Another in our series of new transcriptions of contemporary articles on the Leo Frank case.
Atlanta Journal
August 14th, 1913
Defense Character Witness Is Used by Solicitor to Get Suggestions Before Jury
Solicitor Mentions Names of Many Persons, Who Will Probably be Put Up in Rebuttal to Attack Frank’s Conduct as Related to Woman Employes of Factory—Mrs. Rae Frank, Mother of the Accused, Creates a Sensation Shouting at the Solicitor.
Court adjourned at 5:40 until 9 o’clock Thursday morning.
The trial of Leo M. Frank took another sensational turn Wednesday afternoon when Solicitor Dorsey began, through his questions to John Ashley Jones, put up as a character witness by the defense, a vigorous attack upon the character of Frank. The solicitor hurled one sensational question at the witness after the other.
“You’ve never heard L. T. Coursey and Miss Myrtis Cator tell about Frank walking into the dressing room?” shouted the solicitor.
“You never heard how he tried to put his arms around Miss Myrtis Cator?”
“You never heard about his looking at poor little Gordie Jackson?”
“You didn’t hear of what he tried to do to Luis McDonald and Rachel Prater, did you?”
“And you didn’t know about Mrs. Pearl Dodson hitting him with a monkey wrench?”
To all of these questions the witness answered in the negative. The solicitor proceeded with others, asking the witness if he had ever talked to Mrs. G. D. Dunnegan and Marian Dunnegan or to Mrs. Wingard, of 45 Mills street.
It is inferred that the solicitor expects to put up the persons mentioned to testify in rebuttal against Frank’s good character.
Mr. Dorsey drew from Mr. Jones, who is an insurance agent, the admission that he had written to the grand jury, urging an indictment of Jim Conley. Mr. Jones said he did so because his insurance company had written a policy for Frank and before issuing it had made a thorough investigation of his character and found it to be good.
There was a tense scene in the court room Wednesday afternoon when Solicitor Dorsey while examining a witness, was interrupted by Mrs. Rae Frank, mother of the accused. The solicitor had just asked a character witness, John Ashley Jones, whether he had ever heard that Frank conducted himself improperly in his office, when Mrs. Frank shouted in a voice that was audible all over the court room:
“No, and you didn’t either.”
Attorney Reuben Arnold, in a kindly voice, admonished Mrs. Frank that if she sat in the court room she must submit to hearing “these vile and slanderous lies.” He suggested that she was probably overwrought and would better leave the court for a while. She was assisted from the room and, very much agitated, driven in an automobile to her son’s home.
After the solicitor and attorneys for the defense had cited authorities and argued at length, Judge Roan, Wednesday afternoon, announced that the testimony of witnesses who re-enacted Jim Conley’s story in an effort to develop the time required to take part in the conversations and movements described by the negro, would be admitted. Both sides had argued strenuously on the point evidently considering it of much importance. Judge Roan stated that he was not entirely satisfied, but that he would give the defendant the benefit of any reasonable doubt.
Lemmie Quinn resumed the stand after the judge announced his decision and was severely cross-questioned by the solicitor.
Leo M. Frank spent the noon recess of court, after he had eaten lunch in a room adjoining the scene of the trial, chatting with the three out-of-town friends whose testimony Wednesday morning in his behalf as a man of good character had put that point in issue. They were Alfred L. Lane, of Brooklyn N. Y., Philip Nash, of New Jersey, and Richard A. Knight, of Brooklyn, N. Y. Evidently the mother of the accused knew them, too, for she talked with them cordially and introduced to them Atlanta friends of Frank who called.
The discussion as to the admissibility of the testimony regarding the time test made at the factory upon Jim Conley’s story was resumed when court reconvened at 1 o’clock, the jury being left out of court meanwhile. Lawyers for both sides cited the authorities for which Judge Roan had asked.
Judge Roan said that he wanted to hear whether there was any evidence introduced on which to base a time comparison.
Attorney Rosser arguing for the defense, contended that there did exist a reasonable basis of comparison—reasonable because no two things are identical, and because it was therefore humanly possible to approximate what Conley says he did and said that day at the factory.
