Vogel'S Video On 1826 Trial

[Dan Vogel]

Glen,

First, it doesn’t matter to me as it shouldn’t matter to you if JS was convicted or acquitted. It has no bearing on JS’s claims if he was guilty of violating a silly law against “pretending” to find lost objects. I’m much more interested in the testimony given at Neely’s examination. But trying to determine what happened is important to historians. There are few who have a good enough grasp of the documents to discuss this subject with, so thanks for responding.

Dan, As far as being a witness, Noble had no need to know the details about the 1826 trial to render a verdict on the statute of limitations issue. He only had to look at the current date of 2 July, 1830 and elementary math, without even knowing the month, would have enabled Noble to conclude that the three year statute of limitations on misdeamenors was well past.

Instead of trying to argue how little Neely had to know, why not concede that he was in a position to know a lot about the 1826 trial. This is his statement:

After 2 Years from the time of Jo.s first trial he appeared in our place bold as a Lion again[.] Jo. was arrested [and] examination had[.] Jo. plead in bar Statue of Limitations[.]Jo was no Sooner Set on terifirma than arrested again brought before me in an adjoining County only 6 miles Distant[.] trial protracted 23 hours[.] the prosecuti[on] was Cond[ucted] by a Gent[leman] well Skil[l]ed in [the] Science of Law[.] proof manifested by I think 43 Witnesses[.]

Now, after 23 hours and 43 witnesses covering the same acts and charges as the 1826 trial, doesn’t place Neely in a good position to know what had occurred? That’s not good historical practice.

Whatever details that Noble received were hearsay. If you can prove otherwise or even provide credible evidence otherwise, please do so.

Hearsay is still good historical information, if it comes from a credible source and Noble is credible. This is standard historical methodology. However, you are assuming his information is coming from hearsay, which isn’t a safe assumption since some of the participants (like Stowell) were the same as appeared before Neely in 1826.

The same goes for Benton. You really need to provide some evidence that Benton was actually at the 1826 proceeding. Elsewise, he is no better than Noble. And actually worse because he most definitely had an axe to grind and did not mind grinding it. But you really need to show by some evidence that Benton was at the 1826 proceeding.

Historians don’t automatically throw out hearsay or even biased testimony, as any historical primer will tell you. Benton and Neely provide what appears to be independent testimony of the same information that happens to be supported by the primary documents. They also happen to be the earliest testimony closer to the event than Purple.

There is another problem with your theory. The charges in the 1830 disorderly person case were for the same activities that Joseph was brought up on in 1826. Here we have a person who was convicted, according to A.W. Benton, but designedly allowed to escape, yet is brought back to Bainbridge by DeZeng from an illegal trip to maybe Colesville? Benton did not bring this up to Noble in 1830, although he declares that he was there (which he did not do for the 1826 examination). Since there is no statute of limitations on jumping bail, why did not Benton bring that up? After all, this is again in the very same Chenango County, and the very same town of South Bainbridge as the 1826 examination by Justice Neely. According to Joseph, Benton was the one who swore out the warrant in 1830.

You apparently have some facts confused. Benton lived in South Bainbridge and Noble lived in Colesville. Benton was present at the first 1830 trial in South Bainbridge, and Neely presided at the second trial in Colesville. However, as I explained in my reconstruction (near the end of the video), DeZeng brought JS back to Neely in South Bainbridge and JS possibly changed his plea to guilty (since he knew he would lose before a Court of Special Sessions), and he managed to work out an off-the-record agreement with the justice. You have to explain why a Court of Special Sessions was called but not held. And it has to be in such a way as to account for JS’s being able to return to South Bainbridge in an open fashion. I also suggested that the conflict between the accounts can be explained because of the irregular manner in which Smith’s case was handled and its ambiguous conclusion (see below).

Let's examine your contention that DeZeng's mittimus was occasioned by Joseph illegally leaving the area while under a recognizance to appear in the upcoming court of Special Sessions. If Joseph had been designedly allowed to escape, as A.W. Benton claimed, that would have been exactly what Neely would have desired, for Joseph to get out of town. It doesn't make sense that Neely would have been willing to work out some kind of private deal with Joseph if he had taken "leg bail" as Noble put it.

Neely didn’t want JS to leave town. He wanted a higher court to decide this unusual case. If as I suggest, Smith was brought back to Neely on his way to jail and changed his plea to guilty, it was up to Neely to decide what to do. I don’t think you can say that was his intention all along.

On the designedly allowed to escape: I questioned that claim based on JS’s ability to return to town and get married. Benton and Purple reported only what they believed happened based on their incomplete knowledge. I suggested Purple after fifty years only remembered that JS was not jailed or fined and that a Court of Special Sessions was never held. In other words, nothing came of it. So to make sense of that memory he assumed Stowell’s testimony had convinced Neely not to charge JS. However, the court record indicates otherwise. The court records should be used to correct Purple’s memory, not the other way around. Besides, Purple’s representation isn’t consistent with the legal theory Neely was operating under.

On Benton, I suggested he only knew Smith had left town and wasn’t privy to JS being returned. But having participated in the first of JS’s 1830 trials, he also knew JS had been “condemned”.

A mittimus is an order to take a person to jail. It is not a warrant. If Joseph had indeed been on the lam, upon hearing about it, Neely would have issued a bench warrant for breaking the terms of his bail, or whatever and had a constable serve it.

I see nothing in the county bills to suggest that both a warrant and a mittimus needed to be issued. Webster’s 1828 Dictionary: “mittimus ... warrant of commitment to prison.” The order was for the Constable to take Joseph Smith to jail, whether he is in DeZeng’s custody at the time the mittimus was issued is irrelevant to his executing it. Note the language of People v Joshua Martin, 1824: “Taking him into Custody on a mittimus for [want?] of Bail ... travel 24 m[iles].” Indeed, Constables were allowed the charge 12 ½ cents for “Taking a defendant into custody on a mittimus,” and a separate fee for “Conveying a person to gaol, twelve and an half cents, if within one mile, and for every mile more, going only, six cents.” (1813:27) It seems to me that a mittimus or a “general warrant of commitment” (made out to both the constable and jailor) gave DeZeng authority to take JS into custody and convey him to jail, especially in a no bail situation (see New Conductor Generalis, 92).

