For the Neighbor.

State of Illinois,

County of Hancock. ) ss.

Justice’s court; June 17th 1844; Daniel H. Wells, Justice of the Peace presiding.

State of Illinois vs Joseph Smith, Samuel Bennett, John Taylor, Wm. W. Phelps, Hyrum Smith, John P. Green, Stephen Perry, Dimic B. Huntington, Jonathan Dunham, Stephen Markham, Jonathan Holmes, Jesse C. Harman, John Lytle, Joseph W. Coolidge, Hervey D. Redfield, O. Porter Rockwell and Levi Richards.”

Defendants were brought before the court by Joel S. Miles, constable of the county aforesaid, by virtue of a warrant issued by the court, on complaint of W.G. Ware, for a ‘Riot committed in the city of Nauvoo, county aforesaid, on or about the 10th day of June, 1844, by forcibly entering a brick building, in said city 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 Wm. Law, Wilson Law, Robert D. Foster,. Charles A. Foster, F. M. Higbee, Chauncy L. Higbee and Charles Ivins, and breaking in pieces and burning the same in the streets.’

George P. Stiles Esq. appeared as council for the defence and

Edward Bonny Esq. for the prosecution.

W. G. Ware sworn, said he was present when the city council passed an order for the destruction of the press; went up to the Temple and heard the Marshal 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 riot, and said there could be no accessary.

Counseller Bonny 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 Gen. Dunham give orders for the destruction of the press; Dunham, Redfield and Richards 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.

H. O. Norton sworn—was at the printing office; heard Marshal Green give orders to open the door. Markham carried out the press and type; recollected Dunham; could not identify any others; no contention 'between the' Marshal and Higbee; Marshal asked Chas. A. Foster 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; C. Higbee came in and said the council was about to destroy the press and took some papers from the desk; Marshal Green come with a company and demanded the key. Foster and Higbee forbid him; door was opened by Lytle, as witness thought; the press and fixtures were destroyed; some paper and a desk belonging to Dr. Foster 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 Green, Dunham, Markham, Holmes, Perry, Edwards and Harman helped move the press. Never knew any thing against Joseph Smith personally.

B. Warrington 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 amenable to the supreme court, and that judge Thomas had decided that an action could not lie, if no riot had been committed

Councillor Bonny said if the act was committed under an ordinance of the city 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 in their official capacity.

Witness said that all he heard the prisoner say, was said as councillors.

Testimony on the prosecution closed.

Councillor Stiles moved that the prisoners he dismissed for want of a case being made out.

Councillor Bonny read the riot act, and plead a case had been made out.

Motion overruled by the court

Dr. Wakefield, Willard Richards, and Edward Wingett sworn.

Dr. J. R. Wakefield, (of New York) 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 Marshal his authority, Marshall stated his authority from the Mayor for abating the nuisance Higbee set them all at defiance, some twelve men were called out who went upstairs and opened the door, did not know how the door was opened, there was not more than one thump; Marshall Green asked one of the officers if any thing was destroyed except what belonged to the Press and the officer repled 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 city.

Councillor Bonney objected to the testimony, as it was not before the court that there was any city

Court decided that any knowledge in possession of the Court was testimony in the Court,

E. Wingott. [of Boston] concurred in Dr. Wakefield’s statements, was by the door when it was opened, and knew that nothing more than a k[n]ee was put against it; all was done quietly; was present in city 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 types, 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 O. P. Rockwell.

Willard Richards read the resolutions of the city council of the 10th inst., declaring the press a nuisance &c.; and the Mayor’s order to the Marshal to destroy the press; and the Lieut. Generals order to Major Gen. Dunham, to assist the Marshal with the Legion if needed, to abate the nuisance; and the Marshal’s return that the press and type were destroyed. [as published in the “Neighbor” June 19.]

Court queried about the destruction of the desk.

Dr. Wakefield was again called up; heard Marshal tell the officers and men, to hurt no property except the press.type and fixtures; and after the abatement Marshal enquired if his order had been obeyed, and the officers said it had.

E. Wingott called again; heard Mr. Foster ask Higbee for the key of the office, and afterwards saw him deliver the key to Mr. Higbee; there was nothing destroyed but what pertained to the press.—

Addison Everett [of New York] 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.

Joel S. Miles sworn—Foster said his docket was not burned. Witness was sure that Dr. Foster said he had taken other papers out of the desk.

W.G. Ware called again; saw Charles Foster coming from the office, and go into Foster’s house, with books under his arm; looked like account books—saw nothing but the press and fixtures brought out except a chain, an^\d the marshal 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.

Dr. Wakefield recalled—Joseph Smith and Hyrum were not on the Hill at all that evening.

Joseph W. Coolidge was discharged by the court and sworn; Charles Foster asked Francis Higbee for the key to the office, Higbee hesitated; Foster said he wanted to get a desk that had some valuable papers in it—Foster got the key and went in; did not see him remove the desk, might have removed it and witness not see it, there was no desk burned.

The couneellors submitted the case without plea; and the court discharged the prisoners.