Los Angeles herald., 1890-07-20
THE RUSSELL SENTENCE.
He Must Resign in Ten Days or the
REGIMENT Will Disband.

STATE OF CALIFORNIA,
ADJUTANT-GENERAL's OFFICE, (
SACRAMENTO, July 16, 1890.
GENERAL ORDERS, No. II.
Before a court-martial convened in
Los Angeles by special orders No. 3,
C. S., from division headquarters, and of
which Colonel E. B. Spileman, ninth
infantry, N. G. c., was president, there
were tried Colonel w. H. H. Russell,
seventh infantry, N. G. c., upon charges
and specifications as set forth in general
orders No. 3, C. S., from division head
quarters, promulgating the finding and
sentence of said court-martial.
The court found Colonel Russell
guilty of the first, second, third, fifth
and sixth charges, and not guilty of the
fourth charge, and sentenced him to be
"discharged from the service of the
National Guard of the state of Cali
fornia."
From the proceedings, finding and
sentence of the court Colonel Russell
has appealed to the commander-in-ch
upon the following grounds, substan-
TALLY:
First. That the sentence of discharge
was disproportionate to the offense Of
which he was found guilty.
Second. That after the case was sub
mitted and the court had been cleared
and closed for the purpose of deliber-
ating upon the evidence adduced. it, in
the absence of and without notice to the
accused, materially, altered, changed
and modified the accusation embraced
in specification one of charge three, and
after such alteration did proceed to, and
without taking further testimony, and
without notice to or opportunity on the
part of the accused to be heard, find
him guilty of the amended specification.
Third. That the evidence did not
sustain the findings.
The commander-in-chief, after ma
turely considering the case, and after
careful examination of the records of
the court, decides that the first and third
grounds of appeal are not sufficient to
warrant him in setting aside the verdict,
but he finds that the statement made in
the second reason given by Colonel
Russell for his appeal is true. that the
specification mentioned was altered by
the court when in secret session by
striking out the words "and did by such
neglect cause loss and misappropria-
ton of said funds intrusted to his care,
and the amount SO appropriated or not
properly accounted for was more than
one hundred dollars.'
The alteration of the specification at
that stage of the proceedings, and in
such manner, was clearly illegal and IA
tai to the validity of the sentence, it be-
ing in direct violation of section 122 of
the old regulations, under which the
court was acting (section $40 OF the new
regulations being identicaD. The pro-
ceedings are also incomplete for the rea-
son that the argument of the Judge
advocate and the counsel for the accused
are not attached to and made part of
it, and for the further reason that the
final judgment is not recorded and duly
signed by the president and judge-advo-
cate; and for the still further reason that
the order of the reviewing officer is not
attached, made official, and part of the
proceedings.
For the foregoing reasons, the proceed
ings, findings, and sentence in the case
of Colonel w. H. H. Russell, seventh
infantry, N. G. c., are disapproved and
he is released from arrest.
The evidence adduced in this case
shows great carelessness in the perform
ance of his duty by Colonel Russell, and
negligence in the management of the
financial affairs of his command, run
ming through long term of years. 1t
also shows want of respect for superior
authority, and a disposition to disobey
lawful orders. Petitions from large
number of the officers and enlisted men
of his regiment have been received at
these headquarters, asking that the sem
tence of the court in his case be carried
into effect, and that he shall be
discharged from the state military
service. For the foregoing reasons the
commander-in-chief is convinced that
the interest of the service demands that
Colonel Russell shall no longer exercise
active command. Therefore, he will not
assume command of his regiment with
out orders from this Office. His appli-
cation to be placed upon the retired list
will be acted upon if forwarded within
ten days after the receipt of this order.
The commander of the first brigade will
cause copy of it to be served upon him.
and notify this Office at once of the date
of such service. Ii at the end of ten
days his application to be placed upon
the retired list, or his resignation, is not
in the hands of the brigade commander,
his position will be made vacant by dis
banding the regiment, which will be
effected by mastering out one or more Of
the companies cOmpOsinp it,