[See The shooting of Jesse Wharton]
[Index]
- start of prosecution case
- testimony, probably of Brevet Major D P Whiting
- testimony of Lt Chapin
- testimony of Captain McLaws
- testimony of 1st Lieutenant McKeever
[Result (general orders, 16, 1858)]
[a slightly revised version of this was published in the Serial Set]GENERAL ORDERS, No. 16.
WAR DEPARTMENT, ADJUTANT-GENERAL'S OFFICE,
Washington, December 16, 1858.
I. .... At the General Court Martial which convened at Camp Floyd, Utah Territory, pursuant to "Special Orders", No. 96, from the Head Quarters of the Department of Utah, and of which Brevet Colonel CHARLES F. SMITH, Lieut. Colonel of the 10th Regiment of Infantry, is President, was arraigned and tried Second Lieutenant Jesse B. Wharton, of the 7th Regiment of Infantry, on the following charges and specifications, viz:
CHARGE I: "Drunkenness on duty." [see article 45, Articles of War]
Specification 1st .... "In this; That he, Second Lieutenant Jesse B. Wharton, of the 7th Regiment of Infantry, was drunk when on duty with his company at dress parade. This at the camp of part of the 5th Column Utah forces, on Big Blue river, K. T., on or about June 28, 1858."
Specification 2d. "In this; That he, Second Lieutenant Jesse B. Wharton, of the 7th Regiment of Infantry, was drunk when on duty as officer of the day at the camp of the 5th Column, Utah forces near Fort Kearney, N.T., on or about July 20, 1858."
CHARGE II: "Conduct to the prejudice of good order and military discipline." [see article 99, Articles of War]
Specification... "In this; That Second Lieutenant Jesse B. Wharton, 7th Infantry U.S.A., on or about the 19th September, 1858, while on duty with his company as pioneers, being part of the 5th column, Utah forces, working the new road between Fort Bridger and Camp Floyd, U.T., did absent himself from his party after having been specially ordered to remain with it by Brevet Major D. P. Whiting, 7th Infantry, commanding the column, and was found in a state of intoxication by the side of the road, after the passage of the troops. This near Weber River, U.T.."
CHARGE III: "Breach of arrest."
Specification... "In this; That Second Lieutenant Jesse B. Wharton, 7th Infantry, U.S.A., on or about the 19th September, 1858, near Weber River, U.T., after having been placed in arrest and ordered to join the battalion to which he belonged by his commanding officer, Brevet Major Whiting, 7th Infantry, commanding 5th Column Utah forces, did, after complying with said order, absent himself from his battalion until after it had been for some hours encamped."
To which charges and specifications the accused pleaded as follows:
To the 1st Specification, 1st Charge, "Guilty."
To the 2d Specification, 1st Charge, "Guilty."
To the 1st Charge, "Guilty."
To the Specification, 2d Charge, "Not guilty."
To the 2d Charge, "Not guilty."
To the Specification, 3d Charge, "Not guilty."
To the 3d Charge, "Not guilty."
FINDINGS OF THE COURT.
The Court, after maturely considering the evidence, finds the accused, Second Lieutenant Jesse B. Wharton, of the 7th regiment of Infantry, as follows:
Of the 1st Specification, 1st Charge, "Guilty."
Of the 2d Specification, 1st Charge, "Guilty."
Of the 1st Charge, "Guilty."
Of the Specification, 2d Charge, "Guilty."
Of the 2d Charge, "Guilty."
Of the Specification, 3d Charge, "Guilty."
Of the 3d Charge, "Guilty."
SENTENCE.
And the Court does, therefore, sentence the said Second Lieutenant Jesse B. Wharton of the 7th regiment of Infantry, "To be cashiered."
II...In conformity with the 65th Article of War, the proceedings of the General Court Martial in the foregoing case have been transmitted to the Secretary of War, and by him laid before the President of the United States. The following are his orders thereon:
WAR DEPARTMENT, December 13, 1858.
The sentence of the Court is confirmed. But in consideration of the youth of Lieutenant Wharton, and other circumstances in his favor, which have been brought to the attention of the Department, the sentence is mitigated to suspension from rank and pay for twelve months.
