William Chetwynd.
12th October 1743
Reference Numbert17431012-28
VerdictSpecial Verdict
SentenceNo Punishment

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504. + William Chetwynd was indicted at Common Law for the Murder of Thomas Ricketts .

He was likewise indicted on the Statute of Stabbing by the Name of William Chetwynd, of the Parish of St Ann Westminster, in the County of Middlesex , Gent. for that he not having God before his Eyes , &c. on the 26th Day of September , in the 17th Year of His Majesty's Reign, with Force and Arms, in the said Parish, and the said County, in and upon Thomas Ricketts , in the Peace of God and our Lord the King then and there being, feloniously did make an Assault; and with a certain Knife made of Iron and Steel, of the Value of Six pence, which he, the said William Chetwynd , then and there had, and held in his Left-Hand, him, the said Thomas Ricketts , in and upon the right Side of the Belly, of him the said Thomas, below the Navel of him the said Thomas, then and there feloniously, and in the Fury of his Mind, did strike and stab (he the said Thomas Ricketts then and there not having any Weapon drawn, nor the said Thomas Ricketts then and there having first stricken the said William Chetwynd ) and that the said William Chetwynd , with the Knife aforesaid, did then and there give to the said Thomas Ricketts in and upon the Right-Side of the Belly of him, the said Thomas, below the Navel of him the said Thomas, one mortal Wound, of the Breadth of half an Inch, and of the Depth of three Inches, of which mortal Wound the said Thomas, at the Parish aforesaid, and County aforesaid, from the said 26th Day of September until the 29th Day of the said Month of September, did languish, and languishing did live; upon which said 29th Day of September, the aforesaid Thomas Ricketts , in the said Parish, and the said County, of the said mortal Wound did die; and so the Jurors aforesaid do say, that the aforesaid William Chetwynd the aforesaid Thomas Ricketts feloniously, and in the Fury of his Mind, did kill and slay, against the Peace of our Lord the King, his Crown and Dignity.

He was a third time indicted on the Coroner's Inquisition, for feloniously slaying the said Tho Ricketts .

The Council for the Prisoner desired, that as the Prisoner had the Misfortune to be extremely deaf, he might have the Liberty of standing at the inner Bar, which the Court readily granted.

The Council for the Prosecution * having opened the several Indictments; and set forth the Circumstances relating to the Fact; they proceeded to examine their Witnesses.

* Mr Serjeant Wynne ,

Mr Moreton ,

Mr Erskine ,

Mr Purcas ,

were of Council for the Crown.

Mr Lloyd ,

Mr Legg ,

Mr Hume Campbell ,

Mr Hatsell ,

Mr Stracey ,

were of Council for the Prisoner. *

[Master William Hamilton , sworn]

Counc. I think you are one of the young Gentlemen who boarded at Mr Clare's Academy in Soho-Square ?

Hamilton. Yes, I am.

Counc. Was you boarded there last September?

Hamilton. Yes.

Counc. Was the Prisoner at the Bar at Board there then?

Hamilton. Yes.

Counc. Do you remember one Mr Thomas Ricketts being there?

Hamilton. Yes, I was present when the Prisoner and Mr Ricketts were together in the Room.

Counc. What Time was it?

Hamilton. It was on the 26th of September.

Counc. Who was in the Room when you went in?

Hamilton. There was one Samuel Malcher , Thomas Ricketts , and Mr Chetwynd; they were the only Persons in the Room.

Counc. What was the Conversation turning upon? What were they talking about, when you came into the Room?

Hamilton. Mr Chetwynd had got some Cake. and Mr Thomas Ricketts desired Mr Chetwynd to give him a Piece of his Cake; Chetwynd denied it him; I asked him for a Piece, and he likewise denied it me.

Counc. What happened then?

Hamilton. Hannah Humphreys came into the Room about that Time. Mr Chetwynd took the Cake, and cut a Piece off, and laid the Piece upon the Bureau, and locked the other up; with that Mr Ricketts came and took the Piece of Cake off the Bureau; Mr Chetwynd asked him for it; and Mr Ricketts laughing, went up to the Maid, and told her, he had taken a Piece of Mr Chetwynd's Cake; with that, Mr Chetwynd came up to him, and demanded it of him again.

Council. Did Mr Ricketts deliver it to him again?

Hamilton. No.

Council. Did Mr Ricketts refuse to deliver it?

Hamilton. Mr Ricketts did not refuse to deliver it.

Council. What Answer did Mr Ricketts give Mr Chetwynd, when he asked him for the Cake again?

Hamilton. He gave him no Answer, but continued laughing.

Council. You mean he was laughing with you, not laughing at the Prisoner.

Prisoner's Coun. That's nice indeed!

Prosecutor's Council. What happened next after this?

Hamilton. After Mr Chetwynd demanded the Cake, and Mr Ricketts giving him no Answer, he struck him immediately with the Knife, which he had in his Hand.

Counc. Was it back handed?

Hamilton. It was back-handed.

Jury. I desire he may speak a little louder; was Ricketts behind him when he struck him with the Knife?

Hamilton. Mr Rickett's Side was to Mr Chetwynd's. - He was standing by his Side.

Counc. How near were you to them.

Hamilton. Not very near.

Counc. Where did you stand?

Hamilton. I stood a little Way before them.

Counc. Where was this Blow given?

Hamilton. Just here about upon the Side, (pointing to the Right-Side of the Belly).

Counc. Did you see him pull the Knife out.

Hamilton. I did not see him pull it out.

Counc. How do you know it was a Knife that he struck him with?

Hamilton. Because it was the same Knife that he cut the Cake with.

Counc. What followed upon that?

Hamilton. Mr Ricketts cried out he was afraid he was stabbed.

Counc. Did Mr Ricketts fall down?

Hamilton. No; he laid his Hand upon his Side, and said he was stabbed.

Counc. What sort of a Room is it?

Hamilton. It is a pretty large Room.

Counc. What Part of the Room did the Scrutore stand in?

