(Cite as: 237 U.S. 309, 35 S.Ct. 582)
LEO M. FRANK, Appt.,
v.
C. WHEELER MANGUM, Sheriff of Fulton County, Georgia.
No. 775.
Argued February 25 and 26,
1915.
Decided April 19, 1915.
APPEAL from the District Court of the United States for the
Northern District of Georgia to review a decree denying a petition for a writ
of habeas corpus in behalf of a person in custody under a conviction of crime
in a court of that state. Affirmed.
*318 **586 Messrs. Louis Marshall, Henry C. Peeples, and Henry A. Alexander
for appellant.
*323 **583 Messrs. Warren Grice and
Hugh M. Dorsey for appellee.
Statement by Mr. Justice Pitney:
*311 Leo M. Frank, the present
appellant, being a prisoner in the custody of the sheriff in the jail or Fulton
county, Georgia, presented to the district court of the United States for the
northern district of Georgia his petition for a writ of habeas corpus under U.
S. Rev. Stat. § 753, Comp. Stat. 1913, § 1281, upon the ground that he was in
custody in violation of the Constitution of the United States, especially that
clause of the 14th Amendment which declares that no state shall deprive any
person of life, liberty, or property without due process of law. The district court, upon consideration of
the petition and accompanying exhibits, deeming that, upon his own showing,
petitioner was not entitled to the relief sought, refused to award the writ.
Whether this refusal was erroneous is the matter to be determined upon the
present appeal.
From the petition and exhibits it appears that in May, 1913, Frank
was indicted by the grand jury of Fulton county for the murder of one Mary
Phagan; he was arraigned before the superior court of that county, and, *312 on August 25, 1913, after a trial
lasting four weeks, in which he had the assistance of several attorneys, the
jury returned a verdict of guilty. On
the following day, the court rendered judgment, sentencing him to death, and
remanding him, meanwhile, to the custody of the sheriff and jailer, the present
appellee. On the same day, the
prisoner's counsel filed a written motion for a new trial, which was amended
about two months thereafter so as to include 103 different grounds particularly
specified. Among these were several
raising the contention that defendant did not have a fair and impartial trial,
because of alleged disorder in and about the court room, including
manifestations of public sentiment hostile to the defendant sufficient to
influence the jury. In support of one
of these, and to show the state of sentiment as manifested, the motion stated:
'The defendant was not in the court room when the verdict was rendered, his
presence having been waived by his counsel.
This waiver was accepted and acquiesced in by the court, because of the
fear of violence that might be done the defendant were he in court when the
verdict was rendered.' But the absence of defendant at the reception of the
verdict, although thus mentioned, was not specified or relied upon as a ground
for a new trial. Numerous affidavits were submitted by defendant in support of
the motion, including 18 that related to the allegations of disorder, and
rebutting affidavits were submitted by the state. The trial court, having heard argument, denied the motion on
October 31. The cause was then taken on
writ of error to the supreme court of Georgia, where the review included not
only alleged errors in admission and exclusion of evidence, and instructions to
the jury, but also a consideration of the allegations of disorder in and about
the court room and the supporting and rebutting proofs. On February 17, 1914, the judgment of
conviction was affirmed. 141 Ga. 243,
80 S. E. 1016.
*313 Concerning the question
of disorder, the findings and conclusions of the court were, in substance (141
Ga. 280): That the trial court, from
the evidence submitted, was warranted in finding that only two of the alleged
incidents occurred within the hearing or knowledge of the jury. 1.
Laughter by spectators while the defense was examinting one of its
witnesses; there being nothing to indicate what provoked it, other than **584 a witty answer by the witness or
some other innocuous matter. The trial
court requested the sheriff to maintain order, and admonished those present
that if there was further disorder nobody would be permitted in the court room
on the following day. The supreme court
held that, in the absence of anything showing a detrimental effect, there was
in this occurrence no sufficient ground for a new trial. 2. Spectators applauded the result of a
colloquy between the solicitor general and counsel for the accused. The latter complained of this conduct, and
requested action by the court. The
supreme court said: 'The [trial] court
directed the sheriff to find out who was making the noise, and, presumably from
what otherwise appears in the record, the action by the court was deemed
satisfactory at the time, and the orderly progress of the case was resumed
without any further action being requested.
The general rule is that the conduct of a spectator during the trial of
a case will not be ground for a reversal of the judgment, unless a ruling upon
such conduct is invoked from the judge at the time it occurs. [Citing cases]. . . . The applause by the spectators, under the circumstances as
described in the record, is but an irregularity not calculated to be
substantially harmful to the defendant; and even if the irregularity should be
regarded as of more moment than we give it, we think the action of the court,
as a manifestation of the judicial disapproval, was a sufficient cure for any
possible harmful effect of the irregularity, and deemed so sufficient by the
counsel, who, *314 at the time, made
no request for further action by the court.'
As to disorder during the polling of the jury, the court said (141
Ga. p. 281): 'Just before the jury was
ushered into the court's presence for the purpose of rendering their verdict,
the court had the room cleared of spectators.
The verdict of the jury was received and published in the usual
manner. A request was made to poll the
jury, and just after the polling had begun loud cheering from the crowd in the
streets adjacent to the courthouse was heard.
This cheering continued during the polling of the jury. The plaintiff in error insists that the
cheering on the outside of the court room, which was loud, and which was heard
by the jury, could not have been interpreted otherwise than as expressive of
gratification at the verdict which had been rendered, and of which the crowd on
the outside had in some way been informed, and was so coercive in character as
to affect the fairness of the poll of the jury which was taken. . . . [P. 282.] In order that the occurrence complained of shall have the effect
of absolutely nullifying the poll of the jury, taken before they dispersed, it
must appear that its operation upon the minds of the jury, or some of them, was
of such a controlling character that they were prevented, or likely to have
been prevented, from giving a truthful answer to the questions of the
court. We think that the affidavits of
jurors submitted in regard to this occurrence were sufficient to show that
there was no likelihood that there was any such result. Under such circumstances we do not think
that the occurrence complained of amounts to more than an irregularity, which
was not prejudicial to the accused. There is a wide difference between an
irregularity produced by the juror himself, or by a party, and the injection
into a trial of an occurrence produced by someone having no connection
therewith.'
After this decision by the supreme court, an extraordinary *315 motion for a new trial was made
under Code 1910, §§ 6089, 6092, upon the ground of newly discovered evidence;
and this having been refused, the case was again brought before the supreme
court, and the action of the trial court affirmed on October 14, 1914 (83 S. E.
233).
On April 16, 1914, more than six months after his conviction,
Frank for the first time raised the contention that his absence from the court
room when the verdict was rendered was involuntary, and that this vitiated the
result. On that day, he filed in the
superior court of Fulton county a motion to set aside the verdict as a nullity
[FN1] on this ground (among others); stating that he did not waive the right to
be present, nor authorize anybody to waive it for him; that on the day the
verdict was rendered, and shortly before the presiding judge began his charge
to the jury, the judge privately conversed with two of the prisoner's counsel,
referred to the probable danger of violence to the prisoner if he were present
when the verdict was rendered, in case it should be one of acquittal, or if the
jury should disagree, and requested counsel to agree that the prisoner need not
be present when the **585 verdict
was rendered and the jury polled; that in the same conversation the judge
expressed the view that even counsel might be in danger of violence should they
be present at the reception of the verdict, and under these circumstances they
agreed that neither they nor the prisoner should be present, but the prisoner
knew nothing of the conversation *316
or agreement until after the verdict and sentence; and that the reception of
the verdict during the involuntary absence of defendant and his counsel was a
violation of that provision of the Constitution of the state of Georgia,
guarantying the right of trial by jury, and was also contrary to the 'due
process of law' clause of the 14th Amendment.
