Atlanta Georgian. [volume], April 17, 1914, Extra, Page 4, Image 4

About Atlanta Georgian. [volume] (Atlanta, Ga.) 1912-1939

Image provided by: Digital Library of Georgia, a project of GALILEO located at the University of Georgia Libraries

                
4
NEW FRANK PLEA ASKS VERDICT BE SET ASIDE
Execution Stayed; April 22 Fixed as Dale of Hearing
CONSTITUTIONAL RIGHT
OF AGCUSED DEGLARED
10 HAVE BEEN [GNORED
Continued From Pidge 1.
Phagan is to form an important part
of the extraordinary motion for a new
trial was Indicated by the submission
to Dr. Harris of a long list of writ
ten guestions at the hearing Thurs
aay.
The questions had to do with every
aetail of his microscopic examination
of the strands of hair found on the
Jathe and the compmrizon with strands
taken from the head of the murdered
girl.
Detective John Black and A, T,
Stepheny, assistant to the Solicitor,
were agled for uffidavits relating to
the finding of the halr and its sub
missios. w Dr. Harris for examina
tion. Decective Black signed his af
fidavit In the courtroom.
W. M. Bmith, lawyep for the negro
Jim Conley, also was asked for an
affidavit. He is reported to have
been present when Dy Harris told
Bolicitor Dorsey that the hair found
on the second floor of the pencil fac
tory was not that of Mary Phagan.
Smith Hits Defense.
The Solicitor is quoted as telling
Dr. Harris to “forget it.” Smith said
Thurscay that he did not hear this
reported conversation.
A subpena will be asked by the de
fense for Mary Rich, the negro wom
an who swore in an aflidavit that she
saw Jim Conley coming from the rear
of the pencil factory at 2:15 o'clock
the afternoon of the murder, and that
he returned th way he came—a state
ment contradiceting Conley, who sald
he left the factory by the front door
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at 1:30 o'clock that afternoon, and
did not return untll Monday morning.
Since making the affidavit, the Rich
womain is rumored {o have made
[«!lflerenl afidavit for the Solicitor or
his agents, which whoily or in part
repudicates her first statement, At
torneys for Frank said that they
wished her in ecourt to find out ex
actly what ranspired on the after
noon of the slaying.
Here is the petition questioning the
’mn.-tlhnlonumy of the verdiet:
| Move to Set Aside Verdict.
~ Now comeg Leo M, IFrank, the de
fendant in the above stated cause,
against whom in sald cause a verdict
of guilty of murder was received by
the court on August 25, 1913, and
moves the court to set aside sald ver
diet for the following reasons:
~ Because at the time that said ver
dict was received and the jury try
ing the case was discharged, this
defendant was in the eustody of the
law and incarcerated in the common
jail of sald county. He was not pres
ent when said verdlcl was received,
and the said jury was discharged,
a 8 he had the right in law to be, and
as the law required that he should
be. He did not waive msaid right,
nor did he authorize anyone to waive
it for him, nor consent that he shou'd
not be present. He did not even know
that said verdict had been rendered
and waid jury discharged until after
the reception of the verdiet and dis
charge of the jiry, and until after
sentence of deach had been pro
nounced upon him, o
Because while in point of fact The
statements above made are true, yot
the presence of this defandant at (he
reception of said verdict wus a legal
right of defendant und a requirement
of law which could not be walved
even by this defendant himself, the
charge upon which this defendant
was tried being a ck e of murder,
subjecting him to pos-i.e deprivation
of his life, and which walver would
be not only a renunciation of a right
which the law had established ‘in his
favor. but would be a renunciation
affecting the public interest,
Threats of Vieience.
Because on the day saild verdict
was rendered, and shortly before Hon,
[.. 8. Roan, the judge who presid.l
upon the trial of said cause, hegan
his charge to the jury, the said judsge,
fn the jury room of the courthouse
wherein the trial was proceeding,
privately converse® with 1., Z. Rosser
and Reuben R. Arnold, two of the
counsel of this defendant, and in sawd
conversation referred to the probablo
danger of violence that this defend
ant would be in if he was present.
when the verdict was rendered in the
cause, if sald verdict ghould be one
of acquittal, and after sald judge thus
expressed himself, he, the said judge,
requested sald counsel to agree that
this defendant need not be preseat
at the time the verdict was rendered
and the said jury polled.
