23rd Georgia Infantry

Col. Emory F. Best's Court Martial

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colemoryfbest.jpg
Later in life picture of Col. E. F. Best after the war

...Court Martial of
Colonel Emory F. Best
......Transcripts

This Court Martial was tried in Charleston, South Carolina the last week of November and the 1st week of December 1863

Witnesses who testified in order
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Capt. J.P. Patton Co. I, 23rd Ga. Inf. Prosecution
Capt. J.J.A. Sharp Co. G, 23rd Ga. Inf. Prosecution
Lieut A. Worley Co. E, 23rd Ga. Inf. Prosecution
Capt. R.N. Grove Co. B, 23rd Ga. Inf. Prosecution
Lieut L.R. Pritchett Co. I, 23rd Ga. Inf. Prosecution
Lieut. B.B. Moore Co. K, 23rd Ga. Inf. Prosecution
Pvt. W.M. Bishop Co. G, 23rd Ga. Inf. Prosecution
Lieut L.A. Smith Co. I, 23rd Ga. Inf. Prosecution
Capt. W.J. Boston Co. A, 23rd Ga. Inf. Prosecution
Maj. M.R. Ballenger , 23rd Ga. Inf. Prosecution
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Capt. John Hambrick Co. E, 23rd Ga. Inf. Defense
Sgt. J.H. Taylor Co. E, 23rd Ga. Inf. Defense
Lieut. M.A. Collins Co. E, 23rd Ga. Inf. Defense
Pvt. Drury M. Sosabee Co. E, 23rd Ga. Inf. Defense
Pvt. Russell Bryant Co. E, 23rd Ga. Inf. Defence
Capt. W.H. Renfro Co. E, 27th Ga Inf. Defence
Sgt. D.C. Roberts Co. I, 23rd Ga. Inf. Defense
Pvt. W.H.T. Lerner Co. D, 23rd Ga. Inf. Defense
Sgt. Maj. J.E. Covington, 23rd Ga. Inf. Defence
Capt. W.G.L. Butt Co. K, 23rd Ga. Inf. Defense
Lieut W.J. Keown Co. H, 23rd Ga. Inf. Defense
Lieut W.A. Smith Co. I, 23rd Ga. Inf. Defense
Pvt. James W. Justice Co. K, 23rd Ga. Inf. Defense
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Lieut T.B. Davis Co. A, 23rd Ga. Inf. Prosecution
Lieut T.T. Moss Co. G, 23rd Ga. Inf. Prosecution
Lieut S.J. Burdett Co. A, 23rd Ga. Inf. Prosecution
Lieut J.T. Harris Co. F, 23rd Ga. Inf. Prosecution

List of Charges Preferred against Col Best
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Case 125
....... Tuesday 10 o’ clock AM
The Military Court met pursuant to adjournment
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Present
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1. Col. D.F. Jamison, Presiding Judge
2. Col. L.M. Lamar, member
..... Capt. William H Talley, Judge Advocate
..... C.B. Glenn, Clerk
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The proceedings of Saturday last was read by the clerk
Capt. John O’ Ferrell Provost Marshall appearing in attendance the Court proceeded to the trial of Colonel Emory F. Best 23rd Georgia Regiment, P.A.C.S; who was called into court, and duly arraigned on the following
Charges and Specifications;
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Cowardice and Disgrace before the Enemy
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Specification 1st In this that the said Col E.F. Best 23rd Georgia Regiment P.A.C.S. at the time the Colonel of said Regiment during an engagement with the enemy at South Mountain near Boonsboro Maryland on or about the 14th day of September 1862 act in a very cowardly and disgraceful manner hiding himself behind Rocks while under fire of the Enemy; and thereby considering himself useless as an officer and setting a bad example to the men.
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Specification 2nd In this that said Col E.F. Best at that time the Colonel of said Regiment hid while his said Regiment was advancing in line of battle, and actually engaged with the Enemy at Sharpsburg, in as said, on or about the 17th day of September 1862 __________ himself and did hide himself behind a pile of rocks and __________ behind his Regiment until he was ordered up by a superior officer.
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Specification 3rd In this that the said Col. E.F. Best hid while his Regiment was detached from the Brigade (Colquitt’s) by order of Lt. Genl Jackson for the protection of the wagon train of the 2nd Army Corps A.N.V. and to that purpose as engaging the enemy near Chancellorsville Spotsylvania, County Va. on or about May 2nd, 1863 absent himself from his command without authority and could not be found with the Regiment he had fallen back two or three hundred yards from the scenes of action and started joining his regiment that he was going to the rear and that by the shortest route possible
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Specification 4th In this that the said Col. E.F. Best did while his regiment was detached from the Brigade (Colquitt’s) by order of Lt. Genl Jackson for the protection of the train of the 2nd Army corps A.N.V. Chancellorsville, Spotsylvania County Va. on or about May 2nd, 1863, After having placed his Regiment in position in a Rail Road Cut, shamefully hid away and shameful abandonment ______ his Regiment upon the _______________ enemy?
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Charge Second
Disobedience of Orders
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Specification 1st In this that said Col. E.F. Best at that time the Colonel of said Regiment in command of a detachment of his Regiment in support of a battery during the engagement at South Mountain, near Boonsboro, Maryland on or about the 14th day of September 1862 did when ordered by Maj. Genl Longstreet through his Assistant Adjutant General to move with his command _____ _____ _____ _____ to do so
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....... Before pleading the accused submitted on motives to strike out the second charge and the specification there of, on the ground that if Maj. Genl Longstreet’s Assistant Adjutant General gave the order us alone could know whether such order had been obeyed or not as I that he was the proper person to proper the charge of our __________
..The Judge Advocate said that the objection was to the proof The evidence was that the proof had not been overlooked
..As to the remainder of the objection, it was sufficient to say that any officer might ______ the charge, the Court overruled that motion of the prosecution to the charges and specifications the accused then pleaded Not Guilty
.. All interviews in this case were directed to with draw and to wait until called for.
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Capt. J.P. Patton, Co. I 23rd Georgia Regt. P.A.C.S.
..... On the first of the prosecution, was duly sworn
Examined by the Judge Advocate, deposes as follows:
.....I with my Regiment (23rd Georgia) at South Mountain near Boonsboro, Maryland on the 14th of September 1862, Col. Barclay was in command on that occasion.
The accused was then Lieut. Colonel and was with the Regiment, I do not know much concerning the cases that evening, there was a detachment of the Companies of my regiment under command of the accused. My Company was one of the companies of that detachment, the detachment went up the mountain to support a battery about the time in (that is the detachment) got up on the mountain where the battery was, the bullets of the enemy “were coming pretty thick” We were then scattered about a good deal. It was a very warm place, and the men broke ranks, but did not go off very far, but sheltered themselves, I inquired for the accused.
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Question by the Judge Advocate:
Were your inquiries successful or others were eliciting information in regard to the accused?
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The accused objects to the question, on the ground that it would be as proper to ask for the conversation itself.
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The Judge Advocate said that the distinction was clear between proving the fact that inquiries were made and that the inquiries resulted in the witness obtaining information concerning the accused (In that stating what that information was): and the detailing of the conversation – The first was admissible the latter was not
The Court overruled the objection
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Answer:
At that time I got no information about the accused in answer to my inquire
When in first went up the mountain to the battery I seen the accused within about twenty yards of it. The enemy was firing pretty terribly upon the battery at that time. Perhaps fifteen minutes afterwards, I again seen the accused he was then near me. This was after the ranks was broken. As soon as we got on the ground in range of the Yankee Sharp Shooters, our men became scattered.
The accused came up to where several of us men were standing and lying down, scattering our men behind rocks etc. This was right at the battery about fifteen yards right behind it. The accused then ordered us back, and we started back to the Regiment. We got back about half way (We had been about a mile from the Regiment) when we met. Genl Longstreet and our Adjutant General. The accused was present with us. The accused was ordered by that officer to take his detachment back on the ____ of the Mountain “where we had first left” The officer told the accused that it was by order of Genl Longstreet for him to go back to the place I have spoken of. At that time our detachment was a little to one side of the road having given way for a Brigade which was passing.
The road was full of troops. I was with the detachment. Long afterwards either the same or another officer came up and said something to the accused to which the accused replied that he was ordered to report to his Regiment. This was to the best of my recollection, but a very few minutes after the first appearance of the staff – officers as mentioned.
On the Mountain, I saw no courier or staff officers having any orders to the accused nor did I have any during the march back towards the Regiment except as I have stated. The detachment then went back to the Regiment.
I saw Colonel Barclay and the accused together some fifteen minutes after the return of the detachment to the Regiment, but I heard no conversation between them.
The battery on the Mountain fell back before our detachment. When we fell back, the detachment was not in very good order, but we were in ranks. The accused was there assisting forming the detachment.
..... I was in the Battle of Chancellorsville on the 2nd of May 1862. The accused was the colonel of my Regiment. We were in line of battle in the woods I went to the center of the Regiment from near the left, to see the accused, and I found him soon afterwards, the Yankees advanced on us and I went to my Company. I saw nothing afterwards of the accused until the Regiment had fallen back a half or three quarters of a mile, to the Furnace. There were no other troops with our Regiment. We had him detached to take charge of the wagon train.
The fire of the enemy before we fell back was pretty tolerably heavy, I suppose about one hundred and fifty yards from us. Our Regiment fell back just about the time the Skirmishers on our left got back.
There was no orders to the Regiment to fire, but it had before that been ordered to fire, if the enemy advanced on us. A few men did fire, before we commenced the retreat. We had none killed or wounded. Afterwards at the Furnace where we established another line we had one killed and two wounded. At the Furnace we had a pretty brisk skirmish. We fought there “a right smart while”. It was I suppose the same force of the enemy, that had advanced on us at first. I saw the accused just before we got to the furnace before the enemy, that had advanced on us at first. I saw the accused just before we got to the Furnace before the enemy had opened fire on us again; but I did not see him afterwards during the skirmish at the Furnace. From that place we fell back about a half a mile, to a Rail Road Cut. I know of no order for the movement. On this account I saw the accused about seventy five or eighty yards from the Furnace. He was standing in the road. This was about seventy five or eighty yards from our last line. The enemy followed us to the rail Road Cut.
Just before the enemy opened on us, I saw the accused in the cut with us. After the enemy had commenced firing again, and about fifteen minutes after I had seen him there, I missed the accused, and saw no more of him for some twenty days. I with all the others who were in the cut were captured.
We kept up our fire about a half hour after I missed the accused from the cut. The accused was not captured. Portions of nine Companies were of the regiment were Captured. The remaining company “C” was detached as skirmishers and was not with the Regiment and hence was not captured. The Lieut. Colonel (Huggins) had been with the Regiment that day.
The Major (Ballenger) had been captured at the Furnace. Capt. Sharp was the senior Captain of the Regiment. He was at the Rail Road Cut when I saw the accused at the Furnace just before the firing there commenced, he seemed to be trying to keep his men together. When I saw the accused after the retreat commenced from the furnace, he was standing in the road by a caisson with several men. I don’t know what he was doing. When the accused left us in the Rail Road Cut, I got no orders nor notice from him. I was at that time about one hundred yards from him. Both at South Mountain and at Chancellorsville, I thought the accused did about as well as could be done, as far as I noticed him, though I did not notice him particularly as I had about as much as I could do to attend to my own business.
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Cross Examined by the Accused
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..... I do not know what battery the accused as ordered to support at South Mountain, that is I don’t know the name of it. I don’t remember that the accused gave orders to the detachment when we came to it, while supporting the battery at South Mountain. I think the entire command was sheltered while near that battery. The Commanding Officers of the battery and his detachment were right in front of us. I think some of them were sheltered. The men of our detachment were more scattered then usual in action; but I don’t suppose they were so much as not be under control of the accused or their immoderate commanders. Company E was more scattered then any of the rest. I can not say whether the officer who presumably commanded that company during the Maryland campaign was efficient or inefficient. I do not know who commanded it at South Mountain. I did not see Genl D.H. Hill while the detachment was at the battery.
The accused had the ______ control of the detachment at the time it halted by the side of the road as stated. There was no part of the detachment deployed as skirmishers.
