State v. Osborne

• Decision Date: 20 July 1909
• Citation: 103 P. 62,54 Or. 289
• Parties: STATE v. OSBORNE.
• Court: Oregon Supreme Court

103 P. 62

54 Or. 289

STATE v. OSBORNE.

Supreme Court of Oregon

July 20, 1909

Appeal from Circuit Court, Malheur County; Geo.E. Davis, Judge.

Heck Osborne, having been convicted of an assault with intent to rape, appeals. Reversed.

W.H. Brooke and F.M. Saxton, for appellant.

A.M Crawford, Atty. Gen., and J.W. McCulloch, Dist. Atty., for the State.

KING J.

Heck Osborne and Sam Yarbrough were jointly indicted on a charge of assault with the intent to commit rape upon Etta Van Blearicom, a woman over 16 years old. Yarbrough pleaded guilty, and was sentenced to the penitentiary. At a subsequent term of court Osborne was tried, convicted, and sentenced to three years' imprisonment, from which he appeals.

After the case was called for trial, and before the taking of any testimony, the district attorney requested that the public be excluded, stating: "If the court please, before beginning the taking of testimony in this case, I would like to ask for an order of the court excluding the public from the trial. It has a good deal of dirty vulgar language to be used, and we can probably get at it better to have a closed-door session." Defendant's counsel objected to this request, but the court overruled the objection, and directed the sheriff as follows: "You will please exclude everybody from the courtroom except the defendant, the attorneys engaged in the trial of this case the jury, and officers of this court, and the witnesses while on the witness stand; and you will observe this order so to exclude the public from the courtroom during the taking of testimony upon this trial." The making of this order constitutes the first prejudicial error assigned. It will be observed from the language of the court that the public was intended to be excluded. Whether this order was carried into effect the bill of exceptions does not disclose; but, in the absence of some showing therein to the contrary, it must be presumed that the order was enforced, and, if erroneous, that it was prejudicial to the rights of the defendant. Inverarity v. Stowell, 10 Or. 261; Du Bois v Perkins, 21 Or. 189, 27 P. 1044; Nickum v. Gaston, 24 Or. 380, 33 P. 671, 35 P. 31; State v. Morey, 25 Or. 241, 35 P. 655, 36 P. 573; Carney v. Duniway, 35 Or. 131, 57 P. 192, 58 P. 105; Carter v. Wakeman, 45 Or. 427, 78 P. 362; State v. Reed (Or.) 97 P. 627. It is argued that the procedure complained of is in violation of the plain provisions of both our national and state Constitutions. Upon this subject the Constitution of the United States (amendment 6) provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense." It seems to have been held that, so far as this provision of the national Constitution is concerned, it was not intended to limit the powers of the states in respect to their own people, but to operate on the national government only. Spies v. Illinois, 123 U.S. 131, 8 Sup.Ct. 22, 31 L.Ed. 80; In re Sawyer et al., 124 U.S. 201, 8 Sup.Ct. 482, 31 L.Ed. 402; Brown v. New Jersey, 175 U.S. 174, 20 Sup.Ct. 77, 44 L.Ed. 119. But, whatever the rule on that subject may be with reference to the national organic law on the subject, the Constitution of our state is to the same effect. See Const. Or. art. 1, § 11. The courts have uniformly held not only that constitutional guaranties of an accused on trial for a felony cannot be set aside by the courts, but that they cannot be waived. Hopt v. Utah, 110 U.S. 574, 579, 4 Sup.Ct. 202, 28 L.Ed. 262; Crain v. United States, 162 U.S. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097. To the effect that this rule with but few exceptions applies with equal force to statutory guaranties under such circumstances, see State v. Walton, 50 Or. 142, 91 P. 490, 13 L.R.A. (N.S.) 811; Id., 51 Or. 574, 91 P. 495, and numerous authorities there cited.

