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A. Yes, sir.
Q. Did 70a talk with the priest about Dr. McMillan within the last month? A. Once.
Q. Have yon talked with the priest Boucher about McMillan since McMillan came here to testify? A. Yes, sir; once.
Re-examined by Mr. Bradley:
Q. Yon have been asked about a quarrel between Boucher and McMillan. Do yon know what that was about?
A. The priest has never spoken to me about it. When McMillan practiced chicanery with Boucher I was there; but I do not know the canse, as the curate put him outside.
Q. When was that?
y. State whether the money that you took to Dr. McMillan was after this qnarrel about which you have been asked.
(Objected to by Mr. Pierrepont, as not being responsive to anything brought ont on cross-examination.
At 12.45 p. tn. the court took a recess for half an hour.
Mr. Bradley stated that the defence had five witnesses en route to Washington, who had been expected last night. They had evidently missed the railroad connections. They were material to the defence, and had they reached here the defence would have been able to close to-day. Mr. B. stated that the defence lad used every diligence to obtain their presence, and were in receipt of telegrams to the effect that they were on the way. They would be here without lionbt this evening or to-morrow morning, when the defence would be able to close the case.
Mr. Carrington said that under the circumstances, as it was alleged the evidence proposed to be offered was material to the defence, it would be improper io the government to interpose any objection to an adjournment at this time. It "as understood that they would close to-morrow morning with the testimony of those witnesses. At 1.55 p. m. the court took a recess until to-morrow morning at 10 o'clock.
Friday, July 19, 1867. The court met at 10 o'clock a. rn.
Mr. Bradley stated that of three witnesses from abroad who were expected today, two, instead of being here, had forwarded certified copies of the railroad timetables, in reference to which they were subpoenaed—which time-tables, eonosel for the prosecution having assented, he offered in evidence. Mr. Bradley stated that, by these time-tables, it appeared that- in April, 1865, the4rM passenger train of cars left Albany at 7 o'clock in the morning, and arrived at Syracuse at 1 20 p. m., making five hours and twenty minutes from Albany to Syracuse via New York Central railroad; that the train left Syracuse at 1 -30 p, m., arriving at Canandaigua at 4.52 p. m.
Mr. Merrice proposed, also, to place in evidence a copy of Appleton's RailTay Guide for March, 1865.
ilr. PieRRepont said he had no objection to Appleton's Railway Guide for April going in evidence as Appleton's Railway Guide, for what it is worth. Ho Ejected to the Guide for March going in evidence as tending to prove what was the time for April.
Mr. Merrice said he had not been able to find a copy for April, but hoped '' do so.
Mr. Merrice desired to call the attention of the court to an anthority in 12 Howard United States Supreme Court reports in support of the application on the part of the defence to admit the Canandaigua register, and referred to the case of Gaines vs. Relf. He (Mr. Merrick) had remarked when the matter was under discussion that a letter was evidence of the time and place at which it was written. The court had then indicated that that was not his view of the law, and he now desired to present this anthoritative decision upon the subject.
The Court remarked that he presumed the letter in the case referred to was accompanied by an envelope having a postmark on it, or that it contained some internal evidence that it was written at the time and place.
Mr. Mep.rice said there was no reference in the report to the letter being postmarked. The decision referred to 1st Philip's Evidence by Cowan, pp. 189, 190. His (Mr. Merrick's) edition was a later one and he did not find the reference, but the reference to it seemed to be so explicit as to make it conclusive upon the point.
Mr. Bradley said that the handwriting having been verified and the date were the points relied on in that case.
Mr. Bradley read from the report of the case referred to more at length to establish the view taken by Mr. Merrick.
Mr. Pierrepont admitted that letters upon family matters were admitted in evidence as going to show what feelings existed between the parties.
Mr. Bradley replied that in the case referred to the letter was admitted not only for that purpose, but as evidence of the time and place at which it was written.
The Court suggested that the defence should proceed with the examination of their witnesses and allow this matter to come up at some other time.