Hamilton. It stood in the Corner of the Room by the Window; the Window and the Scrutore were on the same Side.

Counc. What Kind of a Knife was this?

Hamilton. It was a Sort of a French Knife.

Counc. Was it a Penknife? Or what Knife was it?

Hamilton. It was a pretty large Knife.

Counc. Was it a Clasp Knife? Hamilton. Yes.

Court. Did you see Chetwynd cut the Piece of Cake? Hamilton. No.

Court. Did you see the Deceased take it away?

Hamilton. Yes.

Court. Did Chetwynd see him take it away?

Hamilton. I cannot tell that.

The Council for the Prosecution having done with this Witness, he was examined on Behalf of the Prisoner.

Pris. Council. Mr Hamilton, if I understand you right, the Deceased and you asked Mr Chetwynd for a Piece of Cake, and Chetwynd refused it?

Hamilton. Yes.

Counc. So he was not willing to give either of you any?

Hamilton. No, he was not.

Counc. I think you said Mr Chetwynd took the Knife out of his Pocket ?

Hamilton. I said he cut a Piece of Cake; I did not say he took the Knife out of his Pocket.

Counc. I think it was a Cake that they call a Simnel; was it not?

Hamilton. Yes, it was.

Counc. I think they are very hard, with a Crust on the outside, and difficult to be cut?

Hamilton. It was pretty hard.

Counc. Then that may possibly require more Strength than he had in one Hand, to cut it; he cut it down did not her

Hamilton. I did not see him cut it.

Counc. You said he took his Knife and cut it?

Hamilton. Yes, he did cut it.

Counc. Then tell me whether or no, (I am sure I will do fairly, God forbid that I should do otherwise) Mr Chetwynd did not refuse to give any of the Cake to Mr Ricketts?

Hamilton. Yes, he did use it.

Counc. Who did he cut the Cake for? Was it not for himself?

Hamilton. I believe it was.

Counc. Then he did not cut it for any body else; I think you told, he laughingly told the Maid he had got it?

Hamilton. Yes.

Counc. And upon that, Mr Chetwynd demanded it from him again, and he laughed, but did not deliver it.

Hamilton. He made him no Answer, but did not deliver it.

Counc. Did he ask him to give it him again before this unhappy Accident happened?

Hamilton. Yes, he did.

Counc. Pray tell me whether he did not besides his Laughing, endeavour to keep the Cake from him?

Hamilton. I did not observe that.

Counc. Please to tell me, whether as you were School fellows together; you were not all good Friends?

Hamilton. Yes, we were.

Counc. Which of the two was biggest.

Hamilton. Ricketts was larger than Chetwynd.

Counc. I am obliged to the Gentlemen on the other Side, for intiating that Mr Chetwynd gave Mr Ricketts a Piece of Cake before, I would ask you whether Mr Chetwynd did not give Mr Ricketts a Piece that Morning?

Hamilton. I heard he did.

Counc. How long was that before this Thing happened?

Hamilton. I don't know how long it was. This happen'd about One o'Clock.

Counc. When this unfortunate Thing happened what did Mr Chetwynd say immediately upon it?

Hamilton. Really, I do not know.

Counc. I think, Sir, you were telling the Court of a French Knife; I own I don't know what they are; but the Question I would ask you, is, whether most of you young Gentlemen do not carry these Knives in your Pockets?

Hamilton. I have heard so; it was a Knife that he always had.

Counc. And I suppose many of you had such Knives?

Hamilton. I cannot tell, as to that, Sir.

Counc. I am obliged to you for the Candour you have used in your Evidence I have no more Questions to ask you.

Court. Can you recollect, how these young Gentlemen lived together, whether there was any Will between them, or whether they lived in friendly Manner?

Hamilton. I think they lived as the other Scholars did.

Court. Do you apprehend there was any Malice between them?

Hamilton. I never knew of any Malice between them.

Court. How did the young Gentleman behave after he had given that Wound?

Hamilton. I did not see him afterwards.

[Master Samuel Malcher , sworn.]

Court. How old are you?

Malcher. I am thirteen next January?

The Court asked Malcher what he thought would become of him, if he did not speak the Truth; to which, he replied, he should be unhappy everlasting.

Counc. Were you present at this unhappy Affair ?

Malcher. Yes.

Counc. Then give us an Account of what you heard, and what you saw?

Malcher. Mr Ricketts asked Mr Chetwynd for a Piece of his Cake, and Mr Chetwynd gave him a Piece; he asked him for another Piece, and he refused it him.

Counc. How long was that after he had given him the first Piece?

Malcher. It was about a Quarter of an Hour; and after he had refused it him, he went out of the Room, with the Cake under his Arm, and then came into the Room again.

Counc. What Room was it?

Malcher. It was the Room where Mr Chetwynd lay.

Counc. What Room did he go into, when he went out of his own Room, after his refusing him the Cake ?

Malcher. He did not go into any Room; he only went out of the Room to the Head of the Stair-Case, and then came in again.

Counc. Did he open the Bureau then, or was it open before?

Malcher. I cannot justly recollect that.

Counc. You say he had the Cake with him?

Malcher. Yes.

Counc. What did he cut it upon?

Malcher. He cut it upon the Bureau.

Counc. You say he cut a Piece, what did he do with it?

Malcher. He laid it down upon the Bureau, and Ricketts came and took it - snatched it away.

Counc. Did Chetwynd see him take it away?

Malcher. I cannot tell whether he did or no.

Court. How did Chetwynd stand?

Malcher. He had his Back to Ricketts.

Court. Where did the Cake lie?

Malcher. The Cake was before Chetwynd, and Ricketts put his Hand beside him, and took it away, and then he went to the Window.

Counc. Where did he carry it?

Malcher. He went to the second Window with it.

Counc. How far was that from the Bureau?

Malcher. I believe about a Yard.

Counc. What did he do after that?

Malcher Mr Chetwynd came and stabbed him.

Counc. In how long Time was that after he took the Cake?

Malcher. I believe it was a Minute.

Counc. Was it so long as a Minute?

