Trial Report, 12–15 May 1844, as published in Times and Seasons [F. M. Higbee v. JS–A on Habeas Corpus]

Document Transcript

City of , Illinois,)
Third day, Regular Term, May 8, 1844.)
Before Alderman , acting chief justice; and Aldermen , , , , , and , associate justices, presiding.
Ex-Parte,) Messrs. & ,
Joseph Smith, Sen.)
On .) Counsel for Smith.
This case came before the court upon a return to a writ of habeas corpus, which was issued by this court on the 6th of May, instant, upon petition of Joseph Smith, Sen. as follows:
City of .)
To the Honorable Municipul Court in and for the City of :
The undersigned, your petitioner, most respectfully represents that he is an inhabitant of said ; your petitioner further represents that he is under arrest in said , and is now in the custody of one , deputy sheriff of the county of , and State of ; that the said holds your petitioner by virtue of a writ or “” issued by the clerk of the circuit court, of the county of , and State of , at the instance of one , of said county, requiring your petitioner to answer the said , “of a plea of the case,” damage five thousand dollars; your petitioner further represents that the proceedings against him are illegal; that the said warrant of arrest is unformal, and not of that character which the law recognises as valid, that the said writ is wanting and deficient in the plea therein contained; that the charge or complaint which your petitioner is therein required to answer, is not known to the law.
Your petitioner further avers that the said writ does not disclose in any way or manner whatever, any cause of action, which matter your petitioner most respectfully submits for your consideration; together with a copy of the said warrant of arrest which is hereunto attached.
Your petitioner further states that this proceeding has been instituted against him without any just or legal cause; and further that the said , is actuated by no other motive than a desire to persecute and harrass your petitioner, for the base purpose of gratifying feelings of revenge, which, without any cause, the said has for a long time been fostering and cherishing.
Your petitioner further states that he is not guilty of the charge preferred against him, or of any act against him, by which the said could have any charge, claim or demand, whatever against your petitioner.
Your petioner further states, that he verily believes that another object the said had in instituting the proceeding, was, and is, to throw your petitioner into the hands of his enemies, that he might the better carry out a conspiracy which has for some time been brewing against the life of your petitioner.
Your petitioner further states that the suit which has been instituted against him has been instituted through malice, private pique, and corruption.
Your petitioner would therefore most respectfully ask your honorable body, to grant him the benefit of the writ of habeas corpus, that the whole matter may be thoroughly investigated, and such order made, as the law and justice demands in the premises, and your petitioner will ever pray.
, May, 6, 1844.
State of Illinois,) Sc[ilice]t.
City of .)
The people of the State of : To the of said : . . . GREETING.
Whereas, application has been made before the Municipal Court of said , that the body of one Joseph Smith, Senior, of the said city of , is in the custody of Deputy sheriff of , state aforesaid:
These are therefore to command the said , of the aforesaid, to safely have the body of said Joseph Smith, Senior, of the aforesaid, in his custody detained, as it is said, together with the day and cause of his caption and detention, by whatsoever name the said Joseph Smith, Senior may be known or called before the Municipal court, of said forthwith, to abide such order as the said court shall make in this behalf, and further, if the said , or other person or persons, having said Joseph Smith, Senior, of said city of , in custody, shall refuse or neglect to comply with the provisions of this writ, you the Marshal of said , or other person, authorized to serve the same, are hereby required to arrest the person or persons so refusing or neglecting to comply as aforesaid, and bring him or them together with the person or persons in his or their custody, forthwith before the Municipal court, aforesaid, to be dealt with according to law; and herein fail not and bring this writ with you,
Witness, , Clerk of the Mu [p. 536]
nicipal court at , this 6th day of May, in the year of our Lord, one thousand eight hundred and forty-four.
Clerk, M. C., C.
I hold the within named Joseph Smith, Senior, under arrest, by virtue of a .
Circuit Court,
To May Term, A. D. 1844.
