The precise meaning of the word "trial" has become material in the construction of statutes regulating appeal or error costs, criminal procedure, voluntary non-suits, the removal of causes and official fees. The trial was held to be used, not in its limited and restricted, but in its general, sense, in cluding all the steps of a criminal case from its submission to the court or jury to the rendering of the judgment ; Hotsenpiller v. State, 144 Ind. 9, 43 N. E. 234. In such a statute it includes as well an issue of law as an issue of fact ; Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40 ; but pleading is not a part of the trial ; it does not commence un til an issue of fact is joined, so that an error in overruling a demurrer is not an error in law occurring at the trial ; Mechanics' Say. Bank v. Harding, 65 Kan. 655, 70 Pac. 655; but it includes the impanelling of a jury;_ Palmer v. State, 42 Ohio St. 596; and com mences at last immediately after they are sworn ; Wagner v. State, 42 Ohio St. 537.
Within statutes authorizing extra allow ances, there is no trial where no issue is joined on the pleadings; Randolph v. Foster, 3 E. D. Smith (N. Y.) 648; but there was a trial where the plaintiff voluntarily submit ted to a non-suit after evidence had been tak en on both sides and the summing up was be gun; Allaire v. Lee, 11 N. Y. Super. Ct. 609. In a criminal case the trial does not include the arraignment and other preliminary pro ceedings before the jury is sworn; Com. v. Soderquest, 183 Mass. 199, 66 N. E. 801; Byers v. State, 105 Ala. 31, 16 South. 716 ; nor the holding to bail upon an examination ; State v. Gerry, 68 N. H. 495, 38 Atl. 278, 38 L. R. A. 228; it does not extend to the act of pronouncing a sentence ; Reed v. State, 147 Ind. 41, 46 N. E. 135.
Trial by certificate is a mode of trial al lowed by the English law in those cases where the evidence of the person certify ing is the only proper criterion of the point in dispute.
Trial by grand assize is a peculiar mode of trial allowed in writs of right. See As SIZE ; GRAND ASSIZE.
Publicity. To insure fairness a trial must be in public. Where an order was made to admit to a trial, where the testimony was known to be of a decidedly loathsome and disgusting character, none except jury, coun sel, members of the bar, newspaper men and one witness, it was held on appeal to infringe the constitutional right to "a speedy and public trial," and failure to protest at the time would not constitute a waiver of it, which could not be done by mere silence ; State v. Hensley, 75 Ohio St. 255, 79 N. E. 462, 9 L. R. A. (N. S.) 277, 116 Am. St. Rep. 734, 9 Ann. Cas. 108 ; People v. Murray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294; contra, State v. Callahan, 100 Minn. 63, 110 N. W. 342. The similar provision in the federal constitution is con tained in the 6th amendment, which is one of those held to apply only to the federal government and not to judicial proceedings in the state courts, and hence that require ment of a public trial is held to affect only the United States courts ; Spies v. Illinois,
123 U. S. 131, 166, 8 Sup. Ct. 22, 31 L. Ed. 80. The court may discriminate as to the unlimited admission into the court room of persons whose presence as a class, for any reason will endanger the security of the ad ministration of justice, or prevent the polic ing of the court; U. S. v. Buck, Fed. Cas. No. 14,680, 4 Phila. 161.
•In dealing with this question the courts have ranged in at least three classes their decisions authorizing exclusion: (1) Exclud ing all persons excepting jury, officers, de fendant and counsel ; Grimmett v. State, 22 Tex. App. 36, 2 S. W. 631, 58 Am. Rep. 630.
The trial court was justified in ordering the court room cleared because part of the au dience laughed and thereby embarrassed the witness, a girl of fourteen, and the testimony was of a vulgar or indecent character, or where the county attorney requested that ladies in attendance should leave the court room as he was about to refer to evidence unfit for them to hear ; State v. McCool, 34 Kan. 617, 9 Pac. 745 ; see note to State v. Hensley, supra, 9 L. R. A. (N. S.) 277. (2) In addition to the persons admitted in the first class,• permission was to the accused to name any special friends he desired to have present. As to sustaining this exclu sion there is conflict. In favor of it: People v. Hall, 51 App. Div. 57, 64 N. Y. Supp. 433 ; but in People v. Yeager, 113 Mich. 228, 71 N. W. 491, it was held that a statute was un constitutional in denying the right to a public trial which authorized the presiding judge to exclude persons from the court rbom who were not necessarily in attendance, where it appeared that evidence of licentious, lascivious, degrading or immoral acts or con duct would be given ; and in People v. Hart man, 103 Cal. 242, 37 Pac. 153, 42 Am. St. Rep. 108, an order excluding from the court room all persons except those necessary in attendance on account of the character of the testimony was held error. But it has been held that a public trial, when that word is used in the constitution, means not secret, and the right is not violated where all per sons were excluded except judge, jurors, wit nesses and persons connected with the case ; People v. Swafford, 65 Cal. 223, 3 Pac. 809. That a public trial does not necessarily con template that every person shall be enabled to gratify a morbid curiosity for indecent detail by being permitted to listen to the re cital of disgusting facts, see Benedict v. Peo ple, 23 Colo. 126, 46 Pac. 637. (3) To ex clude a part of the audience, consisting of children, court loungers, and the like. In supporting this degree of exclusion there are to be 'found only dicta in some cases, as in State v. Hensley, supra, and two authorita tive text writers; Cooley, Prin. Const. L. 320 ; Wigm. Ev. § 1834.