2. The character of the evidence in support of them, and of the
witnesses by whom they are said to be proven. And,
3. Whether they are consistent with a reasonable theory by which
guilt is excluded.
We assume, of course, as a matter that does not require argument,
that she has committed no crime at all, even if these facts be
proved, unless there is the necessary express or implied criminal
intent, for guilty knowledge and guilty intent are the constituent
elements, the principles of all crime. The intent and malice, too,
in her case, must be express, for the facts proved against her,
taken in themselves, are entirely and perfectly innocent, and are
not such as give rise to a necessary implication of malice. This
will not be denied. Thus, when one commits a violent homicide, the
law will presume the requisite malice; but when one only delivers a
message, which is an innocent act in itself, the guilty knowledge,
malice, and intent, that are absolutely necessary to make it criminal,
must be expressly proven before any criminal consequences can attach
to it. And, to quote:--
"Knowledge and intent, when material, must be shown by the
prosecutor." (Wharton's American Criminal Law, section 631.)
The intent to do a criminal act as defined by Bouvier implies and
means a preconceived purpose and resolve and determination to commit
the crime alleged. To quote again:--
"But the intent or guilty knowledge must be brought directly home to
the defendant." (Wharton's American Criminal Law, 635)
"When an act, in itself indifferent, becomes criminal, if done with
a particular intent, then the intent must be proved and found," (3
Greenleaf, section 13.)
In the light of these principles, let us examine the evidence as it
affects Mrs. Surratt. 1. What are the acts she has done? The
specification against her, in the general charge, is as follows;--
"And in further prosecution of the said conspiracy, Mary E. Surratt
did, at Washington City, and within the military department and
military lines aforesaid, on or before the sixth day of March,
A.D. 1865, and on divers other days and times between that day and
the twentieth of April, A.D. 1865, receive and entertain, harbor
and conceal, aid and assist, the said John Wilkes Booth, David
E. Herold, Lewis Payne, John H. Surratt, Michael O'Laughlin, George
A. Atzerodt, Samuel Arnold, and their confederates, with knowledge
of the murderous and traitorous conspiracy aforesaid, and with
intent to aid, abet, and assist them in the execution thereof, and
in escaping from justice after the murder of the said Abraham
Lincoln, as aforesaid."
The first striking fact proved is her acquaintance with John Wilkes
Booth--that he was an occasional visitor at her house. From the
evidence, if it can be relied on, it distinctly appears that this
acquaintance commenced the latter part of January, in the vicinage
of three months only before the assassination of the President, and,
with slight interruptions, it was continued down to the day of the
assassination of the President. Whether he was first invited to the
house and introduced to the family by Weichmann, John H. Surratt, or
some other person, the evidence does not disclose. When asked by the
judge advocate, "Whom did he call to see," the witness, Weichmann,
responded, "He generally called for Mr. Surratt--John H. Surratt--
and, in the absence of John H. Surratt, he would call for
Mrs. Surratt."
Before calling the attention of the commission to the next evidence
of importance against Mrs. Surratt, we desire to refresh the
recollection of the court as to the time and manner, and by whom,
according to the testimony of Lloyd, the carbines were first brought
to his (Lloyd's) house.