Murder in Galveston
The Death of Pvt. Jerry Brownmiller
Custom House, Galveston, Texas
Harper's Weekly, October 27, 1866
Murder in Galveston
The Death of Pvt. Jerry Brownmiller
Custom House, Galveston, Texas
Harper's Weekly, October 27, 1866
Many of the men of the 48th OVVI did not muster out at the close of the Civil War. The regiment had been consolidated into the 83rd OVI the previous January, but in July 1865, after being dispatched to Galveston, Texas, the term of enlistment for the original members of the 83rd OVI expired as well as some of the 48th OVVI. The remaining men of the original regiment were combined with men from two other regiments whose enlistment was not yet up and the new combination was given the name 48th Ohio Infantry Battalion. Notwithstanding the fact that they had reacquired their original name (or close to it), there was considerable resentment among the men that some were allowed to go home while others had to complete their service in the company of strangers.
While in Texas the battalion performed various kinds of garrison duty in and around Houston and Galveston. As the months rolled by, dissatisfaction grew among the men, most of whom had not signed up with the expectation that they would be retained in the army beyond the time of the national emergency. In fact, matters came to a head on March 20, 1866 when the entire regiment stacked their arms and refused to spend another day in the service. Gen. Wright, who commanded the district, ordered the arrest of battalion commander, Lt. Col. J. R. Lynch. Only intervention from no less than General Grant himself saved Lynch and other "conspirators" from a court marshal. Orders were received for the final muster-out of the battalion on April 23, 1866.
During the period immediately preceding the mutiny, the unrelenting boredom along with an increase in alchoholism led to a confrontation near the Galveston Customs House between members of the 48th Ohio Infantry Battalion and a drunken New York Cavalryman. The culmination of the brawl was the shooting death of Pvt. Jerry Brownmiller, of Company C of the 48th Ohio. The perpetrator, James K. Postley, was charged with murder, court marshaled and found guilty of unpremeditated murder with a sentence of thirty years of hard labor in the Dry Tortugas (something he managed to avoid by escaping while in transit to serve his sentence.)
The entire transcript of Postley's murder trial is available in Brownmiller's pension file, and it is a fascinating glimpse of military justice during the period. The testimony of the witnesses is also of interest as it graphically illustrates the daily life of the 48th Ohio at this time.
WILLAM J. SROFE 'S LETTERS FROM POST WAR TEXAS
Official Copy, G. Normal Lieber, Acting Judge Adv. General
Proceedings of a General Court-Martial which convened at Houston, Texas, by virtue of the following General Order:
Headquarters East Dist. Of Texas
Houston, Texas. Feby 18” 1866.
General Orders. }
No. 2. } Extract.
1st A General Court-Martial is hereby convened to assemble at these Headquarters at 10 o’clock A.M. the 13th inst. on or as soon thereafter as practicable for the trial of such prisoners as may be brought before it.
Detail for the Court.
Major A. F. Search. 12” Ill. Cav.
Capt. G. H. Mossgrove. 48. Ohio. Vol.
“ A. J. Pratt 10” U.S.C.I.
“ George Kennicott 37” Ill. Vol.
“ John H. H. Reike. 48” Ohio Vol.
1st Lieut. Chas. H. Pease 10” U.S.C.I.
2nd “ Henry Richardson. 12” Ill. Cav.
1st. “ Edward Mann 12” Ill. Cav.
Judge Advocate
A greater number cannot be assembled without manifest injury to the service.
By Order of Lt. Col. E. H. Powell.
(signed, A. R. Taylor.
Lt. & A. A. A. G.
Headquarters East Dist. Of Texas
Houston, Texas. Feby 26” 1866.
Special Orders. }
No. 2 } Extract.
1st Lieut. Charles A. Powell, 10” U.S.C.I. is hereby detailed as a member of the General Court-Marshal convened by virtue of General Order No. 2. current series for these Headquarters and will at once report to the President of the court at Houston, Texas.
By order of
Lt. Col. E. H. Powell
(signed, D. J. Prondfit
Capt. & A. A. A. G.
Houston, Texas, March 5. 1866 – 10 A. M.
The court met pursuant to the foregoing orders.
Present
Major A. F. Search. 12” Ill. Cav.
Capt. G. H. Mossgrove. 48. Ohio. Vol.
“ A. J. Pratt 10” U.S.C.I.
“ George Kennicott 37” Ill. Vol.
1st Lieut. Chas. A. Powell 10” U.S.C.I.
Chas. H. Pease 10” U.S.C.I.
2nd “ Henry Richardson. 12” Ill. Cav.
Capt. Edward Mann 12” Ill. Cav.
Judge Advocate Late Lieut. 12” Ill. Cav.
Absent
Capt. John H. H. Reike. 48” Ohio Vol.
The cause of Capt. Reike’s absence is unknown.
Notice was here given to the court that Lieut. Mann, Judge Advocate had been promoted to the rank of Captain and was mustered on the 4” Day of March 1866.
The court then proceeded to the trial of James K. Postley, Co. “B”. 18” New York Cavalry Vol. who was called before the Court and having heard the order made concerning the Court was asked if he had any objections to any member named in the order.
The Accused having no objections to any named the Court was then in his presence duly sworn by the Judge Advocate and the Judge Advocate was duly sworn by the President of the Court.
The Accused applied to the Court to be permitted to introduce Capt. J. F. Wallace, 12” Ill. Cav. And Judge D. J. Baldwin as his counsel which application was granted and they appeared as his counsel.
The Accused Private James K. Postley Co. “B”. 18” New York Cav. Volunteers was arraigned for the following Charge and Specification –
Charge:_ Murder
Specification:_ In this that he James K. Postley Private of Company “B.” Eighteenth New York Cavalry Volunteers did with malice a forethought and without proper cause or provocation draw a Revolver or pistol and point it towards Jerry Brown Miller, Private of Company “C.” Forty Eighth Ohio Volunteer Infantry and did fire on him the said Brown Miller the ball from the said Revolver or pistol taking effect in the said Brown Miller’s head, killing him within about the period of twenty minutes after the wound was received.
This at Galveston, State of Texas on our about the evening of the Nineteenth day of February A. D. one thousand eight hundred and sixty six.
(signed, John P. Conklyn.
Capt. And Judge Advocate
Department of Texas
To which Charge and Specification the Accused pleaded as follows:_
To the Specification: “Not Guilty”
To the Charge: “Not Guilty”
The Court then adjourned to meet again tomorrow the 6” inst. at 10. A.M.
Houston, Texas March 6. 1866.
10. A.M.
The Court met pursuant to adjournment. Present, the same members as on yesterday. The Judge Advocate, the Accused and his counsels. The Court proceeded with the trial.
Private Andrew Fredline, Co. "B", 48" Ohio Vols. a witness for the prosecution was duly sworn.
Ques. Judge Adv: State your name, rank and command?
Ans: Andrew Fredline, Private, Co. "B" 48" Ohio Vols.
Ques. Judge Adv: Do you know accused if so state his name rank and command?
Ans: To my knowledge his name is James Postley. I do not know his Regiment.
Ques. Judge Adv: Did you see accused on the 19" day of February, 1866?
Ans: Yes sir.
Ques: Judge Adv: Where did you see him?
Ans: I saw him at Capt. Morse's office at the Custom House.
Ques. Judge Adv: State what you saw of him on that day?
Ans: I saw him through the day clerking in the office and in the evening him and Clinton Hays went to supper. I do not know anything about him until they came back to the tent where I was sitting. They came up to the tent Clinton Hays and James Postley. When they got to the tent James Cass, Jerry Brown Miller and myself got up and went out of the tent and then James Postley opened the tent and wanted Clinton Hays to go into the tent and Hays refused to go into the tent and wanted Postley to go in first. There was some words passed between them but I cannot recollect what they were and then Clinton Hays called for James Cass. Cass came up then and laid one hand upon Hays shoulder and the other upon Posley's shoulder, when Postley told Cass to stand back. Cass did so. Postley got to jerking Clinton Hays about pretty rough. Jerry Brown Miller stepped up and told Postley not to handle Hays so rough. Postley told Brown Miller to stand back. Brown Miller told Postley he would not stand back when Postley drew his revolver and again told Brown Miller to stand back. Brown Miller told Postley he would not stand back and to shoot him if he wanted to. Then Brown Miller, Hays and Postley commenced scuffling around there for a little bit and then James Cass told Brown Miller to stop or else Postley might shoot him. Brown Miller stopped. Postley threw Hays down on the ground. Postley raised up and said "so help me God I will shoot." He said those words twice and as he said "so help me God" the last time he Postley shot the first shot, cannot tell whether he shot in the air or not. The second shot he fired at Brown Miller, or at least he Brown Miller fell and the third shot I cannot tell whether he fired at Brown Miller or not, he fired in that direction, and then James Cass stepped up to Postley and says, Postley you ought to be ashamed of yourself. You have shot Jerry Brown Miller. Postley says to James Cass, stand back or I will shoot you, and then Postley turned around and walked up stairs into Capt. Morse's office. I did not see anything more of Postley until I was with Corp. McKee sent up to arrest him. He met him at the office door with his revolver in his hand loaded. McKee says Postley I was sent up here to arrest you. Postley asked him by whose order. McKee says by Douglass the Sheriff. By this time Douglass the Sheriff came up stairs. Says Douglas to Postley you have got to give up your revolver. Postley did so and then we took him off to the prison. This is all I know of it.
