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The Atlanta Georgian,

Thursday, 16th April 1914,

1st Edition,

PAGE 2, COLUMN 4.

Interest Centers in Disposition of Extraordinary Motion Delay of Execution Certain.

With only a day intervening before the date set for the execution of Leo Frank, interest centered Wednesday in the probable outcome of the extraordinary motion which will be filed Thursday with Judge Hill.

Frank is under sentence to be hanged on Friday, but it is regarded as certain that his execution will be delayed for weeks and possibly months.

Judge Hill may make any one of three dispositions of the motion for a new trial. He may deny it at once without allowing the lawyers for the defense an opportunity to offer oral arguments. Should Solicitor Dorsey announce that he had no counter-showing to make, the judge could permit the hearing to go on at once.

Fixing of Hearing Likely.

The probable procedure, however, will be the setting of a date for a hearing on the motion and the issuance of an order superseding the sentence to hang. Should the motion be denied by Judge Hill Thursday, Frank's lawyers can make an appeal to the Supreme Court which will have the effect of staying execution while the appeal is under consideration. The defense also will have recourse to an appeal in the event that the motion is denied after a hearing of arguments. The Supreme Court hearing is immediate.

Solicitor Dorsey was expected to return to Atlanta Wednesday afternoon to complete his preparations for fighting the extraordinary motion. He has been in Valdosta nearly a week working on the case. He has a number of counter affidavits in his possession with which he proposes to combat the new evidence which has been obtained by Frank's lawyers. If he files these with Judge Hill, it is likely that counsel for the defense will ask for time in which to prepare replies.

Georgia practice ordinarily gives a defendant every opportunity to show reason for a new trial and to appeal to the higher court where it is apparent that the motion is made in good faith. For this reason, persons interested in the case anticipate that there is no probability that the sentence of hanging will be carried out Friday.

Burns Has Not Returned.

Detective Burns had not returned to Atlanta Wednesday from his trip to Chicago and other cities where he went last Saturday night in connection with the case. His findings will not be incorporated in the extraordinary motion for a new trial as it is filed Thursday, the intention being to await the completion of his investigation and then place his entire report in the motion in the event that it is favorable to Frank.

Solicitor Dorsey has expressed a doubt as to the legality of amending the extraordinary motion after it is filed and it is supposed that he will oppose any move of the sort. Counsel for Frank say that they have no uneasiness on this point. They declare they are privileged to amend the motion right up to the time of the arguments.

The extraordinary motion will be filed with Judge Hill in his court room at the Thrower Building at 10 o'clock Thursday morning. Judge Hill will then set the date for the hearing and issue the order to stay the execution.

2nd Edition, PAGE 1, COLUMN 1

3rd Edition, PAGE 1, COLUMN 1

MOTION FOR NEW TRIAL IS MADE

Dr. Roy Harris Among the Witnesses Summoned to Back

Grounds for Rehearing.

Thursday saw the opening of another chapter in the fight for a new trial for Leo Frank. The full staff of his counsel Luther Rosser, Reuben R. Arnold, Herbert Haas and Leonard Haas were in Judge Hill's courtroom early to present to the court the extraordinary motion for a new trial for their client, on the grounds of newly discovered evidence, as set forth in the notice served some weeks ago on Solicitor Hugh Dorsey.

This process does not automatically defer the execution of the death sentence on Frank, but there is no doubt that Judge Hill will issue a stay until he has passed on the plea.

Not only the lawyers for the defense will be in court, but also a number of witnesses called by the defense and subpoenaed in due form. The principal one will be Dr. Roy Harris, whose testimony will be concerning his microscopic examination of the hair found on a lathe in the pencil factory. This, it was contended by the prosecution, was the hair of Mary Phagan. Later Dr. Harris stated that he had reported it not to be her hair, but on the witness stand he was not asked concerning it.

Declined to Sign Affidavit.

Dr. Harris was asked by counsel for the defense to sign an affidavit to that effect, but declined, whereupon he was subpoenaed to appear at the hearing of the motion for a new trial.

