Defense Threatens a Mistrial

Another in our series of new transcriptions of contemporary articles on the Leo Frank case.

Atlanta Georgian
August 2nd, 1913

Newspaper on Judge’s Desk Causes Protest


A genuine sensation was sprung at the trial of Leo M. Frank Saturday morning when Luther Rosser and Reuben Arnold, attorneys for the defense, asked the State to consent to a new trial on the ground that Judge Roan had allowed the jury to catch a glimpse of a headline in the first extra of The Georgian.

Judge Roan had laid the paper on the stand in front of him, and, according to the defense, the headline across the first page could be read by the men in the jury box.

The headline said: “State Adding Links to Chain.”

The defense’s lawyers went into immediate conference with the judge, and a few minutes later asked Solicitor Dorsey to consent to a new trial. The Solicitor refused.

Rosser Asks Explanation.

Rosser and Arnold then came into the courtroom and asked that the jury be withdrawn.

Rosser addressed the court:

“Your honor inadvertently displayed a newspaper when you came in just now. One side was turned up with large red letters reading: ‘State Adding Links to Chain.’ Every member of the jury read it. I saw them leaning forward to see it.

“We don’t want to make a motion for a new trial, but we want this jury called back and such explanation made by your honor as will eliminate any harm that might have been done by the jury seeing this paper.”

Solicitor Dorsey Objects.

Dorsey objected to Rosser’s request of Judge Roan.

“I object to your honor making an explanation as to an isolated instance,” said Dorsey. “It is only fair to the State to call that jury back and ask if it had seen any newspaper. It is only fair to the State to tell that jury that this objection of protest was registered by the defense. The jury must have seen newspapers on the streets in going to and from the hotel that had headlines in them eminently unfair to the State’s case. I will ask your honor to explain the matter fully to the jury.”

Judge Roan heatedly said: “Call the jury back and I will tell it what I see fit.”

Attorney Rosser during the Solicitor’s speech spoke in undertones, threatening a mistrial if the prosecution’s request was granted.

Judge Warns Jury.

Judge Roan said to the jury when the tribunal had been returned to the jury box:

“Gentlemen of the jury, this is an important case. You will have to be extremely cautious and extremely careful. You are to try this case from the evidence and from nothing else. It has been suggested that you have been able to se[e] some headlines or some writings in the newspaper which may have influenced you in your judgment on this case. I desire to tell you that you are the ones trying this case, and I desire to warn you again that nothing you see in the newspapers on the streets or in the courtroom should have nay influence upon you either in respect to the case of the State or that of the defense. Let the case proceed.”

The [e]xamination of witnesses proceeded.

The defense rallied sharply Saturday in a vigorous impressive attack on the sensational testimony of Dr. H. F. Harris, who declared Friday afternoon that Mary Phagan was killed within a half-hour after she ate dinner April 26, and that she came to her death by strangulation.

From one of the State’s own witnesses, Dr. J. W. Hurt, County Physician, Reuben Arnold obtained the important admission that the time it takes to digest cabbage depends on the individual and that the only way to determine with certainty if strangulation is the cause of death is by an examination of the lungs. He admitted the lungs were not examined.

Attacking the testimony of Dr. Harris, who collapsed while testifying on the stand Friday, Arnold asked the witness if Dr. Harris’ statement that Mary Phagan had come to her death within a half hour of the time she ate her noon meal was not the wildest sort of a guess. Harris had based his conclusions on the fact that the cabbage he had found in her stomach had undergone only the slightest digestion.

“Is it not true that cabbage is one of the hardest foods to digest and that the average time required to digest it is from 3 1-2 to 4 hours?” asked Attorney Arnold.

Dr. Hurt replied that he thought this was so.

No Proof in Cabbage.

Arnold then showed the specimens of cabbage taken from the stomach of the murdered girl, and called attention to the fact that if it had not even been masticated, and that therefore it might have been in her stomach for several hours before she was killed.

Dr. Hurt accompanied this statement by the one, equally vital, that no examination was every made of the murdered girl’s lungs. From this testimony the defense will be able to argue that the State had no substantial foundation for its charge that the girl was strangled to death.

Arnold also forced Dr. Hurt reluctantly to admit that it was impossible for him to state positively either that the blow on the back of Mary Phagan’s head had produced unconsciousness or that, on the other hand, it might not have been the actual cause of her death.

State Adds to Chain.

The State Saturday continued to strengthen the web of circumstantial evidence in which it seeks to enmesh Frank by preparing to introduce additional testimony showing Mary Phagan arrived at the National Pencil Factory at 12:05 or before.

As the case stood Saturday morning, these are the strong links in the State’s case:

Mary Phagan left her home at 11:45, according to her mother, after having eaten some cabbage.

