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Atlanta Georgian
August 10th, 1913

Issue Firmly Drawn Between Two Men Defense Starting to Mould Its Case

Theory That Negro Attacked Mary Phagan With Motive of Robbing Her Will Be Shown; Two Charges Against Accused Must Be Refuted

By AN OLD POLICE REPORTER.

The second week of the trial of Leo Frank, charged with the murder of Mary Phagan in the National Pencil Factory on the afternoon of April 26, came to a close Saturday noon.

The State's case has been entirely made up in its primary aspects, and the defense has gone into its story of the great crime sufficiently to make clear both its theory and probable line of pleading.

The public, as the case has progressed, has been swayed this way and that, and to-day the remarkable mystery of Mary Phagan's untimely and tragic end remains, in hundreds of minds, quite as much of a mystery as ever.

The Battle Is a See-Saw.

The State has had its good days and its bad days, and the defense has met the same fate. At times things have seemed dismally dark and gloomy for Frank, while at other times the clouds apparently have lifted from about him decidedly.

Guilt Will Be Fixed On One of Two Men

This much has been made clear:

Either Leo Frank will be shown to be responsible for the death of Mary Phagan, or Jim Conley will.

The one is the heart and soul of the State's contention, and the other is the heart and soul of the defense's contention.

Frank is battling not only to clear himself but to convict Conley.

Conley is battling not only to clear himself, but to convict Frank.

The only difference is that Conley, although not yet indicated, expects to be convicted as an accessory after the fact of the murder, in any event, whereas Frank, already indicted, expects to come absolutely clear and free of all possible connections with the crime.

One of Good Name; Other's Past Shady.

The one has a heretofore good name to restore in all of its unblemished integrity, the other has merely his present reputation for criminal inclination to preserve against sinister enlargement.

The issue has been sharply and indelibly drawn—it is either Leo Frank's life for Mary Phagan's, or it is Jim Conley's.

The States has shown, or has endeavored to show the following things:

THAT Frank, shortly after noon on April 26, and before five minutes past noon, lured Mary Phagan, for an immoral purpose, to the rear of the second floor of the National Pencil Factory, and there, because she would not yield to his desires and demands, he knocked her down and immediately thereafter strangled her to death with a small cord, about one-eighth of an inch in thickness.

THAT after strangling her, Frank remained with her dead body until after a girl caller in his office had departed, when he tiptoed to the front of the floor whereupon the murder had been consummated, and secured the help of a negro sweeper, Jim Conley, employed about the place, to dispose of the body.

Disposition of the Body as Shown by State's Evidence

THAT Conley, under the direction of Frank, wrapped the dead body in a piece of heavy cloth, carried it to the elevator, thence on the elevator to the basement, where it was placed in an obscure corner in the rear, later to be found by Newt Lee, a negro watchman, generally held guiltless of direct connection with the crime itself.

THAT Frank, after hiding the body, with Conley's assistance, then induced Conley to write and place beside the dead girl certain illiterate notes fixing the crime, in so far as they might, upon some other person than either Frank or Conley, and that Frank for Conley's services, paid him the sum of $2.50, but not until […]

FRANK AND CONLEY BATTLING EACH OTHER FOR THEIR LIVES Guilt of Slaying Little Mary Phagan Will Be Fixed Upon One of Two as Issue Now Is Drawn

DEFENSE BEGINS BUILDING ITS THEORY OF TRAGEDY

[…] he had first paid him $200, which was withdrawn under promise to restore that sum later.

THAT Frank had an understanding with Conley, whereby Conley was to return to the factory later in the afternoon on Saturday and burn the body in the basement furnace, but that Conley went to sleep in the afternoon and neglected to perform this service.

THAT Frank, called to the factory early in the morning of Sunday, April 27, displaying great nervousness, and while on his way to the factory without having been informed of the dead, girl's identity, declined, or at least failed and neglected, to look upon her features at the undertaker's, notwithstanding the fact that he later admitted her identity without having seen her dead.

