Benn Pitman

“ Against how many scores of loyal persons, even in this community, may stronger evidence be adduced than against Mudd, if the mere fact of meeting and conversing with Booth is to be accepted as evidence of guilt? ”

“ Mudd did say on that subject.
The commentators upon the law of evidence give a caution which it may be well for the Court to observe. They admonish us how easy it is for a corrupt witness to falsify a conversation of a person accused, and as the accused can not be heard, how difficult, if not impossible, contradiction is. How easy for an honest witness to misunderstand, or in repeating what was said, to substitute his own language or inference for the language which was really used, and thus change its whole meaning and import. ”

“ No one can, in the strong light of the evidence, believe he was a conspirator.
I then confidently conclude that Dr. Mudd can not be convicted as a principal in the felony. He did not participate in its commission, and was more than thirty miles distant from the scene when it was committed. He can not be convicted as an accessory before the fact, for the evidence fails to show that he had any knowledge or suspicion of an intention to commit it. If, then, he is to be held responsible at all, it is an accessory after the fact. Does the evidence implicate him in that character? ”

“ It is monstrous to believe any such thing occurred. It outrages all that we have learned of the philosophy of human nature, all that we know of the motives and principles of human actions. And yet, if Mudd was not then and there inducted into the plot, he never was. He never saw Booth again until after the assassination, and never saw any of the other conspirators at all. Twice, then, and twice only unless the Court shall accept the testimony of Weichmann against the clear proofs of an alibi, and then only three times - he and Booth had met. ”

“ He must, as a sane man, have contemplated and planned escape across the Potomac into Virginia, and thence South or abroad; and it could never have been part either of the plan of abduction, or of that of assassination, to go the circuitous route to a crossing of the Potomac by Bryantown or Dr. Mudd's. So that the fact of Booth going to the house of the accused and stopping to get his leg set and to rest, does not necessarily lead to any conclusion unfavorable to the accused. ”

“ For the law is clear, that, in cases of treason, presence at the commission of the overt act is governed by the same principle as constructive presence in ordinary felonies, and has no other latitude, greater or less, except that in proof of treason two witnesses are necessary to the overt act, and one only in murder and other felonies. "A person is not constructively present at an overt act of treason, unless he be aiding and abetting at the fact, or ready to do so, if necessary." ”

“ I once more concede, that (if the Court accept Weichmann's statement) it is possible he may have talked treason and plotted assassination with Booth and Surratt, but it is indefinitely removed from the probable; and neither liberty nor life is to be forfeited upon either probabilities or possibilities. ”

“ Mudd was at his residence in the country, thirty miles from the place of the crime. Those who committed it are shown to have acted for themselves, not as the instruments of Dr. Mudd. He, therefore cannot be charged, according to law and upon the evidence, with the commission of this overt act. There are not two witnesses to prove that he did commit it, but abundant evidence to show negatively that he did not.
Chief Justice Marshall, in delivering an opinion of the Court in Burr's case, says: "Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. ”

“ If a man receives, harbors, or otherwise assists to elude justice, one whom he knows to be guilty of a felony, he becomes thereby an accessory after the fact in the felony. 1 Bishop’s Crim. Law 487. Obviously, a man to be an accessory after the fact must be aware of the guilt of his principal; and, therefore, one can not become an accessory by helping to escape a prisoner convicted of felony, unless he has notice of the conviction, or at least of the felony committed. ”

“ Though not distinctly informed as to the offense for which the Judge Advocate claims conviction, I am safe in saying, that the testimony does not point to treason, and if he is being tried for treason, the proceedings for that crime are widely departed from. The prosecution appears to have been instituted and conducted under the proclamation of the Secretary of War, of April 20, 1866. This makes it a crime, punishable with death, to harbor or screen Booth, Atzerodt, or Herold, or to aid or assist them to escape. It makes it a crime to do a particular act, and punishes that crime with death. ”

