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THE ATLANTA GEORGIAN AND NEWS. DEFENSE SHIFTS BURDEN By JAMES B. NEVIN. The defense In the Frank case did the expected thing when it boldly and unequivocally put Frank’s char acter in issue. It indicated its confidence in th© Justice ot tfte deefndant’s cause in do ing that, and it met thus a crisis that it hardly could have successfully overcome otherwise, if it so happen that it does overcome It eventually. Having taken the initiative in the matter of thrashing* out Frank’s character, the State will now be forced to make out an unmistakable case of bad character against Frank, or it is likely that the State’s injection of the sinister charge against him. in addi tion to the charge of murder, may op erate as a boomerang to the State’s great hurt finally. 4 It is not to be wondered at that the defendant’s mother, tried and racked in spirit and pride as she surely must have been, should have let her feel ings overcome her for an instant dur ing the course of Wednesday after noon’s hearing. I do not suppose it is even remotely possible for any person not a mother to understand all she has gone through. Her vehement protest against the vile things being said and hinted about her boy—true or untrue, though such things always are untrue ; n mother love, I take It—serves to il lustrate, however, how very vital to the defense now is the establishing of Frank’s good character. I doubt that anything thus far said to the jury has so profoundly im pressed it as the unspeakable thing Conley said of the defendant. The jury is only human, and It can no more dodge impressions than other people can. Impression Must Be Erased. The defense is up against the her culean task of removing all of that impression from the mind of the jury —the twelve minds of the jury, indeed —for it will not do to leave even a fraction of Conley’s story undemol ish «d! Manifestly, therefore, the defense could not, if it would, get away al together from the matter of Frank’s character. It found itself necessarily forced to the other extreme of the situation set up by the State. The State, on the other hand, by reason of the defense's challenging attitude in the matter of forcing the issue of Frank’s ch racter. must now corroborate the frightful story of Con ley, or I think it may suffer before the jury irreparable injury. Curiously enough, the burden of proof in the Frank case emed to have been shilLed a week ago—that t*. whereas the burden is legally im posed upon the State, it being the theory of the law that a defendant goes into court with the presumption of innocence in his favor, i‘ appeared, after Conley had made his awful charge, that the burden then was shifted onto the defense to prove Frank's innocence, rather than that the State should prove his guilt. In putting Frank character In is sue, however. I now think the defense has shifted back the burden, In large measure, anyway, to where the law contemplates it shall rest. The State must complete Its proof of Frank’s depravity, or the State w’i'l not have made out such a case as likely will stand to the last analysis. Defense Plans Its Climax. As the State moved in the begin ning of the Frank trial, steadily and consistently to the negro sweeper, Jim Conley, as the climax of its case, so to-day the defense is moving, every bit as steadily and as persistently, to the defendant, Leo Frank, as the cli max of its case. The State’s case progressed ever up to Conley—the defense’s case is progressing ever up to Frank. It is Conley vs. Frank no less than it is *iic State vs. Frank. No intelligent and discriminating observer, abreast with the status of the trial, doubts that, or has doubted it for days. Either Leo Frank’s life will an swer for Mary Phagan’s, or Jim Con ley's will! The capstone of the defense un doubtedly will be the defendam'3 statement. He will make it just be fore the defense rests its pleading. Already, Uhls anticipated dramatic event has cast its shadow before. The public is looking forward to Frank’s attorneys. He siimply states what he personal statement with no less keen interest than it looked forward, per haps, to the terrible story of Conley. Frank will be permitted, under the law, to make a statement to the jury, but without being permitted to swear to its truthfulness. The jury will be instructed that it may accept that statement, if it so elects, in preference to all the sworn testimony in the case; or it mav accept it in part and re ject it in part; or it may reject it altogether. The Jury alone and finally is made the sole judge of the defendant’s cred ibility on the stand. 