J. B. FLOYD, Secretary of War.III... At the expiration of the period for which he is suspended from rank and pay, Lieutenant Wharton will join his company wherever it may then be serving.
IV... The General Court Martial of which Bvt. Colonel CHARLES F. SMITH is President, is hereby dissolved.
BY ORDER OF THE SECRETARY OF WAR:
S. COOPER, Adjutant General.Official: W. A. Nichols Asst. Adjt. Genl.
[Some irrelevant material]
[This two-page letter seems to be irrelevant, but was included in the copy the National Archives sent me.]
Leavenworth City Kansas
Teritory [sic] March 4th 59
E
Dear Sir
I received your note of February 10 and am much obliged to you for your trouble which you have taken in respect to my watch which watch is certainly mine it is a small (Ladies) watch No 47783 made by Tobias [?] an [sic] Co. Liverpool. I am very glad that you found it, but sorry to think that a man of Major Williams Company would be guilty of so main [sic; presumably 'mean'] and petty an action I did not think that there was a man in the Company [who] would have stolen it from me Davis would have been the last one that I would have suspected However I am glad that it is found [fo]r it was a great loss to me Taylor handed me the note this day he was in today in town he told me he was going to write to you and Cronan he is doing first rate the family is all well
I was sorry to hear that their [sic] was some of the men sick I am glad to hear that the major is in good health Cronan mentions in Taylors letter that he never seen him in better health I am also happy to add that we are enjoying the same blessing my wife joins me in sending our kind wishes to you
When you write address Major Chase for me
Richard H Jackson1st Sergt Company L 4th Arty
Yours truly
James Monaghan
[the next eight pages, which I have not transcribed, are about a Court of Inquiry into actions of Col Grayson, held at Fort Bliss, Texas]
[transmittal sheet]
[transmittal and cover sheet]
H H 980
CM 21 1858
Proceedings of a Genl Court Martial convened at Camp Floyd U. T. by S.O. No 95 Hd qrs dept of Utah Oct 4 1858
Bvt Col C F Smith
Lt Col 10 Inf
President
Capt Jn Jones 7th Inft Judge Advocate
Prisoners Tried
1. 2 Lt Jesse B Wharton 7th Infantry
Recd Dept of Utah October 13" 1858
[column 2]
Head Quarters Department of Utah
Camp Floyd U.T. October 13 1858
Respectfully transmitted to the Secretary of War in conformity to the requirements of the 65th Article of War
A. G. [?] JohnstonColonel 2d Cavalry +
Bvt. Brig Genl USA
Comdg
[This paragraph is in a different handwriting and is much lighter than the other writing--it presumably is a response to the order below it]
Lieut Wharton will accordingly be released from arrest and at the expiration of his suspension to go into effect on the receipt of this order by the Dept Commanding will join his company wherever it may be
The sentence of the court is confirmed. But in consideration of the youth of Lieut Wharton, + other circumstances in his favor which have been brought to the attention of the Department, the sentence is mitigated to suspension from rank + pay for twelve months.
War DepartDec 13 /58
J B Floyd
Secy of War
[column 3]
General order
No 16 (AGO) Dec 16 /58
[preliminaries]
[page 1 ]
Proceedings of a General Court Martial convened at Camp Floyd U.T. by Virtue of the following orders.
Head Quarters Department of Utah
Camp Floyd U.T. Oct 4 1858
Special Orders No 96
A General Court Martial is hereby appointed to meet in this Camp, at 10.00 A.M. on the 7th day of October 1858 or as soon thereafter as practicable for the trial of such officers and enlisted men as may be brought before it.
