Pinkerton’s National Detective Agency vs National Pencil Company: Amended Motion for New Trial

(AMENDED MOTION FOR NEW TRIAL.)

GEORGIA, Fulton County.
Now comes the defendant, the National Pencil Company, and amends its motion for a new trial heretofore filed on Nov., 22, 1915, and says that the verdict in the above stated case should be set aside and a new trial granted for the following reasons, to-wit:

1. Because the court on its own motion and although the plaintiff's attorney had withdrawn all objection, refused to admit in evidence certain portions of the argument made by the solicitor General of the Atlanta Circuit on August 23d and 25th , 1913 at the trial of Leo M. Frank for murder in Fulton Superior Court, in which he had strongly urged and stressed, before the jury, as indicating guilt, certain testimony of Harry Scott, the assistant superintendent of the plaintiff, who had been in charge of the investigation of the Phagan murder. An agreement had been made between counsel for plaintiff and defendant that a certain printed pamphlet purporting to be a complete and correct copy of said argument was such in fact, and that the same, or any part thereof, might be introduced in evidence and given full force and effect as such, whenever legally admissible. It was portions of the said printed pamphlet that were offered in evidence by the defendant as above stated and excluded.

Movant contends that the exclusion of said evidence was error for the following reasons, to-wit:

One of the defenses of the National Pencil company to the complaint of the Pinkerton National Detective Agency was that in conducting its investigation of the murder of Mary Phagan, the said Agency, fearing that unless Leo M. Frank was convicted, its own prestige and standing in Atlanta as a detective agency and the personal safety of its employees would be imperiled, did not seek honestly and in good faith to ascertain the truth, but, on the contrary, endeavored dishonestly and in bad faith to suppress and distort the truth and to bring about the conviction of Frank regardless of guilt or innocence.

During the trial of this case, in the direct and cross examinations of the said Harry Scott, testifying for the plaintiff, testimony was given by him tending to show, as movant contends, that the contract between the plaintiff and defendant required the plaintiff, regardless of consequences to any person, to devote its efforts and skill to the ascertainment of the truth and the discovery of the guilty person. Other testimony was educed from said witness on cross examination tending, as movant contends, to show that in regard to a number of material points involved in the Frank trial, the reports rendered to the defendant in the first stages of the investigation by the said assistant superintendent Harry Scott, differed widely and materially from the testimony given several months later at the trial of Frank by the said Harry Scott, all such differences being to the material disadvantage of Frank. Among such differences, as movant contends, were the following;

a. In his report dated April 28, 1913, and in his testimony at the coroner's inquest on May 8, 1913, Harry Scott, the assistant superintendent of the Pinkertons, stated that in his first interview with Frank on April 28, 1913, Frank had stated to him that when Mary Phagan asked him had the metal come, he had replied to her "No", whereas in his testimony at the trial said Scott testified that his answer, as related by Frank, was, "I don't know."

b. In his report dated April 28, 1913, and in his testimony before the coroner's inquest on May 8, 1913, Frank had said to him that he left the factory for his lunch in the middle part of the day at about 1 P. M., whereas in his testimony at the trial said Scott testified that Frank had said to him on that occasion that he had left the factory at 1-10 P. M.

c. Neither in any report nor in his testimony before the coroner's inquest had the said Scott made any reference to any statement made to him in their first interview by said Frank to the effect that J. M. Gantt, a discharged employee of the defendant, was familiar and intimate with Mary Phagan, whereas in his direct examination at the trial said Scott testified that said Frank had made that statement, afterwards qualifying his testimony, on cross examination, by stating that he was not certain whether the remark was made by Frank or by another person who was present, N. V. Darley, and afterwards, at the trial of this case on November 18, 1915, still further changing his testimony by testifying that he was then certain that Frank and not Darley had made the remark referred to.

d. The reports made by the employee of the plaintiff to the defendant in May 1913, showed that the information that Conley could write had been obtained by said operatives from employees of the National Pencil Company and with their aid and suggestion whereas, the said Scott testified at the trial that information had been obtained by him from sources entirely independent of and disconnected from the National Pencil Company.

e. In his reports to the defendant, the said Scott made no mention of any display of nervousness by Leo M. Frank on the occasion of his interview with Newt Lee at the station House on the night of April 29th 1913. In his testimony at the coroner's inquest, said Scott swore that the entire interview had taken place out of his hearing in a room where he was not present. At the trial, said Scott testified that he had heard and witnessed the latter part of said interview and that Frank had displayed great nervousness.

