Record of Trial by General Court-Martial of Philip Caplovitz

Date

1918-10-01

Title

Record of Trial by General Court-Martial of Philip Caplovitz

Date

1918-10-01

Description

Record of court-martial trial.

Subject

Trial statement of WWI C.O.

Coverage

Fort Riley, Kansas

Creator

Fort Riley

Source

Swarthmore College Peace Collection

Publisher

Swarthmore College Peace Collection

Rights

Copyright is retained by the authors of items in the papers, or their descendants, as stipulated by United States Copyright law.

Format

image/jpg

Language

English

Transcription

Record of Trial by Genreal Court-Martial of Philip Caplovitz

Private, Company A, First Casual Battalion, Conscientious Objectors Fort Riley, Kansas

Index

Arraignment

Pleas

Statement of accused

Address by counsel

Reply by judge advocate

Findings

Previous convictions submitted

Sentences (or acquittal)

Proceedings in revision

Testimony

Name of Witness

- Waterman, Col. J. C.

- Donaldson, Lt. W. E.

- Carter, Lt. J. D.

[Page numbers not transcribed]

Exhibits

- Statement by Accused, Number A, Page where introduced 10

Carbon Copy of Record Furnished Accused

Proceedings of a general court-martial which convened at Camp Funston, Kansas, pursuant to

the following orders:

HEADQUARTERS

CAMP FUNSTON

KANSAS

October 1, 1918

FRI-AEF

Special Orders, No. 271

Extract

Corrected Copy

Destroy all copies previously sent

27. A General Courts-Martial is appointed to meet at Camp Funston, Kansas, on the 3d day of

October, 1918, at 2:00 P.M., ir as soon thereafter as practicable for the trial of such persons as

may be properly brought before it.

THE DETAIL FOR THE COURT

1. Major Chas. L. Brewster, Infantry, 164th Depot Brigade

2. Major Robert B. Pike, Infantry, 164th Depot Brigade

3. Major Anthon C. Jensen, Infantry, 164th Depot Brigade

4. Major H. W. Schaub, Infantry, 164th Depot Brigade,

5. Major Earl N. Hackney, Infantry, 164th Depot Brigade

6. Major Dick B. Foster, U.S.A. Camp Exchange

7. Major H. C. Fraser, Infantry, 164th Depot Brigade

8. Major George M. Corlett, Infantry, 164th Depot Brigade

9. Capt. Frank G. Cromley, Infantry, 164th Depot Brigade

10. Capt. William Levin, Infantry, 164th Depot Brigade

11. Capt. J. E. Fields, Q. M. C., 164th Depot Brigade

12. Capt. F. T. Windle, Q. M. C., Quartermaster Corps

13. Capt. Fred Armstrong, Jr., Infantry 164th Depot Brigade

2nd Lt. George Imbrie, Infantry. Judge Advocate, Camp Hq.

2nd Lt. Basil M. Stevens, Infantry, Asst. Judge Advocate - 164th Depot Brigade

The employment of a stenographic reporter is authorized.

By command of Major General Wood:

S. M. WILLIAMS,

Major, General Staff,

Executive Officer

Official:

M. A. SORGER?

Major, A. G. D., U. S. A.,

Adjutant

HEADQUARTERS

CAMP FUNSTON

KANSAS

October 8, 1918

MJM:AJM

Special Orders

No. 278

CORRECTED COPY

Destroy all copies previously sent

8. Major George M. Corlett, Infantry, U.S.A., 164th Depot Brigade, member of General Courts-Martial, appointed by paragraph 27, Special Orders 271, these headquarters, dated October 1, 1918, is hereby relieved from such duty and Captain Richard C. Meek, Infantry, U.S.A., 164th Depot Brigade, is appointed in his stead.

By command of Major General Wood:

S.M. WILLIAMS,

Major, General Staff,

Executive Officer,

OFFICIAL:

M.A. SORGER, Major, A.G.D., U.S.A., Adjutant

Camp Funston, Kansas,

October 14, 1918.

The court met pursuant to the foregoing orders at 9:05 P.M.