ROSSER CITES AUTHORITIES.
Mr. Rosser cited a number of authorities, principally from damage suits, to sustain his contention that a re-enactment of a witness story is reasonable to test it. He cited one decision, calling attention to the fact that before recess Mr. Dorsey had challenged him to find “one Georgia authority” to uphold his side, wherein the law firm of which the solicitor is a member carried to the higher courts an effort to get a similar evidence before a jury. He said the defense was offering no new doctrine to the court. Similar evidence is admitted constantly in damage suits, said he. He digressed to declare that that it is a profound mistake of the law which permits the introduction of testimony whose veracity the courts have reason to doubt. Such evidence, said he, never should be allowed to get to a jury, in the first place. The court should stamp its doubtful character and rule it out. “Can’t the court assume that it was under ordinary and usual circumstances that this thing was done?” he demanded. He declared that the four men relied upon by the defense for the test had reproduced as nearly as is humanly possible the story related by Conley as to what he said and did and as to what Frank said and did.
Solicitor Dorsey followed Mr. Rosser. He discussed the case of the Atlanta and West Point railway against Hunter, which was the last authority cited by Attorney Rosser. The solicitor contended that in this case the testimony was admitted because it was expert evidence. The specific question in that case was “How quick can a locomotive be stopped on a track?” Solicitor Dorsey contended that inasmuch as the engineer knew more about the stopping of a locomotive and was in a sense an expert, he was allowed to testify. He was more competent to judge than the jurors. In the present instance, he declared, the jurors were just as competent to judge as Dr. Owen or any other witness. “The admission of this opinion is fraught with danger,” said he. He cited an authority to the effect that experts can testify in relation to a particular art, science or profession, because from their experience they are cited to know more of the subject under discussion than the jury, which is composed of laymen.
Judge Roan interrupted, “I agree with you Mr. Dorsey, that no opinion should be admitted. As I understand it, however, Dr. Owen is not called upon to give an opinion, but to tell the jury of the facts about how long it took to be a certain thing. It is this point that I want to hear authorities on.”
“I won’t call it an opinion, then,” said the solicitor. He cited an authority, and [1 word illegible] that it showed the evidence is hearsay and irrelevant. He said a man goes to the pencil factory and enacts a story. That specific thing, said he, is no kin to this case. “It is too ridiculous for any court anywhere to consider as competent evidence,” he declared. “It would be impossible for men who went over there and coolly, with a watch timing them, to re-enact the hiding of the body, to reproduce the thing exactly because they were not acting in the heat of emotion. It is the duty of the jury to draw conclusions, and not of the witness.”
Mrs. Coleman, the mother of the murdered girl, was sitting within the railing behind the solicitor’s table. When the solicitor reached the point about the carrying of the body the mother buried her face in her handkerchief and sobbed quietly.
Attorney Arnold followed Solicitor Dorsey. He said that all through this case, almost unconsciously, both the defense and the prosecution and the court, had acted on the proposition that evidence of this sort is admissible. He said, for instance, that both sides had asked the policemen if they could see the body from the point in the basement where the night watchman claimed to have been standing when he first saw it.
Judge Roan said he did not care to have any further argument along that line. He asked if the testimony by Dr. Owens would contain anything upon which the jury could make a comparison of the time required to enact the story told by Jim Conley.
Attorney Arnold reviewed briefly what the defense proposed to show by Dr. Owens’ testimony. He said they had taken from the record of Jim Conley’s testimony every word and every movement which he claimed took place in the factory, both on his part and the part of Frank, and had staged the re-enactment of those words and movements as exactly as was humanly possible to do.
RULES WITH DEFENSE.
Judge Roan, in ruling, said he was not sure about the question, but that he would follow the rule and give the defense the benefit of every reasonable doubt.
QUINN RESUMES THE STAND.
Lemmie Quinn, foreman of the metal room, was recalled to the stand. Mr. Arnold concluded the examination by asking the witness if he still is employed by the National Pencil factory. The witness answered “Yes.”
