tune 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: