ROBERT W.WOODRUFF
LIBRARY
MILITARY COMMISSION.
PROCEEDINGS
IN THE
CASE OF THE
UNITED STATES
AGAINST
DUNCAN G. McRAE, WILLIAM J. TOLAR, DAVID WATKINS,
SAMUEL PHILLIPS AND THOMAS POWERS, FOR THE
MURDER OF ARCHIBALD BEEBEE AT FAYETTE-
VILLE, NORTH CAROLINA, ON THE 1.1TH
DAY OF FEBRUARY, 1867,
TOGETHER WITH THE
ABODlfiNT OF ED. GRAHAM HAYWOOD,
SPECIAL JUDGE ADVOCATE,
IN REPLY TO THE
SEVERAL ARGUMENTS OF THE COUNSEL FOR THE DEFENCE.
Colonel J. V Bomford, U. S. A., President of Commission.
Major Robert Avery, U. S. A., Judge Advocate.
Reported by Chas. Flowers and Chas. P. Young, Phonographic Reporters,
No. 119 West St., New York.
PUBLISHED FOR
ROBERT AVERY, U. S. A., Judge Advocate,
RALEIGH, N. C.
1867.
INDEX.
A Page.
Armstrong, John 6
Arey, Joseph 42
Arey, Sebastian 192
Atkinson, Jas. W. 208
Avery, Rob't argument of 303
B
Burkett, Bryant 66
Brown, Edward 83 '
Beckton, Simon 89
Bond, Israel 278
Brown, James W. 283
Blake, Isham 296
C
Carpenter, Wm. H. 62
Cash well, David 237
Chandler, Griffin 276
Carrow, Sara'l D. 286
D
Douglass, James 69
Daley, John 103
Davis, Ichabod B. 141
Davis, Mrs. Lucy J. 158
Demming, Guerdon S. 242
E
Elliott, Eliza Ann 35
Evans, Patrick 92
F
Faircloth, Washington 226
Gr
Gilmore, Chels 83
H
Hardie, Rob't W. 22
Horn, Henry W. 42
Hunter, Calvin 42
Hagans, Henry 55
Hollingsworth, Geo. W. 160
Hendricks, Thos. A. 223
Haywood, Ed. G. argument of 305
J
Jenkins, Thos. 79
Jones, James H. 218
K
Kendricks, James 57
Kenstler, Francis 257
Kirk, A. A. Surg. Louis R., 268
Kenstler, Francis 301
L Page.
Leary, Matthew N. 3
Lord, Rachel 105
Leggett, Jordan G. 147
Lutterloh, Ralph B. 162
Lockamy, Henderson 183
M
McDuffie, Wm. C. 21
McLean, Duncan N. 63
McNeil, James 74
Mitchell, Robert 117
Mullins, John T. 199
My rover, Jas. H. 215
Morgan, Matthew 217, 222
McAlister, Duncan J. 240
McPhail, Win. J 249
McKay, A. E. 250
McKeethan, A. A. 272
McLean, Archibald 275
N
Nixon, James L. 33
O
Oliphant, David 109
P
Porter, Wm. R. 64
Pickett, Phillip 76
Phillips, Samuel A. 120
Powers, Edward P. 169
R
Reynolds, Jesse 52
Smith, Louis 16
Strange, Jas. W. 41
Simmons, Robert 47
Shaw, John 97
Smith, Geo. W. 135
Smith, Rufus 136
Smith, John X. 140
Stewart, Dilly 250
Sykes, Henry 287
Smith, Surg. Wm. F. 302
T
Toomer, Sam. 29
Taylor, Philemon 253
W
Wright, Wiley 251
Watson, Walter 262
Y
Y oung, aGljas.^P. ^ £ 301
«v 1: *a ! G VA i
PBOCEEDIIVGS
OF A
MILITARY COMMISSION,
CONVENED AND HELD AT RALEIGH, N. C., BY VIRTUE OF THE FOLLOWING
ORDER, VIZ :
Headquarters Second Military District.
Charleston, S. 0., June 18th, 1867.
Special Orders, J
No. 75. j
\ Extract.~\
********
II. A Military Commission is hereby appointed
to meet at Raleigh, N. C., at 10. A. M., on the
21th of June inst., or as soon thereafter as practi-
cable, for the trial of such prisoners as may be
properly brought before it:
detail for the commission:
1. Colonel J. V. Bomford, 8th Infantry.
2. Bvt. Lieut. Col. Thos. P. Johnston, Capt. A.
Q. M., U. S. V.
3. Capt. P. II. Remington, 8th Infantry.
4. 2d Lieut. C. E. Hargous, 40th Infantry.
5. 2d Lieut. Louis E. Granger, 40th Infantry.
Bvt. Maj. Gen. R, Avery, Major V. R. C.,
Judge Advocate.
The commission will sit without regard to
hours.
* * * * * * * *
By Command of
Major General D. E. Sickles :
J. W. CLOUS,
Capt. 38th U. S. Infantry,
A. D. C. and A A. A. G.
Offiical:
-J. W. Clous, Capt. 38th Infantry,
A. D. C. and A. A. A. G.
Raleigh, N. C., July 22d, 1867.
The Commission met pursuant to the above
order.
Present: Colonel J. V. Bomford,
8th Infantry,
Bvt Lieut. Col. Thos. P. Johnston,
Capt. A. Q. M. U. S. V.
Capt P. H. Remington,
8th Infantry.
2d Lieut. C. E. Hargous,
. 40th Infantry.
2d Lieut. Louis E. Granger,
40th Infantry.
Bvt. Maj. Gen. R. Avery,
Major V. R. C. Judge Advocate.
The Judge Advocate stated that he had been
mustered out of his volunteer rank, and that his
rank would hereafter appear of record, as 1st
Lieut 44th Infantry U. S. A.
The Judge Advocate then read the following
extract from an official letter, addressed to the
Judge Advocate, dated, Headquarters Second
Military District Charleston S. C. 21st June 1867.
*****
The Maj. General directs that you employ Ed.
Graham Hay wood to assist you in the prosecution
of these cases *****
Which letter was signed.
J. W. CLOUS,
Capt. 38 Infantry, A. A. A. G.
Whereupon Ed. Graham Haywood, Esq., At-
torney and Counsellor at Law, was introduced as
Counsel to assist the Judge Advocate in the
prosecution. Tbe Commission then proceeded to
the trial of William J. Tolar, Duncan G. McRae,
Thomas Powers, Samuel Phillips and David Wat-
kins, otherwise called Monk Julia, all citizens of
Cumberland County, in the State of North Caro-
lica, who being called into the court, and having
heard the order read, convening the Commission,
were asked if they had any objection to any mem-
ber named therein, to which they replied in the
negative.
The members of the Commission were then
severally, duly sworn by the Judge Advocate, and
the Judge Advocate was then duly sworn by the
President of the Commission, all of which oaths
were administered in the presence of the accused',
and Chas. Flowers was duly sworn by the Judge
Advocate as Recorder of the Commission.
The accused here asked leave to introduce as
their Counsel,"Samuel F. Phillips and Ricbafd
Battle Esqrs. of Raleigh N. C. Thomas C. Fuller
and James McRae, Esq., of Fayetteville, and
Robert Strange Esq., of Wilmington N. ' C.
All Attorneys and Counsellors at Law which
request was granted by the Commission, and they
were duly introduced as Counsel for all the ac-
cused.
The Counsel for the accused, hereupon presen-
ted the following plea to the jurisdiction of the'
Commission.
United States of America,
District of NoHh Carolina.
Duncan G. McRae, William J. Tolar, David
Watkins, Samuel Phillips and Thomas Powers
Defendants, Ats. of the United States of America
Plaintiffs.
And the said Defendants !n their own proper
persons come in and defend the vv rong, and pray
judgement of the charge and specification, on the
part of the prosecution, because they say that tbe
crime with which they stand charged, was com-
mitted in the County of Cumberland, in the State
2
PROCEEDINGS OP A MILITARY COMMISSION,
of North Carolina, and that the Superior Court of
Law for Said County, has lull and complete ju-
risdiction of the said crime, charged against
them; arid because they say that this Court has
not jurisdiction of the said crime. Whereupon
they pray judgement whether the Court will
further take cognizance of the said charge and
specification <fcc.
The Commission was then cleared for delivera-
tion, and after some time so spent was reopened,
and the Judge Advocate announced that the
Commission overruled the plea to its jurisdiction
in this case.
The accused were then arrainged on the follow-
ing charge and specification :
Charges and Spedifications Preferred
against William J. Tolar, Duncan G. Mc-
Rae, Thomas Powers, Samuel Phillips and
-David Watkins, otherwise called Monk
Julia, all Citizens of Cumberland County
in the State of North Carolina.
Charge—MURDER.
Specification:—In this that William J. Tolar,late
of the County of Cumberland, in the State of
North Carolina, Duncan G. McRae, late of the
same place, Thomas Powers late of the same
place, Samuel Phillips late of the same place and
David Watkins, otherwise called Monk Julia,
late of the same place, on the eleventh day of
February in the year of our Lord one thousand
eight hundred and sixty seven, at, and in the
County of Cumberland aforesaid, in and upon
one Archibald Beebee, a person of color other-
wise called Archibald Warden, otherwise called
Archy Beebee otherwise called Archy Warden,
feloniously, wilfully, and of their malice afore-
thought did make an assault.
And that the said William J. Tolar, a, certain
pistol, then and there charged with gunpowder
and one leaden bullet, which said pistol, he the
said William J. Tolar, in his right hand then and
there, had and held, then and there did discharge
and shoot off, to, against, and upon the said
Archibald Beebee otherwise called Archibald
Warden, otherwise called Archy Beebee other-
wise called Archy Warden, and the said William
J. Tolar, wi'h the leaden bullet aforesaid, out of
the pistol aforesaid, then and there, by force of,
the gunpowder aforesaid, bv the said William J.
Tolar, discharged and shot "off as aforesaid, then
and there did strike, penetrate, and wound the
said Archibald Beebee, otherwise called Archi-
bald Warden otherwise called Archy Warden
otherwise called Archy Beebee, in and upon the
left side of the head, of him, the said Archibald
Beebee, otherwise called Archibald Warden,
otherwise called Archy Beebee, otherwise called
Archy Warden, near the back of the head of him
the said Archibald Beebee, otherwise called
Archibald Warden, otherwise called Archy Bee-
bee, otherwise called Archy Warden, near the
left ear of him the said Archibald Beebee, other-
wise called Archibald Warden, otherwise called
Archy Beebee, otherwise called Archy Warden,
giving to him the said Archibald Beehec, other-
wise called Archibald Warden, otherwise called
Archy Beebee, otherwise called Archy Warden,
then and there with the leaden bullet aforesaid,
discharged and shot out of the pistol afore-
said by the force of the gunpowder afore-
said by tbe said William J. Tolar in and upon the
left side of the head of him, the said Archibald
Beebee, otherwise called Archibald Warden,
otherwise called Archy Beebee, otherwise called
Archy Warden, near the said back of the head of
him tbe said Archibald Beebee, otherwise called
Archibald Warden, otherwise called Archy Bee-
bee, otherwise called Archy Warden, near the
leit car of him, the said Archibald Beebee, oth-
erwise called Archibald Warden, otherwise called
Archy Beebee, otherwise called Archy Warden,
one mortal wound of the depth of five inches,
and of the breadth of half an inch, of which said
mortal wound he the said Archibald Beebee,
otherwise called Archibald Warden, otherwise
called Archy Beebee, otherwise called Arcliy
Warden, then and there instantly died.
And that tbe said Duncan G. McRae, Thomas
Powers, Samuel Phillips, and David Watkins,
otherwise called Monk Julia, then and there
feloniously, wilfully, and of their malice afore-
thought, were present, aiding, abetting, comfort-
ing, assisting and maintaining the said William
J. Tolar, in the felony and murder aforesaid, in
manner and form aforesaid, to do and commit ;
and so that the said William J. Tolar, Duncan G.
McRae, Thomas Powers, Samuel Phillips, and
David Watkins, otherwise called Monk Julia, him
the said Archibald Beebee, otherwise called
Archibald Warden, otherwise called Arcliy Bee-
bee, otherwise called Archy Warden, in tbe man-
ner and by the means aforesaid, feloniously, wil-
fully, and of their malice aforethought, did kill
and murder against the peace aDd dignity oi the
State of North Carolina, and of the United States
of America.
All this at the Town of Fayetteville, in the
County of Cumberland, in the State of North
Carolina, on or about the eleventh day of Feb-
ruary in tbe year of our Lord, one thousand eight
hundred and sixty-seven.
ROBT. AVERY. .
Maj. V. R. C. Bvt. Maj. Gen'l. Vol's.
Insp. R. R. F. & A. L. N. C.
Judge Advocate G'. C. M.
Raleigh, N. C., May 21, 1867.
The charge and specification were then read
aloud by the Judge Advocate.
The Judge Advocate then addressing the ac-
ensed, said: You, William J. Tolar, Duncan G.
McRae, Thomas Powers,;Samuel Phillips and
David Watkins, otherwise called Monk Julia,
have heard the charge and specification pre-
ferred against yon, how say you—Guilty, or not
guilty ? To wnich the accused, William J. To-
lar, Duncan G. McRae, Thomas Powers, Samuel
Phillips and David Watkins, otherwise cal.ed
Monk Julia; pleaded as follows:
To the specification—not guilty.
To the charge—not guilty.
The Counsel for the accused, offered the fol-
lowing request, on behalf of Duncan G. McRae,
one ol the accused, viz:—That his case be se
vered, and he be put upon a separate trial, for the
offence of which he is charged.
- The Judge Advocate said: I object to these-
verance of this case from tbe others, for two
reasons. 1st. That it is in the election of the
Commonwealth to try him separately, if it so
chooses, hut that it will be a great expense to tbe
government, and an unnecessary prolongation of
this trial; and, secondly, that the crime was in
the nature of a conspiracy, that the parties are
joiutly guilty, and that it would be necessary for
a proper protection of the interests of the Gov-
eminent, that these cases should be tried to-
gether. There has been no cause shown why it
should be done. The Court has heard no rea-
sons given.
The Counsel for the accused then gave the fol-
lowing reasons
May it please the Court:—The case in behalf
of Mr. McRae is unconnected with a large por-
tion of the case now before the Court. He was
the examining magistrate, before whom the de-
ceased had been brought for the purpose of ia-
CONVENED AT RALEIGH, NORTH CAROLINA.
vestigating the offence with which he was
Charged. We understand that he was, and re-
mained sitting at the place, occupied by him du-
ring that investigation; that he was not in the
crowd or about the crowd. A great deal of the
testimony that will be heard before th§ Court,
involving these other persons, as we understand
does not touch him at all; and we therefore
thought it a case that appealed strongly to the
■discrimination of the Court, for allowing him to
be judged without that sort of connection -arid
complication with the case that may be made
out against the others. We think "it goes to
complicate Mr. McRae unnecessarily, with the
case that may be made out against these other
parties. On that account it is a matter that ap-
peals very strongly to the discrimination of the
-Court, to let him be heard alone. He was com-
mittiug magistrate, he sat where he was sitting
during the trial, when the homicide was commit-
ted; he is not charged on the ground that he
was in the crowd at all, and he wishes, in favor
of his life, and the serious charge that is brought-
against him, that he may be tried upon the facts
as tbey appear against him alone, and not be
mingled up, as he thinks he must be, by having
his case heard at the same time, with the accu-
sations against these other persons.
The Counsel for the Prosecution then offered
the following remarks.-
The Government of the United States, through
its officials, has preferred a charge against these
men jointly. The general practice in the Courts
of law is for the Court not to allow a severance,
where the prosecuting officer for the Govern-
ment insists upon it that it is not necessary.—
There are some very rare cases where, in spite of
the opposition of the Government official, the
Court will allow a severance, but tbe cases are
very rare indeed. One instance suggests itself
to my miud, and is a strong case, where the de-
fence say that to defend one of their clients they
will have to convict the others. That is a strong
ground for a severance, and the Court, we think,
will not hear to a severance, except it be foi
some such strong reason as that.
There was an important case which came be-
fore the Supreme Court of the United States,
which I recall. The case I refer to was that of
Marchant and Colson in the Supreme Court of
the United States in the year 1827. Judge Strong
gave the opinion—"Where two or more persons
are jointly charged in the same indictment for a
capital offence, they have not a right to be tried
separately, without the consent of the prose-
cut or."
It has been stated by the gentleman who rep-
resents Mr. McRae in this case, that he was the
committing magistrate, and occupied his seat
until the perpetration of the murder. . That re-
mains to be proved, for it is alleged, by a part
of the witnesses, that Mr. McRae left his seat,
went out in the balcony in front ol the house,
and by his voice exhorted the crowd who were
going on with the murderons deed.
If Mr. McRae's position be such as the Coun-
sel have stated, he is not guilty at all, and I
can't see any serious evil that can happen to
him; why he cannot make his defense as com-
pletely if he be not guilty at all, in a joint trial,
as if he were tried by himself. The eomplica-
tion does not involve him unless he made him-
self a party to what the others committed, and
if he did make himself a party to what these
virtual participators in the offence were guilty
of, then it is necessary to prove their innocence
in order to prove his. It seems to me to he one i
of those cases where the interest of the Govern- j
ment demands that all of these parties be tried
together. Therefore we insist upon it.
The objection of the Judge Advocate to the
severance of the case of Duncan G. McRae was
sustained by the Commission.
The Commission being ready to proceed with
the examination of witnesses:
Matthe w N. Leary, jr., a witness for the prose-
cution, having been first duly sworn, testified as
follows:
Examined by the Counsel for the prosecution.
Q. What is your name ? A. Matthew N. Lea-
r!> Jr- Q- Where do you reside? A. In Fay-
etteville. Q. What is your occupation in Fay-
etteville? A. Saddle and harness maker was
previous to the war. Since the war I have ad-
ded to that a small grocery in the same building.
A. Have you been a free man all your life ? A.
All my life, sir. Q. Where did you reside in the
beginning of the year 1867 ? A. In Fayetteville.
Q."Did you know one Archy Beebee there? A.
I did sir, by sight. I knew'hiin when I saw him.
Q. Where is he now ? A. Dead. Q. When was
he killed? A. On the 11th of February. Q.
What day of the week ? A. Monday afternoon.
Q. Where was he killed ? At or near the South
cast corner of the market house. Q. Can you
describe the market house in the town of Fay-
etteville so as to make the Court understand the
locality? A. The market stands about the cen-
tre of the town, a street running each way, Q.
There are four streets that terminate at the mar-
ket house? A. Four streets, North, South, East
and West, with an arch that passes right through
from one side to the other. Q. An arch opening
to each street ? A. Yes sir, to each street. Q. What
is the name of the street that runs West from the
market house ? A. Hay street. Q. What is the
street that runs East ? A. Person street. Q. What
is the street that runs South ? A. Gillespie streets
Q. And North? A. Green street. Q. Those
four streets terminate in the market house ? A.
Yes, sir. Q. And an arch opens upon each? A.
Yes, sir. Q. You say this man Avas killed at
what corner of the market house ? A. At or
near the South-east corner. Q. The South-east
corner. A. Yes, sir. Q. What was the; first time
that day that you saw Archy Beebee ? A. The
first time I saw him was-when the Sheriff and
perhaps the Deputy were bringing him out. Q.
Out of where ? A. Out of the arqh. Q. Which
arch ? A. The east arch. Q. How came you
there ? What did you come to the j market
house, for? A. I suppose curiosity took me
there? Q. What excited your curiosity? A.
■This boy had been charged with an attempt of
committing a rape, and notice was given that a
hearing or trial would come off that afternoon.
I suppose curiosity carried me to go and look at
it. Q. You went up to hear something of the
trial? A. Yes, sir. Q. The hoy, when you got
there, was coming out of the arch? A. No.sir. ■
When 1 first saw him I had been, there some
ten or twenty minutes before he cofne down
the arch. The notice was given, or I heard Some
one say he was coming, when I noticed him.
Q. You are certain ywu had been there ten or
twenty minutes before he came down the arch ?
A. Yes Sir, Q. How far were you standing (rem
the arch ? A. When he came. Q- Yes? A. I .
suppose about 10 or 12 feet. Q, Square in front
of it ? A. I was standing to one side, rather fac-
ing the arch, between the arch and tbe corner.
Q. Was the arch nearer touching you to the left
or right ? A. Tiie arch. -I was in the centre. Q.
Were you nearer to the left hand or right hana ?
A, Perhaps nearer the right hand side. Q. Ten
4
PROCEEDINGS OF A MILITARY COMMISSION,
or twelve feet in front, towards the right hand
side a little ? A. Yes Sir, Q This ten or twenty
minutas that you speak of, were you standing at
the same spot? A. About the same spot. Q
Did you see any of the prisoners at the bar ? A.
Yes Sir. Q. At the market house before Bebee
made his appearance? A. I saw one of them. Q.
Which one? A. Tolar. Q. I ou saw Mr. Tolar
there before you saw Beehee? A. Yes Sir, Q.
Did you see any of the others ? A. I don't recol
lect distinctly. Q. What was Mr. Tolar doing
when you saw him ? A. He was standing upon
the pavement neur the arch on the eaeteide of the
market house. Q. Was he saying or doing any-
thing ? A. Nothing at all that 1 could see sir. Q.
How many men were gathered at the market
bouse, during these ten or twenty minutes that
you were standing there, before Beebee made his
appearance? A. There was a good large crowd,
I suppose between one and two hundred. Q. Was
the crowd increasing or growing less wlule you
stayed there? A. Increasing Sir. Q. Was there
any disturbance, or niise or threats, or anything
of the sort? A. Nothing that I heard, Q. The
crowd was quiet was it ? A. Yes Sir. Q Was Mr,
Tolar standing alone, or was some one near him ?
A There were a good many standing around there,
I don't recollect who. "Q Do you recollect who
was standing nearest him ? A. No Sir. Q Did you
see any persons there with arms that day ? A. I
did Sir, Q. During the ten or twenty minutes
you were there betore you saw Bebee ? A. No
sir. I did not Q You saw none there with arms?
A. No Sir I did not, I saw no arms there. Q You
Bay there was a crowd of a hundred or more ? A-
Perhaps between one and two hundred persons.
It might have been more. Q, Did it vary at dif-
ferenfc times ; sometimes more and sometimes less?
A. They seemed to be gathering. Q Never
growing less? A. No Sir, I don't suppose it did
Q Finally you saw Beobee make bis appearance
at the east end of the market, house, in eh urge of
Mr. Wemyss and Mr. Hardie ? A. Yes Sir. Q.
What occurred then ? A. There was a rush made
at that time in the rear and at the left side. Q.
By whom? A. By the parties standing there, I
could not designate who they were, it seemed to
be the crowd that was gathered there. Q Was
there aDy cry ? A. There was a cry from the
Sheriff, saying-I don't recollect whether it was
*' quit" or "don't men," It was either "quit" or
don't men" Q, Did you hear any otherexclama-
tioi s ? A, None at all Sir, Q Did you see Mr.
Tolar in the crowd at that time? I did not Sir.
Q. Did you see aDy of these other prisoners ? A.
I don't recollect seeing them. Q. Do you know
these prisoners personally, all of them? A. Yes
Sir. Q. What happened then? A. They passed
on, to or near the south east corner of the market
house, aud when they made a rush this man Be
bee seemed to fall, or go down, and as he rose, or
in attempting to rise, a pistol was fired. Q. Did
you see the pistol fired ? A. I did Sir. Did
you see it distinctly ? A. I did Sir. Q. Did you
see who held it? A. I Did Sir Q. Who fired it ?
A. Mr. Ttcar. Q. Have you any doubt about it?
A. None in the least. Q Were you standing on
the pavement out side of the maiket house? A.
Yes Sir. Q You say he stumbled, and partly or
wholly the prisoner fell? A. He appeared to go
down Sir, Q And as he rose, you say, he was
fired upon? A. Yes Sir. Q You saw the pistol
in the hand of Mr. Tolar. A, Yes -Sir. Q. Did
you see the negro fall, Beebee ? Yes Sir. Q. And
when the shot was fired was the back of his head
or front of his face towards it ? A. Tolar was
standing rather behind in the rear, to the left. Q.
Did you see the man Beebee after he fell? A. No
Sir, I did'nt just then ; after that I went off, I
went out to my establishment, and afterwards I
came back and saw him. Q Did you see what
became of Mr. Tolar after he fired the pistol 1 A.
Mr Tolar went, as well as I can recollect m to-
wards the aroh on the east side of the market
house. C. Was that immediately after he fired?
A. Immediately afterwards. Q At that time di d
you see any of these other prisoners at the bar ?
A I don't recollect seeing them Sir. Q. Did yo u
hear any other exclamations or outcries, fro n any
portion of the crowd 1 A That evening? Q. Yes
Sir A. I did not Sir. Q From the position
which you occupied could you see the windows
of the Town Hall over the market house? A-1
cannot say, as to that Sir ; I might posBibly have
seen them. Q Is there any porch or balcony out-
side ? A. There is a balcony on the outside, per-
haps that might have cut off.the sight. Q There
is a balcony on the ou side ? A. Yes Sir. Q. On
which end of the market house ? A, On the east
and weKtend. Q. Did you look into that balcony
at all that day? A. No Sir. Q. Can you say
whether anyone was in or was not in it? A. I
cannot Sir, Q. How close were you to Mr Tolar
when he fired tii6 pistol ? A. I may perhaps have
been between three and five feet. Q. Nearer than
you are to me 1 A. Yes Sir Q. As near as you are
to the gentleman next to jtou ? A. No Sir, he was
perhaps fu~ther off than that, about as near as the
second gentlemen, (about foui feet.) Q. You were
that close to Mr. T lar when you saw the pistol
fired? A Yes Sir. Q. What did he do with the pis-
tol after it was fired ? A. I did'nt notice. Q.
Were you alarmed ? A I was somewhat alarmed
at it Sir, in fact I turned off immediately after-
wards and went down to my establishment, I
did'nt remain there in the crowd-
Cross examined by the Counsel for the accused.
Q Whatdid vou say your business was? A Sad-
die and Harness making is my trade, but in addi-
tion to that I have added a grocery: I carry on a
small grocery business in the same building. Q.How
faris j our establishment from the maiket house.
A. I suppose it may be perhaps about two bun-
dred yards, I wont say positive. Q Two hundred
yards from the Southeastern side ? A. From
East side, sir. On what street are you ? A. On
the South side of PersoD street. Q. Yon say as
soon as the affair took place you went down to
your establishment ? A. I went down to my es-
tablishment. Q. H<>w long was it after that be-
fore you saw Beebee ? A. Perhaps ,it may have
been half an hour, sir; I would not say positive,
between a quarter aud a half an hour. Q. Did I
understand you to say you don't know whether
you could or could not have seen the upper
windows of the market house from where you
were standing ? A. You did, sir. Q You did'nt
see anybody on the balcony ? A. I did not, sir.
Q. You heard no cry in the crowd at the time
Beebee was shot ? A. None but what was made
by the Sheriff, sir. Q. You heard nobody say
anything in the crowd but what was said by
Sheriff Hardie? A. That was all I hoard, sir, Q.
You say you did'nt see Mr Phillips there? A.I
don't recollect seeing him there. Q Or Monk?
A. I dan't recollect. Q. Or Tolar 1 A. I saw Mr.
Tolar. Q Mr. Powers ? A. I don't recollect see-
ing him. Mr. Tolar, you say, you were from three
to five feet from 1 A Between three and five feet,
I would not say positive what the distance was.
Q. How far was it from where you were standing
to where Beebee fell? A. It may have been, per-
haps ten or twelve feet, I could not say positive
how far. Q It could not have been as much as
twenty feet? A O. no! I don't know whether it
could have been ten. Q How near did you say
Tolar was to Beebee when he shot ? A. Well, I
CONVENED AT RALEIGH, NORTH CAROLINA.
5
suppose Tolar must have been the same distance
that he was from me, about. Q From three to
five feet? A. Yes. sir, three to six or somewhere
near that. Q. Were you standing on the side-
walk or on the street? A. On the street, sir. Q
Is the side walk raised? A. Yes, sir. Q. How
much? A. Well, I can't say how much, about
eight or ten inches, I suppose. Q. Were there any
persons between you and Beebee at the time he
was shot? A. There was Mr. Tolar a little to the
left, between me and Beebee. Q. Was there any
other person in the crowd between you and Beebee
at the time he was shot? A. There may possibly
have been. Q Did you have aclear view of Bebee ?
A. I could pee nothing when he raised up but his
head. Q. Could you see him when he fe 1 ? A.I
saw him go down, I could not see him after he
fell. Q. What prevented you from seeing him
after be went down ? A. There was, perhaps,
persons in front—the crowd moving. Q. Enoug ■
of persons to prevent you from seeing him ? A
I could see him when he was standing up. Q I
understand you to say that as he stood you saw
him distinctly? A. Yes, sir. that is. I could see
the upper portion of his body. Q- From the
shoulders up? A. Yes,-sir. Q. How tall a man
was Beebee ? A. Well, I can't say how tall he
was, perhaps he may have been a man of.niy
height. Q ' You were very well acquainted with
him, were you not? A I knew him by sight. Q
Was he a drayman in your town? A. I think he
waR said to have been, sir. Q You had seen him
on the stieet frequently? A. Yes. sir. Q Was
he particularly tall ? A. Well. I can't say that he
was. Q- A man of ordinary height t A. He may
have been a man six feet high, or five leet ten, or
five teet eight or ten. something like- that. Q-
Was he a taller man than the Sheriff? A. Well.
I can't say that he was. Q Did the Sheriff have
hold of him? A. I think he did. Q. Did you
observe how they appeared as they stood togeth-
er? A I think t e Sheriff was on the left hand
side of Beebee. Q On the left side? A, As well
as I can recollect, sir. Q You say that when the
deceased fell down lie fell tor some reason, you
don't know what? A. Yes, sir, he appeared to
fall. Q. As lie fell you did not see him ? A No.
sir. Q You saw him as he stood up—there were
quite a number of persons between you and him,
were there not? A. I don't know that there was,
there must hare been some persons. Q. Enough
to prevent you from seeing him ! A. Yes, sir,
whenhe wentidown., Q. There were a number of
persons between you, you could not see any part
excepting his head and shoulders when he stood
up? A. Wei1,1 could see his body down some
distance. Q How far d«wii did he go when be
fell? A. I don't know, I could not say how far
down he went, sir Q But whenhe went, down
you did'nt see him ? No. sir, I did'ntsee him. Q.
Don t your reccUectlon serve you now that there
was quite a number of persons be ween you and
him when he fell ? A- There were some persons
standing between us I don't know how many. Q.
And you think you were ten or twelve feet from
him ? A. Yes. sir, Q. You say there were one or
two hundred persons and the crowd w»s gather-
ing? A. Yes, sir. Q Were they all white per-
sons, or all colored, or mixed—dhe greater part of
the crowd consisted of what color? A. I can't
say as to that. Q A large crowd there of both
colors ? A. Yes, sir. Q, You went there out of
curiosity ? A. Yes. sir. Q. You heard that, they
had Beebee up, and I understood yon to say they
found him guilty? A, No. sir. Q You were
there ten or twenty minntes before he came out?
A. I suppose about that time. Q And during
that time this mixed crowd was gathering, you
say, and when Beebee come down stairs Captain
Tolar was standing by the arch ? A- No,-sir, I
did'nt ray about the time lie came down, I said
when I went there, not at the time he came down
—when I got there, or shortly after. I saw Captain
Tolar standing there. Q. And when Beebee came
down did you see him at ail? A. See Tolar? I
did'nt see him till I saw him with a pistol, sir. Q.
Did you see who they were in the crowd that
rushed at Bebee when he came down, when the
Sheriff said '"don't" or something of the kind?
A I did'nt see who they were, sir. Q. Were they
white men or colored men rushed at him? A- It
was white men. Q. You saw them ? A. Yes, sir.
Q You did'nt see any colored men? A. I saw no
colored.men, Q. What white men ? A. I could
not say who the men was. Q. Did nt you know
the crowd ? A. I did nt, sir; that is I might have
known them if it had been on any other occasion
Q. Were they citizens of Fayetteville? A. I
guess they generally were, sir. Q. You keep a
grocery there; you are also a saddier; pretty well
acquainted with them in the town ? A, Yes, sir .very
well. Q. Raised there? A. Yes,'sir. Q. Yousayyou
don't recall any mans face that was there, except
Mr. Tolar's? A. I don't recall any sir. Q. How
long after this affair were you examined about it-
first ? A. Soon after which affair. Q. How soon
after Bebee was killed were yon first examined
about it? A. This is.the first examination. Q.
You have never been before the Government ? A.
No sir. Q. You have never been sworn before?"
A. No sir. Q. Did you ever talk about it to any
officers before this ? A I don't recollect speaking
to any of the officers sir, I spoke to my father about
it, that evening perhaps, and to my brother, and
some others in the shop. Q The reason why I
asked you was to see why it is that you didn't re-
collect any other face that was there. If your at-
tention was called to the transaction shortly after.
Isupposeyou might have recollected some faces be-
sides that of Captain Tolar. I asxed you whether
you were examined before any official authority of
State or Government, shortly after that, you were
not, you say? A. Not at all. Q. And > ou say you
have no means of recalling any other face that was
there ? A. I can't recall any face that was there
except Captain Tolar's. Q. Do vourecollect any
colored persons that were there? A. Well I re-
collect one, by the name of Simmons, Robert Sim-
mons. Q. Any body else? A Well, I can't say
that I do. Q. Were you not considerably fright-
etaed? A. Well, 1 wa.% rigbt smart excited. Q.
Were you not excifed when the crowd made the
rush? A. That was the time. Q. You became
very much excited when the crowd made the lush?
A. Well I became flushed over it a little, because
I hadn't expected anything of the kind to occur.
Q. Did the crowd rush at him angrily? A. Yea
sir. Q. White men did ? A. The}' were white
sir. Q. He said nothing? A. I didn't hear any-
thing sir. Q. You saw but one pistol ? A. That
was all sir. Q. That was in Captain Tolar's hand?
A. Yes, sir Q. Was Captain Tolar standing on
the side walk? A. No fir, he was in the street,
standing outside of the side walk. Q. And the
Sheriff was between him and the prisoner, that is
between him and Beebee—Sheriff Hardie ? A. The
Sheriff was on the left of Beebee. Q. And Tolar
vi as in tbe street ? A. Tolar was in the rear
rather to the left. Q. Tolar was in the rear, and
rather to theleft? A. Yes, sir. Q. Andyousaw
biinfire? A. Yes, sir. Q Did you see bim draw
the pistol? A. I did. sir. Q. What kind of a
pistol? A. It looked to me, like what they call
one of these repeaters. Q. What kind of a re-
peater ? A. Well I can't say: it was a pistol
about a foot long, I suppose it was sir, it mighj;
have been a little longer. Q. What they call a
6
PROCEEDINGS OF A MILITARY COMMISSION,
Navy revolver. A. Something of that kind. Q.
You think it was a Navy revolver. A. I can't
say for certain. Q. You are not sufficiently fa-
miliar with these weapons to say whether it was
a Navy revolver or not? A. No, sir. Q. But it
was a weapon about a foot long? A. Yes, sir.
Q. Did any body take hold of Beebee that you saw,
except the Sheriff? A. Well, I can't say. Q.
Was there any guard there except the Sheriff ?
any body in whose charge Beebee was except the
Sheriff'? A. He came out between the Sherriff
and Mr. Wernvss. Q You don't know anything
nao'e about it than that? A. No, sir. Q. Did I
understand y.;U to say that Tolar was rather to
your left, between you and the prisoner, was he
exactly oetween you and the prisoner? A. He
was rather to my left, at the time the pistol fired
he was, sir. Q Tolar was in the street ? A. Yes,
sir. Q. This man Beebee was on the side walk?
A. Yes, sir. Q. And it was;just as the man rose
Tolar shot him? A. Yes, sir, just as his head
came up in the attempt to rise, a pistol fired. Q.
And thereupon Tolar went in uader the arch ? A.
He went either in or towards the arch, sir. Q.
That is. he went a little back? A. Yes sir, he
turned back. Q. What time did you leave? A.
I left directly after that- Q. Just then? A.
Yes, sir. Q. Did you walk? A. Yes, sir. Q.
You didn't run? A. No, sir. Q. You walked
away? A. Yes, sir. Q. I understand you
.to say, that during the ten or twenty min-
utes you were there, before B.ebee appeared,
•there was no talking? A. No, sir. Q. Nothing
said by anybody ? A. No, sir. Q. You said noth-
ing yourself? A. No, sir. Q. Just stood there
watching, out of curiosity to see what would be
done ? A. Y es, sir- Q. How long did they have
Beebee up there before they brought Mm down ?
A. I don't recollect, sir. Q. You had'nt seen him
before that day? A. No. sir. Q. Was there any
outcry made there to rescue Beebee from the.Sheriff,
by anybody, to take him away out of the custody
of the Sheriff? A, Nothing more thaD I might
judge from that rush, sir. Q. Any attempt on the
part of colored persons there? A. None at all,
sir. Q. No attempt at all? A. Nothing of the
^ kind that I saw.
Examination resumed by the Counsel for the
prosecution.
Q. Mr. Leary, when Mr. Tolar fired the pistol,
did he say anything? A. I did'nt hear him say
anything. I don't recollect anything being
said. Q. Did he make any movement ? Did you
see him move at the time? A.'He turned back
from where he was standing. Q. The Counsel for
the prisoners has asked you whether you heard
anything said, while you were there the ten or
twenty minutes which you mentioned ? A. No-
body said a word. Q. Do you mean there was no
talking? A. There may have been some talking,
Q. No talking connected with this affair ? A.
That is what I supposed he meant.
The Counsel for the accused—That is what I
meant.
Q. This crowd you speak of—were they inside
of the market house ? A. I can't say as to that
sir. Q. Did you see whether there was any ins.de
of the Market house. A- I don't recollect seeing
them* Q. Was there any crowd at the west end
of the market nouse ? A. I can't say sir ; I did'nt
notice sir; I was not around there.
John Armstrong, a witness for the prosecution
having been first duly sworn, testified as follows:
Questioned by the Counsel for the prosecution.
Q. What is your name witness? A. John Arm-
strong is my name sir, Q. Where do you live?
A. In Fayetteville. Q How long have you lived
there sir ? A. I haTe been living there sometime.
I was raised within ten miles of Fayetteville. At
one time I was in Alabama a while. Q. Have you
been living in Fayetteville for several years ? A.
Yes, sir. Q. Were you there at the commence-
ment of this year ? A. Yes, sir. Q. Were you a
free man before the war? A. No sir. Q. What
was your occupation at the beginning of this year ?
A. I was was running on the railroad. Q. What
railroad? A. Western. Q Did you knowArchy
Bebee? A. Yes, sir. Q. When did you see him
last? A. I.saw him the evening before they took
him from the market house, after be was killed; I
never went to his burying. Q, When did you last
see him alive? A. On the 11th of Febuarv, I
think it was; in the afternoon. Q. The 11th of
February this year ? A. Yes, sir. Q. What time
in the afternoon was it? A. i could aot say—it
was somewhere about three o'clock, sir; after
three o'clock. Q. Do you remember what day of
the week it was? A- It was on Monday even ng.
Q. On Monday evening, the 11th of Fe'bruary, af-
ter three o'clock you saw him alive? A- Yes, sir.
Q. Where was it you saw him? A. When they
carried him up stairs in the market, and I saw him
when they fetched him down. Q. Where is the
guard house; what street is it on ? A. I ain not
able to tell you sir. Q- What direction does it
run from the market house? A. Coming from
Campbellton hridge, it is on the left. Q. Does the
street run north or south? A. It runs south. Q.
This guard bouse is on a street that runs south
from the market house? A. Yes, sir. Q. On
which side of the street is it, as you go from the
market house? A. On the left hand side as yeu
come down sir. Q. How many doors is it along
that street fi om the market house ? A. I am not
able to say. Q. Did'nt you say it was on the
street that runs south from the market house ?
A. Yes, sir. Q. Which end of the block is it
nearest-to, the market end or the other end? A.
The other end. Q. Nearest the southern end of
the block, on the left hand side of the way? A.
Yes, sir. Q. Did you see Beebee when Ihe was
brought out of the Guard House ? A. Yes, sir,
Q. How catne you there that day? A. On my'
way from dinner, Ned Beebee— Q. You must not
tell what he said ; you were at dinner, and in con-
sequence of something you heard, some conversa-
tion that occurred there, you w nt to the market
house? A. Yes. sir. Q. D-d you notice any ex-
citementornot? A. Yes, sir. Q. Ybu had 'ome
down wh it street to go to the market house? A.
Hay street. Q. Hiy street, is that the street
that runs west from the market house? A. Yes,
sir. Q. You were coming down that street that
runs west from the market house, after 3 o'clock in
the afternoon ; did you hear or notice anything un-
usual? A. I saw a good maay passing, and 1 saw
some youDg boys had pistols. I was coming down
the street, paying very little attention to them, but
I saw there was a great excitement on the street.
Q. You saw several young boys with pistols on
Hay street? A. Yes, sir. Q. And you noticed
an excitement among the gentlemen, what sort
of an excitement? A. There was a sort of a
crowd, more than I generally saw. Q. What did
you see, anything except the crowd ? A. No, sir.
Q. Any greater crowd in the street than usual ?
A. Yes, sir, a great deal more than I had been
given to see. Q. You say you noticed more per-
sons than usual, and several boys with pistols ?
A. Yes. sir. Q. Did you see any men with pis-
tols ? A. Yes, sir. Q. Who did you see ? A. I
saw uone until I got to the market house, I saw
two boys have a pistol in the street. Q. You saw
no pistols till you got to the market house, except
these two boys? Aj No, sir, one was Mr. Lind-
ley's son, and one Mr. Blake's. A. Do you know
CONTESTED AT RALEIGH, NORTH CAROLINA.
7
what the boys names are? A. No, sir, I am not
able to call their names; I know the boys very
well. Q. How old are they ? A. I don't suppose
they are more than ten or twelve, or fifteen ; they
may be older. Q. Was the crowd making its
way from the market house or towards the market
house? A. They were making towards the
market house, when I got on Hay street. Q. Who
was with you ? A. Ned Beebee was with me, sir.
Is he any relation to the deceased man ? A. I
am not able to say whether he is any relative or
not. I have never inquired into the matter
enough to know. Q. You and Ned Beebee went
down Hay street to the market house ? A. Yes,
sir, and just before we got to the market house,
Ned Beebee stopped, near Mr. Glover's silver-
smith shop, and I went on to the market house
myself. Q. When you got there what occurred ?
A. I walked under the market house. Q. Stay
one moment—you saw this prisoner Beebee when
he was taken out of the guard house ? A. I saw
him as soon as he got into the street. Q. As soon
«ag you got there, when he come out of the guard
house, before he was taken up stairs you saw
Beebee? A. Yes, sir. Q. Who was with him
then ? A. Mr. Wemyss had him tied by his
finger, walking with him, and Sheriff Hardie was
right in front. Q. Was any body else with them ?
A. Yes, sir, a good many police. Q. Do you re-
member any body else who was in that police ?
A. Yes, sir, a Mr. Faircloth, Mr. George Hornrine
and a man by the name of Strickland was along.
Q. What became of him, the prisoner, then? A.
They went up stairs with him then, sir. Q. Did
you see anything of this young lady Miss Masse}'',
that day, that he was accused of committing a
rape upon? A. Yes, sir. Q. You saw her that
day? A. Yes, sir. Q. Where did you see her?
A. I saw her at the market house. Q. Was it be-
fore Beebee went up or after he went up ? A.
After he went up, sir. Q. She come to the market
house after he went up or before ? A. After he
went up. Q. You say the carriage came after he
went up stairs? A. Yes, sir. Q. Are you confi-
dent of that? A. Yes, sir, I am. Q. Beebee came
in charge ot the Sheriff and his officers; well tell
what occurred then ? A. He was carried up stairs
where they generally have the trials. Q. Where
were you standing then? A. I was at the east
'end of the market house. Q Did you pass
through the market house, or around it?
A. I started through, but did'nt come through.
Q. Were you stopped? A. Yes sir. Q. Then
you passed around the market house? A. Yes
sir, Q. And you came up to which end, the east
end? A. Yns sir. Q. Did you say you saw
Beebee come from the guard house ? A. Yes sir.
Q. He was not there when you got there? A.
No, sir, he came af;er I got there. Q What be-
came of him ? A. They carried him up stairs to
the trial. Q. Who went up with him ? A. The
policemen went up with him, and one colored man
went up, immediately after he went up, by the
name of Duncan McKeever. «Q He was carried
up-stairs you say, and after he went up this young
lady came? A. Yes, sir. Q, Was any one with
her ? A. Yes, sir, there was a middling aged lady
in the carriage with her. Q Did they go up-
stairs, too ? A. Yes, sir. Q. Did you notice who
helped them out of the carriage? Did anv one?
A. Mr. DeVann helped them out. Q Do you
know what his business is? A. He is a town con-
stable, sir. Q. Is he town constable in Fayette-
v.lle now ?. A. That is more than I am able to
say. Q Was he at that time? A. Yes, fir.
Q. Mr. DeVaun helped these ladies ontof the car-
riage, and they went up stairs? A. Fes, sir.
Q« Now, how long was it before Beebeo came down
'stairs again ? A. Well, sir, I am not able to say,
but it was a short time. Q. How long do .you
suppose ? Was it an honr ? A. I don't think it
was an hour. Q. Was it a half an honr ? A. I
am not. able to say, but I don't think it was an
hour. Q. Between half an hour and an hour
then? A. Yes, sir, somewhere .along there. Q.
While he w°s up stairs, were you under the mar-
ket? 'A. I was standing out from the market
house, off on the pavement. Q- On the pavement
or off? A. Off the pavement. Q. In the street?
A. 1 es, sir, what might be called the street, right
facing the market. Q. You were standing off the
sidewalk ? A. Yes, sir. Q. Were you in front
of the arch ? A. Yes, sir. Q. Right square in
front of it? A. Yes, sir. Q How far were you
from the arch ? &. I don't suppose I was more
than ten feet. Q Did y u see aDy crowd around
the market house during that day? A. Yes, sir.
Q. How many men do you suppose you saw there ?
A. I am not" able to say, but 1 suppose I would
not be wrong in saying there were one hundred,
more or less, and a good deal passing. Q. Did
the crowd increase or grow less while you stood
there? A. The crowd increased. Q. Did you
hear or see—f mean now while Beebee was up
stairs—did you hear or see any noise or disturb-
ance, or talking, or threats, or excitement of any
sort ? A. I saw a good deal of whispering, sir.
Q. Between who? A. Between the white men,
from one to another. Q Did you see any whis-
pering between any of these prisoners at the bar ?
A. Yes, sir. Q. Who did you see whispering ?
A. I saw Eddie Powers whispering to Captain
Tolar. Q. l)id you hear what he said ? A, No,
sir. Q Where were they standing? A. Under
the market house. Q. You saw Mr Ed. Powers
—is he here? A. No, sir. Q. You saw a man
that is not here whispering- to Captain Tolar?
A. Yes, sir. Q. Did you see any one else whis-
pering? A. I saw Mr. Sam Hall. Q. Is he here?
A. No, sir. Q. I am talking about whether yon
saw any body having any conversation with any of
these prisoners ? A. No, sir, I don't know that I
did. Q. Did you see any body have any conver-
sation with any of them at all? A. Yes, I saw
the ones 1 told "you of just now. Q. I understand
yon to say Ed. Powers whispered to Captain Tolar?
A. Yes, sir. Q. Where were they standing then?
A. Standing under the a'rch where a lady sells
provisions, Becky Jenkins; and Captain To'ar
was leaning on a place where they hang up meat.
He was leaning there and Mr. Eddie Powers-
come from the crowd and whispered to him.
Q. Was that crowd inside of the market
house, or outside, or both ? A. It was mostly
inside of the market house. Q. Did he
co ne through the crowd that was inside of
the market house ? A. Yes, .sir. Q Captain
Tolar was leaning against a meat block ? A. He
was not leaning against a meat block, a rod was
put up to hang meat upon, and Captain Tolar was
leaning against thst. Q Did you see Captain
Tolar reply to bim ? A- I did'nt pay any atten-
tion. I saw another gentleman come up ? Q. Did
' you see who tnat person was ? A. No, sir. Q,
Did he whisper to Ed. Powers? A. No, sir, he
whispered t" Captain Tolar. Q You did'nt hear
what he said? A. No, sir. Q Did you see any
body else whisper? A. I saw Mr. John Maultsby
whisper to Mr. De Vaun. Q. Was that while the
ne^ro man Beebee was u -stairs? A. Yes.sir. Q.
Was it in the market house? A. No, sir, they
were out from under the market house, standing
at the carriage Q You say while Tom Powers
whi-pered to Tolar he was undei the market
house ? A Yes sir, Ed. Powers not Tom. Q
While the negro was up stairs ? A Yes sir. Q
8
PROCEDEINGS OP A MILITARY COMMISSION',
Did you see any of these persons in that crowd ?
A Yes sir. Q At that time? A Yes, sir. Q Who
did you see there ? A I saw Mr. M-uik Julia
there, and Mr. Powe-s, that is sitting there Q
You saw Thomas Powers ? Yes sir. What is
Monk Julia's real name ? I neve' heard him call-
ed anything else befo e this affair< took place
Is that the man? Yes sir. You saw that man,
going by the name of Monk Julia, and Tom Pow-
ers in that crowd? Yes, sir. Anybody else
who is here ? No, sir,I don't know that I saw
any other one in that crowd of men. When
Ed. Powers whispered to Captain Tolar were
ttiey standing inside or outside of the market
house? They were all standing under the mar-
ket house. All under the market house ? Yes,
sir. Could you see what they were doing or sa: -
ing ? No, sir, I could not see what they were say-
ing. I saw them whispering to each other. Did
you see any of these others besides those you men
tioned whispering ? No. sir. AH were whis-
pering, you say, to Tolar?'' Yes, sir. Audit
was on the part of S«m. Hall and Ed. Powers.
Yes, sir, and then Mr. Sam. Hall went back and
whispered to Mr. Lutterloh's sod, Ralph. Was
that under the market house too? Yes, sir.
After he had whispered to Captain Tolar lie moved
back and whispered to Lutterloh ?" Yes, sir.
How far was Ralph Lutterloh from Tolar. I
don't suppose it was more lhan eight or ten feet
Was this whispering while Beebee was up stairs
being examined ? Yes, sir. Did anything
further occur? Did you hear any expres-ion in
.the talking that the crowd heard? No, sir, I
did'nt understand any words only I saw there was
bd excitement. I saw Mr. Maultsby, he whisper-
ed to Mr. De Yaun and then went and jumped up
on a bench. I want to know whether you
heard any conversation in a loud enough t«ne
for the crowd to hear it? • No, sir. Not
before the prisoner come down. None at all, sir.
t)id any one else come down the stairs before
the prisoner? Yes. sir Sheriff Hardie came
down first. Who was with him? Mr. Faiv-
cloth came out of the door after he came and the
Sheriff went back and left Mr Faiteloth standing
on the steps. Sheriff Hardie came out first and
Mr. Faircloth came after linn? Yes, sir.
What happened then ? Next I saw Mr, We-
inyss come down, he was ou Archie's right.
Did any one come through that door beloreAr-
chy ? -I am not able to say whether any one
came down before he did. I did'nt mean in the
same group but before he came down stairs
Yes, Sheriff Hardie came down in front. I mean
before Sheriff Hardie. a Yes, Mr De Yaun come
down. Before either the Sheriff or the prisoner
came down Mr. De Yaun came down stairs ?
Yes, sir. Did any on* come with him? No.
sir. What become of this lady and her moth
er? Mr. De Vaun helped them in the carriage.
Did they come down .before or after the prison-
er was brought down ? A. Before. Q Did de Vaun
come down with them ? A. Justin front of them.
Q. And then this lady and her mother—Miss Mas-
sey is her name! A. I am not able to say what
her name is. Q. What became of that lady and
her mother ? A Mr De Vaun helped them in the
carriage. Q Was a carriage waiting for her?
A Yes sir. Q Who was driving it? A colored
man, that belonged formerly to lawyer Wright.
I am not able to say his name. Q I want to di-
rect your attention especially to this. I want
you to think carefully whether that lady and her
mother came down* stairs before or after the
prisoner ? A They come down before the pris-
oner. Q Before the prisoner came through that
door the young lady and her mother were in the
carriage?. A Yes sir. Q And De Vaun helped
them in ? A Yes sir. Q Now you say there was
some whispering that happened, between De
Vaun and who? A Mr. John Maultsby sir. Q
Mr. John Maultsby? A Yes sir. Q Just de-
scribe to the Court what that conversation was.
Mr. De Vaun helped the ladies in the carriage,
and touched Mr. Maultsby on the shoulder, and
they walked around on the other side of the car-
riage. You say they had a whispered conver-
sation? Yes 6ir. They changed their'posi-
tions to the other side ol the carriage ? Yes
sir; they went around the carriage. So that
the carriage was between you and them ? Yes
sir. Were they still together when the carriage
drove off? Yes sir. What happened ihen?
They parted and Mr. De Vaun went np stairs,
and Mr. Maultsby went and jumped up on a
bench. YVhat bench? On a bench, leading
from the steps of the market house, as you go
down from the trial room. On the side walk?
No sir, under the arch. Near the foot of
the steps?' Yes sir. It is very near the steps.
You say this man Maultsby jumoedupontbat?
Yes sir. What happened then? He waved
his hand and said, look out hoys ! Maultsby
jumped on a bench and said, " look out boys?"
Yes sir. Who did he wave his hand to? a
A crowd of gentlemen that was under the Mar-
ket. Was it the same crowd in which you had
seen any of these men? Yes sir. What hap-
pened then ? They started toward the foot of
the stairs, and I heard that gentleman say
"charge boys!" What gentleman? Mr.
Monk Kelter, or Monk Julia. What did he
say? "Charge hoys; follow me whenever I
give the word "! Was that before the negro
had got on the steps? Yes sir. Yon heard
Monk Julia say boys follow me, loud enough for
the others to hear ? Yes sir. What else did
he say? Not another word- that I heard.
What was it he said? "Boys follow me when-
ever I give the word "! That was all ? That
was all I heard him say then. Do you reeol-
lect him saying anything further? Not until
after the prisoner come down. Did these
things follow in quick succession? Maultsby wa-
viug his hand and Monk Julia making that re-
ply? It was very quick afterwards. You
could see Maultsby distinctly? Yes sir. He
waved his hand and said "look out hoys"?
Yes sir. And immediately as I understand
you—was it immediately or not that Monk Julia
said "hoys follow me" ! It was immediately.
Was that all he said? Yes sir it was all I
heard him say. Did you see Thomas Powers at
that time? Yes sir. Was he in the crowd?
He stepped out of the crowd and got a little un-
der the arch, near the steps. He had moved
then from the place where you first saw him?
Yes sir. Did you see Capt. Tolar about that time?
A. Yes Sir. Q Where was he? A. He was staid-
ing'underEeath the market House. Q Was-he in
sight of Maultsby when he waved his hand ? Could
he hava seen him ? A Yes Sir. Q Did you see any
of these other prison ers there, at rhattime, besides
C tptain Tolar. Monk Julia and Tom Powers? A
No Sir, I did not see any of the rest of them then,
Q After this waving of the hand and Monk said
follow him, what occurred ? A Mr Powers step-
ped upon a bench under the little aTch where these
women always sell cakes, near the foot of the steps
and then he got off of the bench and went near
the foot of the steps Q Who was it got 011 the
bench? A Mr Thomas Powerp. Q He went near
the foot of the steps? A Yes Sir, as they came
on down w5th the prisoner, Q Who came down
with the prisoner? A Mr Wemyss. Q Did Mr
Powers stand at the foot of the steps btfore he
CONVENED AT RALEIGH, NORTH CAROLINA.
9
came out of the door or afterwards? Before
Q How was he brought down ? A Sheriff Hardie.
after the ladies passed down was the first person
that came through the door? Q Wait a moment
During the time that you were standing about the
market house, when this crowd was underneath
there, did you see any body with weaporis ? A
Yes Si-. Q Who? A I saw Mr Ed Powers have a
pistil- Q Was lie in the crowd ? A He was under
the market house, Q He was one of the men who
whispered to Captain Tolar? A Yes Sir. he whis
pered to Captain Lolar ? Q Where did he have
that pistol? A He had it 111 his belt Sir, Q What
sort of a pistol was it ? I cannot tell Did you
see any one els- with a pistol ? I saw Mr Sam
Phillips, became down from towards his store and
had a small pistol in his hand, When was that
before Beebee came down stairs? Yea Sir, Be-
foie he came down stairs you saw Mr Sam Phillips
have a pistol in his hand ? Yes Sir, a small pistol,
Where was he? He was standing in the street,
Was lie talking to anyonr? He was not say-
ing nothing to no one at all, You saw Hall and
Ed Powers and Sam Phillips with pistols ? Yes
Sir, Was Sam Phillips with these others ? No
Sir, not at all, He was outside of the market
house? Yes Sir, Did you see any one else
with pistols or weapons of any sort? Yes sir, I
saw Tom Powers with a knife. What sort ot a
knife? About as long as my hand. The knife
was about ten inches long, was it? I suppose it
was. Did you see any ODe else with weapons?
I saw Mr Monk Julia have a knife. Monk had
a knife ? Y s Sir, When vou saw Powers with
a knife, was it open or shut? It was open.
Was it in his hand ? Yes Sir, Was that during
the time when you were standing near the arch ot
the market house, and Bebee was up stairs ? Yes
Sir, Was it during the time that this whispering
was going on? Yes Sir, At the same time, did
Monk have his knife, at the same time, a Yes Sir,
You say Sheriff Hardie was the fi-stone that an-
peared in front of the prisoner? Yes Sir, Who
came next ? Sheriff Havdie came and stood on
the step?, and then went back, and then Mr Fair-
cloth came out ar.d stood onthesteps; and the
next thing I saw was Mr Wemyss and Archy, and
I am not able to say which side MrHornrine came
down, but he 'was in company with them. You
say first Sheriff Hardie came out, and then Hardie
went back, then the prisoner appeared ? Sheriff
Hardie appeared right before the prisoner, and
Mr Wemyss. he bad him faster ed by thethumb,
On the right hand of Beebee, or the left? On
his right, Who else was there? Hornrine,
Did you see whether he had the prisoner? I
dont know that he had hold of him at all, I think
Mr Faircloth reached back and got him by one
arm, Whicli arm was it? His left arm.
Q What occurred then? A As they got down
the steps . Q. How many steps is it from
the door down to the floor? A I am not able to
say how many steps it is, I never counted them.
Q Can't you come somewhere near it ? A I would
not wish to tell anything I don't know. Q Was
it a hundred? A No, sir. Q It was not a hun-
dred ? A No, sir. Q Was it fifty? A lam not
able to say sir. Q Can't you say whether it was
fP'ty or not? No, sir. Q Don't you know there
were not fifty steps ? A There might be, I never
counted them; I like to tell that I know. Q Don't
you know there was not fitty? A No, Sir. Q
The witness seems to think that it is improper for
him to testify about the number of steps unless he
has counted them. That is not so at all; it makes
no difference whether there are ten or five or a
dozen ; so that we can get some sort of an opin-
ion. You don't pretend to say how many steps
there were then? A. No, sir. Q Down the steps
they cam^; what happened then? did anything
happen before they got to the bottom of the steps?
A No. sir, about the time they got off the steps
Mr. MoDk Julia ran up with his knife. Q Did
he say anything? A Yes, he said, " Give me up
that negro, I intend to have him." Q Monk Jnlia
said that, " give me up that Degro, I intend to
have him?" A Yt-s sir, and he struck at the
prisoner; and then Mr. Tom Powers come up and
as they neared the arch he rushed up, and grabbed
the prisoner with bis left hand, in the collar, aDd
cut at him with his knife. Q Did he say any-
thing? A He said "1 remand the prisoner." Q
Do you know whether he said, "demand," or
"remand?" A He said "I remand this pris-
oner." Q He grabbed at him with one hand and
cut at him with the other? Yes, sir. That
was Thomas Powers? Yes, sir. Did he and
Monk Julia rush up almost at the same time, or
at the same time? I didn't see Monk Julia at
that time; they shoved him off. He was the
first man that struck? Yes, sir. What did
he sav ? He said, "I intends to have the pris-
oner." Did he have his knife ? Yes sir, and
some one pulled hiin off. WTho was it ? I
am not able to say. In the meantime in the
arch stood Tom Powers ? Yes, sir. And
came back to the steps, and stood at the foot of the
stairs, and he demanded the prisoner, or remanded
the prisoner? Yes sir. And struck at him
with his knife? Yes, sir. And the Sheriff
did what ? Shoved him off and said " it is my
prisoner," and Mr. Powers said, " it is my pris-
oner, and I be damned if I don't intend to have
him, give him up." Mr. Powers said, " he is
my prisoner, and I be damned if I don't intend to
have Hm?" Yes, sir; He wanted the Sheriff
to give him up and the Sheriff told him he would
not. and he shoved him back again? Yes, sir.
Well, what happened then? Captain Tolar
come shoving in, this way (with his hands before
him as if parting the crowd.) What become of
the prisoner at this time ? When Mr. Powers
cut at him the second time he fell, Mr. Powers
cut at him the second time ? was that inside of the
market house? Outside, in the street. It
was outside of the market? Yes, sir. Pow-
ers was just ou side of the arch? Yes sir, right
at the edge of the arch. How many steps did
Beebee go from the arch before he fell ? I don't
suppose he got more than one or two steps before
be fell. Then Powers was standing right at the
arch, was Beebee moving along all the while,
towards the guard house? Yes, sir. Q And
Mr. Powers, made a second move to cut
him again, after he got out of the arch? A
Yes, sir. Q He made the first move just as lie
turned the arch? A Yes, sir. Q And he made'
the second attempt after he got out ? A. Yes,
sir. Q Did you see Monk Julia at that time?
A No sir, I didn't see him at that time. Q What
happened then ? did you hear any outcry in the?
crowd at all? A Yes, I heard some man say
j "shoot, shoot, shoot the damned son of a bitch,
! or he will get clear!" Q How many voices did
you hear say that ? A I heard one. Q. Did
you hear more than one ? A There might have
been different voices. Q How many times was
it repeated ? A I beard the word once or twice
"shoot! shoot!" Q Was there any other out-
cry in the crowd that you heard? A No sir. I
don't know that there was. Q Was the crowd
pressing Beebee all the while? A Yes, sir. Q
How far were you from the point where the
prisoner was first assaulted with a knife? A I
suppose I was not more than ten feet, sir. Q In
front of the East end of the market house ? A
Yes sir. After Powers made this second at-
10
PROCEEDINGS OF A MILITARY COMMISSION,
V ■ ■ —
tempt with lhs knife, what occurred ? Cap-
tain Tolar, he came up, ancl shoved the crowd
back, or aside, and he sort of stepped back, right
opposite me, and he had on a large shawl".
Did he say anything as.he came forward ? No
sir; he only waved his hands back. You are
certain he didn't say anything? If he did I
didn't hear him. He come forward, pressing
his way through the crowd, did he ? Yes sir.
Did he use his hands before him? Yes sir.
He shoved the gentleman aside by both hands ?
Yes sir, and as they got up right opposite me,
he drawed a pistol. Did he have to take his'
hands back and draw the pistol? Yes sir.
You say he had a shawl on; was it thrown
over both shoulders? Yes sir. Did he
draw his pistol from under his shawl? Yes
sir, from under his shawl, and then he throwed
his left hand on some one's shoulder. Who
did he place his hands upon ? I am not able
to say. Was he a gentleman in front of him ?
Yes, sir. He just throwed his left hand that
way (representing) and drawed his pistol from
under his shawl, and held it up, I reckon, near
a minute, till he got it right, and shot him.
Did you see Captain Tolar shoot Beebee ? I
did, sir. Have you any doubt about it?
No sir, I have no doubt about it; I saw him with
all my eyes. You saw him ? Yes sir.
That day? Yes sir. Was there any other
pistol tired there that day ? No sir, I never
heard nary other. And you say Captain To-
lar made his way through the crowd, and drew
this pistol from under his shawl? Yes sir.
Put his left hand upon a man's shoulder, who
was in front of him, and extending the pistol,
fired ? Yes sir. Did Be.bee fall ? Yes
sir. Was his face towards Captain Tolar?
■ His back was turned toward him. What did
Captain Tolar do. then ? I said to him "There,
Captain, you have killed that poor man."
You said "There Captain, you have killed that
poor man?" Yes sir. You spoke to him?
Yes sir. Is that the man? Yes sir. You
spoke to him and told him he had killed
that man? Yes sir, and he aimed to conceal
the pistol under his arm, where he had taken it
from; he made a flirt, and he throwd his shawl in
my face, and when I got the shawl out of my face
I saw the pistol pass out of the crowd. Who
did you see it in the hards of? I saw Ed Powers
and Sam Hall have it. The shawl was flirted in
your face and as soon as you could see, you
noticed what? I saw the pistol was not in
Tolar's hands, and Ed Powers had one. Was
it the same one ? I am not able to say it was
the same pistol. Did it look like the same
pistol? Yes, sir. Who did Ed Powers pass
it to ? Sam Hall. Did you see who he passed
it to? Mr. Lutterloh's son, Ralph. "Was it
going further from the prisoner Tolar, all the
time? Yes, sir, it was going from Mr. Tolarall
the time. Did you see who Ralph Lutterloh
passed it to ? No, sir, I did'nt pay any atten-
lion; the crowd was verjr thick. Did you see
any of these other prisoners about that time? a
After the firing of the pistol? Yes. I saw
Mr. Sam Phillips. Well what was he doing?
He had a pistol in his hand. The one you first
saw him with ? Yes, sir. How close was he
standing to Tolar? When he fired he was on
my left, and Mr. Tolar was on my right. You
were between them? Yes, sir. Sam Phillips
had a pistol, on' your left? Yes, sir. How
close was he to the deceased man Beebee? He
was some distance from him, sir. How lar?
a I reckon about ten or twelve feet. Was he
further from him than Tolar was? Yes, sir.
Tolar was nearer to the deceased man than Phil-
lips ? I dont suppose Tolar was more than two
steps from the deceased. What was Phillips
doing with this pistol; did you see him'before or
after Tolar fired/ Both , before and after.
Immediately after, and immediately betore?
Yes, sir. What was he doing with the pistol?
He was not doing anything with it; he had it
laying in his hand, and held his hand shut up on
it. Did he have it in both hands? In one
hand, laying in the other, and his hand was shut
up on it. Did he say anything? No, sir, I
never heard him speak to no one. Phillips you
say said nothing? No, sir, I never heard him
say a word. Do you mean jje did'nt say any-
thing to any one ? He may, sir, but I did'nt
hear him. He said nothing that you heard?
No, sir. After this what became of Tolar?
Captain Tolar walked back, stood a little while,
and then went off. In what direction ?
Under the arch. Under the arch at the East
end of the market house? Yes, sir. /Did he
disappear in that arch then? Yes, sir, he went
through, the arch, and went and stood up at Mr.
Hinsdale's shop. Where is Mr. Hinsdale's
shop? It is West from the market house.
You go out of the West end of the market house
to go to it ? • Yes, sir. Is it on the left or right
as you go out ? @n the left. Is it the first
house on the corner ? Yes, sir. It is the fi rst
house on the corner, on your left as j;ougo out at
the Western arch? Yes, sir. Did you see
him go any further? I saw him start with one
of the Boons; I dont know which one it was; I
know it was one of the Boons. Did you see
what became of Tom Powers ? No, sir, I did'nt
see him after Sheriff Hardie thrust him back.
Did you see anything of what became of Monk
Julia? Yes, sir. Did you see him after the priso-
ner fell at all? Yes, sir. What'happened
then? He made an attempt to get at him. He
said he wanted to cutoff his head to carry it down
to Cambpelton with him. JHe [said he wanted to
cut off bis head to carry it down to Cambpelton with
him? Yes, sir. \Vas the deceased dead at
that time ? I reckon he was dead. Hew
long after he was shot ? As soon as_ the priso-
ner fell he made his way to him. Did he have
any knife? Yes, sir. What happened to
him? They kept him off. Whofkept bieu off?
One ef the policemen struck him with his
stick, and then Mr. Jim Nixon grabbed him and
jerked him back, and he said, " You_don't do it;
you don't do any such a damned thing !" and he
took him and carried him off down the street.
Did you see what became of^ Mr. Phillips?
No, sir; I never paid any attention to what be-
came of Mr. Phillips. From the point where vou
stood the greater part of the time you were
there that day, could you see the balcony at the
east end of the market house? Yes, sir, Dd
you see any on it ? I saw two gentlemen stand-
ing out there, but it is more than I am able to say
whether it was after the prisoner was killed or
not. How long was it between the time the
prisoner appeared at the door at the head of the
steps, and the time he was killed? 1 don't sup-
pose it ceuld have been more than one or two
minutes. It waj very quick work, was it?
Yes, sir. You don't know exactly when it was.
but sometime during the time that you were
around the market house, you saw some one on
that balcony ? Yes, sir. Do yeu know who
it was? No, sir; I did'nt pay any attention.
Do you know whether they were white or black ?
They were white. Was that the first time
you bad looked up there that day ? It it
more than I am able to say. But you remein-
CONVENED AT RALEIGH, NORTH CAROLINA.
U
ber there were two gentlemen up there during
that time ? I might have looked up and 1 might
not. Tou don't remember that your attention
was attracted to that balcony at all that day ?
No, sir. " But sometime during that day yon
saw two gentlemen in it ? Yes, sir. You could
see it from the point where you stood ? Yes, sir.
At the point where you stood all the time ?
Yes, sir. Yon say you did look into that bal-
cony at sometime while you were there ? Yes,
sir. What induced you to looked there ? What
called your attention to it? I am not able to
say I don't know whether it was before or after
Beebee was shot. It is uncertain?- Yes. sir. I
am uncertain whether it was just before or direct-
lv after. Did you see Mr. M. N. Leary Jr. in
the crowd that day ? I saw Leary behind me,
after Tolar killed Archy. You saw him there
that day? Yes, sir. Was he standing near
you ? He was Jsome distance behind me. I
don't know how nigh he had been to me.
Cr ss examined, by the Counsel for the ac-
cused.
Did I understand you, that you were stand-
ing in about the same place all the time you were
there? I only moved about to lit gentlemen
pass me, sir. You stood at one place all the
time, except so far as going .backwards and for-
wards as some one was passing ? Yes. sir. And
yon stood at a place where you- could see
up in the tBalcony all the time ? Yes,
sir. At no time, while you were there,
were you at a point in the street from which you
could not see in the balcony? No sir, And
when Captain Tolar killed Archy, I understand
you to say that Leary was standing some distance
behind ycu? I said after he killed him, I look-
ed around and Leary was standing some distance
behind me. How long was it after? I am
not able to say. Did you see Leary any other
time? No sir; not that I remember. How
long did you stay there after Bebee was killed ?
I stayed there until sunset sir. What time
in the evening was it he was killed ? It was
something after three o'clock, I am not able to
say. When the three o'clock bell rang I was at
the depot, and started for the market house. At
three o'clock you were at the depot. How far is
that from the market house ? It is not more
than two hundred yards. At what time was it
you saw Bebee come out of the guard house? I
cannot say what time of day it was, but it was af-
ter three o'clock. Did you go from the market
house down to the guard house, or did you stop at
the market house ? I stopped right about the
middle way of the arch, out there on the pave-
inent. Is the guard house between the market
house and the depot? No sir; it is on a different
street. You stopped at the market house when
you came from the depot? Yes, sir. Did I
understand you to say in the first of your examin-
ation, that you saw Arcay at the guard house?
Weill saw him when he come out of the guara
house. Yrou saw him at a distance? Yes,
sii Coming up from the guard house ? Y es,
sir. You say that something passed between
you; some conversation ? No sir; that was Ned.
B« bee. You had no conversation with the pris-
oners? No sir. Where did you see Nsd. Bee-
bee ? First he came to my house, sir. Is
your house between the market house and the da-
pot? It is on the other side of the depot, from
the market house. Did you do any business at
the depot in passing along? Yes sir. How
long were you at the depot? I don't know-
when the three o'clock bell raug; 1 started for the
market uouse from the depot. Do you know
whether Ed. Bebee is any relation to this other
Beebee? He may b«, but I don't know it.—
, Did you speak to Archy at the market house?
No sir. You saw Mr. Wemvss and the Sheriff
with him when he came from" the guard house?
Yes,,, sir. And several police? Yes, sir —
Was there any crowd at the market house then ?
Yes, sir. How long did you get to the mark-
et house before the prisoner caine up ? When
I got to the market house, and had got aroudd it,
they were coming outcf the guard house* How
far from the market house to the guard house ?
It is just at the end of the block. Is it a hun-
died yards! It may be a hundred yards, and it
may be more Light it be two hundred yards ?
No sir, it is not two hundred yards. Is it less
than a hundred ? I am not able to say. Can
you guess within fifty yards? I am not able to
say—I have never measured it You can't come
within fifty yards? I don't know sir, I know
it is not two hundred yards. Wben you got to
the market house you say Beebee was coming out
of the guard beuse? Yes, sir. When did
Miss Massey come up? She came up after the
prisoner went up stairs. How long after ? I
am not able to say. It was a verv sh.,rt time, sir.
Where did she come from, which diiection?
i never'paid any attention. Did you see
which way the horses heads were turned? To-
wards the guard house. Which street is the
guard house ou ? I don't know, sir. Which
way do you live from the market house ? I live
West, sir. And the depot is which direction?
It is West. Which direction is the guard
house? South from the market. Bebee
came up then with the guard, and they carried
him up to the room where he was examined ?
Yes, sir. These steps that run up stairs in the
market house, upon which sided the arch are
they? In under the arch, and goes upon the
light side ot the arcb. IIow many arches in
the market houte fronting East ? I never paid
nay attention. There are three, are tbeienot,
at the East end, one large and two small ones?
I would think there were four at each end running
under. I never paid particular attention.
Don't you know how many aichesattlie East end,
big and little? I think there is two. Which
side of the market bouse is it that the steps run
up to the towu hall where they were examining
Bebee ? As you are coining under the arch
Loin the East it is to your light hand. sir. How
broad is toe market house at the East end ? T
am not able to say, sir. As much as 4o leet ?
I am not able to say. As much as a hundred ?
I can't tell you anyt. ing about it. Alter you
have entered the larger arch, how many pairs of
stairs run up to the town hail '! There is only
oue pair ol steps. How many steps make the
stairs ? I don't know, sir. How high is the
first story of the market house ? I never uieas*
ured it. Twenty leet? I don t know, sir.
Fifty feet? I don t know, sir. Y'ou don t
know whether it is tiity feet? No, sir. .You
stood about ten or twelve leet from the tront of
the market house ? Yes, sir. How far were
you from the side wak running along in tront of
the market house ? Sometimes I would not be
more than five leet, and sometimes nearer. And
you say you were teuor twelve teet Irom the mar-
ket house, uid you measure that distance ? No
sir, I just give a guess. How could you ..ttempt
that when you could not guess the height ot the
first >tory ? I guessed it as near as I could, I
don't ted you exactly. If you were standing
ten or twelve feet trom the front of the market
house how far were you Irom the stairs that run
up to the town bah ? The steps are some dis-
tance under the arch, how far I am notable to
12 PROCEEDINGS OF A MILITARY COMMISSION,
say. Y>u did nt measure the front"of the mar-
ket house? No, sir, i never measured it.
You are unable to tell us how far you were from
the stairs running up to the town hall ? Yes, sir.
Cm you tell how high the balcony is?
No 6ir. You say a couple of gentlemen
stood there sometime during the day ? Some-
time while the crowd was around the market, I
won't say whether it was before Archy was shot
or not. How long were you standing in the
street from the time you went there to the time
Archy was shot ? I might have been there
from three quarters of an hour, to a hour, I am
not able to say exactly. And during that time
you saw a coutde of gentlemen in the balcony ?
Yes sir. Do you recollect what kind of
clothes they had on? No sir, I just threw my
eyes upon them. You don't recollect what kind -
of hats? No sir. Do you recollect their
faces? No sir. Do you recollect the color
of their faces ? White men. What was the
color of their coats ? I dont know sir. You
recollect nothing but the color of their faces?
No sir. And that color was white? Yes sir,
they were white gentlemen. 1 didnt pay any at-
tention to who they were. Do I understand
you to give an opinion as to how long they were
up stairs trying Beebee? No sir I dont give
you to understand how long they were. It may
have been an hour, but I don' t think it was.
And you say when you were up there you saw a
good deal of whispering in the crowd? Yes
sir. Did you whisper any? No sir, what I
said I spoke out. You spoke out what you had
to say? Yes sir. How far were you standing
from Tolar when Ed. Powers went up to him and
whispered to him ? I dont know exactly how
far I was from him. Where was Tolar standing
when Powers whispered to him ? He was stan-
ding under the arch, leaning against where they
hang beef up. How far was he under the mar-
ket house? The steps were on my left and
Captain Tolar was right in front of me. He
was on the left hand side of the market house?
He was under the market house. At the
left hand part, was he not? Yes sir. Was
there much of a crowd there? Yes 6ir.
Some of them talking were they not ?
Some were and some were not. Some of them
laughing? Some of them. And you say,
among this crowd some talking, seme laughing,
all moving about; someone weut up and whisper-
ed to Mr. Tolar? Yes sir, he didn't speak out.
He went prettv close t,o Tolar, and Tolar leaned
down to hear what he had to say ? Yes, sir, I
would consider that whispering. Were not
they talking so that anybody by them could have
told what they weie saying? One that was
standing by them might have heard, but I didn't
If you come to me in'a crowd of men, and I
was taller than you. I would have to hold my head
down to hear what you said ; that was the way
he did 1 suppose, was it not? They were very
close together, and I would consider it whispering.
Just as a small man and a tall man would do in
a crowd. I would consider it whisp -ring, I
would speak out. How did you know they said
anything to one another? Mr. Powers went to
Captain Tolar, and I could see them whispering.
You say there was a large crowd there; what
induced" you to notice tbem? I was noticing
the men who had the pistols. Did Powers have
a pistol? Yes, sir. And Hall? Yes, sir.
You were noticing them? Yes, sir. Be-
cause they had pistols you observed them ?
Yes sir. Tou observed Powers when he went
to Tolar? Yes, sir. How far did he have
to go? I don't know, it was a very short
distance. Was Hall under the market house?
Yes sir. On which side of the market house
was he? He was behind Mr. Tolar. How
far was he from Tolar? Iam not able to tell
you, sir. q Give some idea; as far as from you
to me ? No sir ; not that far. As from you
to either of those other gentlemen ? He may
have been. There was some gentlemen standing
between Mr. Hall and Mr. Tolar, after Mr. Pow-
ers had left him. And when Powers had spo-
ken to Tolar he went to Hall? Yes sir.
Were they pretty much of the same size, Hall
and Powers? Powers is a little tallest I think.
Was Hall any further from you than Tolar?
who was furtherest from you? It was about
the same distance, only Mr.'Tolar was right in
front of me. But I would consider it the 6ame
distance. And you say they whispered to-
gether? I saw Mr. Powers come to Captain
^olar and whisper to him. You could not
hear what was said? No sir. And there
was a noise all the time? Yes sir. Were
you iar enough out in the street to see the win-
dows of the Town Hall from whe<-e you were
standing. No sir, I could not see the win-
dows. You saw up in the balcony? Yes
sir. After Powers spoke to Hall, then Hall
went and spoke to Tolar? Yes sir. They
whispered or spoke just like Mr. Powers did?
Yes sir, and then Mr. Hall went back to Mr.
Luttcrloh. They were all talking together ?
Yes St, Did I understand you to say that if any
bod" had been standing there, they could not have
heard what ti.ev said? Idon'tstate how loud
they spoke, Y ou say you just saw them going up
and speaking to one another? YesSir, And
you say it was whispering because you did'nthear
anything of it? But in what tone they spoke to
one anot I er you can't say. If I were to talk to this
gentleman at the distance I am from him, and you
did not hear me, would you call it whispering ?
If he were to lean his head over close to you, I
would call it whimpering. If you wanted to speak
out you would not hold your head close to him,
Did this carri-ge stay there while the trial was
going on? YesSir, The carriage stayed there
until the ladies come down stairs, Which end of
tbe market house was the carriage? The east
end. Was the carriage between you and the
markethouse? No Sir, I was between the car-
riage and the market house, The carriage did'nt
stop right at the side walk ? No Sir, It did'nt
drive up to the side walk? No Sir, Just stop-
ped in the middle of the street, and the ladies got
out. and De Yaun handed them up stairs ? Yes
Sir, After they had been up there some hour
or so, you say the first thing you saw was Hardie
come down with Fairclotb, out of the room?
Mr De Vaun was the first man that came
down, after these ladies went up, and a colored
man by the name of Dennis MeKeever went,
up right, behind the ladies, I am talking
about coming down. Who was the first man
that came oiit of the room ? a Mr. De Yaun.
Where did he go ? He stood on the
steps and helped the ladies out. They came
out first? No, sir, Mr. De Vaun came out first.
And when the ladies came down he helped them
in the carriage? Yes, sir. And a man named
Maultsby called De Yaun, and they went around
behind the carriage? Yes, sir. The carriage
was between them and the market house ? Yes,
sir. Was any body standing on the other side
of the carriage? I did'nt see any one. The
driver was standing holding the reins when Mr.
De Vaun helped the ladies in. How far was the
carriage from you? About ten feet; Mr.
Maultsby came up, and they walked around the
CONVENED AT RALEIGH,. NORTH CAROLINA.
13
carriage and whispered together; When Mr. De
Vaun went back up stairs, and Mr. Maultsby went
round on my left, and jumped upon that bench
and waved his hand and said, "look out boys."
What bench was it he jumped on? On
bench under the arch, sir, to your left hand.
Not on the same side of the areh that the stairs
run up? Yes, sir, the same side. On your
left? Yes, sir. And he stood there by the
foot of the stairs and waved his hand and said,
"boys look out?" No, sir, he got up on a
bench where they lay watermellons. Had you
seen Maultsby before, during the day? Yes,
sir. What was he doing? He came to the car-
riage and said, " I am mighty sorry for Archy;
He will never go away alive." I did'nt askyou
anything he said; it was improper to say that. I
just wanted you to say what he had been doing
during the day. I did'nt see him before he come
to the market house. After he did what you
have described what occurred then? Immedi-
ately Monk Julia said, "boys you follow me."
Where was Mr. Tolar then ? Mr. Tolar was
standing back where he was when Mr. Powers
was whispering to him. Does Maultsby Jlive in
Fayetteville? Yes, sir. Is he there now?
leant tell, sir. When did you see him last?
On the 5th day of July. He is there? He
was then. Monk Julia said, " boys follow me?"
Yes, sir. What did he do? He just stood
around where this lady always has her little stand,
near the steps, and Mr. Powers wenfrunderthere
Did he have the knife in his hand? Yes, sir.
How long a knife was it? I did'nt pay much
attention to his knife, tor he was further off than
Powers was. How long was that before Bebee
came down ? It was but a very few minutes
after Mr. Maultsby spoke the word before Sheriff
Hardie came and stood on the steps, and then
went back and Mr. Faircloth come and stood on
the steps, and I looked around and Archy was on
the steps, and Mr. Wemyss and he came down
with Sheriff Hardie in front. As they got off
the steps then Monk struck at h m, did he ?
Yes, sir. Struck at him with his knife? Yes,
sir. And the Sheriff knocked him down'/
No, sir, he shoved nim away. All this while
there was a large crowd on the side walk 1 No,
sir, they were giving way then to let them pass
with the prisoner. There was V large crowd on
the street? Yes, sir. All the while? Yes,
sir. Between you and the market house? [No,
sir, I kept my position, for I wanted to see.
Was there a crowd bptween you and the Mar-
ket House? No sir, not then. Did the
crowd give way and get behind you? No sir;
they just strung themselves along, and I stood
and tried to get nearer. Did yon get on the
side walk ? No sir. And just then, after
Monk Julia disappeared, the Sheriff came out of
the arch, and as he turned the arch Powers 6aid
something, and struck at Beebee with his knife ?
He struck at him, I am not able to say whether
he struck him or not. What did he say ?
He said, " I remand the prisoner he is mine, give
him up"! and the Sheriff said, "he is my
prisoner," and pushed him off? Yes sir.
And then they started off to the guard house
with him, ana you say Archy fell? Yes sir,
and as he was about to rise Captain Tolar shot
him. When did Tolar come out of the Market
House? Daring the time Powers made his ef-
forts at Archy, I saw Captain Tolar coming
through the crowd, pushing them aside. That
was the second time that Powers struck ? Yes
sir. Had Tolar anything in his hands ? No
sir, Had he a shawl on ? Yes sir. Bad
he it on the whole day ? I am not able to say
sir. Was it a cold day? No sir. Thelllh
of February—it was not a cold day? .No sir.
When you saw him coming out he was shoving
the crowd one side ; saying anything ? No sir,
he never spoke a word that I heard. Which
side of Beebee was he ? Behind Beebee, com-
ing up behind him. When you saw him was
he nearer the Market House than Beebee was ?
Beebee might have been a little nearer the arch
Captain Tolar never got off the pavement.
They were coming in what direction? They
were coming south sii. Did you see Toiar
draw his pistol ? I saw him draw it from under
his shawl; and he laid his left hand upon a gen-
tlemans shoulder, and raised the pistol, and his
hand trembled; and he shot: and I said, " there
Captain you have killed that poor man," and he
never spoke to me, but just drawed his lip up.
I understand you to -say he came out shoving
the crowd on both sides, making his way through
the crowd? Yes sir. And now you say there
was no body on his left? I was on his left.
You were out in the street, he didn't shove
you? I just, stepped back, and still stood on
his left. You were not on the sidewalk at all ?
The crowd occupied the whole of the side-
walk, and he come pretty close on the edge of
the sidewalk, sir. Were you three feet from
the edge of the side walk ? I might have been
three feet. Didn't I understand you to say that
he came shoving his way through the crowd ?
Yes sir. But then you say that there were
no persons on his left hand at all ? I was on
his left hand when he fired the pistol. You
were the only one ? There might have been
more behind me, I didn't pay attention.
There was nobody between you and Toiar?
No sir, none between me and Captain Tolar.
How far were you from Tolar? I was near
enough when he threw back his shawl for it to
fall in my face. He was on the side walk and
you were in the street, three feet from the side
walk? I got right up to him then. You
walked up to the sidewalk then ? Yes sir.
Did you get on the sidewalk? No sir.—
Which side of the sidewalk was the Sheriff ?
He was next the Market bouse, q The Sheriff
had Beebee by his left hand ? No sir, Mr. We-
myss had him. The Sheriff didn't have him at
all? No sir. The Sheriff was walking on
the Market side ? Yes sir. And the priso-
nerwas on the outside of the sidewalk? He
was on the sidewalk ? He was outside from
the market? Yes sir. And Mr. Wemyss,
where was he? Mr. Wemyss was on his right.
Wemyss was next the street9 No sir, next
the market house. Was the Sheriff behind ?
Right in front. Which side was Beebee of the
Sheriff? Bebee was on the Sheriffs'? left, go-
ing in the guard house. But the Sheriff didn't
have hold of him. No sir. I am talking about
Sheriff Hardie. You say the Sheriff was on the
left hand of Bebee? No sir; I said he was on
the right. Where was Wemyss? Wemyss
was on the right. Wemyss was next the
street? JWemyss was next the market house,
sir. As you come out of the East end of the
market house and turn South, you say Wemvss
was on the market house side of Beebee? Yes
sir. And that the Sheriff was too ? Yes sir.
Was the Sheriff behind Mr. Wemyss or be-
fore him ? Just before him, sir. Then Bee-
bee was between you and the Sheriff ? Yes sir.
SheriffHardie was over beyond you from Beebee ?
Yes sir. Sheriff Hardie was ovef beybnd Be-
bee from Tolar? Yes sir. Bebee was be-
tween Tolar and the Sheriff? Yes sir. That
is so; you recollect that? Yes sir. You
14
PROCEEDING'S OP A MILITARY COMMISSION,
recollect the Sheriff walking before "Wemyss ?
Yes sir. . He had him tied, Wemyss had ?
He had him tied by one finger. And Toiar
came behind Beebee? Yes sir. And shot nim
behind? Yes sir. And you were standing
60 near Tolar that you could say, "there Cap-
tain, you have shot that poor man!" and there-
upon he said nothing except drawing in his
breath and rather fixing his lips, sir."
Yes, sir. At the time he fired he threw his
shawl off of himself £ No, sir, he was trying
to conceal the pistol when he threwthe shawl in
my face. And when you threw it back he did'nt
have any pistol? No, sir. audi saw a pistol
pass out of the crowd. When the shawl got
out of your face the pistol or one that looked like
it was ia the hands of who ? Mr. Eddie Powers.
He was standiug how far? He was very
close to M^. Tolar—there may have been a gentle-
man or two between them, but it was very close.
I think when you were first examined you
said Tolar threw the shawl off upon somebody
before that ? No, sir. It was not thrown ex-
cept when it was thrown into your face ? That
is the only time it was thrown off. Did he
throw it off of both shou'ders? No. sir, only
his left shoulder. The shawl did fall off of
him entirely? No, sir, just off of his arm.
He was putting his pistol up the last thing, you
say, before the shawl fell into your face ? Yes,
sir. '' And when the shawl got out of your face,
whether the pi-tol was put up or not you don t
know? No, sir. But you did see a pistol like
it pass through the crowd? Yes, sir. It
passed to Lutterloh ? Yes, sir. Did Ed.
Powers give it to Lulterloh ? Ed. Powers gave
it to Hall and Hall to Lutterloh. How long was
that afterwards ? It was as quick as I could
see. Tolar did'nt attempt to pass it away until
after the shawl fell into your face ? I don't
know whether he passed it at all or not. You
don't say it was the same pistol? No, sir.
The last you saw of Tolar he was trying to put
his pistol, was he a little vexed, by his movements?
He looked like as if lie was very scared, sir.
Like how? As if he was scared—as if he
was frightened. Frightened at what he had
done perhaps ? Yes, sir. Was be Lightened
before that? He did'nt look frightened until
I spoke to him. You scared him I suppose?
I don't know whether I did or not, I suppose
he was scared at what he had done. With re-
gard to Mr. Phillips, you saw Mr. Phillips come
up the street? I saw Mr. Phillips, sir, and I saw
him standing out by himself with a small pisto
in his hands, I am not able to say whether it was
cocked or not. Did he say anything? No,
sir, I never heard him speak to no one. Did he
stand in the same place after the pistol was fired ?
He walked down around to the foot of the
market. Did he say anything then ? I never
heard him speak to no one. Was the pistol
still in his hand ? He had t^e pistol when I saw
him again standing there, but I don't know what
he done with it. I want to know more partic-
ularly how Sheriff Hardie and Beebee and Wemyss
were at the time Beebee was shot by Tolar, as you
say. Do I understand you, Wemyss had the pris
oner under charge? Yes. sir. On Wemyss'
left -he was standing to the right of Archy Beebee?
Yes, sir. And the Sheriff in front o We-
myss ? Ye?, sir. And Beebee between Tolar
and the Sheriff? Yes, sir. And between
you and Sheriff Hardie ? Who? Archy Bee-
bee? Yes, sir, Did you have any pistol
there that'day ? No, sir, I did not. I bad one
and I thought I would carry it but I did'nt.
Questioned by the Court:
You say you heard some one say ehoot, did
the voice appear to come from the crowd below
or from above? I did'nt pay no attention
which way the voice come. I was engaged look--
ng at the crowd and I did'nt know which way the
voice coine.
Be-direct examination:
There is one thing you spoke of, you said Mr.
Maultsby, mark you, I don't ask you to tell
me what Mr. Maultsby said, but you spoke
of his having said something about Archy
now what time was this said? After Mr,
De Vaun, helped the ladies out of the car-
riage. Where was he standing ? He
was walking under the market. Now I under-
stand you to say that after that youug lady and
her mother had got there. Mr. Maultsby' was
walking through th? crowd into the market house,
and that while in that place he made use of that
speech? Yes, sir.
The counsel for the prosecution.
The witness says that just after Mrs.' Massey and,
her daughter came, and they were assisted out of
the carriage by de Vaun, Mr. Maultsby, the same
man that held up his hand as a signal; that
Maultsby moved up the centre of the market house,
making use of the expression alluded to by the
witness in the cross examination. We wish to use
that expression as evidence, and if you have no
objection we will ask the question.
The counsel for the accused objected.
The court; you will please state your objec-
tions. '
The counsel for the prosecution—I wish the cour t
to fully understand the case. This man has stated
that just after Miss Massy and her mother got
to the market house, a man by the name of De
Vaun, helped them up stairs. That after they
had gone up stairs Maultsby, the same man
who threw up his hand and said, "nowbovs."
This man Maultsby, started forward, walking
through the crowd into the market house, and
made use of the expression with regard to the
prisoner, while he was up stairs. Now we ask for
that expression; we say it is an act and a declara-
tion accompanying the commission of the crime
that makes it evidence.
The counsel for the accused remarked:
May it please the Court: De Vaun in this case is
one of the peace officers in the charge, of priso-
ners, acting in behalf of justice there, I think I
may submit to the Court that there is nothing here,
that Has appeared in this case, to implicate De
Vaun. The mere fact that a-Constable, a business
man about town, in the course of his business, in-
terrupted by another citizen to have some talk
with him, is no evidence to implicate him in an
offence of this sort, I submit the fact to the
Court that Maultsby or any body else, interrupt-'
ing a peace office who is on duty, and having some
conversation with him, is no evidence that he was
talking for some wrong purpose. Nothing is more
usual than where a peace officer has been confined
upon duty, that some citizen has some private
business with him, and goes up and carries him
off' to have some talk about it, nothing has occurr-
ed in the rise of this affair to implicate De Vaun
at all. So far as this investigation has gone, so '
far as thpse able gentlemen, who represent the
United States can see, De Vaun ought not even to
be tried; he is perfectly clear. And I might say
the same of Mr. Maultsby. So far as these gen-
tlemen are concerned there is nothing requiring
his arrest; nothing in the way of justice, nothing
in the way of their duties to the State or the
United States that requires them to bring Mdults-
by before this Court, for the purpose of trying
him, for any thing that has occurred there. So
CONVENED AT RALEIGH, NORTH CAROLINA.
15
far as this trial goes Maultsby is considered a per-
fectly innocent man.
But something that he says in private, unheard
by these men upon trial, is to be put in here for
the jeoparding their lives ; a man, I say, named
Maultsby, whose connection with this affair is £0
slight that the prosecuting Attorney and Judge
Advocate do not care to bring him up here frcm
Fayetteviile—has said something to one of these
witnesses unheard by these persons, that is to go
to jeopard and take away their lives That is the
whole' case. Maultsby goes and talks to De Vaun
a peace officer in the discharge of his duty; talks
with him about any of the ten thousand subjects
that interest men of business, or otherwise ; and
then goes up to this witness and makes a declara
lion to him, and'then goes off and says something
that by inuendo may or may not mean something;
but whether it means little or much, the gentle-
men here think it amounts to nothing requiring
him to come here and defend himself, and yet that
man, by having spoken to a witness, occupies such
a situation, as to his words, as to jeopard these
lives. He is not part nor party in this matter.
For that you have the chavaeter of the gentlemen
who are carrying 011 the prosecution ; for having
looked through it, they say he is not to be prose-
cuted. Upon what grounds, then are the words
of this man to betaken as evidence in the prose-
cution? They are not in the same boat; and until
some common design is brought to my view, I
cannot see how the language made use of by one
should be taken as evidence against *he other,
What Manltsby said in the presence of the e men
may go for what it is worth, His standing on a
bench and saying what he did. will be the subject
of observation after a while iu the court; but in
the mean while that other words, private words,
whispered perhaps, according to the expression
of the witness, unheard by these men. that such
evidence is to be brought in here on such a trial-
I object,
The Counsel for the prosecution then spoke as
follows :
May it please the Court; It seems to me that
by this time, taking this as a prima facie case,
and nothing appearing on the other side, one
t-hin^. at least must be satisfactorily made out to
this court; and that is, that there was a combina-
tion of persons in Fayetteviile, that day, concern-
ed in taking the life of Arcliy Bebee; that it was
not the outburst of the moment, but there had
been a previous combination and arrangement be-
tween certain parties, then and there concerned
in the immediate act, by which, the life of this
man was taken away, For what is the evidence
as to that thing? JL)eVaun,a constable, comes
dowu fhe steps; Maultsby, ainairwho has been
in this crowd a portion of the time, goes and has .
a whispered conversation with him. Immediately
upon De Vaun's disappearing up the steps again,
and just before this unfortunate prisoner, who met
bis death then and there, that day. mikes his ap-
pearunce, Maultsby leaps up on a bench to make
himself conspicuous, so that his co-conspirators
could see him and says "look out!'' Look out for
what? for what immediately followed, the ap-
pearauce of this man Bc-ebee, who by concert, then
and there was murdered.
How does the Counsel assume that the United
Slates does not see fit to prosecute Maultsby ?
Upon what ground pray can the defence say,
because he is not included in this particular pros-
eeution, that Maultsby himself may not be called 1
upon to answer for t his offence ? It is not necessa-
ry, certainly, to put them all in the same charge 1
and specification; but it is a bare assumpti< n up-
on the part of the defence, to say that Maultsby is <
• not to be tried as a co-conspirator in this combina-
tion. which we say exists. But not only is the fact
that Maultsby had a whispered conversation with
' De Vaun before the Court; but this Court must see
that the principal pa:ticipator in this act, Capt.
Tolar was in whispered conversation with many
individuals that day. The crowd was gathering 1
More than one individual was_ concerned, as is al-
ready proved, nothing appearing to the contrary.
Tom Powers and Monk Julia did make an a3-
sault upon the prisoner, all tending to a common
purpose, which culminated in the shot that wa3
fired by Tolar.
Now all that the law requires before evidence cf
this character, that I propose to introduce, can be
introduced, is th's, that the court shall be satisfied
that'the prosecution have made out a prima facie
case of combination ; that there shall be enough of
evidence tomrfkeit probable that there was a com-
bination between certain parties, certain men of
Fayetteviile, and that Maultsby was a party to
this combination ; for the law is explicit and clear,
as 'aid down in Wharton's Criminal Law, Section
702, that in a case of conspiracy, or any other
crime perpetrated by several persons, " When
once the conspiracy or combination is established."
and I insist upon it, that we have established it
here, " The act or declaration of one conspirator
or accomplice in its prosecution is considered the
act or declaration of all, and is evidence against
all. Not only is the acc or declaration of one of
the conspirators evidence against the others, but
his act or declaration is evidence against the
others, though the man be not on trial at the
time who made the declaration."
The principle is this, that when men unlawfully
combine together, the declaration of any one of
them in the prosecution of the crime is evidence
against all, and what stronger evidence is it pos-
sible for a court of justiee to have before it, of a
combination than is here shown before this Gourt.
In the learned remarks of Judge McLean,
in a case that was before him in one of the United
Statesi Courts, V. McLean, page 601,—a gentle-
man of great legal, attainments, and of great ex-
perience in questions of this sort—he tebs
Courts of Justice that they are not to expect that
the facts of a conspiracy or agreement to commit
a crime will De. found out and proved by direct ev-
idence, for it is inipossible to do that unless one of
the conspirators turns States' evidence, and proves
it for us, but we must prove such facts and circum-
stances surrounding and accompanying the final
execution of the offence, as will induce the Court
to see prima facie there was a combination. The
conspiracy is rarely, if ever, proved by positive
testimony. When a crime of magnitude is to be
perpetated by a combination of individuals, they
- do not act openly, but covertly and secretly.
The purpose formed is known to none, except those
who enter into it, unless one of the original con-
spirators betray the rest, and give evidence
against them. The only possibility in ninety-nine
cases out of a hundred, of proving the conspiracy,
is by such circumstantial testimony.
What is the testimony in this case ?
Mr. Maultsby was there on the ground; this is the
first circumstance; he was the man who Was Been
in conversation with De Vaun, the person who as-
sisted the ladies in the carriage. The court will
notice that De Vaun bad just come from up stairs,
where the prisoner was confined. It is a logical
conclusion from the consequences to say that De-
Vaun was asked at that time, if the prisoner was
to .comedown.
That Maultsby, finding he w as to be brought
down, immediately turned and sprung upon that
16
PROCEEDINS OF A MILITARY COMMISSION,
bench, where his co-conspirators could see him,
and said " look out boys. " And this was respond-
ed to by these very prisoners at the bar, they
thereby making him their agent for that purpose;
and the fact of Maultsby, being a conspirator with
these persons, is reason sufficient for having vhis
conversation, which the witness has alluded to, go
in as evidence against them.
There are man,y cases, in the books but it is too
clear almost for argument. If the Court thinks
that we have bj prima f'icise evidence established—
that is if we have made a strong case, to show—
that Maultsby was concerned in this transaction,
then his declaration, so inadvertently called out,
or not called out at all, but leaked out, iu the
examination, his declaration is evidence.
The law also admits the declaration of a third
party, made inthe presence of a part^wbo is ac-
cused of an offence. .His own declaration is evi
dence against him; the declaration of a third
party is evidence against him if made in his pres-
ence. Cases have occurred where declarations of
third parties, in the presence of the defendant,
although he was drunk, have been admitted, it be-
ing the province of the Court to decide how far
he was so drunk that he did not know what thatde-
claration meant.
But the main ground that we rest this point
upon, is that the United States have established a
conspiracy against certain parties to slaughter
this boy, Beebee, as he came from that trial. We
have made out the prima faciae case, that these
prisoners at the bar, I mean the prisoners Tolar,
Watkins and Powers,—the case not being so clear
as to Phillips—wrere concerned in his tconspiracy—a
casein which not onlv they are concerned, but
Maultzby is shows to have been concerned with
them, and although he is not charged here, he is
as much their agent as if he were included in this
indictment. I am sorry to detain you so long ; I
submit the question to the decision of the Court.
The Court was then cleared for deliberation,
and after some time so spent, was re-opened; and
the Judge Ad.ocate announced that the Court
over-ruled the objection to the admissibility of
the question.
Re-direct examination by the counsel for the
prosecution,
1 understand you to say that just after Miss
Massey and her mother went up stairs, after De-
VauD had helped them out of the carriage, Mr.
Maultsby walked through the "browd into the
market house ? Yes, sir. What did he say ?
" I am sorrv for Archy—he will never go back
alive." How far were you from him? I was
right at him when he spoke the words. Did he
speak loud? Yes, sir. Is that all he said?
Yes, sir. What were the exact remarks?
"I »m sorry for Archy, for he will nev°r go
back from here alive."
Re-cross examination by the Counsel for the
accused:
Was th -t after ti e carriage had driven away?
No, sir. Where was the carriage? It was
standing where it first stopped, sir. It was after
the ladies Jwent.up stairs? Yes, sir. Did he
speak these words to you? No, sir, he just
spoke the words. That was first you had seen
of him ? No, sir, I saw Maultsby belore the
carriage came. Did he talk to DeVaun when
the carriage came first? No, sir, I did'nt see
him. He did'nt speak in particular to any one
the expression you refer to? No, sir. he just
spoke to the crowd. Was that before Archy
had gone up stairs? Yes1, sir. Who was
standing near Maultsby? I was very close to
him myself. There were several standing around.
He did'nt come uo with the carriage ? No, sir,
he was there when the carriage came.
On motion, the Commission adjourned to meet
on Tuesday, the 23d inst., at 11 o'clock, A. M.
Raleigh, N. C., July 23d, 1867.
The Commission met pursuant to adjournment.
Present, all the members of the Commission,
the Judge Advocate, the Counsel for the prosecu-
tion, the accused and thoir Counsel.
A portion of yesterday's proceedings were read.
The Recorder, having been unable to complete
the record of yesterday's proceedings, on motion
the Commission adjourned, to meet on Wednesday,
the 24th inst., at 11 o'clock, A. M.
Raleigh, N. C., July 24th 1867, 10 A. M.
The Commission met pursuant to adj mrnment.
Present, all the members of the Commission, the
J udge Advocate, the Counsel for the prosecution
all the accused and their Counsel,
The Judge Advocate then continued the reading
of the proceedings of the Commission on the 2Ind
instant.
Witness, John Arm trong made the following
corrections in his testimony—in answer to the
question on page 88, line 15, in place of " Yes sir "
he wished to insert. "At the time the outcries of
shoot the damn son of a bitch, " occurred it was
that I looked up into the balcony."
In answer to the question on page 89, line 4 he
wished to insert the following, in place of "No,
sir," " Yes sir. " I recollect very well when the
word came to .-hoot the damned son of a bitch, I
throwed my eyes up and saw two gentlemen stand-
ing up there. But I took my eyes down, attract-
ed by the movementof Mr. Tolar, coming through
the crowd, and I throwed my eyes on him and
kept my eyes on him. "
The proceedings of the 22nd and 23rd having
been read were approved.
On motion, the Commission was cleared for de-
liberation, and after some time spent the doors
were re-opened.
The Judge Advocate stated that the prosecution
proposed to enter a nolle prosequi in the case of De-
fendant Samuel Phillips.
The Commission was cleared for deliberation,
and after some time spent, the doors were re-open-
ed, and the Judge Advocate announced that the
motion of the Judge Advocate to enter a nolle
prosequ i in the case of defendant Samuel Phillips
had been sustained by the Commission.
The Commission then proceeded with the trial
of Wiliiam J. Tolar, Duncan G. McRae, Thos.
Powers and David Watkins, otherwise called Mon k
Julia.
Lohis'Smith, a witness for the prosecution, hav-
ing been first duly sworn, testified as follows:
Examined by the Council for the prosecution:—
What is your name? Louis Smith.
Where do you live ? Fayetteville, How long
have you lived there ? I was born there; near
twenty-one years ago, sir. What is your occu-
pation there ? 1 am doing no particular work,
stayed with William Baker for five or six years.
Have you been staying with him since the war ?
No, sir, I stayed some time in Virginia, running
on the line of steamers from Franklin to Edenton.
Were you living in Fayetteviile at the begin-
ning of this year? Yes, sir. Do you know
Archy Beebee ? I do sir, or I did. What has
become of him ? He is shot now sir. Did
you see him shot ? I did sir. Where was he
shot, at what town? Fayetteville. What
part of the town? At the market house.--.
Were you present?. I was, sir. Do you re-
member what month it was? February, I think.
CONVENED AT RALEIGH, NORTH CAROLINA.-
17
Do you remember the day of the month ? No,
sir. Do you remember the day ol' the week ?
Monday, sir.' In the afternoon or morning?
Afternoon, sir. How came you at the market
house that day? He was an associate of mine,
and I heard the trial was going on, and I went
down to hear it. What time did you go to the
market house ? I don't know exactly what time,
I don't think I was there over fifteen or twenty
minutes before Beebee came down. He was up-
stairs when you got there? Yes, sir. And
you think you were there fifteen or twenty min-
utes before he came down ? Yes, sir. Where
were you standing ? On the south east side of
the market house. On the side walk or in the
street? On the side walk. Under the mar-
ket house or outside ? I was at different places
during the time I was there. Were you under
the market house at all, sir? , Yes, sir. Were
you walking about? Yes, sir. Whilq Beebee
was up-stairs did you see any of these prisoners
at the bar? I did, sir. Who did you see?
I saw Tom Powers for one. Any one 'else ? I
seen Monk Elder. What is his other name?
We always call him Monk Julia. Did you see
any ol the others? No, sir. Was there any
crowd at the market house when you first got
there? Yes, sir, a right smart crowd. How
many do you suppose ? There might have been
80, or more; 50, perhaps. Was the crowd larger
when you went away? Yes, sir. Between
ft le time the deceased man, Beebee, was killed, and
the time you first went there, did the crowd grow
larger or smaller? It grower! larger. Con-
stantly grew larger? Yes, sir. You say you
saw the defendant Powers and the defendant
Monk Julia, during the fifteen or twenty minutes
you were there, while Beebee was up-stairs ? Yes,
sir. What were they doing? They were walk-
ing about. Did you hear them say anything?
No, sir. Nothing to attract your attention?
No, sir. Did you notice any body doing or say-
ing anything that attracted your attention dur-
ing that time ? No, sir. Was there any cause
ot alarm? No, sir. Was the crow'4 quiet?
Yes, sir, it seemed to be quiet; there was a
good deal of talking and whispering around,
There was a good deal of whispering? Yes,
sir. W o did you see whifper ? I never paid
any atten'i n who it was Can you say or can't
you? I can't say. You can'' pretend to say,
but you noticed some whispering ? Yes, sir.
What was the first thing that attracted your at-
tention, as being unusual? After they started
down with Archy. Who started down with
Archy ? Mr. Wetnyss and the Sheriff I think had
him. Did any one come out of the door, down
the market house steps before Archy came down?
Yes, sir. Who was it? There wire two
ladies, and I don't know whether any gentleman
or not. If I am not mistaken Mr. Israel Bauns.
Is his name Vaun or Bmn? I don't know, but
I think it is Baun You thins he c.ime down
with them? Yes, sir- What became of those
lad es? They got in the carriage. Where
was that carriage ? At the eastern end of the
market house. How far was it from the arch,—
how many steps? I suppose four or five. How
xnanv steps across the pavement in front of the
market house? I don't know, sir. How many
yards? Iam not acquainted much with yards.
Can't you show us by something here how wide
it is? I guess it is as wide as from me to Major
Johnson, may be not quite so wide. Was the
carriage on the side walk? No, sir. How
far was it from the edge of the side walk ?
Well, may be it was four or five steps, Did
these ladies go to that carriage and get in ? Yes
Sir, What became of the carriage ? It drove
off downthe street, Sir. Was that before you
saw Archy at all? Yes Sir, You say when
they came down—speaking of Archy,—who was
wiili him? Mr Wemyss was with hirn, Which
side of him ? On the right side, I think, Any
one else ? Mr Bardie was with him; but I think
Mr Hardie was on the left, or right in front of Mr
Wemyss, I cannct exactly remember but I
know they were both with him, Did you see
any one else with him? No Sir, I didn't pay any
attention, Was any body else with him?
There wa3 aright smart crowd,—some five or six,
You don't know who they were? No Sir,
What happened as he came down? Af.er lie
stepped off the steps I saw Mr Powers m ike to-
ward him, and he said, "demand the prisoner!'"
and Mr Elder followed him with a knife, and made a
cut at him, and was shoved off by some one,
Who was it said "demand the prisoner? Mr
Thomas Powers. Have you any doubt about
it? Not a bit, What did Sher iff Hardie reply 7-
I didn't hear him say any thing, Sir, Where-
(lid Mr Powers come from, how tar did lie have to
walk to get up to raaks that demand? He was,
standing on a bench, on the left hand side as you
come down the steps; he was standing inside ol tin*,
bench, Did he move? Yes, Sir, ho made a
step or two. He made use ol this expression?
Yes, Sir, Did you see him do any thing? No fur,
the crowd rushed up pretty strong and I got "back a
little further, Where were you standing? I wan
standing on the side walk. In trout of tne arch ?
Yes Sir, juston the outside of the arch, liight
square intront ofthe middle of the arch ? A little
towards theleft corner as you go out of the arch.
On the pavement? Yes, Sir, What did ywu
sav you saw Elder or Monk doing? lie cut at
him with a kmfe ? He bad a knife? Yes, sir,
Did you see any ot' er knives or weapons? I
never saw any other knife. What happened
then; after Powers made this demand, and Eider
rushed up with a kni'e,—what happened then ?
The Po-icemen seemed to bo beating them pretty,
strong with their clubs; and just as he was coming
from under the areb. Monk made at him again,
with ins knife, and Mr. Nixon shoved him off.
What is Mr, Nixon's first name ? Jim Nixon.
That was just as Beebee got outside of the arch ?
Yes, sir. What had become of Mr, Torn
Poweis? I didn't see him at that time at a]!,
sir, I don't know where he was. What happen
ed next ? After he cleared from under the mar-
ket tlie crowd all rushed up towards him again,
and I heard a "shoot him!" " shoot him !" and I
stepped off the side walk right- close along side of
him, and I seen Sir. Tolar rushing tbr >ugli the
crowd, and he ran over and said " Clear away gen-
tie > en," and he ran right over and fired, and then
I moved .i step or two forward and saw Mr. Phil-
lips come up with a pistol in his hand, but the
man was shot then. Some one asked iiim if it
was him who shot, and he »aid no, lie did'nt get a
chance. How close were you to Mr Tolar when
he fired the pic-to'? I was not very far from
h'm Could you put your hand on him ?
Yes, sir, by reaching over. Was he to the left
of you or the right? Mostly in front ot me.
Did' you see any pistol in Mr. To'ar's hand ?
Yes, sir, when he shot it What became of it ?
I don't know, sir, I saw him carry his hand
down by his side. Who was standing near-
est hitn when he fired? Ed. Powers was
tanding be hind him, Samuel Hall was close
by, and Mr. Lutterloh's son and a young man
named George Ha 1 was not very far off. What
is Mr Lutterloh's son's name ? Ralph. Aud
a young man by the name of George |Hall ?
Ye«, sir. Didn't you mention Sam Hall 1
18
PROCEEDINGS OF A MILITARY COMMISSION,
Yes. si<\ Are they brothers? No, sir.
Is George Hall a grown man? Yes sir, a
youDg man, grown up. Which is Mr. Tolar?
That gentleman with the specks on. Is he
the man you saw Are the pistol? He is the
man. What became ot him after he fired the
pistol? He turned around, and I don't re-
member whether he went under the market
house ornot, but the next time I saw himhe was
going into Mr. Hinsdale's store. Where is Mr.
Hinsdale's store? On the opposite corner.
After you go out of the west end of the market
house?. Yes, sir On Hay street? Yes,
6ir. What else did you see there that day, any
thing.? No sir—yes I heard Monk say after he
was shot, "let me cut his damned throat."
What was he doing when he said that ? Mr.
Nixon had hold of him and asked him "what in
the hell he wanted to kill a deadnigger for," and
took him olf one side. What was Monk do-
ing when Mr. Nixon was holding him off, was he
struggling? No sir, he didn't seem to be.
Did he have any weapon ? .He had a knife in
his hand. Did you see any one with weapons
that day, beside the weapons you have spoken
of? No sir. What was the last you saw of To-
lar after he fired the pistol ? Captain Wells ask-
ed me who fired the pistol, and I told him To-
lar did it, and he asked me where he was, and I
pointed him out to him, over on Hinsdale's cor-
ner. That was the last I saw of him. Did
you see any weapon about him the last time you
saw him? No sir. Did you notice any of
the witnesses there in the crowd? I saw Sam
Toomer. Anybody else? John Armstrong.
Anybody else ? 1 saw Robert Simmons—
I did'nt see any of the other witnesses. Af-
ter the man was shot, I Eaw Leary and
Mrs. Elliot. Did you see any of these
defendants in that crowd that day ? None
but Mr. Kelter and Mr. Powers. 1 only noticed
them particularly. From where you wei e stand-
ing, could you see the balconv that goes out from
over the market house ? Yes, sir. Was any
©nocnit? I never noticed it at all. You
mean that there was no one on it ? I did'nt see
any one. I did'nt look up there. Could you
have seen them from where you were, if you had
looked ?. If I had looked, I could. You spoke
of some shouts that were made—what were those
shoufs ? ' Shoot him!" "shoot him 11" How
many times did you hear that? Once or. twice,
How many voices did you hear? I could not
say. Was it several or a single one or in two or
three or four ? I hardly think it was more than
two or three times. Do you think it was said by
the same person ? I don't know, sir; But vou
heard that exclamation two or three times ? Yea,
sir. Did you see what became of the deceased
after the pistol was fired? Yes, sir; 1 saw him
fall. Did you see him after he had fallen ? Not
foro some time afterwards. How long after-
wards? I guess about twenty or twenty-five
minutes. Was he dead then? Yes, sir. You
spoke of Monk Julia or David Watkius hav-
ing made an attempt to cut the deceased man
with his knife before he got outside of the
arch ? Yes, sir. What became of Monk after
that? He come round and stepped a step or
two back; and just as they turned to go out of
the arch he made another cut at him. What be-
came of Monk then ? He got off of the sidewalk
and went around to the steps at the corner of the
market. Where was the prisoner then ? He
was between the arch and the corner. How close
was Monk to the prisoner as he stood there ? Five
or six feet, may be further off. Did he stand
still ? No sir. They were trying to get him on
—trying to get on with Beebee—but the crowd
was rushing up so they could not move much.—
What was Monk trying to do? He was trying
to cut him. What did he do? Well he was
cutting with his knife so, (illustrating). How
many could you count, do you suppose, from the
time the man Beebee came out of the door on the
steps until he was shot ? How many men could
I count? How many in number ? I don't
know sir. Was it as long as you could count a
hundred? Yes, sir. Could'you count more?
I don't know sir. I want to know whether it
was quickly done, or whether it took several min-
utes. Yes, sir—from seven to ten minutes I
should think. How long do you suppose you
have been examined now? About ten or fifteen
minutes I suppose. Do you think it was as long
as that ? Yes, sir. Where was the Sheriff
when Beebee was shot? To the right of him.
Did you notice any of those other five or six officers
that came down the steps with him? Yes, sir
I saw Mr Hornrind and Mr. McGuire. Had they
their c.ubs? Yes, sir. Did they endeavor to
protect the prisoner? Yes sir, it seemed as if
they tried to protect him. When Archy was
shot, was that the first time you saw him fall that
day? No, sir. He had a" comfort around his
neck ; and in the struggle, some one had him in the
comfort—and he went cut of sight, he and Mr.
Wemyss both, and he fftised up and straightened
himself back, and was shot. Who was it had
him by the comfort ? I don't know, sir. Was
he" up fullv on his feet? Yes, sir, right straight
up, straining his neck back. And then he was
shot? Yes sir.
Cross examination by the Counsel for the ac-
cused.
You say you went down to the market house
about three o'clock that day ? No, sir, I did'nt
say what time it was. What time was it ? I
do not know, sir. Where did you go from ? "I
went from Jim Bowman's house. YYhere is that ?
Right above where Mr. John Hall's store is.
How far is that from< the market house? I
never measured it. Five hundred yards ? Yes
sir, and more too, What time do you think it
was when you got there ? I don't know exact-
lv. You say you went down to hear the trial ?
Yes, sir, I heard Archy's trial was coming off
Trial for what? For committing a rape on
a woman. What woman? William Mas-
sey's daughter. When you got there did you
see Beebee come from the guard house?—
No sir. Where was Beebee when you first
got there ? He was up in the market house.
How long was it after you got there before Beebee
came down ? It was not long. Quarter of an
hour—half an hour? It was not half an hour.
Between a quarter and a half an hour? Yes,
sir, it was some fifteen or twenty minutes. Where
were you standing during the time you were wait-
ing there ? I was not standing in any particu-
lar place. About what place ? I was first
undei the market house, and then out. When
.you were under the market house were you near
the eastern arch ? Yes, sir. When Beebee
was brought down the steps where were you
standing? I was standing between the eastern
arch and a bench. How far off from the steps?
I don't know, sir—five or six steps. ' How near
were you to the bench ? I was not more than a
step or two. _ You mean Becky Ben's bench?
Yes. sir. Which is on theleft as you come down
thesteps oftbe market house? Yes, sir. You
come down the steps of the market house, and you
pasj through Becky's stall, and as you do that
you pass near the bench you have been speaking
of? Yes, sir. You were a step or two off
CONVENED AT RALEIGH, NORTH CAROLINA. IS
from the bench ? Yes, sir. How long had
you been there before the prisoner was brought
down? I went there just as he started down.
And before he got down ? • I was there from the
time he was coming from the door down to the
foot of the steps. Had you been standing at
the bench for some minutes before Beebee was
brought down? A very short time. How
many minutes ? It was no minutes ; it waa not
more than a minute. You were not there more
than a minute? No, sir. W-11, before you
went up there near the bench, for five minutes or
so, where were you standing? About five min-
utes before I went there I was outside of the mar-
ket house, when the ladies got out of the carriage.
Could you see at that time every thing that hap-
pened under the market house? No, sir, I
could not while 1 had my back turned toward the
market house. You did have your back turned?
As the ladies got into the carriage I had my back
turned. Then you turned and came back into
the market house, and took your stand near that
bench ? I passed near it, but I was not stand-
Jng near it for five minutes before he came down.
I want to see if vou can rememeer for how many
minutes you were standing near that bench before
the prisoner was brought down stairs—? Not
more than a minute. Did you see Maultsby
there that day ? Yes. sir, after the prisoner was
shot. Did you see him before the prisoner was
shot? If I did I don't remember. Did you
hear anything from him ? I did not, sir. Did
you see him about the bench before the prisoner
was shot? I did not. Didn't youseehim on
the bench just as the prisoner was being brought
down? No, sir. Did'nt you hear him say
something there from that bench just as the priso-
ner was being brought down stairs? No, sir.
If Maultsby had been upon that bench at the
time the prisoner was brought down stairs, could
you have seen him ? If I had turned I could.
If Maultsby had jumped upon that bench, and had
called out, "There he comes, boys!" in aloud
tone of voice, just as the prisoner was being
brought down stair, could you have heard him?
Yes, sir. Did you see, or did you bear any-
thing of that sort? No, sir. Do you know
Maultsby well? Yes, sir. Isn't he a tall
man ? Yes, sir. And you say that while you
know Maultsby, and know him well, while you
were standing there near that bench, at the time
the prisoner was brought down, that you did'nt
see him jump upon that bench, and hear him ex-
claim, '• ihere he comes, boys I" ? No, sir, I
don't recollect to have seen him at all until after
the prisoner was.shot. Now, when the prisoner
came down stairs, who came first ?—-you say Miss
Massey came down ? Yes, sir. Who came with
her ? I am not sure whether Israel Baun was with
her or not. Any other lady with her? Yes, sir,
her mother was with her. It was the young
lady that Beebee was charged with having at-
tempted to ravish, and her m ther,that came down
stairs? Yes, sir. How long did. they come
down before the prisoner was brought down ?
About four or five minntes. Did you look at
Miss Massey when she came down? I did, the
best I could get a chance to look. Did you look
at her neck and her face ? She had a veil on her
face. Did you look at her neck? Yes, sir, I
could see the back of her neck. Did you see
any mark upon her neck? I saw a scratch.
"Was the blood flowing from it? It looked red.
How long was the scratch? I don't know, sir.
Was it a quarter of an inch or an inch ? 1 guess
it was about an inch. On what part of her
neck was the scratch? On the right side.
Well, in about four or five minutes after she pass-.
ed down you say, the prisoner was brought down ?
Yes, sir. Who came down with Beebee, Mr.
Wemyss and Mr. Hardie did you say? Yes,
sir. Did Mr. Hardie have hold of the prisoner?
I could not say positive, whether fie did or not.
Did you notice whether he was in front of him or
in the rear? Mr. Hardie—to the best of my re-
membrance, Mr. Hardie was on the left, when
they first started down the steps. And Mr.
Wemyss on the right? Yes, sir. Did vou see
any other members of the town guard there with
thern ? I never noticed them. Did you notice
Mr. Bond there with them? I noticed Mr.
Bond being with them after they got outside of
the market house. But on the steps? No,
sir. Did you notice Mr. Faircloth with them ?
No, sir. Well, you say when they got down *o
the front oi the steps, there it was, "that Monk
Jnlia rushed upon the prisoner with his knife ?
Mr. Powers made the first rush. Before they got
off the steps? No, sir, after they got off the
steps. Was that when they got into Becky Bet/a
stall? Yes, sir. Where did Monk rush from?
From near that bench. Was he inside of the
stall at the time? Yes sir, inside of the stall.
He rushed at him with his knife? Mr. Powers
made the first rush. Did you see Powers have
a knife in his hand at that time? No, sir, I never
saw any knife in his hand. Powers just ran up
and said, " I demand the prisoner ?" Yes sir—I
didn't notice his hands. What reply did Mr.
Hardie make? I never n ticed any at all.
Did you see Mr. Hardie at that time ? Yes, sir.
You saw Mr. Hardie'at that time? Yes, sir.
What dp you think was Mr. Hardie's position, at
the time Powers rushed at the prisoner? I
think he had got sort of front of him. He was
on the right hand; Mr. Wemyss—he was on the
left? I didn't notice anybody in particular.
Did Mr. Hardie have hold of him at that time ?
No sir, I don't think he did. They then came
out of Becky Ben's stall, and when they got nearly
out of the arch you say, .then somebody else rush-
ed at Beebee again ? I saw Monk Julia rush at
him again. Did you see anything in his hand?
I saw him have his knife in "his hand. What
prevented Monk from getting at him, at the time
he rushed upon him ? The first time, I could not
see. The second time what prevented him?
The second time he rushed, Mr. Nixon prevented
him. Did you see the police use their clubs
there, and beat the crowd back? I saw them
use their clubs pretty considerable. When you
lost sight of Arehy as you say, when he and Mr.
Wemyss went down, do you know what Mr.
Hardie's position was? During the time he
went down, and after Monk Julia made the
second attempt at him, Mr. Hardie changed
bis position, and got right in front of Sir.
Wemyss. Mr* Wemyss was on the prisoner's
right hand? Yes, sir, Now, at the time the
prisoner raised up—after the time he got up after
you saw him go down, where was Mr. Hardie
then ? In tront of Mr. Wemyss. W hich way
wa3 Beebee's face looking? Looking down
towards the South street. The street running
South? He was fronting that way. How far
was he off from the outer edge of the pavement ?
He was not very tar. Well, how far; give some
idea? The crowd was very thick before him, I
could not see how far. Was he a foot ? Yes,
sir. it was over a foot. Then when he'raised up
and when he was fired upon, was he nearer the
centre, or was he nearer the outer edge of the
pavement,—the prisoner Beebee? 1 think he
was near the edge. How far do you think he
was from the edge of the pavement, when the shot
was fired,? I could not see for the crowd. You
20.
FROCEEDINS OF A MILITARY COMMISSION,
i-ny he was near the edge of the pavement. Yes,
f ir. And you think that Mr Wetnysswas on his
right hand, and that Mr. H irdie was in front of
Mr. YVemvss? Yes, sir. Yoiusaw Mr. Hardie
'•nen? Yes, sir. And you swear tliat at that
t uie Mr. Ilardie was in front of Mr. Weeny** ?
Yes, sir. Wa3 he directly in front of Mr.
YVemyss ? Yes, sir That would throw him
u> the right of Mr.Beebee? Yes. sir. _ So that
was Mr. Hardie's position? Yes, sir. To
she front of Wemvss, or to the front and right of
i he prisoner? Yes, sir. he was further in front
of the prisoner than Mr. Wemyss? You are
not mistaken about that? No, sir, I am not
mistaken No danger for you to be mistaken ?
No, sir, not a hit of it. Weil then vousay you
saw the pistol fired ? I did, sir. And you say
ihatTolar shot him; whore was Tolar standing?
lie was standing in the rear ot the prisoner. How
far were you from Tolar at the time he shot? I
was not very far from him. How far would you
think? As far as from here to Captain Reining
r m I should think. Was Tolar on the pavement ?
Yes, sir. Was he near the edge of the pave
ment.or was he nearthe centre of the pavement ?
He was not far from the edge of the pavement.
Which was nearer, taking aline right back ; which
was nearer the edge of tire pavement, toe prison-
or, Beebee, or Captain Tolar ;—suppose you had
.-'.ruck a straight line from where Beebee was
r funding, to where Tolar was standing, would that.
► traight line have gone to the right or left of
Tolar? It would have gone to the right. How
.-.such ? I don't know Sir. If you think how
fir the prisoner was, and how far Tolar was from
i oe edge of the pavement, you can atiswer my
question? I didn't go to look to see how far he
■•.as standing from the edge of the pavement
(tut you are sure Tolar was upon the pavement ?
Yes, sir. You have no doubt about that ? No
1 tow far was Tolar off ftom the deceased,—from
Net bee? About as far as from here to colonel
Nomford. About ltow many men were between
Captain Tolar and the prisoner at that time ? I
.'put know, sir. Werefthere a, good many ? No.
sir. Was there one man? I think there was one
man, I saw him put his hand upon one man's shoul-
del-—Ins left hand. There was not a great many
man? No,sir. Bo you think then the" space was
'•dear? Yes, sir, the space was clear from the
prisoner's shoulders up to his head, between him
and Captain Tolar at that time. What was be-
J ween To'ar and the lower part of his body?
oomo men leaned to one side. And Tolar when
no fired was as tar Ivom the prisoner as you are
from Colonel Bomford? Yes, sir, almost that
• istance. Did you see Tolar draw the pistol ?
Yes. cir. Where did he draw it from ? Right
'rem down to his leftside. Did he have on a
1 elt ? I didn't see any belt. He had on a brown
i-hawl. And he drew it from under the shawl ?
Yes sir. What sort of a pistol was it? L
) Hiked like anavy repeater. How long was it?
It lonked like about a loot long. You saw him
draw it? Yes, sir. Did see him cock it. No,
sir. Did you see him present it ? I did. sir.
How long an aim did lie take ? But a very
uctle aim before he fired. Did you see the
smoke? Yes, sir. You saw the smoke arise
trom Tolar's pistol? Yes, sir. Did you see
John Armstrong t here ? I did, sir. Where
was J ha st .nding at the time Tolar fired ? John
was standing near M •. Tolar,—I think right at the
side of him. Which side? He Was on the left
hand side. Was John Armstrong on the pave-
meat? Yes, sir. So Tolar was standing on
the pavement, and John was standing on the pave-
mant to his left hand side ? Yes, sir. How
Ur was John off from Tolar at that time ? I
didn't take much notice, he didn't seem to be
standing very far. There cou'd not another man
have got between them. Was John near the
edge of tho pavement*? He was on the pave-
merit a little. John was on the pavement and
Tolar was to his right? Yes, sir. And you
think there was spaee for another man between
them? No, sir, I don't think there was. You
noticed Tolar's shawl ? Ye3, sir. Did you no-
tice anything peculiar about his shawl? No,
sir. Didn't you notice that his shawl was off
his arm ? I never paid any attention to its be-
I ing off hi3 arm. Did you see him after he fi >ed ?
Yes, sir Did you have your eyes fixed on him
after he fired ? Yes, sir. From the time ho
fired till lie turned off ? No, sir, not ah the time.
Did—you notice just before he turned off, oid you
notice that his shawl was off his arm ? No, sir,
I didn't notice. Did you see him throw his
shawl back ? I don't know that 1 did. You
didn't seo that ? No, sir You say that after
Tolar fired he went buck up to Mr. Hinsdale's?
He stood w-' ere he was standing tor a minute or
two. And then went back to Mr. Hin-dale's ?
Yes, sir. I was ta king to some one, and when I
saw him again he was going betweon the market
house and Mr. Hinsdale's s'ove. You don t
know whether he went through the market house
or around it? No, sir. When lie got up to
Mr. Hinsdale's store, did you see him then ? Yes,
sir, Did he stand out in front of the store, or
did he go into the store ? He went iDto the
door fronting on Hay street. Tolar went' into
the door fronting on Hay street ? Yes, sir, and
then he passed around and took his stand in the
door fronting east. That store of Hinsdale's is
a corner store ? Yes. sir. And has two doors
near each other? Yes, sir. One fronting
upon Hay street and the other toward the market
house? Yea, sir. Aud Tolar went into the
Hay street door and passed around and took his
stand in the door which was fronting East?
Yes, sir. How long did he remain there? I
could not say, sir. At the time that Tolar fired
the pistol, and before lie turned off, you were
there near him ? Yes, sir, I kept my same posi-
tion except stepped back a little. Now when
Tolar turned off after shooting the man, did any
body say anything to him ? I didn't hear any
one. Did you see any body turn round, and
say to Mm, "there Captain, you have killed that
poor man" ? No, sir, I don't think I did. If
that remark had been made in a moderate toue of
voice, were you near enough to have heard it? I
don't know as I could hear it distinctly, almost
every one around was talking. You were near
him at that time ? Yes, sir. And you heard
no such remark as that? No, sir. And you
are certain that you did'nt see him then, throw
back bis shawl as be turned round ? No, sir, he
moved his shoulders just a little. He just shrug-
gcd up his shoulders ? Yes, sir. You did'nt
sec bim throw his shawl hack ? No, sir. What
did Tolar do with his pistol? I don't know
what became of it. You didn't see whether he
returned it to the place where he got it from ? I
don't think he did, alter he fired the pistol he
moved his arm back, and the crowd all closed
right up. How many people do you think were
there at that time—about the time he was shot ?
I don't know, sir. Was there a large crowd?
Yes, sir, a pretty good crow d. Both white and
black ? Yes, sir. You have no idea as to the
number—75,100,200? I dont know, sir. Were
there as many as 50? Yes, sir, more than 50.
As many as a hundred ? I could not say and be
justified, sir. YY ere there aboutas many blacks
as whites ? I am not able to say. Did yoa
CONVENED AT RALEIGH, NORTH CAROLINA.
21
go there armed on that occasion? No, sir, I
was not expecting any such a thing to occur.
You carried no arms with you at all? No, sir.
You didn't have a pistol? I did not. But
you just went down there because you heard
Arehy was to be tried, and you wanted to see how
it was? Yes, sir. I understood yon to say
in your direct examination, that you saw Air.
Phillips come up ? Yes, sir. Where did he
come from; which direction? He came from
behind me. When did he go up to Captain
Tolar? I never saw him near Captain Tolar;
he was on the outside of the side walk. And
you say lie had a pistol in liis hands ? Yes, sir.
What sort of a pistol was it? It was a small
pistol, one of those small four barrelled pistols.
Which hand did he have it in ? He had one
hand hold of the breech, and the barrel was lay-
ing in his o'ker hand. What did he say?
Somebody asked him, "Sam was that you shot,"
and he turned and said, "no, I didn'tgeta chance
to shoot." Did you see him make any effort
to shoot ? No, sir. Did you see him press-
ing into the crowd? No, sir. You didn't
see him present the pistol at all ? No, sir. Did
yon see the pistol distinctly that Phillips had in'
his hands ? I saw it what I could. Now I
ask you if you saw that pistol with sufficient dis-
tinctness to say whether it was a navy revolver ?
It was not a navy revolver. You are certain of
that? Yes, sir, if it was, it was smaller than
any one 1 ever saw before. That was all you
heard Mr. Phillips say,—that he didn't shoot, be-
cause he didn't get a chance? He said he didn't
get a chance to shoot.
Ra-direct examination by the Counsel for the
pros cution:
You were asked by the gentleman that ba3 just
examined you whether, when you were standing
inside of the market house, near Becky's bench,
you could have seen anybody who jumped up on
it and shouted to the crowd, "look out boys!"
I could have seen itif I looked. You mean to
swear that no such a thing happened ? No, sir,
I don't know whether it did or not, I didn't see it
When you saw Mr. Tolar, afmi lie fired the pistol
do you mean to swear, or not, that he didn't
throw his shawl off his shoulder? No, sir, I
didn't see him do it. Do vou know whether he
did or not ? I don't. You didn't notice him
make any such a movement? Nm, sir. Whore
did vou say that John Armstrong was standing
about the tim« Tolar shot? He was standing
near him. flow' ''igh the pavement from the
earih below ? It is not more than about six
inches. Did you say he was standing on the
•pavement? Yes. sir. How do you know?
I was on the ground and they were the other side
of me. You are quite sure he was standing on
the pavement? Yes, sir. I think he was on the
pavement And you are sure the Sheriff was
st inding in front-of Mr Wemysswlien Arehy foil?
Yes. sir. Was the Sheriff nearer the wall of the
market house than Beebee was? Yes, sir. The
Sh--riff ana Mr. Wemyss then had the market
house wall on their right? Yes, sir. And
Beebee on the left, ? Yes sir. Was the Sheriff
in a line with Beebee and Tolar or not? I don't
hardly think he was, sir. The pistol shot fired
by Tolar, in your opinion, did not range with the
Sheriff? No, sir
On motion, the Commission adjourned, to meet on
Thursday, the 25th instant at 10 o'clock, A. M.
Raleigh, N. C., July 25th, 1867.
The Commission met pursuant to adjournment.
Present, all the members of the Commission,
the Judge Advocate, the Counsel for the prosecu-
lion, the accused, and their Counsel.
Tne p oceedings of yesterday were then read
and the following corrections weremade in witness
Louis Smith's testimony :
Add to answer of witness, line 11, page 162.
(Pamphlet, peg" IS, second column line 29 from
top ) "grasping the comfort in front of the throat."
Line J5, page 177, (Pamphlet, page 20, first col-
umn line 32 ) amend the question to read :—
" running bark paiailel with the east front of the
market house,"'and strike out the woids," to
where ToJar was standing/' line 15, same page.
Yesterday's proceedings were then read and ap-
proved
Dr W C McDuffie. a witness for the prosecution,
having been fiotdnly sworn, testified as follows :
Examined by the Counsel for trie i rosecution :
What is your name ? W. C. Dufiie. Where
do you reside ? In Payetteviile. How long
have you been living there?' About fiifeen
years. What is your occupation ? Pliy. ician
sir. You are a practitioner of med cine ? Yes,
sir. Did you know Arehy Bi-el ee ? No, sir,
not personally Did you know him by sight ?
No. sir. Were you in Faye'teville on the 11th
of February last ? Yes, sir. Were you called
upon to examine a person who was wounded that
day ? Yes, sir, I examined a colored man who
Was said to be Arehy Beebee. Where were
you when you were called upon? I-was be-
tweenthe market house and Ilin-da'e's drugstore,
on the West side of the market house. Is that
Hinsdale's drug store at the corner of Hay street?
Yes, sir. You were there when called ? Yes,
sir. I was called by the Sheriff. What is the
name of tho Sheriff? Hardie. Did you go ?
I did, sir,—I weLt and examined the wound.
What did you find was the condition of the boy ?
Dying, sir, he was insensible, and upon examina-
tmn I found a bullet hole in the back of his head
on the left side about two inches from his ear
about upon a line with the top of his ear. How
far did the builet penetrate? It did not go out,
sir it went into the brain. I pr< bed it but a shoit
distance, he died during the time I was examining
him—he did not breathe more than two or three
times while I was examining the wound.
Was that wound the cause of his death 1
Yes. sir. He had no other injury upon him ;
I examined the body7; no other injury than the
bullet hole in the lfead. Did you find the bul-
let at all? No sir. How far did you insert
the probe? Not far, probably two inches, it
was all soft in the brain, I suppose it bad prob-
ably lodged against the skull on the opposite
side. It didn't have momentum enough to go
through. Did you see any of these prisoners
at the bar, there that day ? I don't recollect
that 1 did. I simply examined the wound, and
the Sheriff spoke of calling a jury of inquest or
something, and I went off', Tnere was a large
number of persons there. Did you hear any
pistol shoot ? I heard it from where I was
standing. Were yon at Hindale's store when
you heard the pistol? Yes sir. Had you
been at the market house at all that day ? I
suppose I had several times, passing backwards
and forwards; my office is in market square.
What time of day was it when you were called ?
It was about four o'clock in the afternoon.
What time was it when you heard the pistol
shoot ? It was immediately before that. Had
you noticed any crowd at the market house ? I
don't think I had, prior to that time I was
aware of the trial going on. Did I understand
you to say there was nothing unusual in the
crowd that attracted your attention that day ?
No sir, not before the time of the occurrence.
PROCEEDINGS OF A MILITARY COMMISSION,
Do you know anything further of the deceased
at all ? No sir. Is there any light at all you
ean throw upon the subject? No sir; lean-
not say that I know of anything; the first I knew
of it was the excitement at the time of the firing
of the pistol, and I still didn't go up until the
Sheriff saw me standing there, and he called me
and I went, and he asked me to examine the
man. You did so? Yes sir. Could you
tell what the calibre of the bullet was ? Well,
sir, it was not a very large bullet; I could insert
nay little finger in it up to the nail; I suppose
about the size of an ordinary repeater, the bullet
of an ordinary repeater.
Cross examination, hy the Counsel for the ac-
cused:
1 understand you to say that you didn't ob-
serve any unusual crowd there that day? No
sir, I think not, before the occurrence. Nor
did you observe anything unusual, of any sort,
about the market house ? No sir, I didn't
observe, anything. That you had been at the
market house several times during the course of
the day ? Yes sir, I presume I had; I don't re-
collect now, because I am in practice constantly,
and would lie out of town all day sometimes; I
don't know whether I was out of town that day
or not. Hinsdale's place is on the West side?
Yes sir. Your office is on which side of the-
market house? North-east.' You say the ball
had made an opening that you could put
your little finger in, up to your nail? Yes
air. That was all? Yes sir. It Avas
through the skull bone, of course ? Yes
sir, a smooth bole apparently without aDy
fracture, furthur than the size of the bullet. And
the ball hadn't pierced the skull on the other side?
I did not discover it sir, it was not visible. You
d dri't see any of the prisoners there that day ? I
don't recollect seeing any one in particular; there
were officers there, and a good many people,
black and white. How much of a crowd do
you suppose ? I don't know sir, a hundred
probably. All colors, sir ? Yes, sir,^of every
description. More of one than another color t
I don't know; perhaps more white persons than
black. How long before that had you been at
the market house ? Well I was between those
drug stores several times; I don't know that I was
in the market house before. Were you past the
market house while Bebee was being tried ? Yes,
sir. I think I passed the west end of the market
house, from Mr. Smith's Drug store to Mr. Hins-
dale s; I passed immediately by the market hou-e
of course. Tne .west side 1 Yes, sir, this
occurrence took place on the east side of the mar-
ket house, and if there had been a large crowd
there .1 don't know that I could have seen it unless
it had been very large. How long is the market
house from east to west? I don't know, sir.
eighty or one hundred feet I suppose, I believe it
is square. You speak of this pistol that was
used, as one of ordinary size—an ordinary repea-
ter ? Well that is my idea of it, that is what I
think it was. What is your idea of an ordinary
repeater? The five shooter as they are called;
I nave been accu«tomed to seeing them a good
deal, I suppose the ball was about that size—that
is as near as I can Judge. About what size pis-
tol would it be ? Well, from ten inches to a foot
in length I suppose. Would it be a navy revolv-
er? I think they are longer sir, carry a larger
ball than tb at. It could not be such a one ? I
don't think the ball was as large, sir,
Re-dire'ct examination, by the Counsel for the
prosecution:
Are you very familiar with arms ? No, sir.
Can yon pronounce witheertainty upon the calibre
of a gun or piHtol from the bullet ? I dont think
I can.
Robert W. Hardie, a witness for the prosecu-
tion, having been first duly sworn, testified as fol-
lows;-
Examined by the Counsel for the prosecution, .
What is your name ? Robert W. Hardie, sir.
Where do you reside ? In Fayetteviile, North
Carolina. What, is your occuration S Sheriff
of Cumberland county, sir. Are you acquainted
with Arch y Bee bee? I was sir. When did
you see him last alive ? On the 11 th of Februa-
ry. Give an account of all that happened that
day from the time you first saw him in the day,
until you last saw him 1 At 3 o'clock—within a
few minutes ot 3 o'clock, upon the 11th of Februa-
ry, in accordance with my orders, I went to the
guard house in Fayetteviile. I had no jail, my jail
having been burned. I went to the guard house
or started to the guard house, I had ordered the
Town police to meet me there precisely at 3 o'clock,
and I got about seventy five yards from the guard
house, when I saw them at the door. 1 gave
them a sign, and they went in and brought Archy
Beebee out. Who are the town police you
speak of that were there.? My Deputy, a man
by the name of Wemyss, Bond, the town Consta-
bie; Sam Faircloth, the chief of the night police;
George Hornrind. a man by the name of Brown,
Daniel McGuire; and I am not certain as to the
other, I think he was sick. What occurred then 1
They came out.: I went in front of them, to the
Magistrates' room, which is in the town hall, over
the market. How far is the guard house from
the market house? Between three fifty and
four-hundred feet Was there any disturbance
in your passage from the guard house to the
market hou-<e ? |No sir, there was some crowd
1 passed through the crowd at the head of the
prisoner. We went up into the market house.
You say there was some crowd? Yes, sir.
How many in that crowd do you suppose? I
suppose there were 30 or 40. Did ;you notice
any one in the crowd? No, sir, I just walked
right through them. Can'tyou mention asingla
individual in that crowd ? I don't think I
could, sir. I didn't pay attention to any individual
sir. Is it imp ssible to name a single man who
wa3 in that crowd ? I don't i-ecollect a single
individual that was there. I passed right through
the crowd. \\ as there anything said to you ?
Not a word. Anything said to the prisoner?
Not a word, sir. We passed through the crowd,
and went up stairs in the market house. Who
went up with you, sir ? All the police. I was
in front of the prisoner, the others behind the
prisoner, Mr. Wemyss and Mr. Faircloth having
hold of the prisoner, and the others behind them,
and I immediately in front of the prisoner. When
we got there Duncan G. McRae asked . We
don't want to hear what any one said. Who did
you find in the town hall ? I found Duncan G.
McRae, James W. Strange, Joseph Arey, John
W. Lett, French Strange, the County Solicitor,
Thomas H. Massey, I think was all at that time.
You think those were all that time? Yes, sir.
What happened after you got up stairs ? I then
went after W. H. Horn, Counsel for the prisoner,
and tnenat the request of Archy Beebee, I went
arier Dennis Hogans, his uncle; but first let me say
Miss Massey and her mother were there. Were
they in the room when you went up with the priso-
ner 1 Either then or after I returned from after
Captain Horn, I cannot tell which ; I think when
I returned from Captain Horn. How long were
you absent ? But a very few minutes, sir. Cap-
tain Horn's office was not more than a hundred
yards. How far did you have to go for Dennis
Hogans? It occupied some littie time to find
. CONVENED' AT RALEIHH, NORTH CAROLINA.
23
him ; he was not far ofl; he was in the market
house, and I had to go to the upper end to find
him. Which d® you fall the upper end ? The
west end. Did you notice whether the crowd
was larger.or smaller when you went down stairs ?
It seemed to be about the same. Did you notice
any disturbance? Not a particle. Who- did
you find up stairs when you returned ? I found
Miss Massey and her mother. Were any persons
gt>oe ? They were all there that I left there,
and an old woman by the name of Dely Stewart, a
colored woman, and an old man by the name of
Matthew Morgan. What was th" object of that
meeting? The object of that meeting was a
preliminary examination for an assault. You
must not tell what he did ; it was a preliminary
examination for some offence that was allegd against
him? -Yes, sir. Did the examination take place
upstairs? Yes, sir. Who-was the presiding
magistrate? Duncan G. McRae. Did any
one assist him? Yes sir, Joseph Arey, James
W. Strange and John W Lett. I want you, as
nearly as you can, to describe accurately the posi-
tion of the parties in that room whil° this exami-
nation was going on, and give a description of the
room what is h • 6 ze of the room? I don't
know that I can do that exactly; the room is
probably 30 or 40 feet square. *Oow many win-
dows in each end, the east to begin with. Two
and a door. Does the door open to the stairs ?
No sir, it opens to the main building. The build-
ing is a two story building. There are wings east
and west, one story. This door leads out to the
top of the wing. The top of the wing is like a
floor, inclined enough to allow -water to run off.
How' wide is the roof? It is about 25 feet, I
should say. Is there any railing or molding or
anything around it ? There is a balustrade
around it two and a half feet high, probably.
As I understand you there are two windows and a
door that open on that? Yes, sir. Was that
door opened or closed? I presume it was closed;
it was a cold day. You can't say? No sir,
I didn't notice it. The north and south side,
are there any windows on them ? Yes sir, four
on each side. On the west end ? The west
end has a door and window exactly corresponding
with the east end. One door and one window ?
One door and two windows. The balcony is
nothing but the roof of the -first story? Yes,
sir. And it is about 25 feet wide ? Y es, sir.
The inside of this room is how many feet square ?
I suppose 30 or 40 feet. Is there any subdiyi-
sion of the floor up there? ' All in one room sir.
Where the steps come up from the market house,
how are you facing when you come through the
door, north, south, east, or west? When you
go up and get to the head of the stairs, you would
be facing north. When you open the door and
enter the room you would be facing north ? Yes
sir. Taking "the east front, of that room, how
far towards the middle of the east front does that
door fall ? It is right in the center. You
land then, about the center of the east end of the
room? Yes, sir When you came back and
entered at that door where was Major McRae sit
ting ? He was sitting at his table, upon the west
end of the room sir. Is that table in the middle
of the west end ? It is near the stow, sir.
Where is the store? In the north west corntr,—
no—it is in the south west corner. The stove is
in the southwest corner, and this table is near the
stove? Yes, sir. Was he sitting behind the
table, near the stove. Where was the prisoner
Eeebee seated that day? There was—I don't
know what it was built tor—but it makes a seat,—
something like a bench or a double bench, one
facing one way, and one another, leebee was
sitting there. Was he facing the committing
magistrate? The committing magistrate was
to his right sir. It was a sort of an armed
settee? No sir, just like two benches put
together without backs. Major McRae was
seated you say at that table,—vvas^any one seated
there with him ? The others w-re seated around
him. Who was? James W. Strange, Mr.
Arey and Mr. Lett;—they were sitting a-ound as
near the stove as they could and be comfortable.
How long did the examinaiion last after you went
up the second time ? I suppose it lasted some-
thing like half an hour, sir. Were you ordered
to take the prisoner back? ' Yes, sir. Did you
feel any apprehension about his safety? I did
not, sir. You had no reason to apprehend dan-
ger ? No-, sir. I oelieved I had sufficient force
to protect the prisoner and prevent a rescue. Dt»*
you be'ieve now if you had had sufficient force you
could have protected him ? No sir; I could not
guard against the pistol shot, sir. Who went
out of the door first to go down stairs ? Mis3
Massey and her mother, and Mr. Bond, I think
went with them. Israel Bond ? Yes sir, the
town constable. Did they go out together?—
Yes sir, he went to accompany them to the car-
riage. They went out together. Did you go
out,at that time ? No, sir. They left you there?
Yes, sir. Did they leave all the others there?
Yes, sir. How long after thev had gone out be-
fore some one else left the room ? I think I was
next. No one else had left before you left? Not
that I noticed. Who left yvith you ? The
prisoner was ordered in my custody. I started
with him. Mr. Wemyss was on his right sider
Mr. Bond had returned before I started. How
long was his absence? Not more than a minute
or two; just time to walk down apparently and
come baek. Mr. Wemyss was on his right side;.
Mr. Faircloth upon his left; I was immediately in
front, and the other police were in the rear. I
came down stairs in that position. Describe
those positioas again. Mr. Wemyss on his right
with his thumb fastened by a twitch, Mr. Fair--
cloth locked arm with him on the left; I was ia
front, and the balance, of the police were behind
Mm. We came down stairs in that way, and
when we got down, I saw there was some crowd,
and I said 'Gentlemen make way!" Before
you got down stairs did you notice any crowd 2
No, sir, I could not see. Are there not two flights
of stairs.—a pair of stairs, a landiog and then an-
other pair ? Yes, sir,, but you can't see from
that landing. After you go out of the door on
the landing, how many steps is it down to the
floor of the market house ? You. go down some
seven or eight steps and turn. There is a door
right there, where there was a policeman station^
ed ; and then there are three or four rickety steps
further down to the floor. When yon got to the
bottom of that last step, on the floor of the market
house, which way were you lacing ? East, sir.
How many steps would it take you, from the *ot-
torn of the steps, to come plumb against the wall
of the market house, in a straight line? It is
probably four steps; twelve or lourteen feet.
When you opened that door could you see the
crowd ? One step, and I could- As soon as
youstepped-through the door? Yes sir, then I
could. Was the crowd any larger than when
you went up stairs ? I think not sir. D.d
you pause a moment when you got on that step ?
I didn't pause there, I went on to the floor of the
market,—a brick floor. Y ou didn't pause till you
got to the brick floor ? No sir, when I got there
I noticed the others were not fallowing me as close
as desired, and I turned around and asked them
what was the matter, and in a moment they came
24
PROCEEDINGS OF A MILITARY COMMISSION,
up. Yon started down the stairs, you and that
party ? I was just a step ahead of them. When
you got to the first landing you were to-
gether ? Yes, sir. But you noticed when
you got on the floor of the market house that
they had paused on the first landing? Yes, sir.
That was the fiist time that you had noticed
it? Yes. sir. Did you notice any reason for
tno panic? No, sir Y>>u didn't see any-
thing ? No. sir. Do you know now what caused
it ? I do not sir. Did the prisoner in your pres
ence show any unwillingness to come out ot that
door ? Not in my presence Did he manif st
any trepidation in facing the crowd? He was
much alarm d up stair.'-—,at least T judged so from
his looks. Was there any outcry in tnatcrowd ?
Not a word up to that moment. _ You told the
officers, to come on? Yes, sir. They'did
come on ? Y-s, sir. What happened then?
To get out of the maiftet house on to the pave
ment, to start for the guard house; we have to go
under an arch on the eastern side. Tiiey were
close behind n.e, Wemyss and the prisoner, as I
descrife.-dthem : I heard some one eay, "Damn
him, give him up, I demand him " The party
was hid from me on accosnt of the brick wad of
this arch : I instantly turned and saw a hand, ap
parently trying to catch t e prisoner. Of cou'se
as au officer, your attention was attracted when
you heard some one demand your prisoner?—Yes,
sir. You instantly turned ? I did, sir. And
ns you turned you saw this hand? Yes, sir.
Whose hand was it, Mr. Hardie? I wotild not
eay as a fixed fact, the best impression that I had,
it was Mr. Powers'. Have you a decided impres-
eion? Yes, sir, a decided impression, though I
don't know the fact How soon did you see Mr.
Powers after you had caught his hand ? Im-
mediately I caught him and pushed him off. Did
you look in that direction ? My attention, my
'whole attention—was turned to the hoy- I said
" stand back, the prisoner is in my custody and I
"will protect him." 1 said " men use your clubs."
I saw another hand from behind him. M'. Bond
'instantly caught him, whoever it was. Da you
knov wlioii was? I do not, sir. Hive you
any decided impression ? No, I have not
You heard the voice that cried out " we demand
the prisoner ? Yes, sir. Did you know that
voice? I think it was Mr. Powers. You
know him well ? I am not very well acquainted
with him. Mr. Hardie, it is a painful <,ut-y f.,r
you to testify in this case? No, sir, I am here
to tell the truth, the whole truth, and nothing but
the truth, and I am going to doit. You
say -you aie familiar with Powers voice?
I am tolerab>y so, but it was not his
voice so much, it was the appearance of
the man, being pox-rnarked, that at racted my at-
tention. Did > ou notice the p<<x-marks? Yes
I noticed the pox-marks when I caught him. on
the side of ttie face. You think you recognized
his voice? I.thought it was his, I Would not be
positive about his voice. I am not sufficiently
familiar with his voice to speak of that positively.
The chief ground upon which you based vour
opinion w«s the fact of his being pox-marked?
Yes, sir. Do you see the man here? Yes.
sir. You didn't see w ho made the second attack.
No, sir, I saw Mr. Bond got him. "I thi k he
went down with him ; and at that moment there
was an attack in front. Do you know who it
was. I think it was Monk. I heard very dis-
tinctly the blow. The blow struck at the pris-
oner ? At the man who made the attack on him
in front. You think it was Monk—did you see
him? I think I saw him. You thought you
aaw him—is that your impression now? Yes,
s'r. Is it a decided impression? Yes, sir.
Did he have any weapon? I did not see any,
sir. Did you see any weapons in the hand of
any one? I did not, sir. Had vou seen,
from the time you left the door on the steps,
to the time we are speaking of now,
any newspapers? No, sir." not up to that
time ? As I now understand it, y <u have got
about to the point where you turned out of ihe
arch? Yes, sir. Wher« were you then?
On the pavetn- nt, just turning They had made a
circle around us, and I then started. Was the
crowd pressing on you ? My o der to use the
clubs had relieved the press , a little. We then
started facing south The walk seemed to be ap-
parently clear. Was that the direction toward
the guard house? Yes, sir, due south. Had
you got outsjde of tbe point where tbemaiket
house reaches to ? No, sir, we never got to the
coiner of the market; we got tour or five steps
when Beebee made a tremendous effort to escape,
and from some cause they all cameoown together,
Wemyss, the prisoner, and Fai cloth. What
do you mean by a tremendous effort to escape ?
What was be doing? He used all h s strength,
jumped, jerked and bounded to get away. Did
he say anything? Not a word that I heard.
He seemed to (Jb very much alarmed. Was the
crowd noisy or still ? There was not much
noise. There were exclamations of "Give bun up If
Give him up!" " I demand him!" I saw no great
outburst. Do you know how many times you
heard that cry ? I think I heard it twice, sir.
Well, sir, he made this bouDd or effort to escape.
Were you afraid he would get away? I was
a raid he would get away, and I was fearful they
would kill him. If he got away I was feat ful, after
the effort that had been made, that they would kill
him. Was lie trying to escape from you or the
crowd ? He was trying to escape from the officers;
what his object was, ofcourse 1 could not tell. It
was during the midst of this uproar around him?
Yes, sir. How many times had he been as-
saulted ; how many rushes had been made at him ?
It was all in one rush. There were three that I
knew of certain, who rushed at him. How
long was it—how many moments from the time
that you got to the foot of the steps to the time
when he made this effort to escape; I want to
know whether it whs all simultaneous. It was
as quick as could be done. Mr. Hardie, did
you see any fire-arms in the Crowd that day, up to
that time?* I did not, sir. Did you see any
knife fall in the crowd? I did not see it, I
heard it:—I heard a metal fall. Was that the
time this effort happened, or afterwards ? Im-
mediately before, sir. Immediately before that
you heard a strike corresponding to the clash of
a knife? Yes, sir, and I distinctly heard the
striking of a club, and I heard a man say, " damn
it, they have broke my arm, I believe." You
beard the striking of a club, the man's exelama-
tioi , and the fall of a knife? Yes, sir. Where
is that knife? I never saw it, sir. Who pick-
cd it up that day. I dont know, I ODly know
from hearsay, sir. Have you never seen it
since ? I never have, sir. Did you see it that
day, sir? No, sir, I saw no weapons in the
hands of any one, sir. You only know from
hearsay, what has become of the knife; do yon
know from hearsay what has become of it? I
only heard Don't tell me; I merely wanted
to know whether you have ai y knowledge where
it can be found ? No, sir. What happened
after this effort of Beebee to escape? When
they all fell, I was fearful he would escape; I step-
ped down and caught him by the back of the col-
CONVENED AT RALEIGH, NORTH CAROLINA.
25
lar,; they all raised up together. He had a
struggle and a fall, and the constable and officers
went'down with him? Yes, sir. Did you
notice whether he had on any comforter that day ?
He had something round his neck. Did you
have him by that? No, sir, I had him behind
the neck. Did any one have him in front at
that time? No, sir. Were you standing be-
hind him? I was standing behind him, sir.
You raised him up, did you? .1 stooped down
to assist to raise him, and as he got up straight,
a pistol or a gun was fired, from immediately
behind him, as I supp osed; the ball passed through
my hair, and entered his headjustovermyknuck-
les. Did he fall instantly ? He didn't fall, he
sank. Make any outcry ? No, sir, only a
groan. Did he die immediately ? There was
a gentleman passing not far off, I hollored to liim
to run to Mr. Hinsdale's, and a physician there,
Dr. McDuffie, heard my voice, and came imme-
diately; I said, " Doctor can any thing.be done to
him;" he asked me for some water, I turned
around to the stand of a woman by the name of
Becky Jenkins, and asked her for some water, I
handed ittoDr McDuffie'; at that moment 1 saw
Dr. Hague go by; I called him; he came in, and
they both said he would die in a minute. Did
he die from the pistol shot? I suppose so.
He received no other wound that you are aware
of? No, sir.* Did you see who shot that
pistol ? I did not, sir; it was fired behind me.
You are confident ? Yes, sir. Can you de-
scribe the relative positions of the prisoner and
Mr. Wemyss, at the time the pistol was fired ?
The prisoner was facing due south, on the pave-
ment, Mr. Wemyss was upon his right hand, Mr.
Faireloth was upon his left; I was behind him;
I say behind him, I dont know that it was exactly
behind him, I may have been covering Mr. Wem-
yss partly; partly behind the prisoner and partly
behind Wemyss. What was your reason for
thinking the bullet passed through your hair?
It produced a sensation that I have never expe-
rienced before, I supposed I was shot, and put my
haud to my head to see if I was shot; it produced
a burning about my ear. Was any hair cut?
There was short hair there, I could pull it out.
Could you see whepe the bullet had cut a lock
away ? No sir, I could only judge from the short
hair coming out. Have you ever been un-
der fire in battle ? No sir. Have you ever
had a pistol shot at you that you are aware of?
No sir. Have you ever had a pistol, fired very
close to your ear? I have never had a pistol,
I have had a gun fired immediately at my ear.
Did it produce the same sensation ? No sir.
Did you look around to see where the noise came
from ? 1 I did not sir, not for an instant. It was
ah instant before I looked round, and I saw one or
two persons coming to me, or I supposed they were
coming to me. How far was the prisoner from
the edge of the market house when he was shot ?
The sidewalk I suppose to be about eight feet wide
sir; I suppose he was five feet from the market
house wall. About three feet from the edge of
the sidewalk? Yes, sir. And I understand
you, nearly at the corner ? Very near the cor-
xi er. The bullet came from his rear? Yes,
sir. And struck him just behind the left ear ?
Yes sir, within two inches of his left ear, sir.
Which way was his face turned, due south ? I
think it was; in fact I know it was. Did you
look around in the direction the shot seemed to
come from? Yes sir. Who did you see?
I didn't look all the way round, I only saw Mr.
Phillips making his way through ,|he crowd ; and
my attention was immediately attracted by d noise
in front, and I looked around and saw Mr. James
L. Nixon, just at that moment catch Monk, and af-
ter a good deal of shuffling carry him off. Was
Mr. Phillips the only person you saw that you re-
cognized ? He was the only one, it was only an
instant, I just turned my head, my attention was
attracted in front of me. Phillips was the only
person ? Tbe only one I remember. You
have thought of it well ? Yes sir. I noticed
him from the fact of his coming through the crowd
—making his way up there through the crowd.
There is no doubt that the pistol was shot at] that
time? None in the world. The man was
killed, and fell at that time? No doubt about
that sir. You. don't know who shot it ? I do
not, sir. You didn't see any one with weapons
at that time? I did not, sir. Did you see
any of these prisoners at the bar. about that time?
I only saw Monk in front of me, Nixon taking him
off. Had you seen Captain Tolar that day at
all ? No. sir. Did you see many after the
firing? I saw a great many come up, to where
Beebee was. Did you see Captain Tolar then ?
I never saw Captain Tolar.
Cross examination by the Counsel for the ac-
cused.
Ma. Haedie, when you brought the prisoner
from the guard house, you say there was a crowd
about the market house? Yes, sir. Where
was that crowd collected, out on the pavement or
under the market house ? Most of them were
under the market honse. Was the crowd so
large as to attract your attention particulai ly ?
I had often seen them there larger. Do you know
whether it is usual for crowds to collect there
as long as that, when trials are going on of any
interest, in the market house ? I have often
seen it, sir. You have often seen it? Yes
sir. Did I understand you to say that that
crowd appeared to be quiet and orderly ? Per-
fectly so, sir. There was nothing in the de-
meauor of the crowd that aroused or excited your
suspicions? None in the least. You went
up into the market house—and I will see wheth-
er I understand you—you went up into the mar -
ket house, entering by the eastern arch? Yes
sir. What is the distance from the main eas-
tei;n arch, to the foot ol the stairs, leading up in-
to the Court rootn? Weil sir, I suopose it is
ten or twelve feet. As the stairs rise from the
floor or pavement of the market house, in what
direction do they first run? As they go up
they run due west. IIow many • steps do they
run west before they make a turn? About
five sir. After you have gone up those five steps,
and before you have made a turn, is the door
there? Yes sir. That, is the door? Yes
sir. You then make a turn, in wThat direction
would the steps run, after you make that turn ?
North sir. Due north ? Due north sir. Do
the stairs run up close beside the eastern wall ?
Yes sir. And when you enter the room up
stairs, from the stair steps, you are close beside
the eastern wall, and neai that door-which opens
out upon what you call a balcony? Yes sir,
you are right at it. That is upon your right
hand as you go to the head of the stairs ? Yes
sir. Is that door which opens out upon the
balcony, on a level with the floor of the Court
room? No sir, you go up about two steps.
Where did I understand you to say the table was
that was used by the justice ? The table was
at the west end near the stove, the'stove is
in the south west corner of the Court room.
And the table is near the west end ? Yes, sir.
What is the distance between the west side of tbo
table, and the western wall of the market house,
or what was the distance on that day? Well
sir, I stoppage six or eight feet. Was Mr. McRtte
PROCEEDINGS OF A MILITARY COMMISSION,
•and his associate justices on the East side, or the
West side of the table? They were on the west
side. So that they were between the table and
the western walltof the market house? Yes,
Bir. The distanee being about six or seven feet ?
Yes, sir. Was Major McRae sitting down when
you got there ? Yes, sir, he was sitting at the
table. Did he remain sitting during the whole
time you were there ? Yes, sir, taking down the
evidence. I understood you to say there were
no persons there present except the prisoner, the
witnesses, the justices, yourself and the members
of the police force, the counsel for the accused,
the county solicitor, and uncle of the prisoner, Den-
nis Hogans, and the grandfather of the young
lady upon whom the assault is said to have been
made. I since recollect Robert Mitchell was
there, who married an aunt of Miss Massey. And
then I understand you to say when you first got up
there, thatneither Mr. Horn, the Counsel for the
accused, nor Dennis Hogans, protector of the ac-
eused were there.—You went down first for Mr.
Horn? Yes, sir. When jrou went down did
you leave Mr. McRae still sitting in the position
that he occupied when you went up ? Yes, sir.
What was he doing when you went up ? He
was writing. When you went down with Mr.
Hardie, after Mr. Horn, did the crowd appear to
have grown during the time, or was it about the
same size ?- About the same I think. Had
the crowd maintained its position? They
were spread out pretty much over the market
house. They were spread generally out, I
understand you to say? Yes sir. Did you
notice anything unusual in the crowd at that
time? No sir. No whispering ? No sir.
Was there any apparent excitement among the
crowd at that time? Nothing that I saw.
How long were you gone when you went after
Captain Horn ? I was gone three or four min-
. utes. . When you returned on your way back
did the crowd appear to be any larger? No
sir. Did there then appear to be any excite-
ment? Nothing that I saw, sir. When you
went back up into the market house did Mr.
Horn go up with you ? I think he did, sir.
. What was Mr. McRae doing then ? He was at
the table, sir. And in his chair ? Yes sir.
Busy with his papers ? Yes, sir. How long
did you remain there, until you went down after
Dennis Hogans? Only a moment. When
you left there that time did you leave McRae still
in his place writing ? Yes sir. When you got
down that time did you notice any difference in
the crowd, from what you observed on the for-
mer occasions ? No sir, I did not. How
long were you there amongst the crowd looking
for Dennis Hogans ? I walked through and
. asked a colored man where he was, and he told
• me he was at the North-end of the market house,
I walked there directly and looked and finally
saw him and called him. Did he go up with
you ? He went up with me. When you re-
turned from the crowd at that time was it any
larger? No sir. Was there any difference in
the state of feeling prevailing in the crowd ?
None sir. When you got back into the coui t
room that time, where was Mr. McRae ? He
was sitting in the same position. How long
did that investigation last 1 I suppose about
half an hour. During the time that that in-
.vestigation was going on, did Mr. McRae occu-
py the same position ? Yes sir. He never left
his seat? No sir. I understand you to say
when you started down, the order of procession
was, yourself in front, the prisoner next, attended
on the right by Mr. Wemyss, who had a thumb
twitch around his right thumb; that Eaircloth,
a member of the town policej had his right arm
■locked in the left arm of the deceased, that the
,town constable and the other members erf the
^police force that you have stated, were immedi-
diately behind, all around with their clubs?
Yes sir. That you got down to the landing,
and there was a policemen stationed at the door ?
Yes, sir. That you had the door opened, and
you went out in front—the same order of process-
ion ? Yes, sir. And you noticed nothing un-
usual until you had got u pon the bottom step, or
upon the floor of the market ? I didn't see any
thing unusual until I was coming out of the arch.
You,got to the floor of the market, and then
thought the party was not following you as close-
ly as they should follow you, and you looked back
and saw them, where ? They were just in the
inside of the door. Were they then visible to
the crowd below ? No, sir. How far were
you, Mr. Hardie, from a bench that runs on the
left of that stall known as Becky Ben's stall?
I could reach it. I ask you if at that time any
one leaped upon that bench ? No, sir. Did
you hear an exclamation of " Gome on, boys," or
anything like it ? I heard nothing of that
sort. Could anything of that kind have oc-
curred, a man leaping upon that bench and ex-
claiming "come on, bovs," in a tone of voice loud
enough to be heard by the crowd, without you
hearing it? I don't think there could. Don't
you feel certain it could not? Yes, sir. I
think I understand you to say that directly after-
wards the party with the prisoner came down, you
still continued in front of them ? Yes, sir.
That you passed on until the prisoner had got near-
ly out of the eastern arch and upon the pavement;
that at that time you were being obstructed by
the brick wall, a hand was thrown out to grasp
the prisoner? My attention was attracted by
the exclamation. Just give me that exclama-
tion, if you please, precisely as it was.—The ex-
clamation was, " Damn him, give him up ; I de-
mand him." Not" We demand ?" I think it
was "I;" I will not be positive about that. " 1
demand him?" Yes, sir. Well, was it about
this same time that a hand was thrust out to grab
hipi, the prisoner ? As I turned, then I saw the
hand and caught it. Did you see the man's face
at that time? I saw it as I turned. Was there
anything in that hand ? I didn't see anything
in the hand. You saw no knife? No, sir.
It seemed to be a grab at the deceased ? That
is what I supposed it was at the time. I under-
stand you to say, Mr. Hardie, that it is your best
impression that that was Mr. Powers? Yes,
my best impression. Did I understand you to
say that impression was produced upon your mind
merely by the fact of his having a pox-marked face ?
It was a pox marked face, and I think I knew Mr.
Powers. Is there any room for your being
mistaken as to that ? 1 must say that my best
impression is that it was Mr. Powers. And that
impression was made upon you mainly by the fact
that the man had a pox-marked face? Yes sir,
and my knowledge of him. Probably but few per-
sons in my county, I am less acquainted with than
Mr. Powers. I have seen him bat rarely, and
never had any official connection with him in any
way. You said something about the voice, are
you sufficiently well acquainted with the voice to
designate him by it? No sir, I don't think I
am. Then the voice made no impression upon
you ? It made a slight impression; and it went
only in a measure to confirm me in the view that I
had, that it was Mr. Powers. From the casual
glance, and the fact of his being pox marked that
made an imoression upon you that it was Mr.
Powers? Yes sir, I don't swear positive. It
-CONVENED AT RALEIGH, NORTH CAROLINA.
27
is my best impression, it was Mr. Powers. You
say first a grab, with an expression, "I demand
him," then you ordered the police to beat them
back, with their clubs, which they did, at once?
Yes, sir. And then at that instant another grab
was made ? Yes sir, and I thought Mr. Bond
and the person came down together, though I don't
know, they appeared to go down. Bond was or-
dered to use his club, ana I hare no doubt he did
it. And then a third grab you say was made ?
Yes sir, in front of him. I simply saw a man.
Who do you think it was ? I think it was Monk ?
Did you see anything in his hands? No, sir.
Are you certain that was Monk? No sir: my
best impression was that it was Monk. Why
did you think so ? From his size and his ap-
pearance. I only saw him between the shoulders
of the party. "I understand you to say that you
don't swear it was Monk ? No, sir j only my
best impression; not as a positive fact. About
that time you say the crowd had been beaten back?
Yes, sir. It gave way so as to leave an open
space before the prisoner, and the party conduct-
ing him to the guard house? Yes, sir. Do
you remember whether there was any body at all
in the front of the prisoner and the party conduct-
ing him to the guard house ? At that time I
don't think there was, sir; When I got straight
I looked across the street to Colonel ©raughon's
store. The door was open, and his nephew, who
was acting as clerk, was standing in the door, and
I thought if I could get in there with him he would
be safe. I was then very much alarmed for the
safety of the prisoner. About that time then
the struggle you described occurred ? Yes, sir.
Up to that time, I understand you to say, you
were still in front ? Up to the time the first de-
mand was made I was in front; when 1 caught
his hand I then got in the rear, because there was
a crowd much larger there. So at the time you
first caught the hand which you thought was the
hand of Mr. Powers, up to that time you had been
in front. Then you shifted your position and
.got in the rear ? Yes, sir ; they passed around
me. Then this struggle occurred between the
prisoner and Mr. Wemyss and Mr. Faircloth, and
they all three went down together ? Yes, sir.
You think when they went down together the
prisoner was about five feet from the eastern wall
©f the market house, and about three feet from the
outer edge of the pavement ? Yes, sir. After
they had fallen, I understand you to say that you
reached down, and with your hand you caught
him in the back of the neck, through the collar of
the coat and shirt ? The collar of his coat; I
don't recollect about his shirt, I know I had him
by bis jacket—a blue jacket—no, a gray jacket.
And you assisted in lilting him up, ana had got
him to an upright position before he was s hot ?
Yes, sir, standing straight up. What was the
height of the prisoner as compared with your own
height ? He was about six feet tall—fully six
feet. Is the pavement at that part of it elevated
above the surrounding country? Yes, sir.
And he raised right up ? Yes, sir. You still
retained your hold on the collar? .Yes, sir.
At that time you think you were direct y behind
the prisoner, or it anything a little to the right ?
Yes, sir, probably a little to the right, covering
him and Mr. Wemyss probably. I suppose that
one half ot my body was opposite to his body,
and, one half covering Mr. Wemyss, for We-
myss was close to him. Have you any doubt
but what you were in that position ? I have
none whatever—that was the position that I occu
Eied. About the time you got him straight you
eard the report of a firearm of some kind ? Yes,
*ir. And you thought you wereabot yourself?
Yes, sir. That you put up your hand and you
felt something like a bullet pass there ? I felt a
stinging sensation. And you put up your hand
and you found that your hair had been
cut,? I put my hand up to see if there was
any blood, and then I felt the hair. I could pull
out the short hair. Did you find anything ou
the back of your neck ? Some gentleman passed
back of me and remarked— Stop ! you must
not say what he remarked. I put my .hand up
and it was a little blaek. You found your hand
was a little colored, and this color came otf of your
neck ? Yes, sir. What was that black pro-
dueed by ? I supposed it was from powder.
Have you any doubt about that ? I was satisfi-
ed at the time', that it was the smoke of powder.
And that was back of your neck under your ear?
Yes, sir. I understand you to say sir, that you
looked hack, after the pistol was fired? 1
turned my head, it was an instant before I
was satisfied I was not shot. Were there a
great many men directly behind you, when you
looked back ? I didn't look all the way back,
I didn't get my head around, before my attention
was attracted in front. in that casual glance
you gave behind, could you tell whether there
were many men in your rear ? I could not sir.
Did you turn to the left or the right? To
the left sir. Could you tell whether there
were many men to your left and rear ? There
was some crowd standing there. Mr, Phillips was
making an effort to get to me. Were they near
you ? They w ere from three to five feet off.
Were there many of them? A dozen or fifteen
probably. Were they standing still ? They
seemed to be perfectly stock still. It seemed to
me that everything was over in an instant. Did
you notice whether they were white men or black
men? They were both. And the only man
you recognized was Mr. Phillips ? Yes, sir, it
was only a glance for an instant, and immediately
my attention was called back to the front. And
Phillips was parting the crowd to get t,o where you
were ? Yes, sir. I think I understood you to
say you didn't see a pistol in the hands of any
body that day ? I did not sir. And y«u didn't
see any weapons in the hands of any body ? No,
sir. What knowledge have you of fire arms?
I have always been very fond of sporting. What
knowledge have you of small fire-arms—pistols ?
Very little indeed, sir; I have no knowledge of
fire-arms except shot guns- I think I understood
you to say it was a very cold day ? Yes, sir.
Mr. Hardie, what was that man Beebee being tried
for, at the market house ?
TheCoansel for the prosecution objected to the
question.
The Counsel for the accused said:
I think we are entitled to it in this view—If there
had been a trial for a small misdemeanor the
crowd would not naturally gather. There was a
large crowd—we say they gathered under a natu-
ral impulse of curiosity, which impulse grew out
of the fact that it was a grave offense, and not
only a grave offense but a trial of a sort that
would excite the curiosity and cause the gather-
ing of a large crowd of people.
The Counsel for the prosecution replied:
The Government objects to any such question
being asked, as totally irrelevant and impertinent
to this issue. There is but a single fact here to
be investigated, and that is whether Archy Bee-
bee came to his death by the hands of these de-
fendants, who are charged with either killing him
or being there present, aiding and abetting. We
say it is irrelevant for what Beebee was arrested, or
for what offense he had been committed, because
the Counsel cannot pretend to justify their clients
28
PROCEEDINGS OP A MILITARY COMMISSION,
fthey committed this act upon the deceased,
upon the ground that he had been guilty of any
oflense whatsoevre. He might have burned the
Capitol, he might haye ravished a thousand wo
men, he might be the veriest scoundrel that ever
disgraced the earth, and yet, he is entitled to the
protection of the law, until he be tried by the law.
It can have no possible relevency to this issue,
and its tendency, it it have any weight at all,
must be to mislead and prejudice the minds of
this Court, and surely the Court can see that the
offense that Archy Beebee committed upon that
occasion, for which he was arrested and placed
upon a preliminary examination, cannot be any
justification to the men that killed him,—it cannot
even be a palliation for their crime.
The offense that he committed cannot possibly
mitigate that crime from murder to manslaugh-
ter, and the only possible object with which evi-
dence of that character can be introduced into
such aCourtasthis,mustbe eitberto affectthefeel-
ings or prejudices of by-standers, or to act upon
the feelings of this Court, and to mislead them
from the performance of their duty,—not that it
will have that effect, but we are all mortals,subject
to imperfection; and its tendency is that way. And
therefore it is, that the law excludes Courts from
hearing it, unless they see fit to call it out them-
selves, upon their own examination.
In behalf of the Government yesterday I allow-
cd the simple statement to come out—what this
boy was committed for. I knew it was improper
at the time; but I determined to give the pris-
oners, in the painful position in which they stand,
as much benefit as could be gained, by the Court
having the knowledge of what the allegation
was against Beebee. It came out yesterday, and
further than that, the Government is not willing
to go ; nor did the prisoners have a right to in-
sist that we should go that far. We submit the
question to the decision of the Court.
The Counsel for the accused said:
The principles laid down by Colonel Haywood
on behalf of the Government, we admit as sound
principles of law. Admitting those principles of
law however; wn submit to the Court, that,
without any wish to take any benefit, from the
bystanders opinion—and we have nothing what-
ever to say about there being any bystanders
here—and without the least intention to pre-
judice the Court; we think it a material point,
among the many points surrounding this case, to
show why that crowd, had gathered there; that
they had gathered, not under any design of resis-
ting the laws, but under an impulse of natural
euriosity, whether or not, in some possible line
of defence, that may not be material, I hope the
Court will not easily decide. We think it will be
material.
The Commission was then cleared for delibera-
tion, and after some time so spent the doors were
re-opened, and the Judge Advocate announced
that the Commission sustained the objection of
the prosecution, as to the admission of the ques-
tion.
Cross examination resumed, by the Counsel for
the accused.
Mi-. Hardie, you spoke of the nervousness of
the prisoner up stairs ? Yes, sir. Was that
the first time you had noticed any trepidation
in the prisoner; after he got up stairs? I
didn't notice the prisoner particularly before.
Did I understand you to say, sir, that up to
that time no demonstration of violence had
beeu made by any parties, towards the pris-
oner, either in his sight or in his hearing?
Not that I saw nor heard, sir. Was that t-repi-
dal ion greater during the investigation or after its ;
close ? I didn't see any'change from his general
appearance he seemed to be nervous and alarmed-
Re-direct examination, by the Counsel for the
prosecution:
One question I omitted to ask in the examiaa-
tion, which does not come properly in the cross
examination.
I proposed to ask whether there was any rela-
tionsbip between Thomas Powers and Miss Mas-
sey, within your knowledge ? There is. What
is it ? Mr. Powers is her uncle,—so represented
to be. I understand you to say in the cross ex-
amination, that after you had got to the foot of
the steps in front of the prisoner, the prisoner be-
ing then on the first landing, you diduffc see any
one jump up on Becky Ben's bench, and waive
their hand? I did not sir. Did you see any
one stand on there at all ? I think there was a
colored boy standing on there, sir. I think his
name was Louis. Do you know his other name?
He used to belong to Mrs. Smith, I ion'fc know
what lie goes by. Have you seen him here as
a witness? I have seen him here in Raleigh,
Louis Smith ? Yes, sir, I think it was Louis
Smith. He was standing on Becky Ben's bench?
Yes, sir. Didn't I ask you if you recog-
nized any one in the crowd as you came off tho
steps and you said you did not ? I did not then :
I had passed the steps and I recollect seeing some
one over me and I looked up and I think it was
Louis Smith I saw. Is he the only person you
recognized in the whole crowd ? He was the
only one- . Why was your attention so distracted
that you did not see more in the crowd ? My
attention was centered on the prisoner, I had n»
other thought or feeling than simply the prisoner.
You were walking in front of the prisoner:—your
attention was absorbed with him. Yes, sir.
You noticed no other personin the crowd? No,
sir. You think if auy one had leaped up on
that bench you would have noticed them ? Yes,
sir. And your attention was so absorbed that
you can't recollect a face that was in that crowd ?
I don't recollect a face at all, sir. Did I under-
stand you to say you meant with certainty to de-
clare that the exclamation was " I demand t he
prisoner," or " we demand the prisoner.'' No,
sir, I can't say which it was for certain. My lm-
pression is it was " I demand the prisoner."
But your mind is in a state of uncertainty ? Yes,
sir. Was it a right hand that you caught hold
of when you seized that man ? I think it was
a left. Did you see his right hand? No,
sir. You saw no knife in his hand ?—
No, sir. Which hand did you have in the back
of this man's neck ? I think it was the left, sir.
I understood you in the previous examination to
say the right— 9 I think you must be mistaken.
I stooped down and caught him, I had my right
hand to use. It was your left hand? Yes,.
I thinli it was, sir. Did you have that hand on
his collar till he was shot? Yes sir. You
never let go ? I did not, sir.
Questioned by the Commission:
You say the last time you saw Archy Beehee
was on the 11th of February—February of what
year? 1867. Had you any reason to believe
there would be an attempt made by the crowd
upon the prisoner, that day? I had none,
whatever. Then why did yon order the attend-
ance of the town police? • Mr. Wemyss, one
of my assistants, came to me that morning and
told me about the arrest of Arcby. I was then
in my office. I was there till 10 o'clock, and I
went over, (my office is probably %ih& of a mile
from the market house,) Mr. Wemyss came to
me and remarked "There is more' indignation
about this affair of yesterday than I have. seep, in
CONVENED AT RALEIGH, NORTH CAROLINA.
29
this community for a long time, and I fear there
will he trouble." "Wemyss, havg you heard
any threats ?" "I have heard none, but the ex-
citement is so great, I fear there will be some
difficulty." "if you think so, I will attend the
trial myself," I said " and I will have the police
force there with me." I told him to summon
the police, and afterwards I saw the Captain
himself, and ordered him to meet meatthegaurd
house at 3 o'clock. When you heard the shot
and turned round, might not Tolar have been be-
hind you, and you not have seen him? Yes,
sir. When you heard the knife fall upon the
pavement, as you have stated you did in one
part of your testimony, who picked it up ? I
don't know, sir. Who did youhear had picked
up the knife ? Monk. Who told you who
picked up that knife ? I don't recollect that,
sir. Have you heard what disposition has
since been made of that knife ? I never heard.
Have you heard any one assert that they kept
possession of that knife, or had seen the knife
since that time ? I never heard. In whose
hands was it when you last heard ? Monk's.
The Commission then aujourned to meet on
Friday, the 26th inst., at 11 o'clock, A. M.
Raleigh, N. C., July 26, 1867, 10 A. M.
The Commission met pursuant to adjournment-
Present, all the members of the Commission, the
Judge Advocate, the counsel for the prosecution,
all the accused and their Counsel.
Yesterday's proceedings were then read and ap-
proved.
Sam Toomer, a witness for the prosecution,
having been first duly sworn, testified as follows:
Examined by the Counsel for the prosecution.
What is your name? Sam Toomer, sir.
Where do you live ? In Fayetteville at present.
Where did you live at the beginning of this year ?
Fayetteville. What was your occupation there
atthattime? Driving a dray, sir. Howlong
had you been driving a dray in Fayetteville?
Over"a year. I don't know exacty how long.
Did you know Archy Beebee ? Yes, sir.
What has become him ? Well' sir, I suppose he
-is dead now. When was the last time you saw
him alive? The last time I saw him alive was
sometime in February. I don't know exactly what
day. It was February of what year ? This
year, sir. Do you remember what day of the
week it was ? No, - sir, I am not certain .
Where did you see him then alive, in what part
of the town? He was on a dray, sir, with me.
Is that the last time you saw him? No, sir.
The lasttimelsaw him he was standing on the
opposite corner of the market house. In what
town ? Fayetteville. How came you at the
market house that day ? I just come and saw a
great collection there in the afternoon, and I
heard there was going to be a trial there. Did
you go on your dray, or walk there ? I come
down on my dray, sir. What time of day was
it when you got there ? It was after 3 o'clock as
well as I can recollect. Which end of the market
house did you stop your dray at ? On the south
side. Did you remain on the dray or get off?
I got off, sir. Where did you go then ? I
Btayed on that same side a little while, I don't
know how long exactly. Where did you move
to next ? 1 came around to the east side of the
market house ? Did you go inside of the market
house to get to the east side, or go around ? I
went around, sir. • When you got there was
there a crowd there ? Yes, sir. ' How many
people do you suppose ? There might have been
fifty, or seventy-five or one hundred probably ; '
a right good crowd. Were they white and
colored? Yes, sir, both. Where was the
prisoner Beebee at the time you had got to the
market house? Up in the market house, sir.
When you got there? Yes, sir. How long_
were you there before he came down the steps of
the market house? I might have been there a
half an hour before he came down the steps. You
went around to the east end of the market house,
did you go inside or stay outside on the pave-
ment? I stayed outside. On the payement
or off the pavement? Off the pavement. Were
yon in/ront of the middle arch ? _ I was just op-
posite the middle arch, just a little to the lower
edge of the middle arch, not far from a little China
tree that stood on the edge of the pavement.
You stood a little towards the south of the arch ?
Yes, sir. Off the pavement, near a little China
tree that stoed on the edge of the pavement?
Yes, sir. Did you keep that same position,
or did you move about ? I didn't move about
much. How long were you standing in that
position now, before Beebee was brought down
stairs ? I might have been standing in that
position five or ten minutes probably. Where
bad you been before; I understood you to say
you were there about half an hour before he came
down ? I come from the south end round to
the east. Did you go at once from the south
end to this position? Yes, sir. Did you
notice any ol these prisoners at the bar, that day
before Beebee came downstairs? I don't know
that I saw any of these men, without it was Monk
Julia. Did you see him? Yes, sir. What
was lie doing. Walking about there under the
market house, on the pavement. You don't re-
member seeing any of the others ? Not that I
recollect. Was Monk doing or saying any thing ?
Nothing that I noticed. Did you notice whether
he had any pistol, or any weapon ? Not at that
time, sir. Was there any thing unusual in his
appearance at all ? No, sir. This crowd that
you speak of, was it under the market, or outside
or both ? Both under and outside. Did you
notice any thing unusual in the crowd during the
30 minutes that you were there? No, sir.
Notice any whispering ? No, sir. Were you
alarmed in any way ? No, sir, not up to that
time. There was nothing unusual to attract
your attention that you knew of ? No, sir, not
that I knew of. Did you see John Armstrong
there that day? Yes, sir, I saw him after the
man got shot, sir. I mean during the time you
were standing there, before the man Beebee came
down stairs? Yes, sir, I recollect seeing him.
Where was he standing when you saw him ! On
the south end where I come to. Did you see
him again before Beebee came down stairs ? Yes,
sir, he was knocking about there. Did you
notice him any where else before Beebee came
down-stairs ? Yes, sir. Where was he stand-
ing the next time you saw him, before Beebee
came down ? He was around to the east end
just after I got there. Where was he standing,
on your right or left ? He was standing to my
right. On the pavement or off the pavement ?
Off the pavement. Near the edge or far'from
it ? He was about the middle when I saw him.
Was that after you had taken your position near
the china tree you speak of ? Yes, sir. Did
you see any other of your companions or any
other persons that you recognized in that crowd,
that you have seen about here during the last few
days ? Not that I know of, sir. Did you
see Louis Smith ? I didn't see him at that time.
Before Beebe came down stairs did you see him ?
Not that I paid any attention sir." You can't
80
PROCEEDINGS OF A MILITARY COMMISSION,
remember any other that you noticed in that
crowd? No, sir. And there was nothing
that attracted your attention at all ? No, sir.
What was the first thing that attracted your at-
tention ? The first thing that I sort of noticed,
sir, was when the prisoner was coming down
stairs, as he got to the foot of the steps. When
he came out of the market house who was with
him ? Mr. Wemyss had hold of him for one,
that I noticed. Which side was Wemyss on ?
On the right side as well as I can recollect, and
the Sheriff on his left. Did you see any one
else with the prisoner ? Not that I noticed sir.
Were those the only two persons that you noticed
with the prisoner ? The only two that I no-
ticed. You say no one else was with him, or
not ? I would not swear positive either one
way or the other; I don't say tor certain whether
there was any body else with him or not. There
was a crowd around there at the foot of the steps,
and there probably might have been some one
else with him, but I never noticed any particular
person. In coming down the steps did any
thing happen before Beebee got to the bottom of
the steps ? Not that I noticed sir. Did you
hear any out-cry ? Not before he got to the
foot of the steps. When he got to the foot of
the steps I saw this man Monk, just after he got
to the foot of the steps go to him as if he wanted
,to cut him, and that time Mr. Wemyss shoved
him off. What did he want to cut him with ?
Me had a knife. Did he strike ? Y es, sir, it
seems as if he struck at him. Did he move
towards him quietly? No, sir. Was it a
rush or not ? It. was a rush with him, at that
time. He rushed at him with his knife ? Yes,
sir. And struck, did he ? Yes, sir. What
-else did you notice ? He was shoved off at that
time, and they made out then, from under the
market house, and as he got to the arch again,
just as he was coming out from under the arch,
lie made another strike at him. Monk? Yes,
sir, Monk; and he was shoved off again, and he
turned toward the prisoner, the way he was going
on the pavement, as he was coming on down,
-and as he got very near against the opposite cor-
ner he made another strike. Was he in front
or behind as he made that last strike ? He Was
more to the left hand of the prisoner, sort of be-
hind him. That was the third strike ? Yes,
sir. Did you see him strike him again?
No, sir. From the time the prisoner was
passing from the foot of the steps to this
point, where you have got him now, near the cor-
ner of the market house, did any body else
interfere with him ? Nobody that I saw. Did
you hear anybody use any exclamation ? As he
got to the foot of the steps, some one said,
" charge boys !" but I don't know who it was.
You heard that expression? Yes, sir. Did
you hear any other expression ? Not that I
noticed at that present time. Try and recollect
-and see if you did or did not? Not that I re-
collect at that time. You don't recollet hear-
ing any other expression between the time the
prisoner got to the foot of the steps and the time
he got to the corner of the market house? No
sir, not that I recollect, there might have been
some other words passed. During that time
you have just spoken of did you see any of these
prisoners at the bar in the crowd, except Monk ?
Not that I noticed sir. What happened next ?
As he got to the opposite corner then I noticed
Capt. Tolar coming out the same way that I-
come. Coming out of where ? From under
the market house. Out from the East arch ?
Yes, sir, the same way that I come, and he just
pushed the men aside from each side, and I saw
him after he got his pistol to a certain height
and he raised it a little higher, and shot him.
Do you know Capt. Tolar? Yes, sir. Do
you see him in this room ? Yes, sir. Point
him out. Yonder he is sir, with green specks
on. You saw that man lilt his pistol and fire ?
Yes, sir. Did Beebee'fall? "Yes, sir. Did
you know Capt. Tolar before that time? I
didn't know his name. I knew the man. Have
you any doubt about that being the man ? None
in the world. You are certain? Yes, sir,
certain. How was the man yorf say fired the
pistol dressed ? As well as I can recollect he
had on a kind of a yellow shawl. He had on a
shawl? Yes, sir. Where did he draw that
pistol from ? I never noticed where he drawed
it from, I noticed it after he got it to a certain
height. Did you hear whether he said any-
thing ? I didn't hear. How close was he to
Beebee when he was shot ? Inside of five feet,
I don't know exactly the distance. Was he
standing on the pavement or off the pavement ?
He was standing on the pavement. Was he
near the edge of the pavement or near the mid-
die. He was nearer the edge than the middle.
Who was the nearest man you saw to him?
There was some one or two men that was be-
tween him and the prisoner when he shot the pis-
tol, which leaned their heads on one side. Do
you know who they were ? No, sir, I do not.
Did you notice any one else near him on his right
hand—near Tolar ? John Armstrong was on
his left hand as well as I can recollect. Was
John then standing on the pavement or off the
pavement? When I saw him he was standing
off the pavement. That was when the pistol
was fired? Yes, sir. When the pistol was
fired did you notice whether the Sheriff was stan-
ding behind Beebee ? He was standing more to
the right of the prisoner, in front of Mr. Wemyss,
both of them were sort of to the right of the pris-
oner. And he was in front of Mr. Wemyss?
Yes, sir. Where was Mr. Wemyss standing?
He had hold of the prisoner on his right hand.
Was he exactly in a line with the prisoner ? As
well as I can recollect. On a line with him on
his right? Yes, sir. Well, now, where were
you standing at that moment with respect to them ?
Drawing a straight line from Mr. Wemyss by the
prisoner would it strike you ? No, not a straight
line. You were a little in front of the group ?
Yes, sir. And a little to the left? Yes, sir.
A line running from the prisoner straight along the
market house would have passed on your right ?
Yes. sir. As Tolar was standing, a line drawn
from him running in the direction of the prisoner
straight down the market house, would that have
gone to the right too? Just a little. Was
Mr. Tolar behind or in front of the prisoner when
he fired? Behind him, sir. Did you notice
the prisoner fall during that time or stumble ?
He seemed to stumble. Was that before the
pistol was shot? Just before, and when hfe
raised up again some one put his hand in the com-
foit around his neck. I don't know who it was—
and he sort of throwed his head back, and
at that time he was shot. Did you see
Beebee after he was shot ? I saw him
as he commenced falling, sir. Up to that
time had you seen any of these other prisoners
beside Monk and Tolar." Not that I noticed,
sir. Who were the nearest men standing
about Tolar, at the time he fired ? John Arm-
strong was on his left? Yes, sir. Did you
notice anybody else? No, sir. At the time
that pistol was shot, was the crowd any smaller
than it was when you first got there? No, sir.
Was it any larger ? It might have been larger.
What became of Mr. Tolar after he fired that
pistol ? He stood there for a moment, and he
CONVENED AT RALEIGH, NORTH-CAROLINA.
31
turned right off .and went under the market
house; I noticed him after he went under and
then he went out of my sight. Did you notice
what he did with the pistol after he tired ? You
did not see whether he had any pistol in his
hands when he" went under the market ? He
didn't have any pistol in the hand, he shot the
pistol, he turned his right hand to me. And he
had no pistol in it? No sir. Did you see
any one else that was concerned in this affair ?
I saw Mr. Phillips just after Captain Tolar shot
the man; he had a pistol in his hands. What
was he doing with the pistol ? He was standing
with it in his hands ; he looked as if he was
cocking it or uncocking it. What sort of a
pistol was it ? It seemed to be a very small
pistol, as well as I can recollect, sir, about a four-
barrelled pistol it looked to me like. Did he
say anything? Not that I heard him, sir.
This is all you know about this affair that you
think will be of use here? Yes, sir. Did
you see any other persons there with arms there
that day ? I did not, sir, not that I can recol-
lect.
Cross examination, by the Counsel for the ac-
cused:
How long have you been living in Fayetteville ?
I have been living there two years, sir. What
was your condition before the war ? Slave, sir.
Who did you belong to before the war ? I be-
longed to Mr. Frederick Davis, of Chatham
county. And you have been living in Fay-
etteville two years ? Yes, sir. " In what part
of Chatham county was Mr. Davis living?
About a mile from the court house in Pittsboro',
sort of east from the court house. Have you
been driving a dray ever since you went to Fay-
etteville ? Not ever since I have been there,
no sir. What were you doing there before you-
commenced driving a dray ? I waited on Grif-
fith's and Kinsons's, in the store they have up in
the hotel row. You say you went down that
day upon your dray ? Yes, sir. Where from ?
Mr. Lutterloh's store. And you got there
about half an hour before the prisoner was
brought down from the market house? Yes,
sir. When you were going from the south
side of the market house round to the east side,
how did you get there? I went around, sir.
There was a crowd standing on the corner, and I
went around that crowd and come into the mar-
ket house. Did you pass on the pavement or
off the pavement ? Off the pavement. You
say when you got around to the east side of the
market house, you took your stand just a little
below the main arch and off the pavement and
near a small china tree. Yes sir, it was just
about the south end of the main arch.
From the position you occupied there, near
that china tree, could you see all of Becky Ben's
stall, and the benches which were about there ;—
the foot of the stairs leading down from over the
market house ? I could see the foot of the stairs,
sir. How could you see that, through the main
arch or through the small arch ? Through the
small arch. Looking through that small arch,
could you see that bench, which was on the left
of Becky Ben's stall,—left going down from the
market house ? No, sir, not where I was stand-
ing. Was the crowd there collected under and
around the market house, during that day, larger
than you are in the habit of seeing there ? Yes,
si1". You say nothing occurred m the crowd to
attract your attention? ^No, sir. Not before
the man came down ? Nothing that I thought
of. You saw nobody cut at him at all except
Monk ? No sir. - Were you looking at the
prisoner all the time, from the time he got down
the steps, until he got out of the arch ? No, sir,
I could not see him exactly all the time,—as he
got against the arch, inside of it, I could not see
him until he got out. And you say nobody
rushed at him, and no body cut at him, with the
exception of Monk ? No, sir. And you say
Monk rushed at him and cut at him three times?
Yes sir. You spoke something about the pris-
oner making a stumble just before he was shot.—
Yes, sir. Do you know whether that was a
stumble or whether it was an attempt to get away
from the guard ? I don't know, it seemed as if
he stumbled;—I don't know what it was, sir.
Then when he rose up you say <Mr. Wemyss was
on his right hand;—howfar was Mr. Wemyss from-
the eastern wall of the market house, at tlie time
the prisoner rose up ? He was not very far from
it,—I don't exactly know the [distance. Say
about how many feet Sam? It might have
been one foot, or a foot and a half, or two feet.
And standing immediately on his left was the
prisoner, Archy Beebee ? Yes, sir. Close to
him? Close to him. Close up against him ?!
No, not close Up against him but close to him.
And Hardie was in front of Wemyss? Yes. sir..
You are certain of that? Yes sir. At that
time, you say you saw Captain Tolar come out
of the market house; was that the first time,,
that day yeu had noticed Captain Tolar? Yes,,
sir, it was. That was the first time you notic-
ed him ? Yes, sir. And just about that
time, when they had got the prisoner up after
he had stumbled, you say you saw Capt. Tolar
coming out of the east end of the market
house thrusting the crowd aside? Yes, sir..
That was the first time you saw Tolar that day ?
Well sir, I might have seen him before,, about
the market house, but I don't know tbat I did
I didn't pay any attention to him. Now at the
time Tolar was thrusting the crowd aside as you
described, did he have any weapons in his hand ?•
Not that I noticed sir. Did you notice to seo
whether be had any weapons in bis hands or not?
No, sir. Did Tolar make any halt until he got
up and presented, the pistol to Beebee's bead ?
did be make any bait from the time he cleared
the market house until he presented the pistol.
He was not going exactly in a rush, only moving
the men out of the way; I didn't see him make
a halt. So you say he didn't make a halt, b t
was advancing slowly, pushing the men away as
he advanced? Yes, sir. And he went straight
down the pavement, until he got up within five
feet of Beebee? Yes, sir, and raised his pistol.
That you didn't see where he drew it from ?
No, sir. When he got it on a level he elevated it,
a little and fired ? Yes, sir. 1 saw it after he
raised it a certain height and he raised»it a little
higher from that. What sort of a pistol was it ?
It seemed to me like a dark looking pistol.
Not a white looking one? No, sir. Well
about what size was it ? About as long as my
hand. Which was the longest pistol, the pistol:
that Tolar had or the pistol you saw in Sam Phil-
lips' hands ? As well as I noticed, the pistol
Tolar had was the longest. A little the longest?
Yes, sir. You think Tolar's pistol was about as'
long as your hand. Yes sir? Now pay at-
tention to this question Sam—suppose aline had.
been struck from Archy Beebee's feet, straight
hack upon the pavement, parallel with the east-
ern wall of the market house, would that line-
have passed to the right or left of Tolar, at
the time he fired ? That line, sir, would just
come a little to his right? Just a little to
his right? Yes, sir, it would have struck
him on his right. So that Tolar was about the
center of the pavement ? Yes, sir, he was be-
32
PROCEEDINGS OP A MILITARY COMMISSION,
tween the center and the edge. Nearer the
center, or nearer the edge? I don't know ex-
actly, whether he was nigher to the center or the
•edge. What is your impression ? He might
have been niglier the edge than the center. How
far off from Tolar were you at that time ? I was
between ten and twelve feet from him, sir.
And to his front and left? Yes, sir, his left
hand side was to me when he shot the pistol. So
that you were to the left ot Tolar rather than in
front? Yes, sir. How many persons were
between Tolar and the deceased man Beebee at
the time the pistol was tired? Well, sir, there
were two that I noticed which leant their heads
to one side when the pistol shot. And only
two? Yes, sir. Do you know who they
were ? I do not, sir. Were they white men,
or black men? I never noticed, sir; 1 was
looking at the pistol. Why did they lean their
heads; did Tolar say anything to them? Not
that I heard of. Did he touch either of them ?
He touched the hindmost man, as well as I can
recollect.. With his left hand, or right hand ?
Left hand. At the time of the shooting, you
say you noticed John Armstrong? Yes, sir.
How far was he off from Tolar ? He might have
been a foot and a half, or two feet, not further I
am certain, and if anything he was nigher. Did
you say Armstrong was on the pavement or off?
He was just at the edge of the pavement, off of
the pavement. On the pavement or off? Off.
You spoke of Tolar's shawl, did you notice any-
thing peculiar about the shawl ? No, sir, no
more than I commonly would about a gentleman's
shawl. Did he have the shawl pinned ? Yes,
, sir, it was fastened in front. So that it could not
fall off? Yes, sir. And so that it could not be
thrown off? It seems to me it was fastened in
front. Didn't it fall off? No, sir, it didn't
fall off". I saw some of it turned back on his right
shoulder, but it did not fall off. You say then,
the edge of the shawl, though it was fastened in
front, one edge seemed to fall over his right shoul-
der ? Yes, sir. How did he get the edge of
the shawl back ? I don't know, he got it there;
"he shoved it back 1 suppose with his elbow; it
was just turned back a little. Didn't you see
him take his hand and throw it back? No, sir,
I did not. Would you have seen that, if it had
occurred? No, sir, I dont think that I would
have seen it, if it had occurred; becua.se I didn't
notice him particularly before he was raising his
pistol. I am speaking about after he fired the
pistol ? After he fired the pistol the shawl came
back to its place again. See if you can recollect
this; after he fired the pistol, didn't you see him
throw his shawl back with his hand ? No, sir.
You didn't see him ?- No, sir, I didn't. Were
you not looking at him then ? Y es, sir. How
happened it that you didn't see him do that? I
didn't see him; he might have done it. What
is your impressipn—that he did reach out and
throw it back after he fired the pistol, or that
lie did not ? My impression is that I don't
know whether he thro wed it back after he
fired the pistol or not, but he must have throwed
it back .before, because the wrong side of the
shawl was laying back a little. So that your
impression is that he threw it back before, and
not after he fired the pistol. Yes, sir. You
say you saw nobody else there with arms, on that
occasion, except Sam Phillips ? And Mr. Tolar
and Monk. What did you say Mr. Phillips was
doing ? He was standing just after Tolar shot
the pistol. How far from Tolar ? He was a
little further off than I was at the time I noticed
him. And to Tolar's left ? Yes, sir. Did
yon hear anybody make any remarks to Phillips
at that time? No, sir. Were you near
enough to have heard a man make a remark, if
he had made one in a moderate tone of voice ?
Well, sir, I might if I had been noticing it, but
they were speaking around in the crowd;—so
many different voices that probably I might not
have noticed it. You say you could not tell
whether Phillips was cocking or uncocking his
pistol ? I could not, sir. Did you notice
whether he had his thumb on the cock ? I did not
examine him close enough for that, but he had
the pistol in^ his hands. Did you notice
whether that was a four barrelled pistol ? It
looked like a small four barrelled pistol sir.
You saw it? Yes, sir, I saw it was a pistol.
And you think you cannot be mistaken about the
size? I may be mistaken a little about the
size. 1 will ask you the question—whether it
was not a navy revolver, a foot or fifteen inches
long? I don't think it was that long, I know
it was not that long. Was it as long as my
hand? Yes, sir, it was as long as your hand.
Was it longer? Not to my recollection. I
wish you to be certain about that? I'cannot,
because the view I got of it would not enable me
to give the exact length. You saw him make
no attempt to use it? None in the world.
How far was Mr. Phillips from Beebee, at the
time the shot was fired ? I didn't see him then.'
Do you know how many men were between Phil-
lips and Tolar at the time the pistol was fired ?
1 do not, sir. Were there any men between
them then ? There might have been, but I
never noticed Phillips at that time. • How many
persons were there between you and Tolar at the
time of the firing? Well there was nobody
between me and Mr. Tolar, exactly, but they
were standing both sides. I could see him plain-
ly, there was a lane running through there be-
tween us. There was a lane there for you to see
through? Yes, sir, there were some on the side
walk which was standing very close by me, but
I could see the best part of him at the time he
fired. And after the firing Tolar went back
under the market house ? i"es, sir. And then
you lost sight of him and don't know what be-
came of him? No, sir, I do not.
The Judge Advocate asked- jjermission to em-
ploy an additional clerk, at a compensation not
to exceed $5 per day. He said that he had al-
ready employed one clerk and one'stenographer,
but that they were unable to complete more than
sixty pages per day of testimony; and that the
employment of one additional clerk, such a one
as he had had recommended to him, would dnable
him to take one hundred pages of testimony per
diem; that the economy of this course must be
evident to the Commission.
The permission asked by the Judge Advocate
was granted by the Commission, and an ad-
ditional clerk will be employed at a compensation
of |5 per day, from this date.
On motion, the Commission adjourned to meet
on Saturday, the 27th inst., at 11 o'clock A, M.
Raleigh, N C., July 27,1867,10 A. M.
The Commission met pursuant to 'adjourn-
ment.
Present, all the members of the Commission,
the Judge Advocate, the Counsel for the prose-
eution, all the accused and their counsel.
The proceedings of yesterday were read by the
Judge Advocate. The following corrections
were made in witness Sam Toomef's t estimony :
On page 283, line 10, the witness wished to iu-
sert the following, "At that time some one
cried, ' command the prisoner.'"
CONVENED AT RALEIGH, XOIITH CAROLINA.
33
On page 289, line 19, (printed p. 30, col. 2,
line 64, Records) insert, " grasping the comfort-
in front of the throat, just under the chin."
On page 308 and 309 (printed Record, p. 32, col.
2, line 13) make the question read, "Did you no-
tice whether that was a four-barrelled pistol in the
hands of Mr. Phillips?" The proceedings ot
yesterday having been read, were then approved.
James. L. Nixon, a witness for the proseen-
tion, having been first duly sworn, testified as
follows: :
Examined by the Counsel for the prosecution.
What is your name? James L. Nixon.
Where do you reside? Fayetteville. What
is your business there, sir? I keep a grocery.
Where did you reside at the beginning of this
year? Fayetteville. Did you know Archy
Beebee? No, sir, I don't think 1 did. Did you
know him when you saw him ? I had seen him
a heap of times but I didn't know him when I
did see him. Did you ever see a man called
Archy Beebee 1 I saw him many a time, I didn't
know his name was Archy Beebee when I saw
him. When was the last time you saw this
man who was called Archy Beebee ? I saw him
on Monday. What month ? I don't recol-
lect. What year? This year. Was it
cold weather or warm? It was pretty cold
weather, sir. In the winter time ? Yes, sir,
I think it was. The last time you saw him was
a Monday evening in cold weather sometime this
year? Yes, sir. Where did you see him
then, sir? At the market house in Fayetteville.
How came you at the market house that day ?
I went to hear the trial that was going up there.
Was Archy Beebee the man who was on trial ?
Yes, sir. You went up there out of cu-
riosity? Yes, sir. What time of day
was it when you got there? I think it
was after half past two o'clock when I got there.
Did you see Archy Beebee when you first got
there ? He was going up the steps as I went
up I think. Up the steps that go to the town
hall up stairs ? Yes, sir. What do they call
the room over the market house ? The town
hall I believe. Who was going up stairs with
him? The e-uard. Who were they? I
forget who went up with him. Do you know
any one person who went up with him? I
don't remember. Was any person with him?
Yes, sir.; Where were you standing as he went
up stairs ? I was standing right on the pave-
ment of the market house. Which end of
the market house? The east end. Were
you inside or outside ol the market house?
Just about under it, right on the pavement.
Is there an arch in front of the market house ?
Yes, sir. Were you in that arch ? Under it.
Were you under the middle or one end? To
one side. Which side? The north side.
You were standing under the north end of the
arch? Yes, sir. Looking towards the steps?
Yes, I was looking at them going up the steps.
How long did you stay there? About two
hours I guess, or an hour and a half.
Did you change your position? Walked
about there backwards and forwards.. Did
you walk inside of the market house ?
Yes, sir. Walk outside? Yes, sir. Did
you go away from that east end? Yes, sir, I
went through the market house, I don't know
that I went out of it, I went all about in the
market house ? How long do you think Archy
Beebee was up stairs, from the time you saw
him go through the door on the stairs ? About
three quarters of an hour, I guess, or hour.
Yon didn't leave there until after he had come
down stairs? No, sir. During the three
quarters of an hour that Archy Beebee was
up stairs, what passed in the crowd, if anything?
Well, there was a big crowd, and they were going
to have a trial. f low many do you suppose
were in that crowd ? I reckon a hundred around
about there, or more, or may be not that,
many, a good big crowd. Did you see any
of those prisoners at the bar in that crowd ? i
saw one,—two. Who? Thomas Powers and
Daniel Watkins. What other name does Dan-
iel Watkins go by ? That is his proper name;
they call hitn Monk. Any name besides
Monk? "Monk Julia"—hfs mother's name
was Juiia, Is that the man, (pointing). Yes
sir. Did you see Thomas Powers in the crowd ?
Yes, sir. Do you see him here? Yes, sir.
Point him out (Witness does so.) These
two men—were they tinder the market house or
outside/ Under the market house. Where
was Tom Powers ? fie was upon a stall, just as
you go up stairs- Becky Ben's stall? Yes,
sir. lie was standing on it ? Yes, sir. What
was he doing there ? He was looking towards
the stair steps. Did you notice any thing pecu-
liar about his appearance ? No, sir. Did he
turn to look at you at all ? No, sir, I don't
think he did. Did he turn to look around the
crowd ? £ don't think he did. His eyes were
fixed on the Rtairsteps? Yes, sir. looking to-
ward■« the stair steps. What was Monk Julia
doing? He was going around among the crowd.
What was he saying? tie was saying that a
man that would do that ought not to have atrial
at all. Anything further? No, sir, that was
about the substance. Was that the substance
of all lie said ? Yes, sir Was-that repeated
once or several times ? It miglit have been
several times:—I remember it once. Did he
say it io any one in particular ? He was talking
about, but not to any one in particular. Was he
proclaiming it generally in the crowd? Just
talking. I i a loud tone of voice ? About as
loud as I am talking now. What other persons
did you notice in that crowd under the market
house that you recognized that day? There
were several people there, but I can't remember
who, half the town it looked to me, like, was there.
Can't you remember any persons ? Yes, Mr.
Leggett was there. What is Mr. Leggett's
first name 1 I don't know, sir. Who else did
you see there ? Mr. Powers. What -Pow-
eiv? Edward, Edward Powers was there ?
Yes, sir. Did you see any one else there ?
Mr. Ralph Lutterloli. Any one else? No,
air, 1 don't remember any other names. You
didn't see Capt. Tolar there at that time? I
don't remember seeing bim inside of tbe market
house. Did you see him anywhere else while
the negro was up stairs ? No, Sir, I might have
seen him but I don't remember. The only per-
sons that you remember having seen now, that
you can name are Monk, Tom Powers, Leggett,
Ed Powers, and Lutterloh ? Yes, sir. Think
well and study whether you can remember any
one else? Yes, sir, Jim Andrews, the fellow
that went with me. Any one else that you can
remember seeing in the crowd? Mr. Bond I
think was there. While the negro was up
stairs? Mr. Boud I saw, I think, while the rie
gro was up stairs. These men that you speak
of, you told what Monk was doing, and you told
what Tom Powers was doing, what were the other
men that you spoke of doing? They were
talking about the case. Mere they talking
with one another, or any one else. With one
another I thought. Were they together ? Yes,
sir, these three were; there were more around
them. These men L°ggetf, Lutterloli, Ed.
34 PROCEEDING'S OP A MILITARY COMMISSION,
Powers, and Monk you say were standing togeth-
er? Yes, sir. What were they saying?
They two made the same remark-that Monk
made; that it was not right that he be tried,
that he ought to be killed without a trial. Was
that all ? That heought to be killed,—any ne-
gro that had committed such an act ought not to
have a trial at all. Was that all that they said ?
I believe that was all. - Who was the first per-
6on you saw coming through the door on the
stairs? Coming down? Yes, from the town
hall ? If I am not mistaken the Sheriff started
first. Did you see this young lady upon whom
it was charged that Beebeehad attempted to com-
mit a rape ? Yes, sir, I was there when she got
out of the carriage. When did she come down ?
About as nigh as I can guess ten or- fifteen
minutes before the prisoner come down.
Do you mean the Sheriff came out before
this young lady ? No, Sir. I understood
y.ou to say the-Sheriff was the first person you
saw come through the door ? I thought you
were talking about when the negro was brought
down. Who came first after Beebee was taken
up ? Some officers were. going in and coming
out during the trial. Who did you see go in
and come out? I can't tell, some I supposed
who had business up there. Who was the first
person you noticed come through that door that
vou remember? I don't think I can tell you.
\Vho was the second? I can't tell you, I know
when the lady come down. Did you see her
come through the door? Yes, sir. Who
was with her? Another lady—an old lady.
Any one else ? I think Mr. Bond was with her,
I'know he helped her in the carriage. Is his
name Israel Bond? Yes, sir. He helped
her in the carriage ? Yes, sir. What became
of him after he helped her in the carriage ? I
don't know, sir. Did you see any one else go
to the carriage? No, .sir, as soon as they drove
off I never looked any more. While it was
standing there? No, sir. You swear that
no one else did go to the carriage ? No, sir,
I will swear I didn't see anybody go to it.
Were you standing in the arch when the carnage
drove off? I was standing right at the arch.
You don't know what become of Bond ? No, sir.
Could you see the stair steps when you were
standing in the arch? Yes, sir. Did Bond
go up those stairs again ? I can't say sir, he
might have went. You remember that he did
go / I do not. Do you remember that he
did not ? No, sir.. Do yon remember any one
who went up stairs at that time? I can't say
who did. I saw some. During the time be-
tween the lady came down stairs and the time
Beebee came down? Yes, sir. Was it Israel
Bond ? I can't say, sir. Don't you know
him I know him, hut I-was notnoticiug him
at the time. , You were noticing enough to
see some one go up ? Some one went
up, I supposed it was some one connected
with the trial. Couldn't you tell who
it was ? I can't recollect. Didn't you
notice* I-might have noticed, but I have for-
gotten now. Have you any impression who it
was ? No, sir, none at all: But you bave an
impression that some one went up ? Yes, sir.
As the prisoner and guard came down stairs, the
prisoner came first? • Yes, sir. Who was
along with the prisoner ? I think Mr. Wetnyss.
Where was he? On the left of the prisoner.
You know your right hand from your left. Yes,
sir. Was he on the side toward the market
house? I am certain he was on my right, the
left of the prisoner. Who else did you see there
with: the prisoner? I think Mr. Faircloth.
Was he on the right or left of the prisoner ? I
think he was a little befbre him. You think
the Sheriff was before him, and Faircloth was be-
fore him, and Mr. Wemyss was on his left ? Yes,
sin Did you see any other officers 1 McGuire
might have been there. I might have been
there—do von mean to say, you think he was
there ? I think there were more guards there,
and it might have been McSuire. Dd you
know who they were? I know the guard,
but I dont know who were there; I1 know Mr..
Wemyss was there, and Mr. Faircloth, and
the Sheriff, and there were three guards.
But you don't know who? No, sin Well what
happened ? They eame on down the steps am1
there was a rush made, as if they wanted to see
him,—about ten or twelve. You think they
wanted to see him ? Like they wanted to get
up to him, like men would, trying to see any
body, or any thing strange. How many men
ran up in that1 way ? About fifteen or twenty
I reckon, may be more. Did1 that rush alarm
you at all ? Yes, sir: I heard a man demand the-
prisoner. Was that at the same time that this
rush was made that you heard this demand for
the prisoner? Yes, sir: What did the Sheriff
reply? I don't-reeollect what the Sheriff said.,
You-heard the voice that said those words,—" I
demand the prisoner ?" Yes, sir. What words
did he use in demanding the prisoner? " De-
mand the prisoner," or " give me the prisoner.'*"
Do you think those were the words, or may they
have been slightly varied ? They might have
been sightly varied. That is my impression.
Had you ever heard the voice before, that uttered
those words, "I demand the prisoner ?" I think
I have. Did you recognize it at the time? I
thought I did,.sir. Whose voice was it ? Tom
Power's. Did you think it was him? I
think to the best of my belief it was him. Did
you see him in the crowd at that tiine? Nctj
6ir. I started'off just as the prisoner was de-
manded. You turned to go off then? Yes,,
sir. How far did yon move t I moved from-
the arch to the corner of the market, next to
Fishblates. When that rush was made did yotn
see any other of these prisoners at the bar in the
crowd? No; sir. I don't think Ldid. But
yon saw a rush made by how many men ? Fif-
teen or twenty. Can you name any one of*
them?> I don't think I can. Did you see
Monk about that time? I saw him before
that time. After the prisoner had come
out of the door? No, sir. You moved off
to the north-east corner of the market house?
To the north corner. The eornercan't be the
north corner to my understanding of it. I
would call it north. Where the east face and
the north face of the market house meet, you
were standing? Yes, sir.' That'is what I
mean by the north east corner. That is where
you went to when that rush was made? Yes,,
sir. Did you look back? Yes, sir; I saw a
scuffle in the crowd. Did you see anybody in-
that scuffle? I saw a whole lot; Did yon see
Monk at that time ? No,- sir: Did you see
anybody you recognized? No, sir, I don't're-
member! did; I saw the guard was hitting with
their'sticks, and they sort of hacked off, the-
crowd did, and they got out-in the street where
there was more, andmade a general rush. On
whom-?' Towards the guard.1 Then there was-
a little scuffling and the pistol fired. Did you
see the pistol fired ? No, sir. Did you see
the pistol flash ? I saw the smoke. Did you.
Lear the report? Yes, sir. Did you see the
man Beebee at the moment the pistolfired ? I'
think I did; sir.. It looked like he bad been.
CONVENED AT RALEKSH, NORTH CAROLINA.
thro wed down, and he was rising; I didn't think
he was perfectly straight, and he never got
straight. Where was Sheriff Hardie standing
at the time the pistol was fired .? I don't know,
.-sir. Could you see Mr. Wemyss ? Not un-
till got up there. You can't say where We-
myss was standing ? No, sir. Could you say
where the prisoner was standing as he rose?
Yes, sir. He was standing at or near the south
.-corner, next to Mr. Draughon's store. On the
pavement ? Yes, sir. Had he got outside of
tiie point to which the market house reaches ?
No, sir. Had he got past that little arch ? I
. think he was about where it ends, he was lying
.there when I went around afterward^. And
that is the point you saw him when the pistol
-was fired? Yes, sir. Where did the smoke
of that pistol come from ? It looked like it
was between me and Archy. ' Did it come in
front of Archy ? I don't know whether it was
to his back or face. Was Archy's face towards
•you ? His head was sort of towards the mar-
.3cet. Was it turned over his shoulder ? Sort
^of raised up, that way, (representing.) What
'did you do after the pistol was fired ? The
■crowd gave way, and I went up there. Did
■you walk across the pavement or around it ? I
walked off of it. Did you look near that point
nvhere you saw the smoke, and see anybody you re-
cognized, I mean immediately after the pistol
was fired? I saw a crowd standing there.
Did you see Tolar there that day at all ? After
the thing was done. How long afterwards ? I
•don't know, two or three minutes. Where
•was he standing? Standing off, outside of the
•crowd. Where ? Off from the market house,
five or ten steps, off from the pavement. Was
-lie in front of the arch ? I don't exactly know
■about that, I can't say. How far was he from
Archy, or the point where Archy was lying ? ' I
reckon fifteen feet, or twenty perhaps. Who
■was standing near him? I don't remember, sir.
You saw the Sheriff, what was he doing ? He
was brushing his hair back that way, with his
left hand. I asked him if he was shot, and he
said no, but be thought he was. Who else did
you see there then? I saw Dr. McDufiie, and
■ another Doctor. I forget, whether it was Black,
• or McSwain. Have you told all you know
about this thing. All I can recollect, sir. I
want to call you attention again to who was in-
side of the market house while the negro was up
stairs, while yon were standing in that arch?
John Maultsby was in there for one, and Jim
Jones, I forgot just now and remember since.
Who else? I can't designate anybody else that
.1 know that I can remember. 1 didn't tell you
about Monk and the knife afterwards. Let us
hear what that is? After he was shot, and
. about dead Monk was coming up with his knife.
Was that the first time you saw Monk with a
knife that day? Yes, sir, the only weapon I
saw that day. What was he doing then ? He
Baid he was going to cut his throat, or something
.like that, and I caught him and kept him off. I
understood you to say within two or three
■minutes after the.shot was.fired you saw Mr. To-
lar standing some twenty feet off the pavement ?
Ten or fifteen or twenty. He was not on the
Eavement? No, sir. Not in the market
ouse? Not at that time. But he was stand-
ing on the ground off the pavement, some 10 or
15 or 20 feet from the place where the man fell ?
Yes, sir.
The Counsel for the accused declined to Cross
•examine the witness. !
The Counsel for the prosecution addressing the j
Commission, said
" I submit, if the Court pleases, under the cir-
cumstances of this case, that I have a right to put
a leading question to this witness. The witness
has stated the circumstances of this case differ-
eatly to me before coming upon the stand, in a
very material point; and I want to put a search-
ing inquiry upon that point to him. 1 want to
ask the witness if he has not said to me, since he
has been here, previous to this morning, that
Captain Tolar was standing under the market
house, at the time these several other geutlemen
were standing there, that he alludes to; and that
he participated in conversation with them from
time to time.
The Counsel for the accused:—
We leave the matter entirely to the Court. The
Court knows the general rule, that leading ques-
tions shall not be put to a party's own witness —
We however make no objection, if the Court sees
proper to allow.it.
The Counsel for the prosecution:—
I will state to the Court that State cases differ
in that respect from all others, that when a State
produces a witness, it has a right to impeach
him if it sees fit; a witness may make a state-
ment, and then when brought upon the stand
may contiadict himself. The rule is that a State
may impeach its own witness, may at least assist
in refreshing his memory. All I want to do is to
call the witnesse's attention to the fiact whether
he has stated that Tolar was standing within the
market house at the time that Leggett, Lutterloh,
Ed. Powers, Maultsby and others he describes ;
if he has not also stated that he participated in
the conversation that then took place.
The Commission was cleared for deliberation,
and after some time so spent, the -doors were
reopened, and the Judge Advocate announ-
ced that the Commission decided to admit the
question asked by the Counsel for the prosecu-
tion.
Direct Examination, by the Counsel for the
prosecution, resumed.
.Mr. Nixon, I want you to refresh your memory
now. Didn't you, state to the Judge Advocate
and myself, day before yesterday, or yesterday,
in this little room, when we were talking over
this matter, that Tolar was inside of the market
house, at the time you speak of, and you were
standing in the arch of the market house at the
same time that Leggett, Ed. Powers and Maults-
by were inside there ? I forget. Do you re-
member whether you made that statement to us ?
I forget whether I did or not. What do you
think about, it now ? was tie or was -he not there?
I think he was. Have you any doubt about it ?
I don't think I have now, that the first time I saw
him was under the market bouse. Didn't you
recollect that, just now when! asked you first?
No, sir, or else I would have told you.
On motion the Commission adjourned to meet
on Monday, July 29, :1867, at 10 A. M.
Raleigh, N. C. July 19,1867, 10 oclock A. M.
The Commission met pursuant to adjournment.
Present all the members of the Commission,
the Judge Advocate, the Counsel forthe.prosecu-
tion, all the accused and their Counsel.
Yesterdays proceedings were then read and ap-
proved.
Eliza Ann Elliott, a witness for the prosecu-
tion, having been first duly sworn testified as fol-
lows.
Examined by the Counsel for the prosecution.
What is your name? Eliza Ann Elliott.
Where do you reside ? I live in Fayettevill, N.
C. What'is your business there? Making
26
PROCEEDINGS OF A MILITARY COMMISSION,.
and selling ready made clothing. Do you re-
member the day Archy Beebee was killed in
Fayetteville ? I do sir. What day was it ?
Monday. Do you remember what month it
Avas? It was in February. Were you at the
market house when he was killed? Yes, sir, I
was. What time was it? I believe it was
Monday evening. I dont know exactly what
hour. What time that day did you go to the
market house ? I went after I eat my break-
fast; I went down to sell some things. Did you
go back home that day? No, sir, I never Avent
hack home at all, until about sunset. Were
you about the market house all that while ? Yes,
sir. Is that your usual habit when you are sol-
ling articles ? Yes, sir. Did you sec Archy
when he was brought out of the guard house ?
Yes, sir. Where were you standing at that
time? At the corner of the market, house.
Which corner? Towards the guard house.
Were you on the pavement or off? On the pave-
rnent. right at the corner of the market house.
That is the south east corner—did you see Archy
when he was brought out of the guard house ?
Yes, sir. Who was with him ? There was two
men with him, old man Wemyss, and I never took
notice who the other was. Were they ail ?
There were some, others, but I didn't notice who.
Did you notice whether they were oflicers?
Some of them were policemen, I think. Did
you know them ? Sam Faircloth was behind, I
think. \\ hick side was Wemyss on, before he
Avent up-stairs ? I think he was on the left side.
You think Wemyss was on the left side ? Yes,
sir. Didn't you remember that Wemyss bad a
twitch on his hand ? He had a sore place on
his hand. That he had something he was lead-
ing Archy by ? He bad something in his hand,
but I never took notice. Was Wemyss towards
you or on the other side ? He was on the side
that I stood on. Who else did you see along
with him ? This towu constable Bond, was
along. Did he have hold ot the prisoner? Well
I wor 't say whether it was him or one of the po-
licemen. I won't say for certain. Did you
notice Sheriff Hardie, thereat all ? I saw Sheriff
Hai'die that day several times. • Did you see
him Avken the prisoner was brought up to the
market house ? I won't say, for I never noticed
when they come from the guard house with him.
Are you certain that Wemyss was there? Yes,
sir, I really think Mr. Wemyss was along. And
you can't say any one else who Avas in the crowd,
as I understand you, there Avere several in it ? I
never took any notice. You know there were
several persons, but you don't know who ? No,
sir, I didn't take any notice. Was there any
noise or shouting in the crowd as he came through.
No, sir, there Avas not much said." What was the
size of the crowd at that time; how many men do
you suppose were standing in that crowd Avhen
Archy came to go up-stairs ? A good many.
Hive some idea—how many do you suppose there
were? I don't know, sir, a right smart crowd.
A hundred? Well, 1 won't say, without I
knowed; if I knowed I would tell, a good many
come up after. There was a right smart crowd ?
Yes, sir. And you saw a good many come up
after he'went up-stairs? Yes, sir. Where
did you move to after Archy went up-stairs ?
I Avent about uuder the market house,
and out from under the market house How
long was Archy up-stairs ? Sometime, I
can't say exactly Iaoav long. I don't expect
you to tell to a minute but gi\re some sojt
of an estimate, I reckon an hour or such a
matter. During that fiuie you were njoviug
about uuder the market house and outside of the
market house ? Yes, sir. This crowd you
speak of, that was considerable Avhen you got
there and continued to grow while the negro was
up stairs, where was it, inside of the market house
or outside ? A good many under the market
house and some outside? How often did you
go inside of the market house while the negro
was up stairs. I Dever taken any notice, I was
just walking about there aud talking. Were
you under there several times ? Two or three
times backwards and forwards. Who did you
see under the market house at that time ? Well,
I seed several I was acquainted with, there was
the two Mr. Hall's was under there. What were
their names ? Wilbren Hall and Samuel jHall,
Ed. Powers and Tom Powe-s was there, and Mr.
Tolar, and several that I knew. There was Ashley
Peoples and Dave Oliphant, John Maultsby—I
can't tell, there was several. You saw Captain
Tolar under the a-ch at that time and you saw
Tom Powers ? Yes, sir. Did you see Monk
there that time ? I saw this little M-rnkJule,
called Monk Watkins. Well, now, you say you
were under the market two or three times, did
you see them about the market house every time
you went uudei there ? I didnT notice every
time—only I ssav them under sometimes and out-
side some. Did you see Capt. Tolar sometimes
underneath and sometimes out? Yas, sir.
What were these men doing that you saw there ?
They were saying the nigger ought to be killed.
Who said that? Tom Powers said it, and Dave
Oliphant said it, and Ed. Potvers—I can't tell who
all. Were they tasking together to one another?
Yes, sir. They said it was a damned shame to
have any lady served as that one was. Was
Mr. Tolar taking any part in the eonve sation ?
He was talking as well as the rest. Was that
underneath the market house or outside? I
heard some talking under the maiket house and
some outside. Was that all the conversation you
heard? This little Monk Jule had his knife
opeu, and said he was going to cut his throat, and
cut his head off and stick it npon a stake or some-
thing—he was always going on with some of his
foolishness anyhow. Was that all these other
persons said—that he ought to be killed ? Yes,
sir. that was all they said before he came down
stairs. Did you see any weapons ? Yes. sir,
I seed weapons, I mean while Archy Beebee
Ava» up stairS. I seed some one or two. Who
did you see have weapons ? I satv this Tom
Potvers have a weapon. What sort of weapon ?
It was one of these sharpshooters—navy-shooters
they call them. Had he it in his hand ? No,
in his bosom, here. Who else did you see have
one? I saw this one armed Slices have one and
hand it to Tolar. Was that before the negro
came down stairs? Yes, sir. Where was
Captain Tolar standing Avhen Sikes handed him
the pistol? Betwixt Phi'. Taylor's store and
the market house. In the street ? Yes,
sir. And you saw him when he handed
him his pistol ? Yes, sir. What, did Telar
do after Sikes handed him this pistol ? He was
standing about there. Didn't he move away?
No, sir. IIow long was that before Beebee came
down stairs, that you saAV that pistol handed to
Tolar? It was not very loDg ; I can't tell you
how many minutes. Was it half an hour? I
can't tell exactly ? Was it a short time or long
time? ItAvasnot very long? Had he been
np stairs half the time he stayed np there ? Yes,
sir. Was it more than half the time? Well,
I can't tell you ; I never took no notice how long
he was up there. Did you see Miss Massey that
day? Yes, sir. And her mother? Yea,
,'fir. Did you see tlmro when they came down
stairs ? Yer, sir. Where was Captain Tolar
CONVENED AT RALEIGH, NORTH CAROLINA.
37
when these ladies came downstairs ? I saw him
after they came down stairs. I saw him out from
the pavement, out from under the market house.
Was he standing near the same point he was when
Sykes handed him the pistol? Not exactly;
nearer where the negro was shot. Further
south? Yes, sir. When Miss Massey and her
mother came down, had Archy countdown stairs?
No, sir; they came down first. Who helped
them into the carriage?did any one? Ye3, sir ;
there was a gentleman, but I didn't notice who it
was. What became of them after they got to
the carriage ? They went down to Mr. Taylor's
I guess. How many men helped them into the
carriage? I didn't notice how many. Were
there more than one? There were several. I
never noticed who helped them in, or how many.
You think theie was certainly one man? Of
course there was one helped them in. Don't you
know whether there were more than one went up to
the earriage to speak to them ? I never noticed,
for this girl was crying, and the girl didn't have
much talk to no one. I want to know whether
you noticed one person,or more than one person help
this lady in the caariage? I never took any
notice how many helped them in. Did you say
there was one ? I didn't say ; I said there was
one I noticed—some helped her in. There were
some standing there, but I didn't notice who.
Where were yo.u standing when this lady got into
the carriage? I was standing from under the
market house, opposite a little tree, sort of ©IF
the pavement from under the market house. Off
the pavement near a little tree? Yes, sir. You
mean that row of little trees that runs in front of
the pavement? Yes, sir. How many of
them? do you remember? I never took any
notice; some two or three, I want to know
which one it was you were standing near ? The
one nearest the corner. Towards the guard
house? Yes. sir. That was the time the la-
dies got into the carriage. How long after the
ladies got into the carriage before Archy came
down stairs ? It was a mighty little time.
Did you keep in the place where you were stand-
ing ? Yes, sir. Until Archy Beebee came
down stairs ? Yes, sir. Could you see the
steps where you wqre standing? Yes, sir.
Could you see Beebee come down ? I saw hirn
part way, and when thev commenced to turn
down there were so many I didn't see him. When
he got must down to the ground I could not see
him. You could see him at the top of the steps?
Yes, sir. Who was with Archy when he came
outside of the door on the steps? Old man W emyss
and Sheriff Hardie, I didn't notice who the others
were. Which came out of the door first? Sheriff
Hardie came out first. Was he before or behind, on
the right or left side of the prisoner ? I think he
was on the right side of the prisoner. You think
the Sheriff came out first on the right of the pris-
oner? Yes, sir. Where did Wemyss come ?
They were both together. Wemyss on the right
too? Well, you see Wemyss was on one side;
and he on the other when they went to come
down. And you saw no one else that you could
speak of? No, sir; I was just standing, looking
to see what they were going to do Did Ar-
chy say anythiDg ? 1 heard him say "Q Lord,
don't carry me there ! " Did vou hear anything
said in reply ? Sheriff Hardie said he was there.
Was that all? Yes, sir. AVhat happened
next ? The next I saw, was when they came out
on the pavement there. When they went around
the arch you lost sight of them, for a few moments ?
Yes, sir; I lost sight of them because there was
go many standing in there, From the time they
sot to the foot of the step? until they appeared
around the »rch you lost sight of Archy f Yes,
sir; I saw him once as he came through the arch,
I saw him You lost sight of him from the
time he come to the foot of the steps until he turn-
ed round the arch ? I saw him a little before he
got to the arch, and lost sight of him as he went
down to the foot of the steps, and when he come to
turn, I saw him. Just before he got to the arch ?
Yes, sir. Did you hear any exclamations or
shouts in the crowd at that time? Yes, sir; I
heard them holler out " shoot him t shoot him !"
" kill the damn son of a bitch" Who did you
hear holler that? I heard Tom Powers and
Samuel Hall and Captain Toler. Where was
Captain Tolar when you heard him shout ? He
was right before me. He had come from where
you saw hiss last? Yes, sir; he was right before
me, some three or four feet from me. You were
standing near that little tree ? Yes, sir. And
Captain Tolar was before you—which way were
youfaciDg? Just like I am to you. Which
way were you' facing,—towards the guard house?
Yes, sir—down towards the guard house. The
w ay he turned to go; I hearii what they threaten-
ed and I was looking to see. And your face was
towards the guard house? Yes, sir. And
you were standing near that tree, and Captain To-
lar was in front of you ? . Yes, sir. He was in
front of you when he made this exclamation "sbtpt
hitn?" Did you hear "anybody else cry out
"shoot him?" Yes. sir; up on the pavement of
he market house, I heard some one cry out shoot
him. Who did you hear cry out ? I took it
to be McRae's voice, and I looked and saw McRae
on the top of the market house, and some other
gentleman with him, somewhat favored Captain
Horn. That was at the time these others were
shouting "kill him ! "? Yes, sir. Before tho
shot was fired ? Yes, sir; that was before the
shot jvas fired. What do you mean by looking
up on the pavement ? I call the pavement on
the top of the' market house; there is a place out
there—a porch or something. Do you know
Major McKae well ? Yes, sir; I have been ac-
quainted with him for about fifteen years, off and
on. Have you seen much of him during the last
few years? Yes, sir; I have seen him every
day, sometimes two or three times a day. Did
you have any talk with him ? O, yes, I have
talked to the old man several times. Do you
know his voice ? Yes, sir. I understand you
to say when you heard that shout, you thought it
it was McRae's voice? Yes. sir. Was that
before you «aw him on the top of the house ?
Yes, sir. You thought it was his vpice before
you looked up ? Yes, sir. And then you looked
uo and you saw him standing in this balcony ?
Yes, sir. Have you any doubt about that?
No, sir, I think it was him. Where was he
standing in that balcony ? He was standing
about the middle of it. Had be his hat on?
No, sir, lie/ was bare headed. And you think
Capt. Horn was with him? Yes, sir. Was
his mouth open? Well, I didn't notice about ,
his mouth being open, only he hollered out "shoot
him,'' and I took it to be him, and he was like the
rest of tbem. How do you mean ? Some was
laughing and talking—he always has on a smiling
look—almost always laughing. Do you remeni-
ber the expression of his face ;—did it strike you ?
Well, I don't know, I took it to be hiin, and I
looked up. I want you to be very particular
about this—have you any doubt, whether it was
him? Well, lean just tell you, I took it to be
him ; I only flashed my eyoa up and down. You
took it. to be him from bis voice, and you took it
to tie bun when you looked at him? Yes.sii.
You have known him for fifteen years, and yon
88
'PROCEEDINGS OF A MILITARY COMMISSION,
rhave known him well for the last two or three
•years? I have seen him almost every .day. You
were still standing near that little tree ? _ Yes,
-sir,,! was watching to see what was going on.
"Now Mrs. Elliott, I understood you to say ;just
■now, that you were looking down towards the
guard house ? Yes, str, I was 'ooking the way
ho went—I was only watching liiro. Sow did
you flash your eyes up with your head turned
the other way.? I can turn up myeyes, this
way. A sort of side view? Yes sir. What
happened then immediately after this shouting
(that you speak of.? They hollered out clear the
-way. Who was "they" ? Jt was TomPow-
ers and Captain Tolar and some more of*them ;—
1 never noticed, but they were right before me.
Was Tom Powers before you too? He was off
sort of one side of Captain Tolar. Which side ?
The left side. Did you see Sam Phillips there
in the crowd ? Not at that time. You were
standing near that little -tree off the eidewalk.
Yes.sir, And Captain Tolar was standing right
in front of you? Yes. sir. Now, I want you to
take this p«ncil and show us on this chart where
those people were standing? (Witness points
out where Tolar and Aroliy Beebee were stand,-
ing ) Was Beebee standing there when the
pistol was fired,? Yea, sir. Who fired the
pistol? Capt. Tolar,—he (flung back his shawl,
jnst so, and presented it. And you say Tom
Powers was standing near his left? Yes. sir,
Did you see any one else near him,ithat you can
name ? Tom Powers was there, Ed. Powers
was there. _ Where was Ed. Powers standing ?
On the left side of him. Where was Tom Pow-
ers ? Sort of 'hind Ed. Powers. Did you no-
>tice Monk-at that time? He had his knife open.
I mean the moment before the shooting took place?
He was right in the crowd with his knite open.
You saw him then? Yes, str. Where was he
standing at that moment ? I won't say for cer-
tain where he, was standing when the pistol was
ifiredwhen the pistol was fired Monk rushed up
to cut his throat, and cut old man Wtmyss' hand.
That wasjust after the niegar fell. You say you
«aw the man who fired the pistol? Yes. sir.
And it was Tolar ? Yes, sir. How close was
die to the negro when he fired, do you suppose?
He was pretty close to him. Was the pistol bar-
ffel touching the,negro's head ? Not exactly, a
little bit off. The muzzle -was a short distance
from his head ? Yes, sir A foot do you sup-
(pose ? I can't tell. Can you form any idea ?
It was about so from tins genileman, (about a
foot.) What did Tolar do with the pistol afi er
3he fired ? He gave it to Ed. Powers, and Ed.
'handed it to someone else, and it passed on out of
Ahe crowd—Captain Tolar flung it one side to Ed.
■Powers. Do you mean he threw it down ? No,
-sir, he flung it down to his right side, and Ed-
(Powers took it and gave it a fling and it went out
of the company. I understood you to say Ed.
Powers was standing on Tolar's left hand.? I
.meant to say Tolar was standing on the left hand
of Powers, was what I meant. You say now
Ed. Powers was standing on the right of Tolar?
Yes, sir; he was. It was Tolar en the left side of
Powers. Was Tom Powers on his left hand or
right? On his left. And Ed. Powers was on
■the other side ? Yes, sir. And you saw Ed.
Powers take the pistol? Yes, sir ; he gave it a
sling and Ed. Powers took it and gave it a sling.
Which did he sling it to ? I never noticed, he
gave it a sling and by that time you see it was
gone, it went out of the company. You never
saw it afterwards ? No, sir. Did you see Ma-
lor McRae any more that day ? Yes,"air: Major
McRae came down stairs. What did he have te
say ? Hs came down stairs, and iaid.be enppo".
ed the negro was shot, he supposed they killed him.
Was that all? All I heard him say. Did he
come up and look at the negro? Yes, sir; in
under where he was shot down, and Jim Nixon
had taken this Monk Julia and carried him out of
the company. I went under the market house,
and Mr. McBae came down, I guess he went (to
look at him. You don't know? 1 won't say,
he went that way. You wer9 under the market
heuse when McRae came downstairs? Yes, sir.
And it was as he came through the market house
you heard him say that ? Yes, sir. Who was
he talking to ? He said it to the crowd, I never
noticed. What became of Tolar after be fired
the pistol? He passed it to Ed. Powers, and
went np the street, up towards Hay Mound Hill,
and after a while he came back. As soon as he
fired the pistol he left the crowd? Yes, sir.—
And went up Hay street? Yes, sir. Bow far
up did you see him go ? I saw him go up some
distance he went rignt straight up. Hay street
is the street that runs west from the market house ?
I believe that is what they call it. Is there any-
thing further that you know about this matter ?—
Did you see anybody standing on Becky Ben's
stall that day at any time ? I .think so. At
what time? I saw John Manltsby stand up
there. What time ? Well it was a little while
before this negro was brought down stairs. And
I heard John Maltsbv say " tbey are coming?
look out boys 1" You saw Maultsby on that
stall ? He was standing up on a bench there.
Which bench ? Becky Ben's What was he
doing ? He was only looking. Did he say
anything ? When he went to come down stairs,
he hollered " look out, boys, they are comiDgf*'
and he went from under the market bouse, and
went out where I told you where he was before
they came down. Did you see any body stand
up by him ? There was a good many, some on
the benches and some down, I never noticed par-
ticularly who was with him. Do you think any
body else was standing on that bench ? There was
some several boys—little youngsters. Were there
any men ? I won't say for certain, I tell you
just what 1 know. You think there were several
boys there? Yes, sir. Do you know any of them
Weil, there were some colored boys and some
white boys. Can you name any of them?
You see I knows a good many boys but I never
knows their names. I see yoi^, and I know you are
Lawyer Haywood but I don t know your name.
Can you tell me the last names of any of them ?
Whose sons were they ? They were colored
boys mostly and I wont say who they were. You:
can't say who was -there? No, sir. During
the whole time you were there you said you saw
Tom Powers witu a pistol, and you saw Sikes give
it to him ? Yes, sir. Did you see anybody else
with a pistol or a knife ? I saw Monk with a
knife. Anybody with a pistol besides ? Well,'.
I won't say say for certain whether I did or not.
Cross examination by the Counsel for the ao-
cused^ 4
Your same is Eliza Elhctt? Yes, sit*. What,
is the name of your hnsband ? George Elliott. •
How long has.it been since you married George
Elliott? I have been married to him two years I
this coming September. What was your name ;
before you married Geo Elliott? I have had
two or three names. The name just before you
married George Elliott? Eliza Taylor, What,
was your husbands name when your name was
Taylor? His name was Robert Taylor—Lieut.-
Taylor—he was a yankee. What has become
of him ? He died of typhoid fever, in Alexan
dria, Va, When did he die? This July two
years ago, • And you were married id the Sep-"
CONVENED AT RAfcEHJH, NORTH. CAROLINAv
tember afterwards ? Yes sir. When did you
marry Taylor? I met him when the army come
through Fayetteville. Gem Sherman's army ?•
They called it Sherman's army. How long had
you been acquainted with Taylor before you mar
rifed him ? He come through and I married
'him and went right home with him. ' Had you
been acquainted with him one day before you
married him ?.' Of course I. was acquainted with
him one day. Were you acquainted two days?
I was married the third day I saw him. if that is
what you want to know. How long did you live
with him after marrying him. Two months.
What was your name before you married Lieut.
Taylor? Kennedy, Your husband's'name?
Thomas Kennedy. When did he die? He
was killed in Maryland, the " rebs'* killed him in
Maryland. When did the rebs- kill him?
When they were fighting in Maryland. What
was your name before j ou man ied Kennedy ? I
•was a Mason. Was that your maiden name ?
aThat is what they say. You had never been
married Before you married Kennedy ? No, sir,
I was married to Tom Kennedy when I was twelve
years and three months old'. Where did you
live at the time you were the wife of Kennedy ?
B lived in Fayetteville part of the time and part of
the time up country. Tn what county up the
.country? In Cumberland, and part of the time
in Harnett. What were you; doing during the
war? Iwas making clothes to sell Did you
epend any time during the war in Raleigh ? Yes,
sir, I came here to work when they gave out sew-
ing—made soldiers clothes, When you were
here in Raleigh did you mnkethe acquaintance of
a colored man by the name of William Edwards,
a baker? William Edwards, T went there and
bougi.t some vict'-als, you know, cakes and one
thi g or other, that was all the acquaintance I
made with him. That was during the time when
the war was going on ? Yes, sir that was so
Since you hare been up here as a witness have
> ou seen that man William Edwards ? I'saw him
t'other day, one Sunday that I was walking, and
he was standing opposite the jail. Since you
have been up here have you'got William Edwards
to Write letters for you? 1 didn't know he
could write. Have you got him to write any
letters for you since you have been here this time ?
No, sir. You swear that you have not got Wil
liam Edwards to write yew any letters? Not
that I know off there was some man that wrote
some letters. I don't know whether it was Wil-
liam Edwards. I was not acquainted with Wil-
liam Edwards, only just like Bwalk to your offi:e,
and buy cakes and go on. I was not acquainted
with the nigger. I had no use for the nigger.
The question I ask you is, whether William Ed-
wards, the colored man, the baker in this place,
that you knew here during the war, whether you
have got him to write any letters for you since
you have been here this time ? I got a colored
man to write a letter to my husband. Was that
colored man William Edwards? That is what
they said, I didn't know he was till he wrote the
letter. Was that a pox-marked man? Yes,
sir, he had had the small pox. And they said
his name was William Edwards? Yes, sir ; but
I didn't know his name when 1 bought cakes at his
place. He was the same man ? He said he
was. I don't know what his name is. Mrs.
Elliott, I will ask you this question—pay atten-
tiou, if you please, and answer it properly. 1 will
ask you whether, at the time you went to
get William Edwards to write that letter for
you, on that Sunday, and in the city of Raleigh,
y->u knew nothing abont this matter in the
world ? I only said this: they asked me several
times' about it;. Isaid when I was called to testify
on it I would tell what I> had seen and heard. I
ask you again whether you did not tell him so f;
No, t didn't tell him no such a thing. I didn't
tell no one I didn't know nothing about it. I
will ask you the question whether you did not, at
the store of Edward Powers,, in the town of Fay-
elteville, tell Edward Powers that they told many
lies with regard to what your testimony would be
on the occasion; that you knew nothing about the
matter at all? I didn't tell Ed.-Powers no such
tale as that, neither. I will ask you whether
you did not, in that conversation, remark to Ed.
Powers, that " that they have said that I would
testify that you passed the pistol, but it is a lie..
1 have never said anything of that BOrt ?" I
told him I hadn't said nothing then about it, but
when come to be sworn about it I would tell all I
seen, or heard and knew. I said I hadn't done it.
Ididn't say I was not going to. He had a chill,,
on him, as he was seared to death, for fear I had
said something. I ask vou the question whether
when you came from Fayetteville .to this place,
and'the stage was stopped at James McGiffin's,,in>
the County of Cumberland, and you didn't then
and there tell Dr. McDufiiie that you knew notM
ing about this matter ; that McRae had nothing to
do with it and that fcbey had reported lies with re-
gard to what you said about it? I can tell you
just what I said : I said there had been a good
many lies told about this case, and 1 should only
tell what I knowed, and seen, and heard. I said I
didn't want to be in it, but they summoned me,
and I would tell all I seed and beard. Then you
say you didn't have that conversation with Dr..
McDuffiie at that place? I told Doctor that
there had been % good deal said about.it. Mrs.
Elliott, where do you say you were stand-
ing when the prisoner came down the market
house steps ? 1) was standing out from
under the market house,. opposite a little tree.
I wiilthen ask you this question, were you not
at that time, when the prisoner was brought
down out of the market house, were you not at
that time under the market house, and in Becky
Ben's stall or Becky Jenkins' 6tall? No, sir, B
just told you where I stood. After the negro*.
Archy Beebee, was shot, didn't you turn round
and say to Becky Ben or Becky Jenkfns—you.
know her? I reckon I do know lier, she baa
been, cooking and one thing or other about
there a good while. I ask you, whether you.
did not, directly ater the negro was shot, say
"By God, lam going out and see who shot him."
No, 1 didn't say, by God I was going out to see-
who shot him. I didn't say any such word a&
that; as I turned from Mm when they shot him.
I met Rachael Lord, a colored woman. She waa
standing behind me and I said, did you see who
shot? Rachael'said she didn't know liim, I seed
it, but I didn't know who it was. I told her it
was Capt. Tolar done it. That is what I told Ra-
ehael Lords I ask you whether you did not
come back under the market house alter you had
gone out that time, and say, to Becky Ben, "I
could not find out who shot him, I could not find
out anything about it?" I can tell you what
Becky Ben said, Becky Ben said "don't you tell
nothingaboutit, havenothingatall to do withit."
I. said-it ain't nothing to me nohow, that is just
what I told her, I didn't shoot the nigger, and it
was none of my folks done it. You said vou
didn't tell Becky Ben that you knew nothing ahout
it? No, sir, I baintnever denied who done it.
You say you were not. under the market house at
the time the negro was shot, or at the time be was
brought down stairs? No, sir. You were out
of the market house ? Sort of off the pavement,
and near the little tree I* told vou. Who was on
40
PROCEEDINGS OF A.'MILITARY COMMISSION^'
your right hand at the time you was standing
there, just as the negro was brought out, ? I
was not noticing who, I was only noticing to see
who was going to kill the nigger. You didn't
know who was upon your right hand? I was
not taking any notice,:—I was only watching them
to see who killed him. Who was upon your left
hand? Well, I never noticed who was. Wbo
was at your back ? Do you reckon I could see
behind me and before me ? Who was in front?
Capt. Tolar was in front, of me. Centrally in
front? He was when he shot this man. How
many steps was Capt. Tolar in front of you ? He
was about three or four feet. Did I understand
you to say Ed. Powers was at Capt. Tolar's right ?
Ed. Powers was at the right eide of Capt. T olar.
How far was Ed. Powers lioniCapt.Tolar? He
was close at him, I told you—near enough to take
the pistol. Who was on Copt* Tolar's left hand ?
This Tom Powers was sort of off to his left. Who
was in front of Capt- Tolar ? This Archy Beebee
and Sheriff Hardie and old man Wemysswasin
front of him, and I cant tell wbo all, for I could not
see everybody, I only tell who I see How far
was Capt Tolar off of the pavement ? He was
but a mighty few steps. How many steps ? I
never counted, I see'd he was not very far. How
many steps do you think he was? I don't think
any thing about it. How many steps do you
think he was now, off from the pavement? I
never taken any notice, he was not far from it.
I ask you whether there was any body upon Capt.
Tolar's left hand at that time? There was a
good ntiany there, but I was not noticing to see ev
ery body that was around there. Can you name
one man that was on Tolar's left at (hat time.—
any one man ?Thomas Powers was close to his left.
Was Tom Powers directly on Capt. Tolurs left?
1 never taken any notice how many step-q he was
not far from Tolar. Was Louis Smith on Tolar's
left hand? Louis Smith and several black men
sto :d right clo?e around him. Do you recollect
any of these black ones' names? Yes, I can tell you
several. .Namesome of them? John Armstrong
Bob Simmons.Louis Smith.Sain Toomer, Matthew
Leary, and one of tlie Jenkins's was standing
there. That was"Tom, was it not? I think
that was what they call him, he was a thick, tat
fellow. They were all on Captain Tolar's left
hand V They were all standing there in a bunch,
they were looking^to see who killed him. Which
seemed to he nearest to Captain Tolar, John
Armstrong? John Armstrong was near him,
he was near enough to tell him, " Captain Tolar
you have shot that poor negro." You heard
that? Yes, sir, he spoke it right there in the
company. Well then, John Armstrong was
nearest to Captain Tolar, on hisleft hand ? He
was close, I won't say which was the nearest, I
saw him there very near him. How near was
Matthew Leary to John Armstrong? Well I
won't say, I saw them in a hunch together, they
were all looking as well as the rest. All in a
bunch together? Some were in a bunch.
"Where did Captain Tolar draw the pistol from?
I can't tell, he took and flung his shawl back, so,
and presented the pistol to the negro's head and
shot him down. Did lie draw the pistol from
his lelt side, or right side ? I told you I don't
know which side.' When you first saw the pis-
tol in Tolar's hand, was he raising it, in'thisiway,
or was he bringing it down, in this way ? _ He
flirted the shawl, and presented the pistol right
to the black mmi's head. In flirting up his
shawl, do you mean that the muzzle of his pisto1,
at any time went up so, (representing.) He
flung it up so, (representing.) And then drew
it down, and presented it ? ' Yes, sir. Do you
know what sort of a pistol it was? They call
it a navy pistol. ' How long ? I never meas-
ured it, I only tell what I know. How long
bad Tolar been standing there, at your front, as
you say ? I never taken any notice, how long
he had been there. Don't yon remember you
saw Captain Tolar come rushing up, pushing the
crowd aside, and as soon as he ran up to him,
he shot him? Cap)tain Tolar was stand-
ing, as I told yon; when he said, " clear
the way " he flung his shawl back so, and present-
ed the pistol right to his head and shot him, and I
saw it. He bad been standing still then for
some time, had he? He was standing in front of
me sometime. You say you have known Mr.
McRae off and on, for fifteen years? I have been
acquainted with him ever since I was first married
to Thomas Kennedy. What do you mean by
off and on, sometimes you know him, and some-
times you don't? Suppose now I see you here,
and maybe next year or next month I "see you
again, That is what I mean, if you want to know.
Wei!, yon say you heard a number of persons cry
out "shoot him" ? Yes, sir; there was some voices
cried out shoot him. And you say one of these
persons was Tom Powers? Yes, sir. Who
were the others? Tom Powers, Ed Powers and
Capt. Tolar. I can't tell you, there was several; I
can't tell all. How did it happen that you were
so particular in noticing these persons cry out ' kill
him," Tom Powers aDd Captain Tolar and Ed.
Powers? Because my eyes seed it. , It was
not because you knew their voices ? Of course
I knew their voices; I was near neighbor to Capt.
Tolar sometime. Did you know Ed Powers'
voice? I have been acquainted with him long
enough. Did you know Tom Powers' . voic?
Well I don't know Tom Powers' voice as good as
I did the others, but I know his voice. You
saw their mouths open ? I saw them speak, you
know. Then you heard—how many voices upon
that balcony that you called the pavement? I
heard them say "shoot him 1 " and I looked up—
flashed my eyes up. How many voices were
there ? I heard two voices up there. I heard
two say " shoot him 1"" shoot him I " I took it
to be McRae and this Lawyer Horn. Is that the
gentleman theie? (pointing) It favors him.
And you thought you heard both of these two
voices ? I can tell you just how it was. I
heard a voice upon the market house and took it
to be McRae's voice. I looked np and I saw Mc-
Rae and another man, and I took it to be Lawyer
Horn'. You have beard McRae's voice often
enough to know it when he speaks ? Did you
know Horn's voice: I was not much acouainted
with him. I never talked to him as much as I
have to Mr. McRae. Just answer the question,
whether these two voices were the voices ot McRae
and Horn ? It was just one man spoke, it was not
two different voices. The same person spoke oat
"shoot himl" "shoot him!"? Yes, sir.—
And you swear positive, without doubt, that when
you looked up there, one of these persons was
Duncan G, McRae ? It imitated him so near, I
believe it was him. . Have you any doubt about
it? I just tell you all I know about it- How
far were you from him—as far as from here to the
gallery up there ? Well I don't know how. many
feet high the market house is. I was standing on
the pavement and I cut my eyes up and he was
standing on that place. You say you were
about opposite the middle of the balcony ? . I
was standing outside of the market house, off the
pavement, off opposite that tree. How far
were you ofl from the market house? Weill
was off—you know how wide the pavement is; I
was a step or two from the. -pavement. How much
convened at raleigh, not;th-carolina.
41
of McRae's body did you see ? I saw fromthe mid*
die up. What prevented you from seeing the bal-
ance of his bo^y ? I didn't take pains to look.
Then you just cut your eyes up and cut them down
again ? Of course I did to see, who it was shot him.
And you saw it ? I did. You saw Capt. Tolar
after he had shot him throw his arm down "to his
side and Tom. Powers got the pistol? He did,
he took it out of Tolar's hand ? And passed it
back ? Yes, sir. How far did Tolar go up
Hay street? I don't know, I saw him going up,
I never noticed how far lie went up. Which
side of Hay street did he go up ? He went by
Hinsdale's store. How far up the street did you
see^him ? I don't know how many yards or
how long ;—you know I said I saw him go a right
smart way up the street. About whose store
did you see liim last ? I never noticed what
store he had got to, Had he got as far up as
the hotel? He was as far up as the hotel or
above it. , Did he make any stop atter coming
out of the market house ? He never made no
stop—after awhile he come back. You are cer-
tain he didn't stop at Hinsdale s ? Well, I seed
him before Hinsdale's. Don't you know he
stopped at Hinsdale's store for a long time?
Well, he went into Hinsdale's, but I won't say
whether he went in before he went up Hay Mount
or afterwards. Mrs. Elliott you don't seem to
understand me. I want to know when Tolar went
out of the market house whether be made any
halt at Hinsdale s store. I seed him when he
shot this man and flung the pistol around and
wheeled and went right off and went right out
through the market house. At that time did he
make any stop at Hinsdale's store ? I wont say
whether he made any stop or not, I was talking to
Rachel Lord. How long was it after you saw
him come out of the market house before you saw
him go up Hay street? I don't know how many
minutes. Was it a very short time ? It was
not very long. Was it an hour? I might
say it was a half an hour? Do you know
whether it was moie ? It might not have been
a half an hour.
Re-direct examination by the Counsel for the
prosecution:
Mrs, Elliott, I understand you to say that the
two exclamations " shoot him " V shoot him,'"
were not from two different men ? Ho, sir, there
was just one person's voice. One person ex-
claimed this? Yes, sir. You thought that
voice was Major McRae's ? Yes, sir. You
have been asked about the conversation you had
with Ed. Powers. Yes, sir. What didlun-
derstand you to say that conversation was ? You
see I was passing by Ed. Powers' store and he
called me in his store and asked me " had I said
anything about him having a pistol or being in
that crowd," I said. "I have said nothing about
it yet." Hadn't you said anything about it then ?
No, and he was like one tliat had ager on him;—
he had the trembles so bad for fear I had told it.
What was the just of the conversation, if any-
thing ? He said he did not think I would tell
that on him. What did you tell him? I told
him I hadn't said anything about it because I
hadn't. You had not at that time ? I had'not
at that time—you know I wouldn't have said any-
thing about it if I had not been sworn and re-
quested to tell what I knew that went on. You
do not like to tell anything abeuthim now ? You
know I had to tell the truth. I understood you
to say in the cross examination that Tolar was
standing still for a minute or two before he fired
that pistol? Yes, sir. That he did not rush
through the crowd parting them right and
left ? I did not see him rush through the
crowd. He was standing still a minute or two ?
Yes, sir. A longer time than a minute or two ?
I don't know—I won't say—I never taken any
notice and I don't know whether he was stand-
ing still at all—I saw him when he flung the pis-
tol back—I turned my head up when the cry
came '-shoot him, shoot him." I do not know
what he may have done when I had my eye off
him. I want to know if Tolar was standing
still when he fired that pistol ? Yes, sir. How
long had he been standing still before he fired—
do you suppose, as long as you can count five, ?
I can't tell exactly liow long he was standing still
when I cut my eye off him, and when I looked
back he was standing still. How long had you
been noticing him before the shot was fired ? I
had been watching him right smart. Had he
been standing still at that position any length ot
time or not ? He was standing still when I saw
him draw the pistol. For a minute or two be-
fore he fired that pistol ? I saw him there
about the same position all the time; I won't say
how many minutes. It was more than a second ?
I guess it was. Do you know exactly where
Tolar was standing when the negro man came
down stairs ? He was standing off from tinder
the market house. Not under the market
house ? No I don't think he was—I seed him
about the time the negro turned from under the
market house—I saw Capt. Tolar in the company
there. Where ? Well, opposite me up to-
wards the tree. As the negro turned the arch ?
Yes, sir. And he did not change his position
until he fired ? I did not see that he did; but
then I won't say, because in such a place as that
everybody is frightened—I can't say exactly.
Hereupon the Commission had a recess of ten
minutes, after the expiration of which timegthe
Commission was called to order and proceeded
with the examination of witnesses.
James W. Strange, a witness for the prosecu-
tion after having been first duly sworn, testified
as follows:
Examined by Counsel for the prosecution.
Were you one of the Justices that presided at
the preliminary examination of Archy Beebee, on
the day he was killed ? 1 was, sir. We wish,
you to state to the Court, sir, the position which
Major McRae occupied in that room, at the time
Archy Beebee left the room to go down stairs ;
where he was seated in the room? Well, sir,
that table being east, Major McRae was sitting in
the center of it. On the west side of the table ?
Yes, sir. That table was sitting in the south-
west corner of the room? Yes, sir. And
pretty near the wall ? Yes, sir. I understand
you to say, that Major McRae was seated in the
middle of that table at the time Archy Beebee left
the room ? Yes, sir. How long did he retain his
position there ? We set there after he went down
until after the pistol was fired. You are absolutely
confident ? As positive as I am sitting in this
chair. Did you retain your seat? We all
retained our seats until after the pistol was fired.
Who do you mean by we all? The entire
Court. Who were they ? Major McRae,
Mr. Arey, Mr. Lett and myself. And you all re-
tained your seats until that pistol was fired ?
Yes, sir. Did you leave the hall then ? Yes,
sir. Did any one leave the room and go out in
the balcony in the east end of the hall before you
left the room. Not that I am aware of; some
one said, he was shot; I do not know whether
he went out to see or not. You bearcl
the rumor that the negro was shot? Yes, sir.
Cross examination by the Counsel for the accu-
sed:
PROCEEDINGS OF A MILITARY' COMMISSION,
Are you acquainted witli the general character
ef Mrs. Elliott ?
Counsel for the prosecution objected.
We wish to have some understanding about the
mode in which this examination is to be eonduc-
ted.
Counsel for the accused:-
I would state to the counsel, that it will save
the trouble of calling Mr. Strange as a witness in
the defence.
Counsel for the prosecution
We admit that the character of the woman is
hot to be sustained.
Counsel for the accused:
Then we have not a question to ask the man.
Joseph Abet, a witness for the proseeution after
having been first duly sworn, testified as follows:
What is your name ? Joseph Arey. Were
you a magistrate of Cumberland county in the
winterof 1-866 and 1867 ? I was, sir. Were
you presiding at the preliminary examination that
took place in the case of Archy Beebee ? Upon
the invitation of Major McRae who was the presi-
ding magistrate, I was invited to assist him on the
examination. You were present there ? Yes,
sir, present and assisted. Will you state to the
court the position that Mr. McRae occupied in the
hall from the time that Archy Beebee left the hall
until the time the pistol was fired ? He was sit-
ting at the table. ©id he leave that seat at all ?
No, sir; I do not think he stirred; lam pretty
certain he did not. Are you absolutely certain
he did not ? I am cortain. You heard the
pistol fired • you were sitting at the same table?
Yes, sir. Who else was sitting at the table ? Mr.
Strange, Mr. Lett and myself; I forget what other
one there was ; ftbree of us—Strange, Lett and
myself were assisting. And I understand you to
say you are absolutely certain ? I' am confident
That Major McRae did not leave that seat until
after the pistol was fired ? He did not; I am
confident. Did you leave it after the pistol was
fired? Soon after the pistol was fired a person
came and said "heisdead."' Soon after that I
went down, and during my stay he never left the
seat. During the time you were in the room he
never left the seat ? At one time, I was a little
bothered about this, but upon reflection, I have
no doubt that he never left his seat during my stay
there. You did not leave the room until after
the pistol was fired, and until some one had come
in the room and stated that Archy was dead ? I
did not leave it in some little time after that.
Counsel for the accused declined to cross ex-
amine the witness.
Henry W. Horn, a witness for the prosecution
after having been first duly sworn testified asfol-
lows:
What is your name ? Henry W. Horn. What
is your profession? Lawyer. Were you,
Archy Beebee's Counsel.on the day that Ms pre-
liminary examination took place ? I was, sir.
Were you in the town hall at the time Archy was
carried out of the hall ? I was thero at the time
lie went out; not when he was carried in. Did
you remain there until you heard a pistol fired
below? I did sir. Can you state theposi-
tion that Major McRae occupied in that room
at that time? He was sitting in the south
west corner of the hall with the table between
him and the door through which Archy had
to go ; he was writing the proceedings of the trial,
taking the testimony dowD. Re .was writing ?
Yes, sir. Do X understand you to say he was
engaged in writing until the pistol was fired ?
During the time it was necessary to write up the
papers, after the trial. Did he leave his seat
tiM after the pistol was fired? He did not, sir.
©id any one leave the room before you heard the
pistol fired ? No one that I recollect, sir, except
when the Sheriff went down with the prisoner,
and thepossethatwaswithbim. Did you notice
whether the door that opened on the balcony om
the east end was opened, or not? I do not
think it was locked, because I went but myself im-
mediately after the pistol was fired, on the bal-
cony. Did any one pass through therefrom the
hall after the pistol was fired ? were you standing
in a position where it was in your view ? I was
sitting where I could see the door all the time. 1
cannot] say positive, but my impression is that no
one went out. You say you went out imme-
diately after the pistol fired;' did any one come
out with you? No one with me, s sir. You
are confident that there was no one with you ?
Yes, sir.. Did you find any one on the balcony
when you went out ? No, sir Was it you
that reported the negro was dead ? I came back
and mentioned the negro was shot. Did you
say anything from that balcony ? Not a word.
L was not there a second scarcely. Was Major
McRae in the room when you returned, occupying
the same spot? Yes, sir. Did you leave him
in the room when you .left there ? I was with
him, I think, when he went down. It was some
minutes after the firing before we came down ; it
is my impression we came down |together, but I
am not sure about that. I know that several of
us came down together. You are sure that he
did not leave the room before the pistol fired ?
No, sir.
Counsel for the accused declined to cross-examine
the witness.
The Judge Advocate asked the permission of the
Commission to enter a Nolle Prosequi in the case of
Duncan G. McRae. The Commission was cleared
for deliberation, and after some time so spent, the
doors were again opened, and the Judge Advocate
announced that the Commission had granted the
permission asked by the Judge Advocase to enter
a Nolle Prosequi in the case of Defendant Duncan
G. McRae, and he was thereupon-discharged.
On motion, the Commission adjourned to meet
on Tuesday, 30th inst., at 11 o'clock^A. M.
Raleigh, N. C., July 30,1867, 11 A. M.
The Commission met pursuant to adjournment-
Present, all the members of the Commission, the
Judge Advocate, the counsel for the prosecution,
all the accused and their Counsel.
The reading cf the testimony taken yesterday
was waived, no objection being made thereto.
The Judge Advocate asked the Commission for
a compulsory process against witnesses William
Porter, Duncan McLean, William H. Carpenter,
James Kendricks and Owen Moore, several days
having elapsed since the date on which they were
summoned to appeal-.
The Commission was cleared for deliberation,
and after sometime so spent, the doors were re-
opened and the Judge Advocate announced that
the Commission had granted the compulsory pro-
cess asked for, in the cases of William Porter,
Duncan McLean. W. H. Carpenter, Jas. Kendricks
and Owen Moore.
Calvin Hunter, a witness for the prosecution,
after having been first duly sworn, testified as fol-
lows:
Examined by the Counsel for the prosecution:
What is your name ? Calvin Hunter. Where
do you live? Eayetteville. Did you live
thereat the beginning of this year? Yes, sir.
How long had you been living .there? I leit
here when Gov.. Holmes did. And went to Paj -
etteville? Yes, sir. You have been Irving
there ever since? Yes, sir, with the exception
of seven months and a half when I went to Rich-
CONVENED AT RALEIGH, NORTH CAROLINA.
45
mond, Va., in the time of the war. Do you re-
member the day Archy Beebee was killed ? I
•do, sir. What is your business in Fayettevi'le ?
Boat carpenter. Do you work at your trade?
Yes, sir, daily. You say you knew Archy Bee-
bee ? I knew him. When did you see him
last alive? On the 11th of February, in the
morning—no, in the aiternoon a little, he was car
ried by the officers up to the inarkst house from
the guard house. Haw came you to be at the
the market house.that day? what time did
you go up? I went up town soon in the morn-
ing and my wife told me— You must not tell
what any one said to you. You went up early in
the morning ? I did, sir. Were you up town
all day ? I was until the time I saw Archy kill-
ed. Where did jou go to first ? I went to
William Jordan's. Where did you go from
there ? I went up to Mr-. Hinsdale's corner.
Did you remain there sometime ? About three
quarters of an hour, to the best of my knowledge.
Were you standing there when Archy was brought
out ot the guard house ? I was not. Where
twere you standing when Archy was brought out
ot the guard house ? .Betwixt Mr. Draughon's
corner and the market house. Where does
Draughon's store stand? "Upon the southeast
corner of the market house. Do you have to
pass by Draughon's store to goto the guard house
from the market house ? Yes, sir, when you go
from the Main street When you go from the
market house to the guard house you pass by
Draughon's store ? Yes,sir. You were stand-
ing there when Archy was brought out of the
guard house ? I was in the street. Not on
the side walk ? No, sir, I was not. Did you
see Archy brought out of the guard house ? I
saw him brought out. Who was with him?
Mr. Wemyss and Faircloth, and some behind, but
I didn't notice who they were. Was there any
crowd at the market house at that time. Just
standing about talking a few, I didn't see much of a
crowd. Not when Archy was brought out of
the guard house ? No, sir, I didn't see much
©fa crowd. Was he brought by you? Pass-
ed me, I was sort of to his left as he was going
to the market house. He was brought right
by you where you were standing? Y"es, sir.
Wh^t became of him ? He was carried up in-
to the market house. Where did you move to.
after he went up-stairs? I-moved up on the
pavement uear a woman, that.sells cakes, by the
name of Becky Jenkins. Inside of the market
house? No, sir, on the outside. There is a
shelving there, and old hooks, and I leaned
against them. On the east lront ? On the
south side there, the stall shows towards Mr.
Draughon's. Were you looking into the mar-
ket house ? I was not when Archy come in;
after he went-tip -stabs and was out of my sight,
I was looking to the people standing there.
But where was your face turned, were you look-
ing inside of the market house? Yes, sir.
Did any crowd gather there while Archy was up
stairs? One or two come about, but they
didn't make any thick crowd at that time. How
many men do you suppose inside of the market
house, while Archy was up stairs 1 There
might have been four or five or six, seated on a
bench, and some standing. You don't think
there were more than four or five? I don't
think there was. How long was Archy up
stairs ? I can't tell how long he was up there.
Yon can't come somewhere near it? No, sir,
I cannot, to be accurate. What time of day
was it when he was carried up steirs ? Archy
was carried there, if my memory serves me
right—it was in the afternoon, because I bad left
there about 10 o'clock, and bought me a pair of
pantaloons, and they told me to come to. dinner
then. You think it was after dinner? 1
knew it was. Didn't you think at first it was
in the forenoon? I did, the day was short—
but I think it was in jhe afternoon. Did you
notice any crowd outside of the market house,
while Archy was up stairs ? Not until after the
trial. Not till after he came down ? No,
sir. You say you cannot tell how long he was
upstairs? did you notice who was standing in-
side of the market house, those five -or six min-
utes you speak of? 1 did, no%, sir. Did you
notice anybody standing around there at that
time? I saw a young man called Monk Jule.
Do you see him here ? Yonder he is, sir, over
yonder. You saw that man there ? Yes, sir,
I did. What was he doing ? He had a knile
out, cutting a stick. Iuside' of-the market
house? In the middle aisle of the market house.
Was he saying anything? I didn't hear him,
I didn't hear any conversation by any body.
Did you notice anybody doing anything ? Notli-
ing at all. Just standing about? Yes, sir,
any more than talking as usual. Who did you
see standing and talking ? I saw John Maults-
by for one. Where was be standing ? He was
standing near Mr. Tompkins stall, just under the
north of the market house. Did you notice any
one else that you can recollect ? No, sir. Did
you see Miss Massey that day? Yes, sir, I did.
Where were you standing when she came down ?
I was standing outside in front of Becky's stall,
outside of the market house, towards Mr. Draugh-
on's. She bad a veil on. It was her and another
lady. Did you say she came down before Archy
was brought down or afterwards ? Before Archy
sir.
The witness here points out upon the "plan of
the market house" the position he occupied
while the young lady came down stairs; on the
south side near the east corner.
What became of Miss Massey when she came
down stairs ? She goes right down the street
like as if she was going to liberty point. Did
6he walk down ? No, sir, 6ke went in a vehicle.
She got in the carriage first? Yes, sir. Who
helped her in the carriage, did anybody ? Yes,
sir. Who ? A gentleman by the name of Mr.
Yann, the town constable. Did any one else-
assist her in getting in the carriage ? There
was another gentleman, but I disremember who
be was. Yon think there were only two?
There was only two, to the best of my knowledge.
That is your recollection ? Yes, sir, only two.
How long after that carriage bad driven off, be-
fore you saw Archy come out of this door on the
stairs. I suppose betwixt eight or ten or fif-
teen minutes. Between eight and fifteen min
utes ? I think so. When he came out of the
door who came first ? There were some boys
up on the bench before me, and I could just see
their heads, and I could not tell who came first.
