0825 Sheet – Supreme Court Georgia Appeals of Leo Frank, 1913, 1914

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9. Because the Court, over objection made by the defendant at the time the same was offered, that it was immaterial and irrelevant, permitted the witness Darley to testify that on the morning the body was found Newt Lee was composed.

Defendant objected to this evidence as illegal, irrelevant and prejudicial to defendant which objection was overruled and movant assigns its admission as error for said same reasons.

This evidence was not only irrelevant and immaterial, as movant contends, but hurtful, because this evidence was heard upon the theory of comparison between the conduct of Lee and Frank.

10. Because the Court erred in failing, refusing, and declining, upon motion of the defendant made while the witness Conley was on the stand, to rule out, withdraw and exclude from the jury each and all of the following questions and answers of the witness Conley:

Q. What did he mean?
A. Well, what I taken it to be, the reason he said he wasn't built like other men, I had seen him in a position I hadn't seen any other man in that has got children.

Q. What position?
A. I have seen Mr. Frank in the office there about two or three times before Thanksgiving and a lady was in the office, and she was sitting down in a chair and she had her clothes up to here (dip to her waist) and Mr. Frank was down on his knees, and she had her hands on Mr. Frank, and I found them in that position.

Q. When you came into the office before Thanksgiving day, now, when the lady was sitting in the chair, he came out of the office, he saw me.
A. Yes, sir; he saw me when he came out of the office, he saw me.

Q. What was said when they saw you?
A. Mr. Frank was hollering "Yes, that is right." Frank came out of the office Mr. Frank was hollering "Yes, that is right, that is right" and he said, "That is all right, it will be easy to fix that way."

Q. Yes, did you ever see him on any other occasion?
A. Yes, sir.

Q. What other occasions?
A. I have seen Mr. Frank in the packing room there one time with a young lady laying on the table.

Q. How far was the woman on the table?
A. Well, she was on the edge of the table when I saw her.

The motion was made while the witness Conley was on the stand, and before any cross-examination had been had upon either of the circumstances referred to in said questions and answers, but after cross-examination upon other subjects had progressed a day and a half. The motion to rule out, withdraw and exclude was made because, as stated to the Court when the motion was made, said questions and answers were immaterial, irrelevant, illegal, prejudicial, and dealing with other matters and things and crimes irrelevant and disconnected with the issue in the case then on trial.