Frank v. Mangum
[Syllabus from pages 309-311 intentionally omitted]
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 nullity  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).
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.
Messrs. Louis Marshall, Henry C. Peeples, and Henry A. Alexander for appellant.
[Argument of Counsel from pages 318-323 intentionally omitted]
Messrs. Warren Grice and Hugh M. Dorsey for appellee.
Mr. Justice Pitney, after making the foregoing statement, delivered the opinion of the court:
^1 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.