Whof were those boys ? I didn't know them,
little white boys—I could not see ihem till they
got down on the second 6tep. ' Who was on
that step? Mr. Wemyss and Archy. Any
body else ? Faircloth was a little to the right
of Mr. Wemysss, coming down, after he got so
that I could Ace them. Where was Wemyss
standing with regard to Archy ? Mr. Wemyss
was standing upon the right of Archy and I saw,
when I peered through, I saw he had a twitch
around his thumb, and a little stick, to take hold
of. Did you see Sheriff Hardie at all at that
time? I did. Where was be? He was
right in front of Mr. Wemyss, and as they got, to
the'best of my knowledge, about five or six-feet
44
PROCEEDINGS OP A MILITARY COMMISSION,
from off the steps. Before they turned out of
the market house ? Yes, sir. There was a rush
made, like, and I heard Mr. Hardie say " you
don't do it," and "stand off" and the crowd
commenced to rush up, and begin to push me
sort of back out of the wayand I run around.
To which side? To the eastern side of the
market house. "Where did you stand then ?
I stood near the center of the market house,
about ten feet from under the piazza of the mar-
ket house. You stood off of the pavement?
Yes, Sir. When this rush took place you run
around, and got to the front of the market house ?
I did. Did you see who Hardie was talking to
when he said what he did ? I understood it to
be Mr. Tom Powers. Did you see him at that
time? I did. What was he doing? He
was in the crowd; and I saw two knives, and I
could not tell who had the knives when the push
was made to Monk Julia, and he ran out of the
crowd, as if he wanted to get another chance, and
I stepped off again and said, " come away Sandy,"
and they scuffled then and got around to the point
of the market house. who is Sandy ? Sandy
McLean, is a man that lives in Fayetteville. Was
he there with you that day ? He was, sir. Did
you hear Powers say anything ? I took it to be
his voice demanded the prisoner. Do you know
his voice? I should think I would, but there
being so many, I would not swear. You saw
him in the crowd? I did; he was pressing for-
ward. What position was he in; were his hands
extended—did he have any weapons ? I didn't
sec any weapons. You didn't see him have any
weauons?' I did not, sir. What was he do-
ing with his hands ? He appeared like he was
trying to get to Arcliy. Was he grabbling at
him ? Trying to get in where he was. After
t hey turned the corner of the market house, what
happened then ? After they turned the corner
of the market house, the crowd commenced to
get thick, and somebody flung his hand up so,
and said, " clear the way," and give me a shove,
and shoved me out from a view of the prisoner,
and before I recovered, the pistol fired, and I
could not tell who done it. You saw the pis-
tol ? I saw the pistol over the crowd—over
their shoulders. You were pushed aside and
your vision turned from towards the pistol ? Yes,
sir, and before I recovered, the pistol was fired.
Did you see where the smoke came from ? Of
course I saw the smoke. Where was the smoke,
near the point where you had seen the pistol ?
Near about the place. You heard the report
and saw the smoke? Yes, sir. Did you
notice who was standing near that point? I
did not, sir. Did you notice Archy after the
pistol tired ? I didn't until I could get up to
him, he was down then. Where must the man
have been standing, that had the pistol ? He
was standing right in front of me. Was he on
the pavement or off? On the pavement, near
the edge of the market house. You think he
was standing on the pavement, in front of you,
near the edge? Yes, sir. You judge that
from what you saw of the pistol, the arm that
held it? Yes, sir. You could not pretend to
ideutify him ? I could not, upon oath. \ Did
you see Archy immediately after that ? I did
in a few minutes. Was he alive or dead ? He
was near about dead, they said he was not quite
dead. Where was his wound ? Eight in the
left side of his head, right behind his ear, his blood
was running out on the pavement. Did you
sec Captain Tolar that day, at all ? I saw Mr.
Tolar. What time? I saw him about the
time the pistol fired. Where was he stand-
ing then ? He was coming out of the
crowd, and turning the corner of the pier, where
they come out of the market house. He went
out of the crowd and went to Mr. Hinsdales.
Through the market house? He went in at the
east end of the market house, and right out of the
west. And went to Mr. Hinsdale's store ? Yes,
sir. Did you see him after that? I didn't.
Where was the point where you first saw Mr. T o-
lar—how far from the arch ? Well, I suppose
about five or six feet when I first saw him. Was
it anywhere near the spot where you had seen the
pistol before ? No, sir, because lie had moved,
the pistol was about a yard from where I saw Mr,
Tolar afterwards, it was about that close, (repre-
seating about a yard.) It was six or eight feet
from the point where you saw the pistol? It
was about three or four feet, to the best of my
knowledge. Did he say anything ? I didn't
hear him. How was he dressed? He had a
gray shawl,—and for pants and coat, I didn't take
notice, because he had a shawl od. Did you see
Ed. Powers there that day. I did sir. Where
was h e when you saw him ? He was near the
pier where Mr. Tolar went up to. On the pave-
ment ? Yes Sir. Did you notice any one else
in the crowd near Mr. Tolar ? I saw Mr. Sam-
uel Phillips, he was near right in front of me.
Between you and the point where the pistol was
fired ? Yes, sir. How near were you to Sam.
Phillips ? After the pistol fired he moved—I
suppose he was about six feet from me. How
far were you from the place where you saw the
pistol ? I think I was from five to six feet.
Was Phillips between you andthat point ? Yes,
sir, off to my left like. I thought you said he
was in front ? He was in front of me,.a little to
the left. Was he between you and the point
you saw the pistol ? Not directly, sir. Did
you see him have ?any weapons? I did not, sir.
Is that all you know about this subject? That
is all I know, sir.
Cross examination by the counsel for the accu-
sed:
Calvin, how old are you ? I asked Msjor
Holmes a few days before I come here, and he
told me, that I was fifty-five years of age orfifty-
six. When was it, that you went off with Gov.
Holmes ? I can't tell indeed to save my life.
You went off, yon are sure, with Gov. Holmes?
I did. .How old were you at the time? I
"dont know, sir. Were you a man gi-own ? No,
sir. Sixteen or seventeen years ? I could not
tell to save my life. Were you a small boy ? I was
a boy. A small boy or a large one ? I have
no particular size to give you, I know I was a boy.
You went up town, you say, oa the morning that
Archy Beebee was killed? Yes, sir. You
went to Mr. Jordan's ? I did, sir. What did
Mr. Jordan keep ? He kept a store in front and
a bar room back. Did you go into the front,
and then go back into the bar room ? I did do
it, sir. How many drinks did you ta ke that d ay?
I took only one at Jordan's in the morning. Did
you take any more? I did not, sir. About
what time was it when you went up to Jordan's ?
It was a little after sunrise. When was it you
took the drink ? Directly after going there—in
about ten minutes, I suppose* And you took no
other liquor that day ? Nor sir. You are
given to drink pretty freely 1 1 do when 1 feel
like it, in cold weather. That was a pretty cold
day ? It was not so very cold, but 1 felt like
it, and I took some that morning. Now Calvin,
how long had you been up town—you say you got
there about sunrise—how long had you been up
town before Archy Beebee was brought out of the
guard house ? I didn't have any watch, and I
didn't notice the time. I will ask you the ques- •
CONVENED AT RALEIGH, NORTH CAROLINA.
45
tion, whether you have said all along in. talking
about this matter—whether you have not all along
said that itwas before twelve o'clock that Archy
Beebee was brought up to the market house?
Well, the pantaloons corrected me. » Answer my
question—have not you all along from that time,
the 11th of February, up to to-day—havn't you
always said, in conversation about this matter,
that it was before twelve o'clock ? I
told them it had slipped my brains. Have you
said that, or not? I have said it because I was
not correct exactly then. When did you find
out it was not correct ? I found it out the other
day. I sent for my pantaloons, and I received a
few lines from m v wife, and 1 had a piece of paper
there, and I told'my wife to look on that piece of
paper and see what day that paper was made out—
it was a due bill. I ask you, Calvin, if you ever
found out that itwas after twelve o'clock that
Beebee was brought there till you came up here
as a witness in this case, yes or no. I always
like to be correct, sir; I don't like to speak too
fast, I might have said that, not having the cor-
rect time. I understand you to say you never
did find out until after you got up here in Ral-
eigh. I found out by my paper; if I was
wrong I had a right to . be put right again. Did
you find that out before you got to Raleigh, or
after you got to Raleigh ? After I got to Ral-
eigh, of course. I ask you if you ever found
out that it was not before twelve o'clock until
you had talked with the other witnesses? I
never talked withjthem about the matter—every
man kept his evidence to himself. You were
sworn about this matter once before, were you
not? I was sir, before the Bureau there.
Were you not sworn before the coroners inquest?
I was. I ask you if you did not state at that,
time, when you were before the coroners jury,
that you did not see anything like a pistol on that
occasion? No sir, I didn't tell them so.
Didn't you tell them you didn't know anything
about it ? They would not have summoned me
the second time if they heard me say that. Just
auswer my question? I told them I didn't
know who it was shot the pistol. Didn't you
swear before the coroner's jury that you didn't
know anything about the shooting ? No sir, I
did not, I said I see the pistol. You spoke just
now about some persons being up on a bench,
about the time Archy came down—do you mean
the bench that runs along the south-front of the
market house? Yes, sir, right where Becky
Jenkins' sells—the outside bench. Notjthe in-
side bench? No sir, where they lay beef on.
And you say there were some boys on that bench?
Yes, sir. Three or four boys? Yes, sir,
And they were the persons who called out,
" watch out, here he comes ? " The boys said
they were coming. And it was the boys on the
bench outside of the market house, and not any-
body or that bench in the market house ? No,
sir, I heard nobody in there said so. You say
when Miss Massey and her mother came down,
they went to this vehicle. Where was this ve-
hide ? It was standing on the eastern side of
the market house ? On the pavement ? No,
sir. In the street near the pavement? No,
sir. How far from the pavement? I sup-
pose some twenty feet. You say you saw there,
Mr. Bond? Mr. Vaun. Did you see anybody
else there? There was a gentleman, but I didn't
notice who it was. Was that Mr. Phil. Taylor?
It might have been him—one went right in front
of the lady. See if you can recollect whether
or not you saw Mr. Phil. Taylor and Mr. David
Cashwell there? I don't think I did notice
them. Did you notice anything unusual at the
carriage? No sir, nothing at all. Nothing
that attracted your attention ? No, sir. When
the carriage drove off you didn't see which way
it went ? I did, sir. Which way did it go ?
It went right down the main street. Right
down Person street ? Right down the street
from the market house. How far down that
street did you see it go ? The last time 1 saw
it, it was near Mr. Wesley Letts' alley. . You
noticed the carriage until it got down that
far, did you? Yes, sir. That is a hun-
dred yards from the market house? Yes,
sir. Did you watch the carriage until it
fot a hundred yards ? I did from first till last,
knew it was the carriage, for there was no other
in sight. You spoke about seeing Capt. Tolar ;
are you sure Gapt. Tolar had on a shawl ? He
did. Did you notice the shawl particularly ?
Not particularly. Are you certain that it was a
gray shawl—was not it a black shawl ? , No, sir.
Was it a gray shawl ? It was a kind of gray;
but it was not so light as some shawls, a dim gray
and a black streak around the border. Was it
what they call a dark gray or a light gray shawl ?
A little darker than a common gray. It was
what you would call an iron gray ? . An iron
gray is pretty light. It was darker than an iron
gray? A little bit. You are sure it was
gray ? I know it was gray, or something to that
effect. I didn't put my hand on it to examine it.
You saw Sam. Phillips there? I did see him.
How far was he from Tolar ? When I got be-
side Tolar, it appeared as if it was some three feet.
He was standing in front of me, a little more to
one side. Was Phillips to Tolar's right hand or
left ? He was to his left. Three feet from
him ? Yes, sir. What did you hear Phillip*
say on that occasion ? 1 never heard him say a
word sir. Were you looking at Phillips ? Just
a moment or so. I paid no strict attention to him.
Do you swear, before this Court, that this pistol
you saw was not in the hands of Phillips ? I do
not swear it. I ask you if the pistol you saw
raised in that way was not just about the point in
the crowd that Samuel Phillips was standing ?
Yes. sir; itwas. I ask you if Phillips did not
have on a gray shawl ? I didn't sea him, he
didn't have on no shawl then. You are certain
of it? Not when he was standing before me.
Well, while you were there about the market
house, did you see any conversation take place be-
tween Ed. Powers and Tolar ? I did not, sir.
Did you see them more than one® that day—Ed.
Powers or Capt. Tolar ? No, sir. When Ar-
chy was brought down from the market house,,
did you see any body on that bench, which was on
the left hand side of Becky Ben's stall as you go-
up stairs, on the inside? No, sir; I did not.
You saw nobody there? I did not. Yon
speak of having seen John Maultsby? J did.
What was John doiBg? He was standing on
the pavement when 1 saw him. Where? Near
that bench, right at the end, as you come from up
stairs, before Archy came down. Did you see
him about the time Archy came down? No,
sir; he had got out of my sight* Then he was
not near that bench at the time Archy came down ?
Not that I saw. And after the shooting you say
you saw Capt. Tolar some distance off from where
you had noticed the pistol? Yes, sir. And
you saw Sam Phillips just about the same place ?
A little off to the left of me but just in front. And
that Tolar turned and went through the eastern
arch of the market 'house, and out of the western
arch, and went up to Mr. Hinsdale's store ?
Yes, sir; he went through the arch. Now Cal-
vin, let us get positions. When you moved around
on the east side of the market house, were you on
46
PROCEEDINGS OE A MILITAKT COimrSSIOX,
the pavement or off the pavement ? I had moved.
I mean the time that Arohy was shot—were you
then on t&e pavement ? I was off the pavement
sir. How many feet off from the pavement?
Eight at the edge of the pavement. Were you
nearly opposite the main arch ? No sir; a little
down to the South, to the corner of the market
house. Were you nearer opposite the small
arch? About opposite the small arch. About
the middle of the small arch ? Not that far down.
Near about the upper portion of the Small arch ?
Yes, sir. Well then you say Tolar was standing
on the pavement ? He was not standing at all
when I saw him. What was he doing? He
was in the act of going out; the pistol had fired;
So that you didn't see Tolar at all until after the
pistol had fired ? I didn't see him. I will ask
you the question whether it is not your impression
that Tolar was not the man that shot the pistol
that day ? That is not for me to say sir. I
just want your impression, from what you saw, and
not from what you heard? After the pistol
■fired he was not near where the pistol was, be-
cause he had moved, and even if he had not moved
I could not tell anything about it. That is out of
my reach. Then you have no impression about
it ? ; No, sir., it was an excitement, and so I will
leave the subject. You will leave the subject ?
Yes, sir. How far was Sam Phillips off from
Archy Beebee at the time the pistol was fired ?
I suppose he was about some six or seven feet,
there was a crowd betwixt him and there. How
far was Phillips off'from you at the time the pistol
Was fired? He was about some three feet from
me—pff to my left—but nearly in front like. Was
there anybody between Phillips and Beebee at the
the time the pistol was fired ? There was sever-
al heads. Hid you see these heads dodge out of
the way ? I did not particular. Did not par-
ticular ? No, sir ; I did not. Were there
more people standing between where Tolar was
seen by you,' directly after the pistol was fired,
were there more people standing between that
place and Bebee or were there more people be
tween Phillips and Beebee? There was more
between Tolar and Beebee than there was between
Phillips and Beebee. They came in us though
they were shoved in. How long do you think
it was between the time you were shoved aside and
the time you recovered yourself? I recovered in
a second. Did you then look right at Captain To-
iar? I did. Did you see any pistol in his
hands at that time ? I did not. Who was
standing near Capt. Tolar at that time? There
was several. On Tolar's left hand ? I could
not fell. Anybody that you knew. No, sir;
any more than Sam Phillips and other heads, I
did not notice. Did you see, anvthing of John
Armstrong there ? I did. Was he standing
near Uapt. Tolar at that time ? Not when I saw
him, that was before the shooting. I mean af-
ter the pistol was fired ? I-didn't see John then
until I heard his mouth under the market house.
When the man shot, you didn't see John Arm-
strong any where near Tolar, but you heard him
talking under the market house—you heard his
mouth? Yes, sir. You mean Armstrong was
under the market house? Yes, sir; I heard
his jawing there. I didn't know what he
was jawing about. After the pistol was fired
did you see whether Tolar's shawl had fallen off
of him ? I did not. Did you see him throw
iiis shawl back? I did not. Did he do any-
thing of the sort ? Not that I know of. And
you were looking at him ? I was not looking
particular at Mr. Tolar. I think I understood
you to say that while you were standing on the
outside of the market house, about the time that
Archy came down stairs, you could see all of that
bench on the inside? I could not while the
boys were upon it. I mean the bench inside ?
Well I don't think I could see all of it.
Re-direct Examination, by the Counsel for the
prosecution.
I understand you to say it lias been your im-
pression until very lately that this killing took
place before twelve o'clock ? I did, but I had
made a mistake, on account of my not paying at-
tention. That was your impression until very
lately? Until I corrected myself. You are
satisfied now that you were wrong ? Yes, 6ir,
I was wrong.
Counsel for the accused.
I forgot to ask a question in the cross examina-
tion, which I will ask now with your permission.
Counsel for the prosecution did not object.
Cross examination resumed by the Counsel for
the accused.
What time of day was it, now, as you recollect
it, that Archy was brought to the market house ?
Betwixt two and three o'clock.
Re-direct examination resumed, by the Coun-
sel for the pro&cntion.
I understand you to say you were examined
before the Coroner's jury ? I was sir. Did
you give the same statement there you do now ?
I did as far as the pistol was concerned. You
did as far as the firing of the pistol was concern-
ed? Yes, sir. They only asked me did I see
who shot, and I told them I did not. That was
the only question they asked you ? Yes, sir.
Were you alarmed that day? I was a little, at
the firing of the pistol. Were you on the day
of that examination ? No, sir, I was not par-
ticularly. You were simply asked that one
question, it you knew who fired the pistol ? Yes,
sir. And you were put aside? Yes, sir.
What was it that these boys cried out when Archy
was eoming down stairs? " There they come"
How many of these boys said that ? There was
three or four of them. Did they cry out loud ?
Just ordinary. I can't understand clearly where
you were standing when this pistol was fired—at
the time you saw the pistol you got a shove ?
Yes, sir. How far were you shoved ? I was
just shoved up against another man and I stag-
gered. You didn't alter your position ? I
did not. When you recovered you were near
the same place ? .Yes, sir. Where were you
standing, on the ground off the pavement ? I
was off the pavement. Near the edge of the
pavement? Yes, sir, opposite the upper end
of the small arch at the eastern side of the
market. Were you past the pier that
connects the arches ? About the far edge
of the pier, I was standing near there.
Were you facing the market house. No,
sir, I was looking right at the guard following
up Archy. You were turned a little towards the
south? I turned my face towards the south
watching Archy. How far was that pistol from
you when you were in that position ? Three or
four feet. In front of you ? Yes, sir. In a
line between you and Archy ? Not directly in a
line. Was it more to the right of the line or to
the left? It was more to the right. Where
was Phillips standing when you saw him ? He
was sort of to my front and left? The pistol
was to the right of the line from you to Arohy and
Phillips was to the left of the line from you to
Archy ? Yes, sir. If Phillips had eeen stand-
ing where you saw him stand could that pistol
have been in bis hand as you saw !t? It looked
as if the pistol had been fired from that position
it would have killed Mr. Hardie. Ycu saw the
pistol ? I .did when it weut up. Do you
CONVENED AT RALEIGH, NORTH CAROLINAv
47
know whether it was in Phillips' hand or over
Phillips' head? It was not. Was it in the
direction where you saw Phillips standing ? It
was to my right, Phillips stoedmore to my left.
Phillips wa3 to yonr left, and this pistol was to
, your right? Yes, sir. How far was Phillips
from the point where you saw the pistol ? It
might have been three or four feet. You speak
of having heard Armstrong's mouth under the
market house? I did, sir. When was that?
That was after Archy was shot down a second or
so—a minute I mean. It was not at the time the
pistol was fired ? Ho, sir. Was it before or
after you saw Tolar ? It was after.- Mr. Tolar
was gone when you heard that voice ? Yes, sir.
Tolar had appeared and departed before you heard
John's voice? He had departed, but I didn't
see him appear. You had to see him before he
departed? I did. I heard John directly after-
wards. ^ How much of a crowd was there there
when the'pistol fired—how many men do you sup-
pose % As soon as ever Archy come down I
looked and it was just like a parcel of bees.
How many men do you suppose there was in that
crowd? I suppose there'was some forty,or
fifty more or less, I am not prepared to tell you.
There was a considerable crowd ? There was
a right smart crowd. How many men were
there between the point you saw the pistol and
and where you were standing ? There were
several, as many as could get in it seemed to me.
Was the crowd packed in as tight as they could
be? They were a3 many as could get in it
seemed—there was enough. Didn't I under-
stand you to say that just as you received this
sheve you heard some one say "clear the way"—?
I did—I didn't know who it was. It was ttie
ru3h of the crowd—when the cry of clear the way
was given that shoved you aside? The pistol
went up then I got a shove, and just as he got
the pistol up over his head they said clear the
way and gave me a shove, and before I recognised
the pistof was fired. How far was it from the
spot where you first saw Tolar, to the spot where
you saw the pietol? From where I first spied
Mr. Tolarl suppose it was three or four feet.. He
was in motion when you first saw him. Yes,
sir. He was not standing still ? No, sir
He was going out of the crowd and going into-
the market house ? Yes, sir, he was going out
from the crowd. How many people were
there between the point where you saw the pis-
tol and Beebee? how far was Beebee from the
point where you saw the pistol? He was about
three feet. How many people were between
the point where you saw that pistol and Bebee?
"YYell, they 6tood in such a way I could not see.
Less than three feet was the point where you
saw the pistol, from Archy's head ? Yes, sir.
Now, when was it when you saw Phillips ? I
saw Phillips before the pistol fired ? And
how far was he from Bebee? He was there
about four or five or six feet. He was further
from Bebee than the point where you saw the
pistol was from Beebee ? They were not the
same direction ? Yes, sir, he was further. And
they were not the same points' at all ? No, sir.
And Phillips was further from Beebee than the
point where you saw the pistol ? Yes, sir. I
understand you to say Phillips was closerto Bee-
bee than Tolar was after the pistol was fired ?
No, sir, because when I saw Mr. Tolar he was
going away,—no-, Mr.Phillips was further off, he-
cause Tolar had just left about four feet. Af-
ter he had moved off four feet Tolar was closer
to Beebee than Phillips was ? I suppose he
was.
FvObert Sin HONS, a witness for the prosecu-
tion after having been first duly sworn, testified'
as follows:
What is your name? Robert Simmons.
Where do you live ? In Fayettcville, sir.
What is your occupation there ? I keep a gro-
eery there. Was that your occupation- at the
beginning of the year ? Yes, sir. Did you
know Arcby Beebee ? Yes, sir. When did
yon see him last alive ? I> saw him alive last
about the 11th of last February. Morning or
afternoon ? It was afternoon, sir. Where
did you see him ? what town and near what part
of the town ? He was at the market house.
At the market house, where ? In Fayetteville.
How came you at the market house that
day? what time did you go there? I dis-
remember the time I went there exactly, hut I
think it was between one and two o'clock.
Did you have any-business that carried you up
there? I heard there was going to be a trial,
and I thought I would go and listen to it.
What part of the market house did you go to?
The south end of the market house. You
went under the market house, sir? Yes, sir.
When you got there was Beebee up- stairs i
No, sir. Did you see him when he was brought
into the markethouse ? Yes, sir. Were you
standing under the market house when he was-
brought up to be carried up stairs ? 1 think I
was standing under the market house when he-
was carried up» stairs. Who went up stairs-
with him? Mr. Weitfvss, I think, and Mr.
Faircloth. I think there were some other
persons, I didn't pay much attention. Was
there anybody else beside Mr. Wemyss- and
Mr. Faiicloth. Did you see Sheriff Hardic ? I
did not see him, I disremember, because I was
not studying at that time. You know there-
were more than two ? Yes, sir. You do not
remember who they were? No, sir. How
many people were in the market house when he-
went up stairs ? I don't know how many there-
was—a good many. What was the 6ize of the
crowd ? It was a pretty large crowd. How
many ? I don't know how many. Can't you-
make some sort of an estimate? Not rightly,
from the market inside appeared several, off to-
ward the east corner it was. There was a con-
siderable crowd in the east end? Yes, sir, and
some outside on the pavements like. Yon
were standing underneath ? Yes, sir. Where*
were yon standing? Near the middle. On
the north or south side ? I was standing near
the center of the market house, towards the east
leaning on the bench. What bench was that T
That was Beckie Jenkins' bench—talking to
Beckie and Tom Powers. About the time they*
carried him up? Yes, sir. ' How long was
he up there ? Well, I disremember sir, may he it
was halfan hour or perhaps anhour. Yon cannot
say with any certainty about the time ? No, sir,
it might have been shorter than half an hour.
What were you and Powers talking about?
Well, in the first place we were talking about
this ease that was on hand and what a bad thing
it was—and I told Mr. Powers that I did not
know anything about the young- lady nor about
who done it—it did not concern me at all: but I
knew one thing, her father was a friend of mine
he done me a great favor one time. What did
he have to say about it ? He never said much,
only said it was a shame or something of that
sort, I disremember the words he said now.
How long did you stand there ? I never stood
there very long after they carried him up, I walk-
ed out on the side walk. Did you leave Power&
standing by Becky Ben's stall? I disremember
whether he did or not. Did you notice any-
48
PROCEEDINGS OP A MILITARY COMMISSION,
body else under neath the market house, besides
Powers—anybody you can name. There was
persons there but I did not pay any attention to
them. Did not you see anybody's face that you
can remember? I don't think I could. Did
you see Capt. Tolar at that time ? No, sir.
Did you see Monk Julia there? No, sir.
You can't recollect any face at that time except
Tom Powers ? No, sir. Then shortly after
Archy went up stairs you went out of the market
house/ Yes, sir. At the east-front/ Yes,
sir. ; Wher» did you go then/ I stayed out on
the pavement like/ Did you remain on the
pavement until Archy came down stairs / I
walking about from one place to another, I was
about that pavement all the time. Did you see
or hear anything that attracted your attention
while you were standing out there/ No, sir.
Can you tell any one who was in the crowd that
you noticed then/ Yes, sir, I can tell some.
Who did you see then / I saw Capt. Tolar, he
was not in much of a crowd, he was standing
by himself. Was he underneath the market house
when yon first saw him / He was standing
toward the north corner, near close up to the pil-
liar like. When was the next time you saw him /
I never saw him no more at all. Did you see
him before Archy came down stairs ? Not that
I recollect. Did you notice any one else out
there? Yes, sir; I noticed several. Name
some that you can recollect ? I saw Mr. Ed.
Powers standout there; Sam Hall, Mr. Lutterloh,
Henry Sikes; I don't know who all else I saw.
These men—Ed. Powers and Lutterlohj Sikes and
Hall—were they standing together| or apart; did
you notice them, conversing ? They were just
walking about; perhaps like other persons. I
understand you that Tolar was standing by him-
self? He was, when I first saw him, sir.
Where you were standing; could you see the
steps that Archy came down 1 Yes sir. Did
you see him when he was brought out of the door ?
Yes sir. Did anything happen in the court that
attracted your attention before he was brought out
of the door? Nothing in particular; though
when the Ladies came down, Mr. Bond held the
horses off for them; and he started back to go up
stairs and Mr. Maultsby said ♦' Israel be sure to
attend to what I told you whenyou'get up stairs"
and he says " I will," I don't know how far be got
up the stairs before Maultsby went inside of the
stall where Becky sells, andtnere was some young
boys and he told them to get out of the way; i
thought he was making room for the prisoner and
I never noticed particular. You say after Bond
helped the ladies and was going back, Maultsby
met him and had the conversation you just rela-
ted? Yes, sir. What became of Bond,—did
he get ap in the market house ? I don't know
whether he got up or not. Maultsby went into
Becky Ben's stall and told those lads to get out of
the way; what did he say to them? He told
them to clear the way. Were they in the way
of the prisoner going down ? They were sitting
around; some on the steps and some on the
benches, you know, The prisoner came down
direetly after Maultsby did this ? Yes, sir."
You are not certain whether Bond got up stairs ?
I am not certain. Did you see the prisoner
when he came out of the door / Yes, sir.
Who was with him,—who came out first / I am
not able to say who came out first; I noticed the
prisoner, there was a great rush up to the place
that he was ; a parcel of men there. You could
not tell the position they occupied in the group
around him / No, sir. You noticed there was
a group going down stairs, and Archy was in it,
and about that time there was a rush / Yes,
sir, that was before Archy had come down stairs;
he was almost to the lower step, when I first saw
him. Be was near the foot of the steps when
you saw him/ Yes. sir; then Calvin Johnson
said to me, '"look out! look at the knives, they
are going to kill that fellow;" and I saw a great
crowd of men rush up to the steps where he was
coming down. What happened then ? I
heard the sheriff then holler, men go back or beat
back or something of that sort; I know he said
something to that effect, and the crowd seemed to
be going back a little. Did you hear any ex-
clamations? anybody say anything beside the
sheriff/ No, sir. Did you see any of these
prisoners at that time / Yes, sir, some of them.
Who did you see/ I saw Mr. Powers and Mr.
Monk Julius. Did you see Capt. Tolar at that time/
I did not see him at that time. You saw Powers
and Monk Julia in the crowd near the prisoner,
there at the foot of the steps ? Yes, sir. Did
you see any weapons at that time in the hands of
any one ? I saw Mr. Powers have a knife, and
I saw Monk Julia have a knife. What sort of a
knife did Mr. Powers, have ? It looked like a
small knife. What kind of a knife had Monk ?
It was a small knife. What do you call a small
knife; how long a blade had the knife that Powers
had ? I think it was three or four inches in
length, perhaps. The blade or the knife ? The
blade; it was two and a half or four inches; some-
thing like that. What happened next ? They
did not get to the prisoner at that time; the
Sheriff snd his men seemed to beat them back
and the Sheriff come on out with the prisoner and
the men, and several turned around the arch; the
rush was made on them again and they went on
near to the south corner of the market. Did
you see anybody that was engaged in that second
rush ? I saw several that were engaged in it;
I don't recollect them all. Name such as you
do recollect ? I recollect Mr. Powers being in
it, and Monk Julia. Which Powers ? Thomas
Powers. Any one else that you recollect ?
Mr. Sikes was in it. Did you see any one else
in the crowd/ Mr. Maultsby was in the crowd.
John Maultsby/ Yes, sir, but I never saw him
do anything. He was in the crowd that was
rushing on them/ Yes, sir. Mr. Maultsby
was not trying to get out of the crowd/ Not
that I saw, sir. Mr. Henry Sikes/ No, sir,
it did not appear like they were trying to get out;
they were with the crowd. They made part of
the crowd/ Yes, sir. They were right in the
crowd. Yes, sir. What happened then that
you saw/ Just before they got to the corner
they rushed on to the Sheriff again and he told his
men to beat back; some person says, "go ahead
Monk," and then some persons said, "shpot
him," " shoot him," or something of that sort;
I saw Captain Tolar walk up and come around on
this way, like on my right, and reached right over
and shot. He passed your right did he / No,
sir, he did notTTass my right; he come right up
to my right, like. Where were you standing at
the moment you saw Captain Tolar; on the pave-
ment or off/ I was standing off. the pavement.
Were you in front of the big arch/ I was on
the south of the big arch. Were you further
south/ Yes, sir. How far were you stand-
ing from the edge of the pavement/ * I don't
know exactly; I might have been standing three
or four or five feet. A step or two/ Yes,
sir. You were standing further south than the
big arch; do you remember the little arch that is
there, there ai*e three arches in front of the market
house/ There are four vacancies that front
south. I am talking about fronting east/ East,
I mean to say. Are you certain that there are
CONVENED AT RALEIGH, NOXITH CAROLINA.
4V»
four ? Yes, sir, liere is a comer, and here is
another arch, and there is two over this side
again, just the same; there is one on each side of
the big arch. I mean the opening: I don't
mean the piilars, you saw three openings, the big
arch and two little arches ? Yes, sir. And
you wei e standing off the pavement a step or
two lacing which way/ Facing the market
house. Yon were standing near the south corner /
Nearly in front of the south corner. The pris-
oner was near the south corner, and now that
was the time you saw Mr. Tolar—where did he
come from ? It looked to me like when the rush
was made from the crowd, I would not have seen
him as soon as I did, but some one shoved against
me and I cast my eyes back upon him, and he came
from the north where he was standing. He
passed you on the right ? He did not pass me ;
he walked right up against me like. Could you
have touched him with your hands? I don't
think I could touch him. Where was he stand-
ing, on the pavement or off ? I don't exactlv
know whether he was on the pavement or off; I
know he was pretty close to the edge of the pave-
ment How far was he from Archy ? He was
not far from him ; it looked as if the muzzle of the
pistol was some two feet, £or something like that
from his head. You know Captain Tolar ? I
know him very well. Yon knew him before
that? Yes, sir. Are you certain he is the
man that fired that pistol ? I am certain.
WhatLsort of pistol was it? It was a farge
Navy pistol. You saw him level it and fire ?
Yes, sir. Did you see what became of Archy
after the firing ? Archy fell. Did you see
what .became of Captain Tolar after the firing,
and what became of the pistol ? I did not see
what he did with the pistol; I turned right off
and went to Mr. Davis's. Mr. Davis, and Captain
Green and Mr, Dodd were standing there. It sort
of frightened me, and I said . Don't tell
your conversation. He turned and went off?
Yes, sir. Y ou did not see what became of Cap-
tain Tolar? When I got to Mr, Davis's Mr.
Tolar had ^turned around ; his back was turned
towards the arch, aud he was standing talking to
some gentlemen. Did you notice how long he
stayed there? No, sir. Was he standing
there the last time you saw him that evening ?
Yes, sir. Who was standing nearest him when
he fired the piscol ? 1 disremember, sir. Can't
you tali any one ? I don't know. Did you
see John Armstrong that evening at the time Tolar
tired the pistol? Yes, sir, he was standing a
little Vo my right. Between you and Tolar?
Yes, sir. He was standing nearer to Tolar than
you? Yes, sir. Did you see Sam Phillips
that evening ? Yes, sir. About the time the
pistol was fired ? Yes, sir. Where was be
standing ? If my memory serves me right, he
was there near the arch when I first saw him, I
think it was about the time the word was said,
" shoot him." I east my eyes that way, and I saw
Mr. Phillips with his pistol in his hand, like if he
was cocking it, but he never raised it any higher.
That was about the time the pistol was fired?
Yes sir. Your impression was he was near the
arch of the market house ? Yes, sir. My mem-
ory may have slipped, but I think he wras near the
arch; he says he was not, but I think he was.
Your opinion is that he was. Yes, sir. That
he wa3 next the arch, and that he was there about
the time the pistol was fired? In such an ex-
citement it may be my memory slipped, but I
thins he was standing there. Did you see him
hi e that pistol he had in his hand that day ? N o,
sir. Did you look at the pistol at all ? did you
examine it that day ? No, sir; but 1 know be
did not fire it. You are certain that it was not
his pistol that wentoff in the crowd? It was
not his pistol. Was he standing near enough to
Tolar to put his arm under his cloak and fire, as if
it was Tolar fired ? No, sir; there was no arm
under the cloak. Could not. Phillips have put
his hand underneath, and made it look as if it was
Tolar ? Not from where I saw him, sir. You
say you can't say who was near Tolar ? N o, si r,
I don't recollect. Was anybody between him
and Beebee when he fired the pistol ? Yes, sir.
How many persons do you think? There were
some, I don't know how many. Did you see
Beebee fall that day before he was shot? Yes,
sir. Mr. Powers looked over like he wa.3 cutting
at him, and Beebee dodged and sort of went down.
Did Powers have any knife in his hand?
Yes, sir; and Monk he was running around like
he was trying to cut, but he never got a chance ;
he was not nigh enough to reach there, Had
Beebee got up again before he was shot, or was he
shot while he was down? It seemed like the
Sheriff and Mr. Wemyss or some of them raised
him up, as soon as he was raised up he was shot.
Where was Sheriff Hardie standing when Archy
was shot? I don't know exactly his position,
only I know he was right there with the prisoner.
Do you know whether he was behind him or before
him or on the right or left of him ? I don't know
whether he was behind him or before him ; I think
he was a little to the right of him. In front ot"
him or behind? It look to me like he was in
front of him to the right. That was your im-
pression ? Yes, sir. I understand you to say
you are somewhat uncertain a3 to whether he was
close to him ? I ami uncertain as to the position,
it looked to me as if he was clo3e to him. Did
you see Wemyss? Yes, sir, Do you know
where he was standing ? No, sir ; I don't ex-
actly know where he was standing only I know I
saw him have hold of the prisoner ; he had one of
these thumb screws. I want to ask you particu-
larly about Phillips. When he had that pistol; he
had it up high, holding it to take a sight ? lie
had it down in this direction, in his right hand,
laying in his left, (representing.) Did j'ou see
him elevate it at all ? No, sir. Did you no-
tice who he was talking to? No, sir; fori
turned right off.
Cross examination by the Counsel for the ae-
cusnd.
How long have you known Captain Tolar ? I
have known him for eighteen months or two years.
Did you ever have a difficulty with him about a
buggy? No, sir; I never had any difficulty
I bought a buggy at Mr. Cook's sale that he claim-
ed, and I paid him for it. Paid Tolar for it?
I think I paid kirn for it or settled it' through him
and Mr. Cook. You were very angry with
Captain Tolar about that matter? No, sir.
Did not talk to him in an angry manner about it?
No, sir; he said it was his father in-law's buggy,
and I told Mr. Cook he sold me a buggy that oe-
longed to another man. I think I paid Mr. Tolar
for it; I know it was settled between us, and I
did not lose my mcney nor he his. You did
not give up »he buggy until Tolar brought witness-
es to prove it? No, sir; I think I went with
Mr. Tolar to Mr. Cook; I am not certain. Did
not you refuse to show Tolar the buggy when he
came to claim it ? He Came and said Thomas
Drake said.I had his bugy, and I told him if I had
it of course he ought to have it. Did not you
refuse to sbow it to him ? I did not show it to
him until I found out it was his. You did not
have any angry conversation with him on that oc-
casion? No, sir; only I told him if it was his
buggy of course he ought to have it. Have you
50
PROCEEDINGS OP A MILITABYCOMMISSION,
been very active about this matter against Capt.
Tolar in"Fayetteville? No, sir; I have not.—
Hav'nt you been persuading colored men not to
stand by Captain Tolar or not to take his part in
this matter; hav'nt you been persuading John
Merrick not to have anything to do with Tolar;
not to assist him or his family in any way ? No,
sir. You are certain you have not ? Yes, sir;
I swear it. _ When did you tell this story about
Tolar shooting this man first ? The day he done
it How did it happen that you were not before
the coroner's inquest about this matter? Be-
cause they never sent for me sir ; I did not make
myself smart enough to tell I knew any thing about
it until General Avery was up there, some persons
told him I knew it, and he sent for me. Now
let me see—when the young ladies were up stairs,
Miss Massey and her mother, before they cams
down where were you standing ? I was stand-
ing outside on the pavement. Did you see them
comedown? Yes, sir; they come right by me.
Where did they go after passing you ? They
got in a rockaway and went down the street.—
Who helped them in the rockaway ? Mr. Bond I
think,and Mr. Mitchell and Mr.Powers. Was there
any body else beside Mr. Bond and Mr. Mitchell ?
Mr.Powers, Which Powers? Thomas. Was
there any body else ? There might have been.
Did you see Phil. Taylor or David Cashwell ?
They might have been there. I might have
been there but was not;—were they there or not.
They might have been there;—I don't know
whether they were or not. Who was driving
that rockaway? A black man. What is his
name ? I don't know, sir. Did you know
him? No, sir. Where did he drive it after
these ladies got into it. He went down the
street and I think he turned around the corner by
Mr. McGriffin's. You think he went down Per-
son street? I know he went down that street.
Not down Gillepsie street towards Robert Mitch-
el's store ? Not at that time. You feel confi
dent of that? Yes, sir. You say when Bond
turned off Maultsby said what you have told?
Mr. Bond after helping the ladies in the carriage
turned around and started up to the market house
end Mr. Maultsby said, Israel don't forget to at-
tend to that business I told you; he said, I will.
Mr. Bond started up as if he was going up stairs.
How long was it after Bond went up before Archy
Beebee was brought down ? It was not ■ any
time hardly. When Archy Beebee first ap-
peared coming down the stairs where were you
standing? I was standing out on the sidewalk
like. Standing still on the sidewalk ? Yes,
sir.. Did yog have a good view of him? Yes,
sir. Could you see the foot of the stairs and
those benches around Becky Ben's stall? When
he got down low enough to see I was not looking
exactly at him, then, I was looking off in the
street;—Calvin Johnson touched me and said look
at the knives and then I got back off of the side-
walk. At the time Archy came down so that
you could first see him could you then see the
crov* d that was around Becky Ben's stall and the
benches that were about Becky Ben's stall? At
• what time ? At the time that Archy Beebee
was first seen by you coming down the steps. If
I had been looking at him I could. When you
were looking through the main arch and looking to
the top of the steps whfere Beebee first appeared
would not that bench—that bench standing on the
left hand side of Becky Ben's stall—would not that
bench be directly in the line that you were look-
ing? Gut towards the market house. You
don t understand about the bench—it is the bench
en the left hand side.
(The witness explains his position and that of
•the bench on the left hand side.)
See if I understand you; standing where yotr
were at the time Beebee made his first appearance
coming down the steps and looking at him, that
bench which runs along by Becky Ben's stall you
could see? Do you mean tbe inside bench?
Yes; you could see that? Yes, sir; I could
see that bench. Was not that bench directly
in a line with your eye when yon were looking
from your position towards the upper part of the
market house steps? Looking through the
market house westward the bench stands west
and East; the steps of course, was more south;
I looked right between tbe end of tbe bench and
the pillar of course, in looking through to the
steps. Could you see the bench? Of course
there was nothing between me and the bench.
Now at that time when the prisoner Beebee bad
got to tbe steps of the market house did anybody
jump up on that bench? Well; if he did I did
not see it to notice it. But that bench was di--
rectly in your eye and you saw no body jump up-
on it ? It was directly in my eye and I saw the
bench and steps, but whether any person jumped
upon it—it is always a custom for young men to
jump up on the bench. But you saw nothing
on that occasion ? No, sir. Did you know
John Maultsby ? Yes, sir. Did you see him
j ump up on the bench / If he did I did not no-
tice. Did you hear him say anything at that
time/ Not that I know. Did you see him
anywhere at that time / He was in the crowd
with the other men. Standing on the floor of
the market house/ Yes, sir. You are certain
of that/ Yes, sir, I am eertain, he went in
there. You are certain he wa»standing there /
There was not much standing to do; they went
right in and out; he may have been on the bench
and may not. I understand yon to say you saw
Maultsby at that time / I. saw him go in with
the crowd. Was he on the bench or not / He
was not on the bench; he was under the market
house, and went in between the arch and the
bench. You saw him rush up towards the stairs /
Yes, sii\ You saw Beebee coming down the
stairs/ Yes, sir. He rushed up with the crowd
inside of Becky Ben's stall? Yes, sir. Then he-
was upon the floor- of the market house?
When he went in he was. You mean he might
have jumped on the bench as Beebee was coming
down, but you feel certain thet he did not jump
on the bench when Beebee started down, is that
your testimony ? No sir, I did not say that;
he had been in there before that; he might have
jumped on the bench, I dont't pretend to say.
Now, when you saw Beebee coming down stairs,
who was in front of him, anybody ? Well, sir,
I could not tell particular, because they were low
dbwn; I had my eyes cast ofF towards the street;
about that time I cast my eyes there. It ap-
pears to me they were near on the lower step,
and I could not recognize who was in front of
him or who were behind him. Now, at that
time, did you see anything of Capt. Tolar ? Not
at that time. How many rushes were made at
Beebee before he cleared the arch of the market
house / It did not appear to me like there was
more than one grand rush, then. Did yon see
anything of Tolar in that rush—that is, the first
rush I am speaking of, before he cleared the arch,
I mean before he got out on the pavement/ I
never saw hut one that looked like a grand rush -r
Becky's stall was nearly filled with men, you see.
Then they got Beebee out on the pavement/
Yes, sir. Who was in front of him/ I don't
know who was in front of him. Did you no-
tice the Sheriff at that time/ I noticed the
Sheriff was with him. Did you notice whether
Sheriff Hardie was in front of him or behind
CONVENED AT RALEIGH, NORTH CAROLINA.
Si
him/ I can't say for certain whether he was
in front or behind, only I know he was pretty
close to the prisoner. At that time how far were
you off from the pavement / Perhaps
three or four or five feet, I was not very far.
Were you opposite the center of that main arch,
or were you nearer towards the north of the
main arch ? I was at the south part of this
l>illar that leads to the little arch. You were
north of the pillar then, of the small arch/
Yes, sir. And about four or six feet off from
the pavement/ Somewhere's along there.
Now, who was on your lelt hand side at that
time/ I don't recollect, sir. Who was im-
mediately on your right hand side at that time/
Well, I don't recollect who was exactly on my
right hand side; Calvin Hunter had just left me
to go further off. Where was John Armstrong ?
He was a little further off, I know, because lie
spoke to me as soon as it was done. What did
lie say/ He said ain't that a damned shame.
So he was close on your right/ Yes, sir, he
was close on my right; I think another man was in
between me and John like. How far were you
off lrom Archy Beebee, at the time he was shot ?
Well, I was not very far from him, perhaps four
or live feet—something like that. He had
passed me like, he was down towards the lower
pillar. You say that Beebee fell down or sunk
down in some way,—when he was raised up did
you see him ? Yes, sir. Did you see who
■was with him at that time ? I saw the Sheriff
and policemen. You think the Sheriff was
a little to his right and front. I don't
know exactly the Sheriff's position, only I
know he was pretty near him. Did the Sheriff
have hold of him / It looked to me like he
had hold of him, sir. What part did he have
hold of—his hand, or arm, or body? I don't
think there was many men who was able to tell—
he was so close to him, it looked to me like he
had hold of him, but I don't known where.
Did he have him about the neck / He might
have had him about the neck—of course I never
seed—for I didn't pay any attention. As the
Sheriff was standing in front of him—was the
Sheriff's head turned towards Beebee, or was it
turned down towards the guard house/ It
looks reasonable that it would be turned towards
the guard house. Then it was turned towards
the guard house, and not towards the prisoner.
He might have turned his face around. Then
you say as soon as Beebee was got up you saw
the pistol shot fired/ Yes, sir. You say this
pistol was in the hands of Mr. Tolar/ It was.
Where did Tolar get the pistol/ 1 dob11 know sir.
When he came rushing up, did you see the pistol
in his hands/ When I saw Capt. Tolar, some-
body shoved me, and then Capt* Tolar threw up
his band. Did he have a pistol in his hand
-then / It was all at once, inst as soon as I was
shoved I cast my eyes;—of course he must have
had the pistol in his band. Did he raise the
pistol up and fire at once / . Yes, sir. Did he
take any aim? He raised the pistol up slowly.
Did you seehimcock it/ I didn't see him cock
it, I saw him fire it plain. As soon as Tolar fired,
what did he do then/ He turned right around,
and sort of stopped there, and then he whirled
around. Did he turn from his left or right /
It appeared to me like he turned to his right. Do
you know whether he turned to his left or right/
I don't know for certain about it, sir. Did you
see him have on a shawl/ Yes, sir, What
kind of a shawl / It loo ked to me like a sort of
grayish shawl; Did he throw his shawl off from
his shouldeis/ I never noticed about that, sir.
Do you recollect seeing him, as soon as lie shot,
flirt the shawl back with his right hand. He
might have done it, but if he did, I didn't know it,
sir;—ns soon as he fired the pistol, my attention
was called to the prisoner. I want to know
whether you saw .Capt. Tolar turn off. at all either
to the right hand or to the left, before you started
toward Davis's corner/ Yes, sir. Did you
hear any remark made to Tolar. -by any one ; or
did you hear Tolar make any remark at that time /
No, sir. Now let us see about the position of
Mr. Phillips, did you say Captain Tolar was on the
pavement or off at the time of the shooting? I
did not say-whether be was on or off, but I know
he was pretty c'ose to the edge. Was Beebee
on or off/ He was on it. Near the centre or
near the edge/ 1 think he was near the centre,
sir. Where did you say Sam Phillips was stand-
isg / When my attention was drawed to Mr.
Phillips, I saw him about the time the alarm was
given to shoot; it looked as if be was across from
me next to the pillar. Next to the market
house? Yes, sir. He was to Tolar's light?
He was, if I am not mistaken. Was he directly
to his right 01* to his right and front ? To bis
right and front. Then Phillips was nearer to
Beebee than Tolar was ? When I saw him, buifc
he was on the other side like. And you say when
you first saw Phillips, that he had the pistol in
liis hand ; the breach in his right hand, and the
barrel in his left hand, as if he were cocking it;
was that before or after the shot was fired? It
was about the time this man was shot; but he said
it was not. He has been talking about it to you
has he ? He asked me if I said he hud the pis-
tol, and I told him, I thought so. You and he
have been talking about it several times ? No,
sir ; he asked me what I was going to say about
his having a pistol, and I told him, I was going to
say he had it in his hand at the time Beebee was
shot;—he said he took it out to protect the sheriff ?
That was what Phillips told you. Yes. sir—to
protect the sheriff. To protect him after the pistol
was fired? When did Phillips tell you that;
before he got out of jail ? No, sir—the next
day after the shooting was done ; Mr. Phillips
came to me, and told me, ''Simmons, we are trying
to get up all the colored men who knows anything
about this, to go up to the Bureau and be sworn "
and I said you had your pistol in your hand; you
would have shot him, I expect; and he said I did
not intend to do it; I told him I did not want any-
thing to do with it, and I told him, it looks as if
you wanted to get me to have something to do
with it. Have you bad any talk with Phillips
about the matter in Raleigh since you have been
up here? No, sir—not in particular, In gen-
eral ? No, sir—I have had no talk with him any
more than I would to any other man. Witness,
I ask you the question; if Sam Phillips since he
has been here/ and since he has been released
from jail, has not been to you and talked over
with you that part of his testimony that related to
his having a pistol? Not in paiticular, sir.
Has not he done it all ? Of course he was talk-
ing the same way he was the first time, after this
shooting was done. I am speaking about since
Phillips has been here in Raleigh, and since I have
been in Raleigh ? I say he has only made the
same remarks that he did that day. Has not he
done that several times ? No, sir, not several
times. Two or three times? He might
have made it once ; if he made it twice I
don't recollect it ; he said Louis Smith made a
mistake, and me and Louis was preseht, and
he told me he thought I had made a mis*
take—he said " you to'd me I had had the
pistol before this fellow was killed; I says well;
I say so yet; I say you did. What kind of
a pistol was that, that Sam Phillips had in his
haEd? It looked as if he had the upper paifc
PROCEEDINGS OF A MILITARY COMMISSION,
of it in hie hand; it looked like one of these small
navy pistols. Was it as long as the pistol To-
lar had / No, sir. It did not carry as large
a ball / It might have carried as large a hall,
but it was a shorter pistol. About an ordinary
sized one / An ordinary repeater; I think they
call them navy repeaters. But you'say it was a
smaller pistol than the one Tolar had / Tolar's
was a sort that cavalry carries. And Phillips
was a smaller size.' *Yes, sir. How long was
Tolars pistol / 1 don't know the length of' one
of those pistols. Do you think it was fifteen or
twenty inches in length / No, sir, it might have
been a foot in length; I have never measured one.
What I want to know is, how much longer do
you think the pistol Tolar had, was than the pis-
tol Phillips had/ I can't tell exactly the length.
A diri ere nee of four inches in length? There
might have been a difference of "two inches or
something like that; maybe four inches. Were
you armed on that occasion/ No, sir, I was
not armed. Did you have no arms at all / No,
sir. What were your declarations there that
day, about taking the prisoner Beebee away from
the Sheriff; what did you declare that you would
do if you could get a sufficient crowd to help you,
about taking Beebee away from the Sheriff ?
Nothing, You say you said nothing about
that? No, sir. Either before or after the oc-
currance ? No, sir, neither before or after-
wards. What did you say about it ? After
he was killed, I said, it ought to have been done
according to law. What"else ? I said, if the
lav/ said"" hang him," take him out in the woods
and hang him, and not kill him in the street.
That is all you said about it ? That is all I said
about it; of course I had no right to say anything
about it, and I did not. And you say after you
ran across to Mr. Davis's you did not see anything
of Mr. Tolar ? I did not say that. What did
you say ? I saw Captain Tolar standing with
his back turned towards the small pillar, and
talking to a crowd of gentlemen, apparently.
How long did Tolar stand there ? I do not
know, sir, how long. How long did you see
him there, three or four minutes ? , He did not
stay there three or four minutes. How long;
a minute or two ? He might have stayed there
a minute, A.nd while you were there, both in
the position where you were, and while you were
at Davis's, Tolar was standing there "with his back
to the market house? Yes, sir, when this shoot-
lug was done he sort of turned around, and as I
turned off, he turned off, and when I got to Mr.
Davis's he had got to the pillar looking north-
wards like talking to some gentlemen. You
think he stayed there as long as a minute or two ?
Yes, sir. Which pillar do you mean? The
one between the large arch and small one. Look-
ing north ? Yes, sir.
Re-direet examination by the Counsel for the
prosecution.
I understand you to say there were some men
between Tolar when he fired the shot, and the
prisoner who was shot down ? Yes, sir. Do
you know who those were ? No, sir, more than
they were some police. Did you notice any
men bending their heads out of the way of the
pistol? No, sir, as soon as he was raised up
the pistol was just reached over their heads.
The pistol was high enough to reach over
their heads? Yes, sir, he was pretty tall.
Do you know who it was Tolar was talking
with when you went over to Davis's cor-
ner? I saw Ed. Powers and Mr. Lut-
torloh. They were talking with him? Yes,
sir* They were in the group after the firing of
he pistol ? " Yes. sir, a .whole crowd. I don't
know how many. Yousaw in that crowd Ed.
Powers and Mr. Lutterloh* Yes, sir. Do
you remember seeing: anybody else that you could
name? No,'sir, for I never noticed them par-
ticularly at that time. I had got down to Mr.
Davis's, and I didn't know but what there might
be some other shooting, and I rushed off farther.
I understand you to say that Phillips saw you the
day after this transaction took place ? Yes, sir;
he was on the jury : he come to me and asked me
if I would go up, and he said the Bureau wants
to get all the evidence it can, and I want you to
go up. I said, "Well, the Bureau have not sent
for me, and I don't love to get in your scrapes."
I says, "you were there; you saw it: you had yo ur
pistol, and I expect you would have shot hitn ;
and he said, no, I had it out to protect the Sheriff'."
I said that "there had been some, threats made, if
any colored man knows it he would be killed any
way." Did Phillips ask you to swear to a lie ?
No, sir. You say the conversation he has had
with you since he has been here is pretty much the
same as he said to you then ?■ Yes, sir. . Your
opinion is still what it. has always been, that he
hud the pistol out at the time the other man fired?
Yes, sir. He has not asked you to alter your
testimony ? No, sir, he only told me I was mis-
taken. Who was the first" person that you
made your statement to about this business?
—I don't mean arr official statement but who did
you talk to about it ? Mr. Davis and Captain
Green and Mr. Dodd. You were not examin-
ed before the Coroners inquest? No, sir.
When was the first time that you were examined
on oath about this matter? It was when
the General was down at Fayettevfile. Did he
send for you ? Yes, sir.
On motion, the Commission adjourned to meet
on Wednesday July SI, at 11 o'clock A. M.
Raleigh, N. C.,. July SI, 1867, 11 A. M.
The Commission met pursuant to adjourn-.
ment. Present all the members of the Commis-
sion, the Judge Advocate, the Counsel for the
prosecution, ail the accused aud their Counsel.
The proceedings of yesterday were then read.
The following question and answer were inser-
ted in witness, Calvin Hunters testimony, on
page 419. '
.Have not you been known by the name of Cal-
vin Johnson ? Yes, sir, when I was a slave.
Yesterdays proceedings, having been read were
then approved.
_ Jesse Reynolds, a witness for the prosecu-
tion, having been first duly sworn, testified as
follows:
Examined by the Counsel for the prosecution.
What is your name? Jesse Reynolds. Where
do you live? Eayetteville? How old are
you ? I am twenty two years old. W ere you
in Fayetteville the day Archy Beebee was killed ?•
Yes, sir. At the market house that day ? Yes,"
sir. What time of day did you go to the mar-
ket house? About one o'clock may be, or a.
little sooner, or later. Were you there when
Archy was brought out of the guard house ? Yes,
sir. Where were you standing when he was-
brought up to the market house from the guard
house? I was standing at the east corner.
Were you on the front face of the market house,
or on the south face ? On the south face. Was
the prisoner brought by you ? Yes, sir. Did
you stand there until he was carried up stairs 2
I stood there till he passed pie and I ran around
and got up on the east bench. The bench in
the little arch? Yes, sir. You stood on that
bench? Yes, sir, until he went up stairs.
CONVENED AT RALEIGH, NORTH CAROLINA.
58
Whore did you go after lie went up stair? I
went around in the big arcli; and walked about
tliere. Did jtou go inside of the big arch? A
little piece. While be was up stairs? Yes,
sir. Who did you see in the market house? I
seen Mr. Tolar, and Mr. Maultsby. What
Muultsby? John Maultsby, and Mr. Powers.
What Powers ? Tom Powers, and I seen Mr,
Nixon. What is his name? James Nixon.
Any one else? Well, sir. I seen several around
there. Did you see Monk Julia? Yes, sir.
Any one else that you can name ? I believe
that is all I took any notice of. Was there
much of a crowd in the market house ? There
was a pretty big crowd. How many people ?
A hundred or over. In the east front ? All
around by the steps. Inside do you mean?
Yes, sir, and outside too. These men that you
mention as having seen inside of the
market house, Tolar, Tom Powers, Monk Julia
and John Maultsby, where were they standing?
They were standing up there together. Were
they in the same group? They and several
more were standing together. What part of
the market house were they standing in ? Un-
tier a big arch, on the right hand side as you go
in. Was there a bench there ? Yes, sir. A
bench that was from the pillar or the right hand
side? Yes, sir. Did you notice whether
they were conversing together, or saying any-
thing ? I did not take any notice of it. They
were talking there. Did you hear Maultsby
say anything while the negro was up stairs ? I
heard him say to another man with him—
who was that man ? I don't know his name, a
stranger to me. What sort of a man was he ?
He was a tall man, with red whiskers, and sort of
red hair. Had you seen him about there be-
fore? I saw him that day. Mr. Maultsby
was talking to him ? Yes, sir. What was he
saying ? ' He was talking about this Archy;
and I heard Mr. Maultsby say, "if he was not
guilty, he was Archy's friend, but if he was, he was
in for it as well as the rest." That if he was not
guilty he was Archy's friend, but if he was he
was in for it? Yes, sir. Were you standing
there when the lady came down stairs? Yes,
sir. Were you standing outside or inside ?
Outside, and oppositie the big arch. Were you
close by it? Yes, sir. Which side, right or
left ? The left side as you go down towards
Liberty Point. When the lady came down stairs
what happened ? She went in the buggy, her
and her mother, and she called Mr. Powers to
her. Which Powers? Tom Powers—and
Mr. Powers come back and said his sister. Who
asked him what she said? Monk asked Mr.
Powers what she said, Mr. Powers told him his
sister did not want him to have anything to do
with the case, and Monk said, "you can do as
you please, if it was me, as you, I would have
something to do with it." That was the sub-
stance ot the conversation ? Yes, sir. This
young lady and here mother called Tom Powers
to them, he went and when he came back Monk
asked him what they said, and he said they didn't
want him to have anything to do with it ? Yes,
sir. And Monk told bim if it was him he
would have something to do with it ? Yes, sir,
he said, "if it was me as it was you, I would hsive
something to do with it. Is Tom Powers any
kin to Miss Massey ? I believe Mrs. Massey is
Tom's sister. Did Monk say if it was his kin
folks ? It meant the same thing, if it was me,
as it was you, I would have something to do with
the case. How long was that before the negro
came down stairs? He came down in a few
minutes after that occurred. Could you see
the steps as they came down? Yes, sir.
What happened as he baine down ? He went
round the corner to start to the guard house, and
Mr. Powers took hold of him. How ? By
his arm. With which hand, do you remember?
I can't tell—of his right arm I believe. He
took hold of the negro's right arm? Yes,
sir. Which hand did Mr. Powers use? I
disremember—but he took hold of him. You
think he put his hand upon him ? He put his
hand upon his arm and Mr. WemyssI think shoved
him off. What did he do then? He went up
in the crowd. In what crowd? Where the
policemen was. How do you mean he went
up ? After they shoved him off onoe he went
up again. He walked very slowly or ran up ?
Not very slow or fast, a common gait. You
didn't think he was trying to make his way into-
the crowd ? I don't know whether he was or
not, I can't tell about that. Did he give way
to every body else ? he didn't press into the crowd ?
I didn't see him press in but he went up towards
the crowd. What was Monk doing all that
time ? Monk run up the same time. What
happened then? Well, sir, they started onto
the guard house with the prisoner, the officers
did, and when he got to the corner the pistol was
fired and he fell. Where were you standing
when Archy fell ? I was standing light behind
him—right by the edge of the big arch. The
arch nearest to Areliy ? Yes, sir. When the
pistol was fired? Yes, sir. Who fired the
pistol? I don't know. sir. I ask you in the
presence ofGod, who sees your heart,—who fired
that pistol ? I say I don't know, sir. What
hindeied you from seeing ? Well, sir, I had my
eyes on the prisoner as I told you before. Your
eyes were 011 tlie prisoner ? Yes. sir. Did you
see the prisoner ? Yes, sir. Was he on your
light or left hand ? He was sort of on my right
—(touching his left arm). Is that your right?
I mean on my left. Did you see the smoke of
the pistol ? No, sir. How far was the pistol
from you, from the sound ? I could not tell ex-
actly by the noise of it. v^What is your impres*
sion? I reckon he was as far as here to that
window or further (about fifteen feet). You
think it was as far as from you to that window ?
It might be further and may be not. I can't tell.
Did you see Capt. Tolar in the crowd ? The last
I saw of him was when he was standing under the
market house.
Cross examination by tho Counsel for the ao-
cused:
What is your business ? Any kind of labor-
ing work, You say when Maultsby came back
lie sat down on a bench with some other man and
said to him, "If Archy is not guilty I am hia
friend." No, sir, I didn't say that—he said if
Archy was not guilly that he was liis friend,—is
what I said;—" but if Archy is guilty lie is in for
it."
The Counsel for the prosecution did not think the
prisoner understood the question.
The Counsel for the accused would ask it
again.
Cross examination resumed by the Counsel for
the accused:
When Maultsby came .down and sat down upon
that bench he made this remark : "If Archy was
not guilty I am his friend ?" Yes, sir. But if
he is guilty he is in for it ? Yes, sir. Refer-
ring to the trial that was going on up above ?
The Counsel for the prosecution:
That is a question of opinion. The -witness
does not know positively that he referred to the
trial;
The Counsel for the accused:
54
PROCEEDINGS ■Of' A MILITARY COMMISSION,
If there is any objection to the question I will
leave it out.
The Counsel for the prosecution objected to the
question.
The Counsel for the accused:
Let it be struck out, sir.
The question was stricken out.
Cross examination, resumed by the Counsel
lor the accused!
Did you see Maultsby do anything that day ?
No, sir, I didn't see him do anything at all.
Did yoiu 6ee him jump up upon that bench, which
runs by Becky Ben's stall, about the time the
prisoner was brought down stairs ? No, sir.
About that time can you swear whether Maultsby
did or did not jump up upon that bench, run-
ning by Becky Ben's stall ? Weil, I can't
swear it, he may have done it, but I never seen
him. If he did it you didn't see him ? No,
sir. At the time the prisoner was being
brought down, could you see any person who
jumped up on Becky Ben's stall? I didn't
see anybody jump up there, it was only boys
and young fellows up when they come down.
Was Maultsby among the crowd up there?
No, sir. Did you see him anywhere ? I saw
him under the market house, talking to that
in an. Was he sitting there talking to that man
.at the time the prisoner was .brought down stairs?
I don't know. I understand you to say that
Tom Powers went up and put his hand upon the
prisoner Beebee ? Yes, sir, put his hand upon
his arm. Did he put his hand upon his arm
gently? Just laid his hand upon his arm like,
only he grabbed hold of him. You are certain
he did grab him by the arm ? Yes, sir. Did
he keep his hand upon the prisoner's arm until
they shoved him off ? Yes, sir. How long
before they shoved him off did he have his hand
there? They shoved him off immediately.
Which hand did he put upon his arm,—his right
handorleft? I didn't notice about that. See
if you can remember from the position? I
tell you I never took any notice which hand it
was, but he put it upon his arm. Was there
auy knife in that hand ? Not that I saw, sir.
No knife init? No, sir, not that I seen. You
were looking at him ? Yes, sir. And you
saw no knife ? I saw no knife. Did Monk
have any knife ? Yes, sir. Which hand did
he have it in ? His left hand, I believe. I
think I understand you to say when Powers
went up to the crowd that he did not rush up,
but he just walked up in an ordinary gait?
Just walked up and put his hand upon him.
How far did say you were off from the prisoner
at the time he was shot ? I may have been ten
feet, or a little further, about that, distance ten
or twelve feet. Were there many persons be-
tween you and Beebee at the time he was shot?
There was right smart. Did you see anything of
Sam Phillips there that day ? Yes, sir. At the
time Beebee was shot, did you see Ham Phillips?
No, sir ; I seen him after he was shot. Where
was Phillips ? He tvas standing off towards Mr.
Davis'store. To the left Of you ? Yes, sir;
not exactly towards the Store, but sort of down the
street. How long was it after Beebee was shot
before you saw Sam Phillips? It may have
been five minutes, or such a matter, or a little
longer. How near was he at that time to the
place where Archy Beebee was shot ? May be
as far as that window—(about 20 feet.) Did he
have any thing in his hand? Yes, sir. What
did he have ? A pistol. How did he have it ?
He had it in his left hand working it with his
right; looked as if he was rubbing the dust off of
it. Rubbing the dust or smoke, could you tell ?
No, sir; he was rubbing something off of it. What
sort of pistol was that Mr. Phillips had? It
was a six-shooter, I think. How long was it?
I suppose about that long ,(representing by his
hand.) That is about ten inches? Yes, sir.
You think it was about ten inches? Yes, sir.
How far wa3 Phillips off when you saw him fire, or
ten minutes after the pistol was fired—how far
was Phillips from the place where you saw the
smoke ? I didn't see the smoke. Didn't you
see the smoke of the pistol when it was fired?
No, sir. Could y ou state what part of the crowd
the pistol was fired from, from the sound of the re-
port ? No, sir, I could not. So you don't
know where the person was who fired the pistol ?
He was standing off on my left, but I don't exact-
ly know the spot, how far nor how nigh. Did
you see a pistol in the hands of any body else, ex-
cept Phillips, that day ? No, sir. Did you
hear Phillips make any remarks about shooting
the negro that day ? I went up to him and
asked him what he meant by that, and he allowed
there was going to be a fray there. What else?
That was all he said. That was directly after
the firing ? May be five or ten minutes, or a
little longer. The man was dead and the erowti
begin to get a little thinner. And you saw noth-
ing of Captain Tolar at the time the pistol was
fired? No, sir. Do you know Tolar ? Yes,
sir. Did you know him before that time?
Yes, sir. Was he one of the oeople that was
standing 'in front of you, between you and the
prisoner? No, sir. He was not? If he
was I didn't see him. You last saw Tolar, you
say, under the market house ? Yes, sir. "Be-
fore the pistol was fired? Yes, sir. Did you
see him there directly after the pistol was fired?
That was the last time I saw him that day. You
didn't see him but once that day ? That was
the last time I seen him before the pistol was fired.
Did you see him after the pistol was fired? A
day or two afterwards, I think. But the same
day ? No, sir.
Re-direct examination by the Couusel for the
prosecution.
Witness, I want you to state exactly in yonr
own words, what it was you heard Maultsby
say to that gentleman with the red beard ?
Ho said, " If Archy was not guilty that
he was his friend, and if he was guilty he
was infer it," some kind of way he brung it
out. Didn't you say to me that he said he
would see them out ? No, sir; he said he was
"in for it. " Did he say "ho was in for it, " or
"I am in for it ? " He said "I" of course.—
That is the way I understood you; you understood
at that time, Mr. Maultsby to mean, that he him-
self, Maultsby, was in for "it ? He said those very
words. Be said " if the darkle was not guilty, he
was his friend, but if he was guilty, he was in for
it. " Just put yourself in the place of Maultsby,
and repeat the same words he used. Now consid-
er yourself Maultsby, and say what Maultsby did ?
I don't want to put myself in the place he was, but
he said this "If Archy was not guilty I was his
friend, but if he was guilty I was in for it.' What
did you say Mr. Phillips was doing with the pistol
when you saw him? He was fingering about the
revolver. The lower part of the pistol ? Yes,
sir ; the part next to his hand. What was he
doing? I didn't notice. Was he rubbing it,
sort of (like he was scratching the rust off with his
thumb nail. How long did you say that was af-
ter the firing? Maybe five minutes. Did you
say the crowd was thinning out ? Yes, sir; they
began to thin out. Did you hear Powers say
anything ? I didn't hear'him. Did you hear
anybody demand the prisoner ? No, sir.
CONVENED AT RALEIGH,. NORTH CAROLINA.
55
Henry Hagans, a witness for the prosecution,
after being first duly sworn, testified as follows:
Examined by the "Counsel for the prosecution.
Whore did you live at the beginning of this
year? In Fayetteville. "What is your busi-
ness there'? Shoemaker. Whose shop did
you work in, the first part of this year ? I work-
ed with Mr. Henry Sykes. Is that the one arm-
ed man? Yes, sir. Did you know Archy
Beebee? Yes, sir. Were you in Fayetteville
the day he was killed ? Yes, sir. What day
was it ? I think it was the 12th of February.
Was it in the morning or afternoon ? Afternoon.
About what time j A little after three o'clock.
Were you at the market house? Yes, sir.
What time did you get up there ? I got up there
about five minutes past three o'clock, I think.—
Was there a clock in that market house? Yes,
sir. Does it keep time? Yes, sir. Was
Archy up stairs ? Yes, sir. Where did you
go to stand when yon first went there ? I sat
down under one of those little arches ; the one to-
wards the river, rather inclined to Mr. Fishblate's
store. That is on the east front ? On the
north front (on the plan of the market house the
witness pointed out his position as on the east front,
but on the corner toward Mr. Fishblate's, looking
down towards the river.) How long were you
seated in that small arch ? About ten minutes I
guess. Where did you go when you moved from
that point? In front of the arch towards Mr.
Draughons. Did you stand there ? Yes, sir.
Any length of time? Yes, sir; 1 stayed there
till after the pistol was fired ; I don't know exact-
ly what time. Were you on the pavement ? I
was off the pavement. Did you move before
Archy came down stairs ? I moved to that place
as Archy was coming down stairs. I never moved
until after the lady come down stairs. You were
sitting in that small arch until the lady came down
stairs? Yes, sir. Did any one go with the
lady to the carriage ? Yes, sir ; Mr. Bond, the
constable. Any body else ? Her mother.
Any ore else ? Not that I saw, sir. Did you
go inside of the market house at all? No, sir.
Did you see who was in the market house while
the lady was up-stairs ? No, sir. Did you
see any of these prisoners in the crowd there that
day while Archy was up-stairs ? Only one, sir.
Who was that? Monk Julia. Who else did
you notice in the crowd, if any one ? No one
but the man I was working for, Mr. Sykes, and
Armstrong and Simmons. You noticed Mr.
Sykes there? Yes, sir. Where was he?
Well, sir, he was standing on the pavement right
in front of the central arch? Was that before
the lady come down stairs? Yes, sir. Did
you see the inside of the market house at all ?
Up-stairs ? No, inside of the lower part of the
market house, through the big arch ? • I did not
notice in particular. You did not look in there ?
No, not in particular. You did not go in at all?
No, sir; I mean to say I did not look in the mar-
ket house before the boy came down stairs; I did
not mean after he came. Could you see the
stairs from where you stood, when the boy was
coming down ? Yes, sir. Did you sec him
coming down stairs ? I did, sir. Who was
with lilm ? I think it was Sheriff Hardie and
Mr. Wemyss. Any one else ? If there were
I did not notice; I think there were some police-
men, but I did not notice particularly which ones.
Did you see him from that time until the time he
got outside ? No, sir, he was a little between
the central arch and the little arch. The pillar
got between you ? Yes, sir. What happen-
ed when he got down stairs? The first thing
I saw was the crowd rushing to him. Who was
in the crowd; any body you can identify? I
saw Mr. Sykes and Mr. Powers. Which Powers ?
Mr. Thomas Powers. Any one else? Not as
I could discern. Did you see Monk Julia? I
saw Monk, too. Any one else? Not at that
time. Had you seen Mr. Tolar up to that
time? I did not. What happened in the
crowd that rushed up to him; did you hear any-
thing said ? Yesv sir, there was a word said.
What word? It vas either "I demand the
prisoner," or " gentlemen he is mine." Some
expression of that character ? Yes, sir. Who
used that? Thomas Powers. Did you see
him when he spoke ? Yes, sir. Do you know
him well? Yes, sir. No doubt but that lie-
is the man who spoke those words? No, sir.
Did he seize the prisoner ? He was in the act
of seizing him. Did he get hold of him ? No,,
sir, the crowd kept rushing until he vanished;
from me. At that time what was Monk Julia
doing ? I do not know what Monk was doing
at that time. Did you see any weapons
in the hands of any one at that time ?
I do not know, sir. What happened next?.
The next that happened, I heard some one say
" shoot him, shoot him," and I looked and I saw
a pistol and I saw a man that had the pistol.
Where was he standing? He was standing;
near the edge of the side walk. On the pave-'
ment or off ? On the edge of the pavement.
Was he opposite the small arch or the big one?
He was nearer to the little arch than he was to*
the central arch; 1 do not think he was standing
opposite the little arch, but he was nearer to it
than the central arch. Which way was his face ?'
His tace was sort of towards the corner of the
market house. How was that man dressed that
had the pistol ? I did not notice in particular; he
had on a shawl. What kind of a shawl ? A long;
'citizens shawl; a sort of greyish color. Did you
know the man? Yes, sir. Who was "it?
Captain Tolar. Did you know him before?
Yes, sir, I saw him there selling beef in the mar-
ket house. You saw him with the pistol in hi»
hand? Yes, sir. You saw him when he
fired? Yes, sir. Did yon see Archy when?
he fell ? I saw him when he sunk in the Sheriffs-
hand. What became of Captain Tolar when he
fired ? I could not exactly tell; just as he fired
the pistol, it either went in'his pocket or through
under his left arm, and he flirted the shawl off,
and turned, and I never saw him any more.
Didn't you see him any more that day ? I did
not sir. Who was standing nearest to him that
you saw? John Armstrong was the nearest
man that I saw, that I could call by name. How
near was the man? I could not tell exactly
how near; but he was close enough to throw the
shawl on John Armstrong. Did you see it fall
on him ? Yes, sir. Who else did you notice
near him ? I could not eall any name. Did
you see Ed. Powers or Maultsby or Sam. Hall ?
I did not. Did you hear anybody hurrah for
the man that did it, or any thing of that sort ? I
heard a man out in the street ask whether he was
shot, and some one answered, yes; and he took
ofl his hat and said hurrah, and some other ex-
pression, but I could not tell what it was. Who-
was that man ? Jonathan. Holl-ingsworth. Did
he use any name when he made that hurrah ?
not that I can recollect. How long was that
after the man was shot? It was about two
minutes I guess. Did you see Mr. Phillips
there that day ? I did sir, I saw him before the
thing occurred but not afterwards. Did he
have a pistol when you saw him ? I did not
see it sir. What weapons did you see there
that day? who did you see with a weapon ? I
so
PROCEEDINGS OF A MILITARY COMMISSION,
never saw but tbe pistol and the knife. Who
had the knife ? Monk J ulia. Do you know
whether Sykes had a weapon that day ? He had
a weapon. How do you know ? He showed it
to me after he came back to the shop. You
were staying at the same shop ? I was working
for him at that time.
Cross examination, by the Counsel for the ac-
cused.
Where do you live now ? I am living here at
present, sir. When did you leave Fayetteville to
come here ? I left Fayetteville Tuesday morning
a week ago. Had "you been subpoenaed as a
witness before you came here ? I was not sir.
Have you been since coming here ? I suppose so.
Have you had any talk with any of these witnes-
ses from Fayetteville about this matter since
they came up here ? No, sir, not any talk in par-
ticular. Haven't you had repeated conversations
with Sam Phillips since you have been here?
No, sir, not concerning this case. Witness, I
ask you on your oath if you have not stated this
matter to Sam Phillips, and he has dragged it out
of you since he has been here ? Dragged out
which sir ? This statement that you have made
here—answer the question, don't be afraid—how
do you answer it sir? You say has not he got
it out of me ? I ask you upon your oath, here
in the presence of God—I ask you if Samuel
Phillips has not been at your shop pumping you
about this matter ? He has been to my shop,
sir. Before you were summoned as a witness
in this case? Yes, sir, he was. And he
pumped yon about this matter ? He asked me
a few questions about it sir. Didn't Phillips
refresh your memory about it, and didn't Phillips
tell you what to say ? No, sir, he did not.
How many times did Phillips come to your shop!
He never come to my shop but once. When
was that. It iyas "last Saturday. Had you
told anybody you knew about this matter before
that? No one, but Robert Simmons in Fay-
ettevill, and Louis Smith. Now just go on and
tell the Court what that conversation was be-
tw een you and Phillips last Saturday—what did
Phillips say to you, when he first come there?
First his business with me was to mend his boots
—then—. Don't hesitate tell the truth? I
want to tell the truth of course, that is the reason
why I am studying. I think the first was sir—I
can't exactly tell what was the first. Did he
commence the conversation with you about this
matter, or did you commence it? I don't think
it occurred between either of us, the first com-
mencement. Now just remember this—I ask
you if Phillips did not go to your shop, and
shortly after the conversation commenced say to
you—Hagans, I am looking up witnesses to prove
that Tolar shot this man Beebee ? No, sir, he
did not actually-. Then state what he did tell
you? Mr. Nixon and Mr. Phillips came to my
shop, and was talking concerning this matter.
They asked me I think was not I at the market
house that day. Who asked you? I think
Mr. Phillips asked me. Very well? I am
not positive whether it was Phillips or not. I
told him 1 was. He asked me did I see the pis-
tol when it was shot. I told him, I did. Mi*.
Nixon asked me did I know who done it. 1 told
him I did. He asked me who. I told him Capt.
Tolar. You swear you told Nixon on that oc-
casion ? Yes, sir. I told him there in my shop,
or in' the shop I worked in. What did
Phillips tell you then ? I think that Phillips
asked me about Sykes next. He began to
talk about Mr. Sykes, and I spoke of Mr.
Sykes laughing and going on; that he was close
enough when-the pistol was fired to hear the
whistle of the ball by his ear. How many
conversations have you had with Phillips about
the matter since that day? None, sir. I
mean how many conversations have you had
with Phillips since tuat time, upon Tolar's shoot-
ing the negro on that occasion ? I have not
had any conversation, sir, since that, with Mr.
Phillips. Neither at his boarding house or
elsewhere? No, sir. No other conversation
upon that subject at all with him ? No, sir,
only the day I was to report to General Avery,
sir. Did you have any conversation with Phillips
on that day ? I did not have any conversation,
but he was the man that came and told me Gen-
eral Avery wished to see me. He was the man
that came to you? Yes, sir. Thatistheon-
ly conversation you have had with him since ?
Yes, sir. What did you say in that conversa-
tion ? I says, you haven't reported me, have
you? and he didn't give me any answer. He
told me to go to General Avery's office at five
o'clock in the afternoon. Did you see Captain
Tolar at the market house that day, at all, until
just after the time the pistol was fired ? I did
not, sir. Did you see John Maultsby there?
I saw him there, but it was after the pistol fired
that I saw him. T ou saw nothing of him be-
fore ? I did not, sir, to be positive about it.
At the time you say Powers went up to the pris-
oner, before he cleared the arch, what did you
say was his expression ? It was either "I de-
mand" or "gentlemen, he is mine," I can't say
which for certain. Was it certainly one or the
other? I can't say whether it was or not, but
the definitions of the words, was that. Either
"lor mine?" Yes, sir. Was it not we?
I don't think it was. 1 ou think it was " I de-
mand the prisoner," or "heis is mine?" Yes,
sir. You feel sure that he did not say " we de-
mand the prisoner," or "he is ours ?" No, sir, I
don't think he said that. At the time the pris-
oner was shot, you were still sitting there in
that small arch ? No, sir. Where were you
then ? I was nearly between the little arch and
and the centre arch. Between the little south-
ern east end arch and the large main arch,
do you mean? Yes, sir. Were you on
the pavement or off? I was off. How
far were you off? I don't know for certain.
How far do you suppose? It might have
been three or four feet. How far was
Archy Beebee from you at the time he
was shot? He was about the center of the side
walk, and about six or seven feet from me. Did
you see anything of a scuffle just before he was
shot? Nothing only a rush right up in the
crowd. Did you see Beebee fall or sink down
just before he was shot ? I did not, sir. Were
you looking at him? T was, sir. See if you
can't remember just before lie was shot that he
had a scuffle with the guard am* they all sank
down together, did not you see that? I did
not, sir. But that took place, did it not-—you
saw everything there that took place? I did
not know whether it did or not, because I did not
see it. At the time Beebee was shot was he
standing straight up or was he in a stooping
posture? I don't know, sir, whether he was or
not, I could not exactly say. W hich way was
his face turned? "Towards the guard house,
sir. Did you see Sheriff Hardie at that time?
I did, sir. Where was he ? Ho was with the
prisoner. What side was he on ? He was on
the side between the market house and him, sir.
Was anybody between Hardie and the prisoner ?
Not that I saw, sir. Was there any one else ou
the prisoners right hand side. I did not notice.
Did .Sheriff Hardie have hold of him? If he
convknkd at kalkitui, no re ii o a roi.i5 a.
did not have hold of him, lie was mighty close to
him, I did not see his hands then. Was there
room between Sheriff Hardie and the prisoner's
right for anybody to have been between them ?
I don't think there was, sir Can't you be cer-
tain about these things, you saw it all ? _ I can't,
there was so tuuch excitement I could hot be ex-
actly positive about everything that occurred.
Who else was about the prisoner at that time ;
who else had hold of him, anybody? I don't
know, sir, whether there was or not. Did you
see Paircloth there ? Not at that time. Did
you see anything of Wemyss about the prisoner?
I did not, sir. tio the only person that you saw
that had anything to do with the prisoner was
Sheriff Haidie? Yes, sir. And Hardie was
close to him on the right hand side ? Yes, sir.
Where did Tolar come from when he came there
to shoot the man V I don't know, sir, the crowd
rushed all up together, I could' not see where he
came from. Was he standing still or was lie
pressing forward ? At the time I saw him he
was sort of leaning over in the act of shooting the
hoy. Were liis feet upon the pavement or was
he walking or rushing up at that time. I
think he was still pretty much—was sort of
akimbo like. Was that the first you saw of
To'.ar? Yres, sir; first the cry was "shoot
him ! shoot him" ! Who said that ? 1 don t
know, sir;—and after that, I looked, and saw the
pistol, and I looked and saw who had it. At
that time, liow far was Tolar off from Beebee ?
Well, sir, I don't suppose lie was much further
than I could point a pistol to that desk, (about
four feet.) How many persons were between
Tolar and Beebee ? As far as I can say, there
was one. Who was that ? I don't know-; his
back was to me. Was he a white man, or col-
ored man? ITe was a white man. Do you
know whether that was Sam Phillips or not ? I
do not, sir. Did you see where Tolar got the
pistol from ? No, sir.—I did not, I just saw him
raise it up and fire it. Was the muzzle elevated
or was it level? It was not exactly straight
out;—it was a little down from the level. He
was leaning over, pointing down'? Yes. sir
Was Beebee straight or was he bent at that time '?
I could not exactly say, whether he was bent or
not. Did you see Tolar fire the pistol ? Yes,
sir. Did you see the smoke come from it ?
Yes, sir. And you say. you then saw him return
it? He tried to return it under his left arm.
Don't you know he threw the pistol down to liis
right side ? No, sir; lie threw it either under
his left arm, or passed it into his left pocket.
You swear he did not throw it down to his right
side ? Yes, sir. What became of the pistol after
that? I don't know sir, I did not see it any
more. Did you see whether Tolar concealed it
about his person ; did he flip it inside of his vest?
I say he either concealed it, or passed it through
under his left arm. lrou say John Armstrong
was standing there? Yes, sir. Which side ?
On the left side. Was there anybody between
Armstrong and Tolai ? I did not think there was.
And Tolar threw bis shawl back and hit Arm-
strong in his face? On the right shoulder it
struck Armstrong, it might have his face too.
Which way was Armstrong's face ?The market
was in front of him. He was facing towards
Tolar? No, sir; Tolar was standing'to his left
side. Now how did it happen that you noticed
John Armstrong so particularly that day, what
attracted your attention to Armstrong? Be-
cause he was so near t'ae prisoner I could not help
seeing him and the prisoner at the same time.
How far was Armstrong off fross the prisoner?
He was not very far; I could not tell the exact
distance from him to the prisoner, but he was close
enough to flirt his shawl cn him. Who do you
mean by the prisoner ? I mean Captain Toiar.
1 mean Beebee; I ask you why it was you
come to notice Armstrong that day ? The rea-
son was, he wras so close to Captain Tolar ; I was
noticing him and I could not help from noticing
Armstrong at the same time. Was there any-
body else around Captain Tolar, either to his front,
to his left or behind him ? There was a good
many around about him. *Was there any person
as near to him on any side as Armstrong was ? I
suppose there was, sir. Tell us who' they were?
I don't know sir, who they were. So you know
Armstrong was there ? Yes, sir. And there
were other persons just as near, and you don't
know who they were? No, sir; I don't know
who they were, I am very well acquainted with
Armstrong sir, and the reason I noticed him in
particular, he was between me and Captain Tolar,
and of course if I looked at Captain Tolar I was
looking at Armstrong the same time. Do you
know Ed. Powers ? I do sir. Was he close
there ? If he was I did not see him. Do you
know Sam. Hall ? I do sir. Was he close
there? I did not see him sir. Do you know
Mr. J. G. Leggett ? Not personally. Do you
know Ralph Lutterlob? Yes, sir. iWas he
close there ? I did not see him. So Armstrong
is the only one you remember seeing at that time ?
I saw a good many, but I didn't know them.—
How far did you say you were from Tolar at the
time the pistol was flred ? I never said how far.
Hew far do you say now ? I don't know exactly
but I guess 1 was about As far as to Lieut.
ITargous ? I suppose I was not more than about
four feet or so from him. About four feet ? I
guess so. Were you immediately to Tolar's left
or to his front and left, or to his rear and left ?
1 was somewhat to his rear and left. And Arm-
stroiig was between you and Tolar? Yes, sir;
he was nearly in front of maraud Tolar, to the left
of Mr. Tolar and I was in the rear, to the left of
Mr. Tolar. Was Armstrong immediately on a
line directly to Tolar's left or was he to the front
and left of Tolar ? He was not on the line, of
course. A little to the rear and left ? A lit-
tie bit, sir. And you were still further in the
rear of Tolar than Armstrong ? Yes, sir. Was
that while you were four feet off from Tolar ?
Yes, sir. You were about three feet in his rear,
is that it? More tnan that sir. So you were
more than four feet? You said three feet; I
said more than three feet.
Re-direct examination, by the Counsel for the
prosecution.
When was the conversation you had with Mr.
Phillips? It was last Saturday. Who was
present beside Mr. Phillips ? Mr. Nixon
was present; it was between us three. Did
you say you had any conversation with him
since? No, sir. Had you mentioned this
matter to any one befere you came up here ? Yes,
sir. Who was it? Mr. Robert Simmons and
Mr. Louis Smith.
On motion, the Commission adjourned to meet
oh Thursday, August 1st, at 11 o'clock, A. M.
Raleigh, N. C., Aug. 1st, 1867, 11 A. M.
The Commission met pursuant to adjournment.
Present, all the members of the Commis3on, the
Judge Advocate, the Coussel for the prosecution,
all the accused and their Counsel.
Yesterday's proceedings were then read and ap -
proved. , - ,
James Kendricks, a witness for the prosecution,
having been first duly sworn, testified as follows :
Examined by the Counsel for the prosecution.
58
PROCEEDINGS OF A MILITARY COMMISSION,
What is your name? James Kendricks.
Where did you live at the beginning of this year ?
I was living in Edgecombe County. Where were
you living at the time Archy Beebee was killed?
Fayetteville. What was your occupation there
at that time ? I am a printer by trade, but I
was not doing anything then ; I was out of em-
ployment. Do you remember what day Archy
Beebee was killed ? I remember the dav of the
week, sir. What day was it ? Monthly. Do
you remember what day of the month it was ? No
sir ; I did not know until I saw it in the "Senti-
nek" You don't know of your own knowledge?
No, sir. Was it this year? Yes, sir. It
wa3 a Monday in this year ? What time did you
go to Fayetteville ? In January, sir. What
time did you leave there ? I left there about a
month ago, or a little over. It was during the
time you were at Fayetteville? Yes, sir
Where was Archy killed, what part of the town ?
At; the market house. Were you present?
Yes, sir. What time did you go to the market
house that day ? I don't know what time of day
it was. I got there before the prisoner was brought
to the market house, and remained there until he
was killed? Were you at the market house before
the prisoner was brought out of the guard house?
Yes, sir. Did you see him when he was
brought up to the market house? Yes, sir.
Where were you standing when he was brought
to the market house? 1 don't know the pbsi-
tion exactly, whence was brought up, I was stand-
ing out on the side walk, some where; I don't
know exactly where. On which front of the
market house? The east side of the market
house.. You can't fix your location/ Not
with certainty. Did Archy Beebee pass by you
as he was brought up? Yes, sir. Do you re-
member what officers were with him/ Yes, sir,
Bheriff Ilardie, and Wemyss, and Fairclotli, and
MeGuire, and Hornrinde, 1 think. Did you go
up-stairs where the trial took place/ No, sir,
J attempted to go up, but they allowed no one
but those interested. Where did you go to
then? After he had gone up-stairs I remained
about at different places, outside and inside. In-
side do I understand you also? Yes, sir.
Under the market house and outside, moving
about? Yes, sir. How long was Archi up-
stairs. Well, sir, he was up there a good while;
I don't know how long. As much as an hour ?
I don't know hardly how long. You have no
idea how long he was up there? No, sir.
While he was up there was there any crowd about
the market house ? Yes, sir, there was a right
smart crowd about there. Were they outside
or inside? Scattered about, both under and
outside. Tell me who you noticed in that
crowd that you knew, while. Archy was up-stairs,
that were standing under the market house ? I
noticed several young men there. I noticed Mr.
Tolar and Tom Powers, and Mr. Watkins, or
Monk Julia, and several others, I don't know ex-
actly who. See if you can recollect ? I saw
John Maultsby. During the time the negro was
up-stairs? 1 think it was, I am not positive, I
saw a great many more, I don't remember who
they were. Do I understand you to say you
saw Tolar, and Tom Powers, and Monk Julia there
while the negro was up stairs ? Yes, sir. Where
was Captain Tolar standing ? In different places.
Did you see him at any place during that time?
I guess he was like the most of them, he was
moving about from place to place, but I saw him
under the market, at one time, I think he was
seated on a bench, under the market, 0m
which bench? A bench that runs under the
market, on your right, as you come out of the
arch. What was he doing or saying; did yon hear
or see him do anything? I don't know that I heard
him say anything particular. I heard him make
a remark, when the prisoner came clown stairs,
but I don't remember any remark while the pris-
oner was up-stairs. Did you hear Tom Powers
say anything-, or Monk Julia? No, sir. Did you
hear any remarks in that crowd where you were
standing? No, sir. Was there any excitement in
the crowd ? They seemed to be right smartly ex-
cited. How was it indicated;—tnis excitement?
They seemed to be right smartly enraged, about
the way the negro acted towards the lady.
What manifestation of this rage was there?
They said he ought to be punished ; I never heard
anyone, that I remember, make any threats of
violence. Who came down stairs first? The
ladies came down stairs first. Miss Massey and
her mother ? Yes. sir; I think accompanied by
Mr. Bond. The Town constable ? Yes, sir.
Who went with them to the carriage ? Mr.
Powers, I think went with them. Was he con-
versing with them, as he went to the carriage ?
I think lie was. Do you know what he said?
No sir. What became of Mr. Powers after ho
went to the carriage ? I don't know, sir—he
come back in the crowd, I guess. I don't want
you to guess—did you see him in the crowd after-
wards? Yes, sir. Did you notice whether
the carriage drove off before Archy came down?
Yes, sir. Where were you standing, when you
first saw Archy ? I was standing right under
the market house. Under it? Inside of the
arch.. The main arch ? Yes, sir. On
which side—the right or left as you enter? I
don't know, sir, that I was on either side. I might-,
have been near the centre, just inside of the arch;
I would not fix any location for certain. I un-
derstood you to say you heard Captain Tolar say
something when the negro came down stairs ?
That was when lie was on the steps; I heard
Captain Tolar remark to some one, I don't know
who it was, that he l:hoped he would not have to
shoot; but if be did, it would be a good shot,"
or something to that effectthat was the first
threat, aud*the only one, I heard made- You
heard Captain Tolar say words to that effect?
Yes, sir. That lie hoped he would not have to
shoot, and if he did, it would be a good shot."
Something to that effect, I won't say the exact
words. Did you see any weapons at that time,
or had you seen auy up to"that time ? No, sir,
the first I saw in Captain Tolar's hand, about the
time We have uot come to that part of
the narrative. You had. not seen any up to that
time ? I did not see any, sir. Did any one
approach the negro or dojany thing to him before
he got down stairs? No, sir. Do you re-
member who was with him as he come down
the stairs? The officers that I mentioned,
were with him. You think all those were with
him ? Yes, sir. Do you remember who CameN
out of the door first, of these officers? No,
sir, don't—I don't know but what Mr. Bond was
standing at the door—him or the Sheriff, one of
them, was standing at the door, I think to pre-
vent any one from going up, and as they came
down they might have come out first. You
can't speak with certainty? No, sir. When
was the first assault made upon the negro ?—I
understand you to say that Tolar made this speech
as the negro was on the steps ? Yes, sir. At-
ter he had cleared the door? Yes, sir, and as
the prisoner come out, and turned to go around
the arch I heard Mr. Powers demand him, "Give
me this man," or something to that effect."
Did you see Powers at that time? Yes, sir.
What was he doing with his hands ? He put
C'OJK VEXED AT It ALE igii, NoItTlI CAKOLIXA. 59
Lis hands on Lis coat collar. You mean he
just laid it there or grasped it ? Well, I don't
know whether he grabbed at it or just put his
hand on his collar; I know he went up and told
them to give the man up to him, or words to
that effect. Did you see Monk at that time?
No, sir. What was the reply of the Sheriff ?
The reply of the Sheriff was, he should not do
it, aud said something about his being an officer,
or something, I did not understand what the
words were. What happened then? Then
a general scuffle ensued, and I saw no more of it
until I went around outside. Was Powers
pushed off'? I think he was. You say Powers
laid his hand on his collar, and demanded the pris-
oner, and the Sheriff' refused to give him up; there
was a general scuffle, and you lost sight of the
individuals? Yes, sir. And then you chang-
ed your position ? Yes, sir, I went around out-
side, of the pavement. You ran out of the
Arch, or walked out? I don't know whether I
ran or walked. Did you move rapidly or slow-
ly? I don't remember sir. Did you move
around the crowd or through ? On the outer
edge. You did not get completely out of the
crowd? No, sir. But around the outer
edge, where it was thinner? Yes, sir, around
the outer edge. It was hard to get out of the
crowd. Where were you standing when you
stopped, after making that motion ? Just out-
side of the pavement. You were standing off
of the pavement? Yes, sir. How far from
the pavement? A step or two I reckon!
Which way were you facing ? I was facing to-
wards the crowd sir, I was right east from the
market. Where was the prisoner? He was
right out on the pavement. What direction
from you ? Sort of south west. How far do
you suppose you were from the prisoner ? Well
sir, I can't say, perhaps as far as from here to
that post (about twenty feet.) You think you
were as far as that pillar ? I was moving about
through the crowd in general, they pushed ou
down, and as they pushed I kept up with the
•crowd. At the moment the pistol was fired
where were you standing? Nearly opposite
the small arch, the one furthest south, on the
east front of the market house, and a-step or two
from the pavement. Did you see the man who
fired the pistol? Yes, sir. See him dis-
tinctly? Yes, sir. Who was it? Mr. To-
lar. W. J. Tolar? The one they call Capt.
Tolar. Is this the man, (pointing)? Yes,
sir. Where was he standing from you when
you saw him tire the pistol ? He was near me.
Could you have laid your hand on liim? I
think 1 could sir. Was he to your right or
left ? I disremembcr whether he was to my
right or left. Was he in front or behind? He
was one side of me, I think lie was to my left,
when I was facing towards the negro, sort of to
my left and front like. Yon think he was to
your front or left and front, facing the negro ?
Yes, sir. He was further south than you ? A
little further. Was he on the pavement or off"?
He was off. How far do you think from the
pavement. A step or two off the pavement I
reckon. I thin k at least he was in reach of me,
and I don't think I could have been more
than a step or two off the pavement. Did
you see him distinctly ? Yes, sir. Describe
how he fired, what position he was in? The
only thing I saw about it, I saw him have the :
pistol in his hand, and leaning over the crowd
and firing. He held it in his right hand ? Yes,
air, as soon as he had clone it I tbrowed my eyes
<>n the Sheriff and prisoner. Did you so? the
prhuncr fall ? Ye.- sir. You loff sight of1
Tolar then? Yes, sir. Dicl you notice what
sort of a pistol it was ? It looked like a Colt's
navy repeater—I never saw the pistol before or
since. Was there any one between you and
Capt. Tolar? I don't know, sir, whether there
was or not. What became of Mr. Tolar after lie
fired the pistol, when was the nest time you saw
him ? The next time I saw him he was stand-
ing up against a pillar in the market. The pillar
south oh the large arch do you mean ? Yes, sir.
Between the small arch and large arch. Yes, sir,
With his back towards it ? Yes, sir. How
many minutes was that after he fired"? A very
short time, I don't know how many minutes.—
Did you see who was standing near him when he
fired? No, sir. Did you see anything of
Monk in the crowd, or Tom Powers ? I did not
see anything of either until after the negro was
shot. After I saw Mr. Powers when he demanded
the prisoner, I never saw either of them, that I
know of, until the negro was shot. Did you see
them afterwards? I saw Monk afterwards,
What was he doing? He was running around
with his knife cpen, towards the negro, and Nixon
grabbed hold of him, and told him to behave him-
self, or something like that. Did you see any
one else in the crowd, besides those you have men-
tioned ? No, sir. Do you remember seeing
anything of Ed. Powers ? No, sir. Of Sam
Hall? No, sir. Of Ralph Lutterloh ? You
mean after he was shot? Just afterwards? Yes
I think I remember seeing Powers after he was
shot, but I don't think I remember seeing any one
else. What was he doing ? I dont remember
his doing anything in particular. You remem-
ber he was there? I saw him there in the crowd.
I don't remember seeing Hall or Lutterloh.
Cross examination, by the Counsel for the ac-
cased.
Mb. Hendricks, when were you subpoenaed as a
witness in this case? I received it Saturday
last. It was dated further back. Give us the
date of it? It was perhaps the 24th, I was sum-
moned to be here on the 27th. You got it Sat-
urday ? Yes, sir ; about twelve o'clock. Just.
tell to the Court^what relationship exists between
you and Samuel Phillips? He is my uncle.
How does that come about, did he marry your
mother's sister or did your father marry his sister.
My father married his sister. Who did you tell
what you knew about this matter before you were
summoned ? I recollect two persons for certain
that I told about it, and the third I am not certain
that was immediately after the thing occurred.—
I told Mr. Maultsby about it. Which Maults-
by ? Old John Maultsby, as we call him. John
Maultsby, Sr., and I think I told Russell, who is
his|partner—A. B. Russel,—and I told Jno McCoy
about it. That, was the same day the shooting
was done, You feel sure you told John Maults-
by senior and McCoy ? I am pretty positive
about thesetwo, and I think I told Arcby Russel.
You told them the same story you have told here
to-day? Yes, sir. Certain of it? Yes, sir.
Haven't you had conversations with your uncle
Samuel at all about this matter?
The Counsel fer ttie prosecution, wished to ask
a question he had omitted in the direct examiua-
tion-
The Counsel far the accused did not object.
Direct Examination resumed, by the Counsel for
the prosecution.
I understood you to say when I was talking with
you. that you heard some exclamation in tna
crowd, as to who did it, at the tune it was done?
I did. Who was the person you heard make
that exclamation? George Hollingaworth.—
What did lie sav ? He cried out, two or three
GO ivKOCKEDINGS OF A 3
l imes, after the pistolwas fired; " Capt. Tolar shot
him ? "
Cross examination resumed, by the Counsel tor
the accused.
You have talked this matter over several
times with your uncle Sammy ? I have
talked to him with regard to it. You have
talked a good deal in regard to it since you
have been here together? Iu regard to the
feelings in Payettevihe.^ No! in regard to what
your evidence would be, here to day? No, sir.
You have not told him what you were going to
swear hero to day ? No. sir. Have not com-
pared notes with him at all? No, sir. You
say when you first got there, vou saw a considera-
ble crowd about the market house ? Yes, sir.
Did you see any thing unusual about the crowd ?
No, sir, I can't say that I did, How long had
you been there before you i aw Captain Tolar ?
Well, I don't know, sir; I saw liim several time?
in the crowd. Did you notice anything unusual
in his appearance? I did not. Didn't you
know that Captain Tolar's business lay about the
market house almost altogether? I knew he
was a butcher. Don't you know that is Captain
Tolar's usual place of transacting business, under
the market house iu Fayetteville ? I know he
is a butcher ; I did not know the man more than
J knew him when I saw him. Now you say
Tolar was sitting down on a bench when Beebee
utsrred down stairs ? No, sir: I did not say lie
was sitting there, I don't know the exact position
of Tolar, when Beebee Eta'tea down stairs; at
one time lie was there. Where was Tolar when
Beebee started down stairs and you heard this re-
markable declaration from liiin. He was stand-
lng under the arch to the best of my belief. Iu-
side of the main eastern arch ? Yes, sir. Who
was near hirn 1 I don't know that I can name
one that was near him. Was there anybody
near hiui ? Yes, sir; they were all around
about there. Were you nearer to him than any
. body else ? I don't know that 1 was. Were
there any other persons nearer than you at that
time? They might have been nearei;. I did
not remember any one that was nearer, or aDy
one that was a3 near, but they were all around.
Was that crowd around Tolar, at that, time, com-
pesed entirely cf whites, or was it a mixed crowd ?
I am unable to say; I guess it was a mixed
crowd. How many persons do you think
there were around liim at that time? I did
not have any idea. About how many, twenty-
five, thirty, forty, fifty ? Twenty-five, perhaps,
near him within a few feet of him. You are all
acquainted in Fayetteville. Yes, sir. Been
living there all your life? Yes, sir. Were
■they citizens or were they strangers ? Pretty
generally I would say they were citizens. Ancl
you cannot name a single man around him ?
No, sir, I did not pay any attention to any one
around him at that time. I ask you if there
were not men in that crowd around* Captain To-
lar, men that you had known much longer than
you had known Captain Tolar? Not that I no-
ticed of; I noticed none in the ci owd around him,
particular. There might have been men there
that I knew all my life. You have not known
Tolar a great while, have you ? No, sir. Did
you have any speaking acquaintance with liim at
all ? I have spoken to liim, I have never been
introduced to him. Did you have your atten-
Tiou attracted to him, particularly, before he
made tliac remarkable declaration ? No, sir.
It was the remark that attracted your attention
to Tolar? Yes, sir. Did you hear any
other remarks made in the crowd ? I did not,
that I remember of. The crowd war, entirely
sr commission,
still ? No, sir, I said they were pretty much
excited. But you heard no other remarks that
, you remember? I heard no threats before the
( negro came down stairs, or after, beside Tolar's.
Y'ou heard Tolar say what? give us bis exact lan-
guage. I heard him say—"I hope I won't have
to shoot, but if I do, it will be a good shot," or
something to that effect. Was that said in a
. whisper. No, sir. Was it said out in a loud
tone of voice? He just remarked it loud
enough tor me to hear, and loud enough for oth-
ers to hear, if thev had been listening; he just
spoke it out perhaps not as loud as I am talking
now. Mr. Kendricks, I will ask you if there was
any one man in that crowd that did hear that, ex-
ceptyou? I don't know, sir. Have you ever
heard anv other man say he heard it? I have
not. Have you ever lieard of any man who said
he heard it ? I have not. Well, you say that
the negro was brought down, and then you shifted
your position from the market house back off of
the pavement? Yes, sir. About opposite the
upper part of the eastern arch ? Not the upper
part; just about right of the main arch, but to the
east, and fronting the main arch like. I would
not say whether I was directlv opposite the main
arch or pillar, but I was somewhere near directly
oyposite the arch. Y'ou were out on Person
street, opposite the main arch ? Yes, sir.
Was it about the time you got your position there
that you saw Tom Powers lay his hand on thepris-
oner? No, sir; it was. before that; that was
when I was under the market when he first came
down stairs.. Are you sure that Powers put his
hand on the prsioner? I am sure he put bis
hand at his coat, but whether he grabbed it I am
not able to say* Are you sure it touched the
prisoner? I could not swear positive. I be-
iieve he took hold of him. By which
hand? The left hand. I believe. Did he
have anything in his left hand ? Noth-
ing that I saw. Anything in liis right hand ?
Nothing that I saw. Did yon see whether he
had or not ? I did not look to see; I saw noth-
ing. Did you see Monk have any knife before
the prisoner got out of the arch ? I don't re-
member seeing him until the negro wa3 shot,
after he came clown stairs. So you got the po-
sition you described, and there you took your
staud? No, sir, I did not take any stand, I was
moving about as the crowd moved. The pris-
oner was shot when he got down near the south
east corner of the market house ? Yes, sir.
And he •was on the pavement at the lime he was
shot? Yes, sir. What part of the pavement
was he on, nearer the market house, nearer the
center or nearer the outer edge of the pavement ?
I judged he was nearer the outer edge of the
pavement. Who was with him ? The officers.
What officers were with him ? Mr. Hardie, and
Mr. Wemyss, and McGuire and Haircloth, were
all in attendance. What side of the prisoner
was Wemyss on? Wemyss was on his right
side. Right or left? On his right, next, to
the market. Where was Faireloth? Well,
sir, I don't know exactly the position, Faireloth
and Hornrinde, as near as I can recollect were in
his rear, right behind. I am speaking of the
very time the pistol was fired; were you looking
at the prisoner then? As soon as the pistol
fired 1 looked at the prisoner, just as soon as the
pistol was shot my first attention was to see the
effect of it. Where was Ilardic at that time ?
He had his hand in the man's collar. Was Har-
die in his front, to his right and front, or in his
rear? It. appeared to me he was on his right
rear, but I am not positive. It seemed to me, he
61
was just to his rear, with his right hand upon his
collar, it might have been his left hand. Did
he have him by the collar? I think he did, I
won't swear positive; he had him in the collar
behind, I think. While you were standing there
you saw Captain Tolar raise the pistol—Where
did Tolar come Irom? I don't know; he was
in the crowd as I was : about first in one place
and then in another.^ Did you see him draw
the pistol ? The_ first I saw, I saw him lean
over and put the pistol out, and then I noticed
him until the pistol fired, and after the pistol
fired I turned to look at the Sheriff and the pris-
oner. How far was Tolar off' from the prisoner
Beebee at the time he fired upon him ? I don't
know* not far off", though. Was he fifty feet
or fifty yards, or five feet, or what distance?
Five feet perhaps. He was five feet ? He
was that much any way. But he was at least
that? Yes, sir. How many persons were be-
tween Tolar and the prisoner? I don't know
how many. Say how many you think? I
have no idea how many there were. As many
as three ? Oh! yes, as many as three. As
many as five ? As many as five. As many
as ten? I don't know sir, how many there was,
there was several. You think there was as many
as between five and ten, immediately between
Tolar and the deceased? Yes, sir; not right
directly in a line between him and the prisoner,
but they were scattered about between him, as it
were, and the prisoner. Just name one of those
men? I can't name one of them. Not one?
Not one that I know of. Were they black men
or white men ? There might have been both.
Might have been both? Yes, sir. How far
were you from Tolar at the time of the firing of
the pistol ? At the time the pistol fired I
was very near Mr. Tolar. I don't know but
what I could have put my hand on him. You
were on Tolar's left ? No, sir, I think I was on
Tolar's right; he was on my left—I am not posi-
tive as to that, as I said .awhile ago ; I think he
was to my left. I understand your face was
looking towards the guard house? Towards
the prisoner, yes sir. Was he on your right
hand, or left hand ? I said I thought he was on
my left and right. Left and right? I mean
left and front, a little further south than I was
but still to my left hand. Then you were three
or four steps off from the pavement, and.liow far
off'from the pavement was Tolar? I*did not
say I was three or four steps. AYell, how far
ofi' was Tolar ? He might have been three
steps: I was off a step or two and I could have
reached him. You think then Tolar was from
seven to nine feet off lrom the pavement ? No,
sir: I clout think he was that far. Well, how
far. lie might have been four or five feet, may
be more. At least four or five feet ? I guess
he was and perhaps more—1 know I was a step
or two off the pavement and I was right near
him; I don't swear that positively, because I
might have stepped it in a step. Was there
anybody between you and Tolar ? I don't know
sir^ whether there was or not. Don't you know
whether there was anybody between you and
Tolar? I don't remember; I just saw the pistol
and I never noticed any one else at all, until the
pistol fired. Was there any body to Tolar's
left; immediately—at that particular time, on his
left ? I expect there was ; the crowd was all
around him. Just name one man who was im-
mediately 011 Tolar's left. I can't name one,
sir, I just said I had my eyes on Tolar at that
time because I saw him lean over %vith a pistol,
and whether there was anybody between him
and me, 1 don't kuov. Then I understand you
to say at that time you cannot name a man who
was to Tolar's front, to his right, to his left, or
to his rear? Not at that particular time, be-
cause I was noticing nothing but the weapon in
his hand. And of the men there all around
him you cannot tell whether they were white or
colored? They were both in the crowd, I
said. Did you see your uncle Sammy Phillips
have a pistol there that day? I did". Just
describe to the Court if you please where your
uncle Sammy was standing about the time this
shooting occurred? It was not far off from
where I was—I don't know exactly the position
he was in. I ask you, if, at the time that shoot-
ing occurred, your uucle Sam. Phillips was not
nearer to the prisoner Beebee than Capt. Tolar
was ? I can't say positive in regard to that; I
remember very distinctly seeing him have a pis-
tol. Just answer the question whether at the
time this shooting occurred, your uncle Sammy
Phillips was not nearer the prisoner than Captain
Tolar? I don't know that he was—I don't
know that he was not: he was off the pavement,
outside the pavement, in the crowd—I don't
know the particular location, how far he was
from the prisoner. Was he to your left and
front or to your right and front, or immediately
011 your front? I think he was on my left and
front—he was to the left of me and perhaps to
the front. Do you swear that he was nearer to
the prisoner, or that he was not nearer/ I
say I don't know; I would not swear either
way. What was your uncle Sammy doing
with that pistol ? He had it in his hand; he
said afterwards he had it for the protection of the
Sheriff". I don't want to know what he said af-
terwards, He was not doing anything with
it; only had it in his hand, that I saw. Witness,
after this thing occurred—after this shooting was
over,your uncle Sam showed you his pistol, didn't
he ? He did. What did he show you his pis ■
tol for ? 1 don't know ; he made the remark,
"some one would have to suffer for this thing," he
said he had his pistol out but for the intention of
assisting the Sheriff, if It was necessary. " How
long after the shooting, before he showed you his
pistol ? It was a few minutes; he showed it to
me at the store. How far is it from the market
house down to his store; fifty or seventy-five
yards? Yes, sir. When you got down there
at the store, I ask you if your uncle Sam did not
call your attention particularly to the fact of his
having a pistol; Did not he say "look at it,
my pistol has not been shot; there is going to be
some trouble; I want you to examine and see that
my pistol has not been shot ?" There was roth-
ing of the sort said, he just put it down there, and
said " there is my pistol. " I ask you the ques-
tion whether that pistol which your uncle Sammy
tork so much pains to show you—whether that
pistol was a large pistol or a small one? It was
a large pistol; what they call a navy repeater sir;
I think it was a Remmington patent. How large
was it? A large size. The largest size of
Remmington's patent? I don't know .that it
was the largest size, but it was a good sized pistol;
it was maybe a foot long or over, or very near it.
Was it as'long as the pistol that Tolar had ? It
was longer I think. I never saw Mr. Tolar's since,
but judging from just seeing, I should judge Phil-
lips was the larger pistol. He did not show you
the little four barrelled pistol that he had about
him? No, sir, I Dever saw any four barrelled
pistol. He did not show you the ordinary sized
repeater that he had about him ? No, sir. He
just put out this long navy pistol, and laid it
down, and called your attention to the fact, that
as there was going to be trouble, that pistol had
03
not been fired? Yes, sir; It was a large sized
Remington's six shooter that I examined. When
had you seen Tolar before that day ? I do not
remember. Had you seen him before in a week ?
I don't know. Had you seen him before in a
month ? I don't know sir* Are you sure you
ever saw him before that day? I would not
.swear that I had. >
Re-direct examination, by the Counsel for the
prosecution.
Did you understand the last question or two
that was asked—do you mean to say you had never
seen Captain Tolar before you saw him lire that
pistol ? I said I would not swear whether I had
seen him before or not. Have you any doubt
aboHt it being the man that sits there now?—
None whatever ; I have seen him very frequently
since and talked to him since. And that is the
man whether you knew him well before or not?
Yes. sir. Sain Phillips is your maternal uncle
as I understand ? Yes, sir. He is your moth-
er's brother? Yes, sir. _ Why haven't you
talked with him about your evidence since you have
been here? Weill sir, because I told you when
1 gave in my evidence, that I would not do it.
You promised me you would not do it? I prom-
ised that upon my word and honor I would not.
You kept that promise ? Yes, sir. You speak
of having mentioned who it was fired that pistol
the very day it occurred, and you said, among oth-
ere, you told it to old John Maultsby ? Yes, sir.
What did John Maultsby say to you when you
told him ? He told me not to say anything about
it. He told you to keep your peace upon that
subject? Yes, sir. I understand you to say
you had talked it over with your uncle at that
time ? I don't know that I did—I don't think I
did. Your best impression is that you did
not? Yes, sir. When you say you gave
the same evideuce—you told the same story
that you did here to-day, do you mean von
stated all the particulars with the same full-
nes3 that you have on this examination?—
No, sir; I just simply told Mr. Maultsby who done
the shooting. Jit was in a sentence or two?
Yes, sir. And he advised you to hold your
peace? Yes, sir ; he might have asked me who
shot, and I told him, and he told me to say no
more about it. As I unde stand you, when you
saw that pistol elevated and ready to fire, your
whole attention was absorbed by it, so that at that
moment you cannot exactly tell who was near it,
and that as soon as it did fire your attention was
immediately attracted to the point to which it was
directed, the negro? Yes, sir. When did
you first see Sam Phillips, was it during the time
the pistol was elevated, or after ? I think it was
immediately after. I won't be positive whether
that wasimmediately after or before ; it was very
near the same time. You can't say whether it
was immediately after or before? No, sir. Did
yon see any pistol in his hand at that time?
Yes, sir. Was it the same pistol you saw in his
hand that you saw afterwards ? I would not
swear it was the same pistol; it was a pistol of
the same general, character. There was no mark
on it that I knowed that I could swear to its being
the same pistol. What did you do after this negro
was shot—did you go up to look at him ? Yes,
sir. Did you and Sam Phillips leave the crowd
together ? I don't know that we went together.
1 walked down to his store in his company. Y ou
and he walked together from the market house ?
Not particularly right together. Was he in
your presence? Yes, sir. So that you could
see him 'oad the pistol, or unload it or clean it ?
I think I could have seen him done either if he had
done so. Could you have seen hiin? I think
I could. He was in your sight pretty much ?
Yes, sir. How soon did you leave the market
house after the shooting ? A few minutes ; as
soon as he shot I went up and saw he was Killed.
You left in a minute or two? Not that soon.
How long do you think? In such times as that
I would not like to swear positively ; I don't know
how long it was from the time he was shot, but it
was short. Wt ere did you join the company of
Mr. Phillips ? 1 saw him walking along, and I
walked over and went orxdown in his company
over near Taylor's corner, and we walked on down
to his store. Did you see his pistol before he
left the crowd, besides the glance you had at it ?
No, sir.- Did you examine it when you got to
the store ? I looked at it. Did you see^vhetb-
cr it was loaded ? Yes, sir. Were all the
barrels loaded ? Yes, sir. Whenyousaw the
pistol in your uncle's hand just after the firing,
what was he doing with it; how was he holding it?
I don't know exactly how he was holding it.
Was it elevated as if about to shoot ? He had it
out in his hand. Was it pointed up. I don't
know bow it was pointed exactly. I want to
know whether it was presented or not? I don't
know whether it was presented, or whether he just
had it in his hand. I would not swear whether it
was up or down. You saw him with this largo
pistol in his hand just about that time ? Yes,
sir. Did you see any smoke come from the pistol
barrel, or smoke from the tube ? No, sir. Did
.it strike you at the moment that he might have
been the man that fired the pistol? No, sir.
You saw the man who fired the pistol ? I did.
How many pistols were shot ? Only one. You
saw tnat fired ? Yes, sir. tt is impossible for
you to be mistaken about it? It is, sir. And
you have entertained* that opinion from the
moment it took place until now ? Yes, sir.
William H. Carpenter, a witness for the
prosecution, after haying been first duly sworn,
testified as follows:
Examined by the Counsel for the prosecution.
What is your name ? William H. Carpenter.
Do you remember the day Archy Beebee was
killed ? Yes, sir. Where were you living then ?
I was living at Mr. Brandt's cotton factory. In
Fyetteville? Yes, sir. Were you working
there ? Yes, sir. Were you near the market
house at the time he was killed ? I had been
up at the ware-house baling yarn and was re-
turning; I had got through and started back to
the mill, just as he come out to go to the guard
house. Did you go through the market house ?
Yes, sir, I came out of the "east end and turned
around towards where Mr. Davis' store is, and I
heard a pistol fired, and I looked around and I
saw William Tolar coming around, and he put
a pistol under his clothes, down by his right side.
Was that after the firing? Yes, sir, the firing
of the gun made me turn around, and I saw
him pass betwixt me and the out edge of the
crowd. The gun went olf, and that attracted
your attention ? Yes, sir. You passed through
the market house from the west end to the east
end? Yes, sir. You went around the crowd?
Yes, sir. You went through the big arch ?
Yes, sir, and stayed there in front of the little
arch, and while 1 was standing there, the pistol
went off. • You turned and looked in the direc-
tion.you saw Tolar coming? Yes, sir, he pass-
ed before my eyes and I saw his hands, and he
put the pistol away. What did he do then ?
He turned and went around and stood against a
bench. Outside of the arch? Yes, sir. Did
vou go off then? 1 went down to the mill.
CONVENER AT RALEIGH, NOETIC CAROLINA.
153
Cross examination by the. Counsel for the ac-
cusecl:
Yon say you were living with Mr. Brandt.
Yes, sir, I worked at his factory. Are you at
work there now ? I am when I am home, sir.
The day the shooting took place you had been
at work at the ware house that day baling yarn.
You came up to the west end of the market
house, and passed immediately through ? Yes,
sir. Was there any crowd in the market house,
then? The crowd was about going around—
they were going around with the man. Did
you stop at all V I did not stop until the firing
struck my attention. You were walking
through siowly ? I was walking slowly. Very
slowly, or j'our moderate gait? Just an ordi-
nary gait. When you got into the west end
of the market house, did you see Bcebee ? I
did not. Where was he ? He was in the
crowd. They were going out when you came
to the west end ? Yes, sir. Just as you got to
the west end, they were going out of the east end ?
No; I was near about halt way of the market
house when they were coming down the steps.
You did not see Beebee ? I never noticed for
him, sir. Was there a laige crowd in the market
house then? There was right smart around
about there. How long is the market house ?
I don't know, sir. When you got to the east end
where was Beebee ? He was right back of that
corner, as you turn around to the south betwixt
the big arch and the little arch. When you
turned the arch, did you look in the direction of
Beebee? No, sir; I kept right on towards Mr.
Davis's ; the way I had to go to the factory.
Where were you standing when the pistol fired?
About five steps from the big arch. Were you
on the ground ? Yes, sir. Did you hear any-
thing said whatever? No, sir; I justcameup.
And as you looked around, you say you saw
Captain Tolar? I saw him pass before me; he
had the pistol in his right hand, in the action of
putting it away. He was walking ? Yes, sir.
That was immediatly after the firing ? As quick
as I could tturn around. You had your eye3 on
Davis's comer ? I was going that course, and
when the pistol fired I turned my head around.
Tolar was walking away? Yes, sir. On
which side of you was he; the right or left? He
was right before me, His right side wag to you ?
Yes, sir. He had turned and was walking from
Beebee ? He was walking from the crowd like.
He bad his back towards the prisoner ? His
left side as nigh as I can recollect He was
walking towards the north was he ? Going
around towards the west, towards the little arch.
Which little arch ? The little arch south of the
big arcli. Did you see Beebee ? I saw him
afterwards. Where was he lying? About
the south corner of the market house on the side
walk. When you saw Captain Tolar, he was
walking towards the small arch that is south of
the large arch ? Yes, sir. He had his right
side towards you ? Yes, sir; when I saw him
he was putting away the pistol. Was anybody
around liim then? I don't think there was-,
nobody that I noticed. Any body near him ?
I don't know sir; whether there were or not.
Did Tolar put this pistol in a pocket ? I don't
know; I just saw as he raised up his coat or
whatever lie had on, he was in the uct of putting
it away. He had on a shawl, hadn't he? I
never noticed. You say you know him very
well ? Yes, sir; I haye seen him sell beef under
there very frequently. That is all you saw—
you did not see"who fired ? No, sir. But you
did see Captain Tolar with the pistol? Yes,
dir. Did you see Mr. Phillips? I did not sir.
Did you see any other pistol there ? That is
all the one I saw. Did you see the smoke of
tlie pistol ? I never noticed for that sir; it sort
of scared me a little. The firing frightened
you? Yes, sir. How near was Tolar to yon ?
I suppose as nigh to me as that table. About
twelve or fifteen feet ? About that distance;
about some ten or fifteen feet. How far was
lie from Beebee? Well; I should think—I
don't know exactly how far. About how far?
I can't come at the distance. Can't you come
within ten feet of it? I suppose I might come
within-ten feet of it; I dont know how thick the
crowd was; he was outside of the crowd. A
large crowd there ? A hundred and more I
reckon. White and black ? All together.
Re-direct examination by the Counsel for the
prosecution.
Did you notice what sort of a pistol that was ?
I could not tell; it was a repeater of some kind
I could not tell what it was.
Duncan N. McLean, a witness for the prose-
eution having been first duly sworn testified as
follows;
Examination by the Counsel for the prosecn-
tiOD.
What is your name ? Duncan N. McLean.
What is your profession 01* pursuit ? I am a
school teacher by profession. Where do you
reside sir ? In Fayetteville. Are you a licensed
minister of the Gospel, sir? No, sir. Wero
you in Fayetteville,. at the time Archy Beebee was
killed? I was tliere when a negro was killed ;
Idontknowhis name. Were you there the
day the negro was killed, that was taken up upon
the charge of an assault upon Miss Massey with
an attempt to commit rape ? Yes, sir. Did
you know his name was Archy Beebee ? I never
heard it until I saw it in the paper. There
havn't been other negroes killed in Fayetteville
have there; this is the only one you know of?
Yes, sir ; I think it is. You were in Fayetteville
at the time ? Yes, sir. Where were yeu at
the time that pistol was fired? I was at Mr.
Newberry's, sir. That is Mr, Newberry's store
on Person street? Yes, sir. How many
stores down from the market house ? It is two
stores. On the left hand side of the way ? It
is the second store on the left hand side of the
way- You were in that store at the time of this
firing/ Yes, sir. Where were you standing
in the store ? I was standing at the window.
Did you see the pistol fired ? No, sir. How
did you know it was fired ? I heard tlie report,
aud i saw the smoke, and if I am not mistaken I
saw the blaze. Then you did see it fired ? I
did not see the pistol, but I saw the smoke. You
saw the act oi firiDg ? I did not see the pistol ;
I heard it and saw the smoke, and if I am not
mistaken I saw the blaze. But did not see the
pistol fired ? No, sir. Who fired that pistol ?
I don't know sir. Didn't you see the man that
fired it. ? I might have seen liim in the course
of time, but I did not see him at the time he fired
it. You did not? No, sir. Had you been
in the crowd before, that day ? lres, sir. Were
you there before the pistol was fired ? Yes, sir.
What did you go there for? I went there,
thinking I would hear some of the tiial. Did
you attempt to go up stairs to heai the trial ? I
went near the stairs ; I was told I could not go up.
How long were you there? Probably about five
minutes. Who was there when you wore
there? I don't know sir. Not a soul?
Yes, sir, there was a good many there. Not a
soul that you knew ? There was a great many
persons there that I knew—but it has been some
lime, and I don't remember who was". Haven't
.04
PltOCEEDIXGS OF A .UTLITAEi'COirMISS'IOX.
you memory enough to recall a single face ? I
have a very good memory. Have you attempted
to exert it? No sir. Haven't you refrained
from exerting it ? No sir. Exert it now and
see if you can recall a single faee in that crowd,
■when you were there five minutes? 1 don't
remember a single person—if I had been called
on a short time afterwards, I might have remem-
bered. You went in that crowd and remained
in it five minutes, but you can't remember a soul
that was there ? I cannot. Then you left
the crowd? Yes, sir. Did you go back after
the pistol was fired ? Yes, sir. Were you in
the crowd again? Yes, sir. Immediately af-
ter the pistol fired ? I went up to look at the
negro. Was that directly after the pistol was
fired/ Yes, sir. Who was there then? I
don't remember. Was any person ? I saw a
great many persons, but I don't remember any par-
ticular person that I saw directly after, except
sheriff Hardie and Wemyss and Dr. Foulkes. I
want to know whether you recognized any faces
at that time/ No other faces but those three.
They were your acquaintances and neighbors ;
it was not a crowd ot strangers that had come to
the town for the purpose of sacking it ? No,
sir; I knew them probably at the time. But
you can't recall a single face ? I don't remem-
ber a single face that I saw. Is this all you
know about this affair ? I think it is, sir.
The Counsel for the accused declined to cross
examine the witness.
On motion the Commission adjourned to meet on
Friday, August 2d, at 11 o'clock, A. M.
Kaleigii, N. C., Aug. 2, 1867,11 A. M.
The Commission met pursuant to adjourn-
ment. Present all the members of the Commis-
sion, the Judge Advocate, the Counsel for the
prosecution, all the accused and their Counsel.'
The reading of the testimony taken yesterday,
was waived,there being no objection thereto.
Yesterday's proceedings were then read and ap-
proved.
William. E. Porter, a witness for t.heprosecu-
tion, having been first duly sworn, testified as fol-
lows :
Examined by the Counsel for the Prosecution :
What is your name? William R. Porter. What
is your age ? Sixteen years the 22d of next Sep-
tcmber. Did you live in Payetteville last Febru-
ary ? I did, sir. Were you present at the market
bouse when Archy Beebee was killed ? I was, sir.
How came you there at that time? I had been
out hunting in the morning, and seeing a crowd
there I went, np. While you were out hunting
did you see any of these prisoners at the bar? I
saw Monk Julia in the morning. Did you have
any conversation with him about the charges
against Archy Beebee ? I did not have any
conversation with him ; he told me about this, me
and George Hollingsworth. What did Monk
have to say at that time? He said, "Archy
had got into a difficulty, and if it was proved
against him it would go very hard with him."
You had been hunting, and came up to the market
house where there was a crowd ? I did, sir.
Was Archy Beebee up stairs at the time you
reached the crowd ? He was. How long after
you got there before he came down ? & bout fif-
teen minutes. Where were you standing before
he came down? I was standing at a tree right
in the centre of the arcb. Did you remain
there until he came down ? I did, sir. Who
Bid you see in the crowd that yon recog-
nized, before the negro came down, any of
these prisoners at the bar ? I saw Tom Powers
and Monk Julia. Did you see Captain Toiav
before the negro came down ? I aid not. Do
you know Captain Tolav ? I do, sir. Did yon
know him at th at time ? . Tes, sir. Youknow
him well? Yes, sir. Did you see Jelin Maults-
by or Ed. Powers? I have no recollection of
seeing either one. Or Sam. Hall/ No, sir.
Henry Sikes ? No, sir. Well, did you see the
negro on the stairs when he was coming down ?
I did, sir. Do you remember who was in charge
of him ? The Sheriff and police. Can you
name them ? I know two of them, Mr. Wemyss
and Faircloth. Did you notice who came down
I first? I did not sir. Did you notice which
i side Mr. Wemyss was on? I don't recollect, sir.
I You saw him in a group of officers; you can't pre-
tend to locate them ? No, sir. But Hardie
and Wemyss and Faircloth were in that group?
Yes, sir. Was any assault made on him before
he reached the bottom of the steps/ I did not
see anything of the bind. Was any assault
made on him before he got out side of the market
house/ I did.not see any. What was the
first thing you saw in the way of an assault?
Just as he turned the corner, the crowd rushed at
him: some person, I don't know who, demanded
the prisoner ;—the sheriff refused to give him up
and just at that time the crowd rushed, and I
turned my head, audi saw Captain Tolar standing
there with a navy repeater, or a large Colt's re-
peater, in his hands : I saw him in a shootingposi ■
tion, and I watched him, and I saw the smoke of
the pistol, and I heard the pistol fire, and I saw
the man fall. Who fired the piotol ? Captain
Tolar, Was he on your right or left? He
was on my left. He was farther left than you /
He was. There was a confused rush ? There
was. You looked to your side? I did, sir.
To your left and front was it ? Yes, sir. There
you saw Captain Tolar in a shooting position ?
He was. Was he stooping at all? He was.
Slightly bent ? Yes, sir, slightly bent. Bow
close was he to the prisoner Beebee? About
five feet, as near as I can come at it. Was he
standing on the pavement or off? About two
feet and a half or three feet to my left. You
saw the negro fall? I did, sir. Did you see
what became of Captain Tolar? I did not, sir.
Did you see him afterwards before he left the
crowd? I did not, sir. Did you see any
thing of Monk Julia afterwards? I don't have
any recollection of seeing him. Do you remem-
ber seeing Tom Powers ? I saw him before the
thing occurred, but Dot afterwards. How long
did you remain after he shot? I remained un-
til the body was sent home. Did you mention
to any one that day that you had seen this thing ?
I told my father that evening. What advice did
he give to you ? He told me not to say anything
about it. And you have accordingly held your
peace since then ? I have, sir. Did you hear
any exclamation in the crowd when the shooting
took place? ^ No, sir. None that you recol-
lect? Nothing to my recollection. Did you
see any weapons in the crowd that day ? I saw
MoDk and Tom Powers have a knife. What
sort ot a knife had Monk ? I suppose it was a
pocket knife ; he was whittlinga stick before the
thing occurred. Before the negro came down ?
Yes, sir. When was the time you saw Tom
Powers have a knife ? Before the negro came
down. Was it open ? It was, sir. D o you
remember which hand he held the knife in? I
do not, sir. Was it befo e the man came down
stabs,—immediately before? Yes, sir. I was
only there fifteen minutes before the man came
down stairs. How long before the man came
down that you saw Tom Powers with this knife ?
Ten minutes, I suppose. I was there about five
minutes befcre I saw, Tolar at all. You spoke
CONVENED AT DALE
of having hoard some one demand the prisoner—
do you know what words wore used? He said
" I demand the prisoner." Could you speak
with certainty whether it was " I demand,"or not
—don't you recollect the exact words ? was it not
" we demand ?" I don't recollect whether it
was "we" or "I." I recollect it was "demand the
prisoner." Do you know whose voice that was?
I do not, sir. Did you see from whence it came?
I did not, sir.
Cross Examination by the Counsel for the accus-
ed:
When wore you subpoenaed as a witness for
this case ? The 29th, sir. The 29th of July ?
Yes, sir. Where was the man you call Monk,
the time you speak of having met ycu hunting
that day? lie was down in Camelton. Do
you remember what day of the month it was ?
I did not; I knew it was in February, I don't
know what day of the month it was. Do you
remember what day of the week it was? I
think it was on Monday, sir, I am not certain—yes,
sir, it was on Monday. Ycu say that Monk
told you that this man Beebee had been accused
of an attempt to commit a rape upon Miss Massey,
and t hat if it was proved, it would go hard with
him ? Y'es, sir. You heard no threats of vio-
lence towards the prisoner.^ No, sir. That
was all he sard ? That was everything lie told
me. I think, you stated you were not there
when the prisoner was carried up into tlio market
house? I was not. sir. That you got there
about fifteen minutes before be was brought down?
I did, sir. And you took your stand out from
the main arch and about two or three feet irom
the pavement? About two and a half or three
feet I think. Did you move about any, or did
you keep your position all the time ? I stood
right there. Stood et.il! ^ I did sir. Per-
fectly still? Till the crowd lushed, and they
pushed me forward, and I got back to the same
place. I think you say you saw nothing of the
rushes made at the prisoner, which were made at
him, until he had passed out of the market house ?
Nothing. Did you see the prisoner at the time
he was shot? No. sir. I saw Captain Tolar. at
the time the pistol fired; I saw the man fall.
And Capt. Tolar was on which hand? On my
left. To your front or to your rear ? Ou my
left and front. How far was Capt. Tolar off
from you ? About two and a half or three teet.
That would carry him from live or six feet off
from the pavement? No, sir, I was standing
at the tree that is nearly at the edge of the pave-
meat, Capt. Tolar was about two and a balf or
three feet from mo. Then how far was Capt.
Tolar off from the edge of the pavement ? About
two and a half or three feet. He was not lurth-
cr than that? No, sir. I was standing at the
edge of the pavement and Capt. Tolar was two
and a half or three feet to my left and front.
Did you see him when he came there ? I did
not sir. What was he doing when you first
saw him ? He was in a position to shoot. Sta-
tionary? He was sir. Was not rushing lor-
ward ? He was not sir, Were there no per-
sons between Capt, Tolar and the prisoner?
There was some. How many ? I dont know
sir; there was both black and white. A good
many were there ? Yes, sir. Approximate
it, say how many—ten, fifteen, twenty*? I sup-
pose there were ten, may be more. How many
l'eet was Capt. Tolar from the prisoner at the
time? About five feet. And there were as
many as ten persons between him and the pris-
oner? Yes, Sir, I can't say whether there was
that man}-. Were those persons who were he-
tveen Cant,Tolar and the prisoner, still, or were
NORTH CAROLINA. tie
they moving about ? They were moving about.
Did you see where Tolar drew the pistol from ?
1 did not sir, when 1 first saw him he hacl the pis-
tol in his hand. When you first saw liim in
what position did he have the pistol ? was he
presenting it ? He was presenting it towards
the prisoner. How long alter you first saw
him was it before you heard the report of the pis-
tol? It might have been a minute, I kept my
eyes on him. Do you think it was a minute ?
It might have been, or it might have been less;
It was very short I know. What is your im*
pression about it; that it was a minute, more or
lessf It was a minute, more or less. And
during that time Tolar stood there with the pistol
presented ? He did sir, moving it about to get
a chance to fire. Those persons who were in
front of Tolar, between Tolar, and the prisoner,
did they lean aside to the right or left ? They
were moving backwards and forwards. You
saw no leaning aside of these persons in front of
Tolar? I did not. sir; I saw Tolar moving the
pistol to get a place to shoot. Did that occur,
or did it not, that the persons in front of Tolar
leaned forward, to the right or left ? No, sir.
It did not occur ? No, sir. Mr. Porter, who
was standing on the left of Captain Tolar ? I
do not know, sir. Who was standing in front of
Captain Tolar? There were some persons be-
tween hiin and the prisoner ; I don't know who
they were. Who was standing on the right of
Capt. Tolar except yourself? There were some
colored men, I do not know who they were
Can't you name one of them? I cannot. I did
not know them. Who was standing in the rear
of Capt. Tolar ? There were men, 1 do not know
who they were. I ask you if you can give the
name of a single man in that crowd, who was any-
where about Captain Tolar at that time? I can
not say sir. Why was your attention attracted
to Captain Tolar ? When the crowd rushed, I
turned around and saw Captain Tolar with a pis-
tol in his hand; and I kept my eyes on him.
And that was the only reason why your attention
v»a3 attracted to him because he had a pistol ?
Yes, sir. Did you see anybody else have a pis-
tol ? I did not sir. Either before or after the
occurrence? I did not not sir. You say ycu
turned yourself; which way were you looking be-
fore you turned ? I was looking at the prisoner.
What caused you to turn so as to look to your
rif lit hand upon Capt. Tolar? Capt. Tolar
was to my left. What caused you to turn to
your left? Nothing, only the crowd and
the rush. How far was Tolar from you ?
Two and a half or three feet. Did Tolar
make any remark ? I did not hear him sir,
I was there but a short time before the thing oc-
curred. I mean immediately before the shoot-
ing, did Tolar make any remark ? I did not
hear him make any remark. Did you see Tolar
push the crowd off from him, right and left ? T
did not sir. Did you hear him say "stand back,"
or anything of that sort? I did not. Were
you near enough to have heard him ? Yes, sir.
Were you near enough to have seen him push the
crowd back if he had ? I was sir. Can you
state positively whether he did or did not ? He
did not. Mr. Porter, I understand you to say
that you saw the flash, and heard the report. I
did sir. Do you swear positive, without any
doubt, that it was Tolar that fired the pistol there
that day? I do sir. You swear that? I
do sir. Were you excited. No, sir; I was
perfectly cool. And Tolar shot him ? He
did sir. And nobody else shot him ? No sir.
And you can't be mistaken about it ? No, sir;
I cannot. What did he do after be shot him ?
06'
PROCEEDINGS OP A MILITARY COMMISSION,
I don't recollect; I went closer to the prisoner to
see the man. How long was it after that pistol
was fired before you moved up towards the pris-
oner? It might have been two or three min-
utes or five minutes. That two or three or five
minutes, what was Tolar doing ? I did not see
Tolar any more, I took my eyes off of him, as soon
as ha fired. You didn't look at him any more ?
No, more. You don't know what he did with
the pistol? hi o, sir. You don't know which
way he went? I do not know sir. And all
you know about this affair is the single isolated
circumstance that Tolar shot? He did sir.
And that is all you know? Yes, sir. Mr.
Porter, was there anybody between you
and Captain Tolar? There might have
been two or three colored men. You don't
know their names? I do not sir. Do
you know John Armstrong ? I do not,
sir. Have you never seen him ? If I did I
did not know him. Did you see the prisoner
just about the time he was shot? No, sir, I
was looking at Captain Tolar when the pistol
fired. And when you turned your eyes on the
prisoner was he then standing erect or was he
sinking ? He was falling back. Who were
nearest him at that time ? The police, I be-
lieve, sir. Do you know Hardie, the Sheriff
of Cumberland county? I do, sir. Was
Hardie about him? He was,, sir. Where
was Hardie ? He was to his right and front.
He was to the prisoner's right and front? Yes,
sir. Ain't you mistaken about that? No,
sir. Can you swear to that positive ? I do,
sir. Did he have hold of him ? I do not re-
collect; I did not see him have hold of him.
What is your best impression,—that he did or did
not ? I think he did. Where do you think
he had him ? I cannot say, sir ; he may have
had him by the collar. You mean, the collar
around the neck? Yes, sir. If he had him by
the collar did he have him in front,, or at the side?
The prisoner was to the rear ; Sheriff Hardie was
to his right and front. And you think he had
his left hand where ? Either on his shoulder
or. his collar, I cannot say which. And if in
his collar it was about the front part of his neck ?
A little to the right of the front. But whether
he had him at all you do not undertake to say ?
•No, sir, if he had him, he had him either on his
shoulder or collar.. Isaw the left hand extend-
ed towards the prisoner. There was such
a crowd you could not tell whether he had
hold of him or not. Was not there a great
deal of noise, and a great deal of confusion ?
I do not recollect much noise, but the crowd was
excited. Were they not moving about rapidly
in every direction? They weie, sir, moving
towards the prisoner. Both in front of Tolar,
and between the prisoner, and in every other di-
rection? Yes, sir. It was almost impossi-
ble to tell anything that was done there that day,
wasn't it Mr.. Porter? If you were looking
right at a man and saw him do anything, it was
not. You could only see that which you were
looking at directly at the time; you eould only
tell about that? That is all sir.
Re-direct examination, by the Counsel for the
prosecution.
Mr. Porter, speaking of these persons you say,
to the number of about ten who were standing
between Tolar and Beebee when Tolar fired, do
yoU'inean they were standing in a straight row,
one behind another? No, sir, they were not
standing in a straight row. They were stand-
ing to his right and left ? Yes sir; to his right
and. left. ' You mean the Cluster of men that
were there about him, would amount in your
opinion to aboirt ten ? Yes, sir. You don't
pretend to identify the number? No, sir, I
cannot. You don't mean as I understand you,
that Tolar was far enough off from Beebee for
ten men to have stood back to breast, between
Tolar and Beebee? No, sir. The Counsel
for the defence has asked you if certain men leaned
arise; You say there was no man that did lean
aside ? There did not, so far as I saw. What
I want to know is, if you did swear that it did not
happen, or if you did not see it happen ? I
did not see it; happen. I understand you to
say that the time you saw the man with the-
pistol in the act of firing, your attention
was absorbed by it ? It was. "And you stepped
aside when Tolar fired thispistol—you say you did
not see anything of that sort? No, sir. Did
I understand you- to say your attention was
entirely absorbed by the man with the pistol ?
you kept your eye on that man—thinking
something terrible was going to happen—until the
pistol was fired ? I did sir. The Counsel has
asked you whether Tolar, in coming through the
crowd, to get his position to fire, pushed them right
and left, and said " make way gentlemen, " or
something to that effect ? I did not hear any-
thing of the kind. The first'time you saw Tolar
was when he was iu the act of shooting, present-
ing the pistol? Yes, sir. You don't know
where he came from? No, sir. You don't
know how he got there.? * No, sir. The first
time you saw him that day, was when the pistol
was presented? It was. You think you
would have heard this exclamation, if it had been
made ? I would. Do you swear positive
that it did not take place? I did not hear it.
Did you see what Tolar did with the pistol, after
he fired? I'didnotsir., Your attention then
was directly turned to the prisoner ? Yes, sir;.
I went towards the prisoner. The crowd was
thick, and it was slow getting there; every per-
son wanted to see.. Was your attention deeply
absorbed by Tolar, when you saw him about to-
fire that pistol ? It was sir. Do vou think it
possible that some one in the crowd may havo
made use of the exclamation, without you hearing
it ? I did not hear any one But when
your attention was attracted to the pistol, was it
possible that some one may have said something
that escaped your attention ? I could not say.
But you heard nothing said ? I did not sir.
Bryant Burkett, a witness for the prosecution,
having been first duly sworn, testified as follows :
Examined by the Counsel for the prosecution.
What is your name? Bryant Burkett,
Did you live in Fayetteville at the beginning
of the year ? Yes, sir. What is your
business there ? Stilling turpentine for Mr.
Fishlebate. Did you know Archy Beebee ?
Yes, sir. Were you present when he was
killed? Yes, sir. Whcrs did it occur ? At
the southeast corner of the market. In what
town, sir.. Fayetteville. What time of dav
do you think it was ? Iu the afternoon, I don't
know what time. What time did you go up to
the market house? I was there nearly all day.
I was there before they brought Archy out of the
guard house. Where were you standing when
Archy came up from the guard house ? I was
standing about the north east corner. On the
povement? Yes, sir. Who was with Archy
when he came down from the guard house—iu
charge of him ? I don't know who all; there
wat some police ; Mr. Bond was along, the town
constable, and Mr. Faircloth, the policemen, and I.
don't recollect whether Sheriff Hardie was along
CONVENED AT RALEIGH, NORTH CAROLINA,
•8!?
at the time? You recollect Mr. Bond and Mr.
Haircloth? Yes, sir. Were there others?
There were some, but I don't recollect who they
were. Did you notice any disturbance in the
crowd before Archy Beebee went up stairs ? No,
sir. How many persons were there when Archy
went up stairs? There was a large number,
a hundred I guess there was before Archy went up.
Were there more when he came down, or fewer ?
There was more. Did the crowd grow contin-
uallv? Yes, sir. You noticed no disturbance
in the crowd before Archy went up at all ? No,
sir. You saw him go up? Yes, sir. Did
these officers go up with him ? Y es, sir. How
long did he stay up stairs ? I don't know exact-
ly, it was something like an hourit might have
been more. While he was up stairs where were
you standing ? I remained there a short time,
and then stepped over to Mr. Pishblate's store, the
northeast corner, and I stayed there about five
minutes, and th=n I went back there. I walked
about the center of the market house, and then
came on through the big arch and I walked then
out sorter in front of the big arch, and I remained
pretty much there until he came down. When
you came back from Mr. Fishblate's store which
arch did you go through ? The northern arch.
And came through the market.and stood about a
little, and then passed in front of the east arch ?
Yes, sir. Off'the pavement or on? Off the pave-
ment. How tar off the pavement ? About three
or four feet. In coming through the market house
at that time did you notice who was in the market
house? No, sir. Can you mention any one
who was in there ? No, sir, I don't recollect
seeing any one, only Mr. Powers, I recollect see-
ing him .there. Tom Powers ? Yes, sir.
Where was lie when you saw him.? He was
standing sorter at the big arch where the steps
comedown from up stairs. Do you mean on
the side of the big arch towards the steps ? Yes,
sir. Inside? Yes, sir. Inside of the big
arch towards the steps? Yes, sir. Did you
see any one standing near him ? No, sir, I did
not, no particular one. Did you see anything
peculiar about him ? No, sir. He was stand-
ng there ? Yes, sir. Which way was he
facing, towards the steps or arch ? Towards
the arch. Was he looking towards the. arch ?
Yes, sir. Did you see any one on Becky Ben's
bench? No, sir, I did not. Was Tom Pow-
ers the only one of these prisoners at the bar you
saw there that day, before Archy came down ?
Yes, sir, he is the only one that I knew. You
saw neither Monk nor Captain Tolar? I saw
Monk when they were coming down with .the pris-
oner. That was the first time you saw Monk?
Yes, sir. You noticed no one in the crowd be-
fore? No sir. Did you hear any exclama-
tions or threats in the crowd from any quarter ?
No, sir, none whatever, until they came down
with the prisoner. Who came down first—Miss
Massey and her mother, or the prisoner? Miss
Massey and her mother. Who came down with
them ? Mr. Bond and Mr. Powers went with
them to the carrige ? Did he see them as they
passed through the market house, or did they call
him to them after they got into the carriage ? I
don't know how Mr. Powers went; Mr. Bond went
with them. When was it you noticed Mr. Pow-
ers talking to them ? He was at the carriage.
You don't know whether he went with them, or
was called there ? No, sir* Did you see any-
one else go to the carriage? No, sir. Did
Mr. Powers have any conversation with the ladies
at the carriage ? Yes, sir, I think he was talk-
ing with them. Do you know what was being
t-aul? Did you hear him say jfhat was being
said ? No, sir. Did the carriage then drive
off, or not? Yes, sir. Where did Tom Pow-
ers go when the carriage drove off? I dontt
know sir. I didn't see him then any more. You
lost sight of him ? Yes, sir. You were stand-
ing still in the same place, about in front of the
arch? Yes, sir. How far from the pavement ?
About three or four feet, I reckon. When Ar-
chy came down stairs, could you see the stairs ?
Yes, sir. Was it while he was still on the stairs.?
No, sir; he was down. After he got down an
assault was made by whom ? Monk was cutting
at him when I saw him. While Archy was still
in the market house ? Yes, sir ; ho was just
clearing the arch. Did you see any one else ?
No, sir; I saw a good many others around, but I
don't know who they were. Can't you name
any of them? No, sir, only the men who had
him in charge. Did you hear any voices or any
exclamations, or any demands at that time ?—
Yes, sir; I think I heard voices to demand
him. Did you know the voices? No, sir;
I did not. You heard a voice demanding
him? Yes, sir. What were the words used,
can you tell ? I think thev said " We demand
the prisoner," or some how that way. Are you
confident that was the expression used ? I
think it was—I am not sure Was the prisoner
given up to them? No sir. You don'tknow
who it was made this demand ? No, sir. Did
you see any one with weapons at that time ? I
only see one weapon, the one that Monk had-
Was that the only weapon you saw that day, at
that time ? I saw a pistol That was la-
ter was it not ? Yes,sir. Was the pistol you
subsequently saw, and Monk's knife, the only
weapons you saw ? Yes, sir. What happen-
ed after Archy turned the arch and came down ?
Well, I saw a pistol when it fired off. Which
way did Archy move when he came down ? He
moved around to the right, as soon as he cleared
the arch. Going towards the guard house?
Yes, sir. The officers still with him ? Yes.
sir. Did the crowd retreat and leave them, qui-
etly? No. sir. Were they pressing on tlieia
all the time? Yes, sir. In this pressure he
worked bis way out, facing the right towards the
guard house ? Yes, sir; the men that were iu
charge of him were carrying him out. How far
did he get on the pavement before this pistol was
shot ? He never got but a few steps, sir, he
was very near the corner of the pavement when
he was shot. The south east corner of the
pavement, do you mean? Yes, sir; the south
east corner. He was very near there when he
was shot ? Yes, sir; first I saw a pistol and then
I saw it fired. You saw a pistol, and then you
saw it fired? Yes, sir. Who had the pistol ?
I don't know, for certain, who it was, had it.
Why do you say tor certain? I can't say,
because 1 was low down, off of the pavement,
and whoever shot it, was up on it. When you
said you could not say for certain who had
it, I thought you might have some reason
for a decided opinion? No, sir, 1 don't know.
You saw the the pistol elevated above the crowd,
and saw it fired? Yes, sir. Did you see the
prisoner Beebee, fall ? Yes, sir. You don't
know whose hand held that pistol? No, sir.
Where were you standing at the moment the pis-
tol fired ? I was standing pretty near the same
place I was all the time, about the center of tha
arch, three or four leet from the pavement. Was
the pistol fired to the right or left of you ? It
was rather to the right of me, pretty near to the
front, and rather to the light; nearly front the
way I was facing; I was facing towards the arch.
Was your right fide towards the arch, looking to-
08
PROCEEDINGS OF A MILITARY COMMISSION,
wards Archy ? Yes, sir. And this pistol was
to your right and front? Yes, sir. How far
did it appear to be from you ? It was about the
distance I am from you now, (about ten feet-)
Was the man who fired it on the pavement-or off ?
He was on. Did you see Captain Tolar shortly
after the pistol was fired? Yes, sir. Where
was he ? He was leaning against the wall, near
(he side of Hie big arch. Was that the first you
saw of him? Yes, sir. Ho was standing
against the wall near the big arch? Yes, sir
What was he doing ? He was standing; I could
not tell what he was doing. Did you see any-
thing of Monk after the pistol was fired! No,
sir. Anything of Tom Towers ? No, sir.
Did you see anything in the crowd that day, of
Bam Hall, or Ed. Powers? No, sir. Or John
Hollingsworth? No, sir. Did you see any-
thing of Henry Sykes ? No, sir. John
Maultsby/ No, sir. You did not see any
of them that day? No, sir. Did you
see Tolar when he left the market house?
No, sir. Did you see the prisoner after he was
shot? Yes, sir. How long did you remain
in the crowd before you went away ? After the
firing I went off very soon; not over five minutes
anyhow. Did you hear any exclamation in the
crowd at the time of firing, or shortly afterwards?
Yes, sir, I heard two or three voices; a couple
anyhow, "there now, Mr. Tolar has shot Archy,"
but who it was, I don't know. Was that im-
mediately after the firing? Yes, sir. You
heard where you stood, two or three voices;
certainly two saying, "there now, Mr. Tolar has
shot Archy?" Yes, sir. Both of the two
voices, did they seem to be in the same spot, or
ihesame voices, or were they different voices?
One was to the right, sort of behind me and the
other was right to my right. You are certain
of hearing two voices. I think you spoke with uu
certainty of hearing a third one ? I am uncer
tain. Where did you think that third voice
was? If there was a third voice it was pretty
near my right. Were these voices the same
voices or different voices ? Different voices ap-
parently. From different persona ? Yes, sir.
Was that expression used loud enough for many
persons to hear it? I suppose it was. As
loud os I am talking to you now ? Yes, sir. Is
i hat all you know of this matter? Yes, sir; that
is all I know, sir. You have had no talk with
Captain Tolar about it since ? No, sir; I have
not spoken to Captain Tolar since. Nor with
Tom Powers? No, sir, Nor with Monk Ju-
lia? No, sir; I have not. Have you talked
with any of these men who were under arrest,
about tills affair? No, sir; I never did.
Cross examination by the Counsel for the ac-
eused.
Mr. Burkhead, at the time they wero turning
out of the arch with the prisoner Beebee and
that exclamation about demanding the prisoner
was made, are you certain whether it was "I de-
uiand the prisoner" or " we demand the prisoner ?"
it seems to me Le said " I demand the prisoner, "
out it may have been " we demand the prisoner."
What is your best impression about it? I really
cannot say. What is your best impression? I
understand you to say you are not certain what is
your best impression; wasn't it "I demand the
prisoner?" Yes, sir; it seems that was
it. That was your best impressiom ? Yes,
sir. Mr. Burkhead, you say that at the
time the pistol was shot, you were about oppo-
site the center ot the eastern arch? Yes, sir.
And about three or four feet from the pavement?
Yes, sir. That the pistol shot was fired by
some person who was standing on the pavement ?
Yes, sir. Have you any doubt about tbat?
No, sir. You are absolutely certain that this
pistol shot was fired by the man who was on the
pavement? Yes, sir. No doubt about it?
No doubt sir. From what you saw of the flash
and smoke,and from what you hoard of the report
was the man who fired the pistol, near to the
edge or near to the center of the pavement?
Nearer to the edge. So he was upon the pave-
ment or nearer the edge of the pavement? Yes,
sir. How tar off was the man who fired the pis-
tol from you ? Well; he was about the dis-
tauce from me to Lieutenant Hargous (eight or
ten feet.) How many persons were between
you and the man who fired the pistol ? I don't
know, sir; there was a thick body of people
there. Did you know any of them ? No,
sir. Not one? Well; I don't know no one
for certain. How far did you say the man was
who fired the pistol from Beebee? Well; I
don't think he was but a short distance. How
many feet? I suppose he might have been three
or four feet. Was he directly in Beebee's rear ?
Yes sir; I think he was. Suppose aline had been
drawn from Beebee's feet at the time he wa3 shot
along the pavement, and parallel with the east
front of the market house, would that line have
passed right or left of the man who fired the pis-
tol ? It would pass more to the right. IIow
much more to the right? Not hut little.
Wouldn't it have struck his right foot? Ire-
ally don't know, sir. What Is your best im-
pressiou ? whether it would have passed far to
his right or right agaiust his right? I think it
would come right up to his right. Right up to
his right? Yes, sir. So'that the man who
fired the pistol was very nearly centrally to the
rear of Beebee, the prisoner. Yes, sir. IIow
many persons were between the man who fired
the pistol and Beebee? A good many, I don't
know, sir; I could not tell. Were there a good
many ? Yes, sir, I think there was a good many.
Were they standing still or were the moving
backwards and forwards in confusion? They
were moving backwards and forwards. Were
they leaning over to one side or the other ? I
don't know sir. I didn't see that. You saw
nothing of it? No, sir. Is it your best im-
pressiou tbat anything of that sort occurred / I
dou't think it did. You could not see any
thing of the man who fired the pistol at all,could
you? Yes, sir, I saw the hand. The hand
was all you could see/ I could see the pistol;
that was as much as I could sec, and the hand.
His hand and pistol were all you could see ? Yes
sir. Did you see anything of Sam. JPhillips that
day/ No, sir. Neither before or after the firing?
No sir, only at his store, as I passed through the
arch I saw him; I didu't see him at the market
house. You say that shortly after the firing
you heard several voices in the crowd exclaim,
"there, Captain Tolar has shot Archy? Yes,
sir. I ask you if you did not hear other voices
exclaim that other persons had shot him ? No,
sir, I did not. Didn't you hear some voices in
the crowd cry out that, "no-armed Williamson
has shot him" ? No, sir. Were there no other
cries? I didu't hear them; there might have
been. Did you say, sir, that these voices which
cried out that "Tolar has shot Archy," came
from about the place where Tolar was? One
was pretty much about the place, and the other
was off to the left of the place where Tolar
was. What do yon mean by the place; where
Tolar stood then or afterwards ? Where I saw
him afterwards. But where you saw him after-
wards was not the place from* which the pistol
shot proceeded ? No, sir. How far was it
CONVENED AT RALE
from the place where the pistol shot proceeded ?
It was five steps I suppose. To the right or
rear? It was to the rear. So that the voices
you heard to your right saying there Tolar has
shot Archy, " were five steps towards the rear of
the place where the pistol was fired ? Yes, sir.
Now, the other voice you heard, where was that?
It was sort of back to my right. That was furth-
er than you were ? Yes. sir. Fifteen or
twenty feet, wasn't it? Tenor twelve. The
crowd was thick wasn't it, between those voices
and the place^ where the pistol shot was fired?
It was very thick, but not as thick as that towards
the place where Archy was. The Crowd was
thicker from the direction where that voice was,
than it was between you and the place where the
pistol shot fired? Yes, sir; that is what I am
trying to tell, the first voice that I heard in front
of me to my right, the crowd was thicker than it
was back in the rear. Was that voice to the
rear, to the front, to the right, or to the left of
where the pistol shot was fired ? It was to the
rear. And there the crowd was very thick?
Yes, sir. I understand you to say you noticed
nothing unusual in the crowd at all before the
prisoner was brought downstairs? Yes, sir.
You know Captain Tolar well ? Yes. sir. Do
you know whether his business is about the mark-
et house a great deal? Yes, sir. Don't you
know that is his usual place of doing business ?
Y'es, sir. I ask you sir, whether you know or
do not know that whenever a trial of any impor-
ance is going on up stairs in the market house,
that the crowd generally collect there under
the market house and around the eastern arch ?
I never saw a crowd collect there unless they were
on business. Have you ever been there to many
trials.? I never was there but to one in my life.
Then you don't know any thing about it? No,
sir. When was the first time you ever told
about this matter ? I have never told any one
at all about it, until I came here to General Avery,
yesterday. How did it happen that you were
summoned as a witness 1 I don't know, sir.
You don't know who had you summoned as a wit-
ness.? No, sir. _ You told nobody about it;
from the time of the occurrence, till you came up
here and told General Avery about it ? No,
sir.
Be-direct Examination, by the Counsel for the
prosecution:
I want to understand about these voices; liow
long was it after the pistol fired that you heard
these voices? It was but a very short time.
As long as you could count fifty ? No, sir.
You don't think you could have counted fifty be-
fore you heard the voices ? No, sir. The one
that was nearest the point where the pistol fired,
was that the voice you heard first or last, or did
you hear both voices about the same time ?
About the same time. Now where wa3 the
voice that was nearest you, as well as you could
locate it; where did it appear to come from ? I
think the voice that was the nearest to me was
the one that was in fiont of me. In front ot \ou
and to yourright? Yes, sir. On the pave
xnent ? Yes sir. Was it near the spot where
you had heard the pistol fired? Yes, sir.
How near to that spot do ycpi suppose it was?
Four or five steps I think. Do you mean four or
five feet, or steps ? Four or five leet, I mean.
Where do you think the other was ? To the
rear, sort of to my right. How far was that from
where the pistol Avas fired.? Ten or twelve feet.
James Doogeas, a witness for the prosecution,
having been duly sworn, testified as follows:
Examined by the Counsel for the prosecution :
What is your name ? James Dougla-, sir.
A, NORTH CAROLINA. 6D
Were you living in Fayetteville at the beginning
of this year ? Yes, sir. Do you remember
the time Archy Beebee was killed? Yes, sir.
Do you remember what day of the month? No,
sir. Remember the season—whether it was cold
or warm ? I suppose it has been about four or
five months ago. Since Christmas ? Yes, sir.
Do you remember what day of the week it Avas ?
Yes, sir, it was on Monday evening ? Had the
sun set ? No, sir._ Monday afternoon ? Yes,
sir. What time did you |go up to the market
house—what time of the day ? I went up to the
market house—well, I Jwas there off and on all
day; my business was around there. What is
your business ? I am cooking at Mr. Fish-
blate's, near the market. And you were off and
on at the market all day? Yes, Bir. Were
y o u at the market when Archy Beebee was brought
out of the guard house ? Yes, sir. Where
were you standing at that time? On the south
side of the market house. Near the east cor-
ner? Yes, sir. Near the south east corner
on the south side? Yes, sir. Is there an
arch that opens in front of where you were stand-
ing, to the stairs steps ? Yes, sir, a large arch
opens there. I am talking about the small
arch? Yes, sir; there is a small arch opening
just over a bench. I am sneaking of another arch
a narrow arch that is not used as a thoroughfare at
all; that is not as large as the open arch ; is there
such an arch as that on the South sid§ ? Yes,
sir. You were standing near that point? I
was standing about the edge of the pavement on
the south side. I want to know how far east
you were standing—how far from the front of the
market house ? I Avas standing just around the
corner. Was Archy Beebee brought by you?
Yes, sir. Who had him in charge ? Mr. We-
myss I think was oh the right hand side of him,
and Mr. Faircloth on the left. Did you no-
tice any one else in charge of him,? Sheriff
Hardie leading the way, I think. Any
other officers in the group? I think Mr. Bond,
the town constable was along. Did you notice
any others ? A man by the name of Mr. Mo-
Guire, another police- All these officers carried
him up stairs ? Yes. sir. Did you go up
stairs ? No, sir. Did you attempt to go ? I
did not attempt to go exactly, for I heard the order
given that no body was allowed, only witnesses;
I was standing on tlie south side, and I looked over
the bench, at the prisoner when he was carried
up stairs. Does that bench run right across the
little arch ? Yes, sir. And you say you looked
at the prisoner when the prisoner was carried up ?
Yes sir. What was the reason you did not go
up ? The order was given that nobody was al-
lowed, only witnesses; and I did not go up. How
l»ngdid Archy stav up stairs? I reckon they
kept him up there nearly an hour and a half.
Where were you, during the time he was up stairs ?
About the market house. How long did you
stay at that point on the south side of the market
house.? I left there shortly afterwards. Did
you notice anything that happened in the crowd
before you left that point ? No, sir. Notli-
ing at all ? No, sir, I Avent around on the eas-
tern side of the market, and seen a man walking
np and down whittling a stick. Who was that ?
Monk Julia. Was he inside or outside ? Out-
side, sir. Walking outside ? No, sir. Where
were you standing then, Avhen you saw hinw I
Avas standing just in front of the eastern side of
the market house. Were you on the pavement
or off? I Avas off. Could you see any one
else who was inside of the market house, at that
time? I saw a good many persons. Can
you name any of them ? I saw Mr. Tolar, lie
90
PROCEEDINGS OF A MILITARY COMMISSION,
was walking np and down. What Tolar?
William James Tolar. Do you see the man
here? Yes, sir, tlierehe sits, (witness points.)
You saw him in the market house ? Yes, sir.
And you had seen Monk? Yes, 6ir. "Who
-else did you see ? I saw a good many persons;
but I particularly took notice of those two
walking, .and the rest seemed to be stand-
ing still. Could you tell any one who was in
there? No, sir, 1 don't know that I could.
Was Tom Powers there ? I did not see him
that I know of. Did you see Tom Powers there ?
No, sir. Sam Hall / No, sir. Ralph Lut
teyloh? No, sir. John Maultsby? No,
sir, I don't recollect seeing him. John Hollings
worth ? Yes, sir, I saw him. Was he inside
or out ? He was standing on the southeast cor-,
ner, sir. Was that before you went around the
■east end? Yes, sir. He was standing on the
southeast corner? Yes, sir. Who was with
liim ? He was with no one particularly—he was
looking at a paper that was pasted up on the mar-
ket—seemed to be reading it. Did he seem to
have any conversation with any one.? Not par-
ticularly, he was just standing about there. Did
you see Henry Sykes there ? No, sir, not that
Irecollect- Ana you didnotsee JohnMaultsby?
I don't think I saw him. Where were you
standing when the lady came down stairs ? Just
in front of that eastern aich. Did you notice
anything at all hefore the lady came down stairs
that attracted your attention in the crowd—or
anybody in the -crowd—hear any threats of vio
lence or anything of that sort? No, sir. You
were standing out in front of that east arch, just
off the pavement when the lady came
downstairs? Yes, sir. Who was with her—
How many ladies were there ? I think there
were two. An old lady and a young lady ?
Yes., sir. And Mr. Bond was with them? Yes,
sir. Was any one else with them ? I don't think
there was. Where did they go ? They went
out and got into a carriage. Did any one
speak to them then ? No, sir, I did not see any
one. Did you say no one did ? I did not see
anyone. You were not particularly noticing
them? No, sir. You cannot say any one
went to the carriage bnt Mr. Bond ? No, sir.
Did you see the carriage drive off.^ Yes, sir, I
believe I did. Which way did it go ? I think
it went right around the corner, it came out rath-
or north. On the north face of the market
bouse? Yes, sir. Do you know where it
went then ? No, sir, I did not look after it.
What did you notice next that attracted your at-
tention? Mr. Bond first passed by me and
went up stairs. He came back from the ladies ?
Yes, sir. And went np stairs? Yes, sir.
And shortly after that, they brought the prisoner
down, and you saw him as he was going" down ?
Yes, sir. Who was in charge of him? Mr.
Wemyss and Mr. Faircloth. Wag Sheriff liar
die there ? I think he was in front of flic pris-
oner. And yon saw Mr. Wemyss and Fair-
colth? Yes, sir. Which side of the priso-
ner was Wemyss? He was on the right hand
side of the prisoner. Where was Faircloth?
On the left hand side, sir. Was any assault
made on the prisoner as he came down stairs ?
Not until he got down on the floor. What hap-
pened then. I heard some one demand the
prisoner. Who was it? I don't know who
it was. You heard a voice demand the pris-
oner? Yes, sir. What did he say? He
said, "I demand this prisoner." What did
the Sheriff say ? I don't know sir—I could not
tell what he said. Did he say anything ? I
don't know that he did: he may have said some¬
thing: I could not tell hardly who spok6 or who
did not. Did the confusion begin with that de-
mand for the prisoner? Yes, sir. They
were pressing on towards the prisoner ? Yes,
sir. Did you see anybody in that crowd that
was pressing on? Yes, sir; when I beard the
word, "I demand the prisoner" I looked over
in the crowd and I saw a man by the name
of Monk have a knife in his right band over
the prisoners shoulder—lie seemed to be
cutting at his body, but whether he cut
him or not, I could not say. Did you hear
anything said by any one at that time? No,
sir, not particularly. Did you see any weapons
at that time ? No, sir. What happened after
that; was he the only man you noticed in the
crowd who was pressing on? Yes, sir, at that
time; I think some body there pushed him or
dragged him away, some way or other; then they
went around on the eastern side of the market
house. To go toward the guard house ? Yes,
sir, and they got about half way between the
right hand corner of that arch and the corner of
the market house. Mr. Wemyss I think fell with
the negro, he was down on the bricks and the
prisoner was right down on him at the same
time, and Mr. Faircloth was on one of his knees
on the left hand side of the prisoner. There
seemed to be a general tumble ? Yes, sir, and
every body rushed then, to see what was the mat-
ter, and I among the rest, sir. Where did you
rush to then ? I rushed up towards the pris-
oner. Did you go up on the pavement 1 No,'
sir. You rushed towards the prisoner, on the
ground, outside of the pavement? Yes, sir.
How close did you get to him? I reckon I
could have touched him in about two steps.
Did you go on the pavement at all ? No, sir.
He was close to the edge of the pavement, was
he? About midway. You got close to the
edge of the pavement 1 Yes, sir. You think
you got close enough to the prisoner to put your
hand on him? I think I could. What oc-
curred then? Alter they fell down— Did
the prisoner fall before the rush was made, or
afterwards ? Before the rush was made; that
is before I rushed to see what was going on.
Did any body else rush when you rushed ? There
was a number of people rushed np. What I
want to know is this, whether the crowd ceased
to press on, and then went back, or whether they
were pressing on the prisoner all the while ? I
think it was pressing on the prisoner all the while.
That was your impression? Yes, sir. And
then when they were down you made this rush
forward through the crowd and got close enough
to the prisoner to have laid your hand on
him? Yes, sir. Well, how did the pris-
oner get up, and what happened ? He rais-
ed up, and when he went to raise up I think
Sheriff Hardie grasped his comforter that he
had around his neck. Do you mean that
he grasped with both hands ? I think he did.
Both hands in front ? Yes, sir. That left the
Sheriff just in front of the prisoner? Yes, sir;
when the prisoner threw his head back I suppose
he was trying to get loose from the Sheriff
when the prisoner rose and threw his head
back, Mr. Tolar stepped up and laid his
hand on my right shoulder, and I gave
way to him on the right, and he raised
this pistol from under his shawl and held it right
to the man's head; you may say, about six inches
from his head and fired. Which hand was it he
laid on you ? His left hand on my right shoul-
der. And then fired the pistol right in front of
you ? Y es, sir. Did you have your eyes fix-
CONVENED AT RALEIGH", NORTH CAROLINA.
ed on his face? I don't know that I did partic-
ularly. Did you see the man who held the pis
tol? Yes, sir. You know him now; point
him out. (Witness does so.) Was that the man
that had the pistol ? Yes, sir. He fired it in
your sight? Y"es, sir. Did you see Arcby
"fall ? Yes, sir. How many men were between
you and the prisoner—the prisoner Archv I mean?
I don't know how many ; 1 don't think there was
any body between me and the prisoner. Mr. Fair-
cloth was on his knees, I think,J at the time.
What was the position that Mr. Tolar was in
when he fired ; was he leaning over or stooping ?
I don't think he was leaning oyer; I think he just
threw his band up and threw back his shawl—it
slipped off of his right shoulder, and he threw his
hand back to catch his shawl. Did you see
what he did with his pistol? No, sir; he then
wheeled off and went out towards the opening of
the market house, and I stepped back about five
or six feet from where I was standing at that time.
Who did you see there? I saw Mr. Phillips
coming through the left of the crowd with a pistol
held in his hand. After this pistol was fired you
turned off five or six steps to your left? No,
sir; I stepped right back. And you met Phil-
lips coming up from your left? Yes, sir; I
didn't meet him, he came right up towards me;
he had a pistol in his hand. What sort of a pis-
tol was it ? I suppose it was a repeater of
some kind. How long was it? It was
about a foot or eighteen inches long. It was
a large long pistol? Yea, sir. Was it
smoking? I did not notice whether it was
or not. Did you notice any sign of his having
shot. Did you hear any other pistol that day ?
No, sir, I only heard one that day. Who
fired that day ? Mr. Tolar. You cannot be
mistaken about it ? No, sir, I don't think I
can. When you met Phillips, what was said?
Well, he walked up towards mc with'a pistol in
his hand, and I asked him, if he thought that
was right, and he said "no, he didn't," and he
said "who was it," and I wheeled around to
point out Mr. Tolar, and he was out of my view.
Did you hear any exclamation at all in the
crowd at that time 1 Well, I heard some one
say " anybody who knew too much ahout it
would fare the same way." "Anybody who
knew too much, about this business would fare
the same way?" Yes, sir, that was about the
substance of it, and then Mr. Phillips said to
me, "if I was you I would not have anything to
say ahout it, for I am afraid to talk about it
myself," and I wheeled off and left the crowd.
You met Mr. Phillips with a pistol ? Pie came
up to me. And you said "Mr. Phillips, is that
right," and he says "no, Jim, it is not ?" Yes,
sir. And he then asked "who did it," and
you turned around to point out the man?"
Yes, sir. And he was out of your sight, and
some voice in the crowd announced, "if any
body knew too much" or in other words,
that it was safe for men to keep silent? Yes,
sir. And Phillips advised you to keep quiet,
and said he was afraid to talk himself? Did
you part with him, then ? Yes, sir, I left them.
When Phillips asked "who did it" j*ou turned
around to point him out who did it? Yes,
sir, I called his name at the same time I went to
point him. Did you see who was standing'
near Tolar when he iired ? No, sir, I did not.
You don't remember who was standing
behind him or on either side of him ? No, sir
Did you see anything after the man was shot, of
Monk Julia? Yes, sir. What was be doing ?
He made a rush at the prisoner again with his
knife, and Mr. Nixon grasped him around bis body
and kept him off. What did Monk say, when
he was after the prisoner ? I don't know what
he said exactly ;• he rushed at the prisoner with
his knife in his hand. Did you see any other
weapons besides Monks kni f'e,, and Captain Tolar's-
pistol? Yes,-sir;. JohnHollingsworth had a pis-
tol, a belt and I think a knife. What was he doing
when you saw him with them?" He was stand-
ing at the South side of the market house reading
an advertisement- Was he talking to any one else,
or any one standing with him ? No, sir. Did
you see or hear him take any part in the matter
at all 21 No, sir; I did not see him, or hear
him make any threats at all. Did you see-
him afterwards,, that day? I don't know
whether I did. I mean before the man was shot
or just afterwards 2 No, sir; I don fc think I.
did; he had on a blue jacket, and he was about
the only one that had on a blue jacket; and I
would have noticed him if I had seen him. Did
you see any one else take any part in> this affair,
except these persons you have mentioned ? No-
sir. Did you see Ed, Powers there- that day T
No, sir. Sam Hall? No, sir. Ralph Lut-
terloh ? No, sir; not that I recollect,- sir..
John Maultsby T Not that I recollect, sir. You
have told all that you know about it to- the best of
your beliet ? Yes, sir.
Cross examination by the Counsel for the acous-
ed:
Your name is James Douglass?' Yes, sir-
Otherwise called James Hawley? Yesr
sir. Lived in Fayetteville all your life ? Yes,
sir. Formerly a slave of Mrs. Elisa Hawley.?'
Yes, sir. That is who you are 2 That is who
lam, sir. Jim, who came down the market
house stairs just be'ore the prisoner was brought
down 2 Mr. Bond came down there, sir; 1
don't recollect whether he was first to come
down or not ;• he is the only one I recollect-
Did he come down before Miss Massey and
lier mother 2 He came down with them.
Who came down next? I could not say who-
came down next. He went back up stairs.
See if you recollect whether anybody came
down between Bond, Miss Massey and lier mother,
and the party in charge of the prisoner—did any-
body come down between these ? I don't re-
collect. Do you recollect whether any witnes
ses who were up there came down between them 2"
I don't recollect for I did not know who the wit-'
nesses were- How large a crowd was there
under the market house that day 2 Well, sir, I
could not say the number, but I reckon there was-
a crowd of about forty or fifty, may be, met there
first and the crowd got larger and larger. Is it
any unusual thing to see a large crowd about-
there when an important trial is going on up-
stairs 2' I don't know that it is. There was-
nothing in the crowd'there that attracted your at-
tention particularly was there, before the.prisoner
was brought down ? No, sir, nothing attracted
my attention particularly. Nothing occurred to-
attract your attention particularly 2 Only I saw
a man walking up and down with a knife in Bis
hand whittling a stick. Is that unusual ?
No, sir. How came that to attract your attention ?
It did not attract my attention any more than any-
thing else, only it was connected with the man
who appeared to take part in the mischief, sir.
Then the crowd was quite orderly 2 'Yes, sir, it
seemed to be. Were most of them sitting
down? Yes, sir, theie were some sitting down
and some standing up. And out of that crowd'
of forty or fifty the only persons that you noticed
before the prisoner came down stairs, that you
can recollect, was Monk, who was walking up
and down whittling a stick, and Captain Tolar?
Ye.i, sir. How came you to remember Captain
73
PROCEEDINGS OP A MILITARY COMMISSION,
Tolar ? Well, sir. he was about the largest man
that was there, and the only man that bad his
shawl on—I could see him walking up and down
midway of the market house. Was he doing
anything ? No, sir. Was he saying any-
thing? No, sir, not that I could see. You
could see him do nothing and hear him say noth-
ing? No, sir, I didn't see him do anything or
hear him say anything. You say when Archy
came down stairs that you think Sheriff Hardie
was in front? Yes, sir. And Wemyss on the
right hand? Yes, sir. And Faircloth on the
left ? Yes sir. And other members of the
police force behind him? No, sir, I didn't say
that—I don't know whether there were any others
or not, I don't recollect seeing any others—I just
merely seen the men that had hold of him.
They came on that way then, until they had about
cleared the eastern arch of the market-house ?
No, sir. They just got outside of it, between
two benches, where Becky sells her cakes, and so
on. Then they had cleared the arch? No,
sir. They had not cleared the market-house ?
No, sir. They were under the market-house.
And it was then you heard some one say, "I de-
mand the prisoner" ? Yes, sir. Are you
sure of that— Can't you be mistaken about
that ? No, sir. Don't you know he said,
"we demand the prisoner" ? No, sir. You
know he said "I demand the prisoner"? You
swear he said "I demand the prisoner" ? You
swear that? I don't swear that. Do you
think that is what he said ? I am not positive
about that, but he said something to that effect.
Do you know who that was? No, sir. About
that time you saw Monk reach over with his
knife in his hand, after he heard the demand for
the prisoner? Yes, sir. Was Monk the only
person that you saw rush upon him ? He was
the only man that I saw that had any weapons at
that time. Did you see any more weapons in
the hands ot anybody at all just before the prison-
cr was shot ? No, sir. I don't think I did.
Then they carried the prisoner down to near the
south-east corner of the market-house, the sheriff
being still in front, Mr. Wemyss upon his
right hand and Mr. Faircloth upon his left ?
They carried him down between the cor-
ner of the eastern opening and the
south-east corner of the market house.
That was near thefeouth east corner of the market
house. Yes, sir J When they got there_ you
say that the struggle took place ? Yes, sir; I
think Mr. Wemyss fell. And the prisoner and
Faircloth all went down together ? Yes, sir.
Just at that time, I understand you to say you
rushed up from the position you occupied, and got
up near that south east corner of the market house
bat off the pavement, and so near the prisoner that
by reaching out your hand you could have touch-
ed him. No, sir; Id on't say I could have touch-
ed him then; I suppose I might have touched him
by taking a step. Bow far were you off at that
time from the edge of the pavement? There
was a tree that stands just off the edge of the pave-
ment, and I was standing against that tree._ The
last tree ? There was two trees, right in the
eastern part of the market house with box es around
them and one without, and I was standing right
near that tree without a box. How long were
you standing at that place after you got there
before the pistol shot was fired ? When the
rush was made they all rushed together, it
was only a short time. At that time you
say, while standing there, the man went down
and he was raised up, and when he rose up
Mr. Wemyss, was on the right hand and the
Sheriff was in the prisoners front ? I
was not confident, but I think it was Sheriff Har-
die grasped his comforter. You think he had
it in both hands ? I think he did. Are you
certain the Sheriff had hold of him at all ? I am
not; some one had him. Are you certain you
saw Sheriff Hardie at that time at all ? I ceuld
not say for certain, whether it was him or not, but
the man grasped his comfort, sir, and held him.
You are certain that some one in front grasped
the comforter with both hands and held him up ?
No, sir ; he was pulling him down, it seemed to
me like. Did he grasp that portion around hia
neck with his hands ? About the ends of the
comforter with both hands I think, and when he
grasped the ends of the comforter the. prison-
er threw his head backward. Just at that time
I understand you to say, a man came up and with
his left hand upon your shoulder, sort of turned
you back? Ye3, sir: I gave way to him.
Was he upon tho pavement; or off? He was
not on the pavement he was off. I ^thought
he was standing off the pavement. Wa3
there any body between you and him ? I
could not say whether there was or not. Mr.
Faircloth I think was between you and him ?
I mean right on the right; the man rushed upon
your right; was there'any body between you and
the man on your right? No, sir, no body; I
think I was looking over Calvin Hunter's shoul-
der. Which one of Calvin Hunter's shoulders ?
His right shoulder. So Calvin Hunter was to
the front of you ? Yes, sir, he was rather to
the left of me; he was not exactly in front of me,
he was to my left hand. So there was 110 body
between you, immediately on your right, and the
man who pushed you aside and fired the pistol?
Not that I know of. Do you know whether it
is so or not ? There might have been some one
there, and I never took any notice of him. M as
the man close up against you? Yes, sir.
That is my'question; whether there was any man
between you, immediately on your right, and the
man who fired the pistol ? There was not any
man between me and the man who fired the pis-
tol. What did be say when he rushed up ? I
don't know that he said anything at all. Did
he say anything? 1 don't believe be did.
Didn't you hear that man say, " make way, give
i way?" No, sir, I did not hear that; I would
not have known the man was there at all if ho
■ hadn't pushed me out 6ue side, and as I felt him
; pull me I gave v»ray on the right. When that
man rushed up and pushed you, that attracted
your attention, and yon then looked right at him ?
No, sir, I turned around a little to the right, and
■ as 1 turned, I saw the hand come up, and the man
'• shot him. Did he have the pistol leveled when
1 you first saw it? No, sir, I saw it when it
; went up; his hand was raised up over his
■ right side. So he had his hand over his
• right side and presented the pistol and fired?
1 Yes, sir. And at that time he was standing
' straight. I reckon he was standing straight, I
'■ couldn't say whether he was standing np there
• either straight or crooked. Was the pistol
3 cocked or was it a self-cocker? I could not say
3 that. Did you see his finger on the trigger ?
1 Not particular. Did yon see the smoke from
t the muzzle? I don't know that 1 saw the
3 smoke, I smelt the powder. Did you see the
3 smoke from the tube 1 I didn't notice about
3 it. So you noticed no smoke? I saw him
when he fired the pistol and he turned around and
1 left. Did you see the fire escape from the
1 muzzle. Yes, sir. And you saw no smoke
3 from the muzzle or tube? I never noticed
about the smoke particular. And yon swear
I that that man shot the pistol ? Yes, sir. Well,
CONVENED AT KALEIGH, NORTH CAROLINA. 7'd
as soon as lie fired the pistol, then what did he
do ? He wheeled around and made that motion
with his shawl; his shawl slipped off of his right
shoulder. Did he make that after he wheeled
around or before 1 He made it as soon as he
fired the pistol. So the shawl slipped off of his
right shoulder? Yes, sir. Did not the shawl
slip off his right shoulder? was the shawl fas-
tened? I don't know sir, whether it was or
not. What sort of a shawl was it ? It was a
gray kind of a shawl; I call it a drab-colored
shawl. You would not call it a gray shawl?
Not exactly. Was it as gray as your coat?
No, sir. And you are sure no part of the
shawl slipped off from his left shoulder ?
That was ail that was holding the shawl at that
time; it was off of the right and hanging on the
left. Don't you know that as sor.n as he fired
the pistol he took that shawl and threw it around
him; did not he catch it with his hand? No.
sir; I don't think he did: he fired the pistol, and
as soon as he fired the pistol he made this move-
ment with hip arm, catching at the right hand
corner of the shawl. Did he get it back on his
shoulder? I don't know; that was t lie move-
, ment he was making. Did that shawl strike
you? No, sir. Which way did the shawl
fail when he threw it back, to the front, the right
or to the left? As soon as he fired the pistol he
turned around and made that movement with his
shawl, with his pistol in his hand. Did the end
of the shawl fall to the right or front ? I could
not see whether it did or not. So Calvin John-
r.on was the only man you saw about the man who
fired the pistol? He was about the only one
that I recollect of. Do you remember John
Armstrong? I know him. Did you see John
Armstrong there? I saw him about there.
Did you see him at that time? I could not
say. Don't you know John Armstrong was
standing betweeen you and the man who fired the
pistol? No, sir ; I don't know it. Was not
he standing there? I could not say, sir; I
could not say whether he was or not. Did not
you know ? No. sir; I do not. You have just
sworn there was not room enough tor anybody to
be between you and Capt, Tolar, and now 1 ask you
whether John Maultsby was standing there or not ? i
Between me and Captain Tolar I think it was
impossible for any man to have got. Then you
swear he was not standing there ? I won't <
swear. But you say it was impossible for any
man to be there. I think it was. What sort
of a pistol was it ? It was a long pistol—I don't
know the name of it, I reckon you would call it a' ,
repeater—a pretty heavy pistol. What did he
do with it after he fired it ? I don't know what
he done with it. Did he throw the pistol to his
left side or to Iris right side ? He brought it ,
around to his right side. Did he put it back in .
the right side of his person ? I did not see him (
put it there. Were you looking at him as he ,
turned around ? As soon as the pistol fired I
turned immediately, and Mr. Tolar turned,
and he made that motion with his pistol. ]
Now, Jim, just at the time that Captain
Tolar fired the pistol, did anybody stand right |
near him, and right near you on his left side, or t
anybody make any remark to him ? Not that I -
heard, sir. Didn't you hear a man standing '
there, say, "there, Captain, you have shot that |
poor negro ? I don't know, sir, whether he did '
or not; I could not say, sir. I come here to state f
what I know myself. You are sure you did not ]
hear that remark ? I am not so sure; I might '
have heard it, and at the same time never taken (
any notice of it, sir. You can't recollect that 1
you heard that remark 7 No, sir. And you <
were right near him ? Yes, sir. Well now, f
at the time Tolar turned hack did you see Sam.
Hall near him? No, sir. Did you see Ed.
Powers near him? No, sir. Did you see
anybody near him, that you remember. No,
sir, not in particular. At the time Tolar fired
that jjistol, was there anybody standing between
him and the prisoner Beebee ? Not that I know
of, Mr. Faircloth was on his knees I think—if
anybody was between him and the prisoner he
was the only man. So you say Tolar was on
the inner circle—that there was nobody between
him and the prisoner, and that he put the pistol
w thin an inch or two of his head? No, sir, I
said about six inches from his head. And there
was nobody between Tolar and the prisoner at
the time he fired ? Not that I know of sir, ex-
cept it was Mr. Faircloth, and he was down on
one ot his knees at that time. You profess to
have seen all these things? I don't profess to
see a man between me and the prisoner. You
could have seen the man between you and the
prisoner ? I could have seen one if I had looked
and if there had been one there. You say you
don't know what became of Tolar after tha ?
He turned right off and went through the crowd.
Who have you talked this matter overwith before
you come here? I don't know that I have
talked it over with anybody particular. Have
you talked it over with Mr. Fishblate since he
went back a from Raleigh? I don't know but
what I did.' I think you say you live with Mi.
Fishblate? Yes, sir. As soon Mr. Fbhblate
went back from Raleigh you and lie talked this
matter all over. No. sir, we did not talk it all
over. You talked over most of it ? No, sir,
he was sick at the time I was summoned here, and
he asked me what I knew about it. and I told him
I knew the man that killed him, and that is all the
satisfaction I gave him. Are you certain that,
you saw that carnage with Miss Massey and
lier mother go cff that day ? Yes, sir. Are
you certain you saw them get into that carnage at
all? I did not look after the ladies when they
brought them down. You did not see them get
into it at all? No, sir. Then you don't know who
helped them in? No, sir, I don't. And you
don't know which way the carriage drove ? No,
sir, I don't. But you think the horses heads
were turned towards Mr. Fishblates? , Yes, sir;
Can't you say whether that carriage drove
down towards Liberty street ? No, sir. Can't
you say whether it did drive there? No, sir.
Can you say it drove down Gillespie street or to-
wards Robert Mitchell's ? 1 could not say that
either, I heard it when it moved off. Were you
excited on that occasion ? I don't know that I
was before the pistol was fired—I think I grew a,
little excited, I don't know anything about it; of
course I did not feel any more excited than I
would have been at any other time. Were you
armed that day ? No, sir. Had younoarms
about you at all ? No. sir.
Re-direct examination by the Counsel for the
prosecution;
I want to understand your position a little at the
time this pistol fired—I understand you to say
that you were at a point where, by reaching over,
you could have brushed the prisoner ? Yes, sir.
You were standing there near that little unboxed
tree and he was about the middle of the side
walk and about the middle of the arch? Yes,
sir. And the man who fired the pistol laia his
hand on your right shoulder and pulled you around?
Yes, sir, And you think you were so close to
Captain Tolar that no one could possibly have
been between you ? I don't think any man
could have been between us, sir. You saw the
flash from this pistol—you don't remember having
74
PROCEEDINGS OF A -MILITARY COMMISSION,
seen the smoke ? No, sir. Was any other
pistol fired that day? • No, sir. When you
saw Mr, Phillips just after the firing of this pis-
. tol, how was he dressed? He had on his erdi-
nary clothes. Did he have on a shawif I dis-
remember whether he had or not ? I- don't
think he had. Your impression is that he did
not? Yes, sir, he had his pistol laying on his
hand, that drew my attention more than anything
else.
, A motion was then made to adjourn until ThurS-
day, August Gtb, at 11 A. M.
The Judge Advocate objected to the adjourn-
ment:
" The expense of tbi^s trial is about a hundred
dollars daily, and there is no reason why this case
should not go on without delay. There are wit-
nesses enough yet for the prosecution, who are
here awaiting examination, to occupy the time of
the Commission at least four days. Of course the
Commission has it in its power tp adjourn as
long as it pleases, but I ask it in justice to these
prisoners who are confined, and in behalf of other
prisoners, who cannot be tried until this trial
closes, that the Commission throw nothing, in the
way of completing these trials at the earliest pes-
sible day,"
The motion to adjourn till Tuesday, August 6,
was amended, and amotion was made to adjourn
till Monday, August 5th, at 11 o'clock A. EL,
which was carried, the vote standing:
For adjoin nment:
Brevet Lieutenant Colonel Thos. P. Johnson,
Captain A. Q. M„ U. S. V.; Second Lieutenant
C. K. Haegous, 40th Infantry ? Second Lieutenant
Louis E. Granger, 40th Infantry.
Against adjournment:
Colonel J. Y. Bomeord, 8th Infantry; Captain
P. H. Remington, 8:h Infantry.
Whereupon the Commission adjourned to meet
on Monday, August 5th, at II A. M.
Raleigh, N. G., Aug., 5th. 18C7, 11 A. EL,
The Commission met pursuant to adjournment.
Present all the Commission, the Judge Advocate,
the Counsel for the prosecution, all the Accused
and their Counsel.
The reading of the testimony taken on Friday,
August 2d, was waived, there being no objection
thereto.
Friday's proceedings were then read.
It was moved that the whole of the record re-
fen'ing to the adjournment be expunged, which
motion was carried.
The proceedings ©f Friday, the 2d inst., having
been read were then approved :
James McNeill, a Witness for the prosecution,
having been first duly sworn, testified as follows:
Examined by the Counsel for the prosecution.
What is your name ? James McNeill. Where
do you live ? Fayetteville. Were yon living
thereat the beginning of this year? Yes, sir;
have lived there all my life. Were you living
there the day Archy Beebee was killed? Yes,
sir. What is your business in Fayetteville?
Cabinet maker. Were yen at the market house
the day Archy was killed 2 Yep, sir, I was.
What other name had Archy Beebee, besides
Beebee '?' I don't know, I always called him
Archy Warden, he always belonged to Mr War-
den. Were you at the market house when he
was killed? No, sir; I was net. Were you
there before? Yes, sir, And afterwards?
Yes, sir. What time did you get there first that
bay ? I was'coming from dinner; I think it was
.betwixt two and three o'clock when I first came
down. I went to dinner- at one o'clock. When
you got there, was Archy up stairs in the Court
rootan ? No, sir. He had not come from the
-Guard House? No, sir. Where were yea
standing when he was brought from the Guard
House? I was standing in. the middle of the
street, sir. At which end of the market house ?
The end towards Cambeltown bridge, the east
end. Opposite the big arch ? Yes, sir. At
the east end of the market house? Yes, sir.
In Person street? Yes, sir. Did you see
Archy when he was brought up-? Yes, sir.
Who was with him ? I don't recollect any one
except Mr. Wemyss ? Was nobody else with
him ? Yes, sir. What became of Archy
when he got there ? Pie went up stairs. Did
you attempt to go up stairs ? No, sir. Where
did you move to after he went up stairs ? I
kept walking around there from one place to an-
other. How long was he up stairs? He
was up there some considerable time. An
hour? I don't know, sir, I guess probably
about that time. . Was there any crowd there
while he was up stairs ? Yes, sir, a very large
crowd. How many persons ? I don't recol-
lect, there was a good many, though. As many
as a hundred ? I would not like to say for
certain. Did it grow any larger or less while
you were there? Some came after I was there.
Did you go under the market house at all?-
No, sir. Did you notice anybody in
the crowd, any of these prisoners at the
bar, or any one else before be came down,,
while Archy was up-stairs ? Yes, sir. Who
did you see there ? I saw Captain Tolar, and
Mr. Powers, and Mr. Monk. Tom Powers do
you mean? Yes, sir. Did you notice any
one else in the crowd, in conversation with them ?
Not that I recollect. Were you standing out
there when Miss Massey came down stairs?
Yes, sir. Who was with her. Air, Bond, I
think, the town constable. Where Were you
standing when she came down stairs? Right
in front of the arch, out in the street. Where
was- the carriage ? It was out to the right of
the arch, towards Mr. Taylor's store. Was it
in the middle of the street ? It was a few paces
from the pavement. . Out side of- the crowd ?
Yes, sir. How near were you to the carriage ?
I guess I was about as near as I am to you,,
(about 8 feet.) How near were you to the car
riage when the ladies got.in? About as far as
to those two gentlemen, (about 12 or 15 feet.)
Did any one else go to the carriage besides Mr.
Bond, to speak to the ladies? Mr. P. Taylor
went t© the carriage and spoke to the old lady,
and I think he spoke to the yonng lady. Did.
you see any one else ? - Well, I don't recollect
I recollect personally seeing him there—and Mr.
Powers, aftei1 Mr. Taylor stepped oli, this young
lady's mother called him there. Were you
near enough to hear what was said? I over-
heard them say, after he started away, she says to
him, " Tom, don't you have anything to do with
it—you go home," and he was crying at that
time. He was weeping at the time? Yes,
sir. What did he say in reply ? He shook
his head. Which way? Like he said he
would not have anything to do with it. Then at
that time I said to him, "Mr. Powers is that
young lady a relation of yours," he says "yes, she
is mj' niece," I says to him then, "the times have
changed so much during the war, and since the
war, I don't know those who I used to know,"
and by that time Captain Tolar came up, and
touched him on the shoulder, and they stepped
off together. Where did Tolar come from ? I
do not know, sir, he was to the left of me when
he came up. Where were you facing ? I was
lacing towards where the carriage was standing.
CONVENED AT RALEIGH, NORTH CAROLINA.
75
Did he eome from further out in the street, or
towards the market house? From towards the
market house, I think. Were you facing Mr.
Powers when you were talking to him? Fes,
sir. Which shoulder did Captain Tolar touch?
I don't recollect. What occurred then? They
walked up towards the market' house, and I
walked on behind them a few steps, and I heard
Captain Tolar say to Mr. Powers, " when he
comes"—(I saw the young man standing up at
the door,) Mr. Tolar says " when he conies down
you grab him, and break the ice, and that will be
all you will have to do,"—something like that.
Was that all Captain Tolar said? I think it
was, sir, if I mistake not. " You grab him and
break the ice, and that is all you have to do ?"
Yes, sir, and I turned my back and ran as hard as
I could towards Mr. McFoxe's store. Captain
Tolar came up and touched Mr. Powers on the
shoulder, and you followed them up ? Yes, sir.
And you heard him say what? He says "■ as he
comes down you grab him and break the ice, and
that will be all you will have to do." You think
those are the exact words ? I think so, as well
as I can recollect. It has been so long 1 may have
forgotten the exact words—but I think they are.
It alarmed you,what was said, sufficiently to make
you run away,? Yes. sir. Did you see any
weapons in the crowd.? I only saw one, that
was a pocket knife which Monk Julia had before
the man came down, whittling a stick, butl did
not know what he was going to do with it. You
then ran off after this conversation ? Yes, sir.
Where were you jvhen the pistol fired ? I was
at Mr. McFoxe's store. Was that in sight of the
market house? Yes, sir. How far from the
market house—fifty yards ? I don't think it was*
quite fifty. As far as across this room from
corner to corner ? Yes, sir; about that distance.
You heard the pistol? Yes, sir. , Did you go
back ? Yes, sir. What did you see when you
■went back? I saw this man laying there.Dr.
HcDuffie was attending him, and Mr. Wemyss was
trying to make the crowd scatter, so that they
could get air to him, and Mr. James Strange was
there. He was coming from where the prisoner
was, and he was saying it was a pity they shot
Rim down that way. And after that some strange
gentleman—I never saw him before—he was say-
ing something and Mr. Eddie Powers said that he
thought it was nothing but what was right. Did
you see any weapon upon Mr. Eddie Powers at that
time—or anything peculiar in his appearance?
No, sir ; I saw no weapon. He looked very pale.
And he said it was perfectly right ? Yes, sir.
That was just after Mr. Strange had been denoun-
cing it as improper ? Yes, sir.
Cross examination, by the Counsel for the ac-
cused.
Your name is McNeill? Yes, sir. What
family did you formerly Jive with? Mr. Dud-
• can McNeill. Any relation to George McNeill ?
None.that I know of, sir. You came there be-
'tween two and three o'clock ? Yes, sir ; I was
there about that time. I understood you to say
you stood opposite the arch as Beebee was GomiDg
"down stairs, or as the ladies were coming down
stairs ? As the ladies "were coming down stairs-.
About the middle of the street? A few paces
off from the arch. How wide is the street there ?
1 don't know sir, a right good sized street.—
Seventy-five feet ? No, sir; I think not. You
were not at the middle of the street ? I was
standing in the arch, in the street a few paces from
the arch. You were nearer the market house
than the middle of the street ? Yes, sir. You
were standing how far do you suppose from the
market house ? About as far as from me to you
sir. About fifteen feet from the market house ?
Yes, sir. Were you further from the market
house than the carriage? The carriage was
right behind me, sir; rather to my right, going
into the arch. .And you say you were about
as far from the carriage as from me to you ? No,
sir, I did'not. How far were you ? I never
took any particular notice. I understand you
to say, in answer to the government, that you
were about as far as from you to us, from the
carriage? I said when Mr. Powers was talk-
ing to me. Did you move? Not till Mr.
Powers wont up and said something to the la-
dies; then I stepped hack. Which way?
From the carriage. How near to the carriage
were you at the time the ladies got in ? Weil,
I was not any distance, scarcely. As soon as
Mr. Powers -walked .up to speak to the ladies,
you walked back ? J stepped back a pace or
two. But you heard what the old lady said ?
Yes, sir. And she said to Mr. Powers as he
walked away, " Tom, don't you have anything to
do with it." Mr. Powers went to the carriage
and he started to step off, and she called him
back, and she whispered to him, as well as I can
understand, it was "£0111, don't you have any
thing to do with it, yg» go home." You swear
that she said that ancfypu heard her say it ? Yes,
sir. That was the second time she called him ?
The first time he went himself. And 'then he
moved off' and she called him back, and she said
that to him/ Yes, sir. And he shook his
head as if he agreed not to have anything to do
with it? Yes, sir. Then as he walked off
Mr. Tolar met him and talked to him ? No,
sir, I spoke to himself, first. And you asked
whether the youngdady was not akin to him, and
he stopped and talked 'to you? Yes, sir.
Which direction was Powers making then from
you ? He walked right np towards the market.
And he met Tolar? No, sir, Tolar came up
during the time be was talking to me. Did
you hear Tolar say anything to him ? He came
up and touched Mr. Powers, and after they come
up towards the market I heard him say, ''Torn as
he comes down you grab him and break tlie ice,,
and that will be all you have to do," and at that-
time I turned my hack and run. How far was
he from yon when fie said that ? They were
right before me; I was walking along behind
them. Yon walked on up towards the market
house? Yes, sir. How far did you walk
with them ? Some two or three steps. You
heard nothing else said ? No, sir. You heard
nothing else of the conversation between the olu.
lady and Tom Powers, than what you have told ?
No, sir. You sayyou got there about three o'clock?
Yes, sir. Ana you stood about the middle of
the street for some time ? When I first went
there I was standing a good ways in the street
fronting the arch. And yon waited till Arcby
went up stairs? Yes, sir. Did not walk
under the market house at all ? No, sir. And
you stood there all the while Archy was up stairs ?
I was walking around about there. And you
say you saw there Monk and Torn Powers and
Capt. Tolar? Yes, sir. You saw a number
of other people ? Yes, sir. You don't recol-
lect#who? No, sir. And then yon took
your stand opposite the Arch about the time the
ladies came down ? Yes, sir. When did you
first give in your testimony about this matter?
When I went around to the shop, I told one of the
boys, and I have not told any one since, as I re-
collect, because I did not want anything to do witli
it. You have not mentioned it from that time to
this ? Not that I recollect. You have not
been called upon to tell what the old lady said to
76
PROCEEDINGS OF A MILITARY COMMISSION,
Tom Powers from that time to this ? ,On!y as I
spoke it to the General as I came up. You have
not told wlmt Tolar said to Powers from that time
to this? No, sir. This is the first time vou
have had occasion to recall the words ? Yes,
sir. And you swear to them according to your
best recollection ? Yes, sir. Areyou p isitive
that those are the words they used? Yes, sir.
You have no doubt about it at all? To the best
of my knowledge, it is. You have n<j doubt
about it ? No, sir.
Re-direct examination, by the Counsel for the
prosecution.
Did you see any one hare any conversation with
sMr Bond as he went to the carriage ? No, sir.
Questioned by the Commission :
W hen Capt. Tolar touched Tom Powers on the
shoulder, and said to Powers "you grab him as he
comes down and break the ice, and that is all you
will have todo," did Capt Tolar say anything else,
that he himself or anyone else would do anything
afterwards? No, sir; I did not hear liim say
anything, because soon as I beard that word I ran
right away. Did he use any such expression as
"and we will put him through?" Yes, sir; I
think he did; I forgot that, sir.
Re-direct examination resumed; by the Counsel
for the prosecution.
Now state the conversation again, the whole of
it, as it occurred ? Mr. Tolar says to Mr. Pow-
ers: "You grab h'm as he comes down and break
the ice, and we will put him through," that is the
words. Are you certain that that expression
was used ? Yres, sir: that was the expression.
Y'ou said just now you had never stated this eon-
versation before; you mean to no one before ? I
said to no one except you and Gen. Avery. Was
that conversation the same as you stated to us, with
that addition of " we'll put )iim through?"
Yes, sir. Are you confident tfcat expression
was used ? Yes, sir.
The Counsel for the prosecution said he had no
objection to having the witness cross examined on
that point.
Re-cross examination, by the Counsel for the ac-
cased.
How came it you did not mention that just now?
I forgot it, it was the first time I was ever in a
crowd and I got excited. Didn't you tell General
Avery that " you grab him, ana we'll put him
through?" Y"es, sir. But you forgot it a lit-
tie whilp ago, haven't you forgot anything else ?
I think not. You have tola everything now ?
I think so. When did you come up here ? I
came up here Thursday. Have you been talking
to any one about this matter as the trial went on?
No, sir. The only persons you have spoken to
about it since February are General Avery and
Colonel Hay wood ? _ Yes, sir. * You have not
told another soul since? Not that I recollect,
sir.
Phillip Pickett, a witness for the prosecution,
having been first duly sworn, testified as follows :
Examined by the Counsel for the prosecution.
What is your name ? Phillip Pickett. Do
you live in Fayetteville? Yes, sir. Have you
lived there all this year ? Yes, sir. Did you
know Archy Warden or Archy Beebee? Yes,
sir. Which name did he go by ? Both sir.
When did you see him alive last ? I don't kynv
sir exactly. Do you remember what day of the
week it was ? I saw him Monday. Do you
know what month ? No, sir. 'It was since
Christmas, wasn't it ? Yes, sir. Were you at
the market house when he was carried up stairs ?
No, sir. You got there while he was up stairs?
Yes, sir. What time of the day was it .when you
got there? 1 don't know exactly the hou>\
After dinner or before dinner? After dinner.
Was the sun set? No, sir. _ Wnen you got
there he was up stairs ? Yes, sir. Wheredid
you go when you first got to the market house ?
I stoodatthe south east corner ofthe market house.
On the east face? My face was directly west.
Which wall would your elbow touch,—your rign t
elbow ? It would touch the east corner. Then
you were a little outside of the market house?
Yes, sir. The market house was right west of you ?
When you were looking west, you could see
right straight ahead ? Yes, 6ir. Were you
looking in the direction of Hay mount? Yes, sir.
Could you see up Hay street ? Yes, sir. Was
any crowd there ? No, sir. I saw no crowd at the
time. Mr. Tolar was standing, and Monk and a
young man by the name of John Hollingsworth,
and I think Dr. McDuffie was standing there
talking,—I am not certain about Dr. McDuffie,—
and John Hollingsworth had a pistol, and he had
on a blue jacket, and his pants tucked in his
boots. He had a pistol where ? On his right
side. Where every one could see it? Yes,
sir. Did you see any arms on these other
men? No, sir. Where were these gentle-
men stanaing? At the south arch. Was
there any crowd at that time inside of the market
house and the east end ? Not that I know of;
I was not looking that way. There was no noise
there? No, sir. You say these gentlemen
stood about the south arch of the market house ?
Yes, sir. They were talking together, were
they? Yes, sir. Did you hear what they
were saying ? No, sir. What occurred next ?
I walked further down to the east arch, and stood
there with a boy by the name of Andrew Haynard,
who lives in town now; we both stood there talk-
ing a long while, when Mr. Bond came down
stairs with this young lady. Before Mr. Bond
came down stairs, did you notice any crowd in-
side of the market house?- No, sir, only I
notif.ed'Mr. Powers setting on the bench where
Becky Ben keeps her victuals. Which Powers ?
Tom Powers. • Was he the only person in the
market house? No, sir, a good many persons
were around there, but I didn't notice who they
were. Did you see anything more of Captain
Tolar and Monk, and John Hollingsworth after
you had seen them inside the arch? No, sir,
they were walking about the market; they walked
through the south arch into the market. You
saw them after you got into the east arch; you
saw them go back through the south arch ? They
just walked right through. Did they go out of
the market house? Not that I know of.
Where did they walk through to ? They were
just walking about. Did they walk down to-
wards the east arch? Not that I know of.
Were they together when they were walking
about? "No, sir, not after they were standing
talking. They were not connected injany way ?
No, sir. Well, did you hear any conversation
pass between Captaiu Tolar and any one el se
1 did not, sir. You say you saw Tom Powers
seated on Becky Ben's bench ? Yes, sir. Was
that after you had seen Tolar at the south arch ?
Yes, sir. When you first came around to the
eastern arch? Yes, sir. Where were you
standing when that young iady came down stairs
with her mother. Just on the outside of the
pavement at the east arch. Just off the pave-
ment? Yes, sir. Opposite the east arch?
Yes, sir. Well, what happened then ? Mr.
Bond came down with the lady and went to the
carriage and helped her in, and Mr. JohnMaults-
by said he would go and see if they found him
guilty. Stop one moment; was that the first
CONVENED AT RALEIGH, NORTH CAROLINA.
77
time you saw John Maultsby that day? Yes,
sir. Where was he standing when he said ho
would go and see whether they found him guilty ?
At the south east corner, Where did he go ?
He went to the carriage. Who did he talk to
when he got there? Mr. Bond. Did you
hear what he said to Mr. Bond? He asked
whether he was found guilty, and he said "yes,"
and he came down to the south-east corner,
where Mr. J ones was standing, and Mr. Jones ask-
cd him how it was, and he said he was found guilty.
You heard all this said ? Yes, sir. Wuat be-
came of Maultsby then ? He walked up towards
the north east corner, and I don't know where he
went to. Did you see him pass the main arch ?
Yes, sir. He moved towards the north east
corner? Yes.sir. The last you saw of him,
he was near the North east corner? Yes sir.
What happened then/ Mr. Jim Jones, before be
walked up, he said "John, mention that other
thing." Was that just after he told him the
negro man was found guilty? Yes, sir. What
else did he say ? That was all the remarks I
heard; "John mention that other thing." I
thought you said, he said *' John don't forget
it? No, sir. What did John say? He
said he would and walked off then to the north
east corner, and then Mr. Jim Jones walked around
south and sat down on a bench. One ot those
benches that runs across the little arch? Yes,
sir. On the outside ? Yes, sir. What hap-
pened next ? After a while they came down
with Archy, How long was it after this conver-
sation, that Archy came down ? About fifteen
minutes. Where were you standing when Archy
came down ? At the same place, sir, Off the
pavement/ Yes. sir; about the middle of the
arch; they came down with him, and just as they
neared the arch and started down on the pave
ment to the gHard house— Did you see any
thing happen in the market house before he got
out side ? I did not some one rushed at him,
and some said " kill the damned rascal," and I
saw Mr. Monk commence to cut at him with a
knife. You heard what exclamation ? *' Kill
the damned rascal," You did not see who made
that rush/ No, sir. You saw nobody in the
crowd but Monk with a knife ? Not right close
to liim. Did you see anybody further off with a
knifj ? No, sir; he made at him to cut him,"and
Jim Nixon ran at him and pulled him off and told
him to go away ; and by that time they were
scuffling and got down on the pavement.
Who got down ? The sheriff and Mr. We-
mys8 had hold of him; they all went down :
Archy went down, and Mr. Wemyss got down
on tbe top of him like ; just about the time
they got straight Mr. Tolar stepped up and shot
hiin. Did you see Mr. Tolar? Yes, sir.
That was the first time you had seen him since you
saw him in the market house? Yes, sir.
Where did he come from ? 1 don't know, sir.
Were you standing in the same place in the street
in front of the arch ? Yes, sir—I wasn't in front
of the arch exactly,—h«d moved a little further
down. Tolar, you say, stepped forward and
shot him? Yes, sir. How far was Captain
Tolar from ycu when he shot? Not more than
four or five feet. How far was Archy from yon ?
He was about three or four feet. You were
closer to Aichy than to Captain Tolar? I was,
sir. Were you in front of the main arch of the
market house ? No, sir, I moved down a little.
You moved down as the crowd moved down ?
Yes, sir. Where was Archy, on the pavement
or off? On the pavement. Were you on the
pavement or off? Off the pavement. You
were about four feet from him you say ? Not
more than that. Was he near the edge of the
pavement? About tbe middle. You were
near the edge? Yes, sir. Captain Tolar was
to your right or left when he fired ? To my right,
sir. You say he was about fiye feet from you ?
He may have been about that. Was anybody
between you and him ? There was. Who
was it? I don't recollect. Was there any-
body between him and Beebee ? Yes, sir. Can
you tell who they were ? I could1 not. What
sort of a pistol was that Captain Tolar had ? I
could not say. Could you say anything about
the size of it? No, sir, I could not because be
fired right over some one's shoulder—it hid it.
Can you tell whether it was a large pistol or a
small one? It looked like a medium siaed< pistol.
Did you see the pistol / I got a glimpse of it.
Are you certain whese hand it was? Yes, sir.
How was Captain Tolar dressed that day ?. That
I could not say; I think, though, that he was
dressed in a dark gray suit but I would not say
positive. Did he have on an overcoat? No,
sir, I think he had on a shawl. Are you cer-
tain about the shawl ? I am not certain about
the shawl; he had en a shawl or blanket. He
was the man who fired the pistol? Yes, sir.
Did you see the pistol when it went off? Yes*
sir. And the smoke and flash? Yes, sir.
You heard the report ? Yes, sir. How close
was the muzzle of the pistol to, Archy's head ?
It was a right good piece off; it was not right at
his head. Tolar, vou say, was nearly fire
feet from him. I could not say exactly. Was
Tolar standing on the pavement or off? That I
could not say because the people were between me
and Mr. Tolar. Was he standing pretty near
the edge? I think he was, sir. You could
only judge of the distance from seeing the head
and shoulders? Yes, sir. But you are cer-
tain it was his hand that held the pistol ? I am*
sir. And you were looking at it the moment he
fired? Yes, sir. What position was Captain
Tolar in when he fired? I don't know exactly.
Did he fire with his left hand ? No, sir, I don't
think he did; he fired with his right hand. Was
he standing very erect or leaning over the crowd—
did he point it through the crowd or over the
crowd ? Over the crowd. Did you see Sheriff
Eardie at the time he was shot? Yes,
sir. Where was he standing? I think
he was on the right hand side. In front
or behind? At the side of him. Did you
see Wemyss? Yes, sir. Where was be standing ?
He bad hold of him on tbe left side I think, one
was on one side and one on the othpr side anyhow.
They were on different sides ? Yes, sirs Did
you see Archy fall ? Y es, sir. Did you see
what became of Tolar'after he fired ? I don't
know sir. Where did he go after he fired ? I
don't know sir; when he fired he wheeled and run
the pistol under his shawl. Which side? On
his left side I think. You didn't see where he
moved to ? I did not. » Did you go up to the
man who was 'wounded ? I was standing right
there. You did not have to go far? No, sir.
Did you see what became of Tolar afterwards ? I
did not sir. Did you see who was nearest to To-
lar when he fired ? No, sir. Did you see any-
thing of Edward Powers ? I did not see him in
that crowd ; I saw him there before this thing hap-
pened. Did you see Ralph Lutterloh ? Yes,
sir.: Did you see anything of Henry Sykes there
that day ? No, sir. Did you see anything of
Mr. Leggett there that day ? I know one Mr.
Leggett. but I didn't see him anywhere about there
sir. Did you see Sam Hall that day ? I did
sir. Was that before the shot? Yes, sir.
78
PROCEEDINGS OF A MILITARY COMMISSION,
Where was he when yon saw him ? He was
•knockingabout the ^market. Inside or out?
Inside and out, too. Did you see him have any
conversation with any of these prisoners. I did
not, sir.
Cross examination %y the Counsel for the ac-
cused. . '
Phillip Pickett is your name ? Yes, sir. How
long have you lived in Fayetteville ? All my
life sir. You know Dr. McDuffie? I do sir.
You know him very well, don't you ? Yes, sir.
How far were you from that knot of men,—Rollings-
worth, Tolar and the rest of them ? I was not
more than twenty-five feet. Any body between
you and them ? There was not, sir. Who did
you say they were? I saw Mr. Tolar and Mr
Monk, afld I won't say whether the other was Dr.
McDuffie or not. ' Why ain't you certain ? Be-
cause it has been such a long time I disremember.
IIow do you know it was Tolar? I know it; I
can recollect it was Tolar. How can you forget
it was Dr. McDuffie.? I don't know sir; it has
been so long. 1 want to know how you came to
forget Mr. McDuffie and not to forget Tolar ? I
can't say ; I know for certain it was him and Monk
and John Hollingsworth, but the others I forget
who it was. You recollect John Hollingsworth
very well ? Yes, sir. . And Monk very well ?
Yes, sir. And you recollect Tolar very well?
Yes, sir. And Dr. McDuffie you know as well
as any one; and you don't recollect whether it
was he or not? . No, sir. You can't give any
reason why you don't recollect? I give this rea-
son ; it has been so long I forget whether it was
him or not. That same reason would cause you
to forget the others too? No, but I don't forget
the others. How came you to recollect either
and not the other ? Because I can recollect the
rest, and I think fhe other was Dr. McDuffie.
You don't know why you don't recollect him ?
I only give the reason, it Jwas so long. - Were
you standing there with your elbow at the east
•corner of the market house looking west? Yes,
.sir. And you - were' twenty-five feet from
the men? . About that. And you saw
them all and you say one of fhem had a pistol?—
Yes, sir. You don't forget that ? No, sir.
You don't forget that one had his pantaloons
in his boots? No, sir. And you don't for-
get one had blue pantaloons en ? I said a
bluejacket. You don't forget that? No, siT.
But you do forget who the fourth -man was ?-
1 don't exactly forget, it sort of slipped my mem-
rf)ry. Then you walked from the east corner
to the arch 1 Yes, sir. The main arch on
the east 6ide ? Yes, sir, And yon walked in,
or did you not ? I did not, sir. Where did
you go to? On the outside of the pavement,
Just off the pavement. How far were you from
the arch? Not more than six ieet, "anyhow.
Six feet from the pavement? From-the arch.
Weie you off the pavement? Yes, sir. How
wide is the pavement? It 'is not more ttian
•about five feet. And you were about one foot
from the pavement? I might have been about
•that, I would not say for certain. And you
.stood there when Miss Massey came down ?
Yes, sir. And she went to the carriage with
Mr. Bond ? Yes,-sir. Who did you say went
to the carriage then? Mr. Manltsby. Didn't
Tom Powers go to the carriage ? I did not
notice. How far from the carriage were you ?
Not very far, sir. Was it a mile? Notmore
than about twenty feet. Were you looking at
the carriage? I was, sir. You say you "did
mot sec Tom Powers go there? I did
not notiee him. *You saw Maultsby go?
I did, sir. -And he said he would ask
whether they found Beebee guilty or not?
Yes, sir. And he went, and you heard the
conversation with Bond; heard him ask him
whether he was guilty or not, and Bond said he
was, and then he came back ? Yes, sir. And
you were standing, looking where you were ; did
you move away? Nc, sir. You were six feet
from the arch ? About that, sir. Was the
man named Jones standing by the arch ? No,
sir ; he was standing down by the corner. Which
corner ? The south east corner. Did Maults-
by go down to the south east corner? Yes, sir.
Is Jones a white man/ Yes, sir. {gple went to
the south east corner and Jones asked him wlieth-
er they found him guilty ? Yes, sir. Andihe
said they had/ Yes,sir. And he walked up
on the pavement to the north east corner ? On
the outside of the pavement ? Where was Jones
standing ? On the outside of the pavement.
Maultsby went down after talking to Bond, to the
south east corner, off the pavement, and then he
walked along the street up towards the north east
corner? ' Yes, sir. And you heard Jones say
what? "Mention that other1 thing."' And
what did John Maultsby say? lie said he
would. You did not hear anything more said ;
what that other thing was? No, sir- Maults-
by went up to the north east corner ? Yes, sir.
You saw him pass the big arch ? Yes, sir.
What became of him ? I don't know. How
long was that before Archy came down ? About
fifteen minutes, sir. How long was it between
the time Miss Massey came down and Archy came
down? About fifteen minutes. No time had
passed between the time Miss Massey had come
down and Jones and Maultsby had this talk?
That was about the same time. Did you see
Archy as he was on the stairs coming down?
Y es, sir. And you saw him when he come ou
th e floor inside of the market house ? Yes, sir.
Did anybody go up to him ? Not that I know
of, sir. You saw him? I did, sir. If any-
body went up to him you could have seen them?
I thi^k I could, but I didii't see any one. You
were standing there with your eyes fixed on Archy?
Yes, sir. And you saw nobody do anything to
Archy, until they turned the corner. I did not.,
sir. Then you heard some body say, "kill
him?" Yes, sir. And Monk* ran up with a
knife? Yes, sir. Did you see Tom. Powers
then? I did not, sir. Did yon see Tom.
Powers after they passed the arch and came out ?
No, sir. You were still standing in front of
the arch? I was, sir. Did you see Captain
Tolar until he came up and shot him ? Only
when I saw him talking. Had yon seen him.
from the time you saw him talking until lie came
up and shot him ? I saw him walking through
the market house. Did you see him passing
out back of yon in the street while you were
standing there?"' I did not notice him. At
the time, Massey was sitting in the carriage ? I
did not notice him. Did yon notice Tom.
Powers? I did not sir. You were standing
atjthe place all the while ? I was, sir.^'lf they
had passed through the arch to the carriage by
you, how near would they pass ? They could
have passed within ten feet of me, sir. Was
your face in that direction or the other direction ?
My face was directly west, sir. No body could
have gone out of the arch without passing under
your eye? No, sir. Yon did not sec Tolar
or Powers go out? I don't recollect. You
did not see Powers go the carriage? No sir.
Yon saw Powers walking about under the market
house? No sir; I 6aw Ed. Powers. Did you
see Tom. Powers? He was sitting down on
Becky Ben's seat. Was that the only place you
CONVENED A? 'RALEIGH, NORTH-CAROLINA'..
saw him that day? Yes six*, to my recollection.
After Arcliy.came down did you move? I
moved down, yes sir; I moved down between
the cornier and the arch. Between the corner
and the little arch, or the large arch there
is a little arch thei-c, is there not? There is a
bench runs across that. Were you opposite
that. I was not exactly opposite it, I was about
the pillar. Which pillar ? The brick pilliai\
The pillar between the little arch and the big
arch/ Yes, sir. You stood how near
the pavement/ I was just off of it.
Where did Tolar come from ? I don't
know, sir, when I saw him he was -com-
iiig up in the crowd, sir. You say you was
standing opposite the pillar, between the big
arch and the little arch, and just, off the pave-
ment ? Yes,, sir. And you were nearer Bee-
bee than you were to Tolar? I was, six-. Tolar
w as some five feet from you ? I think he was
probably some four feet; about that, sir. And
Tolai-,wiien he shot,did not make the crowd give
way or shoot over? I did not notice, the crowd
was moving continually. But when he held up
the pistol, he held it over the crowd ? He did,
sir. Did you say how near the pistol came to
Beebee ? I did not, sir. Beebee had just
fallen before that? Yes, sir. And gotten up ?
Yes, sir. And you say Sheriff Hax-die was on
the right hand? No, six-, I didn't say; I said I
thought he was. Which side was Wemyss on ?
I don't know, sir; one was on one Fide and the
other on the other side. Were they close up
to the prisoner? Yes, sir. Both of thexn
had hold of him? Yes, sir. Had hold of
him hy the arm? I think as well as I can re-
collect, Mr. Wemyss had a little string hold of
his thumh. You think Mr. Wemyss had hold
of him hy his thumb ? Yes, six-. Where did
Sheriff Hardie have hold of him ? I don't know
whether Mr. Hardie had hold of him with a string
or not. Did you see Faircloth / I did, sir.
Whex-e was he ? I don't i-ecollect whether he
was behind or before. Was Ilornrinde there ?
I did not notice him, sir. You say you were
just off of the pavement ? I did, six-. The
pavement was about five feet broad, and you
were about five feet fx-om Tolar ? Along about
that, sir. And Tolar was to your right ?, He
was. And you were opposite the pilliar, be-
tween the little and large arch? Yes, six-.
Was Tolar near the edge of the pavement ? 1
could not say, because of the ei-owd. • You can't
say whether lie was off of the pavement/ No,
six-. You don't know whether he was off or
on? No,.sir. Supposing he had been off of
the pavexneut, hit would have been behind you
would he not? No, six-. W,as there room
for a man to stand between you and the jxave-
ment? He was fui-ther down than I was. You
were standing looking right at the market
house? Yes, sir. And Beebee was between
you axxd the max-ket house ? Yes, sii-. Then
Beebee was opposite- the pillar between the
big arch and the little arch ?, • Yes, sir. Then
Tolar was opposite the big. arch wasn't
he? In that direction. What did Tolar
say when he came up? I did not hi?ar
hiox say anything. Did you bear anybody say
any thing at that time? I heard nobody, only
Mr. Hardie and Wemyss' telling the people to
stand back. You say Tolar fired with his right
hand ? 1 think he did. He ran the pistol tin-
der his left side alter he shot? Yes., sir.. He
had the pistol in his right hand then ? Yes, sir.
I understand you to say you saw Bowers on the
bench? That is the only time I remember see-
ing him sir.
Re-direct examination) by the Gounsel for the
prosecution:-
Did you hear Captain Tolar say anything after
he fired ? I did not, sir Did yoti hear any
one say anything ? I heard some one say he
gloried in his spunk. Was that all*you
heard? That is all I heard. You remember
hearing some one say he gloried in his spunk?
Yes, sir- Whose spunk? They didn't calk
any names. Did they say " his spunk ? " They
said they gloried in the man's spunk that fired the
pistol That was all the remark he made?
Yes, sir. You did not hear anything about its
being a good shot?- Yes, sir; I think someone
said it was a very good shot. Who was that ?
I do not know fir.
On motion the Commission adjourned, to meet
on Tuesday the 6tb inst., at 11 A. M.
RalBigh, N. C., August 6th, 1867, 11 A. M.
The Commission met pursuant to adjournment.
Presbnt. ,
Col. J. V. Bomford. 8th Infantry.
Brevet Lieut. Col. Thomas P.JJohnson, Capt. A.-
Q. M. U. 8. V.
2nd Lieut. C. E. Hargous,'40th Infantry.
2nd Lieut. Louis E, Granger 4th Infantry.
1st Lieut. R. Avery. 44th Infantry, Judge Ad-
vocate.
The Counsel for the prosecution ; all the accus-
ed, and their Counsel.-
Absent.
Capt. P. H. Remington, 8th Infantry.
The Judge Advocate read the following tele-
gram :■—
" Headquarters, 2nd Military District,
Charleston, S. C., August 5, 1867,.
It is expected that your Commission will sit
daily, and that its session will commence as early,,
and continue as late as may be requisite for the-
promptest practicable dispatch of all business i»
readiness. Make daily imports of length of Session-
and causes of adjournment.
By command of General Sickles
J. W. Clous.
Capt. A. A. A. G--"
The Judge Advocate stated that the absence of
Capt. Remington, was occasioned by sickness,,
whereupon, on motion, the Commission adjourned-
to meet on Wednesday, the 7th inst., at 11 o'clock
A. M.
Raleigh, N. C. Aug. 7,1867,11 A. M.
The Commission met pursuant to adjournment.
Pi-4sent.—All the members of the Commission,,
the Judge Advocate, the Counsel for the prosecu-
tion, all the accused and tlieir Counsel.
The reading of the testimony taken on Monday
the 5th instant was waived, there being no ob-
jeetion tlxei-eto.
The proceedings of Monday and Tuesday, the.
5th and 6tix insts., wex-e then read and approved.
Thomas Jenkins, a witness lor the prosecution:-
having been first duly sworn, testified as follows,
Examined by the Counsel for the prosecution .
What is your name ? - , Thomas Jenkins.
Where do you live? . Fay.etteyille What is
your business there ?• Carpenter, sir. How .
long have been living there ?- AH my life. Did-
you know Archy Beebee ? ■ I-did,, sir. What,
came did he go by beside Beebee? Warden,,
sir. You remember the day lie was. killed.
Not exactly, sir, it was sometime in February, sir.. •
Do you remember what day of the week it was?
Not exactly. Were you at the market house-
that day? Yes', sir. What time o'f day did
80
PROCEEDINGS OF A MILITARY COMMISSION,
you go to the market house? Directly after
breakfast, betwixt eight and nine o'clock. Were
you there all day? Yes, sir. Did you see
Archy when he was brought out of the guard
house ? Yes, sir. Where were you standing ?
I was standing .near the corner? The south
corner ? The south corner. On the south
face ? On the east face, sir, between the south
and east, so that I could look up and down the
street both ways. Who came up from the guard
house with Archy ? Mr, Faircloth and Mr.
Wemyss. Anybody else ? Well, there was a
good many others along with him but they were
about all that had hold of him. Did you see
him go up stairs? Yes, sir. Did you go up
stairs ? No, sir. Did you try? No, sir.
How long was Archy up stairs ? As nigh as I
can recollect I don't think he was up there more
than an hour. Was there any crowd there?
Yes, sir, agood many people there. How many
do you suppose? Not less than between one
hundred and fifty and two hundred. Did the
crowd grow larger while Archy was up stairs or
less ? No, sir, it remained about the same.
Was any crowd in the market house? There
was some in the market house. Any outside?
Yes, sir. Which end of the market house was
the crowd/ The crowd appeared to be at the
east end, sir. Who did you notice in that crowd
that you knew while Archy was up staiis? I
seed Mr. Phillips and Mr. Maultsby. Mention
their first names? Sain. Phillips and John
Maultsby, and Samuel Hall and Eddie Powers and
Mr. Bond. Did you see him there while Archy
was stairs? Yes,sir. He did not go up staiis
with Archy ? I don't know whether he went up or
not—I saw him while he was up stairs.
Did you see any of these prisoners ? Yes,
sir, I seed Mr. Toiar standing right at a
bench inside of the market house. Which
bench ? A bench where Becky Ben
sells. Did you see anything of Tom Powers or
Mink ? I don't know Tom Powers. Did you
see Monk ? Yes, sir. Did you see anything
of Henry Sykes ? I don't think I did. What
was Mr. Tolar doing ? He was standing leaning
-against the bench, with the shawl on him, sir.
Where were those men, you speak of seeing?
They were round about the market house, out and
in, talking to one another. Who were they
talking to? First to one and then to another;
sometime they would be talking to Mr. Tolar and
then again Monk would be t alking to some of them
and Mr. Maultsby would be talking to some of
them; and Mr, Hall would be doing the same.
Did you see any weapons in anybody's possession
while Archy was up stairs ? No, sir. Who
was the first person that came down stairs ? The
first person that come down, that I seed was the
lady and her mother. Any ono with them?
Mr Bond was with them; he come down and
helped them in the carriage, then took hold of the
horse, and held him off and the man drove them
off. Did any one else speak to the ladies ?
Mr. Bob Mitchell, and Mr. Phil. Taylor? Any-
one else? I don't exactly recollect whether
there was or not; I don't recollect as I saw any
one else. Did any one else go there ? A good
many were round about there; but I don't recol-
lect exactly, to my rmembrance who all did go
to the carriage. When Archy came down stairs
what happened—who was with him? Mr. We-
mysa ana Mr. Faircloth was at the time he came
down. Which side was Wemyss on? On his
right hand side. Mr. Faircloth was on the other
side ? Yes, sir. Where was sheriff Hardie ?
If I recollect the sheriff was right before him.
What happened then? As he came out of
where he was coming down the steps, I seed
Monk make one or two wipes at, him with his
knife. That was before he got down the steps ?
Yes, sir. Did Monk say anything? He was
cursing and going on mightily at that time.
What was he saying ? He was saying lie wanted
to cut the damned son of a bitch to pieces, and
then at that time some persons pushed him off-—
and one of them pushed him out of the way,
and they went on out to the big arch, and they
turned down towards the guardhouse. You
say Monk made at him while he was on the steps.
Yes, sir. Did nothing else happen before he
got into the big arch ? Nothing else, except
some one pushed him one side. They got out
of the market house before any one else assault-
edhim? Yes, sir, and after they got through
the arch to turn down towards the guard house,
it appeared like some persons pushed against
him, or said something to him, but I did not
bear what they said, and it seemed like they were
crowded up so, it appeared like some of them
had fell down someway or other. Were you
facing them? Yes, sir, light in front of Bee-
bee, and then just as he raised up, Mr. Phillips
was standing there against the market, between
the market and the walk near .the arch, and Mr.
Tolar stepped up, and just as he raised up he shot
him, right in the back part of his head.
Do you know Mr. Tolar ? . Yes. sir; I know him
when I see him. Did you know him then when
you saw him? Yes, sir. What sort of a pis-
tol did he use ? I do not know exactly; it was
a sort of a reddish pistol. What size was it?
I don't know, sir; it appeared like it was seven or
eight inches long, or something like that. Did
you see the flash of the pistol? Yes, sir. The
smoke? Yes, sir. Was it in Tolar's hand
when you saw the flash and smoke ? Yes, sir.
Which hand? His right hand. How was
Tolar dressed ? He had on a pair of gray panta-
loons, and a shawl over him, sir; I don't know
what sort of a coat he had on. Do you know
what sort of a hat he had on ? I don't recollect
exactly what sort of a hat. How close was he
to Beebee when he fired ? He was between four
and five feet, sir. Was anybody between Tolar
and Beebee when he fired ? Mr. Phillips was to
the right-hand of him. Did you see any of these
other men that you spoke of, as talking,
about the market house at that time? I
saw them at the left hand. Who did you
see? I saw John Maultsby. Anybody else?
Mr. Nixon. Jim Nixon? Yes, sir. Anyone
else ? No one else, but Monk at that time sir.
Do you mean that Jim Nixon was at the left hand
of Tolar, when he fired? Yes, sir. How
close to him ? He was between five and six
feet. Nobody between him and Tolar ? Yes
sir, there was some four or five right in a bunch
together. How close was Maultsby to Tolar ?
Maultsby appeared to be about four feet from
him. Anybody between him and Tolar?
Well, not particularly, the crowd was standing
near him. Can you say who was the nearest
man to Mr. Tolar when he fired the pistol ? The
nearest man when he fired the pistol was Mr.
Sam. Phillips. He was on the right hand ?
Yes, sir. Who was the nearest man 011 the
left'! John Maultsby, I think. Were there
any colored men near liim ? I seed Simmons
stand around there—Bob. Simmons. W as he
pretty close to him? Yes, sir, he was in ten
feet of him. Did you see any one else nearer
him ? There were several colored men. Chess.
Gilraore was there. How close was he to him.
About five feet sir. Any one else ? That is
CONVENED AT KALE I Oil, NORTH CAROLINA. '81
all I recollect, particularly, there were others
hut I don't recollect who they were. There
were other people there? Yes, sir. White
inen, or colored men ? Both, sir. The crowd
was pressing close together was it? Yes, sir.
Did you see Arch}* Beebee fall, after the pistol
waslired? Yes, sir. Did you see what he-
came of Tolar after he fired? Yes, sir, he
turned, and it appeared as if he either went un-
■tier the arch, or to the north corner of the mar-
ket house, and then the crowd got between us,
and I lost sight of him. Did you see what lie
did with the pistol ? No, sir, I did not, his
hard dropped down and I did not see what be-
came of it.
Cross examination by the Counsel for the accus-
ed:
What did you say the size of the crowd-was that
day Tom? It appeared to be, as near as I can
• guess, between one hundred and fifty and two
hundred people. Both black and white? Yes,
sir. Were, there more blacks, or whites? I
■think thex*e was more white people than colored.
About what proportion of the crowd was blacks :
one third, or "one quarter ? I recken there were
nearly fifty colored men. While Beebee was up
stairs in the market house, did you notice anything
unusual -about the crowd/ No, sir, nothing
more than common; more than people just talking
to one another. When you say you saw Captain
Tolar, and Sam.-Ilall, and Ed. Powers, and others,
talking under the market house, who were they
talking to; or how were they talking? They
were just talking like common,—talking no secret
talk that I know of. Not whispering ? No,
sir; not in particular. Did you see any of them
talking to other people? Yes, sir, I saw tbern
talk to other people besides one another. So
they were walking about, and talking, general-
)y like all other persons? Yes, sir, Noth-
ing unusual about that talking? Nothing
thatY heard, sir. You say when Beebee was
brought down, that Wemyss was on his right
hand? Yes, sir. And when he got down
to the door, Haircloth, who was guarding the
door, took hold of liim on the left? Yes, sir.
Did I understand you to say that Monk cut
at him with his knife, while he was upon the
stair steps ? Yes, sir, before he 'got outside,
sir. How many steps was Beebee off from the
floor of the market when-you first saw Monk
cut at liim with his knife? Weil, he was some
two steps, sir. When Monk cut at "him did he
get up on the steps? He was standing on the
ground, and made the wipe at lam as he was
coming down. Was Monk to one side of the
steps, or was he in front of the steps? He was
one side. Whichside? The left side of Beebee
as be come down stairs, inside of Becky Ben's
stall. You swear that Monk cut at him there?
Yes, sir. Are you certain that was Monk ? Yes,
sir. You know him well? Yes, sir. And
it was Monk and nobody else? Yes, siree. Did
any one else cut at him after he got outside of the ,
arch ? Aobodv that I seed. Did not you see j
everything that "took place ? As far as.I seed I i
never saw any one else cut at him but Monk. How
xnany times did you see Monk cut at him? J
think I seed him cut at him twice. -Was Bebee
on the steps when he cut at him both times? The
first time he was; he bad just got down on the
lowest step, and he cut at him again, and then
some one pushed him off. Did you see nobody
cut at Bebee at all after he left the steps ? 'No,
sir. Then they carried Bebee out of the main east-
ern arch of the market house, and which way did
they turn ? Right down towards the guard house.
Now, Tom, where were you standing at that time?
I was standing right at the corner next to Mr.
Draughon's store. Were you on the pavement
or off? Right on the top of the pavement.
Were you nearer to the market house or nearer
the edge of the pavement? I was nearer tiro
market house—near the-center of the pavement.
How far down the pavement had Beebee got be-
fore he fell? About- three feet from tile cor-
ner, sir. JIow. far was he off from you then?
He was about four or five feet from rac, sir.
M ere you immediately in front of him, or was lie
to your right ? -I was near even with the cor-
ner, sort of a little to one side. In front of
him? Not exactly on the-walk-before him.
A little to one side ? Yes, sir. When he f'el \
was there anybody between you and. him ? Mr.
JVtmyssAvas between me and him, and Mr. Fair
cloth was on the other side. Who helped him
up? Air. Wemyss had hold of him, sir, and i»
he went down on the right hand side Mr. We-
myss held qu to liim, and eased him clown. Did
you see anything of the Sheriff? Yes, sir,
Sheriff Harciie was right before him, sir, sort of to
the left hand. Certain of that, Tom ? Yes, sir.
That Ilardie was to Bee lice's front and left'?
-Yes, sir, when he fell. ilardie was off towards
the edge of the pavement ? Yes, sir. -Did
Harciie have hold of him ? No, sir, I don'!,
think lie-did, no person had hold of liim but Mr.
Haircloth and Mr. Wemyss. You arc certain
.Harciie did not have hold of him ? No, sir, i
don't think he had hold of.him. How far-off'
from Beebee was Ilardie ? I reckon he was he-
tween tween two and three feet, sir. So Ilardie
was two or three'feet to-Beebees front and left?
Yes, sir. Near the edge of the pavement?
Yes, sir. -And did not have hold of him at all ?
No, sir. What did Beebee have around his
neck that day, -anything-? I don't recollect
what he had around the neck. Did he have
anything around his neck ? I do not know, sir,
whether ho had or not. Just now you said
when he rose the nearest person you saw to Bee-
bee was Sam Phillips? Yes, sir.
The Counsel for the prosecution said lie did not
think the witness said that before—that Sam
Phillips was the nearest person-to Beebee; lm
does not understand the question.
The Counsel for the accused; I will ask the
question again.
Cross-examination resumed:—
Which way were you looking at the time Bee-
bee raised up ? Towards Air. Fishblatc's store.
Now Who was the nearest man, except Air. Wem-
yss, and Haircloth, and Ilardie, who was the
nearest man to Beebee at the time he was raised
up? I think it was John.AIaultsby, sir. Look-
ing as you were, north, which side of Beebee was
lie on? He was on the left hand side of him,
sir. lie was to the left of Beebee? Yes, sir.
Do you mean your left or Beebee's.left? Bee-
bee's left. Was he on the pavement or off ?
He was on the out edge of the.pavement. Was
he on the pavement? Yes, sir, right on the
edge of it. Who, was the next nearest man
that you saw? After he was killed? No,
what man .was next nearest to Beebee,—»you say
Alaultsby was nearest, at the time he -was shot,
what man was next nearest ? J don't recollect
more than Haircloth and Wemyss. I am not
talking about tliem ? The next nearest one
was Mr. Phillips. -Sam Phillips ? Yes, sir.
How tar off' from Beebee was. Sam Phillips? He
appeared to he about three feet, as nigh as I can
recollect. Was he to Beebee's right, or was he
to Beebee's left-? He was to Beebee's right.
Beebee, looking south, Phillips would have been
todiis right and rear ? Yes, sir, nextdo the
wall. How,far was Phillips from the .wall
82
PROCEEDINGS OP A MILITARY COMMISSION,
Not more than six or eight inches, sir. Phil-
lips was on the pavement? Yes, sir. You
are not mistaken about that? No, sir, l am
certain about it, tor I was looking right at him.
And you can't be mistaken? No, sir. What
did Phillips have in his hand ? I never seen
him have anything in his hand, sir. Did he
have anything or did he not? I never seen
him have anything in the world, in his
hand. Did he have anything in his
hand that day? Not that I seed, sir. Neith-
er before the shooting, at the time of the shooting
nor after the shooting ? No, sir: not that I
know of. I ask you the question Tom, if at that
time when Beebee was shot, Sam Phillips did not
have a pistol in his hand ? No, sir ; I never se<ed
him have nary one. I ask you if directly after
he was shot, you did not see Sam Phillips have a
pistol in his band ? I never seed him have a pis-
tol all day. Where did you place Capt. Tolar,
was he on the pavement or off? He was right
on the pavement, sir. Was he nearer to the
market house or nearer the outer edge of the pave-
ment ? Between the market house and the out-
er edge of the pavement. W as he on a straight
line, back of Beebee ? Yes, sir. So that if a
line had been drawn from Beebee's feet, back par-
rallel with the east front of the market house, that
would have struck right between Tolar'sfeet?
Yes, sir. You looked at it well? Yes, sir,
•You can't be mistaken? No, sir. Where did
Tolar get that pistol from ?. I do not know, sir.
Did you see him draw it ? When I seed it, it
was in his hands. How did he have it when you
saw it ;,was it level ? When I first saw it, it was
right level, pointed right to Beebee. Are you
sure that was a pistol Tolar had? Yes, sir.
•It was certainly a pistol? Yes, sir. What
did you say was the length of it, Tom ? As nigh
as I can guess at it, it appeared between seven and
eight inches. You saw it? Yes, sir. And
you saw it well ? Yes, sir.- Do you not know
that that pistol was twelve inches long ? I don't
know that it was, sir. You are a carpenter?—
Yes, sir. You are in the habit of judging of
lengths and distances by your eye ? Yes, sir.
I ask you if you don't know that that pistol was
twelve or fifteen inches long? No, sir. Was
it or was it not that long? Well, as nigh as I
can recollect, to the best of my judgement, I
think it was between seven and eight inches,'as
nigh as I can come to it by guess. Won't you
say it was twelve or fifteen inches long? It
didn't appear to me like it was that long. Was
it a single barrelled pistol? It was a single
barrel; what I seed him have. Was it what
they call a revolver? Just a single-barrelled
pistol as far as I seed it, sir. Could you tell
whether it was a single barrelled pistol or a re-
peater? I could not tell, sir, because it was
done so quick I did not examine it. Who were
nearest the prisoner ; were they white men or
black men—that line of men that was pressing on ?
They were white and black altogether. Can
you tell no other white men who were near, except
John Maultsby, Sam. Phillips and Captain Tolar ?
Not that I can remember—there was others but I
can't remember who they were. You say then
John Maultsby was the nearest to Tolar, on his
left hand side ? Yes, sir. Are you certain of
that? Yes, sir. How lar was he off from
Tolar, on the left hand side ? It appeared as if
he was between two and very nigh three feet, not
over three feet at the outside. And nobody he-
tween him and Tolar? No, sir, not at time.
What colored men did you say you saw about
there ? I seed Bob. Simmons there. Any
ether colored man? Chess Gilmore. Any
other? I did not, particularly—I can't recollect
who they were. How many persons did you
say were between Tolar and Beebee when he
fired ? There was no persons between Tolar and
Beebee at the time he fired. Nobody at ell ?
No, sir. A clear, open space? Yes,
sir. How far off from Beebee's head
was the pistol at the time he fired ?
Well, I reckon it was between two and three feet,
sir. As far as that ? I reckon it was about
as far as that from his head. And there was
nobody between them? .No, sir. Did you
see Tolar when he came there ? Yes, sir. How-
did he come ? He just come right around through
the crowd, with his shawl on him. Didn't you
hear Tolar, when he came into the crowd, say,
"make way, gentlemen"? No, sir; I never
heard him say so. Didn't you see him push the
crowd right and left ? No, sir; I never seed it.
Tom, I ask you the question, if there were not afc
lfeast two men between Tolar and Beebee,. and those
men leaned, one to the right hand and the other
to the left hand to let him get a fair shot ? Nor.
sir. As soon as Tolar shot, you say he just
brought the pistol down to his right side ? Yes,,
sir. Didn't he bring it to his left side ? No,
sir; he had it in his right hand all the time.
Then he didn't put the pistol back under the shawl?
No, sir. Did you see the pistol when he turned
around? No, sir. How was Tolar's shawl
fastened around him ; was it pinned ? I don't
know whether it was fastened or not. Did it
fall off? No, sir. Did any portion of it faff
off? Not that I seed, sir. When he raised
his arm to fire the pistol, didn't the corner of the
shawl, which would have laid across his right arm
—didn't that fall off? If it did I. didn't see it.-
Do you know whether it did or not ? It was on
him all the time. * When Tolar turned around to
leave the crowd, did he turn to his right or left ?'
He turned right around to his left. Turned to his
left ? Yes, sir. That brought his face down
towards Camelton bridge? Towards Liberty'
Point. You are sure he turned around that
way? Yes, sir. Don't you recollect when he
turned around, that you saw him gather up his
shawl and throw it back on him? No, sir; he
did not; he just turned right around and walked
right off. And made no motion frith his shawl
at all? No, sir. Didn't you see him throw
his shawl in some face, as he turned around?
When he turned around, the shawl was on him
it might have been pinned, and it might not, but
I. am certain it did not fall off while I saw it.
Now, see if you can't remember, when Tolar turned
round, that he threw his shawl into the man's face
who was standing next to him on his left ? No,
sir. Is that so, or not ? I can't remember
that falling, off at all. How do you say about
it ?—yes, or no—did he do it, or did he not—did
he throw the shawl in the man's face, or did he
not? Hsdidnot, sir. Did you see anything of John
Armstrong there that day ? No, sir; I didn't see
him there that day at all; he might have been there.-
Do you know him ? Yes, sir: I know him well; I
have known him ever since the war—not before.
Now, Tom, do you swear that John Armstrong is
not the man that was standing close by Tolar's left,
instead of John Maultsby ? I am certain that he
was not the man, sir. Do you swear that when To-
lar turned around he did not throw his shawl into
John. Armstrong's face, immediately on his left ?
Yes, sir. You swear to that? Yes, sir. Do-
you swear John Armstrong was not close by To--
lar ? If he,was I did not know him. If I seed-
him that day I did not know him; I was not
much acquainted with him, no how—I didn't
know much about him. Didn't .you tell me
CONVENED AT RALEIGH, NORTH CAROLINA.
83
you had known him ever since the close of the
war? I have seen him, hut I never was ac-
quainted with him much. Tou knew him
when you saw him ? I knew him when I saw
him, but I didn't know his name. Don't you
know his name now ? I know what people
call him. That man who is called John Arm-
strong—did you see Capt. Tolar throw his shawl
into his face that day? No, sir, I did not.
Didn't he do it ? No, si;;, he did not. Are
you certain of that? I am certain he did not
•do it. Didn't you see him throw one end of
it in Armstrong's face ? No, sir. He didn't
do that ? No, sir. What was the color of
this shawl? It was a kind of grey looking
shawl? You took notice of it enough to tell
the color? Yes, sir. You say that Tolar
turned round and went towards the market house?
Yes, sir. Which way did he go after he passed
through the market house? I dont't know,
sir, I lost sight of him after that. The crowd
got so thick I lost sight of him. I was looking
at Beebee lying there at that time. Did Tolar
stop at all after he turned off ? I never seed
him stop at all. Did you see whether he
stopped at all ? No, sir, he didn't stop at all.
If he stopped,he stopped on the other side of the
market house. Didn't you see him stop near
the pillar of the arch? No, sir, he never
stopped half a minute. Did he stop there at
all? No, sir, he never stopped there at all.
You are certain of that? Yes, sir.
Questioned by the Commission:
When you saw Tolar, and the others that you
mentioned, talking under the market house, and
before Beebee came down stairs, could you hear
them talking ? No, sir, I never heard what
they said. Could you hear the sound of their
voices? No, six*.
Edward Brown, a witness for the prosecution,
having been first duly sworn, testified as follows:
Examined by the Counsel for the prosecution.
What is your name ? Edward Brown. Has
<my one talked to you about your testimo-
ny since you were at my office ? No, sir.
None at all? Some of them asked me what I
come here for and I told them I was subpoenaed
here as a witness. Who asked you that?
Some ©f the witnesses. Who were they?
Some men that came last week, Mr. James Mc-
Neill for one. Who else? Mr. Nixon. What
did Mr. Nixon ask you ? He asked me what
brought me here. What else did he ask you ?
He asked me how his brother was coming on.
Is that all ? That was about all. I don't ask
you if it was about all, I asked you if it was all ?
Thatisallhe asked me. How long wei-e you
with Mr. Nixon? It was at dinner; we sat
down in the back part of Mr. Parker's Hotel
after dinner. How long were you sitting there ?
Some fifteen or twenty minutes. Did you talk
about this trial? No, sir. It was not men-
tioned? No, sir. .
The Counsel for the pi-osecution said he would
tender the witness to the Counsel for the accused,
preferring not to examine him.
The Counsel lor the accused declined to ex-
amine him.
Chels Gilmore, a witness for the prosecu-
tion, having been duly sworn,testified as follows:
Examined by the Counsel for the prosecution.
What is your name? Chels Gilmore.
Where do you live ? Fayetteville. What is
your business there ? Boating, pretty much.
When did you reach Raleigh ? This morning,
sir. Did you knowArcby Beebee? Yes sir;
me and him worked together. What names
did he go by ? Generally went by Archy War-
den—Mr. Warden used to own him. Do you
remember what time he was killed? I don't
recollect what day of the month, but I recollect
he was killed on Mon day ? What time of the
year was it ? I ain't got no recollection of that,
sir. Since Christmas? Yes, sir. Where
was he killed ? At the market house. What
town/ Fayetteville. Were you there? Yes,
sir. Were you there when he was brought out
of the guard house ? When I got there he was
up stairs. How long were you there before
Archy came down stairs ? 1 reckon an hour.
Where were you standing ? On the south side
of the market house, as you go to the guard
house, standing back near a little tree, near the
corner, twixt the corner and the wall. Were
you on the pavement? Yes, sir. Which
way were you facing? Towards the market
house. On the south face near the -corner,
facing towards the market house? Yes,
sir. Who was standing there with you ?
There was this Jim Douglass pretty close by me..
Did you see any one else that you knew? I
saw more, but I can't recollect them all. Did
you see Tom Jenkins? Yes, sir; and Calvin
Johnson was there, and this McNeill fellow was
there. Was there any crowd at the market
house ? There was about a hundred men there
that day. Where were they standing ; in front
of the market house? Yes, sir. Outside too?
Some were outside. Which end of the market
house ? The south end. Which street does the
south end front on ? I was standing on the south
corner of the market house. You eay this crowd
was at the south end ? Yes, sir. "What street
runs into the south end of the market house ? It
is called Mellit street. Which street runs down
towards Liberty Point ? That is Front street.
That is the side they were standing on ? Yes, sir.
Was this crowd around the same end of the mark-
et house that they came out of? Yes, sir. You
think it was the south end ? Yes, sir. Was
it the end towards the river. Yes, sir. Were
you standing where you could see inside of the
market house ? Yes, sir. In looking in,
which arch did you look through ? One of the
little arches. Was it the little arch right by the
steps, that you looked through ? Yes, sir. Who
did you see in that crowd that you knew that day.?
Mr. Maultsby was there, and Mr. Phillips. What
Maultsby? John. What Phillips? Sam.
Who else? I saw Mr. Tolar there; I saw Sam
Hall. Who else. I saw Mr. Ralph Lutterloh
and I saw Mr. Svkes there. Did you see Mr.
Tom Powers there? .Yes, sir; I saw him there.
Did you see anything of Monk ? Yes, sir, I
saw Monk; I saw Mr. Nixon—Mr. Nixon knocked
Monk off. I am talking now about while Archy
was up stairs—I understand you to say you saw
Sam Hall, Ralph Lutterloh and Mr. Sykes, Tolar
and Tom Powers? Yes, sir. Did you see
anything of Monk ? Yes, sir; he was there.
Did you see Maultsby there ? I saw him there.
Where were these men standing when you saw
them ? They were all standing under the mark-
et house; all collected together. I mean all
those men that you named ? Some were under
the market house and some on the pavement.
Were they standing together? They were pret-
ty thick. Were those men all together or scat-
tered through the crowd ? ' Scattered through
the crowd. What were they doing? Stand-
ing up and talking. Where was Mr. Tolar stand-
ing ? He was standing ia the crowd with them.
What part of the crowd? He was standing
next to the pavement. Do you remember
all-these things you are telling me? Yes, sir.
You remember the positionsof uiese men? Yes,
84' pitockedi-ntis of a mji-itahy commission,
sir. Mr. Tolar was standing next the pave-
ment, you say ? Yes, sir. In the
arch? Yes, sir. In the big arch ? Yes,
sir. That was .while Archy was up stairs?
Yes, sir. You mean he was standing underneath
1 he market house, on the outside? {standing
under the shed part. Be you mean to say he
was standing right in the opening of the arch ?
Yes, sir. Did yousee any weapons in the hands
of anyone?- No, sir. Not while Archy w.ts
up stairs ? No, sir. Did you see Miss Massey
and her mother when they came down stairs?
Yes. sir. Who came with them? Mr. Vaun.
Any one else ?. Not that I know of; I disremem-
her; Mr. Maultsby stood, talking to them after
t hey got into the carriage. Dm Mr. Bond leave
the carriage before Mr. Maultsby went up to them?
No, sir, he did not. Did any one else go to the
c-aniage and. tailc to the ladies? No, sir.
You say you didn't see any one else go to the car-
• iage? No, sir. What became of Bond when
the carriage drove off? He went back up stairs;
J believe sir ; for the prisoner had not come down
yet, I understood you to say that no one else
went, to the carriage to speak to these ladies but
Bond and Maultsby ?. No, sir. D didn't see any
one else go there. Did yousee anybody else
go there?. "Not. positively ;.but I' didn'tmotice
any body. Arc you certain you didn't notice
anybody?.' I am certain. You say Mr. Bond
went up stairs? Y"es,sir, What became of
Maultsby £ He stepped out of the ciowd; I
<-.ould not see him ; he wentbaek under the market,
house. Did he go right straight from the car-
riage, .under the market house ? Yes, sir. Did
you hear any noise from any quarter at that time,
nefore Archy came down ? No, sir. You
didn't hear a word or threat / No, sir. Did
you see any weapons? No, sir. Was the
crowd pretty still and quiet? Very quiet, sir.
Were they walking about much, or standing still ?
Btirring ab'out, talking pretty low to one another.
And you saw Archy, as lie came out of the door
coming down the steps? Yes, sir. Who
was with him?' Mr. Werayss had him.
Who else was with him? I believe Mr. Fair-
cloth—I don't know what man it was behind birr.
You say Mr. Wemyss was on which side?. On
the left side,. On Areby's left side ?. Yes, sir.
You say lie was on his left side? Yes, sir, lie
had hold of his left hand—he had a string on his
thumb, leading him down.. Wemyss had a
string on his hand and was standing on his left
side?. Y.es, sir. Where wa< Faircloth? He
was walking along behind him I think. Did
von see Sheriff Bardie there ? I don't recollect
neeing him at all—ho might have been there.
Did you See any other officers around. No sir,
q don't recollect seeing any others hut them two.
■ »o you say-there were any other officers? Not
that I know ot—I'just tell what I saw. I want
you to tell me whether you saw any more officers ?
li don't recollect. If there had been any there
could you have seen them? I might have
seen them and not noticed them. You don't re-
member noticing the Sheriff?'. No, sir. You
don't remember then, any other officers ? I just,
noticed those that were walking with the prisoner
us he came down the steps, You can't say
whether there were any others or not,?' I can't
say, sir. What became of the prisoner Beebee
when they started to go out to turn the corner—
what became of him before they turned the cor-
ner ? They turned down the steps, and when
they turned the corner to go to the carriage—
Do you mean when they were coming out of the
stall, or when they coming out of the arch? Com-
uig out of the stall. Well, what happened?
Svme one-says "shoot him," and some one say? i
"cut him," and some one says "knock lnm
down," and they made at him, and the officers at
them with their clubs. Who were these peo-
pie ? They were so thick I could not tell. You
can't tell any man who was in that rush ? No,
sir, they was the same as a bunch-of bees. But
there is a difference between bees and men,
because men are bigger, and they are not so much
alike ?. But it is a hard matter to tell, as thick
as they were. You say you can't tell a siDgle
soul who was in'tliat rush ? No, sir, I know
someone said " rally up boys," but I can't tell
who it was. You heard the expressions, "rally-
up boys," " cut Mm," " knock him down,"
"shoot him?" Yes, sir. And j'ou can't tell
who used them ? No, sir. And you don't
know who was in that crowd ? No, sir. Very
well, what happened then ? They run up, and
they were knocking at him, and were cutting at
Mm with the sticks. You mean some one was
knocking at him with the sticks./ Yes, sir, I
could not see him, but,they were cutting at him,
and the officers was knocking them off. Who
hacl the sticks; the men who were after Archy or
the men who were protecting him ? The men
who Avere protecting him ; the prisoner tried to
keep his head under the officer's arms, trying to
keep them l'rom hitting him; the officers were
knocking at them; the officer fell right back on
< he paA-ement, and the prisoner fell on his stomach;
the officer was walking backivard to keep off the
crowd. The officer was walking backward
kfcepiug off the crowd with his stick ? Yes, sir.
What Avere the crowd trying to do ? They must
have been trying to kill Mm. Did you see any-
Aveapons ? No, sir. Did you see any knives ?
No, sir. Did you see any pistol then? Y.es,.
sir, At that, time? Yes, sir. Before
Archy fell, who had the pistol? Mr. Phillips
had the pistol. AVYs lie in- the crowd 1 Yes,
sir. Was he pressing on with the others ? I
saAA" him standing up Avitli his pistol in his hand."
You recognized one ma*n in the crowd then?
Yes, sir. That was Sam Phillips? Yes, sir.
And you recognized nobody else who was in that
crowd? No, sir. How,came you to recognize
him? I Avas standing pretty close to him.
You told me just now you could not tell me, a
single man Avho was in that crowd ? I had not
started that,. yet. Just at this point you., re-
cognized one man in- the croAvd ? Yes sir.
You can't tell me of any body else avIio was in
that croAvd that was pressing on the prisoner at
the time he fell down ? Well, they Avere mix-
ed up, and I could not tell any one of them.
Just take your time about ft ? Well, Mr.
Sykes, and Mr. Lutterloh's son, and Mr. Sam
llall, and a fellov-r by tbe name.of Tom, I can't
call his. name now. You say at the time you.
srav Mr: Phillips you saav these other men;
repeat those names, again.. Sam. Ilall, Mr.
Sykes, and Mr. Lutterloh's son; they were all
three all there; and Monk Julia. You did not-
see Tom PoAvers ? No, sir. You did not see
Mr. Tolar? Yes, sir, I saAV Mr. Tolar and Sam,
Phillips both. Did you say you saw Tom
Powers? No, sir. Do-youknoAVhim? No,
sir. You don't know whether you saw him or
not? No, sir, I am not acquainted with him.
Now did I understand j'ou to say you saw all these
men that you have now spoken of, before Areliy
Beebee fell down tbe first time? Yes, sir.
After they turned tbe arch of. the market house
and Avere going out/ Yes, sir. Where Avere
you standing at that moment ? I was standing
at this little, tree on the pavement. Under the.
row of trees that run along the edge of the pave-
meut ? No, sir, .there was but one little green.
CONVICTED AT RALEICiir, KOUTJI CAROLINA.
85
tree there then, they have set out some since this
happened. How near is that to the exact corner of
the street? It is a little way betwixt the
two arches. (Witness is shown a chart of the
market house, and represents his position as be-
ing on the pavement with his back against the
tree, in front of the big arch.) You were stand-
ing there when Archy fell ? Yes, sir. Did
you stand there imtil Archy. was shot? Yes,
sir. What happened alter Archy fell down?
The officer got 011 his hat. Wait a moment;
what kind of a pistol did Phillips have? ' I
could not see muoh of it, but I saw it in his
hand. Was it a big pistol ? It was. Was
it painted sky blue ?. I think it was; I ain't cer-
tain; I can't tell. You think it was painted sky
blue ? It might have been, a good many is.
That is a common color for pistols ? Yes sir,
it is a common color. You can't tell whether
it was a big one or a little one. No, sir, be-
cause I didn't see it at. all. Can't you see any-
thing around here that is the same color as that
pistol? If a man has anything in his hand
holding it in his hand, you cannot tell how large
and hoV much of it is behind his hand. But
you can tell what color it is ? I can't recollect
whether it was a white barrel, or blue barrel.
You mean a bright shining barrel or a blue one ?
Yes, sir. You can't say how big that pistol
was ? No, sir. Which part did you se-, the
barrel or the stock? The muzzle: How long
was the muzzle that you saw? (Represents
about the length of his linger from the second
joint.) Was that all of the barrel ? lean-
not tell. You just saw the end of the muzzle
of the pistol in hishantl? Yes, sir. How
•was he holding it? (Represents in his light
hand the palm of his hand, down and at his right
side.) ' Was he cocking it? No, sir. What
was he doing? He was looking at the crowd.
Was he rushing on with the crowd? No, sir,
he was standing right still. The rest of these
men were pressing on Wie prisoner? Yes, sir.
Alter Archy got up-you. saw. him put on his hat;
what sort of a hat was that ? I don't know,
sir, what sort of a hat it was, that fell off when
lie tell down. Did he have on a different hat
after he got up than before he fell? No, sir.
What happened after tiie officer put his hat on?
He stood up and said, "gentlemen I want you to
stand back; 1 had orders to carry the prisoner to
the guard house," says he "I am going to carry
him." Who was that officer? Mr. Wemyss,
and in the meantime he was standing up and
talking and shaking his stick at them, and after
he put his hat on, Mr. Tolar pushed Jim Douglass
to one side and lie came in pretty close and he
put his right hand under his shawl, and he walk-
ed up right to the row of men that was standing
next to the prisoner, and he came up behind him
with his shawl on, and drew his hand ri< ht this
way, (witness represents Tolar holding the pis-
tol in his right hand presented toward Bebee,)
and the shawl sort of dragged off of his shoulder,
and he turned and walked right up to the market
house. Did you know Mr. Tolar? Yes, sir.
Was he the man that fired the pistol ? Yes, sir;
Sam. Phillips never fired the pistol. Didn't you
see Sam. Phillips fire the pistol ? No, sir. Do
you know Captain Tolar? YTes, sir. You
know him well ? Yes, sir. How close were
you to him when he fired ? About two steps
from him. Where did he come from when he
come up there and put in his pistol and fired it?
He come along up from the crowd; from the mar-
ket house. Did he come out near you ? Yes,
sir. Did he pass in front of you? Yes, sir..
Further. doivn south than you ? Yes, sir.. Was '
he standing off the pavement or on the pavement ?
About the middle of the pavement, sir. And
you saw. him put his hand on Jim. Douglass,
and pull him eut of the way ?? Yes sir. Did
ha walk through the crowd slowly or rapidly?'
Pretty slowly. Did he say anything ? Never
said a word. Yrousayhe didn't; or you didn't*
hear him t. I didn't hear hitni What did he
do with the pistol after he fired ? Stuck it under
his shawl on his left side and walked off". It
ain't possible for you to be mistaken about these-
things ? No, sir ; I was looking at the man -with-
my natural eyes ;r I'ain't going to tell anymore
than I know; 1 didn't come here to tell lies.
Have you talked to Sam. Phillips since you have
been here, at all ? No, sir ;. I never seed him.
You just got here this morning? Yes, sir; II
ain't seed none of them that come from Fayette-
viile. Did you see any colored men standing
close to Tolar when he fired?" Yes, sir.
Who were they ? Jim McNeill was there, and*
Jim Douglass, and Calvin Johnson, and this here-
John Armstrong, Did you see hint? Yes,,
sir; soon after the pistol was fired I saw him.
Where was he standing when saw you him? He was.
coming nigber to see the prisoner; I don't know
how long' he had been there. What became of
Phillips after, you saw him with his pistol in his-
hand ? He walked up toward the crowd and I.
never saw him any more until I saw him at his
store. You saw him just about the time Archy
fell first? Yes, sir;-1 did. And you never-
saw him afterwards until after the whole skirmish
was over ? No, sir. The pistol that you saw
him have, and the pistol that you-saw Tolar have,—
were these the only pistols that you saw that
day? They were the only ones. -You have-
told me what colored men were standing nearest
to Captain Tolar; now, what white men were-
standing close about him. in front of him, to the-,
right of liim, or left, or behind?' I told you a*
little while ago-who were rushing on him. Were-
they still pressing on him when he fired? No,
sir; every man was standing right still. The
rush had stopped had it. Yes, sir; the rush,
had stopped after he fell down. You mean that,
these young men that you spoke of before were all
standing about there ? They were all standing-
about there, sir. Who was the nearest man to'
Tolar that you saw about there? I can't say;
because they were all mixed up soone might be:
here now, and directly another and again the same-
man again. I.want to know what sefcof men-
there were grouped that were so close to Tolar ?.'
I could not iell,. sir.. I want you to tell me who.
you saw at the same time you saw Tolar shoot,
near him, what white men ?. 1 was busy lookiDg,-
at the prisoner; it frightened ine and I can't re
collect. Didn't you tell me that just before the-
prisoner fell you saw iuithia rush upon him, Sauti
Hall, Ralph Lutierloh and John Maultsby ?. They
were ail there and they ah rushed together, and I>
could not tell who were who.. Lask you if you-,
didn'tle 1 me ia the previous part of. this exami-
uation that when the rush was made on the priso-
ner, you saw iu the rush Sam H.all, John Maultsby
and certain other persons that you named? I.
said there was Sam Hall and Sykes and Ralph
Lutterloh ; I told you they were there. Did.
you name any otlims? I believe not. * Do-
you remember any others new? No, sir..
Now you say they were there just before the pris-
oner fell down, do you ? Yes, sir. "Were they-
in that crowd that was rushing ou to the prisoner ?:
They were all together. Were they in the par-
ty ? Yes, sir.. How close were they to the.
prisoner when you saw him ? About three feet.
The wlioe crowd do you'mean? Yes,, air,.
86
PROCEEDINGS GP A MILITARY COMMISSION,
"What became of the men that were concerned in
it; they turned and ran down Person street didn't
they? They stood right still. They stood
right in their tracks as though they were petrified?
Yes, sir, remained standing right still. Did you
see whether they were standing still there afterthe
pistol was fired? After the pistol fired, every
body poured up to see. and I could not tell whether
they aid it or not. Did you see where Arcby
Beebee was shot: did you go up to him ? Yes,
sir. Did you see anything of Monk after he.
was shot? I saw Monk and Mr. Nixon, when
he wasahot. Did you see anything of him after
he was shot ? I saw Monk try to cut him, and
Mr. Nixon fling him off. What did Monk say ?
He said, " I want to cut his damned thoat.'"
Did he go very close to him ? Yes, sir. Did
he have any weapons? I could not tell
whether he had a knife out or not; I saw Mr.
Nixon fling him off. Now vou say, after Tolar
fired he returned his pistol under his arm ? Yes,
fiir. He fired it with his right hand, did he?
Yes, sir.. And he put it under the left arm.
Yes, sir. How was Tolar dressed that day?
I didn't notice, he had his shawl on. Did you
notice what sort of a hat he had on ? A black
hat, I don't know what sort. You didn't no-
ttice what sort ot clothes ? No, sir. Did you
see anything about the shawl falling off of his
shoulder ? The shawl sort of dropped down as
he put out his pistol and fired. Do you mean
that it dropped off when he pulled his pistol out,
and fired ? After he fired. Which shoulder
did it drop off of? Off the left one. When
he put his pistol back, was it? Yes, sir.
What did he do / He sort of flung it up on his
shoulder. Are you sui e he put that pistol in there/
Yes, sir, I was looking at him with my natural
syes, I was there within two steps of him. Do
you wear spectacles? No, sir. Don't you
usually look with your naked eyes? Yes, sir.
J thought, perhaps you sometimes wore glasses ?
No, sir. This shawl fell off of (his shoulder/
Yes, sir. What makes you think he put the
5nstol up there ? I saw him when he come up;
le didn't look like he had anything, and he put
his hand under his shawl—I didn't know what he
was going to do until the pistol was fired and he
clipped it back. Did you see him take his hand
-out? Yes, sir. After he had put the pistol
in? Yes, sir, if there had been two pistols, or
three, fired I could not have told who shot him,
but there was not—there was not but one pistol
fired and everybody was standing right still when
Ire was firing. There was not but one pistol?
No, sir. You say you were standing with your
back against that tree—didn't the crowd push
you away from from the tree ? No, sir. Did
it push against you9 Yes, sir, but I never
moved. Did you have any weapons that day ?
No sir, after he was shot I said I wished I hadn't
been there amongst it. Did you hear anybody
cry out, in the crowd saying, he had shot him, or
anything of that sort/ I never heard anybody
say he 6hot him, without it was Jim Doug-
lass—. Wait a moment—you hadn't any
right to tell what any body has told you since; I
want to know whether any body cried out in the
crowd while Tolar was still in the crowd ? No,
sir. • You didn't hear any body say (Japtain To-
lar shot him, or any thing of that sort? I
heard it a few minutes after that, but not at the
time. Had Captain Tolar gone away? Yes,
sir. Was it after he turned off"? 1 heard it a
few minutes after he was gone You say you do
not know Tom Powers. No, sir.
Cros3 examination by the Counsel, for the prose-
cution.
Chels, you have b°en fireman on a steamboat
for a long time? Yes, sir. You were blown
up once? Yes, sir. You say you were stand
ing just opposite the main arch, against that tree ?
Yes, sir. How large a crowd did you say there
was there that day ? I reckon about a hundred.
Were they all white or mixed? Mixed up.
More white than black ? More white ones than
black. You saw Beebee when he came down ?
Yes, sir. And Mr. Wemyss was upon his left
hand? Yes, sir. Is that what you say ?
Yes, sir. You are certain of that, Chels, that
Mr. Wemyss was on his left hand ? I think he
was—I won't say for certain When they came
down the steps, was Mr. Wemyss nearer to the
Market house, or was he nearer down towards the
wall? He came down on the right hand
side. Whose right hand side, yours or Beebee's?
Beebee's right hand side. And how came he to
manage to have that thumb twitch around Bee-
bee's left thumb, if Wemyss was on Beebee's right
hand? I didn't say he had it around his left
thumb. You say now ho had it on his right
thumb? He was on his right side; of course he
had it on his right thumb ? So he had that
string on BGebee's right thumb ? Yes, sir ; he
had his club in his right hand, (witness explains,
standing by the Counsel for the prosecution, his
position in reference to Mr. Wemyss. Mr. We-
myss being on the right hand side, and Beebee on
the left.) Which side was Faircloth on ? He
came walking along down sort of behind him.—
Now, after they got down to the floor of the mark-
et house then which side was Wemyss on; when
they came down the stall ? They came like as
if they came down the steps. Where was Fair-
cloth walking ? Right behind him. Did
Faircloth have hold of him ? No, sir; I didn't
see him hold of him then. Now, tChelsj did he
have hold of him or not? Well, he may have
had hold of him, but he was coming down pretty
close behind him; I could not tell—he may have
had his hand hold of him tfnd mav not; there was
a parcel of men before him and Mr. Wemyss had
him, and I could not tell whether Faircloth had or
not. Where was Hardie, the Sheriff; at the
guard house or Phil. Taylor's corner ? I don't
recollect of seeing him at all; Hardie wasn't there
with the rest. You know one way or the other ;
was he there or not ? I never recollect seeing
him there. What do you swear; that he was
there or that he was not there ? I can't answer
that question. You say before Archy came
down that Bond came down? Yes, sir. And
Bond you say, gallanted the ladies out to the
carriage ? Yes, sir. Where was that car-
riage standing ? It was standing as you go
from the river, right in front of the market
house. How far was that carriage from you?
About as far as from me to that table. (About
twenty-five feet.) Who was driving that car-
riage? A colored man, but I didn't know
him. Did you look at him? I didn't notice
him; I sort of noticed the lady—where she was
scratched on the neck there—I never noticed the
black man. How long did Mr. Bond stay at the
carriage after the ladies were helped in ? I saw
him standing talking to them; I could not hear
what they said; then he wheeled right off and
went back up stairs. Was anybody else at the
carriage during the time that Bond was standing
there talking with them? I don't know, sir;
Mr. Maultsby's son went there and talked with
him. Did Maultsby's son go before Bond left
or after ? He left directly after Mr. Bond left.
He was there while Bond was there? Yes, sir.
Which left first?—Bond er Maultsby? Mr.
Bond came away first. Did anybody else go to
CONVERTED AT RALEIGH, NORTH CAROLINA.
87
the carriage ? I didn't see anybody else. Did
anybody go or not / I didn't see them. You
saw nobody else around the carriage at all ? No,
sir. Who held the horses off/ I don't know
—I didn't notice them then. Which way did
the carriage go ? It went down the street.
Down towards Mr. Mitchell's, or down towards
Liberty Point, or over towards the guard-house,
or where? It turned right down the street, and
1 heard them coming down thes'eps; I was trying
to see whether they come down with the prisoner,
and I never noticed which way it went. Where
was the prisoner when you first saw him ? Com-
ing down the steps. Was anything done to the
prisoner at all until after he cleared the market
house,—until after he got out from under the arch,
— did anybody do anything to him ? No, sir—
at the time the prisoner came down,—you know
there was a stall there,—a/bout the time he got to
the corner of the brick wall they rushed on him,
and the officers were knocking at them, and that
is the time he fell down. Nobody made a rush
at him until he got just under the arch uoon the
pavement 1 Yes, sir, just as he was coming out
some one said "rally up, boys." And, at that
time, Beebee was right under the arch going out?
Yes, sir. Then the crowd rushed upon him ?
Yes, sir. As soon as they did, Beebee fell?
Yes, sir. How far was Beebee off from the arch
at the time he fell? About the middle of the
pavement. Just opposite the big arch ? Yes,
sir. You were standing there, you say, oppo-
site the big arch, and Beebee fell just opposite you?
Yes, sir. And opposite the big arch? Yes,
sir. That was where Beebee fell'/ Yes, sir.
And as soon as they drew him up, who put the hat
on his head ? The officer fell down on his back
and the prisoner on top of him; the officer picked
up his hat; I don't recollect, I think the pris-
oner, though, when he was shot, was bareheaded ;
I don't know whether his hat was on the pave-
ment or not, but I saw the officer pick up his.
What officer was that ? That was Mr. Wemyss.
And you saw nothing of the Sheriff? No, sir—
when he was shot, nobody had hold of him but
Wemyss. Just as soon as he got up from that
fall he was shot ? Yes, sir. He was shot op-
posite the centre of the main large arch? Yes,
sir. He was right opposite to you? He was,
sir. Then you say at that time the crowd was
rushing upon him ? No, sir; when he was shot
every man was standing still. Now, while that
crowd was rushing on him, before he was shot, I
ask you if Mr. Sam. Hall rushed upon him ? I
said he was there; I could not tell whether he was
rushing or not. I ask you if Mr. Ralph Lutter-
loh rushed upon him ? They were all there; I
could not tell who was rushing. You saw the
crowd rush, and, although you name these per-
sons, Sam. Hall, Ed. Powers, Ralph Lutterloh
and others, you don't undertake to swear
and you do not wish the Court to understand you
to swear, that they rushed upon him ? No, sir,
I do not, I would not want to tell any more than
I know, sir. I could not tell whether they were
rushing upon him—they were mixed in such a
manner. Now, Chels, recollect, take your time
and think about it, did you see Mr. Hall and
Ralph Lutterloh and Ed. Powers and Sykes—did
you see them after Beebee came down—I mean-
after Beebee got down ? Yes, sir. You are
certain you saw them ? Yes, sir. You kept
your position against the tree, with your face
looking into the market house? Yes, sir.
