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ATLANTA, it«.. SV MM!. Al.UI-M 1'). HU.1 \ l'1/ANTA, M MMV, Al lil'SST 17. 1913.
DORSEY SURE OF CASE AS CRISIS COMES
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Solicitor Expects to Prove That Frank Had Life Which He Hid From Relatives and l 1 fiends
Trial Will Last Through Week, Declare
Men Who Have Followed It.
Jurors in tin Frank case sketched in the courtroom. They are: 1. M. Johenning. 2. A. L. \\ isbev, 3. F. V. L. Smith. 4. Deder Townsend, 5. M. S, \\ °odw <ud,
6. A. H. Ilenslee, 7. W. M. Jeffries, 8. J. T. Ozburn, 9. Charles J. Basshardt, 10. W. S. Medcalf, ll.Fred E. Winburn, 12. J. F. Higdon.
Continued from Pago 1.
the defense to train Its every gun
.-(luurely ujton It, for upon Conley’s
story will the State be forced to stand
or fall eventually.
One of the curious thing* about the
Frank case is the way the question
of his general character got into the
pleadings.
Theoretically, the defense alone
may put the defendant’s character in
issue—it being contemplated by the
law that no man shall be required,
without hia own consent, to answer
will be to fall in a crisis heavily im
portant to the State now.
Liability Becomes Asset.
Strange to say—there are so many
strange things to say in this aur-
passingly strange Phagan story—one
of the State's apparent weaknesses is
proving, in one direction, to be one ««f
its greatest elements of strength.
The deefnse’s strenuous insistence
that Conley's remarkable story is ini-
fore 12:12, and that the clock In the
factory, by which both Miss Stover
and Conley testified as to the time,
was running SLOW on the day of
the crime.
In other words, to meet its own
more thin one charge at one and the
same time.
And so far as legal strategy
and astuteness is concerned, the
State ouegenera ltke defense in
the matter of getting Frank’s
character before the jury.
Had Conley, the State’s star
witness, ben a man, even a
negro, of respectability and ap
proximately good previous rec
ord, the necessity of attaching to
Frank the charge of utter de
pravity might not have seemed
so pressing. But Frank’s pre
vious good record seemed so well
established, and his standing
generally was thought to be so
high, that it contrasted rather
painfully with the record of the
main witness of all others (Con
ley) set up for the defndant’s
undoing.
The State doubtleas knew that the
unspeakable portion of Conley’s evi
dence was primarily Inadmissible, but
It also knew that the defense would
be taking; rather a long chance to
move Its rejection when tendered.
In that event, a sinister and cer
tainly dangerous Impression would
have been left upon the mind of the
Jury-
So the State deliberately drew out
of Conley the unmentionable charge,
which In addition to the murder
Charge, undoubtedly made absolutely
necessary the Injection of FYank s
character In leau«.
The defense. In not objecting to the
admission of the evidence last cited
when It was first ofTered, may have
been moved by the idea that it would,
In the cross-examination of Conley.
bo break him down that it still might
save itself the necessity of pleading
Frank’s good character—that it would
even be able to make the frightful
charge of perversion act as a boomer
ang on Conley!
Defense Object* too Late.
Seemingly, that idea, if it ever ex
isted was dissipated as the Conley
cross-examination proceeded, how
ever, for eventually the defense I>ID
move to strike out the evidence, but
at that time it was too late
Having walked into the trap set by
the State, if it indeed was a trap,
the defense.could not very well extri
cate itself save by pleading Frank’s
complete good character, and thus in
a sweeping way dispose of the spe
cific charge lodged against Frank by
Conley, in addition to the murder
charge.
Once commuted to the necessity of
establishing Frank’s good character,
however, the defense went at it in no
half-hearted way.
It summoned indiscriminately every
employee of the National Pencil Fac
tory, male and female, old and new,
'- end with unanimous voice they testi
fied willingly and thoroughly that the
defendant’s general character 1b good.
In addition to these witnesses, busi
ness men, former college professors
Lnd classmates, and dozens of others
fell into line with the same line of
evidence.
The State now stands, therefore,
where it must close up the gap be
tween its primary allegation, depend
ent alone upon Conley’s word so far,
and the absolute proof of his sinis
ter story.
If the State in rebuttal is able to
prove conclusively that Frank is the
thing Conley has labeled him. the
State’s case will go to the Jury dan
gerously formidable
If it fails to substantiate and corrob
orate Conley, it will go to the jury
greatly weakened.
