that subject, and it is the desire of all the formed by a man of fascinating address and counsel for the defense. The question which pleasing manners. propound to the witness is a preliminary Mr. Cox. No, but it mitigates the act of question, designed to introduce that sub- the other parties that they were acting under Ject. his influence. The JUDGE ADVOCATE. It does not mitigate the assassination at all, that it was per The JUDGE ADVOCATE. Not at all. TESTIMONY CONCERNING SAMUEL ARNOLD. EATON G. HORNER. For the Prosecution.-May 18. On the morning of the 17th of April, Mr. Voltaire Randall and myself arrested the prisoner, Samuel Arnold, at Fortress Monroe. We took him in the back room of the store, where he slept. We there searched his person and his carpet-bag, in which we found a pistol, something like a Colt's. He said he had left another pistol and a knife at his father's, at Hookstown. Cross-examined by MR. EWING. Arnold made a statement verbally to us at Fortress Monroe. Before we left Baltimore, a letter was given to us by his father to give him when we should arrest him. We handed him the letter, and he read it. I inquired of him if he was going to do as they asked him to do, and he said that he was. He then gave us a statement and the names of certain men connected with a plan for the abduction of Abraham Lincoln. Mr. STONE. I object to the declarations of one of the accused against others of the accused, made perhaps to throw the responsibility off his own shoulders on that of the others. (under the guidance and advice of the learned Judge Advocate) and the facts of the case, will discard entirely from the record all evidence which is clearly inadmissible, and which ought not to be weighed adversely to a prisoner, because it is impossible for any man, in the nature of things, to discard from his consideration and prevent his judgment from being biased by evidence which is once submitted to him, and which may be in its nature adverse to the prisoner, although it may be incompetent and illegal evidence. Mr. EWING. The Judge Advocate, in the charges and by the evidence, has sought to associate him with the conspiracy, and one of the links of the association is the arms there. Therefore it seemed to me that any statement he made at that time and place, with reference to his connection with the conspiracy, is legitimate. If the Court will allow me, I will read a short paragraph from Roscoe's Criminal Evidence, page 53: "Where a confession by one prisoner is given in evidence which implicates the other prisoners by name, a doubt arises as to the propriety of suffering those names to be mentioned to the jury. On one circuit the praetice has been to omit their names, (Fletcher's Case, 4 C. & P. 250,) but it has been ruled Mr. EWING. The confession of one of the by Littledale, J., in several cases, that the accused in a conspiracy or alleged conspiracy, names must be given. Where it was objected, after the conspiracy has been either executed on behalf of a prisoner whose name was thus or abandoned, is not admissible—that is, will introduced, that the witness ought to be dinot be considered by the Court in weighing rected to omit his name, and merely say the question of the guilt or innocence of another person, Littledale, J., said, 'The those who are associated with him in the witness must mention the name. He is to charge; but that is a rule of law which tell us what the prisoner said, and if he left should not be so applied as to cut off one of out the name he would not do so. He did the accused from giving in evidence any state-not say another person, and the witness must ment which he made, accompanying such an give us the conversation just as it occurred; incident as his confession of the possession of but I shall tell the jury that it is not evidence against the other prisoner.' (Hearne's Case, 4 C & P. 215; Clewe's Case, Ìd. 255).” arms. MR. STONE. I take it, that is not the rule which governs courts-martial, as it certainly does not govern any other courts in the consideration of evidence. Whatever is not competent evidence is not allowed to go to a jury at all; it is excluded from their consideration entirely; and I take it for granted that this Court, having to determine both the law That paragraph evidently contemplates only confessions introduced by the prosecution; but if the course of the examination has been such as to make it the right of a prisoner to introduce a confession or statement, made at a particular moment, on his own behalf, he has just as much right to introduce the con fession, even though there be others associated an exchange of prisoners, or something like with him in the charge, as the prosecution that. I asked him what he was to do in it, would have, if it saw fit to do so. what his part was; I think he said he was The President, after consultation with the to catch the President when he was thrown members of the Commission, announced that out of the box at the theater. the objection was overruled. On my asking Arnold where he got the The question was repeated to the witness. arins, he said that Booth furnished the arms WITNESS. About