THAT at the factory, at the place of the crime, his nervousness continued, and that next morning (Monday), when called to the police station for further questioning, he had secured counsel to defend him, notwithstanding the fact that he then had not been placed under arrest.

THAT after having been placed under arrest and indicted for the murder, he persistently refused to meet his chief accuser, Jim Conley, face to face, of discuss any feature of the charges lodged against him.

THAT in addition to the crime of murder, as set forth in the indictment, Frank is a dissolute character, practicing the most depraved and perverted crimes with persons of loose morals, and that Jim Conley, on more than one occasion, acted as "lookout" for Frank on the first floor of the factory, while unspeakable and unmentionable things were being enacted above.

Jim Conley Is the State's Principal And All-Important Witness.

The State, in setting up the foregoing allegations, summoned as its principal and all-important witness, Jim Conley, who already had made public affidavits to all of the charges set forth, except the one of perversion and the exact time of the crime charged.

Conley, after four or five changed statements theretofore made, set up in his final statement on the stand many other seemingly minor details not contained in any previous statement.

The foregoing is the State's case in completed form, except that it yet will have the right to produce witnesses in rebuttal of the defense's witnesses; the defense, in its turn, having the right to a further rebuttal of the State's rebuttal.

The defense has contended, or will contend:

THAT Conley's story is a tissue of frightful lies from start to finish, and that he himself really committed the crime charged against Frank, and that the defense will so demonstrate.

THAT Mary Phagan was not killed as early as 12:05 on the afternoon of April 26, but was, as a matter of fact, killed at least fifteen minutes later than that, if, as a matter of still further fact, she was not disabled hopelessly about that time, and actually killed even later.

THAT if she was not killed previous to 12:05, as set forth, by the State, that contention being uncompromisingly claimed by the State's own witnesses—Jim Conley and Monteen Stover—then Conley's story is impossible and absurd, and Monteen Stover's evidence entirely negligible.

THAT Frank did not lure Mary Phagan to the rear of the second floor, or to any other place, for any purpose whatever, and that she was only on the second floor sufficiently long to get her pay from the hands of Frank, and that she immediately thereafter left the second floor, going down to the first floor to meet her death at the hands of Conley.

Defense Holds Frank Had Nothing To Do With the Death Notes.

THAT Frank never asked for or received the assistance of Jim Conley in disposing of the body of Mary Phagan, because he was in utter and entire ignorance of the murder until apprised of it Sunday morning.

THAT Frank had nothing whatever to do with the framing of the notes found beside the dead girl, and that in support of such a charge the State has only the word of Jim Conley, intensely interested in shifting the blame from his own guilty shoulders and on to the shoulders of Frank.

THAT Frank never paid Jim Conley any sum of money for any purpose whatever on Saturday, nor promised him any sum for any purpose whatever, and that Conley's word alone says that he did.

THAT whatever nervousness Frank displayed, if he displayed any unusual or unnatural nervousness at all, was occasioned by the mysterious attitude of the officers notifying him of some unnamed trouble at the pencil factory, and that in support of his approximately normal frame of mind is the fact, proved by the State's own witnesses; that he opened the office safe to look up the record of Mary Phagan, after having acquired knowledge of her identity, without tremor or hesitation whatever, setting the intricate combination easily and opening the safe on the first trial.

THAT his innocence of all guilty knowledge of the crime is further evidenced by his three hours perfectly normal work on his books in the factory on the afternoon of April 26, at which time, if the State's theory holds, Mary Phagan, with Frank's knowledge, then was a corpse in the basement, dead at his murderous hands.

THAT Frank, instead of declining to look upon the face of the dead girl at the undertaker's while on his way to the factory Monday morning, did, as a matter of fact, look upon her face and recognized her.

Frank's Counsel Was Not Sought by Him, the Defense Contends.

THAT Frank had no counsel until after his retention at police headquarters had been publicly made known, and when he was notoriously under suspicion, and that even then counsel was sent to him by some outside friends, and did not come at his invitation or by his direction.