Attorneys for the defense asserted that while no change or amendment would be made at this time in the motion originally supplied to Mr. Dorsey with notice of its presentation, it was practically certain that amendments and additions would be made later. It is understood that these will be based on the results of the investigation by William J. Burns.

Burns departed from Atlanta last Saturday afternoon, keeping his mission a secret. He had not returned Thursday, but was expected at any time.

New Grounds Set Up.

The grounds for a retrial contained in the motion presented Thursday consist principally of the repudiation of testimony by witnesses for the State in the first trial, together with the statement of Mary Rich, who says she saw Jim Conley emerge from the alley in the rear of the pencil factory at 2:15 o'clock the afternoon of the murder; the hair evidence, and the testimony concerning the Becker signature on the "death notes."

Judge Hill, on the presentation of the motion, can either refuse to grant a hearing or take the motion under consideration. In this event, which is the one anticipated, he will set a date for a hearing at which both sides will argue the motion.

4th Edition, PAGE 1, COLUMN 8

5th Edition, PAGE 1, COLUMN 8

PLEA ASKS VERDICT BE SET ASIDE

Absence of Accused and Attorneys From Court When Jury Reported Chief Technical Point.

Leo M. Frank will not die on his thirtieth birthday. That much, at least, was definitely settled Thursday when Judge Ben Hill issued a writ staying the execution set for Friday and setting next Wednesday, April 22, as the day for the hearing on the extraordinary motion for a new trial.

Something of a surprise was sprung in behalf of the prisoner when a long petition declaring that his constitutional rights had been violated when the jury returned its verdict in his absence was filed with Judge Hill, who was asked to grant a new trial on that ground also.

New Attorneys Sign Plea.

The petition, which was signed by Tye, Peeples and Jordan, Herbert and Leonard Haas and H. A. Alexander, declared that Frank had not been informed of the plan suggested by Judge Roan to Luther Rosser and Reuben Arnold that he should not be brought into court to hear the verdict. Frank declares that if any agreement was made by Rosser and Arnold it was entirely without his consent or knowledge.

The filing of the petition is more or less of a formality, so that in the event of its refusal the case can be carried to the Supreme Court of the United States on constitutional grounds.

Judge Hill announced that he would hear arguments on the extraordinary motion, as well as the constitutional appeal, next Wednesday. The evidence gathered by William J. Burns probably will be incorporated in the grounds for a new trial at that time.

Here is the petition questioning the constitutionality of the verdict:

Move to Set Aside Verdict. Now comes Leo M. Frank, the defendant in the above stated cause, against whom in said cause a verdict of guilty of murder was received by the court on August 25, 1913, and moves the court to set aside said verdict for the following reasons:

Because at the time that said verdict was received and the jury trying the case was discharged, this defendant was in the custody of the law and incarcerated in the common jail of said county. He was not present when said verdict was received, and the said jury was discharged, as he had the right in law to be, and as the law required that he should be. He did not waive said right, nor did he authorize anyone to waive it for him, nor consent that he should not be present. He did not even know that said verdict had been rendered and said jury discharged until after the reception of the verdict and discharge of the jury, and until after sentence of death had been pronounced upon him.

Because while in point of fact the statements above made are true, yet

4th Edition, PAGE 2, COLUMN 1

5th Edition, PAGE 2, COLUMN 1

NEW PLEA FILED FOR FRANK; HEARING APRIL 22; EXECUTION STAYED

Continued From Page 1.

the presence of this defendant at the reception of said verdict was a legal right of defendant and a requirement of law which could not be waived even by this defendant himself, the charge upon which this defendant was tried being a charge of murder, subjecting him to possible deprivation of his life, and which waiver would be not only a renunciation of a right which the law had established in his favor, but would be a renunciation affecting the public interest.

Threats of Violence.

