Another in our series of new transcriptions of contemporary articles on the Leo Frank case.
August 2nd, 1913
DR. HURT’S TESTIMONY NOT CONFIRMATORY OF EVIDENCE GIVEN BY DR. H. F. HARRIS
On Cross-Examination, Dr. Hurt Admits That Cabbage Is Considered Very Difficult to Digest and That Under Some Conditions as Much as Three Hours and a Half Might be Required Before the Process of Digestion Was Completed
PHYSICIAN ON STAND GREATER PART OF MORNING AND UNDERWENT RIGID CROSS-EXAMINATION BY DEFENSE
He Found No Evidence of Violence, He Declared — Detective Waggoner, Chief Beavers, Detective Bass Rosser, Patrolman Lassiter and Miss Ferguson Testify — Court Adjourns Until Monday Morning at 9 o’Clock
Dr. J. W. Hurt, coroner’s physician, who examines the body of little Mary Phagan, was the principal witness introduced by the state at the Saturday morning session of the Frank trial. Dr. Hurt’s expert testimony was the subject of fierce contention between the lawyers for the defense and the state. Attorney Reuben R. Arnold succeeded in drawing from the physician testimony to offset that given on Friday by Dr. H. F. Harris. While Dr. Harris testified that he found evidence of violence of some sort having been committed, Dr. Hurt declared he did not find any evidence that would show a criminal attack of nay [sic] kind.
Dr. Hurt further admitted, in answer to Mr. Arnold’s questions, that cabbage was a difficult article of food to digest and that under some circumstances it might require three and one-half hours before the process of digestion was complete. This testimony was brought out by Mr. Arnold fro the evident purpose of disputing Dr. Harris’ conclusion that the state of digestion the cabbage was found in showed that Mary Phagan must have been killed within a half hour or forty-five minutes after eating.
When court convened Miss Helen Ferguson was cal[l]ed to the stand and testified that Frank refused to let her have Mary Phagan’s pay on Friday afternoon, the day prior to the murder, and that she was told by some one in Frank’s office that Mary would have to come to the factory Saturday and draw her own pay. Attorney Rosser drew from the witness on cross-examination the admission that she had never before drawn the Phagan girl’s pay and that she didn’t know whether Frank knew her name or not.
R. L. Waggoner, one of the city detectives, was next called and told of how Frank twisted his hands on Tuesday, April 29, at the National Pencil factory. The witness said that he accused appeared at the window of his office twelve times in a half hour and each time twisted his hands and looked down as if he was in a very nervous state. Detective Waggoner said that he had been sent there to watch Frank and the factory prior to the accused’s arrest.
Patrolman Lassiter, on whose beat is the National pencil factory, told the court of finding Mary Phagan’s parasol in the bottom of the elevator shaft on the Sunday morning after the tragedy. The witness also testified that the floor of the basement showed that something had been dragged from the elevator shaft.
Chief of Police J. L. Beavers was another witness and he testified simply that he had seen the blood spots on the second floor of the factory.
Had Judge Roan not adjourned court about 12:20 o’clock, Newt Garner, special deputy for the solicitor, and Detective Campbell, had an automobile at police headquarters during the morning, ready to rush the negro to the court, when notified by the solicitor.
There will be no afternoon session, court having adjourned until Monday morning at 9 o’clock.
MORNING SESSION BEGINS.
All women who had arrived at the court house by 8:30 o’clock were admitted and were allowed to select their own seats before the rush began. About fifty availed themselves of this concession to their sex. Leo M. Frank, the accused, entered the court at 8:40 o’clock. The jury entered at 8:55. Judge Roan mounted the bench and convened court at 9 o’clock.
Helen Ferguson, a co-worker with Mary Phagan in metal room of the National Pencil factory, was called to the stand as the first witness.
