The Kansas in the Civil War Message Board

Capt. Oren Curtis court martial part 1

Headquarters – Department of the Missouri
Fort Leavenworth March 21st 1865

SPECIAL ORDERS }
No. 76 } Extract

5-A GENERAL COURT MARTIAL is hereby appointed to meet at Fort Leavenworth, Kansas on Thursday at 10 o’clock a.m. March 23rd, 1865 or as soon thereafter as practicable for the trial of such prisoners as may be brought before it.

Detail for the Court

Maj. Gen. George SYKES USV
Brig. Gen. Thomas A. DAVIS USV
Col. W. R. DAVIS 16th Kansas Volunteer Cavalry
Capt. E. P. ELMEN Co K, 2nd Colorado Volunteer Cavalry
Capt. A. WRISBERG Co D, 2nd U.S. Volunteer Infantry
1st Sgt Samuel W. WADE Co A, 2nd U.S. Volunteer Infantry
Maj. J. N. MC ELROY Judge Advocate USA
Judge Advocate of the Court

No other officers than those named can be assembled without manifest injury to the service. The COURT will sit without regard to hours.

By command of Maj. Gen. Dodge.

(signed) John Williams

Assistant Adjutant General

Fort Leavenworth Kansas
10a.m. March 27, 1865

The court met pursuant to adjournment and the foregoing order.

Present

Maj. Gen. George SYKES USV
Brig. Gen. Thomas A. DAVIS USV
Col. W. R. DAVIS 16th Kansas Volunteer Cavalry
Capt. E. P. ELMEN Co K, 2nd Colorado Volunteer Cavalry
Capt. A. WRISBERG Co D, 2nd U.S. Volunteer Infantry
1st Sgt Samuel W. WADE Co A, 2nd U.S. Volunteer Infantry
Maj. J. N. MC ELROY Judge Advocate USA
Judge Advocate of the Court

The court then proceeded to the trial of Oren A. CURTIS, Captain, Co “F”, 15th Kansas Volunteer Cavalry, who was brought before the court and having heard the order appointing the court read, was asked if he had any objection to any member named in the order, to which he replied that he had not.
The court was then duly sworn by the Judge Advocate and the Judge Advocate was duly sworn by the President of the Court, both in the presence of the accused.

The accused then asked permission to introduce Maj. Allen BLACKER as his counsel, which was granted and he appeared as counsel for the accused.

The accused was then duly arraigned on the following charges and specifications which were read aloud in his presence. Viz.

Charges and Specifications preferred against Oren A. CURTIS, Captain of Company “F”, 15th Kansas Cavalry Volunteers.

Charge I – Murder
Specification: In this: that he, Oren A. CURTIS, Captain, Company “F” Fifteenth Regiment, Kansas Volunteers Cavalry, having in his custody three citizens, did willfully (and with malice aforethought) kill (and murder) said citizens – names unknown – by hanging them, the said citizens, by the neck until dead. This near Cane Hill, State of Arkansas, on or about the 12th day of November, 1864.

Charge II – “Defrauding the Government of the United States”
Specification: In this: that he, the said Oren A. CURTIS, Captain, Company “F” Fifteenth Regiment, Kansas Volunteers Cavalry, having in his charge a large amount of property seized by the United States. Viz: work oxen, wagons, saddles, beds, bedding and other property, did knowingly and willfully misappropriate to his own use and dispose of said property with intent to defraud the United States. This at or near Fort Scott, Kansas, on or about the twentieth day of November, 1864.

Charge III – “Conduct to the prejudice of good order and military discipline”
Specification 1st: In this: that he, the said Oren A. CURTIS, Captain, Company “F” Fifteenth Regiment, Kansas Volunteers Cavalry, leaving his post and colors without authority, did enter private houses and enclosures, plundering and pillaging the same and taking there from private property. This on the march from Cane Hill, Arkansas to Fort Scott, Kansas in the month of November, 1864.

Specification 2nd: In this: that he, Oren A. CURTIS, Captain, Company “F” Fifteenth Regiment, Kansas Volunteers Cavalry, did permit the enlisted men under his command to leave their ranks and colors to plunder and pillage. This on the march from Cane Hill, Arkansas to Fort Scott, Kansas, in the month of November, 1864.

