Journal of Criminal Law and Criminology Volume 30 Article 13 Issue 5 January-February

Winter 1940 Recent Criminal Cases

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Recommended Citation Recent Criminal Cases, 30 Am. Inst. Crim. L. & Criminology 778 (1939-1940)

This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. RECENT CRIMINAL CASES

Edited by the IEGAL PmLICATIONS BOARD NorrHwEsTERN UNIVERSITY SCHOOL OF LAW

EDMUND G. PABST, Case Editor LEONARD Sm.Pino Associate Editors JOSEPH NTras 5L"

PARDONS AND HABITUAL CaMINAL mit the introduction of evidence for STATUTES-CONFLICTS OF CMNAL which a man had been pardoned, in LAws.-[Federal] A pardon does 9ny subsequent proceedings what- not have the effect of mullifying a soever. In answer to that conten- conviction of crime so far as habitual tion Circuit Judge Stephens, writ- criminal statutes are concerned, ac- ing the opinion in the instant case, cording to the holding of the United said (supra, 313): "It may be true States Circuit Court of Appeals in (we do not so hold) that the Texas Groseclose v. Plummer, 106 F. (2d) pardon law goes all the way and 311 (C. C. A., 9th, 1939).. The case prohibits the Texas courts from came before the court on an appeal giving any consideration to a par- from the United States District doned offense. Yet such a law Court in California, which denied could not turn back the hand of appellant's petition for a writ of time long enough to delete an act- habeas corpus. Appellant had been ualit - from its long course. It still convicted in California and sen- remains true that petitioner was tenced to the state's prison as an the subject of two prior final con- habitual criminal. The conviction victions when the law of California had been affirmed by the Appellate overtook him in the commission of Court (People v. Biggs et al., 65 P. another felony. Notwithstanding (2d) 75 (Cal. App., 1937) and by the Texas pardons, the stubborn the Supreme Court of California, fact remains that the habit of crime People v. Biggs, 9 Cal. (2d) 508, was upon him. The executive clem- 71 P. (2d) 214 (1937). ency of one state could not, under Petitioner contended in the state the law of such a state, prevent a courts and in the Federal court that sister state from taking cognizance two of the three felony convictions of plain facts, and from applying its on which the finding of habitual police laws to them." (Italics sup- criminality was based were convic- plied) tions in Texas for which he had The holding of the California been pardoned by the executive; court in refusing to treat the par- further that Texas law did not per- dons as a bar to the consideration

[778] CRIMINAL CASES

of the two prior convictions was in of which are in question, and not line with an earlier decision of the the law of the forum in which his California District Court of Ap- rights may afterwards be brought peals, People v. Sheridan, 16 Cal. into question." Stimson, Conflicts App. (2d) 476, 60 P. (2d) 870 (1936). of CriminalLaws (1936) 4; cf. Beale There the court sustained the con- Conflicts of Law (1916) §73. Fol- viction of a man, convicted as an lowing this principle, it could be habitual criminal, despite prior argued that the California forum California pardons. (and the Circuit Court of Appeals) Texas, on the other hand, gives a should have allowed the rule of the broad construction to the pardon Texas forum to govern, and the and refuses proof of conviction to conviction be set aside, since the be made in any case where the defendant's prior convictions were felon is subsequently pardoned. In for acts committed in Texas. the case of Scrivenor v. State, 113 Opposed to this position is the Tex. Cr. App. 194,20 S. W. (2d) 416 more realistic approach to the prob- (1928) the court reversed a convic- lem of conflicts tacitly adopted by tion for a second offense in robbery the court in the instant case, which because the appellant in that case holds that when the public policy had been pardoned by Governor of a state is in question, the do- Miriam Ferguson after the first mestic forum may apply its own conviction, and hence could not be laws. This view is upheld by many a second offender. In that case students of conflicts of laws and Judge Lattimore (supra, at 416) finds succinct expression in the cited 20 R. C. L. §§40,41: "'In case of words of Professor W. W. Cook (40 full pardon, it relieves the punish- W. Va. L. Q. 303 (1934) at p. 328): ment and blots out of existence the "If, on the other hand, the emphasis guilt of the offender to such an ex- is shifted primarily to the preven- tent that, in the eyes of the law, he tion of conduct regarded in the is as innocent as if he had never given state as anti-social, and if, in committed the offense,"' and further connection with this, the segrega- observed, ". . . in our judgment the tion of the offender is regarded in learned trial court was in error in large part from the point of view allowing proof of the former con- of reclaiming the 'criminal,' the viction of this appellant and in per- place in which the 'crime is com- mitting the same to be used to se- mitted' at once comes to assume cure a greater penalty, when it was less importance. The enforcement shown that he had been granted a of the criminal becomes to a con- full pardon therefore." siderable degree a means of select- With the Texas law as stated by ing persons in need of remedial Judge Lattimore, the United States treatment, or of permanent deten- Courts and the courts of California tion where 'cure' is impossible." were in opposition to the general Returning to the question of the proposition of the conflicts of crim- effect of pardons in general, a study inal laws, as stated by Professor of the decisions from other juris- Stimson: ".... the law applicable dictions shows a varying attitude. to aii individual is the law to which By means of treaty construction, he was subject at the time of the the United States District Court acts or omissions, the legal effect found that one pardoned by the 780 CRIMINAL CASES

