USA > Illinois > Hancock County > Historical encyclopedia of Illinois and history of Hancock County, Volume II > Part 40
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Affidavits were filed and a motion was made to quash the array of the jury on account of the alleged prejudice of the county commission- ers who selected the jurors, and the prejudice and partiality of the sheriff of Hancock County and of his deputies who summoned them, in- cluding the talesmen who were selected and summoned after the commencement of the term. The defendants, by their attorneys, also moved the court for the appointment of elisors to act in the trial of the cause for the reason that the sheriff and his deputies were prejudiced against the defendants, and the coroner of the county was absent from the state.
After hearing the arguments of counsel the court quashed the array, and appointed Thomas H. Owen and William D. Abernathy as elisors to select and summon the jurors and to per- form all such other duties as would be required
by law to be performed by the sheriff and his deputies during the progress of the trial.
On May 22d, the elisors were duly sworn and a venire facias was issued commanding them to summon and return without delay 24 good and lawful men to enable the people and the de- fendants to make up the panel of the jury of 12 good and impartial men to try the cause. The men so summoned were the following: James Carr, Curtis Ingersoll, David Grove, Jeremiah Pearson, James L. Kimball, Simeon Walton, Jesse Griffiths, John Henry, John Slater, Wil- liam Robertson, James Welch, Daniel Prentis, William Smith, Joseph Massey, John F. Weld, Allen McQuary, Joseph Jones, Samuel Mc-Con- nell, Uriah Thompson, George Wade, John Welch, Hezekiah Cain, Hiram Woodworth, and Calvin M. Simmons.
The defendants (that is the five appearing and on trial) were furnished with a copy of the indictment and a list of the jurors and the names of the witnesses intended to be procured against them and were thereupon arraigned and pleaded "not guilty," and for trial put them- selves upon the country.
The following jurors were selected out of the first 24 names summoned : Jesse Griffiths, Jo- seph M. Jones, William Robertson, William Smith, and Joseph Massey.
The panel having been exhausted, another venire was issued, and the following persons were summoned : Isachar A. Jones, James Baird, John McCauley, Daniel Cain, Erastus Austin, Silas Griffiths, Daniel B. Chapman, James Cain, Simeon Pennock, Jonothan Foy, Thomas D. Woolsey, John Huckins, William Printy, Samuel Irwin, William McKay, Levi Doan, Patrick Doyle, Aaron Griffiths, Thomas Ireland, Jr., James Irwin, Henry R. Chittenden, Henry Gar- nett, Samuel White, and Charles Comstock. Out of the second panel of 24 two additional jurors, Silas Griffiths and Jonathan Foy, were selected. The court then issued another venire for 24 men and adjourned until eight o'clock the following morning.
Court convened at eight o'clock on Friday, May 23d. The seven jurors heretofore selected were brought into court. There appeared also, in obedience to the third venire the following persons : James Geddings, Jacob Lionberger, Samuel Cogswell, Edward A. Bedell, Samuel A. Stephenson, Newton Cothern, Frederick M. Wal- ton, Solomon J. Hill, James Galloway, William Griffiths, Samuel Steel, William Sailors, Ami
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HISTORY OF HANCOCK COUNTY
Clarke, Samuel Neff, Jesse Gilman, Thomas Branham, Michael Hilderbrand, William Gaubb, Joseph Lamborth, Joseph Lionberger, Francis Lofton, James Kimbrough, George C. Waggoner and Jabez A. Beebe. Out of this panel four men were selected and sworn, Solomon J. Hill, James Geddings, Frederick M. Walton and Jabez A. Beebe.
The panel of 12 not being complete, another venire for 24 men was issued, all of whom ap- peared except one, James Beam, who was ex- cused as exempt on account of his age. The 24 men were the following: William Metcalf, Jesse M. Taylor, Larkin Scott, Arthur Cannon, Edward Jones, Jonathan C. Wright, William M. Handy, Lewis Ray, Shelby Houston, Peter Comer, Charles M. Thompson, James Beam, Andrew Moore, Gilmore Callison, Derrick Fuller, Richard Cannon, William G. McCants, Squire R. Davis, John Gillmore, John Mackiener, James G. Swan, John P. Haggard, James Currey and Joseph Cravens.
