Pp. 850-852

The terms of the circuit court at this time were held on the third Monday of May and October.  At the October term, 1844, which was the first term after the killing of the Smiths, indictments were found by the grand jury against Levi Williams, Jacob C. Davis, Mark Aldrich, Thomas C. Sharp, William Voras, John Wills, William N. Grover and two others by their surnames of Gollaher and Allen, one indictment for the murder of Joseph Smith, and the other for the murder of Hyrum Smith.  These indictments were returned into court by the grand jury after a five day session, on Oct. 26th.  Hon. Jesse B. Thomas was the presiding Judge.  William Elliott was State's Attorney, J. B. Backenstos was Clerk, and Minor R. Deming was sheriff.

GREGG ⁽¹⁾ says: "Of these Col. Williams had been in command of the Warsaw regiment that had been disbanded on the prairie; Capt. Aldrich was an officer of the same; Davis and Grover were attorneys at law; and Sharp was also an attorney, and editor of the Warsaw Signal."

Certain of the defendants appeared and demanded trial.  The prosecution was not ready.  By agreement the cases were continued until the next term.  It was further agreed that no capias ⁽²⁾ should be issued if the defendants would pledge themselves to appear.  It is said that this agreement was afterwards violated by the prosecution.  The next term of the circuit court began on May 19, 1845.  Richard M. Young was the presiding Judge, James H. Ralston was State's Attorney pro tem., David E. Head was Clerk, and Minor R. Deming was Sheriff.  On this day five of the defendants appeared, viz., Levi Williams, Jacob C. Davis, Mark Aldrich, Thomas C. Sharp and William N. Grover, and entered into recognizance in the sum of $5,000 for attendance in court from day to day during that term to answer the charge of murder with which they stood charged. Josiah Lamborn prosecuted for the people, the State's Attorney being absent.  The attorneys for the five defendants appearing were William A. Richardson, O. H. Browning, Calvin A. Warren, Archibald Williams, Onias C. Skinner and Thomas Morrison.  Richardson was from Rushville, Skinner and Morrison from Hancock, and the others from Quincy.

Affidavits were filed and a motion was made to quash the array of the jury on account of the alleged prejudice of the county commissioners who selected the jurors, and the prejudice and partiality of the sheriff of Hancock County and of his deputies who summoned them, including the talesmen ⁽³⁾ 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 perform 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 ⁽⁵⁾ was issued commanding them to summon and return without delay 24 good and lawful men to enable the people and the defendants 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, William Robertson, James Welch, Daniel Prentis, William Smith, Joseph Massey, John F. Weld, Allen McQuary, Joseph Jones, Samuel McConnell, 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 themselves upon the country.

The following jurors were selected out of the first 24 names summoned: Jessie Griffiths, Joseph 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 [sic] 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 Garnett, 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. Walton, Solomon J. Hill, James Galloway, William Griffiths, Samuel Steel, William Sailors, Ami 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 appeared except one, James Beam, who was excused 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 [Rhea ?], 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, without assigning any reason therefor.  The people had the right under the stature 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 number, 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 proceeded 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 discharged from further prosecution on that indictment.

The record shows that on the same day, May 30th, the attorneys for the people failed to appear to prosecute the indictment against these same defendants for the murder of Hyrum Smith, and that the suit was thereupon dismissed for want of prosecution and the defendants discharged.

The above is a verbatim transcription except for [bracketed] and boldface text, and footnote references shown in parenthesis.

(1) Referring to Thomas Gregg, author of The Prophet of Palmyra;
see:     http://www.solomonspalding.com/docs1/1890GrgA.htm

(2) Capias: A writ or process commanding the officer to take the body of the person named in it, that is, to arrest him; -- also called writ of capias

(3) Talesman: A person called to make up a deficiency in the number of jurors when a tales is awarded.

(4) Elisor: An elector or chooser; one of two persons appointed by a court to return a jury or serve a writ when the sheriff and the coroners are disqualified.

(5) Venire facias:
(a) A judicial writ or precept directed to the sheriff, requiring him to cause a certain number of qualified persons to appear in court at a specified time, to serve as jurors in said court.
(b) A writ in the nature of a summons to cause the party indicted on a penal statute to appear. Called also venire.

Source for the above definitions: Webster's Revised Unabridged Dictionary
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