(dissenting).
The language of Article 764 of the Code of Criminal Procedure which permits the court to “modify its order in the interest of justice” when witnesses are excluded from the courtroom is intended, in my view, to permit a departure from the article’s mandatory requirements in this fact situation.
It would be patently unjust and contrary to fundamental principles of fair play and common sense to permit the defense to wait until all of the State’s witnesses had testified, and the defense witnesses in court had heard that testimony, and to then move for the exclusion of all witnesses— thereby denying the State's witnesses the opportunity to hear the defense witnesses testify. By this tactic the defense witnesses would have the distinct advantage, in refuting the State’s witnesses, of having heard them testify; whereas, the State’s witnesses would labor under a distinct disadvantage in refuting the defense witnesses, not having heard them testify.
I respectfully dissent.