Under these circumstances the sail
counsel did agree with the said judge
that this defendant should not be
resent at the rendition of saild ver
dict, In the same conversation the
sald judge expressed the opinlon als),
to said counsel, that even the coun
sel of this defendant might be in dan
ger of violence at the reception of
said verdict,
Under these circumstances defend
ant's counsel, sall Rosser and said
CArnold, dld agre wih the sald judge
that this defendant should not he
present at the rendition of the ver
dict. This defendant was not pres
ent at sald conversation and Knew
nothing about the same or of any
a~reement muade, as above stated, un.
til after the verdict was received and
the jury discharged, and until after
sentence of death was pronourced
upon him.
Defense Lawyers Absent.
Pursuant to the conversation above
' stated, neither the said Rosser nor
the sald Arnold nor Herbert J. Haas,
who were the sole counsel of tiis
defendant in sald cause, were present
when the sald verdictewas received
and sald jury discharged: nor wpe
‘this defendant present when said
‘verdict was rendered and the said
jury discharged. Defendant says ha
| did not give to said counsel, the said
Rosser and the said Arnold, nor m‘
anyone else any authority to walve
or renounce the right of this de
fendant to be present at the reception
of sald verdict, or to agree thal this
defendant shonid not be present
there at; and the relation of attor
nev and cllent did not give them such |
authority, though sald counsel acted
in the most perfect good faith and
in the interest of the personal safely
|of this defendant. Neither the sa'd
| conversation, nor the purport thereof
| was communicated to said Haas, nor
idid said Haas know thereof until nf
i ter sentence was pronounced on de
| tendant. |
Defendant d!d not give to sald
Rosser, nor to said Arnold, nor to
said Hass any authority to them
| selves be absent when s=ald verdict
iwu received, nor did he agree that
they or either of them might be so
absent, ‘
The said agreement, made by the
eaid Rosser and the sald Arnold, even|
if otherwise it could be of any blnd-i
ing force and effect, upon this do-‘
fendant, was of no legal force and
effect, so far as the presence of this
defendant at the reception of sald
verdict was concerned, because the
same was made under and because
of the sald statement, made as above
| stated to the said Rosser and the sald
| Arnold by the judge who was presid
ing upon and at said trial, that there
| was probable danger of violence to
this defendant should he be present
| when sald verdict was rendered,
| should the verdict be one of acquit
| tal, and because they, the sald Rosser
land the eald Arnold, were induced to
| make sald agreement because of sald
| statement go made to them, belleving
{the same to be true and believing
{that for this defendant to be so pres
|e—n'. if the verdiot should be one of
acquittal, might subject this defend
ant to serious bodily harm and even
to the loss of his life.
Defendant sayve upon and because
of each off the grounds above stated
and also fpon and because of all of
'NEW PLEA OPENS WAY
TO U. S. HIGH COURT
One of the most unexpeeted developments in the Frank case !
! came Thursday in the motion to set aside the verdiet of the trial <
. jury on the constitutional grounds that the defendant was de
’ prived of his legal rights in being absent from the eourt room ;
¢ when the verdict was returned. The motion ean be used as the |
! basis of an appeal to the Supreme Court of the United States, if |
{ such procedure is necessary. .‘
§ The motion was filed by John Tye, of the firm of Tye, Pee- |
) ples & Jordan. In substance it said:
That Frank was not present when the verdict was rendered. ¢
That he had not waived hig presence nor autihorized hisg
' counsel to waive his presence. {
g That, had he wished to do so, he was not empowered to
' waive his presence nor were his attorneys, :
) That he clearly was deprived of his rights as guaranteed to /
" hint by the contitntion of the State of Georgia and of the United
States. ¢
That the verdiet in the trial should, for this obvious viola- !
' tion of the provisions of the highest law of the State and of the
' land, be set aside and declared illegal.
them, the said veérdict was and is
of no legal force and effect and th:
gsame is vold.
(1) That the reception of sald ver
dict, in the involuntary absence of
thix defendant, while he was 80, as
aforesaid, in ihe custody gt the law
and incarcerated in jail, was contrary
to law and was in violation of the
legal rights of this defendant.
(?) Defendant says that the re
ception of said verdict in the invol
untary absence of this defendant
while he was 80 confined In jall, was
in violation of and comtrary to the
provigions of article 1, ceotton 2, par- |
agraph 3, of the (C‘onstitution of the
State of Georgla, providing tinat "'no
person shall be deprived of life, lib~
erty or property, except by due pro
cess of law,” the said reception of
gald verdict during the Involuntary
absence of this defendant and \\‘hile|
he was confined in jail depriving the‘
proceedings against him of the char
acter of a trial to which he was en- |
titled under the law, and depriving
him of the hearing and the oppor
tunity to be heard in his own defense
to which he was entitied under the
law and to which he was entitied
under the =ald provision of the Con
atitution of the State of Georgia, .