^To overcome the fine showing as to
Br^nk'K good character made by the
^■efense the State must bring forth
-itnesses in rebuttal that can not be
Impeached.
The irAiression throughout Atlanta
ift that To fail in the establishment j
anc corroboration of Conley’s story
fey .witnesses of integrity and standing J
possible is one reason why a lot of
people are saying tU^.t it is impossi
ble. Conley may have manufactured
it out of the whole cloth.
If it 1b a He. it is a lie too devilish
ly cunning for a negro of Conley’s
limited mentality to conjure or carry
in bis own mind in such remarkable
detail, these people bold. If the ne
gro were only less sure of everything,
if he had wabbled dangerously under
the terrific grilling administered by
Luther Z. Rosser, if he had broken
down or contradicted himself In any
essential detail once he got to the
witness stand, it now would bo an
easier thing for many neople. fair-
minded enough, too, to belieev the ne
gro’s tale a mass of lies from start
to flnlrfh!
And the danger to the defense her^
is that if Conley’s story sticks in the
minds of the Jury, even In fractional
part, it probabl- lust as well stick in
its entirety, so far as the hope of ac
quittal upon this tTl .1 1s concerned.
In other words, many people are ar
guing to themselves that the negro, no
matter how hard he tried and no mat
ter how generously he was coached,
still neevr could have framed up a
story like the one h** told, unless there
was somewhere in it some foundation
in fact.
And if there remains the impres
sion of even a little foundation in
fact, the defense is damaged beyond
repair.
And so it gets back to where It
started, and to where it will end—it
is Conley pitted against Frank!
The State, with the burden of pro-'f
to carry, appears to have considerably
more of an uphill fight on Its hands
than the deefnse has. and yet the
very nature of both fights—uncom
promising. and neither asking nor
giving quarter—makes it something
of a toss-up. really, as to which actu
ally. and ns a matter of fact, has the
harder task to perform.
Undoubtedly, the defense expects *o
profit much through its insistence that
the time element, as ; set up in Con-
lev’s story, constitutes a most vital
and compiling factor in determining
the tru*h or falsity of th« entire story.
Relv on State Witnesses.
It is rather odd. too. that the de
fense should be relv’ng upon the
State’s witnesses in this matter quit 0
a" much as u^on its own. Tt will
seek to use generously the State’s
witnesses to the State's embarrass
ment—through the discrediting of
Conlev’s story—in several different
directions.
The deefnse is seeking to show how
utterly absurd Conley's story Is from
Frank’s point of view, bv setting up |
these incompatible things:
That Marv Phagan (Conlev’s tes»*t-
mon*) reached the pencil factory suf
ficiently well in advance of Monteen
Stover (Conlev’s testimony) to go up
to Frank’s office, get her nav. be lured
to a room in the rear and killed, not
withstanding ’he fact that M*«s Sto
ver (Conley’s and Miss Stover's testi
mony) reached the factory at 12:0.”.
And this despite the fact that Mary J
Phagan could not have been in th a |
factory before 12:12. in any event. ?
shown by Mrs. Coleman (Marv’s
mother). George Epps, a motorma i,
and a conductor.
To get around this state of things,
set up for the most part bv the 1
State's own witnesses, the State al- I
ready has suggested, by a line of ex- I
animation probably to be amplified, j
that the car upon which Mary Phagan '
mme into (own on Saturday, April 26. j
was running AHEAD 'f scheduled
time, and that the litle girl did, as a j
matter of fact* reach the factory, he- i
witnesses' statements, the State will
move backward the time of the street
car and move forward the time of
the office clock!
If the State can do that, which
looks like a big Job, it will eliminate
the dangerous time element in one
direction, at least; but if it can not
do that, it will find itself in a most
trying position.
And whether it now can get away
from its own established time element
is one of the very prettiest problems
involved in the entire case thus far!
Again, the defense will insist that
the time element cuts In another di
rection most favorably in Frank’s
behalf, when it will show by Conley’s
evidence that the disposing of Mary
Phagan's body began at 12:56. but
that Frank was seen at the corner of
Alabama and Whitehall streets at
1:10. w r aiting for a car.. The latter
fact is testified to by Miss Helen Cur
ran positively, and she is unimpeach
able.
The defense contends that the body
of Mary Phagan could not have been
disposed of, and the things done that
Conley alleges were done, within the
fourteen minutes of time thus allow
ed, between the beginning of the
work, according to Conley, and the
time of Frank's presence two blocks
and a half away.
