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
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 courtroom
during the trial and up to and at the reception of the verdict
amounted to mob domination, that not only
Page 237 U. S. 325
the jury, but the presiding judge, succumbed to it, and that
this, in effect, wrought a dissolution of the court, so that the
proceedings were
coram non judice.
(2) That Frank's right to be present during the entire trial
until and at the return of the verdict was an essential part of the
right of trial by jury, which could not be waived either by himself
or his counsel.
(3) That his presence was so essential to a proper hearing that
the reception of the verdict in his absence, and in the absence of
his counsel, without his consent or authority, was a departure from
the due process of law guaranteed by the Fourteenth 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 (83
S.E.Rep. 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
Page 237 U. S. 326
corpus under § 753, Rev.Stat.Comp. Stat. 1913, § 1281. Under the
terms of that section, in order to entitle the present appellant to
the relief sought, it must appear that he is held in custody in
violation of the Constitution of the United States.
Rogers v.
Peck, 199 U. S. 425,
199 U. S. 434.
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,
93 U. S. 21;
Ex parte Siebold, 100 U. S. 371,
100 U. S. 375;
Ex parte Royall, 117 U. S. 241,
117 U. S. 250;
In re Frederich, Petitioner, 149 U. S.
70,
149 U. S. 75;
Baker v. Grice, 169 U. S. 284,
169 U. S. 290;
Tinsley v. Anderson, 171 U. S. 101,
171 U. S. 105;
Markuson v. Boucher, 175 U. S. 184.
As to the "due process of law" that is required by the
Fourteenth 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,
92 U. S. 93;
Hurtado v. California, 110 U. S. 516,
110 U. S. 535;
Andrews v. Swartz, 156 U. S. 272,
156 U. S. 276;
Bergemann v. Backer, 157 U. S. 655,
157 U. S. 659;
Rogers v. Peck, 199 U. S. 425,
199 U. S. 434;
United States ex rel. Drury v. Lewis, 200 U. S.
1,
200 U. S. 7;
Felts v. Murphy, 201 U. S. 123,
201 U. S. 129;
Howard v. Kentucky, 200 U. S. 164.
It is therefore conceded by counsel for appellant that,
Page 237 U. S. 327
in the present case, we may not review irregularities or
erroneous rulings upon the trial, however serious, and that the
writ of habeas corpus will lie only in case the judgment under
which the prisoner is detained is shown to be absolutely void for
want of jurisdiction in the court that pronounced it, either
because such jurisdiction was absent at the beginning, or because
it was lost in the course of the proceedings. And since no question
is made respecting the original jurisdiction of the trial court,
the contention is and must be that by the conditions that
surrounded the trial, and the absence of defendant when the verdict
was rendered, the court was deprived of jurisdiction to receive the
verdict and pronounce the sentence.
But it would be clearly erroneous to confine the inquiry to the
proceedings and judgment of the trial court. The laws of the state
of Georgia (as will appear from decisions elsewhere cited) provide
for an appeal in criminal cases to the Supreme Court of that state
upon divers grounds, including such as those upon which it is here
asserted that the trial court was lacking in jurisdiction. And
while the Fourteenth Amendment does not require that a state shall
provide for an appellate review in criminal cases (
McKane v.
Durston, 153 U. S. 684,
153 U. S. 687;
Andrews v. Swartz, 156 U. S. 272,
156 U. S. 275;
Rogers v. Peck, 199 U. S. 425,
199 U. S. 435;
Reetz v. Michigan, 188 U. S. 505,
188 U. S.
508), 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 Fourteenth
Amendment.
In fact, such questions as are here presented under the due
process clause of the Fourteenth Amendment, though sometimes
discussed as if involving merely the jurisdiction of some court or
other tribunal, in a larger and more accurate
Page 237 U. S. 328
sense involve the power and authority of the state itself. The
prohibition is addressed to the state; if it be violated, it makes
no difference in a court of the United States by what agency of the
state this is done; so, if a violation be threatened by one agency
of the state, but prevented by another agency of higher authority,
there is no violation by the state. It is for the state to
determine what courts or other tribunals shall be established for
the trial of offenses against its criminal laws, and to define
their several jurisdictions and authority as between themselves.
