¶1The defendant was convicted of assault with intent to commit rape, and the case is brought here for review on a single exception. After the *229jury were sworn, the court excluded from the court room all persons not legitimately interested in the case, but announced that any friend or person that was connected or related to or interested in the defendant himself was not to be excluded; and, finally, in order to carry into effect the order, the court asked all the people to retire from the court room, and directed the officer in attendance to admit any who were relatives or friends of the defendant, and also permitted the representatives of the press to remain, the court saying: “I don’t propose to have the court room filled up with people here to embarrass witnesses in this case.” The final announcement made by the court was: “I have told the officer not to let anybody in here who is not either a friend of the complaining witness or of the defendant. He will ascertain that fact- as they apply for admission. All such people will be admitted, and the public will be kept out.” And the court directed the officer to see that that rule was enforced. In making this order, the court acted under the authority of Act No. 408, Local Acts 1893, § 18, which provides:
V Whenever it shall appear that, upon the trial of any cause, evidence of licentious, lascivious, degrading, or peculiarly immoral acts or conduct will probably be given, the judge presiding at such trial may, in his discretion, require and cause every person, except those necessarily in attendance thereon, to retire and absent himself or herself from the court room during such trial, or any portion thereof.”
¶2Whether this statute is effective must depend upon whether the trial provided for may be deemed a public trial; for, if such a trial as is provided for by the statute is not a public trial, the act is plainly in conflict with section 28 of article 6 of the Constitution, which reads as follows: “In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury.” This constitutional provision was under consideration in the case of People v. Murray, 89 Mich. 276, 290 (28 Am. St. Rep. 294). In an elaborate opinion, *230Mr. Justice Champlin, referring to the case of People v. Kerrigan, 73 Cal. 222, the case relied upon by the prosecution here, made use of the following language:
“ I cannot accede to the correctness of the proposition intimated in that case, — that, if a public trial has not been accorded to the accused, the burden is upon him to show that actual injury has been suffered by a deprivation of his constitutional right. On the contrary, when he shows that his constitutional right has been violated, the law conclusively presumes that he has suffered an actual injury. I go further, and say that the whole body politic suffers an actual injury when a constitutional safeguard erected to protect the rights of citizens has been violated in the person of the humblest or meanest citizen of the State. The Constitution does not stop to inquire of what the person has been accused, or what crime he has perpetrated; but it accords to all, without question, a fair, impartial, and public trial. There is no such limitation in the Constitution nor in our statute above quoted from which it can be inferred that ‘the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether. ’ Who is to decide who are the friends of the accused ? The law makes no such test, but allows all citizens freely to attend upon any trial, whether civil or criminal. Instances have been referred to by Judge Cooley, in his work upon Constitutional Limitations (5th Ed., at page 380 [star page 312]), where, under certain circumstances, it might be proper to exclude a certain portion of the community from attending trials which would tend to degrade public morals, or would shock public decency, in which he says that at least the young should he excluded. There can be no objection to this, so long as citizens of the State who have arrived at the years of discretion and manhood are permitted to enter freely. ”
¶3We are constrained to hold that the decision in that case rules the present, and that the order of the learned trial judge was unwarranted.
¶4The conviction will be reversed, and a new trial ordered.