GEORGIA SUPREME COURT. LEO M. FRANK, Plff. in Err., V. STATE OF GEORGIA. (142 Ga. 741, 83 S. E. 645.) Constitutional criminal trial. law 1. Due process of law implies the adminis tration 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) Where such opportunity has been, under constitutional laws of the state, af Headnotes by HILL, J. Note. - Waiver of presence of accused at time of receiving verdict upon trial for felony. The earlier cases on this question are discussed in the note to State v. Way, 14 L.R.A. (N.S.) 603, and that to State v. Gorman, 32 L.R.A. (N.S.) 306. In Davidson v. State, 108 Ark. 191, 158 S. W. 1103, it was held that the accused in a capital case had the right to waive his personal presence at the time of receiving the verdict, and that where his presence had been duly waived a judgment against him should not be reversed on account of his absence with his own consent, unless it appeared that he was prejudiced in some way by such absence. In this case, upon consultation between the attorneys for the defendant and the court, in the absence of both the defendant and the prose cuting attorney, at the request of the attorneys for the defendant, and upon the specific understanding that the agree ment be reduced to writing, waiving the presence of the defendant, if a verdict was returned in his absence, the court and the attorneys for the defendant believing that there was danger of a mob, and such action being in the interest of the defendant, the defendant was conveyed to a jail in another county. The waiver was prepared and signed by the attorneys and other counsel in the case. The court states that in this case it did no more than grant the request conveyed to it through defendant's counsel, that he be removed from the court and from the county for his own safety from threat 2. 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 a new trial, though it is recited therein, it is too late, after the motion for new trial has been de right to be present nied, and the judgment has been affirmed by this court, to make a motion to set aside the verdict on that ground. Criminal law waiver. 3. 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 verdict. (a) Accordingly, where, on the trial of one accused of murder, the counsel for the accused, at the suggestion of the trial ened mob violence. That if he and his counsel conceived it to be necessary for his own safety that he should be absent from the county during the further progress of the trial, he cannot thereafter complain that the verdict was rendered in his absence. It was urged that the defendant did not waive his presence, and the counsel could not waive it for him; but there was a finding to the effect that he did authorize his counsel to take this step, and this finding was held justified under the circumstances of the case, and was not disturbed. The further question involved in FRANK V. STATE, that the accused in a felony case, who was not present at the reception of the verdict, who does not take advantage of this fact upon his motion for a new trial, cannot thereafter take advantage of the same, was considered upon an appeal to the United States Supreme Court from a decree of the Federal district court denying a petition for a writ of habeas corpus in behalf of Frank, 237 U. S. 309, 59 L. ed. 35 Sup. Ct. Rep. 582. That court held that there was no denial of the due process of law guaranteed by the United States Constitution in the practice established in the criminal courts of Georgia that the accused 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 a 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 such motion. W. A. E. motion for 4. In so far as the motion to set aside the verdict relies on allegations of disorder within and without the court room, 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 matter 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. judge, waived the presence of