Tuesday, September 9th, 1913: Conley Is Indicted On Two Counts By Fulton Grand Jury, The Atlanta Journal

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The Atlanta Journal,

Tuesday, 9th September 1913.

One Bill Charges a Felony in That "Knowing Frank Murdered Mary Phagan, He Harored and Concealed Him"

FRANK'S ATTORNEY WILL CITE WILL MEYERS CASE

Decision in This Famous Case

Sure to Figure at Hearing

For New Trial-Jurors Charged With Bias

Two true bills, one charging Jim Conley with a misdemeanor "in concealing knowledge of the murder of Mary Phagan, and the other charging him with felony in being accessory to the murder after the deed, were turned Tuesday morning by the grand jury. The bills were returned after a brief deliberation only, the Conley case being the last taken up by the jury prior to adjournment.

The felony bill says that Conley, "Knowing that Leo M. Frank unlawfully and maliciously, with malice aforethought, killed and murdered one Mary Phagan, did conceal the body of Mary Phagan and did receive, harbor and conceal the said Leo M. Frank, and concealed the knowledge of the crime from the officers of the law."

The misdemeanor bill, drawn under another section of the code, charges that Conley, "Knowing that Leo M. Frank had unlawfully and with malice aforethought killed and murdered one Mary Phagan, did conceal said knowledge from the magistrate and did harbor and assist and protect Leo M. Frank."

Two bills were drawn because of a technical question as to the exact meaning of the word "conceal" in the felony bill, the solicitor intending to secure indictment under the felony charge if not on the misdemeanor charge.

The indictment of Leo M. Frank, showing the record of his conviction, was placed before the jury to show that the principal in the crime had been convicted.

Bond in the misdemeanor case was assessed at $1,000 and in the felony case at $4,000; and if Conley can arrange for a $5,000 bond he will be released.

Assistant Solicitor Stephens says that in all probability Conley will be tried on the felony charge instead of the misdemeanor charge; but could not estimate just when the trial would be held.

The maximum sentence in the misdemeanor charge is twelve months on the county gang, or six months in jail, or a fine or all three in the discretion of the judge.

The maximum penalty for the felony is three years' imprisonment.

Attack on Frank Jurors

Regarded as Certain

That at least one and perhaps more of the jurors who tried and convicted Leo M. Frank on a charge of murdering Mary Phagan were biased before they entered the jury box and had previously expressed an opinion that the young factory superintendent was guilty and should be hanged, will be one of the principal contentions for a new trial are made before Judge L. S. Roan on October 4 [1913].

Attorneys who represented the accused man in the famous trial are still unceasingly at work on the case and are directing their efforts toward unearthing facts upon which to base an appeal for a new trial.

The eligibility of a travelling salesman who voted for a conviction to serve on the jury is now under fire. Attorney Stiles Hopkins, associated with Attorney Luther Z. Rosser's office, left Atlanta a few days ago for Greensboro, Ga., with the intention of securing affidavits from persons who are said to have overheard remarks made by a salesman who later was a juror. Whether or not he procured the sworn statements is not known. A special dispatch to The Journal from its Greensboro correspondent contained the information that Attorney Hopkins was in that city Monday.

A rumor was afloat in Greensboro to the effect that Mr. Hopkins had three affidavits already in his possession.

(Continued on Page 4, Col. 1.)

CONLEY IS INDICTED ON TWO COUNTS BY FULTON GRAND JURY

(Continued From Page 1.)

This could not be affirmed either in the former town or Atlanta.

The rumor that the defense is endeavoring to prove bias on several jurors has been current in Atlanta for several days. Last Saturday night special investigators attached to Attorney Rosser's office interviewed in a local hotel a travelling salesman who is said to have heard of remarks made by one of the jurors. News of the juror's supposed remarks had come to him second-hand, however, and no affidavit was taken from him.

The attack of the defense upon the jury is regarded as vital. On several occasions in the legal history of the south judgements of lower courts have been reversed because it had been shown that jurors who voted for a conviction had previously expressed an opinion that the defendant was guilty.

MEYERS CASE TO FIGURE.

A striking example of this is contained in the opinion of the supreme court of Georgia reversing the judgement of the lower court in the first trial of Will Meyers. This is one of the state's most note criminal cases.

Paragraph Number 2 of this decision deals with this point:

"Upon the trial of a criminal case, the mind of every person chosen as a juror should at the time of his selection, with respect to the person and the particular matter under investigation, be, as between the state and the accused, in a position of perfect neutrality and though upon the voir dire they each do qualify as being thus impartial, a verdict of guilty may, nevertheless, be impeached by satisfactory proof that s ingle juror entered upon the discharge of his duties with a fixed and determined purpose, formed in advance of hearing the evidence, to convict the accused."

The decision continues, saying that the mere reading of newspapers or ephemeral impressions or opinions formed by other means is not necessarily inconsistent with such a state of neutrality as would permit the acceptance of the juror.

Paragraph Number 4 of the Meyer decision deals with a point that is likely to arise if the defense attacks the eligibility of the Frank jurors:

"The probative effect of affidavits submitted pro and con upon a motion to set aside a verdict upon the ground prejudice of a juror is ordinarily a matter for the trial court, and where there is upon such an issue a conflict of the evidence, this court will not usually control the discretion of the judge who tried the case if he sustain the verdict, even though, as against the affidavit of a single witness showing prejudice, nothing he offered in reply except that the juror upon voir dire qualified; yet where two witnesses depose with direct circumstantiality to statements and conduct of a person afterwards selected as a juror, made and occurring before the trial, which evidenced a deliberate purpose upon his part to convict the defendant in the event he should be chosen a juror, and no effort is made to discredit such affidavits, even by a contrary statement of the juror as to the facts stated herein or otherwise (he being at the time accessible), the testimony of such witnesses shall be accepted as true, and if supported by evidence that the facts to which they depose were unknown to the accused or his counsel until after the verdict, a new trial should be awarded."

