The of , in his demand, calls Smith a fugitive from justice, charged with being accessary before the fact to an assault with intent to kill, made by one , on , in this state (). This 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 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 executive 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 accessary 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 the said state of , 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 accessary 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 [p. 138]