OSCAR HEINRICHS.

Mr. EWING. I move that the cipher letter introduced in evidence, June 5th, and ite

For the accused, Mary E. Surratt.-May 30. translation, be rejected as testimony, and that

Examined by MR. AIKEN.

I served as engineer officer on the staff of General Edward Johnson, and on the staff of other general officers of the Confederate States army.

I am acquainted with Henry Von Steinacker; he was detailed to me as draftsman shortly after General Johnson took command of my divison, and I employed him as such. He had neither the rank nor the pay of an engineer officer.

In

it be so entered upon the record. My reason is a twofold one. In the first place, I really believe the letter to be fictitious, and to bear upon its face the evidence that it is so. the second place, it is testimony that is wholly inadmissible under the plainest rules of evidence. It is not signed; the handwriting was not proved; it was in cipher; it was not shown at all that it was traced to anybody proved or charged to be connected with this conspiracy, or that it was in the possession of anybody shown or charged to be connected I am not acquainted with J. Wilkes Booth, with this conspiracy. The rule in regard to the actor. I never saw a person calling him- declarations in cases of conspiracy is, that self by that name in our camp; nor did any they may be admitted when they are declarasecret meeting of officers ever, to my knowl-tions of one of the conspirators. This is not edge, take place in that camp, where plans for the assassination of President Lincoln were discussed.

H. K. DOUGLAS.

shown to be the declaration of one of the conspirators; and when the declarations are those of a conspirator, they must accompany some act of the conspiracy, being not merely a declaration of what had been done, or was going to be done, but some declaration con

For the accused, Mary E. Surratt.-May 30. nected with an act done in furtherance of the

Examined by MR. AIKEN.

I have held several commissions in the Confederate States service; my last was that of Major and Assistant Adjutant-General. During the last campaign I served on the staff of six general offiers-Generals Edward Johnson, Early, Gordon, Pegram, Walker, and Ramsey.

I know a man named Von Steinacker; he was in the Second Virginia Infantry, the Stonewall Brigade. At the battle of Gettysburg I was wounded and taken prisoner, and remained prisoner for nine months. I did not see Steinacker in camp after I returned to duty, but I got a letter from him.

common design. The rule is very succinctly stated in Benet on Military Law and CourtsMartial, page 289:

"In like manner, consultations in furtherance of a conspiracy are receivable in evidence, as also letters, or drafts of answers to letters, and other papers found in the possession of co-conspirators, and which the jury may not unreasonably conclude were written in prosecution of a common purpose, to which the prisoner was a party. For the same reason, declarations or writings explanatory of the nature of a common object, in which the prisoner is engaged, together with others, are receivable in evidence, provided they accompany acts done in the prosecution of such an object, arising naturally out of these acts, and not being in the nature of a subse quent statement or confession of them. But where words or writings are not acts in themI wish to say of the officers of that brigade, selves, nor part of the res gesta, but a mere rethat their integrity as men, and their gallation or narrative of some part of the translantry as soldiers, would forbid them from action, or as to the share which other persons being implicated in any such plot as the as- have had in the execution of a common desassination of Mr. Lincoln; and in their be-sign, the evidence is not within the principle half I desire to say, that I do not believe they above mentioned; it altogether depends on knew any thing about it, or in the least de- the credit of the narrator, who is not before gree sympathized with so unrighteous an

I do not know of any secret meeting being held in our camp for the discussion of plans for the assassination of the President of the United States.

act.

Steinacker acknowledged to me, on several occasions, that he was a deserter from the Northern army. I have never heard of the existence of any secret treasonable societies, organized for the assassination of the President of the United States. I never was a member of the Knights of the Golden Circle or Sons of Liberty, nor do I know of any of the General's staff being connected with that organization. I never heard it declared in Richmond that President Lincoln ought to be assassinated.

the court, and therefore it can not be received."