3. Defendant saye that the sald re- l
caption of said verdict In the invol- |
untary absence of this defendant |
while he was so confined in jall \\'as'
in violation of and conirary Lo the |
provisions of Article 6 Section 18,
paragraph | of the Constitution of |
the State of Georgia, that “the right
of trial by jury, except where it is
otherwise provided in this Constitu
tion, shall remain unviolated” be-l
cause the right of tria] by jury under
the laws of the'State of (jeorgia ex
tended to and covered with Its pro
tection the right of this defendant to
be present in person al the reception
of the verdict against him in =aid
cause, and because the reception of
sald verdict during the Involuntary
abgence of this defendant and while
he was so confined in jail was ir
violation of the right of trial by jury
to whichy this defendant was entitled,
sald rlgh}‘ including the right of this
defendant to be present at the recep
tion of the said verdict, and to be
then and theve heard in hig own de
fense. |
Demands Constitutional Rights.
4. Defendant says that the sald re
ception of said verdict in the invol
untary absence of this defendant,
while he was so confined in Jall,
tended to deprive him of his life and
liberty without due process of law,
‘and that the same denied to him the
equal protection of the laws, con
trary to and in violation of the pro
| visions of the lourteenth Amend
ment to the Constitution of the Unlted
Lsmu-s, to-wit: “Nor shall any State
deprive any person of life, liberty or
property without due process of law,
nor deny to any person within its ju
risdiction the equal protection of the
lJaws,” the said reception of sald ver
dict during the involuntary absence
of this defendant and while he was
confinm in jail depriving the pro
ceedings against him of the character
of a trial to which he was entitled
under the law, and depriving him of
the hearing and the opportunity to be
heard in his own defense, to which
he was entitled under the law and to
which he was entitled under the sald
provision of the Constitution of the
United States, and this defendant
claims the protection of sald provi
sion.
’ Defendant says that the sald recep
tion of said verdict in the involuntary
luhsx-m e of this defendant and while
YOU CAN'T BRUSH OR
The Simplest and Quickest Way
- »
Is To Dissolve It.
The only sure wayv to get rid cof
dandruff is to gissolve it, then you
destroy it oml#l,\‘. To do this, get
about four ounces of ordinary liquid
arvon; apply it at night when retir
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and rub it in gently with the finger
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Do this to-night, and by meorning
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It is inexpensive and never fails to do
'the work.—~ADVERTISEMENT,
THE ATLANTA GLOLGIAN AND NEWS
he was so incarcerated in jail, and in
the said absence of this defendant’'s
counsel, under the circumstances as
above stated, was contrary to and in
violation of the provisions of article
1, section 1, paragraph 5, of the Con
sti!ut‘.lw of the State of Qeorgia, to
wit, “Kvery person charged with an
offense against the laws of this Htate
snall have the privilege and benefit of
counsel,” because this defendant, un
der and because of the sald circum
stances as above set forth, was de
prived of the presence of his counsel
and of the benefit of counsel at the
reception of said verdict, to which he
was in law and under said constitu
tional prevision entitled; and for and
because of the same safd conditions
and circumstances the reception of
said verdlet was In violation of the
provisions of the fourteenth amend
ment of the Constitution of the Unit
ed States: “nor shall any State de
prive any person of life, liberty or
property without due process of law,
nor deny to any person within its
jurizdiction the equal protection of
the lawe,” in that this defendant was
under the said conditions and eircum
stances deprived of the right to the
benefit of counsel and of the presence
of his counsel at the reception of said
verdict, and defendan( claims the pro
tection of the said atmendinent.
Because the said jddge, Hon. 1. S.
Roan, upon considering the motion for
a new trial, made by this defendant,
after the reception of said verdict, as
above stated, rendered his judgment
denying said motion, and in rendéring
said Judgment stated that the jury
had found the defendant guilty; that
he, the said judge, had thought about
this cause more than any other he had
ever tried; that he was not certain of
the defendant’s guilt; that with all
the thought he had put on this case,
he was not thoroughly convipced that
Frank was guilty or innocent, but
that he did not have to he convinced;
that the jury was convinced; that
there was no room to doubt that; that
he felt it to be the duty to order that
the motion for a new trial be over
ruled.