| 1 | Bvt Colonel | Charles F Smith | Lt Col | 10" Inf |
| 2 | " Lieut Colonel | Daniel Puzzler [?] | Capt | 5" " |
| 3 | Major | Isaac Lynde | 7" " | |
| 4 | Captain | Henry Little | 7" " | |
| 5 | " | Reuben F [?] Campbell | 2d Dragoons [?] | |
| 6 | " | Lafayette McLaws | 7" Inft | |
| 7 | " | Henry Heth [?] | 10" " | |
| 8 | 1' Lieutenant | Joseph Apdegraff [?] | 5" " | |
| [page 2 ] | ||||
| 9 | 1' Lieutenant | Peter W [?] L Plympton [?] | 7" Inft | |
| 10 | 1' " | Lewis H Marshall [?] | 10" Inft | |
| 11 | 1' " | John H Forney | 10" Inft | |
| 12 | 1' " | Howard C Stith | 5" Inft | |
| 13 | 2d " | David H Brotherton [?] | 5" Inft | |
Captain John M Jones 7th Infantry Judge Advocate
By order of Bvt Brig Genl A S Johnston
Signed F I Porter [?]
Asst Adj General
Head Quarters Dept of Utah
Camp Floyd U.T. Oct 6. 1858
Special Orders No 98
Major Seth Eastman [?] 5" Infantry is detailed as a member of the General Court Martial appointed in Special Orders No 96 in place of Bvt Lt Colonel Daniel Puzzler Captain 5" Infantry, who is hereby relieved from the detail.
[page 3 ]
By order of Bvt Brig Genl A S Johnston
(Signed) F I Porter
Asst Adj General
Camp Floyd U.T. Oct 9 1858
The Court met pursuant to the above order and adjournment.
Present
| 1 | Bvt Colonel | Charles F Smith | Lt Col | 10' Inf |
| 2 | Major | Isaac Lynde | 7' " | |
| 3 | Major | Seth Eastman | 5' " | |
| 4 | Captain | Henry Little | 7' " | |
| 5 | Captain | Reuben F [?] Campbell | 2d Dragoons | |
| 6 | Captain | Lafayette McLaws | 7' Inft | |
| 7 | Captain | Henry Heth [?] | 10' " | |
| 8 | 1' Lieutenant | Joseph Apdegraff | 5' " | |
| 9 | 1' Lieutenant | Peter W [?] L Plympton [?] | 7' " | |
| 10 | 1' Lieutenant | Louis H Marshall | 10' " | |
| 11 | 1' Lieutenant | John H Forney | 10' " | |
| 12 | 1' Lieutenant | Howard C Stith | 5' " | |
| 13 | 2' Lieutenant | David H Brotherton | 5' " |
Captain John M Jones 7" Inf Judge Advocate
[page 4 ]
The Court then proceeded to the trial of 2d Lieutenant Jesse B. Wharton of the 7th Infantry who appeared before the Court.
The orders appointing the Court were then read in his presence, and Captain Henry Little 7th Infantry, a member, stated that some time since, not being aware that he was to be a member, he had expressed an opinion as to what should be the sentence of the Court in the case of the officer to be tried, in the event of conviction, and that he feels it due to the accused to make this statement.
The accused was then asked by the Judge Advocate if he objected to any member named in the detail.
to which he replied "I object to Capt. McLaws
First, because he is the principal [sic] witness against me in the two charges + specifications to which I shall plead "not guilty"
[page 5 ]
Second, because I am no friend to Captain McLaws, and may ask him some questions, which may have a tendency to prejudice him against me."
Captain McLaws stated that he "had never seen the charges, but supposed the one to which he was a witness was for breach of arrest. As to any enmity he had none whatever toward Ln Wharton"
The Court was then closed, Capt McLaws retiring, and decided to excuse Captain McLaws from taking his seat as a member during the trial of this case. The Court was opened. Capt McLaws and the accused reappeared + the decision was announced + Capt McLaws withdrew.
The accused was then asked if he objected to any other member, to which he replied in the negative.
[arraignment]
The Court and the Judge Advocate were then duly sworn in his presence, and 2 Lieutenant Jesse B Wharton, 7th Infantry
[page 6 ]
was arraigned on the following Charges and Specifications.
Charge 1st
"Drunkenness on duty"
Specification 1st
In this, that he 2 Lieutenant Jesse B. Wharton of the 7th Regiment of Infantry was drunk when on duty with his Company at dress parade. This at the Camp of part of the 5th Column Utah forces, on Big Blue River K. T. on or about June 18 1858.