PRESENT

Major Chas. L. Brewster, Infantry, 164th Depot Brigade

Major Robert B. Pike, Infantry, 164th Depot Brigade

Major Anthon C. Jensen, Infantry, 164th Depot Brigade

Major H. W. Schaub, Infantry, 164th Depot Brigade

Major Earl N. Hackney, Infantry, 164th Depot Brigade

Major Dick B. Foster, U.S.A. Camp Exchange

Major H. C. Fraser, Infantry, 164th Depot Brigade

Capt. Frank G. Cromley, Infantry, 164th Depot Brigade

Capt. William Levin, Infantry, 164th Depot Brigade

Capt. J. E. Fields, Q. M. C., 164th Depot Brigade

Capt. Fred Armstrong, Jr., Infantry 164th Depot Brigade

2nd Lt. George Imbrie, Infantry. Judge Advocate, Camp Hq.

2nd Lt. (Now 1st) Basil M. Stevens, Infantry, Asst. Judge Advocate, 164th Depot Brigade

ABSENT

Capt. (Now Major) F.T. Windle, Q.M.C., Quartermaster Corps (Excused from court by Camp Executive Officer, Camp Funston, Kansas)

Capt. Richard C. Meek, Infantry, 164th Depot Brigade. (Reported sick in hospital)

The court then proceeded to the trial of Pvt. Philip Caplovitz, Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas, who does not desire counsel.

THE JUDGE ADVOCATE: In compliance with Section 96, M.C.M., 1917, I desire to state to the court that the judge advocate has advised the accused as follows: that he has the right to have counsel; that if he does not desire counsel it will be the duty of the judge advocate to act as his counsel; the nature of the charges and specifications against him; that he has a right to have a copy of the record of trial; the nature of the evidence for and against him; that a plea of not guilty is not a denial of guilt but merely a refusal to admit guilt and a demand upon the prosecution to prove the charges; that the maximum penalty that may be imposed upon each of the specifications if found guilty is death; that he has a right to offer any evidence and testimony he may desire; that he may testify in his own behalf subject to cross examination, and also may make a statement to the court, verbal or written, not under oath; and that any evidence he may desire to call will be summoned before the court. Is that correct? (ACCUSED: Yes)

Sgt. Geo. H. Westcot as sworn as reporter.

The judge advocate then informed the accused that he was entitled, without cost, to a copy of the record of trial in this case, and asked whether or not he desired such copy, to which the accused replied in the affirmative.

The orders appointing the court and amendment thereto was read to the accused, and he was asked if he objected to being tried by any member present named therein; to which the accused replied in the negative.

The members of the court, the judge advocate, and the assistant judge advocate were then sworn.

The accused was then arraigned upon the following charge and specification, which were read to the accused.

CHARGE I: Violation of the 64th Article of War.

Specification 1: In that Private Philip Caplovitz, Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas, having received a lawful command from Colonel J.C. Waterman, his superior officer, to load a pile of hay into a wagon, did on or about the 19th day of September, 1918, willfully disobey the same.

WILLIAM E. DONALDSON First Lieutenant, Infantry

To which the accused pleaded: To Specification 1, Charge I: Not Guilty. To Charge I: Not Guilty.

The paragraph of the Manual for Courts-Martial that set out the gist of each of the several offenses were read to the court by the judge advocate, namely:

(Page 208 Manual for Courts-Martial, paragraph 415)

SIXTY-FOURTH ARTICLE. Any person subject to military law who, on any pretense whatsoever, strikes his superior officer or draws or lifts up any weapon or offers any violence against him, being in the execution of his office, or willfully disobeys any lawful command of his superior officer, shall suffer death or such other punishment as a court-martial may direct.

By superior officer is meant not only the commanding officer of the accused, whatever may be the relative rank of the two, but any other commissioned officer of rank superior to that of the accused. That the accused did not know the officer to be his superior is available as defense.

(Page 209, bottom of page) The willful disobedience contemplated is such as shows an intentional defiance of authority, as where a soldier is given an order by an officer to do or cease from doing a particular thing at once and refuses to do what he is ordered or simply omits to do it.

(page 230, middle of page) That obedience to a command involved a violation of the accused's religious scruples is not a defense.

COLONEL J.C. WATERMAN, Colonel Calvalry, U.S. Army, Commanding Fort Riley, Kansas, a witness for the prosecution, was sworn and testified as follows:

QUESTIONS FOR PROSECUTION BY ASSISTANT JUDGE ADVOCATE:

Q: State your full name, rank, organization and station. A: J.C. Waterman, Colonel Calvary, Fort Riley, Kansas.

Q: Do you know the accused? If so state who he is. A: I know him as a conscientious objector. He is Philip Caplovitz, Company A, First Casual Battalion.