the defend-| county. He was not present when the verant at the reception of the verdict, without dict was received and the jury discharged, his knowledge or consent, and where the as he had the right in law to be, and as the verdict was received and the jury polled by law required he should be. He did not the court when the defendant was not pres- waive the right to be present, nor did he ent, but was confined in jail, and the defendant's counsel was also absent, and where authorize anyone to waive it for him, nor it appears that, when the defendant was consent that he should not be present. He sentenced to suffer death, he was present in did not know that the verdict had been rencourt in person and by attorneys, and later, dered and the jury discharged until after within the time allowed by law, he made a the reception of the verdict and the dismotion for a new trial, which recited, among charge of the jury, and did not know of other things, his absence at the reception of the verdict, and that his presence had been any waiver of his presence made by his waived by his counsel, and his motion for counsel until after sentence of death had a new trial was refused by the trial court, On the day been pronounced upon him. and its judgment affirmed by the supreme the verdict was rendered, and shortly be court, the defendant will be considered as fore the judge who presided at the trial of having acquiesced in the waiver, made by the cause began his charge to the jury, the his counsel, of his presence at the reception judge, in the jury room of the courthouse of the verdict, and he cannot at a subse- wherein the trial was proceeding, privately quent date set up such absence as a ground conversed with two of the counsel of the to set aside the verdict in a motion made defendant, and in the conversation referred for that purpose. to the probable danger of violence that the Appeal · disorder at trial defendant would be in if he were present new trial. when the verdict was rendered, if the verdict should be one of acquittal; and after the judge had 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 the counsel did agree with the judge that the jury was polled. In these circumstances 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 anyone 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. E (November 14, 1914.) RROR to the Superior Court for Fulton County to review a judgment dismissing a motion to set aside a verdict convict ing defendant of murder. Affirmed. Statement by Hill, J.: 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 cause was discharged, the defendant was in the custody of the law and incarcerated in the common jail of the Defendant says, upon and because of each | noises that might occur upon the street; that there was an open alleyway running from Pryor street on the side of the courthouse, and there were windows looking out from the courtroom into this alley, and therein that crowds collected, and any noises in this alley could be heard in the court room; that these crowds were boisterous, and that on the last day of the trial, after the case had been submitted to the | jury, a large and boisterous crowd of several hundred people were standing in the street in front of the court house, and as the solicitor general came out they greeted him with loud and boisterous applause, taking him upon their shoulders and carrying him across the street into a building wherein his office was located; that this crowd did not wholly disperse during the interval between the giving of the case to the jury and the time when the jury reached its verdict; that several times during the trial the crowd in the court room, and outside of the court room, which was audible both to the court and the jury, would applaud when the state scored a point; a large crowd of people standing on the outside, cheering, shouting, and hurrahing, and the crowd in the court room signifying their feelings by