Miss Ferguson stated that she works now for the Marcus Loeb company, but that for two years she worked for the National Pencil factory and was employed there on Friday, April 25. About 7 o’clock on the evening of Friday she went to Mr. Frank’s office, she testified, and asked him for Mary Phagan’s pay. He refused to let her have it, and she left. On former occasions some months before she had gotten Mary Phagan’s pay for her.
Attorney Rosser took up the cross-examination. Miss Ferguson admitted that she had never gotten Mary Phagan’s pay from Frank. It was about 7 o’clock in the evening when she asked for the money, and that several men whom she thought to be members of the office force were in the office with Frank.
She did not think Frank knew her name, she said. She asked him for Mary’s number and her pay, saying she had forgotten Mary’s number. She thought Frank knew her face, she testified. Some member of the office force told her there would be somebody in the factory Saturday and that Mary could get her pay then. She testified that she had worked in the metal room for two years and never had seen Frank speak to Mary.
City Detective R. L. Waggoner was called to the stand.
“You’ve been in the court room before, haven’t you?” demanded Attorney Rosser, when Waggoner had been sworn.
“Yes. I was in here about twenty minutes Wednesday afternoon,” answered the witness.
Solicitor Dorsey explained to the court that on Wednesday afternoon witness had not been subpoenaed.
“How did you happen to be here?” asked Attorney Rosser.
“I was near and came in,” said the detective. He left of his own accord, then, he said, and later when he was subpoenaed as a witness he remained out of the court room.
He proceeded then to testify. He has been a member of the police force about four years she said.
“On Tuesday, April 29, where were you?” asked the solicitor.
“A little after 11 o’clock in the morning I was in front of the National Pencil factory.”
FRANK WAS NERVOUS.
“Did you see Frank, the defendant?”
“What did you see him doing?”
“I could see Mr. Frank through the window in his office. I was standing across the street. He would come to the window, look down, and twist his hands. He did this about twelve times in thirty minutes.”
“Was Frank nervous or composed on that morning?”
“Well, when Detective Black came up to the factory in an automobile, to take Frank to the police station, I got in between Frank and Black and his knee was shaking all the way to the station.”
Attorney Rosser took the witness.
“How much do you weigh?”
“About 220 pounds.”
“How much does Black weigh?”
“About 200 pounds, I guess.”
“And Frank weighs about 120 pounds—and you had him between you, didn’t you?”
“Oh, I thought you said you had him between you.”
“No, sir; I said I sat between Frank and Black.”
“Now when you were standing in the street, Mr. Waggoner, how far were you from the window of the pencil factory?”
“About fifty feet.”
SENT TO WATCH FRANK.
“You don’t know whether Frank was talking to anybody, do you?”
“He wasn’t talking to anybody when he was looking out of the window.”
“What were you doing there?”
“I was sent there to watch Frank and the factory?”
“You knew he was going to be arrested, then, didn’t you?”
“No, sir, I didn’t.”
“Do you mean to tell me that you didn’t know he was going to be arrested?”
“Well, I thought he was.”
“You knew he was detained at the station house the day before for three or four hours, didn’t you?”
“No, sir. I didn’t know he was detained there.”
DR. HURT TESTIFIES.
Dr. J. W. Hurt, the coroner’s physician, was called to the stand.
“What is your profession?” interrogated the solicitor.
“I am a physician.”
“How long have you been a physician?”
“Have you any connection with the county?”
“Yes, I am a county official.”
“What kind of a county official?”
“How long have you held this position?”
“This time since the first of January.”
“Have you ever held it before?”
“About four years.”
“How long since your previous time as county physician?”
“About three years.”
“As county physician, what are your duties?”
“I am required to attend all inquests.”
“What college did you graduate from?”
“I graduated at the old Atlanta school of regular medicine. I took my post graduate course at the Polyclinic in New York.”
“Did you ever see the body of Mary Phagan? If so, when?”
“Yes, at the undertaker’s shop on Sunday morning, April 27.”
“Now, tell the jury the condition in which you found this body.”
