Supplement to the message of the Governor [John M. Slaton] to the General Assembly of Georgia, June 23, 1915, opinion in case of the State vs. Leo Frank

SUPPLEMENT
TO THE
MESSAGE
OF THE
GOVERNOR
TO THE
GENERAL AssEMBLv OF GEORGIA JUNE 23, 1915
OPINIONS IN CASE OF
THE STATE
vs.
LEO FRANK

SUPPLEMENT
TO
MESSAGE
OF THE
GOVERNOR
TO THE
GENERAL ASSEMBLY OF GEORGIA
JUNE 23, 1915
OPINION IN CASE OF THE STATE vs.
LEO FRANK
1915 CH.\8. P. BYRD, State Printer
ATLANTA, GA.

SUPPLEMENTARY MESSAGE OF THE GOVERNOR
ExEGGTIYE DEPARTMEXT.
1STATE OF GEORGIA.
June 21, 1915.
In Re Leo ~L Frank, Fulton Superior Court, sentenced to be executed, June :22, 1915.
Saturday, April 26, 1913, was Memorial Day in Georgia and a general holiday. At that time l\Iary Phagan, a white girl, of about 14 years of age, was in the employ of the National Pencil Company, located near the corner of F'orsyth and Hunter Streets, in the City of Atlanta. She came to the pencil factory a little after noon to obtain the money due her for her work on the preceding Monday, and Leo ~I. Frank, the defendant, paid her $1.20, the amount due her, and this was the last time she was seen aliYe.
Frank was tried for the offense and found guilt~the succeeding August. Application is now made to me for clemency.
This case has been the subject of extensive comments through the newspapers of the United States and has occasioned the transmission of over 100,000 letters from various States requesting clemencr. Many communications have been received from citizens of this State acl"rncating or opposing interference with the sentence of the court.

I desire to say in this connection that the people of the State of Georgia desire the esteem and good will of the people of every State in the Union. Every citizen wishes the approbation of his fellows and a State or Nation is not excepted. In the preamble to the Declaration of Independence, Thomas .Jefferson wrote that "\Yhen, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the power:,; of the earth the separate and equal station to which the Laws of Nature and of Nature's God entitle:,; them, a decent respect to the opinions of mankind requires that they should declare the causes ,d1if'li impel them to the separation.''
.Many newspapers and multitudes of people han attacked the State of Georgia, because of the conviction of Leo M. Frank and have declared the eonviction to have been through the domination of a moh and with no evidence to support the verdict. 'rhis opinion has been formed to a great extent by those who have not read the evidence and who are unaequainted with the judicial procedure in our State.
I have been unable to even open a large proportion of the letters sent me, because of their numlwr. and because I could not, through them, gain any a,.;sistance in determining my duty.
The murder committed was a most heinous 01w. A young girl was strangled to death by a cord tiPcl around her throat and the offender deserves the punishment of death. The only question is as to tl,e identity of the criminal.
The responsibilit:' is upon the people of Georgia to protect the liYes of her citizens and to mainbin
-4

the dignity of her laws, and if the choice must he made between the approbation of citizens of other States and the enforcement of our laws against offenders whether powerful or weak, we must choose the latter alternative.
MOBS.
It is charged that the court and jury were terrorized by a mob and the jury were coerced into their verdict.
I expect to present the facts in this case with absolute fairness and to state conditions with regard only to the truth.
vVhen Frank was indicted and the air was filled with rumors as to the murder and mutilation of the dead girl, there was intense feeling ana to such extent that my predecessor, Governor Brown, stated in argument before me that he had the militar.'ready to protect the defendant in the event any attack was made. No such attack was made, and from the evidence that he obtained, none was contemplated.
Some weeks after this, defendant was put on trial. Georgia probably has the broadest provisions for change of venue in criminal cases that exist in any State. Our law permits the judge to change the venue on his own motion, in the event he thinks a fair trial eannot be given in any county. The defendaut can move for a change of venue on the same ground, and if it be refused, the refusal of tlie judge is subject to an immediate appeal to the Supreme Court. and in fact, the entire genius of our law demands of fair trial absolutely free from external influence.
Frank went to trial without asking a change of

venue and_ submitted his case to a jury that was acceptable to him. He was ably represented by counsel of conspicuous ability and experience.
During the progress of the case, after evidence had been introduced laying the crime, with many offensive details, upon Frank, the feeling against him became intense. He was the general superintendent of the factory and Mary Phagan was a poor working girl. He was a Cornell graduate and she Llependent for her livelihood upon her labor. According to a witness, whose testimony will subsequently be related more completely, when this girl eame to get her small pay, since she only worked one day in the week, because of lark of matefr-11. this general superintendent solicited her to yield to his importunities and on her refusal slew lier.
The relation of these facts anywhere and in ar.y comhnmity would excite unbounded con,fonrnation.
rf the audience in the court room manifes+ed their
cleep resentment toward Frank, it was largely by thi:,;: (_',,idence of feeling beyond the power of a court t0 conect. It would be difficult anywhere for an appellate court, or even a trial court, to grant a new trial in a case which occupied thirty days, because the audience in the court room upon a few occasions indicated their sympathies. However, the deep feeling against Frank which developed in the progress of the evidence was in the atmosphere and reganl.less of the commission of those acts of which the eourt would take cognizance, the feeling of the public ,vas strong.
Since Governor Brown has related secret history in his puhlic argument hefore me, I may state that Frir1ay night, hefore the Yerdict ,,as expedecl Sat-

unlay, I had the sheriff to call at the Mansion and
inquired whether he anticipated trouble. This was after many people had told me of possible clanger and an editor of a leading newspaper indicated his anticipation of trouble. The sheriff Rtated he thought his deputies eould avert any difficulty. Judge Roan telepl10necl me that he had arranged for the (lefendant to be absent when the verdict was rendered. Likt> Governor Brown, I entered into communication witl1 the eolonel of the Fifth Regiment, who state(l he would he ready if there were necessity.
I wns leaving on Saturday, the day the verdict was ex1iectecl, for Colorado Springs, to attend the Congress of the Governors, and did not wish to be absent if my presen<'e were necessary. l have now the original order prepared by me at the time, in the ewnt there were a ne<'essit~- for it. I became convinced there would be slight chance for any use of force and therefore filled my engagement in Colorado.
,Jndge Roan, in the exercise of precaution, requested that both counsel and defemlant be absent wlwn the verdict was rendered, in order to avoid any possible demmrntration in the event of acquittal.
The jury found the defendant guilty and with the exeeption of demonstration outside the court room, there was no disorder.
Hence, it will be seen that nothing was done whieh courts of any State could correct through legal machinery. ..A court must have something more than an atmosphere with which to dea 1, and especially when that atmosphere has ]wen (rPatP<l through the processes of Pvi,1en<'e i11 diselosin~?: a l101Tih),, crime.
7

