49. Henry Bosworway , of St. James's Clerkenwell , was indicted, for that he not having God before his Eyes, &c. on John Moore , did make an Assault, and with a certain Hammer, made of Iron and Wood, value 1 s. and which he held in his left Hand, on the Forehead of the said Moore giving him on the Forehead as aforesaid a mortal Stroke, which broke his Skull March 24 , of which mortal Stroke he languish'd, and languishing lived, from the said 24 of March, to the 10 of April, and then and there Dy'd.
William Montgomory . I am a Cabinet ma'er, and the Deceased work'd with me in the same Workshop. On the 24 of March, the Prisoner came in, and asked the Deceas'd to toss up for Beer with him; he told him, he would toss up for no Beer. Then the Prisoner would Fight him for a dozen of Beer, and the Deceased said, No, if he must fight, it should be with a Man, and not with him. Then the Prisoner would measure round (the Course of) the Breast with him, to see who was the biggest Man; but the Deceased refus'd, and would not measure with him, and gave the Prisoner a little Shove from him; then the Prisoner lifted up his Hand, and gave the Deceased a Blow on the Breast.
Q. Did the Deceased strike the Prisoner, or did he only push him from him, to make him go from him?
Montgomory. He only push'd him, to make him stand farther, that he might not hinder his Work, and on that the Prisoner struck him on the Breast with his Hand. Upon this the Deceased took him by the Arm, and put him farther from him.
Q. Did the Deceased strike him, or only put him away?
Montgomory. He only took hold of his Arm, and run him back to another Man's Bench; he (the Deceased) was at Work, and had a little Saw in his Hand, and when he had run the Prisoner back, he gave him a little Stroke on the Back, with the Flat of the Saw, - the Stroke would not have kill'd a Fly. Then the Prisoner, in a Passion, took up this great Hammer, and with his Left Hand, knock'd down the Deceased immediately; he fell, and lay about five or six Minutes stunn'd with the Blow, then he came to himself, and told the Prisoner, he had got his Blood.
Q. Was the Skull broke?
Montgomory. Yes. I observed the Wound; and saw the Skull was broke.
Q. Were there no more Blows given?
Q. How long did the Deceased live after this?
Montgomory. He died on the 18th Day after the Blow, and he died of that Wound, to my Knowledge; for he was my Bed-fellow; I lay with him till three or four Days before he died.
Q. In what Condition was he while you lay with him?
Montgomory. He never came rightly to himself; never had his Judgment, as he formerly had. I saw him die, and I do think he died of the Blow.
Prisoner. What he says is all false; did not he strike me several Times with the Saw, and challenge me to wrestle with him?
Montgomory. No, the Deceased never struck till after he was so molested; then he gave him a little Slap, with the flat of the Saw, and that was in no Passion at all, not to hurt him; he was not inclin'd to do the Prisoner any Harm.
Edward Pearson . The Prisoner at the Bar is a Sawyer ; there were four of us Cabinet-maker s work'd together in a Work-Shop up one Pair of Stairs. The Deceased and we were at Work together, and the Prisoner came up and said, he had been drinking at the Cooper's Arms at Hockley in the Hole. I asked him what Business he had in our Shop; because our Master had order'd us to keep him out, for he was a quarrelsome, troublesome Man. He told me, he had been drinking Part of a Crown's-worth of Beer, and that it had cost him but 2 d. Then he laid himself down to sleep, but another Sawyer coming in, he started up, and said he would toss up with the Deceased for a Dozen of Beer; the Deceased reply'd, Yes, I'll toss up with you, if every one in the Shop will toss up with you too; and turning to me, I said, prithee have nothing to do with him. Upon this the Prisoner challenged the Deceased to fight or wrestle with him: No, says he, if I fight, it shall be with a Man; then the Prisoner came to me and said, why, how much less do you think I am, than he is? so he pull'd off his own Garter and would measure the Deceased round the Chest; upon which he gave the Prisoner a gentle Shove from him, for he was at work upon a Desk, and had a little Sash Saw in his Hand. Whether the Prisoner took hold of the Deceased first, or the Deceased, - of the Prisoner, I don't know; but I saw the Deceased's Hand upon the other's Shoulder, and he gave him a little Tap (not to kill a Fly) upon his Back, with the Flat of the Saw. I am sure 'twas with no Intent to hurt him, but was only design'd as a gentle Reprimand, to keep him from hindering his Work. Then the Prisoner struck at him, but could not hurt him, for the Deceased held him by the Arm. He was as sober a Man as any in this Court, and as stout a jolly lusty Fellow as ever I saw I never knew him have a Pint of Beer in the Shop in my Life, except sometimes when we have all joined our Five Farthings a-piece to drink together.
C. Go on and give an Account what follow'd upon the slap with the Saw.
Pearson. After the Tap with the Saw, the Prisoner snatched up that great Hammer, and
Henry Oborn Surgeon. On the 24th of March, I was sent for the Deceased, (immediately after the Accident) I found a very large Fracture in the Frontal Bone, on the left Side of the Forehead. It must have been done in a violent Manner, for such a Fracture I never saw in my Life. I attended him while he liv'd, which was about 17 Days, he died on Easter Sunday, and had no other Illness upon him as I know off.
Prisoner. Did you hear the Deceased say nothing with regard to his receiving this Wound.
Oborn. No, only that he freely forgave him.
Defence. I met with a Friend who made me very welcome, he gave me Part of a Crown's-worth of Beer, and it cost me but two Pence half Penny, and then I thought to have gone to work; but when I got into the Pit, I found I could not stand to work, so I went up to their Shop to lie down; some of them disturb'd me out of my Sleep, so I got up and told them, if they would be a Pot a-piece, I would be 2 Pots, and I went to the Deceased to ask him if he would agree; he push'd me away from him, and with a Pannel Saw which he was at work with, above 20 Inches long, he struck me several Blows, and one of the Blows came edge-ways over my Head; then he would wrestle with me, and I refused, and told him I never wrestled in my Life. After this he dragg'd me several Yards about the Shop.
Q. Have you any Witnesses to contradict what these People have said?
Prisoner. No, my Lord, I never had any angry Word with any of them in my Life. Guilty Death .