And the question whether a state is depriving a prisoner of his
liberty without due process of law, where the offense for which he
is prosecuted is based upon a law that does no violence to the
Federal Constitution, cannot ordinarily be determined, with
fairness to the state, until the conclusion of the course of
justice in its courts.
Virginia v. Rives, 100 U.
S. 313,
100 U. S. 318;
Civil Rights Cases, 109 U. S. 3,
109 U. S. 11;
McKane v. Durston, 153 U. S. 684,
153 U. S. 687;
Dreyer v. Illinois, 187 U. S. 71,
187 U. S. 83-84;
Reetz v. Michigan, 188 U. S. 505,
188 U. S. 507;
Carfer v. Caldwell, 200 U. S. 293,
200 U. S. 297;
Waters-Pierce Oil Co. v. Texas, 212 U. S.
86,
212 U. S. 107;
In re Frederich, Petitioner, 149 U. S.
70,
149 U. S. 75;
Whitten v. Tomlinson, 160 U. S. 231,
160 U. S. 242;
Baker v. Grice, 169 U. S. 284,
169 U. S. 291;
Minnesota v. Brundage, 180 U. S. 499,
180 U. S. 503;
Urquhart v. Brown, 205 U. S. 179,
205 U. S.
182.
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,
117 U. S. 251;
In re Frederich, Petitioner,
Page 237 U. S. 329
149 U. S. 70,
149 U. S. 77;
Whitten v. Tomlinson, 160 U. S. 231,
160 U. S. 242;
Baker v. Grice, 169 U. S. 284,
169 U. S. 291;
Tinsley v. Anderson, 171 U. S. 101,
171 U. S. 105;
Markuson v. Boucher, 175 U. S. 184;
Urquhart v. Brown, 205 U. S. 179.
And see Henry v. Henkel, 235 U. S. 219,
235 U. S. 228.
Such cases as
In re Loney, 134 U.
S. 372,
134 U. S. 376,
and
In re Neagle, 135 U. S. 1, 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,
117 U. S. 252,
applying in a habeas corpus case what was said in
Covell v.
Heyman, 111 U. S. 176,
111 U. S. 182,
a case of conflict of jurisdiction:
"The forbearance which courts of coordinate 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 In re Tyler, 149 U. S. 164,
149 U. S.
186.
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
Page 237 U. S. 330
of conviction passed by a court having jurisdiction of the
subject matter, and the indictment against him states the case and
is based upon a valid existing law, habeas corpus is not an
available remedy, save for want of jurisdiction appearing upon the
face of the record of the court wherein he was convicted. The rule
at the common law, and under the act 31 Car. II. chap. 2, and other
acts of Parliament prior to that of July 1, 1816 (56 Geo. III.
chap. 100, § 3), seems to have been that a showing in the return to
a writ of habeas corpus that the prisoner was held under final
process based upon a judgment or decree of a court of competent
jurisdiction closed the inquiry. So it was held, under the
Judiciary Act of 1789 (ch. 20, § 14, 1 Stat. 73, 81), in
Ex parte
Watkins, 3 Pet. 193,
28 U. S. 202. And
the rule seems to have been the same under the Act of March 2, 1833
(ch. 57, § 7, 4 Stat. 632, 634), and that of August 29, 1842 (ch.
257, 5 Stat. 539). But when Congress, in the Act of February 5,
1867 (ch. 28, 14 Stat. 385), 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. 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
Page 237 U. S. 331
Act of 31 Car. II. chap. 2, a more searching investigation, in
which the applicant is put upon his oath to set forth the truth of
the matter respecting the causes of his detention, and the court,
upon determining the actual facts, is to "dispose of the party as
law and justice require."
There being no doubt of the authority of the Congress to thus
liberalize the common law 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.
Cuddy,
Petitioner, 131 U. S. 280,
131 U. S. 283,
131 U. S. 286;
In re Mayfield, 141 U. S. 107,
141 U. S. 116;
Whitten v. Tomlinson, 160 U. S. 231,
161 U. S. 242;
In re Watts and Sachs, 190 U. S. 1,
190 U. S. 35.
In the light, then, of these established rules and principles:
that the due process of law guaranteed by the Fourteenth 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
Page 237 U. S. 332
not merely a single step in those proceedings; and that it is
incumbent upon the prisoner to set forth in his application a sworn
statement of the facts concerning his detention and by virtue of
what claim or authority he is detained -- we proceed to consider
the questions presented.
