Stewart v. State

• Decision Date: 30 June 1922
• Docket Number: 4 Div. 796.
• Citation: 18 Ala.App. 622,93 So. 274
• Parties: STEWART v. STATE.
• Court: Alabama Court of Appeals

93 So. 274

18 Ala.App. 622

STEWART v. STATE.

4 Div. 796.

Court of Appeals of Alabama

June 30, 1922

Appeal from Circuit Court, Pike County; W. L. Longshore, Judge.

Fred Stewart was convicted of seduction, and he appeals.Reversed and remanded.

W. E. Griffin, of Troy, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

This defendant was charged by indictment with the offense of seduction.

On October 31, 1921, the case was called for trial, both sides announced ready, whereupon before proceeding further the court ex mero motu ordered the courtroom cleared, and announced that no one would be allowed in the courtroom, during the trial, except those necessary to the trial of the case, and the public was accordingly excluded from the courtroom during the whole trial.

Section 6,Constitution 1901, provides, among other things, that in all prosecutions by indictment the accused shall have "a speedy, public trial," etc.The only exception to this provision is found in section 169 of the Constitution of 1901, wherein it is provided that in all criminal prosecutions for rape and assault with intent to ravish, the court may in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial.

The Constitution provides therefore that in all prosecutions by indictment except for rape, and assault with intent to ravish, the trial of the accused must be public; and in prosecutions for these excepted offenses the trial must be public, except in such cases as in the discretion of the court all persons shall be excluded except such as may be necessary in the conduct of the trial.It follows that the court committed error by the order denying the accused a public trial in this case, as the crime for which he was on trial was seduction, and such a charge is not within the limited and exclusive exceptions provided in section 169 of the Constitution of 1901; and it has been expressly held that the failure of the accused to object to such order at the time or during the trial did not and could not operate as a waiver by him of the error resulting from a denial of right of a public trial assured by the Constitution.Charlie Wade v. State(Ala. Sup.)92 So. 101(opinion rendered November 3, 1921).See, also, Ex parte Charlie Wade;In re Wade v. State(Ala. Sup.)92 So. 104(opinion rendered February 25, 1922).

The case of Charlie Wade v. State, supra, was submitted in this court; the accused having been charged with and convicted of the offense of mayhem.This court in an opinion rendered June 30, 1921, 92 So. 97, a further opinion rendered December 20 1921, 92 So. 97, affirmed the judgment of conviction on the theory that...