Frank v. Mangum
237 U.S. 309 (1915)

Annotate this Case

U.S. Supreme Court

Frank v. Mangum, 237 U.S. 309 (1915)

Frank v. Mangum

No. 775

Argued February 25, 26, 1915

Decided April 12, 1915

237 U.S. 309

Syllabus

Petitioner was formally indicted for murder, placed on trial before a court of competent jurisdiction with a jury lawfully constituted, had a public trial deliberately conducted and with counsel for defense, was found guilty and sentenced pursuant to law of the State; subsequently he twice moved the trial court to grant new trial, and once to set verdict aside as a nullity, and was heard three times on appeal by the court of last resort, and, in all instances, the trial court was affirmed. Petitioner alleged that a hostile public sentiment improperly influenced the trial court and jury against him and in the courtroom took the form of mob domination; that his lawful rights were interfered with because he was not permitted to be present when the verdict was rendered. The state courts however held, on evidence presumably justifying such a finding but not produced in the habeas corpus proceeding, that the allegations as to mob violence and influence were not sustained, and that the objection as to absence on rendering the verdict had been waived by failure to raise it in due season when fully informed as to the facts. Petitioner then applied to the District Court of the United States for release on habeas corpus on the ground that the conditions alleged to have existed in the courtroom amounted to mob domination, and deprived

Page 237 U. S. 310

the court of jurisdiction to receive a verdict and pronounce sentence against him, that his involuntary absence from the courtroom was a deprivation of an essential part of the right of trial by jury, and amounted to a denial of due process of law, and that the decision of the state court overruling his objections to his enforced absence from court on rendition of verdict was so far inconsistent with previous decisions of the same court as to be equivalent in effect to an ex post facto law. His petition was denied, and an appeal allowed by a Justice of this Court. Held by this Court that:

The question of deprivation of liberty without due process of law involves not the jurisdiction of any particular court, but the power and authority of the State itself, and where there is no claim that the offense is based on an unconstitutional statute, the question of whether the petitioner in habeas corpus has been deprived of his liberty in violation of constitutional rights cannot be determined, with fairness to the State until the conclusion of the course of justice in its own courts, and the United States courts must consider not merely the proceedings of the trial court, but also those in the appellate court of the State.

Due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form and procedure; and, in determining whether one convicted of crime has been denied due process, the entire course of proceedings, and not merely a single step, must be considered.

Although petitioner's allegation that mob domination existed in the trial court might, standing alone and if taken as true, show a condition inconsistent with due process of law, if the record in the habeas corpus proceedings in the Federal court also shows that the same allegations had been considered by the state court, and, upon evidence there taken but not disclosed in the Federal court, had been found to be groundless, that finding cannot be regarded as a nullity, but must be taken as setting forth the truth until reasonable ground is shown for a contrary conclusion.

The due process of law clause of the Fourteenth Amendment does not preclude a State from adopting and enforcing a rule of procedure that an objection to absence of the prisoner from the courtroom on rendition of verdict by the jury cannot be taken on motion to set aside the verdict as a nullity after a motion for new trial had been made on other grounds, not including this one, and denied. Such a regulation of practice is not unreasonable.

The due process of law clause of the Fourteenth Amendment does not impose upon the State any particular form or mode of

Page 237 U. S. 311

procedure so long as essential rights of notice and hearing or opportunity to be heard before a competent tribunal are not interfered with, and it is within the power of the State to establish a rule of practice that a defendant may waive his right to be present on rendition of verdict.

The right of the State to abolish jury trial altogether without violation of the Fourteenth Amendment includes the right to limit the effect to be given to an error respecting an incident of such trial -- such as the presence of defendant when the jury renders its verdict.

The prohibition in the Federal Constitution against a State passing an ex post facto law is directed against legislative action only, and does not reach erroneous or inconsistent decisions of the courts of the State.

The petitioner in this case was not denied due process of law in the conduct of his trial by the courts of first instance or appellate, nor was the decision of the appellate court, by reason of inconsistency with prior decisions, equivalent to an ex post facto law.

Leo M. Frank, the present appellant, being a prisoner in the custody of the Sheriff in the jail of 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 Rev.Stat. § 753 upon the ground that he was in custody in violation of the Constitution of the United States, especially that clause of the Fourteenth 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,

Page 237 U. S. 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 courtroom, 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 courtroom 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 courtroom and the supporting and rebutting proofs. On February 17, 1914, the judgment of conviction was affirmed. 141 Georgia 243.

Page 237 U. S. 313

Concerning the question of disorder, the findings and conclusions of the court were, in substance (141 Georgia 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 examining 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 courtroom 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,

Page 237 U. S. 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 Georgia 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 courtroom, 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

Page 237 U. S. 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 (142 Georgia 617, S.C., 83 S.E.Rep. 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 courtroom 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

Page 237 U. S. 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 Fourteenth Amendment. The motion was also based upon allegations of disorder in the courtroom 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 (83 S.E.Rep. 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 Georgia 395, 412); 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 Georgia 740); 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 Georgia 25; Martin v. State, 51 Georgia 567; Bonner v. State, 67 Georgia 510; Wilson v. State, 87 Georgia 583; Tiller v. State, 96 Georgia 430; and Hopson v. State, 116 Ga.

Page 237 U. S. 317

90), 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 Georgia 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.

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 courtroom, and states that Frank was absent at the time the verdict was rendered without his consent, pursuant to a

Page 237 U. S. 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 petition, 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 Georgia 243); it also refers to the opinion upon the affirmance of the motion to set aside the verdict as a nullity (83 S.E.Rep. 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.

Page 237 U. S. 324

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