1. And first, the question of the disorder and hostile sentiment
that are said to 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., 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
28 U. S. 3
Pet. 193,
28 U. S. 201;
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 110;
Ex parte Terry, 128 U. S. 289,
128 U. S.
301.
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
Page 237 U. S. 333
life without due process of law. Dealing with the narrative,
then, in its essence and in its relation to the context, it is
clearly appears to be only a reiteration of allegations that
appellant had a right to submit, and did submit, first to the trial
court and afterwards to the Supreme Court of the state, as a ground
for avoiding the consequences of the trial; that the allegations
were considered by those courts, successively, at times and places
and under circumstances wholly apart from the atmosphere of the
trial, and free from any suggestion of mob domination or the like;
and that the facts were examined by those courts not only upon the
affidavits and exhibits submitted in behalf of the prisoner which
are embodied in his present petition as a part of his sworn account
of the causes of his detention, but also upon rebutting affidavits
submitted in behalf of the state, and which, for reasons not
explained, he has not included in the petition. As appears from the
prefatory statement, the allegations of disorder were found by both
of the state courts to be groundless except in a few particulars as
to which the courts ruled that they were irregularities not harmful
in fact to defendant, and therefore insufficient in law to avoid
the verdict. 141 Georgia 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. 83 S.E.Rep. 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
Page 237 U. S. 334
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 Pacific Railroad Co. v.
United States, 168 U. S. 1,
168 U. S. 48. 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,
128 U. S. 305,
128 U. S. 310;
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
Fourteenth 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
Page 237 U. S. 335
be heard according to the usual course of law in such cases.
We, of course, agree that, if a trial is in fact dominated by a
mob, so that the jury is intimidated and the trial judge yields,
and so that there is an actual interference with the course of
justice, there is, in that court, a departure from due process of
law in the proper sense of that term. And if the state, supplying
no corrective process, carries into execution a judgment of death
or imprisonment based upon a verdict thus produced by mob
domination, the state deprives the accused of his life or liberty
without due process of law.
But the state may supply such corrective process as to it seems
proper. Georgia has adopted the familiar procedure of a motion for
a new trial, followed by an appeal to its Supreme Court, not
confined to the mere record of conviction, but going at large, and
upon evidence adduced outside of that record, into the question
whether the processes of justice have been interfered with in the
trial court. Repeated instances are reported of verdicts and
judgments set aside and new trials granted for disorder or mob
violence interfering with the prisoner's right to a fair trial.
Myers v. State, 97 Georgia 76 (5), 99;
Collier v.
State, 115 Georgia 803.
Such an appeal was accorded to the prisoner in the present case
[
Frank v. State, 141 Georgia 243 (16), 280], 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
Page 237 U. S. 336
through disorder and manifestations of hostile sentiment cannot,
in this collateral inquiry, be treated as a nullity, but must be
taken as setting forth the truth of the matter; certainly, until
some reasonable ground is shown for an inference that the court
which rendered it either was wanting in jurisdiction or at least
erred in the exercise of its jurisdiction, and that the mere
assertion by the prisoner that the facts of the matter are other
than the state court, upon full investigation, determined them to
be, will not be deemed sufficient to raise an issue respecting the
correctness of that determination; especially not, where the very
evidence upon which the determination was rested in withheld by him
who attacks the finding.
It is argued that if, in fact, there was disorder such as to
cause a loss of jurisdiction in the trial court, jurisdiction could
not be restored by any decision of the Supreme Court. This, we
think, embodies more than one error of reasoning. It regards a part
only of the judicial proceedings, instead of considering the entire
process of law. It also begs the question of the existence of such
disorder as to cause a loss of jurisdiction in the trial court,
which should not be assumed, in the face of the decision of 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.
Page 237 U. S. 337
The decisions of the Georgia courts in this and other cases show
that such disorder is repressed, where practicable, by the direct
intervention of the trial court and the officers under its command,
and that other means familiar to the common law practice, such as
postponing the trial, changing the venue, and granting a new trial,
are liberally resorted to in order to protect persons accused of
crime in the right to a fair trial by an impartial jury. The
argument for appellant amounts to saying that this is not enough;
that, by force of the "due process of law" provision of the
Fourteenth 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 Georgia 76, (5), 99;
Collier v.
