the person's goods, whether he was found better humanity, and this little remnant of guilty or acquitted. These several acts, in all better nature urged Booth to make that dec their modifications, are indicative of fear, laration while it was yet time to do so. Wha which, however, may spring from causes very did he mean by that declaration? Not the different from that of conscious guilt. Mr. Herold was not guilty of the act of aiding an Justice Abbott, on the trial of Donnall for the assisting him (Booth) to escape; but what h murder of Mrs. Downing, observed, in his did mean, and what he tried to convey, was charge to the jury, that a person, however con- that Herold was guiltless of the stain of bloo scious of innocence, might not have the cour-being upon his hands, either as an accessor age to stand a trial, but might, though innocent, think it best to consult his safety by flight." Wharton, 4th ed., sec. 714. But what guilt in this case is the flight of Herold evidence of? He is found with Booth, and his flight in this case is not only evidence, but constitutes the guilt that he has acknowledged; it constitutes the guilt of his aiding in the escape of Booth, but no more. It by no means follows, because he aided Booth to escape, that he aided him to kill the President. It is bad reasoning to conclude that because he was guilty of one crime he was guilty of others. But it may be asked, why did he leave in the dead hour of the night with a murderer? A slight glance at the relative character of the two men may explain this difficulty. John Wilkes Booth, as appears from all the evidence in this case, was a man of determined and resolute will, of pleasing, fascinating manners, and one who exercised great influence and control over the lower orders of men with whom he was brought in contact. He was a man of means, quite a prominent actor, fine in personal appearance and manners, and an adept in athletic and manly exercises. All the force of his mind, all his means, and his time in the winter of 1865, were devoted to get agents to aid in his desperate enterprise. In his search he met with Herold, then out of employment, and he at once marked him for his own. Who is Herold, and what does the testimony disclose him to be? A weak, cowardly, foolish, miserable boy. On this point there is no conflict. Dr. McKim, who probably knew him best, and in whose employ he had been, declares that his mind was that of a boy of eleven years of age, although his age actually was about 22-not naturally vicious, but weak, light, trifling, easily persuaded, good tempered, ready to laugh and applaud, and ready to do the bidding of those around him. Such a boy was only wax in the hands of a man like Booth. But though Booth exercised unlimited control over this miserable boy, body and soul, he found him unfit for deeds of blood and violence; he was cowardly; he was too weak and trifling; but still he could be made useful. He knew some of the roads through Lower Maryland, and Booth persuaded him to act as guide, foot-boy, companion. This accounts for their companionship. before the fact to the murder of the Presiden or as an aider and abettor in that murder, any other deed of violence. That is what h meant. 88 I should mention here, what I might me properly, perhaps, have mentioned in anothe place, that I think it has been made clear fro the testimony, that Dr. Merritt, who Herold was in Canada between the 15th a 20th of February last, was manifestly mistaker Merritt was positive as to the location of th time, and if he did not see him there durin that time, he did not see him at all. He di not profess to have been introduced to him, to have had conversation with him, nor was pointed out to him, as Merritt says, by nam but the sum of his testimony is, that betwee the 15th and 20th of February last, a man w pointed out to him whose name was Harris and who, he thinks, was the prisoner Hero It appears, from the testimony of his little s ter, as well as that of Mrs. Jenkins, that He old was at home on the 15th of February; appears conclusively, from the testimony Mrs. Potts, that he was at home, as she pa him some money and took his receipt, on t 18th of February; and it appears equally co clusively from the testimony of Captain E monds, an officer in the navy, that ite was home on the 20th of the same month, showin clearly that Herold was not in Canada; th Dr. Merritt was mistaken; it was some oth man; more than probable Surratt, who w called very frequently by his middle name Harrison. It has been intimated by one of the Assists Judge Advocates that "where parties are i dicted for a conspiracy and the execution ther of, it is but one crime at the common law; s that, upon all authority, as many overt acts the execution of that conspiracy as they guilty of may be laid in the same count. this doctrine the accused can not assent. crime of conspiracy is thus defined by Mr. S geant Talfourd: "The offense of conspiracy consists, acco ing to all authorities, not