The motion was also based upon allegations of disorder in the court room
and in the adjacent street, substantially the same as those previously
submitted in the first motion for a new trial.
To this motion to set aside the verdict the state interposed a demurrer,
which, upon hearing, was sustained by the superior court; and upon exception
taken and error assigned by Frank, this judgment came under review before the
supreme court, and, on November 14, 1914, was affirmed (L.R.A. ‑‑‑‑,
83 S. E. 645).
FN1 The Constitution of Georgia provides (art.
1, § 1, ¶8; Code 1911, § 6364): 'No
person shall be put in jeopardy of life, or liberty, more than once for the
safe offense, save on his or her motion for a new trial after conviction, or in
case of mistrial.' In some cases a distinction has been taken between a motion
for a new trial, and a motion to set aside the verdict as a nullity. It seems that if a motion of the latter kind
is granted upon grounds such as were here urged, defendant, if again put upon
trial, can plead former jeopardy. Nolan
v. State, 55 Ga. 521, 21 Am. Rep. 281, 1 Am. Crim. Rep. 532; Bagwell v. State,
129 Ga. 170, 58 S. E. 650.
The grounds of the decision were, briefly: That by the law of Georgia it is the right of
a defendant on trial upon a criminal indictment to be present at every stage of
the trial, but he may waive his presence at the reception of the verdict
(citing Cawthon v. State, 119 Ga. 395, 412, 46 S. E. 897); that a defendant has
the right by motion for a new trial toreview an adverse verdict and judgment
for illegality or irregularity amounting to harmful error in the trial, but
where such a motion is made, it must include all proper grounds which are at
the time known to the defendant or his counsel, or by reasonable diligence
could have been discovered (citing Leathers v. Leathers, 138 Ga. 740, 76 S. E.
44); that objections to the reception of a verdict during the enforced absence
of defendant without his consent, or to the taking by the trial court of other
steps in his absence and without his consent, can be made in a motion for a new
trial (citing Wade v. State, 12 Ga. 25; Martin v. State, 51 Ga. 567, 1 Am.
Crim. Rep. 536; Bonner v. State, 67 Ga. 510; Wilson v. State, 87 Ga. 583, 13 S.
E. 566; Tiller v. State, 96 Ga. 430, 23 S. E. 825; and Hopson v. State, 116 Ga. *317 90, 42 S. E. 412), and in such
case the verdict rendered against the defendant will not be treated as a
nullity, but will be set aside and a new trial granted; and since Frank and his
counsel, when the motion for a new trial was made, were fully aware of the
facts respecting his absence when the verdict of guilty was rendered against
him, the failure to include this ground in that motion precluded him, after
denial of the motion and affirmance of the judgment by the supreme court, from
seeking upon that ground to set aside the verdict as a nullity. Respecting the allegations of disorder, the
court held that the questions raised were substantially the same that were
presented when the case was under review upon the denial of the first motion
for a new trial (141 Ga. 243), at which time they were adjudicated adversely to
the contentions of defendant, and the court therefore declined to reconsider
them. The result was an affirmance of
the judgment of the trial court, denying the motion to set aside the verdict.
Shortly after this decision, Frank unsuccessfully applied to the
supreme court of Georgia for the allowance of a writ of error to review its
judgment in this court. Thereafter he
applied to several of the justices of this court, and finally to the court
itself, for the allowance of such a writ.
These applications were severally denied. See 235 U. S. 694, 59 L. ed. ‑‑‑‑, 35
Sup. Ct. Rep. 208.
Thereupon his application for a writ of habeas corpus was made to
the district court, with the result already mentioned. The petition purports to set forth the
criminal proceedings pursuant to which appellant is detained in custody,
including the indictment, the trial and conviction, the motions, and the
appeals above set forth. It contains a statement in narrative form of the
alleged course of the trial, including allegations of disorder and
manifestations of hostile sentiment in and about the court room, and states
that Frank was absent at the time the verdict was rendered without his consent,
pursuant to a *318 suggestion from
the trial judge to his counsel to the effect that there was probable danger of
violence to Frank and to his counsel if he and they were present and there
should be a verdict of acquittal or a disagreement of the jury; and that under
these circumstances they consented (but without Frank's authority) that neither
he nor they should be present at the rendition of the verdict. From the averments of the pettion it appears
that the same allegations were made the basis of the first motion for a new
trial, and also for the motion of April 16, 1914, to set aside the verdict.
Accompanying the petition, as an exhibit, was a copy of Frank's first motion
for a new trial and the supporting affidavits.
The rebutting affidavits were not included, nor were they in any way
submitted to the district court; therefore, of course, they have not been
brought before this court upon the present appeal. The petition refers to the opinion of the Georgia **586 supreme court, affirming the
conviction and the denial of the motion for a new trial (141 Ga. 243); it also
refers to the opinion upon the affirmance of the motion to set aside the
verdict as a nullity (L.R.A. ‑‑‑‑, 83 S. E. 645), and a
copy of this was submitted to the district court as an exhibit. From these opinions, and from the order of
the superior court denying the motion for new trial, which is included among
the exhibits, it appears that the rebutting affidavits were considered and
relied upon by both of the state courts as the basis of their findings upon the
questions of fact.
Mr. Justice Pitney, after making the foregoing statement,
delivered the opinion of the court:
The points raised by the appellant may be reduced to the
following:
(1) It is contended that
the disorder in and about the court room during the trial and up to and at the
reception of the verdict amounted to mob domination, that not only *325 the jury, but the presiding
judge, succumbed to it, and that this in effect wrought a dissolution of the
court, so that the proceedings were coram non judice.
(2) That Frank's right to
be present during the entire trial until and at the return of the verdict was
an essential part of the right of trial by jury, which could not be waived
either by himself or his counsel.
(3) That his presence was
so essential to a proper hearing that the reception of the verdict in his
absence, and in the absence of his counsel, without his consent or authority,
was a departure from the due process of law guaranteed by the 14th Amendment,
sufficient to bring about a loss of jurisdiction of the trial court, and to
render the verdict and judgment absolute nullities.
(4) That the failure of
Frank and his counsel, upon the first motion for a new trial, to allege as a
ground of that motion the known fact of Frank's absence at the reception of the
verdict, or to raise any jurisdictional question based upon it, did not deprive
him of the right to afterwards attack the judgment as a nullity, as he did in
the motion to set aside the verdict.
(5) And that the ground
upon which the supreme court of Georgia rested its decision affirming the
denial of the latter motion (L.R.A. ‑‑‑‑, 83 S. E.
645),‑‑viz., that the objection based upon Frank's absence when the
verdict was rendered was available on the motion for new trial, and under
proper practice ought to have been then taken, and because not then taken could
not be relied upon as a ground for setting aside the verdict as a nullity,‑‑was
itself in conflict with the Constitution of the United States because
equivalent in effect to an ex post facto law, since, as is said, it departs
from the practice settled by previous decisions of the same court.
In dealing with these contentions, we should have in mind the
nature and extent of the duty that is imposed upon a Federal court on
application for the writ of habeas *326
corpus under § 753, Rev. Stat. Comp. Stat. 1913, § 1281. Under the terms of that section, in order to
entitle the present appellant to the relief sought, it must appear that he is
held in custody in violation of the Constitution of the United States. Rogers v. Peck, 199 U. S. 425, 434, 50 L.
ed. 256, 260, 26 Sup. Ct. Rep. 87.
