A. I was through baggage master between Washington and New York.
Q. When did you leave Washington?

A. I left Washington on Saturday morning the 15th.

Q. At what hour.

A. At 7.30.

Q. Where were you delayed?

A. At the Relay.

Q. How long?

A. That I am not able to state exactly, but we arrived in Baltimore at 2.40. Q. When did you leave?

A. We left the President's street depot at 6.40.

Q. Do you recollect when you

reached New York?

A. About 5 o'clock. It might have been a few minutes after.

Q. Sunday morning?

A. Yes, sir.

Q. How long behind time were you?

A. It might have been a few minutes.

Q. What time should you have been in New York ?

A. At 5 in the evening.

Q. There was a difference then of twelve hours; you were twelve hours late; A. Yes, sir.

Mr. BRADLEY said he did not understand what this testimony was to rebut; and unless it was made to appear it was to rebut something they had offered, he would move to strike it out.

Mr. PIERREPONT said it would tend to show Surratt was not in Elmira on the 14th, if Dr. Bissell did say so.

Mr. BRADLEY said that if Dr. Bissell was the most unmitigated liar on earth this testimony was not rebuttal. It could not show that Surratt was not in Elmira on April 14th.

Mr. PIERREPONT said that he never heard that it was to be assumed that an alibi would be attempted to be proven; but when an alibi was attempted it was proper to prove that he was not at the place set up. There was a legal right to prove anything that went to contradict the alibi set up.

Mr. BRADLEY said he desired to read some authorities on the subject, and, while the books were being procured, the court at 12.15 took a recess until 12.45. Upon reassembling,

Mr. MERRICK moved to strike out the testimony just given by the witness John George, as also the testimony in regard to the telegrams, as such was not in reply to any part of the case made by the defence. In support of the motion, he said that as he understood it, this, and a good deal more evidence that had been given, was not in rebuttal, but was in regard to matters about which the government could have given testimony in the first instance, and was therefore cumulative and corroborative. As to the proof with regard to whether the various telegraph offices were in operation or not, he knew nothing that the defence had given in evidence to which it was a reply. It could not well be in reply to anything. except evidence relating to telegrams, and they had given no proof whatever in reference to such. If it was intended as preliminary evidence to support McMillan's testimony, which was to the effect that Surratt had telegraphed Booth from Elmira, it was not competent, for it should have been given in the examination in chief, and a part of the case in chief, being corroborative of the fact proved by the government themselves, or rather attempted to be proved, for he was not willing to acknowledge that what Dr. McMillan said was by any manner of means proved. They further attempted to show the time of the running of the trains from here to New York. What in the evidence of the defence did that rebut? What had the defence proved in regard to the running of these trains? Not one word. As the counsel intimated, and the intimation

conforms to his (Mr. Merrick's) conjecture, it was their purpose to show that Surratt was at,some time or other on that part of the road between this city and Montreal. If that was their purpose, then, again, would he say that it was not in reply and even if in one aspect it should appear to be, in another it was cumulative and corroborative, because they had attempted in their examination in chief to put him on the other end of that same route. Could the government in making out their case attempt, as they first said in their opening, they would, follow the prisoner from the place of the commission of the alleged offence to the place of his refuge; take him up at the route nearest the place of his refuge and attempt to prove his presence on that route, and then, after having got through with their testimony in chief, come down to the other end of the route and attempt to prove him at that point. When the case was opened the counsel for the prosecution stated that they would follow the prisoner from Washington city to his place of refuge, and from there across the ocean, through France and Italy to Egypt. They did in their proof attempt to follow him from Italy to Egypt. They proved him to be in Italy; they first attempted to prove him to be in Canada, and then attempted to prove him to be on the route in the United States from New York to Montreal. Having done that, could they leave the other part of the route from Washington to New York untouched until they came to their rebutting proof? He submitted that that question was too plain for argument.