Malcher. I do not know whether it was quite so long as a Minute, or not, it was but a very little Time.

Counc. Did Chetwynd ask for his Cake?

Malcher. I was not near enough to hear it; I was at my Box, at the other End of the Room.

Counc. Is it a small Room?

Malcher. It is not a very large Room?

Counc. What happened after that?

Malcher. Mr Richetts told the Maid he was stabbed, and then he went down Stairs.

Counc. Was Hannah Humphreys in the Room?

Malcher. Yes.

Counc. What did she say?

Malcher. She said, he was stabbed.

Counc. What was said or done afterwards?

Malcher. Really I don't know.

Counc. Had Ricketts any Thing in his Hand?

Malcher. He had nothing in his Hand that I saw; nor said any thing to provoke him, as I heard.

[ Cross Examination by the Prisoner's Council.]

Counc. You was present at the Beginning of this Transaction, was you not?

Malcher. Yes.

Counc. Was you present before Mr Hamilton came up?

Malcher. Yes, Sir.

Counc. When Mr Ricketts had the Piece of Cake given him, that was before Mr Hamilton came up, was it not?

Malcher. Mr Hamilton did not see him give it him.

Counc. They were good Friends before this, were they not?

Malcher. I think so, they used to be so.

Counc. When Ricketts asked him for the second Piece of Cake, was not he teazing of him?

Malcher. No, he teazed him about the first; and then he went out of the Room, and Ricketts followed him.

Counc. You say, Mr. Chetwynd carried the Cake under his Arm out of the Room, and Ricketts followed him; and then Chetwynd came into the Room again, and Ricketts followed him still, did not he?

Malcher. Yes.

Counc. Then he came to his Bureau, Ricketts following of him still?

Malcher. Yes; and then I saw Mr Ricketts take the Piece of Cake up, which Mr Chetwynd had laid upon his Bureau.

Counc. Then Mr Chetwynd turned about to ask for his Cake again?

Malcher. I did not hear him ask for it.

Counc. He went after him, did not he?

Malcher. Yes.

Counc. Was it not for his Cake?

Malcher. I cannot tell.

Counc. Did Ricketts shove him?

Malcher. Not that I saw.

Counc. When Ricketts took the Cake from Chetwynd, had Chetwynd his Back towards him?

Malcher. Yes.

Counc. Did Ricketts reach over his Shoulder, or take it under his Arm?

Malcher. He went under his Arm, and took the Cake.

Counc. Did he touch him?

Malcher. I cannot tell that.

Counc. You say immediately upon that he went to the Window, how far was that from the Bureau?

Malcher. About a Yard or two.

Counc. Pray, now, when Chetwynd went to cut the Cake (you were there all the while) did Ricketts offer to assist him in it? Did he offer to lend him a Knife?

Malcher. Yes, he did, and had it open.

Counc. What did Chetwynd say then?

Malcher. Chetwynd said, he had a Knife of his own.

Counc. Pray, had Ricketts a Knife in his Hand?

Malcher. Yes, he had a Knife, and offered to lend it Mr Chetwynd.

Pros. Counc. I should be glad to know whether he did not put that Knife into his Pocket again?

Malcher. I do not know that he did.

Counc. Here is a Question misunderstood I believe, did the Knife that you speak of belong to Mr Chetwynd, or to Mr Ricketts?

Malcher. The Knife belonged to Mr Ricketts.

Pris. Counc. That's a fair Answer to the Question.

Court. Ricketts's Knife was opened before Chetwynd's; were both the Knives open at the Time this unhappy Accident happened?

Malcher. Mr Chetwynd's Knife was not opened when Mr Ricketts offered him his Knife; but he refused it, and said he had one of his own.

Court. Was Rickett's Knife open then?

Malcher. Yes.

Court. Were they both open when the Accident happend?

Malcher. No. Ricketts's was clasped, and put into his Pocket, on Mr. Chetwynd's refusing it, and before the Cake was cut and put upon the Bureau.

Court. Then you saw him clasp his Knife when Chetwynd refused it, and put it into his Pocket?

Malcher. Yes.

Court. And this was before this Wound was given?

Malcher. Yes.

Prof. Counc. Was it before the Cake was cut and laid upon the Bureau?

Malcher. Yes, it was.

[ Hannah Humphreys sworn.]

Counc. Pray give us an Account what you know of this unhappy Affair.

Humphreys. The young Gentlemen were in the Dining-Room, and I was in the next Room; I heard a Noise, upon which I went into the Dining-Room and asked them what they did there, and what was the Matter they were not in their own Rooms; Mr Ricketts made Answer, that he wanted a Piece of Cake of Mr Chetwynd; I said to Mr. Ricketts, have not you had a Piece; he said No, and smiled. I looked at Mr. Ricketts, and said, I believed he had had some, for he had some Crumbs of Cake upon his Lips; Mr Ricketts smiled again, and said, he wanted another Piece, or a bigger Piece.

Counc. Where was Mr Chetwynd then?

Humphreys. Mr Chetwynd at that Time was at his own Bureau, cutting his Cake.

Counc. How far was Mr Ricketts off the Bureau?

Humphreys. He was as near as I can guess about two Yards from the Bureau; Mr Ricketts went up to the Bureau to Mr Chetwynd, and Mr Chetwynd lifts up his Arms, and says, Don't Mr Ricketts, and Mr Ricketts then took the Cake.

Court. Mention in what Manner he took it.

Humphreys. I think, to the best of my Knowledge it was over Mr Chetwynd's Shoulder.

Counc. Where did you stand at that Time?

Humphreys. I stood at the Corner of the middle Window, and Mr Ricketts almost faced me, not quite, but was a little Sideways of me.

Court. Had Mr Ricketts the Cake in his Hand?

Humphreys. He had the Cake in his Hand.

Court. How far were you off the Bureau then?

Humphreys. I was then from the Bureau about three Yards, and Mr Ricketts came up to me, and said, Hannah, I have got some Cake. (I had a Stocking in my Hand which I was darning.) Upon, Mr Ricketts's saying he had got some Cake, Mr Chetwynd came from his Bureau, to my Right-Hand, and in a very short Time Mr. Ricketts said, Hannah, Mr Chetwynd has stabbed me. I looked at him.

