The evening herald. [volume] (Albuquerque, New Mexico) 1914-1922, 1915-04-19

absence when the verdict was rcn-
dcrcd This court holds that there u
nothing in the fourteenth amend
mont to precvnt a state from adopt
ing ana enforcing no reasonable a
regulation of procedure"
Justice Pitney sasd that the prnc-
ticc established In the Georgia courts
that n defendant may waive his right
to be present when the Jury renders
It's verdict rs within the authority vf
the state to adopt"
'rho presence OF the prisoner AZ
the rendition 20 the vcf<itvt." iie said.
"is not 10 essential a part of the
hearing shat a rule of practice per-
mitting the accused 10 waive II and
holding him bound by the waiver.
amounts TO a deprivation Of due
process OF law"
Justice Holmes based his dissent
largely on the ground that the nnd-
ing Of the state supreme court OF the
existence Of mob violence OF a trial
Is not binding on the United States
supreme court an was held BY the
majority He said he aRw no reason
for adopting "A Hcrncr rule la criin-
innl appeals than IN civil appeals.
and held where questions Of law and
fact were interminRled In civil cases.
as here. the United States supreme
court may review a state courts md
ing of fact.
'''rhc final question Ia nur mind
said Justice Holmes. "is whether a
petition alleging that the trial took
place In the midst OF a Inasb huvageiy
and manifestly intent On a single re-
suit. Is shown on Ne face Unwerrant-
cd by the specifications, which may
be- presumed TO set forta the strong
est Indications of the fact AZ the pc
titioncr's command. This Is not a
matter Tor polite prcsumptioni We
must look the facts IN the face. Any
Judge who has sat with inrics knows
that In spite of forms they are cx-
lrcmely likely 20 be impregnatcd by
the enyirdning atmosphere. And
when we find the Judgment Of thn
expert on the spot OF the Judge whose
business II was to preserve not only
/ form but substance. TO havo been
that II orc juryman yielded "a the
reasonable doubt that he himsclf
later expressed In court as the result
Of most anxious dcllbcration. neither
prisoner or counsel would be safe
from the rnge OF the crowd. we think
! the presumption overwhelming that
the jury responded 10 the passlOns
OF the mob
"or course we are speaking only
OF the ease made ~ the petition,
and whether II ought 10 be heard.
I Upon allegations of this gravity. in
our opinion, Il ought 10 be heard
whatever the decision of the state
court may have been.
IT may be on hearing q differ
cnt complexion would be given 20 the
/ judges alleged requcat and express
sion Of fear. But, supposing the 81
legged facts 20 be true, we are ot the
opinion n they were before the su-
preme court u sanctioned u situation
upon which the courts OF the United
states should act and n fof any rea-
son they we're not before tho su-
premo court. il Is our duty a. act
upon them now and 20 declare lynch
law az little valid whom practiccd hy
a rcguiarly drawn jury a. when adj
Iuiuistered by enc selected by mob
intent on death"
A Historic Tight for IAfe.
Leo NJ. Franks legal fisht for nfe
has taken a place among the cele-
brnted murder cases of recent years,
Seven times since his conviction iu
August. i9i3, the lower and duprcmO
courts of the state of GeorNla 20.
fused 10 grant Frank new trial oI
20 sct aside the verdict. three times
the sentence ~ death was passed
upon him and twice appeals wcfs
made 70 tho United States supreme
court. the first being unsuccessful
and the second resulting In the deci-
sion today.
The murder of lt-ycar-old AiarY
Phagan. a factory employe. of At
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