You Are There: Atlanta Journal, August 7th, 1913

Judge Roan Decides Conley’s Testimony Must Stand

Attorney William M. Smith, who clashed in the court room Tuesday with Attorneys for Leo M. Frank, who didn’t want him to consult with client until Conley had finished his testimony.

Atlanta Journal
August 7th, 1913

Defense Asks Mistrial When Crowd in the Court Applauds Announcement of the Decision

Judge Roan, However, Refuses to Stop Trial—Dr. Harris on Stand During Afternoon and Again Asserts that Mary Phagan Suffered Violence Just Before Death—Dalton Called to Corroborate Conley But Court Adjourns Before He Testifies

Dr. H. F. Harris, secretary of the state board of health, was the first witness called for the Wednesday afternoon session after the jury was called into the room. The direct examination under Solicitor Dorsey was resumed.

Dr. Harris again asserted very positively that Mary Phagan had suffered violence of some kind immediately preceding her death, and explained in detail his reasons for reaching this conclusion.

The secretary of the state board of health was excused from the witness stand at 5 o’clock before his cross-examination had been finished. He was very weak, he said in response to the court’s inquiry, and was permitted to stop his testimony, which was resumed Thursday. Mrs. J. W. Coleman, mother of Mary Phagan, was the last witness examined before adjournment.

C. B. Dalton, mentioned by Conley, as having visited the factory in company with two women, was called just before court adjourned but did not testify.

Great excitement prevailed in the court room Wednesday afternoon when Judge L. S. Roan announced his decision to reverse himself on his ruling of Tuesday, striking out parts of Conley’s testimony. From the spectators gallery the crowd cheered the decision, but quieted down after Attorney Arnold, for the defense, made a motion to clear the room. Judge Roan refused to clear the court of spectators but warned the spectators not to repeat the demonstration. Attorney Arnold then moved for a mistrial, in this he was also overruled by the judge.

Judge Roan, in his ruling, held that all of Conley’s testimony would remain in the record of the case and that Solicitor Dorsey would be allowed to introduce witnesses to corroborate the negro’s charges against Frank’s conduct in his presence. As to allowing the Epps boy to testify as to what Mary Phagan told him regarding her fears of Frank, the judge held that inadmissible and the newsie will not be recalled.

When court reconvened at 2 o’clock, Solicitor Dorsey resumed his argument. The solicitor renewed his contention, citing authorities to back it up, that as a general rule failure to make objection to incompetent evidence at the time of introduction is a waiver of that right.

In this instance, said he, the court should hold that the defense had waived the right to object. In case of doubt as to the relevancy of evidence, said he, it should be left to the jury for that body to determined its weight.

The solicitor said that he cited several Georgia cases, among them some very old decisions. The solicitor stated that no fixed rule can be observed regarding the introduction of evidence of acts similar to the crime charged. The law says simply, says he, there must be some logical connection which proves or tends to prove the other. It must be one of a system of mutually dependent crimes, said he.

“I intend to show,” said he, “that this crime was one of a system of mutually dependent crimes.”

The solicitor contended that he had the right to introduce evidence of transactions which serve to illustrate the state of mind of the defendant or his intention or purpose.

“The fact,” he said, “that they are simply crimes, does not make them inadmissible.”


The solicitor asked if he should proceed with argument on his second proposition—involving his right to enter testimony corroborative of Conley’s. Judge Roan told him to proceed with that argument.

While the solicitor argued Attorney Rosser sat in the witness’ chair, lolling back, with his legs crossed, rubbing his head.

Solicitor Dorsey emphasized the fact that he was quoting the laws and decisions of Georgia courts.

“We object, your honor, to the ruling out of this evidence which is already in and permeates the whole record, due to the direct and cross-examinations, and we want to introduce other evidence along the same line,” said the solicitor.

Judge Roan asked what he expected to show by Dalton’s testimony.

“I expect to show that what Conley has said about these things is true,” said the solicitor.

“What do you expect to show by George Epps?” asked the judge.

“I expect to show by him that when little Mary Phagan left him at Marietta and Forsyth streets to go to her death at the factory, she told this boy she feared Frank because he had tried to flirt with her, and that she expressed apprehension concerning his attitude toward her.


