(dissenting).
It seems to me that the order appealed from was proper because the allegations of the petition for the writ of habeas corpus do not show that the appellant, before filing that petition, availed himself of process supplied by the law of Georgia for annulling a judgment of conviction brought about by conditions of mob violence prevailing throughout the trial, or that he bad any sufficient excuse for failing first to apply to a state court for relief. The opinion in the case of Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543, shows that the court expressly assumed that the corrective process supplied by the state with reference to a judgment of conviction based upon a verdict produced by mob domination may be so adequate that interference by habeas corpus ought not to be allowed. It is not to be doubted that the state of Georgia supplied adequate corrective process for annulling a judgment based on a verdict brought about by mob pressure. “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.” Frank v. Mangum, 237 U. S. 309, 335, 35 S. Ct. 582, 590, 59 L. Ed. 969. The law of Georgia permits in extraordinary cases a motion for new trial to bo made after tbe expiration of the term at which the judgment was rendered, and authorizes judges of superior courts to hold special terms for the trial of criminals in any county of their circuits, at discretion. Michio’s Georgia Codo 1926, §§ 6089', 6090; Ga. Penal Code, § 796. In the case of Jackson v. Clark, 52 Ga. 53, the Supreme Court of Georgia decided that the action of the counsel appointed by the court to defend one charged with homicide as principal in the second degree in withdrawing, without the knowledge or consent of the defendant, and before the court had expressed any opinion of its merits, a motion for a new trial based upon the admission over his objection of evidence of tbe conviction of another person charged in the same indictment with the same homicide as principal in the first degree presented such an extraordinary case as entitled the defendant, by a motion for a new trial made after the adjournment of the term, to have the court pass on the question which had boon raised by the motion which was so abandoned. The decision that such an abandonment of a motion for a new trial based on the admission of asserted illegal evidence authorizes the making of the extraordinary motion for a new trial provided by the Georgia statute amply supports the conclusion that the failure of the counsel appointed by the court to defend tbe accused in the trial on a criminal charge to make any motion for a now trial when obviously the verdict of guilt was produced by mob violence, tbe trial being a mere sham, entitles the accused, by a motion for a new trial made after the expiration of the term, to invoke the decision of the court on the question whether a new trial should be granted for disorder or mob violence interfering with the prisoner’s right to a fair trial. So' far as the writer is advised, the ruling in the case of Jackson v. Clark, supra, supporting the just stated conclusion has not been questioned in any later Georgia decision. What was said in the opinion in the case of Fambles v. State, 97 Ga. 625, 25 S. E. 365, plainly indicates that the court deciding that ease would give the failure of counsel appointed by tbe court to defend one charged with crime to' make a motion for a new trial, where obviously such an application ought to have been made by reason of circumstances attending the trial making it a mere nullity, the effect of making the ease an extraordinary one within the meaning of an above cited statute. In the case of Bloodworth v. State, 160 Ga. 197, 127 S. E. 458, it was decided that under the last above cited statute the judge was authorized to call a special term of court for the purpose of resentencing a prisoner. It seems that a motion for a new trial in a criminal case is as much a part or an incident of the trial as a resentencing of the prisoner.
Nothing in the petition for the writ of habeas corpus indicates that the counsel who was appointed by the court to represent the appellant construed his appointment as covering only the actual trial, and as not including the making of motions for continuance, chango of venue, and a now trial. Georgia eases above cited show that counsel so appointed to defend one accused of crime is under a duty to make a motion for a new *592trial when sueh a motion is called for by the existence of grounds of grave and serious importance. The allegations of the petition do not show that the counsel so. appointed was influenced by'any threat of mob violence to himself personally or that the threat of mob violence which had prevailed throughout the trial 'continued after the trial was ended and the accused had been carried back to Atlanta, entirely out of reach of the mob. So far as appears the failure of counsel to make a motion for new trial between the time the trial ended, and the adjournment of the court the next day did not result from anything except the uncoereed election of the counsel not to make such a motion. It appears that after the adjournment of the court the appellant had counsel other than the one appointed by the court. — the attorneys who in his behalf filed his petition for the writ of habeas corpus, and appear for him in this court. Nothing contained in the petition is inconsistent with the conclusion that the counsel now representing the appellant were engaged or employed in ample time prior to the date set for execution to apply to the judge of the court for the calling of a special term, during which an extraordinary motion for a new trial could be made and acted on. Certainly it is not to be presumed that a judge so applied to would so exercise his discretion as to prevent the presentation and hearing of a motion for a new trial on a ground which to his knowledge should have been made the basis of a motion for a new trial during the term at which the judgment of conviction was rendered. It was within his power to call a special term of court at which he could suspend the sentence imposed, or postpone the execution of it pending action on a motion for a new trial made after the adjournment of the term of court at which the judgment of conviction was rendered, and to vacate that judgment by granting sueh motion. From the failure of the allegations of appellant’s petition to show that, before he filed that petition, he invoked the exercise of sueh pqwer possessed by the state court, or that there was any sufficient excuse for such, failure to do so, it. is to be inferred that the filing of that petition was unwarranted because the relief it sought might have been obtained in a state court if it had been duly applied for. A remedy which could be granted is .not denied to one who fails to apply for it¡