Vs.) In case.
Joseph Smith.)
The day of his caption, May 6th, 1844.
To damage, five thousand dollars.
, S.
By , D. S.
State of Illinois,) ss [scilicet]
The People of the State of : To the of said : . . . GREETING.
We command you that you take Joseph Smith, if to be found within your , and him safely keep, so that you have his body before the circuit court of said county of , on the first day of the next term thereof, to be holden at the court house in on the third Monday in the month of May, instant, to answer , of a plea of the case; damage, the sum of five thousand dollars as he says; and you have then there this writ, and make due return thereon, in what manner you execute the same.
Witness, , Clerk of said circuit court, at this first day of May, in the year of our Lord one thousand eight hundred and forty-four.
, Clerk,
By , Deputy.
The is directed to hold the within named defendant to bail in the sum of five thousand dollars.
, Clerk,
By , Deputy.
This is a true copy of the original, now in the possession of , sheriff of .
By , Deputy.
Hancock County;) Sct. [scilicet]
City of .)
To Mr. :—
Sir, You will please to take notice that Joseph Smith, Senior, has petitioned for a writ of habeas corpus, from the Municipal Court of said , praying that he may be liberated from the custody of , Deputy sheriff of , by whom he is held in custody on a , issued by the circuit court of , on the first day of May, instant, to answer , on a plea of the case, &c.; which writ is granted, and you will have the opportunity to appear before the Municipal court, at 10 o’clock, A. M., on the 7th of May, instant, at the Mayor’s Council Chamber, in said , and show cause why said Joseph Smith, Senior, should not be liberated on said habeas corpus.
Witness my hand and seal of Court, this 6th day of May, 1844.
, Clerk, M. C., C.
The above trial is deferred until Wednesday, the 8th instant, 10 o’clock, A M.
, Clerk.
I have served the within, by reading to the within named .
, Constable.
did not appear either by himself or counsel.
Mr. then said that the petition and papers have been read in your hearing; it is a petition for an habeas corpus on the grounds— 1st; the insufficiency of the writ, and other causes assigned. The insufficiency of the writ is sufficient to discharge the prisoner, it is the privilege and option of this court, if the writ is invalid. It is the privilege of the prisoner to have all the matters investigated, in order to prove that the prosecutor is joined in with other persons in a conspiracy to take away Mr. Smith’s life. Although it is competent for the court to discharge on account of the insufficiency of the writ, yet we want an examination into the matters, in order that all may be understood. All warrants should disclose the crimes known to the court, so that the prisoner might know what answer to make; the prisoner might have had to lay in jail six months, because he knows nothing what he is charged with in the writ; it might be that he is charged with debt; that he had to pay to the sum of five thousand dollars, or any thing: there is no action specified; is it meant for trespass, for mal-treating, beating, or slander, or what other crime, so that the damage of five thousand dollars might be known for what it is. The writ is void for want of substance and form, all who are familiar with law; common sense, or justice, must know that it is indefinite; no charge defined. If we are not released here, we shall be released in the circuit court, on account of the insufficiency, but we are now willing to investigate the merits of the case. We know nothing but from information from other sources, and we want this court to determine whether we are [p. 537] held to any charge to ; we have given him notice to attend here; if he has any cause to keep him here. I propose to bring in the testimony of the prisoner, he has averred certain facts; he is ready to make oath of it if your honor require it; there is no ordinance against the prisoner taking his oath; it is within the province of the court to do so, it is the privilege of the court in any case to hear the plaintiff in any cause; law is founded on justice; there can no iniquity arise from any thing in this matter.
said, It has been truly stated that this court has nothing before it on which it can act, there is a prisoner brought into court who was in custody within the province of your honor; those papers have been read but they disclose no crime, no guilt; there are no merits to try, they present no meritorious cause of action, they do not present the prisoner’s guilt in any form whatever; what are the merits? Shall we try him for horse stealing, burglary, arson or what? You shall hear the merits if you can find them out, then the court has power to try; is it burglary, arson or something else? What is the point to try? Those papers know no crime, this court knows no crime, there is no merits, no existence of any thing, it is an ignus fatuus, a will-o’wisp; to arrest somebody for doing nothing; to have the privilege of trying a law suit about nothing; the court never says ever prefered any thing, if there can any merits be hatched up, we will try it.