Specification 2nd
In this, that he 2 Lieutenant Jesse B. Wharton, of the 7th Regiment of Infantry, was drunk when on duty as officer of the day at the Camp of the 5" Column Utah Forces, near Fort Kearney, N.T. on or about July 20, 1858.
Charge 2nd
Conduct to the prejudice of good order and
[page 7 ]
and [sic] military discipline.
Specification
In this that 2 Lieutenant Jesse B Wharton 7" Infantry U.S.A. on or about the 19. September 1858 while on duty with his Company as pioneers being part of the 5th Column Utah forces working the new road between Fort Bridger and Camp Floyd U.T. did absent himself from his party after having been specially ordered to remain with it by Bvt Major D. P. Whiting, 7th Inf, Commanding the Column, and was found in a state of intoxication by the side of the road after the passage of the troops. This near Weber River U.T.
Charge 3rd
Breach of Arrest.
Specification
In this that 2 Lieutenant Jesse B. Wharton 7" Infantry U.S.A. on or about the 19. September 1858 near Weber River U.T. after having been placed in arrest and
[page 8 ]
ordered to join the Battalion to which he belonged, by his commanding officer Bvt Major Whiting 7th Infantry comdg 5th Column Utah forces, did after complying with said order, absent himself from his Battalion until after it had been for some hours encamped.
Capt 7th Infantry
Judge Advocate
To which the accused pleaded as follows.
| To the 1st Specification 1st Charge | Guilty |
| To the 2d Specification 1st Charge | Guilty |
| To the 1st Charge | Guilty |
| To the specification 2d Charge | Not Guilty |
| To the 2d Charge | Not Guilty |
| To the Specification 3d Charge | Not Guilty |
| To the 3d Charge | Not Guilty |
[start of prosecution case]
[testimony of Brevet Major D P Whiting]
Bvt Major D. P. Whiting, Capt 7th Inft
[page 9 ]
a witness for the prosecution being duly sworn was interrogated as follows.
Qu. by J.A. What was the official relation existing between yourself and the accused on the 19. Sept last?
Answer. The accused was subaltern of the Company doing Pioneer duty on that day opening the road on the route from Fort Bridger. The whole party under Lt Plummer, acting under my orders were at the point of leaving White Clay Creek for Weber River.
Qu. by J.A. What orders [two illegible words] did you give the accused in relation to his party?
Answer. I told him to remain with the leading detachment provided with axes and superintend the cutting, explaining to him that the work had been slighted the day before in consequence of the absence of an officer and I wished him to give his personal attention to it.
[page 10 ]
qu. by J.A. Do you know if this order was obeyed?
Answer. I concluded it was not, as I saw him soon afterwards one or two hundred yards in advance of all [?] the working party, sitting under a tree. Upon seeing him I sent Ln Chapin with an order for him to join his party immediately, and stay with it. Some time after the Column and working parties moved on for several miles and I saw nothing of the accused.
Qu. by J.A. What official action did you take in relation to the matter?
Ans: Upon his riding up and overtaking me I sent Ln Chapin to order him to join his Battalion and to report himself in arrest to the Commander.
Qu. by J.A. Where with reference to him was the working party to which the accused was attached at the time he rode
[page 11 ]
up to overtake you?
Ans. It was scattered in my vicinity there being no work at that portion of the road.
The direct examination of the witness was here closed.
Cross Examination
Qu. by accused. Did you not on that morning order me to report to Ln Plummer who had charge of the Company?
Ans. I don't remember that I did. I gave Ln Plummer on that morning or the evening previous particular directions to extend to Ln Wharton as I afterwards myself gave him.
Qu. by accused. Did you or not that morning say to me as you were passing my tent, "Wharton, Plummer has charge of the Company today."
Ans. It is very probable I did.
Qu. by accused. Placed in my position, would you or not have considered a
[page 12 ]
remark like that in the [illegible; looks like 'brig?der'] of an order?
Answer. I should have considered it as it was intended, as official information of the name of the officer having the General Control of the working parties.
Qu. by accused. Was I to understand by that that I was to be under the immediate orders of the said officer?
Answer. Yes, specially as I had previously given orders to that officer in regard to the duties the accused was to perform.
