The Birmingham age-herald., 1914-12-29
Famous Atlanta Murder Case Will Be Passed on by Highest Judicial Body of the Nation
SEEKS RELEASE
 ON X WRIT OF
 HABEAS CORPUS
If Court Decides Accused Is Entitled to Release, Doubt Arises as to States Power to Try Him Again

Washington, December 2s.--Iustice Lamar of the United states supreme court today granted an appeal from the refusal Of the federal district court for northern Georgia to release on ha- bcas corpus proceedings Leo NJ. Frank, under death sentence for the murder of Mary Phagan, the 15-year-old factory girl of Atlanta, Ga.
 Frank has been sentenced to be exc cuted January %, but Justice Lamars action causes a stay in the carrying out of the sentence Thirty days are given for the record of the proceedings in the lower court to be filed in the supreme court. Immediately after the filing, the state of Georgia may ask that the hear ing of the case be advanced. Such sug- gestions generally are granted.
 As result of Justice Lamar's action today the entire court now will pass upon Franks right to seek release from GUS tody on a write of habeas corpus on the ground that the trial coHt in Fulton county, Georgia, lost jurisdiction over him by it's failure to have him present when the jury returned it's verdict of guilty against him.
 Depends on Court
 Should the supreme court decide Frank was not entitled to the benefit of the habeas corpus writ, the state of Georgia would no longer be barred from imposing the death sentence Should the court de- eide he was entitled to ask for the writ, thus reversing Jadsa Newman ot the l lower court, the case probably would be remanded to the district court for the taking Of evidence in support of the peti- ton asking for the writ and in oppos- ton thereto Should the supreme court eventually decide that Frank must be re- leased from custody, it was said a further question, about which there Is uncertainty. would arise as to the power of the state to indict and try him q sec ond time.
 It Is said authorities differ as to whether the first trial would be regarded as hav- ing placed Frank In jeopardy"
 This was the second time Franks fate has rested in Justice Lamar's hands, After the Georgia supreme court had de- clined to set aside the verdict of convic- ton, Justice Lamar was asked to Issue q writ of error for the supreme court to review the case. He declined on the ground that no federal question was pre- scented, inasmuch as questions of proce- dure were for the states to decide. Jus tice Holmes and eventually the entire court pursued the same course.
 Newmans Position Application was then made in the Geor- gia federal court for Frank s release on a writ of habeas corpus. Judge Newman held Frank was not entitled to the writ and refused to grant an appeal to the supreme court because he was unwilling to issue certificate of probable cause as required in such appeals by u federal statute of 1908 Justice Lamar was then asked to grant the appeal and issue the certificate. He found that several uues- tions of federal law, unsettled by the su- preme court, existed in the case and hence gave rise to probable cause" for the ap- peal. These were whether the federal constitution requires an accused to be present when 8 verdict Is returned against him in a state court; the effect of the ae- cused not raising the point of his absence on motion for A new trlal. and the eff feet of the supreme courts own action in refusing to grant the writ of error in a case where an alleged jurisdictional ques- tion was presented in Il motion filed at a time not authorized by the practice of the state where the trial took place. Justice Lamar's complete statement in explation of his course in granting the appeal follows;
 Justice Lamars statement in full fol- lows:
 Leo Franks recent upplication for a writ of error was denied by me on tho ground that no federal question was in- volved in the ruling of the supreme court of Georgia mat his motion to set aside the verdict finding him guilty of murder had been filed too late. This petition presents q wholly different question since 1t is an application for the allowance of an appeal from the tContInued on Page TwoD