May 30, 1865 - Testimony of Robert F. Martin, recalled.
ROBERT F. MARTIN, recalled for the accused, Samuel A. Mudd.
By MR. EWING:
Q. When you were upon the stand yesterday, you thought that Dr. Samuel A. Mudd, Henry L. Mudd, Jr., and Dr. Blanford, were at your house on the 4th of April last?
A. That was a mistake. It was Jerry Mudd, instead of Dr. Mudd, that was there on that day, as I find on examining my register. It was on the 14th of April that Dr. Mudd and his brother and Dr. Blanford were there. The reason why I know is, because Joshua S. Naylor and Lemuel Orme drove up about half an hour, I think, after Dr. Mudd left; and they asked me if there was anybody from the country up, and I told them Dr. Mudd and his brother had just left my house, and they registered their names.
Q. Do you recollect seeing Dr. Mudd and Jerry Mudd on their way to Washington in December last?
A. I did not see them on their way, to my knowledge. I saw them in market in Washington here on the 24th of December. The doctor stood at my stand, and helped me to sell turkeys, while I went around the market. He said he thought he could do better than I was doing; the market was rather dull. I left him, and went around the market, and came back; and I do not think he had sold one.
Q. How long was he at your stand in market that day?
A. I should judge it was from quarter to half an hour. He was there, I think, twice during the day.
Q. How long at both times?
A. The first time he was there he did not stop there long. The second time, he stopped not over five or ten minutes. He inquired of Lucas whether he could carry him a stove down that he had bought at Gregory’s, I think he said. Mr. Lucas’s reply was, that, if he sold his poultry, he would carry it down for him; if not, he would have to take it over to me. However, he did not sell out his poultry, and took some of it to my place, and left it for me to sell it for him. So the stove was not moved that day, I know, because I went down with Lucas to my house.
Q. Did you see him between that time, the 24th of December, and the 14th of April?
A. Yes, sir; he stopped at my house on the 23d day of March. His name is registered on my book on that day: and he got his dinner, and I put his horse away, and kept it until the 24th of March, when he came to my house, took dinner, got his horse, and started for home.
Q. Who was with him on that occasion?
A. Mr. Lewellyn Gardiner.
Q. Did he leave his horse there also?
A. Yes, sir: both horses were left there.
Q. What time were the horses left there?
A. I think it was before dinner.
Q. What time were they taken away?
A. They were taken away after dinner the next day.
Q. Do you know where they went?
A. I do not. I only know they went across the bridge.
I now propose to ask the witness what statement was made by the accused to him as to the purpose of his visit. Inasmuch as the visit has to be explained, I think, under the rules of evidence, that statement is clearly admissible. There are plenty of authorities for it.
ASSISTANT JUDGE ADVOCATE BINGHAM.
I undertake to say that there is not any authority in the world for it, because that is not in issue.
It is in issue whether he met Booth in January.
ASSISTANT JUDGE ADVOCATE BINGHAM.
Not in March. This is in relation to a visit of the 23d of March.
It is in issue whether Dr. Mudd met Booth in Washington. We are not confined as to any particular day when the meeting may have occurred. We want to show that he could not have met Booth from the 23d of December down to the time of the assassination of the President; and, in order to show that, we prove his presence at home during all that period, except the visit to Giesboro’, and the one night he went to the party; and we follow it by proof as to what his visits were for, and as to what he did, who was with him, and where he went. Now, as part of the proof, to show the purpose of the visits to Washington, his declarations as to the purpose of the visit made at the time of making the visit are admissible under the rules of evidence. I will read to the Court an authority on that subject, from 2 Russell on Crimes, p. 750: “And, generally speaking, declarations accompanying acts are admissible in evidence as showing the nature, character, and objects of such acts. Thus, where a person enters into land in order to take advantage of a forfeiture to foreclose a mortgage, to defeat a disseisin, or the like, or changes his actual residence, or is upon a journey, or leaves his home, or returns thither, . his declarations made at the time of the transaction, and expressive of its character, motive, or object, are regarded as verbal acts indicating a present purpose and intention, and are therefore admitted in proof, like any other material acts.” The authority is exactly in point. The fact of the journey is legitimately given in evidence by us; and so the object of the journey is legitimate: and, in connection with the object of the journey, his declarations as to its purpose are admissible.