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Only at the Coroner’s inquest, where he was obliged to talk, has he opened his lips to speak concerning the charge brought against him. In adopt ing this course, he unquestionably was well within his legal rights, and well within the bounds of common sense, too, no doubt—but the fact remains that the course he pursued is the un usual one. I said in a former article that Frank apparently is a very patient man and such men fight mighty hard when once aroused—and the more I reflect upon that observation, the more I am inclined to emphasize it. He has waited four months to tell his story—but when he does tell it, it will be related in the proper pres ence, th© court and the jury. It is unlikely that the public wishes to hear anything quite *> much as exactly what Frank himself has to say of the charges lodged against him. ’ v * It has heard what everybody else, both intimately and distantly con cerned, has had to say. It has heard Conley’s story from Conley’s own lips —but thus far Frank has been as silent as the grave of the dead girl it seIf! It is impossible to forecast the ef fect of Frank’s statement upon the Jury. It may have as “owerful an effect in clearing him as Conley’.^ hor rible statement surely must have had by wav of then condemning him. juries Have Accepted It. I have seen cases in which the de fendant’s statement alone evidently served to clear him. I have known Juries to accept it as the truth, over and above all the sworn testimony- just as the jury has the unquestioned light to do. On the other hand, I have seen the defendant’s statement fall flat and stale. I have seen it have no more effect upon the jury than rain has upon a duck’s back. It all depends upon the defendant s manner and bearing on the stand, the seeming sincerity of his recital, its plausibility and probability, the char acter of th« man making it, his in telligence and apparent directness of purpose, the necessity of the state ment as bearing alone and entirely upon weak points in either his 6wn or the State’s case, and many other things. The defendant’s statement presum- ! ably dovetails, of course, into the case his lawyers theretofore have made out—and yet I have known the de fense to introduce the defendant the first thing, and proceed thereafter to the building of a case around his statement. As this case is so thoroughly a fight between Conley and Frank—that is, between Conley’s evidence and Frank’s evidence—it will he intensely in teresting to watch and see how even tually the jury views the relative value of both. Much Rests on Defendant. Conley’s story, as amazing and as shocking as it is in parts, neverthe less has been accepted by many as the truth. Presumably, those peo ple who already have made up their minds still are willing to be convinced —as violent as the presumption may be in some cases—if Frank can con vince them. Upon Frank’s statement, therefore, it Is entirely possible the entire case may turn finally. To discredit Frank’s statement, to be sure, will be his heavy self-interest and the fact that it is not upon oath and not subject to cross-examina tion. • To discredit Conley’s story, how ever, la his also heavy self-interest and the fact that, while his story was delivered on oath, his character admittedly’ is very bad and his nu merous previous sworn statements admittedly false in many important details. The situation thus set up Is about as pretty a* it could be, from an ab stract legal standj oint. If it were a surgical problem we were considering, I should predict that the operation will be beautiful and brilliant in any event—but as for the patient—well, 1 really could not say 1 Frank’s Mother Resents Questioning of Dorsey steelworkers STATE’S SOLE 11 IS TO CONIT, DEFENSE'S TO T F L The calling of four character wit nesses Wednesday ‘opened the flood gates for the State to get before the jury all of its accusations against Frank, and was the direct cause of a frantic outburst on the part of Mr*. Rae Frank, mother of the defendant, who rose from her chair and dramat ically denounced Solicitor General Dorsey. It was the first scene created by any of the members of the prisoner’s fam ily. Frank’s wife and mother were perceptibly affected when the Solici tor previously was hurling his charges of gross misconduct against the de fendant, but both had restrained themselves from any marked demon stration. Feeling Reaches Bursting Point. The elder woman persistently had maintained an almost expressionless face while the most abhorrent charges were being made. Save that she looked away from the crowd as if it were a terrible ordeal to listen to the testimony, it would have been impos sible to tell that it was one of her loved ones against whom the charges were being made. Her feelings, however, had reached the bursting point Wednesday. She could stand the attack against her son’s character no longer. From the impassive and quietly suffering wom an she was goaded to the fury of a tigress. From the lips of the Solicitor Gen eral flowed a stream of implied ac cusations. He asked about alleged