King of Prussia could lawfully enter In re Egan, 52 S. D. 394, 218 N. W. 1 the United States, Hempel v. Wee- (1928) ; Commonwealth ex rel Harris den, 23 F. (2d) 949 (D. C. W. D. v. Porter, 257 Ky. 563, 78 S.W. (2d) Wash., 1928). The court, however, 800 (1935); State v. Snyder, 136 stated that Congress could disre- Fla. 875, 187 So. 381 (1939). A gard the effect of a foreign pardon woman convicted of manslaughter wiping out conviction in that state, in Washington and subsequently and deny admission. The court also pardoned was denied the right to suggested that it would not be regain her license to practice the bound to treat all pardons from all art of healing. State v. Hazzard, states as it did the one from Prussia. 139 Wash. 487, 247 P. 957,47 A. L. R. The states in general treat convic- 538 (1926). The court in that case tions as restoring civil rights but answered the suggestion that a not privileges or licenses. In Okla- pardon by the governor should be homa, for example, a pardoned treated as a finding of innocence, felon was permitted to be a candi- saying that to ask the court to be- date for the legislature, State ex rel lieve that even a bare majority Cloud v. Election Board of State of were pardoned because they were Oklahoma, 169 Okla. 363, 36 P. (2d) innocent was to ask the court "to 20, 94 A. L. R. 1007 (1934). However, assume that which we all know to the appellate division of the Su- be untrue." preme Court of New York held that It would seem that the Circuit while civil disabilities were re- Court of Appeals took the better moved by full pardon, the pardoned course in denying the appeal to person was still a convicted criminal release Groseclose. The courts are (Beck v. Finigan, 3 N. Y. S. (2d) to be commended when they treat 1009, 254 App. Div. 110, aff'g 298 a pardon as opening the way to re- N. Y. S. 675) and upheld the civil habilitating a man and permitting service commission of New York him to resume his place in society. city in denying a position to one It is highly offensive to any sense whose record bore a conviction. In of social policy to demand that the Georgia a policeman, discharged court overlook the first offense for from his job by reason of a felony which he has been pardoned when conviction, felt aggrieved when he he is caught later in some rascality. was not restored to his former po- The gist of the rationale behind sition upon pardon. The court told the case is well put by Judge him the pardon restored him to all Stephens, "... a law could not civil rights but could not restore turn back the hand of time long him to office. Morris v. Hartsfield, enough to delete an actuality from 186 Ga. 156, 197 S. E. 281 (1938). its long course . . . the habit of The right to practice medicine or crime was upon him." law is in a class of special license Jom L. DAVIDsON, Jr. in so far as restoration by pardon is concerned. Anyone who would PROMISE OF IMMUNITY FROM be re-admitted to the practice of PROSECUTIO.-[Ill.] Defendants law or even halt disbarment pro- were indicted for conspiracy to de- ceedings may not rely solely upon fraud the state of money due it executive clemency as a grounds under Motor Fuel Tax Act. The for restoration to his profession. state's attorney promised the de- CRIMINAL CASES fendants immunity from prosecu- The holding in the instant case tion if they would settle claims sanctions a prosecutor's agreement against them. The court approved with the accused-approved by the this agreement and allowed the trial court-wherein the latter prosecutor to withdraw the indict- promises reparation for the crime ment with leave to reinstate. The in consideration for a promise not defendants fulfilled all the terms of to prosecute. If the defendant ad- the agreement by paying large heres to his agreement he has a sums in open court and surrender- valid defense against a subsequent ing their license to do business. trial. Notwithstanding this agreement The Illinois legislature has given the defendants were subsequently to the court the power to grant indicted for the same offense and immunity to witnesses testifying in convicted. On appeal it was held grand jury investigations or at that the People, having reached an trial, in cases involving bribery or agreement with defendants, were attempted bribery of public offi- bound to live up to it. People v. cials. A prerequisite to the exer- Johnson et al, 372 Ill. 18. 22 N. E. cise of this power is that the wit- (2d) 683 (1939). ness be material and the testimony This case appears to increase the offered self-incriminatory. [Smith- power of the state's attorney in Hurd Illinois Ann. Stat., Ill. Rev. granting immunity from prosecu- Stats. (1937) c. 38§82. Ch. 38, Sec. tion in a form binding on the state, 82.] In light of the statutory if made with the consent of the principle "expressio unius est court. This rule derives from and exclusio alterius" it would ap- expands the doctrine established in pear as though the Illinois courts the Bogolowski cases. People v. have assumed a power which the Bogolowski, 317 Ill. 460, 148 N. E. Legislature has not seen fit to grant 260 (1925); id, 326 Ill. 253, 157 N. E. them. That is, since the legislature 181 (1927). In these cases, a wit- has declared that an immunity be ness turned state's evidence in con- granted in bribery cases, the legis- sideration for a promise of im- lative intent would appear to pro- munity made by the prosecutor. hibit these agreements in other Irrespective of this promise, the criminal situations. Thus a statu- witness was subsequently tried tory predicate cannot be found to without being permitted to with- justify the holding in the Bogolow- draw his original plea of guilty. ski or the instant case; and at On appeal, the Supreme Court common law, agreements, as in- ruled that in such circumstances volved in the present case, were the defendant should be allowed to not recognized. See Lord Mans- withdraw his plea. Upon retrial field's opinion in Rex v. Rudd, 1 and conviction, the defendants Cowp. 331 (1775). This doctrine again appealed, this time asserting established by this case presently the promise of immunity as a bar obtains in England. 14 Am. Juris. to prosecution. The court accepted 844, §115. this view and held that the state's The procedure here involved is attorney, having power to grant not to be confused with a nolle immunity, bound the state by his prosse, which in Illinois, is no bar promise. to a subsequent prosecution. People CIUMINAL CASES