three weeks previous to for all the men. Arnold said he asked Booth Arnold's going to Fortress Monroe, he said he what he should do with the arms; Booth was at a meeting held at the Lichau House, told him to take them and do any thing with on Pennsylvania Avenue, between Sixth and them; sell them if he chose. There was a Four-and-a-half Streets. J. Wilkes Booth, knife and a pistol at his father's, and a pistol Michael O'Laughlin, George A. Atzerodt, he brought with him to Fortress Monroe to John H. Surratt, and a man with the alias of Moseby, and another, a small man, whose name I could not recollect, were there. I asked him if he ever corresponded with Booth. At first he denied, but on my mentioning the letter that had been found in Booth's trunk, mailed at Huntstown, he admitted that he wrote that letter. In the same conversation he told me about the pistol and knife at his father's farm. We imprisoned him till evening, when we brought him to Baltimore. sell; that is the one we got in his carpet-bag. By MR. Cox. Cross-examined by MR. EWING. that Dr. From what Arnold said, I do not think that the meeting to which he referred was the first meeting. He said that at that meeting there were some new men that he had not seen before. He said that after discussing the scheme, he came to the conclusion that it was impracticable; that was the word he used. I understood him that he individually abandoned the scheme at that time, but I did not understand that the scheme was abandoned by the party, but that he considered that plan or mode of kidnapping the President as impracticable, and wished to withdraw from having any thing further to do with it. This meeting, I understood Arnold to say, was a week or two, it might have been two or three weeks, before he went to Fortress Monroe. There was no rope found in Arnold's sack. VOLTAIRE RANDALL. In that conversation, Arnold said Booth had letters of introduction to Mudd and Dr. Queen, but he said he did not know from whom Booth got the letters. On arriving in Baltimore, we took Arnold to Marshal McPhail's office. At the meeting at which Arnold and others were present an angry discussion took place. Booth, he said, got angry at something he said. Arnold said that if the thing was not done that week that be was there, he would withdraw. Booth got angry at this, and said that he ought to be shot for expressing himself in that way, or he had said enough for Booth to shoot I know the prisoner, Samuel Arnold. him, or words to that effect, when Arnold When we arrested him, I examined his said that two could play at that game. carpet-sack, and found in it some letters, Arnold said that he withdrew at that time, papers, clothing, a revolver, and some car and on the 1st of April occupied a position at Fortress Monroe with Mr. W. Wharton. He did not state, or I do not remember, the precise date of the meeting, and I do not know whether he said he had seen Booth since or not. Q But he stated that he had nothing more to do with the conspiracy? Assistant Judge Advocate BINGHAM objected to the question. tridges. For the Prosecution.-May 25. [Submitting to the witness a revolver.] This is the same revolver; the number is 164,557. I made a memorandum of it at the time, and this is the same. It was loaded then and is now. It is a Colt's navy pistol. [The pistol was offered in evidence.] Cross-examined by MR. EWING. I arrested Arnold at the storehouse of John W. Wharton, near Fortress Monroe. I believe the place is called Old Point; it was not in the fort. LIEUTENANT WILLIAM H. TERRY WITNESS. Arnold said that he would withdraw, or would have no connection with the business, if it was not done that week, on which Booth said something to the effect that he would be justified in shooting him for expressing himself in that way. I do not remember that he said after that that he would withdraw. He said that after that he did have I am attached to Colonel Ingraham's office nothing more to do with the conspiracy, but ac- in this city. On the night after the assassincepted a position under Mr. Wharton. He said ation, Mr. William Eaton, who has testified the purpose of the parties in this conspiracy, in this case, and who took charge of the up to the time he withdrew, was to abduct or trunk of J. Wilkes Booth, placed in my kidnap the President, and take him South, for hands the papers found among Booth's the purpose of making this Government have effects. (A letter was handed the witness.] That is one of the papers, and it was in that envelope. Colonel Taylor marked the envelope "Important," and signed his initials to it. [The letter was read as follows:] HOOKSTOWN, BALTO. Co., "} DEAR JOHN: Was business so important that you could not remain in Balto. till I saw you? I came in as soon as I could, but found you had gone to W-n. I called also to see Mike, but learned from his mother he had gone out with you, and had not returned. I concluded, therefore, he had gone with you. How inconsiderate you have been! When I left you, you stated we would not meet in a month or so. Therefore, I made application for employment, an answer to which I shall receive during the week. told my parents I had ceased with you. Can WILLIAM MCPHAIL For the Prosecution.