Signed: J. N. MC ELROY

Judge Advocate USA

To which charges and specifications the accused pleaded as follows:

To the specification under Charge I Not Guilty
To Charge I Not Guilty

To the specification under Charge II Not Guilty
To Charge II Not Guilty

To specification I under Charge III Not Guilty
To specification II under Charge III Not Guilty
To Charge III Not Guilty

C. O. SMITH
Captain, Company. “G”, 15th Kansas Volunteer Cavalry, a witness on the part of the prosecution was duly sworn in presence of the accused and examined.

By the Judge Advocate

Q. Were you with your command in November 1864?
A. I was.

Q. Where were you on or about the 12th of November, 1864?
A. I think, as near as I can remember, I was in the neighborhood of Cane Hill, Arkansas.

Q. Did you see the accused at that time?
A. Yes sir.

Q. State what occurred there, within your knowledge, with regard to the execution of 3 certain citizens.
A. On the other side of Cane Hill, there were three prisoners in the command. There were taken, I think, about 7 miles and one of them was hung about a mile, I think, from where we camped, and the other two were hung about two miles this side of where the first one was hung. The accused took them out from the head of the column and hung them.

Q. Do you know what the character or status of these men was who were hung?
A. Only from the general impression of the officers there, that they were bushwhackers.

Q. Do you know where the accused executed these parties on his own motion?
A. I think not.

Q. Do you know where he did or not?
A. Maj. LAING, who was in command of the Regiment, called the accused to him. He went to the head of the column and Maj. LAING and he had some conversation which I did not hear.

Q. You don’t know what transpired between them then?
A. No sir.

Q. All you know about the transaction was that the persons were in the custody of the accused.
A. Yes sir.

Q. And were executed by him?
A. Yes sir.

Q. Did you see the accused on the march from Cane Hill to Fort Scott?
A. Yes sir.

Q. What duty was he on?
A. He was in command of an ox train. He had charge of the oxen and wagons which were picked up along the road.

Q. Were they seized?
A. Yes sir.

Q. What did these wagons contain?
A. Principally forage.

Q. Did you see any other property in them?
A. I saw in some of the wagons cooking utensils and the men’s blankets.

Q. Did you see any saddles?
A. I don’t recollect seeing any but Government saddles.

Q. Were there beds or bedding that did not properly belong to soldiers?
A. Yes sir, I saw some beds.

Q. Do you know what became of that ox train and the property it contained after its arrival at Fort Scott?
A. I can’t say that I do. After it got to Mound City, there was a list handed to Capt. THOMPSON by the accused, said to be of all the things in his possession, and a detail was made to look up the teams not accounted for. The teams, after they got to Fort Scott were used by the different companies to haul their extra saddles and their blankets to their different stations..

Q. Then you know nothing of what disposition, if any, was made by the accused of these teams and property?
A. Not of my own knowledge

Q. You say you saw the accused frequently on the march?
A. Yes sir.

Q. Did you see him straggling from his command or entering private house or enclosures?
A. Not that I remember. The accused was frequently detailed with his company during the march.

Q. For what purpose?
A. I could not say.

Q. To leave the column?
A. Yes sir.

Cross-Examination
By the Accused

Q. You state the accused was frequently detailed with his company to leave the column?
A. Yes sir.

Q. Do you know of more than once?
A. Yes sir, several times, but I could not enumerate them.

Q. Do you know on what duty he was detailed?
A. No sir.

Q. Do you know by whom he was detailed; whether by Col. JENNISON, commanding the Brigade, or by Maj. LAING, commanding the Regiment?
A. He was usually detailed by an orderly, sometimes from Maj. LAING and sometimes from Lt. Col. HOYT.

Q. State the manner of the execution of these men – the first one hung.
A. I heard Maj. LAING say they drew lots to see which one should be hung.

Q. I desire to know if it was conducted with the ordinary solemnities of an execution?
A. I can’t say that it was. That man was taken from the head of the column.

Q. Was the column halted?
A. Yes sir, while they were taking the man out and then it passed and the man was not hung until after my company passed.

Q. Do you know for what purpose the command was halted?
A. I do not.

Q. Judging from the circumstances, what, in your opinion, was it halted for?
A. I thought it was to witness the execution.

Q. Do you know of the accused being sent for by Maj. LAING?
A. I heard Maj. LAING call him.

Q. When Maj. LAING called the accused, in whose possession was the prisoners?
A. In the possession of Maj. LAING, at the head of the column.