THAT Frank's refusal to meet Jim Conley, his lying accuser, was natural and proper in the circumstances, and that such a course was persisted in by the particular advice of his counsel; that Frank was under no moral or legal obligation to discuss his case with Conley, or with any other witness for the State.

THAT Frank, far from being a dissolute character, is a of man unblemished integrity, happily married; that he never has practiced depraved and perverted crimes, because such things would be and are entirely foreign to his nature; that he never has associated with immoral persons anywhere, at any time; that neither Jim Conley nor any other person ever acted as "lookout" for him for any purpose whatsoever—and that every monstrous and untrue charge or suggestion of immorality and degeneracy rests absolutely and finally upon the unsupported word of Conley, and not otherwise.

THAT there has been no tenable motive assigned to Frank for the murder of Mary Phagan; that the girl was not sexually violated or in any manner lacerated; that Frank had only the most casual acquaintance with her, and that of a perfectly natural business sort, and that he could not have had, and did not have, any reason whatever for desiring her death.

THAT, in truth and reality, the motive prompting the murder of Mary Phagan was robbery upon the part of Conley, and that for the purpose of securing her pittance of money, contained in a mesh purse, he did murder her and concealed her body in the basement.

Theory of Crime as the Defense Holds That Slaying Occurred.

THAT, as a matter of fact, Mary Phagan reached the National Pencil Factory on the afternoon of April 26 about 12:12 or 12:15; that she came up the steps directly to Frank's office, and received her pay for the time due her, in amount $1.20; that she at once departed Frank's office, without comment of any sort, and that Frank never saw her alive thereafter; that going down the steps, with her silver mesh bag in her hand, she had to pass Jim Conley, recently aroused from a drunken doze; that in attempting to get from the foot of the stairs, where Conley was sitting, to the door, some 20 feet way, she had to traverse a gloomy walkway, more than ordinarily gloomy at the time because the day was a legal holiday and the doors were closed, but not locked; that in traversing this walkway her back was toward Conley; that Conley, without money and craving more liquor, saw the unprotected little girl with the enticing silver bag in her hand, and surmising that she had been paid off by Frank upstairs, hit her a violent blow upon her head, snatched her purse from her hand, and at once threw her body into the cellar by way of a nearby open space, for fear of someone coming into the building; that likely the blow first delivered was not sufficient to kill, and that her actual death was hastened, or may have been hastened later in the cellar below, by the means of strangulation, there being always there on abundance of the very cord employed or supposed to have been employed in that act.

THAT after accomplishing his bloody deed Conley escaped by withdrawing the inside staple from the basement back door only a few feet away from the place where the dead girl subsequently was found; and that tracings of Conley during the afternoon of April 26 at various saloons about town show that he spent then an amount of money approximating that which Mary Phagan is supposed to have had in her purse at the time of her murder.

Conley Declared to be Jailbird And Notoriously Dissolute Character.

THAT all of her possessions the purse alone, notwithstanding exhaustive inquiry, never was accounted for until the last day Conley was on the stand, when he stated that Frank had had the purse in his possession just after the murder, and that he had concealed it in his safe. This allegation, the defense points out, is sustained, as are the other most damaging allegations, by Conley's unsupported word entirely.

THAT Conley, the State's main witness, is a notoriously dissolute character, by his own admission seven times a jailbird, many times a liar, even under oath and on the witness stand, and admittedly was "mistaken" in some statements made against Frank; that he did not begin to throw suspicion on Frank until after suspicion began drifting in his (Conley's) direction; that his plea of wishing by his first silent course of conduct to "protect" Frank is not sound, because after he feigned disappointment that Frank did not "get him out of his trouble, as he had promised," and declaring that he, therefore, intended to tell the "whole truth of the murder," he still persisted in his lies and falsifying to the attempted damage of Frank, and found it necessary to issue three conflicting affidavits before he got one he thought might be depended upon to stand up.