J. Smith was satisfied that this thing can be brought to trial it appears I am a prisoner, and by the authority of the circuit court. I petitioned this court for a hearing I am a prisoner, and aver that it is a malicious prosecution, and a wicked conspiracy, got up by men for the purpose of harassing me, and decoying me into their hands. I want to show that this has joined a set of men, who have entered into a conspiracy to take away my life. After hearing the case, you have power to punish, imprison, or fine, or any thing you please, you have a right to punish the offender, if I am a criminal you have a right to punish me, and send me to the circuit court, but if I am as innocent as the angels of heaven, you have power to send the prosecutor to trial if crime is proved against him. They have no merit in their cause, I want to show up their conspiracy, that these men are working the basest corruption, they have lifted up their hands against innocence; you have power to hear the petitioner on his oath. I will show you a precedent. Look at the federal court of this district; the case was made out by affidavit, which I swore to before the court.
The habeas corpus is granted on the testimony of the petitioner, it is the law in Blackstone, that where no other matter is in existence, and the prisoner swears he is innocent, and his character for truth is supported by good testimony he must be discharged, and then goes away as free as the proud eagle. If I have the privilege of testimony under oath, to the facts that they make slander of, then they cannot do any thing with it. Suppose that I am an eye witness to the crime of adultery, or any other crime, and know verily for myself, that the man is guilty of adultery, or other crime, and I speak of it, the man may sue me for damages although I know the man to be guilty, but if I swear to it in a court, he cannot hurt me. If I have the privilege of giving testimony under oath, they can never do any thing with me, but if you discharge me on the insufficiency of the writ; they can prosecute me again and again, but if you give me a fair hearing they cannot prosecute me again; I want the oath to go to the world; I must make statements of facts in order to defend myself. I must tell the story in its true light, under oath; then I can be forever set free; may I not have the privilege of being protected by law? The peace of myself, my family, my happiness, and the happiness of this city depend upon it.
The court allowed him to proceed with the case.
said, This is a malicious prosecution, and we have averred that it is malicious, and have a right to prove it. There is an insufficiency in the writ, the writ did not show any crime had been committed, and we can show that we are not guilty of any plea in the case; there is no charge or case against us; the whole matter is corrupt, and malicious and wicked.
Joseph Smith sworn— Said, I must commence when was foaming against me, and the Municipal Court, in my house.— said he was grieved at me, and I was grieved at him. I was willing on my part to settle all difficulties, and he promised if I would go before the City Council and tell them he would drop every thing against me forever. I have never mentioned the name of disrespectfully from that time to this; but have been entirely silent about him; if any one has said that I have spoken disrespectfully since then, they have lied: and he cannot have any cause whatever. I want to testify to this court of what occurred a long time before left this city. I was called on to visit ; I went and found him on a bed on the floor.
