undoubtedly impressed upon the founders of our form of government, both national and state, the necessity of making provision in our fundamental laws that all persons accused with the commission of public crime shall have a public trial. As to what constitutes a public trial in a given case has given rise to much legal discussion, and upon that important question the decisions of the courts are not altogether harmonious. It may be said, however, that this constitutional right has been jealously guarded and adhered to by both the federal and the state courts. Aside from the inherent power of every court, in rare instances, to exclude a part of the public, as in such extreme cases where its presence would interfere with the due and orderly procedure in the progress of the trial, or where the testimony is of such a character as to shock the sense of decency or tend to degrade the public morals, more especially those of the young, the exclusion of the public should be, and generally is, held to be violative of the constitutional rights of the accused. But it is contended on the part of the state that in the present case it is not shown that the defendant suffered any prejudice by reason of the court's order complained of, and, further, that the court was justified in excluding the public by reason of the provision of our statute (section 1789) above quoted and referred to. We are not prepared to say that the defendant in the instant case suffered no prejudice. It must be kept in mind that the order of the trial court was very comprehensive in terms. The court excluded not only a part of the public, for sufficient reasons shown, but "all persons." As we read and interpret the language of the court's order, it in effect practically excluded the entire public; in fact, the court expressly so stated that to be his intention. Conceding, as we must, that the court acted with the best of motives, believing that the trial would proceed without the presence of spectators in a way best calculated to preserve and protect the interests of the general public and without unfairness to the accused, yet it would seem that the court's ruling in that regard, as made, was not altogether in keeping with the spirit of our Constitution, and the fundamental right, to be accorded the criminally accused in all cases, of a public trial. In so far as section 1789 of our statute may conflict with the right to a public trial before an impartial jury, the statute must give way and the right be not denied. That will be conceded. It would seem in this case that not only the general public was excluded but also the mother of the accused. We cannot conceive of a case, no matter how revolting and disgusting the details of the testimony given, in which the near relatives and friends of the accused should not be permitted to be in attendance upon the trial for...
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...N.Y. 56, 123 N.E.2d 769, 774 (Ct.App.1954)--a public trial must include not only friends, but also other persons; State v. Jordan, 57 Utah 612, 196 P. 565, 567 (Sup.Ct.1921). However, in the present case we must have regard for the judge's order calling on the sergeant-at-arms to clear the ......
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