Q. Where was the accused at the time Maj. LAING called him?
A. I think he was abreast of the right of his company.

Q. Where was his company in the column?
A. I think it was immediately in front of mine, though I am not positive.

Q. Do you know anything about these three men?
A. Nothing but what I heard – the current rumor.

Q. Were you present at an investigation of their cases?
A. No sir.

Q. Do you know of an investigation being had the night previous to them being hung?
A. Not of my own knowledge.

Q. Was your company attacked at that place by bushwhackers?
A. No sir.

Q. Was any portion of your company?
A. No sir.

Q. Was any horses of your company shot at that place?
A. No sir. There was a horse of the 15th Regt, belonging to another company, shot about three or four hundred yards from my camp.

Re-Examination
By the Judge Advocate

Q. The accused asked you to describe the manner of the execution of the first man hung. Do so now.
A. When the accused was called and reported to Maj. LAING, the column halted for two or three minutes, and the accused took the prisoner from the head of the column to the right of the road, some three or four rods to a tree and the column moved on, and the accused was fixing the rope over him as I passed. I did not look around to see the man hung, but after I passed, someone remarked that he was hung and I looked back and saw him hanging. That is the ceremony as near as I remember.

By the Court

Q. Were these prisoners, to your knowledge, tried by any court or commission or drum-head court martial?
A. No sir. I did not see the prisoners until we marched that morning.

Q. Was any sentence of execution read to them from any authority at all?
A. Not that I know of

Q. Do you know where these men came from?
A. Only from hearsay

Q. How came they in possession of the troops?
A. The evening before these men were executed, I had understood that Lt. SMITH had been shot and I went to headquarters to learn the truth about it, and just as I got to the gate, Col. JENNISON called to a woman who was there and asked where her husband was. She said she did not know, but that she could find him. He said she must go and find those men who were in the bush and have them report to him before daylight or, to use his own words, he would strip them as “bare as a bird’s arse”. She took off some part of her clothing, her bonnet or cloak, and handed it to another woman who was standing there, and told her to take care of it, and to tell her mother, if she did not get back not to be alarmed, as she could take care of herself. The next morning I heard that two men had given themselves up and that the pickets had taken one and I saw three men start from Col. JENNISON’S headquarters, which corresponded with the number I heard was taken.

Q. Were these the three men who were executed?
A. Yes sir.

Q. Was any other officer present at the execution of this man, besides the accused?
A. No sir.

Q. Had these men any uniform of any kind on?
A. No sir.

Q. Were they taken in arms?
A. Not that I know of, I did not hear they were.

By the Accused

Q. Was not Maj. LAING where he could see all the men executed at the time when the execution took place?
A. Yes sir.

Q. Did not all the company officers see the execution in both instances?
A. I think they could have seen it.

The witness then retired.

Tyrus L. HURD
Captain Co “D”, 15th Kansas Volunteer Cavalry, a witness on the part of the prosecution was duly sworn, in presence of the accused, and examined.

By the Judge Advocate

Q. Do you know the accused?
A. I do.

Q. Were you with your command on what is known as the Price campaign?
A. I was.

Q. Where were you on or about the 12th of November last?
A. Between the Arkansas River and Cane Hill.

Q. Did you see the accused there?
A. I did not.

Q. Have you any knowledge of three persons being executed about that time?
A. No personal knowledge. I did not see them executed, nor after they were executed.

Q. Do you know anything of the capture of three citizens by our troops there?
A. I know of two citizens being taken.

Q. Do you know where they were taken in arms or not?
A. I do not.

Q. Did you see them yourself?
A. I did, after they were taken.

Q. Were they dressed in citizen’s clothing?
A. Yes sir

Q. You know nothing of what became of them afterwards?
A. No sir.

Q. Did you see the accused on the march from Cane Hill to Fort Scott?
A. I did several times.

Q. What duty was he on?
A. The first duty I know of his being on, he was in command of a train of refugees and the train belonging to the regiment.

Q. What did it consist of?
A. Mule teams and cattle.

Q. Any work oxen?
A. Yes sir, attached to wagons.

Q. Do you know what the wagons were loaded with?
A. I do not. I saw ordnance stores, such as saddles and camp equipage of the men.

Q. Did you see any bedding?
A. Yes sir.

Q. What kind of bedding?
A. Blankets and I think I saw a featherbed.

Q. Was it plunder generally, such as would be taken from private houses?
A. I only saw the wagons as they were passing along the road. I never saw them unloaded at all. I saw them on the march and standing at different camps.

