Wednesday, 18th February 1914: Leo M. Frank Has Not Lost All Hope, Counsel Will Make Vigorous Fight To Save The Life Of Their Client, The Atlanta Constitution

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Loses in Supreme

Court

LEO FRANK

Frank's Attorneys Preparing for New Battle May Appeal to Federal Courts, or Make Extraordinary Motion.

CONVICTED

MAN STOICAL

WHEN HE HEARS NEWS;

MAKES NO STATEMENT

Trial

Judge's Remarks No

Ground for New Trial,

Holds High Court Per-

version Evidence by Con-

ley Admissible.

Leo M. Frank denied by the Supreme court a new trial for the

murder of Mary Phagan, now faces one of three final recourses:

First, motion for a re-hearing before the court which handed

down yesterday's decision;

Second, an extraordinary motion for new trial before the

superior court, in which he was originally arraigned, on a basis of newly found

evidence:

Third, an appeal to the supreme court of the United States on

the grounds that he was technically deprived of constitutional rights during

his first trial.

He can invoke all three, in which event, it is not likely the

case will finally end within less than a year's time.

The defense is seeking to extract the weaknesses of the

affirmative opinion and the strength of the dissenting one to present both in a

new fight for a new trial, which is to be waged in either the same supreme

court in which the sustaining verdict was handed down or in the federal supreme

court, America's ultimate tribunal.

No fixed plans have been made by Attorneys Luther Rosser and

Ruben Arnold, the convicted man's counsel for further attack. Both stated

Tuesday afternoon that their ideas were indefinite, but that they would never

cease fighting.

Frank Still Calm.

In his cell in the Tower Frank maintained characteristic

calmness and composure throughout the day. In the afternoon a barber came and

clipped his hair and shaved him. An hour later, he exercised on the dumbells,

which has become a daily practice since his long imprisonment. To a jail

attache who has entr e to his cage Frank is reported as having said:

"The truth will finally out. It can't be pinned down forever.

It will take time maybe an age, but it will eventually come, and I will then be

an exonerated man. I am not worrying because I'm depending on truth. In time

the world will know the guilty man and I will be cleared. It will take time,

but time will do it."

His wife, Mrs. Lucille Frank staying at the home of

relatives, Mr. and Mrs. A. E. Marcus, said over the telephone to a Constitution

Reporter last night:

Wife Was Surprised.

"Certainly the decision came as a

surprise. We are only waiting for the truth to claim its own. My husband is in

good health and he is bearing up well. I am too nervous and unstrung to talk

much. Later, maybe, I will talk more and have many things to say. But not tonight."

Her voice had a trace of tears and

there was a sob in her throat. She had undergone a hard day. Twice she had

visited the cell of her husband. The latter visited lasted until late at night,

when she departed reluctantly. Frank was besieged by friends all during the

day, many remaining until as late as 10:30 o'clock at night, when he was forced

to retire.

Frank's defense. It is widely circ-

PAGE 2, COLUMN 1

ulated, will

rely chiefly upon the dissenting opinion of Chief Justice Fish and Associate

Justice Beck, of the supreme bench, in their new and final battle for the

client. The sentiment of these judges was based largely upon the theory that

admission of the testimony of Jim Conley, the negro star witness, and of C. B.

Dalton, was improper.

The stories of Conley and Dalton

related to the alleged perversion of the defendant. The contention of the

conflicting opinion, however, presented by Justices Hill, Atkinson, Evans and

Lumpkin, was that in Frank's particular case and in the circumstances of the

particular murder of which he was accused, it was perfectly legal to introduce

evidence pertaining to his conduct with women other than the girl with whose

murder he was charged.

The opinion of the assenting justices

is briefly and tersely put in the following paragraph of their decision's final

headnote:

"The evidence supports the verdict, and

there was no abuse of discretion in refusing a new trial."

It was also held that the refusal of

Judge L. S. Roan, the trial justice, to grant a new trial on grounds of

disorder in the courtroom was proper, and furthermore, that the supreme court

did not consider oral expressions of the trial justice which might be rendered

at the time of denial of motion for new trial. This latter ruling related to the

famous remarks of Judge Roan in which he declared his indecision was to either

the guilt or innocence of Leo Frank.

"I fully expected the decision," stated

Solicitor General Hugh M. Dorsey. "Frank had a fair trial, and an impartial

one. He was found guilty, and guilty I believed him to be. Had I not believed

him guilty throughout the case, I would never have prosecuted him."

