Tuesday, 29th July 1913 Frequent Clashes Over Testimony Mark Second Day of Frank Trial

Atlanta Journal
July 29th, 1913

QUESTIONS DIRECTED AT NEGRO INDICATED AN EFFORT TO THROW SUSPICION UPON WATCHMAN

"We Might as Well Begin to Show the Negro a Criminal Now as Later," Declared Attorney Rosser, In Arguing for Admissability of His Questions—Negro Was Taken Over His Testimony Many Times in Effort to Break Him Down

INDICATIONS TUESDAY ARE THAT TRIAL WILL LAST MANY DAYS, PROBABLY AS LONG AS TWO WEEKS

Morning Session Enlivened by Clashes Between Attorneys, Every Point Is Bitterly Contested—Frank Keeps Serene and Untroubled Throughout Session—Full Story of Testimony Given by Witnesses During the Morning

After a luncheon recess of an hour and a half Tuesday the trial of Leo M. Frank was resumed at 2 p. m. with Police Sergeant L. S. Dobbs still on the witness stand. The morning session was given over to the continued examination of Newt Lee, the negro night watchman, and the direct and cross examination of Sergeant Dobbs.

There were frequent clashes between the attorneys for the defense and the solicitor during the morning. Every point was bitterly contested, and once the jury was sent from the room while the lawyers argued the fine points of the law. It was evident that the case was to be fought at every point.

The most significant feature of the morning session was an intimation by Attorneys Rosser and Arnold, counsel for Frank, that they might seek to connect the negro nigh watchman with the murder. It was during a colloquy between the lawyers for the defense and the state relative to the admissibility of the negro's testimony as to what was said to him by the police officers about the contents of the notes found beside Mary Phagan's body.

Solicitor Dorsey made the point that the notes had not yet been introduced as evidence and unless the defense was seeking to impeach the witness or to connect him with the crime it was not proper for him to questioned concerning the contents of the notes.

Then Attorney Rosser declared: "We've got to commence somewhere and at some time to show the negro is a criminal and we might as well begin here as anywhere else."

Attorney Arnold made the point that the negro's comment on the contents of the note immediately after they were read to him indicated a previous knowledge of them.

No further effort, however, was made to connect Lee with the murder. The negro was on the stand altogether just four hours and forty-five minutes. The tedious and detailed examination of his witness indicated that every point in the case would be hard fought by both sides. He was led back and forth over the same ground, it being the evident intention of the defense to discredit his statements relating to unusual agitation on the part of Frank on the day of the murder.

Sergeant Dobbs' testimony concerned the finding of the girl's body, and the two notes which were picked up near it. Also the condition of the body when found.

During Tuesday afternoon other officers will probably be introduced to give similar evidence, and it is believed the undertaker, who prepared the body for burial, will also be put on the stand.

Court officials believe how that the trial will run well into a second week and that James Conley, the negro sweeper, will be on the stand for two or three days. It is not known when the state will call Conley, but he will doubtless be the climax witness and all the energies of the defense will be directed toward breaking him down.

Frank followed the progress of his trial Tuesday with great interest and apparent satisfaction. He listened intently to everything said in the court room and frequently he conferred with his attorneys. He often smiled while conversing with his wife and mother who sat beside him.

About fifty spectators retained their seats in the court room throughout the recess, foregoing lunch and fresh air in order to insure for themselves good seats at the afternoon session. Mrs. Frank and her husband lunched together in an ante-room of the court. The jury returned form [sic] lunch and a short walk at 1:50 o'clock.

Court reconvened three minutes early, at 1:57 Sergeant Dobbs continued to the stand. He was asked a few questions in cross-examination by Attorney Rosser and then Solicitor Dorsey took up the re-direct examination. The solicitor brought out additional points about the finding of the body. He stressed the fact that the trimming of the girl's had never has been found so far as the sergeant knows. Sergeant Dobbs identified some blue ribbon as the same that was on Mary Phagan's hair when her body was found.

DOBBS' TESTIMONY.

The solicitor read a transcript of the testimony given by Sergeant Dobbs before the coroner's jury relating to the indications that Mary Phagan's body had been dragged.