“I was called to Bloomfield’s undertaking establishment on South Pryor street by phone about 9 o’clock Sunday morning, April 27. The coroner called me, I saw Mary Phagan’s body there. There was a scalp wound on the rear left side of the head about two and a half inches long. It was about four inches back from the top of the left ear. The wound penetrated through the scalp to the skull. The right eye was black and contused. There were minor scratches on the face and cheek and contusions on the forehead though the skin was not broken. The skin on the other cheek was broken. There was a wound two and a half inches long on the left leg about three inches below the knee. There were scratches on both the left and right elbows. There was a cord around the neck drawn tightly into the skin.”
The solicitor handed to Dr. Hurt one of the cords from his table. The witness examined it. He declared it looked like the cord he found around the girl’s neck.
“What caused Mary Phagan’s death?” asked the solicitor.
DIED OF STRANGULATION.
“In my opinion she died from strangulation produced by the cord. There was another piece of cloth laying loose over her chest and around her hair, but the cord was next to the skin and under the hair.”
“Was the cord imbedded in the skin?”
“Yes, it had made a considerable indentation in the neck.”
“You saw the knot in the cord.”
“Was it imbedded in the skin, too?”
“Yes, on the side of the neck.”
“Was there any swelling in the neck?”
“What did that indicate?”
“It indicated great contusion and strangulation.”
“Was the cord applied before or after death?”
“What was the character of the wound on the back of the head?”
BLUNT WEAPON USED.
“It was about two and a half inches long, and seemed to have been made by a blunt edged instrument. The blow evidently had been delivered upward, for the upper edge of the scalp was loose.”
“Was this wound made before or after death?”
“What was the effect of this wound?”
“It undoubtedly produced unconsciousness.”
“Did you find any blood about the body or on the wounds?”
“Tell the jury about the wound over the right eye.”
“The right eye was black and blue, and contused, though the skin was not broken.”
“Was this wound made before or after death?”
“What sort of an instrument, produced this wound?”
“It was evidently a substance that was somewhat soft because the skin was not broken.”
“Could it have be[e]n produced with a fist?”
“Tell the jury about the wound on the left leg.”
“There was a superficial wound below the knee, half an inch wide and about three and a half inches long.”
“You say there were bruises and scratches on the face?”
“Yes; a good many, on both cheeks and forehead.”
“Were these wounds produced before or after death?”
“Why do you say they were produced after death?”
“Because I examined them closely and found no blood.”
Dr. Hurt testified that he found blood on the child’s underclothing. He found no evidence of violence. In reply to questions he stated that he made no examination of the blood vessels, on the condition of which Dr. Harris had based his conclusions in reference to violence of some kind having been committed.
ARNOLD TAKES WI[T]NESS.
Attorney Arnold conducted the cross-examination.
“What part did you examine first?”
“Her face and the exposed injuries.”
“Had the face the appearance of having been dragged?”
“It had. It seemed to me that the body had been dragged face forward.”
“You said that the wound in the back of the head near the ear was two and one-half inches long. Dr. Harris testified that it was one and one-half inches long. Now, which is correct?”
Dr. Hurt looked at his notes and said: “We both were wrong. I measured the wound and it was two and one-quarter inches long.”
“What sort of an instrument did you say produced that wound?”
“A sharp edged instrument. I don’t mean a knife.”
“Could the corner of an elevator shaft or the corner of a floor have caused it?”
“A right angled board or instrument, any instrument with a right angled edge could have caused it.”
“Doctor, all you are doing about this is guessing, isn’t it?”
“Well, all there is to expert testimony is guessing, isn’t it? And the best guesser is the best witness, isn’t he?”
“I wouldn’t say that.”
INSIDE THE SKULL.
“Doctor, was there any damage on the inside of the skull?”
“There was a very slight damage there.”
“Could you see it with the naked eye?”
“Well, were the brain tissues injured?”
“No. There was a slight contusion on the inside of the skull. The skull was not fractured.”
“You mean there was an impression on the inner table of the skull?”