in the accomplishm of any unlawful or injurious purpose, ner any one act moving toward that purpose, bat the actual concert and agreement of two more persons to effect something, which, be so concerted and agreed, the law regards as object of an indictable conspiracy." Per Ba J., 2 Barnewall and Alderson, 205. There is one piece of evidence introduced by the Government that should be weighed by the Commission. It is the declaration of Booth, If this decision is correct and of its made at the time of his capture: "I declare, rectness I think there can be no doubtbefore my Maker, that this man is innocent." crime of conspiracy becomes complete upon Booth knew well enough, at the time he made concert and agreement. The overt act is that declaration, that his hours, if not his min-essential to the completion of the crime. utes, were numbered. In natures the most de- In Wharton's American Criminal Law, se praved, there seems to be left some spark of a 2,335, the law is thus set out: "It is usual to set out the overt acts, that is old was one of the conspirators, it is not to be to say, those acts which may have been done taken of itself as any conclusive evidence that by any one or more of the conspirators in pur- he aided or abetted in any manner the murder. suance of the conspiracy, and in order to effect This case is being tried by the rules of evthe common purpose of it; but this is not requi- idence as known to the common law and the site, if the indictment charge what is in itself general principles of that law applicable to an unlawful conspiracy. The offense is com- criminal cases. I beg leave to call the attenplete on the consummation of the conspiracy, tion of the Court to one of the most important and the overt acts, though it is proper to set and most thoroughly established rules of the them forth, may be either regarded as matters common law in the investigation of all crimes, of aggravation, or discharged as surplusage." and that rule is this: That whenever upon any It seems to me clear from these authorities question there should arise in the minds of the that the conspiracy to commit a crime, and the investigating tribunal any reasonable doubt, actual commission of that crime, are nowhere the accused should have the benefit of that regarded in the eye of the law as constituting doubt. This rule has met with the unqualified but one offense. They do, in fact, constitute approbation of every judge in England and two separate and distinct offenses, and the party America whose name adorns the judicial hismay be indicted for them both, or for either of tory of either country. While I do not conthem separately. The prevailing doctrine in tend that the Court should for a moment exthis country, is, that where the conspiracy is amine the record for the purpose of raising to commit a felony, if the felony is afterward capricious doubts, still, whenever the record committed, the conspiracy merges in the felony, does present a case of reasonable doubt, I inconspiracy being regarded by all the writers sist that the accused shall have the benefit of as a misdemeanor merely. that doubt. Apply this principle to the main Again, if upon a conspiracy being entered charge in this case: Can the Court say, from into to commit murder, the murder is after- the evidence before them, that, on the night of ward actually committed by one of the conspir- the 14th of April, 1865, the accused, Herold, ators, it is not a conclusion of law that the was in a situation where he could render aid murder is committed also by the other co-con- in the actual murder of the President? Taking spirators. into consideration the mode and manner of Another principle here comes in. To the the execution of that murder, and Herold's crime of murder, there may be principals and position from the time of its commission, it accessories before and after the fact. A co- seems to me that it is almost, if not quite, clear conspirator may be an accessory before the that he was not in a situation where he could fact, but it does not follow, because he is a co-render such aid. Can the Court say, beyond conspirator, that he is an accessory before the a reasonable doubt, then, that he was an acfact. What is an accessory before the fact, is cessory before the fact? Can they say that thus defined: Herold did procure, counsel, command, or abet "An accessory before the fact, is one who, Booth to kill and murder the President of the though absent at the time of the commission United States? If so, what word or deed of of the felony, doth yet procure, counsel, com- Herold's can they point to in this record that mand, or abet another to commit such felony." does amount to procuring, counseling, comNow, where is the evidence that Herold pro-manding or abetting? There is clearly none. cured, counseled, commanded, or abetted Booth The feeble aid that he could render to any ento assassinate the President of the United terprise was rendered in accompanying and States? aiding Booth