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2 A TTEARST’S SUNDAY AMERICAN, ATLANTA 0A„ SUNDAY. AUGUST 10. 1913. *
FRANK’S CHARACTER IS NEW BATTLE GROUND
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DEFENSE HAS TS CLEAR
[ OF TWO CHARGES
Continued From Page 1.
went to sleep in the afternoon and neglected to perform this service.
THAT Frank, called to the factory early in the morning of
Sunday, April 27, displaying great nervousness, and while on his
v.ay to the factory without having been informed of the dead,
girl’s identity, declined, or at least failed and neglected, to look'
upon her features at the undertaker's, notwithstanding the fact
that he later admitted her identity without having seen her dead.
THAT at the factory, at the place of the crime, his nervousness
continued, and that next morning (Monday), when called to the po
lice station for further questioning, he had secured counsel to de
fend him, notwithstanding the fact that he then had not been placed
under arrest.
THAT after having been placed under arrest and indicted for
murder, he persistently refused to meet his chief accuser, Jim Con
ley, face to face, or to discuss any features of the charges lodged
against him.
THAT in addition to the crime of murder, as set forth in the
indictment, Frank is a dissolute character, practicing the most de
praved and perverted crimes with persons of loose morals, and that
Jim Conley, on more than one occasion, acted as “lookout” for
Frank on the first floor of the factory, while unspeakable and un
mentionable t,hings were being enacted above.
The State, in setting up the foregoing allegations, summoned
as its principal and all-important witness, Jim Conloy, who already
made public affidavits to all of the charges set forth, except the
one of perversion and the exact time of the crime charged.
Conley, afterfour or five changed statements theretofore made,
set up in his final statement, on the stand many other seemingly
minor dtails not contained in any previous statement.
The foregoing is the State’s case in completed form, except
that it yel will have the right to produce witnesses in rebuttal of
the defense’s witnesses; the defense* in its turn, having the right to
a further rebuttal of the State’s rebuttal.
The defense has contended, or will contend:
THAT Conley’s story is a tissue of frightful lies from start to
finish, and that he himself really committed the crime charged
against Frank, and that the defense will so demonstrate.
THAT Mary Phagan was not killed as early as 12:05 on the
afternoon of April 26, but was, as a matter of fact, killed at least
fifteen minutes later than that, if, as a matter of still further fact
she wa snot disabled hopelessly about that time, and actually killed
even later.
THAT if she was not kJled previous to 12:05, as set forth, by
the State, that contention being uncompromisingly claimed by the
State's own witnesses—Jim Conley and IVfbnteen Stover—then Con
ley’s story is impossible and absurd, and Monteen Stover's evidence
entirely negligible.
THAT Frank did not lure Mary Phagan to the rear of the sec
ond floor, or to any other place, for any purpose whatever, and that
she was only on the second floor sufficiently long to get her pay from
the hands of Frank, and that she immediately thereafter left the sec
ond floor, going down to the first floor to meet her death at the hands
of Conley.
THAT Frank never asked for or received the assistance of Jim
Conley in disposing of the body of Mary Phagan, because he was
in utter and entire ignorance of the murder until apprised of it
Sunday morning.
THAT Frank had nothing whatever to do with the framing
of the nates found beside the dead girl, and tnat in support of
such a charge the State has only the word of Jim Conley, intensely
interested in shifting the blame from his own guilty shoulders and
on t<|ithe shoulders of Frank. .
THAT Frank never paid Jim Conley any sum of money for
any purpose whatever on Saturday, nor promised him any sum
for any purpose whatever, and that Conley’s word alone says
that he did.
THAT whatever nervousness Frank displayed, if he displayed
I aiy unusual or unnatural nervousness at all, was occasioned by the
j mysterious attitude of the officers notifying him of some unnamed
| trouble at the pencil factory, and that in support of his approxi-
! mately normal frame of mind is the fact, proved by the State’s
| own witnesses; that he opened the office safe to look up the record
; of Mary Phagan, after having acquired knowledge of her identity,
without tremor or hesitation whatever, setting the intricate com
bination and easily opening the safe on the first trial.