The girl arrived at the factory between 12:05 and 12:10, according to Frank’s own statement before the Coroner’s jury.

Monteen Stover looked into Frank’s office between 12:05 and 12:10 and says he was not there.

Dr. H. F. Harris, Secretary of the State Board of Health, testifies that the condition of the cabbage taken from the girl’s stomach shows conclusively that she died within about half an hour after it was eaten. This would make the time of death about 12:10—a few minutes before or after.

Claims Negro Is Eliminated.

Mrs. Arthur White testifies that when she left the factory at about 1 o’clock a negro, presumably Conley, was sitting on a box on the first floor. This, according to the State, eliminates the negro as the slayer, because, according to its expert evidence, the girl must have been killed some time before that.

The defense’s attack on all this testimony and reasoning was expected to be spirited and bitter, and until it has been made it is impossible to determine how much weight testimony like Dr. Harris’ purporting to fix almost to the minute the time it takes to digest cabbage will have with the jury.

Helen Ferguson, a companion of Mary Phagan and an employee of the […]


Dr. Hurt Says That Undigested Cabbage Does Not Prove Time of Death


[…] factory, was the first witness to be called when court resumed Saturday morning. The greatest crowd of the week besieged the courthouse clamoring for admission.

Pay Refused.

Solicitor Dorsey examined Miss Ferguson.

Witness said she was an employee of the factory.

Q. Were you at work at the factory Friday, April 25?—A. Yes.

Q. Did you work that day or just go there?—A. I went to the office about 10 o’clock.

Q. What conversation did you have there?—A. I asked for Mary Phagan’s money and was told that I could not get it. I talked to Mr. Frank.

Q. Did you ever get her pay before?—A. Yes, but not from Mr. Frank.

Rosser took the witness on cross-examination.

Q. Did you know who paid off?—A. No.

Q. Did you ever get Mary Phagan’s money from Mr. Frank?—A. No.

Q. Did you work in the metal department with Mary?—A. Yes.

Says Frank Wrung Hands.

Attorney Rosser raised an objection to Wagoner on account of his having been in the courtroom for twenty minutes Wednesday. Wagoner stated that he had heard nothing and Judge Roan allowed him to testify.

Q. Where were you Tuesday, April 29?—A. Across the street from the National Pencil Factory.

Q. What did you see?—A. I saw Frank come to the window, wringing his hands and looking down. He did it about a dozen times.

Q. Was he nervous or composed?—A. Nervous.

Q. Were yo in the automobile when he was taken to the police station?—A. Yes.

Q. Was he nervous?—A. Yes. His leg was next to mine. It shook very much.

Rosser took the witness on cross-examination.

Q. What were you doing in front of the factory?—A. Watching.

Q. Do you know whether Frank was arrested?—A. He was not.

Q. Could you see whether anyone was in the office with him?—A. No.

Dr. Hurt Called to Stand.

Dr. J. W. Hurt followed Wagoner on the stand.

Q. What is your business?—A. County physician.

Q. How long have you held this position?—A. Since January 1. Four years at another time.

Q. What are your duties?—A. To appear at all inquests.

Q. Where did you graduate?—A. I attended the old College of Physicians and Surgeons and also studied in New York.

Q. Did you see the body of Mary Phagan?—A. Yes; Sunday morning, April 27.

Q. Describe to the jury how she appeared.—A. I went to the undertaking establishment. She had a scalp wound on the left side of the head, about two inches long. The right eye was bruised. There were some broken places on the cheek and forehead, scratches on the right and left elbows and scars on right and left legs just below the knees. There was a cord around her neck. It is my opinion that she died from strangulation.

Q. Was this the cord? (Dorsey displayed a long hemp cord.)—A. Yes, so it appears.

Q. Was there any swelling in the neck?—A. Yes.

Q. What would that indicate?—A. That the cord was put around her neck before death.

Q. What was the appearance of the scalp wound?—A. It appeared to have been made by a blunt instrument from below striking upward.

Looked Like First Bruise.

Q. What about the wound around the eye area?—A. The skin was not broken. It looked like it might have been made with a soft instrument.

Q. Could a fist have done it?—A. Yes, it was quite possible.

Q. What do you think would have been the effect of these blows? Were they sufficient to have caused death?—A. No. I would think the blow on the back of the head would have caused unconsciousness.

Q. Did you find any evidence of assault?—A. I did not discover any evidence of violence. There was some blood, but I could not say whether it was from a wound or not.

Q. What was the nature of the wounds on the elbows and the leg?—A. I would say they were made after death.

Attorney Arnold took the witness on cross-examination.

Q. How did these scratches appear? Could they have been made by the body being dragged by the heels?—A. No. If she were dragged, I should say she was dragged face forward. The scratches ran back as though she was dragged forward.

Cut Two and Half Inches Long.

