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Show LEO M. FRANK CASFJECIDED Supreme Court of United States Believes Full Rights Were Accorded Alleged Murderer by State. ONLY PARDON TO SAVE Was Convicted Under the Law for Killing of the Factory Girl, Mary Phagan. Washington. April 19 Leo M. Frank, the Brooklyn man, under death sentence for the murder of Mary Ma-ry Phagan, an Atlanta. Ga., factory girl, lost another step In his fight for life In the supreme court of the United Uni-ted States today. In a decision to which Justices Holmes and Hughes dissented, the court dismissed Frank's appeal from the federal court of Georgia, which refused re-fused to release him on a writ of habeas corpus. Frank contended that "alleged mob violence" at his trial aDd the fact that he. was absent from the court room when the jury' returned its verdict had removed him from the jurisdiction of the courts of Georgia. The majority opinion of the supreme su-preme court today rejected all those contentions and declared Frank en-Joyed en-Joyed all his legal rights in the Geor gla courts Only Pardon Can Save. Seemingly no other avenue of escape es-cape from the death penalty It open to Frank through the courts The state pardon officiate might relieve ! him. Justice Pitney, in the majority decision, deci-sion, stated that the obligation rested upon the supreme court to look through the form and into the ver heart and substance of the matter, not only of the averment in Frank's petition, peti-tion, but In the trial proceedings In the state courts themselves. Frank's Allegations Groundless. "The petition contains a narrative of disorder, hostile manifestations and uproar," said the justice, "which if it stood alone and were 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 to take a wholly superficial view; for the narrative nar-rative is coupled with other statements state-ments from which it clearly appears that the same allegations of disorder were submitted first to the trial court of Georgia as a ground for avoiding the consequences of the trial and these allegations were considered b'-those b'-those courts successively at times and places and under circumstances whol ly apart from the atmosphere of the trial and free from any suggestion of mob domination or the like. The facts were examined by those courts upon evidence submitted on both sides and both courts found Frank's allegations to be groundless except with respect to a few matters of Irregularity Ir-regularity not harmful to the defend ant. "This court holds that such R determination de-termination of the facts cannot. In this collateral inquiry, be treated as a military, but must be taken a setting set-ting forth the truth of the matter until un-til some reasonable ground Is shown for an inference that the supremo court of Georgia either was wanting In jurisdiction or committed error In the exercise of Its Jurisdiction, and the mere assertion by the prisoner I that the facts of the matter are other than the state courts, upon full ln-j ln-j vestigation, determined them to be, will not be treated as raising an issue respecting the correctness of that de termination, especially, not where the very evidence upon which the determination deter-mination was rested is withheld by him who attacks the finding "Respecting the fact that Frank was not present In the court room when the verdict was rendered (his presence pres-ence having been waived by his counsel, coun-sel, but without his knowledge or consent), con-sent), the Georgia court held that Frank shortly after the verdict was made fully aware of the fact and he then made a motion for a new trial upon other grounds not Including this as one and had that motion heard by both the trial court and the supreme court, he could not, after this motion had been finalh adjudicated against him, move to set aside the verdict as a nullity because of his absence when the verdict was rendered. This court holds that there is nothing in the fourteenth four-teenth amendment to prevent a stare from adopting and enforcing so reasonable rea-sonable a regulation of procedure," State Within Rights. Justice Pitney said that practice established es-tablished In the Georgia courts, that a defendant may waive his right to be present when the jury renders its verdict," is within the authority of the state to adopt." "The presence of the prisoner at the rendition of the verdict," he said, "is within the authority of the state to adopt" "The presence of the prisoner at the rendition of the verdict." he said. "Is not so essential a part of the hearing hear-ing that a rule of practice permitting the accused to waive it and holding him bound by the waiver, amounts to a deprivation of due process of law. ' Justice Holmes' Dissent. Justice Hoi men based his dissent largely on the ground that the flodlnR of the state supreme court on the exlstenoe of mob violence at a trial is i not binding on the United States' supreme su-preme court, as was hold by the ma- i jorlty. He said he saw no reason for adopting a sterner rule in criminal crim-inal appeals than in civil appeals and held where questions of law and fact were intermingled In civil cases, as here, the I'nited States' supreme court may review a state court's finding of fact. "The single question in our mmd." said Justice Holmes, "is whether a petition alleging that the trial took place in the midst of a mob, savagely and manifestly intent on a single result, re-sult, is shown cn its face unwarranted by the specifications, which may be presumed to set forth the strongest indications of the fact at the petitioner's peti-tioner's 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 extremely ex-tremely likely to be Impregnated by the environing atmosphere And when we find the judgment of the expert ex-pert on the spot, or the Judge whose duty it was to preserve not only form but substance, to have been that 'f one Juryman yielded to the reasonable reason-able doubt that he himself later expressed ex-pressed 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 pre-sumption overwhelming that the Jury responded to the passions of the moh. "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, opin-ion, it ought to be heard, whatever the decision of the state court may have been "It may be on a hearing, a different complexion would be given to the judges alleged request and expression expres-sion of fear But. supposing the al leged facts to be true, we are of the opinion if they were before the supreme su-preme court It sanctioned a situation upon which the courts of the United States should act and If for any reason rea-son they were not before the supreme su-preme court, it is our duty to act upon up-on them now and to declare lynch law as little valid when practiced by a regularly drawn Jury as when administered admin-istered by one selected by a mob Intent In-tent on death.' nn |