The twelfth juror, Gilmore Callison, was chosen from the last panel of 24 men summoned. Thus 96 men were summoned for examination in the selection of the jury. There were five defendants on trial, each of whom had the right to challenge 20 men peremptorily, that is, with- out assigning any reason therefor. The people had the right under the statute then in force to challenge one-half as many peremptorily. Thus the people and the defendants together could have challenged 150 men without giving any reason for so doing, in addition to those who were subject to challenge for cause. In the celebrated anarchist case, entitled People v. Spies, et al., tried at Chicago in 1886, 981 men were called into the jury box and examined before the jury was selected. Under the law then existing, each of the eight defendants had the right to challenge 20 men peremptorily and the people had the right to challenge as many. The defendants challenged 160, their full num- ber, and the people 52, and all other challenges were for cause.
The jury in the Smith case having been impaneled on Saturday, May 24th, the trial pro- ceeded regularly day after day the following week until Friday, May 30th, on which day the arguments were closed and the jury instructed. The jury retired to consider their verdict at 11:30 in the forenoon, in charge of the two elisors. At two o'clock in the afternoon, the jury delivered in court a verdict finding the
defendants "not guilty." Thereupon the court rendered judgment that the defendants be dis- charged from further prosecution on that indict- ment.
The record shows that on the same day, May 30th, the attorneys for the people failed to ap- pear to prosecute the indictment against these same defendants for the murder of Hyrum Smith, and that the suit was thereupon dis- missed for want of prosecution and the de- fendants discharged.
The evidence on the trial was purely cir- cumstantial. The court instructed the jury that, in such case, admitting all to be proven which the evidence tends to prove, if the jury could make any supposition consistent with the facts by which the murder might have been committed without the agency of the defendants, it was their duty to make that supposition and find the defendants "not guilty." This was practically in accordance with the law as laid down in the textbooks of that day, although the word "supposition" is ordinarily qualified by "reasonable." It was not enough that cir- cumstantial evidence should go to show the defendants' guilt, but it was required to be in- consistent with the reasonable supposition of his innocence. Another instruction given the jury was that, whenever the probability is of a definite and limited nature, whether in the proportion of one hundred to one, or of one thousand to one, or any ratio, was immaterial, it could not be safely made the ground of convicting, for the reason that to act upon it in any case would be to decide that for the sake of convicting many criminals the life of an innocent man might be sacrificed. This was taken from STARKIE, one of the leading jurists of that day whose work on evidence was every- where regarded as authority. A similar instruc- tion, that is, that it would be better for ninety- nine guilty men to escape than for one innocent man to be punished, was taken from the text- books, and was frequently given to juries in criminal cases years ago, but has been con- demned by the court in later years as being calculated to mislead the jury, and upon the theory that the only policy of the law on the subject is that no guilty man should escape and that no innocent man should be punished. But, as the law was stated in text-books and given to juries in the days of the trial of the Smiths, the instructions fairly and impartially stated the law. The court also instructed the jury that,
AARON H. DEWITT
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HISTORY OF HANCOCK COUNTY
in making up the verdict they should exclude from their consideration all that was testified by Daniels, Brackenbury and Miss Graham. It is said that the witnesses Daniels and Bracken- bury dealt largely in the supernatural, and that the testimony of Miss Graham, though she was well-meaning and honest, was contradictory. There being no authentic report of the evidence, it is impossible to form an absolute judgment as to the correctness of this ruling.
But Judge Richard M. Young who presided at the trial had had much experience as a judge, and had held a number of responsible positions otherwise, and there is every reason to believe that he tried this case fairly and impartially as between the people and the defendants. He was admitted to the bar in 1817, was a repre- sentative in the Second General Assembly in 1820-21, was Judge in the Third Judicial Dis- trict for two years beginning in 1825, was Judge in the Fifth Judicial Circuit beginning in 1829, was U. S. Senator from Illinois from 1837 to 1843, and, having failed of re-election, was chosen associate justice of the Illinois Supreme Court in 1843. (At the time the circuit courts were held by the justices of the Supreme Court.) Afterwards he was clerk of the General Land Office at Washington, and in 1850-51 clerk of the House of Representatives at Washington.
In a work entitled Courts and Lawyers of Illinois recently published, it is said of Judge Young that he did not possess great executive power and did not dispatch business rapidly, but that everything which he did was ac- complished thoroughly and without mistakes.