“ Booth got there, with Herold, about daybreak (Frank Washington) . He usually wore a mustache (see photograph) , but he then wore heavy whiskers, and had his face muffled in it shawl, so as to disguise him. The disguise was kept up all day. (Col. Wells.) He was taken to a lounge in the hall, and then to a front room up stairs, where the broken bone was set, where a fee of $25 was paid for the service, and where, it is probable, he slept most of the day. They represented that the leg had been broken by a fall of the horse; that they had come from Bryantown, and were going to Parson Wilmer's. ”

“ If a conspirator, he knew what had been, and what was to be, done. He knew that the hour for the bloody business was at hand, and that everything depended upon the secrecy and success of its execution. ”

“ At any time and in any community, an advertisement of rewards to informers would be likely to be responded to - at a time, and on an occasion like this, it would be a miracle if it failed of effect. In view of these considerations, the Court can not be too vigilant in its scrutiny of the evidence of these detectives, or too circumspect in adjusting the influence to be given to it.
No more effective refutation of this statement, that Mudd denied on Tuesday that two strangers had been at his house, can be given than to ask how came Lieut. Lovett and the detectives at Dr. Mudd's? ”

“ Persons not sufficiently near to give assistance are not principals. And although an act be committed in pursuance of a previous concerted plan, those who are not present, or so near as to be able to afford aid and assistance, at the time when the offense is committed, are not principals, but accessories before the fact. Wharton Am. Crim. Law, 112 to 127.
It is, therefore, perfectly clear, upon the law as enacted by the Legislature and expounded by jurists, that Dr. Mudd is not guilty of participating in the murder of the President ”

“ I now pass to a consideration of the evidence, which I think will fully satisfy the Court that Dr. Mudd is not guilty of treasonable conspiracy, or of being an accomplice, before or after the fact in the felonies committed.
The accused has been a practicing physician, residing five miles north of Bryantown, in Charles county, Maryland, on a farm of about five hundred acres, given to him by his father. ”

“ J. C. Thompson says, that early in November last Booth went to the house of witness' father-in-law, Dr. William Queen, four or five miles south of Bryantown, and eight or ten from Dr. Mudd's, and presented a letter of introduction from a Mr. Martin, of Montreal, who said he wanted to see the county. It does not appear who Martin was. Booth said his business was to invest in land and to buy horses. He went with Dr. Queen's family to a church next day, in the neighborhood of Bryantown, and was there casually introduced, before service, by Thompson, to the accused. ”

“ It will be observed that the only men spoken of by this witness as having seen the accused on this occasion are, Booth, who is dead, and Surratt, who is a fugitive from the country. So there is no one who can be called to confirm or confute his statements, as to the fact of these men being together, or as to the character of the interview. But there was one fact about which he said he could not be mistaken, and by means of which his evidence against Mudd is utterly overthrown. ”

“ Any assistance given to him to hinder his being apprehended tried, or punished, is sufficient to convict the offender - as lending him a horse to escape his pursuers; but the assistance or support must be given in order to favor an illegal escape. ”

“ Lovett and the detectives did, on Tuesday, go to the house of the accused, accompanied by Dr. George Mudd, who prefaced his introduction by informing the accused that, in accordance with his request, he had brought Lieut. Lovett and the detectives to confer with him in reference to the strangers who had been at his house Saturday. Of these facts there is no doubt or dispute. They stand too prominently upon the record to be ignored or evaded. ”

“ His house is between twenty-seven and thirty miles from Washington, and four or five miles east of the road from Washington to Bryantown. It is shown by Dr. George Mudd, John L. Turner, John Waters, Joseph Waters, Thomas Davis, John McPherson, Lewellyn Gardiner, and other gentlemen of unimpeached and unquestionable loyalty, who are in full sympathy with the Government, that he is a man of most exemplary character - peaceable, kind, upright, and obedient to the laws. ”

“ True, Booth was guilty, and Mudd had shown his companion the route to Wilmer's; which was the only thing done by Mudd, from first to last, that could have implicated him, even had he from the first known the crime and the criminal. But when he did that, he did not know either; for he did not know the crime until he went to Bryantown, not have even the least suspicion of the criminal, until after Booth had gone. I have read you the law - the scienter must be shown. Things not appearing and not existing stand before the law in the same category ”

