Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
The appellant, Francis Haskins, was convicted on four indictments, charging him respectively with private lewdness, fornication, receiving the earnings of a prostitute, and maintaining a place for purposes of prostitution. We need give no consideration to another defendant who does not appeal. Haskins' main ground of appeal is that he was deprived of his right to a public trial.
It appears from a supplemental record (prepared by the trial court pursuant to our order, R.R. 1:6-6) that before the trial began, the court was advised by the legal assistant representing the State, that this was a vile sex case. Thereupon the trial judge, addressing counsel, indicated that it was his intention to clear the courtroom of people who did not belong there. There was no objection from counsel. He thereafter said to the sergeant-at-arms, but in a voice sufficiently loud to be heard by Haskins (Haskins declares he had not heard the Judge's prior statement of intention);
"Mr. Hyland, will you clear the courtroom of all people except witnesses in this case."
The supplemental record discloses that the judge apparently did not mean this; he seems to have intended to exclude all persons except witnesses, members of the press, attorneys and close relatives of the defendant. However he apparently would have excluded defendant's friends.
The New Jersey Constitution, Art. I, par. 10, guarantees a public trial in these words:
"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury * * *."
The authorities on the question are divided. One line of authority holds or indicates that, even though the case is (as this is) of an indecent nature, the constitutional guaranty stands as a mandate against the exclusion from the courtroom of members of the public. Certain exceptions are recognized by these authorities (see State v. Genese , 102 N.J.L. 134, 142 (E. & A. 1925); Comment, Public Trial in Criminal Cases , 52 Mich. L. Rev. 128, 136 (1953)); but none is pertinent here.
In support of this view, see United States v. Kobli , 172 F.2d 919 (3 rd Cir. 1949, all six circuit judges sitting); Tanksley v. United States , 145 F.2d 58, 60, 156 A.L.R. 257 (9 th Cir. 1944); Davis v. United States , 247 F. 394, L.R.A. 1918 C , 1164 (8 th Cir. 1917); People v. Hartman , 103 Cal. 242, 37 P. 153 (Sup. Ct. 1894); Tilton v. State , 5 Ga. App. 59, 62 S.E. 651, 654 (Ct. App. 1908) (proper to exclude minors and women); People v. Yeager , 113 Mich. 228, 71 N.W. 491 (Sup. Ct. 1897); State v. Keeler , 52 Mont. 205, 156 P. 1080, L.R.A. 1916 E , 472 (Sup. Ct. 1916); Rhoades v. State , 102 Neb. 750, 169 N.W. 433 (Sup. Ct. 1918); State v. Hensley , 75 Ohio St. 255, 79 N.E. 462, 9 L.R.A., N.S. , 277 (Sup. Ct. 1906); State v. Osborne , 54 Or. 289, 103 P. 62 (Sup. Ct. 1909); cf. People v. Jelke , 308 N.Y. 56, 123 N.E. 2 d 769 (Ct. App. 1954) -- the decision depends in part on a New York statute; Wade v. State , 207 Ala. 1, 92 So. 101 (Sup. Ct. 1921). See Note, Accused's Right to a Public Trial , 49 Col. L. Rev. 110, 117 (1949). The two most recent cases, United States v. Kobli, supra , and People v. Jelke, supra , are strong authorities for the views they express.
There are, however, other cases which construe the word "public" less rigorously, -- that is, as meaning "not secret." Thus in the following decisions it was held not improper to admit only the following persons to the courtroom: Reagan v. United States , 202 F. 488, 490, 44 L.R.A., N.S. , 583 (9 th Cir. 1913) -- witness, court officers and all members of bar; Sawyer v. Duffy , 60 F. Supp. 852, 853 (D.C.N.D. Cal. 1945); Keddington v. State , 19 Ariz , 457, 172 P. 273 [38 NJSuper Page 254] L.R.A. 1918 D , 1093 (Sup. Ct. 1918) -- witnesses, defendant's relatives and reporters; Benedict v. People , 23 Colo. 126, 46 P. 637 (Sup. Ct. 1896) -- lawyers, law students, court officers and witnesses; Robertson v. State , 64 Fla. 437, 60 So. 118, 119 (Sup. Ct. 1912) -- all persons directly interested in the case; State v. Johnson , 26 Idaho 609, 144 P. 784, 785 (Sup. Ct. 1914) -- all persons other than spectators; State v. McCool , 34 Kan. 617, 9 P. 745, 747 (Sup. Ct. 1886) -- all persons other than ladies; State v. Croak , 167 La. 92, 118 So. 703, 705 (Sup. Ct. 1928) -- including those specially requesting admittance; State v. Nyhus , 19 N.D. 326, 124 N.W. 71, 27 L.R.A., N.S. , 487 (Sup. Ct. 1909) -- jurors, court officers, attorneys, litigants, witnesses and persons whom the parties may request to remain; Grimmett v. State , 22 Tex. App. 36, 2 S.W. 631 (Ct. App. 1886); State v. Smith , 90 Utah 482, 62 P. 2 d 1110, 1115 (Sup. Ct. 1936) -- witnesses, members of bar, press, relatives, intimate friends (counsel consenting); State v. Holm , 67 Wyo. 360, 224 P. 2 d 500, 508 (Sup. Ct. 1950) -- witnesses, interested parties, friends; cf. Hogan v. State , 191 Ark. 437, 86 S.W. 2 d 931, 932 (Sup. Ct. 1935) -- exclusion for ten minutes because of ten-year-old prosecutrix' embarrassment; Moore v. State , 151 Ga. 648, 108 S.E. 47 (Sup. Ct. 1921); Sallie v. State , 155 Miss. 547, 124 So. 650 (Sup. Ct. 1929); State v. Damm , 62 S.D. 123, 252 N.W. 7, 10, 104 A.L.R. 430 (Sup. Ct. 1933) -- exclusion during examination of 13-year-old prosecutrix who had commenced to cry; State ex rel. Baker v. Utecht , 221 Minn. 145, 21 N.W. 2 d 328, 331 (Sup. Ct. 1946) -- only unusual circumstances would justify exclusion of part of public, even temporarily; 6 Wigmore, Evidence (3 rd ed. 1940), § 1835, p. 338; Radin, Right to a Public Trial , 6 Temple L.Q. 381 (1931); Comment , 35 Mich. L. Rev. 474 (1937). The precise effect of the due process clause upon the issue at hand is not settled. Re Oliver , 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1947); Melanson v. O'Brien , 191 F.2d 963, 965 (1 st Cir. 1951); Commonwealth v. Blondin , 324 Mass. 564, 87 N.E. 2 d 455, 460-461 (Sup. Jud. Ct. 1949).
As the above authorities hold, a public trial serves as a very salutary restraint upon gross abuses of the judicial power, upon lesser evils, such as indolence or a petty arbitrariness on the part of the judge and -- by exposing witnesses to the eyes and the ears of the public -- upon any tendency toward mendacity on their part. There are incidental virtues. By adding a certain formality and solemnity to the trial, it brings to lawyers, and to the jury also, a sense of their responsibility; and by enabling the community to know what the courts are doing, it gives a community confidence in its courts. Other courts, having in view that these considerations (and others which might be mentioned) are of a general nature, hold that there is no harm in making an exception for an occasional case such as this; they are mindful of the offensiveness of allowing an affair of justice in such a sordid matter to become an exhibition before the idle and ...