But they said that the defence had proved an alibi; and that having proved an alibi-having proved that the prisoner was in a certain place at a certain time-they might in rebuttal of that prove that he was in any other place at that time. There were two answers to that. In the first place, in their opening they stated that they anticipated an alibi; and that they intended to introduce proof to meet the anticipated proof, by showing where he was. In the second place, where an alibi was proved by a prisoner charged with the commission of a crime, it was not in rebuttal to that alibi to prove that the prisoner was at the place at the time the crime was alleged to have been committed, or was anywhere else at the time of the alleged crime. It was not in reply, for the reason that the proof that he was in the place where the crime was committed at the time of its commission was essential to the proof of his guilt. Unless he was present when the crime was committed, he could not have committed the crime, whether it be murder or larceny. If it were a crime which it was necessary that a man should commit himself either by actual or constructive presence, the proof of guilt or constructive presence was essential proof in chief to establish the charge alleged in the indictment. Counsel for the prosecution felt and recognized this principle, for they had spent much time and much labor with bad instruments in attempting to prove that the prisoner was here. But they might say that even although they could not prove he was at the place of the crime, because his presence at such place, being essential in order to establish his guilt, must be given in the testimony in chief; yet, they might prove him anywhere else than where the defence proved him, because that would disprove the alibi. He would answer, that that would also disprove their case, and they could not disprove their own case. They might say they could not prove he was in Washington, because that proof was incumbent upon them in chief, but the defence having proved he was in Elmira, they could prove that he was in New York, which rebutted the proof of the defence that he was in Elmira. Therefore it was legitimate in rebuttal, but, unfortunately for them, it was also legitimately in defeat of the fact that he was here; whether he was in Elmira, New York, or elsewhere, at the time of the commission of this offence, he was in a position where he could not have participated, and where there could be no verdict of guilty on this indictment by any possible rule of law; whether the defence proved it or the government proved it, if the fact was proved it stood, and the acquittal followed

as an essential consequence. Mr. Merrick then cited the case of Rex vs. Hilditch, in 5th Carrington and Paine, in support of the views he had advanced; and also a decision of the late Judge Crawford, of the criminal court of the District of Columbia.

Mr. PIERREPONT said he did not intend to spend a great deal of time in arguing the general propositions of this case until the evidence was closed, as it was only when the evidence was in that they knew on what they were arguing. He had observed that there had been an attempt on the part of the defence from the commencement to draw them into a general discussion-at least it seemed so to him. He would repeat that it appeared to him that the only fit time for that was when the evidence was all in. For that reason he would confine himself to the question before the court, to wit: whether this evidence of the baggage-master was properly in. The counsel held that no evidence could be now given by the government which tended to confirm the original case. If he laid that down as a broad and universal proposition, and undertook to cite any English authority in support of it, he would only say in reply that there was no such thing in law, in reason, or common sense. It would indeed be a very nice proposition of law to be presented in a court of justice, that if the government had evidence which was otherwise legitimate, it would not be legitimate if it tended to confirm the original case.

There was always a great deal of evidence in rebuttal which did tend to confirm the original case, and to say that no such evidence, if otherwise legitimate, could come in for the reason stated, would be simply nonsensical.

There might be evidence offered in rebuttal which was illegitimate and which tended to confirm the original case. That evidence, of course, could not properly be received, but the question always was whether the evidence offered was legitimate evidence in rebuttal. The test of that, however, was whether it tended to confirm the original case. It might have a tendency in that direction and it might not, but the fact that it did had no bearing upon it one way or the other.

