Tanksley v. United States

• Decision Date: 21 September 1944
• Docket Number: No. 10628.,10628.
• Citation: 145 F.2d 58
• Parties: TANKSLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

145 F.2d 58 (1944)

TANKSLEY v. UNITED STATES.

No. 10628.

Circuit Court of Appeals, Ninth Circuit.

September 21, 1944.

Cecil H. Clegg and Julien A. Hurley, both of Fairbanks, Alaska (Herman Weinberger, of San Francisco, Cal., of counsel), for appellant.

Harry O. Arend, Asst. U. S. Atty., of Fairbanks, Alaska (Ralph J. Rivers, of Fairbanks, Alaska, of counsel), for appellee.

Before WILBUR, DENMAN, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

Appellant was indicted, tried by jury and convicted of the crime of rape committed near Fairbanks, Alaska, in violation of Section 4768 of the Criminal Code of Alaska, and sentenced to imprisonment for six years under Section 4769 of that code. He has appealed here from that sentence.

The complaining witness was a married woman nineteen years of age. Appellant's defense was that after preliminary embraces of an experienced character, they drove to a then unused roadhouse nearby, where she willingly joined in the admitted sexual intercourse and then demanded $100 as her compensation. The charge of rape, appellant claims, arose from her anger at not being paid that amount, and to compel its payment. The complaining witness took the stand and contradicted these statements. Her testimony of her conduct before and after the alleged rape, corroborated and contradicted, and her sole evidence of the rape itself, supports the verdict on the inference that the appellant's defense was untrue and that she was the unfortunate victim of a brutal outrage.

The case was tried at Fairbanks, the vicinage of the alleged acts. At the opening of the trial, the court ordered the public excluded and admitted only the parties and their counsel, the officers of the law, representatives of the press, and the brother and father of the defendant. Defendant claimed his right to a public trial, given by the Sixth Amendment, made an objection to the order of the court which was overruled, excepted, and here assigns as error a denial of that right.

The government relies on two decisions of this court in appeals from the sentences of the Alaska District Court for the crime of rape, Reagan v. United States, 9 Cir., 202 F. 488, 44 L.R.A.,N.S., 583, and Callahan v. United States, 9 Cir., 240 F. 683, relying on the decision in the Reagan case, in both of which there was a similar exclusion of the public. However, in both these cases the indictments were for significantly different provisions of the section of the Alaska Criminal Code defining the crime of rape. That section is 4768 and reads as follows: "Whoever has carnal knowledge of a female person, forcibly and against her will, or being sixteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape."

In both these earlier cases the victims were girls fourteen years of age. In neither case could the defense of consent be raised. In the case of this adult married woman, the trial court reasonably could expect that such would be the defense of the accused.

In the Reagan case this court did not hold that the exclusion of the public was not a violation of the defendant's right to a public trial. What was held was that, on the facts existing in that case, no possible prejudice could have been suffered by the defendant from the exclusion of the public. The opinion states that ground of the decision at page 490 of 202 F., 44 L.R.A., N.S., 583, as follows: "The only conceivable benefit the defendant might have been deprived of by the order of the court in this case was the presence in the courtroom of a crowd of idle, gaping loafers, whose morbid curiosity would lead them to attend such a trial, and the consequent embarrassment and annoyance their presence might cause to the unfortunate girl who was called upon to testify to the story of the defendant's crime and her shame. Of the deprival of that benefit the defendant has no legal ground to complain."

Having thus found on the facts concerning these fourteen year old children that there could be no prejudice, we treat as dictum the court's statement that "We think the better doctrine is that it is not reversible error to exclude the spectators as was done by the order of the court in the case at bar, when there is no showing whatever that the defendant was prejudiced thereby, or deprived of the presence, aid, or counsel of any person whose presence might have been of advantage to him."

We do not agree with this dictum that, upon the denial of the constitutional right to a public trial, the burden falls on the defendant to show that he was prejudiced by the denial. We agree with the decision of the Eighth Circuit in Davis v. United States, 8 Cir., 247 F. 394, 398, L.R. A.1918C, 1164, that "A violation of the constitutional right necessarily implies prejudice and more than that need not appear. Furthermore, it would be difficult, if not impossible, in such cases for a defendant to point to any definite, personal injury. To require him to do so would impair or destroy the safeguard."