In this case, it is a declaration not only of some person who is not shown to be connected with the conspiracy, but it is a declaration of some person whose existence nobody knows any thing of-a nameless man. The letter is as completely unconnected with the subject of investigation as the loosest newspaper paragraph that could be picked up anywhere.

Assistant Judge Advocate BINGHAM. If the Court please, there is a great deal in what the gentleman says that exactly states the law of conspiracy; but there is one thing I beg him to notice, that while that limitation which be

DISCUSSION ON THE MOTION TO REJECT CIPHER LETTER.

67

has named obtains in regard to third persons, there are two principles of the law touching connection. Allow me to say one other word in this conspiracy which are just about as old as the of law that draw very harshly on conspiraThere crime itself, and as old as the common law, tors that are engaged in crime. It may seem are, I know, some rules which itself is the growth of centuries- very hard that a man is to be affected in the namely, that every declaration made, whether remotest degree by a letter written by anit is in the formation of a conspiracy, in the other who is not upon his trial, or a letter prosecution of a conspiracy, before it is shown that has never been delivered, which could to have been organized, or after it is shown only speak from the time of its delivery; to be completed, is always evidence against and yet the gentleman knows very well that the party himself. ter written and never delivered is admissible upon principle it has been settled that a letupon the trial of conspirators.

There is an allegation in the charge and specification that this conspiracy was entered into with the parties named, and with others unknown, which is also a mode of proceedMr. EWING. Written by a co-conspirator. ing known to the administration of justice course. Assistant Judge Advocate BINGHAM. Of wherever the common law obtains. There is a co-conspirator is patent on its face, and But the fact that it was written by a rule in connection with this that can not be gathered from the other facts in proof in the challenged, and that is that the declarations case. of parties who are neither indicted nor on unknown conspirator. Suppose it had been The point about it is that he is an trial, are admissible in the trial of those who found in possession of Booth, addressed to are indicted and upon trial touching the con- him through the post-office, instead of being spiracy. In the first place, you find it proved, sent by hand, as the cipher letter shows they beyond any question of doubt, that Booth, must do, because the detectives are on their during the month of October, 1864, was in track; suppose it had been found in the posCanada, plotting this assassination with the session of Booth, will any man say that it declared agents of this revolt. You find that would not be admissible in evidence against about the 14th of November, 1864, after he him and everybody else who conspired with had so plotted this assassination with those who had weighed him out the price of blood, he is on his way to Washington City for the purpose of hiring his assistants; he is in the City of New York; he is in conversation with one of his co-conspirators, and, in my judgment, with one of them who is now within the hearing of my voice.

him in this infernal plot? What difference does it make that it had not reached him, or the other hired assassin, that was on the track of Sherman, to creep into his tent and murder him, as they crept into the tent of the Commander-in-chief of your army and murdered him. I say it is evidence.

In that conversation they disclosed the fact sire to submit a word in support of the moMr. Cox. If the Court will allow me, I dethat they are conspirators, as detailed by the tion made by General Ewing. When it was witness who was present, Mrs. Hudspeth. announced that a cipher letter was about to Upon one of them the lot has fallen to go to be offered in evidence, the counsel for the deWashington, to carry out the conspiracy, to fense took it for granted that it belonged to hire the assassins to go to Washington to that general class of evidence relating to the strike the murderous blow in aid of this re- machinations of the rebel agents in Canada, bellion; and what of the other? The other which had been generally admitted here has been ordered, according to the testimony, without objection. The counsel for the deto go to Newbern, North Carolina-Newbern, fense have had no objection to the exposure which became the doomed city afterward of those machinations; their only concern among these conspirators for the importa- has been to show that their clients were not tion of pestilence. After the introduction of involved in them. The whole of the evidence proof of this sort against these unknown of this description of a secret character hereconspirators, who are numbered by fifties tofore has been evidence relating to the conand hundreds, as Booth himself testified trivances and machinations of the rebel when he was trying to hire with his money agents in Canada, either on their own rea man who could not be hired to do murder, sponsibility, or in connection with the authorMr. Chester-after such facts as these are ities in Richmond. Therefore, no objection proved, in the very vicinity of Newbern this was made to the introduction of that eviinfernal thing is found floating as a waif on dence; nor was it perceived, until the letter the waters, bearing witness against these was read before the Court, that it purported villains. Although you can not prove the to come from somebody in immediate con writer of it, I say it is admissible in evidence. nection with the act of assassination itself. It is alleged that there are conspirators here Therefore the counsel were taken by surprise. unknown. There are facts here to prove and allowed the letter to be read to the Court that one of them was to go to Newbern. without objection, without even inspecting it, The letter is found in the vicinity of New- as they had a right to do, if they desired to bern, in North Carolina, at the dock in submit objections to its introduction as eviMorehead City. The foundation has been dence. laid for the introduction of it.

