Justice’s court; June 17th 1844; , Justice of the Peace presiding.
State of vs Joseph Smith, , , , , , , , , , , , , , , and .
Defendents were brought before the court by , constable of the aforesaid, by virtue of a warrant issued by the court, on complaint of , for a ‘ committed in the city of , county aforesaid, on or about the 10th day of June, 1844, by forcibly entering a brick building, in said occupied as a printing office, and taking therefrom by force, and with force of arms a printing press, types and paper, together with other property belonging to , , , , , and , and breaking in pieces and burning the same in the streets.’
Esq. appeared as council for the defence and
Esq. for the prosecution.
sworn, said he was present when the city council passed an order for the destruction of the press; went up to the and heard the read the order of the Mayor; did not know how they got into the building; the press was taken out and destroyed.
Defendant’s council objected to witness’ stating who voted for the passage of the bill in the council, and read Burns’ definition of a , and said there could be no accessary.
read from the statute, page 173, and plead there might be an accessary to a riot.
Court decided there might be an accessary to any crime either before or after the fact.
Witness knew some who voted for the order in the city council, heard give orders for the destruction of the press; , and took an active part in the destruction of the press. Did not know all the persons.
Cross examined— City Council considered the press a nuisance and ordered it to be abated; was present at the execution of the Mayor’s orders; no unnecessary noise; all was done peaceably; saw no disorder: heard no language by the prisoners calculated to disturb the peace.
sworn— was at the printing office; heard give orders to open the door. carried out the press and type; recollected ; could not identify any others; no contention between the and Higbee; asked for the key which he refused to give; heard no threats concerning the destruction of the press at any time.
O. F. Moesseur sworn— saw many people gather around the printing office; went over, back, and over again; could not identify any person; heard no loud talking or noise.
P. T. Rolfe sworn— was at work in the printing office last Monday night; came in and said the council was about to destroy the press and took some papers from the desk; come with a company and demanded the key. and forbid him; door was opened by , as witness thought; the press and fixtures were destroyed; some paper and a desk belonging to containing several thousand dollars of property. $4000 auditor’s warrents and other valuable papers.
Cross examined— Did not know the amount of warrants or papers; presumed they were destroyed; did not know they were destroyed; did not know whether they were destroyed; was from the office long enough to have them taken out. Said , , , , , and helped move the press. Never knew any thing against Joseph Smith personally.
sworn— Was present at the council when the bill passed to destroy the press.
Joseph Smith objected to calling in question the doings of the city council, and refered to the proceedings of Congress to show that all legislative bodies have a right to speak freely on any subject before them; and that Congress is not responsible for a riot which might arise on the execution of their order by the Marshal; that the execution of such order could not be a riot, but a legal transaction; that the doings of the city council could only be called in question by the powers above them; and that a Magistrate had not that power; that the city council was not arrayed here for trial; but individuals were arraigned for a riot;— if the city council had transcended their powers they were [a]menable to the supreme court, and that had decided that an action could not lie, if no riot had been committed.
said if the act was committed under an ordinance of the they might show it in justification.
Court decided that the gentlemen arraigned, were arraigned in their individual capacities, and could not be recognized by the court to their official capacity.
said that all he heard the prisoner say, was said as councillors.
Testimony on the prosecution closed.
moved that the prisoners be dismissed for want of a case being made out.
read the riot act, and plead a case had been made out.
Motion overruled by the court.
, , and Edward Wingett [Wingate] sworn.
Dr. , (of ) said he went on the Hill after the order passed the Council, saw some portion of the Legion collected, walking quietly along as though they were walking to the dead march in ‘Saul,’ there was no noise or tumult. Higbee asked the his authority, stated his authority from the Mayor for abating the nuisance; Higbee set them all at defiance, some twelve men were called out who went up stairs and opened the door, did not know how the door was opened, there was not more than one thump; asked one of the officers if any thing was destroyed except what belonged to the Press and the officer repl[i]ed no! All was done in perfect order, as peaceably as people move on a Sunday; was present all the time, all that was done, was done in their official capacity as officers of the .
objected to the testimony, as it was not before the court that there was any .
Court decided that any knowledge in possession of the Court was testimony in the Court.
E. Wingott, -[of ]- concurred in ’s statements, was by the door when it was opened, and knew that nothing more than a knee was put against it; all was done quietly; was present in cty council when the order passed, nothing said in council except what was said in capacity of counsellor and aldermen,— was by the door all the time when the press and type, and things used in connexion with the press was destroyed; There was no other property taken from the building.
Cross examined.— Did not know the name of the man who opened the door—knew .
read the resolutions of the city council of the 10th inst., declaring the press a nuisance &c.; and the Mayor’s order to the to destroy the press; and the Lieut. Generals order to , to assist the with the Legion if needed, to abate the nuisance; and the ’s return that the press and type were destroyed. -[as published in the “Neighbor” June 19.]-
Court queried about the destruction of the desk.
was again called up; heard tell the officers and men, to hurt no property except the press, type and fixtures; and after the enquired if his order had been obeyed, and the officers said it had.
E. Wingott called again; heard ask for the key of the office, and afterwards saw him deliver the key to ; there was nothing destroyed but what pertained to the press.—
Addison Everett -[of ]- sworn;— saw the press and type taken out and burned— saw no other property burned; desk might have been taken away before— should not have seen it if it had been; saw no desk burned,— does not believe any desk was burned.
sworn— Foster said his docket was not burned. Witness was sure that said he had taken other papers out of the desk.
called again; saw coming from the office, and go into ’s house, with books under his arm; looked like account books—saw nothing but the press and fixtures brought out except a chain, and the ordered it carried back.
E. Wingott, recalled— stood close by the door; could see all that was done, did not believe a desk could be brought out and he not see it.
recalled— Joseph Smith and were not on the Hill at all that evening.
was discharged by the court and sworn; asked for the key to the office, hesitated; said he wanted to get a desk that had some valuable papers in it— got the key and went in; did not see him remove the desk, might have removed it and not see it, there was no desk burned.
The couneellors submitted the case without plea; and the court discharged the prisoners. [p. ]