Frank to Be Re-Sentenced.

The solicitor will soon take the

necessary action to have Frank re-sentenced. This will be done at any early

date.

"I have no desire to hasten affairs,"

said Dorsey. "I will waste no time, however."

In view of the dissenting opinion of

the two supreme justices, it is believed counsel for the defense will seek a

new hearing before the supreme court. A thorough survey of both opinions will

decide. In this case, they will endeavor to have the case sent again to the

supreme court. This would be their only hope.

Charges of technical failure would be

the basis of their second presentation in event they follow such course. To put

it before the supreme court directly would mean on the grounds of purely the

dissenting voices in the decision handed down Tuesday. Similar instances are in

the annals of the history of Georgia courts.

It is also expected that the defense

will sift the evidence of each of the three instances in which their client's

case hung in the scales the original trial, the hearing before Judge Roan for a

new trial and the hearing before the supreme court in an effort to find

technical points that will warrant its introduction to the government supreme

court.

In this case, it is said, allegations

will be made that Frank was deprived of constitutional rights. This is stated

to be the only federal point which might involve a case similar to that of Frank's

trial. The Frank case before the federal court would require months and months.

A motion extraordinary could be made on

the grounds of newly-discovered evidence. This would have to be carried out

before the trial court, over which Judge Ben Hill presides since Judge Roan's

departure. In this instance the case could only be forwarded to the supreme

court, in which it met defeat Tuesday.

Hope to Dissenting Opinion.

"The strongest argument, I think that could be made in our

behalf," Luther Rosser said Tuesday afternoon, "is contained in the dissenting

opinion of Chief Justice Fish and Justice Beck."

By which it was inferred, but not confirmed, that the plan of

action for the fight would be a renewal of the argument before the supreme

court. A re-argument of this nature would consume practically the same amount

of time required for the original argument and decision. Such a motion would

necessarily have to be on the basis that the court failed to decide some

material point presented in the bill of 103 separate objections.

In voicing their sentiment for granting a new trial, Justices

Fish and Becks said that the evidence of Conley and Dalton was inadmissible, in

that it related mostly to Frank's alleged conduct with women other than Mary

Phagan.

They held that an accused person cannot be expected to face

in court accusations other than those contained in the bill of indictment. Men

untrained in legal processes of reasoning, as jurors, for instance, are liable

to be influenced greatly, they held, by such irrelevant testimony.

"They conclude," the opinion reads, "that persons guilty of

this crime might be equally as guilty of that."

The remitter of the supreme court the legal form of the

decision will reach the superior court within a period not less than ten days.

Frank can then be brought before Judge Hill for resentence. Not less than

twenty days and not more than sixty can expire between sentence and execution.

Jim Conley's trial, by the decision of the supreme court, is

made a certainty for the week of February 23. He will be arraigned on a charge

of accessory after the fact. He declared to reporters yesterday that he had

felt confident all the while that the supreme court would affirm the lower

tribunal's verdict.

"They've got the right man," he declared, "and he knows it."

Dorsey's Statement.

Solicitor Hugh Dorsey expressed no surprise at the decision

of the supreme court.

"Frank had a perfectly fair trial. As near as it is possible

to demonstrate a thing of that kind mathematically, he was proved guilty."

"From the very first suspicion pointed to him. The detectives

suspected him from the very first. I was not satisfied with mere suspicions and

went into the case from every angle. I wanted to find the man who was guilty;

it made no difference to me who he was. I became convinced of Frank's guilt and

I am convinced of it today."

"He had the benefit of the best legal talent money could buy.

He had position and influential friends to serve him. The jury thought him

guilty and said so; the trial judge thought he had been given a fair trial and

refused to grant him a new one. The supreme court has now stated that the lower

court did not err."

Headnotes of Decision.

The headnotes of the decision in the

Frank case read as follows:

"On the trial of one accused of the

murder of a young girl in a factory building of which he was superintendent

where circumstantial evidence is relied upon largely if not wholly to prove the

defendant's guilt it is not sufficient cause for a new trial under the special

facts of the case that the state was permitted to prove the demeanor of the

night watchman of the factory and also that of the accused on the morning after

the discovery of the body."

