A General Court Martial is hereby
appointed to assemble at these Headquarters on
the 23rd day of October 1863 at 10 O'Clock A.M. or as
soon thereafter as practical, for the trial
of such prisoners as may be brought it.
By Command of Brig. Gen. William P. Carlin
Jast Sorine
Ma V. A.A.G.
Headquarters 1st Division 14th Army Corps
Chattanooga, Tenn Oct 27, 1863
9 O'Clock A.M.
Court met pursuant to adjourn-
ment. Present:
Colonel Marion Cartright Taylor 15th Kentucky Volunteers Infantry
Capt. Peachy A. Garriot 19th Illinois Volunteers Infantry
Capt. Benjamin F. Barger 33rd Ohio Volunteer Infantry
Capt. Charles L. Easum 15th Kentucky Volunteers Infantry
Capt. George W. Windell 38th Indiana Volunteers Infantry
Capt. James H. Burk 37th Indiana Volunteers Infantry
Capt. Robert H. McCormick 78th Pennsylvania Volunteers Infantry
1 Lt. Henry O. Montague 1st Wisconsin Volunteers Infantry
Capt. Eugene Cary 1st Wisconsin Volunteers Infantry, Judge Advocate
and the accused Private John Yates com-
pany "K" 38th Indiana Volunteers. Absent 1st Lt. Edward Bornemann.
The Judge Advocate then read aloud the orders
convening the Court and asked the accused
Private John Yates Company "K" 38th Ind-
iana Volunteers if he had any objection to
any members named therein to which he
replied in the negative.
The Court was then duly sworn by the Judge
Advocate and the Judge Advocate was duly sworn
by the preceding officer of the Court in the pres-
ence of the accused.
The charges and specifications then
read aloud by the Judge Advocate as follows:
CHARGE--DESERTION
SPECIFICATION-- In this: that he, John Yates, Private,
of Company "K" 38th Indiana Vol-
unteers Infantry, did desert the service of the
United States from Louisville in the State
of Kentucky on or about the 1st day of Octo-
ber 1862 and did remain absent therefrom
without authority until on or about the 24th
day of August 1863 when he was returned
to his Regiment under arrest.
The Judge Advocate addressed the accusedJames G. Land, a witness for the prosecution
Private John Yates Company "K" 38th Regiment
Indiana Volunteers Infantry as follows,
You have now head read the charges and
specifications preferred against you how
say you? Guilty or Not Guilty?
To which the accused pleaded as follows:
TO THE SPECIFICATION--Not Guilty
TO THE CHARGE--Not Guilty
Question--State all you know in reference to
charge of desertion brought against the pris-
ner Private John Yates of your Company?
Answer--He was absent from the Company
on the 1st of October 1862 but from what cause
I do not know. He returned on the 9th day of
September 1863.
Question--When did he absent himself from
his Company?
Answer--On the 1st of October 1862
Question--Where?
Answer--At or near Louisville, Kentucky, we
marched from Louisville that day.
Question--Do you know under what circum-
stances he left?
Answer--No sir, I do not know. I don't know
whether he had any leave or not.
Question--Where and under what circumstances
did he return to the Company?
Answer--The first I know of it he reported to the
Company on the march I think at Johnson's
Creek. I am not positive, it was after we
crossed the Tennessee River.
Question--Do you know of the prisoner having
been paid at any time with the Company?
Answer--I think he had been paid before he
left the Company.
Question--Do you know anything in reference
to the prisoner having been sick or lame on
the 1st day of October 1862 and previously to that
time?
Answer--I know that he had been complaining
previously to that time with lameness, I think
sickness both. I am not sure though.
Question--Did you hear from the accused at any
time during his absence?
Answer--I got a letter from him once, he
wrote from New Albany.
By Court
Question--Did the prisoner perform duty with
the Company up to October 1862?
Answer--He did not all the time he was sick
part of the time.
Question--Was he doing duty with the Company
immediately before the 1st of October 1862?
Answer--I can not state positively. I think he
marched with the Company without his
gun.
Question--Was it the custom in the Regiment
to have such cases referred to the Surgeon for
excuse?
Answer--It was not very often the case. I can't say
whether it was the custom or not.
Question--What has become of the letter which
you received from the accused?
Answer--It was lost or destroyed.
Question--Did the prisoner say anything in that
letter in reference to coming back to the com-
any?
Answer--I don't think he did. He stated that
he was sick in the hospital and wanted
his Descriptive Roll. The letter was received by
me in the forepart of November 1862.
George S. Newman, a witness for the prosecution
being duly sworn testifies as follows:
Answer--2nd Lieutenant Company "K" 38th Regi-
ment Indiana Volunteers Infantry.
Question--State all you know in reference to
charge of desertion brought against the
accused, Private John Yates of your com-
pany?
