St. Louis, Mo.

November 30th, 1864 10 ½ A. M.

The Court met pursuant to adjournment.

Present the same members as at the last session.

The Judge advocate, the accused and his counsel were also present.

On Motion the accused consenting thereto, the reading of the proceedings of the last session was dispensed with.

Henry Niell

Major 1st Cavalry M. S. M., a witness on the part of the defense was duly sworn in the presence of the accused by the Judge Advocate and examined.

By the Accused

(130)

Q: Were you with your regiment on the 22nd and 23rd of October last?

A: I was.

Q: Where did the regiment start from on the morning of the 21st?

A: On the morning of the 21st our regiment left the Sni.

Q: What march did you make the day and where?

A: We marched to Independence and three miles beyond.

Q: Were you in an engagement with the enemy on that day.

A: I was.

Q: What time did it commence?

A: I think about 3 o’clock.

Q: What was the first information you had of the presence on the enemy?

A: They fired a volley on our advance.

Q: Who was in advance?

A: Major Mullen.

Q: Where was Col. McFerran?

(131)

A: Riding with me in front of my battalion.

Q: What did he do?

A: He ordered the men left into line, and we dismounted.

Q: What disposition did he make of his force?

A: I don’t know except my battalion. He ordered me through a patch of corn and a nursery to engage the enemy.

Q: Did he give you this order himself?

A: He did.

Q: You don’t know what disposition he made of the balance?

A: I only know from the firing it was sent to my right.

Q: Who commanded at your right?

A: The battalion in advance was commanded by Maj. Mullen. I don’t know what battalion went to my right of my own knowledge. I understood later Burn’s did.

(132)

Q: How long did the engagement last and what was the character of it?

A: After I dismount I think I went about 100 yards across a patch of corn and into a nursery, and when I came out of the nursery I was greeted with a heavy volley from the enemy in front. I went on a double quick until I got nearly to the nursery. I then ordered the men to go steady as I saw a fence in front of me and did not know but the enemy was laying in wait for me, and I moved steadily for the last 40 yards.

Q: Was there much fighting done, and how long did it continue?

A: It continued until night fall. When I got to the regiment it was dark.

Q: Did you have occasion to send for reinforcements?

A: As soon as I got through the nursery, the enemy was behind a fence firing furiously at me. In a few minutes, I don’t know how long, I discovered a force on my left massing and coming through a corn field, behind a hedge. I had passed through a wheat field into a lane, and the first I knew of the enemy he fired a fierce (133) volley up the lane. I fell back across the lane, behind a plank fence so I might have the advantage of the hedge, and dispatched a messenger, and dispatched a messenger to Col. McFerran saying a heavy force of the enemy was massing on the left. I asked for no reinforcements as I thought best. I ordered the squadron on my left to fire on them.

Q: Did you send to Col. McFerran?

A: Yes sir, he was commanding officer.

Q: How far was your position from where he was?

A: I think about 100 yards.

Q: Was any force sent to your assistance?

A: Immediately, as soon as the messenger cold go and come he came to me and reported, ‘The colonel says do not let them flank you; and I will send you company A immediately.

Q: Did Company A come?

A: Yes.

Q: How long after the messenger returned did Company A come to your relief?

(134)

A: In a few minutes.

Q: Did you know where to send to Col. McFerran?

A: I supposed he was where I had left him, because I did not think he had time to get away. I supposed he would be disposing his forces.

Q: What kind of position was he in; was it more elevated or lower than when you engaged the enemy?

A: My recollection is that it was the highest ground there.

Q: You mean higher than any point occupied by the regiment?

A: It was higher than I was. I had passed down a gradual descent into a lane which was lower than the ground around it.

Q: The position where the regiment was ordered to dismount was in dismount was in the road?

A: Yes.

Q: Leading directly west?

A: Leading directly west?

A: Yes.

(135)

Q: How does that lane run in reference to the road?

A: At right angles.

Q: What is the distance from where the regiment dismounted to the intersection of the road with the lane?