State, 115 Georgia 803;
Sanders v. State, 85 Ind.
318;
Massey v. State, 31 Tex.Cr.Rep. 371, 381, S.C., 20
S.W. 758; and
State v. Weldon, 91 S. C. 29, 38 -- 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
Page 237 U. S. 338
awarded as the appropriate remedy. So, in the cases where the
trial judge abdicated his proper functions or absented himself
during the trial (
Hayes v. State, 58 Georgia 36 (12), 49;
Blend v. People, 41 N.Y. 604;
Shaw v. People, 3
Hun, 272,
aff'd, 63 N.Y. 36;
Hinman v. People, 13
Hun, 266;
McClure v. State, 77 Ind. 287;
O'Brien v.
People, 17 Colorado 561;
Ellerbe v. State, 75 Miss.
522) 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 courtroom 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 Georgia 25, 29;
Martin v.
State, 51 Georgia 567;
Nolan v. State, 53 Georgia
137, S.C., 55 Georgia 521;
Smith v. State, 59 Georgia 513;
Bonner v. State,
67 Georgia 510; Barton v. State,
67
Georgia 653; Cawthon v. State, 119 Georgia 395, 412;
Bagwell v. State, 129 Georgia 170;
Lyons v.
State, 7 Georgia App. 50. 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
Page 237 U. S. 339
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 Georgia 170.
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 (83
S.E.Rep. 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
Page 237 U. S. 340
nothing in the Fourteenth Amendment to prevent a state from
adopting and enforcing so reasonable a regulation of procedure.
Dreyer v. Illinois, 187 U. S. 71,
187 U. S.
77-80.
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 Fourteenth 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,
110 U. S. 532,
110 U. S. 538;
Lem Woon v. Oregon, 229 U. S. 586,
229 U. S. 589,
and cases cited). Trial by jury is not essential to it, either in
civil cases (
Walker v. Sauvinet, 92 U. S.
90), or in criminal (
Hallinger v. Davis,
146 U. S. 314,
146 U. S. 324;
Maxwell v. Dow, 176 U. S. 581,
176 U. S. 594,
176 U. S. 602,
176 U. S.
604).
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,
110 U. S. 578
(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
Page 237 U. S. 341
this Court was the violation of the plan mandate of the local
statute; and the power of the accused or his counsel to dispense
with the requirement as to his personal presence was denied on the
ground that his life could not be lawfully taken except in the mode
prescribed by law. No other question was involved.
See Diaz v.
United States, 223 U. S. 442,
223 U. S. 455,
223 U. S.
458.
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
Fourteenth Amendment is very clearly evidenced by
Hallinger v.
Davis, 146 U. S. 314, and
Lewis v. United States, 146 U. S. 370,
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 Fourteenth Amendment. So, in
Howard v. Kentucky,
200 U. S. 164,
200 U. S. 175
-- 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
Page 237 U. S. 342
amount to a denial of due process within the meaning of the
Fourteenth 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,
175 U. S. 176,
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,
182 U. S. 435,
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,
201 U. S. 129,
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 ear trumpet 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,
211 U. S. 101,
211 U. S. 111,
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 Fourteenth
Amendment. In
Jordan v. Massachusetts, 225 U.
S. 167,
225 U. S. 177,
where one of the jurors was subject to reasonable doubt as to
his
Page 237 U. S. 343
sanity, and the state court, pursuant to the local law of
criminal procedure, determined upon a mere preponderance of the
evidence that he was sane, the conviction was affirmed. In
Garland v. Washington, 232 U. S. 642,
232 U. S. 645,
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 Fourteenth 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 decision of the Supreme Court of
Georgia in affirming the denial of the motion to set aside the
verdict (83 S.E.Rep. 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.
Page 237 U. S. 344
State, 53 Georgia 137, S.C., 55 Georgia 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,
3 U. S. 389;
Fletcher v.
Peck, 6 Cranch 87;
Kring v. Missouri,
107 U. S. 221,
107 U. S. 227;
Thompson v. Utah, 170 U. S. 343,
170 U. S. 351;
Cross Lake Shooting & Fishing Club v. Louisiana,
224 U. S. 632,
224 U. S. 638;
Ross v. Oregon, 227 U. S. 150,
227 U. S.
161.