Because on the day said verdict was rendered, and shortly before Hon. L. S. Roan, the judge who presided upon the trial of said cause, began his charge to the jury, the said judge, in the jury room of the courthouse wherein the trial was proceeding, privately conversed with L. Z. Rosser and Reuben R. Arnold, two of the counsel of this defendant, and in said conversation referred to the probable danger of violence that this defendant would be in if he was present when the verdict was rendered in the cause, if said verdict should be one of acquittal, and after said judge thus expressed himself, he, the said judge, requested said counsel to agree that this defendant need not be present at the time the verdict was rendered and the said jury polled.

Under these circumstances the said counsel did agree with the said judge that this defendant should not be present at the rendition of said verdict. In the same conversation the said judge expressed the opinion also, to said counsel, that even the counsel of this defendant might be in danger of violence at the reception of said verdict.

Under these circumstances defendant's counsel, said Rosser and said Arnold, did agree with the said judge that this defendant should not be present at the rendition of the verdict. This defendant was not present at said conversation and knew nothing about the same or of any agreement made, as above stated, until after the verdict was received and the jury discharged, and until after sentence of death was pronounced upon him.

Defense Lawyers Absent.

Pursuant to the conversation above stated, neither the said Rosser nor the said Arnold nor Herbert J. Haas, who were the sole counsel of this defendant in said cause, were present when the said verdict was received and said jury discharged; nor was this defendant present when said verdict was rendered and the said jury discharged. Defendant says he did not give to said counsel, the said Rosser and the said Arnold, nor to anyone else any authority to waive or renounce the right of this defendant to be present at the reception of said verdict, or to agree that this defendant should not be present there at; and the relation of attorney and client did not give them such authority, though said counsel acted in the most perfect good faith and in the interest of the personal safety of this defendant. Neither the said conversation, nor the purport thereof was communicated to said Haas, nor did said Haas know thereof until after sentence was pronounced on defendant.

Defendant did not give to said Rosser, nor to said Arnold, nor to said Haas any authority to themselves be absent when said verdict was received, nor did he agree that they or either of them might be so absent.

6th Edition, PAGE 1, COLUMN 1

7th Edition, PAGE 1, COLUMN 1

8th Edition, PAGE 1, COLUMN 4

9th Edition, PAGE 1, COLUMN 8

10th Edition, PAGE 1, COLUMN 8

WAY PAVED TO HIGHEST U. S. COURT

'Prisoner's Constitutional Rights

Violated by Absence as Verdict Received,' Says Defense.

A motion to set aside the verdict in the case of Leo M. Frank on the ground that the Constitution of the United States was violated in its rendition in the absence of the defendant was the sensation sprung Thursday in the court of Judge Hill.

The motion was filed and read by John Tye, of the law firm of Tye, Peeples & Jordan. It preceded the filing of the extraordinary motion for a new trial which was expected to be the only formality of the day. The extraordinary motion for a new trial was submitted by Reuben R. Arnold, who said it later would be amended by the report of Detective W. J. Burns, who has yet to complete his investigation.

Judge Hill issued a rule nisi on each motion, and each was made returnable next Wednesday. A stay of execution was issued, and the hanging of Frank, set for Friday, thus was postponed until the motions are ruled upon.

Verdict Attack a Surprise.

The filing of the motion to set aside the verdict on constitutional grounds was a complete surprise, coming at this stage of the case.

The entrance of the well-known legal firm of Tye, Peeples & Jordan into active work on behalf of the defense was equally a cause for remark.

The motion to set aside the verdict was explained by the fact that the law insists that a defendant may not waive his presence in court at the rendition of the verdict, nor may his lawyers for him. Attorneys Rosser and Arnold, fearing violence in the event that Frank was brought into court and was acquitted, agreed, on the suggestion of Judge Roan, to waive his presence, and did not themselves appear in court when the verdict was returned.

This, according to the interpretation of the law made in the motion to set aside the verdict, they had no right to do, and Frank was deprived of his legal right of counsel to the time of the returning of the verdict, and was deprived of his right to be in court when the jury rendered the verdict.

Why Other Firm Entered.

Attorneys Rosser and Arnold, having waived the presence of their client, could not consistently have filed the motion to set aside the verdict on the ground of his absence, it was explained, this accounting for the entrance of the other legal firm into the case.

