Counsel for movant seem to attach considerable importance to the allusion in the opinion to the fact that this point was raised by a motion for new trial, and that, as the Court of Appeals had stated that it was waived, we are reviewing said court upon a finding of fact. A careful consideration of the opinion will disclose *Page 4 that the allusion to the new trial was merely to give accuracy to the entire record. The question was raised by a motion for new trial, and not for the first time in the Court of Appeals. Whether in time or manner as to put the trial court in error for refusing to grant the motion, or whether or not it could be invoked upon a motion for new trial, not having been objected to before hand, we do not and need not decide, as an examination of the opinion will disclose that this court had held that this constitutional provision was not and could not have been waived; that it was like unto the right to trial by a jury in felony cases, and was unlike other questions and rights which could be waived. Again, the Court of Appeals did not base its conclusion upon a waiver, but upon the theory that the trial court had the right to exclude the crowd regardless of sections 6 and 169 of the Constitution, relying upon its Clemmons Case, which had been, in effect, approved by this court by a denial of the writ of certiorari. We did hold, however, and now hold, that the failure of the defendant to object to the action of the court in excluding the crowd was not a waiver of his constitutional right to a public trial. We think the Court of Appeals was wrong in the Clemmons Case, and that this court erred in approving it; and this opinion is intended to correct its own as well as the error of the Court of Appeals.
Application for rehearing overruled.
McCLELLAN, SOMERVILLE, THOMAS, and MILLER, JJ., concur.
SAYRE and GARDNER, JJ., dissent.