| 631 which he shall act. But Congress has done so. The proof is 'an indictment or affidavit,' to be certified by the Governor demanding. The return brings before the court the warrant, the demand, and the affidavit. The material part of the latter is in these words; viz.: 'Lilburn W. Boggs, who being duly sworn, doth depose and say, that on the night of the sixth day of May, 1842, while sitting in his dwelling in the town of Independence, in the county of Jackson, he was shot with intent to kill, and that his life was despaired of for several days, and that he believes and has good reason to believe from evidence and information now in his possession, that Joseph Smith, commonly called the Mormon prophet, was accessory before the fact of the intended murder, and that the said Joseph Smith is a citizen or resident of the State of Illinois.' This affidavit is certified by the Governor of Missouri to be authentic. The affidavit being thus verified, furnished the only evidence upon which the Governor of Illinois could act. Smith presented affidavits proving that he was not in Missouri at the date of the shooting of Boggs. This testimony was objected to by the Attorney General of Illinois, on the ground that the court could not look behind the return. The court deems it unnecessary to decide that point, inasmuch as it thinks Smith entitled to his discharge for defect in the affidavit. To authorize the arrest in this case the affidavit should have stated distinctly, 1st, That Smith had committed a crime. 2d, That he committed it in Missouri.
"It must appear that he fled from Missouri to authorize the Governor of Missouri to demand him, as none other than the Governor of the State from which he fled can make the demand. He could not have fled from justice, unless he committed a crime, which does not appear. It must appear that the crime was committed in Missouri to warrant the Governor of Illinois in ordering him to be sent to Missouri for trial. The 2d section, 4th article, declares he 'shall be removed to the State having jurisdiction of the crime.'
"As it is not charged that the crime was committed by Smith in Missouri, the Governor of Illinois could not cause him to be removed to that State, unless it can be maintained
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