That is to say, other acts, although in-represented its standard in the councils. volving substantive crime, may be admitted. That is exactly why it is german. On the point the gentleman made, the writer The Commission overruled the objection. concludes on that question by saying, “That WITNESS. I can not state positively of if the crime itself is committed, the intent my own knowledge that the accused, Samuel is necessarily presumed by the law." To be Arnold, has been in the military service of sure it is. But there are two allegations the rebellion. I have seen him in Richmond here. One is a conspiracywith the rebel uniform on; whether it was Mr. EWING. To murder the President. the uniform of a private soldier or an officer, Assistant Judge Advocate BINGHAM. AI can not remember. This was in the year conspiracy, with intent to aid the rebellion, 1862. to murder the President; and then there is the murdering of the President in aid of the rebellion, in pursuance of the conspiracy. I would not say positively that it was not Now, we are trying to prove the intent with in 1861 I saw him. I know he had been which they entered into this conspiracy, and ill, but I can not state the year positively. I executed it. This book, in answer to that saw him several times; it was since the resuggestion of the gentleman, says: bellion, Cross-examined by MR. EWING. JAMES L. MCPHAIL. Recalled for the Prosecution.-May 18. A defendant's conduct during the res gesta, as his manner at the time of passing the note, or his having passed by several names, is also admissible for the same purpose; but the intent, the guilty knowledge, [Exhibiting the "Sam" letter to the witness.] must be brought directly home to the de I think that letter is in the handwriting fendant; but in no case can evidence tend-of Samuel Arnold; the direction, "J. Wilkes ing show it be admitted, until the corpus Booth," I should also think is his. I am delicti is first clearly shown." What then? acquainted with the handwriting of the Then it may be. prisoner, from having received a letter of his from his father, dated the 12th of April, from Fortress Monroe, the writing of which looks similar to that of this letter signed 'Sam." LITTLETON P. D. NEWMAN. Mr. EWING. That is the res gesta. Assistant Judge Advocate BINGHAM. No, as to the intent. What becomes of the objection now? The body of the crime has been proved according to the practice of the common law, as a general thing, and the only exception that I know of, of any note, is the exception made at common law in cases of conspiracy, which the gentleman will reI know the accused, Samuel Arnold. On member is written in the text of Starkie. the 9th, 10th, or 12th of September, Mr. Then what next? In order to prove the Arnold had been helping us to thrash wheat intent, you may have other acts of the at a neighbor's, and during that time there prisoner, although they involve substantive was a letter brought to him. In that letter crime; and the same text and section of there was either a twenty or a fifty-dollar Wharton goes on to say: note; I am not positive which. He read "On the charge of sending a threatening the letter, and remarked that he was flush letter, prior and subsequent letters from the of money, or something to that effect. After person to the party threatening may be given having read the letter, he handed it to me, in evidence, as explanatory of the meaning and I read some half a dozen lines, possiand intent of the particular letter upon which bly-not more. I did not understand it; it the indictment is framed." What do you say was very ambiguous in its language; and I handed it back to him, and asked him Mr. EWING. I say it does not apply at all. what it meant. He remarked that someAssistant Judge Advocate BINGHAM. Ithing big would take place one of these say it does apply; that sending prior and days, or be seen in the paper, or something subsequent letters is a distinctive crime, for to that effect. That was about all that ocwhich he might also be indicted, and enter-curred. to that? ing into this is a distinctive crime, for which I do not remember that I saw the signathe party may be also arraigned; but when ture to the letter; if I did, I do not remembe entered it, he entered into it to aid it, did ber what it was. he not? Mr. EWING. He did not enter into that to assassinate the President. Assistant Judge Advocate BINGHAM. Yes, be entered into it to assassinate the President; and everybody else that entered into the rebellion, entered it to assassinate everybody that represented this Government, that either followed the standard in the field, or The JUDGE ADVOCATE here announced that the testimony on the part of the Government had closed. See testimony of page 71 64 222 223 223 DEFENSE OF SAMUEL ARNOLD. WILLIAM S. ARNOLD. By MR. EWING. I am brother to the prisoner, Samuel Arnold, and reside at Hookstown, Baltimore County, Md. From the 21st of March up to Saturday, the 25th, my brother was with me in the country, at Hookstown. We went into Baltimore on Saturday evening, the 25th, and returned to the country again on Sunday, the 26th. We came again into town either on Tuesday or Wednesday. I went to the country again, and came in on Friday night. He went out with me on the 1st of April, and in the afternoon he went to Fortress Monroe. I do not know where my brother was between supper and bedtime on the next Saturday; I went out and left him at home, and he was in bed when I came back. On the following day he went back to Hookstown, and returned to Baltimore on the Tuesday on the 1st of April, when he went to Foror Wednesday. He gave those arms to me tress Monroe. He had had them out in 21st. The pistol was loaded when it was the country from the day he went there, the given to me. [The pistol found in Arnold's bag at Fortress Monroe shown to the witness.] That is not the pistol my brother gave to me; he gave me the pistol and knife by themselves. They were not in the valise. I did not give them to anybody, but I remember my father coming to the desk where they were placed, getting them, and taking them to Baltimore. It was a large-sized pistol, something like the one just shown me, By MR. EWING. On the 20th of March, I saw my brother shoot off two rounds out of the pistol, at the chickens; then he went into the house and reloaded it. I was at the door, and did not see him reload it. FRANK ARNOLD. For the Defense.