Wednesday, 6th August 1913 Defense Asks Judge Roan to Strike From Records Part of Conley Testimony

Atlanta Constitution
August 6th, 1913

At the opening of the afternoon session, Attorney Reuben Arnold arose, asking that the jury be sent from the room. When the twelve men had passed into their ro[o]m, he made a motion asking the court to exclude from Conley's statement that testimony pertaining to Conley having watched previously for Frank and to an unprintable scene the negro said he had witnessed between the superintendent and a young girl in Frank's office.

The motion was made on grounds of irrelevancy.

"First," said Mr. Arnold, "I desire to ask the court to rule out that testimony of Jim Conley's which pertains to his having watched for the defendant on occasions before the date on which the girl was killed. The defense proposes to withdraw all cross-examination on this point.

Asks Testimony Ruled Out.

"We also desire to withdraw from the records that part of Conley's statement in which he tells of Frank having told him at the head of the stairway on the second floor of the pencil factory that ‘he was not built like other men,' the answer Conley made to Dorsey's question: ‘What did he mean by that?' and the scene which the witness related.

"It is here in the court. I don't want to read it aloud before these ladies present, so I will show it to your honor. This, I want ruled out. This scene which the negro alleges he witnessed was brought into the case purely to prejudice the court against the defendant."

In reply, Attorney Frank Hooper, for the prosecution, said,

"On the first motion to rule out evidence pertaining to other cases of Conley's having watched for Frank, it comes too late, and to rule it out would give counsel opportunity to tamper with the courts. They have crossed the witness and brought out both direct and indirect testimony bearing on the particular phase. It's now too late for their objection.

"I agree that it should have been ruled out, but should have been ruled out at the proper time. In the motion to rule out Conley's statement of the scene he declared he witnessed, I think it is a good motion, but I doubt their rights to come in at this late hour and make an appeal to bar testimony which was permitted twenty-four hours ago."

Dorsey Opposes Request.

"Solicitor Dorsey said:

"As an original proposition, this testimony is admissible. Is it just, as a matter of plain, common sense, to let these men give this negro a gruelling examination, and, after they have thrashed it out, to let them expunge his statement? Has it come to that?

"We expect to sustain Conley in all he has told. There is such a thing as fairness between the state and defense on the part of the court. Four able attorneys here have sat and let testimony enter the records without making protest, cross-examine him for two days, and twenty-four hours later, decide to complain.

"Our case, if this testimony is expunged, will have been done inestimable damage. There isn't a lawyer or layman who cannot see that such able counsel should have made a timely plea, and not one so absurd as this. They have found, after two days of cross-examination, the terrific force of this evidence and they seek to strike the state a blow. It isn't fair, and I appeal to your honor to protect the state.

Evidence Is Admissible.

"Aside from all that, this evidence is admissible. He has testified to Frank's course of conduct. The defense has shown Conley is the youngest negro in point of service in the pencil factory and have brought out testimony from all sides having direct bearing on the evidence against which they protest.

"Your honor himself must recollect a recent case [several words cut off from newspaper scan] state to go back for a period of fifteen years to show a course of dealing characteristic of the defendant. This evidence of Conley's illustrates a motive for Frank getting the child into his office and his conduct toward her when he got her there."

The solicitor read numerous extracts from statutes.

"Anything," he continued, "revealing […]

DEFENSE ASKS JUDGE TO STRIKE TESTIMONY

[…] practices or course of conduct is admissible. The value of this evidence certainly is apparent to your honor. This evidence in all manner will be amply corroborated. This evidence goes to show who killed little Mary Phagan.

Courts Slow to Progress.

"The courts are slow to progress, but this one law which admits all testimony relative to the defendant's course of conduct has moved them up a pace. It's the law, your honor, and it should be sustained."

At the close of the solicitor's speech, Attorney Arnold arose, saying,

"There is no use in getting wrought up over this matter. I could if I wanted to tear up a little turf myself. The person who is hurt is the defendant. He is done grievous injury by this vile evidence which has been admitted by one of the state's attorneys to be irrelevant.

"In a criminal case you can never try a man for but one offense. That's the good, old Anglo-Saxon law. I sympathize thoroughly with the mother of the murdered girl and I think it was one of the most diabolical crimes ever committed, but my friend Dorsey and the courts if they do not give this trial a fair deal will be just as red-handed as the man who slew little Mary Phagan.

"This miserable wretch Jim Conley gets on the stand and details another capital crime. I am sorry for any white man who believes him. Sodomy is a capital offense. That's what he lays at Frank's door. We are not called on to try this issue, thank the Lord.

State Aware of Fact.

"It is not plain that the murder was premeditated. The state is well aware of that fact. They could not pick out, however, a better set of circumstances than the negro's previous watching which he alleges he did for Mr. Frank. (The attorney read a number of authorities pertaining to character of defendant in other actions irrelative to the crime for which he is being tried.)

"If we were to go into all this as the state strives we'd be here weeks subpoenaing witnesses who could recount the Thanksgiving day and the other days of which this negro speaks if the state can prove such incidents why we can rebut them. The testimony of this man Conley doesn't mean much but it's the suggestion that hurts."

Judge Roan, in stating his attitude said,

"There is no doubt in my mind but that this evidence as an original proposition is inadmissible. I rule out all except the watching which the negro says he did on the day of the murder. I will reserve my decision, however, until I consider it thoroughly. Also, I will postpone any statement to that effect before the jury."

* * *