¡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., WILLIAM MOPHAIL. 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. DEAR JOHN: Was business so important that you could not remain in Balto. till I Baw 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 I became acquainted with his handwriting he had gone out with you, and had not re- from having a confession of his placed in turned. I concluded, therefore, he had gone my hands. It was a paper purporting to with you. How inconsiderate you have been! state all he knew in regard to this affair. It When I left you, you stated we would not was written in the back room of Marshal meet in a month or so. Therefore, I made James McPhail's office, No. 4 Fayette Street, application for employment, an answer to Baltimore. The paper was handed by me to which I shall receive during the week. I the Marshal, and I was informed that the told my parents I had ceased with you. officers delivered it to the Secretary of War Can 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 connecat 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. 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 Do not in anger peruse this. Weigh all I never allowed to the prosecution. It would have said, and, as a rational man and a friend, do more than that: it would allow them to you can not censure or upbraid my con- do what the accused is not allowed on his duct. I sincerely trust this, nor aught else own behalf on the point of character that that shall or may occur, will ever be an is, to show acts wholly unconnected with the obstacle to obliterate our former friendship crimes with which he is charged, from which and attachment. Write me to Balto., as I his previous character may be inferred. expect to be in about Wednesday or Thurs- The JUDGE ADVOCATE. I think the testiday, 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. mony 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 au quence, 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. Die him by the prosecution, in order to show loyalty to the Government was its sole in- that intent. The cases are very numerous. epiration. 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 alightest 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. 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. Mr. EWING. Can the learned Judge Ad- Assistant Judge Advocate BINGHAM. I unvocate produce authority to sustain his posi-derstand the gentleman, but I assert that the tion? words there used, "in aid of the existing armed Assistant Judge Advocate BINGHAM. There rebellion against the United States of Ameris abundance of authority to sustain the ica," are words of intent; the formality of an position. In Roscoe there is express au- indictment is simply departed from. If the thority. The book is not here now, but as charge had followed the common-law form, it the gentleman calls for authority, I will state would have read, "With intent to aid the 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 con all 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 traitor which 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 armed rebellion against the United States ?" There is the specification, and I should like to know how an intent could be laid any 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: mitted some other crime, would prejudice his cause materially; and it is to avoid that result that this wholesome rule of law has been established. 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 "Evidence will not be admitted on the was not called upon to show here whether part of the prosecution to show the bad char- or not, a year or eighteen months before this acter of the accused, unless he has called alleged conspiracy was begun, he committed witnesses in support of his character, and the crime of having taken up arms against even then the prosecution can not examine his Government. He is not on trial for as to particular act." (Benét on Military that, and I think it is unjust to prejudic 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. I 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 "Knowledge and intent, when material, as to the intent to aid the rebellion; and must be shown by the prosecution." (Whar that evidence of intent would not be in the ton's American Criminal Law, p. 309, sec least aided by proof of service in the Con- 631.) federate 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. 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 admit 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 show no criminal acts, not part of the res gest 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. ered from the conduct of the party as shown in proof; and when the tendency of his aotions is direct and manifest, he must always be presumed to have designed the result when he acted." As to guilty knowledge, on the same page of the book, the author says: "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: Before any jury, or almost any body of "The same evidence is generally admissi men, proof that a person charged with one ble to prove intent as to show guilty knowerime, and on trial, had before that com-' edge." represented its standard in the councils. That is exactly why it is german. That is to say, other acts, although involving substantive crime, may be admitted. 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, 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. 1862. Cross-examined by MR. EWING. JAMES L. MCPHAIL. A defendant's conduct during the res gesta, as his manner at the time of passing the note, or his having passed by several Recalled for the Prosecution.-May 18. names, is also admissible for the same pur[Exhibiting the "Sam" letter to the witness.] pose; but the intent, the guilty knowledge, must be brought directly home to the deI think that letter is in the handwriting fendant; but in no case can evidence tend-of Samuel Arnold; the direction, "J. Wilkes ing to 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. For the Prosecution.-May 18. 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 Wharton goes on to say: "On the charge of sending a threatening letter, prior and subsequent letters from the person to the party threatening may be given in evidence, as explanatory of the meaning and intent of the particular letter upon which the indictment is framed." What do you say to that? there was either a twenty or a fifty-dollar note; I am not positive which. He read the letter, and remarked that he was flush of money, or something to that effect. After having read the letter, he handed it to me, and I read some half a dozen lines, possibly-not more. I did not understand it; it was very ambiguous in its language; and I handed it back to him, and asked him He remarked that somewhat it meant. Mr. EWING. I say it does not apply at all. Assistant 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 oc which he might also be indicted, and enter-curred. ing into this is a distinctive crime, for which I do not remember that I saw the signa the party may be also arraigned; but when ture to the letter; if I did, I do not rememhe 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, he 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. 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 For or 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.] 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. 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 remem. As I was coming into Baltimore on the ber my father coming to the desk where they 21st, I saw him in the coach going to Hooks- were placed, getting them, and taking them town. From the 21st to the 25th, I saw him to Baltimore. It was a large-sized pistol, every day, and he slept with me every night. something like the one just shown me. 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 The accused, Samuel Arnold, is my brother. he left, about 8 o'clock. I saw him next on I generally reside at my father's in Balti Friday, when I came in from the country to I saw my brother on the 30th and 31st of March last; Thursday and Friday. my father's; my brother was there to supOn the Friday morning I gave him a letter, per. He was at home at my father's on that night. I did not sleep with him; my reference to his application for a situation, which came for him from Mr. Wharton, in brother did; and I slept in the same room. 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. For the Defense.-May 31. By ASSISTANT Judge Advocate BINGHAM. My brother had made application for employment to Mr. Wharton, but I do not know JACOB SMITH. Cross-examined by ASSISTANT JUDGE ADVOCATE the date. For the Defense.-May 31 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 |