incidents in Frank’s office at the fac tory, a4>out incidents in the girls’ dressing room which the Solicitor in timated that Frank invaded without apology or excuse. The mother of Frank lifted her eves to the Solicitor. There was in them no longer the look of resignation with which the other charges had beeo met. In its place blazed hate and outraged mother love. She was will ing no longer to await the end of tho trial for her son’s vindication. The Solicitor continued. He gave the names of girls of tender years. He narrated circumstances that brought a crimson flood to the face of the younger Mrs. Frank. "Haven’t you heard of these sto ries’.’” he asked insinuatingly of the witness, Ashley Jones. "No. nor you either!” cried the mother. She was on her feet. The court room was astounded at the sudden ness and dramatic intensity of the outburst. Persons rose here and there among the spectators, oblivious of the calls fur order of the court at taches. Mrs. Frank stood in hysterical in dignation before the Solicitor. She said things to him that were lost in the confusion. She would have con tinued her tirade had she not been restrained by court deputies and members of her own family who rush ed to her side to quiet and comfort her. "My GqcI, my God,” she moaned as she was led sobbing from the court* room. She was taken home in a hys terical condition. She returned to ward the close of the afternoon ses sion, but did not re-enter the court room. If the denunciation affected, the So licitor, he did not show it unless it was by a line of questioning even more severe than he had pursued be fore. Testimony Aids Frank. Jones, an insurance man, in whose company Prank holds a policy, de nied that he had heard any of the reports of alleged immorality.. He said that the young man’i, record, in respect to health, habits and morals, had been very thoroughly investigated before the policy was issued. He tes tified that Frank showed an unusual ly clean record. The bars w'ere let down for the in troduction of testimony against Frank's character when the defense put on the stand Alfred L. Lane, of Brooklyn, a classmate of Frank In Pratt Institute. Lane said that he had known Frank for fifteen .years and that he knew he possessed a good character. jane was followed by two other of Frank’s classmates. They were Richard A. Wright, a consulting engineer of Brooklyn, and Philip Nash, a clerical engineer, of Ridgewood, N. J. Both testified as to his good character. Several wit nesses intervened and then Ashley Jones was called. Important testimony was given by Dr. William Owens, who was one of four men who sought to reproduce the disposal of Mary Phagan’s body as Jim Conley described it. William A. Fleming took the part of Frank and a Mr. Brent the part of Conley. Conley said that he ami Frank car ried the body downstairs and re turned to Frank’s office in about five minutes. Dr. Owens said that it took them about eighteen and a half minutes to carry out the drama in the pencil factory, exclusive of writing the notes and also exclusive of the time that Conley said lie spent in the wardrobe in Frank's office. If the defense is able to make the jurors believe that it would have taken Frank and Conley eighteen and a half minutes to accomplish this, they will have established what is considered a very strong alibi for the superintendent. To this must be added tho eight minutes that Conley declares he was in Frank’s wardrobe and about twelve minutes for the writing of the four notes this is half of the time that It probably would have taken the negro to write them according to the testimony of Harry Scott, Pinkerton detective. This makes a total of thirty-nine and one- half minutes. Conley said they start ed with the body at 12:56. The thir ty-eight and one-half minutes would have brought the time to 1:34 1-2. But. according to one of the State’s own witnesses, Frank had left the factory and had arrived home at 1:30—or. in other words, had arrived home before the disposal of the body could have been accomplishe 1. Quinn Severely Grilled. Lemmie Quinn, metal department By 1 L. F. Woodruff. There is one class of men to whom death is supposed to hold no horrors They can not think of it and earn their dally bread. Were the fear of Iomh of life to enter their brain for one single second during their daily task they would be as useless as a motorless automobile. Their pay is high for scorning the grave. They can see one of their companions fall victim to the perils of their calling and go back to work on the same job a few minutes later without a tremor, and encounter those same dangers with footstep firm and their minds only on th© work they have to do. These men are the structural steel workers. They are as picturesque a class as the struggle for dollar*? has developed. The fascination of their calling is universal. No man can pass the place