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The Court Martial of Lyman F. Rounds


In the 1832 Annual Report for the 3d Regiment of Infantry, Col Leavenworth made the following comment: As there is no adequate penalty for the crime of Desertion, it is strange that the number of desertions in not greater. — 31 December 1832Transcript of pages 13 – 27 of the General Court Martial held at Fort Towson May 15 – 31, 1833 consisting of the trials of Sergeant Thomas S. Smith of Light Company A, 3d Infantry, Corporal Lyman F. Rounds of Light Company “A” 3d Infantry, private Samuel S. Harvey of Light company “A” 3d Infantry, private James M´Kelvie of Light Company “A” 3d Infantry and private Henry Grant of “G” Company 3d Infantry. Each were charged with Desertion and Mutiny.


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Further proceedings of a general Court Martial convened at Fort Towson by virtue of department order no 10 dated Memphis Tenn April 24th 1833 and detachment 3d Infantry order no 36 dated Fort Towson May 25th 1833 as above recorded

May 28th 1833

The Court met pursuant to adjournment.

Present

 
Bvt Lt Col S Burbank 7th Inf President
Capt J S Nelson 3d Inf [Co G Commander]
Capt J Dean 3d Inf [Co A Commander]
1st Lt E B Alexander 3d Inf [Co G; ACS]
2d Lt A G Baldwin 3d Inf [Co G]
Members Capt J B Clark 3d Inf [Co I Commander]
1st Lt J R Stephenson 7th Inf
2d Lt C L C Alison 3d Inf [Co C; AQM]
2d Lt L P Lupton Regt Dragoons Lancaster Platt Lupton, Co C; namesake of Fort Lupton, Colorado
Asst Surgeon C S Charles Stuart Tripler (January 19, 1806-October 20, 1866) Tripler USA Special Judge Advocate

The court being duly sworn in the presence of the prisoner proceeded to the trial of Corporal Lyman F Rounds Lt Company “A” 3d Regt of Infantry who being previously asked if he had any objections to the members named in the general or attachment orders & replying in the negative was arraigned on the following charges and specifications preferred against him by Asst Surgeon C S Tripler USA Special Judge Advocate ——

Charge 1st Desertion

Specification – In this, that the then said

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Corporal Lyman F Rounds of Lt Company “A” 3d Regt of Infantry did desert the Service of the United States at Fort Towson on or about the third day of March 1833.

Charge 2d Mutiny

Specification – In this, that he the said Corporal Lyman F Rounds of Lt Company “A” 3d Regt of Infantry did positively refuse to return to the garrison & service of the United States at Fort Towson, when repeatedly ordered so to do by Lieut. S K Cobb 3d Regt of Infantry, and did resist and join with others in resisting with fire arms the orders of Lieut S K Cobb 3d Regiment of Infantry. This on or about the 11th day of March 1833 & about 15 miles from Fort Towson on the south side of Red River.

(Signed) Chs S Tripler Asst Surgn USA
Special Judge Advocate

To which charges & specifications the prisoner pleaded “Not Guilty ——

Sergeant H C Day of Lt Comp “A” 3d Infantry a witness for the prosecution being duly sworn says

“I was orderly Sergeant of Company “A” and was knowing to his having deserted about the time specified in the first charge. I was one of the party sent in pursuit of him. I returned without hearing from the prisoner. In the 10th day of the same month, I was ordered in pursuit of deserters from the garrison, under command of