Ques. Judge Adv: What did Cass say when he came up to Postley and Hayes when Cass called for him?
Ans: I cannot remember what he said there was some words passed between them.
Ques. Judge Adv: Did Postley and Hays seem to be mad with each other when they came to the tent together?
Ans: No sir I think not.
Ques. Judge Adv: Was there any hard feelings between Postley and Brown Miller before Postley shot Brown Miller?
Ans: I think not none that I know of.
Ques. Judge Adv: Did Postley keep his pistol in his hand all the time he was scuffling with Hays?
Ans: I think he did.
Ques. Judge Adv: What was Brown Miller tryijng to do when he was scuffling with Postley and Hays?
Ans: I think he was trying to get Hays loose from Postley.
Ques. Judge Adv: Was Hays intoxicated?
Ans: Yes sir.
Ques Judge Adv: Was Postley intoxicated?
Answer: He did not appear to be so to me.
Ques. Judge Adv: In what part of the person was Brown Miller shot?
Answer: In the head right above the left eye.
Ques. Judge Adv: Was he hit more than once?
Answer: No sir his body was not his hat had two bullet holes through it.
Ques. Judge Adv: Was there any difficulties between Postley and Brown Miller previous to the shooting of Brown Miller?
Answer: None that I know of.
Ques. Judge Adv: What reason do you give for Postley shooting Brown Miller?
Answer: I have none at all.
Ques. Judge Adv: Did you ever hear Postley make any threats to shoot or otherwise do Brown Miller any harm?
Answer: No sir not before that evening.
Ques. Judge Adv: What evening do you mean?
Answer: The evening that Brown Miller was killed.
Ques. by Counsel: Did Postley ever make any threats against Brown Miller at any time and if any when and what?
Answer: I did not hear him make any threats before the fuss commenced on that evening. Brown Miller should stand back or he would shoot him.
Ques. by Counsel: Was that threat to Brown Miller especially or was it the general declaration to stand back or I'll shoot?
Answer: That is more than I can tell.
Q. by Counsel: When Postley said stand back or I will shoot did he address Brown Miller or all there present?
Answer: I think he addressed Brown Miller.
Ques. by counsel: Should you have been likely to have heard any difficulty between Brown Miller and Postley if there had been any?
Answer: No sir I would not.
Ques. by Counsel: How far was Brown Miller from Postely when the second shot was fired?
Answer: About ten feet as near as I can tell.
Ques. by Counsel: Who were present at the time of this affair and what was the position of each person at the time of the firing?
Answer: Sergt. Bourne, James Cass, Jerry Brown Miller, Postley and myself and Clinton Hays. As to the position of the rest I can not tell. I was about half way between the Custom House and the tent.
Ques. by Counsel: Was Sergt. Brit Boling [probably should be Bourne] there?
Answer: Yes sir.
Ques. by Counsel: Have you named all who were present?
Answer: No sir I have not. There were others present that I did not know at the time that they were present.
Quest by Counsel: Was the night dark or light. How far could you distinguish a man?
Answer: I could not distinguish a man with certainty over thirty feet. It was cloudy like.
Ques. by Counsel: What words did Postley use when he wanted Hays to go into the tent as spoken of in your examination in chief?
Answer: I do not recollect.
Ques. by Counsel: Were Brownmiller and Postley acquainted with one another before the affair detailed in your examination in chief?
Answer: I do not know. they were in the same building together. Jerry Brownmiller was on guard duty and Postley was clerk.
Ques. by Counsel: How rough did Postley handle Hays. Detail the acts of roughness?
Answer: He had him by the coat collar. He jerked him around pretty rough I thought.
Ques. by Counsel: How many times did Postley pull Hays on the ground?
Answer: Only once that I saw.
Ques. by Counsel: Was Hays very much intoxicated at that time?
Answer: No sir, I think not.
Ques by Counsel: Did any one there have an axe[?]?
Answer: Yes sir Sergt. Bourne had an axe[?].
Ques by Counsel: Had not Brownmiller been drunk or under the influence of liquor that day?
Answer: Yes sir he had in the forenoon.
Ques by Counsel: What threat did you hear made against Postley by any one there present. State fully all you heard?
Answer: I did not hear none.
Ques by Counsel: Did you not hear threats made against Postley by members of the guard?
Answer: No sir none that I know of.
Ques by Counsel: What tent was it into which Postley tried to get Hays to go?
Answer: His own tent where the orderlies of Gen. Gregory stays. Hays is an orderly of Gen. Gregory.
Ques by Counsel: How far is the tent from the Custom House and what direction?
Answer: About thirty or forty feet from Custom House East.
Ques by Counsel: How far and in what direction is the cistern from the Custom House?
Answer: East and about ten or twelve feet.
Ques by Counsel: In what capacity were you serving at the time of this occurrence and how long have you been serving in that capacity? State where you slept and messed?
Answer: I was orderly for Gen. Gregory. I had been then for about two weeks before this affair occurred. I slept in the Hall of the Custom House boarded with a man by the name of McKay.
Ques by Counsel: Where did Brown Miller stay?
Answer: He boarded with the same man.
Ques by Counsel: Have you had any conversation with any person about this case. If so state when and where you had the conversation with whom and what that conversation was?
Answer: I have had conversation with the Judge Advocate. The conversation was substantially the same as my evidence given in here today. I have had conversation with persons in the City of Galveston by the name of Thomas Fenny. The conversation is about the same as I have given in here today. Thomas Fenny is a member of Co. “B.” 48” Ohio Volunteers. He is a private. He Thomas Fenny asked me how the thing occurred. I told him about the same as I have told here. Thomas Fenny said if he got justice he ought to be executed. I said I think so myself. I had conversation with Clinton Hays. I do not recollect what I said to him nor do I recollect what he said to me. I had a conversation with Sergt. Bourne. It was about the same as I had with Clinton Hays. The conversation was about this affair. I do not remember the words that passed between us.
The Court adjourned to meet again tomorrow the 7” inst. At 10. A.M.
Houston, Texas, March 1” 1866 10- A.M.
The Court met pursuant to adjournment. Present the same members as yesterday. The Judge Advocate, the Accused and his counsels.
Private Andrew Fredline, Co. “B.” 48” Ohio Volunteers was again called to the stand.
Ques. Judge Adv: Did you hear Postley make any threats against the guards at the Custom House. If so state what they were?
Answer: I did not against the guards – only against Brownmiller. The one that was killed.
Ques. Judge Adv: State what those threats were?
Answer: Same as I stated yesterday to “stand back or I will shoot.”
Ques. Judge Adv: How long did Brownmiller live after he was shot?
Answer: He died inside of half an hour.
Ques. Judge Adv: You stated in your cross-examination yesterday that Brownmiller was drunk or intoxicated in the forenoon. How drunk or intoxicated was he BrownMiller?
Answer: He was pretty tight.
Ques. Judge Adv: Was he under the influence of intoxicating liquor in the evening when this affair occurred?
Answer: I think not. He did not appear so to me.
Ques. Judge Adv: At what time of this affair did you see Sergt. Bourne have an axe?
Answer: I did not see him have an axe until the time the shooting was over.
Private James H. Cass Co “C.” 48” Ohio Volunteers, a witness for the prosecution was duly sworn.
Ques. Judge Adv: State your name rank and command?
Answer: James H. Cass. Co. “C.” 48” Ohio Infty.
Ques. Judge Adv: Do you know accused if so state his name, rank and command?
