CATES, Judge.
The facts in this case are adequately stated in the dissenting opinion of the Presiding Judge to whom this case was originally assigned. The court is unanimous as to the correctness of his disposition of the second point, and all that he has thereabout so ably discussed is expressly adopted.
Where we have parted ways is upon the construction of the trial judge’s first order in this trial on a capital charge, i. e., carnal knowledge of a girl under twelve. Code 1940, T. 14, § 398.
Lang was arraigned November 26, 1958. .His trial began December 3, 1958, and the transcript shows that a venire of 100 men “was duly qualified by the court and attorneys in groups of twelve, and no exception was taken thereto.”
Before a jury was impaneled, the court declared a recess for lunch. Thereafter the record runs:
“A jury of twelve men being thereupon selected, same were duly sworn. The witnesses are brought around and sworn.
“Mr. Johnson: We would like to suggest to the court the invocation of the provisions of Title 168 of the Constitution of the State of Alabama in this matter for the trial of this case.
“Court: Gentlemen, all the other parties, witnesses and attorneys in the other cases, together with the other jurors may go now until 1:30 tomorrow. You can go now. All the other parties, witnesses and jurors.
“Mr. Johnson: It is Section 169, for the sake of the record.
“Court: All the other persons in the audience may be excused until 1:30 tomorrow. You may go now. All other persons in the audience may go now. (To colored: You up there. You are not witnesses. You can go.
“Mr. Johnson reads the indictment.” Our Constitution, § 169, provides:
“In all prosecutions for rape and assault with intent to ravish, the court [708]*708may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial.”
The Supreme Court has construed § 169 narrowly so as not to extend it to kindred crimes such as statutory rape. Thus, in Hull v. State, 232 Ala. 281, 167 So. 553, 554, we find:
“This defendant was indicted and tried under section 5410 [now Code 1940, T. 14, § 398] for having ‘carnal knowledge of any girl under twelve years of age.’ It may be true that this may be a kindred offense with rape, but this court in the case of Toulet v. State, 100 Ala. 72, 14 So. 403, held that the offense here involved did not constitute rape and we must assume that the framers of the Constitution of 1901, when adopting section 169 had full knowledge with the holding in the Toulet case, supra, and did not intend thereby to include any offenses save ‘rape and assault with intent to ravish.’
“Decency and propriety may suggest the same reason for excluding the crowd in trials of this character, but we feel foreclosed by the Toulet case, supra, from including this offense in section 169 of the Constitution.”
The collision between public trial and restraining pruriency is resolved in favor of open courts except only in the named cases of rape and assault with intent to ravish. Nor may a public trial be waived. Wade v. State, 207 Ala. 1, 92 So. 101.
On the record before us, it is clear that (1) the solicitor, citing § 169, asked the trial judge to clear the courtroom; and, (2) without any intervening event or colloquy, the judge, addressing the spectators, said, “You may go now.”
The reading of the indictment to the jury followed immediately after the judge’s order to clear the courtroom.
If jurors and witnesses (brought in by process) had been the only ones present, we should find no error in the imperative overtone in the judge’s announcement. But a reading of it, particularly, “All the other persons in the audience,” convinces us that, upon the solicitor’s motion, the judge thought the charge was rape rather than statutory rape.
The word “may” often means “must.” 1 Also, it is a habit of judges, probably going back to the fiction of the King being present at the King’s Bench, in dismissing persons in attendance to use the polite, “You may leave,” or “You may go,” instead of the blunt, “Get out,” or the quaint “Begone.” A nod of the head is enough to show finality, implying the sanction of a heave ho from the bailiff if the wish is not taken as a command.
Thus, from ’’can; may" in the Evans’s A Dictionary of Contemporary American Usage, we excerpt:
“ * * * may is also used to ask for or grant permission, as in may I come in ? Some grammarians claim that can should never be used in a sentence of this kind, since can asks about what is physically possible and not about what is permissible. Actually, this question takes us out of the realm of language and into the intricacies of politeness. Can is often used in place of may to suggest that the decision is not merely a personal whim but something based on objective facts.