Since this mittimus was not issued between arrest and arraignment, as you contend (see my reasoning below), it must relate to either the time awaiting the forthcoming Court of Special Sessions or, as I suggest, JS’s non-appearance. However, since JS was apparently recognized along with three witnesses, there was no need for a mittimus, holding him for two days and a night, or traveling ten miles.

I do not agree with you that no second mittimus was required if Joseph was bound over for trial. He was brought before Justice Neely on a warrant took out, evidently, by Peter Bridgeman. Neely could have dismissed the warrant there, but he evidently decided to have a hearing on the matter. Joseph evidently was ordered to be held until the witnesses could be subpoened. That would generate the mittimus we have on record. Joseph was held by DeZeng, somewhere for two days and a night. DeZeng had to take Joseph somewhere to hold him. It was not Norwich because it is more than ten miles from South Bainbridge. Just where Joseph was held is not noted. I cannot find a record of any gaol being in South Bainbridge. But Joseph was taken somewhere and held for two days and a night.

In reviewing Mike Marquardt’s 59 pages of typescripts of the 1820-1830 Chenango County bills, I find no example of mittimus being issued before an examination, only after. That’s likely because justices in small towns could operate quickly. (The right to a speedy trial was easier.) There was no need to issue a mittimus between arraignment and examination when they occur all in the same day. Both 1830 trials took just one day, a very long day that lasted well into the night to be sure. A two day delay between arraignment and examination would be highly unusual indeed. But there is another problem with your reconstruction.

The court record is dated Monday, 20 March 1826. I assumed the arrest was on 19 March and that DeZeng held JS overnight and attended prisoner during the trial, which would be similar to other cases DeZeng mentions. I thought Sunday was possibly a problem, but I knew of a record of a Sunday arrest (for felony). In reviewing the law books, I learned that warrants could not be served on Sundays except in felony and other exceptional cases. This information is problematic for your assertion that DeZeng was holding JS for two days and a night, which would rule out Saturday as well as Sunday.

So it now seems likely that JS was arrested, arraigned, and examined on the same day, just as he would be in 1830, and that the two days and one night with DeZeng could be the day of trial plus taking him on the mittimus ten miles away. This seems to support my suggestion that DeZeng took JS into custody a second time with the view of taking him to jail.

In the Chenango bills, whenever a destination is mentioned in connection with mittimus, it is always Norwich or mileage of 23-26 miles, except in JS’s case. Consider the unusual wording of DeZeng’s entry: “10 miles travel with Mittimus to take him.” Under your theory, one would expect: “Taking him 10 miles on mittimus.” However, it reads like warrant and arrest with view to take him to prison: “10 miles travel with warrant of commitment to take him [into custody].” I could be wrong, but I find no reason why it can’t be read that way.

Another problem with your theory that Neely’ mittimus was issued between arraignment and hearing, is the requirement that a commitment be preceded by a conviction—not a final judgment but reasonable cause to believe the prisoner guilty.

A commitment in execution must be preceded by a conviction, and the mittimus must state that the defendant was convicted of the offence imputed to him; merely to state that he was charged with it is insufficient, and the party may be discharged on habeas corpus.—John A. Dunlap, The New-York Justice: Or, A Digest of the Law Relative to Justices of the Peace (New York, 1815), 73.

In the form of the mittimus it is to state: “[John Doe and others] convicted of the said [offense], by my own view, testimony and record, commanding you in the name of the people of the state of New-York to receive them ... into the said gaol.” (Ibid., 450).

None of the required paperwork for binding a person over for the next scheduled court of "General Sessions" or a called court of Special Sessions. I really do not think that a Special Sessions court was planned, despite DeZeng's note about noticing two justices. The fees for the Joseph Smith proceedings were just a part of several sets of fees that he was submitting a bill for. There is a fee for "noticing justices" just before the item concerning serving Joseph Smith with a warrant. Was it part of the Joseph Smith case? Or was it for the preceding case? Were all of the items in chronological order? Who knows?

I’m not sure how “noticing justices” in the preceding case can explain away the entry in JS’s case. DeZeng’s “Notifying two Justices” fits Neely’s recognizing JS and three witnesses. If you have a theory that requires you to change, dismiss, or cherry pick the data, it might be wrong. Perhaps your bias is getting in the way? The theory that can explain most of the data without creating ad hoc escapes from disconfirming evidence should be preferred until a better one comes along.

As for the published records, I am saying purported trial record because we do not have the original manuscript. We do not know if it had been altered in any manner, if anything has been left out or added. That was the point that I was making. If it was from Purple's trial notes, as you speculated, then Purple's notes about the outcome could easily have been removed and the ending that is currently on record could have been inserted. That is a very real possibility, since the recorded ending is diametrically opposed to the one that Dr. Purple asserted.

If we don’t know that it was altered, you can’t say it was. It’s easier to doubt Purple’s memory, than to speculate about a grand conspiracy involving forgery by some unknown person, involving just the part you don’t like, that just happened to conform to the two earliest accounts. Of the two theories under consideration, yours is the least parsimonious.

I really disagree with your attempt to paint the "And therefore the court find the defendant guilty" to equate with Neely finding that there was enough evidence to believe Joseph was guilty and bind him over for trial at the next scheduled court with cognizance over the matter. That is really stretching the logic really thin. I know of no precedent for such a conclusion. Neely had the authority to try Joseph on the matter himself. He did not have to bind him over and could have held a trial rather than an examination. But he had probably already had a conversation with Josiah Stowell and realized that this very respected man's testimony would result in an acquital. He had to do something, since a warrant had been issued and Joseph was already in some sort of custody, so he pulled in his horns and held his examination.

I agree. I offered that argument (which some critics have given) as a possibility in response to Hendengren’s argument that it was a preliminary hearing that could not pronounce guilt. That wasn’t the position that I favored. I sided with Madsen that Neely had authority. However, Neely’s record reads like preliminary hearing in having JS examined first and not upon oath. That, along with Neely’s recognizing JS and three witnesses and DeZeng’s notifying two justices, fits with preliminary hearing—although, as I said, Neely had authority to pronounce judgment. So, besides claiming forgery, how do we explain the judgment of guilty? Neely had authority to write it, but was conducting a preliminary hearing and planning a Court of Special Sessions. Madsen suggested Neely changed his mind about the Court of Special Sessions. OK. Why? If he changed his mind about that, he also changed his mind about the preliminary nature of his hearing. He was also at liberty to write his verdict of guilty. Thus my theory explains this apparent contradiction.