"2. A young girl was killed in a pencil

factory on Saturday afternoon, which was also a public holiday, when the

factory was not in operation. The evidence showed that she went to the office

of the superintendent for her pay, and no witness testified to having seen her

alive thereafter. There was other evidence from which the jury might infer that

the killing occurred in a room on the same floor where the office of the

superintendent was situated. An employee of the factory, who was present in the

building testified that on that morning the accused had said to him that he

desired the witness to watch for him as the witness had been doing the rest of

the Saturdays,' or other Saturdays,' that he did watch at the door when the

girl went up to the office of the accused; that he heard her scream; that

subsequently the accused called to him to assist in removing the body of the

deceased.

Court Did Not Err.

"He also testified to certain signals

given by the accused to him while watching. Held, that it was competent to show

by the witness how he had been watching for the accused on previous Saturdays,

and to explain the system of such alleged signals employed by the accused, and

the reference thereto by the accused."

"(a). The same witness testified that,

after the girl had gone to the office of the accused, he had heard footsteps going

in the direction of the place where he first saw the body, and after hearing

the scream and the signal from the accused, the latter told the witness that he

wanted to be with a little girl,' and she refused him, and he struck her and

guessed he struck her too hard, and she fell and hit her head against

something, and he did not know how badly she was hurt. Witness then said that

the accused added: Of course, you know I ain't built like other men.' From the

condition of the body, it might have been inferred that the person who did the

killing sought to have a sexual relation, natural or unnatural, with the

deceased, and that the blow did not cause death, but it was brought about by

choking the deceased with a cord. Held, that it was relevant to explain the

expression above quoted to showing previous transactions of the accused, known

to him and to witness, which indicated that his conduct in sexual matters

differed from that of other men."

"(b). As a general rule evidence of the

commission of one crime is not admissible upon a trial for another, where the

sole purpose is to show that the defendant has been guilty of other crimes, and

would, therefore, be more liable to commit the offense charged; but, if the

evidence is material and relevant to the issue on trial it is not admissible

because it may also tend to establish the defendant's guilt of a crime other

than the one charged."

"(c.). Under the rule just announced,

the evidence of the witness above mentioned, which it was sought to withdraw

from the jury, and also the evidence of another witness, which corroborated him

in regard to other improper transactions with women, in which the accused took

part, occurring at the same place, not a great while before the homicide, and

in regard to the watching by the first witness, while lascivious practices were

being engaged in at that place, and in regard to compensating him thereafter,

was admissible as throwing light upon the motive of the accused and also as

indicating his design or schemes in regard to his practices at that place, in

connection with which the evidence authorized the jury to find that the murder

occurred, and tending to show the identity of the criminal."

"Paragraph 3. Under the facts of the

case it was irrelevant to show as to circumstances indicating a consciousness

of guilt that the defendant who had manifested interest in ferreting out the

perpetrator of the homicide for the commission of which he was subsequently

indicted and had taken part in the employment of detectives for that purpose

and had interviewed one person suspected and had interviewed one person

suspected and refused an interview to in indicating that the defendant was

aware of the witness' knowledge of the defendant's guilt, which such interview

was proposed by detectives, including the one he had employed.

"Paragraph 4. Where the testimony of a

witness is competent, he may be permitted to give the details of experiments on

which his testimony is based."

Health Board Controversy.

"Paragraph 5. The details of a

controversy between the former president and secretary of the state board of

health in their official relations was foreign to any issue involved in the

trial of the case. The testimony was provoked by a question propounded by

counsel for the defense who directed examination of his witnesses. The

testimony did not tend to obscure any issue in the case or prejudice, the

defendant, and the reception in evidence of the excerpt from the minutes of the

state board of health dealing with such controversy is no ground for a new

trial."

"6. Where it was material to show at

what time the girl who was killed arrived at the factory which the homicide

occurred, and after this point the contentions of the state and the accused

differed, as well as in regard to the point at which she left the street car on

which she came from her home, and the defendant introduced evidence to show the

scheduled time at which the car was due to arrive at a certain point where it

was claimed on behalf of the state that she left it, and the time it would

require for the car to go from that point to another at which the accused

claimed that the girl alighted, as we well as the testimony of certain

witnesses that the car in question reached the first point at the time fixed by

the schedule (specifying it), and one of them testified on cross-examination

that we never arrive in advance of schedule time;' and where the defendant

also introduced other evidence as to schedules of the street cars on another

route in the effort to account for the defendant's presence at other places at

such times during the day, it was competent for the solicitor general to

thoroughly sift the witnesses introduced by the accused on cross-examination,

and also to introduce evidence in rebuttal tending to show, in addition to the

fact that the testimony of a witness for the accused was inexact in regard to

the schedule , that in fact the car on the line travelled by the girl in going

from her home to the factory frequently arrived at the point above mentioned

several minutes in advance of schedule time."