Our Supreme Court, after carefully considering the evidence as to demonstrationfi made by specta: tors, declared them without merit, and in this regard the orderly processes of our tribunals are not suhjeet to critieism.
RACIAL PRE.JUDICE.
The charge against the State of Georgia of raeial prejudice is unfair. A conspicuous Jewish family in Georgia is descended from one of the original colonial families of the State. ,Jews have been presidents of our Boards of Education, principals of om schools, mayors of our cities, and conspicuous iu all our comm<~rcial enterprises.
THE lf'ACTS IN THE CASE.
:\Jany newspapers and non-residents have declared that Frank was convicted without any evidenee to sustain the verdict. In large measure, those giving expr<~ssion to this utterance have not read the evidence and are not acquainted with the facts. Tla, same may be said regarding many of those who ar<> demanding his execution.
In my judgment, no one has a right to an opini011 who is not acquainted with the evidence in the case, and it must be conceded that the jury who saw tl1< witnesses and beheld their demeanor upon the stand are in the best position, as a general rule, to reach the truth.
[ cannot, within the short time given me to <lecide the case, enter into the details outlined in thousands of pages of testimony. I will present the more salient features, and have a right to ask that all persons who are interested in the determination of tlw
8

matter, shall read calmly arnl dispassionately tlw facts.
The State proved that Leo nl. ]'rank, the general superintendent of the factory, was in his office a little after 12 o'clock on the 2Mh day of April, rn1:..i, and he adrnittE!d having paid _Mary Phagan $1.20, being the wages due her for one day's work. She askell F'rank whether the metal had c:ome, in onler to know when she could return for work. !<'rank admits this and so far as is known, he was the last one who saw her alive. At three o'clock tlie next morning (Sunday), Ne,vt Lee, the night watchman, found in tlw basement the body of l\lary Phagan strangled to death by a cord of a kincl kept generally in the metal room, w11ieh is on Frnnk 's floor.. She had n cloth tied around her head which was torn from her unclPrskirt. lfor drawers were either ripped or eut and some blood and urine were upon them. Her eye was very black, irnlieating a blow, and there was a cut two and one-half inches in length about 4 inches ahove the ear arnl to the left thereof, which Pxtended through the scalp to the skull. The county physieian who examined her on Sunday morning declared there was no violence to the parts arnl the blood was characteristic of menstrual flow. There were no external signs of rape. The body was not mutilated, tlw wounds thereon being on the head and scratches on the elbow, nnd a wound about two inehes below tlw knee.
The State showed that Mary Phagan had eaten her dinner of brea(l and cabbage at 11.30 o'clock and ha<l caught the car to go to the pencil factory
9

which would enable her to arrive at the factory -within the neighborhood of about thirty minutes. The element of exact time will be discussed later.
Dr. Harris, the Secretary of the State Board of Health, and an expert in this line, examined the contents of Mary Phagan 's stomach ten clays after her burial and found from the state of the digestion of the eabhage and bread, that she must have been killed within about thirty minutes after she had eaten the meal.
Newt Lee, the negro night watchman, testified that Frank had "told me to be back at the factory at 4 o'clock Saturday afternoon," and when he "came upstairs to report, :B'rank, rubbing his hands" met Newt Lee and told him to "go out and have a good time until 6 o'clock,'' although Lee said he would prefer to lie down and sleep. vVhen Lee returned, Frank changed the slip in the time clock, manifesting nervousness and taking a longer time tlian usual.
,vhen ]'rank walked out of the front cloor of the factory, he met a man named Gantt, whom he had discharged a short time before. :B'rank looked frightened, his explanation heing that he anticipated harm. Gantt declared he wished to go upstairs and get two pairs of shoes which permission Frnnk finally granted, stating that he thought they had been swept out.
About an hour after this occurrence, ]'rank called up Lee over the telephone, a thing he had never clone before, and asked him if ever,vthing was all right at the factor,v. Lee found the double inner doors locked, which he had rn~ver found that way before. Subsequently, -when Lee was arrested and Frank was requested by the detectives to go in and talk to him in order to find what he knew, Lee says that 11'rank

dropped hi:,, hea<l and state<l "if you keep that up, we will hoth go to hell."
On Sunday morning at about :3 o 'cloek, after Newt Lee, the night watchman, hacl telephoned the police station of the discovery of the dean hody and the officers ha<l come to tlw faetory, they endeavored to reach ]{'rank l1y telephmw, hut <'ould not get a respon:,,e. 'l1hey telephmwd at Lm Sunday morning and told :B'rank that tli<')' ,vankd him to eome down to the factory and ,vl1en the~ earne for him, he wa:,, very nervous and tremble<l. The hody at that time had been taken to the undertakers, and according to the evidence of the officen; who took I11 rank by the undertaker's establishment to identify the girl, he (:F'rank) showed a disinclination to look at the body and did not go into the room where it hi~-, but turned away at the door.
Frank ha(l made an Pngag<>nient on B1 riday to go to the ba:,,e ball game on Saturday afternoon with his brother-in-law, hut hroh~ the engagement, as he said in his statement, because of the finaneial statement he 'had to make up, while before the Coroner'& Jury, he said he broke tlw engagemPnt because of threatening weather.
The contention of the SbtP, a:,; wil I hereaftf~r he dis<'losed, was that Frank remairn!<l at the faetory Saturday afternoon to dispose of the body of Mary Phagan, and that that was the rem;on he gave Newt Lee his unusual leave of absence.
The cook's husband testified that on Saturday, the day of the murder, he visited his wife at the home of Mr. Selig, defendant's father-in-law, where Frank and his wife were living, and that :F'nmk came in to dinner and ate nothing. The npgro cook of the Se-
ll

Jigs wm; plaeed upon the stand anJ denied that hPr husband was in the kitchen at all on that day. For purposes of impeachment, therefore, the State introduced an affidavit from tliis cook taken by the detectives, and as she claimed under duress, whieli tended to substantiate the story of lH'r husband :md which affidavit declared that on Sunday morniug after the murder she heard }frs. ],'rank tell her mother that }ir. Frank was drinking the night before and made her sleep on a rug and called for a pistol to shoot himself, because he (:B1 rank) had murdered a girl. This affidavit was relevant for purposes of impeachment, although, of course, it had no legal probative value as to the facts contained therein. On the stand, the cook declared that she was coerced hy her husband and detectives under threat of being locked up unless she ga-ve it, and it wils ma<le at the station honse. The State proved it was given in tlw presenee of her lawyer and said that her denial of the truth of the affidavit was because her wages had lwen inertnse<l by the pnrent of l\Irs. Frank. No details are given ;is to where the conversation oc<'lllTP<l between ::\frs. W'rank and her mother, nor is thPre any (Xplanation as to how she happened to hear the conversation. It will he easil) seen tlrnt the effed of the affidavit upon the jury might he great.
It is hard to conceive that any man's power of
fabrkation of minute details could reach that which Conley sho,n1cl, nnle:c;s it he the truth.
The evidence introduced tended to show that on Sunday morning Frank took out of the time doek the slip which he had admitted at that time was punched for each half hour, arnl subsequently Frank <']aimed