One thing is for sure, Joseph went free. The court levied absolutely no discipline against him. There was no conviction.

Well, it was an unofficial conviction with no real punishment.

[Dan Vogel]

If you could supply a transcript as standard with more of your videos it would be really helpful. I'm not really much into videos and podcasts and much prefer to read peoples research. I'm still a little old fashioned like that.

I've tried to watch a few of your videos as you seem to do some interesting stuff. But it's just a little challenging to follow in video form.

Yes. Can't do it right away though. I plan to make them all available in as many forms as I can.

[Dan Vogel]

Now there's a Tui Billboard moment.

The useful thing about a video, like a podcast, is that it can't be readily excerpted and doesn't have footnotes. IOW, it's ideal for propagating a POV, and has the added advantage of not making examination of its claims too easy.

If you really had confidence in the strength of your argument, I'm sure we'd see it in print.

Just so you know: the 1826 "trial" was a preliminary hearing, not a trial, and Joseph wasn't convicted, he was acquitted.

Regards,

Pahoran

Most of what I'm doing has already been published in various places. The first idtem in the credits at the end gives the published source that the video is based on.

[Glenn101]

To All Who May Be Following This Series, However Languidly, please do not label Dan, as an anti-Mormon. Dan is a critic of Mormonism and Joseph Smith, but his criticisms do not reflect an attitude anything like those I would consider anti-mormon. Leave those appelations for the Dr. Scratch's od this world. Dan and I disagree on many if not most things LDS, especially concerning Joseph Smith. But he keeps his remarks focussed on the issues and does not make anything personal, although I believe that he may become slightly frustrated at my totally cussed hardheadedness.

Dan, I am not going to respond point by point to your last critique of my last critique of your last critique. There are too many directions to go at once.

I want to concentrate on just a couple or three items right now, and if we can get past those, maybe we can go a bit further.

We are going to have to agree to disagree on the reliability of Noble and Benton as reliable witnesses. It is true that Noble's account agrees with benton's account. However, that is to be expected, since Benton was the one that King was getting his information from. Hearsay information is no better than the one providing the information. Aside from the fact that Benton was far from a neutral witness, he himself never said that he was at the 1826 trial. And, as I previously noted, Benton's memory was worse in 1831 than Purple's was in 1877. Purple was premature by a moth in 1877. Benton could only get within a year or two in 1831.

King's testimony is no better than that of Oliver Cowdery. Cowdery was not there either, but at least he got his information from someone that everyone agrees was there, Joseph Smith.

Neither of those non-witnesses are hostorically better than a witness who actually was at the proceedings. You have doen nothing to impeach Dr. Purple's actual testimony. That is your first order of business. You must show that historically, Dr. Purple's account does not square with the facts of the case.

First of all, you seem to be making a lot of DeZeng's bill for noticing two justices, believing that must indicate that Neely was requesting a Court of Special Sessions with two other justices. When such a session was requested, the requestor, supposedly Neely in this case, would have certified to those justices the necessity for the court of special sessions. However, there is no fee recorded in this case for "Certifying the cause of commitment to other magistrates to form a court of special sessions twelve and a half cents", as noted in the " The Revised Statutes of the State of New-York" 1828 to 1829, Volume 2.

As noted in the same Volume, a justice's fee for issuing a mittimus "for want of bail" was 19 cents. In order for such a mttimus to be issued, the justice must first determine that a person under arrest indeed could not make bail.

As to your belief that a warrant could not be served on Sunday, I would like to quote a section from "A Treatise on the Powers and Duties of Justices of the Peace and Town Officers in the State of New York, by George C. Edwards, 1836" "An arrest may be made in the night as well as in the day though by statute arrests on Sunday on civil process are prohibited yet the cases of breach of the peace or apprehended breach of peace and the apprehension of persons charged with crimes misdemeanours are excepted in these cases therefore an arrest be made on that day 1 Rev Stat 675 sec 69". True, this was 1836, not 1826, so maybe that had changed. But it would make sense of DeZeg's bill for keeping Joseph 2 days and 1 night.

As to your statement that the committment orders that you read were for jail, mainly in Norwich, those would more than likely would be for post conviction committments to gaol, prison, or whatever. However, the mittimus that Neely issued as noted in was the 19 cent "for want of bail" variety and not a post-conviction committment to jail. After further reading in the pertinent documents, I found that indeed, in the case of a person who escaped from custody or broke his/her recognizance by leaving the area, the justice would issue a freash warrant to have the person apprehended and brought back before the justice to be dealt with.

Under this scenario, at least a second warrant would be required. In every case that I have reviewed, a mittimus was issued for a person already in custody. I have not read a case where a mittimus was issued in lieu of a warrant for an officer to apprehend a person and then take him to jail. Can you provide a citation for one?

About those recognizances. I found that if a justice decided that a defendant was not guilty and that the plaintiff(s) had lodged the complaint maliciously, that the complainant(s) could be held responsible for the costs and be placed on recognizance(s) to pay those costs? After Josiah Stowell's testimony, Justice Neely was getting a different picture. Imagine the consternation of Bridgeman and company when, instead of seeing Joseph get his comeuppance, he was alowed to walk free, and they had to pay the costs of the proceeding?!?!

Glenn

Edited April 3, 2013 by Glenn101

[stemelbow]

This is a great discussion and one which I hope continues for a bit more.

The issue i continue to have as I try to grasp this is, it doesn't seem to me that Joseph Smith ever claimed to be able to find the treasure for Stowell. It's almost as if Stowell who heard of Joseph's story about an angel and gold plates, decided to use him as part of the adventure just in case Joseph was able to help them find it through spiritual or magical means.

Joseph was 18 or 19, right? What really motivated Stowell to seek after him?