His learned friend had spoken of the time as though this affair were all confined to one single day. He stated that the government had proposed and did offer evidence to the effect that on the 14th, Surratt was in Washington, and now they could not offer any evidence to show that he was anywhere else on the 15th and 16th, for the reason, as he understood him, that they had offered evidence that he was in Washington on the 14th. He did not understand that proposition, and he did not believe his learned friend would hold to it as a sound one when he came to reflect upon it. The government had not offered any evidence in rebuttal to show that he was in Washington on the 14th, and did not propose to offer any. They had already abundance of proof on that point. The defence had undertaken to show that the prisoner was in Elmira on the 15th, and they were proposing to show that he was somewhere else on the 15th. They had never claimed that he was in Washington on the 15th. Their pur· pose in introducing this testimony was to show that he was not in Elmira on the 15th. Very swiftly after the evidence was in and after it was shown by this witness that this train was delayed, did the learned counsel see the bearing of it. His learned friend, (Mr. Bradley,) who had been talking to them quite eloquently before in relation to imaginary chains, began to discover that the iron chain was ready to close its links; and then he was startled. He would find those links would close, and that that chain would bind the prisoner from the hour he left Elmira until he came to Washington, and tie him again in Montreal, Burlington, and St. Albans. That is what the counsel was trying to get rid of. He never feared the imaginary chain, but he did not wish the links of this iron chain to close around the prisoner.

He would submit to the court that anything that tended to show that the prisoner was not in Elmira on the 15th, that was legitimate in itself was to be

considered as rebutting evidence, and proper to be given. The question as to whether it did or not tend to confirm the original case of the government had nothing whatever to do with it.

A word with regard to the telegrams. The counsel had repeatedly, since the commencement of the case, risen and insisted that the government must prove the prisoner to have been in Washington at the time of the commission of the crime. He had throughout treated this case as though it were the ordinary case of a few men who got together and murdered a farmer down here in the country for the purpose of stealing fifty dollars out of his chest. He fancied that when this case came to be presented and argued, the counsel would find it something widely different. The defence had undertaken to prove that this prisoner was in Elmira on the 13th, and, as they tried to show, was there for some purpose connected with rebel prisoners there confined; not only there on the 13th, where he in fact was, but there on the 14th, when he was not. If he (Mr. Pierrepont) did not demonstrate, when he came to review the evidence in the case as now in, not only that he was not in Elmira, but that he was in the city of Washington on the 14th, and nowhere else, he would pledge himself never to try another case as long as he lived.

Mr. BRADLEY said he would take that pledge.

The defence had offered evidence for the purpose of showing that he was in Elmira. Suppose he was there. Concede for the moment the fact that he was in Elmira; that he was one of the conspirators engaged in overthrowing this government, and in the fell pursuit of that plan; that he was in Elmira for the purpose of trying to release the Union prisoners, and as a part of the same damned scheme to enthrone treason and spread murder and anarchy over this land; could not they show the fact that he could communicate by telegraph between Elmira and Washington? That is what he offered that evidence for, and it was legitimate evidence.

The DISTRICT ATTORNEY said he was not prepared to conceive the proposi tion of law that offering to prove a relevant fact during the examination in chief precludes the proving of the fact, by way of rebutting testimony. He conceded the fact he was not permitted by rebutting testimony to offer a fact in evidence essential to the case, and which, therefore, should have been offered during the examination in chief. If the prosecution offered in evidence a fact relevant, but not essential, they might offer rebutting testimony, if necessary, to meet the case made by the defence. It was assumed by the learned counsel for the prisoner that it was essential to the prosecution to prove the presence of the prisoner in Washington on the 14th, when the murder was committed. That question he did not propose now to discuss. It was true the government did, as he understood, show conclusively, by thirteen witnesses, that the prisoner was present in the city of Washington on the 13th. Whether that was essential was an entirely different thing. That it was relevant and most important, a material fact, tending to show the co-operation of the prisoner in this conspiracy, with which he had been previously connected, and which resulted in the death of the President, there could be no question. His honor would observe that it was not now proposed to give any evidence in fact relating to what occurred on the 14th of April, 1865. The testimony offered was referring to what occurred subsequent to the assassination. The defence had offered evidence tending to show that the prisoner was in Elmira on the 15th of April, and had endeavored to show that, conceding, as the government did, he was there on the 13th, it was impossible for him to be here on the 14th, and impossible that he could have escaped from the city of Washington on the 15th. Surely, if it was essential to the prosecution, which he did not admit, to prove the presence of the prisoner in Washington on the 14th, it was no part of their original case to show where he was on the 15th, and evidence on that point in rebuttal was now proper.