The charge that this trial was a farce is thus answered in The Prophet of Palmyra:
"It has been the custom for sensational writ- ers and others to treat this trial and verdict as farcical and an outrage. It has been charged that the jury, the court, and the people, all knew that the defendants were guilty. If all knew it, it ought certainly and might have been proven. All knew that a double murder had been committed. There were some facts not generally taken into account and not considered by these writers, which tend to show how ex- tremely difficult it was to find out the guilty ones. The Mormons had arrested one Elliott, the two Laws, two Fosters, and two Higbees at Rock Island, charged with the offense; and when the grand jury was in session, the names of about sixty persons were presented to them for indictment. One of these sixty has since
informed the writer that he afterward learned how he had narrowly escaped indictment, al- though at home when the crime was committed. It has since transpired that the evidence be- fore the grand jury was so inconclusive, that they voted first on the whole sixty, and failing to indict, struck off ten and voted again, and so on to the last nine, when the indictment carried. It has also transpired that the bills were found against these nine some as prin- cipals and some as accessories-almost solely on the testimony of the three witnesses whose evidence on the trial the court instructed the petit jury to disregard. It has further been said in disparagement of the jury, that ninety- six men had to be summoned and questioned before the proper number for a jury could be found sufficiently ignorant and indifferent to fill the place. The writer knew, from a personal acquaintance with at least six of that jury, that instead of being ignorant and indifferent, they were men of intelligence, probity, and worth."
EVENTS LEADING UP TO THE EXPULSION OF THE MORMONS
In 1844 Almon W. Babbitt, a Mormon at- torney, and Jacob B. Backenstos, known as a Jack-Mormon, had been elected to the legislature, and General Minor R. Deming had been elected sheriff. These men were unacceptable to the people of the county generally outside of Nauvoo.
On Jan. 29, 1845, the act to incorporate the city of Nauvoo, called the charter, and that part of the subsequent act authorizing Hancock Coun- ty citizens outside of Nauvoo to attach them- selves to the Nauvoo Legion, were repealed, and the circuit court was authorized to appoint a receiver to sell and convey all the property, real and personal, held by the corporation, to collect debts due to the corporation, to appro- priate the proceeds under the direction of the circuit court to the payment of debts due from the corporation, and to pay out the excess under the direction of the circuit court, having regard for the rights of the parties in interest. This repealing act passed the House by a vote of 76 yeas to 36 nays and afterwards passed the Senate by a large majority. Babbitt and Backenstos exerted themselves to the utmost to prevent the passage of the repealing act.
During the winter and spring thieving was prevalent in this and adjoining counties. The
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HISTORY OF HANCOCK COUNTY
Mormons were charged with many of these crimes. Public meetings were held, township committees were appointed to investigate the facts and make reports, and to devise means of redress.
On May 10, 1845, a Mennonite German min- ister and his son-in-law were robbed and mur- dered near Franklin, about 10 or 12 miles from Nauvoo, across the Mississippi River. The real murderers were traced to Nauvoo. Two of them, the Hodge brothers, were tried at Burlington, Iowa, and executed on July 15th. They were defended by two Burlington lawyers and by George Edmunds of Nauvoo. A brother of the two Hodges denounced Brigham Young for not rescuing his brothers, and was assassinated in Nauvoo. No one was arrested or punished for this crime.
On July 4, 1845, Col. Davenport was robbed and assassinated at his home at Rock Island. John Long, Aaron Long, and Granville Young were arrested, tried and hanged for this offense. Judge Fox was arrested but escaped. Birch turned state's evidence and escaped punishment. He was said to have had some connection with the Danite band. The Longs and Fox were three of the witnesses mentioned in an affidavit made on the trial of the Hodge brothers as witnesses by whom they could prove an alibi.
On June 24th General Minor R. Deming, sheriff, shot Dr. Samuel Marshall, county clerk, at the court-house in Carthage as the result of a controversy over some trivial matters of official business. We quote from The Prophet of Palmyra:
"The affair was an unfortunate one, as it caused the deaths of two reputable men and good officers, who, in ordinary times might have been friends, and added greatly to the excite- ment already existing. Dr. Marshall was a strong Anti-Mormon in his feelings and prin- ciples, and had the full confidence of the party ; yet he resolutely refused to sanction any of their unlawful proceedings. He was one of a number in the county-far too few-who believed it better to suffer all the ills resulting from Mormonism, rather than resort to illegal and violent measures for redress.
