248. WILLIAM NASH was indicted for feloniously stealing on the 5th day of February last, two hundred gallons of beer called porter, value 6 l. the goods of Thomas Buzzard , in the dwelling-house of William Nash .
Do you know Mr. Whitbread? - Yes, he is a porter brewer.
What is the prisoner? - I do not know.
What do you know of the losing of beer? - Only I went to examine a stair-case of the dwelling-house of the prisoner, and I found the first stair would take up and down, which was very evident, because it caused a friction; at the other end there was a piece of a ledge lay, and this stair used to draw away, and two new nails were put in which had been lately done to take in and out, the first raiser and first step would come up together; somebody had frequently been down, therefore the edge of the butt, and the very hoop was polished bright, by rubbing upon the edge of the cask, which was under that part of the stair-case.
Court. Was there room for a man to go down after the step that was loose was taken out? - Yes, a man bigger than me went down after it was taken out.
What does the family of the prisoner consist of? - I know nothing of his family, I saw him at the house when I went to examine the stair, that was the first time, I said nothing to him.
Prisoner's Council. You know nothing at all of the beer in the cellar? - I know there was beer there.
Do you know there were butts there, you cannot tell how long this step and raiser had been before it was removed? - No.
It might have been eight or nine months? - No, Sir, not as long as that, there had been two fresh nails in.
You mean there had been nails put in since the stairs had been first built? - Yes.
But how long they had been there you cannot say? - No.
They might have been there eight or nine months? - No, not two months.
Can you swear they might have been there only two months? - They might or might not.
Has he any lodgers? - None at all.
Any servants? - Nobody in the house but his wife and child.
What observation did you make about this way into the cellar? - I went in with the cooper, and we examined the cellar, and found a board that had been frequently rubbed, and it was rubbed quite bright, by frequently moving, and there had been a communication from the house down to the butts, and all the butts there were part drawn off.
What quantity of beer was taken from each? - From some a barrel, some more and some less.
Upon the whole how much? - Two hundred gallons, there had been water put in, but it did not incorporate with the beer. (A vial of water produced.) This is the top of the butt; (another vial produced with water and beer, and a third with porter.)
That was not the colour of it, when it was put in? - No; if it had been started with water in it, it would have all mixed together.
Whose beer was it? - It was the property of Thomas Buzzard , it was in our care and and cellar, but we have a rule of starting beer, and charging it to our customer, though he do not pay for it till it is carried to his own house.
Court. You carry beer out from your brew-house to particular cellars, and appropriate that to particular customers, suppose it is not sent into their house, are they liable to pay for it? - I believe they are.
Why do you believe that, did you ever know an instance of it? - No.
The customer assents to that charge? - Yes, and it is entered in his books, as well as ours.
You was saying that if the beer had been started and put in that cellar with the water in it, it would have all mixed together, how do you prove that, will not the heaviest body sink to the bottom, is it not a general
Council for the Prosecution. Do you think the beer is heavier than the water? - Water is the heaviest a considerable deal.
Court to Mr. Jackson. Do you happen to know from any experiment with respect to beer in particular whether water is the heaviest or beer? - Water.
Council for the Prisoner. Have you ever tried the difference? - I have, every but that this beer was in was bored.
Do you know by your own knowledge that this cellar door was open or not? - I was informed by one of our people, that it was once open.
Court. How long had this beer been in that store cellar? - About ten or eleven months.
Had the prisoner lived in the house all that time? - Yes, he had.
How do you happen to know what his family consists of? - When I went to search the house, I found nobody in the house but his wife and child, every room in the house was empty except the ground floor.
Had you ever any conversation with the prisoner himself, about this step or stair? - No.
I think you said that you observed the step moveable, so as to make a communication between the house, and the cellar? - The chain hoop of the butt that stood under the stairs was polished very bright, and between the cellar door, and the place where the cellar was locked, there was a girder that run under the cellar, and it was impossible for any man to get into the cellar without rubbing against it, and all the cobwebs were brushed off from the stair-case.
From drawing off the water at the top of the casks, could you form any judgment of the quantity of beer that had been drawn off? - When we came to the beer that had been separated from the water, we estimated it about two butts, or two hundred gallons.
What may the value of that be? - About six or eight pounds.
