Another in our series of new transcriptions of contemporary articles on the Leo Frank case.
August 3rd, 1913
Negro’s Testimony Now Supremely Important
Both Sides Stake Their All on His Evidence
STATE FORGES CHAIN TO TAX ALL THE INGENUITY OF DEFENSES LEGAL ARRAY
First Week of Battle Has Fixed the Time Almost Exactly According to Theory of the Solicitor—Doctors’ Testimony His Important Bearing.
BY AN OLD POLICE REPORTER.
There are two tenable theories of the manner in which little Mary Phagan met her tragic death in the National Pencil Factory on Saturday, April 26.
Either she was murdered by Leo Frank, as charged in the indictment, or she was murdered by James Conley, the negro sweeper, employed in the factory.
If there is another theory, it has not been advanced.
The theory that Frank killed the girl is the one set up by the State; the theory that Conley killed her is the one to be set up by the defense.
Which, if either, is the true theory?
That is the all-absorbing puzzle engaging the attention of Atlanta and Georgia to-day.
MANY POINTS CLEARED UP.
The trial of Frank has progressed wearily as to detail, but it has gone far enough for many points to have been cleared up.
The State has sought to show this:
Mary Phagan left home at 11:45, and arrived at the factory at or about 12 o’clock.
She went to Leo Frank’s office to draw her pay, after its delivery to another person had been declined the afternoon before, and, therefore, she must have been in his office not later than 12:05, if not a trifle earlier.
Here she appears in life for the last time, so far as any living being will say.
According to the expert testimony of Dr. Roy Harris, the girl was dead within from thirty minutes to three-quarters of an hour after she ate her lunch of cabbage and bread—as disclosed by an analysis of the contents of her stomach—and, therefore, must have been killed between 11:45, when she concluded her lunch, and 12:30.
Monteen Stover testifies that Frank was not in his office from 12:05 to 12:10, after Mary Phagan arrived there, and still well within the period of the time in which she must, according to Dr. Harris, have been killed.
Mrs. White testifies that she left the factory about 1 o’clock, at which time she saw a negro loafing about the steps leading up to Frank’s office. Presumably, this negro was Conley.
In addition to the foregoing, the State has endeavored to show that part of Mary Phagan’s pay envelope was found, after the crime, near her machine in the factory, that a strand of her hair was found on a lathing machine near where her body was supposed to have fallen first, and that blood spots were found near a dressing room she sometimes used.
These are the big circumstances upon which the State proposes to base Conley’s story of how he was called upstairs by Frank, after Frank presumably had murdered the girl, and hired to help conceal her body in the basement.
MUCH DEPENDS ON CONLEY.
Conley’s story, on the stand and under cross-examination, will make these circumstances either highly important and damaging to Frank, or of relatively small account.
The defense will contend that it is by no means conclusive that the girl died within the narrow limits of time set up by Dr. Harris, even though it might have been effected in that time—and if it was, that Conley still might have been the slayer and not Frank.
It seems certain that Mary Phagan was killed early in the afternoon of April 26, or fatally disabled then, if killed later, as she never was seen to emerge from the factory after she went in about noon.
The defense will claim failure upon the part of the State to show conclusively a motive for the crime upon the part of Frank, but it will contend that the motive upon the part of Conley was robbery.
It will say that Conley, although not known to have been in the factory at all when Frank was indicted, since then has been found to have been there as early as 10 o’clock in the morning, was there before 12 and after 1, had been drunk during the morning, and was, when Mary Phagan came down the steps to emerge from the factory by way of the gloomy passage, still partially drunk, “broke,” and wanting both more whisky and some money to purchase it—that, in this condition, he saw Mary Phagan, with […]
DOCTORS’ EVIDENCE NEW FRANK BATTLE GROUND
[…] her mesh purse in her hand, and that he then and there killed her for her money, threw her body into the open and nearby elevator shaft, down which he went later to conceal her body in the rear, and to make his guilty escape by way of the broken-down back door.
The defense will urge against Conley all the circumstances of his contradictory affidavits, his admitted lies in the earlier stages of the investigation, particularly when he, the now confessed author of the notes found beside Mary Phagan, claimed persistently that he did not know how to write.
Character Is Issue.
