The Birmingham age-herald., 1915-02-27
Argument on Habcas Cor pus Motion Before the Su-
 preme Court Concluded
EXPECT NO DECISION
 FOR SEVERAL WEEKS
Argue That as Georgia Courts Have Passed on Mob Violence Charge It Is Open to Review Only
 by Writ of Error

Washington. February cs.--ArgU- courts decision refusing a writ of hs- hcss corpus to Leo VI. Frank. uuder dcnth sentence for tho murder of Mary Phsgnn. the Atlanta factory girl were concluded before the United ststes su- preue court today. A decision probably will not he given for at least several weeks.
 Should the supreme court affirm the decision of the northern Georgia fed oral court nothing would stand in the way of carrying out the death sentence. Frank and the state told the court the case must go back to the district court for the taking of evidence on which the ale gations for the petition for tho writ were based.
 The court was informed by Franks attorneys that should tho writ he granted Frank could be tried again under the pending indictment. The states counsel questioned this assertion.
 Louis Marshall of New York. on be- half of Frank contended that the trial court lost jurisdiction over the prisoner because of mob violence during tho trial and because of Franks absence. through coercion by the trial judge when the verdict was announced Both sides agreed that the truth of tho allegations of mob violence and of absence under coercion were not before the court. but remained for hearing by the lower court If tho court held. as a matter of law. assum- ing the allegations were true, that Frank was entitled to the writ. Notwithstand- ing this. both sides at times argued the truth of the allegations. until at. last Chief Justice White suggested to Solicit tor Dorsey that he wasting his time. Found No Disorder Attorney General Grice for the state. urged that Franks petition showed that i the question of mob violence had been passed upon by the trial court and by the Georgia supreme court and that both had found there had been no such dis order as interfered with Franks rights. "It is true that in the state courts Frank did not seek to draw the inferences from presenting petition for habeas corpus" declared Solicitor General Dorsey, in his argu- | ment on the same point. Both urged that the state courts having passed upon the point. a review by the federal court could not be had on a writ of habeas corpus but was open only to review by writ of error.
 As to Franks absence, Attorney Gen. eral Grice contended there was no coer- cion used by Judge Roan in keeping Frank and his attorneys from the court room. Only kind-hearted judge, In the most sympathetic way made a sug- gestion to counsel in private said he. Touching upon the same point Solicitor General Dorsey declared it was not until eight months after the trial and not until new counsel had taken hold of the case that the point of the prisoners being absent was raised as a E ound for setting aside the verdict.
 No Criticism of Judge
 At no time had it been complained that the alleged disorders had influenced the judge, but only that they had in- fiuenced the jury said MT. Dorsey. And with the object in view of having an
 
 end to litigation at sometime. the a,i- thorities agree that the writ of habeas corpus will not be issued unless tho rec ord itself shows there was a loss of juris- diction; an accused cannot withhold mak- ing a point of alleged infringed federal right until after tho state courts have passed upon his case and then make # in federal court when h asNs for writ or habeas corpus.
 MT. Dorsey concluded by citing cases to support his view that Frank could waive his right to be present when the jury returned it's verdict Ho said with the exception of suggestion by the late Justice Harlan there was no case holding the absence deprived a court of jurisdiction, all treating 1t as a mere IT, regularity reviewahle only by q writ of error. He claimed the statement by Justice Harlan was applicable only to cases arising in territorial or federal