u. M Ginuis, 234 l. 68, 84 N. E. 687 inequitable to prosecute individuals (1908); O'Donnell v. People, 224 Ill. who have gone through the hard- 218, 79 N. E. 639 (1906). The basis ships that the defendants have in of both the Bogolowski and the in- the situation presented by this case. stant case is the express promise It appears as though the Illinois not to prosecute; this consideration court was influenced more strongly is not present in the nolle prosse by the equities of the defendants, cases. and consequently, in its desire to The majority of courts hold that aid them, upheld their agreement an immunity agreement, even if with the state's attorney. made with the consent of the trial DArN= G. LEVI. court, is not binding on the State. At best, it creates only an equitable REcOIMMsATIONS FOR MERCY BY right to executive clemency. Wilson THE JunY.-[R. 1.] In a prosecution v. State, 134 Fla. 391, 184 So. 31 for "operating an automobile... (1938); Cortes v. State, 135 Fla. 589, so as to endanger life, resulting in 185 So. 323 (1938); U. S. v. Ford the death of another . . ." the trial (whiskey cases), 99 U. S. 594 judge told the jury, in response to (1878), Ex Parte Irvine, 74 Fed. 954 a question from the foreman, that (1896); Lowe v. State, 111 Md. 1, they could recommend mercy if 73 At. 637 (1909); State v. Guild, they found the defendant guilty. 149 Mo. 370, 50 S. W. 909 (1899). The judge refused to instruct the This is the same view that obtains jury that he could completely ig- in the English courts. 14 Am. Juris. nore the recommendation if he so 844, §115. Some states, however, wished. The Supreme Court of recognize these agreements as bind- Rhode Island held that it was error ing if the consent of court is had. for the judge to fail to instruct the Morrison v. State, 49 Okla. Cr. 369, jury that he could disregard their 294 P. 825 (1931); Camron v. State, recommendation for mercy, but be- 32 Tex. Cr. 180, 22 S. W. 682 (1893); cause of the weight of evidence it Dollar v. State, 92 Tex. Cr. 254, 242 was not reversible error. State v. S. W. 733 (1922). The Illinois court Ruzzo, 7 A. (2d) 693 (R. I., 1939). in this regard occupies a distinct As to the first issue, some jurists position. It holds valid immunity contend that the sole function of agreements even if not made with the jury is to determine whether the consent of the court. People v. the accused is guilty or not, and Bogolowski, supra. In the instant that any other matter which might case, the court's consent was had, divert their attention from this but whether such consent would function is to be discouraged. State be a requisite to the validity of an v. Lunsford, 163 Wash. 199, 300 P. agreement to make reparations. 529 (1931). Under such a theory still remains a matter of conjecture. some courts have decided that when Once again is presented the prob- a jury returns with a verdict and lem of seeking a balance of equities also a recommendation for mercy. on one side and the words of the the jury is not responding solely statute on the other. Under the to the issues submitted to it, and criminal statute, the defendants that they must retire, reconsider should have been fined and im- the matter and bring in a verdict prisoned. However, it seems highly in the proper form, i.e., one with- CRIMINAL CASES 783

