Atlanta tri-weekly journal. [volume] (Atlanta, Ga.) 1920-19??, 1922-07-15

The supreme court OF Georgia on
Thursday rendered decision Of af-
f1rmance in the case of Frank e.
Dupre, who is under sentence or
death for the murder of Irby G. Wal.
ker, a Pinkerton detective in the
Kaiser jeWelry store on Peachtree
street, near the viaduct, on December
Is, 1921.
Ten points We're raised in the case
On eight of these points the court
was unanimous in affirming the
lower court. On the other two points
the court was evenly divided. There
fore, by operation of law the judg-
n1ent of the lower court is affirmed.
IN the opinion of affirmance, writ-
ten by Justice Gilbert, DuPre is se-
verely scored for his "callousness,
for his 'insolent bravado," for his
complete lack of regret or shame
for the series Of crimes which finally
eliminated in murder"
The first point on which the court
divided was the question whether
counter affidavits presented by Solic-
itor Boykin concerning the alleged
bias and prejudice of four members
of the jury could be considered by
u
in the following manner:
After the trial, which was con-
Quoted by Judge Mathews, OF Macon.
DuPre's attorneys presented in sup.
port of their motion for a new trial
number Of affidavits to the effect
tina. four members of the jury ex-
pressed prejudice against DuPre
previous to the trial and made the
statement that they would hang him
if they were ON the jury.
Left Out of Record
When the motion came on to be
argued before. Judge Mathews, in
Macon, Solicitor Boykin presented af-
fidavits by the four jurors m ques-
ton denying absolutely and in toto
the allegations Of prejudice, and as
sorting they had neither formed nor
expressed any opinion concerning
DuPre's guilt previus to hearing the
evidence. BY some technical over
sight, these counter affidavits were
not made part of the record in the
case.
The second point on which the
supreme court divided was whether
Judge Mathews committed error in
his charge with reference to the
punishment to be fixed by the jury.
His charge was as follows:
"You hear the evidence. You are
citizens Of this county. The jury is
supposed to know what ought to
b. done with reference to fixing the
punishment. The court has no sug-
gestion to make to you with refer
e ice to that. You may consides
what the object of punishment is;
consider all the facts and circums
stances of the observation-disclosures
of mitigation or paliation,' or circun.
stances of ravation-anything
that. you think ought to be con>
sidered as bearing upon the question
of what punishment you should fix"
Objected to Charge
DuPre's attorneys contended that
Judge Mathews should have given
the jury no rule as to the punish-
ment to be fixed, but should have
left that question entirely in their
hands. They contended that the
language Of the judges charge with
reference to the punishment was of
such a nature as to influence the
jury on the side of the death penalty,
as against recommendation for life
i'm prisonment.
On this point the supreme court
again divided evenly, but the divi-.
SION was not the same as on the
first point. Justices Beck, Gilbert
and Hill held that the judges charge.
was not error. Justices Atkinson,
Fish and Hines held that the Gdges =
charge was error. Thus by opera
ton of law with an evenly divided
court the effect of the decision is to
affirm Judge Mathews.
The opinion affirming Judge
Mathews. both as to this portion OF
his charge and as to eight other por-
tons of his charge, which were at
tackled by attorneys for the defend.
ant. was written by Justice Gilbert.
Continued on Page 6, Column 81