[USU78]

Just so you know: the 1826 "trial" was a preliminary hearing, not a trial, and Joseph wasn't convicted, he was acquitted.

Acquittal would require trial as well. What had to have been found was that there was insufficient evidence to proceed towards trial. Under such circumstances, had JSJr really been charged for his arrest and the expenses of keeping him for a couple of days, it would have been error, and he would have had a claim against the County for reimbursement.

The County, through its JP, would not have been so foolish as to have insisted upon witness, etc fees being imposed upon an accused. Perhaps the fees for his own witnesses brought to his Examination/Preliminary Hearing, but not the County's witnesses or jail/bailiff/deputy service, etc fees.

[Dan Vogel]

To All Who May Be Following This Series, However Languidly, please do not label Dan, as an anti-Mormon. Dan is a critic of Mormonism and Joseph Smith, but his criticisms do not reflect an attitude anything like those I would consider anti-mormon. Leave those appelations for the Dr. Scratch's od this world. Dan and I disagree on many if not most things LDS, especially concerning Joseph Smith. But he keeps his remarks focussed on the issues and does not make anything personal, although I believe that he may become slightly frustrated at my totally cussed hardheadedness.

Thanks for that charitable assessment. I’m not necessarily trying to change your thinking, but using the clash of ideas as a means of teasing out information from these documents.

We are going to have to agree to disagree on the reliability of Noble and Benton as reliable witnesses. It is true that Noble's account agrees with benton's account. However, that is to be expected, since Benton was the one that King was getting his information from.

That comment surprises me since I don’t know what it is based on. I read them as independent witnesses in different counties, each in a good position to know something about the 1826 trial.

Hearsay information is no better than the one providing the information. Aside from the fact that Benton was far from a neutral witness, he himself never said that he was at the 1826 trial. And, as I previously noted, Benton's memory was worse in 1831 than Purple's was in 1877. Purple was premature by a moth in 1877. Benton could only get within a year or two in 1831.

It’s not a test of memory since Benton may not have been there and Noble certainly wasn’t. It’s a question of Purple’s memory since you had asserted he was using his notes in 1877. He wasn’t. In weighing historical evidence various factors are considered and eyewitness doesn’t always trump hearsay. Benton and Noble are reporting closer to the time of receiving their information, and their information undoubtedly came from their participation in the 1830 trials. That puts them in a good position to know that facts, especially since those facts were crucial to Smith’s defense in 1830.

King's testimony is no better than that of Oliver Cowdery. Cowdery was not there either, but at least he got his information from someone that everyone agrees was there, Joseph Smith.

JS had the most motivation to be dishonest about the outcome of the trial. His embarrassment is most apparent when he tries to downplay his money digging as a one-time event with Stowell. He never dealt with his years as a treasure seer honestly.

Neither of those non-witnesses are hostorically better than a witness who actually was at the proceedings. You have doen nothing to impeach Dr. Purple's actual testimony. That is your first order of business. You must show that historically, Dr. Purple's account does not square with the facts of the case.

I have already mentioned that Purple’s account is contradicted by the trial record. Not only for the concluding statement about guilt, but also pertaining to the part of the disorderly persons statute that interested Neely. His record dwells on the “pretending” aspect of that statute; that is, persons pretending to find lost objects and practicing “like crafty science” and therefore Stowell’s testimony was material to the offense. The case had nothing to do with what Stowell “believed” about JS’s gift of seeing treasures “fifty feet below the surface of the earth.” Why would it be necessary to “impeach” Stowell’s testimony? And how would Purple know when JS left town? Purple was guessing to fill gaps in his memory.

First of all, you seem to be making a lot of DeZeng's bill for noticing two justices, believing that must indicate that Neely was requesting a Court of Special Sessions with two other justices. When such a session was requested, the requestor, supposedly Neely in this case, would have certified to those justices the necessity for the court of special sessions. However, there is no fee recorded in this case for "Certifying the cause of commitment to other magistrates to form a court of special sessions twelve and a half cents", as noted in the " The Revised Statutes of the State of New-York" 1828 to 1829, Volume 2.

Your expectation that there be a corresponding provision in Neely’s itemization for certifying two justices is a legitimate point. Justice’s fees for 1813 Laws (2:22-23) do not list charges for certifying other justices, although the Chenango County legal records for 1826 show such a charge. Such a charge would go with the recognizances of witnesses, or rather the recognizances would cause us to look for certifying two justices. As I see it, this would raise the question of why Neely didn’t list it rather than providing a reason for dismissing the Special Sessions. It might have something to do with the court not being held, or canceled by Neely in his agreement with JS. If Neely had listed it, it would have raised questions in Norwich when two other justices didn’t bill for it.

As noted in the same Volume, a justice's fee for issuing a mittimus "for want of bail" was 19 cents. In order for such a mttimus to be issued, the justice must first determine that a person under arrest indeed could not make bail.

Right, and that would be done at the preliminary hearing. I have a problem with a mittimus being issued between arraignment and examination.

As to your belief that a warrant could not be served on Sunday, I would like to quote a section from "A Treatise on the Powers and Duties of Justices of the Peace and Town Officers in the State of New York, by George C. Edwards, 1836" "An arrest may be made in the night as well as in the day though by statute arrests on Sunday on civil process are prohibited yet the cases of breach of the peace or apprehended breach of peace and the apprehension of persons charged with crimes misdemeanours are excepted in these cases therefore an arrest be made on that day 1 Rev Stat 675 sec 69". True, this was 1836, not 1826, so maybe that had changed. But it would make sense of DeZeg's bill for keeping Joseph 2 days and 1 night.

The sources I found relative to this issue are:

No person, upon the first day of the week, commonly called Sunday, shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, judgment or decree, except in cases of treason, felony, or breach of the peace; but the service thereof shall be void, and any person so serving or executing the same, shall be liable for damages at the suit of the party grieved.—John A. Dunlap, The New York Justice: Or, a Digest of the Law Relative to Justices of the Peace (New York, 1815), 179.

The same is stated in New Conductor Generalis (1825), 201, 389. So this is a problem for your interpretation. This means that the arrest and trial probably occurred on the same day. It also means that DeZeng’s two days one night attendance with prisoner wasn’t between arrest and arraignment, but was likely the day of trial and in association with the 10 miles travel with mittimus.