Solicitor Dorsey began the cross-examination.
“When was it these men bled on the floor of the metal room?”
“About a year ago.”
“What were their names?”
“I remember C. P. Gilbert, who lives on Jones street. I don’t remember the other’s name.”
“The blood at the water cooler didn’t come from Gilbert, did it?”
“I don’t know.”
“Where did he bleed most?”
“In front of the machine.”
“You knew that was blood, didn’t you?”
“Yes.”
“How long did it stay there?”
“It might be there yet.”
“When did you notice it last?”
“I don’t remember well. It was a long time ago.”
“You noticed the spots on the floor near the dressing room on Monday after the murder?”
“Yes. It looked like blood.”
“What is the difference between those spots and the spots made by Gilbert bleeding?”
“The spots by the dressing room were darker.”
“Could gasoline have caused that?”
“I don’t know.”
“There are only four girls who work on the second floor, are there?”
“Only four in my department. There are about ten others in the polishing room.”
“Where were you at noon, April 26?”
“I don’t remember.”
“When you talked with Officer Payne, with Detective Starnes and Black, and other officers, you told them that you were not around the factory Saturday, didn’t you?”
“No.”
“Is it true that Frank was the first person you mentioned it to?”
“No.”
“You said you reminded Frank of your visit. Tell us how you reminded him.”
WHAT HE TOLD FRANK.
“I told him I had been at the factory, and he said he knew I had, but didn’t remember the time.”
“When was that?”
“On Tuesday after the murder.”
“You were with the police off and on all day Monday, were you not?”
“I was with them part of the time.”
“Did you tell any of the officers that you were at the factory before you talked with Frank?”
“No.”
“How are you so positive about the time?”
“I looked at my watch when I left home, and at the clock at the factory.”
“Didn’t you say at the coroner’s inquest that your wife had to remind you about the time?”
“No. They had been questioning me about how I spent my time, and I told them my wife reminded me that I had been to Wolfsheimer’s market.”
“Could you have been at the factory as early as 11:15?”
“I don’t think I could.”
“How long were you at the Busy Bee?”
“I don’t remember.”
“What time was it then?”
“I don’t know.”
“What did you say to the two girls?”
“I asked Mrs. Freeman if her mother was mad at her for running off and getting married.”
“What did you say to Officer Payne?”
“I don’t remember having any direct talk with Payne.”
ADMITS CONVERSATION.
“Didn’t you say at the coroner’s inquest that you walked into a Greek stand Sunday, and Payne and the Greek were talking about the murder, and you said, ‘What! Another Jack the Ripper?’ And Payne said, ‘No, a white girl’s been murdered at the pencil factory.’ And didn’t you say ‘Who was it?’ And didn’t Payne say ‘She worked next to Boots Rogers’ sister-in-law?’ And didn’t you say, ‘Why, it must be Helen Ferguson?’ And then the Greek said, ‘No, it was Mary?’”
“Yes, that’s about the way of it,” said the witness.
“When you talked with Frank, didn’t he tell you not to mention your visit till he had talked with the lawyer?”
“No; he said he would mention it to his lawyer.”
“Didn’t you tell him that you didn’t like to be brought into it, but would let it be known if it would help him? And then didn’t you tell the police?”
“No; I told him to mention it if he wanted to.”
“You were willing to do what he wanted you to do?”
“It was up to him to mention it if he wanted to.”
“But you didn’t tell it to the police until after he had talked to his lawyer?”
“The police didn’t get hold of it until Saturday, but they could have if they had asked me.”
“You talked to Barrett about the crime before the coroner’s inquest, did you not?”
“Yes.”
“And you two were together every day?”
“He works in my department.”
“And yet you didn’t tell him anything about being at the factory before the inquest?”
“I don’t know that I’ve mentioned it to him yet,” said Quinn.
“Where is Miss Jefferson?”
“I think she is at the factory.”
“You think,” said Mr. Dorsey.
“She was there yesterday,” replied the witness.