in his flight, and nothing beyond. That of itself is a grave crime, and carries with it its appropriate punishment. I beg leave to conclude this defense with a quotation from Benet on Military Law and Courts-martial: I beg leave again to refer the Court to the case of the Commonwealth vs. Knapp, 9 Pickering's Reports, 518: "The fact of the conspiracy being proved against the person is to be weighed as evidence in the case having a tendency to prove that "Where the punishments for particular ofthe prisoner aided, but it is not in itself to be fenses are not fixed by law, but left discretiontaken as a legal presumption of his having ary with the courts, the above mandate of the sided unless disproved by him. It is a ques- Constitution must be strictly kept in view, tion of evidence for the consideration of the and the benign influence of a mandate from jury." a still higher law ought not to be ignored, that` Should, then, the Court determine that Her-justice should be tempered with mercy." DAVID E. HAROLD. ARGUMENT IN DEFENSE OF EDWARD SPANGLER, BY THOMAS EWING, JR. Mr. President and Gentlemen of the Commission: In presenting to you this morning the case of the accused, Edward Spangler, I shall confine myself to a discussion of the evidence, leaving whatever I may see fit to say on the question of jurisdiction, and on the character of the charges and specifications to the occasion when my argument in the case of Mudd is presented. Preliminary to a consideration of the specific items of testimony against Edward Spangler, I will briefly refer to and ask consideration of the evidence as to his character, his occupation, his relations to Booth, and Booth's habits of resorting to the theater and fraternizing with its employees. John T. Ford says, on his cross-examination: Q. [By Mr. Ewing.] State what were the duties of the accused, Edward Spangler, on the stage. A. Spangler was employed as a stage hand, frequently misrepresented as the stage carpenter of the theater. He was a laborer to assist in the shoving of scenery into its place, and removing it within the groves, as the necessity of the play required. These were his duties at night, and during the day to assist in doing the rough carpenter work incidental to plays to be produced. Q. State his relations to Booth, as far as you have known them to be together at all. A. He seemed to have a great admiration for Booth. I have noticed that, in my business on the stage with the stage manager. Booth was a peculiarly fascinating man, and controlled the lower class of people, such as Spangler belonged to, I suppose, more than ordinary men would a man who excelled in all manly sports. And on his second examination, Ford says: Q. How long have you known the accused, Edward Spangler? A. Nearly four years, I think. Q. Was he in your employ through that time? A. Most of that time. Q. State what his character is for peace, good nature and kindness. A. He was always regarded as a very goodnatured, kind, willing man. His only fault was occasionally participating in drinking 276 liquor more than he should have done-dis. posed to drink at times-not so as to make him vicious, but more to unfit him to work. Q. Is he a quarrelsome man? A. I never knew him to be but in one quar rel since he has been in my employ, and that was through drink. Q. Was he faithful in attending to his du ties? A. Very; a good, efficient drudge; always willing to do anything; I never found him uBwilling. Q. Was he a man that was trusted with the confidence of others? A. I should think not to any extent. He had no self-respect. He was not one who had many associates. He usually slept in the theater-s man who rarely slept in a bed. Q. A harmless man? A. Very harmless-always esteemed so, I think, by all the company around the theater; often the subject of sport and fun; but never, except on one occasion, did I know him to be engaged in a quarrel. Q. How was he as to politics? Was he a man of intense feeling? A. I never knew anything of his political sentiments in this city. In Baltimore he was known to be a member of the American Order. I never heard an expression of political sentiment from him. Gifford says [cross-examination]: Q. What were his relations with Booth? A. Nothing that I know of, further than friendly. Everybody about the house was friendly with him. Q. Day and night? A. Yes, sir; except when the house was locked up and the watchman was there; he had no access to it then. Q. Was not Spangler a sort of a drudge for Booth? A. He appeared so; he used to go down and help him to hitch his horse up, and such things, I am told; I have seen him once or twice hitching the horse up myself. It is to be remarked here, that a stable a few yards from the back of the theater, and from the doors of the negro women, Mrs. Turner and Mrs. Anderson, was used by Booth for his horses and buggy, from early in January until the assassination, and Burroughs and Spangler, employed at the theater, attended to the drudgery at the stable. Burroughs ("Peanuts") says [cross-examination]: Q. Was not Spangler in the habit of bridling, and sadling, and hitching up Booth's horse? A. When I was not there he used to hitch him up. Q. Was he not in the habit of holding him, too, when you were not about? A. Yes, sir; and he used to feed him when I was not about. and he (G.) paid it over to Booth. This item is at least as good against Gifford and "Peanuts as against Spangler, and amounts to nothing against either. 