91st PA: Jesse Wharton's court martial

Jesse Wharton's second court martial

[source: court-martial record. National Archives, Record Group 153 (Records of the Judge Advocate General (Army)), Entry 15: Court-martial case files, 1809-1894. Court-martial case file #II-92, Lieutenant Jesse B Wharton, 7th US Infantry (July 1859), Camp Floyd, UT.
[See The shooting of Jesse Wharton]
[see also the court-martial of Charles Lynde for this (and a subsequent) incident]


[manuscript page 1]

II 92

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Head Quarters Department of Utah
Camp Floyd U.T. July 21" 1859
General Orders No 16.

1. By a General Court Martial which convened at Camp Floyd U.T. on the 11" instant pursuant to Special Orders No 55, current series, and of which Lieutenant Colonel Marshall L. Howe, 2nd Dragoons, is President, was arraigned and tried.

2d Lieutenant Jesse B. Wharton 7" Infantry

Charge 1st
Conduct unbecoming an officer and a gentleman
[see article 83 of the Articles of War]
Specification. In that: he 2nd Lieut Jesse B Wharton 7" Infantry, being at the time under suspension in virtue of Gen'l Orders No 16, from the War Department, dated Decr 16", 1858, and residing in the camp of his regiment at Camp Floyd U.T. was drunk, and engaged in a disgraceful brawl with one William J. Osborne, a citizen residing in Fairfield U.T. and with 2nd Lieutenant Charles J. Lynde, 5" Infantry, striking the former with his fists and knocking him down

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and calling the latter "a son of a bitch" or words to that effect. all this between the hours of 12 and 2' o'clock, in the morning of the 4" of July 1859, in the Mormon settlement of Fairfield U.T. in the immediate vicinity of Camp Floyd U.T. and in the immediate presence and hearing of soldiers of the said camp and citizens residing in the said town of Fairfield.

Charge 2nd.
Conduct to the prejudice of good order and military discipline
[see article 99 of the Articles of War]
Specification. In that: he 2nd Lieutenant Jesse B. Wharton 7" Infantry, being at the time under suspension in virtue of Gen'l Orders No 16. from the War Department, dated Decr 16" 1858, and residing in the camp of his regiment at Camp Floyd U.T. was drunk, and engaged in a disgraceful brawl with one William J. Osborne, a citizen residing at Fairfield U.T. and with 2nd Lieutenant Charles J. Lynde 5" Infantry, striking the former with his fists and knocking him down, and calling the latter "A son of a bitch" or words to that effect. all this between the hours of 12 and 2' o'clock in the morning of the 4" of July 1859. in the mormon settlement

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of Fairfield U.T. in the immediate vicinity of Camp Floyd U.T. and in the immediate presence and hearing of soldiers of the said camp, and citizens residing in the said town of Fairfield.

To which charges and specifications the accused pleaded "Not Guilty"


Findings and sentence of the Court.

The court after mature deliberation finds the accused 2d Lieutenant Jesse B. Wharton 7" Infantry "Not Guilty" as charged and does therefore "acquit him."

II.. The proceedings in the foregoing case are approved Lieutenant Wharton is released from arrest.


By order of Bvt Brig Genl A.S. Johnston
F. J. Porter
Asst. Adjt. Genl.

Proceedings [sic]

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Case 13. Page 1

Proceedings of a General Court Martial which convened at Camp Floyd U.T. July 20th 1859. by virtue of the following orders. Viz.

Head Quarters Department of Utah
Camp Floyd U.T. July 8th 1859.

Special Orders No 55

A General Court Martial is hereby appointed to meet at Camp Floyd U.T. on the 11th day of July. 1859. at 10 o'clock, A.M, or as soon thereafter as practicable for the trial of 2nd Lieutenant Charles J. Lynde, 5th Infantry, 2nd Lieutenant Jesse B. Wharton, 7th Infantry, and such officers and enlisted men as may be brought before it.