Moreover, if he is held in custody by reason of his conviction upon a
criminal charge before a court having plenary jurisdiction over the subject‑matter
or offense, the place where it was committed, and the person of the prisoner,
it results from the nature of the writ itself that he cannot have relief on
habeas corpus. Mere errors in point of
law, however serious, committed by a criminal court in the exercise of its
jurisdiction over a case properly subject to its cognizance, cannot be reviewed
by habeas corpus. That writ cannot be
employed as a substitute for the writ of error. Ex parte Parks, 93 U. S. 18, 21, 23 L. ed. 787, 788; Ex parte
Siebold, 100 U. S. 371, 375, 25 L. ed. 717, 718; Ex parte Royall, 117 U. S.
241, 250, 29 L. ed. 868, 871, 6 Sup. Ct. Rep. 734; Re Frederich, 149 U. S. 70,
75, 37 L. ed. 653, 656, 13 Sup. Ct. Rep. 793; Baker v. Grice, 169 U. S. 284,
290, 42 L. ed. 748, 750, 18 Sup. Ct. Rep. 323; Tinsley v. Anderson, 171 U. S.
101, 105, 43 L. ed. 91, 96, 18 Sup. Ct. Rep. 805; Markuson v. Boucher, 175 U.
S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76.
As to the 'due process of law' that is required by the 14th
Amendment, it is perfectly well settled that a criminal prosecution in the
courts of a state, based upon a law not in itself repugnant to the Federal Constitution,
and conducted according to the settled course of judicial proceedings as
established by the law of the state, so long as it includes notice and a
hearing, or an opportunity to be heard, before a court of competent
jurisdiction, according to established modes of procedure, is 'due process' in
the constitutional sense. Walker v.
Sauvinet, 92 U. S. 90, 93, 23 L. ed. 678, 679; Hurtado v. California, 110 U. S.
516, 535, 28 L. ed. 232, 238, 4 Sup. Ct. Rep. 111, 292; Andrews v. Swartz, 156
U. S. 272, 276, 39 L. ed. 422, 423, 15 Sup. Ct. Rep. 389; **587 Bergemann v. Backer, 157 U. S. 655, 659, 39 L. ed. 845, 848,
15 Sup. Ct. Rep. 727; Rogers v. Peck, 199 U. S. 425, 434, 50 L. ed. 256, 260,
26 Sup. Ct. Rep. 87; United States ex rel. Drury v. Lewis, 200 U. S. 1, 7, 50
L. ed. 343, 345, 26 Sup. Ct. Rep. 229; Felts v. Murphy, 201 U. S. 123, 129, 50
L. ed. 689, 692, 26 Sup. Ct. Rep. 366; Howard v. Kentucky, 200 U. S. 164, 50 L.
ed. 421, 26 Sup. Ct. Rep. 189.
It is therefore conceded by counsel for appellant that, *327 in the present case, we may not
review irregularities or erroneous rulings upon the trial, however serious, and
that the writ of habeas corpus will lie only in case the judgment under which
the prisoner is detained is shown to be absolutely void for want of
jurisdiction in the court that pronounced it, either because such jurisdiction
was absent at the beginning, or because it was lost in the course of the
proceedings. And since no question is
made respecting the original jurisdiction of the trial court, the contention is
and must be that by the conditions that surrounded the trial, and the absence
of defendant when the verdict was rendered, the court was deprived of
jurisdiction to receive the verdict and pronounce the sentence.
But it would be clearly erroneous to confine the inquiry to the
proceedings and judgment of the trial court.
The laws of the state of Georgia (as will appear from decisions
elsewhere cited) provide for an appeal in criminal cases to the supreme court
of that state upon divers grounds, including such as those upon which it is
here asserted that the trial court was lacking in jurisdiction. And while the 14th Amendment does not
require that a state shall provide for an appellate review in criminal cases
(McKane v. Durston, 153 U. S. 684, 687, 38 L. ed. 867, 868, 14 Sup. Ct. Rep.
913; Andrews v. Swartz, 156 U. S. 272, 275, 39 L. ed. 422, 423, 15 Sup. Ct.
Rep. 389; Rogers v. Peck, 199 U. S. 425, 435, 50 L. ed. 256, 260, 26 Sup. Ct.
Rep. 87; Reetz v. Michigan, 188 U. S. 505, 508, 47 L. ed. 563, 566, 23 Sup. Ct.
Rep. 390), it is perfectly obvious that where such an appeal is provided for,
and the prisoner has had the benefit of it, the proceedings in the appellate
tribunal are to be regarded as a part of the process of law under which he is
held in custody by the state, and to be considered in determining any question
of alleged deprivation of his life or liberty contrary to the 14th Amendment.
In fact, such questions as are here presented under the due process
clause of the 14th Amendment, though sometimes discussed as if involving merely
the jurisdiction of some court or other tribunal, in a larger and more accurate *328 sense involve the power and
authority of the state itself. The prohibition is addressed to the state; if it
be violated, it makes no difference in a court of the United States by what
agency of the state this is done; so, if a violation be threatened by one
agency of the state, but prevented by another agency of higher authority, there
is no violation by the state. It is for
the state to determine what courts or other tribunals shall be established for
the trial of offenses against its criminal laws, and to define their several
jurisdictions and authority as between themselves. And the question whether a state is depriving a prisoner of his
liberty without due process of law, where the offense for which he is
prosecuted is based upon a law that does no violence to the Federal
Constitution, cannot ordinarily be determined, with fairness to the state,
until the conclusion of the course of justice in its courts. Virginia v. Rives,
100 U. S. 313, 318, 25 L. ed. 667, 669; Civil Rights Cases, 109 U. S. 3, 11, 27
L. ed. 835, 839, 3 Sup. Ct. Rep. 18; McKane v. Durston, 153 U. S. 684, 687, 38
L. ed. 867, 868, 14 Sup. Ct. Rep. 913; Dreyer v. Illinois, 187 U. S. 71, 83,
84, 47 L. ed. 79, 85, 23 Sup. Ct. Rep. 28, 15 Am. Crim. Rep. 253; Reetz v.
Michigan, 188 U. S. 505, 507, 47 L. ed. 563, 565, 23 Sup. Ct. Rep. 390; Carfer
v. Caldwell, 200 U. S. 293, 297, 50 L. ed. 488, 489, 26 Sup. Ct. Rep. 264;
Waters‑Pierce Oil Co. v. Texas, 212 U. S. 86, 107, 53 L. ed. 417, 428, 29
Sup. Ct. Rep. 220; Re Frederich, 149 U. S. 70, 75, 37 L. ed. 653, 656, 13 Sup.
Ct. Rep. 793; Whitten v. Tomlinson, 160 U. S. 231, 242, 40 L. ed. 406, 412, 16
Sup. Ct. Rep. 297; Baker v. Grice, 169 U. S. 284, 291, 42 L. ed. 748, 750, 18
Sup. Ct. Rep. 323; Minnesota v. Brundage, 180 U. S. 499, 503, 45 L. ed. 639,
641, 21 Sup. Ct. Rep. 455; Urquhart v. Brown, 205 U. S. 179, 182, 51 L. ed. 760,
761, 27 Sup. Ct. Rep. 459.
It is indeed, settled by repeated decisions of this court that
where it is made to appear to a court of the United States that an applicant
for habeas corpus is in the custody of a state officer in the ordinary course
of a criminal prosecution, under a law of the state not in itself repugnant to
the Federal Constitution, the writ, in the absence of very special
circumstances, ought not to be issued until the state prosecution has reached
its conclusion, and not even then until the Federal questions arising upon the
record have been brought before this court upon writ of error. Ex parte Royall, 117 U. S. 241, 251, 29 L.
ed. 868, 871, 6 Sup. Ct. Rep. 734; Re Frederich, *329 149 U. S. 70, 77, 37 L. ed. 653, 657, 13 Sup. Ct. Rep. 793;
Whitten v. Tomlinson, 160 U. S. 231, 242, 40 L. ed. 406, 412, 16 Sup. Ct. Rep.