Answer: James K. Postley, Private, 14” New York.
Ques. Judge Adv: Are you sure he belongs to the 14” New York?
Answer: I am not sure whether he belongs to the 14” or 18” New York Cavalry.
Ques. Judge Adv: Did you see the accused during the month of February 1866?
Answer: Yes sir.
Ques. Judge Adv: Where did you see him?
Answer: Galveston.
Ques. Judge Adv: State whether you saw him on or about the 19” day of February 1866?
Answer: Yes, I know I did.
Ques. Judge Adv: State where you saw him Postley and what you saw of him?
Answer: I saw him at General Gregory’s Head Quarters, Galveston, Texas.
Ques. Judge Adv: Were you present at any difficulty that occurred between Hays and Postley?
Answer: No sir I was not. I never saw any difficulty between Hays and Postley.
Ques. Judge Adv: Did you see Hays and Postley together on or about the 19” day of February 1866?
Answer: Yes sir, I did.
Ques. Judge Adv: State what occurred at that time?
Answer: Hays and Postley had been out in town drinking. They came to the tent at the Custom House the tent where Hays and myself quartered in Galveston, Texas. They came to the tent between seven and eight o’clock at night. Hays called for me. Myself, Brownmiller and Fredline stepped outside of the tent and Hays asked me if I was not his friend. I answered of course I am. Hays stepped up between Postley and Hays put my right hand on Hays shoulder and my left on Postley. At that Postley shoved me away. Postley stepped up to the tent and pulled the tent open and wanted Hays to go in and Hays wanted Postley to go in first. Brownmiller stepped up and told Postley to let loose of Hays and Postley says keep back from me. Brownmiller told Postley not to use Hays so rought. Postley says again Keep way from me, and drew his revolver and placed the muzzle at Brownmiller’s breast and told him to stand back or he would shoot him. Brownmiller grabbed the revolver by his left hand and Postley jerked the revolver away from him Brownmiller. I told him Brownmiller to come away from Postley for he was tight and he might shoot him. Brownmiller came to me and says, Jim I don’t like for no man to draw a revolver on me. Postley says “So help me God I will shoot” stepped back about ten feet and fired the first shot in the opposite direction from where Brownmiller was standing and then turned to Brownmiller and fired the second shot, when Brownmiller fell. Postley fired at him again after he had fell. I told Postley that he ought to be ashamed of himself for he had shot Brownmiller. With that Postley ran up stairs into the office in the Custom House.
Ques. Judge Adv: Where did the bullet take effect on the person of Brownmiller?
Answer: Above the left eye.
Ques. Judge Adv: Wash Brownmiller killed instantly?
Answer: He lived about 15 minutes.
Ques. Judge Adv: And you sure that the bullet fired from the pistol or revolver fired by Postley killed Brownmiller?
Answer: Yes sir I am sure of it.
The Court adjourned to meet again tomorrow the 8” inst. At 10. A.M.
Houston, Texas, March 8” 1866. 10 A.M.
The Court met pursuant to adjournment.
Present
Major A. F. Search 12” Ill. Cav.
Captain G. H. Mossgrove 48” Ohio Vol.
“ A. J. Pratt 10” U.S.C.I.
“ George Kennicott 37” Ill. Vol.
1st Lieut. Chas. A. Powell 10” U.S.C.I.
“ Chas. H. Pease “ “
The Judge Advocate, the Accused and his counsel.
Absent
2” Lieut. Henry Richardson, 12” Ill. Vol. on account of sickness and the case was set over for trial until Monday the 12” inst. At 10. A.M.
Houston, Texas, March 12” 1866. 10 A.M.
The Court met pursuant to adjournment.
Present
Major A. F. Search 12” Ill. Cav.
Captain G. H. Mossgrove 48” Ohio Vol.
“ A. J. Pratt 10” U.S.C.I.
“ George Kennicott 37” Ill. Vol.
1st Lt. Charles A. Powell 10” U.S.C.I.
“ Charles H. Pease “ “
2” Lt. Henry Richardson 12” Ill. Cav.
The Judge Advocate, the accused and his counsels. The Court then proceeded with the trial.
Private James Cass, Co. “C.” 48” Ohio Vol. was again called before the Court.
Ques. Judge Adv: Was there any words passed between Postley and Brownmiller besides what you have now stated at the time of the occurrence?
Answer: No Sir.
Ques. Judge Adv: Was there any difficulty between Brownmiller and Postley at any time previous to this affair?
Answer: No sir not that I know of.
Ques. Judge Adv: Where di the first shot take effect that was fired by the accused?
Answer: The first shot was fired in the air.
Ques. Judge Adv: How long did Brownmiller hold on to the muzzle of the pistol after he took hold of it?
Answer: I suppose about half a minute.
Ques. Judge Adv: Was there much scuffling between them before the accused jerked the pistol away from Brownmiller?
Answer: No sir not much. Brownmiller held the muzzle of the revolver and Postley jerked it away from him and told him to stay away from him or he would shoot him if he laid his hands upon him.
Ques. Judge Adv: Did Brownmiller go away from the accused?
Answer: Yes sir.
Ques. Judge Adv: How long was it after Brownmiller left the Accused that Postley shot Brownmiller?
Answer: About one minute.
Ques. Judge Adv: What duty was Brownmiller on at the time of the occurrence?
Answer: He was guarding the Collector’s Office.
Ques. Judge Adv: Did you ever hear the Accused threaten any of the guard doing duty there?
Answer: No sir I never hear him threaten the guard.
Ques. Judge Adv: Was there any threats of violence offered against the accused at the time of this occurrence?
Answer: No sir there was not.
Ques. Judge Adv: Have you stated all you know about the affair?
Answer: I have sir.
Ques. by Counsel: When and where did you first see Postley and Hays that evening?
Answer: The first time I saw them it was on Market Street. I think it was 7 o’clock in the evening.
Ques. by Counsel: Were Postley and Hays together at that time?
Answer: Yes sir they was locked arms.
Ques. by Counsel: Where did you next see them and where?
Answer: I saw them at the Custom House tent. They came to the tent together.
Ques. by Counsel: Who stays in the tent you spoke of?
Answer: Myself and Clinton Hays.
Ques. by Counsel: Give the exact position of this tent?
Answer: The tent stands on the east side of the Custom House. The tent fronts towards the Custom House.
Ques. by Counsel: Did not Postley say when he came up to the tent with Hays that he wanted to get Hays to bed?
Answer: No sir he did not.
Ques. by Counsel: Did accused strike Hays at the time they came up together to the tent?
Answer: He did not strike him that I saw.
Ques. by Counsel: Did not accused open the tent and try to get Hays to go in?
Answer: Yes sir.
Ques. by Counsel: What did accused say to Hays when he tried to get him to go into the tent as spoken of by you?
Answer: He told Hays to go into the tent and said “damn you, you have caused one more trouble to night than you will be able to pay.”
Ques. by Counsel: What did Hays say to accused when he tried to get him to go into the tent as spoken of by you?
Answer: Hays told him to let loose of him.
Ques. by Counsel: Did not Hays want accused to go in first into the tent?
Answer: Yes sir he did.
Ques. by Counsel: Did not accused attempt to go into the tent when Hays wanted him to do so as spoken of by you?
Answer: No sir.
Ques. by Counsel: Have you sworn to all what Hays said at the time accused tried to get him into the tent?
Answer: Yes sir I have.
Ques. by Counsel: Did not Hays take hold of accused at the time accused tried to get him into the tent and pull him about?
Answer: Hays had hold of Postley.
Ques. by Counsel: Did not accused say to Hays after he would not go into the tent, come on upstairs into my room, or words to this effect?
Answer: No sir he did not say any such words.
Ques. by Counsel: Did not accused try to get Hays up stairs with him before this?
Answer: No sir.
Ques. by Counsel: Did not Brownmiller step up and say to Postley you had better let Hays alone damn you, or words to that effect?
Answer: Brownmiller told him to let loose of Hays. That was all Brownmiller said to him.
Ques. by Counsel: Were you in a situation to know of any difficulty between the parties Brownmiller and the Accused if there had been any such difficulty?
Answer: Yes sir I was in a situation to know if there was any difficulty between Accused and Brownmiller.
Ques. by Counsel: Did you know of any difficulty between Accused and Brownmiller before this affair?
Answer: No sir I did not.
Ques. by Counsel: You say Brownmiller came away from Postley when you told him to do so? Was this before or after Brownmiller took hold of the pistol?
