United States vs. John G. Cunningham, Acting 3rd Asst. Engineer, USS Yucca

This is the second of the four chances Acting 3rd Assistant Engineer John J. Cunningham was given to redeem himself.

USS Potomac
10 o'clock, 1 June 1866

The Court met pursuant to adjournment.

Present:
Lieut. Commander S. L. Breese
Lieutenant Robert B. Reill
Captain L. L. Dawson, USMC
Acting Master Oliver Coulburne
Acting Master E. B. Hussey
Acting Master W. H. Mayer
2nd Lieut. E. P. Banning, USMC
Acting Asst. Paymaster W. F. A. Tobert, Judge Advocate

The proceedings of yesterday were read over and approved.

The court was cleared.

The court re-opened and adjourned to meet tomorrow morning at 10 o'clock AM 2d June 1866.

USS Potomac
10 o'clock AM, 2d June 1866

The Court met pursuant to adjournment.

Present:
Lieut. Commander S. L. Breese
Lieutenant Robert B. Reill
Acting Master E. B. Hussey
Acting Master W. H. Mayer
Acting Asst. Paymaster W. F. A. Tobert, Judge Advocate

Absent:
Captain L. L. Dawson, USMC
2d Lieut. E. P. Banning, USMC
Acting Master O. Coburne

Detached by order of the commander in chief.

The following named members were admitted by the order of the commander in chief, to replace those detached.

Lieut. Commander W. P. McCann
Act. Vol. Lieut. D. C. Kells
Acting Vol. Lieut. W. D. Wrann

Acting 3d Assistant Engineer J. G. Cunningham the accused also present, against whom charges were submitted to the court for trial by the commander in chief.

The Judge Advocate read the order convening the court, asked the accused J. G. Cunningham, Actg 3d Asst. Engineer if he had any objection to any member named therein, to which he replied "he had not."

The accused was asked if he had been furnished with a copy of the charges preferred against him; he replied he had.

The accused requested to have Acting Passed Assistant Surgeon S. Parker admitted as his counsel, which was granted by the court.

The Judge Advocate was sworn by the Presiding Officer according to law, and the members of the court were sworn by the Judge Advocate all according to law.

The charges were read aloud by the Judge Advocate.

By the Judge Advocate: J. G. Cunningham, Acting 3rd Assistant Engineer, you have heard the charges preferred against you, how say you, guilty or not guilty?

To which the accused, J. G. Cunningham, pleaded as follows: [mute].

Acting Master H. C. Wade, a witness for the prosecution was called and sworn according to law.

By Judge Advocate: Please state to the court your name, rank and present duty or station.

Henry C. Wade, Acting Master, Commanding USS Yucca.

The Charges and Specifications were read aloud by the Judge Advocate and the witness asked to state all he knew of the same.

Answer: On or about the 23d May 1866 the USS Yucca in my command was laying near the levee at New Orleans, La., when going on shore in the morning myself, I left orders with the Executive Officer Acting Ensign Webster to have the ship under sailing orders at 4 o'clock PM of that day, and had ordered that the cornet be set at the foremast head. I then left the ship. I returned on board at 9:30 PM and was informed by the Executive Officer Mr Webster that everyone was on board excepting the accused Mr. Cunningham and three others. I did not deem it practicable to wait for them and at 10:30 PM I got underway and steamed down the river leaving these officers among whom was the accused Mr. Cunningham, who returned on board the 30 May 1866 while the Yucca was at the Navy Yard Pensacola Fla, at or about 8 o'clock AM. I placed the accused Mr. Cunningham under suspension. I reported his return to the commander in chief.

Question by the Court: Did you give the accused permission to leave the vessel?

Answer: I did not.

Question by the Court: Did you specify any time for the accused, J. G. Cunningham, to return on board?

Answer: I did not. I left that entirely with the Executive Officer. I specified the time for all officers to be on board however, 4 o'clock PM was the time specified making it a general order.

Question by the Court: Was there a gun fired when the cornet was hoisted?

Answer: There was not.

Question by the Court: For what purpose was the cornet hoisted?

