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

The fourth trial Cunningham faced: allegedly swiping the USS Yucca's dinghy and going on a drunken joy rowing expedition around what is now the Mustin Beach area with two of his snipes. He was granted yet again the chance to reform his drinking habit. However he blew it yet again by violating standing orders of CAPT John De Camp, commanding officer of the USS Potomac, and was finally dismissed from the Navy effective 30 April 1867.

US Ship Potomac
10 o'clock AM March 5th 1867

The Court met pursuant to adjournment

Present:
Captain John DeCamp
Fleet Surgeon J. Winthrop Taylor
Commander A. W. Weaver
Commander W. E. Fitzhugh
Fleet Paymaster J. A. Smith
First Assistant Engineer David Smith
Second Assistant Engineer W. S. Neal
Paymaster George Lyon, Judge Advocate

The Court, then in virtue of the Precept attached to the case of Acting Third Assistant Engineer John W. Priggs, proceeded to the consideration of the case of John G. Cunningham, Acting 3rd Assistant Engineer.

Passed Assistant Paymaster Frank Clarke, in obedience to orders, reported for duty as Counsel for the accused.

The Judge Advocate having read the order convening the Court, asked the accused, John G. Cunningham, Acting 3rd Assistant Engineer, if he had any objection to any member named therein, to which he replied that he objected to Commander A. W. Weaver sitting as a member of this court, on the ground that he was a member of a previous court, by which the accused had been tried on the same charges, and therefore had prejudged the case. To this, the Judge Advocate replied that the Navy Department had decided that the previous Court was not properly constituted and had quashed the proceedings thereof on that ground, and therefore technically, the challenged member had not sat on any former court.

The Court was then cleared for deliberation (the challenged member also withdrawing) having fully considered the case, decided that the objection was valid. The Court was then reopened and its decision announced. Commander A. W. Weaver therefore withdrew from the Court.

The accused also objected to Commander W. E. Fitzhugh sitting as a member on the same grounds as those made against Commander Weaver.

The court was again closed for deliberation (the challenged member withdrawing) and having fully considered the case, decided that the objection was valid. The Court was then reopened and its decision announced, Commander W. E. Fitzhugh therefore withdrew from the Court.

The accused informed the Court that he had no further objection to make to any of the members.

The Court was then sworn according to law by the Judge Advocate and the Judge Advocate by the Presiding Officer of the Court, in presence of the accused.

The Charges were read aloud by the Judge Advocate, who then addressed the accused Acting Third Assistant Engineer John G. Cunningham as follows - You have heard the charges preferred against you, how say you, guilty or not guilty? to which the accused pleaded not guilty.

The accused stated that he had received a copy of the charges preferred against him.

Acting Master H. C. Wade, a witness on the part of the prosecution, was duly sworn.

Question by Judge Advocate: I wish you would state if you were Commanding Officer of the USS Yucca on the first of January last, and if the accused at that time obtained permission from you to remain out of the ship all night, and also whether you had issued a General Order prohibiting officers of your vessel from doing so, without your special permission.

Answer: I was commanding officer of the Yucca at that time. The accused did not obtain permission from me to remain out of the ship all night. I have issued a general order to that effect which was in force at that time. I do not know at what time the accused returned to the ship.

Question by Accused: Did you refuse to give the accused permission to remain out of the vessel?

Answer: I did not, as he did not apply to me for permission.

The testimony was read aloud to the witness who pronounced it correct.

Acting Ensign M. P. Powers, a witness on the part of the prosecution was duly sworn.

Question by Judge Advocate: Are you the Executive Officer of the Yucca?

Answer: I am now Executive Officer of the Yucca and was so on the 1st of January last.

The Judge Advocate then read the specifications aloud to the witness, and asked him to state to the Court what he knew concerning them.

