The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-07-28

lie same spir,t and moving toward the same end and
lsw Of nations the law of God every man
with II guilty. OF this great crime which thrilled the
great heart OF chrstendom Nj. Darlington then said
facts which he assumed to be proven in this Is the
guilt OF the prisoner at the bar and second 10 satisfy
proven beyond all reasonable and rational doubt II
he succeeds in maintaining the propositions be
entitled 10 verdict OF conviction For the court ne
| would submit the following propositions Of law
| fra-f The Jury believe from the whole evidences
| that Abraham Lincon received wound from pistol
nred by John wilkes Booth, in the city OF Washington,
about the time named In the Indictment which resulted
10 bis death IN pursuance Of conspiracy 10 murder or
assassnate said Lincoln OF which conspiracy the pris-
| oner was member; and that the prisoner was
| at the place and performed the part assigned
| him towards the execution of the common de-
sign, they should find him guilty as indicted no mat.
Ter what distance may have separated the conspira ors
wound was inflicted as aforesaid
Saoad-lf the jury believe that the object of said
conspiracy to abduct the said Lincoln the President
OF the United States, with general resolution on the
part OF the conspators to resist all who might oppose
them in the execution OF the design, and that
while engaged in said unlawful conspiracy of IN
conspiraor without the knowledge and contrary TO tue
wishes Of the other consprtors and the original plan
and purpose of said conspiracy killed he President
aforesaid the jury should find the prisoner guilty, as in
| dcied.
Yhird-If the jury believe from the evidence that at
the time President Lincoln killed as aforesaid. the
prisoner either actively constructively present.
encouraging. aiding, abetting maintaining the prnc
pal murderer they should lind him guilty indicted
although neither eye witness to tho
transaction, leaving open for the Court TO explain
constructive presence for all contend that lie was con-
slructvey present. matter how far off, he al the
place aud performing the part assigned him, where and
IN tho manner the consprators supposed he would be
most effective.
Four-If the jury believe the evidence that President
Lincoln was killed, as aforesaid in pursuance of said
spracy, Of which the prisoner a member, he being
either actively cOnsructively present al the me it
| is legal presumption that such presence with
such presumption by showing that he there for
| purpose nnconnected with the conspiracy.
Ffh-That the defence of Gtti, be ng an affirmative
de ence the burden Of proof upon the defendant,
- establish IL 10 the satisfaction OF the jury by pre-
popderance OF the evidence The facts 70 be submitted
TO the jury would bs as folows-FirsL Does II appear
from evidence that the assault charged in the
dictment was made In the manner and about the time
stated and within the Jurisdiction the honorable
court2 Second Does il appear from the evidence that
tho wound which the deceased received charged
the Indictment caused his deathY Third Does il appear
from the evidence hat the assault and death the
result of conspiracy OF which the prisoner at the bar
memDerS Fourth. What was the original charac-
ter, plan and purpose Of the conspiracy Fifth. II il
DO true that the prisoner member Of this conspir-
acy what part did he perform IN the general plan
sixth. Where was the prisoner, in point or fact the
time assault charged in the indictment was made
Was no in foreign commonwealth, was he in the city
of Washington, ID. c.? Seventh. Has not the prisoner
the bar confessed his guilt expressly and by implication?
Before listening to the argument OF the points, Tho
Court at past one O'Clock T. NJ took for
hair an hour.