Answer: It was after.
Ques. by Counsel: What was the position of all parties present at this affair at the time Postley is said to have shot Brownmiller?
Answer: I was standing about six feet from the Custom House and about twenty feet from the tent between the Custom House and the tent. Brownmiller was standing between myself and the Custom House about two feet from Custom House and about four feet from me. Hays was about fifty feet from the tent and about ten feet from the Custom House north-east from the tent. Postley was standing about six feet from the Custom House and about 45 or 46 feet from the tent. Fredline was standing behind me and Brownmiller at the time Brownmiller was shot. Sergt. Bourne was standing on the right of me as much as 20 feet from me, about 30 feet from the Custom House and between 25 or 30 feet from the tent. I was standing about 10 feet from Postley.
Ques. by Counsel: Did not Hays have hold of Postley at the time of the first shot?
Answer: No sir.
Ques. by Counsel: How far was Hays from Postley when Postley fired in the air as stated in your examination in chief?
Answer: About 5 feet.
Ques. by Counsel: How far was Hays from Postley when the second shot was fired?
Answer: I do not know exactly. About the same distance as near as I can remember.
Ques. by Counsel: Was the night light or dark?
Answer: It was neither light nor dark. It was light enough to tell a man twenty or thirty steps. I could not distinguish a man that distance.
Ques. by Counsel: What was Hays doing at the time of the first and second shots. State fully?
Answer: I do not know exactly what he was doing only that he was standing 5 or 6 feet from Postley.
Ques. by Counsel: After Brownmiller told Postley to let loose of Hays what did he Brownmiller do and where did he go before he took the position where he fell?
Answer: Postley and Hays were on the steps of the Custom House and Brownmiller started towards them, and Postley said keep back from me or I will shoot the first man that lays hands on me or Hays.
Ques. by Counsel: After Postley had said what you stated in your last answer what did Brownmiller do and where did he go and what did he say before he fell?
Answer: He came to me he says “Jim, I don’t like for no man to draw a revolver on me.” He did not say anything more, he stood still until he fell.
Ques. by Counsel: At the time Postley said what you have related in your last answer but one, what did Hays say?
Answer: I do not know whether he said anything or not.
Ques. by Counsel: After the first shot did not one of the parties then present go on the Custom House steps and say if you mean shoot, shoot and be Damned, and at the same time push on the Accused?
Answer: No sir I did not hear any one make threats of that kind.
Ques. by Counsel: Was it a calm clear night or a boisterous one?
Answer: A clear night, very still.
Ques. by Counsel: Is there not more or less firing about the Custom House at night by many persons unknown?
Answer: About the Custom House there is none at all.
Ques. by Counsel: How do you know that it was the ball from Postley’s pistol that killed Brownmiller?
Answer: I know it well. I saw the flash of the pistol in Postley’s hands at the same time Brownmiller fell by my side.
Ques. by Counsel: Do you swear positively that there were no words passed between Postley and Brownmiller or that you do not recollect of any other words?
Answer: No sir there were no other words said between Postley and Brownmiller after Brownmiller told Postley to let loose of Hays.
Ques. by Counsel: Did Brownmiller fall at the first, second or third shot?
Answer: He fell at the second shot.
Ques. by Counsel: Has the accused ever attempted to escape since his arrest?
Answer: No sir not that I know of.
Ques. by Counsel: If Brownmiller was on duty at the time where were his arms?
Answer: He was on duty that night but he was not on post at the time.
Ques. by Counsel: Did you see Postley’s pistol before it was fired, if so state whether it was loaded or not?
Answer: I saw the pistol in his hand that is all I know about it.
Ques. by Counsel: You stated that Postley had been out drinking. How do you know it?
Answer: I did not see him drink.
Ques. by Counsel: Where were you when Brownmiller told you he did not like any man to draw a revolver on him?
Answer: I was standing about 25 feet from the tent, and about 6 feet from the Custom House.
Ques. by Counsel: Had you not been in the habit of having liquor in your tent?
Answer: A little once in a while.
Ques. by Counsel: Did not Brownmiller take drinks of liquor in your tent or other places that afternoon or evening?
Answer: No sir he did not that afternoon. I was with him from about 12 o’clock that day until he was shot.
Ques. by Counsel: State to the Court whether you were with Brownmiller all that afternoon. State where you were together and if you were together all the time prior to this affair?
Answer: The first place I got with him was at the camp of the 48” Ohio Infty about 12 o’ck. Then we went from there to town together. From there we went to the Commissary. From the Commissary to the tent near the Custom House. We staid there till 4 o’clock and then we left the tent and went 14 blocks to our suppers and remained there till about half past five and then started back to the Custom House and remained there till Postley and Hays came.
Ques. by Counsel: Did you or Brownmiller drink any liquor from the time you left camp until you came to the tent the last time?
Answer: No sir.
Ques. by Counsel: On what duty were you at the time spoken of in your last answer?
Answer: Orderly for Gen. Gregory.
Ques. by Counsel: Did you and Brownmiller mess togther and where?
Answer: Yes sir we had our rations cooked in the east part of the town at a man’s house by the name of Mr. Watt.
Ques. by Counsel: Where was Brownmiller when Hays and Postley came up to the tent?
Answer: He was sitting in the tent.
Ques. by Counsel: Was not Sergt. Bourne behind the accused when the 2nd shot was fired and Brownmiller fell?
Answer: He was not behind. He was standing off a little to the left of him.
Ques. by Counsel: Were not the parties then present all about the accused at the time of the 2nd shot. If so, did not all or a part of the persons want Postley to let Hays alone as Brownmiller did?
Answer: Yes sir we were all about the Accused. For my part I wanted Postley to let Hays alone. I cannot say about the rest. Sergt. Bourne told him to put up his revolver. No one wanted to hurt him.
Ques. by Counsel: Had not Brownmiller been drinking in the forenoon?
Answer: Yes sir he had been a little intoxicated in the morning.
Ques. by Counsel: Was not the sleeve of Postley’s coat torn during this fray?
Answer: I do not know.
Ques. by Counsel: How much intoxicated had Brownmiller been in the morning. State fully?
Answer: He was able to walk well and behave himself. He staggered a little.
Ques. by Counsel: Have you stated all that Sergt. Bourne said during the fray?
Answer: Yes sir. I have stated all he said.
Ques. by Counsel: Did not Sergt. Bourne have an axe at the time of this fray?
Answer: I saw him have an axe after Postley shot Brownmiller.
The Court then adjourned to meet again tomorrow the 13” inst. At 10. A.M.
Houston, Texas. March 13” 1866.
10. A.M.
The Court met pursuant to adjournment. Present the same members as on yesterday. The Judge Advocate, the accused and his counsels.
Priavate James H Cass, Co “C.” 48” Ohio Infty. Was again called before the Court.
Ques. by Counsel: When did you first see Postley with a pistol. State distinctly?
Answer: I saw Postley have the pistol immediately after Brownmiller told him to let loose of Hays and not to use him so rough.
Ques. by Counsel: What kind of a pistol was it, whose patent and what caliber, state exactly as near as in your power?
Answer: I never saw the pistol until that night. I saw the pistol after Brownmiller was shot upstairs. I do not know the exact caliber of the pistol. I should judge the barrel to be about 2 ½ inches in length. The cartridges were copper and it was used without caps.
Ques. by Counsel: Before the firing spoken of in your examination in chief did not some person rush upon the accused from the steps of the Custom House?
Answer: No sir they did not.
Ques. by Counsel: For what purpose did Bourne have the axe in his hands of which you have spoken?
Answer: I do not know.
Ques. by Counsel: How far were you from the steps of the Custom House at the time referred to in your last answer but one?
Answer: I was about 6 or 8 feet.
Ques. by Counsel: What did accused say when you told him he ought to be ashamed of himself for shooting Brownmiller?
Answer: He did not say anything.
Sergt. Britton C. Bourne, Co. “C.” 48” Ohio Infty. A witness for the prosecution was duly sworn
Ques. Judge Adv.: State your name, rank and command?
Answer: Britton C. Bourne, Sergt., Co. “C.” 48” Ohio Vet. Vols.
Ques. Judge Adv.: Do you know the accused. If so state his name, rank and regiment?
Answer: I do not know the man very well. I have seen him for two or three weeks before this occurrence happened. I heard his name. It is Postley.