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Lieut Cobb, we tasilled 15 or 16 miles from Fort Towson on the south side of Red River and overtook the prisoners we were in pursuit of, amongst them we found the prisoner. I was present and heard Lieut. Cobb hail the deserters and order them to lay down their arms & surrender. The prisoner I recognized amongst the rest. The deserters apparently when we came up with them were doing cooking breakfast or dinner. When Lt Cobb hailed the prisoners, they all jumped for their arms each deserter selecting his own. Upon Lt Cobb´s observing that movement, he gave his party orders to fire on them. We did so. The deserters returned the fire. The two fires of the different parties were so near together, you could hardly distinguish them. After the second fire was made some of the deserters called to Lieut Cobb, calling him by name and requested the firing might cease. If I mistake not, Lieut Cobb then again ordered the party to lay down their arms & surrender. Some of the party observed they would not they would sooner die first, but added they wished a parley of Lieut Cobb stating at the same time that some one of their party was badly wounded in the arm. Lt Cobb accordingly advanced alone. I think there were three of the deserters advanced to meet him. I recalled seeing the prisoner for one of them & as near as I could understand the subject

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of the conversation was, that they would return to the garrison on condition that Lt Cobb would withdraw his party stating at the same time, that it would be no use to try to force them to return as their party (the deserters) was much stronger than Lieut Cobb´s party being nearly two to one or words to that account, and any attempts to force them to return would be a signal for a recommencement of hostilities or some thing to that account. Lieut Cobb according withdrew his party & advanced toward the garrison.
Ques by the Court
Did you hear Lieut Cobb order the prisoner to return to the garrison?
Ans
Not the prisoner individually, but all of them, they were all together.
Ques by the Court
Did you hear Lieut Cobb order them more than once?
Ans
Yes, repeatedly.
Ques by the Court
Were Lieut Cobb´s orders resisted?
Ans
They were resisted by the whole party.
Ques by the Court
Was the prisoner joined with others in resisting Lt Cobb´s orders?
Ans
Yes –
By the Court
State how Lieut Cobb´s orders were resisted.
Ans
Lieut Cobb ordered the prisoners to

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surrender – the Prisoner & two or three others were apparently at the head of the party what they said was immediately assented to by the balance of the party. After Lieut Cobb found his orders were of no avail, he entreated with the men to return, they positively refused one & all the prisoner with the rest.
Ques by the Prisoner
So you know positively that we fired?
Ans
There were pieces discharged from the party of deserters. I distinctly hard a ball or a shot whistle over my head. I also saw when there was another shot struck in a tree that Lieut Lupton was behind who was on the right of me.
Ques by the Prisoner
Did you hear a positive order given that we should return?
Ans
I did, by Lieut Cobb.

Bvt 2d Lieut S K CobbSamuel Kelly Cobb, Company G; died January 11, 1834 in New Orleans, Louisiana at age twenty-eight. 3d Regt of Infantry a witness for the prosecution being duly sworn says

“On or about the 10th of March 1833 I was sent from this post in pursuit of deserters. When I came up to the deserters I found the prisoner among them, though he was not one that I went after. The prisoner is one of those with whom I first conversed when I went up to the party. He first refused to surrender when I ordered him & afterwards told me he would not come in with me but said he

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would come in by himself if I would withdraw my party. He did come in without giving me any further trouble. The firing commenced by my order and was returned by the party of which the prisoner was one, but I cannot say that any particular individual fired.
Ques by the Court
Will you state if the prisoner was joined with others in resisting?
Ans
The prisoner was joined by others and appeared to have considerable influence over the other men in resisting my orders. The prisoner appeared to be determined and cool & collected.
Ques by the Prisoner
Did you give a positive order for us to return?
Ans
I did; I stated to the prisoner personally that I was sent after him, that it was my business to carry him back.
Ques by the Court
Did you repeat your order to the prisoner to return?
Ans
I do not recollect repeating personally to the prisoner the order to return. I was in conversation with them some minutes and I presume they understood the object of my conversation – it was to get them into the garrison.

The evidence on the part of the prosecution being closed.

