Messrs. Louis
Marshall, Henry C. Peeples, and Henry A. Alexander for
appellant.
Messrs. Warren
Grice and Hugh M. Dorsey for appellee.
Statement by Mr. Justice Pitney:
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, 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.
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 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, 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 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 nullity1
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 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 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 to review 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. 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 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 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 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 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; 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, 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
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, 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; **588 Baker
v. Grice, 169 U. S. 284, 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.
203, 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 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 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 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 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 have
influenced 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 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 and the objects for which they are 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 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 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 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. 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 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 treat
this as an error, and by timely motion demand a new trial, or (it
seems) he may elect to treat the verdict 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 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 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 this
court was the violation of the plain 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 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 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 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. 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 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 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 district court 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 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 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.
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. 492, 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 March 8, 1915 [236 U. S. 605, 59 L. ed. 745,
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 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 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 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.