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! TTTTC ATLANTA GEORGIAN AND NEWS. DEFENSE SHIFTS BURDEN BY MAKING CHARACTER OF LEO FRANK AN ISSUE ONE OF THE FIFTY NEW WITNESSES SUMMONED BY THE PROSECUTION 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*i Justice ot tne 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 cf 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. 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 gor\e 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 thin? 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 iury —the twelve minds of the jury, indeed —for it will not do to leave even a fraction of Conley’s story undemol ished! 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 1 think it may suffer before the jury irreparable injury. Curiously enough, the burden of proof in the Frank case erned to have been shilled a week ago—tha*. 4«. 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, t uit 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, gnyway, to where the law contemplates it shall rest. The State must complete its proof 0t Frank’s depravity, or the State wl'l not have made out such a case as likely will stand to the last analysis. Defense Plans It* 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 the State vs. Frank. Na 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 defendant’s statement. He will make it just be fore the defense rests its pleading. Already, this anticipated dramatic event has cast its shadow before. The public is looking forward to Frank’s attorneys. He simply 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 iii 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. The defendant can not be Im peached; he can not be cross-exam ined; he can not be prompted by his i Miss Fannie Atherson, who has been called to aid State. 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SliJfFSTATE'S SOLE AIM IS TO T, DEFENSE’S TO Oarpful experiments and investigations have shown that as the troubles were expelled from the nose ami throat, the real cause of the disease was over looked and in a short time the Catarrh would re turn stronger than ever, Mr, Gauss has gone wav ahead of the ordinary methods of treatment and has provided a remedy that Kills the Germs in the Blood and immediately gives re lief to the nose and throat He oerfected the New Combined Treatment, since admitted to be the logical, sure, scientific '"peese Jones, of Scranton. Penn., says that after trying many other treatments, he used this new " a nd— "My nose is now entirely clear and uee and X am not bothered by the disease any more The New Combined Treatment Is worth its W Tfmnorarv relief from catarrh may be obtained ,,, ways, but the New Combined Treatment IT ' inevitably be accepted for permanent results. Sarah .1 Cape, Mount Pelia. 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Simply clip, sign and I*,. 0 .:, the coupon and the test package / ,i,,. \>w Combined Treatment will t,L ■ ■ >'\ fully prepaid, together with the Valuable book on Catarrh. Tf your New Combined Treatment will relieve my Catarrh and bring me health and good spirits again, I am willing to be shown. So, without cost or obligation to me, send fully pre paid the Treatment and Book. Name Mail to C. E. Gauss, 4657 Main St., Marshall, Mich. pleases, in the exact way he pleases, and in such detail or lack of detail as he pleases. It is strictly a matter between the defendant and the jury. Leo Frank is one of the few de fendants in murder cases com’ng un der my observation, who absolutely refrained from discussing his cast, :»i any phase of it, in advance of his trial. 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 FTanK 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, the court and the jury. It is unlikely that the public wishes to hear anything quite so much as exactly what Frank himseif has to say of the charges lodged against Turn. 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 itself! . . .. - 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's hor rible statement surely must have had by way of then condemning him. juries Have Accepted It. I have seen eases 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 tight to do. On the other hand, I have seen the defendant’s statement fall Hal 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 the man making it, his in telligence and apparent directness of purpose, the necessity of the state ment as hearing alone and entirely upon weak points in either his own 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 1s so thoroughly a fight between Conley and Frank—that is, between Conley’s evidence and Frank's evidence—it will be 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 wili ng 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 en Ire 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, Is 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 as It could be, from an ab stract legal standpoint. 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, I really could not say! Frank’s Mother Resents Questioning of Dorsey 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 Mrs. 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 expressiohless face while the most abhorrent charges were being made. Save that she looked away from the crowd as if »t were a terrible ordeal to listen to the testimony, it wbuld 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 reache3 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, about incidents in the girls’ dressing room which the Solicitor in timated that Frank invaded without apology or excuse. The mother of Frank lifted her eyes to the Solicitor. There was in them no longer the look of resignation with which the other charges had been met. In its place blazed hate and outraged mother love. She was will ing no longer to await the end of the 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, Asi ley 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 amo*ig the spectators, oblivious of the calls for 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 God, 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 Frank holds a policy, de nied that he had heard any of the reports of alleged immorality. He said that the young man’*, 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 were 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 be had known Frank for fifteen years and that he knew he possessed a good character. Lane 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 and 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 he 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 the 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 accomplished. Quinn Severely Grilled. Lemmie Quinn, metal department By 