Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1915-04-20
Only Governor Of Georgia Now
Stands Between the Man
Charged With Murder of
Mary Phagan and GaIIows,
DISSENTING OPINION
BY HOLMES AND HUGHES
Due Process of Law Not De-
MED by Trial Court, Is the
Opinion of Majority of High
Tribunal,

tsv aoRniHa JoUsHAL SPECIAL LgAsep wIRSl
Washington, April Ia.-rhe SUI
preme court held that the state of
Georgia had denied Leo NJ. Frank no
right under the federal constitution In
sentencing him TO death for the muir
der of Mary Phagan, an Atlanta fac
tory girl.
The court affirmed the action of the
United States district court for north
ern Georgia refusing to release Frank
on writ of habeas corpus, Justice
Fitney announcing the opinion. JUS
tce Holmes delivered dissenting opin
ion. in which Justice Hughes con.
CURED.
This decision, II is believed here,
eNhuusts all means of fighting in the
courts to save Franks life. His at
torneys will have, however, thirty days
In which TO file an application for "A
reahearing. At the end OF that line
the courts mandate Will issue and APP
iparently only the possibility OF par
don will be between the prisoner and
death.
Ground for Habeas Corpus
The habeas corpus proceedings
rested on the claim that the trial
court had lost jurisdiction over the
| prisoner BY reason of mob domina-
, tion" during the trial, and by Franks
/ involuntary absence at the time the
verdict was rendered II was clnimed
this denied him due process as
guaranteed by the federal constltu-
! ton.
The majority Of the court held that
the findings by the supreme court OF
! Georgia that the alleged mob domi-
nation amounted to nothing more
than irregularities, not prejudicial tp
Frank, should not be disturbed upon
the mere assertion Of the prisoner that
the facts were otherwise than as
found. This was so. the court held,
especially as the prisoner Withheld
4 from the court affidavits he had pre-
I sented to the state courts on the sub
ject of disorder during the trial.
Dissenting Opinion.
I Justice Holmes in his dissenting
opinion declared that loss of 1ursdic-
tion by the trial court could not be
restored TO any decision by higher
court and declined to accept the find
/ ings of the Georgia supreme court, as
conclusive. He said If the allegations
I in Franks petition for habeas cor
: pus were true and the facts were be-
I fore the Georgia supreme court, that
court sanctioned situation upon
which the federal courts should act
/ If the facts were not before the state
court. he added 1t was the duty OF
the federal court 20 declare lyhch
! law as little valid "when practicod by
a regularly drawn jury as when ad-
mnlstcred by one elected by mob
intent on death
The dissenting Justice held the case
should be sent back to the district
court for the taking Of evidence on
! the petition. They said however, that
! they were not impressed with tho ar
gument that the presence Of a pris-
/ oner at the time verdict was rem
dered was required by the constitu-
/ tion.
Justice Pitney in the majority deci-
I sion stated that the obligation rested
upon the supreme court TO look
through the form and into the very
heart and substance of the matter, not
( only of the averment in Franks pc
/ tition, but in the trial proceedings in
( the state courts themselves
Record Considered a. u Whole.
! "The petition contains narrative
Of disorder hostile demonstrations
and uproar,n said the justice, which
I If il stood alone and was to be taken
as true, may be conceded TO have
/ been inconsistent with a fair trial and
an impartial verdict. But TO consider
| this as standing alone is 20 take Il
/ wholly superficial view; for the mar
rative is coupled with other state
mems from which Il clearly appears
I that the same allegations of disorder
were submitted first to the trial court
/ Of Georgia as a ground for avoiding
I the consequences of the trial, and
these allegations were considered by
I those courts successfully al times and
places and under all circumstances
wholly apart from the atmosphere of
I the trial and free from any sugges-
( tion of mob domination or the like.
I These facts were examined 10y those
courts upon evidence submitted on
both sides and both courts found
Franks allegations groundiess, except
with respect to few matters of ir-
regularity not harmful TO the defend
ant
This court holds that such a de-
termination of the facts cannot, in
! this collateral inquiry, be treated as
a nuility. but mus; be taken as setting
! forth the truth Of the matter until
some reasonable ground is shown for
Ian inference that the supreme court
of Georgia either was wanting in Jur-
isdictlon OF committcd error in the
exercise of its jurisdiction; and the
mere assertion by the prisoner that
the facts Of tho matter are other than
the state courts, upon full investiga-
ton, determined them TO be- viii
not be treated as raising an issue re-
specting the correctness OF mat de-
termination, especially not where the
very evidence upon which tho deter
minatfon rested is withheld by him
who attacks the finding
Waiver OF Rights.
Respecting the fact that Frank
was not present in the courtroom
when the verdict WAS rendered chs
presence having been waived by his
counsel, but without his knowledge