tenden complained during the day that they were not permitted to engage the enemy?

I do not know that they complained the day, for I was not with them but I thought from General Crittenden's conversation that he felt a little aggrieved because he was not allowed to engage the enemy, though he did not say so in so many words. I heard General Thomas say that it was very late when he heard the fight was going on, and wondered why he had not been informed of it. He heard the artillery, and my impression now is that he said upon inquiring as to what it meant the reply came that Colonel Gay was amusing himself with the rebel cavalry.

The judge-advocate proposes, in view of the movement of the Army of the Cumberland, to arrest for the present the case of the Government, reserving to himself the right hereafter to introduce further evidence, for the purpose of summoning the witnesses General Buell wishes to have examined.

Colonel G. D. WAGNER (a witness for the Government), being duly sworn by the judge-advocate, testified as follows:

By the JUDGE-ADVOCATE:

Question. State, if you please, your name and position in the United States service.

G. D. Wagner; colonel of the Fifteenth Indiana Volunteers.

Question. State whether you were at the battle of Perryville; whether you took any part in that fight, and what you saw of the enemy on the night of the 8th, and what you know of his subsequent movements on the morning of the 9th.

I was at the battle of Perryville and took part in that fight. On the night of the 8th I saw very little of the enemy except his fires, or moving of troops except stragglers and unorganized bodies around the fires. These were on the left-about a mile on the left and half a mile to the front-till about daylight or a little before. Some time before daylight I heard considerable moving of wheels, which I supposed to be artillery. It was retiring. I did not see any troops at the time, but at break of day I rode some distance to the front of my command, gained an eminence from which I could look into the town of Perryville, and saw the enemy, as I thought, retiring by the Danville road. This was so early that I could just see a black line, but could not tell whether it was infantry or cavalry. When it became a little lighter I heard this column passing up the creek toward the right of our army, and the thought struck me that they were changing position of their forces from the left of Perryville to the right of our army-about an hour and a half after sunup-a body of cavalry-I should think a thousand-from the front on the right of our army. These I supposed to be the troops I saw going in that direction early in the morning. When I became convinced that they were retiring I immediately ordered forward my brigade and Cox's battery and commenced shelling them. Colonel Carlin, who was at my right, also advanced. Colonel Connor, [?] commanding a brigade of the division belonging to General Gilbert's corps, made a similar advance. The skirmishers of my command entered the town and took possession of it, capturing a few prisoners. They entered the town about sunup, or it might have been half an hour later. It was as quick as it could be done after daylight. I made another small advance to gain a better position for the battery; another body of rebel troops then appeared coming out of the woods to the left of the town near the springs, with the evident intention of gaining the Danville road, by which they retired. There were scattering troops seen in front, but after a few minutes there was no body of troops in sight. This was after shelling the first column. These troops marched down the road, and we had our battery in such a position as to enfilade the road. The enemy had two guns, which were put in position just at daylight back of the town, and they remained there till the last troops came. Captain Cox's battery again opened upon this body of troops and scattered them. A portion of the troops went up the road very orderly.

Immediately after these troops passed the cavalry I have referred to retired from the right of the army in the range of my guns, and I ordered my battery to open upon them, but two or three colonels and officers standing by insisted that they were our cavalry advancing. They came out cautiously from the wood and formed in line, but did not act like an enemy advancing, so we did not open fire on them. I think that cavalry was the body of troops going, as I supposed, toward the right in the morning