Why Should I Hang? Leo Frank and the Murder of Mary Phagan (pt. 7)

Conviction: August 26, 1913

Selected from 144 candidates, the jury deciding Leo Frank’s fate was comprised of twelve White men from various walks of life.  J.T. Ozburn was an optician and W.S. Metcalf a Georgian circulation agent; Marcellus Johenning a shop foreman and Charles Bosshardt a pressman; Atticus H. Henslee and Monroe S. Woodward salesmen for Franklin Buggy of Barnesville and King’s Hardware, respectively.  Amidst the publicity many wondered if Frank could find a jury which hadn’t already made up its mind about Frank, but both defense and prosecution appeared satisfied with the final selection.  The jury was seated on the trial’s first day: they were sequestered throughout the proceedings and earned $2 a day for their efforts.


Even before the jury left Reuben Arnold motioned for a mistrial, claiming the crowds outside — and the cheering spectators inside — had poisoned the jurors’ minds. Dorsey objected and, after some deliberation, Judge Roan denied the motion.  Roan then instructed the jury:

Leo M. Frank, the defendant, commences the trial of this issue with the presumption of innocence in his favor, and this presumption of innocence remains with him to shield him and protect him until the state shall overcome it and remove it by evidence offered to you, in your hearing and presence, sufficient in its strength and character to satisfy your minds beyond a reasonable doubt of his guilt of each and every material allegation made by the bill of indictment…


Gentlemen, the object of all legal investigation is the discovery of truth. That is the reason of you being selected, empaneled and sworn in this case — to discover what is the truth on this issue formed on this bill of indictment. Is Leo M. Frank guilty ? Are you satisfied of that beyond a reasonable doubt from the evidence in this case? Or is his plea of not guilty the truth?…


You are not compelled to find, from the evidence, his guilt beyond any doubt, but beyond a reasonable doubt, such a doubt as grows out of the evidence in the case, or for the want of evidence, such a doubt as a reasonable and impartial man would entertain about matters of the highest importance to himself after all reasonable efforts to ascertain the truth. This does not mean a fanciful doubt, one conjured up by the jury, but a reasonable doubt…


If you believe beyond a reasonable doubt from the evidence in this case that this defendant is guilty of murder, then you would be authorized in that event to say, “We, the jury, find the defendant guilty.” Should you go no further, gentlemen, and say nothing else in your verdict, the Court would have to sentence the defendant to the extreme penalty for murder, to wit: to be hanged by the neck until he is dead. But should you see fit to do so, in the event you arrive at the conclusion and belief beyond a reasonable doubt from the evidence that this defendant is guilty, then, gentlemen, you would be authorized in that event, if you saw fit to do so, to say: “We, the jury, find the defendant guilty, and we recommend that he be imprisoned in the penitentiary for life.” In the event you should make such a verdict as that, then the Court, under the law, would have to sentence the defendant to the penitentiary for life.

As the jury retired, Roan and attorneys for both sides worked out an agreement whereby Frank’s presence in the courtroom would not be required for the jury’s verdict.  The crowd outside had grown to over 5,000: mounted police worked to maintain order but the mood was tense. To avoid rioting in the event of acquittal, all parties agreed that it would be best if Frank remained in the Fulton County Tower. Dorsey requested that the defense waive its right to use Frank’s absence as a cause in future appeals: Rosser and Arnold agreed.

The first ballot came in 11-1: one juror, Atticus Henslee, had cast a “doubtful” ballot.  As he later explained:

I did this on the first ballot, because of the unanimity of opinion that Frank was guilty, as expressed by the jurors who discussed it after the court’s charge and prior to the ballot, for the purpose of forcing a full and free discussion of the case before rendering a verdict, as we understood it might consign Frank to his death. When on the second and last ballot a unanimous verdict of “Guilty” was rendered, I — in common with each and every other man on the jury — wept.

At 4:56 pm — three hours and 21 minutes after entering the chamber — the jury returned to the courtroom.  There jury foreman Fred Winburn, a railroad agent, announced that “We have found the defendant guilty.”  Roan polled the other eleven jurors over the thunderous roar from the watching crowd: each affirmed their vote.  John W. Coleman, Mary Phagan’s stepfather, rose from his seat and shook the hand of each juror.  That day the Georgian printed 131,208 copies, over three times its pre-Hearst circulation.

frank and wife
Atlanta Georgian, August 26, 1913, p. 3.

Thirty minutes later a team of Frank’s friends and supporters made their way to the Fulton County Tower and delivered the bad news. Lucille Frank clutched her husband and sobbed loudly.  Leo declared “My God! Even the jury was influenced by mob law.” Through his friend Benjamin Wildauer, a dentist, he told the crowd of journalists and citizens gathered outside “I am as innocent today as I was one year ago.”

Frank continued to maintain his innocence at the next day’s sentencing, telling Roan “I say now, as I always have, that I am innocent. Further than that, my case is in the hands of my lawyers.” Roan responded:

Mr. Frank, I have tried to see that you had a fair trial for the offense for which you have been indicted.  I have the consciousness of knowing that I have made every effort, as the law requires me to do, to see that your trial was fair. Your counsel has notified me that a motion for a new trial will be filed in due order, and it will be duly heard.  It is now my duty to pronounce the formal sentence upon you, which I will read in open court…


[O]n the tenth day of October, 1913, the defendant, Leo M. Frank, shall be executed by the sheriff of Fulton county in private, witnessed only by the executing officer, a sufficient guard, the relatives of such defendant, and such clergymen and friends as he may desire; such execution to take place in the common jail of Fulton county, and that said defendant on that day, between the hours of 10 o’clock am and 2 o’clock pm be by the sheriff of Fulton county hanged by the neck until he shall be dead, and may God have mercy on his soul.

Part 1Part 2Part 3Part 4Part 5Part 6, Part 8Part 9

8 thoughts on “Why Should I Hang? Leo Frank and the Murder of Mary Phagan (pt. 7)

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