Qu. by accused. Do you know whether or not I was acting under orders from Ln Plummer or for what purpose I was where you saw me at the time you sent Ln Chapin to me.
Answer. I do not know of any orders Ln Plummer might have given him and could imagine no object in his being detached from his party, after the direction I had myself given him.
On leaving the camp that morning
[page 13 ]
I myself rode ahead with the Corps [?] party.
When I arrived at the point at which the cutting was to commence by advice of the guide, I directed the party how to proceed and waited for Ln Wharton who was in rear to come up.
I pointed out to him the direction and character of the work to be done at that point and directed him to remain with the party and see that it was properly done.
I afterwards rode on and when I saw Ln Wharton at the time mentioned his party was still at work and hadn't finished their task.
Qu. by accused. Are you positive that all this occurred on the day you specify?
Answer. I cant [sic] be mistaken as on that day, the Company to which the accused belonged was on detail for service, on pioneer duty, and it was the last service labor it was necessary to perform before striking the Weber the same morning.
Qu. by accused. Was not the whole Com-
[page 14 ]
mand on duty as pioneers that day?
Answer. No. As had been the practice the working party consisted of one company at a time, there not being sufficient tools to supply a greater number. And the remainder of the column had orders not to leave Camp until they had been preceded at least two hours by the pioneer Company. I think the hours of 6 + 8 had been named in a memorandum order the previous Evening and had been the practice since the work had become difficult.
Qu. by acused. Was not my position such under the tree, as to enable me to overlook the work upon which the whole party was engaged, and to whom did the horse standing near me belong?
Answer. The whole working party was on the side of a steep hill entirely over the brow of which Ln Wharton was sitting.
Although consisting of about Eighty men
[page 15 ]
not one of them could be observed or seen from his position.
I don't remember seeing any horse near him.
Qu. by accused. How could you judge whether or not I could distinguish the party, and did you approach the exact place where I was sitting.
Answer. I was standing at that time on the top of the hill just above the men who were working with picks and shovels. The accused was about on a level with myself on another rise, there being a depression betwen us and one or two hundred yards distant. from the nature of the ground he could not possibly have observed the working party or road before it had passed the summit of that hill. I rode on before the party had entirely completed the work on the hill, and they were all out of sight before I could have gone a dozen yards, passing near the spot where Wharton was sitting.
[page 16 ]
The Cross Examination of the witness was here closed and his testimony having been read to him he withdrew.
[testimony of Lt Chapin]
1 Ln Gender Chapin 7th Infantry, a witness for the prosecution, being duly sworn, was interrogated as follows:
Ques. by J.A. What orders did you convey to Ln Wharton from Major Whiting on the 19" Sept. '58.
Answer. On the 19" September 58, Company "K" 7" Infantry was turned out to work on the road, Ln Wharton being the 2 Ln attached to it.
Major Whiting asked me where he was.
I told him he was ahead.
He told me to go out and tell him to join his party + stay with it.
Which I did.
About two [?] hours afterwards, and probably about one hour after the troops and working party had passed, I found Ln Wharton lying near the road intoxicated.
His horse having
[page 17 ]
been caught, and tied up to a tree near by him.
Some time afterwards, Ln Wharton rode up and as he endeavoured to ride off, Major Whiting told me to go and tell him to consider himself in close arrest and for him to report the fact to Captain McLaws Commanding Battalion 7" Infantry, which I did.
This was on the march from White Clay Creek to Weber River.
Qu. by Accused. Where was I when you gave me the order to return to my party?
Ans. Just over the top of the last hill coming from White Clay Creek to Weber River lying down talking to Mainsworth [?] Sunde [?] and the Wagon master Mr Rawlings. I called him out to one side and communicated the order to him.
The Court here adjourned, at five minutes of three o'c pm to meet at ten o'c am on Monday the Eleventh instant.
[page 18 ]
Camp Floyd U.T. October 11 1858
The Court met pursuant to adjournment.