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 courtroom,
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
Page 237 U. S. 345
rendered its verdict has been set aside because it was waived by
his failure to raise the objection in due season when fully
cognizant of the facts. In all of these proceedings, the state,
through its courts, has retained jurisdiction over him, has
accorded to him the fullest right and opportunity to be heard
according to the established modes of procedure, and now holds him
in custody to pay the penalty 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 Fourteenth 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.
* The Constitution of Georgia provides (Art. 1, § 1, Par. 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 Georgia 521;
Bagwell v. State, 129 Georgia 170.
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
Page 237 U. S. 346
danger, united in a request to the court that the proceedings
should not continue on that evening. Thereupon, the court adjourned
until Monday morning. On that morning, when the solicitor general
entered the court, he was greeted with applause, stamping of feet
and clapping of hands, and the judge, before beginning his charge,
had a private conversation with the petitioner's counsel in which
he expressed the opinion that there would be "probable danger of
violence" if there should be an acquittal or a disagreement, and
that it would be safer for not only the petitioner but his counsel
to be absent from court when the verdict was brought in. At the
judge's request, they agreed that the petitioner and they should be
absent, and they kept their word. When the verdict was rendered,
and before more than one of the jurymen had been polled, there was
such a roar of applause that the polling could not go on until
order was restored. The noise outside was such that it was
difficult for the judge to hear the answers of the jurors, although
he was only 10 feet from them. With these specifications of fact,
the petitioner alleges that the trial was dominated by a hostile
mob, and was nothing but an empty form.
We lay on one side the question whether the petitioner could or
did waive his right to be present at the polling of the jury. That
question was apparent in the form of the trial, and was raised by
the application for a writ of error; and although, after the
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.
Page 237 U. S. 347
The argument for the appellee, in substance, is that the trial
was in a court of competent jurisdiction, that it retains
jurisdiction although, in fact, it may be dominated by a mob, and
that the rulings of the state court as to the fact of such
domination cannot be reviewed. But the argument seems to us
inconclusive. Whatever disagreement there may be as to the scope of
the phrase "due process of law," there can be no doubt that it
embraces the fundamental conception of a fair trial, with
opportunity to be heard. Mob law does not become due process of law
by securing the assent of a terrorized jury. We are not speaking of
mere disorder, or mere irregularities in procedure, but of a case
where the processes of justice are actually subverted. In such a
case, the Federal court has jurisdiction to issue the writ. The
fact that the state court still has its general jurisdiction and is
otherwise a competent court does not make it impossible to find
that a jury has been subjected to intimidation in a particular
case. The loss of jurisdiction is not general, but particular, and
proceeds from the control of a hostile influence.
When such a case is presented, it cannot be said, in our view,
that the state court decision makes the matter
res
judicata. The state acts when, by its agency, it finds the
prisoner guilty and condemns him. We have held in a civil case that
it is no defense to the assertion of the Federal right in the
Federal court that the state has corrective procedure of its own --
that still less does such procedure draw to itself the final
determination of the Federal question.
Simon v. Southern Ry.
Co., 236 U. S. 115,
236 U. S.
122-123. 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
Ry. Co. v. C. H. Albers Commission Co., 223 U.
S. 573,
223 U. S. 591;
Norfolk & West. Ry. Co.
v. Conley,
Page 237 U. S. 348
March 8, 1915,
236 U. S. 605.
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,
194 U. S. 168)
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
Page 237 U. S. 349
that had existed at every stage becomes a duty, and must be put
forth.
The single question in our minds is whether a petition alleging
that the trial took place in the midst of a mob savagely and
manifestly intent on a single result is shown on its face
unwarranted, by the specifications, which may be presumed to set
forth the strongest indications of the fact at the petitioner's
command. This is not a matter for polite presumptions; we must look
facts in the face. Any judge who has sat with juries knows that, in
spite of 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
Page 237 U. S. 350
of opinion that, if they were before the Supreme Court, it
sanctioned a situation upon which the courts of the United States
should act; and if, for any reason, they were not before the
Supreme Court, it is our duty to act upon them now, and to declare
lynch law as little valid when practised by a regularly drawn jury
as when administered by one elected by a mob intent on death.