out any recommendation for mercy. In a number of states statutes State v. Godwin, 138 N. C. 582, 50 have been passed allowing juries S. E. 277 (1905); State v. McKay, to recommend mercy with a verdict 150 N. C. 813, 63 S. E. 1059 (1909); of guilty. N. M. Stat. (1929) §105- State v. Potter, 15 Kan. 234 (1875), 2226; Ga. Code (1933) §27-2501, 23 L. R. A. 725. In this manner, the 26-1302, 26-1304, 27-2302. Some of jury is to be closely held within these statutes, such as the Georgia the scope of its duty. People v. Lee, Code, declare that the judge must 17 Cal. 76 (1860). inform the jury that they can rec- Other jurists have held that, ommend mercy whether such in- though a recommendation of mercy struction is requested or not (John- "may be made and need not result son v. State, 100 Ga. 78, 25 S. E 940 in redeliberation by the, jury, the (1896)) and that although the rec- trial judge must at least tell the ommendation is not binding upon jury that any such recommendation the judge, it nevertheless consti- on their part can be disregarded by tutes a persuasive influence which the judge as so much surplusage might result in mitigating the (Commonwealth v. Zec, 262 Pa. penalty to be imposed on the ac- 251, 105 Atl. 279 (1918)), and that cused. Taylor v. The State, 110 Ga. failure to tell the jury would be 150, 35 S. E 161 (1899). Florida has error. State v. Keruan, 154 Iowa, held that the court, without request, 672, 135 N. W. 362 (1912); also see does not have to inform the jury 40 L. R. A., N. S., 239. that a majority of their number can The Supreme Court of Louisiana recommend the accused to the held, in State v. Sweat, 159 La. 769, mercy of the court where the statute 106 S. 298 (1925), that a court's state- allows the jury to make such recom- ment to the jury that a mercy rec- mendations. Garnerv. State, 28 Fla. ommendation would not be binding 113, 9 So. 835 (1891). The legal ra- on the courtbutthatthe court would tionale for such statutes is that the give consideration to such request jury may well find the accused in passing sentence, was not errone- guilty, but recommend mercy be- ous. The court cited no authority cause of ameliorating circumstances and its holding seems to have been in the case, or out of sensible unique. Moreover, this was decided sympathy for the culprit. The pur- before the Code of Criminal Pro- pose of the statutes may well have cedure was passed which changed been to allow flexibility in the the common law of Louisiana. That judicial machinery so that justice state now holds that the trial judge may be more easily obtained. must tell the jury that any recom- Unless the common law hai been mendation for mercy on their part changed by statute, by far the best can be disregarded by the judge practice to follow would be to allow and if the judge intimates or says the jury to make no recommenda- that he will give great weight to tions of mercy whatever. To tell the recommendations of the jury it will jury that they can recommend be reversible error, for the duty mercy might induce a verdict of of determining punishment rests guilty from the jurors on less evi-" solely with the judge. State v. dence than they otherwise would Doucet, 177 La. 63. 147 So. 500 have needed to convict the de- (1933). fendant. State v. Knight, 34 N. M. 784 CRIMINAL CASES