“This man,” said the solicitor, shaking his finger in Frank’s face across the table, “this man here was her superintendent. He paid her off, and she had expressed a fear of him. This is relevant and material evidence and we want to get it before the jury.”

Solicitor Dorsey read a number of decisions, announcing after each one, “That’s a Georgia decision,” and they were all in murder cases, and tended to sustain him in his contention that she evidence was admissible, and that after it had gotten into the records and been sealed there by cross-examination it could not be withdrawn.

He argued by these decisions that facts having a bearing on the case apparently might be disassociated from the crime itself, but still could be material to the charge.

Attorney Hooper took the floor.

“Your honor, I am going to obey your admonition and be brief in this argument. It is simply a question of law—the law of Georgia, and that’s what controls this court; not the dictations of the supreme courts of California and Minnesota.

“With all of the authorities which we have here at hand, there is no necessity for argument. I want to call your honor’s attention to the rule and the law which govern this issue, and it is laid down here in the 88th Georgia, page 76, in plain Anglo-Saxon words.” Mr. Hooper read it. It was of the effect that objections must be reglatered at the time testimony is offered.

Mr. Hooper made the further point that even if evidence was inadmissible at the time it was offered, the state has examined the witness on his testimony, and the defense had cross-examined him on it, and if it is ruled out now it only carries with it just what the negro related as to these incidents and not what was developed from him under direct and cross-examinations, which runs clear through the records.

Mr. Hooper called the court’s attention to the fact that the testimony was necessary in order to explain what could not be explained without it—Conley’s signals and answers at the factory that day. Mr. Hooper read from a number of law books. As he lifted each from the table he reiterated “This is a Georgia authority.”

Continuing, Attorney Hooper declared that the testimony already introduced would explain the signals, and show what was meant by the stamping and the whistling.

Attorney Arnold concluded for the defense, citing authorities. He argued against the admissibility of the statement that Mary Phagan is said to have made to the Epps boy relative to going to the factory. After citing two authorities, he asked the judge if the court wanted to hear more. Judge Roan said no.

Judge Roan then asked Attorney Arnold what he had to say about the state’s right to put Dalton on the witness stand. “Well, I don’t know what they expect to prove by him,” said Attorney Arnold.

Solicitor Dorsey stated, “I tell you I expect to corroborate Conley’s story.”

Attorney Arnold cited an authority against the introduction of evidence.

At the conclusion of this argument, Judge Roan announced he was ready to rule.

“I have thought about this thoroughly,” he said, “and my mind is now made up. I doubt its admissibility as an original proposition, but it has been examined and cross-examined. It is impossible to withdraw it from the minds of the jurors. I could erase it from the records, but I am going to let it remain.”


A demonstration of applause broke out in court among the spectators. The deputy sheriffs immediately rapped for order and Attorney Arnold arose.

“I am going to make a motion to clear the court room,” said he.

Judge Roan said: “If there is another demonstration of this kind I will order it cleared.”

The excitement subsided, and the court room became normal again.

“Your honor, I ask for a mistrial,” declared Mr. Arnold.

“Why, the jury wasn’t in here,” said the judge.

“They might have heard it anyway,” continued Mr. Arnold.

“Well, I’m not going to stop this case,” said Judge Roan. This was construed by the attorneys as a definite overruling of the motion.

Mr. Arnold stated privately a few moments later that he had made his motion for a mistrial under the misapprehension that the jury was in court. He had withdrawn the motion, he said.


“I am going to do what I think is right in this case,” said Judge Roan, “no matter whom it pleases or displeases. I hold that the additional testimony of the Epps boy is wholly indadmissible.”

Attorney Rosser arose.

“I want your honor to say whether or not you admitted that Conley testimony because it was admissible,” said he, “for I am going to show line by line how it can be taken from the record. I will show you that it can be ruled out without affecting the record.”

“Well, you can do that, Mr. Rosser, but I am not going to stop this trial now in order to let you do it,” said Judge Roan. “You can do that at some other time. I am not going to let any of this excitement get to the jury.”

“Well, then your honor,” said Mr. Rosser, “I just want to know if you are going to let the Conley testimony remain in the record.”

“Yes, I am,” said the judge.