Movant, at the time of tendering in evidence the portions of the argument of the Solicitor General referred to, then and there stated to the Court that said portions of said argument which it was desired to introduce, were those portions which dealt with the testimony of the said assistant superintendent Harry Scott in reference to the matters referred to in the preceding sub heads a-e, inclusive, of the ground of the motion for a new trial; and movant then and there stated that said portions of the Solicitor's argument which it was desired to introduce would show that said Solicitor General had strongly urged and stressed said portions of the testimony of said Harry Scott.

In order to show that said differences in the testimony of Scott were highly material, and to negative the idea that they might be trivial or unimportant, movant contends that it was entitled to put in evidence the fact that in the trial of Leo M. Frank, the Solicitor General, the prosecuting officer of the State, in his argument, had strongly urged and stressed said testimony in which such differences appeared, which fact movant proposed to establish by putting in evidence those portions of the Solicitor's argument which dealt with said testimony.

2. Because during the examination of H. B. Pierce, a witness sworn in behalf of the defendant and shown to have been the superintendent in charge of the Atlanta office of the Pinkerton National Detective Agency, the plaintiff, during its investigation of the Mary Phagan murder he testified as follows:

"I resigned from the Pinkerton's National Detective Agency for two things, the first was that I couldn't serve two master conscientiously, the state and the client, and the second was that on account of the conditions at that time. I believe I was serving the best interests of the Pinkerton's National Detective Agency by removing myself from the organization, from the fact that, had I testified in the trial of Frank, either for the prosecution or the defense, the Pinkerton's National Detective Agency would not have had a license twenty four hours after I got off the stand. That is the reason I resigned." On motion of counsel for the plaintiff, this testimony was tentatively ruled out by the Court, the Court saying: "I rule that out for the present".

Thereupon the witness was then asked the following question:

"Please explain, Mr. Pierce, in more detail, what do you mean by "serving two masters."

The witness was beginning to answer the question and to explain his meaning when counsel for the plaintiff objected to the question. Then and there counsel for the defendant stated in substance to the court that the answer of the witness to the question would tend:

First: To explain and make clear the meaning of the witness in his answer above quoted which the court had tentatively ruled out:

Second: To show that the witness in resigning from his position with the plaintiff was impelled by a strong conscientious objection to the attitude of the plaintiff in maintaining the guilt of Leo M. Frank, it being his own personal conviction that Frank was innocent; and

Third: To show that in the opinion of the witness as an expert in detective work, the Pinkerton National Detective Agency, in maintaining the guilt of Frank, under these circumstances, was acting dishonestly and in bad faith toward its employer, the National Pencil Company.

Thereupon the court sustained the objection to the question and refused to permit the witness to answer the same.

The testimony of the witness above set out, which the Court had tentatively excluded, was not thereafter admitted in evidence, and the same remained excluded.

Movant contends that the ruling of the court in excluding said answer of the witness tentatively, and exclusion which, through the absence of further action on the part of the Court, became permanent, and the ruling of the court in refusing to permit the witness to answer the above explanatory question were errors for the reasons stated above stated, and materially prejudicial to the defendant because they prevented the defendant from supporting and maintaining its defense that the plaintiff and its assistant superintendent Harry Scott, had been acting dishonestly and in bad faith throughout the investigation; the fact that the superintendent of the plaintiff was moved to resign and leave the employment of the plaintiff on account of its attitude in the matter, tending to support, as movant contends, this contention of the defendant.