“It was 2 o’clock in the afternoon of the following Saturday before you told Chief Lanford or any of the police about being in the factory on Saturday, April 26, wasn’t it?”
“Yes.”
HADN’T TOLD OFFICERS.
“You had never spoke to the officers about it before, had you?”
“No.”
“And you spoke to Frank about it Tuesday?”
“Yes.”
“When was it Frank told you his lawyers had advised him to mention it at the coroner’s inquest?”
“I think it was Tuesday afternoon.”
“Didn’t you say before the coroner’s jury that Frank said he was going to mention it if it was favorable to him?”
“I’m not certain I said ‘favorable.’”
“When you made a statement to the police on May 5, didn’t you say you were in the factory between 12 and 12:20?”
“Yes.”
“Didn’t you say that that was as accurate as you could put it?”
“Yes, it was—then.”
“Didn’t you say in answer to a direct question that you couldn’t say exactly what time it was?”
“Yes.”
“You don’t mean to change your statement that it was between 12 and 12:20, do you?”
“It might have been between 12:20 and 12:25.”
“Then, how is it that you said on May 5 that it was between 12 and 12:30?”
“Then I hadn’t reckoned the time as I have now.”
“Didn’t I take you over every place you went, step by step, after you left home until you got back there?”
“No; you tried to, but I forgot part of it.”
The solicitor then read several questions and answers from a statement made to him by Lemmie Quinn on May 5. Quinn admitted all of them.
The solicitor then questioned the witness about the back stairway.
“How is the back stairway, leading from the office floor to the fourth floor, fastened?”
“With a bar.”
“What is the door kept fastened for?”
“In order to keep people from coming down that stairway on pay day and checking out and getting their money before it is ready.”
“This door is always kept closed, is it not?”
“No, sir.”
SOLICITOR PRODUCES STATEMENT.
Solicitor Dorsey said, “All right, Quinn.”
The solicitor produced another statement. “On May 11, in the presence of several detectives, Newt Garner and myself, didn’t you make the statement that the bar replaced a broken lock on this door, and that it was customarily kept closed?”
“Yes, I made that statement.”
“Why do you tell the jury now, then, that it was not customarily kept closed?”
“I was referring to pay day in that statement.”
HOW HE FIGURED IT.
“What has come into your life or your mind that you can now say that you were at the factory between 12:20 and 12:25 on Saturday, April 26, when you said on May 5 and May 12 and before the coroner’s jury that it was between 12 and 12:20 when you were there?”
“I reckoned the time from when I left home and the time I got to the pool room. When I made the statement I didn’t think of visiting. Wolfsheimer’s store. That made fifteen minutes difference.”
That concluded the cross-examination, and Attorney Arnold asked the witness a few more questions.
“When the detectives were questioning you on May 5 you overlooked the visit to Wolfsheimer’s, didn’t you?”
“Yes.”
“Who called your attention to it?”
“My wife.”
“Didn’t you tell your father Tuesday about having been in the pencil factory?”
There was objection from the solicitor, but after the question had been reworded so as to make it not leading Judge Roan allowed it.
The witness answered that he had told his father about it on Tuesday.
“Did Frank ever ask you not to tell the detectives of your visit?”
“No, sir.”
“If they had asked you, would you have told them?”
“Yes.”
OSCAR PAPPENHEIMER CALLED.
Oscar Pappenheimer was the next witness examined.
He testified that he is a furniture manufacturer and owns stock which he bought over a year ago in the National Pencil company. He testified that a week or so after he bought his stock he began to get weekly statements of business from the pencil company. He said that up to the time the Sunday distribution of mail was discontinued he invariably got that statement in his mail box at the post office every Sunday morning. He said that after the distribution of mail on Sunday was discontinued, he got the statement invariably in the Monday morning delivery. He brought these statements with him into court, and they were tendered as evidence by Attorney Arnold.
Solicitor Dorsey objected to them on the ground that they were irrelevant and had no bearing on the case, but Judge Roan admitted them.
TESTIFIES ABOUT CHARACTER.