In addition to this, Conley’s general reputation for shiftlessness and viciousness will be set up and shown by police records, and that by way of contrast with Frank’s unblemished college and business career and general reputation for good character and decency of conduct in every direction.
Besides, the defense will say, Conley’s last story, contradictory of his other stories though it is, still is amazingly inconsistent as to facts and truth, and should be rejected therefore merely as the utterance of a guilty person, undertaking to shift from his own shoulders and on to the shoulders of Frank responsibility for the awful deed.
It will be the contention of the defense that Conley never chirped of Frank’s connection with the crime until suspicion began rapidly to drift in Conley’s direction, and that he then seized upon Frank as his victim because Frank then had come under suspicion himself, and must therefore have appealed to Conley as the easiest and most likely mark in sight.
There, in brief, are the two theories of the awful fate that befell little Mary Phagan.
Evidently the case of both the State and the defense radiates from Conley—the big, black sinister figure whose depressing shadow has darkened the case from start to finish.
All the State has done has led always to Conley—all the defense will do must lead always to Conley.
What the defense may do on its own direct evidence yet remains to be seen. What it seemingly must do is food for speculation and thought.
The State has proved the death of the girl by violence, and the venue. There is no dispute about those points.
It will be agreed that Mary Phagan reached the pencil factory about noon and that she was paid off by Leo Frank a few minutes later.
The defense will deny, however, the State’s contention that Frank was not in his office at the time Monteen Stover failed to see him there; and it will assert that he might have been in the office, and Miss Stover still fail to see him, such was the arrangement of Frank’s private office with respect to the general office adjoining, and such was the arrangements of the furniture in both rooms.
Time Link All Important.
If the defense can overcome the State’s accusation that Frank was not in his office during all of the time within which experts agree the crime must have been committed, then it will break down one of the strong links in the State’s case.
But can the defense do that?
There is Monteen Stover—will it do merely to throw doubt upon her allegation and not be able to shatter it outright?
If the jury holds fast to the idea that Frank was absent from his office at the time the Stover girl says he was, it will go hard with him, so the general impression is.
The State has shown rather effectively that Frank was very nervous on the morning after the murder, when the officers went for him at his home in Georgia avenue.
He seems to have been checked up on this point from many angles, and it generally is agreed that he was nervous and agitated.
It will be up to the defense, as removing a possibly suspicious circumstance, either to disprove this nervousness or admit it as a perfectly natural thing, in light of the happenings at the factory, guardedly kept from Frank’s knowledge until he was led into the presence of a dead girl at the undertaker’s.
The State has shown that Frank engaged counsel rather early in his troubles, and has attempted to show that he engaged counsel even before he was held as a suspect.
On cross-examination the defense undertook to explain away this by drawing out the fact that Frank was, as a matter of fact, under arrest when taken from his home Monday morning and removed to the police station, and that it was the knowledge of this that prompted him, or his friends, to secure counsel for him.
The one point that the State not yet has made its hand perfectly clear on is the motive of the crime.
Will the State contend that Frank was undertaking to outrage Mary Phagan against her will and that in attempting to do this, whether successful or not, he deliberately attacked her and killed her?
This contention must be made if the indictment which charges strangulation is to be upheld.
Doctor’s Stories Conflict.
The rather conflicting expert testimony of Drs. Harris and Hurt upon the questions controlling these two last-mentioned points makes it difficult to forecast now just which theory the State may adhere to in its final adjustment of its case.
The defense, however, to clear Leo Frank, will have to combat both these theories. Otherwise Frank is condemned utterly in public opinion and in law.
Robbery Defense Theory.
The defense will insist upon one theory only with respect to the motive moving Conley—it will be robbery pure and simple.
The defense, in cross-examination, has undertaken to show that, while Mary Phagan’s pay was refused to a party, as the State contends, the afternoon before her death, it was customary for the office to decline to pay the wages of employees to others than the employees themselves or their authorized and known agents. This agent, the defense contends, was a stranger and not authorized properly.
Undoubtedly, the sensation of the week was Dr. Roy Harris’ positive and dramatically delivered testimony to the effect that Mary Phagan died within from 30 to 45 minutes after she ate her lunch, i. e., between 11:45 and 12:30.
Dr. Hurt, another expert, rather vigorously dissented from Dr. Harris’ conclusions, however, holding that the question of how long boiled cabbage remained in process of digestion in a stomach depended largely upon the particular stomach charged with the duty of digesting it.