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 daily bread. Were the fear of lows of life to enter their brain for one single second during their dally 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 the* work they have to do. These men are the structural steel workers. They are as picturesque a class as the •struggle for dollars- 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 wltn. out standing in an awe-struck trance watching these men scamper around between heaven and earth as though they were 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 Phagan, FuUon Coun ty’s magnificent new tem{le of justice is nearing completion. But there is still work to be done on the dizzy heights 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 stone’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 across the street, can peer through the courtroom w-indows and see the trial as it progresses. They can not hear a word of the evi dence. They miss the forensic clashes of the counsel. Dare Death to Watch. But still there Is not a moment of the time that the case is In progress that life and limb are not risked by these men as they stare into the courtroom. They can see Frank as he sits through hour after hour of his great ordeal. They can get glimpses of the faces of his wife and mother, of the witnesses as they take the stand, 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 the 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 received a severe grilling from Solicitor Dorsey in the after noon, but stuck to his story that he visited the office of Frank at about 12:20 the afternoon of the murder. This is in contradiction of Tonley’s story, w-ho testified that he saw Quinn enter the 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 and 12:20 o’clock. Quinn said that at the time he made the affidavit he had not estimated the time so closely at* he had been able lo 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, and 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 laymanj unlearned in the law; that (2) he may be the only layman In existence w-ho 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 wi«h increasing fervor. Those are the points: (1) That the prosecution’s efforts are centered on producing evidence that will convict Leo Frank. (2) That the efforts of the defense are devoted to producing evidence that will 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 s^tpry about a great trial, basing it on such an absurdly simple and obvious observa tion. State’s Evidence All Damaging. That (you say) is something every body knows. That (you say) is taken for granted. Nevertheless (I say), that doesn't make it right. I sat in Judge Roan’s courtr^am. right at the edge of the jury box, and I heard the State present its ease. 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, and offering (in turn) evidence that tenu- ed to show the innocence of Leo Frank. If the lawyers of the defense knew, dow-n in their hearts, that certain points made by the State were true; if they realized that certain facts were 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 (you say). It would be a pretty kind of defense that w-ould produce evidence that would hang the de- fenant. 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 w-idely. read and learned lawyer, with some thing trr his head besides the law he has absorbed. I said: “Honestly, now—Isn't this system of criminal prosecution ell wrong? Oughtn’t the State have investigators instead of prosecutors? Why should the accused have any defending ooun. sel. Jf the State were not prosecuting but making a fair and impartial in-* vestigatlon?” I thought the idea was Highly origi nal. I learned something, right away. The widely-read and learned law* yer Informed me. kindly but firmly* that that was an Original Idea a good many hundrediyears ago. That it was THE original idea of dealing w-itlt 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 tha early days when a crime was com mitted, the proper officer—I forget w-hat hl9 title was—the proper of ficer started an Investigation. If a man apparently was implicated by the first evidence brought to light, that man was detained. If ha had already "brat It,” that was added to the sus picious circumstances against him, ana the pursuit began. But if ha was well in hand, and the case was a regular mystery, the in vestigator for the Crown, or whatever it was, went into that case exactly like a ceitiffed accountant examining a set of books, fiuspected by the firm of not being correct. Auditor Has No Interest. The auditor doesn't care a w-hoip w hether he finds the suspected book keeper guilty or innocent. That is, he has no interest at stake. H<* is paid for making a correct audit. H* is paid by the job. Probably, unless his liver is out of whack, he would rather see the poor bookkeeper cleared. B«t he has no Interest ill the matter. Well, it seems from what the law yer told me. that was the original plan of criminal prosecution by the State. The State didn’t prosecute It just investigated. If the facts produced Ly 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 we 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 the 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 mltigaiion on the part of the assistant investigators. Wherefore, it was not the prudend 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. a9 in every big criminal trial In this countr?, where the accused is able to employ talented counsel, we have the spec tacle of two set.*-' 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, once committed to its task, will seek no evidence but wha t will tncrimin its him. The high claims of justice are at stage—the defense must permit no shred of evidence to be presented, saving only what will tend to clear their client. And He Didn’t Explain Why. It is no fault of the prosecutor tha,t this is so. It is no favit of the lawyers for thu defense. \ And as to tn\ ..system? Well, this is just the opinion of a layman you remember. It may be that there is a good reason in law why the investigator has become a prosecutor, and is paid as such; and why the defendant mav 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, the 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 $17.00 Choice of Values $22.50 to $27.50 $12.50 Choice of Values Up to $20 We’re going to give you choice of any and all Norfolk Suits that ranged up to $20 at $12.50. In this range are fancy fabrics only—and sizes running from 32 to 38. We’re going to give you choice of any and all Norfolk Suits that ranged from $22.50 to $27.50 at $17.00. In this range are fancy fabrics— blues and blacks—and sizes run ning up to 38. Parks=Chambers*Hardwick 37-39 Peachtree C 0 ttl P 3. II y Atlanta, Ga.