Answer: I had been ordered to New Orleans to act as a convoy to the captured rebel ram Nashville on board of which were several officers belonging to this squadron who were ordered to return to this port in the Yucca, not being able to communicate with them in person the cornet was set to attract their attention and warn them the vessel would sail that day.

Question by the Court: Was there any specified time given the accused to be absent from your command by his superior officers, and if so by whom was it given.

Answer: Not to my knowledge.

Question by the Court: Did you authorize your Executive Officer to grant leave of absence to the officers of your vessel on the morning of the 23d May and if so for how long a period?

Answer: The Executive Officer of the Yucca is empowered to grant leave to all officers except the Paymaster and to him when I am not on board, they being ordered to return when he sees fit, but not to remain out of the ship without my special permission after 10 o'clock PM.

The court had no other questions.

Question by the Accused: Do you know what hour the accused left the vessel?

Answer: I do not know to my own knowledge.

The accused had no other questions.

Question by the Court: Do you know that the accused was informed that the vessel would be placed under sailing orders at 4 o'clock PM on the 23d of May 1866?

Answer: To my own knowledge I do not. I was officially informed he did.

The evidence was read over to the witness who acknowledged the same correct whereupon he withdrew.

Acting Ensign M. P. Powers a witness for the prosecution was called and sworn according to law.

By the Judge Advocate: Please state to the court your name rank and present duty or station.

Answer: M. P. Powers, Acting Ensign USS Yucca.

The Charges and Specifications were read aloud to the witness by the Judge Advocate and he was asked to state to the court all he knew of the same.

Answer: J. G. Cunningham, Acting 3d Assistant Engineer, the accused, left the ship between 12 and 1 o'clock PM on the 23d May last. I was acting executive officer. I granted him permission to go on shore at New Orleans. I informed him before he left the ship that the vessel would be under sailing orders at 4 o'clock PM and he did not return until the 30th May last the vessel being at Pensacola Bay, Fla.

Question by Judge Advocate: Did you order the accused Mr Cunningham Acting 3d Assistant Engineer to be on board at 3 o'clock PM.

Answer: No sir.

Question by Judge Advocate: Did you specify any time for him to remain absent or did you give him any orders respecting the hour he should return?

Answer: No sir. I merely informed him the ship would be under sailing orders at 4 o'clock PM.

Question by the Court: Were you authorized to grant leave of absence to the officers of the vessel on the 23d of May last and if so for how long a time?

Answer: Yes sir. I was told to inform the officers at what time the ship would be under sailing orders.

Question by the Court: At what time was the cornet hoisted?

Answer: At 9 o'clock AM.

Question by the Court: At what time on the 23d May last did the Yucca leave New Orleans for this place?

Answer: Between 10 and 11 o'clock PM

Question by the Court: Was it throughly understood by all officers on board the USS Yucca hat they were required to be on board when the ship was under sailing orders?

Answer: I don't know only as far as it referred to myself.

The Court had no further questions.

Question by the accused: With the exiting means of conveyance between New Orleans and Pensacola and the usual interval between the dates of vessels sailing between the ports, what length of time would in your opinion probably elapse before the accused could rejoin his vessel?

Answer: Three or four days.

Question by the accused: Was I ordered to be on board the vessel at 3 o'clock PM.

Answer: No sir.

The evidence was read over to the witness who acknowledged the same correct whereupon he withdrew.

Acting First Assistant Engineer E. L. Thorpe a witness for the prosecution was called and sworn according to law.

By the Judge Advocate: Please state to the court your name, rank and present duty or station.

Answer: Edwin L. Thorpe, Acting First Assistant Engineer, attached to the USS Yucca, in charge of the engineering department.

The charges and specifications were read aloud by the Judge Advocate and the witnesses asked to state all he knew of the same.

Answer: Mr. Cunningham, the accused, obtained leave from me between 12 and 10 o'clock PM to visit the shore at New Orleans on the 23d May last. I think Mr. Powers was acting Executive at the time: he also got his consent, we were together at the time in the Ward Room. I notified the Captain upon leaving the city that Mr. Cunningham the accused was not on board.

Question by the Court: Did the accused have any duty in the engine room between 4 o'clock PM of the 23d of May last and the hour the vessel left New Orleans?