The motion, if denied by Judge Hill, lays the ground for an appeal to the Supreme Court of Georgia, and from there to the Supreme Court of the United States, inasmuch as it is represented that the circumstances of the trial were in contravention of the constitutions of both Georgia and the United States.

A rule nisi being issued on both motions and made returnable next Wednesday, Solicitor Dorsey will be called upon to make answer to both, if he so desires. This probably will delay actual arguments for a period of several weeks, at least, on the motion to set aside the verdict.

It has been reported that Solicitor Dorsey would make no counter showing on the extraordinary motion for a new trial. In this case arguments may commence at once on the extraordinary motion when the hearing begins next Wednesday.

That the statement of Dr. H. F. Harris that the hair found on the lathe on the second floor of the pencil factory was not the hair of Mary

Continued on Page 4, Column 1.

6th Edition, PAGE 4, COLUMN 1

7th Edition, PAGE 4, COLUMN 1

8th Edition, PAGE 4, COLUMN 1

9th Edition, PAGE 4, COLUMN 1

10th Edition, PAGE 4, COLUMN 1

NEW FRANK PLEA ASKS VERDICT BE SET ASIDE

Execution Stayed; April 22 Fixed as Date of Hearing

CONSTITUTIONAL RIGHTS OF ACCUSED DECLARED TO HAVE BEEN IGNORED

Continued From Page 1.

Phagan is to form an important part of the extraordinary motion for a new trial was indicated by the submission to Dr. Harris of a long list of written questions at the hearing Thursday.

The questions had to do with every detail of his microscopic examination of the strands of hair found on the lathe and the comparison with strands taken from the head of the murdered girl.

Detective John Black and A. T. Stephens, assistant to the Solicitor, were asked for affidavits relating to the finding of the hair and its submission to Dr. Harris for examination. Detective Black signed his affidavit in the courtroom.

W. M. Smith, lawyer for the negro Jim Conley, also was asked for an affidavit. He is reported to have been present when Dr. Harris told Solicitor Dorsey that the hair found on the second floor of the pencil factory was not that of Mary Phagan.

Smith Hits Defense.

The Solicitor is quoted as telling Dr. Harris to "forget it." Smith said Thursday that he did not hear this reported conversation.

A subpoena will be asked by the defense for Mary Rich, the negro woman who swore in an affidavit that she saw Jim Conley coming from the rear of the pencil factory at 2:15 o'clock the afternoon of the murder, and that he returned the way he came a statement contradicting Conley, who said he left the factory by the front door at 1:30 o'clock that afternoon, and did not return until Monday morning. Since making the affidavit, the Rich woman is rumored to have made a different affidavit for the Solicitor or his agents, which wholly or in part repudiates her first statement. Attorneys for Frank said that they wished her in court to find out exactly what transpired on the afternoon of the slaying.

Here is the petition questioning the constitutionality of the verdict:

Move to Set Aside Verdict.

Now comes Leo M. Frank, the defendant in the above stated cause, against whom in said cause a verdict of guilty of murder was received by the court on August 25, 1913, and moves the court to set aside said verdict for the following reasons:

Because at the time that said verdict was received and the jury trying the case was discharged, this defendant was in the custody of the law and incarcerated in the common jail of said county. He was not present when said verdict was received, and the said jury was discharged, as he had the right in law to be, and as the law required that he should be. He did not waive said right, nor did he authorize anyone to waive for him, nor consent that he should not be present. He did not even know that said verdict had been rendered and said jury discharged until after the reception of the verdict and discharge of the jury, and until after sentence of death had been pronounced upon him.

Because while in point of fact the statements above made are true, yet the presence of this defendant at the reception of said verdict was a legal right of defendant and a requirement of law which could not be waived even by this defendant himself, the charge upon which this defendant was tried being a charge of murder, subjecting him to possible deprivation of his life, and which waiver would be not only a renunciation of a right which the law had established in his favor, but would be a renunciation affecting the public interest.