The transcript was right, said the sergeant. The dragging seemed to have started at the corner of the elevator shaft. Using Mary Phagan's umbrella as a pointer, the solicitor had the sergeant trace the line of the dragging marks.

It showed that the body had been taken out of the elevator and pulled around the corner of the elevator shaft under the ladder. By this testimony the solicitor evidently expected to lay his plan for combatting the possible theory that the defense might advance that the body was taken down the ladder itself.

The solicitor asked the sergeant if it would be possible for a man to carry the body down the ladder. It was hard for man to go down by himself, said the sergeant, and no ordinary man could have carried the body down.

The solicitor then asked the sergeant about a photograph of the rear door of the basement. The photograph appeared in the same frame with the diagram. The photograph showed the hasp in place and the bar across the back of the door.

Sergeant Dobbs said that the bar was in that position when he saw the door, but that the hasp was pulled out and the lock was lying on a platform immediately at the right. The bar evidently did not interfere with the opening of the door, for the door slides and does not swing.

Sergeant Dobbs said that the hasp was not bent and evidently had been pulled straight out. He identified the lock and hasp themselves, the solicitor handing them to him.

The sergeant stated that the body was cold when he found it. He identified the low-quarter shoes. One of them, said he, was on one foot of the body and the other was found on the trash pile near the boiler.

The dead girl's hands were folded across her breast (beneath her body.) The body was rather stiff, bue [sic] he could work the fingers at the joints.

Leo M. Frank, the accused, was reported to have been sleeping soundly when the deputies went up to awake him in the jail Tuesday morning to take him to court for the second day of his trial.

Frank arrived at court, under charge of Sheriff Mangum, very shortly after 7 o'clock, and his breakfast was brought to him there from his home.

A crowd of several hundred people was gathered around the doors of the court house at 8:30 o'clock.

Mrs. Leo M. Frank, the wife of the accused, and his mother, Mrs. Ray Frank, of Brooklyn, appeared together in the court room about fifteen minutes before the trial was due to resume. Judge Roan, presiding, arrived shortly after them and went into the seclusion of his chambers. Lawyers for both sides arrived at five minutes to 9 o'clock.

Frank entered court at 8:50 o'clock and resumed his seat between his mother and his wife.

LEE RESUMES TESTIMONY.

Judge Roan went upon the bench at 9 o'clock and convened court. The jury brought in and Newt Lee, the negro night watchman on the stand at adjournment Monday afternoon, was recalled to the witness chair.

Just before court was convened, the doors were opened for a few moments and the crowd surged in until the 250 seats in the room were filled, leaving a hundred or more disappointed people outside the doors, which then were shut.

Attorney R. R. Arnold examined the diagram of the pencil factory which the state introduced Monday.

Attorney Rosser resumed his cross-questioning of Newt Lee.

For the first half hour of this interrogation Mr. Rosser sought to develop from the negro just how close he got to the dust bin before he saw the body. He wanted the negro to estimate in feet, which the negro was reluctant to do. Referring to measure distances by object or persons in the court room. The negro did estimate distances in feet, however, qualifying his estimates by "about".

Mr. Rosser evidently was endeavoring to make the negro admit that he could not [1 word illegible] the dust bin from the toilet, [1 world illegible] he would have found it necessary [1 word illegible] closer in order to see into the bin. As a result of the cross-questioning, the witness said that after he left the toilet he raised the lantern above his head and walked four or five feet toward the dust bin. He was then a good way from the body.

WITNESS BECOMES NETTLED.

When he first saw the feet of the body, the negro declared, he did not believe it was a body lying there. He then was scanning the dust bin to see if there was any fire there.

Mr. Rosser asked him a number of questions as to why he did not look into the dust bin on his former trips to the basement that night, and questioned him also at considerable length as to the relative location of the dust bin and the toilet, asking if it was not true that the dust bin was not considerably at his right at the end of a partition. The negro became nettled at Mr. Rosser's insistent questioning on this point, and rising to his feet and clapping his hands he declared, "I'm going to tell you just like it is."

He then explained that the dust bin was diagonally opposite where he stood and in plain view.

