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ould acts of immorality with women be heard, even on cross
examination, as evidence of bad character, and reputation, upon
Frank's trial for the murder of Mary Phagan.
Lasciviousness is not one of the character traits involved in a
case of murder and can not be heard in a murder trial, even
when the defendant has put his character in issue.
41. Because the Court permitted the witness W. D. WcWorth to
testify, at the request of the Solicitor General, over the
objection of the defendant made at the time the testimony was
offered, that the same was immaterial.
" Mr. Pierce is the head of the Pinkerton office here. I do
not know where he is; the last time I saw him was Monday evening,
I do not know where Mr. Whitfield is. (Mr. Whitfield was also
a Pinkerton man.) I saw him the last time Monday afternoon. I do
not know whether Pierce and Whitfield are in the City or not."
The Court admitted this testimony over the objection of the
defendant, made at the time the testimony was offered, for the
reasons stated and in so doing committed error. This was especi
ally prejudicial to the defendant. Pierce and Whitfield were part
of the Pinkerton force in the City of Atlanta, and the inference
of the solicitor was that he wished these whereabouts to be shown
upon the theory that the Pinkertons were employed by Frank for
the National Pencil Company and that a failure on the part of Frank
to produce them would be a presumption against him, as he stated
it, upon the well-known principle of law that if evidence is shown
to be in the possession of a party and not produced, it raises
a presumption against them.
42. Because the Court permitted W. D. W. Worth, at the instance of
the solicitor general to testify over the objections of the
defendant, made when the evidence was offered that the same
was irrelevant, immaterial and illegal.
" I reported it (the finding of the club and envelope) to the
police force about 17 hours afterwards after I reported the
matter to the police force about 4 hours afterwards. I told John Black about the
envelope and the club. I turned the envelope and club into the
possession of H. B. Pierce." 96.
The Court heard this testimony over the objection of the

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