War of the Rebellion: Serial 114 Page 0422 PRISONERS OF WAR, ETC.

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EXHIBIT B.

In case of this kind where the life of the prisoner is being adjudicated before a court it is but reasonable that all the mitigating circumstance in the case should be broguht to bear in his favor, and that justice, even though it should demand extreme penalties, should be administered in mercy, and for this purpose the law has provided many safeguards and gives the prisoner the advantage of all doubts that may arise in the evidence; and in this case if the evidence is examined with due regard to the cautions and safeguards of the law it will be found that if the prisoner is not exculpated from blame, he at least ought not to be convicted of the charges preferred against him. There are four specific charges with appropriate specification under each charge made against the prisoner. Charge Numbers 3, however, of this series is clearly included in charges Nos. 1 and 2, upon the principle that the greater includes the less, and there is little danger of any confusion in these charages, for the plain reason that the only evidence relied on is intended to prove the main fact contained in charge and specification Numbers 1, to wit, "destroying railroad and railroad property", and this evidence of such character that it fordbis the idea of "aiding and abetting in the destruction of railroads", &c. And again, with regard to charge Numbers 2 and specification there is no evidence at all, so that it will be unnecessary to pursue the investigation in that direction. And with regard to charge Numbers 4 I imagine that the court are fully satisfied that the prisoner has as good right to the title which he assumed, to wit, that of captain, as any man an Price's army. The character of a military officer in a belligerent force at war with the Government could be of no injury to the Government, except so far as he might impose upon the enemies of the Government, and under the pretence of being an officer induce them to do acts hostile to the Government which they might otherwise not do. But this couldis case, for the only persons he claimed to command were such as had elected him to the position he occupied; and they above all others knew the extent of his authority over them. It may be true as charged that he was not duly commissioned, but that is also ture of a great many officers in all armies, expecially when these armies are composed of volunteer forces. The companies once organized and their officer elected they seldom wait for these officers to receive their commissions before they go into actual service, and these misguided youths in North Missouri, whose zeal gets the better of their judgment in matters of the most vital importance pertaining to their country, their friends and themselves, are hardly the men from whom we could expect patient waiting for the mere formula of a commission, when they suppose they are otherwise ready. Then if any person claiming to be an officer in the rebel army by virtue of a commission from Price or Jackson has the right to insist upon being treated as a prisoner of war I can see no reason why this defendant may not claim the same privilege. Whatever title he may have assumed that title was well understood among those he attempted to control, and they were the only if could influence. So far then as the fourth charge and specification is concerned, I shall dismiss it without further comment, truising the evidence adduced to vindicate the prisoner in the pitful rights he may be entitled to by virtue of a negation of that charage. There now remains but one charge and the specifications under it to be disposed of. I say but one, for the second charge has no evidence whatever in support of it; no part of the evidence in this case relating to the destruction of telegraph or