As to your statement that the committment orders that you read were for jail, mainly in Norwich, those would more than likely would be for post conviction committments to gaol, prison, or whatever. However, the mittimus that Neely issued as noted in was the 19 cent "for want of bail" variety and not a post-conviction committment to jail. After further reading in the pertinent documents, I found that indeed, in the case of a person who escaped from custody or broke his/her recognizance by leaving the area, the justice would issue a freash warrant to have the person apprehended and brought back before the justice to be dealt with.

The point I was making was that when a constable took someone on a mittimus, I found no evidence to suggest that they were taken anywhere else besides Norwich (except when paupers were returned to their last place of residence). This was in response to your argument that DeZeng took JS ten miles to hold him somewhere until trial. Most likely DeZeng would have held Smith in his own house or the local tavern, where the trial most likely took place. JS said the constable kept him in the upper room of the local tavern in South Bainbridge in 1830. Purple said in 1826 there was but one store and one tavern in the town.

On warrant for escape or non-appearance, I couldn’t find anything that would resolve mittimus vs. bench warrant issue. An escapee could be recaptured on the authority of the original warrant.

Under this scenario, at least a second warrant would be required. In every case that I have reviewed, a mittimus was issued for a person already in custody. I have not read a case where a mittimus was issued in lieu of a warrant for an officer to apprehend a person and then take him to jail. Can you provide a citation for one?

I do not have an example. Nor can I find an example of escape or non-appearance in the Chenango County records. more research needs to be done on this aspect of my reconstruction. If I’m mistaken about mittimus being sufficient to take Js into custody, then I’m inclined to apply it to taking JS into custody awaiting the Court of Special Sessions, during which time an off-the-record agreement was worked out. Still, the ten miles travel with JS to some unknown destination doesn’t seem reasonable if he was holding JS for trial in South Bainbridge. I favor this over your theory that the mittimus represents holding Smith between arrest and arraignment, which is problematic for the reasons stated above with regard to Sunday and ignoring the recognizances and notifying two justices. So far, I don’t find your explanations for those items persuasive. If you have more information regarding those items, I would like to hear it.

You might find the following item from Chenango County records of interest regarding your suggestion that a mittimus could be used by a Constable to hold a prisoner. People v Major Dalton, 20-22 Sept. 1828. Warrant issued by William Banks on 20 Sept. 1828, Saturday. Warrant served on 22^nd, Monday, by Constable Henry Redfield. Banks issued “Commitment for want of surety 0.19. Redfield’s bill reads:

22 To Serving peace Warrant on Major

Dalton and attending the Examination 1 day 2.—

taking him on Warrant of Commitment

& keeping him over night and until he

procured bail 1[.]50

Banks adds to him bill, evidently for 23^rd although under 22^nd: “Recognizance with one Surety 0.25.” Needless to say, if the surety was not obtained Dalton would have gone to gail.

About those recognizances. I found that if a justice decided that a defendant was not guilty and that the plaintiff(s) had lodged the complaint maliciously, that the complainant(s) could be held responsible for the costs and be placed on recognizance(s) to pay those costs? After Josiah Stowell's testimony, Justice Neely was getting a different picture. Imagine the consternation of Bridgeman and company when, instead of seeing Joseph get his comeuppance, he was alowed to walk free, and they had to pay the costs of the proceeding?!?!

I’m not aware of that use of recognizance. Besides, it says “recognizances of witnesses”, not plaintiffs. Plus one wouldn’t expect Neely to be billing the county for the costs if what you described took place. The court record gives the distinct impression that it wasn’t going well for the one “pretending” to find lost objects. If what you assert were true would Neely have copied Purple’s notes adding “pretended” six times, including in his examinations of JS and Stowell? I don’t think so. Those were inserted to show JS had violated the disorderly persons statute.

[Glenn101]

Dan, can you point me to where I might find a digital copy of the 1825 "New Conductor Generalis". I have been unable to find even a reference to it. The latest edition that I can find a copy of and reference to is 1819.

Thanks,

Glenn

[Dan Vogel]

Dan, can you point me to where I might find a digital copy of the 1825 "New Conductor Generalis". I have been unable to find even a reference to it. The latest edition that I can find a copy of and reference to is 1819.

Thanks,

Glenn

Glen,

Sorry, the copy I'm using is 1819 as well. I got the date confused with Waterman's Manual.

[Glenn101]

Dan. It appears that you are correct that in 1826 New York Statutes did not allow the serving of a warrant on Sunday except for treason, felony, or breach of the peace.

From the Revised Statutes of New York, 1829, Volume 1

69 No writ process warrant order judgment decree or other proceeding of any court or officer of justice shall be served or exe cuted upon the first day of the week called Sunday except in of breach of the peace or apprehended breach of the peace or for apprehension of persons charged with crimes and misdemeanors the violation of any of the provisions of this and the preceding Article and except where such service shall be specially authorised by law The service of any such process or proceeding in all other cases shall be utterly void and shall subject the party offending to damages at the suit of any person aggrieved 93

The 93 References 2 RL 195, P 5 which is the Laws of the State of New York, 1813. That section states:

"V And be it further enacted That no person upon the first day ot the week commonly called Sunday shall serve or execute or cause to be served or executed any writ process warrant order judgment or decree except in cases of treason felony or breach of the peace but that the service thereof shall be void and any person so serving or executing the same shall liable for damages at the suit of the party grieved."

So, it does not appear that the exception for "crimes and misdemeanors was not added until 1827 or 1828 and published in the 1829 "Revised Statutes of New York", Volume 1.

However, it might be argued that a justice could have had someone arrested to prevent a breach of the peace, that language itself was not added until the same time frame og 1827 and 1828. And, after considering the matter a bit, I don't think that the actual day of Joseph's arrest is of vital importance, but it is of interest histotically.

To me, the more important issue is the actual disposition of the case, i.e. was Joseph declared guilty or discharged? After reviewing your arguments, it appears that you actually are advocating for a discharge.