Q. How long did you say the wound on the scalp was?—A. Let me refer to my notes.

Q. You said it was two and a half inches long and Dr. Harris said it was one and a half inches long. I want to know which is right.

“Two and a half inches,” said Dr. Hurt, after looking at his notes.

Q. Did you measure the wound when Dr. Harris dug up the body nine days later?—A. No.

Q. You are not absolutely certain about this examination?—A. I am not absolutely certain, but judging from the best of my ability.

Q. All expert testimony is guessing more or less, isn’t it? It is just a question as to who can guess the best, isn’t it?—A. I expect you are more familiar with expert testimony than anybody else, aren’t you?

Skull Not Fractured.

Q. You didn’t see any damage on the side of the skull, did you?—A. No, the skull was not fractured.

Q. The brain was not injured?—A. There was some slight trace of concussion on the inside.

Q. You had to be looking for it to see it, didn’t you?—A. No, it could be easily seen.

Q. Did you ever hear of a test to see whether a hemorrhage on the inside would produce unconsciousness?—A. No.

Q. Did you ever hear of such a question or strain on the medical profession as to answer a question like that?—A. No.

Q. Were you ever asked before to examine the inside of a skull to determine whether a person was knocked unconscious?—A. No.

Q. Did you ever hear of a person being killed from a blow on the head and there being no scar on the outside?—A. No.

Q. Have you ever heard of persons living after a fracture having the inner and the outer table trepined and a piece taken out and then living?—A. Yes.

Results Always Uncertain.

Q. You can reduce almost every faculty of the brain without producing death? The sight, the hearing?—A. Yes.

Q. Can you tell me what faculty of the brain was located where this blow was struck?—A. No, I don’t believe I can.

Q. One thousand different effects could be produced without producing death or unconsciousness?—A. Yes.

Q. What makes you say that one little blow could have produced unconsciousness?—A. I just believe it.

Q. That little hemorrhage was not what enabled you to say that she was knocked unconscious?—A. No. The exterior appearance was on what I based my opinion, but I strengthened it by the extent of the contusion on the inside.

Q. How do you know strangulation killed her?—A. I could find no other cause.

Q. What about the windpipe and the lungs in strangulation?—A. What do you mean?

Q. How do the lungs appear?—A. Congested.

Q. You never examined the lungs?—A. No.

Q. Why do you say strangulation caused her death?—A. Because I found the rope deeply imbedded in the neck.

Not Sure About Assault.

Q. Looking at that girl that morning would you say that she was ravished?—A. I haven’t said so.

Q. Will you say so?—A. I do not know.

Q. You found no external signs of violence?—A. No, but my examination was not final.

Mr. Dorsey objected and was sustained.

Q. There are a great many things to cause a little inflammation?—A. Yes.

Q. Were you present at the first post-mortem examination?—A. Yes.

Q. Dr. Harris took the body a second time, didn’t he?—A. I don’t know.

Q. Dr. Harris is a sort of specialist on post-mortems, isn’t he?—A. I don’t know.

Solicitor Dorsey made a side remark that Mr. Arnold’s cross-examination of the witness was a pedantic parade.

Q. Doctor, it depends on the individual just how soon cabbage is digested, doesn’t it?—A. Yes, some digest it sooner than others.

No Rule for Digesting Cabbage.

Q. Isn’t each man a law unto himself?—A. Yes, more or less.

Q. Cabbage is one of the hardest things of the world to digest, isn’t it?—A. Yes; it is generally regarded as hard.

Q. Doesn’t it take from three to four hours to digest cabbage?—A. Yes; three or four hours to thoroughly digest it.

Q. It depends a great deal on how well it was chewed, and how much saliva flowed down, doesn’t it?—A. Yes. Masticating helps digestion.

Q. Suppose a little girl in a hurry to catch a car hurriedly ate some cabbage and allowed it to go down unchewed. Wouldn’t it take much longer to digest the unchewed part?—A. Yes.

Q. Don’t you think a doctor is making a mighty wild statement to get up here and state that a piece of unchewed cabbage had not been in a stomach—

“I object,” said Dorsey. “That is a question for a jury, and not Dr. Hurt.”

“I thought it was wild,” said Mr. Arnold.

“I object to that,” returned Dorsey.

“I withdraw it,” said Mr. Arnold.

“It was entirely gratuitous and should never have been put in,” said Solicitor Dorsey. The Solicitor was sustained.

Death Stops Digestion.

Q. Does death stop digestion?—A. Yes, sir; I think it does.

Q. When a person becomes unconscious, does digestion stop?—A. I rather think so.

Q. If you ate something and went to sleep, digestion would continue?—A. Yes.

Q. Why, then, does digestion stop when a person is unconscious?—A. It is an unnatural unconsciousness.

Q. Aren’t the gastric juices and blood the only two things that have anything to do with digestion?—A. Yes.

Q. Well, do they die when a person becomes unconscious?—A. No, but the stomach is partially paralyzed.

Q. Didn’t you say it was a wild guess to say how long she was unconscious until the time she died?—A. No, I don’t think I did.

