Newark evening star and Newark advertiser., 1915-04-19
FRANK LOSES IN IN
SUPREME COURT
Continued from First rase)

adopt
"Since the State may, without in
fringing the fourteenth amendment,
abolish trial by jury. it may limit
the effect to be given to an error
respecting one of the such incidents
of the trial. The presence of the
prisoner at the rendition of the YER
dict is not so essential a part of the
hearing that rule Of practice per-
mitting the accused to waive 1t ana
holding him bound by the waiver,
amounts to deprivation of due
process of law"
Justice Holmes based his dissent
largely on the ground that the find
ing of the state Supreme Court on
the existence of mob violence at a
trial is not binding On the United
States Suprems Court, as was held
by the majority. He said he saw
no reason Tor adopting a sterner rule
in criminal appeals than in
civil appeals, and held where
questions of law and fact were
intermingled in civil CO ses, as here,
the United States Supreme Court
may review State courts finding
of fact.
Justice Holiness Dissenter.
1.-The single question in our mind" T"
continued Justice Holmes, rs wheth-
er a petition alleging that the trial
took place in the midst Of a mob,
savagely and manifestly intent on a
single result, is shown on It's face un-
warranted by the specifications
which may be presumed to set forth
the strongest Indications of the fact
at the petitioners command. This is
not a matter for polite presumptions;
we must look facts in the face. Any
Judge who has sat with juries knows
that In spite of forms they are ex-
tremely likely to be impregnated by
the environing atmosphere, and
when we find the judgment of the ex-
pert on the spot, of the Judge whose
business 1t was to preserve not only
form but substance, to have been
that IL one 1uryman yielded to the
reasonable doYbt that he himself
later expressed in court as the result
OF most anxious deliberation. neither
prisoner nor counsel would be safe
from the rage of the crowd we think
the presumption overwhelming that
the jury responded to 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
opinion, 1t ought to be heard, what
ever the decision of the State court
may have been, and 1t did not need
to set forth contradictory evidence or
matter of rebuttal, 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 rea-
son to fear an impairment Of the
authority of the State to punish the
guilty. We do not think 1t imprac-
ticable. In any part of this country,
to have trials free from outside con-
troll. But to maintain this immunity
it may be necessary that the su-
premacy of the law and of the Fed
erai constitution should be vindicated
In a case like this.
ut may be on hearing a different
complexion would be given to the
Judges alleged request and express
sion of fear. But supposing the al
legged facts to be true, we are of the
opinion if they were before the Su-
preme Court it sanctioned situation
upon which the courts of the United
States should act, and If for any
reason they were not before the Su-
preme Court 1t is our duty to act
upon them now and to declare lynch
law as little valid when practiced by
regularly drawn jury as when adj
ministered by one elected by mob
intent on death"
Justice Hughes wrote no opinion,
but concurred with Justice Holmes.
Leo M. Frank, young Jew, COL
lege graduate and married, whose
home had been in Brooklyn, N. Y,
was superintendent of the pencil
factory in Atlanta, where Mary Pha-
gan, the murdered girl, was en-
It'll tI,n
der, Frank was arrested on suspicion
and on May 5, Frank and a negro
watchman at the factory, Newt Lee,
were held by the coroner for the
Grand Jury's action. Lee subsequent
Iy was released. Sixteen days later
"Jim" Conley, a negro sweeper at the
factory, made confession to the po-
lice in which he accused Frank of
having killed the Phagan girl, and
declared he had helped dispose of the
body Conley, who was one of the
chief witnesses for the State at
Franks trial, was convicted as an
accessory after the murder in Febru-
airy, 1914, and sentenced to one year g
Imprisonment. He began his term
last July.
Frank was placed on trial in Su-
perior Court July 28, 1913, Judge L. S.
Roam presiding. Judge Roam died
March %, 1915, in New York. A YER
dict of guilty was returned August 25
Frank being sentenced to death. In
his statement to the jury at the close
of his trail Frank said he had seer
Mary Phagan In his office in the fac
tory, a few minutes before the time
the State contended she was muir
dered; that he paid the girl her
wages and that she left the office
The theory of the defence has beer
that Conley, who was about the
building when the girl entered, and
who had been drinking, attacked and
killed the girl after she left Franks
office.
In October, 1913, Franks attorney:
filed a motion for new trial, alleg
ing 103 errors in admission of testi
mony and conduct of the trial, anC
also charging that demonstrations by
the crowd within and outside thu
courtroom during the trial had inter
fered with a fair verdict. Judg'
Roam denied the motion and thu
Georgia Supreme Court affirmed hi
action February II, 1914. A motion
for rehearing of the appeal was de
MED by the State Supreme Court tw'
weeks later.
An extraordinary motion for new
| trial and a motion to set aside thu
verdict were filed simultaneously IL
Superior Court April 16, 1914 Amonl
the grounds alleged in the motion TO
a new trial was that of newly dis
covered evidence. The motion to Sc
aside the verdict was based on tn
ground that Franks constitutions
rights had been violated by the tria
court. His attorneys alleged tina
| Frank had not been given fair tria
because of the spirit of mob violenc
that prevaded the court ROOM" an
also that his constitutional rights ha
been violated because Frank and hi
attorneys had been absent from tn
courtroom, without Franks consent
x,tha,, tba uardiot WAS rQfurned rrhi