| 634 "Again, the affidavit charges the shooting on the 6th of May in the county of Jackson and State of Missouri, 'that he believes and has good reason to believe, from evidence and information now [then] in his possession, that Joseph Smith was accessory before the fact, and is a resident or citizen of Illinois.' There are several objections to this. Mr. Boggs having the 'evidence and information in his possession,' should have incorporated it in the affidavit to enable the court to judge of their sufficiency to support his 'belief.' Again, he swears to a legal conclusion when he says that Smith was accessory before the fact. What acts constitute a man an accessory in a question of law are not always of easy solution. Mr. Boggs' opinion, then, is not authority. He should have given the facts. He should have shown that they were committed in Missouri, to enable the court to test them by the laws of Missouri, to see if they amounted to a crime. Again, the affidavit is fatally defective in this, that Boggs swears to his belief.
"The language in the Constitution is 'charged with felony, or other crime.' Is the Constitution satisfied with a charge upon suspicion? It is to be regretted that no American adjudged case has been cited to guide the court in expounding this article. Language is ever interpreted by the subject matter. If the object were to arrest a man near home, and there were fears of escape if the movement to detain him for examination were known, the word charged might warrant the issuing of a capias on suspicion. Rudyard (reported in Skin. 676) was committed to Newgate for refusing to give bail for his good behavior, and was brought before common pleas on habeas corpus. The return was that he had been complained of for exciting the subjects to disobedience of the laws against seditious conventicles, and upon examination they found cause to suspect him. Vauhan, Chief Justice 'Tyrrell and Archer against Wild held the return insufficient; 1st, because it did not appear but that he might abet frequenters of conventicles in the way the law allows. 2d, To say that he was complained of or was examined, is no proof of his guilt. And then to say that he had cause to suspect him is too cautious; for who can tell what they count a cause
(page 634) |