-May 18. I am acquainted with the handwriting of Samuel Arnold. [Exhibiting to the witness the letter signed "Sam."] That has somewhat the appearance of his heavier in some parts of it. I should say it handwriting, though I think it is rather was his handwriting. Cross-examined by MR. EWING. I became acquainted with his handwriting from having a confession of his placed in my hands. It was a paper purporting to state all he knew in regard to this affair. It was written in the back room of Marshal James McPhail's office, No. 4 Fayette Street, Baltimore. The paper was handed by me to the Marshal, and I was informed that the officers delivered it to the Secretary of War GEORGE R. MAGEE. For the Prosecution.-May 25. By the JUDGE ADVOCATE. Q. State to the Court whether you know prisoner at the bar, Samuel Arnold. A. I do. Q. State to the Court whether or not he has been in the military service of the rebels. I, then, under existing circumstances, come as you request? You know full well that the G-t suspicions something is going on there; therefore, the undertaking is becoming more complicated. Why not, for the present, desist, for various reasons, which, if you look into, you can readily see, without my making any mention thereof. You, nor the any one, can censure me for my present course. You have been its cause, for how can I now come after telling them I had left you? Suspicion rests upon me now from my Mr. EWING. I object to that question. whole family, and even parties in the county. Arnold is here on trial for having been enI will be compelled to leave home any how, gaged in a conspiracy to do certain things, and how soon I care not. None, no not one, and it is not competent for the Government were more in favor of the enterprise than to show (if such be the fact) that before he myself, and to-day would be there, had you entered into the conspiracy he was in the not done as you have-by this I mean, man- military service of the Confederate States. ner of proceeding. I am, as you well know, He is not on trial for that. He is on trial in need. I am, you may say, in rags, for offenses defined clearly in the charge and whereas to-day I ought to be well clothed. specification, and it seems to me it is not I do not feel right stalking about with means, competent to aggravate the offense of which and more from appearances a beggar. I feel he is charged, and of which they seek to my dependence; but even all this would and prove him guilty, by proving that he has was forgotten, for I was one with you. Time been unfaithful to the Government in other more propitious will arrive yet. Do not act respects and at other times, and it can be rashly or in haste. I would prefer your first introduced for no other purpose than that query, "go and see how it will be taken of aggravating his alleged offenses in conneeat R- -d, and ere long I shall be better tion with this conspiracy. That course of prepared to again be with you. I dislike writing; would sooner verbally make known my views; yet your non-writing causes me thus to proceed. Do not in anger peruse this. Weigh all I have said, and, as a rational man and a friend, you can not censure or upbraid my conduct. I sincerely trust this, nor aught else that shall or may occur, will ever be an obstacle to obliterate our former friendship and attachment. Write me to Balto., as I expect to be in about Wednesday or Thursday, or, if you can possibly come on, I will Tuesday meet you in Balto., at B. Ever I subscribe myself, Your friend, [The letter was put in evidence.] SAM. testimony would be, in effect, to allow the prosecution to initiate testimony as to the previous character of the accused; and that is a right that is reserved to the accused, and is never allowed to the prosecution. It would do more than that: it would allow them to do what the accused is not allowed on his own behalf on the point of character-that is, to show acts wholly unconnected with the crimes with which he is charged, from which his previous character may be inferred. The JUDGE ADVOCATE. I think the testimony in this case has proved, what I believe history sufficiently attests, how kindred to each other are the crimes of treason against a nation and the assassination of its chief magistrate. I think of those crimes the one seems to be, if not the necessary conse-ground on which it is put-I state the auquence, certainly a logical sequence from thority in words-is that on a criminal trial, the other. The murder of the President of where the intent is in issue, other acts of the the United States, as alleged and shown, was prisoner not in issue may be proved against pre-eminently a political assassination. Dis- him by the prosecution, in order to show loyalty to the Government was its sole in- that intent. The cases are very numerous. spiration. When, therefore, we shall show, Mr. EWING. Just refer to the allegation. on the part of the accused, acts of intense Assistant Judge Advocate BINGHAM. The disloyalty, bearing arms in the field against gentleman asks me to refer to