It is obvious that the defendant's presumption of innocence of raping this adult married woman requires that he shall be given his full right to establish his claim to her consent to the admitted sexual intercourse. Equally obvious that such a defense will cause the accusing witness "embarrassment" in a public trial whether testifying truly or falsely. It would be denying the defendant his presumption of innocence and a predecision by the court of his guilt to hold that such a married woman must be relieved of that embarrassment because she is "called upon to testify to the story of the defendant's crime and her shame." Emphasis supplied. (See matter quoted above from the Reagan case.) Whether or not it was proper for the trial judge in that case to exclude the public on the assumption that the crime had been committed on those fourteen year old girls, no such assumption can be made here.

One of the main purposes of the admission of the public is the reasonable possibility that persons unknown to the parties or their counsel, but having knowledge of the facts, may be drawn to the trial — for example, here where the defense is that the accusing witness is a woman who desires to be paid for her sexual intercourse. If such a woman, another man who had had such paid intercourse might be in attendance. Realizing the danger to the defendant of the heavy penalty for the serious crime charged, he well might advise defendant's counsel of his experience with the accusing witness. Even without this his very presence in the courtroom might arouse in her a fear or sense of shame that would alter or weaken her testimony against the accused.

This latter is the reason ascribed by Hale and Blackstone for the right of accused to the presence of the public at common law trials. Hale commends the system of giving evidence "in the presence of the parties, counsel and all bystanders" emphasis supplied and later, contrasting the merits of such trial against the ecclesiastical trials upon deposition, states:

"Ninethly, the excellency of this Open course of evidence to the jury, in presence of the judge, jury, parties and counsel, and even of the adverse witnesses, appears in these particulars.

"1st. That it is openly, and not in private before a commissioner or two, and a couple of clerks; where, oftentimes witnesses will deliver that which they will be ashamed to testify publickly."¹

Blackstone follows in almost the same language.²

It is apparent that the defendant would not know of the excluded persons who would thus create in a witness the fear of the shame of public exposure of false testimony, a shame to be heightened by the fear of prosecution for perjury.

Blackstone and Hale are among the accepted text books for the lawyers who were members of the constitutional convention. Whether or not that convention had in mind these particular portions of the writings of these two authorities, we recognize them as describing the reasons for the right to a public trial at the common law, which prevailed in the United States when the Constitution was framed.

It is not necessary to consider whether there is a discretionary power in the trial court to exclude from the courtroom minor children, State v. Adams, 100 S.C. 43, 84 S.E. 368; or persons actually disturbing the proceedings, State v. Callahan, 100 Minn. 63, 110 N.W. 342; or those likely to create a disturbance, United States v. Buck, Fed.Cas.14,680; or adults in cases in which, as the trial progresses, facts are developed of pathologic and revolting perversion. Assuming there may be such discretion, the trial court erred in assuming the power of exclusion here exercised at this trial on the charge of rape of an adult woman.

We find no error in the other assignments of error. As stated, there is sufficient evidence to warrant the verdict. The indictment sufficiently describes, by her maiden name, the woman upon whom it is charged the rape was committed. The failure at the preliminary hearing to state all the facts attending the claimed rape in response to the instruction "to proceed and tell what happened," is not a ground of impeachment. State v. Ogden, 39 Or. 195, 65 P. 449. The sentence which constitutes the judgment is sufficiently preceded by the recital of the finding of the verdict of guilty.

Appellant was entitled to demand the giving of a proper proposed instruction concerning impeachment. There was no error in refusing his requested instruction No. 6, reading,

"Instruction 6 Requested by the Defendant. You are instructed that a witness may be impeached by the party against whom he or she was called by contradictory evidence or by evidence that he or she had made at other times statements inconsistent and at variance with what he or she may have testified to upon the witness stand.

"If you believe that any witness in this case has been successfully impeached, you will be justified in disregarding the...