217, 279 P. 947 (1929). A mercy only vote for guilty if they could recommendation, at best. has but a recommend mercy. For instance. psychological affect upon a judge, where a jury was told that they and very often may mislead a jury could recommend mercy for a of laymen into believing, errone- prisoner on trial for his life, it ously of course, that the recommen- was held that as the jury or some dation might have some force. It is of them upon recommending mercy, more desirable that they concen- had agreed upon the instructions of trate all of their efforts on the sole the court and as they might have issue of guilt or innocence. understood that the court had the Though holding error in the in- power to exercise clemency, it was stant case, the court deemed it prejudicial error to the prisoner. unprejudicial, in view of the theory State v. Matthews, 191 N. C. 378, that no error of court in perform- 131 S. E. 743 (1926). ing its duty in instructing a jury Failure to instruct the jury cor- can be overlooked or disregarded rectly should'be reversible error unless the error is of such a char- where the case is an obviously close acter that it clearly appears that one, but where there is a pre- the error could not have affected ponderance of evidence against the the verdict of the jury. This is defendant and where failure to in- especially true where the case isn't struct the jury correctly merely close, People v. Fox, 269 Ill. 300, 110 resulted in a mercy recommenda- N. E. 26 (1915); see also Moore, tion arising out of sympathy for the Ill. Cr. Law and Procedure (3rd guilty criminal rather than doubt ed., 1932) §1394. And where a case of his guilt, the verdict should not is not close, a recommendation for be disturbed. mercy does not necessarily show TBE "RicEr' TO A PUBLIC TRIAL. that there was a doubt in the minds -[Utah] Defendant was on trial of the jurors as to the guilt of the for carnally knowing a female be- accused. State v. Arata, 56 Wash. tween the ages of 13 and 18 years. 185, 105 Pac. 227 (1909). After the jury was sworn and the On the other hand, in cases information xead, including defend- where the evidence is conflicting ant's plea of not guilty, the State or contradictory and where the in- moved to exclude spectators from structions are inaccurate, a new the court room. Over defendant's tr:al will be granted if there is objection, the court made the fol- enough evidence favorable to the lowing order: "The motion to clear defendant to raise a reasonable the court room is granted, and the doubt whether the jury would have motion of the State to invoke the returned such a verdict if prop- exclusion rule is likewise granted. erly instructed. Steinmeyer v. Peo- With the exception of all witnesses ple, 95 Ill. 383 (1880); Chambers v. the Court at this time orders the People, 105 Ill. 409 (1883). Some courtroom cleared. Spectators will courts hold that if a jury asks a please leave the courtroom." It judge whether they can recommend was apparent from statements and mercy, that the question is usually objections made that the court and asked only when one or several of counsel had in mind Sections 20-7-1 the jurymen are doubtful as to the and 20-7-2, revised Stat. Utah 1933, accused's guilt and that they would which read: CRIMINAL CASES 785

Sec. 20-7-1, "The sittings of every guaranteed by the 6th Amendment court of justice are public, except to the Federal Constitution and by as provided in the next section. most, if not all, of the state con- Sec. 20-7-2, "In an action of stitutions. These guarantees, like divorce, criminal conversation, se- others found in the Bill of Rights, duction, rape, or assault to commit owe their existence to the manifest rape, the court may, in its discre- abuses prevalent in the English and tion, exlude all persons who are not colonial courts of that time. In directly interested therein, except light of the criticism which has jurors, witnesses and officers of the been leveled against the govern- court; and in any cause the court ment, the courts, and many ad- may, in its discretion, during the ministrative tribunals for the examination of a witness exclude alleged denial of those rights, the any and all other witnesses in the question of defendants right to cause." In passing, the ambiguity a public trial holds renewed inter- as to the dual meaning of "wit- est. The problem seems to be one ness" as used here needs some of balancing the conflict between clarification. From the context of the court's inherent power to con- the section it appears that wit- duct the trial in a manner within nesses as last used is not synony- its own discretion against the de- mous with spectators in the court- fendant's guaranteed right. People room. v. Hall, 51 App. Div. 57, 64 N. Y. The trial court's conviction of de- Supp. 433 (1900). The question has fendant was reversed on the ground not often been litigated and a search that that part of Sec. 20-7-2 before of the cases indicate divergent the semi-colon applied to civil views which make generalization actions and the part after the semi- difficult. colon applied to "all other causes," Since the 6th Amendment to the including criminal prosecutions and Federal Constitution applies only limited the court in its exclusion to to offenses against the federal gov- any and all other witnesses, not ernment (Gaines v. State of Wash- spectators, in the cause. In addi- ington, 277 U. S. 81 (1928)) the tion it is limited to exclusion of decisions must depend in each case witnesses only during the taking upon the particular state constitu- of testimony from a particular wit- tions of statutory provisions in- ness. Under this construction the volved. Some states, such as trial courts order excluding all Alabama, Idaho, Montana, Utah spectators throughout the course of and Wisconsin, for example, have the trial was error and deprived statutes in addition to constitu- the defendant of his constitutional tional provisions concerning de- right to have a public trial. State v. fendant's right to a public trial. Beckstead, 88 P. (2d) 461, 96 Utah They are generally confined to cer- 528 (1939). tain civil actions, different in each This raises the general inquiry state, and to the sex offenses of into how far and in what situations rape or assault with intent to com- the courts may exercise their dis- mit rape. In one instance, Wiscon- cretion to exclude spectators from sin, the court's discretion is the courtroom. The right to a pub- limited to the exclusion of minors lic trial in all criminal cases is during the conduct of such trials. 7N6 CRIMINAL CASES