THAT his iftnocence of all guilty knowledge of the crime is
further evidenced by his three hours’ perfectly normal work on
his books in the factory on the afternoon of April 26, at which
time, it the State’s theory holds, Mary v Phagan, with Frank’s
knowledge, then was a corpse in the basement, dead at his mur
derous hands.
THAT Frank, instead of declining to look upon the face of the
dead girl at the undertaker’s while on his way to the factory
Monday morning, did, as a matter of fact, look upon her face and
recognized her.
THAT Frank bad no counsel until after his retention at police
headquarters had been publicly made known, and when he was
notoriously under suspicion, and that even then counsel was sent’
to him by some outside friends, and did not come at his invitatior?
paid off by Frank upstairs, hit her a violent blow upon her head,
snatched her purse from her hand, and at once threw her body
into the cellar by way of a nearby open space, for fear of someone
coming into the building; that likely the blow first delivered was
not sufficient to kill, and that her actua 1 death was hastened, or
may have been hastened later in the cellar below, by means of
strangulation, there being always there an abundance of the very
cord employed or supposed to have been employed in that act.
or by his direction. .
THAT Frank’s refusal to meet Jim Conley, his lying accuser,
was natural and proper in the circumstances, and that such a
course was persisted in by the particular advice of his counsel; that
Frank was under no moral or legal obligation to discuss his case
with Conley, or with any other witness for the State.
THAT Frank, far from being a dissolute character, is a man
of unblemished integrity, happily married; that he never has prac
ticed depraved and perverted crimes, because such things would be
and are entirely foreign to his nature; that he never has associate!
with immoral persons anywhere, at any time; that neither Jim
Conley nor any other person ever acted as “lookout” for him for
any purpose whatsoever—and that every monstrous and untrue
charge or suggestion of immorality and degeneracy rests absolute
ly and finally upon the unsupported word of Conley, and not other
wise.
THAT there has been no tenable motive assigned to Frank for
the murder of Mary Phagan; that the girl was not sexually vio
lated or in any manner lacerated; that Frank had only the most
casual acquaintance with her, and that of a perfectly natural busi
ness sort, and that he could not have had, and did not have, any
reason whatever for desiring her death.
THAT, in truth and reality, the motive prompting the murder
of Mary Phagan was robbery upon the part of Conley, and that
for the purpose of securing her pittance of money, contained in a
mesh purse, he did murder her and concealed her body in the base
ment.
THAT, as a matter of fact, Mary Phagan reached the National
Pencil Factory on the afternoon of April 26 about 12:12 or 12:15;
tedly was “mistaken” in some statements made against Frank; agreed that he is handling the case
that he did not begin to thrqw suspicion on Frank until after sus- ult 1 Speculation as toOutcome™'"
picion began drifting in his (Conley’s) direction; that his plea of speculation as to the outcome of
wishing by his first silent course of conduct to “protect” Frank ^nothlns^hea'd“button!
viction, just as there are others who
can see nothing but acquittal.
If a ballot could be taken, how
ever, those holding - to the idea of a
mistrial likely would be found in tho
majority, for that is the way the
fght seems, to many observing minds,
to be drifting.
That section of the public generally
credited with being calm, poised, and
desirous of seeing the right prevail,
no matter which way it cuts, appar
ently has suspended judgment. Ex
tremists pro and con still are talking
themselves hoarse about town, how
ever.
The progressing inclination among
the people seems to be to let the jury
settle it, and then to call that as near
right as abstract justice and human
ingenuity can make it.
In the event of an acquittal, the
is not sound, because after the feigned disappointment that Frank
did not “get him out of his trouble, as he had promised,” and de
claring that he, therefore, intended to tell the “whole truth of the
murder,” he still persisted in his lies and falsifying to the at-l
tempted damage of Frank, and found it necessary to issue three
conflicting affidavits before he got one he thought might be de
pended upon to stand up.
THAT Conley began his statements with a lie—to the effect
that he could not write—and continued lying steadily thereafter,
but frequently canceling one lie in favor of another, as his first
lies were shown to be useless and senseless.