3. There was found in Spangler's carpetsack, at his boarding-house, on the 17th of April (the day of his arrest), rope 81 feet long, some letter paper, and a shirt-collar. (Rosch.) The rope was offered in evidence; the letter paper and shirt collar were not. The rope was just like forty or fifty others used about the theater as "border ropes," and to "haul up lumber to the top dressing rooms, because the stairs are so narrow the timber can not be got up that way.” (Carland). "The border ropes are seventy to eighty feet long-not less than 80 feet." (Lamb.) "They are of just the same material, texture and size as this." (Carland, Lamb, Raybold.) "We used such ropes as this at the time of the Treasury Guards' ball, to stretch from the lobby to the wings, to hang on it the colors of different nations.' (Ray bold.) "This rope has evidently been in use." (Carland, Lamb, Raybold). "Sometimes we use them, and a great many of them, and then again we have to take them down, and they lie up there on the scene loft until we need them again." (Raybold). From the evidence, it appears probable Spangler stowed away this rope to use on his frequent fishing excursions as a crab line. Gifford says: While calling the attention of the Court to the evidence as to the relations existing between Spangler and Booth, I desire it also to mark the fact that in the great volume of tes- Q. State whether you know anything of the timony as to the letters, conversations, meet- accused, Edward Spangler, being accustomed ings, associations, acts done, and things said to crabbing and other fishing during the rewhich have been adduced as evidence in these cesses of his engagement, cases, there is not the slightest indication that A. I never saw him at it; but I have known Spangler ever met Booth except in and around him to tell me that he went crabbing-that he the theater, that he ever got a note or a message would go down to the Neck on Saturday night, from him, or ever saw or heard of any one of and stay until Monday morning, and come the persons suspected to have been associated home on Monday morning. I have never seen with Booth, in either the conspiracy to capture him at it myself; but I know that is what he or that to assassinate the President and the told me, and I have seen others who said the heads of the Government. same thing-that they had been crabbing to Now, in the light of the above-recited evi-gether. dence, I am certain there is nothing shown to Q. [Exhibiting to the witness the rope]. have been said or done by anybody prior to Will you state whether that rope is such a one the moment of assassination-outside of the as might be used in that sport? testimony of Sergeant Joseph M. Dye and A. They have a line something of this sort, John F. Šleickman-tending at all to show that and small lines tied on to it about that disSpangler had any intimation of Booth's guilty tance [three feet], with pieces of meat attached, purpose, or was in any way, even innocently, and as they go along they trail it along. I instrumental in effecting it. Let us briefly consider the several items of evidence of acts lone and things said prior to the conversation with Booth, narrated by Sleickman, and consultation with him noticed by Sergeant Dye, which have been adduced here as evidences of Spangler's guilt. have seen them at it, although I have never Q. State whether or not you know anything of the prisoner, Spangler, having been in the habit of going to Baltimore, and for what, during the spring. 1. He repaired Booth's stable, in January, Burroughs says. What of that? He was a ough carpenter, and a drudge at the theater, A. I know that he had lived in Baltimore, and the stable was near at hand. The inci- and buried his wife there some eight or ten lent is unworthy of further notice or comment. months, or probably a year ago, while in my 2. He sold Booth's horse and buggy several employ, and that he considered Baltimore his ays before the assassination, at the horse mar- home, and usually spent the summer months, et or at a livery stable. (Burroughs'.) The during the vacation of the theater, there, chiefly ame witness says he prepared them for sale, in crabbing and fishing. He was a great fisher nd went with Spangler, and that Gifford sent and crabber. I know nothing positive of my hem to make the sale. And Gifford says he own knowledge as to that. I only heard that. eceived, and J. R. Ford receipted for the money, and we used to plague him about it. Q. [Exhibiting to witness the coil of rope