Tuesday, 24th February 1914: Jim Conley Is Sentenced, The Atlanta Georgian

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PAGE 1, COLUMN 8

NEGRO FOUND GUILTY AS FRANK AID

Defense of Doomed White Man

Gives Twenty-one Grounds for

Reconsideration of Appeal.

Jim Conley's conviction on the charge of being an Accessory after the Fact in the murder of Mary Phagan, and the filing by Leo Frank's counsel of a motion for a Rehearing of Arguments before the Supreme Court, were Tuesday's important developments in the Frank Case.

It took the Jury only 12 minutes to find the Negro Conley guilty of the misdemeanor charge, Judge Hill having ruled that the Felony charge could not be pressed. Inside of another minute, the Judge had called Conley before the Bar and sentenced him to 12 months in the Chain Gang the limit.

Solicitor Dorsey clearly indicated that his personal desire was that Conley be set free, but that he was bound by the Law and the evidence to ask for a conviction if the Jurors entertained no reasonable doubt of his guilt.

Hair Strands Again Figure.

The strands of hair found on a lathe in the Pencil Factory Metal Room figured again in Tuesday's trial. The Solicitor showed that he was not at all ready to give up his contention that they were from the head of the murdered Factory girl, in spite of Dr. H. F. Harris' belated acknowledgment that, in his opinion, the hair was not Mary Phagan's.

Twenty-one grounds for a Rehearing of Arguments in behalf of a reversal of the Lower Court were set forth by Frank's Lawyers in their motion filed with the Supreme Court. All of them contended that the higher Court, in handing down its recent unfavorable opinion, overlooked material points in the written and oral Arguments that were made by the attorneys for the Defendant.

No Oral Argument.

There will be no oral Argument on the motion for Rehearing. The judges may announce their Ruling at any time after reviewing the reasons submitted in the motion.

In the event of an unfavorable Decision, Frank's Lawyers are expected at once to file an extraordinary motion for a new trial on the ground of newly discovered evidence. They will cite Dr. Harris' Statement, the repudiation of his testimony by Albert Mc Knight, and a number of other points that have not been made public yet.

The trial of Jim Conley ended at 11:08, when the Jury returned with its verdict of guilty.

Conley Refuses to Talk.

Conley, asked for a Statement as he was being led back to the Tower, had only this to say: "No, sir; I don't want to talk to nobody about nothing."

Albert Mc Knight, sought for by half a dozen detectives from the city department and by attaches of the Solicitor's Office, could not be found in time to become a witness at the trial. He was earnestly desired by the Solicitor, who wished to grill him on his astonishing confession of perjury which was made public last Saturday night.

Solicitor Dorsey spoke briefly in his closing address. He said:

"Jim Conley helped Leo M. Frank murder Mary Phagan, and the Defense admits it. It is a remarkable Fact that no one ever has been produced to controvert Conley's Statements except Leo M. Frank, a convict under Sentence of death; and Conley says that he met Frank by previous Agreement on the day Mary Phagan was murdered."

Witness Saw Negro on Stairs.

"Mrs. Arthur White saw the Negro sitting on a box at the foot of the stairs in the Pencil Factory just where Continued on Page 4, Column 1."

PAGE 4, COLUMN 1

CONLEY GETS YEAR IN CHAINGANG AS ACCESSORY

21 Grounds Are Given for Rehearing in New Frank Plea

Appeal Declares High

Court Overlooked Vi-

tal Points in Argu-

ment for Retrial for

Doomed Man.

Continued From Page 1.

Jim says he was sitting. Mrs. White says that she went into Frank's Office at 12:30 and that Frank was at the safe with his back toward her, and that he jumped as though he were frightened when he saw her in the room."

"Conley says that he saw the girl go upstairs; that he heard footsteps going to the rear of the Factory, as though she and Frank were going to the metal room; that he heard a girl's scream."

"Blood was found on the second floor. It was pointed out by Conley as one of the places where he and Frank had dropped the body of the slain girl. It was just another piece of evidence in the mountain that showed Conley was aiding that consummate actor, Leo Frank, in hiding the body."

"The hair was found on the lathe Monday morning by Barrett. He said that it was not there Friday night. There was no one working Saturday in the metal room. How did the hair get there?"

Undertaker Washed Hair.