Pros. Counc. Did you see Mr Chetwynd come from the Bureau?

Humphreys. Yes

Counc. Where did Mr. Ricketts stand?

Humphreys. Mr Ricketts stood just by me.

Counc. Now tell us whether you saw this Stab given?

Humphreys. I did not see it given.

Counc. Did you observe that Mr Ricketts had any Thing in his Hand?

Humphreys. He had nothing in his Hand but a Bit of Cake.

Counc. Did you observe that Mr Ricketts had struck Mr Chetwynd?

Humphreys. No, he had not struck him, and was not seemingly in any Anger.

Counc. You say that at this Time Mr Chetwynd came up and stabbed Mr Ricketts.

Pris. Counc. No, that is not right.

Court. She said Mr. Ricketts told her so.

Pris. Counc. I don't doubt your Candour, but you are mistaken in the Evidence; repeat it again.

Humphreys. I saw Mr. Ricketts come from the Scrutore, and he said, Mr. Chetwynd has stabbed me. Says I, Mr Ricketts you joke; Mr Ricketts had put his Hand to his Side: I bid him take his Hand away, and then I saw a little Blood; Mr Chetwynd, said I, You have done very well; Mr Chetwynd said, Hannah, if I have hurt him, I am sorry for it.

Pros. Counc. Did you observe who were in the Room?

Humphreys. I saw Mr. Hamilton, Mr. Ricketts, and Mr. Chetwynd.

Court. Did you hear Chetwynd ask Ricketts for his Piece of Cake?

Humphreys. I did not hear him.

Counc. What became of Mr Chetwynd after that? where did he go?

Humphreys. He went out of the Room.

Counc. How long did he continue in the House?

Humphreys. He continued in the House till Tuesday Morning.

Counc. That was the next Morning; did he give any Notice of his going away?

Humphreys. I cannot tell that.

[ Council for the Prisoner on the Cross Examination. ]

Counc. Tell us where this Room was, where you heard the Noise before you went to them?

Humphreys. It was on the same Floor.

Counc. Did you hear any rustling of Feet, or only their Tongues?

Humphreys. It was only their Tongues; it is my customary Way when I hear any Noise among the young Gentlemen to go to them, in order to persuade them to be quite.

Counc. Where was Mr Chetwynd when you came into the Room?

Humphreys. Mr Chetwynd was at his Bureau, and Mr Ricketts was standing in the Room, and he said he wanted a Piece of Cake of Mr Chetwynd.

Counc. Was this Mr Ricketts's Room?

Humphreys. No, Mr Ricketts had a Room up another Pair of Stairs.

Counc. Then he was got into Mr Chetwynd's Room, which was the Occasion of your asking him what he did there?

Humphreys. Yes. 'Twas the Room where Mr Chetwynd lay; he had not a Room to himself.

Counc. Was there any Conversation about the Cake, or any asking for Cake before you went into the Room?

Humphreys. I don't know, he only said he wanted another Piece of Mr Chetwynd's Cake.

Counc. Was Mr Chetwynd's Back toward you?

Humphreys. Yes.

Counc. Then consequently it must be so to Mr Ricketts ?

Humphreys. Yes. - Mr Chetwynd put out his Arms a little to keep Ricketts from the Cake. It was but a very little way thus, extending his Arms a little from his Body, and raising them up, and Mr Chetwynd said, Don't Mr Ricketts.

Counc. Did you observe Mr Ricketts then offer to take the Cake, or to touch Mr Chetwynd ?

Humphreys. I only observed him to take the Cake.

Counc. But did you see him touch him?

Humphreys. I did not see him touch him.

Counc. That is very odd, because putting out his Arm, and saying don't shews as if he had done something?

Humphreys. He might touch his Cloaths, when he took away the Cake.

Counc. Was not he taller than Mr Chetwynd?

Humphreys. He was a great deal taller than Mr Chetwynd, he might for his Heighth reach over Mr Chetwynd, and take the Cake.

Counc. Could he take it over his Shoulder, or over his Head without touching him?

Humphreys. Over his Shoulder he might do it without touching him.

Counc. Did he take the Cake over his Shoulder or over his Head?

Humphreys. I think it was over his Shoulder.

Counc. Did not Mr Ricketts laugh when he had got the Cake?

Humphreys. Mr Ricketts came away laughing, and said he had got a Bit more Cake.

Counc. Was there any Motion or Action between them before this Thing happened.

Humphreys. There was not any Motion or Action at all that I saw before this happened.

Counc. Did you stand facing the Bureau?

Humphreys. The Bureau was behind my Back, and Mr Ricketts stood facing me, as I stood Side-ways to the Window, with my Work in my Hand, and Mr Chetwynd was by my Right Hand, we all three in a manner touched one another.

Counc. How could this be done without your seeing it?

Humphreys. I did not see it done.

Counc. And then the first Thing you heard was, that he was stabbed?

Humphreys. That was what Mr Ricketts said.

Counc. And you at that Time did not believe it?

Humphreys. No, I did not believe it; for when Mr Ricketts said he was stabbed, I lifted my Eyes off my Work, and said, Mr Ricketts, you joke?

Counc. Was there any Blow given?

Humphreys. I believe there was no Blow; I did not see any; I did not at first believe that there was a Wound.

Counc. As you did not believe it, it is plain that Mr Chetwynd did not believe it; for, he said, if I have hurt Mr Ricketts, I am sorry for it. Did he look to have Anger in his Countenance?

Humphreys. No; he looked with Concern; and said, Hannah, If I have hurt Mr Ricketts I am sorry for it.

[ Mr Beaston Long sworn. ]

Prosecutor's Council. Pray, Mr Long, inform the Court what Discourse passed between you and the Deceased, after he had received the Wound?

