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102. Movant further says that a new trial should be granted because of
the following:

The Solicitor-General, in his concluding argument, in referring to act of
Judge Roan discharging the witness Conley, from custody, stated:
"Judge Roan did it, no reflection on the Sheriff, but with the friends of
this man, Frank, pouring in there at all hours of the night, offering him sand-
wiches and whiskey-and threatening his life, things that this Sheriff, who is as
good as the Chief of Police but no better, couldn't guard against because of
the physical structure of the jail, Jim Conley asked, and His Honor granted the
request, that he be remanded back into the custody of the honorable men who
manage the police department of the City of Atlanta."
Whereupon the following occurred:
Mr Rosser: No, that's a mistake, that isn't correct, your Honor discharg-
ed him from custody, he said that under that petition your Honor sent him
back to the custody where you had him before, and that isn't true. Your
Honor discharged him, vacated the order, that's what you did.
Mr Dorsey: There's an order committing him down there first-you are
right all that, I'm glad you are right on that time.
Mr Rosser: That's more than you have ever been.
Mr Dorsey (resuming): No matter what the outcome of the order may
have been, the effect of the order passed by His Honor, Judge Roan, who pre-
sides in this case, was to remand him into the custody of the police of the City
of Atlanta.
Mr Rosser: I dispute that, that isn't the effect of the order passed by
his Honor, the effect of the order passed by his Honor was to turn him out, and
they went through the farce of turning him out on the street and carrying
him back. That isn't the effect of your Honor's judgment. In this sort of
case, we ought to have the exact truth.
The Court: This is what I concede to be the effect of that ruling: I pass-
ed this order upon the motion of State's counsel, first, is my recollection, and
by consent of Conley's attorney.
Mr Rosser: I'm asking only for the effect of the last one.
The Court: On motion of State's counsel, consented to by Conley's attor-
ney, I passed the first order, that's my recollection. Afterwards, it came up
on motion of the Solicitor-General, I vacated both orders, committing him to
the jail and also the order, don't you understand, transferring him; that left
it as though I had never made an order, that's the effect of it-
Mr Rosser: Then the effect was that there was no order at all?
The Court: No order putting him anywhere.
Mr Rosser: Which had the effect of putting him out?
The Court: Yes, that's the effect, that there was no-order at all."
Mr Dorsey (resuming): First, there was an order committing him to
the common jail of Fulton county; second, he was turned over to the custody
of the police of the city of Atlanta, by an order of Judge L. S. Roan; third,
he was released from anybody's custody, and except for the determination of
the police force of the City of Atlanta, he would have been a liberated man,
when he stepped into this Court to swear, or he would have been spirited out
of the State of Georgia, so his damaging evidence, couldn't have been adduced
against this man.

The Court erred in allowing the Solicitor-General to make the foregoing
argument, over objection, which was not authorized by the evidence, and in
not rebuking and correcting the Solicitor-General; and because of such failures
121

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