There can be no question as to the right of a court to exercise much discretion in excluding in rare instances a part of the public, such for example, as hysterical persons, or those who may be inclined to disturb the orderly progress of the trial, or the young during a class of trials that shock the sense of decency or degrade the public morals. Also, for obvious reasons, it has been held that a trial court may regulate the indiscriminate admission of persons of a known class who might by their conduct tend to embarrass the witness, or interfere with the due and orderly progress of the trial. Extreme cases have also arisen where it has been found necessary to exclude the greater part of the spectators. Of this class are the cases of People v. Kerrigan, 73 Cal. 222, 14 P. 849, and Grimmett v. State, 22 Tex.App. 36, 2 S.W. 631, 58 Am.St.Rep. 630. In the latter case the trial was for rape where the witness under examination was a girl 14 years old. Numerous persons throughout the audience persisted in laughing and in otherwise disturbing the proceedings, whereupon it was deemed necessary temporarily to clear the room in order to quiet such disturbance. In People v. Kerrigan the court excluded all except the officers, those concerned in the trial, and friends of the defendant, which action was upheld on appeal, but in People v. Hartman, 103 Cal. 242, 37 P. 153, 42 Am.St.Rep. 108, this holding was impliedly overruled. The procedure in the Kerrigan and Grimmett Cases was approved on appeal only because the record did not show that the defendant's rights were prejudiced thereby; the appellate court holding that the burden was upon the defendant to show injury by reason of having been deprived of a public trial. On this subject, in People v. Hartman, 103 Cal. 245, 37 P. 154, 42 Am.St.Rep. 108, the court observes: "These intimations cannot be indorsed. The defendant charged with crime is entitled to certain rights under the Constitution, and, when he has been deprived of any one of them, he has not had that fair and impartial trial to which he is entitled, however bad and degraded." In People v. Hall, 51 A.D. 57, 64 N.Y.Supp. 433, State v. Callahan, 100 Minn. 63, 110 N.W. 342, and Benedict v. People, 23 Colo. 127, 46 P. 637, the courts appear to recognize the practice followed in the Kerrigan and Grimmett Cases; but whatever may be the reasons assigned for the conclusions announced, or the distinctions attempted between those cases and the great weight of authority, the rule there applied can have no application in this state. Carter v. Wakeman, 45 Or. 427, 430, 78 P. 362. In People v. Murray, 89 Mich. 276, 290, 50 N.W. 995, 14 L.R.A. 809, 28 Am.St.Rep. 294, the court in distinguishing the case of People v. Kerrigan from the one under consideration says: "Neither is this case an authority for what was done in Murray's Case. The court did not order the courtroom to be cleared of spectators, but the lobby outside. There is nothing in the facts of that case which assimilates in any degree to the trial of Murray. Here no violence is shown, no disorderly conduct, no violent or disgraceful action on the part of Murray, which tended to lessen the dignity of the court, or bring the administration of justice into disrepute. I cannot accede to the correctness of the proposition intimated in that case that, if a public trial has not been accorded to the accused, the burden is upon him to show that actual injury has been suffered by a deprivation of his constitutional right. On the contrary, when he shows that his constitutional right has been violated, the law conclusively presumes that he has suffered an actual injury. I go further, and say that the whole body politic suffers an actual injury when a constitutional safeguard erected to protect the rights of citizens has been violated in the person of the humblest or meanest citizen of the state. The Constitution does not stop to inquire of what the person has been accused or what crime he has perpetrated, but it accords to all without question, a fair, impartial, and public trial. *** Who is to decide who are the friends of the accused? The law makes no such test, but allows all citizens freely to attend upon any trial, whether civil or criminal." After the appellate

court had held that the public must not be excluded, the Legislature of Michigan passed an act permitting trial courts in certain cases to exclude the public, but in People v. Yeager, 113 Mich. 228, 71 N.W. 491, this legislative enactment was held unconstitutional.

The cogent reasons above given for not requiring the defendant on appeal to show that he was actually prejudiced on account of the court's invasion of his constitutional rights may be further supplemented. The very fact that a defendant is tried in the absence of the public, or, in other words, that the trial was secret, might in many instances deprive him of the power of showing that he has not had a fair trial. This in itself might result in the affirmance of a judgment of conviction which may have been secured in an unjust and illegal manner. With an audience present it is always within the power of the accused or of his counsel to call upon the persons present to witness unbecoming language or conduct of counsel, or of the court, or of others connected with the trial, of which privilege he would be precluded in the absence of such an audience. It often happens that disputes arise between the court and counsel, such, for instance, as where the court refuses to recognize exceptions taken whereupon it becomes necessary that...