Threats of Violence.

Because on the day said verdict was rendered, and shortly before Hon. L. S. Roan, the judge who presided upon the trial of said cause, began his charge to the jury, the said judge, in the jury room of the courthouse wherein the trial was proceeding, privately conversed with L. Z. Rosser and Reuben R. Arnold, two of the counsel of this defendant, and in said conversation referred to the probable danger of violence that this defendant would be in if he was present when the verdict was rendered in the cause, if said verdict should be one of acquittal, and after said judge thus expressed himself, he, the said judge, requested said counsel to agree that this defendant need not be present at the time the verdict was rendered and the said jury polled.

Under these circumstances the said counsel did agree with the said judge that this defendant should not be present at the rendition of said verdict. In the same conversation the said judge expressed the opinion also, to said counsel, that even the counsel of this defendant might be in danger of violence at the reception of said verdict.

Under these circumstances defendant's counsel, said Rosser and said Arnold, did agree with the said judge that this defendant should not be present at the rendition of the verdict. This defendant was not present at said conversation and knew nothing about the same or of any agreement made, as above stated, until after the verdict was received and the jury discharged, and until after sentence of death was pronounced upon him.

Defense Lawyers Absent.

Pursuant to the conversation above stated, neither the said Rosser nor the said Arnold nor Herbert J. Haas, who were the sole counsel of this defendant in said cause, were present when the said verdict was received and said jury discharged; nor was this defendant present when said verdict was rendered and the said jury discharged. Defendant says he did not give to said counsel, the said Rosser and the said Arnold, nor to anyone else any authority to waive or renounce the right of this defendant to be present at the reception of said verdict, or to agree that this defendant should not be present there at; and the relation of attorney and client did not give them such authority, though said counsel acted in the most perfect good faith and in the interest of the personal safety of this defendant. Neither the said conversation, nor the purport thereof was communicated to said Haas, nor did said Haas know thereof until after sentence was pronounced on defendant.

Defendant did not give to said Rosser, nor to said Arnold, nor to said Haas any authority to themselves be absent when said verdict was received, nor did he agree that they or either of them might be so absent.

The said agreement, made by the said Rosser and the said Arnold, even if otherwise it could be of any binding force and effect, upon this defendant, was of no legal force and effect, so far as the presence of this defendant at the reception of said verdict was concerned, because the same was made under and because of the said statement, made as above stated to the said Rosser and the said Arnold by the judge who was presiding upon and at said trial, that there was probable danger of violence to this defendant should he be present when said verdict was rendered, should the verdict be one of acquittal, and because they, the said Rosser and the said Arnold, were induced to make said agreement because of said statement so made to them, believing the same to be true and believing that for this defendant to be so present, if the verdict should be one of acquittal, might subject this defendant to serious bodily harm and even to the loss of his life.

Defendant says upon and because of each of the grounds above stated and also upon and because of all of them, the said verdict was and is of no legal force and effect and the same is void.

(1) That the reception of said verdict, in the involuntary absence of this defendant, while he was so, as aforesaid, in the custody of the law and incarcerated in jail, was contrary to law and was in violation of the legal rights of this defendant.

(2) Defendant says that the reception of said verdict in the involuntary absence of this defendant while he was so confined in jail, was in violation of and contrary to the provisions of article 1, section 2, paragraph 3, of the Constitution of the State of Georgia, providing that "no person shall be deprived of life, liberty or property, except by due process of law," the said reception of said verdict during the involuntary absence of this defendant and while he was confined in jail depriving the proceedings against him of the character of a trial to which he was entitled under the law, and depriving him of the hearing and the opportunity to be heard in his own defense to which he was entitled under the law and to which he was entitled under the said provision of the Constitution of the State of Georgia.