John Ashley Jones, an insurance agent, was the next witness. He testified that he had known Mr. Frank for one year and eight months. He testified that he knew his general character to be good. He then was cross-examined by Solicitor Dorsey as follows:
“You are in the insurance business?”
“Yes, sir; I am a resident agent.”
“You live out on Fourteenth street, don’t you?”
“Yes.”
Solicitor Dorsey then asked the witness if he knew of Frank’s relations with the working girls at the factory, and the witness said he did not. The solicitor asked the witness on what he based his opinion of Mr. Frank’s character.
“About five years ago Mr. Frank out a policy with my company in New York. As usual with life insurance companies, we get a thorough report on him both morally and physically, and the fact that he showed up well in this report is proved by his having been granted a standard policy.
“After he came to Atlanta the policy expired and I took up with him the question of a renewal, talking with him several times. Once he told me to come to this office late some Saturday afternoon and he would go over the whole matter with me thoroughly. I went, found Mrs. Frank there with him, was introduced to her, he made out the application for a renewal and again by our agents he was thoroughly investigated, both morally and physically, and we got a very good report indeed on him.”
“Then you didn’t hear that he took girls in his lap down there at the factory?”
ARNOLD ENTERS PROTEST
Attorney Arnold jumped to his feet and interrupted the solicitor with a bitter objection.
“Your honor,” he exclaimed, “this is outrageous! We are not trying this man on every vile and slanderous lie that has been circulated against him since April 26. We are undertaking to show his character on April 26 and previous to that time. If every long-tongued, lying, crack-brained idiot that has circulated lies against him since this crime was committed, is to be believed, then we have no character to begin with at all.”
In reply to this Solicitor Dorsey said, “Your honor, I am not four-flushing one bit. I propose to introduce a witness who will testify that this witness did hear the reports concerning Mr. Frank to which I have just alluded.”
No sooner had Solicitor Dorsey made this statement than Attorney Arnold was on his feet again.
THREATENS MISTRIAL.
“Your honor, we cannot and will not submit to any such outrageous statements on the part of the solicitor. He knows that he cannot prove what he is saying. If he makes another such statement as that we will then and there move for a mistrial.”
Solicitor Dorsey continued the examination of the witness.
“You never heard that Frank went, to Druid Hills with a little girl, did you?”
“No.”
“You and the people up there at your office have been very active in this case, haven’t you? You wrote a letter to the grand jury urging them to indict Jim Conley, didn’t you, signed by several of the men there in your office?”
Solicitor produced the letter, and in reading the signatures called the name of the witness, John Ashley Jones, and a Mr. Cooney and a Mr. Clark. Mr. Jones admitted that he had signed the letter.
“Why did you send this letter?” demanded the solicitor.
“We thought that having had an especially good opportunity to examine into the character of Mr. Frank, and that having satisfied ourselves that he was a man of good character, it was no more than right that we should take this step and do what we could for him.”
“Did any one speak to you about writing the letter?”
“No, no one except Mr. Cooney. I think he was the man who conceived the idea, and the only man who spoke to me about it at all.”
“Didn’t you hear, about twelve months ago, that Frank played with little girls in his office?”
FRANK’S MOTHER INTERRUPTS.
On hearing this question, Mrs. Rae Frank, mother of the accused, turned in her seat beside Frank and faced the solicitor.
“No, nor you either!” she shrieked, her face flushed and her eyes flashing.
Only the prompt and determined work of the deputies prevented the court being thrown into an uproar.
Attorney Arnold, in a sympathetic voice, said, “Mrs. Frank, if you stay in the court room, I’m afraid you’ll have to hear these vile, slanderous lies, and I would suggest that if you have reached the limit of your patience you might retire for a little while.”
Mrs. Frank arose and was escorted through the crowded court room to the door by Attorney Herbert Haas and some other men of the Frank party.
Mrs. Lucile Frank showed considerable emotion for the first time since her husband’s trial began and the face of the accused man flushed when the solicitor hurled his sensational question at the witness.
“Do you know Tom Blackstock?” asked the solicitor.