These statutes give the court a wide Thus, when there is an influenza range of discretion and seem to be epidemic raging in the community merely declaratory of the common the court validly exercised its exclu- law rule permitting the trial judge sion power when on its own motion to use his free discretion as to the spectators were excluded from the exclusion of witnesses and specta- courtroom in persuance of the tors. court's police power to protect the In the application of the court's general welfare and the public right to exclude spectators the ma- health. Likewise, it is generally jority of courts have held that it said, the court may exclude specta- has been within the "inherent tors when the testimony to be heard power" of the court to so regulate will be "vulgar, lewd, or obscene," admission to the courtroom that and those in attendance likely to the proper administration of justice be present for mere prurient curi- would not be interfered with. osity. Cooley, 1. Const. Lim. 647 Bloomer v. Bloomer, 197 Wis. 140, (8th ed. 1927); State v. Callahan, 221 N. W. (1928). The court in 100 Minn. 63, 110 N. W. 342 (1907) Cholia v. Kelty, 155 Ore. 287, 63 P. but the court may also exercise its (2d) 895 (1937) interpreting this police power in the interests of a common law principle said "that witness, as well as a spectator; thus the manner of conducting the trial in Commonwealth v. Principatti, rests solely in the sound discretion 260 Pa. 587, 104 Atl. 53 (1919) it of the trial court." Thus, in the was held that the court could ex- interests of an orderly administra- clude all other persons of the same tion of justice, it has been held, race as the witness on his claim that when the courtroom is com- that he feared reprisals as a result fortably filled it is not a denial of of the testimony that he was about a public trial to exclude spectators to give. by denial of entry to the court- Where the court has abused its room. People v. Greeson, 230 Mich. discretion in excluding spectators, 124, 203 N. W. 141 (1925). Like- the defendant must, of course, ob- wise, in one jurisdiction, the prose- ject in the trial court if he wishes cuting attorney with the sanction to avail himself of this error' on of the court under an order to ex- appeal. Thus it has been held that clude, took the names of all specta- the defendant may, if he so desires. tors of the sane race as the waive his right to a public trial, defendant, and in addition had them and that he waives the right by searched for concealed weapons. failing to object seasonably to the apparently to relieve the court of exclusion order, or by requesting the possible embarrassment of un- the order himself. People v. Swaf- expected violence and gun-play ford, 65 Cal. 223, 3 P. 809 (1894): during the course of the trial. Carter v. State, 99 Miss. 435, 54 People v. Mangipane, 219 Mich. 62. Sou. 734 (1911): State v. Keeler, 188 N. W. 401 (1922). 52 Mont. 205, 156 P. 1080 (1916). But the courts apparently have In Illinois the Supreme Court in also exercised their right to exclude People v. Harris, 302 Ill. 590. 135 on the basis of protecting the gen- N. E. 75 (1922) held that the right eral public, as well as for the may be waived, but that it may not orderly administration of justice. be taken from the accused without CRIMINAL CASES 787 his consent. Moreover, since the exclusion of those persos not nec- right to a public trial is guaranteed essarily in attendance will not de- the defendant by statutory or Con- prive the accused of a public trial. stitutional provision, its denial is State v. Johnson, 26 Id. 609, 144 P. presumed to be prejudicial. State 784 (1914). These cases poise the v. Hensley, 75 Ohio St. 255, 79, N. E. question also raised by Larsen, J. 462, 9 L. R. A. (N. S.) 277 (1906). in the instant ease, namely, what Consequently once the court finds number has the defendant a right that a public trial has not been to retain? In addition it presents had it is reversible error, regard- the problem of how the defendant less of how clear the defendant's shall choose, when the court has guilt may be. limited the number, between sister The exclusion order of the trial and brother, father or mother, or court in the instant case which close friend and associate. If these deprived the defendant of a public objections are held to bedetermina- trial was unlimited in scope and tive it would of course mean that was applied to all spectators pres- no order of less than complete ex- ent, including the defendant's rela- clusion would suffice, for any order tives and friends. The majority opinion makes much of this point of partial exclusion would bring and suggests that if the trial judge up the problem of degree. Appar- had employed a little discretion and ently, the ultimate solution of this had "allowed the defendant to re- problem must of necessity he left tain in the courtroom a reasonable to the discretion inherent in the number of relatives and friends of trial court. his own choosing" that would have It may be true, of course, that insured him a public trial. This then the very victim of the defendant's brings up the question of how wide- alleged conduct may "suffer such ly the judge may exclude. That the embarrassment and humiliation as exclude individ- court may always to cause a mental disintegration on uals who are guilty of unruly con- the witness stand," as the majority duct and boisterous laughter so as suggests. But, on the other hand, to interfere with the court .and con- fuse the witnesses is self evident. is it not also conceivable that the Grimmett v. State, 22 Tex. App. witnesses are more apt to be truth- 36, 2 S. W. 631 (1886). In one ful when confronted with the mem- jurisdiction the court exhibited the bers of the public in the courtroom, prevailing differences in interpre- some of whom may possibly call tation of the number excludable, attention to their derelictions from by holding that the trial judge the truth? In all, a sparing use of cannot widely exclude spectators. the discretionary power to exclude People v. Letoile, 31 Cal. App. 166, the public from the courts would 159 P. 1057 (1916), but a year later, seem advisable, and from a study in People v. Tugwell, 32 Cal. App. of the cases it appears that for the 520, 163 P. 508 (1917) held an order most part that power has been to exclude all but fifteen spectators carefully regarded by trial courts did. not deprive the defendant of his right to a public trial. In and lby reviewing courts on appeal. Idaho it has been held that the FRMMXIK AMMPrIT. CRIMINAL CASES

