The Kansas in the Civil War Message Board

Capt. Oren Curtis court martial part 3

Q. Did you have a conversation with the accused at or near Bentonville in regard to the pillaging which was going on in the command?
A. I had a conversation with him in regard to that matter. I don’t remember where it was.

Q. What was that conversation?
A. We were speaking of the indiscriminate robbing and burning and we both expressed ourselves opposed to it – to the manner in which it was being done.

Q. Did you on that march, see the accused engaged in any act of pillaging?
A. I don’t remember that I did see him engaged in any act.

By the Judge Advocate

Q. You say you never saw the accused in the act of pillaging; did you ever see him in the possession of any plunder?
A. Yes sir

By the Court

Q. State what it was you saw him in possession of.
A. I saw him in possession of a mule he had got on the trip. He told me he had a pair of them.

Q. Anything thing else?
A. I don’t remember seeing him with anything else in his possession.

Q. Did he claim these mules as his own?
A. Yes sir

Q. Had they been taken from citizens?
A. They had been taken on the trip somewhere. He told me at the time where he got them, but I don’t remember now. It was as we went down.

By the Accused

Q. You use the word “taken”. Do you mean to say you know anything in regard to how the accused came in possession of those mules?
A. Only as he told me.

Q. Did he not state that he purchased those mules on the road down?
A. No sir, he did not.

The witness then retired.

The accused introduced an affidavit asking that Brig. Gen. John MC NEIL be subpoenaed as a witness for reasons therein set forth and which affidavit is appended hereto, marked “B”.

The Judge Advocate admitted that Gen. MC NEIL would, if present, swear to the facts set forth in said affidavit.

1st Lt. And Adjutant, 15th Kansas Volunteer Cavalry, a witness for the defense was duly sworn in presence of the accused by the Judge Advocate and examined).

By the Accused

Q. Were you present at Cane Hill on or about the 12th of November last, when three men were executed as bushwhackers?
A. I was not

Q. Do you know the names of either of those men of your knowledge?
A. I know the name of one of them. His name was BUCHANAN. At lease, he gave his name as BUCHANAN. That is all I know about it.

By the Judge Advocate

Q. Who did he give his name to as BUCHANAN?
A. To Lt. Col. HOYT and to Col. JENNISON, I believe. I am not certain. To Maj. KETNER and, I think, Dr. DAVIS and I don’t know how many more. There were several.

By the Court

Q. Do you know whether this person who gave his name as BUCHANAN had any particular reputation in that county?
A. I don’t know anything about his reputation. I know he was brought in out of the brush.

Q. Do you know whether or not he was the owner of the house where those officers were assembled?
A. He said he was.

Q. Did you hear the name of any of the others?
A. Yes sir. I heard the name of one of the others but I don’t remember it. BUCHANAN seemed to be thee spokesman and I paid more attention to him.

Q. What kind of a looking man was he?
A. He was a large man. He would weigh, I think, 200 pounds.

Q. Did you hear any of the other men called by the name of LEACH?
A. Yes sir. That is the name I was trying to remember. He was a tall slim man and younger than BUCHANAN.

Q. Do you know whether this man who said his name was BUCHANAN had a reputation of being a bushwhacker?
A. I knew nothing of him previous to that time.

Q. What was your impression from all you heard and saw of this transaction as to the character and occupation of these three men?
A. The impression I had of them at the time, from the circumstances connected with them, was that they were bushwhackers or were men who had dropped off from Price’s army and were lurking around in the brush or about home.

Q. Then your opinion was not very definite?
A. It was not. We had to form opinions partly from questions asked then and their answers. There were asked if there were any arms about the house and they said there were not. One of the officers looked down between the walls of the house and found two guns, some caps and some powder.

Q. Why did you think they were men who dropped off from Price’s Army?
A. Because they looked ragged and torn and looked as if they had been through a campaign, especially LEACH.

Q. There was no evidence that identified these men as bushwhackers in the absolute sense of the term?
A. I know nothing of that.

