Sunday, 13th July 1913 Indictment of Conley Puzzle for Grand Jury

The Atlanta Georgian

Sunday, July 13, 1913

*Editor's Note: Some text is blurred in the original document, and illegible text is marked by "[…]". The text box insert is transcribed at the bottom of this post.

Old Police Reporter Declares True Bill Against Negro Might Alter Entire Frank Prosecution.

RULES OF EVIDENCE CITED

Mincey Affidavit May Have Important Bearing on Defense of Pencil Factory Manager.

By An Old Police Reporter.

Persistent rumors have been abroad of late that the present Grand Jury may indict James Conley for the murder of Mary Phagan.

This is interesting, for if the Grand Jury should indict Conley it would set up a situation immediately possible of most decided results.

Frank already has been indicted, for reasons presumably sufficient to the Grand Jury then acting upon his case.

Would the present Grand Jury be justified in proceeding to the indictment of Conley, notwithstanding the former Frank indictment?

Unquestionably it would, if the circumstances of the case warranted it—indeed, there are many who will think it should proceed to that, if in that way justice seemed more likely to be established.

In getting a point of view in this matter, I have found it necessary to go back to the beginning, and to ask myself this:

Would the Grand Jury, in possession of all the present facts and circumstances pointing toward either Conley or Frank as the guilty man, have indicted Frank or Conley, as a primary proposition?

Much Room for Speculation.

Readers who look upon this strange Phagan case largely as an abstract proposition will find much to speculate upon if they will shape their theorizing in that direction—retrospectively, as I have done.

Last Sunday I set forth eighteen circumstances tending, in my mind, to set forth the defense's likely attitude in suspicion of Conley.

He is admittedly an accessory after the fact of the murder. Shall he be held to be a principal to it?

That's a pretty puzzle—and it is not surprising that the Grand Jury is asking itself seriously which way it shall be answered.

Undoubtedly suspicion points toward Conley from many directions.

Suspicion, however, also points toward Frank.

Last Sunday I listed the suspicious circumstances in the case of Conley, and commented upon them, from the viewpoint of the defense.

What, then, are the suspicious circumstances against Frank?

They are three in number.

(1) Frank was in the factory at a time when the crime might have been committed.

(2) Frank let Newt Lee off for the afternoon of Saturday, April 26, which was contrary to his usual custom.

(3) Frank telephoned to the factory late Saturday afternoon, to inquire of Lee whether things were all right there, which also was contrary to his usual custom.

Are there any other really suspicious circumstances against Frank?

If so, a diligent search of the newspaper files fails to reveal them.

I do not know what, if anything, by way of circumstantial evidence against Frank may be held in reserve. Of Conley's statement I write further along.

The first suspicious circumstance against Frank seems to be admitted.

Day Was Legal Holiday.

The second is explained—though this explanation is not necessarily conclusive—that Saturday, April 26, was a legal holiday, and that all employees had been excused. That Lee should have been excused then was not, therefore, extraordinary.

The third suspicious circumstance the defense accounts for by the fact that just before Frank left for home Saturday afternoon a former employee of the factory, discharged in unpleasant circumstances, was in the factory, ostensibly to look up a pair of shoes, and that the Frank telephone message was sent to ascertain if he had departed, and things remained all right.

Street rumor had it for a time that Frank, immediately upon hearing of the killing of Mary Phagan, employed a lawyer and began to frame a defense, also that he employed a Pinkerton man to direct suspiciou [sic] away from himself.

The undisputed facts, as revealed in a study of the newspaper files, however, show that Frank had no lawyer until Monday afternoon, after he had been "detained" at police headquarters, and that then his lawyer was sent to him rather than that he sent for his lawyer.

Frank was apprised of the killing of Mary Phagan early Sunday morning. He accompanied the police to the pencil factory at once, answering all questions propounded readily and unhesitatingly.

From there he went to the undertaker, where he promptly identified Mary Phagan as a girl he had paid off about noon the day before.