Conley would have been obliged to
dispose of the body in the remarkable
way he says he did. have written the
notes, remained in the wardrobe eight
minutes or more, all within the four
teen minutes.
According to the State's own wit
nesses. Conley was in the wardrobe
eight minutes and used six minutes
framing the notes. This would have
consumed the entire fourteen min
utes, without the dead girl’s body ever
having been touched.
It is admitted among lawyers gen
erally that there Is no defense so com
pletely effective as a sustained alibi—
which means that the crime alleged
was committed in the absence and
without the knowledge of the alleged
principal to it, or, more properly
stated, perhaps, that the crime could
not have been committed by the de
fendant because it would have been
a physical impossibility for him to
have effected it. in the circumstances
of it.
The past week, of course, was the
defense's day in court, and it is but
fair to say that it made good use of
it.
Challenge to State.
It has frankly and aggressively
urged Frank's character as a vital
fact in his favor, and it thereby chal
lenged the State to do its very worst
by way of breaking that character
down, if it can.
This attitude upon the part of the
defense undoubtedly has had a
steadying- effect upon the public, too,
for it seems at least to have suspend
ed judgment pending the State’s re
buttal.
In addition to its insistence upon
Frank’s good character, the defense !
unquestionably has given the State j
serious concern in the way it has
brought forward the time element. I
and that in two separate and dis-
tintft directions.
XL it successfully maintains either'
one of its time theories, it will have
greatly discredited Conley’s story. If
it successfully maintains both
theories, it will have about discredit
ed the Conley story to the point of
complete collapse.
As it was out of order to conclude
at the end of the second week of the
Frank trial, however, that the State
had made out a case that could not
be broken down, so It now is out of
order to conclude that the defense
has broken down the State.
The State for one thing does not
appear to be particularly alarmed,
either by the injection of Frank’s
character or by the turning of the
time element against the Conley story.
The State, it must be remembered
has not yet entered or disclosed -ts
rebuttal, either of the character evi
dence or the undermining of its own
witnesses as to the time elements
stated.
State Seems Confident.
It is perfectly confident of its abill
ty to show that Frank’s character is
not good, despite the opinions of his
friends, business associates and ac
quaintances: and it will insist, indeed
that as in other depraved characters
of the sort it claims Frank to be. his
business acquaintances, his relatives
and his social intimates would be the
very last people of all to discover the
truth concerning him.
The State, in seeking to ptdvp
Frank a dissolute character, may t>°
forced to the summoning of dis
solute characters, with whom he is
alleged to have been associated in
degrading practices, in order to prove
its contention.
Thus witnesses brought out by the
State to establish Frank’s depravity
are apt to be easier marks for Im
peachment proceedings than wit
nesses of the ordinary sort, and to
that extent the breaking down
Frank's character is pregnant with
difficulty.
Nevertheless, the State proposes to
establish the fact of Frank’s degen
eracy by witnesses of sufficient credi
bility. particularly in the nature of the
charge sought to be proved, to get by
at least in sufficient numbers to over
whelm the defendant.
If the State can put up even one
two witnesses that can weather the
gale of the defense’s rights of im
peachment, it will have put Frank In
a most unenviable position before the
jury. If. therefore, it puts up 50 wit
nesses, and 4* of them get knocked
out, there still will remain the two
chat stood the test!
Here, then, is another prettv prob
lem to be thrashed out: Gan the
State, in sustaining a charge of de
generaey against Frank, bring forth
witnesses to prove it absolutely, and
at the same time not bring forth wit
nesses so much a r rty to Frank’s of
fense that they \i: run serious risks
in testifying themselves?
A witness who i« willing to swear
that he saw' Frank do thus and so. or
was a party to Frank’s doing thus
and so. if the thus and so is particu
larly reprehensible, is apt to get >n
pretty thin ice himself. If he isn’t
very careful!
The State says it can and will rebut
Frank's good character. If it does.
Frank is in unutterably bad sharer
but if it doesn’t. Frank's cause must
be helped tremendously'
ter. Her sister had threatentod fa
quit on this last occasion, she testi
fied, but had been persuaded against
it.
She said that Frank merely pushed 1
the door open, looked in. one one oc
casion smiled toward Miss Kitchen,
and then turned around and walked
away. She testified that the girls
never were any further in a condi
tion of undress than lacking their*
overskirt.