Answer: On the afternoon of the 1st of January last, Mr. Cunningham asked my permission to leave the ship, to go on shore, which I granted. I was not aware that he had taken two of the firemen, and did not know that he had taken the dinghy until Acting Ensign Bunting told me so. The dinghy was in the slip at the Navy Yard at the time. When I learned that the dinghy had not returned, but had gone outside the Navy Yard with the accused and two men, I sent the cutter with an officer after the dinghy, and the officer reported to me that the boat could not be found anywhere about the vicinity of the Navy Yard. The dinghy did not return until the following day. The accused did not return in the dinghy, but returned on board ship, on the afternoon of 2d January. I went on shore to Warrington, in the ten o'clock boat to look for the dinghy and saw the accused with those two firemen; and Mr. Tennant and the Surgeon took the dinghy off from Woolsey's wharf. When I saw the accused in Warrington, I supposed him to be intoxicated, but did not speak to him. I passed within twenty feet of him, I judged from his general appearance. I did not give permission to accused to remain out of the ship overnight. The accused did not report his return to me on the next day. At the time I sent the cutter after the dinghy at six o'clock in the afternoon of the 1st, the weather was not so rough but that the dinghy could have pulled off to the ship in safety, unless some accident had happened to her, neither of the firemen taken by the accused returned to the ship until the next day.

Cross Examined by Accused: Did not the accused ask for the dingy to go outside the yard and you tell him you had no crew to man it and when the accused said he would man it with a couple "of our boys" you say "go ahead."

Answer: I refused to grant permission to any man to leave the vessel - a general order had been issued by Captain Wade, on the Sunday previous, in the presence of all the officers, at General Muster, forbidding any of the men leaving the ship.

Question by Accused: Did you not tell Mr. Thorpe, on the morning of January 2d, that you did not give Mr. Cunningham permission to ashore personally?

Answer: No sir.

Question by Accused: Were you alone when you met the accused in Warrington, on the morning of January 2d?

Answer: Mr. Thorpe and Mr. Bunting were present.

The testimony was read aloud to the witness who pronounced it correct.

Acting Ensign J. Cook, Jr., a witness on the part of the prosecution was duly sworn.

Question by Judge Advocate: Please state your name, rank and present station.

Answer: Joshua Cook, Jr., Acting Ensign now on duty in the USS Yucca.

The Judge Advocate then read the specification of the first charge aloud to the witness and asked him to state to the COurt what he knew concerning it.

Answer: On the first day of January last, I had the afternoon watch; when the three o'clock boat was going on shore, the accused reported to me, that he had permission to take two of the firemen on shore with him, and would return in the dinghy, which was then in the Navy Yard slip. Up to four o'clock when I was relieved, he had not returned. The next day the 2nd of January, I had the forenoon watch, the dinghy was brought off to the ship by the water boat and one of the firemen returned in her.

Question by Accused: Did a boat from Fort Pickens come for two oars that were borrowed by the accused?

Answer: On the afternoon of January 2nd, a boat came along side with some soldiers in it, who said they had loaned Mr. Cunningham a couple of oars, and as there were two oars in the boat that did not belong to the ship, I gave them to them.

The testimony was read aloud to the witness who pronounced it correct.

Acting Ensign J. H. Bunting, a witness on the part of the prosecution was duly sworn.

Question by Judge Advocate: Please state if you were an officer of the USS Yucca on the first of January last, if you saw the accused putting in the dinghy on that day and when and if you saw the accused the next day and if so where and his condition at that time.

Answer: I was an officer of the USS Yucca at that time, I saw the accused in the dinghy of the Yucca coming out of the basin in the Navy Yard on the afternoon of the first of January and he hauled down towards Warrington. He hailed me, and said he would be off to the ship in a little while. I saw the accused the next day between 10 o'clock AM and One PM, in Warrington. The accused looked as though he had been drinking, but I would not like to swear he was intoxicated. I think the accused was somewhat under the influence of liquor at the time. I passed the accused twice and spoke to him once. The accused began to tell me the reason he did not get off the night before and I then told him he had better go on board as soon as he could, because I thought he had stepped over the time he was to be gone from the ship.

Cross-Examined by Accused: Who was with our, when you saw the accused?

Answer: The Executive Officer Mr. Powers and Mr. Thorpe.

Question by the Court: At the time you saw the accused, when you thought he had been drinking, but would not like to swear that he was drunk. Was he in condition to run with safety the engine of the ship?