A. No, sir. Spangler said it would be found in a carpet-sack at the house where Spang- nice place to sleep in after the partition was ler took his meals.] Look at that rope, and down. That is all I recollect. see whether or not it might be used for any such purpose, and in what way. A. I suppose that could be used as a crab line, though it is rather short for that purpose. I have seen some as short used. I have read that the length of this is eighty feet, but I do not know from its appearance. Q. This is such a rope as you have seen used by amateurs in that sport? A. Yes, sir; I have seen such ropes. I frequently go fishing in the summer. Judge Advocate omitted to ask his witnes (Jake Ritterspack) as to this conversation, that it rests on the evidence of "Peanuts only. I do not think it goes a great way to ward establishing Spangler's connection with the conspiracy, or calls for special comment But I will present a set-off to this exhibition of ill feeling toward the President by Spangler, at being called away from his work on the stap to do an extra job in fixing the box, by his equally strong exhibition of good feeling, when as the President entered the theater, he clapped his hands and stamped his feet, and seemed as pleased as anybody to see the Pres ident come in." (James.) While it is unquestionably true that, so far as the evidence goes, Spangler may have got this rope for some purpose other than that suggested, it is also true that there are many other uses for which we can more readily 5. Burroughs further says, between five and imagine he got it than for the assassination six o'clock Friday evening, Booth came with plot. In the devilish scheme of that conspiracy his horse to the stable and called for Spangler I can imagine no use for a rope eighty feet and wanted a halter. That Spangler sent long. It could not have been provided for Ritterspack up stairs for one; that Maddo: lariats, for there was then no grass; nor for halters, for it would make a half score. If, however, it had been provided for any purpose connected with the conspiracy, it would have been kept at the theater, or the stable, and not off at a remote boarding house. It is easier to imagine him frugal enough to provide for his home, in Baltimore, a clothes line or a bed cord, than foolish enough to provide for the assassin's scheme an article so unnecessary as an eighty-foot rope. My only embarrassment in this point of the case arises from a failure to show that he fairly got title to the rope; but in this embarrassment I find consolation in reflecting that I am not called on to show what he meant to do with the shirt collar and the letter paper-which would have been a much more difficult task. 4. Two boxes had always been thrown into one when the President came to the theater on several former occasions during the season. (H. Clay Ford). Except while taking out the partition, Spangler was not in the box as it was being prepared and decorated. (H. Clay Ford). But Burroughs says: was there with them, and Spangler wanted to take the bridle and saddle off, but Booth would not let him, but that he (Spangler) did afterward take them off. The fact that Booth wanted the saddle and bridle left on, and Spangler wanted to take them off, and did subsequently de it, indicates that Spangler had, up to that time no intimation of Booth's need of the horse that night. 6. I have no doubt that the actual and the apparent preparations in and about the Pres ident's box for the assassination, more than all other circumstances combined, led the Govern ment to arrest Spangler and put him on tris. as a conspirator. They were sufficient to direct suspicion against him and to justify his arrest for in them they appeared to the casual observer the hand of a mechanic in aid of Booth's plan. But the evidence has wholly cleared th defendant of that suspicion. These actual and apparent preparations were: 1. A quarter of an inch hole bored through the door of box 7, which was the closed does when the two boxes, 7 and 8, were thrown int one for the President's party. This hole was bored with a gimlet, and enlarged on the outA. Harry Ford told me to go in with Spang-side with a penknife. (Plant, Ferguson, Olin. ler and take out the partition of the box, as the President and General Grant were coming there. I then went after Spangler. Q. What was he doing? Q. Do you remember whether, while Spangler was doing that, he said anything in regard to the President? A. He made remarks and laughed. A. He said, "Damn the President and General Grant." Q. While damning the President, or after damning him, did he say anything else? A. I said to him, "What are you damning the man for a man that has never done any harm to you?" He said he ought to be cursed when he got so many men killed. I stayed there until they took the partition out, and sat down in the box. Q. Did you observe what else they did in the box? A gimlet was found in Booth's room, after 2. The hole in the plastering, two by thr |