Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1915-04-20

or consenD, the Georgia court held !
that because Frank. shortly after the
verdict was made fully aware of the
facts and he then made 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 motion had
been fully adludicated against him,
move to set aside the verdict as null
lity because OF his absence when the
verdict was rendered This court
holds that there is nothing In the
fourteenth amendment TO prevent al
state from adopting and enforcing 80
reasonable a regulation of procedure
Justice Pitney said that the prae-
tice established in the Georgia courts
that defendant may waive ms ilsht
to be present when the jury renders
lis verdict lis within the authority OF
| the state to adopt.
| Tho presence OF the prisoner at
/ the rendition of the verdict he SAID
'is not so essential part of the
| hearing that rule Of practice per-
mittinw the accused 60 waive u anu
holding him bound by the waiver
umounts to a deprivation of due
process Of law"
Holmes Delivers Dissent.
Justice Holmes based hts dissent
llargeiy on the ground that the tnd-
Hing of the state supreme court OF the
/ existence of mob violence OF a trial
X not binding on the United states
supreme court as was held by tht
majority. lie said he saw no reason
for adopting sterner rule In Grim
inal appeals than In civil appeals
and held where questions of law ano
fact were intermingled in civil cases
as here. the United states supreme
court may review a state courts find
ing OF fact
"The final question in our mind,
said Justice Holmes, "is whether
petition alleging that the trial tool
place In the midst of mob savagel
{ aud manifestly Intent on a single re
0 suit. is shown on Its face unwarrant
q ed by the specifications. which ma
e be presumed to set forth the strong
= est indications OF the fact at the y,
titioners command This is not
e matter for polite presumption' "
r must look the facts In the face. An
K Judge who has sat with iuries know
g that In spite OF forms they are eN
j. tremely likely TO be impregnated i
n the envlroniag atmosphere. 2 An
/. when we find the Judgment of Oh
expert on the spot of the judge who's
;, business il was To preserve not on
g form but substance, to have bet
= that If one iuryman yielded to. II
$ reasonable doubt that he hirhse
a later expressed in court as the resu
@ Of most anxious deliberation, neith'
O. prisoner or counsel would be sa
T. from the rage of the crowd. We thin
d the presumption overwhelming thl
the jury responded to the passions
the mob
Petition should BE Heard.
m COT course we are speaking on
a of the case made by the petition, al
whether II ought TO be heard. UpC
y allegations of this gravity, in ol
% opinion, II ought to he heard, wha
a ever the decision of the state cou
y may have been.
" 1t may be on a hearing "A diffe
ent complexion would be given TO q
!, Judges alleged request aud EXPIRE
~ sion Of fear but. supposlng the .
! legged facts to he true. we are OF Z
opinion IL they were before the $
Y preme court 1t sanctioned situati
~ upon which the courts of the Unit
~ States should act. and II for any re
4. son they were not before the supreT
- court. II is our duty to act upon the
., now and to declare lynch law as lit
% valid when practiced by a regular
= drawn jury as when administered
> one selected by mob intent
death"