68. James Kelly , was indicted for that he not having God before his Eyes, &c. at Ranuce in Newfoundland, in Parts beyond the Seas, on Robert Levermore , did make an Assault, and with both his Hands fixed about the Neck of the said Levermore, did choak and strangle, of which choaking and strangling he died , Feb. 18. in the 8th Year of his Majesty's Reign .
The Councel for the King having open'd the Indictment and the Evidence, the Witnesses were call'd and sworn.
Nicholas Fitzgerald . I came acquainted with the Prisoner in the Harbour of Ranuce in Newfoundland , and likewise with one William Fitzgerald , at the same place, who was no Relation of mine, tho' we were of the same Name. I know nothing with relation to this Murder, but what the Prisoner told me himself. The Deceased was found after he had been kill'd, upon the Landwash, and the Day he was to be buried, William Fitzgerald desired me to go to Formuze, (where the Prisoner was at that Time) and I was to tell him, that Levermore (the Deceased) was found, and all the Harbour (according to the Custom of that Place) was summon'd to lay their Hands upon the Corps, before he was buried, in Order to find out the Murderer. When I came to the Prisoner, he asked me what the Gentlemen and the Doctor imagin'd had been the Cause of his Death: I told him, the Doctor supposed the Man had been shot; no, says he, he is mistaken, for Fitzgerald and I went to his House, and call'd for a Bottle of Rum; we paid a Shilling ready Money for it, and made him drink the greatest Part of it himself; when we found him almost fuddled,
Q. Did Kelly go with you to touch the Corps of the Deceased?
Fitzgerald. No, he took to the Woods with Fitzgerald.
Q. When was the Prisoner taken?
Fitzgerald. Nine or ten Days afterwards - Fitzgerald was kill'd in the Woods, but I was not present when he was kill'd.
Councel. You say the Prisoner confess'd to you, that they had Strangled him, and had not given him a squeak for his Life.
Councel. How came he to confess this to you? How long had you and he been acquainted?
Fitzgerald. I had been acquainted with him, about 2 Months.
Q. Why his telling you this, was the ready way for him to be taken up.
Fitzgerald. I don't know how he came to tell me; I asked him no Questions about it; every one in the Harbour was Summon'd to lay their Hands on the Corps, and they that did not come, he knew would be suspected.
Councel. Was you intimate with Fitzgerald?
Fitzgerald. He and I were Fellow-Servants.
Q. How long have you been in England?
Fitzgerald. I have been here ever since the 9th of February; I came over in the same Ship with the Prisoner.
Robert Joyce . I know the Prisoner; and I knew the Deceased. The Night that he went from Ranuce, I heard the Prisoner say he had kill'd Levermore. He and William Fitzgerald, (who was kill'd in the Woods) and this Fitzgerald, (the Witness) were in the Skiff; the Wind blue so hard that they could not get any farther, so they call'd upon me at a Place call'd Sheeps-Head, about 12 o'Clock at Night; this was the Night after the Man was Kill'd. I was a Bed, but I got up and lot the Prisoner in, and he lay at my House all Night. Next Morning he desir'd me to go down for the Skiff; I went, and found in it a bottle of Gun-powder, a Musket, a pair of Breeches and 2 Handkerchiefs. I asked him where he got those Things? He told me, he had them of a Woman in Ranuce Harbour. I said, I was sure that Woman had not any such Things as these: Why then says he, I had them out of Levermore's House; William Fitzgerald and I went there, and call'd for a Bottle of Rum; we pay'd ready Money for it, and made Levermore Drink with us: I ask'd him how he got the Things from thence, and he told me, that while they were Drinking together, 2 Men came in to fry some Pancakes, (Stevens, the Father and Son) that when these Men were gone out of the House, Fitzgerald said to him, let us-kill Levermore now: The Prisoner told me, that he refus'd, and said, No, no, let him alone for a Fortnight, or a Month longer, for fear the Stevens's should discover us; but Fitzgerald swore by G - d he should be kill'd then; so (he said) they both took hold of him, and strangled him directly. All this the Prisoner told me, and he said farther, that when Levermore was dead, he (the Prisoner) was left in the Room with him, while Fitzgerald went up and took all he could find, and Fitzgerald (he said) had not done him Justice, for he had conceal'd some of the Things; he told me, that at Night the carried the Body to the Stage Head, and hove him into the Sea. When the Corps was found, every Body was Summon'd to put their Hands upon it, but the Prisoner and Fitzgerald went off, into the Woods.