On our retreat over the mountain, as far as I know I remember that he gave a call in of the battery as had been supporting, _______ and that some of the detachment were away in turning it to fight at the place where I have stated our detachment halted by the road side in answer to the question whether I observed any mis conduct on the party accused, while on the mountain, I reply that “I can’t say that I noticed any thing particular about him”, I did not notice the accused sheltered behind the rock. I think the enemy was concealed. I could not see them.
When I found the accused near the center of the Regiment just before the enemies first advance on us at Chancellorsville, he was sitting down right of the regiment.
The men were lying down, having orders to do so. I don’t know what orders the accused received in taking that portion in the woods. We was ordered there by Genl Stuart. Before that I had seen Genl Rhodes talking to the accused.
On the first advance of the enemy, our skirmishers engaged them but very little time, they fell back pretty quick of the regiment then were either four hundred and eighteen or four hundred and eighty captured. And the Company not captured had about forty men present. When the enemy first advanced, I think there were two of the nine Companies deployed as skirmishers.
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The Court then adjourned until Tuesday November 24th 1863 10 o’clock A.M.
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Present
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1. Col. D.F. Jamison, Presiding Judge Charleston, S.C. November 24th 1863
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Tuesday 10 o’clock A.M.
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The Military Court met pursuant to adjournment
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2. Col. L.M. Lamar, member
..... Capt. William H Talley, Judge Advocate
..... C.B. Glenn, Clerk
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The proceedings of yesterday were read by the clerk
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The Court resumed the Trial of Colonel E.F. Best 23rd Georgia Regiment P.A.C.S.
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Capt. J.P. Patton being further cross – examined by the accused, reports as follows:
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....... I have stated some seventy five or eighty yards in rear of our lines at the FuAt the Furnace I suppose the Enemies force was three or four times that of our Regiment there. That is such was the enemies force which came against us as well as I can judge: Wit there was a great many of the enemies troops as was of those that attacked us. When I saw the accused as rnace the Regiment was a good deal scattered: the accused was nearer the left of the Regiment then any other part. I don’t recollect seeing any one leave the Rail Road Cut during the fight there: there were two of our men who left the cut after we surrendered, but I don’t know who they were.
....... At the time that we were firing in the cut, I know that in wounded, In captured, for the force of the enemy was much greater then ours, and our position was such that we could not get out of it with out many killed. I thought so when we first commenced firing in the cut, but we thought we would fight there as long as we possibly could. The Command was not in danger from the fire from the enemy while it was in the cut, except the men who were up on the edge of the cut firing. They were exposed while they were firing. Those below handed guns to the men above who fired on the enemy.
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....... Examined in reply by the Judge Advocate
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The affairs of which I have spoken as discussing at Chancellorsville was part of that battle, but was before the fighting commenced else where. I think it was after 12 o’clock in the day when the enemy first advanced on us. Our Regiment was detailed to guard the baggage train of the Army. I know of no other troops detailed for that purpose.
....... The rear of the train was about a mile from us when the enemy first advanced on us. We fell back towards the train the train and in the direction, the rest of our troops had gone. Our Regiment was at that time in Lieut Genl Jackson’s Command.
We surrendered about an hour and a half or two hours “by sun” I had heard no fighting their; but heard it “pretty quick after I was Captured”. The fighting then must have been two miles or two and a half miles from us. I saw nothing more of the fight except what I have stated, and a good many shells which bust near me after I was captured. The enemy carried us off in great haste. The enemy after capturing us went on after the wagon train. I don’t know of their having captured it. There was none of our men killed or wounded in the cut, that I know of.
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Capt. J.J.A. Sharp Co. G 23rd Geo Regt. P.A.C.S. a witness on the part of the prosecution, was duly sworn.
Examined by the Judge Advocate, Deposes as follows:
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....... I preferred the charges in this case. I am and was at the time of the Battle of Chancellorsville, Senior Captain of my Regiment. On the second day of May 1863 about nine or ten o’clock in the morning Major Genl J.E.B. Stuart gave the accused orders. There was a plank road held by the enemy moving about _______ to a road over which Genl Jackson’s Army Corps (to which we belonged) was firing. These roads were about a mile and a half or possibly two miles apart and there was a neighborhood road extending from the one to the other. The wagon trains of the 2nd Army Corps was passing on the road along which the corps itself was moving.
....... Genl Stuart ordered the accused to guard the neighborhood road against any advances of the enemy. He directed the accused if the enemy advanced to deploy his Regiment and hold him check, and to send for reinforcements if he needed them. Genl Stuart left with the accused a courier for that purpose and told the accused that there was a Cavalry picket in front of him. The accused, Genl Stuart directed particularly that the command of the accused should not advance but should hold the pass if attacked.
....... Genl Stuart posted our Regiment about a quarter or half mile from the road on which the corps was passing and between that and the plank road. I was there when these orders and instructions were given to the accused by Genl Stuart. It was _____, and Genl Stuart said the enemies Cavalry could not charge us, and we could fight there and hold the enemy in check as long as possible.
....... I heard an order from the accused to take command of the left wing of the Regiment, the Lt. Colonel was not with the Regiment. I soon afterwards saw the accused who came to me and told me if I was pressured mainly to fall back to some point which he said was in my rear that which I had more men and that I should hold the position, the courier who brought us the order from the accused would be I think he said in the rear “There he could communicate with his courier.
....... Some two hours after we had been in position that is sometime about 12 or 1 o’clock in the day, the enemy advanced on us. They had previously were shelling our wagon trains, but I had not advanced. With this exception everything had been very quiet. When the army advanced. I think we had three Companies deployed as skirmishers along the front. After a very little firing from our skirmishers. I heard an order for retreat. At that time I could see no enemy, and the skirmishers in front of me had not fallen back. There was nothing to make my boys retreat: but I looked and saw the right wing gone. It was a hundred yards ahead of us. The command came along the lines to or that my wing followed and I was told by the Acting Adjutant to come on form on their right wing up on the hill near the Furnace, this was near the road on which the train of wagons was then passing. Then the regiment was informed by the accused, and I then seen the accused for the first time since that of which I have spoken. The place where this neighborhood road came into the road on which the trains was passing. The regiment, after forming advanced in the direction of the enemy.
....... As I was moving with the left of the Regiment which was at the time advancing. I saw the accused behind a tree in rear near about opposite to the center of the regiment. The accused was near when the Regiment had reformed. He was about forty or fifty yards in rear. I don’t know how long he stopped there. I advanced with the left wing, I could not see the whole line in consequence of the broken character of the ground.
....... We had skirmished for some time on the left, having advanced about two hundred yards, when on information that the right wing was gone I ordered the left wing to fall back. I could not find the accused, and had to take the honorability of the order. I did not see the accused until I saw him some three hundred yards in rear of where we had been skirmishing. The accused was meeting us, this was in the main road, we having fallen back to it and followed it for some little distance. The accused directed me to detail ten men and deploy them as skirmishers. I stopped to do this and when I came up with the regiment again it was in a Rail Road Cut which ran across the main road about a half mile in rear of our position was the Furnace. As we fell back the cut was on the right of the road and did not reach quite to it. On the left of the road as we fell back, there was a considerable bank, just in front of us as we were formed in the cut, there was an open space for about a hundred yards, then there was a creek, and the ground near the creek was muddy. The cavalry came up in front. Probably our skirmishers had fired, but none of the men in the cut had fired when I received the accused. The Major and something like half our Regiment had been captured in the skirmish near the Furnace.
....... I was second in command when in the cut that is next to the accused. I received no notice from the accused of his intention to leave the Command then, nor did I receive any orders from the accused for retreat from there. I think there about one hundred and ninety five officers and men captured in the cut. Some of the men went out of the cut, after we had surrendered, that is they escaped. We kept up our fire on the enemy about a quarter or half hour after the accused left us.
....... During the day the Regiment lost but one killed and some four or five wounded. These casualties were received in the skirmish near the Furnace, except one in that case a man was wounded on the left of the cut, I think. The force of the enemy that captured us was I think a Brigade. It was an hour “by sun” or more when we surrendered. We left the force that captured us at the cut.
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Cross Examined by the Accused
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....... The general order as regulations of the Army I recounted requires an officer to repeat the command of his superior. There was no general orders that I know of in relation to advancing the movement of the flanks of command. On four occasions we had received an order to observe the flank of the leading Regiment of the Brigade, but I know of no such orders on this occasion. I was not present with the Regiment during the campaign around Richmond. When we first took position in the woods at Chancellorsville, in addition to the three Companies deployed as skirmishers, ______ ______ these men six men under command of a Lieutenant sent out on the left flank of the Regiment. Where Lt. Smith Acting Adjutant called to me and told me to form on the right wing, I was with the left wing about two hundred yards or more from the place when the Regiment afterwards reformed near the “Furnace”.
In falling back from the first position, no orders from me to retreat and ____ - _____, the left wing followed the right. I halted them before they got back to the place where the Regiment was formed, that is I halted some of them, and tried to halt them all. I suppose it was two hundred yards or more from the Furnace house to the nearest point of the woods.
....... The right wing of the Regiment was on the sides to where the Furnace house and the woods. I only know that the right wing proper was there, when I saw the accused behind the tree, there were only a few shade trees, this was between the houses on the top of the hill and the mount point of the woods. There was two houses the Furnace and that some reported to. The shade trees I spoke of was only some thirty or forty yards from the house on top of the hill, they were right close to it. I did not think anything of the fact, that I saw the accused behind a tree, except that it shown he was not with the Regiment.
....... When the accused ordered me to detail the ten men as skirmishers, he was about two hundred and fifty or three hundred yards from where we had skirmished on the second line we had established. I suppose when I saw the accused was a hundred and fifty yards from the caisson. I saw a couple of men leave the cut; on the right, but I saw none leave on the left I gave no orders to any one leaving the cut.
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Examined in reply by the Judge Advocate
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....... When I met the accused while we were falling back from near the Furnace, I asked him where he had been, I don’t remember his answer.
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Examined by the Court
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I am certain that the accused was not of the number that escaped after the surrender.
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The Court then adjourned until Wednesday November 25th 10 o’clock A.M.
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W.H. Talley
Judge Advocate
D.F. Jamison
Presiding Judge
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Charleston, S.C. November 25th 1863
Wednesday
10 o’clock A.M.
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The Military Court met pursuant to adjournment
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Present
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1. Col. D.F. Jamison, Presiding Judge
2. Col. L.M. Lamar, member
..... Capt. W.H. Talley, Judge Advocate
..... Capt. John O’ Ferrill, Provost Marshall
..... C.B. Glenn, Clerk
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The proceedings of yesterday were read by the clerk
The Court resumes the Trial of Colonel E.F. Best 23rd Georgia Regt. P.A.C.S.
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.... **********************************************
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Lieut. A. Worley Co. E 23rd Geo Regt. P.A.C.S. a witness on the part of the prosecution was duly sworn
Examined by the Judge Advocate, deposes as follows:
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....... I was with the detachment of four companies of my Regiment sent under command of the accused, then the Lt. Colonel of the Regiment;
On the 14th of September 1862 at South Mountain, up to the top of the Mountain to support a battery there.
This was about a half a mile from our Regiment. It was I think a little after 12 o’clock in the day when we started from the regiment. We got to the top of the mountain and formed in line, and were ordered to lie down, some twenty yards in rear of the battery. We were under a pretty considerable fire of musketry, but none of artillery then. A very short time after we got there the battery limbered up and retreated. Our battery detachment ______ some three or five minutes, after the battery moved ; when Capt. Patton about faced us, and marched us down the mountain in retreat.
....... About the time the detachment got to its position on the top of the mountain and lay down. I saw the accused go to the left of the command, and I did not see him again until we had marched down the mountain in retreat some sixty or seventy yards, when the accused came in on our right as we were about faced. When the accused went to the left on top of the mountain, I saw him get behind some rocks, that were there. The accused when he went to the left of the detachment separated himself from it some thirty or forty yards. that is he was about that is he was about that distance from the detachment. After the accused stopped behind the rocks, I did not to the best of my recollection, see the accused again until we had gone some sixty or seventy yards down the mountain.