“In refusing permission, you may not is felt to be disagreeably personal and dictatorial and you cannot is almost universally preferred. * * * In granting permission may is still used [709]*709occasionally, as in you may keep it till Friday. But most people now feel that it is more courteous, less autocratic, to say you can keep it till Friday. * * *”
Ordinarily a dismissal of a person at the bar returns the attendant to the status of an onlooker. So that, while he may not, unless an officer of the court, remain within the bar, he may stay in the general area of the room. Here, however, the court was addressing, “All the other persons in the audience,” i. e., all except witnesses and jurors in the instant trial. (Italics supplied.)
Liberty, though regained by violent conflict, is usually lost not by avulsion but rather through erosion. In the name of vindication many institutions and practices when employed by fair minded men have helped society.
So it was with the Court of Star Chamber under Elizabeth I. But under that “wisest fool in Christendom,” James I, this court became an infamous engine which Coke finally saw as one capable of destroying freedom. Little wonder the English Civil War ensued.
Again, too, when George III turned his back on the common law, it was no accident the American states and their general government insisted on written Bills of Rights. But a Bill of Rights would be but the hollow echo of a pamphleteer’s slogan were it not undergirded by such pragmatic pillars as the assurances of habeas corpus and of public trial.
Perhaps Lang, if tried again, will be convicted once more. He even runs the risk of being sentenced to die.
Be that as it may, our oath is one to uphold the purity of the faith in the Law. Thus, we should probably affirm the trial court if we were to apply the harmless error doctrine, as some courts do, so as to avoid a reversal where we decide that no reasonable jury could, on a consideration of the evidence, come to a different verdict.
However, particularly in capital cases (e. g., Neal v. State, 257 Ala. 496, 59 So.2d 797), speculation of what might be is ordinarily subordinated to substantial rights.
Free access — add to your briefcase to read the full text and ask questions with AI
CATES, Judge.
The facts in this case are adequately stated in the dissenting opinion of the Presiding Judge to whom this case was originally assigned. The court is unanimous as to the correctness of his disposition of the second point, and all that he has thereabout so ably discussed is expressly adopted.
Where we have parted ways is upon the construction of the trial judge’s first order in this trial on a capital charge, i. e., carnal knowledge of a girl under twelve. Code 1940, T. 14, § 398.
Lang was arraigned November 26, 1958. .His trial began December 3, 1958, and the transcript shows that a venire of 100 men “was duly qualified by the court and attorneys in groups of twelve, and no exception was taken thereto.”
Before a jury was impaneled, the court declared a recess for lunch. Thereafter the record runs:
“A jury of twelve men being thereupon selected, same were duly sworn. The witnesses are brought around and sworn.
“Mr. Johnson: We would like to suggest to the court the invocation of the provisions of Title 168 of the Constitution of the State of Alabama in this matter for the trial of this case.
“Court: Gentlemen, all the other parties, witnesses and attorneys in the other cases, together with the other jurors may go now until 1:30 tomorrow. You can go now. All the other parties, witnesses and jurors.
“Mr. Johnson: It is Section 169, for the sake of the record.
“Court: All the other persons in the audience may be excused until 1:30 tomorrow. You may go now. All other persons in the audience may go now. (To colored: You up there. You are not witnesses. You can go.
“Mr. Johnson reads the indictment.” Our Constitution, § 169, provides:
“In all prosecutions for rape and assault with intent to ravish, the court [708]*708may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial.”
The Supreme Court has construed § 169 narrowly so as not to extend it to kindred crimes such as statutory rape. Thus, in Hull v. State, 232 Ala. 281, 167 So. 553, 554, we find:
“This defendant was indicted and tried under section 5410 [now Code 1940, T. 14, § 398] for having ‘carnal knowledge of any girl under twelve years of age.’ It may be true that this may be a kindred offense with rape, but this court in the case of Toulet v. State, 100 Ala. 72, 14 So. 403, held that the offense here involved did not constitute rape and we must assume that the framers of the Constitution of 1901, when adopting section 169 had full knowledge with the holding in the Toulet case, supra, and did not intend thereby to include any offenses save ‘rape and assault with intent to ravish.’
“Decency and propriety may suggest the same reason for excluding the crowd in trials of this character, but we feel foreclosed by the Toulet case, supra, from including this offense in section 169 of the Constitution.”
The collision between public trial and restraining pruriency is resolved in favor of open courts except only in the named cases of rape and assault with intent to ravish. Nor may a public trial be waived. Wade v. State, 207 Ala. 1, 92 So. 101.