Sergeant S Fiton of Company “I” 3d Regt

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of Infantry a witness for the prisoner being duly sworn

Ques by the Prisoner
Did you hear Lieut Cobb give an order to return?
Ans
I did not hear Lt Cobb give an order for them to return.
Ques by the Prisoner
Did you have as good a chance to hear an order, if given, as Sergeant Day?
Ans
I should think I had – we were very close together.
Ques by the Prisoner
Did you hear any conversation between Lt Cobb & the party, and if so state what it was?
Ans
I heard Lieut Cobb tell them they had better come in with the command; they said they would not come in with the command but would follow immediately after them.
Ques by the Court
Were you one of the party sent in pursuit of the deserters?
Ans
I was.

Sergeant John Waterhouse of Company “I” 3d Ret of Infantry a witness for the prisoner being duly sworn.

Ques by the Prisoner
Did I not tell you I would come in, of no one else did?
Ans
Yes.
Ques by the Prisoner
Did you see the party I was with make any resistance?
Ans
When Lieut Cobb ordered the party to

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surrender, I saw the men take their guns select theirs; I supposed they calculated to fight.
Ques by the Prisoner
Do you know there were any shots from the party I was with?
Ans
I do not, but it was generally believed there was.
Ques by the Prisoner
Did you hear Lieut Cobb give a positive order to return?
Ans
I did not.
Ques by the Prisoner
Had you the same chance to hear that Sergeant Day had?
Ans
I thought I had – I stood very near him.
Ques by the Court
At what time did the prisoner tell you he would come in even if no one else did?
Ans
After the parties had met I called him a one side & told him. I thought he had better come in. He said he would, if the rest did not.
Ques by the Court
Was Lt Cobb´s order to surrender given before the parties met?
Ans
It was before.
Ques by the Court
Were you one of the party sent in pursuit of the deserters?
Ans
Yes.
Ques by the Court
What orders if any did you hear Lt Cobb give at the time?
Ans
I did not hear him give any order with the exception of ordering them to surrender.

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Ques by the Court
Was that order repeated?
Ans
Yes two or three times.
Ques by the Court
Did you not see a pock mark of a ball upon one of the trees which could not have come from any other direction than from the party of deserters?
Ans
No.
Ques by the Prisoner
Was Lieut Cobb´s party in disguise?
Ans
They were dressed in Citizen´s clothes with the exception of one man, some with hand- kerchief on their heads.
Ques by the Court
How was that one man dressed?
Ans
He had on a soldier´s roundabout. (waist-length jacket with no tails)
Ques by the Court
How was Lieut Cobb dressed?
Ans
With an overcoat & a seal skin cap – other clothing I do not recollect.
Ques by the Court
Was not that the dress Lieut Cobb usually wore about the garrison?
Ans
I had been in the habit of seeing him with that dress on.

Lt Col VoseJosiah Howe Vose, Commanding Post 3d Regt of Infantry a witness for the prisoner being duly sworn.

Ques by the Prisoner
Will you state what my character has been since I have been at the post so far as you have known?
Ans
I should say generally speaking up to the time of his desertion it was good so

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far as I have had opportunity partially to observe his conduct.

Capt James DeanCompany A Commander — Resigned from the Army 15th November 1836 of the 3d Regt of Infantry, a witness for the Prisoner being duly sworn

Ques by the Prisoner
Will you state to the Court what character I bore from the time I joined the company?
Ans
The prisoner joined my company from a detachment of Recruits, I think in the spring of 1830. From that time up to a short time previous to his desertion his conduct & character so far as things came within my knowledge, was good. I always had a great deal of confidence in his integrity as a soldier and do not recollect he ever gave cause to find any fault with him.

The evidence on the part of the prisoner having been heard & the prisoner being asked if he was ready to proceed said the following

Defense

Mr. President & Gentlemen of the Court –

Feeling the greatest assurance of receiving the strictest justice from this Hon. Body, I will venture as briefly as possible to state the facts as they actually transpired. For circumstances that happened & thinking my-

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self aggrieved & for ____ of discretion, I absented myself from the post.