Not Given Benefit of Doubt.
This defendant says that under the
provisions of the fourteenth amend
ment to the Clonstitution of the Unit
ed States, no State could deprive this
dafendant of his life or llberty with
cut due process of law, nor deny him
the equal protection of the laws, and
that he has not been afforded due
process of law, and that he has been
denied the equal protection of the
laws, in that the said judge, in so as
aforesaid, denying to him a new trial
7| sest ILA e
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OLD CONFEDERATE VET'S
INTERESTING NARRATIVE
Sixty-Seven Years of Age, Still Hale and Hearty and Can
Swing 14-Inch Plow All Day Long.
Frost, Texas—"l am an old Confed
erate Veteran, 67 vears of age,”’ says
Mr. Wesley French, of this place, “and
have been living and farming in Na
varro County since 1872, Have rais:d
quite a large family,
“I am hale and hearty, and cag
swing a 14-inch plow all day long.
Haven't had fever or chills in 44
yvears; in fact, 1 don'\ allow mysel?
or family to get sick, We always
take a few doses of Thedford's Black-
Draught before we get sick.
“When I get up in the morning and
have a bitter taste in my mouth, ora
dull headache, 1 take a dose of Black-
Draught after eating a little break
fast, another dose - n(fon and anoth-
in sald cause, did not, as shown by
his said statement, give tp this de
fendant the judicial determination of
safd motion to which defendant was
entitled by law; that sald judge being
constituted by law as ona of the triers
did not afford te this defendant the
protection which the law guarantees
the Jaw being that defendant is enti
tled to the benefit of every reagonable
doubt, the presumption of innocence
being in defendant’s favor, and the
trial judge, though entertaining th~
doubt which he felt ams to this defend
ant’s gullt, and nevertheless denying
to him a new trial, by said action de
nied to thls defendant the fair and
lawful trial he is entitled to, and
thereby this defendant has heen de
nied the due process of law.
Because that fair and impartial trial
was not accorded defendant which
is guarantezd to him by the Cunsti
i tution of the United States, as con
tained in the fourteenth amendment
to said Constitution, to-wit: “Nor
gshall any State deprive any person
of life, liberty or property without
due process of law, nor deny to any
person within its jurisdiction the
equal protéction of the laws."”
Reviews Crowds’ Behavior.
In- support of this ground movant
alleges that the courtroom wherein
thig trial was peld had a nimber of
windows on the. Pryor street side
looking out on a public street of At
lanta, and furnishing easy access to
any nolses that might occur upon the
ian'eet; that there is an open alley
lway running from Pryor street on
| the side of (he courthouse, and *there
lare windows looking out from the
| courtroom into this alley, and that
icrowds collected therein, and any
Inoises in this alley could be heard
in the courtroom; that these crowds
were boisterous, and that on the last
day of the trial after the case had
| been submitted to the Jury, a large
{and boisterous crowd of several hun- |
ldred people were standing in lhel
jstreet in front of the courthouse, :mdl
ar the Solicitor General came out
greeted him with loud and bn!ster"l
ous applause, taking him upon their
shoulders and carrying him across
the street into a building wherein
his office was located; that this
crowd did not wholly disperse dur
ing the interval hetween the giving
of the case to the jury and the time
when the jury reached its verdict,
but during the whole of such time a
large ¢rowd was gathered at the
junction of Pryor and Hunter streets;
|that several times during the trial
the erowd in the courtroom, and out
fsldo‘ of the courtroom, which was au
i dible both to the court and jury,
iwould applaud when the State scor
ied a point; a large crowd of peo
'nle standing on the outside cheer
ilng, shouting and hurrahing, and the
ierowd within the courtroom signify
jing their feeiings by appiause and
| other demomstrations; and on the
trial, and in the presence of the jury,
| the trfal judge in open court con
jlerred with the Chief of Police of
[ Atlanta and the colonel of the Fifth
| Georgia Regiment, stationed In At
{lanta, which had the natural effect
iof intimidating the jury, and so in
{fluencing them as to make impossi
il’“" a fair and impartial considera
i tion of defendant's case; indeed, suchl
?demnnstmlinns finally actuated the
!court in ‘making the request of de
| fendant’s counsel, Messrs, Rosger and
lArnold, as detailed in paragraph
| three of this motion, to have defend
ant and the counsel themselves to bel
I absent at the time the verdict was‘
| received ip open court, because the|
:Judge apprehended violence to de
‘fflndunt and his counsel; and the ap-}
{ prehension of such violence natuvally |
(saturated the minds of the jury so
las to deprive this defendant of a fair
and impartial consideration of his,
,case, whic)y the Constitution™of the
United States in the fourteenth
lamendment hereinbefore referred to,’
tentitled him to. |
! *On Saturday, August 23, 1913, pre
| vious to the rendition of the verdict
ior Augubt 25, the entire public press
| of Atlanta appealed to the trial court
| to adjourn court from Saturday to
{ Monday, owing to -the great public
| excitement, and the court adjourned
| from Saturday, 12 o'clock m., to Mon
| day morning, because it felt it unwise |
{ to continue the case that day, owing
1 to the great public excitement, and on‘
er at night, and it has never falled to
cleanse my stomach and liver. It
never gripes, but makes me want to
eat, Instead of making me sick.