Mr. Rosser asked him how far it was from the trap door to the dust bin.

"Isn't it about 125 feet?"

The negro said he didn't know, but it was a long way.

Mr. Rosser asked the negro why on his preceding trips into the basement that night he did not go farther back than the ladder. He had gone farther back, said the negro—twenty-five feet or so.

"On this particular trip you went back beyond the toilet, didn't you?"

The negro said yes, that he would have gone father than he did if he hadn't seen the body. He walked up close to the body with his lantern over his head. He wanted to see, he said, if it was an "natural" body. He didn't know but what it might have been an "unnatural" body.

He didn't know how long he looked at it, he said, before he went to call the police. He didn't stand there ten minutes, or five.

"I LIT ER RAG."

"Two minutes?" "I don't know, sir." "Two seconds?" "I don't know, sir, but I'll tell you the truth. I held up my lantern and looked good and just as quick as I found out it was a natural body I lit er rag!" The bailiffs rapped for order in court.

The face of the body was "all dirty," said the negro. Several white spots showed through the dirt, however, and the body's hair was "frizzly." He realigned at once that it was a white person, said he, and hurried away. He led the police to the basement and showed them the body by their electric searchlights, said he.

He didn't know how long it was until the police decided it was a white girl. They arrested him right away, said he, and sent him upstairs. Before that, however, he heard one of the officers say, "This is just a child. She must have been killed two or three days."

He didn't remember whether they carried him back to the basement any more that morning. Some days later the officers took hi[m] from police station to the basement. The negro didn't notice whether the rear basement door was open when the officers came. He was positive that it was not open earlier in the night.

The negro, describing the position of the body, declared that the girl was lying on her back with her head turned over so that the left side of her face was up. He saw blood, he said, on the left side of her head.

The attorney cross-examined the negro on his statements made at the coroner's inquest, and examined the negro for half an hour or more with the evident purpose of discrediting Lee's testimony of Monday afternoon relative to Frank being arrested on the afternoon of April 26.

TILT IN COUNSEL.

This examination led to a lively tilt of the opposing attorneys. Attorney Rosser was reading from the record of the coroner's inquest on Lee's testimony regarding Frank's actions when he first saw J. M. Gantt at the door of the factory that afternoon. According to the record as read by Mr. Rosser, Lee did not say at the coroner's inquest that Frank jumped back but did say that he looked frightened. At the inquest, according to Mr. Rosser's reading, Lee did say that he supposed Frank was frightened because he had fired Gantt from the position of bookkeeper.

Mr. Rosser wanted the witness to repeat that remark. Solicitor Dorsey was objecting immediately. It was a matter of opinion, said the solicitor, and when the negro expressed that opinion he did not know what he, Dorsey, now knows, and what the jury will know. After the attorneys had wrangled for some fifteen minutes over the point, Attorney Rosser turning to the counsel for the state said:

"I want to accommodate my young friends whenever I can."

Attorney Hooper, who was sitting down, remarked, "Well, you've got to accommodate me on this."

"No, I haven't," said Mr. Rosser.

"Yes you have," returned Hooper.

"The man hasn't been born that I've got to accommodate," retorted Mr. Rosser. After registering a strenuous objection that Mr. Dorsey had tried to lecture him, Mr. Rosser proceeded. Judge Roan ruled that the negro's opinion was inadmissible. Mr. Rosser read the opinion, however, without getting an answer from the negro upon it.

LEE DENIES RECORD.

Newt Lee, the witness, took vigorous issue with the record.

"Boss, I can't help what they write there," said he. "I'm telling all I know about this."

Mr. Rosser then went back to the finding of the body and read the record on that, wherein it appeared that when Lee realized it was a body he leaped from where he stood and went up the ladder. The negro demurred at that way of putting it, prefer[r]ing to say that he "lit out."

Mr. Rosser called the negro's attention to the fact as he stated it that nowhere in the record of the coroner's inquest did he state that it took Frank twice as long on Saturday to put the tape on the time clock as it had on a previous occasion. Lee contended that he had told the coroner's jury that it took "longer," but Mr. Rosser couldn't find that in the record. The negro said nobody asked him at the inquest to make a comparative statement.