Present| 1 | Bvt Colonel | Charles F Smith | Ln Col | 10' Inf |
| 2 | Major | Isaac Lynde | 7' " | |
| 3 | Major | Seth Eastman | 5' " | |
| 4 | Captain | Henry Little | 7' " | |
| 5 | Captain | Reuben F [?] Campbell | 2d Dragoons | |
| 6 | Captain | Henry Heth [?] | 10' " | |
| 7 | 1' Lieutenant | Joseph Apdegraff [?] | 5' " | |
| 8 | 1' Lieutenant | Peter W L Plympton [?] | 7' " | |
| 9 | 1' Lieutenant | Louis H Marshall | 10' " | |
| 10 | 1' Lieutenant | John H Forney | 10' " | |
| 11 | 1' Lieutenant | Howard C Stith | 5' " | |
| 12 | 2' Lieutenant | David H Brotherton | 5' " | |
| Captain John M Jones 7" Inf Judge Advocate | ||||
| Absent. | ||||
| 1 | Captain | Lafayette McLaws | 7' Inf | |
who was excused by the court from taking his seat during the trial of
[page 19 ]
the case.
2 Ln Jesse B. Wharton 7" Inf. the accused appeared before the Court.
The proceedings of yesterday were read.
[testimony of Captain McLaws]
Captain Lafayette McLaws 7" Inf. a witness for the prosecution being duly sworn was interrogated as follows.
Qu. by J.A. What report, if any, was made to you by the accused on the 19. September 1858?
Ans. I was in Command of the Infantry Battalion which formed a part of the fifth column Utah forces, and Lieutenant Wharton rode up to where I was, and stated that he had been ordered to report himself to me under arrest.
I told him "very well"
[page 20 ]
He then asked me if I had any orders.
I told him I had none.
This was about an hour previous to our going into Camp.
Qu. by J.A: What became of the accused after he made this report?
Answer. The Column was halted at the time Lt Wharton first reported himself to me. A few moments after it was put in motion and I noticed on the march that Lieut Wharton was absent from the Column. When we arrived in Camp and the tents had been pitched, I looked for Ln Wharton and went to his tent to see if he was there and finding that he was absent and without my consent, I reported him for breach of arrest.
The direct examination of the witness was here closed.
Cross Examination
Qu. by Accused: What did I do after reporting myself in arrest?
[page 21 ]
Answer. I think he first laid down on the bank of the River under a shade. When the Column was put in motion, I went to get my horse at a distance. I met Ln Wharton on horse back. I remarked to him to be careful in riding as the ground was full of holes. I dont [sic] remember to have seen him afterwards. Whether or not he joined the Column then I dont [sic] know. I don't recollect.
Qu. by accused: Upon my riding up to you did I not after watering my horse, take off his saddle and bridle, as we always did when we came into camp.
Answer. I dont [sic] know.
The Cross Examination was here concluded. The evidence of the witness was read to him and he withdrew.
[testimony of 1st Lieutenant McKeever]
1st Lieut Chancey McKeever 3d Artillery a witness for the prosecution
[page 22 ]
being duly sworn was interrogated as follows.
Qu by J.A. Did you see the accused on the afternoon of Sept 19 58 if so at what hour and from what direction was he coming?
Answer. I saw him as near as I can recollect between 4 + 5 o'clock in the afternoon. he was riding up the Weber River in a direction from the Camp of the day before I was sitting in front of my tent and on the side of the direction from which he came. this was something like two hours after we had gone into Camp and when we halted the Infantry tents were all pitched..
The direct Examination of the witness was here concluded.
Cross Examination
Ques. by accused: How far was your
[page 23 ]
Camp from the Infantry Battalion?
Answer. From a mile to a mile and a half.
Qu. by accused. When I went through your Camp did I not decline getting off my horse saying I must hurry to our Camp?
Answer. He declined to get off. But I understood him to say he was sick and was going to his own camp on that account.
Question by accused. Suppose I had stopped on the march. Would I not have had to go through your Camp to get to ours?
Answer. The road passed right by our camp, and he would have had to take this.
The Cross Examination was here closed and his testimony having been read to him the witness withdrew.
[page 24 ]
The Judge Advocate announced the prosecution closed.