Detail for the Court
1.Lieutenant ColonelMarshall S. Howe2nd Dragoons
2.CaptainHenry Little7th Infantry
3.CaptainCarter L. Stevenson5th Infantry
4.CaptainHenry F. ClarkeSubsistence Department
5.CaptainAlbert Tracy10th Infantry
6.1st LieutenantDelavan D. Perkins4th Artillery
7.1st LieutenantWilliam Clinton10th Infantry
8.1st LieutenantJ. H. Forney10th Infantry
9.1st LieutenantFrancis J. ShunkOrdnance Department
10.1st LieutenantStephen H. Weed4th Artillery

[manuscript page 6]
11.1st LieutenantGeorge A. Gordon2nd Dragoons
1st Lieutenant William W. Webb, 5th Infantry Judge Advocate

No other Officers than these named can be assembled without manifest injury to the service. [see article 64 of the Articles of War]
By order of
Brvt Brig Genl A. S. Johnston
(Signed) F. J. Porter
Asst Adjt Genl

10 O'Clock A.M
July 20th 1859
The Court met pursuant to the above order and adjournment. present

1.Lieutenant ColonelMarshall S. Howe2nd Dragoons
2.CaptainHenry Little7th Infantry
3.CaptainCarter L. Stevenson5th Infantry
4.CaptainHenry F. ClarkeSubsistence Department
5.CaptainAlbert Tracy10th Infantry
6.1st LieutenantDelavan D. Perkins4th Artillery
7.1st LieutenantWilliam Clinton10th Infantry
8.1st LieutenantJohn H. Forney10th Infantry
9.1st LieutenantFrancis J. ShunkOrdnance Department
10.1st LieutenantStephen H. Weed4th Artillery
11.1st LieutenantGeorge A. Gordon2nd Dragoons


[manuscript page 7]
Case 13. Page 3

1st Lieutenant William A. Webb, 5th Infantry, Judge Advocate.
2nd Lieutenant Jesse B. Wharton, 7th Infantry, the accused also present.

The Judge Advocate having read the order convening the Court, asked the accused if he objected to being tried by any members named therein; to which he replied that he had no objection to any individual, but objected to being tried at all by the Court, and presented to the Court the following written statement of the reasons for his objections.


Gentlemen of the Court

I beg leave respectfully to protest against being tried by this court, for the following reasons. viz

At the time of my arrest I was not (as it is stated in the specification a resident of Camp Floyd) [sic] but was staying in the town of Fairfield (which is not, I am informed, on the Government Reserve) and had been for some time looking out for an opportunity to leave the Territory. Such being the case, and being under suspension by order of the President, I do not consider myself under the orders of the Commanding Officer of this post, and therefore I am of the opinion that the arrest was Illegal [sic], and that I cannot be tried, unless by an order from the Authority by which I was suspended. This arrest will in all probability be the


[manuscript page 8]

cause of my loosing [sic] a Situation by which I could have left the Territory without delay.

I make this protest Gentlemen of the Court not because I fear to stand a fair and just trial, but on account of the delay it will cause to my departure from this place, which at this time is so important to me and mine.

I lay this statement before you Gentlemen of the Court, hoping you will give it your consideration.

With great respect
Your obedient Servant
(Signed) J. B. Wharton
2nd Lieut 7th Infantry


Camp Floyd U.T.
July 20th 1859

The Court was cleared for deliberation, and decided not to sustain his objection.

The court was re-opened, and the decision announced. The Court and Judge Advocate were then duly sworn in presence of the accused, and he was arraigned on the following Charges and Specifications.


Charge 1st
Conduct unbecoming an officer and a gentleman
[see article 83 of the Articles of War]
Specification. In that: he 2nd Lieut Jesse B Wharton

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Case [blank; sc. 13] Page 5

7th Infantry, being at the time under suspension in virtue of Gen'l Orders No 16, from the War Department, dated Dec 16th 1858, and residing in the Camp of his regiment at Camp Floyd U.T. was drunk, and engaged in a disgraceful brawl with One [sic] William J. Osborne, a citizen residing in Fairfield U.T. and with 2nd Lieut Charles J. Lynde, 5th Infantry, striking the former with his fists and knocking him down and calling the latter "A son of a bitch" or words to that effect. All this between the hours of 12 and 2 O'Clock, in the morning of the 4th of July 1859, in the Mormon settlement of Fairfield U.T. in the immediate vicinity of Camp Floyd U.T. and in the immediate presence and hearing of soldiers of the said camp and citizens residing in the said town of Fairfield.