....... My Company did not scatter to take shelter. Officers and men lay down but they had nothing to shelter them. They down in line of Battle. There was some scattering growth some severely there where my Company was. On the left of the growth was perhaps thicker, and at some distance from the left there were tall rocks. The conduct of the accused was different from that of any other officer of the detachment in these particulars that we went to the left of the detachment and he got behind a rock. The accused appeared to be considerably agitated, when he went to the left. I think the accused gave the order to lie down, but after that as far as I know, he exercised no control over, and gave no orders to the command, until he repositioned the command in the retreat, as stable. After we got some seventy of eighty yards from our position on the mountain, we came to when a caisson was turned over, and we halted until it was “righted up”. Which then “Longstreet’s men” came up, and the officer in command asked for the officer in commanding our detachment, and gave the accused orders that we should go to the front with them. I heard no more orders.
....... We did not go to the front but went back to our Regiment. I was wounded at South Mountain and was not at Sharpsburg. I was with my Regiment at Chancellorsville, when it was posted across the neighborhood road. There was I think one, and I think two Companies to the right of mine which was in line. There were two and perhaps more Companies of the Regiment deployed as skirmishers along our front.
....... The enemy advanced, and our skirmishers fired a few shots, when Major Ballenger gave the orders to retreat. Some hour or so before the retreat commenced, I saw the accused some forty yards in rear of the Regiment. The next time I saw him was when he stopped over near the Furnace. The Regiment had retreated there. When we got there, the accused and Maj. Ballenger formed the Regiment again. After this we were marched up some sixty yards to a fence, and ordered to us down again. This was in the direction of the enemy.
....... I don’t know that I saw anything more of the accused until there came an order down the line to retreat. I don’t know who gave it, I did not see him until after a portion of the Regiment had retreated and a position stood. I then saw the accused in the road about a hundred yards in front of our line as we retreated. He was standing in the “big road” on which the wagon train had passed. The accused told me and Capt. Ferguson (my Captain) to take our Company to a pile of big iron and commenced firing again. This portion was some sixty or seventy yards from the accused.
....... After we had been there some little time, The accused called to us “to get out of there”, there was still some of our men on the line firing. Capt. Sharp had formed a portion of the Regiment when Lt. Smith, Acting Adjutant, told him that there was a better place to form further back. About one hundred yards from where we had formed under Capt. Sharp we met in our retreat the accused meeting us. I think it must have been two hundred yards or further from where we formed line of battle and skirmished near the Furnace, to where we met the accused, I heard Capt. Sharp ask the accused where he had been. I heard the accused say something about Artillery, but I can’t say what the answer was positively. The accused turned back with us and we went to the rail road cut. I suppose the accused was in the cut with us, something like a half hour. During that time he passed out over and returned. I saw the accused go out of the cut the last time. I suppose it was some fifteen or twenty “may be” twenty five minutes after this that the Regiment surrendered. To the best of my recollection the men in the cut did not fire before the accused left. They fired afterwards in particularly for some ten or fifteen minutes afterwards, the accused stepped out of the cut a few steps, “partly front” and then looks and runs”
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Cross Examined by the Accused
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....... My opinion is that my Company was not scattered on the top of the Mountain, at South Mountain. That they were in regular line after they got on the mountain. While on the mountain, Capt. Patton’s Company was on the right, mine next, I think Capt. Steel’s was on the extreme left. I don’t remember what other Company was with us. I did not see the commanding officer of the battery to know him. I saw Genl. Hill, I did not see the accused speak to genl. Hill, nor did I see him give the accused orders.
....... When we retreated, we were first about = faced and marched off in line of battle. I did not know there was any line of skirmishers behind us on the retreat from the top of the mountain. When the accused went to the left to the rock I speak of he came from towards the right of the detachment. I think the right of the detachment was right about opposite the battery. The detachment did not occupy but our position that I know of while we were on the mountain. When at Chancellorsville, Maj. Ballenger gave the orders to fall back, he came to the best of my recollection, from the direction of the “settlemen’s road” that the Regiment was formed across. I think that the left was at the Furnace, Maj. Ballenger rallied the regiment on the right when I was as far as I know, Maj. Ballenger advanced it to the fence. He was on the right of the regiment. when we formed near the former, I don’t remember what Company was on our right. I think my Company was the third from the right.
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....... The accused has submitted a request that the prosecution be directed to withdraw, temporarily in order that he might submit a motion, stating that he did not during the argument in support of his motion to the word of the prosecution.
....... The Court directs the prosecution to withdraw temporarily; which was done. The accused then submitted a motion that the prosecutor be exited from the Court. On the ground that the witness would not speak as freely in his presence, The Judge Advocate said in reply to that the prosecutors right to be present was clear: and that witnesses were much more apt to speak truthfully, when confronted by prosecutors and accused those were only in finances of the Cotton.
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The Court presented the motion, and the prosecutor Capt. Sharp was recalled.
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Capt. R.N. Groves Co. B 23rd Geo Regt. P.A.C.S. a witness on the part of the prosecution, was duly sworn: Examined by the Judge Advocate, deposes as follows:
....... I saw the accused at South Mountain while we were lying down on the top of the mountain lie down behind a rock about twenty yards to the rear, opposite to the right of the center of the detachment. I thought the accused agitated ______ ______ gave orders to lie down I don’t who. Which behind the rock I could see him. A portion of the time he was gone from there. I saw in command of a Company there. I saw nothing more of him until had started down the Mountain and gone some short distance. I don’t remember to who heard any orders while we on the _____ of the mountain, except the order to lie down
....... We marched down the Mountain, some eighty or one hundred yards to where a caisson was turned over in the road. We then met some of Genl. Longstreet’s command, the accused was with us. At that place an officer told the accused to fall in with the detachment at the head of the Brigade. The officer had asked the accused about the detachment before, and the accused had told him that we had been sent up to support battery “and how it was” other Officers ordering the accused to fall in with “the Brigade” the accused said that he had orders from Genl. Hill to return to his Regiment. I don’t recollect that the Officers said anything in reply.
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....... A member of the Court having obtained leave of absence on reasons on a public nature, which would leave the Court adjourned until Tuesday December 1st 1863.
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W.H. Talley
Judge Advocate
D.F. Jamison
Presiding Judge
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Charleston, S.C.
December 1st 1863
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Tuesday
10 o’clock A.M.
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The Military Court met pursuant to adjournment
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Present
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1. Col. D.F. Jamison, Presiding Judge
2. Col. L.M. Lamar, member
..... Capt. W.H. Talley, Judge Advocate
..... Capt. John O’Ferrill, Provost Martial
..... C.B. Glenn, Clerk
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The proceedings of Wednesday last were made by the clerk
The Court resumes the Trial of Colonel E.F. Best 23rd Georgia Regiment, P.A.C.S.
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.... **********************************************
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Lieut. J.R. Pritchitt Co. I 23rd Geo. Regt. P.A.C.S., a witness on the part of the prosecution, and duly sworn.
Examined by the Judge Advocate, deposes as follows:
....... I was with the detachment under the accused at South Mountain. The accused with the detachment was on the top of the Mountain, was some two or three paces in rear of the line, behind a rock. The orders have been given to lie down. The men and some, but not all of the officers were lying down. Capt. Patton called for the accused, and some ten or fifteen minutes afterwards he (the accused) came from behind the rock. The manner of the accused I thought was unusual. He seemed to be excited, He did not seem to know what to do
....... The accused when he came up ordered the detachment back. We met an aid to Genl Longstreet, who ordered the accused to take his detachment back to the top of the mountain. I did not hear the reply of the accused. I was at Chancellorsville, there when our Regiment was in line of battle first, and our skirmishers had been thrown out.
........ The enemies picket’s had fired a few shots when the accused through Maj. Ballenger ordered it to fall back. I heard the accused give the order to Maj. Ballenger and the latter extended it. The accused was behind a bank or stump about seventy five yards in rear of the Regiment. The Regiment was rallied near the Furnace and then advanced some fifty yards towards the enemy.
....... I saw the accused at this time behind a tree some thirty yards in rear of the Regiment, and some afterwards, the accused could not be found. The accused was called for by Capt. Sharp and several other officers. The next place I saw the accused was at a little branch about three hundred yards in rear of the line where we had made our second stand. My Company was the fourth from the left of the Regiment. I suppose the accused was missing about fifteen on the occasion referred to. The Regiment then fell back to the Rail Road Cut. We remained there about a half hour before the enemies “picket’s” advanced near ______, and commenced firing. About the time the enemies skirmishers opened fire on our Regiment in the cut, some of our skirmishers (but not of my Regiment) fell back towards us from our left; and a courier, I think of Genl Archer, gave the accused an order. It was ordered, but I did not hear it.
....... Immediately after the communication of the courier, the accused left the cut and ran and left the Regiment there. I suppose the Regiment de-_____ the position about an hour and then surrendered
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Cross Examined by the Accused
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....... I saw a mounted officer on the top of South Mountain: but did not see the accused speak with him. The mounted officer I speak of was Genl. D.H. Hill. He was about twenty yards to the right of our detachment when I saw him
....... When the accused left the mountain with the detachment he went to the Regiment. The Regiment was engaged that evening, I suppose some two hours. When I saw the accused behind a tree at Chancellorsville, he was about on a line with the house on the top of the hill and to the left of the houses some thirty yards in rear of the line of battle. It was a single tree. I am sure my Company was the fourth from the left.
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Lieut. B.B. Moore Co. K 23rd Geo Regt. P.A.C.S., a witness on the part of the prosecution, was duly sworn
Examined by the Judge Advocate, deposes as follows:
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....... In the Battle of Sharpsburg, I think the 17th of September 1862, I saw the accused but once. He was the Lieutenant Colonel of the Regiment Col. Barclay being in command. When I saw the accused, our Regiment had been advancing but had rather halted, had stopped at that time, a good many of the men lying down, some of them engaged and firing. The accused was a few paces in rear to the right of our Regiment, a little beyond the right. Col Smith of 27th Geo told the accused ”to get out and push up his men. The accused never went and told the men to go ahead.
....... This was the last time I saw the accused in the fight. Col. Barclay was killed in the Battle of Sharpsburg, but we had been fighting before I saw the accused, as stated, and I don’t know whether Col. Barclay was killed before of after that time.
....... At the time I have mentioned as that as which I saw the accused. I heard an order to advance except what the accused gave. My company was on the extreme right of the Regiment. The Regiment advanced about one hundred yards after this, and was engaged about a half hour. The Regiment then fell back. After the order from the accused mentioned, I heard no orders from any one to the Regiment, and no one seemed to be in command of it.
The Major was not in the battle
....... I was in the rail road cut at Chancellorsville, while there I saw a man who I suppose was a courier, approach the accused, soon afterwards the accused “ran out of the cut” I did not hear the accused say anything. The remainder of the Regiment in the cut fought the enemy about a half hour after this and then surrendered.
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Cross Examined by the Accused
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....... At Sharpsburg the 27th Geo regt. was on our right. Col. Colquitt (I think he was their Colonel) Commanded the Brigade. When I saw Colonel Smith ordered the accused up, was in the field something over a hundred yards from the fence one which we had passed, I think that the Regiment had halted over before in its advance prior to the halt of which I have spoken.
....... At the time Col. Smith gave the accused the order. I suppose I was not farther from the accused then eight or ten steps. Col. Smith’s left was only few steps from our right. When the Regiment fell back, I started back with my Company. The Regiment was falling back, before I knew anything of it. I was wounded while the Regiment was falling back, and saw nothing of him, (the accused), after he “came out from behind the pile of rocks and told the men to go ahead”.
....... At Chancellorsville I saw some men, but very few leave the cut. I gave no orders to them. I was on the right of my Company, and I stopped some of my men who started out.
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Private W.M. Bishop Co. G 23rd Geo Regt. P.A.C.S. a witness on the part of the prosecution was duly sworn.
Examined by the Judge Advocate deposes as follows:
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....... During the Battle of Sharpsburg, my Regiment was advancing when the colors having got farther ahead than the left, there was some little confusion and the Regiment halted. We were in a cornfield, the fire of the enemy was very heavy.