Mr. Bradley said they desired particularly that Father Boucher should he present for examination; that he left Montreal three days ago, and he (Mr. Bradley) had not heard of him since. He supposed he would certainly have been here to-day. He would also state that since yesterday they had succeeded in discovering a witness residing in the city of New York, for whom they had been looking for months—a gentleman who was at the Brainard Hotel, Elmira, on the 14th and 15th of April, 1865, and there saw the prisoner at the har. They had telegraphed immediately to him, and requested him to respond by telegraph whether he would be here. The testimony of a large number of the witnesses summoned for the defence had been excluded under the rulings of the court, and they had been discharged. With that statement he left the matter with the court.
The Court inquired whether there were any objections on the other side to granting further time for the witnesses on the part of the defence to be here.
Mr. Pierrepont said they left it entirely in the hands of the court.
Mr. Merrice remarked that whatever time was necessary might as well he occupied to day in disposing of the motion made by them some weeks since to strike out the testimony in relation to Jacob Thompson; in regard to the declarations of McMillan of the alleged statements of the prisoner of shooting Union soldiers, killing a telegraph operator, and of a fight that occurred with some gunboat on the Potomac river; also, in relation to the North Carolina cipher letter. The prosecution having failed to connect this testimony with the conspiracy, and it having only been admitted on that condition, it was now proper that it should be stricken out. The court had suggested on a former occasion that he preferred to reserve his decision until the testimony was all in. The testimony now to be submitted must be confined strictly to rebutting evidence already presented; no evidence which could have been presented in chief could now be admitted.
Mr. Pierrepont did not so understand the rule of evidence; for instance, t)"- prosecution had the right to show, and did for various purposes, although not obliged to do so, the presence of the prisoner in Washington. The other side had undertaken to show that the prisoner was present in Canandaigua or Elmira on the 14th day of April. It would now be rebutting evidence for the prosecution to show that he was not in Elmira on the 14th of April. He offered that illustration to show the incorrectness of the rule of evidence stated by counsel on the other side.
Mr. Merrice argued further in support of his view of the rule of evidence referred to, and in opposition to the suggestion of the counsel for the prosecution, that it was not necessary for the government to prove the presence of the prisoner on the day of the assassination. That law was well settled, he thought, by some fifteen English decisions, and by the case of Knapp, in Massachusetts, in which Mr. Webster had laid down the principle, extending it, he said, as far as it could possibly be extended, that a co-conspirator, in order to be charged as a principal, must be within such distance that he could render material aid in the consummation of the act, or render the party who struck the blow, fresh from tbe deed, assistance in his escape. The same rule also was laid down by Chief Justice Marshall in the case of Burr.
Tbe Coi.'iit decided to hold these questions over for future consideration.
Richard Sutton sworn and examined.
Q. State, if you please, whether you have had a large experience in reading and examining handwriting?
A. Very large.'
Q. Have you examined the letters which I exhibited to you just now?
Mr. Pierrepont inquired what letters.
Mr. Bradley replied, letters in evidence, and admitted on both sides to be the original handwriting of John H. Surratt.
A. I have.
Q. Have you compared the handwriting with that of the envelope and enclosure I now hand 3'ou? (Letter signed Tony, addressed to George A. Atzerodt, heretofore placed in evidence.)
A. I have.
Q. Is that written by the same hand who wrote the others or not?
A. I think not.
Q. Now state, if you please, if you have also compared the handwriting of two original telegrams by Booth, heretofore placed in evidence, and addressed to O'Langhlin, with the handwriting of the letter, also in evidence, known as the Charles Selby letter?
A. I have.
Q. Have you carefully compared them?
A. 1 have.
Q. In your judgment are they written by the same person?
A. They are not.
Cross-examined by Mr. Piereepont:
Q. Do you know in whose handwriting these telegrams are?
A. I do not. I was informed.
Q. You do not know the handwriting?
A. No, sir.
Q. Do you think this Charles Selby letter is in a natural hand?
A. No, sir.
Q. You think it is disguised?
A. Yes, sir.
Q Do you know who disguised it?
A No, sir.
Q. You are not an expert, are you 1
By Mr. Bradley: Q. Yet you have had a very large experience in reading and comparing handwriting?
A. Yes, sir; very large.
By Mr. Pierrepont:
Q. Now take the letter already shown you in the original handwriting of Surratt, and take this card (card heretofore placed in evidence admitted to he in the handwriting of the prisoner) and say whether you think it is in the same handwriting?