"If it were permissible, I would tell you whose hair I think it was. As I am not permitted, I ask you what you think about it. Grace Hix and Barrett believed it to be Mary's. Magnolia Kennedy testified that it looked like Mary's. Gheesling tells you that he washed the hair with pine tar soap and that this would make it much lighter, which would account for any difference in appearance that Dr. Harris or anyone else might have discovered."

"The hair on top of the head is different in size and color from the hair on other parts of the head. Some single hairs have three different colors. There's a difference between hair that is alive and hair that is dead. The hair found on the lathe Monday morning and shown to a girl later is different from what it was when found. This hair proposition is ridiculous. I say the evidence clearly shows that the hair was Mary Phagan's."

"Jim Conley heard that girl scream and he went and helped Frank take the body to the basement, and he promised to come back and help Frank burn that body. Thank God old Jim did drink! And I thank God that after he got out from under the influence of Frank and the whiskey he didn't go back."

"I take no pleasure in prosecuting this Negro. I am sorry it couldn't all be put upon Leo Frank, the man who was really acting when Conley wrote those notes."

Would Free Conley.

"This so-called mystery is no mystery at all. His Honor is the one to say what Conley's fate shall be. Personally, I feel kindly toward Jim Conley, and if the Law and the Fact didn't demand that I ask his conviction, I would say let him go and hide out as Albert Mc Knight has done. I don't care how far he goes, nor where he goes, nor who gives him the money. If you have any reasonable doubt that Conley is guilty, I say let him go. I say he is guilty and that you can give only the verdict of guilty."

At the conclusion of Mr. Dorsey's speech, Mr. Smith, for the Defense, again addressed the Jury.

"My friend Dorsey has talked much, but he has not shown to you that Jim Conley is an Accessory after the Fact in the murder of Mary Phagan," said he.

"Wherein did Dorsey show you this man had ever concealed the Facts in this Case from the Magistrate? Dorsey says Conley lied and lied and lied. He did, but he lied to protect himself and not to protect Frank. Conley had no knowledge of a murder. Frank's only Statement to him was that he had struck a little girl and did not know how badly she was hurt. The Law says the Accessory must have a full knowledge of the Facts of a murder before he can be an Accessory."

Didn't Know Girl Was Dead.

"By Frank's own Statement to Conley, Frank could be convicted only of involuntary manslaughter. The only way Conley was an Accessory of Frank's was in that he aided Frank in furthering his sexual desires. Frank sent Conley to the metal room to bring the girl to the front because neither of them knew how badly she was hurt. When Conley put his hands upon that girl, he thought she was merely hurt. Never once in Frank's testimony or in Conley's Statement or in any other Statement is it shown that Frank even intimated to Conley what he intended to do with the body."

"Frank shoved Conley back toward the elevator after Conley started to bring the body up in the front of the Factory. Frank ran the elevator."It was Mary Phagan's bonnet that Leo M. Frank told Conley to burn in the basement furnace, not the girl's body. Conley wrote the notes, but he had no intimation those notes were to be placed beside the body in the basement. Even if Conley had been asked to burn the body, the fact remains that he didn't go back to the factory, even to burn the bonnet. And whatever Conley may have known when he found himself to be in danger, he had a perfect right to keep his mouth shut, particularly after he was arrested on suspicion of being a murderer.

The State names no date upon which Conley was an accessory of Leo M. Frank in the murder. Under the law, the fact that Jim didn't rush out and tell all he knew about the case to a magistrate, and his silence in jail, didn't make him an accessory after the fact.

Only Trying to Protect Himself.

Throughout this case, it is shown that Conley was ever seeking to protect himself. Didn't he say to Frank in the office, after the girl was dead, and after Frank had said, "Why should I hang? I have wealthy people in Brooklyn," didn't he say, "But, Mr. Frank, what's to become of me?"

Conley acted throughout on the principle of saving himself. Therefore, you must acquit him because he had a right to do what he did.

Mr. Smith concluded his argument at 10:40 and Judge Hill began his charge to the jury.

The Court disposed of the indictment charging Conley with the felony of harboring or protecting Leo M. Frank personally.

"The indictment against Conley for your consideration is that he is guilty of having concealed knowledge of the murder of Mary Phagan from the magistrate," Judge Hill told the jury. "If you believe that Conley did not know that Frank had committed a murder, or if you have a reasonable doubt that he had such knowledge, you must acquit the defendant," he added.