where a building is slowly reaching its way into the clouds with out standing in an awe-struck trance watching these men scamper around betw-een heaven and earth as though they w’ere walking about a place as safe as the quiet walk under the shade trees of Grant Park. Furnish a Bizarre Feature. And these men make one of the strangest studies of all the bizarre features of the trial of Leo Frank. Just across Hunter street from Judge Roan’s courtroom, where the factory superintendent Is fighting to clear his name of the charge of hav ing killed Mary Pnagan, Fulton Coun ty’s magnificent new temple of justice is nearing completion. But there is still work to be done on the dizzy height© of the upper stories. The men of the building trades are there and their interest in the dramatic court battle that is being waged within a wtone’s throw of them is as intense as is the interest of any of those who have sat through the tedious days of the hearing constant spectators of the trial. These builders, from their lofty working place acros the street, can peer through the courtroom windows and see the trial as it progresses. They can not hear a word of the evi dence. They miss tlie forensic clash ;s of the counsel. Dare Death to Watch, But still there is not a moment of the time that the case i* in progress that life and limb are not risked b> these men as they stare into the courtroom. They can see Frank as he sits through hour after hour of his greqt ordeal. They can get glimpses of the faces of his wife and mother, of tlie witnesses as they take the stun 3. and of the Judge on the bench. They , can see the bulky back of Luther Rosser and the energetic gestures of Hugh Dorsey. That is all. To see these, things they must lean far out from their insecure perches, with death certain if they should fall to the pavement a hundred feet below. There is but one explanation for their interest. They know' a man Is fighting for his life in that courtroom across tho street. And while death may have no ter rors for them, it has a fascination as subtle as the stare of a serpent’s eye to a bird, as strong as the rivets of steel with which they earn their live lihood. By 0. B. KEELER. foreman, receive! a severe grilling from Solicitor Dorsey in the after noon. but stuck to hip story that he visited the office of Frank at about 12:20 the afternoon of the murder. This is in contradiction of Conley’s story, who testified that he saw Quinn enter tlie factory before Mary Pha- gan and Monteen Stover came. The Solicitor displayed affidavits of Quinn in which the foreman said he had been at the factory sometime between 12 und 12:20 o’clock. Quinn said that at the time he made the affidavit he had I--p I he tim he had been able to do since. Other witnesses of the day were Dr William S, Kendrick, head of the chair of medicine of the new Atlanta Med ical School; Frank Payne, a former office boy for Frank, anil Oscar Pap- penheimer, a stockholder in the Na tional Pencil Factory. Right in the first jump, please un derstand that (1) this is merely the opinion of a layman, unlearned in the law; that (2) he may be the only layman in existence who feels this way about it; and (3) the Frank trial is not being singled out in the fol lowing comment, except as it Is a fair example of the great criminal trials of this country. • • • In following the trial of Leo Frank, two points keep prodding me with increasing fervor. These are the points: (1) That the prosecution’s efforts are centered on producing evidence that will convict Iveo Frank. (2) That the efforts of the defense are devoted to producing evidence that w’ill acquit Leo Frank. Now, having read thus far. you probably are smiling to yourself at the idea that anybody should under take to write a newspaper story about a great trial, basing it on such an absurdly simple and obvious observa tion. State’s Evidence AM Damaging. That (you say) i9 something every body knows. That (yon ray) Is taken for granted. Nevertheless (I say), that doesn’t make it right. I sat in Judge Roan’s courtroom, right at the edge of the Jury box. and I heard the State prerent its case. Every bit of the State’s evidence was damaging to Leo Frank. If the State of Georgia knew’ any thing good about Leo Frank, or had any evidence that tended to cast a doubt on his guilt of a horrid crime, the State of Georgia kept that in formation strictly to itself. I heard the defense begin attacking the evidence offered by the State, an 1 offering (in turn) evidence that tend ed to 'show the innocence of Leo Frank. If the lawyers of the defense knew’, down in their hearts, that certain points made by the State were true; if they realized that certain facts wer© unshakable; if In their investigation they had found certain things that tended to fasten on their client the murder of Mary Phagan—if any of this was in the mind of the defense it