Q. Do you know BUCHANAN’S occupation?
A. I do not.

On account of the absence of material witnesses for the defense, the court adjourned until 10 a.m. March 30th, 1865.

Fort Leavenworth Kansas

10 a.m. March 30, 1865

The Court met pursuant to adjournment.


The same members at the last session. The Judge Advocate, the accused and his counsel were also present.

The proceeding of the last session were read and approved.

Private, Company “F”, 15th Kansas Volunteer Cavalry, a witness for the defense was duly sworn in presence of the accused by the Judge Advocate and examined.

By the Accused

Q. Did you have charged of the prisoners executed at Cane Hill on or about the 12th of November last?
A. I did, sir.

Q. Did you take these prisoners by order of Maj. LAING to the accused, conveying an order from Maj. LAING that these men should be executed.
A. I carried an order to the accused. I did not take the prisoners back. The accused refused to obey the order unless he got a written order or an order in person. Afterwards, the accused rode to the front with me.

Q. Did the accused go to the front by order of Maj. LAING or on his own motion?
A. He went of his own motion, I think. He rode to the front with me after I gave the order.

Q. How long after you delivered the order to him did he start to the front?
A. I hardly recollect. It was a few minutes.

Q. Can you state whether, during that time, Maj. LAING called the accused to come to the front?
A. I cannot

By the Court

Q. Were you present during the whole transaction embracing the execution of these men?
A. I was

Q. If the accused to obey the order when you took it to him, how did it happen that he obeyed it subsequently?
A. When I gave him the verbal order, he refused to do it until he got an order in person from Maj. LAING. Afterwards, he went to the front and got an order in person.

Q. Did you hear Maj. LAING give him the order when you went to the front?
A. Yes sir

Q. How did it happen that you – a private – carried this order to the accused, when there were officers and non-commissioned officers present?
A. I was a non-commissioned officer at that time. I was a sergeant in charge of the guard over the prisoners.

By the Accused

Q. State who was officer of the day the day before these men were executed?
A. The accused was.

Q. Was the guard regularly detailed from the headquarters of the regiment?
A. Yes sir

By the Court

Q. What were your orders when you took possession of these men and who did you receive them from?
A. I received instructions from Maj. LAING, in command of the regiment at that time. I was not to suffer the prisoners to escape. I don’t remember word for word.

Q. Was it to keep them with the column or to halt them at any particular place?
A. To keep them with the head of the column.

Q. Do you know whether or not any mules not belonging to the Government came in the possession of the accused on the Price raid?
A. I think he purchased some.

Q. Do you think, or do you know anything about it?
A. I know he had some mules in his possession and supposed he purchased them.

Q. What led you to suppose that?
A. I think I first got it from some member of the company.

Q. Did you see any money paid for the mules?
A. I did not.

Q. Do you know, from any source whatever, that money was paid for these mules?
A. I do not.

Q. Do you know where these mules are now?
A. I do not. I know where they were.

Q. Where did you last see them?
A. In Miami County, Kansas

Q. In whose possession?
A. I think in the possession of a man named WISE.

Q. When did they come in his possession? How long after the raid?
A. I don’t recollect how long after – a few weeks.

Q. How did they get in the possession of WISE?
A. I cannot state how they got there.

The witness then retired.

Captain and Assistant Quarter Master, USV, a witness for the defense was duly sworn in presence of the accused by the Judge Advocate and examined.

By the Accused

Q. How long have you known the accused?
A. I think in the Spring of 1859 was the first I knew him.

Q. Did you reside in the same neighborhood where he did?
A. Yes sir

Q. Do you know his reputation in that neighborhood for peace and quiet?
A. As far as I know, he had the reputation of being an orderly and quiet citizen.

By the Court

Q. What capabilities had you for knowing the reputation of the accused?
A. I met him frequently at local gatherings and crossed his ferry once or twice a week. I only speak of his reputation or character from general report, not from my own personal knowledge. I was not intimately acquainted with him at all.