the allegation. that Government, we show with him the I will. The charge is, "Maliciously, unlawpresence of an animus toward the Govern- fully, and traitorously, and in aid of the exment which relieves this accusation of much, isting armed rebellion against the United if not all, of its improbability. And this States of America, on or before the 6th day course of proof is constantly resorted to in of March, A. D. 1865, combining, confedcriminal courts. I do not regard it as in the erating, and conspiring together," with the slightest degree a departure from the usages persons named in the charge, "and others of the profession in the administration of unknown, to kill and murder, within the public justice. The purpose is to show that Military Department of Washington, and the prisoner, in his mind and course of life, within the fortified and intrenched lines was prepared for the commission of this thereof, Abraham Lincoln," etc. Combining, crime; that the tendencies of his life, as confederating, and conferring together "in evidenced by open and overt acts, lead and aid of the existing armed rebellion against point to this crime, if not as a necessary, the United States of America," is the allegacertainly as a most probable result, and it is tion; that is the intent. with that view, and that only, that the testimony is offered. Mr. EWING. It is an allegation of fact, and not of intent. Assistant Judge Advocate BINGHAM. I understand the gentleman, but I assert that the words there used, "in aid of the existing armed rebellion against the United States of America," are words of intent; the formality of an indictment is simply departed from. If the charge had followed the common-law form, it would have read, "With intent to aid the existing armed rebellion against the United States, the parties did then and there agree, combine, and confederate together, to kill and murder the President of the United States." These words are not the express terms used, but they are by necessary implication implied; it is nothing but an allegation of intent, and never was any thing else. It is no part of the body of the charge beyond the allegation of intent. Assistant Judge Advocate BINGHAM. There is abundance of authority to sustain the position. In Roscoe there is express authority. The book is not here now, but as the gentleman calls for authority, I will state now, and pledge myself to bring the book into the court-room, that Roscoe's Criminal Evidence, about page 85 or 89, contains the express text in the body of it, that when the intent with which a thing is done is in issue, other acts of the prisoner not in issue, to prove that intent, may be given in evidence, and that is exactly the point that is made here by the Judge Advocate General. It is not the point contemplated by the counsel, and, putting it on the ground on which he Then comes the specification in regard to puts it, nobody contends for it. It is alleged the prisoner, Arnold. The first clause of the in this charge and specification that this specification is that the various persons here party engaged in this conspiracy to murder on trial, "and others unknown, citizens of the President of the United States, to mur- the United States aforesaid, and who were der the Secretary of State, to murder the then engaged in armed rebellion against the Vice-President, and to murder Lieutenant- United States of America, within the limits General Grant, the commander of the armies thereof, did, in aid of said armed rebellion, in the field under the direction of the Presi- on or before the 6th day of March, A. D. dent, with intent to aid the rebellion against 1865, and on divers other days and times the United States. The intent is put in issue between that day and the 15th day of April, here by the charge and specification against A. D. 1865, combine, confederate, and conall these prisoners, and the attempt now spire together, at Washington City, within made is to establish that intent by proving the Military Department of Washington, and what? By proving that this man himself within the intrenched fortifications and miliwas part of the rebellion; that he was in it. tary lines of the said United States, there I undertake to say that there is no authority being, unlawfully, maliciously, and traitorwhich is fit to be read in a court of justice ously to kill and murder Abraham Lincoln," any where that can be brought against it. etc., "and, by the means aforesaid, I may remark, in this connection, that the to aid and comfort the insurgents engaged general rules of evidence which obtain in in armed rebellion against the said United the courts of the common law, are always States as aforesaid." Is not that the same recognized by the military courts. The as saying, "designing and intending thereby to aid and comfort the insurgents engaged in mitted some other crime, would prejudice armed rebellion against the United States?" his cause materially; and it is to avoid that There is the specification, and I should like result that this wholesome rule of law has to know how an intent could be laid any been established. more strongly than that, or