In the case of Wade v. State, 207 Ala. 1, 92 So. 101, we held that under section 6 of the Constitution the defendant was entitled to a speedy public trial and the trial court erred in excluding every one from the courtroom except the officials. We also held that the only exception was as to cases expressly named in section 169 of the Constitution, to wit, "rape and assault with intent to ravish."
This defendant was indicted and tried under section 5410 for having "carnal knowledge of any girl under twelve years of age." It may be true that this may be a kindred offense with rape, but this court in the case of Toulet v. State, 100 Ala. 72,14 So. 403, held that the offense here involved did not constitute rape and we must assume that the framers of the Constitution of 1901, when adopting section 169 had full knowledge with the holding in the Toulet Case, supra, and did not intend thereby to include any offenses save "rape and assault with intent to ravish."
Decency and propriety may suggest the same reason for excluding the crowd in trials of this character, but we feel foreclosed by the Toulet Case, supra, from including this offense in section 169 of the Constitution.
Rehearing granted, judgment of affirmance set aside, and reversed and remanded.
ANDERSON, C. J., and GARDNER, BOULDIN, and BROWN, JJ., concur.
THOMAS, FOSTER, and KNIGHT, JJ., dissent on rehearing.