0801 Page – Leo Frank Georgia Supreme Court Appeals Records, 1913, 1914

Visible Translated Text Is As Follows:

were not considered in the decision, which appears from the face thereof.
Plaintiff in error says that the error committed, as is disclosed from an
inspection of the grounds here quoted, was material. The facts alleged
herein to be overlooked in this ground were discussed in the brief filed
by plaintiff in error, as will appear from pages 213 to 215 of the original
brief, filed in this case.

10. - Because the Court, in rendering the decision in said case, over-
looked the following material facts in the record, to-wit, Ground 32 of
the motion for new trial, which reads as follows:

"Because the Court erred in declining to allow the witness, Miss Hall,
to testify that on the morning of April 26, and before the murder was com-
mitted, Mr. Frank called her over the telephone, asking her to come to the
pencil factory to stenographic work, stating at the time he called her
that he had so much work to do that it would take him until six o'clock
to get it done. Defendant contends that this testimony was part of the res gestae and
ought to have been heard by the Court, and failure to do so committed er-
ror".

Said ground just quoted set up material facts constituting error in said
case, which the Court, in the decision rendered, overlooked, and which
were not considered in said decision, which appears from the face thereof.
Plaintiff in error says that the error committed, as is disclosed from an
inspection of the grounds here quoted, was material. The facts alleged
herein to be overlooked in this ground were discussed in the brief filed
by plaintiff in error, as will appear from pages 291 to 292 of the original
brief, filed in this case.

11. - Because the Court, in rendering the decision in said case, over-
looked the following material facts in the record, to-wit, Ground 34 of
the motion for new trial, which reads as follows:

"Because, while Mrs. Freeman was on the stand, after testifying
as to other things, she testified that while she and Miss Hall, on April
26, were at the restaurant immediately contiguous to the pencil factory,
and after they had left the factory at 11:45 o'clock a. m., and had had
lunch that Lemmie Quinn came in and stated that he had just been up to
see Mr. Frank.

"Upon motion of the Solicitor, this statement that he had been up to
see Mr. Frank was ruled out as hearsay.

"This statement of Lemmie Quinn was part of the res gestae and was
not hearsay evidence, and was material in the defendant's case. Lemmie
Quinn was a witness for the State, and was in the office just before he went
down to the restaurant and had the conversation with Mrs. Freeman and Miss
Hall; this statement was strongly disputed by the Solicitor. Lemmie
Quinn's statement that 'he was on Frank's office just before going into the
restaurant was of the greatest moment to the defendant, because it strongly
tended to dispute the contention of the State that Mary Phagan was killed
between twelve and half past.

"The Court erred in ruling out and declining to hear this, for the
reasons above stated. The testimony was relevant, material part of the
res gestae, and should have been sent to the jury".