The Confederacy was already dead by early April 1865.  With Robert E. Lee’s defeat at Sailor’s Creek, fighting in the Eastern Theater came to an end.  Fighting did continue in Alabama with Nathan Bedford Forrest struggling against James Wilson’s cavalry, and in North Carolina, Sherman continued to pursue what remained of Johnson’s army.  Far from Virginia, the Carolinas, or Alabama, two senior Confederate officers were engaged in their own war.

John Austin Wharton (1828-1865) was a native of Tennessee, the only child of Sarah and William H. Wharton.  The Wharton family moved to Brazoria County, Texas when John was still in infancy.  While attending South Carolina College in 1846, Wharton met and later married Eliza Penelope Johnson, whose father was David Johnson, Governor of South Carolina.  Upon graduation in 1850, Wharton returned to Texas to study law.  Then, after admission to the Texas Bar, he began his law practice in Brazoria with an affiliation with Clinton Terry, the brother of Benjamin Franklin Terry (of Terry’s Texas Rangers fame).  Before the Civil War, Wharton was a wealthy plantation owner.

Wharton enlisted in the Eighth Texas Cavalry Regiment and was elected to serve as a captain of Company B.  After the death of Colonel Terry and Lieutenant Colonel Thomas S. Lubbock, command of the regiment passed to Wharton, who fought with great distinction at Shiloh, where he was wounded.  Wharton additionally served under Braxton Bragg during the 1862 invasion of eastern Kentucky and was advanced to Brigadier General on 18 November 1862.  Wharton was again wounded at Murfreesboro, Tennessee, distinguished himself further at Chickamauga, and was advanced to Major General.  In February 1864, the Confederacy assigned Wharton to the Trans-Mississippi Department in Louisiana, assigned to command the cavalry under Lieutenant General Richard Taylor during the Red River Campaign.

Colonel George Wythe Baylor (1832-1916) was the son of John Walker Baylor (1813-36)[1], born at Fort Gibson, Cherokee Nation.  From these humble beginnings, Baylor was a well-respected Indian Fighter remembered for tracking down a war party of hostile Indians who were responsible for committing atrocities against settlers on Paint Creek in Parker County.  Baylor killed and then scalped nine of the war party.  At the beginning of the Civil War, Baylor is alleged to have raised the first Confederate flag in Austin.

George Baylor was commissioned a first lieutenant in Company H, 2nd Texas Cavalry in the Arizona Brigade[2], Lieutenant Colonel John R. Baylor, commanding.  George served as regimental adjutant before accepting appointment as a senior aide-de-camp to General Albert Sidney Johnson in September 1861.  After Johnson’s death at Shiloh on 6 April 1862, Baylor returned to Texas to assume command of the Second Battalion of Brigadier General Henry Hopkins Sibley’s[3] New Mexico Brigade, which later merged with the 2nd Texas Cavalry.  Baylor advanced to command the 2nd Texas during the Red River campaign in 1864 and was commended for gallantry at the battles of Mansfield and Pleasant Hill.

George Baylor was a scrapper who loved a good fight.  By 1865, however, dysentery and combat fatigue had reduced him to gaunt stature.  Illness did not quiet his tongue, however.  Baylor and Wharton did not have a close association.  They were as different as night and day.  The one thing they did have in common was an intense dislike for one another.  Baylor, the colonel who had pulled himself up by his bootstraps, and Wharton who was born into wealth and social position.  Wharton may have regarded Baylor an uncouth bore; Baylor may have looked upon Wharton as a pompous ass.

Both men served under Major General John B. Magruder.  When Magruder reorganized his department, Baylor’s regiment was placed under the overall command of Major General Wharton.  When Magruder tasked Wharton to provide dismounted troops to form a new infantry division, Wharton passed the requirement along to Baylor.  It was a decision that diminished the effectiveness of Baylor’s regiment as well as his stature as a combat-tested regimental commander.  In Baylor’s mind, there was a principle at stake in this situation.  Baylor believed that Wharton’s decision was intended as an insult, that Wharton rewarded cronies, and had not acted fairly and impartially toward him.  There was some justification for Baylor’s thinking.  Wharton was an aristocrat who often spoke with profanity, treated subordinates disrespectfully, and tended to physically strike those who offended him.