Ques. Judge Adv.: Did you see the accused in the month of February 1866, if so state where you saw him.
Answer: I did so. Saw him at Galveston, Texas several times.
Ques. Judge Adv.: State what day in Feburary 1866 you saw the accused?
Answer: It was on or about the 19” day of Feburary the last time I seen him.
Ques. Judge Adv.: State what you saw of him on that day?
Answer: I do not recollect seeing him in the day time at all. At about 9” o’clock in the evening I was passing the Custom House. I heard Hays talking loudly. I then went to the tent occupied by some of the Boys at the Custom House and told them they had better come out once take (Dewitt C) Hays into the tent, he was drunk. Postley and Hays had then got to the tent and Postley wanted Hays to go into the tent and Hays wanted Postley to go into the tent first and he told Postley I believe that he would not go in without Postley went in first. Postley then told him that he had had trouble enough with him and that he wanted him to go into the tent, and Hays would not do it and took hold of Postley and Postley hold of him. Brownmiller then came to the door of the tent and said he would take care of him or by “God he would take care of him or something like it, he swore something, I could not swear to the oath he swore. Postley then drew his revolver and put it almost against Brownmiller’s breast. Brownmiller then took hold of the revolver with the left hand. Postley then jerked the revolver away from Brownmiller and told him to stand back or he would shoot him. Hays and Postley then went to scuffling, and after they had scuffled a short time they both went on to the ground. I do not know which of them threw the other down. After they arose from the ground Postley fired the pistol off. I then picked up an axe, and Brownmiller told Postley that he did not like for any damn man to draw a revolver on him. Postley told him to stand back or so “help me God” I will shoot you. Then Brownmiller said shoot me and told him to use Hays easier. Postley then told him Brownmiller to stand back again or he would shoot him. Then Brownmiller stepped down off the steps of the Custom House. Postley told Brownmiller to stand back again or “so help me God” I will shoot you.” Brownmiller then told Postley to shoot me and then Postley fired. I did not see Brownmiller fall. Cass then told Postley to put up his revolver that he had killed Brownmiller. Postley then ran up stairs. I though Postley only fired twice. When Postley run up stairs. I went around the Custom House with the axe in my hand as I supposed he would try to run away in place of going up stairs.
Ques. Judge Adv.: Did you examine the body of Brownmiller after he was shot.
Answer: Yes sir I was there with the body for three quarters of an hour.
Ques. Judge Adv.: Where was Brownmiller hit with the ball?
Answer: Just above the eye I think. It was the left eye. I am not certain.
Ques. Judge Adv.: Was it after or before Postley fired the pistol off that you took hold of the axe?
Answer: After he had fired the first shot.
Ques. Judge Adv.: Why did you take hold of the axe and for what purpose?
Answer: When I took hold of the axe I done it with the intention of knocking the revolver out of Postley’s hands.
Ques. Judge Adv.: Did you make the attempt to knock the revolver out of Postley’s hands?
Answer: I did not.
Ques. Judge Adv.: State the reason why you did not?
Answer: Well the first shot I thought he fired in the air. I did not think he would fire on any man.
Ques. Judge Adv.: How far was Postley standing from you when you had the axe in your hand?
Answer: I suppose he was between five and six feet.
Ques. Judge Adv.: Did you make any threats against Postley?
Answer: I did not.
Ques. Judge Adv.: Did you hear anyone make any threats towards Postley on the night Brownmiller was shot?
Answer: I did not.
Ques. Judge Adv.: Did Postley see you have the axe in your hand?
Answer: I do not know.
Ques. Judge Adv.: Did Brownmiller have any weapons of any kind in his hands?
Answer: No sir.
Ques. Judge Adv.: Did Brownmiller have a scuffle with Postley, if so state all about it?
Answer: I do not know that you would call it a scuffle. I believe that Brownmiller did lay one hand on Postley and the other on Hays when Postley first drew his revolver.
Ques. Judge Adv.: State what occurred when Postley presented his pistol to Brownmiller’s head.
Answer: Brownmiller then took hold of the pistol with his left hand and Postley jerked the pistol out of his hand.
Ques. Judge Adv.: Where was Hays at this time?
Answer: Hayes and Postley were both together one had hold of the other.
Ques. Judge Adv.: How far was Brownmiller standing from Postley when he was shot?
Answer: I think about three or four steps perhaps three steps.
Ques. Judge Adv.: Who was in the tent when you first cam to it. Mention their names?
Answer: James Cass, Brownmiller, and I think some one else. I am not certain.
Ques. Judge Adv.: Who was present when Brownmiller was shot?
Answer: Cass, myself, Hays, Postley and Brownmiller. They were all the men I saw that were on the ground.
Ques. Judge Adv.: Did you see any other that were not on the ground?
Answer: Yes sir. I could not distinguish the men on the gallery upstairs and some on the lower gallery.
Ques. Judge Adv.: Were they there at the commencement of the fray?
Answer: I think not.
Ques. Judge Adv.: Were there any words passed between Postley and Brownmiller than what you have stated to the court?
Answer: Very few words of any kind. I do not remember.
Ques. Judge Adv.: Was there any other shots fired at the time Brownmiller was killed than those fired by Postley?
Answer: I think not. I did not hear any other shots, and I did not see any other revolver.
Ques. Judge Adv.: Are you positive that Brownmiller told Postley that he did not like any damned man to draw a revolver on him?
Answer: Yes sir. I am.
Ques. Judge Adv.: Did you hear Brownmiller conversing with Cass?
Answer: I believe not.
Ques. Judge Adv.: State to the Court when Brownmiller went on the steps of the Custom House?
Answer: Shortly after Postley fired the first shot.
Ques. Judge Adv.: Where did Postley stand when he fired the first shot?
Answer: About half way between the tend and cistern and about 12 feet from the Custom House.
Ques. Judge Adv.: Which way was Postley facing when he fired the first shot?
Answer: He was facing nearer the Custom House than he was towards the tent.
Ques. Judge Adv.: In what direction did Postley fire the first shot?
Answer: He looked to me as if he fired the pistol behind him towards the cistern.
Ques. Judge Adv.: Was that in the direction of where Brownmiller was standing?
Answer: No sir. It was not.
The Court then adjourned to meet again tomorrow at 10. A.M. the 14” inst.
Houston, Texas. March 14 1866. 10. A.M.
The Court met pursuant to adjournment. The same members present as yesterday. The Judge Advocate, the Accused and his counsel.
Sergt. Bourne was again called before the Court.
Ques. Judge Adv.: How long did Brownmiller live after he was shot?
Answer: Between fifteen minutes and half an hour.
Ques. Judge Adv.: Who was it shot Brownmiller?
Answer: Postley.
Ques. Judge Adv.: How do you know that it was Postley shot Brownmiller?
Answer: Because I saw the revolver in the revolver in Postley’s hand and see Postley fire towards Brownmiller.
Ques. Judge Adv.: When did this occur the shooting of Brownmiller. State month and day as near as you can?
Answer: In the month of February 1866. on the evening of the 19” of the same month.
Ques. Judge Adv.: Have you ever had a conversation with Postley about this affair?
Answer: I did one morning in the jail a few words.
Ques. Judge Adv.: State what that conversation was?
Answer: He said there was some seven or eight drunken men around him. I told him he was telling what was not so. He then said there was four or five. I then asked him if I was drunk and he said no.
Ques. by Counsel: Have you stated all that was said during the fray by the parties then present?
Answer: I believe that I have stated about all that I know about it.
Ques. by Counsel: Did Brownmiller approach Postely in a friendly manner when he came off the step. If so state how he approached him?
Answer: He made one or two steps towards him Postely and the words he used there was “to use Hays easier” or something of the kind. I could say that it was in a friendly or unfriendly manner.
Ques. by Counsel: Was Brownmiller excited when he came off the steps and approached Postley?
Answer: I think he was.
Ques. by Counsel: Did you see Brownmiller on the day this occurred and prior to the fray if so when?
Answer: No sir I think not.
Ques. by Counsel: After Postely jerked the pistol away from Brownmiller as you have stated where did Brownmiller go what did he do or say up to the time he was shot. State fully?
Answer: After Postley jerked the pistol from Brownmiller Postley told Brownmiller to stand back or he would shoot him. Brownmiller said he did not like for no man to draw a revolver on him. I think he moved over on to the steps he walked on to the steps. After he got on to the steps he made one or two steps towards Postley when he was shot.