297; Baker v. Grice, 169 U. S. 284,
**588 291, 42 L. ed. 748, 750, 18 Sup. Ct. Rep. 323; Tinsley v. Anderson,
171 U. S. 101, 105, 43 L. ed. 91, 96, 18 Sup. Ct. Rep. 805; Markuson v.
Boucher, 175 U. S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76; Urquhart v. Brown,
205 U. S. 179, 51 L. ed. 760, 27 Sup. Ct. Rep. 459. And see Henry v. Henkel, 235 U. S. 219, 228, 59 L. ed. ‑‑‑‑,
35 Sup. Ct. Rep. 54. Such cases as Re
Loney, 134 U. S. 372, 376, 33 L. ed. 949, 951, 10 Sup. Ct. Rep. 584, and Re
Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658, are recognized as
exceptional.
It follows as a logical consequence that where, as here, a
criminal prosecution has proceeded through all the courts of the state,
including the appellate as well as the trial court, the result of the appellate
review cannot be ignored when afterwards the prisoner applies for his release
on the ground of a deprivation of Federal rights sufficient to oust the state
of its jurisdiction to proceed to judgment and execution against him. This is not a mere matter of comity, as
seems to be supposed. The rule stands
upon a much higher plane, for it arises out of the very nature and ground of
the inquiry into the proceedings of the state tribunals, and touches closely
upon the relations between the state and the Federal governments. As was declared by this court in Ex parte
Royall, 117 U. S. 241, 252, 29 L. ed. 868, 871, 6 Sup. Ct. Rep. 734, applying
in a habeas corpus case what was said in Covell v. Heyman, 111 U. S. 176, 182,
28 L. ed. 390, 392, 4 Sup. Ct. Rep. 355, a case of conflict of
jurisdiction: 'The forbearance which
courts of co‑ordinate jurisdiction, administered under a single system,
exercise towards each other, whereby conflicts are avoided by avoiding
interference with the process of each other, is a principle of comity, with
perhaps no higher sanction than the utility which comes from concord; but
between state courts and those of the United States, it is something more. It is a principle of right and of law, and
therefore, of necessity.' And see Re
Tyler, 149 U. S. 164, 186, 37 L. ed. 689, 696, 13 Sup. Ct. Rep. 785.
It is objected by counsel for appellee that the alleged loss of
jurisdiction cannot be shown by evidence outside of the record; that where a
prisoner is held under a judgment *330
of conviction passed by a court having jurisdiction of the subject‑matter,
and the indictment against him states the case and is based upon a valid
existing law, habeas corpus is not an available remedy, save for want of
jurisdiction appearing upon the face of the record of the court wherein he was
convicted. The rule at the common law,
and under the act 31 Car. II. chap. 2, and other acts of Parliament prior to
that of July 1, 1816 (56 Geo. III. chap. 100, § 3), seems to have been that a
showing in the return to a writ of habeas corpus that the prisoner was held
under final process based upon a judgment or decree of a court of competent
jurisdiction closed the inquiry. So it
was held, under the judiciary act of 1789 (1 Stat. at L. 81, chap. 20, § 14),
in Ex parte Watkins, 3 Pet. 193, 202, 7 L. ed. 650, 653. And the rule seems to have been the same
under the act of March 2, 1833 (4 Stat. at L. 634, chap. 57, § 7), and that of
August 29, 1842 (5 Stat. at L. 539, chap. 257). But when Congress, in the act of February 5, 1867 (14 Stat. at L.
385, chap. 28), extended the writ of habeas corpus to all cases of persons
restrained of their liberty in violation of the Constitution or a law or treaty
of the United States, procedural regulations were included, now found in Rev.
Stat. §§ 754‑761, Comp. Stat. 1913, §§ 1282‑1289. These require that the application for the
writ shall be made by complaint in writing, signed by the applicant and
verified by his oath, setting forth the facts concerning his detention, in
whose custody he is detained, and by virtue of what claim or authority, if
known; require that the return shall certify the true cause of the detention;
and provide that the prisoner may, under oath, deny any of the facts set forth
in the return, or allege other material facts, and that the court shall proceed
in a summary way to determine the facts by hearing testimony and arguments, and
thereupon dispose of the party as law and justice require. The effect is to substitute for the bare
legal review that seems to have been the limit of judicial authority under the
common‑law practice, and under the
*331 act of 31 Car. II. chap. 2, a more searching investigation, in which
the applicant is put upon his oath to set forth the truth of the matter
respecting the causes of his detention, and the court, upon determining the
actual facts, is to 'dispose of the party as law and justice require.'
There being no doubt of the authority of the Congress to thus
liberalize the commonlaw procedure on habeas corpus in order to safeguard the
liberty of all persons within the jurisdiction of the United States against
infringement through any violation of the Constitution or a law or treaty
established thereunder, it results that under the sections cited a prisoner in
custody pursuant to the final judgment of a state court of criminal
jurisdiction may have a judicial inquiry in a court of the United States into
the very truth and substance of the causes of his detention, although it may
become necessary to took behind and beyond the record of his conviction to a
sufficient extent to test the jurisdiction of the state **589 court to proceed to judgment against him. Re Cuddy, 131 U. S. 280, 283, 286, 33 L. ed.
154, 155, 157, 9 Sup. Ct. Rep. 703; Re Mayfield, 141 U. S. 107, 116, 35 L. ed.
635, 638, 11 Sup. Ct. Rep. 939; Whitten v. Tomlinson, 160 U. S. 231, 242, 40 L.
ed. 406, 412, 16 Sup. Ct. Rep. 297; Re Watts, 190 U. S. 1, 35, 47 L. ed. 933,
944, 23 Sup. Ct. Rep. 718, 14 Am. Crim. Rep. 48.
In the light, then, of these established rules and principles:
that the due process of law guaranteed by the 14th Amendment has regard to
substance of right, and not to matters of form or procedure; that it is open to
the courts of the United States, upon an application for a writ of habeas
corpus, to look beyond forms and inquire into the very substance of the matter,
to the extent of deciding whether the prisoner has been deprived of his liberty
without due process of law, and for this purpose to inquire into jurisdictional
facts, whether they appear upon the record or not; that an investigation into
the case of a prisoner held in custody by a state on conviction of a criminal
offense must take into consideration the entire course of proceedings in the
courts of the state, and *332 not
merely a single step in those proceedings; and that it is incumbent upon the
prisoner to set forth in his application a sworn statement of the facts
concerning his detention and by virtue of what claim or authority he is
detained,‑‑we proceed to consider the questions presented.
1. And first, the question
of the disorder and hostile sentiment that are said to haveinfluenced the trial
court and jury to an extent amounting to mob domination.
The district court having considered the case upon the face of the
petition, we must do the same, treating it as if demurred to by the
sheriff. There is no doubt of the jurisdiction
to issue the writ of habeas corpus. The
question is as to the propriety of issuing it in the present case. Under § 755, Rev. Stat. Comp. Stat. 1913, §
1283, it was the duty of the court to refuse the writ if it appeared from the
petition itself that appellant was not entitled to it. And see Ex parte Watkins, 3 Pet. 193, 201, 7
L. ed. 650, 652; Ex parte Milligan, 4 Wall. 2, 110, 18 L. ed. 281, 292; Ex
parte Terry, 128 U. S. 289, 301, 32 L. ed. 405, 407, 9 Sup. Ct. Rep. 77.
