The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-10-08
HIS DEFENCE OF THE COURSE PURSUED
Thsy arc Held to bo Co-Conspifators with
Wirx, and Incompetent to Testify
in His Behalf.
ADJOURNMENT TILL THURSDAY NEXT.
&c. &c. ;. &c.
WASHINGTON. Oct. 7. 1885.

day testified to the thriving business affairs &c, at
Andersonvile. The is George W. Fechnor but at
the prison he assumed that Of Charles W. Ross.
This morning Captain seph was recalled, and testified
that of the boxes with sanitary goods for soldiers
were broken open the way to their destination; the
command of the witness with the rebel army vcks
burg vaccnated for the smallpox but those who
had the smallpox recovered than those who had
been vaccnated vaccine matter at that time very
scarce in the South.
Mr. BAKER nade statement to the Court and then
asked that adjournment take place till Thursday He
satisfied that II the time granted he could so
arrange matters that the business would be facilitated
He telt satisfied that then the Judge Advocate should
take up time in the examination than he
should in the direct examination all the witnesses could
be examined within week.
Colonel CHrpMAS said that that matter entirely
within the discretion of the Court.
The COURT after voting, said the members were willing
to adjourn till Wednesday, at ten O'Clock.
MI. BAKER said that would not afford him sufficient
time.
Col. CHAPMAN suggested that the Court adjourn till
Thursday and that then and thereafter they sit without
regard to regular hours and thus make the time lost
by an adjournment over.
The Court acquiesced in the suggestion
Judge Advocate CHAPMAN said that some of the wit
asked for by the defence had been subpenaed in
advcrtently while subpGnas for others which bad been
issued after further consideration revoked These
remarks applied to certain class of witnesses which
the Court understood embraced high and prominent
men in the rebel embellishments Lee and Johnston
Howell Cobb Mallory, Moore, Commissioner Ould
and Others Colonel Chapman remarked that his action
based on what he believed to be the law, his
Judgment without consulting any one, and within the
discretion as he thought by virtue OF his Office He de-
sired TO submit his action that the counsel for the de-
fence may object or II the Court disspprove may take
the matter ont of his hands He then called the atten
ton Of the Court TO decisions and opinions with
regard to certain propositions of law applicable to the
question now submitted az 70 the competency OF
the accused saying-I have desire to exclude any
evidence proper to be placed record in defence OF tho
charges here laid nor in any to abrogae detac
from the evidence In direction; but there are rea
good in law and fact for excluding certain wit
nesses and certain class OF testimony, which
think sufficient TO justify the course Of the
government in this particular In tenth johnson. page
95 II Is decided THAT party in the same indictment
cannot be witness for his co-defcndant until no has
first been acquitted or convicted whether they plead
jointly separately Again. Addisons Reports, page
1853 says:"N circumstances are proved from which IL
is possible Tor the jury to presume facts amounting to
guilt defendant In an indictment cannot be witness"
Again In the case Of the State vs. Alexander and others
Second Reports Of Connecticut page Ill IL decided
"where the evidence against one OF the defendants
was not sufficient to convict him the court
refused to strike his out Of the indictment for the
purpose Of making him witness for Others without the
assent OF the Attorney General though he might advise
his acquita In the text First Starkes Evidence page
100, sixth American edition) find " when the evil
dence is Of such nature that arqntta would nure to
the benefit Of either In joint Indictment Is incom-
fore after the fact would be Incompetent a
witness for principal, and consprator would be
incompetent to discharge his associaesn distinction
seems TO be made between accompliccs and accessories
before after the fact and conspraors The rt named
competent witnesses for their associates though they
be severaly indicted for the same offence (Statkic,
second volume page IL, sixth American cdition.) The
last named-to wit, accessories and coconsprators-
as we have seen, are incompetent first volume
page 1901; but in second Hale, page 1So soye.
raj cited showing that the text in
starkie is not quite accurate, as his proposition
Is not true where the offence is joint. Without arguing
propositions clearly stated as these think II Is safe
for the Court conclude that -Frst-Al principals in
the first dcgree-tha Is those who directly perpetrae
the act--are Incompetent second-Principals in the
second degree actually or constructvely present,
incompetent Third-Accessorcs before or after
the fact, whose conviction the evidence evolved
will warrant, against whom sufficient circumstances
point to guilt are incompetent FourthAll consprators
are incompetent and this true In all these cases,
whether the parties be named Ia the Indictment
that the proof Ia sufficient to convict them, above
stated, with the offences alleged Again, answer that
there Is OF the rebels whom the counsel ask to
subpoena as witnesses who will not be compelled TO
answer his vdr dire that he has committed
against the United States His confession In open court
according the constitution OF country IL equivalent
to the testimony OF two witnesses He stands therefore,
convicted Of the highest crime known to our laws and
all that Is wanting to render him infamous Is
formal verdict / say therefore, he IL Incompetent.
Again. this rebellion has been gigantic Of treason,
common conspiracy 70 overthrow government
Not single rebel engaged in IT, according TO the strict
rules OF law Is competent witness for another trial.
charged with reasonable Offences as no Is an accessory
before after the fact, co-consprator
pcc and therefore excluded say then, until thcy
purged by special pardons, by general pardon or by
acquittal before competent court, no one OF them
ought TO be permitted TO testify for his associates
Mr. BAKER replied that when these witnesses were
asked Tor ne % ey would us, oS IS
den Dr.. Moore and Colonel 0uld. He wanted them for
the following was testified for the prosecu
ton that Howell Cobb had made a speech at Anderson
vile, not only reasonable but so criminal as 70 be
almost dcmoniaca encouraging the Confederate soldiers
70 murder or XII our men He proposed TO contradict
stand under the rules OF law Cobb's the best EVIL
dence to show the words charged were never uttered
He had subp9naed Ex-Governor Brown, Of Georgia, TO
testify the point about supplies question which
largely entered into the prosecution The govern
ment had brought some insignificant witnesses 70
those who knew best Tho Governor had TO protect his
own people from starvation and TO take possession OF
railroads for the transportation OF supplies and he
intended 10 show by General Lee that he had 10
leave hts command and exert his great influence pr
vatey a. an Individual In order that supplies might be
sent TO his soldiers 10 them from starvation He
intended TO call General Johnston 10 show that his army
could not be supplied In order that the question might
be seen IN the proper light. Every witness named
important After they had been subpGnaed he heard
that the orders were countermanded Colonel Ould
here In attendance At the court under what was believed
TO be equivalent TO an order but discharged In
travention OF his Mr Bakers wishes and without his
knowledge IL seemed 10 him II very unusual for a
prosecutor TO take such authority and IL should not
BIO exercised But he made no point against the
Judge Advocate OF personal nature, because he sup
posed the gentleman acted under the sound and prudent
action Of the government but at tho same time he felt
bound to protest against such proceedings Another Of
his witnesses Duncan) arrested and placed In the
Old Capitol He had always understood that witness
protected by tho process OF bringing him here He
informed by the Judge Advocate that Duncan
criminal and therefore had no right 10 testify. so
persons could not testify because they charged
with Offences while others could not testify because they
had been conspicuous in the Southern service The
argument OF the Judge Advocate had been overthrown
BY his own conduct He had brought these criminals
here, and he mr. Baker, took and added others 10 them
puttho he HI had
persons Of infamous character could not be allowed az
witnesses in court Of justice but u would take higher