THAT Conley began his statements with a lie—to the effect that he could not write—and continued lying steadily thereafter, but frequently canceling one lie in favor of another, as his first lies were shown to be useless and senseless.

THAT Conley in revising his various statements was aided and abetted by various police officials, presumably anxious for the rewards offered for the apprehension and conviction of Mary Phagan's murderer, and that these officers pointed out to Conley the discrepancies as they arose from time to time, and that without this aid Conley's story never could have been made to hold together even as well as it did; that notwithstanding this prejudicing aid, however, Conley's story still is impossible and absurd, and of no account whatever against Frank.

Defense Heavily Equipped to Sustain Every Contention, It Says.

The foregoing, in general, is the theory of the defense, as already set up and as yet to be developed, and along that line it will fight its battle to the end.

The defense is heavily equipped with witnesses to sustain its every contention, and these will be offered, in their order, to break down the contrary theory of the State, as hereinbefore outlined, and upon the relative strength of the two showings depends, of course, the verdict.

Of absorbing interest now is the seeming determination of the defense to put Leo Frank's character frankly and fearlessly in evidence.

In a former article in The Sunday American several weeks ago I predicted that the defense would do this—and the then apparent determination of the defense along that line shows no symptoms of having been deviated from in the slightest.

When Conley made his additional unanticipated attack on Frank's character from the witness stand, it was rather freely predicted about the streets that Frank never would, after that, agree to have his character put in evidence. Under the law, the State can not put the defendant's character in evidence—if it is put in at all, it must be put in by the defendant voluntarily. Once in, however, it may be riddled by the State, if the State is able to riddle it.

The determination, therefore, of the defense to put Frank's character in evidence is being accepted generally as indicating an unfaltering confidence upon the part of the defense that Frank may be able thereby to overcome the terrible and prejudicial charge of degeneracy, as well as the charge of murder, both resting so largely upon Conley, and Conley alone; and it also indicates a belief upon the part of the defense that the State already has done its worst in the matter of attacking Frank's character.

That fact that Frank is now engaged in refuting two charges instead of one makes his case doubly unique in Georgia, as it is contrary to the unbroken theory of the law heretofore.

In Georgia, the courts uniformly have held that a man can not be tried for more than one offense at one time—that is, that he can not be charged with murder, and in the same trial be called to account for another felonious crime.

The charge of degeneracy, however, got into the case without objection, and Frank's lawyers cross-examined the witness making it. The judge, therefore, although a motion was made afterward to strike out this evidence, ruled that it was too late to expunge it, and that it should go in for what it was worth.

Defense Calls More Than Seventy Character Witnesses.

This ruling, while in a way more or less unprecedented, was, in the main, by the public seemingly approved, upon the idea that it was fairer to both the State and the defense that the horrible charge, having been made, be thrashed out.

Should be convicted, it is practically certain that a new trial will be asked on this very point, and it is not at all improbable that Judge Roan will grant it, although this conjecture is purely and absolutely speculative, of course.

The defense has summoned some seventy character witnesses, among whom are more than twoscore female employes of the National Pencil Factory, all of whom will swear, it is said, to the defendant's decent and gentlemanly conduct at all times in their presence and during their varied terms of service in the factory, running from one to five years.

Besides these, a score or more of Atlanta's most prominent business and professional men have been cited to come to court and testify in behalf of Frank's good name.

Rarely before, if ever, has been there as intense interest in a murder trial as there unquestionably as in the Frank case.

The crowds attending the trial have been enormous, the officers finding it necessary every day to turn away hundreds of anxious would-be spectators.

Public sentiment has swung back and forth—to-day inclined to believe Frank may be innocent, to-morrow sternly the reverse.

The jury, sitting there in the courthouse, day after day, has been the objective study of hundreds of real and near analytical minds—and the answer?

Acquittal of Frank Likely Would Bring the Indictment of Conley.