Solicitor Dorsey inquired of her in
regard to a reported remark of N» V.
Darley. general manager, that “if the
girls stay w’ith us through this, they
will not lose by it.’’ She said she hai
overheard Darley say this.
Many Employees Called.
The following pencil company em
ployees were called as character wit
nesses during the day:
Misses Mollie Blair. Ethel Stewart,
Sarah Barnes, Corinthia Hall, Ina
Hayes, Eula May Flowers, Elma
Hayes, Minnie Foster, Obie Dicker-
son, Gussie Wallace. Annie Osman,
Bessie Thrailkill. Allie Denham, Re
becca Carson. Maude Wright, Iren©
Jackson, .and Mosdames Emma Free
man and Ella Thomas.
Girl on Stand Shouts She
Would Die for Leo Frank
Employee of Pencil Factory Furnishes Dramatic
Incident of Day—Dressing Room Evidence
Is Brought Out.
More than one hundred witnesses
had been called to testify in defense
of Leo M. Frank’s character when
the third week of the factory supar-
intendent’s trial concluded shortly af
ter 1 o’clock Saturday.
Character witnesses occupied most
of the time during the four hours of
Saturday’s session. They displayed
a remarkable loyalty to their em
ployer, who is being tried on the
charge of being the murderer of little
Mary Phagan. Only one of the num
ber, Miss Irene JacKsuci, gave testi-
money in any way prejudicial to the
case of Frank.
The character testimony, the tale
of the finding of Mary Phagan’s en
velope and other so-called clews on
the first floor of the factory by W. D.
McWorth, Pinkerton operative, and
the return of Mrs. Rae Frank, moth
er of the defendant, formed the im
portant features of the day.
Girl Furnishes Incident.
A spectacular incident, w’hich
would have been even more amusing
than it proved had it not been for
the evident sincerity and profound
earnestness of the witness, came in
the testimony of Miss Sarah Barnes,
one of the pencil factory employees.
“I’d die for Mr. Frank if they’d let
me!” she exclaimed almost the in
stant aho had composed herself in
the witness chair. Attorney Arnold
had only time to ask her the formal
question: “Do you know Leo M.
Frank, the defendant in this case?”
oefore she launched into a eulogistic
description of the young factory su
perintendent that left her breathless
at the end of five minutes.
The attorney sought to interject an
other of the formal questions pre
scribed by law. but by the time she
had caught her breath and was en
gaged In telling her willingness to
lay down her life, if need be. to prove
the guiltlessness of frank.
Attorney Arnold could not stop her.
The court could not dam the flood of
words. She had a mind to speak ani
she was determined to speak without
check and without interruption.
“I know Frank couldn’t have com
mitted such a terrible'deed.” she cried.
| accompanying her declaration with an
emphatic brandishing of her folded
fan. “I nave known him ever since
I have been in the pencil factory. He
has always been kind to al! of the
employees and to the girls in par
ticular. He never has done any of
these things that have been told about
him. He has always been a gentle
man.
Willing to Die for Him.
“I’ve had to fight for him. almost,
a number of times since these awful
charges have been made against him.
I’m willing to fight for him again. I
am willing to die in his place.”
At this point she turned toward the
jury and said:
“You can give me any sort of a
death you want I know he is an in
nocent man. I just wish that 1 could
make everyone believe in his inno
cence.”
Attorney Arnold succeeded in the
brief space of one of the moments
when she paused for a fresh start to
ask the remainder of the questions he
desired. an*then gave her to Solicitor
Dorsey.
Dorsey met with the same trouble.
He tried to get her to say with whom
she had talked about the testimony :o
.which she was to swear. Disregard
ing his question as though it never
had beeh asked, she continued in her
encomiums of Frank until the court
room spectators were convulsed witn
laughter and the Solicitor filed witn
disgust at his inability to get the sort
of answer he wanted from the girl.
Miss Irene Jackson, daughter of
County Policeman A. W. Jackson, was
called by the defense as a character
witness, but gave testimony on her
cross-examination in regard to con
duct by Franak which the State has
•construed as highly improper.
Looked in Dressing Room.
Miss Jackson said that so far as
she kne'" the character of Frank whs
good and that she never had know’n
him to attempt any liberties with the
factory girls. To the Solicitor she
admitted, however, that she three
times had been in the girls’ dressing
room when Frank had pushed open
the door and looked in.
Once Emmeline Mayfield had be in
in the room with her, she said: once
Mamie Kitchen and once her own sis-*
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