that some punches hacl been missed. The sugge:,;tion wa:,; that he had either manipulated the slip to plaee the burden on Lee, or was so excited as to be unable to read the slip correctly.
The State introduced a witness, Monteen Stover, to prove that at the time when }lary Phagan and Frank were in the metal room, she was in Frank's office and he wa:,; absent, although he had declared he had not left his office. The State showed that the hair of Mary Phagan had been -washed by the undertaker with pine tar soap, which would change its color and thereby interfere with the ability of the doctor to tell the similarity between the hair on the lathe and -1\fary Phagan 's hair.
The State further showed a cord oi the character which strangled l\Iary Phagan was found in quantities on the metal room floor, and was found in less <1uantities and then cut up in the basement. As to thiH Detective Starnes testifie<l, '' I saw a cord like that in the basement, hut it was <'Ut up in pieces. l saw a good many cords like that all over the factory.''
Holloway k:,;tified, "These cords are all over the building and in the basement.''
Darley testifie<l to the same effect. IIowever, thi:,; contrncliets th<~ testimony that wa:,; presented to the jury for solution. The State claimed to the jury that witnesses for the defendant, under the suggestion of counsel, in open court, would change their testimony so that it might not operate against the defendant.
I have not enumerated all the suspicious circumstances urgecl hy the State, but have mentioned what Uiave appeared to me the most prominent. one:,;.
1"-,'

where I have not mentioned the more prominent ones, an inspection of record fails to maintain the contention.
It is contended that a la-wyer was engaged for J:<'rank at the station house before lie was arrestecL This is replied to by the defense that a friend lrnd engaged counsel without },~rank's knowledge, and the lawyer advised F'rank to make full stn1ement to tfic detectives.
JIM CONLEY.
'I.1he most startling and spectacular evidence in the case was that given by a negro, ,Jim Conley, a man 27 years of age, and one who frequently had been in the ehaingang. Conley had worked at the factory for about two years and was thoroughly acquainted with it. He had worked in the basement about two montlu; and had run the elPvator about a year and a half.
On May 1st he was anested b) tlw det(ictives. Near the body in the hasernent lrnd been fonnd two notes, one written on brown paper and the other on a leaf of a scratch pad. 'I1liat written on white paper in a negro's hand writing, showP<l tlie following: "He said lie would love me, lay do,Yn pby likt~ the night witch, did it, bnt that long, tall black neg,o did hoy hisself.'' On the brown paper, which was the carbon sheet of an order blank headed "Atlanta, Ga.--, 1900.'' which hereafter becomes important, was written in a negro 's hand writing the following: "Marn that negro fire down here did this i went to make water and he pnshedme down a hole a Jon~

ta11 negro black did (had) it. i write while play with me."
'l'he detectives learned about the middle of .May that Conley could write, although at first he denied it. He made one statenient and three affidavits which are more fully referred to in stating the defendant's case. The affidavits were introduced hy the defendant under notice to produce.
By these affidavits there was admitted the substance of the evidence that he delivered on the stand, which in brief was as follows :
Conley claimed that he ,vas asked by Frank to come to the factory on Saturday ancl watch for him, as he previously had done, which he explained meant that Ji'rank expede(l to meet some woman and wh~n F'rank stamped his foot Conley was to Jock the door leading into the faetory and when he whistled, lw was to open it.
Uonl('Y oreupie(l a dark place to the side of the elevator behind sonw boxes, wlwre he would be invisihlP.
( 1onley mentiomd S(~veral peoph, including male and fomnle employees, who went up the steps to the second floor where F'rank's office was located. He saicl that Mary Phagan went up the stairs and he heard in a few minutes foot steps going back to the metal room, which is from 150 to 200 feet from the offire. He heard a scream and then he dozed off. In a few minutes Ji'rank stamped and then Conley locked the door and then Frank whistled, at whi0h time Conley unlocked the door and went up the steps. 1-<'rank was shivering and trembling and told Conley, '' I "-nnted to be with the little girl and she refused me arnl T strurk her and I guess I struck

her too hard and she fell and hit her head against something, ancl I do not know how bad s11e got hurt. Of course, you know I aint built like other men."
Conley described Frank as having been in position which Conley thought indieated perversion, hut the facts set out hy Conley (lo not demand snch eon('lusion.
Conley says that he found }lary Phagan lying in the metal room some :200 feet from the office, with a cloth tied about her neck and under the head as though to cateh blood, although there was no blood at the place.
1''rank told Conley to get a pit!Ce of cloth and put
the body in it ancl Conley got a piece of striped bed tiek and tied up the body iu it arnl brought it to a p~ace a little way from the dressing room and <lroppe<l it and then calle<l on B'rnnk for assistarne in C'arrying it. F'rank went to his offiC'e and got a hy and unlocked tlte switeh hoar<l in order to operatt the elevator, aml he and Conley took the body in the elevator down to the basement, where Conley rollt>d the body off the cloth. 1'1rank returned to the first floor by the ladder, while Conley went by the elevator and Frank on the first floor got into the elevator and went to the second floor, on which the office is located. They went back into ],'rank's private office and just at that time Frank said, '' ::VIy God, here is Emma Clark and Corinthia Hall,'' and 1'--,rank .then put Conley into the wardrobe. After they left :F'rank let Conley out and asked -Conley if he could write, to which Conley gave an affirmative reply. Frank then dictated the letters heretofore referred to. F--,rank took out of his desk a roll of green backs
](i

and told him, "Here is $:WO," but after a -while requested the money back, and got it.
One witness testified she saw sonrn negro, whom she did not recognize, sitting at the side of the elevator in the gloom. On the extraordinary motion for new trial, a woman7 who was unimpeached, made affidavit that on the 31st of l\Iay, through newspaper report, she saw that Conley claimed he met Frank by agreement at the corner of F1orsyth & Nelson Sts., on the 26th of April, 191:-3, and she became satisfied that she saw the two in close conversation at that place on that date, between 10 and 11 o'clock.
F1 rank put his character in issue and the State introduced ten witnesses attacking F'rank's rharacter, some of whom were factory employees, who testified that Frank's reputation for lasriviousness was bad and some told that he had been sC'en making ndvanees to Mary Phagan, whom Wrank had professed
to the deteetives, eitlwr not to have known, or to have
lwen slightly a<'qnainted with. Other witnesses testifiPd that l<-,rank Jiad improperly gone into the dressing room of the girls. Some witnesses who answered on direct examination that F'rank 's reputation for las('ivionsness wns ha<l, were not cross examined as to ddails, and this was urnde tlw suhjC'ct oJ' comment hefore the jury.
The above ::;tates nry liriefly the gist of the State's ease, omitting man~ inf'idents whid1 the StatP claims would confirm l<1 rank 's guilt when taken in their entirety.
DEFENSE.
T'he defendant introduced approximately one hundred witnesses as to his good character. They in-
17

duded citizens of Atlanta, college mates at Cornell and professors of that college.
The defendant ,ms born in rrexas and his (-'ducation was completed at the institution named.
The admission of Conley that he wrote the notes found at the body of the dead girl, together with tlte part he admitted he played in the transaction, combined with his history and his explanation as to both the writing of the notes and the removal of the body to the basement, makes the entire rase revolve about him. Did Conley speak the truth?
Before going into the varying and eonfliding affidavits made by Conley, it is advisable to refer to some incidents which cannot be reconciled to Con. ley's story. wherever a physical fact is stated h~ Conley, which is admitted, this can be accepted, hut under both the rules of law and of common sense, hie: statements cannot be receive(l, excepting where clearly corroborated. He aamits not only his participation as an accessory, but also glibly confesses his own infamy.
One fact in the case, ancl that of most important force in arriving at the truth, contradicts Conley's testimony. It is disagreeable to refer to it, but dp': cacy must yield to necessity when human life is at stake.
The mystery in the case is the question as to l1ow l\fary Phagan 's hody got into the basement. It w,1:, found 1:16 feet away from the elevator and the face gave evidence of being dragged through dirt awl cinders. She had dirt in her eyes and mouth. Conley testified that he and Frank took the hody down to tlw basement in the elevator on the afternoon of April 26, 1913, and leaves for inferenee that Frank rc-
18

