Omaha daily bee., 1915-04-20
HOLDS LEO FRANK
HAD FAIR TRIAL

Continued from Page one)
OF mob domination or the like, The facts
were examined by those courts upon evil
dence submitted on both sides ana both
courts found Franks allegations to be
grouHdless. except with respect 10 a few
matters of irreguiarity not harmful 70
the defendant.
This court holds that such determi-
nation Of the facts cannot In this collat-
erai inaeiry ba treated as puIlity. but
must be taken a. setting forth the truth
of the matter until some reasonable
ground is shown for an inference that
the supreme court OF Georgia either was
wanting In Jurisdiction or committed error
In the exercise OF its jurisdiction. The
mere assertion by the prisoner that the
facts are other than the state courts upon
full Investigation determined them to be.
viii not be treated as raising an issue
respecting the correctness Of that deter
mination. especially not where the evi-
dence upon which the determination was
rested is withheld by him who attacks
the finding
Court Room Issue.
Respecting the fact that Frank was
not present in the court room when the
verdict was rendered (his presence hav-
ing been waived by his counsel but with
out his knowledge or consen). the Geor-
/ gia court held that because Frank.
shortly after the verdict. was made fully
aware OF the fact and he then made a
motion for new trial upon over 100
grounds. not including this as one. and
had that motion heard by both the trial
court and the supreme court. he could
not after this move had been finally ad-
Indicated against him. move to set aside
the verdict as a nullity because OF his
absence when the verdict was rendered
This court holds that there is nothing
In the fourteenth amendment 10 prevent
a state from adopting and enforcing SO
reasonable regulation OF procedure"
Justice Pitney said that the practice
established in the Georgia courts that a
defendant may waive his right TO be
present when the Jury renders its YER
diet rs within tho authority OF the state
10 adopt"
"rhe presence Of the prisoner at tho
rendition OF the verdict" he said. is not
so essential a part OF the hearing that
a rule OF practice permitting the accused
! to waive Il and holding him bound by
the waiver, amounts 10 deprivation OF
due process OF law"
!, DissentEnE OpiniOn.
Justice Holmes has his dissent largely
on the ground that the finding OF the
state supreme court on the existence OF
mob violence at a trial Is not binding on
the United states supreme court. as was
held by the majority. lie said he saw
no reason for adopting a sterner rule in
criminal appeals than In eivn appeals
and held where questions OF law and
fact were intermingied In civil cases, as
here. the United States supreme court
may review state courts finding Of
fact.
'-rhe single question In our mind" said
! Justice Holmes. rs whether a petition
{ alleging that the trial took place In the
! midst Of a mob savagely and manifestlS
/ intent on a single result Is shown on ia
1 face unwarranted by the specifications
: which may be presumed TO set forth tn,
. strongest indications OF the fact az IN,
: petitioners command. This is not
matter for polite presumptions: we mus
look facts In the face. Any Judge VIII,
: has sat with juries knows that IN spit
OF forms they are extremely likely 70 b,
. Iimpregnated by the environing atmos
Z phere. And when we find the iudgmen
!, OF the expert on the spot. OF the judg
whose business II was to preserve. no
. only form. but substance. TO have beel
. that II one juryman yielded 20 the rea
. sonable doubt that he himself later ex
y pressed IN court as the result OF mOs
: anxious deliberstion. neither prisoner no
counsel would be safe from the rage o
n the crowd, we think the presumption over
: whelnaing that the jury responded 90 th
y passion Of the mob.
Z "Of course. we are speaking only Of IN
case made by the petition, and whether 1
fought 10 be heard. Upon allegations Q