[start of defence case]
The accused stated that he felt too unwell to proceed with his defence to day and asked the Court to defer the further continuance of his trial until tomorrow morning the 12th inst [?] at 10 o'clock. His request was granted and the accused withdrew. The Court passed to the consideration of other business and adjourned at four minutes of three o'clock pm to meet at ten o'c am tomorrow the 12th inst [?].
Camp Floyd U.T. Octr 12th 1858.
The Court met pursuant to the adjournment.
present--all the members.
The Judge Advocate and the accused 2d Ln Jesse B Wharton 7" Infantry also present
The proceedings of yesterday were read
[page 25 ]
[testimony of Lt Plummer]
1st L A H Plummer 7" Infantry a witness for the defence being duly sworn was interrogated as follows.
Qu. by Accd. Please state to the Court in what capacity you were acting on the 19 of Sept last, and what was the official position between you and myself on that day, and what were the orders you received from Major Whiting
Answer. On or about the 19 Sept last I had charge of the working parties on the route from Bridger here. Lieut Wharton was 2" Ln of one of the Companies. I had charge of them. I was directed by Major Whiting to oversee the working parties that day. I don't remember the specific orders I received.
Qu. by accused. Did you not consider me under your immediate orders?
Answer. After he reported to me, I did consider that he was under my orders to a certain extent.
[page 26 ]
Qu. by accused. After we had worked through the willows and had got upon the hill side where the work consisted mostly of digging, did you not say to me "Wharton you can go on ahead and look around" and that you could see to the party for the present?
Ans: When employed on the hill side at the time referred to Ln Wharton rode up to me. I believe it was his intention to report for orders or get directions what he should do. I don't remember the words I made use of, but I implied that I did not wish his assistance and I suppose left him under the belief that I authorized him to go ahead if he chose to do so. I believe I did make use of language that would authorize Lieut Wharton to go ahead, as far as my orders went if he chose to do so.
Qu by accused. As the adjutant of the Column, do you know whether or not I ever was asked for an official explanation
[page 27 ]
as regards the breach of arrest or was I even notified that charges to that effect would be preferred against me.
Ans: I do not.
The direct examaination of the witness was here concluded.
Cross Examination
Qu by J.A. At the time you authorized Ln Wharton to go ahead, had he reported to you or were you aware that Major Whiting had given him orders in person to remain with the axe [?] party.
Answer. He did not report to me that he had received any orders from Major Whiting. Nor was I aware that he had received any. I believe he did not so report.
Qu. by accused. At the time I rode up was not the cutting nearly completed for the present, and was not the whole party then present at work with picks and spades on the hill side.
Answer. The cutting was nearly completed + the party at work with pick + spades.
[page 28 ]
The testimony of the witness being read to him he withdrew.
[testimony of William Rawlings]
Mr [?] William Rawlings a witness for the defense being duly sworn was interrogated as follows.
Qu. by accused. Do you remember on the 19. of September last when we were crossing the hill just before getting to Weber River, my being ahead with you looking for the best place to cross the hill and do you or not remember that we went up on top of the hill where the guide was sitting and sat down where we could see the whole party at work?
Answer. I don't remember the date but I went with Ln [?] Wharton up on top of the hill, towards where the road should cross the hill + sat down.
I think the guide had been there but had gone down.
This was on the last hill going to Weber River.
I saw two or three men cutting brush right at the foot of the hill but the working party I didn't see.
[page 29 ]
Qu: by accused. When Lt Chapin came up and called me aside, did I not immediately get on my horse and ride down to where the main party was at work?
Ans: He mounted his horse and went back to the working party.
The direct Examination of the witness was here closed + his testimony having been read to him he withdrew.
[testimony of Lt Chapin]
1st Lieut G Chapin 7" Inf recalled a witness for the defence was interrogated as follows.
Qu. by accused: Were you not acting as quarter master to the 5" column?
And was it not your habit to go a head every day, to look out for a camp?
And at the time you arrested me by order of Major Whiting had you been ahead, and did you not point down to where the Infantry under Captain McLaws were resting with their arms stacked and say "Wharton the Major wants you to go down to Camp and report yourself in close arrest to Capt McLaws and did I not immediately and without any hesitation obey the order
[page 30 ]
and would it not appear very natural for me to think that that was the camp and that they were waiting for the wagons?