Answer: I think he was in condition to run with safety.

The testimony was read over to the witness who pronounced it correct.

The evidence on the part of the prosecution was here closed.

Acting 1st Assistant Engineer E. L. Thorpe, a witness on the part of the defense was duly sworn.

Question by Accused: Did Mr. Powers tell you on the morning of the 2nd of January that he did not give accused permission to go ashore?

Answer: He did say so.

Question by Accused: Were you with Mr. Powers when he met the accused in Warrington, on the morning of January 2nd, and in what condition was the accused? Was he capable of standing a watch in the Engine Room?

Answer: I was with Mr. Powers at that time. I considered the accused capable of standing a watch in the Engine Room. He appeared as though he had been up all night, but did not appear to me to be intoxicated.

Question by Accused: Was the two firemen with the accused when you saw him.

Answer: Yes sir, when I first saw him.

Question by the Accused: In your opinion, is Mr. Powers apt to be forgetful to whom he gives permission to leave the vessel?

Answer: I think he is at times, he is apt to be a little absent minded.

Question by Accused: What is your impression, as to Mr. Powers giving the accused permission to take the two firemen out of the vessel. Were you present at the time?

Answer: I was present at the time, but not very close to them. It is my opinion that he did give permission to do so.

Question by the Court: At the time you state that the accused was capable of standing a watch in the engine room, do you mean to say that on that occasion, you would have confided the engine to the accused, had the vessel been under steam?

Answer: I would.

The testimony was read aloud to the witness who pronounced it correct.

Acting 3rd Assistant Engineer Thomas TEnnant, a witness on the part of the defense was duly sworn.

Question by Accused: At what time did you see the accused on the morning of the 2nd January. Was Mr. Powers with you? was Mr. Thorpe and Mr. Bunting with you? Do you think the accused was at that time able to perform his duties as an engineer?

Answer: I saw the accused between 10 and 11 o'clock on that morning in Warrington. Mr. Powers was with me at the time, but Mr. Thorpe and Mr. Bunting were not. I think the accused was able to perform his duties as an engineer at that time.

Question by Accused: Do you think that Mr. Powers at the time you and he met the accused in Warrington, was capable of forming an opinion as to any persons being intoxicated or not?

Answer: I do not, for the reason that he had been drinking himself, and he merely glanced at the accused, when he passed him.

Cross Examined by Judge Advocate: At the time you met the accused when, as you state, you thought him able to perform his official duties, was he drink or sober?

Answer: He was sober.

The testimony was read aloud to the witness who pronounced it correct.

Acting Passed Assistant Surgeon Scollay Parker, a witness on the part of the defense, was duly sworn.

Question by Accused: At what time did you see the accused on January 2nd, and what was his condition?

Answer: I saw him about five o'clock PM and when I saw him he was perfectly sober.

Question by Accused: From what you saw of Mr. Powers on the afternoon of January 1st, do you think he was in a condition to remember whether he gave the accused or anyone else, permission to go ashore, or to take the dinghy?

Answer: I do not think he would remember exactly because he was evidently somewhat affected by the use of alcoholic stimulant.

Question by Accused: When under the influence of liquor, is Mr. Powers forgetful of what he grants or orders?

Answer: Yes, he is remarkably forgetful, more so that usual - he is naturally forgetful.

Question by Court: Have you had frequent opportunities to judge of the capacity of Mr. Powers while under the influence of intoxicating liquor or was the one alluded to in Mr Cunningham's case, an isolated one?

Answer: I have been with Mr. Powers a year, and have frequent opportunities of judging in this respect. I did not consider this an isolated case by any means, from my previous knowledge of his being under the influence of liquor and of his peculiar characteristic of forgetfulness.

The testimony was read aloud to the witness who pronounced it correct.

Dennis Haley, 1st Class Fireman, USS Yucca a witness on the part of the defense was duly sworn.

Question by Accused: State to the Court what you know of Mr. Cunningham's bring out of the vessel all night on the first January, and what efforts he made to get back to the vessel?