A: I don’t know how the road runs. It was about 100 yards from where I dismounted to where I engaged the enemy in the lane. I moved obliquely to the left.

Q: do you know where the fire came from which was made on Major Mullen’s advance?

A: I think it was in front and to the right of where I was posted, and I infer came from about the mouth of that lane, though I never was at the position.

Q: Was there any artillery used by the enemy?

A: There was.

Q: From your statement of the position occupied by Col. McFerran at the time the regiment dismounted, and where he remained until you sent a messenger to him, was he under fire at any time, either (136) artillery or musketry?

A: From where the enemy had his artillery shooting at us, I suppose he could have shot at him as well. All the balls which went over my head could have went to him but whether they did or not. I don’t know.

Q: Was your regiment employed in service after night?

A: I know only about my own battalion. It was about ark when I got back to the column, and met General Brown moving out.

Q: What do you mean by away back?

A: A few minutes after I was reinforced by Company A, part of the 7th and 4th M. S. M. came to my left, where the enemy were trying to flank me, and in a few minutes we made a charge and routed the enemy from behind the fence and pressed them through a woods and across the creek. We were ordered to horse and come back. As I came back I met Capt. Little with an order from Genl. Brown saying that the enemy was massing on my left and for me to take my Battalion and attack them furiously. I obeyed the order as best I could, and followed them till a body of cavalry moved up the road to my right and in front (137) of me, and then I came back. I met General Brown who ordered me to remain where I was, that he had ordered Col. McFerran to bring up the regiment. That the horses would be brought up, and I need not walk any further, and that we would move in the rear of the brigade.

Q: How soon did you see Col. McFerran again?

A: As soon as the 4th and 7th Regiments passed up with the regiment.

Q: What part of the regiment had he with him?

A: I don’t know: I had two companies of my battalion with me.

Q: What time was this?

A: I have no watch, and don’t reckon time by the hour very much. It was just dark.

Q: What did the regiment do? Did they remain in that position till morning?

A: No, we moved on about half a mile till we came up with Capt. Burris and Maj. Mullen’s battalion on the right hand side of the road, and they mounted their horses and we moved on.

Q: How far did you move that night before you stopped?

A: It is difficult to tell, because there was (138) serious musketry in our front stopping us occasionally for 5 or 10 minutes and then move on again. I think we stopped in line about 3 miles from Independence.

Q: At what time?

A: It must have been 10 o’clock.

Q: How far was the place where you stopped in advance of the position where the regiment was first fired on?

A: Two and a quarter or two and a half mile. Ican’t speak positively of the distance. That is my opinion only.

Q: What time did the firing cease that night?

A: About the time we halted, or a little before.

Q: What regiment was immediately in advance of you?

A: The 4th.

Q: Your regiment remained there till what time?

A: A little after sun up.

Q: what time was Col. McFerran arrested the next morning?

A: I think about sunrise.

(139)

Q: Where were you?

A: Standing there near him.

Q: What were the men doing?

A: Getting ammunition.

Q: Were there ammunition wagons there?

A: Yes.

Q: Who sent them?

A: They were brought up from the rear. The quartermaster had them in his custody, and brought them up.

Q: Do you know how the men were supplied with ammunition before that – how many round they had?

A: I know of my own battalion, we were about expended.

Q: Was the regiment in line?

A: Yes.

Q: How were they disposed when you stopped?

A: I think about the time we stopped we appeared to the right and left to the fence to allow some ambulances to pass.

Q: How long did they remain there?

(140)

A: Till we formed ranks and stored our equipment.

Q: What time did the regiment start?

A: About sun-up.

Q: How long after Col. McFerran’s arrest?

A: Ten or fifteen minutes.

Q: In what condition was the regiment for moving immediately at the time of his arrest. How soon could you move.

A: As soon as we could mount and get in the road.

Q: Was there any difficulty in the men getting their horses? Were any horse loose.

A: I don’t know of any horses being loose. Some of the men were sitting by gthe fire on the roadside,, with their horses in their hands.