Did you try the tops of those butts, that stood nearest the cellar door? - All of them.
Mr. Jackson was not at my house till three or four days after, when the others had done what they pleased.
Prisoner's Council. I have witnesses to shew that the cellar door was open.
I know the prisoner, I never observed a cellar door in his house but one next the street; I have observed that open several times, I cannot say when it was open the first time, but I have seen it open before Christmas.
Do you live in that neighbourhood? - I do not, I serve the prisoner with meat and butter, I was frequently at the house, his child was very bad, and out of gratitude, I sat up with the child, and I have seen the cellar door open night and day, when sent out at a eleven o'clock at night to get a bit of stake for our supper, and to fetch beer.
Council for the Prosecution. How many times have you seen it open? - Many times.
Did you ever go down? - I did not look down.
Not even look down? - No.
Did you tell the prisoner? - Yes.
You did not tell Mr. Whitbread? - No, Sir, I did not know him.
Did you tell the watchman? - I did not know any thing of any watchman.
Court. You say you saw this often open both night and day, for weeks together? - I saw a hasp on it, but I never saw a lock to it.
I think you was describing it as open? - It was flapping to and again.
Both night and day? - Yes.
As far as you saw it, it was always open, you never found it shut? - I never looked to see whether it was shut.
But you looked to see whether it was not shut? - I pushed by it, then it must be open.
As far as you observed, it was always open? - I shoved by it, but I did not know whether it was open or shut, but when I shoved by it, it must be open.
Did it open outwards or inwards? - Towards the street.
It stood open night and day? - I have seen
As far as you observed it, it was always open? - It was not my business to see, but when it was open I shunned by it.
Court. What you was afraid to push it to? - I had no right to shut it.
Court to Mr. Jackson. What sort of a door is this? - There is a flap and a door, the same as a house door, it opens outwards.
Was it open night and day? - The lock was off, but no great while; and during that time there was a nail put in it, as soon as I heard it was open, and that there was no lock upon it, I sent a lock.
Do you know how long that was the case? - I do not.
Court. Was there no way down from the door to get at these things, but where this was moved? - There is a wall all round the cellar, there was no other way to come to it but where the step was moved, and from the street door.
I know the prisoner, there came a man one night, and opened the cellar door, we lived right facing the prisoner, and the door used to flap backward and forward, frequently with the wind in the night; and when there was a piece of work about the houses where we lived, and the right heir came, we were obliged to move; somebody came and opened the lock, and I told the prisoner that there was a man had unlocked the padlock, and left it hanging in the staple, says I, I will call Stop thief! he said it was nothing to me; this was after Nash had been taken up, and bailed; I desired to have a lock put on, and then they fetched the landlord Mr. Clarke, and he put on a small lock, like the lock of a sugar cannister.
I am a carpenter, I saw the step after they had knocked the step up, they had broke part of it.
Can you say whether that step had opened from the top side or the bottom side only? To the best of my knowledge, that step had not been opened for some time.
Five or six months? - It did not appear to me as if it had been opened, only by their knocking it up.
Was there any visible marks of that step having been wrenched up from the other side? - No.
Could that have been forced up from the other side? - It did not appear.
Could it have been taken up without the mark of a chissel? - Not that I know of. I have known the prisoner two years, a very honest sober just man as ever I knew, he is a bricklayer and plaisterer, and works hard for his living.
Court to Mr. Poole. When did you see this step? - Just after these gentlemen had knocked it up, it was fresh broke by their knocking it up.
Who told you it was by their breaking it up? - So the prisoner's wife told me.
Court. Suppose it had been made loose on purpose, and nails put in loose, would a chissel have been necessary? - They was not nails that was moveable for that use. I took notice of the step when I looked it over.
(The step produced.)
Court. How came it fresh broken? - The bit was out before I had any thing to do with it, I did not take it up at first.
Mr. Jackson. I was at the taking it up, I was within the house, and our cooper was below, and he pushed it in, but whether that bit was slipped off by this na il or no, I cannot say.
Court. Then that nail was so fast as to break out that bit of wood? - It all came together, the whole step.
Court. The whole step, the upright, and the horizontal? - Yes.
The prisoner called five more witnesses who all gave him a very good character.
NOT GUILTY .
Tried by the first Middlesex Jury before Mr. RECORDER.