“No.”
HURLS SENSATIONAL QUESTIONS.
“Did you ever talk with L. T. Courcey or Miss Myrtis Cater? You never heard any of them say that Frank would walk into the dressing room without offering any explanation for his intrusion?”
“No.”
“You didn’t hear of him trying to put his arm around Miss Myrtis Cater and trying to shut the door just before the factory closed one afternoon?”
“No.”
“You didn’t hear how he stood and looked at poor little Gordie Jackson? You didn’t hear how it was the talk of the factory?”
“No.”
“You didn’t hear what he tried to do to Luis McDonald and Rachel Prater?”
“No.”
“You didn’t hear what he said to Mrs. Pearl Dodson when he stood talking to her and her daughter with money in his hand, and you didn’t hear how she hit him with a monkey wrench?”
“No.”
“You didn’t talk to Mrs. C. D. Dunegan and Miss Marian Dunnegan about him?”
“No.”
“You didn’t hear how he was accustomed to slap girls and how he had nude pictures in his office? You did not talk to Mrs. Wingard, of 45 Mills street, about him, did you?”
“No.”
The solicitor finished his examination suddenly at this point and sat down, silence falling over the court.
Attorney Arnold arose and called for the letter written by the witness and his business associates to the grand jury. The solicitor walked over to Mr. Arnold and whispered to him and then said to the court, “Your honor, we are informed that Daisy Hopkins is about to leave. We want her held here.”
“We don’t think she is going to leave, but we are through with her. You’ll have to keep her yourself.”
The court instructed Deputy Miner to order the witness to remain within the jurisdiction of the court until called.
Mr. Arnold then over the objection of the solicitor, read to the jury a letter addressed to W. D. Beattie, signed by the witness, by Robert L. Cooney and others, asking that the grand jury investigate Jim Conley’s connection with the murder case.
With this Mr. Arnold concluded, and Mr. Dorsey resumed the questioning of the witness, and started to ask the witness whether or not the grand jury acted on his suggestion.
Mr. Arnold anticipated the question and said to the court: “We object to anything about what the grand jury did or did not do. It may be that my friend here, with his official position as solicitor general, acting as he has in this case, had the grand jury under his thumb and prevented an indictment of this negro.”
The objection of the defense was sustained, and the witness was dismissed, leaving Solicitor Dorsey smiling.
DR. OWENS TAKES STAND.
Dr. William Owens was called to the stand.
Dr. Owens testified that he was with Mr. Walker and others when they went through an enactment of Jim Conley’s story about moving the body of Mary Phagan. With the assistance of Mr. Arnold, he showed on the diagram the different points of interest.
“You followed carefully the directions in this paper, which has been read to the court, did you not?”
“Yes.”
“Leave out the eight minutes in the wardrobe and the time it took to write the notes. How long were you in going through this performance?”
“Eighteen and a half minutes. We went through the scenes exactly as laid down in this paper and quickly as we possibly could, at the same time reading the instructions.”
“Now add the eight minutes in the wardrobe, and ten minutes for the writing of the four notes. What time would that make for the whole business?”
“Thirty-six and a half minutes.”
HOOPER CROSS-EXAMINES.
Attorney Hooper cross-examined the witness.
“Where did you start this performance?” he inquired.
“First we made an inspection trip through the basement and saw the place where they told us the body was found.”
“Where did you start your calculating?”
“At the top of the stairs.”
“And you read out the directions, did you?”
“No, I held a watch in my hand and Mr. Haas and Mr. Wilson read the paper.”
“Oh,” remarked Mr. Hooper, showing mild surprise. “Mr. Haas was with you?”
“Yes.”
“Who played the part of Conley?”
“Mr. Brandt took the part of Conley.”
The witness continued: “The others followed him and gave directions, except sometimes when the directions were anticipated.”
“Then if a man had been doing this of his own volition, the time would have been shorter?”
“Somewhat shorter, though not much,” said the witness.
“And you didn’t have the men in the two principal roles very much excited and anticipating some one catching them, did you?”
“No.”
