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Reading Time: 9 minutes [1607 words]

Atlanta Georgian
July 31st, 1913

By JAMES B. NEVIN.

Poor John Black!

With this unwitting assistance of the Solicitor General and the assistance of Luther Rosser, he furnished all the "punch" there was in Wednesday's story of the Frank trial.

Black evidently was undertaking to tell the truth, and was unwilling to tell more or less than the truth, but that didn't help matters much, so far as the State was concerned.

When Solicitor Dorsey exclaimed "plant!"—which means nothing more than "faked" or "framed up" evidence for the benefit of the defense—I glanced rapidly at Rosser.

I saw precisely what I expected to see—a momentary flicker of a smile about the lips and eyes of the man, an almost immediate lightening of the lips and narrowing of the eyes, and then a quick return of the habitual ferocious frown.

I knew Dorsey had put his foot in it—put it right in, away up over the ankle, and I also knew that getting that foot back to solid ground again was going to be an undertaking pregnant with extreme difficulty and danger.

State Balloon Goes Up.

The Solicitor was fretted when he exclaimed "plant"—thereby accusing the defense of rankly unfair and unpardonable methods of establishing Frank's innocence.

And right then and there up went the state's balloon, and it hasn't come down yet!

If there is one thing, in all, this world Luther Rosser loves better than anything else he knows of, it is an adversary in the courtroom who hollers "plant," and things like that—particularly when said adversary is mad!

When Mr. Dorsey on Wednesday, in a moment of forgetfulness and vexation, exclaimed "plant," it was meat and bread and pie and cakes and beer and skittles to Luther Rosser!

Right then, I would much have preferred being a high private in the ranks of the Bulgarian army than John Black!

The Solicitor handed Mr. Rosser the very club Mr. Rosser was laying for, and wherewith the said Mr. Rosser proceeded to pound poor, unoffending John Black to smithereens!

In no conceivable way did Black's responses justify the Solicitor's passionate outbursts.

Witness Goes Far Adrift.

On the contrary, it served to confuse and befuddle the witness, to send him far at sea.

After that he contradicted himself, failed to remember, became hazy and evidently worried and distressed.

He had been shot mortally from an unexpected quarter, and he soon realized that Luther Z. Rosser was determined to finish the job—and finish it he did!

As for the rest of the day and the beginning of this day—

Court officials have settled themselves down in full expectation of a long siege in the Frank trial.

So far, the progress of the case has been, in the main, commonplace in the extreme, and bewildering only when spectators have considered the thousand and one questions asked, and the always inevitable interposition of objections.

The thing the average person in the audience does not understand, however, is that in all that seemingly interminable objecting and wrangling there is, at least upon the part of the defense, a far-reaching purpose the mere mention of which will serve to illustrate its importance.

Effect of One Little Error.

In murder cases the defense has the right, in the event the battle goes against it, to move for a new trial upon assignment of judicial error in the first trial. If a new trial be refused by the trial judge, the defense may appeal to the highest court of review in the State, and if that court finds error to have been committed on the trial of the case, it will remand the entire proceeding back to the court of original jurisdiction for correction of the error, which means, of course, for another trial.

Then the case will begin all over again, exactly as if it never had been tried at all.

The State, on the other hand, has no such right as that—if it loses it for all time. Frank, save of his own motion, never can be tried a second time for the killing of little Mary Phagan.

The more rulings of the defense, therefore, calls upon the trial judge to make the more chances there are that error may creep in—and one little assignment of error sustained by the court of review would serve to reverse the entire judgment, and send the cake back for another trial.

State Must Grin and Bear.

In insisting that the case be held strictly within the legal rules, which a trial judge never can be absolutely sure of doing, the defense throws an anchor to windward in case of defeat—and the State can do nothing but grin grimly, and bear it.

The big battle Wednesday to get the diagram of the pencil factory, containing as it did a red-lined indication of the State's theory of the crime, before the jury had, as will readily be seen, a tremendous significance—and although Judge Roan let it go in, it went in over the bitter and carefully recorded protest of the defense, and in case Frank should lose his fight now, the admission of the diagram doubtless will be assigned as error on original trial.

The State, of course, can not take advantage of its own errors, but Dorsey can hope to obtain nothing more than present advantage by combating them—hence the defense may cut in all sorts of directions, with the burden of proof on the State and the presumption of innocence always with the defendant at bar, and the State may whistle for consolation.

It makes the trial rather uphill pulling for the State, therefore, however much one may think it otherwise.

If Dorsey wins a point, it may avail him something on the present trial, but it will get him nothing eventually, in case he is forced to go to the higher court. The Solicitor has one long, straight shot for victory—and no more.

The defense, on the contrary, is not nearly whipped if it loses its present fight.

Defense Seems to Have Shade.

If there has been any advantage gained by either side thus far, it has been gained, I should say, by the defense.

Nothing necessarily damaging has yet been set up agains Frank. Indeed, much of the evidence drawn out seems almost childish in its meaninglessness.

Rogers testified that Frank was "nervous" when he (Rogers) saw him Sunday morning, April 27, and that he continued "nervous" for some time thereafter—although Rogers never saw him before, and had no way of comparing his conduct then with his general conduct.

But if Frank was "nervous," does the State seek to establish the presumption against him therefore that his "nervousness" was occasioned by the thought of little Mary Phagan's dead body there in the cellar, and Frank responsible for it?

Maybe so—but then—

Rogers swore almost in the same breath that Frank, looking up the record of Mary Phagan after the party reached the factory, deliberately set the combination on the office safe, opened it the very first time, without excitement or unusual circumstances of any sort.

Does the State intend to establish the presumption here that Frank, notwithstanding the weight of guilt upon his soul, was diabolically cool and deliberate in his movements, as indicated by the safe incident?

What Is State's Purpose?

Why not that presumption as rationally as the other?

Which thing does the State intend the jury shall believe from Rogers'—its own witness—testimony?

Fiddlesticks! What IS the State driving at, anyway?

Maybe we shall find out eventually!

Again, when Grace Hix was placed on the stand—and she was the State's witness, remember—she testified on cross-examination that Frank had only spoken to her three or four times during her five years' service in the pencil factory; that he talked to the girl employees very seldom, and that she had never known him to address Mary Phagan at all.

The very pretty young girl answered the questions given her in a straightforward way—evidently she was seeking to speak only the truth.

So, too, Rogers had the appearance of sincerity—and what he said, whether significant or of small importance, apparently concerned him not at all.

Therefore since the State seemingly made so little of either of these witnesses, although they were offered as the State's witnesses and not the defense's, prompts me to say that the advantage falling to either side because of their introduction fell, really, to the defense.

What Has State Shown?

What, frankly, has the State established thus far?

That Mary Phagan is dead; that she probably was murdered; that the place of the murder was Fulton County, and the date of it April 26.

As a matter of fact, nothing much has been developed that has not been public property for weeks—some of it for months.

There is a feeling, growing more fixed every day, I think, that the State if it hopes to win, must set up something more than it has yet made public.

If the State has some big cards up its sleeve, if it is prepared to surprise the defense, and many people think it has the first and will do the second, then the case yet is in its infancy and the real charge against Frank still is to be made out.

If the State has no unrevealed evidence and is NOT prepared to strike the defense heavy and unanticipated blows, it is but the simple and honest truth to say here and now that the feeling, vague and elusive enough, but unmistakably there, that acquittal eventually will come to Frank and will steadily grow and develop as the days run by and the monotonous trial proceeds.

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