Impeachment of Witnesses.

"(a). If any respect the

cross-examination or the evidence introduced in rebuttal was not strictly

within the proper range of such evidence, it was not of such a character as to

require a reversal."

"7. The testimony referred to in the

seventh division of the opinion was relevant, and properly received by the

court."

"8. A witness testified to matters

material to the defense. She was asked if her wages had not been increased by

the parent of the accused's wife and if a gift had not been made to her by the

wife of the accused, and answered in the negative. Upon laying the proper

foundation for impeachment, it was competent to introduce her own affidavit and

the testimony of another witness to show that she had made statements

contradictory of her testimony stated above."

"9. On the trial of one for the murder

of a female, where the testimony tended to show that the garments of the victim

of the homicide were torn and her. . . organs had suffered. . .violence. . .

.and the defendant introduced a witness to establish his good character. It was

competent on cross-examination to ask such witness if he had not heard of certain

lascivious acts of the defendant with other females."

"10. Likewise, under the circumstances

referred to, the preceding note, where the defendant introduced evidence of his

good character, the prosecution could reply by offering proof of his general

bad character for lasciviousness."

"11. Where the court instructs the jury

under degree and strength of circumstantial evidences essential to a

conviction, in the language of the statue, it is generally not ground for a new

trial that he declines to give a written request abstractly elaborating this

principle of evidence."

Regarding Disorder in Court.

"(a).

The requests set out in grounds 60, 61 and 62 of the motion for a new

trial are not so accurate or appropriate as concrete application of the principle

involved as to render the failure to give them cause for a new trial."

"12. As pointed out in the twelfth

division of the opinion, the request to charge as therein set out invaded the

province of the jury, and was properly refused."

"13. Where a defendant puts his character

in issue, and the prosecution offers rebuttal evidence, tending to show that his

general character in respect to a trait involved in the case is bad, failure to

cross-examine the rebutting witnesses is legitimate ground for argument.

Likewise, counsel for the state may discuss any feature of the defendant's

statement."

"14. In view of the reference which had

been made by one of counsel for the accused to the circumstances of a

celebrated criminal case, occurring in California, and of his concession of the

right of the solicitor general to likewise discuss the facts of that case in

regard to it, no objection was raised to the reading of a telegram from the

district attorney in San Francisco, there was no error in allowing the solicitor

general to proceed with his argument on that subject, without reading such

telegram or letter."

"(a). Nor did it furnish cause for

granting a new trial that the presiding judge did not charge to the effect that

the facts of the case above mentioned and other celebrated cases referred to by

the solicitor general in his argument should have no influence upon the jury in

making their verdict, and that they should try this case upon its own facts and

the evidence introduced therein, it not appearing that any ruling was invoked

in regard to the argument of cases other than that above mentioned, or that any

written request was made invoking a charge of the character indicated.

Medical Witnesses.

"15. Whether or not the argument of the

solicitor general, seeking to deduce an inference from the examination on

behalf of the accused of certain medical witnesses and from their testimony,

that they must have been summoned because of being family physicians and

well-known to some of the members of the jury, was illogical or well-founded,

under the colloquy which was had by counsel among themselves and with the

court, and the statements solicitor general or stop him from making such

argument will not, under the face of the case, require a reversal."

"16. The alleged disorder in the court

room during the progress of the trial was not of such character as to impugn

the fairness of the trial, or furnish sufficient grounds for reversing a

judgement refusing a new trial."

"(a.) The court was authorized from the

evidence to find that certain cheering or applause outside of the court room,

referred to in the sixteenth division of the opinion, was not heard by the

jury, and that they did not have knowledge of the same until after the verdict

was returned."

"17. Where a verdict is received in

open court, and a poll of the jury demanded, and while the poll is being taken

loud cheering from persons on the outside is heard, and which is continued

until after the poll is concluded, and where from the evidence the court is authorized

to find that the jury was not influenced to render other than true answers to

the questions propounded, the circumstances of the cheering on the outside is

not a significant ground to require a new trial."

Judge Roan's Remarks.

"18. On conflicting evidence the judge

on the hearing of the motion for a new trial, acting as trior, did not err in

holding that the jurors whose impartiality was attacked were competent."