UPON reasscmbling Mr. Darlington proceeded to con-
slider the propositions OF the casen regard
the FIRST proposition It could be maintains I'd, and that
spray he accessory, either before
or after the fact Assuming that he is guilty
or the principal The first point TO be noticed
whether the prisoner accessory before the
fact2 Counsel defined accessory before fact
~ lana down in wharton's Law Dictionary. In Bishops
Criminal Law tho character Of this criminal we'll
fined An accessory boore the fact Is one who con-
tributes his will towards the execution y criminal
design. but he does NJ principal act H. in addition
contributing his wilI he does some overt &C. The time
the crime Is committed he ceased 10 be accessory
degree. An accessory alter the tact who docs
nothing before tho committed and, present
the act lie ceases to DO an accessory. if man
IN conspiracy he Is acOnspra0r and amenable
TO trial for dsdemeanor and n he continues IN the
conspiracy until act is committed he becomes
aud TO be merely conspirator Where number
OF pers,Ds conspire to commit act OF MURDER the
OF conspiraor il the act OF all and this connec
ton led 10 he inquiry OF what the Law implies by
constructive presence When murder is committed as
design Of conspiracy every consprator Is supposed TO
be engaged in IT, matter how far distant he may have
been when the felony was committed. Suppose, in the
judgment OF tho consprator he could render aid
one thousand miles away than he could here, would he
not in contemplation OF law, be responsible for the
OF any one VI tho consPfuosf oonspnuors know oest
how 70 dispose OF their own forces, and cach was
signed position IN which he could best the In
terests OF tho conspratos and under this theory the
OF Booth in shooting the President the of all
the conspirators. In confirmation of these views Mr..
Carrng,on referred TO hrst of Bishop criminal law,
third edition, section COL and argued from that
decision that II the prisoner could render any
aid, however minute II might be- from New York
or New Orleans principal in the second degree
He also Gated from page 81 OF whartons Criminal law
later edtion, page l21, toshow that where number of
persons engage u conspiracy agans tho public peace
aud murder ensues by the of one, all equally
guilty, though the others neither eye wit
nesses; and II that principle was true he contended
that the distance separating the conspirators
eptirely immaierIa. II being mile from the
place OF crime does not oxonerate conspIator,
hundred or one thousand miles does not in the
least alter the principe II that he sound law. IL APP
plies To this conspiracy formed 10 strike at
the nation life by striking out Its head II
spiracy the natural consequence Of which murder
riot and boodshed and any conspirator, matter
where be might be, is equally guilty with the man who
struck the fatal blow or bred the fatal shot Tho proba
bic consequence Of such conspiracy murder. aud,
consequently, all engaged in 1t were equally guilty.
conspiracy was formed TO strike at the nations
heart 10y striking down the nations head. and the
LAG OF the land protects the nation aga inst
couspirsoss alike, Upon this poin, the old COM
mon law OF England was the same Il Is now and in
support Of this he would refer TO volume Of Haes'
Pleas of the Crown page i27, which enumerated prin.
cipe that Il not necessary for n conspira,or
b. an ear and eye witness OF the act to make him
able TO the law for the commission Of The crime.
la decision Of the supreme Conrt OF the United States
list Peters supreme Court Reports, page 363) in
VIII oh report a reference Is made to 18th whea-
top page 6la, IL decided that whatever agent
dos in performance OF his duty, Is considered
The act Of the principal a"d may De proven IN crm
lawful purpose aud be commits an unlawful act. the
prime pal Is not responsible but agent Is employed
do unlawful act and in the performance OF that
unlawful net he commits murder, then the principal is
responsible In conspiracy each co-conspirator Is an
Booth ared the fatal shot, the prisoner at
the bar brought from Montreal to per-
form his allotted part In 18th Wheaton the law
clearly laid down % the culpability OF the principal
for the OF bis agent committed while in pursuance
OF an unlawful act directed by the principal II must
he shown that the agent has tho authority; but this
being admitted the principal 70 liable, and IL may even
happen that the AGENT NAV 90 pnocent while the
principal proeurer guilty. in the case Of IDIOT
infant employed % administer poison. This pnnci
pie was maintained, NJ Darlington con,ended, IN Chief
Justice Msrshaifs decision in the Burr trial
~ reported IN fourth Crsnch. The doctrine there
n, that when war II actually levied and
a conspiracy formed man Is guilty u IL 10 proved
nrs that he was eagned la the conspiracy second,
that he committed overt He knew this would
be objected 10 on the ground that applied to treason
Yesterday Mr.. MERCK asked IL this prisoner in
diced for the crime OF treason. He MIR Carrington
would answer He was indicted for murder; but In
this murder there was an element OF He
tended that was reasonable conspiracy and that tho
prisoner giving aid 10 the enemies OF the couny
for money, and comprising the death OF the Presdent
While eudcavorns TO commit treason, he commits the
crime Of MURDER while engaged lesser he
Commits Tho hixher crime and