moved the body 13(-i feet toward the end of the building, where the body was found at a spot near the back door which led out towards the street in the rear. Conley swears he clid not return to the basement, but went back up in the elevator, while Frank went back on the ladder, constituting the only two methods of ingress and egress to the basement, excepting through the baek door. This was between one and two o'clock on the afternoon of April 2Gth.
Conley testified that on the morning of April 2Gth he went down into the basement to relieve his bowels and utilized the elevator shaft for the purpose.
On the morning of April 27th at ;3 o'clock, when the detectives eame down into the basement by way of the ladder, they inspeded the premises, including the shaft, and thPy found tlwre human excrement in natural condition.
Subsequently, when they used the elevator, which everybody, including Conley, who had run the elevator for one and one-half years, admits, only stops hy hitting the grournl in tlH~ basement, the elevator struck the excrement nncl mashed it, thus demonstrating that the elevator had not been used sinee Conley bad ht>en there. Solieitor-General Dorsey, Mr. Howard and myself visited the pencil factory and went down this efoyator and we found it hit the hottorn. T went again ,vitl1 my seNPtary with the same result.
l<'rank is <1elieafo in physique, while Conley is strong aml powerful. Conley's place for watching, as descrilw<1 h~- himself, was in the gloom a few feet from the hntehway, lea<ling hy way of ladder to the basement A !so he was in a few feet of the elPvator slinft on thP first floor. Conley's aetion in thP
19

elevator shaft wns in accordanC'e with his testimony that he made water twice against the door of the elevator shaft on the morning of the 26th, instead of doing so in the gloom of his corner behind the boxes where he kept watch.
Mary Phagan in coming downstairs was compelled to pass within a few feC't of Conley, who was invisihle to her and in a fflv feet of the hatrhway. Frank could not have earri(,d lH~r down the hatchway. Conley might have <lon<:' so vvith diffieulty. If th<:' elevator shaft w:1s not used by Conley and 1''rank in taking the ho<ly to the hasement, then the explanation of Conley, who admittedly wrote! the notes fournl by the body, cannot he accepted.
In addition there wns found in tlw elevator shaft at 3 o'clock Sunday morning, the parasol, whieh was unhurt, and a ball of cord which had not been mashed.
Conley in his affidavits before the detectives testified he wrapped up the hody in a rrocus sa<'k at the suggestion of l11rank, but on the trial, he testified he wrapped up the ho<ly iu a piece of lw<l-tirk '' like the shirt of the Solicitor-General.'' The only reason for such change of testimony, unless it he the truth, was that a crocus sark unless split open would lw too small for the purpose. lf he split open the crocus snck with a knifP, this would suggt>st the use of ;,a;~~niie.:in cntting.-the drawers of the' girL
:Ro the quC'stion arises, whether th Pre wris: l'rny ;,het!cfotk. in .the pencil factory 1 .Aml no rmum'ii can -be offered ,vhy bed tick should be in a pencil fartory. It has no function there. Had s11C'h unusual cloth be('ll in the factory, it rPrtainly must have been known, hut nobod>- has ever found it.
Conley says that after the deecl was romrnitted,
20

which every body admits could not have been before 12.05, :B1 rank suddenly said: '' Here comes Emma Clark and Corinthia Hall," and he put Conle; in a wardrobe.
The uncontradicted evidence of these two witnesses, and they are unimpeached, was they reached
the factory at 11.3'5 A. ::\1., and left it at 11.45 A. }L,
and therefore this statement of Conley can hardly lw aecepted.
Conley says that when they got the body to the bottom of the elevator in the hasement, :B1 rank told him to leave tlw hat, slipper and piece of ribbon riglit there hut lrn '' taken th<> things and pitched them over in front of tlw boiler" which was 57 feet away.
Conley says that Frank told him when he watched for him to lock the door when he (:B-irank) stamped and to open the <loor when he whistled. In other wonls, Frank ha<l made the approach to the girl and lrnd killed IH'r before he had signalled Conley to lock tlw door.
( 'onle) says, '' I was upstairs lietween the time I lorked the door and tl1e time I unlorke<l it. I unloeked the door hefon, I WPnt upstairs." This explanation is not l'lear, nor is it easy to comprelwud the USP of the signals whid1 totally failed their purpm,e.
Tt is rurious during the course of the sto1~r that while F'rank explained to ConlPy about striking the girl when sh<> rPfnsP<l him and Conle.v foun<l the girl strangled with a <'Ord, he <lid not ,rnk Frank an)-thing ahont thP use of tlw ron1, and that snhject was not mentiorn.'<1.
The wonrn1 on :\Jar; Phagan was near the top of
21

the head and reached the skull. vVounds of that eharaeter hlet1d freely. At the place Conley says he fournl hlood there was no blood. Conley says there was a cloth tie<l around the head as though to catch the blood, but none was found there.
One Barrett says that on :i\lomlay morning he found six or seven strands of hair on the lathe with whieh he worked and which were not there on Friday. The implication is that it was Mary Phagan 's hair and that she received a cut by having her head struck at this place. Jt is admitte<l that no blood was found there. The lathe is about three and onehalf feet high and 1\lar.v Phagan is described as being chunky in build. A blow whieh would have forced her with suffieient violence against the smooth handle of the lathe to have produeed the wound must have been a powerful one, since the difference between her height and that of the lathe eould not have accounted for it. It was strange, therefore, that there was a total absence of blood and that }Prank, who was delicate, crml<l have hit a blow of such violence.
Some of the witnesses for the 8tate testified the hair ,vas like that of }Jar~- Phagan, although Dr. Harris, compared :Mary Phagan's hair with that on the lathe under a microscope and was under the impression it was not 1\lary Phagan's hair. 'l'his will be the subject of further comment.
Barrett and others said they thought they saw hlood near the dressing room, at whieh place Conley said he dragged the body.
Chief of Police Beavf'rs said lie did not know whether it was blood.
Detective Starne8 said, '' [ do uot know that the splotehes T saw was hloocl."
22