PAGE 4, COLUMN 2

21 Grounds Set Forth In New Frank Appeal

The twenty-one grounds for a new hearing, as filed with the Supreme Court Tuesday, in effect are as follows:

Because the Court, in rendering the decision in said case, overlooked the material facts in the record, to wit: Ground 58 of the motion for new trial, which related to the testimony of Miss Cate regarding Rebecca Carson's entering the dressing room with Frank.

Said ground just quoted set up material facts constituting error in said case, which the Court in the decision rendered overlooked.

Because the Court, in rendering the decision in said case, overlooked the material facts in the record, to wit: Ground 59 of the motion for new trial, which related to the testimony of Maggie Griffin; also in reference to the alleged conduct of Miss Carson and Frank.

The ground just quoted set up material facts constituting error in said case, which the Court, in the decision rendered, overlooked, and which were not considered in said decision, which appears from the face thereof.

Relating to Lee's Testimony

Because the Court, in rendering the decision in said case, overlooked the material facts in the record, to wit: Ground 1 of the motion for new trial, which related to Lee's testimony in regard to the length of time Detective Black talked to him in comparison to the length of time Frank talked to him the night of April 29.

Because the Court, in rendering the decision in said case, overlooked the material facts in the record, to wit: Ground 2 of the motion for new trial, which reads as follows:

"Because the Court erred in permitting over objections the witness Lee to testify that Frank, on April 29, when alone with him at the station house, talked to him a shorter time than did Mr. Arnold, one of Frank's attorneys, when he interviewed the witness just before the trial."

Because the Court, in rendering the decision in said case, overlooked the material facts in the record, to wit: Ground 7, which related to the testimony of the witness Black that Frank had counsel, Messrs. Rosser and Haas, about 8:00 or 8:30 o'clock Monday morning while Frank was in the station house, brought there by detectives Black and Haslett.

Error Charge Overlooked

Because the Court overlooked the material facts in the record, to wit: Ground 16, which charged errors because the Court, over objection of the defendant, permitted the witness, Mrs. White, to testify that Arthur White, her husband, and Campbell were both connected with the Pencil Company and that she never reported seeing the Negro on April 26, 1913, (which she testified she did see in the Pencil Factory) to the city detectives until May 7, 1913.

Because the Court overlooked Ground 23, which charged error because the Court permitted, over the defendant's objection, the witness S. L. Rosser to testify that he visited Mrs. Arthur White subsequent to April 26; that the first time the witness ever claimed to have seen the Negro at the factory when she went into the factory on April 26 was some time about the 6th or 7th of May.

Ground 23 said:

"This was particularly prejudicial to the defendant, because the solicitor contended in his argument to the jury that the fact that factory employees did not disclose the fact that Mrs. White saw the Negro on April 26 was evidence that the defendant was seeking to suppress testimony material to the discovery of the murderer."

Scott Testimony Attacked

Because the Court overlooked Ground 26, which charged error because the Court, in permitting the witness, Harry Scott, to testify over the objection of defendant that he did not get any information from anyone connected with the National Pencil Company that the Negro Conley could write, but that he got his information as to that from entirely outside sources, and wholly disconnected with the National Pencil Company.

Because the Court overlooked Ground 27, which charged error because the Court permitted the witness, Harry Scott, to testify over the objection of defendant's counsel that the witness first communicated Mrs. White's statement about seeing a Negro on the street floor of the Pencil Factory on April 26, 1913, to Black, Chief Lanford, and Bass Rosser; that the information was given to the detectives on April 28.

Because the Court overlooked Ground 32, which charged error because the Court erred in declining to allow the witness, Miss Hall, to testify that on the morning of April 26, and before the murder was committed, Mr. Frank called her over the telephone, asking her to come to the Pencil Factory to do stenographic work, stating at the time he called her that he had so much work to do that it would take him until 6 o'clock to get it done.

Time Figures Prominently

Because the Court overlooked Ground 34, which charged error because, while Mrs. Freeman was on the stand, after testifying as to other things, she testified that while she and Miss Hall, on April 26, were at the restaurant immediately contiguous to the Pencil Factory, and after they had left the factory at 11:45 o'clock a.m., and had had lunch, that Lemmie Quinn came in and stated that he had just been up to see Mr. Frank. Upon motion of the solicitor, this statement that he had been up to see Mr. Frank was ruled out as hearsay. Lemmie Quinn's statement that he was in Frank's office just before going into the restaurant was of the greatest moment to the defendant, because it strongly tended to dispute the contention of the State that Mary Phagan was killed between 12 and half past.