3. Defendant says that the said reception of said verdict in the involuntary absence of this defendant while he was so confined in jail was in violation of and contrary to the provisions of Article 6, Section 18, paragraph 1 of the Constitution of the State of Georgia, that "the right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolated," because the right of trial by jury under the laws of the State of Georgia extended to and covered with its protection the right of this defendant to be present in person at the reception of the verdict against him in said cause, and because the reception of said verdict during the involuntary absence of this defendant and while he was so confined in jail was in violation of the right of trial by jury to which this defendant was entitled, said right including the right of this defendant to be present at the reception of the said verdict, and to be then and there heard in his own defense.

Demands Constitutional Rights.

4. Defendant says that the said reception of said verdict in the involuntary absence of this defendant, while he was so confined in jail, tended to deprive him of his life and liberty without due process of law, and that the same denied to him the equal protection of the laws, contrary to and in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States, to-wit: "Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," the said reception of said verdict during the involuntary absence of this defendant and while he was confined in jail depriving the proceedings against him of the character of a trial to which he was entitled under the law, and depriving him of the hearing and the opportunity to be heard in his own defense, to which he was entitled under the law and to which he was entitled under the said provision of the Constitution of the United States, and this defendant claims the protection of said provision.

Defendant says that the said reception of said verdict in the involuntary absence of this defendant and while he was so incarcerated in jail, and in the said absence of this defendant, counsel, under the circumstances as above stated, was contrary to and in violation of the provisions of article 1, section 1, paragraph 5, of the Constitution of the State of Georgia, to-wit, "Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel," because this defendant, under and because of the said circumstances as above set forth, was deprived of the presence of his counsel and of the benefit of counsel at the reception of said verdict, to which he was in law and under said constitutional provision entitled; and for and because of the same said conditions and circumstances the reception of said verdict was in violation of the provisions of the fourteenth amendment of the Constitution of the United States: "nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," in that this defendant was under the said conditions and circumstances deprived of the right to the benefit of counsel and of the presence of his counsel at the reception of said verdict, and defendant claims the protection of the said amendment.

Because the said judge, Hon. L. S. Roan, upon considering the motion for a new trial, made by this defendant, after the reception of said verdict, as above stated, rendered his judgment denying said motion, and in rendering said judgment stated that the jury had found the defendant guilty; that he, the said judge, had thought about this cause more than any other he had ever tried; 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 that Frank was guilty or innocent, but that he did not have to be convinced; that the jury was convinced; that there was no room to doubt that; that he felt it to be the duty to order that the motion for a new trial be overruled.

Not Given Benefit of Doubt.

This defendant says that under the provisions of the fourteenth amendment to the Constitution of the United States, no State could deprive this defendant of his life or liberty without due process of law, nor deny him the equal protection of the laws, and that he has not been afforded due process of law, and that he has been denied the equal protection of the laws, in that the said judge, in so as aforesaid, denying to him a new trial in said cause, did not, as shown by his said statement, give to this defendant the judicial determination of said motion to which defendant was entitled by law; that said judge being constituted by law as one of the triers did not afford to this defendant the protection which the law guarantees the law being that defendant is entitled to the benefit of every reasonable doubt, the presumption of innocence being in defendant's favor, and the trial judge, though entertaining the doubt which he felt as to this defendant's guilt, and nevertheless denying to him a new trial, by said action denied to this defendant the fair and lawful trial he is entitled to, and thereby this defendant has been denied the due process of law.

Because that fair and impartial trial was not accorded defendant which is guaranteed to him by the Constitution of the United States, as contained in the fourteenth amendment to said Constitution, to wit: "Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Reviews Crowds' Behavior.