Tolar, you say, came out of the market house 2
Yes, sir. Out of that east arch? When I
saw him he was coming right along the pavement
amongst the crowd, with his hand under his
shawl? Which side of Tolar was James Dou-
glass on at the time Tolar shoved him ? He was
next to the market house? Jeems was right
on his right hand side? Yes, sir, I was on
Tolar's left hand side. And Tolar shoved
Jeems off? Yes, sir, like anybody wanting to
get through. Now, Chels, at that time you,
say, when Tolar was coming up and shoved Jeems
off, he had his right hand under his shawl?"
Yes, sir. Which hand did he shove Jeems off
with ? He shoved him off with the left hand.
Did he take his left hand and push him off towards-
the right side ? Yes, sir. And that pushed
Jeems almost up against the market house?
Yes, sir. He put his hand on Jeems' arm and
pushed him off? Yes, sir.
(Witness illustrates the position of Tolar and
Douglass—Tolar on the right of Douglass coming
through the crowd and placing his ieft hand on
Douglass' elbow pushing him to the right.)
You and Jeems have been talking about it since
that time? No, sir, we did not talk about xtt
since the day of the frolic,—I mean the day it
occurred. You and Jeems had a talk about it ?
No, sir. No talk at all about it? No, sir.
You say Tolar came up, and had his right hand
under his Bhawl ? Yes, sir. You saw that?'
Yes, sir. You saw him draw the pistol out?
Yes, sir. At the time he drew the pistol out,
how high did he have it—as high as his eye ?
I cannot tell. Don't you know Tolar was stoop-
ing down to shoot ? No, sir. Was he stand-
ing up straight? Sort of leaning a little.
Did you see the smoke from the pisl ol ? I saw
the smoke, because I was in two steps of him.
There was but one pistol fired and I was in two>
steps of him, and if I could not see the smoke, E
haint got no eyes. What sort of a pistol was-
that Tolar fired; was that:a white pistol, or a sky
blue pistol ? I could not tell. Do you know
whether it was a green pistol ? I could not
tell. You can't tell what sort of a pistol it was 2"
He shot it so quick, I could not tell. How*
large a pistol was it ? I could not tell. Was-
it as long as my arm ? No, sir, if it had- beer®
that long everybody would have seen it- Was
it as long as my hand ? I cannot tell. What
is your best impression about it 2 that iS was &
long pistol or a short one? I don't want to say,
unless I can give some idea. You won't say"
whether it was a long pistol or a short pistol T
No, sir. You are sure it was a pistol ? Yes,
sir. Was It a 6ingle barrel pistolr or was it »
revolving pistol ? I could not tell; that. If I
could tell that, I could tell what sort it was,
Tolar shot him, and when he shot him or when,
he drew the pistol to shoot him the shawl fell oflf
of his shoulder? Yes, sir. And he pub
his pistol back under his left side? Yes,
sir. Did. he slip it inside of his vest,
or just under his shawl? I could not tell,
when a man has a shawl on, you could not tell
whether he put it under his vest or not. Don't
you know that as soon as he fired the pistol he
just brought it down to his right side? No.
sir, he did not. You swear he did not? I
will swear till I drop dead he did not. How'
far was Tolar from Beebee at the time he fired ?
About four steps from him. Was Tolar direct-
ly behind him ? Yes, sir. I mean when Bee-
bee was shot, was he in the center of the pave-
ment, or nearer the market house / About the
center of the pavement. When Tolar shot was
he in the center of the pavement? Yes, sir.
How far were you off from Tolar at the time he
shot ? About two steps from him, sir. On
his left/ Yes, sir. Anybody between yon
and Tolar? There was some one standing-
88
BROCKEDIXGS OF A MIUTAUY COMMISSION,
:there, I was busy watching him, I did not notice
•who he was. Was lie a white man? Yes,
sir. You are certain it was a white man?
Yes, sir. Don't, you know it wras a colored
man ? No, sir. Don't you know it was a
mulatto man? No, sir, it was a white man.
Do you know John Armstrong? Yes, sir.
Don't you know that was John Armstrong?
No, sir, I can tell a white man's face from John
Armstrong's. It wrasnot John at all? No,
■ sir. You say you saw Sam. Phillips with a
.pistol? Yes, sir. Was lie.on the pavement
■or oft? On the pavement, about five steps from
■where Mr. Tolar shot, J looked around after he
;sliot and saw him standing there. You saw
Mm with a pistol before Beebec was shot ? Yes,
sir, I saw him have it in his hand before
that. When you first saw him have it in
liis hand was he nearer to Beebee than
Tolar was, or was he further oft ? He
was away back behind Mr. Tolar. Was
ithere a good thick crowd between you and
Sam ? Not such a big crowd but what I could
rsee him. Yousay Sam Phillips did not shoot?
No, sir, he didn't. You aremertain ? I would
••swear till I hung dead by the neck, that Sam
Phillips did not fire, the pistol, sir. How hap-
pened it you spoke up so quick, and said you
(knew Sam Phillips did not shoot him ? I didn't
say that. When the Counsel for the prosecu-
dion examined you, I,understood you to say you
knew Sam Phillips did not shoot him, how came
..you to say that ? (Because if I am looking at
you, and see another man do a thing, and you
■don't do it—and that is the reason I say he didn't
do it. Who has been talking to you since you
lhave come up here about your testimony? I
•come right from home to-day, and nobody has
;bcen .talking to in a; a. Not before you come
.here ? No, sir. "If-mean before you started
•from home; who has been talking with you and
•fixing your testimony ? Nobody .at all, sir.
Haven't you talked to anybody about this matter
:sitice the shooting oceurred ? No, sir, not a
• soul. -Never mentioned it to anybody? No,
ssir. You never told anybody before that you
saw Captain Tolar shoot the man? Yes, sir.
Who did you .tell? John Martin. Which
■ John? Little John. How long since you
rtold John about it ? I told .liim when it was
hirst done, on .Tuesday -I went to .the boat, and he
ssaid " nobody can't tell who shot liim," audi
said " Mr. Tolar shot him;" I told Mr. Dodd so
too. And .you told little John Martin ? Yes,
.sir, and I told Mr. Dodd so, no longer than last
week. As : soon as Tolar shot the pistol, he
'.turned around and flirted his shawl up,—didn't
.you see.him take the end of his shawl, that was
hanging over tlieright-shoulder and throw it hack
ton his shoulder ? .No, -sir. Don't you know
ithat when Tolar turned round, after
.firing the pistol, that he'threw the right end of
his shawl into the 'face of the man. that was
•standing on his left hand ? No, sir. Didn't
'you see him throw the sight end of the shawl into
-John Armstrong's face when he turned off? I
• didn't see that. Didn't he do it ? I don't say,
because-I don't know. Didn't he throw the end
•of the shawl into tlie face of the nearest man to
him, when lie turned off? No, sir; because the
-shawl was not flirted at all, the-snawl was hanging
•over the left arm when lie shot, and-the end of it
didn't get off; and he first threw it right back.
"Where did Tolar go ? He went like he was go-
ing to-walk around the corner, and I never saw
ffiim no more. So Tolar turned and went towards
;the market house ? Yes, sir. He didn't go
ithreugh the.market house.? No sir. But lie
did make to go around the corner? Yes sir.
That, is the north east corner? Uo towards Mr.
Pisliblate'8 store. And you saw Tolar, as soon
as lie fired, turn around and go toward the north
east, corner of the market house? Yes, sir.
And you swear he didn't go throu. h the market
house? Yes, sir. Don't you know, Cliels, that
when he turned off he went right stra-ght through
the market house, through that hig arch ? No,
sir. He didn't do that ? No, sir. You swear
to that? Yes, sir.
lie-direct Examination by the Counsel for the
prosecution:
Do you ever drink anything ? Hardly ever.
You havn't taken anything to drink to day ? No,
sir; I hardly ever drink; I have been a fireman
some fifteen years, and I have a heap of responsi-
hility oil myself, and I never drink ; I have not
drunk to day, nor for a week, nor for a week be-
fore that. Do you say Beebee fell in front of the
arch? Yes, sir. You say he fell right in
front of the big arch? Yes, sir. He was
right at your feet when befell? Yes, sir, he
was withiu two steps of me when he was shot.
Mr. Wemyss and the officers did not let him fall
they just let him down. Anybody who knows
where the tree is I was standing by will know I
was elose. The tree is about the middle of
the arch ? Yes, sir. After Areby fell was he
on your right hand or left hand ? On my right
hand. And you were standing near that little
tree in front of the arch? Yes, sir. The
main arch ? Yes, sir. You say you have not
talked to anybody .about this business ? .No,
sir. Except your telling Mr. Dodd that you
knew who it was—din't you have a talk with the
Judge Advocate this morning? Yes, sir.
You didn't mention that ? No, sir. You have
had a talk about what your testimony would DC
since you have been here, then, haven't you.?
No, sir, not before 1 gave it in here to you. I
mean before you came here? I talked to-that
man. (The Judge Advocate.) Did you ever
hear that Sam. Phillips was - suspected ol having
shot this pistol, before you come in hove to-day?
No, sir. Didn't .you over hear anybody say
they were trying to put it off on Sam. Phillips?
Yes, sir, I heard Mr. Dodd said so. I want.to
know, generally, whether you have ever heard it;
I don't want to know who told you, hut have you
heard from any quarter that they were trying to
put it on Sam. Phillips? No, sir. Did the
gentleman who was examining you here this
morning, say anything about Sam. Phillips?
He asked me who all were there, and I told
him what names I could recollect. I
ask you .if he said anything about-Sam Phillips?
1 told him Phillips was there. Did he ask you
if Phillips fired the pistol? I told who was
there, and he axed me who fired the pistol ? I
don'-.t know what he.axed me about that time,
but he axed me who were tlierey and I told him
all who were, as nigh as J could recollect.
What I want to know is, why, when I was examin-
ing you first, why you said so quickly "yon know
Sam. Phillips did not do it," what was it set your
mind that way. Because I saw he didn't do it
and everybody was standing still. You didn't
see him doit—now why didn't you say I know
Mr. Hardie didn't do it? I seed him with my
own eyes. Why did you select one particular
man out, and say you knewho didn't do it; did
you have any reason ? I ain't got a hit of rea-
son for that—all what I wanted to do, was to tell
what a man done and what another man did not:
I was only just naming the men what had pistols,
and the one that shot. 'Was there any blood
that came out of Archy'e head after he was.ghat?
CONVENED AT RALEIGH, NORTH CAROLINA.
any stain on tlie pavement? No, sir, I did not
see any. Any marks that showed the spot
where he fell? He didn't tall, because he was
laid down. His head was on the ground wasn't
it ? Well, I didn't see any sign of blood at all,
I didn't go close enough to him. And you
say, that place where he was laid down was right
in front of the main arch? Yes, sir. And a
man coming right out of the inside of it, would
have trod on.him? No, sir, it wasn't in the
real middle. (The witness explains on the
chart where he laid, and stating the position as
in front of the little arch and not in the main
arch.) Was it in front of the small arch that
the boy fell? Yes, sir. Which tree was it
you were standing by ? By the little tree in
front of the little arch. Have you ever had
any accidents happen to you in blowing up, or
anything of that sort ? 'Yes, sir. Did it af-
feet your mind so that you can't remember as
well as you could? I got a right smart jar; I
can't recollect all these things exactly. When
did that blowing up take place ? I forgot now
what time; it was some considerable time; I
can't recollect now. Have you been blown up
more than once ? Only once.
On motion the Commission adjourned to meet
on Thursday, the 8th inst., at 11 o'clock, A. M.
Raleigh, N. C. Aug. 8,1867,11 A. M.
The Commission met pursuant to adjournment.
Present.—All the members of the Commission,
the Judge Advocate, the Counsel for the prosecu-
tion, all the accused and their Counsel.
Ttie reading of the testimony taken yesterday,
was waived, there being no objection thereto.
Yesterday's proceedings were then read and ap-
proved.
Simon Beckton, a witness for the prosecution,
having been first duly sworn, testified as follows :
Examined by the Counsel for the prosecution.
What is your name ? Simon Beckton. Do
you live in Fayetteville? Yes, sir; just the
other side of Fayetteville, across the bridge,—
What is your business ? I am farming. Did
you know Archy Beebee.? Yes, eir. Were you
in town the day he was killed ? Yes, sir. What
time did you go down that day? It was pretty
early in the morning. How long did you stay in
town ? I stayed there till about five o'clock.
Where was Beebee killed ? At the market house.
Were you there at the time ? Yes, sir. What
time did you get to the market house ? I got
to the warket house early in the morning. Did
you stay there all day ? Yes, sir. You were
there when Archy was brought out of the guard
house ? Yes, sir. Where were you standing
when Archy was brought out of the guard house ?
I was standing right facing the market house, the
east side. In front of the big arch or one of the
little arches? The big arch. On the pave-
ment or off? Off the pavement, on the ground.
How far from the pavement do you think ? Not
over eight or ten feet. Who came with Archy
from the guard house ? Mr. Wemyss had hold
of him, aud there were some more behind him.
Do you know Mr. Wemyss ? Yes, sir. You
knew him before that ? Yes, sir. How long
have you been living about Fayetteville ? About
twelve or fifteen years. Was Archy brought by
you to be carried up stairs ? Yes, sir. He
was brought along the pavement was he ? Yes,
sir. Did the officers go up stairs ? Yes, sir ;
Mr. Wemyss did, and Mr. Yaun went up. Do
you know what became of the rest of the officers?
No, sir. Do you know whether they went up or
not? I don't know. How long was Archy
up stairs? He was up some time. Can't you j
form some idea ? No, sir. During the time
Archy was up stairs were you standingin the same
place? Yes, sir. ' Were you standing about
the same place all the time? Yes, sir ; all the
time he was up stairs. You were not moving
about? No, sir. Did you see any carriage
while Archy was up stairs ? Yes, sir. How
far was that carriage from you ? I could not
tell the exact distance. It was not very far.—
Was it as far as from you to those nearest gentle-
men ? (about four feet.) I could not say for
certain, I was lodking at them, but could not tell
exact. Was the carriage before you or behind
you? It was beffiind me. Was it in front of
the market house ? Yes, sir. How far was
the carriage from the side walk ? I could not
tell. It was behind you? Yes, sir.—
You say yoa were then three or four feet off the
side walk? Yes, sir. The carriage was he-
hind yon ? Yes, sir. And you can't give me
any idea how far it was from you ? No, sir.
I don't expect yon to tell me the exact distance
but I want you to give me a notion. Could you
hear anybody who was talking at the carriage—
were you near enough for that? I saw Mr.
Yann go to the carriage. I want to know if
you could hear anybody talking as loud as I am
now? Yes, I could hear them of course.
Could you have heard what they said? Yes,
sir, if they had talked loud. Was there any
crowd there ? Yes, sir. How many men do
you suppose? I could not tell. A big crowd?
Yes, sir. Did you see anybody in that crowd
you knew? Yes, sir. Tell me who? I
saw John Maultsby, for one, Mr. Leggett, Tom
Towers, and I saw Sam Hall, Ralph Lutterloh,
and Monk Jule. Did you see Henry Sykes
there ? Yes, sir. Did you see Capt. Tolar
there? Yes, sir. While the boy was up
stairs? Yes, sir. Did you see Capt. Tolar
up there ? I saw him directly after I got up
there in the morning. Did you get there
early enough in the morning to see what people
were doing .about the market house—had they
stopped selling there—the butchers .under the
market ? 1 think there was beef under there.
Did Capt. Tolar sell beef that morning? No,
sir, I never saw him sell any. You saw him
when you first got up there, early, hut you never
saw him sell beef that day ? No, sir. Do
you remember whether you saw him while Archy
was up stairs ? I disremember whether I saw
him while he was upstairs or not. You saw
these others while Archy was up stairs, and you*
saw Capt. Tolar, early in the morning, when you
first got there, aud he was not selling beef?
Yes, sir. What time in the morning did you
get there;? It was pretty early, the sun was
not high." Was the sun an hour high? I
think it is likely it was. Was it two hours ?
I could not say, it was mighty early in the morn-
ing. You say the people were still selling in
the market house, and I understand you to say
there was beef still there ? Yes, sir.
(Counsel for the accused stated that the bell
rung at seven aud a half o'clock in the morn-
ing.)
Direct examination resumed:
Did the bell ring after you got there ? I
think it rung after I got there. How long
after you got there ? I did not take any ac-
count of it. You think the bell rung after you
got there ? Yes, sir. What were these men
doing that you saw about there, while Arohy was
up stairs ? I saw them walking about there
and talking. Nothing uncommon about it?
sir. Did you bear any threats ? I did
ot, sir. Did' you sec any weapons ? Yes,
90
PROCEEDINGS OF A MILITARY COMMISSION,
sir. While Archy was up stairs? Yes, sir,
I saw Tom Powers with a pistol. Did he have
it in his hand ? He had it in a belt. Where
was Tom Powers when you saw him with the pis-
tol ? He was walking around among the
crowd there. Did you see any other weapons ?
Ho, sir. Did you see these ladies come down
stairs, Miss Massey and her mother? Yes, sir
Which came down first, Archy or the ladies.
The radies come down first. Who came down
with them? I saw Mr. Vaun come down with
them, and he went to the carriage with them, and
helped them m. Did they pass by you to go to
the carriage ? Yes, sir, not very far from me.
Could you have put your hand on them ? No,
sir; not exactly. They passed pretty close to
you? Yes, sir. How close? T could not
see, but I think about four or five feet. The
ladies got into the carriage did they ? Yes, sir.
What happened then ; did any one go to the car
riage? I think so; yes, sir ; I saw Mr. Vaun,
standing there, and talking with them, and I saw
Mr. Maultsby go there aad talk with them. Did
you see any one else ? No, sir. Do you not
recollectrany one else ? No. sir. Think of it,
and see if you can recollect any one else. Mr
Powers I think went to the carriage to them.
Which Powers? Tom Powers, Are you cer-
tain about that ? There was so many I could
not exactly tell who it was. Is that your best
impression ; do you swear to it, as a fact ? I
don't exactly swear as he was one, but I think be.
was one. You don't swear to it positively?
No, sir. Did you hear anything that was said
by the ladies, or by tho=e standing talking with
them? No, sir. You heard nothing of the
conversation ? No, sir. Didn't I understand
you to say you were near enough to the carriage
to hear? I said I didn't hear anything, but if
tbey had been talking loud enough, I could have
heard it. You did not hear the lauies sa'v' any
thing to anybody ? No, sir; only I see the mo-
tionof their mouths talking in the carriage, to
Mr. Maultsby, and Mr. Vaun, Mr. Maultsby
audi Mr. Vaun are the only ones you are pos-
itive of going to the carriage? Yes, sir.
What became of Mr. Maultsby—where did he go
when he left the carriage? He went back to the
market house. Did he go into the market house
or can'tyou say that ? He went back to the market
house; I saw him when he turned off from the
carriage. Do you know whether he went in, or
-remained in the crowd in front ? He went in
the crowd in front of it. And then you lost
sight of him? Yes, sir. What became of the
carriage ? The carriage went off after they had
done their talking. Did the carriage go off be-
fore Archy came down stairs ? Yes, sir. What
became of Mr. Vann ? He went back under the
market house, Did you see whether he went up
stairs or not? I didn't notice. How long
was it after the carriage went, before Archy came
down ? I could not exactly say how long it was.
Did you notice Mr. Powers with this pistol that
you spoke of, before the carriage drove off? I
noticed it before they brought Archy out of the
guard house. You don't say you saw him with
a pistol wtiile Archy was up stairs? No, sir.
You saw Mr. Powers with that pistol early in the
morniDg? Yes, sir; when the crowd began to
gather around the market Were you there
when the crowd began to gather? Yes, sir.
Who were the first men that gathered? I didn't
notice about that. Who were among the first?
1 don't know, sir. The crowd was just about
the size it usually is at the market house ? No,
sir; it was bigger. You told me you saw Mr.
Tom Powers early in the morning—what I want
to know is, whether he was there before the crowd
gathered, or after the crowd had partially gath-
ered, or whether he was among a part of the crowd
that gathered first ? Well, sir, he was there
in the morning when I got there. Were there
many there then ? There was some few. Were
there more than usual at the market house
No, sir. And Tom Powers was there
with a pistol? Yes, sir. Was Captain
Tolar there at the same time ? No, sir; it was
not then that I saw Capt. Tolar. When did you
see Capt. Tolar? He came there afterwards.
He came there shortly after you got there ? If
. you don't know don't try to guess at it. If you
can't distinguish the time say so. I don't exact-
ly know what time he come, but I saw him there
in the morning, Now, these other men that
you have named—Sam. Hall and John Maultsby
and Ralph Lutterloh, andSykes, andLegsrett—did
you see them there earl v in the morning ? No,
sir; they came there after they carried the man
up stairs._ You saw them at that time ?. Yes,
sir. Did you see Mr. Powers at that time ?
Yes, sir; he was there. Did you see him there ?
Yes, sir. Did you see Mr. Tolar there at that
time or not? Yes, sir. Didn't you tell me,
when I first examined you on that point, that you
saw Capt. Tolar there early in the morning ? I
said when I first went up I saw him, and when
they brought him down out of the market house ?
I mean when he was up stairs? Yes, sir; he
was there then. . You saw him there while the
man was up stairs? Yes, sir. Where were
you standing when Archy started down stairs ?
Right in front of the market ? Under the mar-
ket? No, sir. In the same place you
spoke of? Not many steps fiom there.
You were standing some eight or ten
feet from the pavement, in front of the big
arch? Yes, sir. Did you see Archy when he
came out of the door to come down ? Yes, sir.
Who was with him? Mr. Wemyss had hold of
him. Which side was Wemyss on? On his
left side, he had Archy on his left. He was on
Archy's right ? He had his left hand hoid of
Archy. That would put him on his right wouldn't
it? Yes, sir. Did you see any body else in
charge of the prisoner ? No, sir; I didn't see
any one else. Was there any body else along
with Mr. Wemyss to help him* in carrying this
prisoner to the guard'house? I never saw any
one else, only I saw when they came down stairs
all pitched on him. Did you notice who was
with him besides Wemyss? I saw Mr. Wemyss
have hold of him, and there was some one else be-
hind him, and I did not notice whether they had
hold of him or not. There were some other men
on the steps at the same time? Yes, sir. Was
there any man in front of Archy? No, sir; I
didn't see any one else. Did you know Sheriff
Hardie? Yes, sir. Did you see him that day?
1 never saw him until after the man was shot,
What was the first thing that attracted your at-
tention, in the way of an attack upon, the prisoner ?
When they brought him down they hollered ''shoot
him ! shoot him I" Was that while he was on
the steps ? No, sir he had got down on the ground.
He was down to the bottom of the steps, when you
heard a great many say "shoot him 1 shoot him"! '?
Yes, sir. Now after this cry of " shoot him 1 "
what was done; did any body do anything to him ?
They come around the corner of the marker, and
turned around to the guard house; and I saw To-
lar While he was still in the market house,
did any body else do anything to him, or attempt
to do anything to him ? I didn't see, except tbey
pitched at him, when he came down stairs. You
CONVENED AT RALEIGH, NORTH-CAROLINA.
91
didn't see any assault made while Archy was still
in the market house? I didn't see. except ,vhen
the crowd made at him, and Mr. Weinyss says
" stand back.,' When was that, before Archy
turned the arch to go down to the guard house?
Yes, sir. You heard Mr. Wemyss say "stand
back" before that? Yes, sir. Who was he
saying " stand back " to ? Mr. Maultsby, and
all them I called their names over. All that you
mentioned before? Yes, sir; and a good many
moie. What were they doing ? They were
making at him, Were they the persons who
weie shouting "shoot him ?" I noticed some
was crying shoot him, but I don't know who they
were. You saw Tom Powers with a weapon
early in the morning—now during the time the
rush was made on him, did you see any weapons
then in the hands of any one ? No, sir. Did
thi-y do any thing to Archy then ? They were
around him, 1 don't know whether be was hit or
not. You saw no weapons ? No, sir. Then
1 understand you Archy turned the arch to go
down to the guard house? Yes, sir. Did
these men you speak of press on him ? They
sort of hollered as he turned the corner. What
happened then ? Mr. Tolar fired the pistol.
Did he fire as soon as he got out of the market house?
Yes, sir, about two steps around the corner, going
towards the guard house. Do you mean this
man was shot alter he got outside of the arch ?
He was a bout one or two steps from the corner, I
ti.ink. You think lie was shot after he had got
two steps from the big arch ? Yes, sir, You
say you saw the man who shot him ? Yes, sir.
Who was it? Tolar. What Tolar. Capt.
Tolar. William J. Tolar ? I don't know how
he spells liis Dame. Is this the man? Yes,
sir; that is the man with the green specks on.
Where was Captain Tolar standing when he shot
him ? I disremember whether he was standing
on the pavement or on the ground, but he was
standing sort of right behind Archy, when Archy
was turning to the guard house. Was he pret-
ty close to the edge of the pavement? Yes, rsir.
He was close to the edge of the pavement, either
on or off? Yes, sir. And he was facing to-
wards Archy, was he ? Yes, sir. How far
was he from Archy ? I don'tthink he was more
than two steps, if that. Did you see him when
lie came up to the point where he fired from?
No. sir, he was standing there when I saw him.
You didn't see where lie came from ? No, sir.
Did you see the pistol fired ? Yes, sir. Hear
it? Yes, sir. Did you see the smoke ? Yes,
sir. Did you hear anyother pistol fired that
day? No. sir; I never heard but one pistol.
That was the pistol you saw fired? Yes, sir.
Did you see tne flash/ I could not say, I
saw the smoke. Were your eyes on the man
when he fired? Yes, sir. Whieli hand
did he hold it in? His right hand; it was
under his shawl and he drawed it out from his left
side, and held it out towards Beebee's head
I see him standing there with his hand under his
shawl. Did you see him standing there before
he shot / Yes, sir. Did you see him 6tand-
ing so when Archy was on the stairs ? At the
time Archy was coming down stairs, I saw him
stand u ith the pistol under his shawl or coat.
You are certain about that? Yes, sir. Do
you remember that distinctly ? Yes, sir. Did
lie draw the pistol in the same spot he fired?
Yes, sir. He didn't move his feet. No, sir.
He returned the pistol did he? I saw him re-
turn it m his coat. He put it back in the same
place he got it from ? Yes, sir. Did you see
him put his hand up, to put it back ? Yes, sir.
What did he have on? He had on a shawl.
Did he put it under the shawl ? I don't know
whether he put it under the shawl, or the coat.
Did you see liis hand go under ? Yes, sir. You
saw it come out with the pistol, and as soon as he
fired, you saw him put it back ? Yes, sir, and
lie wheeled and went off. Did you see him draw
his hand out again? No, sir. Where was
Tolar standing at the time you saw him with his
hand in his breast, while Archy -was coming down,
when this rush was made on him? He was
standing out side, I don't know whether he was
on the pavement or ground. Was he standing
close to the market house? No, sir, not close
to the market house. He was some distance
off from the market house ? Yes, sir. Was
he near the same spot where you afterwards saw
him fire the pistol? Yes, sir. He was not
exactly at the same spot? I don't know, sir,
about that. When Capt. Tolar fired the pistol
you say he was standing just off the pavement or
just ou it, you can't say which—but near the
edge? Yes, sir. Was he in front of the big
arch, or the pillar, or the little arch? I don't
think he was exactly in the center of the big arch,
but I think he was a little back. He was op-
posite the arch, and towards the left hand side,
as you were looking into the market house? I
think to the right. You were looking into the
market house, were you on the right or left of
him? He was at my right. "Was there any-
body between Capt. Tolar and Beebee, when he
fired ? John Armstrong was not fai from him.
Was he in front of him/ i think he was a lit-
tie behind him, a little to his right. Draw the
picture in your mind as you saw it, and tell us
who you saw near him ? Jim Douglass, I think
was close to him. Was he standing before him,
or behind liim, to the right or left of him? Jim
Douglass was facing him, I think, standing with
his back against the bench of the market house.
John was a little behind, to liis right, and Jim
Douglass was just before John? Yes, sir. Who
else did you see about there, close about bim ?
I disremember who else, but a good many people.
Did you see any white men about him ? Yes,
sir, a good many of them, but I could not call
their names. When Tolar returned the pistol,
as you said, which way did he go ? He turned ancl
went around the corner of the market towards the
north. Did you see him turn the north corner?
Yes, sir. You are certain he did not go through
the market? Yes, sir. You saw him when he
went round that north corner of the market?
Yes, sir. What became of him then, did you
see him any more? No, sir. Did you go up
and look at Archy ? Yes, sir. Was he dead ?
I saw him fetch three gapes. And then he
was dead? Yes, sir. Did you see anybody
standing around there ? Anybody else attempt
to get at him? After he fell, I saw Monk run
up to cut his throat. How do you know he
was going to cut his throat ? I saw him with
his knife in his hand. He might have been go-
ing to cut his leg ? I saw him running up with
his knife in his hand. That is the reason you
think he was going to cut his throat? Yes,
sir. You didn't hear him say anything? Mr.
Nixon stepped up and said, Monk, you don't do
so, pushed him off the pavement. You didn't
hear Monk say anything ? 1 heard him cussing,
but I didn't understand what he was saying.
Did you go off and leave the body lying there ?
I stayed there about an hour afterwards, or half
an hour. Did you see any of these men about
there after Beebee was shot, that you have spo-
ken of, Tom Powers, Sam Hall, Leggett, Butter-
loli, or any of those? No, sir. Didn't see
93
PROCEEDINGS OF A MILITARY COMMISSION,
them? No, sir. The last time you saw them
■was when this rush was made? Yes, sir.
Just as Archy got to the foot of the stairs?
Yes, sir. That was the last you saw of
them, when this rush was made? Yes, sir.
Did you learn or see anything more about
this difficulty? No, sir, I saw them rearing
about there, and talking one to another.
When was that? After he was shot. Did
you hear anybody make any exclamations or
say who did it at the time the pistol was shot or
immediately afterwards ? I heard John Arm-
ntrong say as soon as it was done—there was a
good many of them said they saw who did it?
Was it said so that the crowd conld hear it ?
No, sir, not so that all the crowd could hear it.
You heard a good many say immediately after-
wards that they saw who did it. Yes, sir.
Was that before Tolar left the crowd? That
was after he was gone. And one of those you
say was John Armstrong? Yes, sir. Who
else ? I heard Jim. Douglass say so. Any-
body else? I heard Jim. McNeill say so.
That day, then and there? Yes, sir.
Cross examination by the Counsel for the ac-
cused:
Simon who did you belong to formerly ? The
first man I belonged to was Fred Beckton, in
Jones County. Did you ever belong to Jim
Beckton, who lived over at Mary's Garden ?
Yes, sir.
The Counsel for the accused asked for a suspen-
sionofthe examination, until they had retired
for the purpose of having a consultationwhich
request was granted.
At the close of the consultation the Counsel
for the accused announced that they they de-
clined to cross examine the witness.
Patrick Evans, a witness for the prosecution,
having been first duly sworn, testified as fol-
lows :
Examined by the Counsel for the prosecution:
What is your name ? Patrick Evans.
Where do you live? Fayetteville. Were
you living there at the beginning of this year?
Yes, sir. Did you know Archy Beebee? Yes,
sir. What day was he killed ? He was killed
on a Monday; I think it was about the 12th or
13th of February. Were you at the market
house when he was killed ? Yes, sir. What
time did you go there that day? I don't re-
collect what time it was I got there—about the
time he come up stairs. Who was with him ?
I don't recollect, sir, the crowd that had him.
There were some officers? Yes, sir. You
don't recollect who they were? No, sir. Did
he go up stairs § Yes, sir. How long was
he up there ? I suppose he was up there more
than a half an hour. Where were you standing
while Archy was up stairs ? I was not in front
of the market house, and under a portion of it.
Were you under the market house first or in front
first? I was in front first, and then I was under
the maiket house when they fetched him down.
Did you see the ladies when they come down ?
Yes, sir. - Was that before Archy come down ?
Yes, sir. Where were you standing when they
came down? I was standing out in front.
You didn't go underneath until they came
down ? No, sir, I might have gone under but
I was not in front while they came down. You
saw the ladies while they came down? Yes,
sir. Did they pass you when they went to the
carriage ? Yes, sir. How far was the car-
riage from you ? I went close to the crrriage;
I wanted to see the lady. You had some cu-
riosity to see the lady? Yes, sir, I wanted to
see the lady, and I sort of walked along as they
did and kept a little in front of them. Who
went with the ladies to the carriage? I don't
recollect that; I didn't notice to see who was with
thein. Did you notice whether anybody went to the
carriage that they got in ? Yes sir. Several
persons? Yes, sir ; it was right smart around
the carriage. Do you remember who they were ?
I do not, sirv What became of the carriage ? It
drove off towards home, or where she was living.
What became of the gentlemen who were around
it talking to her ? They all turned off and scat-
tered about there, sir; I don't know what became
of them. Nor who they were? No, sir.
Did you see any of these prisoners at the bar in
the crowd that day while Archy was up stairs?
I don't recollect. Either Captain Tolar. or
Monk, or Tom Powers? I saw Monk; 1 didn't
see any of the rest of them. You saw him there
while the ladies were up stairs? Yes, sir; he
was there. What was he doing ? He was
standing about there. Saying anything? No
sir. Doing anything ? No, sir. Was the
crowd quiet, or were there any signs of excite -
ment? Yes, sir; they all seemed to be tearing
about and going on pretty smart;, there was a
good deal of talking about there. What marks
of excitement were there ? They were all talk-
ing and standing about, and moving from one
place to another. Were these the only marks of
excitement? Yes, sir; it seemed very like a
hive of bees. You didn't notice the expression
of their faces, nor bear any threats ? No, sir;
for I was not thinking of it. The excitement—
was it intense enough to excite you ? No, sir.
Atter the ladies went away in the carriage, did
you go under the market house? Yes, sir. You
stood under there until Archy came down ? V es,
sir. How long was it after the ladies left before
Archy came down ? I don't know, sir, exactly,
it was not very long. Was it a quarter of an
hour ? I don't think it was—five or ten minutes
I suppose. Who did you see under the market
house at that time ? I don't recollect seeing any
one but Monk, and I saw Mr. James Atkinson.
Any one else that you can remember at that time ?
Mr. Phillips came up about that time. Was he
under the market house? Yes, sir. You saw
him, and Jim Atkinson, and Monk? Yes, sir ;
they was about all I recollect. You didn't see
Captain Tolar, nor Tom Powers? No, sir.
Drd you see Archy when he started down stairs?
Yes, sir. You were standing back under the
markethouse? Yes, sir. tio that the steps
he came down were to your right and front ? Yes,
sir. You were standing about the middle of the
market were you? Not so far back as the mid-
die. Could you see Archy when he was coming
down stairs ? Yes, sir. Who was with him ?
I can't say. Was there any one with him ?
Yes, sir; the guard was with him. You can't
say who? No, sir. You know the town offi-
ce'rs of Fayetteville pretty well ? Yes, sir.
Can't you rembemher ? 1 can't recollect; I was
not noticing them; I was only noticing him.
Was anything done to him before he got to the
foot of the steps ? No, sir; I saw nothing done
until he got off the steps. What did you see
then ? After he got down off the steps,*1 think
he was on the floor before a rush was made, and I
heard some of them say -'this is my prisoner."
The crowd that was inside or outside ? All.
There was a general rush, and you
heard the exclamation, "it is cur prisoner" ?
Yes sir. Are you certain it was not '* it is my
prisoner " ? That was another remark made,
'• this is my prisoner." You heard both ? Yes,
sir;, and of course then the rush continued until
they got out from under the market house.
CONVENED AT RALEIGH, NORTH CAROLINA.
93
What was in that rush ; did you see any weapons?
I saw no Weapons in the rush at that time, but
iust before the voices, I saw Monk with a knife in
his hand. Was hesayiner anything ? No, sir;
I didn't hear him say a word. Did you hear the
sheriff say anything? No, sir. Did you see
any signs of clubs? Yes sir; their clubs were
up beating the crowd back. You were still un-
der the market house ? Yes, sir. Did you
follow the crowd out? _ Yes. sir. I kept as
close as I could get while it was such a rush; a
man was a little sort of dubious in getting up close.
What happened then / The same remarks were
made, "kill him " ; that was hollered pretty loud
all the time until tbey turned the arch and as they
did, they hollered "shoot him? That was the
first you heara "shoot him," after they turned the
arch ? Yes, f ir. They seemed to have chang-
ed the method of killing him? Yes, sir; the
guard kept them off and they didn't get hold of
him. As he got to the foot of the stairs, there
was a general rush made? Yes, 3ir. You
heard llie exclamations that were made in several
directions from several voices " kill him," " kill
him."? Yes, 6ir. And you heard the excla-
mations "he is our prisoner" and " he is my
prisoner," ? Yes, sir. That continued until he
turned outside of the market house? Yes, sir.
And before the exclamation commenced " shoot
him."? Yes, sir. Was that from very nume-
rous voices ? Yes, sir. Could you see any who
were shouting that? No. sir; he was rearing
and pitching; of course they were all striking at
him, and in fact there was a good deal of noise;
about the time they turned he had fallen, and as
he arose, that pistol fired. Did you see him
when the pistol fired ? I was looking at him,
and Mr. Phillips both, when the pistol fired;
Was he in the same line of the voices with
Mr, Tolar ? Sam was a little off from him.
What was your reason for looking at Sam Phil-
lips ? At the first time I saw him with a pistol
in his hand. And you kept your eyes on him ?
Yes, sir; for I thought he was going to do some-
thing. You had your eyes on him when the
pistol was fired ? Yes, sir. Who fired the
pistol? I can't say sir. Your eyes were on
Phillips when the pistol was fired ? Pretty much
on the prisoner, but I was looking at Phillips.
You saw him distinctly when you heard there-
port ? Yes, sir. And he was not firing the
pistol? No, sir. You don't know who fired
it ? I don't know sir. Did you see Captain
Tolar in the crowd ? I didn't sir, until after
when the remark was made to get back, and it was
then I suppose that Captain Tolar killed him.
Was that immediately after it happened ? Yes,
sir. Was it in a loud tone of voice ? I heard
it, and aBy body around there could hear it, and I
remarked to snme of them "where is he" and I
looked up and saw him towards Mr. Hinsdale's
store. Were these expressions used at all, till
after he got up to Mr. Hinsdale's? I think
Simmons remarked to me, "yonder he goes now."
Did you hear this from several quarters'? Yes,
sir; saying Captain Tolar killed him. How
long was it after you heard the explosion of the
pistol ? As soon as the crowd got back a little,
that expression was used. That was the general
talk in the crowd ? Yes, sir; it was not more
than half a minute before the remarks were made.
Was Captain Tolar in the crowd when these re-
marks were made ? 1 don't know sir, whether
he was or not. Do vou think it was half a min-
nte after you heard the pistol shot that yon heard
these remarks ? No, s r ; I only said it was half
a minute by the time he was up about Mr. Hins-
dale's. You heard the report of the pistols and
immediately heard the remarks ? Yes, sir. As
soon as the pistol was discharged you heard from
several voices that Captain Tolar bad done it?
Yes, sir. That prevaded the crowd ? Yes,
sir; and then some one told me that he was going
up toward Mr. Hinsdale's and I looked at him,
and it appeared to be the same shawl, I didn't see
his face. That man you saw when they pointed
him ont to you, was Captain Tolar? It looked
to be; his back was to me. Yon know him don't
you? Yes, sir. You think there is no doubt
"about its being the same man ? No, sir. How
long was it between the time Archy got to the
foot of the steps and the time that the pistol was
fired ? It was just as long as he could get to the
place. Do you suppose you could have counted
fifty, between the time he got to the foot of the
steps, and the time he was shot / I don't know
sir, it was but a short time. As soon as the man
could have walked around there? Yes, sir.
And I understand you to say it was a short time
between the time he got to the foot of the steps and
the firing of the pistol; Yes, sir. Did the
officers seem to be trying to do their duty ? Yes,
sir; I think they done their duty, they tried to do
every thing to keep them off. Did you see any
pistols besides the pistol you saw in the possession
of Phillips? No, sir. Have you tried to re-
collect ? Yes, sir; but I don't recollect any
others. Can you tell me who you saw in the
crowd immediatly after the shooting ? I don't
know sir; I dont recollect decidedly, of course
there was a good many about there. Can't you
remember any colored men that you spoke to?
Yes, sir; there was a good deal of colored men ; I
can remember some of them. Who did you see ?
There was Simmons and Tucker and a good many
others. Did yog see John Armstrong ? Yes,
sir. You know John? Yes, sir. Did you
see him there immediately, after the thing occur-
red ? Yes, sir. Did you see Calvin Johnson ?
Yes, sir. Did you see Jim Douglass ? I do
not recollect sir. Did you see James McNeill
there ? I den't recollect of seeing him.
Ci'oss-examination, by the Counsel for the ac-
cused.
When was the subpoenoe served on yon to come
up here ? Last Saturday. What is your bus-
iness in Fayetteville ? I am keeping a little
grocery. Keep a shop do you? ies, sir.
What is Sam. Phillips' business in Fayetteville?
He is a merchant there, sir. He is keeping a
shop too? Yes, sir. How far is your shop
from Phillip's shop ? It is some one hundred
yards and may be two hundred. On the same
side of the street? Yes, sir. Are you often
about the market house ? Well not very—I am
generally there in the morning. In going from
your place to the market house you pass right by
Phillip's store? Sometimes I do: sometimes I
go on the other side: just as often on one side as
the other. And in psssing hack you generally
pass by Phillips' store? Often times I do.
Don't you generally pass that way by Phillips'
store as many as two or three times a day ?
Yes, sir. Going and returning from your place
of business ? Some days more and some days
probably not that much. You pretty generally
stop there when yon pass ? No, sir, I don't.
Yon call in sometimes? Sometimes I may
want to buy tobacco or something I have not got
and I go in, hut not more than, and not often, as
to any other store. You and Sam know each
other pretty well? Yes, sir. Have known
each other for a long time/ Fes, sir, some
eight or nine years. Ever had any difficulty
with him? Not but once; that wasn't any-
thing great, sir. You were on good terms ?
Yes, sir. Friendly terms ? Yes, 6ir. You
94
PROCEEDINGS OF A MILITARY COMMISSION,
and Sam, talked tlais matter over I suppose?
No, sir, he has never had anything to say to me
about it. Never said anything to you about it
at all? No sir. Neither before you were
summoned or since? No, sir, I have never
spoken to him since. You say you were there
that day when Archy was shot? Yes, sir.
You saw Archy come down? Yes, sir.
Where were you standing? I was standing
right at the end betwixt a bench, (there, like.)
You were inside the market house? Yes, sir.
At the time he came down the steps? Yes,
sir. Did you see pretty nearly every thing that
occurred while they were bringing him down
stairs ? I don't know sir, about it—I was most-
ly noticing him. Who did you see with him,
Patrick? I could not tell you to save my life
who had him in charge. Do you know whether
Mr. Wemyss was along with him? I don't
know sir. You know him? I do, sir. Was
Paircloth? I don't know, sir. You know
him ? Yes, six-. Do you know whether Mr.
Hardie was along with him? I don't. You
know Hardie well? I do, sir. You can't
name one man that was along with him that
day ? I didn't notice them—I didn't charge
my memory with it; I only noticed Archy,
I wanted to look at him and he was the only one
that I noticed; in fact I didn't think it was going
to be anything of that sort at that time. How
long did you say it was that the ladies came down
before Archy came down? I would say some
five minutes, more or less. Did anybody else
come down the steps between the times that
Miss Massey and her mother came down and the
time that Archy came do wn ? I don't recollect.
Did anybody come down after Archy came down ?
After he came down of coui-se I was noticing
him all the time and I would not have seen them.
I ask you to give me the name of a single man
that was in that crowd, white or colored, at the
time Beebee came down the steps ? I could
not tell, sir, I told you once I did not recollect.
You can't tell the name of a single one ? No,
sir. Did you shift your position alter Beebee
came down—did you take any other position
after he came down ? Of course I followed up
as they moved, I kept up along close by. You
didn't move your position from the end of Becky's
stall until alter the prisoner had passed by you?
Of course I come right in as they came down the
6teps. And you hadn't moved your position at
all, until alter the rush commenced ? Yes, sir.
Then you were in the rush as well as anybody
else. Of course, I was behind them like.
You wei-e pressing in to see what was to be seen ?
Certainly, I was tx-ying to see what was to be seen.
And you were just as much in the rash to see
what was done as anybody eise was? Of course
—I was not as near as the others were—I was
standing back of them. But you were i-ushing
up to see what was to be done ? Of course, I
was. Just like the othex-s? No, sii-, I was
not as near as they were. Now, Patrick, did
you see anything done at Beebee at all while he
was in the market house ? I saw them all, it
looked like to be catching at him. Just name
one man that you saw at that time catching at
him or trying to get hold of him. I told you
before I could not—that it was a general rush,
and Mr. Wemyss and all them were knocking
them off? You remember Mx\ Wemyss was
with him, then ? No, sir, I seed the guard was
there. You said Mr. Wemyss—do you rernem-
ber he was there ? No, six-, I don't recollect—
it was only the guard lhat was in charge of him,
I don't recollect which ones. You say of
coui-se—why do you say of course? It is only
a word, I reckon, that I have got in the habit of
using. You don't mean anything by that—it is
just a common word? Yes, sir. Was Mr.
Hai-die with him at that time? i don't know,
sir. And while you say that you saw him from
the time that he started down the steps or came
to the landing up to the top of the steps until he
got out of the max-ket house—during that whole
time you can't name one single man who was
about him—you can't give the name of a single
man who was in that crowd? No, six-. And
you were looking closely ? I was looking at him
as closely as I could look. And you saw him
all the time ? No, sir, not all the time, because
sometimes there was so many around him, and I
could not see him. Did you see him at the
time this grabbing occurred? Very often he
was up higher than their heads. How did he
get up ? I don't know, sir, jumping up, I sup-
pose. Don't suppose? He was jumping.
And then from the time he was coming from the
steps of the market he was jumping up higher
than the heads of the men? Sometimes.
How many times. I could not say, sir.
Did he jump up as many as five or
six times? I don't believe lie did. Did he
jump up as much as two or three times ? I
think he did; as many as twice. How high did
he jump from the pavement? I don't know, sir,
I only saw he was higher than the others; his
head was about a foot and a half higher than
theirs. You saw him when under the market
house, jumping up as high as a foot and a half
above their heads ? I didn't say under the mar-
ket house. I am speaking about under the
market house? I didn't see him jumping high
under the maiket house. . Did you see him all
the time he was under the market house. Not
all the time. Did you see him at the time those
men were rushing at him, under the market house?
Yes, sir; I saw tiiem when they all rushed at him,
Didn't you look to see who one of these men were
who were grabbing at him? I didn't. How
many grabs did vousee mace at him 1 I can't
tell you. Do you think thex-e were a dozen or
fifteen? I could not say. You saw seme
grabs made at him ? I saw them ail rushing at
him. And you didn't see the men who grabbed
at him? No, sir. In these grabbs that were
made, did you see any knife ? No, sir. Did
you see any pistol ? Otivlhe pistol Mr. Phillips
liad in his hand ? Was Phillips in the market
house? Yes, sir. Did you see him with a
pistol under the market house ? Yes, sir, So
you saw Phillips before the negro came out of the
maikethouse? Yes, sir. What place under
the market house was Phillips when you first saw
him with a pistol ? He was coming irom me,
just come under the arch. He was coming in the
eastern arch ? Yes sir. Coming up towards
the crowd? Yes, sir. Whei'e was Archy then,
when yon first saw Phillips ? I don't think he
had come down the steps So you saw Phillips
come up with a pistol before you saw Archy come
down the steps ? I think it was. Be certain about
it; either before or after, just as you please. That
is what I want to do; I want to tell you just as it is.
Well, tell it,—was it before or after Archy came
down, that you first saw Phillips with a pistol?
It was before he came down. How far did
Phillips come from? I was standing back
when I told you, and he was there at the arch.
How many feet was it? I don't know, sir.
About how many ?—three, or three bundi'cd? I
can't say, because he was standing at the arch,
and I was back in the market. It was a short
distance? Yes, sir. How did Phillips have
tlxe pistol ? Just had it down in his hand. In
CONVENED AT RALEIGH, NORTH CAROLINA.
95
his right hand ? Yes, sir. Holding it by the
stock"? Yes, sir. With the hand down his
right leg? Yes, sir. What sort of a pistol
was it? From what I could see of it, it looked
to be a good sized pistol, about a six shooter.
How long was it ? It was a good long pistol.
How many inches ? I could not pretend to
say; it was about as long as my hand. How
many inches is that ? I don't want to say how
many inches, I don't know. Was it six inches
long? It might have been six inches long.
Was it eight inches long? I don't know, sir,
I could not say. Was it ten inches long?
No, sir, I don't think it was ten. Then you say
it was between six and eight inches long? Yes,
sir. You say it was a six-shooter? Yes, sir.
I said it looked to be one. What reason have
you for thinking it was a six-shooter, and not a
five-shooter ? Because it was just about that size.
How was it mounted; was it steel mounted ? I
don't know, sir, he had most of it in his hand; I
only saw the barrel. And that was before Bee-
bee came down stairs ? Yes, sir. Well, then,
Beebee came down 6t,airs and the crowd rushed
on him, you say ? Yes, sir. And the crowd
passed you before you left your position under
the stall ? Yes, sir, a little. So that you got
behind the crowd ? AJittle, sir. Where were
you at the time the mannvas shot? I was pretty
much against the pillar. Against the main
southern pillar ? Yes, sir. The large south-
ern pillar, of the main eastern arch ? Yes, sir.
And you were pretty much against that ? Yes,
sir. On the pavement? Yes, sir. Which
way was your lace fronting ? My face was
fronting pretty much east. Towards Liberty
Point? Yes, sir; more towards Mr. Davis's,
rather than Liberty Ppint. And that was the
way your face was fronting ? Yes, sir. You
are sure you were nearly against the pillar of the
market house? Yes, sir. Well, now, at the
time Beebee was shot, where was he ? He was
right on the pavement; he tell a little further
down than from the big arch; "he fell near the
center of the little arch. So you think he was
standing near the center of the little south-east
arch ? Something not far from that, sir. Was
he nearer the lower pillar of the small southern
arch? Yes, sir. How far were you off from
Beebee at the time he was shot? I wasn't
farther than to that table, (about six feet.) Were
you near enough to have touched him ? I don't
think L could have touched him, sir. About
six feet ? I don't know whether it was six feet
there or not. It was about that distance ? I
don't suppose it was quite six feet. Between
four and six feet ? It was more than four feet.
Was Beebee about the center of the pavement?
No, sir; m>re, 1 think to the edge than to the
center. How far do you think Beebee was off
from the eastern edge of the pavement ? I could
not say. Did you see him about that time at
all? Yes, sir. And he was nearer to the
eastern edge of the pavement than the center?
I think he was; I would not be positive about
that. Did you see him fall then, just before
the pistol fired? Yes, sir, I didn't exactly see
him fall, but they all went down pretty much to-
gether. Then you saw him raise up ? Yes,
sir. Now, when they raised up together,
who was with Beebee? I don't know,
sir. Was there any man there that you
knew at the time they raised up? No,
sir. Was Sheriff Hardie anywhere about?
I can't tell you. Was Mr. Wemyss ? I can't tell.
Faircloth ? I can't tell. Oan't you tell a
man? I don't recollect at that time. When
Beebee rose up after they fell, was there a man in
: the crowd that you could tell? There was but
one in the crowd that I could tell, and that was
Mr. Phillips. Where was Mr. Phillips at that
time? He was a little to my right. Nearer
to the market house than you? Of course he
was nearer; he was standing betw'xt me and Mr.
Davis like. Was be on the pavement or off?
I don't know, sir; I think he was on. , Was he
very near the edge if he was on ? Yes, sir.
How far was Phillips from Beebee at that time ?
I could not decidedly say bow far. Which way
from Beebee was he—on a line with you? Yes,
sir; he was pretty much on aline with me—he
was a little in front of me. Then Phillips, if he
was on a line with you, and near the edge of the
pavement, he was nearer to Beebee than you ?
He was about as close, I suppose. He was about
three or four feet? He may have been a little
further than that. May have been how many
feet? I can't tell you how many; he wasn't
very far off. Could Phillips have reached out
his hand and touched him ? I don't think he
could. By bending over? I don't know
about that. He was there on his right hand ?
Yes, sir. What was he doing with his left hand?
I don't know, sir. He had the pistol then ?
Yes, sir. Was it the same pistol he had before ?
It looked like it. A small six or eight inch pis^
tol? Yes, sir. It was about the some pistol
you think, he had before ? Yes, sir. Did you
see Phillips with a pistol after that time ? After
he was shot 1 saw him with a pistol. What
was he doing with the pistol then ? He held it
up in front of me and he said "they have killed
him" and he said "you all know my pistol didn't
shoot him, for you can see it has not been fired."
How loud did Phillips speak that? About an
ordinary tone of voice. So directly after the
shooting, Phillips, in an ordinary tone of voice,
said, holding up his pistol, "they have killed him,
but you all see I didn't kill him"? Yes, sir.
How long was that after they killed him? It
was pretty soon. Was Phillips standing at the
same place he was when the man was killed ?
No, sir; he had moved. At the time Phillips
raised that pistol and spoke those words, whatman
was there standing near him ? I can't recollect
—I know it was spoke in the crowd. Ho w far
were you at that time from Phillips? I was
right close to him then. Were you near enough
to put your hand out and touch him ? I think I
could. Was there a good many persons around
hitn ? Yes, sir; a good crowd around him.
And you can't name a singl« man ? I can't.
Eilher black or white? No, sir. Did any-
body look at his pistol, whether it was loaded ?
I just slightly noticed it. You didn't examine
it; you just glanced your eye at it ? Yes, sir, I
just glanced my eye at it. At that glance could
you tell whether it was a four or six-barrelled
pistol? I didn't take notice enough to know
how many times it shot, whether six or four.
You could not tell anything about it then ? No,
sir. You say you don't know who shot him?
No, sir; I could not tell who shot him. Did you
see how far Phillips was from you at the time
Beebee was shot ? I don't know, sir, how far he
was from me. He was about the edge of the
pavement? I think he was somewheres about
the edge ot the pavement—I don't know,
exactly, how far. You didn't see the pistol
when it was shot? No, sir, I didn't.
You didn't see the smoke ? I saw the smoke,
yes, sir. Where did the smoke rise from ? Of
course, when I looked up the smoke was right
there, I could not tell where the smoke come
from. I ask you, when you looked there after
that pistol shot was fired if the smoke of it-was
98
PROCEEDINGS OP A MILITARY COMMISSION,
not there close by Sam Phillips ? No, sir, it
'was not. Say where it was ? It was right
about pretty much where the man fell. Was
there any man nearer to him than Sam. Phillips
at the time the pistol was fired, and at the time
you saw the smoke? Yes, sir, there was a
crowd nearer than he was. Can you name a
man that was nearer? No, sir, I can't, I don't
recollect any man, because I was not noticing.
You spoke of having seen John Armstrong there ?
Yes, sir, but I didn't know you were asking me
about that time. When did you see him?
That was after he was dead and we all had moved
■off. Directly after he fell? Yes, sir, not
very long. Where was John standing then ?
He was off of the pavement. How far off of
the pavement was he ? I don't know sir, be-
cause we all got off of the pavement, and were
standing there talking, me and Armstrong, and
Simmons and Tucker and some others. You
were all standing in a group talking to each
other? Yes, sir. How long after the
man was shot? It was, of course, just
as soon as he was shot, we all got back
right oft"of the pavement. Just as soon as the
, pistol was fired you all got off" of the pavement?
As soon as we could, well, we stood and looked
down on him a little, and then we all marched back
pretty quick. Were you off of the pavement
or were you on the pavement when you heard the
voice say "Tolar has shot him ?" I was on the
Savement then. You hadn't got off at that time?
o, sir. Now at that time when the voice said
wfolar shot him,' where was Tolat? I don't know
sir, for I didn't see him, but just after that, as I got
off of the pavement, some one remarked "yonder
he goes " and I saw him going up the street. So
at the time the voice said ttiat, you don't know
where Tolar was? No, sir. Id a very short
time, afterwards you saw Tolar about Hinsdale's?
Yes, sir; they said that was him. Now from the
time that elapsed, and from the distance Tolar had
got. can you say whether Tolar heard that remark ?
I could not say. You don't swear that he was
there and heard it ? No, sir. Your inpres-
sion isthat he was not in that crowd ? I would
not say either way, because the remarks were
made a short time before they said " yonder he
goes. " At the time you were forming that
group, you and Armstrong and Simmons, where
did Armstrong come from? I don't know sir
where he come from, I could not say. These
people who were in that crowd that day, were
they strangers in the town of Fayetteville, or were
they citizens of the town ? I suppose they must
have been the citizens of the town. I don't recol-
lect seeing any particular stranger there. Were
you not acquainted with a number of persons,
who are spoken of as having been there—do
you know Sam Hall? Yes, sir. Ralph Lut-
terloh? Yes, sir. Ed. Powers? Yes,
sir. Leggett? Yes. sir. Watkins? Yes,
sir. Phdlips? Tes, sir. Tom Powers?
Yes, sir. John Maultsby? Yes, sir. You
are acquainted with ell these men? Iam
sir. Acquainted with all of them well ?
Yes sir. And still you can't undertake to swear
that any of these men were there? No, sir.
I mean the time between when the prisoner was
brought down and when he was shot ? 1 can't
swear for any more than I told jou I saw. of
coutse I can't go any further than that, And
Phillips is the ouly one you have mentioned ? And
Monk. Between the time the boy Beebee was
brought down the steps, and the time the pistol
shot was fired, can you name any man who was
in that crowd, with the exception of Sam Phillips
and Monk 1 Before that I had seen Atkinson.
Now you say there were seveial voices, cried out
" Tolar shot him ! I ask you for the name of a
single man who made that cry. I can't say sir,
Re-direct Examination by the Counsel for the
prosecution :
Where was it you saw Jim Atkinson standing ?
In front of the Market house as I went up. When
you went up after the ladies had gone _ away ?
No, sir; just as the prisoner was carried up.
That was the time you saw him ? Yes, sir; be-
cause I went by and spoke to him, that is the
reason I remember. Did I understand you to
say your eyes were on Phillips at the moment
you heard the report of the pistol ? Yes.
sir. Did you see Phillip's pistol at that time ?
Yes, sir. You saw not only the man. but the
pistol? Yes, sir. Didit go off at the time
you heard jthe report? No sir. You swear
positively it did not? Yes, sir. Was he in
a position foxfire? No, sir, ' How was
he standing? He was standing with his face
towards the prisoner, but his pistol was
down. Was he in the crowd rushing forward ?
No, sir. Did he have his hand thrust out?
No, sir. Was he standing still ? Yes, sir.
with his pistol in his right hand, down by his
side? Yes, sir. It did not go off ? No, sir.
You saw him at the very instant the report reach-
ed your ears from the otlver pistol ? Yes, sir.
How long was it after this report and Beebee
fell that Sam Phillips proposed to some one to
examine his pistol ? That was right straight
off. As quick as the thing could be done?
Yes, sir. One thjng followed immediately af-
ter another without anything intervening ? Yes,
sir. What was it he said then ? "They have
killed him; here is my pistol; my pistol has
never been fired." Did any one take it to ex-
amine it ? Not that I know of. Do you re-
member whether they did or not? I don't re-
member. But he offered it, and any one was at
liberty to take it? Yes,, sir. It was the
same pistol you saw in his hand in the previous
part of the day? Yes, sir, I took it to he the
same pistol. It resembled it in appearance?
Yes, sir. When you talked about this
man Beebee being higher than the heads of
the crowd, do you mean that he was like a
bird in the air—his whole body? No, sir, I
mean his head, of course. His head was hound-
iug like a man who was jumping? Yes, sir.
And sometimes he was a foot or a foot and a half
above the heads of the crowd? Yes, sir.
Now the Counsel for the defense has asked you
if you were not in that rush; how about that?
No, sir; of course I was standing back, just to
see whether they struck him or not, that was
what I was looking for. Were you in the rush
like those other men ? No, sir. Was your
position at all like theirs? No, sir. Were
you pressing on like them ? No, sir. You
were on the outside edge of the crowd trying to
see what was to he done? Yes, sir. But
these other men were pressing on with
vigor and exclamation, as I understand
it? Yes, sir. You can't name who they
were? No, sir. But it seemed to be gener-
ally participated in by the crowd? Yes, sir.
You were asked about your intimacy with Mr.
Phillips. Have you said anything to Mr. Phillips
about what you were going to swear to ? No,
sir, he never asked me a word about it. Has
he ever talked to you about it since you have
been here? No, sir. I have not spoken a
dozen words to him since I have been here; for
he remarked to me that he wanted to ask me
about his people, but he would not dare come
nigh to me, because he knew it was not right for.
CONVENED AT KALEIQH, NORTH. CAROLINA.
97
liim to be talking to me. Was there any par-
ticular friendship between you and Mr. Phillips?
No, sir. You'said there "had been some little
difficulty between you atone time? A little,
but that is all done away now. There was no
particular friendship ? No, sir. It was not the
store, above all others, you trade at? No, sir.
Does he keep the same sort of a store you do?
Yes, sir, he may have more and different articles.
Yon have no particular intercourse with him?
No, sir, none at all. Where did you say Phil-
lips was standing at the time your eyes were up-
on him, and the pistol was tired? He was
standing pretty much in front of me. Was he
to your right and front, or left and front ? He
was a little to the right and front. Was he any
nearer to Beebe than you were? No, sir, he
might have been as near. You think he was
near the edge of the pavement? I think he
was not far from it. In giving these lengths,
and so on, I understand you to say you cannot
speak with exactitude about it? No, sir. But
these arc the best impressions that you can give?
Y e.s, sir.
On motion, the Commission adjourned to meet
on Friday, the 9th inst., at It o'clock, A. M.
Raleigh, N. C., Aug. 9tli, 1S67, 11 A. M.
The Commission met pursuant to adjourn-
m en t.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the prose-
eution, all the accused and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and
approved.
John snaw, a witness for the prosecution,
having been first duly sworn, testified as follows;
Examined by the Counsel toi the prosecution.
What is your name ? John Shaw. Where
do you live? In Fayettpviile, How long have
you been living there'EH,1. Two years. Were
you living there when'^AiYhy Beebee was killed ?
Yes, sir. Were you at the market house that day?
Yes, sir. Did you get there before Archy came
out of the guard house ? Yes, sir. How long
were you there before Archy was brought out of
the guard house ? I was there some better than
an hour. "Where were you standing ? ■ I was
standing on the guard house side when he was
brung out. Which side is that ? The South
side. Were you standing near the south-east
corner? Yes, sir. Between the big arch on
the south, and the little arch on the south?
Yes, sir. You saw Archy when he was brought
out ? Yes, sir. Did you stand there until he was
carried up stairs ? Y'es, sir. Who brought him
out of the guard house ? Mr. Wemyss. Any
one else ? There was one or two more, hut I
didn't notice any one except Mr. Wemyss.
You don't remember who they were? No, sir.
Archy went up stairs ? Yes, sir. How long
was he up stairs ? I could not exactly say point
blank—he was up there I reckon as much as an
hour or half an homy, Did you stand in that
same place all the while Archy was up stairs?
No, sir; I did not. Where did you move to ?
I moved to the east side of the market house.
Did you go inside? No, sir. Did 3-011 stand
011 the pavement or off? ■ I was standing with
my foot on a post that was standing light on the
side of the pavement. How long after Archy
had gone up stairs, before you moved to that post?
I will say half an hour. You moved to the post
shortly before he come down? Yes, sir.
Did you see any crowd at the market house,
while you were standing on the south side, and
before you moved to the'post? Yes, sir; there
was a good many under the market house. And
outside ? A few. Which end of the market
house were they mostly ? About the centre of
the market. Did you see any one there that
you knew? Yes, sir. Who did you see?
I saw Mr. Thomas Powers for one—I saw Monk
for another, and I saw several'more, Did you
see Capt. Tolar there? No, sir ;■ • I didn't see
him at that time. Did you see anything of Ed.
Powers and Sam Hall ? ■ No, sir. ' John
Maultsby ? Yes, sir. Tell any one else you
saw that you can remember? I believe that
is all I can recollect now. You saw Tom Pow-
crs, and Monk and Maultsby there? Yes, sir.
You don't remember seeing Ed. Powers and
Hall ? No, sir. What were these men doing
when 5rou saw them; what was each one of them
doing ? Mr. Maultsby was just walking about
under the market house; Mr. Powers was talk-
ing to some others under there. You noticed
nothing peculiar about their behaviour ? No,
sir. What was Monk doing ? He was walk-
ing abouk Did you see auy weapons in the
hands of any one? No, sir. No knives or pis-
tols ? No, sir. Did this crowd continue to
grow larger, or did it grow smaller ? I did not
particularly notice. Then you moved to the
corner and stood there with your foot on that
.post that you speak ot? Yes, sir. What
happened while you were standing there; did
you see any person that you can name in the
crowd, further than these three, before Archy
came down? Yes, sir; I saw Mr. Bond's
passing. Was that when he came down
with the ladies. It was after he came down
with the ladies ? fDidn't you move around
to the post till after the ladies came down?
No, sir. Did you see the ladies come down
the steps ? I saw them when they were on
the steps, but didn't see them get into the carri-
age. Who was with them 011 the steps ? Mr.
Bond. Did you see the carriage go off? Yes,
sir. You did not see them get into the carri-
age ? No, sir; it had had gone some distance
before I noticed it.- Were you standing at that
post when Archy came down ? Yes, sir. Did
you see him ? Yes, sir, I saw him. You saw
the boy as he came down the steps? Yes, sir.
Who was with him ? Mr. Wemyss. Any
one else? Mr. Ilardie. Any one else? No,
sir, that was all I can recollect. Do you mean
to say there was no one else with him, or do one
else that you noticed ? No one that I noticed.
Did you notice whether there were others there
that you could name ? Mr. Faircloth was
there, but I could not tell whether he was with
them or not. Which side of the prisoner did
Mr. Wemyss come down on? On the light
side of him. And where did Mr. Hardio come
down ? He come down to the left side of him.
Certain of that? He was when he got on the
ground, I didn't s^e him when he come down the
steps. Didn't you see the hoy, as he came
down the steps ? ■ I saw him but I didn't see
Mr. Hardie until he was at the foot of the steps.
Then in passing from the steps to the big arch
to turn out to go the guard house, that pillar
would he between you and those Then? Yes,
sir. Did you see anything happen to him
while he was in your sight? No, sir. You
didn't see any assault made on him then ? • No,
sir. Did you hear any noise or exclamations
while he was inside ? I heard some person
say, I could not tell who, as he- started away
from the foot of the steps—I heard some person
say "Rally, bo3rs!" and by that time he was out
of my sight. Was that all you heard ? Yes,
sir. Did the crowd move about much? They
were stirring' pretty thick, Ditl you see him
PROCEEDINGS OP A MILITARY COMMISSION,
when he wa9 brought into the arch, to turn to-
wards the guard house ? No, 'sir, not till he
got on the outside of the arch. Were you
still standing with your foot on that post ?• Yes,
sir. What happened then? 1 seed5 Monk
with his knife in his hand, making at him, trying
to cut him. How close was he to him ? I
reckon two or three feet of hiim What kept
liim from cuttiug him? Mr. Wemyss; he had
a string on his thumb, and had hold with his left
hand, and he was knocking at him with his stick.
You saw Monk then just after he got outside of
the market house, trying to cut him with his
knife within two or three feet of him? Yes,
sir. And he was kept.off by Mr. Wemyss?
Yes, sir. What else did you see ? I saw Mr.
Tolar come up, he had on a gray shawl and gray
pants. Now, stop one moment, there; where
was Mr. Tolar when you first saw him ? He
was standing right against the pass-way, where
the boy came down ?' In the arch ? Yes, sir.
Which end of the arch was he nearest
to, the north end or the south end ? The
north end. You first saw him after Monk
had mad e this cut at him with his knife ? Yes, sir.
Was he standing still when you saw him ? Yes,
sir. What did he do then* 1 Then he walked
up a step or two, on towards the boyj in the
crowd. How did he get through the crowd ?
He just shoved along there. Did you see what
he was doing with his hands ? No, sir, I never
noticed them till he got to where he stopped.
Where did he make the final stop ? He went
across the pavement,, out on the ground to this
little tree in front of the small arch. He was
standing on the ground? Yes, sir. Were
you looking at hira ail the time ? I was looking
at him. You say he had on a gray shawl and
pants? Yes, sir, and he had his right hand
under his shawl, under his left arm, and when he
got there, there was some person sianding pretty
much in front of him, and he shoved him out of the
way, and drew his pistol and raised it, and shot.
Which hand did he sheve him with ? The left
hand, and he shoved him to his left side. How
close was he to Beebe when he shot ? He was
not more than two, or three and a half feet. The
muzzle of the pistol was not against Bebee's head
when he fired? No, sir. How far do you
suppose the muzzle was from his head ? About
two or two and a half feet. You saw the pistol
in his hands? Yes, sir. What sort of apis-
tol was it ? It was a large pistol. Do you
suppose the barrel was as long as this pencil ?
Yes, sir, the pistol appeared to be eight or nine
inches long. Yon mean including the handle
and all? Yes, sir. What is your business at
home? It has been working at turpentine.
You have never worked at anything to require
you to measure much? No, sir. It was a
large pistol? Yes, sir. You saw it distinct-
ly? Yes, sir. In Tolar's hand ? Yes, sir.
In his right hand ? Yes, sir. Did you see it
go off? Yes, sir, I saw the smoke and the flame
too. And heard the report ? Yes, sir. Did
you see Archy fall ? No, sir. the crowd rushed
in so. I saw him as be was starting to fall, but
didn't see him when he reached the ground. Did
he begin to sink immediately after the pistol fired?
Yes, sir. Where was Archy standing when he
was shot, had he passed the little arcli? No,
sir, he was agin' the little arch. Was he near
the edge of the pavement, or near the middle ?
Near the middle. He was near the middle of
the pavement, about opposite the little arch?
Yes, sir. How far were you from Tolar; from
where you stood, how many steps would it have
taken you to reach Tolar ? About four steps.
How many steps would it have taken you to reach
Archy ? I could have stepped on Archy from
the post. After he fell? Yes, sir. Did he
change his position at all when he fell ? He just
fell right straight out. Did you see who was
standing nearest to Tolar when he fired the pistol?
No, sir, I did not. There were several around
him, but to tell you positive who was standing
right at him, I could not. How many men were be-
tween him and Archy, when he shot ? No person
at ail. Mr. Sheriff Hardie was a little to his front
To his right and front, or left and front?—
Right and front. Where was Wemyss?
He was pretty much to the side' of him. Which
side? The side near the Market House.
You say there was'no one between Tolar and
Archy ? Noy sir. Didn't I understand you
to say he put out his left hand and pushed a man
out of the way? I mean when the pistol
fired. Just before the pistol fired there was
some row? Yes sir. Who was that man he
pushed away? I could not rightly tell you; I
thought it was James Douglas. You have
heard since that it was him, have you not? No,
sir . Has- no one told you since, that it was
James Douglas ? No, sir. Then, your im-
pression at the time was, it was James Douglas ?
Yes, sir. You think so still ? Yes, sir.
You are not confident ? No, sir. Did you
see any one else near him, either colored or white-,
at the time he fired the pistol, or just before ?
No, sir. Did you see anything of Tom Powers,
at all, after the negro got down stairs, out on the
pavement? No, sir, I (Id not. Did you
hear any exclamations, from any quarter, as to
who had fired the pistol ? No, sir. Did
you hear any exclamations at all, after the negro
had got outside, from the crowd, anything as to
what they were going to do with him ? When
this rush was made, jV J before Mr. Tolar shot, I
heard somebody say?£Shoot him! shoot him! "
Did'you hear that twice ? Yes, sir. Did it
seem to be the same man ? Yes, sir. The
same man repeated that twice? Yes, sir.
Did you know who that was? No, sir, I did
not. Did you see anything of Monk ? I
saw him after the hoy was killed. What was
he doing then ? I saw him and Mr. Nixon to-
gether. What was Nixon doing to him ? He
was talking to him. What was Monk doing ?
He was standing up—trembling. Was he talk-
ing loud ? No, sir. That is all you saw of
him after the shooting ? Yes, sir. Did you
see anything of Maulfsby, about the time of the
shooting? No, sir. And you can't tell who
was nearest to Tolar ? No, sir. After Tolar
had fired, what did he do with the pistol ? I
don't know, sir, it went down in the crowd, and T
never saw it any more. Did you see what he-
came of Tolar, himself? No, sir. You lost
sight of him after he fired ? Yes sir. Where
was your attention directed to after he fired?
I went to look at the boy. Did you have any
arms there, that day ? No, sir. Did you
anticipate anything of this sort? No, sir.
Were you any party to any agreement to go
there and rescue him that day? No, sir.
Were you any party to any agreement to go
there to protect him that day ? No, sir. Do
you know of any such agreement, either to res-
cue or protect him ? No, sir, I do not. Is
that all you know of this business ? Yes, sir.
CONVENED AT RALEIGH, NORTH 'CAROLINA.
99
Did you know Capt. Tolar before you saw liim
there that day? Yes, sir. How long have
you known him ? I have known him for a year
or such a matter. You know him well?
Yes, sir. There is no possibility of your being
mistaken about the man ? No, sir, I know him
well. Who fired the other -pistol that was fired
•there that day ? There was but the one fired.
That one you saw fired ? Yes, sir. Did you
see any one else with a pistol, or any arms there,
at any time that day, except Monk with a knife ?
I saw Mr. Phillips have a pistol. Where
•did you see Mr. Phillips have that pistol ? He
had it at the Market, after the boy was killed.
Did you see him with a pistol before the boy was
killed ? No, sir, I did not. Had you gone
up to the boy and looked at him? Yes, sir.
You had jpassed away from the boy when you
saw Phillips ? Yes, sir. How long did it
take you to get up to him? It didn't take me
any time. How long did you stand there look-
ing at him ? Not many minutes. Did you
stand there until he was dead? Yes, sir,;he
was about dead. How often did he gasp after
you got up to him? He gasped once or twice.
Then you turned to go off you saw Phillips ?
Yes, sir. Where was hestanding when you saw
him ? He was standing up towards the arch.
Standing on the sidewalk? Yes,sir. You
say he had a pistol ? Yes, sir* How far
from the boy was he standing ? .Five or six
steps from the boy. Back behind him ? Yes,
sir. In front of the big arch ? Yes, sir.
Was he right in front of the big arch ? No, sir,
right at the edge. The South edge? Yes,
sir. How was he holding the pistol ? Just
down in his right hand, by his, side. "What sort
of a pistol was it ? It was a little, small pistol;
just a common little pocket pistol; it looked like
a four, or five, or a six shooter. Did youihear
Mr. Phillips say anything? I did not, sir.
. See him do anything with the pistol ? No, sir;
Wasn't it that pistol that-fired? No, sir, it
was not. Did you see Tolar -distinctly, when
he fired? Yes, sir.. Gould you see all about
it ? Yes, sir, I could see him from his waist
up. Now, I want to know it some man could
not have poked his hand under his arm and fired
the pistol, and you not have known whether it
was ffolar or not ? No, sir. It was a per-
fectly natural position for his arm? Yes, sir.
Which pistol was the largest, the .one Tolar fired,
or the one Phillips had ? Tolar's was a heap
the largest pistol. How -came you to notice
that pistol that Phillips had ? He had it in his
'hand, and I was walking off and I "just glanced
at it. You didn't examine it? .No, sir, I
did not. Did Tolar draw his -pistol after he got
his position near the edge of the pavement, or
did he draw it while he was coming through the
the crowd ? He took about one step after he
drawed the pistol. You -say it was a large
.pistol ? Yes, sir. Was it as large a pistol as
•you have ever seen ? I could not tell certain
about that. You can't say whether you have
seen a larger one? No, sir. You have seen'
a smaller one ? Yes, sir.
Cross examination by the Counsel for the ac-
cusedx
Who did you belong to in former times ? Maj.
Shaw. Major Angus Shaw ? Yes, 6ir. You
say you have been living in Fayetteville about two
years? Yes, sir. While you were living
there Colonel tConwiu was there? Yes, sir.
Living there when he was there with his regiment?
Yes, sir. Colonel Curwin tied you up by the
thumbs? No, sir; he did not. Were you
not tied up by the thumbs by some of his officers
there—the yankee officers ? No, sir; I was not.
I ask you, John, df you were not tied up by the
thumbs for the charge of cattle stealing? No,
sir,; I wasii'tr You are certain you were not?
Yes, sir. What time did you go to the market
house that day ? Well, I went up there first in
the morning, and then I went back home, and I
went backthere about ten o'elock. What time
was it that Beebee was brought out of the guard
house ? I can't recollect firmly, but I think it
was about two o'clock, or three; I wont be cer-
tain which. . And you .were there all the time
until Beebee was brought out of the guard house ?
Yes, sir. Were you there all the time on the
south-side of the market house, between the large
southern arch and the small southern arch. I
was until Beebee was brought down. How far
were you from the south-east corner ? I was
sitting on that bench there, right opposite where
Mr. Leonard's office used to be. Who was there
during that time ? There were several parties.
Just say whether there was any body there that
you recognised? Tom Munroewas one that
was there that I remember. Any body else ?
William Smith. Are these colored persons?
Yes, sir. Was Louis Smith there? I didn't
see him at the time, that I recollect. Was
Jonathan Hollingsworth about there ? I didn't
see him. Do you know him? Yes, sir.
Was George Hollingsworth there? No, sir.
Was .Calvin Hunter about there? I saw him
passing. Did you see him stop about there ?
No, sir, I,don't recollect that he did. Did Cal-
vin take a seat on that bench by you ? He did
not, sir. Did he take a seat on the bench next
below you? I don't know, sir; I didn't see
him that day. So you don't recollect whether
Calvin Hunter took a seat there or not ? No,
sir. How long had you moved from that posi-
tion around the south-east,corner before Beebee
was brought down ? It was some time. About
how many 'minutes, fifteen or twenty minutes ?
Yes, sir; fifteen or twenty minutes before he was
brought down. Now, from that place where
you took your stand, your foot upon that post,
could you see the steps of the max-ket house r
Yes, sir, I could look right straight under, there.
Which arch did you look through to see the steps
•of the market house ? Between the two arches.
By the arch I mean the opening—which opening
did you look through ? I looked right between
the small and the large arch. Between the
6mall arch and the large arch is a pillar—did you
look through the pillar ? No, sir; there is no
pillar. I think there is ? I don't think there
is, sir. . /
(Witness shows -on the chart his position as
looking through the large arch.)
So you were standing with your foot upon that
post, at .the south-eastern corner, and you looked
through the large eastern arch? Yes, sir.
You didn't look through the small arch.? No,
sir.
(Witness again shows his position on-the chart,
and this time says he was looking through the
small arch on the south-east corner.)
You were standing with your foot on that post
near the south-east corner of the market house ?
Yes, sir. Off the pavement ? Yes, 6ir. And
you looked through that' small arch, which* is-
nearest down towards the guard hous&.lfod Wa
100
PROCEEDINGS OF A MILITARY COMMISSION,
the east front ? Yes, sir. And you could see
Archy from where you stood by the'steps ? Yes,
sir. Which foot did you have on that post; do
you recollect ? I had my left foot on the post.
And in that position you say you saw them com-
ing down the market house steps with Beebee ?
Yes, sir. What part of the steps were they on
when you first saw Beebee ? They were on the
lower portion, coming down next to the ground.
How many steps off trom the ground were they
when yon first saw him ? I could not tell
lirmly, point blank. Just come near it? Two
or three steps. And at that time who did you
say was with him ? . Mr. Wemyss. While he
was upon the steps? Yes, sir. Was any
body else with him but Mr. Wemyss ? I could
not tell-you whether there was on the steps, or
not; I never saw Mr. Hardic until after he got on
the ground. • Which side did you see Wemyss
on ? On his right hand side. f Did Wemyss
have hold of him? Yes, sir. How did he
have him ? In his left hand.' Did he have
him in the collar ? No, sir. Did he have
him by the comforter around his neck'? ,No,
sir ? How did he have him ? He had a string
around his thumb. You didn't see whether
Faircloth had bold of him or not ? No, sir.
Did you see Faircloth there at all ? He was
along behind Archy I think as well as I can recol-
lect. Well now, at that time when you first
saw him upon the steps ; did you see any thing
of Bardie, either upon the fioor or upon the steps
or any where else, when you first saw Beebee?
I don't think I did, I think Mr. Hardie was up:
the steps farther. They got down upon the
floor and then you saw Hardie? Yes, sir.
Hardie came down afterwards ? I don't know
whether he came from up the steps or not; I
could not tell you positively. Don't you re-
member that Wemyss had just got down on the
floor of the market house, and as soon as he did
Hardie came running down the steps right after1
him? No, sir; I could not say that, because
I don't know firmly. You don't know wheth-
that is so or not? No, sir. That is right,
tell what you know; now after they had got
down upon the floor, then you saw Hardie?
Yes, sir. Now where was Hardie when you
first saw him ? He was walking by the side of
him, What side ? On his leit side. Did
he have hold of him? I can't say certain
whether he had oif-not. Was he close to him ?
Yes, sir; he was close enough to have hold of
him, but I could not say whether he had or not.
Did you loose sight of them before they got out
of Becky Beu's stall? Yes, sir. You lost
sight of him directly after they cleared the steps ?
Yes, sir. When they got behind the pillar, how
far did.they come from the foot of the market
house steps out towards the end of Becky Ben's
stall; before you lost sight of them? They
did not have to go a very" long distance—just a
lew steps. As "many as three or four steps ?
Yes, sir. Now during the time they were go-
ing those three or four steps from the foot of the
steps or to where you lost sight of them, were
you looking at them all the time? I looked
at them as long as I could see them? Now du-
ring that time, while you were looking at them
between the steps and the arch of the market
house when they got so that the pillar shut out
your view, did you see any thing unusual occur ?
Of Mr. Tolar? Anything strange; anything
that was noticable? No, sir; I did not. Then
you saw no more of them until after they had
turned around the corner of the main arch?
No, sir. When they turned there, you were
still standing with your feet 011 that post ? Yes,
sir. Now' what was the first thing that attract¬
ed your attention after they had turned that cor-
ner upon the pavement ? I heard some persons
say "rally." That was the fix st thing ? yes,
sir. As soon as the party with Archy turned
that corner then you heard some one say "rally"?
They said it as they were turning the corner.
Well then, what was the next thing? Well, I
saw Mr. Tolar coming up, but did" not notice of
his having any weapons; I saw Monk have his
knife. llow far did Arcliy get down the pave-
mcnt before he struggled; before he made
a scuffle, or did he make no scuffle at all?
I didn't notice his making any scuffle. Now, I
want to know of you whether, you were looking
closely at Archy, from the time he turned that
corner, until the time he was shot? No, sir, I
was not looking at him all the time. Some-
times you were looking at him and sometimes
looking at other people ? No, sir, I was not;
I was looking back towards Mr. Tolar after I
heard them say to rally, upon him. How far
had Archy got down the pavement before lie
was shot "? He got right against the arch.
Against which arch ? Against the pillar.
Which pillar ? The little pillar. The pillar
of the little arch ? Yes, sir, right on the cox*-
ner. Had he got down opposite you ? Yes,
sir, just about opposite me. And in the center
of the pavement? Yes, sir. What do you
mean by opposite j'ou ? If any one was to
walk along and get against me in front, I would
call that opposite. Which way were you look-
ing at the time ? I was looking up in Mr. To-
lar's face, then. So you say Archy was in a
stratght line between that little post and the cor-
ner of the market house ? I could not say who,
he was directly straight, beeause I didn't notice
particularly enough for that. What is your ixn-
pressions, that he was a little further down or a
little further hack than that ? He was some-
where along against the arch. Just against
the little post ? I would not say for certain
point blank. Was it before he got there or af-
ter he got there that you saw Tolar come up into
the crowd ? It was just before he got right
against the arch. Could .you see' Tolar come
through from the north portion of the large arch ?
Yes, sir. Up near the north pillar? Yes,
sir. Tolar went right across the pavement?
Yes, sir. Didn't make any halt at all ? He
did halt a little for the people. You saw Tolar
come right across the pavement? He didn't
come right straight across, ho went cat-a-corner-
ed. He wont across the pavement and off the
pavement? Yes, sir. At the time Tolar
fired, how far was he from you ? He was two
or three or four steps. Was Tolar off the pave-
ment or oir? He was off. How far off?
No distance to be mentioned. Are you certain
be was oil' the pavement at all ? Yes, sir, I am
certain he was not standing on the pavement.
And he was only two or three steps from you?
Y es, sir. How did Tolar have his hands when
you first saw him start ? He had one hand un-
dor his shawl. What was he doing with his
left hand? He was swinging his left hand.
He had his right hand under his shawl ? Yes,
sir. That was a gray shawl? Yes, sfr.
Was the shawl pinned or fastened in any way?
I could not say certain that it was, I don't know
whether it was or not. , Did you notice wheth-
er it was caught together or holding together up
by his throat? 1 don't recollect. ""But you
are certain he had his right hand under his shawl
at his left side? • Yes, sir. And he came
right up—did he come running or walking?
Walking. Walking fast or at a moderate gait ?
He just stepped up at a common gait. Until
f he got within three or four steps of Beebee ?
CONVENED AT RALEIGH, NORTH CAROLINA.
101
Ye8, sir. Was anybodj* between him and Bee-
bee? When be was coming along, there was
one man that I noticed being between them,
that he pushed away. Did he push anybody
else out of the way? I don't know that he
did; I never saw him push but one person.
And when he got up there he pushed that person
out of the way? Yes, sir. That person was in
front of him. Y es, sir. Right between where
he stopped when he fired, and where Beebeewas
when he was shot? Yes, sir. Could you see that,
was Jim Douglas? Yes, sir. Which way was that
person looking ? I cannot tell exactly, I was not
noticing the person, I was noticing him. But you
had to notice the person ; which way was that per-
son looking ? I don't know rightly ; I could not
say for certain which way the person was look-
ing. Don't you know whether he was looking
back at l'olar ? 1 don't think he was; he might
have been looking across the street. Tolar
came up, with his left hand; he pushed him out
of the way? Yes, sir. Where did he push
him ? Some where about his shoulder. Just
shoved him one side? Yes, sir. Did you no-
tice whether he turned him .around or not ? I
did not, sir. Did you notice whether it was a
smart push or a gentle push ? I never noticed
in particular. Which way did he push him : by
his right, or to his left/ As he walked up, he
pushed him to his left. Row at that time you
say Tolar drew the pistol ? He didn't walk, I
don't think, more than one step after he drew the
pistol ifom under his shawl. So he drew the
pistol, and then took another step forward ? Ye3,
sir. And he brought the pistol up how ? He
threw the muzzle (witness represents throwing the
muzzle first into the air, and then bringing it
down to a levei.) Waste standing straight at
the time? Ho, sir. Was he leaning back-
ward? No, sir, just leaning front a little. Was
the pistol pointed straight, or was it pointed down
a little/ I could not tell. Was Beebee stand-
ing straight at that time ? I don't know, sir.
I wasn't noticing Beebee at the time. You had
all your attention directed at Tolar,? Yes, sir.
Was there anybody between you and Tolar at that
time? No, sir, there was not. So it was a
clear open view ? I could see him. Nothing
to obstruct it at all? No, sir. No body be
tween him and Mr. Tolar? I don't know that
there was anybody between Tolar and Beebee, on-
ly the man he had pushed out of the way. And
he wasn't between him then, was he ? No, sir.
Did you notice who was on Tolar's left hand at
the time? No, .sir, 1 did not. . Where was
James Douglass ? 1 never noticed James Doug-
lass; I thought it was him that Captain Tolar
pushtd out of the way. What became of him
after he pushed him out of the way ? Who ever
it was he pushed, he stood there. Stood on To-
lar'sleft? Yes, sir. So he was the only man
near to Tolar on his left? Yes, sir. You are
certain about that? Yes, sir. Was there a
crowd around Tolar, or was Tolar sort of outside
the crowd ? At the time he shot the man, all
crowded up pretty much behind him. Behind
him on the pavement, or off? Some were on,
some ofi, and some were under the market. Well,
was the crowd up near to Tolar, or was he iujad-
vance of the crowd ? They were up near to
him. How far off was the nearest one from him?
I don't know,isir, rightly. Now, John, can you
give us the name of a single man, just one, white
or black, that was standing there in the crowd at
the time the pistol was fired ? Yes, sir. Just
give it to us. Fat. Evans was one. Where
was he standing ? He was standing up against
the arph. Which arch? The small arch, he,
had passed in and got up with Ms back against
the arch. Against which side of the arch, the
southeast side'? Yqs, sir. lou are sure
that he was down there? Yes, sir. You say
he was standing there when the pistol fired ? X
could not tell you for cert-fin. That is what I
askjoufor; bow long before that did: you-see'
him standing there? It was after. How long
afterwards ? By the time I could get in to look
at the boy I saw Pat. I repeat the question :
can you give me the name of a single person,
white or colored, that was standing there in that
crowd at the time the pistol that was fired, except
Tolar ? Monk was there for one I am certain.
Where was Monk at that tim° ? He w.as in the
crowd, but to tell you rightly where he was, 1
could not. You didn't see him'at the time the
pistol was fired? No, sir, not at that time, but
I saw him so shortly afterwards that I knew he
could not have jot out of the crowd. You
haven't told me the name of a single person who
was about there at the time the pistol was fired ?
I told you Monk was there. Give me another
if you think you have proved Monk was there.
Robert Simmons was another. Now tell us
where Robert was? He stood right out behind
him, so that Robert was right there between the
corner of the market house and Davis' corner ?
Home where along out in that quarter, sir. How
far was Robert behind him ? I could not tell
you, sir. Was he two or three feet; could you
have turned around and touched him ? No, sir.
Just point out something to show how far off he
was from you. He was in speaking distance.
That might be fifty yards; as far as the Judge Advo^
cate? . Further. As far as that pillar ? I reckon,
he was, (about twenty-five feet.) Was Robert Sim-
mons standing behind you and about twenty-five
feet? Yes sir. And he was back of you? Yes, sir.
Now tell us another one/ I believe that is all
that I can recollect, sir. You ean recollect no
one? No, sir. I don't mean to your front;
either to your right, or to your left, or rear; any
where; another man that was iu that crowd at
that time? That is all I recollect, sir, now.
Was Monk there, did you say ? Yes, sir, he was-
there. And as for Simmons, you are certain
he was there ? Yes, sir, for I heard his voice.
Because he was behind you, and you could sen
him ? I didn't see him; I only heard his voice.,
What did he say ? He was talking to soma,
persons; I don't know rightly who. What did
he say; one word he said? I don't recollect
nary a word that he said, hut I heard his voice
behind me. Did you see John Armstrong there ?
I did not, sir, not till after he was killed. Where
did you see him then ? After 1 passed Mr,
Phillips, I went over to the corner store, Mr.
Taylor's store, and came back, and John;Arm-
strong, Sam 1'oomer and several others were there
That was some time afterwards ? ■ Yes, sir.
Did you see any thing of James McNeil there ?
No, sir, I don't recollect that I did. . Did you
see any thing of Calvin Hunter there at the time
of the shooting? No, sir,I saw him just before
the boy came down the steps, passing by there,
but didn't see him after the boy was shot. I
mean at the time the hoy was shot, did you see
him then? No, sir, I didn't. Did you see
young Leary there ? No, sir. NorSamToomer?
Not until afterward. You saw no person there
at the time the shot was fired except those you
have named? No, sir. Now, as soon as,
Tolar fired the pistol you saw the flash? Yes,
sir. You saw the smoke ? Yes, sir. You
are certain it was that pistol that was fired ? Yes,
sir. Then what did he do ? He went off from
the crowd. Which way? I could not say, .
sir. What did he do with the pistol ? I don't,
know, sir. Which way did he tnra? He
102
PROCEEDINGS OP A MILITARY COMMISSION,
turned right straight around. Did he turn to-
"ward the market house, or the other way ? I
«ould not tell, sir; I didn't notice, but I noticed
he was gone out of the crowd shortly afterwards.
You didn't see what he did with the pistol? No,
sir; when he lired, it went down into the crowd,
and I didn't see it any more. Why was it your
whole attention was drawn toward Mr. Tolar be-
fore he drew the pistol ? Because I saw him
have it' in his hand under the shawl. You saw
the pistol before he drew it ? No, sir, I didn't.
Was your attention attracted towards him merely
because he had his hand under his shawl? Yes,
sir, if a man was to have his hand under his shawl
standing up in the crowd of course you would
notice him, it would be a little more curious than
any one else. How large a shawl was it ? It
was a good large shawl. Was there another
man there in that crowd before Tolar drew his
pistol that had a shawl ©n except Tolar ? I
never noticed any other one, sir. Was there no
man there, that you noticed, that had a shawl on,
or his hand tinder his shawl? No, sir. So
that was the only reason why your attention was
•drawn to Tolar before he drew the pistol, because
he had his hand under his shawl ? Yes, sir.
And there was no other reason? No, sir.
Nothing in his manner ? No, sir. Nothing
an his coming up ? No, sir. And no other
reason in the world except that he had his hand
funder his shawl that attracted your attention ?
No, sir. Do you know Tolar? I have been
(knowing him for a year and better. ■ Were
tthere not other men in the crowd that you
had known as long as Tolar, and longer? Yes,
sir; there was other men that I knew longer.
And there was no other man in the crowd that
you noticed at all, except Tolar ? I just notic-
«ed several, but then I didn't,pay any particular
motiee'Of any of them. You didn't take suffi-
•eient notice of them to (remember them ? No,.
«ir. You say, shortly alter the shooting ; al-
©lost as soon as <the firing was done, that you
pressed up into the crowd to see the boy ? Yes,
«ir. And he was lying then upon the pave-
snent ? Yes, sir. That you then made your
way out of the-crowd, and as soon as you did,
you saw Sam. Phillips with a pistol in his hand ?
Yes, sir. Which hand did he have the pistol
an ? In his right hand. And his right hand
was down by his right leg? Yes, sir. Was
he doing anything with the pistol ? 5 Not a
thing. Was he saying anything about the pis-
itol ? No, sir. Did you hearhim say a word
to nobody. I did not, sir. Did you hear
.anybody say a word to him ? No, sir; not at
the time. Be was just standing^ there with the
pistol in his right hand ? Yes, sir. You saw
that pistol ? I just looked at it as I walked by
him—1 didn't stop to notice it. Did you see it
sufficiently well to be sure it was not a small pis-
tol? Yes, sir. One of these small pocket
pistols? Yes, sir. Looked like a four or
.five shooter ? Yes, sir. You spoke just now
of something about the length of it; was it five
inches long ? I guess so. How many inches
-do you think it was, five or six or seven; don't
.you think it was longer than seven? It might
have been; 1 could not say it was any longer.
Take eight inches; do you think it was longer
than eight inches? I don't think it was.
•Can't you say nine inches ? It might have been
nine, bnt I don't think it was nine. Will you
•undertake to swear it was not nine inches long ?
No, sir; I would not. Will you swear it was
not ten inches long? Yes, sir; I will swear it
wasn't twelve inches long. Will you swear it
wasn't ten inches long? I don't know, sir
abput that ; I would not swear about it, of course.
But you are willing to swear it was not twelve
inches long? Yes, sir. The whole pistol?
Yes, sir. Do you remember how it was mount-
cd whether it was brass or silver or steel mounted?
No, sir; I didn't notice it particularly. Did
you see Mr. Phillips hold it up? No, sir.
You didn't hear him say " look at my pistol, it
hasn't been shot off." ? No, sir. You heard
nothing of It ? No, sir. Where did Phillips
go with the pistol after you saw him ? I don't
know where he went, sir. Where did you go
after you saw the pistol in Phillip's hand ? 1
went over to Mr. Taylor's store, and stopped
there a few minutes, and come back to the mar-
ket again; and I never saw Mr. Phillips any
more after that.
Re direct Examination by the Counsel for the
prosecution ?
You say you haven't been much accustomed to
measuring ? No, sir. How many inches do
you think that tape is ? - It might be twenty-
four (tape measures two feet eight inches.) Tell
me how long do you think twelve inches is on
that tape ?
(Witness measures ofl eleven and three eighth
inches.)
Show how long one inch is ?
•(Witness measures oil' one inch and a quarter.)
Counsel for the prosecution said : " I mearly
wished to show how inaccurate witness' guesses
were in reference to the length of pistols.''
How long do you ; suppose the barrel o£ Mr.
Phillips pistol was by this tape ?
(Witness measures off five and one fourth
inches.)
How long was the stock?
(Witness measures off four and three-eighth
inches, making the total length of the pistol about
nine and a half inches.)
Did you see Phillips' pistol well ? I gust had
one look at it. And your opinion is formed
from that? Yes, sir. Yrou think Tolar's pis-
tol was bigger than that? Yes, sir; it was a
larger pistol than that. The Counsel for de-
fence has asked you who you saw at the time To-
lar fired the pistol; did you see any body at the
very moment the pistol was fired ? Nobody ex-
cept liim. Your eyes were fixed upon him at the
time? Yes, sir. It is impossible for you to
•say that you saw anybody else at that moment?
Yes, sir. You saw a man about firing a pistdl,
and you looked at him until the pistol fired ?
Yes sir. Didn't you think the pistol was about
to fire, when you saw it pointed out? Yes, sir.
Didn't you think it was about to fire at Archy ?
Yes, sir. Were you alarmed at the moment?
Yes, sir, it sort of frightened, me. It shocked
you? Yes, sir. Your attention was drawn
by that? Yes, sir. You saw nobody else at
that time? No, sir. Immediately afterwards
and immediately before, you had seen some men ?
Yes, sir. At this instant, you could not see any-
body else? ' No, sir. Now, did you see To-
lar's pistol better .than you saw Phillips' pistol ?
Yes, sir, I did ? You saw it better ? Yes, sir.
You say that was a big pistol ? Yes, sir. How
long do you think that was on the tape ? (Wit-
ness measures -olf sixteen inches.) Yoii swore
positively just now that Phillip's pistol was not
twelve inches long ? No, sir, I didn't swear
that. I said I thought I could swear it was not,
but I didn't do it. I understood you to say so.
No, sir, I didn't; 1 said I would not be willing to
swear either way. I understand you will swear
to no length ? No, sir. That you make an
estimate about it; you have a (strong opinion, but
as to swearing positively, you can't do it ? No,
sir. You have been asked what attracted your
attention to Tolar more than anybody else ? "You
CONVENED AT RALEIGH, NORTn CAROLINA.
aaid because he had his hand in his breast; did he
have his hand in his breast when yon'first saw
him ? Yes, sir. And you think that was
what attracted your attention to him ? Yes,
sir. Was the crowd pretty noisy at the time
you first saw Tolar? Had you heard this expres-
sion, "rally, boys"? No, sir. Did you see
Tolar first, or hear somebody say " rally, boys "1
I saw Mr. Tolar before I heard that expression.
And he had his hand in his breast then ? Yes,
sir. Are you certain about that,, which you
heard first? Yes, sir, I didn't particularly no-
tice him as much then as I did after hearing the
word. I saw him come walking up. You saw
him, and immediately or shortly afterwards you
heard the word rally? Shortly afterwards.
Then you saw him move/ Yes, sir. Did you expect
any mischief from him when you saw him mov-
ing? No, sir. I could not tell much about it.
You were beginning to be suspicious that some-
thing was going to happen ? Yes, sir, by seeing
Monk with his knife trying to cut at him. You
say Tolar was in the crowd with his right hand in
his breast; you saw Monk make at this man and
cut with his [knife; you saw the man with his
knife in bis breast, moving through the crowd to-
wards the prisoner ? Yes, sir. And that at-
tracted your attention you say ? Yes, sir. And
after this circumstance, you looked at him until
he had fired ? Yes, sir. Didn't you look at
Monk when you saw him making at him with a
knife?. No, sir. Didn't that attract your at-
tentioh, too ? I didn't notice him at all, he was
pushed back. Where did you say Pat Evans
was ? Standing against the wall. Just after
you had gone up, and looked at the prisoner?
Yes, sir. Against the wall of the market house
or the arch? The arch. Which arch do you
mean, the small arch at the corner ?, Yes, sir.
In the opening ? No, sir, he was standing with
his back against the brick wall. My meaning
of the arch is the opening in the wall that you go
through, he was not standing in the opening?
No, sir. Against the bricks between the little
and big opening ? Against the little opening.
Which side was be on, the side that is nearest to
the big opening ? No, sir. The side next to
the corner? Yes, sir. You say Pat Evans
was standing there when you saw him? Yes,
sir. That was after the pistol was fired, and
the man was down ? Yes, sir. You said Bob
Simmons was standing about twenty five feet
from you? Yes, sir. He was behind
you? Yes, sir. Did you see him be-
fore or after you went up to the dead body ?
I saw him when I went to the dead body.
Was he standing out there when you saw
him? I heard him speak to some person.
So your opinion was from the sound of his voice,
or did you see him ? No, sir. You didn't see
him ? No, sir, not until afterwards. You
heard a voice that yota thought was his, and you
think it was twenty-five feet off? Yes, sir. I
ndderstand you to say you didn't see him at all?
I never saw him till after. You saw him after
Beebee was shot? Yes, sir. Where was he
standing when you saw him? He was standing
looking at the boy. But you had heard his voice
before? Yes, sir. Almost at the time'of the
shooting? Yes, sir. You say you didn't see
Armstrong there, for hew long after the shooting ?
I saw him in a short while afterwards. Had you
walked away ? I had walked around the street
and back. Let me see if I understand you: af-
ter this pistol was fired you immediately pursued
your way ia the crowd and saw the dead man;?
Yes, sir. You turned off and went out of the
crowd, and went across the street? Yes, sir.
Did you go all the way across to the next pave¬
ment? Yes, sir. Where did you go to across
the pavement? To Mr. Taylor's. Didn't you
say you had seen Tom Monroe aBd William Smith
that day? Yes, sir. What time? Before
Beebee come down. Were you taken up by
Colonel Curwin for any ofl'ense, or by any of his
troops? No, sir. You were not even taken
up ? No, sir. Nor any charge against you
that you ever heard of? No, sir, our folks had
a false charge against me. How long ago was
that ? Year before last. Were you ever tried
for that ofl'ense, I don't ask you what the charge
was? No, sir. Have you ever been convicted
at all ? No, sir. The charge was a false one ?
Yes, sir.
The Counsel for the accused said he weflld like
to cross-examine the witness on the subject just in-
troduced;
The Counsel for the prosecution said the subject
was not a new one, but one opened by the Counsel
for the accused.
The Counsel for the accused eaid he desired to
ask the witness, if the Court pleased, ia reply to
the questions asked by the prosecution, that he
had been taken up by par people upon a false accu-
sation. I desire to ask him whether he was pun-
ished; what that accusation was, and what tho
punishment.
The Commission granted the request of tho
Counsel for the accused to cross-examine the wit-
nes3 on that subject, but instructed the witness
that he was at iiberty to refuse to answer any
question that would tend to criminate himself.
Re-cross-examination by the Counsel for the ac-
cused:
What was that charge upon which you were
taken up? About some money between me and
Mr. Bunn. How were you punished ? They
didn't punish me at all. That is the only time
you have been taken up ? Yes, sir.
Re-direct examination resumed, by the Counsel
for the prosecution: *
Were you ever tried at all? Yes, sir. Be-
fore whom? Mr. Robert Awel. He is a Jus-
tice of the Peace? Yes, sir. You. were not
subjected to any punishment at all? No, sir, he
did say there was to have been
some punishment put upon me, but then
he said if I would pay it, it would be all right.
Re-cross examination resumed, by the Counsel
for the accused:
He said if you paid it it would be all right?
Yes, sir. And you did pay it? Yes, sir.
John Daley, a witness for the prosecution,
having been first duly sworn, testified as follows:
Examined by the Counsel for the prosecution:
What is your name? John Daley. Do
you go by any other name? No, sir. Are
you ever called John Tyler? I have often been
called John Tyler. Do you live in Payette-
ville? Yes, sir. What is your business ? I
am a sexton, sir. Did you bury Archy Beebee ?
Yes, sir. Who ordered you to bury him? The
Sheriff sent for me, sir. How long did you
bury him after he was kilied ? The next day,
sir. Do you remember what day you buried
him ? On twelfth day of the month, sir. The
Sheriff ordered you to do it? Yes, sir. ■ Did
the Sheriff pay you for it ? He gave me three
dollars a few days afterwards. Was it for
that? He never said, sir, he just gave me
the money. What day was it the Sheriff gave
you the three dollars ? It was the eighteenth
of the month, sir. Did you ever have any talk
with Mr. Tolar, about it, or did be ever say any-
thing to you about it ? We met one day on the
pavement Was that after the Sheriff paid
you? About a week, sir. Where was that,
iu the town of Fayettevilie ? Yes, sir. What
104
-PROCEEDINGS OF A MILITARY COMMISSION,
part oi the town ? Down near the market, be-
tween Mr. Banks and Mr. Kyles. About a
week after the Sheriff had given you the three
dollars ? Yes, sir. What occurred then ?
He said "Boy, did you bury that boy ?" I said
"Yes, sir." He said "I suppose I owe you
something?" I never said anything, and he
gave me two dollars. Was that all that passed-
between you ? He asked me if that satisfied
me. I said I was satisfied with what the Sheriff
gave me. Is that all the conversation ? That
was all we had, sir.
Cross-examination by the Counsel, for the ae-
eused:
When were you summoned in this case?
Last Monday. Who have you ever told about
this matter before you were summoned ? I
don't recollect, sir; there were several people
asked me about it. Before you were summon-
ed? Yes, sir. Who had told you about this
matter—name them. John Armstrong was one
person, sir. When was that ? He asked me
some three or four weeks ago. After John
got back from Raleigh, or before ? It was be-
Tore he come, to Raleigh. He come up and
asked you about it ? Yes, sir. He was the
first one? No, sir, he was not the first one.
He was one? He was. Who was another?
Robert Simmons asked me if I got pay for it.
How long ago did Robert Simmons ask you about
it ? I don't know, sir; it was shortly afterwards.
Before Simmons had returned from Raleigh ?
It was before he come to Raleigh. Who was
another ? She was a woman—-I don't recollect
her name—she lives around by Mrs. Welches.
A white woman or a colored woman ? A col-
ored woman, sir. That was ■ there ? Yes,
sir. Anybody else? Not that I can recollect.
So you remember having told it to these three—
John Armstrong, Robert Simmons, and a colored
woman whose name you don't know? Yes,
sir. Were* you acquainted with Capt. Tolar
before'that time ? Iliad saw him; sir; before
then. Did you have any acquaintance with
him? .'No, sir; not before that time. Tolar
had never spoken to you about this matter, had
he; before the time you speak of? No, sir;
not about that matter. Had he ever spoken
to you about any matter ? Not that I can re-
collect. Was Tolar at the funeral? No, sir;
if he was I didn't see him—I don't recollect see-
ing any white - persons there. And you were
'brought up by-the sheriff to bury him? Yes,
sir. And the sheriff paid you three dollars?
Yes, sir. What is your usual charge for bury-
ing the dead ? Three dollars is the price for dig-
ging the grave. That is all you did ? Yes,
sir. And the sheriff paid you three dollars?
Yes, sir. Did he ask you what the charge was ?
No, sir, he didn't ask|me. The sheriff didn't
tell you what he was paying you the three dollars
for? No, sir. Don't you know it was for that
service ? I know lie didn't owe me anything
else. And you say a week afterwards Tolar met
you, where? Between Banks' and Hyles, on
the pavement that goes across there. Did he
call you by name ? No, sir, he just said "boy."
Now give us the exact language of Tolar. " Boy
did you bury that boy," says I " yes, sir." Was
that the only boy you had buried? No, sir.
During that week had you buried any ? No, sir.
How long was it after the burial of Archy, that
Tolar met you ? It was a week afterwards.
It was a week after the sheriff paid you, you said?
Yes, sir. So it was some ten or twelve days
after • you buried Archy ? Yes, sir. Had
you buried any others in those ten or twelve
days? No, sir; on the day it was done I was
digging a grave. You had buried boys before
that time? Yes, sir. And Tolar just eome
up to you and said: "Boy did you bury that
boy?" Yes, sir. He didn't call the name of
the boy ? No, sir. He didn't say any thing
about the name, and you told him you'had buried
him ? Yes, sir. He didn't ask you the charge,
or ask you whether you had been paid, or ask
you any thing else ; he just paid you the two dol-
lars ? Yes, sir, he paid me two dollars. Did
he have the two dollars loose in his pocket, or
did he get it out of the pocket where there was
more money, or did he have to get it out of a
pocket book ? He got it out of a pocket book
where there was some other money. Was it a
two dollar bill ? Yes, sir. So he took it out
of his pocket book, and he had other bills there?
Yes, sir. Did you see whether he had any one
dollar bills ? No, sir, I never noticed that.
Did you see any other bills at ■ all, but that two
dollar bill ? I noticed some five dollar bills
there. Did you notice any other two dollar
bills? No, sir. You never made any demand
on him at all for pay ? No, sir, I didn't know
he had to give any to nre. He then asked you if
that satisfied you ? Yes, sir. And you told
him you were satisfied before? Yes, sir.
Whose grave was that you dug the day you bur-
ried Beebee? A child of James Mclntyres.
Where did he live ? He lived down in one of
Mrs. Utley's houses. Where is Capt. Tolar ?
He is here. Point him out? There he is
with specks on.
Re-direct examination by the Counsel for the
prosecution:
How many times had you Seen Capt. Tolar, in
your life, before be paid you that two dollars ? I
could not tell, sir, I saw him numbers of times.
And you knew that man who was called Capt. To-
lar? knew who was called Mr. Tolar. And
that is the man who paid you the two dollars ?
Yes, sir. No sort of doubt about that? No,
sir, that is the man. Did he have on his specta-
cles that day? I disrecollect whether he had on.
his specks or not. Mr. Fuller asked you if you
didn't understand that that three dollars the Sher-
iff paid you. was paid you for burying the body ?
That is what I thought that day. Didn't you
understand that the two dollars paid you by Tolar
was for burying the same body ? Yes, sir. Now,
this child you were digging the grave of the day
before, was it a boy child or a girl child ? It was
a boy child. How big a grave was it ? The
child was about three years old. And vOtt say
you didn't dig any other grave between the time
you digged Beebee's grave, and the time you saw
Capt. Tolar and he gave you the money? No,
sir. No other grave? No, sir. Let me
have that conversation again that you had that
day with Capt. Tolar; you met him ou
this little side walk, and he said "Boy, .did you
bury that boy," is that it? . Yes, sir. And
you told him what? I told him I did. Then
what did he say ? I suppose I owe you some-
thing. What did you say ? I never said
"Yes, sir," and I never said "No, sir." Did he
have his pocket book in his hand? No, sir.
He took it out before he gave you the money ?
Yes, sir, and he gave me a, two dollar bill, and
asked me, "does that, satisfy you," and I said, " I
was satisfied with what the sheriff gave me,' and
he said " Did the sheriff give you some ?" and he
walked on. Is that all? Yes. sir. So, I
understand that he knew the sheriff had paid you ;
you were not trying to cheat him? No, sir, I
didn't know anything about getting any from
him. You saw him have other money in his
purse? Yes, sir. Was there anything pecu-
liar about this two dollar bill? Nothing, only
one end of it was split, sir. You say you have
CONVENED AT RALEIGH, NORTH CAROLINA.
105
told certain persons about this conversation you
had with Tolar. Yes, sir. They asked me did
I get paid for it. Did you get pay for burying
Beebee, is that what they asked vou ? Yes, sir.
What did you tell them? Yes. Did they
ask you who paid you? Yes, sir. Rob-
ert Simmons asked me who paid me, and I
told him the sheriff had given me some m®-
ney, and Mr. Tolar had given me some money.
Did you tell John Armstrong the same thing?
Yes, sir. And this woman? Yes, sir.
Do you remember you ever told it to others that
you can recollect ? I have told it to some per-
sons else, but I don't recollect who. Have you
ever told it to any white people that you remem-
ber ? No, sir, not that I recollect. You don't
remember having mentioned it to any white man
at all? No, sir. There were some white gen-
tlemen standing near at the time Bob Simmons
axed me. Who were they ? One was named
Mr. Newel, but I don't know any more about the
name than that. He was standing near when
you told Simmons ? Yes, sir. Do you know
who had you summoned here ? No, sir.
On motion, the Commission adjourned to meet
on Saturday, the 10th inst., at 11 A. M.
Raleigh, N. C., August 10, 1867—11 A. M.
The Commission met pursuant to adjournment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the prosecu-
tion, all the accused and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and ap-
proved. ,
The Judge Advocate said: " I am requested by
the Commission to state that the order for the
summons of eighteen witnesses, the list of which
I hold in my hand, to be summoned for the de-
fence, will be granted, if the Counsel for the de-
fence state that these witnesses are each and all of
them necessary and material to the defence, and
that list includes all the witnesses the defence now
intends to summon; that should the defence here-
after require other witnesses, the Commission
will require the defence to state what necessary
and material fact it is intended to prove by the
witnesses, which may be hereafter required."
The Counsel for the accused: " I will state to
the Court that the witnesses, whose names are
upon the list that the Judge Advocate holds in
his hands, I am informed, and I believe are neces-
sary and material, each and every one of them.
The most of them I have seen myself, and I know
they ate necessary and material, and the others
are furnished me by my associate Counsel, resi-
dent in the town of Fayetteville, and, upon his
information, I state to the Court that I believe
they arc necessary and material.
They are all the witnesses that, at this time, We
think will be required. It may be necessary,
however, hereafter, to ask for the summoning of
other witnesses, and it so we have no objection at
all to set forth, in an affidavit, that they are ma-
terial, and the grounds of their materiality."
The Commission thereupon ordered the issuing
of the summons for the witnesses for the defence.
Rachel Lord, a witness for the prosectltion,
having been first duly sworn, testified as follows:
Examined by the Counsel for the prosecution:
What is your name? Rachel. Rachel what?
Rachel Lord. Where have you been living for
the last two or three years ? In Fayetteville; I
have lived there all my life. Did y6u see Archy
Beebee the day he was killed ? Yes,' sir. What
time did you go to the market house that day?
About three o'clock, or half after, or such a mat-
ter. Did you go there before Archy was brought
out of the guard house ? He was up stairs when
I got there. When you got there where did
you go to; which end did you come up to first?
I come up on Green street, and come up to the
north corner, towards Mr. Fishblates'. That
is the north east corner? Yes, sir. Did
you stand there ? I stood there a few minutes.
Now while you were standing there, was Archy
up stairs ? Yes, sir. Did you see any crowd
around the market house ? Yes, sir. Much
of a crowd ? Yes, sir. How many people do
you think were there? I don't know, sir.
What is your opinion; do you think there were
a hundred? Yes, I reckon so. Two hundred?
I reckon there was, before it was done with.
Was it larger before it was done with than it was
when you first got there ? Yes, sir ; they kept
gathering. How long did you stand about that
north east corner? 1 don't know, sir. Five
minutest About half an hour, I reckon.
Archy was up stairs all the time ? Yes, sir.
While you were standing there, did you see insic' e
of the market housed Yes, sir. And outside
along the pavement. Yes, sir. Did you see
anybody there you knew? I don't know, sir;
I don't recollect—it has been a right smart while;
I saw Monk, and he is the only one I recollect.
What made you notice Monk; what was he do-
ing ? He was cutting there with his knife, and
I was afraid—that is what's the matter; and I
stood there and looked on a few minutes. What
was he doing with the knife ? He was cutting.
Cutting what ? I don't know sir, what he was
cutting. Was he whittling ? Yes, sir. Was
he saying anything? I hear him say he was
going to cut a damned nigger's throat. That
was while you were standing at the north east
corner? Yes, sir. You are certain about
that? Yes, sir. Did you notice anybody
else in that crowd tl\at you knew/ I saw Sam.
Hall and Ed. Powers skeeting about. While
Archy was up stairs? Yes, sir. And you
were standing at the corner? Yes, sir. What
do you mean by skeeting about ? I mean run-
ing around, and through the market house, and
whispering to each other—I don't know what
they were saying. You mean they were run-
ning about actively in the crowd/ Yes, sir;
gay and lively, all through the market house.
Those were Ed. Powers and Sam. Hall? Yes,
sir. Did you see any one else ? I don't
know, sir; I don't recollect who I did see.
Think if you can recollect any body at all ? No,
sir. Have you thought about these things since
you have been summoned? Yes, sir; I have
studied about it. But in all your studying, you
don't recollect but these persons? No, sir;
I don't. Were you standing at that north east
corner when Archy came down stairs? No,
sir. How long had you moved away from there
before he came down? I was standing there
when he started down, I moved a little further
back, so that I could see better. Just before
he came down did you see these ladies that came
down and went to the carriage? Yes, sir.
Did you know them ? No, sir, 1 knew their
names. I saw Miss Massey. Did you see the
carriage ? I saw the carriage standing there
when I went there. How far was it from you ?
About as far as that young gentleman (thirty
feet.) Who went with the ladies to the car-
riage? I don't know, sir. Did you see any-
body go with them ? Yes, sir. • You don't
know who it was ? No, sir. I saw Maults by.
Did he go with them to the carriage? No, 6ir,
he went there after they got in. There was an-
other man went with them, Mr. Vann, 1 reckon
his name was. Don't you know? No, sir.
What makes you think it was Mr. Yann? I
106
PROCEEDING S OP A MILITARY COMMISSION,
heard some say that was his name, I would know
the man if I was to see him, I knew his face.
* When was it you heard some one say that was
his name ? I don't know, sir, but I have heard
several times that was his name. Since you
eamehere? Yes,sir. You diffsee Maults-
by go to the carriage, was that after the ladies
got in ? Yes, sir. What did he have to do ?
He went there and said something to them.
Did he speak to the ladies or Mr. Vaun ? He
was whispering to the ladies,. I think. Did you
see any one else go to the carriage? I don't
recollect any one else. You don't know that
any one else did go ? No, sir. You saw the
carriage drive off? Yes, sir. Did the boy
come down after that ? Yes, sir. Directly
after? Yes, sir, pretty soon after. How
long ? About five minutes. As he started
down you moved away? Yes, sir, I did.
You moved away so as to get a better sight ot
him, as he came down the steps ? Yes, sir.
You moved further to the east front ? Yes, sir.
What happened then, what did you see that at-
traeted your attention ? X saw the crowd ma-
king a rush at Archy, and Archy told Mr. Har-
die "Do, don't take me down stairs," and I
turned my back and ran and hid behind a box at
Mr. Taylor's. When was that rush made at
him, that you speak of? That was just before
he spoke. Was that rush made at him before
he got down the stairs ? Yes,, sir, he seemed
to be four or five steps from, the floor, then.
And it was then the rush was made, and you
heard this exclamation of his, "Do don't take
me down there?" Yes, sir. You say you ran
then ? Yes, sir. Where did you run to ? I
ran to Mr. Taylor's store, and hid behind a box
in front of his store, How far off was that
from the market house ? About as far as from
here to that corner (about forty feet) may be a
little farther. You ran over to Mr. Taylor's
and hid behind a good's box? Yes, sir.
What happened then? I stayed down there
until I heard some one cry out "shoot him,"
shoot him!" and I heard them say clear the way,
and I expeeted I would see him relieved and go
to the guard house, and then Isaw that gentleman
(Tolar) draw his arm up or his hand and shoot.
You heard the cry " shoot him, shoot him," and
you heard a cry of clear the way, and you thought
he would get safe, and you unmasked and
had a good look at him, and saw what was go-
ingon? Yes, sir. And you sawsome gentleman
shoot him ? Yes, sir. Did you see the gen-
tleman who shot him ? Yes, sir, I saw from his
shoulders up. I didn't know his name, I had seen
his face often. You saw the pistol in this man's
hand that you speak of ? I saw him shoot, I
eould not tell what kind of a pistol it was. Could
you tell whether it was a pistol at all ? I am
"certain it was a pistol. You know it was not a
gun ? I am certain it was a pistol. You saw
well enough to see it was a pistol, but what sort of
a pistol you cannot say? No, sir, How was
the man dressed who frred the pistol ? It looked
to me he had on a gray coat, but some of them
said it was a shawl, X could not tell which it was
Your impression was what ? I thought it was
a coat, but it was a shawl. How do you know /
Them that were near said so. What did you
think? I thought it was a coat, but I didn't
notice muchI was looking at the pistol and the
aim. Your impression was that the man had on
a gray coat ? He had on a gray suit of some
kind, I don't know what it wss. Did you see
any part of him besides his arm ? From his
shoulders up. Did you see what kind of a hat
he had on ? I don't recollect, I saw the man
shoot for certain. Did you see what beeaiae of
the man after he shot ? I never looked any
more, I went right straight home. As soon as
the pistol fired, you turned and left ? Yes, sir.
Have vou ever seen that man since who fired the
pistol? No, sir, I never seen him there since.
I seen him pass out here once or twice. Do you
see him in the court ? I think that is him sit-
ting right over there. Which one do you mean,
can't you see anything peculiar about him that
you can tell ? It looks as if he had something
the matter with his eye. With a moustache?
Yes, sir. That is the man you think fired the
pistol? Yes, sir. And yon went off imuiedi-
ately after that ? Yes, sir! Was his back to
you when he fired? When he fired he was kind
of sideways from me.
Cross-examination by the Counsel for the ac-
cased.
Rachel, where bad you been up Green street,
when you-came down to the market house? I
had been over to Mr. Anderson's store. Your
sister Ann was along with you ? I haven't got
any sister Ann. What is your sister'sname that
was with you ? I had no sister with me, my sis-
ters were all at home. Who was with you?
There was nobody with me in particular; thei'e
was some there, but they were not with me. I
am talking about when you came from Mr. Ander-
son's to the market house. There was nobody
with me. I come alone, I had a bundle. And
you were alone? Yes, sir. You were not
coming from a funeral that evening! No, sir, I
was not. Have you any sisters at all ? Yes,
sir, I have. How many? I have got six. I
don't want but one, have you- got one that is liv-
ing with Mr. John Davis? Yes, sir. What
is her name ? Her name is Fanny. She was liv-
ing with him when I come up here. Now, Ra-
chel, I will ask you if that sister Fanny was not
with you that evening?. No, sir. I will ask
you if your sister Fanny did not tell you just be-
fore you came up here, that you knew nothing
about this matter ? No, she did not, and no-
body else didn't tell me so. And you told your
sister Fanny, "well, I don't know anything about
it, butT can't get more at home than I can make
up in Raleigh as a witness in this case" ? No,
sir. 1 didn't tell no such a thing. I never said a
word of it to any one. There ain't three men nor
women in town that knows I know anything about
it. You say you didn't tell your sister Fanny/
ho, sir, I didn't tell nobody so. And you came
and took your stand at that north-east corner,—
were you standiug ort the pavement, or off?
I was standing on the pavement right at the cor-
ner, right opposite Mr. Taylor's where there was
a gooffs box. I am talking about when you-
first got there ? I stood right at the corner then.
Outside or inside ? Outside. Were you close
up against the corner ? I was on the edge of
the pavement, On the outer edge of the pave-
ment? Yes, sir. So you were on the outer
edge of the pavement, at the north east corner of
the market house ? Yes, sir. And you were
there how long before Archy was brought down/
I don't know, sir; about a half an hour, or a
quarter, or sueh a matter; I don't recollect any-
thing about the minutes and the hours, but I
know I was there. You know you were there ?
Yes, sir. No doubt about that? No doubt
about that—I am certain about that. Then
before Archy came down,, you say you saw Monk ?
Well I did. Monk was walking about with a
knife in his hand ? Yes, sir. Cutting a stick ?
I dont know what he was cutting—I didn't notice
what he was cutting. He was cutting some-
thing? Yes, sir. Why was your attention
attracted to Monk ; haven't you often seen a man
going about cutting a stick ? Yes; but then I
COls VEXED AT RALEIGH, KOKTil CAROLINA.
10-7
•never hardly ever go to the market house and see
such a crowd, and I noticed him because there
was such a crowd. What was it that attracted
your attention to Monk at that time? I heard
Monk say he was going to ' cut a damned niggers'
throat," or something to that amount. Tou
heard him say that a half an hour before Archy
came down 6tairs ? I don't know how long
before he came down. Who>did he say that to ?
I don't know, sir. How far was he off irom
you ? He passed by me about three.feet, twice.
And both times he said I am going to cut a
damned nigger's throat? He didn't say it
both times—he said that the first time.; I don't
know what he said the last time. Where was
Monk then, outside the market house, or under ?
Ho was outside. YouknowMonk well ? Yes,
sir; X knew him well. How long had you been
knowing Monk ? I had been knowing Monk a
good while. How come you to know Monk so
well ? I have seen him often enough—I stayed
down at Camelton, a while, and Monk used to
pass [there pretty regularly two "or three times a
day|; Monk was small when I first knew him—
weusedtoplay together. You say while you
were standing.there you saw Sam. Hall and Ed.
Powers? Yes, sir. Where were they " skeet-
ing about"? Outside and under through the
market house, and all around it. You say they
were gay and lively ? Yes, sir. Laughing
and talking ? Yes, sir. Are you sure they were
laughing and talking? Yes, sir; but I could
not tell what they were saying. Did you hear
them laugh any ? Yes, sir. How long have
y ou known Sam. Hall ? I have known Sam.
Hall from a small boy. How came you to know
Sam. so well ? I have played with Sam. when he
was a small boy; 1 don't suppose he knows it now;
but I haven't forgotten it. You haven't played
with him since you have been grown ? No, sir.
And Ed Powers, do you know him? Yes, sir,
we were all playmates together. And you
know them well ? Yes, sir. Dfd you see them
have any knives or any weapons of any kind?
No, sir. Was there anything that they did, or
anything that they said that called your attention
to them particularly ? No, sir. Nothing at
nil? I didn't see it nor hear it. Well, you
stayed out there awhile, and you saw them
bring Archy down, and then yon moved your po-
6ition? Yes, sir. Where did you go then?
1 went right across to Mr. Taylor's store. I am
speaking now of when you first moved your po-
sition, lor the purpose of seeing A.rchy? I
moved back a few steps from the pavement.
When you got there you could see the steps
pretty well ? Yes, sir. Which arch did
you see through, the big arch or the little arch ?
The big middle arch. .So you 'moved off the
pavement so that you could 6ee -up the steps ?
Yes, sir. You saw Archy as soon as he got
down to the landing place? 'It .looked to me
like it was five steps or so from 'the floor. The
crowd was so-thick I could not see exactly. It
was thick at the foot of the steps ? Yes, sir.
Archy was up there coming down the steps, and
at that time the crowd was very thick at the foot
of the steps. Inside of Becky Ben's stall?
Yes, sir. Thick as they could be? Yes, sir,
I don't think they could be any thicker. Work-
ing about considerably or standing still ? Some
of them were working and some standing still,
some talking and some hollering, I'don't know
what they were not doing. When you first
saw Archy, who wa3 with him? Mr. Wemyss
for one, and Mr. Hardie for another, and I don't
know any other one that was in the crowd.
Where was Mr. Wemyss? Mr. Wemyss was at
the right of Archy, he looked .to me as if he hacl
his hand in his collar; he might not, but it look-
ed to me he had. He either had his hand in
his collar or on his coat, either one or the other ?
Yes, sir. You could see that pretty plainly ?
Yes, sir. Had a good position to see through
the main arch? Yes, sir. Which hand was
it Mr. Wemyss had there on his collar? I
don't know whether it was the right hand or
left. Mr. Hardie, where was he ? He was
to the left. Did you notice whether he had his
hand;in his collar ? It looked to me .as if he
had him by the back of his neck. You are cer-
.tain Sheriff Hardie had hold of him by the back
of his neck? I don't know exactly he might
not. You know Mr.- Wemyss pretty well?
Yes, sir. You have been knowing the old gen-
tleman a good deal? Yes, sir, I lived joining
him eight months. And you know Mr. Har-
die pretty well? Yes, sty. You have known
him a long time? Yes, sir. And you are
certain of course that they were both there ? Yes,
sir. You think Mr. Hardie had him in the col-
lar in the back ? Yes, sir, I think he had.
Could you tell from where you were standing
whether he had him inside of the collar or just
hold by the coat ? I don't know, I didn't look
as close as that. Could you tell whether he had
him by.the coat, or just had his hand on the shoul-
der ? I don't know, sir: I know he had him some-
where. Do you recollect which hand it was ? No.
sir, Idon't know that neither. About that time
Archy saw the crowd out there, and he began to
shrink back, and he said, "don't carry me down
there" ? He said, " Oh 1 do, don't take me
down there." And he commenced jerking back?
Yes, sir. Now refresh your recollection. Don't
you recollect this, that Wemyss had him by the
shoulder, and he jerked him forward? I recol-
lect some one jerked him, but I didn't see who it
was, You don't recollect whether it was We-
myss or Hardie ? No. sir. It was one of
them? Yes,sir. Well, they came on that
way down stairs? Yes, sir. Poor
fellow; they jerked him right down, although
he didn't want to go down? I ran off
when I heard him say that. I could not say
whether they jerked him down or not. After he
said that to Hardie, I turned and ran. You ran
straight across to Mr. Phil. Taylor's store ? Yes,
sir. That is on the same corner. Yes, sir.
And as soon as you ran there, you crouch»ddown
behind a good's box? Yes, sir. Was it next
to the pavement, or next to the door? It was
right agin two trees that are standing there.
You kneeled down there, and that -shut out your
view completely from the market house ? Yes,
sir, I didn't see anything at all while I was down
there. Idon't know what passed. How long
had you been there before something else attracted
your attention? Idon't "know, sir: it might
have been about five or ten minutes, and not ion-
ger. Eive or ten minutes? Yes, sir. Did
anybody pass you, while you were there ? I
never raiscd-up,to see what was going on. Did
you put your handkerchief over year head? No.,
sir, I had a bonnet on, and pulled it over my head,
and put my head down against the box. You
don't know-whether anybody saw you kneeling
dawn or not? No, sir, I aon't know. And
you kneeled down there a short time, and then
something attracted your attention in the crowd.;
what was that? When I beard them say "shoot
Hum, shoot him," I didn't raise right then, but
when I heard them say, " clear the way," I rais-
ed up, and I thought I'would see him get clear,
and go to the market house. When you got up,
you stood behiid the box still ? No, sir, I sort
of moved out; I was following the -crowd to ths
108
PROCEEDINGS OP A MILITARY COMMISSION,
guard house, but he was shot and killed. Which
way did you move ? I moved right straight across
up towards the market house. As if you were
just going across the street? Yes, sir. So
you could see ? Yes, sir. Did you see who
that was that cried out, "shoot him" ? No, sir,
I don't know who it was. When you looked
over there, what was the first thing that occurred?
The first thing I saw when I looked over there, I
saw that gentleman (pointing to Tolar) throw his
arm up. You didn't see Archy when you look
ed over there ? I saw Archy's head, Archy was
pretty tall. How far had Archy got when you
saw him ? I don't know, sir. Had he passed
the arbh ? Yes, sir, he had passed the arch, and
got agin a little tree; I think he was opposite the
corner. The south-east corner? Yes, sir.
Which way was his face turned ? Towards
the South. Towards the guard house ?
Yes, sir. How did you know it was Archy
if you just saw the back of his head ? I know
Archy very well; X would know him any where
if I could see him; I would know him if I could
see him a quarter of a mile. What sort of a hat
did he have on ? 1 think he had on a black hat,
a rough and ready hat. Don't you recollect it
was a white rough and ready hat ? No, sir.
Don't you recollect it was a cap he had on ? I
don't recollect ever seeing him with a white hat
or a cap on. Do you recollect that he had on,
any hat that day ? 1 think he had on a hat, a
black rough and ready hat, I think he had, but
wont say Tor certain, because it has been a right
good while since that, and I don't recollect all
that I saw there. Who was with Archy at that
time ? Mr. Wemyss had hold of him then when
he was shot. Mr. Hardie and Mr. Wemyss both
had hold of him; I could not say who the rest were.
Now, at that time, where did Mr. Wemyss have
hold of him? Mr. Wemyss was on the right
side. And Mr. Hardie on the left side ? No,
sir, I think they were both on one side. Mr.
Hardie in front and Mr. Wemyss behind? It
looked to me he was in front. Did you see Mr.
Hardy at that time with his hand hold of Archy's
comforter around Archy's neck? I didn't
notice who it was had hold of Archy's comforter.
You saw a hand on Archy's comforter ? Yes,
sir, 1 don't recollect who it was. It was either
Mr. Hardie or Mr. Wemyss hand on Archy's com-
forter ? I reckon it was, sir. He was in front ?
Yes, sir. Now, did he have him close up to the
throat or did he have him by the ends of the com-
forter ? He didn't have him by the ends of the
comforter; I think they were tucked up. You
could see it, you think the ends were tucked up ?
I think so, sir, it looked as if he had hold of the
comforter right about his breast. I know you
want to tell the truth about this matter, see if you
can recollect whether it was Mr. Hardie or Mr.
Wemyss that had him in fiont? I can't reeol-
lect; it aint no use to waste time to tell about it;
it was one. It was one, but you don't recollect
who it was ? No, sir. About that time you
say Archy had got almost down to the corner ?
He had got near about opposite the corner. And
you were standing there not far from Phil. Tay-
lor's store ? Yes, sir, and Archy just had one
foot off the pavement. Which foot? The left
foot. Did he have on boots or shoes? I don't
recollect; I didn't come to look that close. But
don't you recollect that you saw him at that time
with his boots outside of his pantaloons, can't
you recollect that? I don't know, I didn't see
whether he had boots or not; he may have been
bare footed, for all I can rcollect. He had his
left foot off the pavement? Yes, sir. He
was pretty near the edge of the pavement, wasn't
he? Yes, sir. Well, at that time you say
somebody commenced to cry out " shoot him ?"
I said, " clear the way." Who was that? I
don't know, sir. Was it the same man that
shot him? I don't reckon it was. You don't
know who it was ? There was a big crowd
there, and I was off a little ways; I don't know
who was in the crowd; but I aint going to say it
was this one or that one, ortother one, for I don't
know. There were a good many people be-
tween you and that place, you say? Yes, sir.
Where did this man come from who shot him ?
I didn't know, sir. Where did you see him ?
He was partly in the crowd. Was he on the
pavement, or off the pavement ? It looked
to me as if he was on the pavement. Was
he walking out, or was he standing still ? It
looked to me as if he was pulling back. You
mean the man who shot was pulling back ? It
looked to me he was pulling back to shoot.
How did he stand, with his shoulder thrown
back ? The crowd was so thick I could not
exactly see. Don't you know he was lean-
ing over towards him? I don't think he
was. You think he throwed himself hack?
If he leaned over I don't think I could have
seen him. You only saw a portion of him—
from about his shoulders up ? Yes, sir, if I
hadn't been looking I would not have seen
that much, there was such a crowd there. He
ran up, or was he standing there leaning back ?
I' don't know whether he ran or walked.
Where did he get the pistol from, did you Bee
that? No, sir. You didn't see him get
the pistol out of his pocket ? No, sir. You
saw he just had the pistol up, and presenting
it? I saw him throw his arm up twice.
Which arm ? I don't know which arm it
was; I am not certain which arm it was. See
if you can't recollect ? No, sir, it ain't no
use. You put yourself in the position you
were in that day, on the man's left, and he
upon your right; and you saw the pistol. You
know you could not have seen his right arm ?
I don't know whether I could or not. Was
it the man next to you ? I don't know; I
know it was" his arm. . You didn't notice
which arm ? I was noticing the pistol, and,
of course, I saw the arm, but don't know which
one. You say you don't know what port of
a pistol it was ? No, sir, and I dont know.
Now, at the time the man shot, that was the
first time you had seen him ? That was the
first time I had noticed him. At the time
he raised his arm to fire, which way was he
looking? He was looking towards Archy.
You didn't see his face, did you? No, sir,
I just saw one side of him; if I hadn't known
him before, I would not have known him that
day, but I had seen him so often I knew the
side of his face. The left side was presented
to you? Yes, sir. Don't you know that
at that time he was a long ways off the pave-
ment? No, sir, I don't know it sir. Don't
you know he was right at the edge of the pave-
ment ? I don't know how near he was to
the edge of the pavement; I didn't notice any-
thing but the pistol and the shooting. Now,
see if you can't recollect ? No, sir, I can't.
This is something else, I want you to recollect
now ? No, sir. You cant recollect it ?
No, sir. That is strange, you cant recollect
whether he was close op to the market house,
CONVENED AT RALEIGH, NORTH CAROLINA.
109
or whether he was about the middle of the
pavement at the time? No, sir, I never
looked close enough. Was he down toward
Mr. Davis'store ? I can't tell. You can't
tell anything about it ? No, sir. What
did the man do after he shot ? I saw the
man throw his arm back; I don't know what
he done with the pistol. Which arm was
that he threw back ? I saw him throw his
arm back; I don't know which arm it was; I
saw his arm up, and I saw it go back; I didn't
see anything more of it after that. Was
that the arm nearest you, or the arm further-
est off ? I don't recollect, sir. You don't
recollect anything about that ? No, sir, I
don't say anything more than I know. Well,
Rachel, who else did you see there that day ?
I don't know sir, I saw a great many. Did
you see anything of Ed. Powers, or Sam. Hall,
at that time ? If I did, I don't recollect it
now. See if you can't recollect something
about it? No, sir, I can't. Didn't you
see something of Monk at that time ? After
the shooting, I saw Mr. ."Nixon take hold of
Monk and lead him down towards Mr. Taylor's
store; he brushed up against me twice. That
was the time he brushed against you it was not
before the shooting ? He brushed against me
twice before, and twice after; I know he
brushed me once before, and I think twice,
and I know he brushed against me twice after-
wards. Monk was brushing you pretty con-
siderably that day ? Yes, sir, he was. How
came he to be brushing you so much that day ?
I don't know, sir, he went up against me;
I don't know how often he did;
I was standing close up to him
Was there any man who was in that crowd that
day, whose name you can tell, except the names
of Monk, or Sam.Hall, or Ed. Powers? No,
sir. From first to last, you don't recollect see-
iDg anybody else ? I don't recollect who I did
see ; it has been a right good while. And you
say directly after the shooting, that you started
oil'and ran away? Yes, sir, I went right straight
on towards heme. Where do you live ? I
forget the name of the street. I live in the street
down from the market house ; I come out in the
morning, and look at the market house to tell what
time it is; I live in Mr. Webster's house; grand-
mother and I stay in the kitchen, and Mr. Web-
Bter stays in the rest of the house.
Re-direct examination, by the Counsel for the
prosecution.
Rachel, do you say that Beebee had on a hat
that day? I think he had, I don't exactly rec-
ollect, but I am pretty certain he had on a hat.
Hid you see that hat at the time the pistol went
off? No, sir. Was his hat on his head when
the pistol fired ? I don't know, sir. I don't
recollect exactly about that. When was it yon
saw his hat on fiis head ? I saw it when he was
coming down the steps. You say when he came
clown the steps, that hat he had on his head was
a black hat? Yes, sir. Do you recollect see-
ing it on his head any more after that ? I don't
believe I did. You don't think you saw him
with a hat on his head, except when ne was on the
stairs? No, sir. Now about that comforter,
when did you see that ? I saw that when he
was coming down stairs, and I saw he had it on
alter he was shot. But at the time he was shot,
could you see him well enough to see it? No,
sir. So the conclusion you came to that he had
it on when he was shot, was formed before and ,
after? Yes, sir. You could not see Archy
very well at the moment he was shot? No, sir.
Diu you say there was a big crowd around him ?
Yes, sir. And you were some forty or fifty teet
off? I reckon about that. And there was a
crowd between you? Yes, sir. How did
you see his left foot? Well, sir, when they said
"clear the way," the crowd sort of thinned out,
and I saw Archy make one step off. Are you cer-
tain you could tell Archv's foot, as he stepped off
through the crowd? Yes, sir. You noticed
him step off the pavement with his left foot? Yes,
sir; he fell that way, too. It was likely his left
foot was off' when he fell, but I want to know
whether you could see his left foot, whether you
can state positively that Archy had his left foot
off, at the time he was shot, and you could see
him at that time? When they halloed "clear
the way," I could see him plain enough. I
think you said the reason why you could see
Archy so plain was because he was a tall man?
Yes, sir, he was. You could have seen a short
man, if you could see his foot on the ground ?
When they hollored "clear the way," I could.
You think'he fell with one foot off the pavement;
do you think that foot was off' the pavement be-
fore he fell? Yes, sir, I guess it must have
been. That is your opinion, is it? Yes, sir.
You say you haven't talked with anybody about
tois ? No, sir, you can't find them people to
tell you I talked with them. Were you ever
examined on oath before? No. sir. Who did
you see in that crowd after Archy was shot that
you knew? 1 don't know, sir. I don't recol-
lect seeing anybody, then ; I went on home. I had
a bundle ; and I come back again, but I don't rec-
ollect seeing anybody in the crowd, for I d.dn't
stop long enough to see who I did know. The
only persons you recollect seeing in that crowd the
whole, time you were there from first to last, were
Sam Hal), Ed. Powers, Monk, and the gentleman
who shot the pistol, and Archy and Mr. Wemyss and
Mr. Hardie ? Yes, sir, they are ail I recollect.
Did you see distinctly when Archy said "do, don't
take me down there," that Mr. Wemyss jerked
him forward ? I said it looked to me like some-
body did. You could see that he had hold of
him? Yes, sir. Are you certain you saw
Archy that day ? Yes, sir, I saw him when he
come down stairs.
The Judge Advocate stated to the Commission
that there were no witnesses who could be exam-
ined at present. He had sent summonses as long
ago as last week, for witnesses to appear the day
before yesterday, but they had not yet appeared.
Whereupon, on motion, the Commission ad-
journed to meet on Monday, the 12th instant, at
11 A. M.
Raleigh, N. C., Aug. 12th, 1867,11 A. M.
The Commission met pursuant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
The reading of the testimony taken on Satur-
day the 10th inst., was waived, there being no ob-
jecfion thereto.
Yesterday's proceedings were then read and
approved.
David Oliphant, a witness for the prosecu-
tion, having been first duly sworn, testified as fol-
lows: ,
Examined by the Counsel foi the prosecution.
What is your name ? David Oliphant.
Where do you live ? In Fayetteville. You
have been suffering with sickness for the last few
days? Yes, sir. Feel unwell to-day?
Yes, sir. What is the disease you are complain-
110
PROCEEDINGS OP A MILITARY COMMISSION,
Ing of? Chills and fever. Have you had any
chills to day? No, sir. Have one yesterday ?
Yes, sir. Day before yesterday.? Yes, sir.
You live in Fayetteville/ Yes, sir. Were
.you living there the day Arcky Beebee was kill-
ed ? Yes, sir. Remember what day of the
week it was? I don't recollect. What time
did you go up to the market house that day ? I
can't toil exactly. Was it before dinner or af-
ter? _ It was after dinner. Before sunset ?
Yes, sir. Had Archy been brought up from the
guard house when you got up there. They
were just' bringing him from the guard house.
Were you standing inside of the market house?
Yes, sir. Could you see the door ©f the guard
house, from where you were standing inside of
the market house ? Yes, sir. Who came up
along with Archy from the guard house to the
•market house ? I think Mr. Wemyss, Mr.
Hornrinde, and Mr. Brown. Any one else ?
Not that I can recollect. Were there others
with him that you can recollect? Mr. Fair-
cloth, I think was with him. Was there any
crowd at the market house when you got there ?
A pretty good crowd. How many do you sup-
pose ? I reckon about a hundred. When
you first got there ? Yes, sir. Where were
they standing ? Under the market house and
some outside. Was Archy carried .up stairs ?
Yes, sir. How lorg did he remain up there ?
About an hour, I reckon. Were you down un-
•der the market house all the while he was up
stairs/ Yes, sir. Sitting or standing? Both.
Who did you see in the crowd that you knew,
■while Archy was up stairs? I saw Mr. Sam.
Phillips and Mr. Tolar. Mr. J. W. Tolar?
Yes, sir ; and 1 saw Mr. Watkins and Mr. Powers.
Which Powers? Tom Powers. Any one
else? Mr. Leggett. Didyou see Jim Nixon?
Yes, sir. Did you see Ed. Powers or Sam. Hall
or Ralph Lutterloh 7 I don't recollect seeing
<them. You saw Phillips and Tolar, and Tom
Powers and Monk? Yes, sir. Where was
'Tolar standing while the negro was up stairs ?
He was standing right there at Becky Ben's stall.
Who was standing near him? Mr. Leggett,
was standing pretty near him. Were they
conversing together? I think they were.
Was he the nearest man to him to your best re-
collection? Yes, sir. Did you see any weap-
on about Mr. Tolar at that time 7 Well, I
don't know for certain whether it was a pistol he
had or not, but J. think it was a pistol under his
coat. You saw something under his coat?
Yes, sir. Underwhicliside? The leftside.
The protuberance was on the leftside? Yes,
sir. Where was Tom Powers ? He was by
an old white woman's stall, that sells cakes un-
•dor the market house. What is her name ? I
don't know, sir, what her name is. Is it the
"opposite side of the market house from Becky
Ben's? No, sir, on the same side. Did you
remain there until Archy came down inside of
the market house ? Yes, sir. Did Mr. Tolar
remain there until Archy came down ? Yes,
sir. How was ii with the rest—with Tom Pow-
ers ? He remained there too. He didn't go
away at all ? He went down the street before
Beebee came down the stairs, and then he come
back. How long was he absent ? I can't tell
how long it was, fifteen minutes, I suppose. He
went away for a short time while Beebee was up
stairs, and.returned ? Yes, sir. Did he re-
turn to the same place where he was before?
Yes, sir. Did you see Monk while the man was
upstairs? Yes, sir. What was he doing?
He was not doing anything. Did you see him
whittling? I didn't see him whittling, I saw
him have a knife, in his hand, I believe he was ,
trimming his finger nails. Did you hear him
say anything? No, sir. Did you hear Tom
Powers say anything while Archy was up stairs,
about the offence he was charged with ? I heard
him say he thought it was a shame the way the
young lady was treated. Is that about all ?
Yes, sir. Did you hear that while Archy was
up stairs ? Yes, sir. Did you hear Tolar say
anything about it ? I heard him say if that
was let go on, it would go en again. Was that
while Archy was up stairs ? Yes, sir. Was
he talking to any one in particular, or to the
crowd ? To the crowd, I believe, that was around
there. Was there any excitement in that crowd,
any expressions of anger or disgust at what had ta-
ken place? No, sir. Y\ as the crowd perfect-
ly 'quiet? Yes, sir. No talking about?
They were talking first to one and then to anoth-
er- I didn't know what they were talking about.
What is Miss Massey's name ? Sis Massey,
they call her. Did.you see her that day when
she came down stairs? Yes, sir. Who was
with her ? Mr. Bond was with her. Did she
come down before Archy? Yes, sir. Was
her mother along? Yes, sir. What became
of them when they came down stairs ? They
went to the carriage. Where was the carriage ?
Out in front of the market house. Some dist-
•ance from the pavement ? About ten or fifteen
feet, I reckon. Did you go out of the market
house when they went to the carriage ? Yes, sir,
I went out to the carriage, too. Mr. Bond you
say handed the ladies into the carriage ? Yes, sir.
Did any one else go out there to speak to them?
Mr. Owens went out there, believe. Ain't
you certain about that? Yes, sir, I am cer-
tain. Did any one call for Mr. Powers, that
you know of ? I think his sister called for
him. You were standing out there, how
close were you to the carriage when Powers
went up V I was not more than three feet, I
reckon. He went up and spoke with his sis-
ter? Yes, sir. Did you hear any of the
conversation ? I heard Mrs. Massey to say
for Tom not to have anything to do with it.
Did you hear his reply ? I don't think he
said anything at all.' Did you hear what Mr.
Maultsby had to say ? No, sir. Was he
speaking to the ladies or Mr. Bond ? To the
ladies. Did you see him speak to Bond, at
all ? No, sir. Did you see any one else
go to the carriage ? Not that I can recol-
lect. Did you see Phil. Taylor there ? No,
sir. Robert Mitchell ? No, sir. What
became of Mr. Powers when he left the car-
riage ? He went back under the market
house. Did you go under the market house
at the same time ? Yes, sir. Did you
have anything to say to him? No, sir, he
said, under the market house, that he thought
it was a shame, the way the girl was treated.
What became of Mr. Maultsby, after he came
from the carriage ? I can't tell, sir. Mr.
Maultsby disappeared from your sight, then,
and you didn't see him again until after this
thing was done ? No, sir. Were you near
Mr. Powers when he came back under the
market house? Yes, sir. Did he move'
any nearer to the steps than he was, before
Archey came down ? No, sir. He stayed
at the same place? Yes, sir. How far
was that from the foot of the steps ? It
was about ten feet I reckon. Was it on the
same side of the market house ? Yes, sir
CONVENED AT KALEIGII, NORTH CAROLINA.
Ill
"Was lie sitting clown or standing up ? Sit-
ting down. "Where was Mr. Tolar, in the
same place still ? He was leaning up against
one of the pillars. At the east end ? At
the south end. Which street does the south
end front down ? I don't recollect now; it
was towards Mr. Taylor's comer. Was it at
the same end that Archey came out ? No, sir,
it was at the same end of the market, but he
was not right at the same place. He was at
the same end of the market house that Archey
passed out ? Yes, sir. Pie was standing
there before Archey came down ? Yes, sir.
Ho you mean he was standing against the side
of the arch? Yes, sir. The right hand
side as you go out? Yes, sir. Wasn't the
right hand side of the arch the side nearest
the steps? No, sir. Just think a moment,
Mr. Oliphant, when you come down the steps
ain't the right hand side of the arch the one
nearest the steps ? He was standing on the
light hand side as you go in the market. Of
the same arch that Archey went out of ? Yes,
sir. Was he standing there before Archey come
down? Yes, sir. When did he move from
Becky Ben's stall to that place, do you know ?
I don't recollect. You remember at one
time he was at one place, and just before Ar-
chey came down he was at the other ? Yes,
sir. Where were you standing when Archey
came down ? I was standing right there by
old Becky's stall. Did you see Monk about
that time ? Yes, sir. Was he there too ?
Yes, sir. Where was he ? He was
standing right there by old Becky's stall too.
Pretty close to you ? About ten feet from
me, I reckon. Now, when Archey came
down stairs, did you see him? Yes, sir.
Who was with him ? There was Mr. Wem-
wyss, and Mr. Hardy, and Mr. Plorninde, I
think. Was anything done to him before
he got down stairs? No, sir, not that I
know of. You heard no exclamations from
the crowd ? No, sir. Saw nobody make
at him before he got down stairs ? No, sir.
As he was passing through Becky's stall, and
come to where he came out, was anything
done to him ? Mr. Powers caught hold of
him and told him he could not go any further.
"Was that just as he got to the arch ? Yes,
sir, just as he went to turn the corner. Where
was Mr. Powers standing then? He was
standing on the right of Beebee as he came
down stairs. So that Beebee passed by his
left hand? Yes, sir. And just as he got
to the arch he touched him—laid his hands on
him? Yes, sir. Do you mean he laid his
hands on him roughly, or grabbed him, or
jerked him? He just put his hands on him
and told him he could go no further. That
was what you heard him say, that he could go
no further ? Yes, sir. Did you see Monk
then? Yes, sir. What was he doing?
He had his knife in his hand. Was he pretty
close to Mr. Powers ? He was about three
or four feet from Mr. Powers. What hap-
pened after Powers put his hand on the pris-
oner Beebee? They pushed Mr. Powers
off. Who pushed him off? Mr. Wemwyss,
or some of them that had hold of the darkey,
Sheriff Hardy or some of them. At the
time Mr. Powers laid his hands upon the pris-
oner Beebee, Monk had his knife out, within
four feet of him, and Powers was pushed off,
and you say Tolar was standing at the same
pkice? Yes, sir. He hadn't moved from
that place then ? No, sir. Was there any
rush made upon him, at all ? A pretty good
rush, I guess. That was at the same
time that Powers made this grab ?
Yes, sir. Was Tolar in the rush ?
No, sir; I think he was not. Then they got
the prisoner outside of the arch ? Yes, sir.
What happened then ? Mr. Tolar walked
around to about where the negro was. What
became of Mr. Powers and Monk ? I never
seen Mr. Powers any more. Did you see him
go away ? No, sir. Was he in the crowd
that pressed on ? I think he was in the crowd,
I could not say. Have you any reason for your
opinion at all, except that you had seen him
there just before ? No, sir; I didn't see him
pressing on with the crowd. You say Mr. To-
lar moved around towards where the presoner
was? Yes, sir. Did you move out of the
mailcet house too ? Yes, sir. Did Mr. Tolar
keep moving or stop ? He stopped. How
close was he to Beebee when he stopped ? About
live or six feet from Beebee, or may be further.
How close were you to Mr. Tolar when he stop-
ped ? I was about 1 wo or three feet I reckon—
I was on the right of Tolar. Were you in front
of him or to the rear, or square to his right ?
Square on his right. Where was Mr. Tolar
standing at that time; on the pavement or off the
pavement ? Off the pavement. How far
from the edge ? Just off the edge, about three
feet off'the edge. And where was Beebee, was
he on or off the pavement ? On the pavement.
What did Mr. Tolar do after he stood still ? He
pulled out his pistol. Where from ? He got it
some how or other. You don't know whether he
drew his pistol, or whether it was handed to him
then ? No, sir. Did you see him with the
pistol in his hand ? Yes, sir. What did he
do with it ? He cocked it and fired it. He
cocked it and fired it? Yes, sir. You saw
him level it ? Yes, sir. You saw it discharg-
ed ? Yes, sir. You saw the smoke and the flash ?
Yes, sir. You heard the report? Yes, sir.
Was it directed towards Beebee? Yes, sir.
Did Beebee fall afterwards ? Yes, sir. What
did Tolar do with the pistol ? I can't tell you
what he done with it after he fired; I think he
put it under his coat; he threw his shawl back
and I think he put it under his shawl some how
or other; I don't know how he got -it under
though. What was that about throwing his
shawl ? He threw his shawl back over his left
shoulder, and the pistol, I think, went under his
shawl, and he walked uji under the market house
and leaned against the pillar that he leaned against
before he came out. He leaned against the pil-
lar on the same side that Archy had come by ?
No, sir, on the other side. You say that alter
he had fired this pistol he drew back his arm, and
threw his shawl on his left shoulder? Yes, sir.
Did you see him move his hand any where else
about his person? No, sir. You didn't see
him dispose of the pistol at all ? No, sir. Did
you see him pass his hand under his coat behind ?
Yes, sir, I think he did. Was that after he
had thrown his shawl up ? Yes, sir. Did
you see whether there was any pistol in his hand
when he passed it back ? No, sir. He went
and stood by that pillar after that ? Yes, sir.
Did you hear any exclamations in the crowd ?
112
PROCEEDINGS OP A MILITARY COMMISSION,
No, sir. Did you liear any exclamations in the
crowd just as Archv come out of the arch ?
Nothing more thau the}' said it was a shame.
Did you hear any body in the crowd crying out.
any thing ? I heard them cry out " shoot him,"
and I started and ran away, and went up to where
the bell rope was, and then turned around»and
came back. That was an instantaneous move-
ment? Yes, sir. As I understand you, after
Powers tailed to grab him, and then was
driven off, there was an exclamation to shoot
him ? Yes, sir. Upon hearing that,
you ran back towards the bell rope, and instantly
thought you would go and see what was to be
doDe, and turned back and came up to Mr. Tolar ?
Yes, sir. Did you see Archy fall down that day
before he was shot ? I saw him fall before he
was shot. You saw that? Yes, sir. And
as he raised up he was shot? Immediately af-
terwards. I supposed he was trying to get loose
from the guard. That was your impression?
Yes, sir. Did you see anybody with knives that
day except Monk? No, sir. Any one with
pistols? Nobody but Jonathan Hollingsworth,
and he was a guard, and that was the reason he
had a pistol. He was a guard at the time, a
guard of what ? He was guarding toe bridge
at the time I believe. What makes you believe
that? He had been guarding it. I don't know
whether he was guarding it that day, he said he
was. Pou are not at liberty to say what he
said—do you know of your own knowledge, that
he was guarding it that day ? No, sir. How
far is the bridge from the market house? * About
a mile. They don't put out their guards a3 far
as that; do you think they do? I should not
think they would. You saw Hollingsworth with
a pistol, when was that, before Archy came down
stairs? No, sir. Did you see Maultsby any
more after you saw him at the carriage? No,
sir. Did you hear any one in the crowd say
who it was that fired, before C^pt. Tolar went
away? No, sir. I heard some one say a little
boy hollered out that Capt. Tolar shot him.
While Capt. Tolar was there ? Capt. Tolar was
leaning up against that brick pillar. Was it
loud enough for li m to hear it ? I should think
it wag. What was the expression ? Some of
them said a little boy hollered out " Capt. Tolar
shot him.' Anything else ? No, fir. Did
any bedy stop the boy ? Some one slapped him
down they said. As I understand you, Capt.
Tolar hadn't left the crowd? No,sir. Did
you see what became of Capt. Tolar afterwards ?
When he was standing up against that brick pil-
lar I started to go under the market house, and
Mr. Tolar went over to Mr. Hinsdale's store.
Were you going to speak to him? I thought
I would speak to him, and he went oft. How
close were you to Mr. Tolar when he fired ? I
can't tell,exactly how close; it was about four feet
I reckon. From two to four feet, or, if anything,
was it more than four feet? It was not more
than four feet. Was there any one between
you and him? No, sir. Were there persons
behind you and before you? There was people
behind me. Was there any one between you
and the prisoner Beebee? Tfiere was plenty of
them on the pavement before me. None be-
tween you and the edge of the pavement ? No,
sir. Was there any one between Tolar and
Archy when he fired ? O, yes, there was right
smart between them. Several persons ? Yes,
sir. Did yon notice who they were? No,
sir, I never noticed. Do you know a man in
Fayetteville by the name of John A. Smith? No,
sir. You say there were persons between them,
but you don't know who they were? Do you
know John Armstrong? Yes, sir. Did you
see him there that day ? No, sir, 1 never seen
him at all, he might have been behind Mr. Tolar.
You didn't see him? No, sir. Who did yotl
see nearest to Tolar at the time he fired the pistol ?
I never took any particular notice, because I was
excited. Somewhat alarmed were you ? Yes,
sir. Did you see the pistol that Tolar fired with?
Yes, sir. What sized pistol was it ? I can't
tell you exactly, it was about so long, (16 inches
by measure.) Do you know what sort of a
pistol it was, Colt's, or Remington's, or couldn't
you tell? I think it was a Colt's repeater.
A Colt's repeater of large size? Yes, sir. Did
you see any thing of Monk after the pistol was
fired? Yes, sir. What was he doing? He
started to go to the nigger and Jim Nixon caught
hold of him and carried him off, down the street,
and told him there was no use coming around
therewith his knife, the nigger was dead. Was
he saying any thing when he started towards him ?
Not that I heard. Did he have any weapon in
his hand ? He had a knife in his hand. How
close did he get to the negro? Not very close,
before Jim Nixon caught liim. Did he get
within five feet of him ? Yes, sir; I reckon he
did. You say you saw Sam Phillips there that
day? Yes, sir. Did you see him standing
near Tolar when he fired ? Nosir. Whattime
was it when you saw Sam. Phillips; before the
negro came down stairs ? Yes, sir. Did you see
him afterwards at all? Not until that even-
ing in his store. Did he have any weapon when
you saw him ? I think it was a pistol he had
in his coat. You saw something in his hands ?
No, sir. You are under the impression he had
a pistol under his coat ? Yes, sir. Yon didn't
see what sort of a pistol ? No, sir, I am pret-
ty certain he had a pistol, though. You judge
simply from what you heard or from what you
saw. From what I saw. From the appear-
ance of his hand in his breast ? Yes, sir. And
the swell in his clothing? Yes, sir. Do you
know William Porter? Yes, sir. Did you
see him there that day? No, sir. Do you
know James Hendricks ? Yes, sir. Did you
see see him there that day ? No, sir.
Cross-examination by the Counsel for the ac-
cused:
When were you summoned as a witness in this
case? Friday, sir. Got up here yesterday?
Yes, sir. After this firing was all over, the
shooting of the negro, you say you went down
to Mr. Phillips' store ? In the evening. Did
you find Mr. Phillips at the store? Yes,
sir. Did you go down with him ? He
had gone down before; I never went there
till about dark. He showed you his pistol when
yon got there ? No, sir, he didn't show me his
pistol. What did he say about the pistol?
He never said a word about his pistol. What
did he say about the affair ? 1 He didn't say any-
thing about it at all. How many conversations
have you had with Sam. about this matter.^ I
have not had any conversations with him about
it. I mean from the day the thing occui red up
to the present time; how many conversations
have you had with Sam. Phillips? I have not
had any conversations with Sam Phillips at all
about it. You have never spoken to him on
the subject ? I have never spoken to him about
it all. Hasn't he spoken to you about it ? No,
sir. You say he has not ? No, sir. And
you have had no conversation with him whatev-
er ? No, sir. >Vhat time did you get to the
market house that day? I cant exactly tell
what time it was; it was just before they brought
Beebee up from the guard house. Where did
you go from? I went from Bill Clark's bar
room. How many drinks had you taken that
CpNVElTOD AT BALEIOH, SOUTH CAHOXINA.
113
day? I had taken one. Hadn't you taken
more than one drink that day? No, sir; I had
not. Where did you take that? I took it
at Bill Clarks. And you took no other drink
that day ? Not until after the fellow was shot,
then I went down and took: another drink with
Nixon and Monk. What did you go to the
market house for, that day? I just went up
there because I wanted to. Were you armed ?
No, sir; I didn't even have a pocket knife, much
less a pistol. You had noarmsatall No,
sir. You just went up thereto see what was
going on ? Yes, sir. Did you see Beebee
when he left the guard house door? Yes, sir.
You say at that time there were Mr. Wemyss and
Mr. Brown and Mr. Faircloth ? I think they
were the town guard that was with him. Was
there anybody else with him that you can recol-
lect; was Hardy with him coming up from there
or not ? I don't know whether Hardy was with
him then or not. Did you see him all the way
from the guard house until he went up stairs ?
Yes, sir. You can't recollect any other per
sons who were with him ? No sir. Was
there a crowd with him ? There were some
four or five with him. You know Sheriff Har-
die well, do you ? Yes,sir. Youdon'tknow
whether he was with him or not at the time ? I
don't recollect. Yousaj'you stood about there
all the time Beebee was up stairs? Yes, sir.
Till he was brought down? Yes, sir. How
large did you say the crowd was ? I said there
was about a hundred or very near it. Was
there anything unusual in that crowd from the
time Beebee went up stairs, until he come down?
No, sir ; nothing that attracted my attention.
Nothing unusual in the crowd? No, sir.
Hear any threats made by anybody ? Nothing
more than what I just told to that gentleman.
Nothing more than that one or two persons said
it was a shame that she should have been
treated so? Yes, sir. And that is the
only thing you heard, that was of a threat-
ening character ? Yes, sir. Where did you
say Tom Powers was standing? He was
standing on the left of Beebee as he come down
stairs. While Beebee was up stairs when you
first saw Tom Powers he was sitting on a bench
up there, in what part of the market 1 About
midway of the market; it was just this side of
where the bell rope was. He was sitting there
on a bench? Yes, sir. What was he do-
ing, anything? No, sir. Did you see him
do anything, or did you hear him say anything,
until Bebee was brought down ? No, sir.
Did he keep that position until Beebee came
down ? He got up just as Beebee came down
stairs. How long before Beebee came down
stairs was it you saw Capt. Tolar ? It was half
an hour, I reckon. Did you see him when he
came there ? Yes, sir. Where did he come
from ? The upper part of the market some-
where. You didn't see him enter the market ?
No, sir. You just saw him come from the up-
per end of the market? Yes, sir. And he
came down and took his stand against that north-
ern pillar of the main eastern arch ? Yes, sir.
Did he stand with his face to the pillar, or with
his side ? He was standing with his side to
the pillar. Which side was he leaning up
against the pillar ? His left side. His left
side was leaning against that northern pillar of
the eastern arch ? Yes, sir. Which way
was his-face? Towards the river. Was
any body with him ? No, sir. He was
standing there alone ? Yes, sir. Did you
see any body with him at all, before Archy came
down ? I saw Mr. Leggett with him. Did
you see any body else there with him ? I saw
Mr. Phillips there with him. You saw Leggett
and Sam Phillips with him ? Sam Phillips
was standing there; I don't know whether he
was talking to him or not. Don't have Sam
talking; you saw Leggett and him talking,
though ? Yes, sir. Did you hear what they
were talking about ? No, sir. Do you mean
to say they talked in whispers ? No, sir.
Just talked in an ordinary conversational tone?
Yes, sir. And you didn't hear what they were
talking about ? No, sir You said some-
thing about your thinking Tolar bad a pistol ?
Yes, sir. What reason have you for thinking
that that was a pistol? From what I corild
see, and where he had his hands, I thought it was
a pistol; I won't be cei'tain. Did you seethe
stock "of it? I saw something like it. Do
you know whether it was the stock of a pistol, or
whether it was a watch ? It was not a watch.
How did itlook ? It looked to me like a piece
of wood, of some description. Where was it ?
It was in his breast pocket, under his coat on the
left side. Inside of the coat, or outside ? On
the inside of the coat. What did he have
around his shoulders, anything? He had a
shawl around his shoulders. Was the shawl
fastened? I won't be certain whether it was
fastened at the top or not. Don't you recollect
whether it was pinned up, or whether it was loose,
could you see under the shawl? Yes, sir, you
could see under the shawl if you were close to
him; I think it was loose. You could see
something you thought was wood ? Yes, sir.
Do I understand you to swear positively that that
was a .pistol? No, sir, I don't swear positive;
it was my belief that it was a pistol. Then you
saw him standing there, and he had something,
and you don't know what that something was ?
No, sir, I don't know what that something was.
Was he doing anything? No, sir. Doing
nothing? No, sir. Standing there still?
Yes, sir. When the boy was brought down
stairs, where did I understand you to say you
were standing, just as he got to that portion of
the stairs when you could first see him, where
were you ? I was standing there at old Becky
Tyler's stall. How far were you off from the
stairsteps? I was not very far; it was right
opposite to old Becky's stall, and just as soon as
they commenced bringing' him down stairs, I
went across to old Becky's stall, and Mr. Powers
was standing inside there. Now, at the time
Beebee was so nearly down the steps that you
could see—at the time you first saw him, who
was with him ?' I can't say for certain; I know.
Sheriff Hardie and Wemyss were with him, and
Mr. Faircloth. Where was Wemyss?
Wemyss had a string around the fellows finger.
Which finger, his front or little finger? It was
his thumb. Which thumb, on his right hand
or left ? I never noticed whether it was his
right band or left. Which side of him was
Wemyss? He was on the right side, I think.
So he had the string around the prisoner's right
thumb? Yes, sir. Where was Hardie?
He had him in the back of the neck, somewhere.
MOCJCHDIKG* 0* A MILITARY Cy^ji/oSIOIT,
That was up stairs when they were just coming
down ? * He had him by the back of the neck
when he went to turn the market house I am
talking about when you first saw him coming
down the steps; did Hardie have him at all' {
I never noticed. bo you know whether he had
him at all ? I don't know whether he had hold
of him. Do you know whether Hardie was
about him? Yes, sir. Which side was Har-
die on ? He was right behind him, as well as I
could see. You saw every thing about it,
didn't you ? Yes, sir. That is the way they came
down stairs: Wemwyss on the right hand side with
a twitch around his right thumb, and Ilardie be-
hind him ? Yes, sir. Who came down to the floor
first, Wemyiss, or Beebee, or Hardie ? I think
Mr. Wemyss and Faircluth and the boy got down
first. And then Hardie came down? Yes,
sir, he was close behind them, How long was
it after the boy came down before Hardie came
down ? It didn't lack anything at all, he just
got down right behind them. Didn't Hardie
come down before them ? ■ He did not. You
are certain he came down behind them ? I am
certain he did. They-got down on the floor of
the market and then Hardie stepped down behind
them? Yes, sir. And you saw them? Yes,
sir. Nowr at the time the boy appeared on the
steps of the market house, did you see John
Maultsby? No, sir, I never saw John at that
time. Who did you see on that bench by
Becky Ben's stall, at the time the boy was brought
down? I saw Bob Simmons for one. Was
he sitting down? He had his knee on that
bench. Looking which way ? He was talk-
ing to old Becky, I believe. You understand
the bench, I mean. It is that bench which runs
to the left of Becky Ben's stall, as you cbme down
through the stall; just as you get in Becky Ben's
stall there is a bench to the left, it is that bench I
am speaking of. Did you say he was on that
bench at that time ? It was a bench on the left
band side as you go in the market house,-1 am
speaking of. I mean the one on the left hand
side as you come down the steps. No, sir, I
never seen anybody there. Do you know John
Maultsby, well ? Yes, sir. I will ask you if
you don't know as a fact, that at the time Beebee
was seen first coming down the steps that Maults-
by jumped up on that bench ? 1 never seen
him, sir. Did he do it, or did he not ? If he
done it I never saw him. I ask you if you
don't know that in addition to jumping up on a
bench, MauKsby raised his hand when he jump-
ed up ou that bench, and said "watch out, boys ?"
It he done it I never saw him. Could that
have occurred there, Maultsby's jumping up on
the bench and crying out those words in an ordi-
nary tone of voice, could that have occurred
without yoit seeing it ?
Counsel for the prosecution objected to the
question.
Counsel for the accused—I will ask the ques-
tion:
Could you not see everything upon that bench ?
I didn't notice that bench and I didn't see it.
You saw nothing of it at all ? No, sir. You
didn't see John Maultsby at all ? No, sir. From
the position you occupied over there by Betsy
Tyler's, looking at anybody coming down those
steps, could you not have seen a man who jump-
ed up upon that bench? I never seen any man
jump up upon the bench. Wouldn't you have
looked right over the bench from the position
you occupied, would not your line of sight have
been right over that bench ? I was noticingup
the stairs, I didn't notice who was on the bench
at all. Could you have seen up the stair steps
at that time without seeing right over that
bench, was not that directly in your line of
vision ? Which bench do you mean ?—that one
towards Draughon's. The one Becky keeps
her cakes on? I never seen him. Wouldn't
you have seen him looking the way yon
were, up the stairs ? It looks like I would have
seen him if he had done it ? What is your im-
pression, that it was done or was not? I don't
think he done it? You saw nothing of it? 1
did not, sir. How lorg was it before Beebee
came down, that Miss Massey and her mother
came down. It was about tea or fifteen minutes
I reckon. Did anybody come down the fteps,
between the times that Miss Massey and her moth-
er came down, and the time that Beebee came
down? Not that I recolleet, sir. V ou say
Miss Massey came down, and her mother, and Mr,
Bond took them out to the carriage ? Yes, sir,
I think it was Mr. Bond. And you went out to
the carriage at the same time? Yes, sir,
What did you go for ? I just went out there
because I wanted to. I just went out to see what
was going on. You went out to see what was
going on? Yes, sir. What I went out thero
for, some of them said her throat was scratched,
and I wanted to see if it was. Tbat is what you
went out for? Yes, sir. Who was in the car-
riage at the time you got out there? There
was a black man thererbutl don't know who it
was. Then Miss M ssey and her mother got into
the carriage and drove off. I suppose they went
down to Mr. Hollirigsworth s, I don't know. How
long, had they been out there before Tom Powers
was called up? They hadn't been there no
time hardly. You are certain Mrs. Massey call-
ed out Tom Powers. He went out on his own
accord. I understand you to say Miss Massey
called him out there ? Miss Massey spoke to him.
Torn was not very far from the carriage when
she spoke to him, and then Tom went up to the
carriage, she did not call him from under the mar-
ket house 1 know. And Tom said' nothing to
her ? She told Tom not to have anything to do
with it. Was that all that passed between
them? That was all I heard, Tom went to
the carriage and Mrs. Massey told him not to
have anything to do with k ? Yes, sir. You
ididn't hear Beebee'sname mentioned? No, sir,,
that was all I beard. Where did Tom go to after
he left the carriage? Ha went back under the
market house. What part of the market house
did he go to ? He went right up there by old
Becky's stall. Did he go up near the steps?
No, sir. He didn't go near the steps? Hs
didn't go inside of' Becky's stall at all. Did
he go in under the m»arket bouse at all at that
time? Yes, sir, he leaned up against the pillar.
Where were you at that time? I was standing
right there by old Becky's stall. You had
shifted from old Betsy Tyler's stall ? Yes, sir.
The boy hadn't come" down stairs then. Di-
rectly after Tom Powers came back from the car-
riage, where were you ? I was standing by old
Betsy Tyler's. Tom went right ahead of me, o»
one side of the market, and I went on the other,
over to old Betsy's stall, Where did Tom take
his stand when he came back from the carriage ?
He was standing right there at old Becky's stall,
and he moved and went on the inside there at toat
pillar. Did he lean against the pillar? I
thins'so. Tou mean the pillar that sepa-
rates the main arch from the Southern arch ?
Yes, sir. Which way was he looking?
Towards the north. Did he continue to look
north until Beebee was brought down ? Yes, Bir.
Tom didn't change his position when he first came
ou the floor of the market ? He changed hia
rOSTKNETD AT RALEIGH, KORTH CAROLINA.
119
position to stand up straight. He didn't leave
that place until Beebee was brought up to, where
he was ? No, sir. You are certain Torh staid
there until the sheriff and the officers brought
Beebee around to go out ofthe stall ? - Yes, sir.
You can't be mistaken about that? No, sir.
You say when they brought the prisoner along
there Tom put his hand upon him? Yes, sir.
Which hand? His right hand-, from what I
could see, from the way the fellow was coming it
looked as if it was his right hand. What part
of his person did he put his hand upon ? Upon
his coat. Did he grasp his coat, or just put his
band gently on him ? I don't know whether he
had his hands on or not. That was upon Bee-
bee's right side? Yes, sir, and Mri Wemyssor
some ot them pushed Tom off You say Tom
didn't grab him? He had hold of him some
how or other. Did he grab him or just lay his
hand upon him ? If I should command a pris-
oner that way I would take hold of him. Did
he command the prisoner? He told him he
could not go any further. Did you hear him
6aythat? Yes, sir. You are certain those
are the words he used ? They are the only words
I heard him use. How did he say that, in an
easy tone of voice; did he just take hold of him
and say he could not go any further ? Just about
that way. You heard no other words but these
used ? No, sir. And, accompanying that, he
laid his hands upon his coat ? Yes, sir. Was
it his right hand ? I think it was, it looked to
me like that. You are here to tell what you
saw and not what you think ? I could not tell
exactly, but I think it was his right hand, I am not
positive.. Did he have any knife in his hand?
I didn't see any knife, sir. At that time you
say he was pushed back? 'Yes, sir. Who
pushed him back? Mr. Wemyss or some of
them in the crowd. What did he say when they
pushed him back? He never said any thing at
all, sir. How did he push him, gently or rough-
ly I They just pushed bim off. Did you see
the guard use their clubs that day ? I think Mr.
Wemyss struck Monk. That was the only use
yon 6awmade of theclubs that whole day was it?
Yes, sir. Now, I want to know at the time
Powers had his hand up, as you say, and put it
on the prisoner, where were you standing at that
moment ? I was standing at the end of old
Becky Ben's stall. How far were you from
Tom ? About four or five feet ? Do you feel
very certain that these things occurred just as you
have given them? Yes, sir. And Tom said
what you have said he said ? I think that is
what he said: I know that is all I heard him say
at that time. At that dime did you see Capt.
Tolar ? I seen Uapt. Tolar, he was leaning np
.against that pillar at the time Powers put his
hand on him. Where was Tolar standing? He
was standing at that brick pillar. How did he
have his hand then? Under his coat. Was
that his right hand ? Yes sir. What was he
ffoing with his left hand ? He had his shawl in |
his left hand holding it over his right hand.
Then they moved on with the prisoner: what oc-
curred next? Capt. Tolar went around. How
fur had they got with the prisoner? "That was
when Tom* grabbed hold of him. Then the
crowd generally rushed upon him ? Yes, sir.
But Tolar was not in that rush? No, sir.
Were you in it? No, sir. You were just
standing still-? I was standing still. You
didn't go into that ? No, sir, You feel pret-
ty sure Tolar didn't go into it ? I am sure he
didn't go into that; if I had been into it myself I
would not haA-e seen Tolar. Then they carried
him through the arch and got him on the pave-
ment, and out there what happened—when was
the time you saw Monk rushing at him ? That
was when they were going around the end of the
market house. What end ? Around the arch
where they come down. Then you saw Monk
rush at him with a knife ? Yes, sir. What
sort of a knife was it ? I can't tell. Which
hand did he, have it in ? In his right hand.
How far had they got with Beebee out on the pave-
ment before he was shot ? It was only about
the corner. The corner of the market ? Yes,
sir : nearly about right on the corner under a lit-
tie tree; he fell right there where there was a lit-
tie post. At the time Beebee was shot did you
see him ? I seen Beebee when he poked up his
head, and I saw him when he fell. You saw
that ? Yes, sir. Then where was Beebee;
was he nearer to the market house, or nearer to
the center of the pavement or nearer to the outer
edge of the pavement? Prom what I could
see he was near about right at the corner. Then
he was very near the edge of the pavement ? Yes,
sir. Near the edge of the corner ? Yes, sir.
And you say that just before he got there you
saw Tolar leave his position up there near the
pillar where you have described him, and walked
along across the pavement and off the pavement ?
Yes, sir. You are certain you saw him walk
up ? I did sir. Where were you standing
then; on the pavement or off ? I was on the
pavement; as soon as I saw him go around, .1
went around too : and J saw him have his pistol
in his hand, and he cocked it, and some of them
hollered out, " shoot the damned son of a bitch,"
and he fired it. We will get to that directly:
what was his position when he went across; the"
same that it was before, with his hand under his
shawl ? Yes, sir. Did he go around there
in the rush ? He appeared to walk tolerable
fast to get around there. Was there anybody
in his way before he got up near enough to shoot
Beebee? There was right smart between him.
I mean anybody he had to push out of the way?
No, sir. Were you close to Tolar from the
time Jie left that position by tlie pillar, until he
got around to the place where he shot him ?
Tolar went right on ahead of me and I went be-
hind him. What distance was there between
you and Tolar at the time you were following
him around. About three feet. Now during
the time that Tolar was going around there to bis
position, did you see him push anybody out of the
way ? He had bis left hand, audhushed them,
and after that he told them to look out or some-
thing like that. Did he touch anybody when he
did that way ? I should think he touched some;
I don't know how it was. I don't ask you for
what you think; did you sec him touch any body?
There was two or three black men that I think he
touched ; 1 am certain he did. Name one of
them? I can't tell for I don't know their
names. Did you see him touch John Arm-
strong ? No, sir. Did you see him touch
Robert Simmons ? No, sir. Did you see
him touch Jim McNeill ? »No, sir. Did you
see him touch James Douglass or James Hawley
the yellow man that stays at Fishblates ? No,
sir. Did you see him touch Matthew Leary ?
No, sir You know these men don't you ? Yes,
lis
PROCEEDINGS OF A MILITARY COMMISSION,
sir. You think Tolar touched some body as he
went on, did you see him push any body out of
the way ? He pushed two or three out of the way.
Did he pushtiiem out of the way to the right or
left? To the left, sir. Now when Toiar got
up where he took liis stand to fire, then I. under-
stand that you were on his right? Yes sir.
Mow far were'you then from the edge of the pave-
ment? I was shout two feet, Ireckon, or three.
How far was Tolar to your left? Abouthree or
four feet, sir. S > that Tolar was seven or eight
feet from the edge of the pavement at the time he
fired? -No, sir, he wa-n'tthat far. Count up;
you say you were two or three feet from the edge
of the pavement, and you were three or four feet
from him. He could have been closer than
eight feet to the pavement. How far was he?
I think he was about six feet or seven may be.
Won't you make it beyond seven? No, sir. At
that time who was on Tolar's left? There was
■a whole crowd on Tolar's left; I could not tell
•who they were ? Didn't you notice the man
who was nearest on his left?* No, sir, I never
noticed anybody at all only him ; I saw them make
the rush; saw the negro try to get away from
them. At that time who was between you and
Tolar? There wasn't anybody at all right be-
tween us. You were the nearest man ? I was
about the nearest to him ; 1 stood off; I didn't go
right up on him. Nobody between you at all?
Nobody between us at all. Tolar you say had
the pistol in his hand; you didn't see where le
got it from? No, sir, I never seen where he got
it from. And you saw him cock it? Yes,
sir. How did he cock it; did he take it in both
hands to cock it ? I think he took it in
both bands, I think he did. I will ask you
whether he did or not? He had it in his left
hand and took hold of the barrel with his right
hand and cocked it with his thumb. How did
he raise it up; did he throw it first in the air and
bring it down to a level, or did he raise it to the
level first? He just raised it up, and leveled
and fired it. You saw that pistol? I did,
sir. And you say it was a loDg pistol ? Yes,
sir, it was a tolerable long one. And you say
you think it was a Colt's pistol ? I think it was,
I don't know one from another. Was it a round
barrel, or was t what they call an eight sided bar-
rel ? I never took the pistol in my hand ; I
could not tell. Do you know whether it was a
single-barrel pistol, or whether it was called*a re-
vol ver or repeater ? It didn't have but one bar-
rel, but I think it was a six shooter from what I
could see. You said just now that it was how
long ?
(Witness measures off sixteen inches on the
tape.)
You are confident that was the length of >t.
About that long. I am not confident, but 1 think
it was. Did I understand you to say that
when Tolar went there, he said '' I will shoot
the damned son of a bitch."? I didn't hear
liim say that sir; I didn't think he cursed at all.
Did I understand you to say he said anything ?
He never Said anything, only for them to get out
of the way, and some of them hollered out " shoot
him," and he said then "get out of the way"
and he took his left hand and pushed them.
How many persons were between Tolar and Bee-
bee at the time the pistol shot was fired ? I
could not tell you how many, a good many;
there was some fivfe or six I suppose. Were
they standing still ? They were standing still
looking on. Do you know whether they were
standing still or moving about? They were
moving about, some of them. Then they were
not standing still ? Some of them were stand-
rog.still and some moving. go there were *8
many as five or six persons between him and Bee-
bee, some standing still and some moving about ?
Yes, sir. All excited apparently ? Yes, sir.
Great confusion? Yes, sir. Did you see
these men who were bending over in front of
Tolar, leaning out of the way to the right and to
the left? Some of them were leaning to the
right that was in front of Tolar ? Were any of
them leaning to the left? They were all on
each side trying to lean right and left to keep
from getting shot I reckon. Still they were
moving about ? Some of tbem, were and some
were not. Can you name a single person white
or black who was in that crowd at the time
the shot was fired? No, sir; for I was excited
myself. I think you said you didu't see any-
ihing of Sam. Phillips there at that time ? No,
sir; not at that time. Did you see any other
pistols in the erowd ? I seen Jonathan Hoi-
lingsworth have a pistol, there. And with the
exception of that and Tolar's pistol you saw no
others? I think Mr. Phillips had a pistol, I
won't be certain. That is what I am talking
about; did you see it ? I seen him place his
hand under his coat—I am pretty certain I seen
the stock of the pistol; I am not sure of it.
You are pretty certain you saw the stock of the
pistol? Yes, sir. Was that just at the time
the negro was shot? It was just before they
brought him down stairs; I never seen Sam.
Phillips after that at all. You didn't see Phil-
lips with the pistol in his hand at all ? No, sir.
As soon as the shooting occurred what did you
say became of you ? I went down to Clark's
barroom. And took another drink ? Yes,
sir. Did you stay there long enough to see
Phillips throw his pistol up to show it to the
crowd after the shooting occurred'! I never
noticed whether he threw up his pistol or not.
You never saw that ? No, sir; I never saw his
pistol only what I could see under his coat.
You spoke just now of when Tolar 6hot, of his
having put his pistol back; did you see where he
put it? No, sir; I don't know whether he
handed it to any body back of him or whether he
kept it under his coat. Under the left side of
his coat? Yes, sir; he threw his shawl hack
and I don't know what he did with it. How
did he throw his shawl; from his right arm over
his left? Yes, sir. Throwing it across the
breast? Yes, sir. Did you see the shawl
strike any' body? No, sir. Did you notice
whether there was any body near enough on the
left at that time to have been struck by the
shawl ? There was a good many on the left
right close to him. Did you see anybody at
that time on his left that you knew ? No, sir,
I was not taking notice who was aronnd him, I
was just looking on to see what I could see, that
was all I cared for. Did Tolar leave there bo-
fore you left or did you leave first? I went
and stood off against that pillar, and I went up to
where he was. How did he go there ? He
walked back there of course. Did he turn
with his face towards the market house or off
from the pavement ? W ith his face towards
the market house. Did he turn to hisrignt?
I can't exactly tell how he turned, but any how
he went back to thp market' house. I want to
know whether be turned to his right hand side
wheeling to his right, or whether he turned
wheeling to his left f 1 think he turned to his
right. You think he made a right wheel ? I
think he did as well as I can say. Well that
brought him nearer to youdidit? Yes, sir, he
went right by me, then he went up and took his
stand against the same pillar of the market house,
he had come from. Against the north pillar of
the eastern arch ? Yes, sir, and I started to go
CONVENED AT RALEIGH, NORTH CAROLINA.
117
up towards him, and lie went oyer towards Mr.
Hinsdale's. (Witness represents on the chart
Tolar's position as standing against the north
east pillar of the main east arch.) Did he stand
on the pavement or under the arch inside?
Right under the arch. So it was against the
face of the pillar that he took his stand? Yes,
sir. How long did he stand there 1 He nev-
cr stood there but a mighty little time, he went
off. How long do you think it was ? About
three or four minutes, I reckon. Then he went
Over to Mr. Hinsdale's? Yes, sir. Which
way did he go, around the market house?
He went through through the market house as
well as I could see. Did he stop anywhere be-
fore he got to Mr. Hinsdale's? I never seen
him stop. Did he stop gt Mr. Hinsdale's ?
Yes, sir. Which door did he go into? I
never noticed him any more, I don't know which
door he went in. You were saying something
ft out hearing a little boy hollering out who shot
him ? I didn't hear the little boy, myself, I
heard some one say that the little boy did do
that. When did you hear that? Directly af-
ter it was done. Where was Mr. Tolar at the
time the man spoke that ? He was leaning up
against that pillar. How far off Irom where
the man was, what I want to know is, whether
Tolar was near enough to have heard that re-
mark. I don't know; I reckon he might have
heard it. Was it made in a loud tone of voice?
There were some men talking there, and said that
the little boy hollered out that "Tolar shot
him," and said that they had slapped the little
boy down. I want to know if that was said
loud enough to Tolar for him to have heard it?
I don't know that he could have heard it, he may
have heard it, I didn't hear it myself, and I was
standing pretty close to Tolar myself. Witness,
you don't seem to understand me, I understand
you to say you didn't hear the little boy say who
shot him ? No, sir. You mean you heard a
man in the crowd say that a little boy was
slapped down ? Yes, sir. Now I ask you if
that man who said that he heard the little boy
use that expression, if he was in such a position
that when he said it Tolar could have heard it ?
No, sir, I don't think Mr. Tolar could have heard
it. You don't think Tolar could have heard it?
No, sir.
Re-direct examination by the Counsel for the
prosecution. How came you to be summoned
here, do you know ? No, sir. You say you have
never talked to Mr. Phillips about this business ?
No, sir. Have'nt yon been very careful who
you talked to ? Yes, sir. Didn't yrou come
here unwillingly to testify? Yes, sir; I did.
It was very hard for you to have to tell it ? Yes,
sir. Didn't Colonel Cogswell see you before
you came up here? Yes, sir. Did any of
his officers ask you about this business ? The
Lieut, asked me. What did you tell him ? I
told him I didn't see who shot him. You have
told that to several persons? Yes, sir: I have
never told but to one man and that was Henry
Sykes that I knew anything about it; I didn't
think he had ever told it. You don't remember
ever having told it but to one man ? I don't
recollect. Phillips has nothing to do with your
testimony to day ? No, sir. Yon said that
Mr. Hardie came down stairs behind Beebee ? I
am certain he was right close behind him. That
is your impression ? He was close enough be-
hind him, that when he got down stairs he grab-
bed him by the back of the coat. Is that the
reason you think he came behind him ? Yes,
l»ir: and I saw him come down behind too.
Re-cross Examination by the Counsel for the
accused.
So you frequently told others a different story ?
Yes, sir : I told them, because I never was pnt on
oath. How many times have you told any body
that you didn't know who shot him ? I have
told several that I didn't know who shot him, be-
cause I didn't want to come here.
Robert Mitchell, a witness for the prosicu-
tion, having been first duly sworn testified as
follows:
Examined by the Counsel for the prosecution.
What is your name? Robert Mitchell.
Where do you live ? Payctteville. What is
your occupation there? Merchant. Were
you a merchant there early in this year? Yes,
sir. At the time Archv Beebee was killed?
Yes, sir. Do you remember what day of the
month it was he was killed? I do not sir.
You remember the time ? Yes, sir. Was it
since last Christmas ? I think it was sir. Did
you see Archy when he was brought from the
guard house? Yes, sir. Where were you
standing at that time ? I was in my store.
What street is your store on ? Gillespie street.
On which side as you go from the market house ?
The west side of Gillespie St. That is the side
opposite the guard house ? Yes, sir. Could
you see the door of the guard house ? No, sir:
I could not see the door ; the guard house is rath-
er back from the street and there is a little en-
trance that you go into. Could you see that
entrance? .Yes,, sir. Did you see Archy when
he came out of that entrance ? I saw him the
time he got in front of my store. He passed
in front of vOur store on the opposite side of the
street? Yes, sir. How long after he passed
before you went to the market house? I could
not say how long it was ; it was after the la-
dies drove up to the market house ; I then went
up there, and Archy was up there ; or the boy; I
didn't know his name was Arch ; I have heard
since it was Archy Beebee; I went up stairs then.
Was Archy up stairs when you got to the market
house? Yes, sir. Are you a relation of Miss
Massey that is, the young lady upon whom this
violence was attempted? My wife is her
aunt. Her father ytnd your wife are sister
and brother? Yes, sir. What is his
name ? William H. Massey. What is
the young lady's name ? Elvira Massey.
You went over there for what purpose ? I
went there as a matter of protection to her,
sir. As a matter of courtesy and protection ?
Yes, sir. Did you stay up stairs in the market
house ? I did, sir, I stayed there until the
trial was over. Did you notice the crowd as
you passed through it; was there many persons
there ? I didn't notice particularly; I saw
a good many persons. Was it a larger crowd
than is usually there ? It was a pretty large
crowd. Have you ever seen such a large
crowd there upon the occasion of a trial ? I
don't know that I did. How long have you
been living in Fayetteville ? I have been
living there all my life, pretty much; I have
been living there regularly for the past fifteen
or sixteen years. You were up stairs then,
when Mrs. Massey and her daughtor came
down? Yes, sir. They came down b»-
118
PROCEEDINGS OF A MILITARY COMTHISSION,
fore you came down? Yes, sir. How
long before, a minute or two? It was a
short time; not more than that. Who went
down with them ? Mr. Bond, the Constable,
her mother and herself went down together;
about the time they started down, me and Mr.
Massey, who is my father-in-law, went after
them. The young lady's grand-father and
yourself went down together? Yes, sir.
Is Miss Elvira Massey's father living ? No,
sir. Who are her nearest male relatives, has
she brothers ? Yes, sir. Grown up ? No,
sir, no brothers grown up; a young man by
the name of David Shepherd Massey, he is the
next child to Miss Elvira. Is he grown ?
No, sir. I mean men; what men are her
nearest male relatives, that you are aware of,
living there ? I reckon Mr. Tom Powers is.
What sort of a relationship between her and
Mr. Powers? He is a brother to her
mother. He is Miss Elvira's uncle ? Yes,
sir. A maternal uncle ? Yes, sir. Was
there any relationship between Mr. Tolar and
Miss Elvira ? I am not certain whether there
is or not; I have heard Mrs. Massey speak of
being related to -some Tdfars, hut whether it is
Capt. Tolar's family, or another Tolar's family,
that live down the river, I am not able to say.
You are not certain about any relationship ex-
isting, or if it exists, you don't know what it
is? No, sir. But you think you have
heard your father-in-law say there is some be-
tween them and the Tolars? Yes, sir, I
think his name was Nedham Tolar; whether
Capt. Tolar is any relation to them or not, I
don't know. Do you know old John Maults-
by? Yes, sir. You know young John?
Yes, sir, I know both of them. What rela-
tionship exists between young John and Miss
Elvira ? Well, sir, I don't know what rela-
tionship exists between them; I know what
they say is the relationship between John
Maultsby's father's mother and my father-in-
Jaw, they were brother and sister ; that is what
I understood. John Maultsby's father's
mother and Miss Elvira's grand-father were
brother and sister ? Yes, sir. That makes
them second cousins ; do you know whether
there is any relationship'between Sam Hall
and Miss Elvira ? None that I know of. Do
you know whether the Lutterlohs are connected
in anyway? Not that I ever heard of.
When you came down stairs, did you go to the
-carriage where the ladies were ? I did,
sir. Who was there, at the time?
I think Mr. Bond was there, and I think Mr. Phil-
. liman Taylor. Do yon remember any one else
coming up there while you were there ? Prob
ably Mr. Massey went with me, I won't say posi-
tive. You don't remember seeing any one else?
No, sir. Did the carriage drive off before vou
left ? Yes. sir. Yrou saw no one else speak to
them in the carriage that you recollect of except
Mr. Philiiman Taylor, and you think-it is possible
that your father-in-law may have gone up with
you? Yes sir, they went to turn the horses iff
and the horses didn't appear to be wil.ing to go.
and Mr. Bond or Mr. Taylor took hold of the
horses; it is my impression it was one of them
who took hold of ihem, and sort of lead them
around; he started them off and they went down
Person street. Did you leave immediately after
that? I did, sir ; I went back to my store.
Did you see Mr. Tolar, or anv of these other gen-
tlemen on trial here, at any time that day ? I
am notjpositive that I did ; I think 1 saw Mr. To-
lar in the market house sometime. Did you see
Mr. Powers that day at all ? I have no recot-
lection of seeing: him that I th:nk of. Do you
know Jonathan Hollingsworth ? I don't know
him, sir; I may know him if I could see bim, but
I never knew his name. Did you s»e Monk
while you you were in the crowd at all ? I
didn't see him until the matter was over with.
You didn't see him during the time you werepa^s-
ir.g through the crowd to go to the carriage?
No. sir. Y'ou didn't go up there until the car-
riage drove up with the ladies in it? No, sir.
You went up with, them, or immediately a'ter-
watds? I went up immediately after-
wards? How long did t he carriage remain there?
I can't say exactly. As much as five minutes?
I can't say; it, was a short time. There was
some conversation going on all the time? Yes,
sir ; but who they were I have no recollection ef.
You have no recollection of any other persons be-
ing there than you said ? No, sir. The horse
was led off, and you turned immediately and went
towards your store? Yes, sir. How far had
you gone before your attention was attracted back
to the crowd/ After th° carriage le 11 went
over to the store; I went around to the south end
of the market and went to mv store. Y'ou didn't
go through the market ? No, sir, I went around
thejsouth-east corner; I am not certain whether I
went on the pavement or not. but I recollect very
distinctly that when I got over very near my store,
about a little tree that stands in front of Mr. Pe-
ter Johnson's, who is two doors above my store, I
heard a crowd rushing and some persons hollering
out " shoot him" 4' kill him," or something to
that effect; I turned around, in the meantime I
saw a crowd, a good many persons coming up
towards the market house, and I heard a pistol
Gred; that was right at the south-east corner of.
the market: I heard a tun, or pistol., or some-
thing ; I saw the smoke; I kept on to my store, I
didn't go back at all until after the crowd dispers-
ed. How long a time did it take you to walk
from the market house to the point where yon
heard the pis'ol fired ? I have no recollection o f
stopping; I might have stopped before I got there,
but it didnt take me but a short time to go there.
How many yards was it ? I am going to tell it
as close as I can ; I suppose about seventy-five
yards. Archy Beebee was going down stair3
when you left the market house ? No, sir. He
wasn't on the stairs? No, sir. And by the
time you had walked seventy-five yards you heard
this rush ? Yes sir. You don't remember
stopping anywhere ? I don't remember to have
stopped, though I might have done it. What
is your impress on, that you did not stop? 1
don't know whether I did or not. ' I am trying
to fix the time that it took for this whole transac-
tion. I can't say; my impression is probably I
might have stopped, or I might not; I would not be
positive about it. Do you renumber stopping
anywhere? I don't remember that I stopped
anywhere after I left the carriage. Then by the
time you had got seventy-five yards from that
spot, you heard this rush, and heard the pistol
fired ? Yes, sir, when I turned around to look,
I saw the sticks; it seemed the police appeared to
be using them—at the south end of the market
house, thev appeared to be above their heads, and
it was all done in a flash. Did these things
happen in as quick succession as you are
telling them ? I should think they did.
Could you have counted a hundred during the
time you were looking at the crowd until after
CONVENED AT RALEIGH, NORTH CAROLINA.
119
you saw the sticks ? No sir. From the time
you turned until the pistol tired could you have
counted a hundred? Just before the pistol
fired I saw the sticks. -1 want to come to your
estimates; you were out of the crowd and were
cooler than any who were in it; how many could
yon Lave counted between the time you heard
that lirst rush and the time the pistol was fired;
between the beginning and the termination of the
whole affair? " Really, I can't say how much I
could have counted; I might have counted a
hundred, or two hundred, or probably could not
have counted a hundred. It was very quick,
was it? Yes, sir. A minute or two would
embrace all ? I can't say; I mean to tell you
as nearly as I know; I would not say it would
take a minute or half a minute,; it may have taken
more, but it was all done very quick. There
was a rush at the market up stairs, as I under-
stand, when he was coming down, and continued
until he got around to the "east end of the market
and yon heard the report of the pistol, and saw
the smoke from it ? Yes, sir. Did you notice
what became of Philliinan Taylor when he left
the carriage? I did not, sir, I didn't pay any
attention to any persons at all. Did you notice
what beeime of your father-in law; did he go off
with you? I doL't think he went off with me;
I will not be positive what became of him; I think
he came down to my store afterwards ; I will not
be sure, but I left immediately and came out of
the crowd. Do you know whether Phil. Tay-
lor left there at all, or whether you left him in the
crowd ? I don't recollect; he keeps at the north-
east corner of the market house; the carriage
stopped nearly fronting his door, it might have
been a little to the west of his store, but if if was
it was very little; it was about the market square
You don't recollect what became of him ? No,
sir.
Cross examination by the Counsel for the ac-
cused:
Mr. Mitchell, who was up stairs during the
time of the trial, do you remember? Yes, sir.
Just give us the names of all, if you please?
Well, sir, there was Squire McRae, Joseph Arey,
J. W. Strange, were the magistrates. Ancl
Lett? Now, I forget about Lett, 1 wont say
for certain, about Lett, I recollect these three ;
Mr. Horn, who was the attorney; Mr. M°ssey,
f rand father of this young lady, Mrs. Massey and
Liss Alassey, Mr. James Dodd and myself, and an
old colored woman, I don't know who she was,
that was giving evidence, and a boy by the name
of Morgan Dennis McKeever, and this boy that
was shot, and Mr. Bond was up there occasional-
ly; I don't know whether he stayed there all the
time or not. Do you remember French Strange?
No, sir. Do you remember Hardie, the sheriff ?
I think he was there. Wemyss? Well, he
may have been there. Fairclotb ? I think
Faircloth was down at the door. Brown ? I
don't recollect him being there. McGuire,
member of the town guard ? I guess they were
down at the door, I don't remember them being
up stairs ; they may have been there, but I don't
remember; there were but very few people there.
The door was kept closed and only those who
were immediately intere ted in the case were per-
mitted to go up ? Yes, sir, that is so, because
when we went to the door and knocked they did
not want to let us in, and as soon as they opened
the door and found it was Mr. Massey and myself
they asked if we could come up, and the magis-
trate said let all the relatives come up on both
sides. Do you remember whether any
body went down before you or not? Yes,
6ir, 1 remember Mr. Bond taking Miss Mas-
sey and her mother, and going down. JTben
the next t« them was yourself ancfp^Mr.
Massey? I think we were next—may be Mr.
Dodd went down before I did; I won't be posi-
five about that, but I am satisfied that after Mrs.
Massey went down with her daughter, Mr. Mas-
sey and I went immediately after ; if there was
anybody else went before that I have no recollec-
tion of it, though there may have been. - You
say younpticed nothing unusual about the crowd
when you went down? I didn't notice the
crowd much. When you got to the carriage
who was there ? I think Mr. Bond was there.
At the time you got to the carriage had the ladies
got seated ? They were being seated; they had
got in. or probably they were getting in. At
that time the only persons you saw at the carriage
was Mr. Bond and Mr. Philiman Taylor ? That
is all I recollect; there may have been others.
Did you enter in conversation with the ladies ?
No, sir; Mrs. Massey remarked something or
other about to say to Tom; what she said to me
about it, I have no recollection. That was
a remark addressed to you ? I think it was ; I
can't say for certain. She remarked to you to
see Tom, and what else you don't remember? I
I dont't remember what the words were; the
young lady was crying and I didn't wish to have
anything to do with it. While you were there
at the carriage was Tom. Powers there? I
have no recollection of seeing Tom. Powers at
all sir. While you were there at the carriage,
see if you can't refresh your recollection; did
you hear either Miss Massey or Mrs. Massey say
Tom don't do it, or anything to that effect?
No, sir; she remarked to "me to see Tom; that
she was afraid, as I think about it now, may be I
am giving her statements wrong, but if it is, I
don' t want to be understood that I am going to
tell it for the fact. If you don't know it is a
fact you had better not tell it at all ? She re-
marked to me to see Tom, for lam afraid he will
do some harm ; I wont sajr she ever said that but
I took an inference that she wanted me to see
Tom. And the carriage left before you turned
away from it? Yes, sir ; and after the carriage
left I turned; I intended to have staid there
with the young lady till the carriage went off as a
matter of protection and respect. You say
that William H. Massey, father to this young
lady is not living? No, sir. How long has
he been dead ? Well, it has been five or six
years; he died in 1862—1 think in February or
March. Mr. Mitchell, your store is close to
the market house ? My store, is, I reckon,
vou know pretty much where it is as well as I do.
You are examined for the benefit of the court,
who know nothing about it ? Well, my store
is, counting the corner store, the fourth store
from the south-east corner of the market square;
it would be about a hundred yards. You are
frequently about the market house are you not?
Yes, sir. Is it unusual to see Mr. Tolar at the
market house? No sir; it wasn't unusual at
that time. You know where his place of busi-
ness was ? Yes, sir. Where was it? It
was in the market stall, on the south of the mar-
ket. So his usual place of - business was the
market bouse? Yes, sir; that is the
usual place where Mr. Mimnis had his busi-
ness. Don'tvou know that Capt. Tolar sue-
ceeded to Mr. Mimms in his business? Yes,
sir; I have seen him selling beef there. Did
you carry out that request of Mrs. Massey ? No,
sir; I didn't see Mr. Powers. Did you look for
him at all? I turned at the time she spoke
about Tom, hut I didn't see him. You never
told him the message she gave you ? No,
sir; i never said nothing to him at all.
Re-direct Examination by the Counsel for the
Prosecution.
m
PROCEEDINGS OF A MILITARY COMMISSION,
Are the people who sell beef in Fayetteville
selling all day or only in the morning? It de-
pends entirely on the business if they don't sell
out in the morning they stay there till evening.
Do the butchers keep their stalls there with beef
on them all day ? Some times when they don't
sell out in the morning. Do you mean that W,
J. Tolar was in the habit of being there all day
with his beef at that time? I can't say about
it; I know I have seen him there in the morning,
.find I have seen him there until after noon; I
recollect seeing him there until noon but after
noon I have no recollection of ever seeing him
there. Is not it an unusual thing for the butch-
er's stall to be opened in the afternoon? There
is no regularity in hours for the market; if a man
takes beef in the market and sells it out before
breakfast, all right; if he don't he just stays there
all day or until late in the evening; now Mr.
Bill Mitchell often stays there until sunset, and
brings his beef he doesn't sell out, and leaves it
with mc. He lives in the country don't he ?
He lives out about a mile. Does Mr! Tolar live
in the country ? I think his slaughter pen is
just out at the edge of the town; I think his
residence is near about the edge of the town ; it
may be just in it; I am not positive, but I think
it is just at the suburbs of the town. Did you
see any beef there that day ? I have no recol-
lection about that at all, - Do you have any
reason to know that Capt. Tolar has ceased butch-
ering there of late ? He has ceased to butcher,
there. I am speaking of before he was arres-
ted ? He moved away from Fayetteville in the
spring but what time he moved away I don't know,
neither do I recollect how far back it was that he
brought beef and sold it in the market house. I
cant say positively that he has done it for the last
six months and 1 won't say positive that he didn't
do it. As I understand it you know at one
time he was carrying on the business of butcher ?
Yes, sir. And whether he was at it at this
time, you can't say, with certainty ? No, sir ;
and I won't say he wasn't; I recollect he was do-
ing it last winter for I bought beef at his stall.
You say that as a general rule you have seen him
there in the morning but not in the afternoon ?
I don't remember seeing him in the afternoon,
that I reeollect of. Tht was between three and
four o'clock that the affair occurred, wasnt it ? I
think it was. - You can't recollect exactly what
Mrs. Massey said to you ? I can't recollect what
she said. My impression is she remarked to me to
see Tom and talk to him, but, I won't be positive
that is what she said. To comfort him do you
mean; did you conceive any apprehension that
he was going to attempt something at the time ?
Counsel for the accused objected to the question.
Counsel for the prosecution.
You can't state what she said ? Not positive-
ly. Let it pass then.
Question by the Commission.*
What was the sum and substance of the request
made to you by Mrs. Massey relating to Tom ?
Well, sir, I can't answer with certainty further
than just what 1 was going to 1 ell' you; my im •
pression was that she was afraid Tom would kill
the boy, it was my impression only. You can't
pretend to state the words, but the impression
left on your mind at the time was that she was
apprehensive he was going to get into some diffi¬
culty ? Yes, sir, I can't say now; may be Mrs.
Massey didn't ask me that, but she asked me to
see Tqm Powers and it made this impression upr
on my mind: my impression is that she wasap-.
preliensive that he would do some harm. You
can't tell whether that was your impression at
the time, or what she said, but whatever she
said produced that impression on your mind at
the time? I reckon it must have done it, I
think so now. You think now that is the im-
pression produced upon your mind at the time ?
Yt-s, sir.
Re-cross examination by the Counsel for the
accused:
Was there anything said about doing any dam-
age to the boy at ail? None that I heard of
except what I related that came from the sister
of Mr. Powers. , •
On motion the Commission adjourned to meet
on Tuesday, the 18th instant, at 11 o'clock, A. M.
Raleigh, N. C., Aug. 13, 1867—1-1 A. M..
The Commission met pursuant to adjournment.
Present, all the members of the Commission, the
Judge Advocate, the Counsel for the prosecu-
tion, all the accused and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and ap-
proved.
Samuel A. Phillips, a witness for the prose-
cution, having been first duly sworn, testified as
follows:
Examined by the Counsel for the prosecution.
What is your name? Samuel A. Phillips.
Did you reside in Fayetteville at the time Archy
Bebee was killed ? I did, sir. When was the
first time that you heard Archy P.ebee had at-
tempted to commit a rape upon Miss Massey ?
It was on Monday morning, about nine o'clock,
the eleventh of February. Before breakfast ?
No, sir, after breakfast. Where were you atthe
time? At my store. Do you remember
who brought you the information ? Arehy
Russell first told me, I think. Did you hear
others speaking of it afterwards ? Yes, sir.
Is Miss Massey connected with you in any way?
No, sir. Before Archy was brought out of the
guard house, did you hear any pc rsons speaking
of this affair? I heard a good many say that
he ought to be killed, or ought to be hung. Can
you specify any persons that you heard speak
that way ? I don't know, sir, that I can any
particular persons,.a good many people talked of
it during the day, and I don't recollect any par-.
ticular persons that made the remark. You can't
state any person? No, sir. Did you meet
Tom Powers, or Capt. Tolar, or Monk Julia, at
any time during that morning? No, sir, not
during the morning, that I have any recollection
of. Not before three o'clock in the after-
noon? No, sir. Did you learn at that time
or have you heard since, "and before you came
here, of any agreement, or combination between
any men or set of men, for the purpose'of bring-
ing the prisoner, Archy Bebee, to justice ? No,
sir. You were never any party to any such
agreement ? No, sir. And never heard of
any such agreement ? No, sir. If it existed
you know nothing of it? No, sir. Do you
know what relationship, if any, exists between
Mr. Tolar and Miss Elvira Massey? I have
heard it said since this occurrence that they were
some relation. .Who by? It has been a street
talk* I don't recollect any person. Did you
ever hear it said by any members of his or her
family? No, sir. You don't know anything
about it of your own knowledge ? No, sir, I do
no't.„i At what hour did you first go to the mar-
CONVENED AT RALEIGH, NORTH CAROLINA.
131
kethouse that day? About half past three in
the afternoon. You hadn't been to the market
house before that day ? I think I might have
been up there, I generally tend the market in the
morning; I don't recollect whether I had been
there that morning or not. If you were you
don't recollect it now? No, sir. But you
were up there about half past three in the even-
Yes, sir. Did anjr one go with you ? Yes, sir.
Who was it ? I think Mr. Thornton walked up
from my store with me. What Thornton ?
Jacob Thornton. Did vou both go together in-
to the crowd ? When we got to the east end of
the market house I think he stopped to talk to
some person, and I walked on under the market
house. How far is your store from the market
house ? About one hundred and twenty-five
yards. What street is it on ? Person street.
Which side of the way, right or left ? On the
left as you go down towards the river. You
came to the market with Jacob Thornton ?
Yes, sir. Was there any crowd at the market
house, when you reached there? Yes, sir.
What would you estimate the crowd at? I
would suppose there were some fifty persons.
Did you go underneath the market house, or stay
outside ? I went underneath. Did you have
any weapon at that time with you? Yes, 6ir.
Would you recognise that weapon if you saw it ?
Yes, sir. (A pistol is shown to the witness.)
Is that the one ? It was one of that kind and
size. The same make and size ? Yes, sir, a
Remington. It was one like that, but yon can't
say for certain whether it was the same one or
not? No, sir. Is there no mark about it by
which you could recognize it ? No, sir. It
was admitted by the defence that that was the
pistol.
Direct examination resumed, by the Counsel
for the prosecution:
Your opinion is also that this is the same pis-
tol? Yes, sir. You heard that when you
first went up there that evening ? Yes, sir.
What was your reason for carrying that pistol ?
About ten o'clock in the day or perhaps a little
later, Mr. Wemyss came down to my store, and
was speaking of this affair, and said the trial came
off at three o'clock, and during the time he stay-
ed there he lold me he would like me to be pres-
ent, I told him I would do so. Mr. Wemyss is
an officer? Yes, sir. Where did you carry
the pistol about your person when you went up
there ? I had on an overcoat, I had no belt nor
pocket to put in the sleeve of my overcoat, the
left sleeve. Did you have it out at all, when
you went up there ? No, sir. Did you go
underneath or did you stay out on the pavement?
I went underneath. Did you go in at the east
front? Yes,sir. Who didyou see under there ?
or by the way was Arch/Beebee up stairs when you
got to the market house ? I suppose so. You
saw him come down afterwards ? Yes. sir.
And you didn't see him go up ? No, sir. Your
best impression was he was upstairs? Yes,
sir. Who did you see in the crowd you knew ?
I saw Mr. Tom Powers and Mr. Henrv S.ykes ?
Any one else that you can name? Capt. Tolar,
Edward Powers, Ralph Lutterloh. Was Sam
Hall thereat that time? Not at that jtime I
think. Do you remember any one else ? No,
sir, I can't remember any other persons at that
time. Were those gentlemen underneath the
market house? Yes, sir. Did you have any
conversation with any of them? I don't think
I did at that time. Did you have no conversa-
tion with Mr. Tom Powers? Not at that time,
sir. Nor with any of them that you remember?
No, sir. Where was Capt. Tolar standing when
you saw him ? He was on the west side of the
market house, running north and south, rather to
the west side of the main arch, standing near the
stall he ha'l formerly used for selling beef. Was
he-using that Stall selling beef at the time you
saw him ? I don't think there was any beef
there that evening. Did you-ever see him there
when he was selling beef ? Yes. sir. Did he
wear his ordinary clothes or a butcher's apron ?
I think he generally wore his ^ordinary clothes.
You saw nothing of any beef the're that day? I
don't recollect seeing any. Did yeu see him
sell any that evening ? No, sir. Do you
know whether he was engaged in the business of
butcher at that time? I don't. Do you
know whether he had been engaged^ in the bust-
ness of butcher for sometime previous to that ?
He had before that. Do you know that he had
ceased, or do you know nothing about it? I
know nothing about it. He was standing on the
west side of the southern arch ? On the west
side of the large main arch, running north and
south. In the south-west corner of the market
house? Yes, sir, rather on the south-west cor-
ner. What was he doing there ? He ap-
peared to be as I thought in conversation with
those other men. Which others ? Powers
and Sutterloh. Ed. Powers or Tom? Ed.
Powers. He seemed to be in conversation wi;h
Ed. Powers and Ralph Lutterloh ? I took them
to be in conversation. Were they standing to-
gether ? Yes, sir. Was there any one else
near them, or did the whole crowd stand off from
them? They appeared to be in a group by
themselves. A little off from the crowd ? Yes.
sir. There was a crowd th«re, as I understand
you? Not much of a crowd there at that time.
How many persons do you suppose were inside of
the market house? I dpn't suppose there were
more than twenty-five persons under the market,
black and white. Did you notice how Capt.
Tolar was dressed ? I didn't notice any part of
his dress except his shawl. You said you saw
Tom Powers under the market at that time—where
was he ? He was sitting on a bench, just on the
east side of the main arch. The east side ?
Yes, sir. He was one side of the arch, and To-
lar the other, with those gentlemen ? Yes, sir.
What was he doing ? They Were sitting there.
Was any one with him ? Mr. Sykes I think was
sitting with him. Did you see any one else sit-
ting mere with him ? There were some three
or four others, but I don't recollect who they were.
Do you think you would recollect, if they were
called to you 3 I don't know, sir. You recollect
Mr. Sykes was sitting there ? Yes, sir. Did you
bear any part of the conversation between him
and Mr. Sykes ? I did not, sir, Did you
Lear any part of the conversation between
Capt. Tolar and Ed Powers, and Ralph Lutter-
loh ? No, sir. Can you say with certainty
they were talking to each other ? I can't
say for certain. They were together as men
in conversation ? Yes, sir. You heard
nothing that was said ? No, sir, I did not.
Didyou see anything that made you apprehend
any difficulty at that time ? No, sir. Did
you see any weapons about any one ? No,
sir. Did you see any protrusions about the
men's clothing, as if they were armed, or any-
thing that attracted your attention ? No,
sir. If it existed, it was not evident enough
to attract your attention ? , No, sir. How
..long did you stay at the market house at that
time ? About ten minutes, perhaps, not
that long' I went back down to my store
again jDiH you go from the east end of the
market house ? Yes. sir. You stayed
122
PROCEEDINGS OP A MILITARY COMMISSION,
there how long? About ten minutes, sir.
How long did you remain at your store before
you returned ? I remained there but a very
few minutes; I cant say exactly how long I
remained there; I then walked back to the
market house again; when I got to the market
house the second time, I saw there was a great
many more people than there was when I was
there first. How many do you suppose there
were in the crowd when you got back there ?
A hundred or more. Did you go inside of
the market house- then? Yes, sir, I went
under the market house again pretty much the
same way I did before; Mr. Powers and Sykes
were sitting on the same bench where they
were at first. Did you see Capt. Tolar? I
saw him at that time; I think he was on the
south side of the market house, out side of the
market house on the pavement. Was any
one with him ? No, sir, no person with him
at that time. You went into the market
house, where did you go ? I went to the
centre of the market. Did you stand there,
or speak, or converse with any one ? I stood
there for a minute or two, and then turned
around to where Mr. Sykes and Mr;. Powers
were sitting, and I made some remark to Mr.
Powers, asked him if he was Captain of that
company, or something of that kind; I think
that was the precise words, and he answered
"No." Was there anything peculiar about
Mr. Powers' appearance ? He appeared to
be very sad, like as if he was grieved. He
was quiet, apparently ? Yes, sir. Didn't
relish your joke? No. sir. I want to know
if anything struck you at the time about his
appearance ? The cause of my speaking to
him in that way was, I saw the crowd had
gathered there, and I knew that this girl was
a relative of his, and I didn't know but there
might be some trouble; that was the cause of
my speaking that way to him. Did you have
your weapon then ? Yes, sir. Did you
have it out ? No, sir. Did you see any
weapons at that time, before you left the
market house; I mean while Archy was still
up stairs, and before he came down? Yes,
sir. Did you remain there that second time
until Archy came down ? No, sir. How
leng did you remain there ? I remained there
a few minutes and went back to my store. At
that time, you say Tom Powers and Sykes
were sitting at the same place you first saw
them, and Tolar was on the pavement outside ?
Yes, sir. Did you see anything of Ed Pow-
eas and Ralph Lutterloh at that time, before
you left the market ? Mr. Tolar walked
back under the market, then I saw Ed Powers
come up to him, meeting him like, under the
market; they stopped there for a minute or so,
and then I saw Mr. Lutterloh come up, and
Sam Hall. Did these men have something
to say to one another ? I could not tell
whether they were saying anything or not.
"When you left did you leave them standing
there together ? 1 did, sir. Did you see
anything of John Maultsby there, at all?
No, sir. See anything of Mr. Leggett?
Yes, sir, I saw Mr. Leggett there the second
tiriie. Where was he standing ? In the
group near Mr. Tolar and those other men.
As I understand it, Mr. Tolar came back from
the south end of the market and those others
came together from some other direction?
Prom the west end of the market. Did they
all come up together ? No, sir, I think not.
They came up separately? I think they
did. Did Leggett come up there too? Yes,
sir, I didn't see Mr. Leggett when he came up,
I cast my eyes away, and when I cast them
back there again I saw him in the group; I
didn't notice which way he came from. Then
you went off again? Yes, sir. Did you
see anything of Monk there, that Becond time ?
Yes, sir, as I was coming out the second time-
I saw Monk at the east end of the market,
standing speaking to some person near the-
. east arch. What was he doing ? He was
standing like as if he was having some talk
with him. Now, I want to know if, during
, the short time you were there, you saw any
weapons in the' hands of any one ? I saw
Mr. Ed. Powers have a pistol, sir. Was it
in his hand or in a belt ? He had it under
his clothes, like; I saw the end of it. Did
you see any one else ? I think that is the
only one I saw at that time. Did you see
any knives ? Monk had a knife in his hand
whittling. You went off down to your store
again ? Yes, sir. The first time you came
up from your store; you say Jacob Thornton
came with yon ? Yes, sir. Did any come
up .with you the second tame. No; sir.
Did any go back with you the first tine ? No,
sir. Did any one go back with you the seo-
ondtime? No, sir. How long did you
stay at home, sir ? I just went down to the
store and gave my little boy orders what to do,
I told him to stay and keep the store open—
that I would be back in a few minutes. Then
you left ? Yes, sir. And went back up to
the market house ? Yes, sir; When you
got up there that time, where did you go, in-
side, or did you remain outside ? I stopped
at the entrance of the main eastern arch. Did
you stop at the middle of it, or at one of the
pillars? Nearer the north side of the arch.,,
About at the entrance, near the north side of
the arch ? Yes, sir. Were you standing
at that point when Mrs. Massey and herdaugh-
ter, Elvira, came down ? No, sir, I think I
had moved out on the'out side of the market
when the ladies came.down. How long
were you there, from the third time yon re-
turned to the market house, until the time Ar-
chy came down stairs ? The ladies came down
in two or three minutes after I got to the mar-
ket the third time; then I suppose it was some
five minutes, or perhaps a little more before
Archy came down. You stood a very short
time at the entrance of the market house?
Yes, sir. Where did you move to then, he-
fore the ladies came down ?' I moved off
nearer the edge of the pavement at the east
end of the market. Do you mean directly
in front of the arch? Yes, sir. Between
the arch and the carriage that was standing there
for the ladies ? Yes, sir. How far do you
think you were standing from the pavement ? I
think I was standinng on the edge of the pave-
CONVB&ED AX RALEIGH, NORTH CAROLINA.
123
merit. How far behind you was this carriage ?
The carriage was some forty or fifty feet, perhaps
■more, or perhaps less, I can't be certain about
the distance. Yon were standing there when
the ladies came down 1 Yes, sir. Who came
down with them? Mr. Bond. Any one else,
did you notice ? I don't recollect any other
person. Did they pass by you to go to the
carriage ? Yes, sir. This last time that
you were back there, between the time you got
•there and the time the ladies passed to the car-
riage' did you see any weapons? Nothing more
than the knives; Monk had a knife, and 1 saw
■one or two others have knives, whittling. Who
were the others ? I don't recollect the others, sir.
You saw no pistols in the crowd ? No, sir.
You saw one or two others have knives whittling?
Yes, sir. When these ladies passed out to the
carriage did they pass right by you ? Yes, sir.
Did you have to get out of the way to let them
pass ? No, sirg I was standing rather on the
north side of .the arch. You were on their left
sis they passed you ? Yes, sir. Did you look
sit the young lady ? Yes, sir. Did you keep
your eyes on them until they got to the carriage ?
No, sir. You just looked as they passed? Yes,
■sir. Did you keep your eyes towards the mar-
-ket house? Yes, sir, towards the steps., Af-
•tcr these ladies went to the carriage did you see
amy one else go to the carriage ? Yes, sir, I
saw several go to the carriage, and then come
back again towards the market. Who were
they sir ? I dont remember all of them, I saw
Oipt. Tolar for one, and Robt. Mitchell, I saw
him coming from the carriage, I didn't see him
go to the carriage. Did you see Capt. Tolar
going to the carriage? Yes, sir. Did you
■see any one else ? I saw Mr. David 'Cashwell at
the carriage Did you see what became of Capt.
Tolar after Tie went to the carriage? I saw
him come back to the market house. How long
•did he remain at the carriage ? Not more than
a minute or so. Did he go up to the carriage
and come back? He walked up to the carriage
and stopped like as if he was speaking to the la-
flies a moment or so, and the next I saw of him,
he was coming back towards the market house.
Did you notice where he went then? Yes, sir.
Where did he go? He went under the end of
the market. Did you see where he went inside
•of the market ? No, sir. You lost sight of
him ? Yes, sir. You saw Capt. Tolar go to
the carriage and eome back, you saw Robert
Mitchell go to the carriage, and you saw David
Cashwell at the carriage ? Yes, sir. Did you
see any person conversing with Bond? No, si^.
Did you see any other person go to the carriage ?
I think I saw other persons go to the carriage,
hut I don't recollect who they were. Did you
see John Maultsby go to the carriage? I did
not sir. Did you see Tom Powers go to the
carriage ? I am not certain about that,! could
not say for certain Whether Tom Powers went to
the carriage or not. Yon could not say "he did
not ? No, sir, and I could not say he did. You
have a vague impression ; you would not like to
say one way or the other ? Yes, sir. Those
ure all the persons you can remember at this time?
Yes, sir. I am under the impression that I saw
Mr. Phil. Taylor leave the carriage. Did you
see Tom Powers after you got back to the market
house that third time at all ? Yes, sir. Where
was he then ? He was near a bench there by
Becky Ben's. Did you see him have any wea-
pon then ? No, sir, I did not. Did you see
Monk at that time ? No, sir, not at that time.
Did you see Monk before Archy came down stairs,
after you got back the thix-d time ? Yes, sir.
What was he doing then ? He was standing
near this bench. How far was he from Mr.
Powers ? He was close to him. Do you mean
there were none between them ? No, sir, I don't
mean that, I don't recollect whether there was
any person between them or not. He was pretty
close to him. Did you see anything, after you
came back that time, of Ed Powers and Ralph
Lutterloh? Yes, sir. Where were they?
They were 'near the same place, standing right
under the arch like. Did you say they were
standing right under the arch ? Under the mar-
ket you know. A few steps within the arch
you mean? Yes, sir. Near Becky Ben's
stall ? Yes, sir. You say you saw Tom Powers
standing there, and Monk near him, and EdPow-
ers and Ralph Lutterloh standing in the same
group, standing close enough to have any con-
versation do you mean ? Two or three steps
-off, yes sir. Did you see Henry Sikes at that
time ? No, sir, I did not. Did you sec Sam
Hall then? I saw Sam Hall just before Beebee
came down. Where was he then ? He was
in the .same crowd. Ralph Lutterloh, and Ed
Powers and Sam Hall, and Capt. Tolar and Mr.
Leggett were close to gach other? Yes, sir.
Did you see any weapons in the possession of any
of them at that time ? No, sir. Did you
have your pistol out then? No, sir. Did
you draw it out at that time ? No, sir. You
hadn't drawn your pistol out, np to the fime that
Archy Beebee came down stairs ? No, sir.
Did you see any one come down stams after Miss
Massey and her mother came down, and before
Archy did ? Yes, sir. Who was it. Mr.
Hornrinde. Was that immediately before Archy
came down stairs ? No, sir, it was some couple
of minutes. He didn't form part of the same
escort ? No, sir. Do you remember seeing
any one else come down? No, sir. You
think Mr. Homrinde came down after the ladies
had come down, and before Archy did ? I think
he did. Just tell how the prisoner came down,
who you saw with him, and all the circumstances
connected with it? ,Mr. Hardie came down
first, came, down two or three steps and stopped
on the steps, ,as if looking around to see what was
going on—if anything was going on below, and
then immediately after him came Mr. Wemyss—
he Lad hold of Beebee by the right thumb, had a
string on his right thuml>—and Mr. Eaircloth
was on the other side. Was Wemyss on his
right side ? Yes, sir. And Eaircloth on his
left ? Yes, sir. Did you see any one else in
the group—any other officers ? I don't recol-
lect any other persons. Now Mr. Phillips, I
want you to think well of the question I ask you,
just before Archy came down, during that third
visit that you made to the market house, did you
hear any threat from any quarter at all ? I
don't know that I heard any particular threats, I
saw a sign. What sign. I saw from the
J 24
PROCEEDINGS OF A MILITARY COMMISSION,
looks of the crowd that there was to be something
or other done, but I could not tell what. What
was the peculiarity in the looks of the crowd ?
The peculiarity in the looks of the crowd was,
they wero standing in groups here and there, un-
der the market and outside. Does not a crowd
usually gather there, when there is a trial up
stairs ? No, sir, not such a crowd as that. That
was larger than I had ever seen at a trial. From
the largeness of the crowd, and the way they were
grouped about, you were apprehensive, that there
was some difficulty about to occur? Yes, sir. You
entertained that apprehension before Archy came
down? Yes, sir. You say Hardie came
down the stairs about two or three steps and he
then looked around as if to see what was going
on? Yes, sir. AndWemyss cameout on the
light of the prisoner, and Faircloth on the left;
do you remember any other officers? I don't
remember. You can't say whether there were
or not? No, sir. Was anything done before
Archy got down stairs that you saw ? No, sir;
I didn't see anything done. Were you stand-
ing in front of the large arch ? Yes, sir. On
the edge of the pavement? Near the edge?of
the pavement; I may have moved up nearer by
tnis time. Were you on the pavement ? Yes,
sir. You moved up a little nearer towards the
steps? I think I did. You say you saw no
movement made on him while Archy was still up
stairs? No, sir. When he first got to the
bottom of the steps, did you see anything?
When he got about the erd of Becky Ben's, I
saw there was a rush made at him like. Were
there any shouts or exclamations at the time?
Yes, sir; I heard a voice say, "I demand the
prisoner." Did you hear any other shouts?
I heard Sheriff Hardie speak and tell him, " he
is my prisoner," and " stand back," or some-
thing to that effect. Did you hear any reply ?
I dont recollect of any reply—I heard several
voices at that time. What were they saying?
Demanding the prisoner. It was not a single
voice that you heard demanding the prisoner?
No, sir. It was more than one voice youheard
When I first heard it, it was a single voice.
.Then when Sheriff Hardie replied you heard these
numerous voices? Yes, sir. That was the
general cry, we demand the prisoner? It ap-
peared to be three or four voices. Was there
any profanity used or simply, "we demand the
prisoner" ? I don't remember any other words.
You say there was a rush made upon the priso-
ner? Yes, sir; the crowd appeared to move
up. Do you mean the crowd closed in easily,
or closed in with a rush ? They closed in with
a rush. Did you see who was in the front of
that crowd, nearest the prisoner? I could not
tell. Did you see any one lay hands on the
prisoner, or attempt to grab him, at the time that
rush was made ? I saw a hand—I saw two or
three hands attempt to catch him. Do you
know who they belonged to ? Mr. Tom. Pow-
drs was oneI don't know any other. Did you
see anything of Monk at that time? Yes, sir;
Monk was in the crowd. Do you remember
seeing him ? Yes, sir. Did he have his
knife at that time? Yes, sir. Did you see
any weapon in Mr. Powers hand? No, sir.
Dill you recognize any voice that cried out "we
demand the prisoner" ? I think the first voice
was Tom Powers'. How long have you
known him? A good while. Ten years? I
think I have. Do you know his voice/
Yes, sir. Have you met him frequently?
Yes, sir. I could not swear positively it was his
•voice. It 'yas my impression. Was it your
impression then ? Yes, sir. Did the police
succeed in keeping him away / They succeeded
in pushing the crowd back, and moved on until
they got just at the end of the arch to make a turn,
and there was another rush made. Just as they
were at the ond of Becky Ben's bench this first
rush was made ; they succeeded in repelling that,
and got as far, as the arch—at the turn of the
arch? Yes, sir. And then there was smother
rush ? Yes, sir. Were there any exclama-
Jtions made, or was the language kept up from the
first, in the way of exclamations ? There was
a good deal of noise at that time, and some one
or two voices crying out, " I demand the prison-
er." The confusion was considerable about that,
time? Yes, sir. Iiad you your weapon out
then ? No, sir, just at that time the officers sue-
•ceededin pushing back the crowd, and then I
moved around to my left. Did you move off of
the pavement? Yes,sir. You moved to your
left and rear? Yes, sir. In the second rush
did you see any person who was concerned in it?
No, sir, I coula not tell who was in the second
rush. Did you see any persons among the heads
that you recognized ? Yes, sir, I saw Mr. Tolar,
Tom Powers, Mr. Leggett, and Mr. Ed. Powers.
See anything of Lutterloh or Sam Hall at that
time? At that moment I did not; immediately
after that I discovered they were in a bunch there.
Was that after you had moved, that you discov-
ered that ? Yes, sir. Did vow move out there
after this rush was made ? Just after they had
succeeded in repelling the second rush. Where
did you move to after that time ? did you get sta-
tion'ary after a few minutes? Yes, sir. Or
did you keep moving? I moved to the place
and made a little stop. Where was that place /
It was off to the left. Facing what part of the
market house? About the centre of the pillar
between the two arches, as well as I can recollect.
How many feet do you suppose it was from the
pavement ? I don't think it was more than one
or two or three. You just moved a step or two?
Yes, sir. That was about the time the second
rush was repelled ? Yes, sir, and then immedir
ately they made another rush, and I saw the
sticks of the policemen. I saw them using their
clubs, and I saw them knock a knife out of some
person's hand, or I took it to be a knife. Why
do you say it was a knife ? I saw knives at that
time. Did you see several knives at that time ?
I saw three or four. Were they in men's hands?
They appeared to be cutting at the prisoner. You
saw several knives, that appeared to be cutting at
him at that time ? Some three or four, I can't
say how many. Do you know who had knives ?
I do not, sir, except Mr. Powers and Monk, L
know that they had knives. You know they
were attempting ta use them then ? They were
acting like as if they were trying to cut. Did
you see what sort of a knife Monk had ? No,
sir. Did von see what sort of a knife Powers
had? No, sir. You saw the police using
their sticks? Yes, sir. Was the crowd cry-
ing out at that time, or was it still ?- They were
making a good deal of noise. I don't recollect
any certain words they were speaking at that,
time. They appeared to he using good deal of
profane swearing, " damned if be aint my pris-
oner," or something of that sort. There were
three rushes you say ? Yes, sir, at the time this*
third rush was made the prisoner appeared to-
stumble, or tried to jump or get away from the
officers—either from the officers or from the
knives, I. can't say which—and he stumbled and
went down, or went down from some cause
or other ; be had a stumble aud a fall,, and
about the time they were raising him
up— Did you see any one else fall
with him ? They appeared to fall on their
CONVENED AT RALEIGH, NORTH CAROLINA*
1'25
hands. How many? I think Mr. Wemyss
and Mr. Faircloth both went down with him, and
if I am not mistaken I think Sheriff Hardie
caught hold of him. Did he quite recover him-
self? They raised him up and just as they got
him up he was shot. Had you moved from the
position you last described ? Yes, sir, I moved
still further around to the left. You were keep-
ing almost parallel with the prisoner ? A little
to his front, I think. Where was the point he
was standing when he was shot, according to
your recollection ? I think he was immediately
in front of the little arch, on the south east cor-
ner. About midway of it do you mean ? I
think so. Was he on he pavemeutt or off?
He was on the pavement. Near the edge or
middle or near the market house ? I think he
was rather near the edge of the walk. Did you
6ee Sheriff Hardie at the moment the pistol went
off? Yes, sir. Where do you think he was
standing ? Rather in the rear of the prisoner,
and had hold of him by the collar at the back of
his coat. On which hand ? A little to the
right. Which hand did he have hold of his
collar with ? I could not say, I think it was
the left hand, I can't say for certain. Did you
see Wemyss about that time ? Yes, sir.
Where was he standing ? He was standing to
his left. Were you on trial when Sheriff Har-
die was examined as a witness here? No, sir.
Yoi^didn't hear his testimony? No, sir. You
say Sheriff Hardie was standing in the rear of the
prisoner, and a little to his right? That is my
impression. And you think he had hold of his
collar by the left hand ? I think so. We-
myss was where ? On the left of the prisoner
it appears to me, I won't be certain about that.
Did you see Faircloth at that time? No, sir,
I don't recollect seeing Faircloth at that mo-
ment. When the negro went down they appear-
ed to get decidedly twisted up, in some way, and
I am not certain where Mr. Wemyss was, but I
am pretty certain that Hardie had hold of the
back of his coat, by the left hand. You can't
speak with certainty about Wemyss ? No, sir.
But your best impression is, he was a little to his
left? Yes, sir—I mean a little to his right,
right in front of Hardie. Did you see the man
who fired the pistol ? I did, sir. How close
was he to you ? He was about six or seven
feet. Was he to your right or left ? He was
to my right. On the pavement or off? I
think lie was just off the edge of the pavement.
How far from Beebee? He was pretty close to
him. As far as he was from you ? No, sir.
He was nearer to Beebee than he was to you ?
Yes, sir. How far was Beebee from you?
Beebee was a little nearer to me than the man
who fired the pistol, was. Who was the man
who fired the pistol? W. J. Tolar.. Did
you see the pistol in his hand? I did,
sir. See the flash ? I did, sir. The smoke ?
Yes, sir. And heard the report?' Yes, sir.
Did you see the man fail immediately after
he was shot? Yes, sir. When did you see
that pistol first ? The first time I saw it, it was
immediately before Beebee was shot. As it
was brought to the level ? Yes, sir. The first
thing I noticed of Capt. Tolar particularly was
his shawl on his left shoulder sort of flew up, and
immdeiately after that I saw him level the pistol
at Beebee. " Do you know whether he drew that
pistol from about his person? 1 do not, sir.
Did you see any one hand him that pisto-l? No,
sir. What sort of a pistol was it ? I could
not tell about the size of it; as well as I could tell
in the crowd, it was a tolerable large sized pistol.
Was it as large as this one, (the one presented in
the Court as the pistol Phillips had ?) I don't
think it was as large as that. Did you see it
sufficiently well to describe what sort of a pistol
it was? No, sir. Did you see what Tolar did
with it after he fired ? No, sir, I did not.
Just after he fired your attention was attracted to
him or to the negro ? To the negro, sir: iin-
mediately after the pistol fired there was a rush,
made right up upon the negro, or where Sheriff"
Hardie was, and the officers and 1 thought they
were going to attack the officers, that is what I
thought at the time; I made my way around then
on the south-side of the crowd like, making my
way to the sheriff. Did you make your way to
him ? I got close to him before the crowd was
backed off. Did you have any thing to say to
him? No, sir, I did not speak to him at all.
Did you notice any movement he made just- after
the firing? Yes, sir. What was it? I saw
him put his hand up to the side of his face like; I
thought at that moment that he was shot. Then
did you move around to go towards him? Yes,,
sir. What time did you first draw your pistol ?
It was immediaiely after the pistol fired. Hadn't
you it in your hands before ? No, sir. Yon
are certain about that? 1 don't think 1 had, I
would not be positive about it. Was your pis-
tol loaded? Yes, sir. Your impression is-
you did not draw it until the pistol fired ? That
is my impression. But you do not speak with
absolute certainty about that ? No, sir, I don't.
Did you see what became of Capt. Tolar after he
fired ? I saw him turn around and go back
through the crowd; the last time I saw him he
was about the opening of the arch, the east of the
market. . Did you see who was standing near
him when he fired ? Yes, sir, I saw some stand-
ing near him. Who was the nearest person to»
him in your estimation ? Mr. Edward Powers-
was the nearest one I think. Where was he
standing ? He was standing right immediately
to his rear and right. Was there any person
between him and Ed. Powers? I don't think
there was, sir. Did you see who was standing
in front of him? No, sir. Was there any
person between him and Beebee when he fired ?
As well as I can recollect, sir, there was two men
standing side and side like, and the pistol was-
fired between the heads of those two men, over
their shoulders. Were they colored or white men?
I think they were white men. Those that were
nearest to him in front ? Yes, sir. And you
think Powers was the nearest man on his right,
and rear? Ed. Powers—Yes, sir. Who else
" did you see near about him ? At that time I
saw Mr. Leggett close by, and I saw Mr. Ralph
Lutterloh. Were those men all together.
Right in one company ? They seemed to be in
one company ? Yes, sir. Did you say Leggett?
Yes, sir. Who else? Ralph Lutterloh,
Did you see Sam. Hall at all ? I did'nt see
Sam. Hall at that time. Did you see Sykes at
all ? Not at that time. Did you see the pis-
tol any more after you saw it leveled and fired ?
Soon after the firing I saw a pistol in Mr. Ed.
Powers' hand. How quick after the firing?
It was perhaps a minute or so. Do you know
how long a minute is ? I think so. You
think it was at least a minute/' Yes, sir. As-
long as you could have counted one hundred and
twenty ? I think I could have counted a hun-
dred and twenty. Was he standing by Tolar,
at the time you saw the pistol in his hand, or had
Tolar moved ? . Tolar had moved a little. At
that time did you see anything of John Arm-
strong? X did sir. How near was he stand-
ing to Tolar when the pistol fired ? I don't
know sir, how near Tolar he was; he was pretty
close to him; he was between me and Tolar, rath-
cr in the rear of myself and Tolar but nearer to
120
PROCEEDINGS OF A MILITARY COMMISSION,
Tolar tlian I was. You were only five or six
leet off you think ? Yes, sir. Was he nearer
to you or Tolar ? He was nearer to Tolar than
he was to me. Hid you see any one else that
you recognized near about there, white or black ?
A man they call Galvin Johnson was to my rear,
as I turned around, and a man toy the name of
Robt. Simmons. Did you hear any exclama-
tions in the crowd just after this pistol was fired,
as to who did it ? Yes, sir. What was said ?
I heard some one say in the crowd that Captain
Tolar shot him. Did you know who it was?
No, sir. Did you hear it said more than once ?
1 did not. Was Capt. Tolar in the crowd at the
time ? I don't think he was. Had he left the
place altogether? I think he turned and walk-
ed off towards the end of the market. Did you
see him go away from the end of the market?
No sir. Could any one standing at the end of
the market have heard this voice? Yes, sir.
Xoud enough for the crowd to hear? Yes, sir.
If he was standing at the end of the market he
could have heard it ? Yes, sir. How long
after he fired was it that you heard it ? Imme-
diately after. Before you saw the pistol in
Ed. Powers hands ? It was after that. What
sort of a pistol was it you saw in Powers hands ?
It was a smaller pistol than the one I had, rather.
Was it a larger sized pistol? I could not
say whether it was a large Navy Repeater, or
a 6mall one, it was smaller than mine. Do
you mean a half a size smaller? It was more
than half a size. It was somewhat smaller
than the one you .had? Yes, sir.
According to your best impression, which was
the longer pistol, the one in the hands of Ed.
Powers or the one in Tolar's hands? Accord-
ing to my impression they were about the same
size. Are those the only pistols you saw in the
crowd—your own, Captain Tolar's and the one
you saw in the hands of Ed, Powers ? That is
all I saw. Did you have any other pistol with
you that day, besides this one ? I did not, sir.
Had you any other pistol ? Not at that time,
3 have one now. You had none at that time?
No, sir. Do you know what has become of the
pistol that Mr. Tolar used that day ? I do not.
Have you no reason for knowing? No, sir.
Never heard him say? No, sir. Do you
know what has become of the pistol that Ed.
Powers had that day ? No, sir. You spoke
of having heard one exclamation in the crowd
that Capt. Tolar did it, was that a single exclama-
tion ? It was a single exclamation at that time,
after that I heard several use it. You kuow
when Captain Tolar left the crowd? No, sir I
do not; I know when he turned around and
walked off after the negro was shot. You saw
him go as far as the arch, did you see him enter
the arch ? No, sir. So far as you know he
may have been standing there at that time ? So
far as I know. The last yon saw of him he was
.at that point? Yes, sir. Still in motion?
/Yes, sir, he appeared to be coming towards the
the north corner of the market house. That
was the impression you had ? Yes, sir. You said
something just now about your attention being
attracted just before the pistol fired, by his
shawl—did you see any falling or movement of
the shawl—after the firing ? I don't recollect
after the firing, when he went to turn around the
shawl appeared to fall off one of his shoulders,
like. You have no reason for knowing what
he did with his pi6tol ? No, sir. You could
not assist us in tracing it all? No„sir. Have
you any bullets that will fit this pistol? No,
sir. Do you know what has become of the
loads that were in it that day? No, sir, I
wrote home for them to send the loads that wore
drawed out of it. You say you didn't see Tolar
when he went off, after he got opposite the end
of the arch? I did not. Didn't see him any
more that day ? No, sir. Did you see any-
tiling of Monk after the shooting? I saw
Monk immediately after he was shot, Monk was
in the crowd that made a rush on him after he
was shot down. He wanted to cut his throat.
Did he say any thing of that sort? Yes, sir.
Did he have his knife still ? Yes, sir. Did
you see how he got away ? Mr. Nixon, I think,
was the person that caught him, and told him he
could not do no such of a damned thing. Did
he go off a little then ? He went off. Was
lie still talking? Yes, sir. What we call
"ripping and rarring ?" Yes, sir. Did you see
Tom Powers after the shooting at all ? I don't
reeolleet seeing him after the shooting. Did
you see any of these other men you have spoken
of—do you know what became of Ed. Powers?
No, sir. How was he holding the pistol, down
by liis side? Yes, sir. Was lie talking to any
one ? No, sir, not that I know of. Did you
see him when he went away from that point where
he was holding the pistol ? No, sir. I think
you said you saw Lutterloh and Leggett? Yes,
sir. Did you see what became of them ? No,
sir, I didn't. How long did yon remain there
before you went oil ? I remained there some
five or ten minutes. Just after this shooting
took place did you show your pistol to any qpe ?
Yes, sir, immediately after I had run around as I
told you towards Sheriff Hardie I come back then
and said " the negro has been shot, and I want
you to look at this pistol and see that it has not
been shot;" I held it up in my hand, there was
some three or four looked at it. Did any take
it in their hands and look at it ? Yes, sir. Do
you remember who it was ? I can't remember
who it was. Your pistol had not been fired at
that time? No, sir, it had not. You swear
most solemnly, in presence of Almighty God, that
you did not fire that pistol ? I swear most
solemnly that I have not fired a pistol since then
either; immediately after the firing of the pistol
there was a loud voice in the crowd saying: " any
one that divulges this thing shall share the same
fate that the negro did." Was there any thing
further that can throw any light on this matter ?
No, sir. You heard this voice immediately
after the firing—that any one who divulged this
matter would share the same fate ? Yes, sir:
_there was one thing I left out: before t*he crowd
"came from under the market I heard a remark:
" I hope I wont have to shoot him, hut if I do I
will make it a safe shot." Who was it made
that remark? I can't tell. As Archy was
coming C own stairs ? Yes, sir. You say you
didn't recognize the voice? No, sir. You
can't say whose voice that was ? No, sir.
■Cross examination by the Counsel for the ac-
cused:
How long have you been living in the town of
Fayetteville ? About twenty-two years. Were
you acquainted witb the late William H. Massey,
the father of Miss Elvira Massey? Yes, sir.
Where is he now, sir ? Dead, sir. What was
his business before the war? He was a con-
stable. What was your business ? Constable.
You and Wm. H. Massey were both constables?
Yes, sir. Were you friends ?» Yes, sir: Were
you intimate friends ? Yes, sir. Were there
more intimate iriends than either you or he had
than you were to him and he was to you?
Yes, sir, there were, though we were friendly.
You "were exceedingly friendly? Yes,
sir. Are you the same Sam. Phillips which is
in these charges, and was subsequently released
from prison? I am, ?ir, I suppose so. Don't
CONVENED AT RALEIGH, NORTH CAROLINA.
127
you know it is so? I think I do. Just an
swer truly u hat you know. I know that I was
arrested on the charges and imprisoned. Have
you ever been sworn to this matter before? No,
sir. You were never sworn ? "No, sir. In
no manner, shape or form have you been sworn
about this killing of Archy Beebee before ? No.
sir, except that I was on the jury of inquest.
Then you were one of the Coroner's jury of in-
quest? I was, sir. Which assembled in the
town of Fayetteville the next day after Archy was
killed ? The same day, sir. And the next
day, too ? Yes, sir. Had it session that af-
ternoon, and then adjourned over to meet next
Morning? Yes, sir. Do you remember the
hour it met the next morning? I don't recollect
what hour it was. Before breakfast or after?
I think it was after breakfast. Can you give
the names of any persons who were present on
that Coroner's jury? lean give some: S..H.
Fishblate, Thomas A. Hendricks, Thomas J. Ow-
ens, one of the Williams's, Arthur Williams, I
think it was, James Harris, Silas Sheets—I don't
recollect any other names. Who was the active
man upon that jury in getting up testimony and
examining witnesses ? I don't know who you
may call the active man; I should think it was the
Coroner's duty to do that. I am not asking you
for waat you think ; I ask you who was the most
active man upon that jury ? 'I don't know, sir.
Was there a man more active than Samuel A.
Phillips? I don't know, sir ; I know that 1
was requested by Sheriff Hardie at dinner hours
to get up all the testimony I could. Did you
get up what you could ? I did, sir. So you
were an active man in getting up testimony ? I
got up those who were told me to get up; I done
the best I could at that time. To get up such
witnesses as were suggested to you by others, and
such as suggested themselves to you? Yes, sir.
Who summoned the witnesses before that Coroner's
inquest? I don't recollect, sir, whether it was
the Coroner, or the foreman of the jury. Do
you recollect whether it was Fishblate ? I do
not. Or Phillips? It was not me. Or Mc-
Duffie? I don't recollect. Or Haines? I
don't know, sir. Or Thomas A. Hendricks ? I
don't recollect who it was. But you remember
the jury had a session in the afternoon, and they
adjourned till some time the next morning, and
then had an adjourned session ? Yes, sir I
ask you to pay particular attention to this ques-
tion: I ask you that if, during the forerfoon of
that second session, and before the session com-
menced, you didn't call Thomas A. Hendricks, a
member of the jury, into your store in the town
of Fayetteville, and then and there say to him
these words, or words to this meaning: "Mr.
Hendricks, if you are a friend of mine, you will not
examine those witnesses closely to-day." I did
no such a thing. At dinner hour I had conversa-
tion with Mr. Hendricks; I was pointed to Robert
Simmons; I was told that Robert Simmons knew
who killed the man. You swear positively, in
the presence of your God, that you said no such
thing? I did not, sir. Had the jury ad-
journed at that time ? Yes, sir. I don't care
about that conversation then: bad you had any
conversation with him at anytime, similar to that,
before the jury formed their verdict? No, sir,
I never had before nor since. And you never
had anv conversation with him the substance of
which 1 have giren ? I was going to tell you
the conversation I did have. I don't care about
that, I mean before the finding of the verdict ? I
did not. Mr. Phillips, yon ssy you were sworn
as a juror on that occasion ? Yes, sir, I think
I was; they usually swear jurors. Do you know
the nature of the oath that you took on that occa¬
sion ? • I do, sir. Let us have the substance of
it, if you please? I can't recollect; the sub-
stance of it is, that you will well and truly en-
quire into the case before you. It was the usu •
al oath that the Coroner administers ? Yes, sir-
You have been a constable; you are familiar with
those things, and you think it was the usual oath ?
Yes, sir. Sam. Phillips did you sign the wer-
diet of that Jury ? I did, sir. I ask you now.
sir: how you dared under the sanction of that
oath to sign a verdict, that that man came to bis
death by a pistol shot in the hands ot some man
to the Jurors, unknown ? I have two reasons
for doing that; one reason is according to my
recollection ot the Jury inquest, that you have
nothing to do with what you know yourself, and
you are not compelled to divulge, but it is accord-
ing to the evidence brought before you; my
second reason is, that of hearing this threat that
any persons that divulged anything ot this kind,
would share the same fate the negro had done,
and I hadn't the boldness to come forward and
tell it. You hadn't the boldness ? No sir.
Though you had sworn in the presence of Al-
mighty God to do your duty, you swear here that
you hadn't the boldness ? I had not, sir. I
will ask yon if that jury did not, on that occasion
find that the deceased man, Archy Beebee, came
to his death by a pistol shot fired by the hands of
some person, to the jury, unknown? I think
that is the finding of the verdict. And that
was the finding of Sara'l A. Phillips? Of
course it was, I was in the jury. I understand,
Mr. Phillips, that you say that this pistol (hold-
ing a pistol in his hand) was the pistol that you
had with you that day, and this was the only pis-
tol ? I think that is the same pistol. You
think this is the same pistol and the only one ?
Yes, sir; the only one. Who brought this pis-
tol from the town of Fayetteville to the city of
Raleigh? Mr. C. W. McCoy. Your brother-
in-law? Yes, sir. Will you be so kind as to
tell us how this pistol was charged? Yes, sir;
it was charged with three large balls in three bar-
rels, and the other three were loaded with buck-
shot. A single buckshot in three chambers ?
Two buckshot in each barrel, if I mistake not.
Was there any patching about the buckshot?
Yes, sir. Do you remember what kind of
patching it was ? It was Factory sheeting. It
was Factory sheeting ? Yes, sir. You say
three of the cylinders were charged with two
buckshot each ? I think so, sir. Let us be
particular about that. It was loaded with
buckshot, I am certain; three barrels were load-
ed with buckshot; whether with single buckshot
or two or three, I don't know; my impression is
there was two buckshot, one immediately behind
the other, You swear positively there was two
in each one of the three ? I won't swear posi-
tively; I will swear positively they were lead with
buckshot. Do you swear positively that the
patching which was around these buckshot was
Factory sheeting? * I swear that that was the
kind of patching; it was provided they were the
same loads in it that they were when I loaded itj
they might have been reloaded. Three barrels
you say were charged with balls and three were
shot? Yes, sir. And you sa.y there was
paching around the three barrels that were charg-
ed with buckshot, and no patching around the
balls ? I think not. Mr. Phillips, had this
pistol been discharged at all between that time
and the time that you left Fayetteville? Yes,
sir, one or two barrels. How many barrels ?
I dont recollect how many. See if you can re-
collect? It had been discharged.; all the bat-
rels except two I think. . How long before yon
left Fayetteville were they discharged by you ?
128
PROCEEDINGS OF A MILITARY COMMISSION,
I cant recollect exactly how long; if you recollect
yourself, there was a good many houses breaking
into lately in Fayettville, and it was at that time
I shot off those barrels. Well, sir; did you
shoot off the buckshot loads ? They were all
loaded with balls; with large balls up to that time.
On the day that this shooting of Beebee occur-
red were all these cylinders loaded with large
balls? Yes, sir. And the buckshot and the
patching in the three barrels was put in there
since then? Yes, sir. Then you only .shot
off three barrels and left three charged ? I
don't recollect whether it was three or four.
But you didn't discharge all of them? I dis-
charged some and reloaded with buckshot. In
what condition did you leave this pistol at the
time you left Fayetteville, how many barrels were
charged ? I can't say for certain. Had any
body shot it at all after you. used it ? They
didn't up to the time I left tliere. I mean up
to the time you left, how many of these barrels
were loaded and how many were empty ? I
don't know, sir; I would not pretend to swear.
Were there any loaded? res, sir. Were
there any of them empty ? My recollection is
that there were some of them empty. How
many? I don't reeollect how many. Your
recollection fails you there? Yes, sir. You
don't recollect how many were empty at all?
No, sir. Who emptied these barrels, who fired
off the pistol ? I did it myself, sir. How
long was it before you left Fayetteville that you
fired off any of them ? I don't recollect that.
Was it a week? I don't how long it was.
Was it a month? I don't know, sir. Was
it two months ? I don't how long it was.
Can't you say whether it was a week or a month ?
I can say it was inside of six months. It was
since the killing of Beebe ? After sir. And
after discharging them you didn't load them any
more? I didn't load them anymore except
those three I loaded with buckshot. You didn't
load any of the other cylinders ? I think not,
sir. Did you discharge the other three that
were loaded with balls, or did you leave these
balls in there ? I don't recollect whether I
left these balls in or not; I recollect there was
one of the balls that was in the pistol when I
bought it, but I can't say lor certain if more than
one of the original ones. Can you say that at
the time you left Fayetteville, there were certain-
ly three charges of buckshot in those cylinders
and one ball in another cylinder. Yes, sir.
You can say certainly they were there when you
left Fayetteville ? Yes, sir. Were those old
loads? The charge of the ball was an old load,
those that were loaded with buckshot, 1 loaded
myself this spring. I want to know whether
you are certain that there was only one cylinder
charged with ball? I can't say for cer-
tain. And you discharged them yourself?
Yes, sir. When you discharged the pistol at
the last time before leaving Fayetteville, did you
remove the cap from the nipple of the barrel that
was discharged. I don't think I removed
.moved any cap. I am speaking of the
cap from the pistol barrel, the barrel you fired ?
I dont think I did remove that. Have you any
recollection about that at all ? No, sir; no
more than just this, that I hardly ever do remove
the cap. You have no recollection whether you
removed the cap or whether you did not ? I
have not sir. What do you call this pistol ? I
call it a Remington pistol. What size do you
call it ? I call it a Navy repeater ; I don't know
whether that is proper or not. You dont call
it an Army repeater ? I always called it a
Navy repeater. Now, sir, while we are upon
that subject, take this pistol and look at it and
tell me how much shorter the pistol that Ed Pow-
ers had, was than this one ? I can't tell you
that. Come at it as near as you can. I have
done that; I think it was shorter. Do you think
it was a size smaller ? I can't tell; I didn,t
measure them. It it your impression that it
was two sizes smaller ? I know it was smaller.
Is this about the size of Tolar's pistol ? I think
the size of that Tolar had was pretty much the
same size of the one Powers had. Then you
say the pistol Tolar had was a smaller pistol than
this? Yes, sir. Did you see it distinctly,
the one Tolar had ? I saw it in his hand when
it was levelled at the negro. And you think it
was not as large a pistol as this ? I dont think
it was. Do you know what name they call
such a pistol as the one Tolar had ? No, sir;
I don't. You don't know whether it was a
Remington pistol ? It was not if I understand
the way the Remington pistols are made if they
are made like that one it was not a Remington
pistol. Was it a Colt? I don't know sir.
Did it have a round barrel ? I will show you
the difference; I think the cylinder of the pistol
was marked; had no top piece on it like this one
has. You are sure it was'nt one of these pat-
terns ? I am pretty confident it was'nt. You
say you'went up to the market house first at the
time Archy was up stairs ? Yes, sir. How
long did you stay there before he was brought
down ? I don't know sir ; it was about half
past three when I went up first. At that time
you say you saw a crowd of thirty or forty or fifty
people ? Perhaps fifty people. Did you
notice anything unusual in that crowd at that
time ? No, sir; I did not. I think you say
you saw at that time Capt. Tolar standing to the
north of the southern-most arch? The first
time I saw him he was standing at or near the
bench where he sells beef. That was to the
west of the southern-most arch ? Yes, sir.
Inside or outside ? Under the market. Do
you know whether Capt. Tolar kept a desk there ?
Not at that time. Did you see him up about
the desk or was he nearer down towards the end
of tha stall ? He was on the outside of the beef
stall.1 What was he doing then? He ap-
peared to be moving from towards the west end
of the market. Who else did you see and re-
cognize on that occasion ? I saw Mr. Ed Pow-
ers, and Mr. Leggett and Ralph Lutterloh. Did
you leave them there when you went back ? I
am under the impression I did, but I can't say for
certain as to that. You spoke of their talking
together ? No, sir; I don't know whether they
were talking or not. You didn't see them talk-
ing ? They were in a group, close together.
No other person around them ? No, sir. Did
you see anything of Maultsby at that time, or
Tom Powers ? Yes, sir. Anything of Monk
I didn't see him the first time. What was
Tom Powers doing ? He was sitting on a bench :
him and Henry Sykes together. You said there
were other persons there whose names you don't
remember ? Yes, sir. Do you know Jim Jones ?
Yes, sir. Did you notice him sitting there ?
I don't think he was. Did you have the pistol
with you at that time ? Yes, sir. You went
down to your store and remained there a short
time and returned, bringing the pistol back with
CONVENED AT RALEIGH, NORTH CAROLINA.
129
you? Yes, sir. "Was that pistol cocked?
No, sir. Had the crowd increased any when
you got back the second time?" Yes, sir.
llow much larger was it than it was at first ? It
appeared to be twice as large. Did you notice
these same persons there when you got back the
second time ? I noticed when I got back the
second time they were in the same place; Mr.
Powers and Sykes, I think, were in the same
place. Where did you see Mr. Tolar ? If I
mistake not, he was on the south side of the mar-
ket on the pavement. Any body with him ?
Ne, sir, I don't think there was any person with
him at that time. Where were Hall and Ed
Powers, and Lutterloh at that time ? I didn't
see them at that moment. Did you see them
at all, before you left the market that second
time ? Yes, sir. Did they get with Tolar
again ? They were close to him. Where
were they standing then ? They appeared to
be standing close by where they were at first;
Tolar moved around from where he was on the
pavement under the market house, slowly. Did
you leave them standing there when you went off
the second time ? I think they were close by.
I can't say for certain whether I left them right
there or not; my attention was not entirely upon
that group. How long was that when you
went off the second time and left them standing,
before Beebee was brought down stairs ? I
can't tell, sir, I went back down by the store and
remained there a few minutes and then re-
turned; I was at the market house after I re-
turned, before he was brought down. Do you
think it was ten minutes? Yes, sir. Do
you think it was a quarter of an hour ? I
wouldn't be surprised if it was. Was it half
an hour? I think not, sir. You are certain
it was not half an hour 1 I don't think it was.
When you come back the third and last time,
where did you find them standing? Near
Becky Ben's stall, all of them. Just name
them over? I can't name every body; I
know Captain Tolar was there, and Ralph
Lutterloh, Ed. Powers, Leggett, Sam. Hall, if I
recollect right, came up in a minute or so after-
wards from towards the west end of the market.
And they were all grouped together? They
were all around pretty close there; were some
twenty-five or thirty of them around there togetli-
er. So at that time, though they were standing
together, twenty or thirty made up the crowd ?
Yes, sir. Was Capt. Tolar standing there when
you came up the third time ? Yes, sir. How
long had he been there before Mrs. Massey and
her daughter were brought down ? It was some
four or five minutes, perhaps. At that time I
understand you to say that you were standing a
little off the pavement, opposite the center of the
main eastern arch? Yes, sir. At the time
they came down;? Yes, sir, I think I was stand-
ing near the edge of the pavement. And the
carriage, you think, was thirty or forty feet from
you? Yes, sir. To your back ? Not ex-
actly to my back, nearly to my side; I was stand-
ing facing in towards the steps. Miss Massey
and Mrs. Massey and Mr. Bond came down the
steps and past out of Becky Ben's stall across the
pavement, passing by you and u ent to the earn-
age ? Yes, sir. Did you turn around and see
them get into the carriage ? I did not. How
long was it after they had been to the carriage
before Capt. Tolar went out to the carriage ? I
don'tknowexactlyhowlongitwas; itwas ashort
time. Where did Tolar come from when he start-
ed to go to the carriage? I don't recollect that.
You don't recollect whether he left that entrance
to Becky Ben's stall and went there ? No, sir.
When Sid you see Tolar first go to the carriage ?
He was close to the carriage when I saw him first.
On which side of the carriage did he go; the side
which was next to the market house, or the side
which was further down. There was not either
side next to the market house; they were standing
with the horses next to the market house; he went
on the side towards Davis' store. Were the
curtains of the carriage up ? The front curtains
were up, I think. Do you know whether the
side curtains were raised or not ? The side cur-
tains in front I mean. You think the side cur-
tains in front were up ? That is my impression.
There is no doubt but that Tolar went there ?
No, sir, You are very certain of that? Iam,
And you think he went on that side that is down
towards Ichabod Davis'? I can't say forcer-
tain; I thought he went on that side. Did To-
larturn around and look into the carriage? He
appeared to be speaking to the ladies. Did you
see him leaning inside of the carriage ? I don't
recollect whether I saw him leaning into the car-
riage or not, but I was under the impression he
was speaking to the ladies. How long did Tolar
stay there at the carriage? He didn't stay there
but a very short time. How short ? I can't
tell exactly. Was it a minute? I don't
know, sir, I think it was likely. Who was there
at the carriage besides Tolar at that time ? I
don't recollect at that time, I recollect seeiDg Da-
vid Cashwell at the carriage, and if I am not mis-
taken, I think I saw Philliman Taylor come from
the carriage; I saw Robert Mitchell come from
the Carriage. At the time Tolar was at the car-
riage, you say you don't remember to have seen
anybody else there at all? There were some
persons there/but I don't recollect who they was.
Was it a man or a woman? It was a man.
Wa it a white man or colored man ? I don't
recollect that. Do you know how he was dress-
ed? No, sir, I have no impression about it. I
understand you now Mr. Phillips to swear that
you have a distinct recollection, and that you can't
be mistaken that Capt. Tolar did go to that car-
riage ? I am confident that I saw him at the
carriage, sir. When he came away from the
carriage, where did he go? The next I saw of
him he was under the market house. Did you
see him when he came away from the carriage?
I saw him under the edge of the market. Did
you see him when he turned off from the carriage
to go under the edge of the market? I don't
think I did. And the next you saw of him he
was under the edge of the market ? Yes, sir.
What edge? At the eastern end near the arch.
What part of the arch ? The south-east, nearest
to the central part, I can't place him exactly,
he was in the eastern end of the main arch running
east and west. Was he up against the bricks ?
My impression is that he was nearer the north
side. Do you remember whether he was leaning
against the pillar or not ? I don't know for eer-
tain. That I understand you to say was before
Beebee was brought down stairs? " Yes, sir, a
very short time. How was Tolar standing at
that time? I think he was standing on his feet;
that is all the way I can tell. Youyhinkhe was
standing on his feet ? Yes, sir, I should suppose
be was.. Perhaps he was standing 011 his head,
did you see anything about his arms or hands ?
No, sir, nothing peculiar that I know of. Did
you notice whether his hands were hanging down
by his side? No, sir, I can't tell whether ha
had them in his pocket or hanging down. You
PROCEEDINGS OF A MILITARY COMMISSION,
didn't notice where his hands were ? No, sir.
Don't you remember seeing him have his hands
under his shawl ? No, sir, I don't. Was there
anything in Tolar's manner at that time that at-
tracted your attention ? No, sir, nothing pecu-
Har that I know of. Where were you standing
then; at the .same position off the pavement ? I
think I was standing on the pavement at that
time. You think you had got on the pavement
at that time ? About the edge of the pavement.
Opposite the center of the main arch ?' I think
it was more to the north side of the arch. You
are very certain of that are you ? I think it
was nearer the north side than the south side.
From the position you occupied then did you have
a perfect view of Beebee and the party that was
coming down stairs ? Yes, sir. From that
position then did you go up tow ards the north
portion of the eastern arch, and look towards those
stair steps? Ye3, sir. Was that bench of
Becky Ben's a cake bench as you call it directly in
your line of sight ? Yes, sir. You were here
in this room I think at the time John Armstrong
was examined? Yes, sir, I was. Ana
you heard his testimony ? Yes, sir. I
ask you, sir, if at that time when the boy was
just being brought down stairs if any one jumped
upon that bench of Becky Ben's and cried out,
look out boys ? I have "no recollection of see-
ing anything of that kind, sir. And it was di-
rectly in your line of sight? Yes, sir. You
saw nothing and heard nothing of that sort?
No, sir. Do you know John Maultsby well?
Yes, sir. Is he a tall or short man ? He is a
tall young man. Did he jump upon that bench
at that time, and make that exclamation ? I
have no recollection of that sir. And you say
Beebee came down the steps; Mr. Wemyss on
the right hand and Faircloth on the left and Har-
die in front ? I think Hardie came down in
front. I understand you to say you were not
here on trial at the time Hardie was examined ?
I don't know sir. Have you read his testimony
in the papers since that time ? I forget wheth-
er I did or not—if it was in the paper I think 1
have read it. So you put Mr. Hardie in front ?
Yes, sir. And you say when he got down near
the foot, he took a survey of the crowd ? When
he got down a step or two, he stopped between
the turn and the bottom of the steps. Was
there anything unusual in the. crowd at that time?
There was a great many people gathered right
about Becky's bench. I think I understand
yon to say in your direct examination that then
you discovered signs of excitement ? There
was a great many gathered all around that bench;
of course that is the sign I saw. That was the
only sign that you saw ? I can't say that, be-
cause another sign of excitement I saw, was some
three or four men have knives whittling—they
appeared to be waiting to see the prisoner come
down. Do you think a man is excited when he
is whittling with his knife ? Not every time—
sometimes they are. I ask you if that whittling
with the knives attracted your attention as indi-
eating an excitement in the crowd at that time ?
It did at that time. To* see three or four men
whittling at sticks with these knives is a sign of
excitement. Under them circumstances ? Yes,
sir. And the gathering of the crowd up to-
wards the foot of the steps and the seeing of three
or four men whittling with knives on the sticks
were the signs of excitment you saw in the crowd ?
Yes, sir; and the natural appearance of the crowd
that had gathered there at that certain point.
When did you say the first rush was made upon
the prisoner ? It was made after they got off
the steps before they got to the turn of the arch.
And you then beard this crying out, *' I demand
the prisoner "? Yes, sir. Are yon certain
those are the words " I demand the prisoner"?
Yes, sir. You can't be mistaken ? That was
my impression; that those were the precise words.
And you think a hand grasped at the prisoner ?
Yes, sir; I saw more than one hand. The par-
ty then was thrown back, and they came along
out until they got near that southern portion of
the Eastern arch before you saw the next rush
made ? Near the turn sir. Where were yon
standing, at the time; had yon shifted your posi-
tion at all ? I had moved a little to my left at,
that time. That made you a little lower down ?
A little lower down to the left. Still off the
pavement ? Yes, sir \ some foot or two. And
that brought you down opposite the center" of the-
main eastern arch ? It brought me rather to
the south. Rather to the south than the cen-
ter? Yes, sir. There, you say, the second
rush was made ? Yes, sir. Was Capt. Tolar
in either of these rushes sir ? I con't say for
certain, that he was. I ask you if at the time
those other rushes were made you saw Capt.
Tolar at all ? I don't think I did. Yon think
you saw him at neither of those times ? No,
sir. Did you see Ed Powers ? I don't think
I did. Sam Hall ? No, sir. Balph Lut-
terloh? No, sir; I dont think I saw either of
them in those rushes ; not to tell them from oth-
ers. Did you see Tom Powers in either of those
rushes? Yes, sir. Which one; the first or
second ? I saw him in the first and second.
Did you see Monk in either of these rushes ? I
saw Monk in the second; I did not see him in the
first; I noticed in the first rush that he was rath-
er in the rear of the main rush, but was not in
front of the rush. Then Beebee was carried
down, to the point where he was shot ? When
the second rush was made I saw the police clubs
used. Up to that time you hadn't drawn your
weapon at all ? No, sir; I think I hadn't though
I cant say for certain that I hadn't. Well sir;
how.far had Beebee got down the pavement before
he made this struggle that you speak of ? when
Wemyss and he fell down on the pavement ? " It
Was immediately after turning the arch. A
step or two after turning the arch? Yes, sir.
When he went down did you loose sight of him ?
I lost sight of the entire party; I could see the
bulk below. When he was raised up you say
you think Wemyss was on his right hand ? That
is my impression ; rather in front to the right;
Sheriff Hardie I think was rather in the rear to
the right. That would have taken Hardie rath-
er nearer to the wall of the market house than
Beebee was ? Bather nearer. How much
nearer clo you think Hardie was to the wall of the
market house than Beebee ? It was very little
differance; they were very close together; he
appeared to he helping to raise Archy up. Are
you certain at that time Hardie had him in his
left hand in the back of the collar ? I think he
did. You are certain it was back of the coat
collar ? I think it was. Don't you know it
was in front ? I don't know. Don't you
know it was in front of the comfort around the
throat ? No, sir. You know it was at the
back ? I don't say I know; think it was at the
back. Now at the time Beebee was shot where
were you standing? I was standing off the
pavement sir; some two steps or so. What
CONVENED AT RALEIGH, NORTH CAROLINA.
131
do you mean by that; six feet ? No, sir, it
was not six feet, I reckon. About bow many
feet was it off the pavement ? I can't say for
certain how many it was; a short distance though,
from the edge of the pavement. Was that op-
posite the lower small arch or opposite the main
arch or where ? My impression was it was very
nearly opposite the center of the small arch. It
was opposite the center of the small southern
arch ? I think it was very nearly opposite the
center of the small arch. Now at the time Bee-
bee was raised up, which way was his face turned ?
I think his face was rather to the corner of the
market house. It was not down the pavement ?
I think it was rather turned in towards the corner
of the market. Then you think instead of look-
ing to the south west? I think he was rather
looking south he was looking to the south-west.
You are certain his face was not turned due south
towards the guard house ? I don't think it was
turned due south. Did you have your pistol out at
that time ? Just immediately after he was shot.
I mean just at the time he was shot ? I don't
think I did. How did you hold your pistol when
you had it out ? I held it by the hilt as other
folks do. You held it down by your side ? I
don't recollect whether I had it up or down. Did
you hold it in one hand or both ? In one band, sir.
Don't you know you held it in two hands ? No,
sir, I don't know. Did you or did you not ?
I can't say sir. Did you cock it ? I don't
recollect about that, sir. Directly after the
tiring was over did you rub it ? No, sir; I did
not. Didn't you rub the smoke and dust off of
the cylinder ? I did not sir. You didn't
rub it at all ? I did not sir. Becbee was
raised up and then you saw Capt, Tolar ? Yes
sir. You don't know where he got the pistol
from ? I am not certain where he got it from.
Did you see him take it from any part of his per-
son ? It was my impression he took it from
his left Ride under his shawl, by seeing his shawl
move back and his hand come out with the pistol
in it. You think the hand come out from un-
der the shawl ? I think it did. Did you see
him cock his pistol ? I don't recollect. You
were looking at him close were you not ? Yes,
sir. About how many feet off ? I can't say
for certain ; it was a short distance though. Did
he throw the pistol up, to level, and fire, or did he
throw it above the level and then draw it down ?
My impression is he took liis hand from his left
side, and put it right there between two men's
heads. You say you saw it fired ? I saw
him fire. You saw the smoke ? Yes, sir.
From the muzzle ? Yes, sir. From the tube ?
I can't say whether I saw it from the tube or not.
You saw the flash ? I did sir. And you
swear that he shot that pistol ? I swear it was
in his hand. And that there was no other pis-
tol fired that day ? Not at that place. And
you say at the time of the firing there were how
many between Tolar and Beobee ? I think there
were two standing; one on one side and one on the
other And the pistol was fired over their shoul-
ders between the two heads of the two persons ?
Yes, sir. Just name these persons, or either
of them? I can't do it, sir. Were they colored
or white persons ? I think they were white.
Did they lean aside to the right or left ? I think
they leaned their heads off a little. Did Tolar
say anything ? I don't recollect hearing him
make any remark at that time. I mean when
he was going up, or just before he shot, did he
make any remark at all ? I didn't hear him
make any remark. When he came up to that
position did he come rushing ? He didn't come
rushing particularly; he came up through the
crowd. Were you looking at him at that posi-
tion ? I was sir. Did you see all that he
did ? I don't know that I saw all that he did:
You saw no rushing up there on Tolar's part ? I
saw him come up through the crowd. Did he
part them to the right and left as he came up ?
He must have parted them; I didn't see him. I
ask you for what you saw, did you see him lay
his hand upon a single man as he came up ? I
don't recollect seeing him lay his hand upon any
person. Either his right hand or his left hand ?
He may have done it; if he did I didn't notice it.
Mr. Phillips, who was the man standing immedi-
ately upon his left at the time he had his pistol up
there ? To his front ? I don't care where,
so that you put him next to his left ? I can't
tell who was the man immediately to his left.
Who was the man immediately to his left and
front? I don't know, sir. Was John
Armstrong the man ? ' I can't recollect, sir.
Did you see John Armstrong that day ? Yes,
sir. Did you see him there at that time ? I
saw him immediately after the negro was shot.
Did you see him there at that time ? , I saw
him immediately after the pistol fired. You
havn't answered my question; did you see
him there immediately at that time ? I have
no recollection of seeing him there immediately
at that time. Did you see Jim McNeil there
immediately at that time ? No, sir. Jim
Douglass? I saw him immediately after the
firing, but just as the pistol was fired I didn't
see him. How many men were between you and
Capt Tolar ? I can't tell, sir. Were there
any ? Yes, sir, I think there were.' Were
these black men or white men ? I think there
were some of both. Can you name one of
them? No, sir, I can't. Can't you namo,
one of those men ? No, sir. Was there any
person between you and Beebee at the time Bee-
bee was shot ? Not immediately between me
and Beebee. A little to the front and right of
you, or a little to the left and front of you ? I
think there were persons both side of me. Can
you name one of them, either white or black ? I
can't. What became of Tolar after he fired
the pistol ? The last time I saw him he was
opposite the mouth of the big arc ). Which
way did he turn ; did he make a right wheel or a
left wheel? I can't recollect about-that. You
say when he drew his pistol his shawl fell off of his
left shoulder ? I didn't say that. What did
you say ? I said I saw his shawl move back.
