Sunday, 5th October 1913 Indefinite Respite Is Given Frank As Juror Charges Flood

Hearing of Motion for New Trial Is

Postponed on Motion of Solicitor

Dorsey. Henslee Indignantly Denies

Allegation That He Was Biased.

Confronted by 173 pages of alleged errors made by the trial judge, nine volumes of evidence and a mass of affidavits charging prejudice on the part of the jury. Solicitor General Hugh M. Dorsey and his assistant, A. H. Stephens, Monday morning will begin in earnest their work of combating the legal issues raised by the defense in its motion for a new trial for Leo M. Frank, superintendent of the National pencil factory, convicted of the murder of Mary Phagan on April 26.

The papers in the motion of the defense form one of the most voluminous assertions of error in a criminal trial that has ever been filed in Georgia, comprising 173 pages of "court errors" and more than a dozen affidavits attacking the members of the jury, particularly Jurors A. H. Henslee and Marcellus Johenning. Both of these jurors are charged with having expressed their conviction of Frank's guilt before being chosen on the jury, and to have profanely declared themselves in favor of the factory superintendent's execution.

It is not thought probable that Solicitor Dorsey will be ready to reply to the motion of the defense by next Saturday, when Judge L. S. Roan has set the hearing. Doubt of his ability to investigate the assertions and affidavits of the defense and prepare his reply was expressed by the Solicitor yesterday, when he asked Judge Roan to grant more time if he was not ready by October 11, 1913.

Solicitor Dorsey and his assistant, in preparing their answer by which they hope to prevent Frank getting a new trial, plan to probe thoroughly into every affidavit and other legal paper presented by the defense. The character of the men and women who made the affidavits attacking the jurors will be thoroughly investigated, as will the legality of the affidavits themselves, and the findings will be contained in the Solicitor's reply. Such flaws as he may be able to find in the records of the people who swear that Henslee and Johenning expressed their opinions before the trial will be used in his protest against the granting of a new trial, and the Solicitor also probably will present affidavits upon which the defense based its motion. Affidavits by which the Solicitor will seek to prove that the jury knew nothing of the state of mind of the crowd about the courthouse during the trial, and that the jurymen did not hear the shouts and anti-Frank demonstrations, will also be secured.

While Solicitor Dorsey and Assistant Stephens are trying to undermine and destroy the contentions contained in the motion already on file, Attorneys Rosser, Arnold and Haas, for the defense, will continue their hunt for new evidence by which they hope to show that Frank did not have a fair trial. It is said that his quest for additional evidence of prejudice on the part of the jury will extend to New York and to other portions of the country.

Practically every possible point was covered by the defense in the numerous affidavits and depositions by Frank's attorneys. Some of the affidavits asserted that cheering and anti-Frank demonstrations were perfectly audible in the courtroom and could easily have been heard by the jury; others cited certain incidents which the defense declares proves that the jury was not properly guarded, and still others attack Jurors Henslee and Johenning, declaring that they frequently expressed their conviction of Frank's guilt before the trial.

The depositions regarding the cheering and demonstrations and charging the jurors talked to certain people during the progress of the trial were made by H. C. Loevenhart, Mrs. J. G. Loevenhart, Miss Miriam Loevenhart, S. Aron, Mack Farkas, R. L. Gremer, J. J. Nunnally, W. L. Picker, J. A. Lehman, Samuel Boorstin, Mrs. A Shurman, Sampson Kay, B. M. Kay, Miss Martha Kay, Charles G. Moore, W. B. Cate, J. H. G. Cochran and H. G. Williams.

Eight affidavits alleging that Jurors Henslee and Johenning made remarks showing prejudice against Frank were filed. They were made by C. P. Stough, of Atlanta; John M. Holmes, Shi Gray and S. M. Johnston, of Sparta; R. L. Gremer and Mack Farkas, of Albany; Julian A. Lehman and Sam Aaron, of Atlanta. These affidavits relate in detail conservations and discussions of the Frank case in which Henslee and Johenning are alleged to have taken part. Henslee is charged in an affidavit by Samuel Aaron with having declared at the Elks' Club in Atlanta two days after Frank was indicted that "I am glad they indicted the ---Jew! They ought to take him out and lynch him, and if I get on the jury I will hang that Jew sure!"

Johenning is charged by Mrs. J. G. Loevenhart, Miss Miriam Loevenhart and H. C. Loevenhart with having expressed "forcibly and positively" his opinion that Frank was guilty. Juror Henslee is charged also with having shown prejudice against Frank in conversations of Albany, Ga., and Sparta, Ga., before he was selected for the jury.

Henslee, in an interview given out last Friday, declared that the eight affidavits filed against him are a tissue of lies from beginning to end. He denies expressing his views on the Frank case and probably will embody his statements of innocence in an affidavit for the use of Solicitor Dorsey.

Attorneys for the defense have announced that in the event that Judge L. S. denies the motion for a new trial and again sentences Frank to be hanged, the case will be carried at once to the Supreme Court of Georgia. In the event of an unfavorable decision from that tribunal it is likely that the case will be appealed to the Supreme Court of the United States on some technicality of law that will insure a hearing.

Frank was originally sentenced to hang on October 10, but the motion for a new trial and the prospect of an immediate appeal to the Supreme Court act as a stay of sentence indefinitely.