Some stomachs make comparatively quick work of cabbage; other stomachs find it most difficult to dispose of.
The same condition of partial digestion might be discovered, so Dr. Hurt said, in two different stomachs, particularly with respect to cabbage, notwithstanding the fact that one stomach might have had the cabbage in process of digestion 30 minutes and the other stomach two or even three times as long.
The defense will argue from this statement that Mary Phagan might have been killed after Frank left the factory—a little after 1 o’clock—and the partially digested contents of her stomach would uphold that contention as conclusively as the other.
Therefore, the defense will claim Conley had ample time, even within the limits as set up by Dr. Harris testimony, to effect the murder, and much more than sufficient time within the limits as set up by Dr. Hurt.
Fragments Always Found.
Again, the State endeavored to show by a witness named Barrett that a fragment of Mary Phagan’s pay envelope was found near her machine on the second floor, and that blood spots were found near a dressing room frequented by her.
On cross-examination, the defense succeeded in getting Dr. Claude Smith to say that the samples of this blood given him might or might not have been human blood, and also succeeded in getting Witness Holloway to say that fragments of pay envelopes were scattered habitually all over the factory, and that fragments of rope, also, such as was found around Mary Phagan’s neck when her body was discovered, were commonly scattered all over the building and were swept up every now and then and sent to the basement for burning.
This point will be urged by the defense in establishing its theory against Conley, in that an attempt will be made to show that Conley put the rope around the girl’s neck, after he had killed her on the first floor above the basement, and dragged her back to the rear of the basement, purely as a bluff and as a clumsy attempt to cover up the real manner of her death.
The illiterate notes found beside the dead girl have not yet been tendered as to their actual contents, but it will be admitted that Conley wrote them.
Conley, however, in his affidavits—and, presumably, he will repeat this on the stand—says he wrote these notes at Frank’s dictation, and that Frank told him he wanted “to send them to his mother.”
The notes are in the negro’s handwriting, and the defense will stress the point that he now admits having written them, in spite of early denials and in the fact of his oft-repeated denial that he knew how to write at all. After Conley had denied, time and again, that he knew how to write a contract under which he had purchased a cheap watch was discovered, which he had signed.
This will be urged against Conley as a stronger circumstance of guilt than any circumstances the State has set up against Frank.
The testimony so far as to whether Mary Phagan was outraged is conclusive and conflicting. Dr. Harris, who has gone further than Dr. Hurt, says that she might have been, and that there were some reasons to suspect that she had been. He would not say positively that she had, however.
Sees No Trace of Violence.
Dr. Hurt, on the contrary, said that, in his opinion, she had not been outraged—that he saw no evidence of sexual violence.
Both physicians and the undertaker agree that there were no beastly and unspeakable mutilations about the dead girl’s body, such as street rumor and gossip originally attributed to the perpetrator of the crime.
The foregoing, in a broad and general way, sums up the contentions and pleadings of the State during the past week, the achievements of the defense on cross-examination, and the probable procedure of the defense in the week to come.
The defense may enlarge or narrow its program as the case develops—what is set down here with respect to what the defense likely will do is, of course, speculation in part.
The questions to be thrashed out finally are these:
Did Leo Frank, between 12 o’clock and the time he left the pencil factory, after paying Mary Phagan her pittance of wages, lure or follow her into the back of the second floor, there assault her and kill her? Did he then secure the services of Jim Conley, for hire, promised but not paid, save as to some $2, to conceal the body in the basement? Did he spring upon this girl, like a beast, outrage and kill her; or did he, because she repulsed his low and sinister advances, in endeavoring to force his will, kill her, or kill her to keep her from telling?
Any of these would be murder!
Wanted Money For Whisky.
Or did Jim Conley, half drunk, loitering in the dark hallway below, seeing little Mary Phagan coming down the steps with her mesh bag in her hands, brooding over his lack of funds wherewith to get more whisky, find in the situation thus set up an opportunity to secure a little money—the violent killing of the girl following?
The State is contending the one thing—the defense will contend the other.
Both theories will be exhaustively tested, and upon the decision of that great umpire, the jury, will the fate of Leo Frank depend.
The two extremes goals have been set up. Which side will win?
About Conley—ever and always about Conley—the Frank case revolves, and will revolve until it ends.
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