Did you see anything about Tolar's sliawl when
he turned off ? If I am not mistaken, I thought
his shawl moved either on one shoulder or the
other, and I forget which. What do you mean
by moving ? Sort of • dropping down. It
didn't drop off the shoulder ? I don't think it
dropped clear off at the shoulder. Did you
see him throw the shawl as he turned around ?
I don't think he did. You saw nothing of it ?
133
.PROCEEDINGS OP A MILITARY COMMISSION,
No, sir. As he turned off to leave that posi-
tion, did he go around the crowd or did he pass
directly through it ? I think he passed direct-
ly through it. Coming from his position di-
rectly through the crowd up to that main eastern
arch of the market house ? That is my impres-
sion, sir. Do you know a man, black or white,
■who was standing there near Tolar at the time he
turned around ? Mr, Ed. Powers was stand-
ing close by him, when he shot. I mean at the
time he turned around to go back to that eastern
arch ? I don't recollect that I can call a man,
to swear positive to, at that moment. That
crowd which was there that day, was it compos-
ed of Laplanders and strangers, or was it com-
Sosed of citizens of the town of Eayetteville ?
Cost of it was composed of citizens of the town,
of course. Are you not well acquainted with
the citizens of the town? Yes, sir. And
in all that crowd, at these different times I
have asked you about, it is impossible for you
to name one man ? It is impossible for any
man to remember all the circumstances that
took place in a crowd of that kind. Now,
when Capt. Tolar went back to that arch, did he
stop there? I don't know, sir. Did you
lose sight of him ? The last I saw of him I
think he was right in front of the eastern end
of the market; rather nearer the northern
edge of the tig arch. On the pavement or
■off? On the pavement. "Walking? Yes,
sir. Which way? Towards the north
Bide of the arch. Of the big arch? Yes,
eir. Was it before Captain Tolar got out of the
way or after, that you made the exhibition of
your pistol, and called upon them to look at it ?
I think it was alter he moved off. Where
were you standing at the time you made that
flourish with the pistol and called upon the by-
standers to take notice of it ? I was stand-
ing at that time down nearer Draughon's cor-
ner. About how far from the place where
you were standing at the time of the firing ? I
come three or four steps from where I was
first standing. And you called upon the
crowd there to look at that pistol? Yes,
sir. Why did you do that ? I did it because
I knew that the crowd had seen me with a pis-
tol; I didn't keep my pistol concealed at all; I
wanted them to be certain I didn't fire it. You
did it for the purpose of furnishing proof that
♦you hadn't fired it ? Yes, sir. And you say
there was a good many persons standing around
you at that time? Yes, sir. Some of them
took ,the pistol in their hands? Yes, sir.
Now just name one of them that were standing
about there ? I can name one that I saw stand-
ing up there. Jim. Douglas was one. Did he
take it in his hands ? No, sir, I don't think he
did. Name one of them that had it in his
hands to examine it ? I can't do it, sir. And
still you were exhibiting it there for the pur-
pose of proving that you didn't fire it, yet you
don't recollect a single man that had it in his
hands? No, sir, I don't. Not one? No,
sir. You were very particular about this mat-
ter, you spoke of it afterwards ? I spoke pf it
in my store. Who did you speak of it to,
sir. I don't recollect all, there was some two
or three persons in the store. You can't name
one of them—your nephew, Jim. Kendricks, was
one; can't you name others? I don't know
even that he was one until I heard him say so.
Was Dave Oliphant there ? I don't recollect
whether he was there or not. You recollect
what hour that afternoon you saw Dave Oli-
Ehant? No, sir, I don't Do you recollect
aving seen him at all that afternoon? I doh't
recollect at all. And you say you showed
your pistol the second time? Yes, sir.
What remark did you make when you showed
it that second time at your shop ? I don't re-
collect any remark I made. I think though
that I remarked the negro was killed, and that
there would be trouble ; I said I wanted them
to see my pistol hadn't been fired. Did any-
body take hold of it and examine it ? I
should think Kendricks took hold of it; I
know it passed out of my hands ; I think they
were looking at it. Didn't you say just
now that you didn't know Kendrick was there
at all till he told you so ? I say I forgot it
entirely till he told me he was. And now
you say you think Kendrick had hold of it; it
didn't leave your hands at that time? Yes,
sir, it leit my hand. You think Kendrick took
it out of your hands ? I think he took it in
his hands. Did he examine it? I sappose
so; I don't know that he did, but I would sup-
pose that he did. How many persons did you
say were at your shop then ? I don't know,
sir. How long was that after the killing had
occurred. It was only a very short time.
Put in minutes and hours ? 1 can't do it, sir.
Was it five minutes ? It was not as much as
an hour. And of those persons who were
there in your shop that you were showing the
pistol to, you don't recollect a single other per-
son except your nephew, Jim Kendricks ? No,
sir. Not another one ? No, sir. Are you
well acquainted with Captain Tolar ? I have
known him for some eighteen months, and per-
haps a little longer than that; I am not certain as
to the time I have known him. Do you know
him well ? I know him when I see him, I have
no particular acquaintance with him. Just
now when you said you heard a voice saying, " I
hate to shoot him, but if I do have it to do, I
will make a safe shot,"—whose voice was that?
I don't know, sir. Did you think at that time
you had ever heard that voice before ? I don't
know, sir, whether I did or not; I don't pretend
to say who it was. What time do you think that
was, that you heard that voice ? It was imme-
diately before Beebee was brought down the
steps. Did that voice proceed from the
crowd ? Yes, sir, from the crowd on the in-
side about the bench. In a loud tone of
voice? It wasn't very loud or very low; it
was so that I could hear it very distinctly. How
many persons were between you and the voice ?
I don't know, sir. Were there any ? Ye6,
sir. Were they black or white? Black and
white, all mixed up together. Were there a
good many or only a few between you and the
voice ? Where the voice came from I can't tell;
I knew the voice came from where the crowd
was standing. Can you tell one person who
was closer to the place where the voice came
from than you were? Yes, sir; I can name
Mr. Leggett. And it was so spoken out that
you could hear it ? Yes, sir. As loudly as I
am speaking now ? No, sir, I think not. Did
you see Sheriff Hardie summoned about this bu-
siness before the coroner? Yes, sir. Was
his testimony substantially the same as he gave
in here? I don't recollect, sir; whether it
was or not.
Re-direct examination resumed by the Counsel
for the prosecution:
I understand you to say you saw Ed. Powers
standing to the right and rear of Capt. Tolar
when he fired ? I did, sir. I understand you
to say that subsequent to that time you saw Ed.
Powers with a pistol in his hand? Yes, sir.
And immediately after the firing? Yes, sir.
Was he standing in the same spot at both times?
I think he was, sir. The Counsel for the defence
CONVENED AT RALEIGH, NORTH CAROLINA.
133
has dwelt upon your statement that the time
these rushes were made, you saw signs of excite-
ment in the crowd ? Yes, sir. You testified
that there was an impression in your mind that
the crowd was excited? Yes, sir, I had an
impression. That was what you thought then ?
Yes, sir. You don't pretend to state what
the reasons were you thought so? No, sir.
Have you ever analysed your judgment to find
why you come to your conclusion; have you ever
thought over every reason that you had for it ?
Yes, 6ir. Well, sir, now tell me every reason
you had for that opinion as if you were sitting
down to state why you entertained that opinion ?
One reason was I had heard a great deal of talk-
ing around through the streets concerning this
matter. You went there having heard this
talk ? Yes, sir. I understand you to say
you saw these groups of men there ? Yes, 6ir.
You saw these men whittling with their knives ?
Yes, sir. You saw the crowd; the expression
of their faces ? I think so. At any rate you
imhihed the impression that a difficulty was
about to occur ? Yes, sir. Mr. Phillips, did
you have any conversation with Mi*. Hendricks
about this matter at all ? Yes, sir. When
was it ? At dinner hour, when the coroner's
inquest adjourned. Was it in connection with
this affair ? Yes, sir. Did you have any con-
versation beside this one at the dinner hour of
the second day? No, sir. I call for that
conversation.
The Counsel for the accused objected to the
question.
Counsl for the prosecution:
I will state, if the Court please, the hearing of
this question: The Counsel in the cross examina-
tion did as the law requires he 6hould.do. He
proposed a question to the witness, whom he is
assailing, with a view to contradict him hereafter;
and in proposing that question he asked him if
he had a certain conversation with Thomas A.
Hendricks. His first question is carefully word-
ed; he says: Did you, at a certain time—naming
the time—have a conversation with Thomas A.
Hendricks, of a certain character—stating it.—
The witness says he had no such conversation;
hut he goes on to say he had a conversation at
some other time. But,' says the Counsel for the
defence, stop ! we don't want that. Then after-
wards he asks a general question: if he had no
conversation with Mr. Hendricks,—not confining
it to the time and place first named,—if he had
no conversation with Mr. Hendricks of the char-
acter stated.
I insist upon it, under these circumstances, the
witness having had a conversation with Mr. Hen-
dricks of some sort, he is entitled to state what
it is. The aim of the Counsel is to bring Mr.
Hendricks in, to prove that he did have a conver-
sation of some kind with the witness, and I think
it is due to the character of the witness, and due
also to Mr. Hendricks, that a statement of the
actual conversation, which this witness admits he
had, should be made, so that Mr. Hendricks may
have an opportunity .©f correcting himself^—if
he be incorrect,—as to the time the conversation
took place; that this witness may have an oppor-
tunity of showing what the conversation was
that he had with Mr. Hendricks, and that this
Court may be at liberty, when the two statements
come before them, to decide what the actual con-
versation was.
In common fairness to this witness, he ought
to be permitted to 6tate what the conversation
was which he had with Mr. Hendrieks. He was
about to explain; he was interrupted; and then
a general question was asked him as to whether
he had any conversation with Mr. Hendricks, at
any time, of the character named.
If the Counsel had confined himself to the first
inquiry as to time and place, circumstances and
substance, then perhaps we would not have been
entitled to call for this testimony: but when he
goes on and asks if he, the witness, had no conver-
sation with Hendricks of the character I have
spoken of, then we insist upon it, the witness is
at liberty to sustain himself by stating what con-
versation he had with Mr. Hendricks, and when
it was. That is the ground upon which we ask
the question."
Counsel for the accused:
"We object to the question for this reason:
that the questions were, as the Counsel states,
carefully worded, both ox them, and that both
the questions were restricted to a particular time.
The first question asked the witness was : did you
have any such conversation with.Thomas A. Hen-
dricks before the meeting of the coroner's jury
at the adjourned session. The|next question was:
did you have a conversation of the substance that
I have named with Thomas A. Hendricks before
the finding of the coroner's inquest?"
The Counsel for the prosecution said the last
question was not confined to any time. ,
The Counsel for the accused called for the read-
ing, by the recorder, of his notes in reference to
the questions under discussion.
The recorder then read from his notes as fol-
lows:
"Had you any conversationsimilarjto that before
the jury found their verdict ? No, sir, I never
had then or since. And you never have had any
conversation with him, the substance of which I
have given ? I was going to tell the conversa-
tion I did have. I don't care about that, I mean
before the final finding of the jury ? I did
not."
The Counsel for the prosecution said:
The second question read by the recorder it
the one to which I referred, and I still maintain
the position I have taken. Just see how this
thing will work. The Counsel has made a general
inquiry of this witness, and Mr. Hendricks, when
he comes in here for the purpose of contradicting
the witness, cannot be warned in any respect,
while if we had this witness' statement as to the
actual conversation which he admits that he had
with Mr. Hendricks, we could then say are you
certain it was at that time and place, and thus
possibly reconcile the whole. By a contrary
course, this witness will be placed in such a po-
sition, that if Mr. Hendricks should swear posi-
tively to a particular conversation, it is utterly
out of our power again to contradict it, (for we
cannot bring in evidence in reply,) and the only
opportunity the witness has for explanation, is
for him now to state what conversation he had
with Mr. Hendricks, and when and where,"
The Counsel for the accused :
" If the Court please: ' Hard cases are always
the quicksands of the law.' The rule of evidence,
as I understand it, as it is laid down in the books,
and practiced in the courts everywhere, is just
this, neither more nor less, that when a conver-
sation is called for on one side, the other side is
entitled to the whole conversation that occurred
at that time, not any other conversation that oc-
curred. Then the only enquiry for the Court is
whether I did, in my cross examination, call for
any conversation that was subsequent to the find-
ing of the jury of inquest. The Counsel has had
read from the records a question, which, stand-
ing alone and unqualified, might perhaps bear
out his assertion."
The witness here stated that the conversation
he had had with Mr. Hendricks took place be-
fore, the final finding of the jury. v
The Counsel for the accused said, "If that be
134
PBOCEEDrsraS OE a military commission,
the case, then, of course, the Counsel is entitled to
the conversation, because my question restricted
it to that time.
. Re-direct examination resumed by the Counsel
for the prosecution.
I understand you to say you had some conver-
sation with Thomas Hendricks at dinner time of
the day after the murder was committed? Yes,
sir. That your conversation took place before
you signed the verdict before. the coroner's in-
quest was closed? Yes, sir. Right in the
midst of it ? Yes, sir. You had an adjourn-
:ment for dinner? Yes, sir, and then I had the
conversation with Mr. Hendricks. Is Mr. Hen-
drieks any relation of yours ? No, sir. Are
you friends ? I don't know, sir, I know him.
Was he a member of the jury, also ? Yes, sir, I
was told by the sheriff to get up some witnesses,
as many as I could by the time the jury met
again after dinner, and I heard Robert Simmons
say on the evening before that he knew who shot
the boy, and I went up there to Simmons to re-
quest him to come up to the market at three
•o'clock at the time the jury met. We don't
want the conversation you had with him; did he
refuse to come? Yes, sir. Don't state the
ground of his refusal. I don't know how to
explain my conversation with Mr. Hendricks
then. It will explain itself: you saw Simmons
before you saw Hendricks? Yes, sir. And he
declined being a witness ? Yes, sir, Mr. Hen-
dticks passed my store before the meeting of the
"jury again, and I called him in, or he stepped in,
rather, and I called him back to my desk; says
•I, "Mr. Hendricks, there are two ways of doing
business—one is a right way, and the other is the
wrong way; there is a way for the jury to go too
far, and there is a way for them not to go far
enough; and I think it is going most too far to
. take a man into his house, and close the door on
him, to try to make him become a witnessthen
I spoke concerning the conversation I had with
Simmons; I told him I had been down to Sim-
mons and heard him say yesterday evening who
killed Archy; and he told me that he didn't
. know what everybody was running after him for;
that it appeared to him they wanted to get him
into a scrape; he told me you had him in the
• house aud shut the door on him, and says he,
< "now I don't know anything at all about it, and
if I did know, I don't want to know anything."
That was what Simmons said, what you told
Hendricks? Yes, sir, that is all the conversa-
tion that I have had with Thomas Hendricks to
the best of my knowledge, I believe. You never
had any conversation at all with him in which
you told him anything of the character that the
Counsel for the defence has asked you ? No,
sir. . I understand you to Bay that you were a
member of the coroner's inquest? I was.
• You were sworn a member of that inquest?
Yes, sir. That your impression was then that
your oath did not bind you to disclose ? That
was my impression; yes, sir. That your oath
was to bind you upon the evidence ? Yes, sir,
I asked the coroner that question, whether the
oath took, required a member of the coroner's
• inquest to disclose what was within their own
knowledge; Mr. Blake was the coroner; I said,
• ''suppose some man on this jury saw the shoot-
ing of this negro, and knows all about it," and
he said "all they have got to do is to find the
verdict according to the evidence brought before
' them." That was your impressio n of it ? Yes,
sir. That was the explanation you had from the
coroner? Yes, sir; and that, may it please the
Court, is my understanding now.
Counsel for the accused It is a matter of ar-
gument.
Counsel for the prosecution:—Yes, sir, I men-
tion to the Court that I don't think a man is
bound by his oath to disclose, because he is a
member of the Coroner's Inquest.
Re-direct examination by the Counsel for the
prosecution resumed.
You hadn't the moral courage to oppose the
popular feeling? No, sir, I hadn't. You
thought it was not your duty to make the dis-
closure, and you didn't make it? No, sir.
Did you conceive you were perjuring. yourself
at that time? No, sir, I didn't. It was
not your understanding that you were requir-
ed to disclose it? No, sir, it was not.
About this pistol, where did you get it original-
ly? I am not certain whether I bought
it myself or got some other man to buy it, but
it was bought from one of the 13th Pennsylva-
nia cavalry. Was it loaded when you got
it? Yes, sir. Were those loads in it
the day you went up to the market house?
Yes, sir. Did you have any fixed ammuni-
tion for it? No, sir. How long had
you owned it before this affair took place ?
I bought it in June after the surrender. And
you think that some of these same loads re-
mained in it to the day you came here? Yes,
sir; I am confident there was one of the same
loads ? Is it your impression that there were
more than one ? My impression is there was
two, but I am not confident of but one. Was
that pistol ever unloaded to your knowledge be-
tween the time you purchased it and the time
you were on the ground, when Archy Beebee was
shot ? It had never been unloaded. And you
say it was loaded with the bullets that fitted with-
out patching, to the best of your knowledge?
Yes, sir. There were no buckshot in it at that
time ? No, sir.
Re-cross examination by the Counsel for the
accused:
Mr. Phillips, when you asked Mr. Blake, the
coroner, with regard to your duties, who heard
you ask him ? No person at all, sir. Where
was he ? In my store, sir. In the front room
or back room ? It is all in one room. In
the front part or back part ? I don't recollect
whereabouts in the store. Did you call him
in there or did he come in there of his own ac-
coard ? He came in of his own accord. Was
that before the finding of the coroner's jury or
afterwards ? It was before, it was the dinner
hour of the same day I had this conversation with
Mr. Hendricks. The twelfth of February?
Yes, sir.
The Judge Advocate stated that there was but
one more witness to be examined for the prosecu-
tion, and he would not arrive until Thursday,
and if the defence would.be willing for the pros-
ecution to introduce the witness as soon as he ar-
rived, they would announce that the prosecution
was formally closed. *
The Counsel for the accused refused to accede
to the proposition of the Judge Advocate with
reference to the introduction of a witness for the
prosecution, after the defence had opened their
case.
The Judge Advocate then stated that there
would be no witness to be examined to morrow,
under the circumstances, whereupon, on motion,
the Commission adjourned, to meet on Thursday,
the 15th, inst. at 11 o'clock A. M.
Raleigh, N. C., Aug. 15,1867,11 A. M.
The Commission met pursuant to adjournment:
Present all the members of the Commission, the
convened at raleigh, north carolina.
135
Judge Advocate, the Counsel for the prosecution,
all the accused and their Counsel.
On page 132G Witness Samuel A. Phillips
wished to make the following correction in his
answer to the question, " you solemnly swear in
the presence of Almighty God that you did not
fire the pistol ? " Witness ; answer was " I swear
most solemnly that I have not fired a pistol since
then either." The meaning of that answer Mr.
Phillips stated was that he did not fire the pistol
at that time or at any other time during that day.
The reading of the testimony taken on Tuesday
was then waived there being no objections thereto.
Tuesday's proceedings were then read and ap-
proved.
The Judge Advocate stated that there was no
witness to day to be examined.
On motion, the Commission adjourned to meet
on Friday the IGth Inst, at 11 o'clock, A. M.
Raleigh, N. C., Aug. 16th, 1867, 11 A. M.
The Commission met pursuant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
Yesterday's proceedings were then read and
approved.
George W. Smith, a witness for the prosecu-
tion was called.
Questioned by the Counsel for the prosecu-
tion.
What is your name ? George W. Smith. Do
you know what would become of you if you were
to tell a lie? I would be punished hereafter.
Do you know what would become of you if you
were to swear to a lie in court? I would be
put in prison. You know that when you are
sworn you take an oath—you call upon God to
witness—you call God down here to witness that
you are telling the truth—that you will tell noth-
ing but the truth, and that you will tell all the
truth that you know—nothing but what you saw
and heard yourself ? Yes, sir. You under-
stand that do you ? Yes, sir.
The Judge Advocate asked the Commission if
they were satisfied that the youth understood the
nature of an oath.
The Commission had no objection to the wit-
ness being sworn,
Geo. W. Smith, a witness for the prosecu-
tion, was then duly sworn, after which, he testified
as follows:
Questioned by the Counsel for the prosecu-
tion.
What did you say your name was? Geo. W.
Smith. Where do you live George ? Down
there in one of Mr. Mitchell's Houses. In what
town? Fayetteville. How old are you?
I will be thirteen to-morrow. Were you in
Fayetteville the day Archy Beebee was killed /
Yes, sir. Were you near the market house ?
Yes, sir; pretty nigh there—I was not no further
than across the street. Where were you when
you first saw Archy that day? I was right
there by the market house, when they were carry-
ing him up stairs. By whose store ? J. B.
Davis's store, When Archy was carried up
stairs? No, sir; I was at the market house
when he was earned up stairs, and as soon as they
carried him up, I left. You were at the market
house when he was carried up? Yes, sir. Then
you went off to where ? To J. B. Davis' store,
and I was shooting marbles there with a boy—
and I heard them cry out "clear the way"!
The first thing you noticed afterwards—you heard
them say "clear the way;" what did you do1
then ? The boy who was with me he says:—
"let's go up there," and I said "no let's shoot
on," and by and by we heard them say " kill
him" and by and by the pistol went off, and I
went on up there. You went up there when
you heard the pistol? Yes, sir. Butnotbe-
fore ? No, sir. Did you go up just as soon
as the pistol shot ? Yes, sir. Did you go
right into the crowd ? Not right in the midst
of the crowd, because he was laying about three
feet from the side walk. Who did you see
when you went up, that you knew? I saw
Monk Julia, that was one I saw, and I saw Mr.
McDonald, and I saw my brother and Jim Done.
What is your brother's name ? Rufus Smith.
Did you see Captain Tolar there at all ? No,
sir; I never saw him. Did you say you
went right up to Archy Beebee as soon as the
pistol was fired ? Yes, sir. And I saw Mr.
Wemyss getting up, he fell when the negro was
shot, I am told. You must now tell us what
you were told, just what you saw; when you got
there Archy was dead, and you found Mr. We-
myss getting up ? Yes, sir. What was Monk
Julia doing when you saw him ? He was jaw-
ing and rearing, that was all I know about it.
How near was he standing to Archy? About
as close as I am to you (about eight feet.) You
say he was rearing about there ? Yes, sir, I
had heard him say before they carried him up, if
they brought him out he would be a dead man, if
any one would join him he would lead the way.
When was that ? In the morning before Archy
was brought. Where did you hear him say
that? At the corner of the market house.
Did Monk have a pistol when he was rearing and
roaring about so ? I never saw no pistol, sir.
See no stick ? No, sir. Any knife ? I saw
a knife in his hands. What was he saying ?
He said he ought to be dead, and he would cut
his throat, lie would, and if anybody would join
him he would lead the way. He didn't say that
after he was shot? He said that before, and he
said it after he was shot. Did you hear anybody
say anything in the crowd cry out who killed
him ? Yes, sir. When was that, when you
first got in the crowd after the pistol fired ? Yes,
sir. Directly after. Yes, sir, as soon as the
pistol fired I ran right up there, and they all hoi-
lered out, "Tolar, Tolar shot him." Did yon
hear several people say that? Yes, sir, I heard
a heap of people say that, and I asked my brother
who shot liim, and my brother said Tolar. Your
brother was in the crowd when you got up
there? Yes, sir. You must not tell what
anybody said—you heard several persons cry out
Tolar shot him. Yes, sir. And that was
right straight after the pistol was shot? Yes,
sir. 1
Cross-examination by the Counsel for the ac-
cused:
You live in Fayetteville, George? Yes, sir.
Lived there all yourlife? Yes, sir, I lived up
on Hay Mount Hill till we moved down there.
You were playing marbles that day ? Yes, sir.
Where? There are at J. B. Davis' corner.
You didn't see Archy when he came out of the
market house? No, sir, I was still shooting
when they hallowed "clear the way." You
were shooting yourself? Yes, sir. How
many-of you were playing ? Only two of us.
You kept on playing? Yes, sir, we played on
until the time they shot the pistol ? You heard
them say "shoot, shoot ?" Yes, sir, we heard
them cry "just clear the way," and we heard
them holler "shoot him, shoot him!" and then
we heard him fire the pistol, and then we run up
and saw Archy laying there, and we heard them
130
PROCEEDINGS" OF A MILITARY COMMISSION,
-all hollow out "Tolar." Did you seo Captain
Tolar? No, sir, I could not see him. You
know him, don't you? No, sir, I never ^aw
him before in my life. Was he in the crowd
when you heard them say "Tolar?" I never
eaw him, sir, I know don't know anything
about that, sir. Well, George, when tliey cried
shoot biui, it didn't scare you, did it ? Yes, sir.
it scared me a heap, that was the reason I did not
go right up there. You would not go there
when they said "shoot." No. sir. After
they shot, you wert there ? Yes, sir. Did
you go right straight there ? Yes, sir. I went
up there as soon- as the pistol fired. Did vou
take up your marbles before you.went? Yes,
sir. Dow many marbles did you have down that
day in the ring ? One belonged to ma and one
to the other boy. Did you and be have any dis-
pute about the marbles before you went? No,
sir. Yrou got yours, and he got his ? He had
mine. Did you maSe him give them up before
you went? No, sir, he had won them. There
was nothing further to be done about that, he had
your marbles and bis own, and you and he had no
settlement to make about the marbles ? No, sir.
Did you hear thempry "Tolar, Tolar !" before you
went over the street? Just as soon as I got
across the street,. You didn't hear Tolar's name
mentioned at all after you got across the street ?
•No, sir. How far from the edge of the pavement
did you say Archy was lying when you got there?
About eight feet. lrou mean in the street?
Yes, sir. You know what you mean by the
pavement. That brick wall. From the eige
of the pavement you say he was Iving about eight
feet? Y'es, sir. Which way was his head—
towards the wall, or towards the edge of the pave-
merit? Towards the wall of the market house.
How far was he lying from the corner of the pave-
ment? I never noticed to see how far he lay
from the corner. Did you notice whereabouts
he was lying? Do you know the arches there,
how many arches arertnere at that side of the mar-
ket house, do you know? Them round places?
Yes. Two or three on one sidel believe. There
are three ? I never took no notice. You
didn't notice how he was lying, whether he was
lying in one of the arches or not? He was not
lying in one of them. Was he lying with his
Lead next to the arch, or next to the brick wall?
Next to the brick wall. The wall towards the
corner of the market house, or the wall that is be-
tween the twcr'arches ? The wall next to the
corner. His head was lying, if I understand
you now, next to the wall, at the corner of the
market house/ Yes, sir. You say that Mr.
Weinyss was getting up after you got there ? He
was getting up when I was running across the
street. Was there any crowd around Archy and
Mr. Wemyss, when you got up there ? Yes, sir,
right smart of people. When did you first see
Arcny—how near did vou have to get to him be-
lore you saw him? I had to get about as close
as from hereto you, (about twelve feet), and I
could just see through the men's legs. Then I
ran up there, <and I saw him Jthen, when I got as
close as I could. How long did you stay there?
I stayed there about ten minutes, and then I went
on home. My bucket was under the pump then get-
ting some water. I went up there and stayed about
ten minutes, and when 1 went hack and found
ma had been to the pump, and sat my bucket
under there. Did you go up the street to get
water ? No, sir, I had been shooting there, and
ma had brung the bucket there to me, and hallow-
ed to me to come on, and I told her as soon as I
got my marbles back I would, and she sot it
under there and-went on home. Was that after
Archy was shot? That was before. Was
Archy dead when you got there? Yes, sir, he
was dead; 1 saw him open his eyes and shut them.
He was not dead then ? Not exactly quite dead.
He rolled his eyes back? Yes, sir. Was it
after that or betore you beard them say " Tolar
shot him ?" Just after the pistol fired,-when I
was running across the street. As you ran
across the street ? Yes, sir. When you got
there Archy was not quite dead ? No, sir. He
rolled his eyes back once or twice ? Yes, sir.
And you saw Mr. Wemyss getting up then?
Yes, sir, I saw him getting up. About the time
you heard them cry Tolar you saw Mr. Wemyss
get up ? Y"es, sir. Where abouts was Mr.
Wemyss, just where Archy was shot ? Yes, sir,
Archy I believe was hitched to Mr. Wemyss
thumb; he had hold of Archy's hand, or some-
thing that was around Archy's hand. Which
hand, the right or left ? I don't know, sir,
which hand it was. You, think, George, he
had hold of him when he got there? No, sir,
he didn't have hold of him when I got there;
when I was running across the street. Wheu
yon saw M<\ Wemyss get up ? Yes, sir. You
think he had hold ot him then ? Yes, sir. Was
there a large crowd around him when he was get-
ting up ? Yes, sir, a tolerable large crowd.
Yet you could see/ Yes, sir. You had no
trouble in seeing? ' No, sir. Do you know
Mr. McDuffie? Yes, sir, I have seen him at
our house Often. Was he there when you got
there? I don't know, sir, he might have been
at the further end of the crowd, I never saw him.
You didn't see him at Archy when you got there ?
No, sir. Who did you see ? I saw Monk
Julia, and my brother, and Jim Done. You
say you didn't see Dr. McDuffie there at all?
No, sir, I never saw him. You don't recollect
seeing him there that day ? No, sir.
Reffiifeet examination by the Counsel for the
prosecution.
George, when you stopped playing marbles you
went right straight over to the crowd ? Yes, sir,
as soon as the pistol went off I started right off.
Didn't you stop to pick up your marbles ? Yes,
sir. That was all you did ? Yes, sir. As
soon as the pistol fired, you picked up your mar-
bles and went right over ? Yes, sir. When
was it you saw Mr. Wemyss, before you got over
there? Yes, sir. , You saw Mr.'Wemyss get
up? Yes, sir. How did you see, over the
heads of the crowd? No, sir, through the legs.
You were notYo tall as some, and could see be-
tween theip legs ? Yes, sir. You saw him
getting up before you got there ? Yes,sir. When
was it you heard this cry of "Tolar Tolar," before
you saw Mr. Wemyss ? I heard them hoi-
low that just as I started across the street.
What was it they said; the people were crying
out how? They hollowed "Tolar! Tolar
shot him! " Did they just say Tolar's name,
oy Tolar shot him ? Tolar shot him, was all
they said. You don't know Mr. Tolar now ?
I saw him to-day when he was speaking to pa,
and pa told me that was Mr. Tolar. That
was the first time you ever knew him ? Yes,
sir. You didn't know him that day ? No,
sir. You would not have known him if you
had seen him that day, would you ? No, sir.
You know Dr. McDuffie? Yes, sir. He
comes to see people at your house when they
are sick? Yes, sir. You didn't see'him
there that day, that you remember, at all?
No, sir.
Rufus Smith, a witness for the prosecution,
was called.
CONVENED AT RALEIGH, NORTH CAROLINA,
137
Questioned by tbe Counsel for the prosecu-
tion:
How old are you, Rufus ? Ten years old.
Do you go to school when you are at home ?
Yes, sir. Have you been to Sunday school ?
Yes, sir. You know what becomes of bad
boys who tell lies ? Yes, sir. What does
the Sunday school teacher tell you about that?
I would go to hell, sir. And do you know
what will happen to you if you tell a lie when
you are sworn; do you know it is worse than
at any other time ? 'Yes, sir.
It is a greater sin to tell a lie when you are
sworn on the Bible than it is to tell a lie at any
other time, because you get men into trouble
by it.
Do you know what will be done to you if
you swear to a lie here to-day? Yes, sir.
What? Be put in jail. You will be pun-
ished in-some way if we find it out; don't you
think God will punish you hereafter ? Yes,
sir. You have been taught there is a God,
' havn't you ? Yes, sir. And you know it
is a sin to tell a lie ? Yes, sir. And more
of a sin to swear to a lie ? Yes, sir.
The Commission was satisfied that the youth
understood the nature of an. oath; whereupon
Rufus Smitji, a witness for the prosecution,
having first been duly sworn, testified as fol-
lows:
Questioned by the Counsel for the prosecu-
tion.
What is your name? Rufus Smith.
Where do you reside, Rufus, in what town ?
In Fayetteville. Do you remember the day
that Archy Beebee was killed? No, sir.
Do you remember there was such a man as
Archy Beebee killed in Fayetteville ? Yes, sir.
Were you in Fayetteville when it happened ? Yes,
sir. Were you at the market house that day ?
Yes, sir. When did you first see Archy that
day ? I seen him at the guard house. You
saw him at the guard house ? Yes, sir. Early
in the morning? No, sir. When they were
bringing him up to the market house ? Yes,
sir. Did you go along up to the guard house
with him ? No, sir. I was coming from din-
ner and I saw them take him out. Were you
coming up towards the market house ? Yes,
sir, and when I got along by the guard house I
saw them bringing him out. Did you go on
then up to the market house ? Yes, sir. Did
Archy go up there too ? Yes, sir. Were you
up to the market house when Archy went up
stairs ? Yes, sir. Did you go up stairs too?
No, sir. Did you try ? I went to the steps,
and they told me to go down. Where did you
go, when Archy went up stairs ? I was sitting
on one of them benches ? Which bench, were
you sitting on ? One of them benches close
by old aunty Ben's. How long did you sit there,
do you know? No, sir. Was there any
body in the market house while you were sitting
there? Yes, sir. How many people, "do
you recollect ? A heap of them. Did you
see anybody there you knew ? Yes, sir. Who
did you see, that you knew ? Mr. McDonald
and Jim Done, and a heap of people. Was there
any body else, that you can tell us of that you
knew? any other boys? No, sir. Were
you sitting still on that bench ? • Yes, sir. Did
you stay on the bench until Archy came down ?
Yes, sir. You stayed there until Archy came
out to come down ? .Yes, sir. Did you see
the lady there that day, that Archy had been try-
ing to do something wrong to ? Yes, sir, I
seen her, when she went up stairs. Did you see
her when she came down ? No, sir. You
didn't see her when she came down? No,sir.
How did she come there, did she walk, or come in
the carriage ? She come in a carriage, You
saw her go up stairs? Yes, sir, her and her
mother. You didn't see them come down ?
No, sir. You stayed on that bench until Archy
came down? Yes, sir. Did you hear any-
body talking in the market house, while Archy
was up stairs ? No, sir, I heard them talking
but I could not get what they said. People
were talking about, were they ? Yes, sir. You
don't remember what anybody said ? No, sir.
When Archy came down stairs did you see him
come? Yes, sir. Were you still sitting on
the bench, when he come down ? When I found
out he was coming down I went to where he was
coming down. You went to the foot of the
steps ? Yes, sir. Who was with him ? Mr.
Wemyss. Anybody else? No, sir. No
one else? No, sir. Wemyss the only man
who was with him ? Yes, sir, the only man I
saw. Do you mean he is the only man who
was with him that you knew, or that there were
others there that you didn't know ? He was
the only man I saw, I don't know whether there
was any more there or not, because I was only on
one side of him. Did Mr. Wemyss have hold of
Archy ? Yes, sir. How did he have hold of
him ? He had hold of him some how. You
don't know how ? No, sir. Did anybody do
anything to Archy while he was coming down the
stairs, or after he got down ? He got down and
then the man shot him. Did the man shoot
him inside of the market house ? No, sir, right
there on the pavement. Did you see any th ing
done to him in the market house, while he w as
passing from the steps to go outside on the pave-
ment? No, sir. You were in there were
you ? Yes, sir, Did you go out of the open-
ing in front of the market house, when Archy
went out? Yes, sir. The same time he
was going out ? Yes, sir. What happened
after you went out there ? The man shot hiin.
Did you see the man who shot Archy? Yes,
sir. Did you know who he was ? .Yes, sir.
You saw him? Yes, sir. Do you see him in
the court now? Yes, sir. Where is he?
Yonder he is, with spectacles oh. Is that the
man? Yes, sir. Did he have the spectacles
on that day ? I don't know sir. What is the
man's name ? Mr. Tolar, they told me his name
was. Who told you so? The people there
did. Do you see anything about that man now,
that you saw that day, that makes you know it is
he ? No, sir, George told me he had a little
black spot on his face—George—no Kufey told
me—Rufus—no George told me so. Did you
see that little black spot on his face that day?
No, sir, I never seed it. You must not tell
what anybody told you—you must tell -what you
saw, you saw the man shoot the negro ? Yes,
sir. Did folks tell you there right then who "it-
138
PROCEEDINGS OP A MILITARY COMMISSION,.
was ? Yes, sir. Who did they say it was ?
Tolar. Was that just after the shooting?
Yes, sir, the boys all told me it was Tolar.
Yyrhat became of the man that shot, after
he fired the pistol? I don't know sir. You
don't know where he went to? No, sir.
Did you see what he did with the pistol?
yes, sir, I thought he put it in his left sleeve. You
think he put it in his sleeve after he fired it ?
Yes, sir. Didn't it scare you when the pistol
went off? Yes, sir. Did you run away?
No, sir, I stayed there a while, and then I went
on back home. Did you see your brother George
there that day ? No, sir, he was not there, he
was down shooting marbles, with another boy.
Did you see him after the pistol was shot ? Yes,
sir. Where were you standing, when the pis-
tol was shot ? I was standing with my back to-
wards my home. Were you standing on the same
side of the market house that you came out of ?
No, sir. Which side of the market house
were you standing on ? On the side towards
my home. Do you know what street your
home is on ? No, sir, pap told me in yonder,
but I forgot. Is it the same street that the
guard house is on ? Yes, sir. You were
standing on that side of the market house to-
wai*ds the market house ? My back was to-
wards my house, and my face towards the
black man. Did you see him when he fell ?
Yes, sir. Did you go up and look at him ?
No, sir, I never went up to look at him: the
men told me not to go there; and then I was
about two feet from him, and I looked at him
though; I seen him. Who told you not to
go.uptohim? Mr. McDonald. What
did he tell you not to go up to him for ? He
told me not to say anything about it. He
told you not to say anything about it ? Yes,
sir. Did you say anything about it ? No,
sir, I said it all before he told me. What
did you say ? I told the people that Tolar
shot him. You said that? Yes, sir. You
were one of the people who were saying that
in the crowd that day ? No, sir. the boys all
around there asked who shot him and I said
Tolar. And then Mr. McDonald told you to
say nothing about it ? Yes, sir. Did you
tell any body since ? No, sir, no body except
my mammy. And you saw the man when
he fired the pistol ? Yes, sir. What sort
of a man was he, a short man or a tall man ?
A. tall man, taller than pa.
Cross-examination by the Counsel for the
accused:
Rufus, do you know me ? No, sir. I
live at Favetteville with you; I want to
talk with you a little about this matter, and
don't get scared, no body is going to hurt you;
where had you been that day before you went
to the market house ? I had been no where
but home. You came from home up to the
market house ? Yes, sir. Do you know
a good many people in Fayetteville, Rufus?
I know some, but I don't know many; I
know some boys. Do you know little Willie
Porter? Yes, sir, and he told me it was
Tolar; him and a whole heap more boys. Have
you seen Willie lately ? Yes, sir, I seen him
a little while before I left home; I seen him
down there to the guard house, by them old
barrels of white lime. Did he have a little
talk with you ? No, sir, he never had a talk
with me. He told you he had been up here
to Raleigh, did he ? Yes, sir, he came to
my house the morning before he come, and told
me he was going; he said they sent after him,
and said his dad wrote a letter telling not to-
let him go. So he came to see you the mom*
ing before he came off? Yes. sir. And
then after he got backj yon saw him up there
about the lime barrels by the guard house. ?
Yes, sir. And you and Willie just talked
this matter over; I suppose you told Willie
what you knew about it, didn't you? No,
sir, I told him one day that Tolar shot the
man, and he said yes, and then he told me he
was going to go to the trial; I told him not to
tell nothing on me (crying). Since Willie
got back from Raleigh, and you and he had
that talk out there by the old lime barrels, at
the guard house, Willie told you what be had
said up here in Raleigh, did he ? He told
me that Tolar done it. Did he tell you they
brought him up in a nice place like this ? * No,
sir, he never told me nothing about this. Did
he tell you about any of these gentlemen that
you would see here, dressed up, in uniform ?
No, sir, he never told me nothing about them.
Did he tell you about swearing, that you would
have to swear to things when you came up
here ? No, sir, he never told me nothing
about that. He just told you what he had
said while he was up here ? Yes, sir. Did
he tell you you must tell the same tale that he,
told? No, sir, he never told me anything
about that. Rufus, you say you knew Capt.
Tolar that day ? No, sir, I never knew him
that day; the boys just told me it was him.
When you saw him use the pistol you didn't
know who he was ? No, sir. Just now
when you came up here in this room you didn't
know him then till your father pointed him
out to you? Yes, sir, I did know him; I
knowed the man, and I asked pa if that was
Tolar, and he told me yes; I knowed the man
and showed pa the man and asked him if it
was Tolar.
(Witness exhibits much agitation and retires
for a few moments.)
Cross-examination resumed:
I believe you told me you didn't know Mr.
Tolar that day ? N o, sir. Had you never
seen him before that day, that you remember ?
I don't know, sir, whether I ever seen him or
not. How long after that before you saw
Mr. Tolar, to know him ? To-day is the
second time I ever seed him. To-day is
the first time after the shooting that you saw
Mr. Tolar, to know him ? Yes, sir. When
you were sitting over there, just before you
went into that little room, you and your father
and your little brother, George, you asked
your father which one was Capt. Tolar ? No,
sir, I showed him that man and asked him if
that was Tolar, and he told me it was. When
these soldiers were bringing Capt. Tolar and
the others np here, you and your father and
your little brother, George, met them on the
street, didn't you? Yes, sir. And
CONVENED AT DA^EIGH, NORTH CAROLINA.
138
four father shook hands with Capt. Tolar?
don't know whether he done that or not ?
He just spoke to him ? I don't know whether
be spoke to him or not. Was that the time
your ihther lold you it was Capt. Tolar. No,
6ir. How come you to ask your father, after
you got up here if that was not Captain Tolar?
I had seen the man and 1 asked pa if that was
Tolar so that I could toll. Rufus, you think
that Capt. Tolar didn't have spectacles on that
■day? I don't know, sir; whether he did or
not—I never seed. That black speck under his
•eye, did you notice that, that day ? No, sir ; I
ueverseed it—a boy asked me, who is that man,
that shot him, and I said Tolar, and he said,
" don't you see that black speck under his eye?"
and I said no. That was what the boy told
you ? The boys all Jold me that. Rufus,
were you standing in front of Capt. Tolar, or be-
hind him, when he shot? I was not standing
in front of him. You were standing behind
him ? No, sir. Which side of him were you
standing? I was standing with my back to-
wards my house. Were you out on >the pave
ment? Yes, sir. That pavement where
Arehy fell ? Yes, sir. And had your face
down towards the guard house, and towards your
mother's house ? Yes, sir. Were you look-
ing right at Archy when he was shot? Yes,
sir. Were you close down by the corner of the
market house ? I was about two yards from
the corner of it. How far was Capt. Tolar off
from Archy when he shot him ? About two
yards I reckon. Was Archy between you and
Capt. Tolar ? No, sir. Were you nearer to
Capt. Tolar, or near to Archy ? I was a little
bit closer to Archy. And you had your back
down towards home? Yes, sir. (crying.)
Rufus, did you see Capt. Tolar, when he came up
to that place, where he was standing when he
shot him? No sir. He was standing there
when you first saw him ? Yes, sir. Did you
see where he got the pistol from ? I don't know
whether I seen it or not, I thought he took it out
of his sleeve, Which sleeve, his right or left ?
His left I thought, I don't know whether it was
or not; I dont know whether it was Ms right or
left—I can't tell anybody elses, I can tell my own.
You can't tell any one elses right hand ? No,
sir, not without they throw a brick, or something
so that I ean see. Did you notice whether
Tolar had his pistol in his right hand or left ?
No, sir, Did you notice what sort of a pistol
it was ? No, sir. You don't know whether
-it was a small or large one? No, sir. It was
cot a gun though? No, sir. About how
near did Capt. Tolar put the pistol to Archy's
head? I don't know, sir. How far was Capt.
Tolar from Archy at the time he shot; as far as
from you tome? Not as I know of. How far
far do you think he was ? About twoyards. Can't
you point to somebody that is sitting around
you about the 6ame distance from you ? No, sir.
Can't yon point to some of them? No, sir.
I don't want yon to tell what you don't know; I
just want you to tell what you saw ? I told you
all I know about it. I know you have, you and
I know all about it, but fhese gentlemen don't
know, and you have to tell it to them. Rufus,
can you show some gentleman here that is just
about the same distance off from you as Captain
Tolar was, at the time he shot hiim? No, sir.
Do you think he was as far off as that gentleman ?
(about forty feet.) I think he was, but I don't
know. Did you notice whether Captain Tolar
was standing on the pavement or off, at the time
he was shot ? Never noticed whether he was
off or on. You know that, great big place they
call an arch ? No, sir, 1 don't know it. Thatv
big opening— great big door ? No, Sir, I don't
know at. (Witness is shown a drawing of the
market house, but does not recognize it) You
can't tell whether Mr. Tolar was on the brick,
walk around the market house? No, sir, I
reckon he was off. How many were there be-
tween you and Mr. Tolar? I don't know, sir.
Were there any ? I don't know, sir, whether
there was any or not. If you had asked me
the first time I might have told you something
about it. Rufus, many men were there between
Mr. Tolar and Archy;—do you remember whether
there were any? No, sir. Did you hear
Captain Tolar say anything before be shot him ?
No, sir, I never heard him say a thing. Did
you notice what he had on? No, sir. Did
you notice whither he had on a cloak or anything
around him ? No, sir, the boys pointed me to
his legs and face, and told me that was Tolar,
and said he had on a shawl. What boys told,
you ? Jim Done, and a heap of them. Did
Willie Porter tell you that? No, sir. Was
Jim Done there all the time with you ? Yes,
sir. Did he go there with you? No, sir,
when I went up there he was up there. And
you were with him all the time you were there
till you went away ? Yes, sir. What part of
the market house did you and Jim Dave stay
about—under the market? Yes, sir. So
from the time you got there until you went away
you and Jim Done stayed under the market
bouse together? Yes, sir. Jim was with
yon all the time, was he not ? Yes, sir. What,
were you and Jim doing, were you playing?
We were just talking together. How big is
Jim ? About my size, but he is a little older
though. He was eleven when I was nine.
When you -looked at Captain Tolar and saw him
shoot, did you see his legs ? No, sir, not when
I seed him shoot. Did you see his face ? No,
sir. Did you see his hands ? Yes, sir, I saw his
hands. Do you know Mr. Sam Phillips in Fay-
etteville, that keeps store below the market
house? Yes, sir. Could you tell at that
time whether it was Mr. Tolar or Sam Phillips
6hot? Yes, sir, I saw it was Tolar, I never
knowed whether it was Sam Phillips, I don't
know whether he was up there. Did you see
Archv after he was shot ? Yes, sir, he was ly-
ing down there on the pavement. Did you
hear anybody saying anything about him while
he was lying on the pavement? I heard some
negroes come up aqd say * poor fellow, he is dead.'
Were you standing pretty close to him then?
Yes, sir. You didn't see what became of Capt.
Toler after Archy was shot? No, sir. So all
you saw about it was you just looked there and
saw Tolar raise up the pistol and shoot him? Yes,
sir, I don't know any more. You don't know
where'he put the pistol ? No, sir, but I thought
he put it in his sleeve, but I don't know whether
he did or not. Rufus, what McDonald was that?
James. You mean the great big man that sells
goods at auction? Yes,-sir. You know Mr.
McDonald pretty well? Yes, sir. You are
certain you saw Mr. McDonald there ? Yes, sir.
What was Mr. McDonald doing ? He told me
not to take and tell anybody. You «re certaia
that was Mr. McDonald are you? Yes, sir, he
was with me. Did you notice how long Mr.
McDonald had been there ? You just saw him
about the time of the shooting—you didn't see
him before? No, sir. Was it before or after
the shooting that you saw him? After. You
didn't see him at all before the shooting ? No,
sir. I don't know whether I seed him or not; if
I did, I didn't know it. How loug after the
shooting was it? 1 don't know any more about
■it. Was it a .short, ox long time / J caa't teM
140
PROCEEDINGS OF A MILITARY COMMISSION,
the time of day, I don't know. Was it while
you were there on the ground ? No, sir.
"Where were you when he said this to yon ? I
was standing on the pavement.
Ke-direct examination by the Counsel for the
prosecution.
You know Willie Foriter ? Yes, sir. After
he had been up here to say what he had to say in
this case, he went back to Fayetteville ? _ 5fes,
sir. How many times have you seen him since
he went back ? Once. Did he come to see
you? No, sir. Did he tell you what he had
said when he was up here.? No, sir. Did he
tell you what he had said when he was up hare?
No, sir. At the time we are talking about now,
did he say anything to you about Tolar's having
shot him, was it then he told you that Tolar shot
him, or directly after he was shot ? He told me
when he come to my house before be left. Did
he tell you after he came back from here, and just
before you came? No, sir. You didn't talk about
it then ? lie went to see you after he went back
from here ? No, sir. Did he talk to you about
what he had said up- here? No,sir, I don't
know no more about it. Have you seen Willie
Porter since he was down here to Raleigh ? Yes,
sir. Where ? I saw him at the guard house,
near the old lime barrels. He told you he had.
been up here? Yes, sir. Did he tell you
what he had said, when he had been here ? No,
sir. Right away after Beebee was shot, did any-
body tell you who it was that shot him ? Yes,
sir. Did you ask who it was? Yes, sir.
Did you see the man who shot him, and ask what
that man's name was? Yes, sir. What did
they tell you? They told me it was Toler.
Did some of them then speak about a black spot
under his eye? Yes, sir, Bud Sochamy and
Jim Done told me that then. .
John II. Smith, a witness for the prosecution,
having been first duly sworn, testified as follows:
Questioned by the Counsel for the prosecution.
What is your name ? John H. Smith. Do
you reside in Fayetteville ? Yes, sir. Were
you in that town the day Archy Beebee was
killed? " Yes, sir. Were you at the market
house that day ? No, sir. Where were you,
sir? I stood on the east side of the store
door,—Mr. Mitchell's door, on the south-east side.
Was that at the time the shot was fired ? Yes,
sir, and before it. Were you standing there
when Archy Beebee was brought up from the
guardhouse? Yes, sir. What street is Mr.
Mitchell's store on? On Gillespie street, sir.
IIow many doors clown from market square?
Not more than four doors. Mr. Robert Mitch-
ell's? Yes, sir. You were at his store
door? Yes, sir. When Archy passed up?
Yes, sir. And you were standing about there
more or less, until he was brought down?
Yes, sir. You didn't go up. to the mar-
ket house at all ? No, sir, I never left the store.
Did you notice any crowd at the market house
that day ? Yes, sir. Was the crowd larger
or smaller than you have usually seen there ? It
was a good sized crowd, scattered all over the
market house. Was it large enough to attract
your attention, as an unusually large crowd?
Yes, sir. How long, have you been living in
Fayetteville,. Mr. Smith ? Twenty one years sir.
Do you usually see such a crowd as that at the
market house, when a trial is going on up stairs ?
Not as large as it was that day. Was it larger
than any you have ever seen there, under such
circumstances ? I don't know that it was, I
have seen larger crowds. I mean under like cir-
cumstanees of a trial ? No, sir. It. was un¬
usually large was it for an investigation before a
Justice ? Yes, sir. It was not the ordinary
crowd that was gathered there, when a trial was
going on ? No, sir, not at all. Could you
see the steps that come down from the town hall
up stairs from where you were standing ? Yes,
sir. Did you see Archy when he came down
those steps? Yes, sir. Could you tell who
was with him ? I saw Mr. Wemyss, on one
side, I could not tell who was on the other. Were
you standing out in front of the store ? No,
sir, standing right by the door, on the door step.
Did you see Archy from that time until the time
he fell ? Yes, sir. Could you see him when,
he was passing around the arch ? No, sir, I
saw him immediately he got around on the south
side of the arch, on the corner. Could you see
him in the market house, passing from the foot of
the steps to the arch? No, sir. You lost
sight of him then ? Yes, sir. Was there any
noise or disturbance loud enough to reach you,
between the time that Archy got to the foot of the
steps, and the time he come to the entrance of the
market house turning out ? Yes, sir, there was
loud cries of " shoot him, kill him." At that
time? Yes, sir. Was it in the time he pas-
sed from the foot of the steps to the time he
turned out of the market house ? Yes, sir. You
could hear those loud cries of shoot him, kill him ?
Yes, sir. Was that shout a general shout?
Several in the crowd. Was it one voice ? It
sounded to me like it was several. - Could you
recognize any voices ? No, sir. Were those
the only expressions you heard ? They were all
I heard at that time. How often were those
repeated ? Not more than two or three times.
Each expression repeated two or three times ?
Yes, sir. By different voices did it appear, or
by the same voice ? I could not tell very well
about it. I understood you to say you heard
several voices ? Yes, sir. If did not all seem
to he the utterance of one man? No, sir. You
didn't so understand it at the time ? No, sir,
I thought it proceeded from the crowd. You
thought it \Vas the outcry of the crowd ? Yes,
sir. When Archy came out side of the
market house, you could see him? Yes,
sir. Did you see anything then that
happened ? I saw him struggle. After the
cries were made ? Yes, sir, he seemed to he
trying to get away from the guard, and in strug-
glinghefell, and Mr. Wemyss went down with
him.- ' You saw that from where you stood ?
Yes, sir, and as he was trying to recover, I saw
the pistol fired; hut I could not tell who shot it,
and I saw a man advancing, trying to crawl to
him with a knife in bis hand after he was shot.
How do you mean, trying to crawl to him ? On
his hands and knees. Was that man between
you and Archy ? Yes sir. Who was that
man? Monk Julia. You recognized him
then, could you see whether he was armed at
all ? I saw he had a knife in his hand. He
was crawling on his hands and knees ? Yes, sir.
Did he get into where the hoy was ? No, sir,
somebody jerked him off. How long were
these exclamations continued, I want to know
whether these were continued up to the time of
the appearance of the negro. They stopped
immediately after the pistol fired. Were they
continued irom the time he made his appearance
until that time ? Yes, sir.
Cross Examination by the Counsel for the ac-
cused:
CONVENED AT RAXEIGH, NORTH CAROLINA;
HI
You eay you were standing on the south-east
corner of Robert Mitchells store door? Yes,
sir. What is the distance from that point of
Robert Mitchell's store door up to the south-east
corner of the market house ? I dont know, sir;
but I should suppose in a straight line from
where I stood up to the corner of the market
liouse where the prisoner was in custody of the
guards it could not be more than eighty live or
ninety yards—perhaps a hundred. Between
eighty-five and a hundred yards? Yes, sir.
You say you saw the prisoner when he was
brought down stairs? Yes, sir, I could see
right through the arch there. See him come
down the steps through the small south east arch?
Yes, sir Did you see his face ? I saw him
before, and I could see him then. You could
distinguish him from any other negro, at that
distances? I could not say it was exactly him,
but I supposed it was him. It was the same
man that you saw go up ? I suppose so. You
You are not here to suppose—could you distin-
guish that mans features—could you swear posi-
tively that was Archy Beebee? Yes, sir, I will
swear I saw him comiug down stairs. And you
will swear it was Wemyss on his right hand side?
It appeared to be on his right hand side. Was
it upon his right hand side or not ? To the
best of my recollection it was on the right hand
side. That is not a matter of recollection, that
is a matter of knowledge—was Wemyss or was he
not, 011 his right hand side. He was on his
right hand side. Did you see any body else
with him. I saw Mr. Hardie in front of him.
You could tell it was Hardie ? Yes, sir. Com-
ing down the steps? Yes, sir. Did you see
any of them after th.ey got down upon the floor
of the market house ? I saw them after they
turned the corner. After they turned the cor-
ner of the arch, you mean ? After they turned
the corner of the market house. What do you
mean by the corner of the market house? I
mean the corner after they come down the stair
steps, of course; they had to go around the
corner to take the wooden walk to go to-
wards the guard house; I saw him after they
turned around the corner to go towards the
guard house. You mean the corner of the
arch ? I mean the corner of the market
house. Now at the time you saw We-
myss standing on his right, who else did
you see standing with Beebee? I could not tell
who the others were, I saw Mr. Hardie plainly.
Where was Mr. Hardie standing? He was in
front of him. Directly in front? Yes, sir.
Did he have hold of him? Not that I could tell.
Did you see his hand reached out at all ? I saw
him fighting against the crowd. You say Har
die was in front of him; you mean Hardie was fur-
ther to the south ? Yes, sir. Beebee had his
face towards the south ? I could not tell about
that, because he was struggling at the time. Do
vou say Hardie was further south than Beebee ?
Yes, sir. Could you see that distinctly? Yes,
sir, very distinctly indeed. There could be no
doubt about that ? Not a bit, sir. Whether
Hardie had hold of him or not, you say you can't
tell? No, sir. And vou saw Hardie's hand ?
I could see Hardie trying to fend off somebody with
his arms. Which way were these persons coin-
ing that he was fending oft'? They were rush-
lag in every direction. Did the crowd seem to
be in much confusion ? No, sir, it appeared to
be running in every direction through to the place.
Where did Beebee' fall ? He fell between the
corner of the market house and the tree which is
south of the market house. Did he fall near the
corner of the pavement? I could not tell, sir.
You saw the flash of the pistol.- Yes, sir. And ;
where was that flash ? The flash came from the
north-east of the prisoner. From the flash was
the person who fired the pistol off the pavement or
on ? I could not tell. Where did.'you see the
flash? just desc;ibesome point where theflai-.h was.
On the chart the witness says, the man must
have stood, who fired the pistol, almost exactly
east from Archy, a little north east, if any thing.
If the man bad stood anywhere about that main
easteru arch on the pavemeut, it would have been
impossible for you to have seen the flash? I
could not tell about that. If a man had been
standing any where on the pavement opposite any
portion or that, smaller southern-most i.rch on the
east front, could you have seen the flash ? I
think I could. And you feel sure that the man
was standing to the east of the arch ? A little
to the north of east. Was there a large crowd
about there at that time ? Yes, sir, a very large
crowd indeed. Did you hear the report of the
pistol? ' Yes, sir. Very loud? Not more
than an ordinary pistol shot. It was as loud aa
ordinary? Yes, sir. Fully as loud ? Yes,
sir. How long after you beard the report of the
pistol before you saw that man on his hands and
knees crawling about ? Not more than two sec-
onds. Where was that done? point it out on the
diagram. .
Witness points out the position due south of the
arch.
He was coming from the south and going out
north ? Yes, sir. And he was upon his hands
and knees ? Yes, sir. And he bad a knife in
bis hands ? Yes, sir. And you saw the knife?
Yes, sir, saw it plainly. Could you tell whether
it was a knife that opened and shut ? I could
not tell; I could see it was a knifa plain enough.
Which hand did he hold the knife in ? I could
not tell. And you say that was Monk ? Yes,
sir. How do you know it? Because I had
saen him often enough before to know who he was;
I saw him when he was jerked up. You swear
as to that positively that you saw it ? Yes, sir-
Did you see anybody else with weapons from that
point? No sir. You saw no weapons at
all? No, sir; I saw a great crowd rush'
with their arms raised, but what they had I could
not tell. Did you go up there after the man had
fallen? No, sir. When were you summoned
as a witness of this case ? Not until Wednesday
evening of this week. When did you get here ?
I got here this morning. Who had you talked
with about this matter before you came up here ?
Not a soul. Cobert Mitchell got home before
you came up ? Yes, sir. Did you have any
conversation with him about it? None, except
that he said they were going to send for one of my
boys. No conversation with him or any one
else aDout this matter of killing? No, sir, not
a soul ; the only conversation I had was with
John Williams, the same man that stood in the
door by the side of me the same time and saw tha
same thing I did.
The Judge Advocate announced that the prose-
cution in this case was now closed, and they were
ready to hear from the defence.
Mr. Fuller, one of the Counsel for the accused,
said he had no objection to the introduction of
witnesses for the defence to-day ; but Mr. Phillips,
one of his associate counsel, who had been absent
for some days, and just arrived this morning,
would prefer not to go on until to-morrow.
The Judge Advocate said that the defence had
been notified to be ready, and he saw, no reason
w by there should be any time lost.
A motion for adjournment was then made, which
was lost.
J. B. Davis, a witness for the defence, after
having been first duly sworn, testified as follows :
142
PROCEEDINGS OP A MIL IT ART COMMISSION,
Examined by the Council for the accused.
What is your name? I. B. Davis, sii. Where
do you reside ? I live in Fayetteville. What
is your occupation ? I carry on a Tin business.
At what poiut iu Fayetteville do you conduct
your business ? On the south-east corner of the
"market square. Were you in Fayetteville at the
time Archy Beebee, otherwise called Archy War-
den was shot? I was, 6ir. Were you at any
place near the market house that day ? I was
in my store. Look at this diagram, if you
please, familiarize yourself with it, and then point
out positions upon it ?
Witness is shown a diagram of the market
house, and points out the store marked J. B.
Davis as his place of busiress.
About what time of the day was it that Beebee
was killed? About four o'clock. Where
were you standing at that time ? I was stand-
ing upon the north-west corner of the pavement
around my store. About how far is that from
the south-east corner of the pavement around the
market house ? About fifty or sixty feet in a
direct line. Did you see Beebee when he was
carried up stairs ? I did ndt. Did you see
him when he was brought down stairs? I saw
him as he came down the stairs. Did you see
him then continuously until he was" killed ? I
lost sight of him when he went down the first
?time. Did you see him until he got out upon
the pavement ? There was an obstruction there
that broke the view I had of him. Was that
obstruction the pillar between the main arch and
the southern arch? Yes, sir. After he got
sipon the pavement did you notice any thing
unusual at all either in the crowd, in the appear-
sin£e of Beebee, or did anything occur there to
attract your attention ? When the boy came
around on the pavement, I saw as I supposed, a
•demand for him, by the position of the hands; I
heard no remarks, he then came on down to
about midway of the main pillar, between two
arches: there he went down with his guard: after-
wards I never saw him any more until he was dead.
Where did he fall? He fell about the corner of
the building on the pavement. About the
corner ? The south east corner. Was that
•where he fell? Yes, sir. Well, sir, where
was your position at that time, had you changed
at? I had not. You were standing in that
corner in front of your door? Not in front of
any door, on the corner. How far were you at
that time off from Beebee ? I should say about
fifty or sixty feet. Was there any body in that
crowd at the time of the shooting that you noticed?
I saw no one in the crowd at the time of the
shooting near the boy that I knew, except Sheriff
Hardie. Where was Sheriff Hardie ? I could
not tell the position that he occupied with the
boy. Did you see the boy at all after he raised ?
I never saw the boy after he went down the first
time. Were you looking in that direction at
the time the pistol shot was fired? No, sir,
my attention was directed to about the center of
the main arch. What was there that attracted
your attention; who was it that you saw there ?
Capt. Tolar drew my attention there. Just tell
why your attention was attracted to Capt. Tolar ?
Capt. Tolar was standing about the center of the
pavement, he being a large man and standing
still while the most of the crowd was in motion,
is why my attention was attracted to him. He
was on the center of the pavement at what place ?
About the center of the main arch. What did you
see him do ? I saw him do nothing except standing
still. Were you looking at him when the pistol
shot was fired? I was, sir. Did Tolar fire that
pistol shot? He didn't fire no shot. Have
you any doubt about that Mr. Davis ? None iu
the world. You swear that you saw him at the
time the pistol shot was fired ? Yes, 6ir.
And he fired no shot at all? No, sir. And
at that time you say he was standing on the pave-
ment about the center of the pavement and op-
posite thS center of the main arch ? Yes, sir.
Did you hear the report of the pistol which was
fired ? 1 did. Did you see the smoke of the
pistol? I did. From the sound .of the re-
port, and from the smoke that you saw, where
was the person standing who fired the pistol?
He was standing there on the ground off the
pavement, he was very near the curb stone.
Opposite what part of the arch ? I should say
he was a little to the right of the corner of the
building. What do you mean "to the right?"
The north-east portion of the building. Look-
ing westward ? Looking north from where the
boy fell. Just describe it with regard to the
arch; was he opposite the upper portion, the
middle or where ? He was about the left hand
portion of the arch on the ground. And you
say he was about the south east portion of the
small southern arch ? Yes, sir. And about
a foot and a half off from the curb-stone ? I
could not tell the distance from the curb-stone.
What is your best impression with regard to it ?
I should think a couple of feet from the curb-
stone, but in the ground. Have you any
doubt about that matter, Mr. Davis? I have
none. And you heard the report? Yes, sir.
Do you know who fired that pistol ? I did not,
sir. Do you know anything more about this
matter ? 1 do not. Are you acquainted with
the general character of a freedman by the name
of John Shaw ?
Counsel for the prosecution objected to the
question.
The Commission called for the reading of the
question by the recorder; the recorder read tde
question "Are you acquainted with the general
character of a freedman by the name of John
Shaw ?"
Counsel for the defence added the words "for
truth" making the question to read "are you ac-
quainted with the general character of a freedman-
by the name of John Shaw, for truth?
Counsel for the prosecution withdrew his ob-
jection.
Direct examination resumed by the Counsel
for the accused. What is your answer to that
question ? I think I am, sir. What is his
character ? It is bad. Do you know as a
fact whether John Shaw has been tied up by the
thumbs for stealing, by order of the military au-
thorities in Fayetteville, within the last two
years ? 1 do. You know that to be a fact,
sir. I tied him up myself. In what capaci-
ty were you acting at that time ? Orderly Ser-
geant. Orderly Sergeant of what ? Of the
focal police. Who was the Captain ? Capt.
Orrel, sir. And he was charged with cattle
stealing? Yes, sir. And you were ordered
to tie him up by the thumbs, and you executed
the order ? I did, sir.
Cross-examination by the Counsel for the pro6-
ecution:
What is your first name 1 Ichabod. How
long have you been living in Fayetteville ?
Fifteen years, sir. Have you been in the
same business during all that time time, that you
are now ? I have, sir ; I served an apprentice-
ship there. You say you were an orderly ser-
geant of the local police, you don't mean you be-
longed to the United States army ? No, sir, I
was orderly sergeant of the local police that was
formed there by Colonel Cumin. What was
the date of Archy Beebee's death ? The 11th of
February. At four o'clock iu the afternoon ?
CONVENED AT RALEIGH, NORTH CAROLINA.
143
About four, sir. At what time that day did you
first see Capt Tolar/ I don't think I saw him
during that day until I saw him at the market
house? What time did you first see him at the
market house ? I saw him there sometime be-
tween the hours of three and four. Where was
Archy Beebee when you saw him there; had he
gone up stairs, or was he still at the guard house
when you first saw Capt. Tolar ? He was up
stairs. Where were you? 1 was standing on
my corner. Where was Capt. Tolar ? He
was standing about the center of the pavement.
Did he stand there until the shooting took place,
in the center of the pavement ? He was stand-
ing there until the shooting ; the last I saw of him
he was standing there. Was he standing there
during the whole interval of time when you first
saw him, and when the shooting was done ? He
was. How long an interval? I should think
it was about five minutes. You saw him stand-
ing there five minutes before the shooting took
place ? Yes, sir. That was the first time you
had seen him that day? Yes, sir. Did you
Bee Archy Beebee when he was brought up from
the guard house ? I did not, sir. How do
you know he was up stairs ? I heard that he was.
We are asking about your own knowledge ? I
don't know of my own knowledge that he was up
stairs. You don't know where he was when you
first saw Capt. Tolar standing there? Not of
my personal knowledge. How Jong had you
been standing there on the corner of the pavement
when the pistol shot was fired shat killed Archy
Beebee/ . I should think I had been standing
there probably about eight minutes, not exceeding
ten. Where were you before you were standing
there? I was in my store. All day? I
might have been about the street some during the
day. You came from your store to that point /
Yes, sir. You came from your store and stood
there about eight minutes until it was done ? I
should think so. Did you notice any extraordi-
nary crowd at the market bouse that day ? •' I
should suppose there was forty or fifty. You
have frequently seen as many there before on the
occasion of a trial ? Yes, si'-. No excitement
was there ? There didn't seem to be. Every-
body was calm and cool ? Everybody was calm.
Did you hear anything of the allegation that was
made against this negro Beebee that he had at-
tempted to commit a rape upon a white woman ?
I had heard it during the day. Did you know
his trial was going on at that time ? 1 did not,
sir; I was busy in my store at t^e time. During
the eight minutes that you were standing there,
in this crowd of forty or fifty, which was about
the ordinary crowd that gathers at the time of a
trial, did you see anybody that you .knew ? I
don't recollect recognizing anv one except Capt.
Tolar. He is the solitary soul you saw in that
crowd that day ? The only one I remember see-
ing. Did you see him from the first time that
you were standing there at that point on the pave-
ment until the pistol was fired ? I did. Had
vour eyes on him all the while? I think I did.
Never lost sight of him once ? I don't think I
lost sight of him once. You say you can't re-
collect a single person you saw in that crowd that
day? I don't recollect any person, as I 6aid,
except Sheriff Hardie and Tolar. Was any one
else in that crowd ? Not that 1 recollect of.
Didn't you notice Tom Powers that day ? No,
sir. Didn't you see Monk Julia. If I did, I
don't recollect it. Didn't you see Ed. Powers
that day? I did not. Didn't you see Sam.
Hall/ I did not. Didn't you see J. G. Leg-
gett? I saw him after the shooting was over.
Didn't you see him in that crowd? No, sir.
You say there was a crowd of forty or fifty?
Yes, sir. Were they all black people? No,,
sir. Part colored ? Yes, sir. What pro-
portion were colored ? I could not tell what
proportion. Were they in part colored people?
They were all mixed together. They were not
strangers ? No, sir. You saw no one you
you knew except this man Tolar? No, sir, I
recollect no other person. Y ou kept your eyes
fixed on him intently for eight minutes/ I
should think I did. You were looking at him
when the pistol was fired ? I was looking at
him when the pistol was fired. Did you see-
the. negro when he was coining down on the
steps ? I did. Who was with him at that
time? Sheriff Hardie and some police. Who
were the police ? Faireloth and McGuire, I
think. Then you saw them in the crowd that
day. , I saw them on the steps. Didn't they
go in the crowd ? I didn't see them in the
crowd. You didn't see Hardie in that crowd?
I saw Hardie as he came around the corner.
Did'nt see Wemyss in the crowd ? I don't re-
member. The only thing you saw of these po-
licemen was on the steps ? I saw them when they
came down the steps. Did you see them after
they got immediately to the bottom of the steps?
I could not see them. It was only while they
were on the steps you saw them? Yes, sir.
When did you loose sight of the prisoner ?
When my view was obstructed by the police.
You lost sight of the prisoner after he got to the
foot of the steps ? I lost sight of the prisoner
after he came down to the foot of the steps.
And you didn't see him any more until he went
down near the arch ? I saw him when he went
down near the arch. Didn't you see him when
he turned out of the large arch ? I could not
see him when he turned. You could not seehim
when he came out of the main arch of the mar-
ket house, on the pavement? No, sir. I
mean when he turned out of the arch ? I saw
him then. Was any assault made on him then ?
I saw a lifted position of hands as if demanding
him. Didn't you hear any sound? 1 could
not tell. Was that crowd as still as death ? I
don't think it was. Didn't you hear any noise ?
I heard a rustling about the pavement as of the
feet of the crowd. Nothing but the feet of the
crowd? I heard nothing else. No word
said? J heard nothing. Were your ears
stopped, sir? No, sir. You say you heard
no sound except the rustling of men's feet? I
heard nothing of the kind. Nothing of what
kind ? Of the voice of any persons ? I
didn't ask you if you heard any voice; I asked
you if you heard any noise ? I heard no sound
except the rustling of feet. That was the only
sound that you heard at the time Archy came
out of the arch ? That was the only sound I.
heard that I recollect of. You said in your ex-
amination in chief that you saw, as you supposed,
a demand made manifest? I saw hands raised
,as I supposed in a demanding position, but heard
no words. How many hands did you see ? I
saw two. Were they hands belonging to the
6ame man ? I think they were. That was
the only thing you saw of any hands ? That
was the only thing I saw of hands. Didn't you
see anything of a rush or pressure made upon the
prisoner? I did not. Didn't you hear any
thing of the Sheriff's telling them to keep
off—to stand back ? I never heard it.
Didn't you see anything of an attempt of the
police to use their clubs there ? No, sir.
Did any such a thing happen ? I could not
tell of my knowledge, I \^as not in the crowd.
But you pretend to have been so near that you
can speak of seeing a particular man for eight
144
PROCEEDINGS OP A MILITARY COMMISSION,
minutes ? I could not see the boy, as I said;
the crowd was around the boy. You say you
saw two hands ? I did. What was the
position of those hands ? (Witness represents
position of the man's hands. Both hands raised
as nigh as his head, about two feet apart, with
the palms from his face.) You saw a man
standing in a crowd of moving men with his
hands in that position ? I did. And you
construed that into the demand ? That was
my impression. You say there was no rush ?
I saw no rush. You saw no use of clubs?
I saw none. You saw no effort of the crowd
to get at the prisoner Beebee ? I saw noth-
ing except what I have told you, the demand
as I supposed it to be. What became of
Capt. Tolar after the firing of the pistol ? I
went into the store, and I don't know where he
went. Didn't you look, to see who fired the
pistol ? I did not see who fired the pistol.
When the pistol fired, didn't you look in that
direction ? I turned my eyes in that direc-
tion. What became of Capt. Tolar then ?
When I looked around he was stiff standing
there; immediately I turned and went to my
store. How was he dressed ? I could not
tell about his dress more than he hqd on a
shawl. Did you see what sort of a hat he
had on ? I don't remember. Did he have
on his spectacles that day ? ■ I don't-remem-
ber that. You remember nothing about him
but his dress? Hone of his dress but his
shawl. What was he doing ? Standing
still. With his his arms folded upon his
breast, or hanging loose ? I could not tell
about that, sir. Was the crowd moving all
about him? There seemed none moving in
the rear of him; the crowd was moving in
front. He was in the rear of the crowd ?
Yes, sir. Did you see that pistol that was
fired that day ? I did not, sir. All you
saw was the smoke ? That was all. You
heard the report ? Yes, sir. Have yop.
ever talked to Capt. Tolar about this business ?
Never spoke with him upon this subject at all.
Have you ever testified upon this master, at
all ? No, sir. Ever told any one what
your testimony would be ? No one except
the Counsel. When was that ? That has
been a month or more, I should think. You
have never told any one before V I never
had. Do you know how the Counsel found
out what you would testify to ? They found
it out when I told them. How did you come
to tell them? He asked me. Do you
know how he come to ask you? Yes, sir,
I told him I was standing on the comer. How
came you to tell him that ? We had a con-
versation about this thing; he was a Counsel for
the prisoner and I told him of it. Did he come
to you or did you go to him ? He came to me.
How did he know you were the proper person to
come to ? I don't know, only he knew that I
was standing on the corner as I told him. How
came you to tell him that ? Because he was
the Counsel for the defense and I wanted him to
know it. Didn't you tell him you were going
to swear Capt. Tolar didn't shoot the pistol 1 I
did. Are you any relation to Capt. Tolar ? I
am not, sir. Are you a Mason ? I
am. Is Captain Tolar a Mason?
I think he is. Don't you know he is ? I
don't know with my personaal knowledge more
than I think I have seen him at the Lodge ? Isn't
that as good a personl knowledge as you could
have ? About all I could get unless I had seen
him made a Mason. Have you any special
friendship for Capt. Tolar? None in the world.
How long have you known him sir ? Two years
I suppose. Did you go over and see this boy
after the shooting ? I did. Who did you see
there then? I don't remember who I saw. You
must remember some one that you saw in the
crowd ? I don't know that I do. Don't re-
member a single person ? There were several
persons passing about to and from, just as I did.
I simply wanted to know who was there; you
certainly must recollect some one. I remember
some that were there after the killing ; I saw Mr.
Blake there then. Let ns know who was there
after the killing ? I remember seeing Mr. Blake
there. What is Mr. Blake's first name ? Isham.
That was while the negro was lying there ? It
was some time after the killing. An hour ?
I should not think it was. The negro was still
there ? Yes, sir. How long do you suppose
it was ? It was a quarter of an hour or more
after the crowd had somewhat dispersed; I paid
no attention to who was there; I dont remember
who was there. You don't remember who was
there ? I do not. Not a soul ? Yes, sir;
I told you I remembered Mr. Blake. Let us
have some more ? I don't remember who they
were, as I didn't charge my memory with them.
Can't you remember any others who were there ?
I don't at present. Will you try to recollect,
sir ? I don't remember who they were. Have
you made an effort to recollect ? Yes, sir ; sort
of refreshed my memory. Suppose you made
a great effort ? I don't remember sir. You
say you didn't go over there till a quarter of an
hour after the boy was shot ? . About a quarter
of an hour. You went from the crowd back
into your store? Yes, sir. You stood there
fifteen minutes? I don't know that I stood
there all the time. You didn't go away from
the store? No, sir. You didn't go away
from the store from the time you went from the
corner into the store to the time you went over to
see the negro ? I might have been out around
the door or on the pavement. You were not
away from the immediate neighborhood of your
store during that time ? I don't think I was.
Who else was there ? My workmen. Who
were they? - A man by the name of Carter and
one by the name of Mr. Webster. Anybody
else there? Mr. Webster was in the store.
Any one else that you remember seeing, during
that fifteen minutes ? No other person in the
sto^e, except a couple of black boys, and a couple
of white apprentice boys. Give us their names?
One of their names is Joseph Sochamy. He
is a black boy ? He is a white boy. What
is the other ? The black boy's name—by the
way, they were not at the store; they were at the
river putting a roof on a steam-boat, their names
are George Grange and George Smith. The
white ones'were there ? One was there. You
stood there at the store and about the store fifteen
minutes? Yes, sir. ■ And you can't recollect
CONVENED AT RALEIGH, NORTH CAROLINA.
any of these, men, after exerting your memory to
the utmost? I did not charge my memory.
Now sir; perhaps if I give you some names you
can tell me whether they were there or not.
I don't think I can tell of my own knowl-
edge; I stayed there hut a few minutes; I
went to look at the hoy and looked at him,
and went away. Don't von think you can
tell me' who was there if I named them ?
I could not tell of my own knowledge. Did
you see Ed. Powers there ? No, sir. Did
you see J. G. Leggett ? He passed me on my
corner twice. When was that ? Immediate-
ly after the killing he passed down from the mar-
ket—he came from that direction, and went down
to Mr. Burns' store; he and Mr. Burns went back
to the market. And he came from the direc-
tion of the market house ? Yes, sir. And
went back again ? Yes, sir. Did behave
anything to say to you at the time he passed ?
No, sir, I didn't speak to him. Did you see
Henry Sykes there ? If I did, I don't recollect.
Did you see Calph Lutterioh there ? I didnot,
I don't remember seeing him there through the
whole day. And this"man Isham Blake is the
solitary person ? He is the only person that I
remember, and I doh't know that I would have
remembered him, only he summoned me in the
coroner's jury ; but I didn't serve. Why didn't
you serve? I was not drawn. You were
summoned ? Yes,sir, but did not serve. How
many were summonned ? Well, I didn't ask ;
I suppose the usual number which is twenty four;
out of that they draw twelve. Did you ask
to be summoned/ I did not sir. Did you
try to avoid it ? I did. You say you know
the general character of John Shaw for truth and
veracity7 ? I do. Who have you ever heard
speak of his character for truth and veracity ? I
heard a number of person^ speak of it. Give
us one—now mark you—you are on your oath ?
I beard my brother speak of hiin. When ?
Some time ago. Since this man was murdered?
No, sir. Before ? Yes, sir. You heard
your brother; what.is his name ? His name is
John M. Davis. What did he say ? I beard
him say he would not believe him on oath. What
was the occasion ? It was in connection with
this cattle stealing scrape. Who else have you
ever.heard say so ? I don't remember any per-
sons just now. Do you pretend to say ttat you
know what the people in the neighborhood gene-
rally say of a man when you can't tell but what
you own brother has said of his character ? You
said you knew his general character for veracity,
and his general character for veracity is what the
people generallly say about him where he lives;
that is now the question, do you know that? I
don't know what his neighbors think of him; I
don't know what is generally said of him by the
community : if that is the question I don't. So I
I presumed at the time you gave the answer. I
understood Mr. Fuller to ask the question to me
directly. Mr. Puller asked you the question
which was required by the law; do you know the
general character of so and so for truth, not what
you thought of him. I didn't understand the
question that way. Then you don't know wheth-
er he has got any reputation for truth in one way
or another in his neighborhood? You don't know
what people generally say about him; you and i
your brother don't think you would believe him '
on oath ? I didn't say 1 would net. You
don't think his character is good because your
brother would not believe him ? No, sir. That i
is your reasou for thinking his character is bad, is i
it? My reason for thinking his character is 1
b d, is that he was convicted of stealing, and was i
hung up by the thumbs as a punishment. Now
you give that as a reason for knowing bis general
character; that is the way you know the general
character, is it ? I understood the question di-
rected personally to me; what I thought of his char-
acter. Do you say that what you think of a
man's character always is his g neral character ?
> No, sir, I understood the question personally to
i me, what I thought. But there is no misappre-
' hension about the question, for attention was
I drawn to it at the time, and tLe Counsel was es-
pecially held down to the question which the law
requires : do you know the general character of
so and so, and you say you didn't understand that
. question. I did not, sir. You don't pretend
to know his general .character? Not what his
neighbors say of him. That is his general char-
acter. I don't pretend to know. You don't
know what the neighbors generally say ? I do
s not, sir. You never heard it called in question
1 except in the single instance ? That is all that
I remember. Now, sir, about this hanging up
by the thumbs ; was that a trial before the milita-
ry authorities ? It was a trial before Capt. Or-
rel. Wasn't it before a civil magistrate'who
was acting at that time as captain of the local
police, wasn't he a civil magistrate!? He
was. Was this execution under military au-
thorify at all? It was, as I understood it;
, as he was acting as captain of the local police.
This conviction that you speak of was before a
civil magistrate ? I think it was as he termed it
a military court, or he was acting as a captain.
When was that ? It was the Spring of '66, soon
after Col. Curwin left there. What was the
charge against this negro ? Cattle stealing, sir.
He stole a drove I suppose.? I don't know how
many; cattle stealing was what I understood.
Didn't you hear what it was alleged he stole? I
did not, sir. Who told you ? Capt. Orrel told me,
it was in the order he gave me for the execution
of the punishment. Where is the order ? I don't
know, sir. Was it a written order? Yes, sir.
Have you got that order ? I don't know whether
I have or not. Tou undertook to tie a man up by
the thumbs, execute the sentence of the law upon
him, and have nothing to show tor your authority
for so doing? I had the order at the time, and
may have it now; I don't know that I have.
Then you don't know anything about his having
stolen cattle ? I know that was the charge against
him. You know that was the charge against him;
you were not present at the trial ? No, sir. How
aid you know the charge ? According to the or-
der I had. You know you have an order telling
you there was such a charge; you don't know
what the charge was; you were not present at the
trial? No, sir, I only saw the charge given to me»
on paper. That was in the charge was it, thao
was an order '• to hang the negro up by the
thumbs".? That was an order. And that was set
out the charge against him? Yes, sir. I ask you
upon oath, do you remember that that set ouc any
charge at all ? It did set out a charge as cattle
stealing. You swear positively that that order
set out a charge, as well as the order for you to
execute this punishment? I do. What has be-
come of that order ? I don't know, sir, I may
have it, or I may not. Can you tell me where 1
would be likely to find it without your having to
go after it ? iou could not find it without I was
/to go for it, and I don't know tiiat I could produce
it at all. This order was from who ? Capt. Or-
rel. He Was not the military commander of Fay-
etteville? No, sir. He was not in the Uuited
States service at all was he ? No, sir. You didn't
see Beebee when he was carried up to the market
house that day? . No, sir. You were out there
about eight minutes before he was shot ? I think
146
PROCEEDINGS OF A MILITARY COMMISSION,
*o. Don't you know ? Yes, sir. What did you
go out there for? I went out of the door. What
for ? I could not tell; it was natural to walk out
around my own door. You went and stood per-
fectly still ? I was standing on the corner; Did
nothing attract you out there? Not that Ire-
member of. You just walked out by chance, and
was attracted by Capt. Tolar, because he was a
large man ? And he was standing still. And the
rest of the crowd was very boisterous ? The crowd
in front of him were moving around. Were they
very boisterous? I should think not, sir; They
made no exclamations, and no noises that you
heard ? Not that I heard. And yet the distinc-
tion between them and Capt. Tolar was so great
that it distracted your attention from them en-
tirely, although you knew the prisoner was in
their midst at the moment and your whole atten-
tion was absorbed by him for eis*ht minutes ? My
attention was fixed on Tolar. You never had your
eyes off of him? I don't think I did. You said
nothing to him ? I did not. You interchanged
no sigDS of intelligence ? No, sir. And you sol-
emnly swear that for eight minutes you stood
on that corner, and looked at Captain Tolar?
About that period of time. Without your atten-
tion being distracted by anything? Yes, sir.
What was the first thing that drew your attention
from him ? The pistol shot. Then you looked
off? I looked off. And you swear that the pis-
tol shot fired while your eyes were resting on
Tolar? It was. You swear most solemnly that
he didnt shoot that pistol ? I do swear most
solemnly that he didn't. It is impossible for him
to have shot that pistol ? He 'could not have
done it from where he was. four reputation
rests upon the fact of liis having shot the pistol.
1 can't help it, sir. It is so ? I think it does,
but he didn't shoot that pistol that killed that
negro. And you don't know who did shoot it?
I do not, sir. Yon didn't see anybody with a pis-
tol that day? I did not. You didn't see a pistol
in that crowd that day ? I did not. Yon didn't
see anybody wearing a pistol ? I did not. Noth-
ing to attract your attention or to excite yonr
suspicion that anything was going on that day ?
Nothing. Do you know any combination, or a-
greement between any men, or set of men to he
instrumental in the killing of the negro ? I nev-
heard one word of it. Do you know it ? I don't
know sir. You never heard it? I did not. From
Tolar ? I never spoke with him on the subject
in my life. Either before or after the killing ?
Neither before or since. Now sir, yon say Capt.
Tolar was the only man you saw in that crowd ?
The only man that I recollect except Sheriff Har-
die. Was there no man in that crowd as tall as
Capt. Tolar ? That is a question I can't answer,
I don't know—I don't know his height. Did you
know Archy Beebee when you saw him ? I did,
I know him when I saw him coming down the
steps. Was he a tall man or a short man ? He
was a medium sized man. What do you call a
medium size? Five, eight; five, six, or some-
thing like that; he' was about that height. Do
you Wear he was not six feet? No, sir. You
think he was a medium height? I think so, sir.
1 understand that you lost sight of Beebee at the
time'he got to the foot of the stairs and you nev-
saw him until he fell. 1 never saw him until he
got around the arch, and went down. Yon saw
him before he went down Yes, sir, after he got
around the arch I saw him. How far was Tolar
from him at the time you saw him ? Just as he
turned the arch, I should think he was five or six
feet. Standing where? Standing about the cen-
ter of the arch. In the middle of the pavement ?
Yes, sir About the centre of the large arch about
the middle of the pavement, as Archy Beebee
turned the arch, he was standing? Yes, sir.
Then you saw Archy Beebee until he fell ? I saw
him go down. How far did he go from the arch
before he fell ? I should think a couple of feet—
I could not tell the distance- exactly. You saw
him just then, and you saw him when he fell ? I
saw him go down. That was before be was shot?
Yes, sir. You saw him go down; did you see
him come up again ? I did not. Then while
you were looking at Archy Beebee, from the time
he turned, until he fell—did you see Tolar then ?
I could see them both. And anybody- else ? I
saw Sheriff Hardie? Did you see Beebee when,
he was shot ? I did not. Did you see him when
he fell ? I did not. You didn't see him again
until after he was shot ? No, sir. You say that
that crowd was quiet except the shuffling of feet ?
I said I heard no exclamation or any noise. If it
had been made you would have heard it; you
were close enough to hear it'! I was about fif-
ty feet from him. About the width of the
street ? Yes, sir. Any noise as a man's voice
could he heard that distance; you could hear
my voice that distance, couldn't you ? Yes, sir.
Any noise you could have heard then? Yes, sir.
You think if there had been any noise you would
have heard it? Yes, sir. And you didn't hear
any noise; nothing to attract your attention ? I
didn't hear it, sir. You didu't hear any noise
there was no noise or confusion in the crowd to
the best of your belief and recollection ? There
was no noise, as to confusion I could not tell, as
I was not there. You could not tell; why? Be-
cause I was not in the crowd. You could not see
the crowd; the crowd was in commotion ? Yes,
sir. The crowd being in commotion didn't at-
tract your attention, but a single individual in it
did, from his standing still as a statue ? My at-
tention was fixed on Captain Tolar.
Re-direet examination by the Counsel for the
accused:
Mr. Davis, how far did I understand you to sny
Captain Tolar was from- Beebee at the time the
pistol shot was fired? I should say it was ten or
twelve.feet. Were there many persons between
Beebee and Capt, Tolar at that time ? I should
say, sir, as well as I could judge, there was ten
or a dozen. And I understand you to say they
were in motion? Yes, sir. Moving about in
every direction? Yes, sir. And Tolar stood
there still ? He was standing still.
Questioned by the Commission:
Did the crowd, in moving out of the arch at
the time Beebee was brought out, pass between
Tolar and the south side of the arch ? They did,
sir; they passed between him and the south side
of the arch. Now how far was7Mr. Tolar stand-
ing from the south side of the arch? I should
think it was four or five feet. Didn't you say a
few moments ago that it was three feet. I said,
sir, if I remember right, that it was about two
or three from where Beebee went dowu the first
time. From the south side of the main arch
didn't you say Captain Tolar was standing about
three feet ? I don't remember it, sir. You say
this crowd passed between Tolar and south side
of the arch ? Yes, sir. And the crowd that were
following him up? All the crowd didu't. Did any
of them pass there ? I suppose they did. Did they
pass around the other side of Tolar ? I saw
more of them pass to the rear of him. You saw
Tolar all the time while this crowd was passing?
All the time.
On motion the Commission adjourned to meet
Saturday, the 17th inst., at 11 o'clock, A. M.
Raleigh, N. C., Aug. 17,1867. II A. m.
The Commission met pursuant to adjournment.,
CONVENED AT RAEE1GH, NOItTII CAROLINA.
147
Present, all the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
The reading of the testimony of George Smith,
Rufus Smith and John X. Smith, taken yester-
day, was waived, there being no objection thereto.
The testimony of J. B. Davis was then read.
Mr. Davis made the following corrections in
his testimony:
On page 1495, line 15, he wished to substitute
"South east corner," in place of "North east
corner;" making the sentence to read. " a little
to the right of the south east corner."
On page 1497, line 7, the witness said he did
not understand the question to refer to neighbor-
hood or general character; he supposed 'the
question to be addressed to him personally, what
he knew of his own knowledge.
On page 1526, he wished to substitute "1865,"
in place of "1866."
Yesterday's proceedings having been read,
were then approved.
J. G. Leggett, a witness for the defense, hav-
ing been first duly sworn, testified as follows:
Examined by the Counsel for the accused.
\Vhat is your name? J. G. Leggett. Where
do you reside? In Fayetteville. How long have
you been residing in Fayetteville ? About four-
teen months. Where were you residing before
you came to Fayetteville 1 Near Washington,
the eastern part of this State. What is yonr
business in Fayetteville ? Manufacturer of spirits
of turpentine and rosin. Were you at the market
house in Fayetteville, on the day that Archy Bee-
bee was shot? Yes, sir. At what part of the
market house did you enter ? At the east end of
the market house, where I went in at. Where
was the deceased man, Beebee, at the time you
entered the market house ? I don't know, sir; I
understood he was up stairs; I did not go up
there at all. How long after you reached the
market house was it before the deceased .man,
Beebee, was brought down ? Well, sir, I think
about ten or fifteen minutes. At what point of
the market house did you stop, when you first
went there ? I think I stopped .about six or
eight feet from the main entrance ; about eight
feet I think. Of what main entrance ? The east
entrance. Did you stop inside of the market
house or out side ? On the inside of the market
house. How long did you maintain your position
about that, place, inside the market house ? I
suppose, sir, I was there from between five and
seven minutes; I didn't notice particularly. Who
was with you while you were there ? There was
a number of gentlemen there; Mr. Ed Powers,
Mr. Ealph Lutterloh, Capt. Tolar, and I think
Mr. John Maultsby was there- Any one else ?
I think Mr. Samuel Hall was near the crowd
where I stopped, and Mr. Sykes. What Sykes ?
I don't know his name, a one-armed man. Sam
Hall and the one-armed Sykes 1 Yes, sir. Did
all of them continue standing there as long as
you remained in that position ? They
Ave re there, I don't know that they occupied their
position all the time, they were moving around
there, more particularly Hall and Sykes, and
Maultsby; they Avere ofl to the west end,
rathei further off than where I rvas from the
•ethers. Rather tOAvards tfie west end ? Rather
tOAvards the centre of the market, near the bell
rope. Was that at the time of your arrival ?
Yes, sir. During the time you were there in the
immediate company of Tolar, Ralph Lutterloh,
Ed Powers and John Maultsby, did any conver-
sation occurr between you and them or between
any person of that number ? Yes, sir; I went
there mainly to see what Avas going on, and they
Avere telling me what had taken place; it was
something that I had not heard of. With refer-
ence to the trial of the man Beebee ? Yes, sir.
We don't call noAV for anything that Avas said in
the crowd; Avas that conversation carried on in
an-ordinary tope of voice ? Yes, sir. Did you
see any Avhispering ? I did not, sir, I saw no
whispering at all. Could you state positively,
whether there was any whispering between those
parties at the time you were there or not ? If
there was I didn't see any. Was there anything
about the manner or demeanor of any of those
persons there that Avas calculated to excite sus-
picion, or to attract attention ? I didn't see any
sir. Did you remain in that position until Bee-
bee was brought doAvn ? No sir, I had moved a
little further towards the door, at the time he
came down, or at least when the ladyAvas brought
down. Were you in that position at the time
Mrs. Massey and her daughter came down the
steps? Yes, sir, when they came down I moved
a little towards the main entrance; I did not knoAV
them, I turned around and asked some person if
that was the lady. Who accompanied them
when they came down ? I think Mr. Bond. The
town Constable ? I think he is ; I don't know
for certain. What became of Mrs. Massey and
her daughter, did you see ? They were carried
to the carriage by Mr. Bond. Where was the
carriage standing? The carriage was stand-
ing off in the street near the side walk.
Off from Avhat potion of the market house ? J'
think it was standing off near the small arch.
Which small arch? The arch towards the
south corner. You think it was there ? Yes.
sir, I didn't notice particularly. Did you see
Mrs. Massey and her daughter when they got in-
to the carriage? I saw them get into the car-
riagc, Mr. Bond helped them in. Did any per-
son go from the crowd which was under the mar-
ket house, or near the market house, to that car-
riage, while it was standing there ? No, sir,
I saw no one go to the carriage at all, except Mr.
Bond. Did you see any person about the car-
riage at all, any male person except Mr. Bond ?
Yes, sir, I saw a colored man, who I supposed
Avas the driver. Was he occupying the driver's
seat ? Yes, sir. Did yon see any white man
at all about the carriage ? No, sir, I didn't see
any particularly, only passing around, you know.
Where were you standing sir, at the time the la-
dies and Mi*. Bond came down and went to the
carriage? I was standing about three feet, I
suppose in five feet, of the main entrance. The
east entrance ? Yes, sir. And under the mar-
ket house still? Yes, sir. Who Avas standing
there with you at that time ? Mr. Ed PoAvers,
Ralph Lutterloh and Capt. Tolar, and I think Mr.
Maultsby. Any body else ? There was others
that Avas off around as they generally are in a
crowd. I ask you sir, Avhether Capt. Tolar Avent
to that carriage at all ? I dont think he did sk.
MS
PROCEEDINGS OF A MILITARY COMMISSION,
Did you notice whether he did or did not ? No,
sir, I don't think he went, if he had I would have
seen him. You were standing with him? Yes,
sir, I am certain he did not go. How long a time
elapsed, between the ladies getting into the car-
riage, and the bringing of the. man Beebee down
stairs ? I (lout think it was more than five
minutes. During that time, between the getting
into the carriage, by the ladies, and the bringing
down of Archy, were you occupying the same po-
sition you were in. Very near the same position.
You didn't move out from under the market
house? No, sir. Was Capt. Tolar with you?
We were all there in a group. The same persons
that you have named? Yes, sir, we hadn't come
out from under the market house. When did you
go out from under the market house ? After the
bov was brought down. Did you see the boy
Beebee when he first marie his appearance on the
stair steps coming down ? Ye^s, sir, I think he
was very near the bottom of the steps when I first
saw him. You didn't see him then, when he first
made his appearance coming down the steps ?
No, sir, I think I first noticed him near the bot-
torn. Who was then with him ? I think Sheriff
Hardie and Mr. Wemyss, and one or two police
men, Mr. Faircloth I recognized, and I think there
was two others. Do you recollect on which side
of him Mr. Wemyss was? I think Mr. Wemyss
was on his right sir. Do you remember where
Sheriff Hardie was ? I think he was in front.
Do yon repiember who was on the prisoners left ?
I d® not sir, there was one more policeman I
think, that was along. Were you looking at the
prisoner, from the time you have described, till he
got to the floor of the market house ? Yes, sir.
From your position, looking at the prisoner,, could
you see that bench that runs to the east, or runs
to the left of Becky Ben's stall, coming down the
market house steps ? Yes, sir, that is nearly in
front of the stairway. At that time did any one
jump up on that bench •? No, sir, I didn't see
any one jump up on the, bench at all. At that
time,, when tliG prisoner was being brought down
where was John Maultsby ? He was off towards
the bell rope I think, near the center. Who was
with him sir ? I think Mr. .Sykes, and I believe
that Mr. Hall was near there. You think at the
time Maultsby was up near the center of the mar-
ket house, about the bell rope, and with him were
Mr. Sykes and Sam Hall—you mean the one
armed man? Yes, sir. Any body else there
with him, that you remember ? There were others
there, but I don't recollect who they were. Where
is the bell rope ? It is about the center of the
market house, generally it is fastened to a post.
And that is where Maultsby and Sam Hall and
Sykes were, at the time the man was brought
down stairs ? They were near' there when I saw
them last.. I ask you sir, whether you know it as
a fact or do not, whether any one jumped up on
that bench, at the time the prisoner was being
brought down, called Becky Ben's cake bench,
and made an exclamation of any sort ?
No, sir, I heard nothing of that, nor didn't see
any one jump on.the barrel. That brings them
to the foot of the stairs; how large was the crowd
at that time; I mean the crowd under the market
house, and the crowd outside? Well, sir, lam
not prepared to say; at that time under the mar-
ket house there was not a great many persons:
I don't suppose over twenty-five; there might
have been more. Outside do you know bow
many there were ? No, sir, I don't; there was a
considerable of a crowd there when I came up.
Up to the time of the prisoner's getting to the
floor of the market house was there any thing iu
the crowd that attracted your attention ? Noth-
ing at all, sir, only the prisoner; my attention
was directed to him. Were there any manifesta-
tions of excitement in the crowd ? None at all,
sir, that I saw. What occuried next, sir? The
prisoner come on round the stall there, and pas-
sed out between where we were standing and the
side walk. When the prisoner got down to the
floor of the market house, was your position at
that time the same you have described ? About
the same. Did you alter your position at all ?
I did not till the prisoner passed me. Did Tolar
alter his position, or did he continue to stand
there by you? We were all there, Mr. Powers,
Mr. Tolar, and Mr. Lutterloh, we all walked out
together from under the market. Any thing un-
usual occur to attract your attention before the
prisoner got out of the market house ? IS otbing
at all, sir. Then you walked out of the market
house, where did you go then ? I walked about
the center of the pavement and stopped there..
The centre of the pavement, where ? The east
end of the market house. Near the small arch,
or where? About the center of the large arch; I
reckon it was a little to the south of the center of
the large arch. And these persons went out there
with you ? Yes, sir. What did you do when you
got there ? I stopped there; I saw signs there of
a mob, and stopped. Did these that you have
named stop there too ? Yes, sir; then the pris-
oner Beebee was br ought down. Which corner
of the main arcli did he turn ? He turned the
right corner, sir. Right corner going east ? Yes,
sir. In turning that corner did he pass you and
Tolar and Ed. Powers upon his right of left ? He
passed to our right, sir; he passed just around
the corner, and he was on the right. That threw
yon on the prisoner's left? Yes, sir. You say
at that time you noticed some signs of excitement;
just state what they were ? As soon as I got out
on the street, on the side walk, I saw a young
man, 1 don't know who he was; I thought he was
tight, you know, attempting to strike the prison-
er; the sheriff then commenced trying to keep
the crowd hack, you know; that was the first
that I saw, and they still continued going on.
Who do you mean by they, the prisoner and the
party with him ? The prisoner and the men who
had him in charge; Mr. Wemyss, I think, was on
his right at the time. What was the next you
saw ? The next I saw they had got with the pris-
oner near the corner. Near which corner ? The
south-east corner. What occurred there? They
rather halted there, and this young man was carri-
ed off, I think; I thought he was drunk, he was
carried off by some person, I don't know who, hut
at least there was a large man come up and got hold
of him, and about that time a pistol went off, I
suppose it was a pistol, I saw the flash of a pis-
tol, and I saw Mr. Wemyss and the prisoner fall.
Did you notice whether the prisoner stumbled or
went down before the pistol shot was fired ? I
don't know, sir, I don't remember. There was
some exertions on the part of the prisoner, hut
there was a considerable crowd around. Now, at
the time the pistol shot was fired, just at that
time, did you see Tolar? Yes, sir, Capt. Tolar
was to my right. Now, at the time the pistol
shot was fued, where was Tolar standing ? He
was standing at the center ot the side walk, and
a little to the south side of the main arch. Was
Tolar on the pavement ? Yes, sir. Where were
you standing at that tfme ? I was standing a lit-
149
tie in front—to his left, and a little in front
nearer the center of the pavement than he was
How much to his front were you? Very little,
sir; Mr. Lutterloh was a little to my front and
to my right, and Mr. Ed. Powers was a little in
front of him and to my right; we all walked out
there together. Was there anybody nearer to
Tolar on the left than you were ? I don't think,
there was, sir. That was the position ot your-
self, of Tolar and of the balance of the party, at
the instant the pistol was tired? Yes, sir, that
was the position. Did Tolar tire that pistol ?
No, sir, he did not. Have you any doubt about
that Mr. Lcggett? None in the world, sir. You
swear positively and directly that Tolar did not
tire the pistol at that time? I do, sir. Was there
more than one pistol shot fired ? No, sir, there
was not. Do you know, sir, who fired the pis-
tol ? I do not, sir, I did not see the pistol. I
understand you to say that you saw the flash and
saw the smoke? Yes, sir. Well, sir, at what
point did you see the flash, and from what point
did the smoke arise? From where I was stand-
ing it was at angle of almost forty degrees, off to
my left. Left and rear, or left and front 1 Left
and front. An angle of forty degrees with yon
or with the -market house ? With the market
house—I mean the flashing was off directly to my
left. How far was it from Tolar ? I think it was
about eight feet from me. Was it further from
Tolar than from you? Yes, sir, he was to my
right then. How tar was it from Tolar ? It
must have heen at least nine feet. Could you tell
from the flash and smoke whether the person
who fired that pistol was off the pavement or
on ? He was off the pavement, sir. How far
was that flash and smoke off f rom the deceased
man Beebee ? I thought it was about three
feet, sir. At that time how far was Tolar from
the deceased man Beebee ? Well, sir, it must
have been at least twelve feet—ten or twelve feet;
I never measured the distance. Were there many
persons between Tolar and Beebee? Yes, sir, I
suppose there were about as many a* could get on
the sidewalk—about fifteen or twenty. Were
there persons standing still ? No, sir, they were
in commotion. Did Tolar advance upon Beebee
at all ? No, sir, he did not. At the time the pis-
tol was fired, was any remark made by any per-
son to Tolar ? I never heard any remark at all.
Did you make any remark to Tolar ? I asked
him or Mr. Powers, I forgot which, I sn'd
"did you ever see anything like that?"
and I turned off then immediately, and lelt the
place. When you left the place did you leave
Tolar standing there ? I left him there. Where
was Beebee at the time he was shot ? He was
near the corner of the pavement. Was he nearer
the market house, or nearer the center of the
pavement, or nearer the outer edge of the pave-
ment? I think he was nearer the outer eastern
ed£e of the pavement. So you turned off and
left Tolar, and this party that you were with,
standing just there? Yes, sir. Where did you
go then ? I went then over to Mr. Riley and
Burns'. How did you go ? I went around the
rear of the crowd, and struck the walkabout half
way from the market and Mr. Davis' corner.
What Davis' corner? J. B. Davis. Did you see
any thing of Davis then ? I passed him on the
corner. Where is that store of Burns and Riley,
to which you went; is it further east than the
store of Mr. Davis. lres, sir. Did you go into
the store? Yes, sir. How loDg did you remain
there ? Not over ten minutes. What became of
youthen? Major Burns and myself went back
again. Major Burns, of the firm of Riley and
Burns? Yes, sir,. Went back where? To
where the prisoner was shot. Did you pass the
store of J. B. Davis, on your return? Yes, sir
Did you see anything of him then ? He was there
still. Where was he? He was near the corner—
I think he was a little on the walk. Near his
own corner? Yes, sir. Did you go up to Beebee
the deceased man. Major Burns and myself
Avent up there, and looked at him. At that time
did you see anything of Tolar ? No, sir. I didn't
see Captain yolar any more that day. Is this all
you know about this matter? That is all I know
sir.
Cross Examination by the Counsel for the pros-
ecution:
What is your first name? Jordan, sir. Where
did you first hear of the attempt of the negro,
Archy Beebee to commit violence upon the young-
lady, Miss Massey ? I.heard it on the day!
reached the market house, the time I first got
there. What time that day ? I think it was be-
tween three and four o'clock. At the time you
first went to the market house that day ? Yes,
sir. Do you swear that you have never heard of
that matter in any shape form or way from any
person at all until you went to the market house
that day? I don't think I had sir; I think per-
haps Mr. Henry McDonald mought have spoken
to me in regard to it; 1 think perhaps he may
have told me at his store. At what time were
you at his store? I went to the market house
direct from his store. Are you positively certain
that you had never heard of that matter before
you heard that from Mr. McDonald ? I think
that is the first of my hearing of it. Have you!
thought of it well ? Yes, sir. And you swear
positively, that you never heard of this matter to
the best of your*recollection until you got to the
market house that day? I don't think I did, as-
I said before, I think perhaps Mr. Henry McDon-
aid might have spoken to me about it. That was
a few minutes before you got to the market house
but before that, you swear positively you didn't
hear of this ? I don't think I had. Aint you cer-
tain about it? I think I am certain of it.
Where Were you on the Sunday previous, the
tenth of February, sir? I was at the stilt
yard pretty much all day. How far is the
still yard from the market house ? I think it
must be a quarter ot a mile. Down what street
do you go to go there ? Up Hay street. From,
•the market house? Yes, sir. Do you go along
that street to go to Mr. William B. Wright's res-
idence ? No, sir, 1 don't know where William B.
Wright lives. Did you ever hear of the spot, the
locality of the road where this alleged violence
was attempted on that young woman ? Not until
that day. How far is that spot from your still
yard ? I don't know, it is, I reckon, a mile. Is
it the same direction from the market house that
the still yard is ? No, sir. Suppose you started,
from the market house, what street would you
take to go towards the locality of this first crime
of Archy Beebee; the place where it was alleged
that this act was committed ? I would go across
Eckles bridge. What street? I don't know the
name of the street. How far is that point from
the market house, weere it is alledged that this-
rape was attempted ? 1 should suppose it is very
nearly a mile, sir; I don't know, 1 never saw the
place but once. When did you see that place T
I saw it about a week ago, or two weeks ago, I
should think it was. Is that the first time and
only time you have seen it ? . Yes, sir. What was
the object of your visit there? I was passing
there, and Mr. Lett, I think, showed me the place.
Suggested that you should go and see it? No,
sir, we were traveling by it. You didn't go to
inspect it? No, sir. You say that on the Sunday
previous to the day when this alleged ravishing was
attempted, you ay ere at the still yard pretty much
150
PROCEEDINGS OF A MILITARY COMMISSION,
-all day, were you tliere all day. I don't think I
was. What part of the day did you leave there ?
I think I left there in the-evening. About sun
down ? No, sir, -about an hour by the sun. That
was the tenth of February ? Yes, sir. You had
heard nothing of this transaction up to this time?
No, sir, I went home from the still house to my
supper. Which way did you go to supper? By a
north cours.e; it is east of north, I think. Did
you hear any thing of this transaction ? 1 heard
nothing at all. You went home then'? Yes, sir.
Did you meet with any acquaintances on the way ?
No, sir. Meet with no one that you remember
speaking to on the way ? No, sir. Did you have
no visitor at your house ? No, sir. Did you
stop and take dinner at home? Yes, sir. Was
supper ready when you reached there ? No, sir.
You got home about sun down? Yes, sir. And
you staid there until supper? Yes, sir, I remain-
ed there all night. You didn't leave the house
that evening? No, sir. And you had no visitors
there that evening? No, sir, none at all. You
arq confident that there was none. Yes, sir.
And you heard no-thing up to that time ? I heard
nothing up to that time. You stayed in the house
all night. Yes, sir. What time did you leave
next day ? After breakfast. What time do you
breakfast generally. About, eight o'clock that
season of the year. You didn't leave the house
before breakfast ? I didn't go to the still. When
did you leave the house? About eight o'clock,
to go to the still. Didn't you leave it before ? I
might have walked out in the yard. It was the
first time you had left your own premises?
Yes, sir. "Had you had any visitors at your
premises that morning? None at all. You heard
nothing of this transaction at home ? No, sir.
When you left your house you went to the still ?
Yes, sir. Met no acquaintances- by the way?
No, sir; the first person that I remember being
in conversation with that morning, was a man
who I had bought out his cooper shop. He said
nothing about this? No, sir. Is he the only
man you remember meeting that morning ? Yes,
sir. Did you see him after you got to your still
house or before ? Before. What is his name ?
His name is Bryan Leggett; he lives in Robinson
County. Is he any relation of yours ? Yes, sir.
YVhat ? He is about a third cousin, I suppose
Y"ou had some business conversation with him?
Yes, sir. And you then stayed, how long at the
still house ? I stayed there until about eleven
o'clock; I then went around to the shop where I
had bought out, and then went back home and
got dinner. Where is the shop? On North St.
How near is that to the market house ? I don't
recollect sir; I reckon it is prehaps not quite half
a mile. From your still house you went to your
shop ? Yes, sir, You had just bought it out ?
Y"es, sir; bought it out on Saturday. Did you
meet any acquaintances on your way to that
place ? No, .sir ; up to that time I had very few
acquaintances in the place, Did you meet any
acquaintances at the cooper shop ? No, sir. Did
you have the keys to the shop ? No, sir. Was it
locked ? No, sir ; there was no key to the shop
the shop was open. Were the men at work?
No, sir ; not at that time. You found the shop
■deserted? Yes, sir ; he had left to go over the
river. You left your stilling place at 11 o'clock
and went to this cooper shop direct from the stil-
ling place ? Yes, sir, Where did you go from,
there ? I went back to the still. Had no con-
versation with any one on the way ? No, sir.
How long did you remain there then ? Until
about half past eleven o'clock. Y'ou had no eon-
versation with any one at the still ? No, sir ; I
went home to dinner at half past twelve, and af-
ter I got my dinner I went by the still, and went
on down town. Yon had seen no one, and had no
idea that such a thing had transpired ? I knew
nothing' of it. YTou went down town on business
or pleasure ? I went down on business ; I went
down to see, Mr. Reiily, and Burns, with regard
to money matters; about Mr. Leggett for his
timber. Were these acquaintances of yours be-
fore you went to Eayettcville ? No, sir; we were
both engaged in the same business at that time.
Were tliey connected with you in an}' way ? No,
sir.. Yrou went with the purpose of making some
money arrangements with them? Y'es, sir. In
going from your house, I think you said after
dinner yon didn't go back to your still ? Yes, sir.
In going from the still to see Messrs llielly and
Biu-ns, who was the man you said you saw and
spoke to on this subject ? Mr. McDonald; I
went immediately to his store first; I owed him
for some turpentine that he had bought for me
ou Saturday. Y"ou went to Henry McDonalds as
well as to Messrs Iiielly and Burns on business ?
Yes, sir. Did you pass by Henry McDonalds in
going to Rielly's and Burns; is that in your
route? No, sir; not directly; I passed around
Mr. Hinsdale's corner to my right to go to
his place. What street were you going down
when you turned to your right? Hay St.
If you bad gone directly straight ahead, you
would have got to Reilly's and Burns'? Yes, sir.
But before going there you turned to the light
and went to McDonald's ? Yes, sir. That was
just before you went to the market house ? Yes,
6ir. Then your first visit to Reiily and Burns' was
made after this shooting took place? Yes, sir.
But you say your object in going there was to see
them on business. You can't say whether My.
McDonald spoke to you or not of this matter?
It appears to me he did; I think I asked him
what all that crowd was doing over there, and I
was in a hurry and it was getting late. Did you
see Mr. McDonald in the market house in the
crowd afterwards ? I did not, sir. You went to
McDonald and from there directly to the market
house? ' Yes, sir, I got on the pavement, about
at the south west corner. Then you went into the
arch and walked iu about eight feet, I understand
you to say? Yes, sir. How long was it after
you first got there before Archy was brought
down stairs ? About ten minutes. When you
got there did you march right up the center of
the market towards where the bell rope is ? Yes,
sir. There you encountered who ? 1 found there
Mr. Hall, Mr. Lutterloh, Mr. Powers, Capt. jTo-
lar, Mr. Maultsby, Mr. Sykes and a number of
other gentlemen. When you first entered the
market house, were Mr. Ed. Powers, Ralph Lut-
terloh and Capt. Tolar standing together? I
think Capt. Tolar was standing off rather to the
left. To the left as you went, sir? To the right
of me as I went in. Was he standing or sitting ?
Standing. Nearer the center of the market house
or nearer the wall ? Nearer the wall on the right.
And these other gentlemen were standing near
him : Lutterloh and Powers were the nearest to
him? Yes, sir. They were the nearestindividu-
als to him that you saw ? I think they were
about as near as anybody that I noticed. Don't
you know that they were nearer than any
body else? Tbey might have been as near as
anybody else. Were they as near as men usu
CONVENED AT RALEIGII, NORTH CAROLINA.
151
ally are in public place and conversing togeth-
er. Yes, sir. Were they carrying on a con-
versation with one another? I didn't notice.
Dfd you go up and speak with thein and shake
hands with them ? I don't think I shook hands
with them at all. Mr. Leggett, were any of these
gentlemen armed? If they wee, I didn't know it;
I did not see any weapons at all. You saw no
weapons then ? No, sir. Do you know whether
any one of those gentlemen was armed around you?
I don't know, sir. Did you see any belts on any of
them? No, sir. Did you see any protuberances
about the breast, chest or back, where a man might
wear a pistol ? I don't think that I did. Nothing
that attracted your attention ? No, sir. Neither
belt nor pistol ? I saw neither. How was Capt.
Tolar dressed that day ? I think he had on a
shawl, and a rather light suit if I am not mistaken.
A grey suit? Yes, sir. Did he have on specta-
cles? I don't think he did. Do you remember
whether he had on a cap or hat? A hat. What
sort? I think it was raiher an ordinary hat,
something about the shape of this (a low, flat top
crown and narrow brim.) A black hat? Yes,
sir. And you saw no weapons up to that time in
the hands of anybody ? No, sir. Now, when you
got to the market house at that time, how many
were inside of the market house ? I suppose there
must have been twenty or twenty-five persons; or
there might have been more or less. In going
through and passing along the side walk and en-
tering, did you see any groups outside ? There
was a number of persons at the east end. Were
the people scattered all about out there ? Yes,
sir. How manv men do you suppose there were
on the outside ? I should suppose there were be-
tween forty and fifty. Forty or fifty beside the
twenty-five inside ? No, sir, all together. Do you
think there were more inside, or out ? I think
there was more inside. You will estimate them at
the uttermost at twenty-five ? Yes, sir. And out-
side you don't think there were as many ? I don't
think there was. And it was about the usual num-
ber of men standing there when nothing was go-
ing on ? No, sir, not unless it was in holidays, or
something of that sort. There were rather more
than the ordinary crowd at the market house; was
it more than the ordinary crowd upon public occa-
sioi}s ? No, sir, I don't think there was more than
I had seen on public occasions. You say after en-
tering there, you stayed until Archy came down,
about ten minutes ? I should think about ten min-
utes. And that you stood there with Capt. Tolar
until Archy came down? Near there, sir. Capt.
Tolar didn't go out of your presence till the negro
came down ? No, sir. He was not on the outside
of the pavement at all duiing these ten min-
utes? No, sir. He was not out during five
minutes before the negro came down ? No,
sir. Nor within three minutes of the time
the negro came down? No, sir. He was
not out within one minute of the time the negro
came down ? No, sir. He was inside of the
market house in your presence ? Yes sir. You
are certain about that / Yes, sir. And he didn't
leave your presence? He didn't leave my pre-
senee. While you were standing there with these
three gentlemen, Powers, Lutterloh and Tolar.
you say you saw Sam Hall, Henry Sykes, and
John Maultsbv together? Yes, sir. They were
standing near "the center of the market house?
Yes, sir. Near about where the hell rope hangs
down in the center of the market house. Yes,
sir. And you were not as far back as the center?
I was nearer the front. How were you standing,
with your face to the west ? I was facing at the
time to the west? And they Iwere standing at
that time to yourleft, and west and south of you ?
They were standing in front of me. How many
paces from you ? I don't know sir, two or threo
steps 1 suppose—four probably. They were
standing about in a line witli you ? Three or
four steps hack. Did these two groups of gen-
tlemen get together at all ? No, sir. When you
walked out or when the prisoner came down what
became of them ? I dont know what became of
them. When you last saw them were they stand-
ing at that point ? Yes, sir. Did you see any of
these gentlemen have weapons that day ? I did
not, sir. Did you see any marks of any weapons
about them ? I did not. Have you never heard
any of this first group of gentlemen that you have
mentioned, say since that he had a weapon that
day? No sir. Have you heard Ed. Powers or
Lutterloh or Tolar say so ? No, sir. Have you
heard Sam. Hall or Sykes, or Maultsby say since
that day, that he had a pistol ? No, sir. You
neither saw any pistol that day, nor have heard
these gentlemen say that tliey had a pistol or any
weapon that day; I understand you swear that
positively ? Yes, sir. You have been in their so-
ciety since? I have sir. While you were stand-
ing at the point you first went to, when you went
into the market house, about eight feet from tho
entrance near the center, it was while you were
standing there that Miss Massey and her mother
came down stairs, was it ? Yes, sir. Did you
turn about to lock at them ? Yes, sir. Did you
move nearer to the arch ? Yes, sir, Nearer to
the front? Yes, sir. How much nearer? I sup-
pose a couple of paces. You faced about and
moved a little to the right and front ? Yes, sir,
I faced to the left. You moved towards them ?
Yes, sir. Where did that bring your position ?
That made me about five or six feet from the
main entrance. You were looking towards the
foot of the stairs ? Yes, sir. And followed them
with your eyes as they passed out of the arch?
Yes, sir. When you moved your position to-
wards where they were going, what became of
Ed. Powers, Ralph Lutterloh and Capt. Tolar?
They were there. Were they following? Yes,
sir, we a! 1 moved on towards the door. You m ov-
ed together? Yes, sir. Was there any proposi-
tion that you should move together—anybody say
let us go forward ? None at all. It wasanunpre-
meditated movement ? Yes, sir. As these ladies
came down you faced about and moved towards
them? Yes, sir, rather towards them—there was
a bench in front of us. Now sii, in moving to-
wards them was Capt. Tolar behind you or before
you ? Mr. Tolar, I think, was rather behind me,
sir. Did you see him then? Yes, sir, he was
there as soon as they passed on. Did you see
him while you were changing your position, while
he was behind yon ? No, sir. But you know he
was just behind you, and when you saw him again
he was close to you ? He was, when I saw him
again. At the moment you weie changing your
position you lost sight of him ? Yes, sir. In
movirg towards this new position you moved
two or three steps ? I think that we moved to
about six paces from the main entrance. Capt.
Tolar, you say, came behind you? Yes, sir.
Where were Ed. Powers and Ralph Lutterloh?
They were near me, I was in front of them at the
time she came down. You stood in the front
after you got to the stationary position the second
time ? Yes, sir. Did you see Tom Powers there
that day? I don't know him, sir, if I saw him
that day I did'nt know him. You don't recollect
seeing that pox marked faced man, (pointing to
Mr. Powers?) No, sir. Do you know Monk
Julia ? No, sir. That man passes by that name,
on the left of these in the group, (pointing to
Monk Julia,) did you see him that day? I don't
know that I did; there was a man about his size,
I don't know whether it was torn or not. Ypu
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PROCEEDINGS OP A MILITARY COMMISSION,
didn't know him at the time, and you can't say
whether this man was there or not? No sir, I
could not. When the ladies came down stairs
you and Capt, Tolar, and Ed. Powers and Ralph
Lutterloli all stood still and let the ladies go out
to the carriage? Yes, sir. Did you remain there
until the negro came down stairs? Very near
that point. How far did you move from it ? We
stood about there till the negro came down. You
6aw Miss Massey come out to the carriage?
Yes sir. Do }mu know Mr. Bond? I know him
by name. You knew the man that was with them
that day was Mj\ Bond? Yes, sir. Where did
you say this carriage was standing? It was
standing off nearly opposite the center of
the arch, at the south end of the market.
The south arch of the east face? Yes,
sir. How far was it from the pavement ? It
was very near the pavement. You could have
stepped from the pavement into the carriage ?
I think perhaps it was six feet, I didn't notice
very particularly. Can't you say with certain-
ty ? I can't. Can't you say whether twelve
feet? Yes, sir, I don't think it was as far as
twelve feet. You think it was about six feet ?
I should think it was about six. Was the
carriage there when you came? Yes, sir. Do
you remember noticing it? I don't, but I
think it was there. But you don't remember
whether you saw it at that time ? No, sir.
"When was the first time you remember seeing
it, when the ladies went out? Yes, sir, that
was the1 first time I noticed the carriage. How
long did the carriage stand after the ladies
went to get into it, before it moved off ? It
moved off very quick after they got in. As
quick as it could be done ? I don't know
about that. You saw no friend of these ladies
go to the carriage and talk to them ? I saw
no person go to the carriage except Mr. Bond.
Then it went off as soon as the ladies got in ? I
think it did. You didn't see any body go to
the parriage except Bond ? That was all the
male person I saw go to the carriage. Did you
see any females? No, sir, except those that
got into the carriage. Were your eyes fixed
on the carriage all the time ? No, sir. You
don't pretend to say that others might not have
gone to the carriage and you not have seen
them ? I don t think they did, but they might
have. It is within the range of possibility ? I
dont think any went there. You don't think
one or two, or three, or five or six persons in
succession could possibly have gone there?
No, sir, they could not; I don't think it is pos-
sible that one could have gone there without
my seeing them. And you say Bond jvas the
only person that went there ? He was the
only person, and he turned off from the car-
riage, and the last I saw of him he was pass-
ing toward the market house, and the carriage
drove off immediately. Bond, when he turned
and come back, where did he go to—
up into the court room? I think so.
Can't you speak with certainty about it?
No, sir; I can't. Can't you say whether he went
back in the court room ? I think he did; I am
not positive. I would like you to avoid the use
of the word "think"; you may say I can't speak
with certainty upon that point, but I don't want
you to give your opinions by thinking—you can't
say whether he went back or not? No, sir; I
can't. But yon have a decided impression that he
did go back? Yes, sir. Weil now, when Bond
was coming from the carriage to go back up the
steps, did you see him all the time ? No, sir.
There were moments when you could not see him ?
Yes, sir. You are certain you saw him from the
time he came down the steps till he left the car-
riag? Yes, sir. Did you see any one speak to
Bond from the time he left the court room and
come down stairs to the time he started back ?
Not that. I recollect of. Do you recollect that any
one did speak to him ? The ladies spoke to him
when he left them. Do you recollect that no male
person spoke to him ? Not that I recollect of.
Did you see any male person speak to him ? I
can't say sir. Well now; while the ladies were
at that carriage did Mr. Robert Mitchell go to say
anything to them ? I didn't see him. Did Mr.
Philliman Taylor go there to speak to him, or was
he there at the carriage at all ? I didn't see him
go at all. Your impression is that he was not ?
That is my impression. You swear positively.
If he went there I didn't see him. Did you see
Mr. John Maultsby go up there to speak to these
ladies ? No, sir. Did you see him speak to Mr.
Bond? No, sir. You don't think that Robert
Mitchell spoke to the ladies, nor Philliman Tay-
lor, nor John Maultsby ? If they did I didn't see
them. You dont think either one of these per-
sons spoke to Bond ? If they did I didn't see
them sir. You say you didn't know Tom Powers
that day ? No, sir. But you didn't see any per-
son but Bond speak to the young lady in the car-
riage, and therefore Tom Powers could not ? I
didn't see any one speak to the ladies except Mr.
Bond. Now,sir; while the ladies were getting into
the carriage your eyes and attention, were absorbed
by Capt. Tolar all the time ; did you loose sight of.
him at any time while these ladies were getting in-
to the carriage. I suppose I must, my attention
was directed to them. Is it possible that Capt.
Tolar may have left while you were standing look-
ing at the ladies ? Well, I don't think it is, sir.
But your attention was not on him all the time?
The ladies passed out very quickly, and drove off
very quickly, and he was there when I looked
around. It could not have been two minutes from
the time the ladies came down before they went
off, could it? It could not haye been more than
a minute. During that time your attention was
distracted from Captain Tolar ? Yes, sir. And
you can't say you had your eyes on him, but when
you looked back lie was there? Yes, sir. Did
you see any weapons then ? I did not, sir. Capt.
Tolar was not out of your immediate attention,
then, except when you were changing your posi-
tion from your first position to the second, and the
time the ladies were getting in the carriage? No,
sir, he was not. He occupied your attention then
from the time you got there until the time Arcby
came down stairs ? Yes, sir, he was in the crowd
He didn't go out of the market house ? No, sir.
Do you swear positively he was not stand'ng in
the middle of that pavement five minutes before
Archy came down stairs? Yes, sir. Do you say
he was not standing there for three minutes?
Yes, sir. For one minute? Yes, sir. You were
standing together when Archy started down
stairs? Yes, sir. Mr. Leggett, did you have a
pistol that day about your person ? No, sir. Did
you have any weapons about your person ? No,
sir, I didn't have a pocket knife. You had no
weapons of any description? None at all, sir. We
are approaching the point whea Arcby Beebeo
CONVENED AT RALEIGH, NORTH CAROLINA.
153
came down stairs and lost his life; did that crowd
curing that time grow any? Yes, sir, there was
more persons about the time the boy was shot.
In the ten minutes you were there the crowd had
gathered? Yes, sir. flow much? I think there
must have been seventy fire persons there. You
think that from thirty to thirty-five persons had
come up there within the ten niinutes ? Yes, sir.
That these persons came inside or stood outside of
the market house ? They were standing outside.
Did any of them come in ? Some might have come
in, but I didn't -pay any particular attention to
them. Then you saw the door open and Archy
come down stairs ? No, sir, I don't kuow about
the duor. You couldn't see that? No, sir. As
Archy came down stairs, were you facing east or
west, or south-east? I don't recollect, at that
time I think I was looking rather west. Your
back was rather towards the front of the entrance?
Yes, sir. Was Capt. Tolar fronting you ? Yes,
sir You were standing around in the same cir-
,pte, and you had your back towards the east, and
he had his back towards the west, and those
other gentlemen were right and left of you?
Yes, sir. When this negro came down stairs
the first yousaw of him he was pretty nearly
down ? About the bottom step, sir. Did you see
Sheriff Hardie before you saw the negro? Yes,
sir, Sheriff Hardy was in front. Did you see him
come out first and look around? No, sir, 1 did
not. Did you see him come down stairs first,
and beckon to those coming after him ? No,
sir. Didn't he do that? If he did I didn't see
him. Have you no impression about it? No,
sir. The first recollection you have of seeing
Hardie that you have,'he was in front of the ne-
gro as he came down stairs ? Yes, sir. Immedi-
ately in front? Yes, sir. And Wemyss was on
his right? Yes, sir, there were three or four oth-
er policemen. Mr. Faircloth was one of them,
the other two I don't that I know them. And
they were on one side or the other of Archy as
he came down the steps? Yes, sir. Did yon no-
tice whether Archy had on his hat or not ? I
don't recollect. Don't you recollect that he
had his hat on as he came down the steps ? I
am o f the impression that he had a hat on. Your
impression is that his head was covered? Yes,
sir. Did you notice how Mr. Wemyss had him
tied ? No, sir, I didn't While he was coming
down the steps, there was no noise you say ?
Nothing at all. No outcries ? No, sir. No
rushing ? No, sir. No suppressed hum of indig-
nation ! None in the world. No voice or dis-
turbance whatever; nothing that indicated a
mob? No, sir. Was the crowd perfectly still?
Not perfectly still; they were walking about and
persons were talking. You beard the ordinary
hum of conversation? Yes, sir. No rush?
No, sir. No eagerness to see the prisoner? No,
sir, none at all. They didn't gather and turn
their faces and move towards the prisoner, as he_
came down, as a crowd " sually does ? The first'
move I saw was made when he passed around the
end of the bench; there was of course some cu-
riosity, nothing more than that. How was that
manifested? The press on the outside to get up
on the side walk. That wras when the negro had
passed out of the arch ? Yes, sir, about the time
lie got to the corner. The first you noticed was
after he came to the foot of the steps and got
out of the arch ? Yes, sir, that brought the win-
dow right in my view. Do you mean the small
arch? Yes, sir. That brought the small
arch on your right? Yes, sir. And then you
faced about east ? Yes, sir. And as the priso'ner
came from the foot of the steps to the main arch
coming out, you noticed the crowd through
the s'mall arch ? Yes, sir, and the crowd was
pressing up towards the market house. Did
you see any man make a rush, or attempt to put
hands upon the prisoner before he got to the
entrance of the arch turning out? 1 did not,
sir. Were you in the house at that
time ? I was. How far were you from the south
corner of the main arch, as the negro turned
around, when he come out ? About six or seven
feet. Yon saw no rush? No, sir. You saw no
struggle of the policemen to hold the prisoner ?
No, sir. He had got outside on the pavement be-
fore you saw anything of that sort 1 That was
the first I saw. You didn't hear any one demand
the prisoner? No sir. You didn't hear any one
use any expression of that character? No, sir, I
didn't. You were standing inside of the market
house, I understood until the negro got out ?
Just about the time he passed the corner. Do
you mean by passing the corner that he passed
the main arch ? Yes, sir. You didn't move tin-
till he was in the main arch ? Yes, sir, we moved
on out about the center of the pavement. You
mpved about the center of the pavement ? Yes,
sir, Do you swear positively that before that
time you had noticed no individual make any de-
monstration of hostility towards this negro,
ArchyBebee? None in the world sir; I saw
n othin at all that indicated a mob unl il alter he got
out. Nothing that indicated individual hostility?
No, sir. It was like any other crowd and any
other prisoner being brought out except that
there was less curiosity manifested than usual
until Archy got out side on the brick pavement ?
No, sir, no less curiosity than I have seen in such
a crowd there, that was the largest crowd I had
ever seen in Fayetteville, during any occasion of
that sort before. But you say there was some
curiosity manifested? Yes, sir. But that curi-
osity was entirely on the ontside ? No, sir, there
was some under. Then the persons under the
market house did turn towards the prisoner?
They moved out on the pavement. Did they
move on simultaneously with yourself and Ed.
Powers, and Balph Lutterloh, and Capt. Tolar ?
Yes, sir. Did you see Sam. Hall, Henry Svkes
and John Maultsby in that movement ? No, sir,
I think they were going the other way. Why do
you think they were going the other way ? Be-
cause I didn't see them going out. You know
that you and Ed. Powers and Ralph Lutterloh
and Capt. Tolar moved out, and that crowd mov-
ed along Avith you, and that it was a simultaneous
move of curiosity, as you say? Yes, sir, a move-
ment of curiosity. Now, if I understand you,
Beebee was in the arch when the croAvd turned
before you started to move out ? He was just
about the corner. You were behihd him ? Yes,
sir. Were you immediately behind him ? No,
sir, we were off to his left. He had his back to-
wards you, and you wrere to his left ? Yes, sir.
Up to that time Capt. Tolar hadn't been on the
pavement ? Not that I know of. Then youAvent
out on the pavement ? Yes, sir. YouAvent into
the rush that was made on the prisoner, didn't
you? No, sir. Didn't you individually go out?
*We walked out there. There was some sort of a
rush made on the prisoner ? That was after Ave
walked out there. I am talking about before you
Avent out; the crowd moved on the prisoner ?
Some part of it, there was but one man that I
saw. You didn't see any of the crowd in a state
of agitation. Not until after the pistol was fired.
How long was it from the time that Archy Beebee
turned out of the arch to the time the pistol fired,
Avas it a minute? Yes, sir. Was it two? No,
sir. You don't, suppose it was two? No, sir.
And you say Captain Tolar didn't move out of
the arch until Archy had got out ? He moved
out about the same time. He had been out
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PROCEEDINGS OP A MILITARY COMMISSION,
two minutes before ho was shot ? No, sir.
I want to know, just after you got out side
with Capt. Tolar, Ed Powers and Ralph Lut-
terloh, whether you all stood perfectly still ?
I don't think we were perfectly still. Did you
face south or north ? South. Towards the
prisoner? Yes, sir. Then did'you stand still
or move about ? Stood still. You stood there
till the pistol was fired ? Yes, sir. And the
others did? Yes, sir. And you were in front
of Capt. Tolar, to his left ? Yes, sir. And
the others were a little to-his front? They
were to my right, a little to Capt. Tolaris front.
How tall are you ? I am six feet two inches.
How tall is Capt. Tolar ? I don't know, sir.
AVhat would you judge from his appearance?
Six feet, I should suppose. You are a taller
man than he ? Yes, sir. And you were stand-
ing by him, and a little to his front ? Yes, sir.
And you were standing still ? Yes, sir. Look-
ing on? Yes, sir. And you say these other
two gentlemen to his right and front were still ?
Yes, sir. How tall a man is Ed Powers? I
don't know, sir. You have seen him; is he
below the medium height, is he as tall as Capt.
Tolar? No, sir. How much shorter, is he a
very small man ? He is a man, I suppose,
weighing about a hundred and sixty pounds.
About his height ? I suppose he is about five
feet eight or ten inches; I could not say for
certain. He is not a small man ? No, sir.
How tall is Ralph Lutterloh ? He is about the
same sized man as Ed Powers. And you say
you are six feet two inches, and you say Capt.
Tolar is about six feet ? Yes, sir. And you
were standing, still in that crowd that day, in
the midst of the hottest excitement that there
was, and you saw no action but upon the part
of one man ? No, sir, I saw nothing that in-
dicated a mob. Did you see John Maultsby
after you got out side of the arch at all ? I
don't recollect that I did. Do you recollect
that you didn't ? I don't think I saw him.
Have you any impression about it ? I have no
impression of seeing him. Did you see Sam
Hall or Henry Sykes out on the pavement after
you got out there? No, sir. You have tried
to recollect in connection with these things
all that you can about it ? Yes, sir. After
Archy turned out of the arch and started down
that pavement, and you got to the position
where you could see, you are a tall man and
could see very well in the crowd ? Yes, sir.
Did any body demand the prisoner ? No, sir.
Did you see any man strike at him with a
knife ? I saw a man strike at him, but I didn't
see a knife. What sort of a man was he ?
He was a small mam Do you recognize the
prisoner. Monk Julia, as the man? I don't
recognize him. Was he a man about that size ?
About his size. Anything of that description ?
I could not say. You saw a small man, about
his size, striking at him with no knife ? If he
had a knife I didn't see it; he was striking
with his fist. That was just after Archy got
out of the market house ? No, sir, he had got
at least six feet towards the south east corner.
Now, between the time he was going that six
feet, did you see any assault made on him ? I
saw nothing except the crowd was up very
close, and the Sheriff was making them stand
back; that was all I Saw. What was the Sher-
iff saying ? I think, as well as I can recollect,
he told them to stand back. Did you see his
club? No, sir. Did you hear it strike? No,,
sir. Did you hear the noise of a knife strik-
ing out of any one's hands, and hear it fall on
the pavement ? No, sir. Didn't you see the
policemen trying to keep the crowd back with
their clubs, at the time the boy was shot ?
No, sir. You saw no struggle to keep the
crowd back until the time he was shot? No,
sir, only one, this man that I was telling you
about. He was striking at him? Yes, sir.
That was immediately before the shooting ? It
was a very few moments. Had the man stop-
ped striking at him when you heard the shot ?
Yes, sir, I didn't see him; I think some body
carried him off: Mr. Leggett, when did you
first perceive that the crowd was making an
assault upon the prisoner ? After he had got
out about six feet from the corner of the main
arch. Until that time you had no idea of an
assault ? None in the world. Had no reason
for thinking so ? No> sir. Had never heard it ?
No, sir. Had never formed any part in any
combination for the purpose of bringing him
to punishmont? No, sir. You swear it posi-
tively ? Positively. And until the instant be-
fore he was shot, you had no idea, from the
conduct of that crowd, that they intended to
assail him? No, sir", I had not. Did you see
Tom Powers there at all, that day ? If I did,
I didn't know him. Did you see any man you
recognized as the man they called Tom Pow-
ers ? I don't recollect that I did. Do you
know John Jackson? No, sir. Who was
standing nearest to you and Capt. Tolar, and
Ralph Lutterloh and Ed Powers, in that
crowd ? At what point, sir ? At the point
when you were standing in the middle of the
pavement, before the shooting took place. I
don't recollect. Do you recollect seeing any
one in the crowd at that time, that you knew ?
No, sir, Do you know Sam Phillips? Yes,
sir. Did you see him there ? No, sir. Don't
you recollect seeing any one in that crowd you
knew, besides the gentlemen you have named?
At present I do not. Up to that time you had,
seen no weapon in the possession of any one ?
I had not, sir. After this negro left the arch
which way was your face turned ? Turned
eastward. After the negro came out side of
the arch, and you took a stationary position in
the centre, of the pavement, which way did
you look, towards the prisoner? Yes, sir.
Were your eyes on Capt. Tolar, when they
• Were turned toward the negro ? No, sir, not
immediately. He was a little to your right
and rear? Yes, sir. Place me where Capt.
Tolar was, relatively, so that we can exactly
understand it.
(Witness places the Counsel to his right
about two feet, and to his rear about one foot,
as indicating the relative positions of Tolar
and himself.)
And your attention was directed to the pris-
oner Beebee, from the time he left the arch
until he was shot? Yes, sir. You say that
from the time the negro left the arch until
the time he was shot, you were looking towards
him ? Yesl sir. And the first assault you saw
CONVENED AT HALEK1H, NORTH CAROLINA.
155
was this small man attempting to strike with a
knife ? No, sir, I didn't see a knife. An attempt
to strike him ? Yes, sir. You saw no weapons
that day in the hands of any one ? I did not, sir.
Did you see the negro fall while you were looking
at him ? No, sir, I didn't see him fall they blun-
dered or stumbled, or something. Did you see
whether he fell down ? I don't think he fell en-
tirely down. You think he fell pretty nearly
down and was recovered by the officers ? Yes,
sir. And it was after that, that the shot was
fired ? Yes, sir. About that time was it that
this person struck at him ? Yes, sir. When was
the shot fired ? He had took about one step after
that in front—it might have been two steps. You
say you had no weapon there that day ? No, sir,
no weapon at all sir. Where was the man stan-
ding who fired that shot ? He was standing to
my left and front. Yeu were standing then a lit-
tie to the south of the center of the main arch,-in
the middle of the pavement? Yes, sir. Your
face towards the south, and this man was to your
left and front ? Yes, sir. Can you take this di-
agram and indicate to me the position you think
that man occupied who fired that pistol—I want
to know where a line drawn from him directly
east and west, would have hit the market house,
how far from the corner ? Very near the corner.
A foot? Not more than that. You think he
was how far from the edge of the pavement?
About five feet. Where did you see the smoke ?
About three feet from the prisoner. You say as
I understand you now, after the prisoner came out
of the arch, he moved two or three steps before
anything was done ? Yes, sir. Then about that
time you saw him blunder, and this effort made
to strike him by some one ? Yes, sir. That he
took one or two steps after that ? One or more.
One or more might embrace a hundred. I can't
say sir, there was such a crowd. It was not in-
stantly after he rose ? No, sir. You think he
took a step or two or three ? It might have been
I am not positive about that. Still going towards
the guard house ? The police and .Sheriff were
still pressing on twards the guard house. And he
moved one or two or three steps after that ? He
moved near the corner. And then he was shot ?
Yes, sir. And the man who shot the pistol stood
out about five feet from the edge of the pavement?
It must have been about five feet sir. And a line
drawn twelve inches from the corner of the mar-
ket house or the east face, directly east and west
would have struck the man who fired the pistol ?
Yes, sir. Was Archy on the pavement or off the
pavement, when the pistol was fired ? He fell on
the pavement. Didn't I understand you to say
you thought the man was -about three feet from
him, who shot? Where I saw the smoke was
about three feet. And y©u think the man must
have been about five feet ? Yes, sir. Did you
see Archy after he was shot ? Yes, sir. Was he
shot in the'back of the head sir? I never saw
the wound, I saw him about ten minutes after he
was shot. You didn't see where the wound was ?
No, sir, Major Burns and myself went there and
stood a very short time and passed off. When
that pistol was fired Archy's back was towards the
man who fired it? I can't say. You think he
was going toward the guard house ? Yes, sir.
And the person who fired it was in the position
you described, but you can't say whether his back
was towards the man 'who fired? No, sir, I can-
not. Immediately after this affair, or before this
affair, you heard nobody in the crowd cry out kill
him? No, sir. You heard no body cry out
" shoot him, shoot him"? No, sir. You heard
neither of those? No, sir. No, curses? Yes,
sir, this man who was striking was cursing.
What was he saying? He was using profane
words, but I don't recollect his expression. He
was the only man you saw make any attempt at
that time ? Yes, sir. Did you see Capt. Tolar
after the pistol fired ? Yes, sir. Immediately ?
Yes, sir. You didn't see him when the pistol was
fired ? No, sir. Your eyes were towards the boy
Beebee ? Yes, sir. But immediately afterwards
you turned and looked at him? At the time the
pistol fired I turned around, and made a remark.
And Capt. Tolar was standing there then ? Yes,
sir. How long did you stay ? I moved off im-
mediately. You just turned and said "did you
ever hear anything like that," and turned right
off? Yes, sir. Butyou are confident Capt. Tolar
was there ? I know he was. You saw him ? I
saw him. You saw him when you turned ? Yes,
sir. It was an instantaneous turning but you
know that he was standing there, and the pistol
was not fired from behind you ? I know it was
not. Didn't you feel a curiosity to find out who
it was who fired the pistol? I wanted to get
away from there. Why ? Because I was afraid
there was to be other shots, I didn't know who
was shot, at the time I thought Mr. Wemyss was
shot, he fell with Archy. Did any body in the
crowd attempt to arrest the man who shot the pis-
tol? No, sir. Didn't you turn your glance in
that direction, where the pistol shot came from,
and see who fired the pistol ? I turned my eyes
in that direction. Your glance was attracted by
the shot? Yes, sir. Were you not more curious
to see who fired the shot, than you were to see
where the smoke was ? No, sir, I was more anx-
iouf to get away than anything else. You left
hurriedly ? Yes, sir. You had but a momentary
glance around, and then went away. Yes, sir,
I turned around and said " did you ever see any-
thing like that" and went off. You wanted to
get out of the crowd? Yes, sir. You made this
momentary speech and then moved off ? Yes,
sir. And you went directly by Ichabod B. Davi's
store? Yes,, sir. You went and got Mr. Burns,
and you saw Mr. Davis standing on his corner ?
I went to Mr. Burns. Didn't he come back with
you ? Yes, sir, he asked me if I would not go
back, I refused once, and he insisted, and we went
back together. And you saw. Mr. Davis on
the corner, when you went back? Yes, sir.
How many -stores did you pass going down
to Major Burns ? " I think there were three or
four. Who else was out of their stores stand-
ing on the street ? I don't recollect seeing any
one, except Mr. Cook, and there was some
one with Mr. Davis, I dorf\t recollect who. Some
one with Mr. Davis? Yes, sir, a man standing
talking to him. Can't you say who it was ? I
don't recollect. Who else did you see besides
Mr. Davis passing along the street ? I don't re-
collect who else beside Mr. Davis, when we came
back he was alone. Who else did you see in your
walk? I didn't notice apyone'in particular.
How came you to notice him? He was standing
15a
PROCEEDINGS OF A MILITARY COMMISSION,
on the corner, and being well acquainted with
him I noticed him, I don't think there was any-
body else there. There was a pistol fired in the
most public part of town, in front of three or
four stores, and there was but one man standing
out in the street? I don't recollect but him.
How often have you compared notes with Mr.
Davis upon that point. We never have compared
at all. Didn't yon compare notes with him last
night? No, sir. Didn't you stand upon the
corner of this street, in the City of Raleigh, in the
presence of one of this Court, and have a conver-
'sation with him about this testimony 1 1 might
have conversed with him, but not comparing
notes. Did you not know that Mr. Davis was
going to swear that he was standing right at the
corner, before his own store? Yes, sir. How
long have you known it ? I have known it three
weeks, I reckon. Didn't you know he was going
to swear that you passed him while he was stand-
ing on that corner? No, sir. Didn't you know
that he was going to swear that you passed back
by him when he was standing on that corner ?
I think I did. You knew he was going to swear
to that before he came here ? Yes, sir. And you
recollect that one single man, and no other, that
you passed along the whole of that passage, be-
fore three or four stores, in an excited time ? He
was the only man that I noticed in passing by.
Now pray, sir, what was the character of your
conversation with Mr. Davis with regard to his
testimony? I don't recollect, sir. You were
conversing about it ? I don't know, sir, that
there was any particular conversation on any par-
ticular point. Didn't he tell you what he had
sworn to. I don't know but he did. Didn't he
tell you a good part of what he had sworn. The
most he told me was about the man he had hung
up by the thumbs. He spoke of making some
correction in his testimony on that point. Didn't
he speak to you of any other part of his testi-
mony ? Yes, sir, about his location; I think that
is about all. And you knew that before ? I knew
his position. He had told you he swore that you
saw him there, that you passed by him while he
was there? He told me, I think, he swore
that I passed by him coming down. He
told you that last night? Yes, sir. Now I
wish you would trv and recollect some One else
that you passed? I don't recollect; there is no
doubt I passed others. Did you have any conver*
sation with him then? I- think I had, when I
went up. Which do you call up ? When I went
up there to the market house with Mr. Burns, we
had no conversation when I went down, except I
think I told him there was some one killed. You
had no further words? We might have had
other conversation, I don't recoiled. How long
was it before you got back to the market house ?
Five minutes, perhaps, I don't recollect the time.
You saw no weapons there that day? None at
all. And you saw no excitement except t,he im-
mediate attack ? I saw but one pistol that day.
I understood you to say you had seen no pistol?
I said I didn't see a pistol in that crowd. Major
Burns bad one lying on his desk. Did he take it
off or put it on? It was lying there. Right be-
lore him? No, sir. When you left the crowd to
go down to Major Burn s,. did he go along with
vou from the crowd ? No, sir, he was not there at
all. You found him at his store when you went
in? Yes, sir. Where was his pistol? It was ly-
ing on the desk. Was he sitting behind the desk ?
No, sir, he was behind the counter. Did you ex-
amine the pistol ? No, sir. What became of it?
I don't know, sir. Do you know who put it there?
I think Major Burns put it in his pocket when he
went out. I talked more to him about the matter
than any one else; we didu't stay but a very few
moigents where the boy was dead. You were per-
fectly sober that day, Mr. Leggett? Yes, sir.
You are not in the habit of getting on a spree?
No, sir. You know exactly what happeped ? Yes,
sir. If you are not mistaken, it was not on ac-
count of being confused by liquor ? No, sir, I am
not mistaken. You were perfectly yourself that
day? I was, sir. Can you name any other per-
son who was in that crowd at any time that day,
besides these you have named ? I don't recollect
that I can, I saw but verv few colored persons
there, I don't know that I can name any other
person that I could call to mind just now. I un-
derstand when you first got there you found To-
lar, and Ralph Lutterloh, and Ed. Powers with
him? Yes, sir. They didn't go there with you?
No, sir. You were with that group until you
left ? Yes, sir, it was about ten minutes I think I
was in the group. You never saw John Maultsby,
nor Henry Sykes, nor Sam Hall, after the first
few moments, after you entered, when thev were
standing near the center of the market ? No, sir,
I never saw them any more that I can recollect of.
You swear that you know of no combination, ar-
rangement or agreement, of any sort, between any
set of men to take off this negro ? None in the
world. I understand you to say you heard no out-
cry in that crowd that day at all, such as "kill
him, sho<>t him." I did not hear anything of the
sort at all. You didn't hear any cries at all, any
excited cries, in any form, either from the police
in resisting the press, or the crowd in pressing on
him ? Nothing more than the police keeping- the
crowd back. What did they say? They were
just crying out, "stand back," and "get out of
the way." Were the crowd crying out at all
then? No, sir, I heard no cry. "You were right
in the crowd, if there had been any cry, you
would have heard it? Yes, sir. You are not
deaf? hi o, sir. Did you ever hear Mr. Davis was
a little deaf in his left ear ? No, sir. How long
have you known him ? About four months. You
never heard him complaining of deafness ? No,
sir.
Re-direet examination by the Counsel for the
accused.
Mr. Leggett, you were examined about this mat-
ter before the coroner's iiiq uest, the day after the
killing of Archy Beebee? Yes, sir. Wasthetes-
timony which you gave there with reference
to your knowledge about the shooting, in sub-
stance the same that you have given here to-day ?
The Counsel for the prosecution objected to
the question.
The Counsel for the accused said he did not
care to press it.
Re-direct examination resumed:
You have been been asked the question whetk-
er you have not compared notes with Mr. Ieha-
hod Davis about this matter, and I understood
you to reply that you have talked over the matter
with Mi*. Davis. Yes, sir. Has any talk that you
have had with Mr. Davis on this subject, changed
or influenced your testimony in any degree?
None at all, sir. How long a time do yon think
elapsed from your first moving out to the pave-
ment to the shooting of the boy Archy? Not
more than two minutes. How long a time do you
think it was, from the time when he was brought
down and reached the market house floor, until
he was shot? As near as I could come to it, five
minutes, I had no watch. You speak of this mat-
ter, dividing it off in distinct periods, do you
mean to say the whole thing occurred as fast as
the police carried him on, that it occurred almost
as fast as a person could walk ? That is about
the way they moved. How long had you been
acquainted with Capt. Tolar before this matter
occurred ? I can't say, sir, but a short time.
CON VENICE AX RALEIGH, NORTH CAROLINA.
157.
What was the nature of your acquaintance with
him, were you intimately acquainted ? No, sir.
Cross-examination resumed by the Counsel for
the prosecution:
Are you a Mason ? No, sir, I am not.
Re-direct examination resumed, by the Coun-
sel for the accused:
It was then a mere passing acquaintance ? Yes,
sir. Was your acquaintance in the town of Fay-
ctteville at all extensive, at that time? No, sir.
You speak of having known or having seen par-
ticularly the young men, Sam Hall, Ed. Powers,
Ralph Lutterioh, Maultsby, &c., had you known
them long ? I had known Maultsby perhaps Ion-
ger than any of the rest, he had been hauling
rosin for me. Was there any reason why you
know those others better than the generality of
the citizens of the town of Fayetteville ? Yes,
sir. What are those reasons ? Mr. Powers was
about the second man I got acquainted with, be-
ing a merchant, not a great ways from my still.
.Lutterioh was the same. Living right in the vi-
cinity of Powers? Yes, sir. And Sam Hall?
He lived in the immediate vicinity. How far do
they live from your still? About two hundred
yards. In coming from 3*0ur still up Hay street,
you have to pass the corner of the place where
young men resort? Yes, sir. So yoa got ac-
quainted with them earlier than you'did any one
else, in the town of Fayetteville? Yes, sir.
For that reason your attention was attracted to
them more particularly ? Yes, sir.
On motion the Commission adjourned to meet
on Monday, Angustl9th, at 11 A. M.
Raleigh, N. C., Aug. 19th, 1867, 11 A. M.
The Commission met pursuant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
The testimony of Mr. .J. G. Leggett, taken on
Saturday the 17th instant, was read.
On page 154, 1st column, the following ques-
tion and answer were omitted, by the recorder.
Was he striking with his fist, by a blow straight
from the shoulder, or by a downward blow ? By
a downward blow.
The proceedings of Saturday having been read,
with the above addition, were then approved.
Mr. Phillips, one of the Counsel for the accused
said :
" May it please the Court; before we proceed,
we wish to make fi statement to the Court, and
receive such information as may be proper that
we should receive, with regard to the matter,
that took place here upon Saturday. At the close
of the.examination of witness, Leggett, we un-
derstand that he was arrested, and has since been
held in close custody.
Now, professionally, we have no interest in
what questions there maybe, between the United
States and Mr. Leggett, as an individual; what
breach of the law he may have committed, or
may be charged with committing, is a matter, I
say, in which, professionally, we are not interest-
ed; but we are interested in his character as a
witness, in the effect that the treatment of one
of the witnesses for the defence may have, upon
the others, still to be summoned for the defence.
That a witness for the defence, upon closing his
testimony; should be arrested and placed in ens-
tod}', is of course well calculated to intimidate
the other witnesses for the defence. I feci assnr-
ed that the United States desires that the priso-
ners here,- shall have the benefit of the same sort
of trials that they would have in any court in the
country; and more than that, if I may be per-
mitted to say so, I feel fully satisfied, by the,
personal constitution of this court, that they are
personally desirous that these prisoners—what
ever their judgement maybe, upon them, when
the case has been made out, shall have a fair trial,
a trial with which the community at large may
be satisfied. I say that under these impressions
we wish to be assured, or wish to have some as-
surance conveyed that may effect, or remove
rather, the effect already produced upon our wit-
nesses, by the manner in which this gentleman
has been treated. We wish to know why he has
been arrested, if it be compatible with the public
interest, and that he has not been arrested for any
purpose of weakening the cause of thq defence of
the prisoners here upon trial."
The Judge Advocate said:
" On behalf of the Court: I wish to say, re-
garding the arrest of Mr. Leggett, that it is a
matter with which the court has no concern what-
ever. Mr. Leggett was arrested upon an order
from General Sickles, issued sometime since, and
held in my hands simply to allow M1'. Leggett to*
give in his testimony before he was arrested."
Mr. Phillips:
" It has this peculiarity about it. We had oth-
er witnesses under subpoena here who were arres-
ted ; the order cme for their arrest, and was car-
ried out before they were placed upon the witness
stand. The manner in which Mr. Powers and
Lutterioh, and others were arrested, has not affec-
ted our testimony at all. and we did not question
the transaction at all. Leggett, it seems, was or-
dered to be arrested at the same time. If he had
been arrested then, wa would have had no cause
of complaint. But certainly if Powers and Lutter-
loh and the others had not been arrested, and -if
each one of them, as he c osed his testimony, had
been arrested, what would have been the effect
upon the rest of the witnesses, that were coming
upon the defence. It is the manner which has pro-
duced an injury to the defence, which an expla-
nation may be able to retrieve."
The Judge Advocate:
" The gentleman has assumed what, he will par-
don me for saying, he does not really know—that
the order for the arrest of Mr. Leggett was issued
at the same time the order was given for the ar-
rest of Powers and Lutterioh. I don't know that
it behooves either the counsel for the prisoners, or
the Judge Advocate, or this Court, to censure
General Sickles for what he may choose to do in
this matter. I stated it was a matter with which
the Court had nothing to do, and I reiterate that
statement."
The Counsel for the prosecution remarked:
" Ijay it please the Court, I think it is neces-
sary to make a few remarks upon this matter, be-
cause I believe that I am more responsible than
any one else, for the fact of Mr. Leggett's arrest,
shortly after his testimony was taken. At the
commencement of this case, I found that several
witnesses, summoned by the defence, were, in our
opinion, implicated in the felony, alleged in the
charge; and suggested to the Judge Advocate that
as some of them were arrested, it would perhaps
be well not to arrest Mr. Leggett, until after his
testimony was given. The object of the suggestion
is evident; and it was to avoid even the appear-
ance of terrifying or intimidating the witnesses.
But I must say—and in this assertion I am sure
my brethren of the bar, who appear for the de-
fence, will sustain me,—that it is not unusual even
in a civil court, where a judge becomes satisfied
that a witness on the stand has perjured himself,
for him to order from the bench the immediate ar-
rest of that witness, and there is no judge in this
State, nor out of this State, who would hesitate
for a single moment, to order the immediate ar-
rest of a witness, if he became convinced, upon,
138
rnoCEKMXGS OF A MILITARY COMMISSION,
such witness giving; in his testimony, that he was
himself implicated in the felony, then on trial.
This, however, was not the case with Mr. Leg-
gett, for in reality his arrest had been ordered
long before he was summoned as a witness, and
had nothing to do with his evidence."
The Counsel for the accused :
•' With regard to witnesses being arrested in
civil courts. I think my brother Hay wood will not
say that he ever knew of a case in which a judge
ordered the arrest of a man from the bench, while
the jury was present trying a case. Judge Cald-
well, one of our most eminent criminal judges, was
so sensitive of the effect thai any action of that
sort would have upon the jury, that when he saw,
as he thought, a case of notorious perjury befoie
him, he whispered to the officer of the court, and
told him to carry the witness, after he had left the
stand, out into one of the jury rooms, and await
the conclusion of the trial, in such a manner as it
would not be seen by the jury. It is to the detri-
ment, and it seems to me to the desparagement of
all judgment, to arrest a man in the face of a
jurv."
The Commission was cleared for deliberation,
and after some time so spent the doors were re-
opened, and the Judge Advocate said:
" I am desired by the Court to state that the
witness, Jordan G. Legget, was, arrested by an
order from Gen. Sickles, for complicity in the
murder of Archy Beebee, on the eleventh day of
February, one thousand eight hundred and sixty-
seven. ThattheCourtknewnothingofhis arrest
till it had taken place; that the Court knows
nothing of any contemplated arrest of any other
party in connection with this affair."
Mr. Tolar, one of the defendants, stepped for-
ward and swore to the following affidavit, to-wit:
Military Commission,
Raleigh, iV". Aug. 19, '67.
STATE OF NORTH CAROLINA, )
County <Jf Wake. ) v
United States 1
VS. I
William J. Tolar,
Thomas Powers,
David Watkins. j
William J Tolar makes oath that he is advised
and believes that Dr. — Kirk, Surgeon of the
Post of Fayetteville, North-Carolina, and Francis
Kunstler, First Sergeant of Co. K 8 N. Y. Infant-
ry, on duty at said Fayetteville, are material
witnesses for him in this case.
That he expects to prove by said Dr. Kirk that
in obedience to an order of his military superior
he, (said Kirk,) about the — -day of August,
A. D., 1867, exhumed the body of Archy Beebee,
alias Archy Warden, and upon examination of
said body, extracted from the skull one certain
leaden bullet, which said leaden bullet he (said
Kirk) delivered to Francis Kunstler, first sergeant
as aforesaid, and that he expects to prove by
Francis Kunstler, first sergeant as aforesaid, that
the said leaden bullet delivered to him a afore-
said, was brought by him, said Francis Kunstler,
from Fayetteville aforesaid, and was by him,
Francis Kunstler, said first sergeant, given into
the hands of Robert Avery, 1st Lieut. 44th U. S.
Infantry, the Judge Advocate of this Military
Commission.
Sworn to and subscribed, this 19 th day of Aug.,
A. D., 1867, before Robert Avery, 1st Lieut. 44th
U. S. Infantry, and Judge Advocate Military
Commission.
(Signed:) W. J. TOLAR.
The Counsel for the accused:
"On that we ask the Court to order that the
witnesses therein named, Surgeon Kirk, and first
sergeant Kunstler, be summoned by the Judge
Advocate."
The Court ordered the witnesses to be sum-
moned.
Mrs. Lucy J. Davis, a witness for the defence,
having been first duly sworn, testified as follows:
Examined by the Counsel for the accused.
AVhat is your name ? Lucy J. Davis. What is
the name of your nusband? Dr. James Davis.
Where do you reside ? In Fayetteville. How
long have you resided in Fayetteville? About
eight years. Were you in Fayetteville on the day
Archy Beebee, or Archy Warden, was killed?
Yes, sir. At the time Archy Beebee was killed
where were you ? At that window, ton the dia-
gram the east window of the store marked " the
store of R. O. and J. H. Ellis," facing north.)
From that point did you see any thing of Archy
Beebee? Yes, sir. Where was he at the time
you first saw him/ He was on the pavement,
and about opposite the center of the southern
arch, upon the east side. Did you see him at the
time he was shot? Yes, sir. Where were
you then? I was right at that window, (as
above.) Was that window raised?
Yes, sir. Were you looking out of it or
leaning out? I was looking out of it. • Your
body was on the inside and you were looking
out of it ? Yes, sir. What do you take to be
the distance from that window to the point
where you saw Archy Beebee when he was
shot ? I should think it was a hundred feet.
Did you have a distinct view of him? Yes,
sir, I saw him plainly; I saw his features and
all; I never saw him before. Did you know
him at that time? No, sir. Who was he in
the custody of ? Mr. Hardie had him. Is
your acquaintance very extensive in Fayette-
ville? Tolerably so. You then saw where he
was standing at the time he was shot? Yes,
sir. Point out his position at the very moment
he was shot ? As near as I could judge, about
there. (About opposite the centre of the south
east corner of the market house.) Was he on
the pavement or off ? He was on the pave-
ment. Was he nearer to the market house
wall, nearer the centre, or nearer the edge of
the pavement ? Nearer the edge, I should
think. Did you see who shot him ? No, sir,
I didn't see who shot him; I didn't know the
one who shot him Did you see the man who
shot him? No, sir, I saw the smoke of the
pistol. Where did the smoke arise, from what
point? About there, (a point off the pave-
ment about three feet, and to the left and a
little to the rear of Beebee.) Was the smoke
rather behind or rather in front of Beebee ? A
little to one side. A little to the left ? Yes,
sir. • You say you didn't see the person who
shot the pistol ? No, sir. But you saw the
smoke and it arose from that point ? Yes, sir.
Did you know Capt. Tolar at that time ? Yes,
sir. Where was he standing ? About ten feet
back from Beebee. On the pavement or off?
On the pavement. Nearer to the centre than
the out side? Yes, sir. So Capt. Tolar at
that time was standing back upon the pave-
ment, about ten feet from Beebee, and nearer
the centre of the pavement than the outer
edge of the pavement ? Yes, sir. Have you
any doubt about that ma'am ? No, sir. You
were not in that crowd at all ? No, sir,
Were you excited that day ? No, sir. You
CONVENED AT 'RALEIGH, NORTH CAROLINA-
133
were looking down upon tlie crowd? Yes, sir.
And that Tolar was'at the point you have
stated? Yes, sir. You knew him well? Yes,
sir. Is there any possibility about your being
mistaken about his position ? No, sir, there
is no possibility. I think I understood you to
say you had known Tolar before that day ?
Yes, sir. How long before had you known
him ? I saw him once about two years ago.
And you knew him then? Yes, sir. Was
there any acquaitance existing between yourself
and Capt. .Tolar ? None at all. Between your
husband and Capt. Tolar? None at all.
A mere passing acquaintance ? Yes, sir.
Cross-examination by the Counsel for the pros-
ecution:
Mrs. Davis, do you remember what hour of the
day it was that Archy Becbee was killed ? I
I should think about three o'clock as near as I
can recollect. How long had you been standing
at the window belore he was killed ? I put up
the window when I heard the noise. I was sit-
ting at the large window, I had been at the large
window I reckon fifteen minutes. That is fur-
tker from the market house than the small one?
No, sir, it is nearer than the small one. You had
been sitting at the large window about fifteen
minutes? res, sir. And you went to the small
window and raised it, when you heard a noise ?
Yes, sir. While you were sitting at this large
window, what attracted your attention first to
sit there for fifteen minutes ? I had been in the
room, and my husband wanted to go down stairs,
and he asked me to stay there until he came back,
and I was sitting at the window and I saw the
carriage with Miss IVIassey and another lady in it,
and I told him not to go down for they were com-
ing to have some teeth extracted ; and he said no,
"that is that girl," and I said "do tell me all
about it." ' Don't tell me the conversation,
you were sitting there for fifteen minutes? Yes,
sir. During the time you were sitting at that
window the carriage came up, and Miss Massey
and her mother got out ? No, sir, they were go-
ing away. You saw them when they got into the
carriage ? No, sir, I saw them when they passed
the window. You saw the carriage as it went off.
Yes, sir. How long do you think it was, be-
tween the time that carriage went -off and the
time Archy was killed?' Five or ten minutes, 1
don't think it was longer than that. Did you go
to the small window immediately after the carri-
age went? I went as soon as I heard some one
hallowing. How long was that after the carriage
passed by? Very soon alter, four or five minutes
I guess. What was the exclamation you heard ?
The first I heard was "stop the nigger, he will
get away," was the first I heard. Did you hear
any other exclamation ? I heard some one liol-
ler "shoot him !" as near as I can recollect. Did
you hear that several times? I heard it twice,
"Shoot him, shoot him?" Yes, sir. Did you
hear any other exclamation ? No other. When
you got to that little window was the crowd in
a good deal of commotion? No, sir, not a great
deal. How many prsons do you thihk there
were Mrs. Davis ? I reckon about seventy-five
or a hundred in all. I understand you to say
you did not see Mrs. Massey and her daughter
"when they got into the carriage? No, sir. Were
you looking at that time? No, sir, I didn't
know anything about it then, I was sewing.—
What was the first thing that attracted your at-
tention to Capt. Tolar? I wanted to sse who it
was, and who it was about. Did you see Capt.
Tolar before you saw the pistol shot ? I saw
him just about the time; You didn't see him
then, before ? I saw him a little before, just as
I put the window up, I saw Captain Tolar and
one or two others. Did the pistol fire imme-
diately after you saw Captain Tolar? Yes, sir.
You say [you were not alarmed? No, sir, I don't
think I was alarmed. You were cool and self-pos-
sessed? Yes,sir. Did you close the window im-
mediately afterthe_firing of the pistol? I stood
there some few minutes. Did you see what be-
came of Capt. Tolar after the pistol fireclf I
didn'tpayany more attention to him after that.
Do you remember how he was dressed? I
think he had on a gray suit. Do you remember
whether he had on a gray shawl? Yes, sir, ho
had on a shawl thrown carelessly around him.
And you saw him distinctly enough to see liis
features? Yes, sir. Could you see whether he
had his spetacles on ? I dont recollect. Did you
notice whether he had on a hat? I think he had
on a black hat. Tall crowned, low crowned hat
or a crushed hat ? It was not a very low one.
Do you remember it with accuracy at all ? I
don't recollect very much about his hat. And
you can't say with certainty to bis spectacles ?
No sir Where was he standing when you saw
him ? In the center of the pavement about. Was
he standing opposite the small arch, or opposite
the large arch, or opposite the pillar between the
two arches ? Opposite the main arch I believe.
You think he was standing about opposite the
main arch ? I think he was. About opposite the
center of it, or can't you speak with that degree
of particularity about it? - I think he was about
the main arch. The arch is somewhere about
twelve feet in width; I want to know what point
of the arch he was opposite ? I didn't pay much
attention. You say he was about ten feet in the
rear of Beebee, or where Beebee was when lie
was shot? Yes, sir, about ten feet, Will you
just point out some object with in reach of you,
that you estimate at ten feet now
n (Points out two objects as being ten feet apart,
which measures thirteen feet.)
Do you think it was about that distance they
were apart ? Yes, sir. You say you lost sight of
Capt. Tolar immediately afterwards and didn't
see what became of him ? No, sir, I didn't see
what became of him. You have been living in
Fayettevillo eight years, did you recognize any
one in that crowd that you saw standing near
Capt. Tolar. I recognized Mr. Maultsby, and
Mr, Sykes was in the crowd—I recognized him.
Was he standing near Capt. Tolar? Not very
near—some three or four feet from him, Was he
to the right or left ? He was nearer to Beebee I
think as near as I can recollect. How near was
he to Beebee ? I don't recollect how near Syke3
was, but I recollect seeing him there, and I think
he was nearer to Beebee than Tolar was. Where
did you see Maultsby. I saw him standing in the
crowd. Was he near Capt. Tolar ? Some three
or four feet from him. Do you know Mr. Leg-
get? Yes, sir. Did you see him ? Yes, sir.
Was he standing near Capt. Tolar? About three
feet. In front or behind him ? On the side of
him, I believe. Exactly on the side? I can't
tell exactly. Which was the nearest to you ? I
believe Capt. Tolar was the nearest to me. You
think Leggett was a little to his rear then? Yes,
sir. Did you see Ilalph Lutterloh? No, sir.
You know him? Yes sir. Dick you see Ed. P.
Powers; do you know him? No, sir. I don't
know him. Was Capt. Tolar in the midst of the
crowd or on the outside edge of it ? He was rath-
on the edge of the crowd, Were there any per-
sons behind him besides Mr. Leggett, further to
the rear still? There might have been, I didn't
notice. You think he was on the outside edge of
crowd ? Yes, sir, I think there was not a great
160
PROCEEDINGS OF A MILITARY COMMISSION,
many around there. Did you see any colored
men standing around there, near Capt. Tolar, at
that time ? I saw some negroes there, but I did
not notice who they were. Do you recollect
they were near him? I don't recollect. When
Archy Beebee was shot say you saw the smoke
come from the pistol? Yes, sir. You didn't
see the person who shot him ? No, sir. Have
you ever expressed any opinion that you
could describe the person who shot him? I
I don't think I could. And would not know him
if you were to see him? I might possibly. Could
you describe what sort of a man he was. No, sir,
I had an idea he was rather a little man, but I
don't know whether it is correct or not. You saw
the smoke and flash from the pistol distinctly?
Yes, sir. Did you see Beebee fall? Yes, sir.
"What was the first tiling that drew your eyes
from Tolar? A pistol. The flash of the pistol?
The smoke of the pistol. You heard it distinctly?
Yes, sir. You think Beebee was oh the pavement
about opp-'site the south east corner of the market
house? Yes, sir, Beebee was on the pavement.
Near the edge/ Yes, sir. Had he passed the lit-
tie arch of the market house on the east end ? I
think he bad. He was further south than that ?
Yes, sir. I think he was. And near the edge of
the pavement? That is the point I think. This
man who shot, the place where you saw the smoke,
you think was east of him ? Yes, sir. Do you
mean directly east; suppose Beebee to have been
facing south, was this man directly on his left, or
south of his left, or to the north of his left? He
was to the south of his left. A little further
around than he was? Yes, sir. You think the
smoke then came a little further in front of Archy?
A little to his left side. Which way wa3 he fa-
cing? He was facing south down towards the
guard house With his face down towards the
guardhouse? Y es, sir. You could see his fear
tures? Yts, sir. And this mart you think was a
little to the letf and front of liim? Yes, sir.
Whoever fired that pistol the smoke appeared
there ? Yes, sir. Was there not a wind blowing
that day? I don't recollect. Do you recollect
whether it was a clear day or bright one ? I think
it was a bright day. You don't recollect whether
it was a windy day ? I don't think it was a win-
dy day. Did vou hear any exclamation in the
crowd immediately after the shooting; any out-
cry? No, sir, I heard nothing after that? Did you
leave the window ? I did leave the window'for
about five/ minutes, and I went back and stood
there I reckon an hour. Did you have the win-
dow open all the while ? Yes, sir, never closed it.
Was the day cold ? No, sir, it was not very cold ;
I had the window up all the day. The window
was not up till you raised it ? No, sir. It was too
cold to have the windows open ? No, sir, it was
not open till I rr.i-ed it. When did you first make
your statement of this matter, Mrs. Davis ? 1
said someihing about it the next morning to a ne
gro woman that I had. I don't ask you what it
was; so that was the first time you bad 'ever spo-
ken of it? Yes, sir. When was the next? The
next time was about six weeks afterwards. Who
was that to.? It was to a colored womaD. When
did you first give in your statement to the Coun-
sel in this case, Mr. Fuller, in connection with
this business? I didn't think I would have to tell
I was summoned* here. Havn't you ever giv-
en it to him before coming on the stand ? Yes,
sir. Was that since you have been here ? Yes,
sir. The first time you ever gave him a narrative
of this transaction ? Yes, sir. Yon say you knew
Capt. Tolar very well? Yes, sir. Known him
how long? About two years. Was he a frequent
visitor at your boust ? No, sir, he never visited
at our house at all. How many times do you suppose
you had seen him iu these two years ? He came to
our house first on business, and I saw him on the
streets a good deal from the window; I never spoke
to him. And it was not a personal acquantance
then at all? No, sir. You only know him by
sight? Yes, sir. Do you suppose you liad seen
liim a dozen times in these two years ? Yes, sir.
Fifty ? No, sir. You have seen liim passing the
street ? Yes, sir, I had seen him a good deal at
Mr. Taylor's store, across the way.
Re-direct examination by the Counsel for the
accused:
Mrs. Davis, do you know whether Capt. Tolar
had done business down the street, below your
husband's office ? I don't know, sir. He was
passing there quite often ? He was at the corner
of Philliman's Taylor's store, right often. That
is on the corner just opposite? Yes, sir. By
seeing him in that way your knowledge of him
was gained? Yes, sir. With regard to the posi-
tion " from which the smoke arose; you say it
was about to the left of Beebee? Yes, sir.
Did you say it was to the front of his left
or just to his left? Just to his left, I think.
G. W. Hollingsworth, a witness for the de-
fence, having been first'duly sworn, testified as
follows:
Examined by the Counsel for the accused.
What is your name ? G. W. Hollingsworth.
What does G. stand for ? George. So that your
name is George Washington Hollingsworth ?
Yes, sir. What is your age ? Seventeen. What
is your father's name? Isaac. How long have
you been living in Fayetteville ? Seven "years.
Where is your lathers place of business ? On
Person street, No. 51. Below the market house ?
Yes, sir. How far from the market house ? About
one hundred and twenty-six yards. From the
nearest portion of the market house to your fath-
er's place of business? Yes, sir. Have you
measured it? It was stepped off, one hundred
and twenty-six steps. Were you in Fayetteville
on the day that Archy Beebee was killed ? Yes,
sir. At the time 1 he was kliled where were
you ? I was at the store ? What store ? My
father's store. How long had you been
there before he was killed ? I had been there
about ten minutes. Where had you been be-
tore that time? I had been hunting. Had
you been up to the market house that day?
No, sir, I hadn't. How long after he was
killed was it before tliey went to the market house?
before you went down there at all ? About ten or
fifteen minutes. W ill you swear you didn't go to
the market house that day until ten or fifteen min-
utes after Archy Beebee'was killed? Yes, sir.
5fou say at the time he was killed, you were sit-
ting or standing, which ? I was sitting down on
a stool chair; the back of the chair was broken.
Any body with you ? No, Mr, there was not. Did
you have any pistol that day, when you went to
the market house? No, sir. You hadn't apis-
tol that day? No, sir. Neither at the time Archy
was killed, before he was killed, nor at any time
afterwards? No, sir. Did you holler out.
'• hurrah for Capt. Tolar "? No, sir, I didu t,
Do you swear you didn't ? Yes, sir.
Cross-examination by the Counsel for the pros-
ecutiun.
Mr. Hollingsworth, you had been hunting that,
day? Yes, sir. Who was with you? Mr. Per-
ter's son Willie. The same young man whotesti-
tied here ? Did you meet Monk Julia while you
were uot hunting ? Yes, sir, we did. Where did
the meeting take place ? In Cambleton. It was
down in Cambleton? Yes, si". Did you hear
talk ab. ut this attempt to ravish this young lady ?
I heard him say that there was an assault made;
he told me he had heard that Jim Jones' diay
CONVENED AT RALEIGH, NORTH CAROLINA.
161
driver had made an attempt upon a young lady
there, Miss Massey. Was that all he said? That
is all he said about it; he talked some more about
it, but didn't say any thing more than that; he
just told me that was all he knowed about it; I
asked him if it was a mulatto fellow, and he said
" no, it was a black fellow." What were you do-
iig dowa to Campbellton, hunting? Yes, sir. Did
you have a gun ? I did. Did Willie Porter have
a gun ? He did. Did Monk shoot your gun ? I
let him shoot <t once or twice. Did he shoot Wil-
lie Porter's gun ? I disremember whether he shot
Willie's or not. Were you about there with him
some time ? He stayed with us half an hour or,so.
Were you and Willie together all the time ? No,
sir. Monk was not with you, nor with him all the
time ? No, sir. He was first with one aud then
( with the other ? We were together right smart
while when be first came there. Do I understand
you to say that Monk was first with you when
Willie Porter was not there, and sometimes with
Willie Porter when you were not there ? Yes, sir,
me and Dave Jones; he was down there too. You
were just shooting about there? Yes, sir. Where
did Monk go when he left you ? He went on up
towards the upper end of the field, up that way
somewheres You didn't see what became of him?
No, sir. He jest went away? Yes, sir. You
didn't hear him say anything about its going hard
with Archy, if he was found guilty? I don't re-
member. Did be tell you he had been caught?
Yes, sir, he told me had been caught. He told
you. besides telling you that this attempt had been
made upon the young lady, that the man had been
caught ? Yes, sir. Did he tell you when his ex-
amination was going to take place? No, sir, he
didn't know any thing about that. Do you say he
didn't know anything about it ? He didn't tell me
anything about it, was what I meant to say. When
you went back home, did Willie Porter go along
with you? Me and Willie left Campbellcon, and
went over in Mr. Curtis's field a while and then
came on back home, and divided the birds; I gave
him half and I took half, then we left home. Do
vou mean by home your father's store ? No, sir.
Your father don't live at his store? No, sir, the
store is in Person street, and we live in Dick
street. That was down at the residence in Dick
street that you divided the birds ? Yes, sir. Did
you leave your gun there? Yes, sir. What did
Willie do with his gun? He carried it around
to Mr. John Overby's store, and he left the
gun and birds there; me and him went on
as far as to my brother's store: How far is
that from the market house? It is about the
same distance. One store is opposite the other,
and they are on the same street? Yes, sir.
What happened then ? Pa blew his whistle for
me and I went on over to the store, and he told
me not to go up to the market house; if I did he
would whip me. He forbade you to go to the
market house ? Yes, sir. When you last saw
Willie was he going on towards the market house?
He was. Did you see him go into the crowd ? I
didn't watch him all the way there. How near
was he to the market house when you saw him
last? About the Cape Pear Bank; aboutseventy
five yards or eighty yards I suppose. How far is
your father's store from the market house ? About
one hundred and twenty six yards. Willie was
about seventy five yards from the market house.
Yes, sir; maybemore. Still moving down there?
Yes, sir. And you remained at your fathers store,
aud didn't go to the market house till after the kii-
ling ? I didn't go up to the market house till af-
ter Beebee was shot. You are certain of that?
I am. You have no sort of doubt about it. There
ain't no doubt about it. Do you remember it
distinctly ? Yes, sir. Do you remember every
day as distinctly as that, can you tell what you
were doing at any time ? I suppose as far back
as twelve years I can very well, not furtbef
back. Where were you yesterday at twelve
o'clock ? I was lying on my bed down here to the
Hotel, at the Parker house. Where were you the
first day of this month at twelve o'clock ? I was
down in the country, sir. Doing what ? I was
down on the river bank, if I am not mistaken.
Can you speak with as much certainty about it as
you speak of where you were en the day Archy
Beebee was killed ? do you swear as positively
that you were on the river bank as you do that
you were at the store that day? No, I wont
swear that I was down there, but I think I was.
But you are positively certain where you were on
the day Archy Beebee was killed? Yes, sir.
When you were first asked about it were you as
certain as you are now, or did von have to think
about it? I knowed I was at the store. You re-
member it then ? Yes, sir. So you remembered
it as well at first as you do now, I don't doubt
you at all, but I merely want to know whether it
was a refreshed recollection or whether you re-
membered it at first as well as you did afterwards,
you have no doubt or never have had, that you
were at the store when Archy was killed? No,
sir. You remember the day he wai killed and it
made an impression on yon? Slightly. Is it a
general thing to have a man killed in the streets of
Fayetteville ? No, sir. Isn'tit an unusual, didn't
it strike you as an unusual, event so that you re-
membered where you were? Yes, sir. You re-
member now very distinctly that your father
would not allow you to go up there the day it hap-
pened so that you were not in the crowd when
the shooting took place, and therefore you
could not have made the exclamation that " Capt
Tolar killed him "? No, sir.
The Counsel for the accused asked if the witnesess
from Fort Macon would arrive before day after to-
morrow.
The Judge Advocate said they were expected
th's evening at half past three o'clock.
The Counsel for the accused said he had no wit-
nesses to be examined whose examination wou'd
not consume an hour or two at least; whereupon
cn motion the Commission adjourned to meet on
Tuesday the 20th, inst. at 11 o'clock, A. M.
Raleigh, N. C. Aug. 20, 1867 11 A. M.
The Commission met pursuant to adjournment.
Present, all the members of the Commission, the
Judge Advocate, the Counsel for the prosecution,
all the accused and their Counsel.
The reading of the testimony, taken yesterday,
was waived, there being no objection thereto.
Yesterday's proceedings were read and approved.
The Counsel for the defence said; "I am infor-
mad by the Judge Advocate that those witnesses
from Fort Macon have not yet arrived. There are
two witnesses for the defence in the city, but to in- ,
troduce them, at this time, would interfere, very
seriously, with the order that has been determined
upon, by the counsel for the defence." •
The Judge Advocate said:
"I will state to the Commission that, on the six-
teenth day of this month, I addressed a letter to
Brevt. Lieut. Col. Charles B. Gaskill, commanding
Fort Macon, requesting him to forward the two
prisoners, who have been subpoenaed as witnesses
for the defence—that they might arrive here yes-
terday afternoon, at the latest. The fault of their
non-arrival is that of Colonel Gaskill, and not of
the Judge Advocate."
The Court suggested that the letter be repeated.
163
PROCEEDINGS OP A MILITARY COMMISSION,.
The Judge Advocate informed the Commission
that it had been repeated.
The Counsel for the accused asked when the
first batch of witnesses would arrive from Fayette-
ville.
The Judge Advocate- stated that they were-
due here to-morrow at nine o'clock, but he could
not say whether they would arrive at that time-
or not.
The Counsel for the accused1 said they would
be ready to proceed with the examination after
the arrival of the witnesses from Fayette ville,
even if the Fort Macon witnesses do not arrive,
to-morrow; and the defense therefore asked for
an adjournment until to-morrow.
The Judge Advocate said: "I will state to the
Commission that I have received authority from
the General Commanding the second military dis-
trict, to employ an additional phonographer, with
a view ot making the sessions of the Conamiss-
ion continue a greater number of hours per day,
and to enable the Commission to take a greater
amount of testimony. I request the authority
of the Commission to employ the phonographer
whose employment has been approved by the
General commanding the second military district,
and of an additional clerk; the phonographer to
be employed at a salary not to exceed ten dollars
(^$10,00) per day and the clerk to be employed
at a salary not to exceed live dollars ($>5.00) per
day."
The request of the Judge Advocate was grant-
ed by the Commission; and the phonographer
and clerk will be employed from and after this
date.
'On motion, the Commission adjourned, to-meet
on Wednesday, the 2nd inst., at 11 A. M.
' Raleigh, N. C., Aug. 21,1867. 11 A. M.
The Commission met pursuant to adjournment.
Present, all the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
Yesterday's proceedings were read and ap-
proved.
• Ralph B. Lutterloh, a witness for the de-
fense, having been first duly sworn, testified as
follows:
Examined by the Counsel for the accused.
What is your name ? Ralph Buxton Lutterloh.
Where do you reside ? Fayetteville, Cumber-
land county. How long have you been living
there 1 I was born there about eighteen years
ago. Have you resided there all your life ? Yes,
sir. Where have you been for the past three
weeks? Fort Macon. When were you subpoenaed
for a witness in this cause ? I don't exactly re-
member the time; it was about the twenty-fouith
or twenty-fifth of July. Was it before or after
your arrest for complicity in this affair ? It was
before. Were you in Fayetteville the day Archy
Beebee was killed? I was, sir. Were you at
the market house in Fayetteville on that day ?
Yes, sir. At what time did you go to the market
house! I suppose it was half after three. In
the afternoon ? Yes, sir. From what place did
you go to1 the market house ? From my store.
Where is your store ? It 1st nearly at the foot of
Hay Mount. In what town ? Fayetteville. On
what street ? Hay street. How far from the
market house ? About half a mile. Who went
with you to the market house that day ? Edward
P. Powers. Where is his place of business? On
Hay street, near the foot of Hay Mount. How
far from your place of business ? It is the next
door. At what hour in the day did you arrive
at the market house? About half past three.
What portion of the market house did you enter?
Entered in the western arch. The main arch in
the west? Yes, sir. Where was Archy Beebee
at the time you got to the market house 1 He
was up stairs. Then you hadn't got there when
he was carried up? No, sir. At what portion of
the market house did you take your station when
you went there ? It was nearly at the eastern
arch. Hew far from the eastern arch ? I sup-
pose it was ten feet. Was it nearer to the centre,
the hell rope, or nearer the outer edge of the
eastern arch! It was about the centre of the
market house; about the centre of the eastern
arch. In the centre of the passage that runs
through the market ? Yes, sir. Who was in
company with you there at that time ? There
was a crowd around there; I remember Mr. Ed.
Powers; Mr. Lcggett and Capt. To Jar. Bid you
four, that you have mentioned, have any conver-
sation together before the prisoner Archy Beebee
was brought down ? Yes, sir, we were talking.
Did you make or did you not make, any arrange-
ment or any combination, or any agreement to
kill that man when he was brought down stairs,
or to do him any barm? No, sir; we didn't.
Was there any conversation between you upon
that subject; the subject of killing or doing that
man any harm, when ho was brought down
stairs ? No, sir. How was the conversation that
day between- you four, carried on at that place ?
They were talking about the affair. Did you
converse about it loudly, or in an ordinary tone,
or in whispers 2 In an ordinary tone. And you
were speaking about the aflair V Yes, sir. How
long had you been at that place before the priso-
nor was brought down stairs ? 1 suppose it was
about twenty minutes. Did you four, that you
have named, all maintain your position just there
until the prisoner was brought down stairs?
Yes, sir, I think we were standing about the same
place. Did any of you go outside of the market
house from the time you first got there, until
the prisoner was brought dowu stairs, any of you
four men? I can't say that, I didn't keep watch
of them ; I didn't miss them—they may have.
stepped out but I didn't notice it. Did you see
Miss Massey and Mrs. Massey when they came
down these steps? Yes, sir. Where was your
Position at the time they came down the steps ?
was about the same place. Who were with you
at the time ? Mr. Tolar, Mr. Leggett. and Ed.
Powers—there was a crowd all around us. Who-
came down those steps with Miss Massey and her
mother; any one ? I think Mr. Bond. The
The town Constable? Ye6, sir. Where did they
go after they came down the steps ? They went
out and got in the carriage. Where was the car-
riage standing, into which they got? At the
eastern part of the market house, about ten feet
from the pavement. Opposite what portion of
the market house ? The eastern arch. The main
eastern arch ? Yes, sir. And about ten feet off
from the pavement you think ? Yes, sir. Who
went to the carriage with Miss Massey and her
mother, and Mr. Bond; any one else ? I saw no
one else. Who went to the carriage during the
time it was standing there and after these ladies
had gone to the carriage ? I never noticed any
body. Did any body go there from the crowd, of
which you formed a part ? I didn't see any one-
CONVENED AT RALEIGH, NORTH CAROLINA.
163
go there. Did you go ? No sir. Did Ed. Pow-
ers ? No, sir. Did Capt. Tolar go ? I didri't
see him go, sir. You saw nobody go from the
crowd ? No. sir. Did you notice the carriage
with any particularity ? No, sir. Do .you know
who were at the carriage, at the time it was
standing there? There was a driver there that 1
noticed. Who was thac driver ? I don't know,,
sir. Was he a white man or a colored .man ? A
colored man. Do you remeiriber any persons
who were at the carriage or about the carriage
during the time it was standing there? No, sir.
How long after the ladies got into the carriage
before it drove off? 1 think it was a few min-
utes. What do you mean by a few minutes?
Five minutes. Howlongwas it after thecarriage
drove off before the prisoner, Beebee was brought
down stairs ? I reckon it was about five or ten
minutes. Did you see him when he was brought
downstairs? Yes, sir. Where were you stand-
ing when he was brought down stairs ? I was
standing in the crowd, close to a bench? What
bench ? The bench next to the main .eastern
arch, there was a sort of stand there between
that and the steps. Which bench do you
mean, the one that runs along the eastern wall
of the market house or the one that runs perpen-
dicular to that and up the aisle of the market
house? It runs up the aisle, sir. Do you know
whose bench that is ? No, sir. Do you know
who keeps that stall there ? No, sir. How far
were you standing off from that bench ? I think
I was right at it. Where were these other pei sons
that you mention-; Ed. Powers, Mr. Leggett, and
Captain Tolar, at the time the prisoner was
brought down stairs ? I think the}* were near
me, I was noticing the prisoner. Did you see
the prisoner when he was first brought out of the
door or the landing of the stair steps ? Yes, sir.
Do you remember who was with the prisoner—
of the officers at that time? The policemen were
With him and Mr. Wemyss.; I don't remember
seeing Sheriff Hardie with him at the time- You
remember seeing Mr. Wemyss and some officers ?
les, sir. At the time the prisoner was brought
there, aud from that time until he reaehed the
floor of the market house, what occurred to at-
tract your attention or to attract the attention
of any of the by-standers ? I didn't see any
thing, sir. Did you notice any one jump on the
bench—that bench, when the prisoner appeared ?
No, sir. Did any one ju,oip on the bench ? I
didn't see any one, sir. Do you know John
■John Maultsby? Yes, sir. Did you see John
Maultsby at that time ? No, sir. Did you hear
uny exclamation from any person in the crowd
or on the bench at the time the prisoner appeared
there ? No, sir. Did you hear nobody cry out
"shoot him; here he comes; watch out boys,"
or something of "that sort ? No, sir. Did any
thing of that sort occur thereat that time? Not
as I know of, sir. That brings ns with the priso-
ner down ou the floor; what occurred then, sir,
to attract your attention"? Well, sir, nothing oc-
eurred to attract my attention uutil he went to
pass through the main eastern arch. Where
were you standing, sir, .at the time thev passed
you going out of the main eastern arch ? 1 was
standing there by the bench. Who were near
you, who were with you at that time ? I think
Mr. Ed. Powers, 'Capt. Tolar and Mr. Leggett.
Do you know where Sam Hall was at that time?
No, sir, I don't. Do you know where John
Maultsby was at that time ? No, sir. OrSykes?
I never saw Sykes. You knew where none of
them were except these four you have spoken of?
No, sir. Did the party in charge of the prisoner
pas6 you on the right or left band? On the
right. Which way were you looking? I was
looking at the prisoner; I was standing sort ot
with my back to them in the crowd there, and
they passed nearly in front of me, a little to my
right. Did you shift your position at all, until
the prisoner was shot ? Yes, sir. How far had
they got with the prisoner at the time you
shifted your position, as he passed out of the main
eastern arch ? I think I moved on out with the
crowd on the pavement. When you moved out
on the pavement where did you take your stand ?
I took it out.about the edge of the pavement; I
suppose it was about the middle of the main
eastern arch. Who moved out with 3 ou ? I
don'l remember, I think the crowd moved out,;
I think we all moved together. You think your-
self, and Leggett, and Tolar moved out together?
Yes, sir. What occurred after you got there?
I saw some excitement in the crowd. Just do-
scribe it ? It looked like they were pushing on
after the prisoner, and the prisoner seemed to be
toying to get out of the hands of the police. In
the pushing on towards the prisoner did you
notice Tolar, Ed. Powers or Leggett ? No, 6ir.
Were they with that crowd that were pushing on ?
No, sir. Well, sir, what was done with the crowd
that was pushing on, any thing or nothing?
While the prisoner -was trying to get away, 1 saw
Monk trying to get to him. 1 think I saw Mr. '
Nixon get hold of him, and the prisoner seemed,
to be trying to get-away from the police at that
time, audi heard the report of a pistol. We
haven't got that far yet, and you say the pris-
.oner made efforts as if he was trying to get away.?
Yes, sir. And then you saw Monk make at him
with the knife? Yes, sir, Where was Monk?
Monk was a good piece off from the pavement
there out in the crawd on the eastern side of the
market house. Was he to your right or left?
I was looking right straight at liim, he was in
front of me. Diagram of market house at Fay-
etteville exhibited to the witness. Point out, if you
please on this diagram, where you were standing,
ns near as you can, at the time Beebee was shot,
•firstpointoutwhere'Beebecwas when he was shot?
Here, just opposite the southern edge ot the south-
era arch. Was ho near the market house, near the
center of the .pavement, or near the edge of the
pavement ? About the center of the pavement,
and about the southern portion of the southern
arch, or the eastern side ? Yes, sir. Now, where
were you standing ? I was standing about nearly
the center of the main eastern, arch. What part
ot the pavement? I think I was about the edge
of the pavement. Now where was Tolar stand-
ing? I didn't see Tolar at that time. Wherewas
Ed. Powers standing? I can't describe where he
was standing, I looked around once or twice
and saw him near me. Did you see Tolar near
you when you looked around ? No, sir. Where
was Leggett standing ? I can't say that. Was
he standing near you? I never noticed, sir; I
didn't notice him after I took my position; I
noticed bitn when he was going through the arch.
Well, sir, did you see the prisoner when he was
shot? Yes, sir. Did you see who shot him ? No,
sir. Did you see the smoke of the pistol ? No,
sir, I never saw the smoke. Did you see the flash
ot the pistol? No, sir. Did you hear the report
of the pistol? Yes, sir. Well, sir, from where
you were standing, from the report, where was
the person standing who shot him ?. I think tbo
person who shot him was rather to my rear and
left. That would- bring him off the pavement ?
Yes, sir. Which way were you looking? Kigbt '
at the prisoner. How far do you think the per-
son was from the prisoner who shot bim ? I
think some three or four feet, I didn't notice
particularly how far he was. Your idea of it is
gathered entirely from the report and sound of
rV"l fb^t? Yes, sir. X>iri *" "• ---*-'**
164
PROCEEDINGS OF A MILITARY COMMISSION,.
weapons in the hands of any body at the time of
the shooting ? Yes, sir, just as 1 heard the report
I saw a pistol. In whose hands was it ? Sam.
Phillips. What sort of a pistol was it, a
large pistol or a small one ? A large pistol. In
what position did he have the pistol ? About so,
(down by his right leg, in his right hand.) Had
you seen a pistol in the hands of any one before
that time ? No, sir. At the time you saw the
pistol iu the hands of Phillips, how long was it
after the shooting? It was just as soon as I
could look around. What attracted your atten-
tion to that direction ? The report of the pistol.
And being attracted by the report of the pistol,
you looked around in that direction and saw Sam
Phillips with a pistol in his hands in that way ?
Yes, sir. And thai was the only pistol you saw ?
Yes, sir. Was Phillips far from the point where
the report of the pistol appeared to you to be ?
He seemed to be right about in the place from
where the report of the pistol came. When you
heard the report of the pistol, you turned around
and saw Phillips with a pistol down by his right
side? Yes, sir. What became of you then, sir ?
I noticed the prisoner lying there and I walked
oft'. Did you hear Sam Phillips say anything at
that time? No, sir. What became of Phillips?
I never saw him any more after that, sir. How
long did you remain there in that position ? It
was about two or three minutes. Did Phillips
leave you, or did you leave him ? I never noticed
him, when I left I don't know whether he was
standing there or not. Did you see Capt. Tolar
at the time ihe pistol was fired ? No, sir. Was
there more than one pistol shot fired that day ?
No, sir. What became of you, Mr. Lutterloh,
after the negro was killed ? I went up town, up
to my store. You say you were on the pavement
at the time the pistol shot was fired? Yes,
sir. How far were you off from the prisoner ?
I was some three feet. And the man who fired
you say you think he was a little to your rear
and left, and off the pavement about three
feet ? I said the report of the pistol was about
three feet from me. Were there any persons
between you and the prisoner? Yes, sir.
How many, sir ? I didn't notice how many;
there was some there. Were there any persons
between the prisoner and the point where you
heard the report of the pistol ? Yes, sir. How
many, sir ? I can't say that. Did you know
any of them? No, sir. Did you know whether
they were white or black ? No, sir. Is there
anything else that you know about this mat-
ter ? N o, sir. I want to understand from you
where Tolar was at the time you last saw him ?
He was under the market house about ten feet
from the main eastern arch. Then you didn't
see him at all after you went out upon the
pavement? No, sir.
. Cross-examination, by the Counsel for the
prosecution.
Mr. Lutterloh, are you related to Miss Elvira
Massey? No, sir. No family connection ?
No, sir. What day, and what hour of the day
did you first hear that this negro had attempt-
ed to commit a rape ? Early in the morning. Of
Monday? Yes, sir. The day he was killed?
Yes, sir. You had heard nothing of it on the
Sunday previous ? No, sir. Who told you
that? I don't remember, sir., Where
were you when you heard it ? I
think I was tip about the store, sir.
When you saw Capt Tplar at the market house,
when yeu got down there that day, was that the-
first time you had seen him that day? Yes, sir.
You and Ed. Potvers went down together? Yes,
sir. Had Ed. Powers told you of this attempt that
had been made upon this young lady ? No, sir, I
don't think he did. Can you recollect who it was?
No, sir. Did you bear it from several sources?
Y r s, sir. Did you know at that time that any at-
tempt was going to be made to punish this negro
by lynch law? No, sir. Did you hear nothing
of this sort? No, sir. From any quarter? No,
sir; Were you at your store all day, Mr. Lutter-
loh from the time you first heard ef this thing ear-
ly in the morning, until the time you went to the
market Louse ? I don't know that I was at the
store all day; I went to dinner about one o'clock.
Did you have any conversation with any person
between the time vou first beard of this eTent—I
speak of the man Beebee having attempted to rav-
ish Miss Massey ; did you speak to no one upon
that fact between the first time you heard of it,
till the time you went down to the market house ?
I was in crowds and I heard them speak something
about it. You heard it spoken of a great deal did
you ? No, sir. How many times did you hear it
spoken of between early in the morning, and three
or four o'clock that day? I must have heard it
some two or three times. Do you remember any
person spoke to you about it? No, sir. And in
that conveisation there was nothing like a threat
of violence? No, sir. And you swear in the
presence of Almighty God, that you know of no
combination that was made for that purpose?
Yes, sir. When you went down to the market
house, Mr. Powers went with you ? Yes, sir.
Was that by agreement, or by accident ? He came
out of his store, and I was standing in my store
door, and he asked me to walk down and hear the
trial. Did you have any weapon on a( that time? '
No, sir, none at all. Do you know whether Ed.
Powers had any weapons on at that time? I don't
know for certain; I didn't see any about him. Did
you hear him say he had OBe? No, sir. Have
you any reason for knowing that he had a weapon
on at that time, when he left his store? Iam
pretty certain he didn't have one. Why is that,
sir ? I know all about him, and I know he is nev-
er seen with a weapon ? Your conclusion is from
v»ur general knowledge of the man? Yes, sir.
Yon didn't see any? No, sir. You don't know
that he had one ? No, sir. And you didn't have
any weapon? No, sir. You went down to. the
market house together ? Yes, sir. When you got
there, did you find Mr. Leggett, and Mr, Tolar there
already ? I think they were there about the
time we got th ere. Was Mr. Leggett there when you
got there ? I think he was, at the time or pretty
soon after. . Could you speak with certainty ?
No, sir. You don't know whether he was there
when vou went up, or whether he came after-
wards ? I think we got there nearly at the same
time. Are you certan that Capt. Tolar was there
when you got there ? Yes, sir", I think so. And
your impression is, Leggett came about the time
vou did? Yes, sir. You then took your station
about ten feet from the center of the main arch on
the eastern side? Yes, sir. Fronting which
way? Fronting east. Were you facing Mr.
Tolar as you stood in the group, or were you all
facing the same way ? We were faciDg each
bther, standing aronnd there in a circle. What
was the size of the crowd when you got there in-
side of the market house, I speak of? I think
there must have been twenty or twenty-five peo- •
pie. Besides you four in the group? Yes, sir.
Didn't I understand you to say there wasacrowd
CONVENED AT RALEIGH, NORTH CAROLINA.
165
around there, in giving iri your testimony in chief?
Yes, sir. Was that what you meant by the
crowd; about twenty or twenty-five people be-
sides yourselves? Yes, sir. There was no
crowd large enough to fill the whole market
house ? No, sir. No crowd large enough to make
an impression upon you as you stood there ? No,
sir. Who did you see in the market house be-
Bides these other gentlemen you have named, at
that time, when Archy was up stairs in the twen-
ty minutes before he came down; did you see
Tom Powers there that time ? I don't know him.
Did you see Monk Julia there at that time? I
didn't see him under the market house. Do you
know any person who was theie? I think Mr.
Nixon was there, and Sam Hall I saw him under
the market house. Where was Sam Hall when
you saw him? About the center of the market
house. Where the bell rope hangs? Yes, sir.
Did you see Henry Sykes there conversing with
Sam Hall? No, sir. Did you see John Maults-
by then conversing with Sam Hall ? No, sir.
You don't remember any one except those three
gentlemen you first named and Sam Hall and Mr.
Nixon ? That is all I remember. Did you see
Sam Phillips there at that time? No, sir. Did
I understand you to say you could not tell any
other persons there that you saw? I don't re-
member any one else. Was there any crowd
outside of the market house, besides this crowd
that was inside? Yes, sir. How many persons
do you suppose were around and about the mar-
ket house? I have no idea, sir, I never took
particular notice; I noticed some persons stand-
ing out there. Were they standing at the east-
era end? Yes, sir. Were there as many out-
side as there were inside of the market
house? Yes, 6ir, I reckon there were more.
You suppose the crowd to have been forty or fif-
ty people inside and outside of the market house?
Y es, sir. When did you first see that carriage
standing there in front of the east end, about ten
feet from the pavement? I noticed it when I
first got there. Was that about the position it
first occupied when you first saw it ? Yes, sir.
You saw Miss Massey and her mother when they
first came down stairs? Yes, sir. Mr. Bond
came down with them? Yes, sir. How long
had you been there, when they came down? I
was there about fifteen minutes I guess, sir. Up
to the time that she came down had you seen any
weapons in the hands of any one in that crowd ?
No, sir. Did you see any belt that might have
borne any weapon, about any man's person ? No
sir. No weapons, either knives pistols or clubs ?
No, sir. But when these ladies came down you
say Mr. Bond came with them? Yes sir. He
went to the carriage with them? Yes, sir. Did
you still retain your same position about the cen-
ter of the market house ? Yes. sir. Do you re-
member that when you first went to the market
house, you didn't go right to the center, but you
went a little to your left when you come in the
west end, and when the ladies came down you
moved towards them, changing your position to
about the center, or do you think you were stand-
ing about the same place all the time ? I think
we were in the same place all the time. Until
the ladies came down stairs ? Yes, sir. Did you
notice them pass to the carriage ? Yes, sir. You
didn't know Tom Powers ? I know him now.
You didn't know him at that time? No, sir.
Didn't you know him when you 6aw him ? No,
sir. When these ladies passed out to the carriage,
did you look at them as they passed ? Yes, sir.
At that time could you see the rest of these gen-
tlemen who were with you standing there previ-
ously, or was your attention distracted by the
carriage ? I was noticing the ladies get into the
carriage. Did you sec any one go to the carriage
except Bond? No, sir. Did you see no one
speak to Bond as he was standing near the car-
riage or coming from it ? No sir. Did you see
what became of Bond after he went to the car-
riage? No, sir. Do you know whether he went
up stairs or remained near the carriage ? The
carriage drove off and I never noticed which way
he went. Your impression is no one went to the
carriage to speak to the ladies? Yes, sir.
Were you looking at the carriage pretty much all
the while it was standing there? Not all the
while. How long did it stand there after the la-
dies got to it ? About five minutes. Were you
looking at the carriage when it drove off, or all
the time from when the ladies first went there
until it drove off? I noticed it when the ladies
got in it, and when they drove off. But the in-
tervaloftime between the time they first got
there and the time they drove ofl you were not
looking at it ? No, sir. Did you see Mr. Tolar
at the time that carriage was standing there, and
you were looking at it? Yes, sir. Mr. Tolar was
there near you? Yes, sir. Did you say he didn't
move away and go to the caniage? If he did I
didn't see him. Did you see Mr. Phil. Taylor go
to the carriage ? No, sir. Did you see Mr. Bob.
Mitchell go to the carriage ? No, sir. Did you
see Mr. John Maultsby go to the carriage?
No, sir. You say you didn't know Tom. Pow-
ers, but you saw no man at all go to that carriage
except Bond ? No one except Bond. And if
Mr. Tolar went there you didn't know it ?
No, sir. Now, sir, after these ladies came
down, did you notice any peculiarity about the
lady; did she have her veil up ? I noticed she
was weeping. Had her handkerchief to her
face? Yes, sir. Was her weeping noisy or '
quiet jobbing, as she passed through the
crowd ? It was not very noisy. W as her
mother weeping also ? I never noticed her
mother. Did you see any marks of violence
upon the young lady at the time ? No, sir, I
heard some person standing by me say "see
how she is bruised." Who was that person ?
I can't say. Did you see any bruises ? No,
sir. You heard that remark from many voices
or from one ? I only remember it from one
voice. You saw no signs of the bruises? No,
sir. You saw no blood nor marks of violence ?
No, sir. Her face was concealed with the hand-
kerchief? Yes, sir. And she went crying to
the carriage? Yes, sir. Did you notice any
outbreak in the crowd as she passed, any cries
or threats of violence ? No, sir. That crowd
was very quiet was it ? They were talking there.
There was no exhibition of temper? No, sir.
No exhibition of violence, no appearance of a
mob or riot ? None that I noticed of. And when
the ladies passed through, you saw no disturbance
either? No, sir. You did not, as I understand
you, apprehend any violent outbreak at that
time? No, sir. You saw no reason to apprehend it?
No, sir. Now, when the prisoner started down
stairs did you see him on the steps ? 1 saw him
about the bottom steps. Could you, from the
position you occupied, see the door that opens at
the top of the steps that he came out of at the
top of the last flight ? Yes, sir, I think I saw him
about that time. Did you see him when he came
out of the door? Yes, sir. How near were you
to him while he was on the steps; how near were
you to the steps; you were standing with your
right side towards the steps? Yes, sir. And by
glancing around you could see the steps distinct-
PROCEEDINGS OP A MILITARY COMMISSION,
ly ? Yes, sir. How far were the steps from your
right as you stood there ? Twelve or fifteen feet
1 should think, sir. How wide do you think the
market house is ? I should think it was about
forty feet. Then you were a little nearer to the
right hand wall as you faced the east than you
were to the left hand at that time ? I was about
fifteen feet from the steps. That would bring
you about fifteen or sixteen fees from the wall,
that is on your right as you looked east ? Do
you mean the southern wall? Yes, sir, bow far
that on your right do you suppose as you stood?
I suppose it was about nine or ten feet. The
steps were nearer to you than the southernyvall?
No, sir. Then you were further back inside of the
market house; you were further west than where
the door was that opens at the top of the stair
steps ? No sir. Do you think you were further from
the steps than you were from the south wall
of the market house? Yes, sir. Weren't
they between you and the south wall of the
market house? No, sir. Where were they
relatively to you, to your right and froqt, you
were facing east ? Not at that time the piis-
oner came down; I was noticing the prisoner.
You turned towards the steps as he came
down? Yes, sir. How far were you from
those steps? About twelve feet. And you
think you were nearer the south wall of the
market house? Yes, sir. By a direct line
from you to the south wall, would you be
nearer to the wall than the steps ? I should
think I would be nearer to the steps. Then
you were in the near of the steps, were you
west of the steps ? No, sir, I was somewhat
north-east. North-east of the steps? Yes,
sir, if anything.
(Witness is shown a diagram of the market
house.)
Weren't these steps between you and ..the
south wall? No, sir. Are these steps ten
feet from the small arch, that is, from the hot-
torn of the steps would it be about ten feet ?
Yes, sir. As you were standing there at the
moment you saw Archy land at the bottom of
the steps, did you see these gentlemen with
you who had been with you before; I mean
Captain Tolar, Mr. Leggett and Ed. Powers ?
I think they were standing around me; I was
noticing the prisoner. Then you can't speak
with absolute certainty about them, except
from the fact that you saw them there shortly
before ? No, sir. From the time he reached
the bottom of the steps to the time he got into
the main arch and turned out, was there any
noise in that crowd ? No, sir. No outcry?
None that I heard of. No disturbance of any
kind ? No, sir. Didn't you see any rush made
at the prisoner? Not until he got out of the
market house; until he got outside of ti^e
arch; I never saw any till he got outside on
the pavement. While he was inside of the
market house, and while he was turning
through the main arch, you didn't see any as-;
sault made on him ? No, sir, not as I saw.
You heard no outcry ? No, sir. You saw no
attempt to make an assault ? No, sir. You
saw no grabbing at him ? - No. sir. You didn't
see anything upon the part of the officers, the
Sheriff, and the others, like an attempt to keep
the crowd off of him? No, sir, I never
noticed that. Did you notice how Archy was
dressed that day ? No, sir. Did you notice
whether he had any hat on or not ? I never
noticed it. Did you notice whether he was
hare-headed or not ? No, sir. But you heard
no noise, saw no disturbance, or anything like
a rush or assault upon him, while he was inside
of the market house, and until he had passed
through the arch and got on the pavement
out side ? No, sir. When he got on the pave-
ment, out side, immediately was it, then, that
the first rush was made at him ? The crowd
seemed to be pushing out there towards him.
What do you mean by pushing ? The crowd
seemed to be moving that way. Do you mean
the crowd seemed to be pushing towards him ?
Yes, sir, they seemed to be closing up op him j
as he went out the people from under the mar-
ket house went out there. How many were
there then ? I never noticed. Had the crowd
grown any ? Yes, sir. Do you think it had
grown considerably ? Yes, sir. Were there
none out side as well as inside at the time Ar-
chy passed out of the arch on the pavement in
front ? Yes, sir. What is your best estimate
of the number of persons who were there at.
the time Archy passed out of the arch and got
on the pavement ? I should judge about one
hundred and fifty people; say one hundrd
and fifty people, or two huudred.
Now, sir, had you moved out of the market
house until the time Archy passed out of the
arch ? Yes, sir. Was he through the arch when
you moved or was he in the arch ? I think he
was just passing out under the arch. Just as he
was passing through, you moved towards the
arch to get out. Yes, sir. You were standing
near Becky Ben's bench until that? I don't
know whose bench it wa6. You were standing
near the bench that was on your right? Yes,
sir. Just as he passed out of the arch you raov-
ed to get out; did you see Tolar at the time you
started tp go out ? No, sir. When was the last
time you had seen him up to that; had you 6een
him since the negro Archy had got to the foot of
the stairs ? No, sir, I remember seeing him
about the time Miss Massey came down. Is that
the last time you remember seeing him? Yes,
sir. When you moved out who moved along
with you, the whole crowd? Yes, sir. The
crowd seemed to be moving out very quietly or
did they rush out? I didn't see any rushing,
whatever. They moved out in an orderly man--
ner? Yes, sir. When you moved out did Ed.
Powers and Mr. Leggett move along with you;
you saw them after Archy got to the foot of the
stairs? Yes, sir. Mr. Tolar you lost sight of.
Yes, sir. Were these other gentlemen near you
when you moved out of the arch on the pave-
ment? Yes, sir. Did those two gertlemen go
with you; can you speak confidently about that ?
Yes, sir. You stood together on the pavement ?
Yes, sir, we were around right together. Now,
sir, was there any crowd behind you? Yes, sir,
Was the crowd large enough to stand behind you,
in front of you, and on each side of you? Yes,
sir. Was the crowd in commotion or was it per-
feetly still? When the prisoner was outside it
seemed to me to be in commotion. The crowd
was in a stir? Yes, sir. Were they pressing on
the prisoner Beebee ? Yes, sir. Were they press-
ingonwith violence? No, sir. Did you see
see the Sheriff try to resist the pressure—you
know Hardie don't you? Yes, sir. Didn't you
see him resist the pressure of the crowd ? No,
sir. I am speaking now of just after the negro
CONVENED AT RALEIGH, NORTH CAROLINA.
167
passed oat of the arch on the pavement; you
didn't see any resistance on the part of the Slier-
iff? No, sir. Did you see Wemyssthere? Yes,
sir. Did you see him or any of the police resist
the crowd ? He told them to keep back; I saw
the police. Did you hear them say "keep back ?' *•
Yes, sir. Did you hear any other exclamations
in that crowd? No, sir. Mr. Lutterloh, did you
hear 110 exclamations in that crowd? I heard
the police tell the people to get back. Didn'tyou
hear the cry "kill him, kill him?" No, sir.
Didn't yon hear the cry "he will get away"?
None but the police. Did you hear the police cry
'' he will get away"? Yes, sir,, telling the people
to stand back. Which one? 1 think there was
several of them; Mr. Faircloth was one You think
the police cried'• he will get away," you heard
that in an excited quick tone, such as a man would
use on such an occasion ? Yes, sir. You then did
hear them tell the crowd to keep back, and you
heard the exclamation, "he will get awav," which
you attributed to the police? Yes, sir. You didn't
hear any remark " kill him " from any quarter at
t^at tim^ ? No, sir. At the time these policemen
uere saving " he will get away," was it at the
same time that they said that they were tei-
ling the crowd to keep back. There were several
of them speaking; some of them were telling them
to stand back, and others were telling them to go
away. But I mean was there any exclamation in
the crowd that the negro man Archy would get
away? No, sir. You heard nothing of that sort?
No, sir. You think the Dolice were saying to the
crowd "getaway"? Yes, sir. Did they seem to
be in earnest about it ? Yes, sir. Did they exert
themselves to keep the crowd back? Yes, sir.
Who did you see in that crowd? I never noticed
one of them. Couldn't you recognize a soul there
that you saw ? No one between me and the police.
You saw no one between you and the police that
you recognized ? No. sir." Were they strangers
to you ? No, sir, their backs were towards me
The police had their faces towards you? Home
had and some hadn't. You recognized the police,
but the men who were nearer to you, and many of
them neighbors and peeple in town, you couldn't
tell who they were ? I never noticed none of
them. I suppose there were fifteen or twenty peo-
pie between you and the police? Yes, sir. Up
to that time had you seen any weapons in the
hands of any one? No, sir. Had you heard any
one say they had a weapon, in the crowd. No ^sir.
Did you see any marks of weapons in any shape or
way ? IJo, sir. Do you know that any one had
weapons in that crowd ? No, sir. Have you any
reason for knowing ? No, sir. You neither heard
of it nor saw signs of it, and have no reason for
knowing that any one in taat crowd bad a weapon
that day? No, sir. You don't mean to say you
had no reason for knowing Mr. Phillips had a
weapon ? You mean about the weapons up to the
time, I saw the struggle? I ask you if you have
any reason for knowing that no persons had weap-
ons up to the time that the negro was shot? No,
sir. Fou saw Phi lips with a pistol; wasn't that
a pretty strong ground for knowing that he had
one at that time? 1 didn't see him have one at
that time. You saw no belts nor you saw no pro-
tuberances about any man's person? No,
sir. And the only man you saw with a
pistol afterwards was Phillips ? Yes, sir. Did I
understand you to say upon your examination in
chief, the prisoner seemed to be trying to get
away ? Yes, sir. What did he do ? He seemed
to be struggling to get away. How did he strug-
gle, did he knock any one down? No, sir, he
was just trying to pull away. Which way did he
pull ? He seemed to be jumping hard, I never
noticed which way. "Was that jumping about
taking place when the crowd was pressing ou.
Yes, sir. And you concluded he was trying to
get away ? Yes, sir. Did'nt you cry out that he
would get away ? No, sir. Did any one around
you cry out he would get away ? 1 never heard
any one. Didn't you see him fall in his efforts to
getaway? Not in his efforts to get away. Didn't
you see him fall before he was shot? No, sir, I
never noticed it. His back was towards you was
it? Part of the time it was and part of the time
he wasn't. Was your face towards him until af-
ter liegot out on the pavement ? Yes, sir, I saw
his face once, So he turned about at some time,
and his face was towards the north? Yes, sir.
What time was that, directly after he got outside ?
Yes, sir. What was he doing then ? He seemed
to be struggling to get away. Was the crowd
pressing on him at that time, was it all one sim-
ultaneous thing, this pressure of the crowd and
the struggle of the policy keeping them back,
and the negroes efforts to get away? No, sir,
some of the crowd seemed to be pushing on him.
Was it at the same time that some of the crowd
seemed to be pushing on him that the police
seemed to be trying to keep them back? Yes,
sir. All these things occurred about the same
time? Yes, sir. How long a time do you think'
elapsed between the time the negro got outside
of the arch and the time he fell, being shot ? I
suppose it was five minutes. Y"ou think the
struggle for his life lasted for five minutes be-
tweeu the corner of the arch and the corner of
the pavement? Yes, sir. How many steps
would it take to pass from the corner he went
around to the point when he fell ? It was about
two steps. You think he didn't go more than
two steps, and lie was five minutes going those
two steps ? Hd seemed to stop there in one
place. Was that just after he got outside ? Yes,
sir, about the time he was at the corner, the
southern corner of the arch. You mean just be-
fore he was shot ? Yes, sir. At the very point
he was shot ? Yes, sir, he was about the point he
was shot. So that was where you noticed the
stoppage ? Yes, sir. Did you notice no stoppage
between the time he got outside of the arch and
the time he reached the point where he was stop-
ped ? No, sir. When he turned out of the arch
he went about- two steps and halted? Yes, sir.
And there he remained, for the rest of the tim*
that made up those five minutes that elapsed
from the time he left the arch until he was stop-
ped. Yes, sir, he was fooling around there, he
was not standing in one particular place. This
struggle with the police, did it take, place at the
mouth of the arch or the point whef-q the negro
was shot? I think it was about the time he got
to the corner where he was shot. You think the
rush was not made on him until then ? No, sir.
You don't think there was any rush made on him
just after he got outside of the arch ? Well, the
crowd seemed to be pushing up there—I never
noticed any great rush.. You spoke just now of
Several persons having been engaged in the rush
on him, and the police keeping them back, of
the negro's attempt to get away, all happen-
ing at one moment as if it was one event, now
did that take place at the arch, or did it take place
further down towards the corner where the negro
was.shot? Further down towards the corner.
You saw no obstruction to his movements from
the time he got out of the arch until he got about
the point where he was shot? Yes, sir, just
before he got to that point. And you think it
was five minutes between the time he got out of
the arch until the time he was shot ? I think it
was about that time. Think again, do you think
it was as long as that ? I could not say for eer-
tain; I said it was about five minutes. I know
168
PROCEEDINGS OF A MILITARY COMMISSION,
you said it was, and I know it is very difficult to
estimate time on such occasions; I want you to
tiink over what occurred in that brief space of
time and see if you are correct ? I would say three
minutes any how. Did it happen almost as quick-
ly as it could have been done, or was there some
delay; you think about three minutes would cov-
er the whole space? Yes, sir. You say you
didn't see Arcliy come down to the ground at all
until he was finally shot? I never noticed it.
Did you see Sam. Phillips at all before Archy was
shot ? No, sir. 1 understand after you got out-
side of the market house you didn't see Tolar,
but Mr. Leggett and Ed. Powers were near you ?
Yes, sir. Were they behind you or before you ?
I think we were standing nearly in a line. Were
you in the middle, between the other two, or
were yon on the right or left of that line ? I
could not. tell that, sir. You don't -pretend to
locate with perfect accuracy, but you- have an
abiding impression that you were all standinp'
there pretty close together ? Yes, 3ir. Who dii
you say was standing nearest to yon before the
pistol was fired; did you notice any one else ?
No, sir. Had you seen John Maults'by that day
up to that time ? Not to notice him. Did you
see Henry Sykes that day up to that time ? No,
sir. You say yon had seen Sam. Hall? Yes, sir.
You saw him inside of the market house? Yes,
sir. Did you see him outside in the crowd after-
wards ? No, sir. How far were you from the
prisoner when the pistol shot was fired ? I sup-
pose I was about three feet. How far do you
think the person was who shot, by the sound ?
About three feet, or perhaps four or five.
Was the noise of the pi tol behind you ? It was
rather to the left and rear. You.think that Archy
■was about three feet from you wnen he was shot ?
Yes, sir. And he was a little further from this
man who fired the pistol? Yes, sir. That man
was on the left and a little to your rear? Yes,
sir. You were standing on the pavement were
you? I was standing on the edge of the pavement.
And the man who fired the pistol must have been
off the pavement ? Yes, sir. What distance do
you estimate as three feet; point out some object
about three feet from you?
(Witness points out an object which measures
five feet.)
Arcbv was nearer to you than that when he was
shot? Yes, sir, he was some nea-er. And you
think he was standing on the pavement opposite
the south-east corner of the market house, and op-
T»osite the south edge of the small arch? Yes. sir.
You say after the nring of that pistol you didn't
see Mr. Tolar? No, sir. Did you see Mr. Leg
fett? I don't remember seeing him, sir. You
beard the report of the pistol distinctly, then;
was it near enough for you see any blaze or light?
I didn't notice the blaze, You didn't notice any
smoke from it? No, sir. You turned instantly
in that direction as soon as the regro dropped and
looked around, and saw Bam Phillips standing
about in the position that the man would have
been who fired the pistol? Yes, sir. He had a
large pistol in bis right hand down by his right
side ? Yes, sir. Did he have it up rubbing it or
taking the cap off. or anything of that sort? No,
sir. Did he look very much nlarmed ? I didn't
notice anything like that. Did you see any one
else with a pistol? No, sir. No one passed a
pistol to you at that time, or shortly afterwards?
No, sir. When that pistol just fired, or shortly
after, didn't you hear any exclamation in tbe
crowd as to who did it ? I heard some boys say
" Capt. Tolar did it." Directly after it was done?
No, sir. How long after ? I suppose it was some
two or three minutes afterwards; as soon as he
fell I walked up and looked* at him, and walked on
and stopped around at the southern end of the
market house. Who were those bovs? I didn't
notice them. Did you see Geo. Holliegsworth
there? No, sir. Youknowhim? Imightknow
him if I was to s >e him. You don't remember h'tn
particularly? No. sir. About these exclama-
tions; -how many of those boys were there that
made the exclamation " Capt. Tolar s-bot him."
I heard it once or twice; I don't know whether it
was one boy or two. Was that at the point where
the negro was shot ? It was in the crowd some-
where, I didn't notice. The person was not stand-
ing right by you ; he was not standing near erough
for you to see who it was ? No, sir. Did you hear
anybody exclaim that any one else had done
it in cowd ? They laid it upon some one who I
knew it was impossible for him to have done it;
Mr. Williamson, who has got no hands; some one
was hollering out it was him. There was a joke
made right straightaway, that it was no-armed
Williamson who did it, that they saw his finger
on the trigger ? Yes, sir. That was directly al-
terthis tragedy was enacted? No, sir. Iam
talking about then and there; the only exclama-
tion you heard in the crowd just after it happen-
ed within two or three minutes, was that Captain
Tolar had done it? Yes, sir. You didn't bear
any other exclamation then ? No, sir. Were those
boys in front of you or behind you, who made
that exclamation? I think they were behind
me. Were they on your right or your lelt be-
hind you ? I never looked around there at all at
them; I could not say which. You spoke of the
direction the pistol was from the sound; I thought
you could not tell from the sound of the voice ?
No, sir, I could not say which way they were.
Have you ever heard Capt. Tolar say siiice this
event took place, that he had a pistol that day ?
No, sir. About this movement of Monk Julia,
that you spoke of, 1 think you saw him at one
time trjing to make at the prisoner Beebee with
a knife; when was that before he was shot?
Yes, sir. Just before he was shot? Yes, sir.
How close was he to him ? Ten or fifteen feet
from him. Appearing to make his way through
the crowd? Yes, eir. Did he have a knife in
his hand ? I never saw a knife. I didn't hear
you say he had a knife in his hand, hut in the
examination in chief the Counsel used the ex-
pression "with a knife;" and you replied "Yes,
sir,'" you say now he didn't have a knife? I
don't remember seeing one. This man was just
trying to make his way through the crowd ?
Yes, sir. Did you see him strike at all ? No, sir.
Did you see his hands ? No, sir, I might have seen
his hands; I didn't notice tliem particularly. Did
you see who the man was who had hold of him ?
% think it was Mr. Nixon. Didn't you see anybody
else near about that negro at the time he was kill*
ed besides Monk and Nixon,in the ten feet that was
between them and the prisoner; didn't you see
andybody that you knew? I never noticed a soul.
Have you tried to bring your best recollection to
bearupon this subject? Yes, sir. Isthatfheonly
time you saw Monk that day? Yes, sir, that was
the first time I had seen him that day. Was it
the last time ? It is the last time I remember
seeing bim.
Question by tbe Commission :
In what direction was the negro's face turned
at the moment the negro was snot ? I can't say,
sir, which way; I never noticed particularly which
way his face was. Was he facing towards you?
He must have been facing rather south. We don't
want to know what he must have been, we want
to know what way he was facing? I think he
was facing rather eastward or south-eastward.
That would be facing towards Mr. Davis' store ?
Yes, sir. You think.he was facing towards Mr.
CONVENED AT RALEIGH, NORTH CAROLINA.
169
Davis'store? Yes, sir. At the time Beebee was
shot what was the position Sheriff Hardie had
with reference to Beebee ? Well, I don't remem-
ber, sir, I remember just as I saw Beebee fall I
saw Sheriff Hardie standing there feeling his hair;
I thought he was shot first; I don't remember
what position he had when he was shot. .
Edward P. Powers, a witness for the de-
fence, having been first duly sworn testified as fol-
lows.
Examined by the Counsel for the accused.
What is your name? Edward P. Powers.
Where do you reside ? Fayette ville. How long
have you been residing in Fayettevillc ? I was
born and raised there. What is your business in
Fayetteville ? Merchant. Where is your place
of business ? Near the foot of Hay Mount.
How far from the market house ? Half a mile.
How far is your place of business from Ralph
Lutterloh's ? We are joining doors. Is his to
the east or west of your place ? West. Imme-
diately west ? Yes, sir. Were you in Payette-
ville the day Archy Beebee was killed? Yes,sir.
Did you go to the market house that day? Yes,
sir. At what hour did you go to the market
house ? About half past three. In the after-
noon ? Yes, sir. Who went with you to the
market house ? Ralph Lutterloh. On which side
did you go to the market house, upon the
eastern, the northern or the southern side ? The
Northern if I remember right. What portion of
the market house did you enter, upon first getting
there? The large west arch. Who went into
that large western arch with you sir ? A short
distance from the arch I got up with Capt. Tolar.
He had been absent in Bladen county, I hadn't
seen hirn for perhaps a week or ten days. That
was I suppose about four o'clock, and I went up
and spoke to him. Where was Tolar when you
first saw him ? He was near Mr. Hinsdale's store.
Is that on the northern or southern side of the
street ? On the southern side. Tolar had been
absent for a week or ten days, down in another
county, and you went up to him and spoke to him,
just an ordinary salutation ? A salutation, and I
had just an oi'dinary conversation with him. Then
you and Tolar moved into the market house,
where was Lutterloh, did he go in at the same
time ? I didn't notice particularly, he might
have entered the arch before we did, we were to-
gethcr under there. What part of the market
house did you go in when you first went in ? I
was standing near Becky lien's stall. Who was
standing near you ? If I remember Capt, Tolar
was standing there, Ralph B. Lutterloh, Leggett,
that was about all the party that was standing up
there. Where was Archy Beebee, at the time
you took your positioix there ? He was up in the
court room over the market. How long were
you there before Beebee was brought down stairs ?
It was perhaps a half hour. During that half
hour, between the time you first got there, and
the time Beebee was brought down, was your po-
sition the same, /Or was it shifted ? About the
same. Did you see anything of Leggett there ?
Yes, sir, I saw Leggett there. Did Leggett get
there before or after you ? I can't tell that, I
don't know. During the time you were standing
there, the half hour while Beebee was up stairs,
were these persons you have named, yourself and
Leggett, and Tolar and Lutterloh, were you to-
gether, or were you separated ? We were
near together. And near that point ? Yes, sir.
Were you the only persons around that place ?
There was a good many others, How many per-
sons do you think there were under the market
house at the time you first got there ? I should
judge there wasfifty or sixty. Under the market
house ? Yes, sir. And you say you four stood
there pretty near together—shifted your position
as men will shift their positions who are convers-
ing ? Yes, sir. What was the nature of the con-
versation, or did any conversation occur between
you four, while you were standing there ? It
was mostly an ordinary conversation—this sub-
ject was brought up. What subject? The at-
tempt to commit a rape on this young lady.
Well sir, during the time that you were standing
and talking upon that subject, and upon other
subjects, were there any threats of violence made,
by any of that party, or anybody in your hearing?
I heard some one to my rear speak, and he said
the man ought to be killed—he deserved death.
Who was that person ? I can't tell. Was that
assented to by anybody else in the crowd ? Sev-
oral spoke of the matter, some said it is true he
deserved it, but the law ought to take its course,
I remember Nixon and myself were speaking of
it, we both made the same remark, he perhaps
deserved it but not while he was in the hands of
the law. So that remark was made by some one
in the rear, and instead of assenting to it, other
voices, yours amoug the number 6aid—that he
might deserve it, but it was in the hands of the
law, and the law ought to take its course ? Yes.
sir. How was the conversation you have spoken
of, carried on between you and Tolar, and Leg-
get and Lutterloh, in whispers or in an ordinary
tone of voice or in a loud tone ? Every word I
used there was in an ordinary tone of voice, about
as loud as I am talking now. About the others,
Tolar and Leggett and Lutterloh ? If either one
of them whispered, I didn't hear it. Did either
of them whisper to you ? No, sir. Did either
one of them whisper another? Not that I seen,
sir. Were they there in your view all the time?
They were, particularly Tolar and Lutterloh—I
didn't see Mr. Leggett the whole time. Mr.
Powers, was thei-e any agreement, or any com-
bination made between any of these parties at
that time to kill this boy or to do him any harm ?
Thei*e were none on my part, I am certain, and
none on Capt. Tolar's, he hadn't been about the
market house until that evening. You know he
had been out of town ? Yes, sir. For the period
you had spoken of? Yes, sir, because invariably
when he was not absent and in town be came {o
our store and his uncle's store and we were gen-
erally conversing together. How long did you-
say you were there before the negro came down.
About a half lxoui\ Did you see Mrs. Massey
and her daughter comedown the steps ? I did, si r.
How long,, was that before the prisoner Beebee
came down ? A very few minutes. Who ac-
companied them, any one ? Mr. Bond accompa-
nied them to the carriage, if I am not mistaken,
Where was the carriage ? It was in front of the
eastern arch, the main arch. Mr. Bond went
with them to the carriage? Yes, sir. How
long did the carriage remain there, after the la-
dies got into it? It didn't remain long, I could
not tell what length of time exactly, not long
though several gentlemen went up and spoke
to the ladies. Who were they that went up
and spoke to the ladies ? I remember Mr.
Phil. Taylor, and Mr. Robert Mitchell, and
I think an uncle of the young lady, Mr. Pow-
ers, then. Tom Powers? Yes, sir. Any-
body else? Air. Bond was speaking to them.
He accompanied them there? Yes, sir, that is
PROCEEDINGS OF A MILITARY COMMISSION,
all I can remember. Did Capt. Tolar go to the
earriage? If he did, I don't remember it; I
didn't see him. Those were the' only persons
you saw go to the carriage? If I-saw others, I
don't remember. Are yoivany kin to Tom Pow-
ers? No, sir, not that I know of. Are you re-
Sated at all to Miss Elvira Massey ? Noj sir. And
these I understand yens to say were the only per-
sons you saw go to the carriage ? All I can re- ;
member now. Do yoi> know who was driving '
the carriage? I don't remember that, sir. Do
you remember whether it was a white, man or
colored man ? I could not say with any certain-
ty. How long after the carriage drove oft was it
before Beebee was brougkt downstairs? It was
not many minutes. Did you see Beebee and. the
party which had him in charge, at the time they
first came down to the door, upon the lauding of
the stairs of the market house ? Yes, sir. Where
were you standing just at that moment ? I was
standing at Becky's stall, or near it, on the out-
side of her couuter. Were these same parties
that you have named near you mid around you
at that time? I would state there was another
that I didn't mention,, just now, John- W.
Maultsby. So that at the time the boy was
brought down, there was standing in that group,
Ralph Lutterloh, Capt. Tolar, Leggett, John
Maultsby and yourself? Yes, sir. What John
Maultsby? John AY. Maultsby. The man iii
Port Macon? Yes, sir; he made a remark that I
heard at the same time ? What was it ? I heard
him say that he went there fo>r the purpose of
trying to get bail for the boy, and that if Archy
was innocent he ought not to suffer, that if he
was guilty he would drop the matter, and have
nothing to do with him. You say John Maults-
by was standing there/ Yes, sir. At the very
time the boy came down the steps? Yes, sir,
about that time, I don't remember seeing him
right exactly at that time, hut I remember seeing
him after the boy was down, but I know he was
Sn the crowd, for I heard his voice. At the time
the boy was brought to the head ot the stairs,
did you hear any remark made by any person in
the crowd—I want to confine you to the times—
I ask you, now ;vt the time the boy was brought
to the head of the stairs-, and you first saw him,
did you hear anybody in the crowd make any re-
mark ? There were some remarks made to my
rear, "there is the rascal," or something like
that. Did you see anybody get upon that bench :
that was running there in front of Becky Ben's
stall? Not at that time. Did you see John
Maultsby get upon that bench ? No, sir. Did
you hear Maultsby make any remark at the time?
No, sir, I did not. Did you see Maultsby at that
time? I did not. You know him well? I knew
him very well. Did you see him in the crowd after-
wards? Yes, sir. You didn't see him at that time?
No, sir. Was that bench which runs in front of
Becky Ben's stable, in your line of view as you
were looking from the position you were, to the
boy at the head of the stairs? Yes, sir. Direct-
ly iu your line of view ? Yes, sir. I ask you if
anybody at that time jumped upon that bench
and made any remark at all ? I seen no one jump
©n there. There was some standing on there.
Did any person who was standing on that bench
make any remark at the time? No, sir. Was
John Maultsby standing on that bench at that
time? I don't know "as he was—I didn't see
him—it was in my line and I would have noticed
him, I was- well acquainted with him. And yew
did not see- him standing there? No, sir. Do-
you remember anybody that you did see standing
there upon that bench ? I could not call any
names that were standing there. Then they
®twVui down the steps; did anything occur that
attracted your attention in any way between
time you first saw Beebee and his reaching the
floor of the market house ? No, sir. Nothing
occurred at all ? No, sir. Who were with him
at that time, of the party who had him in charge ?
Mr. Wemyss had him by tlie thumb—with a
string around his thumb, and Mr. Faircloth had
hold of the other arm, and Mr, Hardie, if I re-
member right, was in front of him. And so tliey
came down the stairs ? Yes, sir. Did anything
occur to attract your attention before he got to>
the outside of the market house ? No, sir. Did
you keep that position until the boy got outside
of the market house ? Nearly that same position
until he got out of the arch. Which arch do you
mean ? The eastern arch. The main eastern
arch? Yes, sir. Did you shilt your position
then? Yes, sir. Where did you; move then?
I moved in front of the arch. Who moved out
with you? Capt. Tolar moved out there, and
Mr. Lutterloh, send Mr. Leggett, and Sam Phillips
was standing there. Where was be standing ?
Outside, cm the pavement. He didn't move out
with you ? No, sir. So the party that moved
out with you were yourself, Mr. Lutterloh, Capt.
Tolar and Leggett ? Yes, sir. At the time you
got out on the pavement, where was Beebee and
the party having him in charge ? When I first
noticed him after coming out of the-arch, he was
near the place where Ire was shot. When yon.
went out on the pavememt where did you take
positions, • yours-edf and the party ? Capt. Tolar
and myself were about the center ©f the pave-
ment. Were yon near the north or center of the
southern portion of the main areh, or where were
you? Near the center. Nearly opposite tlie
center of the main arch? Yes-, sir. That was
your position ? Yes, sir. And Tolar, you say,
was closely by you? Yes, sw„ Did you notice
Lutterlohaasd Leggett there? I noticed them
there. They were- about there, too? Yes, sir.
What occurred after you there? The first
thing that attracted my attention was the attempt'
of Beebee to get away. Where was that made, at
about the point he was killed ? Near that point,,
not quite. Near about the point where he was kill-
ed? Almost there. Just describe the attempt if you
please, that he made to get away. He attempted
to jerk away from the officers, as I thought; he-
was pulled down, and what attracted my atten-
tion was somebody spoke a-t the tisme in the
! crowd, I could not tell who at was; they believed
that the negroes would attempt to rescue him ; I
noticed several bad ehoraeSera there amongst
them, they didn't appear to- fake any part in it
however. That remark was made iu the crowd
by some one? Yes, sir. Yoradon't know who?
No-,, sir. You said the negro had SHink down
then ? Yes, sir. How long was it before he got
up again ? Not long; it was not aminssute. When
he got up, Mr. Powers, who were with him, who
of the guard party did you notice with him ? The-
same party was with Mm, Mr. Wemyss and Fair-
doth, and Hardie; I think Mr. Hwdie had cliang-
ed his position some. Where- was he then / I
think he was to his rear, on one hand or the otb-
er, with his hand on Mm ? Could you tell which
hand? No, sir. Wemyss was on one side, and
Faircloth on the other, and yon think Hardie was
to his rear, with his hand oh him? Yes, sir.
How long was it after he got up before he was
shot ? A very short space of time, sir. Almost
m soon as he got up, he was shot. Yes, sir. Do
you know who shot him? I could not swear
positively who shot him, the crowd was so great.
What was your impression ?
Counsel for the prosecution objected to the?
question. (
What did you- see of the shooting ? There was&
CONVENED AT KALEIGH, SOUTH CAKOLIJx'A.
171
a crowd of persons between Capt. Tolar and
myself and Beebee, and I looked over ; wbat at-
tracted my attention was his struggle; and 1 kept
my eyes on hint, and was looking at him the
whole time, and I seen a pistol barrel lowered
clown. Where was that? It was to the left,
from the outside of the pavement, to my left.
Your left and front, or left and rear? Deft and
front. Dicl you see the hand that held it ? Not
cit the time it was fired. Was that the pistol
which was fired/ Yes, sir, it was the same.-
Where you saw the pistol and saw the smoke,
how far was that from where you were
standing ? I thought at first it was seven feet,
but since then I have been at the market house,
and I find it was about eleven feet, I stepped it.
From where j*ou were? Yes, sir. Where was
Capt. Tolar at that moment? Capt. Tolar was
by my side, sir. Close by your side ? As close
as two persons could stand in a crowd. Did
Capt. Tolar shoot that pistol ? No, sir. Was
there more than one pistol sbet that day ? There
was but one pistol fired. Are you certain, sir, it
was not Capt. Tolar that fired ? I am certain as
I could possibly be; I don't see how it was pos-
sible for him to have fired the pistol without
my seeing him. Have you any doubt about the
matter, Mr. Powers? I have no doubt but what
It was somebody else, who fired it. How far
was that pistol that was fired there' off from the
pavement ? The barrel was near the man's head.
How far was it from the head of the man Beebee,
the pistol barrel ? I suppose may be it was about
two feet. Did you say you were looking there
at the time; you saw the barrel, and heard
the report? Yes, sir. Yon saw the flash?
Yes, sir. And you saw the smoke ? Yes, sir.
And it was that pistol-shot that killed the maa
Archy Beebee ? I have no doubt of that.
And that was not Capt. Tolar ? No, sir. Did
Capt. Tolar have any pistol out on that oeca-
sion ? No, sir. Did he have one upon him ?
Yes, sir, he habitually wore a pistol. Do you
know he had it that day ? Yes, sir. Did you
■see it that day? Ye®, sir, the circumstance
under which I saw it, after the pistol was fired
the crowd rushed back, Dr. McDuffie was sent
for, I think, and they hollowed for the crowd
to stand back so that the man could get air;,
and the crowd knocked against ns, I stepped;
back then; I think I stepped back before Capt.
Tolar did; they knocked his shawl off, and I
seen the pistol on him, m a holster. On which
side ? It was to the near of .him, I can't re-
member which side. Secured by a belt ? Yes,
sir. And when the crowd pressed back, you
saw Tolar's pistol in the holster? Yes, sir.
How long was that after fee firing ffi-ccurred ?
A very short space of time. Did you see any-
body near the place where you saw the flash
and the smoke, have a pistol ? There were
two or thee pistols drawn im the crowd, per-
-haps as many as four of them, and I was ex-
■cited at the time, as soon as the pistol fired;
I didn't know what it was, I was afraid Sheriff
Hardie had been killed, that was what fright- i
ened me; Mr. Phillips—What Phillips ? Sain.:
"Where was he standing ? To the left or the
•outside of the pavement. How far was he
from the place where you saw the pistol, and
■saw the smoke, and saw the flash ? Directly
after it was done I seen him step back on a
line with me nearly. How .long was it after
he had stepped back that you saw him have a
pistol,? He had it in his hands as he stepped
back, and made a remark to me, says he "Pow-
ers, you had better examine and see if my
pistol is loaded," says I "'all right," and he did
not show it t® me. What did he do with the
pistol ? He put it behind him when he made
that remarkto me. Did he make any motion
with the pistol? He had it in both hands,
says he "Powers, you had better see if my
pistol is loaded." And yon replied to him "all
right?I started to look at it. What did I
understand you to do when you made your re-
mark "all right," did you make any motion to-
wards taking the pistol ? I turned around to
him to look at the pistol. What did he do with
it ? He put it behind him immediately. Un-
der his coat or outside ? Under his coat, sir.
You made that remark, turned around to him
as if to take it, and he put it in. his coat behind
him? Yes, sir, with both hands. Did die
make any other effort to show it to you, ■ either
at that time or any other time? No, sir,
some time afterwards, it was a short time, but
under these circumstances it would be some
time, a minute would be a long time, he offer-
ed it to some one else. How long a time was
that ? I suppose a minute afterwards or more.
Who was that other person, do yon know ? I
can't remember; I don't remember who it was
for I didn't pay any attention to it; I heard
hiin make the remark "it was a large pistol."
Did you see anything of Capt. Tolar after the
firing ©f the pistol ? Yes, sir. What became
of him ? Hie steed about the market there a
little while. Where did he go ? I don't re-
member where be went then. What became
of you, sii;? I came on up town. say
you didn't notice whether the other person ex-
amined the pistol, when he offered to show it
the second time ? No, sir, if they did I didn't
see it; I was summoned as a witness very hur-
riedly and I could remember nothing about
these details; but since then I went to the
market house, and. just pictured to myself as
every person eteod that I could remember; I
was advised togo the market house, and just
picture to my teif as every person stood, so
that 1 --could give in my evidence correctly;
then I remembered while I was standing there
a number of persons that I could not remem-
ber that day. Mr. Powers, have you been ar-
rested about this matter ? I received a sum-
nions to appear as a witness; I was told, how-
ever, I would be arrested; when I got to Wil-
mington I then repvxted to General Avery's'
headquarters, and General Avery turned me
over to the offices: the day. So you were
subpoenaed us a, witness and were arrested as
you got here ? Yes, sir, I knew I was going
to be arrested in Wilmington, I then reported
in Raleigkand stayed there two days, and have
been in Pert Macon since.
Cross Examination, by the Counsel for the
prosecution.
What is your father's name? <T. W. Powers.
When was the first time that you had heard of
the attempt of Archy Beebee to ravish Miss Mas-
sey ? I heard it the evening that he attempted it.
You heard it on the Sunday evening before he was
killed? Yes, sir. What time "in the evening?
It was late in the evening. After tea ? It was
late in the afternoon I mean. Was it tea time, or
1
I i»+
PROCEEDINGS OP A MILITARY COMMISSION,
after? About early tea time. "Who told you of
it at that time ? I don't remember sir, so many
parties were speaking of it. You heard a great
deal of it that evening ? Yes, sir. From a great
many quarters ? Yes, sir. Can't you remember
any one who mentioned it to you? I can't bring
to my mind any particular person. You have
tried to refresh your memory? Yes, sir. Ac-
cording to the same rules of memory, and it is an
act of memory, by picturing to yourself where
you were at the time that this information was
given to you, I should think you could tell. I
think Sam Hall spoke to me on that subject that
afternoon. Any one else that you can recollect?
Joseph Avery. The way I come to think of it
now, I was sitting in front of the hotel, and I
heard it, and I remember now that Hall and Avery
were talking about it. You heard them speaking
of it ? Yes, sir. Can you recall any other per-
sons, whether they were speaking to you or not,
that was the first you had herd of it, you heard
Sam Hall and Joseph Avery ? I may have heard
others speaking of it before, but I don't recollect
now. Did they speak to you, either one of them ?
The crowd was talking about it. Were they all
in the same crowd? Yes, sir. Who else was
present beside yourself and Mr. Avery and Mr.
Hall? I think Mr. Reuben Jones was there. A
large crowd there ? Yes, sir, usually is, every
Sunday evening, a large crowd in front of the
hotel. Do you know John Jackson? You mean
John D. Jackson. A man that has a still across
the river ? I don't remember seeing him. You
say there was a considerable crowd there? A
dozen or so of men. Did you and Sam Hall make
any agreement, that you would go d<*wn to the
market house to the trial the next day ? No, sir.
You had no agreement then that t'ou would at-
tend ? I didn't intend to go to the trial at all.
I had been busy that day at the store. I am talk-
ing about that Sunday evening, when it was first
mentioned? No, sir, there was no agreement:
You had nothing to do with the capture of Archy
Beebee ? No, sir. Who did form the posse that
went for him ? I think Faircloth was one of the
party; he was the one that spoke io me about the
details of the capture. You were not along?
No, sir. You knew nothing about that; and you
made no agreement to go down the next day ?
No, sir, none in the. world. Did you have a weapon
on that Sunday evening ? No, sir, I never wear
a weapon, unless I am on guard. In summer and
winter, I wear an open coat, like the one I wear
now. Did you hear persons, after this first time,
speak of this affair of Beebee, from any quarter ?
It was universally talked of, all over town. And
feelings of indignation expressed ? Yes, sir. You
heard no threats from any quarter, and you posi-
tively swear that you didn't know of any agree-
ment, understanding or combination, upon the
part of any men to punish the negro ? I do posi-
tively swear to that. You never heard any such a
thing, and you never anticipated any such a thing,
when you went to the market that day ? No, sir.
Not only you didn't know of such an agreement,
but you didn't even expect it to take place ? I
didn't expect it to take place ? What time of
day did you leave your place of business to go down
to the market house ? Between three and four.
Is your father in the same business with you ?
Yes, sir, he stays with me. You keep the same
store ? Yes, sir. Is he a partner in the concern?
No, sir. Is the store yours; or his? Mine.
Didn't your father request you not to go to the
market house that day ? - He said he would not
go up there to the trial, thre would be a big crowd,
and he was afraid there would be some difficulty.
I told him I was just going down to hear the
trial. Didn't he urge you not to go ? I don't re-
member his urging me. He advised you to keep
away ? He made a remark at the time,
he believed there would be an attempt by
the blacks to take that boy away from
the officers. He didn't want you to be in any
row ? He was afraid there would be a disturbance
between the races. He didn't want you to go,
but you insisted ? I told him I would go down,
and he said " all right." Did you stop for Lut-
terloh ? We were standing together out on the
pavement, the stores join. How did you get to-
gether ? I proposed to Lutterloh to take a walk
down, and hear the trial. Was that after the
conversation with your father, or beiore ? We
had the conversation after I asked Ralph. Did
you see any unusual stir in the street, going
down Hay street ? No, sir. Not more of a crowd
than usual ? Only at the Market House. Down
the street it was just as quiet as usual ? Yes, sir.
Nothing to excite apprehension at all ? No, sir.
When you got to the market you saw Capt. Tolar
before you went in ? Yes, sir. Standing near
Hinsdale's corner ? Yes, sir. Were you coming
down on the same side of the way as Hinsdales' ?
No, sir Did you cross over towards Hinsdales'?
Yes, sir, he was coming towards the market from
one side, and myself from the other, and we met.
How far were you from the arch, when you came
together—the western arch? I suppose about
twenty feet. Where was Lutterloh ? He was at
the edge of the Market, I think. Did you stop
for Capt. Tolar to catch up with you? We just
come together, and merely stopped long enough
shake hands. Lutterloh went in before you then ?
I think he went under the western arch, a little
before me and Capt. Tolar. Wasn't Tolar inside
of the market house when Lutterloh went in
there ? I won't be positive about Lutterloh; I
know we got there together. Didn't Lutterloh
shake hands with Capt Tolar? I don't think he
did. Don't he know him? He knows him, but
is not very well acquainted with him. You don't
remember Lutterloh shaking hands with him?
1 know their acquaintance is merely passing,
Tolar and myself have been very intimate. Do
you remember exactly what did become of Lut-
terloh, whether he went in before you did, or
whether he was with you, when you and Capt
Tolar went in ? He was going down on the north
side of the street, with me, and I left him to meet
Capt. Tolar. I understood you to say it was right
in your way. I said he came from one side, and
I from the other, and we met about the middle
of the street, And then Lutterloh went on
straight ahead, the way he was going ? Yes, sir.
You did'nt see him again until he got to the mar-
ket house ? No, sir, I didn't see him go into the
market house. And you don't know when he
did go in ? No, sir. How long had Capt. Tolar
been away, sir, before that day, sir. I could not
tell the exact number of days, I think it was over
a week, I know I hadn't seen him in eight or
nine days. You think he had been away to Bla-
den, or one of those adjoining counties ; how did
you know that ? He told me. He told you he
had been away for eight or nine days ? I knew
at the time he did go, or rather the next day.
How did you find that out ? 1'Ie spoke to me on
CONVENED AT RALEIGH, NORTH CAROLINA.
173
the subject. He told you he was going ? I asked
him, when we shook hands, and he told me, he
had been down in Bladen. You swear he had
been down in Bladen ? I swear he told me he had
been down in Bladen. You were not down in
Bladen with him ? Of course I can't swear posi-
tive whether he was there or not. And therefore
you ought not to have attempted to swear at all;
you don't know anything about it, but you un-
dertake to make Capt. Tolar's statement the ba-
sis of a statement you make yourself? Yes, sir.
You swear he was down there for nine or ten
days? I know I hadn't see him; I don't know
whether he was away or not; I knew he hadn't
come into town, because I would have been cer-
tain to have seen him, for he invariably stopped
at our store. He habitually stopped at your
store when he came down, and you hadn't seen
him there for eight or nine days, and that is the
ground upon which you concluded that he was
away? Yes, sir. You met him at the door of
the market house and went into together ? I
didn't meet him at the door, where we come to-
gether, it was about twenty or thirty feet from
the market house, almost in the center. You
moved right on down and went in together?
Yes, sir. When you got in did you find Mr. Leg-
gett ? I seen Leggett there after we had been in
a while. How long had you been in before you
saw him? No time scarcely at all. How long
had you been in before you saw Lutterloh ? A
very short space of time. As we went in Capt.
Tolar and myself were talking together in an or-
dinary conversation, and we walked together and
stood there near Becky Ben's- stall, and then I
turned around and I seen Lutterloh standing by
me. How did Leggett come up ? He was in the
crowd, I don't know which arch he come in at.
You only know that you found him near you and
Lutterloh ? He may have come in behind Mr.
Tolar and me. Did you see any weapon on Capt.
Tolar at that time ? Notat that time. Youdidn't
know that he had any then ? I didn't know.
You said he habitually carries it ? He does, but I
didn't know he had one at that time. The only
time you saw it was in the holster, after the
shouting? Yes, sir. How did you know it was
a pistol"? I can see a pistol in the holster. What
was the length of the holster ? I could not say.
You have seen it frequently? No, sir. Could as
large a pistol as that have got into the holster ?
(Exhibiting the pistol introduced in the evidence
of Samuel A. Phillips, as that which Phillips
had in his possession on the day of the shooting.)
Somewhere about that size, I could not say it was
exactly as large as that, I could not see the stock
in the holster. Do you think this pistol could
have got in the holster you saw ? I could not say;
some of those pistols look alike, and the same
holster won't fit them. I could not tell wheth-
er it*was a large army size, or a large navy size.
Y"ou never saw the pistol at all ? 1 never had it
in iny hands. Did you never see it in his hands
out of the holster? No,sir. You never saw the
pistol at all, only a portion of it—you just saw he
had one, and you saw the stock? Yes, sir. You
don't know what sort of a pistol it was, how
large? I don't know whether it was a large army
or navy size; I thought it was one of the two.
How did you get that opinion, from the s'ze of the
holster? Yes, sir. It was a large sized pistol?
Tolerably large sized. What size do you call this
one ? I am not familiarly acquainted with pistols,
but I know there is a difference in the size; I have
seen the two at different times at arsenal, and have
been told there was a difference in the size. It^you
saw one in a man's hand, you could not tell wheth-
er it was a army or navy pistol at a glance ?
Hardly, at a glance Can yon tell whether th's is
an army or navy ? I could not tell positively.
Could you tell if you saw one by itself? If I re-
member right, the navy pistol is smaller than the
larsre army pistol. That is so, sir, but I want to
know whether just seeing the pistol, as you say,
and not seeing the two sizes together, could you
tell one from the other without comparing them ?
As I told you before, I am very little acquainted
with pistols, I never carry one at all. You could
not form any idea whether Capt, Tolar's pistol was
an army or a navy size/ There is a pistol at home
that I have never had on in my life, except when I
am on guard, and I know it is a navy size; and it
is about the size of that pistol. You think then a
navy pistol is about this size? Yes, sir. When
you were standing in the market house with Capt.
Tolar, Lutte'loh and Leggett, you saw this lady
and her mother, Miss Massey and her mother come
down the steps, did you ? I did. Did you see
John Maultsby about the time they came down the
steps, or was it after that you saw John Maultsby?
I seen John Maultsby in the crowd, I don't re-
member tne exact time; I overheard him make
that remark. Was that before the lad y came down
stairs? I can't remember exactly. You can't re-
member whether it was before the lady came down
or afterwards ? He made a remark about the man
but I can't tell exactly the tinie. What were
those remarks you heard Mr.. Maultsby make, and
who was he talking to ? He was talking to the
crowd; he appeared a little excited; the negro
boy was a favorite of his; he had him employed, I
think, a good deal, says he "if Archy is innocent
I don't want him punished, want to see him bailed
or something, but if he is guilry, I will have noth-
ing more to do with him." What did you say
about bailing? He said he wanted to go his bail,
or to get bail for him. Did he tell you how it was
that an innocent man required bail? No. sir. If
he was innocent he was going his bail ? He said if
he Avas innocent he was going to stand bv him, or
go his bail, or do something for him. Didn't he
use the expression "go bail?" He said he went
there for that purpose, to stand his bail. But still
he said if the court found him guilty he would not
stand his bail; he would have nothing more to do
with him ? Yes, sir, I remember that part of it,
that he went there first to stand his bail; that is
the way I wanted my language to go
down. I want it to go down as you
said it, and not as yon meant. I understand you
to say now, that Mr. Maultsby said, in that conver-
sation, that this negro, if he was innocent, he was
his friend, and was going to stand his bail? I
mean in this way. He said he went there for the
purpose of giving bail or trying to get bail. Then
he said if Archy was innocent he was for him. I
can't remember the exact words. But the impres-
sion left on your mind was he went there to stand
his bail, if he never did it ? That was my impres-
sion. You can't say exactly when you heard
Maultsby making these remarks about the bail-
ing, whether it was before, or after the ladies
camedown? No, I can't remember exactly. Af-
ter the ladies came down, didn't you hear jtfaults-
by say that he had found out that the court had
decided against him up stairs ? I saw him ask Mr.
Bond was Archy guiltv, or not guilty. Didn't he
ask him that after you had heard him make this
other statement? I could not say positively.
You heard him either before or afterwards ask Mr,
Bond if Archy was guilty? Yes, sir. Did jou
hear what Rond told him in reply ? Mr. Bond
told him that he was guilty I think. Where
were they standing, when .you heard that
conversation ? They . Avere standing near
Becky's stall. In the market house? Yes, sir.
Was it before Bond had been to the carriage AA'ith
the ladies, or after he came back ? If I rcmem-
174
PROCEEDINGS OP A JiTLlTAlir COMMISSION,
ber right, it was before the ladies came down, so
I can't say for certain. Do you remember now
exactly where they were standing ? They were
■standing near Becky's stall. Now do you remem-
ber whether it was before or alter the carriage
had driven off'? I can't remember whether the
carriage was driven away or not. There were so
many circumstances that I can't remember the
exact time. I know it is difficult, but I thought
your going back to the place—that perhaps you
might recollect all the events—you can't recol-
lect whether it was immediately before the car-
riage drove off or afterwards ? I can't say. How
often did you see Bond that day.; perhaps we can
get at it in that way ? I seen Bond several times.
While you were there the twenty minutes before
Arcliy came down, did any one come down the
steps, during that time, before the ladies came
down to go to the carriage, did Mr. Bond come
before them. I think I seen Mr. Bond come
down for some purpose or other^ he was cousta-,
ble, and had to come down the steps for witnesses
or something like that. You think you saw him
comejdown ? I think I did. Did you see anybody
else? I don't remember seeing anybody else,
only seeing a policeman come to the door. Do
you thinklt was at that time, when Mr. Bond
came down, that Maultsby asked the question ?
I could not say, sir. The next you saw come
down the steps was this lady and her mother,
and Bond was with them then? Yes, sir. Did
he come out of the door with them ? I think he
came out before them. Was he ou the steps out-
side of the door before the ladies came down, or
did he seem to come trom the room with them ?
I could not say positively, I knew he was in com-
pany with them. When these ladies came
down, Mr. Bond went with them to the carriage?
Yes, sir. You are certain of that? Yes, sir.
They didn't stop in the crowd ? No, sir. It
could not have been at that time that Maultsby
spoke to him ? No, sir. Did you see Mr. Bond
when he came back ? I didn't notice him. Did
you notice whether he came back from the carri-
age at all, and went up stairs again? 1 didn't
notice it. Did you notice whether he went up
in the Court from the carriage at all ? I didn't
notice ft at all; there were so many there I could
not tell. You saw certain persons go to the car-
riage and speak to the ladies—was Bond stand-
ing there at the time these persons went there ?
"When Bob Mitchell was there I think Bond was
standing there. Did you see Tom Powers there ?
I saw him go to the carriage. Did you see him
have any conversation with the ladies ? He said
something to them, I sould not say what. What
became of him after he said this something; did
you see him where he went? He came back to
the market. Had you seen him in the market
house before that day ? Tom Powers was un-
der the market house. When you first got
there? I could not say that. Had you seen him
there before the ladies came down ? I could not
say positively. Did you see wherp he joined the
ladies, whether they called him to them or wheth-
er he joined them and walked out to the caariage
with thein ? I think he walked out to the carri-
age behind them. And they had some conversa-
tion and he came back ? Yes, sir. You said the
carriage was there about five minutes after the
ladies came down ? A very short time, I could
not say what time exactly. Were you looking at
the carriage while the gentlemen were coming
up? Yes, sir. Didn't Capt. Tolar go out and
speak to the ladies ? If he did, I didn't see him.
You swear positively that he did not. I don't
think he could have left my side at that time.
Do you swear positively he did not do it to the
best of your knowledge and belief and give your
reasons? To the best of my belief I don't think
he went there. Ypu think you saw him pretty
'much all the time the carriage was there, duriug
that five minutes ? He was near me after and be-
fore, I didn't keep my eyes on Capt. Tolar the
whole time. You saw him shortly before and
shortly afterwards? Yes, sir. And therefore
you conclude that he was in the same place all the
time? Yes, sir. But you don't swear positively
he did not go to the carriage at all, you didn't
see him? No, sir, to the best of my belief I
would swear he didu't go. When Tom Powers
came back where did he go? Underneath the
market house. Did you see where he stood? I
never noticed, I saw he was weeping, him and
Mr. Mitchell were uncles of the girl. Mr Pow-
ers was weeping as he came back ? Yes, sir, and
before. He seemed to lie a good deal overcome?
Yes, sir, he was completely overcome. Did you
see Monk about that time? Yes, sir. Did you
see him have anything to say to Mr. Powers ? I
didn't see Monk have any conversation with Mr.
Powers at all. Did you see them pretty near to-
getlier? If they were I didn't notice it. Did
you notice Henry Sykes sitting down by Powers ?
I never saw Henry Sykes the whole day. Did yon
see David Oliphant there that day ? No, sir. The
negro started to come down stairs five minutes af-
ter the carriage drove off? About that time. Now,
all this time, trom the first time you got there un-
til this moment now that I am \ speaking of when
the negro came down,or when he appeared at the
head of the stairs, you and Capt. Tolar and Ralph
Lutterloh had been standing together? Yes, sir,
so far as Capt. Tolar and myself and Lutterloh were
concerned, we were together, I am certain, all the
time, and Leggett, he was very near us in the mar-
ket. Was he standing in the same group ? y es,
sir. Did Maultsby come up and have anything to
say to you? No, sir. When the question was
asked just now if after the negro Archy came out
of the door, and was upon the steps, you saw any
one jump up on Becky Ben's bench, you said not
at that time, did you see them jump up there at
any time? I never seen any one jump up on it.
Did you see any one on it? There were several
on it. How long had they been standing there be-
forethenegro came down? I could not tell; I
noticed some one on the bench about the time he
was brought down. And you can't name a single
one of them ? I can't, sir, for my eyes were on the
negro If Mau.tsby had been there you think you
could have seen him? Yes, sir. But you can't
name a single other soul you saw—you saw there
—they, were in your line of vision? Yes, sir.
The crowd was mostly composed of your acquain-
tances and neighbors ? I could not say that; there
are a great many people in town I don't know.
Do you think there were strangers on that bench ?
There might have been some of them that I was
acquainted with—the whole of the bench was mot
full. But what I wanted to know is this, if you
did not recognize any body there ? I did not.
Why is it, then, you think you would have known
Maultsby ? I think if he had seen me he would
have spoken to me. And because he did not speak
to you, you think he was not on the bench ? I
don't think he was. Now, as this negro came
down stairs, I understand you did hear some excla-
mations behind you, of some sort, "there comes
the rascal," or something to that amount ? Yes,
sir. How many voices did you hear that from?
Perhaps a couple, or it might have been the same
one. Did you hear any body say "rally boys ? "
No, sir, I never heard that expression. Did you
hearmny body say here lie comes? Not that 1 re-
member, it may have been used ; I think I heard
the words used "here he,is " but I never paid any
attention to it. But you heard some exclamation
CONVENED AT HALETGtf, NOttTII CATl'OTJYA. 17;>
of that sort, indcating that the negro was about to
come down, or was there? Yes, sir. Ysu can't
pretend'to use the exact woids, simply "here
comes the rascal," or "there he comes," ur "here
he is," or something of that sort? My eyes were
on the police and the prisoner. And your atten-
tion was absorbed for the time being? Yes, sir.
When this lady passed through the crowd just be-
fore that, how many do you suppose were in the
Crowd; you say there were about fifty in the
market bouse when you got there, how mauy
do you think there were there when
she came down stairs? Fifty or sixty I would
estimate the number, there was a larger crowd
outside. On the east front of the market house ?
Yes, sir, east and south east. Around that cor-
ner? Yes, sir. There was a larger crowd out-
side of the market house, when the ladies came
down, than there was inside of the market house?
Yes, sir. Did the crowd grow less or greater
from the time you first went to the market house,
to the time he was killed? It was larger about
the time he was killed, there were a great many
colored people there then. There were more
colored people you think than white ? There
was as many I should think. Was that the case,
when you first got to the market house ? I didn't
notice then, outside particularly. Up to the time
that Archy came down the steps, had you seen
anybody with any weapon that day ? No, sir,
I dont think I seen any. Had yon seen no one in
that crowd with a belt, that looked as if he had
a weapon, attached to it—no knife ? I seen
Monk with a knife—I seen no belt, YVhat was
Monk doing with a knife ? He said if he was al-
lowed lie would fix him, or something to that
amount. Who was he talking to ? Nixon, as
soon as Nixon took hold of him he stopped.
Was that before the man came down stairs ? No
sir. I am talking about before the negro came
down stairs, and you were standing underneath.
No, sir I never seen any knife, And you never
saw any weapon in the hands of any one, until
after he cunie down ? No, sir. See Tom Powers
have a knife? No, sir. You didn't see what be-
came of Tom Powers, after he came from the car-
riage? I didn't, sir. Just before tliey were
bringing the man down stairs you say you heard
some voices behind you discussing the question,
and some said he ought to be punished, and some
men in the crowd said lie deserved death, without
a trial—but some of them said what ? I said he
may deserve death but while he was in the hands
of the law it ought to take its course, and Jim
Nixon he agreed with me, or rather spoke at the
same time, whether he noticed my remark or not
I could not say, Who was that used the other
expression ? I can't tell, it was in my rear.
Did you turn around and speak back to them, to
say you differed with them, in the opinion ? I ad-
dressed my conversation more to tlio crowd.
Was Jim Nixon near you at that time ? Y'es, sir,
because when lie commenced talking I knew liis
voice, and I turned .back. Then you did turn
hack towards where the voice came from ? Yes,
sir, but these other persons was in the crowd, and
I did not see him. Did you recognize the first
voice you heard ? No, sir. Could you tell whose
it was; didn't you think it was Sam Phillips ?
No, sir, I could not swear positively. Didn't you
hear anybody say like that man that first spoke,
was not there a difference of opinion expressed,
or not, some saying one way and some another?
Perhaps there was some who agreed with the man
who spoke first—I didn't pay any attention.
And you only heard yourself and Nixon reply to
this man ? Yes, sir. You know Tom Powers
don't you? I know him very well. You say
there is no relationship! between you and him?
Not that I know of. You say Hardie came
down in front of the negro? Yes, sir. lrou
are certain about that? I am pretty certain
about that ? Did he come out of the door first,
and get in front, or did he get in front of them
after they had all got outside of the door ? I no-
ticed him in front, as he was coming out of the
door. Didn't you see Hardie come out and shut
the door, and walk down, two or three steps, and
look around to see if everything was quiet? I
couldn't say positive, sir. But you recollect see-
ing Hardie when he was coming.down, in front of
the prisoner, and Wemj'ss was upon his right
hand, and Faircloth on his left? Yes, sir. Were
there any other police there beside Wemyssand
Faircloth and Hardie ? I could not say positive;
I noticed Faircloth, I know him very well. You
say nothing was done at all to the prisoner until
he" came down stairs ? No, sir. And the only
expression you heard was the one behind you?
Yes, sir, "there comes the rascal." Did you
hear that when he was on the steps ? I could not
say positive. You saw no assault made on him
011 the steps at.all? No, sir. How many steps
does it take to go from the foot of the steps to
the arch where lie turned out of ? To the front
of the arch ? No, where did he go out of the
arch, close to the side on. liis right? Yes, sir, I
suppose it was about six or seven steps. During
the time he was passing the six or seven steps,
were you standing near Becky Ben's stall? Yes,
sir. Was Tolar there ? Yes, sir. You are cer-
fain? Y'es, sir. You saw him then and there ?
Yes, sir. You saw Lutterloh then and there?
Yes, sir. AndLeggett? I seen Leggctt about
that time, I wont be positive whether I saw him
at that moment or not. Did.! ousee John Maults-
by at that time ? No, sir. Did you see Tom
Powers at that time ? Not at that time. Did
you see Tom Powers between the time the negro
got to the foot of the steps, and the time
the negro got to the arch, and turned out?
I seeu Tom Powers as he got in the arch. You
saw Tom Powers right at the arch by him ? Yes,
sir. Didn't you see Tom Poweis grab at him?
He made a motion at him. YVitli which hand
sir? I don't remember sir. He said "give liim
to me, be is my prisoner" and tlie Sheriff said
' go away Tom,' and Tom desisted. Did you see
Monk then? Yes, sir. Did you see the Sheriff
catch Tom Powers, by his wrist, and take him,
and push him away, and force him back? No,
sir. Did you see any knife in Mr. Power's hand
at that time ? No, sir. Did you see Tom Powers
have any weapon that day, at any time? I did
not sir. Did you see him have any pistol at that
time? No, sir. You can't say which hand lie
used to grab him with ? No, sir. Did he grasp
at the prisoner just as he got into the arch ? Yes,
sir. Vv as Powers outside on the pavemeilt ? He
was about the arch. Suppose the arch to he,
here, on my right, wasn't he standing with his
back right against the pillar ? I can't say, I
think though, probably he was inside. Did you
see him make this grab? Yes, sir. And .you
heard Sheriff Hardie tell him to desist? Yes,
sir. Didn't you hear him say "by God he is
mine," didn't you hear strong expressions used
by Tom Powers ? I don't remember hearing any
strong expressions. Didn't you hear Sheriff Har-
die make use of a strong expression? No sir.
Do you mean the Sheriff said "go way Tom," in
a gentle tone ? He always speaks emphatically,
on all occasions, he speaks plainly. He is a very
decided man. Was that the whefie conversation
you heard during that time ? If anything liap-
peued before that I didn't know it. And you say
that man immediately desisted hen Sheriff Har-
die spoke ? He stepped back; Where did he
176
PROCEEDINGS OP A MILITARY COMMISSION,
step to ? He stepped back out of the way, of
the*Sheriff. Where did stepping back throw
him from the inside or outside ? Inside.. The
Sheriff had not gone outside of the arch ? No,
sir, he was about under Lbe arch. Don't you
think the Sheriff'had turned outside of the arch?
I don't think he had. So he had to turn back to
interrupt this man who was interrupting the pris-
oner? I don't think the Sheriff had got outside.
Do you think he turned towards the man, Tom
Powers, who was trying to grasp the prisoner ?
He sort of turned towards him. Then was
Sheriff Hardie in front of Archy or behind him,
when he turned towards Tom Powers at that
time ? Perhaps he may have turned towards him.
Sheriff Hardie stood still until Archy passed in
front of him, and there Sheriff Hardie kept be-
hind liira to protect him in the rear. 1 don't re-
member seeing Sheriff Hardie in the rear, at that
time; don't you remember he came down in front
of him, and when this assault wa6 made on him
he jerked back to stop the man who made the
assault, and from that time he was in his rear;
don't you remember that? 1 could not say dis-
tinctly, I just remember his telling the crowd to
stand back a little and let the man alone. When
did he say that ? Just as he got outside of the
arch? You say Tom Powers desisted from ma-
king this assault after the Sheriff spoke to him ?
Yes, sir. You didn't see him take hold of his
wrist? No, sir. You didn't see the Sheriff grab
as if he was grabbing at anything ? No, sir.
But you heard the Sheriff say, in emphatic tone,
simply " Tom, go away from here and let him
alone ?" To the best of my belief that is all.
And Tom immediately desisted and stepped
back ? Yes, sir. You didn't see anything of
Monk at that time ? I think it was about that
time I saw Monk with a knife. Had the pris-
oner got outside of the market house betore you
saw Monk with a knife ? No, sir. The prisoner
was still in the market house between the foot of
the steps and the arch ? Yes, sir. And you saw
Monk with a knife, was that about the time you
6aw Powers grabbing at him ? It was not far from
that time. Was it the same movement or not ?
No, sir. Was it a moment before or after? I
can't remember about that. The things are in
very close association in your mind ? Tolerably
close. What was Monk doing with that knife ?
WhenI seen him he had it in his hand ; he
said if he had the fellow in his power he
would fix him. He was standing right still
was he ? He was there standing still or chang-
ing his position, he was not rearing. He was
perfectly quiet? I don't say he was perfect-
ly quiet. But he was not trying to get
at him? No, sir. He was not pressingjon him ?
No, sir. How was he holding the knile? I can't
say. I want to know if he had it in his grasp ?
I can't say, he had it in his hand though. Was
it an open knife? Yes, sir. What sort of a
knife? A common knife, a common pocket
knife. What do you call a common knife ? The
blade was about three inches. Did you see any
more of Tom Powers after that; after he desisted
and the sheriff told him to stop ? I may have
seen him afterwards, but I could not say posi-
five. You don't know what became of him ? No,
sir. You moved on the pavement then ? Yes,
sir. Directly after the conversation between
Hardie and Tom Powers ? 1 moved out directiy
alter the sheriff took the negro out. This hap-
pened just before Archy got to the arch? Yes,
sir. And just after the sheriff got in the arch, he
spoke to the people? Just after he got a little
outside. Are the pavement of the market house
and the pavement of the street the same level ?
Yes, sir. Had he stepped through the arch?
Yes, sir. Was it just after he stepped through
the arch that he addressed the crowd ? Yes, sir.
What did he say ? He just said very emphatieal-
ly that the prisoner was in his possession, and he
would protect him, or something of that sort.
Was any one trying to got at the prisoner at that
time ? No, sir. What was the occasion of this
speech? Because of the other attempt. You
think this effort of Tom Powers induced him to
speak to the crowd ? I suppose he intended it
as a warning to the people. Did you see any
signs of the people making a rush at the negro at
that time ? No, sir. But the sheriff without any
such signs told the crowd he was going to do his
duty and the man was in his possession? Yes,
sir; the only signs I seen was the colored people
talking together in an excited manner. Didn't
he speak to those colored men ? No, sir, he spoke
to the crowd; it was a general address to the
crowd I judged. How near was the sheriff to
the prisoner ? When he spoke to the crowd he
was very near him. Right at him? Yes, sir; I
cant remember whether he was in front or rear.
Were the policemen around the prisoner? The
policemen were still at him. Did you see any
policemen with clubs at that time ? I won't
say positive. Were you inside of the mar-
ket house when» the Sheriff made his little speech
to the people ? He made that after he got out.
Where were you ? I was about the centre of the
arch at that time, and perhaps a little out. You
were just moving out? Yes, sir. Was the whole
crowd in motion ? Yes, sir, and Capt. Tolar and
myself stopped on the» pavement, in the centre of
the main arch, and the crowd rushed between us
and the prisoner. When Sheriff' Hardie made
this speech to the people, was he right among the
people—were they right up against him—or were
they clearing out of the way ; he had to get them
out of the way to get along, didn't he? Yes, sir.
When he made this speech, I want to know wheth-
er he had a clear space around him, between him
and the crowd he was talking to ? I could not
say. Didn't you see him ? Yes, sir, I saw him.
Didn't you see the crowd? The crowd was all
around. Warn't the crowd right up against him?
I should judge they were. Were they not as near
him as they could get? I don't know whether
they were pressing right against him. Do you
say they were not? I say I don't know whether
they were or not. Were they close enough to press
if they pleased/ If they pleased they were. He
was right in the midst of the crowd when he made
this address? Yes, sir. You passed out and
stood in the centre of the pavement ? About op-
posite the centre arch, in the centre of the pare-
rnent. And Capt. Tolar was standing by you ?
Yes, sir. On your right or left ? if I remember
right he was on my right. Try and remember it
rightly; you have been back to locate the posi-
tions? I was somewOat to his rear and I th'ink to
his left. A little to his rear and left then ? Yes,
sir. So he was to your front and right? Not
much to my front. Now, what had become of
Leggett at that time? Leggett was near us.