“Was there any blood there?”
“There was a slight hemorrhage.”
“Now, doctor, isn’t it too much of a strain on you or any other doctor to ask you to testify that this wound produced unconsciousness?”
“I don’t think so. It is my opinion that it did.”
“Oh, well,” said Mr. Arnold, “we are just getting back to opinions.”
Mr. Arnold asked a number of hypothetical questions relative to fractures and contusions, and brought out the statement that some men remain conscious even after the skull is fractured, and that some men die of concussions when the skull is not even fractured. He brought from the witness, apparently, that the witness would not say positively that the blow on Mary Phagan’s head produced unconsciousness, but that it was merely his opinion.
“Can’t you produce every conceivable effect on the faculties, short of death, by injuries to the brain?”
“Almost,” answered Dr. Hurt.
“What faculty in the chart of the brain is just by this abrasion?”
Dr. Hurt studied a moment and said that he did not remember.
“Can’t a thousand different effects be produced?”
“I wouldn’t say a thousand, but a good many.”
“What makes you say that one little hemorrhage that you and Harris looked for so long and so carefully produced a given effect?”
“I am only giving an opinion.”
“There was no pressure on the brain, was there?”
“Well, doctor, after all, all you mean is that the blow might have caused unconsciousness?”
“Could the blow have killed her?”
“Not in my opinion.”
“Well, couldn’t she have been killed by the nervous shock of that blow? People often are, aren’t they?”
“People have been killed so, but she was not, in my opinion.”
DIDN’T EXAMINE LUNGS.
“Opinions again!” snorted Mr. Arnold. “In a post mortem examination, isn’t the only way that you can really tell fgrom [sic] a scientific medical standpoint that death was produced by strangulation, an examination of the condition of the lungs?” Dr. Hurt admitted that he had not examined the lungs. He based his opinion that death was caused by strangulation upon the fact that the cord was imbedded in her neck, her tongue protruded and her features were distorted.
Dr. Hurt admitted, in answer to Mr. Arnold’s questions, that he found no sign of a criminal assault. He also admitted that there probably would have been evidence of such an assault had one been committed.
Dr. Hurt admitted that various causes have produced inflammation. External violence was not absolutely necessary to cause inflammation of the blood vessel said he.
He again declared he would not say a criminal attack had been made.
“Were you present when Dr. Harris made a post mortem examination of Mary Phagan’s body?”
“Did he examine the lungs?”
“At the time you examined the body was it swollen?”
“Decomposition had not started.”
ATTACKS HARRIS TESTIMONY.
“Doctor, cabbage is one of the hardest things to digest that goes into the stomach, isn’t it?”
“It depends on the individual to a certain extent. Cabbage is considered a hard food to digest.”
“Well, now, doctor, isn’t every person’s stomach to a certain extent a law unto itself?”
“To a certain extent, yes.”
“Well, now, doesn’t it usually take about three and one-half hours for cabbage to be digested?”
“It depends a great deal on the mastication. I should say that it would take about that time for complete digestion.”
In answer to other questions, Dr. Hurt testified that he believed wheat bread would be much easier to digest than cabbage.
“Couldn’t you chew bread until it went down to the stomach in almost a liquid condition?”
“Suppose a child, eating a meal hurriedly, say to catch a street car, didn’t chew the cabbage thoroughly. It would take a much longer time, then, to dissolve than if well chewed.”
“Don’t you think a doctor is making a wild guess, then, if he is taking a piece of cabbage” —
Solicitor Dorsey objected to the question. This question, said he, was aimed at the testimony of Dr. Harris. “Let the jury decide on which doctor is speculating,” said the solicitor.
NO DIGESTION WHILE UNCONSCIOUS.
“If a person becomes unconscious, does digestion go on?”
“A snake swallows a rabbit, and goes right to sleep, doesn’t it, and the digestion goes on?”
“I don’t know.”