Q: Were any of the men asleep?

A: I don’t think they were. My orders were to get ammunition as soon as possible, and move immediately in the rear of the 4th.

Q: Who gave the order.

A: Col. McFerran.

Q: What time did he give the orders to mount?

A: Just before his arrest.

Q: How long had the men been without food or rest before that night?

A: We had had scanty fare for ourselves and horses since we left Brownsville, and had had comparatively no rest.

Q: What time did you leave Brownsville?

A: Between 12 an one o’clock on the morning of the 20th.

Q: When had the horses had feed previous?

A: They had not had a good feed for 48 hours.

Q: Did the men have provisions on the morning of the 23rd?

A: Some did and some did not.

Q: Where were the provisions brought from?

A: On the morning of the 22nd we had crackers issued to us at Fire Prairie Creek, and the commissary of subsistence furnished a little beef, and some of the men saved some beef and some did not and some had beef and some had not.

(142)

Q: Was anything furnished on the morning of the 23rd?

A: I think the subsistence train got up that morning and some of the men got some beef, but I don’t know it. I saw some of them eating beef.

Q: Do you know of a detail under command of Lieut. Johnson, for foraging?

A: I know he was detailed for that business.

Q: When was that detail made?

A: I can’t tell the date; it was while we were camped near the Blackwater. It was some days before that.

Q: Do you know what orders were given to the commander of that detail to report daily?

A: I do not. I know it was the understanding that he should bring us something to eat.

Q: Previous to the 23rd when had that detail reported to the regimental commander?

A: I don’t know.

Q: Do you know whether the column directly in front of your regiment had moved when Col. McFerran was arrested?

(143)

A: I don’t think it had.

Q: Do you know what was the force of the enemy in front of you on the 22nd?

A: I do not. They seemed to be a superior force to us, and I think were superior.

Q: Do you know what time the ammunition wagons came up on the morning of the 23rd?

A: A little before sunrise.

Q: You stated your men were engaged in getting ammunition?

A: They were.

Q: How long after Col. McFerran was arrested did the regiment move?

A: I think about 13 months. The arrest made some little delay in reshaping the column. My battalion was thrown in front.

Q: Were you engaged that day?

A: Yes sir.

Q: How long after?

A: As quick as we could go to the blue on the double quick.

Q: On the morning of the 23rd did you hear firing (144) in your front by the enemy, before the arrest of Col. McFerran?

A: I never heard any.

Cross-Examination by the Judge Advocate

Q: What time did you reach the Sni, and when did you leave?

A: Between 12 and 1 o’clock.

Q: What time did you reach Independence?

A: About 3 o’clock.

Q: Was there any halt made between Lexington and Independence?

A: There was at Fire Prairie Creek and the Little Blue.

Q: State what issues of ammunition and provisions were made as any of those points.

A: At Fire Prairie Creek there were issued some Crackers.

(145)

Q: What was the date?

A: The morning of the 22nd.

Q: Commence of the 20th and state what issues of ammunition – and provisions were made from the 20th to the 23rd in order.

A: I don’t remember that any issue of ammunition was made except on the morning of the 23rd between Independence and the blue, and I recollect of no issue of subsistence except crackers at Fire Prairie Creek.

Q: Are you certain ammunition was being issued at the time Col. McFerran was put under arrest.

A: I am.

Q: Does that refer to your own battalion on the regiment?

A: My battalion.

Q: You say our horses had had no good feed for 48 hours and the men had no food for that time; does that refer to your battalion on the regiment?

A: I speak of my battalion only. I can speak with certainty in regard to that, but not in regard to that, but not in regard to the others.

(146)

Q: You spoke of the nature of the ground where your regiment went into action on the 22nd, have you visited the ground where your regiment went into action on the 22nd, have you visited the ground since or passed it before?

A: I have been over it before, but not since, that is I have been along the road there before.

Q: Are these mere impressions, or have you a distinct recollection of the ground as you have described it?

A: I think I can say I know the shape of the ground.