-May 31. As I was coming into Baltimore on the 21st, I saw him in the coach going to Hookstown. From the 21st to the 25th, I saw him every day, and he slept with me every night. We arrived in Baltimore on the 25th, between 5 and 6 o'clock. I saw my brother at supper at my father's, and when I went to bed, between 9 and 10 o'clock, he was in bed. When we got up the next morning, I went down to the Government bakery, left him at home, told him I would be back in about half an hour, and we would go out in the country together. When I came back he was home, and between 9 and 10 o'clock that morning we started for the country. He staid there until the 28th or 29th, and I saw him every day and every night. It was on either a Tuesday or a Wednesday that he left, about 8 o'clock. I saw him next on Friday, when I came in from the country to my father's; my brother was there to supper. He was at home at my father's on I which came for him from Mr. Wharton, in that night. I did not sleep with him; my brother did; and I slept in the same room. reference to his application for a situation, The next day, Saturday, I took him out in telling him to come down, and he went down the country. We started about 8 o'clock, and on Saturday afternoon, the 1st of April, on came in between 12 and 1 at noon. In the the Norfolk boat, at about half-past 4. Capafternoon, between 3 and 4, he left for For- tain Moffatt of the Eighth Maryland took a tress Monroe. That was on the 1st of state-room with him. April. I am certain about these dates. Hookstown is about six miles from Balti more. more. my The accused, Samuel Arnold, is brother. I generally reside at my father's in Balti I saw my brother on the 30th and On the Friday morning I gave him a letter, 31st of March last; Thursday and Friday. By ASSISTANT JUDGE ADVOCATE Bingham. Cross-examined by ASSISTANT JUDGE ADVOCATE the date. I can fix the date of the 21st as being the day on which I saw my brother in the coach going to Hookstown, as I was going to Baltimore, because on that day Mr. I live in Hookstown, Baltimore County, Buffington, of the Three-mile House, had a Md; about half a mile from the residence sale of farming utensils, and Mr. Ditch had of William S. Arnold, brother of the prisoner, a sale the day before, at which I bought Samuel Arnold. Our farms join. From the some things, and entered them in my book. 20th to the 22d of March last, up to near the 30th, as near as I can get at it, I saw the seen the prisoner, Samuel Arnold, there; he was a clerk-chief-clerk, I believe in the same establishment. He came there on a Sunday morning, some time in the latter part of March or the 1st of April, and remained there about two weeks, up to the time of his arrest. I saw him every day during that I can not be sure whether it was the 20th or 22d that I saw him. I do not think it time. was the 23d or 19th. I have no particular reason for fixing the date; only an indistinct recollection of it. It is just about the same with the 30th; I kept no note of it. By MR. EWING. MINNIE POLE. For the Defense.-June 7. I reside in Baltimore. I am acquainted with the prisoner, Samuel Arnold. I saw I was over at his brother's place several him in that city on the 20th, 27th and 28th times during that period. I used to go there of April. On the 20th, I saw him in an for marketing stuff to take to the city; and omnibus, going to Hookstown; and on the 28th, I saw him at our house on his way to I used to go right in the field and get it. It was only on those occasions that I saw him Baltimore. I have not seen him since, until on his brother's place, and coming over. CHARLES B. HALL. For the Defense.—June 2. By MR. EWING. now. EATON G. HORNER. For the Defense.—June 6. By MR. EWING. The facts stated to me by the accused, For the past two months I have been at Samuel Arnold, to which I have testified, Fortress Monroe, as clerk to Mr. Wharton, were communicated to me by Arnold at a sutler there. His store is outside of the Fortress Monroe. He did not speak of any fortification, at what is called "Old Point." thing that occurred on the boat. The conI got acquainted with the prisoner, Samuel fession of Samuel Arnold, referred to by Arnold, at Mr. Wharton's store. He came William McPhail was written in Marshal there the latter part of March, or 1st of McPhail's office. April. He was employed by Mr. Wharton to assist him in book-keeping. I think he said there two weeks and one day. I saw him every day, but not all the time. I was engaged in another place part of the time. Mr. Wharton has the contract for Fortress Monroe. I was engaged there from about 7 o'clock until 2. I had business then at the lower store; and at about 5 o'clock I would return. I can not say positively, but I think it was about the 1st of March that he made the application in writing for employment. I only know of one letter from him, the one I answered, telling him to come, and he came in about a week. Major Stevens, a Government officer, has Arnold's letter. Arnold staid at the lower store and slept at Mr. Wharton's. I saw him every night. Cross-examined by ASSISTANT JUDGE ADVOCATE BINGHAM. JOHN W. WHARTON. For the Defense.