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.
have no agency in his conviction and punishment. But if he shall go into , he owes obedience to her laws, and is liable before her courts, to be tried and punished for any crime he may commit there; and a plea that he was a citizen of another state, would not avail him. If he escape, he may be surrendered to for trial. But when the offence is perpetrated in , the only right of is, to insist that compel her citizens to forbear to annoy her. This she has a right to expect. For the neglect of it, nations go to war and violate territory.
The court must hold that where a necessary fact is not stated in the affidavit, it does not exist. It is not averred that Smith was accessary before the fact, in the state of , nor that he committed a crime in : therefore, he did not commit the crime in —did not flee from to avoid punishment.
Again, the affidavit charges the shooting on the 6th of May, in the county of , and state of , “that he believes and has good reason to believe, from evidence and information now (then) in his possession, that Joseph Smith was accessary before the fact, and is a resident or citizen of .”
There are several objections to this. having the “evidence and information in his possession,” should have incorporated it in the affidavit, to enable the court to judge of their sufficiency to support his “belief.” Again, he swears to a legal conclusion, when he says that Smith was accessary before the fact. What acts constitute a man an accessary is a question of law, and not always of easy solution. ’ opinion, then, is not authority. He should have given the facts. He should have shown that they were committed in , to enable the court to test them by the laws of , to see if they amounted to a crime. Again, the affidavit is fatally defective in this, that swears to his belief. [p. 135]