more formally than that. It is an allegation of intent, and I say the question stands on authority. Mr. EWING. If the Court will allow me, I will refer to an authority enunciating the great principle which I claim: That the assassination of the President grew out of the spirit of the rebellion, and was one of its monstrous developments, is most true; but the prisoners who are here on trial, are to be tried on evidence admissible under the rules of law, and the accused was not called upon to show here whether or not, a year or eighteen months before this alleged conspiracy was begun, he committed the crime of having taken up arms against He is not on trial for "Evidence will not be admitted on the part of the prosecution to show the bad character of the accused, unless he has called witnesses in support of his character, and even then the prosecution can not examine his Government. as to particular act." (Benét on Military that, and I think it is unjust to prejudice Law and Courts-martial, p. 287.) his case by hearing and recording evidence That is the general principle of law, which of it, if such evidence can, in fact, be prois, doubtless, familiar to the Court; but the duced. learned gentleman seeks to take this case I refer the Court, in further support of my out of the general principle, upon the argu- objection, to Wharton's Criminal Law, vol. 1, ment that it is alleged in the charge that p. 297, and Roscoe's Criminal Evidence, p. 76. the crimes for which the accused is being Assistant Judge Advocate BINGHAM. 1 tried, were done with the intent of aiding have no desire to delay the Court; but I am the rebellion. Now, if, by the practice of very anxious to make good what I said, and military courts, the allegation that these to vindicate the proposition of the Judge crimes were committed with intent to aid Advocate General. My proposition was, that the rebellion, were a necessary allegation, when the intent with which a thing was done the Court should reject the testimony now is put in issue, other acts of the prisoner not offered on the ground of irrelevancy. The in issue on the trial, of the same character, acts charged are acts of conspiracy to mur- may be given in evidence to prove that inder the President, the heads of Government, tent. Now I propose to read from the book and the leader of the armies of the United which the gentleman himself has read; but States during the existence of the rebellion; he did not read quite far enough: and proof of these acts would be conclusive as to the intent to aid the rebellion; and that evidence of intent would not be in the least aided by proof of service in the Confederate army prior to and unconnected with the acts of conspiracy. But the allegation of intent here is an unnecessary allegation. The crimes charged are the crimes of murder and attempted assassination, and it is unnecessary to go further, and allege that they were done with the intent to aid the rebellion. "Knowledge and intent, when material, must be shown by the prosecution." (Whar ton's American Criminal Law, p. 309, Bec. 631.) It becomes material here, because it is alleged as to the conspirators that they conspired with the intent to aid this rebellion, both in the charge and in the specification; not that they murdered with that intent, but conspired to murder with that intent, to aid the rebellion. The language of this author (Wharton) is, "Knowledge and intent, when If, to support this unnecessary allegation material, must be shown by the prosecution. as to intent, the Court should adinit evidence It is impossible, it is true, in most cases, to which would be inadmissible in the civil make them out by direct evidence, unless courts in a trial on an indictment for the they have been confessed, but may be gathcrimes here charged, it would, I think, violate the law of evidence, because the prose cution has seen fit to disregard the rules of pleading. The law of evidence is-and it applies to cases of conspiracy as to all other criminal cases-that the prosecution can As to guilty knowledge, on the same page show no criminal acts, not part of the res of the book, the author says: gesta of the offenses charged, unless the offenses charged consist of acts which are not in themselves obviously unlawful, and from the commission of which, therefore, the evil intent can not be presumed-such as uttering forged instruments, or counterfeit money, or receiving stolen goods. Before any jury, or almost any body of men, proof that a person charged with one erime, and on trial, had before that com ered from the conduct of the party as shown in proof; and when the tendency of his actions is direct and manifest, he must always be presumed to have designed the result when he acted." "The law in this respect seems to be, that evidence of other acts, or conduct of a similar character, even although involving substantive crimes, is admissible to prove guilty knowledge," even although it shows other crimes not involved before the Court. On the very next page the same author says: "The same evidence is generally admissi ble to prove intent as to show guilty knowl edge.' |