Answer--When the Regiment left Louisville, I
did not go with it but remained behind to
see some relatives. I came across Mr. Yates
and he and I started together in pursuit
of the Regiment, following the Regiment
we had got about a mile and he said to me
that he did not believe he could keep up. I
told him to do the best he could and to get as
soon as possible. That was the last I saw of
him, he did not come up with the Regiment
that night.
Question--When and where was this?
Answer--On the 1st day of October 1862, at or
near Louisville, Kentucky.
Question--Do you not what became of the
prisoner after you separated from him
that day?
Answer--No sir, I do not.
Question--When did he rejoin his Company?
Answer--On the 9th of September 1863, at John-
son's Creek, Georgia.
Question--Where was the prisoner during the
time of his absence from the Company?
Answer--I can't say.
Question--Do you know of the prisoner having
been paid with the Company at any time?
Answer--I think he was paid with the Comp-
any at Shelbyville, Tennessee, in the sum-
mer of 1862.
Question--Do you know whether the prisoner
had permission to remain behind his com-
pany on the 1st day of October 1862?
Question--Do you know anything in reference
to the prisoner having been sick or lame on
the 1st of October 1862?
Answer--He was lame, had a bad knee.
Question--How long had he been lame?
Answer--Some two months, I suppose about that.
By Court
Question--Did the accused seem to you to be un-
able to march when you and he left Louisville,
Kentucky, to rejoin your regiment?
Answer--He was pretty lame, it looked like
that he got along pretty poorly, I should
think that he was unable to march and
keep up with the Company.
Question--Was he reported sick on the 30th day
of September or the 1st of October 1862 on the
morning report?
Answer--I don't know.
Question--What was your rank at that time?
Answer--Sergeant.
Captain George W. Windell, Company "K" 38th
Indiana Volunteers Infantry was duly sworn for
the prosecution and testifies as follows:
Question--State if you know to what time the
prisoner has received pay from the Govern
ment?
Answer--He received to include the 30th
of April 1862, he was paid in the month of
June 1862 at Shelbyville, Tennessee.
Question--State what you know in reference to the
whereabouts of the prisoner from the 1st day of
October 1862 to the 9th day of September 1863?
Answer--In November and December 1862 I
saw him at New Albany, Indiana. The
last that I saw of him was in hospital at that
place. It was a military hospital. He was
very sick. The next that I knew of him was
I received a letter from him dated in Grants
burg, Indiana, it was in the Spring of 1863.
I have not the letter, it was destroyed. I knew
nothing further from him until he returned to the com-
pany on the 9th of September 1863.
Question--Under what circumstances did he
return to the Company?
Answer--I don't know. The first I saw of him
he was present with the other boys.
By Court
Question--Was the Descriptive Roll of the prisoner sent
to him during his absence?
Answer--I sent one to the Provost Marshall of
the 2nd District of Indiana.
Question--Has it been returned to you?
Answer--No Sir, it has not.Answer--Surgeon 38th Regiment Indiana
Infantry.
Question--Were you present with your regi-
ment on the 1st day of October 1862?
Answer--Yes sir.
Question--In what capacity were you acting
at that time?
Answer--I was acting in the capacity of assist
ant Surgeon.
Question--Did you examine the prisoner on that
day?
Answer--Yes sir.
Question--What was his condition?
Answer--His knee was stiff from an injury
received. He had received the injury in May
or June.
Question--How far did the injury to his knee
disable him from marching on the 1st day
of October 1862?
Answer--I don't think he was able to march,
that is like an able bodied soldier.
Question--Was he disqualified for doing duty
in consequence of the injury at that time?
Answer--He was not able to perform the
marches that we were in the habit of making.
He might have been able for some light duty.
Question--Was he excused by you from march-
ing that day?
Answer--I think I told him like this; That he
would have to do the best he could. The Surgeon
of the Regiment had left and gone into town
and told me to make every man march, to
start them; that those were his instructions.
By Court
Question--Was the accused left at Louisville,
Kentucky, on the 1st of October 1862 by your
authority?
Answer--No sir.
Question--Can you give a reason why he was
not sent to a military hospital?
Answer--I can't. As far as myself was con-
cerned it was because Dr. Lod W. Beckwith would
no permit it. He was Surgeon of the
Regiment.
Question--Had the Surgeon of the Regiment
examined the accused when he instructed
you to make every man march?
Answer--No sir, I think not.
Question--Were there any men of your Regiment
left at a military hospital in Louisville, Ken-
tucky, on the 1st of October by authority?
Answer--Two days before there were some seven-
teen sent to the hospital. None on the 1st of Octo-
ber. Those seventeen were sent on my own
authority.
Question--Why was not the accused sent with
this lot?