Charge 2nd
Conduct to the prejudice of good order and military discipline
[see article 99 of the Articles of War]
Specification. In that: he, 2nd Lieutenant Jesse B. Wharton 7th Infantry, being at the time under suspension in virtue of Gen'l Orders No 16. from the War Department, dated Dec 16th 1858, and residing in the Camp of his regiment at Camp Floyd U.T. was drunk, and engaged in a disgraceful brawl with one William J. Osborne, a citizen residing in Fairfield U.T. and with 2nd Lieutenant Charles J. Lynde 5th Infantry, striking the former with his fists and knocking him down, and calling the

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latter "A son of a bitch" or words to that effect. All this between the hours of 12 and 2 O'clock in the morning of the 4th of July 1859. in the mormon Settlement [sic] of Fairfield U.T. in the immediate vicinity of Camp Floyd U.T. and in the immediate presence and hearing of soldiers of the said Camp, and citizens residing in the said town of Fairfield.

(Signed) W. A. Webb
1st Lieut 5th Infty
Judge Advocate

To which Charges and Specifications he pleaded as follows
To the specification of the 1st Charge.not guilty
To the 1st Charge.not guilty
To the specification of the 2nd Charge.not guilty
To the 2nd Charge.not guilty


[testimony of Henry F Allen]



Sergeant Henry F. Allen of Company A 7th Infantry a witness for the prosecution was duly sworn.

Question by Judge Advocate. Were you in the town of Fairfield on the night of the 3rd of July 1859. if so did you see the accused there, and at what time.

Answer. I was there, and saw him there between 12 and 2 o'clock on the morning of the 4th.

Question. What was his condition as regards sobriety.

Answer. He was under the influence of liquor, but I think

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Case 13 Page 7

he was able to do military duty.

Question. Could he walk without staggering.

Answer. I don't recollect seeing him stagger.

Question. What was he doing when you saw him.

Answer. He was coming up the street, when I saw him first.

Question. Was there any other person with him.

Answer. Lieut Lynde and Mr Osbourne, were about twenty paces in front of him.

Question. Did anything take place between the parties. if so state what it was.

Answer. Mr Osbourne was ahead of Lieut Lynde four or five paces, and was calling Lieut Wharton "a damn puppy", and repeated it two or three times. Lieut Wharton told him to hold on, and he said he did not speak to puppies Lieut Wharton came up then and struck Osbourne and knocked him down. Lieut Lynde then struck Lieut Wharton, and called him "A damned Son of a bitch". Lieut Wharton then called Lieut Lynde "A son of a bitch", but did not attempt to attack him

Question. Did the difficulty continue any longer at this time.

Answer. They were separated at that time by the Provost Sergeants, who told them that fighting could not be done in the streets.

Question. Who were in the immediate vicinity when this

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occurred

Answer. The only persons I saw there were Mr Osbourne some other citizens Lieut Lynde and Sergeants Boyle and Pendergast.

Cross-examined by accused. Did I make any remark to Lieut Lynde before he struck me, or did my manner indicate that I intended to attack him.

Answer. To the best of my knowledge, he made no remark, and his manner did not indicate anything of the kind.

Question. When I made use of the expression to Lieut Lynde, was it not in the heat of passion, and immediately after being struck by him.

Answer. To the best of my opinion it was.

Question. Did I repeat the expression referred to.

Answer. He did not.

Question by Court. Did Lieut Wharton in any way refuse to recognize the order or caution of the Provost Sergeants when required to cease fighting in the street.

Answer. To the best of my Knowledge he did not.

His testimony was read over to him and he withdrew.

[testimony of Sergeant Joseph Pendergast]



Sergeant Joseph Pendergast of Company "K" 7th Infantry, a witness for the prosecution, was duly sworn.

Question by Judge Advocate. Were you in the town of Fairfield on the morning of the 4th of July 1859, if so

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Case 13 Page 9

did you see the accused there.

Answer. I was there, and saw him there between the hours of 12 and 1 O'clock.

Question. What was his Condition as regards sobriety at that time.

Answer. To the best of my opinion, he was under the influence of liquor.

Question. What indications did he give of being under the influence of liquor.

Answer. I should judge from his conversation and appearance in general.

Question. Was he able to walk straight.

Answer. He appeared to walk straight. still I should judge from his walk that he had been drinking. he moved about a little from side to side so little that I could scarcely notice it.

Question. State how you came to recognize him.