....... While we were there the accused came, and lay down behind a pile of rocks. The colors as well as I could judge was about seventy five yards ahead. The colors having moved more rapidly then the left. The right had moved on with the colors. I was with the left wing. It was when we halted and commenced firing that the accused came behind the left and lay down behind the rocks.
....... At this time Col. Barclay walked up to the left and called to us of the left “Forward men, Forward”, and we moved up and came in line with the right wing, but I did not see anything more of the accused. I am certain that Col. Barclay gave the order. I do not know _____ at what state of the fight he was killed I did not see him after the advance of the left. After a while our Regiment fell back mabe a mile, and then reformed and Capt. Boston, Senior Captain present, took Command of the Regiment. I did not see the accused from the time I have mentioned until he joined the Regiment some months afterwards, at Fredericksburg.
....... If the accused followed us in our advance, I never seen him. I don’t remember seeing Col. Smith, If I did I did not know him. An officer, I think a Captain or lieutenant of some other Regiment passed near our left just before we advanced to support the right; and asked “What is the manor that the left is not following the colors”. It was there that Col. Barclay gave the order mentioned. There was right “smart confusion in the Regiment.
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Examined by the Court
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....... I think the 27th Geo. was on our right and that the 13th Ala was on our left, but I am not certain.
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Lieut. L.A. Smith Co. I 23rd Geo Regt. P.A.C.S. a witness on the part of the prosecution was duly sworn:
Examined by the Judge Advocate and deposes as follows:
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....... The conduct of the accused in the Battle of Chancellorsville was unusual. After we first formed line of battle the accused was some seventy five yards in rear of the Regiment behind a stump in a bank of earth, I did not see him afterwards until we had fallen back some half a mile from there. I was with my Company which was the next Company to the left: and was the extreme left Company after Capt. Sharp’s Company (the left Company) was thrown out as skirmishers.
....... I was with my Company through the fight and fell back with it to the lines near the Furnace. I did not see the accused at all while the Regiment made the stand on the line near the Furnace. The next time I did reckin was about half way between our line in the second stand and the rail - road cut. This was about three quarters of a mile from that line. I saw the accused leave the rail - road cut “He ran out” I suppose it was a half hour or longer after that, that we surrendered. The Regiment during this time was firing. I heard no order from the accused while we were in the Rail - Road Cut.
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Cross Examined by the Accused
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....... I don’t know of any other troops besides our Regiment, which was under the command of the accused at Chancellorsville. When the accused left the cut, he went “right back to the rear”. He was on the left of the Regiment when he went out.
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Capt. W.J. Boston Co. A 23rd Geo Regt. P.A.C.S. a witness on the part of the prosecution was duly sworn:
Examined by the Judge Advocate, deposes as follows:
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....... When we first formed line of battle at Chancellorsville, I saw the accused passing back and forth; not before the firing commenced, I seen nothing more of him more of him until after we had fallen back from the line of battle near the Furnace, some three hundred yards, as well as I can judge, in rear of that line.
....... He met us as we were falling back near a little woods toward the rail road cut. When the enemy first advanced on us, Maj. Ballenger went some fifty yards to the rear, and called to the accused and told him the enemy was advancing on our right, and asked him what he should do. I understood the accused to say, that we should fall back: and Maj. Ballenger extended that order.
....... My Company was either the third or forth, I think the third, from the left of the Regiment. When the order fall back was given, our skirmishers had not come in. When I met the accused near the woods as stated, some one asked the accused what he was going to do. He answered that he was going to take his Regiment to the rear, and that by the nearest way”. I said to him, that that would not do, that it would be shameful. That the wagon train was just on the top of the hill, and we had been put there to guard it, he said that we ought to do it. He asked where we could form, I told him there was plenty of good places to form. He then marched the Regiment into the cut.
....... I did not see the accused leave the cut.
He had gone before I knew anything about it. From the time I missed the accused from the Rail – road cut, we must have been in the Rail – road cut something like a half hour or three quarters of an hour before we surrendered, the most of this time we were firing. I heard no interaction from the accused as to his leaving nor orders for the Regiment.
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Cross Examined by the Accused
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....... When I had the conversation mentioned, with the accused, the wagon train was up on the hill, as well as I can judge, about two hundred yards from us. During the conversation, I was at the head of my Company.
The conversation was before the Regiment went into the cut.
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The Court there adjourned until Wednesday December 2nd 1863 10 o’clock A.M.
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W.H. Talley
Judge Advocate
D.F. Jamison
Presiding Judge
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Charleston, S.C. December 2nd 1863
Wednesday
10 o’clock A.M.
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The Military Court met pursuant to adjournment
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Present
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1. Col. D.F. Jamison, Presiding Judge
2. Col. L.M. Lamar, member
..... Capt. W.A. Talley, Judge Advocate
..... Capt. John O’ Ferrill, Provost Martial
..... C.B. Glenn, Clerk
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The proceedings of yesterday in note by the clerk
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The Court resumed the Trial of Colonel E.F. Best 23rd Georgia Regt. P.A.C.S.
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Maj. M. Ballenger 23rd Geo Regt. P.A.C.S., a witness on the part of the prosecution, was duly sworn.
Examined by the Judge Advocate, deposes as follows:
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....... I was Major of the 23rd Geo. Regt. in the Battle of Chancellorsville. The accused told me that Genl. Stuart had placed the Regiment shown him the position which the Regiment first took; and that his orders was not to bring on an attack, but if the enemy advanced to engage him, and call our army General that might be passing, for support.
After the Regiment had got in position some little time, the accused came from where he had been near the main road over which our wagon train was passing and when there was some cavalry, and told me to walk back with him to the Furnace and look at a place there we might take if it should become necessary to fall back.
....... This position I suppose in about a quarter of a mile in rear of the position proposed. I suggested to the accused that we had better return to the Regiment. I returned to the Regiment and the accused remained near the Furnace. I left in conversation with an officer who was stationed there with some Cavalry.
....... There was some of our Cavalry picket’s in front of our Regiment, and also the skirmishers of our Regiment Our information received from a cavalry picket at that the enemy was forming lines in our front. I sent some to the main road for the accused. This received came up to where the Regiment was and told me that there was no troops passing the main road at that time – but that the wagon train was passing.
....... I asked the accused what our orders was in the amount that the enemy advanced in force, and there were no troops passing to support us. He said he had no orders for such an event, and talked like he did not think we should make fight there, if the enemy advanced in force ______ we could get support. I told him I knew what his orders were and was responsible for them, but that I thought we could hold the enemy in check at least for a while and that I thought we ought to fight them, until the enemy came in too strong force. The accused decided that the Regiment should remain there. He then spoke of going back to the road where our trains were passing to make some arrangement to get support, I told him I did not think he ought to go, that he had a Cavalry Courier who been left with him for that purpose.
....... He said they were not to pay any attention to the Courier and that he had better go himself. I said to him, that if he went and we got into a fight, he would be sorry for it. He did not go. After a while Capt. Glenn reported to me that the enemy were passing nearer our right and a over some distance from the right; and as the accused had directed that the Regiment should fall back in that contingency, I reported the facts to him as reported by Capt. Glenn.
....... I found the accused about fifty yards in rear of the Regiment lying down behind something. Our picket’s had been firing on the right, that is our skirmishers. I don’t think a gun had been fired from our line, that is our main body.
....... Some of our skirmishers had fallen back to within some fifteen or twenty paces on our right. I could not see what was going on, on our left, the timber was thick. There was no firing then. When I reported to the accused he told me to order the Regiment to fall back. I went to a position where I could be heard, and extended the order.
....... When the accused told me to to order the Regiment back, he got up and went toward the furnace. When we got back to the main road, a cavalry officer asked the accused whom I said their if he did not intend to make a fight there that if he did not, the wagon train which is very vulnerable would be lost. The accused then saw that we would form the Regiment then, and he and I formed it. The left was then falling back. I think though I was not in charge of it, and the woods were thick so that I could not see what doing there.
....... After the Regiment was formed there the accused ordered us to advance in about thirty or forty yards to a fence. We did so, the accused did not accompany us; or I did not see him. I was captured with forty two officers and men on the right. We had held the enemy’s left in check until our left got out of the woods.
....... It was about twenty minutes after I left the accused that I was captured. I had looked for the accused to report to him about the movements of the enemy, but did not see him. He may have been in the woods. Where the right was, it was open ground, but the greater part of the Regiment was in the woods.
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Cross Examined by the Accused
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....... When the accused remained near the Furnace in conversation with the officers of cavalry as stated, I don’t think he told me his object in examining When I left the accused over on the main road, I don’t remember to have seen anything more of him until I sent for him. When I reported accused as stated, as well as I remember, I told him that Capt. Glenn reported to me that they were flanking us on the right.
....... My orders were to order the Regiment back in a report from Capt. Glenn that the enemy were passing ______ our right and the creek, but when I got this report, I saw us immediate danger and was not willing to take the ____________ of ordering the Regiment to fall back and hence reported to the accused.
....... There is no doubt from what I know of the ____ion now, that the enemy would have flanked us, if we had remained, but I seen no immediate danger at that time the distance from our right to the creek was some five or six hundred yards in front of us.
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Examined by the Court
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....... After we had formed in our second position, I looked for the accused, but did not have my places to find him. When I found the accused lying on the ground as stated, there was firing of Skirmishers. there was some danger where the accused was left I did not command that there was much.
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Capt. W.J. Boston, recalled on the part of the prosecution
Examined by the Judge Advocate, deposes as follows:
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....... In the Battle of Sharpsburg, the last time I saw the accused was while the Regiment was falling back. The point at which I saw the accused on that occasion was two or three hundred yards in rear of the extreme point to which the Regiment had advanced in the Battle.
....... The accused passed me. The accused was running when he passed me, there was another officer with him “they went for a big rock pile. I passed them some distance to my left, the whole Regiment was then falling back. All the Regiment was running in direction of the officers.
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Cross Examined by the Accused
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....... The next morning there were only about thirty some men that could be got together as the Regiment. I took command of them that morning. No one had been in command from the time of the fight to that time. The accused was officially reported “Missing in action”, as well as I remember. I reported it. I was known that he was wounded
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The Prosecution here closed
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Corpl. John Hambrick Co. E 23rd Geo. Regt., a witness on the part of the defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I saw the accused on South Mountain the fight. I remember to have seen the accused when we first got up on the mountain and after we left there; but I don’t remember to have seen him any other time while we were on the mountain.
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Serg. J.H. Taylor Co. E 23rd Geo. Regt., a witness on the part of the defense, was duly sworn.
Examined by the accused, deposes as follows;
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....... On South Mountain an order was given, I think by the accused for the detachment to lie down. I saw the officer in command of the battery, and I saw the accused talking to him. They were in front of our lines. In a short time after we got up there. I saw the accused with the officer. I think we had lay down. I don’t think I saw the accused again until we had started down the mountain.
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Lieut. M.A. Collins Co. E 23rd Geo. Regt., a witness on the part of the defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... At South Mountain, I saw the accused “principally all the time,” with the detachment.
....... When the detachment was marched up, up on the Mountain, we had orders to lie down, by the accused. When the detachment first got there, a part of it was exposed, and the other part was protected by the crest of the mountain. Afterwards the exposed position was ordered to fall back, and took shelter behind some rocks. The accused gave those orders.
....... Most of the time when I saw the accused he was near the right of the detachment. I saw the accused with the Commanding Officer of the battery, and I suppose they were talking together. That officers horse was standing “square across a tree and he was standing right behind the tree”.
....... The accused gave the order to leave there. He was near the left of the detachment at that time there were no skirmishers deployed there. We fell back “a fire”, some one or two hundred yards, where they formed a piece of artillery or caisson belonging to the battery turned over in the road. We then deployed across the road, until they could come get the caisson up.
....... At Chancellorsville my Company was the right Company of the Regiment. The accused formed us where we fell back to the Furnace. The accused was at the right of the Regiment then while it was forming.
....... My Company was deployed as skirmishers. The accused ordered it done. I did not see the accused afterwards until we were falling back to the rail road cut. I saw nothing unusual in the conduct of the accused in either Battles mentioned.
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Priv. Drewry M. Sosebee Co. E. 23rd Geo. Regt., witness on the part of the defense, was duly sworn.