Q. Do you know what became of that property?
A. No sir.

Q. You don’t know what disposition was made of it at Fort Scott?
A. No sir.

Q. Did you on that march see the accused straggling from his command?
A. I never saw him off the line of march.

Q. Did you ever see him enter private houses or enclosures?
A. No sir.

Q. Did you ever see on his person any private property?
A. No sir.

Q. Did you ever see any enlisted men whom you knew to be men under his command straggling from the command?
A. I never did. I am but very little acquainted in his company, and never noticed them. I was off the road but twice on the trip and I did not see any of his men at those times.

Q. Do you know of any court or commission or investigation being had near Cane Hill for the investigation of the cases of the prisoners taken there?
A. There were several officers at a house where these two citizens taken were examined. The citizens were examined before those officers, but whether it was called a court or not, I don’t know. I was present at the investigation.

Q. Was any order calling a court or commission read?
A. Not while I was present.

Q. And yet the investigation went on?
A. I was not there the whole time. I entered after the prisoners were in the room.

Q. State what occurred.
A. I entered for the purpose of making some inquiries and this investigation was going on and I took a seat. The officers were sitting around the room carelessly, as if taking their ease, but seemed to be interested in what was going on.

Q. Do you know whether they were sworn or not?
A. I do not.

Cross-Examination
By the Accused

Q. Do you recollect what was said there to show that these men were bushwhackers?
A. I can’t give all of the examination, which lasted, while I was in the room, from three quarters of an hour to an hour. The men were first asked if there was a gang of guerrillas or bushwhackers in that neighborhood. They replied there was none – no such thing as bushwhackers – equivocating on the name. They were then asked if there was a band of regular Confederate soldiers about there. They seemed to equivocate in their answer, but gave us to understand there were no such. On being cross questioned, he said there was such a band there in that vicinity, giving the names of some of them. On being asked if they ever stopped with him, he said they did not. On being cross questioned, he said the day before a number did stop and take dinner with him – 8 or 12, I don’t remember which.

Q. Was it stated to what command of bushwhackers these 8 or 12 men belonged?
A. It was and, if I remember rightly, they belonged to Brown’s Gang.

Q. Buck BROWN’S?
A. Yes sir.

Q. Do you recollect what statements Lt. Col. HOYT made in regard to finding arms secreted on the premises of these men?
A. I don’t remember who it was, but I heard someone make the remark that arms and ammunition had been found in the house. It was the next day after the investigation I heard that remark.

Q. Do you know where the prisoners were from the time of this investigation until they were executed?
A. I do not.

Q. I will call your attention to the wagon train and ask you to state what control the accused had over the plunder in the wagons.
A. No more than a wagon master would have over a train assigned to him through the day. At least that is my understanding.

Q. Who did have control over that plunder?
A. I suppose the company commanders did. I don’t know.

Q. What was the custom at night, when the camp was reached?
A. The wagons were taken to the camp fires of the different companies.

Q. Can you specify the places between which the accused had charge of that train?
A. The first time I knew the accused having anything to do with the train was between Fayetteville and Newtonia. He was left to bring up some refugees between Fayetteville and Newtonia. I don’t recollect where on the road; I don’t know but it was between Fayetteville and Bentonville and I know there was a great deal of anxiety felt among the officers, because he did not come up as soon as expected.

Q. During that time, who was in command of his company?
A. I can’t tell.

Q. Can you tell whether or not he was in command of it?
A. I think he had a portion of his company with him, but am not certain.

Q. What became of the wagon train after you reached Fort Scott?
A. I do not know. I never saw it after the next day after we reached Fort Scott. It was then in camp, at that place.

Q. Do you know what became of the accused after the command reached Fort Scott?
A. I am not certain, but I think he first went to Mound City and then was ordered back. Or he may have been left at Fort Scott. I remember of his being there. I am not positive where he went.

Q. Did your company have any of these wagons?
A. It did not.

Q. Did your men use any of them?
A. They did not.

Re-Examination
By the Judge Advocate

Q. How many wagons were generally used by those companies which used wagons?
A. I do not know exactly. I think I have seen from one to two wagons at a company.

Q. You saw this train camped at Fort Scott after you arrived there?
A. Yes sir.

Q. Under whose charge was it then?
A. I do not know.

By the Court

Q. Do you know whether any of the wagons in this train were assigned to the accused for the use of his company?
A. I do not.