Mr Long. I came to Town on Monday Night, the 26th of September, and found a Letter from Mr Clare; wherein he acquainted me, that Mr Ricketts had met with an untoward Accident, and had received a Wound from a young Gentleman in the House, but that he thought there was then no Danger; this Letter having been wrote in the Morning, I enquired if there had been any subsequent Message from Mr Clare; I was told there had not; I did not go to Mr Ricketts that Night, not thinking there was any Occasion for so doing; but, in the Morning, I determin'd to take the Advice of Mr St Hill, who being a Gentleman very emiment in his Profession, we always take his Opinion, when any Accident happens to the young Gentleman under our Care; I wrote a Letter to him, and desired he would meet me at the Academy that Day [that was on Tuesday] which he did; and I found there Mr Shipton and Mr Middleton, who had likewise been called in; these three Gentlemen, with Mr Mccullock, the Surgeon of the House, viewed Mr Ricketts's Wound, and thought him in very great Danger; they continued attending him till Thursday Morning the 29th, when he died.

Counc. What Account did Mr Ricketts give you of the Occasion of this Accident?

Mr Long. Mr Ricketts told me, that on the Monday, about Noon, he was sent to call Mr Chetwynd to sence, and found him in the Dining-Room, with a Cake, of which he asked him for a Piece, which he gave him; that he then asked Mr Chetwynd for another Piece, which he refused; and cut a Piece of the Cake, and laid it upon his Bureau, which stood at the End of the Room; Mr Ricketts, to teaze Mr Chetwynd, for having refused him, (but without any Intention of eating or keeping it) took up the Piece of Cake, carried it to the middle Window, and said to a Maid, who stood there, Hannah, I have got a Piece of Cake; and, he said, that Mr Chetwynd followed him, and immediately stabbed him in the Belly.

Prisoner's Council. You said, you came to Town that Monday, did you see Mr Ricketts that Day?

Long. I came to Town that Monday Night, and found a Letter from Mr Clare; I did not see Mr Ricketts that Day; for I did not apprehend there was so much Danger, as I afterwards found there was.

Counc. How many Surgeons had you?

Long. There were four Surgeons; three were called in; and there was Mr Mccullock; the Surgeon of the House.

Counc. I should be glad to know whether Mr Ricketts gave any Account to you of any Passage that happened immediately after the taking of the Cake?

Long. He said, that after he had taken the Piece of Cake, he carried it to the middle Window, where the Maid stood; and said, Hannah, I have got a Piece of Cake; and that Mr Chetwynd came up to him, and stabbed him without speaking a Word.

Counc. Without whose speaking a Word?

Long. Without Mr Chetwynd's speaking a Word.

Counc. Did you ask him in what Manner he had lived with this young Gentleman the Prisoner, whether they did not live in Friendship?

Long. He said, he never had had any Quarrel with him; and I have Reason to think it to be true, because, Mr Ricketts was a Lad of a remarkably good-natured Disposition.

Counc. Did you ask him any thing farther?

Long. Mr Ricketts was generally, when I saw him, in such extreme Torment, that I did not care to trouble him with too many Questions.

Counc. Did not he tell you he forgave him?

Long. He did say that he forgave him.

Prosecutor's Council. Call Mr St Hill?

Prisoner's Council. There is no Occasion for it.

Prosecutor's Council. The Jury must have Satisfaction, that the Wound was the Occasion of his Death.

[Mr Peter St Hill, sworn]

Counc. Pray, Sir, give the Court an Account in what Condition you found the Deceased?

Mr St Hill. On Tuesday the 27th of last Month I received a Letter from Mess. Drake and Long, desiring me to go to Mr Clare's Academy in Soho-Square, to see a young Gentleman, that they had the Care of, who the Day before had been accidentally wounded: I met there Mr Shipton, Mr Middleton, and Mr Mccullock; and by Mr Mccullock's Account of the Wound, who first dressed him, and the Symptoms that attended it, we had too much Reason to fear, that it had penetrated into the Cavity of the Belly, and that some of the Viscera were wounded; for his Belly was much swell'd; and cross the upper Part of it so very painful, as to deprive him of all rest, and his Pulse were extreamly quick, and contracted. The next Day we met again - He had had a very unquiet Night; his Pulse were extreamly quick and low; and though his Belly was not so much swell'd, yet his Pain cross the upper Part of

it was more severe, and attended with a continual Hickup, and frequent bilious Vomitings.

Counc. Pray, Sir, inform us, whether you think that Wound was the Occasion of his Death? What Depth was the Wound of?

Mr St Hill. It is not easy to know the Depth of a Wound, after it has penetrated into the Cavity of the Belly: But, upon the whole, I think we have given our Opinion, in such a Manner, that nobody will doubt, but that the Wound was the Occasion of his Death.

Counc. Then you do think that Wound to be the Occasion of his Death?

Mr St Hill. I do think it to be the Occasion of his Death.

Counc. In what Part was the Wound given?

Mr St Hill. It was on the Right side of the Belly, two Inches obliquely below the Navel.

[ A Piece of the Blade of the Knife was produced, which was about three Inches long, and sharp at the Point. ]

Council to Humphreys. Did you see the Knife in Mr Chetwynd's Hand?

Humphreys. Yes.

Counc. What kind of a Knife was it?

Humphreys. It was a Knife with a long Handle.

Counc. Was it a long Blade?

Humphreys. It was such a Blade as this; this is but a Piece of it.

Counc. It is a French Couteau.

Prisoner's Council. It is no such Thing, it is only a common French Knife.

[Mr Peter Mccullock , sworn.]

Council. Mr Mccullock, pray, give an Account how you found the Deceased?

Mr Mccullock. I was called at half an Hour after One, on the Monday, to go to Mr Clare's; when I came there, I asked to see the Knife, and the Knife was produced

Counc. Was it produced broke?

Mccullock. Yes, it was produced to me then broke, as it is now, I probed the Wound; but did not find, at that Time, that it had penetrated into the Cavity of the Belly; the Deceased's Pulse were extreamly low, but I thought that was owing to the Fright: I went the next Day; and then upon searching the Wound, I found it had penetrated into the Cavity of the Belly, and found it to be a very bad Case; upon that Mr Middleton was sent for; and after that Mr St Hill, and Mr Shipton.

