History, 1838–1856, volume D-1 [1 August 1842–1 July 1843]

  • Source Note
  • Historical Introduction
Page 1443
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in his demand calls Smith a fugitive from justice, charged with being accessory before the fact to an assault with intent to kill, made by one , on , in this State -[]- This [HC 5:230] expressly refers to the Affidavit as his authority for that statement. in his affidavit does not call— Smith a fugitive from justice, nor does he state a fact from which the had a right to infer it. Neither does the name of appear in the affidavit, nor does say Smith fled. Yet the says he has fled to the State of . But only says he is a citizen or resident of the State of . The of responding to the demand of the of , for the arrest of Smith, issues his warrant for the arrest of Smith, reciting that “whereas Joseph Smith stands charged by the affidavit of with being accessory before the fact to an assault with intent to kill, made by one , on , on the night of the 6th. <​day​> of May 1842, at the County of in said State of Missouri, and that the said Joseph Smith has fled from the justice of said , and taken refuge in the State of .” Those facts do not appear by the affidavit of , on the contrary, it does not assert that Smith was accessory to : nor that he had fled from the justice of the State of and,— taken refuge in the State of . The Court can alone regard the facts set forth in the affidavit of , as having any legal existence. The mis-recitals and over statements in the requisition and warrant, are not supported by oath, and Cannot be received as evidence to deprive a Citizen of his liberty, and transport him to a foreign State for trial. For these reasons Smith must be discharged. At the request of , counsel for Smith, it is proper— to state in justice to the present Executive of the State of , , that it was admitted on the argument, that the warrant which originally issued upon the said requisition was issued by his predecessor; that when Smith came to to surrender himself up upon that warrant, it was in the hands of the person to whom it had been issued at in this ; and that the present warrant, which is a copy of the former one, was issued— at the request of Smith, to enable him to test its legality by writ of .
Let an order be entered that Smith be discharged from his arrest. [10 lines blank] [p. 1443]
in his demand calls Smith a fugitive from justice, charged with being accessory before the fact to an assault with intent to kill, made by one , on , in this State -[]- This [HC 5:230] expressly refers to the Affidavit as his authority for that statement. in his affidavit does not call— Smith a fugitive from justice, nor does he state a fact from which the had a right to infer it. Neither does the name of appear in the affidavit, nor does say Smith fled. Yet the says he has fled to the State of . But only says he is a citizen or resident of the State of . The of responding to the demand of the of , for the arrest of Smith, issues his warrant for the arrest of Smith, reciting that “whereas Joseph Smith stands charged by the affidavit of with being accessory before the fact to an assault with intent to kill, made by one , on , on the night of the 6th. day of May 1842, at the County of in said State of Missouri, and that the said Joseph Smith has fled from the justice of said , and taken refuge in the State of .” Those facts do not appear by the affidavit of , on the contrary, it does not assert that Smith was accessory to : nor that he had fled from the justice of the State of and,— taken refuge in the State of . The Court can alone regard the facts set forth in the affidavit of , as having any legal existence. The mis-recitals and over statements in the requisition and warrant, are not supported by oath, and Cannot be received as evidence to deprive a Citizen of his liberty, and transport him to a foreign State for trial. For these reasons Smith must be discharged. At the request of , counsel for Smith, it is proper— to state in justice to the present Executive of the State of , , that it was admitted on the argument, that the warrant which originally issued upon the said requisition was issued by his predecessor; that when Smith came to to surrender himself up upon that warrant, it was in the hands of the person to whom it had been issued at in this ; and that the present warrant, which is a copy of the former one, was issued— at the request of Smith, to enable him to test its legality by writ of .
Let an order be entered that Smith be discharged from his arrest. [10 lines blank] [p. 1443]
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