Answer: No sir. His watch was from 8 to 12 o'clock of that morning, his next watch would have been from 12 to 4 o'clock the next morning.

Question by the Court: For what time did you give him the accused leave to be absent?

Answer: The understanding was for a short time, say an hour or an hour and a half - he had some private business that would not require him longer.

Question by the Court: Did you order the accused, or did you know of his having been ordered to return on board at or before 3 o'clock PM the 23d May last.

Answer: I heard the order to Mr. Diney, the senior 3rd Assistant Engineer that the vessel would be under sailing orders at 3 o'clock PM and supposed to sail at 4 o'clock PM - and it was understood that Mr. Diney would inform the other engineers to that effect, this was about 9 o'clock AM.

The Court had no other questions.

Question by the accused: Did you know that the accused was informed by Mr. Diney that the vessel was under sailing orders at 3 o'clock PM to sail probably at 4 o'clock PM.

Answer: I do not.

Question by the accused: Did or did not Mr. Diney go ashore at or about 10 o'clock AM.

Answer: He went on shore about 10 o'clock AM as near as I can recollect.

The accused had no other questions.

The evidence was read over to the witness who acknowledged the same correct whereupon he withdrew.

Mate B. M. Tucker a witness for the prosecution was called and sworn according to law.

By the Judge Advocate: Please state to the Court your name, rank and present duty or station.

Answer: Benjamin M. Tucker, Mate, USS Yucca.

The Charges and Specifications were read aloud by the Judge Advocate and the witness asked to state all he knew of the same.

Answer: I had the deck from 12 o'clock to 4 o'clock PM 23d May last off New Orleans. Mr. Cunningham the accused came to me and told me he had permission to visit the shore and requested a boat. I gave him one between the hours of 12 and 1 o'clock PM, he returned on board the vessel in Pensacola Bay 30 May 1866.

Question by the Court: Was it generally understood among the officers of the Yucca that she would be under sailing orders at 4 o'clock PM of the 23d of May last?

Answer: Yes sir.

The Court had no other questions.

Question by the Accused: Did you as officer of the deck at the time of the accused leaving the ship order or otherwise tell him to be on board at 3 o'clock PM?

Answer: No sir, I did not.

The accused had no other questions.

The evidence was read over to the witness who acknowledged the same correct whereupon he withdrew.

The court took a recess.

The court reassembled at 2 o'clock PM.

George Diney, Acting 3rd Assistant Engineer was called and sworn according to law as a witness for the prosecution.

By the Judge Advocate: Please state to the court your name rank and present duty or station.

Answer: George Diney, Acting 3rd Assistant Engineer, USS Yucca.

The charges and specifications were read aloud to the witness who was asked to state to the court all he knew of the same.

Answer: I know that Mr. Cunningham the accused was on shore in the afternoon of the 23d May last at New Orleans. We came down to to the wharf about 11:30 PM and the vessel had sailed.

Question by the Court: Did you receive an order from the Senior Engineer, Acting 1st Assistant Engineer Thorpe on the morning of the 23d of May last to inform the other engineers that the vessel would be under orders to sail at 3 o'clock PM and supposed to sail at 4 o'clock PM?

Answer: I did not.

Question by the Court: Were yourself aware that the vessel was under sailing orders for 3 o'clock PM of the 23d May last.

Answer: No sir, I was informed that the vessel would sail at 4 o'clock PM by Mr. Webster.

The Court had no other questions.

Question by the accused: Did you order or inform me that I was to be on board the vessel at 3 PM?

Answer: No sir, I did not.

The evidence was read over to the witness who acknowledged the same correct whereupon he withdrew.

The Judge Advocate here announced the case on part of the prosecution as closed.

The accused did not wish to call any witnesses for the defense.

The accused J. G. Cunningham, Acting 3rd Assistant Engineer presented and requested to have read by his counsel the written defense appended to these proceedings.