Q. You mean you heard him spoken of generally as a quiet, peaceable man?
A. Yes sir. I think that was the reputation he bore there.

The witness then retired.

Was recalled and examined.

By the Accused

Q. Is Capt. NORTON dead and, if so, how did he come to his death?
A. I have never received any official information of his death, but I have reason to believe he is dead from a letter I saw from a surgeon at Fayetteville, in which he said two ladies came to him and reported having found two bodies, one dressed as officer and one as a private, near the spot where these two officers were supposed to have been shot. The letter is in the possession of Lt. Col. HOYT.

Q. When were Capt. NORTON, Lt GOSS and Lt SMITH first missed from the command and when did the report come in of their murder?
A. During the halt of a day at the foot of Cane Hill.

Q. Was that previous to the execution of those three men and if so, how long?
A. It was previous and about half a day or there abouts.

Q. I believe you stated these three men were hung in retaliation for the deaths of Capt. NORTON and Lts. SMITH and GOSS.
A. I did sir.

The witness then retired.

The accused made application for the subpoena of a witness to show how he came in possession of those mules.

The court was cleared for deliberation and upon re-opening, it was announced that the court did not deem it necessary to summon any witnesses on that point.

The accused announced his defense closed and the Judge Advocate called in evidence in rebuttal in regard to character.

2nd Lt, Company “M”, 15th Kansas Volunteer Cavalry was recalled and examined.

By the Judge Advocate

Q. Have you the means of knowing the reputation of the accused for being a peaceable, quiet, mildly disposed man previous to the occurrences for which he is being tried?
A. I have been acquainted with him about a year previous to the occurrences which give rise to these charges.

Q. Do you know what his character is as a mildly disposed, peaceable, quiet man? If so, state it.
A. It is not very favorable so far as my knowledge extends.

Q. Do you know any circumstances in the life of the accused, which would show that he is not a quiet, mildly disposed person?

The accused objected to the introduction of any particular circumstances of his life, as it would form the basis of another investigation and require the accused to introduce new testimony.

The Judge Advocate contended that when the accused went with the subject of general character, he had a right to introduce certain acts of his life in rebuttal.

The court was cleared for deliberation and upon reopening, it was announced that the objection was sustained.

Q. You stated the character of the accused as a quiet, peaceable, mildly disposed person was not good. State what induced that opinion.
A. From his conduct, conversation and general rumor in the regiment and from his own company.

By the Accused

Q. Did you ever live in the neighborhood where the accused lived?
A. I never did.

Q. Do you know what his reputation is as a citizen?
A. I do not.

Q. This reputation you speak of – you say grew out of specific circumstances?
A. That is not what I said or mean.

Q. Was it not from discussions that rose in regard to specific acts charged against the accused?
A. It was.

The witness then retired.

The accused then submitted his written defense, which is appended hereto and marked “C”.

The Judge Advocate then closed the case and submitted it to the court without remark.

The court was then cleared for deliberation, pending which it adjourned until 10 o’clock a.m. Friday, March 31st, 1865.

Fort Leavenworth, Kansas

10a.m., March 31, 1865

The Court met pursuant to adjournment.


The same members at the last session and the Judge Advocate.

The proceeding of the last session were read and approved.

The Court was then cleared for deliberation and after having maturely weighed and considered the adduced finds the accused, Capt. Oren A. CURTIS, Company “F”, 15th Kansas Volunteer Cavalry as follows:

Of the specification to Charge I “Guilty” except the words “and with malice aforethought” and “murder”
Of Charge I Not Guilty of “Murder”, but “Guilty” of Manslaughter in the Fourth Degree

Of the specification to Charge II Not Guilty
Of Charge II Not Guilty

Of specification 1 to Charge III Not Guilty
Of specification 2 to Charge III Not Guilty
Of Charge III Not Guilty

And the Court does therefore sentence him, the said Capt. Oren A. CURTIS of Company “F”, KVC “to be dismissed the service” and “to be confined at hard labor for one year at such place as the Commanding General may direct.”

