| 636 flee from the justice of the State of Missouri, nor has he taken refuge in the State of Illinois.
"The proceedings in this affair from the affidavit to the arrest affords a lesson to governors and judges whose action may hereafter be invoked in cases of this character.
"The affidavit simply says that the affiant was shot with intent to kill, and he believes that Smith was accessory before the fact to the intended murder, and is a citizen or resident of the State of Illinois. It is not said who shot him, or that the person was unknown.
"The Governor of Missouri in his demand calls Smith a fugitive from justice, charged with being accessory before the fact to an assault with intent to kill, made by one O. P. Rockwell, on Lilburn W. Boggs, in this State [Missouri]. This Governor expressly refers to the affidavit as his authority for that statement. Boggs in his affidavit does not call Smith a fugitive from justice, nor does he state a fact from which the Governor had a right to infer it. Neither does the name of O. P. Rockwell appear in the affidavit, nor does Boggs say Smith fled. Yet the Governor says he has fled to the State of Illinois. But Boggs only says he is a citizen or resident of the State of Illinois.
"The Governor of Illinois responding to the demand of the Executive of Missouri, for the arrest of Smith, issues his warrant for the arrest of Smith, reciting that 'whereas Joseph Smith stands charged by the affidavit of Lilburn W. Boggs with being accessory before the fact to an assault with intent to kill, made by one O. P. Rockwell on Lilburn W. Boggs, on the night of the 6th day of May, 1842, at the county of Jackson, in said State of Missouri, and that the said Joseph Smith has fled from the justice of said State, and taken refuge in the State of Illinois.'
"Those facts do not appear by the affidavit of Boggs. On the contrary, it does not assert that Smith was accessory to O. P. Rockwell; nor that he had fled from the justice of the State of Missouri, and taken refuge in the State of Illinois.
"The court can alone regard the facts set forth in the affidavit of Boggs, as having any legal existence. The misrecitals and over-statements in the requisition and warrant are
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