But considering my voluntary return to this post, which return was voluntary, I should not think it could be called desertion. If the President & members of the Court consider it as such I have only to say that men guilty of the same crime & ___ for the second act, have been reliable. If my being a non-commissioned officer should seem to aggravate the crime, I would say furthermore that there has been two of the same released –

Having served more than three years faith-fully & honorably two of which I was a non-commissioned officer, it would naturally be supposed it would ___ in my favor rather than against me.

Concerning the charge of mutiny I hope to satisfy the Court that I am not guilty of the charge. I would state to the Court that I heard no such order given, as to return, it was my intention to have returned before the command came up with us and instead of refusing to come back as the charge states that I did, I told Lieut Cobb that I was willing to come to the garrison, but not willing to come in with the command. Lt Cobb said he would withdraw his party if we would commit to come in by ourselves, which we did accordingly.

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Lt Cobb & Lieut Lupton also said they would use their influence to have us returned to duty – which no doubt they did.

But how a charge of Mutiny can be brought against a person for disobedience of orders when there was no order given is more than I am able to discover: There being an altercation in the charge of mutiny I consider it my duty to vindicate the charge as far as possible. The Court will give me credit when I say that Lieut Cobb did not give an order that we should return. He said that it was his opinion that it would be better for us to return. For my own part I was determined to come back be the consequences be what the might; and it is my opinion, no one took up arms to withstand any order.

When the command came up with us they were in disguise & their first approach was made known to us by their yells more like a savage than a white man and a volley of rifle balls. Can it be supposed by any rational person that a man will stand openly to be shot as when he could secure himself behind any thing? I cannot conceive how any man could have the conscience to shoot another in cool blood, as there was a

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man badly wounded by some one of Lieut Cobb´s party. Such an act as that must cause a commotion in the spirit of a man if he has any in him. But wherein the charge states that I did resist with fire arms the order of Lieut S K Cobb 3d Regt of Infantry, it is incorrect. How can it be made to appear that an order is disobeyed when there is no order given? And such is the case, there being no order given then was of course no order disobeyed. Again, would it be supposed that a man or men, taken by surprise would leave arms if they had any, and run the risk of losing personal property and perhaps his life with it. But in this case it does not appear that it was to show resistance that they selected this – but for the express purpose of defending themselves (or more properly speaking ourselves) from the balls of the command. It was told to Lieut Cobb that there was not a man present that wanted to injure him or any one with him. But instead of refusing to come back to the garrison, they all (fourteen in number) said with one accord, that they would return & they did likewise return forthwith.

(Signed) Lyman F Rounds
Corp “A” Compy 3d Inf.

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The court being ordered to be cleared and the whole of the proceedings read over to the court by the judge advocate the following sentence was pronounced:

Sentence

The Court after mature deliberation on the testimony adducedadduced: to bring forward or offer in argument or evidence, find the prisoner Corporal Lyman F Rounds of Lt Company “A” 3d Regiment of Infantry as follows

Guilty of the specification of the 1st Charge
Guilty of the first Charge
Guilty of the specification of the 2d Charge
Guilty of the second charge

And do sentence him – To be reduced to the rank of a private sentinel, to forfeit all pay or clothing which may be due him except so much in amount as was due the Sutler & Laundress at the time of his desertion & such fatigue clothing as the Commanding Officer may deem necessary – To be confined to the cells on bread & water for 90 (ninety) days – To be kept at hard labor with a chain four (4) feet long attached to his leg – To wear an iron yoke weighing eight (8) pounds with three (3) prongs eight (8) inches long around his neck, until the 1st June 1834 and then to have his head and eyebrows shaved & be drummed out of service & To be confined to the guard house when not at labor.

Chs Tripler A.S.U.S.A.
Special Judge Advocate

S Burbank
Bt Lt Col 7th Infy
President of the Court

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The foregoing sentence is approved
E. P. Gaines

The Court adjourned to meet tomorrow at 9 O´Clock A.M.