THE COUNCIL for the Prisoner called no Witnesses, admitting that the Fact had been fairly laid before the Court by the Evidence, and acknowledged the Candour of the Gentlemen concerned for the Prosecution, in representing it to the Jury without any Aggravation: but insisted, on his Behalf, that however his Hand might have been unhappy his Heart was innocent; that this Fact therefore could not amount to Murther at Common-Law, which the Lord Coke defines to be An unlawful killing another with Malice aforethought, either expressed by the Party or implied by the Law; that, in this Case, there was not the least of that Ingredient, their own Evidence having shewed they were Friends, Friends to the last Hour, Friends to the dying Hour; when the Gentleman said, he forgave him. That it being proved there was a Friendship subsisting, it would be talking against the Sense of Mankind, to say the Law could imply any thing contrary to what is plainly proved. That Deliberation and a Cruelty of Disposition make the Difference between Manslaughter and Murther. For which Purpose Holloway's * Case was cited.

* Vide Appendix, No 1.

If A be passing the Street, and B meeting him, takes the Wall of A, and thereupon A kills him, this is Murther; but if B had justled A, this justling had been a Provocation, and would have made it Manslaughter, 1 Hale's Hist. Pl. Cr. 455.

If I see another's Child beat, or Wife debauch'd, it would be Murther in me to kill the Party, not so in the Parent or Husband.

A sudden Challenge and fighting immediately, the Challenge is held to be a sufficient Provocation.

The Law makes a Difference between a Person's killing another, when he is doing a lawful Act, and when he is doing an unlawful Act. If the Master designeth moderate Correction to his Servant and accordingly useth it, and the Servant by some Misfortune dieth thereof, this is not Murther, but per infortunium; because the Law alloweth him to use moderate Correction and therefore the deliborate Purpose thereof is not ex malitia;

But if the Master design an immoderate or unreasonable Correction, either in respect of the Measure, or Manner, or Instrument thereof, and the Servant die thereof; if it be done Easily, and without De-liberation,

this would be Manslaughter; if done with Deliberation and Design it would be Murther, L. C. J. Hale in his Hist. Pl. Coron. p. 454.

Shall the young Boy at the Bar, who was doing a lawful Act, be said to be guilty of Murther; he was rescuing what was his own; the Witnesses have told you, that after he had given the poor Boy Ricketts a Piece of Cake, Ricketts went to him for more; he denied it him; he had a Right to keep his Cake, the other had no Right to take it; and he had a Right to retake it.

There are Cases in the Books which make a Difference between Murther and Manslaughter: If a Man takes * up a Bar of Iron and throws at another it is Murther; and the Difference in the Crime lies between a Person's taking it up, and having it in his Hand; Chetwynd had the Knife in his Hand, and upon that a Provocation ensues, for he did not take the Knife up; if he had, that might have shewn an Intention to do Mischief. It may be doubted, whether or no, when he had this Knife in his Hand for a lawful Purpose, and in an Instant struck the other, whether he considered he had the Knife in his Hand; for if, in his Passion, he intended to strike with his Hand, and struck with the Knife, not thinking it was in his Hand, it is not a striking with the Knife.

* Vide Appendix, No. VI.

That in respect to the Statute of the first of James I. + it had always been looked upon as a hard Law, and construed therefore constantly very strictly by all the Judges in favour of the Prisoner. That when the Facts amount only to Manslaughter at Common-Law, it has been the Custom of the Courts ++ to acquit upon this Statute.

+ Vide Appendix, No. II.

++ At a Meeting of all the Judges, on Saturday the 28th of April, 1666, at Serjeants-Inn, to consider of such Things as might in Point of Law fall out in the Trial of the Lord Morley, who was on Monday to be tried by his Peers for a Murther; they were all of Opinion, that the Statute of 1 Jac. for stabbing a Man not having first struck, nor having any Weapon drawn, was only a Declaration of the Common-Law, and made to prevent the Inconveniencies of Juries, who were apt to believe that to be a Provocation to extennate a Murther, which in Law was not. Kelyng 55.

That this Act was made for a particular Purpose ||: On the Union of the two Kingdoms, there were national Factions and Jealousies, when wicked Persons to conceal the Malice lurking in their Hearts, would suddenly stab others, and screen themselves from the Law, by having the Act looked upon as the Result of an immediate Quarrel.

|| This Statute was enacted in the Time of King James the First, when many Animosities arose between the English and the Scotch, who using Daggers were accustomed to stab many of the English, ex improviso, which could not have been done by a flat Sword, the usual Weapon of the English; therefore this Statute was designed to secure defenceless People from Surprize, supposing that whoever struck would be prepared. Rex v. Keite. Lord Raymond 139.

That it was to be considered, whether there was not Evidence to except this Case from the Letter of the Law: At the Beginning of the Fray Ricketts had a Knife in his Hand; and it was one continued Act. And another Question was, whether there was not a Struggle; here was the Cake taken, and in endeavouring to get it again this Accident happens; on the first taking of the Cake, it is in Evidence, that Chetwynd was forced to extend his Arms to keep the other off; now there was no Occasion for him to extend his Arms, unless the other was coming to take it from him; and then a Struggle is a Blow. In Reneer's Case, (cited in the King and Keite Cymbal gave no Stroke but in struggling, and yet it was adjudged but Manslaughter in Reneer L. Raymond 143.

If a Man hath done a Trespass, and is not continuing in it, and he that hath received the Injury shall thereupon beat him to a Degree of killing, this, faith the Lord Chief Justice Holt (Kelyug 132) is Murther: but this Act of the Deceased is a Trespass, and the not restoring what he had taken was a continuing in the Trespass, and is such a Provocation as will make it Manslaughter at Common-Law.

That this Statute is not to be literally interpreted, for taking up a Candlestick to throw at another has been judged a Weapon drawn ~.