-[Here follows testimony which is too indeli [p. 538]cate for the public eye or ear; and we would here remark, that so revolting, corrupt, and disgusting has been the conduct of most of this clique, that we feel to dread having any thing to do with the publication of their trials; we will not however offend the public eye or ear with a repetition of the foulness of their crimes any more.]-
said pointed out the spot where he had seduced a girl, and that he had seduced another. I did not believe it, I felt hurt, and labored with about it; he swore with uplifted hands, that he had lied about the matter. I went and told the girl’s parents, when and made affidavits and both perjured themselves, they swore false about me so as to blind the family. I brought before , and others; was present, when they both acknowledged that they had done these things, and asked us to forgive them. I got vexed, my feelings had been hurt; has been guilty of adulterous communication, perjury, &c.; which I am able to prove by men who heard them confess it. I also preferred charges against , the same charges which I am now telling; and he got up and told them it was the truth, when he pleaded for his life, and begged to be forgiven; this was his own statement before sixty or seventy men; he said the charges were true against him and . I have been endeavoring to throw out shafts to defend myself, because they were corrupt, and I knew they were determined to ruin me; he has told the public that he was determined to prosecute me, because I slandered him, although I tell nothing but the truth. Since the settlement of our difficulties, I have not mentioned his name disrespectfully; he wants to bind up my hands in the circuit court, and make me pay heavy damages for telling the truth. In relation to the conspiracy, I have not heard say he would take away my life; but , and said they would shoot me; and the only offence against me is telling the truth. I did say that did steal a raw hide, I have seen him steal a number of times; these are the things that they now want to ruin me for; for telling the truth. When riding in the stage, I have seen him put his hand in a woman’s bosom, and he also lifted up her clothes. I know that they are wicked, malicious, adulterous, bad characters; I say it under oath; I can tell all the particulars from first to last.
, sworn, With regard to , at the time that is spoken of, I stopped opposite s’ store, we had been conversing with when I came into the room, rather recoiled and wished to withdraw; he went out and sat upon a pile of wood. He said it is all true, I am sorry for it, I wish it had never happened. I understood who related some of the circumstances, he cried and begged of us to forgive him, and said if he could be permitted to stay in the as a private individual he should be happy; that was about what he said; it is true, I am sorry for it I wish it had never been so; as we came up, , , and Mr. Smith, had been talking about it, I have not mentioned it before, I knew of the whole affair, it was on the 4th of July, or a few days after— it was shortly after I came from . I was in the City Council when said all was settled.
Cross-examined:— I have heard say all these things were facts; he acknowledged that had the —— and that he had doctored him, he acknowledged that, and a great deal more.
I will make one statement in our conversation with . I told that one charge was seducing young women, and leading young men into difficulty— he admitted it— if he had let young men and women alone it would have been better for him.
, sworn, In relation to the matters before the court I am unacquainted with I was sick at the time but I have heard it talked of back and fro.
Cross-examined:— I recollect Joseph Smith came to me with a complaint against and , and made affidavit that it was true; I have the affidavit in my house. I went to see on last Saturday, I found him at Mr. Morrisons— he was waiting for a steam boat— I endeavered to prevail on him to relinquish his undertaking; he said I have no character in , for I have none to lose, I tried to convince him that he had a character and might be looked upon with respect, but he flatly contradicted me, and said he had none, and that was the reason why he persecuted Joseph Smith — as he had no character, he did not care what he did— he had nothing to lose by it— that is the substance of our conversation.
sworn,— I recollect a settlement of difficulties between and my brother Joseph, about which some of the court may recollect. I recollect asking forgiveness of the Lodge when there was about sixty present— acknowledged that it was the truth, that he was sorry, and had been a thousand times; he acknowledged his connection with the wo [p. 539]man on the hill; I did think he was with at the time, the statement of was, that he was guilty, he was sorry and asked forgiveness, he said he had seduced six or seven, he acknowledged it, and said if he was forgiven, he would not be guilty any more. said he knew it was true, he was sorry and had been a hundred times; the very things that we had challenged him with, he acknowledged. I told that it had better be settled he said, Joseph had accused him— if his character was gone all was gone, he said he would settle it and they went into the room, he did not deny any charge, he said he was sorry, that he wanted it buried, and it was agreed to do so. did not say any thing about his sickness, but made those observations to him that he had doctored him in the time of his sickness.
