Saturday, 1st November 1913: Trial Judge Says Last Word On Bias Of Jury, Declares Court Of Appeals, The Atlanta Constitution

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Important

Decision Handed

Down, Following Close Up-

on Heels of Judge Roans

Decision in Frank Case, in

Which He Decided Jurors

Were Competent, and De-

nied New Trial.

FRANKS

LAWYERS WILL

TAKE CASE

IMMEDIATELY

TO THE SUPREME COURT

Bill of

Exceptions Filed to

Rulings of Judge Roan.

Rosser and Arnold Renew

Their Expressions of Faith

in Their Clients Innocence

and Will Fight

Bitterly.

Following upon the heels of Judge

Roans decision denying Leo M. Frank a new trial, the court of appeals affirmed

an old principle of law yesterday to the effect that the trial judge is the

trior as to the competency of jurors. Courts of review will not go behind the

decision of the trial judge as to whether or not the jury was biased.

The case was that of Taylor v. the

State, which was tried before Judge R. W. Freeman in Heard county. On the

motion for a new trial, the defendant introduced numerous affidavits for the purpose

of showing that two of the jurors were prejudiced and biased against the

accused. Juror Crockett was alleged to have said that the defendant ought to

be hung. He declared, it was said, that he did not see any chance for him. The

defendant and his counsel were both in ignorance of the bias of the juror.

Each of the attacked jurors denied on

oath the statements attributed to him and asserted that he was controlled

solely by the evidence delivered upon the stand in the rendition of the case.

Judge a Trior.

The court says:

In passing upon a ground of a motion

for a new trial in a criminal case, based upon alleged bias or prejudice of a

juror against the movant, evidenced in part by expressions of opinion previous

to the trial as to the guilt of the accused, the judge of the trial court

occupies the place of a trior, and his finding that the juror was competent

will not be reversed, unless it was manifest that his discretion was abused.

In another place the court declares

itself even more emphatically:

In this conflict, that is a conflict

between jurors and their attackers by affidavit, it was for the trial judge to

determine who swore trulythe witnesses who attacked the jurors or the jurors

themselves. The credibility of the witnesses, on the other hand, and the

jurors, on the other, was a matter solely for his determination and his

conclusion is not reviewable.

Numerous Past Decisions.

This decision of the court of appeals

is backed up by numerous citations of previous decisions of the supreme court,

so that there can be no doubt that the supreme court will not consider the

question of the bias of the jury in passing upon the Frank case. That question

has been finally passed upon by Judge Roan, who, in denying Frank a new trial,

has declared that, in his opinion, the jurors who tried him were competent.

There are other grounds that the

supreme court may consider, but they are limited largely to the admissibility

of evidence and the direction given the case by the trial judge. For error of

law or evidence of bias on the part of the court against the accused, they may

grant a new trial.

Prepare for Appeal.

Denied a new trial by Judge L. S. Roan,

the defense of Leo M. Frank is preparing one of the most determined legal

battles ever staged in the supreme court of Georgia.

On the other hand, the forces of Solicitor

General Hugh M. Dorsey, now augmented by Attorney General Tom Felder, are

equipping themselves to combat the fight planned by Franks defense.

Mr. Rosser said Friday afternoon:

We will never relinquish of the mans

innocence. Justice will finally be done.

Mr. Arnold:

Never a doubt has existed in our minds

that the man deserves a new trial. We are satisfied to go to the supreme court,

and are willing that the matter be decided simply on the legal points

involved.

Herbert Haas, associate in the defense,

said:

As long as there is breath in our

bodies we will fight. We are confident that the supreme court will grant a new

trial.

These were Solicitor Dorseys words:

The law is on our side in every

contested point. Thats all there e is say. The time to talk is when the court

is not with you. It is with us in this instance and theres no necessity for

talking.

Frank A. Hooper, associate prosecuting

attorney:

Frank had a fair and just trial. He

does not deserve a new trial. Judge Roan ruled properly.

Bill of Exceptions.

The bill of exceptions will be filed

with the clerk of supreme court some time today. This will mark the first

chapter of the coming battle. Considerable time will elapse before the

arguments are heard, and it is expected that they will not come before the

court until January or February.

The bill of exceptions is but a bare

skeleton of facts, containing the data of Franks original trial, the motion

for new arraignment and Judge Roans decision also, a number of important

grounds in the motion along with the affidavits presented at the new trial

hearing by the defense.

Following the presentation of the bill

of exceptions, the brief of evidence and amended motion for new trial will be

put in pamphlet form at the printers. This will require probably three weeks.

The case is not expected to be heard in the supreme court before the new year

at the earliest.

In a statement given to a Constitution

reporter Friday afternoon Attorney Frank Hooper spoke for the first time of

prejudice that arouse in the Frank case. He declared that the defense was not

justified in his attack upon Solicitor Dorsey, in which he was accused of

bitterness toward the prisoner because of Franks race.

A Scandinavian or an Irishman would

have been prosecuted just as vigorously as Frank, declared the attorney. The

solicitor did only his duty. The word Jew seldom entered the prosecutions line

of attack. Particular pains were taken to exclude all atmosphere of prejudice.

It was not the solicitors fault that the defense injected their clients

religion in the trial.

Says Dorsey Was Fair.

Solicitor

Dorsey prosecuted Frank as he prosecuted scores of Gentile criminals.

An interesting phase of the fight to be

waged before the supreme court is found in the entrance of Attorney General Tom

Felder into the case. Mr. Felder is legally thrown in co-operation with the

prosecution the moment the bill of exceptions is filled with the clerk of

court.

He will confer with Solicitor Dorsey at

an early date, at which conference plans will be mapped out for the

prosecutions lines of combat. Mr. Felder has already been notified of the plea

Franks defense will make to the supreme court.

Judge Roans Decision.

Judge Roans decision was announced in

his chamber in the Thrower building Friday morning at 10:10 oclock only a few

spectators were present. Messrs. Arnold, Rosser and Haas were present, as was

Solicitor Dorsey. The following formal decision was read:

After considering the above and

foregoing motion and affidavits by the defense and the state, the motion for a

new trial is hereby overruled and denied. This October 31, 1913. (Signed) L. S.

Roan, judge superior court, Fulton court, presiding.

Following which the Judge said:

I have heard all the evidence in this

case, and, taking it altogether, I am not thoroughly convinced as to the

innocence or guilt of defendant. The jury having passed upon
his case and been

convinced of his guilt, however, I do not feel disposed to overturn its

verdict. I consider it any duty to over-rule this motion.

Mr. Rosser was immediately on his feet,

praying that Judge Roan not resign from the superior court bench until he had certified

the bill of exceptions to be presented to the supreme court.

The judge did not commit himself,

asking merely how much time would be required in forming the bill. He was told

that it would probably be made some time Friday.

A strong plea was made by the defense

to admit to the supreme court the remarks of Judge Roan relative to his doubt

as to either the guilt or innocence of Frank. This was not granted. The judge

stated, however:

Judges Remarks Significant.

It will be permitted if my remarks are

contained in the bill of exceptions.

It is presumed that this has been done

by the defense.

In his cell in the Tower, Frank awaited

the decision with his wife. He was brought the news by M. Selig, a relative. He

made but little comment, hearing the verdict with characteristic fortitude.

Mrs. Frank, however, broke into tears.

The prisoner

refused to make a statement to a newspaper reporter, who made written requests.

He was visited by a number of relatives. Rabbi David Marx also called at his

cell during the day, and was present at the time the decision was brought in.