State v. Nyhus

• Decision Date: 10 December 1909
• Citation: 124 N.W. 71,19 N.D. 326
• Parties: STATE v. NYHUS.
• Court: North Dakota Supreme Court

19 N.D. 326

124 N.W. 71

STATE

v.NYHUS.

Supreme Court of North Dakota.

Dec. 10, 1909.

Syllabus by the Court.

On a trial on a charge of rape, the making and enforcement of an order excluding all persons from the courtroom (after the jury was impaneled, and until the argument to the jury commenced) except “all jurors, officers of the court, including attorneys, litigants, and their attorneys, witnesses for both parties, and any other person or persons whom the several parties to the action may request to remain” does not deprive the defendant of a public trial within the statutory and constitutional provisions giving persons accused of crime the right to a “speedy and public trial.”

On a trial for the offense of rape, it is beyond the limits of proper cross-examination to permit the accused to be asked as to former arrests for other offenses, without the opportunity being given by the questions to answer as to whether he was guilty of the offense for which such former arrest or arrests were made. State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518, followed.

On a trial for the offense of rape, it is prejudicial misconduct for the attorney for the prosecution in addressing the jury, to urge a conviction “in view of the fact that you have before you two girls whose lives have been ruined by this defendant,” etc.

Such statement to the jury is not rendered harmless or not prejudicial by a general caution in the instructions to the jury that misstatement of the evidence by the attorneys should be disregarded, and the issue determined from the evidence alone.

Appeal from District Court, Steele County; C. A. Pollock, Judge.

Henry Nyhus was convicted of crime, and appeals. Reversed.Skulason & Burtness and Chas. A. Lyche, for appellant. A. Miller, Atty. Gen., and J. M. Johnson, State's Atty., for the State.

MORGAN, C. J.

Defendant was informed against by the state's attorney of Steele county for the crime of rape in the first degree, alleged to have been committed upon the person of a female under 14 years of age on the 20th day of August, 1908. The defendant plead “not guilty,” and, after a trial, the jury found him guilty of the offense charged. After making a motion for a new trial upon various grounds hereinafter to be noticed, the same was denied, and the defendant sentenced to imprisonment in the state penitentiary for a term of five years.

The grounds relied upon for a reversal of the judgment in this court are the following: (1) That he was deprived of a public trial by reason of the enforcement of an order of the court by which certain persons only could be present at the trial; (2) error in permitting the cross-examination of the defendant after objection to certain questions asked him concerning his having formerly been arrested, and being the father of another illegitimate child, and questions concerning his having paid a certain female money to avoid prosecution; (3) misconduct of the prosecuting attorney in stating to the jury that the defendant should be convicted “in view of the fact that you have before you two girls whose lives have been ruined by this defendant”; (4) insufficiency of the evidence to sustain the verdict.

The trial court, after a jury had been impaneled and sworn, made the following orders: “On motion of the state's attorney, it is ordered, in view of the nature of this case, it being what is commonly known as scandalous matter, that all persons be excluded from the room save and except the following named persons: All jurors, officers of the court, including attorneys, litigants, and their attorneys, witnesses for both parties, and any other person or persons whom the several parties to the action may request to remain.” The court had previously made an order excluding all witnesses from the courtroom until after they had been examined, except the witnesses for the defendant, who were permitted to be present during the progress of the state's case. The statement of the case shows that there was no objection to the order limiting the attendance of persons that were permitted to be present in the courtroom. It also appears in general terms “that the order was carried into effect and enforced” until the commencement of the arguments to the jury at the close of the testimony. The statement of the case also contains the following recital: “During the course of the trial several members of the bar were present from time to time, and one other person not included in the above order was also present part of the time by special invitation of the presiding judge.” The defendant contends that, by the making and enforcement of the above order, he was deprived of his constitutional right to a public trial. It is noticeable from a reading of the record, as above recited, that it does not appear that any person was excluded from or refused admittance to the courtroom who was within the terms of the order that was made, nor does it appear from the record that any one was refused admission to the courtroom except by an inference from the statement in the record that the order was enforced. It is not shown in any manner how many persons were admitted under the order, or how many were in attendance upon the trial, what was the seating capacity of the courtroom, and whether the seats were filled and the courtroom crowded or otherwise, does not appear. It does not appear how many jurors were in attendance at said term, nor how many witnesses, nor how many attorneys, nor how many litigants. It is not shown whether the defendant requested any one to be present, nor is it shown that he desired any one to be present, nor is it shown that any one was refused admittance, coming within any of the classes of persons that were permitted to attend. No restrictions were placed upon the number of persons that were permitted to remain at the request of the defendant.

It is contended in the argument that the order only permitted the defendant to make a request that certain persons who were present in the courtroom when the order was made might remain upon his request; in other words, it is contended that he was not permitted to request the attendance of any person at any later session after the making of the order. We do not think this to be a reasonable construction of the order. We think it was the intention of the trial court to permit the defendant to request any person to attend during the whole trial, and remain during any sitting of the court, and to be admitted at all sessions if his presence was desired and requested by the defendant.

In view of the meager showing as to attendance at the trial under the restrictions of the order, we cannot say, nor intimate, that the trial was not public within the meaning of the constitutional provision. If every one attended that the defendant desired to have present and all others attended that could have attended under the provisions of the order, we cannot say that the trial was not public. Every one who had business or duties in the courtroom, and every one that the defendant or state's attorney might request to be present, was permitted to be present. There is no contention nor room for contention that the order did not give the defendant the same privileges that were accorded the state's representative. There was no favoritism shown to the state nor to the defendant. It is not shown that any one was excluded by reason of the order, except by inference, as above stated. The Constitution of this state guarantees to all persons accused of crime a speedy and public trial. These provisions are for the benefit of the accused. They were enacted to forever make it impossible for public prosecutors or courts to continue the evils of secret trials as they formerly existed. These prohibitions or guaranties are construed generally to have been enacted to prevent secret trials, and public trials in the literal sense of those words have never been construed to be granted by these provisions. It is never contended that the state is burdened by these provisions with the duty of providing courtrooms of sufficient capacity to accommodate every one who may wish to be present at trials. These provisions are held to be subject to a reasonable construction, and circumstances may arise where certain portions of the public may be excluded without impairing the defendant's rights underthese provisions. For instance, it is conceded by text-writers and courts generally that persons of immature years may be excluded from the courtroom during the trial where the evidence relates to scandalous, indecent, or immoral matters. Furthermore, the courtroom may be cleared to prevent interference with, or obstruction of, the due administration of justice. The orderly conduct of the courts in the administration of justice is deemed to warrant the exclusion of the public from trials where those present conduct themselves in a manner tending to obstruct justice, or tending to give either the state or the defendant an unfair trial. It is deemed better to limit the right to a public trial than that the trial may be conducted in such a manner by reason of those present that the rights of the parties may be prejudiced. Grimmett v. State, 22 Tex. App. 36, 2 S. W. 631, 58 Am. Rep. 630;State v. Hensley, 75 Ohio St. 255, 79 N. E. 462, 9 L. R. A. (N. S.) 277, 116 Am. St. Rep. 734;Lide v. State, 133 Ala. 43, 31 South. 953.

In Cooley on Const. Lim. (6th Ed.) p. 373, this rule is laid down, and has been taken as a guide in many cases that have since involved this question: “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 supported the motive to attend the trial on the part of portions of the community would be of the worst character, and where a...