Wade v. State
| Decision Date | 03 November 1921 |
| Docket Number | 6 Div. 516. |
| Citation | 92 So. 101,207 Ala. 1 |
| Parties | WADE v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 24, 1921.
Certiorari to Court of Appeals.
Application by Charley Wade, for certiorari to Court of Appeals to review and revise the judgment of said court affirming the appeal of Charley Wade v. State of Alabama, 92 So. 97. Writ granted, and the cause reversed and remanded to the Court of Appeals.
For opinion on further application for certiorari, see 92 So 104.
Beddow & Oberdorfer, Roderick Beddow, and B. F. Ray, all of Birmingham, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
Section 6 of the Constitution of Alabama is practically taken from the Constitution of the United States, and among other things provides "that *** in all prosecutions by indictment" the accused has a right to "a speedy public trial by an impartial jury of the county or district in which the offense was committed." As to the right of the trial court to exclude certain spectators during the trial or all persons other than those actually engaged or interested in the trial, the courts are divided. Some hold that this constitutional guaranty is violated by an exclusion of any part of the public; others that for good cause the trial court can exclude certain persons or a portion of the public, and that the trial would still be a public one within the meaning of this constitutional provision so long as the attendants were not confined to those engaged or interested in the trial and the relatives of the parties. There is still another line of cases which seem to indicate that trial courts may brush aside or subordinate this constitutional provision to what they may deem is demanded by the rules of society and decency, and may exclude all spectators or persons other than those engaged or interested in the trial. For cases on this subject, see 16 C.J. p. 807, § 2052 and notes; State v. Nyhus, 19 N.D. 326, 124 N.W. 71, 27 L. R. A. (N. S.) 487, and note. Whatever may be the rule in other states, the framers of our present Constitution regarded section 6 as mandatory, and as preventing the general exclusion of court attendants and spectators by changing the rule in a few instances by inserting section 169, which says:
"In all 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."
To hold that the trial court could exclude the public generally in cases not mentioned in section 169 of the Constitution would in effect, emasculate said section, and convict the framers of our present Constitution of a vain and useless act in the insertion and adoption of said section.
It is an elementary rule that, if possible, effect should be given to every part and every word in Constitutions, as well as statutes, unless there is some clear reason to the contrary; and no portion of the fundamental law should be treated as superflous. Hence, as a general rule, the court should avoid a construction which renders provisions meaningless or inoperative. 6 R. C. L. p. 48; 12 C.J. 699; State v. Skeggs, 154 Ala. 249, 46 So. 268; Hawkins v. L. & N., 145 Ala. 385, 40 So. 293; Ex parte Dunlap, 71 Ala. 73. It is therefore manifest that section 6 guarantees the accused, under all prosecutions by indictment, a "public" trial, except as to cases expressly reserved from the influence of that section by section 169, and which said last section does not include the present charge.
We also hold that the words "public trial" mean trials as usually and generally conducted, where the courthouse is open to practically any one who may wish to attend, and do not mean one where the public is so generally excluded as to confine the attendants to those engaged and interested in the trial and the relatives of the parties. We, of course, do not wish to go to the extent of some of the courts by intimating that in no instance could the trial court exclude or restrict portions of the crowd. For instance, children of tender age, or where the courthouse is crowded, an order could no doubt be made keeping the crowd within reasonable bounds by excluding some or forbidding the entrance of others; as this could be done and still sufficient attendants or spectators be present to render the trial a public one within the requirement of section 6 of the Constitution; but not upon the theory, as expressed in the opinion of the Court of Appeals and certain cases there cited, that this constitutional provision should yield to the rules of society, decency, and propriety. The exclusion in the case at bar prevented the trial from being such a public one as is contemplated by section 6, and deprived the accused of a constitutional right thereby guaranteed.
The case of Jackson v. Mobley, 157 Ala. 408, 47 So. 590, while not in point, contains a clear enunciation of the rule to which we must adhere in the present case, that all criminal proceedings should be open and public except when otherwise provided by law. Nor can the action of the trial court and the holding of the Court of Appeals find justification under section 4019 of the Code of 1907. This section appears in the Civil Code, and applies, doubtless, only to civil cases; but, if it includes criminal cases also, it must be so construed as to render it harmonious to section 6 of the Constitution, and as including only prosecutions not thereby covered or expressly excluded by section 169 of the Constitution.
While the affirmance of the trial court is not rested upon a waiver by the defendant to raise this question upon appeal, the Court of Appeals does state that the defendant did not object or except to the order of the trial court, and urges the question for the first time on appeal. The statement of the Court of Appeals that the defendant did not object or except to the order of exclusion at the time it was made is correct; but the record discloses that this question was presented and raised in the lower court by a motion for new trial.
We do not think that the defendant had to object at the trial to the denial to him of this constitutional right, which affirmatively appears upon the record sent to the Court of Appeals-no more so than if the record disclosed that he had been deprived of other guaranties under section 6...
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