MOORE, Justice.
Plaintiff in error, to whom we will refer as the defendant, was found guilty of the crime of first-degree rape. The cause originated in the district court of Gunnison county upon the filing of an information in which it was alleged that the defendant:
'* * * did feloniously wilfully and forcibly make an assault upon one Kitty Sue Keltz, a female person not then and there his wife, and did then and there feloniously, violently forcibly and by threats of immediate and great bodily harm to her from him, accompanied by apparent power of execution, and against her will, she having resisted and her resistence having been overcome by force, violence and said
threats of immediate and great bodily harm, did forcibly rape and know her, the said Kitty Sue Keltz, and that Alfred Keller did then and there wilfully and feloniously stand by and aid, abet and assist the said Robert Thompson in perpetrating the aforesaid crime of rape, against the said Kitty Sue Keltz, contrary to the form of the Statute * * *.'
Upon the entry of pleas of not guilty by Thompson and his co-defendant Keller, a motion for severance was filed by each defendant, each of which was denied. Alfred Keller was found not guilty of the crime charged against him. The jury returned a verdict finding the defendant guilty as charged and the trial court entered judgment that he serve a term of not less than seven nor more than fourteen years in the state penitentiary.
The argument of counsel for plaintiff is presented to this court under eight separate captions as follows:
'A. The Court erred in denying defendant's motion for separate trial.
'B. The Court erred in closing trial to the public.
'C. The Court erred in refusing to set aside verdict as contrary to law and evidence.
'D. The Court erred in instructing the jury.
'E. The Court erred in striking testimony of defendant's character witness.
'F. The Court erred in not declaring a mistrial upon jury's return for further instructions.
'G. The Court was arbitrary and capricious in denying probation.
'H. The Court was arbitrary and capricious in imposing an excessive and unwarranted punishment.'
The only arguments warranting discussion are presented to this court under Sections 'B' and 'D'. A careful study of the record clearly reveals that the other assignments of error are without merit.
We consider first the argument of counsel that the trial court erred 'in closing trial to the public.' In this connection the record discloses the following: At the outset of the trial, and before a jury was impaneled, the prosecuting attorney (Mr. Knous) and addressed the court as hereinafter set forth, and the following proceedings occurred:
'If your Honor please, I move at this time that spectators who have no legitimate purpose to be in the courtroom be excluded during the trial. This is a rape case. There will be certain medical testimony, and also testimony of the prosecuting witness that I think would be such that idle spectators should not be permitted in the courtroom, especially in view of the fact that the alleged victim, the prosecutrix, attended Western State College here, and there might be certain college students that have some interest in this matter. In my opinion, it is the type of case where the Court could properly exclude spectators who have no special reason for listening to the trial.
'THE COURT: Will you give the Court a brief statement of the nature of the evidence is that might be introduced?
'MR. KNOUS: The prosecutrix, of course, will testify concerning the alleged rape and go into some detail, and the two medical doctors will testify to some extent concerning female anatomy, and by that I refer to the hymen and vagina and matters such as that.
'THE COURT: Will there be any evidence introduced on either side concerning the removal of any clothes?
'MR. KNOUS: Yes, the prosecuting witness will testify as to that.
'THE COURT: To what extent?
'MR. KNOUS: Virtually all of her clothes, your Honor.
'THE COURT: How old is this girl?
'MR. KNOUS: And there also might be some testimony concerning obscene language in this particular case, four-letter words.
'THE COURT: What is the age of this girl?
'MR. KNOUS: The girl is 20 at this time.
'THE COURT: And what about the age of the boys?
'MR. KNOUS: One boy, I believe, is 22. I don't know what the other boy's age is.
'THE COURT: As I understand, there were two boys, the two defendants, and the two of them were present when the alleged rape was to have taken place, how old is the other boy?
'MR. KNOUS: The girl will be 21 in January, this month.
'MR. BRATTON: The other boy was 20 on the 24th of December.
'MR. KNOUS: As I understand, the girl will be 21 in January, this month, but I do think that there would be quite a number of students here at the college who might be interested in being present during the trial since all of the parties defendants and the girl involved are known here in Gunnison.
'THE COURT: I assume that the attorneys for the two defendants have discussed this among yourselves, do you care to make, to advise the Court as to your position on this motion?
'MR. KLINGSMITH: Your Honor, the defendant Robert Thompson strongly objects to an exclusion of the public from this trial. Article II, Section 16 of the Constitution of Colorado guarantees to defendants in a criminal trial the right to a public trial.
'THE COURT: I am familiar with that, of course, but do you consent that it is in the sound discretion of the Court?
'MR. KLINGSMITH: I think that is true. I think the Court does have the discretion, whether to exclude some or all of the spectators from a trial, but I want to point out the Constitutional guarantee which we believe should not be lightly considered by the Court, but on the other hand, the Court should only in the most serious of instances exclude the public from a trial. Now, Mr. Knous in his statement said that idle spectators who have no business at the trial should be excluded. We wish to point out that the public, your Honor, the public's presence at a trial has a very salutory and beneficial effect. By that I wish to point out that it is the public's concern. It is the public's business. After all, it is the public who is the plaintiff in this case, and they are entitled to watch the procedure that is carried on in the courtroom, and it is not anything that should be lightly denied to the public. Now, from the point of view of the defendants, we feel in this case particularly there are many witnesses who might be more likely to exaggerate or color or perhaps stretch their story a little bit if it is more or less a closed, private proceeding than they would be in the white glare of publicity, if you will, were shining on this trial. We strongly feel that the rights of our client Robert Thompson here would be seriously prejudiced if many of these witnesses had the feeling that this was a private affair and if their testimony is not tested by the fact that it were given in public.
'THE COURT: By the same token, do you agree with me that under certain circumstances insofar as the delicacies of certain testimony is concerned, especially by the victim, that she might be inclined to give a little more
truthful story of some of the sordid details that she might unravel if the general public was excluded.
'MR. KLINGSMITH: The way we look at is, your Honor, we think that the alleged victim would be considerably more likely to stay with the truth if the public were present. Now, I think everybody considers strongly her feeling in this case, but we wish to call the Court's attention to the right and liberty of our client Robert Thompson, that is to say, he stands, as we all know, a chance of being sentenced to the penitentiary from three years to life, and when his right to an open trial, his right to a fair trial, and his rights to a fair and full disclosure of the facts are considered as against some possible embarrassment to her, we think that his rights are in this particular instance, his rights to have this thing made public, far outweigh the slight embarrassment, that additional embarrassment, that may be caused her by having a few more interested citizens, not idle spectators, present at this trial.
'THE COURT: Of course, you will agree, I am sure, with this statement. The ultimate object in the case is to see that justice is done, regardless or the prosecution's alleged victim, and regardless of the defendants. I don't quite understand just how excluding the general public from the courtroom during the trial, I don't see how it would jeopardize the rights of your client, if all of the evidence was in which the parties have a right to put in which the people themselves would testify to, how that would injure the rights of your client.
'MR. KIINGSMITH: We think, your Honor, that statements are going to be made in this trial, in fact,we know that conflicting statements are going to be made. We know that some of these state- ments are not going to be true, and we feel that some of these un- true statements which I feel are going to be made, will be closer to the truth if the public is here listening to them than if these witnesses get the idea that this is a chamber proceeding than they would if the white glare of publicity were given to their remarks. We think that this is something not to be lightly taken away from the the defendants, and we think that the slight additional embarrassment which might result, it would be much better to have a few extra people in this courtroom, and that the slight...