THAT Conley in revising his various statements was aided
and abetted by various police officials, presumably anxious for the
reward offered for the apprehension and conviction of Mary Pha
gan’s murderer, and that these officers pointed out to Conley the
discrepancies as they arose from time to time, and that without
this aid Conley’s story never could have been made to hold to- ^ ase ends - The state has no appeal,
gether even as well as it did; that notwithstanding this prejudic- i',s« U for"an tim e he ” rst r ° und ' ° r U
ing aid, however, Conley’s story still is impossible and absurd, and
of no account whatever against Frank.
The foregoing, in general, is the theory of the defense, as
already set up and as yet to be developed, and along that line it
will fight its battle to the end.
The defense is heavily equipped with witnesses to sustain its
every contention, and these will be offered, in their ordr, to brak
down the contrary theory of the State, as hereinbefore outlined,
and upon th relative strength of the two showings depends, of
course, the verdict.
Of absorbing interest now is the seeming determination of
the defense to put Leo Frank’s character frankly and fearlessly
in evidenec.
In a former article in The Sunday American several weeks ago I pre
dicted that the defense would do this—and the then apparent determination
of the defense along that line shows no symptoms of having been deviated
fro min the slightest.
When Conley made his additional unanticipated attack on Frank’s char
acter from the witness stand, it was rather freely predicted about the streets
that Frank never would, after that, agree to have his character put in evi
dence. Under the law, the State can not put the defendant’s character in
evidence—if it is put in at alljt must be put in by the defendant voluntarily.
Once in, however, it may be riddled by the State, if the State is able to
riddle it.
The determination, therefore, of the defense to put Frank’s character
in evidence is being accepted generally as indicating an unfaltering confidence
upon the part of the defense that Frank may be able thereby to overcome
the terrible and prejudicial charge of degeneracy, as well as the charge of
murder, both resting so largely upon Conley, and Conley alone; and it also
indicates a belief upon the part of the defense that the State already has
done its worst in the matter of attacking Frank’s character.
MUST REFUTE TWO CHARGES.
The fact that Frank is now engaged in refuting two charges instead of
one makes his case double unique in Georgia, as it is contrary to the un
broken theory of the law heretofore.
In Georgia, the courts uniformly have held that a man can not be tried
for more than one offense at one time—that is, that he can not be charged
with murder, and in the same trial be called to account for another felonious
crime.
The charge of degeneracy, however, got into the case without objection,
and Frank’s lawyers cross-examined the witness making it. The judge, there
fore, although a motion was made afterward to strike out this evidence,
ruled taht it was too lute to expunge it, and that it should go in for what
it was worth.
This ruling, while In a way more or l?ss unprecedented_ was, in the
main, by the public seemingly approved, upon the idea that it was fairer to
both the State and the defense jhat the horrible charge, having been made,
clemency. ,
If he is convicted, and the JurjJ
"recommend him to the mercy of tho
court," the court then will be obliged
to send him to orison for life.
The general opinion is that tha
present trial will run all of this week
—that the best to be expected is thi{
the jury may be given the case by
Saturday night.
After the evidence is all in. the case
still will have to be argued to the
Jury. It Is thought that Judge Roan
will take the bridle off In respect of
this, and both sides will be permitted
to go the limit.
Mr. Rosser and Mr. Arnold will con
sume at least one entire day in argu
ment, and Mr. Dorsey and Mr. Hooper
will not take less time.
It is expected that Hooper will open
for the State and Dorsey close, and
that Rosser will open foij the defense
and Arnold close. The State has tho
opening and the concluding argument
before the jury.
The defense ,on the other hand, If
it loses, may move for a new trial,
upon proper assignment of error in
the first trial. The Judge of original
jurisdiction passes upon this motion—
he may grant it or not, as his dis
cretion directs.
The general policy of judges is to
refuse motions for new trials, but It is
not an unbroken policy, by any means.
If the new trial motion is denied,
the case goes to a court of review—
either the Supreme Court or the Court
of Appeals. If one error or several
be found in the original rulings ol
the court below, the case will be re
manded back for a new trial, the
judgment thus having been reversed
and set aside.
Then the case begins all over again,
practically as if it never had been
tried.
In the event of maters taking that
course, Frank hardly could be tried
again before next year, 1914, and per
haps not before spring.