Hoav do you know ? I know it because I seen
him very near us, I think he was near me, per-
haps he was little further to the rear, and perhaps
a little further to my right, I heard his voice.
His voice is peculiar. You don't remember see-
ing him ? I noticed seeing him at different times
in the crowd, but I could not say at that time.
Where was Ralph Lutterloh at that time, when
you got out side on the pavement, and took your
station ? Since I have been to the market house
and took a view of where we stood, I think hq
was, a little to my left, and rather to my front.
You think Capt, Tolar was a little to your right
and front? Yes, sir. And Lutterloh a little to
CONVENED AT EALEIGH, NOKTH GABOLINA.'
your left and front? Yes, sir. So that you
stood, as it were, almost between the two ? Yes,
sir. And Leggett, you can't say where he was ?
No, sir, one circumstanee made me remember
where Lutterloh was, when Phillips stepped baek
he stepped back by Lutterloh. You remember
where Lutterloh was standing then? Yes,sir,
because I noticed Phillips as he stepped back.
Well sir, after you got outside, how long was it
before the negro was shot, could you have coun-
ted a hundred? No, sir. You don't think you
could ? No, sir, they walked on slow, and he
tried to break loose and come down, and while
he was down. Who was by him then ? I could
not see, because there was such a crowd between
us. Didn't you see the sheriff knock him down,
to prevent him from getting loose? No, sir.
Didn't you see him catch him in the front of the
comforter. 1 seen the policemen holding him,
of course trying to keep him from getting away,
and he went down. Didn't you see one of the
policemen catch at the long comforter he had, in
front ? No, sir. Do you remember he had on a
comforter that day? I don't remember now sir.
You think he was jerked down ? He went down,
I don't know whether he was jerked down
or not. You think he was trying to escape, and
and the police threw him down to prevent him ?
lie was trying to escape. And the police, in
their struggle to hold him caused him to go
down ? Yes, sir. Now at the time he was trying
to escape, was not some one trying to take his
life that you saw ? No, sir. You didn't see any
body rushing upon him? No, sir. The crowd
was perfectly quiet? It was not perfectly quiet,
because they were moving. They were not pres-
eiug towards this man ? They were not pressing
on him that I saw. You swear positively they
were not pressing on him, because you were there
and could see him. I could not see him when he
was down. When he went down I want to know
what was done in the crowd that was around him,
if there was nobody to get at him ? I did not see
him. You didn't see auy pressure on him at all ?
No, sir. You didn't see the policemen use their
clubs ? No, sir. Didn't you hear the Sheriff tell
the men to use their clubs ? I remember hearing
one policeman tell the men on his right to stand
back out of the way, and if they didn't, he would
use his club. Was that just before the uegro fell ?
About the time the negro fell; it was near that
time, but whether it was before or afterwards I
could not say positively. But at the time you
saw him try to escape, j'ou don't think there was
anything said? No, sir. You didn't see any
danger from it? No, sir. He was not in any
danger from the crowd ? No, sir. You saw no
clubs used? No sir. Did you hear a blow struck?
No, sir. Did you see a knife fall out of a man's
hand, and hear it clash on the pavement? No,
sir. Did you see nobody pick up a knife
that had fallen on the pavement ? No, sir.
Did you hear any exclamation of " kill him, kill
him'' that day, from any quarter? I heard some
halloing. Where was the halloing? It was
to my left, several voices, but my being back, I
never made out what they were saying. What
was to prevent you, you say it was a quiet crowd ?
My attention at that time was directed to the
prisoner aud the policemen, my whole mind was
on that. Your whole mind being on that, yon
didn't see that there was any danger of an assault,
aud you didn't see them use their clubs at all ?
No, sir. Y ou saw no pressure on the policeman ?
No, sir. You saw no necessity of their using
their clubs ? No, sir, only this one policeman,
and I judged some of the crowd pressed against
him. That is the only sign you saw of anything
like an attempt to get at the negro? I'didn't
think that was an attempt to get at the negro.
You are certain there was not auy attempt at the
time ho was trying to escape? Yes, sir. You
didn't see anybody strike at him with a knife at
that time? No, sir. When was this cry you
heard, that you cau't tell what the words were?
was it before he attempted to escape or after-
wards ? I could not give the exact time. What
was the exclamation you heard ? Some persons
hollowed out as near as I can remember, " fix
him," or something like that. You cau't swear
what the exact words were? No, sir. Is that
the only exclamation you beard, you swear you
heard no one 6ay kill him, kill him ? I dont re-
member now of hearing the word, "kill him,"
I may have heard it, but I don't remember it
now; the crowd was confused, men were talking
every one was talking to somebody at the.time
and some word* was used, it was either kill him,
or something to that amount. ,Some expression
of that effect was used, before he was shot ? Yes,
sir. Did you hear some one say "he will get
away, kill him ?" I heard the remarks that lie
was trying to get away ? Didn't you hear sev-
eral cry out that ? Perhapsldid. Youdidu'tsee
the assault made on him then, till the pistol was
fired, except the one in the arch, when he was
coming out? No, sir. Almost as soon as he
straightened after he fell he was shot ? In a very
little time, was not it immediately? Yes, sir,
you may say immediately. Now at. that time
you were standing at the point where you first
stopped on the pavement, when you went out ?
Yes, sir, I didn't change my position at all, more
than move a little. And the other gentlemen
were standing there relatively, as you described
them ?. Yes, sir, Tolar was to my fight aud front;
to tbe best of my knowledge. You saw him
there ? Yes, sir, and Lutterloh was to my left and
front, to the best of my knowledge. You are
certain that they were in the same group with
you, and Leggett also ? Yes, sir. In this crowd
you could not be certain what anybody said, at
a little distance from you, tout you know these
gentlemen were near you ? . Yes sir. While you
were standing in that position you saw a pistol,
could you see Archy ? When he was raising I
seen him, his head and shoulders. And you saw
a pistol protruding towards him? Yes, sir,
There was perhaps fifteen or twenty heads be-
tween me and where the pistol was. What sort
of a pistol was it ? I only seen the barrel. How
long was the barrel ? I only saw a portion,
about two or three inches. That was all you
saw of that pistol? Yes,*6ir. What prevented
you from seeing-the rest? The crowd sir, the
reason I seen it at the time it was shot there was a
little opening, the persons seemed to move their
heads. Did you see it before it fired ? At tbe mo-
ment of m^ seeing it, it fired. Which end of the
barrel was it you saw, the end towards the stock
or the end towards the muzzle? The end towards
the muzzle sir. Did you see the very muzzle ?
Yes, sir, I seen the end of the muzzle. About three
inches of it ? I would not say the exact distance.
You didn't see the whole pistol, only the end of it?
No, sir. How high was it elevated above the
shoulders of the crowd ? To the best of my lanowi-
edge it would be about the shoulders of the crowd,
I should think, because the heads of the persons
hid it from my view. Didn't you see more pistols
in the crowd at that time ? Yes, sir. Whose did
you see? I went to the place and tried to briDg
my mind to where these pistols were, to see if I
could possibly bring to my mind who it was that
had them ; I went to the market house and took
my position as I was standing as near as I could; I
kne w I would be summoned as a witness, and as I
stood there I tcok every thing in view; things 1
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PROCEEDINGS OF A MILITARY COMMISSION,
eould not remember on tbe inquest trial, because
1 was so hurried up there, and i was never inside
of a Court House half a dozen times before in my
life; and I went and stood as near as I eould to
where I waa standing; What did you recolleet
when you went there about these pistols, you said
upon the coroner's inquest you saw four pistols,
where were they t They were scattered about in
the crowd mostly in front of me. Who had them ?
The only person I can remember, I have ttied my
best to remember, but the only person that I can
remember with a pistol that day in his hand, was
Samuel A. Phillips. I3 that one of the four you
spoke of before the coroner's inquest ? Yes, sir.
You never told any thing about your seeing Mr.
Phillips so closely connected with this matter be-
for® the coroner's inquest ? No, sir, I went after-
wards And brought to mind every person that was
standing by me. But you remember you saw four
pistols at that time, but you don't remember as I
understand yon, any thing about having seen Mr.
Phillips in such close connection with the phtol ?
No, sir, until after the circumstance brought him
to my mind. You were sworn upon tbat occasion ?
Yes, sir, and I said what I knew, to the best of my
knowledge and belief. You were sworn to tell the
whole truth tbat day, and you mentioned nothing
about this matter about Phillips ? No, sir, for I
was bewildered at that time, £ bad never been a
witness before. Your testimony at that time did
aot implicate Mr. Phillips in any shape, form or
Way ? No, sir. Now, sir, when did you first give
your testimony, afterwards to any body—stating
what you were going to relate here, when did you
tell Mr. Fuller ? J said to him what I had seen.
When, before you were summoned as a witness
here at all ? Yes, sir. Before Mr. Fuller, came
up to attend the trial ? Be had been up here I
think and came back. That was the first time you
spoke to him about it? Yes> sir. Did you tell
him, upon that first narration, upon your part,
anything about Mr. Sam. Phillips, about your 8us-
pecting that be had something to do with this
business? 1 think that wasthe first time I spoke
to him about it. Didn't you know Sam. Phillips
was on trial, and was one of Mr. Fuller's clients)
when you spoke to Mr. Fuller ? I will tell you
what conversation. I don't want to know the
conversation? I am not positive whether
I mentioned Phillips' name in his office or not,
I know I did not mention it to him yesterday,
but I would not say positive whether I mention-
ed it to them or not, I only answered his ques-
tions. And you don't remember to have used
Mr. Phillips? name at all? I remember distinctly
using Mr. Phillips' name yesterday. I have no
doubt you did, and that is the first time you re-
collect to have used it, in your examination with
Mr. Fuller ? I conversed with Mr. Fuller before
on this case.. But you never mentioned anything
that attached special suspicion to Sam Phillips
before yesterday ? I just answered his questions.
You didn't mention it before the coroner's in-
quest, you didn't mention it before you came up
here, while Mr. Phillips was Mr. Fuller's client,
and according to your best recollection yester-
day was the first time you told him anything
about Sam Phillips ? Yes, sir. Did you think it
was Sam Phillips all along ? After I brought my
mind to bear on the matter. Not very long af-
terwards, about the time I heard there was going
to be a trial after Capt. Tolar was arrested, I went
to the market house, I had been to the market
house twice for that purpose. After Capt. Tolar
was'arrefeiid you went there twice? Yes, sir.
Did I understand you to say you were A very in-
Mmate friend of Capt. Tolar? Yes* sir. That
he called at your place pretty much every day ?
Yes, sir. Now between the time that this thing
was- committed, and the time Capt. Tolajr was anr-
rested, did you see Capt. Tolar at all; did he
call like he used to call? Yes, sir, no change
whatever. He just came about every day and.
had something to s ay ? Yes, sir. This thing was
talked about'sometimes, I suppose ? If it was it
was a mere conversation, I can give the sum and
substance of what we were talking about. I
didn't) call for the conversation ? The only thing
lie saM was, he had been accused of it. He nev-
er asked you; to go to the market house and re-
fresh your recollection? No, sir, the first time
I went of my own accord. Who suggested it to
you afterwards ? Mr. McRac, a lawyer, came to
me and said, "Ed. if I was in your place I would
go to the market house and stand there, and
bring in your mind everything that you saw, and
refresh yourself." About Phillips, that came to
my mind the first time I went tbere, and I kept
it to myself because I was not sworn to tell it.
The only conversation touching point blank, was
the conversation Phillips had with me ; Phillips
came to my store one night about nine o'clock.
I don't ask you Mr. Phillip's conversation, you
recollected the first time about Phillips, how was
St you recollected tbat ? As I told you, when I
came to think over this matter eoolly a great
many things were brought to my memory, the
situations of some parties I was uncertain of, and
I went to the market house for the purpose of
refreshing myself. Did you go alone ? Yes, sir,
I did. You went there and recalled the events
as you have related them here ? Yes, sir. How
long was that after the events otcurred the first
time, you went to the market house to refresh
yourself? I could n>ot state the- exact time; Was
it a week? Yes, sir, it was several weeks. It
was not the day after, nor the week after? No,
sir. After Capt. Tolar was arrested, wasn't it ?
Yes, sir. Certain? I don't rem efhber what time
he was arrested. Was it immediately after that ?
Yes, sir. Now you saw the pistol, or the barrel,
to your left and front, just off the edge of the
pavement—the man was off the pavement then,
who fired ? I am positive the portion of the pis-
tol I seen was held by a man off the pavement..
You say the pistol barrel appeared to be abontf
two feet off from the head of Beebee ? About
that far, a short distance I said, I could not say
positive. Very close to his head? Yes, sir.
You could see feeebee's head and the end of the
pistol barrel ? Yes, sir. But you could not see
back of that little piece of barrel ? I was some
distance back of the man. You can tell how far
the pistol barrel was from his head, you saw his
head and the pistol barrel too? Yes, sir. Was.
there anything between his head and the pistol
barrel in your view ? Yes, sir. So you saw ire
the crowd for about two feet? Yes, sir. Back
©f that point towards where the butt of the pis-
tol was, you could not see ? I could1 see a crowd
standing, and that was all. How far was the per-
son from you who was holding the pistol judging
from the position ©f the pistol? I should judge
about eight feet, not quite eight. It was eight
feet more or less ? Yes, sir, I judge he was that
distance where the psstol was, I don't know
whether he was leaning over or standing erect;
for that reason I can't say positive. Dropping a
perpendicular from the point where you 6aw the
pistol barrel, how far from you wo®ld it have
struck ? About eleven feet perhapsy somewhere
near that. How far was Archy from you? Archy
was near about that far,, all I seen was the end of
the~barrel. Where waB Lutterloh at the time yore
saw that piece of a pistoldid yore see him at the
time you saw the pistol ? I didn't see him the
time the pistol was fired. Did you see Mr. Tolar
at the time you saw the pistol ? Capt, Tolar. waa
CONVENED AT RALEIG®, NORTH CAROLINA.
standing right by me. Was Mr. Lutterloh ? He
was standing near ree, but I didn't see him at the
time the pistol was fired. Did you see Capt.
Tolar at the instant the pistol went off? Yes, sir.
Who did you turn to look for first, or did you
turn to look for either? I was little more to the
rear of Capt. Tolas at that time not exactly to the
rear side and side of hs»m, but 1 was a .little fur-
thor back, and of course as my eyes glanced I re-
member haviDg seen him, I remember seeing
him more particularly because I was by him. I
understand you t® say Lutterloh was by you too;
was anybody between you and Lutterloh? I
don't think there was. You remember one man
that was by you on one side, why not remember
tkc man oil the other side too; how I want to,
know if, immediately atter the pistol fired, you
noticed Lutterloh was there ? I was looking
in the direction of the pistol shot, and
about that time Phillips had stepped back.
I am asking you where Lutterloh was, as
soou as you withdrew your eyes from the pis-;
tol ? I ■ could not give his exact position.
Was he within your sight. He was directly after-
wards. How do you mean directly afterwards,
before y®u could have counted five ? Not before
I could have counted five. When was the first
time you saw Lutterloh after the pistol was fired ?
I would not say positively, on my oaffch, what time
it was; it was a very short time. I want you to
say as near as you can come to it; you know
whether something else transpired between the
shooting of the pistol and your seeing him, don't
you say Lutterloh was to your left, and front ?
He was directly afterwards, nay eyes as I told you
were not in that direction. But you saw Tolar
directly afterwards didn't you ? Yes, sir. Did
you see Lutterloh as soon afterwards as you saw
Tolar ? No, sir. How much time was there be-
tween the time you saw Tolar, and the time you
Lutterloh? I would not say what time, fori
don't know. Did I understand you to say you
saw him immediately, almost after the firing ?
Yes, sir, I don't say the exact time, but I could
not help seeing him, he was standing near me.
I simply want to know how long it was before
you saw him ? It was no time scarcely ? Are
you speaking of Tolar or Lutterloh? I was
speaking of seeing Tolar ? You saw Tolar imme-
diately afterwards ? Yes, sir. Now, when did!
you see Lutterloh ? It was a short time after-,
wards. A short time is very indefinite. I don't
care about venturing on a time. But you do veu-
ture to say you saw Tolar immediately ? Yes,
sir, I did. Now I want to know if it was imme-
diately that you saw the other man. Not quite;
as soon as I saw Tolar, there was not much differ-
ence. One was immediately followed by seeing
the other ? I could not say Ms exact position at
that liime. Your impression is when you saw him '
he was to your left and front ? Yes, sir. Was he
between you ami the point where you saw the
ipistol fired, I mean Lutterloh. No, sir. Was he
nearer to the point than you were ? He may have
been nearer but he was not between me and that;
point. He was a little aicarer the point where
the pistol was fired, than you were, in your esti-
mation? Yes, sir. Didn't the pistol lire from
behind him ? 1 eouM not say positively about
that. Can't you say positively that if did not,
from the the way ye® have been speaking ? As I
told you when, I first noticed Lutterloh, Phillips
was just stepping back of him, and Phillips hav-
ing a pistol in his hand drawed my attention to
Lutterloh, when he passed him. When you first
saw Lutterloh, Phillips was in front of Lutterloh?
I should judge so for he was stepping back. He
was in the very act of passing him? Yes, sir.
Then this point you saw the pistol fire was near
the point you saw Phillips came from ? Yes, sin
That point was in front of where you saw Lutter-
loh ? I can't say that, for at the very instant the
Eistol fired, I didn't know the exact position of
utterloh, Lutterloh himself may have changeA
his position five or six feet. But what 1 want t®
know, is, and I try to make myself comprehen-
ded, whether, when you did see Lutterloh, sup-
posing him to have occupied the same posi-
tiou at the moment the pistol was fired ; he
was behind the point where the pistol fired, or
before it; supposing Lutterloh was standing
where you first saw him—was the pistol fired bo-
fore his face or* behind his back ? I could not say
positive to that, because Lutterloh may have shift-
ed. And yet you say it was eight or eleven feet
to your left end front, but you can't say whether
it was in front of Lutterloh or behind bim; I am
not talking about when the pistol fired now; I
. want to know whether the position in which the
pistol was fired was before or behind the position
in which you saw Lutterloh afterwards? I should
judge when I seen Lutterloh the pistol was fired
m front of him, but he may have changed his
position. You think he did change his po-
sitieai ? I should judge so because nearly the
whole crowd changed their position. I under-
stand as soon as the pistol fired you turned suffl-
cient to know that Tolar was on your right, you
saw him? Yes, sir. And almost as quick as
thought after that you saw Lutterloh ? Not al-
most as quick as thought. Could you have count-
edten? I could not say positive as to that. It
was a while afterwards? Yes, sir. Was not
Phillips further from you than Lutterloh at the
time you saw him there ? They were about to-
gether at that time. Wasn't Lutterloh between
you and him as fee stepped back? Bather,I
don't know which one stepped back, himorLut-
terioh. Do you know that Lutterloh did step
back ? I could not 6wear positive that he did.
All I am trying t® find out is—first, how Jong af-
ter the shooting of the pistol was it before you
saw Lutterloh, and when you did see him, wheth-
er the spot you saw him in was in front of the
point or spot whore you saw the pistol fired ? I
will try to explain as nearly as I can, one remark
that Lutterloh made to me afterwards made me
believe that he had been frightened at something,
and stepped back. "It sounded so in my ears, I
thought it was ehsot over lay shoulders, and it
scared me," or something to that amount, and
he saw he thought it was tiane to be getting
away, that reason I judged he was frightened,
and siepped back. You still won't answer my
question I ask you; when you did see Lutterloh,
and you did see him, sifter the (pistol was fired,
as you say, I ask you at the time when you first
saw him, after the pistol was fired, was the spot
in which you saw him, with respect to you be-
fore or behind the spot where you saw the pis-
tol go off; I think I have told you my meaning.
As I told you just now, I could not say positive,
it is a very delicate question, and I want to say,as
near correct ©n my oath as possible. You can't
say? Not positive. Didn't you-say positively
that the pistol was fired fe-om eight to twelve feet
from y®a ? Yes, sir. And I w&wtto know wheth-
er the spot where you saw tbe .pistol was nearer
to you than where you saw Lutterloh afterwards?
Lutterloh was wearer <of course. The flash of the
pistol was further Off than the spot where you at-
terwards saw Lutterloh ? Yes, sir. Which was
the furthest to your front, the spot where you
saw the flash of the pistol, or the spot where you
first saw Lutterloh ? The pistol was more di-
rectly in my front. And further from you ? Yes,
sir, what would change the distance to the eye,
one was rather to my left and the other was
480
PROCEEDINGS OP A MILITARY COMMISSION,
nearer to my front. And you think Lutterloh
was rather more to your left than "the pistol. I
rather think so. So the pistol man must have
been to his right and front; that is your notion
- about it? I don't like to have a notion about
this matter unless I was certain of it. I want
you to be certain if you can ? I told you just
now I seen Lutterloh, and I told you just now
that the pistol flash was nearly in front of me,
and further off than Lutterloh. Then it must
have been to the front of Lutterloh, if he was
standing where you saw him ? It may have been
to his rear. It was not behind his back, either
right or left, where he was standing at that time?
I would not be positive about it. As you looked
towards Lutterloh, you saw Phillips step back?
I didn't look for Lutterloh when I looked around.
As you saw Phillips you saw Lutterloh ? About
that time, it was a mere giance,.what I was look-
ing at was the pistol, and then Lutterloh makirg
the remark afterwards. You didn't hear that re-
mark on the spot ? No, sir. Was it before Capt
Tolar left that you heard Lutterloh make that
remark? It was directly afterwards. How long
afterwards ? A few minutes. He said he thought
x he was shot? No, sir, he said be was fright-
ened, the sound of it was just like the pistol was
by his ear. Did he put his hand up to his ear as
he described it. He pointed to his ear, when he
was telling me about it. Which ear did he point
to? 1 don't remember that; these details I can't
remember all of them. I should think you might
hit upon one of them by accident; well, sir, when
you did see Mr. Phillips, he was passing by
Lutterloh stepping back? Yes, sir. Did he step
back with his right foot, or left foot? He was
making steps back, he got to the rear of Mr. Lut-
terloh. Was Lutterloh on his right or left, as
he passed ? To the best of my Impression he
was on Lutterloh's left. Was any body between
you and Sam? If there was 1 don't remember;
he sp6Jte to me and said, " Ed* you had better
look at my pistol, and see whether it was flred or
not." Did he appear to be excited or not? He
appeared to be excited some. He appeared to
show some signs of excitement ? Yes, sir. What,
was he pale ? Somewhat. Was his voice trem-
ttlous ? Yes, sir. Could you see big drops of
sweat on his face ? I don't remember about that.
You think he was pale and his voice tremulous?
Yes, sir. Did the hand tremble that he had the pis-
tolin? When bespoke to me, he had the pis-
;tol in both hands. Which way was the barrel
pointed ? When he showed it to me it was right
in both hands, in front of him. As soon as you
tried to take it, he put it back? Yes, sir. Did
it strike you at the time it was singular, to ask
you to look at the pistol, and put it up ? I
thought at that time he would not ask me to look
at his pistol, unless all the loads were in it. - Did
it strike you as queer, that he took it away, and
pnt it behind him ? I thought during the excite-
.ment, he didn't know what he was doing. You
■thought that when you testified before the cor-
•oriel''s inquest ? As I said, it made such a slight
Impression on my mind, the circumstance did
•not strike me then. I had no idea at the time
that any barrel was shot, and I don't know now
that there was. He may have thought that I
didn't want to sec it, by my not reaching my
hand out. How long did he hold it there ? Just
a second1. You moved towards him? Yes, sir,
but I didn't reach my hand out. Before you
moved back you say you saw him offer it to some
body else? Yes, sir. After he put it under his
coat lie offered it again? Yes, sir, but he didn't
move but a few steps. Who was that he offered
it to'? I think if I am not. mistaken he spoke
«h»ut it to £Lnephew of his? Hendricks? Yes,
sir, but whether he examined the pistol or not I
dont know, he didn't take it right then. That
was right after the shooting was it? Yes, sir.
It was all done in a few minutes ? Yes, sir, any
circumstance like that affair, a minute after seems
a good deal. Your impression is it was Kendricka
that he was showing the pistol to ? He had his
pistol in his hand some space ot time before he
showed it to Kendricks. How long a space of
time, long enough to load it, was it not, secretly
behind him? Yes, sir, if he could load it with-
out taking it apart. It was long enough to reload
one barrel? It was long enough for a man to
slip in a cartridge and fix it all right ? Yes, sir.
But when you saw him after offering it to you,
he put it under his coat behind, and the next you
saw of him, he had it out before him. Do you
say between these times was long enough to have
loaded one barrel ? Yes, sir, if he could have put
the bullet in, without taking the cylinder out.
He would have had time to have cocked it, taken
oil' the old cap, put on anothrt- cap and put iff a
cartridge? Yes, sir, just as lie put it behind
Capt. Tolar made some remarks to me, and I
turned* What was the remark ? It was someth-
ing in regard to Phillips pistol I think. He
asked rae what that was Phillips was asking about
and at that time Mr. McDuffle or some of them
was talking, and 1 said to Capt. Tola?, " hush
and listen to what the Doctor says." Did Capt.
Tolar go off after that ? Capt, Tolar left, but I
don't know exactly where he went. Do you re-
member when he left ? I don't, exactly, after a
while we separated, and I g»t with Mr. Hall and
Lut'terloh. Hall and Lutterloh and you got to-
gether? Yes, sir. When you were standing in
this crowd, from first to last was any of the
crowd behind you ? There was very few behind
me. When you came out on the market house
and stood on the pavement, was any crowd be-
bind you ? There was some crowd come in
afterwards from behind. I want to know,
when the pistol fired, whether there was
any particular crowd behind you? Yes, sir,
a portion of the crowd. Were you in the crowd,
or were you on the outside? I was not ©n the
extreme outside edge, but very' near it. The
mass of the crowd was before you? Yes, sir,
most of it. Didn't yott hear anybody in the
crowd shout out Capt. Tolar had killed him ? I
heard one remark that, I remember now, when
Capt. Tolar fixed his shawl—some person had run
against him, and pushed up his shawl; he step-
pedbackto fix his shawl on, and that was the
time I seen the pistol in his holster and some lit-
tie black boy about seven years old, he said
" there is a pistol, I bet that pistol killed him,.
I bet Capt Tolar killed him." That was all you
heard of that sort? I noticed Simmons and Arm-
strong standing to my left, at that time Simmons
was standing there quietly, hut afterwards made
some remark, after the prisoner was dead, Arm-
strong was standing talking, and as soon as the
pistol flred Armstrong stepped closer. I remem-
ber him because he is a person if anyone sees him
they will be apt to know him again. Was he
standing near the point where you saw the pistol
fired when you saw him ? He was not standing
right near it. How far oft from that point was he
standing when you saw him ? I suppose he was
standing as far as from here to that desk, (sixteen
feet.) From the point where the pistol flred ?
No, sir, from where I was, How far from the
point where the pistol was ? About as far as
from here to the desk where Mr. Fuller and Mr.
Phillips are, (about twelve feet.) Was that little
boy the only person you heard say, in the crowd
that olay, Capt. Tolar killed him ? I heard John
Armstrong and Sfim Tooiner afterwards say it.
CONVENED AT RALEIGH, NORTH CAROLINA/
181
Right then and there that was the only one ?
Yes, sir. Didn't you hear other persons cry out
in the crowd that Capt. Tolar had killed him?
Not at that time. What do you mean by that
time? After the things had got sort of quiet,
then I heard John Armstrong and Sam Toomer.
I mean within three or four minutes after the
pistol was shot, that boy was the only one ? Yes
sir, and he just saw the pistol, "there" says he
"is a pistol" "that killed him," or something.
Now sir, you say you did not, at any time that
day see any one leap up upon that bench, and
say "look out," or anything of that sort ? If he
did I don't bring it to my remembrance. You
don't say nobody did do anything of that sort?
No, sir. And I understand you to swear most
positively, and that you have no doubt about it
and never have had a doubt, that Capt. Tolar did
not fire that pistol ? I don't believe, on my oath,
that Capt. Tolar killed that man. You saw him
within one second of time, from the time the pis-
tol went off? Yes, sir. And Capt. Tolar was
immediately at your right hand you swear. He
was to my right, and in front. You could put
your hand on him? Yes, sir. And the pistol
fired to your left and front? Rather to the left
and front. Was not Lutterloh, at the time
tne pistol fired about three feet behind Archy
Beebee, wasn't he way up in front of that
crowd ? I can't bring to my mind positively
about the distances. Do you know where
Mr. Lutterloh was, when the pistol fired
at all; will yoy swear positive that he did not
shoot the pistol ? I would not swear positive that
he did not. Do you say you swear positive that
Tolar did not? On my oath I said I was standing
by Capt. Tolar, and he didn't shoot the negro, be-
cause I know he could not have shot him without
my seeing it. Then you swear positively he did
not? 1 do swear to the best of my knowledge and
belief he did not. Do you swear positively that
Lutterloh did not shoot that pistol; can you speak
as positively about him ? That is a question I don't
hardly know how to answer; the only reason I can
swear about Tolar was because he was nearer to me.
I understand you to say you saw Lutterloh just
before and just after the firing ? Yes, sir, and I
know Lutterloh had no pistol about him that day.
Was not it possible for Lutterloh to have got off
that distance from you, in the crowd, and fired
that pistol, and then got back to the same point he
was before, without your seeing him; it seems to
me you have an indisposition to tell me about
Lutterloh ? I have no indisposition to tell you
about Lutterloh ; it is not my purpose to show any
indisposition, but 1 can't, on my oath, tell you the
distance he was. If you will only tell me how long
a time it was that you did not see him, I can form
some idea ? No time, hardly. Are you prepared
to say he was not three feet from the man who shot
the pistol ? I am prepared to say that Lutterloh
did not shoot him. Didn't he go up a heap, closer
to him than you were; was not he about three feet
behind him, right close up among the very foremost
of the crowd ? If be was it was a very short time,
and I didn't see him there. He was not standing
there at all? No, sir, he was not; it must have
been a rush up and back again very quickly; I
want to be as plain as I can, sir: It is simply
upon that point that it seems to me there is an
avoidance to tell where Lutterloh was ? As I told
you, there was but a short time it was I did not
see him. Was he within reach of your hand ? He
was near me, I could not touch him ; the furthest
off I seen Lutterloh was when Phillips was stepping
bark past him. How far was that, could you have
stepped to him in one step ? No, sir. Could you
have stepped to him in two? I could have got
there in two. You sav you could not baYe touch¬
ed him with your hand ? After the firing was over
I could not have touehed him with my hands.
Just before it took place could you? As I told
you I could not say positive his exact position re-
lative to me. Didn't I understand yon to say Mr.
Powers, from the time you got outside of the arch
to the time that Beabee was shot., you could not
have counted a hundred ? Well, sir, 1 don't know
whether i could have done it fast or not. I
understood you to say you could not have counted
a hundred from the time he went out of the arch
to the time he was shot ? Not in an ordinary tone
I could not; I don't think I could. Now you went
out of the arch just after he did ? Yes, sir, to his
rear, but there were some persons between me and
him. You got out after he did, and therefor®
between the time you got out there and the
time the pistol was fired, you could not Lave
counted a hundred. I don't think I could in an
ordinary tone. You saw Lutterloh, after you got
out there? Yes, sir. It must have been while
you could have counted one, two, three or four,
or something like that; suppose yon saw him af-
ter you could have counted five, and then just uf-
ter the firing of the pistol; it must have been al-
most instantaneous, as I understand the thing?
Yes, sir. And yet you are not prepared to swear
that he didn't lire that pistol ? I have not the
least idea in the world he did it, I would like to
swear that you did not do it positively. There
are only two persons in the world, that you will
swear did not do it, one is yourself, and the otli-
er Capt. Tolar? Yes, sir. Those two persons
you will swear did not do it? I will swear that
Capt. Tolar, to the best of my knowledge and be-
lief, did not fire that uistol; he could not have
done it without my seeing it. You swear you
would have seen liim if he had shot ? I think I
would have seen him. Now I understand you to
say you didn't see Capt. Tolar fire the pistol?
No, sir, I didn't see him fire. And you 6ay he
could not have fired the pistol without your see-
ing him, that your eyes were not off of him long
enough for him to have fired the pistol without
your seeing him ? I don't think they were. Do
you say positively ? I say this, Capt. Tolar was
standing a little in front of me, and I was look-
ing at the pistol, and when that pistol fired Capt.
Tolar could not have reached and fired the pis-
tol. It was a physical impossibility? Yes, sir.
Then you swear positively it is not so ? As
near as I can say. Can't you, swear pos-
itively that you are sitting in that chair at
this moment? Yes, sir. Are you as posi-
tive of one as the other? About, sir. Mr. Bow-
ers, this thing is certain, if that pistol was
but to your left, eight or ten feet from you, and
the instant after it fired you saw Mr. Tolar on
your right, and standing where he had been be-
fore, it is a physical impossibility for him to have
fired, and and you can swear as positively to that,
as you can to anything that you saw with your
own eyes ? It is a physical impossibility from
where I seen Lutterloh a moment afterwards.
Then you can swear to that like you can to any
other fact that is evidenced to you by your sen-
ses? Yes, sir. Then I understand you to swear
positively that Tolar did not fire the pistol ? I
know it is a physical impossibility for him to
have done it without my seeing it. Can't you
swear I am not firing a pistol now? Yes, sir.
Can't you swear to that as positively as you can
that I am not firing a pistol ? I can. Do yon
swear he did not fire that pistol? 1 do, that is
the meaning I convey, sir, when I am put on my
oath, I mean to convey the truth as near as I
know to the best of my knowledge and belief.
I want to ask you one question, do you believeor
do you not that you are bound to tell the truth
m
rUOCEEDINGS OF A MILITARY COMMISSION
•when you are sworn upon your oath ? I do.
Have you never heard a theory broached lately,
that a man, before a Military Court, is under no
©bligation to observe his oath ? No, sir, I know
that I respect it as much I would in any Court,
at least I respect an oath, I don't care where it
5s administered. And you feel bound to tell the
truth here as well as in a civil court? Yes,
sir. You have had no contrary doctrine preach-
ed to you by anybody ? No, sir. Has any one
■ever told you that you can't be tried for per-
jury, in case you make, a false statement ? I
know I can be tried lor perjury before a Milita-
ry Court as easily as I can before a civil court; if
J was to go before a magistrate and take an oath, I
would know I had to tell all the truth to the best of
my knowledge and belief; but when it comes to
want a man to swear that Mr. Lutterloh, or you
or any other man did not kill the man, that is a
word I don't like to bring out. I can't see why
you should hesitate if you are sure he did not, as
you say you are ? X am sure, to the best of my
knowledge and belief. What do you mean by
the best of your knowledge and belief, a man
must swear to what he sees, hears, smells, tastes
pr feels, and, if using thosesenses you are certain
of a fact, you have a right to swear to it ? I swear
to tell the truth, and I tell that I seen that pistol
at such a distance, and I swear at the time it was
tired that Capt. Tolar was then at my side. You
then qualify your fact by giving us your reasons
for your opinions? Yes, sir. At the very in-
atant the pistol was fired Capt. Tolar was stand-
ing by your side ? Yes, sir, he could not have
stepped without me seeing him.
Re-direct examination by the Counsel for the
accused.
About this matter of Lutterloh, I understand
you to say that you will not fix, and will not pre-
tend to fix Laatterloh's position, at the time the
pistol was fired, for the reason that at that time
you did not see Lutterloh ? At that time my eyes
were on the pistoL And whether Lutterloh was
close by where the pistol was tired, or whether
he was close by you, or where he was at that time
you don't know ? I could not swear positive.
Hut with regard to Lutterloh whether he fired the
pistol, or whether some other of the hundred
men who were in the crowd fired the pistol you
don't know; and. don't swear? No, sir. I un-
•derstand you to say, and swear that you did not
fire the pistol? Yes, sir. I understood you to
swear in your direct examination that Capt. To-
lar did not lire the pistol ? I swear to the best of
my knowledge and belief that he did not, that I
know it was a physical impossibility for him to
have fired it without my seeing it. That the
matter could not have occurred without your
seeing him, and that you did not see him, and
therefore it did not occur ?
, Cross examination resumed, by the Counsel
for the prosecution.
Did you have a pistol that day ? I did not at.
any time that day.
Re-direct examination resumed by the Counsel
for the accused.
I understood you to say in your cross exami-
pation, that yon saw John Armstrong there, that
day? I did. Did you see him before the pistol
was fired, or after the pistol was fired ? I noticed
John Armstrong before and after. Did you see
him before the pistol was fired? Yes, sir. Where
was he then ? He was near towards Ichabod
Davis's store. How far was he from Capt. Tolar,
from the center of the pavement? About as far
as from that table to me, (about 16 feet.) How
long was that before the pistol fired ? I seen him
there while the crowd was there, you know, a
yery short space of time before it was tired. Did
you see him directly after the pistol was fired f
Yes, sir. Where was he then? I seen him
step up nearer. Where did he step lrom?
From towards Mr. Davis's store. Did
he step up nearer to where you were? He
stepped up towards where the negro was. How
near did he come to Capt. Tolar? He come in
about five feet of him. Nearer than that ? It he
didyl didn't know it. Did he make any remark
to Tolar when he came up there ? I never heard
him make it, sir. Did Tolar turn oft in the crowd
or leave the crowd before you left, or did you
leave together ? My impression is Tolar left the
crowd before I did. Up to the time of Tolar's
leaving the crowd, did Armstrong make any re-
mark to him ? Not that I heard. You were
there, close by him ? We were pretty close for a
while we did not stay together all the time, we
stayed together a short time after the shooting.
Questioned by the Commission.
Are you a Mason, Mr. Powers ? Yes, sir. Is
Capt. Tolar a Mason? Yes, sir. In which direc-
tion was Bcebee's face turned at the time he was
shot? I could not say, I didn't see his face.
What did you see ? I saw the back of his head
on one side. The part of his face that you saw,
was that turned toward you? Yes, sir, of course
if I;saw it. The left 6ide of the back of his head
was turned towards you ? I could not say posi-
tively, but I know it was one side. And you
don't know which side. No, sir, I could not give
it to you now, on my oath. Can you account for
your having forgotton, at the time you were ex-
amined before the coroner's jury, all about Mr.
Phillips having a pistol, about the conversation
with Mr. Phillips, Mr. Phillips offering you the
pistol ? I have often thought since, how I come
to forget it at that time, but I was nnaccustom-
ed to being a witness, and it bewildered me. Do
you remember all the circumstances connected
with that affair much clearer now than you did
then ? Yes, sir. Then a circumstance that took
place six months ago you recollect better to day
than you did the day it occurred ? Some circum-
stances, I would. Do you not recollect, to day,
six months after this occurred, all the circum-
stances connected with it, clearer than you did
the very day ? I remember it now. Do you re-
member it clearer than you did that day ? Yes,
sir, I do. Mr. Powers isn't that rather a singular
fact, that your memory should be better a long
time after an occurrence, than immediately after-
wards ? Recollect I have not just thought of this
I have been thinking of it sometime. Will you
forget all about this examination tomorrow, and
to day six months recollect the whole of it ? No,
sir, but I may not be able to give it in the exact
words.
Re-direct Examination, by the Counsel for the
accused.
' Before the coroner's inquest, were you asked
any questions with regard to Mr. Phillips, about
his connection with this affair? No, sir.
On motion the Commission adjourned to meet
on Thursday, Aug. 27th, 1867, at 11, A. M.
Raleigh, N. C., Aug. 22d, 1867,11 A. M.
The Commission met pursuant to adjourn-
rnent.
Present; All the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
The reading of the testimony taken y esterday was
waived, there being no objections thereto.
Yesterday's proceedings were then read and ap-
proved.
Mr. Eugene Davis having reported as one of the
Recorders of the Commission, was duly sworn by
the Judge Advocate, ia the presence bf the Com-
CONVENED AT RALEIGH, NORTH CAROLINA,
183
mission, and in the presence of all the accused.
Henderson Lockamv, a witness for the defence,
having been first duly sworn, testified as follows :
Examined by the Counsel for the accused.
What is your name? Henderson Lockamy.
Where do you reside? Fayetteville. What
State ? North Carolina. How long hare you re-
sided in Fayetteville ? About twenty-seven years,
ever since 1840. Were you in Fayetteville on the
day Archy Beebee or Archy Warden was killed ?
Yes, sir. Were you at the market house that day ?
Yes, sir. At what time did you go to the market-
house? Well, sir, I was down about there most
of the day; my business at that time was over the
street, as I was buying timber for Mr. Slocum; I
suppose 1 stopped there before the trial commenced
or before Archy was carried out of the guard house.
Hid you see him carried up stairs? Yes, sir.
Where were you standing; at what part of the
market house; at the time he was carried up stairs ?
1 was standing under the eastern end, in the main
aisle, under the main arch. Under the main east-
era arch ? Under that end, not exactly at the arch
but sort of opposite the stair steps. What was the
size of the crowd under the market house at that
time ; or was there any crowd there ? There was
Some there, I can't say, perhaps twenty-five.
How long did you remain at the market house ? I
remained there until after the trial wa3 over.
How long was it from Arcby'g being carried up
till the time the trial was over? I suppose three
quarters of an hour or an hour. Did you remain in
the same position all the time while he was up stairs?
I didn't move much ; I mought have moved about a
little. During the time Archy was up stairs, was
there anything unusual in the crowd which was
assembled there; anything that,attracted your at-
tention? No, sir, nothing more than there was
more persons around there than usual. Did you
hear anything while there from any person what-
soever to kill Beebee, wrest him from the sher-
iff, or to do him any harm ? Not that I recollect
of. Did you see any whispering or any consulta-
tions between any persons there under the
market house while he was up stairs ? Not that
I recollect of. Were you at ;the market house at
the time Miss Elvira Massey and her mother went
up? Yes, sir. Did you see them ;come there?
Yes, sir, I seen them come. In what sort ot con-
veyance did they come ? Wellj sir, it was a car-
ryall, or something of that sort. Where did the
carryall stop ? In front of the eastern end about
twenty or thirty feet from the pavement. Who
accompanied them from the market house ? Mr.
Bond. The town constable? Yes, sir. How
long do you think Miss Elvira Massey and her
mother remained up in;the market house ? About
three quarters'of an hour, or something like that.
Did you see them when they came down ? Yes,
sir. Where were you standing at the time these
ladies came down ? I was under the eastern end
there, somewheres near it, I can't tell exactly the
place, but it was somewheres under the eastern
end near the same place where I was before. At
the time they came down, did you then notice
anything unusual in the appearance of the crowd?
No, sir. How much larger was the crowd at that
time; I mean the crowd under the market house,
and outside of the market house; how much lar-
ger was it that day than it was when you first
went there ? It was a great deal larger at that
time. Composed of white persons alone ? Well,
there mought have been some black ones around;
I didn't notice any that I could call their names.
Did you sec Miss Massey and Mrs. Massey get
into the carriage after they came down ? Yes,
sir, I seen them go to the carriage. Wh® escor-
ted them to the carriage ? Mr. Bond. Did he go
down with them ? Yes, sir. IIow long did the
carriage remain there after the ladies were helped
in? A very lew minutes, perhaps five, or hardly
that much. Were you in a position where you
could see the carnage at that time? Yes, %ir, I
was right down there at the eastern end. Did
you see any persons go to the carriage while the
ladies were in it ? Yes, sir, there was some two
or three. Do you know who they were ? I know
Mr. David Cashwell, Robert Mitchell and Mr,
Taylor. Which Taylor? Phillimon Taylor. Didl
yon see anybody else go to the carriage ? Nob
that 1 recoilect of. Did you see William J. To-
lar at the market house at all that day? Yes,
sir, I saw him there. Did you see him there at
that time? I didn't see him there after Archy
came down. I am speaking before that time
when the ladies went to the carriage, did you see
Tolar at that time? No, sir, I didn't see him at
that time. Did Tolar go to the carriage? Not
that 1 know of, I didn't see him. The carriage,
then, you say drove off? Yes, sir. How long
was it after the carriage drove off before Beebee,
the deceased man, was brought down stairs?
Well, sir, it was a very few minutes, perhaps five
minutes, or not that much. Where were you
standing; describe it as exactly as you cm at the
time Beebee was brought down stairs ? I was
standing on the end of one of them benches that
is abo.ut there to set on, right on the eastern end
of the bench. You mean you were standing on
a bench which was on the eastern side of
the aisle as you are looking towards the riv-
er? It was on the north-east side ot the
aisle, I was in the eastern end of the bench.
How far did that throw you from the main
central arch, the north east portion of that main
central arch ? It only throwed at that time three
or four feet, I suppose. Which way were you
facing ? I was facing towards Archy at that time.
Did you see him when he first appeared at the
landing of the stairs ? Yes, sir. You saw him
there? Yes, sir. Can you tell who were with
him, sir, at the time you first saw him there, who
were in company with him ? The Sheriff was
with him. Sheriff Hardie? Yes, sir, and Mr,
Faircloth and Mr. Wemyss. David Wemyss?
Yes, sir, and there were two or three other po-
licemen with him, Mr. McGuire and Mr. Hour*
rine. They were all with him ? Yes, sir. Who
came down the steps first in that party, Hardie,
Faircloth, Wemyss or who? I can't say for cer-
tain who came down first. Did you notice any
thing that attracted your attention there in tho
man Beebee, or in the party with him-, from the
time of his first appearance on the landing until
he reached the floor of the market house ? No, sir.
Did you at that time notice anything unusual in
the crowd which was surrounding that place?
No, sir, I didn't see anything unusual more than
the crowd. Mr. Lockamy, did you know John
Maultsby? Yes, sir. Young .John Maultsby?
Yes, sir. Did you see him there at all that time ?
No, sir, I didn't see him there at that time. The
bench which runs in front of Becky Ben's stall,
was that directly in your line of view from thei
place where you were standing looking up to
the landing of the stairs, or was it not ? I was
standing on the bench opposite Becky Ben's,
Was Becky Ben's bench in your line of view
standing as you were on the eastern end of that
bench opposite Becky Ben's bench, and looking
up there at the landing of the stair 6teps ? Yes,
sir, it was right in my view. Did you see any
person jump on that bench at' that time ? Not
that I recollect of. Did you see John Maults-
by jump upon that bench at that time?
No, sir, I didn't notice any person jump on it.
Try to remember sir, whether you did or did not
see John Maultsby jump upon that bench and
tu
* proceeding^ op a military commission,
cry out "watch out boys" or any thing to that
effect? No, sir, I am satisfied I didn't see him;
if I seen him 1 don't recollect any thing at all
about it. What is your impression, that, that
occurred, or it did not ? My impression is, it
did not occur. Then wc bring Archy and the
party with him to the foot of the stairs ; were
you still, maintaining that position, when he
reached the floor of the market house ? Yes, sir.
What occurred then, after reaching the floor of
the market house to attract your attention ? Well
sir; atter they reached the floor of the market
house, and came on out and turned the arch, or
as they were turning the arch. Which arch ?
The south east arch on the southern side; the
arch as you turn around to go down to the guard
house. The arch you m.ean which opens towards
the river? Yes, sir. That is the eastern, arch;
as Arehy and the party with him went out that eas
tern arch, to go down towards the guard house,
you then observed something that attracted your
attention, what was it? Well sir; as they went
to turn that arch, Mr. Powers. What Powers ?
Tom Powers, demanded the prisoner. What did
he say? Well as Avell as I can recollect he took
hold of him in the breast aud said' " I demand
this prisoner." What reply was made to that if
any ? I believe that Sheriff Hardie asked the men
to stand back, and at that time they all closed in
and gathered around Archy, and Sheriff Hardie
asked.them to stand back. Did you 6ee Capt.
Tolaratthat time? No, sir. You saw Tom
Powers, you say at that time? Yes, sir. Did
you see David Watkins otherwise called Monk
Julia? Yes, sir, I saw him immediately after
that. I am speaking of that time ? At that time
I had my eyes on Mr. Powers, I didn't see Monk.
Did you see Ed Powers at that time ? No, sir.
Leggett? No, sir. Ralph Lutterloh ? No,
sir. Sam Hall? No, sir. Henry Sykcs?
No, sir. You saw none of them at that
time? No, sir; none of them at that time.
Well what occurred directly after that sir?
Directly after that I saw Monk with a little knife
in his hand make a pass or two. Where was the
prisoner and the party with him at the time you
saw Monk making the parses at him ? They were
trying to carry him to the guard house. They
had cleared the arch? Yes, sir. How many steps
do you think they had taken down the pavement
at that time ? Not oyer one or two, I can't say
for certain. At that time you say you saw Monk
make some passes at him with a knife ? Yes, sir,
one or two. How near was Monk to him at the
time he was making those' passes at him ? I can't
say for certain, perhaps two or three feet. Was
he near enough to have reached him with a knife ?
I can't say for certain whether he was or not. A
good many persons between you and the prisoner ?
Yes, sir. You can't say whether he had reached
him with his knife or not? . No, sir, but I don't,
think he did. What occurred after that ? Direct-
ly after I can't say any thing that occurred, only
as the crowd was' sort of moving along a little.
The crowd was in such commotion between you
and the place that you could not sec what occur-
red? No, sir, I could not recollect one from
another at that time/ Where was your position
at that time ? I had stepped off of the bench ; I
was out pretty much against the arch ? Inside of
the market house or out side of the market
house? I was about the corner of the arch.
Which corner, the north-east side of the aisle ?
About, the north east corner. The north east
corner of the main eastern arch ? Yes, sir, Well
sir, what was the next you saw ? I don't know
that I can say for certain by that time I suppose
the pistol had fired. The next you saw was the
firing of thtfpistol, how tar had Beebee got down
in the pavement at the time the pistol had fired ?
Well sir, he had got some wheres nearly oppo-
site the little arch there, a little below it. Below
the center of the southern most arch of the east-
ern side, do you mean? Yes, sir.
(Wituess shows his position on the diagram aa
standing near the north east comer of the main
eastern arch, and Beebee at the time he was shot
at the south side of'the small arch on the Eastern
end of the market house.)
Do you know whether Beebee was on the pave-
ment or off at the time he was shot ? He was on
it I think sir; I couldn't see his feet. But you
think he was on it ? Yes, sir. Were there a good
many persons between you and Beebee? Yes,
sir. You didn't have a very distinct view of liim?
No, sir. Dicl you see any portion of him ? I saw
his head at the time after he started down. Now
sir just state what occurred immediately before
Beebee was shot, what did you 6ee immediately
before you heard the report of the pistol;
looking at Beebee what did you see ? I seen
BeebeeA head raise up. You lost sight of
liiin before, and you saw his head raise up.
Yes, sir. How long after you saw his head
raise up, was it before the pistol shot was fired ? .
I can't say, it was pretty much right away?
You then lost sight of him, his head raised up,
and pretty much right away the pistol shot was
fired; at that time you say think Beebee was on
the pavement ? I think he was on, I can't say for
certain, there was a good many people between
me and him. Do you know who fired that pis-
tolshot? No, sir, I can't say for certain. You
don't know who fired it? No, sir. Did you see
the smoke ? I saw the smoke. Did you see the
flash? I can't say for certain that I did. Did
you hear the report? Yes, sir. You heard the
report and saw the smoke? Yes, sir. Could
you point out now upon that diagram the point
at which the report was, and from which you saw
the smoke rise ?
(Witness points on the diagram the point at
which he saw the smoke rise as by tiie small
tree opposite the south arch on the cast end of
the market house.)
Was it on the pavement or off ? Near the edge
of it, I can't say whether he was on or off. How
far was it from Beebee ? It might have been tour
or five feet. You think it was about the dis-
tance of four or five feet. I think it was, I can't
say lor certain. You think it was either off the
pavement or near ■ the edge of the pave-
ment, and about four or five feet from Beebee ?
Yes, sir. Was it to Beebee's front or to his
rear ? It was to his left and rear. Did you see
any man at all who fired that pistol ? No, sir, I
didn't see any man fire it that I know of. Did
you see any pistol then ? I saw one pistol; it
inought not have been the same one. Where did
yoir see that pistol ? It was at this same place.
Where you heard the report and saw the smoke,
you saw the pistol ? It was very nigh the place.
IIow long after the report of the pistol, and your
seeing the smoke, was it that you saw this pistol
that you speak of? It was immediately after I
saw the smoke aud heard the pistol. Could you
have counted five ? Perhaps. Who had that
pistol ? Samuel Phillips had that pistol. Well,
sir, in what position did he have it, what was he
doing with it at the time ? At the time I saw it,
it looked like he sort of raised it up just so..
(■Represents the pistol as in Phillips' right hand,
his own bent within one foot of his breast, and
directly in front of his breast, and from that po-
sition he placed it in his breast at his left side.)
Did you see whether he put it under his coat
or outside his coat, or where ? I was too far off
CONVENED AT RALEIGH, NORTH CAROLINA.
185
to tell that; I know he put it in his bosom, I don't
know whether he put it in his pocket or not.
Was there any other pistol fired that day at that
time? Not that I heard, I didn't see any other
pistol at all. What sort of a pistol was that you
6aw in the hands of Samuel A. Phillips ? It
was a repeater of some sort, I don't know
the name of it; it was a repeater ten or
twelve inches in length. It was a long repeater ?
Tes, sir. But you don't know what sort? No,
sir. Did you see Capt. Tolar at that time ? No,
sir; I didn't see Mr. Tolar. Did you see Mr.
Tolar any more that day ? No, sir. Did you see
Ed Powers or Ralph Lutterloh, Sam Hall or any
of them any more that day ? Yes, sir; I guess I
saw some of them that evening; I know I 6aw
Ed Powers up at his store. 1 mean at the mar-
ket house or under the market house? I didn't
see them there any more that evening that I re-
collect of. Mr. Lockamy, while you were there
at the market house before the boy was brought
down, were you mingling pretty freely with the
crowd? No sir; I was not having much to say
to them, that I remember, I mought have spoke
to some person; I reckon I did, but I don't re-
collect who. You just were there as a silent
spectator? Yes, sir; that was my position. Did
you hear or did you know of any agreement or
any arrangement or any combination by any per-
sons to do any unlawful act there that day ? No,
sir; I didn't hear any thing of the sort.
Cross examination by the Counsel for the pros-
ccution.
Mr. Lockamy what time did you rise the mor-
ning of the murder. Early in the morning. Did
you go up to the market house right straight
away? NotthatI know of; I don't suppose I
did. Don't you remember what you were doing
in the early part of the day? Well, I was receiv-
ing staves and paying for them. How far from
the market house ? The place I received them at
was some quarter of a mile or half a mile I suppose.
When you first got up did you go to the place where
you received staves, was that your first visit ? Yes,
sir. Did you go out before breakfast? I guess I did.
Can't you tell ? I can't tell for certain about that
time, but I always went down to the shop before
breakfast; I. don't remember whether I went
down before breakfast that morning or not, par-
ticularly. That is from a quarter to a half a mile
from the market house ? Between a quarter and
a half a mile. You went home to breakfast? I
live right at the shop; yes, sir, I went home to
breakfast. Do you remember where you went
after breakfast ? No, sir. Where did you firsthear
that this negro man Beebee had attempted to
ravish Miss Massey ? I heard it Monday some time.
Had you heard i t when yo u got up in the morning ?
No, sir. Had you heard it when you went to
breakfast? No, sir, I guess not. I don't want
you to guess ? I don't know that I did. When
do you remember first hearing it ? I can't say
for certain what time of the day I heard it, but I
heard it some time that day. Had you heard it
before you went to the market house ? No, sir,
I don't reckon I had. What time did you go to
the market house? Well, I was down there in
the early part of the day; I was down there again
afterwards. When did you first hear it; when
you first went down to the market house or when
you got down there to Archy's trial? Well, I
think I heard it in the early part of the day;
when I first started out. What time was that ?
before twelve o'clock ? Yes, sir. Who told you
of it ? I don't recollect sir. Can't you recollect ?
I can recollect some person that told me; I don't
recollect whether that was the first one or not.
who was it? Mr. Jordan Branch, a brother in
law of mine; he was the town constable that ar-
rested Archy. He told you of it; did you hear
it from any other person ? I suppose I did; I
don't recollect the name of any other person that
told me. You heard it before twelve o'clock that
day? Yes, sir. Did you anticipate that there
was going to be any difficulty with the populace ?
I didn't know that there was. Did you think
there was ? I didn't have any reason to think it.
You didn't hear any person say any thing like
that ? I heard nothing of that sort. From no
quarter? No, 6ir. Then I understood you to
say you didn't expect any thing of that sort ? I
didn't expect that there was going to be any dif-
ficulty ; I had no reason to expect it. When you
went down to the market house and stopped there,
what was your object in going ? My object in go-
ing down the street was my business; it was in
the street as much as any where else at that time.
Was your business in the market house ? Not
particularly. Did you go to the market house
for the purpose of attending to your business ?
No, sir. Why did you go to the market house ?
I went there because I was passing there. Didn't
you go there because this trial was going on ? I
stopped there for that purpose. Your curiosity
was excited about this trial, and you went there ?
Yes, sir, I was there before the excitement. How
long were you there before Archy was brought
up from the guard house? .Very few minutes.
What sort of a day was it, cold or warm ? It was
a tolerably cold day, I believe. Do you recollect
whether the sun was shining or whether it was
raining? I don't believe the sun was shining; I
can't say for certain, it seems to me it was not
shining. Your Impression is it was cold; could
you say whether it was a cloudy day ? I think
it was. At the time you got to the market house
you think it was cloudy ? I think it was cloudy
late in the evening, about the time the trial came
off, I can't recollect. Do you recollect whether
it was a particularly still day, or whether the wind
was blowing any? It was not blowing much, if
any. Was it blowing at all ? There might have
been a little air stirring, but I don't recollect
about it. You don't recollect whether it was
windy or not ? No, sir. I understand you, when
first went in you went into the east end of the
market house towards the east arch ? No, sir, I
don't recollect where I went in at. You don't
know which arch you went in at? No, sir.
Can't you tell now ? Ithink I went in at the east
end. That is your best impression? Yes, sir.
As you went into the east end you say you went
straight up through the aisle a little distance
and stopped ? Yes, sir. Did you stop to speak
to any one? I don't recollect that I did. Don't
you recollect any one that you spoke to that
day? Not while I was there; I don't recollect
the name of any person I spoke to. How many
steps did you take inside of the eastern arch be-
fore'you paused? I don't recollect. Did you go
as far as the bell rope ? I might, I don't recollect,
I don't think I did at that time. I understood
you to state distinctly you were in but a short dist-
ance into the eastern end upon your examination
in chief? I only went in a short distance at that
time. I am trying to get your position when you
first in, you moved back, you say, a short dis-
tance and stopped ? Yes, sir, I stopped lun-
derstood you in your examination in chief to say,
at that place you remained from the time you
first went there, till Archy came down. At or
about that place. Where you took you station
there you remained? Yes, sir, I think I stood
some where close there. How far was that place
that you first went to, and where you remained
the greater portion of the time, or all the time;
how far was that from the eastern arch; how
many feet ? Ten or twelve feet. Then I under-
186
PROCEEDINGS OF A MILITARY COMMISSION,
stand you to say you kept your position there
abouts till Archy came downstairs ? Yes, sir. It
was then that you moved from that position and
took your station on the bench was it ? Yes, sir.
All the time he was coming down, and until that
time, you were standing about ten feet in from
the main eastern arch ? Yes, sir. Which way
was your face turned towards the arch or towards
Hay street, when you first went in ? I can't say
for certain. Did you stand looking towards the
western end of the market house, didn't youlhave
any acquaintances there, you had any conversa-
tion with ? Yes, sir. Who were they; can't you
remember one ? I don't recollect the names now.
You were standing there throe quarters of an
hour without speaking to some one of your ac-
quaintances? 1 don't suppose 1 was, but I don't
recollect any particular name that I spoke to.
Can you recollect any general name that you
spoke to ? No, sir. You don't recollect a single
individual that you spoke to during that three
quarters of an hour, standing in that crowd of
twenty five people, as you represent it? I don't
recollect any name; I can't say for certain that I
did. You can't recolleet a single soul that you
spoke to up to that time? No, sir. I under-
stand you were standing in that same position
-when Miss Massey and her mother came down
stairs with Mr. Bond ? Yes, sir, I was some
where there about when they came down. Up
to that time you had ndticed no disturbance in
the crowd? No,sir. You heard no denunciation
of this negro; nobody was talking about that
thing ? No, sir. The crowd was there but it was
not talking about what Archy had done, didn't
express its indignation any way ? No, sir, not
that I heard of.' Yon heard nobody say even,
that it was wrong or that he deserved punishment
or expressed their horror or indignation in any
way or shap.e ? No person that I could recollect.
Did you hear any person ? Not that I recollect
of. Did you hear any such thing without being
able to name the person ? I didn't hear anything,
no, sir. The crowd was then a quiet crowd, it
was not even talking about what was going to
take place up stairs, or if it "was, they were talk-
in so low a tone that you didn't hear it ? I didn't
hear any of the plot that was made if there was
any. I didn't say about any plot Mr Lockamy,
I simply asked' if the crowd which was gathered
for the purpose of hearing something of the trial
apparently, weren't talking about the subject
matter of the trial? Not that I paid any atten-
tion to. You heard nothing of that sort? No,
sir. Were there no persons in that crowd that
vou knew? There were sorpe there that I knew.
"When you first went up I mean did it strike you
there was a good many strangers in town ? No,
sir. You have been living there for twenty seven
years, you know a great number of the popula-
tion there, don't you, by sight ? Yes, sir. When
you first Avent there who were there that you
knew. I saw Mr. Tolar under there, it mought
not have been when I first went there, and Sir.
Powers. Did you see Monk? Yes, sir, I
seen him under there. When you first got
there ? It mought not have been when I first
got there. Was it before these ladies came clown
stairs? I don't recollect, sir. Was it before
Archy came down stairs, between the time you
first went there and the time Archy came down
stairs ? I don't recollect, sir. when it was, after
Archy came down stairs and went out on the
pavement, I seen him then. Didn't you see him
before? I don't recolleet whether 1 saw him or
not. Did you see Tolar and Tom Powers before?
No, sir. I am speaking of the space of time that
elapsed between the moment when you first got
there and the moment when these ladies came
down stairs; during that time did you see any'-
thing of Ralph Lutterloh ? I don't recolleet that
I did. Did you see him at the market house du-
ring that'transaction? I don't recollect that'I
seen him there at the time. I understand yow
to say to the best of your recollection you didn't
see Lutterloh at the market house from the time
you first got there to the time Archy was killed ?
I don't recollect seeing him now. That is your best
recollection, that you didn't see him ? Yes, sir,
I think it is. Did you see Mr. J. G. Leggett
there? Yes, sir, I saw Mr. Leggett. What time
was it you saw him ? I saw Mr. .Leggett during
the trial; I suppose the trial was nearly over.
Did you see Mr. E. P. Pbwers there at any time?"
I don't recollect that I did. Your best recollec-
tion is, that you didn't see him there at any time
during that day? • Yes, sir, I think I did see him
under the market house there while Archy was
up stairs, I don't recollect what time it was; it
was some time before Archy came down. Did
you see John Maultsby there? No, sir, I hadn't
seen him at that time. You hadn't seen him when
Archy came down stairs? No, sir. From the
time you first went there, to the time Archy came
down stairs you hadn't seen John Maultsby ? If
I did I didn't notice him. Did you see Sam. Hall?
1 didn't notice him. I mean while Archy was up
stairs ? If I saw him I don't recolleet it. Did
you see Henry Sykes, the one-armed man ? I
don't recollect seeing him. Yon know him don't
you? Yes, sir. I understand, however, that you
do recollect seeing Tolar and Tom Powers, and
Leggett, and Ed. P. Powers under the market
house during the time Archy Beebee was up
stairs undergoing his preliminary examination ?
Yes, sir, I seen them. Do you recollect seeing
anybody else? I recollect seeing others, but I
cau't call their names. And your impression is
that there were about twenty-five people under
the market house when you got there ? I don't
know; I suppose there was about that at the time
the trial was going on. When you saw Tolar,
how long had you been at the market house ? It
was about the time I first got there. Where
was he standing ? At the time I saw him, he was
standing something rather under the market
house towards.the middle. About the middle of
the aisle ? Some where near the center. Was he
facing east or west ? I can't say?, Did you no-
tice how he was dressed ? He had on a shawl; I
don't know what sort of pants and coat; but he
had a grey shawl. Did you notice what kind of
a hat he had on ? He had on a black hat. Was
it a crushed hat or a tall heaver hat ? I don't rec-
ollect, I guess it was a soft hat. I don't want
you to guess. I don't know what sort of a hat it
was, but I think it was a black hat. Did he have
his spectacles on ? I didn't notice particularly.
Was his face towards yon or his hack ? I can't
say for certain, I know I saw him there. How
long did you keep him in your view, when was
the time that you remember that you didn't see
him ? I don't suppose I kept him iu my view
hut a very few minutes. So the last and only
time you saw him was before Archy came down
stairs ? I don't know whether I saw him any
more or not, I don't recollect that I did. Your
best recollection is that you did not ? I cau't say
that I saw him. Can't you say you didn't see
him any more? I can say, if I did I don't recol-
lect it. You say you don't recollect having seen
him any more after you saw him when you first
went up there, standing near the center of the
market house ? I don't recollect seeing him any
more. Was Tom Powers standing near Tolar
when you saw him and what time did you see
him; when you first went up? I can't say, I don't
think they were together when I saw them though.
CONVENED AT RALEIGH, NORTH CAROLINA.
1«J
Where do you think Tom Powers was standing
when you first saw him that day ? I saw him un-
tier the eastern end of the market house, I don't
know whether he was standing there or going
on. Before Archy came down ? Yes,sir. Where
was he standing ? Near Becky Ben's stall, I can't
say for certain where he was standing. You
simply know he was there? Yes, sir. Where
was Leggett when you first saw him ? Lcggett
was somewhere along the eastern end there.
Was he talking to Tom Powers? I didn't see
him talking. Were they together ? I don't think
they were together. Were they apart ? I didn't
see them together is all I can recollect. Then
you know they were gpart ? Yes, sir. You saw
them both? Yes, sir. One on each side of the
market house and the other on the other ? I
don't know that they were that way, but they
were not close together. They were both in the
east end of the market house ? ' I guess they
were. I beg that you won't tell me that you
guess any more; I want to know whether you
saw Leggett in the east end of the market house ?
Yes, sir. And you saw Tom Powers iu the east
end? Yes, sir. But you say they were not-to-
gether, as I understand you ? No, sir, they were
not together when I saw them. You 6ay they
were apart ? Yes, sir. How far apart ? . I can't
say. Did you see E. P. Powers iu the east end of
the market house ? I saw E. P. Powers under
the market house there, I don't think he was as
far down as the east end though. Was he stand-
ing near Tolar ? Not that I recollect of. You
didn't see him and Tolar and Lutterloh standing
together? Not that I recollect of, sir. When
you saw them they were not standing together ?
No, sir. Tolar was about the middle of the mar-
ket house, and Tom Powers and Leggett were
about the east end apart from one another, and
E. P. Powers was further back than either one
of those others ? Yes, sir. hen these la-
dies came down stairs Mr. Bond came with
them? Yes, sir. Did you look at the J,a-
dies? Yes, sir. How many persons do you
think there were in the market house when
the ladies came down ? I can't say sir. Was the
crowd any larger than it was when you first went
there ? Yes," sir. Twice as large ? I guess it
was more than twice as large, 1 haven't piucli
idea, a good deal larger though. Was the mar-
ket house pretty full in the east end of it ? Yes,
sir. Entirely full ? No, sir, not entirely. You
estimated it to be about twenty five when you
came there; now can't you give us your best es-
mate as to how many there were when these la-
dies came down stairs ? Perhaps thefe were fif-
ty, I can't say for certain for 1 was not paying
much attention to it. You directed your atten-
tion to it enough to say very decidedly that there
were about twenty five when you first went up
there? Yes, sir. Were there about fifty when
the ladies came down, can't you estimate one
crowd as well as the other? I suppose there
were fifty. Do you think there were more than
fifty? I can't say. Do you think there were less
than fifty ? I can't say sir. Your best estimate
of the crowd is about fifty? Yes, sir. Were
there any persons on the east end of the market
house, outside on the pavement? I think there
were. How many do you estimate that crowd at?
Well, sir, a good many, I can't say. As many as
there were in the market house? I didn't notice
them, I can't say, I knew there was right smart
out there. Was the pavement covered ? I can't
say whether it was covered or not. Can't you
give any idea as to the number, you can, no
doubt, but will you give any idea? I did'nt no-
lice them. You say there were somf persons
there? Yes, sir, a'good many; I can't say. A
good many; didn't you notice them distinctly ?
I didnt notice them particularly. You can't esti-
mate that crowd at all ? Not with any certainty,
there might have been 'fifty. There might have
been a thousand, what I want to know, is the
best estimate of a man who was there. I didn't
notice particular. You neither called them by
name nor remember them, nor put it down on a
piece of paper, but you saw the crowd and can
give an estimate ? 'I just saw them. You did'nt
see them distinctly? No, sir. You saw these
inside of the market house, better than you did
the crowd outside ? Yes, sir, Was any crowd
outside on the pavement when you first came to
the market house ? I don't know that there was.
Do you know that there was not ? No, sir, i don't
know that there was any tlnjre when I first came.
Did you notice any crowd on the pavement when
you first came ? No, sir. The only crowd that
you noticed when you first came was inside of the
market house, about twenty-five people ? Yes,
sir. When the ladies came down stairs you no-
ticed there was a crowd outside of the market
house, and a crowd inside? Yes, sir. Were
there any persons in the east end between you
and the arch, or were they all further inside of
the market house than you were ? I guess there
was some between me and the east arch. And
the crowd out on the pavement was in front of
you ? 1 was not looking out that way particular
ly. You saw the carriage outside? Yes, sin
That was standing right in front of the eastern
arch some twenty or thirty feet? Yes, sir.
Were there any people between you and the car-
riage ? Yes, sir. How many people? Eight
or ten. Scattered immediately between you
and the carriage ? The crowd on the eastern
end of the market I think was a little lower
down than between me and the carriage.
A little to your right? Yes, sir. So that the
main part of the persons that were between you
and the carriage were inside of themarket house ?
Yes, sir. When those ladies went out you saw
Bond go with them, and you saw David Cashwell,
Phil. Taylor, and Kobcrt Mitchell at the car-
riage, did any one else go .there ? Not that i re-
collect of. Do you recollect that any one else did
go there ? If they did I didn't see them. Did you
look at the carriage from the time the ladies went
to it, till they went off ? I don't know that I had
my eyes on them all the time. The carriage was
standing there about five minutes after the ladies
went out. It might have been five or a little
less. ■ During that time you don't pretend to have
had your eyes on it the whole time ? I can't say
that I was looking at it every moment. Who
went to the carriage first, of these three gentle--
men you have named, Cashwell, Taylor and
Mitchell? I don't know for certain which went
first. Did they go together? I don't believe
they did. Didn't you see Tom Powers go to the
carriage? I don't recollect that I did. Do you
recollect that you didn't ? If he went I don't re-.
collect it; I didn't see him. You didn't see
Capt. Tolar go to the carriage ? No, sir. Did
you see Bond come back from the carmage and
go up stairs again? I saw him wrhen he came
Irom the carriage. What became of him? I
can't say; I didn't notice. Did you say Maults-
by spoke to Bond ? No, sir. What were the la-
dies doing as they came down stairs, was one of
them weeping? A little J think. Was she weep-
ing loudly enough tor yon to hear it? No, sir;
she looked like she had been crying. Did she
have her handkerchief to her face ? I think she
had. Did she have a vail over her face ? I can't
say whether she had or not. Did you see any
marks of violence about her person? I don'
know that I did. You don't know; I don't
138
PROCEEDINGS OF A MILITARY COMMISSION,
know want my question answered in that way;
I must have a direct answer ? I can't say that I
did. Why not say no ? Well sir; I don't exact-
ly know; I might have seen things that I don't
recollect. Is your memory very had ? Yes, sir;
I am not very good to recollect; that is unless!
see it distinctly; it I do I recollect it. When
these ladies drove off did you see what became of
Mr. Mitchell or Phil. Taylor or David Cashwell ?
No, sir; I.didn't notice them. You were still
standing at the point you first stood when you
went into the market house ? About that point.
You hadn't moved far from it? No, sir; I hadn't
moved far from it. When the ladies drove off,
Beebee started down stairs ? Yes, sir. You say
as Beebee started down stairs you went over and
stood on the bench'* the east end of the bench
which is on the north side of the market house,
and you were fronting towards the steps as Bee-
bee came down? Yes, sir. That in that posi-
tion Becky Ben's bench was fully in your view?
Yes, sir. Did you see anybody standing on that
bench at all? No, sir. Do you say no one was
standing on it ? I can't say that there was; I
didn't see any person on it. Did you see that it
was vacant? I didn't notice the bench particu-
larly, I saw the steps sir. You can't say that
there was any body on it, and you can't say that
there was not any body on it ? I didn't see any
body. Do you remember that you saw the bench
at all ? No, sir. It was within your view; if you
had chosen to direct your attention to it, but you
don't remember noticing that bench at that time ?
No, sir, I don't. So that you can't say whether
any one Avas on it or was not ? No, sir,. I can't.-
There was a space of ground constituting the
aisle between you and that bench of Becky Ben's
wasn't there? Yes, sir. The width of the mar-
kethouse? Yes, sir. That was between you and
Becky Ben's stall ? Yes, sir. And you could see
that portion of the ground as well as you could
have seen the bench, couldn'tyou? Yes,sir. That
was within your line of vision, wasn't it?
Yes, sir. Now, sir, within that space any
where, did you see Mr. Lutterloh and Mr.
Leggett and Capt. Tolar and Mr. E. P. Pow-
ers standing there conversing together ? No, sir.
You saw nothing of that sort at that time? No,
sir. Do you say they were not there ? I didn't
see them there sir. You didn't see tbem standing
there; you didn't see any body on the bench, but
you can't say that the bench was vacant, and you
don't remember that these gentlemen were stand-
ing in the aisle a.t that time? No, sir. Bo you
remember they were standing there at all ? I re-
member seeing them, but I don't remember seeing
them together. I am speaking about the time
when the ladies had driven off in the carriage you
had changed your position and got on the east end
of the bench, which is on the north side of the
market house, and Archy was just starting down
stairs, now at that time did you see any of these
gentlemen that you have named, Tolar, or Leggett,
or Lutterloh, or Ed. Powers?. No, sir. Could
you have se en them if they had been standing in
that aisle and your attention had been directed to
them? Yes, sir. Was no one standing in that
aisle between you and Becky Ben's bench ? Well,
sir, I can't say, I guess there was, but I don't re-
collect now. I beg you won't guess, I must insist
upon it that if you can't answer the question you
will say so; you don't remember seeing these gen-
tlemen standing there at all ? No, sir. Either to-,
gether or apart at that time 1 No, sir. Well, at
that time, and just as Archy was coming down
stairs, did you see Tom. Powers? Not just at the
time he was coming down stairs. Who did you
say came out of the door first at the landing as
Archy was coming down ? I can't ray Avhich came
out first. You simply remember that the group
came down and Archy in the midst of it ? Yes, sir.
That in that group were Hardie and Faircloth, and
Wemyss and McGuire, and a few others? Yes,
sir, and Mr. Hornrine was one. You say nothing
was done to Archy until he got to the foot of the
Stairs? No, sir. Up to this time that we have
got Archy to the foot of the stairs in the market
Bouse, had you seen any weapons in anybody's
hand there? No, sir. Nor any knife? No, sir.
Any pistol ? No, sir. Any clubs ? No, sir. No
marks of any knife, pistol, about a man's person
like a protuberance in his breast, or back, or side?
No, sir. Did you see any belts ? No, sir. You
never saw a belt to which a pistol could be attach-
ed about any one that you remember? No, sir.
You saw no holsters ? No, sir. Nothing of that
sort that indicated the presence of arms up to that
time ? No, sir. When Archy got to the foot oi
the stairs nothing was done to nim still until just
as he went to turn out of the arch, as I understand
you? No, sir. You were looking there at the
time, weren't you ? Yes, sir, as well as I could.
He was the chief object of your attention at that
time? Yes, sir. And from the time he left thd
landing and got to the foot of the stairs and come
to the arch and was in the act of turning out of it,
you didn't see any thing done to him or said to
him ? No, sir. Didn't you hear the crowd say
when they appeared on the stairs - " there he is,"
" here he comes ?" Not that I recollect of. You
didn't hear any such expression as " there is the
damned rascal." Not that I recollect of. You
heard no expression of "rally boys?" No, sir.
You heard no expression at all that you recollect?
Not that I recollect of. Was the crowd perfectly
still ? They may have been moving about a little.
But they were making no exelamation ? No, sir.
You heard no exclamation as "kill Mm," "shoot
him," at that time? No, sir. He went to turn
out of the arch and you say at that time Tom
Powers grabbed him on the breast ? Yes, sir.
With which hand ? I think it was his right hand.
How was Powers standing, was he facing you ?
Powers was standihg with his back south, I think.
Are you pretty certain of that ? Yes, sir. Was
he standing right at the turn of the arch? Yery
nigh the turn. You think he grabbed with bis
right hand ? I think so, sir. Have you any de-
eided opinion about that ? No, sir, I have not, I
can't say which hand. Can't you now, by pictur-
ing the thing in your mind—it frequently helps a
man—by just picturing in your mind, and placing
the men, tell whether it was his left or right hand ?
I can't say which hand it was. Did you see any
knife in Tom Powers' hand at that time, in either
of his hands ? No, sir. You saw him catch at
the prisoner and say " I demand the prisoner ?"
Yes, sir. What happened then? The crowd
closed up together. You said before that the
crowd closed up; what do you mean bv that?
They gathered around him. Was it around Archy
and Tom Powers? Yes, sir. Were any exclama-
tions used ? I didn't hear any thing else. Y ou
heard no tvord except Tom Powers demanding him?
No, sir. When Tom Powers made this demand
you say to the best of your recollection it was " I
demand the prisoner ?" Yes, sir. Did you hear
nothing else ? No, sir. Did you hear nothing like
" by God I will have him, be is mine ?" I can't
say that I did, sir. You recollect hearing the
words to the effect, "I demand the prisoner?"
Yes, sir. And seeing the man grab at him ? Yes,
sir. And that the crowd closed up ? Yes, sir.
Did they close up very quietly? I didn't hear
any fuss particularly. I mean about the rapidity
of the motion; did they move like they were going
to a funeral when they closed up? I can't say.
They moved close up around Archy and Mr. Pow*
CONVENED AT RALEIGH, NORTH CAROLINA,
189
ers? Yea, sir. Don't you think they closed up
very quietly—there was no pressure? No, sir.
You didn't see any thing like that ? The crowd
just closed up around him. Who was in that
crowd? I can't say. Did you close up? No, sir,
-at that time I was on the bench. You didn't form
any of that crowd that closed up ? No, sir. Did
the whole crowd that was within your view close
up? No, sir, not all of them. Those that were
nearest the prisoner closed up ? I suppose so.
Don't suppose, I want to know whether it was so
or not ? I can?t say. Didn't you see ? I can't
say whether all that was nearest closed up or not.
You say there were some who didn't close up ?
Yes, sir. And you say there was some who did ?
Yes, sir. Did the greater part of them close up
or was it about half and half ? I suppose so- These
men that closed up did they come from a distance
or were they those that were nearest the prisoner ?
I think they were those that were close to the pri-
8oner. That was instantaneous with Powers mak-
ing this demand and the sheriff's reply ? Yes, sir.
And then the sheriff said what? He said "stand
back gentlemen," or "stand back men." Was
that all; didn't he say the man was his prisoner,
and he intended to keep him ? I don't recollect
that. Didn't he say he would protect the prisoner
as long as he was in his hands ? I didn't hear that.
You heard him say "stand back gentlemen" in
about the same tone of voice that you use now?
It might have been louder; it was, I guess. A de-
cided tone; did it indicate excitement? No, sir.
Just in a calm voice "stand back gentlemen?"
Yes, sir. Did he have any club ? I can't say that
he did. Did he make any motion with his hand
when he said "stand back ?" Yes, sir. Did he
have his hand upon any one ? I can't say that he
had, sir. Didn't you see him grab Tom"Powers'
wrist when he attempted to seize this negro ? No,
sir. Y ou saw nothing of the grabbing of the wrist?
No, sir. When he said " stand back gentlemen,"
what did Tom Powers do ? I only seen him for a
moment, that I recollect of; I seen Mr. Powers
when he demanded him, and after that I can't say.
You don't know what became of him after that
demand? No, sir. Was SheriffHardiespeaking
to him or the crowd when he told them to stand
back? He said "stand back gentlemen." , Was
that his expression? Yes, sir. Was his face to-
wards Powers or towards the outside of the arch ?
I can't say, sir. Beebee was between you and
Powers was he when Powers made this grab ? Yes,
sir. Which side of the boy was Hardie, was he in
front of him or behind him/ I can't say.
Do you know which way his face was turned;
whether it was to the outside of the arch or in,
when he addressed the crowd and said, "stand
back gentlemen ?" No, sir, I can't say. How
long a delay did it occur ? A momentary delay.
Then they got Archy through the arch and he
turned down with his face towards the guard
house, did he? Yes, sir, they turned down that
way, but I didn't see Archy at that time. Didn't
you see him as he passed through the arch ? I
saw him then. He was going towards the guard
house, wasn't he? Yes, sir. Wasn't his face
that way when you last saw him as he turned
out of the arch; I mean before he disappeared
from your view ? I can't say which way his face
was turned ? You saw him pass through the arch,
however? Yes, sir. Did you see Tom Powers
pass through the arch -after him ? It was just as
he passed.out that Tom demanded him. He was
in the act of passing out as Tom demanded him ?
Yes, sir. When he did pass out, did Tom go out
with the crowd? I can't say, sir. Were, these
other persons in the crowd who followed Tom
that were further lrom Beebee ? I can't say, sir.
Do you mean to say you can't tell whether there
was a single man in that crowd who was farther
from Beebee than Tom Powers, I mean in the
midst of that crowd that closed up, was Tom
Powers in the midst of it, or was he on the out-
side edge ? I guess he was in the midst of it.
And then the crowd passed out ? Yes, sir. And
you can't pretend to say whether Powers passed
out in the midst of it or not? No, sir. Where
was it you saw Monk with this knife ? He was a
little in the crowd after they passed out. Did he
pass out with the crowd ? I didn't see him when
he passed out, he was out when I saw him. And
that was after Tom Powers made the grab ? Yes,
sir. How long? Well, sir, it was a very short
time. Could you have .counted ten? About that
I reckon. What was Monk doing? He bad a
little old knife there. You noticed it was a small
one? Yes, sir, something about six inches long.
Handle and all 1 Yes, sir. What did he do with
it? He made a pass or two, cutting towards
Archy. Did he make one, or two, or three, or
four? I think he made two. Which way was he
cutting ?
(Represents, had it grasped in his hand, the
blade protruding beneath his little finger, and
striking with a downward stroke.)
How close was he 10 Archy when he wasstrik-
ing that way? Perhaps three or four feet. Was
be within reach of him ? No, sir, he didn't strike
him. I want to know whether he was in reach of
him? I can't say, sir. You say he didn't strike
him? Yes, sir, he didn't, I didn't see him strike
him. Did the knife pass close to him ? I can't
say. How can you say it didn't strike him then,
if you didn't see where it went? I can't say. You
swear positively it <^idn't strike him ? Yes, sir, I
didn't see it strike him. Did you see where it
did strike ? It didn't strike anywheres. Did you
see how far it was from Archy when he was strik-
ing ? I can't say, sir. How do you know it didn't
strike him ? Because I know it didn't strike any-
thing. If it didn't strike anything, you must have
seen the knife at the moment it come down, and
thus you can tell how far it was from ArcLy. No,
sir, I can't say how far it was from Archy; 1
couldn't see because there was a good many
around him. But you say it didn't strike hims
still? No. sir, I didn't see it strike him. You.
stated it didn't strike; I didn't ask you if ."you
didn't see it ? The licks I saw didn't strike him.
You say you didn't see where the knife struck?
It didn't strike anything. How do you know it
didn't strike anything; did you see it at the mo-
ment it came down ? Yes, sir. Now how far was
the point where it came down from Archv ? I
can't say, sir. You mean you won't say ? No, sir,
1 don't know; the crowd was so thick, and I was
not paying much attention. You can't say wheth-
er it was three, or six, or twelve inches? No, sir.
You won't swear it was not within three inches of
him? I think it was more than that. Do you
think it was more than six ? 1 think it was twelve.
You think it was twelve, you "might just as well
have given that in the first time. I could not say
for certain. I know you couldn't say for certain;
but you have to give your best opinion upon the
matter; you think it was about twelve inches
from him, and that it didn't strike him ? Yes, sir.
What became of Monk after this striking with the
knife ? I didn't see any more of him at that time.
Did you see Archy when Monk was striking with
tl|e knife? Yes, sir, I saw Archy. Wasitimme-
diately after that, that Archy disappeared, that he
went down as it were ? Yes, sir." Did you see
Archy trying to get away from the officers? No,
sir, I didn't. But you saw this man strike at him
with a knife, and immediately afterwards you
saw him disappear from Bight in the crowd ?
He went down pretty soon. I want to know how
190
PROCEEDINGS OP A MILITARY COMMISSION,
long? I can't say,sir. Was it immediately after the
man struck with a knife ? No, sir, they had got
a little further down then. A little while atfer
you saw Monk strike at bim with a knife, you
saw the man go down with the crowd—you don't
know what had become ot Monk in the mean-
time? No, sir, I didn't see. Monk. Now this
erowd which got close kpon the prisoners, when
Tom Powers made a demand for him, did it de-
sist the from the prisoner after it got outside of
the arch or did it still keep pressing on ? They
still kept pressing on. That crowd kept press-
ing on from the time they got close upon .the
prisoner when Tom Powers seized him till he was
shot? Yes, sir. Did you hear any exclamation
in that crowd about the time the negro went
down ; do you say immediately before he was
shot that he went down ? Yes, sir. Now at the'
he went down and between, that time and the
time he was shot, and between the time he left
the arch and that time did you hear any exclama-
tiou in the crowd ? No sir. Did you hear any-
body say "kill him, kill him"? No, sir.
Didn't you hear any bodysay "he will get away"?
No, sir. Did you hear a knife clash in the crowd
as it fell from a man's hand ? No. sir. Did you
hear knives struck by the policemen? No, sir.
Did you hear Sheriff Hardie or any of the police-
men say "men use your clubs" ? No, sir. Did
you see the policemen turn and flourish their
clubs and keep off the crowd? No, sir. Did
anything of that sort occur? Not that I seen.
Where were you at that time ? I was stepping
off of the bench. When, after Monk was using
the knife or before? About the time Monk was
using the lcnife. Did you go out by the north
pillar of the east arch? Yes, sir. And you say
you heard no sound, no exclamation, no shout-
ing, either kill him, or shoot him, or he will
get away; you heard no direction to the officers
to use their clubs; you heard no noise of clubs
striking; nothing clash upon the pavement,
and saw no struggle between the police and the
crowd? No, sir, I didn't see any clubs used.
Did you see any struggle between the police
and the crowd to keep the crowd back off of
this man? No, sir, I was too far off to see any
thing of that sort. Was there a continuous
crowd the point where you were at the north
arch of the market house up to the point where
Beebee was? No, sir. Did the crowd fill the
whole space ? No, sir, it was a little vacant.
How far did that vacancy extend in front of you,
before you come to the edge of the crowd ? I
can't say, sir; it may have been six or seven feet,
and it may have been ten. How wide do you
think that arch is; the main arch, from the north
pillar to the south pillar ? 1 can't say; it is fif-
teen feet I reckon. Did this crowd begin south
eof the south pillar or north of it ? I can't say sir,
where it commenced; I know close at me there
was an open space. Was there any body between
you and the crowd further out to your left and
rear? To my left I don't recollect sir. Was the
pavement pretty empty ? Rather to my left it
was. You were standing looking at the negro
and at this crowd and you say this crowd didn't
reach to you within six or eight feet? No, sir,
it didn't. That there was a vacant space on the
pavement behind the erowd ? Yes, sir. Was any
body standing there ? If there was, they were
scattered. Did you notice any person; isn'£ it
your, impiession that no person was standing
there ? I can't say, sir; I don't know—there was
no crowd that attracted my attention. Don't
you recollect Capt. Tolar was standing there in
that vacant space at that time? No, sir; I don't
recollect. Didn't yon see Mr. Leggett there?
No, sir. Mr. Lutterloh? No, sir. E. P. Fow-
ers ? No, sir. And your impression is that there
was a vacancy there, as I understand it, with very
few people standing there? Very few. You
think there were a few? I can't 6ay whether
there was any or not. You don't remember see-
ing any? No sir. 'But you have a distinctrecol-
lection of the point where the crowd ceased haven't
you; the crowd was thick up to a certain place ?
"Yes, sir, in front of me. You could pass to your
left; it was iu the same direction as you were
looking towards the prisoner? Yes, sir. And
you don't remember seeing Tolar, or Lutterloh,
or Ed. Powers or John Maultsby at that time on
the pavement behind the crowd ? No, sir. Well,
now, in this crowd that was pressing on to Archy
just before he was killed, did you see any body
that you knew ? I don't recollect that I did, sir.
Did you see anybody that you knew ? Pressing
on after Archy? Yes, sir. In that crowd that
was pressing on after Archy, I can't recognize
any person. Did you see anybody that you knew,
I will have an answer and the Court will enforce
it, did you see any one in that crowd that you
knew? No, sir, I don't know that I did. You
swear'positively in the presence of God Almighty,
that in that crowd of your neighbors that was
pressing there at that time, you didn't see a sin-
gle individual that you knew ? None but Monk,
sir. I understand you positively swear that yon
saw nobody but Monk in that crowd that you
recognized, and Tom Powers just before it passed
out of the arch ? Not that 1 recollect the names
of. Do you recollect the description of them
without the names ? No, sir. Do yon recollect
whether the crowd was composed of white men
or black men, wasn't it almost entirely of white
men ? Yes, sir. Did you see any black men in it
at all ? I don't know that I did. You can't rec-
ognize a siDgle acquaintance in that crowd ? No,
sir. How much space did they cover, about
twenty feet square ? Ten or twelve feet. There
were enough in it and were standing closely
pressed together to cover ten or twelve feet
square, and you can't name one single individ-
ual ? No, sir, I wasn't paying much attention to
that, not enough to tell the names. Wasn't your
attention very acutely excited at such a thing in
the streets of Fayetteville ? Yes, sir, but I wasn't
trying to see any particular person, I was just
looking on. Very well, you were looking on for
the purpose of seeing what was going on weren't
yon? Yes, sir. And you heard nothing you say
of any noise or exclamation, I bupposc your eyes
must have been very actively exerted, and now
you say you saw nothing except that confused
mass or crowd? I can't recollect any names, I
saw the crowd move on at that time, sir. You
say yon can't name any one who you saw in that
crowd? No, sir. You were still standing by
that south pillar when the pistol went off'? Yes,
sir. Was the wind blowing? Not.that I recol-
lect of, sir. Was it still ? I think it was tolera-
bly calm. You say just before the pistol was
fired, the negro raised his head up? Yes, sir.
Did you see where Sheriff Hardie was standing as
the negro raised his head up ? No, sir. Was
Sheriff' Hardie with him in the crowd? I don't
know, sir, I didn't see him at that time. Was
Wemyss with him in that crowd ? I don't know,
sir. Was Faireloth with him in that crowd ? I
can'ttell. Was McGuire with him? I didn't see
him at that time. Then the solitary object that
you saw was Beebee and Beebee's head just raise
up? I saw that. You saw nothing else ? I saw
no other face. You did see Beebee and the smoke
of the pistol? Yes, sir, I saw Beebee's head
raise up. All other objects were lost to your
view except these two? I don't recollect seeing
any other face. While r'ou were looking at Bee-
CONVENED AT RALEIGH, NORTH CAROLINA.
191
bee the pistol was fired was it? No, sir. Were
you looking at the point where the pistol
fired? No, sir. Where were you looking?
I can't say. Is it possible that there was
a crowd in front of you say in the very act of
taking the life of the prisoner, and your attention
was not attracted to the scene at all? I can't
say. Were you there, sir? Yes, sir, I was there,
but as to the names of any that were in the
crowd, I don't recollect. "Ton say at the very
moment when the pistol fired, you were not look-
Ing at the place where the smoke came from or
the man fell? Not at that moment; as soon as
the pistol fired, I looked in the direction of the
sound. Which way did you draw your eyes from
when you looked there ? I can't say which way,
I don't know, sir. You don't know whether you
were looking north, south, east or west? No,,
sir. You saw the smoke of the pistol? Yes, sir.
And directly after that you saw standing in the
same spot, just near the smoke, Samuel A. Phil-
lips with a pistol in his hand, which he was hold-
ing in front of him, and then returned to his left
breast? It was nearly where the smoke was.
How near ? It was somewhere near the place.
I want to know how near? I don't know, sir.
Can't you say within six feet? Yes, sir, it was
within a foot or two. Now you are much easier
iu coming at that estimate than you were before
at any other ? I want to answer them all as nigh
as I can. Within about twelve inches of where
you saw the smoke you saw Samuel Phillips
standing with a pistol in his hand? As nigh as
I can say. Who was standing close to Sana Phil-
lips? I don't know, sir. You saw him? Yes,
sir. You recognized no man in that crowd up to
this time, but you saw Sam Phillips immediately
after the pistol fired and you recognized him dis-
tinctly? Yes, sir. You recognized him with a
pistol in his hand ? Yes, sir. You saw him hold
if up ? He held it up for a moment. What was
he doing with it—wasn't he taking the cap off?
I didn't see him do it. Didn't you see some
smoke come from the muzzle, or tube ? No, sir.
You didn't see him rubbing it with his thumbs
to get the signs of smoke ofl ? No, sir. He
was just holding it up with one hand? Yes,
sir. That was the first time you saw
him that day? The first I recollect of.
Was that the last time ? No, sir. Where did
you see him next ? At his store in the evening.
Was that the last you had seen of him at the mar-
ket house? Yes, sir. Did you look at him at
the time he had the pistol? "Not more than a nio-
ment. And from that momentary glance you es-
timate the distance he was from the point where
the pistol fired to have been about twelve inches;
you concluded at that time, then and there, that
Sam Phillips had fired it? At that moment I
thought so. Where did you ever speak about it
and to whom, knowing that this man had per-
pet-rated a crime, a felony in the face of the day
and before the law; to whom did you report it ?
I never reported it to any person. When did you
first mention the fact that you knew it ? I don't
recollect, except to James Atkinson, two or three
wreeks ago. Had you heard that Sam Phillips had
turned States evidence before you related this to
James Atkinson? I heard. Answer me, had
you heard it? I think I had. Don't you" know
you had? Yes, sir; I know I had. Whynotan-
swer directly ? I heard about the same time that
he hadn't turned State's evidence. After you had1
heard that Sam Phillips had turned State's evi-
dence you went and told it to James Atkinson ?
Yes, sir. Did he ask you what you knew about
this transaction ? I don't know whether he asked
me or not. Who told you that Sam Phillips had
turned State's evidence, James Atkinson? No,
sir; he didn't tell me. When did you talk about
it? I don't recollect. I want to know if that
was the subject of conversation at that time?
No, sir; I don't thiuk it was. You say it was
not ? No, sir; it was not. Nor hadn't been im-
mediately before that ? No, sir. Now how long
before you gave this information to Atkinson,
did you know that Sam Phillips had turned State's
evidence ? I can't say for certain sir; a week or
two. The first time you mentioned it. was to
James Atkinson two or three weeks ago"? Yes,
sir; about two weeks ago. When were you sum-
moned? Monday. Are you a Mason, sir. No,
sir. Do you know Capt. Tolar ? I know him by
sight sir. Is he an intimate acquaintance of
yours ? No, sir. Are you any connection of his ?
No, sir. Are you any relation of James Atkin-
son? Yes, sir. Well, sir; what is the,relation-
ship? We are brothers in law. Do you believe
you are bound to tell the truth upon your oath
here ? That is what I want to do. You think it
is perjury if you don't tell it? Yes, sir. You
have no idea beqause it is a Military Commission
that you are not to tell the truth ? No, sir. You
feel as much bound to tell the truth as if you
were before an ordinary Civil Court ? Indeed I
do; I don't wish by any means to tell anything
else. After this pistol fired at what place did
you see Tolar in the crowd? any where? No,
sir. How long did you stay after the pistol fired ?
I left immediately. I understand you to say the
only time you saw Capt. Tolar that day was when
you first went into the market house ? A short
time .afterwards. When he was standing near the
center of the market house ? Yes, sir. You saw
him at no other time? No other time that I
know of. You can't tell who was near Phillips
when he fired that pistol, you can't tell who was
nearest Beebee in the crowd that was pressing on ?
No, sir; I can't tell; I was not paying at-
tcntion. You saw the man who tired that
pistol ? No, sir, I didn't And you never saw
Capt. Tolar afterwards ? No, sir." Did you see
Lutterloh' afterwards. I don't recollect that 1
did. Did you see him afterwards ? I don't re-
collect sir. Did you see Leggett afterwards ?
Yes, sir. Where was he ? He was down at our
place. I mean on the ground before' you went
away ? No, sir, I didn't see him. Did you see
E. P. Powers afterwards or about the time the
pistol fired ? No, sir. Did you see Henry Sykes ?
No, sir. Sam. Hall? No, sir. John Mauitsby?
I saw John Mauitsby after the pistol fired. Be-
fore you left the ground ? No, sir, after I went
away and come back. How long did you stay
away when you went away ? About half an hour.
And come back and found John Mauitsby ? Yes
sir. Just after the pistol fired didn't you hear
any body in the crowd cry out who did it?
No, sir. Didn't you hear anybody in the crowd
say " Capt. Tolar killed him" ? No sir You
heard no exclamation of that soit? No, sir.
Didnt you see that the people expressed great in-
dignation that a man should be killed, that way
in"the street ? Not that I recollect of. You
heard no expressions of surprise, indignation or
even inquiry as to who had done it? Not that I
recollect of. No name ? No, sir. Did you see
any effort to arrest the man who had done it ?
Yes, sir. What was it? They had a trial there.
I mean straight away when the felony was com-
mitted there in the presence of the crowd, did
you see anybody attempt to make an arrest, out
of the whole crowd? No, sir, I didn't. Are you
deaf? No. sir. You hear distinctly don't you ?
Yes, sir, Oh yes, sir.
Re-direct Examination, by the Counsel for the
accused.
I understand you to say, sir, that just before
192
PROCEEDINGS GE A MILITARY COMMISSION,
the pistol fired, the crowd was thick and dense
between you and the negro man, Beebee? Yes,
sir, it was thick between me and Beebee. And in
motion? Yes, sir. And that though yon saw
many persons there, and perhaps persons whom
you knew were strangers to you, that yet nothing
having occurred up to that time to particlarly
excite your attention, you didn't charge your
memory with it, and don't now remember their
names; is that the statement I understand you to
make? Yes, sir, that is it.
Counsel for the prosecution: I desire that the
Counsel will please let him make his own state-
ments.
Re-direct Examination resumed.
Just make it in your own language ? After the
prisoner was demanded, 1 don't recollect the
names—I didn't pay attention enough to recollect
the names of persons—of course there was men
there that I would know, but I don't recollect
their names.
Counsel for the accused: I think that is the
the substance of the statement I made.
Counsel for the prosecution: I simply didn't
want you to make a speech for him.
Re-direct Examination resumed:
What was your reason, or reasons for noticing
and particularly charging your memory with the
tact that Samuel Phillips was there ? I seen him,
1 am very well acquainted with Mr. Phillips, and
1 saw him standing there, and I noticed the pis-
tol. Then your only reason for noticing Phillips
particularly and charging ypur memory with his
being there was the fact of his having a pistol ?
Yes, sir, that was the cause of my noticing him
particularly. Was there no other men except those
you have named as having charged your memory
with, Monk and Sam. Phillips, was there no oth-
er men in the crowd that you saw with weapons
that day ? No, sir, with the exception of Monk's
knife and Sam Phillips' pistol. And I understand
that your only reason for charging your memo-
ry with these two was the fact that they had
weapons in their hands? Yes, sir, that is the
only reason. You were asked just now, sir, if
you had made this statement to James Atkinson
before you heard that Phillips had turned State's
evidence; I understand you to say (if I don't
understand you correctly, correct me, sir,) that
about the time you made this statement to At-
kinson, that you had heard both ways; first, that
Phillips had turned State's evidence, and then
that he had not turned State's evidence ? I was
at Sam Phillips's house at a prayer meeting, when
John Morgan told us positively that Calvin had
been here, and Gen. Avery had told him posi-
tively that Phillips had turned State's evidence.
So at the time you told this to Jim Atkinson, you
had heard both ways, and you didn't know which
way was true at that time—whether he had turn-
ed State's evidence or turned traitor, whether he
had not done so ? No, sir, I can't say for certain,
I heard it both ways at that time.
Questioned by the Judge Advocate:
You had heard at that time that Samuel A.
Phillips had been released from prison? Yes,
sir. You knew at that time he had been releas-
ed, did you not? I just knew it from what 1 had
heard. You had heard it from those whom you
believed ? Yes, sir, of course.
Sebastian Abet, jr., a witness for the defence,
having been first duly sworn, testified as follows:
By the Counsel for the accused:
What is your name? Sebastian Arey. Your
age? Fifteen years, on 20th next December.
Where do you live? At Fayetteville. For how
long? Ever since I was born. What have you
been doing? Nothing but going to school; that
is the last thing 1 have "done. Were you at Fay-
etteville on the llh of February last? Yes, sir.
In the market house ? Yes, sir. At what time
do you get there on that day ? Between three
and four o'clock. What occurred ou the 11th of
February? I suppose there was a nigger killed
there. What day of the week was it ? I don't
remember. You understood a negro was killed
on that day, you were present at the market
house, at what time did you arrive there ? Be-
tween three and four o'elock. You went there
from what point ? From Maultsby and Russell's
store, with Mr. John S. Maultsby's sou, his name
is William Maultsby. Where does he live ?
About the upper part of the town of Fayetteville,
on Mumford street. How far from the market
house? I suppose about- half a mile. When
you got there, was there anybody present at the
market house ? Yes, sir. How many? About
twenty-five. In or outside? In and out togeth-
er. Had Archy Beebee been carried up into the
market house at that time? No. Where did
you go first—what part of the market house?
South-east corner. Where did you take your
station ? I went into the market house, and af-
terwards came out and sat on the bench ? Where
is the bench ? It is in the small arch, at the east
end of the market. At which side of the main
arch ? On the right hand side as you go out.
You took a seat on a bench in that arch? Yes,
sir. Did you get on that bench from the in or
oirfside? From the outside. Were you sittiug
or standing there? Sitting down. Were you
there when Archy Beebee was carried up there ?
No, I had gone to Mr. Draughon's cor-
ner. Where did you take your station then ?
I went back to the same corner fof the market
house. Did you sit down or stand up? Sat
down for a quarter of an hour. In the arch?
Yes, sir. In the same place as before ? Yes, sir.
Who did you see there that you recognized, in-
side or outside? I don't exactly know who, but
I saw Captain Bully there; I remember him be-
cause he was drunk. Do you notice here any
parties whom you saw there ? I don't remember.
Neither Tolar, nor Tom Powers, nor Monk Ju-
lia? No. Could you see the place? I could see
the steps. Leaning from the side you were on,
or the opposite side ? From the side 1 was on,
I could not see any farther than the door. The
door at the landing ? Yes, sir. You took your
station there for about fifteen minutes? Yes,
sir. Did you leave there before Archie Beebee
was brought down? Yes, Capt. Bully was there,
and I went round to see what he had to say.
Where did you go then ? I staid right at the
back of the arch until he was brought down.
Were you there when he was brought down?
Yes, when they brought him to the door. Where
did you go then ? Got upon the bench. As soon
as you 6aw them bring him down, you took your
station on the bench? Yes, sir. Did you see
Miss Massey brought down ? Yes, sir. Who was
with her ? Mr. Bond and her mother. Did you
notice Miss Massey, what she was doing? She
looked like crying. Had she a handkerchief to
her face ? Not that I know of. Did you see the
carriage? Yes, sir. Where did it 6top? Right
in front of the east end of the market. How far
from the main arch ? Ten or twelve yards I
guess. Did it stand there all the time, or was it
moved after it was driven up? Didn't notice
about that. Mr. Bond and Mrs. Massey went to
the carriage with Miss Massey? Yes, sir. Did
you see anybody else go there? No, Didn't
you notice anybody else ? I can't say for certain.
How long did it remain after they went unto the
carriage? I don't know, I wasn't noticing over
there. You didn't notice when it was driven off
you say? No. As I understand you then, as
CONVENED AT RALEIGH, NORTH CAROLINA.
193
Boon as you saw the negro brought to the door,
you took your stand at the same place as before,
on the bench in the small arch, at the eastern
face of the market house ? Yes, sir. Now tell
us what you saw from the time that Archie first
made his appearance, until he reached the arch ?
Well, the Sheriff came -down before him with
Faircloth and Wemyss, the policemen, the Sher-
iff came first. How was Wemyss standing as re-
gards the prisoner ? He had him by the thumb
with a twitch. Which thumb was it ? The right
thumb. On which side was Wemyss standing?
On the right of Beebee. Who else was with him?
Faircloth. Was there nobody else ? I think
there was. Who ? Maguire came along down
behind. Were the others policemen? Yes, sir.
Was any demonstration made as they came down
the steps ? No. As they reached the floor was
there any demonstration made ? No. What was
the first demonstration you saw made towards
the prisoner? I saw a crowd rush up to-
wards the prisoner? Explain to the Court
what your position was at the time. I
was standing on the beach, leaning against the
south part of the arch; was leaning against the
bar at the south part of the bench. Inside or out-
side ? Outside the bar. On which side did you
have your head ? Outside. Did the party, includ-
ing the prisoner, turn to the right hand or to the
left? The crowd rushed upon them. But what
direction had they turned to ? South, to the right
band. You mentioned some excitement, what was
the nature of it ? Looked as if they were trying
to take him from the policemen. How many ? I
don't know. Did you see more than one excited ?
There was such a crowd I couldn't say whether
there was more than one or not. What was the
evidence, what did you see that made you think
there were some trying to get hold of him ? I
heard a noise and saw a rush made towards him,
and heard the sheriff tell them to hold back. Any-
thing before that ? No, sir. Not such a cry as "I
demand the prisoner ?" No, sir. What did the
sheriff do? I heard him say " stand bark gentle-
men." Did they stand back or press on ? Pressed
on. What did they do? Nothing, at that time.
How many ? I can't tell. Was the crowd thick?
Pretty thick, and kept coming up continually.
How large a crowd was there then in front of the
market house; how many do you think? I think
there were over 50 outside and inside the market.
How much over 60 ? I can't tell. You can't say
you think there were as many as 60 ? I can't tell.
The crowd was thick and you cannot tell how
many were pressing upon the prisoner ? I cannot.
Did. you see any body with a hand raised or a
weapon of any kind ? 1 saw some one with a knife
as I was coming out of the arch. Whose hand
was it? 1 don't know. Did you see the man
plainly ? No, I just saw the hand with the knife
in it. You only saw one hand with a knife; how
many hands were presented towards the prisoner ?
I don't know. More than two ? I don't know;
can't say. Are you certain that you saw as many
as two ? I can't be certain. In what position
was the hand you saw the knife in ? He had it
down to his side. What was he doing with it ?
He had it in his hand. The blade protruding
from which side of the hand ? The inside. Which
band ? I don't know. How long a blade did the
knife have? I don't know; two or three inches
long I suppose. Was any effort made by the man
that held the knife, to strike the prisoner? I
never saw him any more'; the crowd was all rush-
ing in. Did you see any other weapon besides
that knife ? Not at that time. Mr. Arey, how
came you to see the knjfe, without being able to
see the face of the man that held the knife ? He
was in the crowd and I just seen it through the
crowd, I didn't notice about his face. You were
looking along the side of the market house at
that time. Yes, sir. Were there many persons
between you and the person who held the knife ?
About a dozen. Was your head higher, or on a
level, or below the man who held the knife ? I
was standing on the bench. How high is it?
About three feet from the pavement. You were
standing up? Yes, sir. What's your height?
About five feet and a half. You say you don't
know what prevented you from seeing the hand
that held the knife? 1 didn't look to see; the
crowd was thick. That was the only weapon
you saw at that time ? Yes, sir. Were any cries
being made just at that moment? That was
about the time I heard the Sheriff cry out " stand
back gentlemen." I saw the knife about that
time. You heard no other cries after that? Not
that I know of. Well, what occurred next ?
Well, the prisoner got to the edge of the little
arch—the north edge—and the crowd kept rush-
ing on; at last he got down on his all fours, and
he got most up again when he fell again. How
low down did he go at the first stumble ? On his
knees. He was then at the middle of the small
arch? Yes sir ; and when he stumbled his head
was about even with the level of the arch. Who
had hold of him at that time ? Wemyss, Faircloth
and the Sheriff. Where was the Sheriff? At his
back. Did you notice at what time the Sheriff
got back of the prisoner? No, at the time begot
to the middle of the arch 1 noticed he was back.
At the middle of the arch you say he stumbled
again ? He didn't stumble, but was about down.
He had been down on his all fours and hadn't re-
covered himself. Where was Wemyss when he
came on his all-fours ? He had hold of him by
the thumb. How close were you to bim ? I was
on the bench. How close to Beebee? About
three or four feet. How far was he from the wall
of the market house ? About three or four feet.
Where was Wemyss then? On the right of the
prisoner. And Faircloth; where was he? Didn't
notice; he was on the far side of him from me.
The Sheriff was behind at that time, Oan j ou
explain where, was he on tlie'rigkt or left at "the
time ? I can't say. How close was he to him ?
He had hold of him. By the collar? Yes.', By
the back or front? About here as well as I can
recollect. (Witness here placed his hand upon
his coat collar at a point quite near the back of the
neck.) Did you notice whether Beebee had on a
hat or not? No; 1 didn't notice; I don't remember.
Who else did you notice about the prisoner at
that time ? There was a big crowd around him.
Did you notice anybody in particular ? No, sir,
I was just noticing the crowd and that was about
all. Were there many in front of the prisoner at
that time ? No, but they were gathering in front
of him. How many between • where you were
•standing and the prisoner ? I cannot tell. You
were within about four feet from him ? Yes, sir.
And you cannot tell how many were betw'een
you? No. He had then fallen on bis all-fours in
the middle of the arch; what did you next no-
tice ? That Phillips had a pistol in his hand.
Where was he standing ? To the rear and left.
How far from the prisoner ? About seven feet.
On or off the pavement ? Somewhere about the
»'c?dge; I could not see whether he was on or off.
.What was the position of the pistol where you
first saw it? I saw him put his hand in his bo-
som, or under his coat. What did he do with
the pistol after be took it out? I saw him - with
the pistol, and I got down from the bench, and
in front of the arch where Phillips was. Did you
see him cock it? Yes—no, I didn't see him cock
it, but I saw it cocked. About how high was he
holding it? About so high.
194
PROCEEDINGS OF A MILITARY COMMISSION,
(Witness here placed his hand and arm in posi-
tion to suit the words, bringing, his hand to the
height of the shoulder, and having it at a distance
from the shoulder of about eight or ten inches—
the same position, or nearly such, as would be
taken by a person about to discharge a pistol.)
How was the pistol pointing, with reference to
you at that moment ? It was pretty much poin-
ted towards me. Well, how was the prisoner to
you and Phillips, between you, or on one side or
the other? Near about between. And the pis-
tol was pointing in your direction ? It looked
like it. What did you then do ? I got off the
bench. Jumped down? I sort o'jumped or
swung down. Which way did you jump ? Got
in front of Beebee. Did you run or walk, or
were you thrown there in getting down ? Well,
the crowd kind o'shoved and I just got there
somehow; I was trying to get out of the crowd.
Did you hear the pistol fired? Yes. Did you
you see it? Part of it. How much of it did you
see? The muzzle of it. And you heard it ? Yes,
sir. Did you see any evidence of the discharge
of the pistoldid you see the flash ? I did, sir.
And the smoke ? Yes, sir. How far was the pis-
tol from the place where you had seen Phillips ?
A little closer than when I first saw it. Was it
closer or not- to the prisoner ? It was closer to
him. What was the position of the prisoner at
the time you saw the pistol in Phillips' hand?
Well, he was then looking about south east.
Was he erect, or down, or getting up when he
shot at him ? Just up. How was he when you
jumped ? Down on his hands and knees. Did
you see him rise ? Yes, sir. Where were you at
the time ? On the pavement. How far from
him ? Close enough to have touched him. How
long after you got down from the bench did you
see the pistol fire ? About a minute or so. How
many could you have counted, think you ? Oh,
I don't know. Can you say whether it was more
or less than a minute ? No, I can't come any
nearer to it—but just before he was shot I heard
some one holler out " shoot him." Did you see
or hear who said " shoot him " ? No. Did you
recognise the voice or see the person? No.
That was just before you got down from the
bench? Yes, sir. Was anything else said at
that moment ? No. Not immediately before it ?
No, not that I know of. What were police We-
myss and Faircloth doing at that time ? They
had hold of him. Where was the prisoner at the
time this holler of " shoot him " was heard ?
,He was down. Did you, or did you not notice
him making any efforts to getaway? Well, it
looked as if he was trying to get away on account
of being scared of getting killed. Was that about
the time some one said " shoot him " ? Yes, sir.
That was just before you got down from the
bench? Yes, sir. And you had got how many
steps from the bench when you heard the pistol
fire ? About two steps. In what direction did
these steps take you, right or left ? Straight for-
ward. You were looking which way when Jyou
got down ? To the east. Which way was your
lace after you got down ? It was to the east.
Did you go directly straight forward or a little to
the right or left? To the right if anything.
That took you in front of the prisoner, and with-
in reach if you had hel d out yo ur arm ? Yes. At
that moment you heard the pistol fire ? Yes, sir.
How much nearer was it now than when you saw
it on the bench ? Not much nearer, not so much
but that a man could have got up that close in
the time. Had Beebee moved forward from the
time you saw the pistol, or did he merely rise
from where he was standing ? He merely rose
•And the sheriff had him by the back of the neck?
Yes. And the pistol was a little nearer thau when
you saw him put up his hand ? Yes, sir. How
close was Phillips' hand to the prisoner; you
say he was standing seven feet from him "; but
how far was his hand from his head? About four
or five feet, And when you saw the smoke and
heard the report the pistol was nearer than when
you first saw it in his hand? It was nearer.
Could you say how much? About two or
three feet, I should think. What else did you
see after that—what next occurred ? The next
thing I saw the nigger fall. Which way did he
fall—with this head to the market house, or in
the other direction ? About towards the market
house. How were bis feet as he fell ? About
east or somewhere in that direction. How far
from the edge of the pavement ? I can't say for
certain, but my opinion is that one foot was off
the pavement. The foot that was off the pave-
ment was under the leg of the foot that was ®n,
is that so ? Yes, sir. Did you hear any crie3 af-
terthe shooting? I beard some one say "the
damned rascal is dead," or something like that.
Did you see who said it? No. Who-was nearest
to you when yo»u had reached the position in
which you were standing where the prisoner
was shot ? The only one I know was Jim Doug-
las. At which side of you ? To my right side.
How far from you? About right against me,
about the edge of the pavement. Whither was
he off or on? I didn't notice, can't tell. Did
you hear any cries as to who shot him ? No,
Did you see Phillips after the shot? No. Did
you see Captain Tolar at the time of the shoot-
ing? No. Did you see Tom Powers? No.
Did you see Monk Julia? Yes. Where was he?
To the south. In front or rear of the prisoner?
To Ms face, after the fall. Are you acquainted
with Tolar and Tom Powers ? Yes, sir, I know
Mr. Powers when I see him, but I didn't know
his name. You had seen the man whom yoa say
you know to be Tom Powers, but you were not
acquainted with him at that time ? Yes, sir.
Were you acquainted with Captain Tolar at fhat
time ? Yes, sir. Did you see Captain Tolar af-
ter you saw Beebee come to the door of the
stairs ? I never saw him that day as I know of.
Did you see Tom Powers that day? Not that I
know of. .Had you seen Monk on that day ? I
saw him in the market house. What was he do-
ing ? Walking along. What became of you af-
ter the prisoner fell ? I started for home—went
as far as the other part of the market house, and
staid up there until it was about time for them to
hold the jury, and then I left and went home.
Did you stop on your way home? I don't re-
member. Did you see Phillips after the shoot-
ing? No. Did you look to see who shot him?
No. Where did you look as the prisoner fell.
At him. Are you a relation of any of the pris-
oners here ? Mr. Tolar is some distant relative
to me, hut not close to me. What is it ? About
first or second cousin to mother- First or second ?
I don't know which. Are you related to any of
the witnesses that have been examined? No, sir.
Are you a, relative to Squire Arey who has been
examined ? He is my grand father. Are you re-
lated to Lockamy ? Sfo. Are you related to any
of the witnesses for the prosecution? No. To
Hendricks? No. To Porter? No. Did you
ever tell any body else about the matter before?
I went home and when speaking about it I was
told I had better not have any thing to say about
it. When was that? The day it was done; I
was told it didn't concern me, and I had better
keep it all to my self. Who told you ? I don't
remember exactly, some people about th ere. Some
of the folks at home ? No, some neighbors, don't
remember who they were. And you have not
said any thing about it 2 No, I wag told I might
CONVENED AT RALEIGH, NORTH CAROLINA.
195'
get myself into a scrape, or something of that kind,
«o I kept it to myself.
Cross examined by Counsel for prosecution.
Did you say your mother was a first cousin or
second of Capt. Tolar, you don't know which ? I
don't remember.. Are you any relative of John
Haultsby's ? No, but I am of John Maultsby's
uncle by marriage, but no relative to him. To old
John ? Yes, sir, he is^ my uncle by marriage, he
married my mother's sister. Jno. Maultsby's wife
is your aunt then? Yes. sir. Is young John
Maultsby a son of your aunt? Yes, sir. Then
John Maultsby is your first cousin ? No, his uncle
is only uncle by marriage, he married my aunt.
Do you know John Maultsby under arrest at Fort
Macon? Yes, sir. What kin is your mother to
him? None at all. Do you know Henry Sykes;
any kin to him? I know him but he is no relative
of mine. Then the only relationship you know of
is that your mother is cousin, first or second, to
Maultsby? Yes, sir. What time of day was it
when you went to the market house? Between
three and four o'clock. You went before Archy
was brought out of the guard house ? I was going
by there and heard about this things I wanted to
see the nigger, so 1 stopped to hear the trial.
You were going by you sav«nd you thought you
would stop; what induced you to stop, was there
any crowd there? Yes, a right smart crowd.
What caused you to stop at the market house ? 1
wanted to see what nigger it was. From curiosity
connected with this affair ? Yes, sir. When you
got there you found Archy hadn't come, so you
moved down to Draughon's corner ? Yes, and as
they came I came behind them. And you took
your station at the east front of the little south
arch; you sat down there ? Yes, sir. As Archy
went up stairs ? Yes, sir. Did you remain until
he came down? No, I sat until Capt. Bully came
up. Who is he ? J don't know who he is, that's
al 11 know of him. Did you get off on the outside ?
Yes, my legs were hanging outside. Now, this
bench is about three feet from the ground, and up
above that bench there is a bar, how high is that ?
I don't know. When you were standing on the bench
could you reach it ? Yes, even when setting down
Did your head reach it when you were sitting
down ? I don't remember. Did it not inconve-
nience you when.you were sitting down/ Well, I
was a sort of leaning over. That was not in your
way ? No, sir. You didn't go inside the market
house did you, when Archy went up ? No. You
saton the seat until Bully came along? Yes, I
went np to the big arch and staid in it. Near the
south end? Yes, sir. With your face to the
south side ot the arch? Yes, sir. Could you
see the steps from there? Yes, if I looked.
You remained there until Miss Massey came
down stairs? Yes, sir. Did you see .any one
■come down stairs before she did ? No. Before
Mr. Bond and herself came down the steps, didn't
anybody come down ? Don't remember. Before
Mr. Bond came down with Miss Massey, didn't
he come down alone ? I don't recollect. During
the time you were standing in the arch, before
Archy came down, or before Mr. Bond came
down, whom did you see in that crowd ? I saw
Alonzo Birket. Did you see Sam Phillips then ?
No. Did you see Tolar and Leggett and Lutter-
loh standing in the middle of the arch within a
very feet of you ? • No. Did you see Lutterloh,
Leggett, Tolar, or Powers standing within a few
feet of the market house, in front of you? No.
Don't you remember a single soul you saw? I
saw Alonzo Burkett there and Capt. Bully. Was
Bully 6tandiDg in the arch with you ? He was
standing with his back to the south part of the
arch; we were joking together, there were a num-
her of boys of us together. Did that joking con¬
tinue until the ladies came down stairs? Yes,
sir. So that you were chiefly concerned in that
jocose conversation ? Yes, sir. Was the crowd
perfectly still; were they not talking at all? I
didn't notice any of them. Your attention was so
much taken up with Capt, Bully that you did not
notice the crowd much? You don't know how
many people were there? No. And you don't
now know anybody but Capt. Bully, Alonzo Bir-
ket, and some other boys ? No, I saw others
then that were not talking to Bully. Who ? I
saw Jonathan Hollingsworth. Did he have a
weapon ? He had a pistol buckled around his
waist outside his coat. What became of him ?
I saw him about three several times. Did
you see him there when the ladies came down ?
Yes, sir. Where was the last you saw of him?
About the time the ladies came down. What
was he saying or doing ? He came up by the
right hand side and went under the market house,
hut stopped about the middle of the market.
To whom did he speak ? I didn't notice. lun-
derstand you to say that from the time you went
into the arch until the ladies came down stairs,
you saw neither Lutterloh, nor Leggett, nor Pow-
ers, nor Sam Hall, nor anybody you knew, but
Bully? I saw John Maultsby. Where was he
standing ? He was sort o'leaning on the bench.
Was he speaking to anvbody ? Didn't notice that
he did. Did you see Hollingsworth? No. Did
you see Sykes or Hall? No. Nor Ed. Powers?
No. Nor Leggett ? No, sir, I did not know him
anyway. Nor Lutterloh ? No. Did you see
Tom Powers there? No, the only way 1 know
Mm is by his having had the small-pox; but I
would have known him if I saw him in the crowd.
These ladies came down and Mr. Bond with them
Did you leave to move out of the arch to give
-them room to pass ? I moved out. What be-
came ot Bully ? I don't know. When you made
way there, did you and Bully move off" together.
No. Where did you go? I went back to the
bench. Still with your legs hanging outside ? I
was standing np, on the bench. When you first
went up there you took your station on the
bench; afterwards you left and went to the eas-
■tern arch trifling with Bully, and when the ladies
came down stairs you stepped back to the arch,
and then staid at that arch? Yes, sir. Well,
when you got np on the bench did you stand out-
side this bar or inside it ? Outside. You turned
your attention from the carriage then, and looked
towards the steps ? Yes. Did yon see the ladies
get into the carriage? I was watching to see
Beebee come down. Did you hear it said in the
crowd that he was coming ? I heard something
said about it hut didn't know exactly. But didn't
you go there because you heard some body say
the prisoner was eoming down ? Yes. You heard
he was shortly going to come down? Yes, sir.
Did you hear it said when the ladies came down ?
Yes, sir. The carriage hadn't driven off before
you started for the bench ? No. How did you
hear the prisoner was coming down? I dont
know; but heard something about it. Did you
hear a general buzz, people saying that he was
coming down soon? Yes, sir. And yon went
and took your station in this place with your face
inwards you were rather higher than the heads of
the crowd ? I was sir. Was there any body be-
tween you and the 6tairs ? BeekyBen was. Was
there any body between you and the steps of the
stairs ? if a person had to go down stairs, would
he have come down against you ? Not exactly,
but very near me. Do you think the distance is
twenty feet, from the foot of the landing to where
you were ? About fifteen or twenty. Was there
any body in the place between you and the loot-
of the stairs ? All that I remember was Becky
m-
PROCEEDING^ OF-A MILITARY COMMISSION,
Ben. Did the steps land right in the middle of
her stall? Yes, sir. Does she sit so that a man
coming down stairs would tread upon her ? No,
she has a small place fixed with a kind of bench.
You say there was a space of fifteen or twenty
feet ? was there any one between you and her?
I don't remember. Did you see Sam Phillips
then? Not at present. You did'nt see a soul
that you could recognise? No. Didn't you see
Tom Powers? No. Did you see Capt. Tolar?
No. Do you know him ? Yes, sir. Did you see
Monk Julia down there? Not at that time. I
am speaking of the time you got to the bench
with your face turned to the stairs; you say you
didn't see Tolar? No. And you don't know
Leggett, did you see Powers or Lutterloh? No.
Nor Maultsby ? I saw Maultsby leaning on the
bench at Becky Ben's stand, inside the market.
"Was he speaking to any one ? I don't remember.
Was any one near him; I think so. Who ? I
don't know. Were there any other persons about
or near him ? I think there were, but I don't know
whether they were speaking to him. Did you
see any weapon about him then ? No. You saw
no one else but Maultsby that you recog-
nized ? No. Was Hollingsworth there then ?
No. Nor Sam Phillips?' No. Nor anybody
else ? No,, or it I ever did know I forgot. You
have forgotten a good deal about it ? I have, sir.
You have never told it at all-from the time it
happened until very lately? I told it to some.
To whom? I don't remember. Who did you
tell it to? Well, I don't remember; it is two or
three weeks ago; I told part of it to Ichabod
Davis. Is he the first person to whom yon re-
member having told it lately? Yes, sir. Did
lie come and ask you about it? No, lie came to
the field where they were playing base ball.
Have you told it several times since then ? No,
I have not said much about it since then; I told
him something about it and he said I had better
keep it to myself. How much did you tell him ?
Not much, 1 don't recollect. You told him the
particular part about Sam Phillips? Yes, sir.
That was the first time in a long while that you
had told it ? Yes, sir. To whom have you spo-
ken of it since? To no one, I was advised not
to. You have not spoken of it to any one since
speaking to Ichabod Davis about it ? I have not
that I can remember. You have not spoken to
the Coursel in this case and told him what you
were going to testify ? No. They never asked
you what you were going to testify on the stand ?
Mr. "Fuller did. Did you tell your mother of it ?
Yes, sir. A full account of it the day it occur-
red? No. Did you tell her of it the day it oc-
curred ? I told her part of it. What Sam Phil-
lips had done ? A part of it; I don't remember
what part. That Sam Phillips was standing
with a cocked pistol in his hand? I don't re-
member. Upon your oath? Not that I can re-
member. Nor your father? No, sir. Then the
first time you mentioned it, was to Davis ? I
told Pa. When ? Just before I told Davis.
How come you to tell him, did he ask you about
it; or did you tell it to him of your own accord ?
Well, Ma knew that I knew something about it,
and I suppose she told him—he asked me about
it. Then the first ever said about the cocked
pistol was to Davis ? Yes, sir. Who were they,
the day it happened that told you to hold your
peace; was it your mother or father? No, 6ir,
some ot the neighbors. Can't you name some
one? No. They had influence enough to keep
you from naming it and yet you don't know who
they were. I do not. You say you saw all that
you have narrated on the day it happened and
you know it now it now as well as you did then ?
Yes. ■ -.Then you say the part you told your moth-
was, that Sam. Phillips was there with a loaded
pistol? No. Your father then was the first to
whom you mentioned it, you say, and that within
the three or four weeks ? Yes, sir. When you
saw Archy coming down stairs you cannot tell
anybody except Maultsby who was there. No,
Do you remember whether Davis had been to
Raleigh and gone back, or do you know ? I
think he had been here and gone back—I am not
certain, but I think he had. Was it the last time
he had gone back ? After he had gone back the
first time from Raleigh, I think. When you saw
Archy coming down stairs who was in front of
him ? Sheriff Hardie—as well as I can recollect
Sheriff Hardie came before Arehy, and got near
the foot of the steps before Archy came out ot the
door? Then he turned and looked around? I
don't remember. Archy was about the door all
this time, then you saw him come through ? Yes.
Was Wemyss on his right hand ? Yes. And you
say he had a twitch on his thumb ? Yes. On his
right thumb ? Yes, sir. And you think Wemyss
who held the twitch was on his right side also ?
Yes, sir. Where do you think Faircloth was ?
On his left, as well as I can recollect. In speak-
ing just now of persons you had conversation
with, did you mean you ever had any conversa-
tion with Tolar about it ? No. You never told
him anything you knew about it ? No. Well,
they came down stairs and nothing was done till
they came to the foot ? Nothing was done then.
You were still looking at them; when did you turn
about and look outside ? When they got to the
arch. You were looking inside until then ? Yes,
sir. You saw their movements from the time
they got to the foot of the steps until they got to
the arch? Yes, sir. When he got to the arch-
inside you turned about so that you could 6ee
him when he got outside ? Yes, From -the time
he got to the foot of the steps inside to the time
he got to the arch and was about to turn about,
what happened? They then rushed on him,
about the outer edge of the arch. You could see
him from the outside ? Yes, sir. Nothing was
done inside ? No. You didn't hear Tom Powers
make a demand for him ? No. No voice nor ex-
pression in the nature of a demand ? No. No
noise, disturbance or confusion whatever until
he got to the arch ? No. And yet you were
looking inside from the time he got to the toot
of the stairs until he got to the arch? Yes, sir.
©id you recognise any body inside in the crowd
from that time to the time he got to the arch ?
No. Was this bar in front of or behind you ? Be-
hind me. You were two or three feet above the
level of the crowd ? More than that. Yon could
see the crowd well then ? Yes, sir. Wasitmov-
ing right at your feet? Not at that time. As
Archy turned out of the arch there was a rush
made for him? Yes. ' Was that a simultaneous
rush of the whole crowd ? Not at all, but some^ of
them. Was it the greater portion of the crowd
that was rushing ? It looked to be about so, the
whole crowd just about surrounded him. You
used the expression rush on your first examination,
do ycu mean to retract that? There was a rush
around him. Did that come from the crowd be-
hind or before, or did all get around him simul-
taneously ? Sort o' from His left and front. The
crowd didn't seem t« come on him from the mar-
ket house or behind him ? - When I first saw the
crowd they were rushing, not before I looked
around. Then when you did look round they were
actually in the act of rushing? Yes, sir* The
confusion was over then so you could not see it ?
Yes, sir. You are confident you saw that ? Yes,
sir. You are certain ? I know I did. Any bedy
there you knew? No. Is it possible that in the
crowcl.you saw at that time you cogldq't tell
CONVENED AT RALEIGH, NORTH CAROLINA.
197
single one of them ? I might have at the time,
but don't remember now? Do you swear, in
presence ot Almighty God, who knows your heart
and conscience this day, and to whom all secrets
are revealed, that with the best exertions of your
memory you cannot say any one of those who
were concerned in that rush that dav. I do swear
it. You have tried and you have failed. Yes, sir.
Sheriff Hardie turned round and exclaimed "stand
off gentlemen ?" He was in the crowd and I
didn't see him. You were standing aboHt three
feet higher ? Yes, but T was not noticing him at
the time, I was watching towards the nigger. Did
you see him at that time? No, he made a sort
o'stop in the arch. Now then this nigger, as I
understand it, has got to the arch on the pave-
ment, and turned to the right? He hadn't turned,
but he was about ready to turn. At that time
when he was about ready to turn, his face was due
east; was your face turned.to the east; you were
not looking inside the market house ? My atten-
tion was turned to some one on the bench. Which
way were you looking inside or out? I don't
know, when 1 looked round in front I seen the
rush. Where you first got standing on the bench,
what did you see; was the rush going on theH ?
Yes. Was Archy outside on the pavement then?
He was about even with the arch, about the outer
edge. Did you see him when he turned to the
right to go to the guard-house? Yes, sir. From
that time did he ever get in front of you? Yes,
he did. Before you jumped off the bench ? Yes,
sir. Was the crowd noisy from the time Archy
commenced moving until he got close to you, or
was it quiet ? Most of them were saying some-
thing, but I couldn't understand. Was it noisy ?
You heard no one say he would get away ?
No. You heard one say "kill him?" I heard
some one say that when he got about in front of
me. Did Sheriff Hardie use his club ? He never
had a club. DidWemyss use his? Not that I
know of. Did you not hear him hit somebody
that day, and a knife drop on the pavement?
No. Then there was such a noise that you could
not have heard the clash of a knife on the pave-
ment, nor the blow of the club on a man's head.
I might "have heard it if it had been loud
enough ; there was fuss enough by the feet on
the brick to prevent any hearing any such small
noise as that. And the first exclamation was
"kill him?" Yes, sir. Now, from the time
Archy turned to the right and moved, down the
pavement until he got to you, did you recognize
anybody at all ? Not that I recollect now; the
excitement for one thing would keep me from re-
membering—my attention was called to the ne-
gro. You can't say anybody who was in that
crowd then? No. Have you not told anybody ?
Not that I can remember Have you not told
them that you knew some whom you were a lit-
tie uncertain about, and they told you that be-
cause you were not certain you need not swear
to it ? No. Then you didn't know a single in-
dividual except the sheriff, his officers and the
prisoner? No. Then you didn't hear any "kill
him" until he got down there. No. Were you
still standing on this bench until the prisoner
was right up to you. Yes. This nigger had
come down the pavement to opposite the center
of that arch before you left your perch? Yes,
sir. You recollect about that—he did get down
the pavement directly opposite you before you
left the perch ? Yes, sir. Where did he fall—
did he fall as soon as he got outside the big arch ?
Well, he had started on. Had he gone a step or
more than that ? More than that. He got near
the arch before you saw him stumble? Yes, he
recovered himself and then went down on his
hands and knees. By the time he got down di¬
rectly opposite you—you standing in this little
arch you speak of ? Yes, sir. Was he well down
on his hands and knees when you jumped off the
perch ? Just rising. He was in the act of rising
when you jumped? Yes, sir. While you were
standing thus did you see Phillips with his pis-
tol cocked? Yes. Was it full cocked? It look-
ed to be. And now you who couldn't recognize
a single one up to this time, 6ay that you saw a
Eistol in a man's hand and that it was full-cocked ?
[ow far was Phillips from you: was he off the
pavement ? He was beyond the pavement. Phil-
lips was in the crowd and off the pavement?
Yes. And the crowd therefore spread on and
farther than the pavement? Yes. How deep
beyond Archy ? About ten feet I should think;
they were coming up in all directions. And in
the midst of it you saw Sam Phillips distinctly
with this pistol in his hand; did he cock it be-
fore he took it out, or after ? The first I saw of
it, 'twas cocked. When he put'his hand in his
breast, didn't you see him take it out; I ask you
distinctly, did you see him take his hand out of
his breast ? I did not see him take it out. You
saw him put his hand in his breast, you didn't
see him take it out, but instantly afterwards you
think you saw his hand with a cocked pistol in
it; was that all in very quick succession ? There
was about a minute or half a minute's difference,
somewhere's along there. Where was Archy at
the moment you saw Phillips put his hand in his
breast ? He was at the place where he- was shot.
Is that answer correct; you say he was in the
spot where he was shot ? Well, rather there or
so near that the difference can't be noticed. You
saw Phillips put his hand in his breast, you
didn't see him pull it out, but you did see him
with a pistol in his hand immediately afterwards?
Yes, sir. Where was Archy at the time you savfr
Phillips with the pistol in his hand ? On the-'
pavement; he was down and just as he rose the
pistol fired. If you will answer my questions, I
will get at what 1 want without these long nar-
ratives ; where was Archy when Phillips put his
hand in his breast ? About the- south end of the
arch near the south corner of the market house.
Where was he when you saw Phillips with the
pistol in his hand ? About the same spot, he did
not move at all; he might have moved a little,,
but-notmuch. Wa3 he down? Yes. Did you
hear the holler "shoot him" before you saw
Phillips put his hand in his bTeast? Yes, sir.
Did you not say just now that you heard that cry
of " shoot him" after you got down on the pave-
ment? Yes, and I say so yet. Didn't fyou say
you saw Phillips put his hand in his '.breast just
after you heard the cry of " shoot him" ? Well,
.... I ask you distinctly, did you not say so ;
if you did, and that it was a mistake, correct
yourself? If 1 did, I made a mistake. Very
well; you say you saw him put his hand in, you
didn't see him pull it out, but you afterwards
saw him with a pistol in his hand : how long a
time was there between these two events occur-
ring, and where was Archy Beebee when the
first event occurred, and where the second ? He
was down on the pavement. 'When? When
Phillips was putting his hand in his bosom. Was
he down on the pavement when Phillips had the
pistol in his hand ? It looked as if he was under"
the feet of the men. You were still standing
there in the southern arch, on the east front when
you saw Phillips put his hand in his breast;
Archy was down during that whole transaction;
then you jumped down ? No, 1 saw him with
the pistol drawn before I jumped down. You
6ayitwas cocked; was it ready to fire? Yes.
Archy was down on the ground when you saw
the pistol, wag the pistol directed to him or not?
PROCEEDINGS OP A MILITARY COMMISSION,
198
It was painted in the direction he was. You saw
the pistol cocked in Phillips' hand while you
were standing in that small eastern arch of the
market; at [that moment Beebee was down on
his hands and knees; now I ask you if that pis-
tol was directed towards Beebee on his hands
and knees at the time you say ? It was as well
as he could direct it at him when he wast down;
Phillips had it directed up this way as if waiting
for him to rise.
(The witness here raised his hand to the height
of his shoulder, as if holding a pistol or present-
ing one.)
The pistol was pointed in his direction. Per-
haps we don't mean the same thing by direction;
when you first saw him, had he the barreljup ? A-
bout on a level with his shoulder. At that time the
negro was on the ground ? He was rising. Then
we come back to the original statement; when
Phillips put his hand to his breast the negro was
down, but when he had the pistol in his hand the
negro was up? Yes. he was rising; about up.
When you saw the muzzle of the pistol for the
first time you say the negro was in the act of
rising? How high was he up? About on his
knees. While the negro was in that position you
jumped off ? Yes; and just as I lit on the ground,
someone cried out "shoot him." Archy had
come down right in front of you; was there not
a crowd right in front of you ? He had pushed
between the crowd, I was trying to get out of the
way. I want to know whether you got down in
the midst of the crowd, or whether there was no
crowd right at your feet ? Well; there was space
enough for me to get on the ground and about
110 more. Then you worked your way through
this crowd, and after the cry of "shoot him" yon
worked your way round to his front? Yes;
about a step or so. After you had taken that
step you heard the pistol fire ? Yes, sir. And it
was in the position already gained in front that,
you heard the pistol fire? Yes, sir. Do you"
swear to that, without fear of being mistaken m
any one of these particulars ? I may have made
some slight mistake; but it was in the direction
of him. You saw that pistol and swear positive-
3y that it was at a full cock when you saw it ?
Well, if it was not a full cock, it must have been
a very far back half-cock. What sort of pistol
was it? A. large pistol; like a navy pistol; a
square barrel pistol. You saw the cock very dis-
tinctly? Yes, sir. Did you see the other parts
as distinctly as the cock ? It had a brass guard.
That's about as much as I know. A brass guard,
a square barrell, and then, it was cocked. Now
sir, when you first mentioned this matter to Mr.
Ichabod Davis did you tell him that the pistol
had the brass guard ? I dont remember, but I
told him it was one of those big army pistols.
Did you tell him it had a square barrel ? I don't
remember. Did you tell him it was cocked ? I
believe I did. When did you first know it had a
brass guard ? I saw it at the time. Do you re-
member now that it had a brass guard? Yes.
Have you ever seen it since ? No. Nor have had
no description of it from any one? No. No
body gave you any description of it ? No, sir.
What do you mean by " a square barrel pistol ?"
Well ; some are round and some a kind o' square.
Yes, hexagonal; when were you summoned?
Last Monday. Have you talked with any one
since you were here about this ? No, sir. Did
you know that the pistol that Phillips had, had
been given to a man named Watson to be unloa-
ded in the town of Fayetteville ? I heard somcth-
ing about unloading, but didn't know anything
about it. No body told you, neither the Coun-
sel, nor any body else that it had a brass guard ?.
No. You swear positively it. was cocked?
Yes, sir. What sort of a day was it?
As well as I can recollect it was a sort of cloudy
day. Was the wind blowing, or was it still ? I
think it was a still evening, but cloudy. Was it
cold or warm ? Well, it was pleasant, I know it
was so to me, I can't feel for others. One more
question : you did not see Captain Tolar there at
all that day ? Not that I can remember. And
you saw no weapons except those of which yon
have spoken? No, sir. Do you know of any
foody else who had a weapon there that day ? No,
sir, I don't. Neither from others telling you so
nor from seeing ? No, sir.
Re-direct examination by Counsel for accused •
Have you ever been a witness before this day ?
No, sir. "Were you anxious to become a witness in
this case? No, I didn't want to come. You say
that during the time most of the matters you have
been speaking of occurred that you were there,
standing near the southerU part of the main arch
joking with Capt. Bully, and he was drunk ? Yes,
he was pretty well in for it. Yes, sir, and you
were joking with him and thinking of that and
attending more to it than to any thing else that
occurred; and that although a great crowd might
have been there at the time, you didn't notice that
nor pay attention to any thing else? Yes, sir.
Some time after that some of your neighbors told
you not to have any thing to say about it, and
from that day you didn't talk about it? No, sir.
Shortly before Mr. Davis had the conversation
with you, your father had a talk with you about
it? Yes, sir. And you then told him in substance
what you have told her to-day. Yes, sir. Short-
ly after Mr. Davis returned from Raleigh, and
upon the ball field, asked you what you knew
about Phillips' connection with this affair, and
you told him what you've told here to-day. I
aidn't tell him so much, but I told him some of it.
You were afterwards cautioned; who cautioned
you, Major McRae, James McRae? Pa cautioned
me about it, not McRae. You were summoned
last Monday? Yes, sir. And before that you
didn't know you would be a witness in the case ?
Well, Mr. McRae told pa that I would have to be.
You came to Raleigh, had_ an interview with me,
and told me what yon know of the matter, and
received the same caution to say nothing about it?
Yes, sir. And what yon have said about it you
have seen; and here in the presence of Almigbty
God, well understanding the solemnities of an!
oath, you swear that what you have said is the
truth ? I do, sir.
(Counsel for accused: and there is no doubt of
it.]
By Judge Advocate:
You recollect very clearly about tbat pistol—
was that brass guard bright or dirty ? It looked
to be dark. Very dark? Yes, like old brass
when it's been standing. How dark was it ?
Like an old door knob. When you were looking
at that pistol, Mr. Arey, can you tell me whether
there was a piece of steel or brass or any other
metal passing over the cylinder? I didn't no-
tice that sir. Oh, that was one ol the little things
yon didn't notice—do yon know a Colt's pistol,
when you see it from any other pistol ? 1 might
know one of these big ones. Do you know a
Remington pistol ? No, sir. Did you particular-
Jy notice Mr. Phillips ? Yes, Bir. What sort of
hat had be on; a black hat ?
Counsel for the accused: I would like to ask if
these are questions by the Court ?
Judge Advocate: They are questions by the
Judge Advocate, sir.
The Counsel for the accused then objected to
any further question, as the witness had been
examined and cross examined in the usual way.
Counsel for the prosecution: I understand the
CONVENED AT RALEIGH, NORTH CAROLINA.
rule to be as stated by my friend on the left, he
introduces a witness, we cross examine him, and
we have no right to enter into an examination
again. At the same time it is not unusual, if a
single question, or two, have been neglected to
put them in this way.
The Commission: The form is that any mam-
ber of the Court having a question to ask, passes
it around upon a piece ot paper. If any one ob-
jects to it, the sense of the Court is taken. If
no ojection is made, it passess current as a
question of the Court.
Counsel for the accused: I must state to the
Court, that so far as these omitted questions are
concerned, I am very sure the gentlemen manag-
ing the case for the prosecution will state that we
have been exceedingly liberal, and they have been
also. If, in this instance, I had been asked, I
would have had no objection to offer, but when
it is demanded as a matter of right, I must object.
Besides, I think that, as a protection to a little
boy, some limit should be had to the examina-
Bion, for as the Court knows, he has already been
examined with severity.
Counsel for prosecution: The question is in
the decision of the Court.
Judge Advocate: I admit the objection and
ask permission of the Commission to ask the wit-
ness the questions , touching the dress of Samuel
A. Phillips that I have already commenced to
put to bim.
Counsel for defence: We object.
The Commission: The matter cannot be dis-
cussed in open Court. We had better retire to
consider it,
The Commission was then cleared for delibera-
tion and after some time was so spent, was re-o-
pened; when
The Judge Advocate announced that the Com-
mission had decided that the objection of the
Counsel for the defence is not sustained.
Mr. Arey, did you observe Samuel Phillips'
coat when you saw the pistol? No, sir, I did not.,
Can you tell me what was the color of his coat ?
I cannot. Did he, or did he not have on an over-
coat at that time. I don't remember. Can you
tell the color of his pants ? No, sir. Tou saw
the pistol in his hand; did he have on gloves ? I
never saw him with any ? Did he or did he not
have gloves on ? I never saw him with any.
You saw him that day ? Yes, sir. You saw his
hand ? I don't know that 1 saw his hand particu-
larly; I saw the pistol in his hand. But you must
have seen his hand if you saw the pistol in the
band? Well, his coat sleeve came down pretty
well on his hand and I couldn't see. Was that
coat a black coat ? I don't remember. He had
no gloves on ? Not that I saw. Did you see his
hand at all ? I don't remember, his coat cov-
ered his hand; his overcoat came pretty well
over his hand. Oh, did he have on an overcoat.?
Well, I can't be certain about that; I spoke a
most too quick. Well, sir, did he or did he not
have on an overcoat? I can't say about that.
Was it a 4large coat? The sleeves were pretty
big. Was the coat a large coat? I can't tell
whether it was long coat or not.
At 3:30 P. M., on motion the Commission ad-
journed to meet on the 23rd instant, at 10 A. M.
Witness Sebastian Abet, junior, on having
the evidence read to him from the records, wish-
es to correct as follows :
To the question put here by Counsel for pros-
ecution:.
"Then the only relationship you know of is,
that your mother is cousin, first or second, to
Maultsby? (As on original record) "Yes, sir."
Witness however wishes this answer corrected,
so as to read; "not cousin, but sister-in-law."
Raleigh, N. C., Aug. 2d, 1867,10 A. M.
• The Commission met pusruant to adjourn-
ment. "
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused, and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and
approved.
John T. Mullins, a witness for the defence,,
having been first duly sworn; testified as follows:
Examined by the Counsel for the accused:
What is yourname ? JohnT-Mulllns. Where
do you reside? In Fayetteville. Fayetteville,
North Carolina? Yes, sir. . How long have
you been living in Eayetteville, North Carolina?
I was born there and have lived there all my life.
Were you in Fayetteville on the day that Archy
Beebee was killed ? I was, sir. Were you at the
market house in Fayetteville that day ? I was,
sir. At what time did you go to the market
house that day ? I got to the market house just
about the time that Archy Beebee and the guard
with him got there; I was standing at Mr. Phil.
Taylor's store on the north-east corner of the
market square ; I saw them as they were coming
up from the guard house by Mr, Draughon's cor-
ner and I walked towards the market house and
got there about the same time they did. How
long did you remain at the market house? I re-
mained there, sir, until Beebee was shot. To
what point of the market house did you go ? I
went under the market' house though the main
aisle of the market house running east and west.
At which arch did you enter the market house ?
The large central arch. About how maaiy per-
sons were there under the market house and
around the market house at the time you got
there ? Well, sir, when I first got there the
crowd was not large; I don't suppose there were
more than fifteen or twenty persons out there ;
it continually increased in size. How long was
it after you reached the market house before
Archy Beebee was brought down stairs ? From
a half to three quarters of an hour as well as I
can remember, sir. Did you leave your position,
or did you remain about the same place during
the time he was up stairs ? I went to the market
house for the purpose of haraing the trial and
tried to obtain entrance, but it was announced
that the trial would be strictly private; no one
would be allowed up there except the relatives of
the young lady and the Counsel for the prisoner.
About what point did you remain, Mr. Mullins?
I was at a bench ten or twelve feet from the steps
that go up into the town hall, near Becky Ben's
place where she sells cakes, &c.. I was standing on
that bench or sitting on that bench pretty much
all the time. During the time that Archy was up
stairs was there any thing occurring in the crowd
that attracted your attention as being unusual ?
No, sir, I saw nothing unusual, the only thing
that attracted my attention was there seemed to
be a general disappointment on the part of the
crowd, that they were not allowed to be present
at the trial; a great many expressed themselves so,
they seemed to be angry. Did you share in that
feeling? I did, I thought the trial ought to be
public; I thought it was due to the public that
they should witness the trial. While you were
there under the market house and before Beebee
was brought down, did you see any thing of either
of these three prisoners who set behind me ? Yes,
sir, I saw them all there Did you see any thing
of Ed. Powers? Yes, sir, I saw Ed. Powers.
Ralph Lutterloh? I don't remember seeing him
whilst the prisoner was up stairs. That is the
time to which I desire you to confine your remarks
goo
PROCEEDINGS OP A MILITARY COMMISSION,
did you see anything of John Maultsby? The
first and only time I saw John Maultsby was when
he was going to the carriage after the yovng lady
and her mother had come down. Mr. Mullins,
while the prisoner was up stairs what were these
persons that you have named, these three men who
are here upon trial, and Ed. Powers, and Leggett,
and Maultsby, what were they doing ? Tom Pow-
ers was standing on that bench by me a consider-
able time, I am sure of that, and Mr. Tolar was
right behind me in the main aisle of the arch ; I
saw him standing there two or three times; I don't
know how long he was standing there. l)id you
notice any conversation between these parties, or
any of them ? Only about the trial being secret;
I heard a good deal 6f talk; I may have said some-
thing to Mr. Tolar, I think I did; I recollect I
said something to Mr. Nixon. Did you see any
whispering: between these parties or any of them?
No, sir, all the talking I heard was in ordinary
conversation. Did you see Mrs. Massey and her
daughter, Miss Massey, at all that day? I saw
them when the carriage drove off; the carriage
was about thirty feet from the market house. Did
you see them when they came down from the court
room, up stairs ? Yes, sir, I had got up and was
standing on the bench facing the steps of the mar-
ket house in front of Becky Ben's stall. Who came
down with them ? Mr. Bond. The town con-
stable ? Yes, sir. Where did they go, sir ?
When they came down stairs they went directly
to the carriage. Where was the carriage standing
at that time ? In the middle of Person st, about
opposite Mr. Ichabod Davis' store, and Mr. Phil.
Taylor's store ; Mr. Taylor's store is on one side
of the street and Mr. Davis' on the other side of
the street, and the carriage was about the centre of
the st. Did Mr. Bond go with them to the carriage ?
•He did. How loDg did the carriage remain there
alter the ladies got in ? Well, sir, I thin k it was
ten minutes at least. Was your attention attrac-
ted to the carriage during the time it was stand-
ing there ? Yes, sir. Just tell if you please, who
went to the carriage while it was standing there ?
I saw Mr. Phil. Taylor go to the carriage; I saw
Mri Robert Mitchell;. I saw Mr. Cashwell go
there. Mr. David Cashwell? I don't know what
his name is beside Cashwell; the only Cashwell I
know in Fayetteville. Who else did you see go
there? I saw John Maultsby go there; that is
the time I saw John Maultsby; when he was go-
ing to the carriage, and the only time I saw him.
Did you see any body else go there? 1 don't re-
member any others; others might have gone.
Did you see Tom Powers go there? I have no
rememberance of him; he might have gone but
I don't remember it now. Did you see Capt. To-
lar go there ? No, sir. How long was it after the
carriage drove off before the prisoner Beebee was
brought down stairs? Well, sir; it was almost
immediately; not exceeding live minutes if that.
Where were you standing at the time the priso-
•ner Beebee was brought down stairs? I was
standing on that bench. Just describe that bench
if you please sir? It is a bendh running east and
west in the central aisle of the market, on the
southern side of the large arch; Becky Ben has a
large bench some three feet high probably, upon
which her cakes and eatables are kept; this bench
is a low bench in front of that, at which her cus-
tomers sit to eat, about twelve feet from the
stair steps. And it was upon that bench that you
were standing at the time Beebee appeared on
the steps? Yes, sir. Were there any other per-
sons on that bench ? Mr. Powers had been on
there but whether he was on it at that time or
not, J. am unable to say; I was talking to him on
.that bench but can't say when he left it. At the
time that Beebee appeared, to go down the steps
was John Maultsby on that bench? No, sir,
there was no person on there. No person on it
except yourself; the little bench you are speak-
ing of? I don't remember any one being on it
but Tom Powers and myself; I am sure John
Maultsby was not.on that bench. I Understand
you to say that Powers was upon the bench
at the time the prisoner came down ? I
am not positive about that; I am sure he
had been there. But whether he was at
that time you can't say ? No, sir, But you do
say that John Maultsby was not on that bench at
that time? He was not. Do you know John
Maultsby well ? I have known him since he was
a little child. Do you know his voice?, Well,
yes, sir. Did you hear John Maultsby or any-
body else at that time exclaim " watch out boys'"
or any thing like that? I heard several voices
remark as he appeared at the door to come down
the second flight of stairs there they come."
You heard several voices make that remark?
Yes, sir. Where were those persons ? About in
different parts of the crowd. Were they upon
that bench ? No, sir, on the main floor of the
market house. Several-persons remarked as he
appeared " there he comes " ? There they come.
Who came with Beebee down the stairs ? Shei'iff
Hardie came down, he was in front—he was the
first man I saw wnen the door opened, and Mr.
Wemyss. Where was Wemyss/ He was on tho
right hand side of the prisoner, and had a thumb
screw, or twitch attached, with a string on the
prisoner's thumb; Mr. MeGuire and the other
guard were immediately in the rear close to him.
Well sir, what was the first thing that occurred
after reaching the floor of the market, that at-
tracted your attention ? I saw nothing that at-
tracted my attention; the crowd came down
quietly ? By the crowd, you mean the party at-
tending thq prisoner ? Yes, sir, I heard or saw
no disturbance then—I was standing on the end
of this bench, furtherest from the arch, and I
watched them as they went around the bench, and
there was nothing occurred then at all, and I had
on a blanket—it was a rather cool day, and I had
been a little cool, and as, they passed the end of
the bench to go out of the arch, I turned and
stepped off of the bench and my blanket fell off
of my ^shoulders, and just at that time I heard
some one say "I demand the[prisoner," and then
I heard thejshuffling of feet, and the crowd had
closed in on the boy. You say while you turned,
the blanket had fallen off of your shoulders and
while you were turning to pick it up, it was that
you heard a remark made " I demand the prison-
er"? Yes, sir. Where had the party with the
prisoner got to at that time ? Passed out of the
central arch. Then youheard the remark " I de-
mand the prisoner"? Yes, sir. Do you know who
made that remark ? No, sir, for their backs
were all to me then. And because of your step-
ping from the bench and turning your back to-
wards the crowd, you were not able to see the
person who made it ? No, sir, I heard Sheriff
Hardie tell the men to stand back. Well, sir,
what did you next notice ? There was a little
scuffle, aud I heard Sheriff Hardie tell the guards
"guards, use your clubs," and then 1 heard sev-
eral licks passed. Where1 were you then ? I was
behind the crowd. Did you see the guard use
their clubs ? I didn't see the clubs, but I heard
some licks passed. Then they passed out upon
the pavement? Yes, sir. Near which side of
that main eastern arch did the Sheriff and the
party having the prisoner pass ? On the south-
era side, the guard house was down . Gillespie
street? Yes, sir. Did you follow along out?
Ycs, sir, I did. What next occurred sir, that at-
tracted your attention ? I saw Monk there with
CONVENED AT RALEIGH, NORTH CAROLINA.
291
a knife. How far had the prisoner and the party
along with him got down the pavement before
you saw Monk with a knife ? About two steps.
Where were you at that time ? I was right im-
mediately behind the crowd. Had you reached
the pavement by that time ? Yes, sir, by the cen-
tral part of the arch I was then; Monk and the
prisoner were about the center of the little arch,
south of the central arch. You say you saw Monk
with his knife ? Yes, sir. What was he doing ?
He was cutting at the prisoner; I saw him make
two or three licks in the direction of the pris-
oner. With a knife in his hand ? Yes, sir, with
a small knife. Did anything else occur there,
sir? Monk didn'ttouch the negro; Wemyss, or
some of them, beat Monk off, or he was got off
any how, and I thought then that there would be
no difficulty, you know, and the excitement had
passed, and the guard would carry the prisoner to
the guard house, and I turned then and was going
off. Which way did you turn? I turned right around
«nd was going down the street. Down Person st?
Yes, sir. Then you were going down in the di-
rection of Phil, Taylor's store, where you came
from? Yes, sir, I had taken two steps, about.
Did that carry you off of the pavement? No,
sir, I was about the edge of the pavement; I was
going right due north, and then I heard a moving
of feet and I looked immediately and turned
south towards the direction of the prisoner and
the crowd, and he was struggling, making vigo-
rous efforts to get away, I thought, and the crowd
then rushed up close, I did, myself; I stepped
back immediately towards the prisoner, then he
went down and two of the guard fell with him,
when he rose up by the aid of the guard; Mr.
Wemyss was still on his right hand side, Mr.
Faircloth on his left hand side, and Sheriff Har-
die was sort of behind him, and had his hand on
the back of his collar. Where was it that he was
shot ? Immediately then as soon as the priso-
ner got straightened up, the pistol fired. Just
confine your testimony now to that point; where
was the prisoner at the time he was shot ? He
was about the southern side of the small arch,
near the southern corner of the market house.
Was he nearer the wall of the market house,
nearer the center of the pavement or nearer the
edge of the pavement ? He was nearer the cen-
ter as well as I can remember, he was about the
center at that time. Did you see anything of
Tolar ? Yes, sir, I had seen Tolar and Leggett as
well as I can remember, and Ed. Powers and
Lutterloh. You had seen them where? They
were there in the crowd, they were more or less
to my right and rear. Nearer the central arch
than you were ? They were to my left, I mean
east of me. They were standing back of you ?
Yes, sir, I was about even with the southern side of
the big arch, rather nearer the market house; Mr.
Leggett and Ed. Powers, and Tolar were standing
pretty much in the north-east direction from me.
To your left and rear? Yes, sir. Well, sir, the
pistol fired ? Yes, sir. Did you see the pistol ? I
saw a pistol there; I saw but two weapons; I saw
Monk's knife and I saw a pistol in the hands of Mr.
Phillips. At what time did you see the pistol in
the hands of Samuel A. Phillips ? About the time
the prisoner raised up. Where was Sam. Phillips
at that time ? He was standing about four or five
feet from the prisoner. To his front? No, sir, to
the left and rear of the prisoner. Was he on the
pavement or off? I couldn't see his feet, he was
near the edge of the pavement, I am sure of that
from his position, it must have been very near the
edge of the pavement, either on or off. You saw
Sam. Phillips with a pistol and he was standing
either off the edge of the pavement or very near
the .edge of the pavement, and gome four qr five
feet to the rear and left of the prisoner ? Yes, sir.
What was he doing with the pistol? I saw him
draw the pistol, made me notice Sam. Phillips, I
saw him take it out of his coat or vest on bis left
side. What was he doing with it? He pressed it
immediately right through the crowd that was
before him, then I could not see the pistol, but the
pistol hred; I heard the report; I saw the smoke,
and it was right in the direction I would have
supposed that pistol to have been if I could have
seen it. Then you heard the report of the pistol,
you saw the smoke, and from the sound of the rc-
port and the spot you had seen the smoke it was
right there where you had seen that pistol in the
hands of Sam. Phillips ? Yes, sir, I didn't see the
pistol when it was fired. Well, sir, was there any
other pistol beside that fired on that occasion ? I
heard but one pistol. Did you see where Captain
Tolar was either at the time or shortly after that
time? I don't think he changed his position;
I know that I saw him there just before the pistol
fired. What made you notice Tolar? I had on a
blanket and he had on a shawl, and we two were
the only persons that had any thing of that kind on
that day that I saw, Do you know what became
of Tolar after the pistol fired ? I saw him leaning
against the southern side of the market house; as
soon as the pistol fired I threw a glance to see
where the negro was shot, and I never noticed
much about where any body was. Did you see
any thing of Sam. Phillips after the firing of the
pistol ? I saw him when he had the pistol putting
it back. You saw him recover the pistol directly
after the firing ? Yes, sir, he drew the pistol back
and said " the negro is dead, and I didn't kill him,"
and he whirled the pistol a little in the air in front
of his breast. What did he do with the pistol ?
He put it up again. Where did he put it? Iam
not clear about that. Did you see him after that ?
I don't remember seeing him after that time; Igot
up to where the negro was, and Dr. McDuffie come,
and I don't remember seeing Sam. any more that
day.
Cross examination, by the Counsel for the pros-
ecution.
What is your business in Fayetteville, Mr. Mul-
lins ? Clerking, I am not clerking now. How
long since you have been clerking ? It has been
nearly a year since I have had a permanent clerk-
ship. What has been your occupation, in the
meantime ? I was accountant, posting up books.
The last year, your business has been that of an
accountant? Is that the only business you have
followed, in the past year ? Pretty much. What
was your last permanent clerkship ? My last
permanent clerkship was at Roekfish saw mill, I
was book keeper, and tended to the shipment of
lumber. How long since you have been" employ-
ed there ? About ten months. How many times
have you been employed as an accountant since ?
I don't remember how many times, not very
many. Can't you remember who your employers
were? Yes, sir, 1 know I have several times
fixed up the accounts, and books of Mess. Clark
and Burns. Any one else? I don't remember
any one. Is there any one? No, sir. How much
of your time did that take ? Not long sir. Would
a fortnight cover it all ? Yes, sir. You had no
occupation the rest of the time. No permanent
occupation. What is the business that Clark and
Burns are occupied in ? They keep a bar room
and a billiard table. Then the only occupation
you have had for the last year has been posting
their books and clearing up their accounts. Yes,
sir, I have done other things in that time. Are
you a married man ? No, sir. Is that the only
means of livelihood you have; these odd jobs
you speak of? Yes, sir. Where is your place of
residence in Fayetteville? A colored woman
PROCEEDINGS OF A MILITARY COMMISSION,
■who used to belong to me cooks for me. Have
you your room there? I "don't sleep there.
Where is your sleeping place ? I sleep in differ-
ent places. What, have you no habitual sleeping
place? I sleep in different places sir. Do you
mean to say you have no place that you habitual-
ly sleep at ? I sleep- when I get ready, at differ-
ent places. You have no place that you occupy,
no room for sleeping regularly? No, sir. Can
you locate some of these"different places that you
speak of; where you sleep when you are ready ?
I sleep at different places sir. It is a very simple
question; it seems to me, ean you tell me where
you most ordinarily sleep; will you' tell me or
not ? I have told you that I have no particular
place, where I sleep. Do you mean to say you
sleep at one place, as much as another ? In dif-
ferent places I sleep at. Do you ever sleep under
the market house f I expect I have in my life
time. Don't you know you have, in the course ot
this last year ? I have not slept there in a year.
Did you ever sleep in an omnibus, for a consider-
able length of time ? When I was working at
Rockfish, I used to sometimes. I want to know
in the course of time you have- had no employ-
ment, and had no source of income, where your
place of sleeping was, and you won't tell me a
single place where you sleep ? Have you an-
swered my question as lully as you intend to ? I
told you I had no particular place of sleeping at.
Could you mention one place you have slept in,
or are you one of those romantic gentlemen who
have no abiding place ? I have slept in that om-
nibus. You spoke of sleeping in that while you
were employed at Rockfish? I never slept in
it except when I come from Rockfish. Have you
been employed at Rockfish during the last year?
, Yes, sir, it has not been a year since I left there.
It has been ten months ? Yes, sir. Have you
never used that omnibus as a sleeping place da-
ring those last ten months ? I don't think I have.
Nor the market house ? No, sir. Will you be
food enough to tell me where you have slept ?
slept at Mr. Monagan's tailor shop. Did you
have a room there ? I slept in there with James
' Hum. I thought you said you had no regular
place of sleeping? I don't, I sleep there some-
times. Where else ? Sometimes I would sleep
at other places. Can you give us some of the
others? (Witness hesitates.) Do you decline
to give any others ? No, sir, I have no regular
sleeping place. But you have irregular sleeping
places; let us have some of them ? Sometimes
I sleep in Dr. McDuffie's office or shop. How
often have you slept there, in the last eight
months? I have slept there twenty or thirty
times. Did you have a bed there ? There is a
settee there. When did you first give informa-
tion that you knew anything of this transaction ?
It was four or five weeks ago. Whom to ? I for-
" get who. You don't forget ? I do forget who I
first told it to—I don't deny telling it; the first
time I ever told it, I think was in the market
house, one Sunday morning. To whom ? I
know that Mr. James Dodd was present there,
and I think Mr. James Kendrieks. You say it
was Sunday morning, in the market house?
Yes, sir. What Sunday do you know? Four
or five weeks ago. Can you tell whether it was
four, or five ? About four weeks. Do you at-
tend any place of worship on Sunday ? Some-
times I do. Did you that Sunday? I did at
night. Can't you remember from that what Sun-
day it was—how many Sundays ago ? I can't
tell. You don't know whether it was four or
five Sundays? No, sir. Was it before this trial
commenced? No, sir. Afterwards? Yes, sir.
Was it after Mr. Dodd went back from here,
when he had been summoned as a witness ? I
could not say. You think it was four or five
Sundays ago ? I think it was, sir. Did any one
ask you about it? They were all talking about
the trial under there. When was the first time you
told the Counsel about it ? I never told him nn-
til I got to Raleigh on Sunday morning. Did'nt
you tell Mr. James McRae in Fayettville, any-
thing about it ? Never in my life. Mr. Bartholo-
mew Fuller ? I never spoke to him upon the
subject in my life. Is that the only time you
have spoken of it ? No, sir, I spoke of it several
times, but not to the Counsel. Have you receiv-
ed any employment, or been put into any occupa-
tion since you first told this narrative? No, sir.
Had no more to do than you had before ? No;
sir. You have no promise of any occupation ? I
have got a school that I expect to teach, as sooa
as the crops are in. When did you make an ar-
rangement about this school ? During the sum-
mer I have been making arrangements about it.
Was it five or six weeks ago you commenced
making arrangements about it. Yes, sir, a geis-
tleman approached me and asked me if I would
teach school. Who is that gentleman ? Tom
Nunnelly. Have you made any arrangements as
to what pupils you are to get? No, sir. You
have iu contemplation some occupation in future ?
I always design doing that. Have'you any pro-
mise of any reward, in any shape, for coming up
here to give in your testimony ? None whatever,,
no human being has ever made any promises to
me. You have received no assistance pecuniary
or otherwise, since you were connected with this
ease ? No, sir. Have you purchased any cloth-
ing since this case was coming ? Yes, sir. Who
furnished the supplies ? I bought this pair of
shoes from Mr. Thompson's. Did you pay for
them? No, sir. Are they the only things you
have purchased, that you now wear ? I bought
this coat and pants. Who furnished you supplies
for them ? I bought them of Mr. Frank Thorn-
ton. Did you pay for them ? No, sir. Did any
one stand your security for them? No, sir.
These good natured men let you have them ore
trust? Yes, sir. Have you any interest in the
result of this trial# None in the world. You
don't care how it terminates ? I have no interest
in it. Yon have no special enmity toward Sam.
Phillips ? None in the world. No special liking
for Capt. Tolar ? None in the world. How long
have you known Capt. Tolar ? Sinee the termi-
nation of the war—about two years. How many
times did you ever see him before you sow him
that day. I saw him a good many times, I have
seen him at the market house—he had a store on
Person street—I have been at his store. Do you
know whether he was carrying on butchering, at
the time the murder occured ? I can't say. Did
you see him there then; I mean before breakfast?
No, sir, I never saw him that I remember, until
the afternoon. Did you know that Capt. Tolar
had stopped the business of butchering for a
short time previous to this affair ? It strikes me
he had, but 1 don't remember. You went to the
market house about the time the guard got there
with Archy Beebee? Yes, sir. Archy went up
stairs, and you expected to go, but admittance
was denied—the trial was private? Yes, sir.
Youthen walked how far into the eastern arch,
how many steps were you from the eastern
entrance belore you stopped ? Twelve or
fifteen feet. Then you were standing on the
pavement? Yes, sir, I walked right in the
main aisle to a bench. You entered the eas-
tern arch, walked right up fhe aisle about twelve
or fifteen feet, then you turned ? I got right up
on a bench. Did you get on the bench as soon
as you went in ? I think I got up there pretty
soon after the prisoner came. How long is that
CONVENED AT RALEIGH, NORTH CAROLINA.
2®?
bench, sir? An ordinafy bench. Give an esti-
mate. Six or eight feet I would say. Which end
were you on ? I was on the south end—the end
that was furthest from the arch, I was nearer to
that end than I was to the other. How far was
the eastern end of that bench from the pillar of
the market house, right in front? Well, sir, it
was about four feet, or five feet. You were
standing on that bench, a greater portion of the
time, and sitting there, while Archy was up stairs?
Yes, sir. And during that time you saw Tom
Powers on the bench, do you remember when
he left there? No, sir. While you were stand-
ing there during that time, did you notice who
was in the market house ? I noticed some per-
sons. Did you see Capt. Tolar there at that time?
I did, sir. And Tom Powers and Monk? Yes,
sir, and Jim Nixon, I saw him and Sam Phillips,
and Ed Powers. Did you see Sam Hall, Lutter-
loh or Maultsby about that time ? I didn't see
John Maultsby until I saw him go to the carriage.
Did you see Sam Hall, while the negro was up
stairs ? No, sir. Did you see Sam Phillips in
there ? Yes, sir. Now after you saw Sam Phil-
lips, was it just after you got to the market
house? I don't remember about that. Did yon
see who was there all the time you were standing
on that bench? I didn't see them. You saw
him there, during the same portion of the time
while the negro was up stairs ? Yes, sir. Did
you notice his dress at that time ? No, sir. Did
you notice that he had on a shawl ? No, sir, I
did not. Did you notice he didn't have on a
shawl? I never noticed his dress. I thought
you said you and Capt. Tolar were the only per-
sons that had on shawls ? We were the only ones
that I saw. You saw Sam Phillips? If I did, I
didn't notice his having on a shawl. Then you
say he didn't have on a shawL? Not that I re-
member. You say it was a cold day? Yes, sir.
Was it a windy day? I don't know whether it
was very windy. Do you remember at all about
• that ? I know it was cool, I know I felt very cool.
You don't know whether it was cold or not? It
was what I would call a cold day. Was it sunny
•or raining ? It was not raining. Was it sunny
or cloudy? I don't remember about the clouds,
I think it was some cloudy. Do you know
whether there was any wind blowing ? Not that
I remember, I don't remember about the wind.
This was sometime in February ? Yes, sir. You
say the day was very cool, didn't Sam Phillips
have some sort of wrapping on ? If he did, I
■didn't notice it. Did you see any weapon about
him when you first saw him; did you notice any-
thing sticking out about his person? No, sir.
Did you see Jonathan Hollingsworth there
"that day ? No, sir, I don't remember seeing him.
Did you see him there with a pistol strapped
around his waist ? No, sir. I think you told me
you didn't see Sam Hall? Not then, I saw him
•afterwards: Henry Sykes, did you see him while
the negro was up stairs ? I saw him there one
time, but I really forget whether it was whilethe
•negro was up stairs or not? Yes, sir. And the other
two prisoners here, and E. P. Powers ? Yes, sir.
Did you see Leggett? Yes, sir. Did you see
him about the time the negro was up stairs ?
, Yes, I did. Now, sir, weren't Mr. Leggett and
' Lutterloh and E. P. Powers and Capt. Tolar stan-
.ding together talking ? When I saw Tolar he was
•standing behind me, in the aisle, down on the
ground floor there, that was the first time I saw
him. Is that the last time you saw him inside ?
I don't remember seeing him any where after that
until I saw him outside. How far. behind you
was he ? Forir or five steps I suppose. And Mr.
'Powers and Mr. Leggett were standing near him?
I can't say, what I know is I saw Mr. Nixon and
Mr. Phillips and Mr. Leggett, in and about the
market. Can't you say you saw Lutterloh, and
Ed Powers and Tolar talking together? I cantt
say that I remember. Do you say you didn't see
them ? No, sir, I won't, I might have seen them.
And the only time you remember seeing Tolar he
was standing behind you? Yes, sir. Where
was Leggett, when you remember seeing him
first ? I don't remember where he was standing.
Where was E. P. Powers? 1 don't remember
where he was standing. Then you say you didn't
see Lutterloh at that time ? I saw Lutterloh, I
didn't see Sam Hall. Was he standing with the
others, or apart? I can't locate him. If they had
been standing in the aisle within eight or ten feet
of the east entrance, would they have been in.
your view? Yes, sir, but I suppose there were
plenty of people that may have been there that I
don't remember now. You were standing on
that bench ? Yes, sir, but I was facing south and
these men were behind me, that is the reason I
could not see them. They were on the other side
ofithe market house ? They were in the aisle,
near the center of the aisle. How broad is the
aisle? Twenty feet I reckon. You think tkafr
Tolar was standing in the aisle when you saw
him ? I know he was. Was he further from the
eastern arch of the market house than you were,
or closer to it ? He was closer, I was further
west than he was. He was standing closer to the
eastern end of the market house than you were ?
Yes, sir. And he was behind you? Yes, sir.
Was he behind you to your left, or right ? He
was behind me to the east. Ithoughtyou said ho
was north of you ? Of course he was, you asked
me which side he was on me, he was north east
you may say. To your rear and-lett then ? Yes,
sir. You dou't remember whether those other
persons were standing with him or not ? No, sir.
Did you see any sign of any weapon about
Capt. Tolar, that day? No, sir. Did you
see no belt, or any mark of any weapou?
No, sir. Did you see him with his hand in his
breast ? No, sir. When you saw him what was
he doing, standing still ? Yes, sir. Talking to
no one ? There were several around there, but
I don't remember who they were, I talked to him
myself one time. Did you get down from the
bench and go over to him and talk to hfm ?
Yes, sir. Then you were not standing on that
bench all the time? No, sir. Who were the
nearest men standing about him, when you went
to talk to him ? I don't remember. Did you see
Lutterloh there about Tolar, when you went
there to speak to him ? Not that I remember.
Did you see J. G. Leggett there? I don't re-
member whether he was there when I spoke to
him. -See E. P. Powers ? I saw him there, as
to the exact point I could not say. Were they
in conversation with Capt. Tolar ? If they were
I don't remember it. And when you went over
to Capt. Tolar, if they were standing about Capt.
Tolar, you don't remember it now? I don't
know that I went .there to Capt. Tolar. You
told me you got down off the bench and went to
him. I was sitting on the bench sometimes and
sometimes standing. When you spoke to him
didn't you move from the bench ? No, sir, I
think I talked right to him where I was, without
going to him. Then part of the time you were
sitting down with your face towards him ? Yes,
sir. During that time that you were sitting with
your face towards him, did you see anything like
a group of men standing there, that you remem-
ber, consisting of Lutterloh, Leggett, Powers
and Tolar? No, sir. And you remained stand-
ing or sitting on that bench, until Miss Massey
and her mother came down stairs? Yes, sir.
Xou were looking directly at them as they came
204
PROCEEDINGS OP A MILITARY COMMISSION,
down? Yes, sir. "Were you standing on that
bench when they came down? Yes, sir. Was
Tom Powers standing on that bench at that
time? I don't know whether he was or not;, I
was looking at the persons coming down the
steps. Do you remember whether it was before
that or after, that you saw Tom Powers on the
bench ? I saw him before the ladies come down.
You don't know whether he was there when the
ladies come down or not ? No, sir. You think
the ladies were at the carriage about ten minutes ?
Yes, sir. And during that time you saw Mr.
Mitchell, Mr. Taylor, and Mr. Cashwell come up
towards the carriage and John Maultsby ? Oth-
ers might have gone, but those are all I can re-
member. You don't remember seeing Tom Pow-
ers and Tolar go there ? No, sir. Your atten-
tion was pretty fully directed to the carrirge was
it? Some of the time it was. You don't pre-
tend you were looking at the carriage all the
time? No, 6ir. It was in your Bight all the
time? Yes, sir. Did you see it through the
main arch ? Yes, sir. Did you see what becaije
of Bond, when he turned away from the carriage
to come back as the carriage drove off ? I think
he went up stairs. Did he come back before the
carriage drove off, or alter it drove off? He
came from the carriage before it drove off and
went back to the carriage again. I understand
that Bond came down with the ladies and went
with them to the carriage; then came back to
the market house lor some purpose? Yes, sir.
Theu did he go to the carriage again ? I think
he did. Die1 you notice where he came to when
he came back the next time? I don't know
where he went then. Did you see him in conver-
sation with any ol these persons who were stand-
ing at the carriage ? I just simply saw him go
to the carriage; I don't know whether he talked
to anybody or not. Did you see him interchange
any remarks with John Maultsby ? I didn't see
him speak to John Maultsby, sir. You remained
in this same position until about five minutes af-
ter the carriage moved off? Yes, sir. When
Archy came down stairs in the position you have
named, Hardie in front, Wemyss on the right
hand, Faircloth on his left, and certain other po-
licemen behind him; up to that point you had
noticed no disturbance in the crowd, except dis-
satisfaction at not being admitted to the trial ?
Yes, sir. Had seen no weapons in the hands of
any one? No, sir. Did you see Sam Phillips in
the market house as they were coming down
stairs? I can't say about that right clearly; I
don't know, sir; there was a good many people
in the market house. How many do you sup-
pose were there when Archy was coming down
stairs V Seventy-five or a hundred. How many
outside around the eastern end? Something
more I should think. 'A hundred and fifty or
two hundred people there altogether? Yes, sir.
Was this crowd perfectly quiet? They were
talking more or less. No outcries? I heard no
outcry, only when they came down I heard seve-
ralsay "there they come," as the door opened as
they got to the second flight of stairs. That
was as lie was on the stairs ? Yes, sir. That was
the announcement "there they come"? Yes,
sir. Now was there no closing up of the crowd?
Not then, there was not till they got out oi the
corner. Passing by the end of the bench yon
were standing on? Yes, sir, my sliawl fell off
and I stepped down, and then I heard some
shuffling. Where was Archy when you jumped off
the bench ? He was at the end of the bench. [
Then your shawl fell and you jumped off the
bench to get it? Yes, sir, and at that time I
heard somebody say " I demand the prisoner."
When you jumped down to get your blanket, did
you get up on the bench again? No, sir. You
jumped down' and formed part of the crowd ?
Yes, sir. How many feet, were you from the
prisoner when you got to the ground ? It was
twelve or fifteen feet I should suppose—it may
have been more or less. Now you think you
were twelve or fifteen feet from bim ? Yes, sir.
Didn't you say you thought that bench was about
six feet long. Yes, sir. Then the distance be-
tween the bench and the wall was four or five ieet ?
Yes, sir. And yon were immediately at the end
of the bench? I don't pretend to say the dis-
tanee—I say it Was ten or twelve feet I should
suppose. Did he pass close to the end of the
bench, or close to the wall—wasn't Wemyss on
his right hand ? Yes, sir. Didn't the other men
pass through at the same time ? Yes, sir. Har-
die was in front, Wemyss on one side and he in
the middle ? Yes, sir. Then you say about the
middle of that pass way yon think was ten or
twelve feet from you ? Yes, sir. When you got
down you heard this voice say " I demand the
prisoner." Yes, sir. You swear positively to
that? Yes, sir. Those identical words ? Yes,
sir, "I demand the prisoner" or something to
that effect. Will you swear it was not " we de-
mand the prisoner "? No, I would not swear it
was "I" or "we." You can't speak to the
words with such particularity as that ? No, sir.
Was it one voice or more than one ? It was one
voice. Do you know Tom Powers ? Yes, sir.
How long have you known him ? I have known
him for a good many years; ever since he was a
little boy. You have known him well? Yes,
sir. How often have you conversed with him in
your life, a hundred times ? I don't know about
that sir—I don't believe I have conversed with
him a hundred times. How often do you 6up-
pose you have seen him in the year before that
thing occurred? I have seen him pretty fre-
quently. You have heard him talk frequently ?
Yes, sir. Did you know his voice? No, sir: I
could not have told from the voice. You could
not have told from his voiQe if you had heard it
in the crowd, whether it was his or not ? No,
sir. You can't pretend to say whose voice it was
you beard, you have no idea? No, sir. You
say at the time you heard this voice, you were
down on the floor ? Yes, sir. Did you immedi-
ately turn your face towards the eastern arch ?
Yes, sir. And you heard simultaneously with the
demand for the prisoner, Hardie tell the crowd
to "keep back gentlemen"? Yes, sir. When
was it that you heard Hardie tell them to use
their clubs ? Soon after that. Could you have
counted a hundred between the two, do you sup-
pose? No, sir. It was a simultaneous transac-
tion ? It was not a minute or a minute and a
half from that time to the killing, the whole
thing, from the time he got to the foot of the
steps until he was killed would not have occupi-
ed two minutes, I don't believe. When this de-
mand was made, the whole crowd rushed in you
say; you were in the crowd ? I followed on af-
ter the crowd. When you got down to get this
shawl of yours were there no persons further hack
in the market house than you ? I could see they
come from the western end of the market house.
And there were some to your lelt and front ? Yes
sir. Any to your right inside of Becky's stall ?
Yes, sir. Did you see Tom. Powers in there? No,
sir. Can't you remember some one you did see in
there ? I saw Sam. Phillips in there one time.
Was it at the moment the demand was made for
the prisoner? No, sir. Were you standing on
the bench when you saw Sam. Phillips in there t
I think I was talking to Sam. Phillips while I was
on the bench about not letting the people go up to
hear the trial. Was it while yoa were oa the
CONVENED AT RALEIGH, NORTH CAROLINA.
?05
bench ? Yes, sir. What I am trying to get at is,
how the crowd was when you got down to get your
blanket; my object is to find out what the amount
of pressure was that was used, and from your
being in the crowd you could tell; there were
portions of that crowd who were behind you?
Yes, sir. Pressing on your left and in your front ?
There were three or four people to the west of me,
most of the crowd was to the east of me outside of
the market, and between me and the eastern arch,
and all along around them. Now, when this rush
took place was it all in 'front of you, or did the
persons behind, further back than you, come up
and press in the direction of the prisoner and the
crowd, as soon as the demand was made ? Yes, sir.
Did you see any person grab at the prisoner ? No,
sir, their backs were to me then. What is your
height, sir. I don't know, I am a low man. You
could not see over the top of the crowd ? No, sir.
After you heard this demand, and this rush was
made, did you feel any pressure back, as if the
rush had been repelled; were you conscious of any
thing of that sort, being on the edge of the crowd;
what I want to know is, if the crowd pressed on
every moment after that demand until the prison-
er was killed ? There was a sort of stop right
there; Hardie said " stand back gentlemen," and
told tne guard to use their clubs, and then I heard
licks and blows passed. Had Beebee got outside
of the arch? Yes, sir, he was going out of the
arch ; this demand for the prisoner was made
while he was still inside of the arch, just as he was
going outside of the arch. The two things hap-
pened so quickly he didn't change his position be-
tween the two ? No, sir. When Hardie told them
to use their clubs you say there was some reaction ?
Yes, sir, for a while they could not go with the
prisoner. They were stopped for some little while
and then the prisoner went on again? Yes, sir.
How many steps had the prisoner taken from the
arch ? Ten or twelve feet from the point where
the prisoner was when this demand was made.
How many steps had he taken outside on the pave-
ment before you got on the pavement; didn't you
lose sight of the prisoner at all in changing yeur
position to go out there ? Yes, sir. He went out
of your view for a minute ?' Yes, sir, he turned
the arch quicker than I did. Did you pass out
through the middle of the arch, or further south?
About the center of the arch. How many steps
bad Beebee taken from the point where he went
out ot the arch when you got on the pavement?
I don't think be had got more than two steps.
You stood about the middle of the pavement when
you first went out? Yes, sir. You walked out
about the middle of the pavement and faced to-
wards the prisoner ? Yes, sir. Was there any
crowd behind you then in that position; was the
crowd large enough to stand to your rear ? Yes,
sir, there were men before me and behind me.
Was it thick before you and behind you? Yes,
sir. There were a good many of that crowd still
behind you? Yes, sir. Did the crowd stand as
far up as to the north-east corner of the mar-
ket house? All up the pavement there were
people; all around about there in the
the street. I want to know if the crowd] was
thick about you when you were standing, and
where the thick-pressed-together crowd began;
how far from you in front ? Eight there at the
right as they were coming out of the arch, the
mass began. When you got inside and stood
in the middle of the pavement opposite the cen-
ter of the main eastern arch with your face turn-
ed towards the prisoner, was there any space va-
cant between you and the crowd that was press-
iug on the prisoner? I don't think there was
much space. Was there any, could you have
stepped forward without striking against any
one? No, I could not have stepped a step with-
out turning against some one. Would that some
one have formed a part of this thick crowd ? That
some one would have touched some one that was
touching some one else that would reach the
crowd. Around the negro and the guard the
crowd was thick? It was thicker than it was
behind me. Now, there must have been some
point where that thick-pressed together crowd
became perceptibly thinner; I want to know
whether you formed a part of the thick crowd or
a part of the thin crowd. I was not right in the
midst of the crowd that was pressing on the
prisoner. How far was that crowd passing on
the prisoner from you in front ? Ten or twelve
feet, I should say, as well as I can remember.
Do you know how wide that central arch of the
market house is ? I think it is .twenty feet; I
think the market is about forty feet in front.
And this thick crowd, you think was ten or
twelve feet in front of you ? Some of them was.
Do you know where the nearest edge of it was
towards you? I declare I can't tell where the
edge was. I want to know whether the crowd
was perceptibly thinner near you, whether you
could perceive a difference ? Yes, sir. You say
it was perceptibly thinner as it ncared you ?
Yes, sir, as it neared, it was perceptibly thinner.
Where did you first notice Capt. Tolar after you
had got out on that pavement, as soon as you got
out? No, sir. Did you see him before the pistol
fired ? I saw him when Monk was cutting at him.
That was after you got outside that you saw that ?
Yes, sir, I never 6aw any cutting at him inside.
And you saw Captain Tolar after you saw that?
Yes, sir. The prisoner fell down after Monk was
cutting at him didn't he ? Yes, sir, he had gone
on further south. It was alter Monk was pushed
off and you saw Capt Tolar that you saw Monk ?
Yes, sir. Did you see him belore you started to
move north ? That was the time I noticed him.
He was standing with him or near him ? There
were four or five there, Mr.. Leggett was there ;
Mr. Ed Powers and Mr.. Ralph Lutterloh were
standing near each other. Were they within!
speaking distance of one another, as if they form-
ed the same group ? Yes, sir. Was there any
body intermixed between them ? No, sir; they
were closer to each other than any body else.
Lutterloh was just as close to Tolar as Leggett
was, wan'the? No, sir; Lutterloh was closer;
he was in front of Tolar then. Which was the
nearest to the market house, Lutterloh, Powers,
Leggett or Tolar? Lutterloh, I think was.
Which was the next nearest to the wall of the
market house; I want to know the order in which
they were standing ? It strikes me that Powers—
Leggett—I don't know which was the nearest.
Was Tolar nearer to you than any of these ? He
was further off than any of those other gentle-
men; he was to the left of them. I thought you
said Lutterloh was nearer to the market house ?
I say that yet. Tolar was further towards the
edge of the pavement ? Yes, sir; that is what I
meant, if I didn't say it. And Lutterloh was near-
er to the wall of the market house than any of
them? Yes, sir. And the other two, you don't
remember what position they occupied ? Rather
between I think. Which was farthest north:
was Tolar further hack north than the others ?
I think he was. As you turned to go off you
heard a noise that attracted yonr attention ? I
heard some scuffling; moving of feet. Did you
hear any cry up to that time ? No, sir. Any body
say "kill him,kill him," "shoot him shoot him'f?
No, sir; nothing of that sort. And you had seen
no weapons at that time? None except that
knife. Do you know that Capt. Tolar had a
weapon on that day? No, sir. Did you gee Ed
PROCEEDINGS OP A MILITARY COMMISSION,
Powers with any? I saw no weapon except
Phillip's pistol and Monk's knife. A person may
answer that way and yet have seen any signs of
weapons either a belt for holding a weapon, or
the protruding garments under which a weapon
was concealed. I don't mean to shirk it that way
Mr. Haywood-; I saw nothing in the world to
make me believe any body had a weapon. Had
the crowd moved in from the point where you
last saw it, when you turned back ? They had
taken a step or two. As you turned, was Archy
up or down ? He was up; I saw him make two
or three jerks, and then he fell. Did you see any
body make an assault upon him at the time he
fell ? No, sir. Did you hear any blow ot a club
about the time he fell? No, sir. Did you hear
any clash of a knife on the pavement just before
the time he fell, struck out of some one's hand;
when Monk was cutting at him you heard the
clash of a knife in the pavement ? Yes, sir. Did
you hear a blow strike on some one's arm ? I
heard a blow strike. Did you hear any body
complaining of his arm being broken or hurt ?
No, sir. You say at the time Monk was making
these cuts you'did hear a blow? Yes, sir. You
heard no complaints ? No, sir. At the time this
negro fell it was that some body took off
Monk as he was making the stroke? Yes,
sir. The whole affair, from the time the ne-
gro left the entrance of the arch until he
was shot, didn't. occupy more than a minute
or a minute and a half? Not exceeding two
minutes. This turning about of yours, was done
very quickly? Yes, sir. You took two or three
steps? Yes, sir. That brought you nearer to
Tolar when you turned to go north? Yes, sir.
Did you pass these gentlemen as you passed north?
They were all on my right. As you passed back,
they were all east of you, still on your left? Yes,
■sir. You couldn't say how far they were from the
point where you stepped when you came back to
look again ? No, siK Did you notice them when
you came back? No, sir, I Was looking at the ne-
gro again. When was it that you saw Capt. To-
iar? When I turned to go north, then I noticed
him. When you turned to go south again, did
you notice him again? 1 passed by him. You
noticed him both times ? Yes, sir. You didn't
■stop to speak to him ? No, sir. You say you took
but two or three steps and turned instantly; the
whole transaction was within a minute or two?
Yes, sir. Did you notice how Capt. Tolar was
•dressed then? I know he had on a shawl. When
did you notice the fact that he had on a shawl ? I
noticed it under the market house. Did you no-
tice it when you passed that second time? Yes,
•sir. Did you notice whether he had on spectacles?
No, sir.. Did you notice whether he had on a tall
beaver hat ? No, sir. Did you notice whether he
had on any hat? 1 don't think he was barehead-
•ed. You think he had on something? Yes, sir.
Do you know whether he had on his shawl folded
around him ? I think he was standing that way,
but I am not positive. This negro went down and
just as he came up, you saw Phillips with a pistol?
Yes, sir, as lie raised. That was the first you had
seen of Phillips, since the time you had seen him
inside the market bouse? Yes, sir. You think
you spoke with him in the market ? 1 am confi-
•dent of it. What was the subject of your
conversation? it was about the privacy
of the trial. And he you think was stand-
ing inside of Becky Ben's stall? Yes, sir.
Then you didn't see him again until you saw
him with this pistol in his hand ? Not that I re-
member of. You say that the negro was up
when you saw him with a pistol in his hand ?
Just in the act of rising. What did you say
•you saw him do with the pistol ? I saw him
draw out the pistol. Didn't you say you saw
him put his hand in and draw it out ? Yes, sir.
Didn't you see him put his hand in? No, sir,
I saw the pistol come oat. You saw the pistol
in the act of coming out in his hand? Yes, sir.
Was the negro up or down at that moment ? He
was just up. Did Phillips present the pistol in-
stantly ? Yes, sir, he poked it in so; (witness
represents Phillips with a pistol holding it in
his right hand presented towards Beebee.) Was
it cocked, sir ? I don't remember whether it was
or not. Could you see* the cock ? I could see
the whole pistol pretty much. Did you have any
•impression as to whether you saw it cocked or
uncocked ? I think it was cocked, I would not
he positive about that. Did you see, notice or
think at the time the pistol was cocked—are you
conscious now that you noticed he had a cocked
pistol ? All that I am positive of is, that he had
a pistol. Ain't you certainly positive of this that
after he drew it he didn't stop to eock it, before
he presented it ? I didn't see him cock it. If it
was cocked it was cocked betore he drew it out
of his breast? I didn't see him cock it. But
that is the way it occurred? Yes, sir. There
was no time to cock it between the time you saw
him draw it, and the time you saw him present
it? Not unless he cocked it while in motion.
The presentation of the pistol was as soon as he
drew it? Yes, sir. You say the pistol went out
of your view when he presented it to fire ?
Yes, sir, I could not see the pistol, it was hid
by the people that was between me and him.
You could see Phillips? Yes, sir. Where did
he cease to appear ? I could see his body about
half way of his arm, I should think. And then
that part of the arm next the fire arm, and the
whole went out of your sight? Yes, sir. You
heard the report, did you see the smoke? Yes,
sir. Where you supposed it was that the pistol
disappeared? Yes, sir. Was there anybody be-
tween Phillips and the deceased, when he fired ?
Yes, sir. Did he fire over their shoulders ? Sort of
over their shoulders. It was nothing but their
heads that kept you from seeing the arm ? Yes, sir,
the heads were close together ; there were more
people between me and the prisoner, than there was
between Phillips and the prisoner. How far were
you from the prisoner ? I think it was about
eight feet in his rear. To his left and rear ? Yes,
sir, I was nearer to the market house than he
was. Phillips, you say, was within three
or four, or five feet of him ? Yes, sir.
And this pistol was presented right in the airec-
tion of the negro's head ? Yes, sir. And you say
there were how many people between Phillips and
the deceased? I don't know how many. Was
there any body ? There was people between him
and the prisoner. This pistol was high enough to
be fired over the shoulders and yet it was not visi-
ble to you? I didn't see the "pistol when it was
fired. After the pistol was fired, did you notice
that Beebee fell ? Yes, sir; Did you notice who
was standing near Mr. Phillips ? I don't remember
that. Did you notice any body who was standing
near him? No, sir. Did you notice what de-
scription of pistol it was? It looked to me like an
ordinary repeater, about ten or eleven inches long,
or twelve, something like that. Do you know the
different varieties of pistols ? No, sir. Do yoa
know the difference between the " Colt's " and the
" Remington " pistol. I could tell one from the
other if I had them in my hands. Did you see that
sufficiently to tell from your own judgment which
it was? I think it was a Remington pistol. Did
you think so at the time ? I thought so at the
time. Did you notice any thing peculiar about
the pistol? No, sir. Did you notice it had a
Jjrass guard to it ? No, sir. Didn't you notice it
CONVENED AT RALEIGH, NORTH CAROLINA."
had an hexagonal barrel ? Yes, sir, I noticed that
it was not a round barrel, it was six or eight sided.
Didn't you notice the fact that it didn't have a
piece of steel over the top of the cylinder? I
didn't notice that. Didn't .you notice that it did
have a piece of steel ? No, sir. What made you
think it was a Remington pistol; what was the
mark that struck you ? From its form and shape.
Aint they very similar in shape? Not exactly.
Where is the difference j why did you form a judg-
ment that it was a Remington, more than a Colt's
pistol; what was the difference ? A Remington
was larger than a Colt's pistol. That was the
ground ? Yes, sir. It was simply on that ground
that you say it was a Remington ? Yes, sir. You
have never seen a Colt's pistol as large as a Rein-
ington ? I don't know that I have. D o you know
that you haven't ? Yes, sir. You have never seen
a Colt's pistol as large as a Remington you say ?
I have seen larger Colt's pistols than I have Rem-
ington; the large navy pistols. Then the size
could not have been the reason why you knew it
was a Remington pistol for you had seen larger
ones; now what was the ground of your distinc-
tion; you say it was the size, but you say you
have seen larger ones than that; you say you
thought at the time it was a Remington pistol ?
Yes, sir. Well, I don't know what made you think
itl was a Remington ? It was just my opinion.
Then after Phillips fired this pistol did you see
what he did ? I don't know, sir, he put the pistol,
I saw him holding it up, and he said "the negro
is dead, but I didn't shoot him." You could see it
when he held it up ? He didn't hold it up a second;
he drew his arm in and held it up in front of him.
Was there any body close to him? Yes, sir, the
whole crowd was right around him; not the whole
crowd; the thickest part of the crowd was right
there. Where the negro man was killed ? Yes,
sir. Wasn't he right in the midst of it; among
the very foremost ones, close to the negro ? Yes,
sir. Had he stepped back when he shot the pis-
tol ? I don't think he had. He was right in the
midst of the whole crowd, the thickest part of it?
I don't know about its being the thickest part of
it. Was it the thickest part of the crowd? I
don't know that; he was right there in front or
five feet from where the prisoner was. How many
men could have laid their hands on him in that
crowd do you suppose; how many could have
touched hiin ? Seven or eight, or more than that.
There were seven or eight men then within reach
of his hand when he made this exhibition of that
pistol? Yes, sir, there was a crowd all around
there. There was no cessation of the crowd be-
tween you and Phillips ? People were all along
there on the walk. There were a heap of people
closer to Phillips than to you? Yes, sir. You
hadn't got out of that crowd when he shot the
pistol? He had just drawn his arm back.
You saw his arm wben it came back ? Yes,
sir. You saw that arm instantly after
the explosion ? Yes, sir. You saw the negro
fall? Yes, sir. You saw all three of these things
at the sametime? Yes, sir, all occurred pretty
soon after one another, about the same time.
You are certain the drawing back of the arm "was
after the firing of the| pistol ? Yes, sir. You
swear to that positively ? Yes, sir. You saw
the man fall, the firing of the pistol and the with-
drawal of the arm ? Yes, sir. In this exhibition
that occurred afterwards, did any one take it ?
Not that I saw, sir. Did you see what became of
it ? No, sir. Did you see what became of Phil-
lips ? No, sir, for I commenced then to go up
to where the negro was to see him. When was
the time you saw Capt. Tolar last before the pis-
tol fired, was it when you passed him to go back?
Yes, sir. Did you see Capt. Tolar again before
the pistol fired, between the time you got your
stationary point when yon saw Sam Phillips?
I saw him when I turned to go north; and then I
saw him when I turned to go south. Then you-
didn't see him again before the pistol fired ? No,
sir. You passed by him then and he was to your
rear? Yes, sir. Wiien you passed back tbat
time, was Lutterloh as far from A rchy Beebee
when you passed him as Tolar was ? No, sir, he
was not as far. How much nearer ? Not much,
a loot or two. He was to the right and front of
Tolar? He was to the west. That was on To-,
lar's right? Yes, sir. North-west from Tolar ?
Yes, sir. You are confident about this position1,?
To the best of my knowledge that is the posi-
tion. And he was the nearest to the market
house of any of them, Lutterloh ? Yes, sir. Did
you see what became of Phillips after he shot the
pistol there that day? No, 6ir, as soon as I could
I worked my way up to the crowd; I moved up
to the negro. Did you turn about and see this
group of gentlemen that you spoke of before you
went up to the negro, and after the tiring of the
pistol; I want to know whether between the-
time the pistol fired and the time you got up to
the negro Beebee you saw Tolar ? No, sir, I
don't remember seeing him. Don't you know
you didn't see him? I don't remember seeing
him, I can't say that. Then you went up to the
negro, what became ot you then ? I stood there
until I saw him, and then I went off. Did you
see Capt. Tolar after you saw Archy lying there
dead/ I saw him standing against the arch. Did
you see him when he went away ? No, sir, I
didn't see him when I left the market house.
Where did you spend that night ? I forgot where
I did. Do you remember where you went when
you left the market house ? No, sir. Do you
remember where Capt. Tolar went when lie left
the market house ? I don't know where I went
nor where he went. You knew the day this oc-
curved, all that you know now of this transac-
tion? Yes, sir. Did you know a coroner's in-
quest was held ? I did, sir. What was your rea-
son for not giving your testimony ? I was not
summoned, and I did not feci it my duty to vol-
unteer my information. Did you feel it your du-
ty to volunteer your information here ? I didn't
volunteer it. You volunteered it so that it reach-
ed here. There is but few that has been about
Fayetteville who hasn't reached here. The whole
population has not been here ? No, but a good
many have. You didn't think it was your duty
to volunteer your information ? No-, sir. And
you never mentioned that thing until after the
trial began ? No, sir. Did you see what became
of Sam Phillips ? No, sir, I don't know when he
left. What is the name of Mr. Lutterloh's tath-
er? Thos. L. Lutterloh. Have you received
any pecuniary assistance from him in any shape
or way since this transaction ? I have never been
to him, nor received any verbal or written cor-
respondence with him whatever upon this or any
other subject. I understand you to say positive-
ly that you have received no pecuniary assistance
in any shape or way; no assistance of any sort
from any one ofthese parties ? None, sir. From
Lutterloh, Leggett, Ed. Powers, nor their pa-
rents? No, sir. Nor from any other quarter what-
soever ? No, sir, I have not. That your evidence
here is the truth ? So help me God, it is truth as
far as I know. You have known about Phillips all
this time; have you ever met since it occurred ?
I met him here. Have you met before you come
up here, since this transaction ? I have seen him
in Fayetteville. Did you ever hear that Captain
Tolar was arrested for this matter, sometime be-
fore the trial took place? Yes, sir. Charged
with shooting this pistol? Yes, sir. Did you
208
PROCEEDINGS OP A MILITARY COMMISSION,
ever volunteer to the military authorities or any-
body else to give your information ? Not a word.
You were aware all this time that an innocent
man was arrested and you didn't think it was
your duty to come forward and inform any one
that you knew anything at all of this transaction ?
No, sir. What sort of a knife was that, that
Monk had in his hand ? It was a small knife.
How many blades did it have? I did'nt see but
one. How long a blade? About two and a half
or three inches. You can speak with confidence
•that you did'nt see but one blade ? I didn't see
but one blade that was open. Did you see John
Armstrong there that day? No, sir. Do
you know him? Yes, sir. Did you see Robert
Simmons? I saw Robert Simmons after the
shooting. How long after ? It was four or five
minutes after him and Mr. Shepherd Maultsby
had some words out in the street. Do you know
Sam. Toomer? Yes, sir. Did you see him
there ? No, sir. Wnere did you say Beebee was
standing at the exact time he was shot according
to your best impression ? Near the southern
eornertof the market house,, about the center of
the pavement. Was he further south than the
South edge of the little arch there? Yes, sir.
He was between the south edge and the corner ?
Yes, sir, if I would locate him, I would say op-
posite the southern corner ot the market house.
And you say the point from which this pistol
came was where ? It was to the cast and rear.
How far off ? The person who fired it must have
been off of the pavement, I could not see his feet.
But he was right at the edge of the pavement ?
Yes, sir. A line dropped from his hand would
have fallen ou the pavement, wouldn't it ? Yes,
sir. Did you see the flash ? Yes, sir. Saw the.
smoke ? Yes, sir. How far was that point from
Beebee's head; the point where you saw the flash
and smoke ? As well as I could see, it was about
three feet; I could.not be positive. You say
Sam Phillips was the only person you saw with a
pistol that day ? Yes, sir. Did you hear any
shouts of " kill him, kill him, shoot him, shoot
him," at any time that day? No, sir. Didn't
somebody say just before Sam Phillips shot, "kill
him"? No, sir; Nothing of the sort ? No, sir.
Y ou heard no exclamations in the crowd that
day ? Not that I heard, according to my impres-
sion, at the time the pistol fired it was a perfect
calm. Didn't you say in your examination in
chief, that you saw Sam Phillips draw back his
pistol, and put it up again ? I said I saw him
draw it back and it went out of my sight. You
saw him elevate it for a moment, did you see
whether it was cocked then or not; didn't you
think it was cocked before ? I don't know he
didn't hold it long enongh for me to tell. You
had an impression that it was cocked when you
saw it before he presented it? I said I didn't
know whether it was cocked or not. But you
said you had an impression that it was cocked ?
I said he might have cocked it as it was coming
up but I didn't see it. You don't pretend to say
whether it was cocked when you saw it. No, sir
Didn't you notice a brass guard underneath the
pistol? No, sir. In levelling the pistol did he
raise it and level it down, or reach out from his
shoulder ? Right from his shoulder I think it,
was. An instantaneous work? It was done
monstrous quick. You say there was some per-
sons standing in front of him ? Yes, sir. Did
they bend their heads ? No, sir. It had to pass
between some person's head and shoulder before
he fired? Yes, sir. Did you know whether
these persons were white or black? No, sir, I
I could not tell because their backs were to-
wards me.
Re-direct examination by the Counsel for the.
accused.
Mr. Mullins, I understand you to say that af-
ter you got out on the pavement, just before the
killing of the negro, that at some of the time
you were standing there, you saw Tolar and Leg-
gett, and E. P. Powers and Lutterloli? Yes, 6ir.
But with regard to their exact positions that you
will not undertake to give them 1 No, sir, I will
not. That you saw them ? i just saw them as I
passed, I just noticed they were there. You
could not undertake to give their positions?
No, sir, my impression is that Lutterloh was
nearest to the market. Whether Phillips shot
this pistol or not you don't swear positively ?
No, sir, I could not But you did see the pistol
drawn by Phillips ? Yes, sir. You did see the
flash of the pistol and heard the report ?
Yes, sir. And it was just in the position
where Phillips' pistol was? Yes, sir. That
immediately after that you saw Phillips in
the position you have described, recovering the
pistol, and heard|him say " the negro is dead, but
I didn't shoot him," and the pistol then disap-
peared from you ? Yes, sir. That was Sam Phil-
lips and nobody else ? Nobody else. No doubt
about that? None in the world. You say that
it was the only pistol which was fired there on
that occasion ? It was the only pistol I saw
there that day, and I heard but the report of one
pistol. Are you a rich man ? Not very. Are
you a poor man? Yes, sir. Something has been spo-
ken about your past life and mode of life, I under-
stand you to say sir, that you have no certain
abiding place; that you sleep where you have an
opportunity to sleep ? Yes, sir. And that it is
very difficult for you to provide bread ? Yes, sir;
I have no family; I am a single man and I live as
economical as possible; I don't owe any body
much £ when I get any thing to do I do it, and
when I don't I go without it. You have been in
better circumstances than you are now, haven't
you, and like many others you have fallen into
poverty ? Yes, sir. That you habitually employ
yourself honestly when you can get anything to
do? Yes, sir. When you can't you have to
pinch ? Yes, sir. And get on the best way you
can ? Yes, sir
Question by the Commission.
After Beebee was shot and up to the time that
you last saw Tolar; I think you said you did see
Tolar after he was shot, didn't you ? Yes, sir; I
saw him standing with his back against the mar-
ket house. After Beebee was shot and up to the
time you lost sight of Tolar, did you hear any
exclamation in the crowd as to who had fired the
pistol ? No, sir, I didn't hear any body say who
done it; I heard some one say after that, who
shot him. How long ? A half an hour after that.
Are you a Mason ? No, sir. I think you said
you noticed the barrel of the pistol Phil-
lips had was a square barrel? Yes, sir.
Didn't you also say you didn't notice much about
the pistol at all I didn't have it. But you say
it was eight sided ? I mean it was not a smooth
round barrel. You said that Mr. Tolar had his
shawl on ? Yes, sir. Could you have seen Mr.
Tolarjput his band in his breast if he had done so?
He might have put it in there and I never have
seen him, sir.
James W. Atkinson, a witness for the de-
fence, having been first duly sworn, testified as
follows:
Examined by the Counsel for the accused.
What is your name ? J. W. Atkinson. What
does the "J" stand for? James. Where do
you reside? In Fayetteville. What State?
North Carolina. What is your occupation?
Painter. Were you in Fayetteville on the day
Archy Beebee was killed? Yes. Were you in
tji.o market house on that day? I was. State,;if
CONVENED AT RALEIGH; NORTH CAROLINA.
200
you please, at what time you went to the market
house that day ? Well, I think about half-past
two in the afternoon. From what place did you
go to the market house ? From Mr. McKethan's
shop. Is that the place of your employment ?
Yes. Where was the negro man Beebee at the
time you went to the market house ? He had
beeu brought out from the guard house. To
what part of the market house did you first go ?
About the center. Did you see Beebee when he
was brought from the guard house ? I did.
Who was in company with him, who had him in
Charge!? Wemyss, Faircloth and Mo.Guire. At
what portion of the market house did that party
enter'? At the eastern arch. Where was the
Court? Upstairs. When he was being carried
up stairs what was your position ? Well, I can-
not tell, it was under the market house. Did
you remain in and about the market house da-
ring the whole time he was up stairs ? No, I
went down street to Mr. Clark's store. How
long before Beebee was brought down, was it
that you went to Clark's store? I don't under-
stand you, sir. That's right, 6ir; whenever you
don't understand, just say so; how long was it
before Beebee was carried up 6tairs, that you
went to Clark's store ? About fifteen minutes.
How long did you remain at Clark's ? A very
short time. Did you return to the market house ?
I did. How long after you left Clark's store ?
About half an hour. Where was you during
that time ? I walked up as far as the extreme
south corner—Mr. Kyles. That is not the south
corner? Well the north corner, then; I walked
up there and then came back to the market
house. Did you see Miss Massey and her daugh-
ter? I did. When they went up stairs? I think
I did. When they came down stairs? I did.
How large was the crowd assembled there under
the market house and outside between the times
that Miss Massey went up and came down stairs ?
Well I suppose there were about a hundred there.
Within and without ? Yes, sir. Who came '
down stairs with Miss Massey and her mother,
any one? Nobody but Mr. Bond. Mr. Bond,
the town constable? Yes, sir. Where were you
when they came down stairs ? Standing under
the market, about seven feet from the large east-
ern arch. Standing upon the floor of the mark-
et house ? Yes, sir. What became of Miss Mas-
eey and her mother, when they came down stairs ?
They went to the carriage, sir. Where was the
carriage standing ? About twenty feet from the
edge of the pavement of the eastern arch.' Who
j eeompauied them to the carriage ? Mr. Bond.
Do you know if he helped them into the
carriage or not? I don't know. I didn't
look. Did you look <it the carriage while
it was there ? I did. During the whole time ?
Well I didn't pay any very particular atten-
tion to the carriage. How long did it stand
there after Mr. Bond helped the ladies in? Well
1 suppose five minutes. During that time that
the carriage stood there, did you see anybody go
to it? 1 did. Who? Tom Powers. Where did
he go from ? From the market house. Any one
else? I saw Mr. Cashwell—Mr. David Cashwell.
Where did he go from ? I think he came from
Taylor's store, but I'm not positive about that.
Any body else? Not that I recollect Well, up
to that time, had you seen any thing of Captain
Tolar ? When I went to the north corner, and
came down, I saw him standing about where he
does his business. Did you see ahy body with
him? I can't recollect—I can't say. Where did
you see him next ? Never saw him after that,.
And that was the first and only time you saw
Captain Tolar that day; did you 6eehimgo to the
carriage? No, Sir. I,did, not,' Well sir, after
the ladies went to the carriage and after the car-
riage drove off, where was your position between
that time and the time Beebee was brought down
stairs ? About the main arch, around in there; I
can't recollect—I might have walked up the oth-
er side of the-market house—-I don'tknow exactly
I was round there anyway. How long was it af-
ter the ladies came down, that Beebee was brought
down ? About ten miuutes. Did you see Beebee
when he first appeared upon the landing of the
stairs coming down ? Yes, sir. Where were
you at that time? Standing about three feet from
the corner of Becky Ben's bench, the inside
bench. On the inside of her stall? No, on the
out side. Were you nearer to the eastern wall,
or where? Well, I was standing about the mid-
die of the main aisle that runs from east to west
through the market. And from that'posjtion you
saw Beebee and the party having him in charge
from the time they first appeared upon the land-
ing of the stairs, how large do you think the
crowd was at that time? Well, about one hun-
dred and fifty I reckon, or two hundred. Com-
posed of whites ? Whites under the market, I
didn't see any colored people at all under the
market. Now was the crowd outside ? I can't
say. Who composed that party that accompani-
nied Beebee down stairs ? There was Sheriff
Hardie. Where was he? I don't recollect where
he was, as he came down until he got down the
big arch and got out of the stall. You remember
he was there? Yes. Who else? Mr. Wemyss.
Who besides ? I am not positive—I can't say.
Anybody else ; any other policeman ? I don't
know—if there were I can't recollect. Then from
that position you could see everything that oc-
curred, could you not ? Pretty well. Do you
know John Maultsby ? I do. Had you seen him
that day there ? I had. Did you see him at that
time ? No, sir. At the time that you are speak-
ing of Archy being upon the landing of the stairs,
and you standing there near the main arch, could
1 you distincly see that bench that runs near Becky
Ben's stall. No, sir, men were crowded round
me. Do you know whether, at that time any
one jumped on that bench or not ? I dont. Did
you hear any exclamation or outcry at that time
such as "look out boys, here he comes," or any
thing of that sort? No, sir, nothing of that soft
reached my ears. You speak of having seentJohn
Maultsby; where ? Sitting on a bench on the right
hand side of the market house as you go in at the
eastern arch next to Mitchell's store. How long
was that before the time that Archv appeared upon
the landing? I suppose it was half an hour. Did
you see him after that ? No, sir. Did you see
any thing of Tom. Powers in the c-owd at that
time, or up to that time? I saw him once.
Where was he ? Under the market house. Can
you tell about what plac« ? About the center of
the market house. When did you see him there ?
That was after the trial commenced ; after Miss
Massey and her mother went up stairs. Before
they came down ? Yes, sir. And between that
time and the time that Archy appeared upon the
landing you saw nothing of Tom. Powers that you
remember of? I don't recollect seeing him any
more. You spoke of John Maultsby's sett ng on
the bench, who was with him? James Jones; £
think James R. Jones is his name. Were they in
conversation about this matter ? Yes. Did .you
hear their conversation ? Part of it. What was it
sir? John said hecame up to bail out Archy if he
was not guilty, if he was innocent he wanted him
not to be punished, bat if he was guilty let him go.
If Bi*ebee was guilty he was to let him go, if not
guilty he was to bail him out; are yon positive
about that ? I am, sir. During the time yon were
standing there, and the time of Arcby's coming
210
PBOCEEDING8 OF A MlLITAKI COMiHSSIOH,
down to the landing as you hare described, did you
see any thing of Monk ? No, not up to that time.
Nor of Sam. Hall? No. Of Powers? No. Did
you see any thing of Leggett? Yes. Where?
Under the market. Did any thing unusual occur
between the time you first saw Beebee upon the
landing and the time of his reaching the floor of
the market house ? Nothing at all. Any cries nor
exclamations? No, sir From nobody ? Nobody.
Did you notice any excitement in the crowd at all ?
Weil, when the lady came down stairs I noticed
that her neck had been scratched and bruised;
every body noticed it and it created a sort of ex-
citement. Did that excitement manifest itself by
any threats of violence ? No, but from the fact
that they noticed her neck. Then we have got to
the foot of the stairs and the floor of the market,
did you still continue to hold that position ? Yes,
sir, I had my eyes on him. What first appeared
then to draw your attention ? When he got to
the edge of the east arch then the crowd commenc-
ed to gather. When he got there how far was he
from you? About five feet, I think, I can't be
certain. What occurred there? Well, he was
demanded. Who demanded him ? Tom. Powers.
Where was Powers standing? Right on the rear
of him. So that Beebee had passed him ? Yes.
What did he say when he demanded him ? He said
"give him up tome." Well, sir, what reply, if
any, was made to that? Then the crowd began to
rush in. What next occurred? I heard Mr.
Wemyss halloing to the crowd and to Monk to go
away, and about that time I heard Sheriff Hardie
crying out to the crowd to stand back. When did
that occur; how far did the prisoner and the party
in charge of him get at that time ? About even with
the small eastern arch, going down Gillespie street,
on the eastern side. On the pavement ? Yes, sir.
Where were you at that time, had you changed
your position ? I had moved as t he crowd moved
and was standing on the pavement outside, about
the center I guess. Where did that throw you
with regard to that eastern arch ? I don't know,
it threw me about three feet from under the eas-
tern arch. Yes, but what corner of the main eas-
tern arch ? The southern corner and about three
feet from the wall of the market house. Well
sir at that time, how far were you from the pris-
oner Beebee? About five feet I reckon. What
next occurred Mr. Atkinson, to attract your at-
tention ? I saw Monk cutting with a knife at
Beebee. Where was Monk at the time he was
doing that ? In the crowd. What was he saying ?
Nothihg at all, but he was cutting at him. That
was the time Mr. Wemyss was halloing "go away
Monk." Well, what next occured? The next
thing was the shooting of Beebee. Did you see
anything of a scuffle or an attempt to wrest him
from the authorities; or did you see anything
looking like an attempt to get away ? From the
way Monk was cutting at him, I suppose he was
trying to keep him from doing it. Never mind
suppositions. What did you see? Well, I saw
him getting down, or shuffling about. What
time was he shot ? Just as he rose up. What
point on the pavement or what point about the
market house had he reached when he was shot ?
About the center, about the edge of the small
eastern arch. Which edge, the upper or lower ?
The southern edge. What was his position?
About two feet from the edge of the pavement.
Where were you at the instant he was shot ?
Standing on the edge of the pavement, I had
moved up my position. How far then from Bee-
bee? About four feet. Were you directly to his
rear? Yes, directly. Which way was Beebee
looking at that time? Well, his bead was turned
in the direction of Mr. Whitehead's corner which
made it about south west. His face was turned
in that direction ? Yes, sir. Where were you
looking ? Right at him. Who was with him ?
Sheriff Hardie, Wemyss and other policemen
whom I have forgotten. Do you remember where
Sheriff Hardie was ? To his right. And had bis
hand on his collar, was it to his right and front ?
To his side, about, as if I were to catch a man so:
[placing his hand on the collar of his coat at the
6ide.] Where was Wemyss ?| To his left and
rear; I cannot tell very well how he was, he had
hold of him, I know that. And'Hardie had hold
of him? Yes. Well then just as he got about
straight the pistol was fired ? Not quite straight
about this position: [witness here sloped his
body to an angle of about sixty degrees.] Was
there more than one pistol fired that day ? There
was not. Was the person who fired that pistol
off or on the pavement, what was his position
with regard to Beebee, to his side, front, right,
left, rear or where ? A little to his rear and left.
How far off from you was the man who fired that
pistol ? , About five feet. What position did he
occupy with regard to you ? To my left and
front. Did you see the pistol drawn ? No, sir.
Did you see it presented ? Yes. Did you see it
fired ? I did. Who fired it ? Samuel A. Phil-
lips. He was standing where you have described
him? Yes. You saw him present it. Yes. And
you saw him fire it ? Yes. And that was the only
pistol fired on that occasion ? Not a doubt of it.
You have no doubt about it? Not at all. That
Samuel A. Phillips shot the negro, and nobody
else? Yes, sir, there's no doubt about that.
What did he do after that ? 1 turned off, he held
the pistol up while you could count five, then he
turned off. He presented the pistol, held it up,
fired it, and returned it to his breast, and then
you left? Yes, sir. He made no remark? None
at all. And you saw the smoke, and the flash,
and heard the report ? Yes, sir. You saw the
smoke from the muzzle of the pistol, and from
that place only ? Yes, sir. Do you know which
way Phillips went after he fired that pistol ? I
do not. He then turned off you say? I don't
know, I turned off. Where did you go then ? I
went down the street about my business. Did
you see anything more of Captain Tolar that day?
No, sir. Or of Phillips? No, I don't recollect.
How long has it been, or when was it, that you
first informed anybody under the Heavens that
Samuel A. Phillips fired that pistol? You are
the man, sir; I was up in my shop and heard To-
lar was to be tried for it, and my conscience was
disturbing me about it, and I heard that you
were the counsel for the accused, and I went up
to your office and told you of it. Where did you
tell me of this ? In the back room of your office.
Did you find me sitting there? No, sir. Where
did you find me sitting ? In the front room at
your window talking to Mr. Hollingswortb. Was
it at your request that I went into the back room?
Yes, sir. And you told me, then and there,
knowing that I was counsel for the accused?
Yes, sir. And did you tell me that Tolar was an
innocent man, and that Phillips shot the negro?
I didn't tell you that Phillips shot him. What
did you tell me ? That it was a particular lriend
of Mr. Massey before the war, that fired that pis-
tol; I have, however, told you siDce of it.
Cross-examined by Counsel for prosecution:
Mr. Atkinson, just after that pistol fired, did
you hear anybody in the crowd inquire who bad
done it ? No, sir. No exclamation nor cry at
all? No, sir. You didnrt bear anybody say that
Captain Tolar had done it, had shot the negro,
before you left ? No, sir. Nothing of that sort;
do you live with McKeethan ? I work with him.
Does Tom Powers work there too ? He does.'
Did yoti ever. tell, bim about this business ? I
CONVENED AT ItALEIGH, NORTH CAROLINA,
211
never did. Did you tell this to Mr. Fuller be-
fore Tom Powers was arrested ? Y es, sir. Did
jou know that a coroner's inquest was going on
the day after the negro was killed for the pur-
pose of ascertaining who had killed the man ? I
knew that Mr. Blake had been summoned that
evening there by Mr. Hardie, who was coroner
for the jury. You didn't know that there was
any trial by a coroner ? Only what I heard. You
never heard at the time that there was an exami-
nation going on by the proper authorities as to
•who had killed this negro ? Oh! I heard that
there was a trial. You did hear of it ? I did.
You didn't feel it your duty to give any informa-
tion at that time ? No, sir. And the first you
communicated of the matter was to Mr. Fuller ?
Yes, sir. How long after the transaction, the
man was murdered about the 11th February, and
the communication to Mr. Fuller was about when?
About 1st July I reckon, I don't recollect exactly.
How long was it before you were summoned ?
I got my subpoena on 2lst July to report here
on the 25th. Was it before that, you told Mr.
Fuller? Yes, sir. Before that? Yes.. How
long, can you remember, before ? I guess about
two weeks. Had Sam Phillips been "arrested by
the time you received your summons ? He had
been. Do you remember how long before ? 1
am uot positive, I can't recollect. Had you
beard any thing of Sam Phillips turning State's
evidence before that ? Oh! no, I had got up here
before he done it. You had got up here and been
examined for the defense before Sam Phillips be-
came State's evidence? Yes, sir. Did you ex-
pect to testify; knowing that Phillips was to be
on trial, and the Counsel was aware of what your
testimony would be, from what you had told him
before? Yes, sir. Do you think you are bound
by the oath you have taken before this Commis-
sion ? I do. Do you believe it to be perjury to
tell a falsehood here? Undoubtedly I do. You
do not think that because this is a Military Court,
it would not be perjury to tell a falsehood ? No,
sir. Have you ever told any such idea to any
body? No, nothing of the kind ever crossed my
mind. You never said anything of that character
to one Reverend Mr. Pepper. No, sir, don't
know him. Have you ever met, since you have
been here, with a man who was Chaplain to some
regiment in the United States army, and talked
with him in anything like that way ? No, sir,
never. Have you, Mr. Atkinson, borrowed any
money from Thomas Lutterloh since you have
been here ? 1 did, six dollars, which he offered
■to me himself. Has any body offered yon any
more money? Nobody. Have you drawn a
draft on him for further supplies ? I wrote him
to send me some money, he told me if I wanted
any to write him. And you have written him,
you have drawn on him for fifty dollars, have you
not? No, sir. Just simply wrote him a letter,
didn't you ask Jim Nixon to assist you to draw a
draft for fifty dollars on Mr. Lutterloh? It wasn't
fifty dollars. What was the amount ? Twenty
five dollars. . That draft was drawn? Yes. Did
Mr. Lutterloh ever lend you any money before
that, before this trial ? No, sir. Have you had
any offers Of pecuniary assistance since this trial
began? I don't understand what you mean.
Has anybody in Fayetteville offered to lend you
money since this trial commenced, have you had
no offers of this kind ? No, sir. Did you not
state, in the presence of several persons, that you
could have brought two hundred dollars or more
up with you, when you went home last time ?
Don't recollect anything of the kind. And the
•only supplies you have had are those you drew
from Mr. Lutterloh ? Yes, but (Jeneral Avery
*a*e aae same papers. • Yes, yes, I don't mean
that, did Mr. Lutterloh owe anything to you
ever ? Not a cent. When you went to the mar-
ket house the first day, you say Arcby had been
there ? No, I went there before Archy got up
there. How long had you been there before
Archy got there ? I suppose about some fifteen
minutes. Were you standing facing the east arch,
as he came up? No, outside on the pavement
then. He passed you and went up stairs ? Yes,
sir. Then you came inside ? Yes. And you re-
mained, I believe about ten minutes? Yes, about
that time. Did you see any persons there that
you knew, any of the prisoners at the bar ? No,
sir, not at that time. Did you see Mr. Lutterloh
or Mr. Leggett or E. P. Powers at that time ?
I saw Mr. Leggett, but not at that time. Did you
see Sam Hall or Henry Sykesor John Maultsby
at that time ? No, not at that time. Did you
see Sam Phillips then ? I don't recollect. You
say you staid there about fifteen minutes, were
you still or walking round ? Just walking round, I
didn't seat myself anywhere. You then went to
Mr. Clark's store, how far is that from the mar-
ket house? About fifty yards. How long did
you stop there ? About fifteen minutes, I think.
And then you returned ? Yes, sir. What was
your business at Clark's store? Well, I just
walked down there, seeing as I knowed him.
Did you walk alone ? Yes, sir. Did you walk
back alone ? Yes. Did you meet any one at
Clark's store ? I don't recollect seeing anybody.
What was your business at the market house
that day? Well, I had been working pretty
hard the fore part of the day. What was your
object in leaving your work and going to the mark-
et house ? Well, I went to dinner at one o'clock,
came back, and made a remark to the men I was
working with, that seeing as the trial was going
on, I would go up and hear it. When did you
first hear that an outrage had been attempted ?
About two o'clock. You didn't hear it Sunday
morning? No. What 6ort of store does Clark
keep—what does he sell ? In the back end a
bar room. What does he. do in the front ? Noth-
ing, that I ever saw. Was it a grocery store?
Not at that time. Was it just a drinking shop ?
Yes, ofily that. Did you take any thing to drink ?
No, sir. Had you anything to drink that day ?
I had not. When you went back y-ou say you
staid from twenty minutes to half an hour after
Mrs. and Miss Massey came down? Yes, sir.
Then you went to the northwest corner; oh!
there are two northern corners, which was it you
went to, the north-east or north-west? Well,'
the the one to the north, the extreme northern
corner. Do you mean the northwest corner?'
Yes. At that time you saw Tolar ? I saw him as
he came through. You went in at which end?
I didn't go in at the end coming up but walked
right round it. But after you had been to Clark's,
did you go on in at the east end of the market
house ? No, sir, I went right up to the side of
the market house as you go in from the street,
on the pavement. Which arch did you go in at ?
The western arch. And it was after you came in
you saw Tolar? Yes. On your right as you
moved towards the east? 'Yes, That is his
usual place of business ? Yes, sir. That is the
first and last time you saw them that day ?
Yes, sir. Did you notice whether he bad
any weapon ? No Did you know that he had ?
No. Or that he was in the habit of wearing a
weapon ? No, sir. Did you ever see him wear one?
Never. Ever hear him say he wore one? ' N«ver.
Was he talking to some one or standing alone?
He was talking to some one but I can't recollect
who. Then you walked off to the east? Yes, sir.
You then remained tolerably stationary until Misa
Mageey and her mother came down stairs ? Yea
proceedings of a military commission,
sir. When Miss Massey and her mother came
down stairs, how far were you from the eastern
arch of the market house? I was standing about
three feet from the corner. They had passed right
in front of you; where were you standing ? In
the main aisle. How far from the eastern arch ?
About three steps or so. .Eight or nine feet then ?
I don't know, it was not very far, I can't be posi-
tive; I don't recollect exactly the distance. Was
it at the east end of Becky Ben's stall, in front of
you or behind ? In front. It reached further
east than you ? Yes. 1 ou were as far back as
the west end of that bench ? No, near the east
end. When Miss and Mrs Massey came down
stairs, and you saw Bond come down with them
and go to the carriage ? Yes, sir. You saw those
persons pass out to the carriage, and I understood
you to say that you saw Tom Powers and David
Cashwell go up and speak to the ladies at the car-
riage? Yes, sir. Did you tee what became of
Bond after he left the carriage? No, I don't rec-
ollect. You didn't see him after he went bacs to
the house ? No. You didn't see Tolar go into the
carriage ? No, I never saw him at all. J>id you
see Robert Mitchell go to the carriage? No, sir.
Phillemon Taylor? No. Or John Maultsby ? No.
The only persons you saw go to the carriage were
David Cashwell and Tom Powers? Yes, except
Mr. Bond Did you see what became of Tom P>>w-
ers after he came back ? I don't recollect. Do
vou think he came back from the carriage ? Yes,
he did. The next time you remember seeing him
however, he was within the market house; you
don't remember seeing him come back, do you ?
No. Was that young lady weeping as she passed
from the court/ Yes, sir, she had a handkerchief
to ber face. Was ber veil over her face? No.
Did she have a veil ? I didn't see any. She was
using a handkerchief was shef Yes. Did she
have Mr. Bond's arm? I don't recollect. Then
you think she was moving along and weeping,
where did you see the marks ? Around her neck.
Around in front? Yes, she looked red and black.
Did she have a cloak on ? No, sir. Was it a cold
day or warm ; it was in February, did she have no
cloak on? If she did have, I don't remember.
You saw her neck you are quite sure? slam.
Didn't she have a wrapper nor shawl on her neck
at that season of the year ? No, not that 1 recol-
lect. Y ou could see her neck? Yes. You say
others saw her neck also, how do you know that ?
I don't know, I suppose they did, everybody was
looking. Well, 1 thought you were going too far.
did you hear any exclamation like "how horribly
she's been treated," or anything of that sort, or
do you simply conclude that others saw it because
you did? I don't recollect anything about that,
ana I don't want to say anything unless I saw it
myself. You didn't hear any body cry out that
they had seen it ? No, sir. No outcry, no ex-
pression of excitement ? No, not at that time. I
understood you to say that theexcitcmentyou saw
occurred at that time ? Well, everybody" seemed
to be— Well, sir, if there was no outcry you have
no reason to suppose that because you saw it, others
did also ? Well the people were gathering round.
But you have as I understand it, conveyed the
impression clearly that when this lady's neck was
seen, it was seen by the crowd and it created
some excitement? Yes, but the excitement I
mean is the crowd getting up round. Did you
see any movement of the features, any pallor of
the face, any setting of the lip ? No, sir. Oh,
the only marks of excitement consisted on the
closing up of the crowd after these ladies had
gone into the carriage; who was with them
Sheriff Hardie and Mr. Wemyss. Were there
others whom yon cannot name ? I cannot speak
certainly. . But. you remember that Hardie and
Wemyss were there; was there any interruption ■
. to Archy coming down stairs ? None at all. As
As he eatne down stairs did the crowd go there
towards the steps; was there any rush or crowd-
ding towards the steps any nearer than before ?
No further than to where the hall comes round ;
about the steps. Was there any movements in
the crowd that you perceived, or can testify to, as
Archy came in sight? Well, when he came do* n
they all gathered round him. They did when he
got to the foot of the steps, but there was no
movement until then ? No. It stayed perlectly
stationary until he got to the foot of the steps,
you saw no disturbance ? None at all. You
were standing then within three or four feet of
where Archie went out of the market house ? I
suppose that was it—I can't remember exactly.
He passed full in your view as he went out ?
Yes. And you were within a few feet of him;
were you within a few feet of him when Tom
Powers grasped him ? I can't tell exactly. Were
you within a few feet of Archy when Powers laid
his hand on him? Four or five feet. Were you
nearer Archy than Powers ? Nearer to Archy.
Were you facing east ? No, 1 had my face to the
south. Your left hand was east and you were,
facing Arehy, then he hadn't turned to go out of
the arch ? Oh yes, when he came down stairs I
was looking at him—I cannot tell precisely the
position I was standing in. But I want to know
precisely the point ue was at when Tom Powers
grasped him ? He was in the main eastern arch.
Where were you at that time? To the left of
Powers, two or three feet from him. How far
were you from the arch; which way was your
face? It was turned about half round. Yes, but
I am talking about the place Archy was standing-
on, when Tom Powers laid Ms hand upon him?
I have told you he was in the corner. Where
was Archy; was he inside the arch when Powers
put his hand on him ? He was just about even
with the arch, going out. He was facing north?-
I cannot tell, the offcers had him, he was moving
round to the right. Now, how thick are the
walls ? About eighteen inches I think Had
Archy turned in that way before he turned out
that way ? Yes he was standing about the edge
of the arch at the time Tom Powers put his hand
on him. Which hand did Powers grasp him
with ? With his left, I think. Did you see his
right hand ? No. You didn't see a knife in his
right hand ? No, no weapons at all. What did
he say ?- He said "give him to me." Where
were yon standing? Well, to the left of them as
I have told you before. Well, but I cannot
understand yon to save my sonl; have you
ever seen this plot of the market house;
(showing a diagram to the witness) ? No,
never in my life. Archy was standing where ?
j ust about where that shading is, (pointing to a
spot on the diagram, representing the south edge
of the main arch.) He was standing in the arch
then? On the edge of it. Was the arch over hia
Bead ? Well, he had just moved at the time; if it
bad been raining the rain would have come upon
him. Where was Tom? Right behind him*
Where were you? Outside the market house.
You were outside the market house when Tom.
Powers put his hand upon Beebee? Yes, sir.
You were on the pavement and Tom. was outside
the market house ? Yes, he was just where I've
told you. 1 understand you to say that Arehy had
just passed out of the arch, so that the rain would
have dropped on him if it had fallen? Yes, sir.
And that Tom. Powers was right behind him ?
He w»! a little to his left, I think, or so, I cannot
be positive. - Where from you, where from Archy ?
I was a little to the left. How far from Archy ?.
About five or six feet. . Was there any body be-
CONVENED AX RALEIGH, NORTH CAROLINA.
213
tween you and Archy ? Yes, sir. Who? The
policemen. Wern you trying to get to Arch v ?
No, sir You had made no ag: e -reenr with any
body? No, sir. Y-u know nothing of such >*n
agreement or combination for the ki ling of thh
negro? No, sir, I do n t. Do vou kuow that
Sam Phillips or s no-body else was eoncet ned in
Such a combination ? I don't; positively I do mot.
Then you were a li*tie distance from the eastern
end of the arch when this grab was made by
Powers, and be said—what? ' Give him to me "
Did he say it in a mild tone or decidedly? De-
cidedly. In a commanding tone ? Yes N"W I
want to know if you understood it a a positive
demand for that prisoner ? I did. What was the
sheriff's reply? The reply from the sheiiffwas
" he is under me, sir," or something lik" that
Do you recollect Sheriff Hard.e's t liieg Monk to
go away ? 1 don't recoil ct. Now, 1 want to kn-.w,
betore Sheriff Hardi» had g t rid of Powers, if
Monk was upon him ? Yes. These things occur-
red almost at one time, th n? Yes sir. You saw
Mok h .rea knife, ai dstrike.it him with it then and
there ? Yes sir. Did you see .Monk strike him
with t' at knife more t an once ? I dou't know
whether he struck him or not. Well, he struck
any way. was it once or twice? Twice, I reckon
Was that be onlytime vou saw Mor.k strike him,
or st. ike at him, with ikuie? That was the onh
time. Well, when was the next t.iineyou saw Monk?
Well, after the shooting. Did you see Monk
make any effort with the knife, except at that
time, before he was shot? Not before be was
shot. He hadn't got down as far as that little
arch at that time then ? No, sir, it was just as he
got out of the market house. How long between
the time that Arcby got out of the arch and the
time that he was killed ? No time, I suppose a
minute ? Do you think it was a minute ? I de-
clare I don't know. Did things go on in very
rapid succession ? Yes, sir. Was there any stir ?
Only that the crowd around were trying to see.
You heard no outcry in the crowd ? No. You
heard the sheriff telling them to hold back and
telling the men to use their clubs ? He might
have done that, but I didn't hear; Mr. Wemyss
was using his. Did you see a knife fall out of
Monk's hand? No, sir. Or out of anybody's
hand ? No, you could not have heard the drop
of a knife in such a place. W ell, some people have
different opinion about that. Well, I never heard
it. Was there a great noise at the time? No,
nothing to make a man notice, more than that you
could not hear anything for the policemen were
hollering at them to hold back. Did they seem
to be exerting themselves to keep off the crowd ?
Yes, sir. Was the crowd pressing on them?
I don't know, sir, I can't say whether they were
doing that or not. You say you saw the police
strike? I >-aw Mr. Wemyss several times knock-
ing. Was be the only one? There might have
been another, bat I can't swear to anybody else.
What was he doing it for ? He was telling Monk
to keep back. Did you see any other clubs used ?
I don't recollect. Did yon see any pressure of the
crowd at all towards the prisoner? No, they gath-
ered round as if to see. You were in the crowd ?
I was standing there in the crowd. How—close
to the prisoner all the time ? I moved along as he
did. You were right in the midst then, were you
not? Yes, sir. Were you not hustled about a
good deal? Well, I was moved round a little.
Were you not inconvenienced? Not particularly.
You didn't expect any violence then? No, sir,
bad no idea of it. Not at that time? No, sir.
Then, after this thing occurred about the man
Monk and the knife; Tom Powers was standing at
the door of the large eastern arch as Beebee came
out? I can't be positive; if he was not standing
there he was somewhere about th^re. Now do A.
uniler tand vou to say that from the time Arcby
Beebee got to the. foot of the teps, uniil he got
outside the arch no demonstration was made? No,
sir, just as he got out, Powers and Monk tr ade at
him, one after the other. Had Tom let go of him
when Monk made at . 'fn? I don't know. Did
you see Tom P wers put bis hand oq him ? I saw
him throw hi* hand that wav—
[Witness here threw his hand up and out from
him as if reaching over a crowd J
Did you see it come back? No, sir. When
Powers nut bio band out that way did vou see
Sheriff Haidie seize bim by the wrist? No, sir,
You don't know whether that hand was on A chy
or not, when M-nk made his assau t and camei< r-
ward with the knife? I do not. Hai Sheriff
Hardie ceased speaking to the crowd when Monk
made h:s a-saul ? Why he, was talking while he
pistol was fired. Hardie was stil. ralkirig? Y s.
And whiie he was thus talking, it was that ibis
mil Monk was cutting? Yes. Then from the
time they left the «r<h until ther got down to ttie\
south corner of the lit le arcn, you never
saw any assault made up n Archy ? I did
not. I understand \ou to say oistinctly hat
the only time you saw Monk cutting a this
man, except aft»r he was dead, was just aiter
Tom Powers put his hand upon him, and that
Archy was there just at the outside door? Yes,
sir, lie was, when Tom grabbed him, 'twas just
like that [witness here gave a fillip of finger and
thumb.] How far had Arcby got from the little
arch when Monk struck at bim with the knife?
From the little arch—from the big arch—I can't
tell. Had he gone a step ? I don't know. Had
he gone two? I don't know exactly. It seems
to me that yon said Tom Powers had hie hand
on him immediately after he got outside the arch,
and that Monk attacked him immediately after
Tom Powers, had he time to take two or three-
steps from the time Powers left his hand off un-
til Monk put his hand on ? He could have taken
two or three very short steps. Then I under-
stand you to say in your examination-in-chief
that it was while Monk was making at him with
the knife that the negro bent over ? He was
dodging, I can't tell precisely. It was just after
Tom Powers made the attack upon him, Monk
was pitching in with the knife, and before he
raised himself fully up he was shot. And you
say he must have taken two or three short steps ?
I wont be positive about that. Are you positive
about this, that the negro was dodging about
while the knife was being struck? Yes. And
while he was straightening up from that position,
that he was shot ? Yes, sir. And you say he
was not shot until he got at the south side of the
little arch? Yes, sir. And about two feet from
the edge of the pavement ? Yes, sir. Did you
see him fall down at all ? I saw him fall when the
pistol fired and Sheriff Hardie was with him.
Did you see him before the pistol fired ? No,
sir. Did you say Wemyss on his left ? Yes, sir,
I never saw him fall exactly, never saw him on
his hands and knees, I lost 6ight of him pretty
well, but could see his head all the time. Did
you ever lose sight of him at all, and you swear
you never saw him on his hands and knees ? I
do sir. It is your opinion that he didn't go down
on his hands and knees ? It is. Did you see
any of the officers fall with him ? No, sir. Did
you see them helping him up ? I don't know, I
suppose they were trying to keep him up. Well,
when he reached this point you say Sam Phillips
presented that pistol and fired ? He bad the pis-
tol in his hand. Did you see him draw it ? I
never saw him draw it. Did you see him cock it ?
It was already cocked, I didn't see him draw it,
FRGCBEDINGS OF A MILITARY COMMISSION,
«or cock it. Did you see him fire it ? I did see
him lire it. Did he have the pistol presented
, when your eye caught it ? No, sir, it was after it
fired. When you saw him first what was he do-
ing with it? He had fired it and bad brought it
up. You didn't see Sam Phillips until the pistol
fired; you didn't see him draw the pistol? No,
sir Nor cock it? No. Nor present it? No.
Did you see him fire the pistol ? .1 did sir. Then
you saw him in the very act of firing the pistol,
for the first time,that was the first time you had
seen him that day ? Yes, sir. Did you see him
flourish it round that way ? No, sir. Did you
hear him say " the m-gro is dead, but I have not
done it?" No, sir. You saw the pistol in his hand
from the time it fired until he put it back ia his
breast ? I did. Did he make such a remark ?
Not that I heard. Were you looking at him ?
Yes. While he had the ©istol in his hand he
made no such remark ? No, sir. And you swear
it ? I do. He did hold up the pistol ? Yes, sir,
while you'd say one, two, three, lour, five proba-
bly. Did you see him take the cap off? No.
Was any one between you and Sam Phillips when
he fired ? Yes, two or three. Were tbey white
•or colored? I can't tell. You saw him however
distinctly; how much of him; from his head
to his heels ? No, about to here (pointing to his
waist.) About to the middle of the body; about
to his waist ? Yes, sir. Did he put it in the arm
of his coat? He put it down in that direction.
[Witness here placed his hand across his body
and under his coat as if placing something in its
eide pocket.]
He didn't put it into the arm of his overcoat ?
I am not positive, well he put it just as I tell you
and he could not have put it in his coat sleeve, if
ihe put it that way Did you say he had an over-
coat and put in the sleeve of that overcoat ? I
am not positive about his having an over coat—I
cant describe his clothes. But ODe thing you saw
about him was the pistol ? He might have had
one on for all X know. Can you say what sort of
hat he had on ? No I cannot. Can you tell any
thing on earth about him ? No: but that he shot
Archy Beebee. Do you know the color of his
clothes or any part of them ? No, 1 can't recol-
lect. Nothing but that you actually did see him
fire it, did he make use of any expression ? No.
Did you say'that pistol was cocked when it was
presented ? Yes, I didn't notice the cock but I
saw it fire. You saw the flash? Yes. You saw
the smoke ? Yes, sir. And heard the report ? I
did. And didn't take your eyi-s off him all that
time? No. Did you see the negro fall ? Yes.
Did you go to the negro ? No. He drew the pistol
back when? After the nigger fell. You say,
you saw the negro fall before you saw Sam Phii-
lips draw back that pistol ? As he drew up the
pistol the nigger fell. Then you say, Sam Phil-
lips returned the pistol and turned off ? Yes, sir.
You never saw Tolar before that day ? I never
did. When was the first time you saw him after
that day ? After he came back from the country.
Did you tell him you knew anything about that ?
No sir. Have you any pecuniary interest in this
trial? Not a bit. You have no enmity or ill
will against Sam Phillips ? Not a bit, sir—I nave
more dealings with him than with Tolar. Have
you talked about this thing since you have been
here? To nobody at all. None at all? Nobody but
my counsel—I mean Mr. Fuller, the counsel
for the accused. You have not talked with
■anybody else about this business ? I was told
not to do so. Yes, that's what I supposed;
were you ever questioned or examined about
this thing by any one? None but Mr. Fuller.
You never volunteered . aDy information- to
any United States Army man about this bus-
ineas in any ^shape or way ? No, sir. You
say you have not talked about this matter, you
haven't even said that you did not know any-
thing about it? No, sir, I haven't talked to
anybody about what 1 knew about it. Have you
not said to an officer of the United States army,
named Pepper, in this city, since you came here,
that you didn't know who shot the negro?
No, sir. Nothing of that sort ? No, I have been
asked several times by people what I knew of it,-
and I have told^ them I didn,'t know anything
of it, and didn't know whether he was the person
or not, and that when I got on the 6tand, I
would tell all I knew of it, and not till then.
This man I speak of, speaks of a conversation of
an hour or an hour and a half? I don't know
anything about them. Have you not expressed
to this officer that this Court had no right to try
this offence? I never made use of such an ex-
pression, sir, I never thought of such a thing.
And you now swear, knowing what the conse-
'quences may be to Sam Phillips and others in
presence of Almighty God, who knows your
heart and conscience this day, as none of us can
know, that Sam Phillips fired that shot, and you
are as confident of that as you are of your own
existence ? Yes. And you have no doubt of it,
whatever? No. And never had since the time
it occurred ? No. Why didn't you speak of
it before? Well, it was not my business.
Was that your reason ? Yes, sir. If you saw a
murder committed in the streets of Fayetteville,
do you think it is your business to say nothing
about it ? Well, but I did say something about
it. Yes, but not for some months after it oc-
curred? No, to nobody except my wile. Now
do you think i you'd seen it, it would be no part
of your duty to give information of it ? Well but
I have. Yes, but you kept It for three or four
months; I want to know, if you were the 6olila-
ry witness of a murder in Fayetteville, would you
conceal it? No, I would report it. Wh\ did
you not report this ? Well, because I didn't have
anything to do with it. Well, but you would
have had nothing to do with it, if you went into
the street and saw a man shoot another, was your
reason because it was a white man that shot a
negro ? No. Did you not feel greatly outraged
that a negro should attempt to commit rape on
a young lady ? I did, but the law should take
its course. Do you mean to say this, that you
saw a foul crime like murder committed in the
streets of Fayetteville, and you didn't conceive it
your duty to inform anybody about it? Well, X
consider X did my duty when I went to Mr. Ful-
ler; I am close confined to my works and have no
time to spare "for anything else. Was your con-
science not disturbing you before? No, it all
wore off, I had forgotten all about it. Until Mr.
Tolar was arrested ? Yes, sir, I heard so many
people talking about it. Did you know that the
civil authorities were investigating the matter ?
No. I understood you to say that you were sum-
moned while Phillips was still on trial ? I don't
recollect positively about that. Well, didn't you
get here before Phillips was discharged? Yes,
sir. And you were summoned before you got
here ? Yes. You were a witness in this ease at
the very time Phillips was on trial for his life ?
He was released, I think, sir, the day I got here.
Yes, you were summoned on the 21st to appear
on the 25th? I got hereon the 24th, Phillips
was released after you got here? Yes, sir. At
the time you were summoned as a witness on the
trial for his life, you were expecting to testify ex-
actly as you have done now ? Yes, I did. Even
though Phillips were on his trial ? Yes, sir, the
very .same way.
By Counsel tor accuse^:
C&NVENED AT RALElOtt, NORTH CAROLINA.
Mr. Atkinson, you say the subpoena was served
on you in this case on the 21st July '? It was, I
think, sir. Do you know when that subpoena
was issued, sir? I have forgot, my memory's not
good any how about it, I can't recollect, I think
my subpoena was dated Raleigh, 21st, probably;
I know I was ordered to report here on the 25th,
and I got here on the 24th. Do you know if Phil-
lips had left Fayetteville by the time the subpoe-
nawas served upon you? Yes, he had come
away. You told your wife about it the day it
occurred ? That night I think, sir. And you
kept it to yourself after that time because it was
no business of yours as you could see, until you
had learned that I had been employed as Counsel
for Capt. Tolar, and as Tolar's Counsel you gave
me the statement which you have made here to-
day? I did, sir, and you know that yourself.
By the Commission: Did you see the pistol
at the moment the trigger was pulled ? Yes, he
had it in his hand. Did you see the pistol be-
fore you heard the report ? About that time.
Before yon heard the report ? Yes, I seen it point-
ed. and immediately it was pointed it fired. The
question is. did yor see it before you heard the
report ? Well, before I saw it I heard the report,
the time I saw if the pistol fired. The pistol had
fired, or did fire ? Did fire. You swear that the
pistol was just in the act of being discharged when
you saw it first? I mean at the very instant I
iiW if, it fired.
(Tuo Commission: We don't think the question
is answered, it must be yea or nay.)
The Court in-ists opon a positive answer to that
question, Mr. Atkinson; did you see the pi tol
before you heard the report? I saw the pi«tol
immediately—as soon as I saw the pistol it fired.
Then if I understand your answer you mean to say
tha; at the very moment you saw the pistol, as
your eye glanced on the pistol it was discharged?
Yes, 6ir. You saw the smoke? Yes, sir. You
beard the report? Yes, sir. And saw the flas ?
Yes, sir. At the ve-y moment? Yes, sir. Then
you didn't see it until you heard the report? Yes,
sir
The Commission : You must answer the question,
sir, was it before you heard the report or not ?
Before I heard the report, sir.
Commission: Very well, sir.
What caused you to louk at the pistol at that
moment ? Because I seen it. What attracted
your attention towards that pistol and that point
at that moment? The firing, sir. But you have
positively sworn that you saw the pistol Defore
you heard the report ? W 41, the pistol, sir, I saw
it just as it fired. l>o you mean you were attract-
ed Oy the pointing of the pis el ? It was all very
quick, sir. I am well aware of that, we want to
get at what it was that caused jou to look at that
pistol; did you see Mr. Pbilbps before you saw the
pistol ? No, sir. I don't underst >nd why you
were attracted to look at the pistol ? Because,
sir, it was all done so qui k; it wss pointing at
him. The quickness with which it was done was
what attracted your attention ? And the pistol of
course.
The Commission: What was your answer ?
(to the reporter.) read the answer.
Tho testimony as to what attracted his attention
to the pistol was read from the records.
At 2 o'clock, P. M , on motion, the Commission
adjourned to meet at 11 o'clock, on 24th inst.
Raleigh, N. C., Aug. 24,1867,11 A. M.
The Commission met pusru >nt to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused, and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
James W. Atkinson, a witness for the defence,
upon hearing his testimony read, made the fol-
lowing corrections:
To the question by the Counsel for the prose-
cution.
Have you not.stated, in the presence of several
persons, that you could have brought up two
hundred dollars, or more when you went home
the last time ? (In the original record) Don't
recollect anything of the kind.
Witness wishes to add here: " If I had been
in want of two hundred dollars or more, I could
have borrowed it, but certainly no body offered
to lend it to me, and if I had borrowed it, I would
have to pay it back."
To the question by the Counsel for the prose-
cution. "And the only supplies you have had,
are those that you drew from Mr. Lutterloh?"
(As in original record.) "Yes; but General
Avery gave me some papers to get money." Here
the witness wishes to correct, so as to read—
"Yes, but General Avery made out my account
as witness in this case, on which I obtained
money."
Yesterday's proceedings were then approved.
James H. Mtrover, a witness for the defence,
having been first duly sworn, testified as follows:
Examined by the Counsel for the accused.
What is your name? James H. Myrover."
Where do you reside? Fayetteville, North Caro-
lina. How long have you resided in Fayetteville ?'
Ever since my birth, about twenty-four years.
What is your occupation ? Editor. Were you
iu Fayetteville on the day Archy Beebee was
killed ? Yes, sir. Wereyou at the market house
that day ? Yes, 6ir. At what time did you go to
the market house? Between two and three
o'clock. In the afternoon ? Yes, sir. For what
purpose did you go to the market house ? For
the purpose of reporting the preliminary trial-
The preliminary trial of Arehy Beebee ? Yes, sir,
I had understood there was to be a preliminary trial
before a magistrate. Did you go into the court
room? No, sir. Why did you not go up, sir. I
was not permitted to do so, I attempted it. How
long did you remain at the market nouse ? I don't
know exactly in time. Did you leave there be-
fore the man Beebee was killed ? No, sir. You
remained there until after the man Beebee was
killed? Yes, sir. About what position in the
market house did you occupy, while there ?
Well, I was first at the eastern portion of the
market house, and then in the center, and south-
ern portion. Near what part of the eastern por-
tion ? I was directly under the main eastern
arch. That was when you first went there ?
Yes, sir. And then about the southern portion ?
Yes, sir And then near the center? Yes, sir.
How much of a crowd was there nnder the
market house, when you first got there ? It was
before the time of the trial; he had been removed
from the guard house and I left the market house
and went across the street; there was not much
crowd thereat the time. How large a crowd was
thens at the time Beebee went up stairs, during-
the time the trial was progressing ? I should judge
that there were a hundred persons there What
was the size oft he crowd, at or about the time of the.
shooting, larger or smaller? I don't know, sir.
During the time you were there under the Mar-
ket house and before Beebee was brought down,
was the crowd in an excited, agitated state ? It
didn't appear to me so, sir. Did you mix freely
among the crowd at that time ? Yes, sir. Was
there anything occurring in the crowd that at-
tracted your attention ? No, 6ir. Do you know
now, or did you know then, of any conabiration.
PROCEEDINGS OF A MILITARY COMMISSION,
or any agreement or any4, conspiracy, to klil tlie
man Beebee, or do him any harm ? L do not, and
I did not. From what you saw of the appearance
and the demeanor ot the crowd, there on that
occasion, was it indicated to you that there was
any undue heat or excitement about those who
were assembled ? The crowd was interested in
the trial, nothing further than that, that I noticed.
During that time did you see any ot the prisoners
at.the bar, either of these three men, behind me,
Captain Tolar, Thomas Powers, or David Wat-
kins otherwise called Monk. I saw two of them.
Which two, did you see. Capt.' Tolar and Monk
Julia. Where, and at what time, did you see
Capt. Tolar ? I &aw Capt. Tolar standing at the
northern span of the eastern arch, nearly against
it or against it, I am not positive which. What
was he doing ? He was doing nothing, standing
there. How long was that before the man Beebee
was brought down stairs ? It was some time, it
was before Miss Massey was brought up as well
as I can recollect. And after that you don't re-
member to have seen him at all ? No, sir. At
that time, did you see Tom Powers? No, sir.
Monk? Not at that time. Ed. Powers? Not
when I saw Tolar, J. G. Leggett? No, sir.
Ralph B. Lutterloh ? I didn't see him at all. sir,
until after the killing. Sam Hall ? Not at that
time. You saw then nobody at that time, except
Capt. Tolar? No, sir. And he was standing
alone ? He was standing at the arch—there were
persons near him, but there was not any one in
direct contact with him. Anybody in conversa-
tion with him ? I spoke to him, sir. What was
his manner and appearance there at that time?
I noticed nothing unusual. They seemed calm and
collected ? Yes, sir. You say you saw Monk ?
Yes, sir. Where, and at what time did you see
him. Alter that I passed through the market,
and went there on the southern side and spoke to
Dr. McDuffie, and Sheriff Hardie, and I then
saw Monk standing on the pavement, I asked
also of Major McRae, who was there, I asked
him who he was, he told me that was Monk.
Where was Monk at that time ? He was on the
pavement pointing South. Near the large arch ?
Yes, sir, How long was that before Beebee was
brought down ? 1 can't tell, sir. What was he
doing? He,was doing nothing—he was walking
up and down the pavement, Dr. McDuffie nodded
to him, and spoke to him. W as that the only re-
mark that was addressed to him? I didn't hear
the remark, but they were not in regular conver-
sation. Did you see him in conversation with
anybody? No, sir. Was there anything excited,
or unusual about his appearance, or manner ? I
didn't notice it, sir. Did you see E. P. Powers
there, at all? Yes, s r. When did you see
him first? I saw him at the time that I
was in conversation with Sam Hall. When was
that, Mr. Myrover ? That was between the time
Miss Massey went up stairs and the prisoner was
brought down. Where did he go ? He passed
away from us. Anybody with him ? No, sir.
In conversation with anybody ? No, sir. What
was his manner, excited ? No, sir, he was walk-
ing down towards the eastern part of the market.
What was he doing, sir? He was doing nothing,
sir. Was he stationary, or was he moving when
you saw him ? He was moving. Did you see
anything of Ralph Lutterloh ? I didn't see him,
sir, until after the killing Did you see anything
of Mr. J. G. Leggett? Yes, sir. Where did you
see Leggett? 1 saw him before I left the eastern
part of the market. What was he doing? He
was doing nothing, sir Was he standing still ?
Yes, sir. In conversation with any one? He
was conversing with me. Any one else ? A gen-
tleman introduced him to me. That was your
first acquaintance with him? Yes, sir. What
was his manner, excited? No, sir. Calm? Yes,
sir. Did you see anything of John Maultsby?
No, sir. Did you see anything of Henry Sykvs?
No, sir. Did you see anything of Sam Hall? Yes,
sir. Just state, if you please, when you first 6aw
him, how long you were with him, and when you
parted ? I saw him first, inside of the market
house. About what point ? About a stall which
foes by the name of Tom Drake's stall I think,
fear which corner of the market is that ? It is
on the southern side of the market. Southern
and western, southern and eastern, or where?
It is further west than east; it is the next stall to
the last western stall on the southern side. Is it
above the bell rope further towards the west?
Yes, sir. There you first saw him ? Yes, sir.
Did he go to you, or did you go to him ? He
came to me, sir. Where did he come from Mr.
Myrover, do you know ? I don't recollect. What
time was it that Hall came and joined you ?
Some short time before the prisoner was brought
from the hall alone. Was it after Mrs. Massey
and her daughter came down? I don't know,
sir; I didn't see them come down. How long do
you think it was before Beebee was brought
down ? I suppose it was at least five minutes.
How long did Hall remain with you ? He re-
mained with me until the negro was shot, after
the killing we parted, and I went down and look-
ed at his body. So Hall remained with you until
after the negro was shot ? Yes, sir. About what
position did you and Hall occupy, until you
separated, which you say was about five minutes
from the time you got together; about what point
in the market house 1 We were standing right
together, and I had my foot on a bench in front
of Tom Drake's stall. And Hall was standing
next to you ? Yes, sir. Was that west or east
of the bell rope ? It was to the west ol the bell
rope. And you swear that Hall was there with
you, for at least live minutes before the shooting
occurred, until the shooting occurred ? Yes, sir.
He didn't leave your presence at all, during that
position? Not until after the negro was shot.
Have you any doubt about that Mr. Myrover?
None in the world. Well, sir, after that, what
became ot Hall ? I don't know, sir, he may have
gone down through the market, I didn't tro with
him, I went out through the southern arch, and
went around and looked at the boy, who was
then dead. You separated from Hall there?
Yes, sir. What became of him after that time
you don't know ? I don't know, sir.
Cross-examination by the Counsel for the pros-
ecution 1
Where were you standing when Archy came
down stairs ? 1 was standing with my foot
on the bench at Tom Drake's stall. That is
west of the bell rell rope ? Yes, sir. You didn't
move out with the crowd? No, sir. You say
Mr. Hall was with you, and he didn't move oat?
No, sir. Did you see Archy when you came
down stairs ? 1 could see him as he passed down
the steps. Could you see who was with him, sir?
Yes, sir Who was with him? The guard Do
you remember who the guard consisted of? No,
sir, I remember one of them. Who was that?
Faircloth. Did you see Wemyss there, that you
remember? I don't recollect. Do you remem-
ber seeing Hardie there? Yes, sir. Do you re-
member seeing Hornrinde and McGuire there,"
when they came down stairs ? No, sir. Did you
see any attempted violence of the crowd, while
he was coming down 6tairs, I mean before he
reached the foot of the stairs? No, sir. Did
you see any attempted violence made by any per-
son while he was still in the market house pass-
ing from the foot of the steps to go outeido.
CONVENED AT 1JALE1GH, NORTH CAROLINA.
217
of tlie market bouse ? Before he got out of
the market house he passed out of my
sight. Is there a pillar in the middle of the mar-
ket bouse? Yes. sir. You could see him at the
bottom of the stairs, and you could see him as he
passed out of the arch ? No, sir. He went out of
your sight for a moment, then ? Yes, sir. Did
you see any disturbance in the crowd just as he
got to the arch, or about the time he would have
got there ? I saw a Crowd rush up, and a woman
run from it up towards me, a black woman. That
was just after you saw him moving out of your
sight ? Yes, sir. Did you see any thing of Tom
Powers there that day ? No, sir. Did you see
any thing of Monk there that day? Yes, sir, not
after I saw him at the southern side of the market
house, near the center. Did you hear any demand
made for the prisoner ? No, sir. Did you hear
anything like a demand? I heard voices, and
voices speaking, but I could not distinguish. Did
you hear any cry, just before the shooting, of shoot
him, shoot him, kill him, kill him ? No, sir.' Did
you hear any cry of he'll get away ? No, sir.
Did you hear any cry, or any expression in the
crowd that day? I only heard one expression,
that I could distinguish, from the negro woman who
was coming towards me. What was the expression ?
She said they were going to kill that man. That
was at the very moment the crowd rushed up, as
he was passing through the arch? As he was
passing through the the main arch the crowd
was rushing into the main arch—the maiu eastern
arch, I said they were rushing into the main east-
era arch—they were rushing that way. You saw
the motion of the crowd outside pressing to-
wards the main eastern arch ? Yes, sir. Did you
see any motion of the crowd inside ? A portion
of the crowd that was inside was rushing to wards
the main eastern arch. So far as you could
see? Yes, sir. You are perfectly confident and
have remembered it from that time to this, that
you were in conversation with Sam Hall at the
time this tumult occurred? Yes, sir. How long
were you standing in the eastern end of the mar-
ket house, when 'you first went in, after Archy
went up stairs ? I remained there until Miss
Massey was carried up stairs. Did Miss Massey
go up stairs after Archy? Yes, sir. Are you
confident of that ? That was my impression, be-
cause he was carried from the guard house, and I
followed him, and I saw Miss Massey come up
afterwards—I may have lost sight of Archy. And
you moved away from there immediately after
she went up ? Not immediately. How long did
you remain there ? Ten or fifteen minutes—not
that long I guess. At the time you were stand-
ing there, I understand you to say that Captain
Tolar was standing against the northern extremi-
ty of the eastern arch ? Yes, sir. You didn't see
him move away from there 2 I moved away first.
You left him standing there when you moved?
Yes, sir. Did you see who was in conversation
with him, or standing about him at that time ?
There was none, sir. Have you disclosed every
thing you know of this transaction ? As far as I
can remember, I have.
Questioned by the Commission:
The Court understands you to say that you had
never seen Monk, before that day ? I mean to
know him. And that you asked at that time who'
he was. Yes, sir. You also stated that there
was nothing unusual in his actions? Yes, sir.
Now, if you had never seen Monk before, how do
you know there was nothing unusual in his ac-
tions. His appearance is very peculiar it seems
to me. His appearance then was unusual ? No,
sir, I mean his personal appearance was such as
to attract one's attention. What the Court wanted
to get at, is, how you are able to state that there
was nothing unusual in his actions, at that time,
"if you had never seen Monk? Taking the whole
personal appearance of the man to be'his actions,
there may have been something unusual in his
actions—I was struck at the man's appearance,
and asked who he was.
Matthew Morgan, a witness for the defence
was duly sworn.
The Counsel for the accused tendered the wit-
ness to the prosecution.
The Counsel for the prosecution declined to
examine him.
The Counsel for the accused said ?
" I Will state to the Commission that we have
another witness in attendance to day who arrived
yesterday, but his testimony is dependent upon
other testimony, which must necessarily come in
before it; we have two witnesses who arrived here
this morning but they are so much jaded, by the
long stage route of last night, that unless the
Court shall request it, we prefer not to introduce
them to day. Three witnesses are all we have in
the city."
The Judge Advocate said:
"As far as the prosecution is concerned we
prefer going on."
On motion the Commission adjourned, to meet
on Monday Aug. 26, at 10, A. M.
Raleigh, N. C., Aug. 26, 1867, H) A. M.
The Commission met pursuant to adjournment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
The reading of the testimony taken on Satur-
day, the 24th instant, was waived, there being no
objection thereto.
Saturday's proceedings were then read and ap-
proved.
The Judge Advocate stated that Matthew Mor-
gan, a witness for the defence, had made appli-
cation to him for his certificate of attendance,
which he had declined to give, without the orders
of the Commission.
The Counsel for the accused said:
" May it please the Court: I understand that
the Court here is hound by the rules of practice,
which govern in the State courts, and which gov-
ern in the courts of the United States. Having
been informed by the Judge Advocate that the
subject would be laid before the Court this morn-
ing, I have looked somewhat into the authority,
and in the different States, as well as in the State
of North Carolina, if there is one point in prac-
tice that is well settled, that is settled beyond all
cavil, it is that a witness who has been tendered,
is entitled to his certificate of attendance, and en-
titled to his costs. I would he frank to the
Court, and state to them, that while I do not find
an authority directly enunciating that doctrine,
that I found it laid down in all the books, as so
well a settled practice of evidence, that they
merely referred to it in going on. The Supreme
Court of North Carolina, in a case which was de-
cidedin 1859, reported in 6 Jones, alluded to it
in this way that no witness can have his costs un-
less he be examine! or called and tendered. Al-
lusion is made to it in that way. I say it, sir,
and if the Counsel for the prosecution were here,
who is familiar with the practice, I w<ould chal-
lenge' denial, that this is one of the best settled
points of practice in North Carolina. I have to
state further that it is the practice of this Court,
and for that I cite the authority of the Judge
Advocate himself. A witness for the prosecu-
tion, I forget his name, Jones or Hall, a black
man, that the Court will perhaps remember, was
called, having been duly subpoenaed, was sworn,
his name was asked, his testimony was not taken
PROCEEDINGS OF A- MILITARY COMMISSION,
$t all of any matter pertinent to this issue; he
■was tendered by the Jndge Advocate to the Coun-
sel for the accused, was declined precisely as in
this case, and I am informed—the Judge Advo-
eate can state differently if such be not the fact—
that there was no question at all made with re-
gard to giving htm a certificate of attendance.
I will state to the Court further, that if there
can be any question in the minds of the Court as
to the general practice, and as to the practice of
the Judge Advocate in this case, settling the law
here most clearly, it can be made to appear to the
Court that this man Matthew Morgan was sum-
moned as a material witness, for the purpose of
giving testimony very material to the issue be-
fore the Court; that he was not examined -by the
defence because the defence did not choose to
examine him, not because of the immateriality of
his testimony, but simply because the defence did
not choose to examine him; some little tactics
being allowed, as well in the conduct of cases as
in the conduct of matters upon the field."
The Commission was cleared for deliberation,
and after sometime so spent, the doors were re-
opened, and the Judge Advocate said, "The
Commission decides that they will not order the
witness Matthew Morgan to be paid, unless they
can be first satisfied that Matthew Morgan knows
something material to the case. They therefore
will pernnt the Counsel for the accused, if they
see proper, to call the witness into Court and ex-
amine him. Should the Counsel for the accused
decline so to do, the Commission decides to ex-
amine the witness themselves, that they may as-
certain whether or not he does know anything
materials to the case."
The Counsel for the accused, " I have no ob-
jection, I do not wish to say a word against the
ruling, of the Court; I merely desire to suggest
to the Court, not by way of influencing their ru-
ling at all, that in some States where the practice
is perhaps different from what it is in North Car-
olina—I believe the furthest that it has ever gone
is that, if there be a question as to the materiali-
ty of the witness, the "party examining him shall
be required to make an affidavit of the materiali-
ty. Although Matthew Morgan is a material
witness, we have good reasons,- which may sug-
gest themselves to the Court, and certainly sug-
gest themselves to the gentlemen of the expe-
rience of those who are- conducting the prosecu-
tion in this case, and we decline, as we did the
other day, to examine the witness; but we sag-
gest to the Court, to the Judge Advocate, and
the Counsel for the prosecution assisting, very
respectfully, if the Court doubts the materiality,
that it will be conforming to the practice of some
States to require an affidavit only as to the mate-
riality."
The Commission informed the Counsel for the
accused that their remarks had been considered,
but as they declined to examine the witness, the
Commission would examine him.
The Judge Advocate announced that Matthew
Morgan was not at present in attendance, but
had been sent for.
The Commission suggested that another wit-
ness be called—whereupon
James H. Jones, a witness for the defence was
duly sworn, and testified as follows:
Examined by the Counsel for the accused.
What is your name ? James H. Jones. Where
do you reside? Fayetteville. Fayetteville, N.
C ? Yes, sir. How long have you resided there ?
Twenty-six years. Were you in Fayetteville on
the day Archy Beebee or Archy Warden was
killed ? I was, sir. Did you know Archy Bee-
bee ? I did, sir, he was working for me at the
time. In what business was he engaged ? Driv¬
ing a dray for me. In whose employment' had.
he been before he was in your employment ?
John Maultsby's or his father's, both together I
suppose. How long, had it been since he quit
working for Maultsby and came into yourservice t
I really don't know, some two months I sup-
pose. Had you heard before the killing had oc-
curred, that Beebee was charged with an attempt-
ed violence upon the person of Miss Massey ? I
heard it that morning before I got out of bed.
Who informed you ? John Maultsby, he brought
me my smoke-house key, and stable key, that
Beebee had. in his pocket, and informed me that
he was arrested. Charged with a certain out-
rage? Yes, sir. When did you next hear about
it? I heard it in going up to my work. Did
you take any steps to defend Beebee or have him
defended ? That morning, in going up I saw Mr.
Bond, the town Constable at the market house,.
and told him I don't desire the eonversa-
tion—did you make any arrangement for a de-
fence of Beebee,, upon that charge ? In what way
do you mean. I mean in offering to procure the-
services of Counsel, or in any other way ? I did,,
sir. Did any body join you in that arrangement,
that you proposed to make? John Maultsby
did. Were those arrangements perfected, or were
they suggested arrangements ? We were talking,
about it ourselves, and we never spoke to any
person, because in a very few minutes after we-
were talking about it, the boy was killed. Before
that time, did you see Dennis Hogans, or any
other relative of the deceased man, with reference
to that matter ? I met Dennis that morning and
told him to go to the trial and meet me there,
hut beiore the trial, to go and get you. to appear
there for the hoy. He told me he didn't have the
money, and I told him I would see that you were
satisfied. Were you at the market house at the
time Archy Beebee was killed ? I was, sir. What
time did you go there ? I left my work about
five minutes before four. Where do you work,
sir? M. A. Baker's. Where is that, sir? Op-
posite the wagon weights. What street?
Fayetteville street, sir, I think it is. This is
Fayetteville street here ?, I know I didn't know
the names of the streets. How far is that from
the market house ? I guess it is about a quarter
of a mile. You left your work and went down?
to the market house ? I did. Entering the mar-
ket house from which side? From the west
side. What was your object and purpose in go-
ing to the market house that day ? For the pur-
pose of giving hail for the boy, if they would take
it- When you got there, where was Beebee ? He
was up stairs, I reckon, sir, I am not positive-
about it, I think he was up stairs. Where waa
Miss Elvira Massey and her mother, at the time
yon got there ? She was in the carriage, I guess
sir. Don't guess? I didn't see them at all.
Did yon see the carriage ?. I saw the carriage, it
drove off in almost half a minute after I got
there. Then you went into the western end of the-
market house, and which way did you go ? Bight
straight ont, through the eastern, arch. Where
did you stop first ? On the pavement outside.
On the outside of the eastern arch ? Yes, sir.
At that time did you see anything of John Maults-
by ? I saw J ohn Maultsby. Where was he ? He
was standing close to the carriage. Who else did
you see at the carriage besides John Maultsby ?
I saw Israel Bond, Bobert Mitchell, and I think
they are the only ones 1 noticed. Did yon see
William J. Tolar ? I saw Captain Tolar. Where
was he ? He was under the market house, when
I passed through. At what point under the mar-
ket house ? He was to my right as I passed
through. Was he near the western, the eastern,
the southern or northern arch ? Under the mar-
CONVENED XT RALEIGH, NORTH CAROLINA.
219
ket house under the main arch, under the cover
of the market house, further to the northern side,
I think, than to the southern. Who was stand-
ing near him ? There was Mr. Leggett, Edward
Powers, and Mr. Lutterloh, I did not notice any
more. They were standing there near together?
Yes, sir. Were there other persons close around
them? Yes, sir. What were they doing?
8tanding there talking ? How were they talking ?
I don'tknowthe conversation, I heard some per-
son remark, that the boy ought to be killed. Do
you mean you heard some of this party remark
■that ? I don't know who it was, I never noticed.
You don't know who made this remark ? No, sir.
Did you see Capt. Tolar at the carriage? I did
sioti Or near the carriage? No,-sir. You saw
Maultsby there, with the others you have named ?
Yes, sir. I Did you go near the carriage ? I did
not, sir, 1 didn't go off the pavement. Well, sir,
what became of Maultsby when the carriage left?
He walked upto me and told me that Beebee was
found guilty. Where did you walk to? We
walked around on the south side of the market
house. Inside of the market house or outside"?
Outside. Upon the pavement? Yes,sir, near the
south west corner. You there had some conversa-
tion? Yes, sir. With regard to Beebee? Yes,
sir. T don't care for you to state what that was;
had Beebee then been Drought down stairs? No,
sir. Where were you, and where was Maultsby,
at the time Beebee was brought down stairs?
Well, at the first time Beebee came into our view
me and Maultsby walked down towards the south
east corner of the market. Outside or inside?
Outside and looked through the arch. Through
which arch ? Through the corner of the arch on
the south side. When you got there and looked
through the arch where was Beebee ? Beebee was
■on the outside, on the pavement. Beebee had got
out of the market house? Yes, sir. You say,
then, while 'Beebee was up stairs John Maultsby
and yourself were outside of the market, near the
western corner? Yes, sir. That you, together,
yourself and John Mauitsby, about the time you
thought Beebee was being brought down, walked
down on the outside of the market, on the pave-
ment, to the south of the market, and when near
the small southern arch, nearer the east front, that
•then Beebee'had come down from the market and
had got out on the pavement? Yes, sir. And
Maultsby was at that time with you out there.
Yes, sir, he was with me at that time. Did you
•see any rush made upon Beebee at all, either at
that time or any other time? I saw the croud
was pretty close in advance. How far had you
vind Maultsby got before the pistol shot was fired
which took Beebee's life? We were at the corner
■of the market house ? Which corner? The south
east corner. Yourself and Maultsby ? At the
time the pistol shot fired I don't know whether
Maultsby was with me at that time. Was Maults-
by engaged at all in that rush which was made
upon Beebee ? He was not. Where were you at
"the time the pistol shot was fired ? Standing
against the corner of the market house, on the
outside, on the south side, against the south east
corner rather. Do you know who shot the pistol ?
I do not, Did you see Beebee fall? I did not, sir.
And I understand you to swear positively and dis-
tinctly that up to the time "that Beebee had got
•out, upon the pavement, and a very short time
'before the pistol shot was fired that Maultsby was
with you there upon the southern pavement, out-
side of the market house ? He was with me up to
•the time that Beebee was brought out on the
pavement; I suppose he walked some seven or
eight feet before he was shot, I can't say whether
Maultsby was with me then or not; only when the
•boy was brought out on the pavement, he was I
with me up to that time. Mr. Jones, I understand
you are related to John Maultsby ? I am. What
is. the degree of relationship? He is my first
cousin. I am also told you are connected some-
what with the prisoner David Watkins ? I am, sir.
What is that connection ? He is a brother-in-law
of mine. You married his sister? 1 did, sir..
•Cross-examination by the Counsel for the pros-
ecution:
I understood yon, Mr. Jones, that Beebee was
in your employment at the time he was killed?
