recruited by me into the regular service of the State. The commission will readily see how much of this history is supported by the evidence. I proceed to notice the first charge: " Killing in violation of the laws of war. "
The first averment necessary to support the charge is that I was not a legitimate belligerent. I support the rule to be in this tribunal as elsewhere that the prosecution must prove the charge - prove it consists, first, in showing that I was not in uniform - wore no military badge to distinguish me for a civilian . Such proof would make illegitimates of more than half of all soldiers now is arms against the United States. It would prove that our fathers who fought at Concord and Lexington and Bunker Hill were illegitimates, not to mention the home guards. Second. The testimony of Colonel Day, who represents me as disclaiming any connection with the army when I was a prisoner surrounded by infuriated home guards and some of his cavalry soldiers who were clamoring for my blood to be shed there by them and he using his best exertions to prevent the deed. Out of this moment of violence, confusion and fury comes the only direct evidence which the prosecution offers to give color to the charge. According to all writers this is the weakest of all evidence known to the law. Starkie says of it:
Of all kinds of evidence that of extra - judicial and casual observations is the weakest and most unsatisfactory. Such works are often spoken without serious intention, and they are always liable to be mistaken and misremembered and their meaning is liable to be misapprehended and exaggerated. A hearer is apt to clothe the ideas of the speaker as he understands them, and by this translation the real meaning must often be lost. A witness too who is not entirely indifferent between the parties will frequently without being conscious that he doesso give too high a coloring to what has been said. [Starkie's Evidence, vol. 1, page 461, top side page 462, and note.]
That Colonel Day can be mistaken is a very patent fact developed by the testimony. his mistakes are numerous of things more palpable than words uttered the integrity of the witness. At that scene and at another in Sedalia he was under the dominion of feelings which pushed him into improprieties of speech and bearing toward me which I am sure his calmer judgment does nor approve. But while these feelings were eminently calculated to cause him to misjudge,, misinterpret and misunderstand me I am not willing to believe that he has sworm to any intentional error. He was, however, mistaken - unequivecally mistaken. No human being ever heard me deny my connection with the army. I was a rebel on principle; never did disquise the fact and do not now. In the unhappy civil feud of my country I took sides from the outbreak of rebellion in this State and all men who know me know my position. I may have said to Colonel Day that I had no commission - that is no documentary evidence of it - in the Missouri State Guard. I might with truth also have said I had no place in the Confederate Army for at that time I had never seen any of the Confederate Army in this State. But beyond that all is error and misunder - standing on the part of colonel Day.
Opposed to this evidence I have affirmatively shown the following facts:
First. I was in the battle of Carthage. Received prisoners and acted as aide to General Jackson. This battle was fought about the 10th of July.