“You went through it slowly and deliberately, did you?”
“I wouldn’t say so.”
“Tell us about tying up the body.”
“Well, Mr. Brandt made motions like he was tying it up.”
“Did he let the body fall?”
“Oh, yes,” said the witness.
“He didn’t have to jump out of the way of the blood, did he?” inquired Mr. Hooper.
“No.”
“The knots didn’t come untied, did they?” pursued Mr. Hooper.
“No.” The witness went into an explanation that it was a 110-pound sack, or one supposed to weigh that, which they were carrying. There was sawdust in the sack, he said.
“There was no cord around its neck, choking it to death, was there?”
“Oh, no,” said the witness.
The witness declared that the actors of the scenario lost only five or ten seconds time in the whole operation and that was a point where the schedule directed a pause. The witness said they dragged the sack back from the elevator to the point in the basement where the body was found. The witness described the floor of the basement as soft black dirt.
“Then it wouldn’t hurt a body to drag it over that floor?” asked Mr. Hooper.
“Not except at the boiler, where there are some cinders packed down,” said the witness.
Mr. Hooper went into minute detail in questioning the witness about the scenario which he and the others had enacted, in as apparent endeavor to show its unreliability from all angles. To the most of the questions, Dr. Owen replied that the movements were made as quickly as was reasonably possible. Fleming, said he, enacted the part of Frank.
BRANDT’S IDENTITY.
In answer to Attorney Hooper’s questions, Dr. Owens said that he did not know what the occupation of Brandt is, although he has been acquainted with Brandt for some ten or twelve years. He said that Fleming is a contractor.
Attorney Hooper brought out by his questioning that Mr. Fleming helped Brandt to carry the pseudo body along the second floor, letting the ears at the corner of the sack represent Mary Phagan’s feet and her arms. He said that Brandt, in the character of Conley, found just as the negro did, that it was impossible to carry the body on his arm.
There was laughter in court when it was developed from the witness that Mr. Haas was playing the reading part of Frank, whereas Mr. Brandt had the more difficult one of Conley with his hard physical work. The witness testified that another man named Wilson took part in the action. Dr. Owens said he thinks Wilson works at the Atlanta Baggage and Cab company.
“That’s Mr. Haas’ company, isn’t it?” inquired Mr. Hooper.
The witness replied that he did not know. He said that Mr. Fleming is a contractor.
After the body was put on the elevator, Herbert Schiff pulled the rope, the witness said.
“What character was Mr. Schiff playing in the scene?” asked Mr. Hooper.
“He just pulled the elevator rope. He was the elevator boy,” said the witness. The witness told about all of them riding down on the elevator, he holding a watch all the time, and about the sack being dragged back to where the body was discovered.
“You had to stop in the basement to read the directions, didn’t you?”
“Yes, I do recall that we had to stop.”
“What did you read them by?”
“There was an electric light down there, and a gas jet was lit.”
The witness was then examined in considerable detail as to just where he stood while he read the directions.
“When you stopped to read the directions, the procession stopped, too, didn’t it?”
“No; I went on ahead myself and read the directions.”
“How many men went down into the basement?”
“I believe there were five in all.”
“When you got down in front of the boiler, was the body being carried or dragged?”
“Now let me see. I don’t believe I recall.”
CARRYING OUT SCHEME.
“You were trying to carry out their scheme, were you?”
“Yes. It was furnished to me as a copy of the testimony Conley gave here in court.”
“How was the body carried after you left the elevator? Was it carried bodily or was it dragged?”
“I don’t believe I can recall exactly, although I know it was carried one time and dragged the other time, although I can’t remember whether it was dragged or carried first.”
“How was the body carried the time you did carry it?”
“It was carried in ‘Conley’s’ arms across his abdomen.” (Laughter in court.) “I should say the time was about the same in both cases, when it was carried and when it was dragger [sic].”
“Do you think you could drag the body as fast as you could carry it, doctor?”
“Yes, I think so.”
“Really, now, doctor, you can’t remember positively whether the body was dragged either time, can you?”