3. Because the Court erred, as movant contends in wholly failing in its charge to the jury to instruct them that it was the duty of the plaintiff in conducting its investigation into the murder of Mary Phagan to act honestly and in good faith, and to deal honestly and in good faith with the defendant.
The only instruction in the entire charge given by the Court to the jury as to the nature of the duties imposed upon the plaintiff by its contract with the defendant was contained in the following paragraph of the charge, to-wit:

"If you should find that this contract existed, and to the extent that it existed, that the plaintiffs entered into this work, then the plaintiffs were bound to exercise reasonable diligence in the performance of the work."

One of the defenses of the National Pencil Company to the complaint of the Pinkerton National Detective Agency was that in conducting its investigation of the murder of Mary Phagan the said Agency, fearing that unless Leo M. Frank was convicted, its own prestige and standing in Atlanta as a detective agency and the personal safety of its employees would be imperiled, did not seek honestly and in good faith to ascertain the truth, but, on the contrary, endeavored dishonestly and in bad faith to suppress and distort the truth and to bring about the conviction of Frank regardless of guilt or innocence.

Movant contends that the charge of the court was materially defective in that while the Court undertook to instruct the jury as to the duties of the plaintiff towards the defendant under the contract between them, and instructed them that the plaintiff was bound to exercise reasonable diligence, it failed to instruct the jury that the plaintiff was also bound to perform its services honestly and in good faith, there having been introduced by the defendant a great deal of evidence tending, as movant contends, to show dishonesty and bad faith on the part of the plaintiff and a desire, for its own protection, to suppress and distort the truth and to procure the conviction of Frank regardless of his guilt or innocence. Such evidence, was, as movant contends, in addition to the matters set out under sub-heads a to e, inclusive, under the first ground of this motion for a new trial.

First: The evidence of the witness Herbert Schiff, sworn and testifying in behalf of the defendant to the effect that on one occasion during the investigation one of the operatives of the plaintiff, L. P. Whitefield, by name, had told him of dissensions in the office of the plaintiff, and that the assistant superintendent Harry Scott, had on one occasion during the course of the investigation called him into a private office and told him that if Frank was not convicted, it would be the last of the Pinkerton Agency in Atlanta.

Second: The testimony of said Harry Scott, sworn and testifying in behalf of the plaintiff, to the effect that during the investigation he had discharged said Whitefield for going out to Marietta and declaring publicly that Conley was guilty and that Frank was innocent.

Third: The testimony of said Harry Scott showing that in editing the original report made in his own handwriting by said operative L. P. Whitefield on May 16, 1913, dealing with the discovery by him of Conley's ability to write, preparatory to having the same re-written on a typewriter to be sent to the National Pencil Company, the said Scott had cut out and suppressed from same a statement of said Whitefield tending to show, as movant contends, that this fact had been discovered through the suggestion and aid of Leo M. Frank.

Fourth: The testimony of the said Scott at the trial of Leo M. Frank, showing, as movant contends, the methods employed by the said Harry Scott in tutoring the negro Conley and helping him to frame up a less incredible narrative that would inculpate Frank and exonerate himself.

Movant contends that the phrase, "reasonable diligence" used by the Court did not in any sense include the idea of honesty and contends that one may be diligent in dishonesty as well as in honesty. Movant submits that it was the duty of the court, whether specially requested by the defendant or not, to have instructed the jury that it was the duty of the plaintiff to have dealt honestly and good faith with the defendant, that under the charge as given, the case went to the jury without any instruction whatever on this point; and that this constituted error of a controlling and highly prejudicial character.

H. A. Alexander,
Movant's Attorney.

The recitals of fact contained in the original motion for a new trial and in the three grounds of the foregoing amended motion for a new trial, the same being all the grounds of said original and of said amended motion, are hereby approved as true. Let this amended motion be filed.

W. D. Ellis,
Judge S. C. A. C.
Feb. 3rd, 1916.
Filed 4th day of Feb., 1916. T. C. Miller, D. Clk.

After considering the above and foregoing motion and amended motion the same is hereby denied and overruled and each and every ground thereof.

This Feb. 4th, 1916.
W. D. Ellis,
Judge S. C. A. C.