Because the Court overlooked Ground 55, which charged error because the Court permitted the witness L. T. Kendrick, over the objection of the defendant, to testify substantially as follows:

"The clock at the Pencil Factory, when I worked there, needed setting about every 24 hours. You would have to change it from about three to five minutes, I reckon."Because the Court overlooked Ground 67, which charged Error because the Court erred in failing to charge the Jury that if a witness knowingly and willfully swore falsely in a material matter, his testimony shall be rejected entirely, unless it be corroborated by Facts and circumstances of the Case or other creditable evidence.

Again Attack Scott

Because the Court overlooked Ground 54, which charged Error because the Court permitted the witness Scott to testify in behalf of his agency, over the objection of the Defendant, as follows: "I got hold of the information about Conley knowing how to write through my operatives that I had investigating while I was out of town. Mc Worth told me in person when I returned."

Because the Court overlooked Ground 53, which charged Error because the Court permitted the witness J. M. Gantt, over the objection of the Defendant, to testify that the clock of the Pencil company was not accurate, and that it may vary all the way from three to five minutes in 24 hours.

Evidence as to Club.

Because the Court overlooked Ground 42, which charged Error because the Court permitted Mc Worth, at the instance of the Solicitor General, to testify over the objections of the Defendant: "I reported it (the finding of the club and envelope) to the police force about 17 hours afterward. After I reported the finding, I had a further conference with the police about four hours afterward. I told John Black about the envelope and the club. I turned the envelope and club into the possession of H. B. Pierce."

Because the Court overlooked Ground 35, which charged Error because the Court permitted, at the instance of the Solicitor General, the witness Sig Montag to testify over the objection of the Defendant that the National Pencil Company employed the Pinkertons; that the Pinkertons have not been paid, but have sent in their bills; that they sent them in two or three times; that otherwise no request has been made for payment, and that Pierce, of the Pinkerton Agency, has not asked the witness for payment.

Charges Error to Court

Because the Court, in rendering the decision in said Case, overlooked the Case of Collier vs. the State, reported in 115 Georgia, page 803. In said Collier Case, it was held broadly as the headnote reads that the plaintiff in Error did not have a fair and impartial trial in the manner contemplated by Law, which is guaranteed to him by the constitution of this State, and that whether the verdict was or was not supported by the evidence, it should, for that reason, be set aside.

Plaintiff in Error submits that the decision in the Case at bar is contrary to the decision in the Collier Case, in the Wolfolk Case, and in the Case of Smith vs. Lovejoy; and as neither of said decisions is quoted or referred to in the opinion, plaintiff in Error respectfully submits that they were overlooked by the Court.

Plaintiff in Error respectfully submits that the Court overlooked the Facts stated in Ground 89 of the motion, which was referred to and argued on page 198 of the printed brief of plaintiff in Error, which refers to the testimony of the witness Owens regarding car schedules.

No Bearing on Case.

Counsel for the Defendant conclude that the Court overlooked the special point made on the testimony of Owens to the effect that whether the testimony is generally admissible or not, showing this car to have come in ahead of schedule time at and before the day of the tragedy that after the date of the tragedy it could have no possible bearing on the Case.

Plaintiff in Error contends that the Court, in deciding such Case, overlooked the following material proposition in deciding upon the admissibility of the witness Conley's testimony. Plaintiff in Error submits that inasmuch as the alleged remark about "not being built like other men," made by the accused according to Conley's testimony, was no evidence of any transaction between the accused and deceased; that it could not be explained by, or made the basis for, the evidence of other unnatural crimes as testified to by the witness Conley.

Judge Roan's Expression

Plaintiff in Error shows that in the nineteenth headnote, the Court recites that where the order overruling the motion for new trial contains nothing which could indicate that the judge was dissatisfied with the verdict or that he failed to exercise his discretion: "The Supreme Court will not, in determining whether the judge has exercised such discretion, consider oral remarks by him, pending the disposition of the motion."

Plaintiff in Error contends that the remarks made by the judge, which form the basis of the ground under consideration, were not merely made pending the disposition of the motion for new trial but were part of the oral judgment delivered by the Court, disposing of the motion. They were as much a part of the decision of the motion for new trial as that part of the decision which denied the new trial, and it so appears in the bill of exceptions, and Plaintiff in Error contends that the Court overlooked this Feature of the Record.