Monday, 4th August 1913 Boiled Cabbage Brings Hypothetical Question Stage in Frank’s Trial

Atlanta Georgian
August 4th, 1913

By JAMS B. NEVIN.

When a prospective juryman is on his voir dire in a given criminal case, he is asked if his mind is perfectly impartial between the State and the accused.

If he answers yes, he is competent to try the case, so far as that is concerned. If he answers no, he is rejected.

How many people in Atlanta and Georgia, having heard part of the testimony in the Frank case, still feel themselves to be perfectly impartial between the State and the accused?

How many people, having heard part of the evidence, still have refrained from expressing an opinion as to the guilt or innocence of Frank?

Not many, I take it—and yet, that jury is supposed to be perfectly poised and as yet impartial between the State and the accused, notwithstanding the State's evidence thus far delivered, and the presumption of innocence legally established in behalf of the defendant.

I venture the opinion that nothing developing in the Frank trial last week so profoundly weighed upon the minds of the people over Sunday as the question of the digestibility of boiled cabbage—nice, greasy, palatable, if often shunned, boiled cabbage!

It is rather curious that of all the mass of matter brought out last week this point should have furnished the greatest amount of food for thought—food as difficult and as varied in its aspects of mental indigestibility as boiled cabbage is in its physical aspect!

Everybody Has His Opinion.

Everybody has his own private opinion as to the manner and methods whereby his, at least, stomach proceeds to the disposing and assimilating of this not too aristocratic article of common, everyday consumption.

How many people in Atlanta Sunday forsook their usual Sabbath day more or less elaborate program of diet in favor of plebeian program of boiled cabbage—just to see what would happen, anyway?

"Is your mind perfectly impartial between the State and the accused?"

Perhaps as an experiment with boiled cabbage may help you in arriving at a conclusion!

Remember, in judging Frank from the State's standpoint, there is nothing so vitally important as the time element.

If Mary Phagan were killed between 12:05 and the time Frank is admitted to have left his office—which narrows the limit sharply and definitely—then the State's contention that Frank committed the deed may or may not be true.

If she actually was killed after Frank left his office, of course the case against Frank falls to pieces entirely.

Miss Monteen Stover swears that Frank was not, to the best of her knowledge and belief, in his office from 12:05 to 12:10—and there are five minutes, if the girl's testimony is conclusive, in which Mary Phagan's death might have been effected.

Defense to Dispute Claim.

The defense, to be sure, has sought to show, and will seek to show even more definitely yet, that, while Miss Stover may not have seen Frank in his private office, which is detached from the main office, he still might have been there, because of the arrangement of the two rooms and the furniture therein.

But if the jury accept Miss Stover's testimony as conclusive, and agrees that Frank was NOT in his office at the time stated, and if spite of the fact that Frank has stated, and presumably will state again, that he WAS in his office at that time, then Franks full opportunity to have slain the girl will have been established.

In addition to this established fact—if it be established in the minds of the jury—will be the further testimony of Dr. Roy Harris to the effect that Mary must have been dead at least not later than 12:30, and maybe earlier, as disclosed to Dr. Harris' satisfaction by the contents of her stomach, examined carefully after her death.

It looks as if the very heart and soul of the State's case against Frank, in so far as its entirely theoretical and circumstantial side is concerned, revolves very much about the question of how long boiled cabbage may have been in process of digestion in Mary Phagan's stomach on the day she was killed.

Trivial Thing Controls.

It is rather a strange thing that in so many cases depending alone upon circumstantial evidence to sustain them, unexpected and seemingly inconsequential things should eventually control.

When the Frank trial began, if there was any one thing entirely remote from the minds and opinions of the people—the judge and the jurymen included—it was, I suspect, boiled cabbage!

The lawyers for the State, of course, knew what Dr. Harris was going to testify—but beyond them, nobody else knew.

When, as the case developed in its preliminary and before trial stages, the newspapers were digging daily in this and that direction for new lines of thought, for new circumstances and suggestions calculated to throw light on the great mystery of Mary Phagan's untimely and most distressing death, when constantly it was being hinted that either the State or the defense had "something big and sensational up its sleeves, yet to come," who thought of boiled cabbage?

I confess unblushingly and with no reservations or evasions of mind in me whatever that I never did—not once!

And neither did you, reader!

And yet, there has been nothing developed by the State, in the circumstantial evidence, not including Conley, thus far one-half so sensational as its point about boiled cabbage—nothing that the defense so surely and so completely must break down and annihilate!

Clash Over Boiled Cabbage.

Upon the yet mooted points of the digestibility of boiled cabbage, in the average stomach, in Mary Phagan's stomach, in the weak stomach, in the strong stomach, in the thus equipped stomach and the otherwise equipped stomach—plainly one may anticipate a long, bitter, and badly befuddling battle between experts pro and con as to boiled cabbage inside the human physical make-up.

I suspect the Frank case now is getting to that stage wherein the hypothetical question will figure seriously and menacingly.

Already, of course, hypothetical questions have been asked, on both sides, but it is doubtful whether the case really has quite progressed to that point wherein the real hypothetical question should be expected to make its appearance. But it is very near.

In the famous trial of Harry Thaw, when there was no question whatever of who killed Stanford White, the hypothetical questions asked of the experts often ran into the thousands of words. Indeed, one question was asked, if I remember correctly, that contained over five thousand words.

If the lawyers in the Frank case get to handing those sort of queries around—and both sides likely will plunge heavily into the hypothetical question pool, the water being fine or not, as they individually may view it—the Frank case likely will get so very complex that ordinary folks will find it extremely hard to follow its movements.

Jury to Bear Burden.

The jury, being on its oath fair and impartial, will undertake, of course, to get its mind exactly right on the questions of boiled cabbage.

A human life, an erstwhile happy home, a wife's all and everything, a mother's love and confidence, a man's dearest honor, and the sympathy and loyalty of hundreds of devoted friends—these all are depending, in large measure, upon what the jury in the Frank case finally will conclude in respect of the digestibility of boiled cabbage!

If it were not such a serious matter—such a very, very serious matter—one might almost be tempted to smile grimly to himself, that so much should depend upon seemingly so commonplace a thing as boiled cabbage.

It would be a frightful thing to send a man to the gallows upon an incorrectly diagnosed condition of the alimentary canal, dependent entirely upon boiled cabbage, and yet it would be equally as frightful and unfortunate if justice should gravely miscarry and responsibility for little Mary Phagan's death fall to be fixed righteously, because the jury missed the vital controlling point in respect of boiled cabbage.

It is upon trifles light as air—not that boiled cabbage ever sat that lightly on human stomach—that grave issues often turn; and thus not infrequently is the "native hue of resolution sicklled o'er with the pale cast of thought," as Hamlet says.

Has Jury Tried Experiment?

Was the jury progressing satisfactorily toward the acquittal of Frank—or unsatisfactorily, as the case may be—when it ran afoul of boiled cabbage, that to give it serious pause?

And would it be right or wrong, proper or improper, now to to feed the jury one meal of boiled cabbage, thus to let it see by personal experience what becomes of that article of diet, once it is introduced into the human stomach?

Would that be dangerous to the State, in that it might breed a variety of opinion in the minds of the jury sure to produce, at least, a mistrial, or an acquittal—or would it so shatter all doubt in the jury's mind as to produce conviction?

Has the Frank jury inadvertently been fed some boiled cabbage already, and did every juryman partake thereof—and if so, will that, in either event, be grounds for a new trial?

Far be it from me even to guess so hard is the battle for and against Leo Frank being fought.

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