Judge Advocate Major General, USV
Judge Advocate President, General Court Martial


VS. }
O.A. CURTIS, Capt }
15th KVC } Before the Court, of which Maj. Gen. SYKES, USV,

is President

O.A. CURTIS, Capt, Co. “F”, 15th KVC, being duly sworn, states: That Brig. Gen. John MC NEIL, USV, commanding the Central District, Department of the Missouri, State of Missouri Headquarters at Warrensburg, Missouri is a material witness in his behalf on his trial now pending. That Gen. MC NEIL would swear, if present, that in the month of August, 1862, he being then Colonel of the 2nd Missouri Cavalry and in command of the NE sub-district of Missouri Headquarters at Palmyra, a Union man was abducted from the town of Palmyra by bushwhackers or guerillas and was supposed to be held as a prisoner by them. That, in order to have said Union man released, he issued an order that unless said Union men were released by a day certain, he would execute ten bushwhackers; that said Union man was not produced by the time prescribed; that in accordance with his order, he did execute ten bushwhackers without trial or any judicial proceedings of any kind or nature whatever. That immediately preceding the execution, one of the men so selected to be executed proved that at the time that Porter sacked the town of Palmyra he (HUMPHREYS) did not escape or attempt to escape, although he had a good opportunity to do so. And so he was released and another one was substituted without sentence and executed by the order of Gen. MC NEIL. That this proceeding was fully reported to the War Department with all the attending circumstances, with a view that the trial and said investigation of said matter and that upon a full hearing, the matter was dismissed without taking any action against Col. MC NEIL.

All this according to his best information and belief.


Capt., Co F, 15th KVC

Sworn and subscribed to before
me this 30th day of March, A.D. 1865.

Maj. And Judge Advocate


The accused claims:

1st That he has shown that he had a positive order for the execution of the three men and that the order was given by his immediate superior, commanding the 15th Regiment, in the execution of this office.

2nd That these men were bushwhackers of the vilest stamp and that the accused was informed and believed that these men which were executed had been tried by a “Drum Head Court Martial” and that he was acting in pursuance of the sentence of such a court.

3rd That it is not necessary that an order based upon the sentence of a Drum Head Court Martial for the execution of bushwhackers should be in writing, especially in a county infested by bushwhackers and where there are no conveniences for writing. That it was impossible, under the circumstances, to have proceeding or orders in writing.

4th The accused does not now claim that this was a regular court, but he was informed at the time of the execution that these men were tried and had been condemned as bushwhackers to death. The evidence shows this by reasonable inference.

5th There is no witness that these men were not bushwhackers. Maj. KETNER only gave it as his opinion, founded as he styled it, “upon the want of evidence”. This is a mere matter of argument, assuming in the first place that these men were presumed to be innocent. It is not evidence.

6th The witnesses for the prosecution swore that these men were “bushwhackers”.

7th It is well established by precedent that colonels commanding Brigade, or a separate force in the field, have executed bushwhackers without the formalities of a trial, and this has been recognized by department authorities in Missouri and Kansas from 1861.

8th The accused specifies that orders issued by Maj. Gen. HUNTER, Maj. Gen. BLUNT, Maj. Gen. ROSECRANS, Col. John MC NEIL, Col. R. R. LIVINGSTON, Maj. WILSON of the 3rd Missouri Cavalry, who was shot recently by Price’s bushwhackers.

9th Maj. Gen. ROSECRANS issued a retaliatory order concerning the killing of Maj. WILSON and 6 of his private soldiers, in which he ordered that 6 soldiers and one of Price’s majors should be shot, which was executed in part. Six Rebel soldiers were shot in St. Louis under that order.

10th Col. JENNISON, it has been shown, issued a retaliatory order for the killing of Capt. NORTON, Lt. GOSS and the wounding of Lt. SMITH; that order has been shown in this case beyond all question. It was that three bushwhackers, by the names of BUCHANAN, LEACH and another name unknown, should be shot “on the spot” in pursuance of Gen. BLUNT’S order from June 26th, 1862, as soon as it was practicable.