“If the digestion goes on when a person is asleep, and not when a person is abnormally unconscious, what is the difference between the two states of unconsciousness?”
“One is natural and the other is unnatural.”
“Some digestion goes on during unconsciousness, doesn’t it?”
“I don’t think so.”
“The circulation of blood and the secretion of gastric juices are the qualities that make up digestion, are they not?”
“Well, the gastric juices don’t change their natural qualities during unnatural unconsciousness, do they?”
“Oh, I don’t mean to say that.”
“I believe you said it was a wild guess a while ago, to say that the girl was unconscious before death?”
Solicitor Dorsey objected, contending that the doctor had made no such statement. Attorney Arnold withdrew the question.
“You did not make a chemical or a microscopical examination?”
“I did not.”
“Have the medical men experimented as to the time consumed by normal persons in digesting food?”
Solicitor Dorsey exhibited the glass bottles containing the stomach contents which had been produced by Dr. Harris Friday. He put hypothetical questions to the witness and got the answer from Dr. Hurt that the cabbage taken from Mary Phagan’s stomach must have been there only a short time.
“How long do you think it was there?”
Mr. Arnold objected. For ten minutes he strove to break down Dr. Har[r]is’ theory.
“Your honor, it is manifestly, unfair,” said he to the court, “to allow this witness to answer that question when he doesn’t know all the facts. It is evident from the appearance of this cabbage that it was swallowed practically whole. He does not know how long the men who ate the cabbage exhibited in these other glasses chewed it, nor does he know the comparative state of their digestive organs, nor anything about the condition of the cabbage when they ate it. Simply by mastication, cabbage may be reduced practically to a liquid before it enters the stomach. I think the question is unafir [sic].”
Solicitor Dorsey contended that they could never learn all of the facts, and that the question as a legal and commonsense proposition was fair. He pointed out that they could not know how many teeth the girl had nor how many teeth the men had. They could never tell how long the cabbage that she ate had been cooked nor how long the cabbage that the men ate had been cooked, nor whether the cabbage was tender or whether it was tough.
It was at this juncture that the trial was stopped for a few moments because of the newspaper headline.
Mr. Dorsey resumed his redirect examination of Dr. Hurt, following the interruption caused by the newspaper headline.
Solicitor Dorsey picked up the bottle containing the sample of cabbage from Mary Phagan’s stomach, and the two other samples taken from the stomachs of other persons, and held them up so that Dr. Hurt could see them.
“Assuming, Dr. Hurt, that this substance in these two bottles had been in the stomach of a normal person for an hour, how long would you say this cabbage had been in the stomach?” He indicated the cabbage taken from Mary Phagan’s stomach.
“A much shorter time. I should judge from the appearance that the one was in the stomach I should say about one-half the time of that of the others.”
“Have there or not been blows upon the people’s skulls which crushed in the skull without producing death?”
Attorney Arnold took up the witness again for cross-examination.
“Looking like a liquid depends on how much this cabbage was chewed, doesn’t it?” he asked.
Attorney Arnold held up the sample of cabbage taken from Mary Phagan’s stomach.
“hat [sic] looked like it had been bolted, doesn’t it? Like a child will bolt meals?”
“It wasn’t well chewed.”
“Isn’t it a wild inquiry, doctor, to ask from the contents of a stomach how long they had been in the stomach?”
“I won’t commit myself.”
CHIEF BEAVERS CALLED.
“Isn’t it possible for a blow on the head to blacken one or both eyes? Doesn’t such a blow sometimes have this effect?”
“It sometimes does.”
This concluded Dr. Hurt’s testimony. Chief of Police James L. Beavers was called to the stand.
Before the solicitor could begin the examination of the witness, Attorney Rosser inquired if Chief Beavers had not been in the court room before.
“Not today,” replied the chief.
“But you have you been in the court room during this trial?”
“Yes, I’ve been here twice.”
Solicitor Dorsey interrupted with the statement that he didn’t know until Friday afternoon that he would summon the witness.
