30th, as near as I can get at it, I saw the I can not be sure whether it was the 20th or 22d that I saw him. I do not think it 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. I was over at his brother's place several times during that period. I used to go there for marketing stuff to take to the city; and I used to go right in the field and get it. It was only on those occasions that I saw him on his brother's place, and coming over. CHARLES B. HALL. For the Defense.-June 2 By MR. EWING. seen the prisoner, Samuel Arnold, there; he was a clerk-chief-clerk, I believe-in the same establishment. He came there on a of March or the 1st of April, and remained Sunday morning, some time in the latter part there about two weeks, up to the time of his arrest. I saw him every day during that time. MINNIE POLE. For the Defense.-June 7. I reside in Baltimore. I am acquainted with the prisoner, Samuel Arnold. I saw him in that city on the 20th, 27th and 28th of April. On the 20th, I saw him in an omnibus, going to Hookstown; and on the 28th, I saw him at our house on his way to Baltimore. I have not seen him since, until 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 staid 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. Heretofore, 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. 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 admissible in evidence, it was now competent to prove its contents by parol. It was a 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 The JUDGE ADVOCATE. We have established that intimacy clearly in their associa tion in Washington. We are simply follow ing 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 contents of the letter; we offer the fact of their correspondence with each other. The Court sustained the objection. 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 Colonel TOMPKINS. Besides, it is very accurately published in the morning papers. 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 sug counsel 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 be, I think, not only the first one which has the Court, and can object to any thing that been set in the military service, but the first is incorrect, when they come into Court, if in the civil service. I never, in my whole they find any inaccuracies. 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 accuerror, 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 Court 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 but trusted simply to the reporters for achave not yet been furnished with the last of curacy, it might go very far to shake the yesterday's proceedings, nor has that portion confidence of the country in the accuracy of been published in the paper. these reports, and would certainly leave an opening for criticism. General FoSTER. The PRESIDENT. I should think a detention of one day would be ample. 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, after hearing the opinion of the Judge Advocate General, to change my first impression on the subject, and I will vote against the proposition, though I thought favorably of it at first. The motion was then withdrawn, and the record was read and approved. Thursday, 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, that he had seen McCullough at Booth's room in the National Hotel on the 2d day of April last. It Assistant Judge Advocate BINGHAM objected to the introduction of the paper. 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 Weichmann which was not true. Mr. Weichmann had sworn to certain statements which were contradicted in this sworn affidavit of Mr. McCullough. If he was mistaken in such small matters, might he not also be mistaken in the greater matter of the guilt or innocence of some of the accused. 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 the Court an authority on this point, as it was raised so often, and might be again; and he wished the authority borne in mind, namely: relevant to the issue. But if any opponent witness be asked questions on cross-examination which are not relevant to the issuewhich, as we shall hereafter see, may be done, (p. 146)—the answer must be taken, 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." (Ros coe's Criminal Evidence, p. 87.) The Court sustained the objection. By order of the Secretary of War. Mr. EWING, with the consent of the Judge Advocate, offered as evidence of the same validity, as if the same fact were testified to by Mr. John McCullough, the actor, on the stand, the following telegraphic dispatch: MONTREAL, June 2, 1865. "Irrelevant questions will not be allowed 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. JOHN MCCULLOUGH. The JUDGE ADVOCATE offered in evidence, in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. And if the witness 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. Assistant Judge Advocate BINGHAM stated that the same position was sustained by Roscoe's Criminal Evidence, p. 87, from which he read the following extract: [See Appendix, page 419.) The JUDGE ADVOCATE also offered in evidence, for the prosecution, General Orders "Evidence to contradict the opponent wit- No. 100, Adjutant-General's Office, Washingnesses.