On the surface, it would appear that we not only have a dichotomy between Dr. Purple's account and the information from the Emily Pearsall document, we have a trichotomy, a tension between thoe two accounts and the information gleaned from the bills of Constable DeZeng and Justice, Neely which could well indicate that at some point Justice Neely had contemplated holding a court of Special Sessions to consider the matter.

There are some questions that could be asked of that because absolutely none of the extant testimony mention that as a possibility. But I am not going to categorically deny it as a possibility. The possibility does exist.

The testimony of A.W. Benton and Joel K. Noble would argue against a Court of Special Sessions being called for by Justice Neely. Their testimonies argue for a conviction, but also allowing Joseph to escape. I think that we can safely discount those testimonies.

Noble's account is second or third hand at best, since it is pretty much not in dispute that he was not at the 1826 proceedings. As I noted earlier in another post, I am pretty sure that he obtained his information from A.W. Benton. Joseph Smith said that Benton was the one that swore out the warrant in June of 1830 that resulted in the trial at South Bainbridge. Joseph also stated that during the trial, his prosecutors went to Colesville and swore out another warrant on the same charges. One of those prosecutors very likely was Benton. And nowhere has Benton intimated that he was at the 1826 proceeding. Whatever their testimonies, they were no more than hearsay, and actually are inimical to your own position that a Court of Special Session had been called for. Neely would not have called for a Court of Special Sessions after a conviction.

It is hardly likely that Constable DeZeng, or any other constable there, would have "designedly allowed him to escape" since constables could be prosecuted for either the negligent or voluntary escape of a prisoner. Noting the level of acrimony that was attendant with a couple of the witnesses, especially Peter Bridgeman, it does not seem likely that Bridgeman would have allowed something like that to go unchallenged.

I am going to discuss the Emily Pearsall document next. I really do not think that it is a reliable document as to the actual testimonies reproduced or the final dispostion of the case.

Let us examine the disposition that the Pearsall document presents. "and thereupon the court finds the defendant guilty". I do not buy, as I stated in an earlier post, that this statement only indicates that Justice Neely was only indicating that he believed that Joseph was guilty but was going to call a Court of Special Sessions to try the matter.

This is untenable for two reasons. 1. That contention does violence to the plain meaning that is evoked by the phrase "finds the defendant guilty," and 2. Neely had the authority to either find Joseph guilty on the spot or to discharge him, with no Court of Special Sessions needed.

A court of Special Sessions could have been contemplated originally and the justices noticed. It certainly was never held. It could very well have been because Justice Neely did not originally know exactly what Joseph would charged with and envisioned soemthing more severe than a misdeamnor charge.

Here is an excerpt from "A New Conductor Generalis" of 1819:

"II. Special Sessions. If any petit larceny, misdemeanor, breach of the peace, or other Criminal offence, under the decree of grand larceny, be committed within any of the counties of this state (the city and county of New- York excepted) and the person charged therewith on oath before &nj justice of the peace shall not forthwith give good and sufficient bail to appear and answer at the next court of general sessions of the peace to be held in and for the said county, such person shall be committed to gaol, or to the custody of a constable of the town where said offender was taken ; amd in case such offender shall not give bail as aforesaid, within forty-eight hours after being so committed, it shall then be lawful for the justice by whom he was committed, to certify the cause thereof, to any other two justices of the said county and require them to associate with him to try such offender. 2 JV. B. L. 507, 8."

That sections suggests a couple of reasons that a Court of Special Sessions was never held. 1. The charge of being a disorderly person certainly did not rise to the degree of grand larceny. The charge of being a disorderly person was triable before one justice alone. 2. Josiah Stowell had agreed to stand Joseph's bail and Bridgeman and company urged Neely to go ahead and have the trial, examination, or whatever one wishes to call it.

I am not saying that this was the case, just offering plausible scenarios.

Justice Neely did not submit a bill for the certification, as I noted in a previous post. As I noted (and as did Truman Madsen in his article on the legal setting of the trial), the required paperwork documenting a conviction was never submitted. At least, no record of it has ever been found. More telling than that, even, is the fact that Justice Neely's bill did not include a fee for "drawing up a conviction .... 37 1/2" as delineated in the "A New Conductor Generalis" of 1819.

Also, if Joseph had actuallybeen convicted in 1826, this fact would have come up in the 1830 trial in South Bainbridge and that trial been halted because of the double jepoardy clause in the U.S. Constitution. I doubt that the records had been lost by that time.

All of the above goes to my belief that the "and thereupon the court finds the defendant guilty" phrase in the Pearsall document was spurious, added by a person unknown to discredit Joseph.

I actually question whether the document was actually from Neely's docket book. Wmily Pearsall was born in 1833, several years after the events took place. Neely was living in Onondaga County, New York by 1830 where his son Henry Adams, was born. New York statutes required that the docket book(s) of a Justice of the Peace be deposited with the town or city clerk when the Justice vacated his office. I have not been able to find when this was actually codified, but it seems reasonable to assume that the courts would want to keep those records because they were considered legal documents. Therefore, it is very possible that the Pearsall document was not from Neely's actual docket book, but rather from notes that he had of his various legal exertions as a justice of the peace.

In either case, the suspicion that someone had purposely changed or inserted a statement of statements on the Pearsall document are entirely warranted. The fact that the original document is no longer available and evidently never publicly displayed for verification may or may not be cause for skepticism. Of course, it is to me. As it is, handwriting cannot be verified and the document examined for erasures, insertions etcetera. It's accuracy and completeness as a record is suspect on many levels.

But I think that leaves us, logically, with the Court of Special Sessions and Purple's statement that Joseph was discharged. And, they are not mutually exclusive. As noted, a Court of Special Sessions could have been contemplated. It was never held, as we both have noted. The why we will probably never know. Neely may have given Joseph a verbal dressing down and extracted a promise that Joseph would discontinue any more "glass looking." Joseph had indicated a desire to distance himself from it in his examination. In any instance, whether he had contemplated a Court of Special Sessions or not, Justice Neely discharged Joseph.

Glenn

[Dan Vogel]

It appears that you are correct that in 1826 New York Statutes did not allow the serving of a warrant on Sunday except for treason, felony, or breach of the peace. ...

