The Washington times., 1915-04-19

judge before beginning his charge had
private conversation with the petit
toner's counsel in which he express
ed the opinion that there would be
probable danger of violence II there
should be an acquittal or a disgree-
ment, and that 1t would be safer for
not only the petitioner, but his coun-
sci, to be absent from the court when
the verdict was brought in.
AT the judges request, they agreed
that the petitioner and they should be
absent. and they kept their word.
When the verdict was rendered and
before more than one OF the jurymen
had been polled there was such a roar
of applause that the polling could not
go on until order was restored. The
noise outside was such that 1t was
difficult for the Judge to hear the
was only ten feet from them. With
these specifications of fact, the petit
tioner alleges that the trial was dom
mated by hostile mob and was moth
ing but an empty form.
we lay on one side the question
whether the petitioner could or did
waive his right to be present at the
polling of the jury. That question was
was raised by the application for
writ of error; and although after the
application TO the full court we thought
that the writ ought to he granted. we
ment that the presence of the prisoner
was required by the Constitution of the
United States. But habeas corpus cuts
through all forms and goes to the very
tissue OF the structure. 1t comes in
from the outside. not in subordination
to the proceedings, and although every
form may have been preserved, opens
the inquiry whether they have been
more than an empty shell.
The argument for the appellee, in
In a
court of competent jurisdiction: that 1t
retains jurisdiction, although. in fi.ct,
It may be dominated by a mob, md
that the rulings of the State court as
TO the fact of such domination cannot
be reviewed. But the argument seems
to us lncorclusivc. Whatever disagree
mont there may be as TO the scope of
tho phrase duo process of law there
tan be no doubt that 1t embraces the
fundamental conception of a fair trial.
with opportunity to be heard. Mob law
does not become due process of law by
securing the assent of Il terrorized jury.
We are not speaking of mere disorder
or mere Irregularities in procedure, but
of case where the processes of justice
are actually. subvertcd In such n case
the Federal court has jurisdiction to
issue the writ. The fact that the State
court still has it's general jurisdiction
and is otherwise a competent court,
does not make it impossible to find
that a jury has been subjected to in
timidation in a particular case.
Hostile Influence.
The loss of jurisdiction is not gen.
eral. but particular, and proceeds from
the control of hostile influence.
when such case is presented, ii
cannot be said, in our view, that the
State court decision makes the matter
res judicata. The State acts when by
its agency it finds the prisoner guilty
and condemns him. We have held in a
of tn hp
assertion of the Federal right in the
Federal court that the State has cor
rective procedure of its own--that stil'
less does such procedure draw to it.
self the final determination of the Fed
eral question. We see no season for a
less liberia rule in a matter of life and
death. When the decision of tho uucs-
ton of the, fact Is so interviewer with
tional right that the one necessarily in
wolves the other, the Federal court
must examine the facts
TO put an extreme case anw show
what we mean," if the trial and later
hearing before the Supreme Court had
taken place in the presence of an armed
force known to be ready to shoot IL the
result was not the one desired. We dc
not suppose that this court would ALLOW
itself to be silenced by the suggestion
that the record showed no flaw To &c
one step further. suppose that the trial
had taken place under such initmidatio
on writ of error had discovered no error
In the record, we still imagine that this
court would find sufficient one out.
side of the record, and that it would
not be disturbed in its conclusion by
anything that the supreme court OF the
State might have said.
Decided Question On One Side.
I'VE therefore lay the suggestion tha
the supreme court of the State has dis
of hn
judgment on one side along with tn,
appellants right to pe present II tn,
petition discloses facts that amount I,
a loss of jurisdiction in the trial court
jurisdiction could not be restored by an,
decision above. And notwithst and int
the principle of comfy and convenience
that calls for resort to the local ap
pelate tribunal before coming to tn
courts of the United States for wri
of habeas corpus, when as here, that re
sort has been In vain. the power to Sc
cure fundamental rights that had existed
at every stage becomes duty and mus
DO put forth.
The single question In our minds J.
whether a petition alleging that the tria
took place in the midst Of a mob say
agely and manifestly intent on a singl
result, Is shown on its race unwarranted
by the specifications, which may be pre-
sumed to set forth the strongest indica
tions Of the fact at the petitioners com
mand.
sumpuons; We must look facts in tn,
face. Any judge who has sat will
turies knows that In spite of form
they are extremely likely to be i'm
pregnated by the environing atmos
phere. And when we find the judgmen
or the expert on the spot, of the judg
whose business 1t was to preserve no
only form but substance. to have becI
that II one juryman yielded TO the rea
sonable doubt that he himself later eX
pressed in court as the result of mos
anxious elaboration, neither prisone
nor counsel would be safe from the rag
OF the crowd. we think the presumption
overwhelming that the jury RESPONDED
TO the passions OF the mob
Lynch Law In Court.
''Of course, we are speaking onIv o
the case made by the petition, anC
whether it ought to be heard Upon al
legations Of this gravity in our opinion
1t ought TO be heard. whatever the de
clsion OF the State court may have been
and il did not need to set forth con
Trajectory evidence, or matter of rebut
tai or to explain why the motions TO
n new trial and to set aside the verde
were overruled by the State court.
There Is no reason to fear an i'm
pairment OF the authority of the Stat
TO punish the guilty. We do not thinl
1t lmpraCtlCable in anN Dart of tbi