(dissenting). Till this case arose, it was never doubted, so far as I know, that a trial judge in New York may exclude the general public from “ sex trials ”. As Wigmore has written (6 Wigmore on Evidence [3d ed.], p. 338), it cannot be doubted that it is within the judicial power to exclude mere spectators because of the “ moral harm of satisfying pruriency in trials of certain crimes ”. In refusing to agree to a drastic change in that salutary and traditional rule, I can add little to the eloquent and earnest protest of the Appellate Division minority in this case, or to the clear and compelling statement of the law in People v. Hall (51 App. Div. 57 [1900]). The Hall case, and the predecessor of section 4 of the Judiciary Law, which it applies, are the whole of the New York law on this subject, they express an old and high tradition of judicial concern for public morality, and I see no ground or reason for refusing to follow them. The importance of the Hall case and of its cited authorities (Cooley on Constitutional Limitations [6th ed., published in 1890], p. 379, and Abbott’s Trial Brief, Criminal Causes [1st ed., published in 1889], § 157) is that they confirm, as of sixty-five years ago, what judges and lawyers have always taken for granted. Cooley wrote that “ the requirement [of a public trial] is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstand*69ing that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether”. Abbott put it this way: “ The exclusion by the court of all persons other than those interested in the case, where, from the character of the charge and nature of the evidence, public morality would be injuriously affected, does not violate the right to a public trial ”. So the Trial Judge here ordered that, while the People’s case was being presented, the general public and the press should be excluded, with permission “ to have present in the courtroom throughout the trial, any friends or relatives he deems necessary for the protection of his interests ”. Yet, this court (to the surprise of the Bench and Bar, I am sure) is now holding that the trial court, in following the settled precedents and the old, good customs, was dépriving this defendant of his fundamental right to a “ public trial ”. Thus it now becomes the law of New York that, in a case where filthy sexual episodes are to be described, it is the defendant alone, not the court, who has power to decide whether the prurient are to have free entrance to the show. This, I say, is in direct opposition not only to the Hall case (supra) and to the established practices of our courts in aid of public decency, but to the legislative exception (in Judiciary Law, § 4) from the “public trial” mandate, of “ cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation ”. From the “ proceedings and trials ” in all such cases, says that statute, “ the court may, in its discretion, exclude * * * all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court ”. We, nevertheless, are here holding that the Presiding Judge in this case committed error of law in barring all spectators except “ friends or relatives he deems necessary for the protection of his interests ”. What has become of the judicial discretion, legislatively declared in 1879 (L. 1879, ch. 210), in section 4? And what becomes of People v. Hall (supra), recognized everywhere as the law of New York (see Matter of Oliver, 333 U. S. 257, 272) ?
Nor am I able to understand the reasons or the reasoning which prompt this court to change the old rule. The majority opinion concedes that the public trial requirement is “ subject *70to the inherent power of the trial court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice ” (p. 63). Not only does the majority opinion concede to the trial bench that inherent and essential power, but it cites a number of situations which call for its exercise, such as insanitary conditions, overcrowding, disorder, or even the emotional disturbance of a witness. But, admitting that spectators may be dismissed because the courtroom air is physically polluted, we hold that moral pollution can never be prevented by the judge. We accept lesser reasons and reject the greater one. We say that the defendant may insist that the trial be open to every gaping sight-seer, but that a judge may not act in the interest of public morals by barring him out. And, strangest of all, we approve various implicit qualifications of the “ public trial ” rule, but refuse to accept as a reason for exclusion the only ground therefor which is expressly prescribed by a statute. We allow exclusions when there is no warrant therefor except general ideas of convenience and order, and forbid exclusions, on the ground of lack of statutory authority, in the very case where the legislation has authorized exclusion. And we do all this in a case where there is not even an effort to show that this defendant was prejudiced by the court’s refusal to admit spectators.
The judgment should be reversed, but, because the Appellate Division order was made “ on the law” the case should be remitted to the Appellate Division for its determination on questions of fact and discretion (Code Crim. Pro., § 543-a).
Lewis, Ch. J., Dye and Fboessel, JJ., concur with Fuld, J.; Desmond, J., dissents in an opinion in which Conway, J., concurs ; Van Voobhis, J., taking no part.
Order affirmed.