In support of this ground movant alleges that the courtroom wherein this trial was held had a number of windows on the Pryor street side looking out on a public street of Atlanta, and furnishing easy access to any noises that might occur upon the street; that there is an open alleyway running from Pryor street on the side of the courthouse, and there are windows looking out from the courtroom into this alley, and that crowds collected therein, and any noises in this alley could be heard in the courtroom; that these crowds were boisterous, and that on the last day of the trial after the case had been submitted to the jury, a large and boisterous crowd of several hundred people were standing in the street in front of the courthouse, and as the Solicitor General came out greeted him with loud and boisterous applause, taking him upon their shoulders and carrying him across the street into a building wherein his office was located; that this crowd did not wholly disperse during the interval between the giving of the case to the jury and the time when the jury reached its verdict, but during the whole of such time a large crowd was gathered at the junction of Pryor and Hunter streets; that several times during the trial the crowd in the courtroom, and outside of the courtroom, which was audible both to the court and jury, would applaud when the State scored a point; a large crowd of people standing on the outside cheering, shouting and hurrahing, and the crowd within the courtroom signifying their feelings by applause and other demonstrations; and on the trial, and in the presence of the jury, the trial judge in open court conferred with the Chief of Police of Atlanta, and the colonel of the Fifth Georgia Regiment, stationed in Atlanta, which had the natural effect of intimidating the jury, and so influencing them as to make impossible a fair and impartial consideration of defendant's case; indeed, such demonstrations finally actuated the court in making the request of defendant's counsel, Messrs. Rosser and Arnold, as detailed in paragraph three of this motion, to have defendant and the counsel themselves to be absent at the time the verdict was received in open court, because the Judge apprehended violence to defendant and his counsel; and the apprehension of such violence naturally saturated the minds of the jury so as to deprive this defendant of a fair and impartial consideration of his case, which the Constitution of the United States in the fourteenth amendment hereinbefore referred to, entitled him to.

On Saturday, August 23, 1913, previous to the rendition of the verdict or August 25, the entire public press of Atlanta appealed to the trial court to adjourn court from Saturday to Monday, owing to the great public excitement, and the court adjourned from Saturday, 12 o'clock m., to Monday morning, because it felt it unwise to continue the case that day, owing to the great public excitement, and on Monday morning the public excitement had not subsided, and was as intense as it was on Saturday previous.

And when it was announced that the jury had reached a verdict, the trial judge went to the courtroom and found it crowded with spectators, and, fearing violence in the courtroom, the trial judge cleared it of spectators, and the jury was brought in for the purpose of delivering their verdict.

When the verdict of guilty was announced, a signal was given to the crowd on the outside to that effect. The large crowd of people standing on the outside cheered and shouted as the jury was beginning to be polled, and before more than one juror had been polled the noise was so loud and confusion so great that the further polling of the jury had to be stopped so as to restore order, and so great was the noise and cheering and confusion from without that it was difficult for the court to hear the responses of the jurors as they were being polled, though the court was only ten feet distant from the jury.

Ask Verdict Be Annulled.

All of this occurred during the involuntary absence of this defendant, he being at the time in the custody of the law and incarcerated in Fulton County jail, his absence from the courtroom having been requested by the court on account of fear of violence to said defendant, as hereinbefore recited.

Wherefore the premises considered, the defendant prays that the said verdict be set aside and go for naught. Defendant prays that a rule be granted calling upon the State of Georgia, by its Solicitor General, to show cause, at a time to be fixed by the court, why the prayers of this petition should not be granted, and that in the meantime and until the further order of this court the execution of the sentence of death which has been pronounced against this defendant be stayed.

LEONARD HAAS,

TYE, PEEPLES & JORDAN,

H. A. ALEXANDER,

H. J. HAAS,

Attorneys for Leo M. Frank.

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NEW PLEA OPENS WAY TO U. S. HIGH COURT

One of the most unexpected developments in the Frank case came Thursday in the motion to set aside the verdict of the trial jury on the constitutional grounds that the defendant was deprived of his legal rights in being absent from the court room when the verdict was returned. The motion can be used as the basis of an appeal to the Supreme Court of the United States, if such procedure is necessary.

The motion was filed by John Tye, of the firm of Tye, Peeples & Jordan. In substance it said:

That Frank was not present when the verdict was rendered. That he had not waived his presence nor authorized his counsel to waive his presence.

That, had he wished to do so, he was not empowered to waive his presence nor were his attorneys.

That he clearly was deprived of his rights as guaranteed to him by the constitution of the State of Georgia and of the United States.

That the verdict in the trial should, for this obvious violation of the provisions of the highest law of the State and of the land, be set aside and declared illegal.