Edward Bird , of St. James's Gent . was indicted for the Murther of Samuel Loxton by giving him one Mortal wound with a Sword on the right side of his Body, between the first and second Rib, of the breath of half an Inch, and the depth of 12 Inches of which he immediately died . He was indicted a second time on the Coroners. Inquest for the same, and likewise a 3d time on the Statute of Stabbing.
Thomas Baberton alias Vernassel , deposed, that on the 25th of September last the Prisoner, came to Mr. Seeds well's House at the Bagnio in Silver-Street together with a Woman in a Coach bringing with him a Bottle of Champain Wine, and that Samuel Loxton the deceased waited upon them, that they went to Bed and lay still about 2 a Clock and then knocking, the deceased went up and coming down told him the Prisoner demanded a Bath, and that he being then Cupping a great Gentleman, told him he had almost done and he should have one gotten ready as soon as possible, that Loxton came down again and told him that the Gentleman Damned him and Cursed him, telling him he would have one that very Moment, and had threatned and attempted to kill him, that then the Prisoner still keeping a knocking, he begg'd leave of the Gentleman he
confirm'd the generality of what had before deposed, adding, that when the sent up she bid her give her and her Masters Ser to him, and tell him they would both wait upon themselves immediately, and that the Maid came and when she spoke of her Husbands going up, the reply'd Madam, the Gentleman says he will my Masters, and she added, that when he killed the deceased, and they were endeavouring his Sword, he having it under his Arm, to wound any that should happen to be him
Surgeon deposed, that he being sent for found quite dead, and searching found 2 Wounds, in his Breast slanting 5 or 6 Inches but did not but another betwixt 1st and 2d Rib that the Body and Lungs.4 Fingers deep and he did verily believe was the cause of his Death.
The Prisoner in his defence pleaded, than being to of Town and next Day, he lay at the Bagnio to prevent the trouble, getting out early in the Morning might occasion the Family that about 2 Clock desired a Bath, that the Water coming to him, told him he should have one, and at other times told him he should have none, that he went away and locked him in; and in above quarter of an Hour they all came up and said he should have Bath but he turned out into the Street that Moment, that the refusing to go they all surrounded the Bed, laid Hands I on him, store his Ship and deceased gave him several blows, which brinsed him very much on his Side Arm and one of his Knuckles, that be thereupon thinking mischief was designed him, drew his Sword to defend himself, and the deceased repeating his blows, and unfortunately falling or stooping toward the Bed, this unfortunate Accident happen'd to a Man that he never had any difference with before. In proof of which he called the following Evidences.
S - W - deposed that the being at the place aforesaid, the Prisoner about Two of the Clock in the Morning knock'd and wou'd have a Bath, but the Waiter made. Answer, that there was a great Gentleman in the Bath and he could not till 5 in the Morning, and then he would call him, that he saying he would have one presently, the Waiter reply'd G - d D - m him for a Rascal he neither could nor should have any, to which the Prisoner reply'd that Gentlemen were not to be so abused, that upon this he arose and pushed the Waiter out of Doors, who lock'd the Door after him and lock'd them in that them knock'd again, and they came up and threat'ned to turn them out of Doors and that the Man at the Bedsfeet struck the Prisoner and she heard an out cry of Murder, and was afraid they should both be Murdered, and that she saw the Prisoner rise up in his Bed and Men holding him, that when the deceased lay dead on the Ground he had a dark colour'd Cane hanging on his Wrist by a black String, but she knew of no Sword in the Bed. nor saw any Wound given.
E - R - deposed, that she lodging that Night at the Bagnio, and hearing the disturbance, went to the Prisoners Room and saw the deceased lying on the Floor, and a Cane lying by him in the Room, and a Faggor-stick upon the Stairs hard by the Door of the Room, which last Circumstance as to the Faggor-stick was also confirm'd by another Evidence. The Walker who succeeded the deceased as Waiter at the Bagnio deposed, that a Gentleman that came to the Bagnio and enquired into the circumstances of the Fact, being Shew'd the Room in which it was done, examined the Door and Wainscot, and could not perceive any Marks of the 8 or 10 Passes made against it by the Prisoner, as had been deposed by. The Barberton alias Vernassel, and that he discoursing with Baberton about the breaking of his Ribbs, seeing him stript, saw no mark or appearance of any such thing and that Baberton when he asked him why he did not apply something to them, said they were not broke but bruis'd. And as to the deceased, besides an ill Character, and that he used to be abusive to Gentlemen, had been wounded not long before, at the Prosecutors could not deny. The Prisoner called several Evidences to prove that his Shirt was very much torn, this was confirmed by the Constable and Watchman that apprehended him, and also was produced in Court: He also called the Constable and Watchman and Several other Evidences who deposed, they did see a bruise on his Arm and also a hurt upon his Knuckles, and that they were bloody. He likewise called several Persons of Credit and Worth to his Reputation and peaceable demeanour, who gave him a very good Character. He also observed that little credit was to be given to the Evidence of Baberton alias Vernassel, who had swore that 3 or 4 of his Ribs were broke, when it was sworn By another Evidence that he himself owned his Ribs were not broken, but only that he was bruised, and that he owned in Court that he never had made use of any Surgeon,&c. on that account. Upon the hearing of the whole Matter, the Jury found him guilty of all the Indictment, and he receiv'd Sentence of Death accordingly. Before the receiving of which, being asked what he had to say, why Judgement should not pass upon him according to Law he spoke to the Court as followeth.
I submit my self to your Lordship and this Honourable Bench; and I beg only your honourable Favour and Regard that as she Witness's for me swore positively to my being assaulted and that the Jury (to my, great