After this, he remained with the police some time, then went home and spent a […] of Sunday afternoon with his people.

Monday morning he returned, as usual, to work in the pencil factory, whence he was summoned later to come to police headquarters.

When a newspaper extra was […] the streets Monday, saying that Leo Frank was "satisfied" at police headquarters, then, AND NOT UNTIL THEN, did Frank have a lawyer to look after him […] was SENT to him […] without Frank's previous […].

Detective Sought Slaver.

It is […] murderer of Mary Phagan, whoever it might be!"

Beyond the suspicion, therefore, that Frank MIGHT have killed Mary Phagan because he was in the factory at a time when the murder MIGHT have been consummated, and the fact of the Conley affidavits against him, what else remains?

It gets back where I left it last Sunday, to this:

Both the prosecution and the defence likely will have to rely upon Conley largely in trying the indictment againt [sic] Frank.

If Conley's statement is made to "stand up" in court, it will be very damaging to Frank.

If it falls down, it will clear Frank, no doubt!

The present Grand Jury, however, in seeking to determine whether it ought to indict Conley NOW, will not consider, in all probability, the effect such an indictment might have upon the Frank case.

Of course, if the Mincey statement against Conley can be sustained by competent corroborative evidence—and it now is claimed that there are creditable witnesses ready to swear that Conley DID say the things to Mincey which the Mincey affidavit charges him with having said—the case against Conley immediately gets partly out of the circumstantial evidence catalogue, and Conley will stand face to face with the peril of DIRECT evidence.

If it can be shown to the Grand Jury that Conley did say to Mincey, in the manner Mincey says he said it, on the afternoon of the day Mary Phagan was killed, "I have killed one girl to-day, and do not wish to kill another," and that he was a half-drunken stupor when he said it, that, in connection with the other evidence against Conley, unquestionably would seem to make it the present Grand Jury's positive DUTY to indict Conley, without further ado!

And particularly is this true if it can be shown that Mary Phagan's pay envelope was found near where Conley was sitting on the day the girl was killed.

Grand Jury Wants Justice.

The Grand Jury will be guided SOLELY, I think, however, by what seems the surer way to get at JUSTICE and the truth of Mary Phagan's death.

Since this case, whether it turns finally against Frank or Conley, will be controlled in large measure by the law of circumstantial evidence, and since there is much confusion in the public mind as to just what circumstantial evidence is, I looked up some law in the Georgia Supreme Court Reports Saturday, and I am sure it will help many of my readers in speculating upon the Phagan case to contemplate that law as I have done.

Section 984 of the Penal Code lays down this law:

"To warrant conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude EVERY OTHER REASONABLE HYPOTHESIS save that of the GUILT of the accused."

In other words, the circumstantial evidence relied upon must prove the guilt of the accused to the EXCLUSION OF ANY OTHER CONCLUSION that might be reasonably reached from that evidence!

Verdicts of guilty under circumstantial evidence are arrived at, if arrived at legally, through a stern process of elimination.

The law is very jealous of its honor and complete integrity!

It will be observed, therefore, that there is a very great and grave difference between CIRCUMSTANTIAL EVIDENCE and SUSPICIOUS CIRCUMSTANCES.

In this connection I find that no less eminent an authority than that wonderful jurist, Chief Justice Hiram Warner, grandfather of the present Mr. Justice Hiram Warner Hill. In the Fiftieth Georgia, Earp vs. the State, said:

"The law does not allow anyone to be convicted of ANY offense merely on a SUSPICION of his guilt!"

Simmons' Words Fit Case.

Further along I found, in the case of Williams vs. the State, 112 Georgia, some words from the pen of Chief Justice Simmons that fit strangely into the Phagan case in many ways.

Citing section 248 of the Criminal Code, heretofore laid down in this article, Chief Justice Simmons said:

"Under this rule, if the State relies upon circumstantial evidence, that evidence must be so strong as to exclude every other hypothesis SAVE that of guilt of the accused. IT MUST BE INCONSISTENT WITH HIS INNOCENCE.