Every fellow answers for himself. The jury is imperturbable, unreadable, almost seemingly indifferent at times, indeed—but always keenly keyed to intense interest, nevertheless!

One might as well undertake to read the riddle of the Sphinx as to read the riddle of the Frank case in the minds of the jury trying it. It looks as if it is a jury well above the average—and that is about the beginning and the end of an intelligent guess as to what it will do.

Judge Roan is as baffling as the rest of the case, too, when it comes to speculating upon what he may or may not think of it all.

He is rated one of the very best Superior Court judges in the State, unusually able, certainly fearless, and agreed to be utterly fair and impartial.

At times, his rulings have seemed to favor the defense, and at other times they have seemed to favor the State; but, withal, the public seems agreed that he is handling the case with an open and judicially just mind.

Speculating as to the outcome of the trial is varied. There are those who can see nothing ahead but conviction, just as there are others who can see nothing but acquittal.

If a ballot could be taken, however, those holding to the idea of a mistrial likely would be found in the majority, for that is the way the fight seems, to many observing minds, to be drifting.

That section of the public generally credited with being calm, poised, and desirous of seeing the right prevail, no matter which way it cuts, apparently has suspended judgment. Extremists pro and con still are talking themselves hoarse about town, however.

The progressing inclination among the people seems to be to let the jury settle it, and then to call that as near right as abstract justice and human ingenuity can make it.

In the event of an acquittal, the case ends. The State has no appeal. It must win on the first round, or it loses for all time.

The defense, on the other hand, if it loses, may move for a new trial, upon proper assignment of error in the first trial. The judge of original jurisdiction passes upon this motion—he may grant it or not, as his discretion directs.

The general policy of judges is to refuse motions for new trials, but it is not an unbroken policy, by any means.

If the new trial motion is denied, the case goes to a court of review—either the Supreme Court or the Court of Appeals. If one error or several be found in the original rulings of the court below, the case will be remanded back for a new trial, the judgment thus having been reversed and set aside.

Trial Judge is Considered Absolutely Fair and Fearless.

Then the case begins all over again, practically as if it never had been tried.

In the event of matters taking that course, Frank hardly could be tried again before next year, 1914, and perhaps not before spring.

If Frank is acquitted, there is hardly a doubt that Jim Conley will be promptly indicted for the murder of Mary Phagan, and brought to trial later.

In the event of Frank's final conviction, Conley will be indicted as an accessory after the fact. This would mean a sentence of not more than three years in the State penitentiary for him.

If Frank is convicted, he can be convicted only of murder—the jury will not be permitted, under the form of the indictment, to find him guilty of a lesser crime.

The judge will have no discretion in sentencing him.

If found guilty, without a recommendation to mercy, he must hang, unless the Governor should subsequently interfere and order Executive clemency.

If he is convicted, and the jury "recommend him to the mercy of the court," the court then will be obliged to send him to prison for life.

The general opinion is that the present trial will run all of this week—that the best to be expected is that the jury may be given the case by Saturday night.

After the evidence all is in, the case still will have to be argued to the jury. It is thought that Judge Roan will take the bridle off in respect of this and both sides will be permitted to go the limit.

Mr. Rosser and Mr. Arnold will consume at least one entire day in argument, and Mr. Dorsey and Mr. Hooper will not take less time.

It is expected that Hooper will open for the State and Dorsey close, and that Rosser will open for the defense and Arnold close. The State has the opening and the concluding argument before the jury.

If the jury makes a verdict quickly in this case, The American of next Sunday ought to carry it. If it makes a mistrial, or delivers a greatly delayed verdict, it seems certain that at this time that neither of those facts can be made known before well into next week.

It is estimated that the trial will have cost the County of Fulton approximately $10,000, if the case ends with this trial. If it does not end with this trial, the eventual expense hardly can be intelligently anticipated now.

* * *

Atlanta Georgian, "Frank or Conley? Still Question," August 10th 1913, Leo Frank case newspaper article series
atlanta-georgian-081013-august-10-1913

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