"19. When the order overruling a motion

for new trial contains nothing to indicate that the judge was dissatisfied with

the verdict, or that he failed to exercise the discretion required of him by

law, the supreme court will not, in determining whether the judge has exercised

such discretion, consider oral remarks made by him pending the disposition of

the motion."

"20. The evidence supports the verdict,

and there was no abuse of discretion in refusing a new trial."

No Ground for Reversal.

In the main opinion of the four

justices upholding the lower court, there occurs the following comment on that

ground of the motion for a new trial which cited Judge Roan's remarks at the

time he denied that motion in the lower court.

"The bill of exceptions recites that

the judge orally stated that the jury had found the defendant guilty; that he,

the judge, had thought about this case more than any other he had ever tried;

that he was not certain of the defendant's guilt; that with all the thought he

has put on this case he was not thoroughly convinced whether Frank was guilty

or innocent, but that he did not have to be convinced; that the jury was

convinced; that there was no room to doubt that; that he felt it his duty to

order that the motion for a new trial be overruled.'"

"It is insisted that the remarks made

by the judge in denying the new trial indicated judicial disapproval of the

verdict."

"We do not think so. The jury found the

accused guilty. The court was called upon to determine whether under the record

the defendant should be granted a new trail. He refused it, and the rule in

such cases is that even if the court should consider a case weak, yet, if he

overrules the motion for a new trial, one ground of which is that the verdict

is contrary to law and evidence, his legal judgement expressed in overruling

the motion will control; and if there is sufficient evidence to support the

verdict this court will not interfere because of the judge's oral expression as

to his opinion. Bray v. State, 69 Ga., 763 (4); Sav., Fla. And Western Ry. Co.

v. Steinhouser, 121 Ga., (3)."

Evidence Sufficient to Uphold.

The last paragraph of the main opinion

is as follows:

"The record in this case is voluminous.

We have attempted to group the various assignments of error so as to bring the

opinion within reasonable grounds. Some of the points are deemed of minor

importance, not amounting to error, and some of them were not referred to in

the briefs, and therefore no specific reference is made to them. We have given

careful consideration to the evidence, and we believe that the same is sufficient

to uphold the verdict; and, as no substantial error was committed in the trial

of the case, the discretion of the court in refusing a new trial will not be

disturbed."

"Judgement affirmed. All the justices

concur, except Fish, C. J., and Beck. J., dissenting."

The main body of the opinion commented

as follows on the ground alleged in the motion for new trial that the court had

erred in permitting Solicitor General Dorsey in his argument to comment on the

failure of Mrs. Frank to visit her husband right after he was accused of the

murder:

"Exception was also taken to the

court's permitting the solicitor general in his argument to comment upon the

failure of counsel for the defendant to cross-examine certain witnesses offered

by the state; and also to comment upon the failure of the wife of the accused

to visit him in jail. What has just been said (overruling another ground)

covers the first of these complaints."

"As to the latter, the accused in his

statement had referred to the failure of his wife to visit him soon after his

incarceration, and had given an explanation of it; and the solicitor had a

right to comment on the statement."

Prejudice of Two Jurors.

Paragraph 18 of the main opinion

referred to bias alleged against the two jurors, Johenning and Henslee.

"The 73d ground of the motion for a new

trial is Because the Juror A. H. Henslee was not a fair and impartial juror,

but prejudiced against the defendant when he was selected as a juror, and

previously thereto had expressed a decided opinion as to the guilt of the

defendant, and when selected as a juror was biased against the defendant in

favor of the state."

"The movant submitted evidence tending

to show that previous to the trial, this particular juror had made certain

expressions to different people, indicating a strong bias and prejudice against

the accused. The juror denied under oath having made any statement in

substance, that he was biased and prejudiced against the accused, and on the

other hand positively affirmed that he was unprejudiced against the accused,

and that his mind was perfectly impartial during the trial. The rule is clear

that when the impartiality of a juror is challenged on a motion for a new

trial, the judge becomes a trior as to the issue made and his judgement will

not be disturbed unless it discretion. Wall v. State, 126 Ga., 549 (4). On the

conflicting evidence there was no abuse of discretion in this case."

"Another juror, Mr. Johenning, was

attacked, but under the conflicting evidence we think the court did not abuse

his discretion in holding that he was not prejudiced or biased."

Practically

without exception, Solicitor Dorsey was upheld on every point by the supreme

court.