The District Attorney, on behalf of the government, left the whole matter with the Court.
The Court remarked that this was the third communication of a similar tenor he had received from the jury. If he thought there was any possibility of their coming to an agreement as to the guilt or innocence of the prisoner, he would have no objections to keeping them out longer, but supposing from the statement made by them, no such result could be expected, he directed the jury now to be discharged. The prisoner was then remanded to the custody of the Marshal.
A second indictment was found against him for the murder of Abraham Lincoln, and the District Attorney entered a nolle prosequi on this. Thus the prisoner was set at large.
The result of this trial by a civil court made it clear that no verdict could be expected from any jury that could be obtained under the law, and so the case was not further prosecuted. It does not come within the scope of the author's plan to review in detail this great mass of evidence. Neither is it necessary. It is sufficient for him to say that the charges contained in the indictment were fully proven by the testimony in chief of the witnesses for the government, and that this testimony was not impaired in any essential point by the efforts of the counsel for the defense in their cross-examination of these witnesses, nor yet by the testimony offered by the defense. It will be found upon a careful and candid scrutiny to fully sustain the statements herein-before given as to the conduct of Surratt in his relations to the transaction. No one can carefully read the masterly summing up of the evidence, and the fair and honest interpretation of it by Judge Pierrepont in his concluding argument, without being thoroughly convinced that Surratt was a prominent and active member of the conspiracy, and that he took an active hand through a period of more than three months in preparing for the execution of its purposes, as also in its final accomplishment. The evidence was shown to prove conclusively the fact that from the time of his introduction to Booth, on the 23d of December, 1864, to the time of the assassination, their associations were of the most intimate and confidential character; that they were much together, and co-operated in bringing together in Washington City the other members of the conspiracy, on whom they relied for important parts in the final act. It was shown that the house of Mrs. Surratt, the mother of the prisoner, was the place of rendezvous for Booth, Atzerodt, and Payne, and that her house at Surrattsville, occupied by her tenant, Lloyd, was made the place of deposit for arms to be used by Booth and Herold in their flight after the murder; that these were placed there by Surratt, and that his mother also had knowledge, not only of this fact, but of the purpose for which they had been provided, and of the time they would be called for, and was used by the conspirators to convey to her tenant, Lloyd, the notification to have them ready, as they would be called for that night.[29]
It was here, on this civil trial, that "the scales of justice fell," and not, as alleged by the prisoner's counsel, at the trial before the Military Commission.
The District Attorney and His able assistant, Judge Pierrepont, had both expressed their confidence in the ability of the civil courts to compass the ends of justice; but the result of this trial showed that in a crime committed to further political party interests, no jury could be expected to find a verdict; and so the government refused to prosecute the case any further. The prisoner was set at large.
At the conclusion of the trial, on Aug. 10th, 1867, Surratt was remanded to prison, and on May 12th, 1868, he asked to be released on bail, but was refused. On June 22d, 1868, he was released from custody. On the 22d of September, 1868, a nolle prosequi was entered.
Another indictment was found against him for engaging in rebellion. Upon this he was ordered to be admitted to bail in a bond of $20,000. He first pleaded not guilty, and then asked to withdraw this plea, and to file a special plea, which was granted. The government demurred to the plea on Sept. 22d, 1869. The demurrer was overruled, and he was finally discharged.