CORROBORATION AND CICmCMSTAN- ration where the prosecutrix' tes- TzLi EVImENCE n RAPE CASES.- timony is obtained through fear, [S. D.] In a recent case, State v. threats, coercion, or duress. Palmer Husman, 287 N. W. 30 (S. D., 1939) v. State, 7 Okla. Cr. 557, 124 P. 928 the defendant was convicted of (1912). The cases in the instant rape. The conviction was based on state, as do a majority of the states, testimony of the prosecutrix, a follow the common law rule that a minor, and circumstantial evidence conviction for rape may be had on consisting of certain metal particles, the uncorroborated testimony of alleged to have come from the de- the prosecutrix. State v. Fehr, 45 fendant's automobile as it passed S. D. 634, 189 N. W. 942 (1922). over a rock in the road at the scene Illinois follows the common law of the crime. The State did not rule generally, although there is relate this circumstantial evidence evidence that the Illinois courts to the defendant's automobile in may require corroboration where any way. The State Supreme Court there is a conflict of evidence or upheld the action of the trial judge testimony. People v. Polak, 360 Ill. in treating the question of the cir- 440, 196 N. E. 513 (1935); People v. cumstantial evidence as one con-, Nelson, 360 Ill. 562, 196 N. E. 726 cerning the weight of the evidence, (1935); People v. Burns, 364 Ill. rather than one concerning its 49, 4 N. E. (2d) 26 (1936). Also admissibility, and hence a problem see 26 J. Crim. L. 463 (1935). for the jury. The public policy in these states At common law, a conviction of which require corroboration of rape could be had on the uncor- prosecutrix' testimony to support roborated testimony of the prose- a conviction of rape would seem to cutrix, if such testimony was not look toward the further safeguard- contradictory, incredible, or inher- ing of those against whom this ac- ently improbable. Boddie v. State, cusation is easily made. In many of 52 Ala. 395 (1875); State v. Rash, the states which adhere to the com- 27 S. D. 185, 130 N. W. 91, Ann. mon law rule, the purpose of the Cas. 1913D 656 (1911); State v. rule (requiring corroboration) is Dachtler, 43 S. D. 407, 179 N. W. already completely attained by the 653, 60 A. L. R. 1131 (1920). By trial judge's power to set aside a statute, this rule has been changed verdict upon insufficient evidence. in many states. and under this power, verdicts are Illustrative of the various statu- constantly set aside in jurisdictions tory changes away from the com- having no statutory rule upon the mon law rule are Wisconsin, which same evidence which in other juris- requires corroboration where the dictions would be insufficient under prosecutrix' testimony is not most the statutory rule requiring cor- clear and convincing. Brown v. roboration. 4 Wigmore, Evidence State, 127 Wis. 193, 106 N. W. 536, (2d ed., 1923) §2061, 378. 7 Ann. Cas. 258 (1906); California, Beginning at common law there which requires corroboration where has developed in the field of evi- the prosecutrix' chastity is im- dence the "Original and Orthodox peachable, People v. Benson, 6 Cal. Rule," which recites that the er- 221, 65 Am. Dec. 506 (1856); and roneous admission or exclusion of Oklahoma, which requires corrobo- evidence, duly objected to, would CRIMINAL CASES 789 not be the basis for a new trial ticles in evidence. The majority of if the rest of the testimony is suffi- the court ignores this aspect of the cient to warrant the conclusion case as "undisputed." State v. Hus- which the jury reached. Rex v. man, supra, at 33. The trial court Ball, R. & R. 132 (1807). State v. considered the bits of metal, found Crawford, 96 Minn. 95, 104 N. W. on a rock in the road near the scene 822 (1905). An erroneous admis- of the crime eight days after the sion or rejection of a piece of evi- crime was committed, and also con- dence is not a sufficient ground for sidered the fact that the distributor setting aside the verdict and order- on the defendant's automobile was ing a new trial, unless, upon all broken on the same day; without the evidence, it appears to the judge further inquiry into the materiality that the truth has thereby not been of the metal particles, or its possible reached. Tinkler's case, R. & R. prejudicial effect on the jury, the 133 (1781). 