Now the obligation resting upon us, as upon the district court, to
look through the form and into the very heart and substance of the matter,
applies as well to the averments of the petition as to the proceedings which
the petitioner attacks. We must regard
not any single clause or paragraph, but the entire petition, and the exhibits
that are made a part of it. Thus, the
petition contains a narrative of disorder, hostile manifestations, and uproar,
which, if it stood alone, and were to be taken as true, may be conceded to show
an environment inconsistent with a fair trial and an impartial verdict. But to consider this as standing alone is to
take a wholly superficial view. The
narrative has no proper place in a petition addressed to a court of the United
States except as it may tend to throw light upon the question whether the state
of Georgia, having regard to the entire course of the proceedings, in the
appellate as well as in the trial court, is depriving appellant of his liberty
and intending to deprive him of his *333
life without due process of law. Dealing with the narrative, then, in its
essence, and in its relation to the context, it is clearly appears to be only a
reiteration of allegations that appellant had a right to submit, and did
submit, first to the trial court, and afterwards to the supreme court of the
state, as a ground for avoiding the consequences of the trial; that the
allegations were considered by those courts, successively, at times and places
and under circumstances wholly apart from the atmosphere of the trial, and free
from any suggestion of mob domination, or the like; and that the facts were
examined by those courts not only upon the affidavits and exhibits submitted in
behalf of the prisoner which are embodied in his present petition as a part of
his sworn account of the causes of his detention, but also upon rebutting
affidavits submitted in behalf of the state, and which, for reasons not
explained, he has not included in the petition. As appears from the prefatory statement, the allegations of
disorder were found by both of the state courts to be groundless except in a
few particulars as to which the courts ruled that they were irregularities not
harmful in fact to defendant, and therefore insufficient in law to avoid the
verdict. 141 Ga. 243, 280. And it was because the defendant was
concluded by that finding that the supreme court, upon the subsequent motion to
set aside the verdict, declined to again consider those allegations. L.R.A. ‑‑‑‑, 83 S.
E. 645, 655.
Whatever question is raised about the jurisdiction of the trial
court, no doubt is suggested but that the supreme court had full jurisdiction
to determine the matters of fact and the questions of law arising out of this
alleged disorder; nor is there any reason to suppose that it did not fairly and
justly perform its duty. It is not easy
to see why appellant is not, upon general principles, bound by its
decision. It is a fundamental principle
of jurisprudence, arising from the very nature of courts of justice *334 and the objects for which they
are **590 established, that a
question of fact or of law distinctly put in issue and directly determined by a
court of competent jurisdiction cannot afterwards be disputed between the same
parties. Southern P. R. Co. v. United States, 168 U. S. 1, 48, 42 L. ed. 355,
376, 18 Sup. Ct. Rep. 18. The principle
is as applicable to the decisions of criminal courts as to those of civil
jurisdiction. As to its application, in
habeas corpus cases, with respect to decisions by such courts of the facts
pertaining to the jurisdiction over the prisoner, see Ex parte Terry, 128 U. S.
289, 305, 310, 32 L. ed. 405, 409, 410, 9 Sup. Ct. Rep. 77; Ex parte Columbia
George, 144 Fed. 985, 986.
However, it is not necessary, for the purposes of the present
case, to invoke the doctrine of res judicata; and, in view of the impropriety
of limiting in the least degree the authority of the courts of the United
States in investigating an alleged violation by a state of the due process of
law guaranteed by the 14th Amendment, we put out of view for the present the
suggestion that even the questions of fact bearing upon the jurisdiction of the
trial court could be conclusively determined against the prisoner by the
decision of the state court of last resort.
But this does not mean that that decision may be ignored or
disregarded. To do this, as we have
already pointed out, would be not merely to disregard comity, but to ignore the
essential question before us, which is not the guilt or innocence of the
prisoner, or the truth of any particular fact asserted by him, but whether the
state, taking into view the entire course of its procedure, has deprived him of
due process of law. This familiar
phrase does not mean that the operations of the state government shall be
conducted without error or fault in any particular case, nor that the Federal
courts may substitute their judgment for that of the state courts, or exercise
any general review over their proceedings, but only that the fundamental rights
of the prisoner shall not be taken from him arbitrarily or without the right to *335 be heard according to the usual
course of law in such cases.
We, of course, agree that if a trial is in fact dominated by a
mob, so that the jury is intimidated and the trial judge yields, and so that
there is an actual interference with the course of justice, there is, in that
court, a departure from due process of law in the proper sense of that
term. And if the state, supplying no
corrective process, carries into execution a judgment of death or imprisonment
based upon a verdict thus produced by mob domination, the state deprives the
accused of his life or liberty without due process of law.
But the state may supply such corrective process as to it seems
proper. Georgia has adopted the
familiar procedure of a motion for a new trial, followed by an appeal to its
supreme court, not confined to the mere record of conviction, but going at
large, and upon evidence adduced outside of that record, into the question
whether the processes of justice have been interfered with in the trial court. Repeated instances are reported of verdicts
and judgments set aside and new trials granted for disorder or mob violence
interfering with the prisoner's right to a fair trial. Myers v. State, 97 Ga.
76 (5), 99, 25 S. E. 252; Collier v. State, 115 Ga. 803, 42 S. E. 226, 12 Am.
Crim. Rep. 608.
Such an appeal was accorded to the prisoner in the present case
(Frank v. State, 141 Ga. 243 [16], 280, 80 S. E. 1016), in a manner and under
circumstances already stated, and the supreme court, upon a full review, decided
appellant's allegations of fact, so far as matters now material are concerned,
to be unfounded. Owing to considerations already adverted to (arising not out
of comity merely, but out of the very right of the matter to be decided, in
view of the relations existing between the states and the Federal government),
we hold that such a determination of the facts as was thus made by the court of
last resort of Georgia respecting the alleged interference with the trial *336 through disorder and manifestations
of hostile sentiment cannot, in this collateral inquiry, be treated as a
nullity, but must be taken as setting forth the truth of the matter; certainly
until some reasonable ground is shown for an inference that the court which
rendered it either was wanting in jurisdiction, or at least erred in the
exercise of its jurisdiction; and that the mere assertion by the prisoner that
the facts of the matter are other than the state court, upon full
investigation, determined them to be, will not be deemed sufficient to raise an
issue respecting the correctness of that determination; especially not, where
the very evidence upon which the determination was rested in withheld by him
who attacks the finding.
It is argued that if in fact there was disorder such as to cause a
loss of jurisdiction in the trial court, jurisdiction could not be restored by
any decision of the supreme court.
This, we think, embodies more than one error of reasoning. It regards a part only of the judicial
proceedings, instead of considering the entire process of law. It also begs the question of the existence
of such disorder as to cause a loss of jurisdiction in the trial court, which
should not be assumed, in the face of the decision of **591 the reviewing court, without showing some adequate ground
for disregarding that decision. And
these errors grow out of the initial error of treating appellant's narrative of
disorder as the whole matter, instead of reading it in connection with the
context. The rule of law that in
ordinary cases requires a prisoner to exhaust his remedies within the state
before coming to the courts of the United States for redress would lose the
greater part of its salutary force if the prisoner's mere allegations were to
stand the same in law after as before the state courts had passed judgment upon
them.
We are very far from intimating that manifestations of public
sentiment, or any other form of disorder, calculated to influence court or
jury, are matters to be lightly treated. *337 The decisions of the Georgia courts
in this and other cases show that such disorder is repressed, where
practicable, by the direct intervention of the trial court and the officers
under its command; and that other means familiar to the common‑law
practice, such as postponing the trial, changing the venue, and granting a new
trial, are liberally resorted to in order to protect persons accused of crime
in the right to a fair trial by an impartial jury. The argument for appellant amounts to saying that this is not
enough; that by force of the 'due process of law' provision of the 14th
Amendment, when the first attempt at a fair trial is rendered abortive through
outside interference, the state, instead of allowing a new trial under better
auspices, must abandon jurisdiction over the accused, and refrain from further
inquiry into the question of his guilt.