Q: State how many orders you received from Col. McFerran during the action on the 22nd, and how many times you saw him during the action?

A: I received the order to go into action, and the order to advance, and I saw him once during the action.

Q: How long did the action did the action continue and how many men were killed and wounded in action?

A: It continued from 3 o’clock until dark and I had three men wounded in my bagttalion, and none killed.

(147)

Q: Do you know from the official reports, how many were killed an wounded in the other battalion?

A: I do not.

Q: From the time the action began till it closed how far had your regiment advanced?

A: I think it was about a mile and a quarter from where I went in to where I stopped.

By the Court

Q: Where did you see Col. McFerran during the action?

A: He was in my rear at the battery.

Q: How far is your rear?

A: about 150 yards.

Q: How long was that after he sent up Company A?

A: I can’t till the time we had charged the enemy and driven them out; I suppose it was about 20 minutes.

Q: Who was Capt. Of Co. A?

A: Capt. B. Mullen.

Q: To which battalion did it belong?

(148)

A: To one of the others, not mine.

Q: From what wagons was the ammunition obtained on the 23?

A: The ammunition wagons.

Q: Regimental wagons?

A: They were attached to our regiment.

Q: Where did these wagons move, at the rear of the regiment?

A: They came from the rear of the regiment that morning. They usually moved at the rear of the Brigade.

Q: Do you know where they came from that night?

A: I understood they were about half a mile in rear of the column. I do not know it myself. The wagons were late getting up. It was difficult crossing the Little Blue, and we had to pull the artillery over with ropes. It was difficult to get loaded wagons around a ravine and across the creek and we left them there.

Q: You don’t know where the wagons were all night?

A: I do not of my own knowledge.

The Witness the retired

(149)

First Lieutenant Wm. Kessenger, Co. G, 1st M. S. M., a witness for the defence was duly sworn in presence of the accused and examined.

By the Accused

Q: To which battalion of our regiment do you belong?

A: The 2nd, Major Niels.

Q: Were you with your battalion on the 22nd of October last?

A: Yes sir.

Q: What time did the enemy make his presence known on the evening and wehere?

A: I think it was about 2 o’clock, near the city of Independence.

Q: How far?

A: We went only a short distance before we encountered the enemy.

Q: Where was your regiment?

A: In front of the Brigade.

Q: What was the nature of the country where the regiment was?
(150)

A: There were some roads and some trees and the country was broken.

Q: Did you hear the firing when Lieut. Mullen was wounded?

A: Yes.

Q: What was done by the commanding officer of the regiment, if anything?

A: We were dismounted and formed to fight.

Q: What disposition was made of the battalions of the regiment?

A: Our battalion was ordered into the engagement on the left.

Q: Were you with your battalion?

A: Yes.

Q: Who gave that order?

A: Col. McFerran.

Q: What course was the battalion direction to take?

A: We were ordered southwest into a cornfield.

Q: Describe where the enemy were and the nature of the country.

A: the enemy were formed in a lane west of and in front of us. Col. McFerran directed my (151) Battalion to get into the corn field and advance on the enemy through the field and through a nursery of you apple trees.

Q: What course did it take to the front, direct or diagonally?

A: Diagonally.

Q: What was done?

A: We advanced through the field and routed the enemy.

Q: What distance was that from where the order was given?

A: A short distance, probably a hundred yards or more.

Q: Where did you find the enemy, in the lane or beyond it?

A: Beyond it.

Q: How long were you engaged with them that evening?

A: Until night.

A: Did you occupy the same position all the time or did you advance?

A: There were some changes.

Q: What were those changes?

(152)

A: We advanced beyond the lane.

Q: Was there a wheat field beyond the lane?

A: Yes.

Q: Did you cross that?

A: Yes, and next we came to a woodland pasture. We crossed that and thee stopped.

Q: Did you see Col. McFerran that day after the fight began?

A: I saw him twice.

Q: Where?

A: Near the point where we dismounted, after we had been in the fight a little while.