1 Wigmore, Evidence, trial judge proceeded with the case, §21. over the defendant's objection. The As opposed to this Original and fact that the defendant objected in- Orthodox rule of evidence, there dicates the error of the majority opinion in treating the question as developed the so-called "Exchequer "undisputed." Rule," which regarded errors in The majority opin- the admission or rejection of testi- ion never reaches the stage of in- mony as good grounds per se for a quiry as to whether or not this reversal and the granting of a new error made in the court below trial, irrespective of the nature of should be a ground for reversal. the error. Rutzen v. Farr,4 A. & E. If inadmissible evidence is ad- 53 (1835); Wright v. Tatham, 7 A. mitted, or if improper argument be & E. 313 (1837); Rex. v. Gibson, 18 made of such a nature that it can Q. B. D. 537 (1887). This rule be said that the jury would have viewed evidence as an end in itself, decided substantially the same way and meant the automatic reversal without having seen such inadmis- of decisions not procedurally per- sible evidence or heard such im- fect, even though such variances proper argument, such error is said from the norm were unintentional to be harmless. State v. Nelson, and immaterial. The instant juris- 36 Nev. 403, 136 Pac. 377 (1913); diction adheres to the Orthodox State v. McGrath, 46 S. D. 465, 193 Rule, and provides for new trials on N. W. 60 (1923); State v. Williams, evidentiary bases, only when the 47 S. D. 68, 196 N. W. 291 (1924); substantial rights of the defendant State v. Keliher, 46 S. D. 484, 194 are prejudiced and when the evi- N. W. 657 (1923). Rex v. Teal, 11 E. dence is insufficient to justify the 153 (1809). Thus, where there is verdict. Compiled Laws, S. D. 1929, sufficient evidence to sustain the §4945. re-enacted in substance in conviction, independently of the the S. D. Code of 1939, §34.4002. evidence objected to, and admitted, not yet in effect when the instant the admission of such evidence does case was tried. not constitute reversible error. In the principal case, the dissent- But if there is a substantial ing judge spells out in detail the chance that a jury might decide the error that was made by the trial other way in a trial conducted court in admitting the metal par- without such erroneously admitted 790 CRIMINAL CASES evidence, and if it can be said that garded. Williams v. U. S., 265 F. such evidence influenced the jury's 625 (1920). In a case with as direct decision, as alleged in the principal a conflict of testimony as is pre- case, then a reversal and new trial sented in the instant case-where should be granted. It is thus the the State's case consisting of testi- duty of the court to reverse a con- mony of the prosecutrix and a viction where it is based on un- companion, both minors, was in satisfactory evidence, or where direct conflict with the testimony there remains grave and serious presented by the defense, and doubt of the guilt of the defendant where the very presence of the such as to lead to the conclusion defendant at the scene of the crime, that the verdict is the result of pas- and even in the county in which the sion or prejudice, and not that of crime was committed was rebutted the calm deliberation -that the law by the host of witnesses