Ques. by Counsel: When Brownmiller took the one or two steps towards Postley what did Postley say to Brownmiller?
Answer: Stand back or I will shoot you.
Ques. by Counsel: Did you see James Cass the day on which this affair took place before evening, if so when?
Answer: Not that I recollect of.
Ques. by Counsel: You say Brownmiller laid one hand on Hays and his other hand on Postley. Please state to the Court whether he did so in a friendly manner or otherwise?
Answer: I should say that he done it in a friendly manner.
Ques. by Counsel: State all that Brownmiller said when he laid his hand on Hays and Postley?
Answer: He told him that he would take care of Hays. I am not certain that he said any more words to him at that time.
Ques. by Counsel: Do you not recollect that Brownmiller said to Postley when Brownmiller laid his hand on him that by God we will take care of Hays?
Answer: No sir. I do not think I heard him saying such words. He might have said it but I do not think he did.
Ques. by Counsel: Did you not answer yesterday that you thought that Brownmiller said “by God we will take care of Hays”?
Answer: I think not. I do not think I said by God.
Ques. by Counsel: Were Brownmiller and accused acquainted with each other prior to the affray or were they strangers to each other?
Answer: I do not know.
Ques. by Counsel: Did you not hear the accused say during the fray that he wanted to go up stairs?
Answer: I think I did.
Ques. by Counsel: Have you stated all the conversations you had with the accused in the jail?
Answer: I stated all that I recollect of.
Ques. by Counsel: Do you remember the words Postley used when he said he wanted to go up stairs, if so state what words were used?
Answer: I do not recollect the words.
Ques. by Counsel: Had Brownmiller been drunk that day prior to the fray?
Answer: I do not know that he was drunk.
Ques. by Counsel: Was Brownmiller under the influence of liquor during the fray?
Answer: I do not think he was.
Ques. by Counsel: Did Postley say he wanted to go up stairs before or after Brownmiller laid his hands on him?
Answer: Before.
Ques. by Counsel: Have you had any conversations with any persons as to what you were to swear to on this trial, if so with whom did you have the conversations, state fully?
Answer: No sir.
Ques. by Counsel: Have you not had a conversation with the Judge Advocate of the Court prior to your being called to testify?
Answer: Yes sir.
Ques. by Counsel: Who was present at conversation?
Answer: The Judge Advocate and myself.
Ques. by Counsel: Have you not had conversation about this trial at which Jas. Cass, Tredline and other witnesses for the prosecution were present?
Answer: I have had conversation with them about the trial.
Ques. by Counsel: State when and where you had the conversation spoken of and what was said at these different conversations and who all were present and heard what was said?
Answer: The first I had with the Judge Advocate was in the hall. I made a statement to the Judge Advocate of the case between Brownmiller and Postley. No one was present but the Judge Advocate and myself. I had a conversation with the Judge Advocate and with Cass, McKee, Tredline, Doland, Hays and myself. I made a statement about the situation of the Custom House.
Ques. by Counsel: Did you not state to Jack Sheldon the morning after the fray that you intended to strike the accused with the axe at the time of the fray?
Answer: I believe I did. I intended to strike Postley on the arm and knock the pistol out of his hand.
Ques. by Counsel: Did you not have a conversation about this trial with Jack Shelton of the 48” Ohio Infty yesterday who is now confined in the guard house at this place?
Answer: He asked me about it. I had no particular conversation with him.
Ques. by Counsel: Did you not tell Jack Sheldon that you had intended to knock the accused down with the axe?
Answer: No sir.
Ques. Judge Adv.: You say that Brownmiller was excited. Did Brownmiller make any threats or use any violence towards Postley at the time Brownmiller came down the steps of the Custom House?
Answer: He did not make any threats. I think he did not use any violence. He might have sworn. I did not hear him.
Ques. Judge Adv.: At what time of the fray did Postley say he wanted to go up stairs?
Answer: When he first came to the tent.
Private John M. Dorland, Co. “B” 48” Ohio Vols. a witness for the prosecution was duly sworn.
Ques. Judge Adv.: State your name, rank and command?
Answer: John M. Dorland, private Co. “B.” 48” Ohio Vols.
Ques. Judge Adv.: Do you know accused, if so state his name and regt.?
Answer: Yes sir. James K. Postley. I do not know his regt.
Ques. Judge Adv.: What duty are you doing?
Answer: Printing in the Government Office.
Ques. Judge Adv.: Did you see the accused in the month of February, 1866. if so state when you saw him?
Answer: I saw him in the evening of the 19” day of February 1866.
Ques. Judge Adv.: State what you saw of accused on the evening of the 19” day of February 1866?
Answer: At first I heard a fuss down below. I sprang out of bed and stepped out on the balcony. I saw Postley and Hays clinched. I saw Postley throw Hays down. Postley says stand back and let me alone. Sergt. Bourne was standing behind Postley and told Postley to put up his revolver that nobody would hurt him, and then Hays jumped at Postley, when Postley threw him down. Postley said “stand back or so help me God I will shoot.” Postley fired one shot right behind him, the ball struck the cistern. I saw two flashes of the pistol besides the first one. I could not see which way Postley pointed the pistol. I heard someone below shout out Jerry was shot. With that I ran into the Office and put on my pants. While I was putting on my pants I heard Postley in the Adjutant-General’s Office. I went into the Adjutant General’s Office he was then loading his revolver. I then went to him and told him he had better not go downstairs that some of the boys down there might hurt him. He then told me he wanted his hat. I told him I would go down and try and get it for him. At that time Corporal McKee came into the Office and said he would go down and get the hat. By that I turned around and went into the printing office again. Postley followed me in and went up to Mr. Murphy who was lying in bed and says I have shot one man. I do not recollect the remainder of the conversation. I went out shortly after that. That is the last I have seen of Postley until I came here.
Ques. Judge Adv.: Did Postley fire the first shot in the direction of where Sergt. Bourne was standing?
Answer: No sir.
Ques. Judge Adv.: How do you explain your evidence when you say Sergt. Bourne was standing behind Postley and that Postley fired his pistol behind him?
Answer: Sergt. Bourne was standing to the left of Postley and Postley fired his pistol to the right.
Ques. Judge Adv.: Did you hear any threats made against Postley on the night spoken of?
Answer: No sir.
Ques. Judge Adv.: Where was Brownmiller standing when the first shot was fired?
Answer: I do not know. I did not see Brownmiller at all.
Ques. Judge Adv.: Do you know of any difficulty existing between Postley and Brownmiller?
Answer: No sir.
Ques. Judge Adv.: Did you see the body of Brownmiller after he was shot?
Answer: Yes sir.
Ques. Judge Adv.: Where was he hit?
Answer: About an inch and a quarter above the left eye.
Ques. Judge Adv.: What kind of a pistol did Postley use on that night and the size of it?
Answer: A small pistol a revolving one, the length altogether was about 5 inches long.
Ques. Judge Adv.: What size ball did it carry?
Answer: I do not know what the caliber it was small.
Ques. by Counsel: To whom did Postley say stand back and let me alone?
Answer: I could not see who it was.
Ques. by Counsel: Did Postley throw Hays down twice?
Answer: Yes sir.
Ques. by Counsel: Was there anyone standing in the direction of the first shot?
Answer: No sir.
The Court adjourned to meet again tomorrow the 15” inst. At 10. A.M.
Houston, Texas. March 15, 1866. 10. A.M.
The Court met pursuant to adjournment. Present the same members as yesterday, the Judge Advocate, the Accused and his counsel.
Private John M. Dorland was again called to the stand.
Ques. by Counsel: Did you see Jas. Cass on the day this fray occurred, if so where and who was with him?
Answer: I saw him in the evening in his tent. Brownmiller was with him.
Ques. by Counsel: Were not Cass and Brownmiller drinking liquor in the tent?
Answer: No sir, not as I saw.
Ques. by Counsel: Before the first shot state to the Court all the words you heard used by any one of the parties present at the fray?
Answer: I heard Postley say “I’ll shoot so help me God.” Sergt. Bourne told Postley not to shoot that no person would hurt him.
Ques. by Counsel: What was the position of parties before the first shot?
Answer: Hays was lying down on the ground a little to the left of Postley, Postley was standing to the right of Hays. Sergt. Bourne was standing to the left and rear of Postley.
Ques. by Counsel: Did Sergt. Bourne have the axe in his hand at the time spoken of in your last answer?
Answer: Not as I saw.