To establish this doctrine would, in a very practical sense,
impair the power of the states to repress and punish crime; for it would render
their courts powerless to act in opposition to lawless public sentiment. The argument is not only unsound in
principle, but is in conflict with the practice that prevails in all of the
states, so far as we are aware. The
cases cited do not sustain the contention that disorder or other lawless conduct
calculated to overawe the jury or the trial judge can be treated as a
dissolution of the court, or as rendering the proceedings coram non judice, in
any such sense as to bar further proceedings.
In Myers v. State, 97 Ga. 76, (5), 99, 25 S. E. 252; Collier v. State,
115 Ga. 803, 42 S. E. 226, 12 Am. Crim. Rep. 608; Sanders v. State, 85 Ind.
318, 44 Am. Rep. 29; Massey v. State, 31 Tex. Crim. Rep. 371, 381, 20 S. W.
758; and State v. Weldon, 91 S. C. 29, 38, 39 L.R.A.(N.S.) 667, 669, 74 S. E.
43, Ann. Cas. 1913E, 801,‑‑in all of which it was held that the
prisoner's right to a fair trial had been interfered with by disorder or mob
violence,‑‑it was not held that jurisdiction over the prisoner had
been lost; on the contrary, in each instance a new trial was *338 awarded as the appropriate
remedy. So, in the cases where the
trial judge abdicated his proper functions or absented himself during the trial
(Hayes v. State, 58 Ga. 36 [12], 49; Blend v. People, 41 N. Y. 604; Shaw v.
People, 3 Hun, 272, affirmed in 63 N. Y. 36; Hinman v. People, 13 Hun, 266;
McClure v. State, 77 Ind. 287; O'Brien v. People, 17 Colo. 561, 31 Pac. 230;
Ellerbe v. State, 75 Miss. 522, 41 L.R.A. 569, 22 So. 950) the reviewing court
of the state in each instance simply set aside the verdict and awarded a new
trial.
The Georgia courts, in the present case, proceeded upon the theory
that Frank would have been entitled to this relief had his charges been true,
and they refused a new trial only because they found his charges untrue save in
a few minor particulars not amounting to more than irregularities, and not
prejudicial to the accused. There was
here no denial of due process of law.
2. We come, next, to
consider the effect to be given to the fact, admitted for present purposes,
that Frank was not present in the court room when the verdict was rendered, his
presence having been waived by his counsel, but without his knowledge or
consent. No question is made but that
at the common law and under the Georgia decisions it is the right of the
prisoner to be present throughout the entire trial, from the commencement of
the selection of the jury until the verdict is rendered and jury
discharged. Wade v. State, 12 Ga. 25,
29; Martin v. State, 51 Ga. 567, 1 Am. Crim. Rep. 536; Nolan v. State, 53 Ga.
137, s. c. 55 Ga. 521, 21 Am. Rep. 281, 1 Am. Crim. Rep. 532; Smith v. State,
59 Ga. 513, 27 Am. Rep. 393; Bonner v. State, 67 Ga. 510; Barton v. State, 67
Ga. 653, 44 Am. Rep. 743; Cawthon v. State, 119 Ga. 395, 412, 46 S. E. 897;
Bagwell v. State, 129 Ga. 170, 58 S. E. 650; Lyons v. State, 7 Ga. App. 50, 66
S. E. 149. But the effect of these
decisions is that the prisoner may personally waive the right to be present
when the verdict is rendered, and perhaps may waive it by authorized act of his
counsel; and that where, without his consent, the verdict is received in his
absence, he may *339 treat this as
an error, and by timely motion demand a new trial, or (it seems) he may elect
to treat theverdict as a nullity by moving in due season to set it aside as
such. But we are unable to find that
the courts of Georgia have in any case held that, by receiving a verdict in the
absence of the prisoner and without his consent, the jurisdiction of the trial
court was terminated. In the Nolan **592 Case, supra, the verdict was set
aside as void on the ground of the absence of the prisoner; but this was not
held to deprive the trial court of its jurisdiction. On the contrary, the jurisdiction was treated as remaining, and
that court proceeded to exercise it by arraigning the prisoner a second time
upon the same indictment, when he pleaded specially, claiming his discharge
because of former jeopardy; the trial court overruled this plea, the defendant
excepted, and the jury found the defendant guilty; and, upon review, the
supreme court reversed this judgment, not for the want of jurisdiction in the
trial court, but for error committed in the exercise of jurisdiction. To the same effect is Bagwell v. State, 129
Ga. 170, 58 S. E. 650.
In most of the other states, where error is committed by receiving
a verdict of guilty during the involuntary absence of the accused, it is
treated as merely requiring a new trial.
In a few cases, the appellate court has ordered the defendant to be
discharged, upon the ground that he had been once in jeopardy and a new trial
would be futile.
However, the Georgia supreme court in the present case (L.R.A. ‑‑‑‑,
83 S. E. 645) held, as pointed out in the prefatory statement, that because
Frank, shortly after the verdict, was made fully aware of the facts, and he
then made a motion for a new trial upon over 100 grounds, without including
this as one, and had the motion heard by both the trial court and the supreme
court, he could not, after this motion had been finally adjudicated against
him, move to set aside the verdict as a nullity because of his absence when the
verdict was rendered. There is *340 nothing in the 14th Amendment to
prevent a state from adopting and enforcing so reasonable a regulation of
procedure. Dreyer v. Illinois, 187 U.
S. 71, 77‑80, 47 L. ed. 79, 82‑84, 23 Sup. Ct. Rep. 28, 15 Am.
Crim. Rep. 253.
It is insisted that the enforced absence of Frank at that time was
not only a deprivation of trial by jury, but was equally a deprivation of due
process of law within the meaning of the Amendment, in that it took from him at
a critical stage of the proceeding the right or opportunity to be heard. But repeated decisions of this court have
put it beyond the range of further debate that the 'due process' clause of the
14th Amendment has not the effect of imposing upon the states any particular
form or mode of procedure, so long as the essential rights of notice and a
hearing, or opportunity to be heard, before a competent tribunal, are not
interfered with. Indictment by grand
jury is not essential to due process (Hurtado v. California, 110 U. S. 516,
532, 538, 28 L. ed. 232, 237, 239, 4 Sup. Ct. Rep. 111, 292; Lem Woon v.
Oregon, 229 U. S. 586, 589, 57 L. ed. 1340, 1341, 33 Sup. Ct. Rep. 783, and
cases cited). Trial by jury is not essential to it, either in civil cases
(Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678), or in criminal (Hallinger v.
Davis, 146 U. S. 314, 324, 36 L. ed. 986, 991, 13 Sup. Ct. Rep. 105; Maxwell v.
Dow, 176 U. S. 581, 594, 602, 604, 44 L. ed. 597, 602, 605, 606, 20 Sup. Ct.
Rep. 448, 494).
It is argued that a state may not, while providing for trial by
jury, permit the accused to waive the right to be heard in the mode
characteristic of such trial, including the presence of the prisoner up to and
at the time of the rendition of the verdict.
But the cases cited do not support this contention. In Hopt v. Utah, 110
U. S. 574, 578, 28 L. ed. 262, 264, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417
(principally relied upon), the court had under review a conviction in a
territorial court after a trial subject to the local Code of Criminal
Procedure, which declared: 'If the
indictment is for a felony, the defendant must be personally present at the
trial.' The judgment was reversed
because of the action of the trial court in permitting certain challenges to
jurors, based upon the ground of bias, to be tried out of the presence of the
court, the defendant, and his counsel.
The ground of the decision of
*341 this court was the violation of the plan mandate of the local statute;
and the power of the accused or his counsel to dispense with the requirement as
to his personal presence was denied on the ground that his life could not be
lawfully taken except in the mode prescribed by law. No other question was involved.
