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.