Ques. by Counsel: Could you have seen the axe if Sergt. Bourne had had one in his hand?
Answer: No sir.
Ques. by Counsel: What sound did you hear from the gallery below where you were standing?
Answer: I heard the voices of men before there was any firing.
Ques. by Counsel: State as distinctly as possible about the voices you heard. Give the Court an idea what the sound was like?
Answer: I could not understand what was said. The men were talking loud. There was no swearing. It sounded as though there was a riot.
Ques. by Counsel: What sounds waked you and caused you to get up and go out on the gallery?
Answer: The noise below that the men were making, it was not hollering nor yelling but it was loud talk.
Ques. by Counsel: Are you normally very hard to wake up after going to sleep at night?
Answer: Sometimes. I am normally easy to wake.
Ques. by Counsel: What reply did Murphy make to accused when he told him that he Postley had shot one man?
Answer: I do not remember the reply.
Ques. by Counsel: How long a time intervened between the first and last shots fired by Postley?
Answer: About half a minute.
The prosecution here closed.
William Hoofman, citizen, a witness for the defense was duly sworn.
Ques. by Counsel: State your name, age, occupation and residence?
Answer: William Hoofman, 25. Clerk in Post Office. Galveston, Texas.
Ques. by Counsel: Where is the Galveston Post Office located, in what building?
Answer: In the Custom House.
Ques. by Counsel: State whether or not you were present at or within hearing of a fray which took place near the Custom House on or about the 19” of Feby last?
Answer: I was in hearing of it. I was in the middle of the Post Office.
Ques. by Counsel: Relate to the Court all that you heard or saw at that time and place, state fully?
Answer: I heard that there was a row outside. I did not take any notice of it at first but kept on with my work. After they had been quarreling for some time I heard a voice saying “Shoot God damn you shoot.” With that I went to the door and looked out but I could not see anything for there was a young fellow by the name of McKee standing in front of me. But at last I got a chance to get my head out of the door. I saw two or three figures moving back and forward and then this same voice said “Shoot God damn you shoot.” Two or three times and I heard another voice say “I don’t want to shoot you.” I think he said I don’t want to shoot you just let me alone. With that I turned back to go to my work and just as I turned around I heard three shots fired. I turned and looked around again through the space that was in the door. I saw two or three figures moving. I turned back and one of the clerks asked if any body was hurt. I told him I did not think there was for I had heard no one holler. I went back to my work. About five minutes after I had been working a soldier came in and asked for a candle and said there was someone shot out there. One of our clerks gave the man that came in a candle. We went out then with him and saw the man lying there.
Ques. by Counsel: Who is Jim McKee, a soldier or a citizen?
Answer: A soldier.
Ques. by Counsel: If you can remember any other words spoken by any of the parties at this fray, please state them?
Answer: No sir. I do not remember any.
Ques. by Counsel: Was Jas. McKee with you in the Office when the fray began, if so could he have heard what was said?
Answer: He was in the Office. He would have heard all that was said.
Ques. by Counsel: Were the words “shoot and be God damned” uttered in a threatening manner?
Answer: I can not say.
Ques. by Counsel: By whom did the words you heard appear to be uttered, by a sober man or by one in liquor?
Answer: One in liquor.
Ques. by Counsel: Where was the man that used the revolver, on the gallery or in the yard?
Answer: When I saw him he was lying on the gallery.
Ques. by Counsel: Was it the man who was shot who used the words “shoot and be God damned”?
Answer: No sir I think it was the man that was lying in the Gallery.
Ques. by Counsel: How do you come to the conclusion that the man who used the words was lying in the Gallery and not the one who was shot?
Answer: Because I heard him repeat the words while he was lying there.
Ques. Judge Adv.: Was it before or after the firing that you heard the words “God damn you shoot”?
Answer: Before the firing. I heard the words from the inside the Office.
Ques. Judge Adv.: When did you hear the words repeated?
Answer: After I went out there.
Ques. Judge Adv.: Was it after the firing had ceased?
Answer: Yes sir.
Ques. Judge Adv.: How long after the firing had ceased did you hear the words “God damn you shoot”?
Answer: Five or ten minutes.
Ques. by Counsel: When you first heard the words “Shoot and be God damned” where was the man who uttered them?
Answer: I cannot tell. I think it was in the direction of the firing.
The Court adjourned to meet again tomorrow the 16 th inst. at 10. A.M.
Houston, Texas. March 16” 1866. 10. A.M.
The Court met pursuant to adjournment, present the same members as yesterday, the Judge Advocate, the Accused and his counsels.
The Counsel for the defense asked for time to produce a material witness for the defense which was granted by the Court.
The Court then adjourned to meet again on Monday, the 19” inst. at 10. A.M.
Houston, Texas. March 19. 1866.
The Court met pursuant to adjournment, present the same members as on Friday, the Judge Advocate, the Accused and his Counsel. The Court then adjourned until one P.M.
The Court met pursuant to adjournment. Present the same members as in the forenoon, the Judge Advocate, the Accused and his Counsel.
J. E. Paintir, A. A. Surgeon, U.S. Army, a witness for the defense was duly sworn.
Ques. by Counsel: State your name, rank and command?
Answer: J. E. Painter, Contract Surgeon, Freedman’s Brigade[?].
Ques. by Counsel: State where you were on or about the 19” Feby last, state minutely.
Answer: I was in the Custom House at Galveston in the 2nd story front part.
Ques. by Counsel: State whether or not you examined the body of a dead soldier on the evening of the 19” Feby 1866.
Answer: I examined a soldier before he was dead.
Ques. by Counsel: State all you know concerning a row or riot on that evening. State whether the riot was going on all the evening or not.
Answer: In the early part of the evening about dark I was in the Printing Office, in the back part of the building, in the 2nd story, when I heard loud words, quarreling. I went out on the balcony and saw that there was a drunken brawl among some soldiers in front of the guard tent, one soldier calling to another to come down and he would fight him and I think he said shoot him. I then went to my room where I remained until I heard three pistol shots fired, which I should judge was about one hour and a half after I was on the balcony.
Ques. by Counsel: Inform the Court whether or not the men who stood about you while you were examining the body of the soldier were intoxicated or otherwise?
Answer: There was several that were either very much excited or intoxicated. A sergeant who held the candle for me was in my opinion drunk. I think so by his stupidity and wavering of his body and arms.
Ques. by Counsel: Why did you leave the gallery and go into your room as spoken of?
Answer: I did not see any use in standing there. I saw that there would probably be a fight among the guards and I did not care to witness it.
Ques. by Counsel: Did you hear many shots about the Custom House that night, state how many and whether there is normally any firing about there?
Answer: I heard three. There is usually at that time some firing almost every night if not in the immediate vicinity of the Custom House near enough to be heard there.
Chaplain Honey 4” Wis. Cavalry a witness for the defense was duly sworn.
Ques. by Counsel: State your name and rank?
Answer: George W.[?] Honey, Chaplain of the 4” Wis. Cav.
Ques. by Counsel: In what capacity are you now serving?
Answer: Serving under Special Orders No. 100. from General Wright’s Office, orders to report to General Gregory.
Ques. by Counsel: Do you know the accused if so give his name and state how long you have known him?
Answer: I do. J. K. Postley. I became acquainted with him about the early part of August last.
Ques. by Counsel: Are you acquainted with the general character and reputation of the accused among those who know him, if so state what that reputation is good or bad?
Answer: No sir, I do not know what his character is among his many acquainted, but as far as I do know, his general character is good.
Ques. Judge Adv.: What opportunity have you of knowing what the general character of the accused is?
Answer: My opportunities have been somewhat limited, it consists in the acquaintance of the accused formed in General Hospital at San Antonio. I also have met him at Gen. Wright’s Headquarters and Gen. Sheridan’s Hdqrs. at New Orleans, at Gen. Gregory’s Hdqrs at Galveston.
Ques. Judge Adv.: Was you in the same neighborhood of the accused in the month of Feby 1866?
Answer: I was.
Ques. Judge Adv.: Were you acquainted with his reputation at that time?
Answer: His reputation in the office was good. Outside the office I know nothing about it. Nothing about it.
The Counsel for the defense asked for time to prepare his final defense. Time was granted by the Court until tomorrow morning at 10. o’clock the 20” inst.
Houston, Texas. March 20” 1866. 10. A.M.
The Court met pursuant to adjournment. Present the same members as yesterday, the Judge Advocate, the accused and his counsel. On motion of Judge Baldwin, Counsel for the accused time was asked to prepare final argument until tomorrow morning at 10 o’clock which was granted by the Court and the case was set over till that time.