"General Deming was taken into custody, and the circuit court being in session, was indicted for manslaughter by the grand jury. A continuance was had and he was released on bail. But he was never brought to trial. He retired to his home in the country, where
he was soon afterwards stricken with a con- gestive fever, no doubt brought on or aggravated by excitement, and he died September 10, 1845. He was succeeded in the office of Sheriff by the aforesaid J. B. Backenstos at a special election, by the following vote Backenstos, 2,334; John Scott (Anti-Mormon Democrat), 750."
(The records show that Deming was indicted for murder, not manslaughter.)
It should be stated in this connection that a special term of the circuit court of Hancock County was in session on June 24, 1845 (Judge Richard M. Young presiding), when Dr. Mar- shall was killed, and that an order was made by the court appointing the coronor to act as sheriff during the imprisonment and disability of Minor R. Deming, which order, as appears from the circuit court records, is as follows :
"It appearing to the satisfaction of this Court that Minor R. Deming the Sheriff of Hancock County aforesaid has been arrested and is now in confinement by virtue of a Warrant of Com- mitment issued by George W. Stigall the Coroner of said County-upon a charge of his having murdered one Samuel Marshall late of said County-It is ordered that the said George W. Stigall, So being Coroner of the County of Hancock as aforesaid be and he is hereby re- quired to perform the duties of Sheriff during the imprisonment and disability of the said Minor R. Deming and that he give his attend- ance in this Court accordingly."
THE MORMON WAR
In the autumn of 1845 events occurred which were intended to result in driving the Mormons from the county. On Feb. 9th an Anti-Mormon meeting at the school-house in Green Plains was fired upon by an unknown person. The next night two cabins were burned in a Mormon village in that neighborhood called Morley- Town. During the course of the week following, the whole of this village was destroyed by fire. In the Bear Creek and Green Plains region residences were burned. It is stated that from 100 to 125 houses were thus burned, and their occupants driven away, but that this was ac- complished without physical violence to the occupants. Sheriff Backenstos undertook to raise a posse to put an end to these disturb- ances, but failed. He then resorted to the armed men of Nauvoo for assistance and these soon dispersed the rioters. On Sept. 16th, Lieut.
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HISTORY OF HANCOCK COUNTY
Franklin A. Worrell of the Carthage Grays was killed by some of the Nauvoo posse, and on the 17th Samuel McBratney, one of the incendiaries was killed. By this time Sheriff Backenstos, with his posse, had control of the county. On the 19th he descended upon Carthage with some hundreds of men in search of criminals, as he said, searched houses for arms, dealt roughly with those who were obnoxious to him, leaving 50 men to guard the city when he went away with the main force the next morning.
Sheriff Backenstos and Orrin P. Rockwell were indicted for the murder of Worrell. Back- enstos took a change of venue to Peoria, Rock- well to Galena. Each was acquitted.
On the 16th, Phineas Wilcox of St. Marys township went to Nauvoo on business. He was accused of being a spy, and disappeared. He was never heard of afterwards. Andrew Daub- enheyer, an Anti-Mormon, living in the Camp Creek neighborhood, left Carthage on horse- back for his home on the 20th, and afterwards his body was found buried near an encampment of the sheriff's posse, which he was to have passed on the way home.
Governor Ford sent volunteers to the county under Gen. Hardin.' There came with Gen. Hardin, Attorney-General John A. McDougal, Judge Stephen A. Douglas and Major William B. Warren. On the 27th Gen. Hardin issued a proclamation, commanding the people to keep the peace. His proclamation was backed up with a strong body of troops. Thereupon quiet prevailed. Gen. Hardin visited Nauvoo, and the Mormons agreed to leave the county and state the following spring. Gen. Hardin then withdrew, leaving Maj. Warren, with 100 men, to preserve the peace.
A convention composed of delegates from the nine counties of Adams, Brown, Pike, Schuyler, Marquette, McDonough, Warren, Knox and Hen- derson was held at Carthage on the 1st and 2d days of October and resolutions were passed recommending the acceptance of the proposition made by the Mormons to remove from the state the next spring and to await with patience the time of removal.