Detective Black says, "Mr. Starnes, who was there with me, <lid not call my attention to any blood splotches. ''
Detective Scott says, '' vVe went to the metal room where I was shown some spots supposed to be blood spots.''
A part of what they thought to be blood was ehipped up in four or five chips and Dr. Claude Smith testified that on one of the chivs he found, under a microscope, from three to five blood corpusdes, a half drop would have caused it.
l11rank says that the part of the splotch that was left after the chips were taken up was examined by him with an electric flash lam11, and it 1Yns not blood.
Barrett, who worked on the metal floor, and who several witnesses declare claimed a reward because he discovered the hair and blood and said the splotch was not there on Friclay, and some witnesse:-: sustained him.
There was testimony that there were frequent injuries at the faetory, and blood was not infrequent in the neighhorhood of the ladies' dressing room. 'l'here was no blood in the elevator.
Dr. Smith, the City Bacteriologist, said that the presence of blood corpuscJes coulcl be told for months after the blood had dried. All of this bore upon the question as to whether the murder took place in the metal room, which is on the same floor of Frank's office. Excepting near the metal room at the place mentioned where the splotches varied according to Chief Beaver's testimony, from the size of a quarter to the size of a palm leaf fan, there was no blood whatever. It is to be remarked that a white sub-

stance, calleJ haskoline, used about the factory was found spread over the splotches.
CoNLEY 's AFFIDAVITS.
The defense procured under notice one statement and three affidavits taken by the detectives from Conley and introduce<l them in evidence.
The first statement, dated l\Tay 1ti, 1913, gives a minute detail of his actions on the 2Gth day of April and specifies the saloons he visited and the whiskey and beer he bought, and minutely itemized the denomination of the money he had and -what he spent for beer, whiskey and pan sausage. This comprehencls the whole of affidavit No. 1.
On Mny 24, mm, he macle for the detectives an
affidavit in whi<'h he sa:s that on F'ri<lay before the ~atnnla: on whieh the rnunler was <'ornmittcd, ]'rank aske<l him if he ronld write. rrhis would appear strange, heeause ]-,rank well knew he eould writ<and had so known for monthi'i, ]mt, according to Conley's affidavit, Frank dictated to him practically the contents of one of the notes fonrn1 hy the body of -:'\fary Phagan. Frank, then, aecording to Conle:' 's statement, took a brown srrateh-1rn<l and wrote on that himself, and then g-ave him a hox of rigarettes in whieh was some rnone: and ]'rank said to him that he had some wealth: rPlativ<'S in Brooklyn, and '' why should I hang.''
This would have made l11 rnnk guilty of the contemplated murder on Friday which was consummated Saturday and which was so unreasonable, it could not be accepted.
On May 28th, 1913, Conley made for the detectives another affidavit, which he denominates as
24

"second and last statement." 111 that he states that on Saturday morning after leaving home he bouglit two beers for himself and then went to a saloon and won 90 cents with dice, where he bought two more beers and a half pint of whiskey, some of which he drank, and he met Wrank at the corner of Forsyth and Nelson Streets, and F'rank asked him to wait until he returned.
Conley ,vent over to the factory and mentioned various peo1)l(1 whom he saw from his place of espionage going up the stairs to Mr. Frank's office. Then ]'rank ,vhistled to him nml he came upstairs and Frank was trembling and he and F'rank went into the private office when Frank exclaimed that Miss l~mma Clark and Corinthia Hall were coming nnd concealed Conley in the wardrobe. Conley sai<l that he stayed in th<.:' wardrohe a pretty good while, for the whiskey and beer lrnd gotten him to sweating. Then Frank asl((~d him if he rould write and }frank made him write at his dictation three times and V'rank told him he was going to take the note and send it in a letter to his people and recommend Conley to them. 1''rnnk said, ",Vhy :c;honld I hang'?"
Frank took a cigardte from a box and gave the box to Conley, and whcn Conler got across the street, he foun(l it had t"o paper dollars, and two :-;ilv0r quart0r:c; iu it, nnd Couley sai<l, '' Go0<l luek has done struck me." At the beer saloon he hought one-half pint of whiskey and then got a bucket and bought lG cents worth of beer, 10 cents worth of stove-wood, and a nickel's worth of pan sausage and gave his old woman $3.50. He did not leave home until about 12 o'clock S1 unday. On Tuesday morning Frank came upstairs and told him to be a good boy. On Wed-

nesday Conley washed his shirt at the factory anll hung it on the steam pipe to dry~ occasioning a little rust to get on it. The detectives took the shirt and finding no blood on it returned it.
On the 29th of May, 1913, Conley made another affidavit, in which he said that J,1 rank had told him that he had picked up a girl and let her fall and Conley hallowed to him that the girl was dead, and told hirp to go to the cotton bag and get a piece of eloth, and he got a big, wide piece of cloth and took her on his right shoulder, when she got too heavy for him and she slipped off when he got to the dressing room. He called J,1 rank to help and Frank got a key to the elevator and the two carried the body downstairs and F'rank told him to take the hod_\' hack to the sawdust pile and Conley says, he picked the girl up and put her on his shoulder, while F'rank went back up the ladder.
It will be observed that the testimony and the appearance of the girl indicated that she ,vas dragged through the cinders and debris on the floor of the basement, yet Conley says he took her on his shoulder.
The affidavit further states that Conley took the cloth from around her and took her hat and slipper, which he had picked up upstairs, right where her hody was lying, and brought them down arnl untied the cloth and brought them back and '' throwed them on the trash pile" in front of the furnace. rrhis was the time that Conley says Frank made the exclamation about Emma Clarke and Corinthia Hall.
An important feature in this affidavit is as follows:
Conley states in it that Mr. Frank said: "Here i:-; $200.00," and Frank handed the money to him.
2(i

All of the affidavit down to this point is in typE>writing, the original was <~xhihited to me. At the e1Hl of the affidavit in harnl writing is writtPn the following: '' \Yhih~ l -was looking at tlte money in my hands, Mr. -F'nmk said, 'Let me have tl1at and I will make it alright with you :\Ionday, if I live and nothing happens,' and he took the money back and I asked him if that was the way he done, arnl licsaid he would give it back Momlay."
It will be noticed that the first question whieh would arise would be, what heeanw of the $:W0.00. This could not bf~ aeeounted for. Therefore, when that query presumably was propounded to Conley, the only explanation was tlint F'rank demanded it back.
The detectives had Conley for two or three honrs on :\fay 18th trying to obtain a confession, and he denied he had seen tl_ie girl on the <lay of the murder. The detectives questioned him elosely for three hours on May :25th, wlH~n he repeated this ston. On May :27th, they talked to him ahout five or six houn, in Chief Langford's offiee.
Detective Scott, who was introduced hy the RtatP, testifed regarding Conle)'s stat(~nwnt arnl affidavits as fo11ows:
"V{e trie<l to imprnss him with the faet that Frank would not have written those notes on Friday, that that ,Y,1s not a reasonable story. '!'hat it showed premeditation aml that would not do. \VP ]Jointed out to him why the first staternPnt would not fit. \Ve told him we wanted another statPment. HP declined to make another statement. IfP sai<l he had told the truth.
"On May :28th, Chief Lm1gford nrnl I g-rillfrl him

for five or six hour:,; again, endeavoring to make clear several points which ,vere far fetched in his statement. vYe pointed out to him that this statement would not do arnl would not fit, and he then made the statement of May ]8th, after he had been told that his previous statement showed deliberation and could not he accepted. Ile told us nothing nbout J1'rank making an engagement to stamp and for him to lock the door, arnl told nothing about Monteen Stover. lfo did not tell us about seeing Mary Phagan. He said he di<l not see her. He did not say he saw Quinn. Conley ,rn:,; a rather dirt:, negro when I first saw him. He lookt'd pretty good when he testifie<l here.
"On May 29th, we talked with Conley almost all day. vVe pointed out things in his story that wen' improbable and told him he must <lo better than that. Anything in his story that looke<l to he out of place, we told him would not do. We triPd to wt him to tell about the little mesh bag. \Ve tried pretty strong. He always denied evt>r having :,;een it. Ife deniPd knowing anything about the matter <lown in tlw ha:-:ement in the elevator shaft. He newr sai<l he went <lown there himself betw<!en tlw time he eanw to tlw factory and -went to 2\loutag's. He never sai<l anything about Mr. l<'rank having hit her, or having hit
\rnr too hard, or about tip-toPs from the metal fl<>-
pa;tment. He said there wns no thought of h-mning
the body.
"On Ma.Y 18th we urnlPrtook in Chief Langford's office to eonvin<'e him he eoul<l write, and we understood he said he could not write and we knew hP could. vVe ronvinced him that we knew he <'Ould write and then he wrote.''

