Saturday, 13th December 1913: Both Sides Ready To Begin Argument In Case Of Frank, The Atlanta Journal

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Filing of State's Brief in Famous Murder Trial Final Act Before Hearing in Supreme Court Monday.

NUMEROUS PRECEDENTS CITED IN DOCUMENTS

Judge Roan's Remark That He Was Uncertain of Prisoner's Guilt Will Be Center of Defense's Attack

With the filing of the state's brief in the case of Leo M. Frank, convicted of the murder of Mary Phagan, as plaintiff in error to the state supreme court, the documentary records in that case were completed late Friday night, and nothing remains but the arguments, set for bearing by the court next Monday.

In its brief the state phrases anew its construction and argument upon all the evidence which it brought to bear against the accused superintendent of the National Pencil factory, and its argument against the defense's motion for a new trial which Judge Roan overruled, and enters again into an exhaustive citation of all the authorities which it depends upon to establish precedent for its view of the case.

Two distinctly new phases are touched upon, however, first, Judge Roan's remark that he was not convinced either as to the guilt or innocence of Frank, uttered when he denied the motion for a new trial; and second, the state's effort to minimize technicalities and make them subordinate to the broader rule of common sense.

DANGEROUS PRECEDENT.

"We submit," sets out the state brief, answering the argument built by the defense on Judge Roan's expression when he denied the new trial motion that he was not convinced either as to the guilt or innocence of the accused, that it would be as dangerous a precedent to permit a judge to impeach the integrity of his official finding after the judgement of his official finding after the judgement is concluded, as it would be to permit the juror, after having been discharged from the consideration of the case to impeach his own verdict.

Authorities are cited to sustain this and the further contention that it is what the judge puts in his official order of record, and nothing else, that the supreme court is called on to review.

The state brief makes capital of the judge's remark, if remarks not entered in the order are to be considered, that notwithstanding his own lack of conviction in the matter, he was impelled to deny the motion "because the jury was convinced there is no room to doubt that," these quoted words being Judge Roan's language; and that he considered it his "duty," as he said, to overrule the motion.

CHARGES OF PREJUDICE.

In regard to the charges of prejudice made by the defense against Jurors Johenning and Henslee, the state declares the judge's decree regarding them is final; that under the law the trial judge is the trior as to the competency of the jurors.

The matter is entirely one of the judge's own discretion and there is not the slightest ground for the claim in this case that Judge Roan abused his discretion.

The first portion, numbering 69 pages, of the state's brief is devoted to what might be considered a repetition of the opening trial argument by the state, wherein the evidence adduced by the prosecution is construed and crystallized against the accused.

The second portion, numbering 25 pages, has the aspect of argument in rebuttal, the state considering the contentions made by the defense and weighing them against its own evidence.

The state begins this portion by declaring the defense has presented not one theory but several different theories and has developed none of them, leaving them to conflict with each other as they may.

It takes up and answers the new trial motion, ground by ground, sometimes grouping several grounds as relating to the same thing and to be answered at once.

In this the solicitor refers frequently to points raised and argued, as mere "padding" by the defense, as "quibbling," etc.

DIGEST OF WHOLE CASE.

The third portion is the formal brief and citations of law, a digest of the whole case from the state's viewpoint, with authorities given to support its contentions of precedent.

Speaking of demonstrations in the court room, the brief declares that the matter of excluding spectators rests entirely with the judge.

"There is no guarantee in the constitution that he (the prisoner) should be given a private trial, and such would be contrary to immemorial custom and public policy," sets out the brief.

CONCLUSION OF BRIEF.

The conclusion of the state's brief is as follows:

"We have undertaken to discuss every ground of the amended motion.

We desire now to call the court's attention to the statutory grounds embodied in the original motion.

We invite a perusal of the brief of evidence in the consideration of these grounds, and beg the court to remember the difficulties incident to the establishment of a case through the instrumentality of unwilling witnesses.

There is circumstantial evidence in abundance."

"Professor Wigmore could not have had a better illustration in mind when he said that 'evidence either extracted from hostile witnesses, which is the highest kind of evidence, especially where the witness is a deliberate liar or evidence directly sworn to by respectable witnesses in open court and then cross-examined and not shaken which is the next best evidence to the involuntary admissions of a liar interested in concealing the truth."

"In conclusion we desire to stress the doctrine of harmless error, with reference to which it is wholly unnecessary to cite any authorities; and to call to the attention of the court the following principle which should be acted upon as contained in the words of that (Continued on Page Two, Column One.)

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BOTH SIDES READY TO BEGIN ARGUMENT IN CASE OF FRANK (Continued from Page 1.)

eminent authority, Prof. Wigmore, and to be found in 'Principles of Proof,' in the introduction to which the author says:

PRINCIPLES OF EVIDENCE.

"A study of the principles of evidence for a lawyer falls into two distinct parts.

One is proof in the general sense. The other is admissibility, the procedural rules, etc."

"Hitherto the latter (admissibility) has loomed largest in our formal studies.

The judicial rules of admissibility are destined to lessen in relative importance during the next generation or later.

Proof will assume the important place, and we must, therefore, prepare ourselves for the shifting of the emphasis."

"A perusal of this evidence by an impartial mind, we submit, can lead to but one conclusion, viz., that there is no possible reasonable ground upon which to doubt the justness of the verdict rendered in this case and the correctness of the judge in approving and sustaining that verdict in his order overruling the motion for a new trial."

"Respectfully submitted, (Signed)

T. S. FELDER,

"Attorney General."

"H. M. DORSEY."

"Solicitor General."

"E. A. STEPHENS,"

"Assistant Solicitor General."

The Frank case is on the supreme court calendar for next Monday.

It is the custom of the supreme court to allow only two hours to the side for argument of cases, but it is generally expected that the attorneys for both sides will ask the court to allow additional time in this case. It is probable the request will be granted because of the volume of the record in the case.