“Yes, I am positive it was dragged one time.”
“What did Conley do then, after he had disposed of the body?”
WHICH FRANK?
“He wiped his hands and came away.”
“Which one of the ‘Franks’ was it that hit up against ‘Conley?’”
“I don’t recall which ‘Frank’ it was. It was dark in the elevator.”
“Did you stop below the second floor?”
“Yes, we stopped just below the second floor and ‘Frank’—I think he was being played by Haas this time—fell with a perceptible sprawl.”
Mr. Hooper continued the cross-examination of the witness with the evidence intention not of trapping the witness seriously, but of showing up the performance as a farce.
The witness was not certain which was the private office of Frank, the one they first entered or the one they entered later. One of the passages in the scenario contained a statement, “All of a sudden Mr. Frank looked out the door and exclaimed.” Mr. Hooper laid comical stress on this in the numerous questions that he put to the witness about it.
DIDN’T LIGHT CIGARETTE.
The witness admitted that they did not have other people to take other parts in Conley’s story. Mr. Hooper brought cut from the witness each transition of “Frank” from Haas (the reading Frank) to Fleming (the acting Frank). Mr. Hooper caused the witness to admit that the “Conley” of the performance did not get into the wardrobe because he was too big. Mr. Hooper stressed laughingly the admission that “Conley” forgot to light the cigarette at the proper place in the proceeding. Dr. Owens admitted that he did not time the several pauses made, but that they were all short—from five to ten seconds, he said.
Handing a letter to Dr. Owens which had been received by the foreman of the grand jury, Attorney Hooper asked him if he could identify it as a letter which he had sent. The witness said yes, that he had written it.
“At whose instance?” asked Attorney Hooper.
“Well, partly at the instance of Mr. Leonard Haas and partly at my own.”
Attorney Hooper asked the witness why he had sent it.
Dr. Owens replied that the attitude of the people of Atlanta since the arrest of Frank has been one of prejudice, and that shortly after Frank’s arrest he, the witness, met Leonard Haas on the street and that Haas “said to me—“
Attorney Hooper interrupted, admonishing the witness that he could not detail a conversation. Attorney Arnold contended that the conversation was pertinent and should be heard. Judge Roan ruled with Attorney Hooper.
Attorney Hooper picked up another letter (the third which had been shown to the witness since he came upon the stand) and asked the witness whose name was signed to that.
“A. F. Fleming,” replied the witness.
“Is he the Fleming who helped you stage this play at the pencil factory?” asked Attorney Hooper.
“I don’t know,” said the witness.
Attorney Hooper asked: “Well, you don’t know any other A. F. Fleming, do you?”
The witness replied, “no.”
Attorney Arnold took the witness on re-direct examination. He took from the solicitor the first of the two letters shown together to the witness.
AS A MATTER OF CONSCIENCE.
“Why did you write this, Dr. Owen?” asked Mr. Arnold.
Attorney Arnold then read the letter. It was to the effect that at the time of writing Dr. Owens believed that out of the people of Atlanta he found very few who believed in the guilt of Leo M. Frank. The letter said that it is the writing of Dr. Owens was discharging what he regarded as his duty, which weighed heavily on his conscience and which he could not forego doing.
“When you went through this pantomime, you didn’t stop to laugh like my friend Hooper, did you?”
“No, sir.”
“It was given as Conley’s testimony, and if it was absurd it was not your fault was it?”
“No, sir.”
Attorney Hooper asked: “Who dictated this letter?”
“I did,” replied the witness.
He added that he had submitted it to a prominent local jurist before sending it, to see if he had a legal and a moral right to do so.
The witness was excused. Judge Roan announced that he would like to have another witness called, although the hour was 5:40. The name of Charles Lee was called as the defense’ next witness, but its owner was not to be found, nor was any other witness there. Some mysterious person had gone upstairs and excused the whole flock.
“I had a whole carload of witnesses up there, your honor,” said Mr. Arnold. “A hundred of them. But they’re gone now.”
Court then adjourned until 9 o’clock Thursday.
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