On 6 April, both Wharton and Baylor were in Houston.  Baylor hated the idea of having to serve under Wharton.  He naturally had no recourse, but seethed about having to do so.  Baylor was an unhappy man and perfectly willing to moan about Wharton to anyone who might listen.  On this morning, he found an opportunity to complain to Brigadier General Walter P. Lane.  Baylor hoped that Lane would sympathize and offer help getting Wharton’s order countermanded.  Lane, however, wisely refused to become involved in the dispute.

Later in the day, Colonel Baylor was walking with Captain R. H. E. Sorrelle when he was spotted by Wharton, who was riding in a buggy with Brigadier General James E. Harrison.  Wharton stopped the buggy to berate Baylor about being away from his command.  Baylor replied, “I am needed here to keep my men from deserting rather than to serve in a dismounted capacity.  I have been imposed upon you, General Wharton, and I am determined to see General Magruder about this matter.”

As Baylor continued to vent his feelings, his voice became more strained.  “This thing has been going on for some time, and I don’t think that my right has been awarded to me….The only time that I ever asked a favor of you was when my wife was sick, and I asked an extension of leave….” The implication was unclear … was Baylor asking Wharton to relieve him of the burden of transferring men from his regiment, as a favor, or was he complaining because of Wharton’s lack of courtesy?

General Wharton answered, “Who has done you injustice?”

“You, sir,” Baylor said.  “You have always borne upon me,” and he then proceeded to tick off several instances as evidence.

Both men were now angry.  After hearing Baylor out, Wharton called him a “damned liar,” to which Baylor fired back: “You’re a demagogue! You rank me now, but the day is coming when we will be on equal grounds.”

Wharton snorted dismissively.

Baylor pressed, “You are a liar and a demagogue,” and then stepped forward with raised hand as if to strike Wharton.  Before he could do anything, however, an alarmed Harrison urged the horse forward.

“Stop the buggy, sir!” Wharton ordered.  He then informed Baylor that he was under arrest and ordered him to report to Wharton’s headquarters at Hempstead.  Immediately.

Baylor answered, “General, I will go to see Gen. Magruder before I leave to have justice done me.”

Wharton and Harrison then drove off, ending the immediate confrontation.  Neither Wharton or Baylor was satisfied with how things had ended.

Colonel Baylor and Captain Sorrelle went directly to Magruder’s headquarters on the second floor of Fannin House.  Informed that the general was not there, Baylor told Magruder’s adjutant, Colonel Edward P. Turner, “I have been called a liar and placed under arrest.”  He then stalked out of the room in search of Magruder.

After stewing over the morning’s events, Wharton, still accompanied by Harrison, also proceeded to Fannin House to see Magruder and “settle things.” Upon entering the hotel, Wharton inquired whether Baylor was upstairs. When the answer came back in the affirmative, he proceeded up the stairs. Wharton and Harrison went to Magruder’s private rooms and entered. Magruder was not there, but Baylor was, sitting on the side of the bed.

Wharton, a cigar clenched in his teeth, said to him, “Colonel Baylor, you have insulted me most grossly this morning.”  Brigadier General Harrison tried to place himself between the two angry men, but one or the other kept shoving him out of the way.   At this time thoroughly enraged, Wharton struck Baylor in the face with a clenched fist.  Baylor responded by drawing his Navy revolver and shooting the unarmed Wharton at point-blank range.  Wharton died instantly.

Colonel Baylor promptly surrendered to the provost marshal.

Subsequently, Magruder returned Baylor to duty.  Baylor never attempted to flee or avoid responsibility for shooting —or, as some might say— executing his superior officer.  Wharton’s body was transported to Austin for burial.