The rule stated by the learned Judge Ad

vocate is undoubtedly true, in general, that the work of conspiracy was to be done that the declarations of conspirators are admissi very night, Friday; yet this letter assumes ble in evidence against their co-conspirators; that he had done the work before, and was but that is subject to this limitation, that the to get there "yesterday," Friday, in Balticonspiracy must first be established between more. Every thing about it is suspicious. the author of the declaration, whether oral That, however, is a matter of argument to or written, and the party accused. That con- the Court, as a question of evidence, when spiracy being first proved by evidence aliunde, it is before the Court as evidence. In support by other proof than the declaration itself, of the motion of my learned friend, I submit then the declaration may be offered in evi- that the letter was read and admitted in dence to show the scope and design of the evidence by surprise; it is not legitimate eviconspiracy; and if it had been established dence, and therefore should be so entered that this letter emanated from somebody be- upon the record. tween whom and any one of the accused the Assistant Judge Advocate BINGHAM. I conspiracy had been established, unquestion- have only to say that the motion of the ably it would have been evidence against the learned counsel will come more fitly when he accused, supposing it to be made in the pros- makes his final argument. It is competent ecution of the conspiracy. But there has not for him to say then to the Court, "You are been a particle of proof produced to the not entitled to consider this evidence;" but I Court showing that the letter did emanate either from Booth, or any one of his associates. The logic of my learned friend on the other side seems to be this: It is sufficiently established, at least by prima facie evidence before the Court, that Booth was engaged in a conspiracy with some unknown persons; this letter comes from an unknown person; ergo, it is a letter from somebody connected with Booth in this conspiracy.

Assistant Judge Advocate BINGHAM. Not all the logic.

object to commencing the argument of the case in the middle of the trial, and asking the Court to decide a part of the case at one time, and another part of it at another. That is a new system of practice.

In regard to the remarks of my learned friend who has just spoken, his tongue certainly tripped, and he forgot himself, when he said that, in cases of conspiracy, written evidence could not be admitted without proving the handwriting. I asked him, and challenged him, to produce a single authority Mr. Cox. But, as far as it goes, it seems to that showed any such limitation, where a be the logic of the other side. He says the paper was found relating to the conspiracy, charge is that these accused were engaged in no matter who wrote it. Will the gentleman a conspiracy with somebody unknown; this say here that because we did not prove who letter comes from somebody unknown; there- wrote the cipher that was found in Booth's fore it is admissible in evidence. That is possession, which accords exactly with the about the substance of it. I submit to the cipher found in Davis's or Benjamin's possesCourt that this is chop-logic. The rule of sion at Richmond, it is not evidence? law is that the author of a declaration must no matter who wrote it; he had it, and let first be shown, and when a letter is produced him account for his possession of it, and let here, and read in evidence, it must be first him account for the uses he was making of shown whose the handwriting is; that it is it. This letter was found on the premises really the production of somebody whose under the control and occupied by the enemy, declarations, oral or written, are evidence who were engaged in this conspiracy. The against the accused; and until that is proved gentleman said that "Pet" is referred to in the letter is clearly inadmissible. the letter. He is, and it is proved that "Pet"