“Now, your honor,” said Mr. Rosser, “we object to the testimony of Dalton upon any subjects or about any time except things that occurred on that particular day, April 26.”


“I will hold,” said Judge Roan, “that the state shall have the right to corroborate Conley. I don’t know what Dalton will testify, but it will be time enough then to discuss his testimony when he goes on the stand.”

“Then there’s no use for us to object. You are going to admit it,” said Mr. Rosser.

“Yes, I purpose to let the state corroborate Conley’s story. However, I cannot rule as to Dalton’s testimony until he gets on the stand and I see what it is going to be.”


Judge Roan directed that the jury be brought in. The state recalled Dr. H. F. Harris, secretary of the state board of health, to the stand. On account of Dr. Harris’ illness, and evidently because it was anticipated that he would be kept on the stand some time, the deputy sheriff brought in a big leather upholstered swivel chair, to make it comfortable for him.

Mr. Dorsey resumed his direct examination of Dr. Harris.

“What are your specialties in medicine,” asked the solicitor.

“Pathology, diagnosis and chemical analysis.”


“What indicated to your mind that this girl, Mary Phagan, died from strangulation?”
Dr. Harris treated the question as frivolous. “Why, it was out of the question for that blow on the head to have caused it. There was but a drop of blood on the inside of the skull, and scarcely any pressure against the brain. Nothing else but the cord could have caused her death. The blueness of her hands and finger nails, and many other things, made it certain that she died from strangulation. The cord around her neck could not have caused these things had it been placed after death.”

“Doctor, did you examine the windpipe and the larynx?”

“Yes, I didn’t completely remove them, but I didn’t want to mutilate the little girl. But I saw the whole windpipe, and there was no injury to it. In strangulation cases, injuries to the windpipe are rare.”

“From the condition of her body, could you tell from what angle the cord was pulled?”

“No, sir,” said the doctor.

“What about the lungs?”

“I didn’t examine them very carefully, because you could tell but little about them on account of the nature of the embalming fluid used.”

Dr. Harris testified that he embalming fluid’s effect is only on the internal organs. It doesn’t get into the skin, he said.


The solicitor asked the defense to produce the bloody stick reputed to have been found by its agents in the factory.

“Could the wound on Mary Phagan’s head have been caused by a blow from that stick?”
“I don’t think it could,” said Dr. Harris. “The blow must have been struck with an instrument with a sharper corner.” The stick was perfectly round.

“Did you make a microscopic examination?”

“Yes, sir.”


“What is the value of a microscopic examination compared with an ocular or digital examination?”
“Why,” said Dr. Harris, “they can’t be compared. You can tell everything by microscopic examination, and practically nothing by an ocular examination.”

Dr. Harris asserted very positively that Mary Phagan had suffered some some [sic] sort of external violence and gave his reasons for his conclusion.

“About this cabbage—“

“Yes, the other day when I was on the stand I was so ill that I really could not tell a great many things about the cabbage, that I wanted to tell.”

“Go ahead,” said the solicitor.

Dr. Harris related some experiments that he made 15 years ago with the digestibility of cabbage. He was interrupted by Mr. Rosser, who said that as he understood it the rule is that a physician must tell what the scientific tact is and then explain the experiments from which the rule is deduced.

“I know of nobody else having made these experiments,” said Dr. Harris.

Judge Roan ruled that he could give reasons why he reached his conclusions. He would rule, said he, that Dr. Harris could give the science and results of his own individuals researches in connection with those of others in the scientific world.

Dr. Harris continued, saying that most ideas about the digestion of cabbage are wrong. “In my experiments I discovered that cabbage that was free from grease, freed itself from the stomach about as quickly as nearly any other article of food. Therefore I concluded this girl could have eaten this cabbage but a very short time before death—probably half or three-quarters of an hour.

Attorney Rosser interposed another objection. “I don’t doubt results of scientific experiments,” said he. “I know, though that if I ate cabbage today it would be on my stomach tomorrow. This witness should confine himself to stating the results of scientific experiment, and not of his personal experiments.”


The several attorneys argued this objection. Attorney Hooper cited an authority opposing it. Solicitor Dorsey called Judge Roan’s attention to a ruling he made in the Appelbaum case. In that case, according to the solicitor, the judge permitted the introduction of evidence regarding experiments made with pistol shots directed against cloths at police headquarters to determine at what nearness the fire from a revolver would burn an object in front of it. “Isn’t that instance paralled to this one?” inquired the solicitor.