Examined by the accused, deposes as follows;
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....... At Sharpsburg, the Regiment in advancing upon a high fence into an open field, and then halted and formed. I saw the accused there. We went on from there some thirty or forty yards, and we halted again. I saw the accused there also, he was right by my side. He was to the left of the Colors I think my Company was next to the Color Company.
....... He was standing up, and the Regiment was lying down having gave orders to do so. When we advanced from that point I saw Capt. Gratton Col. Colquitt’s Adjutant, pass along the lines. I heard Capt. Gratton inquired for Col. Barclay. He was on the left of the Regiment. This was before Col. Barclay was killed. Capt. Gratton told the accused that the orders to “Forward”. He told them to “Forward” two or three times, before they started. They then were twenty or thirty yards further. I saw the accused after he gave the order. He was in front of our Company.
....... The last time I saw the accused he was talking with Col. Barclay the second or third time that we halted. I saw them when they separated. The accused started towards the right of the Regiment. The accused in the Battle of Sharpsburg was as cool as anybody.
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.... ***********************************************
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Private Russell Bryant Co. E 23rd Geo. Regt., a witness on the part of the defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I was in the battle of Sharpsburg. The accused went right on behind my Company from the field where the Regiment lay the night before the Battle. He stayed close behind the Company until Col. Barclay told him to go to the right of the Regiment. This was after we crossed the high fence and formed and advanced, and halted, and started again. A few minutes afterwards I was wounded, and saw nothing more of the accused.
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Cross Examined by the Judge Advocate
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....... I saw the accused two or three times behind my Company while we were marching I think it was about a hundred yards from the high fence that we halted; but I was fighting so that I don’t know much about the distance.
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The Court then adjourned until Thursday December 3rd 1863 10 o’clock A.M.
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W.H. Talley
Judge Advocate
D.F. Jamison
Presiding Judge
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Charleston, S.C. December 3rd 1863
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Thursday 10 o’clock A.M.
The Military Court met pursuant to adjournment.
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Present
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1. Col. D.F. Jamison, Presiding Judge
2. Col. L.M. Lamar, member
..... Capt. W.H. Talley, Judge Advocate
..... Capt. John O’Ferrill, Provost Martial
..... C.B. Glenn, Clerk
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The proceedings of yesterday were read by the Clerk.
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The Court resumes the Trial of Colonel E.F. Best 23rd Geo. Regt. P.A.C.S.
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Capt. W.H. Renfro Co. E 27th Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I was at the Battle of Sharpsburg. I was acting as Major of my present Regiment. After the engagement commenced, our 1st Colonel (Zachary) having been wounded just in the opening of the fight. My position was on the left of my Regiment. The Brigade halted twice during the charge, I think we made two charges. Counting the first time we formed line of battle; we halted three times. Col. Smith was on the right of his Regiment, I saw Col. Smith on the left of his Regiment, I was in a position to enable me to see what occurred in rear of the left of my Regiment.
....... Col. Smith did not pass me, or go farther to the left than when I was ported. I was some twenty steps to the left of my Regiment at the time Col. Smith came to me. I did not see the accused behind my Regiment. I saw the accused while making the last charges. He was near the right of his Regiment, I suppose there was a Company or two to his right.
....... We were going in a Charge, and some of the men in front of others. The accused was marching in front of the body of his line.
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Cross Examined by the Judge Advocate
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....... The time I saw the accused was about ten minutes before we fell back. We advanced about fifty yards after I saw the accused. We halted after I saw him for some ten or fifteen minutes, before we fell back that halt was at the farthest point to which we advanced. I don’t know the exact time we fought. It was some ten or fifteen, perhaps twenty minutes.
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.... **********************************************
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Serg. D.C. Roberts Co. I 23rd Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I was with the detachment at South Mountain. The accused marched us up to the top of the mountain, and went to the officer Commanding the battery. He then came back, and marched the detachment farther forward. There the detachment lay down.
....... I saw the accused after the detachment left the top of the mountain. While we were lying down, the accused came up and lay down behind my Company. I am certain I noticed him there one time.
....... I saw the accused leave the Rail – Road Cut, in the Battle of Chancellorsville. I don’t think I saw any officer order any of the men back that left or attempted to leave the Rail Road Cut..
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Cross Examined by the Judge Advocate
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....... I was captured at Chancellorsville, I saw the accused at the second line, near the Furnace. At that time I saw him, he commanded the Captain to tell the men to lie down. The enemy was firing on us at that time.
....... I next saw him, some three or four hundred yards from there, this was in the road between where we were captured and the furnace. He was standing still, ordering some men to be deployed as skirmishers.
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.... *********************************************
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Priv. W.H.T. Lewis Co. D 23rd Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I was at the Battle of Sharpsburg, I was wounded at the third halt of the Regiment. Just before I was wounded, the accused and Col. Barclay passed over the line, and went toward the right, I was on the left.
....... I saw the accused when the Regiment first formed. I saw the accused also at the second halt. Col Barclay, Capt. Patton and the accused were together.
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Serg. Maj. J.E. Covington 23rd Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I was present at the Battle of Chancellorsville. I saw the accused before the skirmishers first became engaged. He was in rear of the Regiment about thirty or forty yards, Before the firing, he was sitting down. He was not sheltered. I saw the accused when the Regiment started back to the Furnace. The accused while forming it, was opposite the Furnace.
....... The accused advanced the Regiment from the road by the Furnace, and formed it in line of battle and thru out skirmishers, on the front and flank. Some time after that, the dismounted cavalry reported that the enemy was advancing, and soon afterwards the enemy fired on our right flank, flanking our Regiment.
....... I heard Maj. Ballenger report to the accused, that the enemy was flanking us. What I have said in reports to the accused advancing the Regiment Joining in line of battle, throwing out skirmishers, the reports of the Cavalry and of Maj. Ballenger all relates to the first position of the Regiment before it fell back to the Furnace. Opposite the Furnace.
....... After the Regiment fell back then, the accused formed it in line of battle and advanced it to the fence, which was about fifty yards. When the Regiment halted the accused came to me and asked me if I could see the enemy I told him I could see them deploying in a piece of road opposite our right, I was in rear of the right.
....... The accused then gave an order to go the wagon train of the Corps and hurry it up. I went some afterwards the accused came down to the main road where I was, a few men came with him. The accused ordered the men to advance and give the enemy a flanking fire from where I saw him lay. They fired a few rounds when we moved them to retire. they retired, the accused ordered the men to help get off a caisson that was broken down.
....... The Artillerists abandoned it right off, and the accused said he would go and get some of the artillerists who had gone over the hill, and come back after the caisson. Where I saw him afterwards about as long afterwards as would take to move the Regiment three hundred yards, standing by the road, some thirty yards from the caissons, and between it and the Rail Road Cut.
....... When the regiment marched him, we commenced to return with it to the Rail Road Cut. Where I saw the accused again he was filing into the rail Road Cat. at the right of the Regiment. When I reached the Rail Road, the accused was ordering the men dig holes in the bank with their bayonets so that they could ascend the bank and fire at the enemy.
....... I did not hear the accused give any command to the Artillery. I did not see any other Colonel at the Furnace. There were troops passing at the time our regiment was first attacked. From the pile of big iron to the right of the Regiment, the hill was rigged stiff.
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Capt. W.G.L. Butt Co. K 23rd Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... While the Regiment was in the rail Road Cut, a courier came in near of us some hundred yards or more, and beckoned something, I could not hear what. The courier came nearer and talked to another man, who afterwards talked to the accused. I did not hear what was said in either case.
....... The accused afterwards gave orders for the Regiment to deploy as skirmishers and come out of the cut. The accused after giving these orders started out of the cut he went in the direction in which I had seen the courier that is to the rear, a little to the left. At the time the accused gave the order he was on the left of the Regiment.
....... There was only our Company between me and the accused. I repeated the order. Some of my Company including myself, two Lieutenants and about ten or twenty men obeyed the order and went out of the cut. The Colors of the Regiment were also brong out of the cut by the color bearer, my Company was Color Company at the time. At the time I left, there was no danger in the rail-road cut.
....... The fire of the enemy upon those who left was I thought very heavy. I suppose the order of the Colonel (the accused) could have been heard twenty or twenty five steps from where he was.
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Cross Examined by the Judge Advocate
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....... I suppose the order was addressed to the Regiment The command as well as well as I can remember was “to deploy as skirmishers and come out”. My Company was Color Company, and yet was the left _____ companies formed in the cut as they got there, and I suppose my Company happened to be second getting there.
Examined by the Court
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........ When the accused gave the order to leave the Cut, I suppose it had then been retired a quarter and a half hour. When leaving the cut the accused “run”. Of these who left the cut there was one struck by a spent ball. I mean by saying that the firing was heavy, that there was a great many guns fired in that direction and balls came toward us.
....... The Colors where they were carried out were rolled, and carried out by the Color bearer, down in his hand, thirty could not see him by the rest of the Regiment; I gave the orders loud enough to be heard by the next Company; but none of that Company came out with me that I know of.
....... Those who came out with me were of my Company. I think where we were in the cut, my Company had about twenty five maybe thirty men. I think not more then twenty five. I over took the accused about a half mile from the cut.
....... When I came out of the cut, the accused was about seventy five yards to the rear. There was some of the men of the Regiment saw him and following him. There were some fifteen or twenty of the Company on my left, who had come out before I had done so. None of the men who came out with me were with the accused .
....... I can’t say whether all of the Company to my left went out of the cut. A good many went to the end of the cut, and went back into it. The firing there was pretty heavy. Before the courier that I have spoken of came up, some ten or fifteen minutes. A man had ridden up and asked the accused something about whether he could hold his position. The accused replied that he could if his left was supported. The left was not supported, while I was there.
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.... ***********************************************
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Lieut. William J. Keown Co. H 23rd Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I was in the rail-road cut during the Battle of Chancellorsville, After we had been in the cut about a half hour or hour a courier rode up and asked the accused, if he could hold his position. The accused replied, that he could, if he was supported on the left. The courier said he brought his orders from Genl. Archer. I don’t recollect that the courier said anything else.
....... The left of the command of the accused was not supported. After a half hour after the first courier, another courier came and in my hearing that he brought orders from Genl. Archer for the accused “to bring his Regiment out of there”. This order was given by the courier to the accused.
........ The accused gave orders “to deploy and come out as skirmishers”. The accused “then led the way and came out, and what of the Regiment came out, followed.” The accused went the rest of his way, and we all did the same.
........ I came out of the cut at that time. I did not consider that there was any danger in the cut at that time. I thought the fire on us was pretty heavy as we came out of the cut. I suppose the orders of the accused could be heard as far as the third or forth Company, from the left. I don’t suppose the enemy’s skirmishers were more then one hundred and fifty yards in front of us. I thought they were pretty thick.
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Cross Examined by the Judge Advocate
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....... The second courier was about two hundred yards to the left and near where he he gave the orders. The accused went out a little piece to hear the order, and when he heard it, the courier spoke loud enough for us to hear it on the left in the cut. I did not hear the accused say anything to the courier.
....... The accused and the men who followed him double quicked out of the cut, and for a distance of about a half a mile from there. My Company was the left Company in the cut. I think there were nine of the men of my Company who came out with me. There were, as able as I recollect, only two of my men who stopped in the cut. The other men and officers of my Company had been captured near the Furnace. I was there and now a Senior Second Lieutenant.
....... The accused, myself and three other officers that came out of the cut. I suppose besides these there were some thirty five or forty enlisted men who did so. Most of the men who came out were from the left of the Regiment. They were some five from the center and right.
We had skirmishers on our front, and some of those _
._________
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Examined by the Court
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....... The cut where we were was some seven or eight feet deep. We had to dig with our bayonets to get footing, so as to fire. I went out of the cut first. I was on the left. The accused came out of the cut, the same time with me. The accused and myself double quicked off together, Sometimes our was a little ahead, and sometimes the other, the Regiment had not fired from the rail road cat, when we left.
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The Court then adjourned until Friday December 4th 1863 10 o’clock A.M.
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W.H. Talley
Judge Advocate
D.F. Jamison
Presiding Judge
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Charleston, S.C. December 4th 1863
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Friday 10 o’clock A.M.