Answer: I was in the Engine Room on that day, when the accused came in there, he told me and another man named Buckley, to get out coats, that he wanted us to go on shore with him - we got our coats and got as far as the gangway; the accused had some talk with the officer of the deck, I don't know what it was about. Mr. Cook the officer of the deck, told us to get into the cutter, which was laying alongside. We got in and the cutter's crew pulled us into the basin at the Navy Yard. When we got over there we got into the dinghy, which was laying there and pulled outside the Navy Yard, to Warrington. When we got there, the accused got out of the boat, and told us to wait there until he got back. When he got back it was just getting dark. We got into the boat and pulled towards the ship. The wind blew pretty hard, the tide was against us and the oar I was pulling broke. Then we had but one oar and pulled quite a while with one oar, taking turns, trying to make the ship. The accused pulled some too. We couldn't make the ship, the accused hailed the ship two or three times, and we heard no answer at all. And then we tried to make the Navy Yard, and found we could not get there, so we got down to Fort Pickens. When we got there, the accused went up to the Fort and we waited by the boat until he came back. When he came back there were three or four soldiers with him. The accused wanted the Sergeant to man his boat and pull him off to his ship. The Sergeant wouldn't risk it, he said the night was too bad, and his boat was not in very good order. The Sergeant advised him to stay there all night. So we went up and stayed in their quarters. Next morning the accused borrowed two oars of the Sergeant and we pulled over to Warrington again. We went ashore there a little while. I met Mr. Powers and Mr. Thorpe, and they told me they had took the dinghy and to go into the yard and go aboard in the water boat. We reached Warrington the next morning between 9 and 10 o'clock. I went aboard the ship and that is all I know about it.

Question by Accused: Was it possible to get back to the vessel from Fort Pickens, even if you could have got any oars that night?

Answer: It was not possible in the boat we had, we could not make the ship I think, it blew so hard.

Cross-Examined by Judge Advocate: Why didn't you pull direct to the ship the next morning instead of to the Warrington wharf?

Answer: I don't know the reason.

Question: Where did you go with the accused when you went on shore the next morning?

Answer: I did not go with the accused any place, I went up on the landing on the wharf.

Question by the Court: Was the accused drunk or sober during the time you was with him.

Answer: He acted to me to be sober, while I was with him.

The testimony was read aloud to the witness who pronounced it correct.

The evidence on the part of the defense was here closed.

The accused requested time to enable him to prepare his written defense, and the Court adjourned to meet again at 10 o'clock AM, March 6, 1867.

US Ship Potomac
10 o'clock AM, March 6, 1867

The Court met pursuant to adjournment

Present:
Captain John DeCamp
Fleet Surgeon J. Winthrop Taylor
Fleet Paymaster J. A. Smith
First Assistant Engineer David Smith
Second Assistant Engineer W. S. Neal
Paymaster George Lyon, Judge Advocate

The proceedings of yesterday were read over when the accused, Acting 3rd Assistant Engineer John G. Cunningham, presented and read the written defense marked B appended to these proceedings.

The statements by 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, Acting 3rd Assistant Engineer John G. Cunningham as follows:

The Specification of the First Charge: Not Proven
Of the 1st Charge: Not Guilty

The Specification of the Second Charge: Proven
Of the 2nd Charge: Not Guilty

The proceedings of the Court in the Case of John G. Cunningham, Acting 3rd Assistant Engineer, having been signed by the members, and transmitted to the Commander-in-Chief, were returned for revision, as will be seen by his letter hereto annexed marked D.

The Court then proceeded to reconsider their findings in reference to the point referred to in the letter of the commander in chief, and, after mature deliberation, decided that their verdict should remain unchanged.

Captain John DeCamp
Fleet Surgeon J. Winthrop Taylor
Fleet Paymaster J. A. Smith
First Assistant Engineer David Smith
Second Assistant Engineer W. S. Neal
Paymaster George Lyon, Judge Advocate

US Flag Ship Estrella
Pensacola Bay
March 6, 1867

The findings of the Court in the case of Acting Third Assistant Engineer John G. Cunningham are disproved of.