Judge Roan ruled, “You can give the science of the subject not the results of individual cases.”

Attorney Hooper, who had been going through some law books, arose. “Your ruling is exactly contrary to this authority.”

“You should have produced that authority before I made this ruling,” said Judge Roan.

Mr. Hooper explained that he got it as quickly as he could, and Judge Roan asked to hear it.

After the decision was read, Attorney Arnold spoke up. “Mr. Hooper’s contention would be well taken if any two stomachs were alike,” said he. “If Dr. Harris will say the stomach he experimented on was exactly the same as that of Mary Phagan, we will allow the evidence to go in.”

Dr. Harris addressed Judge Roan to explain that he had once made an experiment on a girl of the same age as Mary Phagan. Attorney Arnold interrupted. “I thought I was arguing against the other attorneys,” said he.


Judge Roan ruled that Dr. Harris could continue his testimony, and the defense reserved an exception.

Dr. Harris had proceeded but a very short way in his story when Attorney Rosser interrupted him with the assertion that he was arguing and not merely stating the results of research. Judge Roan admonished Dr. Harris to proceed and leave out argument.

Dr. Harris proce[e]ded, but was interrupted immediately again by an objection from Mr. Rosser. Dr. Harris attempted to tell of an experiment he made about 30 years ago. Attorney Rosser contended that he had no right to go back that far. There was some argument, Solicitor Dorsey answering Mr. Rosser. Judge Roan ruled with the state.


Dr. Harris took from his grip three bottles, which he referred to as specimens. He stated that the latest experiments which he had related were upon four persons. Two of these were experimented upon twice.

“In every instance the effect on the cabbage was practically the same,” said the witness, “notwithstanding I had them swallow pieces of cabbage as large as that found in the stomach of Mary Phagan; notwithstanding that I made them eat the cabbage hurriedly or gulp it down.” Dr. Harris was holding the bottles as he talked.

“We object to these exhibits,” interrupted Mr. Rosser, referring to the bottles.

Judge Roan ruled that the exhibits were not in evidence yet. Before he could finish his ruling, Solicitor Dorsey interrupted him. “We know that, your honor. When we tender them, that will be another proposition. But if we can show by Dr. Harris, this expert, that he has experimented on other persons; that Mary Phagan’s stomach was normal and that the stomachs of these other persons were normal; that the intact condition of the cabbage was not due to indigestion; that the cabbage was cooked by Mrs. Coleman, Mary Phagan’s mother; that it was swallowed by these subjects in large pieces—is your honor going to rule—“

“I don’t know, yet, what I’m going to rule,” interrupted the judge.

“Is it possible, I was going to say, your honor, that after all this, this expert cannot tell the jury of his experiments and show them the results?”

Judge Roan inquired if the condition of the stomachs of the subjects upon whom he experimented was the same as the condition of Mary Phagan’s stomach. Dr. Harris replied that the conditions were as nearly the same as it would be possible to find in different people. Dr. Harris proceeded.

“I examined Mary Phagan’s stomach very carefully. It was normal in size and normal in every other particular. I examined it under the microscope, and I know that all the other subjects had normal stomachs. I could tell that by the secretions and by the other signs that physicians observe in determining the condition of a stomach.”

“Your honor,” Mr. Rosser interrupted, “the witness is attempting to argue one rule and testify all at the same time. He already has told enough to show that the same conditions didn’t prevail in these stomachs.

“He said something about looking at one stomach with a microscope. That may mean something. I don’t know. I think that these doctors are all guessers. He didn’t bring out the stomachs of these other subjects and examine them with a microscope. Therefore the conditions couldn’t have been the same.”

Judge Roan allowed the witness to proceed.

Dr. Harris asked the solicitor to pass the specimens over to the jury, holding them out in his hand.

“Wait a minute, doctor,” shouted Mr. Rosser. “You are not undertaking to direct this case, are you?”