Q. Did you see any go to the camp fires of his company?
A. I did.

Q. Then the supposition was they were assigned to his company?
A. I don’t know of any being assigned to the different companies. I only know the wagons went to the different camp fires.

Q. Do you know the loading of those wagons you saw at the accused’s camp fires?
A. I do not. I went to his camp at one time to borrow a saddle and I noticed his wagons were loaded with saddles, saddle blankets and some quilts, obtained, I suppose, as some were obtained for my men.

Q. How was that?
A. The men had lost their blankets in the early part of the campaign and I gave orders to one of my sergeants to get the men each two blankets from the dwelling along the road to make them comfortable.

Q. Were they taken from private houses?
A. Yes sir, that was my orders and I saw there was but that amount taken.

Q. At the time you saw the quilts in the wagon which had the accused’s saddles in, did you see other property there than Government property?
A. No sir, I saw nothing by those things.

The witness then retired.

Henry GRONHEIM
1st Lt, Company “L”, 15th Kansas Volunteer Cavalry, a witness on the part of the prosecution was duly sworn in presence of the accused and examined.

By the Judge Advocate

Q. Do you know the accused?
A. I do.

Q. Were you with your command – the 15th Kansas Volunteer Cavalry – on the Price campaign?
A. Yes sir.

Q. Where were you on or about the 12th of November, 1864?
A. Near Cane Hill.

Q. Did you see the accused at that time?
A. Yes sir.

Q. Do you know anything of three persons being hung about that time near Cane Hill?
A. Yes sir. I saw three men hanging – two to a gate post and one to a tree.

Q. Who hung them?
A. I do not know.

Q. Did you see the execution?
A. No sir.

Q. Did you see those persons when they were captured by the troops?
A. I did not.

Q. Do you know of any order convening a court or commission for the investigation of the cases of prisoners near Cane Hill?
A. I never saw any order, and don’t know that there was one issued.

Q. Did you see the accused frequently on the march from Cane Hill to Fort Scott?
A. Yes sir.

Q. What duty was he on?
A. To the best of my knowledge, he was with the command, with his company.

Q. Was he in charge of a train?
A. I saw him after that, nearly every day in charge of an ox train.

Q. Was it composed of teams seized by the Government?
A. I do not know.

Q. Do you know what the wagons were loaded with?
A. Not particularly – some blankets and some bedding.

Q. What kind of bedding?
A. Private bedding – feather beds. I did not know who it belonged to.

Q. Did you ever see the accused straggling from his command during that march?
A. I did not.

Q. Di you ever see him enter private houses or enclosures?
A. I did not.

Q. Would you recognize men of his company if you saw them?
A. Yes sir.

Q. Did you ever see men of his company straggling?
A. No sir. I never was off the road.

Q. Did you ever see the accused’s company wagons unloaded in camp.
A. No sir.

Q. Did you know what wagons in the train belonged to other companies?
A. No sir, I did not know who any of the wagons belonged to.

Q. You know nothing of the execution of these persons near Cane Hill, except that you saw them hanging?
A. That is all.

The witness then retired.

John SANDERSON
Private, 1st Colorado Battery, a witness on the part of the prosecution was duly sworn in presence of the accused and examined.

By the Judge Advocate

Q. Do you know the accused?
A. Yes sir.

Q. Were you with your command in the campaign against Price?
A. Yes sir.

Q. Where were you on or about the 12th of November, 1864?
A. At Cane Hill

Q. Do you know of any persons being hung there about that time?
A. Yes sir

Q. Who were they?
A. I did not know the parties.

Q. Were they citizens or soldiers?
A. Citizens, I judged – they were dressed that way.

Q. State all you know about the execution of these persons.
A. I had got behind my command and rode up to the advance of the 15th Kansas – about 150 men, Maj. LAING in command. As I came up beside them, the accused and two men were preparing to hang two men. I was ordered to dismount and assist them and I did so. After they were hanged, Maj. LAING came up and passed along.

Q. How many men were hung?
A. Two

Q. Who ordered you to dismount?
A. The accused ordered all the men there to dismount.

Q. Was any order for the execution of these men read to them by the accused at that time?
A. Their hands were tied at the time I came up and I did not hear any.

Q. Did these persons say anything to the officers or men before they were executed?
A. They said they were innocent; that they knew nothing about bushwhacking. When Maj. LAING came up with the command, he said “Boys, they have pretty good hats. You had better take them.” And they took their hats and coats.