In his evidence before the jury in the re-direct
examination, Conley thought it necessary to account for the nwsh hag, and for the first time, said that '' Mary Phagan 's mesh hag was lying on Mr. Frank's desk and l\1r. 1'1rank put it in the safe." This is the first mention of the mesh bag.
rrhe first suggestion that was made of Frank being a penert was in Conley's testimony. On tlw stnnd, he dec-lare<l l11rank sai<l '' he was not lmilt like other men.''
There is 110 proof in the reeord of l11rank lwinga pervert. '11he situation in which Conley plaees him and upon Conley's testimony must that eharge rest, does not prove the ehargPs of perversion if Conley's testimon_v he true.
On argument before me, L aske<1 what motivt> Conley wouM have to make such a suggestion and the only reason given was that some one may have made him the snggeRtion heeause .Tews were cireumcised.
( 'onle_v, in his <>vidmH'<', Rhmrn hirnRelf amenahlP to suggestion. He says, " If yon te 11 a story, yon know yon have got to f'hange it. A lie won't -work and you know you have got to tell the whole truth."
Conley, in explaining wh~ hiR affidavits varied, said: "The reason -why I to1<1 that story was I do not want them to know that these other ,peoplr filii,se<1 _hy me for they n1igM aec11se me. r ao' not
~~~i~t peb1;fo to think that I was the one tlinC(lonp
th0 rnurdPr.''
AuTHOR OF THE Non~s.
Conley admits he wrote the notes found hy the hody of ~1ar~ Phagan. Did ],'rank dirtate them?
2il

ConlPy swPars he did. Tlrn State says that the use of the word "did" instead of "clone" inclicates a white man's clietation. Conley admits the spelling was his. The words are repeated and are simple, which characterizes Conley's letten,. In Conley's testimony, you will find frequently that he uses the word "did" and aC'cording to ealculatiou submitted to me, he used the word "did" over fifty times during the trial.
While Conley was in jail charged with being m! accessory, therp was also incarcerated in the jail, :1 woman named Annie Maude Carter, whom Conley had: met at the court houst>. She did work in the jail and formed the acquaintance of Conley, who wrote to her many lengthy letters. These letters are the most obscen(~ and lecherous I have ever read. In these letters, the word "did" is frequently employed. It will be observed that! in Conley's testimony, he uses frequently the word "negro," and in the Annie Maude Carter notes, he says: '' l have a negro watching you.''
'rhe Annie 1Iaude Carter notes, whieh were pmverful evidence in behalf of the defenclant, and which tended strongly to show that Conley was the real author of the murder notes, ?t'Cre 11ot before tl1e
,Jltry.
The word "like" is usPd in the 1\fnry Phagan notes, and one will find it frequently employed in Conley's testimony. The word "play" in the 1lar_\ Phagan notes, with an obseene significance, iR similarly employed in the Annie "Maude Carter not(~s. 'l'he snrne is true as to the vrnrds "lay" and "love."
Tn Conley's testirnon,Y, he nses the words '' make

water" ;just as tht>y am used in the ~l,11'~' Phagan notes.
In Conley's testimony he says the word '' hisself'' constantly.
It is urged by the lawyers for the defense that Conley's characteristic was to use double adjectives.
In the Mary Pliagan notes, l1e said "long tall negro, black," "long, slim, tall negro."
In his testimony Conley used expressions of this sort: "He -was a tall, slim build heavy man." "A good long wide piece of eord in his hands.''
Conley says that he wrote four notes, althougJ1 only two were found. These notes have in them 12Ef words, and Conley swears he wrote them in 2 1-2 minutes. Detective Scott swears he dictated eight words to Conley and it took him about six minutes to write them.
The statement is made hy Frank, and that statement is consistent with th< eYidence in the record, that the information tll[lt Conley couhl writ(~ came from :B~rank when he wns informed that Conley claimed he could not write. Frank says he did not disclose this before, beei,u:e:e lie ,ms not aware Conley had been at the factory on the 2(-Hh day of April, and therefore the materiality of whether Conley could write any more than any other negro employee had not been suggested to him. Frank :;;ays thaf he gave the information that Conley had signed receipts with certain jewelers, with whom Conley had dealings.
vVHERE VVERE THE NOTES ,VmTTE:N'?
At the time of the trial, it was not observed that the death notes written on brown paper was an or-

der blank, with the date line "Atlanta, Ga, _______ _ 190-." Subsequently the paper was put under a magnifying glass and in blue pencil, it was found that one Becker's name was written there. He had been employed at the factory on the fourth floor. Investigation was made and Becker testified that he worked for the pPncil factory from 1908 until 1912, and the order blank was No. 1018. During that entire time, he signed ordms for good.s and supplies. The brown paper on which the death note was written bears his signature, and at the time he left Atlanta in 1912, the Pntire supply of blanks containing the figures H)O'-----, had been exhausted and the blanks containing the figures "19L_" bad already bePn put in use. Becker makes affidavit that before leaving Atlanta, he personally packed up all of the duplieate ord.ers which had been filled and performed thPir functions, and sent them down to the basemPnt to be burned. -whether the order was carried out, he did not know.
In reply to this, the State introduced on the extraordinary motion, the testimony of Philip Chambers, who swears that unused order blanks
entitled "Atlanta, Ga., ______ , un __ ," were in the
office next to F'rank's office and that he had lHen in the basement of the factor.'' nnd found no books or papers left do-w11 tht>n' for any length of time, but same were always burned up.
This evidence was never passed upon by the jury and developed since the trial. It was strongly corroborative of the theory of the defense that the death notes were written, not in Frank's office, but in the basement, and especially in view of the evi-
32

dence of Police Sergeant Dobbs, who visited the scene of .the crime on Sunday morning, as follows:
'.L111is scrateh pad was also lying on the ground
close to the body. The scratch pad was lying near the notes. They were all right close together. There was a pile of trash near the boiler where this hat was fourn1, arn1 pap0r and pencils wNe down thert> too.''
Police Officer Anderson testifi0d: ,arhere are plent., of peneils and trnsh in the basement.'' Darley testific!d: '' I have seen all kinds of paper down in the basement. The paper that note is written on is a blnnk orr1er pad. That kind of paper is likely to be found all over the building for this renson, they write an order and sometimes fail to get a enrbon under it, and at other times, tlH'Y change the order and it gets into the trash. That kind of pad is used all over the factory." Over the boiler is a gas jet. Another feature which was not known at the trial and which was not pre>sented to the jury, but came up by extraordinary motion, was regarding . the hair alleged to have been found by Barrett on the lathe. The evidence on the trial of some of the witnesses ,vas that the hair looked like that of 1fary Phagan. It was not brought out at the trial that Dr. Harris had examined the hair under a microscope and b)' taking sections of it and comparing it with J\Iary Phagan's hair, thought that on the lathe was not :Mary Phagan 's hair, although he said he could not be certain of it.
This, however, would have heen the highest and best evidence.

