Of the errors assigned on this appeal, Defendant and Appellant argues three. They are: (a) The court erred in excluding the public from the court room; (b) denial of motion for a new trial; and (c) refusal to give a requested instruction.
The pertinent facts are that after the jury was sworn, and the information read including Defendant's plea of not guilty, a motion was made on behalf of the State to exclude spectators from the court room. Objection was made. Over objection, the court made the following order:
"The motion to clear the court room is granted, and the motion of the State to invoke the exclusion rule is likewise granted. With the exception of all witnesses the Court at this time orders the court room cleared. Spectators will please leave the court room." *Page 530
The Defendant and Appellant, Donald James Beckstead, was on trial in the District Court of the Third Judicial District of the State of Utah, charged with the crime of carnally and unlawfully knowing a female over the age of thirteen years and under the age of eighteen years.
No question is raised as to the sufficiency of the evidence in the motion for a new trial or otherwise. The detailed facts or matters of evidence are immaterial in so far as the issues presented in this Court are concerned.
The error complained of in the exclusion order may seem technical. It is, however, fundamental. We are of the opinion that the order excluding all spectators including friends and relatives of the Defendant was error. The Constitution of this State, Sec. 12, Article 1, provides, among other things, that in criminal prosecutions the accused shall have the right to a speedy public trial. That section is discussed in a case similar to the instant case in State v. Jordan, 57 Utah 612,196 P. 565; also State v. Bonza, 72 Utah 177, 269 P. 480;State v. Smith, 90 Utah 482, 62 P.2d 1110, and cases cited therein. In the cases first cited, what constitutes a public trial is considered as well as a reference to Cooley's Constitutional Limitations. In all of those references, it is laid down as requisite that in a criminal prosecution the trial must be public. The order in the instant case deprived the Defendant of a public trial within the meaning of Section 12 of Article 1 of the Constitution of Utah.
In the case of State v. Smith, supra, it is said that the order made was not as drastic as the orders condemned in the cases of State v. Bonza and State v. Jordan. In the Jordan case after quoting Sections 1788 and 1789, C.L. Utah 1917, which have now become Sections 20-7-1 and 20-7-2, R.S.U. 1933, with the change of the word "provided" to the word "and" in the last clause of the latter section, the Court said:
"Apparently the ruling of the trial court excluding the public in the present case was predicated on the foregoing provision of our statutes. It will be observed, however, that the statutes referred to do not expressly *Page 531 mention the crime of having carnal knowledge, now under consideration." [57 Utah 612, 196 P. 566.]
After discussing the reasons for and importance of the constitutional provision, it is said:
"But it is contended on the part of the state * * * that the court was justified in excluding the public by reason of the provision of our statute (section 1789). * * * It must be kept in mind that the order of the trial court was very comprehensive in terms. The court excluded not only a part of the public, for sufficient reasons shown, but `all persons.'"
The court did not directly pass upon the question as to whether the statutes referred to gave the court power to exclude the public or any part of the public. Certain statements would seem to imply that such was the case. As hereinafter indicated, we think the doctrine of those cases must be limited. In criminal causes the constitution neither classifies nor limits the public in its right to attend criminal prosecutions.
Were it not for the fact that two other matters were considered by the trial court and counsel in addition to the exclusion of spectators, the cause could well rest without further discussion. The statements made by the court and objections of counsel at the time of the making of the order excluding all spectators indicate they also had in mind Sections20-7-1 and 20-7-2, R.S.U. 1933, which read:
Sec. 20-7-1. "The sittings of every court of justice are public, except as provided in the next section.
Sec. 20-7-2. "In an action of divorce, criminal conversation, seduction, abortion, rape, or assault with intent to commit rape, the court may, in its discretion, exclude all persons who are not directly interested therein, except jurors, witnesses and officers of the court; and in any cause the court may, in its discretion, during the examination of a witness exclude any and all other witnesses in the cause."
It will be observed that the part of the latter section just quoted down to the semicolon following the word "court" must relate to civil actions. All of them except "divorce" are *Page 532 actions in tort for which recovery of damages may be had and cannot refer to criminal prosecutions without conflicting with the constitution. That part of the section following the semicolon, relates to "any cause" but in the discretion of the court "any cause" relates only to the exclusion of "any and all other witnesses in the cause," and only during the examination of a witness. This is what we think was intended by the legislature and avoids any constitutional conflict.
From statements found in the record, the court seems to have been under the impression that that part of the statute relating to criminal conversation, etc., referred to criminal prosecutions and included carnally and unlawfully knowing a female over 13 and under 18 years of age. The reference in the statute to "criminal conversation" does not either refer to nor include what is commonly referred to as carnal knowledge, and if it did it does not apply in a criminal trial.
Webster's New International Dictionary defines "criminal conversation" as being, "unlawful intercourse with a married woman" (considered as a tort) — a suit for damages by the injured husband against the adulterer. 1 Bouv. Law Dict., Rawle's Third Rev., p. 728, defines criminal conversation to be "adultery; unlawful sexual intercourse with a married woman," and further states: "The term is used to denote the act of adultery in a suit brought by the husband of a married woman with whom the act was committed to recover damages against the adulterer." Cases are cited substantiating such definition.
The expression "criminal conversation" as used in the section of the statute under consideration does not include carnal knowledge as used in the criminal code, and if it did it would not warrant the order excluding the public from attendance at the trial.
The fact that the order was later modified by advising relatives that they might return and the further fact that some of them did return could not affect the consequences *Page 533 of the error. The original order was carried out during a portion of the trial.
The refusal of the court to give the instruction requested and excepted to by Defendant was not error. Much of the language contained in the instruction is found in a statement of an admonitory character in the case of State v. Hilberg, 22 Utah 27,61 P. 215. The language there used had no reference to an instruction to a jury either requested or given. Some of the language is in the nature of a lecture upon the circumstances and conditions surrounding such acts and the difficulties of disproving them and the hardships that such difficulties present. There was no error in refusing the instruction as asked.
The order excluding all spectators was error and deprived the Defendant of a constitutional right to have a public trial.
The judgment is reversed and the cause is remanded to the trial court with directions to grant the Defendant a new trial.