~ See Page 316. Col. 1 3.

Meer stabbing is not within the Act; when a Man is taken in Adultery with another Man's Wife, if the Husband shall stab the Adulterer, or knock out his Brains, this is bare Manslaughter. 1 Vent. 158. Raymond 213. Kelyug 137.

A Man must intend to kill to be within the Statute; and must intend to stab, for throwing a

Hammer is not within the Act. Williams's *Case cited in Kelyng 131.

* Vide Appendix, No. III.

That some Degree of Malice is + required in this Case, as well as at Common-Law. The Act indeed has taken away the Necessity of the Proof of Malice, and laid the Negative upon the Criminal, and here the Negative is proved. The Intent of the Statute was to take away the Benefit of the Clergy from cruel and bloody minded People; 'tis impossible to conceive, that the Parliament should, at all Events, condemn to Death those who had no preconceived Malice.

+ Vide p. 316. Col. 2. &. 3.

But the Case most strongly insisted and relied on in behalf of the Prisoner, was Buckner's ++ Case on the Statute, wherein the Judges all agreed, because there was some Provocation and no preconceived Malice, that he was not within the Act of Parliament.

++ Vide Appendix, No. IV.

THE COUNCIL for the Crown, in Reply to the Arguments and Cases insisted upon on behalf of the Prisoner, submitted to the Court, whether (since the only Points insisted upon by way of Defence for the Prisoner, were Questions of Law, in which the Jury were to be guided by their Opinion) the Facts proved and admitted, did not clearly, in the first Place, amount to Murther at Common-Law; and in the second Place, whether there could he the least Doubt in Point of Law, but that this Case was within the Statute of 1 James 1 8.

Upon the first it was admitted, that to constitute Murther there must be Malice.

But it was argued, that Malice was of two Kinds; either express and in fact, or implied by Law

That when one Person kills another without Provocation it is Murtuer ||, because the Law presumes and implies Malice from the Act done.

|| He that doth a cruel Act voluntarily, doth it of Malice prepensed, 3. Inst. 62. Some have been led into Mistake, by not well considering what the Passion of Malice is; they have construed it to be a Ranmour of Mind lodged in the Person killing, for some considerable Time before the Commission of the Fact, which is a Mistake arising from the not well distinguishing between Hatred and Malice. Envy, Hatred, and Malice, are three distinct Passions of the Mind. Lord Chief Justice Holt in Mawgridge's Case, Relying 126.

And therefore, wherever any Person kills another it is Murther, unless some sufficient Provocation appear.

But that it is not every Provocation which extenuates the killing of a Man from Murther to Manslaughter.

A slight or trivial Provocation is the same as none, and is not allowed by Law to be any Justification or Excuse for the Death of another.

And therefore no Words of Reproach or Infamy, whatever provoking Circumstances they may be attended with; no affronting Gestures or deriding Postures, however insolent or malicious, are allowed to be put in the Balance with the Life of a Man, and to extenuate the Offence from Murther to Manslaughter. Kelyng 130. Croke El. 779. ~

~ See this latter Case at large Appendix, No. V.

For the same Reason, no sudden Quarrel upon a slight Provocation shall justify such an act of Cruelty as one Man's stabbing another, though it is done immediately in the Heat of Passion. As if two Persons, playing at Tables, fall out in their Game, and the one upon the sudden kills another with a Dagger; this was held to be Murther by Bromley 27 Eliz. at Chester Assizes. Crompton's Justice 23. Kelyng 128.

In like manner, no Trespass on Lands or Goods shall be allowed by Law to be any Excuse for one Man's attacking another in such a Manner as apparently endangers his Life, and could not be intended merely as a Chastisement for his Offence; because no violent Acts beyond the Proportion of the Provocation receive Countenance from the Law.

And therefore if a Man beats another that is trespassing upon his Goods or Lands, and does not de, he will be justified by Law; because what he does is only in Defence of his Property, and no more than a Chastisement to an Offender.

But (says the Lord Chief Justice Holt ) if one Man be trespassing upon another, breaking his Hedges, or the like; and the Owner, or his Servant, shall upon Sight thereof, take up an Hedge

Stake, and knock him on the Head, that will be Murther because it is a violent Act, beyond the Proportion of the Provocation. Kelyng 132.

That applying the Rules of Law to the present Case, it was plain, that the violent Act done, bore no Proportion to the Provocation. All the Provocation given was taking up a Piece of Cake, which is not such an Offence, as can justify the Prisoner's attacking the Person, who took it up, with an Instrument, that apparently endangered his Life, or rather carried certain Death along with it.

And lastly, that Gray's Case + (Kelyng 64, and 133) was much stronger than the present : Where a Master, who was provoked with the Neglect, Disobedience, and Insolence of his Apprentice, and had therefore a Right by Law to chatlise him; immediately upon receiving the Provocation, took up a Bar of Iron, at which he was then working, and struck his Apprentice, who afterwards died of the Blow. This was by all the Judges held to be Murther, notwithstanding it was done upon a sudden, and notwithstanding the Provocation, and the Right which Grey had as a Master, to correct his Servant. For having exceeded Measure herein, what he did was malicious.

+ Vide Appendix, No. VI.

Upon the second Indictment it was said, that the Gentlemen who had argued on behalf of the Prisoner, had, in order to raise a Doubt upon this Point, in Effect contended that the Statute of James I, should never be allowed to comprehend any one Case whatsoever, or extend to any one Offender.

For if Persons indicted upon that Statute, were to be acquitted wherever the Case would have been Manslaughter at Common-Law, the Statute would be entirely frustrated, and have no Kind of Effect whatsoever.

Since it was only made in order to exclude such Persons as stabbed others upon the sudden, not upon their Guard, from the Benefit of Clergy; and was intended as a sort of Correction to the Common-Law, by restraining such Offenders, thro' Fear of due Punishment. who were emboldened by presuming on the Benefit of Clergy, allowed by the Common-Law.

But if it is to exclude none from their Clergy, who at Common-Law would have been entitled to it, it can never have any Effect, and may as well be repealed.