-This may always be given on poiston, April 24, 1863, containing "Instructions A. Yes, sir. for the government of the armies of the Abraham Lincoln, on the 15th of April, [See Appendix, page 410.] June 12, 1865. Assistant Judge Advocate BINGHAM offered in evidence a certified copy, under the seal of the Department of State, of the oath of office of Andrew Johnson, as President of the United States, before the Chief-Justice, on the 15th day of April, 1865. Also a duly certified copy of the resoluAssistant Judge Advocate BINGHAM offered tion of the Senate, dated March 5, 1861, conin evidence certified copies of the journals senting to the appointment, and advising the of the joint sessions of the Senate and the same, of William H. Seward as Secretary of House of Representatives on the 2d Wednes- State of the United States; and, also, a duly day of February, 1861, and the 2d Wednes- certified copy of the commission of William day of February, 1865 (certified to be correct H. Seward as Secretary of State of the United copies by the Clerk of the House of Repre- States, dated March 5, 1861, signed by Abrasentatives, under the seal of that House,) ham Lincoln, President of the United States, showing that Abraham Lincoln and Hannibal and attested by J. S. Black, Secretary of Hamlin were elected President and Vice- State, under the seal of the United States. President of the United States, for the term of four years, commencing on the 4th day of March, 1861, and that Abraham Lincoln and Andrew Johnson were elected President and Vice-President of the United States, for the term of four years, commencing on the 4th day of March, 1865. [Votes for President and Vice-President of the United June 14, 1865. Mr. EWING. On behalf of Mr. Stone and myself, who are jointly counsel for Dr. Samuel A. Mudd, and who separately represent States for the constitutional term, commencing on the other of the defendants, I ask leave to say 4th day of March, 1861. Number of States. Number of Electoral Votes... John Bell, of Tennessee, for President.. Stephen A. Douglas, for President.. Hannibal Hamlin, for Vice-President... 33 303 180 72 39 12 180 72 39 12 Votes for President and Vice-President of the United States for the constitutional term, commencing on the 4th day of March, 1865. Certified to as being a correct extract from the Journal to the Court, that the arguments in defense of those of the prisoners we represent, can not be made in such manner as to give efficient aid to the Court in its investigation of the questions arising under the charge and specification preferred, unless the said charge and specification are relieved of ambiguity by an opening statement from the Judge Advocate, indicating the offense or offenses, for the commission of which he may claim those of the accused whom we represent should severally be convicted, and the laws creating such offense or offenses, and prescribing the penalties thereof. In support of this suggestion we submit the following rea sons: I There is but one charge, in form, against of the Senate of the United States of 13th February, lol, the accused; but, in fact, there seem to be BRIGADIER-GENERAL E. D. TOWNSEND. Recalled for the Prosecution. Q. Do you know the fact that Abraham Lincoln acted as President of the United States from and after the 4th of March, 1861, until the 15th of April, 1865, when he died? A. Yes, sir; I had frequent official inter'course with him as President of the United States during that time. Q. Do you know the fact that Hannibal Hamlin acted as Vice-President during the four years preceding the 4th day of March, 1865? four charges, each alleging the commission of a separate and distinct offense, as follows: 1. Maliciously, unlawfully, and in aid of the existing armed rebellion against the United States of America, combining, confederating, and conspiring to kill and murder, within the military department of Washington, and within the defenses of the city, Abraham Lincoln, late, and at the time of conspiring, President of the United States, and Commander-in-chief of the arury and navy thereof; Andrew Johnson, then VicePresident of the United States; William H. Seward, Secretary of State; and Ulysses S. Grant, Lieutenant-General of the army, etc. 2. In pursuance of said malicious, unlaw ful, and traitorous conspiracy, maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln, President, etc. 3. Maliciously, unlawfully, and traitor ously assaulting, with intent to kill and mur- may be claimed each should be convicted, as der, the said William H. Seward, Secretary well as to an indication of the code of laws of State, etc. by which the last three of the offenses as charged are defined, and their punishments provided. 