“ Mudd and Booth in the city of Washington, about the middle of - certainly after the holidays. But it is in proof by many witnesses, who can not be mistaken, have not been impeached, and who unquestionably stated the truth, that Dr. Mudd was from home but one night from the 23d of December to the 23d of March, and that night at a party in his own neighborhood. If this be so, and there is no reason to doubt it, then Weichmann's statement can not be true. The mildest thing that can be said of him, as of Norton, is, that he was mistaken in the man. ”

“ They must ‘perform a part’ which will furnish the overt act, and they must be leagued with the conspiracy." 4 Cr., 474
Now, as to Dr. Mudd, there is no particle of evidence tending to show that he was ever leagued with traitors in their treason; that he had ever, by himself, or by adhering to, and in connection with, others, levied war against the United States. It is contended that he joined in compassing the death of the President (" the King's death") . ”

“ It consists, in large part, of the testimony of the five negroes, as to the Confederate officers frequenting Mudd's house last year and the year before - two of them, Milo and Mary Simms, as to Surratt’s visiting his house last year - of Evans, as to Mudd's going to Surratt’s house last winter - of Evans and Norton, as to Mudd's being here on the 3d of March - of Weichmann, as to the interview between Mudd, Booth and Surratt, about the middle of January, and of Thomas, as to Mudd's prediction of the assassination in March. ”

“ Mudd saying that he had shown Herold the route to Person Wilmer's; that he showed it as Booth and Herold were leaving. But the inferences of detectives, under the strong stimulus of prospective rewards, are inferences generally of guilt; and that these gentlemen were not free from the weaknesses of their profession, and that they grossly misrepresented Dr. Mudd in other important statements, will presently be shown to the satisfaction of the Court. ”

“ Dr. Allen, Clark, Martin, Thomas Davis, Mary Mudd, Henry Mudd and Betty Washington confirm witness as to the objects or incidents of the visit.
On the 11th of April, three days before the assassination, while Booth, as appears by the hotel register, was at the National in this city, accused came to Giesboro to attend the sale of Government horses, which he and Lewellyn Gardiner had come on the 23d of March to attend. Though in sight of Washington, he did not come into the city, but took dinner at Martin's, and after dinner left and returned home. ”

“ Thomas, testifies that he is at times deranged; and Dr. George Mudd says that he is mentally and morally insane. And, although Thomas' evidence was the most important in the case against Dr. Mudd, the Judge Advocate has not seriously attempted to sustain him - has not tried to show that he ever told or hinted at this story to anybody before the assassination - and has not asked one of the scores of witnesses for the prosecution in attendance from Thomas' neighborhood a question as to his reputation for veracity except Wm. ”

“ Now, it will be recollected that Thompson says Booth stayed at Dr. Queen's on that visit Saturday night and Sunday night, and Thomas L. Gardiner says the horse was bought Monday morning. So that, if Col. Wells is correct in recollecting what Mudd said, then Thompson must be wrong. It is more probable that Thompson is right, as to Booth's having spent Sunday night at Queen's. Thompson's testimony is strengthened, too, by that of Mary Mudd, Fanny Mudd, and Charles Bloyce, who would, in all probability, have heard the fact of Booth spending Sunday night at the house of the accused, had he done so ”

“ At or within two hours of the time when Norton says he saw the accused enter the room at the National (half past 10 A. M., 3d of March) , Mary, Emily, Fanny and Henry L. Mudd, Frank and Betty Washington, Thomas and John Davis, all testify most emphatically to having seen him at his house, on his farm, or at his father's house adjacent to his own - six hours' ride from Washington! We have shown, too, by Mary Mudd, that the accused has always worn a lead-colored hit whenever she has seen him this year, and that she has seen him almost daily; and by Henry Mudd, Dr. ”

“ Wells had got the general direction, and it was in consequence of the information sent by the accused to the authorities the day after Booth left his house, that he was tracked to the Potomac.
But the evidence does not show that Dr. Mudd delayed at all in communicating his information, for it does not show when his wife told him of the false whisker of the crippled man. But, admit she told him on Saturday evening, as soon as the men left. It was four miles to Bryantown, and his wife may have feared to be left alone that night. Boyle, who haunted that neighborhood, was understood by Dr. ”