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The Military Court met pursuant to adjournment
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Present
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1. Col. D.F. Jamison, Presiding Judge
2. Col. L.M. Lamar, member
..... Capt. W.H. Talley, Judge Advocate
..... Capt. John O’Ferrill, Provost Martial
..... C.B. Glenn, Clerk
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The proceedings of yesterday were read by the Clerk.
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The Court resumes the Trial of Colonel Emory F. Best 23rd Geo. Regt. P.A.C.S.
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Lieut. William A. Smith Co. I 23rd Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... I was present with the Regiment near Welford’s Furnace in the action at that place. I was Acting Adjutant of the Regiment. After the Regiment had fallen back to the Furnace and had advanced to the fence, I saw the accused at the Furnace with some Artillery that came into position and fired into the enemy. I can’t say whether the Artillery or the accused left first. I was not there when either left.
....... After the Regiment fell back to the Furnace and advanced to the fence, the accused at the Furnace gave me an order to go to the _ to bring in Company G. which had been deployed then. A few minutes after my return, I saw the accused again, at the branch near the Furnace in rear of the Furnace.
....... I don’t think there was anyone with him when I saw him, A portion of the right wing was there. I mean when I say there was no one with him, none but those of the Regiment. The accused then told me to bring the Regiment back there to the rear, that he would form it in a new position.
....... I could not see the wagon trains at that time. I saw it after we went back to to the Rail Road Cut, I could see the train about a half a mile off entirely out of danger.
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Cross Examined by the Judge Advocate
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....... When I saw the wagon train a half a mile off, I was on the top of the hill in rear of the rail road cut. I suppose the accused was at that time in the Rail Road Cut.
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Examined by the Court
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....... I do not know when the accused left the rail-road cut. I saw on the right of the Regiment, and I supposed the accused was on the left, there was no order to leave the cut that I know of, I never heard of any.
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.... ************************************************
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Private James W. Justice Co. K 23rd Geo. Regt., a witness on the part of the Defense, was duly sworn.
Examined by the accused, deposes as follows:
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....... While in the Rail Road cut I saw a courier or man acting as such come up to the cut and communicate with the accused. I was present. The courier first asked the accused if he was the ranking Officer in Command at that place. The accused said he did not know, but supposed he was.
....... The courier then asked the accused if he could hold his position. The accused replied that he could if he had support on the left. Some half hour afterward, I saw another courier some sixty or more yards to the left and in rear of the Regiment. I heard that Courier bellowed to the accused that Genl. Archer directed that he should deploy his men as skirmishers, and take them out of there, that they could hold the point.
........ A few moments afterwards the accused gave an order to “Deploy as skirmishers and come out of there as quick as possible”. The accused was on the left when he gave the order, near the left. He then walked up towards the right and repeated the order twice. My Company was, I think the third from the left, and the accused went up to where I was on the right of my Company. He also told my Captain to pass the order up the line. When the accused started out of the cut, he went toward the left.
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Cross Examined by the Judge Advocate
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....... Capt. Butt is my Captain. I came out of the cut. When the accused left he went to the left and rear, “the accused went like all the men who went out there, Double quicking pretty fast” I was away the last that I noticed go out of the cut.
........ I can’t say how far they double quicked I did not notice any body but myself. I double quicked I reckon, about two hundred yards maybe further . Lt. Moore of my Company remained in the cut. He was then as now First Lieutenant.
....... I state positively that I heard the accused give the order three different times “to deploy and come out of the cut as skirmishers”, Those of us that went out of the Rail Road cut did not get together for a half a mile. I saw the accused when he started, I did not see him afterwards. He started before I did a short time.
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Lieut. T.B. Davis Co. A 23rd Geo. Regt., a witness on the part of the prosecution, was duly sworn.
Examined in reply by the Judge Advocate, deposes as follows.
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....... I was in the Rail Road Cut, in the affair at Chancellorsville, I was about ten or twenty paces from the end of the cut on the left. I don’t think the line of the regiment extended to the left beyond the end or mouth of the cut.
....... I think I was about ten or twelve paces from the left of the regiment. I saw the accused leave the cut. I heard no orders from him, nor did I hear of any. The accused walked “pretty fast” out of the cut, and when he got a little way, the enemy fired a volley at our skirmishers, the accused then turned square off to the rear and moved faster then a double quick, I would call it a run.
....... The cut did not extend to the right as far as the regiment did. I think some five or six men went out on the right of the cut. The cut was short; and I could see to the end of it toward the right from when I was. The leaving of the cut was more at all a general thing.
....... I saw several men, some eight or ten leave the left of the cut at the same time that the accused left. I don’t remember having seen any others leave the cut except those I have mentioned. The object of the men seemed to be to get to the rear, to get away, some ahead, some behind, and it looked like every man was for himself.
........ As they was going off my recollection is, that the accused was in their front, he was ahead of them. I am not positive but I think the five men I saw leave on the right of the cut went out after the accused left. I saw Capt Butt in the Cut. When I saw him he was according to my recollection at the mouth of the cut, on the left.
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Cross Examined by the accused
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....... I don’t think there was any full Company, but that there were portions of two Companies to the left of my Company in the Cut, I say there portions of two Companies, because I saw men of two different Companies there, and not enough men to make two Companies.
....... The Companies to best of my recollection, was K. and H. I think that the left of the regiment extended to the mouth of the cut or very nearly so. My recollection is, that the accused walked “pretty fast” till he got a piece out of the cut, and there turned to his left and ran. I think the accused went some twenty five or thirty steps perhaps more from the mouth of the cut, before he turned off.
....... I saw some of our skirmishers went off with the accused, when he went. I could not see the enemy on our left.
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.... **********************************************
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Lieut. T.T. Moss Co. G 23rd Geo. Regt., a witness on the part of the prosecution, was duly sworn.
Examined by the Judge Advocate, deposes as follows:
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....... I was in the Rail Road cut at Chancellorsville, I was near the left, some twenty five yards from the left of the Regiment. The left of the Regiment extended to the mouth of the cut, but not beyond it the Companies were not formed in the Rail Road Cut exactly in proper order.
....... The position of my Company, must have been on the extreme left, As we were I think there were portions of but two Companies in my left. I saw the accused after he got out of the Rail Road Cut. I had not heard any orders from him , nor had I heard of any orders from him.
........ I saw the accused after he had got a short distance from the mouth of the cut. I saw him again and he was running, going to the rear. There were others going, three or four perhaps or more, but I did not notice them particularly as I did the Colonel. I think the accused was ahead of the others that went out.
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Cross Examined by the accused
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....... We went into the cut in some confusion and all the Companies did not get into their proper places. All the men were not with their appropriate Companies. I saw men in my Company and in other Companies who did not belong there. As well as I can remember parts of Companies A,E, and K and G were on my left. Company H was on the right. A short time before the accused left the cut, I had seen him meet a courier or a man I supposed to be such, on the left. I saw no forming of the men, just before the accused left.
........ At Sharpsburg Capt. Sharp was the third Senior Captain of the Regiment. His Company was the third Company from the right, and the right Company was skirmishing.
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.... ***********************************************
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Lieut. S.J. Burdett Co. A 23rd Geo. Regt., a witness on the part of the prosecution, was duly sworn.
Examined by the Judge Advocate, deposes as follows:
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........ I was in the Rail Road Cut at Chancellorsville, The Companies were mixed up, and I can’t tell how many were to my left. As near as I can remember I was about seventy five yards from the mouth of the cut on the left. I saw the accused leave the cut, He passed by me as he went to the left in going out of the cut.
....... I heard no orders about leaving the cut, from the accused or any body else, nor did I hear of any. When the accused left the cut he started out running, He went to the left some twenty five or thirty yards and then turned square to his left, that is to the rear of the Regiment. I saw some few other men go out just after the accused. I don’t recollect seeing any go before him.
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Cross Examined by the accused
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I was orderly Sergeant at Chancellorsville
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Lieut. J.T. Harris Co. F 23rd Geo. Regt., a witness on the part of the prosecution, was duly sworn.
Examined by the Judge Advocate, deposes as follows:
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....... I was on the left in the rail road cut at Chancellorsville, I think I was about forty yards from the left of the Regiment. As well as I can remember there were parts of three Companies on my left. Some few minutes before the accused left the cut, he passed by me, he was going to the left of the Regiment.
....... I saw him leave, I heard no orders from the accused or anyone else about leaving the cut, nor did I hear of any such orders. The accused went out of the cut, and went to the rear. Some men followed him. They were running. They started to go out towards the left but the enemy commenced firing, and they went directly to the rear.
....... I suppose I saw some fifteen men go out of the cut. I saw none go out before the accused. The men did not go out in any order, nor did they seem to be under the command or control of any body.
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The prosecution closed the reply.
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....... The accused stated that he was suffering from severe indisposition, and would not be able to purpose his defense before Monday next: and asked the Court to grant him until that day at 10 o’clock A.M. to do so. This was granted
The Court was then adjourned until Monday December 7th 1863 10 o’clock A.M.
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W.H. Talley
Judge Advocate
D.F. Jamison
Presiding Judge
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Charleston, S.C. December 7th 1863
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Monday 10 o’clock A.M.
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The Military Court met pursuant to adjournment
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Present
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1. Col. D.F. Jamison, Presiding Judge
2. Col. L.M. Lamar, member
..... Capt. W.H. Talley, Judge Advocate
..... Capt. John O’Ferrill, Provost Martial
..... C.B. Glenn, Clerk
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The proceedings of Friday last was read by the clerk.
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The Court Examined the Trial of Colonel E.F. Best 23rd Georgia Regiment P.A.C.S.
The accused submitted the written report (A) Which is hereby attached: which was made by himself. The Judge Advocate said he would not _______ time in the discussion of any of the specifications save the fourth of the first charge. The testimony in relation to the other is more or less vague and contradictory and perhaps would not warrant a conviction of a charge so grave
....... But as to the fourth specification, the evidence is full clear and free from discrepancy on all essential points.
....... The accused according to all the evidence both on his own behalf and that of the prosecution did “run away” did “abandon his Regiment” Did he do “shamefully”.
....... An Officer who quits his post or command in Danger, without justification or excuse, quits it shamefully. What justification or excuse does the accused have sent. He says he received orders from Genl. Archer to withdraw his Regiment. But he did not do this; but ran away and abandoned it. There is no evidence that Genl. Archer or any other officers authorized Indeed it was it was in direct violation of the order on which the accused relies. Again the accused argues that he gave orders to his Regiment “deploy as skirmishers and come out of the cut” and that he was hence cleared of all responsibility for the consequences of this
....... In answer to this it may be said that not two officers testify that they heard such an order and these are two who ran away after the accused, and as therefore amounted to the charge now preferred against the accused, should on the contrary some eight or ten officers including the acting Adjutant (Lt. Smith) and the Serg. Major, witnesses for the defense – testify that they heard no such order, Tho most of these officers seen him as he left the Regiment
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2nd An officer no possibility does not cease with the inacting of an order. He is vaned to superintend it’s execution; and it is impossible to excuse the conclusion, that unless the accused was moved by the motive attributed in the specification he would have discounted before he ran a half mile, that not two or three officers and some thirty men was following him.
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3rd Given if such an order was given, it simply served to present the “stampede” of the accused, Capt. Butt called the other officers and twenty men as a military evolution.
..... The whole evidence that advanced by the accused as well as by this prosecution shows too clearly to admit of doubt that the movement was a disgraceful flight the accused ran What was his motive. What the ______ He ran a half-a-mile before stopping.
....... Can it be that he did so under the influence of _______. Again he left the Regiment under Capt that without any notice to that officer and therefore left it and him bound to remain in the position until they should accidently _________his flight
....... This certainly had the affect of covering the retreat of the accused whether designed for that purpose or not. The accused speaks of the extenuation of which he was here held by Genl. Hill and other officers under whom he has served. This would have never made the subject of proof.
....... The accused has introduced no evidence in relation to his character for courage, and until he did so it was not competent for the prosecution to use answer witnesses to the point.