Mr. BRADLEY, Sr., said he had listened with great respect to what fell from

his learned brothers on the other side, as he always did, in hopes of ascertaining what it was they were after. The government assumed to show that the prisoner at the bar was in Washington on the 14th of April, 1865. How far they had given any credible evidence sustaining that position was a question for the jury, and which he did not then mean to discuss. They undertook to show that he fled on the 15th. That was evidence in chief.

Mr. PIERREPONT said yes, but not essential.

Mr. BRADLEY remarked that the question was whether it was to become essential afterwards. They had attempted to show that he was here on the 14th participating in this transaction; that he fled on the 15th. They had offered evidence to show that he was in Montreal on the 18th; that he was at the Burlington depot on the night of the 17th, or morning of the 18th. The prosecution had therefore given in chief testimony of the very facts they now offered to prove. In reply to that the defence had offered testimony to show that, in point of fact, all this story was false; that the prisoner was not here on the night of the 14th; that he was, in point of fact, in Elmira on the night of the 14th; that he had not fled on the 15th; that he was in Elmira on the 15th. The learned counsel (Mr. Pierrepont) had said that the prisoner was there on a bad mission; and now upon the trial of the man for an alleged murder, he was to be put upon his trial, not for that, but for a conspiracy to overthrow the government. The proposition was a monstrous one, that shocked our sense of right and justice. The prisoner was there on trial for murder, or not on trial at all. When the government comes into this court seeking to take the life of a man upon false pretences, it was time for every honest man to speak out.

When the government had attempted to show in chief that the prisoner left here on the 15th, they had exhausted their proof; and they were bound now by every consideration of justice, by every rule of evidence, by everything which can bind a government to put the citizen on his guard against false accusations, to introduce their evidence in chief, and not to wait to introduce it in rebuttal of evidence offered by the defence to meet the case made in chief.

Mr. Bradley referred to the case already cited by Mr. Merrick, in which Judge Grier said it was infamous to renege, holding a trump back in their own hands in order to take the trick; and if it was so infamous at cards, how much more infamous must it be when used to take away the life of a man. He would have nothing to say in defence of the prisoner if he believed he was guilty; he would not touch him; would not look at him; would not speak for him or open his mouth in his defence. But he had no idea of having his life sacrificed because of imputed guilt. Counsel undertook to say that the prisoner was at Elmira in regard to rebel prisoners there, and what he was there for. The defence had endeavored to show, they had offered to show, how he came to be there, how long he was there, and what he did while he was there. At the instance of the prosecution all that evidence had been ruled out. And now was it for them to make that a handle of an accusation against him? Counsel had referred to the effort of his colleague (Mr. Merrick) to bring about a general battle, while Mr. Pierrepont was engaged in polite skirmishing. At the opening of this case the prisoner was denounced beforehand as the chief man in the assassination; and they denounced as a coward a defenceless man tied in chains, like a little boy pointing at a caged lion, and saying, "Roar away." Counsel had referred contemptuously to the remark of his colleague, Mr. Merrick, about the "magic chain," and to "the chain of iron." He then told counsel that he would have to forge more links, and counsel had so far failed to do it. Mr. Bradley remarked that if he was warm in what he said, he had a right to be so; he had a man's life in his hands not proved to be guilty, and he thought, by admission of counsel here, not guilty. When the counsel admitted that the prisoner was in Elmira on the 13th, he removed the tomahawk and scalping-knives and gave the prisoner a shield for his defence. He did not