The negro appeared to be holding his own remarkably well under the rigid cross-examination by Mr. Rosser. He argued with the attorney without hesitancy, and took open issue with the inquest record whenever the attorney contended that it conflicted in minor ways with his testimony in court.

THE NOTES.

Mr. Rosser asked Lee if he was in the basement when the police found some notes beside Mary Phagan. Before Lee could reply to the question Solicitor Dorsey objected. The notes themselves would be the best evidence on that point, he said.

Attorney Rosser argued that he wanted to show Lee's ready interpretation of these notes. What Lee said is not admissible, returned Mr. Dorsey, because Lee himself was not on trial.

Attorney Reuben Arnold for the first time since the trial began spoke up in court. If Lee had made damaging admissions, he argued to the court, they would be relevant and admissible.

Before the court could rule, the solicitor asked that the jury be taken out of court so the question could be argued. If evidence tending to involve Lee had to come before the jury, said he, he wanted it to come in the shape of admissible evidence and not from the argument of opposing attorneys and "in the right way." The jury was taken out. This was the first time the jury had left court.

Attorney Arnold addressing the court, contended that any substance or fact connected with the witness Newt Lee, which would show that he had something to do with the killing, is admissible. Although the night watchman admits having discovered the body, and late at night at that, he denies all previous knowledge of the crime and says that two notes were found by the body. The meaning of these notes, said Mr. Arnold, is obscure and doubtful.

ARNOLD READS NOTES.

"We expect to show that the witness testified that two notes were found," said he. "That the officers endeavored to read them to him and that they were obscure in meaning. One of them read this way. ‘He said he would love me. Laid down. Play like the night witch did it, but that long tall black negro did it by his self.'

"The man who wrote that note was trying to lay the crime on a long tall black negro. It was a clumsy effort to exculpate some other man. As soon as the words ‘night witch' were read to the witness, he spoke and said ‘That means me. I'm the nightwatchman.' This shows that the negro had knowledge of these notes. On the stand here he has appeared very dense and ignorant. Mr. Rosser has been compelled to question him at great length to bring out the slightest fact. In this instance, however, he interprets this note in a second and half."

Solicitor Dorsey was asked by the judge to restate his objection to this.

"This conversation, your honor," said the solicitor, "occurred between this witness and somebody else. Even had it been with Frank, the defendant, it would not be admissible. He is asked if a man did not read a note to him. The defense concedes that it was a note. They have got this note in their hands at this moment. I contend that it is not admissible to go into the contents of any paper, as the paper itself is the highest and best evidence, and no such paper has been introduced at this trial.

"It is not proper for the defense to attempt to go into the contents of this note by this witness. Such a course would not be proper except for the purpose of impeaching the witness and even then it is necessary to have the highest and best evidence—which is the note itself."

HOOPER SPEAKS.

Attorney Hooper, for the state, cited a case to show that the question would be inadmissible.

"If they undertake as they have indicated here," said he, "to put the crime on somebody else, that would put a different aspect on the matter. But until they do drain their guns on some third party, no such evidence can be admitted."

Attorney Rosser replied by saying:

"Your honor, we've got to commence somewhere to show him as a criminal. We can commence here as well as anywhere else."

Solicitor Dorsey insisted that the defense, through the line of questions put to the negro, was seeking to put the notes in evidence. This was denied by Attorney Rosser. The defense simply is using the notes to refresh its memory, said he, and to suggest questions for the witness.

JUDGE ROAN'S RULE.

Judge Roan ruled that anything was admissible which tended to show that this witness expressed anxiety or trepidation. While ruling that the cross-examination could proceed as begun by the defense, he announced that he would not permit the defense to go into the contents of the notes. The judge said further that it is for the jury to interpret the conduct of the witness. The jury was brought back and the cross-examination was resumed.

Mr. Rosser, reading from the note, asked Lee:

"Didn't one of the police begin to read this from the note: ‘The tall black slim negro did this. He will try to lay it on the night'—and when he got that far didn't you say, ‘Boss, that's me?'"

Solicitor Dorsey again objected, but Judge Roan held against him.