Proceeding with the examination, the solicitor inquired as to the identity of the witness. The witness said that he is chief of police in the city of Atlanta, and has been chief for two years. Prior to that he was a captain for two years. He went to the pencil factory on Tuesday, April 29, he thought it was.
“Did you see the area around the girls’ dressing room and the water cooler on the second floor?”
ROSSER OBJECTS TO WITNESS.
Attorney Rosser remarked to the court: “I don’t think, your honor, it is enough for the state to say they didn’t know they were going to call this witness until this morning. The solicitor knew what information this witness possessed, and what information others possessed.”
“Your honor,” said Solicitor Dorsey. “If the witness had been sworn and stayed in the court room it would not have made any particular difference upon the testimony that I will ask him to give. However, I did not know until yesterday afternoon that I might call him, and I didn’t determine until this morning that I would use the witness. The same thing was true of Mrs. Jefferson. I did not know I would call her until just a short time before she was put upon the stand.”
“Proceed with the examination of the witness, Mr. Dorsey,” directed the court.
The solicitor repeated his question. “If so, tell what you found there,” he added.
“Yes, I examined the area and found blood spots on the floor near the dressing room. The blood appeared to have been spattered.”
“Did you see anything else on the floor except this blood?”
“Describe the color of the blood.”
“It looked like blood.”
Attorney Rosser cross-examined the witness.
“You saw that Tuesday, captain?”
“I think so.”
TRIES TO TRAP BEAVERS.
“Why, captain, wasn’t this blood chipped up early Monday morning?”
“I’m not sure about that. I was there when it was chipped up. It may have been Monday.”
“You didn’t analyze this stain to determine whether it was blood?”
“You are not a chemist?”
“No, sir, but it looked like blood to me.”
“You saw them chip up the blood?”
“How many chips did they take?”
“Two. I think.”
“Now, captain, didn’t they take four or five chips?”
“No, sir. I didn’t see them take but two.”
“You don’t know whether they took up any more chips afterwards?”
“Who was present when the chips were taken?”
“Detectives Starnes and Campbell.”
“All the chips taken up had this substance on them?”
Mr. Rosser sat down. The solicitor handed to the witness some chips and asked him to identify them, but before the witness could make any statement Mr. Rosser put another question.
“Do you know Barrett?”
“I believe they said that was the man’s name.”
“The man who was chipping it up, eh?”
The witness then stated that the chips handed to him by the solicitor looked like those taken from the pencil factory floor.
“These chips haven’t been in your possession, have they?”
Chief Beavers was excused from the stand.
The solicitor called for City Detective Rosser, who did not answer; for Sergeant Dobbs, who did not answer, and for Policeman Robert Lassiter, who responded and took the stand.
Policeman Lassiter testified that he found the parasol of Mary Phagan, with a ball of wrapping twine beside it, at the bottom of the elevator shaft. He was cross-examined by Attorney Rosser, who asked him if he did not find a trace of a body being dragged in the basement. He did, he said. He found that trace first at a point between the foot of the ladder and the rear of the building.
“Didn’t you follow it back to the foot of the ladder?” asked Attorney Rosser.
ADJOURNS TO MONDAY.
“No; to the elevator shaft,” answered the witness.
“When you were testifying at the inquest, didn’t you at one time say you traced it to the elevator and another time say you traced it to the foot of the ladder?”
The witness said he did not think so; that he knew that he traced it to the elevator shaft. The witness admitted that the pencil factory was on his beat. He passed it in the rear about 1 o’clock Sunday morning and found it closed. He didn’t try the door, he said. He found the parasol between 6 and 7 o’clock Sunday morning, he said. The witness said that he did not know whether the elevator stops flat on the ground floor at the bottom of the shaft. The witness concluded there.
Judge Roan asked Mr. Dorsey if he had another brief witness to put up. The solicitor answered in the negative, and at 12:25 o’clock Judge Roan adjourned the court until 9 o’clock Monday morning.