did not get out where the jury could see it. How About Investigation7 Well (vou say), it would be a pretty kind of defense that would produce evidence that would hang the de- fenunt. And (you added) isn’t that what the State of Georgia pays its prosecutors for? For what? Conviction? Or INVESTIGATION? That was the most unmerciful of the prodding points. .Of course, now, the State’s attor neys in the Phagan case say they be lieve Frank is guilty, and equally, of course, the lawyers for the defense declare they are convinced of the in nocence of their client. But that is always the case in important murder cases, and furthermore, as I have said, I am not talking about the Frank trial as much as about a system of justice. I asked a lawyer about it; a widely- read and learned lawyer, with some thing in his head besides the law he has absorbed. I said: "Honrstly, now—isn’t this system of criminal prosecution ell wrong? Oughtn’t the State b.ive investigators instead of prosecutors? Why should the accused have any defending coun sel. Jf the State were not prosecuting, but making a fair and impartial in vestigation ?’’ I thought the idea was nighly origi nal. I learned something, right away. The widely-read and learned law yer informed me. kindly but firmly, that that was on Original Idea a good many hundred years ago. That it was THE original Id* a of dealing with criminal cases, in fact. That it was pretty nearly fixed in the basis of good old English law. He went on to explain that In the early days when a crime was com mitted, the proper officer—I forget what his title was—the proper of ficer started an investigation. If a man apparently was implicated by thw first evidence brought to light, that man was detained. If he had already "beat It," that was added to the sus picious circumstances against him, ana the pursuit began. But if he was well in hand, and th© case was a regular mystery, the in vestigator for the Crown, or whatever It w’ae, went into that case exactly like a certified accountant examining a set of books, suspected by the firm of not being correct. Auditor Has No Interest. The auditor doesn’t care a whoop whether he finds the suspected book keeper guilty or Innocent. That is, he has no interest at stake. He is paid for making a correct audit. Ho is paid by the Job. Probably, unless his liver is out of whack, he would rather see the poor bookkeeper cleared. But he has no interest in the matter. Well, it seems from what the law yer told me, that w’as the original plan of criminal prosecution by the State. The State d! (V ' prosecute. It just investigated, it the facts produced by the investigation warranted a jury in "sticking" the accused, well and good. If the evidence warranted the Jury in turning him loose, also well and good. The accused had no "counsel,” the way w’e understand it. If he was a rich person, or had rich friends, he was privileged to employ an investi gator, or Investigators, who would as sist the public investigator in his in vestigation. Hired Help Might Convict. But It was understood that if th© hired help turned up anything damn ing. the darning thing would be al lowed to go ahead and damn as hard as it could, without concealment or mitigation on the part of the assistant investigators. Wherefore, it w’as not the prudent part of guilt to employ additional In vestigators. And now, reverting to the enlight ened present, what have we on exhi bition? Not singling out the Frank trial, you understand, but in it. as in every big criminal trial in this country, where th© accused is able to employ talented counsel, we have the spec tacle of two sets of abl lawyers, fight ing each other with all the resources of their learning and shrewdness and. ability. The life and honor of the accused may be at stake—the prosecution, one© committed to its task, will seek no evidence but w hat will Incriminate him. Th© high claims of Justice are at stake—the defense must permit no shred of evidence to be presented, saving only what wdll tend to clear their client. And Ho Didn’t Explain Why. It is no fault of the prosecutor that this is so. It is no fault of the lawyers for the defense. And as to tho system? Well, this Is just the opinion of a layman, you remember. It may b© that there is a good reason in law why .the investigator has become a prosecutor, and is paid as such; and why the defendant may employ ex pensive counsel to combat the Inves tigation — or prosecution — at all points. There may be a good reason for all this. Only, my friend, th© lawyer, didn't explain it to me. $9.00 WRIGHTSVILLE BEACH Round trip, August 16. Good 15 days. Through sleepers. Seaboard. All Norfolk Suits To Close Out at Two Special Prices $12.50 Choice of Values Ip to $20 We’re going to give you choice of any and all Norfolk Suits that ranged up to $20 at $12.50. 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