A mass of testimony followed that is unprintable. In the course of it, Dorsey said:

“I object to these comparisons.”

Judge Roan—He has not asked any question that was a comparison.

Arnold—I withdraw the question.

Dorsey—I thought so.

Arnold—Then I won’t withdraw it.

Rosser—Don’t pay any attention to Dorsey, Rube.

Arnold—All right; I withdraw it.

The witness left the stand and was followed by Detective R. L. Waggoner.

The testimony of Dr. Harris came as a startling climax to Friday’s session of the Frank trial. The State had been getting along, only indifferently well up to this point.

Darley Proves Disappointment.

N. V. Darley, associated with Frank in the supervision of the factory’s administration, had given promise of being one of the State’s star witnesses, but he later had proved a disappointment from the prosecution’s viewpoint and under the cross-examination of Reuben Arnold had developed about as good a witness for the defense as the State has called so far.

Mrs. Arthur White, wife of one of the employees who was working on the fourth floor of the factory the day of the crime, possibly added a weak link in the chain of circumstantial evidence that the State is welding about Frank, but the most that she could say was that Frank was startled when she entered his office at 12:30—just after the girl had been murdered, according to the State’s theory—and that Frank did not put on his hat and coat to leave as he said he was going to do when he came to the fourth floor at 12:50 to tell the three persons there to go or be locked in.

One piece of her testimony which is expected to play an important part in the later development of the State’s theory was that she saw a negro lounging by the steps as she left a few minutes before 1 o’clock.

Four Others Called.

The other witnesses of the day were Call Officer W. F. Anderson, Stenographer L. F. Parry, Albert McKnight, husband of the servant girl in the home where Frank and his parents lived, and G. C. Febuary, private secretary to Chief of Detectives Lanford.

Anderson told of his efforts to get Frank on the telephone the morning of the tragedy. Under cross-examination, he was led to repudiate in part some of the testimony he had given at the Coroner’s inquest. Before the Coroner he had said that he negro Newt Lee could not have seen the body of Mary Phagan from the point where he declared he stood when he made his grewsome discovery.

Attorney Rosser called his previous testimony to his attention, but the policeman asserted that he was mistaken when he made his first statement and that it now was his opinion that Lee could have seen the body all right.

Parry was called to identify the testimony of Leo Frank before the Coroner’s jury and later by the defense was asked to identify that of Lee and other witnesses and declare if it was a correct statement of what they had said at the preliminary inquiry.

Gets in Frank’s Story.

Solicitor Dorsey called Febuary to get in evidence the first statement that Frank made to the police after he was taken to headquarters. In this statement Frank said that the Phagan girl came to the factory for her money between 12:05 and 12:10, possibly 12:07.

McKnight’s most important testimony was that he had been in the Frank home at 1:30 the afternoon of April 26, and had seen Frank come home and rush away without getting anything to eat. He said that looking into a mirror from his vantage point in the kitchen he had obtained a good view of Frank as he entered the house.

He declared that all Frank did was to go to the sideboard and a moment later leave the house. Frank at the Coroner’s inquest said that when he went home at noon he ate luncheon with his father-in-law and lay down for a few minutes on the lounge. McKnight said he had a good view of the table and that Frank did not sit down.

Darley, after admitting to Solicitor Dorsey that Frank was nervous, pale and trembling the day after the tragedy, added under cross-examination that this condition was nothing unusual for the young factory superintendent. He said that frequently when Frank was excited he ran his hands through his hair and that he had seen Frank a thousand times rub his hands nervously.

He also declared that on two occasions in particular he had witnessed Frank in the same condition he was in Sunday at the factory. One was when Frank saw a street car run down a child, and another when he had an altercation with one of the factory officials.

Darley testified it was nothing unusual for scratch pads like the one found in the basement near Mary Phagan’s body to be discovered in any part of the factory. He said the same of the pay envelopes like the one found by Mary Phagan’s machine. He asserted that the envelopes were scattered on every floor of the factory every pay day. A ripple of merriment was caused when Attorney Arnold, referring to R. P. Barrett and his discoveries of pay envelope, blood spots and strands of hair, designated him as “Christopher Columbus Barrett.”

After a sharp fight between the attorneys, Attorneys Arnold and Rosser succeeded in getting before the jury that other persons as well as Leo Frank were excited and nervous after the tragedy. Judge Roan was inclined at first to sustain the prosecution’s objections, but later decided that testimony of this sort might be admitted in order that the defense might show that these signs of nervousness need not be taken as indications of guilt.