Frank v. State
| Decision Date | 14 November 1914 |
| Docket Number | (No. 67.) |
| Citation | 83 S.E. 645,142 Ga. 741 |
| Parties | FRANK. v. STATE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
"Due process of law" implies the administration of laws which apply equally to all persons according to established rules, and which are "not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing."
(a) Consequently, where one indicted for murder has had full opportunity under the Constitution and laws of the state to defend his case in the courts of the state having jurisdiction thereof, in person, by attorney, or both, according to established constitutional rules of procedure, he has been afforded due process of law under the state and federal Constitutions, which provide that no person shall be deprived of life, liberty, or property without due process of law.
(b) And where such opportunity has been, under constitutional laws of the state, afforded without discrimination, he has been accorded the equal protection of the laws.
[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 711-713, 726, 727, 732, 746, 747, 749; Dec. Dig. §§ 250, 251, 257.*
For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.]
If, on the trial of one indicted for murder, a verdict of guilty is received in the absence of the prisoner, and without his consent, while he is incarcerated in jail, a motion for new trial is an available remedy in such case, if made in time.
(a) But where a motion for a new trial is made by the defendant, with knowledge of the fact that the verdict was rendered in his absence, and such motion does not contain that fact as ground for new trial, though it is recited therein, it is too late, after the motion for new trial has been denied, and the judgment has been affirmed by this court, to make a motion to set aside the verdict on that ground.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §52135, 2163-2192, 2195, 2196, 2219-2224; Dec. Big. jj§ 912, 918.*]
It is the right of a defendant, on trial for crime in this state, to be present at every stage of his trial, and to be tried according to established procedure. But he may waive formal trial and verdict, and plead guilty, and this includes the power to waive mere incidents of trial, such as his presence at the reception of the verdiet.
(a) Accordingly, where, on the trial of one accused of murder, the counsel for the accused, at the suggestion of the trial judge, waived the presence of the defendant at the reception of the verdict, without his knowledge or consent, and where the verdict was received and the jury polled by the court when the defendant was not present, but was confined in jail, and the defendant's counsel were also absent, and where it appears that, when the defendant was sentenced to suffer death, he was present in court in person and by attorneys, and later, within the time allowed by law, made a motion for a new trial, which recited, among other things, his absence at the reception of the verdict, and that his presence had been waived by his counsel, and his motion for new trial was refused by the trial court, and its judgment affirmed by the Supreme Court, the defendant will be considered as having acquiesced in the waiver, made by his counsel, of his presence at the reception of the verdict, and he cannot at a subsequent date set up such absence as a ground to set aside the verdict in a motion made for that purpose.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2118-2121; Dec. Dig. § 808.*]
In so far as the motion to set aside the verdict relies on allegations of disorder within and without the courtroom and popular excitement as affecting the trial, such matters peculiarly furnish grounds to be included in a motion for a new trial, under the practice in this state. In fact, contentions as to matters of that character were included in the original motion for a new trial, and on examination as to the facts were ruled against the movant, and the judgment was affirmed by this court.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2135, 3002-3004; Dec. Dig. §S 912, 1180.*]
Error from Superior Court, Fulton County; B. H. Hill, Judge.
Leo M. Frank was convicted of murder, and brings error. Affirmed.
See, also, 141 Ga. 243, 80 S. E. 1016; 142 Ga. ——, 83 S. E. 233.
Leo M. Frank filed his motion in writing, which was afterwards amended, to set aside the verdict of guilty of murder rendered against him in the superior court of Fulton county. To this motion the state of Georgia interposed its demurrer, both general and special. On the hearing of the demurrer, and at the conclusion thereof, judgment was rendered by the court on June 6, 1914, sustaining the demurrer upon each and every ground, and dismissing the motion. To this judgment Leo M. Frank excepts, and assigns the same as error. From the motion it appears that the verdict of guilty of murder was received by the court on August 25, 1913, and it was sought to be set aside for the following reasons:
At the time the verdict was received, and the jury trying the case was discharged, the defendant was in the custody of the law and incarcerated in the common jail of the county. He was not present when the verdict was received and the jury discharged, as he had the right in law to be, and as the law required he should be. He did not waive the right to be present, nor did he authorize any one to waive it for him, nor consent that he should not be present. He did not know that the verdict had been rendered and the jury discharged until after the reception of the verdict and the discharge of the jury, and did not know of any waiver of his presence made by his counsel until after sentence of death had been pronounced upon him. On the day the verdict was rendered, and shortly before the judge who presided at the trial of the cause began his charge to the jury, the judge, in the jury room of the courthouse wherein the trial was proceeding, privately conversed with two of the counsel of the defendant, and in the conversation referred to the probable danger of violence that the defendant would be in if he were present when the verdict was rendered, if the verdict should be one of acquittal; and after the judge has thus expressed himself he requested the counsel, thus spoken to, to agree that the defendant need not be present at the time the verdict was rendered and the jury was polled. In these circumstances the counsel did agree with the judge that the defendant should not be present at the rendition of the verdict. In the same conversation the judge expressed the opinion also to the counsel that even counsel of the defendant might be in danger if they should be present at the reception of the verdict. In these circumstances defendant's counsel, Rosser and Arnold, did agree with the judge that defendant should not be present at the rendition of the verdict. The defendant was not present at the conversation, and knew nothing about any agreement made, as above stated, until after the verdict was received and the jury was discharged, and until after sentence of death was pronounced upon him. Pursuant to the conversation above stated, neither of defendant's counsel were present when the verdict was received and the jury discharged; nor was the defendant present when the verdict was rendered and the jury discharged. Defendant says that he did not give counsel, nor any one else, any authority to waive or renounce the right of the defendant to be present at the reception of the verdict, or to agree that the defendant should not be present thereat; that the relation of client and attorney did not give them such authority, though counsel acted in the most perfect good faith and in the interest of the personal safety of the defendant. Defendant did not agree that his counsel, or either of them, might be absent when the verdict was rendered.
Defendant says, upon and because of each of the grounds above stated: The verdict was of no legal effect and was void, and in violation of article 1, § 1, par. 3, of the Constitution of the state of Georgia, which providesthat "no person shall be deprived of life, liberty, or property, except by due process of law." That the reception of the verdict in the "involuntary absence of the defendant" was in violation of and contrary to the provisions of article 6, § 18, par. 1, of the Constitution of the state of Georgia, which provides that "the right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate." That the reception of the verdict in the absence of the defendant was contrary to and in violation of the provisions of the fourteenth amendment to the Constitution of the United States, to wit: "Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That the reception of the verdict in the absence of the defendant was in violation of article 1, § 1, par. 5, of the Constitution of the state of Georgia, to wit: "Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel." Because the trial judge (Hon. L. S. Roan), upon considering "the motion for a new trial made by this defendant, after the reception of said verdict as above stated, rendered his judgment denying said motion and in rendering said judgment stated that the jury had found the defendant guilty, that...
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