Q: First Casual Battalion where, Colonel? A: Fort Riley, Kansas.

Q: Have you ever seen this man before? A: Yes sir.

Q: Can you tell me about what date it was? A: The 19th of September, 1918.

Q: On that date what happened? A: I was in the camp, went down to the camp and gave, in addition to other men, gave this man orders to take tools from a wagon and load hay into the wagon.

Q: Did you give this order collectively or to him individually? A: To him individually but there were some others on the same day.

Q: What did he say when you told him to do this work? A: He said he wouldn’t do it, refused to do it.

Q: Did you say anything to him after he refused to do it? A: I repeated the order to him to be sure that he understood, and asked if he refused to obey the order and he said he refused.

Q: And what did he say then? A: Said he refused to do it.

Q: Did he do any part of this work? A: He didn’t do any part at all.

Q: Had you ever seen this man before this date? A: I had seen him but not – I had seen him before that date, two or three days before that.

Q: What was the occasion on which you saw him before that? A: I got them all together and read to them the President’s executive order relative to non-combatant service and explained it to them, and then went to each one personally and asked him if he understood that he could take this service, to which they all gave an affirmative answer. I then called upon those which would accept this non-combatant service to step forward, step out. He did not step out.

Q: The non-combatant service mentioned in that order was explained to them, giving the branches of service? A: I read the proclamation and then explained it to them. It was plain and didn’t need much explanation except to those which did not understand the language.

Q: What organization did you tell him he could go into to accept this non-combatant service? A: The medical corps, the quartermaster corps and engineers.

Q: What did he say, or did he say anything? A: I explained this to them collectively, what they could do, then went to each one and asked each if he understood, then I told them.

Q: What did he say? A: The same as the rest of them said, he gave me an affirmative answer each man individually.

Q: When when [sic] you asked them to step forward, those men that could accept this service, did he step forward? A: He did not.

CROSS EXAMINATION BY ACCUSED:

Q: Colonel, did I not say that I cannot load the hay rather than I refuse to load the hay? A: You repeated you cannot and finally said you would not.

Q: So at first I said “I cannot” and then said “I would not.” A: I think you said those words. You finally flatly refused. I asked you several times. You made no attempt to comply with the order or to obey.

EXAMINATION BY THE COURT:

Q: Do you know what religion this man is, Colonel? A: No I don’t know his religion but I presume he is one of the Holy Jumpers. I am not certain about it, however.

Q: When the accused was offered the opportunity to elect non-combatant service, was it explained to him that the service in the engineers corps, quartermaster corps or medical corps would be behind the zone of operation? A: Yes, as the President’s executive order said.

No further examination desired by the accused.

LT. DONALDSON, 1st Lieutenant, Infantry, U.S. Army, Commanding Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas, a witness for the prosecution, was sworn and testified as follows:

QUESTIONS BY PROSECUTION:

Q: State your full name, rank, organization and station. A: William E. Donaldson, First Lieutenant, Infantry, U.S. Army, commanding Company A, Casual Battalion, Conscientious Objectors, Fort Riley, Kansas.

Q. Do you know the accused? If so, state who he is. A. Private Philip Caplovitz, Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas.

Q: Have you ever had any occasion to take any particular notice of this man before this date? A: Yes sir.

Q: What was the occasion? A: I was present in the camp of Conscientious Objectors, Company A, 1st Casual Battalion, on or about September 19th, 1918, and I heard Colonel Waterman, Commanding Officer, Fort Riley, order Private Caplovitz to load a pile of hay into a wagon. Private Caplovitz said “I won’t do it” Colonel Waterman then ordered him again to load that pile of hay into the wagon and he replied again “I won’t do it”. Colonel Waterman then said to him “do you” asked him whether he refused to obey that order and Private Caplovitz said “I refuse”.

Q: Did he do any of the work? A: No sir.

Q: Were you ever present at any other interview between the Colonel and this man? A: Yes sir.

Q: What was the substance of that interview? A: Colonel Waterman explained to each man non-combatant service and said “any man who wishes to enter non-combatant service” after explaining it to each man “step in the front”. Private Caplovitz was present at that time and refused non-combatant service.

Q: About when was this in relation to September 19th, 1918? A: It happened on September 19th, 1918, and also on September 18th, 1918.

Q: What you mean by happened on September 19th was the time he received this order to load the hay? A: Just before that he was explaining non-combatant service and they refused it.