....... The statement of the parties being there in possession of the Court, the Court was cleared for deliberations. And the Court having considered the evidence addressed finds the accused Colonel E.F. Best 23rd Georgia Regiment, P.A.C.S. as follows:
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On the first specification of the first charge
Not Guilty
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On the second specification of the first charge
Not Guilty
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Of the third specification of the first charge
Not Guilty
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Of the fourth specification of the first charge
Guilty
Of the first charge
Guilty
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Of the specification of the second charge
Not Guilty
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Of the second charge
Not Guilty
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And the Court does therefore sentence the said Colonel E.F. Best 23rd Georgia Regiment P.A.C.S. to be dismissed from service
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W.H. Talley
Judge Advocate
D.F. Jamison
Presiding Judge
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Letter to Brig General Jordan Sep 17th 1863 from Col. E.F. Best
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Camp 23rd Ga. Regt.
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James Island S.C. Sept 17th / 63
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General
....... Since time during last June, charges were preferred against me + I was placed under arrest by order of Brig Genl Colquitt Com Brigade.
Since that time no effort appears to have been made for my Trial, Except by Genl Whiting at Wilmington about the 1st of August, which was done at my request. Before the court could be convened, my Reg’t was ordered to report to Genl Beauregard at Charleston + Genl Whiting informed me that he would forward the Charges to the Hd 2ts of the Dept
....... If the emergency is great at present as to prevent Officers of this Dept from attending a Court Martial, may I not be ordered to appear before the Military Court of this dept. There is certainly great injustice done either to myself or the Service in retaining me so long under arrest without a trial and I now respectfully request that a Court be convened for my trial or that I be ordered to appear before the Military Court of this Dept.
Brig Genl Jordan
A.A.
Genl
I have the honor truly
to be with great respect
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E.F. Best
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Col. 23rd Ga Regt
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Letter to Brig Genl Thomas Jordan Dec 29th 1863 from Col. E.F. Best
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Charleston, S.C. Dec 29th 1863
General
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....... In the case of the Confederate States vs. Col. Emory F. Best 23rd Ga. tried before the Military Court for this Dept. Nov 19th 1863, I respectfully ask for a new trial upon the grounds to wit;
I. That the Court erred in permitting the Judge Advocate to introduce additional testimony after I had closed my case, without introducing any new matter in my defense, but confined myself simply to replying to such matter as was elicited by the Judge Advocate in his examination for the prosecution contrary to the rule established with in Military + Civil Courts. Had I anticipated this final examination, I should not have closed my case without introducing more testimony in this point, but I closed after replying fully to the testimony introduced by the Judge Advocate in his first examination. Without this rule a defendant would never know when to rest his case
II. That the findings of the Court is contrary to the weight of evidence
1st Because the evidence shows that I left the Rail Road Cut under orders from a Superior Officer, that I gave orders to the Regiment to fall back that the orders were repeated + that a part of the Regiment including my Colors followed me.
2nd Because the testimony Elicited by the Judge Advocate tending to produce that orders were not given is merely negative of the weakest character. That the witnesses (Officers) who testified that they did not hear the order were biased by interest, because an admission that they heard the order would be a confession that they violated it.
3rd Because the specification is that I abandoned my Regt upon the approach of the Enemy – Whereas the testimony shows that the enemy had been in our front some time previous – and that I left under orders – Consequently no Criminal intent to abandon the Regiment is shown.
4th Because the testimony shows there was no danger in the R.R. Cut, while there was a very heavy fire from the Enemy upon those who left. Therefore no act of cowardice was shown by leaving a secure place to pass through this fire.
III. Because of newly discovered testimony which was not in my possession at the time of trial – to wit;
1st That after I left the R.R. Cut – the Officers in Commd preferred to remain + be taken by the Enemy, rather then to leave + said that if they left the cut, they would all be killed by the Enemy
2nd That Officers ordered their men to remain who started after I gave the orders to fall back.
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Feeling assured that a new trial will be granted upon the grounds stated. I would request that if _____ with your authority you will remand the case for trial before a Court Martial composed of Officers in the field
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Brig Genl Thomas
Jordan
Respectfully submitted
Chief of
Staff
.......... E.F. Best
.......... Col. 23rd Ga.
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Letter from E.F. Best Dec. 29th 1863 to apply for a new trial
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Col. E.F. Best 23rd Ga. Regt.
Charleston, S.C. December 29th 1863
Application for a new Trial
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B 19
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1st __ is allowable for the prosecution to introduce testimony in reply to the new matter brought out by defendant: All the witnesses thus produced were to rebut the evidence, that an order was sent by accused to leave the R.R. Cut, If in addition to this, they travelled over former ground they should have been checked at the time, by the defendant. It is now too late for him to object to their testimony
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2nd The weight of the evidence shows that Col. Best left the whole of his command in a Rail Road Cut while they were engaging the enemy. Had he received the command on which he relies for his defense, He has not proved that he obeyed it Running out of the cut with a few of his men and making the best of his way to the rear, was not carrying out the instructions communicated to him by the courier. It was also his duty to have seen that his men followed him. He seeking his own safety at such a time making no further thought for his command, prove him little qualified for the position he held in the Confederate States Army.
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3rd The newly discovered testimony “referred to in this communication, while it might impeach the credibility of certain witnesses would not affect the guilt of the charge, which is that Col. Best shamefully abandoned his command in the time of danger
The Commanding General therefore can see no reason for granting the petition of the accused for sitting aside the findings sentence of the Court.
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After the Court Martial was overwith, Col. Best wrote four letters, and one wrote by a friend Waren Aiken on Col. Best's behalf, to try to get his sentence reversed, listed below:
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To Brig General Jordan Sep 17th 1863 from Col. E.F. Best
To Brig Genl Thomas Jordan Dec 29th 1863 from Col. E.F. Best
To apply for a new trial Dec. 29th 1863
To President Jefferson Davis June 28th 1864 from Warren Akin
To President & Gentlemen of the Court “after the Trial” from Col. E.F. Best
Letter to President Jefferson Davis June 28th 1864 from Warren Akin on Best's behalf to try to reverse the Courts decision
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Oxford Ga
June 28th 1864
His Excellency
President Davis
Sir:
....... Allow me to call your attention to the case Emory F. Best, late Col of the 23rd Regt Ga. Vol. He has been dismissed from service by the sentence of a Court Martial. I know nothing of the facts: but from what I have been told (but not by Col B) it seems to me that justice requires his restoration to Command.
....... Can an other conclusion be drawn from the facts in this case than that arrived by the Court. May there not be a reasonable doubt as to the correctness of the decision of the Court in this case? If so, is it right? _another good of the country requires it: that a high – minded, honorable young man whose blood has been poured out on the battlefield in defense of his Country should remain disgraced, ruined, by the decision of the Court: Or should he be relieved from the disgrace by being restored to his Command: Please Sir, favorable consider the fact in this case in deciding these questions.
....... I know Col Best well. He studied lan with me, He is of a good family, and up to the time entered the army loved and so far as I know still has a fine moral character. He was severely wounded at Crampton’s Gap and was taken prisoner, and it would require the most conclusive evidence to satisfy me he has acted cowardly or intentionally disobeyed orders.
....... His father is a minister of the Gospel, resides in two miles of me. when we are at home, has five sons and all of them in the service of the Confederate service
I mention these facts not to improperly influence your Judgment, but to let you know that I am acquainted with Col. Best. and if there should be a doubt in your mind as to what the good of the service as well as justice to the man requires you to do in this case, that the been a fit of the doubt may be given to Col B. and that a good and patriotic and much distressed family may be relieved from the great dishonor which they feel has been cast upon them by the decision of the Court.
....... I confess sir, that I feel very solicitous for the restoration of Col. Best. The friendly relations existing between his family and myself and a belief that injustice has been done him, alone causes this Solicitude
I am not aware of the might of the great responsibility now having upon you, and feel most anxious for a successful issue of the struggle as well for you personally or for my Country, But I hope you will find time favorably to consider the case of Col Best. and of consistent with your sense of public duty, restore him to his Command.
With of the highest regard,
I have the honor to be,
Respectfully,
your obt Servt.
Warren Akin
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Letter to the President & Gentlemen of the Court “after the Trial” from Col. E.F. Best
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Mr. President + Gentlemen of the Court
....... In reviewing the lives of public men how seldom do we find one who has not at some period of his life been the object of some malicious aspersions
Even in the hour; of his success, however conscious he may be of the integrity of his own purpose the voice of misconstruction is ever ready to be raised too frequently find many willing ears. More especially is this the case with young men ________ with the hopes of youth. they enter upon worlds crowded stage, unconscious of the cares and toils that beset them – the dangers of malicious and vengeful foes and still less of the jealousy – of seeming friends They launch out eager for the conflict – and, hopeful of success- they fancy that the sunlight of prosperity will ever shine upon their path, but as soon as they begin to catch a little __ ____ of popular applause, their enemies who have scrutinized with watchful eyes, his coward course – raise the voice of calumny against him and awaken him from his golden dream to the sad reality that awaits him. We are surrounded in this world by envious eyes and jealous harts, who having no virtue of their own seek to prey upon the virtues of others – Our every action is subject to the severest scrutiny, the higher the position the greater the envy, they find in every molehill a mountain and fancy that, if they cannot make a ruin of the object of their persecution, they can at least dampen his ardors and blight his hopes for the future
After passing more than twenty three years in the great struggle of life at a time when the flowers of my prosperity was in its summers glory the withering frost of calumny was raised to blight it forever. They have strived to place upon my character a blot that will consign me to everlasting ignominy. They have sought to rob me of that only virtue which makes life dear.
I have been brought before you under charge of the greatest character, the law has imposed the severest penalty upon the perpetrator of either of these crimes, and no one will deny that the punishment is first in proportion to the magnitude of the crime, all other virtues an officer may possess are insignificant , without the courage to execute his purpose, In the soldier it is the highest element of character. In regard to the second the law requires that all inferiors shall strictly obey all lawful commands of their superiors. In the hour of battle the success of their Commander, as well as the fate of a nation hangs upon it. Those who have charged them to me, may exalt in expectation of my ruin, but while I have a clear conscious that I have done my duty, I can calmly await the return of public opinion which I know will surely return to supersede the passionate excitement prejudice created by my enemies. My best interests have been reviled but I have a judge in whose eyes. I know I am innocent.
In receiving these specifications I will be as short and precise as possible
The first – specification charges that during the battle of South Mountain while I was with a detachment supporting a Battery that I was behind rocks while under the fire of the Enemy. The Witnesses to this specification on the part of the prosecution were Capt Patton Co-I Capt Groves Co-B Leiut Worley Co-E and Leiut Pritchet Co-I
The three last named witnesses testified that they saw me behind a rock each however at a different place. though all agree that I was there when the detachment left, that Capt Patton ordered to fall back, Capt Patton testifies that when the detachment left and for some time previous, that I was near him neither Leiut Pritchet Lt Worly nor Capt Groves saw the Commanding Officer of the Battery ______ within fifteen yards of it, and I believe only one of them saw General Hill. It has been established beyond a doubt that Genrl Hill was there; how inconsistent with the character of this gallant officer that he should have seen this detachment on the Mountain without being satisfied of the presence of its Commander. Lt Collins Co-D and others that I introduced testified that when I arrived at the Battery and during the principal part of the time I was with Co-A, except while conversing with the Commander of the Battery that afterwards (Co-I) the statement of Sergt Roberts corroborates the testimony of Capt Patton that I was with the detachment when it left, and that I ordered the Regiment to fall back, I may therefore safely conclude that the Judge Advocate has not made out a case from this specification
From this Specification I turn to the second that during the battle of Sharpsburg I hid my self behind a pile of rocks until ordered up by a Superior Officer. The witness introduced in support of this Specification is so baseless, that it scarcely deserves notice – Leiut Moore of Co-K testifies that at the second halt, I was behind a pile of rocks in rear of the 27th Ga Regt that Col Smith of the twenty seventh Georgia Regt ordered me to get out and push my men forward, that I got up and ordered my men forward – at the same time. Second that private Bishop saw me fall down behind a pile of rocks on the left of the Regiment and did not whether I left or not or whether I remained where the Regt moved from both testified that at the time the Regiment was lying down, While I can see no crime attached to the act if it were true, I affirm that the testimony of both are doubtful, not only verified by their own different statements but also by the testimony of my witnesses , that until after the second halt, I was on the left of the Regt, and Capt Renfro 27th Geo. who testified that Col Smith did not come to the left, until after the second halt and then no further to the left then Capt Renfros position which was between the second and third Companies from the left – that I was not behind the left of his Regt. that his opportunies were such, that he could have seen me and, thus he did see me during the third charge just before halting – that I was with my Regiment doing my duty. I could have introduced more testimony upon this specification which would have shown what my conduct was, it was with held owing to the baseless testimony against me.