So, it does not appear that the exception for "crimes and misdemeanors was not added until 1827 or 1828 and published in the 1829 "Revised Statutes of New York", Volume 1.

However, it might be argued that a justice could have had someone arrested to prevent a breach of the peace, that language itself was not added until the same time frame og 1827 and 1828. And, after considering the matter a bit, I don't think that the actual day of Joseph's arrest is of vital importance, but it is of interest histotically.

It does mean that DeZeng’s traveling 10 miles with mittimus as well as his attending prisoner two days and one night come after JS’s appearance before Neely, not before. I’m glad this has come out in my discussions with you. You never know what piece will solve the puzzle, or at least narrow possible interpretations.

To me, the more important issue is the actual disposition of the case, i.e. was Joseph declared guilty or discharged? After reviewing your arguments, it appears that you actually are advocating for a discharge.

Sort of, yes, although I’m defending Neely’s right to inter into his record JS’s guilt. It was an off-the-record agreement that kept the young Joseph from having a record.

On the surface, it would appear that we not only have a dichotomy between Dr. Purple's account and the information from the Emily Pearsall document, we have a trichotomy, a tension between the two accounts and the information gleaned from the bills of Constable DeZeng and Justice, Neely which could well indicate that at some point Justice Neely had contemplated holding a court of Special Sessions to consider the matter.

Both Neely’s record (Pearsall document) and DeZeng’s bill (discovered by Walters) seem to point to a Court of Special Sessions (i.e., Neely’s recognizance of defendant and 3 witnesses and DeZeng’s notifying two justices), and therefore Purple’s memory is challenged by the historical documents, which should take priority.

There are some questions that could be asked of that because absolutely none of the extant testimony mention that as a possibility. But I am not going to categorically deny it as a possibility. The possibility does exist.

True, but the court record and bills are more easily harmonized with Benton and Neely. They heard JS was “condemned” by Neely, which was true, but that JS was allowed escape punishment by leaving town at Neely’s suggestion, which was also true. JS’s “honorably acquitted” is only an exaggerated bending of the truth, but Purple’s memory was playing tricks on him.

I don’t think there is ever going to be a perfect fit, but any explanation that doesn’t include Neely’s calling a Court of Special Session is going to be the least favored. Once that is acknowledged, two questions come up: Why did Neely think the JS case needed to be heard by a higher court? and: Why was not one held?

The testimony of A.W. Benton and Joel K. Noble would argue against a Court of Special Sessions being called for by Justice Neely. Their testimonies argue for a conviction, but also allowing Joseph to escape. I think that we can safely discount those testimonies.

I think they hold the key, offering an explanation for how JS could be found guilty but not punished. They also explain indirectly why a Court of Special Sessions was called but not held. Purple’s version makes no sense.

Noble's account is second or third hand at best, since it is pretty much not in dispute that he was not at the 1826 proceedings. As I noted earlier in another post, I am pretty sure that he obtained his information from A.W. Benton. Joseph Smith said that Benton was the one that swore out the warrant in June of 1830 that resulted in the trial at South Bainbridge. Joseph also stated that during the trial, his prosecutors went to Colesville and swore out another warrant on the same charges. One of those prosecutors very likely was Benton. And nowhere has Benton intimated that he was at the 1826 proceeding. Whatever their testimonies, they were no more than hearsay, and actually are inimical to your own position that a Court of Special Session had been called for. Neely would not have called for a Court of Special Sessions after a conviction.

For all I know both Noble and Benton heard the story from Neely. Since there is nothing demanding Benton be Noble’s source (as there seems to be multiple opportunities for this information to come to him), I would suggest that singling Benton out as the malicious inventor of the story is an ad hoc escape. Why not assume Benton and Neely heard the story from one or more or those who participated in the 1826 trial? For instance, without giving details, Neely could have simply summarized his involvement in such words as: “Joe Smith was brought before me and was condemned, but considering his youth I didn’t want to send him to jail and advised him to leave town, which he did.”

It is hardly likely that Constable DeZeng, or any other constable there, would have "designedly allowed him to escape" since constables could be prosecuted for either the negligent or voluntary escape of a prisoner. Noting the level of acrimony that was attendant with a couple of the witnesses, especially Peter Bridgeman, it does not seem likely that Bridgeman would have allowed something like that to go unchallenged.

The fact that JS was married in South Bainbridge makes the escape story suspect, although the claim could honestly be made by anyone with incomplete information. Both Benton and Neely believe JS returned in a clandestine fashion and probably would have been surprised to learn JS had been married by Tarble.

[Dan Vogel]

I am going to discuss the Emily Pearsall document next. I really do not think that it is a reliable document as to the actual testimonies reproduced or the final dispostion of the case.

I think it is as reliable as any official or semi-official court document from that time could be. If it were forged, I wouldn’t expect the testimonies of Stowell and Thompson to refer to JS so approvingly or contain statements of Smith’s skill: i.e., Stowell’s mentioning JS seeing and describing his property in South Bainbridge and digging and finding a tail feather as JS described. A forger would not have let that slip through.

Let us examine the disposition that the Pearsall document presents. "and thereupon the court finds the defendant guilty". I do not buy, as I stated in an earlier post, that this statement only indicates that Justice Neely was only indicating that he believed that Joseph was guilty but was going to call a Court of Special Sessions to try the matter.

This is untenable for two reasons. 1. That contention does violence to the plain meaning that is evoked by the phrase "finds the defendant guilty," and 2. Neely had the authority to either find Joseph guilty on the spot or to discharge him, with no Court of Special Sessions needed.

I agree. I was responding to the argument that a preliminary examination can’t pronounce a verdict. I suggested the possibility that it reflected the verdict of a preliminary court. JS (or Willard Richards) was quite familiar with the law, but nevertheless made the following entry for 18 December 1843:

“After Dinner, Constable Follet returned with Elliot. Trial in the Assembly room for examinatin <before Aaron Johnson>. [Elliot was] found guilty of Kidnapping and bound over for trial to the Circuit Court in the sum of $3,000” (Cf. Joseph Smith, Jr., History of the Church of Jesus Christ of Latter-day Saints, ed. B. H. Roberts, 7 vols. (2nd ed. rev.; Salt Lake City: Deseret Book, 1948 printing), 6:117).