See Diaz v. United States, 223 U. S. 442, 455, 458, 56 L. ed. 500, 505,
506, 32 Sup. Ct. Rep. 250, Ann. Cas. 1913C, 1138.
The distinction between what the common law requires with respect
to trial by jury in criminal cases, and what the states may enact without
contravening the 'due process' clause of the 14th Amendment, is very clearly
evidenced by Hallinger v. Davis, 146 U. S. 314, 36 L. ed. 986, 13 Sup. Ct. Rep.
105, and Lewis v. United States, 146 U. S. 370, 36 L. ed. 1011, 13 Sup. Ct.
Rep. 136, which were under consideration by the court at the same time, both
opinions being written by Mr. Justice Shiras.
In the Lewis Case, which was a conviction of murder in a circuit court
of the United States, the trial practice being regulated by the common law, it
was held to be a leading principle, pervading the entire law of criminal
procedure, that after indictment nothing should be done in the absence of the
prisoner; that the making of challenges is an essential part of the trial, and
it was **593 one of the substantial
rights of the prisoner to be brought face to face with the jurors at the time
the challenges were made; and that in the absence of a statute, this right as
it existed at common law must not be abridged.
But in the Hallinger Case, where a state by legislative enactment had
permitted one charged with a capital offense to waive a trial by jury and elect
to be tried by the court, it was held that this method of procedure did not
conflict with the 14th Amendment. So in
Howard v. Kentucky, 200 U. S. 164, 175, 50 L. ed. 421, 426, 26 Sup. Ct. Rep.
189,‑‑a case closely in point upon the question now presented,‑‑this
court, finding that by the law of the state an occasional absence of the
accused from the trial, from which no injury resulted to his substantial
rights, was not deemed material error, held that the application of this rule
of law did not *342 amount to a
denial of due process within the meaning of the 14th Amendment.
In fact, this court has sustained the states in establishing a
great variety of departures from the common‑law procedure respecting jury
trials. Thus, in Brown v. New Jersey,
175 U. S. 172, 176, 44 L. ed. 119, 121, 20 Sup. Ct. Rep. 77, a statute
providing for the trial of murder cases by struck jury was sustained,
notwithstanding it did not provide for twenty peremptory challenges. Simon v. Craft, 182 U. S. 427, 435,45 L. ed.
1165, 1170, 21 Sup. Ct. Rep. 836, while not a criminal case, involved the
property of a person alleged to be of unsound mind, and it was held that an
Alabama statute, under which the sheriff determined that Mrs. Simon's health
and safety would be endangered by her presence at the trial of the question of
her sanity, so that while served with notice she was detained in custody and
not allowed to be present at the hearing of the inquisition, did not deprive
her of property without due process of law.
In Felts v. Murphy, 201 U. S. 123, 129, 50 L. ed. 689, 692, 26 Sup. Ct.
Rep. 366, where the prisoner was convicted of the crime of murder, and
sentenced to imprisonment for life, although he did not hear a word of the
evidence given upon the trial because of his almost total deafness, his
inability to hear being such that it required a person to speak through an
eartrumpet close to his ear in order that such person should be heard by him,
and the trial court having failed to see to it that the testimony in the case
was repeated to him through his ear trumpet, this court said that this was 'at
most an error, which did not take away from the court its jurisdiction over the
subject‑matter and over the person accused.' In Twining v. New Jersey,
211 U. S. 78, 101, 111, 53 L. ed. 97, 107, 111, 29 Sup. Ct. Rep. 14, it was
held that the exemption of a prisoner from compulsory self‑incrimination
in the state courts was not included in the guaranty of due process of law
contained in the 14th Amendment. In
Jordan v. Massachusetts, 225 U. S. 167, 177, 56 L. ed. 1038, 1042, 32 Sup. Ct.
Rep. 651, where one of the jurors was subject to reasonable doubt as to his *343 sanity, and the state court,
pursuant to the local law of criminal procedure, determined upon a mere
preponderance of the evidence that he was sane, the conviction was
affirmed. In Garland v. Washington, 232
U. S. 642, 645, 58 L. ed. 772, 775, 34 Sup. Ct. Rep. 456, it was held that the
want of a formal arraignment, treated by the state as depriving the accused of
no substantial right, and as having been waived, and thereby lost, did not
amount to depriving defendant of his liberty without due process of law.
Our conclusion upon this branch of the case is, that the practice
established in the criminal courts of Georgia that a defendant may waive his
right to be present when the jury renders its verdict, and that such waiver may
be given after as well as before the event, and is to be inferred from the
making of a motion for new trial upon other grounds alone, when the facts
respecting the reception of the verdict are within the prisoner's knowledge at
the time of making that motion, is a regulation of criminal procedure that it
is within the authority of the state to adopt.
In adopting it, the state declares in effect, as it reasonably may
declare, that the right of the accused to be present at the reception of the
verdict is but an incident of the right of trial by jury; and since the state
may, without infringing the 14th Amendment, abolish trial by jury, it may limit
the effect to be given to an error respecting one of the incidents of such
trial. The presence of the prisoner
when the verdict is rendered is not so essential a part of the hearing 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.'
3. The insistence that the
dicision of the supreme court of Georgia in affirming the denial of the motion
to set aside the verdict (L.R.A. ‑‑‑‑, 83 S. E. 645) on
the ground that Frank's failure to raise the objection upon the motion for a
new trial amounted to a waiver of it was inconsistent with the previous practice
as established in Nolan v. *344
State, 53 Ga. 137, s. c. 55 Ga. 521, 21 Am. Rep. 281, 1 Am. Crim. Rep. 532, and
therefore amounted in effect to an ex post facto law in contravention of § 10
of article 1 of the Federal Constitution, needs but a **594 word. Assuming the
inconsistency, it is sufficient to say that the constitutional prohibition: 'No
state shall . . . pass any bill of attainder, ex post facto law, or law
impairing the obligation of contracts,' as its terms indicate, is directed
against legislative action only, and does not reach erroneous or inconsistent
decisions by the courts. Calder v.
Bull, 3 Dall. 386, 389, 1 L. ed. 648, 649; Fletcher v. Peck, 6 Cranch, 87, 138,
3 L. ed. 162, 178; Kring v. Missouri, 107 U. S. 221, 227, 27 L. ed. 506, 508, 2
Sup. Ct. Rep. 443; Thompson v. Utah, 170 U. S. 343, 351, 42 L. ed. 1061, 1066,
18 Sup. Ct. Rep. 620; Cross Lake Shooting & Fishing Club v. Louisiana, 224
U. S. 632, 638, 56 L. ed. 924, 927, 32 Sup. Ct. Rep. 577; Ross v. Oregon, 227
U. S. 150, 161, 57 L. ed. 458, 463, 33 Sup. Ct. Rep. 220, Ann. Cas. 1914C, 224.
4. To conclude: Taking appellant's petition as a whole, and
not regarding any particular portion of it to the exclusion of the rest,‑‑dealing
with its true and substantial meaning, and not merely with its superficial
import,‑‑it shows that Frank, having been formally accused of a
grave crime, was placed on trial before a court of competent jurisdiction, with
a jury lawfully constituted; he had a public trial, deliberately conducted,
with the benefit of counsel for his defense; he was found guilty and sentenced
pursuant to the laws of the state; twice he has moved the trial court to grant
a new trial, and once to set aside the verdict as a nullity; three times he has
been heard upon appeal before the court of last resort of that state, and in
every instance the adverse action of the trial court has been affirmed; his
allegations of hostile public sentiment and disorder in and about the court
room, improperly influencing the trial court and the jury against him, have
been rejected because found untrue in point of fact upon evidence presumably
justifying that finding, and which he has not produced in the present
proceeding; his contention that his lawful rights were infringed because he was
not permitted to be present when the jury
*345 rendered its verdict has been set aside because it was waived by his
failure to raise the objection in due season when fully cognizant of the
facts. In all of these proceedings the
state, through its courts, has retained jurisdiction over him, has accorded to
him the fullest right and opportunity to be heard according to the established
modes of procedure, and now holds him in custody to pay the penalth of the
crime of which he has been adjudged guilty.