It is

If the Court will look at the face of the is the name by which Booth was known letter, although that is a matter for argu- among his co-conspirators in Canada; it is so ment, in case it is fairly before the Court as proved by Conover. How would Conover evidence, I think the Court will perceive know any thing about the contents of this that it does bear on its very face the marks letter? Who has proved that he was in of fabrication. The letter is picked out of North Carolina at the time of the flight? the water at Morehead City, no more blurred, The letter is dated Washington, April 15th, I think, than any paper on this table. It which is the day after the murder, and the looks as if it had been written and dropped day of the death of the President of the in the water immediately before it was found, United States. It does not follow, by any for the very purpose of being picked up means, that it was written in Washington; by the Government agents, to be used as but that is what is on its face. Now, let us evidence. It declares that, "Pet" (who, I see whether there is any thing of this sup suppose, is intended to mean Booth) "has posed contradiction on the face of it. done his work well." "We had a large "I am happy to inform you that Pet has meeting last night" (the Friday night when done his work well. He is safe, and Old these conspirators were flying from the city Abe is in hell."

for their lives.) "I was in Baltimore yester- Is there any contradiction here in dates, day." That was Friday. "Pet had not got or time, or fact? Did not Abraham Lincoln there." Of course he had not got there when die on the morning of the 15th of April, and

DISCUSSION ON THE MOTION TO REJECT CIPHER LETTER.

69

is not that in proof? The conclusions of before the day of the murder. "Pet had this miserable monster, of course, are not not got there yet." Where? At midnight statements of facts; but, monster as he is, he yesterday, under cover of the same darkness knows enough to state the fact, which he which he sought when he inflicted the mordoes state, that "Pet has done his work tal wound upon Abraham Lincoln. If he well," after their method of well-doing, and had got the benefit of the trains, everybody that his victim, Abraham Lincoln, is dead. knew he would have been there "yesterday." That is the fact that he states; there is no Where is the contradiction? contradiction there. Now, sir, all eyes are on you." Who? "You." "You must bring . Sherman. Grant is in the hands of Old Gray ere this." Who in America knew that, except a man in this conspiracy, on the 15th of April?

I submit to the Court that this is no time to decide the effect of this letter upon the case or upon the Court.

Mr. Cox. The argument of the learned counsel for the Government is, that the handwriting of a letter need not be proved

Mr. Cox. We do not know that it was when it is found in the custody of parties written on that day.

implicated in the conspiracy. That I may Assistant Judge Advocate BINGHAM. We admit, but that assumes the whole question. are taking things as we find them. "Red The letter was not found in the custody of Shoes showed lack of nerve in Seward's any person. It was found floating upon the case, but fell back in good order." Who knew in what sort of order he fell back, except a co-conspirator? We know who Red Shoes was. He did fall back.

Mr. Cox. When was the letter found? Assistant Judge Advocate BINGHAM. On the second day of May.

Mr. Cox. Three weeks after.

water, and non constat that the letter may not have been written the very day when it was found, and a few minutes before it was found; and written by somebody who had possessed himself of sufficient knowledge of the facts charged against the conspirators to enable him to fabricate a letter specious on its face, and appearing to have some bearing on the conspiracy itself.