—June 7. By MR. EWING. I live in the city of Baltimore; my place of business is at Fortress Monroe, outside. The prisoner, Samuel Arnold, was in my employ from the 2d of April to the 17th, when he was arrested. He was employed by the week as a clerk. I was absent about three days during that time, but I have reason to believe he was there all the time, or I should have been told of his absence. He was employed by me in consequence of a letter received by me from his father; also one from himself. Q. In that letter did he make any reference to the business in which he had theretofore been engaged? Assistant Judge Advocate BINGHAM replied, that if the letter were here, it would I was not at all acquainted with him be utterly inadmissible in regard to any before he came there. He opened the cor- thing contained in it about his former purrespondence himself, as far as I know, in suits or whereabouts, and doings of any sort, March last. GEORGE CRAIG. For the Defense.—May 31. By MR. EWING. I have lived at Old Point during the past two months, and have been employed as salesman in Mr. Wharton's store. I have for the simple reason that a party could not, either in writing or orally, make evidence at his pleasure, to bar the doors of justice against the power of the Government, which he is charged to have offended. Here tofore, testimony had been admitted as to the contents of the letter, so far as to show that Arnold had applied to the witness for employment. That had been admitted, because it seemed perhaps to be fair to the accused latitude of examination which had been inwithout doing injustice to the Government. dulged in on the part of the prosecution, this He had the benefit of that application, but proof might fairly be admitted. the proposition now made was entirely inadmissible. The JUDGE ADVOCATE. We have estab Fished that intimacy clearly in their associa tion in Washington. We are simply following them to Baltimore, and showing that there they were in correspondence with each other. It is a fact of the same order, and although it may not have the same force with the other fact, its tendency certainly is in the same direction. We do not offer the Mr. EWING stated that it had been proved that the letter in question was taken from the store of the witness by Major Smith, an officer of the United States, at the time of Arnold's arrest; the Judge Advocate had been requested some days since to produce the letter, and he had been unable to find it; so that if the letter itself would be ad- contents of the letter; we offer the fact of missible in evidence, it was now competent their correspondence with each other. to prove its contents by parol. It was a The Court sustained the objection. declaration by the prisoner, Arnold, at the time of his application to the witness, as to his having abandoned the business in which he had formerly been engaged. Under the Each of the counsel for the accused here announced, on behalf of his client, that the defense was closed. Tuesday, May 16, 1865. DISCUSSION ON THE DAILY READING OF THE would be sufficient. The evidence of the last witnesses examined yesterday will prob ably be published in the Intelligencer to morrow. The PRESIDENT. Has the Judge Advocate any objection to that arrangement? The PRESIDENT. One of the members of the Court has moved that the reading of the The JUDGE ADVOCATE. I do not wish to record be dispensed with, inasmuch as the embarrass the Court, certainly, by any sugcounsel on the part of the prisoners are fur-gestions of mine. I am as anxious for the nished with an official copy of the record, dispatch of business as anybody can be; but and have an opportunity of examining it if this precedent is now established, it will during the intervals between the meetings of the Court, and can object to any thing that is incorrect, when they come into Court, if they find any inaccuracies. Colonel TOMPKINS. Besides, it is very accurately published in the morning papers. be, I think, not only the first one which has been set in the military service, but the first in the civil service. I never, in my whole life, have been in connection with any court, the proceedings of which were not read over in the hearing of the court itself, before Mr. EWING. If the Court will allow me, I they were declared by the court to be accuwill state that the reporters are not able to rate and complete. Although I have as furnish us immediately with an official copy much confidence in the accuracy of our reof the record; it is always behindhand a day porters as anybody can have, I think it or so; but inasmuch as the record is pub- would be a dangerous example to set, and I lished quite accurately in the Intelligencer, would rather see it in any case that has from the notes of the reporters, if the Court arisen in the military service of the country will allow us the privilege at any time, even than in this, where there are so many lives though it be not the day after the examina- at stake, and where it is so vastly important, tion of a witness, in case we discover an not only that there should be strict accterror, to ask that the witness be recalled, it racy, but that the country should feel assured would