Q: Non-combatant service was explained to him on two dates, the 18th and 19th? A: Yes sir.

Q: Did you hear him refuse this service? A: He did not step to the front as ordered by the Colonel if he wished to accept it.

Q: Do you know whether or not he understood that order? A: Yes sir.

Q: How do you know that? A: For the simple reason that the order was read very loud and every man was asked whether he understood.

Q: And the answer this man gave to that question, did you hear that? A: I did not hear his answer but as I recollect he was standing so that it would have been impossible for him not to hear.

Q: Have you ever had much occasion to observe this man, to make any

observation of this man?

A: Yes sir.

Q: What would you say as to his mental condition on this morning in regard to other days?

A: He was normal mentally.

Q: How does his mentality on average days strike you? Is he a man of average mentality or low mentality?

A: He is a man of the average mentality.

CROSS EXAMINATION BY ACCUSED:

Q: Lieutenant, the day that the Colonel told me to load this hay, isn't it true that I said "I cannot do it" rather than said "I refuse to do it"?

A: You said you wouldn't do it and also that you refused.

Q: I did not say at any time then "I cannot do it?

A: I do not remember your saying any such thing.

EXAMINATION BY THE COURT:

Q.: What religion is this man?

A: I believe he is an Orthodox Jew.

Q: Did he ever do any work before this time?

The Judge Advocate, on behalf of accused, objected to question as being prejudicial to the interests of the accused, and the question withdrawn by court.

Examination resumed by the court.

Q: Have these branches of service, the non-combatant service, been thoroughly explained; that is, in the way that these men understood what they are?

A: Yes sir.

Q: On your cross examination you said to the accused that he said first "I won't do it" then "I refuse to do it.". Do you remember definitely that he said "I refuse to do it"?

A: When the Colonel asked him whether or not, whether he refused to obey the order, he said "I refuse".

QUESTION BY COURT: Q: Does the accused desire to ask witness any further questions?

A: Nothing further.

LT. CARTER, First Lieutenant, Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas, a witness for the prosecution, was sworn and testified as follows:

QUESTIONS BY PROSECUTION:

Q: State your full name, organization, station and rank.

A: James D. Carter, First Lieutenant, Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas.

Q: Do you know the accused? If so state who he is.

A: He is Private Philip Caplovitz, Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas.

Q: Have you ever had any particular occasion to take notice of the accused before this?

A: Yes sir.

Q: What was the occasion?

A: On or about the 19th day of September, 1918, I was in the camp of Company A, First Casual Battalion, Conscientious Objectors, Fort Riley, Kansas, and heard Colonel Waterman order Private Caplovitz to load a pile of hay in a wagon and Private Caplovitz replied "I will not do it". Colonel Waterman then said "you mean you refused to do it?" and Private Caplovitz replied "Yes sir I refuse".

Q: Did he do any part of the work?

A: No sir.

Q: Were you present at any other interview between Colonel Waterman and this man?

A: Well at -- I was present when the Colonel offered these men non-combatant service a short while before.

Q: Do you know how long before?

A: It was three or four days; I am not sure.

Q: Was this man among the men to whom this service was offered?

A: Yes sir.

Q: Did you see him there yourself?

A: Well sir I don't know as I singled him out from any of the others but they were all in camp.

Q: Were there any absentees?

A: There were only two absentees and they were in the hospital at the time and one of them is still in the hospital.

Q: Was this man one of those in the hospital?

A: No sir.

Q: How do you know they were all present except these two?

A: The roll was called.

Q: What happened at that time?

A: Colonel Waterman offered them non-combatant service either in the Engineers, Quartermaster or Hospital Corpr, explained it to them, read the order and explained it to them, and gave them a day or so to study the matter over and see which branch of the service they cared to go into.

Q: Were you present when the Colonel asked them or put it up to them whether or not they would accept this service?

A: Yes sir I was present when he told, when he put this proposition up to them to accept one branch of the service.

Q: When he asked for some indication of those who would accept this service, what did he tell them to do?

A: He told them to think it over and the next day he asked them if anyone there had decided to accept service and for anyone that had to step forward.

Q: Did this man step forward?

A. No sir.

No cross examination desired by accused.

EXAMINATION BY COURT:

Q: What religion is this man?

A: Sir?

Q: What religion is this man?

A: I do not remember what his religion is.

No cross examination by accused.

PROSECUTION: The prosecution rests.