Answer. Lieut Lynde and Mr Osbourne were coming up the street, and I heard him call to Mr Osbourne to hold on, and recognized his voice.

Question. Did anything take place between these parties immediately after this. if so state what it was.

Answer. Lieut Wharton called out to Mr Osbourne to hold on. and Mr. Osbourne said that he did not wait for puppies. Lieut Wharton came up and knocked him down, and Lieut Lynde strucke Lieut Wharton and

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called him "A son of a bitch," and Lieut Wharton replied by calling him "A son of a bitch."

Question. Who were in the immediate vicinity of them at the time of the disturbance.

Answer. Sergeants Allen, Boyle, and myself, and some two or three citizens.

Cross-examined by accused. When I made use of the expresion to Lieut Lynde, was it not in the excitement of the moment, and just after I had been struck by him.

Answer. I believe it was in the excitement of the moment, and it was after he had been struck.

Question. Is it not possible that you might have been mistaken in regard to my being under the influence of liquor, and might not my peculiar manner been [sic] attributed to anger and excitement more than to the effect of liquor.

Answer. It is my opinion it was the effect of liquor. Anger and excitement might have something to do with it.

The prosecution here closed, and the accused having no testimony to offer in his defence, requested until tomorrow to prepare his written defence, which was granted.

The Court adjourned at 12.30 P.M. to meet at 10 O'Clock A.M tomorrow.

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Case 13. Page 11

10 O'Clock A.M
July 21st 1859.

The Court met pursuant to adjournment. present.
1.Lieutenant ColonelMarshall S. Howe2nd Dragoons
2.CaptainHenry Little7th Infantry
3.CaptainCarter L. Stevenson5th Infantry
4.CaptainHenry F. ClarkeSubsistence Department
5.CaptainAlbert Tracy10th Infantry
6.1st LieutenantDelavan D. Perkins4th Artillery
7.1st LieutenantWilliam Clinton10th Infantry
8.1st LieutenantJohn H. Forney10th Infantry
9.1st LieutenantFrancis J. ShunkOrdnance Department
10.1st LieutenantStephen H. Weed4th Artillery
11.1st LieutenantGeorge A. Gordon2nd Dragoons
1st Lieutenant William A. Webb, 5th Infantry Judge Advocate.
2nd Lieutenant Jesse B. Wharton 7th Infantry the accused.

The proceedings of yesterday having been read over, the accused stated that he had no further defense to offer.

The Court was then closed for deliberation and after mature consideration upon the evidence adduced finds the accused as follows:


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Of the specification to the 1st Charge.not guilty
Of the 1st Charge.not guilty
Of the specification to the 2nd Charge.not guilty
Of the 2nd Charge.not guilty
And the Court does therefore "acquit him".

W. A. Webb
1 Lt 5 Infantry
Judge Advocate

M. S. Howe
Lt Col 2d Dragoons
Pres of court

There being no further business before it, the Court adjourned "sine die".

W. A. Webb
1 Lt 5 Infantry
Judge Advocate

M. S. Howe
Lt Col 2d Dragoons
Pres of court

Head Quarters Department of Utah
Camp Floyd U.T. July 17" [sic] 1859.

The proceedings in the foregoing case are approved.

A. S. Johnston
Colonel 2d Cavalry + Bvt. Brig. Genl. U.S.A Commdg.

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G.C.M. No 147 1859

Proceedings of Genl Court Martial
Convened at Camp Floyd U.T.
July 11th 1859. by virtue of
Special Dept Order No 55. July 8 /59

I.I. 92.

Lieut Col Marshall S. Howe 2nd Drag
President

Lieut W A Webb 5th Infty
Judge Advocate

Case tried
13. 2nd Lieut Jesse B. Wharton
7th Infantry

Head Quarters Dept of Utah
Camp Floyd U.T. July 23" 1859
Respectfully forwarded to the
Head Quarters of the Army
A. S. Johnston
Colonel 2d Cavalry + Bvt Brig Genl Commdg

Recd (Hd. Qrs.) August [illegible] 1859
Recd (Department of Utah) July 21 1859

HeadQuarters of the Army
New York Octbr 6. 1859.
Respectfully forwarded to the Adjutant General.
H. L. Scott.
Lt Col. + A.D.C.

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revised 4 Mar 13
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