New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-29
Justice Lamar Grants Plea
of Convicted Slayer of /
Mary Phagan.
POINTS RAISED
NEVER DECIDED
Execution Stayed Until
Novel Issues Presented
Are Settled.

Washington, Dec. %. The last chap
ter in the struggle of Leo VI. Frank.
OF Atlanta, to stay the penalty of con-
yiction for the murder Of Mary Phagan,
a factory girl, is yet to be written. As
sociate Justice Lamar, of the United
states Supreme Court, granted a writ
of error to-day directing that the rec
ord Of the proceedings by which Frank
was convicted be sent to the Supreme
Court for review. The action of JUS
tice Lamar was taken after two Of his
colleagues had passed adversely on the
plea made in Franks behalf
The issuance Of the writ automati-
cally stays the execution of Frank,
which was to have taken place on Jan
uary 22, and takes his case out of the
hands Of the inferior courts. Nothing
will be done in the way of melting out
the penalty for the crime Of which he
was convicted until the Supreme Court
has passed on his case.
Justice Lamar held in his opinion
that the rendering of the verdict when
Frank was absent from the courtroom
involved a constitutional question, and
that it was proper for the Supreme
Court 20 pass on the propriety Of the
pro ,eedings, in view of the fact that
the question had never been decided
by the federal courts. His action does
not. however, bind the court to con-
slider the merits Of the case. 1t may
conclude that the question Of the reg
ularity Of the proceedings is not for it
to decide. The appeal may be dis
missed by the court for want of juris-
diction, in which event Frank will find
no change in his plight.
Prompt Hearing Expected.
II is not probable that any time will
be lost in taking up the case. 1t is
expected that the authorities of the
State Of Georgia will submit petition
asking that it be advanced for hearing
when the court convenes. after the hol-
idays. II rs the practice of the court
to hear cases involving capital punish
ment az promptly as possible.
In the present proceeding Franks at
torneys argued 10 the federal court in
Georgia tna. he state courts in which
Frank had been convicted of murder
had lost jurisdiction over their client,
because he had not had fair trial and
had heer convicted in an atmosphere
of violence. They asked the Georgia
federal court 20 release Frank on a
hsbeas corpus writ. Justice Newman
fused. and declined to grant an ap-
.4i % the Supreme Court. Justice
l..nat's decision to-day permits mem
4. orinc their case up for hearing III
Is 1shir yton.
I,st.re Lamar said the application
fc tra a3peal presented an entirely
diF rent situation from the application
for A writ Of error, which he had de-
clincd 20 grant some time ago.
"The Supreme Court of the United
states has never determined said JUS
tice Lamar. whether on trial Tor
murder I'm n state court the due process
cla-se Of the federal Constitution
gaa rantees the defendant right to be
pr. ent when the verdict is rendered.
Points Never Decided.
Neither has it decided the effect OF
a final judgment refusing new trlai
in. a case where the defendant did not
make the fact of his absence when the
verdict was returned a ground OF the
motion, nor claim that the rendition
of the verdict in his absence was the
denial Of a right guaranteed by the
federal Constitution.
"Nor has it passed upon the ehect
of its oYn refusal 20 grant a writ OF
error i'm a case where an alleged lurls-
dictional question was presented IN
motion filed at time not authorized
by the practice OF the state where the
trial took place.
"Such questions are all involved in
the present case. and since they have
never been settled by any authorlta-
tive ruling by the full court, 1t cannot
be said that there is such want OF
probable cause as TO warrant the re-
ID