The solicitor told Dr. Harris that that couldn’t be done inasmuch as the specimens had not been introduced in evidence. Dr. Harris referred to memoranda concerning his experiments to which he made particular reference showed the following results: In a normal healthy boy of 14 years, digestion of the cabbage began in 33 minutes. The time of beginning of digestion in the other subjects ranged on up to 70 minutes in a full grown man with a normal, healthy stomach, said he.

“I examined with the microscope even the tiniest particles of cabbage in Mary Phagan’s stomach—those which she had masticated thoroughly—and they had undergone practically no digestion. Within three-quarters of an hour after the subject eats cabbage you can detect with the microscope signs of digestion. This fact indicated beyond question that digestion had not gone on previous to the time the girl died or until the time when she became unconscious at least. I examined the contents of Mary Phagan’s stomach chemically as well, and found that digestion had proceeded but a very short time. This is perhaps of greater importance than the microscopic examination.”


“There ain’t no use for the witness to make a stump speech,” interrupted Mr. Rosser. “Let him give the facts.”

Judge Roan directed the witness to proceed.

“As I was saying, I found 162 centimeters of food in the stomach. Practically none of the food had gone down into the small intestine. This showed clearly that the contents of the stomach had not been pushed on into the smaller intestine and this pushing usually begins about thirty minutes after eating, and within an hour the food is usually well on toward digestion.”

Mr. Rosser interrupted. “Let the witness state facts. He’s making a stump speech.”

The witness continued. He stated that the amount of gastric juice secreted was considerably less than would occur in the average individual within an hour after eating.


Dr. Harris went fully into details of his examination of different acids in the stomach, and declared that they, together with the cabbage and the starch, made it possible for him to say with absolute certainty that Mary Phagan’s death occurred within thirty to forty minutes after she ate her last meal at home. He declared that her digestion and her stomach were normal in every way.

As a result of questions by Solicitor Dorsey, Dr. Harris said he used a glass with which he could magnify particles taken from the stomach up to 2,000 diameters.


Attorney Arnold cross examined the witness.

“When did Mr. Dorsey first talk to you about this case?”
“I don’t remember.”

“When did you make the first examination?”
“On May 5, I think.”

“Did Mr. Dorsey request you not to tell anybody about this examination?”
“He did.”

“Did you comply with his request?”
“I did.”

“Did he make that request as a solicitor general or as an individual?”
“He didn’t say.”

Dr. Harris continued: “I did not want to make any examination at all, but after talking to Mr. Dorsey he declared that I could be of great service to him, and because I liked him I consented to make the examination.”

“What special examination did he tell you to make?”
“He told me to make a complete examination and to tell him all I could about it. Oh yes; there was some suggestion at the time of poisoning, and I did make an examination for poison and found no trace.”

“Wouldn’t the same marks be left on the body if the cord had been placed around her neck while some other influence was at work producing death?”
“Yes, as long as the heart was beating.”


Dr. Harris declared in answer to questions, that there was no actual statistics as to the length of time it takes strangulation to produce death. He said there could be no statistics without degrees of strangulation and a knowledge of the exact time it started and the exact time death came. When strangulation was slow enough, it might take days or weeks. Drowning, he declared, does not produce the same results on the body as ordinary strangulation.

He said it was not entirely the cutting off of the oxygen that caused death from strangulation, but that other elements, such as the retention of carbonic-dioxygen poison, entered into the matter. A man’s heart may beat after he is dead, said the witness. He once saw a man drown, and he was brought out while his heart was still beating, but that he could not be resuscitated. Dr. Harris said that he could not say that the man was alive when he was brought out.

“If the air is cut off from the lungs completely, how long would it be before death?”
“Nobody can say,” replied Dr. Harris.

“What kind of poison did you look for, doctor?”
“I looked for alkaloids, vegetable poisons.”

“Why didn’t you look for mineral poisons, too?”
“There was some in the embalming fluid.”

“Well, I went to the undertaker and he told me.”


“What!” exclaimed Attorney Arnold. “Did that man give you his formula?”

“Why, he wouldn’t even swear to it here.”

“He must have thought better of me, then.”

“What is prusic acid?”

“Organic poison—vegetable poison. There was none present, however. Its odor is intense.”

“Well, you didn’t test especially for it, did you?”
“No, if it had been present the odor would have been enough.”

“Did you test for naconic acid poison?”