Answer--The reason why was these were
strictly hospital cases. The Brigade Surgeon
ordered them to be divided into two classes. The
strictly hospital cases to be sent to hospital the
others to convalescent camp. The accused belong-
ed to the latter class. He was not sent to conva-
lescent camp because the Surgeon would not
permit it but ordered that they should all be
started on the march.
Question--Were any men sent to convalescent camp?
Answer--No sir.
George W. Roberson, a witness for the DeAnswer--Private Company "E" 38th Regi-
ment Indiana Volunteers.
Question--Did you see the prisoner John Yates
at any time during the month of October 1862?
Answer--Yes sir.
Question--Where?
Answer--At New Albany, he was in the hospital
at there--it was hospital No. 4
we walked a part of the way and went
a part of the way in an ambulance.
Question--How far did you ride in the ambulance?
Answer--It was not more than a mile I guess.
Question--How far is it from Louisville to New
Albany?
Answer--I think it is about three miles.
The accused here presented his affidavit marked
"A" which was read to the Court by the Judge.
Advocate and is hereto adduced.
Captain George W. Windell was recalled as a witness
as a witness for the Defence and testifies as follows.
Question--Have you at any time previous to
this seen the paper here shown you and
and marked "B"?
Answer--I have.
Question--Did you at any time compare said
paper with any others?
Answer--I have.
Question--With what?
Answer--With the original with which this is a
copy.
Question--Was this a true copy of said original?
Answer--I read them both and believe this to be
a true copy, I saw no difference. the other was
on printed form.
Question--Are you familiar with the hand
writing of J.B. Merriweather, Provost Marshall
2nd District Indiana?
Answer--I am.
Question--Is the signature to the certificate
endorsed on the copy of furlough marked
"B" in your opinion the signature of J.B.
Merriweather, Provost Marshall 2nd District
Indiana?
Answer--It is.
Paper marked "B" was then received by the Court
in evidence and read aloud by the Judge
Advocate.
There being no further testimony to offer and
the statements of the parties being thus in the
possession of the Court, the Court was cleared
for deliberation and and having maturaly con-
sidered the evidence adduced do find the
accused Private John Yates Company "K"
38th Indiana Volunteers Infantry as follows:
And the Court does therefore
acquit him the said John Yates Private
of Company "K" 38th Indiana Volunteers
Infantry.
Headquarters 1st Division 14th Army Corps
Chattanooga, Tenn Oct 31, 1863
The proceedings and findings of the Court
in the foregoing case are approved. Private
John Yates Company "K" 38th Indiana Volunteers Infantry
will be immediately released from arrest and
returned to duty with his Company.
Major General Orudy
John Yates Private of
Co. "K" 38th Indiana Volunteers Infantry being duly sworn
says that during the month of January
1863 he received a discharge furlough
which said furlough was dated at Louisville
Kentucky on the 7th day of January 1863
and was signed by Colonel Marcellus Mundy of the
23rd Kentucky Volunteers Commanding Post that
said original furlough is not now in
his possession nor is he able to produce
the same. That same furlough was placed
in the hands of his brother for safe
keeping. That his brother is now absent
in XXXXXXX Alabama and that he is
informed and believes that the same
has been lost and destroyed and is not
now in the possession of his brother.
And that the paper marked "B" hereinto
adduced is a copy of said furlough.
Eugene Cary
Capt. 1st Wisconsin Volunteers &
Judge Advocate
Headquarters Louisville
Barracks, Louisville, KY
January 7th 1863
The bearor thereof, John Yates, a
Private of Capt. Sexton's Company
"K" 38th Regiment Indiana Volunteers,
age 37 years, 6 feet high, fair
complexion, blue eyes, brown
hair, and by profession a
farmer born in the state
of Indiana and enlisted
at Camp Noble in the State
of Indiana on the __ day ___
___ eighteen hundred and sixty
one, to serve for the period of
three years, having filed at these
Headquarters Certificates of
disability, approved by the
Medical Director of this
Department, for his discharge
from the service of the
United States, which cannot
be hereafter for want of
Descriptive Roll and account
of pay and clothing; the said
at his own request and by
order of Brigadier General Hugh Boyle Ewing
Commanding Western Division
of KY is permitted to go to his
his home at Grantsburg in
the County of Crawford Sate of Indiana.
And there to remain until
his discharge can be completed
which will be duly transmitted
to him through the mail.
Subsistence has been furnished
to the said John Yates to the
7th day January 1863, And,
transportation from _______ to
________________.
Given under
my hand at Louisville
Kentucky, this 7th day of
January 1863.
Marcellus Mundy
Colonel 23rd Kentucky Volunteers
Commanding Post
I have compared this with
the original in the hands of
John Yates and certify that
it is a true copy.
J.B. Merriweather,
Provost Marshall
2nd District Indiana