11th The accused respectfully calls particular attention to that order. It gives “commanders of troops and detachments in the field” the same authority to act, and the same discretion, as the Major General commanding the Department claimed.

12th It was sufficient for the accused to inquire whether an investigation had been held of these three men and to know that the investigation proved these men to be bushwhackers. It was sufficient for him to receive information that an informal court “instituted on the spur of the moment for the investigation and trial of such military cases as may come up before it.”

13th An officer obeying an illegal order cannot be held responsible for that obedience unless it was perfectly palpable whom the delivery of that order, that it was inhuman and grossly wrong. This was not palpable in the case of the accused. He has shown that he hesitated, that he refused the first order, delivered by the Sgt. of the Guard from Maj. LAING, and it was not until he received the second order that he obeyed. This last order was imperative and he claims that it was a complete justification, so far as he is concerned.

14th The accused respectfully calls attention to the correspondence between Gen. SHERMAN and Lt. Gen. HOOD in regards to retaliatory orders and in what cases such orders will be issued. To the fact that orders have been issued by Commandants of both Union and Rebel armies for the summary execution of bushwhackers. To the influences under which the company of the accused was raised. When QUANTRILL entered the town of Lawrence and killed and murdered and burnt houses indiscriminately. To the policy of General Officers in Missouri and Kansas in regards to the summary execution of “bushwhackers”. All these influences had a bearing on the mind of the accused, when he was ordered to execute these three men.

15th The accused claims that the evidence shows that he was ordered to execute these three men because he was the officer of the day; the column was halted and execution proceeded with all the solemnity usually attending military executions.

16th The accused claims that the prosecution failed to support by proof the specification under Charge I in the following – “having in his custody three citizens”. The evidence shows that the prisoners was not delivered to him until the time of their execution. That they were not “citizens” in the full sense of that term, but that they were “bushwhackers” and not entitled to the name of citizen. The very first witness for the prosecution swore they were bushwhackers. So did all other witnesses, except Maj. KETNER, who made up his opinion from a legal standpoint and not as a juror sworn to try facts.

Neither is there evidence that I did it “willfully” – for I was compelled to do it by positive order. Nor with “malice afore thought”. There is not a scintilla of evidence that I bore any malice towards these bushwhackers. I thought I was carrying out a painful duty that I owed my country. I would have given my commission to have escaped this duty, but my orders were so imperative that I thought I was bound to obey.

17th The accused submits that there is a total failure of proof under Charge II and Charge III and there respective specifications. The only thing that looked like proof was the testimony in regards to two mules which was drawn out upon Cross-Examination of Lt. JOHNSON after the prosecution had closed. I proposed to explain fully in regard to those mules, that they were my lawful property, and with that even asked for the production of witnesses who knew all about it, but which was by the Court deemed unnecessary and immaterial. There is no evidence that I got a dollars worth of property or that I in any way misappropriated knowingly and willfully any property of any kind whatever. The evidence shows that I did not leave any post or colors without authority – that I did not enter private houses; that I did not plunder or pillage. That I did not permit my men to leave ranks, nor plunder, not pillage. There is not only a want of evidence to sustain these charges, but I have affirmatively shown what became of this property. That I was entirely faultless and honest in all matter with which I had any connection whatever.

If the Court adjudges me guilty of the awful crime of murder, I pray for such mercy as an enlightened and tempered justice may dictate. I must either be found murder in the highest degree or acquitted. There is no middle ground or degree of a lesser kind which the Court can find, because there is no words in the specification which would describe manslaughter. A better reason would be that there is no evidence which would know that these men were executed in the heat of passion. It is the highest degree of murder or it is nothing. It calls for my death or my acquittal. I have shown good character as a citizen and an officer of my country and I know that the learned and generous Court before which I now stand charged will not decree my death unless it is required in the demands of justice.


Capt, 15th KVC