Lee asserted emphatically that he did not exclaim, "Boss, that's me." He said that he did say, "Somebody must have been trying to put it off on me."

This concluded the cross-examination of the negro.

On redirect examination, Solicitor General Dorsey asked:

"Did you ever know Jim Conley?"

"I met him the first time in jail the other day."

"Did anybody try to put this off on you?"

"No, sir."

"Did Mr. Frank ever try to put it off on you?"

The question was objected to by the defense, and the judge ruled for the defense.

"Whom have you talked to about this crime?" continued Mr. Dorsey.

"I talked to you and to some of the officers."

"Did you ever talk to Mr. Arnold here?"

"Yes, sir."

"Did you know that he was an attorney for Mr. Frank?"

"Yes, sir."

"Did you ever decline to talk to anybody about this?"

"No."

"Have you ever tried to conceal anything?"

"No."

Mr. Dorsey then brought from the negro the statement that Frank had remarked on the length of time it took him to fix the tape on the clock the second time and that was the reason the negro claimed to remember the incident.

About twenty minutes were consumed in the examination of a diagram of the building which the solicitor offered, the negro identifying parts of the picture.

THAT "THIRD DEGREE."

Resuming the cross examination of Lee, Attorney Rosser brought out from him again the location of the laboratories and machines, etc. In the rear of the second floor of the factory. The attorney questioned him also about the basement and its lighting conditions. Mr. Rosser questioned him about his treatment since arrest—who questioned him, how they dealt with him, etc.

Lee denied vehemently that the police had discharged a pistol close to his head to frighten him. Mr. Rosser asked him if the police hadn't cursed and abused him, and even prayed for him.

"Well, they never prayed much," answered the negro. Attorney Rosser then asked him if the detectives didn't question him continuously, one after another, and drive him almost crazy. "They didn't get much sleep for a few days after I was arrested," answered the negro. "As soon as I would lay down, somebody would call me and start in to questioning me."

Mr. Rosser asked him about interviews with detectives, singly and in pairs or greater numbers; particularly about one said to have taken place in the jail recently when he was present with Jim Conley, Attorney Hooper, Solicitor Dorsey and Detectives Campbell and Starnes. Lee said that for the first two days in jail he was bothered all the time with questions, but after that he was left alone, and after the inquest he was willing to stay in jail because he wasn't molested much.

Solicitor Dorsey asked the negro if Mr. Frank talked to him in the county jail.

"No, sir."

THROUGH WITH LEE.

Lee was excused then by both sides. A deputy sheriff started with him back to the county jail. "I never want to get up there again," said the negro, referring to the witness stand.

SERGEANT DOBBS ON STAND.

Police Sergeant L. S. Dobbs followed Newt Lee to the stand. He related how on Sunday morning, April 27, about 3:25 o'clock a call was received at police headquarters about the murder at the pencil factory.

He, in company with Sergeant Brown, Call Officer Anderson, Britt Craig, a newspaper reporter, and W. W. Rogers, rushed to the factory in Rogers' automobile.

Arriving at the factory, they found the front door locked. About two minutes after they knocked, the negro, Newt Lee, came down and opened it. The negro told them a dead woman was in the basement, and led them down through the scuttle hole and down a ladder into the basement. There was a gas light burning dimly at the ladder.

The negro led the officers about 150 feet back toward the rear of the basement. Just in the rear of a board partition on the left, the negro pointed out a body lying on the ground. The body was that of a girl, lying on its face with the left side on the ground and the right side raised slightly.

The sergeant couldn't tell at first glance whether the body was that of a negro girl or a white girl. He noticed the dark hair on the head. He turned the body over. The face was covered with dirt and dust. With a clean piece of paper he wiped the dirt from the one side of the face and saw that the body evidently was that of a white girl.

DESCRIBES WOUNDS.

To satisfy himself further as to the color of the body, the sergeant said he raised the skirt just above the left knee and saw that the skin was white. He noticed on the face where he had wiped it several slight wounds such as might have been made by the "picking" of a pocket knife.