He was. I understand you went to the market
house for the purpose of giving bail for him ? I
did, sir. Was there any understanding between
you and Mr. Maultsby that you were both to go
his bail? No, sir. You found Maultsby at the
market house when you got there? I did. Why
didn't you go up stairs where the trial was going
on ? 1 undetstood they would not let aoy person
go up. Did you attempt to go up ? I did not.
How did you expect to give bail down stairs with-
out going before the magistrate? I saw the
crowd there, and I expected that they would not
allow the crowd to go up. You didn't apply to
go up at all ? No, sir. Those who were connec-
ted with the case were admitted weren't they, the
witnesses and other persons connected with the
case ? I don't know whether they were or not.
You didn't know that the trial went on up there?
No, sir, I did not. So you knew as well that the
witnesses were admitted to the trial as you did
■that the trial went on? I would suppose that
they would be, 1 did not attempt to go ,up. You
went there for the purpose of standing his bail?
I did, when a man is convicted and sent to jail,
a man can give bail for him as well then as before
he is sent to jail. You expected to give bail for
him after he was in jail? Yes, -sir. What did
you go to the market house then for? I went
down to see if they would take hail after the
trial. If you went to the market for the purpose
of giving .bail, I don't see why you didn't go up
stairs and offer yourself as bail, and if you went
down intending to stand his bail, after he was
brought out, I.don't see why you went to the
market house at all ? I,understood the trial was
to be at four o'clock; I went down there a few
minutes before four, and the trial was over. He
was coming down when you got there? No, sir,
he was not coming down. He hadn't come out
of the room where the trial was going on up
stairs? No, sir. And you made no attempt to
.go up? No, sir. You didn't notify any officer
that you had come there for bail, and therefore
desired to go through the.crowd ? No more than
• I told to Mr. Bond'that morning that I wanted
to give bail. I understood you to say there was
no understanding^between you and Maultsby to
that effect ? No, sir, not before he got to the
market. You say when you came to the market
you came down "Hay street ? I came down the
main street. You entered at the we'stern arch of
the market house? I did, sir. You passed
through to the eastern right straight? Yes, sir. At
that time Archy had come down stairs ? No, sir.
In passing there you remember Capt. Tolar and
Lutterloh and Leggett, and E. P. Powers together?
Yes, sir. They were standing in the east end of
the market together ? Yes, sir. Who do you re-
member seeing as you passed? I saw a good
many others, but I didn't notice who they were,
You remember distinctly of • seeing them ? Yes,
sir. And remember no other persons? No. sir,
I remember no other person. Have you ever
heard them say since they were standing there at
the time? No, sir. Have you read any of the
testimony in which it was told that they were
standing out there? I don't knpw that I have.
Your recollection now of where those , four men
220
PROCEEDINGS OP A MILITARY COMMISSION,
were standing together is predicated upon what
you remember of it at the time? Yes, sir. And
you state distinctly that you passed from the
market house and with the exception of stating
the fact that those four men were standing togeth-
er, you cannot state a single other while you
were in that market house, of any other group
that was standing together, in like manner ? No,
sir. Tflere must have been some peculiarity
about that group that distinguished them from
the otliers ? I rubbed right by them, There was
sufficient in that group to attract your attention
to them, whereas you saw no other group, in the
market house ; how many other persons were in
the market house do you suppose? I don't
know how many persons, probably fifty or sixty.
Did you pass through and go out on the pave-
inent on tfie east end ? Yes, sir. When you got
to the east end, the carriage, you say, was in the
act of driving off? Yes, sir. And Maultsby was
standing near it? Yes, sir. Was Bond at the
carriage ? Bond was somewhere close about the
carriage. Was Maultsby closer to Bond, or the
carriage? I don't remember, sir. Were they
both in your view at the same time, Maultsby
and Bond? Yes, sin You say that as the car-
riage drove off Maultsby turned back and joined
you? Yes, sir. You then walked around to the
southern side of the market house? Yes, sir.
Did I understand that when you got to the south
east corner of the market house, you walked on
up to the west end, on the pavement? Yes, sir.
You walked up there in conversation with
Maultsby ? Yes, sir. And you say that from the
time that Maultsby went to the carriage, or came
from the carriage, until the time you came back
to the little arch, and looked in and saw Archy
come down stairs^ and saw Archy come out of
the arch,. Maultsby .was not out of your presence ?
He was not, sir. As to what became of him after
that you don't know ? No. sir. Why was it you
lost sight of him then ? When the cry was given
to shoot the boy, 1 was looking out for myself, I
didn't look out for any one else. You say that
Maultsby was not engaged in the rush? lie was
not. There was a rush was there ? I guess there
was. I wan't to know whether there was a rush
for him to be in? I could not see, from
where I was. Then how could you see he
was not in it;, if there was no rush what do'
you mean by answering the question that
he was engaged in a rush? I saw that the
crow d, wheu he came out of the market house
was pretty close in advance of him; the cries
was given to kill the boy Beebee, Maultsby
was with me up to that time. Did you see
any rush? I did not, sir. Then you can't say
that John Maultsby was not ei^jaged in the rush,
if there was a rush. ■ He may have been or may
not have been, I didn' t see the. rush. If there
was a rush there you didn't see it? I did not.
But you have already sworn that Maultsby was
not engaged in it;, you don't know anything at
all about where Maultsby was, after the prisoner
passed out? No, sir. You say when you came-
back from the west corner, along the southern
side of the market house, and you stopped at
the arch ou.tlie south.frout ?. I did, sir. Was it
looking through, there that you saw Archy com-
ing down? He was down. Down stairs and
passing out of the eastern arch ? Yes, sir. Was
he in the very act of passing through the large
arch, when you saw him? Yes, sir, .coming out.
Just coming out? Yes, sir. Was there no at-
t'Mnpt made to seize him there at that time ?
Not at'that lime. Did you see Tom Powers,
then? I didn't see him that day. Did you see
at the time thai" Archy passed out of the arch, or
just after he got on the pavement in front of the
market house, anybody make a demand, and
could you hear anybody say "he is my prisoner?"
No, sir. Any words similar to that ? No, sir.
Anything in the nature of a demand or request
that the prisoner should he given up from any
quarter? No, sir. You are not deaf? No, sir.
Could you have heard a noise in ordinary con-
versation, from the place where you were, sup-
posing the voice to be uttered at the eastern
arch? I don't know.that I could, there was so
much tramping. You think the voice would
have been drowned ? Yes, sir. Was the tramp-
ing the only noise ? There was a good deal of
talking. In a loud tone of voice ? Tolerable.
_An excited tone ? No, sir. You heard nothing
"like demanding the prisoner ? I did not. You
heard nothing like the sheriff ordering the po-
licemen to use their clubs ? No, sir. Ybu didn't
bear the sheriff tell Monk or Tom Powers to go
away ? No, sir. Or use any other expression in
the way of forbidding the crowd to press upon
them. No, sir. You heard nothing of that
sort ? No, sir. And you say you didn't see Tom
Powers that day? I didn't see Tom Pow^-s that
day as I remember of. Have you tried to re-
member? Ihave. You have no recollection of
having seen Tom Powers that day? No, sir.
When you were looking through this little arch,
did you see what had become of the group that
had attracted your attention so particularly, in
the market house, when you passed through ; I
mean the group consisting of Tolar, Legget, Lut-
terloh and E. P. Powers—did you see what had
become of that group?"; No, sir, I didn't see
them any more, after! passed them. You saw
none of these men in the crowd anywhere, after
that? I didn't notice them at all. Did you see
any one with weapons on that day? No, sir.
Didn't John Maultsby have a weapon on that
day ? Not that I know of. Did you hear him
say he had one ? No, sir. Did you see any signs
of any? No, sir. Did you hear any of these
prisoners at the bar say they had a weapon on
that day ? I never have. Did you see any one
with a weapon that day at the market house, at
or about the time of the killing ? I did not, sir.
Did you leave the market house before the pistol
was shot? No, 6ir, You were standing still at
that little arch, on the south face, near the south
east corner when the pistol fired? Yes, sir.
Could you seethe smoke from the point where
you stood? I did not, sir. You heard the re-
port, only? I heard the report. You could not
see the flash and the smoke*? No, sir. Did you
hear any exclamations in the crowd, immediately
after the firing? I did, What was it? I heard
some person remark that Capt.. Tolar shot him.
Did you hear it from more voices than one? I
did, sir, several voices. You heard it distinctly?
I did. It was immediately after the shooting was
it? Yes, sir. Did you hear any exclamation im-
mediately before the shooting ? I did, sir. Did
you hear any such cries as kill him ? I heard the
cries of kill him. Did you hear any such cry as
" shoot him," or was it " kill him ?" It might
have been both. That was immediately before
the shooting? Yes, sir. And immediately after-
wards you heard several persons in the crowd
say, loud enough to he heard, " Capt. Tolar killed
him?" Yes, sir, it was cried out there. Did you
see Capt. Tolar ? I did not, I saw him after the
shooting. How long after, before he left the
ground! No, sir, I left there soon after the
shooting, and went on back to my work. Did
you hear any such expression " as he'll get away ?'.'
No, sir. When was the next time you saw Maults-
by, after the shooting ? I don't know whether I
saw him that day or the next. You didn't see him
immediately alter the shooting? James Nixon.
CONVENED AT RALEIGH, NORTH CAROLINA.
221
brought Watkins out of the crowd, he had hold
of hiin soon after he shot; and I went up to Wat-
kins, and grabbed hold of him and told him
to behave himself, Nixon shoved me off, and
Maultsby came up at the time, he said, go away,
lean manage him. Nixon said so? Yes, sir.
What was Monk doing ? He was rearing and ra-
ging. What was he saying ? I don't remember,
he was cursing and swearing; I don't know that
he was cursing anybody in particular. Did he
have any weapon ? I don't know that he
did. You saw no weapon? No, sir. About
that time you say you saw Maultsby? Yes,
sir. And the last time you remember see-
ing him before the shooting was just as
Archy was clearing the arch ? Yes, sir. Where
were you standing when you saw him that last
time? On the south-east corner. Still at the
same spot? Yes, sir. Did Maultsby come up?
I reckon he did. Did he appear to be in mo-
tion or was he stationary when you saw him.
He walked up, I stepped a few steps myself, to-
wards Watkins. Was it immediately after the
shooting that Monk was rearing about there?
Some half a minute or minute probably. Was
it after you had heard these cries of "Capt. To-
lar shot him?" First, 1 saw Watkins, I think
then after I saw him I walked around the crowd,
and I heard the cries of "Capt. Tolar shot him."
You don't suppose the whole thing was a minute
after the shooting, as I understand you? No,
sir. It was all very quick ? Yes, sir. Did you
and Maultsby leave then ? We did not, he part-
ed from me. Maultsby is your first cousin ? He
is, sir. Is there any great intimacy between you
and Maultsby, or is it the ordinary cousinly kind-
ness ? That is all. You married Monk's sister ?
I did, sir. What is Monk's real hame ? William
David Watkins, or David William Watkins, lam
not certain about it. You say as you passed
through the market house you heard from some
quarter when you first got there, that the boy
ought to be killed ? Was it from a single voice,
or from several voices ? It was from one or two.
Was it the same from both ? Yes, sir. Was it
near the group of Leggett and Lutterloh, etc.
Yes, sir. About the time you were passing
there? Yes, sir. I wish you to describe as
well as you can, the nature of the movement of
the crowd as Archy passed out of the main arch,
whether there was any movement towards him
by the crowd or not ? They were advancing
pretty closely on him. You heard no cries at
that time? No, sir. You simply noticed that
they were close on him, sir. and after the crowd
got out there were cries of "kill him?" Yes,
sir. I understand you to say you saw saw no one
with any weapon there that day ? I did not, sir.
That you have no reason for knowing that there
was any weapon there ? No, sir. Do you know
whether John Maultsby has any pistol ? I do
not, sir. Do you know whether Capt. Tolar ha-
bitually wears a pistol or did at that time ? I
am not very well acquainted with Capt. Tolar.
That is not an answer to my question. I don't
know, sir.
Re-direct examination by the Counsel for the
accused:
Mr. Jones, I think I understood you to convey
this idea, in your testimony at first thatup to the
time that Beebee had cleared the arch, and got
upon the pavement that whether a rush was made
at him you don't know but if a rush was made,
you do know that Maultsby was not a party to it?
At the time Beebee came out of the arch Mauits-
by was with me. And if any such rush was made
up to that time, you know that Maultsby was not
engaged in it. lie was not engaged up to the
time that Becbcc came out, but after' that I don't
know. And it was about that time you first
heard the cries of kill him ? After the crowd got
oiuside. Then up to the time the crowd got out-
side, and Beebee got outside, and the cries of
"kill him," were heard by you, Maultsby was not
a party to any rush, or any advance upon liim
which may have been made. Maultsby was with
me up to the time that Beebee passed out of the
main arch, was coming out of the main arch, the
crowd was advancing on him then; is all I know
about Maultsby. Maultsby was not in that crowd
that was advancing on him ? Not at that time he
was not. You say after the pistol shot was fired,
youthen passed" around the jprowd. Yes, sir.
Which side of the crowd did you pass around ?
On the south side, or the south east side ? Where
did you go then ? I went into the crowd far
enough to see Beebee. You passed from the
southern corner around the South eastern part of
crowd, then into the crowd, until you got where
you could sec Beebee? Yes, sir. When was it
you heard those cries of Capt. Tolar had shot
him, where did you get before you heard the cry
first? I was coming around the crowd. Had you
penetrated the crowd upon that eastern front be-
fore you heard that Capt. Tolar shot him, do you
recollect whether you were on the Southern south
eastern, or eastern part of the crowd ? I was on
southeast part ? At that time I understand you
to say you didn't see Tolar? At that time I did
not. You don't know whether Tolar was there
or not? No, sir, not at that time. Where did
these voices proceed from what part of the crowd? .
I really don't know, it was in amongst the crowd
some where. And it was after you had walked
from the south eastern corner, off of the pave-
ment and you were on the south east side of the
crowd, that you first heard the cries ? I had walk-
ed some six or eight steps. How long was it, I
don't expect you to answer with perfect accufra-
cy, how long was it after you heard the report of
the pistol, before you heard the first cry that
Capt. Tolar has shot him? A minute or so.
How was that first cry, do you remember, was it
a loud cry, or was it in an ordinary tone of voice ?
Some one sung out Capt. Tolar was the man that
shot. That you say was a minute or a minute
and a half after the shooting.
The Counsel for the prosecution said he didn't
say anthing about a minute and a half.
The Counsel for the accused said he said a min-
ute or so, which would include two minutes, and
he put it at a minute and a half at the smallest.
Ke-direct examination resumed:
What did you mean when you said a minute or
so ? I was not exactly positive; it may have been
more than a minute, a second or two more, or it
may have been less. You saw no weapons there
in the hands of anybody ? I did not. You have
no reason to know that any person had one ? No,
sir. You had no weapons yourself? No, sir.
Mr. Jones, did I understand you to say that at
the time of the shooting, you were standing
against the wall? At the time the pistol fired I
was. Which way were you facing ? I don't ex-
actly know. Did you move from your position
against the wall immediately, upon the crack of
the pistol, or did you stand there after a little
while, to see what the result of the pistol shot
had been? 'Very quick after the pistol fired,
Watkins was brought out of the crowd by Nix-
on; then I advanced towards Watkins, and Nix-
on shoved me off, then I walked around the
crowd, and the cries was given. Then you wait-
ed there at your place at the market house until
Watkins was brought out ? Yes, sir. And until
you had gone up there, and told him to be quiet?
Yes, sir. And until after Nixon had made the.
reply that he could take care of him? Yes, sir.
PROCEEDINGS OP A. MILITARY COMMISSION,
And after that occurred, then you commenced
walking around the crowd? Yes, sir. And it
was after you had commenced walking around
the crowd, that you then first heard the exciama-
tion Tolar shot him? Yes, sir. Now you say,
when you first passed through the market house,
in going down that portion of the pavement
which was near where John Maultshy was, and
where the carriage was, that in that group of
Leggett, Lutterloh, &e., that you there heard
some one say he ought to be killed? Yes, sir.
On which side of that group did you pass coming
•east, did you pass them 011 your left, or did you
leave them to your right ? 1 think they were on
my right, I am n#t positive about it.. Do you
know whether that exclamation that he ought to
toe killed, proceeded from the group, or some-
body at the front, or somebody at the right or
rear? It was in amongst the crowd there. Did
I understand you to mean in reply to the ques-
ition which was asked upon the cross-examina-
tion, that those men Leggett, Lutterloh and
E. P. Powers .and Tolar, were standing
•off as a distinct party, entirely separate from
the balance of the crowd ? They were stand-
ing about two steps from the main part
<ef the crowd. And all around them was the
main body of the crowd ? Ofi a little; about two
■steps. How many persous were around there
Mr. Jones ? There was some fifty or sixty I sup-
■pose. Do you know whether that exclamation,
that he ought to be killed, arose from the group,
•or whether it arose from those fifty or sixty per-
•sons ? 1 can't say, wherever it came from, it was
«close to me as I passed the crowd.
Questioned by the Commission.
Did you see Mr. Samuel A. Phillips, at the
moment the pistol was fired ? I did not, sir.
The Commission here took a recess of five
minutes, after which
Matthew Morgan was called, who, having
toeen duly sworn, on Saturday the 24th instant,
{testified as follows;
Examined by the Commission.
Were you at-the market house in Fayettevllle,
on the day, and at the time one Archy Beebee, or
Archy Warden was killed ? I was, sir. State on
what day, and at what hour of the day the killing
of Archy Beebee occurred ? It was about lour
o'clock I think, in the afternoon of the eleventh
of February. Did you see William J. Tolar there
that day? Yes,'sir. Did he have any weapon ?
He did, -sir. Describe the weapon that he had?
A pistol. What sort of a pistol ? What I call a
•navy pistol.; I don't know the kind myself.. A
revolving pistol? Yes, sir, as nigh as I could
«ee. How long was it before the killing of Bee-
toee, that you saw Tolar for the first time, with a
pistol; one minute ? More than a minute, I sup-
pose about five or ten minutes. You saw him
with a pistol five minutes before Beebee was
killed ? Yes, sir, I reckon about five." Did yon
see him during the whole time—during those five
minutes? Yes, sir. What was he doing with
the pistol ? What attracted my attention, he had
'it like he was going to shoot, and I watched
him to see whether he did or not. Was
it cocked? If it was I didn't see it. Was
It presented? He had it in his hands so (repre-
sents holding up the pistol with the breech in
his right hand, the muzzle in his left, in front of
him.) Was it presented towards Beebee? In
that direction. Where were you standing at the
time you first saw Tolar with a pistol ? I was
standing at the north side of the arch. The
■north side of what arch ? The main arch, on the
cast side. On the pavement or inside of the mar-
ket house ? On the pavement. Were you stand-
there at the last time you saw hiiu with it ? Yes,
sir. State your position with reference to Tolar,
where was Tolar? He was a little to my left,
sort of in front. In front and to your left?
Not exactly in front, and he was not behind.
How far was he to your front ? I suppose about
three feet, in a straight line. How far to your
left ? Just right on my left side. Could you
have reached him ? No, sir. Was he on the
pavement? Yes, sir. Where was Beebee? Bee-
bee was near about the little arch. Directly in
front of you ? He was not exactly in front of
me, you may say he was in front, because I was
looking right towards him. Was he on the out-
side of the pavement or next to the market
house ? He was about near the middle of the
pavement. And you were standing on the edge,
next to the market house ? Yes, sir. Was he
directly in front of Tolar ? I think he was a lit-
tie more to the right. Was Tolar on the pave-
ment or off? I think, sir, he was on the pave-
ment, I am certain he was, right along the edge,
somewhere. Where was Tolar standing when
you first saw him with ®, pistol ? He was stand-
ing right to my left. Was he standing in the
same place when you last saw him with a pistol?
Yes, sir. Was Tolar standing still all the time you
saw him? He just sort of moved a.little, not giving
backwards or forwards. Moving his body, do you
mean, without moving his feet ? Y es, sir. Did he
move his feet all ? His body was working, that
was all I noticed. Did Tolar fire the pistol he
had ? He did not, sir. At any time while you
were looking at him? No, sir. What did he do
with the pistol when you last saw him ; what was
he doing with it ? He had it in his hand. Was
that before Bebee'was shot ? Yes, sir. Did you
see him with the pistol after Beebee was shot ?
I don't recollect whether 1 did or not; after he
was shot they all crowded up around, and I hadn't
my eyes off of the man. Do you know where the
pistol is now that Tolar had on that day? No,
sir. Have you at any time heard Tolar or either
of the other prisoners now on trial or arrested
for trial, say where the pistol can he found? No,
sir. Did you see Archy Beebee at the time he
was killed 1 Yes, sir, I saw him when be fell.
You saw him at the very moment he fell ? Yes,
sir, I think I saw him at the moment he fell.
Were you looking at him ? 1 was looking at
Tolar till the pistol fired, and then I looked to
Beebee. What attracted your attention to Beebee
after the pistol fired ? I heard the pistol and then
1 heard some of them sqy "be has killed him."
What was his position at the moment he fell with
reference to the market house ? It was sort of
rearing like he was trying to get away. Where
was he ? He was at the corner of the little arch.
Near the south side of ihe little arch ? Yes, sir.
Was there more than one pistol fired at or about
•the time that Archy Beebee was killed ? No, sir,
•only one that I heard. Did you see any other
person beside Tolar with a pistol in that crowd
before Beebee was killed ? No, sir. Did you see
any other person or persons with a pistol or pis-
tols at the time Beebee was killed ? No, sir, not
•until after he was killed ? Did you see any other
pistol on the ground there where Beebee was
killed immediately after the pistol was fired that
day ? I did, sir. In whose hands was that pis-
tol? Mr. Phillips. Where was Phillips at that
time .? He was standing out, sort of going to-
wards his store. How long was that after Beebee
was killed? It was some two or three minutes.
Had he the pistol in his hand ? Yes, sir. Which
hand ? In Ms right hand, I think. What sort of
a pistol was it ? It was one of those large, long
pistols, like they have in the army. The same
sort of a pistol you saw in Tolar's hands ? I don't
think it was. Was it the same size ? If any thing
CONVENED AT RAtEIGH, NORTH CAROLINA-
22a
it might have been a little higger than Tolar's.
When did you first think it was a little higger ?
The reason I thought so was because you showed
n>e one and it was about the same sized pistol.
Wasn't the pistol Tolar had the same sort too ?
I think his looked like it had silver around the
edges. What was Phillips doing with that pistol
when you saw him ? _ He was not doing anything
only he had it in his hand going towards his
store, he didn't go far before he put it- away.
How far was he from you when you saw him put
that pistol up? Not very far. How far? I
could not say exactly. Was he twenty feet ? No,
sir. Was he ten feet? Something like ten feet,
I reckon. Describe his position? I don't think
I could. Why not? Because his face was down
towards the store. His face was. towards the
store? Yes, sir. He was on what street ? Ou
Hay street.
Thomas A. Hendricks, a witness for the de
fence, having been first duly sworn, testified as
follows:
By Counsel for accused :
Mr. Hendricks, where do you reside ? In Fay-
etteville, sir. State of North Carolina? Yes,
sir. How long have you been residing in Fay-
etteville? Ever since the latter part of 1845.
What is your business ? Manufacturer. Were
you in Fayetteville on the day Archy Beebee was
lvilled? Yes, sir. Were you at the market house
onthatdaj'? No, sir. Were you a member of a
coroner's inquest that sat upon the body of Archy
Beebee to ascertain the manner in which he came
to his death. Yes, sir. At what time did it com-
mence? In the afternoon. On the day he was
killed? Yes, sir. Did they make up their ver-
diet on that day ? No, sir, the third day. They
made up their verdict on the third day—you met
in the afternoon you say ? Yes, sir. And when
did you adjourn; when was your first adjourn-
ment ? That evening. To meet when ? To
meet at ten o'clock next day. Did you meet
then ? Yes, sir. How long did you remain in
session ? Until dinner recess. Do you know
what hour ? I think between one and two. To
meet again when ? At three I think? And you
met? " Yes, sir. And when did you make up
your verdict ? We signed it on the third day.
Now I desire sir, to confine your attention to the
second day. The second day, sir, very well. Was
Sam Phillips a member of that coroner's inquest?
Counsel for prosecution : Stop.
Counsel for accused: What we propose to
prove is matter of fact, whether Sam Phillips was
acting, not whether he was sworn, but whether
he was there that day acting as a member of the
coroner's inquest.
Counsel for prosecution: And we say in re-
ply that it makes no difference. There is a record
in existence relating to this matter, and the rule
of law is, that the best evidence must be produc-
ed. The record that exists, of the proceedings of
that jury, is the best evidence, and if the defence
want the evidence, they ought to produce that
paper. They cannot introduce secondary evi-
deuce in the shape of parole testimony so long as
that record, showing the proceedings of the jury
exists.
Counsel for accused: We are not aware of any
principle of law, such as that laid down by Colo-
nel Haywood. We insist that a matter of fact
may be proven as fact; but when a paper is spok-
en of, the rule of law is, that the contents of that
paper cannot be proved except by the introduc-
tion of the paper itself. That is the best evi-
dence of what is in the paper, and the law re-
spects nothing outside of that evidence. There
is nothing clearer than that. The fact that Mr.
Phillips was there that day cannot be produced in
evidence? That there was an inquest that day,
or that he was not there is not admissible ? Sup-
pose he had not been there, I suppose thij wit-
ness may tell he was not there; and if there was
an inquest, or something in the nature of an in-
quest, it is a substantial fact, and no paper is ne-
cessary. To prove that fact, the paper is not the
best evidence—it is not the best evidence of the
fact. Of the contents of that paper it is the best
evidence.
That a deed exists,—as that lauds have- been
sold for instance,—(not that the deed was execu-
ted) can be proved; but the contents of that deed,
the purport of that deed, can only be proved by
the introduction of the deed itself. But in. any
other point of view it strikes me that this testi-
mony is clearly admissible. Mr. Phillips- him-
self has been introduced about this matter ; he
himself has testified about it; we asked him spe-
cific questions about this matter; put him on his
guard that we were going to contradict him about
this matter. We put him on his guard that he
was going to be contradicted. We put to him
certain specific questions which he answered.
The Counsel for the prosecution asked him ques-
tions, and we put him on his guard about these
questions ; and low, we propose by this witness,
to prove that he did not make correct answers to
these questions. In either aspect of the case this
testimony is admissible.
Counsel for prosecution: No amount of soph-
istry can get over this fact—that if Phillips was a
member of that coroner's jury, the records are the
best evidence of the fact,, and according to the rule
of law the best evidence mat be produced. No
secondary evidence will be admitted. I object to
any thing of the sort.
The Commission : The Court will retire to con-
sider the question.
The Commission was then cleared for delibera-
tion, and, after some time so spent, was re-open-
ed ; when
The Judge Advocate stated that the Commis-
sion sustains the objection of the Counsel for the
prosecution.
By Counsel for accused:
Mr. Hendricks, on the day that you have al-
ready spoken of at the store of Samuel A. Phil-
lips in the town of Fayetteville, did you have any
conversation with Samuel A. Phillips in relation
to this matter ? Yes, sir. Well, sir, just give
the Court that conversation.
Counsel for prosecution: I object to it, sir.
Counsel for accused: Do you object to that?
Counsel for prosecution: Yes, sir.
Counsel for accused: Well, sir, let us have the
grounds for your objection.
Counsel for prosecution: The declarations of
Mr Phillips are proposed to be given in evidence ;
in the first place that is what I object to.
Counsel for accused: Can't we impeach him
as a witness ?
Counsel for prosecution: You can't impeach
him in that way.
Counsel for accused: We think we can.
Counsel for prosecution: Very well; I under-
stand, I think, what the gentlemen are aiming
at, and, if the Court pleases, it may be as well to
state our position upon it. Upon the examination
of Mr. Phillips, the cross examination in this
case, if the Court will remember, he was asked if,,
at a certain time mentioned, he had not in a con-
versation with this witness used certain expres-
sions with respect to the proceedings before the
coroner's inquest. I contend that according to
the rules of law, that question, having been ask-
ed by the defence and answered by Phillips,
they are bound by his answer, and ought not
to be permitted now to introduce evidence,
324
PROCEEDINGS OF A MILITARY COMMISSION,
for the purpose of contradicting him. The
rule of law is, that if Counsel has cross-exam-
ined a witness as to a collateral fact which is not
immediately material to the issue, he is bound
by the witness' answer, and cannot raise a col-
lateral issue here by introducing other Evidence to
prove the existence or non-existence of the fact.
Now, mark me,—if, in the cross-examination,
Phillips had been questioned as to whether he
had made different statements with regard to the
main issue, stating time, place and circum-
stance,—or it he had rot made certain particu-
lar statements, giving time, place and circum-
stanee, and he had replied thereto, then evi-
denee might be introduced tor the purpose of
contradicting him. The rule of law is, when,
with regard to a collateral queslion, such as this
one was, an inquiry is mgde of the witness on
cross-examination, the Couusel asking the ques-
tion is bound by his answer, and cannot intro-
duce testimony for the purpose of contradicting
him. The rule is evidently one of convenience;
for, if Phillips could be examined as to a collat-
eral conversation with regard to something else,
to wit: the coroner's inquest, and then evidence
could be introduced to contradict him, of course
Phillips would have to be allowed an opportuni-
ty of rebutting, and there would never be an
end to this thing. Here is what is stated in
Greenleaf, p.. 496, § 499. " In Cross-exami-
nations, however, the rule is notjapplied with
the same strictness as in examinations-int- chief;
but, on the contrary great latitude of interro-
gation is sometimes permitted by the Judge,
in the exercise of his discretion, where, from
the temper and conduct of the witness or
other circumstances, such course $eems essential
to the discovery of the truth, or where the cross-
examiner will undertake to show the relevancy
of the question afterwards by other evidence. On
this head it is difficult to lay down any precise
rule. But it is a well established rule, that a
witness cannot be examined as to any fact which
is collateral and irrelevant to the issue merely for
the purpose of contradicting him by other evi-
dence, if he should deny it, thereby to discredit
his testimony. And, if a question is put to a
witness, which is collateral or irrelevant to the
issue, his answer can not be contradicted by the
party who asked the question, bu,t is conclusive
against him." Now if the Court pleases, the
present case is this—the Counsel for the defense
asked an irrelevant, collateral question of one of
our witnesses,—what was this?—whether he had
not at a certain place, at a certain time, in a con-
versation with Hendricks, stated something in
regard to the Coroner's inquest; whether he
had'nt made a certain statement in regard to the
inquest, and he answered it,—it was a collateral
and irrelevant question, and we insist upon it,
that according to the rule laid down, the Couusel
for the defense can't go on here with evidence of
a collateral character which we in return will have
to rebut by collateral evidence. Here is a case ci-
ted by Greenleaf, (p. 499, § 443, n. 7,) where it is
stated, "thus, if he," (the witness) "is asked
whether he has not said to "A", that a bribe had
been offered to him by the party by whom he was,
called, and he denies having so said, evidence is
not admissible to prove that he did so state to
A." In another case, Greenleaf, (same page,
section and note as last quotation,) states,—
" when a witness was asked, on cross-ex-
amination, and for the sole purpose of affect-
ing his credit, whether he had not made false rep-
resentations of the adverse party's responsibility,
his negative answer was held conclusive against
the party cross examining." The mass of cases
that might be cited on the point is enormous,
and the only nicety is, when is a queslion col'
lateral ? That is the only point. Now the rule
confines relevancy to such question as these—
if any question had been asked Phillips, with
regard to previous statements about this trial,
and he had said he had not made 6uch state-
ments, then evidence could be introduced for
the purpose of contradicting him. If he had
been asked whether he had been bribed, and
he had said "No," evidence could be introduced
to show that he was bribed. But when a collat-
eral question is asked with regard to a con-
versation about a collateral matter, as in the
case we have referred to,—where a man was
asked if he had not stated that "A." had offered
him a bribe, and he said not,—the answer is
final. The rules of evidence are very plain;
the first is, that the testimony must be rele-
vant to the issue. The defence in cross-exami-
nation may ask collateral questions, with the
view of showing that the witness' evidence is not
to be relied upon. But there is a limit even to that;
and when the defence asks an independent, collat-
eral, irrelevant question with regard to something
else, and the response of the witness is given on
that point, it must be final, otherwise there would
be no end to the trial. Of course matters of this
kind are always more or less points in the dis-
cretion of the Court; but it must be apparent to
the Court that what Mr. Phillips said, with re-
gard to the conduct of the coroner's inquest, can
have no bearing on the question whether Tolar
and these persons charged with this crime, com-
mitted it. The Court will rememher the ques-
tion to Mr. Phillips,—the question was, whether
he hadn't at a certain time and place, called up-
on Hendricks, and made a certain statement with
regard to the proceedings before the inquest.
Counsel for accused: If the Court please:—I
always dislike, very much indeed, to have to
make any objection to testimony brought for-
ward on the prosecution in Courts-martial or
Military Commissions; and I always dislike very
much to have these objections made to ques-
tions which I ask.
Counsel for prosecution: If the Court please,—
I Would prefer that the witness should withdraw
for the moment.
Counsel for accused: I have no objection.
Witness theu withdrew.
Counsel for accused continues : As the Coun-
sel has well remarked in his conclusion, these
are matters always more or less addressed to the
discretion of the Court I am rather surprised,
I must say, that such objections as these are be-
ing taken to testimony at this stage of the pro-
ceedings. All that we ask, all that we desire, is,
that this matter may be fairly and impartially in-
vestigated. If these are the guilty men, and if
the proof shall demonstrate it, let them be con-
victed, and let them suffer; but in God's name,
if they be not the guilty men, why shut the door
to the inquiry as to who are the guilty parties ?
There are some questions which appear to be col-
lateral to the issue, but which are not collateral,
and are directly pertinent. I admit the general
rule of evidence, as stated by the Counsel, that
if we shall cull out fairly collateral matter, we
are bound by the answer of the witness, and we
cannot contradict it. But is this collateral ? Why
if the Court will indulge me, just look at the na-
ture of the defence. We come here, and we 6ay
that these men did not kill him, and that another
man did. Is it not pertinent to the issue, to prove
by any means that we can, that Samuel A. Phil /
lips was the party who killed this man ? Most
clearly it is. is it collateral to the issue that we
shall show that Samuel A. Phillips had a pistol
in his hand there that day, and that he diseharg-
Convened At raleigh, north Carolina.
225
eel that pistol towards the head of Beebee, and
then and there killed ancl murdered the man?
Most certainly it is not collateral. What is the
object with regard to the declaration of Phillips?
It is to prove the same fact that we have attemp-
ted to prove by the declaration of witnesses from
that stand. Vfe asked Samuel A. Phillips a ques-
tion as to whether he had not by his manner,
conversation and declarations shown that he had
killed this man Beebee? He says "no." Is that
collateral ? Then it is equally collateral, all the
proof we have brought forward, to show the pis-
tol in Phillips' hand, and to show the pulling of
the trigger by Phillips. Suppose it appears now
that on the day after the killing, Phillips was ner-
vous, that Phillips was uneasy, that Phillips was
trying to suppress testimony, that he was making
appeals to men not to examine testimony if they
were friends of his, does it not tend directly to
the establishment of the defence in this case?
does it not tend directly to prove the fact that
he was concerned in that killing ? that he was
the man that did it ? Why, sir, to my mind it is
perfectly irresistible. One is proof of facts, an-
other of declarations, and if you exclude the dec-
larations, to be consistent, the facts should be
excluded; and the only testimony that could be
offered then, that this Gourt could consider,
would be as to the fact that Capt. Tolar did the
shooting, and that would entirely exclude any
evidence as to whether any other man did"shoot
him. Now, I confess that the distinction is nice
sometimes, and one that a Court may not, in ma-
ny cases, be able to see clearly at once. But it is
a question involving the life or death of these
men, and I hope and believe that the Gourt will
consider this question well and thoroughty be-
fore they sustain the objection raised by the
Judge Advocate. I must beg leave again to call
the attention of the Court to the fact that one of
the manifestations of our ease is that Phillips
killed Beebee, and any evidence that tends to es-
tablish that defence is directly pertinent to the
issue, and is not at all collateral thereto. This is
what we expect to prove by this witness ; while
the matter was fresh, while the affair was under-
going investigation, Phillips by his manner and
by his conversation indicated as clearly as man-
ner and conversation can indicate, that he was
the guilty man, and that he desired to avoid the
inquiry by the suppression of testimony.
The point will be found referred to in the re-
ports of the Supreme Court of this State. The
case is given in " North Carolina reports, vol. 2,
p. 346." The judge who delivered the decision
is one very well known to every member of this
Court, the Hon. William Gaston. In that case,
the general rule, as laid down by Col. Haywood,
the Court admits. I will read all that is said on
that point: (p. 352 N. C. Reports, vol. 2, Iredell,)
" is objected on the part of appellant that the
Court below erred, in rejecting proper evidence,
which was offered in his behalf. The case states
that on the cross examination of Jacob Cluck and
Daniel Cluck, witnesses examined on the part of
the State to prove the first marriage of the de-
fendant they were asked whether the prosecutor
had not paid them for coming to the State as wit-
nesses, to which question they replied that he had
not, and that afterwards the prisoner called a wit-
ness, and proposed to ask him whether the said
Jacob and Daniel Cluck had not told him that
the prosecutor had paid them for coming to this
State as witnesses. This question was objected
to, and the Court sustained the objection. The
case doesn't set forth for.what purpose the ques-
tion was asked, or on what ground it was over-
ruled. If it was a proper question for any legiti-
mate purpose, the refusal of the Court to let it
be proposed was error. It cannot be contended
that" * * * * * * * #
Counsel for prosecution:
Before you get through let me state that per-
haps the defence does not understand my posi-
tion. If Mr. Phillips had been asked "have you
not upon some former occasion, stating time and
place, said that Tolar didn't do this thing, and
Phillips had replied " No,"—then evidence
could have been introduced, to contradict him
because it was pertinent to this issue. The case
of Patterson I remember very well. The witness
was asked whether he hadn't stated that a certain
man had given him money to come from Georgia
here to testify in a certain case of bigamy. The
evidence to contradict the collateral questions in
that case was not allowed. But the point I want
to get at is this, if the question had been put to
him whether he had not made different statements
about the guilt of these parties, and the time and
place named to him, and he had said he had not,
then he could have been contradicted; but when
the question is collateral it is treated differently.
As it is law, I may as well state here, that if Phil-
lips had gone through the streets of Fayetteville,
and declared that he was the party guilty of shoot-
ing Beebee, it could not have been introduced
as evidence, for the purpose of acquitting these
parties.
Counsel for accused : Yes, but it could have
been introduced in order to contradict him, that
is the point. Hear Counsel read from some
book, about impeaching the credit of witnesses.
" It us well settled that the credit of a witness
may be impeached by proof that he has made
representations inconsistent with his present tes-
timony, and whenever these representations res-
pect the subject matter in regard to which he has
been examined, it never has been usual with us
to inquire of the witness, before offering the dis-
paraging testimony whether he has or has not
made such representations." And the Court goes
so far as to say that if a witness had made repre-
sentations or statements inconsistent with those
made on the stand in regard to a transaction, we
were not even able to ask him whether he had
made these statements. Now with respect to the
collateral matters, we'll read on: " Of late, how
ever, it is understood that this rule dbes not ap-
ply in all it s vigor, when the cross examination is
as to matters which, although collateral, tend to
show the temper,- disposition, or conduct of the
witness in relation to the cause or the parties.
His answers are not to be deemed conclusive,
and may be contradicted by the interogator . .
"We put Phillips on his guard
about the matter—we as much as intimated to
him that we were going to contradict him about
it; we put him fully on his guard, and therefore
we have the right to show that he made represen-
tations here—that he made statements here—in-
consistent with statements and representations
which he made elsewhere; and about these repre-
sentations and statements, we particularly and
pointedly put questions, so that he might not be
taken unawares by the evidence of the witnesses
we were going to call in regard to that matter.
Here in the case of Patterson, what Colonel Hajr-
wood says is correct, in part. These witnesses
were asked whether they hadn't been paid to
come there, and they stated they had not . . .
Counsel for the prosecution: Whether they
had not stated they had been paid.
Counsel for accused: No, sir, that is not the
point: I will read the given case again:
" The case states that on the cross examination
of Jacob Cluck and Daniel Cluck, witnesses ex-
amined on the part of the State to prove 1be first
marriage of the defendant, they were asked whetk*
226
PROCEEDINGS OF A MILITARY COMMISSION,
er the prosecutor had not paid them for coming
to this State as witnesses; to which question
they replied that he had not."
Counsel for prosecution: Although the analo-
gy is not strong, still there is a vast difference in
the Courts of the different States.
Counsel for accused: It appears to me won-
derful that it should be desired to strain the evi-
dence as against men who are put upon trial for
their lives. It is admitted now by the Counsel
for the prosecution that the modern practice as
laid down by Judge Gaston is against him.
Counsel for prosecution: I have admitted no
such thing—I have never said so—and I object
on the part ol the government, to the state-
ment that auything is being strained by the
prosecution. Nothing has been strained—the
prosecution has been conducted with the
greatest leniency, and I am sure the defence has no
reason to complain. Any such assertions as these
I think it my duty to contradict promptly and
emphatically. Nothing is strained. I lay down
what I conceive to be the law, and'in the best in-
terests ot justice, that a collateral, irrelevant
question was asked in the gross examination of a
witness and that the interrogator must be bound
by the answer; and the rules of evidence are in
no respect controlled or strained by the fact that
men are on trial for their lives. * * * But
as to my admitting that the law is now such as the
Council states, the gentleman is totally and en-
tirely mistaken; he misapprehended my state-
nient •. it was in an undertone, and not fully sta-
ted at all.
Counsel for accused: If I have misunderstood,
I am willing to be corrected. We insist, how-
ever, that the rule is plain. Any other con-
struction of the rule would put it out of the
power of these men, who are on trial for their
lives, to show what we regard as exceedingly
material for the defence to lay down. This is
the law as laid down by one of the greatest law-
yers in the land;—one described by Mr. Webster
as the greatest lawyer in the Congress of 1812,
and one of the greatest judges in this or any
other State.
Counsel for prosecution: Well, I object Btill;
it now lies with the Court.
The Commission: We will retire to consider it.
The Commission was then cleared for deliber-
ation, and after some time so spent, was re-open-
ed, when
The Judge Advocate stated that the objection
of the Counsel for the prosecution was sustained
by the Commission.
The witness was now recalled and resumed
his position upon the stand.
JudgeAdvocate: 4 Twill state in presence of the
witness that the objection to the question has
been sustained."
Counsel for accused: I understand, may it
please the Court, that the record is made up un-
der the direction of the Court, and I would like
to put the question in such a shape upon the re-
cord that it cannot be misunderstood. The ques-
tion we desire to have inserted in the record is
this : "In that conversation did or did not Sam-
uel A. Phillips say to you, ' Mr. Hendricks, if
you are a friend of mine, you will not examine
the witnesses closely,' or words to that effect."
Counsel for prosecution: I object. If the wit-
ness were about to answer the question, it should
certainly not be offered in such shape as to sug-
gest the exact words of the answer. I think the
question is an improper! one. It seems to me
that a question might be framed, of not so
leading a character as for instance, ask the
witness if he did not at the time and place
and under the circumstances, mentioned in
Phillips examination, have a conversation with
him, the subject matter being this coroner's in-
quest. If he says "yes" then the question might
be put, "what was that conversation ?" we would
object to it even then, however, and do object to
it in its present form.
Counsel for accused : The Court will perceive
that all we desire is to get upon the record, the
fact that we asked this witness a question to con-
tradict a question that was asked of Phillips, and
by him, (Phillips,) answered " nay." That this
question was objected to, and ruled out by the
Court. "VVe wish to get upon the record, the fact
that a question was ruled out, which would con-
tradict a statement about which we had put Phil-
lips on his guard.
Counsel tor prosecution: I object again, so
long as it has what he is expected to answer right
On the face of it.
Counsel for accused: I think that the record
should show that the question is more closely
confined than as to a general conversation, or the
substance of a general conversation, and to be
directly in answer to a question which was asked
Phillips, and by Phillips answered in the nega-
tive. I think that the reviewing officer should
be able to see at a glance, the question that the
defense wished to introduce, and the objection
that was offered to it by the prosecution. The
question was: " In that conversation did or did
not Samuel A. Phillips say to you, ' Mr. Hen-
dricks if you are a friend of mine you will not
examine the witness closely,' or words to that
effect."
Counsel for prosecution: We object to the
question as being a leading question.
Judge Advocate: We object not merely to its
being answered, but we object to the question as
being a leading question, and an improper one.
Counsel for accused: Very well, sir, that is all
we wished to say.
At 1.35, p. m., on motion, the Commission ad-
journed to meet on 27th, at 10 a. m.
Raleigh, N. C^Aug. 27,1867,10 A. M.
The Commission met pusruant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused, and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and
approved.
Washington Faikcloth, a witness for the de-
fence having been first duly sworn, testified as
follows:
Examined by the Counsel for the accused.
What is your name? Washington Faircloth.
What is your age ? Going on eighteen years old.
Where do you live ? I live in Fayetteville. Fay-
etteville, N. C. ? Yes, sir. How long have you
been living there? All my life. Were you in
Fayetteville on the day ArchyBeebee was killed?
Yes, sir. Were you at the market house on that
day ? Yes, sir. At what time of the day did you
go to the market house ? About three o'clock I
think. Was that before Beebee was carried up-
stairs ? Yes, sir. Did you see him carried up-
stairs ? Yes, sir. You saw him as he was carried
up-stairs? Yes, sir. Where were you at that
time ? Out of the market house standing right
under the edge of the market house, which
edge? By Becky Ben's stall. How long
did you remain there ? I remained there
about five minutes. .Where did you go from
there? I went to Mr. Moore's store. Where is
Mr. Moore's store? About four doors from the
market. How long did you remain there at Mr.
CONVENED AT RALEIGH, NORTH CAROLINA.
22?
Moore's store ? Five minutes. Did you then re-
turn to the market house? Yes, sir. Where
did you take your position, when you returned
to the market house? At different places about
the market house. Did you leave the market
house any more until Beebee was brought down
stairs ? No, sir. Did you see Miss Massey and
her mother go up stairs ? Yes, sir. Did you see
them come down stairs ? Yes, sir. Where were
you standing at the time Miss Massey and her
daughter came down stairs ? I was standing
right at the edge of the market house. At which
edge of the market house ? The south edge. At
which do you mean, the south edge ? I mean
where BSebee come down there. Get the places
in your mind; towards the river from the market
house is east; down towards the guard house is
south; now which side were you standing on ?
The eastern side. Then you were standing on
the eastern side of the market house ? Yes, sir.
Were you on the pavement, or off, or under the
market house ? I was just about the edge of it,
and as she came down I walked to the edge of
the pavement. Where did the ladies go when
they came down ? They went right down front st
Did they walk down ? They rode down. Where
was the carriage standing? Right in front of the
market, about twenty feet from the pavement I
reckon. Did you see them go out to thecarriage ?
Yes, sir. Who went out with them ? Mr. Bond j I
don't recollect any person else. How long did
the carriage remain there, after Mr. Bond and the
ladies went out? About five or ten minutes I
reckon. Who did you see go to the carriage du-
riug the time it was standing there ? I didn't
notice any more who went there. Was there any
other person that you remember as being at the
carriage at all except Mr. Bond ? I don't think
there was, I didn't notice particularly; 1 just no-
ticed Miss Massey go to the carriage. How long
was it after the carriage drove off before Beebee
was brought downstairs? Just as the carriage
turned to drive off he was coming down stairs.
Now, where were you standing at the time Bee-
bee made his appearance upon the landing of the
stairs, coming down the steps ? On the edge of
the pavement. On which edge? The eastern
edge. Opposite what arch, if any, of the market
house ? I was not opposite any arch; I was op-
posite the wall. Could you see Beebee? Yes,
6ir. When he was on the stair steps ? Yes, sir.
Which arch did you look through to see him ? I
looked through the one near the corner. The
small arch on ths eastern face down towards the
south Gillespie street? Yes, sir. Did you 6ee
Beebee when he got upon the landing of the
stairs? No, sir, I didn't see him when he step-
ped off the steps. I mean when he first came
down and turned the corner coming down the
steps, at that door at the market house, did you
see him there? Yes, sir, just as he was coming
out of the door. Who were with him at that
time ? Faircloth and Wemyss and Sheriff Har-
die. Who is Faircloth ? My father. Did
you notice anything unusual in the crowd
at that time? No, sir. Did you see Bee-,
bee from the time he reached tlae landing!
until he got down to the foot of the stairs?:
No. You didn't see him when he reached the!
foot of the stairs ? No sir. Did you see him be-
tween the foot of the stairs and the eastern arch,
as he turned out upon the pavement ? No, sir, I
didn't see him any more until he turned the cor-
ner. So you saw him upon the landing as he
come down stairs, but you didn't see him after
be had reached the foot of the stairs, and didn't"
see him any more until after they had turned out
of the arch to go to the guard house ? No, sir.
Now at the time they turned to go to the guard
house when you caught sight of them again,
where were you ? Standing on the edge of the
pavement. Where were you then with reference
to the main eastern arch, were you opposite it
towards the south, or towards the north of it, or
where ? I was right in front of it. And that was
when Beebee turned down to go to the guard
house ? Yes, sir. Were you on the pavement or
off? On the edge of the pavement. Well sir,
what occurred at that place? Well, I seen the
crowd rush at Beebee—I don't know who they
were, and he went on about three foot further, and
made some terrible efforts to get loose, and some
body said "shoot the damned son of a bitch,"
and I seen Mr. Phillips draw out a pistol, and he
cocked it as he brought it up and he held it so,
(witness represents Phillips with a pistol present-
ed, wavering in his hand,) and he sort of steadied
it, and then I turned my head, and I seen John
Armstrong about ten feet in front of me, towards
Davis' tin shop: and he fired it, and the smoke
was all in my face and his face, then I walked
around and saw Monk Julia trying to get at him
to cut him with a knife, and he was prevented by
Mr. Nixon. He went down the pavement some
distance, and you say he made struggles as if to
get loose? "Yes, sir. And directly after he fell
and went down, and as he raised up, the pistol
fired? Yes, sir. Now at the time he was fired
upon, where was he ? He was right even with the
corner of the market, about a foot and a half of
being even with it. Was he nearer the market
house, nearer the center of the pavement, or
nearer the edge? Nearer the edge I reckon, he
was about three feet on the pavement. Now Mr.
Faircloth, just at that time when Beebee had rais-
ed straight and when the pistol shot was fired,
where were you standing ? On the edge of the
pavement. At what plaee ? Right in front of the
wall that separates the two arches; the little one
and the big one. You say that you saw Sam
Phillips ? Yes, sir. And that he had a pistol ?
I seen him when he drew his pistol. How far
were you off from Phillips ? I was about two
^oot. Could you have touched him ? Yes, sir.
'Wtere you to Phillips' right or to his left? To
his left. You were to Phillips'left ? Yes, sir.
Were you directly to his left or to his left and
rear, or to his left and front ? To his left and
rear. Was he on the pavement or off the pave-
ment? He was on the pavement. Was he near-
er the wall of the market, or nearer the center of
the pavement, or nearer the outer edge of the
pavement. Nearer the outer edge of the pave-
ment; about three feet on the pavement. You
say you saw him draw a pistol ? Yes, sir. Where
did he draw it from ? From his left side. Did
he coek it? He eocked it as he brought it up.
And you saw him present it at Beebee ? I saw
him doing so, and he sort of steadied it, and I
turned my head. So you saw him draw it from
his left side, cock it as he drew it up, and saw
him move it about so (representing); you saw
him present it at Archy Beebee? 1 reckon
he presented it at Archy Beebee. Was it in
that direction ? Yes, sir. That then you turn-
ed your head and looked off? Yes, sir. And at
that instant the pistol fired? Yes, sir. That
you heard the report ? Yes, sir. That you saw •
the smoke; now where did that smoke, arise
from? From about where Phillips was stand-
ing, it went in my faee and his face. Just at the
point where Phillips was standing? Yes, sir.
And the report, where did that sound from ? It
was a little to my right. To where Phillips was
standing and there was the sound of the report,
and there you saw the smoke of the pistol ? Yes,
sir. Right there? Yes, sir. Well, sir, what oc-
curred alter that time, did you see what Phillips
PROCEEDINGS OP A MILITARY COMMISSION,
did the with the pistol ? He put it in his breast
coat pocket, or in his vest, I don't know which.
And returned it ? Yes, sir. Which side did he
return it to? To his left side. What became of
you then, Mr. Faircloth? I went around to see
if Beebee was hit, and I saw Monk Julia there
trying to cut him with a knife, prevented by Mr.
Nixon. Did you see any more of Phillips ? No,
"sir, I don't recollect seeing him. Had you seen
Capt. Tolar that day ? Yes, sir. Where had you
first seen him? At the market. What part of
the market ? He was standing about three feet
from the market. Inside or outside ? Outside.
When you first saw him? Yes, sir. On the
pavement or off the pavement ? On the pave-
ment. On the eastern side or on the western
side, or southern or northern side ? The eastern
side. How long was that before Beebee was
shot, that you saw him there ? As Beebee was
coming through the market from the stair steps.
Did you see him any more after that? Yes, sir,
I seen him standing there against the market.
Did you see anything of Tom Powers there ?
Not that I recollect. Did you see anything of
Ralph Lutterloh there? No, sir, I didn't see
him. You don't remember to have seen him?
No, sir. Do you remember to have seen Ed.
Powers? No, sir, 1 don't remember to have seen
him. Do you remember to have seen Mr. Leg-
gett? No, sir. Or Sam Hali ? No, sir. And
your attention was directed to Phillips from
the fact that you saw him draw a pistol and
cock the pistol? Yes, sir. Do you know Phil-
lips well ? I know him well. How long have
you known him? I have known him ever
since I was big enough to know any body. Mr.
Haircloth, have you any doubt about that mat-
ter? No sir. Have you no doubt about seeing
Sam. -Phillips draw that pistol and cock'it? I
am as certain I seen him do it, as I am sitting in
this chair. And you say that all you have sworn
to here to-day is the truth and nothing but the
truth ? Yes, sir. And about the matter you have
sworn to there is no room for mistake ? I don't
understand you. Is there any room for your
being- mistaken about the facts you have sworn
to here to-day ? No, sir. How long did you re-
main there after the shooting ? I remained there
.half an hour, I reckon. After the shooting? Yes,
sir. Well, now, before the shooting did you hear
any exclamations in the crowd, "kill him,"
"shoot him," oran3Tthing of that kind? Only
I heard them, as he was making these efforts to
get loose, I heard some body say, " shoot the
damned son of a biicli." Do you know who that
was ? No, sir. After the shooting occurred, did
you, while you were there, at any time hear any
body say who had shot him ? I heard John Arm-
strong running around and say Capt. Tolar shot
him. How long was that after the shooting oc-
curred ? About ten or fifteen minutes. Where
did I understand you to say John Armstrong was
at the time the shooting occurred ? About ten
feet in front of me, towards Davis's store. Im-
mediately to your front, or to your front and
right, or front and left? In front of me, as I
turned my head. About ten feet in front of you
towards Davis' tin shop, at that time you saw
John Armstrong? Yes, sir. Do you know him
well ? Yes, Jsir. There |is 'no doubt that he
was there? Yes, sir. He was the man that at-
tracted your attention away from Phillips at the
time Phillips was firing ? He was the only man
I recollect seeing that I know. How came you
to notice John Armstrong at that time ? I knew
him, and he was the only man I seen that way I
knew, when I turned my head. How long had
you known John Armstrong ? I had known him
three or four years. How did you come to turn
your head in that' direction ? Because Phillips
drew the pistol; I always turn my head when
any body shoots, and I turned my head then.
When Phillips drew the pistol, fearing there was
going to be shooting, you turned your head off
from it? Yes, sir. And when you turned your
head off, you saw Armstrong there, and noticed
him because he was the only acquaintance of yours
that was in the direction you were looking; do
you know anything else about this matter, sir?
No, sir. Are you related to Capt. Tolar? No,
sir. To Tom. Powers? No, sir. To David
Watkins? No, sir. To Ed. Powers? No, sir.
To Ralph Lutterloh ? No, sir. To Sam. Hall ?
No, sir. To John Maultsby? No, sir.#To J.
G. Leggett ? No, sir. Are you related to any of
the witnesses that you know, who have been
summoned, or who have been brought here?
Not that I know of. Have you ever told this
matter to any one before coming up to Raleigh ?
Yes, sir. To whom did you tell it? James Me-
Rae in Fayetteville. When did you tell it to
him ? About two weeks ago. Under what cir-
cumstances did you tell it to Mr. McRae ; did
you go to him ? No, sir, he came to me and
asked me what I knew about it. And that was
the first time you had ever told it? Yes, sir.
Why didn't you ever tell before that time? No-
body never asked me. And you had never told
it to any body before that time ? No, sir. And
you told James McRae because he came to you
and asked you ? Yes, sir.. Did you know up to
that time whether Mr. McRae was with the de-
fence in this case ? No, sir. Was that before the ,
time or after the time that you understood, if
you heard it at all, that Sam Phillips had turned ,
State's evidence ? It was about the time.
Cross examination by the Counsel for the prose-
cution:
How long was it before you were summoned
to attend as a Witness here that you informed
Mr. James McRae of what the substance of your
testimony would be ? About two weeks. Before
you were summoned? Yes, sir. I thought you
said it was about two weeks before this day in
your examination in chief; I understood you to
say, when the Counsel lor the defence was ex-
amining you, that it was about two weeks ago
that you made this statement to Mr. McRae?
Yes, sir, it was about two weeks. Now, I under-
stand you to say to me, it was two weeks from
the time you were summoned, which do you
mean ? I mean from the time I said at first.
How many days since you were summoned ? I
was summoned Saturday. And you think it is
not more than two weeks ago that you spoke of
this matter first to Mr. McRae ? No, sir. Had
you heard at the time you made this eommuni-
cation to Mr. McRae that Sam. Phillips had turn-
ed State's evidence? I think I did. Don't you
know you did ? No, sir, I am not certain whether
1 did or not. You don't know which happened
first, your communication to McRae or your
hearing that Sam. Phillips had turned State's
evidence ? I think I heard he had turned State's
evidence before. Don't you know you heard it
first? I would not swear I did. Your best im-
pression is, you did hear Sam.'Phillips turned
State's evidence first ? Yes, sir. You nevertold
this matter before you told it to McRae ? No, sir.
Did you go to him, or did be come to you ? He
come to me. Where were you ? I was up town,
about Mr. Lutterloh's store. Do you keep store
there ? No, sir. Which Lutterloh ? Thomas
Lutterloh. The father of the young man under
arrest ? Yes, sir. Have you any occupation in
Fayetteville ? No, sir, I light gas lights for my
father sometimes; he is Captain of the police.
You have no regular occupation ? No, sir. It
CONVENED AT RALEIGH, NORTH CAROLINA.
229
was at Lutterloh's store that McRae first ap-
proached you about this matter ? About there,
not right at his store. How far from it ? It may
have been twenty-five or thirty yards from his
store, I was about the corner there somewhere.
Had you been to Lutterloh's store that morning?
Yes, sir. Was it in the morning or afternoon ?
It was in the afternoon. Had you been at Lut-
terloli's store that day ? I had been about there.
Had you "been in the store? Not that I know of.
Had you been lounging about there all day. Yes,
sir, I live not far irom his store. Had you had
any conversation with Thomas Lutterloh about
this business ? No, sir. You didn't speak a
word about it? No, sir. No body told you Mr.
McRae was going and see you ? No, sir. No
body told you to tell McRae what you knew about
it? No, sir. Your father didn't tell you ? No,sir,
he didn't know I knew it, I reckon. You never
told him nor your mother, nor any member of the
family? No, sir. Until you met this man McRae?
No, sir. That was after Sam Phillips had turned
State's evidence? Yes, sir. You thought it was
a very shabby proceeding op his part, didn't you ?
I don't know nothing about it. Haven't you any
opinion about it? Not much. Give us what
you have? I think it was a shabby trick. You
have heard a good deal of that sort, haven't you ?
No, sir. Haven't you heard it. said, at all? I
have heard it said, but I haven't heard it said by
a good many. You have heard it said ' by a very
few? Yes, sir. Did you ever hear your father
say so.? No, sir, I hardly ever see my lather in
the day time. You may have heard him say it
at night ? I never heard him at night. You say
you are almost eighteen years old ? About eigh-
teen. You were in Fayetteville the day this
thing t<*ok place ? Yes, sir. You went to the
market house about three o'clock ? Yes, sir, or
may be a little later later or earlier. When you
got there Archy was there, was he ? No, sir.
Where was he? Ho was at the guard house.
Did you stay there until Archy was brought up
from the guard house ? I went to Mr. Moore's
store, and 11 few minutes after I got back, I saw
him come from the guard house. What does
Mr. Moore keep for sale ? He keeps whisky and
tobacco, he did then. Did you go to take some ?
No, sih You didn't take a drink that day? No,
sir, and no other day. You never take anything ?
Not now, I used to take a little. What did you
go to Mr. Moore's store for? I went down there
to sit down and rest. You came back, and when
you got back Archy Beebee was brought from
the guard house. They were bringing him
from the guard house, a few minutes after I got
back. Where did you go when you got back?
I went under the edge of the market. And stood
by Becky Ben's stall ? Yes, sir. And you saw
Archy as he came to the market house ? Yes,
sir. Where were you standing ? He had got to
the market house when I went under the market
house. Then you saw him from the pavement,
and after you had got in the market house, he
passed in and went up stairs? Yes, sir. Who
was with him ? Faircloth, Wemyss and Hardie.
Any one else ? I think Hornrinde was there; I
don't know whether he went up stairs or not.
Did you see any one else along with him that
did not go up stairs ? I seen Mr. Massey there,
but I don't think they let him go up stairs. I
mean any one in charge of the prisoner? I seen
Mr. Bond. Then you saw Faircioth, Wemyss,
Hardie, Bond, and may be Hornrinde ? I think
Hornrinde was there. Did they all go up stairs?
I don't think they did. Which ones went up ?
Mr. Wemyss went up stairs, I think, and Mr.
Hardie, and Faircloth stopped at the door.
Didn't Bond go up stairs ? I don't know whelk- j
er he went up stairs or not. After Archy had
got up stairs, did you see the ladies come ? They
came before Archy I think. Are you certain
about that ? I am not certain about wbich went
up first, I don't know exactly, I think they went
up first though. You think the ladies had gone
up stairs before Archy came? Yes, sir. Did you
see the carriage when it came with them in it?
No, sir. Y"ou didn't see that? No, sir. Did you
see them get out of the carriage ? No, sir, I did
not. Did you see them on the pavement, com-
ing towards the market house ? * No, sir, 1 seen
thein go up stairs, I didn't notice for the car-
riage. Did you see them on the pavement com-
ing from the carriage ? I seen them on the pave-
ment, I don't know whether they were coming
from the carriage or not. That was the first you
saw of them? Yes, sir. You saw them pass
through the market house, and go up stairs ?
Yes, sir. You don't know whether that was be-
fore or after Archy went up ? I can't say for cer-
tain. Was it about the same-'time? About the
same time. Try and recollect whether it was be-
fore or after. I think it was a little before. Did
you stand by Becky Ben's stall when the ladies
were going up stairs ? Yes, sir. Until Archy had
got up stairs? No, sir, I didn't stand there un-
til he got up stairs, I stood there until he got to
the foot of the stair steps. You were standing
at Becky Ben's stall when the ladies went up ?
Yes, sir. You remember that with certainty ?
Yes, sir. And j'ou left Becky Ben's stall when
Archy went up ? Yes, sir. When you left Becky
Ben's stall where did you go ? I sat down there
by Mr. Mitchell's stall. Where is Mr. Mitchell's
stall? About the center of the market house.
Which side, the north or south side ? The north
side. On the side opposite to Becky Ben's ?
Yes, sir. You sat down there for a while ? Yes,
sir. How long did you stay there ? Half an
hour I reckon. Where did you go when
you lelt that point? I went to the edge of
the pavement.. Which arch did you go out
of the market house ? The eastern arch. While
you were sitting at Mr.Mifchell's stall, about tbat
half an hour, did you see any body in the crowd
that you knew ? The crowd was not about Mr.
Mitchell's stall. Couldn'tyou see the crowd from
Mitchell's*stall? I didn't notice. What were
you noticing ? I was not noticing anything in
particular. There was no crowd in the market
house, was there? There was a crowd on the
edge of the pavement, and under the edge of the
market house. Under the eastern edge of the
market house? , Yes, sir. Couldn't you see
them ? I could have seen them if I had looked.
Didn't you pass through them to go to the point
where you were sitting, at Mr. Mitchell's stall?
Yes, sir. Were you not pretty close to them
then? Yes, sir. Didn't you see anybody in that
crowd that you knew ? I didn'tleolt to see. Did
you shut your eyes ? No, sir, I didn't look up
in their faces. You can't say a soul that was in
it at that time ? No, sir. You swear it? No,
sir, I would not swear there was no body there I
did not know. You swear you can't name a per-
son in that crowd, at that time? Becky Ben was
in the crowd. But you did not see her out in the
crowd, she was standing in her stall? Yes, sir.
Who else was in the crowd—I am speaking of
men ? I didn't know any men, that I saw in the
crowd at that time. You swear to the best of
your recollection, you can't recollect a single
man who was near you in that crowd ? Yes, sir.
When you left Mitchell's stall, you went through
the crowd ? Yes, sir. I went to the edge of the
pavement. Didn't you see anybody, as you passed
there, that you recognized? Yes, sir. I seen
Joe. Conner, and Alex. Faircloth, and several
230 PROCEEDINGS OP A
others. Let's have the several others ? I seen
Mr. Samuel Phillips. That was the first time you
saw him that day ? Yes, sir. Did you see him
have a pistol then? No, sir. Where was he
standing then ? About the front of the big arch,
about the middle cf the pavement. Opposite the
centre of it ? About the middle of it. Well, sir,
who else did you see besides Mr. Phillips—did
you see Capt. Tolar ? Not at that time, sir. Did
you see Tom Powers? Not that I recollect
of. Do you know him? Yes, sir. Did you
see him under the market house at all, during
the time we have been speaking of, the half
hour you were sitting at Mitchell's stall, and
the time you were standing at Becky Ben's
stall? No, sir. Did you see Monk Julia? Yes,
sir. You didn't see Cap'tainTolar at that time?
No, sir. Not while you were standing at Becky
Ben's stall, nor while you were sitting at Mitch-
ell's stall, nor while you were passing through
the crowd ? No, sir^ Did you ijee E. P. Powers ?
No, sir. You know liim? Yes, sir. Did you see
J. G. Leggett? No, sir. Do you know him?
Yes, sir. Do you know Lutterloh? Yes, sir.
Know them well when you see them ? Yes, sir.
Did you see John Maultsby? Yes, 6ir, I seen
him. Where was he ? He was standing under
the market house. That is a big place, can't you
tell me a little nearer than that ? 1 can't tell
you exactly. Was he in the crowd, or out of
it? He was talking to some, I don't know who
they were. They were strangers to you I sup-
pose? I didn't look to see whether they were
strangers or not, I passed on. You saw Maults-
by? Yes, sir. You didn't look at the other men
to see whether they were strangers or not? No,
sir. Did you see Henry Sykes ? I don't think I
did. Did you see Sam Hall ? No, sir. You saw
Sam Phillips though ? Y es, sir. How camo you
to see him? I don't know, sir, I seen him like
I come to see John Maultsby, 1 reckon. How
was it you missed seeing so many others ? I
seen others at that time, but I knew them
well. Didn't you know Gaptain Tola'* well?
I didn't see him at that time. Did you know
liim well? Yes, sir. Do you know Thomas
Powers well ? I know him when I see him.
Do you know him as well as tou know
Maultsby? No, sir. Do you know him as well
as you do Sam Phillips ? No, sir. Did you know
Ed. Powers well? Yes, sir. Do you know him
as well as you do Maultsby ? Yes, sir. Do you
know Leggett well ? I know him when I see
him,? Do you know Lutterloh well ? Yes, sir.
As well as vou do Maultsby and Sam Phillips ?
Yes, sir. You saw none of them ? Not at that
time. The only ones was you can speak of hav-
ing seen are the two you first named; who were
they? Joe Conner and Alex. Faircloth. And
Maultsby and Sam Phillips? Yes, sir. Were
Maultsby and Sam Phillips standing together ?
No, sir. They were standing apart. Yes, sir.
You saw where Sam Phiilips was, now why can't
you tell me where Maultsby was ? He was under
the market house somewhere, about some of
them stalls. About which stall ? I don't know
whose stall; there where old Mr. Leonard used to
have his office. The east end of the market
house? About the middle. How much of a
crowd was there when you passed out of the mar-
ket house, to go to the edge of the pavement ?
About a hundred, I reckon. Inside and out ?
Yes, sir. Were they all about the eastern end of
the market ? Yes, sir. Was a greater part of
the crowd inside of the market or outside ? A
greater part about the stair steps I think. Any
of them inside of Becky Ben's stall? Yes, sir.
About the stair steps ? Yes, sir. How many do
you tkittk were inside of the market house every
'ARY COMMISSION,
where? About twenty five, I reckon. How
many of these were inside of Becky Ben's stall ?
Nearly all of them were inside of the stall, by the
stair steps—the stall is right at the stair steps.
You fsay nearly all of them were inside of that
stall ? They were there behind the stair steps,
they were not in the stall. You said they were
inside of the stall. They were around in behind
the stall. Aint that inside of the stall? Yes, sir,
I suppose so. Nearly all of them were between
her stall and the stair steps, behind the stall?
Yes, sir. Then there were very few or none
standing in the aisle, that you had passed through?
Yes, sir. How many were standing in the aisle
that you passed through? I don't know, sir,
there was right smart there. As many as there
were behind the stall? I suppose there were. I
thought you said the greater portion of those un-
der the market were behind the stall ? They
were. Now you say there were as many outside
of the stall, standing in the aisle ? I mean out-
side standing right there by the arch, I don't
mean under the market house. What I am talk-
ing about, is the persons under the market house
and who were not inside of Becky Ben's stall,
were there any such persons? I don't under-
stand you. I will volunteer that there Is not
another person in the sound of my voice, that
don't, you have just said the crowd consisted of
persons who were outside of the market house,
and of persons who were inside under the mar-
ket house, didn't you? Yes, sir. You have
told me that, of the persons who were under
the market house, the major, or greater portion
were behind or within Becky Ben's stall, and
around the foot of the steps ? Yes, sir. Now I
ask you, of the persons who were under the mar-
ket house, how many outside Becky Ben's stall,
standing about the aisle, at the eastern end of the
market house, under the cover of the roof. A-
bout fifteen or twenty, I reckon. Did you notice
anybody who was inside of Becky Ben's stall, so
you can name who they were? No, sir. Did
you notice any one of the fifteen or twenty, who
were standing in the aisle, as you passed through,
so that you can name who they were ? No, sir.
You did notice Sam. Phillips outside? Yes, sir.
Did you see Capt. Tolar in the crowd of fifteen or
twenty tn the aisle ? No, sir. Did you see E. P.
Powers? No, sir. Did you see Lutterloh? No
sir. Did you see Leggett? No, sir. Now sir,
how long was it, after you passed out through the
market house, and went to the edge of the pave-
ment, before Miss Massey and her mother came
down stairs ? It was about ten minutes I reckon.
You had gone outside of the market house then
before they came down? Yes, sir. Didn't you
swear, upon your examination-in-chief, that when
the ladies came down stairs you then walked to
the edge of the pavement, along with them ? I
said I was standing at the edge of the pavement
as they went to the carriage. You say now you
didn't swear in your examination-in-chief that
you moved to the edge of the pavement when
these ladies came down ? No, sir. You say now
you were standing there before ? No, sir. I did
not. Did not what ? Didn't say I was standing
near there before they came down. Haven't you
told me you were standing at the edge of the
pavement, ten minutes before the ladies came
down stairs ? I don't think I did, if I did I made
? mistake.' I asked you after you moved from
he market house, and went to the edge of the
pavement, how long you had been standing there
before the ladies came down stairs, and you said
about ten minutes, Is that so or not? It ain't
so, sir. How long had you been standing at the
edge of the pavement before the ladies came
down? I hadn't been standing there any. Then
CONVENED AT RALEIGH, NORTH CAROLINA.
231
you were under the market house when the ladies
came down stairs, were you? Yes, sir. Where
were you ? About Mitchell's stall. You stood
at Mitchell's stall then until the ladies came
down, you swear now? Until they came to the
foot of the steps. And you then left Mitchell's
stall, and passed through the crowd, and went to
the edge of the pavement ? Yes, sir. You went
out to the edge of the pavement at the same time
the ladies went to the carriage ? I was a little
behind them. Could you see the carriage? Yes,
sir. Were you looking at it ? I was looking at
it at the time they went to it. Did you look
right straight away from it afterwards ? I didn't
look right straight away, I turned my Jiead, and
I was looking in no way in particular. Which
way was your face turned when you were looking
at t he carriage ? Turned east. Which way was
your face turned when you looked away from the
carriage? Turned south. You were looking
then down towards the guard house? Yes, sir.
With your right towards the market house, and
your left to the carriage ? Yes, sir. What part
of the edge of the pavement were you standing
on, opposite what part of the market house?
Front of the wall that separates the two arches.
Which arches ? The little one and the big one.
There are two little arches, which little one ? The
south-east corner. You were standing opposite
the wall, then, between the big arch and the lit-
tie arch, the little arch nearest south? Yes, sir.
And looking south? Yes, sir. Did you stand
there until Archy Beebee came down stairs?
Yes, sir. Were you standing there when you
saw Archy first ? I was standing there when I
seen him come out of the door up stairs. Now,
sir, when these ladies went to the carriage you
were standing in the same position that you re-
mained in until f Archy came down, or came out
of the door on the stairs? Yes, sir. Did you
see nobody go to the carriage besides Bond?
I didn't notice it. I didn't ask you whether you
noticed it, I asked you if you saw it ? I seen
some, but I didn't know who they were. You
can't swear who any of them were ? No, sir, none
but Mr. Bond. Some did go up to the carriage ?
Yes, sir. Did several go there ? I don't know
whether there were several or not; I should say
there were as many as four went. You can't say
who they were, although you can tell the num-
ber? There may have been five, I would not
say for certain how many there were. There
were four, or five or sis, along there somewhere.
Yes, sir. Your best estimate is about four, but
you can't tell any of them except Bond ? No,
sir. After you were outside of the market house,
and got your station there, on the edge of the
pavement, while the carriage was standing, and
just before Beebee hove in sight on these stairs,
Mid you see Sam Phillips ? He came there while
I was standing there. He came where ? About
two foot trom me. About two feet in front of
you? Yes, sir. That was before Archy appear-
ed on the stairs ? No, sir. That is what I ask-
ed you; I understood you to say, you saw
Samuel Phillips when you passed out of the
market house? I did. You then took your
station on the edge of the pavement op-
posite the pillar which is between the main arch
and the litte arch, nearest south on the east front
of the market house ? Yes, sir. Now I ask you,
while you were in that position, on the edge of
the pavement; did you see Sam Phillips again
before you saw Archy Beebee on the stairs ? No,
sir. Then you lost sight of him as you passed
through the crowd? I didn't notice him any
more. Now I ask you, while standing there in
that spot, and before Beebee come in sight, if you
can't name anybody you saw in that crowd ? Yes
sir, I can. Who? I saw Mr. Tolar there, while
I was standing near the edge of the pavement.
Before Archy was on the steps ? While he was
on the steps, I am talking about before you got
there as the ladies went to the carriage didn't
you? Yes, sir. Do you mean to say Archy Bee-
bee came down stairs at the same time the ladies
did? No, sir. How long afterwards ? Ten min-
utes, I reckon. Then you were standing at this
place on the pavement about ten minutes ? Yes,
sir. Now during that ten minutes, who did you
see, before you saw Archy Beebee come down
the stairs; or standing on the stairs ? I don't re-
collect seeing any person but Mr. Tolar. Did
you see Capt. Tolar then. Yes, sir. You saw
Capt. Tolar before you saw Beebee on the steps ?
Yes, sir. You swear that? As he was on the
steps. I asked you before he was on the stairs.
No, sir. You didn't see him before? No, sir.
I ask you again who you did see, during the ten
minutes, you were . standing there, stationary in
the crowd, before Arehy Beebee appeared on the
steps? I dont know anybody. You can't name
a soul you knew ? No, sir. And you swear you
can't name a soul ? I don't think I can name
any person at that time. Now you say you saw
Tolar when Archy appeared in the door of the
stairs? Yes, sir. You lost sight of Archy when
he got to the bottom of the steps? Yes, sir.
And didn't see him again until he came outside
of the arch ? No, sir. But you did see Tolar
while Archy was up-stairs, coming down the
steps, while he was coming out of the door ? Yes,
sir. Now, where was Tolar standing then ? He
was about three feet from the wall of the market.
On the pavement? Yes, sir. Was he out side
of the market house ? Yes, sir. He was outside,
on the pavement about three feet from the wall
of the market house ? I would not swear exact-
ly where he was standing. You swear he was
standing outsjde of the market house ? Yes, sir.
At the time Archy Beebee was on the stairs ?
Yes, sir. You swear to that ? Yes, sir. Did you
see Tolar when he came there ? No, sir. But
you did see Tolar while Archy was on the stairs ?
Yes, sir. Did you see who was near him ? No,
sir. Did you see Leggett near him? I didn't
notice; I was looking at Beebee at that time.
But you saw Capt. Tolar? Yes, sir, he was a
large man. And he was standing about three feet
from the market house ? On the pavement in
front of the wall that separates the two arches,
you say ? Which two arches ? The big one and
the little one. There are two little ones ? On
the south-east corner. He was standing between
you and the market house then ? Yes, sir. To-
lar was standing then outside of the market
house, between you and the wall of the market
house? Yes, sir. About three feet from the
market house, and you were on the edge of the
pavement ? Yes, sir. At the time the negro was
on the steps ? Yes, sir, he was coming down the
steps. Now at that time did you see Lutterloh
with Tolar? No, sir. Did you see Leggett at
or near him ? No, sir, I djdn't 6ee him. Did you
see E. P. Powers at or near him ? No, sir. Did
you see Tom Powers or Monk at that time ? No,
sir, I didn't see either one of them at that time.
Then your attention was directed to the man on
the steps coming down ? Yes, sir. Could you
see the men who were inside of Becky Ben's stall
from where you were standing? I could see
them move, I could not see their faces, I could
see their hats. But you could see this man, he
being elevated as he came down ? Yes, sir. You
saw him through the little arch ? Yes, sir Now,
when he came down you lost sight of him ? Yes,
sir. While he was coming down the steps, did
you see anybody attempt to get athim ? No, sir t
232
PROCEEDINGS OP A MILITARY COMMISSION,
You saw nothing of that sort ? No, sir. Did you
hear anybody cry out that he was coming ? I
heard some one say there he comes. How many
did you hear say that ? Four or five I reckon.
Were the voices you heard inside of the market
house or outside ? I could not say whether they
were inside or outside, I didn't see them. Didn't
you hear them? Yes, sir. You could not, from
hearing, say where the voice was ? No, sir. Did
you ever see a voice? No, sir. You heard the
voices? Yes, sir. You can't tell from the souud
where they were, whether they were inside or
out? No, sir. Then you lost sight of this man
'until he reached the arch, and turned round the
corner, were you still in the same position ? Yes,
sir. Where was Tolar, had he gone? 1 don't
think he had. You think he was still standing
there? Yes, sir. When Archy Beebee turned to
come out of the market house, did you see any
one attempt to grab him ? A rush was made at
him, but 1 don't know who made it, as he got
right around. Where did the rush come from,
inside of the market house? From the inside of
the market house, and outside too. Everybody'
in the crowd rushed at him ? No, sir, not every-
body in the crowd. Did the majority of the
crowd rush at him? Yes, sir. They rushed
right towards him? Yes, sir. Did you see
anybody grab at him? No, sir. You swear
you did not ? No, sir, not at that time.
Did you see any one attempt to catch hold of
him? Not that I saw. Did you hear any one
say give him to me ? No, sir. Did you hear any
one demand the prisoner, in any shape or way ?
No, sir. Did you hear the sheriff tell them to
keep off men ? Yes, sir. But you heard no de-
mand for the prisoner, saw no grab at him ? No,,
sir. How many persons were therebetween you
and the prrisoner, at the time you spoke of, when
this rush was made? About eight or ten, I
reckon. How many persons were there between
you and Tolar? I didn't see Tolar just at that
time. Yon lost Sight of him? I lost sight of
him as the rush was made. How many were
there between you and Tolar the last time you
saw him, just as the rush was made ? About
four or five. Then you lost sight of him in that
rush ? • I was looking at Beebee. Is that the last
time you saw him until Archy Beebee was killed ?
No, sir. You say at the time this rush was made
you saw no demand for the prisoner made by
anybody, but you heard the sheriff tell them to
keep back. I heard some say keep off, I don't
know whether it was the sheriff or police.
Didn't you recognize the voice? No, sir. Do you
know sheriff Hardie ? Yes, sir. Was it his voice ?
I could not tell you, there were so "many voices.
Did you know Wemyss ? Yes, sir. Was it his
voice? I don't know, sir, I would not swear
whose voice it was. Do you know your father's
voice? Yes, sir. Was it his voice? I don't
think it was. That was just as Archy come
out of the arch, just as he turned to go to the
guard house? He just put his foot on the
pavement. Then the rush was rnpde ? Yes,
sir. And then- you lost sight of Tolar?
Yes, sir. And you heard this exclamation in the
crowd, you don't know who it was made it; and
that is the only exclamation you heard? Yes, sir.
What happened next ? Beebee passed on two or
three steps, or maybe further. Did you stand
still? Yes, sir. Did you follow him with your
eyes and body turning as he moved ? I turned
my body and eyes, and maybe my feet. You kept
your eyes toward him as he moved, did you ? Yes,
sir. He moved two or three steps you' say ?
Maybe further. Well now, this rush that you
speak of, was it continued ? No, sir. It stopped ?
Yes, sir. Was it repeated? I did not see it re-
peatcd? Didn't you hear or see it repeated?
No, sir. Then when the Sheriff said stand back,
the men did stand back? I think they did, they
stopped anyhow. Then Beebee moved on with-
out any body harrassing his movements ? Y es,
sir, I think he did. Did lie walk toward the
guardhouse? Yes, sir. Did he walk smoothly and
quietly along that distance? No', sir, he made
some terrible efforts to get loose. Were those
efforts made at the end of those three or four
steps, or while he was making them? Just as
he stopped, he was shot as he was making those
v efforts just as he raised up. You say the rush
was made on him, and he was about a foot out-
side of the market house? Yes, sir. Then he
took some four or five steps ? I reckon ; may be
more and may be less, and he may have gone
three, and he may have gone six. Was he making
those efforts while he was making those steps, or
after the steps were made ? After the steps were
passed. After he had taken three or four steps,
he made those efforts to escape ? Yes, sir. Now
while he was taking those three or four steps, I
want to know whether anybody was trying to
get at him? Not that I seen at that time. The
pressure upon liimhad stopped? Yes, sir. He
went along smoothly and quietly? Yes, sir.
Then the next thing you noticed were these ter-
rible efforts to escape ? Yes, sir. You were still
keeping the same position ? I don't think I had
moved a foot out of the position I was in at first.
You were just following him with your eyes, and
watching him in your same position ? Yes, sir.
At the end of these three or four steps he made
a violent effort to escape? Yes, sir. What
did he do, sir ? He. tried to get loose.
What was he doing ? He tried to jerk loose from
the police. What did he jerk with ? With his
hands and feet. And whole body did he? Yes,
sir. Did you see anybody try to get athini ;
about the time he was trying to escape ? No, sir.
You didn't see anybody strike at him with a
knife ? No, sir. How many men were between
you and him at that time ? Six or seven, I reck-
on. The crowd was all over that part of the
pavement was it? Yes, sir. They were not
pressing on him however? No. sir. You could
see him distinctly. Yes, sir. Six or seven.people
were scattered between you and him, a pretty
closely packed crowd you didn't see anybody
strike at him with a knife however? No, sir.
You didn't see Monk with, a knife trying to
get at him then? No, sir. You didn't hear
anybody strike; any one of the police strike a
dead blow as though upon a man's arm with a
club? No, sir. You didn't hear any knife
fall and clash upon the pavement ? There was
too much fuss to hear a, knife fall. What was
making the noise? People scrambling about,
Beebee trying to get loose, and the police try-
ing to hold him. Did they shout? No, sir.
It was their feet that you heard ? Yes, sir.
You heard no exclamations at all, no cry of shoot
him, before the cry you spoke of, when they said
"shoot the damned son of a bitch," after he made
the attempt to escape ? Not before that time.
Nor of kill him? No, sir. Nor any exclamation of
rage at all? No, sir, not at that time. Now, sir,
when you heard this^rv of shoot him, that was
just after he had attempted to escape, and had
fallen down ? Yes, sir, he fell down. When was-
the cry made, while he was down, or while he rais-
ed ? While he was trying to get loose. Before he
fell? Yes, sir. What was the cry ? "Shoot the
damned son of a bitch." That was Phillips
was it? I don't know who it was. Did you see
Phillips at the time you heard the cry ? He was
standing by me at that time. At the time you
heard that cry ? Yes, sir. That was before the
"CONVENfc'a AT RALEIGH, NORTH CAROLINA^
283
hegro fell down ? While he was trying to get
loose. That was before he fell down ? Yes, sir.
Before the negro fell down, when you heard this
cry, Phillips was standing by you ? Yes, sir, a
little in front of me. You were standing with
your face towards Beebee's, were you ? Yes, sir,
on the edge of the pavement. And Phillips was
standing by you a little to your front ? Yes, sir.
Now was it to your front and right, or front and
left ? Front and right. After this cry was made
how long was it before the pistol shot? He drew
the pistol just as the cry was made. How far
"was Phillips from you, could you have touched
him? Yes, sir. Was he stationary or moving?
He was standing still at that time. Now you
saw Phillips draw the pistol just after the cry
was made to kill the damned son of a bitch ?
Yes, sir. And it was while Archy was still strug-
gling before he fell down? Yes, sir, while he
was struggling and trying to get loose. He fell
down after he was struggling ? Yes, sir. Wasn't
it the struggle that threw him down ? Yes, sir.
It was before he fell down you saw him draw the
pistol ? Yes, sir. He drew it from the left side
you say? Yes, sir. And cocked it as soon as he
drew it ? He cocked it as he drawed it up. As
soon as he drew it ? No, sir. He didn't bring it
up as soon as he drawed it ? He drawed it right
out and brought it up and cocked it as he drawed
it. How long after he brought it up did he fire?
He was sort of steadying it, and I turned my head
and the pistol fired. Could you have counted
five from the time you saw him draw the pistol
to the time it fired ? I think I could. Could you
have counted ten ? I didn't think I could. You
saw him cock it? Yes, sir. Ashe brought it
up ? Yes, sir. He drew it from his left side,
and presented it; it sort of wavered, and while it
was wavering you turned your head off? Yes,
sir. How many men were between you and
Phillips ? There was not any. You were the
next person to him, and he was to your right
and front, on the pavement? Yes, sir.* How far
was Archy Beebee from him? About six or sev-
en foot I reckon. Did you see Archy fall down ?
I saw him while he was struggling, I don't know
whether he fell or not. You saw when he went
down ?■ Yes, sir. Did you see when he got up?
I didn't see him as he rose, when the pistol was
held up I turned off my head. Did you see him
rise at all? I seen him rise nearly up, he
was assisted by somebody by catching him
back of the collar. Who was assisting
him up? I don't know, sir, his back was
to me. Don't you know Sheriff Hardie by his
back? I don't think I would in that crowd.
Can't you tell anybody who helped him up ? The
police may have helped him up for what I know.
And you turned off your head as you saw him
rise ? Yes, si1*. Is that so or not ? That is so,
Bir. At the same moment you saw him rise,
Phillips bad this pistol presented towards him ?
Yes, sir. You saw Phillips draw the pistol while
he was struggling, and before he fell down, you
saw him cock and present it straightway, 'and
keep it wavering there, and as the man rose he
steadied it and you turned your eyes away ? Yes,
sir. Now sir, which way did you turn your eyes,
to the left or right ? To the right. And looked
right down the street? Yes, sir. You say as
you turned your eyes, you saw John Armstrong ?
Yes, sir. In the direction of Davis' tin store.
Yes, sir, a little to my right towards Davis' tin
shop. You turned jTour eyes to the left? Yes,
sir. You were standing on the edge of the pave-
ment, with your face towards Archy, when you
turned your face to the left ? Yes, sir. And you
saw John Armstrong between you and Davis'
store? Yes, sir. When you were standing on
the pavement, with your face towards Beebee;
could you not see Davis' store ? I was not look-
ing at Davis' store then. Couldn't you see it,
with your face towards Beebee ? I reckon I
could have seen it—one side of it. Were you not
right in front of it; couldu't you have seen it
plainly? No, sir. But by turningyour head over
your left shoulder you saw Davis' store very
plainly? I saw the front part of it. You heard
the pistol fire, and the smoke came right back on
you and Armstrong? Armstrong was ten feet
from me. Was he in front of you, or to the left
of you? Front and right. And you, when you
turned your head over your left shoulder saw it
distinctly? I didn't turn my head over the left
shoulder, I turned it just so (turns it to his left,
but not over his left shoulder.) And you saw
John Armstrong ten feet to your front and right?
Yes, sir, (points to the left.) Do you call that
your right? When I turned, I would. It was
in the direction of Davis' store that you saw him?
Not exactly in the direction of Davis' store, a lit-
tie to the right. It was not right between you
and Davis's store, it was further to the right?
Yes, sir. How far was Archy in front of you?
About seven feet. Did you see Armstrong in the
same line you saw Archy ? No, sir, 1 didn't.
Was he further to the right than Archy ? He
was to my left, when ;I was looking at Archy.
Did you see him while you were in the act of
turning, or after you had got your head turned ?
While I was turning. Did you look at him ?
Not;any time. Then you just saw him as you
glanced your eyes around? Yes, sir. And you
saw that one man in the crowd, and didn't distin-
guish any others; and you swear that j ust in casting
your eyes away for the purpose of avoiding the
immediate presence of the shot, you saw Arm-
strong, to your right and front, and almost ten
feet off? Yes, sir. You didn't identify any one
else at that time ? The most that were standing
there were colored, and I did not know them.
You saw enough to see that? Yes, sir. You
heard the pistol fire ? Yes, sir. Did you look
back to see who fired it ? Yes, sir, I turned my
head when the pistol fired. Your face was to-
wards Beebee before you turned it to the left;
I understand you didn't change your position—
that you didn't change your feet ? I said I didn't
think I changed a foot from any position. Did
you turn your body? Yes, sir. That was the
way you got Armstrong on your right and front?
Yes, 6ir. It was after you had changed your po-
sitionthathe was on your right and front? I
turned around, 1 didn't go away from where I
was standing. Didn't you say you turned your
head over your shoulder ? I turned my body,
too. After you got in that position it was that
Armstrong was to your right and front? Yes,
sir. As soon as the pistol fired you turned
about ? Yes, sir. Between the time you last saw
Tolar, did you see him again before the pistol
fired? Yes, sir. Where did you see him again?
Standing in front ot the pillar that separates the
two arches. The same pillar that you were
speaking of before? Yes, sir. You saw him
standing there? Yes, sir. Before the firing?
Yes, sir. How far was he from you? About
four feet. How far was he from the pistol ?
About a foot and a half. Was that just before
the firing ? Yes, sir. You swear then Tolar was
standing near that pillar after the rush was made
on Archy Beebee, and just before the firing?
Yes, sir. Did you see him before you saw Phil-
lips draw the pistol or after you saw him draw it,
or at the same time ? At the same time. You
saw Tolar at the very same time you saw Phil ips
draw the pistol ? Yes, sir, I was looking at Phil-
lips when be drew the pistol, and of course I
PROCEEDINGS OP A MILITARY COMMISSION,
saw Tolar as be was standing on tbe other side
of him. He was right close to him was he?
About two feet. He was about five feet from
you, you say? Yes, sir. And how far from the
edge of the market house ? About three feet, I
reckon. And about two from Phillips ? Yes, sir.
Was Phillips a little to your right and front, and
a little to Tolar's left and front ? I think he was,
I don't know. Did you see Tolar? Yes, sir.
How did he stand with regard to him ? He stood
even with Tolar. They were about in the same
line ? Yes, sir. They were both to your right
and front, and about two feet apart ? Yes, sir.
What was Tolar doing ? He was not doing any
thing. Standing there perfectly still ? Yes, sir.
Did he have his arms folded on his heart? I
didn't notice, his arms were hanging down, I
reckon. Could you see them ? I could see them
ps far as the elbow. You didn't see him have on
a shawl then ? Yes, sir. Did he have his arms
outside of the shawl ? No, sir. Could you tell
where his arms were hanging ? I could judge by
his shawl. This shawl was not fastened up at
his throat ? I don't know whether it was fasten-
ed or not. You say you could see his arms and
that they were hanging by his side ? Yes, sir, I
seen about to his elbows. And from that you
came to the conclusion that his arms were hang-
ing by his side? Yes, sir. If the shawl had
been pinned up close to the throat you could not
have seen his arms; you saw his arms through
the shawl, did you ? No, sir. Did you see them
inside of the shawl ? 1 would judge by his shawl.
He did have on a shawl? Yes, sir. Did he have
on his spectacles ? I don't know whether he
did or uot. Did he have on a hat that you can
describe? Yes, sir, I guess I can. What sort of
a hat was it? A tall, black wool hat. And you
say you saw part of his arms, and from that you
concluded his arms were hanging by his side.,
just before the pistol fired? I reckon they were.
Was there any body between him and Phillips ?
Not that I know of. Didn't you see them dis-
tinctly—both ? Yes, sir. Didn't you see any-
body between them ? No, sir. Who was furthest
from Archy Beebee, Tolar or Phillips? I don't
know about that; they were both the same dis-
tance, I reckon. , Was he right in front of both
of them ? Mr. Tolar was sort of in front of
Beebee, and Phillips to his left. Phillips was
more to the left of Beebee ? Yes sir. He was
.further towards the side where the shot entered?
He was to the rear and left; I don't know where
the shot entered. And Tolar was about square
behind? Yes, sir. You didn't see any body
.between them ? No, sir. And you saw Tolar
you say, at the time Phillips drew the pistol ?
did you see him when Phillips cocked the pistol ?
I don't know that I seen him at the time he
cocked it. You know you saw him when Phil-
lips drew it? Yes, sir. You don't know whether
you saw him when he cocked it or not? I don't
know for certain. Did you see him when you
saw Phillips present it? Yes, sir, I think I did.
And then while it was wavering and uncertain
you turned away ? When he steadied it I turned
away. How was Mr. Phillips dressed that day?
I could not describe his dress, he had on a black
coat I thought. Did he have on a shawl ? No,
sir, be didn t. Did he have on an over coat ?
No, sir, I don't think he had on an over coat.
' Aintyou certain ? I am rather certain he hadn't.
He had on a black coat ? Yes, sir, I think it was
, a black coat. Where did he draw this pistol
from? From his left side; I don't know whether
he run it down under his coat or not. What sort
of a pistol was it ? A pretty large pistol. Didn't
he draw that pistol out of his sleeve? I don't
know where he drew it from. Couldn't he have
drawn it from his sleeve from the way you saw
him put his hand ? I don't know where he drew
it from. He might have drawn it out of his
boot,? He didn't draw it out of his boot; he drew
it from under his coat some where.' He drew it
between his knee and his shoulder? Yes, sir,
he did. Can you tell the nearest point between
those two, whether it was about his arm or waist
or about lower down ? I think he drew it about
his left vest pocket. When you saw this pistol
presented and heard it fired, and turned about
did you see Tolar when you turned back ? No,
sir, not at that time. He was gone was he ? I
didn't look. You had seen him before you turn-
ed your head, had you ? Yes, sir. Was that the
last time you saw him before the pistol fired ?
Yes, sir. The last time you saw him before the
pistol fired was when Phillips drew his pistol ?
Yes, sir. You didn't see it after he cocked:and
presented it ? No, sir. But at the time you saw
Tolar he was standing perfectly still with his
arms apparently by his side? Yes, sir. And
his face towards the prisoner? Yes, sir. If he
had a weapon in his hand could you have seen it ?
No, sir, I could not. Could Tolar have drawn a
weapon and presented it without your seeing it ?
Not if he had drew it up high, Could he have
drawn a weapon without your seeing it? He
may have drawn it, but could not presented it,
he could not have drawn it up even with his eye.
Do you swear that Tolar drew no pistol at the
same time Phillips drew his ? No, sir, I didn't
see him draw it. You say it might have been
and you not have seen it ? Yes, sir, it might
have happened and I not seen it. You say noth-
ing for certain about that, but you can't say it
didn't occur? No, sir. These two men were
standing side by side when you saw Phillips
draw his pistol ? They were not touching—they
were apart two feet from one another. On the
same level and about the same distance from the
deceased? Yes, sir. When you turned back you
say you didn't see Tolar ? I didn't see him after
I saw Phillips draw the pistol. When you turned
back after you heard the pistol fired, aid you see
Tolar? No, sir. Did you see Phillips ? Yes,
sir.. Did you see his pistol ? Yes, sir. What
was he doing with it ? He was putting it in his
pocket or vest. Did you see him draw it back
and flourish it? No, sir. Did you hear him say
any thing ? Not that I recollect of. Think, sir,
didn't you hear him say " that negro is.killed,
but I didn't kill him" ? No,.sir. If he had said
that you would not have heard it ? I was close
enough to him to . have heard it if he had said it.
Just alter the pistol fired did it create a silence in
the crowd? Yes, sir. , Then just after the pistol
fired, you turned towards Phillips, and you didn't
see him draw his pistol back, and hold it up so,
(flourishing)? No, sir. You didn't hear him say
" the negro is dead but I didn't kill him," do you
swear you didn't hear that ? I will swear I didn't
hear him say it. Was there apy body between
you and him ? No, sir. You could hear any or-
dinary tone of voice, and there was a great silence
just after the pistol fired ? Itwas very quiet.. You
turned immediately after the pistol fired? Yes, sir.
And you saw Phillips there and he was in the
crowd returning bis pistol ? Yes, sir. You didn't
hear any such cry as "the negro is dead, but I
didn't kill him " ? No, sir. You heard him make
no remark ? No, sir. You swear positively there
was no remark made there, that you heard by Phil-
lips? No, sir. Were you alarmed, sir? No, sir.
You were cool and self-possessed; you remember
what occurred ? Yes, sir. You. were not frigh-
tened? No, sir. You were as cool and self-pos-
sessed as you are now ? Yes, 6ir. What became
of Phillips after you saw him return that pistol?
CONVENED AT RALEIGH, NORTH CAROLINA.
235
I don't know, sir, I walked on around to see if
Beebee was shot. Did you leave Phillips stand-
ing where he was before ? Yes, sir. Standing
still ? He was putting his pistol in. Did he
draw his hand out after he put it up? I didn't
see it. At that time you didn't see Tolar ? No,
sir. Which way did you move of!'? I walked off
the pavement and walked around the crowd and
went to Beebee. How did you get to Beebee ?
I went around the crowd. The' crowd was all
around him ? There was not many in front of
him when he was shot. You went around in
front of him did you? Yes, sir. How long did
you stay in that crowd ? About half an hour I
reckon. Did you go right up to Archy, where
he was shot when you got in the crowd ? I went
as near as the police would let me. How elose
was that ? About three feet. Did you see Phil-
lips after that; I mean after you left the position
you stood where Phillips had fired the pistol?
No, sir, I didn't. Did you see him at all that day?
Not that I remember. Did you see Tolar after
you got around in front of Archy ? I seen him
in a few minutes after that. Where was he
standing then ? He was standing where he was
when I first saw him by the pillar of the market.
Was that the place where you first saw him that
day? No, sir. - You mean at the place where
you last saw him then ? Yes, sir. Was his back
towards the pillar? Yes, sir, I think it was. Did
you see Tolar with any weapon that day? No,
sir. Do you know that he had any weapon that
day ? No, sir. Have you any reason for know-
ing he had any weapon that day ? I know I didn't
see him have any. Have you heard him say he
had none? No, sir. Do you know anybody who
knows whether he had one ? I don't know who
knows he had one. Did any one ever tell you?
No, sir. You saw no signs of a weapon on him ?
No, sir. Did you ever see him wearing a weapon?
I don't think I did. What sort of a pistol was-
that you saw Phillips fire ? I didn't see him fire,
I turned my head. What sort of a pistol was it
you saw him draw and cock and present ? It was
a large pistol; it looked like a Navy pistol. Did
you notice anything peculiar about it ? No, sir.'
You saw it while he was drawing it and present-
ing it; could you have counted five or six or sev-
en while you were looking at it? May be more,'
and may be not that much. Did you see it when
you turned your head back to look after the pis-
tol was fired ? He was putting it away. Then
you did see it after you turned your head back ?
Yes, sir, I seen him put it up. You saw it before
it was put up? Yes, sir. In what position did
he have it? He had it carrying it down to put
in his pocket. Was it part in and part out ? The
muzzle of it was just about his coat. It was a
large pistol, about the navy size ? Yes, sir. You
can't speak with absolute certainty about that ?
No, sir. What became of Tolar after you saw
him standing against the market house after the
shooting took place, when you went around in
front of Archy, was he standing where you last
saw him? Yes, sir. Didn't you hear anybody
cry out in the crowd who it was that shot him?
I heard John Armstrong say that. While Tolar
was standing against the pillar of the market
house ? I think so. What did you hear him say?
He said "Tolar shot him," "Tolar shot him;"
While Tolar was standing there ? Yes, sir. What
did Tolar do ? I don't know that he done any-
thing, I didn't notice him. You say that it was
while Tolar was still standing there that you
heard John Armstrong make that remark, and
you didn't see Tolar do anything ? No, sir.' Was
that the only person you heard say " Tolar shot
him" ? The only one. How many times did he
say it ? Two or three. How near was he to the
#
deceased man when he said it ? About twelve
feet I reckon. Which way was he standing from
you, and from him, and from Tolar, was he on
the pavement ? No, sir. Was he toward Davis'
store? Yes, sir, near the edge of the pavement.
Opposite what part of the market house ? The
south-east corner of the market house. Down
towards Davis' store, near the edge of the pove-
ment? Yes, sir. Just on the south-east edge of
the pavement was this man using the exclama-
tion that " Tolar shot him" ? Yes, sir. How ma-
ny times? Two or three. Was it four or five ?
I don't know. Do you swear you didn't heart it
five times ? I won't swear, he may have said it
six. When you say one or two you don't mean
one or two ? I mean what I say. You say you
won't swear it was six times ? I won't. Will you
swear it was more than one? Yes, sir. Will
you swear it was more than two? Yes, sir.
Will you swear it was more than three ? No, sir.
You think it was about three times? Yes, sir.
You might as well have told that at first ? I said
it was about three. Your impression is, it was
three times in a loud, enough tone for the crowd
to hear it ? They might have heard it, if they
wanted to hear it. Was it as loud as I am talking
to you now? I reckon it was. You didn't see
Phillips fire the pistol ? I turned my head as he
raised the pistol. What was your reason for turn-
ing your head ? I didn't want to stand there ; I
might get a cap or something in my eyes.
Was that your reason, because you were afraid of
getting a cap in your eye ? Yes, sir, or being
burned with the powder. You were close enough
to render .it dangerous, that a cap might fly into
your eye or the powder burn you? Yes, sir.
You were behind him, you say, a little to his rear ?
Yes, sir. And it was the fear that it might hurt
you, that made you turn your eyes away ? Yes,
sir. Did you ever fire a gun ? Yes, sir. Have
you ever been out hunting? Yes, 6ir. Fired a
gun frequently? Yes, sir. Do you turn your
eyes away from where you shoot? No, sir.
Do you ever shoot them ? I shot one. Did you
ever fire a pistol ? Yes, sir. Did you shut both
eyes when you fired that ? No, sir, Do you
shut both eyes when anybody else fires a gun ?
I turn them away, I don't shoot them, I don't
want my eyes to get put out. You think there
is danger of putting your eyes out? Yes, sir.,
And you always do that ? Not when I shoot my-
self. When anybody else fires, you turn away,
and you did that day for the same reason ? Yes,
sir. Did you see anybody else there with a weap-
on, that day ? No, sir, I seen Monk have a knife.
What was he doing with it ? He was trying to
get to Beebee, he was wanting to cut his throat.
How do you know ? He said "let me cut his
damned throat." Did he have a knife then ?
Yes, sir? Didn't you see him strike at the man
with a knife before ? No, sir. Didn't you see Tom
Powers Hi ere that day, at all ? Not that I rem em-
ber. Did you see Ed. Powers there thatday at all ?
No, sir. Either before the pistol fired or after-
wards ? No, sir. Did you see Lutterloh there that
day, at all? No, sir. Leggett? No, sir. Sam Hall?
No, sir. Did you see Maultsby after the first time •
you have described ? No, sir, I didn't see him but
once. Did you see Jonathan Hollingsworth?
No, sir, I don't know that I know him. Do you
know George Hollingsworth? Yes, sir. t)id
you see him there ? No, sir. Do you know Jas.
Kendricks ? Yes, sir. Did you see him there?
No, sir. Who did you see after the shooting ?
I told you all 1 seen. Didn't you see any body
after the shooting ? I seen plenty of them. Whot
were they ? The police and Bond and Faircloth'
and Wemyss. They are the very ones I don't
want to know ? ' They are the very ones I know.
236
PROCEEDINGS OF A MILITARY COMMISSION,
Didn't you know any others you saw ? No, sir.
You saw no weapon there that day except the
knife that Monk had and the pistol that Sam.
Phillips had'? That is all I seen. You saw
nobody with a pistol at all but Phillips ? No, sir.
At no time while voir were there did you hear
any body say any thing about going to kill Arehy
Beebee'? No, sir. Didn't you hear Phillips say
something about it ? No, sir. Didn't you hear
Phillips make some threats that he was going to
doit'? No, sir. Were there any persons stand-
ing further from Beebee than you were at the
time this shot was made ? Yes, sir. You were
right in the main crowd; the crowd was behind
you as well as before you? Yes, sir. Was the
crowd pressing pretty close ? Not at the time
the pistol fired, it was pressing pretty close when
he turned the corner. After that the pressure
ceased? Yes, sir. You were right in the midst
of1 the crowd? Yes, sir, it was all around me.
And so it was with regard to Tolar and. Phillips ?
Yes, sir, it was all around them, hut it wasn't
quite as thick around them. It was around them
though? Yes, sir. Could you tell me a soul
who was among those persons who were nearest
to Phillips and Tolar? I can't. Don't you re-
member recognizing ary body there ? Only what
I have told you. Then the first time you made
this disclosure was about two weeks ago ? It
might have been two or more. How much more?
It might have been less than two weeks, I don't
know how long it was. Have you ever told it to
any body else since ? Yes, sir, I told it to Mr.
Cashwell and Mr. Fuller. Any body else ? I
told my father. Any body else ? No, sir. Do
you know there was a coroner's inquest to en-
"quire who committed this murder at the time it
occurred? No, sir. You didn't know that? No,
sir. You stayed at the market house about half
an hour after Beebee was killed ? I reckon half
an hour. Where did you go then ? I went home.
Where had you been the previous part of that
day ? I had been about home, and about Mr.
Lutterloh's corner. Did you hear about anybody's
intention going there to kill Beebee ? No, sir.
Where did you first hear that Beebee had at-
tempted to ravish Miss Massey ? In the morning
when my father came home off duty. What time
in the morning ? Before sun up. Did you go
out beiore breakfast ? Yes, sir. Where did you
go ? I went out in the street. Can't you tell me
where vou went ? I don't know that I could
now. Try ? I went down the street. There are
a. good many streets ? There ain't many about
there. There ain't many streets ahout Fayette-
ville ? No, sir. There are so many that I insist
upon having a direct answer to that question ?
I went down Hay street to the market and back.
Do you live on Hay street? No, sir. When you
went out in the morning before breakfast on the
day Archy Beebee was killed where did you go ?
I went down to the market and back and stood
around Mr..Lutterloh's. Where did you go then?
I came home and got breakfast. Where did you
go after breakfast ? I went down to the corner.
Didn't you hear anybody talking about this thing?
I heard them say he had made a rape on Miss
Massey; I didn't hear them say any thing about
killing him. They said it was all right didn't
they ? I didn't hear them say whether it was right
or wrong. Neither expressed their approbation
nor disapprobation of it; just mentioned it as a
fact? Yes, sir.
Ke-direet Examination by the Counsel for the
accused:
, You have spoken of it as being a long time, in
describing things as they occurred around there ;
how long"a time was it after you first saw the ne-
gro Beebee turning the comer of the arch, to the
time he was killed? I don't know, Bir, I could
not say about that. Was it a short time or a long
time ? It was a short time 1 should think; I
reckon it was pretty short with him. How many
do yon think you could have counted between
the time Beebee turned the arch to go down to-
wards the guard house and the time he was shot?
I don't know sir; I could not say for certain
about that. Could you have counted fifty ? I
don't know, I might and might not have counted
fifty—I might not have counted twenty and I
might have counted a hundred. You think you
could have counted between twenty and a hun-
dred. I didn't say how many I could have coun-
ted. Matters were passing there in rapid succes-
sion one after another, no pause at all ? There
was no pause there then ? What was the matter,
now that most attracted your attention there, du-
ring that time ? I went there to see Beebee tried.
Between the time that Beebee appeared upon the
steps to go down and the time he was shot, what
was the principle thing that attracted your atten-
tionj; what was the principal thing you took no-
tice of? Beebee. And the matters which were
occurring around there that you have spoken of
were matters which didn't attract your attention
so much because you were looking at Beebee to
see what became of him? Yes, sir. I understand
you to say that the time the pistol shot fired you
turned to look down the street towards the east ?
Yes, sir. And that having turned you saw John
Armstrong to your right and to your front. Yes
sir. Over in a line with Ichabod Davis' corner ?
Yes, sir. And that is what you mean by his be-
ing to your right and front? Yes, sir. Not that
he was to your right and front when you were
facing towards Beebee ? No, sir. But that he
was to your right and front when you turned to
look from the pistol ? Yes, sir. And he was ten
or twelve feet off Irom you, you say? Yes, sir.
With regard to the positions of the parties, Tolar,
&c, that you have spoken of, you say that Tolar
was you think, rather to your rear, or to your
front ? To my front. To your right or left ?
To my right. That what Tolar did you didn't see
very distinctly ; whether he had a pistol or not,
you will not undertake to swear ? No, sir. That
your attention was drawn to Sam. Phillips who
took the pistol from his left side, cocked it, as
he raised it, and moved it about as if to get a po-
sition to fire, and then before the firing occurred
you turned your eyes down to the East. Yes, sir.
What Tolar was doing in the mean time you don't
undertake to say ? I don't know. That whether
Phillips fired the pistol or whether he didn't, you
don't swear directly ? I would not swear who
shot it. But you heard the report and immedi-
ately turned your eyes back, and there you saw
the smoke rising from where Phillips had his pis-
tol? Yes, sir. And you saw Phillips return the
pistol to his left side? Yes, sir. And though
you say things might have occurred around there
that didn't attract your notice, you swear that
there is no mistake about it—that you did see
that? Yes, sir, I saw that and it is so. That is
so ? It is that.
Questioned by the Commission:
Are you a judge of time ? No, sir, I aint. You
stated in your examination in chief, that it was
ten or fifteen minutes after the pistol was fired
before you heard any one say who had done the
shooting? Yes, sir, it was about that. Do you
swear positively that no one cried out "Tolar
shot," or "Tolarshot him" immediately after
the shooting ? Not that I heard of, sir. You do
swear then, that it was as long as ten or fifteen
minutes ? It might have been shorter or longer.
Was it shorter or longer ? I could not swear ex-
actly. Was it ten minutes ? I reckon it was
CONVOKED AT RALEIGH, KORTII CAROLINA.
Was it twelve ? No, sir. Then it was between
ten and twelve minutes from the pistol firing, be-
fore you heard John Armstrong make that re-
mark which you have sworn you heard him ?
Yes, sir. And Tolar was then standing against
the end of the market house ? Yes, sir, near the
wall. On the outside ? Yes, sir. On the pave-
ment? Yes, sir.
The Court here took a recess of five minutes.
David Cashwell, a witness for the defence,
having been first duly sworn, testified as follows:
By Counsel for accused:
Where do you reside Mr. Cashwell ? In Fay-
etteville, sir. What is your first name? David.
How long have you resided there ? Since sev-
enteenth of January, 1863. What age are you ?
A little over fifty. Were you in Fayetteville on
the day Archy Beebee was killed? Yes, sir.
Were you at the market house at the time of the
killing ? Yes, sir. What time of the day did the
killing occur? I can't say positively, it was in
the atternoon. How long after dinner, about
what time of the day, to the best of your recol-
lection, did you go to the market house ? I think
between three and four o'clock. For what pur-
pose? With the intention, sir, of witnessing the
trial. Did you hear the trial ? When I arrived
there and started to go up stairs, I was told by
eome parties—I don't recollect who, now—that
the trial was being conducted privately, and that
spectators were not admitted,—that the doors
were closed. Then I kept on through the mar-
ket house and over to Mr. Taylor's store, on the
corner. At which arch had you entered ? I think
by the southern. How long did you remain at
Mr. Taylor's store? I don't recollect; I didn't
note the time, it was not a great while, though;
it might have been fifteen or twenty minutes.
Well, sir, did you return to the market house ?
Yes, sir, I did, but not until after the ladies had
been conducted down stairs, and had driven off
in the carriage. Did you see the carriage at the
time it came up ? Yes. Did you see Mr. Bond
escort the ladies to the carriage ? Yes, sir. Did
you see anybody else go to the carriage ? I don't
recollect anybody but him, at that time. Did
you see anybody subsequently? None, except
Mr. Bond, when he came up he ordered the car-
riage to go away. Did you visit the carriage ?
Yes, sir. Who else visited the carriage. Who
else—Mr. Taylor ? Did he go in company with
you, or alone ? In company with me. Did you
see anybody else there ? I don't recollect that I
did. Did you see Kobert Mitchell there? No,
sir. Did you see Captain Tolar there ? No, sir.
Did he visit the carriage ? If he did I didn't see
him. Were you looking at it all the time ? I
was from the time the ladies entered it until the
carriage drove away. Did Maultsby go to the
carriage? I did not see him. Do you know him ?
Very well, sir. Are you acquainted with Tolar?
Very well. You say you don't remember Mr.
Mitchell's going there ? No, sir. When the car-
riage drove oft where did you go ? When it drove
off, of coarse it left me there in the middle of the
street, about half way between Taylor's store and
the market house; then I passed up towards ffae
market-house and through the crowd, under the
eastern arch of the market-house; inside, and
under the market house. You say you passed
through -the crowd, how large a crowd was there?
Not a very large crowd; the most that were there,
that is, excepting negroes,—there were a good
many negroes on the outside, and down a little
in front of the areh and inclining towards the
south-east corner. Yes, sir, would that be on the
left or right as you entered the arch from Tay-
lor's ? On the left, most of them. Were they
white or colored people ? Moat of them were
colored I think. Were there many persons un-
der the market house at that time ? The most
that I noticed as being under, or about the mar-
ket house, seemed to "be collected just about un-
der the arch. How many white persons did you
estimate? I did not think of it at the time and
made no estimate. But to the best of your im-
Fression now, how many were there ? Well, sir,
can't say; there might have been fifty, or there
might have been less, or there might have been
rather more; I can't say. You passed through
the crowd, did you see Capt. Tolar in that crowd?
As I passed in i saw him. Where was he? He
was to my right as I passed in and through the
crowd. How far from the arch by which you en-
tered ? I think he was standing very nearly im-
mediately under the arch, that is my impression
now. As you passed through the arch, was he to
your right or left ? To my right, I think, just to
my right; I think I passed near enough to him to
have touched him. Was any one standing near
him at the time that you recollect ? My impres-
siou is—-I can't say about that. Was there a
crowd round him: were there many persons near
him ? No, sir, I don't think there were many
persons immediately near bim ; I think the body
of the crowd was rather to my left as I entered,
Were there many persons near Capt. Tolar at the
time yon entered the arch ? There might have
been one or two, or three, I didn't notice partic-
ularly. Was your attention attracted particular-
ly towards him ? Not at all. Was your atten-
tion attracted particularly by anything that oc-
curred in the crowd as you entered ? Not at all;
I passed through the crowd, and just as I had
about passed the crowd, some persons said,
" there he is now," that was the negro. I halted
and saw the negro coming down with the gherifl.
Describe, as well as you can, the order in which
the party was; first, though I would have you
describe your own position at the time when they
appeared upon the stair-steps ? I think I was
standing inside the arch, about ten feet from the
end of the arch, near the middle aisle, as nearly as I
can recollect. Well ? When there I saw the
Sheriff bringing Beebee down the steps : and 1
think I remained in that position until he was
carried round, and perhaps until he was shot.
Y6u think you retained that position from the
time you heard the cry of "there he comes now"
until he was shot; was the sheriff before, behind,
or one side of him ? As well as I recollect he
was on his right side. Did you notice any one
else with the prisoner at that time ? I think Mr.
Wemyss Was with him. Any one else ? I don't
recollect. You remember nobody else ? I could
not say now whether anybody else was with him.
You were still in motion at the time you were at-
tracted by the cry of "there he is now," or had
yon stopped ? I can't say whether I was in mo-
tion particularly, or had partially turned round.
How long alter you entered the main arch before
you heard that expression ? I think a very short
time. How many seconds or minutes ? I
couldn't say, I don't think it was minutes; don't
think it was more than a minute, that is my
impression. Did you see any demonstration
made towards the prisoner as he descended the
stair steps ? No, sir. Was there any thing of
that kind? Not that I am aware of. Did you
see any demonstration made upon him as he
reached the market floor, about the time he had
turned out of the aisle ? Just about the time he
was approaching very near the arch, and perhaps
turning, I saw some demonstrations then made
towards him. Tell the Court the character of
these demonstrations. Acrowd seemed to gather
immediately in front of him, as he was being
brought down, and several persons, as well as I
238
PROCEEDINGS OP A MILITARY COMMISSION,
can recollect, seemed to take hold of him. You
saw several; how many, to the best of your re-
collection? I can't say, sir, it was done Very
quickly. How many hands did you see raised ?
1 don't think I saw many, perhaps one or two,
perhaps two. Were they the hands of the same
person or of different persons ? I could not say,
I think they were the hands of different persons,
however. Did these hands have weapons in
them of any sort? I can't say that they had.
Did you hear any cries at that time ? Yes, a kind
of confused noise, could not say that I heard any
thing said distinctly. You heard no voice raised
above the hum of the crowd ? Some of the crowd
were making some noise of course, but whether
they were making demands for him or not I
couldn't exactly understand, but what occurred
made the impression on my mmd, at the time,
that they were demanding him from the sheriff.
Did you hear any such demand made in distinct
terms? 1 don't recollect that I did. From which
direction were the crowd pressing upon the
prisoner ? It was the crowd that seemed to be
immediately inside the arch, and filling, up the
way by which he had passed out. Northern or
southern portion of the arch ? The southern por-
tion. Would he pass to the left or right of that
crowd as he passed out of the arch ? Who ? The
prisoner ? He would have had to pass immedi- •
ately through that crowd that I speak of now.
Did you recognise the persons who were making
the demonstrations ? I did not. Did you see
Tolar at that time ? No, sir. Did you see Tom.
Powers at that time? Not that I recollect. Are
you acquainted with Tom. Powers ? No, sir, I
didn't know him. Have you become acquainted
with him since that time ? No. Did you see
this man, the middle of these three, (pointing to
Tom. Powers ?) I might have seen him; I don't
recollect, sir, at all. Are you acquainted with
Monk? No, sir, never saw him before that day•
to know who he was; I think I saw him there
that day, however. At what time, with reference
to the death of the prisoner, did you see him ? It
was previous to the death of the negro thatT saw
liim. At what time ? As I passed through the
market house first, when my intention was to go
up and see the trial. What was he doing then ?
He was talking with some persons there; I don't
know what he was talking about. Did you see
him in the crowd that were making the demon-
strations towards the prisoner. I think he was
in the crowd that was rather blocking up the way
by which the sheriff had to pass out; I wouldn't
like to swear positively that this was the case;
the reason that impression is on my mind is that
it was about there I saw him when I did see him;
I wouldn't like to state that I saw him there at
that time. Did you see any weapons ? No, sir.
No weapons up to that time ? No, sir. In the
possession of any body? No. What attracted
your attention next ? After they passed the arch ?
Yes ? My attention was next attracted by the re-
port of a pistol. Could you see the deceased at
the time the pistol fired? No, sir. Do you
know where he was, of your own knowledge, at
the time the pistol was fired ? I know where he
fell, sir, and where" he was lying when he
was dead. You do not know of your own
knowledge where he was standing at the
time the pistol was fired? No, sir. Well,
sir, did you see either of the prisoners here after
the firing and under what circumstances ? I saw
Capt. Tolar I may say immediately after the re-
port of the pistol, I don't think it could have ex-
eeeded two seconds. What attracted your at-
tention towards Capt. Tolar, and where was he ?
When I heard the report of the pistol, my eyes
w.ere turned in that direction, I saw Capt. Tolar
in front of the arch then. Well, sir, where was
he; how far from the arch, and in what position
with reference to the center of the arch? My
impression'is that he was nearly opposite the
center of the arch. With regard to the pavement
where was he standing? Near the center. Near
the center of the arch, and on the pavement 1
Yes, that is my impression. As you stopped iri
the middle aisle running from east to west and
looked back you saw smoke, drifted by the south-
ern wind, pass the arch, and within two seconds
you also saw Capt. Tolar? Yes, sir, I think
within two seconds. Opposite the center of the
arch and about the center of the pavement? Yes,
I think so. How far from Arcby should you
judge at the time you saw him ? Well, since my
subpoena as a witness here, I went to the place
and got Mr. Wemyss to point out the exact spot
where the negro lay after he was dead; and from
that spot, designated by Mr. Wemyss—and it
agrees with my own recollection of the spot—I
think it must have been at least ten feet. What
was his attitude at the time? Well, I only saw
him for an instant, and it would be hard to de-
scribe; I think he was in motion, and that his
motion was this:
(Making a half wheel forward and to the left.)
Did he turn his face from towards the deceas-
ed, or from an opposite direction ? From an op-
posite direction I thought, as if he were turning
his face inwards towards the market house and
rather towards the scene of action; he seemed as
though he had made the motion when I saw him.
And that motion would have carried his face
how ? In front of me and rather to my right.
Would it carry his face towards the spot where
the prisoner was lying, or in another direction?
Not exactly that spot, but rather in a direction
between where I was and the position the priso-
ner was in, at the time he was shot. As he turn-
ed would his eyes, if directly before him, have
looked to the right or left side of the arch, as he
went out ?—as I understand you, he was standing
at the southern side of the pavement ? He was
not standing at the time I saw him—I mean his
position was not stationary, I have tried to ex-
plain that when I saw him, and at the instant I
did see him his motion seemed to be this:—[De-
scribing again a half-wheel, forward and to the
left.] Which way was his face directed at the
movement he commenced making this half-wheel?
You must excuse me, I cannot explain it better
than by making the motion myself.
By Judge Advocate:
Was it to the north, south, or east or to the
north and west, or south and west, or in what
direction? Just the moment I.saw him, the mc- »
tion he made seemed to be this:—(standing up
and describing a half-wheel forward and to the
left, as before.) If he had stopped, his face
would have been south-west.
Judge Advocate: Looking towards Mr. Hins-
dale's corner ? Yes, sir.
By Counsel for accused: Which way was his
face directed when you saw him, at the moment
you first saw him ? At the very instant j. saw
him his face was fronting west, and he turned it
round to the south-west; the motion, when com-
pleted, would bring his face about looking to-
wards the,south-west. Then, if I understand it
aright from your description of it, he moved, as
you saw him, or was moving about forty-five de-
grees? Yes, sir. And that brought his face to-
wards the south-west and towards Mr. Hinsdale's
corner? Yes, sir. Could he.have seen the spot
where the deceased fell, with his eyes directed as
they were at the-time he stopped ? I can't say
about that, because his face was not fronting the
spot where the deceased.fell, at the instant I saw
CONVENED AT RALEIGH, NORTH CAROLINA.
239
liim. What was the height of the smoke as it
drifted past the arch ? I think the height of a
tall man's head. Did you see that before or af-
ter you saw Capt. Tolar ? Immediately before.
You saw Capt. Tolar about two seconds after;
how was he dressed ? I could not say, I never
notice a gentleman's dress. Did you notice any-
thing he held at the time ? My impression at
the time, sir, was that he had something in his
left hand. Do you know what it was ? I do not;
however, you must understand me, Mr. Battle,
that I only saw him for a second, and even if
my attention had been directed to him at the
time, I don't suppose my view of him could have
continued any longer than that, because you see
the crowd was pressing in. Were there any per-
sous to his left as you were looking at him—that
is, to what would have been his rear, looking to-
wards the place where prisoner fell; or was he
alone at that time ? No, sir, there were persons all
about him. Were they mostly to your right
or left, looking towards him? To my right.
What attracted your attention to Captain Tolar
particularly? I can't say. Was it an accident or
what ? I suppose it must have been an accident.
I simply recollect having seen him at the in-
stant. Was there anything particular in his man-
ner in the character of the movement that attrac-
ted you, or was it simply an accident- ? I suppose
simply an accident. Had you heard any thing in
the crowd as you passed through, that led you to
expect the killing of Archy Beebee ? Not at all,
Now, however, this thing I will say
that I did hear some party say, either in that
crowd or some where else, I don't recollect who
or where, that he deserved to be killed. You
did? -Yes, sir, I heard it said, but cannot say
who did say it, for I don't recollect. Was it
Captain Tolar? No, sir. Was it either one of
these defendants, (pointing to the accused) ? I
don't think it was, I can't say. Are you at all re-
lated to either of the defendants? Not at all.
Are you a particular friend to either of the de-
fendants ? I l^ope I am a friend to them all. I
mean, have you more than an ordinary friendship
for either of the defendants ? ■ My friendship for
Captain Tolar has always been of a very strong
character. Is there any peculiar tie between you
and Captain Tolar ? Yes,- sir. What is it? We
are both members of the same church, butwheth-
er we belong to the same -organization or not I
can't say. Are you a frequent visitor at his house
and he at yours ? No, sir, I may say however
that I have known him for many years, and from
his integrity as a gentleman and a christian I have
formed a very strong opinion of him; I never
visited his house except on one: occasion, and
that was in a case of affliction, and he never visi-
ted mine in his life. There is no particular inti-
macy then between you ? No, sir. Did you see
Sam Phillips on the day Archy Beebee was killed ?
I think I saw him in the crowd. Did anything
attract your attention to him ? No, sir. And
you think you saw him there ? I think I did.
Cross examinned by the Counsel for the pros-
ccution:
I understand you to say that you were standing
at Mr. Taylor's store at the time the ladies got in-
to the carriage ? Yes, sir. At the time they got
into the carriage you went forward with Mr. Tay-
lor to speak to them, to show them respect and
consideration? Yes, sir—now let me explain
some, at the time they were brought down to the
carriage, and handed in by the town officer, Mr.
Bond, and as soon as they were seated in the car-
riage, the mother of the young lady took her seat
in the carriage, next to Mr. Taylor's store. When
they were fairly seated in the carriage, Mrs.. Mas-
sey looked towards us very imploringly as I
thought, and I took it as a signal that she wanted
to speak to us. I mentioned this to Mr. Taylor
and we moved towards the carriage. I ought to
explain as I go, that she and her daughters are
members of the same church as I am. Well,
when I got to the carriage, Mrs. Massey says to
me) " Brother Cashwell, my troubles are more
than I can bear—brother pray for me."- While
she was speaking, the town officer, Mr. Bond
stepped up on the other side of the carriage and
told the driver to drive off. I understood you to
say you didn't see Robert Mitchell while you
were there? No, sir. Nor Tom Powers? No.'
Nor Captain Tolar ? No, sir, Mr. Bond was the
only one you saw besides yourself? Yes, sir.
Immediately after the carriage went away you
went through the crowd? Yes, sir. Have
you a distinct recollection that it was a
windy day; you say there was a fresh southerly
breeze ? I cannot say there was a fresh southern-
ly breeze ; the smoke of the pistol wafted from
the south and passed the pillar. There was
breeze enough to carry the smoke of the pistol
off as soon as it was fired? Yes, sir. I under-
stand you to say, Mr. Cashwell—I shall trouble
you with very few questions—that you were
standing under the market house when Archy
came down stairs in charge of the officer, and
you were standing there from the time he passed
through the arch until he was shot ? Yes, sir.
Just as he got from the arch and was passing
through, there was a demonstaation of assault,
.you don't know by whom ? No, sir. You think
there were efforts made to seize him ? Yes, sir.
And you saw two hands lifted in the position you
described? Yes, sir. Did you hear any expres-
sions that j*ou can speak of? No, sir. Could
you remember any, if they were repeated to you?
I don't think I could; my impression was that
there was a demand made for him. How many
minutes do you suppose between this time of the
demand and. the shooting of the pistol ? A very
short time, because they were hurrying him
along as fast as they could, and they only went,
from the point where they turned the arch, a few
paces, where he was shot. I want your best es-
timate of the time, do you suppose it was a full
minute" ? I don't think it could have exceeded a
-full minute. From the time he passed the arch
until he was shot? Yes, sir. Just before you
heard the pistol fire, did you hear any exclama-
tions at all ?■ No, sir, none more than a murmur-
ing noise. No cry of " kill him, shoot him," or
anything like that? No, sir. The. next thing
that attracted your attention was the firing of the
pistol? Yes. . You had seen Capt. Tolar before
that time ? Yes, sir, when I came from the car-
riage and entered under the arch of the market
house, I think he was just to my right, and prob-
ably near enough for our clothes to .have brush-
ed. Very near the center of the eastern arch?
Yes, 6ir, that is my impression. This crowd, at
the time of the apparent demonstration were sur-
rounding the prisoner, was it about the same
spot ? It was to the southward of where I saw
him. Were the limits of the crowd large enough
to extend it up to the center of the arch; was the
crowd large enough to spread itself that- far from
the southern edge of the arch up to the center?
I think the crowd would have filled that space.
And it extended outside and extended in, as I
understand? Yes, and up towards the center
of the arch. It took naturally a somewhat
circular form? Yes, sir. You didn't
see Captain Tolar at that time ? No,
sir. Not from the" time you' passed him un-
til the pistol had fired, and you saw him again on
the pavement ? No, sir. Within two seconds of
the time you heard this report, you saw Capt. To-
240
PROCEEDINGS OF A MILITARY COMMISSION,
lar, as you have described liim? Yes. The motion
was just about finished, was it ? Yes. Your im-
pression was that it was just the motion of a
man who had moved in a particular direction and
had stopped, who had just checked his move-
ment. Well, you see Ican'ttell; I didnotintend
convey that impression, I simply want to state
what I saw. His body was m motion when you
saw him? Yes. And it came to a stop at the
completion of the motion? I can't say that it
ever stopped there, it was but a momentary
glance. And you didn't see 1pm again? No.
Did you leave the crowd? Yes, sir, and after
awhile I went back on the other side of the mar-
ket house, I saw the negro as he was lying there
dead. You saw no one with any weapons that
day? If I did, I don't recollect; 1 couldn't state
distinctly that I did. This time you saw Captain
Tolar, it couldn't have exceeded two minutes
from the firing of the pistol ? I think not. And
the point you saw him at, was about ten feet
from where the nigger lay, or where you had the
position pointed out to you? Yes, sir. You say
your friendship is very strong for Captain Tolar,
you have a high appreciation of him as a man of
merit? Yes, sir. Are you a Mason? Yes, sir,
and let me say, here, Mr. Haywood, that my Ma-
sonic obligation does not oblige me to to testify
falsely, either in favor or against any man. I so
understand, sir, I shan't trouble you any longer.
At 1:40 P. M., on motion the Commission ad-
journed to meet on the 28th inst., at 11 A. M.
Raleigh, N. C., Aug. 28,1867,10 A. M.
The Commission met pusruant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and
approved.
Duncan J McAlister, a witness for the de-
fence having been first duly sworn, testified as
follows:
The Counsel for the accused stated" that this
witness was merely a character witness, but ow-
ing to the irregularity of the arrival of the wit-
uesses for the defence, and as Mr. McAlister was
in town, they would introduce him at this stage
of the trial, although his evidence properly came
at the close of the defence.
Examined by the Counsel for the accused.
What is your name ? Duncan J. McAlister.
What is your occupation ? Farming, sir. Where
do you reside ? Eleven miles north-east of Fay-
etteville, in Cumberland county. Do you know
John Armstrong, a freedman? Yes, sir. How
long have you known him ? Since he was a small
boy. Who did he formerly belong to? Mistress
Jeanett Armstrong. How far did he reside from
you ? As long as lie remained her property, until
he was nearly grown, about a mile. Do you know
of the general character of John Armstrong for
truth ? I know what his neighbors think of it.
That is it, sir, that makes general character;
what is that character for truth ? It is not good,
sir. How long have you known that general
character for truth ? As long as before he was
grown. How long has his character been, as you
say, not good for truth ? As long as about the
time he was grown.
Cross examination by the Counsel for the
prosecution:
You say, Mr. McAlister, that you have known
this boy Armstrong from the time he was born ?
Since he was a little boy. How old is he ? I
suppose between thirty-five and forty years of age.
Who did you say he belonged to ? Mrs. Jeanett
Armstrong. How far does she reside from Fayette-
ville ? About 12 miles. Is her plantation joining
yours ? No, sir. Were you exactly in the same
neighborhood ? About a mile. In the same di-
rection from Fayetteville ? Yes, sir. Is she liv-
ing or dead? She is dead. When did she die?
I think she died about twenty years ago. Has
John been living in that neighborhood since she
died ? After her death he moved to her son's
about four miles west of there. Have you known
him since he moved to the son's? Yes, sir. How
long did he live there at the son's ? Until they
were emancipated. What is that 6on's name?
F. C. Armstrong. You say during the whole
time you have known him, or since he has grown
to manhood, his character has been bad for truth?
Yes, sir. Did you ever hear his character for truth
called in question? Yes, sir, frequently. By
whom ? By the neighbors. Name some of them
if you please, sir. Neill S. Stewart, P. B. Mur-
phy, George McCoy, A. E. McCoy. Any others?
William Murphy. Can't you recollect any others
that you have heard speak of him in this respect ?
Geo. S. Gainey. You can name as many as you
can remember that you have heard speak of it.
John Pemberton, William McPhail, B. W. McAl-
ister; I don't know that I recollect any others in
particular. I understood you to say you have
heard all these gentlemen express their opinion
with regard to this man Armstrong's character
for truth? Yes, sir. Did you hear them express
their opinions at the same time or at different
times ? Different times. When was it that you
heard Neill Stewart speak of his character for
truth ? That was during the last year. How long
ago, sir ? I should suppose some six months; I
dont recollect it exactly. Was it since the killing
of Arcby Beebee ? No, sir, I think it was before.
What did he say ? He spoke of him as having
sworn to things, how impressed upon the admin-
istrator of F. C Armstrong's estate had been, the
false statement he had made, he was speaking of
his producing an account against his former mas-
ter F. C. Armstrong. Ana said in that connec-
tion that he had sworn to a lie about it ? Yes,
sir, he had spoken about his general character,
how hard it was that the estate should be defraud-
ed by him. Is F. C. Armstrong dead sir ? Yes,
sir. Did he die before this man Armstrong was
emancipated ? No, sir, his son died first, he was
the lawful owner of the negro, I think. He was
living at the time he was emancipated, with F. C.
Armstrong ? Yes, sir. He died since the war
wasended? Yes.sir. He lived with his son for a
while, did he ? Yes, sir. Whose estate was it in
connection with that Neill Stewart was speaking ?
F. C. Armstrong's estate. That was since his
emancipation? Yes, sir. Was Neill Stewart the
administrator of the estate? No, sir. What
connection did he have with it ? He was an heir.
He was next of kin ? Yes, sir. He said the boy
Armstrong had raised an unfair account against
the estate, which diminished the share coming to>
the next of kin. Yes, sir. When did D. B. Mur-
phy speak of it? It was before and since the
emancipation. You heard him speak of it twice ?
I don't know how many times. At least twice ?
Yes, sir. The first time what was the nature of the
conversation? It was about stealing cattle or
killing cattle in the woods, and laying it on oth-
ers. What was said substantially; I don't ex-
pect you to remember every word he said ? He
said they could prove anything by this John
Armstrong; there was no use to prosecute them,
that they could prove by John Armstrong-
any thing they wanted to. That was before
the emancipation? Yes, sir. How long be-
fore? Sometime; it was during the war.. Who
CONVENED AT RALEIGlt, NORTH CAROLINA.
241
was accused of stealing cattle? Armstrong's
negroes. And you heard Murphy say that there
was no use in prosecuting them, that John Arm-
strong would swear to anything ? Yes, sir. Was
he a witness in the business ? I don't know that
they took out any process against them, but he
said he would be made a witness. Whose cattle
was it that were missing, or had been injured ? I
don't recollect at that time whose they were, it
was so often the case. Were they any cattle of
Mr. Murphy's ? I rather think they were Mc-
Phail's. Had he lost any cattle about that time?
I don't think he had. You say you heard him
talking of him again, since his emancipation ?
Yes, sir. What was that? That was regarding a
mule. What regarding it ? When Sherman's
army passed t hrough, his stock of horses and mules
wa3 taken off. Murphy's stock ? Yes, sir. And he
was informed where one of them was; and he got
it back; he applied to the commander of the post
in Fayetteville, and he got' the mule back, and
Armstrong volunteered his services to swear that
it wasn't Murphy's mule Who did he volunteer
his services to ? The negro that had him in his
possession. Murphy told you that or did you
know that? Murphy told me that. What did
he say of him in that connection ? He spoke of
'it. It was no doubt his mule ? Yes, sir, they
gave it up to him, he proved it by a good many
J persons, and the commander gave it up to him.
!s that about all you have heard Murphy
say of him ? They are the only circumstances
that I can recollect of. When did George McCoy
speak of this man's character? Well, I heard
him speak of him frequently, George McCoy ac-
ted as Deputy Sheriff in that county for a long
while. Did Mr. Murphy live in the same neigh-
borhood with Armstrong. Yes, sir. Did Stew-
art live in the same neighborhood ? He lives
some thirteen miles off, but he was frequently at
his father-in-law's. He was a son in law of F. C.
Armstrong? Yes, sir. George McCoy, did he
live in that neighborhood? Yes,' sir, all the bal-
ance live immediately in that neighborhood ex-
cept John Pemberton. When did you hear Geo.
McCoy speak of him ? He was acting as an offi-1
cer; T don't recollect any specific time; whenev-
er he had any precept against the people in that
neighborhood for misdemeanors, and the name of
Armstrong would be brought up, he would speak
of it1 as unworthy of credit. You say he was Dep-
uty Sheriff some time? Yes, sir. "That was be-
fore the murder of Beebee or since ? That was
before. You have never heard him speak of him
since? No, sir. A. E. McCoy, where was it you
heard him speak of him ? It was during the same
time mostly during the war—people in that neigh-
borhood suffered a great deal—there was a great
deal of stock in this section and there was always
more or less complaint about its being killed.
What did McCoy have to say about John ? He
represented him as being, he thought, the ring-
leader of the gang that was destroying the stock.
Did he say anything about his truth ? Yes, sir,
that he believed he would swear to any thing.
When was it you heard William Murphy speak of
him ? That was since this took place, I don't
know how long it has been since the thing occur-
red, it hasn't been a great while. Since the 11th
of February last ? Yes, sir. I don't want to hear
it then; have you heard John S. Gainey speak of
him? Yes, sir, frequently. Was that before this
murder, or since ? I have not heard him since.
What did he have to say ? He said he was not to
be believed on oath. What was the conversa-
tion about? In every instance I have men-
tioned, it Was about the loss of 6tock. That
■was during the war? Yes, sir, and some
since the war, but principally during the war.
As I understand, in connection with the loss
of stock in that neighborhood ? Yes, sir. These
men spoke of John Armstrong aS being ready
to testify for any body ? Yes, sir, since the Avar
some of them have spoken of him in the same
capacity. John Pemberton, where does he
live? In Fayetteville, sir. You say you have
heard him speak of Armstrong? Yes," sir.
When ? That was since this trial commenced.
I don't want that—did you ever hear him speak
of him before this trial? No, sir. William J.
McPhail, when did you ever hear him speak of
it ? It was previous to the trial. Was it previ-
ons to the death of Beebee ? Yes, sir, and I
might have heard him speak of him since. I
want what he said before? The conversation I
have had with him was previous to this trial; I
don't recollect the time Beebee was killed,
I think it was before Beebee was killed, yes,
sir, it was; the last time I heard him speak of it
" was during the trial of that mule of Murphy's.
Did John swear in that trial ? I don't know, sir,
whether he did or not; they took witnesses there
to prove before the Commander of the post his
character, but what was done, I don't know.
Did you hear McPhail say he had sworn falsely
on that trial? I heard him say he proffered to
do it. You didn't hear him say he had done it ?
No, sir. And he then spoke of his character as
being bad for truth? Yes, sir. When did you
hear W. B. McAlister speak of it? That was
about the time of Murphy's mule; that brought
more of them together than at any one time I re-
collect. Were those men speaking about the
same time. Murphy and McPhail and McAlister?
Yes, sir. It was in the same conversation ? Not
exactly, they were not all there; I don't recol-
lect which ones it was, just about that time.
Now, sir, I understand you; in one instance you
heard Neill Stewart say he had sworn to a lie ?
Yes, sir. About raising an account against an
estate in which he was interested? Yes, sir, if I
said he had sworn to it—1 would not be positive
to his having sworn to it, he made out the ac<-
count and proffered to do it or did do it, I won't
say which, at any rate he got the account. I
want to know if any of these men said they had
known him to sAvear to a lie ? I wouldn't say
that I did hear either one of them say he had
sworn to a lie. You say they spoke of him as
having the reputation of a lying witness in mat-
ters in which he was interested, and that they
spoke of his character for truth as being bad ?
Yes, sir. These speeches about his character
occurred before he was emancipated? Yes, sir.
You were not in Fayetteville the day Arehy Bee-
bee was killed ? No, sir, I was not there. HoaV
came you to be a witness in this case ? I don't
know, sir, unless it was that I am acting magis-
trate in the district in which Armstrong used to
live. Are you now a magistrate? Yes, sir.
You don't know at whose suggestion you are
summoned? No, sir. It vvas not your own?
No, sir.
Re-direct examination by the Counsel for the
accused:
I understand you to say the boy's character you
have heard canvassed and talked about a good deal
m the neighborhood ? Yes, sir. And that the
persons you have heard talking about it, both
before and since this killing, all give him a bad
character for truth ? They do, sir. You spoke
of Mr. George McCoy as having been a deputy
sheriff in that neighborhood: you also spoke of
having heard McPhail speak of his character, was
Mr. Phail an officer in his county ? He has acted,
as an officer, and he is justice of the peace. And
all these persons that you have named, together
with other persons that you haven't named, they
PROCEEDINGS OF A MILITARY COMMISSION,
declare his character for truth to be bad ? Yes,
sir. I will ask you the question, sir, whether
you have ever heard a single one ot the neighbors
around there, who knew him say that his character
Was good ? No, sir, I never heard any one say it.
And that in consequence of cattle stealing, and
other things that you have heard of in which he
has either been or proffered to be a witness, that
"his character has been questioned a great deal ?
Yes, sir. And that his general character for truth
is very bad? Yes, sir.
Question by the Commission:
Mr. McAlister, you spoke of Armstrong's hav-
ing committed some depredation : stealing cattle
and so on, why was he not arrested ? I say it was
committed in that neighborhood, and it was sup-
posed that he was concerned. Didn't you say
that these parties said he was concerned ? 1 said
they thought him to be. If they believed him to
be why was he not arrested ? They never could
get the proof, that was one reason what brought
out so much about it. Was it expected that
Armstrong would swear falsely in his own case ?
They thought he would swear falsely for any per-
son. If Armstrong had been arrested would he
have been a witness in his own case ? No, sir.
Was it a common thing in your neighborhood to
allow such depredations as these you have spoken
,of, stealing cattle and so on, to go on without
making any effort to arrest the parties committing
those depredations ? It was not, but they never
proved successful in that neighborhood. Do you
know any thing of John Armstrong's acts of your
own personal knowledge? No, sir, 1 don't; let
me correct myself in one instance: he came to
me, speaking of what Neill Stewart said about
him, he came to me to know from me, to get
some advice if he could not make his master dis-
count something for waiting on him after the
emancipation; he told me he had bought some
cattle or hogs, I forget which, from him and he
"was to pay a certain amount in greenbacks, or a
certain amount in specie; he had waited on him
and had tendered him a certain amount in green-
backs, and he did not have the specie, and he
wanted to know if he could not make him take
it; that went somewhat to confirm my opinion in
what Neill Stewart told me that he had brought
out this account against the estate. This con-
versation you had with him tended to make you
believe what Neill Stewart told you about his
character for truth ? Yes, sir. During the war
did you know whether there were any "deserters
from the rebel army living in your neighborhood
in the woods ? I know there were. Do you
know whether those men ever did such things as
steal cattle or hogs? I know that they did; I
have a good reason to believe they did. Would
you believe the testimony of a negro in any way,
on any important occasion ? Of this' negro.
Of any negro? Yes, sir, I know some negroes
that I would believe as quick as most white men.
Would you believe the testimony of negroes or-
dinarily—give it the same belief that you would
to the testimony of white witnesses ? No, sir.
The Judge Advocate:
If the Court please:—I have to lay before the
Commission an affidavit, made on yesterday, by
William J. Tolar, one of the defendants in this
cause, asking that a man, by the name of Griffin
Chance residing in Fayetteville, be summoned in
this case.
The affidavit states that he expects to prove by
eaid Chance that he William J. Tolar, did not
fire the pistol shot which killed Archy Beebee.
I will state to the Commission that this man
Griffin Chance was summoned by the prosecution
upon having been informed that he knew someth-
ing material to this cause, and upon examination
be knew nothing material to it, and he was dis-
charged. If the Conrt orders him to be summon-
ed, it will be done of course. I think it necessary
to tell the conrt that there have been already
thirty-five witnesses summoned on behalf of the
defence.
The Commission asked if there had been any
communication with Griffin Chance since that ex-
animation.
The Judge Advocate said there had been none
on the part of the prosecution.
The Counsel for the accused:
I have to state that the information we have is
such as is set forth in the affidavit. I understood
the Court rule, not long since, that no other
witness would be summoned for the defence, un-
less an affidavit was made that their testimony was
material, and unless it was shown to the Court,
in an affidavit what it was expected to prove,
with the affidavit. That affidavit has been made,
and I suggest that the only answer that can be
made to the affidavit, is by a counter affidavit.
The statement the Judge Advocate has made,
and I know very well he does not intend it—in
the presence of the Court, is well calculated to
prejudice the minds of the Court, against the
witness, when he comes in. Mr. Tolar has sworn
to that affidavit. He has that information, and
he has that belief. , ^
The Judge Advocate: -.j "
I was compelled to make this statement, in
reference to this fact, as the Court did not at all
understand the fact, in reference to the list of
witnesses they ordered summoned. At the time
they made the ruling you spoke of, they under-
stood that list of witnesses to contain the names
of all the witnesses summoned for the defence in
the case from first to last, whereas, in fact, it con-
tained but a little more than one-half.
The matter is entirely in the discretion of the
Court. I lay it before the Court for them to de-
cide.
The Commission was cleared for deliberation,
and after some time so spent, the doors were re-
opened, and the Judge Advocate made the lollow-
ing announcement: '
The Commission orders that the witness Grif-
fin Chance, be summoned.
The Counsel for the accused:
In order to set this matter at rest, I desire to
make a statement to the Court, that the testi-
mony for the defence depends in a very great
measure upon what testimony is brought out for
the prosecution; and until the prosecution was
closed it was impossible, utterly impossible for
us to know what witnesses it was necessary for
us to summon, to meet the case made by the
prosecution. Therefore, at the time I handed the
list of eighteen witnesses to the Judge Advocate,
it was a week before the case closed, for the pros-
ecution—it was impossible for me to know what
witness I required, or whether I required more
witnesses or not.
I will state to the Court that I am just as much
averse to bringing witnesses here to testify to
nothing material, as any member of the Court, or
the Judge Advocate, I want to make no unneces-
sary expense about this matter, and we only ask
to have the witnesses summoned which we be-
lieve to be material; and if they are not sum-
moned we will have to bring them here ourselves
and pay them out of a very scanty purse.
Gukdon S. Demming, a witness for the defence,
having been first duly sworn, testified as fol-
lows: ,,
Examined by the Counsel for the accused:
What is your name ? Gurdon S.« Demming.
Where do you reside ? In Fayetteville, N. C.
How long have you resided in Fayetteville?
CONVENED AT RALEIGH, NORTH CAROLINA.
243
is always considered my liome; I have been there
lor the past fifteen years now; I was away some
ten or twelve years before that, most of the time,
I have been back for the last fifteen years. Where
is your place of business, Mr. Demming, in Fay-
etteville ? At Mr. Davis'. Which Davis ? I. B.
Davis, the tinner. Where is that situated, what
part of Fayetteville ? On the south-east coiner
of Market Square. Were you in Fayetteville on
the day Archy Beebee was killed ? I was, sir.
Where were you at the time Archy Beebee was
killed ? I was in Mr. Davis' shop, sir, the second
story. Did you see Archy Beebee when he was
carried up from the guard house to the market
house? I did, sir. Did you go to the market house
while Beebee was up stairs ? I did, sir. Did you
go up stairs? No, sir. How long after Beebee
was carried up stairs before you went to the mar-
ket house ? I don't know that I could state.
Was it a short time ? I don't think it was more
than three quarters of an hour, I don't recollect
very distictly about the time, I was busy myself.
Did you go up stairs where this trial was going
on ? No, sir. How long did you remain at the
market house ? Only a tew moments, the doors
were closed and I went back to my business. In
what business were you engaged at that time ?
Packing furs. In the second story of L B. Da-
vis'tin shop? Yes,sir. Were you engaged in
your business in the front or the rear of the shop?
In the front part. Were you near a window or
door, or any opening ? There were two windows
within ten or twelve feet of me. Which way did
those windows look, Mr. Demming ? Towards
the west and north. Did you see Archy Beebee
when he was brought down from up stairs ? I
didn't see him, sir, until he was recovering from
the fall which he had there. What fall ? He fell
down I suppose, he was getting up when my at-
tention was first called to him. Where was he
at that time ? He was near the center of the mar-
ket house, 6ir. On the pavement, or off the pave-
ment? On the pavement. Near what corner?
The south-east corner. You saw him just as he
was recovering himself from- the fall ? Yes, sir;
it looked like he was recovering when I first no-
ticed him. You then saw him out of the window?
Yes, sir. Was the window raised? Yes, sir, it
was hoisted. Were you standing in the window?
I was not, I was standing a few feet back, Were
you looking at Archy Beebee at the time he re-
covered himself? Hearing a little disturbance I
just stepped a few steps toward the window, and
looked out. Just state what that disturbance
was that attracted your attention. There was a
little noise, some talk, &c.; just loud enough to
attract my attention that way at that time. And
you then looked out of the window? Yes, sir.
And you saw Archy Beebee, as it were, just re-
covering himself from what appeared to you to
have been a fall ? Yes, sir. What occurred after
that time ? Well, sir, about the time he got
straightened up, the pistol went off, and he fell,
I don't think he had hardly got his position for
more than a second before the pistol went off.
Was there more than one pistol shot fired there
on that occasion ? I could not distinguish more
than one from the report. Did you see that pis-
tol ? I did, sir. Did you see the hand that held
that pistol? I could not say whose hand held it.
Did you see any hand holding it? I don't know
that I could say positively that I saw the hand
that held the pistol. Did you see the pistol which
was fired? Yes, sir. Did you see the flash ? Yes,
sir, I saw the smoke. And heard the report ?
Yes, sir. Well, sir, at the time you saw that pis-
tol fired, where was Beebee standing? He was
standing near the south-east comer of the mar-
ket. On the pavement or off? He was on the
pavement, sir. Was he nearer to the market
bouse, nearer to the center or nearer the outer
edge of the pavement ? I should think he was
about midway as near as I could judge. In which
direction was his face ? I don't know that I can,
say positively, about that time he made a remark
as well as I recollect to some one, " quit pulling
me," or "let me loose," or something of that
kind; I think his face was turned a little one
way or the other, and I could not say which way,
whether it was towards Sheriff Hardie, or to-
wards the crowd, which appeared to be rather
behind him, and to the left. At that time you
think his face was turning a little from the
straight-forward from the way he was marching ?
Yes, sir. But whether it was turned to his right
or left, you do not know ? No, sir. Where was
the pistol which you saw, and which fired
upon him? It looked to me about two feet
and a half from his head, rather on his left and
to his rear. You mean the muzzle of the pistol
was fired that near? Yes, sir. Did you see any
thing of a crowd around him at that time ? Yes,
sir, there was something of a crowd there.
Which way was the heaviest, thickest portion of
the crowd? Behind him, rather. Djjectly be-
hind him ? Rather behind him, there was a good
many standing near the edge of the pavement.
It was behind him, on the pavement, back to-
wards the main eastern arch? Yes, sir. How
thick was the crowd in that direction? The}'
seemed to be pretty compact, I could not say how
many persons were in it. Were they still or
were they in motion? In motion, sir. It was
a compact crowd in motion ? Yes, sir. Stand-
ing there how near Beebee? So far as I could
see and if my recollection serves me it was some
ten feet from Beebee to the arch, and it appeared
to be mostly between him and the arch. The
crowd was standing back, you say, some ten feet
upon the pavement. Yes, sir. How near to Bee-
bee did the crowd come up ? They appeared to
be very close to him. How close? I think
there were some as close as two or three feet to
the rear of Beebee, ten feet back there was a
dense crowd in motion. So the pistol fired very
near the inner line of the crowd—nearest to Bee-
bee, or was it fired from some other portion of
the crowd ? It looked to me like the pistol was
almost two feet and a half from his head, the
muzzle of the pistol. Was that distance as near
as the crowd were, on that side of him to the
man ? I think the policemen were keeping the
crowd hack, some one of then raised his club
about the time the pistol fired, which probably
kept them back. Mr. Demming, who fired that
pistol ? I can't say, sir, who did it.
You can't say who fired it? No, sir. Did
you see the hand? I saw the pistol, but I
don't know know that I could say that I saw the
hand, I think, as near as my recollection serves
me, I just got a glance, and I noticed the barrel
of the pistol. And you say you swear you can't
say who it was that fired ? I can't say who fired
it. Did you see any thing of Capt. Tolar there
that day ? I saw dim there that day. What time
aid you see him there ? It was some moments
after the pistol was fired, I went down stairs, and
went where the man Beebee was laying, I saw
Capt. Tolar after that. Where was he? He was
standing under the arch of the market house,
some eight or ten feet probably under the porch
like. When you went down stairs did you go
out of the front door? I went out of thesido
door, the first door next to the stairs. Which
way does that door open ? It open out upon the
west side of the building, the stairs come right
down to the door—I got out of that as quick as I
could after the pistol was fired. Did you see any-
2U
PROCEEDINGS OF A MILITARY COMMISSION,
thing of I. B. Davis about there that day ? I did
sir. When did you see him, and where did you
see him ? I saw him as I went down stairs.
Where was he ? He stood on the walk between
the corner of his 6tore and the market, probably
about one third of the distance between the mar-
ket and the corner of his store. He was standing
there a few moments after the pistol fired, when
you came down stairs ? Yes, sir. And you pass-
ed him there? Yes, sir, How long did you re-
main in the crowd ? Not exceeding half a min-
nte. Where did you go then? I just stepped to
the center of the street like, and went back to
my business in a few moments. Did you pass
Mr. Davis there when you returued ? I think I
did sir. You think you passed him standing about
the same place. I think he remained in the same
place when I went back. Did you see Capt. To-
lar at all, before the pistol shot fired, during the
entire day? I don't know that I saw him previous
to the firing of the pistol. Did you see Sam Phil-
lips that day ? I did sir. Where did you see
him? I might have seen him there during the
day a half a dozen times, but I don't have any re-
collection of seeing him until after the pistol fired
in the crowd. Where was he in the crowd, what
point ? When I first saw him I think about ten
or twelve feet from where Beebee was lying. Did
you see any body that you could recognize, with
any weapou that day ? I don't know that I saw
any person have a weapon that dhy, I don't recol-
lect seeing any. Was the pistol which you saw
fired, the only weapon you saw there that day ?
As near as I can recollect, it was the only weapon
I saw at all, Mr. Demming, do you know wheth-
er Robert M. Orrel was Captain of 1 he local po-
lice, in July, 1865 ? I think he was, sir. Do you
know whether he was or not.
The Counsel for the prosecution objected.
If the Court pleases—if Captain Orrell held a
commission or appointment under the military
authorities, there must be some written evidence
of it in existence somewhere. It wont do to prove
it by bare hearsay, or by the fact that he was act-
ing as an officer.
The Commissiou said the same questions were
allowed in a former examination.
The Counsel for the accused:
We cannot speak as to whether he was right-
fully an officer or not. I think in the State of
North Carolina we have had it decided often that
you may prove the fact that a man is acting as
an officer—either a judge, a justice of the peace, a
sheriff, or a constable or any officer. The judge,
the justice of the peace are certainly officers with
commissions. There is a record of the election
of the sheriff and his bond is recorded; there is a
record of the appointment of the constable and
his bond is filed of record. There is nothing
more common, in the practice of North Carolina
than to prove the fact that a particular dfficer was
acting as such at the time. Indeed, sir, it occurs
to me now, where there is a charge of biganiy, a
criminal charge, which, in former times, went to
a man's life, it was sufficient, amply sufficient, to
show that the person who solemnized the rights
of matrimony, was acting as a justice of the
peace, no proof of his commission was everrequir-
ed, nor was it ever suggested, or was it ever re-
quired that his commission should be produced.
All that we desire to do, in this case,' is to prove
by the witness as a fact that Robert M. Orrell
was at that time acting as captain of the local po-
lice. We think it is clearly admissible.
Counsel for the prosecution:
I object to it on another ground also, that the
testimony is not at all relevant. It cannot have
any possible bearing in this casewhether Orrell was
an acting officer or noC And. besides, the gen¬
tleman does not state the whole legal position*
There are certain cases, where to prove that a man
was acting as an officer i3 sufficient, while in other
cases it is necessary to prove the fact of his ap-
pointment. I shall not attempt to draw the line
between the two, not being prepared to do so to
my satisfaction—and regarding as unnecessary
to do so—at present. But the analogy of the
judge, governor, &c., adduced by brother Fuller,
is no analogy at all. The only object for which
this evidence can be offered, is to justify Mr. Orrell
in a certain course of conduct that he pursued
towards a negro man; and what it can have to do
with this case I can't see. When a man attempts
to justify himself, on the ground that he is an
officer, that is one of the cases in which he is
bound to show his commission.
The Counsel for the accused:
May it please the Court. The Counsel for the
prosecution, we apprehend, has not stated the
object of this examination correctly. He will
very well remember that he attacked Mr. Davis'
testimony very much at length, upon this point,
as to whether Orrell acted as an officer of thepo-
lice, or as to whether he was acting as a magis-
trate. He questioned him very closely upon that,
he attacked his credit upon that. Mr. Davis ia-
formed the gentleman, upon his cross, examina-
tion, that he had an order some where, under
which he acted, in tying up a certain witness,
who had been summoned for the prosecution, by
the thumbs—one John Shaw, if I recollect the
name rightly. Mr. Haywood challenged him to
produce', such an order, and he intimated very
plainly to the witness, that he did not believe
such an order ever existed. He warranted he
could have it produced and brought here, if Mr:
Davis would tell him that it was at his house. We
now offer to prove in vindication of the character
of this witness of ours, who was attacked in this
way, that there was such an order, purporting to
come from a man who was filling the position of
Captaiu of local police; whether he was rightful-
ly so or not is a different question, but as far as
the credit of this witness is concerned, all that
we are interested in is to show that Mr. Orrell
was acting in this capacity, and that this paper
was issued, under which Mr. Davis inflicted this
, punishment. We now ask Mr. Demming the wit-
ness on the stand, whether Mr. Orrell was'acting in
that capieity ; we then offer to prove the hand-,
writing of Mr. Orrell, and to show that we have
the order, the production of which was challen-
ged by the Counsel for the prosecution; and it
seems to me, in common fairness to the witness,
whose credit is attacked, and according to the
practice in every court, as far as my experience
goes, we should be allowed to show these facts,
in vindication of the character of the witness in-
troduced. He is squarely attacked, fairely at-
tacked by the Counsel for the prosecution, and
we here offer to show that, in that matter, in
which the Counsel may have thought he was en-
tirely right, the witness was right, and the Coun-
sel for the prosecution wrong.
The Commission was cleared for deliberation,
and after some time so spent the door was reopen-
ed, and the Judge Advocate said:
The Commission sustains the objection of the
Counsel for the prosecution, to the question. The
Commission does not understand that the charac-
ter of witness I. B. Davis was impeached, on this
point.
Direct examination resumed by the Counsel for
the accused.
Mr. Demming, are you acquainted with the hand*
writing of Robert M. Orrell ? I am sir. Look at
that paper, and tell whether that is the hand-
writing of Robert M. Orrell ? I should say it
CONVENED AT KALEIGII, NOKTH CAROLINA.
was. Is it altogether in liis hand-writing sir?
Some of it is Signed by him ? I would say that
is his signature.
The Counsel for the accused: '
May it please the Court:—I propose to read an
order, directed to Ichabod B. Davis, signed by
Kobert M. Orrell, dated July 20, '65 commanding
I. B. Davis to tie up by the thumbs, Stewart Mc-
Intyre, and John Shaw, for sheep stealing. I pro-
pose sir, having proved the handwriting, to read
an order to that purport to the Court.
Counsel for the prosecution.
For what purpose is it introduced ?
The Counsel for the accused :
For the purpose of corroborating Ichabod B.
Davis.
The Counsel for the prosecution :
Now, if the Court please:—It is palpable an
instance has arisen to show to the Court how
dangerous it is to depart, in the least degree,
from the strict rules of evidence.
It is proposed by the Counsel for the defence,
to introduce that written paper to corroborate
one of their witnesses. The history of this case
will show, that one John Shaw, a witness for the
prosecution, while on the stand, was asked
whether he had not been tied up by the thumbs,
by order of Capt. Orrell, or somebody else, for
sheep stealing, or some other offence." What his
reply was I don't remember, nor is it maternA
I think the witness partially denied, and partian
ly admitted it. He was a witness for the prosecu-
tion; he was asked—on the cross examination with
a view to discrediting him—if he hadn't been sub-
jected to that punishment tor that particular of-
fence? He answered—whether he confessed or de-
nied, is not material. Then the thing was at an
end. The defence asked him that collateral ques-
tion upon the cross examination; his answer was
final, and they can not'introduce other testimo-
ny to show that he said falsely with regard to it,
or that he said truly with regard to it. A wit
ness for the defence is introduced here by the name
of Davis, and is asked certain questions, and
among them whether he inflicted this punish-
ment upon the negro man Shaw. We ought to
have objected then and there to Davis' testifying
on this subject at all, because Shaw's answer was
final upon that point, and Davis's evidence was
only relevant, if relevant in the most remote de-
gree, for the purpose of showing that Shaw had
lied in his reply, to the Court. Now, it is pro
posed to go a step further still, not simply to
show that the witness has lied, but to show that
the witness who was introduced for the purpose
of showing that Shaw had made a false statement
of the fact—was speaking the truth. All this
grows out of departing from the strict rules of
evidence.
When a question of the character that the
Counsel addressed to Shaw, is propounded,
the rules are plain—a witness's general char-
acter for truth may be impugned by
general evidence ; you cannot ask for specific
instances of misconduct. That is the rule. In
examining as to general character they could in-
troduce a witness here who could speak as to the
general character of one of our witnesses, but he
could not give evidence as to specific acts of mis-
conduct, because a man does not come prepared
to defend himself from all specific acts of mis-
conduct, which may be alleged against him; but
when the witness is on the stand himself, he can
be impeached by showing specific acts of mis-
conduct, by his own admissions on the stand.
A witness may be impeached by showing
that his general character is bad, but the im-
peaching witness is confined to general facts,
be cannot give specific acts. While a witness
impeached is on the stand he may be cross-exam-
iued as to these specific acts; why ? because the
same objections do not apply to his response given
to them, which would apply to the evidence of an-
other witness on the same points, to wit, that it
would branch out into innumerable collateral
issues. Wny, again? because by a rule of law the
impeaehed witness' answer is final. Shaw was in-
troduced here and examined, and upon the cross
examination said,'either he had been hung up by
the thumbs, or he had not, by an order from Mr.
Orrel. I say his answer to that question was final.
Although that was the case, we al. o wed the defencc
to^examine their witness, and ourselves extended
the examination somewhat, to show what did actu-
ally happen with respect to Orrel and Shaw. That
was wrong;' and now they propose to go a step
further, and confirm that witness by introducing
independent evidence to show that Orrel had the
power to give that order. Now if the Court will
pardon me for a moment; and I think we actual-
ly gain time by making these matters clear at
first—upon impeaching a witness, Mr. Starkie
says, page 207: " The credit of a witness may be
impeached, either by cross examination, subject
tip the rules already mentioned or by general evi-
tlence affecting his credit, or by evidence that he
has before done or said that which is inconsistent
with his evidence on the trial; or lastly by con-
trary evidence as to the facts themselves. It is
perfectly well settled that the credit of a witness
can be impeached by general evidence only, and
not by particular facts, not relevant to the issue,
for this would cause the inquiry, which ought to
be simple, and confined to the matters in issue, to
branch out into an indefinite number of issues.
The characters, not only of the witnesses in the
principal cause, but ot every one of the impeach-
ing collateral witnesses might be impeached by
separate charges and loaded with such an accu-
mulated burthen of collateral proof that the ad-
ministration of justice would become impracti-
cable. Besides this, no man could come prepar-
ed to defend himself against charges which might
thus be brought against him without previous
notice; and though every man may be supposed
to be capable of defending his general character,
he cannot be prepared to defend himself against
particular charges, of which he has no previous
notice. Questions put to a witness himself upon
cross examination are not, it may be observed,
open to this objection since his answeer is conclu-
sive as to all collateral matters."
Here we have the collateral issue, as to whether
Shaw had been tied up by the thumbs for sheep-
stealing or any other offence. Shaw was asked
the question upon cross examination, and he said
either that he had been or that he had not been;
his answer being given it was final, and evidence
cannot be adduced here to contradict him—ought
not have been introduced in the case of Davis,—
but cannot certainly be introduced for the pur-
pose of sustaining Davis.
I do trust that the gentlemen will not insist
upon raising questions of this kind to consume
valuable time unnecessarily.
The Counsel for the accused:
I have no disposition to consume the time. I
leave the matter entirely with the Court.
On the re-opening of the Court the Judge Ad-
vocate declared that the Commission sustains the
objection of the Counsel for the prosecution.
Counsel for accused: Take the vytness, sir.
Cross examined by Counsel for prosecution:
We have been discussing matters so far rcmov-
ed from your testimony, Mr.Demming, that I shall
refresh your memory with what you have said.
You say, you have been living in Fayetteville
for fifteen or sixteen-years? Yes, sir. "That you
PROCEEDINGS OF A MILITARY COMMISSION,
were there on the day Archy Beebee was killed,
and in the second story of Ichabod B. Davis'
store, and packing furs? Yes, sir. Did you say
there were two windows in the room you were in;
i i it a large room ? More thau two; it is a room
of 20 by ao feet. You Bpoke of windows to the
north and west, do you mean one on the north
iront and the other ou the west front of the house?
Yes, sir. These windows were up? Yes, sir.
Was it a cold day or not? I don't remember.
You went to the market house while Beebee was
tip stairs ? Yes, sir. For the purpose of hearing
the trial? Yes, sir. And when you found you
couldn't be admitted you returned home ? Yes,
sir. When you passed over to the market house
that time how many persons constituted the
crowd do you suppose; I mean taking tbo e on
the inside and outside on the east end ? I noticed
very little about it, sir. But we want your best
estimate? Well, about probably twenty-five or
thirty. Inside and out? Yes. Were the greater
portion underneath the market house or outside ?
About an equal division. Did you see any one in
the crowd that you recognized ? I don't know
that I can recollect, any one particularly. Have
you endeavored to refresh your memory?, Not
much. Well, you try and remember? I don't
think I can. Neither when you passed going
through the market nor when you passed coming
back; you weut inside, I suppose ? No, I did not.
Did not you go to the arch? No, I didn't go
to that side at all. Where did you go ?
Well, the arch is on the end; it was to the
side I went. You went on the south of the
market bouse; then you didn't go inside?
No, sir. You didn't pass through the crowd at
all then? No, sir, I saw they wouldn't let any
body up and I went back to my business. How
long after you got back was your attention called
by the noise? I don't know exactly. You must
estimate whenever you can't speak positively ?
It was probably three quarters of an hour, more or
less. After you returned? Yes, sir. You went
to the market house shortly after Archy was car-
riage there? Yes, sir. And three-quarters of an
hour after you returned from there the killing oc-
curred ? Yes, that was about it. Were both win-
dowsopen? Yes, sir. What was the noise ?
Well, loud talking, and-so-forth. Did you hear
any such cry as " kill him," " shoot him," or any
thing of that kind ? I don't know that I did—I
dont think I did. There was some noise howev-
er that attracted your attention? Yes, sir, the
first thing that attracted my attention was the
ladies going to the carriage. How far was the
point where you were working, from these two
windows ? About six or eight feet probably.
Your attention was first attracted by Mrs. and
MissMasseygoing to the carriage? Yes, sir.
Was there any noise particularly at that time ?
No, not much. Can you remember what attract-
ted your attention ? No, sir, I don't know, but
when they went off I went back counting my
furs. Did you go up to the window when they
went into the carriage ? I think so. To the
north window or the west ? To the north. You
could see any body go to the carriage then ? Yes
sir. Do you remember who it was that went ? I
was not paying particular attention—I don't re-
member over half a dozen perhaps. Well sir, who
were they? There was Mr. Bond and Mr. Tay-
lor. Anybody else? Yes, Mr. Cashwell, and
perhaps Mr. Tom Powers. They went to the
carriage ? Yes, sir. Did you see Robert Mitch-
ell ? I think I did.. Did you say you saw Tom
Powers ? I think so. Did you see Tolar go to
the carriage? I did not, sir, that I recollect.
Did you see anything of John Maultsby at or
near the carriage? i think I did. You know him,
don't you ? Very well, sir. You have mention-
ed all the persons you recollect seeing go to the
carriage. I think I have sir. When the carriage
drove off you weut back to your work and some
few moments elapsed before you heard the noise.
Yes, sir. Did you go back to the window ? I
don't think I went to the window at all sir. Did
you look from the point where you were at work ?
Yes, I think so, some five or six feet from the
window. Was it the west window you were look-
ing out from ? Yes, sir. And when you saw
Archy recovering from his fall you were looking
out the west window also, were you? Yes, sir.
Did the stabs pass right along by the window?
No, sir, back of the window rather. In passing
down stairs, did you pass the window on your
right or left? The head of the stairs is some six
or eight feet from the window probably. You can
get to that window without going on the stairs?
Yes, sir, the stairs rather run down under the
window. Is there any rail at the head of the
stairs? I don't think so. You were standing
some four or five feet from that window, at any
rate? Yes, sir, I think so. Yon saw Archy in
the act of recovering apparently from a fall ?
That's what he appeared to be doing. Did you
hear any exclamations in the crowd then? I
don't recollect that I did. Never before the
pistol shot ? Only what he said himself. What
w»s that ? He said " don't kill me," or "let me
go," or something like that. You didn't hear
any one say "shoot the damn son of a bitch f
No, I don't think I did. Did you see any police,
there? I saw Mr. Faircloth and Mr. McGuire.
Did you see Wemyss? Yes, sir. Did you see
them have any clubs ? Mr. Faircloth had. Did
you see him use it ? Yes, sir. Were they facing
the crowd? No, sir, I think he rather stood
with his back to the crowd—his side was towards
the market, I think. His back was towards the
north, then? Yes, rather so. Did they seem to
be resisting the crowd? Well, they appeared to
be trying to keep between the crowd and the
prisoner. That was the impression you got from
that view? Yes, sir. Did you see any one ma-
king any assault on the prisoner before he was
shot ? I did not. Did you see no weapon at all?
No, sir, I don't think I saw any weapon at all,
except the pistol. You 6ay it seemed to be two
and a half feet to the left and rear of him? I
should think a little to the left and rear, as near-
ly as I can recollect. You say you didn't see the
hand that held the pistol? No, 6ir. Nor you
didn't see the man to whom the hand belonged ? (
No, sir, I think there was some obstruction to
the view at the time. Did you see Captain Tolar
at that moment? No, sir. Had you seen him
by that time, that day ? No, sir. When the pis-
tol fired and the negro fell, did you see what be-
came of the pistol ? No, sir. Then you went
down stairs, didn't you? Yes, sir. You saw
Davis standing on the pavement ? He was on
the causeway, between the pavement and the
market house, about 6ix feet, as nearly as 1 can
recollect from the corner of the pavement at his
store. At what did you estimate the distance be-
tween the corner of the pavement at Davis' store,
and the corner of the pavement at the market
house? I think about thirty or forty feet. You
think he had passed over five or six feet of that dis-
tance ? Well, the distance between the store—. I
am not talking about the distance between the !
store, but about the distance between the two
pavements ? Oh yes; about five or six feet from
the corner of his pavement. Was his face towards
the crowd ? I could not say as to that, he was,
talking to some one at the time. Do you know
who with ? I do not. Do you think he was stan-
ding there as you passed back ? I think he was.
CONVENED AT RALRIQH, NORTH CAROLINA.
247
You went into the crowd, did you not ? No, sir,
but within a few ieet of where Archy was lying.
Did not you go into the crowd at all ? No, sir.
Did you notice any body in the crowd that you
knew at that time? Well, I merely-went to see
if he was shot, and didn't stop more than a few
minutes and can't tell. Did you see Wemyss, or
Sheriff'Hardie there, or Faircloth, Maguire or
Bond ? Yes, they were close by the boy who was
shot. Did you see any body that was not an of-
ficer ? Well I presume I saw persons there but I
cannot recollect now any that I knew beside
these Ihave mentioned. Did you see Tolar there ?
1 saw him and some others back under the mar-
ket. How long did you stay there ? A few min-
utes. I couldn't say exactly—don't think it
exceeded two. You just went to the edge
of the pavement looked and came back?
Yes, sir, and I went towards the arch at the
end of the market house. Towards the edge
of the eastern arch ? Yes, sir. Did you get op-
posite that ? I did, sir. And when you got op-
posite that you saw Captain Tolar ? Yes, sir.
Where was he standing ? About ten feet from
the end underneath the - market house. Was he
facing you ? I could not say, he was talking to
some one at the time. Do you know to whom ?
No, sir. Did you notice anything peculiar in his
appearance at the time ? No, sir. Did you see
any weapons at all, or any marks of weapons ? j.
did not, sir. Had he a shawl or anything of that
sort on ? I think he had one on, sir ? How did
he have it? I think thrown over his shoulder,
or over his arm. During that same time did you
see Sam Phillips? About the same time, sir.
Where was he ? Outside the market house and
ten or twelve feet from where the prisoner was
shot. Was he on or off the pavement? Off at
the time. In which direction, down Person
street? Yes, sir. About east from where the
negro fell ? Well, it was in an easterly direction
from the market; I think he stood between the
boy that was shot and the middle of the street,
rather,—I think some ten or twelve feet proba-
bly from Beebee. Did you see him have any
weapon, sir ? I did not, sir. What was he do-
ing? He was standing there talking to some
person. Then you turned and went back ? Yes,
sir. When you passed, or went into the crowd,
did you hear any one say who had shot the pis-
tol ? Heard some inquiry. Did you hear any
answer? Yes, sir. Who was the person named
as having shot the man ? Capt. Tolar. How
many times do you hear that ? I don't know that
I heard it more than once. Did you know the
voice of the person ? Yes, sir. Who was he ?
He goes by the name of Beckton. A negro man?
Yes, sir. Are you sure about what you say about
that ? Ye3, sir. Was the voice near enough to
you to be heard ? Yes, sir. How far were you
from him ? About five or six feet. Was he talk-
ing as loud as I am now ? I think so. You say
Tolar, when you saw him, was about twenty or
thirty feet from the place where you heard the
man state that it was Tolar who shot him ? I
should think that was about the distance, sir.
Then you turned and went back up stairs,
and that is all you know of it ? Yes,
sir. . Have you any reason for knowing,
sir, either from information or from your own
knowledge, of any combination or agreement or
understanding between any parties to take the
man out of the hands of the authorities ? I never
knew of any thing of the kind sir. Did you ever
see Capt Tolar wear a pistol ? I don't know
that I could say I ever did. Do you know wheth-
er he owns a pistol ? I do not sir. You area
Mason sir, are you not ? No, sir. You are not
a Mason? No, sir.
Re-direct examination by Counsel for accused:
Mr Demming I understand you to say that when
you came down stairs you found Mr. Davis a step
or two off from the pavement? Yes, sir, about
six feet I think. And when you returned you.
think lie was about the same place? Yes, sir.
He was just at the corner of his pavement ? Yes,
some few feet beyond. You say that after the
man was shot you heard a colored man named.
Beeton say who shot him—how long after tlx®
man was shot did you hear Beckton say that ? I
don't think it exceeded a minute, or a few min-
utes at most. You say that at that time Captain
Tolar was thirty feet off from Beckton? Yes, I
should think at least twenty or thirty feet. Could
Tolar from where he was, bear Beckton's reply
to the question asked him, in the tone of voice
in which it was spoken ?
Counsel for prosecution:
I object to that. He can state the tone of the
voice, and the position of the parties, as well as
the amount of noise created by the buzzing and
movements of the crowd, and it then remains for
the Court to determine whether Tolar heard Beck-
ton's declaration or not.
Counsel for accused : s
We ask the Counsel for the prosecution as to
whether he does not consider the testimony, as
to what Beckton said, hearsay evidence—unless
it has first been shown that Beckton was in the
presence of Captain Tolar at the time the remark
was made. It is the duty of any party who offers
a declaration as against parties who are accused,
to prove that the person making the declaration
was in the presence of the party against whom
the declaration is offered as evidence.
Counsel for prosecution.
A declaration of a third party made in the de-
fendent's presence can be heard in evidence
.against even a drunken man ; it is for the Court
and jury to determine whether he was in a con-
dition to hear the remarks and did not contradict
them.
Counsel for accused:
May it please the Court—The remark made by
another is not admissible in evidence as against a
prisoner unless it is shown that the remark was
■ made in the presence of the accused and not con-
tradicted by him. We have not sought to exclude
any testimony calculated to elucidate the ques-
tions at issue by any such objections as those of-
fered by the Counsel for the prosecution. We
might have objected to the declarations of Beck-
ton at the time they were called for by the Coun-"
sel for the prosecution. We didn't think proper
to do so, and we now desire to show that they
are inadmissible as testimony by proving that the
remark by Becton in the presence of the witness
was not made in the presence of Capt. Tolar.
Counsel tor the prosecution:
I am stricken with amazement to hear the gen-
• tleman take such a position. The fact that Tolar
is shown to have been in the presence of Beckton
at the time his declaration was made is prima fa-
da evidence that Tolar heard his remarks, and
there can be nopossible objection to introducing
the declaration. If it was a case before a civil
Court the judge would admit the testimony and
leave it to the jury to 6ay whether the party accused
had heard the remark or not. The fact is plaip,
that Tolar was there,-and it is possible he might
have heard it—just as in the case ot a drunken
man, to which reference has been fnade. We do
not know whether he Tolar heard it or not. We
have a very decided opinion on that point, and wp
presume the Court has a shrewd suspicion that he
did; this opinion is derive not only from that
which this witness deposes to, but from the evi-
denee oi several others. Bnt that this evidence
248
PROCEEDINGS OP A MILITARY COMMISSION,
should be objected to, on the ground that there is
anything intho least irregulartn its introduction,
would have strick en me with amazement, if it
■were notthat I am learning daily, how far the zeal
of the Counsel will carry them. The remark of
Beckton has already been brought out in evidence,
and if there was any objection it should have
been offered at the proper time. If I did wrong,
the time to complain of it was when this
remark of Beckton's was first called for;
but the Counsel proposes now to ask the opinion
of this witness as to whether Tolar heard it or not.
They can ask where Tolar was standing, where
Beckton was standing, and in what position the
witness was. They can ask with regard to the tone
of voice in which this remark was made, and with
regard to the hum caused by the talking and
movement of the crowd, and then it is for the
Court to say whether the remark was made in the
presence of Tolar or not;—whether he heard it or
not.
Counsel for the accused:
The difference between the Counsel for the
prosecution aud the Counsel for the defence is
not a difference in a matter of law, but as to a
matter of fact. The whole thing rests upon the
construction to be placed upon the-word "pres-
ence."
Now may it please the Court it is proved by
this witness that Captain Tolar was six or eight
teet inside and under the market house, and
thirty feet distant from Beckton. That there was
a large crowd between Beckton and Tolar, and that
the remark by Beckton, as to wko shot the man,
was made in an ordinary toue of voice. We
think therefore that it cannot be fairly contended
that Beckton was in the presence of Tolar at the
time he made the remark, and Tolar is in no
sense bound by it. To illustrate, it could not
be said that I am in the presence of a man who is
talking in an ordinary tone, to another man in the
passage outside this hall. It seems to us a very
strange construction of the word presence. We
think that Captain Tolar was not in the presence,
actual or constructive, of Beckton when the re-
mark was made, which is now offered in evidence
against him.
Counsel for the prosecntion :
I would like to know what practical question
is before the Court. Doe$ the Counsel move to
strike out that question.
Counsel for the accused :
We say we have a right to examine this witness
as to his opinion upon the point whether Captain
Tolar could—taking into consideration all the
circumstances—have heard the remark made by
Beckton,
Counsel for the prosecution:
And I say, No.
Counsellor the accused:
Well, since the question is objected to, we'll
withdraw it and put it in another form.
Judge Advocate:
Do you withdraw the question ?
Counsel for the accused:
Yes, sir.
Ke-direct examination resumed:
Mr. Demming, you say at the time this remark
was made by Beckton, Tolar was standing about
thirty or forty feet off? Yes, sir, I should judge
60. And ten feet under the market house? Six
or eight feet I think, somewhere along there.
And Beckton was standing Out in the open air ?
Yes, sir, in the street. Was he standing due
east from the center of the arch ? Pretty much
east from the arch. Were there any persons be-
tween Beckton and Tolar ? Yes, sir. How many ?
Well, I dont know. Were there a good many?
Yes, there was a crowd. Was'it quiet or talking?
They were talking sir, more or less excited I sup-
pose. Was that crowd speaking in a loud tone
of voice? Well, they were talking in rather an
unnatural tone of voice. I understand you to
say that Beeton made that remark in an ordinary
tone of voice? Yes, sir, the man that asked him
stood near him. Was the crowd between Beckton
aud Tolar talking louder than Beckton? Sir?
. The question I asked, is, was the conversation
which was going on in the crowd, which was be-
tween Beckton and Tolar, as loud, or louder, than
the tone of voice in which Beckton said Tolar
had done it? I should think there was very lit-
tie difference. Very little difference between the
way the crowd was talking and the way Beckton
was? Yes, sir, I should think very little. How
far did the crowd extend from the market house at
that time, taking a direct line from where Tolar
was standing? Partly on the pavement and part-
ly off. That noise and that talkihg in the crowd
between Beckton and Tolar, did it seem to be
general talking or was it confined to certain por-
tions of the crowd ? It seemed to be a general
talking all around. And in as loud a tone of
voice as Beckton ? I shouldn't think there would
be much difference. I believe you said, sir, you
saw nobody with A weapon ? I don't recollect
seeing anybody with one. Mr. Deming, you have
said something about seeing Phillips, did you
see him in the crowd at the time the man was
shot, or after ? It was after the man was shot.
Questions by the Commission :
How far were you from Beckton at the time
Beckton made this remark ? Well, sir, I should
suppose, perhaps in the neighborhood of five or
six feet. Where were you standing ? I was pass-
ing him at the time. At what point from the
market house? Towards Davis' shop. Were
you between him and the market house, or be-
tween him and Davis' corner. Between him and
the market house, I think as nearly as I can now
recollect.
Judge Advocate:'
That will do Mr. Deming.
The Counsel for accnsed, on being asked who
the next witness was, said:—I shall have to an-
nounce to the Court that we are not ready just
now to examine any other witness. We have
two witnesses here who came, I suppose, this
morning, and I have never had any conversation
with them at all; in fact I didn't see them until
I passed up to the Court this morning at 11
o'clock.
Judge Advocate:
I wish to enter my protest against this contin-
ual delay on the part of the Counsel for the de-
fence.
The Commission:
At what time did they arrive ? Were they here
last night?
Counsel for defence:
No, sir, they got here this morning at nine o'-
clock; I would like to say, by way of setting the
Counsel for the prosecution right, that we are not
aware of having delayed the Court in the defence
at all.
Judge Advocate:
Whether on the part of the Counsel or the witJ
nesses the delay has been on the part of the de-
fence.
Counsel for defence:
The witnesses who were examined yesterday
were summoned on Saturday evening. It is cer-
tainly not our fault; we can't bring witnesses
here; and I think every day that witnesses have
come here, we have examined either upon the
day they have come, or certainly the next day
after.
CONVENED AT RALEIGH, NORTH CAROLINA.
J tidgo Advocate:
The difficulty is, may it please the Court, that
some four or five witnesses are summoned to be
here to-morrow, and we shall have a congrega-
• tion of witnesses here waiting1 to be examined.
There are three here now, and yet they are not
prepared to go on with the examination of them.
To-morrow there will be five more, or ought to
be; they have been summoned a long time since—
as long ago as last Thursday or Friday, and some
of them should have been here before now.
1 Counsel for accused :
Well, sir, when the witnesses come, just as
soon as I have an opportunity of talking to them
I will put them on the stand until the Conrt
wishes to stop. I do not desire, and I do not in-
tend, to be put in the wrong about this matter.
I have never had here yet, since this defence has
commenced, over three or lour witnesses at a
time; whereas the prosecution had these bench-
es almost full of witnesses, as many as ten or a
dozen at a time.
Judge Advocate:
I must beg leave to correct the Counsel; he
has had as many as seven, at any rate,, many ol
Whom remained here several weeks.
Counsel for defence:
Since the defence commenced?
Judge Advocate:
We are not talking about " since the defence
commenced" sir.
Counsel f<?r defense:
That is what I said sir. '
Judge Advocate:
I didn't so understand it, sir. It is for the Court
to say whether any more witnesses shall be ex-
amined to-day.
The defence not being ready to examine the
witnesses who were present, the Commission
concluded to adjourn, and,
On motion, at 1:45 P. M. the Commission was
adjourned until 10, o'clock to morrow, 29th inst.
Raleigh, N. C., Aug. 29,1867,10 A. M.
The Commission met pursuant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read.
On motion that part of the record having refer-
«nce to the hour of adjournment, was stricken
out.
Yesterday's proceedings were then approved.
William J. McPhail, a witness for the de-
fence having been first duly 6worn, testified as
follows: "
Examination by the Counsel for the accused:
What is your name? William J. McPhail.
Where do you reside ? In Cumberland county,
ten miles east of Fayetteville. What is your oc-
cupation ? I am a farmer, sir. Are you acquaint-
ed with John Armstrong ? Yes, sir. How long
have you known him ? I have known him from
a small boy. To whom did he formerly belong ?
He Iir6t belonged to Jeanett Armstrong, from
her he passed to F. C. Armstrong. Is Jeanett
Armstrong living or dead? She is dead, sir.
Farquard C. Armstrong, is he living? He is
dead. How far did John Armstrong live from
you, at the time he belonged to Farquard ? Three
miles when he belonged to Jeanett, four miles
when he belonged to Farquard. Do you know
the general character of John Armstrong for
troth? Yes, sir. What is that character? It
is bad, for truth. '
Cross examination by the Counsellor the pros-
ecution: ' .
Where did you say you lived Mr. McPhail ? In
Cumberland county, ten miles east of Fayette-
ville. How near do you live to Duncan J. Mc-
Alister? Two miles. In the same neighbor-
hood ? Yes, sir. Are you related to any of these
parties on trial? No, sir. Are you related to
any of the witnesses in this cause ? None that I
know, sir. Are you related to any of the parties
who have been arrested for this offence? No,
sir. You have no interest or bias whatever iff
this cause ? None in the world, sir. How old is
John Armstrong ? Well, sir, 1 could not tell ex-
actly his age, I think he is some thirty years old,
or more.' Nearer forty or thirty ? I suppose be-
tween thirty and thirty-five, I think I am some
older, and I am thirty-eight. How long have
you known him ? Since he was a boy. He lived
in the same neighborhood that you did wheu he
was a boy ? Yes, sir. How long has his charac-
ter been bad for truth? Since he was about
grown, sir. He established his character before
manhood ? "When he was about a man, sir, I be-
gan to be acquainted with his character. Who
have you heard speak of his general character?
I heard Joel Williams speak of his character.
Does he live in that neighborhood ? He is dead
now; he did live in that neighborhood. What
did he say about him ? He said his character for
truth was bad.. What brought it up? He had a
wife on his plantation, and he used to speak
about his having been at a los3 to know how to
get rid of John's coming to his plantation; he
said he was bad for truth and honesty. Did he
say auy thing about his truth as well as his hon-
esty ? Yes, sir. Well, sir, who else did you hear
speak of? J. M. Williams. Is he a son of Joel ?
Yes, sir. Lives at the same place? Yes, sir. All
these statements were made by these men before
this man Beebee was murdered? Yes, sir. How
long ago was it you heard J. M. Williams speak
of him ? I heard him speak of him since he was
tree and before. What did he say of him before.
Well, sir, he said he was a bad character, and he
didn't want him to be coming to his plantation.
Did he say any thing about his truth? Yes, sir.
How did his truth come in question ? Well, sir,
it was in connection with some' hogs that were
stolen on his plantation. Did he say Armstrong
had stolen them ? He spoke of John having said
something in regard to them and he did not know
whether it was so or not; he didn't have any
confidence in him. John Armstrong' had said
something about this matter? Yes, sir. Did lie
give in his testimony? No, sir, there was no
trial. Is that the only time you heard him speak
of him before he was free ? Yes, sir, I don't think I
ever heard him speak of his truth since he was free.
Who else have you heard speak of him for truth ?
I have heard William B. McAlister. Who else ?
John Holmes. Do these men all live in the
neighborhood that John did? Yes, sir. Any
one else ? Louis Williams, a freedman, Frank
Williams a freedman, and Jacob Avery, a freed-
man." When was that? In the Spring of '66 I
think. Do you remember any others ? Yes, sir,
Daniel B. Murphy; Sam Allen, a freedman of
color. When was that sir? Some time in the
spring of 1866, I think. Did he speak of his
truth? Yes, sir. How did his truth come in
question, in the spring of 1866—did Sam Allen's
ana Frank Williams' and Jacob Avery's? No, sir,
it was a different matter. How was it with Sam
Allen, what was the matter that brought up his
truth? In Murphy's case, about a mule. Did be
swear in that case ? Yes, sir. ' His affidavit was
taken? Yes, sir, taken by Major Lawrence, I
was present. These men said they would not
proceedings op a military commission,
believe him ? Sam Allen said he swore to what
was not so. Did he then go on and speak of his
character V Yes, sir. Was Sam Allen a witness
* in the case?. No, sir. Whose mule was it Mur-
phy's? Yes, sir, the mule was in dispute be-
tween Murphy and Smith. Was it in connection
■ with this matter that you heard Murphy speak of
his character ? Yes, sir. Between Murphy and
Smith? Yes, sir. Do you recollect any others
that you have heard speak of him ? No, sir, I
think that that is the most I have heard speak of
him. You know nothing whatever in this case ?
No, sir. Yon were not in Fayetteville the day it
took place ? No, sir. When were you summon-
ed as a witness ? I was summoned the 24th, sir.
Do you know how you came to be summoned ?
No, sir. You had nothing to do with procuring
your summons ? No, sir.
Re-direct examination, by the Counsel for the
accused.
Mr. McPhail, you say you heard one of these
parties speak of him, the remarks being brought
out by some trial, which occurred between John
Armstrong, and D. B. Murphy, about a mule ?
The trial was between Smith and Murphy. Did
Armstrong have any interest in the matter ; was
he interested in the mule ? I don't think he was
sir, he was a voluntary witness. You say his afli-
davit was taken before Major Lawrence ? Yes, sir.
Who was Major Lawrence ? He was in command
of the Freedman's Bureau in Fayetteville. Itwas
'a bureau trial? Yes, sir. In connection with
this affidavit, you heard these freedmen that you
have mentioned, speak not only of what he had
sworn to in that connection, but you heard them,
speak of his general character for truth? Yes,
sir. And these persons that you have named, are
neighbors of Armstrong, and have known him
long, and you have heard them call his character
for truth in question often and they all said it
was bad? Yes, sir. I will ask you sir, if you
have ever heard a man in that neighborhood,
speak of his character tor truth, and say it was
anything else but bad ? No, sir. And his char-
acter in the neighborhood has been canvassed a
good deal, before he was emancipated, and since
he was emancipated ? Yes, sir.
A. E. McKay, a witness for the defence, hav-
ing been first duly sworn, testified as follows:
Examined by the Counsel for the accused:
What is your name ? Alexander Erskine Me-
Kay. Where do you reside ? I reside within
live miles of Fayetteville, this side. In thecoun-
ty of Cumberland ? Yes, sir. Are you acquain-
ted with John Armstrong, a freedman ? I am.
How long have you known him ? I have known
him since 1860, About what is his age ? Well
sir, I think he is about thirty or thirty five, to
guess, I have no idea except from his looks. Do
you know to whom he formerly belonged ? I
know by reputation sir, not by rights. Do you
know with whom he formerly lived? Yes, sir,
he was a divided property, as I nnderstand—he
was left by the grand mother of Caulepon Arm-
Btrong's children to them. How far did you live
lrom him ? I lived about two miles from him—
two or three. Do you know the general cbarac-
ter of John Armstrong for truth ? I do sir.
What is his character for truth ? It is bad.
Cross examination, by the Counsel for prose-
CUtiOD.
How far did you liveffrom Fayetteville ? I live
now about five miles from Fayetteville sir, per-
haps. How long have you been living there ? I
have been living where I live only this year. Be-
fore that, where did you live ? I lived about a
laite higher up, nearer to where we were speaking
of .this man living. What is your occupation ?
Farming,, How far was the place thai John Arm¬
strong lived, from the plantation where you liv-
ed, at the time you learned his general character?
I was living then within two miles of him, farm-
ing in a mile of him—the plantations joined, in
1860-'61. What do you mean by a man's general
character ? I would make it what the neighbors
generally say about hi'm. That is correct sir; do
you mean to say the neighbors of John, generally
say that his cha••acter is bad for truth? They do.
How many persons have you heard speak of it?
I could not tell. Have yon heard many ? 411
that I have ever heard speak of him. You may
not have heard but one ? I have heard dozens
speak of him. Did they speak of his character in
other respects than for truth ? Yes, sir,forhon-
esty. Any thing else? He is pretty hard to
drink, that is the report. He is a drinking man,
aint honest and lies ? That is the report. Any
other crime laid to his charge ? I don'trecollect
of hearing any.
Dilly Stewart, a witness for the defence,
having been first duly sworn testified as follows,:
Examined by the Counsel for the accused.
What is your name ? My right name is Delia,
they always call me Dilly. Dilly what ? Dilly
Stewart. Where do you live ? In Fayetteville.
Do you live in the town ? I live in the edge of
the town, between the toll house and town. How
long have you been living in and about Fayette-
ville ? About thirty years I reckon, I got there
the year after the big fire. Did you know Archy
Beebee, or Archy Warden? Yes, sir, I have
known him ever since be was two days old, he
was two days old when I called to 6ee him
and his mother. Were you at the market
house in Fayetteville on the day Archy yras
killed? Yes, sir. What were you doing at
the market house, why did you go ? I went dar
for a witness in the case of that girl. You went
there as a witness in the case of Archy and Miss
Massey ? Yes, sir. Did you go up stairs
where they were examining him? Yes, sir.
What time did you come down stairs before
Archy was brought down, or afterwards ? I
come down before Archy come down. How long
before Archy was brought down ? I think itwas
about a quarter of an hour. When you came down
stairs where did you go ? I stopped at Becky
Ben's table where she keeps. Inside of her stall?
Yes, sir, between the stove and the bench. Just
tell where the stove is. As you come up the
steps the stove is on the right hand there. What
did you stop at the stove for ? To warm my feet,
it was pretty cold. You saw the crowd I suppose
under the market house? Yes, sir.. You stpod
there until after Archy was brought down ? Yes;,
sir. Were you sitting there when Archy first ap-
peared on the steps? When he come down
I was sitting there. Did you see him when they
first brought him to the head of the stairs, the
landing of the stairs ? I was there when he first
started; as he come down the man that kept the
door, I forget his name, but he kept .the door,
and when he come down I says to Morgan let us
go home, because it was cold. Never mind what
you said, you stayed there until he was brought
down? Yes, sir. Did you stay there until he
was shot? Yes, sir. Now at the time he first
made his appearance upon the stair steps, did
you notice anything unusual in the crowd ? No,
sir, there was nobody on the steps at all, but
the four men, one was Mr. Wemyss, tother was
Sheriff Hardie, and I don't know who the other
two men was. At the time Archy first made his
appearance at the landing did anybody jump on
that bench which runs close along there where
you were, and say anything? No, 6ir, it was all
mighty calm. From the time Archy first got to
the landing until he got to the flopr of the mar-
CONVENED AT RALEIGH, NORTH CAROLINA.
S51
ket "house, did any one jump on that bench, and
make use oi any exclamation ? No, sir. Did
anybody jump on that bench and say "watch out,;
hoys, here he comes"? No, sir. You swear
nothing of that sort occurred? I never heard a
thing of it. Do you know John Maultsby ? No,
sir. Do you know Capt. Tolar? I never seed
him in my life betore I seed him yesterday. Do
you kuowTom Powers? No, sir. Do you know
David Watkins; otherwise called Monk ? I r.ev-
er seed the Monk before I seed him yesterday.
Do you know Ed Powers ? No, sir. Do you
know J. G. Leggett? Yes, sir, I know him. Did
you see him there that day ? No, sir, I disremem-
her whether I seed him there or not. Do you
know Sam Hall ? No, sir. Do you know Ralph
Lutterloh? I know his father, but I don't know
him. Do you know Henry E. Sykes, the one-
armed man ? Yes, sir, I knowed Mm. Did you
see him there that day? I never noticed. Do
you know Sam Phillips? Yes, sir. Did you see
Sam Phillips there that day ? No, sir, I never
seed him. So you came down and took your seat
there by that stove inside of Becky Ben's stall ?
Yes, sir. Which way was your face fronting as
he came down the steps ? My face was towards
the stove and when he got to the hack post and
went to wheel around, there was two small white
men headed him up, and they says "hold him,"
and I says " dear God, is Archy having the assu-
ranee to run," " I would not run to save my life,
I would have stood my post until the last drop
of blood." Right off to the left there a man hoi-
lered " kill the God damned son of a bitch, shoot
him," and the pistol went off there, and ail of
them that was there was white, I didn't see any
colored men on the white side. Which way was
your face at the time Archy came down ? Right
to the steps as he come down. I understood you
to swear that nobody jumped upon that
bench? Nobody didn't jump up on the top
of the bench. There was no such expression
used as " watch out, boys, 'here he comes"?
If there was I never heard it. You never heard
everything that occurred about there at the
time, did you ? It was all mighty calm, I didn't
hear anything; it was most like a funeral, every
thing was so calm. And if any such expression
as that had been used upon that bench, you
would have heard it ? I would have heard it.
That is all you know about this matter? Yes,
sir. How long did you stay there, after Archy
wgs shot ? I reckon I didn't stay there a quarter.
About ten minutes ? I reckon about ten min-
utes. During the time ycu were there at the
market house, did you hear anybody cry out in
the crowd who had shot him ? No, sir, I never
heard who it was at all, until after I got over the
bridge. You need not tell what you heard after
you got over the bridge ? I never heard nobody
say who shot, not how he come to be shot. Be-
fore you left the market house, did you hear any-
body say they knew who shot him, or any thing
of that sort? No, sir. Can you hear well? Not
exactly. Can you hear me ? Yes, sir. You can
hear well enough' to hear what I am saying ?
Yes, sir.
Cross examination, by the Counsel for the,
prosecution;
Aunt Dilly, you came dowrn stairs about fifteen
miputes before Archy came down? Yes, sir.
You were sitting down by the stove, inside of
Becky Ben's stall? Yes, sir. With your face to-
wards the stove ? Yes, sir. Did you say it was
a cold day? Yes, sir, it was mighty cold. Was
there any wind? The wind was blowing very
much. While you were sitting there warming,
Archy came down? Yes, sir, and Mr. Wemyss
and the sheriff, and I don't know the tother two,
men. You didn't see anything done to him, as
he came downstairs? No, sir. Before Archy
started down, did you see anybody standing on
Becky Ben's bench ? No, sir. And when ho
came down the first thing you heard of any dis-
turbance was just as he was turning out of the
arch? Yes, sir, I heard some one say "hold
him, hold him, hold him." Was that said sever-
al times? Yes, sir, I saw two men seem to ho
heading him up, and I says—. Never mind what
you said? I thought he was going to run, and
some one said, shoot the nigger, God damn him.
When you sat down there, which one of your
sides was turned towards the point where this
man Archy was—your left side? Yes, sir.
You were looking over your left shoulder to see
what was going on ? Yes, sir. Did you hear tbc
sheriff tell the men to keep off? No, sir. A
good many times some one said hold him ? Yes,
sir. You say you don't hear very well ? No, sir.
Have you always been a little deaf? No, sir, I
took it to be from working so much over a hot
iron. It is only as you have grown older that
you have grown a little deaf? Yes, sir. Now
this person that cried "shoot him," how long
was that after this crowd interrupted him in pas-
sing out of the arch ? It was not more than a
minute or so. You didn't see who fired the pis-
tol? No, sir, there was so many there, it looked
to me there was two or three hundred. Did you
see any body with any pistol there that day? No,
sir, I never seed a knife, nor a pistol. You saw
no weapon at all ? No, sir.
Wiley Weight, a witness for the defence,
' having been first duly sworn testified as follows:
Examination by the Counsel for the prosecu-
tion.
What is your name? Wiley Smith. Do you
ever pass by any other name than Wiley Smith?
Yes, sir, Wiley"Wright. Where do you live ? I
live at Mr. Wm. B. Wrights, about three miles
from Fayetteville. Where does Mies. Eliza live
or where did she live at the time it was stated
that this outrage was committed on her? She
lived down below town. Who was she staying
with? With Mr. Wright. Do you know Archy
Beebee or Archy Warden? Yes, sir. Were you
in Fayetteville on the day he was killed ? Yes,
sir. Did you go to the market house ? Yes, sir.
Who did you go with ? I went with the ladies
mother. With Miss Massey? Yes, sir. How
did you go with her ? I drove her in the carriage
sir. What sort of a carriage was that ? A one
horse rockaway. What seat were you on ? The
front seat sir. What seat did she occupy ? The
back seat. Was there any division, either of a
curtain or any thing else between the front and
backseats? No, sir. How far was it from the
front seat upon which you sat to the back seat of
the carriage ? It was not more than a foot. And
an open space? Yes, sir. Then you drove Miss
Massey? Yes, sir. You didn't drive Miss Mas-
sey, the young lady? No, sir, I didn't drive her
to the market house. When yob got to the mar-
ket house wMch side did you stop the carriage
on ? On the east side. How far from the pave-
ment? Well sir, about ten feet I reckon. Did
any body go to the carriage when you drove up
first? No person, only Mr. Bond. The town
constable? Yes, sir. What did he do? He
taken the ladies out. Was there more than one
lady in the carriage at that time ? No, sir, there
was not but the one lady in there, the mother the
one I drove. How did the young lady go there ?
Mr. Bond he drove her down in a buggy, and he
helped her out of the buggy. Mr. Bond took the
young lady down out of his buggy, and took Mrs.,
Massey out of your carry all, aud went off? Yes,
eir< Where did he go ? Up in the market house.
252
PROCEEDINGS OF A MILITARY. COMMISSION,
Was Archy Beebee tip stairs at that time, or was
he brought out afterwards ? He was brought out
afterwards. Where were you at the time he was
brought down ? I was down on Diclc St., we
went there first, we didn't go straight to the mat-
ket house, before they got ready for the trial,
when they got ready for the trial, Mr. Yaun
came after me to go up to the market
house. Let me understand you; you drove
up there first before Archy Beebee was
carried up stairs ? I was not there, I never seed
him yet; I don't know whether they carried him
up stairs first or afterwards. What I want to get
at is, what became of you after Mr. Bond helped
the ladies out of the carriage ? Then I got out of
my carriage and went around the market house.
You left your carriage standing there? Yes, sir.
In charge of any body ? No, sir. Which side of
the market house did you go? I went on the
south side. ■ Did you remain there until the ladies
came down stairs? No, sir, I didn't remain
there all the time, I walked about under the mar-
ket house and around the market house. Passing
through the crowd that was there? Yes, sir.
How large a crowd ? It was a pretty smart crowd.
Where was the crowd, under the market house ?
Yes, sir, and most on the side where my carriage
was. On the east side ? Yes, sir. Do you know
Capt. Tolar? No, sir, I don't know him. You
don't know whether you saw him there that day
or not? No, sir. You didn't see that gentleman,
(pointing to Captain Tolar ?) If I did I didn't
know him. Do you know Tom Powers? No,
sir. Look at that gentleman, (pointing to Pow-
<ers,) and see whether you remember to have seen
him there? No, sir. I don't remember to have
seen him there. Do you know David Watkins,
otherwise called Monk ? No, sir. Look at that
gentleman (pointing to Watkins) and see if you
remember to have seen him ? I didn't see him
that I remember of. Do you know Ed. Powers ?
Yes, sir, Do you remember to have seen him
there that day? No, sir. Do you know Sam.
Hall? No, sir. Do you know J. G. Leggett?
No, sir. Do you know John Maultsby? No, sir.
Do you know Sykes, the one armed man: Henry
Sykes ? No, sir, 1 don't know him. Do you know
Sam. Phillips, who used to be constable ? Yes,
sir. Did you see him there ? No, sir, I didn't see
him.. You were on the south side under the mar-
ket house, and around the market house from
the time the ladies went up stairs until they
came down stairs ? Yes, sir. Passing in though
and around the crowd? Yes, sir. There was a
very-smart crowd? Yes, sir. Wi}s- there any
excitement-about the crowd that attracted your
attention ? If there was, I didn't see it. Did you
hear any threats, any thing that was to be done
to Archy Beebee ? No, sir. Did'you see any
whispering in the crowd ? No, sir. Where were
you at the time Miss Massey and her mother
were brought down stairs ? I was under the
market house then. Did you see them when
they passed out and went to the carriage ? No,
sir, when I was called to the carriage they were
at it. You saw them before they got up in the
carriage? Yes, sir. Who called to your car
riage ? Mr. Bond. Did you go straight to your
carriage ? Yes, sir. What did you do when you
got to your carriage; did you get up to your
seat? Yes, sir, I got right up to my seat. Now
while from the time that the ladies got into the
carriage—you saw them when they got into the
carriage ? Yes, sir. To the time they drove off,
who went to the carriage? I don't know, but
one, gentlemen. Who was that? Mr. Taylor.
Philimon Taylor ? Yes, sir, How many other
men were there that went to the carriage ? On-
ly one besides him. You didn't know him ? No,
sir, I didn't know him. I ask you if this mau
here (pointing to Tolar) went to the carriage ?
No, sir, he didn't go to the carriage. Did this
man here (pointing to Powers) go to the carriage?
If he did, I didn't see him. Was there any whis-
pering at the carriage between Miss Massey and
Mrs. Massey, or either of them, with any manor
with any men there ? Mr. Taylor, he stepped to
the carriage, and he didn't make out whatever it
was he had to say, Mr. Bond ordered me to drive
off. With that man that you didn't know who
went to the carriage, was there any whispering?
No, sir. Was there any conversation carried on
between these ladies and any body at that car-
riage that jrou didn't hear? No, sir, none at all.
Then 3'ou drove off? Yes, sir. You say before
Mr. Taylor finished his sentence, that Mr. Bond
directed, that the carriage should be driven off.
Yes, sir. Which way did you drive?. I went
do-wn on Dick street east from the market house;
I went down about a hundred and fifty or two
hundred yards, and turned to the right down
Dick street. Did you go back to the market
house any more that da3'? Yes, sir. What time
did you go back to the market house ? In about
twenty-five minutes. Where was Beebee at that
time? Well, sir, they hadn't brought him down
when I left. Where did you stop there ? I went
around with the ladies, and started with them
home, the horse stopped and would not go, and
they got put and I turned back. Where did you
go then ?', I come up to the market house. That
was in the twenty-five minutes you were speak-
ing of? Yes, sir. You came,back to the market
house? Yes, sir. Were you there when Arehy
was brought down? No, sir. You were not
there when lie was brought down? No, sir.
Where did you go? I went with the ladies,
started with them home. Did, you carry them
,, home ? No, sir. How far did you get ? I reckon
about half a mile. Let me see if I can't under-
stand you ; the carriage turned off and you went
with the ladies down Dick street ? Yes, Sir. And
then you came back up to the market house ?
No, sir, I didn't bring them back; they got out
when the horse1 stopped and wouldn't pull.
Where did the horse stop; on Dick street? , Yes,
sir, way down on Dick street about a half a mile.
Then the ladies got out ? Yes, sir. Where did
you go with the carriage ? I come right back to
the market house. And you think it was about
twenty-five minutes from the time you left with
the ladies? Yes, sir. When you got back to
the market house where did you go? I stopped
there a little. HowTong did you stay that sec-
ond time ? I reckon I stayed there a quarter of
an hour. Before you left there ? Yes, sir. And
left before Beebee was brought down? • Yes, sir.
I mean this last time ? He was dead when I got
back to the market house. How long after he
was dead ? I don't know how long he had been
dead. Did you look at him? Yes, sir. You
saw he was dead? Yes, sir. Who was about
him at the time you looked at him ? There was
a good many about there. Did you hear the pis-
tol fired ? No, sir. Is that all you know about the
matter? Yes, sir, all I know, sir.
Cross examination by the Counsel for the pros-
eeution:
, Did you drive the ladies to the market house
that morning, the morning of the day Archy Bee-
bee was killed? I drove her mother. Did yoil
drive them there twice that day or only once?
Only once. Was that after dinner? Yes, sir.
You drove Mrs. Massey in the rockaway, and Mr.
Bond drove Miss Massey in his buggy? Yes, sir.
Did you drive at the same time ? Yes, sir. Which
waB behind ? I was behind. After Mr. Bond
helped out the ladies, and went up stairs, what be-
CONVENED AT RALEIGH, NORTH CAROLINA,
253 "
came of Mr. Bond's buggy ? It stayed there.
And your carriage stayed there too? Yes, sir.
You left them there? Yes, sir. Any body in
charge ot Mr*. Bond's buggy ? No, sir. Was his
buggy in.front of your carriage? Yes, sir. You
went around to the south side of the market house
and stayed about there, and the first you knew
Bond told you that the ladies were about to get
into the carriage ? Yes, sir. You went back,
did both of the ladies get into your carriage then?
Yes, sir. What became of Bond's buggy, was it
still standing there ? Yes, sir. Was it standing
there when you drove off? Yes, sir. How long
after you got back to the carriage, after the ladies
got in before you drove off? I drove off as soon
as I could get on my seat.
Philimon' Taylor, a witness for the defence
having been first duly sworn, testified as follows:
By Counsel for the accused :
Mr. Taylor, where do you reside ? In Fayette-
ville. Fayetteville. North Carolina ? Yes, sir.
What is your.business? A merchant. Where is
your place of business ? On. market square, sir.
Which corner. The north east. Were you in
Fayetteville on the day Arcby Beebee or Archy
Warden was killed ? I was. Where were you ?
When he was killed, I was standing in my store
door. Before that time ? Well, I was out a little
from the store towards the market house. Did
you see him when he was carried up stairs ? No,
sir. Did you see Mrs,, Massey and her daughter
when they came to the market. I didn't see
them until they returned from the trial. Where
were you when Mrs. Massey. and her daughter
came down stairs. I was standing in my front
door.. Your front door looks which way? It
laces the market. Where did you first see Mrs.
Massey and her daughter ? • As they were com-
ing down from trial—I saw them as they were
being taken into-the carriage? Did you look
at them at the time particularly. Well, not
more so than usual? Who, was with them?
Mr. Bond. Any body else at that time ?
I didn't see any other persons with the la-
dies. Were there any persons near them?
There were quite a number standing round the
market square. Did any body seem to be in their
company, except Mr., Bond ?. That was all that
seemed to be in charge of the ladies. Did you
go to the carriage ? I did. How long after they
got into the carriage* did you go there ? About
when they were seated. Who accompanied
you ? Mr. David Csahwell was in my store, and
he said he thought he saw some sign made, and
that we had better go and speak t£< them. He
thought they wanted to speak to us. Were you
looking at the time they went in? Yes, sir.
You went up to the carriage? Yes, sir. Who
did you find when, you got there? No person
that I recollect, except Thomas Powers, who was
standing, I think about two or three feet from
the side where his sister, Mrs. Massey, was sitting.
Who else? I saw no other person in connection
with the carriage. Did you remain there at the
carriage until it was driven off? I did. Did Tom
Po .vers have any conversation at all with the la-
dies ? I didn't see him speak to the ladies or any
other person. From the time the ladies got into
the carriage until it drove off, did Captain Wil-
liam J. Tolaf go there at all ? I didn't see him.
Well, sir, can you state as a fact, you say you saw
it from that time,—can you state as a fact wheth-
er he went there or not ? I don't think he went
there; I didn't see him, and I, think if he .had
been there I should have Been him. Who else
went to the carriage? Mr. John Maultsby went
up, I think in company with Bond; IsawMaults-
by in the rear of the carriage, some five or six
feet I think from where Powers yag standing.
Did Maultsby have any conversation with the la-
dies? He didn't speak to them. You were at
the carriage when he came up? Yes, sir. At
which side of the carriage did he come up ?
Rather in the rear of the carriage frofn towards
Davis' store. Which side of the carriage were
you on, Mr. Taylor? The next side to the store.
How was the horse's head facing ? .About some-
thing like north ; that brought the ladies near fa-
cingin my store door. Was there any whisper-
ed conversation at that carriage ? There was none
while I was there, and I saw none. Who spoke
to the ladies while you were at the carriage ? No
body that I recollect of, except Mr. .Cashwell.
How long a time elapsed between the ladies get-
ting into the carriage and your arrival at it ?
Well, but a second or so. How far was it from •
i the place yon were standing at, to the carriage?
Not as far as that center column (pointing to a
column of the Court room, supporting the galle-
ry, and about forty feet from, the witness stand.)
Was it forty feet ? Well, about forty, or perhaps
thirty-five. Was the view from where you were to.
the carriage obstructed at all, or was it unobstrnct-
ed? It was perfectly open, sir. You had a perfect-.,
ly open view from the time of the ladies coming
to the carriage until you went to the carriage?.
Yes, sir. You saw nobody go with them except
Mr. Bond, and no tody go there at all after your
arrival ? There was no body there when I got
there except Tom Powers, he was standing in the
rear of the carriage. Was he speaking to any
body?. No, sir. What was he doing? Nothing
at all, he was standing within two or three feet of
the carriage towards the market house. And af-
ter you got there, you swear, there was no con- •
versation between the ladies and any one except >
Mr. Cashwell ? That was all that I heard or saw,
, and there was nothing else while I was at the car-
riage. So that Powers and Maultsby and Bond
were all in the rear ? Yes, sir. How much space
was there between them ? Do you mean between-
Powers and Maultsby. Yes? The position
Powers had was I think about opposite the cen-
tre of the carriage, and Maultsby was to the left.
How far to the left ? About five or six feet.
"Where was Bond? About on the side where I
was. Did yon see any conversation or hear any
, between Bond and Maultsby, or Maultsby and
Powers or between any of the three at that time?
Not a word. Then they were not together, but
separated ? Yes, they were all separated when I
saw them, I think that Maultsby and Bond were
. walking, Maultsby stopped on the rear of the
caitiage, and Bond went forward and told the
boy to drive away. Do you know where Bond
came from ? I do not, I think he came from
about the opposite side of the street. Who help-
ed the ladies into the carriage ? I think MTr,
Bond. Do you know what became of him after-
wards ? No. Where did you say he came from
when he came back ? From Davis' corner I think.
How long a time elapsed between the time the
ladies went into the carriage and the carriage
driving off ? I don't think it exceeded a minute.
You say Bond came from over towards Davis'
corner? Yes, or, he might have been standing '
by the carriage. He came round the carriage and
told the boy to drive off. Do you know where
Tom Powers came from? I don't, he was stan-
ding at the carriage when I went up to it. Did
he alter bis position at all sir ? I did not see any
change in his position. Did you notice Tom
Powers before yon left your store go to the car-
riage ? No, Sir, I didn't see him lintil I got to
the carriage, he was standing some two or three
feet from the side of the carriage Which way
did the carriage drive? Down Person street.
.And then became lost to your view? I saw no: .
354
PROCEEDINGS OF A MILITARY COMMISSION,
more of it. What became of you ? I weut back
to my store. You say you think the carriage
drove down Person street ? Yes, sir. And then
you think it went down Dick street? Well, sir,
I only saw it turn down Person street. When
you left the carriage Mr. Taylor and returned to
your store what part of your store did yon go to ?
I staid in the front door; about that time the
prisoner was being brought down. So you took
your stand in the frontdoor, looking towards the
market house ? Yes. Did you have a clear view
of all the eastern portion of the market house
from your door? Yes, sir, it was all open.
When you stood in your door were you on. a
level with the pavement, or above it, or
below? Elevated above it—the door is
about, six inches above the pavement.
Could you see tbe stair steps, and did you see
the man Beebee when he came down stairs ? I
could see the stair-steps. You saw him come
down stairs? Well, of course I saw the officers
coming down stairs, but 1 didn't know him from
any other colored man. Did anything unusual
occur between the time you saw Beebee on the
landing of the stairs and the time of his reaching
the pavement outside the eastern arch ? Not
that I saw. Now, Mr. Taylor, having got Beebee
to the outer edge of the eastern arch, on the
pavement, tell the Court what you saw. Well,
about the time he cleared the east end of the
market house, and turned to the right to go down
Gillespie street, I saw commotion in the crowd.
What was the nature of that commotion ? Well,
some persons in the rear seemed to be pressing
up, and some were coming up on the other side,
it seems about the time they got near the eastern
corner, the crowd got in front of them, and
brought a sort of halt there. The first commo
tion I saw I supposed was caused by some strug-
gle or falling or something among the officers
and the prisoners; after they got to the eastern
corner of the market house, there was something
like a halt made; there was more or less commo-
fion in the crowd until the pistol was fired.
What was the size of the crowd as nearly as you
could judge of it ? Up to that time I don't think
there were more than fifty persons. Of all col-
ors? I think so. Was it a scattered crowd or
closely compact ? Closely compact; I could not
tell one man's head from another. There they
got with the prisoner down about the south east
corner of the market house ? Yes, sir, near the
south side of the small arch. Well, sir, what oc-
curred there? Well, there was a pistol fired.
Did you see the fiash ? Yes, sir. Did you hear
the report? Yes, sir. And saw the smoke?
Yes, sir. Do you know who shot it? I do not.
From what point was the pistol fired? Well,
I am not positive whether the pistol was fired
on the pavement of the market house, or just
off the edge. You think it was near the edge?
I should think so. How far from Beebee ? It
was very close. How close do you think ? I
think within two feet of him. What was the con-
dition of the crowd at the time the pistol fired ?
There was some moving about; up to that time.
Was the crowd dense towards the prisoner or
around him ? Pretty dense around him. Which
way lay the densest portion of it. In his rear,
extending back up to the pavement. As he came
out the large arch, the crowd that was in the rear
seemed to follow. Exteuding in the rear of the
prisoner the crowd was close and dense? That
is my notion of it sir. How was the crowd to the
east of the prisoner;—say to his left hand and to
his rear and left? Well they extended out into
the street, some distance off the pavement. Say
towards his rear and left and rear—there was
where the crowd was pressing and thick ? Yes,
that was my view of it. Was the pistol shot fired
from the deceased man's reas, right and rear, to
his left and rear, or to his right and front, or left
and front, or where ? Well, I think the pistol
was a little to the rear, of the prisoner, and, I
thought somewhat to his right. Yon say you'
don't know who shot the pistol. I do not sir.
Did you see Captaiu Tolar at that time? I did
not ? Had you seen him at all during that day ?
I think I saw him either after dinner or before;
but I can't tell whether before or alter. Where
did you see him? About the market, about the
south side. At the time the pistol shot fired, if
you saw Tolar you did not recognize him ? No,
sir, I don't know that I recognized any body at
all in the crowd. How far, measuring straight
hack was it from the point you saw the pistol
fired, to the center of the main eastern arch ? I
should think ten or twelve feet. Now, observing
the crowd as you did that day, how long would it
have taken a man to have gone from the front
where the pistol shot was fired, straight back
through the crowd to the middle of the main
eastern arch ?
Counsel for the prosecution:
Do you think this a proper question ? '
Counsel for the accused:
I think it is. I am not asking him for his opiu-
ion—he can say that he does or docs not know,
as the fact may be.
Counsel for the prosecution:
He can state the distantes, and the density of
the crowd.
Counsel for the accused:
He has, and I ask him, taking these into con-
6ideration, how long it would have taken a man
to have passed from one point to the other.
Counsel for the prosecution:
That is a matter of opinion—he can give all the
facts, and the positions; but I object to your
question, as involving a mere matter of opinion.
Counsel for accused.
Well, if you object, we will not press it,
Examination resumed.
How many persons would you estimate, as be-
ing between the point you have named—ten feet
off from the prisoner, and immediately in his
rear—to the point where the pistol was fired ?
Well, I couldn't really swear how many there
were. We do not expect you sir, to swear the
exact number—estimate it? Well about twenty
or thirty persons, I suppose. Were they stand-
ing thick? About as thick as they could stand, I
think. And about to his left and rear? Yes,
they were pre§sed in as closely as they could
come, one to another. How long did you stay at
your store after the pistol shot was fired ? For
some time—I went up town in the evening. Did
the crowd increase after the shooting? Yes, sir,
nearly doubled—hearing the shot probably indue-
ed people to flock there, from about almost
every direction. Was the crowd calmer after the
pistol fired, or more boisterous? Well, every-'
tning seemed to be quieted by the crack of the
pistol. Before that time, sir, was the crowd in
confusion? To a greater or less extent; they
seemed to be anxious to change position, and I
suppose one person was shoving another. Did
you hear any exclamations or cries proceeding
from the crowd ? The only thing that attracted
my attention to the crowd, I think, was, that
about the time the prisoner and officers were
passing the eastern arch, I thought I heard some-
thing said, and as well as .1 can recollect I think
it was "halt"! Do you know whether it was
" halt,"J orl " halt him" ? I don't [think I heard
"him." How long was that before the pistol,
was fired ? A verv.short time. Directly after'
the pistol was fired, did you bear any cxclama-
CONVENED AT RABKIGU, KORTI1 CAROLINA.
%
255-
tions as to who had shot him ? I heard nothing
at all on that subject. No voice at all about the
shooting? No. Did you see anything either be-
fore you went to the carriage, while at it or after
you returned from it which led you to think that
any injury was to be done to him? No, sir, I
heard nothing and saw no movements indicating
anything of the kind. Do you kuowof any agree-
ment or compact beeween any persons at all to
do the prisoner any harm ? I do not. Did you
hear anybody cry out immediately after the shoot-
ing that Capt. Tolar shot him, or that Tolar had
killed him? No, sir. Did you hear any hurrahs
for Capt. Tolar, any cry of " hurrah ! hurrah! for
Capt. Tolar." Nothing of the sort; the crowd
was all still; everything seemed by the crack of
the pistol to be brought to a perfect peace. And
how long did it remain in that state of quietude?
Until the crowd began to disperse. • How many
miuutes? A few minutes, until the Mayor came
round and told the people to disperse. But how
long did that quiet remain ? It was not broken
at all; I 6aw no demonstrations. You were
standing there looking at the crowd, and hearing
what you could hear, and you heard nobody cry,
"hurrahfor Capt. Tolar!" nor anything of that
kind? 1 heard nothing of the kind, sir. Is your
hearing good ? Well, it is tolerable good;
I don't know that it's as good as that of some
men. Is it as good as the average ? I think it is
How far ofi was your door from the point at which
the pistol was fired ? From my door to the south
east corner of the market is about ninety Teet, I
think. About thirty steps ? Not more than that;
I don't think it is; I have not stepped, but ——.
Never mind about that, sir, your impression will
do; are you related, Mr. Taylor, by blood or
marriage, to Captain Tolar ? No, sir. What are
your church relations ? Well, he is a member of
"the same denomination that I am, but we do not
worship at the same place. You are both mem-
bers of the Baptist persuasion, but you do not
worship at the same Church? Yes,.sir, exaetly.
Is there any intimacy between you ? There has
always been good feeling, I have known him per-
sonally since the breaking up of the war, before
then I was not personally acquainted with him.
But you have always been on good terms ? Yeg,
sir, always. Is there any intimacy between your-
self and Thomas Powers ? None at all, more than
the two are friendly when we meet; I have known
him from his childhood. Between yourself and
David Watkins, (Monk?) None at all. Ed.
Powers? None, sir. Sam. Hall? None. J. G.
Leggett ? No. John Maultsby? None. H. E.
Sykes ? None, sir.
Cross examined by the Counsel for prosecution:
Mr. Taylor, do you know whether there is any
relationship between Capt. Tolar and Miss Elvira
Massey ? I do not, sir, if there is any it is very
distant; I do not know that there is any, sir.
Very well, sir; now suppose you were standing
square in your store door, to which point of the
compass would your face be turned—north, south,
east or west ? If standing in the door on Person
street, south, if in the other door, west. There
are two doors then; one, as I understand it, faces
west and the other south ? Yes, sir. The one
facing west opens on market square and the one
facing south on Person street ? Yes, sir. Your
store is directly opposite to that of Ichabod B.
Davis? Immediately opposite. What is the
width of the street? At that point? Yes, sir?
I think ninety feet, or less; it is ninety feet from
pavement to pavement; 1 am not positive about
it, any way, but I think the streets are called
; I think Person street is a hundred feet;.
if so it would not be more than eighty feet from
pavement to pavement. But. from door tQ door ?
About a hundred feet, I think. When you saw
the ladies come into the carriagewhieh door were
you in ? The south one. Opening on Person
street? Yes, sir. How were the heads of the
horses turned ? To the north. If the carriage
had been driven straight ahead as the horses
heads ?
Counsel for accused:
There was but one horse.
Counsel for prosecution.
We'l, one horse, then,—if the carriage had been
driven straight ahead as the horse's head was
would it have passed to the west of your store ?
It would have passed to the north. Well, it
would have been west, but going north? Yes,
sir. Did you see two carriages drive up there ?
No. Did Miss Massey and her mother come in
the same carriage ? I don't know how they came.
Did you see any other carriage standing there be-
sides the carriage they went away in ? I did
not. You did not see .them get out? I
did not. When did you first see the carriage,
when the ladies were out of it, or when they
went in ? I didn't see it until they went in. And
■ you didn't notice any other carriage there ? ' No,
sir, not that I recollect. Was there any buggy or
waggon ? There might have been wagons in the
street, I didn't notice. Did you see any buggy
near the carriage, back or front, or immediately
near ? No, sir. You saw the ladies in the act of
getting into the carriage? Yes, sir, just as they
were about taking seats. Did you see Mr. Bond
at that time ? I think he was waiting on them.
It was on the side of the carriage next the mar-
ket house. You were then in your store ? Yes,
sir. Was Mr. Cashwell standing in the door
also? Yes, sir, I think we were both in the door.
You, think he was standing in the west door, and
you probably in the south ? Yes, sir. And Mr.
Cashwell mentioned to you that he thought the
ladies intimated that they wished to speak to
either or both of you ? Yes, sir. When he made
this intimation to you, did you turn to speak to
him, or did he come to you? We stepped im-
mediately to the carriage. Did both of you go
by the same door. I think we .
Counsel for prosecution.
I want to know, if it is possible, by calling
your attention to these minute details, whether
it was possible for you to have lost sight of that
carriage after yon first saw it.
Now, in that conversation that took place how
were your faces turned ? I expect his face was
turned to me at that time Don't you think your
facewas turned to him? 1 don't know, I can't
say. You can't say whether you lost sight of
that carriage at that moment or not ? Well, if I
oid it was but for a moment. You don't know
whether he went out by the same door as you ?
I think so. After Mr. Bond helped the ladies in-
to the carriage what became of him ? I don't
know. Did you notice. that be had disap-
peared at all? No. You can't tell whether
he staid still at the carriage or left there ?
He certainly was not there when I got there, but
very soon after I got to the carriage he came up
in the rear. You saw him when he was assisting
the ladies in, and when you went towards the
carriage you have no recollection of seeing him
there? No, sir. Was the carriage standing right
square in front of the main arch of the market
house ? Further north. How far ? About op-
posite the north-east corner of the market-house,
I think. Well, when you got to the carriage,
you say almost immediately was it that you saw
Mr. Bond and M<\ Manltsby—was it just after yon
got to the catriage ? Well, I saw Manltsby di-
reetly after I got to the carriage, or rather I saw
him in the rear of the carriage; and My. Bond
256
"PROCEEDINGS OF A MILITARY COMMISSION,
came round to the side I was, and told the boy
to drive away. Mr. Bond came from the rear to
the right side of the carriage V Yes, sir, to the
cast side. Did you see where he came from ex-
cept that he came from the rear of the carri-
age ? Well, he came from the street south of the
carriage,—in the rear. How many steps did you
see him before he came up to the carriage ? Well,
I suppose enough to walk round the carriage.
You don't know where he came from, to where
you first saw him ? No. I understand you to
say in your examination-in-chief that you saw
Maultsby and Bond about the same time;
is it not your impression also that you
saw them together, or close together? Well,
within two or three feet of each other. Within
conversing distance ? Yes, sir. Was Maultsby
nearer the market house than you were? Yes,
he was to the rear and south of the carriage door.
Was he directly in the rear, square in the rear of
the carriage? Yes, sir, south, when I saw him.
You didn't see where he came from? No, sir.
Did you see any conversation between him and
Bond ? No, sir. Nor hear any ? No, sir. When
you went up. to the carriage you found Tom
Powers, did you see his position ? Yes, sir, two
or three feet from the carriage on the side next
the market house; that is my impression. Oh,
yes, I understand very well that the distances
have not been measured, and all I want is to as-
certain how the scene was pictured on your men-
tal consciousness ; I want to know whether he
was behind the carriage or on the west side of it
Who, Tom Powers? Yes. He was standing
about amid-ship of the carriage, about where the
door was open, about two or three feet of the
■carriage, between that and the market house.
You didn't hear any conversation between him
and his sister, Mrs. Massey? No, sir. You
didn't see him until he got to the carriage I un-
derstand? No, sir. Did you see him when he
got to that point? Yes, sir. Do you know where
be came from to arrive at that point? No, sir.
When did you see him, when he arrived—Oh!
he was there when you saw him ? Yes, sir. No
conversation took place with the ladies you say,
that you could hear, nor any at all while you
were there yourself, except what Mr. Cashwell
had? That is all. And you saw him from the
time the ladies got into the carriage until it drove
off—how long ? Don't think it was more than a
minute. Then you turned back? Yes, sir,
I went back to my store. Do you know
what became of Tom Powers ? No, the
crowd was rather promiscuous about the
store. Did the crowd go back as far. as
the carriage? It didn't lack much of it that
is, it was not dense there, you know, but there
were some people about there. How far was that
carriage from the market house ? Well, I should
think it was —-. Say from the edge of the pave-
ment? About forty feet.
Counsel for accused:
Which pavement ?
i Counsel for prosecution: . '
• I am speaking of the pavement in front of the
market house. You understand, Mr. Taylor,
that is the one I am speaking of? Witness,
yes, sir. You think it was forty or fifty feet?
That is my impression, sir, though I have never
measured the ground. Oh; yes, we understand
that,—did you see whether Tom Powers went
baclc to the market house, or staid stationary, af-
ter the carriage drove off? I don't know. Did
you see what became of Mr. Bond ? No, sir.
Nor of Maultsby ? No, sir, I don't know what
direction they took when the carriage drove off;
I went immediately back to my store. You didn't
see Capt. Tolar at the carriage? No, sir. Nor
in the crowd anywhere while you were at the
carriage? No, sir. And the only time yon saw
him that day up to the point of time when the
carriage dx*ove off, occurred to your best recollec-
tion, was before that time ? ■ Yes, sir, it was either
before dinner or soon after I came from dinner.
Was the crowd there when you came from dinner?
There was a crowd there, a sort of mixed crowd,
blacks and whites. You saw him at the south side?
Yes, sir. Were you passing on the same side of
the street? I was crossing Gillespie street
through the market square to my store, and I
think I recognised Captain Tolar standing about
the market house. And you never saw him in
the crowd after that up to the time the carriage
drove away? I never saw him any more until
the latter part of that day.- In the evening I was
up street on business, and while I was coming
down on one side of Hay street I saw Captain
Tolar walking up on the "other, the south side.
That is the only time you saw him after the time
you have described ? Yes, sir. When you went
back to your store, did you stand in your south
door or the west one ? The south one. Did Mr.
Cashwell come back with you? He went into
the crowd. I can't say where he went. The
south door where you stood when you went back
opens on Person street? Yes, sir. And you
staid there until Archie came down stairs ? Yes.
How long from the time the carriage drove away
ugtil Archy made his appearance ? It was not
long. How many minutes? Well, I dont know
that I could say. Can't you estimate? 'Twas
but a very short time, any way, I dont think I
could say the time any way near. Directly the
carriage drove away I walked back into the store,
and soon after that I heard the movement of
feet in the upper part of the market. That
drew the attention of the people around
who had not heard of it before; then I noticed
they came down stairs; when they got to the
pavement the crowd was so much around the
prisoner and the officers that I couldn't tell One
man from another. And you recognized no one?
I think I saw officer Wemyss and lam satisfied I
recognized Sheriff Hardie. Is your eye-sight at
all impaired ? It is as good at that distance as
anybody's of my age; 'tis not so good as some
people's, when close to a thing, except I use
glasses. The first assault you saw made on the
prisoner was just as he got out of the arch? I
saw no assault, but a commotion in the crowd.
Was it a close pressing on him; was that the na-
ture of the commotion ? Yes, sir. Did you hear
any exclamations about that time; the time you
heard the word " halt" ? No, sir. Did you hear
.Sheriff Hardie's voice at all ? No, sir. You didn't
hear him use any such expression as "stand
back, gentlemen," or "stand back, men, he is
my prisoner," or anything of that sort ? No, sir.
Did you see the police have any clubs ? I saw
officer Wemyss with a club after the killing.
Yes, but I mean the time of the first pressure?
No, sir. Was the day cold or not, sir? Well, it
might have been a raw day, what we call a raw
day. What you call a bleak raw day? Well, I
can't say exactly. Do you remember whether it
was bright or cloudy? I can't say, sir. You
don't remember whether there was a wind or not?
Well, it is likely there was some wind blowing
that day. Have you any recollection? I can't
say positively. Did you notice whether the pis-
tol was fired, whether the smoke remained sta-
tionary; or, did the wind move it? Well, I
didn't observe particularly about the smoke or
wind. You saw the flash ? Yes, sir. And heard
the report? Yes, sir. Well, you know, some-
times on a damp heavy day smoke remains in
the spot where it is produced; you can't say, in
CONVENED AT RALEIGII, NORTH CAROLINA*
257
this instance whether it Was stationary, orwlieth-
or it Avas drifted away by the wind? No, sir, I
paid no attention. Did you, at any time that day,
see any man in that crowd Avith any description
of Aveapou ? No, sir, I avus not in the crowd at all.
You were near the edge of it when you Avent to
the carriage? Yes, sir. You saw *110 Aveapons
then nor aficnvards in the hands of any one ? No
sir, I did not ? Did I understand you to say that
a very solemn stillness tell over the crowd, after
the tiring of the pistol ? That was my itnpres-
eion, sir. That Avas a noticeable stillness ? That
was my notion of it, sir. And the same state of
partial excitement that you noticed at first, ACas
not got up again until the crowd was dispersed ?
No, sir. You heard no body cry out in the crowd
that Captain Tolar had shot him ? No, sir. Did
you notice Tom Towers at any other time that
day except the time at the carriage? I can't say,
I might have, my impression is I did see him that
forenoon. Is your impression decided enough to
speak, certainly ? I don't know that I Avould
speak of it as a certainty. You didu't see him af-
ter this firing, at all? No, sir, I have no recollec-
tion of seeing PoAvers after I saw him at the car-
riage. You say Avliilc you Avere at the carriage
you heard no conversation and saw none between
Tom Powers and Mrs. Massey ? No, sir.
Counsel for the prosecution:
We have finished with the witness gentlemen.
Counsel for the accused:
We have no further questions to ask, sir. Oh,
one question more, Mr. Taylor, with regard to
these doors, one looking west and the other south,
how far are they apart "? You can step from one
Into the other, they are both corner doors. How
far from the corner ? Well, there is nothing but
the corner of the building betAveen the two doors.
About how thick is the corner? Well I think it
is two brick thick in the first story. How far are
the doors from the extreme outer angle of the
building ? About two and a half feet each. And
you can step from one door into the other? Well
It might be a step and a half.
Counsel:
That will do, sir.
At one o'clock, P. M., on motion, the Commis-
sioned adjourned, to meet on 30th iast., at ten,
A. M.
Raleigh, N. C., Aug. 30, 1867, 10 A. M.
The Commission met pursuant to adjournment.
Present: All the members of the Commission,
the Judge Advocate, the Gounsel for the prose-
cution, all the accused and their Counsel.
The reading of the testimony taken on Satur-
day, the 24th instant, was waived, there being no
objection thereto.
Yesterdays proceedings were then read and ap-
proved.
The Counsel for the defence said, there is only
one witness, who came this morning, Sergeant
Kenstler.
Dr. Kirk did not arrive, Sergeant Kenstler in
formed me, and I suppose the Judge Advocate-
has the same information, that Colonel Cogswell,
in consequence of sickness among the Garrison
of Fayetteville, could not spare Surgeon Kirk at
the present time. We will not be prepared to ex-
amine Sergeant Kenstler until the testimony of
Dr. Kirk is taken, unless Ave can agree with the
Judge Advocate and the Counsel for the prosecu-
tion", in regard to one or two matters, and I
would suggest that Sergeant Kenstler be called,
and Ave retire with the Judge Advocate and the
Counsel for the prosecution, and see if we can
agree upon these points.
' The Judge Advocate stated on the part of the.
prosecution that they had no objection to con-
lering with the Counsel for the defence in this
matter.
The Judge Advocate, the Counsel for the pros-
ecution, the Counsel for the defence, and Ser-
geant Kenstler retired for the purpose of holding
a consultation.
At the close of the consultation, the Counsel
for the defence said:
I Avill state to the Court that the consultation
which has been had Avith the Counsel for tho
prosecution, and the Judge Advocate has resul-
ted in nothing, so far as dispensing with Surgeon
Kirk's testimony isconcerned. We propose, how-
ever, to introduce Sergeant Kenstler, in order that
he may return to his post, but Ave shall be com-
pulled to ask for the attendance of Surgeon Kirk.
The Counsel for the prosecution:
I will say to the Counsel and the Court hoav,
that it will he absolutely necessary for us to in-
troduce Sergeant Kenstler when the case for the
defence is closed, and it seems to me, if it Avould
answer the purposes of the defence that they
might as well examine him then, and thus save
time.
Counsel for the defence:
We prefer to introduce liim now.
Francis Kenstler, a witness for the defence
having been first duly sworn testified as folloAvs:
Examined by the Counsel for the accused.
What is your name ? Francis Kenstler. What
is your rank in the service ? ■ First Sergeant, Co.
K." 8th Infantry. At what point are you station-
ed? Fayetteville, N. C. Do you know Avliether
the body of Archy Beebee has been exhumed at
any time since his burial? I was ordered one
day to go out and take up the body, Avith Dr.
Kirk. Yon were ordered by whom? By Lt.
Conner. The commander of your company ?
Yes, sir, at that time. Who constituted the res-
urrection party ? I did sir, I was in charge of
them. Who else Avere in the company? Two
privates of one company, and Dr. Kirk. Any
other persons black or white? There was some
colored persons there, at the time Ave got there.
Who Avere they ? I didn't know them. By whose
direction did they go there? I don't know sir.
At what time was it that you exhumed this body ?
I don't know the date. Hoav long has it been,
weeks or months ? It lias been tAvo AVeeks since,
the time I came down here last Well, sir, was
the body taken up in your presence ? The body
could not have been taken up; we raised the lid
of the coffin. Did you dig down to the coffin ?
Yes, sir. Did you find it coffined? Yes, sir.
Did you open tho coffin? Yes, sir. Removing
the lid ? Yes, sir. Did yott take out the body ?
No, sir, we could not take out the body. Why
didn't you take it out? We could not do it, the
smell was too disagreeable. Did you remove the
head? Yes, sir. How was the head removed?
We cut it off, with an ax part of it, the other
part with a knife. Cut it as it was lying in
thegraAre? Yes, sir. Who ordered that op-
cration, who cut off the head ? One of the
company and a colored man. What did you
do wittTtlie head alter you had taken it off?
We took it aside, and I laid it on the ground,
and sawed the skull off. You sawed the skull off.
and searched for the bullet just there, near the
grave ? Yes, sir. Who made the search, Surgeon
Kirk ? Yes, sir, Surgeon Kirk. Who is Surgeon
Kirk, sir ? Assistant Surgeon of the post of Fay-
etteville. IIoav did he open the head ? He saw-
ed the skull off. How did he saw the skull off?
Right across beloAV where the bullet Avent in. It
was sawed straight across ? Yes, sir. Did you
see the hole in the skull where the bullet entered?
1 did, sir. Could you-tell the precise point where
258
PROCEEDINGS OF A MILITARY COMMISSION,
the bullet entered? I could not tell exactly.
The ear was not on the skull, was it? It was
there, the bullet entered about an inch and a half
from the lett ear, back of the left ear. Was the
hair on the head ? The hair come off as soon as
we took the head out. Do you know whether
the bullet entered below the hair or in the hair?
There was not any hair there at the time we took
the skull off. Was the bullet found in the head?
Tea, sir. Do you know what part of the head
the bullet was found in? In the brain. Do you
know which way the bullet ranged ? I could not
tell that, sir. Do you kuow whether the bullet
had struck the opposite side of the skull ? I
could not tell that, sir. Where was the bullet
found by Dr. 'Kirk ? In the brain. Was the
brain in the skull at the time it was found ? It
was outside, lying on the ground, after the skull
was taken off. What was the state of the brain ;
was it decomposed or was it pulsy and solid ? It
had the same color as the bullet -a lead color.
After the brains fell upon the ground in a mass,
by examination of the brain the bullet was found
there ? Yes, sir. What was done with that bul-
let? It was given in my care. By whom? By
Dr. Kirk. What did you do with that bullet ? I
have kept the bullet, and brought it down here.
How long did you keep the bullet before you
brought it here? I kept the bullet about two
days. And you then brought it here? Yes, sir.
Did. you bring it under Orders ? I brought it here
under orders. Under whose orders ? General
Avery's.. Then under the orders of General Avery,
the Judge Advocate of this Court, you brought
the bullet to the city of Raleigh ? Yes, sir.
What did you do with the bullet ? I showed the
bullet to General Avery and he returned it to me
again? Where is,that bullet now ? I just now
gave it to General Avery, when I stepped in here.
Did you keep the bullet in your possession until
just a little while ago? Yes, sir. When you
brought it up here, you didn't leave it here ? No,
sir, I took it with me again. Since you have
come into the Court this morning you have de-
livered it to General Avery? Yes, sir. Would you
recognize that bullet if you were to see it again ?
I would recognize the bullet, sir. General Ave-
ry will you be kind enough to furnish the bullet ?
The Judge Advocate:
I will not, sir.
The Counsel for the accused :
. I understand the Judge Advocate refuses to
furnish the bullet, whicli we insist is not only
material, but is natural evidence, and we ask the
Court to order the production of 1 hat bullet as a
part, of the evidence for the defence, which is in
the hands of the prosecution. It is requested but
he declines to furnish it.
Counsel for the prosecution :
I have to say on behalf of the prosecution, that
■we have this bullet in our possession, and it shall
be produced before the close of the trial; but for
reasons that will be evident, as I think, to the
Court, and are very weighty with those engaged
in the prosecution, we feel bound, in justice to
the government, to decline to produce it riow.
This Court must have observed—without en-
tering. into a discussion now, to decide where
the falsehood lies—that there has been much
■wilful and corrupt perjury on the part of some
one during the progress' of this trial. It is im-
possible, by any rule of law or of common sense,
to reconcile the whole of this testimony: some
one has lied before God and this Court, wilfully
and corruptly. We do not desire, nor intend as
yet, to enter into any discussion to show where
that falsehood is to be found—this is not the time
for it; but in a trial where it is evident to the
Court that there has been perjury, every precau¬
tion must necessarily be taken upon the part of
the Government to prevent that perjury from be-
ing increased, and further than that—in the inter-
est of truth—to arrive at the truth. We have;no
objection to stating our reasons for keeping back
this bullet. Whether Capt. Tolar fired the pistol
or not whi-cli killed Archy Beebee, according to
his own showing, he was armed with a pistol
that day. It is not in our power to produce it;
we cannot compel him to produce it, the law
giving a man liberty to refuse to testify
against himself; but he can produce it. In
a case into which so much falsehood has al-
ready crept, we are not willing to produce that
bullet, unless he will first produce his pistol.
The Court will see the reason,-*-if testimony
has already been suborned, or even if it has not
been suborned, and we produce this bullet, and
show its size, quality and deseription, nothing
is easier than to suborn witnesses, to prove that
Capt. Tolar wore upon the day of the killing a
pistol which the bullet will not fit. There is our
reason for refusing to produce the bullet, plainly
stated. If Capt. Tolar will produce and prove
the pis to. that he had on that day, the bullet shall
not be kept back a moment; but if we produce
the bullet, it will leave it in his power to pro-
duee any pistol that he pleases, and of course
he may produce one that the bullet will
not fit. We must therefore decline now
to show the bullet. We think a reverence for trulh
demands that the bullet, being in the charge of
the Government, who can have no interest to
persecute or oppress any body, should not be
given up. We here pledge ourselves on behalf
of the Government, before the close of the trial,
to produce this bullet. We think the defence
has no right to demand its production at this
time. The simple and solitary object of keeping
it back is to prevent perjury, falsehood,, and the
misleading of the Court. If any pistol had been
offered—in evidence by Tolar as the one he wore
that day—this objection would not be so strong.
But by producing the bullet now, we leave it in
Capt Tolar's power hereafter to offer in evidence
a pistol of a size that the bullet will not fit. In a
case where the Court must see there has already
been a quantity of wilful and corrupt perjury upon
the part of one side or the other, we think that jus-
tice to the Government, a reverence for truth,
fairness to the different witnesses, white and black,
who have been examined here—all demand of the
Court that they should indulge the Counsel for
the prosecution, so far as to permit them to re-
tain that bullet until they see proper to intro-
duce it. God knows that the Government thirsts
for no man's blood. God knows that we have
conducted this prosecution with a view to con-
demn no man to death, unless he be found guilty
of crime—but that we have conducted it solely
in the interests of justice and with a desire simply
to arrive at the truth. Truth and justice require
that the bullet should be kept back, and I think
the Court will see the propriety of this course.
The Counsel for the accused: "
May it please the Court—I shall not gainsay for
one moment what the Counsel for the prosecution
has said. There lias been eommitted in this
Court willful, corrupt and God-defying perjury,
and there is no other word for it.
There is no chance to reconcile the testimony
in this case, and we have expected to show from
the beginning, and we expect to show now, where
that perjury lies, in part, by this very evidence,
which the government seems disposed to with-
hold. We have relied upon it, and we rely udob
it still. To be sure we have produced no pistol
but the prosecution has put a pistol in our hands,
and they are hound by it. Their witness, Samuel
"convened at raleigh, north Carolina.
259
A. Phillips, has come here upon the stand and
wilfully, solemnly and deliberately sworn that
the pistol which Tolar had on that occasion was
a repeater, some two inches shorter than the pis-
tol which the prosecution has produced.
We expect to produce no pistol here, and we
will produce no pistol here as that which Tolar
had that day ; and we will not produce it for two
reasons; first, that the defendant Tolar has not
shown that he was there armed that day. • He has
not showuthat he had any pistol in his hands that
day. It has been shown toy one of the witnesses
that he had a pistol upon his person, but not one
of the witnesses that he has examined, and not
one of the witnesses that he will examine has
proved, or will prove, that he had a pistol in his
hands. Again, if we should produce the pistol
which lie had there that day upon his person, the
Court knows, and the Court sees, that it. is utter-
ly impossible for us to identify that pistol as the
pistol which he had. The Court sees, from the
course of the prosecution, that they have endcav-
ored to show that Tolar shot this man, and he
shot him with a pistol other than his own; a pis-
tol which was handed to him toy some one else.
The Court, therefore, knows it must be aware of
the fact that i.t is impossible for us to introduce,
and for us to identify any pistol that Tolar might
have had upon that day; but there is evidence, as
I said before, and evidence by which theprosecu-
tion is bound, and thoroughly bound, showing
the size of the pistol which Tolar had. Now, I
state to the Court here, and I state it in the pres-
ence of God, that if that ball is produced, I shall
show, by weight, and by measurement, that it fit
the pistol of Samuel A. Phillips, and that it was
too large to have fitted any pistol which has been
put into the hands of Capt. Tolar whatever.
Yes, there is perjury, and I call for that bullet
that I may sift that perjury. I stand for truth,
and for nothing but truth. If these men are
guilty let them die; but, in the name of heaven,
and in the name of fairness, if they be not guilty,
and if there be any eyidenee which tends even to
show the fact, I call upon that government which
" thirsts not for blood;" I call upon these gen-
tlemen who are laboring in the "interests of
truth;" I demand it of them, in the name of hu-
inanity, that that bullet shall now toe produced,
and if they deeline to do it, I call upon this Court
to order its production. But, says the Counsel
lor the prosecution, the bullet shall be produced.
When shall it be produced ? When the defence
has closed its case ? Why, sir, I will stand here,
at the sacrifice of every thing, until the day of
my death before I will ever consent to close the
defence, until the bullet is produced. We trace
it into the possession of the Judge Advocate.
That evidence is as much our evidence as it is
evidence for the prosecution. It is material evi-
dence for the prosecution. It is natural evidence.
They have got no right to withhold it, and 1 call
upon this Court, most respectfully and earnestly,
as they intend, as I know they do intend, to give
these accused men a fair trial. I call upon the
Court to bring forward that evidence, and that
evidence which will determine where the perjuiy
lies in this case.
The Counsel for the prosecution:
I will only say to the Court, in reply, that the
gentleman's remarks—a great many of them,—
would be very applicable, and of great force, if it
were not for the fact that the prosecution, stand
here pledged, in good time, to produce the pistol
bullet; but they all fall to the ground—it appears
to me, when the Court knows, that in good time,
the bullet will be produced, and is only held in
the hands of the prosecution, because we are de-
sirous to prevent perjury, as we have before said.
There is very strong evidence, on the part of the
prosecution, that Captain Tolar had a pistol in his
hand that day, and it has been shown, on tha
part -of the defence, that he had one about his
person. I think the court sees clearly our posi-
tion. We simply deny this bullet to prevent per-
jury; but in good time it. shall be before the
Court, and they shall see it. We will not only
produce it, but we will produce it in the hands of
the very witness whom the defence has iutroduc-
ed—under the same circumstances that they wish-
ed to have it presented now; and it can be notb-
ing but a captious objection upon the part of the
defence; the pertinacity with which they insist
upon having this bullet now.
The gentleman's threat as to how long he will
stay here before he will close his case is a matter
that has no weight whatever, with me, and I pre-
sume none at all with the Court. That is a matter
about which the ruling of the Court may raise
hereafter. r
The Counsel tor the accused /
One word, may it please the Court.
The Counsel for the prosecution objected :
I understand this is a case in which we are en-
titled to the opening and reply,—we being the par-
ty to show causae why the bullet shall not be pro-.
duced.
The Counsel for the defence:
It is a proceeding on our part entirely, and we
are entitled to the opening and reply.
The Counsel for the prosecution :
I insist upon it, that the ruling is to the con-
trary, in a matter of this sort.
The Counsel for the accused: .
What is the rule then ?
The Counsel for the prosecution:
The rule of practice is this—that upon a bara
motion the rule is as the Counsel states it—but
in a case where a party 6hows cause why evidence
should not be produced, or where he shows cause
upon any other rule served, he has the opening
and reply. Blount vs. Greenwood, 1 Cow. 20.
The Counsel for the accused:
It is a motion for a rule.
The Counsel for the prosecution :
We consent that the Court shall grant the rula
upon us, to show cause, why we should not pro-
dace the bullet.
The Counsel for the defence:
We propose to argue the question. The gen-
tleman assents to the court giving a rule, and now
the question comes upon that ground.
The Counsel for the prosecution :
I insisted upon it that we had the right to opeu
and reply.
The Counsel for the defence thought he was
entitled to the floor.
The Counsel for the prosecution:
I understand this as a bit of professional tac-
tics, if the Court pleases. Upon a motion for a
rule no discussion would be likely to arise—it
would be an ex parte application to the Court
and ordinarily granted as . of course. The rule
would be served upon us, and no discussion
would arise, until we were called upon to show
cause why the rule should not be made absolute—
in which discussion—we, as the party showing
cause, would be entitled to the opening and clo-
sing remarks. That is the ordinary way in which
these questions ought to be conducted; in our
loose practice in this State undoubtedly the mo-
tion for a rule—and the cause shown why a rule
shoijld not be made absolute, are often heard to-
getlier.
I do not desire to continue this discussion, but
I do insist upon it, that the matter has been fair- •
ly'discussed, that we have a right, to close, and
if the Counsel insists upon addressing the Court
rnocekuinas of a military commisaiosr,
being the second on the same side, I shall feel
compelled to reply.
The Counsel l'or the accused:
I only -wish to say to the Court, that they may
bring down a cart load of English books and they
will find that the man who moves for a rule, al-
ways lias the reply—that is the rule of practice
that may be found m every book. Talk about
the "loose laws of practice in North Carolina," I
appeal to the English practice, I appeal to any
practice, and it will be found, a® I said, that the
person moving for a ride o-btakss the rule—the
question before being as to whether st should be
discharged or not—is entitled to the opening and
the conclusion. Suppose, it Is a motion, what is
the good sense of it ? Why, the man that wants-
the Court to act shall, in the first place, suggest
to the Court why they shall act—then counter
arguments being produced 011 the other side,
the person who wishes the Court to act shall have
the right to. reply, whether st be by motion, or
any other thing, if lie wish to put the Court into
action. I have a right, first to move for it, to
suggest x-easons for it, and then after the gentle-
man has responded to. that, I have a right to to-
ply to it. That is the good sense of the rale,
no matter what he called it—a motion or a rule.
We here move that a piece of evidence, that we
think important to us, shall be introduced.
The gentleman talks about tactics. lie rep-re-
eents the United States here, as engaged in a pit-
iful game of push pin, concerning the life and
death of a man, as to whether one bullet, that we
think important to us, and to our defence-, shall
be introduced, and upon a suggested ground that
we have been guilty of perjury. He suggests it
here, before this matter is decided, when the
question is as to how we shall make up a defence
here, what is the amount of our evidence, and the
evidence we shall introduce, to defend our lives
with. He suggests that we have been guilty of
perjury—there has been such an amount of per-
jury here, that it would be unsafe to allow us to
introduce other evidence, in belialf of our lives.
When was- such a reason ever heard, in a Court of
Justice ?
I do not agree with Colonel Haywood, and my
friend Mr. Fuller, as to the amount of perjury
that has been committed. There has been a great
deal of false swearing, but with regard to wilful
and corrupt perjury,"! take issue with them as to
the amount that has been done lierebut wbefli-
«r so or not, the question has to be decided—do
mot- maim our evidence, do not maim our defence,
upon any suggestion, that you may reconsider
hereafter, aud think; unfounded; we have got
enough to stand up against here, any way ; we
have~the whole influence of the United States
Government, against us. It is a government, I
have no doubt, thai don't seek the blood of any
person. Still an humble individual who has to
contend fw the right, against the United States,
has to contend against a great weight, as it were,
but I don't believe it is the disposition of that
government, or of any officer iathe employment
of it, to maim the defence, upon any such sugges-
tion as has been made by the Counsel for the
government. He says this bullet will be intro-
«Sueed all in good time. Good time for whom ?
Good time for the government, or good time for
the prisoner? because there is at present going on
here a genuine contest, not a tame contest, but a
contest about life, and the government is ably
represented and the prisoner lias liis represemta-
tives here, and in that contest we desire to intro-
duce evidence, during the time allotted for me to
introduce evidence, and it is important that we
should be allowed to introduce such evidence as
we consider material, .and not be prevented from
so doing because there has been so much perjury
that they are afraid to let us have a bullet, al-
though it may be material to us, because there
has been, so much perjury committed here.
They won't say upon which side it has been
committed, but there has been so much per-
jury committed somewhere, that they will
not allow us to have a bullet. Suppose the
perjury has beeu commuted upon the side
ot the government, why should they keep the
bullet ? Give us fair play, let us have the
benefit of any testimony that we think impor-
tant, and let the Court consider it; and sf we are
guilty we submit, but we cannot submit volun-
tarily. Whatever we may do, when ordered by
the Court, and we will obey all its- commands,
we cannot submit to close our case until we have
got in all the testimony that we think important
for our prisoners, and we would be false to our
profession if we were to do so. I don't think it
has ever occurred yet, iu any court, that a pris-
oner has been refused to be allowed to introduce
testimony that was obtained on the ground that
it was best for the Government that it be not
produced by him, that it will be produced in
good time by tlie Government, They do not de-
ny that the testimony is material, they do not de-
my that it is material to us, and the only reason
they can give why we should not introduce it is
the very poor suggestion that perjury has been
committed here, on which side they won't pre-
tend to say, although they act upon the supposi-
tion that it has been committed by us. I think
the prisoners are entitled to all the evidence w&
think substantial. - I thiuk that is the rule that a
prisoner be allowed to introduce all testimony
that lie thinks is substantial; and if one of his
witnesses, or two of his witnesses, may have com-
mitted perjury, that is no reason why he should
not introduce another witness who may not com-
mit perjury, and especially such a witness as this
that cannot commit perjury.
The objections made by my Mend Hay wood to
our introduction of this pistol have been an-
swored. We would be very glad to introduce it,
if we could identify it. IIow could we iden-
tifyit? Unless some witness for the prosecu-
tion has committed perjury, that pistol was shot
by Tolar and was passed out into the crowd. I
say unless some witness for the government has
committed perjury, the pistol Tolar shot is not
known to be his pistol at all. Suppose it were
liis pistol, bow could we prove it ? Suppose he
introduced a pistol here that proved contrary to
the theory of that government, that it could not
have carried this bullet, would not that be an ad-
ditioual evidence that he committed perjury.
Suppose, we say, that the pistol we introduce
here is a pistol that would not carry this ball,
would not we be doubly damned as perjured and
guilty, some of us perhaps, nobody knows who,
of subornation ®-f perjury ? We think—of course
we have no personal knowledge of it—that the
pistol the prisoner had on that day would not
have carried that bullet. That m our impression,
that is our beliefbut we are totally at sea for
evidence by which to identify that pistol. Say
the pistol is at Mr. Tolar's- house—it was proved
by Mr. Ed Powers that be-hadn't really carried a
pistol. Suppose we produce a pistol from liis>
house, what evidence would that be to the Court
that it was the pistol he had on that day ? What
is the evidence resorted to to identify this bullet?
It has been sealed up from that time in a manner
to identify it from all doubt. How .can the pis-
tol be identified by any analogous manner? If
the pistol carries the ball, the government will
admit it to be the pistol; if it would not carry
that ball, then I suppose a subornation of perjury
2G1
would be laid to our charge, and we would he
held to the minutest evidence of identity: and it
is impossible for us to supply it. I say it would
be impossible that we should be able to intro-
duee all those tests of identity which it would be
required upon this head.
It is not for the court, it seems to me, at this
stage of the trial, to decide whether or not this
testimony is important for us, we must make out
our testimony at our own responsibility, and un-
der a very grave responsibility indeed ; and the
government desires that we should make it out
fully; and I have no doubt that the gentlemen
who compose this court desire if these men are
innocent, that they should go away untouched ;
and they desire that we shall have the benefit of
whatever testimony that we think important to
their cause. It is not to be left with the gentle-
men who represent the government to say, when
we shall or shall not introduce testimony, and it
is not for them to introduce important testimony
when we have closed our case.
I think the Court will not be satisfied hereafter,
upon reconsidering this matter, if it seemed to
them they had made a mistake in refusing us per-
mission to introduce certain testimony, that we
desire to because of the general impression,
which may impress their bosoms that there has
been perjury committed, in the course of the de-
fence.
This case has not yet been argued, and the
Court has not made up any opinion about it, it
the course of trial is as it usually is in civil tribu-
nals, when the Judge warns the jury that they
ure not to make up any opinion of the case until
its final close; I take it therefore, that the Court
is as untouched with this testimony as it is possi-
ble for them to be, until we have closed our case
and the government has closed its case; and that
they will not maim our defence. They will do
nothing I say to injure the defence of these par-
ties upon a suggestion coming from the govern-
ment, that there has been a wholesale amount
of perjury commited here.
The Counsel for the prosecution:
If the Court please:—
The Counsel for the accused :
I will object now myself.
The Counsel for the prosecution :
I submit it to the Court,—whether they will
hear me or not. I iusist upon it that on a rule
to show cause why we should not produce this
bullet—the party that shows cause has a right
both to open and close; and we are the party
who are called on to show cause. Blount vs.
Greenwood, 1 Cow. 20.
The Counsel for the accused :
It is a simple question of the introduction of
testimony.
The Counsel for the prosecution:
It is for the Court to decide.
The Commission was cleared for deliberation
and after some time so spent, the doors were
reopened and the Judge Advocate said:
The Commission decides that this motion by
the prisoner's Counsel, is in the nature of a rule
to show cause, served on the prosecution and
that as the argument was opened by Mr. Hay-
wood he has the right to close to it.
Counsel for Prosecution:
I would say to the Court, that the Counsel for
the defence, having stated their inability—or at
least their unwillingness—to introduce any pistol
in evidence as the one which was in the hands of
Capt. Tolar, on the day of the killing, the point
before us assumes a different aspect from that
which it presented on the opening of the dc-
bate. In recurring, however, to that subject it
occurs to me to t-ay, that not only is it iuevi-
dence by E. P. Powers a witness for the defence,
that Tolar had a weapon on his person that day,
but the witness Morgan who was introduced for
the defence and afterwards examined by the
Court, expressly swore that Tolar had a pistol
in his hand. Not only then did he have a pistol
on him, but he had it in his hand, by the showing
of their own witnesses, by whoso evidence the
prisoners arc bound.
The great object that we are aiming at is truth;
justice' to witnessess, reverence for truth, and the
arriving at a just and legal conclusion in this'
cause are our guides. Now, I say justice to
witnesses, a due reverence for truth, aiid the ar-
riving at a just and legal conclusion, all demand
that the government should he allowed to pro-
duce this" evidence in its own good time. The
gentleman has eloquently exclaimed here,—
"In good time—for whom? Not for them,
for they want it now—but that we mean in
good time for the government." Why, if it
please the Court, we have no interest in the con-
viction of these men if they be innocent,—tho
government has no interest whatever in their
conviction, if they are innocent meu. We say it
will be produced all in good time for the pur-
pose of ascertaining the truth,—all iu good
time for those who wish to arrive at truth,—■
all in good time for those who wish to do
justice in this cause—all in good time to give
the Court the information that is essential to
their arriving at a just and legal decision. Now,
I confess that my ingenuity, and I presume that of
the Court, has been taxed to the uttermost, to
ascertain what possible difference it can make,
if this testimony be ultimately introduced, wheth-
or it be offered now, or after the prisoners liavd
closed their testimony; and we think there is
good reason why it should not be produced now.
I have not suggested who the perjured persons
are to the court, nor have I attempted, as I
think one of the Counsel for the defense did, to
state where the perjury lies. Bnt there has been
perjuiy; and whether for the government or
the defense this Court are not interested, to pro-
tect one set of perjurers nor another; but they
are interested in arriving at the truth and doing
impartial justice—and in coming to a just and le-
gal decision in this case. The best way to ef-
feet these ends is to retain this testimony in tho
hands of the government officers, who cannot
possibly, in decency, be presumed to desire the
conviction' of these men, unless they be the
guilty parties.
Now, almost all, if the Court please, that has
been said by the Counsel for the defence, for the
purpose of inducing the Court to compel the
Judge Advocate to produce that bullet, is of no
weight, for when the Court thinks lit, ultimately,
it can be and will be produced. It is kept back oil
the part of the prosecution only to prevent more
falsehood,—to prevent even an attempt at false-
hood. It is held back, with the pledge on the part
of the government, that it will be produced in
good time. Now, I take it that this Court will not
compel those prosecuting on behalf of the gov-
eminent to show evidence which they think is im-
proper at this time, when they profess themselves
willing to produce it hereafter, and in the hands
of the very witness whom the defence now have
on the stand. I caiinot, for the life of me, see
what injustice can follow this course. The gen-
tlemen think they want all the help they can get
for the purpose of rescuing these men from the
hands of the government. Undoubtedly it is
true that they do need all the help the}7 can get,
and it is the duty of the government to see to it
that the persons conducting the case on its be-
half do .produce at gome time, this testimony.
2«2
P1W>CEE!DINGS OF A MILITARY COMMISSION,
But if the Court is sure that this testimony will
be here when necessary, what more can they ask ?
Neither the one gentleman nor the other have
shown that either the cause of justice or their
own cause,—which to my mind is not the cause
of justice,—will be injured by the production of
this testimony at a later date. Their whole argu-
ment is based upon the assumption that the
government intends to keep back this testimony,
an assumption entirely baseless.
Nor, if the Court please, is this any strategic
movement nor any game of push-pin conducted by
the Judge Advocate and myself on behalf of the
government. It is a serious business, involving
a man's life, and we do not intend to raise any of
these collateral issues that are of trilling import-
ance. We conceive it, however, to be of vital im-
portance to keep back this testimony for the pres-
ent. It is evidence that cannot lie, as witnesses
can,—and we wish to bring it before the Court at
such a time that it will be impossible for evidence
to be subsequently introduced to make it lie.
We have produced Phillips' pistol, sworn
by him to be the pistol he had at the time; it is
now before the Court. The bullet is iu our pos-
session, and cannot be changed, unless we are
guilty of corruption ourselves. We therefore—
even if we desired it, which is evident to sup-
pose—cannot make it lie. But the production
of the bullet, at this stage of the proceedings puts
it in the power of the prisoners to show tnat they
had no weapon to suit that bnllet. Does not justice
to the government, does not a reverence for
truth require that we should hold it back ? Do
not the Court see that the defence cannot
suffer any possible harm by keeping this testi-
mony back, if it is ultimately brought before
them ? By the production of that test imony now,
an inducement to perjury will be held out. We
have the pistol that Phillips had : the government
says that Phillips did not shoot the man and that
Tolar did. If the bullet fits Phillips' pistol when
produced, it must have its weight; and it is impos-
sible for us, by keeping it back to the latter part of
this trial, to change the state of facts so far as Phil-
lips is concerned. It seems to me that the Court
in its sound discretion,—takinginto consideration
the circumstances of the case, ought not to compel
the Judge Advocate and the prosecution to pro-
duce that bullet here before they see fit to do so.
We submit to the Court that the prosecution
ehould not be compelled to produce this testi-
mony at this time,—it appearing upon the record
that they have pledged themselves to produce it
before the close of the trial.
The Commission was then cleared for delibera-
tion, and after sorqe time so spent was re-opened,
when the Judge Advocate stated that the Com-
mission declined to order the Judge Advocate to
produce the bullet at this stage of the proceed-
ings.
Examination resumed:
Counsel for accused:
Sergeant, how loDg did you have that bullet in
your possession before you first brought it to the
City of Raleigh ? Two day sir. Did you show it
to any one while in your possession ? I showed
it to one man sir. What is his name ? His name
is Watson, he lives in Fayetteville. Have you seen
him here to day ? Yes, sir. Did he weigh that
bullet ? He requested me to show him the bul-
let, said he would like to weigh it. And he
weighed it? Yes, sir. Did you ever deliver him
but one bullet ? Only one sir. And that was the
identical bullet which came out of the skull of
Archy Beebee? Yes sir. And no other? No
other.
Cross examination, by Counsel for prosecution.
Sergeant, when was it you let Watson have
this ball ? The day we took the ball out of the
man's head. Where? At our quarters. Did he
have his scales along with him ? Yes, Bir. He
took them out and weighed the bullet ? Yes, sir.
Did he tell you what it weighed ? No, sir.
Did he have any other bullets ? I saw no other.
After he weighed it he returned it to you, and
then left? Yes, sir. It didn't go out of yonr
hands until you delivered it to the Judge Advo-
cate? No, sir. And afterwards delivered it at
the hank, and took it from there ? No, sir.
Waltek Watson, a witness for the defence,
having been first duly sworn, testified as follows :
Examined by the Counsel for the accused:
What is your name ? Walter Watson. Where
do you reside ? In Fayetteville. How long have
you resided in Fayetteville? Five years last
April. What is your age ? Thirty-one years last
September. What is your business? I am a
gunsmith. How long have you been following
the business of a gunsmith? I was apprenticed
when I was eleven years of age. Did you serve
a regular apprenticeship? Yes, sir, seven years.
Where ? In the city of London. Have you been
following the business ever since your appren-
ticeship'was concluded? Yes, sir. Have you
had any other business ? No, sir, only the bnsi-
ness connected with gun making. Are you fa-
miliar with small arms ? Yes, sir. Are you fa-
imliar with repeating pistols? Yes, sir. Did
you ever see a pistol in the hands of Calvin W.
McKay, a brother-in-law of Sam A. Phillips? I
did. When did you see that pistol ? I believe it
was this day, three weeks. What kind of a pistol
was that? It was an army Remington pistol.
Do you think you would know that pistol, or
one of the same patent, if you were to see it
again ? Yes, sir.
The Judge Advocate hands witness a pistol.
Witness, I believe that is the pistol; it is a pis-
tol like that anyhow, the same size and calibre.
What is the calibre of that pistol ? Forty-four
one hundreths of an inch in calibre. When you
saw that pistol at the time you have described,
was it charged? It was charged, there were five
charges in it. It was not fully charged; one of
the chambers of the cylinder was not charged,
and five were ? Yes, sir. Did McKay bring that
pistol to you? Yes, sir. For what purpose?
To unload it. Did you unload it ? I did, sir.
How was that pistol charged at the time McKay
brought it to you ? Three chambers were load-
ed with buckshot and patching, and two with
the regular bullets. How many buckshot were
in each chamber ? One buckshot with patching
around it, and two chambers loaded with regular
bullets. And one chamber empty? Yes, sir.
How many pieces of patching were around those
buckshot? I don't know, I didn't count them.
Could you produce those charges or any of them?
I can produce two of them. What has become
of the others? I fired them off. Well, sir, pro-
duce those two, if you please ?,
Witness produces the charges.
Those are the two buckshot charges which
were contained in the pistol? Yes, sir. And
this is the patching that wa^ around it ? Yes, sir.
Just as you withdrew the loads from the pistol—
you say that the other three charges that were in
the pistol, you discharged ? Yes, sir. One of
those was a buckshot charge. Yes, sir. Why
did you fire them off instead of withdrawing them
as you withdrew these ? Because it would be a
difficult matter to withdraw the bullets in a hur-
ry, he wanted me to fire them all—I wouldn't do
it because they were loaded wrong. Were those
loads freshly put into that pistol ? No, sir. How
long, in your opinion, had those loads been in
the pistol? 1 can't say sir, the pistol was rusty,
CONVENED AT RAAKIGH, NORTH CAROLINA.
203
and the chambers of the cylinder were rusted, and
the caps wouldn't explode; 1 had to cut them off
they were rusted so; the detonating powder, under
the cap got rusted, I suppose, and I had to put on
new caps before it would explode. Were the
caps upon the nipples of all the chambers of the
pistol? Yes, sir, Was there a cap upon the
chamber which had no load in it? Yes, sir.
Had that cap ever been exploded? Yes, sir.
Was it an old cap or anew oue? An old one,
made in the shape of a , military cap ; what we
commonly call a " pistol hat" cap. Were these
caps not exploded ? No, sir, they were some of
what we call the "6. D." cap, and the others
were the hat caps. So you found these chambers
charged with old charges, judging from the rust
which was around the chamber and around the
cap; you found on the discharged chamber, a
cap which had been exploded and you tound all
the caps were coroded, and they would not ex-
plode the powder?. No, sir, tliey would not ex-
plode, the powder in the tube got damp, and it
corroded; an^ the caps exploded but wouldn't ex-
plode the powder, that is how I found out that
the cap ou the exploded chamber had been explo-
ded, because the other five exploded, but would
not explode the powder. What was the charge
of powder in these different chambers in that
cylinder judging from the report of those barrels
or chambers that you fired; and from the pow-
der that you took out after the withdrawal of
those too charges you have produced ? The
charge was very small, because I could scarcely
see the balls in the pistolI could not tell until
I looked at it very minutely, what kind of balls
they were, or what kind of leads. So the charges
were small and insufficient? Yes, sir. They
were not the regular charge? No, sir. Are you
acquainted very particularly with the range of
pistols? Yes, sir. Are you acquainted with the
range of such a pistol as you saw just now ? Yes
sir, up from a short distance to a hundred and
fifty yards; I have never tried them over that, be-
cause I have uever had the range. Are you ae-
quainted w.ith the range of Colt's pistol? Yes,
sir. How many forms of the Remington pistols
do you know of? The army size, the navy size,
the pocket pistol—let me see, 1 know of five
Remington repeating pistols. Which is the
largest? The army pistol; the one of forty-
four one hundredths of an inch calibre. What,
is the caliber of a Colt's pistol ? Thirty-
6ix one hundreths of an inch. At the distance
of from two feet to ten feet, or fifteen feet,
we will say up to the distance of twenty feet,
from the distance of one foot to twenty feet from
the object, what would be the penetration of the
bullet fired from the army Remington pistol,
with a sufficient charge of powder ? Well, sir, it
would not gain its velocity under twenty feet.
What would be the penetration of a pistol of
that size, discharged at an inch board ? It
would go through au inch hoard, not through a
very hard inch board through, at that distance.