Q. How long were they in the Woods before they were taken?
Joyce. A matter of 6 Weeks.
Q. What became of Fitzgerald?
Joyce. He was kill'd in the Woods; they fled there after this Man's Death.
Q. Was you there when the People were Summon'd to touch the Body?
Joyce. Yes, and I touch'd it. We heard of Levermore's being Kill'd about 4 Days after they were gone into the Woods, and it was no sooner known, but the Prisoner went a matter of an hundred Leagues to the North-ward, and about 6 Weeks afterwards he was taken.
Q. How came William Fitzgerald to be in the Skiff when the Prisoner went from Ranuce?
Joyce. I don't know
Q. Was the other Fitzgerald (the Witness ) in the Skiff?
Q. What was your Notion concerning touching the dead Body?
Joyce. We all imagin'd that if the Murderer touch'd it, it would Bleed.
Q. (To Fitzgerald) The Night after this happen'd, did you come in the Boat with the Prisoner? - Did you go any where with him in the Boat?
Q. What was you to do in the Boat with them?
Fitzgerald. To go Home along with them, and we went from Ranuce to the Harbour of Formuze, to a Place call'd the Sheep's-Head, where the Prisoner liv'd. He had the Charge of one Lambe's Stores, and work'd on his Account.
Q. When you went with them in the Boat, did you know of Levermore's being dead?
Fitzgerald. I heard he was kill'd, but did not know by who.
Q. How far was Ranuce from the Place where they brought the Boat too?
Fitzgerald. About 3 Miles. The Prisoner wanted me to row from Capt. Kingman's-Stage to the Sheep's-Head, but the Wind blew so hard, we could not row up to the Place, so we were forced to travel a good Way by Land, and the Prisoner had the Breeches and the Shirt, and the other Things, which he told me he had from Levermore's ty'd upon a Bundle at his Back.
Prisoner. This Frizgerald has a Spight against me, because the other Fitzgerald beat him once, on-my Account.
Q. (To Joyce) Do you know of any falling out between the Prisoner and this Witness?
Joyce. No, I don't know whether there was or not.
Q. When did you come to England?
Joyce. We all came together in the same Ship, when the Pyrates came to England
Q. Have you and the Prisoner ever had any falling out?
Fitzgerald. No, never in my Life.
Prisoner. He broke open a Door where I kept Provision; I beat him for it, and he said he would be even with me: Now he swears away my Blood on that Account. I never conversed with Levermore, nor did I ever see him in my Life.
Fitzgerald. I saw the Prisoner at Levermore's the very Day he was kill'd: he was there the Day before, and the Day after.
Q. Did you see him only at the Place where Levermore liv'd, or at Levermore's House?
Fitzgerald. I saw him at the House that I belong'd to, (along) with Fitzgerald; they left our House about 8 or 9 o'Clock in the Morning, and went to Levermore's about that Time The Prisoner has been at Ranuce several Times before He liv'd about 3 Miles off.
Q. Did you ever see the Prisoner in Company with Levermore?
Fitzgerald. No, but I have seen Fitzgerald in Company with him several Times.
Q. (To the Prisoner) If you was innocent, why did you fly away into the Woods?
Prisoner. Capt. Lambe's Store-House was broke open, and I had a Quarrel with a Woman on that Account; she, to be revenged of me, swore that I had ravish'd her Daughter; I was afraid of being carried before a Justice, so I ran away.
Councel. And was Fitzgerald (who fled with you) afraid she should swear against him too?
Prisoner. No, I don't know how he came to go with me. Please to enquire into their Characters; for they design to take away my Life-wrongfully.
The Jury found the Prisoner Guilty . Death .