Assistant Judge Advocate BINGHAM. Yes; but the gentleman assumes in his criticism Assistant Judge Advocate BINGHAM. Parthat it bears date the day it purports to don me for saying to the gentleman, that have been written. "Johnson must come. while his statement is correctly made as reOld Crook has him in charge." Who knew gards what I said, I did also say, in that on the 15th of April who had him in charge? connection, that we must lay a foundation, "Mind well that brother's oath." Who and show that it had been in the custody knew then about the oath? It is all abund- of one of the conspirators. I think we have antly proved here, however. "And you will done it by showing that "Pet" was the have no difficulty. All will be safe, and en-name of one of the party; by showing that joy the fruit of our labors." That is, the the object of the conspiracy, as narrated in price. "We had a large meeting last night. the letter, was the object agreed upon; by All were bent on carrying out the programme showing that that was not a matter of to the letter." The gentleman says there is notoriety, nor a matter known to anybody a contradiction. Wherefore? "The rails except the conspirators themselves on the are laid for safe exit. Old always be- day of its date; and by showing that all the hind-missed the pop at City Point. I say evidence in this case, so far as this letter again, the lives of our brave officers, and can be understood to-day, corroborates the the life of the South, depend on carrying fact which I assert, that the writer of the this programme into effect." Which was the letter, on the 15th day of April, was a party original design. "Number 2 will give you to this conspiracy-a fact clearly enough this. When you write sign no real name. shown, I think, to hang him if he were I was in Baltimore yesterday. Pet had not found with that paper in his pocket, though got there yet." The gentleman says there no man knew his name, and no man ever is a contradiction. Wherefore? Was not testified about the writer, unless he could "yesterday" until midnight at least of the explain how he came by it.

14th of April? "I was in Baltimore yester

day." Assuming that he was in Washing

The Commission overruled the motion of

ton on the 15th, he was in Baltimore the day Mr. Ewing.

TESTIMONY

RELATING TO JOHN WILKES BOOTH, AND CIRCUMSTANCES ATTENDING THE ASSASSINATION.

ROBERT R. JONES.

For the Prosecution.-May 13.

I am a clerk at the Kirkwood House in this city. The leaf exhibited to the Commission is from the register of the Kirkwood House. It contains the name of G. A. Atzerodt, Charles County.

was quite a large one, such as cavalry officers wear, and was loaded and capped.

WILLIAM A. BROWNING.

For the Prosecution.—May 16.

I am the private secretary of President Johnson. Between 4 and 5 o'clock in the [The leaf from the hotel register was offered in evidence.] afternoon of the 14th of April last, I left the It appears from the register that Atzerodt Vice-President's room in the Capitol, and took room No. 126 on the morning of the went to the Kirkwood House, where we 14th of April last, I think before 8 o'clock both boarded. On going to the office of the in the morning. I was not present when hotel, as was my custom, I noticed a card in his name was registered, and did not see my box, which was adjoining that of Mr. him until between 12 and 1 in the day. Johnson's, and Mr. Jones, the clerk, handed recognize Atzerodt among the accused. That is the man, I think.

[The witness here pointed to the accused, G. A. Atze

rodt.]

it to me. It was a very common mistake in the office to put cards intended for me into their way into mine; the boxes being tothe Vice-President's box, and his would find gether.

[A card was here handed to the witness.]

I recognize this as the card found in my box. The following is written upon it in pencil:

Don't wish to disturb you; are you at home? J. WILKES BOOTH.

[The card was offered in evidence.]

I had known J. Wilkes Booth when he

I went to the room occupied by Atzerodt after it had been opened by Mr. Lee, on the night of the 15th of April, and I saw all the articles that were found there. I can not identify the knife, though it was similar to the one just shown me. It was between the sheet and the mattress. The bed had not been occupied on the night of the 14th, nor had the chambermaid been able to get into the room the next day. A young man spoke to Atzerodt when I saw him standing at the office counter. I do not know his name Atzerodt before that asked me if any one had inquired for him within a short time. When the card was handed to me, I reFrom the book it appears that Atzerodt paid marked to the clerk, "It is from Booth; is one day in advance. I had never seen him he playing here?" I thought perhaps he might have called upon me, having known me; but when his name was connected with the assassination, I looked upon it differently.

in the hotel before.

During that day I gave a card of J. Wilkes Booth to Colonel Browning, Mr. Johnson's secretary. It was put in his box. I am not positive that I received it from J. Wilkes Booth, although I may have done so.

was playing in Nashville, Tenn.; I met him there several times; that was the only acquaintance I had with him.

Cross-examined by MR. DOSTER

The Vice-President was, I believe, at the Capitol the greater part of the forenoon of that day. He was at dinner at the Kirkwood at 5 o'clock, and I do not think he was out afterward. He was in his room for