Wade v. State , 207 Ala. 1 ( 1921 )

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 Rawle 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 of the Constitution — as he was charged with and convicted of a felony, and it is questionable whether or not he could have expressly waived these rights, to say nothing of an implied waiver. Hopt v. Utah, 110 U.S. 574, 4 Sup. Ct. 202,28 L. Ed. 262; Ohio v. Hensley, 75 Ohio St. 255, 79 N.E. 462, 9 L.R.A. (N.S.) 277, 116 Am. St. Rep. 734, 9 Ann. Cas. 108; Williams v. State, 47 Ala. 659; Bell v. State, 44 Ala. 393; Kilgore v. State, 124 Ala. 24, 27 So. 4; Bankhead v. State, 124 Ala. 14,26 So. 979.

It results from this holding that the opinion of the Court of Appeals is unsound, as well as the case of Clemons v. State,17 Ala. App. 533, 86 So. 177, cited and relied upon in the instant case, and that this court improperly denied the certiorari in said Clemmons Case, as appears from a memorandum opinion in 204 Ala. 697, 86 So. 926.

The case of Lide v. State, 133 Ala. 43, 31 So. 953, is not in conflict with the present holding. In the first place, section 6 of the Constitution does not seem to have been pressed or argued in brief of counsel, or considered by the court; but, if it had been, the exclusion of the crowd, owing to the misbehavior of some of them, did not prevent the trial from being a public one, as the record discloses that a good part of the audience remained in the galleries and others were admitted to the courtroom after said exclusion by the trial judge. This case simply holds that the action of the trial court was justifiable, and that the defendant was not deprived of a public trial; that the court had the right to maintain order and to exclude the offending spectators if need be, just as we would now hold; but did not hold that the exclusion of everyone other than the parties interested and engaged in the trial, for no cause other than the character of the charge, was a public trial within the contemplation of section 6 of the Constitution.

The writ of certiorari is awarded; the judgment of the Court of Appeals is reversed, and the cause is remanded to that court for the further disposition of the case in conformity with this opinion.

Writ awarded; reversed and remanded.

McCLELLAN, SOMERVILLE, THOMAS, and MILLER, JJ., concur in the opinion and conclusion.

SAYRE, J., agrees with the treatment of the constitutional question and, therefore, that the trial court erred in the order of exclusion, but thinks that the writ should be denied because of a failure of the defendant to object and except to the order when made, and dissents.

GARDNER, J., agrees with SAYRE, J., that the point was waived, and that the writ should be denied upon that ground, and dissents, and thinks it unnecessary to decide the constitutional question.

On Rehearing.