“We have used Thedford's Black-
Draught for 40 years (since 1872),
and feel that we couldn't get along
With: ¢+ .
For over 0 vears, long before the
war, Thedford's Black-Draught has
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liver, stomach and bowels, such as
constipation, biliousness, indigestion,
headache, dyspepsia, bad breath, sour
stomach, etc.
Purely vegetable. Good for young
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Begin to-day—ADVERTISEMENT,
Monday morning the public excite
ment had not subsided, and was as
intense as it was on Saturday pre
vious. I
And when it was announced that
the jury had reachad a verdict, the
trial judge went to the courtrocom and
found it crowded with gpectators, and,
fearing violence in the courtroom, the
trial jodge cleared it of spectators,
and the jury was brought in for the
purpose of delivering their verdict.
When the verdict of gullty was an
nounced, a signal wag given to the!
crowd on the outside to that effect.
The large crowd of people standing
on the outside cheered and shouted as
the jury wae beginning to be polled,
and before more than one juror had
been polled the noise was so loud and
confusion so great that the further
polling of the jury had to be stopped
50 as to restore order, and 8o great
was the noise and cheering and con
fusion from without that it was diffl
cult for the court to hear the re
sponses of the jurors as they were
being polled, though the court was
only ten feot distant from the jury.
Ask Verdict Be Annulled.
All of this occurred during the in
voluntary absence of this defendant,
he being at the time in the custody of
the law and incarcera®™d in Fulton
County jail, his absence from the
courtroom having been requested by
the court on account of fear of vio
lence to said defendant, as hereinbe
fore recited.
Wherefore the premises considered,
the defendant prays that the said
verdict be set aside and go for
naught, Defendant prays that a rule
be granted calling upon the State of
Gecrgia, by its Solicitor General, to
show cause, at a time to be fixed by
the courg, why the prayers of this pe
tition should not be granted, and that
in the meantime and untii the further
order of this court the execution of
the sentence of death which has been
pronour.ced against this defendant be
stayed.
LEONARD HAAS,
TYE, PEEPLES & JORDAN,
H, A. ALEXANDER,
H, J. HAASB,
Attorneys for Leo M. Frank.
Italian Count Sues
l. . -
U. 8. Wife rf Divorce
CHICAGO, April 16.—The divorce
suit of Count Vittor Moschini, a for
mer member of the Italian Chamber
of Deputies, against his American
wife, who was Lulu Davis, of Austin,
Texas, hefore her marcriage, began
here to-day.
' The suit is based on statutory!
grouncs, (Hunt Bellegarde, a dashlng|
' voung lieutenant in the Italian navy, |
‘bplng named. Recause of the nature |
of the evidence the court ordered that
ttestimuny be taken behind (‘!osedl
doora
In November, 1912, Signora .\lns-|
chini and Count Bellegarde were m'-‘
rested at the latter's residence at mo‘
instigation of Count Moschinl. i
lAtlanta Gets Annual |
, "
Beavers Conventloni
The tenth annual national convention
of the Supreme Dam of the Independent
’(lrder of Beavers will meet here May 8
and 9. These dates were selected on
account of the large number of supreme
Iror-rvse‘nmpven who are also Shriners. !
The delegates to the annual meeting
of the supreme dam will be Judge J. N.
Piazza, of Vicksburg; R. B. Howard, of
Vicksburg; H. W. English, of Birming
lham. and 8. S. Hlufson, of J-cksun.l
Miss, .
“HOW AWFUL!” Cried
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MOVING PICTURES
AND DON'T FORGET
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