“Yes, I made the usual test and found none.”

“Were the contents that you took to make this poison test, in liquid or solid form?”


“Did you make this poison test before or after the other test?”
“I made them all at the same time.”

“What was the first test you made?”
“One for quantity.”

“Well, how many tests did you make altogether?”


“I made six or eight, or possibly ten.”

Attorney Arnold asked the witness to describe the several tests which he made. Dr. Harris explained them in scientific terms. Attorney Arnold interrupted with a score of questions to bring out details.

Attorney Arnold stopped him for a moment.

“Dr. Harris, you are talking so fast I don’t know whether the stenographer is getting down what you are saying. It is very important.”

The stenographer nodded his head, to show that he was getting it all right. Mr. Arnold told the witness to proceed.”


Dr. Harris stated that he found about two drops of hydrochloride acid in solution in the stomach. This is a very powerful property in digestion, and in a healthy, normal man, there are only about four drops. Mr. Arnold asked Dr. Harris a great many questions about the gastric juices, and the component parts of the gastric juices, and how they are secreted in the stomach.

The witness stated that next to hydrochloride acid, pepsin is a most important part of the gastric juices. Mr. Arnold wanted to know how much pepsin should have been in the stomach to correspond properly with the two drops of hydrochloride acid. That would depend upon circumstances, said the witness. There was no way to test the amount of pepsin. It was possible merely to tell the presence of pepsin. Pepsin, said he, is an animal product, and it comes from the stomachs of cows and hogs and sheep. Mr. Arnold questioned the witness as to the next most important element in the gastric juices.

“There are no more of particular importance,” replied the witness, explaining that the gastric juices consist principally of hydrochloric acid, pepsin and water.

“It is possible for an artificial gastric juice to be made, for a man to swallow with his food,” said the witness; adding that the natural gastric juices cannot be separated from the stomach except by chemical action. Mr. Arnold again asked what other elements were in the gastric juices. Dr. Harris said there were several others of minor importance, one of which is rennet.


Answering a question by Mr. Arnold, Dr. Harris stated that so far as he knew, no experiments upon the stomach of corpses, to determine the gastric juice action on food eaten just prior to death had been recorded. It would be difficult, said he, to get subjects who had died just after eating. The juices of the body “go out,” very shortly after death, said he.

Dr. Harris stated that the analysis of cabbage varies greatly, that all cabbage is not the same. He declared that it is just as nourishing as any other vegetable except possibly peas, potatoes and carrots.

At 5 o’clock, after the cross examination had been on for nearly an hour, Dr. Harris showed that he was weakening under strain. Judge Roan asked him if he would prefer to continue at another time. Dr. Harris said he would like to get a little rest. He had been out of bed but a short time, he said, and was weak. The court excused him upon his promise to return at a later time.

Dr. Harris admitted under questioning by Mr. Arnold that he had saved of the contents of the stomach except the pieces of cabbage which he exhibited in the bottle. He searched carefully to see if there were traces of any in the stomach and found none.


Mrs. J. W. Coleman, mother of Mary Phagan, was recalled to the stand.

There was some delay in getting Mrs. Coleman into court, and Solicitor Dorsey called J. N. Starnes, city detective, the nominal prosecutor, to the stand.

“Did you take some cabbage that Mrs. Coleman cooked, to Dr. Harris?”
“Yes, I bought some cabbage and took it to her, and she cooked it, and then I took it to Dr. Harris.”

Starnes was excused without further questioning.

Mrs. Coleman took the stand.

“State the comparison between the cabbage you cooked for Detective Starnes and that which you cooked and which Mary ate on April 26.”

“They were alike as nearly as I could cook them,” said Mrs. Coleman. “I all but fry my cabbage. I tear it up well and cook it about an hour.”

“What kind of pocketbook did Mary have on the day she left home, Mrs. Coleman?”

Attorney Rosser objected, “He’s already asked her about that,” said he.

Solicitor Dorsey said, “Oh, all right then; I forgot it if I did.”

Mrs. Coleman left the stand.


C. B. Dalton was called for the state but just after he entered the room Judge Roan adjourned the court, at 5:10 o’clock, until 9 o’clock, Thursday, and Dalton was dismissed until that time.