The distinguished assistant judge advocate, Mr. Bingham, who has brought to the aid of the prosecution, in this trial, such ready and trenchant astuteness in the law, has laid the following down as an invariable rule, and it will pass into the books as such:—­

“A party who conspires to do a crime may approach the most upright man in the world with whom he had been, before the criminality was known to the world, on terms of intimacy, and whose position in the world was such that he might be on terms of intimacy with reputable gentlemen.  It is the misfortune of a man that is approached in that way; it is not his crime, and it is not colorably his crime either.”

This rule of construction, we humbly submit, in connection with the question of doubt, has a direct and most weighty bearing upon the case of our client.  Some indication of the mode in which we propose to apply it may be properly stated here.  Now, in all the evidence, there is not a shadow of direct and positive proof which connects Mrs. Surratt with a participation in this conspiracy alleged, or with any knowledge of it.  Indeed, considering the active part she is charged with taking, and the natural communicativeness of her sex, the case is most singularly and wonderfully barren of even circumstantial facts concerning her.  But all there is, is circumstantial.  Nothing is proved against her except some few detached facts and circumstances lying around the outer circle of the alleged conspiracy, and by no means necessarily connected with guilty intent or guilty knowledge.

It becomes our duty to see:—­

1.  What these facts are.

2.  The character of the evidence in support of them, and of the
   witnesses by whom they are said to be proven.  And,

3.  Whether they are consistent with a reasonable theory by which
   guilt is excluded.

We assume, of course, as a matter that does not require argument, that she has committed no crime at all, even if these facts be proved, unless there is the necessary express or implied criminal intent, for guilty knowledge and guilty intent are the constituent elements, the principles of all crime.  The intent and malice, too, in her case, must be express, for the facts proved against her, taken in themselves, are entirely and perfectly innocent, and are not such as give rise to a necessary implication of malice.  This will not be denied.  Thus, when one commits a violent homicide, the law will presume the requisite malice; but when one only delivers a message, which is an innocent act in itself, the guilty knowledge, malice, and intent, that are absolutely necessary to make it criminal, must be expressly proven before any criminal consequences can attach to it.  And, to quote:—­

“Knowledge and intent, when material, must be shown by the prosecutor.” (Wharton’s American Criminal Law, section 631.)

The intent to do a criminal act as defined by Bouvier implies and means a preconceived purpose and resolve and determination to commit the crime alleged.  To quote again:—­