Your honor knows that, if we have any fact to go to the jury, they are getting into this case a crime of a very different character and of a deeper dye, for which they have made no charge, and which does not bear upon that which, if a crime at all, was consummated in the capture of the Joseph--the only crime alleged in the indictment. I submit that they cannot, with a view of showing complicity in a crime completed, show that the next day the men committed another crime of a deeper character. I think it is not only irrelevant, but highly objectionable. _The Court_: We are of opinion that this testimony is superfluous, and superseded by the admission of the counsel. I understand the admission of the counsel to be, that the vessel was fitted out and manned by common understanding on the part of all the persons on board, as a privateer; and that in pursuance of that design and intent, and the completion of it, the Joseph was captured. That is all the counsel can ask. That shows the intent--all that can be proved by this subsequent testimony; and unless there is some legitimate purpose for introducing this testimony, which might, of itself, go to show another crime, we are bound to exclude it. _Mr. Evarts_: We consider the decision of your honor rests upon that view of the admission, and we shall proceed upon that as being the admission. _The Court_: Certainly; if anything should occur hereafter that makes it necessary, or makes it a serious point, the Court will look into it. _Examination resumed by District Attorney Smith._ _Q._ You stated, I believe, that it was after 8 o'clock in the evening when the boat of the Perry came to the Savannah? _A._ Yes, sir. _Q._ Who was in that boat? _A._ There was a gentleman from the Perry; I do not know that I ever saw him before; an officer and boat's crew,--I suppose 15 or 20 men. _Q._ One of the United States officers? _A._ Yes, sir; some officer from the brig Perry boarded us, and demanded us to go on board the Perry. _Q._ Where were the crew of the Savannah at the time the boat came from the Perry? _A._ All on deck, sir. _Q._ At the time the Savannah was running down the Joseph, what time was it? _A._ We got up to the Joseph somewhere late in the forenoon, as near as my memory serves me. _Q._ I want to know whether all the officers and crew of the Savannah were on duty, or not, at the time you were running down? _A._ Yes, sir; there were some walking the deck, and some lying down, right out of port; the men, after taking a drink, did not feel much like moving about; they were all on deck. _Q._ Was there any refusal to perform duty on the part of any one? _A._ No, sir; all did just as they were told. _Q._ How was the Savannah armed, if armed at all? _A._ I never saw all her arms, sir. _Q._ What was there on deck? _A._ A big gun on deck. _Q._ What sort of a gun? _A._ They said an eighteen-pounder; I am no judge; I never saw one loaded before. _Q._ A pivot gun?