Q. Do you know anything of the hanging of the third man?
A. No sir

Q. Did you see the accuser on the march from Cane Hill to Fort Scott?
A. Yes sir

Q. Did you see him in charge of a train?
A. Yes sir

Q. What did the train consist of?
A. It was an ox train.

Q. What were the wagons loaded with?
A. I don’t know. There were some refugees and some bedding.

Q. Did you ever see the accused straggling away from his command on that march?
A. No sir

Q. Did you ever see him enter private houses or enclosures on that march?
A. I don’t know that I did.

Q. Would you recognize the men of his company?
A. Yes sir

Q. Did you ever see any of the men of his company straggling or entering private houses or enclosures?
A. I don’t know that I ever did

Cross-Examination
By the Accused

Q. Can you state whether this bedding belonged to refugees or was taken as plunder?
A. I could not say. I understood it was taken as plunder.

Q. Were there refugees along in the train?
A. Yes sir. I did not know them. They were coming to Fort Scott – women generally.

Q. Repeat what the accused said to you as you came up to where the two men were being executed.
A. He did not direct his remark to me more than to others. He ordered the men to dismount and help hang them, saying they were damned bushwhackers. I saw they were and dismounted and helped.

Q. Were not men detailed from the accused’s company, who came up just as you did?
A. I understood so. I did not hear the detail made, but some of his men came up then.

Q. Might he not have been addressing his remarks to them alone?
A. Yes sir

Q. He gave the order to those who came up with you and you dismounted?
A. Yes sir

Q. Did you see any of the prisoners taken from the tail of Price’s Army at any time on that campaign?
A. Yes sir

Q. How were they dressed?
A. In jeans clothing, principally.

Q. Did these men who were hung have any resemblance to the men of Price’s Army?
A. These men appeared to be older, though they all looked pretty near alike as far as appearance was concerned.

Q. Do you know what became of the accused after he reached Fort Scott?
A. I understood he went to Mound City.

Q. Do you know anything about it?
A. No sir
By the Court

Q. What would be your judgment as to the ages of these men who were hung?
A. I think one was about 60 and the other about 40 years old.

Q. Who adjusted the rope to hang these men?
A. The accused

Q. Who turned the prisoners over to the accused?
A. I do not know.

The witness then retired.

John M. LAING
Major, 15th Kansas Volunteer Cavalry, a witness on the part of the prosecution was duly sworn in presence of the accused and examined.

By the Judge Advocate

Q. Were you with your command on the Price campaign?
A. I was

Q. Where were you on or about the 12th of November, 1864?
A. I could not specify dates.

Q. Were you at or near Cane Hill about that day?
A. Yes sir, I think I was.

Q. Do you know of three persons being hung near Cane Hill about that time?
A. Yes sir

Q. Can you state what part the accused took in the execution of these men?
A. He was detailed by an order of mine, coming from Col. JENNISON, to hang these men in retaliation for the killing of two of our men and the wounding of another one, we supposed mortally.

Q. Do you know where these men were captured?
A. Two were brought in by their sisters or wives and one run on our pickets or at least was captured by them.

Q. Was there any court martial or investigation had on the cases of these men?
A. Yes sir

Q. By whose order was the investigation had?
A. I do not know.

Q. Do you know if there was any order?
A. I do not

Q. What officers made the investigation?
A. I could not tell who made the investigation – all asked questions.

Q. Were you present?
A. Yes sir

Q. Was any order read convening the commission or board from any authority whatever?
A. I heard none

Q. Were the officers making this investigation sworn?
A. I did not see them sworn.

Q. Were those parties making statements at that investigation sworn?
A. I did not know that they were.

Q. Was any order or execution read to these men before they were hung?
A. No sir

Q. How were they dressed – as citizens or soldiers?
A. As citizens

Q. Did they have any arms when captured?
A. I did not see any.

Q. What means were taken to get these men?
A. Col. JENNISON notified certain parties if these men were not brought in, their houses would be burned down. They immediately started and in the course of a few hours, these two men were brought in. The other one I know nothing about, except that he was captured.

Q. Why were these two men pointed out by Col. JENNISON to be brought in?
A. A report was brought in that one of our officers had been shot, and Col. JENNISON was very much excited. We had received information from certain persons that some of Col. BENTEEN’S men had also been shot along there, and all together induced Col. JENNISON, I suppose, to give the order.