(It is interesting to note that the county of Marquette was organized by act of the Legisla- ture on Feb. 11, 1843, and embraced all that part of Adams county which lay east of Range seven (7) West of the Fourth Principal Mer- idian and also one row of sections on the east side of Township one (1) South, Range seven
(7) West, and that the name of this county was changed to Highland by act of the Legislature on Feb. 27, 1847, at which time an additional part of Adams county was attached to High- land. )
On Oct. 1st Gen. Hardin, Judge Douglas, Maj. Warren and Attorney-General McDougal addressed a communication to the first president and council of the church of Nauvoo requesting the facts and intentions as to the proposed removal from the county to be submitted in writ- ing that the same might be laid before the Governor and the people of the state. On the same day this communication was answered by Brigham Young, President, and by Willard Richards, Clerk, stating that four companies of 100 families each were organized for removal, that six companies of 100 families each were organizing preparatory to removal, and that 1000 families, including the Twelve, the High Council, the Trustees and general authorities of the church, were fully determined to remove in the spring, independent of the contingency of selling their property, and that this company would comprise from five to six thousand souls, and that the church, as a body, desired to remove with them, and would do so if sales could be effected' so as to raise the necessary means. This communication asked the assist- ance of all good citizens in the disposal of the property of the Mormons, stating that there were hundreds of farms and 2000 or more houses for sale in the city or county, but assert- ing that they would not sacrifice or give away the property or suffer the same to be illegally wrested from them. It was stated that com- mittees would be appointed for Nauvoo, La Harpe, Macedonia, Bear Creek, and all neces- sary places in the county to give information to purchasers.
In February many of the Mormons, including some of the authorities of the church, crossed into Iowa. As the spring advanced they left from time to time in considerable numbers. About the first of May, 1846, Maj. Warren, under orders from Governor Ford, withdrew his force, which had been quartered at Car- thage all winter and had prudently and firmly discharged their duties. Great concern was manifested, meetings were again held and apprehensions that the danger was not over were expressed, and the Mormon agent sent a letter of inquiry to Governor Ford, who an- swered that he had not been a party to an agree-
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HISTORY OF HANCOCK COUNTY
ment that the Mormons should leave in the spring, but that they would have to go and that the people of the state would not fight for them. Maj. Warren was instructed to muster in his troops and remain on duty. This he did, with headquarters most of the time at the Mansion House in Nauvoo.
It was reported that the Mormons were leav- ing the state in considerable numbers from time to time, but the impression seemed to be prev- alent that large numbers of them intended to remain. It was determined at a public meeting at Carthage to put in force the resolutions passed the preceding October. A force of men assembled at Carthage and marched to Golden's Point where they met certain of the new citizens of Nauvoo, who objected to their coming into the city. The force retired and disbanded.
Afterwards difficulties arose in the north part of the county east of Nauvoo and hostages held at Nauvoo were taken to Quincy on habeas corpus and released on bail, and the Mormon hostages were then set free.
In the meantime many people from a distance, understanding that the Mormons were to leave Nauvoo, flocked to the city in the hope of better- ing their condition, many of them being good people, some of them ruffians, and three of the latter class, Dr. Pickett, Clifford, and Furness, who had detained the hostages at Nauvoo were prosecuted for false imprisonment and robbery. John Carlin, a deputy sheriff of Carthage, hav- ing the writ, arrested Clifford and Furness at Nauvoo, but was resisted and defied by Pickett. It was determined at Nauvoo that Carlin's writ should not be executed and measures were taken to organize for military resistance.
Governor Ford sent Major James R. Parker to the county to defend Nauvoo, stating that he had been informed that an effort would be made to destroy the city. Parker and Carlin came into direct conflict. Proclamations were issued. Carlin announced that he did not ac- knowledge the right of the military to inter- ference and had called out the posse to aid him in serving the writ. Parker answered that Carlin's force was a mob whose aim was to drive the Mormons across the river.
In the meantime some 600 to 800 men were concentrating at Carthage, under the command of James W. Singleton of Brown county. This force consisted of two regiments, Col. Thomas Brockman of Brown commanding one, and Col. Thomas Geddes of Hancock the other. The
Mormons were ready to agree to leave Nauvoo within sixty days, to have an attorney selected to take charge of all writs, and to deliver up the State arms in their possession, and to suspend all hostilities at once. This was Col. Singleton's treaty, but those under him rejected it. Col. Singleton withdrew. Carlin appointed Col. Brockman as commander. The whole force, about 700 men, proceeded toward Nauvoo and camped about three miles from the Temple. There was considerable skirmishing for two days, and some firing of artillery. On the 12th (of October) Brockman and Carlin demanded a surrender, but Major Benjamin Clifford in command, Parker having left, refused to sur- render.
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