It appears from the opinion in the case of Moore v. Dempsey, supra, that the allegations of the petition for the writ of habeas corpus show that by reason of conditions of mob violence prevailing throughout the trial the verdict and judgment of conviction were absolute nullities, that the state courts, though duly appealed to for the correction of the wrong, failed to correct it, and that the reviewing tribunal, by way of answer to the objection that no fair trial could be had in the circumstances, stated that it could not say “that this must necessarily have been the ease”; that eminent counsel was appointed to defend the petitioner, that the trial was had according to law, the jury correctly charged, and the testimony legally sufficient. Following recitals to the just stated effect the court stated its conclusion by saying: “We shall not say more concerning the corrective process afforded to the petitioners than that it does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the faets for himself when if true as alleged they make the trial absolutely void. We have confined the statement to faets admitted by the demurrer. We will not say that they cannot be met, but it appears to us unavoidable that the District Judge should find whether the facts alleged are true and whether they can be explained so far as to leave the state proceedings undisturbed.” The result of the court’s action in that ease was to make it the duty of a judge of the United States to examine the faets for himself when the allegations of the petition for the writ of habeas corpus show that petitioner’s conviction of a capital crime was a nullity by reason of mob violence interfering with his right to a fair trial, and that the corrective process supplied by the state, as that process was construed and applied by the courts of the state duly appealed to by the petitioner for the correction of the wrong, were inadequate for the accomplishment of that result, though the alleged state of facts having the effect of nullifying the verdict and judgment of conviction were duly disclosed to those courts — in other words, to examine the faets for himself for the purpose of determining whether the corrective process supplied by the state, as that process was administered in that case, was or was not as inadequate as it appeared to be from the allegations of the petition for the writ of habeas corpus. A material difference between that case and the instant one is that in the former it appeared from the allegations of the petition that the petitioner unavailingly had applied to the courts of the state for the annullment of a conviction • of a capital offense, which was duly disclosed to those *593courts to have been the result of the petitioner being deprived of the benefit of due process of law, while in the latter, the annullment of such a conviction by a judge of a court of the United States was applied for without the applicant first having sought such annullment in a state court which was vested with power to administer corrective process, which, as construed and administered by the courts of that state, is fully adequate. Resort to a judge or court of the United States to protect one from being deprived by the action of a state court of life or liberty without due process of law is not warranted if such relief is not first sought in a court of the state which supplies adequate process for the correction of such a wrong.
Powers possessed by Georgia judges and courts would have been exercised if, after the final adjournment of the term of court at which appellant was convicted, no motion for a new trial having been made at that term, the judge of that court had called a special term and during that term had acted on an extraordinary motion for a new trial, and if, on an appeal to the Supreme Court following a denial of that motion, that court had set aside the conviction. Without first invoking an exercise of those powers or showing a sufficient excuse for failing to do so, appellant was not entitled to apply to a federal judge or court for relief which was grantahle by a state court. To recognize a right of the appellant to get relief in a federal court in such circumstances as are disclosed by his petition amounts to approving unnecessary meddling by federal judges or courts with the administration of criminal laws of a state by the courts of the state, which are vested with power to correct the wrong alleged, and well might be expected to have the effect of encouraging attempts to substitute federal habeas corpus proceedings for established corrective procedure available in state courts for vacating wrongful convictions of crime. The allegations of appellant’s petition are consistent with this case being an instance of one appealing to a judge or court of the United Stales for protection from action of a state court claimed to have the effect of depriving him of life or liberty without due process of law when adequate protection of his right to have the benefit of due process of law may ho obtained by resort to courts of the state.
PER CURIAM.As neither of the judges who concurred in the judgment of the court in the above numbered and entitled cause is of opinion that the petition for rehearing should be granted, it is ordered that the said petition be, and the same hereby is, denied.