Transcript 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.
13
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 Lupton1 Regt Dragoons |
| Asst Surgeon C S Tripler2 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
14
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
15
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
16
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 accordingly withdrew his party & advanced toward the garrison.
17
Bvt 2d Lieut S K Cobb3 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
18
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.
The evidence on the part of the prosecution being closed.
Sergeant S Fiton of Company “I” 3d Regt
19
of Infantry a witness for the prisoner being duly sworn
Sergeant John Waterhouse of Company “I” 3d Ret of Infantry a witness for the prisoner being duly sworn.
20
21
Lt Col Vose5 3d Regt of Infantry a witness for the prisoner being duly sworn.
22
Capt James Dean6 of the 3d Regt of Infantry, a witness for the Prisoner being duly sworn
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-
23
self aggrieved & for want 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.
24
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 alteration 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
25
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.
26
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 adduced7, 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
27
The foregoing sentence is approved
E. P. Gaines
The Court adjourned to meet tomorrow at 9 O´Clock A.M.
7
Selected notes from the transcript of the complete Court Martial
From the trial of Sergeant Thomas S. Smith of Light Company “A”, 3d Infantry.