The specification of the second charge alleges that the accused remained out of his vessel on the night of the first of January 1867, without permission from his Commanding Officer, in direct violation of the General Order of his Commanding Officer, and Paragraph No. 143 US Navy Regulations.

The Court find the specification proven in whole, and not in part, and yet the charge of disobedience of orders, not proven.

It is incomprehensible to the Commander in Chief, how such a verdict could have been reached.

The proceedings are returned for correction, that the Court may re-examine Paragraph No. 143 of the Naval Regulations which they have found the accused to have violated, and also Paragraph No 1229 of the same, which is recommended in connection, before reconsidering their vote.

Very Respectfully
John A. Winslow
Commodore
Commanding Gulf Squadron

Charges and Specifications of Charges preferred by Commodore John A. Winslow commanding Gulf Squadron against John G. Cunningham, Acting Third Assistant Engineer in the Navy of the United States, serving on board the USS Yucca.

Charge First: Conduct unbecoming an Officer

Specification: In this, that the said John G. Cunningham, John G. Cunningham, Acting Third Assistant Engineer serving on board the USS Yucca, did on or about the first day of January one thousand eight hundred and sixty seven, leave his vessel, taking with him two men belonging to the Engineers department and proceeded to the Navy Yard Pensacola, from where he took the dingy belonging to the USS Yucca, without leave, and with the two men aforesaid, rowed outside the Navy Yard wall and there became intoxicated and kept both the men and the boat away from the ship until the second day of January one thousand eight hundred and sixty seven.

Charge Second: Disobedience of Orders

Specification: In this, that the said John G. Cunningham, John G. Cunningham, Acting Third Assistant Engineer serving on board the USS Yucca did on or about the first day of January one thousand eight hundred and sixty seven, remain out of his vessel during the night without permission from his Commanding Officer, in direct violation of the General Order of his Commanding Officer and of Paragraph No. 143 United States Navy Regulations.

Witnesses
Acting Ensign M. P. Powers
Acting Ensign J. Cook, Jr.
Acting Ensign J. H. Burting

USS Potomac
Pensacola Bay
March 5th, 1867

I most respectfully submit to the Honorable members of the General Naval Court Martial, the following defense: viz:

In answer to Charge First and Specification, I would state that when I took the dingy and two firemen it was with the consent of the Senior Engineer and by permission of the Executive Officer it being distinctly understood by all the parties, that I was to land outside of the Navy Yard in Warrington. Mr. Penn denial that I had the above permission is accounted for by his usual forgetfulness of occasion which take place, while he is under the influence of intoxicating liquor. As appear by the testimony of two witnesses, A. 1st Engineer Thorpe and P. A. Surgeon S. Parker.

The part of the Specification which implies that in consequences of being intoxicated, I kept the men and the boat from returning to the vessel, I deny and ask the attention of the Court to the fact there was no evidence on the part of the prosecution to substantiate it.

In answer to Charge Second, and Specification, I would state that I do not deny my absence from the vessel, on the night of January 1st, but ask your consideration of facts stated by Dennis Haly 1st Class Fireman.

I left the shore at dusk to return to the vessel against a very heavy head wind and tide, and when about midway, one of my two oars broke, thus disabling the boat and placing it in a perilous situation. After great exertion with a single oar, I was enabled to reach Fort Pickens, two miles to the leeward, where I made liberal offers of money to the soldiers to take myself and men up to the ship, in their boat, which was refused, they thinking it too dangerous to attempt it. I was therefore compelled to remain there all night.

I would also call your attention to the evidence of one of the witnesses, on the part of the prosecution, who testified that, on the night in question, it was too rough for the dingy to come off to the vessel, if she would meet with any accident.

In conclusion, I would earnestly solicit the attention of the Court and the Revising Power to the statement of witnesses in regard to my appearance, on the morning of January 2d. I had been exposed during nearly the whole of a stormy night, in a open boat, and had made unusual mental and physical exertions and had neither time or opportunity to make a change of toilet or refresh myself.

Trusting the above may meet with the favorable consideration of the Court and Revising Power.

I remain, Very Respectfully
Your Obedient Servant
John G. Cunningham
Acting 3rd Assistant Engineer
USN

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