Second. In August and in the month of July I was recruiting in the counties of Pettis, Saline, Cooper and across the Missouri.
Third. I raised a force of between 200 and 300 men, and part of that consisting of three companiews marched and joined the army of Price in August.
Fourth. I was elected major by that force after it was raised. I have not been able to prove that I was elected colonel by it after its increase.
Fifth. Colonel Price in August had been sent in to raise recruits and furnish supplies. He was a colonel in the army of General Price. Captain Alexander of the army was engaged in the same servie. In communications between Colonel Price and Captain Alexander, addressed to the latter as recruiting officer of the army and stated the theater of my operations.
Sixth. Colonel Day tertifies that among the officers of the United States at Jefferson City the fact of my connection with the army was notorious and that was tthe reason why I was not on the list of marked persons to be arrested while on the march of his detachment to Lexington.
Seventh. While a prisoner at Lexington negotiations for my excharge for prisoners held by General Price took place and the U. S. officer, Colonel Marshall, objected to the exchange on the ground that I was in arms against the United States and was therefore no fair excharge for civilians.
Eight. So soon as my liberation took place a commission of colonel of an infantry regiment was given me and I at once entered upon the new service and was with the army of Price till summoned back by the extreme illness of my wife.
Ninth. On the day of my capture at Georgetown I had still under my command a portion of the recruits raised at the period when Colonel Price was in [sic], and when my name as a recruiting officer was mentioned in the communications official between him and Captain Alexander.
Tenth. It was notorious that I was connected with the army as recruiting officer at Georgetown and Sedalis and soldiers.
Eleventh. Colonel Hughes establishes the fact that the recruits I had raised were encamped on my oen land in force so large that a force of 500 men were detailed to capture my command.
The actual exhibition of a paper commission is not essential to the status even of an officer in the army, thought it constitutes when accesseble the highest evidence of the fact in a regularly organized army. It will be remmembered by the commission that at Boonville and Carthage there was no regular organization of the forces in rebellion - scarcely more than existed at Concord or Lexington on the outbreak of the Revolution. The evidence to establish the status of officer or soldier must have respect to the character of the force raised and its organization. The battle of carthage was as I have said on the 10th of July. The amount of service rendered by me from that period to the affair at Georgetown, embracing a little more than forty days, shows that I was no idler. Even up to the present period I suppose the organization of the rebel army in this State is imperfect. I submit that the proof does not clearly or satisfactorily show that I was not a legitimate belligerent.
The second averment in the specification is that the killing was " wanton and malicious. " This is wholly unsupported by the proof. The attack was made by Federal soldiers; they began the firing. The proof