Cross examined.— I asked if he did not tell that he had seduced a girl, he replied, I told that I did seduce her, but I tell you I never did it; I told him so for my own notion of things; I do not recollect of him saying -[[that he had got a bad disorder with the French Girl]- he said he should not have been seduced, if it had not been by , when charged with them, said they were true; that they were alledged a hundred times; he said “I will alter, I will save my character.” I have never heard from brother Joseph any thing about his character, Joseph did not accuse him of any thing before the police; he said had better take care, was a little dissatisfied, but that difference was settled; I was present; he said he would not receive any thing again from abroad; he would not take any steps by hearsay, he would come to him and tell him, there wereseveral present when this took place.
sworn— he recollected the conversation but not very distinctly, but he did recollect that acknowledged to Joseph Smith that he was guilty of the charges preferred against him.
Court adjourned for one hour and a half.
Court met.
, sworn:— With regard to this case I know nothing, but through a circumstance occurring at . came to my house to preach, he preached and was upholding the authorities of the Church very much, he came over here and apostatized the same day; I then came over and went to see him, I asked him why he had changed his mind so quick? he said he had seen affidavits of the guilt of Mr. Smith, he told me was going about to the different conferences. I told him I thought he had better send some one else, his conduct was not the best and I know of circumstances that were not right. Once I was a mate on a Steam Boat, and was clerk, we had not much cabin; we had some females on board; I and another had given up our room to some ladies for the night; it was my watch, and I went into the cabin for my Buffalo Robe, about one o’clock in the night, when I saw him leaning over the berth where one of the ladies slept; this was in the night— and he had no business there, no gentleman had any right there; I gave up my berth to the ladies; I felt indignant at such conduct, his conduct towards the lady passengers was unbecoming, and particularly in one who professes so much virtue as he now does.
, sworn:— I have seen go into rooms with females, but what their intentions were I did not know, I might have seen him two or three times; I think he has done that which is not right, I should judge from conversations with him, that was the case: I presume he has a good many times; I might recollect twenty times, he has frequently told me things of that kind, it is a private case to be sure— he has told me, that he had commenced an action against Joseph Smith for slander; I met to day, I asked him about the fuss, when he said he had got Mr. Smith up for slander; he said he should not come here— but did not say why, I recollect the time that he was sick, when attended him, I went to see him nearly every day, I understood to say that he was prosecuting Mr. Smith for slander; that he was up before the Municipal Court, he told me he supposed I was wanted to prove that he was a thief, whoremaster, and every thing else.
, sworn;— I have several times had conversations with ; I recollect that near two years ago there was a fuss about s spiritual wife system before the High Council. I recollect a French woman coming up from , and that had medical assistance * * * * * * attended him, Joseph Smith administered unto him but it was irksome; assented that it was so, he did not contradict it, he promised to reform— he would do better, he would do so no more.
, sworn— I think it is near two years: I had some conversation with , he expressed himself indignant at some things; he expressed himself that he was sorry, he would live a new life, he never would say a word against President Joseph Smith; he had an inclination to write that what he published was false. I exhorted him to go and recall what he had said. I after [p. 540]wards saw him in , when he promised by every thing sacred that he would come home, reform, and then go and publish this doctrine, for it was true; he said he had taken a course that was wrong towards President Smith, and was sorry for it. He said he would study at , for his character was ruined here. When we were in , we went over to , and exhorted him to alter his conduct. The last time I conversed with him, he said, “if I had taken your council, I should now have been a man looked on with respect; he said he was not connected with the people that opposed President Smith and never would”— he much regretted the course he had taken.
After hearing the foregoing evidence in support of said petition, it is considered and ordained by the court; 1st, That the said Joseph Smith, Senior, be discharged from the said arrest and imprisonment, complained of in said petition, on the illegality of the writ, upon which he was arrested, as well as upon the writ of the case, and that he . Secondly, ’s character having been so fully shown, as infamous, the court is convinced that this suit was instituted through malice, private pique and corruption; and ought not to be countenanced; and it is ordained by the court that said pay the costs.
In Testimony whereof, I hereunto set my hand and affixed the seal of said court, at the city of , this 8th day of May, 1844.
, Clerk. [p. 541]