applause and other demonstrations, and on the trial, and in the presence of the jury, the trial judge in open court conferred with the chief of police of the city of Atlanta and the colonel of the Fifth Georgia Regiment stationed in Atlanta, which had the natural effect of intimidating the jury, and so influencing them as to make impossible a fair and impartial consideration of defendant's case. Indeed, such demonstrations finally actuated the court in making the request of defendant's counsel, Messrs. Rosser and Arnold, to have the defendant and counsel themselves to be absent at the time the verdict was received in open court, because the judge apprehended violence to the defendant and his counsel; and the apprehension of such violence naturally saturated the minds of the jury, so as to deprive the defendant of a fair and impartial consideration of his case, which the Constitution of the United States, in the 14th Amendment herein before referred to, entitled him to. of the grounds above stated: The verdict On Saturday, August 23, 1913, previous to the rendition of the verdict on August 25th, the entire public press of Atlanta appealed to the trial court to adjourn court from Saturday to Monday, owing to the great public excitement, and the court adjourned from Saturday, 12 o'clock M. to Monday morning, because it felt it unwise to continue the case that day, owing to the great public excitement, and on Monday morning the public excitement had not sub and effectively constitutes a waiver. (5) Because the motion, in conjunction with the decision of the supreme court of Georgia in the case of Leo M. Frank v. State of Georgia, affirmatively shows that Frank, after a knowledge of this waiver on the part of his counsel, acquiesced in the same and took steps affirmatively indicating a waiver of such conduct on the part of his counsel. (6) Because the motion affirmatively shows that the jury returning the verdict were polled, and the presence of the defendant is necessary for himself mainly in order to exercise this right to poll the jury. (7) Because the motion and the decision of the supreme court of Georgia in the case above named affirmatively discloses that the verdict of guilty was received in open court and a poll of the jury demanded on behalf of the defendant, and that the poll of the jury was in conformity with every requirement of law. sided, and was as intense as it was on | binding on the defendant, Leo M. Frank, Saturday previous. When it was announced that the jury had reached a verdict, the trial judge went to the court room and found it crowded with spectators, and, fearing violence in the court room, the trial judge cleared it of spectators, and the jury was brought in for the purpose of delivering their verdict. When the verdict of guilty was announced, a signal to that effect was given to the crowd on the outside. The large crowd of people standing on the outside cheered and shouted as the jury was beginning to be polled, and before more than one juror had been polled the noise was so loud and the confusion so great that the further polling of the jury had to be stopped, so as to restore order, and so great was the noise and confusion and cheering and confusion from without that it was difficult for the court to hear the responses of the jurors as they were being polled, though the court was only 10 feet distant from the jury. All of this occurred during the involuntary absence of the defendant, he being at the time confined in jail as above set forth. The state of Georgia, responding to the motion to set aside the verdict, said by way of demurrer that the motion should be dismissed for the following reasons: (1) Because a motion to set aside a verdict or judgment of the court should be, under the law, predicated upon some defect appearing on the face of the pleadings or record, and the motion filed is not one predicated upon any defect appearing of the face of the