Answer.
I was acting qr master of the 5th Column at the time referred to.
it was my habit to go ahead and designate the Camp.
but at the time Major Whiting ordered me to arrest Ln Wharton no camp had been selected.
Nor had I as yet been ordered to find one.
I did not say to Ln Wharton the Major wants you to down [sic] to Camp but I told him I was ordered by Major Whiting to tell him to consider himself under close arrest and for him to report the fact to Capt McLaws.
I may have pointed towards the Battalion at rest [illegible] his advance, but by so doing could not have suggested to any one that it was the camp for the day.
Nor do I think it rational to suppose that the Camp was in the vicinity.
He rode off in the direction of the Battalion without hesitation.
I don't know whether or not to obey the
[page 31 ]
order.
I was not close enough.
Qu by accused. Was this not on Weber River and was it not the intention of Major Whiting to encamp on Weber River that night and was it not near or about the time the advanced column usually went into camp.
Ans: It was on Weber River. It was his intention to Camp at some point on that stream, but the marches were so irregular, that whether it was or was not time for the column to go into camp it would be hard to say.
Qu. by accused. How far from this point did we actually go into camp?
Answer. I don't recollect exactly, but it was several miles farther on.
The testimony for the defence was here closed + the accused asked to be permitted to present his written defence tomorrow morning at 10 o'c. The request was granted and the accused withdrew.
[page 32 ]
The Court then passed to the consideration of other business and adjourned at fifteen minutes of three o'clock pm. to meet again at 10 o'clock A.M. tomorrow the 13" inst.
[the last day]
Jn Jones
Capt 7 Infantry
Judge Advocate
Camp Floyd U.T. Oct 13 1858
The Court met pursuant to the adjournment.
Present| 1 | Bvt Colonel | Charles F Smith | Ln Col | 10" Inf | |
| 2 | Major | Isaac Lynde | 7" " | ||
| 3 | Major | Seth Eastman | 5" " | ||
| 4 | Captain | Henry Little | 7" " | ||
| 5 | Captain | Reuben F [?] Campbell | 2d Dragoons | ||
| 6 | Captain | Henry Heth [?] | 10" " | ||
| 7 | 1" Lieutenant | Joseph Apdegraff [?] | 5" " | ||
| 8 | 1" Lieutenant | Peter W L Plympton [?] | 7" " | ||
| 9 | 1" Lieutenant | Louis H Marshall | 10" " | ||
| [page 33 ] | |||||
| 10 | 1" Lieutenant | John H Forney | 10" Inf | ||
| 11 | 1" Lieutenant | Donald C Stith | 5" Inf | ||
| 12 | 2" Lieutenant | David H Brotherton | 5" Inf | ||
| Captain John M Jones 7th Inf Judge Advocate | |||||
| Absent | |||||
| 1 | Captain Lafayette McLaws | 7th Inft | |||
| excused by the court from taking his seat during the trial of this case | |||||
2" Lieutenant Jesse B. Wharton 7th Infantry appeared before the court. The proceedings of yesterday were read. The accused stated that upon further consideration he had decided not to submit a written defence but to submit the case to the Court as it stood. He then withdrew.
The Court was then closed and after mature deliberation on the testimony find the accused as follows.
[page 34 ]
| Of the 1st Specification 1st Charge | Guilty |
| Of the 2d Specification 1st Charge | Guilty |
| Of the 1st Charge | Guilty |
| Of the Specification 2d Charge | Guilty |
| Of the 2d Charge | Guilty |
| Of the Specification 3d Charge | Guilty |
| Of the 3d Charge | Guilty |
And the Court does therefore sentence him 2d Lieutenant Jesse B. Wharton of the 7th Infantry "to be cashiered".
Jn Jones
Capt 7" Inft
Judge Advocate
C.F. Smith [??]
Lt. Col. 10th Inf
+ Bvt Col.
Presd
There being no further business before it the Court adjourned at ten minutes past Eleven o'c A.M. "sine die".
Jn Jones
Captain 7" Infantry
Judge Advocate
C. F. Smith [?]
Lt. Col. 10th Inf.
+ Bv. Col.
Presd