Conley Indictment Likely,
If Frank is acquitted, there is hard
ly a doubt that Jim Conley will be
promptly indicted for the murder of
Mary Phagan. and brought to trial
lat r.
In the event of Frank’s final con
viction, Conley will be Indicted as
an accessory after the fact. This
would mean a sentence of not more
that} three years in the State peniten
tiary for him.
If Frank is convicted, he can be
convicted only of murder—the jury
will not be permitted, under the form
of the indictment, to find him guilty
of a lesser crime.
The judge will have no discretion
in sentencing him.
If found guilty, without a recom
mendation to mercy, he must hang,
unless the Governor should subse
quently interfere and order executir
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Week Aug. 11th fifg
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Rlngllng’s New York Feature
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WEEK MIKE BERNARD
that she came up the steps directly to Frank's office, and received 1thrashed out.
her pay for the time due her, in amount $1.20; that she at once de- Should Frank be convicted, it is practically certain that a new trial will
parted Frank's office, without CommeV of any sort, and that Frank asked on this very point, and it Is not at all improbable that Judge Roan
never saw her alive thereafter; that going down the steps, with her
silver mesh bag in her hand, she had to pass Jim Conley, recently
aroused from a drunken doze; that in attempting to get from the
foot of the stairs, where Conley was sitting, to the door, some 20
feet away, she had to traverse a gloomy walkway, more than 'Or
dinarily gloomy at the time because the day was a legal holiday
and the doors were closed, but not locked; that in traversing this
walkway her back was toward Conley; that Conley, without money
and craving moore liquor, saw the unprotected little girl with the
enticing silver bag in her hand, and surmising that she had been
THAT after accomplishing his bloody deed Conley escaped by
withdrawing the inside staple from the basement back door only
a few feet away from the place where the dead girl subsequently
was found; and that tracings of Conley during the afternoon of
April 26 at various saloons about town show that he spent then an
amount of money approximately that which Mary Phagan is sup
posed to have had in her purse at the time of har murder.
That of all her possessions the purse alone, notwithstanding
exhaustive inquiry, never was accounted for until the last day
Conley was on the stand, when he stated that Frank had had the
purse iu his possession just after the murder, and that he had con
cealed it in his safe. This allegation, the defense points out. is
sustained, as are the other most damaging allegations, by Conley’s
unsupported word entirely.
THAT Conley, the State's main witness, is a notoriously dis
solute character, by his own admission seven times a jailbird, many
times a liar, even under oath and on the witness s!and, and admit-
will grant it, although this conjecture is purely and absolutely speculative,
of course.
The defense has summoned some seventy character witnesses, among
whom are more than two score, femal employes of the National Pencil Fac
tory, all of whom will swear, it is said, to the defendant’s decent and gen
tlemanly conduct at all times in their presence and during their varied terms
of service in the factory, running from one to five years.
INTENSE INTEREST HOLDS.
Resides these, a score or more of Atlanta’s most prominent business and
professional men have been cited to come to court and testify in behalf of
Frank’s good name.
Rarely before. If ever, has there been as intense interest in a murder
trial as there unquestionably is in the Frank case.
The crowds attending the trial have been enormous, the officers finding
it necessary every day to turn away hundreds of anxious would-be spectators.
Public sentiment has swung back and forth—to-day inclined to believe
Frank may be innocent, to-morrow sternly the reverse.
The jury, sitting the/e in the courthouse, day after day, has been the
subjective study of hundreds of real and near analytical minds—and the
answer?
Every fellow answers for himself. The jury is imperturable. unreadable,
almost seemingly indifferent at times, indeed—but always keenly keyed to
intense interest, nevertheless!
One might as well undertake to rend the riddle of the Spinx as to read
the riddle of the Frank ease in the minds of the jury trying It. It looks as
il it is a Jury well above the average—anil that is about the beginning and
the end of an intelligent guess as to what it will do.
Judge Roan is as hauling as the rest of the ease. too. when it comes
to speculating upon what he may or may not think of it all.
He is rated one of the very best Superior Court judges in the State, un
usually able, certainly fearless, and agreed to be utterly fair and impartial.
At times, his rulings have seemed to favor the defense, and at .other
times they have seemed to favor the State; but, withal, the public seems
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