pleadings or the record. (2) Because it affirmatively appears from the motion that the defendant, Leo M. Frank, made a motion for a new trial, which was denied by the court, and as a matter of law, if the verdict was rendered at a time when the defendant was not present in court, such irregularity should have been included among the grounds of the motion for a new trial; and as a matter of law is conclusively presumed to have been incorporated and embodied in the motion for new trial, which motion was heard and denied, as shown by the petition. (3) Because the motion shows a course of conduct on the part of the defendant which amounts to an estoppel, and that the motion and the record of the decision of the case of Leo M. Frank v. State, rendered by the supreme court of Georgia, affirmatively shows a course of conduct that amounts to and constitutes an estoppel. (4) Because the motion affirmatively discloses that counsel for the defendant agreed with the court that the defendant should not be present at the rendition of the verdict; that this agreement on the part of counsel was and is Mr. Henry A. Alexander, with Messrs. Tye, Peeples, & Jordan, Herbert J. Haas, and Leonard Haas, for plaintiff in error: In trials for capital felonies, the accused has an absolute right to be present in person at each and every stage. Such presence is essential to the validity of a verdict of guilty, and both he and his counsel are incapable, on grounds of public policy, of waiving the presence of the accused at any stage of the trial. Wells v. Terrell, 121 Ga. 368, 49 S. E. 319; Bagwell v. State, 129 Ga. 170, 58 S. E. 650; Tiller v. State, 96 Ga. 430, 23 S. E. 825; Wade v. State, 12 Ga. 25; Hopson v. State, 116 Ga. 90, 42 S. E. 412; Martin v. State, 51 Ga. 567, 1 Am. Crim. Rep. 536; Bonner v. State, 67 Ga. 510; Wilson v. State, 87 Ga. 583, 13 S. E. 566; Nolan v. State, 53 Ga. 137; Barton v. State, 67 Ga. 653, 44 Am. Rep. 743; Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417; Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 701; Schwab v. Berggren, 143 U. S. 442, 36 L. ed. 218, 12 Sup. Ct. Rep. 525; Lewis v. United States, 146 U. S. 370, 36 L. ed. 1011, 13 Sup. Ct. Rep. 136; State v. Hughes, 2 Ala. 102, 36 Am. Dec. 411; Eliza v. State, 39 Ala. 693; Waller v. State, 40 Ala. 332; Sloeovitch v. State, 46 Ala. 227; Cook v. State, 60 Ala. 39, 31 Am. Rep. 31, 3 Am. Crim. Rep. 304; Wells v. State, 147 Ala. 140, 41 So. 630; Harris v. State, 153 Ala. 19, 49 So. 458; Sneed v. State, 5 Ark. 431, 41 Am. Dec. 102; Cole v. State, 10 Ark. 318; Sweeden v. State, 19 Ark. 205; Warren v. State, 19 Ark. 214, 68 Am. Dec. 214; Brown v. State, 24 Ark. 620; Osborn N. W. 453, 13 Ann. Cas. 1211; State v. Gorman, 113 Minn. 401, 32 L.R.A. (N.S.) 306, 129 N. W. 589; State v. Waymire, 52 Or. 281, 21 L.R.A. (N.S.) 56, 132 Am. St. Rep. 699, 97 Pac. 46; State v. Way, 76 Kan. 928, 14 L.R.A. (N.S.) 603, 93 Pac. 159; Gore v. State, 52 Ark. 285, 5 L.R.A. 832, 12 S. W. 564; Humphrey v. State, 3 Okla. Crim. Rep. 504, 139 Am. St. Rep. 972, 106 Pac. 978; 22 Enc. Pl. & Pr. 927. v. State, 24 Ark. 629; Gore v. State, 52 | State, 56 Tex. Crim. Rep. 396, 133 Am. St. Ark. 285, 5 L.R.A. 832, 12 S. W. 564; Peo- Rep. 986, 120 S. W. 485; Sperry v. Com. ple v. Kohler, 5 Cal. 72; People v. Ebner, 9 Leigh, 623, 33 Am. Dec. 261; Hooker v. 23 Cal. 159; People v. Beauchamp, 49 Cal. Com. 13 Gratt. 763; Jackson v. Com. 19 41; People v. Higgins, 59 Cal. 357; Green Gratt. 656; State v. Greer, 22 W. Va. 800; v. People, 3 Colo. 68; Smith v. People, 8 State v. Stevenson, 64 W. Va. 392, 19 L.R.A. Colo. 457, 8 Pac. 920, 5 Am. Crim. Rep. (N.S.) 713, 62 S. E. 688; State v. Sutter, 615; State v. Hurl t, 1 Root, 90; Holton v. 71 W. Va. 371, 43 L.R.A. (N.S.) 399, 76 State, 2 Fla. 500; Gladden v. State, 12 S. E. 811; French v. State, 85 Wis. 400, Fla. 562; Summeralls v. State, 37 Fla. 162, 21 L.R.A. 402, 39 Am. St. Rep. 855, 55 53 Am. St. Rep. 247, 2) So. 242; Holliday N. W. 566, 9 Am. Crim. Rep. 348; Co. v. People, 9 Ill. 111; Harris v. People, 130 Litt. 227b; 2 Hale, P. C. 300; Rex v. LadIll. 