The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1915-04-20

JACK is the name or fiafrys dog and
he is about the third carrier ] have met
who owns a dog named Jack. That seem.
to be quite a popular name for the dogs
belonging to Age-Herald carrier .yys and
Harry says his dog is popular dog
Tomorrow; knder Evans. another
ono of those live wire Bessemer boys
He Is no exception to the rule of the
Besscmer carriers and In one of the
most interesting fellows ON the stan
ss''sssssssssssssssssssss
prisoners knowledge, is a regulation Of
criminal procedure that it is within the
authority of the state to adopt Since
the state may. without infringing ON the
fourteenth amendment abolish trial by
jury 1T may limit the effect to be giver
an error respecting one of the such in
cidents of the trial. The presence of tho
prisoner at the rendition of the verdict Is
not $" essential part of the hearing
that rule of practice permitting the
accused to waive it, and holding him
bound by the waiver amounts to de-
privation of due process of law.
The contention that the decision of
the supreme court of Georgia that Frank
had waived the point respecting his abb
sence when the verdict was rendered
amounted in effect to an eXpost facto
law because inconsistent with previous
decisions Of the same court is oVerruled
by this court, because assuming the in
cor sistency, the prohibition contained in
the constitution of the United States. No
state shall pass any bill of attainder,
eXpost facto law, or law impairing the
obligation of contracts as it's terms iri-
dicate is directed against legislative ac-
ton only and does not reach erroneous
or inconsistent decision by the courts
Justice Holmes based his dissent largely
upo" the ground that the finding of a
state supreme court about the existence
o. mob violence" at trial is not binding
on the United States supreme court He
said he saw no reason for adopting a
sterner rule in criminal appeals than in
civil appeals, and where questions of law
and fact are intermingled in civil cases,
as herein, the supreme court may re-
view a state courts finding of fact.
The single question in our mind" said
Justice Holmes, lis whether petition
alleging that the trial took place in the
midst of a mob savagely and manifestly
intent on a single result, is shown on
its face unwarranted by the specified
tons which may be presumed to set
forth the strongest indications of the
fact at the petitioners command
This is not a matter for polite pre-
sumption we must look facts in the
face. Any judge who has sat with
juries knows that in spite of forms
they are extremely likely to be i'm
pregnated by the environing atmos-
phere. And when we find the iudg-
ment of the expert on the spot remiss
of the judges decision it is our ousi-
ness to preserve not only form, but
substance, and to have that one jury
man yielded to any reasonable doubt
that he himself later expressed in court
as the result of most anxious DELHI
Grafton, neither prisoner nor counsel
would be safe from the rage of the
crowd, we think the presumptions
overwhelming that the jury responded
tc the passions of the mob.
"Of course, we are speaking only Of
the case made by the petition and
whether it ought to be heard Upon
allegations of this gravity in our opin-
ion it ought to be heard whatever the
decision of the state court may have
been and it did not need to set forth
contradictory evidences or matter o.
ebuttal, or to explain why the motions
for "a new trial, and to set aside the
verdict, were overruled by the state
court
There is no reason to fear an i'm
pairment of the authority of the state
to punish the guilty. We do not think
it impracticable In any part of thi.
country to have trials free from out
side control But to maintain this SUI
premacy that the law of the state am
the United States should be vindicateo
in a case like this. 1t may be on sc.
curing different complexion the judge
would hesitate on the alleged reques
on the ground of fear. But supposins
the alleged facts to be true, We ar.
of the opinion il they were before Tho
supreme court it sanctioned q situa
| ton upon which the courts of the Uni
ted States should act. and if for an,
reason they were not before the SUI
preme court, it is our duty to act upon
them now and to declare lynch law al
little valid when practiced by a regu
iarly drawn jury as when admins
on death"
Conclusion of Opinion
Justice Pitney's formal opinion of NOR,
than 10000 words length, concluded will
the following summary:
His allegations of hostile public senti
ment, and disorder in and about the court
room, improperly influencing the tria
court, and the jury against him, hav,
been rejected because of untruth hi poin
of fact as judged by presentation o
evidence in justifying the finding and h,
has not produced in the present proceed
ing his contention that his lawful right.
were infringed on because he was no
permitted to be present when the jur,
rendered its verdict. being set aside be
cause it was Waived by his failure t,
raise the objection in due season wher
fully cognizant of the fact
I'm all of these proceedings the state
through its courts, has retained Juris
diction over him, and accorded to hin
the fullest right and opportunity to b.
heard according to the established modes
of procedure and now holds him in Gus
tody to pay the penalty of the crime o
which he has been adjudged guilty.
I'm our opinion he is not shown t
have been deprived of any right guaran
teed to him by the fourteenth amend
ment or any other provision of the con
stitution. or laws of the United States
ON the contrary he has been convicted
and is now held In custody, under ''du
process of law within the meaning of tn
constitution.
THE judgment of the district court
refusing the application for writ 0
habeas corpus is affirmed"
Leo M. Franks legal fight for life ha
! taken a place among the celebrated mur
der cases Of recent years. Seven time
| since his conviction In August, 1913, tn
! lower and supreme courts of the state Q
! Georgia refused to grant Frank a ne'
| trial or to set aside the verdict; thre
l times the sentence of death was passe
upon him. and twice appeals were mad
: to the United States supreme court, til