Trial Report, 5–19 January 1843, as Published in Reports [Extradition of JS for Accessory to Assault]
Source Note
Trial Report, [, Sangamon Co., IL], 5–19 Jan. 1843, Extradition of JS for Accessory to Assault (United States Circuit Court for the District of IL 1843). Published in John McLean, Reports of Cases Argued and Decided in the Circuit Court of the United States, for the Seventh Circuit, vol. 3, Cincinnati: Derby, Bradley and Co., 1847, pp. 121–139. Includes typeset signature marks.
for the fugitive shall be made; nor does it prescribe the proof upon which he shall act. But Congress has done so. The proof is “an indictment or affidavit,” to be certified by the demanding. The return brings before the court the warrant, the demand and the affidavit. The material part of the latter is in these words, viz:—“, who being duly sworn, doth depose and say, that on the night of the 6th day of May, 1842, while sitting in his dwelling in the town of , in the county of , he was shot with intent to kill; and that his life was despaired of for several days, and that he believes, and has good reason to believe, from evidence and information now in his possession, that Joseph Smith, commonly called the Mormon prophet, was accessary before the fact of the intended murder, and that the said Joseph Smith is a citizen or a resident of the state of .”
This affidavit is certified by the of to be authentic. The affidavit being thus verified, furnished the only evidence upon which the of could act. Smith presented affidavits proving that he was not in at the date of the shooting of . This testimony was objected to by the of , on the ground that the court could not look behind the return. The court deems it unnecessary to decide that point, inasmuch as it thinks Smith entitled to his discharge for defect in the affidavit. To authorise the arrest in this case, the affidavit should have stated distinctly, 1st. That Smith had committed a crime. 2d. That he committed it in .
It must appear that he fled from , to authorise the of to demand him, as none other than the governor of the state from which he fled, can make the demand. He could not have fled from justice, unless he committed a crime, which does not appear. It must appear that the crime was committed in , to warrant [p. 132]