4. Lying in wait with intent maliciously, unlawfully, and traitorously to kill and murder the said Andrew Johnson, then VicePresident of the United States, and Ulysses S. Grant, Lieutenant-General, etc. The offenses enumerated, as aforesaid, in the said charge, are separate and distinct, and we, therefore, ask that the Judge Advocate should state, in regard to those of the accused whom we represent, of which of said offenses, under the evidence, he claims they should each be convicted. books which treat upon it. As a professional gentleman of eminence, he is entirely familiar with the range of the authorities on that general subject. The pleadings proceed, after averring this conspiracy, (in which it is alleged all these prisoners participated,) to set forth clearly and specifically the part which it is believed and alleged each one of them took in the execution of that conspiracy. The JUDGE ADVOCATE. If the Court please, when I recall the character of the pleadings in this case, the complete distinctness of the charge and of the specification, I confess myself somewhat surprised at the appeal which is now made to the Government on behalf of the counsel for the prisoners. Certainly, if I were to go over the ground again, either orally or by writing, I could not make known to the counsel with more certainty, II. We further respectfully say we are not or with more appropriateness or terseness of advised of the law creating and defining language, than has been already employed in certain of said offenses, as the same are laid these pleadings, the precise offenses with in the said charge, and therefore ask that which the prisoners are charged, on which the Judge Advocate specify the law cre- they have been arraigned, in reference to ating said offenses, or the code or system of which the entire range of inquiry has been laws in which the same may be found, that directed, and upon which the judgment of we may be able to present the case of such this Court is finally asked. of the accused as we represent, in a manner The general allegation is a conspiracy; conducive to the ends of justice, and there- and certainly the gentleman would not ask fore more satisfactory to the Court. me to expound to him the law of conspirThe crime of murder-assault with intent acy, nor to bring from the library here the to kill and murder, conspiracy to murder, and conspiracy in aid of the rebellion-are well understood and accurately defined by the common or statute law, and for the commission of those crimes just and appropriate penalties have been prescribed; but no laws known to us define the crime of "traitorously" murdering, or of "traitorously" assaulting with intent to kill and murder, or of lying in wait "traitorously" to kill and murder. If the last-named offenses, designa- The investigation here has carefully folted and described in the charge, are created lowed the line of allegation. We have crimes by some code of laws unknown to us, sought, in every instance, to show, as far as and penalties are prescribed for their com- the testimony would enable the Government mission by such code, it is respectfully sub- to do, that these parties, in the execution of mitted that to advise us of what that code is, before we are called upon to present our arguments, could certainly not defeat, and Now, it can not be possible, in view of might materially promote the ends of justice. these allegations, and in view of the proofs III. We further respectfully state, that the which have been sifted again and again, in Constitution of the United States provides the presence of the gentleman and those asthat in all criminal prosecutions the accused sociated with him, that he can have any shall be entitled to be informed of the na-doubt, or can feel any embarrassment as to ture and cause of the accusations against the precise measure and manner of criminthem. That several of the offenses charged ality which is charged upon these parties, are, if they are crimes defined by the Consti- and upon which the judgment of this Court tution or the laws, offenses in the trial of is invoked. They are all alleged to have which rules of evidence are applicable, dif- participated in the general conspiracy, and in ferent in important respects from the general the execution of that conspiracy, so far as rules of criminal evidence. And the accused the assassination of the President is conhave the right now (as they have had the cerned; and then the particular parts which right at all prior stages of this trial) to each one performed therein afterward, either kuow for which of the offenses each is sev-in execution or in the attempt to execute, erally held, so that counsel and the Court are set forth. It is for the Court to demay know what part of the evidence pre-termine how far the proof sustains these sented against all is applicable to the cases allegations; but it can not be that the genof the accused severally. And that the con- tleman is left with any doubt to embarrass stitutional guaranty above referred to, in our him as to the precise ground on which the judgment, entitles the accused to such desig- judgment of this Court is asked in reference nation of the specific charges on which it to each of these parties. the conspiracy, performed precisely the acts which it was charged they had performed. |