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PREFACE TO VOLUME TEN ix

the question as to whether the judicial machinery had
been run properly, whether any inadmissible evidence
had been admitted, whether the jury had heard the
cheers given to the prosecuting attorney by the crowd
in the streets and so forth. And when finally the pris-
oner’s lawyers were able to get the case before the
most august tribunal in the world—the Supreme
Court of the United States—that great Court forgot
entirely the vital question of the guilt of the prisoner;
the energy of its nine justices was expended on the
question, should or should not the verdiet of the jury
be set aside because the counsel and judge had agreed
that Frank should not be in court when the jury re-
tarned their verdict, and in accordance with this agree-
ment he was in his cell in the jail at that time and re-
eeived the news of it there instead of in court. And
on this question, while the judges differed, a majority
of them decided that it did not matter.

Here Justice reeeived its second wound. The Su-
preme Court of the state learned that the trial judge
was doubtful as to Frank’s guilt, but it learned it
in the wrong way. The trial judge expressed his
doubt in the bill of exceptions, but failed to de so in
his order, overruling the motion for a new trial.
‘Had he taken the latter mode of informing the Court
of his doubt, the Supreme Court would certainly have
granted a new trial. But since it was not put in that
order under a technical rule of practice which is un-
bending in our Supreme Court, a new trial was de-
nied, not because the doubt of the judge did not exist
(for he certified to that himself in the bill of excep-
tions), but because he did not express that doubt in
hig written order rather than in the bill of excep-
tions.’

249 Am, Law Rev. 947.

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