Q. Do you know of any evidence he had as to the identity of these men?
A. Nothing but the confession of one of their wives that Buck BROWN made their house a stopping place for his command.

Q. Did you see these men hung?
A. I did not. I saw them hanging.

Q. Did you see the accused frequently on the march?
A. I did

Q. What duty was he on?
A. Commanding Company “F”, 15th Kansas Volunteer Cavalry

Q. Was he detailed for any special duty on that march?
A. He was on certain kinds of duty. I don’t know that he was detailed. I got no orders in writing nor did I give any.

Q. What duty was that?
A. He had charge of the ox train and wagons and refugees.

Q. By whose order was he put on that duty?
A. I could not say.

Q. Was he looked on as responsible for that property?
A. He was put in charge of it to take care of it only.

Q. Was he in charge of it until you arrived at Fort Scott?
A. Yes sir

Q. Do you know what then became of it?
A. The cattle were turned over. The wagons I don’t know anything about.

Q. What were the wagons loaded with?
A. Principally with refugee families and their bedding.

Q. Did you see the accused straggling from his command at any time on that march?
A. No sir, but on the contrary, he stayed with his command in the column.

Q. Would you recognize his men?
A. Yes sir

Q. Did you ever see any of them entering private houses or enclosures?
A. I could not say; I saw a good many men straggling but I could not say what companies they belonged to.

Q. Did you ever see the accused enter private houses or enclosures?
A. I did not.

Cross-Examination
By the Accused

Q. Where was this investigation had?
A. In a house at the foot of Cane Hill on the left had side, coming this way.

Q. How long before had BENTEEN’S command passed through Cane Hill?
A. Just ahead of us; probably a half a day or a day.

Q. Was any portion of your command attacked by bushwhackers?
A. Two men were killed and one wounded and some horses were wounded.

Q. Did you receive reports of any band of bushwhackers being in the neighborhood at that time?
A. Yes sir

Q. On these facts being made known to Col. JENNISON, this investigation was made of these men after they were produced?
A. Yes sir

Q. Did these men resemble other men taken from the tail of Price’s Army?
A. Yes sir

Q. You stated in your examination in chief these persons were not found with arms on their persons.
A. Yes sir

Q. State if you took these men
A. I did not

Q. Can you state who did?
A. I can not. They came themselves in company with two or three females to the house where we were stopping. That was the first I saw of them.

Q. Who had possession of these prisoners from the time they were produced to Col JENNISON up to the time they were delivered to the accused for execution?
A. They were in the advance, with the 15th Regiment.

Q. Under whose charge?
A. They were with me.

Q. Did the accused have anything to do with them until he was detailed by you to execute them?
A. No sir. He left the command for that one purpose at that time.

Q. When these men were executed, was the command halted?
A. I think in one instance it was.

Q. After the arrival of the command at Fort Scott, what particular duty was the accused detailed on; and to what point did he proceed?
A. I don’t know of his being detailed for any purpose. I don’t remember it now, at least.

Q. Was he not ordered to go to Bainesville with his company?
A. Yes, I ordered him to go myself.

Q. At that time, what became of this wagon train and plunder?
A. I think it was turned over.

Q. Did you see the accused’s column when preparing to start?
A. Yes sir

Q. Did he take any part of this train or plunder with him?
A. I think he had one wagon or perhaps two with refugees who wanted to settle at Bainesville.

Q. Did the wagons belong to these refugees?
A. I think one belonged to an old man who was along. I understood it to be so.

Q. On the march up, did the accused have any control of the property in the wagons?
A. Not that I know of.

Q. Who did have control?
A. The stuff in the wagons, I understood, belonged to the refugees.

Q. When the command would halt at night, what became of the wagons? Were they parked together or were they distributed with the different companies?
A. The train was in charge of the accused and I never noticed it. He took care of it himself and I could not tell whether it camped within one or two miles of our camp.

Re-Examination
By the Judge Advocate

Q. Did the accused, when he marched from Fort Scott to Bainesville, carry his company property in these wagons?
A. I do not know what the wagons contained beyond certain bedding or stuff.

Q. What was that?
A. I took it to be bedding. I know there was a sick woman along and I saw a great amount of bedding in her wagon and stuff that looked like it in the other. I imagined, of course, the accused had his stores in the wagons.

By the Court

Q. What were the terms of the order you received from Col. JENNISON and where did you receive it?
A. I received it at a white house at the foot of Cane Hill, on the left hand side of the road, coming this way. His orders were to hang these men in retaliation for two men of ours shot and one wounded and to hang them as near as I could find out on the spot where our men were shot.