However, as I stated (perhaps not clearly enough in the video) that I prefer a different explanation, which I gave in my reconstruction. Keep in mind Neely probably wrote the record after the entire case was completed, presumably using notes provided by Purple. The record was written like a preliminary hearing with the view of sending the case to the Court of Special Sessions. When that was called off (for whatever reason), Neely had authority to add to his record his judgment of guilty. The way the testimony is written with “pretended”, how could there be any other conclusion, given the statute involved?

A court of Special Sessions could have been contemplated originally and the justices noticed. It certainly was never held. It could very well have been because Justice Neely did not originally know exactly what Joseph would charged with and envisioned soemthing more severe than a misdeamnor charge.

DeZeng’s entry for “Notifying two justices” indicates that the Court of Special Sessions went well beyond Neely contemplating and changing his mind before the end of his examination. The two justices were actually notified, and Neely recognized the defendant and three witnesses—not to mention a mittimus was issued. That seems pretty serious.

That sections suggests a couple of reasons that a Court of Special Sessions was never held. 1. The charge of being a disorderly person certainly did not rise to the degree of grand larceny. The charge of being a disorderly person was triable before one justice alone. 2. Josiah Stowell had agreed to stand Joseph's bail and Bridgeman and company urged Neely to go ahead and have the trial, examination, or whatever one wishes to call it.

I’m not sure this prohibited a Court of Special Sessions, although it had more authority than needed. Waterman’s Manual (1825), pp. 200-201, seems only to limit its power based on types of punishment (such as length of jail term or amount of fine). In other words, the concern is only that it doesn’t exceed its jurisdiction. As I argued, the unusual circumstances of JS’s case perhaps made Neely hesitate, especially since JS’s defense was also unusual.

Justice Neely did not submit a bill for the certification, as I noted in a previous post. As I noted (and as did Truman Madsen in his article on the legal setting of the trial), the required paperwork documenting a conviction was never submitted. At least, no record of it has ever been found. More telling than that, even, is the fact that Justice Neely's bill did not include a fee for "drawing up a conviction .... 37 1/2" as delineated in the "A New Conductor Generalis" of 1819.

Yes, and this was perhaps part of the off-the-record deal that was worked out—that the young Joseph would not have a criminal record if he promised to reform and not return for at least six months. However, Neely kept the record of the trial and his verdict in case JS didn’t keep the terms of his agreement. The incompleteness of the record implies a deal had been struck.

Also, if Joseph had actually been convicted in 1826, this fact would have come up in the 1830 trial in South Bainbridge and that trial been halted because of the double jepoardy clause in the U.S. Constitution. I doubt that the records had been lost by that time.

It could be argued that that was the reason the first 1830 trial was unsuccessful. Walters argued that JS was formally convicted and received a suspended sentence that could be applied for breaking the terms. However, I just think JS argued the statute of limitations ran out, as Neely suggested.

All of the above goes to my belief that the "and thereupon the court finds the defendant guilty" phrase in the Pearsall document was spurious, added by a person unknown to discredit Joseph.

How could the record not reflect a verdict of some kind? Everything points of guilty. However, it was not made official. Bridgeman and company were satisfied that JS had to leave town.

I actually question whether the document was actually from Neely's docket book. Wmily Pearsall was born in 1833, several years after the events took place. Neely was living in Onondaga County, New York by 1830 where his son Henry Adams, was born. New York statutes required that the docket book(s) of a Justice of the Peace be deposited with the town or city clerk when the Justice vacated his office. I have not been able to find when this was actually codified, but it seems reasonable to assume that the courts would want to keep those records because they were considered legal documents. Therefore, it is very possible that the Pearsall document was not from Neely's actual docket book, but rather from notes that he had of his various legal exertions as a justice of the peace.

I’m not sure, but it’s possible that the record was taken from Neely’s personal docket rather than his official docket.

In either case, the suspicion that someone had purposely changed or inserted a statement of statements on the Pearsall document are entirely warranted. The fact that the original document is no longer available and evidently never publicly displayed for verification may or may not be cause for skepticism. Of course, it is to me. As it is, handwriting cannot be verified and the document examined for erasures, insertions etcetera. It's accuracy and completeness as a record is suspect on many levels.

As I see it, the only level the record is being challenged is on the apologetic level. Mormons are being far too suspicious and overly defensive about this one sentence.

But I think that leaves us, logically, with the Court of Special Sessions and Purple's statement that Joseph was discharged. And, they are not mutually exclusive. As noted, a Court of Special Sessions could have been contemplated. It was never held, as we both have noted. The why we will probably never know. Neely may have given Joseph a verbal dressing down and extracted a promise that Joseph would discontinue any more "glass looking." Joseph had indicated a desire to distance himself from it in his examination. In any instance, whether he had contemplated a Court of Special Sessions or not, Justice Neely discharged Joseph.

In a sense, he was both convicted and discharged. I’ll settle for JS could have been convicted and punished under NY laws of that time had Neely not been lenient with the young scryer. JS’s enemies weren’t as bitter and heartless as some want to believe.

They found themselves confronted with a problem: JS’s fraudulent activity. They didn’t resort to violence, but used the law.

I have appreciated the feedback you have given and have gained a better understanding of the documents and issues.

[Glenn101]

In a sense, he was both convicted and discharged. I’ll settle for JS could have been convicted and punished under NY laws of that time had Neely not been lenient with the young scryer. JS’s enemies weren’t as bitter and heartless as some want to believe.

They found themselves confronted with a problem: JS’s fraudulent activity. They didn’t resort to violence, but used the law.

I have appreciated the feedback you have given and have gained a better understanding of the documents and issues.

Well, we sort of agree on something. There are too many details that we just do not have to come to a firmer conclusion. But, we have had some interesting dialogue.

Thanks,

Glenn

[USU78]

I have entertained the notion that, sometimes, and to the immense frustration of everyone involved, judges "cut the baby in half," giving rulings unsupportable by law or facts so that each side to a dispute is equally disappointed and angry . . . but not so angry as to be incited to violence.

I have seen it many times during my 30 years practicing law . . . and I wonder if the JP in this instance didn't do something similar "in the interests of justice."