Perhaps the only surprise in this case is that the soldier on trial was found completely innocent; presumably this was because there was no direct evidence that he had committed a crime, even though the circumstantial evidence weighed strongly against him. Clearly the commander in chief was of the same opinion, because he did not approve of the sentence even though he opted to confirm it.
At a General Court Martial held at the Head of Elk, in the Province of Maryland, on Friday the 29th of August 1777, by Virtue of a Warrant, bearing date the same day, from His Excellency Sir William Howe, Knight of the most Honourable order of the Bath, General and Commander in Chief of all His Majesty’s Forces within the Colonies, laying on the Atlantic Ocean, from Nova Scotia to West Florida inclusive &c, &c, &c.
Lieut. Col. William Walcot, 5th Foot
Lieut. Col. Jas. Ogilvie, 4th Foot
Capt. John Swint. Dyer Coldstream Guards
Capt. Thos. Thomlinson, 5th Foot
Capt. John Barker, 10th Foot
Capt. John Westropp, 5th Foot
Capt. Thos. Gibbings, 23d Foot
Lieut. Myrick Shaw, 4th Foot
Lieut. William Cox, 5th Foot
Lieut. John Browne, 23d Foot
Ensign Florintius Boscawen 3d F. Guards
Ensign Robert Haddin 5th Foot
The President, Members and Judge Advocate being duly sworn.
William Johnstone private soldier in His Majesty’s 43d Regiment of Foot was brought prisoner before the Court and accused of plundering, & the following Witnesses were examined in support of the Charge viz:
Lieutenant Colonel Robert Abercrombie of His Majesty’s 37th Regt of Foot, being duly sworn, deposed that on the Morning of the 27th Instant he met the prisoner going towards his out post, having in his hand a pretty large bundle, wrapped up in a blue and white calico Curtain, that he made him open it, and found it to contain some things of the same nature as the calico, he thinks that there was a Woman’s Gown amongst them, but with regard to this circumstance he cannot be positive; that he asked him whither he was going and he replied that he was going to this Battalion, meaning the 2d Battalion of Light Infantry, but he had then passed the Battalion several Miles, and was going the contrary way, that he afterwards asked him where he had got that Bundle of Goods and he answered from a Grenadier, upon which he ordered him to be confined; that about two hours afterwards he received a Letter from Major Cuyler, informing him that it was the General’s Order that he should endeavour to find out a soldier of the Light Infantry, who had robbed a Countryman of the name of Taylor (and by whom the Note was sent) that upon showing him the bundle, the Prisoner had been found in possession of, he claimed part of the things it contained, particularly the blue and white Calico curtain, and the Deponent then sent him to Head Quarters with the Countryman.
Q. Did the Countryman say that the Prisoner was the man, who had taken the things from him?
A. He did not.
Thomas Mudd Corporal in the 17th Regt of Foot, being duly sworn deposed that he commanded the Guard when the prisoner was put in Confinement, & he then had a bundle, in which were a blue and white Calico Curtain, a Woman’s gown, a small piece of Cloth, of the same colour as the Curtain, and a small white earthen pot, containing butter; and he heard a Countryman, upon being shewn these different Articles, claim all of them as his property, except the Woman’s gown, which he said he could not with certainty say, belonged to him.
Q. Did he hear the Countryman say that the Prisoner had taken those things from him?
A. No, he said that he did not know the Prisoner, nor did he know the man that took them from him.
Q. Did the Countryman say whether he was in his own house at the time the things were taken away?
A. He did not.
The Prisoner being then put upon his defence, said that on the morning Lieutenant Colonel Abercrombie met him, he had been to the rear of the Battalion he belonged to, in order to see an acquaintance, and on returning back among a Party of Grenadiers whom he met, on their return from a foraging party, there was one, who had a bundle, and calling to him (the Prisoner) he said, Light Infantry man will you take this. That upon asking him what it was, he answered that it was something which would be of service to him when he went to Camp, that soon after getting the bundle, he met Lieut. Col. Abercrombie, who examined him, and asked him where he was going, and he answered to his Battalion; that he was then rather in the rear of his Battalion, being between the first and second Battalion of Light Infantry, and had he not been stopped by Lieut. Colonel Abercrombie, he should have gone to this Battalion by a Lane which turned off to the left hand and led to the Battalion.
The Court having considered the evidence against the Prisoner William Johnstone together with what he had to offer in his Defence, is of Opinion that he is not guilty of the crime laid to his charge, & doth therefore acquit him.