On the record before us, it is clear that (1) the solicitor, citing § 169, asked the trial judge to clear the courtroom; and, (2) without any intervening event or colloquy, the judge, addressing the spectators, said, “You may go now.”
The reading of the indictment to the jury followed immediately after the judge’s order to clear the courtroom.
If jurors and witnesses (brought in by process) had been the only ones present, we should find no error in the imperative overtone in the judge’s announcement. But a reading of it, particularly, “All the other persons in the audience,” convinces us that, upon the solicitor’s motion, the judge thought the charge was rape rather than statutory rape.
The word “may” often means “must.” 1 Also, it is a habit of judges, probably going back to the fiction of the King being present at the King’s Bench, in dismissing persons in attendance to use the polite, “You may leave,” or “You may go,” instead of the blunt, “Get out,” or the quaint “Begone.” A nod of the head is enough to show finality, implying the sanction of a heave ho from the bailiff if the wish is not taken as a command.
Thus, from ’’can; may" in the Evans’s A Dictionary of Contemporary American Usage, we excerpt:
“ * * * may is also used to ask for or grant permission, as in may I come in ? Some grammarians claim that can should never be used in a sentence of this kind, since can asks about what is physically possible and not about what is permissible. Actually, this question takes us out of the realm of language and into the intricacies of politeness. Can is often used in place of may to suggest that the decision is not merely a personal whim but something based on objective facts.
“In refusing permission, you may not is felt to be disagreeably personal and dictatorial and you cannot is almost universally preferred. * * * In granting permission may is still used [709]*709occasionally, as in you may keep it till Friday. But most people now feel that it is more courteous, less autocratic, to say you can keep it till Friday. * * *”
Ordinarily a dismissal of a person at the bar returns the attendant to the status of an onlooker. So that, while he may not, unless an officer of the court, remain within the bar, he may stay in the general area of the room. Here, however, the court was addressing, “All the other persons in the audience,” i. e., all except witnesses and jurors in the instant trial. (Italics supplied.)
Liberty, though regained by violent conflict, is usually lost not by avulsion but rather through erosion. In the name of vindication many institutions and practices when employed by fair minded men have helped society.
So it was with the Court of Star Chamber under Elizabeth I. But under that “wisest fool in Christendom,” James I, this court became an infamous engine which Coke finally saw as one capable of destroying freedom. Little wonder the English Civil War ensued.
Again, too, when George III turned his back on the common law, it was no accident the American states and their general government insisted on written Bills of Rights. But a Bill of Rights would be but the hollow echo of a pamphleteer’s slogan were it not undergirded by such pragmatic pillars as the assurances of habeas corpus and of public trial.
Perhaps Lang, if tried again, will be convicted once more. He even runs the risk of being sentenced to die.
Be that as it may, our oath is one to uphold the purity of the faith in the Law. Thus, we should probably affirm the trial court if we were to apply the harmless error doctrine, as some courts do, so as to avoid a reversal where we decide that no reasonable jury could, on a consideration of the evidence, come to a different verdict.
However, particularly in capital cases (e. g., Neal v. State, 257 Ala. 496, 59 So.2d 797), speculation of what might be is ordinarily subordinated to substantial rights. Moreover, the Alabama harmless error doctrine is expressed that the appellate court should affirm (1) when it is “satisfied no injury resulted,” or (2) unless the error “has probably injuriously affected substantial rights.” Code 1940, T. 15, § 389, second sentence, and Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
The meaning of the judge’s order here responds to the petition of the solicitor’s motion and was presumably obeyed. To say that the judge merely meant the spectators were at liberty to go is wholly unrealistic and a misinterpretation of his words. Certainly those persons not under restraint of legal process were already free to go without a “by your leave, sir” from the judge.
We cannot presume regularity in the face of the environment of the court’s order.
In the circumstances of (1) the solicitor’s moving the court to clear the courtroom under § 169 of the Constitution, (2) the indictment not having been read, and (3) the judge’s all embracing words, “All the other persons in the audience,” (twice spoken) “You may go now,” “You are not witnesses. You can go,” it seems to us, with all deference to our esteemed Presiding Judge that the inescapable, conclusion of a rational mind reading the record in context must be that the trial judge thought the charge was for rape and, therefore, mistakenly closed the courtroom. If he closed it then the presumption of continuity would tell us it was closed all during the trial.
Accordingly, the judgment below should be reversed and the cause there remanded for a new trial.
Reversed and remanded.