THE PRESIDENT: You, the accused, are informed that you have the right to testify in your own behalf, and subject to cross examination off any evidence in denial, in explanation, or in contradiction of the charges against you. If you do testify your testimony will be given the weight of evidence the same as any other witness, and you have not be cross examined beyond the field of your direct examination, except to test your credibility as a witness. You may also make an unsworn verbal or written statement of the cause, which may consist of a brief summary or version of the evidence, with such explanation or allegation of motive, excuse, matter of extenuation, etc., as you may desire to offer, or it may embrace with the facts, a presentation also of the law of the case an an argument both upon the fact and the law. Such statement is not testimony and there is not subject to cross-examination, but as a personal defense or argument, however, it may and properly should be taken into consideration by the court. You do not have to do either and your failure to do either will not create any presumptions against you. Do you fully understand all that I have said to you? (ACCUSED: Yes.) Knowing those rights, do you now wish to testify and to make a statement in your own behalf or to do either? (ACCUSED: I desire to make a written statement)

JUDGE ADVOCATE TO ACCUSED: Do you desire to have any witnesses summoned to appear for you?

ACCUSED: No.

ACCUSED: Gentlemen: I will try to make clear my statement as much as it is within my power. Now regarding my position towards militaryism [sic] and war, I do this because I feel that I owe to my fellow man of the present and also to the posterity so the people may judge me, not as a violator of any article of war, but as one who seeks to maintain the freedom of conscience of this country. I therefore hope

that the country may judge me in this light, and my action were in an effort to vindicate my principles in which I believe. When I was drafted, I endeavored to make clear my position as a conscientious objector towards all wars and the use of armed force and violence as a means of settling international difficulties. As an international socialist, I could openly see that the course of wars are the results of the capitalist system and its commercial interest for the benefit of the capitalists among the nations of the world, and the military organization is being used for the purpose to protect her wishes. I therefore firmly believe that militarism the world over is used exclusively for the purpose of maintaining this system which makes wars unavoidable among nations of the world. Militaryism [sic] in order to accomplish its aim, destroys the very foundation of civilization and the distruction [sic] of human life without pity or consideration, and judging from the humanitarian point of view, I believe that no man has the right to take away another man's life, which I hold that the other man has the same right to live upon this world. In my mind militaryism [sic] can never become an instrument in establishing the ideal we claim we are fighting for -- to make the world safe for democracy. I cannot justify that when desiring and fighting for democracy shall be in its defense the same instrument as the militaryism [sic] in Germany, for I believe that a better way could be established to settle disputes between nations, through reasoning and a more of an understanding. These are the firm reasons why I could not conscientiously participate in any kind of work in the military organization and therefore I believe that freedom of conscience shall be recognized. If the freedom of conscience in [sic] taken away I shall be ready to suffer for it, and say, as Prince L. Tolstoie [sic] the greatest Russian writer said in his Resurrection quotes [sic] the American Philosopher Henry David Thoreau that where a country takes away the freedom of conscience, the best place for an honest citizen is to be in jail. Philip Caplovitz.

ACCUSED: The witnesses have said that I refused in a matter that I personally felt towards them, or that he is one as a personal enemy of mine. I did not do that. I only said I cannot do this work which is a part of military work.

The paper was then received in evidence and is appended, marked "A".

The prosecution announced they had no argument to make.

Accused was given opportunity to make further argument and replied:

ACCUSED: I do not see any reason to argue. I have said it and that is all; I could not bring anything further to testify. I only say so far that I did any different than what they say. Maybe not want to understand me, I don't know, maybe it was understood that I refuse that I wasn't conscientiously able to do work on account it was a part of the military organization.

The court was closed at 9:51 P.M. and finds the accused:

Of Specification 1, Charge I: ________________

Of Charge I: ___________________

The court was opened at 9:53 P.M. and the judge advocate, in the

presence of the accused, stated that he had no evidence of previous conviction or record of service to submit.

The court was closed at 9:54 P.M. and ____________________

the accused


The court adjourned at 9:55 P.M.

GEORGE IMRIE, 2d Lt. Infantry

CHARLES L. BREWSTER, Major, Infantry, 164th D.B., President

Citation

Fort Riley, “Record of Trial by General Court-Martial of Philip Caplovitz,” Conscientious Objection & the Great War: 1914-1920, accessed May 27, 2018, http://cosandgreatwar.swarthmore.edu/items/show/1189.

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