The Birmingham age-herald., 1914-11-15
SUPREME COURT IF THE UNITED STATES FRANKS ONLY HOPE Georgia Supreme Court De- clines to Annul Death
 Sentence CONDEMNED MAN HEARS NEWS CALMLY Attorneys Will Endeavor to Get Case in Federal Courts-May Be Nee.
 essary to Institute Habeas
 Corpus Proceedings

Atlanta. November ia.-Annufirnent of
 the death sentence pronounced on Leo M. Frank for the murder of iz-ycar-old Mary shasan was refused here today by the
 supreme court of Georgia It was the sfxth
 time that legal efforts in Franks behalf
 had failed. Hope of saving tho life Of
 Frank. who was superintendent of A larxn
 lead pencil factory here. now rests in q
 possible appeal to the United states r,-
 prsme court. or an appeal to tho governor
 of Georgia to exercise clemeney. His counsel said late today that sn ins- mediate attempt would bs made to take the casa to the federal supreme court. Tho motion to set aside the verdict of guilty was based upon tho ground that Franks absence from the courtroom. when 1t was returned by the jury, was s violation of constitutional rights of the accused. Franks absence was suggested by Judge l.. s. Roan. who presided at the
 tria. He informed the attorneys for both the state and the defendant that he trial He informed the attorneys for both oner if a verdict of acquittal were re- turned with Frank in the courtroom. Counsel for Frank. with one exception. and the states attorneys. agreed to tho absence When 1t was decided to ask for an annullment of the verdict on that ground. Franks attorneys, who had agreed to the proposal issued brief, say ing that the defendant knew nothing of the plan for his absence. and did not give his consent. They announced, however, that since they had agreed to the plan
 they would not participate in the annull-
 ment appeal, and 1t was entrusted to ! other counsel.
 Lower Court Fully Upheld Previous 10 today's decision. Judge Benjamin II. Hill of the Fulton county superior court. had tvi5c refused to grant Frank new trials, and also had sustained ] the states demurrer to tho annuliment
 motion. Appeals to tho states highest court now hays resulted in the lower
 courts decisions being affirmed in every l instance. Today's decision was concurrsd | in by four of the i've supreme court jus tioes. The opinion, which was written by Associate Justice Warner Hill, held that ] the annullment motion could and should have been made in previous appeal of de- murrer for a new trial.
 Frank, confined in the tower here. re- | ceived the news of his latest reverse with calmness.
 Well, I had expected the court to be with me this tirne." was his only com ment
 l The prisoner was writing a letter when the news was brought to him | He listened to the announcement with out stopping his work and in a few
 minutes completed the letter and hand ed 1t to n friend. who was visiting him. | to mail
 l Commenting on tho right of the | court to produce the presence of Frank
 in the courtroom. the courts opinion | says:
 Who was better prepared to pro- tect the interests of the defendant | trained or experienced counselor tho
 defendant himself? True. he had the right to attend the trial in person. if
 he so desired, but the defendant had l committed his cases conduct to able
 and experienced counsel. who. in tho | exercise of their relation as attor- n.ys for the client. waived his right to
 be present. and having made tho plea, and defendant by his conduct having acquiesced therein. he should be bound by 1t.
 Method of Infinite Delay
 'It would be trifling with tho cour5 to allow one who has been convicted of a crime and who has made a mo- tion for a new trial on over a hun dred grounds, including the statement that his counsel had waived his pres
 ence at the reception of the verdict. and have the motion heard by both the superior and supreme courts. and aft | CT a denial by both courts of the mo-
 ton. to set aside the verdict. include materials which were, or ought to
 have been. included in the motion for a new trial"
 The state supreme court will have l to certify a writ of error in order to
 allow the case to be taken to the fed eral supreme court through the reg | uiar channels.
 If deemed advisable tho court has 1 the right to refuse. No intimstion has come from the court as to what course | It will pursue.
 | Lawyers. however. were much in-
 terested in the following paragraph of | the courts opinions:
 "We know of no provision in the constitution of the United States, or of
 this state, nor of any statute which | gives to an accused person a right to | disregard the rules of procedure In a | state which affords him due process Of law, and demand that he shall move | inf his own way and he granted ab- solute freedom because of an irreg- ctarity. If there is one. in receiving the verdict. If an accused person could n,ake some of his points on attack ,n | the verdict and reserve other points known to him. which he could then Il have made to be used subsequently, as grounds for further attack on the | verdict, there would be practically no end to a criminal case
 Attorneys for Frank tonight declined | to discuss what course would be fol- lowed should the state supreme court refuse to certify writ of error.
 It was reported. however. that should the court take such action. the de- fendant's counsel were considering ac- ton to obtain . writ of habeas corpus lin tho federal district court. and ou this writ attempt to take the case to the supreme court of the United
 states.