The evidence as to the probability of the blank on which the death note was written being in tlw basement, and the evidence as to the hair, would have tended to show that the murder was not committed on the floor on which Frank's office was located.
T1rn Tmrn Qum.;noN.
The State contended that Jfary Phagan came to the office of Leo M. l11rank to get her pay at 'some time between 12 :05 and 12 :10, and that Frank had declared that he was in his office the whole time.
It is true tlrnt at the coroner's inquest held on rnrnrsday after the murder (page 364) he said he might have gone back to the toilet, but did not remember it. Howe,p1, in some of his testimony, Frank said he had n~mained tlH! whole time in his office. l\fonteen 8tover sw(ars that she eame into B'rank 's offiee at 12 :0,'j and rPrnairwd until 12 :10, and did not see Frank or anybody. She is unimpeached, and the only way to reconcile her evidencf' would be that she entered Frank's office, as shP states for the first time in her life, and <1icl not go into the inner room, where Frank claimed to have been at work. If 1''rank were at work nt his desk, he could not be seen from the outer room. Monteen Stover said she wore tennis shoes and her steps may not have attracted him.
However, the pertinenry of 1lonteen Stoyer's testimony is that Mary Phagan lrnd rome to gd her pay and Frank had gone with her back to the metal room and was in the process of killing her while Monteen Stover was in his offire, and this was at a time when he had derlared he was in his office.
34

The evidence loses its pertineney, if ~lary Phagan had not arrived at the time l\lonteen Rtover came. vVhat is the evidence I
The evidence uncontradicted discloses that Mary Phagan ate her dinner at 11 ::30 o'clock, and the evidence of the street car men was that she caugl1t the 11 :50 car, which was due at the corner of For:,.;yth and Marietta Streets at 1:2 :07 l-2. 'l'he distance from this place to the pencil factory is about one-fifth of a mile. It required from 4 to 6 minutes to walk to the factory, and especially would the time he enlarged, because of the crowds on the streets on Memorial Day.
vVhile the street ear men swear the car was on time, and while George Epps, a witness for the State, who rode with 1\fary Phagan, swears he left her about 12 :07 at the corner of Forsyth and Marietta Rtreets. '!'here is :,.;ome evidence to the effect that the car arrived according to eustorn, but might have arrived two or three minutes before schedule time. If so, the distance would have placed 1\fary Phagan at the pencil factory at some time between 1:2 :05 and 12 :10. 1\Ionteen Stover looked at tlw clock and says she entered at 1:2 :05. A suggestion is made that the time docks, which were punched h:v tlH~ employees, might have been fast. 'L'his propo-
:,.;ition was met by vV. -w. Hogers, who accompanied
the detectives to the seene of the murder on Sunday morning, and who testified (page 200) : "I know that both clocks were running, and I noticed both of them had the exact time.'' Therefore, Monteen Stover must have arrived before Mary Phagan, and while Monteen Stover was in the room, it

hardly seem1:, po1:,1:,ible nuder the evidence that Mary Phagan was at that time being murdered.
Lemmie Quinn testifies that lrn reached ~'rank's office about 12 :20 and 1:,aw ~[r. Frank. At 12 ::30 Mrn.J. A. white called to see her lmsbarnl at the factory where he was working on the fourth floor, and left again before one o'clock.
At 12 :50, according to Denham, J<'rank came up to the fourth floor and sai<l that he wanted to gPt out. r:I'he evidence for the defern,e tends to show that the time taken for moving the body, according to Conley's description, was so long that it could not have fitted the specific time at which visitors saw Frank. It will be seen that when Mrs. white came up at 12 :30, the doors below were unlocked.
Another feature of the evidence is that the ba<'k door in the baHement was the former means of egresH for Conley, when he deHired to escape his creditors among the employees. On Sunday morning, April 27th, the staple of this door had been drawn. Detective Starnes found on the door the mark1:, of what he thought W<~re hlo0<ly finger-prints, and he chipped off two piect>s from tlw door, which looked like "bloody finger-prints." 'rhc evidenc<> dot>s not disclose further investigntion ns to whether it was blood or not.
'l'he motive of this murder may he either robbery, or robbery and assault, or assault.
There is no suggestion that the motive of Frank would be robbery. The mesh bag was in Mary Phagan's hands and was described by Conley, in his re-direct examination, at tlw trial for the first time. The size of thP me1:,h bag, I cannot tell, hut since a bloody handkerchief of ~lar.v Phagan 's was
36

found by her side, it was urged 11pfore me by <'<HlllHel for the defense, that ladies usually carried their handkerchiefs in their mesh bags.
If the motive was assault, either hy natural or perverted means, the ]lhysicians' evidence, who made the examination, does not disclose ifa accom11lishment. Pervcrnion hy none of the suggest,:} means could have occasioned the flood of blood. The dodors t<_,stified that excitement might hav<> oecasioned it under certain conditions. Under the evidence, which is not set forth in detail, there is every probability that the virtue of :'.Yiary Phagan was not lost on the 26th da_\~ of April. Her mesh bag was lost, and there can he no doubt of this. The evidence shows that Conley was as depraved and lecherous a negro as ever lived in Georgia. He la,\ in watch nrnl described th<-! clotlws nrnl stockingH of the women who went to the faetor_\.
His story necessarily bears tl1c eonstrudion that Frank had an engagement with l\lar,\' Phagan, whiel1 no evidence in the case would justify. If Frank hnd <~ngaged Conley to watch for him, it <'ould only have been for l\lary Phagan, since he mndP no improp(~1 suggestion to any otlH'J' fernalP on tl1at da), and it was undisputed that many di<l com<' up prior to 12 :00 o'clock, and whom could Frank have heen expecting except ]\[ary Phag,rn under Conley's story. This view cannot he entertained, as an unjustifiable reflection on the young girl.
why the negro wrote the notes is a matter open to conjecture. He had lwcn drinking heavily that . morning, and it is possible that he undertook to describe the other ll<'gro in the building so that it would avert suspicions.
37

It may he possible that his version is correct. The testimony discloses that he was in the hahit of allowing men to go into the basement for immoral purposes for a consideration, and when "Mary Phagan passed by him close to the hatchway leading into the basement and in the gloom and darkness of the entrance, he ma~' have attacked her. \\That is the truth we may never know.
,JURY'S VEBDICT.
rI1he jury which heard the evidence and saw the witnesses found the defendant, Leo l\L Frank, guilt~ of murder. rrhey are the ones, under our laws, who are chosen to weigh evidence and to determine its probative value. They may consider the demeanor of the witnesses upon the stand and in the exercise of common sense will arrive with wonderful accuracy at the truth of the contest.
.J l!lJTCIAHY.
Under om law, the only authority who can review the merits of the ras(~ and question the justice of a verdict whieh has any evidence to support it, is the trial j1H1gP. rl'he Supreme Court is lirnitnl hy the Constitution and the ('OIT<'etion of errors of law. rrhe Supreme Court found in the trial no error of law and determined as a matter of law, and correctly in my judgm<'nt, that there was sufficient evidence to sustain the verdict.
But under our judicial system, the trial judge is called upon to exerei se his wise discretion, and he cannot permit a verdict to stand which he helien's to he unjust. A sugg<'stion in the order ovt>r-