Q. You having been in command frequently of the regiment, was it customary for your officers to obey all orders, whether legal or illegal?
A. Technically, this was an illegal order. Whether it is customary to obey all such orders or not, I don’t know. I know I have been guilty of it myself.

Q. You testify that some women went out to bring in certain men to save their homes from being burned. Did not the fact of their coming in convince you they were not bushwhackers?
A. My opinion differed from others. I have been in this war near four years and have always treated prisoners with proper respect. I did not think they were bushwhackers, but I was a subordinate officer and had but little voice in their destiny.

Q. What is the custom of the accused in regard to any order given him?
A. To obey

The witness then retired.

James KETNER
Major 16th Kansas Volunteer Cavalry, a witness on the part of the prosecution, was duly sworn in presence of the accused and examined.

By the Judge Advocate

Q. Were you on the march with the 1st Brigade, Army of the Border, from Cane Hill to Fort Scott in November last?
A. I was

Q. Did you on that march see the accused?
A. I saw him frequently.

Q. What duty was he on?
A. He was in charge of an ox train that had been gathered up.

Q. What were the wagons loaded with?
A. Various things – feather beds, bed clothing, household furniture, etc.

Q. Can you specify any of the property you saw in those wagons?
A. I saw feather beds, pillows, sheets, bed quilts, spreads and blankets. I don’t remember anything else.

Q. Were any refugees in that train?
A. There were, I think, four families.

Q. How many ox wagons were there, besides those used by the four families?
A. I think I counted eleven wagons all together and my impression is that each family had one wagon.

Q. Did you know which one of those wagons in the train belonged to the accused’s company?
A. I did not

Q. Did you see any of these wagons unloaded at the camp fires of his company?
A. I never did

Q. Was the accused in charge of this train until its arrival at Fort Scott?
A. He was in charge of it until the arrival of the Brigade at Drywood. After reaching there I know nothing about it.

Q. Did you see the accused straggling from his command on that march?
A. I have no recollection of seeing the accused away from the ox train.

Q. Did you see him enter any private houses or enclosures?
A. No sir

Q. Would you recognize the enlisted men of his company, if you would see them?
A. I don’t think I would.

Q. Did you ever see any of this private property or plunder in the private possession of the accused?
A. No sir, I did not. I never saw the property except in the wagons.

Q. Do you know what became of this property after the arrival of the train at Fort Scott?
A. I did not see the wagons come to Fort Scott. The last I remember of seeing them was at Drywood and I know nothing of what became of it.

Cross-Examination
By the Accused

Q. Do you know of any instance in which the accused made men who claimed plunder give it up to the person who owned it?
A. I know of one instance. I was on the return march, at a house on the road side. I think probably about a mile and a half this side of Bentonville, one of the accused’s men in company with others had taken out of a house a feather bed and some bed clothing. The lady of the house came to me and pointed out one of the accused’s men who had a bed quilt of hers in his possession and the accused made him give it back. As to the feather bed, I heard it was thrown off the wagon.

Q. By the accused’s order?
A. I understood so. I saw nothing of it.

Q. Did you have a conversation with the accused in which he stated he did not approve such work as was going on in the 15th Regiment?
A. I have an indistinct recollection of a conversation with the accused, but I can’t state it. It is my impression, however, that the accused spoke to me about that.

Re-Examination
By the Judge Advocate

Q. You say in this one instance you did see some of the accused’s company with private plunder coming out of a house. Is there any other instance in which you could identify any of his men?
A. There is no other instance.

Q. Do you know that the accused ordered the restoration of this property?
A. After the lady appealed to me to have her property returned to her, one of the accused’s men was passing me on his horse. I ordered him to halt and he gave me some impudence – that he didn’t belong to my command and would not obey me. I drew my cane on him and just then the accused rode up and told me not to hit him, that he was one of his men. I told him he must return the quilt to the lady, and the accused ordered him to return it, and the man threw it off.

Q. Then it was actually done in obedience to your order.
A. I ordered him and then the accused ordered him. Whether or not the accused was influenced in his action by my order, I do not know.

The witness then retired.

The Judge Advocate then announced the prosecution closed.

The accused asked time to prepare his defense, which was granted, and the Court adjourned until 10 o’clock a.m. Tuesday, March 28, 1865.