Mr. Bradley (to Mr. Pierrepont ) Which side do you show?
Mr. Pierrepont. Either side. (To witness :) Do you think it is the same handwriting?
A. I could not undertake to say that it is.
Q, Do you believe that card is not in the same handwriting as the letter?
A. I shall have to examine them a little more carefully to speak with accuracy.
Q. Well, examine them; they do not look much alike, do they?
A. No, sir; they do not.
Q. Do you think they are in the same handwriting?
A. I would not undertake to say, for this reason: I have seen letters written by the same person, admitted to be written by the same person, in no respect alike in the appearance of the handwriting.
Mr. Pierrepont moved that the testimony of this witness be stricken out. It was conceded that the card and the letter were in the same handwriting. The witness admitted that he was not an expert.
Mr. Merrice said, that although he admitted he was not an expert, his statement was that he had had a large experience in examining handwriting.
The Court remarked that perhaps it would be better to examine the witness as to whether he has had his attention directed to the difference in the handwriting of persons so as to be able to determine their identity or otherwise by comparison.
Mr. Pierrepont. Very well; I will put this question:
Q. Have you had your attention directed to the difference in the handwriting of persons, so as to be able to determine from comparison their identity or otherwise?
A. No, sir; I have not.
By the Court:
Q. Have you made it your study to compare handwritings with a view of ascertaining whether different papers were written by the same person?
A. No, sir; I have not. I can explain, if the court desires it, what my experience has been.
The Court. Very well; explain what your experience has been.
Witness. My experience has been the reception of contributions written by all sorts of people, learned and unlearned, and in the writing of people employed in my office, as well as in the reception of letters for publication or otherwise, extending through a period of forty years.
By Mr. Pierrepont:
Q. Your business has been rather that of deciphering handwriting than of comparing handwriting 1 A. Yes, sir.
By the Court:
Q Have yon ever had your attention directed to this branch of chirograpby? Have you ever made it your study to ascertain by comparison whether the signature of a letter or any paper or writing was genuine or forgery?
A. No, sir.
Q. Nothing of that sort?
A. No, sir; I have not.
Mr. Bradley read note 1 to section 440, 1 Greenleaf on Evidence, to show that the knowledge of the witness as an expert came within the rule. 'The Coi'RT remarked that to enable a person to testify as an expert in handwriting, he must have had some considerable study and experience in that specialty, such as bank officers and other business men have in detecting spurious from genuine handwritings. A person merely engaged in literary pursuits, or in the more learned professions, if he had not had his attention directed to the matter of a comparison of hands, of course could not testify as an expert.
The testimony of this witness was directed to be stricken out.
Mr. Bradley suggested that, as he expected to examine only the two witnesses he had referred to for the defence, the prosecution now proceed with their rebntting evidence, and the defence be allowed to exam'ne these two witnesses should they make their appearance within a given time.
The District Attorney replied that the counsel for defence had rejected a similar proposition at the close of the evidence for the p-osecution, and the prosecution were now disposed to insist upon the same rule: that the other side must complete their case before they would enter upon the examination of other witnesses.
After further conversation the court determined to give the defence until tomorrow night to close their case. And therenpon the court took a recess until to-morrow morning at 10 o'clock.
Saturday, July 20, 1S67. The court met at ten o'clock a. m.
Augustus Bissell, physician—residence New York city—sworn and examined.
By Mr. Bradley:
Q. State, if you please, whether you were in Elmira on the 14th of April, 1S65.
A. I was.
Q. Were you at the Brainard House there?
A. I was.
Q. State whether you saw the prisoner at the bar at that time. (The prisoner stood up.)
A. I did.
Q. Have you any means of fixing the precise date?
A. I have.
Q. State to the court and jury, if you please, how you fix it.
A. I left Owego, thirty-six miles east of Elmira, on the night express from •Vw York, which got to Elmira in the morning a little before daylight at that time—the night of the 13th and morning of the 14th—in search of a man.
Q State who the man was, and the circumstances which fixed it in your memory.
A. The man was a brakeman upon the New York and Erie railroad. I had a suit against the New York and Erie railway for damages for an injury sus tained by me from which I am still suffering. I went to Elmira in pursuit of h.'in to ascertain his whereabouts.