457, 22 N. E. 826; State v. Hutchinson, singham, T. Raym. 193; 4 Bl. Com. 360; 95 Iowa, 566, 64 N. W. 610; State v. Myrick, 1 Chitty, Crim. Law, 636; Bacon, Abr. 38 Kan. 238, 16 Pac. 330; Temple v. Com. title "Verdict" p. 308; 2 Barbour, Crim. 14 Bush, 769, 29 Am. Rep. 442; State v. Law, 365; Archbold, Crim. Pl. & Ev. 23d Ford, 30 La. Ann. 311; State v. Bradley, ed. p. 186; Abbott, Trial Brief, Criminal 30 La. Ann. 326; State v. Christian, 30 Causes, 2d ed. 718; Hughes, Crim. Law, La. Ann. 367; State v. Thomas, 128 La. § 3370; Clark, Criminal Proc. p. 423; 813, 55 So. 415; Com. v. Tobin, 125 Mass. Wharton, Crim. Pl. & Pr. 8th ed. § 741; 203, 28 Am. Rep. 220; State v. Reckards, 211 Bishop, New Crim. Proc. § 271(2); Diaz Minn. 47; Scaggs v. State, 8 Smedes & M. v. United States, 223 U. S. 442, 56 L. ed. 722; Price v. State, 36 Miss. 531, 72 Am. 500, 32 Sup. Ct. Rep. 250, Ann. Cas. 1913C, Dec. 195; Stubbs v. State, 49 Miss. 716, 11138; Stoddard v. State, 132 Wis. 520, 112 Am. Crim. Rep. 608; Finch v. State, 53 Miss. 363; Sherrod v. State, 93 Miss. 774, 20 L.R.A. (N.S.) 509, 47 So. 554; Warfield v. State, 96 Miss. 170, 50 So. 561; McLendon v. State, 96 Miss. 250, 50 So. 864; Stanley v. State, 97 Miss. 860, 53 So. 497; Corbin v. State, 99 Miss. 486, 55 So. 43; State v. Buckner, 25 Mo. 172; State v. Cross, 27 Mo. 332; State v. Braunschweig, 36 Mo. 397; State v. Davis, 66 Mo. 684, 27 Am. Rep. 387; State v. Smith, 90 Mo. 37, 59 Am. Rep. 4; 1 S. W. 753; Burley v. State, 1 Neb. 385; State v. Peacock, 50 N. J. L. 34, 11 Atl. 2/0; People v. Perkins, 1 Wend. 91; Maurer v. People, 43 N. Y. 1; Cawthon v. State, 119 Ga. 395, 46 S. E. State v. Blackwelder, 61 N. C. (Phill. L.) 897; Nolan v. State, 53 Ga. 137, 55 Ga. 38; State v. Bray, 67 N. C. 283; State v. 521, 21 Am. Rep. 281, 1 Am. Crim. Rep. Jenkins, 84 N. C. 812, 37 Am. Rep. 643; 532; Smith v. State, 59 Ga. 514, 27 Am. State v. Pay'or, 89 N. C. 539; State v. Rep. 393; Martin v. State, 51 Ga. 567, 1 Kelly, 97 N. C. 404, 2 Am, St. Rep. 299, Am. Crim. Rep. 536; Wilson v. State, 87 2 S. E. 185; State v. Cherry, 154 N. C. Ga. 583, 13 S. E. 566; Wade v. State, 12 624, 70 S. E. 295; Wilson v. State, 2 Ohio Ga. 25; Tiller v. State, 96 Ga. 430, 23 S. E. St. 319; Sargent v. State, 11 Ohio, 472; 825; Miller v. State, 13 Ga. App. 440, 79 Rose v. State, 20 Ohio, 31; Day v. Terri- S. E. 232; Richards v. State, 136 Ga. 67, tory, 2 Okla. 409, 37 Pac. 806; Le Roy v. 70 S. E. 868; Bagwell v. State, 129 Ga. 170, Territory, 3 Okla. 596, 41 Pac. 612; Humph- 58 S. E. 650; Baldwin v. State, 138 Ga. rey v. State, 3 Okla. Crim. Rep. 504, 139 349, 75 S. E. 324; Barton v. State, 67 Ga. Am. St. Rep. 972, 106 Pac. 978; Dunn v. 653, 44 Am. Rep. 743; Bonner v. State, 67 Com. 6 Pa. 384; Prine v. Com. 18 Pa. 103; Ga. 510; Ezzard v. State, 11 Ga. App. 30, Dougherty v. Com. 69 Pa. 286; State v. 74 S. E. 551; Mitchum v. State, 11 Ga. 630; Atkinson, 40 S. C. 363, 42 Am. St. Rep. Durham v. State, 70 Ga. 264; Hoye v. 877, 18 S. E. 1021; State v. France, 1 Overt. 434; Andrews v. State, 2 Sneed, 550; Clark State, 39 Ga. 719; Lyons v. State, 7 Ga. v. State, 4 Humph. 254; Hutchinson v. App. 50, 66 S. E. 149; Wiggins v. Tyson, State, 3 Coldw. 95; Stewart v. State, 7112 Ga. 750, 38 S. E. 86; Fannin v. Durdin, Coldw. 338; Percer v. State, 118 Tenn. 765, 103 S. W. 780; Shipp v. State, 11 Tex. App. 46; Massey v. State, 31 Tex. Crim. Rep. 371, 20 S. W. 758; Hill v. State, 54 Tex. Crim. Rep. 646, 114 S. W. 117; Derden v. Messrs. E. A. Stephens and Hugh M. Dorsey, for the State: The doctrine of waiver and ratification is recognized and applied in criminal cases. 54 Ga. 476; Schumpert v. State, 9 Ga. App. 553, 71 S. E. 879; Hill v. State, 118 Ga. 24, 44 S. E. 820; Daniels v. Towers, 79 Ga. 785, 7 S. E. 120; Dean v. State, 43 Ga. 218; 22 Enc. Pl. & Pr. p. 929; Rhodes v. |