That whatever the Reasons might be which such gave Rise to this Statute, the Legislature thought it of general publick Benefit, and therefore afterwards continued it by a subsequent Law.

And, if the Statute is to have any Force or Effect at all, there can't be a Doubt but that is must extend to the present Case.

It is expressly within the Words; Mr. Ricketts, was stabbed, having then no Weapon drawn in his Hand, and not having before struck the Person who stabbed him.

It is plainly within the Intention; which is declared in the Preamble to have been in order to punish stabbing, or killing upon the sudden, committed in Rage, or any other Passion of the Mind, &c.

And the principal Reasons upon which the Determination in Buckner's Case is founded, conclude strongly against the Prisoner.

For it is there arga'd, that Buckner was not with in the Statute, because it appeared to have be made to prevent sudden killing, the worst of a killing, of a Person not upon his Guard.

And secondly, because in that Case the Party slain might have foreseen the Danger, and defended himself.

But the unfortunate Person killed in this Case, had no Opportunity either of foreseeing the Danger, or of avoiding it, or making any Defence but was killed on the sudden, before he could apprehend any Danger.

And therefore it was submitted to the Court, whether upon the Facts prov'd and not denied, the Consequence of Law was not clear that the Prisoner was guilty within both Indictments.

MR BARON REYNOLDS and Mr. Recorder (being the only Gentlemen of the long Robe on the Bench, when Mr. Chetwynd was tried taking Notice of the Points of Law that had arisen, the learned Arguments of the Council, and the many Cases cited upon this Occasion, were of Opinion, that it would be proper to have the Facts found specially, that they might be put in a way of receiving a more solemn Determination. A Special Verdict was accordingly on all Sides agreed on, and drawn up to the following Purpose, viz.

The King against William Chetwynd , the same against the same, and the same against the same.

We find that Thomas Ricketts , on the 26th of September last, being a Scholar at Mr Clare's Academy, in square, was in a Room in the said Mr Clare's House, in which the said Mr Chetwynd used to lie, (and not Mr Ricketts) in Company with the Prisoner William Chetwynd , William Hamilton , Samuel Malcher , and Hannah Humphreys , a Maid-Servant in the said Mr Clare's Family; that the said Mr Chetwynd, the Prisoner, having his own Cake in his Hand, which was a hard Cake, called a Simnel, and hard to cut, the Deceased, Thomas Ricketts , asked the said Mr Chetwynd to give him a Piece, upon which the said Mr Chetwynd gave him a Piece; that the said Thomas Ricketts afterwards asked him, the said Chetwynd, to give him some more of his Cake, which the said Chetwynd refused, and thereupon, the said Chetwynd went out of the said Room, with his Cake under his Arm, and the Deceased followed him, out of the said Room; upon which, the said Chetwynd returned again, into his said Room, and went to his own Bureau, and cut another Piece of the Cake for himself; the said Ricketts offered to lend the said Chetwynd his Knife to cut the Cake, and at the same Time pulled his Knife, being a Clasped Knife, out of his Pocket, and opened it, but the said Chetwynd, refusing to make Use of the said Ricketts's Knife, saying, he had a Knife of his own, the said Ricketts put up his Knife again, and immediately after this, the said Chetwynd being then at his Bureau, cut off a Piece of the said Cake with his own Knife, being a common Knife, and such as Mr Chetwynd, and his School Fellows generally used, and laid the same Piece of Cake upon the Top of his Bureau for himself; that the said Chetwynd, standing then with his Back to the rest of the Company, was putting the rest of his Cake into his Bureau, and, whilst he was so doing, the Deceased came up, and put his Hand over the said Mr Chetwynd's Shoulder, whereupon, the said Mr Chetwynd raising his Arms, said to the said Deceased, don't Mr Ricketts, the said Mr Ricketts, immediately snatched the said Piece of Cake away, against the Consent of the said Mr Chetwynd, which lay upon the Top of the said Bureau, and went up to the said Maid-Servant, who was about two or three Yards off, and said Laughing, Hannah, I have got a Piece of Mr Chetwynd's Cake, which he showed to her in his Hand; that thereupon, immediately the said Mr Chetwynd followed the Deceased, with his Knife in his Hand, and demanded the said Mr Ricketts to return him his Piece of Cake, the Deceased, Mr Ricketts, re turned no Answer to this, but continued laughing, and did not return the Piece of Cake; upon which, the said Mr Chetwynd struck the said Mr Ricketts backhanded, with the said Knife which he had kept in his Hand all along, and with which he had cut he said Cake, ( the said Ricketts being then only in his Waistcoat, which was at that Time unbuttoned) and gave him a Wound upon the Right-side of the Belly below the Navel, which penetrated into the Cavity of the Belly, (the Deceased not having before struck the Prisoner, and not having at that Time any Weapon in his Hand) that immediately after, the Deceased cried out, Hannah, Chetwynd has stabbed me, and then the said Hannah, said to the Prisoner, What have you done? Upon which the Prisoner looked on the said Hannah, with Concern, and said, If I have hurt Mr Ricketts, I am sorry for it; We find that there never had been any Quarrel or Malice, between the Deceased an d the Prisoner, but that they constantly had lived in Friendship together. And we find likewise, that the Deceased was about the Age of Nineteen *, and Mr Chetwynd about the Age of Fifteen; and that of this Wound the Deceased died, on the 29th of the said September; and whether upon the whole, the Prisoner is guilty of all, or any of the several Indictments, the Jurers submit to the Judgment of the Court .

* That Mr Ricketts was about Nineteen Years of Age was admitted: No Evidence being offer'd as to the Age of the Prisoner, the Jury form'd their Judgment thereof, on seeing him.

Allen Evans ,

Samuel Bowler ,

Charles Carleton ,

Francis How ,

Benjamin Ingram ,

Jacob Lebat ,

Jonathan Alderton ,

Peter Archambo ,

John Archambo ,

Benjamin Tickner ,

John Holmes ,

Thomas Hogg ,

[No punishment. See summary.]

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