"This court has ruled on several occasions that in cases involving life or liberty this rule MUST NOT BE RELAXED.

"When a heinous crime has been committed in a community, and the people are greatly shocked thereby, it is natural for them to catch at any little circumstance to throw suspicion upon SOME person and to conclude from this or that circumstance that he is the guilty party.

"The bearer of the crime and their desire as good citizens to see the guilty party punished and the law vindicated, frequently leads them to PREMATURE JUDGMENT, which oftentimes follows them into the jury box, where as jurymen they not infrequently find persons guilty on BARE SUSPICION alone!"

Oh, rare Justice Simmons, whose clear-seeing eyes now have fallen on eternal sleep, did ever any man before or since his time make nobler or fairer plea for the majesty and the sanctity of impartial and just LAW than the plea contained in the foregoing prophetic words?

Excusing, ever extenuating, the proneness of the average citizen, shocked by horrible crime, to forget himself and form premature and ill-conceived opinions and judgments upon persons accused, he points them to the LAW, evolved by the Anglo-Saxon race of a thousand years of progress and civilization, as the sure arbiter of truth in the end.

Only Law Insures Decency.

How foolish it makes one feel to think of his prattlings and gabblings of the "law's delays and technicalities," when it so surely is a fact that through the orderly and dignified application of the law ALONE is decency and the right most certainly assured to the law-abiding and the just.

It has been eleven weeks since Mary Phagan was found dead in the basement of the National Pencil factory.

Much has been written and unwritten since then.

When Frank was indicted it was not even whispered that James Conley might have had a hand in the great murder mystery.

It was not known then that he even had been in the pencil factory on the day of the murder.

Suppose everything that is NOW known, both of Conley and Frank, had been laid before the Grand Jury that indicted Frank, would that Grand Jury still have indicted Frank in preference to Conley?

That is the puzzle the present Grand Jury has to consider—and it is the problem it is reported to be considering.

There stands the indictment of Leo Frank.

Is Frank guilty, as charged in that indictment?

I do not know. I can not possibly know.

As a rule, I have sought merely to set up possible situations, as the facts in the case against Frank seemed to develop large or small.

I have endeavored to avoid conclusions. The reader may form them or not, as he pleases.

Is James Conley, rather than Leo Frank, the real murderer of Mary Phagan? I do not know. I can not know.

Should Conley Be Indicted?

As between these two men, toward which does the finger of suspicion more surely SEEM to point?

If the Grand Jury has as much against Conley now as it had against Frank when Frank was indicted, should it indict Conley?

If it has more against Conley now than it did against Frank when it indicted Frank, should it now indict Conley?

If its first judgment against Frank seems now to have been premature, should it take counsel with itself and consider the wise words of Chief Justice Simmons set forth hereinbefore?

The case against Conley has developed slowly—from the first discovery of his untruthfulness as to whether he could write to the amazing Mincey disclosures of the past week.

Has it developed to the point where now the case against Conley is stronger than the case against Frank, or even as strong?

If so, what will the Grand Jury do with James Conley?

The Grand Jury alone is to answer that!

A CHIEF JUSTICE'S DECISION ON CIRCUMSTANTIAL EVIDENCE

The following is a decision by Chief Justice Simmons, in the 113 Georgia. He says:

"If the State relies upon circumstantial evidence, that evidence must be so strong as to exclude every other hypothesis save that of the guilt of the accused. IT MUST BE INCONSISTENT WITH HIS INNOCENCE. This rule must NOT be relaxed.

"When a heinous crime is committed in a community, and the people are greatly shocked thereby, it is natural for them to catch at any little circumstance to throw suspicion upon SOME person, and to conclude from this or that circumstance that he is the guilty party.

"The horror of the crime, and their desire as good citizens to see the guilty punished and the law vindicated, frequently leads them to PREMATURE JUDGMENT, which oftentimes follows them into the jury box, where as jurymen they not infrequently find persons guilty on BARE SUSPICION alone!"

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