[10]. Millennial Star, volume xxv: page 264.
[11]. That is, whether The Church wanted to have Sidney Rigdon for a "guardian" or leader.
CHAPTER XL.
THE TRIAL OF THE MURDERERS.
MEANTIME there was considerable excitement in Hancock County, since the mob party were determined to elect officers who would screen the murderers of the Prophets. The Saints were equally determined to vote for those whom they believed would sustain law and order; and the following were put forward as candidates for the county and district offices and elected: M. R. Deming, sheriff; D. H. Wells, coroner; George Coulson, commissioner; J. B. Backenstos and A. W. Babbitt, representatives.
The account of the trial of the miscreants charged with the murder of the Prophet I take from Gregg's "History of Hancock County," beginning at page 328:
TRIALS AND ACQUITTALS.
At the October [1844] term of the Hancock Circuit Court—present Jesse B. Thomas, judge; William Elliott, prosecuting attorney; Jacob B. Backenstos, clerk; General Minor R. Deming, sheriff.
The following is the grand jury:
Abram Lincoln, Jas. Reynolds, Th. J. Graham, Wm. M. Owens, Ebenezer Rand, Th. Brawner, Ralph Gorrell, Brant Agnert, Martin Getter, Wm. Smith, Th. Gilmore, Benj. Warrington, Reuben H. Loomis, Samuel Scott, Jas. Ward, Samuel Ramsy, Th. H. Owen, David Thompson, John J. Hickok.
Abraham Golden, E. A. Bedell and Geo. Walker excused for cause. Samuel Marshall refused to serve, and fined $5.00.
The court began its session on Monday the 21st. There had been rumors industriously circulated that the old citizens intended to rally and interpose obstacles in the way of the court and considerable anxiety was felt. The judge in his charge to the grand jury alluded to this rumor and said he was glad to see that no such demonstration was made. He charged them to do their duty in the case likely to come before them and leave the consequences. His charge gave general satisfaction.
There was a rumor that a lot of Mormons and Indians were encamped near the town and this rumor occasioned considerable uneasiness. Orders were issued to investigate. The facts turned out to be that a number of Mormons had come down from Nauvoo to attend court, and had gone into camp to save expense. As to the Indians it was ascertained that a company of them had gone through the county on their way to Iowa, for some purpose unknown; but the two facts had no connection with each other.
On Tuesday the grand jury began their work, and on Saturday about noon they brought into court two bills of indictment against nine individuals—one for the murder of Joseph Smith and the other for the murder of Hyrum Smith. The persons indicted were as follows: Levi Williams, Jacob C. Davis, Mark Aldrich, Thomas C. Sharp, Wm. Voras, John Wills, Wm. N. Grover,—Gallaher and—Allen.
Murry McConnell, Esq., of Jacksonville by special appointment of the governor was present assisting Mr. Elliot in the prosecution. Messrs. Bushnell and Johnson of Quincy and Calvin A. Warren, and perhaps others appeared for the defendants.
Immediately on announcement of the indictments most of the defendants appeared and asked for an immediate trial. This Mr. McConnell objected to on the grounds of not being ready. His witnesses before the grand jury had departed without being recognized, and besides, Mr. Elliot had gone. It was finally agreed that the causes should be postponed until next term, and that no capias should issue from the clerk in the interim if the defendants would pledge themselves to appear at the time. Agreed on—a compact which was afterwards violated by the prosecution.
Subpoenas were asked for by the prosecution for between thirty and forty witnesses, among whom were William M. Daniels and Brackenberry, the two miracle men, and John Taylor, Mrs. Emma Smith and Governor Ford.
On May 19, 1845, court again met in special term at Carthage. Present, Richard M. Young, judge; James H. Ralston, prosecuting attorney; David E. Head, clerk; and R. H. Deming, sheriff. The cause of the people vs. Williams et al coming up, Messrs. Williams, Davis, Aldrich, Sharp and Grover appeared and were admitted to bail on personal recognizance in the sums of $5,000.00 jointly and severally. Josiah Lamborn of Jacksonville as assistant prosecuting attorney and William A. Richardson, O. H. Browning, Calvin A. Warren, Archibald Williams, O. C. Skinner and Tho. Morrison for defendants. Motion of defendants to quash the array of jurors for first week, on account of supposed prejudice of county commissioners who selected them and of the sheriff and deputies was sustained. Also motion for the appointment of elisors for the same cause, and absence of corner from county. The array was set aside, and Tho. H. Owen and Wm. D. Arbenethy appointed elisors for the case. These gentlemen had a thankless and arduous duty to perform. Usually it is not difficult to find men willing to sit on juries; in this case few were willing to try the experiment of going into court, with the almost certainty of being rejected by one or the other party, and the position was not an enviable one, if taken. Ninety-six men were brought into court before the requisite panel of 12 was full. The following are names of the jurors chosen:
Jesse Griffiths, Joseph Jones, Wm. Robertson, William Smith, Joseph Massey, Silas Griffiths, Jonathan Foy, Solomon J. Hill, James Gittings, F. M. Walton, Jabez A. Beebe, Gilmore Callison.
The trial lasted till the 30th when the jury was instructed by the court and after a deliberation of several hours returned a verdict of not guilty.
Instructions to the jury had been asked by both parties, the following among a list of nine asked by defendants' counsel, were given, and probably had most influence on the verdict.
"That where the evidence is circumstantial admitting all to be proven that the evidence tends to prove, if then the jury can make any supposition consistent with the facts, by which the murder might have been committed without the agency of the defendants, it will be their duty to make that supposition, and find defendants not guilty.
"That in making up their verdict, they will exclude from their consideration all that was said by Daniels, Brackenberry and Miss Graham. [Witnesses, see note, p. 319.]
"That whenever the probability is of a definite and limited nature whether in proportion of 100 to 1 or 1,000 to 1 or any rate is immaterial, it cannot be made the ground of conviction, for to act upon it in any case would be to decide that for the sake of convicting many criminals, the life of one innocent man might be sacrificed [Starkie 508.]"
Same defendants, for murder of Hyrum Smith were requested to enter into recognizance of $5,000 each (with fourteen sureties) to the June term, 1845. At said term case was called, and Elliot and Lamborn not answering, the cause was dismissed for want of prosecution and defendants discharged.
Colonel John Hay, in the Atlantic Monthly for December, 1869, published an article on this subject. Although but a mere boy at the time of this trial he had within his reach sources of correct information. (He was a member of the State department subsequently.)
He says: "The case was closed. There was not a man on the jury, in the court, in the county, that did not know the defendants had done the murder. But it was not proven, and the verdict of not guilty was right in law. * * * The elisors presented 99 men before 12 were found ignorant enough and indifferent enough to act as jurors."
The fact is, the trial amounted to nothing more than a farce. The law had been outraged, the honor of the State betrayed, her plighted faith was shamefully broken, and there was not virtue enough in the people to demand its vindication. Nor is this at all an exaggerated statement of the matter. The governor of Illinois himself—Thomas Ford—admits all that is here said. Of the atrocious deed itself and his determination to bring the murderers to justice he says:
I had determined from the first that some of the ringleaders in the foul murder of the Smiths should be brought to trial. If these men had been the incarnation of Satan himself, as was believed by many, their murder was a foul and treacherous action, alike disgraceful to those who perpetrated the crime, to the State, and to the governor, whose word had been pledged for the protection of the prisoners in jail, and which had been so shamefully violated; and required that the most vigorous means should be used to bring the assassins to punishment.[[1]]
Speaking of the trial, Governor Ford says: