0891 Sheet – Supreme Court Georgia Appeals of Leo Frank, 1913, 1914

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case of murder and can not be heard in a murder trial, even when the defend-
ant has put his character in issue.

41. Because the Court permitted the witness W. D. MoWorth to testify,
at the request of the Solicitor-General, over the objection of the defendant
made at the time the testimony was offered, that the same was immaterial,
"Mr. Pierce is the head of the Pinkerton office here. I do not know where
where he is; the last time I saw him was Monday evening. I do not know
Mr. Whitfield is (Mr. Whitfield was also a Pinkerton man). I saw him the
last time Monday afternoon. I do not know whether Pierce and Whitfield are
in the city or not."

The Court admitted this testimony over the objections of the defendant,
made at the time the testimony was offered, for the reasons stated and in so
doing committed error. This was especially prejudicial to the defendant.
Pierce and Whitfield were part of the Pinkerton's force in the city of Atlanta
- and the inference of the solicitor was that he wished their whereabouts to be
shown, upon the theory that the Pinkertons were employed by Frank for the
National Pencil Company and that a failure on the part of Frank to produce
them would be a presumption against him, as he stated it, upon the well-known
principle of law that if evidence is shown to be in the possession of a party
and not produced, it raises a presumption against them.

42. Because the Court permitted MoWorth, at the instance of the Solici
tor-General to testify over the objections of the defendant, made when the
evidence was offered, that the same was irrelevant, immaterial and illegal:
"I reported it (the finding of the club and envelope) to the police force
about 17 hours afterwards. After I reported the finding, I had a further con-
ference with the police about it about four hours afterwards. I told John
Black about the envelope and the club. I turned the envelope and club into
the possession of H. B. Pierce."

The Court heard this testimony over the objection of the defendant, made
as above stated, and in doing so committed error, for the reasons herein stated.

This was prejudicial to the defendant, because the Solicitor-General con-
tended that his failure to sooner report the finding of the club and the en-
velope to the police were circumstances against Frank. These detectives
were not employed by Frank, but by Frank for the National Pencil Company,
and movant contends that he is not bound by what they did or failed to do.
The Court should have so instructed the jury.

43. Because the court permitted the witness Irene Jackson, at the in-
stance of the Solicitor-General and over the objection of the defendant, that
the testimony was irrelevant, immaterial, illegal, to testify as follows:

Q. Do you remember having a conversation with Mr. Starnes about some-
thing that occurred.
A. Yes, sir.
Q. Now what was that dressing room incident that you told him about
that time?
A. I said she was undressing. 71