But through an inch board of ordinary hardness
at the distance of one foot? Yes, sir, I don't
think it would go through a green pine, or tur-
pontine pine, as the call it, at that distance, I
have never tried it because it would be dangerous
to stand behind a pistol atone foot. What would
be its penetration at two feet and a half? It"
would be the very same, as at one foot. And its
penetration at ten feet ? It would be about the
same, because the pistol ball would not have gain-
ed any velocity from the force. So from one foot
up to ten feet a bullet fired with a sufficient charge
of powder, from a pistol of that size and that
manufacture would go through an inch board of
ordinary hardness—entirely through it ? Yes, sir.
Then at a greater distance than ten feet woubl
the penetration be greater or less ? Greater over
ten ieet. Then bow would the penetration be af-
f'ected at short distances with the charge of pow-
dcr less than what you stated to be a sufficient
charge ? It would have less force. So while that
would be the penetration with a efficient charge
of powder, if there was less than a sufficient
charge, how would it he? If there was not a
charge of powder it would have less penetration.
Did you ever see a bullet in the hands of Sergeant
Kenstler who has been examined here to "day?
I have. Where did you see it, and under what
circumstances ? Three weeks ago to-morrow
night. Where did you see it? At the " Dobbin
House," FayetteviLle. Under what circumstan-
ces ? I merely wanted to see the bullett. Well,
sir, did you handle that bullet ? I did. Did you
weigh it sir? 1 didn't weigh it on Saturday
night but I saw it agaiu Sunday morning, and
then I weighed it. You saw it first Saturday
evening and you handled it, audyou saw it next,
on Sunday morning and you weighed it? Yes,
sir. Iu what kind of scales did you weigh it,
have you the scales with you ? I have. Are they
accurate ? 1 believe they are, they have been
tested. What was the weight of that bullet which
was in the hands of Sergeant Kenstler ? I believe
it was two drams, two scruples less one peny
weight. Could you tell sir, from any thing that
was about that bullet—what was the condition of
that bullet, was it flattened or battered, or iu its
original form? It was battered. Could you,
from your knowledge of forms tell whether it
had, originally been a conical ball or a round
ball ? I believe I pould. Which had it been ? A
round ball. What was the caliber ? Forty four,
one hundredth of an inch. Would that ball have
fitted that pistol which has been shown you to
day ? Yes, sir. Would it have fitted it as an air
tight bullet ? Yes, sir. Is it the class of bullet
for a pistol of that size ? Yes, sir. How does
the weight of the bullet that Sergeant Kenstler
showed you, compare with the weight of a bullet
of that caliber, put in the scales, one on one side
and one on the other ? Well, there is a small dit-
ference between even new bullets of perhaps one
two or three penny weight, the difference between
the battered bullet with the matter about it, and
the new bullet, was about one scruple less one
penny weight. What did that foreign matter
seem to be? Corruption. That bullet which
Sergeant Kenstler showed you, weighed a little
more than the new round, bullet of that caliber ?
Yes, sir. And what did you say the difference in
weight was ? About one scruple less one penny
weight.
Counsel for the proseeution.
Which was the lightest bullet? The new bul-
let. And this was heavier, by one scruple less one
penny weight ? Yes, sir.
Direct examination resumed:
Could you tell whether the foreign matter was
sufficient to have accounted for that difference in
weight? Yes, sir, I discovered a piece of sand
in it, which looked like a small piece of flint
stone. And that you say would account for the
difference.in weight? Yea, sir. Would the ball
which Kenstler showed you be too much, or too
small, or the exact size for Colt's navy repeater,
or any other navy repeater ? No, sir, it is much
larger than the bullet of the navy repeater. Is
there no 'repeating pistol made by any manufac-
tory smaller in 6ize than the pistol which has
been shown you, carrying a bullet of the same
weight as a Remington pistol ? Do you mean
the size of the calibre or pistol? I mean the
size of the pistol ? No, sir, not to my knowl-
edge. An inch or two shorter? No, sir. Is
264
PROCEEDINGS OF A MILITARY COMMISSION,
there no repeating pistol manufactured that you
have any knowledge of that is one or two inches
shorter than the Remington repeating pistol
which carries a bullet of the same ealibre ? No,
sir. Did you ever see more than one bullet in
Sergeant Rentier's bauds ? No, sir. And the
only one you ever saw was the bullet which you
have weighed and of which you speak here to-
day'? Yes, sir. Do you think you would know
that pistol if you were to see it again ? I believe
1 should if it has uot been tampered with or al-
tered in any way.
Cross examination by the Counsel for the pros-
ecution:
You say you are familiar with the subject of
lire arms scientifically ? Yes, sir, I believe I am
from my experience. You have been at the bu-
siness from the time you were eleven years of age
until now? Yes, sir. Did you put any mark
upon that pistol that McKay left at your store?
I did not. How came you to keep those charges
Irom the pistol? Well, sir, I believe most every
person in Fayetteville was interested in this trial,
and I felt a little interest in it, and wanted to find
out who had done it, that is the reason. Why
didn't you keep them all ? I should have drawn
them all out, but that Mr. McKay was in too
great a hurry, he wanted it at that moment. He
didn't ask you to give him back the charges?
No, sir. He stayed in your store there until you
got through? Yes, sir, I asked l)im to leave the
pistol, and told him I would do it in a hour or
so. You wanted to preserve them all did you?
Yes, sir, but he was in too great a hurry, and I
only got a chance to take out two; I believe' 1
should have tired them all off if the pistol had
been loaded right, but it was not; the thought
didn't come into my mind until I found that it
was loaded wrong. "Nobody suggested it to you?
No, sir, when I went into the back yard to fire it
off, I had to come back, as it was loaded wrong.
What was the trouble ? Sometimes the powder
of one chamber yill get into the others, and they
will all go off together. You thought at first to
shoot them all off, and the second thought was
that you Would preserve them, did anybody sug-
gestittoyou? No, sir, besides tlicy were very
much agitated when I asked them to leave it.
Did he tell you why he didn't shoot it off him-
self? No, sir, but everybody mostly in the town
brings their pistols tome to unload; but he re-
pented of it afterwards that he didn't unload it
himself. How old is that little son of Phillips',
that manifested such agitation ? I believe about
fourteen years of age. How did they show
their agitation—were they pale and trembling ?
Well, by their voices, and the answers they made
me, and when I asked them to leave the pistol.
They refused to leave it? Yes, sir. Did they say
anything about being called upon to present the
pistol here? No, sir, they whispered to me, and
there was no occasion of it, there was nobody in
the shop. One said (wrhispering) I want you to
unload this pistol for me. Did they whisper in
your right ear or left ear ? I can't say—in fact
they didn't whisper in my ear at all: I was sit-
ting down at work, at the bench, at the time;
they had it covered up in a paper in a basket,
covered over with cloth. What sort of a basket
was it? I call it a linen basket. Did it have a
corner? I can't say exactly, but I distinctly
saw the cloth, and he took the pistol out
out of the cloth. You started out then to unload
it and found" that some of the bullets were too
small, and went back and said it was dangerous
to lire off, as one barrel might endanger the o-th-
ers—and then it was that you noticed their trep-
idation? Well, I noticed it at first, but not par-
ticularly at the time, because 1 thought perhaps
the order of General Sickles might make people
a little scared, I took out two loads and laid
them down on the bench, it was not dangerous
to fire off the one with patching, or because the
other two bullets were tight. In the course of
this investigation you noticed what sort of bul-
lets they were—that they fitted exactly. Yes,
sir. Could you tell whether they were conical
or round bullets ? I have tried to think of it lots
of times, but I can't say for certain. Now that
is very unfortunate, as you remember so much
of the rest about it. You say the bullet in Ken-
stler's hands was rotind, but could not say if the
others were, although you had given so much
investigation. The bullets were so much down
in the cylinder that it was a very hard matter.
Didn't it strike you as you were so anxious about
this case, that the bullets were the most iinpor-
taut part about the load? I didn't know, sir.
Have you any decided impression about the kind
of bullets? i have not. What is the difference
in weight between the conical bullet and the
round bullet, which is the heavier? The conical.
What is the difference now in a Remington pis-
tol of this kind ? It would take thirty-two of
the elongated bullets to weigh a pound, and for-
ty-eiglit'of the round bullets. You have tried to
refresh your memory, as to whether these bullets
were round or conical, have you never expressed
your opinion to any one? No, sir, in regard to
the bullets I have never mentioned it to any one.
Have you ever mentioned to any person that you
could not tell whether they were round or
conical? No, sir. Not to any human being alive,
not even to the Counsel in this case? No, sir.
The Counsel asked you how long that pistol had
been loaded—can't you form any conception ? It
had been loaded for some time; I know by the
rust, and by the powder in the tube getting dam-
aged so that the detonating of the caps would
not fire it. The only answer I could make would
be that the pistol had been loaded for some time,.
it depends upbn how the pistol had been kept,
you can keep a pistol in a dry place, and perhaps
fire it in a year. You can only say that it might
have been loaded a month, two, three, or six
months, but you can't say exactly, or give any
opinion upon it? No, sir. It was not freshly
loaded ? No, sir. The changes you took out of
this pistol were very small ? Yes, sir. Are you
certain you got the whole charge out? Yes, sir.
I have a tool on the bench for that purpose. You
preserved the powder ? No, sir. It struck you
it was of importance to preserve those bullets,
but nothing struck you about preserving the
powder, so the size of the bullets, and the quan-
tit-y of powder, which were matters of very con-
siderable importance, were matters of which you
cannot speak; and you did not preserve them,
except that you saw the load was a veiy small
one—do you mean it was half a load ? Well per-
haps it was a little less or a little more than half.
Did you notice, when you fired off the pistol, the
chambers that had bullets in, whether they sound-
ed as if they were faintly loaded ? Yes, sir, the
explosion was not very loud or clear. And both
went off with about the same report ? Yes, sir,
except the one with patching on. Did that make
more noise? No, sir, less, because of not being
air tight. And there was a difference in the
chambers that had the bullets in them, and the
buckshot—the bullet one's made the loudest re-
port, and the report of the two was exceedingly
similar ? Yes, sir. What did you fire at, any oh-
ject ? I have a little target for the purpose.
What became of them, did'you notice whether
they penetrated the wood ? I did not go to see-^-
the target is twenty-five yards from where I
stood to fire off the pistol ? Do you think it was
CONVENED AT RALEIGH, NORTH CAROLINA.
265
far enough to get its impetus on ? Yes, sir, about
that distance. How did the bullets do with re-
gard to your target ? I didn't look at it. Is it
possible to get those bullets ? No, sir, it is not
possible to get them because I have tired off so
many hundreds, and there are so many hundreds of
loads there that I could not tell one from another
now. It seems to me that by giving only a part
of the information to us you make us only the
more muddled—you can' t give us the bullets, nor
any description, as to whether they were conical
or round? J can't say for certain. You were
speaking about the size of these different pistols,
you say there is an army pistol that has a caliber
of forty-four—what is the next size ? Thirty-six.
Is there not a Colt's repeater that is larger than
the navy repeater ? No, sir, the regulation of
the army and navy both in England and America
' is forty-four and thirty-six. Yes, but you speak
of Colt's navy pistol being thirty-six calibre?
Yes, sir there is a caliber forty-four Colt's army
pistol.' So the caliber of the army pistol, wlieth-
cr Remington's or Colt's, is the same ? Yes, sir.
You were speaking just now that in firing a Re-
mington, the bullet did not get its impetus, until
twenty feet, or yards ? About twenty feet. Is it
the same with the Colt's pistol ? Yes, sir, it de-
pendsupon how you hold it. So that a Colt's pis-
tol presented very close to its object would not get
its impetus on either? No, sir. You say it was
three weeks ago, or will be three weeks to-mor-
row, when you saw this bullet in the hands of
Kenstler? Yes, sir. You saw it at night! Yes,
sir. How came you to see that bullet. I had a
wish to see it. Didn't a 113' body suggest it to
you? No, sir. Who did you say that you in-
formed that you had seen it? James McRae.
Did he never speak to j'ou before? No, sir.
How soon did you tell him, after you seen it ?
The next day morning. It was on Saturday you
saw it, and you told him about it 011 Sunday morn-
ing? As near as I can recollect I told him on
Sunday morning. How late ? About nine o1-
clock, when the post office was opened. At what
time in the evening was it-j'ou saw the bullet?
Saturday evening about eight o'clock. You saw
it iu the possession of Sergeant Kenstler ? Yes,
sir. At his barracks ? Yes, sir. You went there
and asked him to show it to you ? Yes, sir. Did
he produce it at once ? Yes, sir. Did he tell you
that there was some objection to show it? No,
sir. Did he show an unwillingness to produce
it? No, sir. You then took it in your hands ?
Yes, sir. And you swear that, thdt bullet was a
round bullet ? I don't think . But you
swore in your examination in chief that it was a
round bullet, and not a conical one, now I want
to know whether that bullet was round, or coni-
cal ? Well I think I can swear that it was a round
bullet, and put up with the chances. Kenstler
showed no unwillingness to show you the bullet?
No, sir, Mr. Brandt accompanied me on his way
home, and he spoke to Sergeant Kenstler, in Ger-
man, and what he said I don't know. Who is
Mr. Brandt? A gentleman in Fayetteville. What
is he ? A dry goods merchant, I was walking
with Brandt, lie is very well acquainted witli
Kenstler. Did Brandt go in with you to see Ken-
stlcr? Yes, sir. He had a few words of con versa-
tion ? Yes, sir, I spoke to him, and Mr. Brandt
did, and what Mr. Brandt said to him in German
I don't recollect, I don't think he said anything
about the bullet though. Why ? Because he is
so disinterested about it. You believe he was
perfectly disinterested, do you mean by a person
being disinterested they don't care who did it?
Yes, sir. Mr. Brandt spoke to Kenstler when
you went in together ? Yes, sir, and Kenstler
turned to me, and said, do you want- to see that
bullet, and I said yes, I would very much like to
see it, we walked up to his quarters and came
back again. You went up to his quarters for the
purpose of seeing it? Yes, sir. You were to-
gether first at the " Dobbin House," and you
procured Mr. Brandt on account of being a
German ? No, sir, I did not particularly
for that purpose, 1 was walking down with
him. and told him I would like to see the
bullet. How long had Brandt left your society
and that of Kenstler before you went to Kenst-
ler's quarters to see the bullet—did you leave
Brandt at the "Dobbin House" ? I went there
and he was talking with the Germans. I want
to know whether you and Brandt didn't go to-
gether to Kenstler's quarters? Yes, sir, we had
to pass the "Dobbin's House" And then you
and Brandt and Kenstler went up to the quarters?
Yes, sir. You then took it in your hands ? Yes,
sir. And you returned it? Yes, sir, it was in a
little round box. You noticed it had a good deal
of matter on it, and a piece of sand ? Yes, sir.
You mean a large grain of sand? Yes, sir. While
speaking of weights—is there not a difference of
weight in different leads—is there not a great
deal of uncertainty in weighing a lead bullet, ac-
cording to the number of times the lead is mel-
ted. Yes, sir. That according to the number of
times you melt it, it differs very much in weight?
Lead and pewter, yes, sir, It is a very uncertain
test, and calibre is a better test than weight? Y es,
sir. As it is melted more and more frequently,
it grows heavier and heavier ? Yes, sir, the more
j'ou refine it, the more it is made heavier, because
all the dross will be out of the lead then, and it
will be nothing but pure metal, ' A bullet moul-
ded in a hot mould and suddenly turned out into,
the cold, will be less ? Yes, sir. What would
be the difference between a bullet made in a cold
mold and in a hot one ? I can't say, but it will
make a slight difference, perhaps a pennyweight
or two in a bullet. You say your scales were
apothecarj''s scales ? Yes. Well, sir, j'ou went
to see Mr. McRae this morning and told him you
had this interview with Kenstler—did you meet
him at the post office? Yes, sir. He was the
man who suggested to you to t'ake the scales and
weigh it? No, sir, I had doue that alreadj'. You
had done it before you saw McRae? Yes, sir.
You saw him early ? Between nine and ten—I
believe it was just nine. What time did you go
to Kenstler's ? I think about 8 o'clock. Did any
one suggest to jrou to weigh that bullet—who was
it ? YVell, I am not sure whether Mr. Lauder
did or not, I believe Mr. Lauder did though.
When did the suggestion strike your mind that
you had better weigh the bullet ? After I had
seen it. And you went about eight o'clock Sun-
day morning? Yes, sir. Was there any difficul-
ty then about seeing it ? He could not show it
to me then on account of drilling his men or
something ot that kind; I went to Mr. Hyde's;
he brought it down to Mr. Hyde's store. I11 the
same building? Yes, sir. Mow much did you
say it weighed? Two drachms, two scruples, less
one pennyweight. Now, do you know what the or-
dinary weight is of a conical bullet used in a Colt's
navy revolver? Between two drachms and a half
scruple, aud two drachms and one scruple. Now,
how much would, the round bullet in a Colt's
navy weigh ? I don't know exactly,—there are
eighty-six round bullets to the pound. Now, can
you tell me the ordinary weight of a round bul'et
in an army size; I suppose the round ball for
Colt's army and Remington's army is the same
size? Yes, sir. Now, what is the weight of a
conical bullet used in an army revolver ? Some-
thing over three drachms, sir; let me see .
How many of them to a pound ? Thirty-three,
PROCEEDINGS OF A MILITARY COMMISSION,
sir. Then a pound divided by thirty three would
give the result, eh? Well, they don't go by
apothecary's weight in dividing these balls, they
say sixteen ounces to the pound—apothecary's
weight is twelve. W hen you speak of a certain
number to the pound you mean to the pound
avoirdupois ? Well, sir", it is easily reckoned up.
As I understand you, and put me right if I am
wrong, one pound avoirdupois of lead ought to
make thirty-three conical bullets for an army re-
volver, and the same amount of lead, avoirdu-
pois, ought to make forty-four round bullets tor
the army revolver? Yes, sir. Now, how is it;
one pound of lead will make eighty-six round
bullets for the navy revolver, and how many
conical ? Fifty, I believe, conical for the navy,
and eighty-six round. Fifty for the navy, is there
that much difference ? Yes, sir. You say one
pound of lead will make ? Well, sir, I be-
lieve it is fifty of the elongated and eighty-six
round bullets for the navy pistol. Well, now,
these weights that you were speaking of when
you spoke of the bullet that was in Kenstler's
possession, were not by avoirdupois at all, but by
apothecary's weight ? Yes, sir. So the compari-
6on, according to these calculations, would not
do at all ? No, sir, there are four onnces in the
pound difference. You never weighed them by
avoirdupois scales? No, sir. And don't know
what they weigh by that system? No, sir.
Have you no method at all by which you can take
the calibre by measurement ? No, sir. Did you
use any of these tests upon it? Not upon the
battered bullet. I understand you to say that by
apothecary's weight, this bullet you saw in the
possession of Kenstlcr weighed two drachms,
two scruples, less one penny-weight ? Yes, sir.
That was weighing it, however, with all this ex-
traneous matter on it ? . Yes^ sir. Did you not
say that you weighed another bullet along with
it ? No, sir. I understood you to say that you
weighed some other bullet afterwards to see what
that weighed? Yes, sir. Where did you get it?
Out of my shop. You took it out by chance ?
Yes, sir. To what sort of pistol did that belong?
An army pistol—calibre forty-four. In these
same apothecary's scales ? Yes, sir. When you
went to Kenstler's on Sunday morning, you
carried both conical and round bullets of the
army size with you ? Yes, sir. Any of the navy
size? No, sir. Did you weigh the round bullet
of the army size in these same apothecary's scales?
Yes, sir. What did that round calibre forty-four
army size bullet Weigh ? It weighed less than
the battered bullet did, about a scruple less one
penny-weight. The round bullet calibre forty-
lour weighed less than the battered bullet by one
scruple diminished by one penny-weight ? Yes,
sir. What was the actual weight of the new bul-
let, calibre forty-four? Well, sir, about . I
don't want you to say about, did you weigh it?
Well, I didn't take any particular bullet; you
can't get two bullets to weigh alike. Well, but
I understand you to say that you weighed a round
bullet, calibre forty-four, and took the difference ?
I did not take the difference, I haven't learnt all
this by heart, I am only stating—. You say it
is one scruple diminished by one penny-weight ?
Yes. The new round bullet weighed less than
the battered one; what was the actual, positive
weight of that new bullet,—you must have got
the weight of each before you could tell the dif-
ference ? Well, but there are no two bullets that
will weigh alike. But you weighed one ? Yes,
sir. What did that weigh ? I don't know exact-
ly to a hair's breadth, but I know that they
weighed what I have said; I'don't speak posi-
tively, I just tell you what I think now. I
thought that was by admeasurement and weight ?
No, sir, I am not talking positively at all about
it. Eh, but you were speaking with certainty of
the weight of the battered bullet, were you not ?
Oh, yes. Did you take a note of it ? No, kept
it in my mind. You say the bullet you got from
Kenstler to weigh—weighed two drachms, two
scruples, less one penny-weight, is that from ac-
tual admeasurement? It is the exact weight.
Of that battered bullet ? Yes, sir. You weighed
that on Sunday? Yes. Now, yon weighed at
the same time a round bullet, calibre forty-four,
I want to know with the same exactness what
that weighed ? .The new bullet weighed two
drachms, one scruple, less a penny-weight, I be-
lieve, to the best of my recollection. Can't you
speak of your own knowledge, did you weigh it
in the same scales ? I did. Can't you tell what
it weighed exactly, or can you not ? I believe —.
I don't want belief; if you can't tell me correct-
ly I don't want you to guess it; you say you did
weigh a round one; you tell us the difference be-
tween that and the mashed bullet, and yet you
can't tell us the exact weight of the round one?
It weighed one scruple, less a pennyweight than
the battered one. Now you see, here is the dif-
ficulty you got into : we have calculations by
avoirdupois and you weighed by apothecary's
scales; what a new round bullet weighed in these
scales, that day, we want to know, if you can't
tell, we would like for you to say so ? I can't re-
collect, sir, for certain. Did you weigh a conical
bullet, forty-four, that day ? Yes. What did it
weigh ? I can't say; there was so much differ-
ence between the weights that I didn't notice.
The conical was so much heavier? Yes, sir.
Then it was decidedly heavier than the mashed
bullet? Yes. So much so that you didn't think
it worth while to note the difference? Yes, sir.
Did you weigh a conical bullet, calibre thirty-six,
that day ? Yes, sir. Did that weigh more or less
than the mashed bullet ? Less. Was there a de-
cided difference also? Yes, sir. Was it as
great a difference as between the battered
bullet and the round bullet, calibre, forty-four?
There is a difference of between two and three in
the pound, between the conical bullet thirty-six
and the round forty-four? Yes, sir, I see, so the
round forty-four whighs very nearly the same as
the conical thirty-six ? Yes, sir. And your cal-
culation was that the mashed bullet was a round
forty-four? Yes sir. Now sir, I ask you one
question and a solemn one, and one that you
need not be ashamed to answer, but I want you
to be direct in your answer, I ask you whether
the whole thing was not conducted with a bias
against the witness, Phillips, was not that your
feeling in conducting this examination ? It was
sir.
Counsel—I thought so, sir, and I am glad to
see you have the candor to say so.
Re-direct examination by Counsel foraccused:
Mr. Watson, with regard to the bullets you
weighed, the mashed bullet which was delivered
to you by Sergeant Kenstler and the round bul-
et of about the same calibre, I think I under-
stand you to 3ay that you put one in one side of
the scales and the other in the other side? Yes,
sir. You didn't just put one into the scales and
weigh it, and then another and weigh it, but
made up the difference between the two by
weights, was that the way of it? No, sir, 1
weighed the bullets with weights. The mashed
one? Yes, sir. And the round one? Yes, sir,
afterwards. Did vou weigh one against the oth-
er? Yes, and I found a great difference. The
difference you have stated ? Yes. You have been
asked whether McRae asked you for these char*
ges and you said not. I did sir. Has any body
since that time, applied to you for them ? Yes,
CONVENED AT RALEIGH, NOliTH CAROLINA.
267
eir. Who ? Mr. Phillips, accompanied by his
brother-in-law John McKae. What evening was
that ? I think last Saturday week, but cannot
speak positively. You refused to give them up ?
Yes, sir. I .nderstand you to say that you, in
common with other persons in Fayetteville took a
great and deep interest in this matter ? I did sir.
And your examinations and investigations arose
lrom the deep, absorbing interest you felt in the
matter? Yes, sir. I understand you to say
frankly and candidly that there is in your mind a
prejudice against Phillips ? There is, slightly,
sir, I never spoke to him in my lite until Satur-
day week, but I have heard of him and his char-
acter is such that I would not associate with him.
You have a prejudice against him from what you
heard of him? Yes, sir, I felt a pity, too, on ac-
count of his family, I never had any particular
enmity towards him in my life, he called on me
last Saturday evening and insulted me grossly.
Under what feeling was it that you conducted
this examination regarding these bullets ? Well,
a curiosity to find what sort of pistol it was that
had shot the man. I thought you said, in reply
to Mr. Haywood's question, that you conducted
it under some bias towards or against Phillips ?
Well, I can't exactly describe my feelings about
it, I had no particular enmity against Phillips
but I wanted to know the truth myself, that's all.
Well, whatever the feeling might have been that
you had about him, did it bias your judgement,
or your testimony here ? Not at all sir. What
is the difference in length between the navy re-
peater caliber thirty-six and the army repeater,
such as has been shown to you ? About the same
length, sir, in Remington's and Colt's. I am
speaking of Colt's .
Counsel for prosecution:
I don't think he understands your question.
Counsel for accused:
The question is, what is the difference in length
between Colt's army repeater ? I believe there is
half an inch.
Judge Advocate:—In the barrel, or in the
whole length ? I never mentioned the barrel sir.
Well then you mean . I mean from the.
" strike " of the barrel to the end of the muzzle ?
Counsel for accused:—What did you say
is the difference ? About half an inch.
Is there any intimacy between yourself and To-
lar? None at all. Tom Powers? No, sir. Da-
vid Watkins ? No, sir, I have never spoken to
him, though I may have perhaps on the street.
What is your acquaintance with Captain Tolar ?
I met him at Mr. Boon's store very often, and said
good-morning and evening; and he has been to
my shop getting some things in my way. So that
your acquaintance is not intimate by any means ?
No, sir, very limited.
Counsel for prosecution:
I understood him to say he would recognize
that mashed bullet ?
Counsel for accused:
He did, sir.
Counsel for prosecution, to witness:
Did you put a mark on it? Yes, a slight one
with finger and thumb—not a heavy mark, but
enough to recognize it by.
Counsel for accused:
That is the very reason we want the bullet, sir:
to identify it, that he might put it in the scales
here in Court.
Counsel for prosecution:
The difficulty is, that he didn't keep the other
bullets.
Counsel tor accused:
We can find some of the same calibre—he has
his scales here, (turning to witness) havn't you ?
Yes, sir. You have both round and conical bul¬
lets, 44? Yes, sir. And round and conical for a
pistol of calibre 36? Yes, sir. And you have
here the same weights and scales with which you
weighed the bullet Sergeant Kenstler gave you ?
Yes, sir.
Questions by the Commission:
How did you know that Sergeant Kentsler had
that bullet ? I was informed by , well, I
don't know whom, sir: there were some boys
over in the graveyard when they dug it up: I
don't know who told me; I first heard about the
exhuming of the body and the extracting of the
bullet, from some person coming into my shop.
You can't recollect at all? I believe it was a
young man named John Boon, who told me that
the Sergeant who came up with the prisoners told
him Sergeant Kentsler had the bullet. Are all
navy revolvers of the same length ? All Reming-
ton's are. Are Colt's? Yes, sir. Are the Re-
mington's navy and the Colt's navy the same
length? Well, I've never measured, but I be-
lieve they are—Oh! I think there is half an inch
difference. Which do you think the longer of
the two ? I think Colt's is longer; I know that
Colt's army is half an inch longer than RemiDg-
ton's.
Judge Advocate:
That will do, sir. I would now state to the
Court that there are three witnesses yet under
summons to appear for the defence. One of
them, Owen Moore, was summoned on the 21st
day of July.
Counsel for accused:
It has been suggested to me that perhaps he
has removed his residence.
Judge Advocate:
Well, I have done everything that is in the
power of the Judge Advocate to procure this
witness. I have sent the order of the Commis-
sion, issued sometime since, to Colonel Frank,
for his arrest, but until this moment I have never
heard a word in relation to him. One of their
witnesses is Surgeon Kirke, to whom, although
summoned, Colonel Cogswell refuses permission
to leave. I will send a peremptory summons for
him to-day. At the earliest, there will not be an-
other witness here before Sunday morning, and I
would therefore suggest that the Court adjourn
till Monday.
Counsel for accused:
Would it not suit the Court as well to adjourn
till Tuesday ? I fear no witnesses will he here
until Monday morning at earliest.
Judge Advocate:
I am very anxious to close this case as quickly
as possible consistent with justice. It the wit-:
nesses do not come, we cannot proceed, that's
all.
Counsel for prosecution:
If the Court will adjourn till Tuesday, I will
have the witnesses here.
The Commission:
Do you think it probable we shall have any
witnesses here on Monday ?
Judge Advocate:
I think it highly probable that we shall.
At 2 P. M., on motion, the Commission ad-
journed to meet on Monday, 2nd September at
10 A. M.
Raleigh, N. C., Sept. 2, 1867, 10 A. M.
Present: Col. J. V. Bomford, 8th Infantry; Bvt.
Lieut. Col. Thos. P. Johnston, Capt. A. Q, M.,U.
S. V.; Capt. P. H. Remington, 8th Infantry; 2d
Lieut. C. E. Hargous, 40th Infantry ; 1st Lieut.
R. Avery, Judge Advocate; the Counsel for the
prosecution, all the accused and their Counsel.
368
PROCEEDINGS OP A MILITARY COMMISSION,
Absent: 2d Lieut. Louis E. Granger, 40th Inft.
The Jndge Advocate stated that there were no
witnesses present to be examined, whereupon on
motion the Commission adjourned to meet on
Tuesday, Sept. 3rd, at 10 o'clock, A. M.
Raleigh, N, C., Sept. 3rd, 1867,10 A. M.
The Commission met pursuant to adjourn-
ment.
Present, all the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused, and their Counsel.
The reading of the testimony taken on Friday,
August 30, was waived—there being no objec-
tion thereto.
The Counsel for the accused, said :
I will state to the Court, that I received a note
from Mr. Watson, yesterday morning, before
leaving for Fayetteville, in which he asked to
say that he desired to make a correction in his
testimony, at these points:—wherever he made
use of the word "pennyweight" he intended
"grain." The Court will recollect very well
that when he spoke of the weight, he qualified
by saying that he spoke of apothecary's weight,
and it will be manifest to the Court, that he did
mean grains, and did not mean pennyweights, be-
cause pennyweights is not one of the'measures of
apothecary's weight, at all. He desires that that
correction may be made in his testimony.
The Counsel for the prosecution :
The prosecution objects to any alteration be-
ing made in the testimony of Walter Watson, at
this late stage. He had an opportunity of cor-
recting his testimony, it was read over to, him.
He has now returned home, and having made
his calculations and seeing the absurdity of some
of his responses, he desires to make the correc-
tion. It is opening the door too wide for fraud.
That will be a matter for debate when his evi-
dence, come up for correction. He has testified,
using the expression pennyweight in every de-
scription. There is a difference of twenty-three
grains between a pennyweight and a grain, and
we object to his alteration of twenty-three grains
in the weight of the bullet. We think his testi-
mony ought to stand as it is, and go for what it
is worth, with this explanation: we do not think
his testimony ought to he changed, for he has
had an opprtunity of conning it over.
Counsel for accused:
I will state to the Court, that while that is so—
Mr. Watson had the opportunity of having his
testimony read over to him—that he had a portion
of it read over to him, and was so well satisfied
with the accuracy of it, that he did not ask that
the whole of it should be read over.
But what would be the effect of this. The
Court declines to admit that correction to be
made. Watson is recalled from Fayetteville here,
and put upon the stand, and makes the correction
in a supplemental examination. What is saved by
it Y It must be perfectly manifest to the Court
that this man Watson is an intelligent man, and
that he certainly understands ■ the weights and
measures, about which he spoke. He says to the
Court now, that he did not mean penny-weights,
and it would be absurd to suppose that he did
mean penny-weights, if you give him credit for
intelligence ; and that he did mean grains, which
was the next weight to the weight he gave—so
many scruples, and so many grains. It is per-
fectly manifest to the Court, that it was a mere
inadvertance, a mere incorrect expression on his
part, and if the Court will allow the testimony to
be corrected now it will be doing to the witness
only justice. If the Court shall not allow the
testimony to be correct it will make it necesssary
to recall the witness Mr. Watson, and then in a
supplemental examination he can correct it.
I hold, sir—and I think the Counsel will not
gainsay it, that all Courts of justice, ot all sorts,
sit for the purpose not of entrapping witnesses,
but to get at testimony which is fair and satisfac-
tory to themselves ; that the witness stares what
he means, and if by inadvertance, anything goes
down on the record, which the Court must see
that he did not mean—the Courts will always per-
mit a correction. It therefore seems to us, to
narrow itself down to this, whether a correction,
which the Court must necessarily see is a proper
correction, shall be made now, or whether we
shall be compelled to recall the witness, from
the town of Fayetteville, and put him on the
stand, that he may correct his testimony here.
The Commission was cleared for deliberation,
and after sometime so spent the doors were re-o-
pened, and the Judge Advocate announced that
the Commission sustained the objection of the
Counsel for the jirosecution to the alteration of
the testimony of witness, Walter Watson.
Friday's preceding were then read and approv-
ed.
Yesterday's proceedings were read and approv-
ed.
Louis R. Kirk, a witness for the defence, liav-
ing been first duly sworn, testified as follows:
Examined by the Counsel for the accused:—
What is your name ? Louis R. Kirk. What is
your rank? Assistant Surgeon. In what coin-
mand ? Post of Fayetteville. Did you exhume
the body of a colored man, by the name of Archy
Beebee, or Archy Warden ? I had a body exhum-
ed, that was said to be the body of Archy Beebee.
Were you present at the time of the exhuming of
the body? I was. When was it sir ? The third
of August, I think. What time in the day sir ?
About ten o'clock. Before noon? Yes, sir.
Who were present, assisting at the exhuming of
the body ? I had a detail, and a couple of colored
men came there to assist. Who were they ? One
of the soldier's names was Armstrong, I don't
know the others, one of the colored men was
Armstrong, he had been a witness on the trial
here. Did you request him to be there present?
No, sir, I had Sergeant Kenstler with me, and I
took the two detailed men to do the work, I sent
back for two more, but when they got there I
think the body was exhumed. Did Armstrong
assist in exhuming the body ? Yes, sir. Was he
ordered to be present, or was he a mere volun-
teer? I think he voluntered, sir, one of the sol-
diers ask him to relieve him after he got there,
I don't know sir, which. You didn't request
him to be present ? No, I had a colored man
with me to close the grave. Armstrong came
thereafter you had reached the grave? Yes.
And he either volunteered his services, or was re-
quested by one of the soldiers detailed to assist ?
Yes. Did you take up the whole body? No.
How much of the body did you take up. I just
had the head taken up. At what point did you
have it severed from the body? At the neck. What
was the state of the head, at the time it was taken
up ? The tissues were very decomposed, sir, all
came off, fell to pieces; the whole body was de-
composed. Were the ears, or any portion of the
ears, upon the head ? I can't say for certain, I
rather think they were; the tissues were all hang-
ing around them ; it made me sick, and I kept as
far from it as I could. Was the hair upon the
head, or had it come off? It had all come off'.
Where did you make an examination of the skull,
there at the place? Yes, sir, close by the grave.
What was the character of the ground around
that place? It was sandy ground, with some
• thin growth of grass or weeds over it. Was the
CONVENED AT RALEIGH, NORTH CAROLINA.
209
skull sawed open ? Yes, sir. Which way was it
saweel ? The back part was sawed off, nearly
from the top to the bottom. Where was the bul-
let found ? It was in the mass of the brain, sir.
Was the mass of the brain examined while in the
skull? Part ot it was drawn out; the part that
the ball was in was drawn out. And then the ex-
amination was made in that mass, and the bullet
was found in it? Yes. Have you that skull no.v?
I have part of it. Have you the x>art wliich shows
the hole where the outlet entered ? Yes. Where
"is it ? It is now in the hospital at Fayetteville.
Hid you make a careful examination of the skull
on the day the body was exhumed? Yes. Have
you examined it since that day ? Yes. State, if
you please where the ball entered ? It entered
in the main lambdoidal suture about half way
from the oeciputal bone, to the projection in the
back back of the head—halfway from the orifice
of the ear to the large protuberance on the back
of the head. The orifice of the left or right ear ?
The left ear. Did it enter the walls of the
skull, or did it enter the suture ? Right in
the suture. What is the thickness of
the skull, at the point the ball enter-
ed? It is not over an eighth of an inch, about
an eighth. Would penetration be effected by
a ball more easily in the suture, where this en-
tered, or in the wall of the skull ? In this skull,
more easily through the suture. Why do you
say this skull—was there anything peculiar about
this skull ? The sutures in the skull were rather
open ; I don't know how they were at the time
the man was shot; they are not as close as I
have seen in skulls. So penetration would be ef-
feeted in this skull at the point where that ball
entered more easily than it would in ap ordinary
skull, or other skulls that you have examined ?
1 think so, I think it is the thinnest skull I most
ever seen. Are you accustomed to examining
skulls of people? Not a great many. Are you
accustomed to examining skulls of colored per-
sons? Not especially. Have you had mueh ex-
perience, sir, in surgical .operations, and anato-
mical examinations? Not a great many ana-
tomical examinations. Have you examined many
skulls before ? Yes, I have seen quite a number.
And you think this skull was thinner at this
point than any othej you have seen ? I think I
never saw one so thin. And you never saw one
with such open sutures ? I don't think I ever
did. Did it enter directly in the suture, or at the
junction ot two sutures ? Right in one ot the
sutures. How far off from the junction of the
two sutures? Two inches and a half, I should
think. What was the character of the hole that
you found in the skull ? The general character
was round, it was ragged. Did you examine it
from the inside and from the outside? Yes.
What was the outside appearance—was that jag-
gcd? Yes, sir, ragged, somewhat. And the
inside appearance, was there any depression
or any elevation in the skull? The lower
part was slightly depressed, and in the inside
the bone was chipped out, as the bullet went
through, it chipped out the inner table of the
skull to a very slight extent. So there was a de-
pression in the point of the skull nearer to the
left ear? One part of the bone was depressed
there. Is that depression invisible from the out-
side? Yes. And' there is a chipping out of the
6kull on the inside? Yes, all around about the
aperture. Could you tell, sir, the range of that
ball—which direction it ranged ? It was very
nearly perpendicular to the skull; it may have
been a very little from the front and down ; may
have gone up and backward a little. Your opinion
is that the strike came from a point perpendicu-
lartothat poitionof the skull ? Yes, or very
nearly so. From what do you make up that
opinion, sir, from the appearance of the aperture ?
Yes, sir. Did you examine the opposite wall ot
the side of the skull on the inside? I did not,
except the piece that I have; I looked at it,the
other sk!111 did not. I mean the skull on the
right hand side ? I didn't examine it. You could
not tell then whether the ball had passed through
the brain, and passed to the wall of the skull upon
the right, or whether it had not? No, sir. But
you did lind the ball in the mass of the brain ?
Yes, sir. How far is the brain from the skull at
the point that that aperture was ? The base of
the brain is very nearly against that place; it went
in, I think, about the base of the brain. How
broad is the base of the brain ? About four inches,
I think. It is very nearly against the point where
the bullet entered ? Yes, sir. And the base of
the brain, at that point, is about four inches in
width? Yes, sir. The soft pulpy substance?
Yes. After penetrating the skull, getting into
the inside of the skull, 'is there any obstruction
that the ball would meet with except the soft
pulpy substance of the brain, until it reached
the opposite side of the skull—a bullet strik-
ing as you say perpendicularly ? No, sir,
if it did not go downward, it would not meet
any thing, there is nothing between the opposite
sides in a horizontal course. I understood you to
say that it went upwards a little? Yes, I don't
think there would be any obstruction whatever,
in the direction the bullet took. You were pre-
sent at the very instant the bullet was taken from
the brain ? I was. Could you tell whether the
bullet was lodged about the center of the brain;
or whether it was nearer to one side or the other
side of the brain ? I could not give any idea at
all, the brain was in a fluid state, decomposed en-
tirely. What did you do with the ball ? I gave
it to Serg. Kenstler, Company K. 8th U. S. Infan-
try. What was the size of the hole made by the
bullet;-did you measure it? I did not. You
can give neither diameter nor circumference ?
No, sir, merely a guess; that would be all. I
don't want a guess .if you have an opinion ? I
have no definite idea. Can you describe it
by any portion of your person; or anything
that you have about you? My front finger
just about goes in it. flow far? To the first
joint, or nearly there. Is your front finger
a little front linger or a large front finger?
A small one I should think, sir. Can you say in
inches, or the fractional part of an inch, about
how large across that aperture was ? I could not
with any certainty I am not very good at meas-
ure. t What is your height, Doctor ? ' About five
feet eight, five feet seven and a half, or something
about there. What is your weight? About one
hundred and twenty-eight, I think. You say you
saw the ball, and you delivered it to Sergeant
Kentsler? Yes. Did you examine the ball be-
fore you delivered it to Sergeant Kentsler ? Yes,
sir. What was its condition, sir? It was some-
what corroded, sir. What was its form ? It was
an irregular square—more square than any other
form, to my observation—not a round ball." Was
it very much battered? Yes, sir. Could you
tell why it was so much battered, Doctor? I
could not, sir. Was it so much battered that you
could not tell what its original form was ? Yes,
sir. Would the entering into a skull at the point,
and of the thickness you have described, batter a
bullet so much as that bullet was battered ? I
am not familiar enough with projectiles to know
whether it would or not. Have you ever seen
that bullet since at all ? I saw it once since I
gave it to Sergeant Kentsler. Where did you see
it ? In my office at the hospital; it was the same
day that I delivered it to Sergeant Kentsler; I
270
PROCEEDINGS OP A MILITARY COMMISSION,
think it was the same day, I won't be perfectly
positive about that. Since that day you have
pever seen it ? No, sir. Did you weigh that bul-
let? Yes, sir, I weighed it. How did you weigh
it ? In an apothecary's scales. Well, sir, what
did you find to be the weight of it? My impres-
sion is, sir, exactly three drachms, one hundred
and eighty grains. Are you certain of that, or is
it only an impression ? That is what I took it to
be at the time; and the note I made of it is three
drachms. Did you make a note of it at the time?
I did. Exactly three drachms ? Exactly three
drachms. Did you weigh it with any other bul-
let? No, sir. Did you weigh any other ball at
that time? None. Have you weighed any other
ball since ? Yes. What other ball have you
weighed since that time ?
Counsel for the prosecution:
Don't mention the weight if you pleuse.
They were lead bullets that 1 got, that fitted
either a Remington pistol, or a Colt's navy re-
volver. What kind of bullets were those, what
shape? I think they were both conical. Who
said that they fitted those pistols? A boy in a
gun smiths, I dont know who he is. Do you
know whether they fitted those pistols or not ?
One of them does, one ot them fits a Colt's re-
volver, I believe it is, that I had in my room ; I
pay little attention to revolvers, but I think it is
a Colt's, I am confident it is. What sized Colt's
revolver? The largest size but one. And you
tried one of the bullets which you weighed, coni-
cal in its form, in that pistol? Yes, sir. You
spoke something of having weighed another eon-
ical ball ? It was said to be the largest size of
Colt's revolver, no, I think he told me that he
didn't know the pattern of that ball, first he told
me it was a Colt's and afterwards he told me it
was not, it was some other pattern, he thought.
Did you weighany round bullets ? No, sir. -You
weighed those two conical bullets, one of which
you say, fits a Colt's repeater, next to the largest
size, that you know? Yes, sir, it just about fits
the barrel. Does it fit it exactly, or just about
fit it? It goes in without much trouble. So a
mustard seed would go in, does it fit it very
tight ? It might perhaps, if it was forced in with
a ramrod, I stuck it in the muzzle a little piece,
so that I could pull it out again. Did you notice
the bullet for Colt's revolver particularly, do you
know whether it is smaller near the base, or
whether it has a place cut out for a string, to tie
on a .cartridge ? This one I think had ridges on.
How many ridges do you think it had? I don't
know that, I am not positive that the small one
has ridges on, the large one I know has two. I
am speaking of the small one, the one that fits
Colt's revolver, the second size ? I am not pos-
itive that it has, it was not in a cartridge when I
got it. And you are not certain whether those
ridges are on it or not ? No, sir, I am not cer-
tain. What did you find to be the weight ?
The Counsel for the prosecution objected to the
question.
The Counsel for the accused said :
We do not press it, I wanted simply to show
that we were entirely Mr about this matter, I
have not the remotest idea of what his answer
would be.
Direct examination resumed.
Did I understand you to say that the suture of
the skull, in any skull is more easily pierced than
the balance of it? As a person becomes older
the suture becomes solid, and then I suppose they
would be harder to pierce, they become almost
obliterated, and the skull is thicker there, than at
any other part, so that in that ease the suture
would be Harder to pierce than the plain surface
of the skull. So that, while you can't giye an
answer to the general question, as to whether
the suture would be more easily penetrated than
the walls of the skull where there is no suture
you give your lormer answer, that a suture of
this skull was more easily penetrated than the
balance of the skull ? From the present condi-
tion of the skull, I can't tell what decomposition
may have done for the skull
Cross examination by the Counsel for the pros-
ecution.
After this negro boy's head was out of the grave
you say the back of the head was sawed off ? Yes.'
What portion was sawed off? About the crown
of bis head. There was no possibility of another
bullet being thrust into his head, while you were
there, without, your seeing it ? I was not there
when the head was taken off, a shower came up,
and I got Into an ambulance, I told thern
when they had the bead sawed off to call
me. Were you there when the head was
opened? I- saw the bead opened, I told
then not to do anything until they called me. Af-
ter the back of the skull was taken off in this way
did the whole contents of the skull fall out on
the ground ? Very nearly all of them, I had them
poured out. You had the whole head emptied be-
fore you examined for the bullet ? I presume all
of it was poured out. Is it possible for you to
say with any certainty, whether that bullet had
penetrated the whole brain, or whether itjwas in
the substance of the brain at the time the brain
came out ? It appeared to be surrounded entire-
ly by the brain, when I found it—I should think
it was in the substance of the brain. Youriin-
pression is, from the place where you found the
bullet, and its condition, that it was right in the
substance of the brain? Yes, sir, some part of
the substance. Have you any doubt about this
being the very bullet that was in the man's brain
that you took the head off of? Not in the least
sir. You say John Armstrong was there ; you
don't know how he came there? He came there
from curiosity I believe sir—there were a number
of women and children there ? Did be have any-
thing to do with taking the head off ? They told
me he cut the head off—I was not there just at
the time. Was he standing by, when the head
was emptied and during the whole examination ?
Yes, sir. The tissues were in a great state of de-
composition ? All the tissues of the skull nearly
were off. Can you tell me, as a matter of surgi-
cal knowledge, whether a conical bullet, or a
round bullet makes the largest bole, in passing
through the skull ? A conical bullet does. It
makes a hole larger than its cireumferenee ? Yes
sir. How is it with a round bullet ? It is not
much larger if any. Was the hole round ? It
was not entirely round. Could you pronounce,
from its condition, whether it was made by a con-
ical or a round one ? I should think by a conical
bullet; that is my impression. You say that hole
was slightly irregular, as if it were made with a
conical bullet—conld you insert your finger up to
the first joint? I should think nearly up to the
first joint, not quite perhaps.
(The witness designates about the point of his
fore finger which he could insert in the aperture,
which measures one and seven eighths inches in
circumference.) t
You spoke of this ball having entered through
one of the sutures, in theback of the head ? Yes.
At what age, do the sutures in the back of the
head usually close ? Well sir I could not answer
that question; there is a difference in different
individuals. Is not there a general medium sir;
that you could give, as a scientific man, or is it a
matter of very great uncertainty ? It is a matter of
very great uncertainty with me at least; 1 don't
know that I could gay. You say the sutures of
CONVENED AT RALEIGH, NORTH CAROLINA.
271
this skull appeared to be more open than is cus-
ternary ? Yes, sir. The younger the subject is,
the more open the sutures, as a general rule?
Yes, sir. And after a man reaches maturity, I
suppose they close fully ? Yes—thirty or thirty
Ave, along there somewhere. Is it a fact or not,
that a body having been burried, subject to de-
composition and the action of the atmosphere,
that the sutures of the skull open more and
more; or do they remain in the condition they
were, when the person died? I don't know, I
can hardly give an opinion on that; I don't
think the decomposition would open them,
unless there was some cartilaginous matter,
the bony matter I don't think would open much.
Did you examine any of the other sutures ? None,
except in the piece I sawed off, they all appeared
to be started. As much as the one through which
the ball entered ? Very nearly as much. You
spoke of the width of the brain at the base, which
way did you mean to measure the width, across
the head ? Across the widest point; it is a mat-
ter of uncertainty with me, I don't recollect any
recorded measurement, but I think the skull was
about tour inches wide across the base. You say
you weighed this bullet, that came out of Archy
Beebee's head ? Yes. And it weighed one hun-
dred and eighty grains ? I believe the scales are
accurate, I don't know whether the weights are
accurate or not; I just used them and l never
tested them, it weighed three drachms with the
weights I had, precisely. You were asked, sir,
about the penetration of lead, something about
the wound it would make, and so on,—is there a
difference or not in leads, or is it not your expe-
rience such as has called your attention to that;
I mean with regard to the degree of density of
lead? That is something I never thought of.
Did you never observe that some leads are softer
than others ? Perhaps I have; I have never no-
ticed it in connection with bullets, though. Have
you ever examined the question, whether a bullet
loses any of its substance in passing through a,
substance like the back of a skull^ have you ev-
er seen any lead detatched ? I don't remember
ever having seen any lead detached. In exami-
nation of wounds you have never noticed that
any lead was left on the points of the jagged
ends of the wound? No, sir. You have ex-
pressed the opinion, sir, that this wound was
made with a conical ball—is that a decided opin-
ion ? Either a conical bullet or a slug, not by a
simple round bullet, I don't think. Is that opin-
ion a decided one ? Yes, sir. I understand the
bullet entered about an inch or two behind the
left ear? Yes, sir, perhaps further than that; it
was just about half way between the ear and the
back of the head, and very nearly in a line. As I
understand you, the portion of the skull nearest
the ear, was pressed in? Yes, a very little.
When you spoke of a perpendicular wound, did
you mean one that was given plumb upon the
spot? Yes, with the plane of the brain at the
place of the wound. Did I understand you to say
that you had any reason for thinking this bullet
was ranged upward, and to the right ? Nothing
more than that depression, my idea of the range
would be up towards the right temple. Can you
give any decided opinion upon that point, as to
what the range of the bullet was ? 1 could not
tell anything from the brain at all. And it is
only from the depression? That is all; and that
depression was so slight, and if the bullet ranged
any from the perpendicular it was very little.
But if it was not exactly perpendicular, it ranged
towards the right temple? Yes, sir. You say
this man's skull was an exceedingly thin one?
Avery thin one, sir. Have you examined many
wounds in the brain, sir, in the course of your
experience ? I have seen considerable wounds in
the brain, sir. Does the substance of the brain
oppose much resistance to the passage of a bul-
let or not. Very little.
Re-direct examination by the Counsel for the
accused:
You gave it as your opinion that the bullet
which made that hole, was a conical bullet ? Con-
ical or a slug; not a round bullet, an oblong ball
of some description, sir. What are your reasons?
A round bullet generally makes a cleaner wound
than an oblong one. Suppose the conical ball
was to enter point on, the apex striking directly
upon the skull, and going in in that way, would
not that make a smooth cut, as smooth as a round
bullet would? The base of almost all the coni-
bal balls is made jagged from the hindrance of
the groove of the pistol barrel, and it tears more
from that fact: a conical ball generally lias a
wind, and it strikes differently from a round baiH;
that is why it makes a rugged wound. Do you
know much about that subject ? That is the gen-
eral impression, and that is the way we are taught
in our works. I ask you whether it won't de-
pend in a very great measure, upon the nature of
the barrel; I ask you whether a conical ball, fired"
from a rifled barreled pistol would make any dif-
ferent wound from a round bullet fired from the
same barrel ? I think it would, sir. And you
think a conical ball would produee a wound that
was more jagged in appearance than the round
bullet? Yes, sir. How would it be, sir, if that
round bullet was pressed hard down and the face
of it were battered with a ram rod in getting it
down, would it not have the same jagged ap-
pearance that a conical ball would produce? It
would make a more jagged appearance than if it
were not battered. Is your experience in gun
shot wounds in the skull sufficient to enable you
to say whether that wound was produced by a
conical bullet or by a round bullet, with its face
flattened by the action of a ramrod upon It? My
experience m wounds of the skull is not very
extensive; I didn't see a great many of these, but
I speak from my general knowledge of wounds;
that all I have seen made by conical balls have
been ragged and larger than those made by round
balls. Can you give an opinion, as a medical
man, as an expert, whether a wound in the skull
would present a different appearance if made by
a conical ball striking point on, or if made by a
round ball, the face of which had been bat-
tcred by the pressure of a ramrod? Well,
from the nature of projectiles I said the
conical ball made the largest wound. I
am not speaking of the size of the whole,
sir; I am speaking now of the general
nature of the aperture; would it be more jagged
if produced by a conical ball than it would be if
produced by a round ball, one that was battered
in the way 1 stated ? I think it would. You were
speaking just now of the scales in which you
weighed the ball, you say you are certain the
scales are correct? Yes, sir. And not so certain
with regard to the weights ? No, sir. Why are
you not so certain with regard to the weights ?
I have never tested them, I have tested the scales.
Are they old or new weights? I have not had
them a year. Did you get them when they were
new? Yes, sir, they were issued tome by the
fovernment. Have you used them a good deal ?
es, sir. Suppose that they had been entirely
correct—these weights, when they were given to
you, then would it be possible or would it not be
that in weighing as much as three drachms those
weights might not have lost by friction and by
use one grain ? I don't think it possible for them
to have lost any perceptable weight. I think I
understand you to say that you weighed that ball
272
PROCEEDINGS OP A MILITARY COMMISSION,
•on the same day that it was extracted from the
brain? I think it was that day. Was the ball
entirely dry at that time, or did it have any mois-
ture, or any portion of the substance of the brain
adhering to it? It had some portion of the sub-
stance of the brain on it. Was it dry? I think
it was, sir. Do you think it was entirely dry or
partially dry? I think entirely dry. Had you
taken any means to dry it? I had not Did you
weigh it before you got back to your office ? No,
sir, I weighed it after I came back. Do you know
how it was carried by Sergeant Kenstler from the
grave ? I think he put it in an old envelope.
Did you go direct from the grave to your dispen-
sary ? No, sir. How long was it alter the ex-
traeting of the ball from the mass of the brain
before you weighed it? I can't tell, sir, it was
some time though, an hour or two, perhaps sev-
eral hours. Which do you think it was, an hour,
or two or three or four hours ? I can't say posi-
tively ; I went from the grave to headquarters
and reported to the Colonel and came back, and
it was after that I weighed it; it was three or
four hours, if I weighed it the same day. Your
impression is you weighed it the same day? Yes,
sir. And at the time you weighed it there were
portions of the brain or the matter you found
upon the ball on it? Yes, sir. In speaking about
putting your front linger in the aperture up to
the first joint., do you mean to have put it in that
far, you would have to press the flesh around the
opening ? Without mueli pressure, I think with-
out any pressure at all. That was with the skull
naked—denuded of all its outer covering ? Yes,
sir. How far do you think you could have put
your finger in it, directly alter the shooting oc-
curred, say that same day, when the skin was on
the skull and the hair upon the skin ? I could
not give an idea, sir. Would you have been able
to put your finger in that lar on that day ? The
wound would have been a little less that day,.I
should think, because the tissues would have
been contracted, and there would have been a
little difficulty probably in getting it in that lar.
Question by the Commission:
That ball which you tried in your revolver you
say it just went into the muzzle; do you mean"
the muzzle of the barrel or one of the orifices in
the cylinder ? In the cylinder.
A. A. McKethan, a witness for the defense
having been first duly sworn, testified as follows:
Examined by the Counsel for the accused:—
What is your name ? A. A. McKethan. Where
do you reside? Eayetteville. Eayetteville N.
C.? Yes, sir. How long have you resided in
Eayetteville ? I have been regularly in business
there, since 1832. What is your business ? Car-
riage business sir. Are you acquainted with the
general character of William J. Tolar? I am sir,
1 was acquainted, with him before the war and
Since that time. You are acquainted with his
general character? Yes, sir. What is that char-
acter sir ? It is good sir. Good as a peaceable,
quiet, orderly citizen? Yes, sir, 1 have never
heard auything against him sir. Are you ac-
quaiuted.witk the general character of Thomas
Powers? Yes, sir. How long have you known
Tom Powers? I really don't exactly recollect
sir, but I have known him as much as five or six
years. What is his character, sir? Very good
sir, he was an apprentice to me before the war,
and, has since been working with me. His char-
acter, you say, is very good? Very good sir.
Good as a peaceable, quiet", orderly citizen ? Yes,
sir. Are you acquainted with the general char-
acter of E. P. Powers for truth ? I am sir. What
is his character ? Very irood sir. Are you ae-
quaiuted with the general character of Ralph B.
Lutterloh, for truth ? I am sir. What is that
character? Yery good sir. Are you acquainted
whith the generel character of J. G. Leggett, for
truth ? I am not very much acquainted with Mr.
Leggett, sir, he has not been a citizen of our place
a great while, I know him when I see him in the
street, I know him well enough to speak to him,
but never have had any particular dealings with
him, I have heard him spoken of very well.
When you are asked the question whether you
are acquainted with the general character or a
person, it is not for you to give your own lcnowl-
edge of his character, but your knowledge of uis
character as derived from the community in
which lie lives. With that explanation can you
say whether you are acquainted with the general
character for truth of J. G. Leggett ? So far as I
know about his character, it is good. Are you
acquainted with the general character of Ichabod
B. Davis, for truth ? Yes, sir, very well. What
is that character ? Very good sir. Are you ac-
quaiuted with the general character for truth of
John T. Mullins ? Yes, sir. What is that char-
acter? Well, sir, his character for truth is good.
No question about it? I have never heard it
questioned, sir. Are you acquainted with the
general character for truth of James Atkinson ?
I am sir. What is that character ? Good, sir, I
would say Mr. Fuller,- that he was apprenticed to
me in 1860, he went oil'to war in 1861 and return-
ed afterwards, and has been in my employ up to
the time he came here as a witness. And you
have known him well, and you know his general
character lor truth? Yes, sir. And you say,
without any hesitations that that character is
good for truth ? I do sir. Are you acquainted
with the general character for truth of Mrs. Lucy
J. Davis, the wife of Dr. Davis the Dentist. I,
only know the lady well enough to speak of her,
I can only say as to what I have heard others say
ol her. It is the knowledge of the character that
you have from others that we asked you about ?
It is very good, sir. Are you acquainted with
the general character for truth, of a young man
by the name of Sebastian Arey, jr.? I know him
very well from a boy. What is his character ?
It is very good, sir. Are you acquainted with the
general character for truth of Washington Fair-
cloth, son ofFaircloth, the policeman in Fayette-
ville? I can't say that I know the young man,
I know his father very well, but I don't know
him. Are you acquainted with the general char-
acter for truth of Walter Watson ? I am not
well acquainted with him; I have never had any
particular dealings with him; I have heard others
speak of him. Are you acquainted with the gen-
eral character for truth of Gurdon S. Demming?
I am, sir. What is that character ? Very good,
sir. Are you acquainted with the general char-
acter for truth of James II. Myrover, Editor of
the Fayetteville News ? I am, sir. What is that
character? Very good, sir. Are you acquainted
with the general character of James A. Hendricks?
Yes, sir. What is that character ? It is tolera-
bly fair, sir. Are you acquainted with the gene-
ral character of Pliilimon Taylor for truth ? I am,
sir. What is that character ? Very good indeed,
sir. And of David G'ashwell ? I am, sir. What
is that character ? Very good, sir, indeed. Are
you acquainted with the general character for
truth of James E. Jones ? I can't say that I am
very well acquainted with him ; I know the gen-
tleman when I see him well enough to speak to
him. You can't say you are acquainted with his
general character '/ Not particularly, sir. Are
you acquainted with the general character for
truth of Dilly Stewart, or do you know her, a
colored woman ? I don't know her at all.
Cross examination by the Counsel for the pros-
ecution:
CONVENED AT RALEIGH, NORTH CAROLINA.
£73
Were you in Fayetteville on the day Archy Bee-
bee was killed? I was sir. Were you at the
market house ? No, sir. Did you see anything
of it ? No, sir. Was Tom Powers working for
you at that time ? Yes, sir. Was James Atkin-
vson working at your shop also ? Yes, sir. Do
you know whether they were at the market house
on the day Archy Beebee was killed ? I can't say
of my own knowledge, sir. Were you at your
place of business the day Archy was killed ? I
was, sir. Do you know whether they were ab-
sent ? I know they were both absent. Do you
remember, what time they returned that day, or
either of them ? I am uot certain whether they
returned—I am satisfied of this ; that both of
them returned as lost time on that day. As I un-
derstand you, it is the custom of your shop, that
when a man fails to do his work, he gives it in as
lost time? Yes, sir. And bath o"f these men
rendered the whole of this day as lost time ? At-
kinson I think, only a part; but I think Powers
gave in the whole day. What part did Atkinson
give in as lost, morning or afternoon ? I think
he gave in as lost half a day. Do you remember
the fact of their returning that day? I don't
know that I seen Powers that day; I think I seen
Atkinson that day. Did'you see Powers with
any weapons that day at any time ? I did not sir.
Do you kuow whether he is in the habit'of carry-
ing any ? I don't know that he is. Did you see
Atkinson with any weapon that day ? No, sir,
none at all sir. What do you mean by the gene-
ral character of these persons that you have spok-
en of? I mean that I would believe them on
oath as swearing to the truth, That is what you
understand by general character -for truth—that
you would believe them ? Yes, sir, and it is the
general opinion of those who are acquainted with
them. Then you mean by their general character
that the people, generally who know them, speak
well of them for truth ? Yes, sir; I have never
heard anything else of them at all. Haven't some
of them no character at all, either for truth or
against it ? I believe they have all established
a character some way or other, the greater pot-
tion of them have been raised there. Do you
know that that lad Arey has established a charac-
ter for truth or falsehood, at this time in his life ?
Yes, sir, he was raised there from a child. Do
you mean the neighbors generally have ever dis-
cussed his character for truth or falshood? I
dont know as to that sir, if any citizen were ask-
ed they would say his character for truth was
good. You say you knew his general character;
you say you understand by general character,
what the neighbors generally, say of him, not
what they would say ot him if they were asked;
now I want to know who you have ever heard
speak of Sebastian Arey's character for truth ? I
don't know that I have ever heard any person
particularly, for I have never heard it called in
question. And that is what I mean by saying he
may not have established any character for truth;
you never heard his truth called iu question ;
you never heard it said that he was a truthful boy
or that he was the contrary ? No, sir. But when
you swear that you know a man's general char-
acter, you mean you know what the neighbors
generally say of him, in the neighborhood where'
he lives—now about this man Leggett; when did
he go to Fayetteville ? I think he has been there
as much as twelve months. Do you think you
know his general character at all ? I don't think
I do, except what I have heard others say of him.
Have you heard others speak oi him. I have.
Since he has been a witness here or before ?
Since. Did you ever hear them speak ot him be-
fore? No, sir. He has not been in Fayetteville
long enough to establish a general character
there, has he? I don't know, with the persons
whom he has been familiarly acquainted with, he
may have established a character. That would
not be a general character ? No, sir, 1 don't know
that it would be. Now I wan't to know whether
in the majority of these cases, you are giving
your own opinion or the opinion of the conimu-
nity, that you have gathered ? Well, sir, 1 am
giving my opinion, coupled with the opinions of
the community, so far as I know. Now I want
to know who you have heard speak of the char-
acter of Leggett, before hetestiliedin this cause ?
I never heard anybody speak of him before. And
yet you said you knew his general character?
Yes, sir. You said you never heard Sebastian
Arey's character called in question, one way or
the other? No, sir. Did you everhear Mrs. Da-
vis' character called in question? No, 6ir, she
stands fair as a respectable lady. I have no
doubt about it, but there are a great many men
who live aud die without establishing a character;
you say you know the general character of E.
P. Powers for truth ? Yes, sir. Who have you
ever heard speak of it ? I know that by business,
I have been more or less engaged in business
with his father. His general character is given
upon your own opinion? From what I have
seen of him and from what I have heard others
speak of him. Who have you heard speak of
him ? I have heard John H.'Cook speak of him.
When was that ? I can hardly tell you, the young
man was raised there. Did you hear bim speak
of his truth ? I have always heard him spoken
of as a very reliable young man. Was his truth
called in question at all ? I don't know that it was.
Did you ever hear John H. Cook say that he was
a man whose character was good for truth ? I have
heard him speak of him in that way; that he was
a reliable, truthful man. Did he 6ay anything
about his truthfulness? Yes, sir. What called
it up, sir? Cook and Powers were once in part-
nership, and it arose probably from that. What
brought ou the conversation with regard to his
truth ? I believe it was about business matters.
Who else have you heard speak of his character
for truth, besides J. H. Cook? I don't know
that I have heard any person else that I can name.
Who have you ever lieard speak of Ralph B. Lut-
terloh's character for truth? Nobody, sir, I
know the young man well. I understand that
your opinion ot him is good—the only thing
that you can give in as evidence is what the
neighbors in the neighborhood where he lives,
generally say of him; and when a man swears
that he knows a general character of another per-
son, he swears that he knows that; not his own
opinion of him, but what the neighbors general-
ly say of him; now, you said you knew Ichabod
Davis's character for truth ? Yes, sir. Who have
you ever heard speak of his character for truth ?
I don't know any person particularly, for I have
never heard him doubted. Did you ever hear it
called in question one way or the other ? I don't
remember that I lmre heard anybody speak ot his
being a man of good character for truth; I have
had a good deal of dealing with him myself. But
that is not what others say of him—that is.your
own opinion of him; now John T. Mullins—I
should say he has a character one way or the
other—you say he has established a character for
truth ? Yes, sir. Who did you ever hear speak
of him ? He is a mau of a peculiar turn, and not
disposed to do much business, but I have always
heard him spoken of by our citizens in general
there, that he was a man for truth; that wbatev-
cf he said, you might rely on as true, whatever,
other faults he might have. You have heard thatj
said of him frequently? I have heard him spo-
ken of several times. Was that before or alter
274
PROCEEDINGS OP A MILITARY COMMISSION,
the murder of Arcliy Beebee ? Before and since.
I don't care about any thing that has been said
since, but I want to know who you have ever
heard speak of Mullins' character as good for
truth before Arehy Beebee was killed ? I have
heard Major John T. Leonard. When was that?
I could not say, sir, the time; the reason of my
speaking of him was because he was a special
magistrate there. Any others that you can name?
I don't know any others particularly. Have you
ever heard any other person speak of his charac-
ter for veracity ? I don't know that I have par-
ticularly. Have you in general; I want to know
what your opinion is with reference to general
character; I want to know how general your ob-
servation has been; I understand you to say up-
on one occasion, you have heard Leonard speak of
John T. Mullins' character for truth? Yes, sir.
Have you ever heard any one else ? I have heard
a brother-in-law of his by the name of James
Sundy; he is not alive now. Did he live in Fay-
etteville? Yes, sir. Who else? I don't know
any person else. How long have you known
James Atkinson ? He came to me on the 22nd
of February, 1860; I have known him since that
time. How long did he remain with you before
he went into the war as you said ? He went into
the war on the first of May, 1861. When did
he return ? In October, 1865. And he has
been working with you ever since? Yes, sir.
How old a man is James Atkinson? I suppose
between twenty-three and twenty-live, he was
seventeen years old when he came to me in 1860.
You spoke of his character as being good for
truth ? Yes, sir. You say youknow'his general
character? I think I do, as well as any man.
No man may know it for aught I know, I want
to know whether you say you know his general
character, not what yon think of him, but his
general character ? His general character about
the shop among the men who have been there
with him every day, is that of truth. Then the
persons whom you have heard speak of him, are
men about the shop in your employ? Yes, sir.
Did you ever hear any one else speak of his char-
acter for truth ? I don't think I have at all since
this affair. Who did you hear speak of it before
in the shop, Tom Powers ? I don't know that I
have ever heard Tom Powers, I have heard the
painter that I have in my shop, named Michael
Gary. And what did lie say about him ? He said
he would believe him. Why was this man's char-
acter for truth discussed by Michael Gary that
caused him to make that remark ? It occurred
at the time he went off in the war : I recollect
hearing Mr. Gary speak of him for truth particu-
larly, about that time, and it originated iu this
way: he was my foreman in the paint shop, and
this man was an apprentice in the same shop,
and he said he had every confidence and trust in
him, in every way, I have heard him speak of him
frequently, as saying what James Atkinson would
say, he eould rely on. Who else have you heard
speak of him in the shop, besides Michael Gary ?
I have heard my oldest son speak of him. Who
else ? I don't know that I have heard any one
else. I understand you to say that you have nev-
er heard any one outside, speak of this man's
character one way or the other, before this affair
occured? No, sir. And you say the general
opinion is, that he is a very reliable man, so far
as truthfulness is concerned among those,who
have worked with him in the shop ? Yes1, sir, I
know it sir, as much as any man. You spoke of
Thomas A. Hendrick's having a tolerable* fair
character for truth, what do you mean by that,
that his truthfulness has been questioned ? I
only referred to transactions of business, there
are "some men that I would rely on more than
others. And he is one you would not rely upon ?
It would depend on circumstances. What sort
of circumstances ? I don't think he is altogether
as reliable as some men I have mentioned. Don't
you know he is a notorious liar? I know his
.character is not so good for truth as those I have
spoken of. Don't you know that this young man
Atkinson has established a character for vapor-
ing, big talk, or big stories, I dont mean mali-
cious lies ? No, sir, he is a quick, shrewd, smart
young man, as you find any where, and if there
is anything to be seen he would see it as soon as
any man in this hall. You say you have never
heard any such statement from any quarter, about
him, as being given to telling big stories ? No,
sir. You know nothing about this killing of
Beebee ? Nothing at all, I didn't even go to the
market house.
Re-direct examination resumed by the Counsel
for the accused:
I understand you to say that these men that
you have spoken of are men that you have known
long, men who have long resided in the commun-
ity where you live, and that though you can't say
that you have ever heard any one speak of their
character for truth in particular, you have never,
in the whole course of their lives, heard their
character for truth called in question ? I never
have. And from that, and from the fact of their
always having borne good reputations, that you
unhesitatingly say that they are men whose char-
acter for truth is good? Yes, sir. You have
never heard any man say that the character of
Governor Worth, of this State, was good for truth
have you ? No, sir. But you think you are per-
fectlv confident to say that his general reputation
is that of a man of truth? That would be my
statement, sir. When you speak of these men
having good reputations for truth, I understand
you to say that yon speak of them from your own
personal knowledge, and from the fact that they
have always been in good repute among their
neighbors and among their acquaintances, and
that you have never heard any man call their
character for truth into question ? I have never
heard the character of one of them brought into
question. Are they considered reliable men in
the community in which they live for truth?
Yes, sir. Strictly reliable ? Yes, sir. Now, with
regard to what you have heard said since the
killing,, since the parties came up here and testi-
fied, I want that, sir; has the subject of James
Atkinson's testimony been spoken of at Fayette-
ville ? I harve heard it spoken of by a great many
persons. During the time yon have heard it
spoken of have you heard one man—one single
man—doubt the correctness of his testimony in
any one part ? I have never heard one single one.
On the contrary, sir, I ask you whether any man
Counsel for the prosecution objected to the
question.
Counsel for the defence asked upon what
ground.
Counsel for the prosecution :
Upon the ground that you had the examination
in chief; that I did not call out the statement in
regard to it in the cross examination, and yon
have no right to examine as to new matter, apart
from other reasons.
Counsel for the defence :
I shall not insist upon the question of you ob-
ject.
Counsel for the prosecution :
I do object.
Re-direct examination resumed.
So you give the Court to understand that when
you say that you know the character of this man
for truth that your knowledge is gained rathe
CONVENED AT RALEIGH, NORTH CAROLINA.
275
manner you have stated, to-wit: from what you
have known of the men themselves,—from you
having lived in the same community with them,
and from your having never heard any man doubt
their veracity, or call their character for truth in
question at all,—and that you have precisely the
same knowledge of their general character for
truth that you have of the general character tor
truth of other men in the State of North Carolina
who are ackuowledged to be men of undoubted
veracity ? Yes, sir.
Ahchibald McLean, a witness for the defence,
having been first duly sworn, testified as follows:
Direct examination by the Counsel for the ac-
cused:
What is your name, sir? Archibald McLean,
sir. Where do you livd? In Fayetteville. For
how long? Some thirty years. In what public
capacities have you acted there? I have been
Clerk of the County Court, County Trustee,
Cashier of the Bank, and Mayor of the town.
For how long a period have you been Mayor?
For eight or nine years. Are you acquainted with
William J. Tolar ? Yes, sir. Do you know his
general character ? I do. What is it ? Good.
Do you know the general character ot Thomas
Powers? Yes. How long have you known
him? I suppose eight or ten years. What is his
general character for truth ? I never heard any
thing against it. Are you acquainted with Ralph
B. Lutterloh ? Yes, sir. Do you know his gen-
oral character for truth ? 1 may say I do. What
is it? Good. Are you acquainted with J. G-
Leggett? No, sir, not to allow one to speak of
his character. With Ichabod B. Davis? Yes.
For how long ? I suppose eight or ten years.
Are you acquainted with his general character for
truth? Yes, sir. What is it? Good, us far as 1
have any information. Are you acquainted with
JohnMullins? Yes, sir. How long have you
known him? From a boy. Do you know his
general character? Yes. What is that charac-
ter? Good. With James Atkinson? Yes, sir,
for along period. Are you acquainted with his
general character? Yes. What is it? Good.
Do you know Sebastian S. Arey ? Well I know
him as a boy. Do you know whether he has
established a character for truth? Iknownoth-
ing to the contrary. Are you acquainted with
his general character for truth? Well, I can't
say I have any information about that; I know
his father and his family very well. Are you ac-
quainted with Washington Faireloth ? Not
much—he is a boy. Have you ever heard any
thing against the character of either of these
boys ? No, sir, 1 believe they have the reputation
of being orderly boys. Are you acquainted with
Gurdon S. Demming ? Yes. How long have you
known him ? I suppose for twenty years. What
is his general character for truth? .Good. Are
you acquainted with Philimon Taylor? Yes,
sir. For how long ? For twenty odd- years.
Do you know his general character for truth ?
Yes, sir. What is it? Good. With David Cash-
well? Yes, sir. Do you know his general char-
acter for truth ? 1-do. What is it? Good—exem-
plarily good. Are you acquainted with Mrs.
Lucy J. Davis? Yes. For how long? Six or
seveu years—five or six I guess. Do you know
her general character for truth ? Yes, sir—I sup-
pose I do. Well, sir, just say whether you do or
do not? I do. What is that character? Good.
Are you acquainted with Delia Stewart ? Yes,
6ir. For how long have you known the old lady?
I suppose ten years. Do you know her general
character for truth. Yes, I might say so, I know
nothing against her character. Do you know
Henderson Lockamy ? White? Yes, sir. I can't
get him to my mind. He describes himself as a
spirit barrel cooper ? I don't tliinkl can call him
to mind—I may know him if he were here before
me, but I can't think to whom you allude. Are
you acquainted with James H. Jones, son of Da-
tus Jones? Yes. For how long? Well, I knew
him as a boy, for a considerable time, but my at-
tention was directed particularly to him in the
commencement of 1861. Do you know his gene-
ral character for truth ? Yes, sir. What is it ?
Good, as.far as I have ever known. Are you ac-
quainted with Walter Watson ? The gun smith?
Yes, sir? An Englishman ? Yes, sir? Iam.
How long ? Since two or three years ago. Do
you know his general character for truth ? I nev-
heard any thing against it. Well do you know
his general character lor truth ? Well, I suppose
I do, I have seen the man—an industrious —I sup-
pose I can say that his character for truth is good.
Are you acquainted with Thorrafl A. Hendricks ?
The Factory man ? Y es, sir ? i am. How long?
Six or seven years. Do you know his general
character for truth ? Yes, sir. What is it ? I
know nothing of its being any other than good.
Cross examination by Counsel for the prose-
tion :
Were you in Fayetteville the day Archy Beebee
was killed? No, sir. You were not? No, sir.
In giving the characters of those persons named
to you, is it your own opinion you give ? Yes,
sir, and what I know of the reports around in re-
gard to them. Is it the one that you yourself
have of them, or is it that which is held by the
community; when you say you know a man's
general character, do you mean what the neigh-
bors think of him ? "Yes. And in those cases,
when you say you know a man'.s general charac-
ter do you mean what the people in the neigh-
borhood think of him? Yes, sir. Did you say
you knew the general character of Thomas A.
Hendricks ? Yes, sir, And you said his charac-
ter was good? Yes, sir. Did I understand you
to say you never heard it called in question, for
truth? Yes, sir. Who did you ever hear speak
well of him, for truth ? I don't remember. Did
you ever hear any one speak of his .character
tor truth at all, one way or the other? I don't
know that his character was ever brought in
question; he passes, as far as I know, for a
man of truth. But don't you suppose a great
many men live and die without any general char-
acter, without acquiring any ? Yes,"without the
attention of a great many persons being called
to them. Do you swear that all these persons
whose general character you say you know, have
a general character ? Well, when I say a general
character, I don't mean as a public, officer, but,
as far as the word will apply to a private citizen,
I do, sir; 1 would say that the public eonce-
ded their character to be good. I understand
that you mean their characters were never called
in question ? Well, that is one of the points.
Do you mean to say that James Atkinson, for in-
stance, has established a general character at his
time of life? Yes, sir, I think he is pretty gene-
rally known. You think he has a general repu-
tation ? I think he has. How often have you
heard his general reputation .spoken"of, before
the murder ot Archy Beebee? I cannot name a
time. Did you never hear of any reputation with
regard to him; I don't want your opinion, nor a
history of his life, nor yet individual acts, but
what did people generally say of him? Well, I
have had him before me as witness while Mayor,
have observed his conduct while an apprentice,
and have heard the boys remark about his neat
appearance-and orderly manner frequently. Did
you never see a liar with a clean shirt? Yes,
lots of thorn. You say you heard them remark
upon his neat appearance? I mean my attention
276
PROCEEDINGS OF A MILITARY COMMISSION,
■was directed that way frequently; it was gene-
rally remarked that he was kind to his mother, a
spirited and clever boy. Well, sir, I don't see
that anything yet has been conceded with regard
to his truth. I have never heard anybody speak
of his general character for truth, but I have ta-
ken his testimony myself for truth: I never heard
it assailed. Did you ever hear anybody say he
was particularly truthful? When I have taken
his testimony all bands conceded it. Did you
ever hear any one speak of his character for truth
at all 5* I can't say that I ever did. Did you ever
hear anybody speak of the character for truth of
E. P. Powers ? Do you mean if I have heard ev-
er, that he would or would not tell truth? I
mean did you ever hear his character for truth
discussed ? I can't say positively that I have ;
but I consider he has a good character, generally,
when he keeps good company, and when good
young men associate with him; he seems to
pass before the community as a truthful man. I
understand you to say you never heard his char-
acter for truth discussed ? I mean I never heard
a man say directly that he would or would not
tell the truth. Did you ever hear his character
for truth discussed ? I cannot say that I did.
Did you ever hear Mr. Lntterloh's character for
truth discussed ? No, sir, I cannot say that I
did. Then I understand you, generally, and
without going through the entire list of names,
that when you spoke of the general characters of
the parties named to you, not that they have es-
tablished one, but that you never heard anything
against it? Yes, sir, I have no hesitation in say-
iug that I never did. I understand that is what
you mean by their reputation? Well I mean
what the community concede to them. What do
you mean by " concede " ? Well letting them
pass as good men; if a man occupies a good
position in society, I take for granted that his
character is good. With regard to any one of
these men can you tell me a single one of them
whose character for truth you have heard dis-
cussed? I can't say there is any one. Walter
Watson—I understood you to give some indefi-
nite answer about him; do you know his general
character; what I mean is, have you ever heard
any one speak of him ? I can't say I have. When
you say you know his general character, you
mean, you never heard any one speak of his char-
acter for truth ? Yes, sir. You give your indi-
vidual opinion of his character lor his general
character? Yes, sir. And you say you have
known Watson for a year or two? I think over
two years. And you don't know anything of
his reputation in the community ? Well, I never
heard his character for truth actually discussed.
Then I want to know if you pretend to say you
know his general character? Well I have lonned
the opinion from what I have already stated that
he is a man of truth; I never heard his reputation
assailed, ami all seem to pass him as a man of
truth, and I take bim to he such.
Re-direct examination by Counsel for accused :
I understand you to say that you know a man's
character for truth when you know the general
estimation in which he is held by his neighbors
and the community in which he lives ? Yes, sir,
Did you ever hear the character for truth of the'
leading citizens of Eayetteville discussed—such
men, for instance, as Charles T. Haigh, or other
leading citizens ? No, sir. But you say you have
a knowledge of their general character for truth?
Yes, I would say it is good. And the same thing
that would lead you to suppose their characters
good, and to believe and declare them such, is
the same thing that prompts yon to day in the
case of the parties whose names I gave you?
Yes, sir. I understand you to say that with rc-
gard to Atkinson, he has been a witness before
you on one or two occasions, when you were
Mayor? Yes, sir. Were there any persons there
interested in contradicting him if his testimony
was false? Yes, sir. And even then you never
heard his character for truth called in question ?
No, sir. Is it usual, as far as your experience
goes, to say anything about a man's character
for truth at all, unless it be suspected of false-
hood? It is not usual with us. And while you
cannot give the name of any man who has ever
said to you that the character of either of these
gentlemen was good for truth, they pass in the
community of Eayetteville as m^n good for
truth, and you have yet to hear the first allega-
tion against them ? Yes, sir.
Griffin Chandler, a witness for the defence,
having been first duly sworn, testified as follows:
Direct examination, by Counsel for accused:
What is your name ? Griffin Chandler, though I
am called Giffin Chance very often. What is your
business ? Running on the river. Jn what ca-
parity? Deck hand at present. Were you in
Eayetteville on the day Archy Beebee was killed?
I was. Were you at the market house that day?
Yes. At what time did yon go to the market
house? I can't say exactly, tliey were up stairs
when I got there. Was it in the forenoon or at-
ternoou ? I can't say, sir. Did you see Beebee
go up si airs? No, sir. Did you see Mrs. Mas-
sey and her daughter coming downstairs. Yes,
sir. Where were yon standing? On the south
side of the market, close to Becky Ben's bench
on the southern pavement oi the market house.
How far were you from the small arch on the
south east side? I don't understand exactly.
Do yon know the arrangement of the market
house? Yes, sir. Do you know what is meant
by an arch ? Yes, one of these openings. Do
you know how many arches on that side of the
market house looking down Gillespie street?
Yes, sir. Do yon remember whether there are
any small arches, one to the right and one to the
left? You know where Becky Ben's stall is?
Yes. Well ? M ell, sir, I was standing at the up-
per end of that. Could you see Miss Massey and
her mother coming down stairs? Yes, sir. Did
you see them when they went to the carriage and
got in? Yes, sir. Did you look at the carriage
while it was standing there, until it went away?
Yes, sir. Do you remember who went to the
carriage ? When ? Between the time they got
in and the time the carriage was driven off?
Well I can't be positive, and ! won't say unless I
know it. You were about the same place when
Archy was brought down ? Yes, sir. At the time
he first appeared on the landing? Very near the
same place, sir. Did you see him there ? I saw
him when he got down. When he reached the
floor of the market house? Yes, sir. Did anj-
thing occnr there to attract your attention, could
you see him until he got up to the main eastern
arch going out? Well there was a crowd, I could
not. Did you see what occurred at that main
eastern arch? No, sir. .Now, put yourself hack
precisely as you were that day, standing there and
recollect that Archy has just passed out of the
main arch and his face is turned towards the
guard house, where did yon next see him ? Well,
when he turned that arch to go towards the mar-
kot house, there was a great alarm. What was it ?
One said, " I demand the nigger," and some said,
" kill him," but I don't know who it was. Did
you see Archy at that time? Well, you see the
brick work was a sort o' between him and me
then. When did you next see him ? Well, there
was a kind of rush come towards him from down
the street and I kept stepping back towards Mr.
Hinsdale's corner, on the pavement, soon after
277
that I could see tliera coming down the corner
of the market, and I was sort'o making my way
towards Draughon's, to get behind them. I saw
Mr. Phillips there Did you see Beebee at the
time he was shot, or about there ? Not when the
pistol was tired, but I did when he fell. How far
was he off from the corner of the market house
at the time he fell ? It looked to be tour or live
feet. I don't mean from the wall, but from the
corner back toward's Draughon's, a line drawn
straight out from the corner ? It looked so to
me. When the pistol shot was fired, and a little
before, where were you standing ? Off the pave-
ment some, around towards Draughon's store.
From the position you had there, could you see
the people on the" pavement? Some oi them.
And those off the pavement down Person street ?
A good many of them. You didn't see Archy at
the very instant he was shot? No, sir. Directly
alterwards? Yes, about the time he fell. Did
you see him just before he was shot? Yes. How
long before? I couldn't say exactly. Was
he near the same point when he was shot? He
jgyas not far from it. Did you see who shot him ?
»No, sir. Did you see any weapon in any one's
hand at that time, or before ? I saw one man
with a pistol. Just when he was shot? Well,
about that time, a little before. Who was the
man? Phillips. What Phillips? Samuel Phil-
lips. Where was he standing? A little more to-
wards the Cape Fear Bank—I mean he was a lit-
tie more on the side towards Davis' tin shop,
than on the other. Was he off or on the pave-
ment? I can't be positive, he was from it any
way. Was he to Beebee's left, or right, or front,
or where? He was this way like Cleft and front.)
Did you think it was left and front, or left and
rear? I don't understand exactly but he was
BO, (illustrating again left and front.) How far
from Beebee ? About as far as that gentleman
there, (pointing to a gentleman about nine feet
from him.) How long before the pistol was
fired did you see him ? I couldn't say, sir. Did
Beebee take any steps at all down the pavement
after the time you saw Phillips, and before he
was shot? I can't say. sir. How long before
Beebee was shot, say as nearly as you can. I
don't exactly understand How long before he
was shot was it that you saw Phillips with the
pistol in his hand ? A short time. Could you
have counted five ? Yes, sir. Could you have
counted ten ? I can't say, sir. You think you
could certainly have counted five ? I think so.
What was Phillips doing with the pistol? He
had it pointed that way and was working it so,
(witness illustrates by holding his arm out at full
length, and moving his hand up and down gent-
ly.) Was it pointed in the direction of Beebee?
Well, it must been that way. And a short time
after that you hea>-d the pistol fire? Yes. t How
many persons were there between Beebee and
Phillips at the time you saw the pistol in his
hand ? I can't say, there was a crowd, and when
some one said "kill him !" I got seared, and—
Did jTou see the smoke ? I couldn't say, sir. Did
you sec the flash ? I couldn't' say that I did.
Did you hear the report ? I did, sir. From what
point? I couldn't say, exactly. You swear that
just before he was shot you saw Phillips with a
pistol pointing it towards where Beebee was?
Yes, sir. And directly afterwards you heard a
pistol fire? Yes, sir. You didn't see the smoke
nor the flash, and can't say where the report
came from ? No, sir. Did you see anything of
Phillips after that time ? No, sir, I saw Beebee
lying on the ground, and then went straight to
my work. Did you see a pistol in anybody's
hand at any time that day, before you saw the
pistol in Phillips' hand? "No, sir, I"hadn't- been
there long. Had you seen Phillips before du-
ring that day? No,sir. So that all you know of the
matter is confined fo the short space of time in
which you think you could have counted five, just
before "Beebee was shot? Yes, sir. Did you see
what Phillips did with that pistol ? No, sir. Did
you notice whether it was cocked or not? No,
sir. Were you ever subpeened as a witness in this
case before? I came here once. Did you come
on the subpoena? I don't know what you call it,
they fetched me a piece of paper and told mc I
must come here and I did. Did any body ask
you what you knew about it? Yes, sir. Who ?
That gentleman, (pointing to the Judge Advo-
cate.) Did you tell him substantially "the same
thing that you have told here to-day ? I think I
told him, as near as I recollect, everything I knew.
Did you tell him you saw Phillips with a pistol ?
I told him just what I have told here, and that's
all I know about the thing.
Cross examination by the Counsel for the pros-
ecution:
Who went to the carriage with these ladies;
who helped them in ? Let me study a minute;
it seems Mr. Powers went with them, didn't he?
Well, I am asking you the question ? Well, sir,
I wont be positive, but it seems Mr. Powers did,
that's all I know about it, so help my Almighty
God. You say that when Archy got out of the
arch and came out on the pavement the hullabaL
loo was made and you got scared? Yes, sir,
there was such a to-do about it that I got
scared. Had you seen Sam. Phillips before
you were frightened, or was it after? I can't say
sir, but they were so soon after each other—I
can't say, sir, indeed which. I understand you
were standing on the south of the market house,
near the south-east corner ? Yes, sir. On the
pavement, with your hack towards Mr. Hinsdale's
store? Yes, sir. When you saw Sam. Phillips,
where were you standing, on the pavement
or off? I think a little off—if I was'nt off,
I stepped off. Was he right straight in front
of you? Well if he was not exactly so, he
was a little to my left. You were on his right
and front ? Yes. Let that represent the east
end of the market house, (diagram shown to
witness) Hinsdale's store is right here, (point-
ing); Beebee was right here you say, (pointing.)
Yes, sir. Where were you, looking east? Yes,
sir. And you were standing np here, (pointing.)
Yes, sir. How many feet from the corner, were
you off the pavement ? At the time I saw Phil-
lips I stepped off. Now here is Beebee (point-
ing,) were you on his right? Yes, sir. Where
was Phillips ? He was standing about that di-
rection, about here (pointing.) "in front and left
of Beebee and nearly opposite jrnu? Yes. So
that if you were looking due east you would see
Phillips ? Yes, sir. Which side of you was Phil-
lips? A little more to my left. How much?
About a loot, I would not say. Have you seen
this diagram ? No, sir. Where was Phillips
standing? Here, towards Mr. Davis' (pointing.)
Re-direct examination by Counsel for ac'cused.
You say Phillips was either on the edge of the
pavement or off? Not far from it, I wouldn't
positively say unless I knew it.
At 1 o'clock, P. M., on motion, the Commis-
sion adjourned until the 4th September, at 11
o'clock, A. M.
Raleigh, N. C., Sept. 4, 1867, 11 A. M.
The Commission metpursuant to adjournment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused and their Counsel.
The reading of the testimony taken on Yestcr-
day, was waived, there beingjno objection thereto.
278
PROCEEDINGS OF A MILITARY COMMISSION,
Yesterday's proceedings were then read and ap-
proved.
Israel Bond, a witness for the defence, having
been first duly sworn, testified as follows:
Examined by the Counsel for the accused.
What is your name? Israel C. Bond. Where
do you reside? Fayetteville. How long have
you resided there ? Between four and five years
sir. What is your business in Fayetteville ? I am
town constable. What was your business on the
day Archy Bee'bee was killed ? I was town con-
stable, sir. Were you in Fayetteville on that day ?
I was sir. Did you assist in carrying Archy from
the guard house to the market house ? I did sir.
Did you see Mrs. Massey and her daughter Elvira
there that day ? I did sir. Did you see them up
into the marfcef house ? I did sir. Did you go
up there with them ? I did sir. During the time
they were up there, did you come down from the
market house at all ? I did sir. For what pur-
pose did you come down ? To get a drink of wa-
ter. At what time was that, how long before
Mrs. Massey and her daughter came down stairs ?
I could not set any time, I have no idea that it
exceeded fifteen or twenty minutes or half an
hour any way. 'Where did you get your drink of
water from ? I disremember, sir, whether I got
it under the market or at Mr. Davis' store, I can't
be positive. How much of a crowd was there at
the market house at the time you came down to
get a drink of water? I could not say sir,
there was a right smart gathering about there.
Did you notice whether there was any crowd out-
side of the market house upon the eastern side ?
They appeared to be partly under the eastern
end and in front, sir. And you can form no esti-
mate of the crowd ? I cannot, sir, fori didn't
stop one minute at all, I immediately got my
drink of water and went up stairs. Did 3'ou
speak to anybody while you were there at that
time ? I think not, sir. Nobody spoke to you ?
Not that I can recollect. Did you notice any-
thing unusual in the crowd ? I did not, sir, most
positively I did not. Did you see any persons in
the crowd with weapons ? No, sir, I did not.
Then you went back up stairs, did you come
down again before Miss Massey came down ? No^
sir. Did you escort Miss Massey and her daugh-
ter down ? I did, sir. Where did you carry them ?
To the carriage, sir. Where was the carriage?
It was directly in front of the main eastern arch
as well as I can recollect. On the pavement or
off the pavement? Off the pavement. How far
off the pavement ? I think ten or twelve feet,
sir. Were there two horses to the carriage or
only one ? Only one, sir. Which way was the
horse's head turned ? North, I think. So that
threw one side of the carriage parallel to the east-
ern point of the market house ? Yes, sir. What
sort of a carriage was that ? It was a two-seated
rockaway, sir. Did it have curtains ? It did, sir.
Were any curtains up? The front curtains on
both sides were up. Were there two curtains on
each side? There were two, and perhaps three—
some carriages have three. How many curtains
on each side were up there? One on each
side. And that was the front curtain? Yes,
sir. So there were left down on each side
at least one back curtain and perhaps two ?
Yes, sir. The rear curtain was that down or up ?
It was down, most positively it was down. Did
any person speak to the young lady or her moth-
er between the time that you started with them
from up stairs to the time you seated them in the
carriage? No, sir. Which side of the carriage
did they get in ? On the eastern side sir. Which
seat of the carriage did they occupy ? The back
sir. Which side of the seat did Mrs. Massey oc-
enpy ? The right sir. And her daughter occupi¬
ed the other side? Yes, Sir. How long did you
remain there at the side of the carriage; next to
the market house after you had seated the ladies
before you changed your position ? One or two
minutes I presume, it might have been longer.
Who came up to the carriage while you were
there, upon that side of the carriage next to the
market house and before you changed your posi-
tion ? I think Mr. Tom Powers walked up there
sir. Did he have any conversation with the la-
dies? He merely spoke to his sister and said
"howdy Helen." Did he give her his hand?
Yes, sir. Did he have any conversation with her?
Not that I could see, sir. What became of Tom
Powers after that ? I don't know, sir. That was
while you were on the side of the carriage next
to the market house ? Yes, sir. Did you change
your position at all ? I did, sir. Which way did
you go then ? I walked to the rear and right of
the carriage, sir. That side of the carriage which
was nearest down towards the bridge ? Yes, sir.
Did you see what became of Tom Powers after
he Lad given his hand to his sister? I did not,
sir. Did you notice whether he stood there, oq
moved away ? I don't know, sir. How far to
the rear of the carriage did you pass in going
around it ? As near as a person could pass. Did
you meet any one at the rear of the carriage ?
No, sir. How fur was Maultsby off from the rear
of the carriage ? About ten feet I presume. Did
you have any conversation with him when you
passed there to the rear of the carriage? .No,
sir. Did he have any conversation with you?
No, sir. Not a word passed between you ? Not
that I can recollect of. When you got around
the carriage, who did you see ? I saw Mr. Cash-
well and Mr. Taylor. Where were they? They
were eoming from the store, sir, and were very
near the carriage. Did either of them speak to
the ladies, or to either of the ladies ? Both did,
I think, sir. Which spoke first? I think Mr.
Taylor. Did you hear what either said to the la-
dies? Mrs. Massey said to Mr. Cashwell, "Bro.
Cashwell, my troubles are more than 1 can bear,
will you pray for me "? Do you know whether
he made any reply to that? I don't, sir. What
became of the carriage, then ? It was drove off,
sir. Directly afterwards ? Yes, sir. Before Mr.
Cashwell was through speaking, or afterwards?
It must have been afterwards : they had no con-
versation that I could hear. Did John Maultsby
speak to the ladies at all while they were in the
carriage ? He did not, sir. And he didn't speak
to you ? I can't be positive about that. What
is your impressiou with a-cgard to it? * That he
did not. Did Capt. Tolar go to the carriage
while it stood there? He did not, sir. Have you
any doubt about that? T have no doubt under the
sun. Did he go near the carriage? Not that I
could see, if he had, I certainly would have seen
him. But you say you arc confident he did not
go up to the carnage? I am, sir. And
he had no conversation with the ladies ?
He did not, sir. Who else did you see
at the carriage? That is ail I can recollect.
Do you remember to have seen Robert Mitchell
at the carriage ? He was not there, sir. Do you
remember to have seen old Mrs. Massey ? No,
sir. Did the carriage drive off by your direction ?
It did, sir. Which way did it drive off ? Down
Person street. What became of you then ? I
immediately went up into the market house, sir.
Why was it, Mr. Bond, that you told the driver
of the carriage to move off? I have no idea, sir,
in the world ; the young lady was crying and I
probably thought the sooner she got away the
better it would be. Were you a friend of the
young lady, a special friend ? Not more than
other young ladies; I have known the girl some-
CONVENED AT RALEIGH, NORTH CAROLINA.
27^
time; sbc was under my supervision at the Sab-
bath School there. And it was for that reason
you were paying' some little attention to her?
Yes, sir. It was because you thought it would
be disagreeable for her to be gazed at by the
crowd that you ordered the carriage away ? I
think it was. You had no other reason ? None
in the world, sir. How long was it after you got
back up stairs before Beebee was brought down ?
Not exceeding fifteen minutes. Did you have
any conversation with any body when you passed
from the carriage up stairs ? Not a word. Did
any body have any conversation with you ? Not
a word. You went up stairs and Beebee was
brought down ? Yes, sir. Yotk came with the
party down ? Yes, sir. Where were you ? I
was in the rear. How far in the rear ? I was
four or five steps. Do you mean four or five of
the market house steps ? Yes, sir. Did you look
upon the crowd when you got there at the land-
ing? Not in particular, sir. Can you form an
estimate of the size of the crowd at the time you
got to the landing? I could not, sir. Did you
notice any thing unusual in the appearance of
the crowd, or any member of the erowd ? Not
at that time, sir. Did you hear any exclama-
tion, from the crowd or any members of the
crowd during that time between the time that
you came to the foot of the landing of the stairs
to the time of your reaching the floor of the mar-
ket, did you hear any exclamations from any of
the crowd ? I did not sir. You heard no excla-
mation of " charge boys, 'r "rally boys" "here
he comes" or any thing of that sort? No, sir.
How far was the prilbner in advance of you at
the time you reached the floor of the market?
About four or five feet. Did you maintain that
distance, you and the prisoner? I think so sir.
until we got out on the pavement. When did
you first notice any thing that attracted your at-
tention ? When I was turning the main eastern
arch myself sir. At that time could you see the
prisoner? No, sir. What hid him from your
view? The crowd I suppose. So the crowd in-
terposed between you and the prisoner ? Yes sir.
Well, now how was it about the gathering
of the crowd did they gather from under
the market house or from the outside? The
most of them appeared to be outside as well as I
could see sir? And they gathered there ? Yes,
6ir. What was the next thing you saw? There
appeared to be a kind of gathering or closing in
of the crowd. At that time did you hear any ex-
clamations ? I did not sir. Did you hear any-
body demand the prisoner, or words to that ef-
feet ? 1 did not sir. Did you hear the Sheriff or-
der the police to use their clubs ? No, sir. What
was the next you saw ? There appeared to be a
rush or gathering in of the crowd I donTt know
how you would term it. I want you to term it,
was it a rush or gathering in ? The people seem-
t'd to be gathering in from all around. Was any
body riming? I did not see any body
sir. At that time you were still four or
five feet from the prisoner and in his rear?
As well as I can recollect sir. What occurred
then ? As I was turning the main arch I caught
two or three men in my arms and shoved them
off, some person or persons struck me about the
hip and we all went down together. Who were
those persons that you caught ? I could not tell
to save my life sir. Who was the person that
struck you? I could not tell, it was to my rear,
and about my hip. What did he strike you with ?
I judge with a knee or something of the sort, pro-
bably I might have been pushed. Was it a heavy
blow? Not extraordinary; enough to push a
person down. What occurred then ? The pistol
fired sir. Before you recovered ? Yes, sir. Did
you see the flash ? I did not sir. Did you see
the smoke ? I did not sir. Did you hear the re-
port ? I did sir. What was the character of that
report? Not more than an ordinary pistol sir.
Not an extraordinary loud report? No, sir,
From the report of the pistol could you tell the
place or about the place from which it was fired ?
Not exactly, 1 could not sir. Did you see Capt.
Tolar there that day ? My impression is that I
did sir. When do you think you saw him ? That
is more than I am able to say I can't tell whither
I saw him before or after the killing of Beebee ?
Did you see Tom Powers there at all, after jmu
saw him at the carriage ? I don't think I did sir.
Did you see anything of David Watkins there that
day? I think I saw him afterwards sir. After
the firing ? Yes, sir. Where was he and what
was he doing? Mr, Nixon had him going off with
him. At'what place ? Between the market house
and Mr. Taylor's store,
Cross examination by the Counsel for the pros-
ecutlon.
Did you drive Miss Massey in a buggy to
the market house? I did not, sir. Was your
buggy in front of the market house? It was
not, sir. There was but one carriage, as I un-
derstand you, at the market house ? But one.
And the two ladies came in at the same carriage ?
Yes, sir. You didn't drive Miss Massey there that
day ? I did not, sir. There is no doubt about
that ? No, sir, most positively I did not. And
you say the two ladies came in the same car-
riage? They did, sir. Who drove them? A
negro boy. Do you know who it was? I forget
his name. Is his name William Wright? I can't
say. Had Archy been carried up stairs before
the carriage got there, with the ladies in it ? He
was, sir. You had been down to the guard house
and had assisted in carrying him up stairs ? I
had, sir. How came you to assist in bringing
out the prisoner ? He was in my jurisdiction. It
was a part of your regular duty ? It was, sir.
What was the reason of the number of police that
were there that day, was it customary to bring a
prisoner out of the guard house—the sher-
iff", deputy sheriff, yourself, Hornrinde, &c.?
I am not able to say for the simple rea-
son that I had not been in the office a
great while. You have been in several months,
now ? Yes sir. Is that the customary way ?
Generally when there is a desperate character, I
believe it is. Are tbey generally of a desperate
character? That is more than I am able to say.
I want to know how many times in your experi-
ence you have had that many officers to assist
you in carrying a prisoner to a preliminary exam-
ination? I suppose on one or two occasions since
that ? Who was present at the gnard house and-
assisted in bringing Archy up to the market
house ? There was Mr. Wemyss and Mr. Horn-
rinde, Mr. Faircloth, Mr. Brown, Mr. McGuire
and myself Was the Sheriff there ? I think
not, sir. Was he inside as you came on up—do
you remember the Sheriff's making any move-
ment or giving you any sign to bring the war-
rant? I do not, sir. Was the prisoner in your
immediate custody ? He was, until he was de-
livered at the market house. You came on up
stairs with him at that time? Yes, sir. Was
Hardie up stairs then ? I think he was. You
say, the carriage, with the ladies in it, had
not come up at that time? It had not. Did
you return down stairs immediately? I
did; sir What was your object in go-
ing down ? I went after the ladies. Did you
find the carriage at the doorwbenyou got down ?
No, sir. Where did you go ? They were at Isaac
Hollingsworth's house. You went to his house?
Yes, 8ir. Did you get into the carriage ? I did
286
PROCEEDINGS OP A MILITARY COMMISSION,
not.. You walked back ? I did, sir. How far is
Isaac Hollingswortli's place from the market
house? Nearly the distance of one block. The
carriage was in your sight all the time ? Yes, sir.
And you followed the carriage up from Rollings-
worth's and assisted the ladies out? Yes, sir.
And assisted them up stairs ? Yes, sir. You re-
mainedup stairs fora'short time? Yes, sir. "Was
it fifteen minutes? I can't say exactly. You
then came down to get a drink of water? Yes,
sir. Was there no water up stairs; is it custom-
ary to keep the justices there without such ac-
commodations as these ? I don't know, it is none
of my business. You wanted water and found
none there? Yes, sir. You say you can't esti-
mate the crowd at that time? No, sir. You got
the water lrom where ? From under the market
house or at Davis', I don't know which, sir. You
returned immediately and wen.t up stairs ? Yes,
sir. During that time yoursay you had no con-
versation with any one—do you mean you recol-
lect or are you confident you had none ? I can-
not be confident, but I am almost sure. You
went hastily to get a drink of water and you re-
turned hastily? Yes, sir. When the examina-
tion was over you came with Mrs. Massey and
her daughter when they went, to the carriage ?
Y"es, sir. You came with them directly to the
carriage? Directly, sir. Was Mrs. Massey veiled ?
I am not able to say. Did she use her handkerchief
or did she. look as if she was weeping ? I am not
positive. Do you know whether her face was
covered as she passed through the crowd ? I can't
say. Your impression is that she was veiled?
Yes, sir, she was weeping but I can't say whether
she was using }ier handkerchief or not. You say
this carriage was standing about ten feet from
the market house, from the eastern arch of it?
Yes, sir. From the pavement or arch? From
the pavement sir. The width of the pavement is
about eight feet ? Yes, sir. Was it directly in
front of the arch ? I think it was, but wont be
positive. Did you find any difficulty in making
your way through the crowd? Not a bit. Was
the crowd dense enough to obstruct your pas-
sage ? Not at all. Did you notice the size of the
crowd at that time ? Not particularly. Did you
notice particularly, did you notice whether it was
larger or smaller than it was the last time you
passed there ? I don't think it was any larger.
Up to the time you assisted the ladies into the
carriage nobody had spoken to them or you ?
No, sir. You say as I understand you that the
right and left curtains by the side of the front
seat were up? Yes, sir. But the right and left
curtains by the side of the backseats were down ?
Yes, sir. And the back curtain of the rockaway
were down ? Yes, sir. So that the back seat was
all closed in? Yes, sir. Mrs. Massey seated her-
self on the right with her face north? Yes, sir.
Was the boy who was driving the car-
riage at the carriage when you got up
there? Yes, sir. Did you not have to send
for him? No, sir. You found him there?
Yes, sir. You say the first person who got up
to speak to the ladies was Mr. Tom Powers?
Yes, sir. He shook hands with his sister ? Yes,
sir. Was Mrs. Massey weeping also at that time?
Yes, sir. Did you hear her reply to his saluta-
tion ? No, sir. Was that the whole conversa-
tion that passed between them ? I heard no oth-
er—if they said anything I certainly would have
heard it? When you moved from that side of
the carriage to the opposite, did you see Tom
Powers still standing there ? I don't recollect,
I am not positive. You don't recollect seeing
him go away? No, sir. Did you hear any con-
versation from Mrs. Massey, exhorting him to
leave the crowd and not to get into difficulty ? I
did not, sir. Did you hear anything of that sort;
refresh yourself and think of it, can't you think
of anything of that sort that was said in your
hearing ? I do not; at that time I walked round
to the right, and probably she might have said it
to him, but I did not hear it. You have no rec-
ollcction of it? No, sir. You went round to
the rear, and you say you noticed there Maultsby
about eight or ten feet from the rear of the
carriage ? I think about that. Which way was
he facing ? North, looking towards the carriage,
I presume. Did he speak to you ? Not at that
time. Had you seen him before that day ? I
think I had. He didn't salute you even in pass-
iug? Not that time. Was he talking to any one?
Not that I saw. Was he detached from the crowd?
It appeared so to me. You saw no one with hioi,
and he was outside the limits of the crowd? Yes.
I suppose the crowd was not standing out that
far? Not near. He was alone ? Yes, sir. Then
Mr. Ta3'lor and Mr. Cashwellcame up ? Yes, sir.
Do you swear positively that Mitchell was not at
that carriage while it was out there? I do, sir.
After he went round to the right of the carriage,
Mr. Cashwell came up and Mr. Taylor; andal-
most immediately after that he had some con-
versation with Mrs. Massey; then the carriage
drove off under your directions? Yes, sir. Did
you see Mr. Taylor speak to the ladies as well as
Mr. Cashwell? I think so. What did he say ?
I don't know, he merely shook hands with them.
Do you think he said anything? I cannot say,
probably he might have said " how do you do ?"
but I don't recollect. Your impression is that
he said nothing? Yes, sir. Have you any deci-
ded impression, way or the other ? I have not.
You heard Mrs. Massey tell Mr. Cashwell that
her troubles were more than she could bear, and
ask him to pray for her ?' Yes, sir. How long a
time elapsed from the time you left the steps
with the ladies until the time the carriage drove
off? It might have been five minutes, probably
not so long. Now what is your best estimate?
I would say three minutes. Alter the carriage
drove off, did you see what became of Mr. Cash-
well? No, sir. Did you see what became of
Taj-lor? I did not. Nor Tom Powers ? No.
Nor Maultsby? Nor Maultsby. But you swear
positively that you did not encounter Maultsby
on your way back to the market house, and he
said not a word from the time you came to the
foot of the stairs with the ladies until the time
you came up stairs ? I can't be positive, my im-
pression is he did not. But you cannot speak
with positiveness ? No, sir. Do you remember
his asking whether Miss Massey had identified
the boy Archy? 1 don't, sir. Do you remember
his asking you any such question as whether the
justices had committed Archy ? I do not, sir.
Do you remember any such question being asked
by any one ? I do not, sir, Did you tell any one
the result of the trial ? I did not. Did you not tell
any one whether Miss Massey had or bad not
identified this boy Archy as the person who had
been guilty of an attempt to ravish her? I don't
recollect. When you say you don't recollect do
you mean that you did not, or that you have no
recollection? It is my opinion that I did not, I
can't be positive about it. After the examination
was over and you came down stairs, did any one
come down before you who was present at the
examination ? 1 am not able to say, sir. Do you
remember who was in the room? I could not
tell, although I could tell you probably a few of
their names, I could not tell you all ? You can't
say for certain whether any one preceded you in
coming down? I can't say. The whole of the
party had not gone down ? No, sir. Had the.
parties who had participated in the examination,"
CONVENED AT RALEIGH, NORTH CAROLINA.
gone down? No, sir. Had the Sheriff gone
down ? I think he had not. If any went down
you don't recollect? I do not, sir. Was the
whole guard there that went up with Archv,
according to your best recollection? I think
they were up stairs. You returned immediately
up stairs? Yes, sir. Did you notice the ah-
6enee of any one whom you had left up there ?
I did not, sir. Have you any idea whether any
one had left there or not ? I am not able to say
realy sir. Were any of the Court gone, with
whom you were associated ? I think not sir.
Were the justices still there that had participated
in the trial ? Yes, sir. The prisoner was there ?
Yes, sir. Did you notice whether the witnesses
were there who had been examined? Mrs. Mas-
sey was not there at that time. Of course not—
but I spoke of the other witnesses—if they were
there—whether you noticed the absence of any
one during the time you were absent? My im-
pression is that the same company was there that
I left there. Your impression is that you were
the first, after the trial was over, who left the
justice's room ? With the ladies; yes, sir. And
your impression is that you were not asked by
the crowd, nor did you communicate what the
result of the examination was? No, sir. And
you impression is that you had no conversation
with Maultsby upon the subject, but that you
you can't be very positive ? I can't be jjositive
about it? You s\year very positively that Cap-
tain Tolar was not at the carriage while the la-
dies were there, and before they drove off? Yes
sir. Had you seen Capt. Tolar before at any time
that day before the carriage drove off ? I am not
able to say whether I saw him before or after-
wards—my impression is that I saw him but
where, I can't say. Your impression is you saw
him in the crowd some time that day ? I can't
say that, I am not able to say whether I had seen
him in the forenoon or in the afternoon. I want
to know whether your impression was that you
saw him at all about the market house ? I can't
say positively whether I saw him there or where
I saw him, You can't say whether it was about
the time this man was on trial that you saw him?
No, sir. But you had an impression you had seen
him that day? Yes, sir. But you have a very
distinct impression that you saw him at the car-
riage? I am quite positive about it sir. And
you are certain that Mr. Mitchell did not go to
the carriage? Yes, sir. You are as certain of
one fact as you are of the other ? Yes, sir. How
long did you remain up stairs after you returned
lrom the carriage before Arcliy came down ? I
should say ten minutes, I would not like to go
under that, and I would not go over fifteen,
Was there any thing else to be done before the
justice of the peace when you returned ? I think
not. How was the time occupied, that ten or fif-
teen minutes you were up stairs in the market
house after you returned ? I might have been
sitting there waiting for them to commit him,
6ir. The order for commitment hadn't been
written out? The justice was writing it at
the time, sir. When you went down with the
negro you were four or five steps behind
him? Four or five steps sir. Did I under-
stand you to say it was four or five steps on
the stair steps ? That is before 1 got to the plat-
form. 6ir. What do you call the platform?
Where the door opens going up into the market
house. The first landing you mean? Yes, sir.
When you came down to the landing Archy was
before you ? He was in front of me. He went
out of the door before you got to the landing?
Yes. sir. As I understand you he was down four
01* five steps towards the floor of the market
house before you started down the last flight of
steps? Yes, sir. When Archy went out do you
remember how the group that surrounded liim
went out, who went out first, of the officers sur-
rounding him when he appeared in view of those
who were inside of the market house ? I thinlt
Mr. Hornrinde and Mr. McGuire were in front of
him, Mr. Wemyss on his right, and Mr. Faircloth
on his left. What became of Sheriff Hardie ? My
impression is, he was in front too at that time,
but as soon as he got under the market house he
was in the rear. Do you mean that Sheriff Har-
die, when he got to the floor of the market house
preceded the prisoner ? He was there in front of
Mr. Hornrinde or Mr. Maguire or in front of the
prisoner, they were therein someway. Your
impression is that Mr. Hardie went out in front
of the prisoner ? Yes, sir. Until he came to the
floor of the market house ? Yes, sir. Then you
say he got behind him ? I think lie did, I am not
positive. You covered the rear? Yes, sir. You
say there was no demonstration made at all as he
was coming down stairs ? No. sir Did you hear
any one say " there he comes ?" No, sir. No ex-
clamations at all ? I have no recollection. Did
you notice the size of the crowd at that time?
Not particularly. Was there any crowd there ?
Yes, considerable. How many men do you think?
There might have been one hundred and fifty sir.
Now when this man came down stairs, do you
mean to say the crowd stood stock still ? They
were standing looking at him. Were they mo-
ving ? That is more than I am able to say. You
did not see any movement towards the prisoner
and the crowd didn't appear as though they were
attracted by the prisoner ? My attention was at-
tracted to him, I didn't notice the crowd. You
didn't see the crowd ? Of course I saw the crowd
when I got on the landing. What I want to know
is whether there was any movement in the crowd
as the prisoner came in sight? I can't say. Did
you not observe a natural curiosity manifested
by the crowd ? If I had been in the crowd I
might have noticed it. You can't remember,
having observed it? .1 didn'tnotice particularly.
You didn't know any man in the crowd? Not
particularly. Did yon observe any man in the
crowd at all? Iam not able to say sir. You
said the negro boy got to the foot of the stairs
outside the arch before you saw any disturbance ?
Yes, sir. Up to that time you had seen no rush
made on him ? I had not, sir. And no assault ?
No, sir, You had seen 110 weapons in the hand
of any one? No, sir. No exclamation at all?
Not any. Neither a demand for him nor orders
of resistance upon the part of the Sheriff? No,
sir. I understand you to say then that from the.
time Archy got 1o the foot of the steps until he
got outside the eastern arch on the pavement his
passage through the ten or twelve feet was just
that of any other prisoner ? It occured to me so.
You then got to the eastern arch of the market
house yourself? Yes, sir. Archy was taken
outside ? He was. Four or five feet in front of
you? Yes. And when you got there
you noticed some disturbance? Yes, I was turn-
ing the arch. Do you mean when you were turn-
ing out of the market house ? Yes, I was turn-
ing out of the arch and turning in the direction
he was going. You were standing right in the
arch when the crowd passed through ? Yes, 6ir.
What was the disturbance ? It appeared to be a
gathering in, or a rush—.you may term it as you
like, the crowd was closing up. Was the whole
crowd closing up? It appeared so to me. Was
it then you got the push in the back ? Just as I
had shoved these men oil. What was your ob-
ject in shoving them off? I had no idea they had
any business there crowding up, I don't know
why 1 did it, I was excited. Which way was
282
PROCEEDINGS OF A MILITARY COMMISSION,
your face ? I think down Person street. Which
way were these men coming that you caught in
your arms ? They were pushing down south.
Did you press them back ? I did, sir. Was their
resistance pretty strong ? Tolerably, sir. About
that time you got the thump on the hips? Yes,
sir. It was in that gathering up that you got this
thump? Yes, sir, when I was pushing these men
off. That gathering up that .you have been speak-
ing of, was the same thing that occasioned you
to press back these men, and the occasion of the
thump you got that was strong enough to knock
you down? Yes, sir. After this gathering up,
when you were recovering yourself—the pistol
lired ? Yes, sir. How far did you fall when you
fell ? I disremember whether or not I reached
the edge of the pavement; it shoved me some
distance across the pavement. When you recov-
ered you were standing near the edge of the pave-
ment? Yes, sir. When you received the shove,
you were standing in the arch ? No, sir, I was at
the edge of the arch in the act of turning the
arch. I understand you to say that you were
standing in the arch in the act of passing through?
Yes, sir. How thick is the wall of the arch,
then? About eighteen inches. When you were
turning the arch—I want to know whether you
mean turning out of the market house to go out
of the arch, or turning out of the arch to go on
to the pavement ? When I was turning out of
the arch to go on to the pavement. The shove
sent you nearly across the pavement then ? Yes,
sir. You heard the pistol fire? I did. Do
you remember what sort of a day it was ? I
think it was a little windy. Do you remember
in what direction the wind was ? I do not, sir.
Do you remember whether it was a sunny day or
cloudy? I am unable to say. Your impression
is that it was a windy day ? Yes, sir. You didn't
see the smoke of the pistol? No, sir. Did not
see any sign of it in the atmosphere? No, sir.
Did you perceive the smell of sulphur? I didu't
pay particular attention. But you did hear the,
report? I did, sir. Did you see the prisoner
Beebee fall ? No, sir. How far was he from you
when he fell ? He might have been six feet, prob-
ably eight. Which way was your face at the time
you heard the pistol fire if you had been stand-
ing erect ? East, sir. Can you tell whether the
report of the pistol was on your right hand or
left ? On my right as well as I can recollect.
You recovered yourself immediately after the
Fistol fired ? The pistol fired before I recovered,
was in the act of recovering before the pistol
fired. You recovered yourself immediately af-
terwards, and then you moved towards the pris-
oner; is that correct, sir ? Yes, sir. Did 3rou
make any effort to arrest the person who fired the
pistol? I did not, sir, I could not tell anything
about it. Did you make any investigation ? I
did not, sir. You were an officer? Yes, sir. You
saw a felony had been committed in your pres-
ence ? I can't exactly say it was in my presence.
You don't call that your presence ? I didn't see
it. You made no effort to apprehend the person
who committed it? No, sir, he was in the hands
of the sheriff, I had no jurisdiction whatever over
him at that time. You put it on the ground that
he was not your prisoner ? He was not my pris-
oner. And yon saw a felony committed then
and there on that spot, and made no eflort to ap-
prehend the person who committed it ? No, sir.
Did you see any effort on the part of the other
officers to arrest the party ? I don't recollect.
Was there any inquiry to see who committed it ?
I am unable to say, sir. You saw no effort made
to apprehend him? No, sir. You made none?
No, sir. What is the reason you made none, Mr.
Bond ? Because J didu't deem it my duty; he
was in the hands of the sheriff, and I supposed if
he wanted any thing done he would have ordered
it. You did not make the exertion you say be-
cause you did not think it your duty; I under-
stand you to give that as your reason for not
having attempted to seize the perpetrator of that
act ? I can't be positive, because I didn't know
whether it was my duty or not. You think it
was not? No, sir, I think it was not. You
thought there were others superior to you in
authority, and not having seen the man who
shot, you thought it was not your duty to. exert
yourself to find out who it was ? , Yes, sir. And
you swear that that was your view of your duty?
Yes, sir, that was my view of it. You say just
after this pistol fired, you saw Mauk come up
where the negro was that was shot ? I saw Monk
I suppose some four or five minutes after the
shooting, he was going off with Mr. Nixon.
Which way was he moving;? East, sir. Moving
down Person street? Yes, sir. How far
from the point where the negro was shot ? Near-
ly the width of the market "house. The negro
was lying there and Monk was going off with
Nixon; was he exerting himself to get away ?
Not that I could perceive. Did you notice wheth-
er Monk had any weapon at that time ? I did
not, sir. Now, sir, I will ask you, at the time
you passed through this crowd, early in the diffi-
culty when you carried the prisoner up stairs—I
will ask you who you saw in the market house
that you recognized ? I could not say a single
man, for I paid no attention whatever. I ask you
when you came down to get a drink of water,
and passed through that crowd, and got your
drink of water, and passed back again, who
you saw in that crowd that you recognized ? I
am not able to say, sir, because I was on business
or duty, or whatever you call it, and I didn't stop
an instant. You then came down with Miss Mas-
sey and her mother and went to the carriage; in
passing through the crowd to go to the carriage
do you remember seeing any man whom you re-
cognized before you saw Tom Powers at the
carriage ? Not particularly, sir. Do you remem-
ber seeing any person you recognized ? Probably
I might have recognized them at the time, but I
cannot call them to recollection at this time.
You went back then through that crowd up in to
the market house again ; did you see any one
then that you recognized besides the few you saw
about the carriage—Maultsby, Tom. Powers,
Cashwell, and Taylor,—did you see any one else
as you passed back through the crowd that you
knew ? Probably I might have seen them, but I
don't know that I paid any attention. You pass-
ed through that crowd five times back and forth,
and you cannot swear with absolute certainty as
to any one who was in it? No, sir. You swear
with absolute certainty that Mr. Tolar did not go
to the carriage? I do, sir. Well, sir, is this all
you know about it ? As far as my knowledge
leads me, sir, it is. You are still a constable are
you not? Tes, sir. Where do jtou receive your
appointment ? From the municipal authorities
of the town; a mayor and seven commissioners.
They appoint the town constable? They do.
And you hold your office under their appoint-
ment? Yes, sir. Are you familiar with the city
ordinances ? Not particularly, I suppose I am
familiar with a good many of them. Don't you
know it is against the laws of the city for a pistol
to be fired in the public street ? It is, sir, if you
can find it out; it is very often done and you can't
find out any thing about it. Is it not one of your
duties as town constable to arrest a person who
violates a city ordinance ? It is if I can find them
out. Now, 1 understand you to give as a reason
for not arresting this fellow that you didn't think
CONVENED AT RALEIGH, NORTH CAROLINA.
283
it was your duty—because you thought it was the
sheriff's duty more tliau yours; did the sheriff
have any thing to do in regard to the violation of
the town ordinances ? It is his duty, if he knows
any thiug of it, to report it to me. If you are
present and a town ordinance is violated do you
consider it your duty or the sheriff's to arrest the
party ? I consider it my duty; if I had seen the
party I should have to arrest him. Did you see
any man at any time that day, while you were
about the market house, with any weapon in his
hand. I disremember, I can't be positive. Have
you any decided impression ? My impression is
that I saw Monk with a knife. That is the only
one you have any impression about ? As far as I
can recollect.. I understood you to say that you
at no time that day heard the sheriff' exhort the
crowd to keep back, or tell his officers to use
their clubs ? I did not, sir, there was a consider-
able crowd between him and me at the time. He
was then six feet from you; did you hear any
such expression as "shoot him," "shoot him,"
•'kill him," "kill him?" I did not, sir. You
heard no shout in the crowd that day at all ? No,
sir.
Re-direct examination by the Counsel for the
accused:
Mr. Bond, is your recollection distinct upon
this point, or do you only have an impression,
that the boy who drove the carriage was sitting
in the carriage when you carried the ladies to it?
I am not positive about that whether he was
standiug at the horses head, or sitting in the car-
riage. . You are not positive where lie was ? He
was close by, but whether he was at the horse or
in the carriage, I cannot say. Have you a dis-
tinct recollection whether you ordered him to get
into the carriage or drive off, or whether you did
not? I ordered him to drive off. I want to
know whether your recollection is distinct or not
to tell the boy—wherever he was to get into the
carriage and drive off? I don't recollect telling
him to get into the carriage. Have you a distinct
recollection one way or the other whether you told
him to get into the carrigc and drive off or wheth-
er you did not ? I am not positive.
Questions by the Commission:
Had you any reason, or do you know whether
the sheriff had any reason to expect an attempt
on the prisoner that day ? I do not sir. You
had heard of nothing of "the kind ? No, 6ir. Is it
customary to have so many officers as were on
duty at that time with that prisoner, to aecompa-
ny prisoners from the guard house to the market
house ? I don't know as it is upon all occasions.
Do you know any case in which there were so
many as there were on that day ? I have never
seen any case in which were so many, since I have
been in office. Do you know any case ? I am not
able to say, sir.
JameS W. Brown, a witness for the defence,
having been first duly sworn testified as follows:
Examined by the Counsel for the accused.
What is your name ? James W. Brown. Where
do you reside ? Fayetteville. How long have
you lived there ? Twelve or fifteen years, I be-
lieve sir. What has been your occupation for the
last twelve months ? I came there first driving a
mail stage and I have been there ever since.
What was your occupation in February last at
the time Archy Beebee was killed? I was one of the
police. Were you or were you not one of the po-
lice that went with him to the market house ?
Yes, sir. From what point did you go with him
to the market house? I went first to the guard
house and then to the market house. You were
one of those that carried him up to the market
house? Yes, sir. Did you go into the market
house, were you upstairs? Yes, sir. Did you
go down at all after you went into the market
house? No, sir. You remained np there until
after the trial ? Yes, sir. Was there a crowd
about the market house at the time you went np
there ? There was not very many. Where was
the crowd then generally ? Some of them in the
market house, standing around about there. Did
you notice any thing particularly in the crowd at
that time? No, sir. Did you go down in the
immediate vicinity of the prisoner when you
came down the steps ? I went down right be-
hind him. Who else was with him ? The Sheriff
was with him, and I forget who else, I think there
was another one and Mr. Faircloth I believe met
him on the stairs. Was Mr. Wemyss with him ?
I believe it was Mr. Wemyss. You went down
in the rear ? Yes, sir. How far in the rear of the
prisoner were you ? I was as nigh as this man
here (three or four feet.) Did you remain behind
him until after he had got out ot the market
house? Yes, sir. About the same distance?
Yes, sir. Did you notice any peculiarity in the
crowd as you first reached the landing ? Not
when I first got down I didn't. WTben did you
first notice any disturbance in the crowd ? Well
when, we were turning the market house. Yoia
mean as you went to turn out of the market
house, or as the prisoner did? All of us. Yoa
didn't notice anything unusual, np to that time
at all? No, sir. No excitement or any thing of
that character? No,, sir. Which way did you
turn as you came out upon the pavement? We
turned to the right. That would put your face
in which direction ? It would be pretty much
west I believe. You don't know much about the
points of the compass do you? No, sir, I don't
To your right though ? Yes, sir. Tell the Court,
what yon observed then Mr. Brown? Well, sir,
there was a considerable rush on to us. And you
were in the same position relatively to the priso-
ner, about three feet or four feet behind him ?
Yes, sir. Go on and tell the Court every thing
you observed ? Then, it was not but a very few
moments after that rush on us before I heard
that pistol fired. Did you see the pistol? No,
sir. Where were you at the moment the pistol
fired? I was right up nearly pretty close to the
negro, there was Mr. Wemyss and the Sheriff be-
tween me and the negro. You were next to the
Sheriff, you say ? Yes sir. Were you to the right
and rear of the Sheriff or to the left and rear?
Right behind him. Were you nearer to the wall
of the market house than the sheriff? Me and
the sheriff were about alike I believe. How far
were you from the wall of the market house, at
the moment the pistol fired? I was nearly right
agin it. Could you have touched it with your el-
how? Yes, sir. No body could have stood be-
tween you and the market house, at that time ?
No, sir. Where were you, Mr. Brown, with ref-
erence to that little arch on the right hand side
of the big arch, as you come out ? As we come
down, we turned right around to go towards the
guard house. Had you passed the little arch ?
Yes, sir. And about elbow reach of the market
house on your right ? Yes, sir. At the time
the pistol fired ? Yes, .sir. You didn't see who
fired the pistol? No, sir, I didn't. Had you
seen any weapon ? Yes, sir, I saw several knives.
Do you know who had the knives ? I could not.
tell to save my life. What was the position of
the knives ? They had them in their hands com-
ing right at ns, 1 tried to push some of them off,
but I couldn't. You could not tell who they
were ? I could not to save my life, tell who
they were. Did the pistol firing alarm you ? It
did. You didn't see who did it? No,' sir.
Where was it with reference to you ? It was sort
pf to my left, sort of behind me. How far off
2$4 -
PROCEEDINGS OP A MILITARY COMMISSION,
from you was it ? I could not tell, sir. Was it
oft', or on the pavement, do you think V I don't
know, sir, I could not say exactly about it. How
wide is the pavement at that place ? It is some
6ix feet, I reckon. You have no best recollection
as to whether the man who fired the pistol, was
on or off the pavemeut V No, sir. Did you see
any pistol at all ? No, sir. You hadn't seen a
pistol until that time ? No, sir. Didyouseeany
afterwards? No, sir. What became of you at-
ter the tiring of the pistol ? As soon as they
fired the pistol I turned right back. Immediate-
,ly on the tiring of the pistol? Yes, sir. Which
way did you go ! I went right back in the mar-
ket house. The same direction you had come?
Yes, sir. Did you go quickly ? Yes, sir, I walk-
ed right straight back as quick as I could. When
you got back under the arch, did you recognize
anybody there? I recognized Mr. Tolar. Where
was he standing? He was standing right under
the edge of the market. On which side of the
main eastern arch? It|looked to me like he was
in the middle of the market under the edge of
the market. Was it on the outside or inside?
On the inside, I think. What was his position,
was he standing still or moving at that time? He
was stauding, I think his face was towards the
stair steps, the way we came down. Now, as you
come out of the middle arch, would he be on the
left or right ? On the left. Did you see any
thing peculiar about him ? No, sir. Any weapons
in his hand? No, sir. Any weapons about him
that you saw?. No, sir. Are you well acquaint-
ed with Mr. Tolar? 'No, sir, not in particular.
You know him when you see him? Yes, sir.
How long have you known hiin ? I don't know,
sir. Are you pretty intimate with Mr. Tolar? No,
sir ? Did you see Tom Powers there that day ?
I could not say, I don't think I did. Did yon
see Monk? Yes, sir. Where was he? I saw
him a little before this thing happened, I didn't
see him at the time. Where was he when you
saw him ? I think he was under the market
house. Had you seen Tolar before that time?
No, sir. Cau't you tell, Mr. Brown, how long it
was between the time the pistol tired until you
went back to the arch? I could not, sir, to save
my life. Any more than a minute or two, could
you have counted fifty ?! No, sir. Could you
have counted twenty live? I reckon so. "You
don't think you could have counted titty ? I
don't know, it was a very few minutes.
Cross examination by the Counsel for the pros-
cent ion :
Mr. Brown, how many people were at the mar-
ket house, just after that pistol fired ? I could
not tell to save my life. Was it a big crowd ? I
reckon there must have been a hundred or two.
You were light in the midst ol it near the priso#
er? Pretty uigh. When you went back as soon
as tnc pistol tired, you had to go through the
crowd to get back? Yes, sir, most of the crowd
was east of the prisoner; they were rather to my
left. You had to make your way through a part
of the crowd ? Yes, sir. At the point where you
saw Tolar—was that outside of the crowd, or did
ihe crowd reach as far as it? I think he was out
of the crowd altogether. Was he standing en-
tirely by himself? Pretty much. Who else did
you see at that time ? I could not tell to save
my life—there were several, I don't believe there
was anybody under the market house. Didn't
you see Mr. Cashwell under there? No, sir, I
didn't. And the only person that you saw was
Tolar when you got back under the market,
house,—wa3 he standing completely by himself?
Yes, sir, he was standing there under the market
house. No body else near him ? There were a
good many pretty close to liiin. How close—as
close as I am to you ? I reckon so, (about eight
feet.) Do you know E. P. Powers? Yes, sir.
Did you see him there? No, sir. Do you know
Balph Lutterloh? Yes, sir. Didn't you see him
there? I did not sir. Did you see J. G. Leggett
there ? I think I saw him. Where was he ? I
can't tell. Didn't lie stand close to Tolar? I
could not tell to save my life. You think you
saw Leggett, as you made your way back to the
arch after the firing? I don't know whether I
saw him, after the thing was done or before.
How came you to remember Tolar? He was
standing up there as I went on by. There were
others standing pretty close too about there, why
didn't you notice them ? I did notice them, I
could not tell who they were. You didn't know
them? No, sir, I don't know who they were.
But you remember with accuracy, that Captain
Tolar was standing there at that time ? I do
Was he right under the arch, or right at the arcli?
A little more inside than out. Did he have a
shawl on? Yes, sir. Do you remember what
sort of a hat he had on? I do not. Did he have
on spectacles? I don't know sir. He was stand-
ing perfectly still, looking up stairs ? I don't
know whether he was looking up stairs or not,
he had his face that way, You didn't notice
whether lie had on spectacles ?' I did not. The
pistol had just fired and just as soon as you could
make your way hack you found him looking in a
different direction than where the negro was shot ?
Yes, sir. And that was immediately alter the
pistol was fired? Yes, sir. You don't think
there was an}7 body inside of the market house?
Not to my recollection—there was some nigger
women. When you went back into the market
house, were you very bady seared ? It frightened
me a little. Didn't it frighten you excessively ?
Yes, sir, it did. Did you run when you went
back through the crowd ?, No, sir. Could you
run? I don't know that I could, I didn't try to
run. You got hack pretty swiltly? Yes sir.
I uuderstood you to say you were pretty thorough-
]y alarmed ? Sort, of frightened. I want to know
vthe degree of your fright—were you very much
frightened? I was not scared to death. But.
were you well scared ? It frightened me a little.
What was your reason for turning back ? I
didn't want to see. You, an officer, turned back,,
to get out o£ the row? Yes, sir, after the negro
was killed. After you saw Tolar standing there
where did you go ? I went towards the market
house, and then come right back. Did you come
right hack in the crowd? No, sir. Didyoucome
through the market house? I went under the
market house. Didn't you go away? No,
sir. How long did you remain there? I
went back to the negro after the doctor came.
You went back hastily, saw Tolar underneath
the market house and when the doctor came.
you went back where the negro was? Yes,
sir. How long from the time you went
away from the negro until you went back ? I
don't know exactly how long, it was a good little
while. Who told you to go down to the guard
house and assist in bringing np that negro that
day? The captain of the guard. Who is that?
Mr. Faircloth. What time did he give these ord-
ers? I could not say, sir, to save my life. Was-
it the same day that you brought the negro up?
They put him in over night. Did you assist in ■
catching him ? No, sir. Were you at the guard
house when he was put in ? Yes, sir. Did you
receive your orders then or the next day ? The
next day. What time of the day, before dinner
or after ? 11 was after dinner. Just before you
went there then ? Yes, sir.- Did any body else
receive orders at the same time you did ? I think
there were two or three of us, I think Mr. Horn-.
CONVENED AT IiALEXGU, NORTH CAROLINA. 285
rinde and McGuire. And Faircloth was the man
under whose orders you, McGuire and Hornrinde
acted? Yes, sir. Who went with you at the
time you took the negro up to undergo his ex-
animation ? Myself and Faircloth, and George
Hornrinde, and McGuire. Any one else? No,
sir. Wasn't Bond there? I believe he was.'
Wasn't Weinyss there? Yes, sir. You ought to
speak more particularly ? Wemyss aint one of
our men. Was Sheriff Ilardie there? Yes, sir.
Was he down at the guard house when you
brought him out? No, sir. Were Bond and
Wemyss at the guard house when you brought
the negro out? I don't think they were. Where
did you come up with them ? At the market
house, I think. Where did you see Hardie first ?
I think the first place I saw the sheriff was up
stairs, I would not be certain. You went up
stairs, did you ? Yes, sir. Were you in the justice's
room while the examination was going on?
Yes, sir. Do you remember when Miss Massey
and Mrs. Massey went down stairs that Mr. Bond
went with them ? Yes, sir. Had any body else
come down stairs before Mr. Bond ? No, sir, not
that I know of. Did ycu see any body come down
while Bond was down stairs ? No, sir. Do you
remember whether Bond came back after going
with the ladies ? I think he did, sir. Do you
remember any body leaving the room during that
time? No, sir. Did any body else leave the
room ? Not to my recollection. Bond and the
ladies were the first persons that went down after
the examination was completed ? Yes, sir. Who
guarded the door to prevent the crowd from going
up ? Mr. Faircloth. When Mr. Bond came back
you all went down with the prisoner? Yes, sir.
In going out of the door at the first landing who
went out first of the guard that was along with
the prisoner ? 11hinkMr. Wemyss and Faircloth
to my recollection, I was behind them. You
didn't go out in front of the prisoner? No, sir.
Do you remember whether Sheriff Hardie came out
behind or in front? 1 think the sheriff had hold
of him. As he went out of the door? Yes, sir.
And that he passed down stairs, alongside of him?
Yes, sir, all the way. You were behind? Yes,
sir. Who else was along with you covering the
rear? Nobody that I know of. Wasn't Bond
there? If he was, I didn't see him. Your say
Wemyss and Faircloth and the sheriff were with
the negro and yourself, and Wemyss had hold of
him? Yes, sir. Which side was Wemyss on?
On the left. On which side do you think Fair-
cloth was? I think he was sort of before me, I
would not be certain. Your best impression of it,
is that Wemyss was on the left and that Hardie
had hold of him on the other side ; and Faircloth
was behind, and you came down behind, and you
don't remember where Bond was ? No, sir, I
don't. While you were coming down stairs, did
you see anybody do anything with the prisoner ?
No, sir. Did you see the crowd gather up to look
at him? Not until he got down stairs. You
didn't notice any man in the crowd whatever un-
til you got down stairs, and passed out of the
arch? No, sir. Were you alarmed then, sir? No,
sir. You were not alarmed until the pistol fired ?
No, sir. Just as the prisoner and the whole gi oup
were turning the arch I understand you to say there
was a rush made by the crowd ? Yes, sir. Which
way did the crowd rush from ? It looked like it
was coming all around. You were a part of the
guard? Yes, sir. Did you have any weapon ?
No, 6ir. Did you have a club? No, sir. Did
any of the guard have clubs ? I don't think any
one had, only Wemyss. Now when this pres-
sure was made, did you make any effort to keep the
crowd off from the prisoner. Yes, sir. Did you
have to exert yourself pretty sharply ? We did
that. Could you keep them back ? No. sir.
The pressure was so great that you, a part of the
guard, had to give way ? Yes, sir. Did you re-
sist it? Yes, sir. And yet you had to give way?
Yes, sir. Did you notice how the other part of
the guard were engaged whether they were as-
sisting you or not? I did not. You had as much
as you could do to 'tend to yourself? Yes, sir,
I ,did. Did you get any further than the
arch ? We got further than the arch. How did
you get there; was the crowd pressing all that
time? Yes, sir. And you exerted yourself all
that time, to keep them off of Beebee ? Yes, sir.
Did you see Wemyss use his club? No, sir.
Y our attention was absorbed by what you had to
do yourself? Yes, sir. Were you actively exer-
ting yourself all that time to keep the crowd off?
We did. You were, yourself? I did. During
that time between the time that you came out of
the arch and the time you got past the little arch
I understand you to say you saw several knives ?
Y"es, sir. How many do you think? I saw somo
three or four I think. Were they striking at. the
prisoner ? They were not in reach of the priso-
ner. What were they doing with them ? They
were trying to cut him. Were those the only
weapons you saw there ? All I saw. Do you
know Tom Powers ? Yes, sir. Did you see him
there that day ? I don't recollect. Try to recol-
lect? I don't recollect. Don't you remember
his saying "I demand the prisoner?" No, sir.
Or 44 Danin him, give him to me ?" No, sir. Did
you hear Sheriff Hardie say "use your clubs
men ?" I heard him tell the men to stand back.
Was that just after you got outside of the arch ?
No, sir, I think, it was about the time the negro
was shot. I understand yon to say sir, that you
had passed the little arch, before the negro was
shot? Yes, sir, And you were standing about
where your right elbow would touch the wall,
and that Sheriff Hardie was next to you ? Yes,
sir. Was he pretty nearly in front of you or be
hind ? He was in front of me. Was he right in
front of you? Yes, sir. Was he close against
the wall? About. The Sheriff was on the right
hand of Archy then? Yes, sir. Between him
and the wall? Yes, sir. Where was Wemyss?
He was on the left. And you were immediately
behind the Sheriff? Yes, sir. Did you have hold
of the prisoner ? No, sir. Did the Sheriff have
hold of him? Yes, sir. Which hand? 1 don't
know sir which one, I think it was the left hand
though. Do you remember the prisoner falling ?
I remember his stumbling. Did he go down ?
Not quite sir. Do you remember seeing any
body jump out of that little arch, as you passed
by or just before you passed by ? No, sir. Did
you pass it? I was close up by the little arch.
You saw no such thing as that? No, sir. And
you say the sheriff was on the right hand of Bee-
bee, and Wemyss was on the left ? Yes, sir. The
Sheriff was standing between Beebee and the
market house, pretty much, and you were right
behind him ? Yes, sir. And you could touch
the wall of the market house with your elbow ?
Yes, sir. And that was at the very time that Bee-
bee was shot? Pretty much sir. As soon as you
heard that pistol shot you made your way back
and saw Tolar as you described ? Yes, sir. Now
sir, during the whole time, you were in that
crowd from the time you came down stairs to the
time the negro was shot, who else did yon see
that you knew besides Toler ? I be dogged if I
could tell. Y"ou must be more careful of the ex-
pressions you use—you say you can't tell ? No,
sir. And you say you distinctly recognized To-
lar, and that was the only face you recognized
that day? Yes, sir. That is the only man .you
recollect-to have seen in that whole crowd, that
286
PROCEEDINGS OP A MILITARY COMMISSION,
you can remember this moment ? I recollect a
iieap. Just let us have them ? I can't tell to save
my life. Could you tell some of them,
that you saw in that crowd ? I saw a good many.
Just tell me some of them ? I forget who they
were. Did you see E. P. Powers ? "No, sir. At
any time that day? No, sir. Did you see
Tom Powers in that crowd at any time that
day ? No, sir. You think you did see Leggett?
1 think I saw him. Did you see Ralph Lutterloh?
No, sir. Did you see Saml. Hall ? No, sir. Did
you see Henry Sykes, the one-armed man? No,
sir. Did you see Sam Phillips? Yes, sir. I
thought so. I saw him before this thing happen-
ed. Did you sec him afterwards? I don't rec-
ollect. Did you see James Kendrick? No, sir.
Did you see James Atkinson ? Yes, sir. Where
was he ? I think he was about close to the mar-
kct there. You were up stairs until Archie came
down ? Yes, sir. And it must have been after
you came down stairs that you saw hjm ? I saw
him before I went up there. Did you see James
Atkinson after you came down ? I don't think I
did. Did you see David Oliphant there that day?
I delieve I did. Where was that ? I think it was
before I went up stairs. Did you see anybody af-
ter you came down stairs ? I reckon I saw them,
I don't recollect them, I saw a good many peo-
pie, but to tell you all, I could not to save my
life. I want jou to tell me one you saw, alter you
came down besides Capt. Tolar? I don't know,
sir, who they were, I could not pretend to say.
Did you see Sam Phillips after you came down ?
I don't recollect. Do you know John Armstrong,
the negro ? Yes, sir. Did you see him ? Not
that I recollect. Did you see Bob Simmons ? I
saw him before we went up stairs. Did you see
liim after you came down ? Not that I recollect
of. I understand you to say you recollect dis-
tinctly seeing Tolar, after you came down and
after the firing, but from the time you got down
stairs until after the firing took place you can't
recollect a single other soul that you did see—is
that so or not ? I could not reco.lect them. I
want a direct answer to that question—can you
name a single other individual that you saw after
you came down stairs, until after the pistol fired?
"No, sir. Not even though I name over numerous
persons whom you know, and who were there,
you can't recollect whether they were there or
not? Notafter we came down stairs. You think
now, even if I were to call the names of persons
that you saw, you could not recollect wheth-
cr you saw them after you came down stairs ?
I don't believe I did. But you do recollect Capt.
Tolar there? Yes, sir, I saw him I am pretty
sure. What is your position there—one of the
town guard ? Yes, sir. Did you attempt to ar-
rest the man who fired the pistol ? I didn't see
the man. He was pretty close to you, wasn't he ?
He was pretty close to me, I thought. You ran
away instead of going towards him ? No, sir.
But you got away ? Yes, sir. It never entered
your head to arrest the man for a breach of the
town ordinance, firing a pistol in the street? Not
at that time. Did you see anybody else make an
effort to arrest him? No, sir. Did you hear
anybody in the crowd just after the firing of the
pistol, say who shot him? I never did. Was
the crowd perfectly still? Yes, sir. After the
pistol fired it was very still, wasn't it? Not
very—it was sort of still. Then it commenced
humming again, did it ? No, sir, I believe not.
Do you mean to say that a man fired a pistol
there in the presence of one hundred and filty or
two hundred people, and there was 110 inquiry as
to who did it ? I never heard a word of it. And
you say just after the pistol was fired the crowd
was still, but not unusually still ? No, sir. I
ask you then, wasn't tbe crowd unusually quiet
from the time you first saw it ifntil the man was
shot ? Yes, sir. It was more quiet than a crowd
usually is? Not more than usual. I understand
you to say it was unusually quiet? Not more
than common. You say it was not unusually
boisterous or noisy? No, sir. Wasn't it unusm
ally quiet ? It was very quiet, I never saw any
thing wrong about it. It was just about like an
ordinary crowd, that was at the' market house?
Yes, sir. You saw 110 burst of excitement there?
No, sir. Ton saw no men with their lips fixed,
or their eyes flashing, or any pallor on their
cheeks? No, sir. No appearance of excitement
then ? No, sir.
Re-direct examination by the Counsel for the
accused:
Mr. Brown, how many policemen had clubs?
No one had clubs. Did anybody have a club?
Mr. Wemyss had a club. You say you were com-
ing along by that little arch, as you turned out of
the main arch in the direction of the guard house,
the crowd was pressing on towards you and you
didn't notice what the others did? No, 6ir.
Were any of these knives in reach of you that
you talk about? Yes, sir, two or tbree they
could have reached me, that sort of alarmed me,
it made me feel sort ot bad, I tell you. And the
firing of the pistol, made you feel more? Yes,
sir. And you got away as rapidly as you could?
Yes, sir, I returned right off? You heard noth*
ing said as to who did it? No, sir, 1 did not.
How long have you been a policeman,Mr. Brown?
About five years during tbe war and since.
Questions by the Commission:
You said that you turned to go towards the
market house because you didn't want to see;
what was it you didn't want to see? I didn't
want to see the negro shot.1 Then you knew it
was going to take "place and you turned in order
not to see? No, sir, I didn't know it was going
to take place, I turned after the shooting. I don't
think it is quite clear to the court then why you
turned? I don't know myself hardly. You say
it was because you didn't want to see, what was
it you didn't want to see ? I turned as soon as
the negro was shot down, I saw him fall and I
walked right back to the market house. Was he
lying on the ground before you turned away?
Some of the rest of the guard took hold of him at
the time, I don't know whether he had got clear
down on the ground or not.
On motion the Commission adjourned to meet
on Thursday, Sept. 5th, at 11 o'clock, A. M.
Raleigh, N. C., Sept. 6th, 1S67,10 A. M.
The Commission met pursuant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and
approved.
Samuel D. Carrow, a witness for the defence,
having been first duly sworn, testified as follows:
Examined by the Counsel for the accused.
What is your name? Samuel D. Carrow.
Where do you reside ? I reside in Beaufort coun-
ty. How long have you resided in the county of
Beaufort ? Forty odd years. Have you ever held
any official position in the county ? I have, sir.
What, sir? I am colonel of militia; I have been
magistrate; I have been trustee ofi'the county,
and chairman of the board of wardens, and 1 am
now sheriff of the county. How long have you
been sheriff of the county ? Since 1865. What
CONVENED AT RALEIGH, NORTH CAROLINA.
287
is your business at present in the city of Raleigh ?
To 6ee the public treasurer on some business
connected with the State, and to attend this
convention, sir. You have not been subpoenaed
as a witness in this cause? I have not, sir, I had
not heard there was a trial going on. You are
not acquainted with any of the parties ? No, sir.
Are you acquainted with Jordan G. Leggett? 1
have been, sir; he was born and raised in my
county. How long have you known Jordan G.
Leggett ? Ever since he was a boy until six or
seven years ago; since then 1 have seen him. But
you had not that intimate knowledge of him that
you had before ? No, sir. Are you acquainted
with the general character for truth of Jordan G.
Leggett ? T was up to the time he left Beaufort
county. Are you acquainted with his general
character for truth do you think ? It was very
good, I never heard it complained of; I never
heard his veracity questioned; he done business
in my town, and he was a very respectable farmer,
raised in the county.
Cross examination by the Counsel for the pros-
ecution:
How old was Mr. Leggett about the time he
left your part of the country ? About thirty-five.
He is forty now ? Yes, sir.
Henry Sykes, a witness for the defence, having
been first duly sworn, testified as follows:
Examined by the Counsel for the accused.
What is your name ? Henry E. Sykes. Where
do you reside ? In Fayetteville. ^Vpere did you
come from this morning to this hall ? I came
from the Raleigh prison. What were you doing
in the Raleigh prison ? I was put there by the
order of General Sickles. With what are you
charged? I know not, sir. How long have you
been confined in the prison at Raleigh ? Nearly
seven weeks.
The Counsel for the prosecution:
Do you think this pertinent to this issue ?
The Counsel for the accused:
I am not examining on this as matter pertin-
ent to this issue, but for the purpose of removing
any prejudice that may exist from the fact that he
is a prisoner.
Examination resumed:
Were you in Fayetteville the day Archy Beebee
was killed? I was. Were you at the market
house on that day ? I was. At what time did
you go to the market house ? Between two and
three o'clock, Three o'clock in the afternoon ?
Yes, sir. Was Archy Beebee up stairs ? No, sir,
they carried him up afterwards. Were you there
when he was carried up stairs ? I was. At what
point in the market house were you when he
went up stairs ? I was under the eastern arch,
the large eastern arch. Did you remain there
until he was brought down stairs ? Until the la-
dies came down stairs. In the same position ?
Not exactly, I walked back and forwards under
the centre of the market house. Who do you
mean by the ladies ? Mrs. Massey and her daugh-
ter. Did you see them when they came down
stairs? Yes, sir. Who was with them? Mr.
Bond was with them. Where did they go ? They
went to the carriage. Where was the carriage?
It was about thirty feet from the main eastern
arch of the market house. On the pavement or
off the pavement ? Off the pavement. Did you
see them when they were helped in to the ear-
riage by Mr. Bond ? I did. Where were you
then ? At the end of the pillar of the main eas-
tern arch. Did you remain there until the car-
riage drove off? Yes, sir. Were you looking at
the carriage during the whole time it was there
after theygotin ? The principle part of the time,
sir. Who did you see go to the carriage ? I saw
Tom Powers go to the carriage; I saw Mr. Bond,
and Mr. Taylor, and Mr. Maultsby go to the car-
riage. Did you see anybody else? Not that I
recollect, sir. Did you'see Mr. Cashwell ? No,
sir, I did not, Did you see Robert Mitchell ? No,
sir, I did not. Did you see Thomas H. Massey ?
No, sir, I never saw him go there. Did Capt.
Tolar go to the carriage? Not that I saw. Did
you see Capt. Tolar about there at all up to that
time ? I saw him just before around at his usual
stall, under the western corner of the market
house. Did you see him at all at the time the
carriage was stauding out there with the ladies
in it? No, sir, I did not. You were looking at
the carriage, and you saw nothing of Capt. Tolar?
No, sir. You didn't see him about there at that
time? No, sir, I did not. You saw the car-
riage when it moved off? Yes, sir. How long
was it after the carriage moved off' before Beebee
the prisoner was carried down stairs ? About five
minutes, sir. What was your position from
the time the carriage moved off, until Beebee
was brought down stairs ? I was standing in
front of the small eastern arch. Were you stan-
ding on the pavement or off the pavement ? On
the pavement. Were you nearer the wall of the
market house or nearer the edge of the pave-
ment ? I was nearer the market house. How far
were you from the wall of the market house ? I
was leaning against the bevel. Which closes the
lower portion of the small arch? Yes, sir. Were
you opposite the center of that arch, or nearer to
the northern or southern portion ? I think I was
nearer to the southern portion of it sir. From
your position did you have a view of the stair
steps which lead into the hall above? I did. Did
you see the prisoner Beebee when he first appear-
ed upon the landing of the stairs ? I did. From
your position could yon see the crowd which was
under the market house, or the people who were
under the market house ? I could see a portion
of them sir. Could you see those who were out
of the market house on the eastern side ? I was
standing with my back to them. How manyper-
sons do you estimate as having seen at it at that
time under the market house ? I suppose some
twenty five or thirty. VvTho did you see witli
Beebee as he first appeared upon the landing of
the stairs ? I saw Mr. Wemyss first and Mr.
Bond. Which side was Wemyss on ? On the
right side of the prisoner sir. Did he have hold
of him in any way ? He had a string tied around
his thumb, he had that in his left hand. You saw
Mr. Bond? Yes, sir. Where was Mr. Bond?
He came down in front. Who else did you see
along with him ? I saw Mr. Faircloth. Where
was Faircloth ? He was to his left hand. Did he
have hold of him ? He had hold of him on his
left. Who else did you see along with him ? I
saw Sheriff Hardie. Where was Mr. Hardie, I am
speaking now of the time when Beebee first made
his appearance upon the landing of the stairs. I
disremember whether he came in front of him or
in the rear. You remember to have seen him ?
Yes, sir. What occurred if any thing between the
time of Beebee first appearing upon the landing
of the stairs and his reaching the floor of the mar-
ket house at the foot of the stairs? Nothing at
all sir. From your position did you have a view
of that bevel which stands on the left, of what is
called Becky Ben's stall coming down the step6?
Yes, sir. That bevel would then be on your
right ? Yes, sir. Did you see any one jump up
on that bench at the time Beebee appeared ? No
sir I didn't. Did you hear any exclamation from
any person in the crowd at that time ? No, sir.
Do you remember to have heard any such cry as
4 watch out boys,' ' here he comes,'' rally boys,' or
any thing to that effect ? No, such words were
spoken, that I heard. Do you know John Maults
289
PROCEEDINGS OF A MILITARY COMMISSION,
by? 1 know him. Did you see him there that
day up to that time? Yes, sir, I saw him when
he'went to the carriage. Did you see him at the
time Beebee caine down stairs ? No, sir, I did
not. You didn't see him jump upon that bevel
and make any exclamation such as I used ? I did
not. Can you swear whether lie did or did not ?
I can swear that if he did I never heard him. So
that nothing oceured to attract your attention be-
fore the boy got down to the floor of the market ?
No, sir. What was the condidion of the crowd
under the market house at that time was it exei-
ted? No, sir, I saw no excitement. Who did
you see in the crowd at that time that you
recognized and can now name—I mean other
than those who were accompanying the pris-
oner? It seems to me I saw Mr. Massey,
the old gentlemen, and Mr. Mitchell come dowu
stairs, I recollect seeing Mr. Nixon and Mr. Phil-
lips. At that time? Yes, sir. they were under
the market house. Mr. Mitchell and Mr. Massey
followed the party down stairs ? Yes, sir. Are you
certain Mr. Bykes whether they came down be-
fore 01* after the prisoner? I am not confident, it
appears to me I saw them come down afterwards.
You say you saw Nixon, and you saw Phillips?
Yes, sir. What Phillips? Samuel A. Phillips.
Where did you see them ? I saw them go from
under the market house, out of the main eastern
arch. Did you see how far they got out, wheth-
they came out upon the pavement, or whether
they stopped under the market house ? I don't
recollect. But you saw them coming out from
back in the market house towards the main east-
era arch? Yes, sir, as the prisoner was coming
from the landing down to the floor of the market.
What next oceured after the prisoner reached the
floor of the market ? I did not see any thing to
attract my attention uutil I reached the outer
edge of the main eastern arch. From your posi-
tion there on the pavement outside of that south-
ern arch were the prisoner and the party with him
visible to you all the time until they turned out
upon the pavement ? They were not, the pillar
was between me and them. They were hidden
from your view ? Yes, sir. While they were so
hidden from your view behind the pillar, did you
notice or observe any assault, or any disturbance
or violence, made, towards the prisoner? No.
sir, I saw a good many walking up apparently to-
wards the main eastern arch like as though they
were going to look at, him. Walking up from
where ? From out of the street. Did you notice
any movement on the part of those inside under
the market house at that time? No, sir. So that
was the only thing which attracted your attention
•while the prisoner was hidden from your view,
the seeing of a good many walking up from the
out side of the market house ? Yes, sir. Did
you hear any demand made tor the prisoner at
that time ? When they reached the outer part of
the main eastern arch, I did. Was the prisoner
visible to you? Yes, sir. You heard what ? I
heard some person demand him. What did he
say ? "I demand the hoy." Who was that ? I
could not ascertain who it was, they crowded a-
round at that time. Did you know his voice ?
No, sir, I did not. What reply was made to that
if any? The Sheriff said '* he is my prisoner,"
and asked him to stand back. Did you hear
anything else ? I heard a good many of the
police ask the gentlemen to stand back; the
police crowded and shoved everybody out
of the way, as they went toward him. Did
the police use their clubs at that time ? They
did not strike anybody that J saw; they flour-
ished their clubs and asked them to stand
back. What next occurred, Mr. Sykes, to at,-
tract, your attention? As they were talking
to the men and telling them to stand back, they
moved off the pavement, at the eastern side of
the pavement. How far was that from the pillar,
how nearly opposite was it to the pillar of the
main areh'of the market? They moved rather
south in an angle lrom the main eastern arch
nearly opposite the pillar when they got off the
pavement. I moved then on the south side of the
eastern pillar. You say that while you were
standing at that small arch, and after the police
had used their clubs, and flourished them around,
that when the police started with the prisoner a-
cross the pavement,they moved rather to the south
than a straight course diagonally across the pave-
ment ? Yes. sir. And that they got off the pave-
ment with the prisoner? They did. That at
Ahat time, just about the time the police had got
off the pavement with the prisoner, you changed
your position, and got down to the south eastern
corner of the market house? Yes, sir. Were
you just at the corner, or were you upon the
southern side ? I moved on the southern side,
the south-eastern corner. Did you stand up
against the wall ? I leaned against the wall. Just
at the corner? Yes, sir. What did you nextob-
serve ? I next observed them moving down to-
wards the corner of the pavement. Did they go
back on the pavement, or did they continue off
the pavement? They attempted to come on the
pavement, and three of them fell down—We-
myss, Faircloth and the negro. What next ? The
prisoner attempted to rise from there, and as he
rose the Sheriff caught him in the back of the
collar with his right hand, and as the negro was
nearly straight, 1 saw a pistol presented over the
left shoulder of the sheriff near his ear. Now at the
time the sheriff'had his hand in his collar, where
was the sheriff ? He was standing at his rear.
With his hand in the back of the collar? Yes,
sir. Was the prisoner on the pavement or off'the
pavement? I think he was just on the edge of
the pavement. How far was he at that time from
you ? About eight feet. Was he due east from
you? Very nearly. Bringing him very nearly op
posite the south-eastern corner of the market ?
Yes, sir. And near the edge of the pavement ?
Yes, sir. Just as he rose, what occurred? The
pistol fired over the shoulder of the sheriff and he
fell. Did you see the sheriff ? I saw the pistol
when it fired. Where was the man standing who
fired the pistol? Right at the sheriff s back. Was
he on the pavement or off the pavement ? Off the
pavement. How much of the pistol did you see?
I saw the barrel back to the hammer. How far
was the muzzle of the pistol from the deceased
man, Beebee? Not over eighteen or twenty inches.
Pointing to what part ot his head? The back
part of his dead. Which way was the prisoner
Beebee looking at the time? 'Nearly due west.
In the direction ot Hinsdale's corner? Yes, sir
And you saw the pistol point over some man's
shoulder? Over the Sheriff's shoulder. Which
shoulder?- The left shoulder. What sort of pis-
tol was it ? It looked to be a repeating pistol ?
Large or small ? One ot the largest kind of re-
peating pistols. Did you see the flash ? Yes, sir.
Did you see the smoke? Yes, sir, I did. Did
you hear the report ? Yes, sir, I did. Was there
any other pistol fired that day? No, sir. Do you
know who fired that pistol ? I do not. Did you
hear no exclamation in the crowd from any one
about the time thepistol fired ? I heard some voice
ordering some person to give him up, or he would
shoot him. Just at that time ? Just before the
pistol fired. Instantly before? Yes, sir. "Give
him up, or I will shoot him ?" Yes, sir. Whose
voice was that? I took it to be Samuel A. Phil-
lips. Do you know Phillips well ? I do. How
long have you known him? i have been inti-
CONVENED AT RALEIGH, NORTHS CAROLINA.
mately acquainted with him for the last two
years ? Do you know his voice well ?
Yes, sir. And you say you took that voice
to be the voice of Samuel A. Phillips? Yes,
sir. Have you any doubt about that? I have
not, it was his voice to the best of my knowledge.
And immediately afterwards the pistol fired from
the point you have named ? Yes, sir. Did yon
see any thing of Samuel A. Phillips after tbat
time ? I saw him some two or three seconds after,
sir. Where was he then ? He was between three
or four feet to the rear, and to the left of where
the pistol fired. Was he in motion or was he
stationary ? He was in motion. Which way was
he moving? A little back. Was he backing off
with his face turned ? He was backing off with
his face turned in the same direction ? So you
saw him with his face in the same direction two
or three seconds afterwards and backing off ?
Yes, sir. And then he was three or four feet from
where the pistol was fired ? Yes, sir. Did he
have anything in his hand ? He had a pistol in
his right hand. What sort of a pistol was that he
he had in his right hand ? A large repeating pis-
tol. How did its size compare with the pistol
you saw fired upon the negro ? As well as I
could see it was nearly or quite the same sized
pistol. What was he doing with the pistol ? He
had it in his right hand and looked to be rubbing
the barrel against his pants, opened the left breast
of his coat and put the pistol into his pocket.
You saw that? I saw it. Is there any doubt
about your having seen that? Not a bit, sir. Did
you see any thing of Capt. Tolar at that time ? I
did not. Where was the last time you saw Tolar
that day ? He was standing under the market
house at his usual stall. That was the time you
spoke of? Yes, sir, that was the first time and
last time I remember seeing him that day.
Did you see Mr. Powers at that time? No,
sir. 'When bad you seen Tom Powers ? I saw
him during the time the negro was up stairs.
Did you see any thing of Monk at that time ? I
saw him just before the pistol fired. What was
he doing ? He was running around the crowd at
that time trying to get into where the prisoner
was. What did he have ? A small knife in bis
hand. What was he saying ? He wanted to get
to where the man was to cut him with his knife ?
Did he cut him or did he get to him ? No, sir.
What prevented him ? Mr. Wemyss struck hint
across the hand with his club. Did you see him
any more after that time ? I recollect seeing him
alter the prisoner was shot down. Then it was
before the firing that Wemyss struck him with
theclub? Yes, sir. I understood you to say
that none of the policemen struck with their
clubs ? That was during the time when they first
came out on the pavement. You then confine
your remarks.to the time when they first came
out on the pavement ? Yes, sir. Did Monk drop
the knife when he was struck? I don't know
sir. Did you see Sam Hall that day ? I did not.
J. G. Leggett ? I saw him after the prisoner was
shot down, I saw him on the walk between the
market house and Mr. Taylor's corner. What
was he doing ? He was standing looking to be
picking his lingers, and talking to Major Byrun,
I think. Did you see any thing of John Maultsby
except the time you spoke of having seen him at
the rear of the carriage ? No, sir. Ed Powers?
I don't recollect seeing him that day at all. Ralph
Lutterloh? No, sir. You said just now Mr.
Sykes that you have no doubt but tbat voice you
heard just before the pistol fired was the voice of
8amual A- Phillips ? I have no doubt about it.
Was that what you thought then ? Yes, 6ir. Is
it not an after consideration ? No, sir. But at
that time the sound of the voice satisfied you that
it was the voice of Samuel A. Phillips ? Yes, sir.
Is there any thing further that you know about
this matter? Nothing particular that I know.
Mr. Sykes were you alarmed on that occasion ?
No, sir. Not a bit excited? No, sir. Your
nerves were steady ? Yes, sir. Are you aceus-
tomed to sceues of danger ? I have seen a good
" deal of it in my time. The firing of the pistol did
not scare you ? No, sir. liave you ever told
this matter before this time? I told it to Mr.
Haywood and General Avery. You told it to
them substantially as you have told it here to day?
I think I did. Have you ever told it to any body
else ? No, sir, only yourself. When did yon
tell it to me the first time ? I told you day be-
fore yesterday. And before that you have never
told me about it ? No, sir. Had yon ever men-
tioned this matter before your arrest one way or
the other? Never did in my life.
Cross examination by the Counsel for the pros-
ecution.
I understood you to swear just now that you
didn't know upon what charge you are confined ?
No, sir, I have never heard of any charge at all.
You say you reached the market house on the day
Archy Beebee was killed, about two or three o'-
clock? Yes, sir. When was the time that you
first heard of the attempt to ravish Miss Massev ?
About ten o'clock in the morning, first.
Who told you? I think Jonathan Hollings-
worth told me sir. Where was that? In my
store I think. How far is your store
from the market house? About a hundred
yards at that time. What street is it on?
Person street, on the right hand as you go from
the market house ? Did you hear it from any
other quarters ? I heard a good many talking
about it, I disremember who they were. Did
you hear them talking at your store, or about
the street ? About the street. Who did you hear
speak of it? I disremember. Did you hear Torn
Powers ? I never saw him until I went to the
market house. Captain Tolar? I never saw
Capt. Tolar that day, to my knowledge. Monk ?
No, sir, I never saw him until I saw' him at the
market house. E. P. Powers? No, sir, I never
saw him that day that I can recollect. Ralph
Lutterloh? No, sir. Sam Hall? I never saw
him that day that I recollect. Sam Phillips ? I
heard Sam Phillips speak of it that morning.
Now between that and the time you went to fho
market house, in the evening, I understand you
heard it from a great many quarters ? Yes. sir.
Where was Sam Phillips when you heard it from
him? He was up to the market house that
morning, about ten o'clock. Was Sam Phillips
the first person you heard speak of it ? No, sir,
Jonathan Hollingsworth was the first? You
think Sam Phillips spoke of it after that? Yes,
sir. That was at the market house? Yes, sir,
while we were attending the market. Did you
go to the market house before breakfast or after?
Market hours are between nine and ten, and
sometimes as late as eleven. How long did yoq
remain at the market house ? I don't recollect,
sometimes I stay longer and sometimes not so
long. I want to know how late you stayed there
that day ? I suppose I stayed there until after
ten. Did you return to your store from the mar-
ket house ? Yes, sir. Did you stay there until
three o'clock? I went to my meals, victuals at
noon, and then returned to the store and stayed
there until three o'clock. You met some of these
fentlemen who are on trial, and none of the men
have mentioned, only Mr. Leggett. No, sir.
I ask you, if during that time, from anything you
saw or heard and that came to your knowledge,
you had any reason to apprehend or to believe
that an attack was to be made on Archy Beebee
290
"proceedings op a military commission,
that day? I never heard or thought of such a
'thing. Ton went there about three o'clock?
Yes, sir. You went under the last arch, as I un-
'derstand you? Yes, sir. Archy was upstairs
then? No, sir, he was not. That was before
Archy got there ? Yes, sir. You saw him brought
and carried up stairs ? Yes, sir. You were stand-
ing in the eastern arch, as he was carried up?
Yes, sir. How far from Archy ? I suppose some
six or seven feet. Did you see fie ladies go up
stairs? Yes, sir. Which went up stairs first,
Archy or the ladies ? The ladies went up first.
Are you c rtaiiuof that? 1 am not positive, but
it is my impression. You have a decided im-
pression they went up first? Yes, sir. Who
went up stairs with Archy ? Mr, Wemvss, Mr.
Faircloth, and Mr. Bond. Had you seen the
eherilf up to that time that day ? Yes, sir, I think
he went up stairs just before Beebee came. How
long was Beebee up stairs before the ladies came
down ? I suppose some hall or perhaps some
three quarters of an hour. You were under the
mirket house all that while? Yes, sir, walking
back and forth under the market house. Were
the stair steps in your sight all that time? No,
sir. At the time the stair steps were in your
right did you see anybody coming down from
the room up stairs before the ladies came—did
you see Israel Bond in the crowd at all during
three quarters of an hour? I don't recollect
"that I did. You saw nobody come down
stairs? No. sir. Were the stair steps within
your view the greater portion of the time? I
don't know whether they were the greater por-
tion of the time or not. When you moved from
the point about six or eight leet from the eastern
arch under the market house where did you go to?
I went to about the center of the market. Who
were you speaking with there ? I don't recollect
any person particular. Did you see Sam Hall
there? I did not. Don't you remember stand-
ing with Sam Hall near the bell rope ? No, sir.
Don't you remember standing there talking to
any one ? No, sir, I do not. The point you went
to was somewhere near the bell rope? I passed
under it several times. Were yon moving back-
wards and forwards all the time? Yes, sir, pretty
much. Is that the only place you went to under
the market house during your walk? Yes, sir,
from the eastern end of Becky Ben's bench up to
the bell rope. Did you walk up and down there
until the ladies came down ? Yes, si-. During
the time you were walking up and down who did
y ou see there in the crowd ? I recollect seeing
Tom Powers and James Nixon and Sam Phillips
and a colored man, I can't recollect his name.
Did you see Capt. Tolar at the time Beebee was
up stairs ? I saw him there at his stall. Which
was iu the south west corner ? Yes, sir. Who
was with him ? I think there was a black man
there with him that, usually butchered about the
stall there. Any one else? Not that I can re-
collect. How otten did you see him between the
time you got there and the time you came away ?
Only one time. What was he doing ? He was
looking towards me at the time, Did he have
his spectacles on that day? Not that I recollect.
Where was Tom Powers? He was sitting on a
bench, 1 thiuk one of Becky Ben's benches, on a
small bench near Becky Ben's stall. Did you see
Captain Tolar have any weapons that day ? No,
sir. Did j om see any belt that he might have a
weapon in ? No, sir. Did you see any weapons
about Tom Powers ? No, sir. Was Powers con-
versing at that time? He was conversing with
Mr. Nixon, I heard him. Did you hear what he
was saying? I heard Mr. Nixon ask him, if he had
any pistol and he said no, he had not; Nixon told
him be ought to have one and be said he ought
not, and he said, why? Tom said he would rather
the law would take its course. You don't know
anything about Powers going off near that time
somewhere outside of the market house ? No,
sir. Did you see David Oliphant at time ? No,
sir. Did you see him in the neighborhood of
Tom Powers at"any time ? I don't recollect that
I did. Your impression is that Tom Powers re-
mained on that bench till the ladies came down?
Yes, sir. Did you heur any other conversation
that day? No, sir, I did not. Did you see any.
thing of Ed Powers or Legget underneath the
market house? I did not. Did you see anything
of Ralph Dntterloh under the market bouse?
No, sir. How close were yon to the arch in
promenading down to the eastern end ? I might
have walked under the arch sometimes. Did yon
pass up and down the middle of the aisle? Yes,
sir. When you were passing up and down the
aisle, didn't you see Tolar and Leggett and Lut-
terloh ? No, sir. Who did you see? I don't
recollect, 1 saw a great many persons, but I never
paid any attention to them. Was there much of
a crowd there? There didn't appear to be any
thing extra. Was there any obstruction to your
walking at all ? Very little. Were the persons
that wcie there scattered,about in crowds? Yes,
sir Now when the ladies came down stairs,
which way was your face turned? When the
door opened at the head of the stairs, I was at
the main eastern arch and I turned around to
look at them. You saw them coming down and
Bond with them ? Yes, sir. Was Miss Massey
veiled ? I disremember, 1 think she was though.
Did she have a handkerchief to her face ? 1 think
she did. Did you see any part of her face ? I
saw the upper part, I do not think her face was
covered. Did you see any mark about her face?
No-t about her face, I saw on her neck the marks
as it looked of some person's fingers. You could
see her neck? Yes, sir. Had she a shawl on?
Yes, sir. Was it fastened by the neck? Yes,
sir. Do you remember whether she had a collar
on ? I do not. Do you remember whether she
had any wrapping about her throat ? No, sir, she
had not. Her throat was bare, so that you could
see distinctly the marks upon her throat ? Yes,
sir. Were they bloody? They looked very red.
Any marks of blood ? No, sir. What sort of a
pistol was yours? A small Colt's repeater. What
sized Colt's pistol ? A six shooter. What was
the size of the ball ? I don't recollect, I never
bought any balls for it in my life. Did you ever
load it? No, sir, it was loaded. • I ask you upon
your oath when you loaded it? I never
loaded it in my life; it was loaded when I
bought it, or rather when I got it pawned
to me; it remained in my hands two or three
months; the pistol does not belong to me. Who
did you get it lrom ? I got it from a person I let
have some money by the name of Mr. Hybert, he
pawned it to me for five dollars, I omy kept it
some two months. How long had you had it at
that day ? Some two or three weeks. Why did
you put it on that morning? I generally carried
it in my pocket all the time. Which pocket? In
my left hand breast pocket. It was in your pock-
et when you dressed that morning? It was in
my overcoat pocket. Did you have on your
overcoat ? Yes, sir. Is that your usual place of
keeping the pistol ? Yes, sir. When you took
off your coat at night, did yon keep your pistol
there ? Yes, sir, it remained in my pocket. Did
you have that pistol on the day before Archy was
killed? Yes, sir. Understand you are upon
your oath. I understand that. Did you have it
on the day before that ? Yes, sir. And the day
before that ? Yes, sir. You always wore it ? Yes,
air, I always carried it in my overcoat pocket. Jt®
CONVENED AT RALEIGH, KORTH CAROLINA.
this tnan Hybert a colored man ? Yes, sir. Was
the pistol capped when you got it? Yes, sir. Did
you never tire it off at all? I never did in my
jiife—I recall that; coming up on the steamboat
from Wilmington on the tirst of May, I fired it.
What sort o 1 a report did it make? A tolerable
loud report for a small pistol. Now, sir, I want
to know the size of that pistol ?% I don't know
exactly. Do you know the army size? I don't
know the calibre. You know the size when you
see it ? Yes, sir. You know the navy size when
you see it ? Yes, sir. You have been in the ar-
my, you are toler: bly familiar with arms? Yes,
6ir. Do you know the next size to the navy
size? I don't recollect what they call them.
Was yours the next size? No, sir. It was
about as large as the second size. Did
you judge of its size from its length or the
size of tne ball? From the size and length-; it
carries a common buck shot. Did you try it?
No, sir, I never tried it in my life. Who lias that
pistol now ? Mr. Hybert has it. Who is Mr.
Hybert? A black man that lives in Fayetteville.
When did you give it to him? About the time
General Sickles qrdered that no man should carry
arms, I asked him to redeem it and he did so. You
saw this lady come down with the marks upon
her neck? Yes, sir. And you were looking at
her? No, sir. Did you wait until she got into
the arch to move out? As she came out from
between the pilliars and the bencb, I moved to
the front of the small eastern arch. She went on
towards the carriage? Yes, sir. You stood with
your back to the arch did you, and your face to-
wards the carriage ? At that time I did, sir. Now
at that time did'you see any thing of Tolar ? No,
sir, I did not. Did you see any thing of Phillips ?
No, sir, I don't recollect seeing any thing of him
at that time. Did you see any thing of Nixon ?
Not that I recollect at that time. Did I under-
stand you to say you went out of the main east-
em arch and went around to the southern arch
and stood with your back directly lookiug at the
carriage ? Yes, sir. Did you look at that carriage
in the same position until the carrirge drove
away ? I don't recollect that I did. Was your
face towards the carriage until it drove off? I
imagine it was. I don't want you to imagine?
My impression is that it was. And you say you
saw Bond go to the carriage ? Yes, sir. And
Tom Powers, Maultsby, and Phil. Taylor? Yes,
sir. Did you see Maultsby go to the carriage. I
saw him go near to it. How near? I thought
about eight or ten feet in the rear of it. Now,
where did he come when he went to the carriage ?
From under the market bouse. That was the
tirst time you saw him that day ? Yes, sir. Did
you see Jonathan Hollingsworth that day ? No,
sir, not at the market. When you saw Jonathan
Hollingsworth in the morning did he have a pis-
tol? I think he had on a belt but I don't recol-
lect seeing a pistol. You didn't see him at the
market house ? No, sir, he was standing guard-
ing the bridge. You saw Maultsby go within
nine or ten feet of the rear of the carriage ? Yes,
sir. Did you see him at that point until the car-
riage drove off ? I don't recollect ? You just
got a glance at him ? Yes, sir. Was he still
moving ? He was moving ? Towards the car-
riage or from it ? I think he was moving towards
the carriage. When you saw him he was not
stationary ? No, sir. Where was Bond at that
time? He was standing at the carriage. Which
side ? The side next to the market house. Where
was Tom Powers ? I disremember whether lie
went around to the opposite side of the carriage
or remained at the side where he was. Where was
he at the time that Maultsby was coming up ? He
was about the back part of it. The. closest you saw
Maultsby was nine or ten feet from the carriage?
Yes, sir. Did you see Bond go around i o the other
side of the carriage? Not that I recollect. Where
did Philimon Taylor come from ? He come up
on the opposite side. You didn't see Mr. Cash-
well? No, sir. Nor Mr. Mitchell? No, sir.
Nor T. II. Massey? No, sir. You didn t fee
them that day? Yes, sir. And the time you
saw them was coming down the stairs behind
Archy? Yes, sir, I think they were. Was Mr,
Powers at the carriage so that he could talk to
the persons inside when you saw him ? I think
he was near enough to talk with them. Was ho
talking to them ? I think he was. Did you hear
what he said ? I did not. Did j ou see him tut a
off? I think I saw him when he returned to the
market, I think he came back with Mr. Bond.
Did you see Maultsby say any thing to Mr. Bond
while tlicy were about the carriage? Not that I
recollect. Do you swear he didn't say any thing
to Bond? Not that I heard. Did you notice
him speak to any person at all—I want to know
whether you swear he didn't speak to him ? I
can swear I didn't see him talk to him. Did you
see how Maultsby came away from there ? No,
sir. Did you see where Tom Powers went to
when he came away ? He went back under the
market house I think. You were still standing
about this arch? Yes, sir Was your back to it
still? Not at that time I turned around expec-
ting to see the prisoner come down. Was the
carriage in your view all the time he was standing
there? Yes, sir. And your attention was cen-
tred on the carriage until it drove off? Yes, sir.
Yrou didn't see Mr. Tolar go there? No, sir.
Did you see Mr. Tolar about that time at all ?
No, sir, 1 did not. When was it you turned your
face to look towards the steps inside of the mar-
ket house ? After Mr. Bond returned to the mar-
ket. Did Mr. Bond go up stairs? He did sir.
Did you see whaSbecame of Tom Powers when
you turned your face inside? I did not. Did
you 6ee him through that arch at all ? Not that
I recollect. You don't know whether he stop-
ped. or went in? No, sir. And in looking
through that arch you didn't see him ? No, sir.
Did you see any weapon about Mr. Powers
then? 1 did not, sir. At any time that day?
I did not. From the place where you s'rod
you could see the steps very distinctly? Yes,
sir. Was there any body between you and
the steps ? There were some little children stau-
ding on the bench. What aged children ? Vary-
ing from eight to ten I suppose. How many did
you see there? I saw one or two there. Were
those the only persons you 6aw them between
you and the steps? Yes, sir. Were you leaning
on that bench? Yes, 6ir. If I understand, that
little arch there is a place where men can sit
down, and there is a bar across there, a little
higher up? Yes, sir. Was your hand on that
bar? Yes sir. and you were looking through
there?. Yes, sir. Did you stay there till Bet-bee
turned the arch and came outside ? I staied un-
till Beebeewas bid by the pillar, there was a good
many men walked up there I backed further
down towards the south cart em corner. You
6tood there until Beebee bad got out on the pave-
inent, and this little dificulty had occurred at the
main eastern arch ? Yes, sir. During the time
you were looking in there was any body standing
or sitting on that bench across the little arch ?
None except those children that 1 recollect.
Were they sitting on it ? I forget whether they
were standing or sitting on it. Were they look-
ing inside or outside ? I disremember. Did they
intercept Your view? No, sir. How many of
those children were there then ? Only two that I
293
FBOCEEItlNGS OF A MILITARY COMMISSION,
can recoiled. Do you recollect who they were ?
I do not Were their backs towards you or their
faces ? I think they were sitting facing each
other as near as I can recollect. Their xeet were
not hanging outside? No, sir, they were sitting
on the bench with their feet on the top of the
bench. Do you know Sebastian Arey? I am
not acquainted with him, sir. These two little
children of the ages of eight or teu, were the on-
ly persons you saw there that you recollect?
Yes, sir. During the time you were standing
there, was there anybody standing there of the
age of fifteen or eighteen? Not that I recollect,
6ir. You were there from the time you spoke of,
until Archy got out on the pavement looking in-
side? Yes, sir. And no one was sitting in that
arch with their feet hanging outside towards the
place where you were ? I was not paying any at-
tention to them. Howwide is that arch ? I sup-
pose some ten feet, some eight or ten feet wide
the small eastern arch. Did you think a person
might have staid there with his feet hanging
outside, and you not have seen them ? I might
not have paid any attention to them. Your at-
tentioa was so absorbed by the prisoner, I sup-
pose. Yes, sir. Did you see any such person or
any persoA who was sitting on that bench ? Not
that I recollect. But you think it might have
happened and you not have seen it? Yes, sir.
Just before this crowd came down, did you see
anybody on Becky Ben's bench ? No, sir, not
that I recollect of. Did you see anybody on there
at all? Not that I recollect. Did you see any
body jump up there before Archy Beebee came
In sight and say "he is coming." No, sir. "Look
out boys ?" No, sir. Anything of that sort ?
No, sir. I ask you if a person could have jump-
ed up on that bench without your seeing it? If
they got up on it I would have been very apt to
have seen It then. But you think a person might
have sat there in the arch wi^iin a few leet of
Jrou, and you not have noticed it, but if a person
lad jumped up on the bench you would have
noticed them? Yes, sir, for that would have
been nearly right iu front of me. You say
that if anything of that had happened you
would have seen it? I think so. But you
didn't see any such a thing? No, sir. You
didn't see anybody on that bench at all ? If there
was any there I can't recollect it, there were some
persons standing about there, but I don't know
whether they were standing on the bench or not.
But vou think if" any one h.ad jumped upon that
bench, and said anything, you would have no-
ticed it immediately ? Yes, sir. Yousaypres-
ently Beebee started down stai'-s? Yes, sir. Now,
sir, give us the position they came down if you
please? Mr. Bond came in front of him I think.
Is that a decided impression ? Yes, sir. Have
you any doubt about it? I have not. Who else
came? Mr. Wemyss on his right side. Didn't
the Sheriff come in front ? I disremember.
Didn't the Sheriff come in front of him and come
down to the bottom of the stairs before they came
out of the door ? I don't recollect. Wasn't your
attention centered on that door and the party?
Yes, sir. Now just before the prisoner came out,
xiidn't Sheriff Ilardie come out first and come to
the bottom of the stairs ? I disremember. Wbat
Is your opinion about it ? [My impression was that
became down behind him, as he came down stairs?
And that Bond came down before him ? Y"es, sir.
And that Wemyss came where? On his right
side and Faircloth on his left. And behind were
who? The Sheriff was right in his rear and Mr.
, McGuire and Mr. Brown. Now these other par-
ties that you saw came out. of that door, - Mr.
Mitchell and Mr. Massey? I think they came
immediately after the police. Were they on the
steps at the same time the police and Archy
were? I think they were at the curve of the
steps as the others came down to the floor?
Did you see what became of them ? No, sir.
You say nothing was done at the prisoner at all,
no effort made to get at him ? Not a bit. Didn't
you see any impatience on the part of the crowd
to get up and look at him ? I saw some walking
around to look at him. Didn't you see all mov-
ing up to see ? I could not see all. How many
did you see gather to look at the man? Some
twenty-five or thirty perhaps. And you lost sigbt
of him lor a moment ? Yes, sir, How many
steps could you see him from the foot of the stair
case towards towards the main eastern arch ? I
suppose it was some five 'steps. Could you see
him all the time he was passing from there ? Yes
sir. And you only lost sight of" him while he was
passing the pillar—but an instant? Yes, sir.
During that lime he was passing towards the arch
was there any thing done to him ? No, sir. Any
thing said ? No, sir. Yon heard no exclamation?
No, sir. No outcry. No, sir. Did you see Tom
Powers then ? No, sir. Did you see Monk then?
No, sir. Did you see anybody that you recog-
nizedthen? No, sir except the officers around
the prisoner. Where was your pistol then ? It
was in my pocket. Iu your left side pocket ?
Yes, sir, in my left breast pocket. In your over-
coat? Yes sir. On the outside or the inside ?
On the outside—I am mistaken, I think it was on
the right, in the pocket inside. When the party
turned onfr of the main eastern arch the prisoner^
and the officers with him you did hear and see
something ? As he entered the outer part of the
'main eastern arch. As he got on the pavement?
Yes, sir. Your face was turned towards him ? I
had moved backwards, Had you moved back-
wards then ? 1 had moved back towards the
south eastern corner. While he was passing
around the pillar ? Yes, sir. Did yon move with
your face towards the south eastern corner ? I
walked backwards ? And it was from that point
at the south-eastern corner that you saw and
heard what you are now about to relate ? Yes,
sir. What was it? I heard some person demand
the boy. What did he say ? He said " I demand
this boy." Yes, sir. It was not "we demand
this hoy." It was not as tar as I can recol-
lect. What did the Sheriff say in reply? He
said stand back he is my prisoner. Did ho
say it in the same tone you are using now?
Not altogether. Was it an excited tone? Not
the first demand, that was very quiet. You didn't
hear any oaths accompanying it? No, sir. You
didn't hear him say "damn him, give him to
me" ? No, sir. And the only demand you heard
was this quiet and undemonstrative character?
Yes, sir. And you heard the Sheriff reply it was
what ? "Stand back, he is my prisoner.'' I ask
if the Sheriff didn't say, "Stand back, gentle-
men" ? I disremember whether be said that or
not. Have you any decided impressions about
that? I have not. You didn't see the person
who demanded the prisoner? No, sir. Where
did the voice appear to come from ? It was near
the Sheriff. Where was the Sheriff? At the outer
part of the arch. Where was the voice, appa-
rently behind Archy ? No, sir, in front of him I
think. How many persons weie between you
and the group in which the Sheriff and Archy
were? I suppose there might have been somo
half a dozen ? Were they nearer to you or near-
er to the Sheriff? They were nearer to the Sher-
iff. Were they very close to the Sheriff? Yes,
6ir, Kobert Simmons, I think, was between me
and him tor one. Was be in that group pressing
up close to the Sheriff? Yes, sir. asn't Sam
Phillips there? I don't recollect seeing him at
CONVENED AT RALEIGH, NORTH CAROLINA.
295
that time. Don't you think John Armstrong
was there? I recollect seeing John Armstrong
just before he came down stairs, I don't recollect
seeing him at that time. You saw Simmons to
recognize him? Yes, sir. Did you recognize
anybody else, any white one among those live or
six that you saw ? I did not recognize any one
elseat the time. You are acquainted more extcn-
sively among the white persons than among the
colored persons of Fayetteville. I have no
very great acquaintance among them. How long
have you oeen living there? Only about two years.
You saw a black man's face that you recognized,
but you can speak of no white man's face ? No,
sir, not that I can recollect. Have you tried to
recollect? I have, sir. I want to know if these
five or six persons were scattered along there?
I say there were some live or six standing with
their backs between me and the Sheriff. I want
to know if the crowd extended from the main
eastern arch to the point where you were at the
southern extremity of the market ? Not entire-
ly. There was a space between you and where
the crowd began ? Yes, sir. How wide was that
space? About lour or live feet. And from the
point where that space ended up to the sheriff,
was a crowd ? Y es, sir. How large a crowd was
there? Some fifty persons or more. Were they
close up to the sheriff? Yes, sir. Were they
pressing close?; Yes, sir And that crowd was
close enough to prevent you from seeing the
man who made this demand ? Yes, sir. Did you
see which way the sheriff's face was turned ? No,
sir. You could only tell from his voice it
washirn? Yes, sir. Do you know Tom Pow-
ers? I know his face when I see him.
Do you know his voice when you hear it ?
I might at the present time. Did you have any
acquaintance with him at that time ? Nothing
any more than I knew him when I saw him.
You were better acquainted with Sam. Phillips ?
Yes, sir, I did a good deal of business with him,
was one reason, and he was nearby. You re-
mained then at this point until the pistol fired?
Not exactly at the point where. I was at that time.
You were "still on the eastern side of the pillar ?
Yes, sir. Was this all the disturbance that oc-
curred, just the demand of the prisoner and the
sheriff's telling them to stand back ? The police
whirled their clubs around them. How many
clubs did you see? I saw some three or four
clubs. Who had clubs? I sawWemyssand
Faircloth, and McGuireand Brown. Did they all
have clubs? Yes, sir. Did you see more than
one club ? Yes, sir. Are you confident Brown
had one? Yes, sir. Was there any noise in the
crowd then ? No particular noise. Was there a
general noise ? There was a general noise among
the men talking. What were they saying ? Some
6aid "pushup," "and crowd up there; some said
" take him away," and others were squealing out
to "stand back?" Who were calling out "stand
back ?" The police. Who were calling out to
"push on ?" Some of the men that were trying
to get to him. Did you see any of them to name
them? I didn't, that I recollect; I was looking
for the prisoner. Did you lose sight of him en-
tirely ? At the first time I did until he got out
on the pavement. When he got off the pavement
■what part of the market house was the boy op-
posite ? The north side of the small arch. That
was about the point where he came off the pave-
ment? Yes, sir. IIpw far do you think he got
from the pavement ?■ He didn't go over threeleet
lrom the pavement. You could then see him dis-
tinctly? Yes, sir. Did you then move around
totbesouthend of the market? About that time.
Was the crowd extending from you to the point
ivbere Arcby was then ? - No,sir, they had moved ;
around. Around where? Nearer to the rear.
In the street? Yes, sir. Was there any crowd
on the pavement at all? Not that I recollect, I
had moved where I could not see exactly on tho
pavement at that time. When you left the pave-
ment, was it covered with people ? There were
some people there in front of the arch. The
main portion of the crowd had worked its way off
from the market? Yes, sir. Were there any in
front of him at that time? No, sir. They were
full in your view ? Yes, sir. Did you see any
one standing near to you at that time? I don't
recollect that I did sir. Did you see James B.
Jones ? No, sir, not that I recollect of. Did you
see any thing of Mr. Maultsby? Not at that time.
You saw no one that you remember now ? No,
sir, except the police. What became of Bob Sim-
mons? I don't know. You say in attempting
to get upon the pavement again, Beebee stum-
bled and brought down Wemyss and Faircloth?
lres, sir. Did you see any one trying to strike at
him with a knife at the tune they fell? Yes, sir.
Who was that ? Mr. Watkins. Before they got
back on the pavement? Yes, sir. Was he trying
to strike about the time they fell ? Yes, sir.
Did Wemyss reach him with his club? Yes, sir.
YVhere was Monk ? A little to the front and
right. He was nearer to the pavement than We-
myss ? 1 think he was on the edge of the pave-
ment. Where was Wemyss? He was on the
right side of the boy, Where was Faircloth ?
On his left, That was at the time he fell ? Yes,
sir. And Wemyss you say struck the men who
had a knife? Yes, sir.. Did you hear whether
the knife fell out of the man's hand ? I did not.
Did you hear any complaint he made from the
blow? Not a bit. As the negro recovered from
this stumble on the edge of the pavement which
he made about the north edge of the small arch
on the east side he was shot ? Not at that place
he went off the pavement then. He didn't go
back right straight on the pavement? No, sir,
he went around the small tree. And got further
south? Yes, sir, nearly opposite the southern
corner. He was off the pavement some moment
or so ? Yes, sir. He took a step or two off the
pavement? Yes, sir, about two or three steps.
Was this hubbub still going on ? They appeared
to be coming on to him. Did you see the police
use their clubs at all ? I saw no licks struck ex-
cept the one that struck Monk. When they came
back on the pavement, where did they come back
on ? Opposite the south eastern corner of the
market. They were coming due west, Yes, sir,
as they made the effort to come back on tho
pavement. At that time did Wemyss have
his face to the west? Yes, sir. And Fair-
cloth had his face to the west? Y"es. sir. And
Archy Beebee had his face to the west? Yes, sir.
And they stumbled on the edge of the pave-
mentor for some reason or other went down
as they were coming back? Yes, sir. And
that was at tho very time that Monk had
struck with a knife? Yes, sir. You saw the ne-
gro rise after he fell, did you? Yes, sir. YYas
there any person between you and thegroupthat
had fallen down? Not that I recollect. You
were not eight feet from it ? About six or seven
feet. The width of the pavement? Yes,
sir. You were standing against the market
house? Yes, sir. So that your left elbow
touched the market house ? Yes, sir. * Your face
due east and theirs due west? Yes, sir. And
you saw them raise after they stumbled? Yes
sir. And in the act of raising you saw Sheriff
Hardie catch the negro in the back of the collar?
Yes, sir. With which hand? His right hand.
You are certain it was his right hand? Yes, sir.
And he was standing to the left of Bcebcc then?
294
PROCEEDINGS OP A MIL IT ART COMMISSION,
Yes. About half'covering his rear? Yes. sir.
And he caught him iu the back of the collar a\ ith
his right hand ? Yes. sir. And Sheriff Hardie's
face was to the east? His face was nearly south
his face was turned to the negro. Was the ne-
gro's face on.- way and the Sheriff's another?
No, sir, he was 1 h king at the negro. I thought
you said when ho went down that his face was to
the, west? Yes, sir. When the Sheriff helped
him up was not the Sheriff's face to the west?
J suppose it was his face was turned towards the
negro. You saw his face ? Yes, sir. And you
saw him help the negro up? Yes, sir, well he
only took hold of him as he rose. Sheriff Har-
die's face was towards you then? Yes, sir.
Towards the west ? Yes, sir. And this group
rose up facing towards the west they came up
right in the rear of Sheriff Hardie? res, sir.
Did they change that direction to go to the guard
house before the pistol was tired ? No, sir. The
fistol was tired asthe negro recovered himself?
es, sir. That pistol came over the Sheriff's left
shoulder ? Yes, sir. You could see the muzzle
over liis lett shoulder ? Yes, sir. You saw the
pistol barrel from the muzzle to the hammer?
Yes, sir. And you saw the direction in which it
was pointed ? It was pointed towards the negro.
And you saw the direction, extending back and
forth? Nearly west. Was it nearly to the south
of west? Yes, sir. It came over the Sheriff's
leftsouider? Yes, sir. And was pointed a little
to the south of west ? Yes, sir. Could you see
the hand that held it? No, sir. Let me see
about these positions when the negro recovered
from his fall himself and Faircioth and Wemyss
rose with their faces to the west? Yes, sir.
Hardie was standing behind and as he rose up put
his right hand in the back of his collar and stood
with his face to the west? Yes, sir. He was a
little further to the left than the negro ? He was
a little to the right of the negro. You have
sworn to the left up to this moment from first to
last? I think you are mistaken. Did you make
the same sort of mistake about catching him
with his lett hand instead of his right ? He caught
him with his left hand. The negro was down
when he took hold of him? He took
hold of him just as he was rising? He
took hold Avith bis right hand in the collar?
Yes, sir. Now, sir, how was it, will you explain
to ine, that you could swear in your examination-
in-chief, and up to this point, that he was on the
left of him ? 1 say he was on the right and rear
ot the prisoner. Have you not sworn in your pre-
Vious testimony about tAvo or three times, that
lie was on the left of the negro ? No, sir. You
stick to it noAV that he had his hand on his col-
lar? He had. And was to the right ? Yes, sir.
A little to the right of the negro ? Yes, sir. And
this pistol came over his left shoulder? Yes, sir.
And the pistol was tired behind the Sheriff appa-
rently ? Yes, sir. It was behind in a Avesterly
direction ? Yes, sir, a little south of the west.
How close was it to the Sheriff's lace ? The
muzzle ot the pistol was right opposite his ear I
think. Was it visible in front of him—could he
have seen it ? I don't think he could have seen
it. You think it Avas fired by some one close be-
hind him? Yes, sir. You saw no one there?
No, sir, none that I recognized at all. Almost
as soon as you saw this pistol, you heard the re-
port and saw the flash ? Yes, sir. And the ne-
gro went doAvn ? Yes, sir. Now, sir. when was
it that you heard tlxis exclamation that you re-
cognized as the voice ol Sam Phillips ? just a
moment before the,pistol tired. Did you see any-
body there that you recognized then except the
police ? No, sir. Was that said, in a loud clear
voice? Yes, sir. Was that the only expression
that you heard at that time? Yes, sir. Youhea^d
Phillips as you are confident, as you have no
doubt say, "If you don't give him up. I will
shoot him"? Yes, sir. And then the pistol was
tired ? Yes, 6ir. IIoav many people were closer
to the Sheriff than you were? A good nxany, all
the police were closer, and ttie man who tired the
pistol Avas closer. I at.k you if you ever stated
that circumstance before in giving your testimo-
ny to the Judge AdA-oeate and nxyseif? I did not.
I ask you in g'iving in your testimony to us you
aa-ere not told that you might tell just as little
and as much as you pleased, it was left to jour
own option ? Yes, sir. I ask you further when
you gave us your statement if you didn't profess
to have stated all that you knew with regard to
this transaction ? All of any importance. But
you stated nothing in regard to this transaction?
No, six-, you asked me if Phillips didn't do it, or
it I didn't think he did it, arid I told you yes.
Noav, sir, you have made tlxis statement Avithout
my calling it out, mw, sir, as you have given a
part of that conversation, perhaps j'ou will bene-
tit the Coui-t by giving the whole of it? I told
you my impression was Phillips did it; when the
pistol tired and I told lxim so in his presence at
his store, and that he said, "you are mistaken,"
and afterwards I heard other people say who tired
it, and I said I might have been mistaken per-
haps. Do you remember saying anything about
Oliphant? Yes, sir. Do you remember saying any-
thing about Oliphant having been present when
you were speaking to Phillips and told him you
thought it was lie? Yes, sir. When did you
first tell about having heard Phillips' voice ? To
Mr. Fuller day before yesterday the first time.
And that impression has been upon your miud
from the time it happened until now that you
l.cxrd Phillips' voice distinctly say "give him to
me, or I will shoot him" ? Yes, sir. To Avliom
Avas the remark addressed ? I could not tell ex-
cent to the police. You have no doubt that that
Avas Phillips'voice now? No doubt. You are
very familiar Avith his voice? Yes, sir. You
saAV him frequently ? Yes, sir. And you thought
it was lxis voice then? Yes, sir. And you think
so now? Yes, sir. And immediately after that,
you heard the pistol tired ? Yes, sir. Did the
pistol come from the place where you heard the
voice? About the same place. Well, sir, how
long Avas it alter the pistol fired before you saw
Phillips? I suppose some th-e or six seconds;
it was not half a minute. It was within a half a
minute? Yes, sir. Did you remain t tere 6ta-
tionary after the pistol tired? I remained there
until the crowd was pushed off by the police so
that I could see the bodj'. And during the time
you were standing there it Avas that you saw
Phillips? Yes, sir. Where was he standing then?
He Avas standing some three four feet to the left
and rear of where the pistol tired. Do you mean
to your left or his left? Of his lett as he Avas
facing toAvards me. That was the first sight you
had of him after the flashing of the pistol and the
tailing of the man ? . Yes, sir. What was he do-
ing ? He had the pistol in his right hand rubbing
it against lxis pants. Which side of lxis pants?
The l-ight side. When you just got sight of him
was he rubbing it ? Yes, sir. How many times
did he rub it ? Halt a dozen times. Back and
forth? Yes, sir. What did he do with it then?
He put it in his left, breast pocket? You saw
him do that ? Yes, sir. Had he an overcoat on?
Yes, sir. You could see the pocket then ? Yes,
sir. And lie put it in his left overcoat pocket?
Yes, sir. Now, sir, I ask you just after the firing
of that pistol if he didn't elevate it and look at
it ? Not that I saw. Didn't you hear him 6ay,
after tho pistol fired " the negro is dead hut I
CONVENED AT RALEIGH, NORTH CAROLINA.
295
didn't kill him ?" No, sir, I heard a great many
cry out " he is killed," '"he is killed." Were
you near enough to have heard Phillips if he had
spoken in an ordinary tone of voice ? Not with
the wrangling that was going on at that time.
Wa3 there a crowd wrangling there ? There was
A great many crying out he was killed. Was
that a general cry? Yes, sir. Now, you say it
was after the tiring of the pistol before you saw
Sam. Phillips ? Yes, sir. Do you say you could
not have heard Phillips in his ordinary tone of
voice ? No, sir. But the first time j'ou saw him
he was four or five feet to the left, and rear ol
Beebee, and rubbing his pistol against his pants ?
Ye3, sir. Did you see what become of him after-
wards? No, sir, I did not remain there long, I
saw the prisoner and then turned and went off to
my store. Could you form a conception of where
tue man stood who fired that pistol from what
you saw of the pistol ? I suppose he was between
three and five feet off from the pavement, sir.
Directly in the rear of Beebee and the sheriff?
I think he was a little to the left of Beebee; the
pistol was as it struck him in the left side of the
head. 1 want you to form the opinion from what
you saw of the pistol ? From what. I saw of the
pistol it would bear a little to the left ot the negro.
Was that pistol ranged towards the south west?
Y s, sir. Do you know the points of the compis* ?
Yes, sir, not very well, I know tolerably well, I
know north, south, east and west. What color
■was that over coat that Phillips had on ? A black
one. Did you notice any thing peculiar in its
make or construction so that you could recog-
nize it again if it was produced. I never noticed
any thing more than that it was a black napped
over coat, coarse napped. Now, sir, standing
•where Beebee was, what point do you think is
south west from there? Up Hay street would be
West. South west would be a little to the left of
Hay street ? Yes, sir, from where they were stand-
ing I suppose it would fall about the point be-
tween Hinsdale's and Thompson's. And the
man who held that pistol was to the left cf Bee-
bee? Yes, sir. And the sheriff was to the
right of Beebee, holding him? Yes, sir,
a little to his right and rear. And the pistol
was fired over the Sheriff's shoulder? Yes,
sir. It. was hidden by his head so that you could
not see the whole of it? I could not see the
man's hand for the hair and neck of the Sheriff.
I ask you just after that pistol was fired, if you
did not hear persons cry out in that crowd,
"Capt. Tolar killed him ?" Not at that time.
Didn't you hear several persons say Capt. Tolar
shot him? No, sir. Didn't you hear any one
'say Phillips shot him ? I didn't hear any one
say who shot him. Didn't the people ask who
shot him alter the firing? I didn't hear any one
ask while I was there. The only ones jou heard
were "he is shot, he is shot?" Yes, sir. No,
sir. Did you hear any <>ne say hurrah lor Capt.
Tolar ? I did not. Did you hear any expression
from any quarter after the shooting, indicating
who had fired the pistol? 1 did not. Have you
any enmity towards Samuel A. Phillips ? I have
not a bit, me and him are intimate friends. Have
you any especially kind feelings towards Capt.
Tolar? I have nqt. Do you know xwhere the
pistol is Captain Tolar had on his person the day
t lis shooting took place? I do not. Do yon
swear you do not? 1 swear I do not. Have you
heard him say where it is ? No, sir. Have you
been in the jail with him? Yes, sir. Had ac-
cess to him tor several weeks? Yes, sir. You
have never heard him 6ay where that pistol is
that he had on that day ? No, sir. You say you
saw that pistol just enough to pronounce the
.'sort of pistol it was, from the muzzle down to
the hammer? Yes, sir. And your impressioi*
is that it was the largest size of revolving pistol ?
Yes, sir. You don't know whether it was a Colt
or Remington ? I could not say. Was that a»
Colt or Remington you saw in Phillips' hand af-
terward? I don't know the difference between
them. Do you know any other persons at the=
market house that day who had weapons? 1 do
not. So the only pistol you saw was the one in
the hand of Sam Phillips ? That and the one that
was fired, if they are different ones. And Jon-
athan Hollingsworth, you didn't see him there
that day ? No, sir, I never 9uw him at the mar-
ket house once that day.
Re-direct examination by the Counsel for the
accused.
How long has it been sinee you were examined
about this matter by Mr. Haywood and the J udgo
Advocate the first time? I don't recollect,it was
about lour days alter I arrived here. Up to that
time had you had access to Captain Tolar iu jail ?
Not a bit sir, not up to that time, I was put in
prison wiih him when I first came to Raleigh.
Up to that time had you talked this matter over
with Captain Tolar? Not a bit sir. How long
was it before you were examined the second time
by Mr. Haywood and the Judge Advocate? I
don't recollect how long it was. Up to the time
you were examined the second time by them had
you had any conversation with Captain Tolar
about it ? I never had any conversation with him.
about it not more than I heard him speak >>f sen-
ding for his pistol. Nevermind about that you
had no conversation about the subject matter of
your testimony with Captain Tolar? I didn't
know that I would be called on to give in any
testimony. When did you have any reason to ex-
pect that you would be called to the stand as a
witness in this case ? When you told roe of it.
Day before yesterday ? Yes, sir. In the convert
sation that you had with me about it did I ask
any questions, or did I tell you to go on and tell
your own story ? You just told me to go on and
tell you what I kuew about it. Mr. Sykes you
say you think you didn't hear of this outrage
which it was said Archy Beebee attempted to per-
petrate upon the young lady until the day ot the
killing ? I never heard of it until the day he was
killed. Do you remember what day of iheweck
it was he was killed ? I do not. You don't re-
member whethei it was Monday? It was on
Monday, it was on Sunday, I understood lie com-
initted the depredation, 1 heard on Monday—it
was done on Sunday evening just before dark.
And you don't remember who it was that told
you about it first? I think Jonathan Hollings-
worth was the first that mentioned it. to me. And
after that you think Sam Phillips mentioned it to
you? Yes, sir. Did 1 understand you to say in
"reply to the question asked you by Mr. Haywood
that in the different interviews you have had with
Mr. Haywood and the Judge Advocate, that you
always gave to them as your decided impression
from what you saw, that Phillips was the man who
did the shooting? Yes, sir, at the lime it was
done. That was your impression at the time it
was done ? Yes, sir. Have you ever swerved or
varied from that at all? No, sir. Hint after-
wards, as you told them, you heard a good many
persons say it was Captain Tolar did it, and for a
time you thought you might have been mistaken ?
Yes, sir. I don't care about the conversation at
all but you spoke just now io your cross exami-
nation about having had some conversation with
Sam Phillips after the thing occurred in which
you charged upon him that it was your impres-
sion that he did it? Yes, sir. When was that?
It was 6ome hour or an hour and a half after the
negro was shot* Where was it? It. was at his
258
PROCEEDINGS OP A -MILITARY COMMISSION,
store door. Who was present there besides
yourself and Phillips at the time you told hiui ?
David Oliphant. And you there told him an
hour or an hour and a half alter the shooting,
that it was your impression and belief that he was
the man who did it ? Yes, sir.
The Counsel tor the prosecution :
I shall have to return to that clause unless I do
it now.
Counsel for the defence:
You can do it now.
Counsellor the prosecution:
Do I understand you to say, that you declared
to Phillips that it was then at that time your im-
fression and opinion that he did the shooting ?
told him I thought it at the time the shooting
was done that it was him done it. Did you say
Mr. Phillips I thought when the shooting took
place it was you that did it ? Yes, sir. Did you
express to him that you thought so still? Yes,
sir, it was my impression that it was you was the
word I spoke. You told him it was your impres-
sion when it happened as thus: " It was my im-
pression Mr. Phillips when this thing happened
that you did it," or did you say you thought so
now ? I said I thought so then but I may be mis-
taken, says he; you are mistaken and then—
The Counsel for the accused said he did not
want to hear the conversation.
Counsel for the prosecution said he wanted the
whole conversation.
Counsel for the accused objected to that por
tion of the conversation which was had by Oli-
pliant; I didn't call for the conversation at all, I
just told the witness I did not wish the conversa-
tion at all, it was first brought out by the Counsel
for the prosecution; still we have no decided ob-
jeetion to all that Phillips said on that occasion
exclusively, although it is not strictly admissa-
ble.
Counsel for the prosecution :
I wont insist upon pressing it.
What further did Phillips say? That was all
the conversation we had about it. You told Mr.
Phillips it was your impression and you swear it
now, that it was your impression that he did it,
at the time the shooting took place and I think
so now ? Yes, sir. And that was all you said
except that you thought you might be mistaken ?
Yes, sir. What was the ground upon which you
might have been mistaken as to who the man was
that tired the pistol ? That I saw no man tire the
pistol at all, I could not tell who did it. That
was the very night after it happened ? Yes, sir.
And you say David Oliphant was present then ?
Yes, sir. You have a distinct recollection ot that?
Yes, sir. Did David Oliphantgo there with you ?
Yes, sir, he went there with me from near my
store door.
Re-direct examination resumed by the Counsel
for the accused:
Mr. Sykes, you say you have no ill feeling, no
ill will towards Samuel Phillips? Not a bit sir.
That your store door is not far from Phillips ?
No, sir. How far from it ? The width of the
street? You are on the south side, and he on
the north side of Person street? Yes, sir. You
eay you are in the habit of trading with him ?
Yes, sir. Both in the giocery line; Phillips a
Jittle more largely than yourself? Yes, sir.
How long have you known Mr. Phillips. I have
known him personally some eight years. How
long have you known Captain Tolar ? I have
known him nearly all my life sir. Have you
ever had any particular dealing with Captain
Tolar? No, sir, nothing, except I used to buy
a piece of meat under the market house from
him. I understand yon to say your relations
with Capt. Tolar are not of an intimate character
by any means, that you only know him as a pass-
iug acquaintance? I only know him as an ac-
quaintance, we were raised near each other. Mr.
Sykes, I wish you would, if you please, if you
can, do it with your one hand, just stand on the
stage and give to the Court, as near as you can
the manner of the person who held that pistol
and the manner in which the pistol was pointed
at the time you saw it ?
(Down by bis right leg, rubbing the cylinder
against his pants, opened" his coat in the left side
and dropped it into his pocket.)
What did he do with his hand? lie dropped
it back. (Witness represents the position of
Beebee and the Sheriff and the man who tired the
pistol, Beebee to the front of the Sheriff and
about a foot to his left, the Sheriff grasping fcim
in the back of the coat collar with his righthand,
the pistol pointing in the direction of Beebee's
head, and within a few inches of the Sheriff's
left ear.) As to Tom Powers, you say as to that
day you barely knew him only when you saw
him ? I knew him only when I saw him.
Questioned by the Commission:
When you saw that pistol presented to Beebee,
did you try to see who had that pistol ? No, sir,
it fired so quickly I could not see. After that
pistol fired did you make any effort to see who
tired it ? No, sir. You had no curiosity to know
who fired it? No, sir, I did not. You stated
that you were with David Oliphant at the store
of Mr. Phillips, and you told Mr. Phillips that it
was your impression that he had fired that pistol ?
Yes, sir. What did David Oliphant say ? He
said the same as Phillips did, he said I was mista-
ken. What else did he say? He said it was
Capt. Tolar did it. He said he saw Capt Tolar
fire the pistol? Yes, sir. Was that what he
said? Yes, sir.
The Judge Advocate announced that there was
no witness in the city to be examined to-day,
whereupon
On motion the Commission adjourned to meet
on Thursday, Sept. 6th, at 11 o'clock, A. M.
Raleigh, N. C., Sept. 6th, 1867,10 A. M.
The Commission met pursuant to adjourn-
ment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused and their Counsel.
The reading of the testimony taken yesterday
was waived, there being no objection thereto.
Yesterday's proceedings were then read and
approved.
Isham Blake, a witness for the defence, hav-
ing been first duly sworn, testified as follows:
Examined by the Counsel for the accused.
What is your name? Isham Blake. Where
do you reside ? In the town of Fayetteville. Fay-
etteville, N. C.? Yes, sir. How long have you
been residing in the town of Fayetteville? Sixty-
three years, sir. Were you in the town of Fay-
etteville ou the day Archy Beebee was killed ?
Yes, sir, and the day after also. Were you at the
market house on the day he was killed ? I was,
sir. . At what time did you reach the market
house ? It was a short time after dinner, I don't
recollect the precise time, I eat dinner generally
at one o'clock. Were you there after Archy Bee-
bee was killed? I was, sir. What do you know
about the killing of Archy Beebee? Nothing in
the world. Where were you at the time the kill-
ing occurred? I was UDder the market house, I
saw there was likely to be a disturbance there,
and I turned my .back and went towards the mid-
die of the market house. Which way were you
fronting at the time he was killed ? That is a
CONVENED AT RALEIGH, NORTH CAROLINA.
207
question I don't think I could answer; the fact
is I was excited a good deal, and I turned as I
Saw there was going to be a disturbance. You
were there after the"killing? Yes, sir. Did you
go to the body of Beebee after his death? I did,
sir. In what capacity, if any, did you go ? I went
there to see the body in the first instance; he
just gasped his last breath when I got up there,
and the Sherifl remarked to me, " Mr. Blake, you
must act as coroner to-day," and called upon
two or three magistrates there and took me up
stairs and qualified me. Did you act as coroner?
Yes, sir. Did you summon a jury ? I did, sir.
Did that jury find a verdict ? It did, sir. I don't
ask you what that verdict was; on what day did
the jury find a verdict, the day of the killing or
the day subsequent ? It was the second day, I
think, sir, the verdict was signed in the evening,
I think; it was the second, probably it may have
been the third; I know we were two or three
days engaged. Was there any dissent to the ver-
diet? None that I heard, sir, every member, as
soon as the verdict was agreed upon—it was late
in the afternoon, and there was some gentlemen
from the country, Mr. Hendricks and one or two
others that were very anxious to go home, and I
agreed to wait upon them the next day. Those
that were in town signed the verdict that after-
noon ? All that I could see, sir. And there was
no dissent? Not a dissenting voice that I heard
of. Were you applied to by any member of the
jury for instructions as to their duty ?
Counsel for the prosecution:
I object to that, sir.
Counsel for the accused:
State your objections.
Counsel for the prosecution:
I can't see any relevancy at all.
Counsel for the accused :
It would be as well to bring the question up;
I supposed of course it would be objected to.
The Court must see that this witness Isham
Blake, the coroner on that occasion, had been
summoned here mainly for the purpose of proving
that Samuel A. Phillips, a member of the jury on
that occasion, did not, as he has sworn, apply to
Mr. Blake for instructions with regard to his
duty on that point. I know that it will be replied
by the Counsel for the prosecution, as upon the
proposed examination of Thomas A. Hendricks,
that this testimony is not admissible, and it-is not
admissible because it is not regarded to be a col-
lateral fact, and that with regard to the evidence
the defence is bound by the answer of Samuel A.
Phillips. I know the former ruling of the Court,
and I desire to put the matter fairly before the
Court in order that they may consider it again,
and that upon fuller argument, and fuller and
more mature deliberation than tbey had before,
that they may either confirm their former decision
or that they may recede from it.
I know the nature of this Court too well, I
think, and my experience with regard to this
Court for the last six or seven weeks has satisfied
me too fully and too thoroughly of their inten-
tion to do what is right, and alone what is right,
that I trust I shall not be considered as pressing
the matter beyond due bounds, because I ask the
Court to reconsider one of its decisions.
1 desire to state here distinctly before the Court
that the object and the only object of this ques-
tion and the answer thereto, is to discredit the
witness Sainual A. Phillips.
It is not to effect the matter at issue at all but
to show to the Court that the witness, Samual A.
Phillips, has sworn here deliberately to a fact
which is not a fact, and which he knew to be not
a fact, at the time he swore to it. Now I am well
aware that it has been decided that the rule Fal~
sum in unofalsum in omnibus bus no application
in criminal cases. I am also aware of the fact that
while, when a Court be satisfied that a witness
has even sworn falsely and criminally in one fact,
they are not at liberty to reject his testimony in
another. That is a principle of law, and it is a
principle which has its basis in human nature,
that a witness who has sworn falsely in one re-
spect about a matter of which he must be cogni-
zant, about a matter concerning which he could
not have been mistaken, that if he swears falsely
thereto it ought to effect, and it does effect a wit-
ness's credibility, and it is for that purpose, not
touching the competency—not going to any oth-
er extent—not touching the matter at issue di-
rectly—but it is for the purpose of effecting
the credibility of the witness, Phillips, that this
testimony is introduced.
The Court will remember the testimony of that
witness.
The Court remembers that he came upon the
stand, and at his own instance, and at the sug-
gestion of the counsel for the prosecution, drawn
out of him from that side and not from ours, that
he gave as a reason for finding that verdict that
the deceased came to his death by the hands of
an unknown person, that he thought himself,
that he was bound by that evidence which reach-
ed his hearing from the lips of witnesses and that
being uncertain upon that point, he appealed to
the coroner and that the coroner confirmed him
in that. The Court will remember that he said
that he appealed to Blake the coroner to know
whether he could act upon any other testimony
than that of the testimony, which was delivered
from the witnesses from the stand; and that
Blake told him he was bound to take the testi-
mony of the witnesses that fell from their lips,
and he could not act upon any other matter.
Now suppose it shall appear from the testimony
of Blake, that Phillips made no such application
to him at all; that he has a distinct recollection of
what occurred there, and that Phillips never ap-
proached him upon this subject; suppose it shall
appear that he never told Phillips any such thing;
in what attidude does it place the witness Phil-
lips before the Court. It places him necessarily in
the attitude of a man who has sworn falsely and
who has manufactured reasons for his falsehood
and nothing else. Why, sir, all Courts of justice.
Military Commissions as well as the Courts of
the law set for the investigation of truth, and
every thing which tends to throw light upon
doubtful testimony; at any rate it is proper for
the Court to receive and it is improper for the
Court to reject.
Now this doctrine about matters collateral to
the issue, and matters tending directly to cir-
cumstances , s a nice point. The line as was ad-
mitted by the Counsel, is finely drawn and it is a
difficult matter to say where the shunshine fades
into the shadow, where the one is and the other
is. The bounderies are not well defined, but I
put it. to this Court, upon their heads, upon their
consciences and upon their common sense, is this
not pertinent to the issue?
Isn't it pertinent to show the character of Samual
A. Phillips and directly upon that question of
character, isn't it admissible to show that he has
sworn here in a matter which has assigned as a
reason for certain actions of his which was false
and he must have known to be false ?
This is all we have to say about the matter, sir.
We offer testimony for the only purpose in the
world of discrediting Samuel A. Phillips; we of-
fer it for the purpose of affecting his credit before
the Court.
Counsel for the prosecution :
I don't think it necessary, if the Court please,
to reply in this matter. I submit it to the Court
under the former argument upon the eame point,
398
PROCEEDINGS OP A MILITARY COMMISSION,
only suggesting this: that should the Court re-
verse its former opinion and decide the matter
differently, now, there necessarily will be an
error in the record, one way or another.
The Court was cleared for deliberation, and
after some time so spent, the doors were reopen-
ed and the Judge Advocate announced that the
Commission sustained the objection of the prose-
cution, to the witnesses answering the questions
propounded by the defence.
Counsel for the defence:
For purposes of record of cause upon the same
line, expecting some objections to be made, I
will ask the witness another question : Mr.
Blake, did Samuel A. Phillips, a member of the
coroner's jury, ask you on that day if all the ju-
ry was bound to find upon the testimony which
was given in by the witnesses upon the stand, or
if they were allowed to find upon what they
knew of the matter themselves.
Counsel for the prosecution:
We object to that for the same reason.
The Court was cleared for deliberation, and af-
ter some time so spent, the doors were reopened
and the J udge Advocate announced that the Com-
mission sustained the objection of the prosecu-
fion, for the reasons set forth.
Direct examination continued:
Mr. Blake are you acquainted with the gener-
al character for truth, of James W. Brown? I
have known him some time. Are you acquaint-
ed with his general character for truth ? I be-
lieve he is a hi an of good character. Are you ac-
quainted with the character of James W. Brown,
answer the question, yes or no. Well, I believe
it is generally good. Mr. Blake, I mean by gen-
eral character for truth, what is said by those
who know him, and those who live around him ?
His character is said to be good, sir. When the
question I ask you, is, are you acquainted, yes
or no, with the general character of James W.
Brown, for truth ? Personally, I can't say, I have
never had intercourse with the man, only what I
have heard. I don't want you to speak of your
own knowledge of the man's character, I want
you to answer the question, whether you are ac-
quainted or whether you are not acquainted
with his general reputation in the community for
truth ? That is what others say of him, I think
I can answer the question and say, I am. What
is that character? It is good for truth. That is
what I asked for; are you acquainted with the
general character for truth of Israel C. Bond ? I
think I am, sir. What is that character ? Good,
sir. Are you acquainted with the general char-
acter lor truth, of Henry E. Sykes ? I am not, sir.
Cross examination by the Counsel for the pros-
ecution:
Mr. Blake you went to the market house the
day that Archy Beebee was killed just after your
dinner? I did sir. You went underneath the
market house? Yes, sir. Which end did you
enter at ? The western arch ? Did you take a
seat or were you moving about ? Just walking
about. Were you inside of the market house
when Archy Beebee was carried up stairs? No,
Did you go there after he was carried up ? Yes,
sir. Were you in the market house when Miss
Massey and Mrs. Massey came down stairs ? I
think I was, I think they came down just about
the time I got there, I saw some ladies go off,
but I didn't put myself to any trouble to find out
anything about it, I had heard they were going to
be there, and I thought it was them. How long
were you there altogether, fifteen or twenty min-
utes previous to the homicide ? Well I presume
sir, it was probably between twenty or thirty
minutes. Did you see any body in that crowd
during these fifteen or twenty minutes that you
recognized? Mr. Lcggctt, Mr. Nixon, Monk'Jn-
lia, I don't think I recollect any person else.
Did you see Ralph Lutterloh ? I saw him after.
Did you see him before Archy came down ? No,
sir. Did you see E. P. Powers there? Yes, sir.
Did yon see Sam Hall any where about there ?
No, sir. Do you know Henry Sykes, the one
armed man ? I know him. Did you see him
there ? I did not, sir to my recollection. Did you
see Sam Phillips there ? I can't say that I did,
sir. Can you tell me where Tolar was and what
he was doing when you saw him ? He was stand-
ing about the eastern arch conversing with Mr.
Leggett when I walked np. Any one else ? I
think Mr. Powers was standing on the opposite
side. Were they right at the arch or further un-
der the market house ? They were further in the
market than under the market near Becky Ben's
bench. I ask the question if the prisoner was up
stairs all this time ? Yes, sir, I started to go up
but was prevented I then immediately came
down and walked back in the market house. Do
you know about what part of the market house
you were when this disturbance first began that
caused your anxiety ? Well sir I was in the east-
era part of it, not far from the arch. Did you see
the prisoner Beebee at all ? I saw him when he
was brought down by Mr. Hardie sir. Did you
see who was with him ? Mr. Hardie I think was
with him and Mr. Wemyss and Mr. Faircloth, I
recollect those gentlemen. Did you see Brown
there ? I think he was too. Did you see Israel
Bond there with him ? Yes, sir, I think he came
down either immediately before or after the pris-
oner. Do you remember when Sheriff Hardie
came down ? I think he came down in front as
well as I recollect. Do you remember the
relative positions of those different men about
the prisoner while they were coming down
the steps. I think Mr. Wemyss had him by a
string around one of his thumbs. Do you re-
member on which side he was ? No, sir." What
was the first appearance of violence that you saw,
sir ? Ths first appearance of violence that I saw,
sir, was a pushing of the crowd. Where was
Archy at that time ? The Sheriff stopped him
just about the time he got down • to the foot of
the steps. That was the first time you saw any
appearance of violence, there was nothing on the
step ? No, sir. Was there a rush towards him
by the crowd when he got to the foot of the steps?
1 saw some men pushing forward. Rapidly?
No, sir. Was that what caused your anxiety? It
excited me as soon as 1 heard this commotion,
and I left. You left on account of the commo-
tion? Yes, sir, I didn't wish to know anything
about it. Your apprehensions were excited that
something was in the wind ? Yes, sir. Did you
leave ? 1 went into the upper part of the mar-
ket. Did you see who any of these men were?
No, sir, I didn't know a single man that was
there; How many men do you suppose were in
the market house according to your best esti-
mate ? I suppose there was'a crowd of some fif-
ty to a hundred in the market and around it.
Was that a general rash up of the whole crowd,
or only a few individuals ? I could not say posi-
tively because as soon as I saw the indications, I
wanted to get out of there, and I moved my posi-
tion. Did you hear any noise, any expression from
any quarter ? I think I heard some one say u there
he comes." Did you hear any one say, " I demand
the prisoner" ? I can't say that I did. Have you
any impression about that? Well, sir, impres-
sions are so easily formed in cases of excitement
of that kind, I do not think that I would be 6afe
in saying that I heard any expression of that kind.
Did that movement of these few men produce
that impression on your mind ? It produced this
much when these men were coming down, I
knew there was so large a crowd gathered there,
CONVENED AT RALEIGH, NORTH CAIiOLINA.
299
T
there must be something on hand. Were there
any signs of excitement in the crowd ? I didn't
see any, only as I told you when they came down.
Did you hear any such expressions after the ne-
gro got down to the foot of the stairs, and before
he passed out of the arch as "damn him, give
him to me" ? No, sir. Did jmu hear Sheriff
Hardie say "stand back, gentlemen"? I think
when he first came down the steps, he remarked
"stand back, gentlemen, he is in my custody and
I shall defend him," I think I heard that remark.
Was that the only exclamation you heard from
that crowd, did you hear any such cries as 4 'shoot
him," "shoot him," "kill him," "kill him,"
"give him up," " pitch in," and so on ? If there
was any such exclamations as that, it must have
been after he was out of the market house. You
heard the pistol fired ? Yes, sir. Was it a very
faint explosion ? I didn't think it was a very faint
one, it was about as usual. Did you observe
what sort of a day that was, whether cold or
warm ? I didn't take notice. Uan.you say wlieth-
er the sun was shining, or it was a cloudy day—
perhaps some recollection of your dress will
cause you to remember? I can't recollect at
present. Do you remember whether there was
any wind blowing on that day ? No, sir. After
the pistol fired which way did you turn ? I im-
mediately came back. Which end ? Out of the
eastern end. You were at the western end ? Yes,
sir. Did you turn immediately ? Yes, sir. Did
you see Capt. Tolar when you got down to the
eastern end? No, sir, I didn't see Capt. Tolar
from the time the prisoner went out that I recol-
lect. Did you see James W. Brown? I don't
think I did. Did you see Mr. Cashwell ? No,
sir. Yon went to the spot where the negro was ?
Yes, sir. Was the market empty as you passed
through it? N o, sir. Were there any persons there
beside these women that sell cakes ? I can't re*
collect exactly for I was excited, and I moved out,
my object was to see whether the negro was killed
or not, and what had happened after I heard the
pistol. You remember this, that you saw no
one you can speak of, in passing through there,
that you can't tell whether any one was in the
market house or not? There were people in the
market house but I can't tell who they were ?
Was it the same crowd that was in it wjaen you
saw Archy come down ? I can't say, sir. Was it
as large a crowd? No, sir. Now, Mr. Blake,
you passed right through the main aisle of the
market house? Yes, sir. Was your passage
obstructed at all ? No, sir, I don't think the
crowd was large enough to obstruct my passage.
Do you remember seeing any body in the mai-ket
house ? No one that I recognized. Did you stop
in the arch or pass through it ? I passed through.
Did you notice any body in the crowd that you
recognized besides the officers who were about
the deceased man ? No, sir, I don't recollect now
of any particular person. Have you a son who
was in that crowd that day? if he was I don't
know it, I didn't see him. Have you a son who
is grown to manhood? Yes, sir, four of them.
Are they all living in Fayetteville ? No, sir,
Henry, Frederick and Joseph live in Fayetteville,
Did you see any of them there that day ? I didn't
see one of them there. You are not the regular
coroner, as I understand jrou? No, sir. You
were appointed for the special occasion ? Yes,
sir, I have frequently served in that capacity.
Who was the coroner? We have no coroner for
the county. Was there none at that time ? No,
sir, I don't think there has been a coroner there
for twenty years, no regular coroner. As you
passed through that crowd immediately after this
shooting did you hear any exclamations of who
had done it? I did not, sir. You had to pass
through the crowd to get back did you? Yes,
sir. In passing through that crowd did you hear
any one enquire who had done it? No, 6ir. Was
the crowd noisy or still? You know what the
confusion would generally be in a case of that
kind. There are various degrees of confusion on
such an occasion as that; my impression is that
after the first discharge there would be an im-
mediate stillness for a moment or two, but I want
to know whether there was an immediate still-
ness ? Every person in the crowd appeared to
be pushing to get to where the boy lay; there
was a general push to get to where he was. You
heard no conversation ? I did not, sir. There
was some noise ? Yes, sir. Did you hear any
conversation at all ? No, sir. Did you hear any
body ask who had done it? No, sir. Did you
ask yourself? No, sir, immediately on going up
I was asked by Sheriff Hardie to act as coroner.
Didn't you ask him who fired the pistol ? I did
not that I recollect. A man shot there and jrou
came right back in the crowd and didn't ask
who did it ? No, sir. Did you know who did it ?
No, sir, I did not, nor do I know now. And you
heard no one ask ? No, sir. And you heard no
one state who did it ? No, sir.
Re-direct examination by the Counsel for the
accused:
Mr. Blake, you say that you saw some pushing
up of the crowd—was that pushing up of the
crowd when Beebee came down stairs greater
than the pushing up of the crowd alter he was
dead ? I think it was greater after he was dead.
You say you heard nobody say who had killed
him? I did not, sir. And that you passed
through the crowd? Yes, sir. Passed fx-om the
eastern arch down the pavement? I came right
out of the eastern arch and off the pavement—
the pavement was so full I could not press my
way through. How long after the shooting be-
fore you went out there? It could not have
been more than a minute or two. Almost imme-
diately alter the shooting ? Yes, sir, I think my
face was westward when the pistol fired, and I
think I wheeled around as soon as it fired, and
came right out. You went around the crowd,
where did you enter thWcrowd, from what point,
the southward ? No, sir, I entered the crowd
from the north part, I just came out of the east-
ern arch and come down. You went around the
crowd, I understand ? Not exactly around it, I
came through the crowd and I got off of the
pavement and just made my way through the
crowd. And where did you get on the pavement
when you went up to see the body ? Right at
the corner of the market house, I think, where
the deceased was. Did you experience any difli-
culty in passing through the crowd ? When I
went up stairs, I had. I am speaking of when
you went out of the arch to go up and view the
body? Yes, sir, there was some difficulty. And
you say all that time you were passing through
the crowd you heard no exclamation at all as to
who had done the deed ? I never heard a word
that I recollect of- How long did you remain at
the body ? I don't think I was there more than
a minute or two. When you started up from the
body to go up stairs to be qualified as coroner,
did you go through the crowd again? I don't
think we did. Which way did you go out of it ?
I think I made my way through on the pavement.
Which pavement ? The pavement of the market
house, just about where the body was laid out.
There is a pavement running west, one south,
one east, and one north—which one ? I think I
came towards the north and went up stairs, by
this time the crowd was thinning off. During
the time you. were at the body or between the
time that you left and went through the eastern
arch ol the market and up stairs, did you hear any
body say who shot hiin? I did not, sir, the
300
PROCEEDINGS OF A MILITARY COMMISSION,
•whole time I never heard a man say who
had shot the boy at all. Mr. Blake, who sum-
moned the witnesses to go before the coroner's
inquest ? I summoned some; and some of the
policemen summoned some of them. Why were
more witnesses not summoned?
Counsel for the prosecution objected on the
ground that it was new matter.
Counsel for the accused.
We will not press the question at all.
Question by the Commission:
I believe you spoke of the character of Israel
Bond did you not? Yes, sir. Do you know
whether he is a member of any religious society,
or not ? I do not sir. Is he or is he not a drink-
ingman? I don't think he is, sir. You say you
saw Beebee as he came down stairs, just before
he made his appearance on the stairs, did you
hear any exclamation in the crowd something
like this "rally boys" or "lookout boys"
"watch out boys" "here he comes" or any
thing to that effect ? I did not. Did you hear
any such cxpresesion after he appeared on the
steps ? I did not, sir. Did you hear any such
expression at any time ? I did not sir.
The Counsel for the accused said there were no
more witnesses here to be examined, but one
witness had been sent from Fayetteville and he
supposed he would be here to-morrow.
The Judge Advocate said :
There seems to be a disposition upon the part
of witnesses to come when it best suits their con-
venience, without any reference to the summons
of the Court, and I suggest that some summary
means be taken to inform the witnesses in this
case and in the cases that shall come hereafter,
that the summons of this Court is not to be
lightly disregarded.
The Counsel for the accused:
In order that the Commisssion may understand
the matter, I thiuk there is some fault in the
quartermaster's department. Mr. Blake informs
me he started here on Tuesday, that he went up
to get his transportation and the quartermaster
informed him that he could not give him trans-
portation by the direct line but he would give
him transportation by the way of Wilmington,
and owing to a change of time in the schedule he
was delayed. Now it is altogether probable that
the other witnesses that have been summoned
have been started off in the same way and have
been delayed. I think that it is certainly not the
fault of the witnesses.
The Judge Advocate said r
There have been a great many cases in which the
fault has been entirely that of the witness and it
is only to such eases that I refer.
There being no more witnesses to examine, on
motion the Commission adjourned to meet on
Saturday, Sept. 7th, 1867, at 11 o'clock, A. M.
Raleigh, N. C., Sept, 7th, 1867,11 A. M.
The Commission met pursuant to adjournment.
Present, all the members of the Commission,
the Judge Advocate, the Counsel for the prose-
cution, all the accused, and their Counsel.
The reading of the testimony taken yesterday,
was waived—there being no objection thereto.
Yesterday's proceedings wore then read and ap-
proved.
The Judge Advocate:
The witness referred to by the Counsel for the
defence, yesterday has not arrived. The Counsel
for the defence stated to me that he has received
a letter from his associate in Fayetteville, inform-
ing him that the witness is sick, and if I recollect
right he stated he could not come before Saturday
Now this is Saturday and the question is, what
Saturday is meant? "in reply the Counsel for the
aeeused"read the letter referred to, which stated
that the witness would leave Fayetteville on Sat-
urday morning.
The Judge Advocate :
I would like to know irom the gentlemen if
this is their last witness.
Counsel for the accused:
We do intend to close the case for the defence
with the examination of these witnesses.
Judge Advocate:
Which witnesses?
Counsel for the accused :
Ahern and Owen Moore, such has been and
sueh is the intention of the Counsel for the defence.
Judge Advocate:
As the gentlemen have not yet been able to as-
certain or give us the precise residence of Owen
Moore and" as every effort has been made by the
Judge Advocate to procure his attendence, I
shall object to any delay, waiting the arrival of
Owen Moore, after Monday. I wish to make this
statement now so that the Counsel on the other
side may definitely understand it.
Counsel for accused:
We are in hopes we shall be able to close for
the defence on Monday. We had hoped to close
to-day. These delays by non attendence of witnes-
ses are as hateful to us as they can be to the Court
or the Judge Advocate. I would ask when will the
case for the prosecution be closed?
Judge Advocate :
On Monday. We shall endeavor to close on the
same day that you do.
Counsel for the prosecution:
You don't, I suppose, expect to wait indefinite-
ly for Mr. Owen Moore ?
Counsel for accused:
We do not, sir, expect to wait indefinitely for him.
Counsel for the prosecution:
If he is not here on Monday, we shall have to
insist on a close.
Counsel for accused:
I so understand it, sir.
There being no witnesses in attendance, on mo-
tion the Commission adjourned to meet on Mon-
day the 9th instant at 11 o'clock, A. M.
Raleigh, N. C., Sept. 9,1867,11 A. M.
The Commission met pursuant to adjournment.
Present: All the members of tbe Commission,
the Judge Advocate, the Counsel forthe prosecu-
tion, all the accused, and their Counsel.
Yesterday's proceedings were read and approved.
The Counsel for the accused said the witness
Ahern had not yet arrived.
The Judge Advocate:
I will state to the Commission that other wit-
nesses summoned a week later than this one
Ahern have arrived in town. Witnesses starting
from Fayetteville on Saturday, arrived here yes-
terday (Sunday.) I move that the case for the
defence be closed without waiting the arrival of
the witness.
The Counsel for the accused:
All we have to say to it, sir, is that we are pret-
ty well satisfied that the witness, Owen Moore,
has not been reached by a summons at all. The
testimony of witness Ahern is material, and we
regard it as very important. The prisoners are
not willing to have their case closed until his tes-
timony is given in. I can give you no reason for
his absence unless it is that he is sick. Mr. Mc-
Rae wrote me on Saturday that Ahern was then
sick, and his sickness may be continued, and
that may be the cause of his absence. That is
the only suggestion we can make why he is not
herein obedience to the summons.
If the Court rules to close the case we have to
submit fto it, but we regard the testimony of
Ahern as important—highly important. I would
CONVENED AX RALEIGH, NORTH CAROLINA.
SOI
like very much indeed to get it before the Court
before we close.
The Judge Advocate:
Ou the part of the prosecution I will say that
I am as anxious as the Counsel for the accused is
that the testimony of the witness Ahern should
be given in, but I am not willing that the time of
this Court should be taken up in waiting from
day to day for one witness, whose residence the
Counsel have not been able to ascertain, and who
is as easily reached perhaps as the man in the moon
and for another witness who refuses to come—
summoned by themselves, to prove something as
they claim to be material to their case.
The Commission was then cleared for delibera-
tion, and after some time so spent, the doors
were reopened and the Judge Advocate said:
The Commission does not sustain the motion of
the Judge Advocate to close the defence. The
Commission orders that the witness, Ahern, be
immediately arrested and brought to Raleigh.
The Counsel for the accused said if the wit-
ness Ahern did not come to-morrow, they would
be willing to close without him.
On motion the Commission adjourned to meet
on Tuesday, Sept. 10th, at 11 o'clock, A. M.
Raleigh, N. C., Sept. 10th, 11 A. M.
The Commission met pursuant to adjournment.
Present: All the members of the Commission,
the Judge Advocate, the Counsel for the
prosecution, all the accused and their Counsel.
The proceedings of yesterday were read and
approved.
The Judge Advocate said :
The witness, Ahern, has not arrived, and I
suppose will not arrive until he is brought here
under arrest in accordance with the orders of the
Commission issued yesterday.
The Counsel for the accused:
I will say to the Commission with regard tc
the witness, Ahern, that what we say we will
stand up to. We announced to the Court yes-
terday that it the witness Ahern didn't come
to-day, we would close without him, and it it
be the Court's pleasure that we should do so, we
are willing to make good our promise. I will
lay before the Court what I have received this
morning; 1 think that in justice to the witness,
Ahern, it should be done. The Counsel then read
a document of which the following is a copy:
Fayetteville, Sept. 6, 1867.
I hereby certify, on honor, that Mr. James Ahern
has been under my treatment for more than a
week, for rheumatism, and at present he is una-
ble to bear the fatigue of a trip to Raleigh. It is
probabie that he can go up the first of next week.
(Signed) W. C. McDufeie, M. D.
The Judge Advocate:
As the order has been issued for the production
of this witness Ahern, before closing the Court,
it would be as well probably to hear his testimo-
ny before closing. The Counsel stated yesterday
that the witness was in his opinion necessary and
material to his case, and if the Counsel for the
accused does not wish to close without having
his testimony, perhaps it would be as well to
give them the benefit of it.
The Counsel for the accused :
We merely state to-day, sir, what we stated
yesterday: it the Court wish, we are willing to
stand by that.
The Court was then cleared for deliberation,
and after sometime so spent, the doors were re-
opened, and the Judge Advocate announced that
the Commission desired to be informed whether
the Counsel for the accused wished to have tlietes-
timony of the witness, James Ahern. This with-
out any reference to anythiug that has been said
heretofore.
Counsel for accused:
I will state very frankly, that I have never seen
this witness, but I have from Mr. McRae a letter
in which he gives me at some length the testimo-
ny of Ahern. From this letter it appears that I can
get along without it very well as main testimony,
that Ahern will state no"new points, but that his
testimony will be corroborative of certain other
witnesses upon certain material points. I don't
know, sir, but what we may agree upon the testi-
moiiy of Ahern.
The Judge Advocate:
Oh! no, we can't do that.
The Counsel for the accused :
Well, sir, it must be now apparent totlie Court,
that we are ourselves as anxious to close the case
as any one can be.
The Judge Advocate:
Well, it is for the Connsel to decide. They can
. move either for a close or a continuance. It is en-
tirely in the option of the Counsel for the defence.
The Counsel for accused :
We will just consider the matter for a minute.
The Counsel for the accused then withdrew for
a few minutes to consult upon the question and
upon their return to the Court room announced
that they were willing to close the case without
the testimony of the man Ahern.
The Judge Advocate, I will now request the
permission of the Commission to introduce the
bullet heretofore spoken of in the evidence in this
case, and to have it identified and weighed in the
presence of the Court. If the Court has no objec-
tion this will now be done.
The^Commission, we have no objection.
The Judge Advocate then suggested a recess of
fifteen minutes as the witnesses were not yet in
attendance.
The Commission then took a recess of a qnar-
ter of an hour, at the expiration of which time
they proceeded to business.
Charles P. Young, a witness for the prosecu-
tion having been first duly sworn testified as fol-
lows:
Examined by the Counsel for the prosecution.
Have you a package that was delivered to you
by the Judge Advocate? Yes, 6ir. Will you
produce it if you please ?
(Witness produces the package.)
Who scaled that package ? I did. Under whose
direction? General Avery's. What is inclosed
in it? A bullet. Has the bullet any inclosure
about it ? It was in a box within a broken en-
velope. Who broke the seal of the broken en-
velope. I broke the envelope. You tore off the
edge of the envelope and opened it, and took out
the bullet? Yes, sir. Is that the same bullet
that you returned in there? Yes, sir. Just open
the package if you please.
(Wisness does so.)
That is the package that you enclosed when you
sealed it up ? Yes, sir.
Francis Kenstler, a witness for the prosecution
having been first duly sworn testified as follows:
Examined by the Counsel for the prosecution.
Did you ever see that package before? Yes,
sir. Was it sealed in your presence? Yes, sir.
Do you recognize the impression of the seal ?
Yes, sir, Did you keep the seal ? Yes, sir. What
did you put in that package when you sealed it ?
A bullet was put in it. Just take that bullet out
if you please ?
(Witness does so.)
Where did that bullet come from originally ?
It come from the head of a man supposed to have
been shot, by the name of Archy Beebee. That is
the bullet that you brought from Fayetteville ?
Yes, sir. You saw it taken taken out of the head
of Archy Becbee? Yes, sir. You have no doubt
about its .being the same bullet? No doubt at
303
PROCEEDINGS OF A MILITARY COMMISSION,
all. The bullet that came out of Archy Bee-
bee's head, was the one you sealed up in the
package? Yes, sir. Did you put any mark on it ?
I did not, sir.
Cross examination by Counsel for the accused.
You say you saw that seal put upon the pack-
age? Y^s, sir. And the seal you kept in your
pbsessesion ? Yes, sir. Where is the seal now?
(Witness produces the seal.)
The Judge Advocate:
Has that seal ever left your possession from the
time it was lirst given in your possession until
now ? No, sir.
Wm. F. Smith, a witness for the prosecution,
having been first duly sworn, testified as follows :
Examined by the Counsel for the prosecution:
What is your name ? William F. Smith. What
is your occupation ? Assistant Surgeon In the
United States Army. Are you familliar with gun
shot wounds ? Yes, sir. Can you give any opin-
ion as to whether a conical ball or round ball shot
from a pistol of the same calibre, under the same
circumstances identical, as to which one of these
would make the larger wound in passing through
the skull? In that case the conical ball would
make a larger aperture. Would the aperture be
regular or irregular in its form ? Generally
speaking a conical ball would make an irregular
aperture. And make a larger one than a round
ball from a pistol of the same calibre under the
same circumstances identical? Yes, sir. But
suppose you vary from these circumstances ; that
is diminish the load; increase the load; increase
the distance, could you give any opinion in that
case? There could be given no positive opinion
in that case. The opinion is a very general one ?
Yes, sir. And subject to an immense number of
exceptions? Yes, sir. Supposing a bullet to have
passed through the skull and entered the brain of a
man to have Killed him and to have remained in the
brain for four or six months, is there a chemical
substance in the brain that would act upon the
bullet? Yes, sir, more than one. What are they?
The principle ingredient would be sulphur which
in the process of decomposition would give rise
to sulphuretted hydrogen and would act on the
bullet, also the phosphorous in the brain would
give rise to phosphoretted hydrogen which would
act in a very similar way. In acting upon the
bullet would it diminish its weight ? Yes, sir, it
would be diffused through the whole brain after
a time Suppose the length of time were from
February to July, in that length of time would it
be diminished in weight perceptibly? Yes, sir.
A portion of the substance of the bullet would be
lost? Yes, sir. And the bullet would weigh less
the instant when it was removed from the brain
after that length of time than it would at the time
it entered the brain ? Yes, sir. Are you skillful
in the use of the ordinary scales used in measur-
ing medicine ? Yes, sir. Will you weigh this
bullet before the Court and pronounce what the
weight is ? I will do so.
Witness pronounces the weight of the bullet to
be between 172 and 173 grains, nearer 172 grains,
according to the scales used in the Court.
Cross examination by the Counsel for the ac-
cused:
Doctor Smith, in looking at that ball which has
been shown you, and from what you have stated
to be the action of chemical substances in the
brain and head, could you give an opinion as to
the probable diminution, upon a mass of lead of
that, size, lodged in the brain, say from the month
of February to the month of July ? I could not
give you any thing but a mere opinion which
would beonlyapproximate in its results. If you
have an opinion on the subject give it ? I should
judge that the bullet would lose in weight from
live to ten grains, id that time, I judge that from
the amount of sulphur and other decomposing
influences in the brain. Would the effect of
these chemical agencies cease as soon as the
bullet was removed from the brain, or would
it continue on ? It would cease at once. As
soon as the bullet was removed from the brain ?
Yes, sir. So it would not loose any of its weight
after the time of its being extracted from the
brain? No, sir. If there be thirty three bullets
to the pound avoirdupois weight, what would one
of them weigh in grains, apothecary's weight, you
can take your pencil, it'you please,and figure it out?
The Counsel for the prosecution said he thought
the Court could make its own calculations.
The Counsel for the accused said he only asked
the Doctor in order that it might go down in the
records in legal form. The calculations are made
at two hundred and twelve grains and four thir-
ty-thirds of a grain of thirty-three bullets to the
pound, and one hundred and fifty-five and five-
sixths grains of forty-eight balls to the pound.
Cross-examination resumed:
I believe you said you were familiar with gun-
shot wounds ? Yes, sir. Could you state wheth-
er a bullet fired against the skull and penetrating
the skull, would have lost any of its weight by
friction in passing into the skull from the outer
to the inner surface ? Yes, sir, but the amount
would be very small indeed. About what per
centage could you say ? I could not say, just
enough to leave a mark and nothing more. It
would leave a mark of lead upon the orifice?
Yes, sir, and even this would only occur when it
makes an almost perfectly clean cut. Supposing
a bullet fired against the skull making almost a
perfectly clean cuf—then could you say what
would be about the per centage of loss in weight
of the bullet? No, sir, I could not say. But
there is always some loss when it makes a clean
cut ?. I could not say always, for I never made
the subject one of special study, but I have fre-
quently noticed slight marks of lead on gunshot
wounds, not only in the skull but in other bones?
The amount would be something like a mark of
a lead pencil very trifling indeed. You could not
undertake to say in a bullet of this size, how
much in grains, or what per centage of any size?
I could not. Suppose after the bullet has passed
through one side of the skull, it should strike
against the opposite wall of the skull, would
there be any loss by that striking? It is possi-
ble there might be. Would the chemical sub-
stances in the brain act more rapidly upon a mass
of lead round and smooth, or upon a mass of lead
jagged and irregular as this which is here ? It
would act more rapidly on the irregular mass
for the reason that the irregular ball would ex-
pose a greater surface ? Then when you speak
of the probable loss which would be produced by
the action of those chemical substances that you
speak of, did you speak with reference to a round
bullet with a smooth surface, or with reference to
a mass of lead, such as you have weighed in the
scales to-day ? The mass that I had in my mind
was the one I had in my hand, and I only wish
my answer to be taken in a very general way.
"Re-direct examination by the Counsel for the
accused.
You are accustomed to the use of these scales ?
Yes, sir. There are a good many of them made
I suppose? Yes, sir. Are they ever made 60
imperfectly as to make a difference of ten, fifteen
or twenty grains in weight ? I have never seen
any so imperfect as that, the very poorest kind
ought not to make a difference of more than two
grains. Is there a possibility of making an error
of fifteen or twenty grains with any scales, in or-
dinary use by apothecaries ? I never saw any
such a difference, the scales would be useless
where the error would be so great as that.
CONVENED AT RALEIGIT, NORTH CAROLINA.
803
The J udge Advocate I propose to offer, in
evidence, the Counsel for the accused not object-
ing, a circular issued by the "Colt's patent fire
arm's manufacturing Company," setting forth
the styles, sizes, calibers, weights of bullets,
number of bullets to the pound, of the pistols and
rifles, manufactured by them.
Also a circular issued by " Remington & Sons "
manufacturers of Are arms, setting forth their
Btyles of pistols, calibers, weights of bullets and
number of bullets to the pound ; to assist the
Court, to a conclusion, in reference to the
weights of different bullets.
The Goverment hereby closes the case for the
prosecution.
The Counsel for the accused announced that
they would be prepared to commence the argu-
ment to-morrow, whereupon on motion the Com-
mission adjourned to meet on Wednesday Sep-
tember, 11th, at 10 o'clock A. M.
Raleigh, N. C., Sept. 11th, 1867,10 A. M.
The Commission met pursuant to adjournment.
Present: all the members of the Commission,
the Judge Advocate Counsel for the prosecution,
all the accused and their Counsel.
The reading of the testimony taken yesterday,
was waived, there being no objection thereto.
Yesterday's proceedings were then read and
approved.
The Judge Advocated then addressed the Court
as follows:
May it please the Court:—The murder
here charged and specified, and the acts al-
leged to have been committed in pursuance
thereof and with the intent laid, constitute a
crime of the highest magnitude, whether
the prisoners at the bar are guilty of this
murder and the acts alleged to have been
done, in pursuance thereof, is a question, the
determination of which rests solely with this
Court, and in passing upon which this Court
are the sole judges of the law and the fact.
It is a matter of great moment to the peo-
pie of the whole country, as well as to the
people of this community and State, that the
prisoners at your bar be lawfully tried and
lawfully convicted or acquitted: the inter-
ests involved in the dread issue here joined,
are, in my opinion, of the highest character,
not only to the accused, but to the whole
people.
The crime charged and specified upon
your record, and proven by the testimony
you have so patiently listened to for nearly
two months, is not simply the crime of mur-
dering a human being; but it is the crime
of killing and murdering Archibald Beebee
on the eleventh day of February, eighteen
hundred and sixty-seven, while in the custo-
dy of the law officers of the county in which
he was and had been for sometime living.
It is murder aggravated by the fact that at
that time Archibald Beebee was in the cus-
tody and under the protection of the law
and its sworn officers. How inadequate that
protection proved against the violence of the
lawless men, then and there assembled and
combined, defying the Jaw and, its officers,
and determined upon compassing the death
of the young man Beebee— the evidence has
already clearly disclosed.
I will not dwell on. the shameless indiffer-
ence to the commission of great crimes in
their immediate presence, exhibited by more
than a dozen of these same sworn officers of
the law, or the shamelessness, with which
they have testified before this honorable
Court to their own turpitude.
To the charge and specification the defen-
dants have pleaded, first: that this Court has
no jurisdiction in the premises; and second,
not guilty. As the Commission has already
overruled the plea to the jurisdiction, I shall
pass it by with but brief comment.
The civil courts, say the Counsel, are open
in the County of Cumberland, where this
crime was committed, and have jurisdiction
in this case, which this Court has not. To
this I answer that if the civil courts are open,
it is but in form, that substantial justice can-
not and could not have been obtained in the
County of Cumberland, or any other county
in this State, in this case, So strong is the
feeling and prejudice in reference to this case
in that County that many of the witnesses
who have testified in this case, returned to
their homes fearing that their lives are not
safe from the vengeance of these conspira-
tors, so completely unmasked by this volu-
minous testimony given before this honora-
ble Court. Nor is this fear unnatural. No
one who has followed the history of this case
from the day on which this murder was com-
mitted and warning given that whoever
dared to tell, should fare the same fate—
should be murdered even as the man Beebeo
was murdered—who has seen a felony like
this commuted in the midst of a crowd of
at least one hundred and fifty men, in the
centre cf a populous and busy town, and
that for months no white man could bo
found who knew anything about it—it isnofc
surprising, I say, that this fear should be felt
by those who had given testimony in this
case. The learned Counsel, who have so
ably defended the prisoners at your bar,
have not attempted to question or deny that
this is a legally constituted Court—they con-
tent themselves with denying its jurisdiction
in this particular case. A brief glance at the
act of Congress entitled " an act to provide
for the more efficient government of the rebel
States," (passed over the President's veto
March 2nd, 1867,) will speedily satisfy the
gentlemen that their plea is baseless; that
this Court, the members of which arc officers
of the army of the United States, and by the
lawful order of the General commanding
this Military District, are required to perform
this duty, and that the General commanding
lawfully made the order creating this Court,
and authorized it as such Court to decide all
questions of law and fact arising in the trial
of this case, or any other he may see proper
304
PROCEEDINGS OP A MILITARY COMMISSION,
to send before it. I will read the preamble
and first lour sections of this bill:
" An Act to provide for the more efficient govern-
inent of the rebel States, (passed over the
President's veto, March 2d, 1867:)
Whekeas, no legal State governments or ade-
quate protection for life or property now exists
in the rebel States of Virginia, North-Carolina,
South-Carolina, Georgia, Alabama, Louisiana,
Florida, Texas, Mississippi and Arkansas, and
whereas,ifcis necessary that peace and good order
should be eniorced in said States until loyal and
republican State governments can be legally es-
tablished; therefore,
Be it enacted by the Senate and House of Bepre-
sentatives of the United States of America in Con-
press assembled, That said rebel States shall
be divided into military districts, and made sub-
ject to the military authority of the United States,
as hereinafter prescribed, and for that purpose
Virginia shall constitute the first district; North-
Carolina and South-Carolina the second district;
Georgia, Alabama and Florida the third district;
Mississippi and Arkansas the fourth district, and
Louisiana and Texas the fifth district.
Sec. 2. And be it further enacted, That it shall
be the duty of the President to assign to the com-
vnand of each of said distiicts an officer of the
army not below the rank of brigadier general,
and to detail a sufficient military force to enable
such officer to perform his duties and enforce
his authority within the district to which he is
assigned.
Sec. 3. And be it farther enacted, That it
shall be the duty of each officer assigned as afore-
said to protect all persons in their rights of per-
son and property, to suppress insurrection, dis-
order, and violence, and to punish or cause to be
punished all disturbers of the public peace and
criminals; and to this end he may allow local
civil tribunals to take jurisdiction of and try
offenders, or when in his judgment it may be
necessary for the trial of offenders, he shall have
power to organize military commissions or tri-
bunals for that purpose; and all interference
under color of State authority with the exer-
ei6e of military authority under this act shall be
null and void.
Sec. 4. And be it farther enacted, That all
persons put under military arrest by virtue ol
this act shall be tried witho'ut unnecessary delay ■
and no cruel or unusual punishment shall be in-
fiicted; and no sentence of any military com-
mission or tribunal hereby authorized, affecting
the life or liberty of any person, shall be execu-
ted until it is approved by the officer in command
of the district; and the laws and regulations for
the government of the army shall not be affected
by this act, except in so far as they may conflict
with its provisions ; Provided, That no sentence
of death under the provisions of this act shall be
carried into effect without the approval of the
President."
But it is needless to discuss a question al-
ready ruled upon by the Court, and one
upon which there can be so little doubt as
to the justice and legality of your decisions.
I will briefly state what we conceive to be
the question of law, and of fact upon which
your verdict in this case, is to be made.
The questions of law, are two; First:
What is the grade of this homicide, with
reference to the person who discharged the
pistol, the bullet from which pistol killed
Archibald Beebee; was the shooting man-
slaughter or murder ?
We contend that it was murder. Second :
What with reference to the defendants, Pow-
ers and Watkins ?—first, supposing them to
have been co-conspirators with the person
who actually discharged the pistol. Second:
In the event that no conspiracy or combina-
tion is actually established; in either case
we contend that their crime was murder.
To the first of these questions there can be
but one answer, the crime is clearly that of
murder, and I think that the same answer
will be given to the second question; for if
the combination be established it results
that whatever was said or done by either
of the parties thereto in the furtherance or
execution of the common design, is the de-
claration or act of all the parties thereto;
but even admitting the proof of combina-
tion defective, it will appear clearly to the
minds of this honorable Court, that the fact
that Powers and Watkins were engaged in
and attempting to perform an unlawful act,
even though they may not have contemplated
(as we think the evidence has shown they did
contemplate) the commission of this partic-
ular felony, yet if another comes into their
assistance, and commits the felony, they are
all alike guilty of the murder.
The questions of facts involved in this is-
sue are first, did the accused, or any two of
them conspire, confederate, or combine to-
gether in the commission of the murder as
charged? Second—did the defendant To-
lar, discharge the pistol which slew Archy
Beebee ? Third—did the accused or any
of them in pursuance of such combination,
or conspiracy, and with the intent alleged,
commit either or all of the acts charged ?
Fourth—Did the defendants Watkins and
Powers attack Archibald Beebee with the
intent to kill him, or to do him sersous bodi-
ly harm,—and did the defendant Tolar,
without previous concert, come into their as-
sistance and effect what they were contem-
plating, and attempting to do ?
To the first question, I think there can be
but one answer, for never was a conspiracy
or combination more clearly proven, than in
this case; nor is it possible to prove a con-
spiracy more clearly, unless one of the con-
spirators gives evidence against his fellow
conspirators.
The second question is answered by the
unqualified and direct testimony of witness-
es, corroborated by nearly the same number,
who although they did not see the defen-
dant Tolar, in the very act of discharging
the pistol, which killed Archy Beebee, did
see acts which tend to show that the pistol
was discharged by Wm. J. Tolar, and no one
else.
The third and fourth questions, like the
first and second, are answered in the affirma-
tive by the evidence; and that so clearly as
to leave no room for question or doubt.
^LKOXJMTEIVT
of
ED. GRAHAM HAYWOOD,
SPECIAL JUDGE ADVOCATE,
in reply to
The several arguments in defence of William J. Toljir, David Watkins tool T Stomas Powers,
charged with the murder of Archibald Bccbce, at Faycttcvillc, HortMte'oliua.
' i " '
May it please the Court: As tins m^st interesting'and ten r.vtant cause
lias already occupied so much time—and as the patience of this Court, so
courteously, and so laudably manifested, at every stage of this trial, must
now be nearly exhausted,—-I shall endeavor, in discharging vie duty incum-
bent noon me, to consume as little more time as may bh eootident vyith a
clear exposition of the principles of law, necessary to be understood, in order
that the Court may arrive at a jost arid legal decision.
The evidence in the case, however conflicting hi its. character, has been mi*
nutely read distinctly stated by the witnesses, and has been pre-outed with a
fullness of detail, and in accumulated masses, such as are not oh en So he obtain*
edin tile conduct of criminal prosecution; while the ingenionT and able com*
ments of the Counsel for the defence, upon the facts, and their eloquent and
elaborate discussion, aiid illustration of legal .principles invteved—as seen
from their point of view—give to me and to this Court the iVd! and comfort-
ingassurance that the law is not likely to be administered, with'undue se*
verety in reference to these defendants. ' •
Of the many honorable duties which are assigned to the members of the
legal profession, there are few higher and holier trusts, than that,''committed
to mjr brethren, who are engaged in this defence; with the lives, the liber-
ties and the reputations of their clients committed into their hands—they,
stand for, lo ! these many days, struggling in their behalf — battling with
sleepless vigilance for their lives—bound alike in honor and by iuejtination to
abate not one jot or tittle, of heart or hope till Death's pale flag daunts on the.
ramparts. This Court I am sure cannot but admire the efttete of intellect
and. eloquence which have been made by the Counsel for the prisoners. In
going—as they haye gone—to the very verge of their professional rights—in
endeavoring to fix the crime alleged in the charge and specification upon an-
other citizen, who is comparatively innocent,'they have, perhaps kept with-
in the strict line of their professional duty, from which they were unider no
obligation to depart; but this Court will' judge whether we vrili be equally
within the line of our own .duty, in sanctioning the charge te'reorder, which
they have attempted to establish against the witness Phillips, ana in sustain-,
ing their appeals ifi this behalf, which have been urged upon, as, with all
the exertions of strong minds forced into vigorous4 action by warm hearts
306
argument of e. g. haywood,
la them to make the attempt naturally grows out of their professional situa-
tion, but your position as a Court, and my position as representing the gov-
ernment in this prosecution, are wholly different.
"VVe are now arriving at the conclusion of the first of a series of causes,
which, from the novelty of the tribunal before which they are conducted,
from the importance of their principles, from the interest felt, by at least,
a portion of the community, in their results, and from the immense stake
which the defendants have depending upon their decision, are almost with-
out a precedent in the juridical history of this State.
In the very nature of things it was not to be expected but that such an
investigation—involving in it so much of personal interest and of sectional
prejudice—of political sentiments, and even of social feeling—should exhibit
the vehement excitement, so painfully manifested by many of the witnesses
throughout its progress. In none of these feelings do I myself—in none of
these feelings I am sure does this court participate. Our,duties are higher
and holier. We are the chosen ministers of a great and powerful govern-
ment, called upon to decide between that government and certain of her
subjects, who are said to have forfeited their lives by a violation of the law.
Our trust equally demands that the public law should be vindicated to the
lull extent that it has been infracted, and that no particle of the rights of
the accused, guarantied by existing laws, should be compromised in order
to accomplish that end. Our duty is to punish offenders, not to immolate
victims ; but it is also our duty to execute the public law, and not to search
after excuses for its violation.
The task before us is one requiring no common effort; but cool heads and
honest hearts have often achieved results much more difficult to be attained,
and at the same time, these constituents of impartial justice are here this
day imperatively demanded. Our chief difficulty arises from this, that we
have here had given to us in evidence, versions of the unhappy events cul-
minating in this homicide, coming from sources apparently equally trust-
worthy, seemingly irreconcilable with one another.
But .before entering more fully into the consideration of the merits of this
cause, the court, I am sure, will pardon me for a moment, under all the pecu-
liar circumstances in which I am placed, while I speak of myself and of my
connection with this prosecution; that I may say, once for all, that in the
performance of the professional duty imposed upon me by rpy position here,
the popular smile has for me no allurements, and the popular frown has no
terrors. The breath of the people at the best is but air, and that not often
wholesome. For what I have done in the prosecution of this cause—for
what I shall do in its progress—I make no apologies; I have no apologies
to make,. I invoke no sympathy; I thank God I need it not; but I stand
here to-day with the profound and proud conviction, that as a faithful, hon-
est, and honorable member of the great profession to which I belong, and in
the best interest, as I am well satisfied, of the common weal, I am daring
to do what I believe to be my duty, amid trials and temptations, which, to
•ay the least of it, are unusual in such cases, and which, I trust in God, for
the sake of the public justice and virtue of the country, are not to become
common; and I am willing to leave it to time and my manner of life to
consign to oblivion the carpjngs qf the envious and the calumnies of the
malignant.
I am doing my professional part to administer the law, under the only
government which now has the power to enforce any law, and to preserve
any order in North Carolina.
BPECIAA JUDGE ADVOCATE,
307
The worst possible government is better than anarchy > and in times of
«uch infinite difficulty that must be the best government, however little de»
girable in itself, which will most speedily restore peace and tranquility to
the land, and stop the wounds, which contending parties are daily inflicting
upon each other. Some one must be invested with power to enforce the
law and preserve general order, and come what will in the future, peace and
order and the restoration of law ought to be our first and most pressing ob-
jects. u Interest rei publicae ut sit finis litium."
It may be easy to misrepresent these views; to call them abject; to say
that they are prompted, if not by sordid hopes, at least by slavish minds: but
in the performance of the duty with which I am charged in this case, I deem
myself any thing but slavish to the prevailing temper of the day, and cannot
perceive that I am subjecting myself to any just reproach ; our people ought to.
remember that the most uncompromising assertors of the duty of submission
to the will of God, by yielding ready and cheerful obedience to the powers
that be which are ordained of Him, have often proved, no less, the sturdiest
champions of the rights of the people. There are some who know and feed,
how just a pride, how true a glory—may spring from the very meekness of
legitimate obedience.
And as for those, without this Court, who have been so good, as to criti-
cise my conduct, because I do my professional part, to see to it, that felons
shall not go " unwhipt of justice," and that criminals shall not escape the
just terror of the law: and who—judging me by a standard of virtue, which
seared consciences, and vicious practices have erected in their own bosoms—
have assigned to me base and sordid, and unworthy motives for what I do
they are entitled to my compassion and my contempt, and most richly are
they rewarded with them both. ' .
( And now, I return to what I have said before, that we have comparative-
ly few and easy legal problems to encounter, in coming to a finding in this
. case—and our chief difficulty arises from the fact, that we have had given to
us, in evidence, versions of the unhappy events which culminated in this
homicide, coming from sources, apparently equally trustworthy, seemingly
irreconcilable with one another.
To those familiar with judicial investigations, there is no novelty, in the
seeming inconsistency, and the apparently conflicting character of much of
the evidence which has been adduced. We are perpetually observing, that
witnesses, seemingly equally honest, describing transactions occurring in large
tumultuous and highly excited assemblies, are in some of their statements,
respecting even prominent facts, in direct collision. These discrepancies may
arise from various causes, and do not necessarily, nor even probably,,
imply wilfull and corrupt perjury upon the part of any one. One man, from
his immediate contiguity to the scene of the occurrences lie describes, and
from his attention being particularly directed to them—from his nervous or-
ganization being sound and cool in the midst of danger and excitement, and
from the natural superiority of his perceptive- faculties—from his imagina-
tion being healthy, and his having no particular personal interests, sympathy
or prejudice, in the subject matter of the investigation—may truly detail ao-
tual events of instantaneous occurrence, which another of equal integrity and
seemingly with the same means of knowledge, but, in reality less favorable
circumstanced, declares he has not noticed, and which he may, even honest-
ly, deny to have existed. The jurist familiar with the nature, and course of
these disturbing influences, makes a just allowance for them; and endea-
vors to reconcile such conflicting statements. The law requires, that those-
308
ARGUMENT OF E. G. HAYWOOD,
engaged in investigating facts, should reconcile all the apparently conflict-
ing testimony, if it be reasonably possible, so to do, before imputing wilfull
and corrupt perjury to any one, as an easier mode of solving the problem.
Accordingly in cases of conflicting evidence, the first step in the progress of
inquiry must naturally, and obviously be—to ascertain whether the appar-
erit inconsistencies and incongruities which such evidence presents are real—
whether the evidence cannot, without violence or constraint, all be recon-
cilecl. And in applying this principle, two well settled rules are to be oh-
served.
First. It is to be noted that a great deal of the apparent discrepancy, ob-
servable in testimony, arises from omission ; from a fact or circumstance—
which is indeed noticed at the time of its occurrence or existence by several
witnesses,—being narrated in evidence only by one, or a few witnesses; while
some other fact or .circumstance, omitted by the witness, or witnesses who
stated the first fact or ^circumstance, is narrated in evidence by the depo-
nents who omit the first. Now, omission in reality creates no discrepancy,
and is, at all times, a very uncertain ground of objection to the veracity of
a witness. We perceive it not only in the comparison of the evidence of
different witnesses, but often even in the same witness, when compared with
himself. There are a great many particulars, and some of them of import-
ance, which an honest witness may set forth on one occasion of giving his
testimony, and leave out entirely on a.second occasion. It is never safe to
conclude that evidence is hopelessly inconsistent and irreconcilable, because
some witnesses have merely failed to state' facts and circumstances, de-
posed to by others; but such facts and circumstances—coeteris paribus—
must be accepted as proved.
There is a marked illustration of this principle, to be gathered from a com-
parison of the several accounts of the different appearances of our Lord and
Saviour, to his disciples, after his resurrection, contained in the New Tes-
tament, as narrated in Matthew, chap, xxvii, verses 16 to 20 inclusive—Mark,
chap, xvi, verses 12 to 14 inclusive—Luke, chap, xxiv, verses 13 and 36—
John, chap, xx, verses 19 to 29 inclusive, and chap, xxi, verse 1.
Thus, St. Matthew says, that while the eleven disciples were on a moun-
tain in Galilee, where Jesus had appointed them, he appeared unto them ;
and this is the only appearance of our Saviour, after his resurrection, which
St. Matthew records. St. Mark speaks of our Saviour as having appeared
unto two of them as they walked and went into the country, and of a sec-
ond appearance unto the eleven, as they sat at meat, which last, is evidently
.not the same appearance mentioned by St. Matthew, as having occurred up-
oq. Mount Tabor, in Galilee. St. Luke also speaks in verse 13, chapter
xxiv, of his appearance to two of the disciples on the day of his resurrec-
tion, as they were walking to the village called Emmaus,: which was from
Jerusalem, about three score furlongs ; he also states, in verse 33, that those
two.disciples rose up the same hour and returned to Jerusalem, and -"found
the eleven gathered together and them that were with them," and while
they were narrating what had occurred "Jesus himself stood in the midst
of them." St.. John, at verse 19 of chap, xx, says: "Then the same dav:
(the day of the resurrection) at evening, being the first day of the week,
when the doors were shut where the disciples were assembled, for fear of
the Jews, came Jesus and stood in the midstand again at verse 26, the
game narrator states that "after eight days again his disciples were within
and Thomas.with them, then came Jesus—the doors being shut—and stood
indthe midst.". And in the first verse of chap, xxi, of this gospel, it is sta-
SPECIAL JUDGE ADVOCATE.
509
ted that "after these things Jesus showed himself again to the disciples of
the sea of Tiberias."
Now, here, if the Court please, are four honest men under the inspiration
of the Holy Spirit—partially—at least—who severally undertake to narrate
the evidence, to establish perhaps, the most important event, (the resurrec-
tion ot Christ,) in the history of the most important man—who was at once
man and God—who ever lived upon the face of the earth. The fact of His
resurrection wTas the seal of Ilis Commission—it was the crowning miracle of
His life—it was the test of Ilis divinity, tor which the blaspheming Jews had
asked, as He hung upon the Cross—when they bade Him come down from
the Cross, and they would believe that He was the Son of God. And yet,
if the Court will take the trouble to investigate the matters contained in the
chapters to which I have called their attention—comparing the gospels of
St. Matthew, St. Mark, St. Luke and St. John—they will find, that all the
Evangelists give different accounts of the appearances of our Saviour after
his resurrection, which accounts it is almost impossible to reconcile with one
another; and this apparent variance can be accounted for, only upon the
supposition of important omissions by one Evangelist or another.
The next rule under-this sub-division is, that there is an important distinc-
tion between positive and negative testimony, and in cases where one is used
for the purpose of repelling the other—unless the contrary manifestly ap-
pears—the presumption, in favor of human veracity shall operate to support
the affirmative testimony. (1 Starkie on evidence p. 517.)
The application of this rule supposes that the positive may be reconciled
with the negative without violence or constraint, and that the negative may
be accounted for on the ground of either inattention, inadvertence, error,
mistake, or defect of memory, in the person rendering it. If, for instance,
two persons should remain in the same room for the same period of time, and
one of them should swear, that during that time he heard a clock in the room
strike the hour, and the other should swear, he did not hear the clock strike,
it is very possible that i\iafact may be itrue, and yet each witness may swear
truly. It is not only possible, but probable, that the latter witness, though
in the same room, through inattention, might.be unconscious of the fact, or,
being conscious of it at the time, that the impression of it. had afterwards fa-
ded from his memory. It follows therefore, as we have first stated—and by
way of corollary to the last proposition—that in such cases, unless the con-
trary manifestly appears, the'presumption, in favor of human veracity, shall
operate to support the affirmative testimony.
But, if the different statements, upon examination, be found irreconcilable,
it becomes an important duty, by careful investigation and comparison, rto
reject what is vicious; and, in so doing to distinguish between the miscon-
ceptions of an innocent witness, which cannot affect his general credibility,
and wilful and corrupt misrepresentations which may destroy his credit alto-
gether. . The presumption of reason, as well as of law, in favor of innocence,
will in the first instance, attribute a variance in testimony to innocent mis-
conception, rather than to wilful and corrupt misrepresentation.
, And it is here to be observed, that partial variances, in the testimony of
different witnesses, on minute and collateral points—although .they fre-
quently afford the opposing advocate a topic for copious observation—are
really of little importance, unless they, be of too striking and prominent a
nature to be ascribed to mere inadvertence, inattention, or defect of memory.
It so rarely happens that witnesses of the same transaction perfectly and
entirely agree on all points connected with it; that an entire and complete
310
ARGUMENT OF E. G. HAYWOOD,
coincidence in every particular, so far from strengthening their credit, not
unfrequently engenders a suspicion of practice and concert. (1 Starkie on
Evidence, pages 468, 469.)
And admitting real inconsistencies and incongruities to exist in a mass of
testimony—even upon important collateral points—I know of no more rash
. and unphilosophical conduct of the understanding, than to reject the sub-
stance of a narrative, by reason of some diversity in the circumstances with
which it is related. The usual character of all human testimony, which is
reliable, is substantial truth and coincidence, under circumstancial variety.
This is what the daily experience of courts of justice teaches. When ac-
counts of a transaction come from the mouths of different witnesses, it is
seldom, indeed, that it is not possible to pick out real inconsistencies be-
tween them. Numerous, and sometimes important, variations present them-
selves; not seldom, also, absolute and final contradictions ; but neither the
one nor the other is sufficient to shake the credibility of the main fact, or to
fix upon the witnesses, who are otherwise unimpeached, the stigma of wilful
and corrupt misrepresentation.
The real question in such cases must always be, whether the points of va-
riance and discrepancy be of so striking and decisi've a nature, as to render
it impossible, or at least difficult, to attribute them to the ordinary sources
of inattention, inadvertence, incapacity, mistake, error, or want of memory
on the part of some one or more of the witnesses. As a just and satisfactory
finding, on the case now in hand, depends much, if not entirely, upon a ju-
dicious sifting, and discriminating analysis, of the evidence adduced, I shall
cite a few examples from -written histories, touching upon the same scenes
of action, to illustrate my meaning.