A large cord was around the neck. The end of the cord trailed from the right side of the throat. This cord was drawn tight and had sunk deep into the flesh. A ruffle torn evidently from some underclothing was tied also around the neck but not so tightly as the cord.

There was a bruise on the right side of the head. Apparently it had been made by a blow. The hair was matted with blood. Sergeant Dobbs continued that after examining the body he called Lee, the night watchman, and questioned him about the matter, accusing him of having committed the crime or of knowing something about it.

He asked the negro how he happened to find the body in the dark basement. Solicitor Dorsey stopped the witness at this point and directed him not to give any hearsay evidence—to tell only what he saw himself.

"I looked around to see what I could find," said the witness, "and discovered a couple of notes."

Picking up some documents from his table, the solicitor started to hand them to him but changed his mind. He picked up a cord and some other articles which had been placed on the witness stand and asked Sergeant Dobbs:

"Have you ever seen this cord before?"

IDENTIFIES CORD.

The witness identified it as the cord which he found around the dead girl's neck.

The solicitor held out his arm and had the witness loop the cord around his wrist and explain to the jury just how it was tied around the girl's neck. The witness called attention to the slip knot in the cord. He also identified the strip of ruffle which was found around her neck.

There was not a great deal of blood on the head and hair, said he. The blood on the outside of the hair was dry, but down close to the scalp it was moist. The place where the body was found was damp.

The solicitor handed to him some documents which were identified by Sergeant Dobbs as the two notes and the tablet he had found near the body. The notes were enclosed in celluloid covers, front and back, with tape holding the covers together at the edges.

Sergeant Dobbs said that he did not know who the dead girl was, when first he saw the body. Later, said he, he learned that it was Mary Phagan. He described the position of the body, saying that the head was pointing toward the front of the building and was close to the partition.

The notes, said he, both were found under the sawdust near the head. Scratching around with his stick, he uncovered them. The tablet was just a few inches from the notes. He ordered that Lee be taken to the station house and locked up, said the sergeant.

He said that Newt Lee was cool and calm when he saw him first and that at no time did the negro seem to be excited. His attention was called to the diagram of the factory interior, produced Monday by the solicitor, and he pointed out the position of the body when he found it.

After Sergeant Dobbs had identified the diagram, Attorney Rosser took up the cross-examination. For the defense, Mr. Rosser questioned him closely as to the demeanor of Newt Lee when the police arrived, and Sergeant Dobbs repeated that the negro was calm.

SCRATCHED FOR NOTES

He did not remember saying at the inquest that the negro seemed to be very excited, he said. Mr. Rosser stressed the point that the sergeant had found the notes only after raking his stick through the sawdust.

He also brought out the fact that there was considerable trash, a number of pieces of paper, and several pencils, lying around in the basement. One of the girl's shoes and her hat had been found, said the sergeant, on a trash pile in front of the boiler.

In reply to questions Sergeant Dobbs declared that it looked to him as if the body had been dragged on its face. There was a trail in the dirt leading from the elevator to the point where the body was found, he said; and in addition the face looked as if someone had dragged the body, holding its feet.

Mr. Rosser asked the witness if he was certain that this trail led from the elevator, and when the witness answered "yes," he read the record of the coroner's inquest wherein the sergeant had testified, he said, that the trail led from the corner near the ladder.

Mr. Rosser questioned him regarding the police test of Lee's ability to see the body from the point at which he claimed to have been standing when he first spied it. Sergeant Dobbs said that it was possible to see the "bulk" of the body, but would have been difficult if the person had not been looking directly for some object.

Attorney Rosser brought out the fact that there was blood on the girl's underclothing and that this blood was dry; also that the blood on her face was dry, but moist at the roots of the hair on the scalp.

The sergeant admitted that he found the finger joints of the body movable. The staple on the back door looked as if it recently had been pulled out.

COURT TAKES RECESS.

Attorney Rosser developed from the witness the statement that when he reached the word "night" in reading one of the notes, Newt Lee exclaimed, "That means the night watchman." The witness declared that the strip of underclothing around the girl's neck was over, not under, the cord. At this point Attorney Rosser completed his cross-examination, and at 12:30 o'clock the court recessed until 2 o'clock.