Third Specification charges that my regiment was engaging the Enemy near Chancellorsville – that I absented myself from my Command and, could not be found, until the regiment had fallen back two or three hundred yards from the scene of action and stated upon joining my command that I was going to the rear by the shortest route possible I hope I have fully explained to the Court why I absented my self from the first line Lt Smith “actg Adjt” said that it was to consult General officers that were passing – As Welfords Furnace had became a point of some note in connexion with the battle of Chancellorsville, I presume the Court has at least a sufficient - Idea of the place to know the danger to which our troops were exposed, while passing so near the Enemy. Wellfords Furnace was the nearest point to the Enemy, on the road over which our troops passed from the furnace, the road turned off to the left running in the opposite direction from the Enemy’s front. General Stewart advised me to consult if possible every General officer that passed, to let him know of the danger from that point and to order him to notify his troops I would called upon them for support if attacked by any force. who was the proper party to deliver verbal orders to General officers a courier or an officer – What information could a courier give Genl Hill of the condition of things at that point, as no crime seem to attach to me for this act. it having been shown beyond possibility of doubt – that I was present when the Regt first engaged the Enemy that I ordered it from its first position, upon the information of Maj. Ballenger – that the Enemy were passing my flank, I will not lengthen my argument on this point. After the Regt fell back to the furnace; all the witnesses for the defense and most of the witnesses for the prosecution testify that the Regt was formed by me on the right company that skirmishers were deployed and advanced by me, Afterwards the Regt during this time I was in front a part of the time and under the fire of the Enemy After that I ordered some artillery that was passing to take position on the hill and commence firing, that after the artillery moved off I went down in the road below the furnace and with a body of men gave the Enemy a fire which succeeding in checking then advanced upon the road then ordered this part of the regiment to fall back, a portion of the right wing fell back with it, I then ordered Lt Smith “actg Adjt” to bring the Regt back.
All witnesses agree that the Regt about this time fell back to the cut and all agree that I was there with a portion of the Regt Lt Smith and Sergt Covington testify that this was the right of the Regt, the point on which they differ is the distance between the caison and the furnace which varies from seventy five to two hundred yards.
Capt Sharp testifies that it was four hundred yards, but he also testifies that it was two hundred yards from the furnace to the nearest point of woods, although the right of a very small regiment rested at the furnace and the left wing extended in the woods, another part of the prosecutors testimony is that when the Regt advanced to the fence that I was behind a tree. when I questioned him as to the position of the tree, he thought nothing of my being behind it. Why did he not + was it any time for me not to be standing still when the protection of a long wagon train was entrusted to me? furthermore this tree was among a few scattered trees in the open space between the furnace and the woods, Every other witness testified that there were no trees there, on his direct examination he also testified that he ordered the Regt to fall back from this point in his cross examination he said the regt fell back with out orders. the prosecutors and others that I might mention would like to make this Court believe that they were the ruling spirits and that I was a mere cipher. I imagine that the testimony has common ground. Was I absent from the command; if so was it a material absent if absent at all was it justifiable, I will state the connection with this; that the Regt did not engage the Enemy while on the furnace hill, as stated in the Specification. Not a gun was fired according to the witnesses, except the artillery which was ordered to fire by my self and the detachment in the road to the right of the Regt which was under my immediate command
The testimony of all the witnesses taken show that during the whole time I was present with some part of the Regt that when I was absent from the hill.
....... I was commanding a detachment which was the only part of the Regt engaging the Enemy that after I ordered this part of the Regt to fall back. I stopped it but for a moment to attend to getting of a piece of Artillery, finding the tongue broken and, one horse wounded, I sent Lt Smith actg Adjt. to bring the Regt back I have shown that all orders given either by my self or Lieut Smith, my proper aid, that I was not absent from the Regiment at any time should the Court consider any impropriety in my being with that portion of the Regiment, I maintain that the absence was not material and if material it was justifiable
It is furthermore shown that at no time while the Regt engaged the Enemy, was I absent from it
In regard to the third part of the Specification that I was going to the rear I doubt having held such council with any officer it surely does not accord with my former character, to allow subalterns to dictate to me my duty, but if it be true the witnesses all agree that there was a brigade in our front with large support, the wagon train was past danger the rear of which consisted of two or three ambulances was far ahead when we entered the Cut.
What was I to do with no support near. I had but one alternative to go to the rear, I therefore followed in rear of the train on the road over which our troops passed, no one can doubt that it was the only proper movement.
....... The fourth Specification is that I abandoned my regiment after having placed it in the R.R. Cut, I regret that I closed my case without explaining the whole circumstances attending the misfortune while I rest satisfied that I have shown that my Regiment was not abandoned, that it was no act of cowardice to leave a secure place and expose myself for more than two hundred yards to a heavy fire, I wish I had investigated the case further, that the Court might judge who are the guilty parties and who the cowards it is well established that when the courier gave me orders from the left that I was on the right and that he attracted the attention of the Regiment = they were forewarned of the movement The testimony that I received orders to fall back, that they were repeated by Capt Butt Commanding Co-K the second Company from the left, that two of his officers and most of his men obeyed the order.
....... the testimony of Capt Butt Lieut Keown and private Justice is so clear that no one can doubt it both the witnesses for the prosecution and defense testify that when I left (Co-H and Co-K) followed me that I did not go immediately to the rear but walked out about twenty five yards to the left and then turned to the rear. I would now ask had not I every reason to believe the Regt was following me, after hearing Capt Butt repeated the order. seeing the left of the Regt was following me and also the Colors. I started to lead and if the truth could be heard in this court the Regiment started with me but the right of Co-“K” in whose immediate rear was Lt Moore must have preferred to halt behind a large bank perfectly secure than to risk the danger from a heavy fire in passing out I was surprised at the testimony of the witnesses introduced by the Judge Advocate before he closed for the Prosecution Each one seemed anxious to place himself next to Co-K Which was the next Company F, A or G & Each of the three testified that there was the third, The Officer in command of the third Company is responsible for not passing the order to the Right
....... The next point is; did I bring out any of the Regiment with me. Lt Keown says that all of Co. H was brought out except two men, Capt Butt says I brought out two Lieutenants and about fifteen or twenty men. Other witnesses testify that some men left from the right Capt Sharp who surrendered the Regiment in the Cut says he surrendered about one hundred + ninety five in all. It is therefore settled that when I left I took a part of the Regiment with one
....... To abandon a Regiment I must leave it without ordering it to follow. The testimony in that I gave orders + that a part of the command including the Colors obeyed it. You can find me guilty of cowardice from this Specification, Had I been motivated by cowardly motives. I would have remained behind the bank where I knew I was secure instead of passing through a heavy fire to effect my escape
....... In conclusion. I would ask the Court to look at the Spirit of the prosecution. No efforts have been spared to make the way clear for his promotion, he knows full well that while I have the Command of the Regiment he can never secure my recommendation for promotion. My misfortune is not that these charges have been preferred, but that they are preferred by a man with such a record
Well might he have been so sensitive when he imagined I was _____ to it on such a worthless subject I forbear further Command. As to the final issue of these charges I have never entertained a doubt. I am thus ____ given because I have a clear conscious that I have done my duty
....... From the time I left Yorktown to the time these charges were preferred I have the satisfaction of knowing that the Officers under whom I have served have been well satisfied with my conduct While under the Command of Genl D H Hill I received two Promotions the last to my present position after the battle of Sharpsburg , while wounded and a prisoner in the hands of the Enemy. Although the act first specified was committed in his immediate presence. I’ve also the satisfaction of knowing that to this day that gallant + distinguished Officer is not discharged to relinquish his good opinion until a Court shall find me guilty of these charges
....... At the battle of Chancellorsville I was left by Genl Rodes at Welfords Furnace to guard one of the most in important point in our front + to protect the entire wagon train of Jackson’s Corps & afirm my Regiment was taken I was received by Genl Rodes upon his Staff as A. I. Genl in which capacity I served during the battle of Chancellorsville + until I left that Army This gallant Officer had received evidence of my behavior from unbiased minds + was free to express his approval of it.
....... Bias with me a moment longer while I offer to show why these charges were preferred. I entered my Regiment in August 1’ 61 as first Lieut of Co. C Command by Captain Ballenger, now Major of the Regiment; at the organization of the Regiment. although was acquainted I was elected to the majority of it. I fancied I possessed the esteem + confidence of the entire body, with the great majority. Especially the men I have not been mistaken; from the organization of the Regiment up to the time that these charges were preferred. I have not heard of the slightest murmur against me while my predecessors at each in turn gained the Supreme Command were objects of the starts of a few malicious spirits.
........ At Wellfords Furnace, in May last nearly the entire Regiment was taken by the Enemy; while I with a portion escaped. Stung by the mortification of being taken by the insolent foe. They found a common sorrow. Which linked their hearts closer than the dearest ties of friendship What a propitious moment to sow the seed of discard + to create the whirlpool which threatened my predecessors;
....... From this I may reasonably conclude that these charges were prompted by malicious motives, a desire for promotion + to cross the mortification of Capture + their own misconduct
....... I know I have the confidence + goodwill of the men of my Command; it is a treasure with which I would not part + the frequent assurances I have received of their best wishes for my success has been a ray of sunshine to glad me in my darkest hour.
....... I now leave the case in your hands. With I can safely rest my honor
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E.F. Best
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23rd Ga Vols

Confrderate President Jefferson Davis overturned Best's dismissal, but he never returned to the regiment.
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Below is information posted oline about Emory F Best by Dan Roper
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Greetings,
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Emory F. Best was the son of the Rev. Hezekiah Best who bought Forrest Home Plantation in Cass (now Bartow County) Georgia around 1856. This line of the Best family originated in Virginia and Maryland.
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Hezekiah had a number of sons including Emory and Robert, and a daughter, Louisa.
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Emory Best graduated from Lebanon College (Tenn.) circa 1860 and returned to northwest Georgia where he studied law under Warren Akin (Cassville). Emory moved to nearby Rome, GA in 1860. He joined the Floyd Springs Guards and was elected second in command. Shortly thereafter, when the Guards were mustered as Company C, 23rd Georgia Infantry Regiment at Camp McDonald, GA, Emory was elected major of the regiment. The 23rd went to VA in November of 1861, serving in the Yorktown area and fighting in the summer 1861 battles east of Richmond. At Antietam, the regiment's commanding officer was killed in action and Emory succeeded to the command, only to be wounded himself and then captured. He was paroled, then exchanged. He was promoted to colonel in late 1862. He led the regiment in battle at Chancellorsville. He apparently performed badly. Most of the regiment was captured. Several weeks later, charges were brought against Best. He was court martialled (found guilty on one of about five specifications of wrong doing) in December 1863 in Charleston, and relieved of his duties. He spent the remainder of the war trying to get a pardon, apparently unsuccessfully. After the war, he went to Macon, GA where he married a lady named Hill (who had children, but they had none of their own) and became city judge. In the 1880s, he was appointed to the Interior Dept. in Washington, DC where he spent the remainder of his life, dying in 1912. He is buried in Rose Hill Cemetery, Macon, GA.
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Emory's brother, Robert Best, owned Grassdale Plantation near Cartersville for many years. He had a sizeable family, some of which ended up in Rome, GA. Waring and Hugh Best lived in Rome during the teens and 1920s (and perhaps more than that) and one of them operated Best Livery Stable (then Best Car Company) on Broad Street for many years.
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Eventually, the Zachariah Best line in northwest Georgia totally disappeared. A descendant, Hugh Best, lives today in Pennsylvania, and another, Emory Fred Best, recently died in La Jolla, California (where he had retired from the automobile business).
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Sincerely,
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Dan Roper
GA
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