Houston, Texas. March 21” 1866. 10. A. M.
The Court met pursuant to adjournment. Present the same members as yesterday, the Judge Advocate, the Accused and his counsel.
The Counsel for the Defense introduced and made the following written argument marked “A.” hereunto annexed. [inserted here for continuity]
“A” March 1866.
The United States vs. Postley for murder. Before Military Court convened at Houston, Texas.
In order to see clearly to what the evidence is to be applied let us look for a moment to the statutes of this state, which furnish the law of the subject.
“Homicide is the destruction of the life of one human being by the act, agency or procurement or culpable omission of another.” Penal Code Art. 541.
“Homicide of a public enemy by poison or the use of poisoned weapons is not justifiable” id. 549.
“Homicide of a public enemy who is a deserter or a prisoner of war or the bearer of a flag of truce is not justifiable” id 550.
It is lawful to kill a public enemy. A public enemy is any person acting under the authority or enlisted in the service of any government at war with this state or the United States. id 548.
Manslaughter is voluntary homicide of sudden passion arising from an adequate cause, but neither justified or excused by law. id 594.
“The provocation must arise at the time * * and be caused by the passion arising out of the provocation” id 596.
The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment or furor rendering it incapable of cool reflection” id. 596.
“Manslaughter is of various degrees of culpability x x and is punished by imprisonment in the Penitentiary not less than two, nor more than five years” id. 602.
Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature or being within this state with malice aforethought either express or implied shall be deemed guilty of murder” id. 607.
All murder committed by poison, starving, torture or with express malice or committed in the perpetration of arson, rape, robbery or burglary is murder in the first degree; and all murder not of the first degree is murder of the second degree.” id. 608.
“The punishment of murder in the first degree shall be death. The punishment of murder in the second degree shall be confinement in the Penitentiary for not less than five years.” id. 612a.
With this law in the eye we approach the serious facts in the cause under the fullest assurance that it is not a case which by law would justify the infliction of the death penalty and that to kill the accused upon this accusation itself would be murder of the most premeditated character.
There is not a particle of proof tending to show the existence of malice or premeditation. It was done upon sudden heat and great provocation.
The provocation must have been extreme.
All the witnesses present concur in saying the accused warned off his assailant twice at least with the earnest declaration “stand off or so help me God, I’ll shoot”!
This is a mighty fact in the cause. Had the accused desired to inflict injury, is it possible in the nature of things, that he could have used these words, repeated and reaffirmed? That is not the language of a “heart lost to social duty and fatally bent upon mischief.”
He did not wish to hurt “so help him God” he did not! Nor was he bound to strike a retreat. No man has the right to make another man retreat or fall back at the risk of his good name and fame as a brave and honorable man. It should not be forgotten that the accused is a soldier and viewed the situation with a soldier’s eye and from a soldier’s stand point.
The parties were face to face, and the warning “stand off:” not once, but stand off twice repeated.
Three shots were fired, and the first one clearly at or toward no person.
There are none of the insignia of malice aforethought.
The proof is quite clear that the accused was of good disposition and peaceable character. Another fact. It was night. Disinterested persons unbiased in their feelings did not see the thing done. The accused was attached to the Freedmen’s Bureau: the deceased was a member of Regiment of white men. It is not unknown to the Court that everything connected with black people in this country is warped by a certain prejudice.
Here prejudice is to be left behind. Justice without prejudice or favor is the object.
It is as certainly proved that the warning to ‘stand off” was given before the shooting, as it is that the man was killed.
This is a fact as to which there is not a possibility of doubt.
How then if there was malice or if the accused was acting otherwise than in self-defense could he have twice called out for them to stand off. In the terrible excitement of battle or fray men don’t utter such cries for pastime or amusement. Postley’s life was in danger and with the instinct of a brave and generous soldier he calls out stand off or so help me God, I’ll shoot”! Is it natural that he should have thus twice called out in the dark in the midst of a squabble if he had not been of the overwhelming belief that he was in danger. Would he could he have thus called out?
The undeniable fact that he did thrice call out is inconsistent with any other than self-defense.
The testimony of the witnesses may be colored by favor or prejudice.
But undeniable facts are always consistent with nature and truth. Truth is always consistent with truth. It cannot be possible in the nature of things that he should have thus called out to stand off unless there was pressing occasion for it.
Here is a fact that the mind searching for the truth can seize upon with unlimited confidence.
Then add that other fact, that the gentlemen who testified as to his good character for attention to business and good deportment, speak highly of him.
All these facts refute any presumption of malice which the law sometimes infers from a killing of a human being. They do more. They overthrow all other proof and so weaken it that the mind is led irresistibly to the conclusion that it requires prejudice to help any conclusion of malice.
If then there was no malice, and it is most clear that there could have been none, the accused stands at the bar of truth and justice acquitted of crime. Yes he was the agency through which the deceased lost his life; but the man who fired the fatal shot, is no more guilty of crime in his death than is the brave soldier on the battlefield who is the agent of death to those he fires toward.
There was no time for deliberation. The act was quick, sudden, unpremeditated. This Court has amble time for meditation, and we trust it will be actuated by the highest principles of justice and mercy in its finding. All which is respectfully submitted for the Prisoner.
Houston, Texas } D. J. Baldwin.
21 March 1866. }
The Accused having no further evidence to offer in the defense the Judge Advocate submitted the case to the Court without remark.
The Court was then cleared for deliberation and having maturely considered the evidence addressed find the Accused Private James K. Postley Company “B.” 18” New York Cavalry as follows:
On the Specification “Guilty”
Except the words with malice afore-thought.
On the Charge “Guilty”
Of murder in the second degree.
And the Court do therefore sentence him, Private James K. Postley Co. “B.” 18th New York Cavalry as follows: That he forfeit to the United States all pay and allowances that are now due or may hereafter become due, that he be dishonorably discharged the service of the United States and be confined at hard labor for the period of Twenty-one (21) years at such place as the Commanding Officer may direct.
A. F. Search.
Major 12” Ills. Cavalry
President of the Court
Edward Mann.
Captain (late Lieut) 12. Ills Cavalry.
and Judge Advocate.
Headquarters, East. Dist. Of Texas.
Separato Brigade.
Houston, Tex. April 3rd 1866.
II. The proceedings findings and sentence in the case of Private James K. Postley, Co. “B.” 18th New York Cav. Are approved and the Dry Tortugas designated as the place of confinement. The prisoner will be sent under guard with a copy of the order in his case to the Comdg. Officer Post of Galveston, Texas, who will forward him to the Provost Marshal General, Military Division of the Gulf for the execution of his sentence.
E. H. Powell
Lt. Col. 10th U.S.C.I.
Commanding
Headquarters, Dept. of Texas.
Galveston, May 29” 1866.
The designation by Lieut. Col. E. H. Powell, Commanding, Eastern District of Texas, of the Dry Tortugas, Florida as the place of confinement at hard labor in the above case of Private James K. Postley, Co. “B.” 18th New York Cav is approved.
H. G. Wright
Maj. Genl. Commanding
Endorsement
Hd Qs. East. Dist. Of Texas
Separate Brigade.
Houston, Texas. April 3d. 1866.
Respectfully forwarded to the Judge Advocate General of the Army.
E. H. Powell
Lt. Col. 10th U.S.C.I.
Comdg.
Endorsement
Bureau Mil. Justice.
April 17th. 1866.
Respectfully returned to Lt. Col. E. H. Powell, Commdg East District Texas.
It is deemed desirable that cases like the within, in which convicted prisoners are sentenced to places of confinement outside the limits of the Department should be transmitted to this Bureau through Department Headquarters; thus affording the Dept. Commander opportunity to take such action with reference to the place of confinement designated as he is by law authorized to take in the premises.
J. Holt.
Judge Adv. Gen.
Hd. Qrs. Eastern. Dist. of Texas.
Separate Brigade.
Houston, Tex. May 2. 1866.
Respectfully forwarded to Dept. Hd. Qrs.
E. H. Powell
Lt. Col. 10th U.S.C.I.
Commanding.
Postley escaped from the guard house at New Orleans, LA., May 18, 1866, while enroute to the Dry Tortugas. There is some evidence that he may have ended up as a barkeeper in San Francisco where he was convicted on another offense and was listed as a prisoner in San Quentin by 1880.