The statements of the parties being thus in possession of the court, the court was cleared for deliberation and having maturely considered the evidence adduced, find the accused J. G. Cunningham, Acting 3rd Assistant Engineer as follows:

Specification to First Charge: Proven except the words "obtain permission from his commanding officer Acting Master H. C. Wade through his executive officer Acting Ensign M. Webster to visit the shore" and the words "three o'clock PM"

Of the First Charge: Guilty except the words "obtain permission from his commanding officer Acting Master H. C. Wade through his executive officer Acting Ensign M. Webster to visit the shore" and the words "three o'clock PM"

Of the Second Charge: Guilty

And the Court do therefore sentence the said J. G. Cunningham, Acting 3rd Assistant Engineer, to be suspended from duty for three months from this date the second day of June and to loose all pay and emoluments that may become due him during that time, the pay amounting to two hundred and seventy two dollars.

Lieut. Commander S. L. Breese
Lieut. Commander W. P. McCann
Lieutenant Robert B. Reill
Act. Vol. Lieut. D. C. Kells
Acting Vol. Lieut. W. D. Wrann
Acting Master E. B. Hussey
Acting Master W. H. Mayer
Acting Asst. Paymaster W. F. A. Tobert, Judge Advocate

The court then adjourned to meet at 10 o'clock AM on Monday June 4th 1866

The proceedings and sentence of the court are approved.
John A. Winslow
Commodore
Commanding Gulf Squadron
Flag Ship Estrella
Pensacola Bay
June 5th 1866

Gulf Squadron
US Flag Ship Estrella
Pensacola Bay
May 28th 1866

Sir
By virtue of authority vested in me, a Naval General Court Martial is hereby ordered to convene on board the USS Potomac, lying in Pensacola Bay, Florida, on the twenty ninth day May 1866 or as soon thereafter as practicable for the trial of Edward Burke, Private US Marine Corps now under sentence of a Naval General Court Martial, and such other persons as may be legally brought before it.

The Court will be composed of the following named officers as members, any five of whom are empowered to act.

Lieut. Commander S. L. Breese
Lieut. Robert B. Riell
Captain L. L. Dawson, USMC
Acting Master Oliver Colburne
Acting Master E. B. Hussey
Acting Master W. H. Mayer
2nd Lieut. E. P. Banning USMC
and Acting Assistant Paymaster W. F. A. Torbert who is hereby appointed Judge Advocate.

Respectfully
J. A. Winslow
Commodore
Commanding Gulf Squadron

Charges and Specifications preferred by Commodore John A. Winslow Commanding Gulf Squadron, against J. G. Cunningham, Acting Third Assistant Engineer, serving on board the USS Yucca.

Charge First: Absence from station and duty after his leave had expired.

Specification: In this, that the said J. G. Cunningham, Acting Third Assistant Engineer, serving on board the USS Yucca then lying off the City of New Orleans, did on or about the twenty third day of May one thousand eight hundred and sixty six, obtain permission from his commanding officer Acting Master H. C. Wade, through his executive officer Acting Ensign M. Webster, to visit the shore and was ordered to be on board at three o'clock PM, four o'clock PM being the hour appointed for the vessel leaving, and although the vessel remained until between ten and eleven o'clock PM before departure, the said J. G. Cunningham did not appear on board, and the vessel sailed without him, and he (the said Cunningham) did not not rejoin his vessel until the thirtieth day of May one thousand eight hundred and sixty six, the Yucca being there in Pensacola Bay.

Charge Second: Disobedience of orders.

Witnesses:
Acting Master H. C. Wade
Acting Ensign M. P. Powers
Acting 1st Assistant Engineer E. L. Thorpe
Mate B. W. Tucker

Gentlemen of the Court

I would respectfully tender the following statement in explanation of my absence from my vessel from May 23 to May 30 1866. On May 23 1866 immediately I was aware of the departure of the USS Yucca, I endeavored to find the USS Cowslip in order to take passage for Pensacola there to join the USS Yucca. The USS Cowslip having sailed I reported on the morning of May 24 1866 to Commander James G. Williamson commanding US Naval Station New Orleans and received verbal orders from him to join my vessel as soon as possible.

After using my best endeavors I found that the first vessel to leave for Pensacola was to sail on May 27 1866 on which I took passage and immediately on my arrival at Pensacola Bay May 30 1866 I reported on board the USS Yucca to my commanding officer Acting Master H. C. Wade.

Very respectfully
John G. Cunningham
Acting 3rd Assistant Engineer
USN

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