The Confederate States Army never filed charges against Colonel Baylor.  The Confederacy already had its hands full without having to deal with the Baylor-Wharton episode.  Justice would have to wait.  After the war, there was also a question about jurisdiction.  Since the Confederate States of America no longer existed, since the Confederate States Army no longer existed, the matter of Wharton’s murder would have to find justice in the civil court system.

The case of State of Texas v. George W. Baylor convened in Houston’s District Court on 16 May 1868.  According to historic researchers, the defense/prosecution teams looked more like a graduating class of the US Military Academy than a roster of court officers.  The prosecutor was “General” Jack Harris, but there is no record of such a general in either the Union or Confederate Army.  “Colonel” Hiram B. Waller assisted Harris, but no one ever heard of a colonel by that name, either.  The courtroom resembled an old soldier’s reunion with men wearing their Confederate uniforms and medals.

Defending George Baylor was a Galveston County justice of the peace named George Mason.  Assisting Mason was George Goldthwaite, an Austin judge, and James Wilson Henderson, who served as an interim governor of Texas in 1853.  What all these men had in common was their politics (they were all Democrats), and they all maintained their loyalty to the Confederacy.

The trial established early on that the two men had demonstrated disdain for one another.  Apparently, Baylor was not alone in harboring ill-feelings toward Wharton.  Isaac Jones testified that he heard another colonel say that he wanted to shoot Wharton, and heard Baylor add to it, “Give me half a chance, and I’ll kill him myself.”  Baylor’s attorney dismissed the remark as merely careless blather, designed to harm no one.

Perhaps … although the remark does carry along with it the aroma of premeditation.

Trial attorneys believed it was important to establish whether Wharton had struck Baylor with his fist, or merely slapped him with an open hand.  To most of the men present in the courtroom, it didn’t matter.  No Southern gentleman would accept being assaulted by another no matter how minor.  The prosecution attempted to show that Baylor was never in any danger of serious injury.  Again, it didn’t matter to most spectators.  Baylor’s attorneys stressed that both men had used intemperate language and that in terms of physical size, Wharton was bigger than Baylor.  Moreover, they argued, it was customary for Confederate officers to wear arms … and any man who struck another should expect to have the insult answered immediately, with arms if available.

During closing arguments, Mr. Waller saw fit to suggest that it would not surprise him if former-Governor Henderson, a defense attorney, had not somehow bribed the jury.  Henderson stood to protest the remark, but Judge Sabine quickly admonished the prosecutor for making such a suggestion.  Baylor’s legal team offered a forcible and convincing argument, citing relevant precedents and offer quotations from case law.  Closing arguments ended at 9:15 p.m.

When the jury retired for deliberations, there was no question that George Baylor was a genuine hero of Texas and the Confederacy; in 1868, such men could be forgiven almost anything.  Beyond this, there was a generally-held belief that Wharton had no business confronting Baylor further having already placed him under arrest.  On the afternoon of 19 May, the jury foreman announced that the jury was unable to reach a decision.  Baylor posted $25,000 bond and remained free.

The State of Texas retried the case in December 1868 with the same legal teams in place.  A new question emerged, however: had the original trial alleged murder, or manslaughter?  No one could remember.  Judge Sabine decided that the charge had been for murder.  With this instruction, the new jury deliberated for 30 minutes before delivering a “not guilty” verdict.

The trial imposed no indignity on George Baylor who subsequently lived a credible public life, served with distinction as a Texas Ranger, and served in several state-wide offices before passing away in 1916.  General Wharton, on the other hand …

Endnotes:

[1] Slightly wounded during the Battle of San Jacinto, Baylor dismissed the wound as minor, but weeks later he died from complications of the wound that was never treated.

[2] The Arizona Brigade consisted of Texan volunteers with previous service in the southwest.  Its purpose was to retake the southwestern territories for the Confederacy.

[3]  Sibley, who resigned his US Army commission as a major to accept appointment as a brigadier general in the Confederate States Army, was incompetent, a coward, and a drunk.  After the Civil War, he fled the United States to serve in the Egyptian Army as a brigadier general.