CONFLICT IS LIKELY.

Indications are that the defense will make an attack upon the Frank jury similar to the one made upon the convicting body in the Meyers case. And there is certain to be a conflict of evidence inasmuch as Solicitor Dorsey till has a corps of aides gathering evidence to frustrate the effort of Attorneys Rosser and Reuben R. Arnold to secure a new trial.

If affidavits are presented declaring that one or more of the Frank jurors expressed bias and prejudice before the trial the prosecution is certain to attack these documents and attempt to impeach them. The merits of the attack upon the decision of the trial jury and of Solicitor Dorsey to discredit such an attack will be placed before Judge Roan upon whom will fall the responsibility of determining their legal weight.

In passing upon the question of jury bias in the Meyers case the decision of the supreme court reads:

"This defendant was convicted and is now under sentence of death, and upon the verdict of a jury one member of which he complains was not legally competent to try him. He alleges that before the juror entered upon the trial of the case, his individual judgement was concluded by what he had heard against the prisoner, and that this juror entered upon the trial of this case corruptly, with a deliberate purpose to bring about his execution. In support of this ground of the motion, he submitted the testimony of witnesses, two of whom deposed that upon one occasion soon after the commission of the homicide, the person afterwards chosen as a juror stated in their presence that the accused ought to be hung and pointed out a tree upon which the execution should take place. He submitted the testimony of two other witnesses who deposed that, some time after the homicide occurred and after the apprehension of this defendant, this juror stated in their presence with much earnestness and vehemence, that if he were chosen as a juror to try the accused he would sit upon a jury fifty years to break his neck. This juror in response to these several affidavits filed an answer to the first one above referred to only."

After other discussion of this phase of Meyers' motion the supreme court reversed the decision of the lower court and gave Meyers a new trial. He was again convicted, but made his escape from jail before the date set for his execution.

OVER FIFTY GROUNDS.

Attorney Luther Z. Rosser is devoting all of his time to preparing his argument for a new trial before Judge Roan on October 4. His chief associate, Reuben R. Arnold, is still out of the city and the work of compiling the exhaustive motion has made it necessary for Mr. Rosser to put aside virtually all other legal business.

There will be between fifty and one hundred grounds named in the motion for a new trial, it is reliably stated.

Every bit of the evidence is being gone over for flaws and nothing that shows favorably for Frank is being neglected.

The atmosphere of the court room and the alleged apparent hospitality of the crowd will be another important contention of Attorneys Rosser and Arnold. They will claim that the jury was, in a measure, cowed and influenced by the cheering that, on several occasions marked Solicitor Dorsey's efforts to convict the factory superintendent.

ANOTHER MEYER'S PARALLEL.

In the Meyers case is found another striking similarity with this feature. The contention that the defendant in the former case did not get a fair trial on account of the handling of the jury was claimed. Regarding this, the decision reads:

"While every person accused of crime is entitled to a public trial. It is not necessary to its legality that a great multitude should be in attendance, and the bar or court room to become so crowded as to impede the progress of the trial rendering it difficult for the jurors to enter or leave the box, or by preventing the free movement of counsel and witnesses; moreover, the jury should not be in such close and constant contact with the audience as that remarks of bystanders as to the guilt or innocence of the accused, or other indications of public feeling for or against him, may reach their ears or come under their observation. The bar at least should at all times be kept sufficiently open and clear for the prompt and orderly dispatch of the business of the court."

PAGE 3

MAYOR MUST PAY FOR

BEING DICTOGRAPHED

Attorney Rules That Mayor

Must Pay for City Dictograph

Bill Which Caught him

Mayor Woodward is legally obliged to pay the cost of the installation of the dictograph which was used by the city detective department to overhear conversations between Colonel T. B. Felder, A. S. Colyar, Stenographer Febuary, the mayor himself and others, according to an official opinion of City Attorney J. L. Mayson received by Chief of Police Beavers Tuesday morning.

Mayor Woodward several days ago refused to put his O. K. to the claim, which was presented against the city for this purpose. Also he refused to recognize bills for the rent of the two rooms in Williams House Number 2, the scene of the famous dictograph episode and for expenses sustained by the detective department in getting evidence against blind tigers. The amounts asked in the latter request embodied amounts paid "stool pigeons."

City Attorney Mayson's opinion to Chief Beavers was brief. It set forth simply that the claims were entirely legal and that he could find no city ordinance to sustain the non-payment of the bills. He advised Chief Beavers to bring again the bills before council and thus get them before the mayor once more.

The opinion was rendered at the request of Chief Beavers.

PAGE 5

JUDGE ROAN INDORSED FOR FULTON JUDGESHIP

Atlanta Lawyers Urge Governer Slaton to Appoint Well-Known Jurist to Office

A number of Atlanta lawyers, headed by Attorney Eugene R. Black, appeared before Governor Slaton Monday afternoon and urged him to appoint Judge L. S. Roan to the fourth superior court judgeship of the Atlanta circuit, which was created by the last general assembly.

Mr. Black declared to Governor Slaton that many members of the Atlanta Bar association who had signed the petition for the appointment of an Atlanta lawyer had based their action on the theory that Judge Roan was not an Atlanta lawyer. It was pointed out that Judge Roan has been a resident of Atlanta for about a year and that for many years he has, under a special act of the legislature, presided over the criminal division of the Fulton county superior court.

Governor Slaton expressed the hope that the Atlanta Bar association would be able to "get together" on the appointment, as he desired by all means to have a unanimity of action on the part of the association behind such an appointment.