ASSISTANT JUDGE ADVOCATE BINGHAM.
The great trouble is that the gentleman does not read enough. I would yield the point if he could show in the book from which he has read, or in any other book, an authority saying that proof of the kind now offered was admissible when the point to which it related was not in issue. The rule on the subject is, that, if the prosecution prove the declarations and acts of the accused, he may prove all that he said on those occasions, as part of the res gestæ; but there is no such thing in the text he read, or in any other, as that a man may prove what he said at another time and place not involved in the issue, and about which there has been no proof offered by the prosecution. The gentleman says he wants to prove what the prisoner said as to the object of this journey, in order to show that he was not coming to see Booth. I suppose if, on the 23d of March, he said he was not hunting Booth, and they prove that; and if, when he got back home, he said he did not see Booth, and they prove that, it would be proof of that fact! What authority is there for saying that that can be done? There is no book in the world that says so: the text read by the gentleman does not mean any such thing. If the gentleman can show me a text which says that a defendant may prove an act that has not been put in issue by the accusation, about which no proof has been offered by the prosecution, and prove all he said on that occasion, I shall yield. The same book from which the gentleman read lays down the law that the party shall not introduce his own declarations on his own motion. The text is (p 750): “Hearsay evidence of a fact is not admissible;” and it goes on to say, “There are, however, certain instances which it will be the object of this section to point out, where hearsay evidence is admissible;” but when? “When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question.” Now, is this transaction in question? How is the fact whether Dr. Mudd came to Washington on the 23d of March or not, in question? Is it so on the charge and specification? Not at all. Is it so by any proof offered by the prosecution? Not at all. Our proof is, that in January he was here, and had an interview with Booth: and he is not to disprove that by his mere declaration; and this testimony is offered for no other purpose whatever. It is not to explain any transaction, because there is no transaction calling for explanation. The fact that he came here on the 23d of March is not in evidence against him,—it is not a matter of accusation against him,—it is not a question; and therefore I say the declarations of that date, proposed to be offered in evidence, are his declarations, offered in evidence on his own motion, for no purpose except to disprove the testimony offered against him by the prosecution,—that he had an interview with Booth in January; and there is no text of any lawbook anywhere that says he can make evidence in that way by his own declarations.
The COMMISSION sustained the objection.
Q. [By MR. EWING.] State how far from the bridge your hotel is.
A. It is about a hundred yards from the hotel to the Navy-Yard Bridge, the Eastern Branch Bridge.
Q. Do persons going to Bryantown from Washington pass by your hotel?
A. Yes, sir: I have a post-office there. The Leonardtown stage leaves the mail there, going and coming, morning and afternoon.
Q. State whether, upon any other time since the 24th of December, you have seen Dr. Mudd going to, or returning from, Washington, or about you hotel, except those two times that you speak of.
A. I have never seen him. I am not home much myself. I attend market pretty regular.
Q. Have you ever known of his being there at any other time?
A. No, sir: I have not. I never kept any record of persons stopping there until the 20th of February. I cannot recollect him stopping there on the 24th of December. I saw him in market, though.
Cross-examined by ASSISTANT JUDGE ADVOCATE BINGHAM:
Q. Who are the two persons that you say called at your place, and asked if there was anybody there from Charles County?
A. Mr. Joshua S. Naylor and Lemuel Orme.
Q. What day was that?
A. I can tell positively by the register. It was on the 11th day of April.
By MR. EWING:
Q. Do you know whether Dr. Mudd was there when Joshua S. Naylor or Lemuel Orme came there?
A. I think not. They were just from Upper Marlboro’, and went the other road. They went from my house, and drove right over to the cars, taking their horses back.
Q. Did they say for what purpose they wanted to see him?
A. They did not say they wanted to see anybody in particular. They were only inquiring whether anybody was up from the county.