In our opinion, he is not shown to have been deprived of any right
guaranteed to him by the 14th Amendment or any other provision of the
Constitution or laws of the United States; on the contrary, he has been
convicted, and is now held in custody, under 'due process of law' within the
meaning of the Constitution.
The final order of the District Court, refusing the application
for a writ of habeas corpus, is affirmed.
Mr. Justice Holmes, dissenting:
Mr. Justice Hughes and I are of opinion that the judgment should
be reversed. The only question before
us is whether the petition shows on its face that the writ of habeas corpus
should be denied, or whether the districtcourt should have proceeded to try the
facts. The allegations that appear to
us material are these: The trial began
on July 28, 1913, at Atlanta, and was carried on in a court packed with
spectators and surrounded by a crowd outside, all strongly hostile to the petitioner. On Saturday, August 23, this hostility was
sufficient to lead the judge to confer in the presence of the jury with the
chief of police of Atlanta and the colonel of the Fifth Georgia Regiment,
stationed in that city, both of whom were known to the jury. On the same day, the evidence seemingly
having been closed, the public press, apprehending *346 danger, united in a request to the court that the proceedings
should not continue on that evening.
Thereupon the court adjourned until Monday morning. On that morning, when the solicitor general
entered the court, he was greeted with applause, stamping of feet and clapping
of hands, and the judge, before beginning his charge, had a private
conversation with the petitioner's counsel in which he expressed the opinion
that there would be 'probable danger of violence' if there should be an
acquittal or a disagreement, and that it would be safer for not only the
petitioner but his counsel to be absent from court when the verdict was brought
in. At the judge's request they agreed
that the petitioner and they should be absent, and they kept their word. When the verdict was rendered, and before
more than one of the jurymen had been polled, there was such a roar of applause
that the polling could not go on until order was restored. The noise outside was such that it was
difficult for the judge to hear the answers of the jurors, although he was only
10 feet from them. With these
specifications of fact, the petitioner alleges that the trial was dominated by
a hostile mob and was nothing but an empty form.
We lay on one side the question whether the petitioner could or
did waive his right to be present at the polling of the jury. That question was apparent in the form of
the trial and was raised by the application for a writ of error; and although,
after the **595 application to the
full court, we thought that the writ ought to be granted, we never have been
impressed by the argument that the presence of the prisoner was required by the
Constitution of the United States. But
habeas corpus cuts through all forms and goes to the very tissue of the
structure. It comes in from the
outside, not in subordination to the proceedings, and although every form may
have been preserved, opens the inquiry whether they have been more than an
empty shell.
*347 The argument for the
appellee in substance is that the trial was in a court of competent
jurisdiction, that it retains jurisdiction although, in fact, it may be
dominated by a mob, and that the rulings of the state court as to the fact of
such domination cannot be reviewed. But
the argument seems to us inconclusive.
Whatever disagreement there may be as to the scope of the phrase 'due
process of law,' there can be no doubt that it embraces the fundamental
conception of a fair trial, with opportunity to be heard. Mob law does not become due process of law
by securing the assent of a terrorized jury.
We are not speaking of mere disorder, or mere irregularities in
procedure, but of a case where the processes of justice are actually
subverted. In such a case, the Federal
court has jurisdiction to issue the writ.
The fact that the state court still has its general jurisdiction and is
otherwise a competent court does not make it impossible to find that a jury has
been subjected to intimidation in a particular case. The loss of jurisdiction is not general, but particular, and
proceeds from the control of a hostile influence.
When such a case is presented, it cannot be said, in our view,
that the state court decision makes the matter res judicata. The state acts when,
by its agency, it finds the prisoner guilty and condemns him. We have held in a civil case that it is no
defense to the assertion of the Federal right in the Federal court that the
state has corrective procedure of its own‑‑that still less does
such procedure draw to itself the final determination of the Federal
question. Simon v. Southern R. Co. 236
U. S. 115, 122, 123, 59 L. ed. ‑‑‑‑, 35 Sup. Ct. Rep.
255. We see no reason for a less
liberal rule in a matter of life and death.
When the decision of the question of fact is so interwoven with the
decision of the question of constitutional right that the one necessarily
involves the other, the Federal court must examine the facts. Kansas City
Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 573, 591, 56 L. ed.
556, 565, 32 Sup. Ct. Rep. 316; Norfolk & W. R. Co. v. Conley *348 March 8, 1915 [236 U. S. 605, 59
L. ed. ‑‑‑‑, 35 Sup. Ct. Rep. 437]. Otherwise, the
right will be a barren one. It is
significant that the argument for the state does not go so far as to say that
in no case would it be permissible, on application for habeas corpus, to
override the findings of fact by the state courts. It would indeed be a most serious thing if this court were so to
hold, for we could not but regard it as a removal of what is perhaps the most
important guaranty of the Federal Constitution. If, however, the argument stops short of this, the whole
structure built upon the state procedure and decisions falls to the ground.
To put an extreme case and show what we mean, if the trial and the
later hearing before the supreme court had taken place in the presence of an
armed force known to be ready to shoot if the result was not the one desired,
we do not suppose that this court would allow itself to be silenced by the
suggestion that the record showed no flaw.
To go one step further, suppose that the trial had taken place under
such intimidation, and that the supreme court of the state, on writ of error,
had discovered no error in the record, we still imagine that this court would
find a sufficient one outside of the record, and that it would not be disturbed
in its conclusion by anything that the supreme court of the state might have
said. We therefore lay the suggestion
that the supreme court of the state has disposed of the present question by its
judgment on one side, along with the question of the appellant's right to be
present. If the petition discloses facts that amount to a loss of jurisdiction
in the trial court, jurisdiction could not be restored by any decision
above. And notwithstanding the
principle of comity and convenience (for, in our opinion, it is nothing more,
United States v. Sing Tuck, 194 U. S. 161, 168, 48 L. ed. 917, 920, 24 Sup. Ct.
Rep. 621) that calls for a resort to the local appellate tribunal before coming
to the courts of the United States for a writ of habeas corpus, when, as here,
that resort has been had in vain, the power to secure fundamental rights *349 that had existed at every stage
becomes a duty, and must be put forth.
The single question in our minds is whether 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 its face unwarranted, by the specifications,
which may be presumed to set forth the strongest indications of the fact at the
petitioner'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 **596 forms, they
are extremely likely to be impregnated by the environing atmosphere. And when we find the judgment of the expert
on the spot,‑‑of the judge whose business it was to preserve not
only form, but substance‑‑to have been that if one juryman yielded
to the reasonable doubt 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 it ought to be heard, whatever the
decision of the state court may have been, and it 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 reason to fear an
impairment of the authority of the state to punish the guilty. We do not think it impracticable in any part
of this country to have trials free from outside control. But to maintain this immunity it may be
necessary that the supremacy of the law and of the Federal Constitution should
be vindicated in a case like this. It
may be that on a hearing a different complexion would be given to the judge's
alleged request and expression of fear.
But supposing the alleged facts to be true, we are *350 of opinion that if they were before the supreme court, it
sanctioned a situation upon which the courts of the United States should act;
and if, for any reason, they were not before the supreme court, it is our duty
to act upon them now, and to declare lynch law as little valid when practised
by a regularly drawn jury as when administered by one elected by a mob intent
on death.