be satisfactory, so far as I am con- that it is so, and that all the precautions cerned. If this arrangement is made, it will necessary to secure that result, have been be necessary for the Judge Advocate to de- resorted to. If it shall be known hereafter tain witnesses for, say, two days after their in connection with this trial, that the Cour examination, so that we may have time to departed from the usages of the service, and read the testimony as published in the paper, did not even have its own record read over. or as furnished us by the reporters. We have not yet been furnished with the last of yesterday's proceedings, nor has that portion been published in the paper. The PRESIDENT. I should think a detention of one day would be ample. but trusted simply to the reporters for se I think the reading Mr. EWING. If the witnesses who were should be proceeded with every morning for examined yesterday were detained until after the purpose of correction, if any correction the Court meets to-morrow, I think that should be necessary. The PRESIDENT. I am very much inclined, relevant to the issue. But if any opponent after hearing the opinion of the Judge Ad- witness be asked questions on cross-examinvocate General, to change my first impression ation which are not relevant to the issueon the subject, and I will vote against the which, as we shall hereafter see, may be proposition, though I thought favorably of it done, (p. 146)—the answer must be taken, at first. and he can not be contradicted by other evidence. Spenceley v. De Willott, 7 East. 108; R. v. Yewin, 2 Camp., 638, where a witness was asked whether he had not been charged with robbing the prisoner, his master, which he denied, and Lawrence, J., refused to allow him to be contradicted on this point." (Roscoe's Criminal Evidence, p. 87.) The motion was then withdrawn, and the record was read and approved. Thursday, June 8, 1865. The Court sustained the objection. June 8, 1865. Mr. AIKEN proposed to offer in evidence a telegraphic dispatch from Montreal, Canada, containing an affidavit of John McCullough, made before the Vice-Consul of the United States in Montreal, for the purpose of contradicting a statement made by Louis J. Weichmann, a witness for the prosecution, Mr. EWING offered in evidence, on the part that he had seen McCullough at Booth's of the defense, a copy of General Orders room in the National Hotel on the 2d day No. 26, War Department, Adjutant-General's of April last. Office, Washington, February 2, 1863, as follows: WAR DEPARTMENT, General Orders No. 26. Assistant Judge Advocate BINGHAM objected to the introduction of the paper. It was a wholly immaterial question whether McCullough ever met Weichmann or not. Mr. AIKEN claimed that it was competent to disprove any statement made by WeichThe district of country north of the Potomann which was not true. Mr. Weichmann mac River, from Piscataway Creek to Anhad sworn to certain statements which were napolis Junction and the mouth of the contradicted in this sworn affidavit of Mr. Monocacy, and south by Goose Creek and McCullough. If he was mistaken in such Bull Run Mountain to the mouth of the small matters, might he not also be mistaken Occoquan, will constitute the Department of in the greater matter of the guilt or inno- Washington, and troops in that department will constitute the Twenty-second Army Corps, to be commanded by Major-General Heintzel cence of some of the accused. man. By order of the Secretary of War. Assistant Judge Advocate BINGHAM replied that this was an illegal mode of attacking a witness. If, on cross-examination, a witness is asked an immaterial question, his answer concludes the party asking the question. The JUDGE ADVOCATE proposed to read to Mr. EWING, with the consent of the Judge the Court an authority on this point, as it Advocate, offered as evidence of the same was raised so often, and might be again; validity, as if the same fact were testified to and he wished the authority borne in mind, by Mr. John McCullough, the actor, on the "Irrelevant questions will not be allowed stand, the following telegraphic dispatch: to be put to a witness on cross-examination, although they relate to facts opened by the To John T. Ford, National Hotel: other party, but not proved in evidence. I left Washington on Monday evening, Nor can a witness be cross-examined as to March 26th, and have not been there since. any facts which, if admitted, would be col-You can have my testimony before American lateral and wholly irrelevant to the matters Consul here, if requisite. namely: in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. And if the wit MONTREAL, June 2, 1865. JOHN MCCULLOUGH. The JUDGE ADVOCATE offered in evidence, ness answers such an irrelevant question for the prosecution, the proclamation of the before it is disallowed or withdrawn, evidence President of the United States, for the incan not afterward be admitted to contradict formation and government of the army and his testimony on the collateral matter." all concerned, dated September 25, 1862, with (Benét, p. 307.) accompanying certificate of the Secretary of War, dated May 30, 1865. [See Appendix, page 419.) Assistant Judge Advocate BINGHAM stated that the same position was sustained by Roscoe's Criminal Evidence, p. 87, from which The JUDGE ADVOCATE also offered in evihe read the following extract: dence, for the prosecution, General Orders "Evidence to contradict the opponent wit- No. 100, Adjutant-General's Office, Washingnesses.-This may always be given on poits ton, April 24, 1863, containing "Instructions |