During the reign of the Emperor Caius Caligula at Rome, as cotemporary
history tells us, he ordered the Jews to place his statue in their temple at
Jerusalem. The Jewish nation sent an embassy from Alexandria to the
Emperor, to protest against this sacrilige, and deprecate the execution of his
order. Philo places the sending of this embassy in harvest; Josephus in
teed time/ both were cotemporary writers. Philo says it consisted of five
Jews at least / Josephus says it was composed of Jews and Gentiles—tares
of each But what reasonable man is led by this direct and positive incon-
aistency, to doubt, whether such an embassy was sent at all, or whether such
an order was ever made by Caius; or, finally, to reject the whole narrative
of cither author, because in this particular, one of tnem must have been mis-
taken.
Take an instance from English history—and it exhibits many examples of
the same kind—say the execution of the Marquis of Argyle, in the reign of
Charles the Second. Lord Clarendon, in his history of the rebellion, relates—
that the Marquis was condemned to be hanged, that he was accordingly
hanged, on the very day of his condemnation which was Saturday. On the
contrary, Burnet, Wood row, Heath and Echard, concur in stating—that he
was condemned to be beheaded, that he was beheaded, not on the Saturday of
his condemnation, but on the Monday following. Are we to reject the sto-
ry of any one of these historians in toto, because in this instance, of the
death of the Marquis of Argyle, one of them must be in error—and is simp-
ticism to carry us so far, as to raise a question, because of these inconsisten-
cies, and incongruities in the evidence, whether the Marquis of Argyle wras
executed at all? Yet, this ought to be left in uncertainty, according to the
principles upon which the Counsel for the defence in the case, have attacked
the evidence for the prosecution. Take an instance from the New Testa-
SPECIAL JUDGE ADVOCATE.
311
merit again—I presume, that in this enlightened age, and in a christian coun-
try, it cannot be denied, that the birth, life, death and resurrection of our
Lord Jesus Christ, are the most important events in the history of the world.
X shall assume—and who can question it ?—that th& doctrine of the atone-
ment is the very centre—the Omphalos—of the whole system of the Christian
Religion; and the fact of the crucifixion, with all its surroundings, as evi-
dencing that doctrine, is the most important event recorded in the Holy Cos-
pels. It cannot be doubted, that the Evangelists, who give the history of
this important event, were scrupulously exact, strictly conscientious, and ful-
ly aware of the magnitude of the event which they recorded, and of the high
duty which was imposed upon them, of stating every circumstance connec-
ted with the crucifixion, with the most rigid adherance to truth. It may
be unhesitatingly affirmed, that no form of attestation, however solemn, can
be invented, which will impress upon a witness before our Courts, a more
vivid sense of the obligation under which he lies, to tell the truth, the whole
truth, and nothing but the truth, than that which was recognized by the
Holy Evangelists, when they penned the Gospels, for the use and for the sal
vation of all mankind. Two of the Evangelists were eye-witnesses of the
facts which they record; and all of them were familiar with the details, of
those facts. That they were selected for the performance of this duty, in
the early ages of the Christian church:—when inspiration was direct, and
miracles not usual—is the best evidence of tlieir fitness and capacity for the
task. We have, then, four capable men; to whom every opportunity has
been afforded to know the truth ; entirely conscientious; under the strongest
possible inducement to tell the truth; with a full sense of their obligations,
and of the importance of that truth ; whose duty it has become to relate the
most important event in the world's history, with circumstantial detail—that
Is to say, the crucifixion of Christ; for the benefit of all .mankind; and yet,
discrepancies, incongruities, and irreconcilable differences, of the same char-
acter as those which are exhibited in the evidence for the prosecution, addu-
ced in this cause, and which have been urged by the Counsel for the defence,
as a reason for discrediting the whole of a witnesses testimony, are to be
found in the narratives of our Saviour's crucifixion, contained in the four
Gospels of St. Matthew, St. Mark, St. Luke, and St. John. For example—
take the time of the crucifixion ; that is', to say, the hour of the day. It is
given differently by the four Evangelists, as will be seen by reference to John
xix. chapter, 14th verse, in which is placed, at the sixth hour, or twelve
o'clock: Mark xv. chapter, 25th verse, in which it is said to have taken
at the third hour, that is, nine o'clock. In Matthew xxvii. chapter, verses
37 to 45 inclusive;—it is not stated at what hour the crucifixion occurred,
but the supernatural darkness connected and associated with it, is spoken of
as having come upon the whole earth at the sixth hour, that is twelve o'clock ;
and according to the narrative the crucifixion must have taken place previ-
ous to that time. Luke xxiii. chapter, verses 33. to 44 inclusive, gives
substantially the same account of this matter that St. Matthew does.
So, note in this case, that, the old man, Calvin Hunter, one of the witnes-
ses for the prosecution, was in doubt whether the killing of Beebee occurred
in the morning Or in the afternoon. This uncertainty may not be used in
the defense for the purpose of assailing his integrity, or showing that he has
been guilty of perjury • but I am arguing to show that it ought not even to
diminish the weight of his testimony as to the main fact; that such a cir-
eumstance as this, ought to have no weight whatever attached to it, as di-
minishing the credit of a witness because of any incapacity which it demon-
312 ARGUMENT OF E, G. HAYWOOD,
1
strates • it cannot touch his integrity, for, as-1 have shown by various illns-
trations—iiudnding one from the Holy Evangelists themselves—variances of
this character, will occur, as long as men have imperfect faculties, and these
too, in important particulars.
So also with regard to the superscription which was written over our bles-
sed Lord's head, when he was nailed to the cross. The Evangelists all dif-
fer from one another as to the precise wording of it. It was a striking cir-
cumstance connected with\the crucifixion. It was evidently one which at-
tracted attention ; for it was written in three different languages, Hebrew,
Greek, and Latin ; and, we are.told, the Jews requested of Pilate that its
terms might be changed. It is then calculated to strike us with some aston-
ishment, that the Evangelists differ in their accounts of so marked and promi-
nent a circumstance connected with so great an event; and yet, a compari-
son of their different narratives will show, that the statement of the wording
of this superscription, as given by each one of the Evangelists, differs from
,that given by each and all of the others. Saint Mathew says it was written
" This is Jesus, the King of the Jews," (chap, xxvii verse 37). Saint Mark
says it was, " The King of the Jews" (chap, xv verse 20). Saint Luke states
that it was written, " This is the king of the Jews," (chap, xviii verse 38).
'And Saint John says it was written, "Jesus of Kazareth, the King of the
Jews," (chap, xix verse 19).
Are we, on account of these and like discrepancies, to reject all of the
Gospels, on the whole of aiiy one of them ; or to question whether there was
any crucifixion of our -Saviour at all; or whether'any superscription was
written over Ids head ? We must do all these things if we follow the course
,of reasoning followed-by the Counsel for the defence, to discredit Armstrong
and some of the other witnesses for the prosecution.' If each of the witnesses
in this case, introduced on the part of the Government, in stating the words
used by 'Tolar, or any of the other defendants at the time of the homicide, had
stated them differently, the Counsel for the prisoners "would—following their
course of argument—have denounced the "witnesses as perjured ; or, if,not per-
jured, they would, at least have insisted, that their memories were not to be
relied on, as to the main fact of the shooting ; but the existence of these min-
ute inconsistencies, and actual conflicts upon collateral points is, in reality,
the very best evidence, tliat there has been, on the part of the witnesses for
.the prosecution, ho concert, or contrivance^ or combination in preparing their
testimony. , i ' .
To recapitulate'then; in weighing the testimony, the Court mnst recon-
cile all the evidence, if it be, practicable and possible so to'do, without vio
lenee or constraint; and—with this end in view—they mnst carefully consid-~
er, whether there is any actual inconsistency in the evidence—observing the
yules with reference to omissions, and the rules which apply to positive and
negative testimony, already laid down. Then,, the Court, if it finds in con-
grnities, rnu^t take another step, and ascertain where the inconsistencies are,
and'whether they arise from inadvertance, error or defect of memory on the
part of seme of tiie witnesses, or are to he attributed to wilful and corrupt
misrepresentation. But even if the Court should find inconsistencies—if
those inconsistencies arise on minute and collateral points, they can ,only he
used for the purpose of 'attacking the witness's integrity, "when attribiitable
to falsehood or prevarication on the part of the. witness, in whose evidence
they arise, and ought, not for the reasons already given—to be of any weight
in determining the ability of the witness to' state the fact with substantial
correctness.
special judge advocate,
<313
I come now to tlie third head of this branch of my subject. When the
variances in the testimony of different witnesses are not of so prominent and
striking a nature as to render it impossible, without violence and constraint,
to ascribe them to mere inattention, inadvertence, incapacit}', error, mis-
take, or defect of memory, the next step necessary is, to decide, to what <x-
tent and in what particulars the adverse evidence is irreconcilable, and then
to determine what part of the testimony is to be rejected as vicious, and
what part is to be accepted as constituting the true res gestae, upon which
the tribunal is to act. In other words, the tribunal engaged in investigating
the facts, must decide to what witnesses are to be attributed the inattention,
inadvertence, incapacity, error, mistake or defect of memory, which causes
the collision in the evidence ; and in estimating the probability of mistake
or error, as also ill deciding on which side the mistake or error lies—a coin-
parison must be made of the means and opportunities which the different
witnesses had for making observation, supposing them to be equally honest;
of the circumstances which were likely to excite their respective attentions;
of their respective reasons and motives for attending, even supposing them
to be honest; of the relative strength of their respective percepti ve faculties;
of their relative coolness in the midst of excitement and danger ; of their ye-
spective intellectual abilities, including strength of memory and powers of
recollection ; and special regard should also be paid to the relative indilfer-
ence of the conflicting witnesses to the point in question ; and the number
of the witnesses on each side, for even supposing them to be honest, it'is
more probable that one or a few should be mistaken than that many should be.
Now, I am about to broach a theory, which will somewhat startle iny
brethren on the other side, and which may, perhaps, on first view, also sur-
prise the Court. It is this: presuming the uneducated colored persons \yho
have testified in this cause, to be honest. I shall insist that it is probable
they have given a more correct version of its details of fact than the better
informed white witnesses have. I leave out of consideration altogether the
relative opportunities of each, set of witnesses for observation, and their re-
spective reasons for attending to what transpired, and, for the nonce, assume
these tests of credibility to be equal in white and black—educated and un-
educated persons ; and now—only regarding the relative strength of their
respective perceptive faculties; and comparing their several and respective
powers of recollection—and supposing them, as I have said, to be equally
honest—my theory is, that the uneducated man has quicker perception, and
greater power of recalling physical ideas, than the cultivated man. Men who
are in the habit of reflecting a great dealneglect the cultivation of their per-
ceptive faculties. Take an Indian—a savage—his perceptive faculties are
keen and active to an extraordinary degree—and so ascend the scale of cul-
tivation, and the. acuteness of the perceptive faculties diminishes as vou
ascend. Now, all man's knowledge is derived from one of three sources ;
either through his senses, or perceptive faculties; or it is intuitive,—if it
be admitted that we know anything by intuition ; or it arises from reflect-
ing on what is derived from the two other sources just named.
The perceptive faculties in the savage or in the brute beast are more acute
than in the civilized man; for, the force which civilized man expends on re-
flection, the uncultivated man, and the mere animal, infuses into the per-
ceptive faculties. So too the simplest operations of memory are more per-
feet in an uncultivated man, than in one of more culture and intelligence.
I say the simplest operations—for there is no part of this complex macliin-
ery that we call man, more curious and manifold in its various manifesta-
314
ARGUMENT OF E. G. HAYWOOD,
tions than memory. The simplest operations of it, depending upon that la^
of mental association which, for want of a better name, we call the law of
contiguity, are more perfect in uncultivated persons, than in those of culti.
vation and refinements. This may seem a digression, but I consider it h^.
portant in this case—the more important—because these negroes have been at-
tacked as natural liars; I consider it of importance that their testimony
Bhould have given to it the weight to which it is entitled, no more and no
less. In urging these views, I do not wish to be understood as making myself
their especial champion, or as claiming for them a general superiority to the
more cultivated and more intellectual race ; not at all. But, tor the purpose
of upholding justice and truth, it is important that their reliability in mat-
ters depending upon perception and recollection, should be established; and
I say, that their memories, wherq this particular law of mental association
which we call the law of contiguity applies, are stronger than those of cul-
tivated men. The memory consists of two parts—retention and recollection
It is the theory of many celebrated metaphysicians, that we never, absolute,
ly, forget anything: that there is a "store house of the mind"—as Lord
Bacon calls it—which safely holds every idea that has ever, at any time,
been the object of mental consciousness; and that every such idea, so held,
is potentially liable to be recalled at any moment. ¥e may set out with
the proposition, then, that the retentive part of the memory, or the power of
retention, is the same in all men, but the power of recollection varies greatly.
This power of recollection depends upon certain laws. We have not gone
very far in their investigation, but we call them the laws of mental associa-
tion, suggestion or reproduction; and the simplest of these laws is what we
call the law of contiguity. By this we mean, that whenever two objects of
sense, or two ideas of any kind, have once been the subjects of mental con-
sciousness at the same moment, or in quick succession to each other, each
one of them ever after manifests a tendency to suggest or reproduce the
other. As, for instance, if a man were driving along the road and talking to
a friend sitting by him upon a particular subject, and he, at that moment,
noticed a peculiarly built farm house, or any other striking object of sense,
the probabilities are great, that if he, at another time, passes that farm house
and observes it, the same idea will be again brought before his mind which
was in it when he last saw it, and he will recollect, without effort, what he
was saying to his friend. That is what we mean by the law of contiguity.
We have a thousand illustrations of its operations in every-day life. You,
gentlemen of the court, who are here for the purpose of administering civil
law, and of endeavoring to do justice among petty disputants, have, in your
daily experience, numberless instances of it—I do not doubt—as I have in my
own office. Every lawyer has. A man wall come to you who is without
education, and in his efforts to present his difficulty to you, will mention a
thousand circumstances that seem to have no sort of connection, with the
matter at issue. Why ? Because the moment anything associated with .the
subject in which he is interested is mentioned by him, his mind is filled with
everything that surrounded it at the time that he last saw it or considered
it—when it was last the subject of his mental consciousness. He cannot
from want of skill separate one part of the matter from the other, the im-
portant from the unimportant, the subject being recalled everything with
which it was associated is recalled also. A striking illustration of this pnn-
ciple occurs in Shakespeare—the great master of human nature—of the mind,
and of the heart. I allude to a scene in Henry IY, where Falstaff is about
going off to the wars, and is arrested by Constable Fang for a debt due Mrs.
Special judge advocate!
315
Quickly. It is somewhat ludicrous to be introduced on so sad an occasion
as this is, but as it aptly illustrates my meaning 1 recur to it. Falstaff is
arrested by Fang, to enforce a payment of his debt to Mrs. Quickly: he is
advised to pay it; and he forthwith goes aside with Dame Quickly to make
with her the best terms that he can. In asking the old lady " what he owes
her she remembers that he owes her himself—having tmce promised to
marry her; and no sooner has she recalled this promise of marriage, than
she goes on, almost without volition, to narrate every event which occurred
at the moment when this proposition was made. Here was a garrulous 61d
woman, tc whom this fact was recalled—"Falstaft once promised to marry
me,"—and instantly, every circumstance that surrounded her at the time
comes to her mind again You will better understand its application if I
give you the passage. Sir John asks the Dame, "What is the gross sum
that I owe thee ?" whereto she replies, " Marry, if thou wert an honest man,
thyself, and the money too. Thou didst swear to me—upon a parcel-gilt gob-
let—sitting in my Dolphin-chamber—at the round table, by a sea-coal fire—
on Wednesday in Wheeson-week—when the prince broke thy head for liking
his father to a singing man ot Windsor—thou didst swear to me then, as I
was washing thy wound, to marry me, and make me my lady thy wife.
Canst thou deny it ? Did not goodwife Keech, the butcher's wife, come in
then—and call me gossip Quickly?—coming in to borrow a mess of vinegar—
telling us she had a good dish of prawns—whereby thou didst desire to eat
some—whereby I told thee they were ill for a green wound. And didst not
thou, when she was gone down stairs, desire me to be no' more so familiar-
ity with such poor people, saying that ere long they should call me madam ?
And didst thou not kiss me, and bid me fetch thee thirty shillings ? I put
thee now to thy book-oath; deny it, if thou canst."
Now here is an illustration from the very greatest master of human na-
ture. The very moment the idea of Falstaffs promise of marriage is re-
called to her, every circumstance surrounding it, when it was first given to
her, is immediately brought before her mind. This will give the Court a
key to my meaning, when I say,—that—supposing these uneducated witnesses,
white or black, to be honest—if any remarkable facts—such, for instance, as
those given in evidence occurring at the Fayetteville market house—should
happen in their presence—put one of these facts in their minds, and the
whole train of circumstances will spring up in their memory, and be vividly
pictured there. This will not be the case, to the same extent, in educated
minds, whose powers of reflection are developed,and which are well stored with
ideas ; because of the number of ideas which have, at different times been in
them, and ot their complex associations; each idea having, at different times,
been in contiguity with several others, no one idea has, with them, the same
power of recalling others by the law of contiguity as it has with uneducated
persons, whose ideas are few and simple. The laws of mental association—
some of them—govern the operation of the memory in more educated persons;
but this particular law of mental' association—the simplest—the first funda-
mental law—the law of contiguity—by which one idea having once been as-
sociated in the mind with another, always manifests a tendency to recall it—
this law of contiguity, is more accurate in its operations in persons of little
education than in others.
Therefore, I say, that in considering the weight to be attached to the tes
timony of these negroes, or of any uneducated persons, some addition must be
made because of the acuteness of their perceptive faculties, and of their gieat
powers of recollecting material'ideas. I have no doubt that the Court has,.
316
ARGUMENT OF E. G. , HAYWOOD,
been struck with the minuteness an<} detail of the testimony given by some
of the witnesses in this cause, and perhaps, they may have considered it ut-
tcrly impossible, for any one to speak with so much minuteness upon any
matter not immediately in view ; but the Court must remember, that we
were examining just the class of persons to .whom old Dame Quickly be-
longed, and that, in them, the power of recalling events, depending on this
law of contiguity, is developed to a degree, ot which we of more training, can
hardly conceive. ^
And now, may it please the Court, there is another thing to which I wish,
in this connection, to call attention, and one which my brother, Battle, seemed
to think of very little importance, and that is, the comparison of the number
of witnesses on each side. I insist upon it that the comparative number ot
witnesses 011 each side is a very important test of truth. Hot that we are to
do as Irving's Dutch Governor did—in settling accounts—put one book in
,one side of the scale and the other book in the other, and decide by mere
weight; but supposing the witnesses to be lion est, there is a stronger proba-
bility that one or a few should be mistaken than that a number should. It is
more probable that ten persons should be mistaken than that twenty-five
should be, even supposing them all to be honest. The force of the multiplicity
of testimony, given by twenty-five men, is not simply the weight of tlietesti-
mony of one witness, multiplied twenty-five times to arrive at the weight
of the whole; but when you add the weight attached to the evidence of
each witness—all together,—you must also add to the sum, the probabil-
ity of the facts, deposed to by all, being true, arising from the improba-
bility of so many being mistaken—or conspiring to commit perjury.—
Thus as you multiply witnesses to a factor set of facts, the weight of'the
testimony, seems- to grow by a sort of geometrical progression, as you
increase the number of witnesses. When two witnesses testify to the
same fact, the probability of its truth is not necessarily doubled/ but an
additional probability of its truth arises, from the improbability of two be-
ing mistaken about the same thing, or concurring in a lie; a probability
which grows, and goes on, and on, increasing, until when you get alargenum-
ber of witnesses to the same facts—the degree of proof is so overwhelming,
that nothing can over-come it. The admission of these principles is the
great argument, at last, upon which Christianity rests. The establishment of
these principles furnished the only method in which Hume's argument against
Christianity was ever successfully met. His argument was—that it is more
probable that twelve men should lie, than that a miracle should be perform-
ed; that it contradicts experience for a dead man to be brought to life, but
does not contradict experience that twelve men should lie. And after mora-
lists had exhausted themselves, and perhaps not conclusively answered the
argument of Ilume—for very few were just such skilful masters, of fence.as
he,-—mathematicians went to work, and calculated the degree of probability,
arising from the concurrent testimony of so many witnesses ascertaining that,
where a large number of witnesses concur in their statements, the weight, of
the testimony of the whole depends upon a sort of geometrical progression—
eventuating in a degree of probability that is overwhelming—thus meeting,
at last, the argument against miracles, which had never been very successful-
ly encountered by Paley—or any other of the Moralists. The only possible
way of overturning the argument was by a mathematical demonstration of
its fallaciousness—a demonstration which established the same principle which
I am applying here; that by increasing' the number of witnesses to the same
fact or set of facts—a degree of probability of their truth, amounting almost to
'SPECIAL JUD&E ADVOCATE.
mathematical or metaphysical certainty is attained; a probability which is
to a great extent in dependant of the integrity and ability of the several wit-
nesses ; a probability resting upon the force of their concurrent testimony, and
not upon the characters ot the several witnsses; a probability which can
only be overturned by establishing that not one, but all of the concurring
witnesses are perjured—or mistaken ; since the only way of accounting for
the phenomenon of So many witnesses concurring in the same statement of fact,
is, either to suppose the fact true, or that the witnesses have all combined to
commit perjury.
I hope I have made myself understood by the Court upon these points. I
am endeavoring, as clearly and as succinctly as lean, to lay clown those
rules of evidence, those regulations, which ought to control this Court in the
investigation of facts : the first leading one being that they must reconcile
all the evidence, if they can do so without violence or constraint; the second
leading one being, that if they cannot reconcile it all, they must attribute
tlife inconsistencies to inadvertence, incapacity, inattention, error, mistake,
defect of memory, or some other human infirmity, if it be reasonably possi-
ble so to do ; and so attributing them to mistake and the like, it is no ground
for rejecting the whole of the testimony of a witness, that he has made some
errors apparent to the Court; and indeed that is no ground for doubting the
main facts of his testimony. And if going a step further, it becomes impor-
taut to decide, to which ones of the witnesses these inadvertencies, errors,
mistakes and the like, if they exist, are to be attributed, the Court must de-
cide that; and in deciding it, these different questions which I have sugges-
ted come up, to wit: first their relative opportunities for observation; second,
the respective character of the circumstances which attracted their attention;
third, their several reasons for attending ; 'fourth, the relative strength of
their perceptive faculties ; fifth, the relative strength' of their intellectual
powers, with their respective "physical organization, and finally the preju- „
dices of the several witnesses; and last of all, but not least, the number of
witnesses on one side or the other.
If in the discussion of the testimony the Court shall come to the conclu-
sion that collisions in the evidence exist, but that they are upon collateral
and irrelevant and minute particulars, and that the substance of all the evi-
dence can be reconciled, and the Court are satisfied, in addition to this, that
thfese collisions can be attributed to inattention, inadvertence, incapacity,
error, mistake or defect of memory, on the part of one witness or the other,
one class of witnesses or the other, it is hardly necessary to trouble them-
selves to go further, and decide to which class these errors and the like are
attributable. If the Court are satisfied that the whole of the substance of
the testimony is reconcilable, and that the witnesses are honest, it cannot be
nebessary for them to go on, and decide upon these minute and collateral
points, which 6f the witnesses were right, and which were "wrong.
13ut at last we may come to a state of things—a precipitate that we cannot
reduce any further. If we "find a condition of things where the testimony
of conflicting witnesses is irreconcilable, and the conflict is of such a char-
acter that it cannot be attributed to incapacity, inattention, error, mistake
or defect of memory—it becomes our painful and difficult task to decide to
which class of witnesses credit is due. That is unfortunately the state of
mind to which, as I believe, the Court must arrive in this case—they will
be'called upon to decide to which class of witnesses credit is due.
And here, it is to be remarked, that the fact that a witness has sworn
falsely, wilfully, and corruptly in one particular, goes, as was said by the
318
ARGUMENT OF E. G. HAYWOOD,
Counsel/or the defence,, to his credibility and not to his competency in other
matters. It is a maxim of the civil law—"falsum in uno,falsum in omnibus,"
a maxim which does not obtain in the common law ; where a man is de-
tected in wilful and corrupt perjury as to one particular, you are not to
throw all of his evidence aside, in cases of this character. At least such is
the rule in our ordinary Criminal Courts, and I will presume that the same
rules apply to this Military Court, although there may be reasons suggested
for the contrary view. If then you discover that a witness has sworn delib-
erately and wilfully and corruptly false as to one particular, it goes simply
to his credibility, and not to his competency; you are still to consider and
weigh the rest of his evidence in connection with all the circumstances, and
decide to what weight you think it entitled. It is not a rule of law that the
evidence of a witness who has made an intentional misstatement must be re-
jected altogether. The reasons for this are evident. The force of even di-
rect testimony can never amount to absolute mathematical or metaphysical
certainty. The force of direct testimony rests upon a presumption of law
—that a disinterested witness who delivers his testimony under the sanction
of an oath, and.under the peril of temporal inflictions due to perjury will
speak the truth. The effect of wilful and corrupt perjury in one particular
is, to repel this pjresumption of law, since it manifestly appears, that the wit-
ness in question, is capable of perjury. But a tribunal engaged in the in-
vestigation of facts is still to weigh his testimony, and to give to it the de-
gree of credit to which they may think, under the circumstances, is is enti-
tied ; and it is obvious that wilful corruption in one particular, cannot be
used to impeach the credit Of the same witness, as to evidence given by him
favorable to the adverse side. Say a witness for the defence, gives in evi-
dence some facts favorable to the prosecution, and the Court come to a con-
elusion that he is wilfully and corruptly false in some one other particular—
that is no reason for rejecting the portion of his testimony which is favor-
able to the prosecution. Such evidence is rather to be regarded as truth re-
luctantly admitted, and divulged only because it is not in the power of the
corrupt witness to conceal it.
It is to be observed also in considering corrupt testimony, that the rejec-
tion of the whole of the testimony of a corrupt witness, which is favorable
to the side introducing him, may not be the only consequence of his perjury.
If there be reason to suspect, from the circumstances, that his perjury is-
the result of subornation, contrivance or concert, it affords a reasonable
ground, in a doubtful case, for suspecting or even for rejecting the whole of
the testimony adduced by the same party.
I beg that the court will pardon my tediousness, and will follow the course
of my remarks.
I am endeavoring, before going into the examination of evidence, to la^jr
down these different rules for sifting testimony, which ought to regulate tins
tribunal, so that they may apply them with ease in the investigation of the
testimony. I know I am tedious. I regret that it is so. I know also that:
it is necessary to be.tedious, in order that you may do, and that I may do—
that we may all do our full duty to the government whose ministers we are,
and to the piisoners whose lives are in our hands.
To go on then : if in coming to a decision the Court are satisfied that one
witness or another, that one class of witnesses or the other, has been guilty
of deliberate and wilful and corrupt misrepresentation, either upon a mate-
rial point or upon a collateral and less material one, it becomes a matter of vi-
tal importance to discover where the perjury lies; and, in tracing this out, thero
8pecial jtjdge advocate.
319
»re a few general principles to be observed. The first one, in this investi-
gation, is to consider the relative integrity of the witnesses, as it is gathered
from their general character/ as it is gathered from their bias, interest, pre-
judice or passion towards the cause; as it is gathered from their bearing on
examination.
We are next to recur in this connection—to the number of witnesses on
loth sides. The Court will remember that in a former part of this address,
assuming the witnesses all to be honest, I stated that the number of witnesses
on. each side was an important consideration, because it was more probable
that one or a few should be mistaken than that many should be; but when
we are satisfied that perjury has been committed on one side or the other,
and the question arises whether one witness or many has sworn wilfully and
corruptly false, the preponderating number of witnesses is entitled to im-
mense weight, both as a rule of law and for reasons that are obvious—be-
cause it is more improbable that a number of witnesses should have con-
spjred to commit a fraud, by direct perjury, than that a few should; because
the difficulty of procuring a number of false witnesses is increased in pro-
portion to the number; and because, finally, the risk of detection is in-
creased in a far higher ratio, in proportion to the number of false witnesses.
The consistency of a witness's testimony with itself, and also its consis-
tency with the testimony of other witnesses, is a strong and most important
test, for deciding upon the integrity of witnesses. Where several witnesses
gave testimony to the same transaction, and concur in their statement of a
series of particular circumstances, and the order in which they occurred, such
coincidences exclude all apprehension of mere chance or accident, and can
be accounted for, by one only, of two suppositions ; either the testimony is
true, or the coincidences are the result of concert and conspiracy. If there-
fore the independency of the witnesses be proved, and the supposition of
{>revious conspiracy be disproved, or rendered highly improbable, by estab-
ishing the integrity of only a single one of the concurring witnesses, to the
same extent will the truth of their testimony, and the integrity of all the wit-
nesses, be established. The consistency of a witness's evidence with admit-
ted facts, is another test; and the consistency of the testimony of a witness
with collateral circumstances is still another; and the last and perhaps one
of the most important tests is the " a priori" probability of the witness*
story 5 by which I mean its continuity or want of confirmity with general
experience. A man easily credits a witness, who states that to have happen-
ed ; which he himself has known to happen under similar circumstances ; he
may still believe, although he should not have had actual experience of simi-
lar.facts; but where that is asserted, which is not only unapproved by com-
moil experience, but contrary to it, belief is slow and difficult.
I have thus endeavored to lay down for the guidance of the Court, the gen-
ergl rules and regulations, fixed by law, to govern the investigation of evi-
deijce. I have endeavored to state then as distinctly as I could, and toillua-
trate them from time to time—and have thus exhausted the first topic that I
proposed to myself, for discussion. The immense mass of testimony we are
compelled to sift, is my best apology, for the time thus consumed.
On motion, the Commission adjourned to meet on Saturday, September
14iji, at 10 A. M.
Raleigh, N. C., September 14th, 1867, 10 A. M.
The Commission met pursuant to adjournment.
Present: All the members of the Commission, the Judge Advocate, the.
Counsel for the prosecution, all the accused and their Counsel.
320
ARGUMENT OF E.' G. HAYWOOD,
pTlie reading of the addresses delivered yesterday was waived, there being
no objection thereto.
Yesterdayis proceedings were then read and approved.
Mr. Haywood continued his remarks as follows :
May it please the Court: Having, on yesterday, considered the rules of
evidence prescribed by law for regulating a tribunal engaged in the investiga-
tiOn of facts, the next important question, to be decided by this Court is what
law of homicide shall control them in the decision which they are called
upon to make.
And here, I am unexpectedly met on the threshold, by the objection rais-
ed by my brother, Phillips, in opening this discussion on .behalf of the de-
fence—that this Court has no jurisdiction whatever, of the particular of-
fence which they are engaged in trying. The Counsel for the defence, as
represented by my brother Phillips, are prepared to admit, that, if the crime
with which these defendants are charged, had been committed subsequent to
the passage of what is called the first reconstruction act, the jurisdiction ol
this Court over the subject matter would be clear and incontrovertible.
But, they say, 011 account of .the accidental circumstance that this liomi-
cide was perpetrated on the 11th of February, 1S67, several days before the
passage of the reconstruction acts, or any of them, those acts cannot have a
retrospective operation, and include within their provisions, an offence which
was committed previous to the passage of the first of the series of acts'.
1 desire to state the positions which were taken by the defence fairly and
as forcibly as I am able, even as strongly as they were stated by the learned
and able Counsel who addressed the Court in opening the defence.
T understood the admission to be full and frank, in the opening address
for the • prisoners,—for the purposes of this discussion, if for no other pur-
pose,—that Congress had the power, which it claimed, to enact that( crimes
shpuld be tried by courts, constituted as this Court is, if Congress saw fit so to
do ; but that as a matter of fact, the Congress had not so enacted. And that,
the proper construction of the reconstruction acts, does not include, among
cases which may be tried by Military Commission, an offence, committed
previous to the passage of any of the series of acts.
I understood another position to be taken by the Counsel for the defence :
that if the proper interpretation of the reconstruction acts does include
this particular crime, committed on the 11th day of February, 1867, among
thpse which may be tried by Military Commission, then the law so opera-
ting is an ex post facto law, or is in the nature of an ex post facto law,
because—and I wish to state the reason correctly, and I think I apprehend
it correctly—because, said Mr. Phillips, at the date when the offence was
committed these defendants had a right to be tried by a jury of their peers,
collected from the vicinage where the crime vyas perpetrated, and tlie effect
of ,'this law is, to deprive them of that right subsequently to the time when
the offence was committed.
^STow, if the Court pleases, I do not intend to enter fully into the discus-'
sion of this question of jurisdiction, for many reasons, and one or two of them
I shall state to the Court, In the early stages of this cause, a plea to the ju-
risdiction of the Commission was filed by the Counsel for the .defence. In.
its terms, it was broad enough to include the objection which is now
taken to 1 the jurisdiction of this Court; the plea was overruled by
the Commission; and if the Court' considered that plea at all, it is
prpper and, natural .to suppose, that fthey considered. all the objections
their jurisdiction, which arise in this case, And when in the progress of &
SPECIAL JTJDGE ADVOCATE.
321
cause a question of this character has once been raised and decided, I con-
sider such decision a final decision of the point for all the purposes of the
cause. Again, I understand from our declining to discuss that question of
jurisdiction, when it was first mooted, and submitting its decision to this
Court without argument, that it was considered both by the Court and all
the Counsel prosecuting and defending—that such a question was so abstruse
in its character, depending for its proper solution so entirely upon that pe-
culiar technical knowledge, which none but men who are educated to the
legal profession can be supposed or expected to have; that it was bet-
that tlie point should be raised and discussed and finally decided in the
review of this cause. Entertaining such views, I did not discuss this ques-
tion when the plea was properly before the Court; nor do I think it neces-
sary to discuss it fully now, for the same reasons. Moreover, when the plea
to the jurisdiction was disposed of—overruled—I considered all the points
raised by it decided, and therefore disposed of once for all.
But apart from all that, this is not an ordinary civil court; it is a Court of
soldiers of the army of the United States ; of officers who have superiors ; of
men who are subject to authority; to each of whom the superior officer says
" go, and he goeth, come, and he cometh." The science of the organization
of an army is obedience, and submission to superior authority ; and wheii the
superior authority under which this Court was constituted—I mean Gen.
Sickles, who was then commander of this department, and who would have
reviewed the decision of the Court, except that accidentally he has a succes-
sor—when he has once said that this case now before them is fit to be con-
sidered by this.Court, and sends it here for trial, I think that the Court will
have, and ought to have great hesitation in attempting to overrule a decision
already made by him.
And here, I note, it has been suggested by the prisoners'/ Counsel that the
terms of the order constituting this Court, are of such a character that they
do not necessarily imply endorsement by the Commander of the District,
of the propriety of this Court's investigating a case in which the crime was
committed on the 11th of February, 1807. It is urged that this particular
case is not nominally mentioned by General Sickles, in the order convening
the Court. But the members of this "Commission, familiar with the pro-
ceedings in such cases, know full well, that before any cause is brought be-
lore this Court, for trial, there is always an express order from Gen. Sickles di-
tecting it. So, although the particular order convening this Commission,
may not contain the express direction that this identical cause, naming it, is
to be tried before the Court; yet the knowledge which the Court officially
has, that this identical case has, by other express orders from the Command-
ing General, been referred to them for their decision, indicates \ to them
very plainly what the opinion of the Commanding officer of this Distifct is,
with reference to their jurisdiction of this crime, because of the time at
which it was committed. It must also be apparent to the Court, that it is
laborious, trifling, upon their part, to spend more time in the discussion of
the consideration and decision of a question of this sort.
Therefore, upon the merits of this question of jurisdiction, I have only
thus much to say: the two propositions upon which I understand my
brother Phillips' argument to rest, are, in my opinion, false in reason, in
logic, and in law. Far be it from me to cast any person A imputation upon
the gentlemen engaged in the defence, and I beg they will not so understand
me—it is sometimes difficult, if not impossible, in discussions, to avoid a/p-
fearing to reflect upon Council when no such thing is in reality intended.
322 argument of e. g. haywood,
But I mean the two propositions—philosophically speaking—are false assump.
tions. His first proposition is, that the act of Congress of the second of
March, 1867, commonly known as the first Reconstruction act, is ex post
facto in its character and operations, if it takes away from these defendants
a method of trial which was peculiarly their right at the time of the com-
mission of the offence.
How, if the Court pleases, such a law—a law changing the method of pros-
ecution after the crime is committed—is not ex post facto in its character and
operation. What constitutes an ex post facto law, has been long and well
settled by the Supreme Court of the United States.
The use of these terms in the Constitution of the United States, has been
well settled; and their full extension has been well settled; and the dis-
tinction which we draw is, that where the new law provides that the crime
already perpetrated shall be punished in the same way but by a die-
ferent method of prosecution, it may be a retrospective but it is not an
ex post facto law.
The celebrated and leading •case upon this subject decided as early as the
year 1798, is the case of Calder and wife, against Bull and wife, reported in
third Dallas, Reports Supreme Court of the United States, page 386; and
in that case Judge Chase pointed out the rules and distinctions upon this
subject very perspicuously, in a few lines. " I will state what laws are con-
sidered ex post faeto\&v?$, within the words and the intent of the prohibition
in the constitution. Every law that makes an action done before passing of
the law, and which was innocent when done, criminal, and punishes such an
action,"—that is an ex post facto law. If, for example, it were not criminal
now, to retail spirits by the small measure without a license, and the legis-
lature of the State, or the Congress of the United States should pass an act,
to punish men who had done such a thing previous to the passage of the act,
that would be an ex post facto law; that would be making an act which was-
innocent when done, criminal, and punishng it.
The second sort of ex post facto law, is—" every lawr that aggravates a
crime, and makes it greater than it was when committed." Crimes are di-
vided into treason, felonies and misdemeanors. The lowest grade of crime
is a misdemeanor. Hext in grade stand felonies ; and, above, all, stands the
offence of treason, which is sometimes classed with felonies, but is, more
properly speaking, sv/i generis. How, if an act were a misdemeanor at the
time of its commission, and by a law of Congress, or of a State legislature,
were made a felony, a higher grade of offence—after its commission, such
an act of Congress, or of the Legislature, would be an ex post facto law.
Third class—" every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime when committed ;"
as, for instance—suppose the offence of larceny to be punished, with thirty-
nine stripes—as I think it ought properly to be punished—with great respect
for this Court—by the law in existence at the time of the fact committed,
and, that a subsequent law were passed, making that past offence, punisha-
ble with forty, or fifty stripes ; such a law would be ex post facto in its
character and operation ; because, it imposed a greater punishment upon
the criminal act, that was its sanction, at the time of the commission of the
fact.
Fourth class—" every law that alters the legal rules of evidence, and re-
ceives less, or different testimony, than the law required at the time of the
commission of the offence, in order to convict the offender." For instance :
the overt act of treason, must, under existing law, be proved, by two wit-
SPECIAL JUDGE ADVOCATE.
323
nesses at least—so, perjury must be proved by two witnesses, or by one wit-
ness and confirmatory testimony—for tbe law conceives, that the oatli of one
man against the oath of another, makes a fair balance of testimony, and that
it is not just, to convict any man of perjury, upon the evidence of a single
other man.. If, then, a law were passed, after the act of treason, or of per-
jury, committed, allowing a man to be convicted of treason, upon the un-
supported evidence of a single witness, such a law would be ex post facto,
in its character and operation.
These are the classes of ex post facto laws; and the act of Congress under
consideration is not within any of these classes.
This law simply changes the tribunal by which the offence is to
be tried, without creating a new crime, without changing its grade,
without adding any new degree of punishment,, without allowing a
conviction therefor upon less testimony than was requisite at the
time of the commission of the act; and all laws subsequently en
acted, which simply change the method of prosecuting an offence—an offence
which is admitted to have been a crime at the time of its commission—al-
though they may be retrospective, are not ex. post factos.
" ifut," says my brother Phillips, " admitting that these distinctions and
rules just stated are those which generally obtain, yet where a man has a
right secured to him, by the Constitution, as the right of trial by jury, at the
time of the commission of the offence, and a law, passed subsequent to the;
commission of the offence, deprives him of that particular constitutional
right upon his trial, there I draw a new distinction. Such a law ,is an ex
post facto law, and a fifth class must be added to the four already defined."
This distinction rests, I must be permitted to say, upon my brother
Phillips' ipse dixit alone, bio authority can be found to sustain it. The
four classes of ex post facto laws are enumerated and defined here in this
derision to which I have referred—in the volume which I hold in my hand—-
and this decision does not stand alone. It has been—since it was pro-
liounced in 1798—the decision upon this subject in this country; and it has
been repeated and endorsed over and over again, not only by the Supreme
Conft of the United States, but, probably, by every Court of Appeals, in
every State of this Union, since the time it was first enunciated by Judge
Chase: and yet, until this trial of these defendants here before this Court,
in the year 1867, the subtle distinction which is attempted to be established
by my brother Phillips, and for which no authority is adduced, was never
drawn, and now, for the first time, it is suggested by brother Phillips, in
this case, as a means by which he proposes to show that, if the act of Con-
gress of the second of March, 1867, does actually intend that offences com-
mitted previous to its passage shall be punished under its provisions, by
Military Commissions, such act of Congress is ex post fado in its character-
and operation, and is therefore unconstitutional and void.
It is enough for me to say that here is the authority laying down what
particular characteristics make a law ex post facto. These definitions do
not embrace this new class of ex post facto laws; and the bare statement of
the proposition by my brother Phillips, whatever may be his legal attain-
merits, without any authority to sustain it, without any reasoning to sustain
it, has not, and ought not to have, so great weight with this Court as to in-
duce them to refuse to take jurisdiction of a cause which is regularly con-
stituted before them.
The next proposition laid down by the Counsel for the defence is—that
at the time the offence charged was committed, these defendants could not
324
ARGUMENT OR E. G. HAYWOOD,
have been tried by Military Commission therefor; but that they then had
a fight of trial by jnry, and by jury only.
blow, assuming as the basis of this argument, only that which my brother
Phillips assumes and admits—granting me that Congress has all the power
of legislation which it claims—that the reconstruction acts and other acts
in pari materia are constitutional—as the defence admits for the purposes
of this argument—I assert, without fear of contradiction, that on the lltli
of February, 1867, when the crime alleged in this charge and specification
"was committed, there were laws of Congress existing, directing that such
offences as this is might be tried by Military Commission.
I allude especially to the act of Congress which extended the organization
and the operations of the Freedman's Bureau. That act of Congress pro-
vides that where offences are committed by white persons against persons
of color—freedmen—persons who have lately been elevated to the rights of
free men—such offences may be tried and punished by Military Commission
if the President sees fit so to direct. I invite attention to the fourteenth
section, chapter two hundred, of the acts of 39th Congress, first session.
And I must be permitted to say, that I do not think the opening Counsel
for the defence has acted with his usual candor in legal discussions, in extract-
ing only a part of this section, and calling attention thereto, in his argument
before this Court; for if he had gone on, and read the whole of this very see-
tion, to which he referred, instead of citing only a part of it, that provision
would have appeared, to which I allude, in the words following:
" And whenever, in either of the said States or Districts, the ordinary
course of judicial proceedings has been interrupted by the rebellion ; and
' until the same shall.be fully restored: and until such State * "x' * * shall
'be duly represented in the Congress of the United States, the President
-shall, through the Commissioner and the officers of the Bureau, and under
such rules and regulations as the President, through the Secretary of War,
shall prescribe, extend military protection and have military jurisdiction
over all cases and questions concerning the free enjoyment of such immuni-
ties and rights &c."
It is a provision in this very act which was referred to by the Counsel for
the defence: and in the very section of the act that was eited—which gives
military jurisdiction, to preserve all the immunities and rights of, and to
punish all offences committed, with reference to this particular class of per-
sons. And it makes no difference, for the purpose of this argument, what
the particular mode of the organization of the Court directed by that act
was, for the very corner stone of the argument, built up by brother Phillips
was, that at the time the offence alleged in the charge and specification was
committed, these prisoners had a right to trial by jury, and could not under
any act of Congress then in force, have been tried by military Commission,
by a Court constituted under military authority as this one is.
It seems to me then, that the two assumptions made by the opening Coun-
*8el for the defence in his argument—the assumption first that the reconstruc-
tion acts are ex post facto laws, in a certain named event—and next,—that
the particular offence charged in this case could have been tried only by a
jury at the time of its commission,—having been overturned, the whole
superstructure of the argument falls.
" For the first reconstruction act declares in every letter, in every line, and
in every section—especially when interpreted in the light of subsequent
:aets in pari materia—that the military commandant of this district when
Appointed, shall have the power to sweep omay the State government alto-
SPECIAL JUDGE ADVOCATE.
325
gether, and to substitute a military government with military officers in the
executive, legislative and judicial offices of the State in its stead. And if
such is the case,—and it cannot be controverted, for it is the leading princi-
pie which runs through all the reconstruction acts, and appears everywhere
throughout them in burning letters, and if Congress had the power to estab-
lish these laws—which is admitted by the defence for the purposes of this
argument—who can suppose, for a moment, that Congress intended these
reconstruction acts, when the new military government was established, to
operate as a general jail delivery ? Who can suppose that Congress inten-
ded to leave all offences committed before the passage of the first reconstruc-
tion act in such a condition that no earthly power could try and punish
them ? Now look at it, if the Court please : here is/ an act, passed by the
Congress of the United States, which gives the military commandant of the
second district power to abolish the State government altogether, andsubsti-
tute in its place some other government, if he sees fit. Gen. Sickles has not
abolished the old State government altogether, but such government as now
exists in North Carolina, is a government established by Gen. Sickles under
the reconstruction acts—whose functionaries exercise the powers of govern-
ment, because the commandant of the district so wills it. In theory the old
government is entirely gone. Is it not most monstrous to conclude, that
Congress, in passing such an act, intended, provided a man had committed
an offence before the passage of that act, the new government should not have
the power to punish him at all ? Intended that, all criminals then in our
jails were to go free, and all past crimes remain unwhipped of justice? Yet,
such is the conclusion to which the argument for the defence necessarily
leads. And I shall say no more upon this question of jurisdiction. I only
introduced this passing notice of my brother Phillips' positions, for fear the
Court might conclude that they were unanswerable—and that the prosecu-
tion concurred in them—for I had considered the question as decided al«
ready, for all the purposes of this case; and further because the question in-
volved meets me at the very threshold of that part of my argument to which
I am now addressing myself, and to which I now recur—that is—what law
of homicide shall control this Court, in the decisions which they are called
upon to make f—a general question—not only applying to this case, but ap-
plying also in many of its particulars to the different cases which may
come before the Court.
May it please the Court:—The • law of homicide is not universally the
same in all the States. In many of the States of the Union the Common
Law of England upon this subject—which constitutes the basis of all our law
—has been altered by statutes, enacted by the local legislatures; and be-,,
fore coming to any conclusion at all in this case, the Court must decide up-
on the particular system of law which is to govern their decision.
It seems to me too plain for argument, for us to take any other ground
than that the law of homicide as it existed in North Carolina at the time of.
the passage of the first reconstruction act, and at the time of the commis-
sion of the crime charged, is the law of homicide which governs the conduct
of the Court. I invite the attention of the Court to the fact, that the offencG
with which these prisoners are charged, was committed before the passage of
the.first reconstruction act, and that principle of universal justice which
requires that a man be tried by the law, and subjected to the penalties which
existed at the time of the commission of the offence, applies to this case
with peculiar emphasis. It is also to be noted, that in all the orders issued
from the Headquarters of the Second Military District, it is assumed that,
ahghment of e. g. haywood,
all previous laws, existing under what are called the "provisional govern-
irients," continue in force, under the military government, unless modified
or repealed by orders, issuing from the said headquarters.
A reference to General Orders, No. 1, Headquarters Second Military Dis-
trict, dated Columbia, South Carolina, March 21st, 1867, section III. will
show the views of the late Commander of the District, upon the subject.
He there says : "The civil governments now existingjjin North Carolina and
in South Carolina are provisional only, and in all respects are subject to the
paramount authority of the United States, at any time to abolish, modify,
control, or supersede the same. Local laws or municipal regulations, not
inconsistent with the Constitution and laws of the United States, or the
Proclamations of the President, or with such regulations as are, or may be
prescribed in the Orders af the Commanding General, are hereby declared
to be in force ; and in conformity therewith civil officers are hereby author-
ized to continue the exercise of their particular functions, and will be re-
spected and obeyed by the inhabitants." It is evident from this section,
that the Commander of the Second Military District intended, when Milita-'
ry Commissions were organized, under the Reconstruction Acts, for inves-
tigating crimes, that the local law, existing at the time of the passage of the
acts, and continued in force by virtue of his orders, should regulate the de-
free and character of the crime, and the amount and nature of its sanction,
uch being the case, it becomes my duty to lay down to the Court what
particular ingredients constitute the crime of murder, according to the lex
loci of the State of North Carolina; and I must beg that this Court will re-
member, until a suggestion is made by me to the contrary, that in "what im-
mediately follows from this point, my remarks are particularly addressed to
the case of the defendant Tolar, and I propose to dispose of the law in its
application to his case, before going on to the consideration of those partic-
ular and peculiar principles, which apply to that form of the offense, which
is alleged against the other defendants.
The defendant Tolar is charged with the crime of murder. Now what
fmrticular constituents go to make up the crime of murder, according to the
aws of North Carolina % In this State we have adhered to the exact defi-
nition of the common law, adopted by the English Jurists—upon this sub-
ject. And murder is defined as follows— Whenever a person of sound mem-
ory and discretion, unlawfully hills any reasonable creature in being and in
the peace of the commonwealth, with malice prepense or aforethought, either
express or implied, it is murder, (Wharton on Homecide p. 33 : Wharton
Criminal Law vol. I. sec. 930). The distinguishing feature of this defini-
tion, it will at once be perceived, is malice ; and it is the only part of the
.definition, which lay-men can find the least difficulty in appreciating, orun-
derstanding. It is also to be observed, that the definition speaks of malice
aforethought, either express or implied. There is no difficulty in understan-
ding what the law means by malice aforethought, express; for the malice is
express when one person kills another, with a sedate, deliberate mind, and
formed design. Malace is a passion of the mind, or heart; and, of course,
its existance cannot be established by direct and positive evidence ; the eye
of God alone can see it; it is not cognizable by the senses. Its existence in
the heart, must be determined by the actions of the criminal,-—by the ex-
ternal manifestations which indicate its presence in the heart; and its ordi-
nary proof, must of necessity, be circumstantial. Such acts, for instance, as
lying in wait, antecedent menaces, former grudges and concerted schemes,
to do the party injured some bodily harm; indicate the existence of malice
special judge advocate.
327
in the heart, and all these indicate what the law means by express malice,
or malice aforethought, express.
But what is meant in our definition by malaee aforethought, implied, is
very different from what would be intended, by an ordinary layman, when
using the same expression. And the more proper mode of conveying the
technical meaning, which the law attaches to these technical terms, would,
perhaps, be, to alter the expression ; and instead of speaking of malice afore-
thought, implied, to call it malice in a legal sense ; for this term, at com-
nion law, is meant to include, not only special malevolence to the individual
slain; but a generally wicked,' depraved, and malignant spirit, a heart re-
gardless of social duty, and deliberately bent upon mischief. Some have
been led into mistakes, by not well considering, what the passion of malice
really is, in its popular acceptation. They have construed it to be a rancour
of the mind, lodged in the person killing, for some time before the commis-,
sion of the fact—which is a mistake—arrising, from the not well distinguish^
ing between hatred and malice. But even adopting its most correct popu-
lar signification, what is meant in law by malice aforethought implied, or
malice in a legal sense, differs from what we mean when we speak of malice,
in ordinary conversation. For all homicide is considered in law as malicious,.
however suddenly it may be committed, unless it be perpetrated, under such
circumstances, as either justify the act in law—or excuse it in law—or miti-
gate its character, by reason of accident, or the infirmities of human nature—
to a lower grade of felonious homicide, which we call manslaughter. And
therefore, when questions of malice arise, in cases of homicide, the matter
for consideration will be, whether the act were done with or without just and
legal cause or excuse y whether it were committed under such circumstances
of accident or of trial to human infirmity, as would lower the grade of the
offense, to what we call manslaughter. I therefore conceive, that it is advi-
sable—first—and chiefly—in order that the Court may understand what we
mean by malice aforethought implied—and also in order that this Court
may see with what leniency ihe law regards the frailties and imperfections
of human nature—and further yet, that the Commission may clearly and
distinctly understand, what circumstances go to make up the crime of mur-
der, to spend a short time, in a somewhat careful analysis of the law of ho-
micide—to set down what circumstances the law regards as a justification
for the killing of a human being; what circumstances the law regards as an ex-
cuse for the killing of a human being : and what circumstances of accident, or
of provocation, will prevail upon the law to reduce the degree of guilt from
that which attaches to murder to that which attaches to manslaughter.
Homicide is divided into three kinds—first—justifiable homicide; sec-
ond—excusable homecide; and third—felonious homecide—which, again,
is sub divided into—first—manslaughter, and second murder.
And first of justifiable homicide. It is to be noted that the law attaches
no shade of guilt whatever, or of blame, to justifiable homicide, and this is
the only grade of homicide as to which this proposition can be predicated.
This grade of homicide is of three kinds: First: Where the proper officer
executes a criminal in strict conformity with his sentence; for here it is
evident the act is committed without any criminal intent—-without any
evil intention, or desire on the part of its perpetrator, to do wrong—without
any inadvertance or negligence in the party killing. Second: Where an
officer of justice, in the legal exercise of a particular duty, kills a person who,
resists or prevents him from executing it. A homicide committed under such
circumstances, being for the advancement of public justice, receives the
328
ARGUMENT OF E. G. HAYWOOD,
commendation, rather than the censure, of the law. "Where an officer, in the
due execution of his office kills a person who assaults and resists him—where
a private person, or an officer, attempts to arrest a man, charged with felony,
and is resisted, and in the endeavor to take him, kills him. If a felon flee
from justice, and in the pursuit he should be killed, when he cannot other-
wise be taken; if there be a riot or a rebellious assembly, and the officers
or their assistants, dispersing the mob, kill, some of them, when the riot can-
not otherwise be suppressed ; if prisoners in jail or going to jail, assault or
resist the officers, while in the necessary discharge of their duty, and the of-
fleers or their aids, in repelling force by force, kill the party resisting.
Third. For the prevention of any atrocious crime attempted to be com-
mitted by force, such as murder, robbery, house-breaking in the night time,
rape, mayhem, or any other act of felony against the person ; but in such ca-
ses the attempt must be not merely suspected, but apparent and the danger
must be imminent, and the opposing force necessary to avoid the dan-
ger, or defeat the attempt. (See Wharton on Homicide, page 37, Greenleaf
on Evidence, vol. 3, page 107, sec. 115, Wharton's Criminal Law, vol. 1, sees.
936-7-8.)
The second division of this subject relates to excusible homicide—and ex-
cusible homicide is of two kinds:
First. Where a man doing a lawful act, without any intention of hurt,
by accident kills another; as for instance, where a man is hunting in a park
and unintentionally kills a person concealed therein, or if a man be at work
with a hatchet, and the head flies off, and kills a bystander. So if a pa-
rent is correcting his child or a master his apprentice or scholar, the bounds
of moderation not being exceeded, either in the manner, the instrument or
the quantity of punishment, and accidentally kills the child apprentice or
scholar. If an officer is punishing a criminal within the like bounds of
moderation, or within the limits of law, and in such case death ensues.
This is commonly called homicide per infortunium or by misadventure..
Second. Homicide, se defendo, or in self-defence, which exists, when one
is assaulted, upon a sudden affray, and in defence of his person, when cer-
tain and immediate suffering would be the consequence of waiting for the
assistance of the law, and there was no other probable means of escape, he
kills the assailant. To reduce homicide in self-defence, to this degree, it
must be shown that the slayer was closely pressed by the other party, and
retreated as far as he could conveniently or safely, with an honest intent to
avoid the violence of the assault. [Wharton on Homicide, p. 36. Green-
leaf on Evidence, vol. 3, p. 108, sec. 116. Wharton Grim. Law, vol. l,sec.
934-5.]
The third division of this subject relates to felonious homicide which is of
two kinds. First, Manslaughter—which is, the unlawful and felonious kill-
ing of another without malice, either express or implied; and second murder-
of which more hereafter. And manslaughter, again, is also of two kinds ;
first, voluntary manslaughter, which is the unlawful killing of another, with-
out express malice, in an accidental quarrel, or in heat of passion, as where
upon a sudden quarrel two persons engage in mutual combat, on equal terms,
and one kills the other: So, if any person be assaulted, with circumstances
of violence or gross indignity, and immediately, and in the heat of passion,
kills his aggressor, in consequence thereof—it is manslaughter upon legal
provocation / Again, when a man discovers another in the very act of adul-
tory with his wife, and immediately slays the adulterer, it is manslaughter
upon legal provocation.
SPECIAL JUDGE ADVOCATE.
329
Second—Involuntery manslaughter, is where a man, doing an unlawful
act, not amounting to a felony, by accident kills another. It differs from
homicide excusable by misadventure, or per infortunium, in this, that mis-
adventure always happens in the prosecution of a lawful \act, but this spe-
cies of manslaughter in the prosecution of an unlawful act, not felonious.
It is also to be noted where an involuntary killing happens, in consequence
of an unlawful act, it will be murder, if the act in the prosecution of which,
it occurs, he felonious, or if in its consequence, it naturally tends to bloodshed,
(Wharton on Homicide, p. 35 ; Wharton Criminal Law, vol. 1, sec. 931-2-3.
Greenlief on Evidence, vol 3. sections 119 to 126, inclusive.)
The second sort of felonious homicide is murder. How murder is as I have
said before—where a person of sound memory and discretion unlawfully
kills any reasonable creature in being, and in the peace of the commonwealth,
with malice aforethought, either express or implied. And we are now pre-
pared to show what is meant by malice aforethought, implied, or as we have
before termed it, " Malice in a legal sense." For,-- as we have seen—by
implications of the law—malice exists in every homicide, where the sur-
rounding circumstances neither justify it, nor excuse it, nor mitigate its
character to manslaughter, for any of the reasons set forth in the preceding
analysis. From all which, we may deduce, the following corollaries for fu-
ture use:
First, in every charge of murder—the fact of killing being proved against
the party charged, malice is presumed, and to reduce the offence below that
crime by circumstances of justification, of necessity, of excuse, of accident,
or of trial to human infirmity, the defendant must prove those circumstances
or they must necessarily arise out of the evidence adduced against him. Sec-
ond, it may be assumed as a general rule that all homicide is presumed to he
malicious, where an instrument likely to cause death is used by its perpetrator..
Third, the facts of the killing—of his presence—and of his participation
therein being proved, or admitted by the prisoner, every matter of justifi-
cation, or excuse, or of mitigation, must be shown by him / and it is ineum-
bent on him to establish the matter of justification, excuse or mitigation, he-
yond a reasonable doubt.
State vs. Peter Johnson, 3 Jones, (H. C.) p. 266, H. B. 273. State vs.
Craton, 6 Ired. (H. C.) p. 164. State vs. Starling, 6 Jones, (N. C.) p. 366.
State vs. Ellick, Winst. L. & E. (H. C.) p. 69.
I have now clearly defined the limits of justifiable homicide, of excusa-
ble homicide, and of that species of felonious homicide called manslaughter,,
and have ascended, at least, to. the highest grade of homicide, called mur-
der. And I have addressed myself, with some prolixity, to the task, prin~
cipally for the purpose of explaining what is meant in law by malice / for
every act of slaying a human being—all homicide—which is not either jus-
tifiable or excusable, or of the nature of manslaughter, as I have defined it,
is, in law, malicious, and is murder. The law implies the malice, and that
implied malice is what we mean by malice in a legal sense. "When, there-
fore, we say, in defining murders, that murder is the unlawful slaying of a
human being, in the peace of God, and of the State, of malice aforethought,
either express or implied, we mean, by that part of the definition which
speaks of malice aforethought, implied, or malice in a legal sense, that the
homicide is committed under such circumstances that its perpetrator cannot
show what, in law, is a justification, nor an excuse, nor a mitigation—by
reason of accident, or human infirmity—of his crime; and there is no pos-
sible way of understandinging what we mean by malice aforethought, im-
330
ARGUMENT' OP E. G. HAYWOOD,
plied, or malice in a legal sense, unless you first clearly comprehend what
is meant by justifiable homicide, excusable homicide, and manslaughter.
You must define all the latter before you' can understand what is meant, in
law, by malice aforethought implied. You must define malice aforethought
implied, before you can take in flie legal definition of murder; for all slay-
ing is, in legal contemplation, accompanied with malice aforethought, unless
it evidently appears to be justifiable, or excusable, or mitigated, by reason
of circumstances of accident or of human infirmity, to a lower grade of
homicide1 than murder. The clear apprehension of these principles is im-
portant, because from them we draw the legal corollaries to which I have
referred—that the fact of the killing—of his presence thereat—and of his
participation therein—being proved, or admitted, against the person charg-
ed, to reduce his oftence below the grade of murder, by circumstances of
duty, of necessity, of accident, or of human infirmity, he must prove those
circumstances, or they must necessarily arise out of the evidence adduced
against him. The principle enunciated is applicapble not only to the man
who actually commits the criminal fact, but to all the persons who were
present at its commission, aiding and abetting him therein.
If we prove that A actually shot the pistol which slew the deceased, and
that B and C were present, aiding and abetting him- in the shooting, the
law calls it murder in all; and it is for the persons, who were present, ap-
parently aiding and abetting, to show such circumstances of duty, of neces-
sity, of accident, or of human infirmity, as shall either justify the act, or
excuse it, or reduce it to a lower grade of felonious homicide, which we call
manslaughter; or to show that their apparent aiding and abetting was
not real. • '
I repeat it—-the application of this principle is not confined to what we
call the principal in the first degree—who is the .actual perpetrator of the
criminal fact—but it embraces all who are present apparently aiding and
abetting him; and if we prove a killing by one man, and an actual presence
and an actual aiding and abetting, by two or three others, then the pre-
sumption of law arises that the killing was murder in all, until the defen-
dants show the contrary,—and—as has been decided in North Carolina—until
they show the contrary beyond a, reasonable dotibt. State vs. Peter John-1
son, 3 Jones, (IT. C.) p. 266, 1ST. B. 2T3.
If these defendants, AYatkins and Powers, -were present, aiding and abet-
ting Tolar at the time the homicide is proved to have been committed, and
Tolar fired the pistol which slew Bebee, to reduce their offence to another
grade of homicide than murder, it is necessary for them to show, beyond a
reasonable doubt, the circumstances of duty, of necessity, of accident, or of
human infirmity which the law requires, to change the complexion of their
crime; or to show that their aiding and abetting was only apparent and
was not real.
But it was not my sole object, in thus, at length, considering the distinc-
tions in homicide, to ascertain the meaning which the law attaches to the
word malice—to define the crime of murder—and to point out that some of
the same rules of law and evidence apply to persons charged as aiders and
abettors, which apply to those charged as principal felons in the first degree.
I had yet another, ulterior, object in view—I wished, by these means, to be
enabled to intelligibly illustrate a general principle of the law, for which we
shall have use further on in this argument, when we come more particularly
to consider the case made out against the prisoners AYatkins and Powers,
SPECIAL - JUDGE ADVOCATE.
331
who are charged to have been present aiding and abetting Tolar in the
murder alleged.
That principle is—that where the criminal intent which contributes to
the crime, is not commensurate with the criminal fact which constitutes its-
corpus, human law punishes the crime according to the guilt of the act, and
not according to the guilt of the intent. This principal is very general, and
to it there are no absolute exceptions, and but few limited ones. Every crime
consists of a criminal intent, and a criminal act. How ever guilty the criiri-
inal intent may be, municipal law does not punish it, until it developes it-'
self into either a criminal act, or, at least, an attempt- to commit a criminal
act. It is only the Divine law, which says that " the man who looketli on a-
woman to lust after her, hath committed adultery with her already in his
heart," and threatens punishment accordingly. Yet, while so much is true,
human governments are so far vindictive, that they never punish a criminal
fact, unless it is accompanied with a criminal intent—however deleterious-
an act may be to society, governments, instituted for the preservation and
protection of society, do not punish it, unless its perpetrator deserves punish-,
ment—in other words—unless he has some criminal will 01* intent, which
has contributed to the injury.
Laws are instituted for the preservation and protection of society, there-
fore they inflict 110 punishment on a criminal intent, until it takes a form,
which is deleterious to society, and developes itself into a criminal act; but
however deleterious to society an act may be, as we have already stated, good
laws do not prescribe a punishment for it, unless it is produced or accompa-
nied by a criminal will or intent. The law punishes only when an injury-
has been done to society, and wThen moreover, the person doing that injury,
is, to some extent, at least, deserving of punishment, for his guilty will.
This is what we mean when we say, every crime punishable by law con-
sists of a criminal intent, and a criminal act. But the criminal intent is •
sometimes not co-extensive with the criminal fact—since a man sometimes-
fails to execute his .exact purpose ; his criminal intent may develope itself into
an action more or less criminal—that is more or less injurious to society
than he intended. In such eases, if the will or intent be criminal at all, the
law punishes the offender according to the guilt of the fact, and not accord-
ing to the lesser or greater guilt of the intent.
Looking, then, closely into the doctrine of crime, we shall see, that the
evil of the intent, and the evil of the act, added together, constitute the evil
punished as crime; and, an act producing an unintended result, must, when
evil, be measured either by the intent, or by the result. The legal measure
is very generally by the latter, holding the person guilty of the thing done,
where there is any kind of legal wrong in the intent, the same as though the
thing actually done, wmre specifically -intended.
Bishop on Crim. Law, vol. 1, sec. 411-412-114.
To apply these remarks to the subject of homicide—If A shoot at his own
poultry, in a retired place where no one is likely to pass, without intention
of bodily harm to any person, and using proper caution to prevent injury to-
others, and unfortunately happens to kill B, who is accidentally passing ,
within range of his gun, it is excusable homicide only, though it residted in
the death of a man—for A had no criminal intent at all.
But if A wantonly, and without other evil intention, than merely to com-
mit a civil trespass, shoot at the poultry of B—and by accident killethB—or
a stranger, the law calls it manslaughter—involuntary manslaughter, a felony
—and punishes the second offence of the same character with death—because
332
ARGUMENT OF E. G. HAYWOOD,
A had some criminal intent—the intent to commit a trespass—and that in-
tent has resulted in the death of a human being—the law measures the guilt
of A's crime, by the result of his criminal intent, and not by the guilt of the
intent itself, and would call his crime murder, but that the malice essential
to the crime of murder, is disproved by the facts of the case.
Again: A shoots at the poultry of B, and by accident kills a man; it is
collected, from the circumstances, that A's intention, in shooting, was to
steal—the poultry; his crime will be murder—the result of A's criminal in-
tent is the death of a human being—and the circamstances accompanying
the act develop what the law calls malice: A's intent was to commit an in*
considerable theft—the measure of his criminal intent was so much and no
more—but the measure of his legal guilt—is the result—murder—and the
law punishes him accordingly.
(Ivel. 107. 6. St. Tr. 222. Fosters Cr. L. 158. 1. Pussell on Crimes
540.)
These examples might be multiplied ad infinitum / as, where a person
gave medicine to a woman, to procure abortion ; and where a person put
skewers into the womb of a woman for the same purpose; by which acts in
both cases, the women were killed, though it was evident the death of the
women was not intended, the offences of both criminals were held, clearly, to
be murder.
(1. Hale P. C. 429. Tinckler's case I. East P. C. chap. 5, sec. 17, p. 230?
and sec. 124, p. 354. t 1, Puss, on Crim. 539.)
But, I refrain from fatiguing the Court, with furthur instances, and ex-
amples. I shall content myself, and it is enough for my purpose, to announce
as a general and well established rule, derived from these principles : that
if an action unlawful in itself, be done deliberately, and with intention of
mischief or great bodily harm to particular individuals, or of mischief indis-
eriminately fall where it may, and death ensue against or beside the origi-
nal intention of the party, it will be murder.—(Fist, C. S., 261. 1 Puss, on
Cri. 538.)
And one more rule—equally general and eqally well established, for which
we shall have occasion, when we come to apply the law and facts of this case
more particularly to Watkins and Powers—that where divers persons re-
solve generally to resist all opposers in the commission of any breach of the
peace and to execute it, in such a manner, as naturally tends to raise tu-
mults and affrays, they must, when they engage in such bold disturbances of
the public peace, at their peril, abide the event of their actions—and, there-
fore, if in doing any of these acts, one of them happens to kill a man, they
are all guilty of murder.
(1 Ilale, P. C. p. 439, et. seq. 1 Hawk, P. C. cliap. 31, sec. 51. 1 East.
P. C. chap. 55, sec. 33, p. 257. 4 Bla. Com. p. 200. 1 Puss, on Crim. p.
541..)
May it please the Court: I have now laid down the rules, by which, a
tribunal engaged in the investigation of facts, is to be governed, in analys-
ing the evidence adduced, and in drawing legal deductions therefrom. I
have also laid down wdiat law of homicide it is, which is, to control this
Court, in its decisions ; and I have likewise made a careful analysis of the
legal subdivisions of homicide, and ascertained what are the essential consti-
tuents of the crime called murder; we are, therefore, prepared, to proceed
with the investigation of the facts of this case ; and I conceive it will be of
much assistance to the Court, to ascertain at once those points of the case,
and those circumstances surrounding it, concerning which, the government,
SPECIAL jTtJDQE ADVOCATE.
333
and the defence are agreed, and as to which there can he no reasonable pos-
eibility of dispute.
It appears, then, that on Sunday, the tenth day of February, in the pre-
sent year? olie Archy Beebee, a young man of color, was accused of having
attempted to commit a rape, upon Miss Elvira Massey, in the county of Cum-
berland, near the town of Fayetteville. It no where appears, in evidence,
and it is not proper, that it should appear, whether this charge was well or
ill founded; but, in consequence of the charge, it is in evidence, that during
the night of the same day Beebee was arrested, and in the afternoon of the
ensuing day, at about three o'clock, he was carried to the town hall, in Fay-
etteville, by the local police, to undergo a preliminary examination, that it
might be ascertained whether the proof of the offence charged, was sufficient
to justify the magistrates, in committing him to prison to await his trial
there for in due course of law. It is not proved, nor is it proper that it
should have been proved, whether the committing magistrates came to a
conclusion adverse or favorable to the accused, whether there was sufficient
evidence to justify his committal or not; but there is a strong probability
that the Justices had drawn conclusions unfavorable to Beebee, and had
ordered his committal, arising from the fact, which is in evidence, that he
left the town hall, still in the charge of the myrmidoms of the law.
Some considerable crowd had assembled at, and near the market house in
Fayetteville, (in the upper part of which was the town liall,) before Beebee
went up tor examination; and after he went up, and while this preliminary
investigation was going on above stairs, a large, and seemingly, a quiet
crowd—as to the number of which, there is a contrariety in the evidence,
but which consisted, probably, of somewhere between one and two hundred
persons—were assembled at and about, and within, the market house. The
crowd was excluded from hearing the trial, by the magistrates, in tenderness
to the feelings of the young lady and her friends. As Beebee descended the
steps of the town hall, which terminated on the ground floor of the market
house, in charge of the officers of the law, and before, or at the time when
he passed out of the eastern arch, which forms the main entrance to the
market house, on that side, he was assaulted, and efforts were made to take
him out of the charge of the officers—for what purposes it does not absolute-
ly and positively appear, except from the details following and by the event.
There can be no doubt as to some of the persons who were engaged in
this assault. One of them was the prisoner at the bar, Thomas Powers,
another was the prisoner David Watkins, otherwise called Monk Julia.
The latter defendant dms, without doubt, armed with a knife of no very for-
midable proportions. As to the other, Powers, there is some little con-
trariety in the testimony, whether he was armed with any weapon or not.
One of the witnesses at least, has armed him both with a knife and a pistol;
and I think the evidence with reference to his being armed with a knife, is
sufficiently conclusive to justify me in stating thai as one of the admitted
facts of the case. But about this time Thomas Powers certainly attempted
to seize Beebee, and made a verbal demand for him on the Sheriff.
From the time when the effort was first made to take Beebee from the
hands of the officers, until the moment when he was shot, but a very short
time elapsed. It could not have been upon a comparison of all the testimo-
ny, both for the prosecution and for the defence, more than a minute—at
the uttermost two minutes—from the time Beebee crossed the threshold of
the market house, to the moment when he lost his life. During that period
of time, the assault, which had been initiated by Powers and Watkins or
.334
ARGUMENT OF E. G. HAYWOOD,
Monk and others, and which consisted of verbal demands for the prisoner,
made upon the Sheriff, couched in threatening language—of attempts to
use their knives upon him—upon the part of the two whose names are
specifically given, and of some others whose names are unknown, (for it
appears that several knives were drawn, and brandished in the crowd din
ring the rush, according to the evidence of so many witnesses) and also of
a violent rush upon the part of many others, perhaps the greater part of the
crowd, and an effort made by them to take him out of the hands of the of-
ficers, this assault thus initiated and continued, never ceased, but was extended
by continuous and repeated pressure of the crowd, upon the officers who
surrounded the prisoner, until the moment when he lost his life. During
this rush or succession of assaults, the sheriff of the county exhorted the
crowd to desist—ordered his assistants to use their clubs, and their clubs
were used all in vain.
That Archy Beebee was killed then and there, is a point which does not
admit of discussion. That he was killed by means of a leaden bullet, shot
from a pistol, held in the hands of some one who was in that crowd, is anoth-
er point, which is not open for discussion. That Tolar, .as well as Powers
and Watkins were in the crowd, at, and during the whole time of this trans-
action is also proven; and it is equally well established that Tolar was arm-
ed with a pistol on the occasion, and by several of the witnesses for the pros-
ecution, and by one tendered by the prisoners, that he had the pistol out in
his hand at or near the time of the killing. Such being the leading facts of
the case, upon which both prosecution and defence must be agreed, it is plain,
that, whoever, was the immediate instrument by whcse hands, Beebee's life
was destroyed, was guilty of no lower grade of homicide than the crime of
murder, the legal definition of which offence I have endeavored to set out, in
the preceding part of this argument.
The question, and one of the principal points of inquiry, it is according to
the prisoners view of the case, here presents itself, although I think its im-
portance has been greatly magnified and exaggerated by the-defence—who
shot the pistol the Bullet from which slew Archy Beebee % In whose hands
was it held ? By whose volition was it directed, when Archibald Beebee was
then and there shot to death.
And here I must pause—painfully pause—to direct the attention of the
Court to the enormity of the crime that was committed, by whomsoever it
was done—pause, because so much has been publicly said by the Counsel for
the defence of a contrary character; pause, because this offence has been
treated with so much levity, by the gentlemen who represent the prisoners;
pause, because, as I conceive, it is the bounden duty of. every prosecutor—
representing, as he does the outraged justice of the government—not, simply,
■to endeavor to being felons to justice, but also, in performing that duty,
when the occasion demands it, to inculcate sound principles of morality, and
of policy—from the lofty station, in which his sacred duty places him—I
say, I must pause, to consider the enormity of this offence if for no other
reason—yet for this—that one of the Counsel for the prisoners, announced
to this Court, and to the public, that the crime, which on that winter's day,
stained a whole community with blood, " was murder, but it was as nigh a-
kin to virtue, as murder ever grew to be." Aye—and also, because another
counseller, in his address to this Court—at this very time—even now—when
the weaves of recent social strife—flecked with fragments of the wrecks of all
of this life's precious things—are not yet sunk down into a calm political
sea—declared, before what purports to be a Court of justice, that as he con-
SPECIAL JUDGE ADVOCATE.
335
ceived, it was advisable, and proper, and.desirable, and right,—that—when
crimes of the nature of that charged against Beebee, were attempted—the
public should understand, that the populace stood ready to redress them by
mob violence—that when fathers went to their graves, they might know that
he, and others who thought as he did—stood ready—if like evils should be-
fall the orphans whom they left behind—not waiting for conviction—not
waiting for discussion—not waiting for legal proof—to seize upon the victim,
who was accused of an attempt to commit a rape, and suddenly to take away
his life—that it wTas well to take their victim grossly—full of bread—"with all
his crimes broad-blown, and flush as May"—and, unprepared, to send him
to his last account. I have heard such principles enunciated, in the course
of this discussion, as have filled me with horror; and, I intend here, as I have
elsewhere—upon all occasions—under all circumstances—having entertained
similar views even in the midst of revolution—to denounce mob-violence, in
whatever shape it may be presented, or for whatever wrongs to the comnm-
nity, real or supposed, it maybe called into action. Of all the creatures that
God has made, there is not another one so terrible, as that many-headed
monster—a mob. Of all the evil passions -which have been evoked out of a
corrupt and travailing creation, none are so wild—so fierce—so untamable—
so foul, as those, which possess the hearts of an inflamed and brutal mob—
even as the devils possessed the swine of Gadara, which " ran violently down
a steep place into the sea, and perished in the waters." Upon the face of
this accursed and troubled earth, there is no bear, robbed of her whelps, so
deaf to reason—there is no hungry tiger of the desert so callous to pity—no
hyena, battening on the horrid spoils of the church-yard, so obscenely foul—
as a mad, unpitying vulgar mob. I will not, upon any occasion—especially
when I am acting as the representative of the law—permit sentiments to pass
unnoticed, and unrebuked, the tendency of which is to justify any man, or
set of men, who, for any cause whatever, have taken the law into their own
hands, and destroyed human life.
But at last, all the prisoners' Counsel have said upon this subject is from
the purpose of this trial. It is hardly necessary for me to remind this Court
of the fact, that the crime with which Arehy Bebee was charged can have
no weight whatever, in any point of view, with them in the decision at
which they are to arrive. We are not engaged in investigating this case
with a view to redressing the wrongs of Archy Bebee. lie lias gone to his
place. The injury which has been done to society by this act of lawless
violence is the immediate matter which is awaiting the sanction of the law.
I am quite sure this method of discussion has had—I am equally sure that
it will have—no effect; that it has thrown no appreciable weight into the
scales of justice which are now poised in the hands of this Commission.
"Whether the deceased may have deserved the fate with which he was re-
warded or not, is a question which, as I think, it is unnecessary to discuss.
It will be in vain, I am sure it h is been in vain, to attempt, by reason of
Archy Bebee's alleged offence, to in any way control the decision of this
Court. But so much denunciation has been heaped upon the head of the
deceased that I am compelled to speak of his wrongs. It is fair and proper
that I should submit to this Court that, in the eyes of the law, he was an in-
nocent man, until he was pronounced guilty by a judicial tribunal, in which
the law was administered according to the course of procedure prescribed
by law. Until some legal tribunal had pronounced him guilty of the offence
with which he wras charged, he was as innocent, in the eyes of the law, as if
he had never been charged. But admitting—-pro hac vice—that the de-
336
ARGUMENT OF E. G. HAYWOOD,
ceased was guilty of an attempt to ravish a defenceless girl—even that such
a one should be cut off cruelly and suddenly, as Bebee was—no matter how
redly he may have been stained with sin—no matter how deeply he may
have been steeped in crimes—that the vilest felon should be thus cut off as
he was—even " in the flowers of his sin—unhousel'd—'disappointed—unan-
nealed—no reckoning made, but sent to his account with all his imperfec-
tions on his head,"—instead of checking crime, encourages it, by making its
perpetrator the object of our commiseration and pity, rather than of our
hatred, loathing and contempt.
Adopting, for the nonce, the views of the prisoners' Counsel—that the kill,
ing of Beebee, under all the circumstances, was as mild a murder as is
known to the law—regarding, for the present, the crime of these defendants,
as a very trivial one—still, if it be the object of punishment to prevent
crime, how much better, if Beebee were guilty, would it have been, to have
left him to be degraded, and dishonored, and punished by the law, than by
his sudden, cruel and remorseless murder—to have given a prominence to
his wrongs, that overshadows his guilt, and makes him an object that now
excites only our commiseration. I know not of what stuff the opposing
Counsel, and the members ot this Court are made, but for my own part I
am not given overmuch to the melting mood—yet—guilty though that man
may have been—there were moments, in the course of this trial, when I
could with difficulty restrain the tears from springing to my eyes ; when the
sad story of the cruel fate, and sudden, and untimely, death, of this young
negro was told—when the Sheriff of Cumberland County stood upon that
stand, calm, firm, immovable as Justice's self, and manfully did his painful
duty, by testifying in this cause— when lie imitated the last sough of the
dead man's bursting heart, and told us how he breathed out his final sigh
for life, leaning upon the breast of his jailor, the last minister of the law's
most cruel vengeance, and closed his reproachful eyes upon the light of this
woild forever—I think it no shame to own, that my heart bled for him—
for his wrongs—for his untimely fate. And from time to time, as the evi-
denee in this cause was rendered, imagination pictured on her dim canvass—
this young negro—lately enfranchised—with his heart and mind just open-
ing to the consciousness of the great privileges, as he conceived, which had
been so newly bestowed upon him, hoping now, for the future, to enjoy a
new life—suddenly betrayed by his wild, hot, African blood, and the mad
devil, Lust, into an attempt to commit the foulest crime known to society—
as suddenly arrested with all the grossness of his sin yet in his heart—and,
bound and helpless, carried into the midst of an angry, pitiless mob—assail-
ed—struggling for his very life—springing like a wild deer in the forest, from
the earth, to escape the knives of his assassins—striving—sobbing—sighing—
begging—for his life, in his supreme agony—and there no soul to pity him—
and I confess I have no patience with any such methods of administering
justice • I confess that with me, and, as I think, with the majority of men,
the wild justice, thus administered, loses all good effect, is stripped of every
shred- of virtue—and shows itself in all its naked deformity, as cowardly and
hideous assassination.
It is all radically wrong. If the laws are defective let them be changed
by time, and proper exertion, but in God's name, let us not hear it proclaim-
ed in a court of justice by counsel, learned in the law, high in position,
of weight and authority in the community—that offences of the character
of this one alleged to have been committed by the prisoners at the bar, are
"as nigh akin to virtue as murder ever gets to be," that it is right and prop-.
SPECIAL JUDGE ADVOCATE.
337
er that the ravisher and the would-be ravisher, should understand, and that
the public should know, that every honest hand is armed with the assassin's
knife, and the mob stand ready, without investigation, to administer ven-
geance—-not justice—for his foul offence.
But I beg of the Court, if at any time, in the zeal of advocacy, or in the
heat, that necessarily arises in debate—I utter one word which is calculated
to prejudice their minds, or to harden their hearts against the prisoners at
the bar, to discard it in .the name of God and justice, in coming to their
finding. My desire and intention has been from the beginning of this case,
my desire and intention is now—and I speak as in the sight of God—I have
no personal or political interest in the event of this trial, and in all that I
have done or shall do. in this connection, my hands are clean—my heart pure
—my conscience is unwounded—my desire and intention has been and is—
only to assist this Court, in arriving at a just and legal decision—and
if at any time I wander from that path by any heated expressions, or
strained arguments, or erroneous statements of law, I beg that the Court,
in their retirement, will correct my errors, and discard every sentiment, or
thought which is calculated to inflame passion, or to excite prejudice against
these unfortunate prisoners, and will consider the case oven with tenderness
towards the accused. I wish them to have a trial, which is strictly just, and
leans towards mercy. There is one of them for whom in my heart of hearts
I feel as deeply as I ever felt for a man iu the like perilous situation. There
are tender ties between one of the prisoners and myself, to which it is un-
necessary and unbecoming for me to make further allusion here. But I have
a duty to perform in this cause—and so help me God—I shall do it. I have
no wish to take one step beyond it—but I do feel it to be my duty, and I
shall feel it to be my duty, to speak in very plain terms of much that has been
said by the Counsel for the prisoners, and of much that concerns this cause,
and the prisoners themselves; and I shall speak out, and leave the conse-
quences to fall where they may. I do feel it to be mv duty to call a felon a
felon ; I do feel it to be my duty to the best of my ability to brush all the gloss
and gilding off of crime, and to show it in its naked ugliness. I feel it to
be my duty when an effort is made to make a hero of a very common place
felon, and to dress liim in a lion's skin, to the extent of my power, to strip
off the lion's hide, and hang a calf skin on his recreant limbs. And when
it is announced here, by learned and distinguished gentlemen, with a flourish
of trumpets,—that if one of these prisoners goes from this dock to the gal-
lows, for his crime, his name and his image will be enshrined in the hearts of
the women of the land as the spotless martyr, who, in defence of feminine
virtue, has lost his life—it is my duty to append as a part of the as yet un-
written history of this second Sir Launcelot du Lac—that having set his life
upon a cast, in support of his mistaken principles, and in defiance of the
law, he failed to stand the hazard of the die—that having had the bravery to
commit the crime of murder, as the best means to protect the women of the
land from the lewd assaults of their late negro lackeys, he failed to have the
courage to own his offence and bear the consequencies of his act,—and that—
ph, felon, like! he attempted**oii his trial to thrust an innocent man into his
place, and to leave another to suffer for this honorable crime, which he him-
self had committed. And if, in spite of all this, the prophecy of my brother
Phillips shall be verified, and' the women of the Staff select iho prisoner
Tolar as the hero martyr of their sex—I can but say the condition of the
feminine mind of this community will be damnable, and need purging. I
allude to these things, not to prejudice the Court—I entertain no fear oi
338
ARGUMENT OF E. G. HAYWOOD,
that—but it is a plain duty so to speak, roundly in the interest of public virtue
and justice, and to show the absurdity of these attempts to make a Bayard
out of a felon, For my convictions are strong as death of the guilt of these
men, and I think, by the time that we get through with the case, this Court
will fully concur with me. The Court, too, have heard the terms in which
Phillips, a witness for the prosecuion—lias been spoken of by the priso-
ners' Counsel, but suppose—for the sake of argument—that Phillips is truly
and entirely innocent—as I think the Court will come to the conclusion he
is—and that these prisoners have suborned witnesses, or at least produced
witnesses here who are endeavoring to prove that he is the guilty party— and
Tolar innocent. Pray,—in what degree does the vileness of Phillips, as alleg-
ed by the prisoners' Counsel, differ from the vileness of those defendants,
who introduced such evidence as proved,—if the Court shall agree with
me that Phillips is to be believed ?
"A man may see how this world goes, with no eyes—
Look with thine ears—see how yon justice rails
Upon yonder simple thief! Hark, in thine ear,
Change places, and—handy-dandy—which is the justice
And which is the thief?"
But, as I have before said, the injury which has been done to society, by
this act of lawdess violence, is the immediate matter which is awaiting the
sanction of the law; and, in this connection, I have the right and it is my
duty, especially when we consider the present political condition of this
country, and of this State, to speak of the peculiar character of the offence
which was committed that day in the most public part of the town of Fay-
etteville, in the presence of many of her citizens, and in the blaze of the
noon-day sun. It indicated what, in my heart, I believe to be the prevailing
and the pervading sin of this nation—a spirit of defiance to legitimate au-
thority—of utter lawlessness and of insubordination ; for not only was it an
attempt, upon the part of those who were immediately concerned in this
homicide, to administer mob-law upon one who, it was alleged, had been
guilty of a very heinous offence—but it was an attempt, upon their part, to
administer such law7 at a time when he wras in the hands of the law, and
especially and peculiarly under its protection. Its significancy went beyond
this. On account of the peculiar relations which the State at that time sus-
tained—and now sustains—towrards the United States, a change in our own
legislation had.lately been effected, by which the punishment inflicted on a
negro, for an attempted rape upon a white woman, had been diminished in
its character and extent; for formerly if a man of color w7as charged wdth
such an attempt, and found guilty, he wras punished with death; but on ac-
count of the recent political revolution in the State, the local legislature had,
not long before this crime is alleged to have been attempted, abolished the death
penalty in such cases. I understand by their conduct that those who wrere en-
gaged in the perpetration of the homicide now on trial, proposed, by that means,
to enter their most solemn protest against any such changes in our legislation,
or in the system of our laws; and, upon that issue, to stake their lives upon
a cast, resolved to stand the hazard of the die. It is not necessary for me to
dwell long upon this subject, in order to fix itjjin the minds of the Court,
that crimes of this character, perpetrated under such circumstances as those
wThich I have indicated, are amongst the more heinous offences of wdiich
one, who is a member of an organized political society, can be guilty. Such
offences strike at the very foundation of all law. Kay, they sink deeper,
SPECIAL JUDGE ADVOCATE.
539
and strive to cut up even society—which, in a logical sequence, -is anterior to
law—by the very roots; for man is so constituted that government is essen-
tial to society, and organized society is essential to the existence of human
beings, even in the lowest- state of civilization.' For what shall we call a
state of nature but the state in which men have ever been found—a state of
society? And how is society capable of existing without government? and
who has given man that complex nature, which is the last- visible cause of
both these results, but God himself? It is folly in us to resist the evidence
of our senses, striving to found governments upon the false principles of
selfishness alone, and of a state of warfare between all our species, when
facts establish that if our race is "a selfish it is also a social one; that our
beneficent Father has not put us into the world with our hand against every
man, and every man's hand against us; but that He delivers us into the
hands of a society—of a society regulated by. the dictates of wisdom and jus-
tice—of a society -which gives alms to the indigent—defence to the weak—
instruction to the ignorant—consolation to the despairing—support to the
helpless—nurture to the aged—faith to the doubtful—and charity to the
whole human race—which diffuses its beneficent exertions from acts of ten-
derness to the infant, when he first cries in his cradle, to acts of comfort and;
preparation to the dying man on his way to the tomb.
Now all of those crimes, which indicate a spirit of lavsdess insubordination,,
tend to produce, and are intended and calculated to produce, and bring
about, a state ot anarchy and chaos. Our country has suffered too severely
from, has been wounded too deeply by offences of this character, for the
Courts to- permit them to go unpunished. " Mercy but murders, pardoning
those who kill."
I ask this Court—what is it, that gives force and stability to all govern-
ments, and induces peace, and tranquility throughout the land ? what is it—
but a reverence for authority, because it is authority, and a cheerful submission
to the law, because it is law ? It is. this pervading sentiment inhabiting the
hearts, and controling the acts of British subjects which has sustained theEng-
lish monarchy while, all about it, other European governments, have tottered to
their fall—until it stands in the midst of ruins. It is this sentiment which jus tifi-
ed the great Commoner of England, in his impassioned burst of eloquence in
commendation of Anglo Saxon liberty—when he declared, in a maxim of the
law—that an English man's house was his castle. Said the illustrious Chat-
ham: " In this country, the meanest peasant, within his cottage, may de-
fy the power of the British crown. It may be frail—its doors may shake—
its. roof may shake—the wind may blow through it—the rain may enter it—
the storm may enter it—but the King of England cannot enter. The. Boy-
al Majesty of Britain,; surrounded with all his myrmidons of power, dare
not cross the threshold of that ruined tenement."
. Nations have passed away—races of Kings have waxed old and perished—-•
but these principles of liberty have endured—Stuarts and Tudors—Yorkists
and Lancastrians—Plantaganets and Normans—Danes and Saxons—have
died and been forgotten—they are all gone—sunk down—down—with the
tumult that they made—and the rolling, and the trampling of ever new gen-
erations passes over them—and they hear them not any more again forever;
but the principles of the British government—of the British constitution—
still live; because her people acknowledge tbat they are founded in justice,
they are planted in right. That justice which, emanating from the bosom of
the Deity Himself, burns in a feeble spark, in the heart of every man that
breathes—that right " whose throne is the bosom pf God, whose is voice the
340
ARGUMENT OF E. G. HAYWOOD,
harmony of the world—which angels and men, and creatures, of what cor
"dition soever, must, with uniform consent, recognize and admire, as the pa
rent, ot their peace and joy." These principles yet endure ; yea, and they
shall endure. 1
" When all that we know, or feel, or see,
Shall pass like an unreal mystery,"
"The cloud capped towers, the gorgeous palaces;
The solemn temples, the great globe itself;
Yea, all which it inherit, shall dissolve ;
And like an unsubstantial pageant faded,
Leave not a rack behind ; we are such stuff,
As dreams are made of, and our little life,
Is rounded by a sleep—"
But, there is that which existed before the world began, and which will
exist, when this earth, and all that it contains, shall have been burned into
ashes—Law—Truth—Right—Justice—they are eternal, and " God is them."
But, it is not alone the spirit of lawlessness which this crime manifests,
that deserves the especial animadversion of the Court, but the ill chosen
time, which was selected, by its perpetrators, for the purpose of making this
manifestation of violence. Lawless violence at such a time as this, which
we live in, especially indicates, what, in the language of the law, is called, a
heart regardless of social duty, and fatally bent upon mischief. It indicates
that stubbornness of disposition—that deliberate determination to refuse to
be taught by the lessons of experience—the general adoption of which, upon
' the part of her citizens, is the sure precursor of a nation's destruction.
The recent bloody war, which has brought upon this country, North and
South, so many woes, may—in my humble opinion—be traced to the same
spirit of insubordination, in both sections, North and South—peculiarly maui-
fested by these prisoners, in the perpetration of their crime ; and if history
teaches anything—if any lesson of wisdom is to be gathered from the records
of the past—it is—that such evils as we have endured, are permitted to fall
upon a country, in order that her citizens may profit by the lesson which
they teach, and abandon the faults, which lead to such disasters,
i I cannot but believe, that when a people have been subjected to heavy
misfortunes, which palpably result from a national fault, those who refuse to
be taught by past experience, and who, immediately after such experience,
persist in repeating that fault—even in a less degree, are peculiarly obnoxious
to the penalties of the law, and are amongst the worst enemies to society.
Lawlessness has been the curse of this nation ; and, as in other instances of
national sin, it has worked out its own punishment—woe be to the man!
woe be to the nation ! that refuses to be instructed by the teachings of the
Judge of the whole earth. For, I am not among those who have much faith in
frequent, direct visitation from the Most High : such visitations are pos-
sible, and undoubtedly sometimes occur; but in controlling nations, as in all
other manifestations of Ilis power, I cannot but believe, that, the God of all
the earth, usually works by general rules ; and permits national crimes to
effect their own-cure, by showing mankind, the certain suffering, which if
their legitimate consequence. It is natural to attribute the suffering#
which overwhelm an afflicted country, to the immediate anger of God—to
his wrath, for the misdeeds of which that country has been guilty—but for
myself, I do not believe in such exhibitions of God's anger. When wars come,
and pestilence, and famine—when a general conflagration sweeps over the
land, or an earthquake sinks it—when the people of' a land are worse than
SPECIAL JUDGE ADVOCATE.
341
decimated so that the living are hardly able to bury their dead—I cannot
coincide with those? who attribute these things to the direct visitations of
God I do not believe, that our God stalks darkly along the clouds, laying
thousands low, with the arrows of death—and those thousands, the more ig-
norant—because men, who are not so ignorant, have displeased Him : nor,
if in his wisdom he did so, can I conceive, but that He intends, by such
means, to force a rebellious and stiff-necked generation to change their
ways, and to do, for the future, that which His wisdom has shown to be good
and right.
But—though I do not believe in exhibitions of God's anger,—I do believe
in exhibitions of his mercy ; when men by their folly, and the shortness of
their vision, have brought upon themselves penalties, which seem to be over-
whelming—to which no end can be seen—which would be overwiielming,
were no help coming to us but our owm—then God raises His hand—not in
anger, but in mercy—and by His wisdom does for us, that, for which our
wisdom, had been insufficient.
But on no Christian basis, can I understand the justice, or acknowledge
the propriety of any spurious mercy, extended by a nation, to those, who re-
fuse to be taught, by reason, and by bitter experience, and who presume to
combat the settled purposes of the Most High. If He be wise, would we
change His wisdom. If He be merciful would we limit his mercy?
A mighty conflagration lays a great city in ashes, and very frightful are the
flames, as they rush through the cabins of the poor; and very frightful is the
case of individuals who are ruined by the stroke. But—ii this beneficent
agency did not from time, disencumber our crowded places, we should ever
be living in narrow alleys, with stinking gutters, and the supply of water at
a minimum ; and wise men take the lesson to heart, and . new cities rise up,
in splendor, from the ashes, into Which old cities, had been consumed by fire.
There comes upon us some strange disease—and. men pray God to stay
Ilis hand; but the disease, when it has passed, has taught us lessons of
cleanliness, which no master less stern, would have made acceptable. But
mankind, if wise must accept the lesson, and obey its teachings. A famine
strikes us; and we again beg that His hand may be stayed ; beg as the
Greeks were said to beg when they thought the anger of Phoebus was hot
against them, because his priest had been dishonored—we so beg, thinking
God's anger is hot against us. Lo! the famine passes away, and the land,
which had been brought to the dust, by man's folly, is once more prosperous
and happy, and blossoms as the rose; for men have accepted God's
teachings, and abandoned the follies which lead to such fatal results. Yery
frightful are these violent remedies ; and very frightful has been the violent
remedy, which was intended, in mercy, to bring us, as a nation, out of our
misfortunes, and cure that terrible irreverence for authority—that excessive
individuality, and self-sufficiency—that stubborn disregard of legitimate
fower— that fearful lawlessness—which has inflicted upon this nation an
iiad of woes. Can we not profit by the teachings of the book of books, for
well doth it say, " Behold to obey is better than sacrifice, and to hearken than
the fat of rams; for disobedience is as a sin of witchcraft, and stubborness is
as iniquity and idolatry."
Entertaining such opinions—I have been astounded—I have been shocked
at the levity, with which, the crime of these prisoners has been treated by
the Counsel for the defence. To me, it seems frightful, at a time like the
present, succeeding the recent social convulsions which have agitated this
country, from its circumference to its center—to hear Counsel learned in the
ARGUMENT OF E. G. HAYWOOD,
•law—high in position—of weight and influence in society,. lay clown the
propositions, and avow the principles, which havejbeen uttered by the Coun-
sel for the defence. I repeat it—the Counsel who opened this cause for the
defence stated, that it was true—this was a case of murder, upon the part of
some'one, but it was as nigli akin to virtue as murder ever gets to be. The
Counsel who succeeded him stated that, in his opinion, it was desirable—not
only that the actual seducer, and the actual ravisher, but—that any man who
was charged with having attempted to'ravish a woman, should without
further legal process, be punished by violence and mob law. 1 have stated
•before, that, ,in my opinion, the greatest woes of this country have sprung
frtfm this very spirit of lawlessness, which the Counsel for the defence seem
yilling to encourage and commend ; such sentiments, are objectionable at any
time, but at a time like the present, there is a peculiar impropriety in their
utterance in promiscuous crowds. Are the Counsel ignorant of the present
disturbed times in which we live ? Have they failed to observe the spirit of
the age, which has been evoked out of the abnormal and agitated state of the
nation, which accompanied, and is immediately consequent upon a great and
terrible social war ? Do our people intend to learn no 1 essoin by their sad
experience ? A subject so splendid as the short period of the late social war,
so full of political, and military instruction—replete with such great and he-
roic actions—adorned by so many virtues, and darkened by so many crimes,
never yet fell to the lot of the historian. During the five years of its pro-
gress, this nation has gone through more than a hundred years of orinary ex-
istence; and the annals of modern history will be searched in vain, for a
parallel to that brief period of anxious effort and checkered achievement.
In no former age were events ot such magnitude crowded together, or inter-
ests so momentous at issue between contending parties. And are we to
learn nothing from the past ? Pause for a moment to contemplate our situ-
ation. ,
North Carolina, with the rest: of the States comprising the late Confede;
racy, is utterly ruined—thoroughly and entirely, undone. I do not now urge
this as a matter of complaint, or to induce despair—far from it. My object
is to prevail upon our people—high and low, educated and uneducated,
white and black,, capitalists and laborers—to entirely realize the stern fact,
as the first and most efficient step towards working out a remedy.. The mon-
eyed capital of the State has been destroyed—its labor demoralized—its cub
tivated lands have become waste places. It is nothing new in history—this
sad picture. It is the old story—:the old, old story—which has been mourn?
fully repeating itself, from the time when Nimrod was a mighty hunter be-
fore the Lord, and went out and founded Babylon. It is but another version
pf " Dae viotis /" it is but another instance, entered on the continually grow-
ing scroll of Olio to prove, that for unsuccessful revolutions, the vanquished
qparty must pay—the men in groans and blood—the women and children
m agony and tears. Seeing the horrors which lawlessness has brought upon
gs, may I not justly say, I am horribly, afraid at hearing such sentiments
advocated, as have been enunciated by the prisoners' counsel in the course
of this trial.
For, now, that the immediate violence of war is over, we are at a more
dangerous period of our national existence, than while it was in actual pro-
gress. This is what the great practical statesman of England meant, when
he said, that "no revolution was so dangerous as a restoration." For wars,
even civil wars, are not productive of unmixed evil. There are sure to arise
out of times of such fierce trial, and sharp suffering, examples of heroic vir-
SPECIAL JUDGE ADVOCATE.
343
tue, of superhuman piety, and of noble self conquest and self-devotion, to set
off the many moral and physical evils which a state of warfare drags in its
bloody train. There is nothing supernatural in this. The magnitude of
the effects produced arises entirely from the intensity of the feelings which
are aroused ; and the extremes of virtue and of vice which are exhibited,
from the incitements to the former and the allurements to the latter which
are presented. And—to those who measure Truman advancement by its ap-
proach to the standard of divine excellence—such examples of virtue—shi-
ning like good deeds in a naughty world—afford some compensation, for the
sufferings which they themselves have undergone. But, when war is ended,
these extraordinary incitements to virtue cease, while the evils of war do not
end with the cessation of active hostilities. Perhaps the greatest danger to
organized society occurs, when murder, rapine and open violence are at an
end—when fire and sword are laid aside—and men's minds, being imbued
with ideas incident to a time of storm apd turbulence, they themselves are
subject only to the milder influence and suasion of the principles of govern-
ment, which obtain in times of peace. It is this season of trial, through
which the United States, and the federal scheme of government which we
have adopted, are now passing. And is this the time in which gentlemen
of learning, of position, and of influence, should advocate a return to the
principles of that " wild justice" of revenge—of which Lord Bacon speaks—
as a substitute for the laws of the land ?
Let me picture to these gentlemen who advocate a return to lawless vio-
lence, some ot the fruits which it has borne. Let me sketch the scenes, or
some of them, which have been so familiar to the gentlemen composing this
Court, during the last five or six years—the thousands of valiant souls of
heroes who have gone down into Hades; men who have not met death, in
the due course of nature, and when supported by all the acts of comfort and
preparation, which dying men desire, on their way to the tomb; but sol-
diers—who, face to face, have met and grappled with the last enemy—the
pale monster, at whose approach the bravest of us shudder—amid the red
glare ot artillery, and the hurtling missiles of a battle; amid the charging of
horsemen, and the fierce, hoarse shouts of soldiers ; amid all the terrible ag-
ony, and pathos, and passion, of that fearful Aceldama, a field of battle.
It is true—no human power can give us back our dead. There is no Jesus
now upon the earth, to stand at the open gates of Nain, to take by the hand
the corpse carried out for burial, and already sinking into the infamy of cor-
ruption, and to give back into the arms of the mourning mothers of this land
the only sons of those who are widows. There is no Divine Friend to visit
our little village Bethanies throughout this sorrowing land—to weep at the
sepulchres of our dead, and to restore Lazarus—bound hand and foot with
grave clothes—to the overflowing hearts of our Marthas and Marys. The
fathers and the sons—the brothers and the lovers—who have been carried
across our thresholds in their bloody shrouds, are laid to sleep, until the
trumpet shall sound—and the dead shall be raised incorruptible—and the
earth and the sea shall give up their dead;—and we shall be changed. No
earthly power can gather together the bleaching bones which now lie scat-
tered over this continent, from Pennsylvania to Texas, knit them again into
the manly forms they once made up, and infuse upon them the glorious
glow of manly strength and youth they once sustained. No hand is there to
rebuild the cheerful homesteads throughout this desolated land, where cluster
all the happy memories and blooming hopes that lighted up our boyish days.
No earthly power can cover with springing grass, and laughing corn, the
su
ARGUMENT OF E. G. HAYWOOD,
naked fields, whose solitary garment now is but the purple gloom which
hangs above the hillocks where our heroes sleep. No earthly gift can com-
pensate us for the carking cares—the fierce and fiery anguish—the bitter
brooding gloom—that have withered many a human heart to ashes during
our late social struggle No! we cannot bring back our dead—we cannot—
God cannot—undo the past; and they ! they have gone with the past. Some
timid lads, that would have screamed at a scratch, met the King of Terrors
with smiles and triumph; and for them the grave was Jordan, and death
but -the iron gates to life everlasting; and some were ripe Christians, and,
like ripe corn, held their heads lower than when the}7 were green—and the
"grave, it seemed to be ripening them—and lying wounded they waited for
the end. Their bodies failed them more and more, until they could not
even praise their Redeemer; yet they lay and triumphed ; with hands put
together in prayer—and eyes full of praise and joy unspeakable—they
climbed fast to God; and while they mounted in spirit their breath came at
intervals unusually long; and hard men and rough soldiers stood by and
wept, to see Death conquer the body, and be conquered by the soul. And
at last there came a breath unusually long—a breath like a sigh—and we
waited—waited for another—waited—and waited in vain. They had calmly
ceased to live. They had passed over the dark river, and rested under the
trees—in the groves of Amaranth and the meadows of Asphodel. And we!
what can we do ? All that is left us is the sad lesson which these gentlemen
are advocating that we should unlearn. But shall I be recreant to these
memories and to the lessons which they taught ? I, who was the companion
of the men who so suffered from the effects of this lawlessness, north and
south—I their companion—and their brother-in-arms, who saw them endu-
ring hunger—and thirst—and cold—and heat-—and nakedness—and weari-
ness—and at last, meeting the supreme moment of their fate, when life it
self had become but an all-absorbing sense of throbbing, palpitating agony.
God do so to me, and more also, if my lips are so dumb—if my heart is so
cold—if I am so very a slave to momentary feeling and passion,—that 1
hesitate or waver to do my humble part to prevent the return of these hor-
rors of the past.
The Court here took a recess of fifteen minutes, when Mr. Haywood went
on as follows:
I am aware that I have said more than enough on this subject, and I now
address myself to the discussion of some of the facts of this case. This
Court is, in my opinion, quite as able to weigh the testimony in the cause as
the Counsel, and I have not spent, and shall not spend, a great deal of time
in its consideration; but, may it please the Court, I shall inquire into this
question of fact—among others—who fired the pistol shot which killed Arehy
Beebee ? I think I can show to the Court, before I finish, that it is totally
immaterial, to their decision in this case, whether Tolar fired that pistol or
not; that, even presuming it was fired by some one, who is not here named
in the charge and specification, if the Court is satisfied that the pistol was
fired by some one in the crowd at the market house, under the circumstances
given in evidence, and that these prisoners were, at the time of the firing,
acting, as the evidence shows them to have been, we have made out a case
of murder against all of them ; and it is a murder sufficiently alleged, as to
them, in the charge and specification now before the Court. Undue promi-
nence has been given to this point, in the evidence, in our efforts to ascer-
SPECIAL JUDGE ADVOCATE.
345
tain and identify the persons who fired the pistol; for whether the Court
shall come to the conclusion that Phillips fired it, or that Tolar fired it, or
that it was fired by some one to the Court unknown, if this Commission ac-
cept the rest of the evidence, offered by the prosecution, as proved—showing •
the relative position of the party who did fire—no matter wTho it was—with
reference to Tolar, Powers and "Watkins, and the manner in which they and
all of them were engaged at the time of the firing—they were all guilty of
murder, in the eyes of the law. But, chiefly in order to sustain the credit
of one or two witnesses for the prosecution, who, as I think, are entitled to
some consideration—partly because the Court may differ with me on the
points of law just suggested and to be hereafter more fully stated—and partly,
also, because the defence has given prominence to this point of fact, I shall
enter at some length into the question—" who fired that pistol ?"
One thing is apparent, at setting out, that seventeen men, white and black,
have been produced here by the prosecution, and have sworn that Tolar
fired it; that they saw him do it; and that there is no possibility that they
could be mistaken about it. One man, and one only—James Atkinson—
has been introduced for the defence, who swears, positively, that Phillips
fired that pistol. Several other witnesses, offered by the prisoners—as Pair-
cloth, Arev, Mullins andSykes—have given in evidence circumstances which
point directly towards Phillips as the man who fired the pistol shot; but it
is to be remembered, that it is admitted by the prosecution, and by Phillips
himself, that he had a pistol in his hand, and was standing near Beebee, be-
fore, or at, or just after the moment when the deceased was slain ; and bear-
ing this circumstance in mind, it is possible that the evidence of these four
witnesses may be true, or that it may be a very slight exaggeration of the
truth, and yet that Tolar may have fired the shot which slew Beebee, as the
seventeen witnesses for the prosecution testified. As no one of the four
witnesses named pretends to swear that Phillips actualled fired the pistol—*
indeed—as they all swear that they did not see him fire it—and so the act
of firing, which is of so marked and striking a nature, did not fix their at-
tention—it is even within the range of possibility, that they may have made
innocent misrepresentations in their testimony on this point. But Atkinson
swears positively that Phillips, while standing within a few feet of him, (the
witness) fired the pistol, the bullet from which slew Beebee. If this be so,
the firing must, necessarily, have attracted and absorbed his attention ; and if
Atkinson has told an untruth, as to this matter, he has perjured himself. There
is no possibility of accounting for his misrepresentations, on the ground of
inadvertence, inattention, incapacity, error, mistake, defect of memory, or
the like infirmity on his part. The same remarks, made upon Atkinson and
his testimony, are also applicable to the seventeen witnesses for the prosecu-
tion, and their testimony—to each and all of them—who have sworn that
Tolar fired the pistol. They told the truth, or they are perjured. There is
no possibility of innocent mistake on their part. So the question fairly re-
solves itself into this: Did these seventeen perjure themselves, or did this
one swear to a lie %
Suppose, may it please the Court, that a clock were set up in this room?
and eighteen men were placed in this apartment, under the strictest in-
junctions to observe the clock, and note carefully, at what hour the hands
pointed, when the clock first struck during their watch, and the number of
strokes sounded. Suppose, at the end of two hours, the eighteen were eal-
led out, and examined, upon oath, touching the matters given them in
charge; and seventeen say, upon oath, that the clock first struck when the
346
ARGUMENT OF E. G. HAYWOOD,
hands pointed to twelve o'clock, and that twelve strokes were sounded—and
the eighteenth says, that it first struck when the hands pointed to one o'clock
and that one stroke was sounded. They were put into the room, for the ex-
press purpose of noting these facts—their attention was especially directed
to them—they all had equal opportunities for observation—they are all men
of the ordinary general character for truth—they all knew they would be
subsequently called upon to testify, as to the matter, under oath. Which
yould the Court believe—the seventeen—or the one % Which ought they
to believe, according to the rules which regulate the force of human testimo-
ny \ . This is a practical illustration—and a fair illustration, of the question
how before the Court. Is not the Court bound, according to the rules of
law, which regulate the analysis and weighing of evidence, to come to the
conclusion, that the seventeen have sworn to the truth, and that the one is
perjured % Are not the probabilities overwhelmingly in favor of the truth of
the seventeen, and the perjury of the one ? Does not the presumption, in
favor of the seventeen, amount, almost, to a certainty, because of the fact,
that it is next to impossible to produce seventeen men, who can be induced
to combine, in a wilful, and corrupt perjury? This point of fact—as to who
fired the lethal weapon—fairly narrows itself down to a contest between the
seventeen men and the one, as to who has committed the perjury. Perjury
has certainly been committed—it lies at the door of the one, or the other.
There is no room for inadvertence—inattention—incapacity—error—mis-
takes—or defect of memory—on the one side, or the other. The events giv-
en in evidence, by all, were of too marked and, striking a character for
that—the opportunities of all parties for observation were too good. The
dilemma must be directly ,met, and solved—either Atkinson lied, or the
seventeen witnesses for the prosecution did—defying God, and in the face of
the country and of this Court. There is no option left with the Court; they
must embrace one proposition or the other—there is no middle course.
One of the Counsel for the defence, has expressed his surprise, that so many
men could be crowded together, within so small a space, as that which the
witnesses for the prosecution must have occupied, if these witnesses held the
relative positions towards the prisoner, Tolar, and the deceased, which they
represent themselves to have held; and, at first blush, it does seem some-
what remarkable. But, if with a radius of five feet, a man describes a circle
around himself as a centre, he will be astonished to find, how many persons
can, be crowded into the space so enclosed. Most of the witnesses for the
prosecution, who testified that Tolar fired the pistol, were within a circle,
which a radius of five feet would describe, around the point, where they rep-
resent Tolar to have stood when the pistol was fired—at any rate, very little
beyond that circle. There is room for a large number of persons within
such a circle, with a circumference of about thirty feet; certainly quite room
for seventeen men.
I ask the gentlemen of this Commission, with a view to fixing in their
minds, the very great force of the evidence offered by the prosecution, on
this particular question—the identity of /the person who fired the pistol, the
bullet from which caused Beebee's death—to locate in their mind's eye,
or on a bit of paper before them, the positions of the witnesses for the prose-
eution, who have testified that Tolar fired the pistol, with reference to To-
lar, as given in evidence by themselves. I think, I may safely assume, ta-
king the whole evidence for the prosecution, and for the defence together—
and if I am in error the Court will correct me—that Archy Beebee, at the
moment when he' was shot, stood just opposite the southern edge of the
SPECIAL JUDGE ADVOCATE.
347
small arch, wliicli is the soutli of the main arch, on" the. east face of the mar-
ket house—and ahont two feet from the curb-stone of the pavement, with
his face directed a little to the west of south. The man who fired the pistol
—the discharge of which slew the deceased—whoever,he was—stood—some
four or five feet from him—about two or three feet off of the pavement, in
the street, and to his left and rear. This is the best conclusion as to their
relative positions, at which I have been enabled to arrive, after a careful
comparison of all. the testimony, both for the prosecution and for the de-
fence; and it is the position assigned to Beebee, even by Atkinson, and also
by Mnllins—both of them witnesses for the defence. Now, here stands the
man who fired the pistol, about three feet from the edge of the pavement, in
the street, and to the left and rear of Beebee, not five feet from him ; and
we have a host of witnesses for the prosecution, all around the perpetrator
of the homicide—all of whom swear that Tolar is the criminal. Here is^
Matthew N. Leary, jr., whose character is unassailed, and unassailable, who
says—he was standing to the right, of the man who fired the pistol, and. to
his rear, about five feet. John Armstrong says—he was standing to tlieiin-
mediate left of Tolar, when he fired—nor do I think that Armstrong's testi-
mony is open to all the assaults which have been made upon it; it makes lit-
tie difference as to a witness's credibility, in a particular instance, whether
he is generally reliable or not, if his testimony is conformed in that instance,
by witnesses who are entirely reliable. Armstrong says—he was immediate-
to the left of the man who fired the pistol, with his (the witness's! breast, almost
against the murderer's left elbow. James, Douglass, was standing in front of
the man who fired the pistol, with his, (Douglass') back towards him, so that
when this man fired, he put his left hand on Douglass' right shoulder, drew
him out of the way, and fired *past him. Between Leary and the man who
fired his pistol, stood Lewis Smith. Square behind Armstrong—almost
touching him—and within five feet or six feet of the man who fired the
pistol, stood Ilenry Hagans ; a little further to the front than James Doug-
lass, and to his left stood Robert Simmons; and yet further to the front
of the man who fired the pistol, than Douglass was. Still a little further to
the front of him, stood Sam Toomer. Now, we have Leary just to the crim-
iiial's right and rear,- about five feet off; Smith directly behind him ; Arm-
strong just to his left; Douglass just to the front; Hagan's just oft here,—-
a little back of Armstrong ; Simmons just a little further to the front than
Douglass—and Sam Toomer still a little further to the front. Now, imme-
diately to the criminal's right, " square on his right," as he says, stood
David Oliphant; just a little to his rear and within three feet of him stood
James Ivendrick. At a little tree, on the edge of the pavement, a little fur-
ther to the rear, stood William Porter; Sam Phillips stood to the front and
left, and within four or five feet of the man who fired the pistol—and note
that I am stating all these positions with reference to the man who fired the
pistol. Old Tom Jenkins stood oft, at some distance, on the pavement, al-
most square in front of this man, and facing him. These witnesses were all
around the man, who fired the pistol, and they occupied eight different
points of the compass, and that too within a distance of five feet of him,—
say, some few, within eight feet of him. Now, without going through the
seventeen, let us select the witnesses located as above,—they were closest to
him. If tliey did not see—if they had not opportunities of seeing what
was done thereat that time, and who it was that discharged the lethal weap-
on—it is impossible for witnesses to have any knowledge. They had every
opportunity of seeing—there can be no' doubt about that; and there was a
348
ARGUMENT OF E. G. HAYWOOD,
circumstance, I may say, many circumstances—to attract their attention.
They might not have been looking at that man very particularly at first, but
at the drawing of the pistol and the firing,—at so exciting a time,—the flash
may be said to have burnt the fact and the memory of the fact, upon their
minds. Their attention was at once centered, absorbed. It might not have
been so absorbed if the pistol had not gone off—but the noise and flash, and
discharge, attracted the senses of hearing, sight and smell,—each and all op-
erating upon the subject matter before them,—within five feet of them. And
it they swear falsely as to the man who fired that pistol, they are perjured,
and there is no help for it. The Court must see that this is so.
I said early in this argument that the first rule ot law, in investigating tes-
timony was—that, if possible without violence or constraint, so to do, the
Court must reconcile all of it. Can you reconcile the statements of these
witnesses with that of Atkinson ? It is impossible. One set says Tolar fir-
ed the pistol, the other one, that Philips fired it. There is an irreconcilable
difference ; you cannot account for it on the ground of omission. You can-
Hot account for it on the ground that some of the evidence is positive, and
some negative. They each and all swear to a positive fact, and both sets
of witnesses cannot be correct.
The next step in the investigation, is as the law savs—where you do find
an actual collision in the testimony, such as there is in this case—that you
must decide, whether, you can reasonably attribute that collision to inad-
vertance, inattention, incapacity, error, mistake, or defect of memory, up-
on the part of one witness or the other. Now, there is no room for any er—
rors arising from these causes in the case in hand. The witnesses I havede-
scribed, maintaining the relative positions just mentioned, towards the
man who fired the shot, cannot be mistaken—-cannot be in error, unless per-
jured. There is no reasonable hope to acount for the collision because of
inattention, or of any other human infirmity merely. The pistol was fired,
find of course attracted the attention of all who were near it—the discharge
acted on all their senses. It is the same with respect to the witness, Atkin-
son, who testified that Phillips fired the pistol. Here was Atkinson stand-
ing on the edge of the pavement, directly behind Becbee—within five feet
of the man who fired the pistol, as he says, and " Sam. Phillips," he swears,
" fired it." "He saw him—there is no doubt about it." There is no possi-
bility of either side being mistaken in such positive statements. Either the
large number of witnesses for the prosecution, who have sworn that Tolar
fired the pistol, have lied, or the witness Atkinson has lied. Surely the Court
can come to no other conclusion. I shall consider presently the attempt
made to bolster Atkinson with other witnesses, but I am now considering
this collision which cannot be attributed to inattention, inadvertance, incapac-
ity, error, mistake or defect of memory. It can only be ascribed to false-
hood, wilful—deliberate—corrupt—damning—on one side or the other.
But, suppose the Court to come to the conclusion that there is a possibili-
ty of mistake upon one side or the other by which the inconsistency may be
accounted for, upon which side ought they to conclude that the mistake lies %
It is not more probable that one man, having a position for observation in
no way superior to that of several other men for seeing and hearing the fir-
ing of a pistol, should be mistaken as to who fired it, than that seventeen
men should be, who are standing all about at different places in several
reetions, in immediate propinquity to the man who fired the pistol, and ob-
serving him from several different points of new f But, if on the contrary,
the Court say that same one has lied, I ask you, in the name of reason and
SPECIAL JTJDGE ADVOCATE.
349
common sense, whether you can conclude that these seventeen men lied, and
the one man told the truth % Is it not more probable that James Atkinson
told a lie—for into that it resolves itself—and swore to a lie—than that
these* seventeen witnesses for the prosecution did so. The firing of a pistol
was one of those blazing, burning, facts, occurring in the midst of a crowd,
accompanied with circumstances, which must have attracted every one's at-
tention who was present. It these men differ, they do so in consequence of
corrupt falsehood on one side or the other—there is no getting around or
beyond that point.
But an effort is made by the defence to bolster up Atkinson's assertion by
the testimony of Mullins, of Arey, of haircloth, and of Sykes. These four
witnesses say—they almost saw Phillips fire the pistol. If I had not thought
that I had discovered perjury already on the part of Atkinson, I should have
thought it possible—barely possible—that these four witnesses were speaking
the truth—for their testimony is entirely reconcilable, with the fact, that
Tolar shot the pistol—at last. For these witnesses bring us up to the point
of time, immediately prior to the firing, and there drop off—they fail to see
who did fire the pistol—on this point their testimony is negative evidence.
There is nothing absolutely impossible in this. It is very possible for four
or more men to see everything that occurs in a crowd up to the moment,
when a pistol is fired, and yet to fail to see that. This failure of theirs to
see more, might certainly be attributed to error, incapacity, or inattention,
or something of that kind. But when four men, occupying absolutely and
relatively, different positions towards the man who fired, and towards each
other, are, by an extraordinary concurrence of different accidents, pre-
vented, just at the very crisis, from observing the most important fact of all—
why, I must be permitted to think that this extraordinary combination of events
is due to the fact, that the state of things, of which they speak, did not exist-—
and that they have lied, partially at least. Just look at it a moment. Here is
Mullins, who says he saw Phillips—he was close, to him—a short distance
behind the man who was shot: he saw Phillips present the pistol, and it
was thrust immediately out of his (the witness's) sight: he did not see Phil-
lips fire it: he did not see the pistol fire at all:—it disappeared 111 the crowd—
although every other -witness, who was looking, swears that he saw it plainly
enough over the shoulders of the crowd. Then comes little Arey : he was
standing in the small arch, on the east face of the market house, immediate-
ly by Beebee, or sitting on a bench there ; he saw the pistol in the hands of
Phillips pointed, thought it was aimed towards himself (the witness), and
was unfortunately so afraid of being shot himself, that he jumped down and
it was lost to his sight.
Faircloth had Phillips exactly at his right side, as he says, elbow to elbow.
He saw him present the pistol, but turned round and would not look. lie
always had had a habit of turning himself away when he saw a pistol about,
to be fired!! foe feae a piece of the cap would get ix his eye !!!!
Then comes Henry Sykes, for whom I felt very sorry while he was on the
st,and, and who really put everything in such a tangled condition, that I
have never been able to unravel his meaning yet. He hears everything in
the world, even to an exclamation from Phillips, " if you don't give him up
I'll shoot him"—which no one else did hear—he sees Phillips to the right
and rear of Sheriff Ilardie—a pistol goes off, and, immediately afterwards,
he sees Phillips with a pistol in his hand, which he was rubbing. But by
another unfortunate accident in this long chapter, Sheriff Hardie puts
350
ARGUMENT OF E. G, HAYWOOD,
his head in the way, just in the very nick of time, and Sykes did not see the
pistol go off.
Here are four men, who see all, up to the very point of time when the
pistol is about to be fired; they were all in different parts of the crowd—in
different relative positions,- towards the deceased, towards Phillips, and to
each other—and not one of them saw the pistol .fire. They all turned their
eyes away, simultaneously, or closed them, at this most interesting epoch—-
and it is one of the most curious coincidences I have ever known.
Now I ask the Court, in the name of reason and of common sense again—
when four witnesses come before you and testify as these have done—when they
bring you up to the very point of the firing of a pistol which slew a man,
and then break off, and see nothing more for a single instant, and imme-
diately after return to their previous condition of bright-eyed vigilance—
What do you think of them ? Is not the Court forced to believe that they
have lied? To believe—that either they did see the person, who fired the
pistol, and are unwilling to tell who it was—or that they did not see as much
as that to which they have deposed ? Is it not the most unnatural thing in
creation, that such a curious concatenation of circumstances should arise?
But that such things as these should happen, is not absolutely impossible—
especially in an excited crowd—and if we had not set out with a knowledge
of the direct collision—the irreconcilable difference—which exists, between
Atkinson on one side and the seventeen witnesses for the prosecution, on the
other, as to the agent who discharged the pistol—if we had no knowledge of
that thing, we might deem it possible, that Muffins, Arey, Faircloth, and
Sykes, had seen that to which they testified—or that any exaggeration of
what they had seen, was attributable to mistake or innocent error; such a
conclusion would be highly improbable, but still it would be possible. But
when the known fact, that one witness for the defence has wilfully and cor-
ruptly perjured himself, is added to this choice and curious testimony—to
which 1 have just been referring—on the same side,—human credulity can-
not accept the four witnesses as honest. A suspicion at once attaches to all
the evidence for the defence, and this Court, I am sure, will receive their
whole testimony with many grains of allowance. -
I am not presenting this case to the Court with any art—but naturally,
and as it presents itself to me. I am not selecting isolated facts from the
mass of evidence, and, of them, weaving a particular theory of the guilt of
all these prisoners. And so reasoning, I am forced to the conclusion, that.
Atkinson lied, when he swore, that he saw Sam Phillips fire the pistol whose
discharge killed Archy Beebee—that under some circumstances and condi-
tions, we might be able to accept the evidence of the witnesses Muffins, Arey,
Faircloth, and Sykes, as generally truthful, and the witnesses themselves as
reasonably honest, but to an extent mistaken ; but seeing that the defence
had already offered a perjured witness, that the whole of the evidence of
these four witnesses was built up with a view to sustaining that perjured
witness, and that their statements present such glaring and striking impro-
babilities, we are compelled, to lose all confidence in them—to regard them
as corrupt—and to view with suspicion all the testimony offered by defe'n-
dants who have called such witnesses. And, in the rebound, our minds
naturally and cheerfully accept the evidence of the seventeen witnesses offer-
ed by the prosecution, as true and credible—in which they testify, that
William J. Tolar, one of the .prisoners at the bar, was the immediate agent,
who fired the pistol, the buffet from which slew Archy Beebee.
And how have the prisoners met this view of the case ? They pounce up-
SPECIAL JUDGE ADVOCATE.
851
on three of tlie seventeen witnesses offered by the prosecution on this point,
and denounce them as unworthy of credit. I speak of the witnesses, Shaw,
Armstrong and Phillips. Shaw, they say was tied up, once on a time, by
the thumbs, for, cattle stealing. Armstrong's character for truth has been
questioned, even declared notoriously bad by several witnesses, and withal
he is a ginger-bread colored fellow, with' a cock-eye; and Phillips is an in-
former—an accomplice—an approver—a man who has turned State's evi-
dence, and is perjured besides, by his own admission.
But, I say, in reply, we can throw away the testimony of all these three
winesses we can admit, for argument's sake that it is worthless—and our
case stands quite as impregnable without their evidence as with it. We on-
ly lose three ot the seventeen witnesses, who prove the tiring of the pistol by
Tolar, and the other points material to this case, which were deposed to by
those three witnesses, have been fully proved by other witnesses, who can-
not be assailed successfully. I am consuming much time, and, as it is unnec-
cessary, I do not care to occupy the Court with a defence of Shaw and Arm-
strong—let the Court take them for what they are worth. But I think, that
Sam Phillips, who has been made the butt of the prisoners'unskilful archery,
is entitled to a fair representation in the court. Phillips is spoken of, by
the prisoner's Counsel—as one who has become State's evidence—this is not-
a fair statement of his position. He is declared purjared, by his oAn admis-
sions—because he sat upon the coroner's inquest in I ayetteville, which view-
ed the body of Archy Beebee, knowing all that he has deposed to here, and
suppressed what he knew, and failed to find a verdict according to his pri-
vate personal knowledge, and did find, according to the evidence, that wa&
•adduced before the jury, that Beebee came to his death by the hands of some
person unknown.
If the Court would consult the most learned men in the law, in this city;
or in this State, or in this county, they would learn, what I now state to be
law, that Phillips was sworn to find according to the evidence laid before the
jury—and not according to his private information—that he would have
been perjured had he acted on his own knowledge, without evidence offered.
I will even go so far as this—that a man may, without committing perjury,
sit upon a petit jury, while another man is on trial for his life, and find the
prisoner guilty, if the evidence so establishes, although this juror knows that
he himself committed the murder. *
Counsel for the accused : If a man sitting upon a petit jury knows of an/
matter that is pertinent and material to the issue, it is not his bounden duty
to make it known to the Court before sworn, to the end that he may be ex-
cused from the jury, and put upon the witness stand.
Mr. Haywood: I think it is his duty, undoubtedly, to challenge himself,
under such circumstances; but I do not think he incurs the guilt of perjury
by failing to do so.
I am not holding the witness Phillips up as a model of heroic virtue. I
have not put any lion's skin upon him,. I do not think he exhibited any
superhuman excellence by acting as he did ; but he^did as the majority of
men would have done under like circumstances; and I believe, before God
this day, that if Phillips had done his duty like a man, and stood forth and
declared who fired that pistol, on the day of the inquest in Fayetteville, that
he would have been himself hanged for the murder of Beebee, although he
was not guilty of it. I believe that the public feeling in that town was of
such a character that the same kind of evidence which has been introduced
here would have been either collected or manufactured against him, and hi*
ARGUMENT OF E. G. HAYWOOD,
performance of duty would have resulted in his own accusation, trial and
conviction—perhaps before this very Commission. It is probable that his
life was saved, either from this covert, or some more violent assault, by his
failure to do his duty in this instance. I do not say he is a man who dares
to do his duty under such risks as that; when a failure to do it involves him
in only a very venial fault; but I do say that he has not the guilt of perjury
upon his soul, because of that oath taken as one ot the Coroner's inquest in
Beebee's case. That a high-toned, strictlyjhonorable man ought to have felt,
and would have felt it to be his duty to speak out in such a dilemma, I am
prepared to admit. That is quite another question. But there are very tew
men who—under all the circumstances of popular feeling—of personal dan-
ger, and of partial ignorance—which surrounded Phillips—in the absence of
safe counsellors, would not have acted exactly as he did upon that occasion.
I am not saying but that he is in some sort blame worthy ; but I am say-
ing that he is not perjured, because he said upon the finding of the coro-
ner's jury, that the deceased came to his death by the hands of a person un-
known.
Here is the oath which he took : "You solemnly swear, upon the Holy
Evangelists of Almighty God,that you will jjweil and truly inquire upon view
and inspection of this dead body, liow the deceased came to his death, and
true presentment make, both of the means of death, and the person (if any)
who caused the same, as it may appear according to your evidence."
It is the same oath that is taken by the petit juror, when he is trying a
;caseon which a man's life is involved, so far as regards the evidence in which
each is to act; and it binds him to act upon nothing but the evidence which
is laid before him; if he acts on other information, he is perjured. The
moral obligation, which rests upon every citizen, cognizant of a crime, to
disclose it, is quite a different matter,—yet where so many were faulty, who
would have expected this man Phillips to have exhibited superhuman excel-
lence and virtue ? But not only was he not guilty of perjury, but he does
not stand before this Court, according to the ordinary acceptation of those
terms, as States evidence. A man who turns State's evidence is, properly
speaking, one who is charged by the State to be guilty, and admitting him-
self to be guilty of complicity in the offence on trial, comes forward and
exposes his accomplices. By the older system of practice in England, they
were called approvers. One of several men, charged with a common
crime, came forward, confessed and pleaded guilty, and then his sentence was
suspended until his accomplices were tried ; and in case he convicted his con-
federates, by his evidence—he wa^ let go free—and if he failed to convict
vict them, he was hanged himself. How, what I understand by a man's be-
coming State's evidence, is,—where one admits his own guilt, and either
pleads guilty and puts himself entirely upon the mercy of the State ; or
the State agrees to suspend further proceedings against him, and
thereupon, in his own testimony, admitting his own guilt, along
with the rest, he exposes and betrays others, his accomplices. Such a
one is under strong temptation to perjure himself. But that is not the po-
sition occupied by the witness Phillips in this case. He is a man as to
whose guilt the government is so doubtful, that they are unwilling to prose-
cute him—he at all times denying any complicity in the offences charged :
that is what our nolle prosequi means. Under these circumstances he come#
forward and gives his evidence in the cause, and, under oath, says he had
.nothing to do with this homicide whatever. His conduct and his evidence
are not liable to the same suspicions, which attach, when one confessing lii§
SPECIAL JUDGE ADVOCATE.
353
own guilt and complicity, yet exposes his fellows. If this position be the
■correct one, what fault, m the name of Heaven, are we to attribute to Phil-
lips for coming in here to tell the truth, when the government demands it
at his hands. He admits that he went to the scene of the homicide armed
with his pistol; he asserts that his intention in so arming himself was to as-
;sist the Sheriff, if he needed help to protect himself or his prisoner. He
made no efforts to conceal his pistol at the time, and since that time he has
made no concealment of the fact that he was armed with a pistol. He pro-
duced his pistol here upon request, and he permitted it to go out of his pos-
sesion, under circumstances, when several had access to it, even in the town
of Fayette V'ille, where active enmity and hostility were already to his knowl-
edge excited jjfagainst him, because he chose to do his duty, by testifying in
this case—and where it was watched from the time it left the hands of his.
brother-in-law until it was returned to his own keeping. If he had boe-Di
guilty of complicity in the murder, he never would have permitted that pis-
tol to have gone out of his own possession—that pistol, which his enemies
have endeavored to torture into telling such fearful tales against him.
Just suppose, for the sake of argument—and there is strong evidence that
it is true—that Phillips is entirely innocent of [this homicide—and why
should we suspect him of perjury? Why should we condemn him ? What
evil hath he done ? Above all, of 'what have the prisoners a right to com-
plain ? He sat upon the Coroner's inquest; he knew the facts of this case;
he had a friendship for Tolar; he did not wish to expose him; he was
swayed by the prevailing popular sentiment and his personal fears, and he
failed to do his whole duty to this extent—not being called upon to testify,
lie did not volunteer to disclose what he knew to the jury; he submitted to
arrest; he said nothing; he disclosed nothing; he came up to this city in
military custody; and finally, after a few days' imprisonment, under the
pressure of the harshest circumstances of personal inconvenience and danger
to his life, he did what he ought to have done at first—he disclosed to those
in authority here what he had failed to disclose before, the Coroner's jury,
although he knew, at the time he made the disclosure, that such a course
.was fraught with danger to himself, and that efforts would be made, by To-
lar's friends, to prove that he was the principal felon—" The very head and
front of his offending—hath this extent—no more."
This witness, Phillips, and John Armstrong seem to be particularly ob-
noxious to the Counsel for the prisoners, upon their devoted heads the
vials of the vicarious wrath of these defendants have been poured from first
to last. The Counsel for the defence are fastidious. We cannot produce
witnesses whose bearing is to their taste. We introduce Armstrong, and he
is denounced as too-willing a witness—a witness whose feet are swift to shed
blood! We introduce Phillips, and he has retained his evidence too longt
The Counsel select two of our witnesses, who, as they conceive, are most
hurtful to their cause—and one, as they say, has held back his evidence
too long, and therefore he is not to be trusted. The other was too swift, and
therefore he is not to be relied upon. How I confess I was very much
struck with the testimony of Mr. Phillips and his bearing on the stand. I
thought, under the painful circumstances in which he was placed, he bore
himself manfully—patiently—in every respect, well. I have no doubt that
the story he told here was the true one. That is a question for the Court,
however, upon which they no doubt will exercise their own judgment, and
form their own opinion. But so far as my individual endorsement and
354
ARGUMENT OF E. G. HAYWOOD,
opinion will go, I purposely and publicly say here, that I have no doubt of
its truth.
But the Counsel for the defence—not being able to successfully encounter
the evidence of the seventeen witnesses for the prosecution, who testified
positively to the fact that Tolar fired the pistol which killed Beebee—either
with their witness Atkinson alone, who swore that he saw Phillips fire that
pistol, or with their witness Atkinson, as partially supported by the extra-
ordinary testimony of their four other witnesses—Mullins, Arey, Faircloth
and Sykes—who succeeded in seeing Phillips do everything else necessary
to their case but fire the pistol—and being unable to overthrow the positive
evidence of these seventeen witnesses, by ineffectual attempts to discredit
three of them—Phillips, Armstrong and Shaw—have yet another gun in re-
serve. They propose to prove, negatively, and by a sort of limited alibi,
that Tolar did not shoot that pistol, and that he Was in the crowd at least ten
or twelve feet from the point where the man stood, whoever he was, who
did fire it.
The witnesses, upon wThom the prisoners rely for this proof, are Mrs. Pa-
vis, Ichabod B. Davis, and Leggatt, Lutterloh, and E. P. Powers, to whom
must be added the witness Mullins, already noticed in this address in another
-connection. As to Mrs. Davis, the wife of a respectable dentist in Fayette-
wille, I have nothing to say. She is no doubt a very excellent and respect-
able lady, and intended to testify to the truth—place awx dames—but ac-
cording to her own account her acquaintance with Tolar was very limited1;
she had not known him before socially.; she gave but a momentary glance
to the whole scene; she was at a considerable distance from it, in an upper
story of a building, say forty or fifty yards distant; and allowing for the de-
eeption to which, according to the laws of perspective, the most accurate ob-
server is subjected in such cases, her evidence, entirely admitting the up-
Tightness of her intentions, cannot weigh, for an instant, against the evidence
of the eight or ten witnesses for the prosecution, who profess to have occu-
pied a position within five or six feet of the spot where Tolar stood at the
time the pistol was fired.
But Mr. Davis— Ichabod, whose glory has departed—not the husband of
the lady just named—but, like the Alexander whom St. Paul has made al-
most as notorious as Alexander the Great, a coppersmith—deserves to be
mentioned at greater length. He testified, that he was standing nt the
north-western corner of the street pavement, directly opposite the south-
eastern corner of the pavement which runs along the east front of the market
house, and about fifty or sixty feet from the market house pavement, at the
moment that Archy Beebee was shot, and for eight or ten minutes previous
to that point of time; that he was at "that same place while Beebee was up
stairs in the town hall—when he descended the steps—when he passed along
the market house pavement—and when the pistol was fired which caused his
death; that from the first instant when he (witness) took his position as
above, until Beebee was shot, and at the moment he was shot, which covered
a space of time that was certainly five, probably eight, and perhaps ten min-
uies in length, he had his eyes intently fixed on Capt. Tolar; that he never
lost sight of him (Tolar) for an instant; that his attention was attracted to
Tolar by the fact that he (Tolar) was a very tall man, and was remaining
motionless, while the rest of the crowd, which was in front of him, was in
some commotion; that Tolar did not fire the pistol which slew Archy Bee-
bee; that he cannot tell who did fire that pistol, not having seen the person
who fired, nor his pistol; but that he heard the report of it, and saw the smoke
SPECIAL JUDGE ADVOCATE.
355
of it; and that the report was heard, and the smoke was seen by him, at a
point out in the street, east of the market house, off of the market house
pavement, near the curbstone of said pavement, and a little to the right of
the south east corner of the market house, while Tolar stood at that instant,
and for at least five minutes previous thereto, directly opposite the centre of
the main arch which forms the eastern entrance of the market house, in the
middle of the pavement, at least ten or twelve feet from the point where the
pistol was fired, and as many feet from the point where Archy Beebee fell.
This is, I think, the substance of Davis' testimony, which covers just eight
or ten minutes of time, outside of which he refused to know or to testify to
anything—except that just after the firing Leggett passed him (witness) as he
stood at the corner, and then again passed back by him with a Mr. Burns.
Now it may be that the Court can credit this testimony, but—as human
credulity has its limits,—I do not think that they will. It has every mark
of contrivance and practice about it, which testimony can have—and it bears
a palpable and absurd lie upon its face. Who can believe, that any man,
in the midst of the excitement which necessarily must have prevailed in the
crowd that day, deliberately, and fqr no other reasons than those given by Da-
vis—kept his eyes intently fixed upon another moil, for the space of from five
to ten minutes, when there was a mad mob, between the witness, and the ob-
ject of his fixed attention, engaged in the very act of taking away a fellow
creature's life ? Leggett, the next witness introduced for the defence, testi-
fied that he was standing on the pavement by Tolar—in front of him—
was taller than Tolar by two inches—and was perfectly still—at
the time of the firing of the pistol. What then becomes of the absurd rea-
son, with which Davis accounts for his fixed gaze at Tolar ?
But the marks of artificial testimony, are seen in every part, of this evi-
dence ; it is confined to exactly eight or ten minutes of time—it is bald and
destitue of detailed circumstances—and then, one extraneous circumstance—
the fact that Leggett passed and repassed the witness, just after the firing—
is voluntered, to give the testimony a natural appearance; and it comes out
later in the case, from Leggett himself, that this particular—natural—eir-
cumstance, relied upon by Davis to buoy up his testimony, was named to
Leggett by Davis after he, (Davis,) had testified, as one of the points that he
(Leggett) was to be sure and mention in giving in his evidence.
I can hardly suppose, that the Counsel for the prisoners, expect this Court
to be so credulous as to accept this testimony as reliable. But " to make as-
surance doubly sure," Leggett, Lutterloh and Ed Powers, are introduced by
the prisoners just after Davis, and each, and every, and all of them positively
swear, that Tolar was in conversation with them, for twenty minutes, prece-
ding the killing of Archy Beebee; that he was not in the position assigned
to him by Davis three, nor one minute, preceding the appearance of,
Beebee, out on the pavement, at the Eastern front of the market house; but
that Tolar was under the market house with them, just at the mompnt, or
just after Beebee moved out of the same arch—and that Beebee was killed
about one minute after he passed the arch.
It is certain' therefore, from the prisoners' own showing, by their own wit-
nesses—either that Davis mistook some other person for Tolar—or that he
has wilfully and corruptly perjured himself; either alternative wall answer
our purpose, but we are inclined to embrace the latter—having, as we think,
already discovered the signs of corruption in other parts of the testimony for
the defence—and also from the whole intrinsic character of Davis's testi-
rnony.
356
ARGUMENT OF E. G. HAYWOOD,
But, say the prisoners' Counsel, Davis, as well as Leggett, and Lutterloli,
and Bowers, concur in this—and the evidence of Mullins is to the same ef-
feet—that Tolar was standing in the spot assigned to him by Davis,
at least twelve feet from the point where the pistol was fired, and
as many feet from the point where Beebee fell—at the very moment when
the pistol was fired. This is so in a degree. But can it be, that these pris-
oners introduce such witnesses here, as Leggett, Lutterloh, Ed. P. Powers—
and I may add Sykes—and seriously expect this Court to give any weight
to their testimony—all of them witnesses, as it appears in evidence, who
are now under arrest, awaiting trial, for complicity in this very crime, which
we are concerned at present in investigating—witnesses who might have
been included in this very charge and specification, if we had known what
we know now, at the time the charge was preferred, and who would then, by
a rule of law, have been excluded from testifying—witnesses against whom,
although they were not on trial, and the prosecutiou had no interest in ma-
king out proof against them, the case incidentally made by the rest of the
evidence in the cause—exclusive of their own—was so strong that the Court
is compelled to see their complicity—or, at least, to strongly suspect
it ? "Why, the defence might as well expect, the Court to call the prisoners
from the dock, and hear their own affidavits of their innocence, and accept
them as full proof of their guiltlessness. I do not believe the judgment of
this Court will be one whit swayed by the evidence of Leggett, Lutterloh,
Ed. Powers, and Sykes, wherein it was favorable to the prisoners, and them-
selves—they are all in the same boat—at least their boats are very close togeth-
er—and must, in all human probability, sink or swum together. And it was
a fearful position in which to put these young men—to thrust them upon the
stand in this case. It wTas not our look out—we did not put them there—
but, guilty or innocent,' it was a fiery trial to their virtue, their honor, and
their uprightness—a trial out of which poor, frail human nature, according
to its ordinary constitution, could not pass unscathed.
Accordingly, as was to be expected, under the circumstances in which
they were placed, Legget, Lutterloh, and Powers, agree in some general
statement, most of which are damaging to them and the cause, which they
espouse—but the instant we descend to details, they are as wide apart as in
the nature of the case they can wander. It must be remembered that these
witnesses have had free opportunities of intercourse, are men of intelligence,
and alike feeling an interest in the result of this trial, must have conversed
with one another on the subject. It must also be remembered that they
were present before, during, and at the time of the killing, and therefore can
give an accurate account of such parts of the transaction as they desire shall
go into evidence—and an appearance of truth to much of the rest of their
testimony; making due allowances for these facts and conditions, their evi-
,dence is as wide apart on points as to which they could not prepare, as the
strongest advocate of the perfection of the common law rules, of evidence
and of, detecting suspected witnesses, could desire.
I shall point out some of these discrepancies for the consideration of the
Court—but before doing so, and as part of the process of so doing, I wfisli to
remark upon some observations which fell from my brother Fuller. lie
seemed to think—as well as I understood him—that it was a natural vari-
ance in testimony and not at all suspicious—that different witnesses to the
same facts, should locate the persons concerned in a transaction, at points far
apart—say several feet apart—although the witnesses professed to have oecu-
pied the same relative position towards those persons—to have been looking at
SPECIAL JUDGE ADVOCATE.
357
them from the same point of view. To use a strong instance for an exam'
pie—as in this case, tbatLutterloh should swear, he was standing by Ed. Potc
ers, and Powers should swear he was standing by Lutterloh, at the time the
pistol fired—that both should testify they were facing in the same direction,
and that but one pistol fired, when Beebee was slain—and that Lutterloh
should testify, that pistol was fired from behind him where he could not see
it, very near his left ear, and E. P. Powers should testify, that pistol was fir-
ed eleven feet in front of him, where he could plainly see the smoke and flash,
nearly directly to his front and a little to his left. Now in those views of
my brother Fuller, I cannot concur; variances in statements and estimates
of time—variances in the statements and estimates of distances—are to b©
expected; but in most instances where witnesses vary in the statement oi
positive or relative positions or locations of things and persons, one witness
or the other, or both the witnesses are perjuring themselves.
I beg that the Court will understand me—one man may remember a part
of a scene—and another an entirely different part of the same scene, at which
they were both present; one man, during a commotion, may see or hear one
set of persons or things, and a second may see or hear a different set of per-
sons or things ; but if two men profess to have seen and heard the same set of
persons and things, at the same point of time—they will necessarily locate
those persons and things in the same positive and relative localities and posi-
Hons, in narrating the scene, if the witnesses are honest; and especially is
this the case, when the two witnesses were professedly standing near togeth-
er, looking at the scene from the same point of view. I shall not spend
time, in a metaphysical disquisition, to show why this is so. It is a simple
law of the mind on which every artificial system of memory rests. It is a
principle wonderfully illustrated, in this very case—out of two score witnesses,
or there-abouts, who have testified both for prosecution and defence in this
case, as to the positon on the pavement of Archy Beebee at the moment he
was shot—with very few and rare exceptions—you might cover the different
points assigned for the fall of the deceased, within a circle, whose radius does
not exceed twelve inches.
Now note what the four witnesses, Davis, Leggett, Lutterloh and Powers,
say of the position of Beebee, about the time he was shot. Davis says
" Beebee fell about .the south-east corner of the building,"—Leggett says
" Beebee stood near the corner, near the outer eastern edge of the pavement,"—
Lutterloh says " Beebee was opposite the southern edge of the small arch,
about the centre of the pavement,"—and Powers locates him in about the same
way, at the same place.
Compare the statements of some of the other witnesses for the defence
with these statements and with one another. Atkinson says-—" Beebee
stood'about the center of the pavement, opposite the southern edge of the
small arch, about two feet from the outer edge of the pavement"—Mullins
says "Beebee was about the southern side of the small arch, near the south-
era corner of the market house, about the center of the pavement"—Fair-
cloth says, "Bebee was opposite a point within eighteen inches of the corner
of the market house, near the edge of the pavement, about three feet on
the pavement."—Arey says " Beebee was opposite about the middle of the
small arch, when he stumbled—about four feet from the arch—and remained
about the same spot—until he was shot." I do not pretend to use the ex-
act language of these witnesses, but I think I convey their exact meaning,
and the words are very nearly the same; and so I might go on with the state-
ments of not only nearly all the witnesses fQr the defence, but with those of
358
ARGUMENT OF E. G. IIAYWOOD,
the witnesses for the prosecution—which are to the same effect. But com-
pare the statements of Davis, Leggett, Lutterloh and Powers—and also the
statements of some of the other witnesses for the defence, fixing the point
in space where the man stood—whoever he was—that fired the pistol, which
killed Beebee, and notice the difference—yon do not find the same coined-
dence. Davis and Sykes place the man beyond the corner of the east front
of the market house, in the street, off of the pavement, to the right of the
south-east corner of the market house, as you face east. Faircloth locates
him in the middle of the pavement, opposite the pillar which separates the
main arch on the east front from the small southern arch, on the same front.
Lutterloh testifies—that the man who fired the pistol was behind him and to
his left, and that he, (witness) was facing to the south, and stood about the
edge of the pavement, opposite the middle of the main arch, on the east
front of the market house. Atkinson, Leggett, Powers, and Mullins, locate
the firing of the pistol, at about the point indicated by the witnesses for the
prosecution—nearly all of the seventeen referred to before—off of the pave-
ment, and about five feet to the left and rear of the deceased. The point
indicated by Davis and Sykes, is some twenty feet from that deposed to by
Lutterloh—some ten or twelve feet from that which Faircloth gives in evi-
dence—and some six or eight feet from the point to which Atkinson, Powers,
Leggett and Mullins swear. Just after the pistol fired, several of these wit-
nesses profess to have seen Phillips with a pistol in his hand—and to de-
Scribe what he was doing with it. Powers says Phillips moved towards him
just after the pistol was fired, which killed Beebee, holding a pistol in both
hands and said—"Powders look at that pistol, and see that all the barrels are
loaded," that he (witness) said "all right"—and turned to take the pistol,
but Phillips put it behind him, under his coat, and moved away. Mullins
says—-that just after the pistol was fired, Phillips drew back a pistol, flour-
ished it in the air, said " the negro is dead, but I didn't kill him "—and
' then returned the weapon to his left breast pocket. Atkinson swears most
positively that he saw Phillips jive the pistol which killed Archy Beebee—
draw it back-—elevate it a moment and return it to his left breast pocket—
but he swears as positively that he did not flourish it in the air, and did not
,say "the negro is dead but but L didn't kill him"—but was perfectly silent.
Sykes says that Phillips had a pistol in his hand just after the firing, and
he was rubbing it on the right side of the leg of his pantaloons—as if to
remove the signs of a recent discharge.
r Now, may it please the Court, how is it, that these witnesses for the de-
fence concur so completely—so entirely agree with one another, when de-
scribing the locality in which Beebee stood, when he was slain, and differ so
widely when deposing to the position from which the pistol was fired,
which slew him—and in describing the movements of Phillips just after the
firing? Is it not apparent, that their opportunities for observation of all
of these particulars was the same—and that they concur in their statements
•as to the first particular of Beebee's locality, because they are swearing to a
fact which they home no interest to misrepresent / but in the last particulars,
they are, either mistaken—some of them must be mistaken—or are corruptly
swearing to matters which did not come under their observation, and which
they have an interest to misrepresent ? If these witnesses really saw the
inan who fired the pistol, which killed Beebee, or really saw the flash and
smoke of the pistol used, is it not certain, that their agreement would be as
perfect in their statements of the particulars connected with this man, or
SPECIAL JUDGE ADVOCATE; 350
this flash and smote, as is their concurrence in their statements, with refer-
enSe td the deceased, his locality and his movements ?
Bnt all these observations immediately preceding, aiid this tedious com-
parison of evidence, has been made by me, but as inducement to the main
point out of which it grew—and that was, to show, how little credit is to be
given to the evidence of Davis, Leggett, Lutterloh, and Powers, in their at-
tempt to prove a limited alibi for Tolar. I have set out Davis testimony
and have shown how completely his statement is Contradicted by that of
Leggett, Lutterloh, and Powers-, in one particular—in-asmuch as Davis
swears that Tolar was standing out side of the market house in the middle of
the pavement fo'r five or ten minutes at the very time when Leggett, Lutter-
job and Powers, swear that Tolar was in conversation with them under the
market house. It remains to compare the testimony of the three witnesses
last named as to the position of Tolar, about the very instant when Eeebee
■ was shot—Lutterloh does not profess to have seen Tolar at that moment,
but he undertakes to give us the positions of Powers and Leggett—who in
their turn undertake to locate Tolar with reference to themselves. Lutterloh
says, he (witness) stood—" about the edge of the pavement, opposite the cen-
tre of the main arch on the eastern front of the market house," and accor-
ding to his best impression "he was facing south and Leggett and Powers,
were facing in the same direction, in one line with him across the pave-
ment." I do not pretend to give the witnesses exact wrords, to avoid prolix-
ity—I endeavor to convey his exact meaning, as I apprehended it—and the
same remarks are applicable to what I shall say of the evidence on this point
of Leggett and Powers. According to Lutterloh's statement these three wit-
nesees stood thus:
P
<
[] Lutterloh.
[] Powers.
Q Leggett,
XJl
Leggett says—that—"he stood, together with Lutterloh, Powers and To-
lar all facing south, about the middle of the pavement, and opposite a point
a little south of the center of the main arch ; that he himself was stationed a
little to Tolar's left, and a little to his front, and nearer the middle of the
pavement than Tolar—that Lutterloh was to his (witness's) right and front,
and that Powers was also farther to his (witness's) right and front than Lut-
terlohaccording to Leggett's statement, Tolar and these three witnesses
were located thus:
p
□ Leggett.
Tolar. [] [] Lutterloh.
[] Powers.
m
Powers says, that—" he, with Capt. Tolar, stood about the middle of the
pavement, nearly opposite the central point of the main arch—that Tolar was
very near him, to his right and front, that Leggett was farther to Tolar's rear
300
ARGUMENT OF E. G, HAYWOOD,
than he (witness) was, and to his (witness's) right, and that Lntterloh was to
his (witness's) front and left, and near him"-—according to Powers' statement
' Tolar and these three witnesses, Were located thus
13
hj
p
<1
CD
B
CD
P
Leggett. []
[] Lntterloh.
[] Powers.
[] Tolar.
m
Kowl beg the Court to note the diversity. The question is one of topog-
faphy—one of location—the point is one to which the attention of these three
witnesses was seriously and particularly drawn immediately after the act of
killing was done, by the unsuccessful charge of homicide made against Tolar
before the coroner's inquest; and if these three men were really standing
With Tolar, as they describe themselves to have been, the very moment that
memory recalls that fact, it will instinctively present it as it actually was
in all its particulars, and their statements if truthful, must correspond with
one another. To take a fhmiliar illustration, let any gentlemen of this Court
who has lately attended a dinner party, endeavor to recall the scene, and he
will find he can at once locate the guests in their positions around the table
with very little difficulty. It is said the principles of the art of improving
the memory, were discovered in this identical way—and I give the story for
what it is worth. Simonides, the Greek poet, was employed by Scopas, a
rich Thessalian nobleman, to compose a song, in commemoration of a victo-
ry gained by him, at the Olympic Games. This was sung, at a banquet
given in honor of the occasion ; but Scopas was so displeased, that part of it
was occupied with the praises of Castor and Pollux, that he refused to pay
the poet any more than half of the stipulated reward, as he had received but
one half the praise, and he said that Simonides, might, if he pleased, apply
to his friends the Tyndaridce, for the rest. Shortly after this, and while he
was yet at the feast, a message was brought to Simonides, that there were
two young men at the gate, anxious to speak with him—when he went out,
he found no one; but while he was searching for the two young men, the
banqueting hall he had just left fell down, crushing to death Scopas and all
who were with him. Their bodies were so mutilated that they could not be
recognized, but Simonides, by calling to mind, the place which each one of
them had occupied at the feast, was able to distinguish them; and hence at-,
tention was first directed to the important aid afforded to the memory by the
observations of positions and material objects.
And hence I confidently assume the position, that if Leggett, Lutterloh,
and Powers were standing with Tolar at the moment when Beebee was shot,
as they have testified they were, at the point on the pavement to which they
testify—they would have little or no difficulty in locating themselves and
Tolar—and they would necessarily agree in stating Tolar's position, and
their several positions relatively to him; and the fact that they do not thus
agree, is strong evidence, that the state of things to which they swear never
existed ; and either they have permitted their imaginations and their fears
to mislead them—or they are corruptly false. The defence must embrace
one alternative or the other and either is sufficient for our purpose.
May it please the Court: I have said all that I intend to say on the ques-
-tion of fact, "who fired the pistol, the bullet' from which slew Archy Bee-
special judge advocate.
361
bee ?" and I think the Court will be satisfied, that the evidence of the eev-
enteen witnesses for the prosecution, who have sworn positively that tliey saw
and heard Tolar fire the pistol, is not shaken—either by the positive evi-
dence of Atkinson that he saw and heard Samuel Phillips fire the pistol;—
or by the assaults made upon the credit of Shaw, Phillips and Armstrong,
three of the several witnesses above referred to—by the prisoner's Counsel,
and some of their witnesses—or by the negative evidence of Ichabod B. Da-
vis, that Tolar did not fire that pistol—or by the attempted proof of a limi-
ted alibi of Tolar, by the witnesses, Leggett, Lutterloh, E. P. Powers, Mul-
fins, and Ichabod B. Davis. And I beg the Court to observe, that in press-
ing this point, I have rested .it upon the positive affirmative evidence of
these seventeen witnesses for the prosecution alone ; and have not sought
Corroboration from incidental circumstances, from which I might have ob-
tained aid.
For example—I have not used the conversation of Tolar with Daley, the
sexton, who buried Beebee, during which Tolar paid the sexton, for digging
the deceased man's grave; because I preferred to rely upon the forcb of the
evidence of seventeen concurring witnesses, and because, of this circumstan-
tial evidence, while it strongly tends to prove that Tolar was implicated in
the killing, does not so strongly, nor necessarily indicate his hand as the one
which fired the lethal shot. So I have not dwelt upon the pistol ball taken
from Beebee's head, which being examined and weighed, does not natural-
ly adapt itself to the pistol given in evidence, admitted to be the one in
Phillips' hands on the occasion of the homicide; because I fear, that at last
this bullet throws very little light on the case—and even if it fit Tolar's pis-
tql, might fit a hundred others. So the conversation detailed by James lie-
hfeel, in which Tolar said to Powers—"Tom, you grab him, and break the
ice, and we'll put him through,"—and so of other declarations given in evi-
dence as having been made by Tolar; because the more direct tendency of
this evidence is to show Tolar's complicity in a plot, to visit condign punish-
menton Archy Beebee, and not necessarily to prove that he was the immediate
agent who slew Beebee. So the exclamations in the crowd, just after the
homicide—"Capt. Tolar shot him!" "Tolar, Tolar, killed him"—and the
like; for all this is but circumstantial, and not direct, evidence that Tolar
fired the pistol which slew Archy Beebee. And so on, I might multiply
these attendant circumstances—of which I have made no use in arguing this
question of fact; for it was my intention to rest this point—and I do rest
it—upon the force—the weight—which the Court must give to the concurring
testimony of seventeen men, at least twelve of whom there has been no' at-
tempt to impeach by the prisoners. And so treating the point, it does seem
to me that this Court are forced to the conclusion that the whole evidence
overwhelmingly preponderates in favor of the hypothesis, that William. J.
Tolar fired the pistol, the bullet from which slew Archy Beebee. If Tolar
did not fire it, may God help him, for circumstances are fearfully against
him. And if he did firO it, according to the admissions of the Counsel for
the prisoners—and the definition of murder, as hereinbefore given by me
from many authorities—he at least is guilty of murder.
May it please the Court: the Counsel for the defence have laid down two
propositions, which they contend contain the law of this case: first, that, in
.order to find the prisoner Tolar guilty of murder under this charge and spec-
ification, we must show that he fired the pistol which killed Beebee; second,
in order to find the prisoners Powers and Watkins guilty, we must show
that when Tolar fired this pistol, Powers and Watkins were present and
362
.ARGUMENT OF E. G. HAYWOOD,
were in a conspiracy, combination, or confederacy witli Tolar to kill Beebee
or to do liirn some great bodily harm, and that Tolar fired the pistol in the
prosecution of the common unlawful design. I cannot assent to these prop-
ositions. I think there are views of this case, which I shall hereafter present,
in which the Court will be compelled to convict Tolar of murder, though we
utterly failed to make out that his hand directed the pistol which killed
.Beebee—points of view in which the identity of the person who fired the
pistol which slew Beebee is a matter of no importance whatever. And 1
think there are also views of this case in which the Court would be in duty
bound to convict Watkins and Powers of murder, though we failed to show
that Tolar's hand directed the pistol which slew Beebee, in the prosecution
of an unlawful design which was common to all three, and though we did
not even offer evidence to establish, as an independent fact, any conspiracy,
combination, or confederacy, between Tolar and the two other prisoners at'
the bar, to slay Beebee, or to do him some great bodily harm.
But I have met the defence upon their own ground on one point—and
have shown that Tolar fired the pistol which killed Beebee; and before I
am through with this address, I shall meet them upon their own ground, on
the other point also—and shew as an independent fact, that there was a con-
spiracy, combination, and confederacy between Tolar, Powers and Wat-
kins, to kill Beebee, or to do him some grevious bodily harm, in the prose-
.cution of -which common design, he was killed by Tolar—by evidence as
cogent and conclusive as it is usually possible to offer on such a point.
And then I shall ask the Court, according to the admissions of law of their
own Counsel, to find these defendants all guilty of murder. '
But I have now arrived at that point in this argument, where we are nat-
urally, to consider, the law and facts of this case, applicable to the charge
and specification, wherein their allegations apply to the defendants Powers
and Watkins. Tolar is charged as the immediate actual apparent perpetra-
tor of the homicide—in legal terms—as principal in the first degree; Powers
and Watkins are charged as aiders and abettors of the felony, or in the lan-
guage of the law—as principals in the second degree. There is no difference
in the grade of the crime, Or in the character of tlie guilt, of principals in the
first, and principals in the second degree; but for many reasons, I think it
well to clearly .define the meaning of these legal terms.
A principal in the first degree, is one who is the actor, or actual perpetra-
tor of the fact—a principal in the second degree, is, one who is present aid-
ing and abetting in the commission of a felony.
(Foster's Crown, Cas. pp. 347, 349. Wharton on Horn. pp. 155, 157.)
Or to use the broader, and more clearly expressed definition of Bishop. In
felony, a principal of the first degree, is one who does the act, either himself
directly, or by means of an innocent agent—a principal of the second degree,
.is, one who is present, lending his countenance and encouragement, or other-
wise aiding while another does it.
(Bish. on Crim. Law, vol. I, sec. 296.)
We have but little more to say of principals in the first degree—but to
prove one to be & principal in the second degree, it must be proved—first—
that he was present when the offence was committed; yet it is not necessary
to show, that he was actually standing by, within sight or hearing of the
fact. It is sufficient if he was near enough to lend his assistance in any man-
ner to the commission of the offence. (2 Stark, on Ev. p. 7.) And in general,
if a party be sufficiently near, to encourage the principal in the first degree
SPECIAL JUDGE ADVOCATE.
363
with the expectation of immediate help or assistance in the execution of the
felony he is in point of law present.
It must he shown secondly, that he teas aiding and abetting—which terms
seem to include every species of assistance, which one present can give anotli-
er, either in act, or by his assent, or by his encouragement, or even by his
readiness to further the unlawful purpose. For it any one comes for an un-
lawful purpose, although he does no act, he is a pricipal in the second degree:
(Fost. Cr. Ca. p. 350. 1. Hale P. C. pp. 374,443. 2. Stark, on Ev. pp. 10,11.)
And let the Court observe—that—the allegation that a defendant was
aiding and abetting in general implies an assent to the principal act. And
this assent must he proved by the prosecution—but the proof may be made
in two ways—either by evidence of some act directly done in furtherance of
the commission of the principal crime, ■which manifests the assent of the ac-
cused—as by evidence of his keeping watch, while others in his presence
break open a house—or by evidence of a conspiracy, combination, confedera-
cy, agreement, or understanding, between himself and the immediate crimi-
nal agent, in the prosecution of an illegal object, in the execution and fur-
tlierance of which the criminal fact was committed.
And I ask the Court also to note that this last proposition has the qualifi-
cation that generally-—not always—the allegation of aiding and abetting
implies an assent to the principal fact; for there are cases known to the
law where all that is implied by these terms is an assent upon the part of
the defendant to some criminal fact, and not an assent to the particular spe-
cific criminal fact, in which the guilty assent resulted—according to a princi-
pie of the law we have already noticed while considering the general law of
homicide, when speaking of the guilt of the intent and the guilt
of the fact—and to which we shall have occasion to recur again. As in case
murder were committed by B, in prosecution of an unlawful design—proof
that A came to assist and carry that design into execution-—though it were
only a bare trespass—in other words evidence of his assent to the trespass—
would be proof of his aiding and abetting the murder, on which to convict
him as principal in the second degree. (Kel., 116 ; Fost. Dis., c. 3, sec. 8.)
Flow a careful examination of these few-legal propositions will plainly dis-
close to the Court, wThen it is incumbent upon • the prosecution to make in-
dependent-proof of a conspiracy, combination, confederacy, agreement or un-
derstanding between the felon, who is the immediate perpetrator of the
criminal fact and those who are charged as principals in the second degree,
before we can ask for a conviction of the latter, and when such proof is
unnecessary. This examination will show that the law recognizes two kinds
of presence, and two kinds of aiding and abetting—an actual presence and a
constructive presence—an actual aiding and abetting, and a constructive aid-
ing and abetting. To make a defendant guilty as a principal in the second
degree, the prosecution must prove both his actual presence and his actual
aiding and abetting; or his constructive presence and his actual aiding and
abetting; or his actual presence and his constructive aiding and abetting ; or
his constructive presence and his constructive aiding and abetting. When
the prosecution is prepared to prove both an actual presence and an actual
aiding and abetting, (and such is our case,) there is no necessity to prove the
independant fact of conspiracy or combination; and it is only where there is
a failure^ to prove either an actual presence, or an actual aiding and abetting—
either one or the other—that it becomes necessary to prove a conspiracy
or combination, or confederacy, as the means of establishing either the con-
structive presence or the constructive aiding and abetting.
364
ARGUMENT OF E. G. HAYWOOD,
(2 Stark on Ev., p. 12. State vs. Simmons, 6 Jones, (H. C.) p. 21. State
vs. Morris, 3 Hawks, (H. C.) p. 388.)
A few examples will illustrate my meaning. An actual presence is where
one is standing by within sight and hearing of the criminal fact: an actual
aiding and abetting, is where one. does some act in in direct furtherance of
the commission of the criminal fact. How suppose B commits a robbery
or a murder, and A keeps watch or guard at some convenient distance. A is
not actually present, and to make out the proof of his constructive presence,
you must establish some sort of combination, confederacy, agreement, or un-
derstanding between A and B—some connection between the two—before
you are justified in convicting A. Lord D acre's case affords a notable in-
stance, where there was conviction, though the actual presence, and the ac-
tual aiding and abetting were both wanting ; but the proof of combination
supplied both. Lord I)acre and others came to steal deer in the park of Mr.
Pelham ; Kayden, one of the company, killed the keeper in the park—
Lord Dacre and the rest of the company being in other parts of the park;
and it was held to be murder in them all, and they died for it.
(1 ILale, pp. 439, 443, 245. Foster Crown Ca. p. 354.)
How, here, to convict Lord Dacre and the rest of his company except
Kayden, it was necessary to prove a constructive presence, and a construe-
tive aiding and abetting at the place where Kayden slew the keeper; and to
make this proof, it was essential to establish a combination between Kayden,
and Dacre, and the rest of his company—and this combination was establish-
ed as the case shows—for it states that " Lord Dacre and the others, of whom
Kayden was one, came to steal deer in the park of Mr. Pelham they are
all again mentioned as " Lord Dacre and the rest of the company." So if A
is actually present, standing by within sight and hearing, when a murder is
committed by B, and takes no part in it, does no act in furtherance of the
commission of the crime1—and so much is given in evidence and no more—
A cannot be convicted as a principal of the second degree, although there is
an actual presence, proved, because there is no proof of his aiding and abet-
ting, either actual or constructive. In such a case it is necessary for the
prosecution to establish a conspiracy, combination or agreement between A
and B to commit the murder, or at least to do some unlawful act before A
can be found guilty, as principal in the second degree. And in that event,
if such proof be made, that A came for an unlawful purpose—although he does
no act, he is a principal in the second degree.
(1 Hale, P. C. pp. 374, 443.)
While considering this branch' of our subject, it may be well .to state that
there is a class of cases, in which it is important, not for the prosecution, but
for the defence, to offer evidence and establish the fact of a combination in
an unlawful object, between those who are charged as principals in the sec-
ond degree and the immediate perpetrator of the criminal fact, as a ground
for acquitting such as are charged as aiders and abettors. It is a principle
of law, that if a murder, or other felony, be committed by one of several en-
gaged in the prosecution of an unlawful design, all who came to assist, and
carry that design into excution, are guilty of the murder, or other felony, as
principals in the second degree. In such case, however, it is essential to
prove that the murder, or other felony, was committed in the prosecution, of
the specific unlawful design, in which those, who are charged as principals
in the second degree, were engaged.
(Kel. p. 116. Foster, p. 351. 2 Stark on Ev. pp. 12,13.)
For if the death, or other criminal fact, resulted from the particular mal-
SPECIAL JUDGE ADVOCATE.
365
ice of the individual who inflicted the blow, and who took the opportunity
of revenging himself; or, if it resulted from the independent action of a part
of the confederates, who had entered upon some collateral, independent ille-
gal design, not contemplated by those who are charged as principals in the
second degree, the others, who were assembled for a different purpose, will
not be involved in his or their guilt.
(2 Stark on Ev.p. 13. Foster, p. 352. Kel. p. 111.)
Such being the law, cases will arise, wherein the prosecution, ignorant of
the objects of the combination, will make prima facie proof of the actual
presence of the prisoners at the fact, and of their actual or constructive aiding
and abetting ; when such aiding and abetting was not in fact real, but only
apparent. And in order to show that it was apparent and not real, the pris-
oner must offer evidence—proof \ tending to show, that the unlawful design
for which they were assembled, and in which they were engaged, was inde-
pendent and collateral to that specific design, in the prosecution of which
one of their number committed a murder or other feloney.
A few cases will illustrate this point. Three soldiers went together to rob
an orchard' two got upon a pear-tree, and the third stood at the gate with
a drawn sword in his hand. The owner's son coming by, collared the man at
the gate and asked him what business he had tliere, and thereupon the sol-
dier stabbed him. It was ruled by Holt to be murder in him, but that those
on the tree were innocent.
(At. Sarum Law Assizes in 1697. Cited in Foster, p. 353.)
Here the unlawful combination was to rob the orchard/ and the action of
the soldier who killed the owner's son, was independent and collateral to
the unlawful design, in which the two on the tree had combined with him;
which fact saved their lives.
So in Plummer's case-*—the verdict stated, that Plummer and his accom-
plices, were assembled in order to transport wool of the growth of England
to France, contrary to the statute ; that an officer of the crown duly author-
ized for that purpose, met and opposed them, and that during the scuffle
which ensued, a gun was discharged by one of the offenders, and John liar-
ding, one of the same gang was killed. The question was whether Plummer
and the rest of his party, were guilty of this murder. (Kel. p. 111.)
It was agreed by the Court: First, That had the King's officer or any of
his assistants been killed by the shot, it would have been murder in all the
gang. Second, That had it appeared that the shot was levelled at the officer
or any of his assistants, this likewise would have amounted to murder in the
whole gang, though an accomplice of their own happened to be killed—for
the malice egrediiur personam • but this fact not having been certainly
found, the prisoner was discharged.
It is to be noticed, there was some evidence in this case, tending to show,
that John Flarding was purposely shot by one of the gang, because he was
suspected of treachery.
Plummer was evidently acquitted, upon the ground that it appeared affir-
matively that Harding wTas killed in the prosecution of some design, which
was independent of and collateral to that specific unlawful design, of ship-
ping wool to France, for which Plummer and his associates had assembled—
and Sir Michael Foster remarks of this case—" I take it, that the.point upon
which the case turned was this—it did not appear from any of the facts
found, that the gun was discharged in prosecution of the purpose for which
the party was assembled. But had it been positively found, that the shot
was levelled at the officer or any of his assistants, the Court, upon this find-
306
ARGUMENT OF E. G. HAYWOOD,
ing, might, without incroachmg on the province of the jury, have presumed
it was discharged in prosecution of their original purpose." (Foster p. 852)..
And now having ascertained the character of those cases in which, when
a prisoner is charged as an aider and abettor, it is necessary for the prosecu-
tion to make independent proof of a combination, between the person so
charged and the immediate agent of the criminal fact—it remains to inquire,
whether the case made out by the prosecution in this trial against Powers
and Watkins belongs to this class of cases. Most clearly it does not. We
have made proof—so conclusive—that I do not understand the prisoners' Conn-
sel even to question it—that within one or two minutes of the instant when
the pistol was fired which killed Beebee, Powers and Watkins had made an
assault upon him; Powers had with violent language endeavored to take
the deceased from the officers in whose charge he then was, and both Powers
and Watkins had endeavored to stab the deceased with their knives ; that
Watkins, even after Beebee was slain, was still pressing on with his knife,
expressing the desire and intention of cutting off his head ; that Powers was
the first man in the crowd, who by his action in tliepremises incited the mob
to press upon Beebee—and there is strong evidence—that from this initatioil
of his assault, until Beebee was slain, Powers, with his knife—armed with a
pistol also, as one of the witnesses for the prosecution testified—formed part
of the mad mob which continued to rush and press upon Beebee till he was
slain. All these continued assaults, including the final one with the pistol
which killed Beebee, transpired at the same moment of time—or at least in
such quick succession, that it is almost impossible in narration to separate
the one from the other—even Ed. P. Powers, a leading "witness for the de-
fence was compelled to admit, that Beebee was slain, within one minute from
the time when he turned the entrance arch to go out of the market house.
Beebee had not moved over twelve feet of ground—between the time when
Powers, the prisoner at the bar, first attempted to seize him, and the time
when he was shot with the pistol held—as we think we have proved—in the
right hand of Tolar. Such being the facts, it does, to me, seem too plain for
argument to the contrary—that the assaults made by Powers and Watkins
with their knives, and their efforts to seize Beebee, " were nets done, in di-
rect furtherance of the commission of the crime" of murder perpetrated by
Tolar with the pistol upon Beebee, which acts manifest the assent " of these "
two prisoners—Watkins and Powers—" to the principal criminal fact." In
other words, we have made proof, of an actual aiding and abetting, in this
felony, against Powers and Watkins—and "without any further proof of com-
bination between Tolar Watkins and Powers in an unlawful design, the
law presumes the assent of these aiders and abetters to the principal
criminal fact done by Tolar, unless these two defendants can plainly
show, that this apparent actual aiding and abetting—was only ap-
parent—and not real—or to vary the mode of expressing the same idea—
unless these, two defendants, can plainly rebut the presumption of their as-
sent to the principal criminal fact, which the law raises from the proof of
their apparent actual aiding and abetting therein.
Such is the law as I understand it; and, so far as my power and author-,
ity—as the legal adviser of this commission extends—such I now cltarge
the law to be on these points.
But, may it please the Court, upon these points of law I am at issue with
the Counsel for the defence, and have promised to meet them on theirmwn
ground—to take the law as they lay' it down, and yet to show all their cli-
ents guilty—and I shall do it. The Counsel for the defence say—it is true
SPECIAL JUDGE ADVOCATE.
367
that we have evidence here to convict Powers and "Wat-kins of an assault up-
on Beebee—it may be—evidence to convict them of an assault upon Beebee,
with the intent to kill him: but that if no person had done more than they
did, Beebee would yet be living : and we can. only convict them of, and for
what they themselves did upon that occasion ; that they cannot be found
guilty of murder because Tolar, or some one else, saw fit, at the time when
they by chance were assaulting Beebee, to step forward and shoot him—
unless we, the prosecution, establish as an independent fact in this case,
that when Tolar, or some one else, fired the pistol, he was in combination,
confederacy, agreement, conspiracy, or understanding of some sort with
Watkins and Powers, to kill Beebee, or to do him some serious bodily harm,
and Tolar—or whoever else it "was—fired the pistol in the prosecution of the
common design. I so understanckthe legal position of the Counsel for the
defence—and I endeavor to state it fairly—and with the best of my poor
ability—and my aim now is, although I consider it unnecessary for the sue-
cess of the prosecution, to shew, that there is in this case evidence—cogent
evidence—convincing evidence—conclusive proof, of a combination betwreen
Powers, and Watkins, and Tolar—or between Powers, Watkins, and who-
ever it was, who fired the pistol which slew Beebee, to hill Beebee, or do him
some great bodily harm. I shall endeavor to shew that there is evidence here,
■which—if there were no legal objection to the prosecution of a conspiracy
which has culminated in a felony—would justify a conviction of W atkins
and Powers—and I may add Tolar—upon an indictment for a conspiracy to
murder Beebee, or to do him some grievous bodily harm.
I was somewhat surprised to hear my brother Fuller say, while he was
addressing the Court, that the o^ily evidence of a combination to injure Bee-
bee on the part of any one, which existed in this case, was the testimony of
James MclNeill—wherein he deposed, that he (witness) heard Tolar say to the
prisoner, Powers, on or near the pavement, in front of the east end of the
market house, as Powers was returning from the carriage, in which Mrs. and
Miss Massey left the scene of the homicide—" When he comes down you
grab him and break the ice—and we'll put him through,"—or as the witness
first expressed himself—" When he comes down yon grab him and break the
ice—and that -will be all you will have to do." That is very direct and pos-
itive evidence of a combination, between Powers and Tolar, it 'is true—but
to me there seemed a good deal more evidence of the same character scatter-
ed throughout the testimony. But the strongest, weightiest, and most con-
vincing evidence of a combination between Powers and Watkins, and the
man who fired the pistol—is of a different character—and tome it seems
conclusive unless it be repelled. The strongest evidence in this case, of a
conspiracy—upon the part of Powers and Watkins and the man who fired the
pistol—to kill Beebee or to do him some serious bodily harm, is found in the
proof of the fact that they did combine in the act of assaulting him. It is
proof of a stronger character than can usually be given upon a charge of con-
spiracy, and it is necessary for me to explain why this is so ; and also-to elu-
cidate more fully my meaning, which sounds like a truism.
A conspiracy, as an independent offence known to the law, is—a confedera-
tion of two or more persons to accomplish an illegal object—or to accomplish
an indifferent object by illegal means.
(2 Whart, Am. Crim. L. Sec. 2291.)
The gist of the offence is the agreement or confederacy—and this is in-
dictable, though the illegal object be in no degree prosecuted, or though the
illegal means, be in no respect used. It is evident then, that in making
368
ARGUMENT OF E. G. HAYWOOD,
proof of a conspiracy, which has not been at least partially prosecuted or car-
ried into action, we can never have the elvidenee of the actual combination
of the defendants in the execution of the illegal object to help us. But when
the illegal object was to commit another misdemeanor, and is prosecuted to
completion, the misdemeanor thus committed, is the offence generally prose-
cuted, and which finds its way into our Courts for trial, as being most deserv-
ing of punishment—and it the illegal object was to commit a felony, and is
executed, the conspiracy as such cannot be indicted, because the conspira-
cy which is a misdemeanor, is merged in the felony; so that ordinarily, wheth-
er the object of the combination be to committ a felony, or to commit amis-
demeanor, if it be actually prosecuted to completion—the offence which
comes before the Courts for trial, is the felony or misdemeanor which there
was a conspiracy to commit, and not the conspiracy itself. So that it is very
rarely the case, that on trial of a conspiracy, we can produce such strong
and convincing proof of its commission, as arises from establishing trie fact,
that the defendants did actually combine in the execution of the illegal ob-
ject. But thus cogent proof we have, in our case—that Watkins and Pow-
ers,"and Tolar—or whoever it was that fired the pistol—did, in fact, combine,
in a simultaneous assault on Archy Beebee, during which, he lost his life—
to establish a conspiracy, to kill Beebee or to do him serious bodily hurt,
between Watkins and Powers, and the man who with his own hand slew th<3
deceased.
Does the Court realize the force and weight of such evidence % Let me'
illustrate this point. The door of this hall stands open ; suppose a man were
to enter through it, holding in his hand a bond prepared for signature, and
were to place it upon the table before the Court; and thereupon immediate-
ly, and without any apparent signal given by the marl who had entered the
hall, six persons here seated were to rise from their seats, approach the table
and sign the bond thereon deposited, as sureties for the new-comer. The
Court would have no evidence that these six men had agreed to sign the
bond as sureties, except the fact that they had simultaneously congregated
and executed it; yet how cogent—how conclusive—how overwhelming would
be the proof, made by this fact, of a previous agreement between the new-
comer and the six persons alluded to, and between the six persons among
themselves, to sign the bond as sureties for the first. So the fact that Powers
and Watkins were present at the scene of the homicide, and did actually
assist Tolar to slay Beebee—supposing, for the sake of the analogy, that Tolar
did shoot the,fatal pistol, as I think we have already conclusively established
he did do—is cogent, conclusive, overwhelming proof that the three had be-
forehand agreed to kill Beebee or to do him some grievous bodily harm.
We need no stronger—it would be difficult to offer stronger—evidence of a
previous combination between the three to do an unlawful act.
But, say the Counsel for the prisoners, it is true the apparent, actual, sim-
ultaneous combination of the three in the criminal fact would l>e very strong
evidence of & previous agreement between Watkins and Powers and Tolar to
commit it, or some other act like it, except that our case is an exceptional
one, and we can account for the fact of their simultaneous combination in
action by another and more probable hypothesis than that of a previous
agreement between the three to kill Beebee or to do him some serious bodily
hurt. That Beebee had committed an offence—or at least was charged with
having committed an offence—against the person of Miss Elvira Massey—
an attempt to ravish her—of so heinous a character that it was well and
naturally calculated to excite in every manly heart an irresistible impulse
SPECIAL JUDGE ADVOCATE.
S69
. to redress her wrongs; that under the force of this impulse common to all of
them—their souls being red with uncommon wrath—W atkins and Powers—
and Tolar also, if he was a party to the killing—rushed upon Beebee to de-
stroy him; and so we have, upon the face of this case, a reason for the sim-
ultaneous action of the three m the same direction, and it is not necessary
for the Court to search for other reason, such as a previous agreement among
them, to account for it. I am not using the words—I am endeavoring to
convey the meaning and argument of the prisoner's Counsel.
I will myself supply an analogy—and I purposely select a homely one—
to illustrate the position of the Counsel for the defence, according to my un-
derstanding of it. They say that their case is similar to the following one:
Suppose we were all sitting around a fire, in a room where there was a
handsome India matting on the floor, and a large spark were suddenly to fly
out of the fire and fall on the matting in the midst of the circle. Say the
Counsel for the defence by their reasoning, in such event; every man pres-
ent—all simultaneously—would spring forward to put their feet upon the
spark and extinguish it: and yet this simultaneous action would be no evi-
dence of a previous agreement to do so—because the combination in action
is accounted for by the natural impulse, which was common to all. And so,
continue the Counsel—in our case, Watkins and Powers, and Tolar, if he
took part, acted simultaneously in assailing Beebee from the sheer force of a
natural impulse of our common humanity—and not from a previous agree-
ment or understanding among them. The cases, however, are not really
analogous, as I shall presently show—and the law does not permit this Court
to regard the character of the offence committed by Beebee, or al-
leged to have been committed by him—-for any purpose-—of this trial. It
would have been more proper to have tried this case, without permitting
the nature of the offence alleged against Beebee to have come into evidence
at all. Suppose in the trial of this cause, or one similar to it, before the
Chief Justice of the United States, or any other Judge of established repu-
tation, it had been gravely proposed by the Counsel for the defence to in-
troduce evidence for the prisoners, which tended to show that the deceased
man had a day or two before he was killed, committed a rape, or had at-
tempted to commitjone, of at least was accused of such an attempt. I could,,
and would straightway have objected to the introduction of such evidence,
on the ground that it was impertinent, and irrelevant to the issue, and that
it had no application to this case. The Judge would have said to the pris-
oner's Counsel, " unless you can show its relevancy and proper application,
it must he excluded." I wish to know, if it can be possible that the Coun-
sel for'the defence suppose that they—with all their ability—even that broth-
er Fuller, with all the suaviter in modo and fortiter in re, for which he is
remarkable, could have brought any argument to bear on the Judge, to in-
du.ce him to allow of the admission of this testimony in such a case as this
one is % .
Brother Fuller would have said: The prosecution, may it please the Court,
rely upon the fact that there was a combination to kill Archy Beebee, be-
tween the person who shot him and the prisoners Powers and Watkins, as
the ground of convicting the two prisoners last named of murder. The pros-
ecution will insist that "this combination is strongly evidenced, by proof
of the fact, that Powers and Watkins made an assault upon Beebee with
their knives, simultaneously with the assault which was made on him by
Tolar with his pistol, when the latter slew the deceased. I propose to show
that, on the day before the homicide was committedi Beebee committed a rape
370
argument of e. G. HAYWOOD,
tipon a respectable young white woman, who was a defenceless orphan—or
attempted to commit such a rape—or at least was accused of having at-
tempted to commit the rape on the day previous; and the object of this evi-
deuce is to repel the conclusion of a combination between the three, drawn
from the fact of their simultaneous concurrence in the assault, since the enor-
mity of Beebee's crime excited in all honorable men, within whose view he
came, an irresistible—or at least a natural—impulse to kill him, or do him
some serious bodily harm, The Judge would have replied: " The law says,
if a man detect another in the very act of attempting to ravish a woman, and
slay him to prevent the crime, the slayer shall be justified and commended,
provided the attempt was apparent, and the danger imminent, and the
amount of force used necessary to prevent the' crime; because the human
impulse which impelled the slayer to kill was natural and laudable, and he
but saved the hangman a labor. If a man detect another in the very act oj
adultery with the wife of his bosom, and at once slay him in the heat 01
blood, yet shall he not be justified nor excused, but he is guilty of man-
slaughter—of the felonious slaying of the deceased; and if he allow the sun
to go down upon his wrath, and on the next day slay the adulterer, he is in
law a murderer: for the law so far regards the infirmities of human nature
as to palliate—not justify nor excuse—that impulse of passion which urges the
husband to slay an adulterer detected in the act, at the moment of detection;
but the law neither justifies, nor excuses, nor palliates, that impulse of pas-
sioii which drives even the husband to slay even the adulterer, *wlien the
blood has had time to eool. The law, in no respect, and for no purpose, re-
gards such an impulse of passion as this last as natural—as even an infirm-
ity of our common nature. And shall the law—which does not regard even
the anger of the outraged husband against the destroyer of his peace, on the
day after his dishonor, as of any avail to mitigate liis offence, nor allow
proof of the fact of his dishonor on the previous day to be received in evi-
clence, for any purpose, on his trial for the adulterer's murder—permit the
evidence which you propose to introduce to be heard ? It cannot be! If
the fact that Beebee had, on the previous day, ravished, or attempted to rav-
ish, a respectable white girl, who was an unprotected orphan—or the fact
that he was accused of such an attempt on the day previous—did excite in
Powers and Watkins and Tolar an impulse to slay, or do great bodily harm
to Beebee, the law says such impulse was neither pardonable nor natural,
but was diabolical—was a seduction and instigation of the devil—indicated
a heart regardless of social duty and fatally bent upon mischief—and the
law forbids both courts and juries to conclude, that any such impulse is
excited by any such cause, unless it be clearly proved; in which event it can-
not help, but is fatal to the prisoner. Qui bono—then, should this evidence
of Beebee's crime, or the accusation against him, be heard % Y'ou propose to
introduce it to account for a simultaneous conctirrence of several men. in a
.criminal.fact, because, you say, this concurrence proceeded not from previous
agreement, but in fact from a common impulse which his crime excited in
the prisoners and in all other honorable men; but the law says, both as a
matter of fact and a matter of law, his crime excited no such impulse, and
.therefore his crime cannot account for their concurrent action. The evi-
dence offered is impertinent and irrelevant iii every point of view, and must
be excluded." And such is undoubtedly the law.
It is only by accident—or rather—by some indulgence extended to the
prisoners by the prosecution—that the fact of the crime of which Beebee
was accused at the time nf his death, has -crept into the evidence in this
8PECIAL JUDGE ADVOCATE.
371
cause, and lias become judicially known to the Court. If tben, it was not
proper evidence, to be lieara by this Court for any purpose—liow can the
prisioners hope by means of it—to repel tlie strong presumptive proof of a
combination among them in an unlawful design arising for tlie fact of their
simultaneous concurrence in a criminal tact %
But, may it please the Court—if the evidence of the crime alleged against
Beebee could be used, for the purpose proposed by the prisoner's Counsel,
there is yet no analog}?-, between the case I have used for illustration, and the
position taken by the Counsel for the defence. The true analogy is, between
the case of the sureties who signed tlie bond—already suggested—and the
case before us. I have suggested the illustration of the circle of gentlemen,
the India matting and the spark of fire'—because I wished to do full justice
to the prisoners—and to bring the point raised by their Counsel, clearly and
prominently—before the Court. Let us however, extend this illustration a
little—suppose the party of gentlemen did not, when the spark first fell on
the matting, immediately stamp it out, but walked about the room, in con-
versation with one another, and presently, simultaneously came back and
put it out, we would then have a case more analogous to ours—would not
the conclusion be irresistible, in such case, that they had, while so moving
about in conversation, consulted on tlie matter, and agreed to put it out ?
So, too, if, on the very day in which this crime of attempted rape was
committed—which was alleged against Beebee—Tolar, Powers and W atkins
had sought him out—rushed upon him—and then and there slain him—there
would have been some sort of show of an analogy between their action, and
that of the supposed circle of gentlemen. But when that day had passed
by, and when Beebee had, but an hour before tlie assault, gone up into the
market house, passing in the presence of these very men, who finally killed
him, without being assaulted—and when these prisoners did not, driven by
this natural impulse—spoken of by their Counsel—immediately leap upon
him, and then and there take away his life—but within an hour afterwards,
having in the mean time been moving about in conversation with one anoth-
er—did simultaneously attack him, two, with knives and one with a pistol
and slay him—then, their action is exactly analogous to that of the gentle-
men, who, when the spark first flew out upon the matting, walked about the
room in conversation together, and eventually, came back simultaneously
and put it out—the analogy of the illustration holds good here. Such con-
duct indicates that the simultaneous concurrence in the assault by the three,
was the result of an agreement to kill or do bodily harm to Beebee—that it
was the result of an understanding—a combination to which Tolar, "Wat-
kins and Powers—and probably others—were parties.
It is admitted by the Counsel for the prisoners, that, if Tolar fired the pis-
tol, he is guilty^ of murder ; and if there was a combination between Tolar
and Powers and Watkins to do grievous bodily harm to Beebee, in pur-
suance of which design the pistol wras fired, then Powers and Watkins are
also guilty of murder—and that the matter is sufficiently laid in the charge
and specification. The presumptive proof of a combination among the
three—arising from the established fact, that all three participated in a sim-
ultaneous, concurrent assault upon the deceased, at the moment when the
pistol was fired which killed him, cannot—as I think I have shown—be sue-
cessfully met, by the counter alley a lion—a n d we have nothing but the
allegation—that their having apparently united in the criminal fact is ac-
counted for, by a natural impulse of the human heart, which caused them
372
ARGUMENT OF E. G. HAYWOOD,
all to leap simultaneously to its execution, without any previous agreement
or understanding with one another.
As it seems to me, the Counsel for the defence have had a hard case.
They are able; they have been indefatigable in the cause of their clients; but
they were surrounded with difficulties at every point. There is hardly a
path into which they turned on their road which did not lead them to des-
traction. My sympathies were often aroused, and the difficulties of the de-
fence must have reached their climax, when Counsel were driven to assum-
ing the position, that every man who attempted a rape deserved to be mur-
dered by a mob—and that all men of generous instincts, warm hearts, and
manly impulses, would naturally feel, an almost irresistible inclination, to
murder the wretch, so soon as he came in their sight. This irresistible in-
clination is one which the law does not recognize, as I have already pointed
•out—it is an inclination which the law regards, as neither a justification,
nor an excuse, nor a palliation of homicide. But the prisoners have put this
proposition in the mouths of their Counsel, and it proves too much for their
good. If the community in which Beebee was killed feel in that way—and
many of its component parts, no doubt do ; if the prisoners at the bar feel in
that way ; if they felt that this negro man after attempting what he did at-
tempt—if the allegation against him be true—did not deserve any longer to
live and merited death at the hands of every citizen ; if that feeling produ-
ced so strong a passion in them, that Counsel representing them come here>
and plead it, if not as an excuse for the act charged against them in the in-
dictment, at least as strong and forceful evidence that the prisoners acted
from impulse and passion—and not after deliberations, with designs—is it
not a legitimate argument for me to urge, that they thus furnish us with an a
priori probability, that they did agree beforehand to kill Beebee; as the
means of more certainly and effectually doing that, which they all thought
ought to be done, and felt a strong impulse—all of them—to do ? According
to the views of the Counsel for the defence, it is necessary for the prosecu-
tion to prove that there was a combination between Tolar and Watkins and
Powers to kill the deceased or to do him serious bodily harmwe offer evi-
dence that they all united simultaneously in an assault upon him, which
was terminated by his death—as proof of a previous agreement or under-
standing among the three, that they would kill Beebee or do him some
grievous bodily harm ; and the Counsel for the defence say, it is highly pro-
bable that there was such an agreement or understanding—for every man of
them thought Beebee deserved to die—ought to be murdered the moment he
came within view of any man with the impulses of a man—felt a strong in-
clination and almost irresistable impulse to murder him—and to be certain
that it was done and well done—what more probable than that they com-
bined to do it ? If the assumption of the Counsel proves any thing, it
proves too much. But the Court ought not properly to know for what of-
fetice Beebee was arrested, and therefore arguments derived from his crime
can have no legitimate application either for prosecution or for defence.
But, may it please the Court, there is some direct, and a great deal more
circumstantial evidence of a combination to kill Beebee, or to do him seri-
ous bodily harm. I wish the Court, however, before proceeding farther, to
disabuse their minds of the idea—if such idea they entertain—that a conspi-
racy must necessarily be as august in its dimensions and as long in its prep-
aration as was the conspiracy of Cataline to assassinate the new consuls of
Pome. Most persons, unaccustomed to legal language, think that the idea
of a combination necessarily implies a great deal of forethought and pre-ar-
SPECIAL JUDGE ADVOCATE.
373
rangement. It is true the allegation of combination does imply some degree
of premeditation; hut, though parties may have assembled for an en-
tirely innocent purpose, yet if, upon a dispute or other cause for it arising,
there is even a mute understanding of mutual assistance in a common de-
sign among several, there is in law a combination ; so that it is not at all ne-
cessary to the establishing a combination between Tolar, Powers and Wat-
kins—or to proving a confederacy or conspiracy between them, within* the
meaning of the law—to offer evidence that they agreed together the night
before, or the morning before, or even a minute before they got to the mar-
ket house, at the time when Beebee was killed, to make an assault on him.
They may have combined after they got together at the scene of the homi-
cide, and this would make a complete conspiracy. If there was an under-
standing or agreement between the prisoners at the bar, one minute after
Bond got down stairs and announced the result of the trial—if there was
even then an understanding or agreement as to what each man was to do,
there was a complete conspiracy. If when Powers attempted to seize Bee-
bee, he did so under a silent understanding, that moment conveyed to him,
that he would receive aid, comfort, or even encouragement from Tolar and
Watkins, there was just as complete a combination as if it had been entered
into six weeks before hand in the most explicit terms.
Embracing these views, we set out with the fact, that Powers, Watkins
and Tolar did combine in action. Powers and Watkins were cutting at
Beebee with their knives within a minute after he made his appearance;
Powers exclaiming " He's my prisoner!" "Damn him, give him to me!"
and using many other like expressions. We know that the killing was very
soon after the first assault—all the witnesses concur in this, and we know it not
only from the positive, direct statements of the witnesses—but also from cer-
tain circumstantial facts that are embodied in the case. For instance—one
of the witnesses for the defence, Isham Blake, says, he turned to go out of the
market house, putting himself instantly in motion, as soon as he saw Beebee
coming down the stairs of the market house, having some fear that there was
to be a difficulty which he was unwilling to witness—and before he could
get out of the market house, the man was shot. Robert Mitchell, a witness
for the prosecution, left the market house before the negro had left the town
hall above the market house: his store was but a hundred yards distant or
thereabouts, and before he reached it the man was shot. It takes but a very
short time to walk a hundred yards, at an ordinary pace. Therefore, from
the time the first assault was made by Powers and Watkins' to the time of
the final assault with the pistol, there could not have elapsed a minute—
Mitchell had not even got to his store before he heard the report of the pis-
tol. So again, Carpenter, a witness for the prosecution, says, he arrived at
the middle of the market house in passing through it; at that time the ne-
gro was on the stairs; the witness, without pausing, passed directly through
the crowd present, and before he reached Dayis's store, a distance not exceed-
ing thirty yards, the pistol was fired. All these circumstances, as well as
the statements of the witnesses, show that there must have been only an ex-
ceedingly short interval of time between the moment when Watkins and
Powers were making the attempt to stab Beebee with their knives, and the
instant when the pistol was fired by Tolar ; the assault was continuous—and
in fact we may say the assault of Powers and Watkins with their knives, and
the assault of Tolar with his pistol, were made in the same moment. So, I
conceive the actual combination in the criminal fact to be established. I
have, therefore, endeavored to divest the minds of the Court of the idea, com-
374
ARGUMENT OF E. G, HAVWOOD,
monly entertained, that a conspiracy, or combination, must necessarily have
been entered into some considerable time previous to the execution of the
criminal design—and-also to impress upon them, that no further proof is
necessary to show a combination, when the object of the conspiracy is car-
riedinto action, and we can prove a general participation in the action—since
that fact is the strongest possible circumstantial evidence of combination.
And I am now prepared to enter upon the independent evidence of combina-
tion, scattered throughout the case—of which there is much—which implicates
not only the prisoners at the bar, but several other persons, not now before
the Court.
May it please the Court: it is-seldom indeed that we are able to prove a
conspiracy or combination, by positive, direct testimony. The Court ought
not to expect such proof. The evidence in such cases must almost necessa-
rily be circumstantial. It can be direct and positive only when one of the
conspirators becomes a traitor to the unlawful combination and his asso-
ciates. Unless this be done, it is impossible to prove a conspiracy by direct
testimony.
I will read to the Court a quotation of some authority in connection with
this subject. I read from the case of United States vs. Cole, 5th McLean's
Reports, p. 513, bJ. B., p. 601:
"A conspiracy is rarely, if ever, proved by positive testimony. When a
crime of high magnitude is about to be perpetrated by a number of individ-
uals, they do not act openly, but covertly and secretly. The purpose formed
is known only to those who enter it. Unless one of the original conspirators
betray his companions and give evidence against them, their guilt can only
be proved by circumstantial evidence. It is said by some writers on evi-
dence that such circumstances are stronger than positive proof. A witness
swearing positively may misapprehend facts, or swear falsely, but cifeum-
stances cannot lie. The common design is the essence of the charge, and
this is made to appear where the defendant's steadily pursue the same object,
whether acting separately or together by common or different means'''—whether
pursuing their object, one with a knife, another with a pistol, another with
a club, or whether all with pistols—" all leading to the same unlawful re-
suit. And where prima facie evidence has been given of a conspiracy, the
acts or confessions of one are evidence against all. This rule of evidence is
founded upon the principles which apply to agencies and partnerships. And
it is reasonable that, where a body of men assume the attribute of individ-
uality, whether for commercial business or the commission of a crime, the
association should be bouild by the acts of one of its members in carrying
out the design."
Says Stark, on Ev., vol. 2, Part IV, p. 401:
" upon an indictment for a conspiracy, the evidence is either direct, of a
meeting and consultation for the illegal purpose charged, or more usually,
from the very nature of the offence, is circumstantial. It is not necessary to
prove any direct concert or even meeting of the conspirators."
Greenleaf says, 3 Greenlf. on Ev., sec. 93, p. 88 :
" The evidence in proof of a canspiracy will generally, from the nature of
the case, be circumstantial. The common design is the essence of the charge.
It is not necessary to prove that the defendants came together and actually
agreed, in terms, to have that design and pursue it by common meanb. If it
be proved that the defendants pursued, by their acts, the same object, often
by the same means, one performing one part and another another part of
the scheme, so as to complete it, with a view to the attainment of the same
special judge advocate;
375
object, the jury will he .justified in the conclusion tliat they wfere eiigaged in
a conspiracy to effect that object;. Nor is it necessary tq prove that the con-,
spiracy originated with the defendantsor that they met. during the process of
its concoction / for every person entering into a conspiracy, or common de-
sigh already formed, is deemed in law a party to all acts done by any of the
other parties before or aftertoards in furtherance of the common design." . ,
The Court will see from all these authorities and many others, which
might be produced—that we are not to be expected to adduce evidence here
showing when and where and "under what circumstances, Tolar, Powers and
Watkins met and concocted this scheme or even to show that they ever met
at all—we give the only evidence, of which, in its nature, the case ad-
mits. The law is reasonable; The conimon law is the very perfection of
justice and of reasom It is not an artificial code—but it grew tip out of the
necessities of a brave and wise people jealous of their rights and liberties.
This is the only kind of evidence, that can be had of a conspiracy or combi-
nation, unless one of the men who was party to the combination, himself
comes forward, and admitting his own guilt—exposes his co-conspirators and
gives us the details of the combination. And if, as we allege—-and think
we have proved-—and shall hereafter show—there was a combination, to do
Beebee harm, to which not oply the prisoners at the bar, but also Leggett,
Lutterloh, Powrers and others" wrere parties, we do not believe the oaths of any
of these parties, wdth reference to the conspiracy will go for anything with
this Court: or at any rate very little reliance will be placed on any state-
ment they may make to disprove its existence. Leggett, Lutterloh and Pow-
ers, by their own admissions, connect themselves too closely with Tolar,
to claim credence at our hands.. I shall not take the trouble to analyze their
testimony, in which they deposed they were not parties to any combination;
if they were parties to a conspiracy to murder, I would not expept them to
admit it, even when put to the crucial test of an oath ; and if I have satisfac-
tory testimony that they were parties to such a combination—their oaths
will not purge them in my estimation—any more than would the oaths of
these prisoners at the' bar, that they are not guilty of the offence, with
which they are charged, convince me of their innocence.
I say thus much, by vray of response, to the position taken by the de-
fence—that they had negatively disproved any combination, by the testi-
mony of Leggett, Lutterloh and Powers. But even accepting all which
these three witnesses—Lutterloh, Leggett and E. P. Powers—deposed, as
true—it only proves at most that they—these three—had no connection with
the. combination, and that they knew nothing of it. It does not even tend
to disprove a combination to which Tolar, Powers and Watkins were par-
ties. It is not necessary to our case—but I will also say, in reply to remarks
which fell from the opposing Counsel, that there is strong evidence, that the
witnesses Leggett, Lutterloh and Powers were parties to the criminal com-
bination, as well as many more not named ; and upon this point my posi-
tion is unchanged, and I stand just where I did, at the opening of the testi-
mony in this cause.
At this point, the Court took a recess until eight thirty P. M.
Baleigh, N. C., September 14th, 1867, 8.30, P. M.
The Commission .met pursuant to adjournment.
Mr. Haywood continued as follows :
May it please the Court:—When the commission took a recess, at three
o'clock to-day, I -was endeavoring to demonstrate, from the evidence as an
376
A&GrtJMEitff oi* E. G. HAYW0O0,
independent fact, that there was a combination, confederacy, or conspiracy,
upon the part of these prisoners at the bar, and probably upon the part of
others not now on trial, who were present upon the occasion of Archy Bee-
bee's death, either to do him some great bodily harm, or to take away his
life. I had insisted that it was not necessary to their conviction, according
to my view of the law, to establish the fact of any conspiracy or combina-
tion. That if Powers and W"atkins were actually present, and actually aid-
lng and abetting in the homicide, when Tolar fired the pistol, there was no
necessity whatever for establishing a conspiracy* For proof of a conspiracy
was only necessary, when there Was not an actual presence, or not an actual
aiding and abetting, for the purpose of showing a constructive presence, or a
constructive aiding and abetting; but as it had been admitted upon the part
of the defence, if We showed that Tolar did fire the pistol which killed Archy
Tieebee; and further showed that there was a combination, a confederacy, or
a Conspiracy, between Tolar, and the defendants Powers and "Watkins, to
aid and abet him in what he did, then it was necessarily murder in all—I
was going on to demonstrate, from the evidence, that there was a conspiracy;
the first point I made, and the one from which I shall now begin my argu-
ment, was, that the strongest proof of conspiracy, was the fact that Powers
and Watkins actually did combine with Tolar- in the criminal fact, which
position, I illustrated to the Court by one or two familiar analogies.
I now come to the other evidence of a combination—direct and positive,
as well as circumstantial—and which, it is true, is almost altogether circum-
stantial, with which 1 was occupied when the Court adjourned. As I then
showed the Court—from the • principles—contained in McLean Reports,
Starkie and Greenleaf, and other authorities—it is to be expected, that
the evidence in such cases will be circumstantial. We are not prepared to
prove—and if the Court should require so much of us, our.case must fail—
and most cases of a like character must break down—we are not prepared
to prove that Tolar, Powers and Watkins actually met together, in a house,
or at a particular spot in the night of the previous day, or in the earlier part
of the same day when the homicide was perpetrated, and had, by express
agreement, each with the other, in explicit terms undertaken to commit this
murder. We could not be prepared with such proof as this, unless one of
the criminals would turn State's evidence, and furnish us with the details of
the nefarious scheme. But I do undertake to show, not from a single circum-
stance—as one of the Counsel for the defence alleged in his address—not
from the single circumstance—to which James McNeill testified, that the
defendant Tolar told Tom Powers, " Tom, as he comes down, you grab him
and break the ice, and that is all you will have to do,"—but from a crowd—
a host—of other circumstances, to which I shall now endeavor to direct the at-
tention of the Court—that there was a combination among all the prisoners
at the bar, the object of which was either to kill Beebee or to do him serious
bodily harm.
There Was something peculiar in the bearing of the crowd that day. It
is evidenced at every turn in these proceedings. It is difficult to define
what it was. It is difficult for the witnesses to testify to what constituted
it; bat every member of this Court, who has been in an excited crowd,
knows that frequently, without the flourishing of deadly weapons—without
noise—Without expressions in the way of threats—without shouts«-it may
be gathered from the general bearing oj a crowd-^the expression of the face—
the compression of the lip—the flashing of the eye, or the pallor of the courn
tenance—the appearance of restlessness, or the appearance ©^determination or
special judge advocate.
377
of unnatural calm in a crowd—that some deed of violence is about to be en-
acted. There is a sort of electric current that passes through such a crowd—
an animal fluid, which communicates a knowledge of the impending fact to
those who come in contact therewith. It is intangible; it is almost impossi-
ble to lay the hand upon it—it is utterly impossible to express in words of
what it consists. From the actions of individuals in the crowd, within and
around the market house at Fayetteville on that day, the Court may see
that such a state of things existed there. Take Isham Blake, one of the wit-
nesses for the defence. He was so conscious that something unusual and
terrible was about to occur, although, he says, he heard no threat, and saw
no violent outbreak, that he expressed himself here as having turned away
to leave the market house, to avoid seeing what was about to ,transpire.
Notice the exclamation of the negro woman, as mentioned by Myrover—an-
other witness for the defence—as she came shrieking through the market
house, before the assault was made upon Beebee, crying out " they are going
to kill that poor boy." Notice the fact—that, after the deed of blood was
done, of those two hundred men, or thereabouts, who composed the crowd,
no voice—except a few of negroes and children—was heard inquiring " who
had perpetrated that act?"—no voice denouncing its perpetrator—no hand
was extended to seize the felon. It was unnatural. In the ordinary course
of things—as this Court well knows—if, in a crowd of one or two hundred
persons, a pistol were discharged which slew a man, every second man in
that crowd would be inquiring who fired it, except the}> all, or a very many
of them, had some knowledge of what was about to be done, or had at least
some suspicion, from the appearance of the crowd, of the deed which was
about to be enacted. Look also at the witness for the prosecution—James
McNeill. Hearing this injunction from Tolar to Powers—to which I have
already more than once alluded—he turned and fled. Why ? There was
some cause for it. There was something in that crowd, as to which the wit-
nesses cannot testify, so unintelligible to the senses that it is .an essence for
which there is no name, and which pervaded that whole assemblage and in-
dicated a consciousness of the coming deed.
Nor was this all on which we rely—there are proofs more tangible. John
Maultsby, says the witness Reynolds, an uneducated boy, who—although
from necessity introduced by the prosecution—evidently gave his testimony
with great reluctance, whenever it told with any force against the prisoners
at the bar—John Maultsby was in conversation with a red bearded man,
whose name the witness did not know, and Maultsby said, " If the man is
innocent I am his friend, but if he is guilty I am in for IT." There was
some doubt raised by the cross-examination, as to whether the expression
used by Maultsby was, " If he is guilty, I am in for it," or " he is in for
it." But an examination of the testimony, as recorded by the gentlemen,
who have with so much patience, fidelity, and accuracy, performed this part
of our painful duty, will show, that upon his examination in chief, Jesse
Reynold's expression was this : " If he is guilty, I am in for it, as well as
the rest." What it f What rest f These expressions—this mode of ex-
pression used by Maultsby—indicate a consciousness, on his part at least,
of something about to take place to which he feared to give a name, and in
which several besides himself were concerned. Again ; Nixon, according to
the testimony of Sykes—one of the witnesses for the defence—had a conver-
sation with Tom Powers, while Beebee was above stairs. Powers was sit-
ting on a bench wvithin the market house, near Becky Ben's stall, and Nixon
told Powers, finding that he was unarmed, " he (Powers) ought to have a
378
ARGUMENT OF E. G. HAYWOOD,
pistol P What for, unless Nixon also knew of some event about to take
place, in which arms would be needed by Miss Massey's nearest male rela-
tive living ? What for, unless there was some communication going about
that crowd—some understanding pervading it—that Beebee, the negro man
who had attempted to ravish his (Powers') niece, was then and there to ex-
piate his crime ? But it will be insisted, this is some evidence that Tom
Powers was no party to the combination, even if there was one—since he
said " he did not have a pistol, and he wanted the law to take its course.'5
It is probable that at the time when Powers made use of these remarks, hia
mind was in a state of indecision. He had not yet fully determined what
he was to do—he was in- that fearful interim " between the acting of a dread-
ful thing and the first motion." It is probable, when Nixon spoke to him,
that he was debating with himself, whether he should take part in this com-
bination to commit murder, even at the last moment. He said " he wanted
the law to take its course." But after this, as we allege—although the proof
is not positive whether it was after or before—David Olipliant, a witness
for the prosecution, says that he saw Tom Powers leave the market house
and its immediate neighborhood for a short time—say about fifteen min-
utes—and then return to his old seat on the bench within it. We naturally
argue that his absence was caused by the previous suggestion, that he ought to
be armed with a pistol, and he absented himself to provide one. Tom Pow-
ors left the market house again, when the ladies, Mrs. and Miss Massey,
came down stairs, and went to the carriage—he moved to the carriage with
them, or immediately after they did—and had a conversation with his sister,
Mrs. Massey, in which conversation she advised him, " not to have anything
to do with it" What it? What was this deed without a name—to which
neither Maultsby nor Mrs. Massey dared to give a name ? Now, it is alleged
by the Counsel for the prisoners—that there is a contradiction and a contra-
rlety in the testimony here. That a number of their witnesses, and some of
ours, have sworn, that they did not see Tom Powers goto the carriage. There
can be no doubt about his having gone there, for witnesses—several of them
on both sides—swear to it most positively; but, say the Counsel for the pris-
oners, McNeill stands alone in the statement that Mrs. Massey told Powers
il he had better not have anything to do with it," and that thereupon Power5
nodded his head, as if assenting. The Counsel misstates the matter—Mc-
Neill does not stand alone in his testimony of this conversation between
Tom Powers and Mrs. Massey—David Oliphant confirms him—he heard the
same expressions; and Mr. Mitchell, a friend and connection of the Mas-
sey family, so far as his testimony goes, confirms McNeill also—Mitchell
had an impression that some such expressions were used by Mrs. Massey—
he could not speak positively. But, if therb was no confirmation at all—the
character of McNeill, being unimpeached here, and he having sworn posi-
tively that he heard such an expression—all this negative testimony, upon
the part of others, that such conversation did not occur, or that they didn't
hear it, and the like, amounts to nothing—there is no real conflict. Accor-
ding to the rule of evidence to which I alluded, when speaking to the Court
of the legal regulations, which control them in the investigation of testimo-
liy—one of the leading principles controlling the reconciliation of all the ev-
idence is, that where positive testimony is opposed by negative testimony—
as a general rule, under ordinary circumstances, other things being equal,
the positive is trice and must prevail. Why % Because when a man swears
positively, and with circumstance, that he saw or heard a particular thing,
or that it happened, he must be swearing to a fact—to the truth—or he
SPECIAL JUDGE ADVOCATE.
379
must be perjured. But when others swear they were present, or near about,
and did not hear or see any such thing, or that it did not occur, to the best
of their knowledge and belief, they may, through incapacity, or inattention,
or inadvertence, or lack ot memory, or error, or mistake, have failed to see,
or hear, or notice—or may now be unable to recollect what really happened—
and they may be mistaken or in error without being perjured. I take it
therefore for a fact, and I think this Court will receive it for a fact, that
Miss Massey said to Tom Powers, "don't have anything to do with it" I
take it as another fact, and I think this Court will receive it as a fact—be-
cause an unimpeached' witness—who has not been, and cannot be contradic-
ted—has sworn to it, that as Tom Powers was passing back from the car-
riage to the market liouse, Tolar approached him, as James McNeill swears
he did, and said to him what McNeill swears he said—Beebee having just
left the town hall, and passed through the door at the head of the stairs—■
" when he'comes down, you grab him, and break the ice, and we'll put him
through." Mow isn't the story natural ? Doesn't the evidence of'all the
witnesses fit as if it were grooved and dove-tailed ? Look at Tom Powers'
whole course. He had been hesitating for hours before. He was hesitating
when McNeill spoke to him, and asked him if Miss Massey wras his niece.
He had been with these ladies, his sister and niece, and had been advised to
have nothing to do with it—the approaching tragedy. He was even more
vacillating and uncertain than before, and Tolar, approaching him—per-
haps mistrusting the softness of his disposition—saw his vacillation. To-
lar, the leader, determined to strengthen his feeble knees—he told him his
part in the approaching deed of blood "was but a small one—only do that—
only put your hand to the wheel, "and we'll put him through." The
whole evidence fits like a glove. For only notice the different con-
duct of Powers after this exhortation. He seems to have changed his very
nature. Finding he had but a small part to perform—finding that he was
encouraged and supported by (those gentlemen upon whom he relied, his
whole course of conduct from that moment changed—no more vacillation—
no more hesitation—no longer faltering and in doubt—he passed to the foot
of the stairs, which Beebee was descending—he planted himself, knife
in hand, near the point in the arch, over which the victim must pass—he
•was the first to lay his hand 011 the-head of the doomed man, and to tell him
to look his last upon the sun—leaving it to Tolar and the rest to fill the
parts which they had promised to perform—and in another moment the curse
of Cain was on him. James McNeill's testimony furnishes the only key by
which we can account for the altered conduct of the defendant Powers ; apd
evidence which hangs together as this does cannot be false—cannot be man-
ufactured.
But there are other circumstances to which I pass on, tending tp prove a
combination, among the prisoners at the bar. Early in this trial Armstrong,
a witness for the prosecution, testified, that Jno. Maultsby—just after going
to the carriage in which Mrs. and Miss. Massey left the market house—re-
turned therefrom to the market house, leaped upon a bench within the buil-
ding, and said, " look-out boys," a moment or two before Beebee descended
the stairs. There was no other witness who testified to that fact. It stood
isolated and alone—unsupported and unconfirmed, as witness after witness
for the prosecution was examined—it seemed singular that Maultsby could
have done that act, and no one else have seen it, except Armstrong. But
presently came Jesse Reynolds, another witness (for the prosecution, after
the evidence of many other deponents had intervened. Reynolds, not con-
380
ARGUMENT OF E. G. HAYWOOD,
nected in any way with Armstrong, inclined to favor the defence—who
could not himself, I am well satisfied, from his lack of intelligence, see the
bearing of his testimony, nor the effect which it might have. Reynolds told
ns, that Maultsby, was also in a state of indecision, when he first saw him at
the market house on the day of the homicide. The witness heard Maultsby
say—" if the boy was innocent he was his friend, but if he was guilty he was
in for it, as well as the rest." Then came other witnesses for the prosecu-
tion—Pickett among them—who testified to a fact of which he could not
possibly see the bearing—that at some time, when Bond the town constable
was in and abopt the M arket house, to conduct Mrs and Miss Massey to
the carriage, Maultsby, had a conversation with this constable—who had been
present when the magistrates had Beebee before them—in which he satisfied
himself, as to what the Court had determined to dp. with Beebee, and
whether Miss Massey had identified the negro as the man who attempted to
ravish her or not. Row note—that Maultsby had just before this conversa-
tion said—" if the boy was guilty he was in for it /" as Bond went to the
carriage with the ladies and returned, it is proved that Maultsby had a con-
versation with him, in which he learned that the Court above stairs thought
Beebee guilty—and that Miss Massey had identified Beebee as the negro;
what would the Court expect Maultsby to do, after that, but the exact thing
which Armstrong says he did—announce to the conspirators, whom he knew,
that he—Maultsby vrn&.infor it as well as the rest; and this he did by leap-
ing upon the bench and saying—" look-out boys "—as Beebee was*about to de-
scend. I find in all this, strong corroboration of Armstrong. And I find in
all this testimony—pointing the same way—strong presumptive evidence of
the fact, of some sort of combination, or understanding existing in that
crowd, to which very many were parties.
In addition, let us now recall the testimony of the Sexton, Daley. My
brother Battle, in addressing the Court, asks them, without rhyme or reason,
to reject the whole of Daley's testimony, to strike it out, and disregard it. He
says that the story I )aley told, is so utterly improbable in itself; if true,
it would prove his client to be so thoroughly a fool, that no man of reasona-
ble judgment can conceive that Daley told the truth ; that the a priori im-
probability of his story is so great, its inconsistency with admitted facts is so
patent that this Court ought to reject it in toto. Here then is a witness who
swears positively that upon a certain day, certain events transpired—that a
conversation was had between himself and Tolar. He is not contradicted. •
His character for truth is presumed to be good—for it is not attacked—and it
is insisted by the defence that you ought to reject this man's testimony alto-
gether, simply because his story is so utterly inconsistent with ordinary ex-
perience—assuming Captain Tolar to be a man of more than ordinary sense
and judgment—that this Court cannot believe it. Row I undertake to ad-
vahce the opinion, that when a tribunal engaged in the investigation of fact
ventures to reject the positive evidence of an unassailed witness, on the
ground of the a priori improbability of the tale that is told, the tale ought
to be a very improbable one indeed—almost absolutely absurd—almost mi-
raculous in its statements. But is Daley's story so very extraordinary—so
very improbable ? I trow not. Is it at all inconsistent with ordinary ex
perience ? Row take the facts as narrated by Daley and the surroundings.
We are presuming, for the purpose of this argument at least, that Tolar shot
Beebee. A coroner's inquest was held, the jury sat upon the case, it was
the ordinary tribunal to decide in such cases, to what cause his death was to
be attributed—and they did decide that Beebee came to his death by means
SPECIAL JUDGE ADVOCATE.
381
of a bullet discharged from a pistol held in the hands of some person, to the
jurors unknown. Tolar felt safe enough after this—he thought investigation
was at an end. Why should he hesitate when several days were past—be-
ing a just and fair minded man—on meeting the negro in the street who
had buried Beebee, to1 pay him for his labor. It ,is all perfectly natural—
and has not a shadow of improbability about it. Daley told us that as he
(witness) was crossing the street one day—about twelve days after the killing—
lie met Captain Tolar. Now, I say, at that time, Tolar thought he#was en-
tirely secure, he knew that the whole community in which he lived sympa-
thized and felt with him and had no intention of annoying him—and he was
bold enough to say to Daley, " Boy, what do I owe you, for hurrying that
boy the other day V—and to pay him for the job. I was struck by the story
and the manner ot its telling, for Daley evidently disliked to tell it; because*
he felt a little ashamed of himself, for having received the two dollars from
Tolar, when he had already been paid by the sheritf for digging Beebee's
grave—this fact he kept back from Tolar, till he had the money in hand, " but
he did admit it at last," he said by way of exculpation—and he then described
the bill, to us which Tolar paid him, as being split at one end. He says also,
when he admitted to Tolar that he had been already paid, Tolar said it
made no difference, or something to tha't effect, and they parted. Is not the
whole story natural ? Is not it a natural enough supposition that Tolar
might have acted just so, if we ham no evidence of it / but Daley swears
most positively that it did occur, just as he narrates it; and it is a damning
circumstance, to show that—whether he fired the pistol or not—at least he
was a party to some combination, in pursuance of which that negro Beebee
was killed, and as a just man, he felt himself to some extent responsible for
the expenses of his burial.
Nor does our evidence of a criminal combination end here. James Kin-
drick, a witness for the prosecution—than whom, during this tedious and ex-
tended trial, no man bore himself better and more becomingly on the wit-
ness stands or gave in his testimony with more clearness and intelligence—
James Kindrick testified—that, as Beebee came in sight descending the stairs,
Tolar was standing in the main arch, on the east froat of the market house,
near the north end of the arch, and he (witness) heard him distinctly say to
some one—witness could not say who it was—" I hope I won't have to shoot
him, but if I do I'll make a good shot." Samuel A. Phillips also testified
to having heard this same expression—though he could not say who uttered
it—used by some one under the market house, when he (the witness) was
outside.
And note, that when the assault was at first made on Beebee, it was made,
not with pistols, but with knives ; and it was not until cries were heard in
the crowd— that Beebee would get away—or was trying to get away—and
after the first rush of the mob had apparently failed in effecting their pur-
pose, that Tolar, or whoever it was who fired the pistol, stepped forward and
discharged it, as the last resort. It is very evident, from the conduct of the
mob, that the first aim was to kill Beebee with their knives ; and the pistol
was not to be resorted to unless it became necessary to effectuate their pur-
pose. Tolar expressed a wish, almost as the assault began, that the deed
should be done without the use of his pistol; the action of the mob coincided
with this wish, and the conclusion is irresistible—whatever may be said of
others—that Tolar was in league, with the persons who made an assault with
their knives, to do bodily harm to Beebee.
I have not exhausted all the items of evidence pointing to a combination
382
ARGUMENT OF E. G. HAYWOOD,
between Tolar, Watkins and Powers, and others, to take away Beebee's life;
but I am satisfied I have cited enough evidence on this point.
Now, may it please the Court: 'any one item alone might not be conclu-
give; but take all these items just detailed in conjunction, and precede them
with the admitted fact that Powers and Watkins were assailing Beebee with
their knives—immediately before, if not at the very instant—when the pistol
was fired by Tolar, or some one else in the crowd, which slew Beebee—and
if we ha*e not proved that there was a combination among many persons in
that crowd, the object of which was to slay Beebee, or to do him great bodily
harm, and to which Tolar and Powers and Watkins were consenting parties—
then it is in vain, in future, to attempt to prove a combination or a conspiracy
by circumstantial testimony. We can never count upon proving a combina-
tion without the assistance of informers and approvers; and as such testi-
mony as theirs is not regarded as perfectly reliable, we may say that in
future a conspiracy cannot be proved—the courts cannot .have evidence
weighty enough to establish one.
But it is said by the prisoners Counsel, it is absurd to conclude that Wat-
kins, entered into a combination with these more respectable men; absurd
from the respective characters of- the men ; absurd in the very nature of
things—inconsistent, in other words, with ordinary experience. Does the
Court think it is inconsistent with ordinary experience, for persons of great-
er respectability to select a man, such as the Counsel for the defence have
admitted Watkins to be—as the instrument with which to do their dirty
work or to carry out their plans of vengeance ? Is not he the very type of
the man, that would be selected, in any community, to make one of a gen-
eral mob, associated for the purpose of taking away a man's life?
But Beynolds, the witness for the prosecution to whom I have already re-
erred testified—that, as Powers was on his way back from the carriage at the
time of which I have already spoken, Watkins had a conversation with Pow-
ers, and asked him—" what the ladies had said to him," and Powers replied
that, the ladies said he had better let it alone. And thereupon, Watkins
said—"if it was his kin, as it was Powers', he would not let it alone;" which
indicates, that, at that £ime Watkins was part and parcel of this same ar-
rangement to take away Beebee's life—however inconsistent, it may be with
ordinary experience for such men as Tolar and Powers, to combine in a
criminal design with such a man as Watkins. But we contend it is not in-
consistent with ordinary experience, that.such a combination should exist.
And now—if it please the Court—I have, said very nearly all that I in-
tend to say, on tliq facts of this case. I have endeavored to demonstrate
from the evidence—it is for this Court to decide how successfully—but three
points of fact; 1st. That the prisoner Tolar fired the pistol the bullet from
which slew Archy Beebee ; 2nd. That at the time when Tolar fifed the pis-
tol, the prisoners Powers and Watkins were present-y-and apparently actual-
ly aiding and abetting him to kill Beebee ; 3rd, That there was an agree-
ment, a combination, or an understanding, entered into, at some time—pre-
vious to the act of killing—either to kill Beebee, or to do him some serious
bodily harm, and that to this agreement, combination or understanding Tolar,
Powers and Watkins were all consenting parties.
If I have established these three positions of fact, the government is enti-
tied to a finding of guilty of murder, against ■ all the prisoners, even accor-
ding to the admissions of the Counsel for the prisoners. But there is a view
of the case, to which I shall advert in closing my argument, in which, as I
contend, it is entirely unnecessary to a conviction of any of the prisoners for
special judge advocate.
383
murder, that I should establish .the first point of fact that is—that Tolar
fired the pistol, the bullet from which slew Beebee—provided I can satisfy
the Court—that some person in the crowds fired the pistol the bullet from
which slew Beebee—and that at the time when the pistol was fired by this
person, not only Watkins and Powers, hit also Tolar, were present appar-
ently actually aiding and abetting in the homicide : or provided I can satis-
fy the Court, that some person in the crowd fired the pistol the bullet from
which slew Beebee—and that there was any agreement, a combination or
understanding entered into at some time previous to the act of killing, eith-
er to kill Beebee or to do him some serious bodily harm, and to this agree-
ment, combination or understanding, the person who did fire the pistol, as
wrell as Tolar, Watkins and Powers were consenting parties.
And I have been insisting all along—and do now insist—that there is no
mew which can be taken of this case, which renders it necessary for me to
establish—a conspiracy—combination—agreement or. understanding—to kill
Beebee, or to do him bodily harm—to which Tolar, Watkins and Powers
were consenting parties, as an independent fact—as a condition precedent to
the conviction of all these defendents of murder. So that I have endeavored
to demonstrate the fact that there was such a combination or understanding,
not because it was necessary for my case—but because, if established, it was
decisive of the case—and conclusively determined the guilt of all the defen-
dants, of murder according to the law as stated by their own Counsel.
But as so much time—and breath—has since been expended in my efforts
to establish the fact of a combination among these defendants—I believe it
is best, to shortly recur to the position assumed by me in the earlier part of
this argument, wherein I contended, that any proof of previous combination
or understanding, was unnecessary to establish the guilt of the defendants
Watkins and Powers, provided the Court was satisfied that they werehoth
actually present, and both apparently actually aiding and abetting in the
criminal fact—which presence and aiding and abetting were established by
proof that they were both assaulting Beebee with their knives, at the very
instant, or just before the moment when he was killed.
One point made, and fully presented, was—that if proof of a combination
were a necessary part of our case, the best and strongest possible evidence of
such previous agreement, was found in the fact that Powers, and Watkins
did combine in the concurrent execution of the criminal fact, with the person
who fired the pistol.
But I then contended, and do now insist, again, that no evidence of previous
combination in a criminal design, is necessary in this case. And why do I say
that proof of a combination against aiders and abetters is not necessary in cases
like ours ? I say it for this reason—that proof of a combination is necessary
only where the persons who are charged as aiders and abettors—or princi-
pals in the second degree—as Powers and Watkins are charged;—either were
not actually present, or were not apparently actually aiding and abetting in
the execution of the criminal fact—in this case—the killing. We say that in
this case there was certainly an actual presence and an apparent actual aid-
ing and abetting, upon the part of Powers and Watkins, at the moment
when Tolar—or whoever else it was—fired the pistol, which killed Beebee—
and therefore it is not necessary for us to show any combination among them
to prove either their presence, or their aiding and abetting.
!Now if there had not been an actual ■ presence, or there had not been an
apparent actual aiding and abetting in the killing, the case wrnuld be differ-
ent. Suppose, for example, we had proved that Watkins and Powers were
384
ARGUMENT OE E. G. HAYWOOD,
half a block distant from the market house when the pistol was fired, stand-
ing, the one with a pistol and the other with a club in his hand, on the side
walk of the street, along which Befebee would have to pass as he came back
from the market house to the guard house, where he had been confined, and we
had no other evidence against them. There would, in that event, have been
no evidence of their actual presence at the homicide, and no proof of an ap-
parent actual aiding and abetting therein. They would not have been ap-
parently rendering any actual aid at the time of the commission of the act.
The evidence would not be sufficient to justify their conviction. But sup-
pose we added to this circumstantial evidence, which strongly indicated that
they had previously combined and agreed together with the man who
fired the pistol, to aid and assist him in doing great bodily harm to Beebee,
or in killing him, we would make out a case justifying their conviction; and
it would be necessary to prove the combination as part of our case; for if
we prove a combination under such circumstances, then the law says that
they were constructively present, and were Constructively aiding and abet-
ting in the criminal fact. In cases of that character, it is necessary to prove
the combination, in order to prove a constructive presence, and a constructive
aiding and abetting; but where the principal in the second degree was ac-
tually present, and apparently actually aiding and abetting, proof of pre-
vious agreement in the common design is not essential to conviction; and
the proof of combination against principles in the second degree is only nec-
essary for the purpose of supplying the want of proof of actual presence, and
actual aiding and abetting, which is apparent.
Lord Dacre's case, to which I have already referred, as reported in Hale
and other books of authority, was one in which it was necessary to show the
criminal combination. Lord Dacre, and divers others, came to steal deer in
the park of Mr. Pelham. Raydon, one of the company, killed the keeper in
the park, Lord Dacre and the rest of the company being in other parts of
the park, not actually present, and apparently not actually aiding and abet-
ting; but they had gone together to do an unlawful act. It was ruled that
it was murder in them all, and they died for it. How, in that case the guilt
of Lord Dacre and his companions could not have been established, without
proving the previous unlawful combination to go and steal deer in the park.
That was essential in order to make Lord Dacre an aider and abettor in the
killing. It was necessary to prove the combination, because he was actually
not present, and apparently not aiding and abetting in the criminal fact—to
establish the constructive presence and the constructive aiding and abetting.
But when the combination was proved, it supplied the place of the proof of
presence and of an aiding and abetting, which-was apparent—and, as Lord
Hale says, " they died for it."
Pudsey's case as quoted in " Hale's Pleas of the Crown," Yol. 1, page
534, from Crompt. 34, illustrates the same principles " Pudsey and two
others, viz: A and B assault C, to rob him on the highway, but C escapes
by flight, and as they were assaulting him, A rides from Pudsey and B, and
assaults D, out of the view of Pudsey and B, and takes from him a dagger
by robbery, and comes back to Pudsey and B ; and for this Pudsey was in-
dieted and convicted of robbery, though he assented not to the robbery of D,
neither was it done in his view ; because they were all three assembled to
commit a robbery, and this taking of the dagger was in the mean time."—
1 Hale P. C. 534.
How in this case Pudsey was not actually present at the robbery of D, nor
was he apparently aiding and abetting A therein; and to prove his guilt, as
SPECIAL JUDGE ADVOCATE.
an aider and abetter, it was absolutely necessary to prove a constructive
presence at, and a constructive aiding and -abetting iii tie robbery of D, and
this prOof was made—and it was necessary that it should be made—by evi-
dence that all three—Pudsey, A and B, were in a combination to effect an.
illegal design—in other words, that "they were all three assembled to com-'
mit a robbery." ' .
But where there is an actual presence at, and an actual aiding and abet-,
ting, which is apparent, in a criminal fact, no proof of conspiracy, confedera-
tion or combination is necessary to convict a man as an aider and abetter in
the crime. ' , •
(2 Stark on Ev. p. 12. State vs. Simmons, 6 Jones (hi, 0.) p. 2l. State;
vs. Morris 3 Hawks, (H. C.) p. 388.) . ■ :.*
May it please the Court ; there is yet another view of the facts of this
fiase, which has been presented by the Counsel for the defence—which I do'
not think it is possible for the court to take-—which I may safely say, it is.
highly improbable the Court will take—but, yet, on which, I conceive it to,
be my* duty to state the law which arises, as I understand it to be; since my
brethren for the defence and myself differ " toto coelof in the conclusions of
lam, which follow from this supposed state of facts. It may be also, that I.
have failed to satisfy the Court, upon some of the points, either of law or of
fact, made by me in this extended address, which, are essential to the con-;
vietion of the prisoners, and that it-is necessary to state what the law is, taking
the most favorable view for the prisoners possible pf the evidence in this;
case—the view of the facts which is taken by the Counsel for the defence, j
If the Court shall come to the conclusion, that there. is not sufficient evi",
dence to establish previous combination , to kill Beebee or to do him some se~:
rious bodily harm, between Powers and Welkins, and Tolar—or whoever:
else it was who fired the pistol which killed Beebee—and that as a matter of
law they cannot convict Powers, and Watkins of murder unless such combi-
nation is establishedif they shall cpme to the conclusion^ that there is not.
sufficient evidence to establish—as against Watkins and Powers—a.concur-,
rent participation in the execution oi the criminal fact—that is—the killing''
of Beebee—to justify the conviction of these two defendants for murder; or-
that such concurrent participation in the execution of the criminal fact, if es-
tablished, is not 'proof oi previous unlawfulcombination on the part of these "
two prisoners, to; kill Beebee or to do him r serious bodily harm; if they
shall come to the1 conclusion, that the man , who shot Beebee, did that act,;
without the knowledge or consent of Powers and Watkins t I yet insist, that
the law pronounces Powers amid Watkms guilty of murder, if: at the time
the pistol was shot of immediately before, Powers and Watkins were assail-
ing Beebee with their* knives and endeavoring to take him out of the hands-
of the officers of the law—as the evidence shows that they were. The Coun-
sel for the prisoners say the facts of this case* are these-r—that Powers, who is
a near relation of Miss Massey, and Watkins, who is a man, of; little charae-
t"er, but ready for any emergency in the way of disorder, were standing in
the Crowd, when Beebee passed in their sight, coming , from the justices'
room, where Miss Massey had recently identified him as the negro man who-
had* attempted to violate her, person the, day previous : that Miss Massey;
herself had, but a'few moments before, passed to the carriage^ weeping, and;
with the woUnds" and' bruises—marks of the violence of this .brutal negro
fiend—visible on her neck: that—exas'perated at the sight of the ravisher so;
soon after they had seen his suffering victim—these two men, and perhaps
others, in the press, impulsively, rushed, striking with their knives, upon
386 ARGUMENT OF E. G. HIT WOOD,
:A if •" »'■• J
Beebee, and demanded of the officers of the law, that he should be snrreii.
dered to thehiVthat this was done, under the influence oi natural passion-—,
bit thednfp'ulse ofdhe:ffi6meht~without'c6hcert--and without*, afiy previous
understanding1 with",/'of' expectation of assistance from, anyjperspn wJhatsoev-
et—and that thereupon," Tolar^-if the Court finds" it was .Tolar—Phillips-^
if the Court finds it was Phillips—or "some' other person io-the Court, un-
known—if the Court so finds—without the knowledge or, consent of Powers
<md' WatJcihs, pressed forward intb the, crowd, drew his pistol,' levelled it,
fired, brid killed BeebeC.' "-The' 'Counsel ''insist, if these' be: the facts—that,
Whoever fired the "pistol is guilty of murder—-but that Powers and Watkm<
are guilty only of what they themselves, did, and that their offence, at the ut-
term6st,'Was bht; an aSSaiilt with the intent to MIL-. 'This I understand, to bp
the position of the Counsel for .the prisoners'—and. no one-can possibly sug-
j*est a 'foefefavoidable* vzeib 'of the evidence^ for the. prisoners, r than this.;
v :bTowT undertake to'say, that, assufiiing the'facts to be exactly; as/stated,
above, even upon that state of facts,"'Powers and" "Watlp.ns are guilty> not;
Only of wh'al.they themselves did% btit of what the' man, who fired the pistol;
dhbalsd—'-and that' is "murder—and'upon* this' point. I. am, not unfurnished;
with authority.'- The general'rule, both df law aiid of reason, is, that/when/
ever a man contributes tor a ' particular' result, brought abput either; by the;
eble volition Of another, of by such volition "added to his town, he. is hpldeni
for .the result, the shriie: as if ^ his' own Unaided" hand had produced it.; he,
whose/act causes; dp uhy 'way,-directly or'indirectly, the, death of another,
Mils him within "the nieaning bf tlie law. ' The proposition is thus .laid down
by 'Mr • Bishop in hihwork' Upon- hihriiiial .law-—" ,if' a' man is attempting to
db' a criminal thing,: and 'ahothef lhanj' without previous concert, comes to bis
assistance5and does it,'the first irresponsible for whatever results he bimseli
intended, "as* tlio'Ugh he were the1 sole perpetrator.",; (i, Bishops Crim. Law,
aee.-MOJ' A' *' '' * •*•• / ■ . -/
" Or applying it to our case—if Powers and "Watkins were, with their knives,,
attempting "to krlPBeebee, br to do1 hifii'sefious bodily harm,.'and -T.olar withe-
cdii prtytious cohdert) cdme: to', their/assistance', and! Mlled him, Powers and
WatMns'are* responsible for the killihg^as'though they were tb^ sole perpe-
trators:'-'1-*; . " J,. /
"'How5 the author from vhom I.have just quoted.has been lightly, spoken of
by the Counsel for ;tKe prisoner^—^and it' Was" asserted that this proposition of
laW rested hpbii that'solitary authority—and could "be fpuudnp" where else,
bufT shail prodttCd a'hpst ofnntbbrities, English and !A!merican, establishing
identically1 the-same point, though mayhap not in the same words, - 5-
"""Wbartoii in his work' oh criminal ' law—and -there is no higher American
authority than1 Whartbh—state's the proposition thus,; " He ;who attempts;
to Strike With a deadly;weap6n/':onb' who is at the same tirhe struck by ah-
other'with a deadly weapon,is joint principalititheoffence.",, (I Wharton,
Ani.Cmm paw,: se6.Tl&,)Z r '' " .'*' ::J ;' * ' . , ,
! Is not'that identically bur case1—were not Powers and."Watkjns attempting
to strike Beehee with deadly weapohs,' at "thh'time he"'wasiBhickhy +olar
with a deadly weapon, ahd killed ; 5: ".V" f ■ ,
;!"Arehbbld and "Hawkins*eiinhcTate the same doctrine in thesp terms: (" Jfj
two are fighting^ahd a;thhdcome'up Slid take the part, of one bffthem, and
kill the other, this will" be manslaughter in the third party, /and 'murder or,
manslaughter M thje' person ''^rhottf Kb assisted, according as: the fight waff de-1
liberated and premeditated, ot "oh a sadden quarreL'f,. ~ ■"
SPECIAL JUDGE ADVOCATE.
387"'
(Hawking P. C. B. 1. ckap. 31—see's. 35, 56. Archbold's Criminal Law,,
p. 324.)
If the two had not loth been fighting—it would have been murder in the
third party also / and it is apparent, that if the person assisted was engaged'
in a deliberate premeditated fight he was guilty of murder—a fortiori—he
would have been guilty of murder, if there was no fight at all, lut he was as-
sailing a bound and helpless man, writh a deadly weapon.
So again—" If several persons are present at the death of a man, they may
be guilty of different degrees of homicide, as one of murder and another of
manslaughter ; for if there be no malice in the party striking but malice in
an abettor, it will be murder in the latter, though only manslaughter in the
former.
(I East, P. C. chap. 5, sec. 121, p. 350. 1 Buss, on Cri. p. 570.)
When Powers and Watkins attacked a bound and unarmed man with their'
knives, and endeavored to kill him, or to take him out of the hands of the.
officers of the law, for. the purpose of killing him or doing him some serious*'
bodily harm, there was malice in law—such malice as would have made
them both guilty of inurder, if by their proximate agency, Beebee had been
even accidentally killed.
Sp again—" The master assaults with malice prepense, the servant takes'
part with the master, and kills the other, it is murder in the master, and
manslaughter or murder in the servant, according as he was ignorant of the.
malice of the master or not,"
(1 Hale, P. C., p. 445. 1 Buss, on Cri., p. 484. Bex vs. Salisbury Plow,
p. 97.)
Is it not apparent that here the master is held responsible, not only for
what he himself did, lut for that for whieh his servant did also f
There is a North Carolina case—not upon a trial of homicide, it is true—
but the character of the crime cannot alter the principle—which enunciates
this principle, and carries its operation further than the Court are required to
carry it in this case, in order to find Powers and Watkins guilty of murder.
This was an indictment against the defendant Morris and several others, for
an assault and battery on one King, a constable, while in the execution of
his office. On the part of the State, it was proved by several witnesses, that
while King was conveying a prisoner to the jail of Mecklenburg, under a
mittimus from a Justice of the Peace of that county, the defendant with sev-
eral others came up to him and said—"the prisoner should not go to jail if
money or security would save him." The defendant, and the officer in charge
of his prisoner, at the request of the defendant, then went aside from the
jail (at the door of which this conversation took place) followed by the other
persons in company. When they had gone about ten paceSj the defendant
said—"the prisoner should not go to jail at all." This was repeated by others
of the party, and immediately severed of them set upon the officer, attempted*,
to rescue the prisoner, and in the prosecution of this attempt the officer wTas
assaulted and beaten.
It did not appear that Morris himself assaulted or struck the officer, but
that the observations attributed to him above were made in a threatening,
manner. It was also in evidence, that when the officer was set upon, and'
the struggle was going on to rescue the prisoner, the defendant Morris re-
tired from the crowd, and said, "boys, you had better take care what you are
about, I will have nothing to do with this." The jury, under the instruc-
tion of his Honor below, found the defendant Morris " guilty"—whereupon
he appealed to. the Supreme Court of the State; and his Honor, Chief Justice
388
ARGUMENT OF E. G. HAYWOOD,
Taylor, in giving the opinion of the Supreme Court of North Carolina, says:
" It was distinctly decided by the Court (below) that the defendant (Morris)
was guilty in point of law, upon the supposition of the jury's believing the
witnesses for the State, although they should believe the defendant's wit-
nesses. And upon looking into the case, it seems impossible to doubt as to
the correctness of this opinion ; for the defendant's witnesses testified, that
when the ofiicer was set upon, and the scuffle going on to rescue the
party in custody, the defendant retired from the crowd and said, " boys,
you had better take care what you are about, I will have nothing to do with
it." The defendant had previously told the officer in a threatening and in-
timidating manner, that the prisoner, whom he had in' custody, should not
go to jail at all, and immediately several of the party set upon the officer
and attempted a rescue^ in the course of which the ofiicer was assaulted and
beaten—it the jury believed that the defendant (Morris) was an aider and
abettor in the commencement, he did not. cease to be a co-trespasser because
he was unwilling to go all lengths with his party—the judgment must be af-
firmed." -
i (State vs. Morris, 3 Hawks, (N. C.) p. 388, N. B. p. 392.)
There is yet another authority upon this point, to which I invite the. at-
tention of the Court, and it seems to have been the identical case, upon
which Mr. Bishop rests the legal proposition, which has given occasion for '
the animadversion of the Counsel for the prisoners. It is a ease tried in
Tennessee, and decided in the Supreme Court of that State, the opinion on
having been delivered by Judge Green, one of the most eminent jurists
of that commonwealth. The case is entitled " Beets vs. State," and I
give the facts so far as they are referrible to the. point under discussion. It
was an indictment against the plaintiffs in error, for the murder of Samuel
Rayle. It appeared in evidence, that all the parties were at a still-house
drinking, and James Beets, one of the plaintiffs in. error, and Rayle had an-
gry words and were about to engage in a fight. George Beets, the other plain-;
tin in error, then came up, and interfered to prevent the fight, declaring,»
that they should not fight, but that if fighting was to be done, he would do
it; whereupon Rayle struck him a blow, and a fight between them ensued,
during which George Beets threw Rayle to the ground. Joseph Beets stood
by ana encouraged George in the fight, and while it was progressing, James
Beets returned to where the parties were engaged, and shot Rayle with a
pistol, of which he died. ,
The court below charged the jury—that if George Beets engaged m the fight
in self-defence, and while thus fighting James Beets shot Rayle, without the
knowledge or consent of George, George would be. guilty of no offence. But
if George Beets fought willingly, so that he would be guilty of an affray,
and while thus fighting James Beets shot Rayle, it would, be manslaughter
in George, although James shot without the knowledge or consent of George.
The plaintiffs in error, George and James Beets, were found ' guilty of man-
slaughter,' and they both appealed to the Supreme Court of Tennessee, upon
the ground that the Judge below had misdirected the jury on points of law.
Greene, Judge, in delivering the opinion of the Supreme Court, after stating
the facts as above, said: " The first question is—-whether the charge of the
court is erroneous? It is certain that if George Beets had himself in the'
fight killed Rayle, it would be manslaughter. He was not fighting in self-
defence^ but was engaged .willingly in the combat., The fact that'Rayle.
gave the first blow does not affect the question, otherwise than to constitute.-
a,great provocation, which will reduce the killing to, manslaughter. Arch--
SPECIAL JUDGE ADVOCATE.
389
bold, bottom page 324. It is laid down in the same book, and also in 1st
Hawkins, e. 31, sec. 35-56—tliat if, when two are .fighting, a third comes np
and takes the part of one of them, and kills the other, this will be man-
slaughter in the third party, and murder of manslaughter in the person whom
he assisted, according as the fight was deliberate and premeditated, or upon a
sudden quarrel.
(1 -Russell on Crimes, 398; 1 Hale, 446.)
"The principle is this—if a party be engaged in an unlawful act, and an-
other assist him and actually perpetrate the mischief, the first party shall be
held responsible, as though he had been the sole perpetrator himself. If a
man is fighting with another, not intending to hill, but by some unlucky
blow death ensues, he is guilty of manslaughter. And why is this ? Not
because he intended to inflict death, but because he was engaged in an un-
lawful act, and the blow and the death were consequences of that act, and
he must be responsible for it, as though he had designed the result. IJpon
the same principle it is that he is responsible to the same extent, though the
fatal blow is struck by another, wTho assisted him without any concert on
his part.
" The assistance is given because he is engaged in the unlawful act; and
as he unlawfully creates the occasion for the interference and assistance of
the third party, he must answer for the consequences as though he had been
the sole actor. We are, therefore, of opinion that there is no error in the
charge of the court below." * * * * *
(Beets vs. State, 1 Meigs (Tenn.) R., p. 106.)
Now in this case it is as plainly intimated as is possible, that if George
Beets had been assaulting Rayle, under such circumstances, that if he him-
self, had, with his own hand, killed the deceased, it would have been murder,
it would also have been murder on his part, although James Beets actually
discharged the pistol which killed Rayle, without the knowledge or consent
of George, and without any concert with him. Which last is our case, on
the hypothesis of facts assumed for the purpose of this immediate argument.
I cite one more authority, but I shall not trouble the Court with it further
than by citation. (King vs. State, 21 Ga. R., p. 220.)
I have not, up to this time, entered fully into the reasoning on which this
legal position rests; but I have cited these many authorities—some more,
and some less, directly applicable to the case in hand. It is true that some
of these decisions are put by the courts, upon the point, that the concurrent
apparent participation in the execution of a criminal fact was strong prima,
jucie evidence against all the participators of a combination or concerted
plan, which established the responsibility of all the participators for the
criminal result, unless they" could prove, that their apparent participation in
the execution of the criminal fact was only apparent and not real— a point
already made in this case; but others of these authorities, and most of them,
lay down the naked position, in so many words, that if a man is making a
felonious assault upon another, and a third party comes to the assistance of
the first, and without his knowledge or consent, and without any concert, with
him, slays the assailed, the first assailant is gnilty of murder; and either
eourse of reasoning is sufficient for our purpose.
I think I may, therefore, safely say, I have made good my pledge of estab-
tablishing-—by authority—that if Watkins and Powers, under a sudden im-
pulse of passion, aroused by a cause which the law does not regard as a legal
provocation, were assailing Beebee with drawn knives, and endeavoring to
take him from the officers of the law, and while they were so engaged Tolar,
ABGUMESTT 0E E. G. HAYWOOD,
Phillips, or any one else, without their knowledge and consent, and without
any concert with them, came forward to their assistance and shot Beebee,
Powers and W atkiqs are guilty of murder; and-it makes no earthly differ-
ence in the grade of their crime whether they had a specific intent to kill
Beebee, or only a general intent to do him serious bodily harm.
And not only do these authorities establish my position, but the whole rea-
son and analogy of the law point in the same direction. • Bishop states the
general doctrine thus: " every act producing an unintended result, must,
'when evil, be measured either by the intent or by the result. The common
law rule measures it substantially by the latter, holding the person guilty of
the thing done,1where there is any kind of legal wrong in the intent, the
same asthough.it were specifically intended; not always however guilty of the
crime in the same degree." (1. Bish. C. L. sec. 411.) "When we look more
"closely into this doctrine, we see, that the evil of the intent and the evil ot
the act, added together, constitute the evil punished as crime, the same rule
applying here which prevails throughout the entire criminal law. And the
only peculiarity of this doctrine is in its teaching, that the intent and the
act, which constitute the sum, need not be the natural or usual aceompani-
znents of each other, provided they did in fact accompany each other in the
particular case. The consequence of which, is, that, whenever the intent is
sufficient in turpitude, and an indictable result comes from it casually, an
indictment will lie for this result, even in cases where, if the intent had ac-
complished its exact aim, the result would/ not have been indictable." (1.
Bish. C. L. sec. 414.) " How intensely evil the intent must be, to infuse
the bane of criminality into the unintended act is not easily stated in a word.
Evidently there may be cases wherein, it is too minute in evil for the laws
notice, the same as where the act is the true echo of the intent, and as where
Carelessness exists. So also, as, on the one hand, the evil intended is the
measure of a man's desert of punishment; and on the other hand, the injury
done to society, is the measure ot its interest to punish j and punishment can
only be inflicted when the two combine—it follows—that when the law has
different degrees of the same offence, as in felonious homicide, which is divi-
ded into murder and manslaughter, the injury must be assigned to the high-
er or lower degree, according as the intent was mare or less intensely wrong."
(1. Bish, on Cr. L. sec. 417.)
' So whenever the act, which whether intentionally or not, contributes to
the death of human being, is an action unlawful in itself, and is done deli-
berately, and with intention of mischief or great bodily harm to particular
individuals, or of mischief, indiscriminately fall where it may, and death
ensue against or beside the original intention of the party doing the act, it
will be murder.
(1. Buss, on Cr. p. 538.)
On this principle it is, if one intending to murder a particular individual,.
$hoots at him, and by accident the charge lodges in another person whom it
deprives of life, it is murder.
(Rex. vs. Plummer 12. Mod. pp. 627. 628. Rex. vs. Jarvis 2. Moody and;
R. p. 40.)
Also where the intent is to do some great bodily harm to another, and ac-
cidentally death ensues, it will be murder—as, if A intended only to hurt B,
m anger, or from preconceived malice {in a legal sense) and happen to kill
him—it will be no excuse that A did not intend all the mischief which fol-
SPECIAL JUDGE ADVOCATE.
39i
lowed'. . He heat B With all intention of doing him some bodily harm and 13
therefore answerable for all the harm* he did.
(Post. jpl 259. 1. liussi 011 Cr.: p. 540.) - - ;
, So,- if one lays poison for another, and a third finding it takes it and dies—-
it is murder.' • •' .»»! \ . •
(Gore's, Case, 9. Co. 81. a. Rex. w. Lewis 6. Car. &.P., p„ 191.)
. So, if one attempting to steal poultry', discharges, a gun to shoot the poul-
try, arid thereby aecidently kill a human being—\% is murder.
(1. East.. P. C. 225. -Edin's Penal Law,;3rd.^Ed.,p. 227.)
■i So, if a jailor,' with no design against'the life ofhis prisoner, confines him,
contrary to his will, in an unwholesome room, without allowing him the re-
quisites necessary to cleanliness, Whereby he contracts' a distemper of which
he dies—it is-murder.,
. (Rex. vs. Huggins 2. Stra. p. 822. 2. Ld. Raym:, p. 1574.)
i. So, if one with the purpose of procuring. an' abortion, does an. act, which
causes- the: child to be born so - prematurely,: as to be less capable of living,
and it dies from exposure to the external world—it is murderl
. (Reina vs. Wets., 2 Car. & E?t, p.' 78LV ,
. In all these instances, and others' of. like nature, the' party causing the
death is guilty—the same as if he had intended it-—of murder.
: In the instances above given, it may be said—arid as to the most of they*
it is true—that the man who is by the law-pronounced guilty of murder, is-
the immediate, proxiriiate, direct agent; who carises the'death ; but the law
does not-confine the guilt of murder to the man who, with an evil intent, by
his direct act causes, the death of another, but as. a gerieral. proposition, he.
whose act causes, in any way, directly of indirectly, the death of another,
kills him within the meaning of the Law. _ 'v. . ..
Hawkins DUts the f" " i id"" lT^ ^ ^na^ -. e Sai 0 kill an-
uuier —ana proceeds: . .JNot only he, who by wound or blow, or by.poison-
ing, strangling or famishing :&c., directly causes the death of another; but,'
also, in many cases, he who by Wilfully arid deliberately doing a thing, which'
apparently endangers anothers life, thereby Occasions his death; shall be, ad-
judged to kill him. And such was the case of him who carried his sick fath-
er, against his will, in a Cold frosty season, from one town to. ariother, by
reason whereof he died. Such also was the case of the harlot, who being.de-
livered of a child, left it in an orchard, covered oiily with, leaves, in which
condition it was struck by a kite, and died thereof. And in some cases, a
man shall be said "in the judgment of the law, to kill one, who is in truth ac-
tually killed, by another, or by himself; as, where one by duress of imprisr
onment compels a man, to accuse an innocent person, who on the evidence
is condemried and executed ; or where one incites a madman to kill himself
or another, &c. * * ' * . * . * Also, he who wilfully neg-
lects to prevent a mischief, which he may and ought to provide against, is,
as soriie have said, in judgment of law, the actual cause of the damage which
ensues; and therefore if a man have an ox or a horse, which he knows to be
mischievous, by -being used to gore or strike at those who come near them,
and do not tie them up, but leave them to their liberty, and they afterwards
kill a man, according to some opinions, the owner may be indicted, as having
himself feloniously killed him—arid this is agreeable to the Mosaical. law.
However it is agreed by all, such person is guilty of a very gross misdemean-
or." [1 Hawk. P. 0., p. 92, sees 4—8. (Cur-w's Ed.) ]
And I may therefore safely state, as the general conclusion from the rea-
son and analogy of the whole law of Homicide, that—whenever one man,
$92
Argument , OF , G. HAT#OO%
contributes by his act to the death of another, "brought about either by the
sole volition of a third person, or. by, such volition added to his own, he is
held responsible for the result, ihe same, as if his own unaided hand had
produced it; and whenever the volition, of whatever kind, put forth by"one
man, results in the death of another man, the former is to be charged with
"having committed the homicide. And it is immaterial whether the action
be of the mind or of the body, whether it operates solely, or concurrently
with other things; whether it was consented to by.the person on; whom it
operated or not; whether it was a blow, or. a drug, or an instrument, or oth-
fer thing used to procure an abortion; or a command addressed to an inferior
tmder obligation to obey, or an unlawful confinement, or a leaving of a de-
pendent person in a place of exposure, or a ball. discharged from a gun ;
whether it was accompanied with the acts of other persons concurring in
what was done, or operated alone; or was of any other nature whatsoever.
* And whether Powers and Watkins, when they first made the assault upon
Archy Beebee, intended to Jdll him, or had no such specific intent, but sim-
ply intended to punish him severely—when their assault resulted, as a natural
consequence from all the surroundings, in Beebee's being shot bj Tolar,
they are in law as responsible for that result as if it had been within their
original intention. And such is the law, not only according to the authori-
ties, and according to the general reason and analogy of the law of homicide,
and tlio general reason and analogy of the criminal law in all its depart-
ments ; but such ought to be the. lawy according to popular reason, and what
we call the common sense view of this question—as well. X pnt it to this
Court, as reasonable men—as laics, not learned in the law—knowing human
nature for what it is—-who in that crowd were the most guilty men, and the
proximate agents who caused Beebee's death—if they were not Powers and
Watkins, ^ and Tolar, who incited Powers to be-
gin jt—even if he did not tire the pistol? m evthj ,
to " bell the cat" is the one most difficult to find, and the one without whose
agency the popular feeling would not culminate in open violence.. It is so.
from boyhood—we haye all known school-boys, who were anxious to turn
Out the master, and conspired for that purpose ; and the difficulty always
was, and is, and, in such cases, always will be, to find the boy to strike the.
first blow. The process of turning out is easy enough afterwards. The mom
to strike the first blow is the man most difficult to find,. and he is .the man
who ought to be held most responsible for what follows. There are thou-
sands of men who would; shrink from beginning such deeds of blood as were
enacted at Fayetteville on that day, but who, the moment the first blow is
stricken, would rush into the conflict, and consummate the result towards.
which popular feeling tends. And what could-Powers and Watkins have"
anticipated—reasoning from the view of this question presented by common
sense and popular reason—human beings, and especially the common hu-
manity of Fayetteville, being constituted as is insisted by the Counsel for
the defence—what could these men have, expected,. when they commenced
the assault in that crowd, but that others would come to their assistance, and.
slay Beebee; and if, this is so, are not they, and their immediate inciter, the
most guilty^parties in this homicide? - -
May it please the Court, there is one more matter to which X wish to in-
vite the attention of the gentlemen composing this Commission, after which
X shall conclude what I have to say. I stated in opening the argument of
the facts of this case—and I have several times, as I proceeded, repeated the
statement—that undue importance had been attached, throughout the whole
SPECIAL JUDGE ADVOCATE.1
bf this trial, to the "settlement of the question of fact—whether the prisoner
Tolar did, or did not fire the pistol, the bullet from which slew Archy Bee1-
bee ? I consider it a question of very little importance—and I say nowj
that it is entirely unnecessary- to the conviction of any of the prisoners at
the bar—even of Tolar himself—that this Court should be satisfied that To-
la/r fired the pistol, the bullet from which slew Archy Beebee. .
As regards the prisoners .Watkins and Powers—it must be apparent to
the Court, that the degree of their guilt As the same, whether Tolar fired that
pistol, or Phillips fired it, or it was fired by some person to the Court un-
known. I think the Court will come to the conclusion that Tolar fired it—>
I do not see how it is possible for them to come to any other conclusion
than, that, if Tolar did not fire it, then that Phillips undoubtedly did fire
the pistol—Tbut this is absolutely certain, that some one in the crowd at the
market house in Fayetteville, on the 11th day of February, A. D. 1866,
fired the pistol the bullet from which slew Archy Beebee.
If the Court shall find that Tolar fired the pistol—or that Phillips fired it—
or that it was fired by some person to the Court unknown—it matters not
which one of these conclusions this Court shall arrive it—any one will be
sufficient—and shall find in addition either—that when the pistol was fired
the prisoners at the bar Watkins and Powers, were present and apparently
actually aiding and abetting the person who did fire it, in his felonious as-,
sault upon Beebee—or, that, when it was so fired, it was fired in pursuance
of previous combination, the design of which was to kill Beebee, or do him,
serious bodily harm, and that Powers and Watkins, as well as the person,
who fired the pistol, were parties to that combination—that is, were present,
and were constructively aiding and abetting in the commission of the homi-
cide—or, that while Powers and Watkins were, with their knives, assaulting
Beebee, and endeavoring to take him out of the. hands of the officers of the
r"knowledge or consent
and without any previous concert with them, came to muir Assistance and
slew the deceased—in any one of these three contingencies, it matters not
which, and it matters not who fired the pistol—Watkins and Powers are
guilty of murder. r,
The only question, then, that can arise, in case the Court comes to the
conclusion that Tolar did not fire the pistol—but that Phillips fired it—or
that some person, not named in the charge and specification, fired it, will,
be—whether—since the charge and specification before them allege that To-
lar fired the pistol, and that Waikins and Powers were present aiding and
abetting him—the Court are at liberty under this particular form of' charge,
and specification, to find the defendants Watkins and Powers guilty, when,
as a matter of fact, it appears in evidence that Tolar did not fire the pistol,
but some other person did, and Watkins and Powers were not aiding and
abetting Tolar, but were aiding and abetting the other man who really fired
the pistol. There is no difficulty, in deciding this question in favor of the
prosecution upon the most overwhelming authority, but I reserve its discus-
eion and consideration for the present. '
So much for Watkins and Powers, upon .the assumption that Tolar did
not fire the pistol the bullet from which slew Archy Beebee. But as regards
Tolar, himself, supposing he did not fire the pistol—how do we connect him
with the homicide ? Why, totally independent of the evidence of the seven-
teen witnesses for the prosecution, which establishes the fact that Tolar fired
the pistol—there is other evidence to prove that he was a party to the homi-
cide, almost, if not quite as strong and convincing, as that against Powers
394
ARGUMENT OF E. G- HAYWOOD,
and Watkins. For note—some one in the crowd in which Tolar was, fired
the lethal weapon—this is admitted on all sides; again—Tolar was present at
the killing—this is also an admitted fact; he was armed with a pistol—$$
E. P. Powers one of his own witnesses swore; he had a pistol in his hand at
the moment of the killing, so said Matthew Morgan, a witness introduced
and accredited.by him, and examined by the Court; he stood side by side
with the man who fired the pistol, within from three to five feet of Beebee,
and in his rear, at the very moment when he was shot from behind—so de-
posed Faircloth, a witness whom he himself put upon the stand. When in.
addition to this evidence furnished by himself, and which, unaided, strongly
indicates that he was a consenting party to the killing—we have the evi-
dence of McNeill, Kindrick, and Daley, the sexton, witnesses for the prose-
cution—which has been already called the attention of the Court—the.first
testifying, that he heard Tolar say to Powers, as the negro Beebee, appeared
at the head of the.stairs—" When he comes down you grab" him and break
the ice, and we will put him through "—the second testifying,; that, which
Beebee was descending the stairs, he heard Tolar say to some one, witness
eanhot say who—" he hoped he would not have to shoot—but if he did, it
would be a good shot—and the third testifying, that some twelve days af-
ter the homicide, Tolar, met the witness, asked what he owed him, (witness)
for digging Beebee's grave, and paid him for it;—when we have all this ev-
idence—the conclusion is almost irresistable, that if Tolar did not act as the
proximate agent in causing Beebee's death, he was at least present thereat,-
and a consenting party thereto. That he either actually aided and abetted
in the homicide—or constructively aided and abetted therein—or was a par-
ty to the previous combination, in pursuance of which Beebee was slain—or
was engaged with Powers'and Watkins in their felonious assault upon Bee-
bee, when the person who fired the pistol, without his knowledge And consent.
concert was
the person present, who advised, encouraged, and incited Powers to begin
that felonious assault. In any one . of these events, Tolar is as clearly guilty
of the.murder of Beebee, as if hq had fired the pistol the bullet from which
slew Archy Beebee—and must be convicted by the Court, unless there be
something in the form of the charge and specification here'preferred, which,
for the reasons "already suggested, forbid his conviction, under this particular
dliarge and specification. . *
Now this is the simplest view of the facts of this case possible, and the view
which requires the least proof on the part of the prosecution; the Court*
knows, as an admitted fact, that some one, by means of a bullet, dicharged
from a pistol, slew Archy Beebee at Fayetteville, on the eleventh day of
February A. D. 1866. It is a fact which cannot be disputed, and will not
be gainsayed, that these three prisoners at the bar were then and there pre-
sent. I do not understand it to be disputed—and at least there is no ground
on which to dispute the fact—that at or immediately before the moment of
the homicide the prisoners Power and Watkins were actually engaged, with
their knives, in an effort to strike the deceased, and take him out of the
hands, of the officers of the law.- And . there is strong—cogent—conclusive
evidence—which I need not here recapitulate, that the prisoner Tolar was
assenting and contributing to the criminul acts—both of Powers and Wat-
kins—and of the man whose hand slew Beebee. And I cannot for the life
of me see, in view of these admitted facts, and of this proof—even admitting
we have not proved that Tolar fired the pistol which slew Beebee—even ad-
mitting that the defence have proved that Phillips fired that pistol—even
SPECIAL JUDGE ADVOCATE.
395
admitting we have no proof, who fired, the pistol—I cannot for the life of me
see, how this Court can avoid convicting these prisoners—and all of these
prisoners—of the crime of murder—unless there be something in the form of
the charge and specification, which forbids the conviction of some one—ot
more—or all of them—upon this view of the facts. And there is no objee*
tion to their conviction on this ground as I shall now proceed to show.
For an indictment against a man as principal of the first degree is bus*
tained by proof of his being principal of the second degree; and, in, the same
manner, an indictment against him as principal in the second, degree, is supt
ported by proof that he is principal' of the first, degree. ..The law regards
every one who is present in a legal sense, aiding and abetting in a legal
sense, in a felony, as having committed the crime with his own hand—and
h,ence, it makes no difference, in law, whether he is charged with having com-
hutted the act, or with being present aiding and abetting therein. And as—i
if A, B, C, and D, were jointly , guilty of having each with hi3
own hand committed a crime—an indictment would be good which charged
A, B, and 0, and omitted X), altogether—and A, B, and 0, could be there-
upon convicted, though it appeared in evidence that D,:was a participant in
their guilt—so an indictment is good, which charges A', with having commit-*
ted the guilty fact and B, and O, with being present aiding and abetting
therein^ though it appear in evidence that I), a person not named in the in-
dietment, committed the felony, and that, A, B, and 0, were all, only present
and aiding and abetting, him therein—and A, B, and C, under such an in-
dietment, may be lawfully convicted.
The Court will observe, on looking into the charge and specification now
before them, that Tolar is charged with having fired the pistol, the bullet
from which slew- Archy Beebee; and that the prisoners. Bowers and Wat-
kins, together with Phillips and Mcltae, are charged; with being feloniously
present aiding and abetting in the murder. We might with eau.al nrpprietv
havfi oliargod e.11 iKo dftffjnf!a*!in Tjiio -oDetrge WKA Laving fired the
\pistol, the bullet from which slew the deceased The legal effect and operal
tion of the two forms of charge are the .same. How it is evident, to the
humblest understanding, if we had selected" the latter form of charge, it-
would have been no objection to convicting Tolar, Watkins and Powers, that
we had proved Phillips guilty as well as thet hree others just named—or that
we had failed in the proof against Phillips and McBae—or that it appeared)
in evidence, that other persons not named,in the charge were participants in-
the crime, as well as the three prisoners at the bar.
Counsel for accused, (Mr. Fuller): Since McRae and Phillips: are, toS
all intents and purposes, out of the indictment, I would like you to discus®
before the Court whether, if they become satisfied that a person not now
charged, in the bill of indictment be guilty of the murder, they can convict
these persons.
Counsel for prosecution, (Mr. Haywood): I will show the Court, express!
authority upon the point I understand my brother Fuller to make—which;
is—whether the Court are at liberty to convict Tolar, Watkins and Powers,:
under this charge and specification, if they are satisfied that all three of the
prisoners named were present, aiding ana abetting in the felony, but that
the immediate proximate act which caused death was the work of some third
person not named in the charge and specification ; but I cannot assent to
brother Fuller's proposition that "McRae and Phillips are, to all intents
and purposes, out of the indictment." ' ; . .
It is true, they themselves are out' qf this trial—but their names remain in
396 ARGUMENT OF E. G.' HAYWOOD,
the charge and specification-!—and so far as they affect the prisoners now oft
trial, the allegations against McRae, and Phillips, originally set forth in the
charge, &c., remain in full force, and are as valid, as if McRae and Phillips
had never been released and were now on trial. If for any reason, it were
essential to the validity of the form of this charge and specification, as
against Tolar, Watkins and Powers, that they should contain an allegation,
that, McRae and Phillips were or, that McRae was, or that Phillips was, felo-
niously present, aiding and abetting Tolar in Beebee's murder—the fact that
the Government has seen fit to enter a nolpros as to McRae and Phillips, does
not remove the allegation of their participation in the crime charged, from
the form of the charge and specification—that allegation still remains in the
charge and specification, as part of the allegations against the prisoners at
the bar ; just as it might have been inserted, though McRae and Phillips
had never been put upon trial at all, or though they had already been put
upon trial and acquitted or convicted. ■
So, if this Court shall arrive at the conclusion that Phillips fired the pistol
which killed Beebee, and I produce authorities to the effect—that on an indict-
men,t against A, B, C, and D, charging that A did the criminal act, and
that B, 0, and D, were feloniously present, aiding and abetting him therein—
and proof that I) did the act, and A, B, and C, were feloniously present and
aiding and abetting him—there is no valid objection, on account of the form
of indictment, to the conviction of A, B, and C—I shall have produced ex-
press authority, to justify this Court in convicting Tolar, Watkins and Pow-
ers under this charge and specification, if the Court believes that they were
feloniously present, aiding, and abetting Phillips in the murder—even though
the government has seen fit to enter a not pros as to Phillips.
I have merely noted the suggestion of my brother Fuller—that the effect
of the nol pros was to remove from the charge and specification the allega-
tions against McRae and Phillips—in passing-—-to show my dissent therefrom;
ana ior tear that x may not»»ilsTy tne all 1pointo of law which
I make in this connection, and that they may think, there is some view of
the law in this case, which renders it a matter of importance, that the charge
and^specification should contain an allegation, that Phillips was a participa-
tor in the criminal fact charged. But for myself, I think it entirely imma-
terial to a conviction of Tolar, Watkins and Powers under this charge, wlieth-
er the charge contains an allegation of Phillips' participation or not—wheth-
er the effect of the nol pros, was to strike out of the charge and specification
all the allegations against McRae and Tolar, for all purposes and intents, and
for every purpose and intent, or not.- For I shall contend, and proceed to
produce authority to show, that, if the evidence satisfies this Court, that
some person, not only, not now named—l>ut some person,who was never
named in the charge and specification, fired the pistol, the bullet from which
killed Archy Beebee, and that Tolar Powers and Watkins were feloniously
present, aidingandabettingthis person in the perpetration of the homicide-—
that then, they are bound to convict Tolar, Powers and Watkins of murder,
under this charge and specification.
^ For where A and B are present, and A commits an offence in wThich B
aids and assists him, the indictment may either allege the matter according
to the fact, or charge them both as principals in the first degree; for the act
of one is the act of the other.
(Foster, pp. 351, 425. 2 Hale P. C., p. 344. 2 Hawkins P. C., c. 23, see.
76. Young vs. Rex, 3 T. R., pp. 98, 105.)
8PEGIAL JUDGE ADVOCATE,1
397
. And upon such an indictment, in either' form, B who was present aiding
and abetting may be convicted, though A is acquitted.
(Foster, p. 351. 2 Hale P. G,, pp. 185, 292, 341, 345. 9 Co., p. 67. Bex
vs. Taylor, 1 Leach, (4th Ed.) p. 360.- 1 Hale P. C., pp. 437,463. 2 Hawk.
P. C., c. 46, sec. 195. B,eg. vs. Wallis, 1 Salk., p. 334. Bex vs. Culkin; 5
Oar. & P.yp. 121.)
Again: if an indictment for murder charges that A gave-the mortal stroke,
and that B was present aiding and abetting, both A and B may be con-
victed, though it turn out that B struck the blow and that A was present
aiding and abetting.
(Banson vs. Offley, 2 Show., p. 510. S. C., 3 Mod., p. 121. 2 Hale P^C.f
pp. 344, 345. Foster, p. 351. 1 Hale P. C., pp. 437, 463.) • <
Yet again : if an indictment for murder charges that A gave the mortal
stroke, and that B was present aiding and abetting, both A and B may be
convicted, though it turn out that C, a person not named in the indictment,
committed the act.
(Bex vs. Plummer, J. Kel., p. 109. 1 Stark. Crim. PI., (2d Ed.) pp. 81,
82. 1 Bishop Crim. L., sec. 596. 1 Chit. C L., p. 260. Bex vs. Bortwick,
1 Doug., p. 207. 1 Bishop Crim. Pr., sees. 545, 546. State vs. Cockman,
2 Winst., (N. C.) p. 95. 1 East P. C., pp. 350, 351.)
And now, if it please the Court, I shall bring my remarks to a conclusion.
I know I have been tedious; to some extent, it was necessary that I should
be so: the evidence has been voluminous—the trial has been a long one—and
the whole case not without difficulty. I have endeavored throughout its
entire progress, to be true to myself, faithful to the Government, honest
with the Court, and just to the prisoners. It is for you, gentlemen of this
Commission, to do the rest * you are the judges of the law, and of the fact. It
is a solemn moment for you ; it is a solmn moment for me ; it is a moment
fraught with awful solemnity to these three prisoners at the bar—a moment
which ought to call to all our minds that great day, when we must all appear
before the judgment seat, to answer for the deeds done in the body, whether
they be good, or whether they be evil. But for you, most of all, gentlemen
of this Commission, is this moment awfully and intensely solemn—for you
are this night invested with the highest powers that human government can
entrust to mortal man. The issues of life and death are in your hands. I
charge this Court as law—as law by which they are bound—as much bound
as by the law of homicide or any other law—that if a doubt—an honest doubt—
a reasonable doubt, as to the guilt of all, or any one of these prisoners at the
bar—as to the proof—the full proof of any fact essential to their or any of
their guilt—exist in the mind of this Court, they are bound to acquit that
prisoner—or all of the prisoners if the doubt extends to all—and to give
them the full benefit of the doubt. By this, I do not mean that this Court
is to encourage a blind and visionary incredulity which refuses to be satisfied
without the highest possible degree of proof, or the most minute particulars ;
but I do mean—that the Court, before convicting, must be as fully satisfied of
the guilt of each one of these defendants, as if one witness, well accredited,
uncontradicted, and uriimpeached, had positively sworn that he saw each
one of them plant a dagger in Archy Beebee's heart. But if the Court are
as well satisfied of the guilt of all these prisoners, as if their direct partici-
pation in the homicide were proved by a single well-accredited, uncontra-
dieted and unimpeached witness—it is their duty to convict, and to leave
the consequences with the higher authorities, and with God. I beg that
this Court will weigh the evidence with caution ; and will consider it even
SPECIAL JtTDGE ADVOCATE.
398
with leniency towards the accused, and with a tenderness1 for their rights;
and I am well satisfied, that this Court having so weighed and considered the
evidence, calmly, and maturely—will give their decision according to the
honest dictates of their own consciences,
As for my part in this prosecution—t may say in conclusion—that—on en-
teringthis, or any other Court of Justice for the performance of a profession-
al duty—I know no friend but my client; I acknowledge no party affilia-
tions ; I recognise no social ties—no political bonds—and no personal obliga-
tions, outside of the limits of my oath, as an honest, honorable and faithful
member of the legal profession ; and I have no standard for the regulation of
my conduct, but the laws of the land, as recognised and enforced by that
Government in whose tribunal I am conducting my cause.
I commit the prisoners in to the hands of the Court.
The Commission was then cleared for deliberation.