ruling a motion for a new trial, that the judge was not satisfied with the verdict, 'irnuld demand reYersal by the Supreme Court.
In this connection .Judge Hoan deelared orally from the bench that he was not certain of the defendant's guilt-that with all the thought he had put on this case, he was not thoroughly convinced whether Frank was guilty, or innocent-but that he did not have to be convinced--tlrnt the jury was convinced and that there was no room to doubt that -that he felt it his duty to order that the motion for a new trial be over-ruled.
This statement was not Pmhodie<l in the motion over-ruling new trial.
Under bur statute, in eases of conviction of murder on circumstantial Pvid<n<'e, it is within thP discretion of the trial judge to s<mteme the d<~fPrnlant to life imprisonment (Code SPetion G:3).
rrhe conviction of Frank was on circumstantial evidence, as the solieitor-gP1wral admits in his written argument.
.Judge Roan, however, misemrntrued his power, as evidenced by the following charge to the jury in the case of the State against ],'rank:
"If you believe beyond a reasonable doubt from the evidence in this case that this defendant is guilty of murder, then, you would be authorized in that event to say, '"\Ve, the jury, find the defendant guilty.' Should you go further, gentlemen, and say nothing else in your verdict, the .court would have to sentence the defendant to the extreme penalty of murder, to-wit: ''l'o he hangPd by the neck until he is dead.' ".
:rn

8urely, if ,Judge Roan entertained the extreme doubt indicated by his statement and had remembered the power granted him by the Code, he would have sentenced the defendant to life imprisonment.
In a letter -written to counsel he says, "I shall ask the prison commission to recommend to the governor to commute Frnuk 's sentence to life imprisonment , ' * '~ . lt is possible that I showed undue deference to the jury in this case, when I allowed the verdict to stand. They said by their verdict that they bad fournl the truth. 1 was in a state of uncertainty, and so expressed myself ij,, * * * . After many months of eontinued deliberation, I am still uncertain of l<'rank's guilt. This state of uncertainty is largely due by the character of the Conley testimony, by -which the verdict was largely reached.
"Therefore, I consider this a ease in whi<'h th0 chief magistrate of the State should exert evPr> effort in ascertaining the truth. The execution of any person, whose guilt has not been satisfactorily proven, is too horrible to contemplate. T do not believe that a person should meet with the extreme penalty of the law, until the court, jury and governor shall have all been satisfie<l of that person's guilt. Hence, at the proper time, l shall express and enlarge upon these views, directly to the prison eommission and governor.
"However, if for an) c11use T am prevented from doing this, you me at libert.'- to use this letter at the hearing.''
It will thus be obsernd that if commutation is granted, the verdict of the jury is not attacked, but the penalty is iniposed for murder, -which is provi,l-
40

ed by the 8tate and which the judge, except for hi:,; misconception, would have imposed. ,,Vithout attacking the jury, or any of the courts, I would be carrying out the will of the judge himself in making the penalty that which he would have made it and which he desires it shall be made.
In the case of Hunter, a white man charged with assassinating two white women in the City of Savannah, who was found guilty and sentenced to be hung, application was made to me for clemency. Hunter was charged together with a negro witl, having committed the offense, and after he was convicted the negro was acquitted. It was brought out by the statement of the negro that another negro who was half-witted committed the crime, but no credence was given to the story, and he was not indicted.
The judge and solicitor-genera] refused to recommend clemency, but upon a review of the evidence, and because of the facts and at the instance of the leading citizens of Savannah, who were doubtful of the guilt of defendant, I commuted the sentence, in order that there should be no possibility of the execution of an innocent man. This action has met with the entire approbation of the people of Chatham County.
In the case of John wright in Fannin Count~-, two men went to the mountain home of a citizen, called him out and shot him and were trampling on his body, when his wife, with a babe in her arms, came out to defend her husband. One of the men struck the babe with his gun and killed it. Wright was tried, found guilty and sentenced to death. F}vi-
dence was introduced as to his borrowing a gun.
Bis threats, his escape after the shooting occurred

at the time he was an escape from the Fannin County jail under indictment for felony.
I refused to interfere unless the judge, or solicitor, would recommend interference, which they declined to do. :F'inally, when on the gallows, the solicitor-general recommendefl a reprieve, which l granted, and finall.'- on the recommendation of tliP judge and solicitor-general, as expressed in my order, I reluctantly commuted the sentence to life imprisonment. The doubt wns suggested as to tl1e identity of the criminal and as to the credihilit.'- of the testimony of prejudiced witnesses. '11 he erime was as heinous as this one and more so.
In the ]'rank case three matters have developed since the trial which did not come before the jury, to-wit: the Carter notes, the testimony of Becker, indicating that the death notes were written in the hasement, and the testimon.', of Dr. Harris, that he was under the 'impression tliat the hair on the lathe was not that of Mary Phagan, and thus ten<ling to show that tlw crimP was not committe<l on the floor of Frank's offiee.
while made the subject of an cxtraordinar.' motion for a new trial, it is well known that it is almost a practical irnpossihility to have a verdict set aside by this proeedure.
The evidenee migl1t not have changed the verdict, but it might have caused the jury to render a Yerdict with the recommendation to mercy.
In any event, the performance of my duty under the Constitution, is a matter of my conscience. Th( responsibilit.' rests when the power is reposed. .Tndge Roan, with that awful sense of responsihilit.'-, which prohahl., came onr him as he tl10'ught of
42

that ,Judge hefore ,Vhom he would shortly appear, calls to me from another world to recp1est that I do that which he should have done. I can endure misconstruction, abuse and condemnation, but I cannot stand the constant companionship of an accusing conscience, which would remind me in every thought that I, as Governor of Georgia, failed to do what T thought to be right. There is a territory "beyond A REASONABLE DOUBT and absolute certainty," for which the law provides in allowing life imprisonment instead of execution. This case has been marked by doubt. The trial judge doubted. Two judges of the Supreme Court of Georgia doubted. Two judges of the Supreme Court of the United States doubted. One of the three prison commissioners doubted.
In my judgment, by granting a commutation in this case, T am sustaining the jury, the judge, and the appellate tribunals, and at the same time am discharging that duty which is placed on me by thA Constitution of the State.
Acting, therefore, in accordance with what I believe to be my duty under the circumstances of this case, it is
ORDERED: That the sentence in the case ot' Leo ::\L Frank is commuted from the death penalty
to imprisonment for life.
This 21st clay- of .June, l 915.
Governor.
43