The Proceedings of the Old Bailey

 

751.   JOHN FRAY was indicted for that he, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the 11th of September last, with force and arms, at the parish of St. Pancrass, upon one   Thomas Wakin , in the peace of God and our Lord the King then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that he the said   John Fray , him the said   Thomas Wakin in both his hands, did then and there take, and the said Thomas into a certain pond of water there situated, feloniously, wilfully, and of his malice aforethought, did cast and throw, by which means of casting the said Thomas, he the said Thomas was then and there suffocated and drowned, of which suffocating and drowning the said Thomas then and there instantly died; and so the jurors aforesaid say, that the said   John Fray him the said   Thomas Wakin did kill and murder .

The prisoner was also charged with the like murder on the coroner's inquisition.

  THOMAS WALLIS sworn.

On Sunday last about six in the afternoon, as I was going in  Tottenham-court-road , I saw a mob of people, I went to enquire the matter, I went near the place, and I was informed that they were going to duck a pick-pocket, then I returned to inform my wife and a friend in the road of what was the matter.

Court. Was this assembly of people near any pond? - Yes.

Was it a large pond? - Yes, it has been gravel pits, and there is water in it, and my wife, and friend (the wife of another tradesman) crossed the road, and went to the north side of the pond, and when I came there I saw a boy about fifty or sixty yards distance in the water, about five or six yards from the shore, he appeared to be about sixteen or seventeen years old, he was above his middle in water when I first saw him, I left my wife and friend and went to the place where the boy was, and when I came near the place the boy was crying and holding up his hands, and begging that the people would give him leave to duck himself; just as I came to the pond side the boy took his hat off his head and flung it into the road near the pond where I stood, I thought he was going to duck himself, but he did not, he dipped himself down into the water.

Court. How high did the water come then when he dipped himself down? - As near as I can recollect about his navel or above his breast, he said he could not swim and begged they would give him leave to duck himself, and then somebody persuaded him to come out, he came out near the shore, an d some man, as the boy was coming out, in a blue coat, a genteel looking man, spoke to the boy and said a rash word, but what it was I do not recollect.

Court. Did he speak with warmth or how? - He spoke with warmth, and the boy as he came out came near where I was, and I had a hard matter to keep from being pushed in, he came so near to me, the prisoner at the bar says give me hold of him or give him to me, I cannot say which, I was so flurried.

Court. Where was the prisoner? - He stood by the side of the pond about five or six feet from me, he then took him by the side of the collar and the boy fell down and begged for mercy as he could not swim.

Court. How do you mean fell down on his knees, or how? - He tumbled down. The prisoner took hold of him by the thighs or some part of his body, I cannot say what and lifted him off the ground and threw him into the water, and as he threw him into the water, the boy holding fast by the prisoner pulled him in, they both went into the water together about a yard from the shore, or hardly so much, when they were both in the water, the boy either got loose from the man or they were severed from each other.

Not by any other persons assistance? - There was no body in the water but themselves; then the prisoner took the boy a second time and ducked him under the water.

Court. Had he hold of his hand then? - He had hold of some part of his body, his clothes, or something; then he gave him a push from him, and the boy went a couple of yards from him, swimming, as I thought; I then saw him struggling for about a minute at the top of the water. I never saw any body so near death, and I never saw him more.

Court. When the boy was struggling on the surface of the water, what did the prisoner do? - The prisoner was on the side of the water standing; a woman standing by me said, she was d - d if the boy was not drowned; I said to the people by me, I think it proper that the man who threw in the boy should be secured. I turned about, and saw the prisoner on the outside the people; I went up to him immediately, and took him fast by the collar; says I, you rascal, how dare you to drown the boy? He made some reply to me, but what, I really do not recollect; there were several people assisted me, but as the man had been in the water I was afraid of getting

myself wetted and dirtied, I let go of him; somebody laid hold of him; he was at the edge of the pond, and he went into the water; I saw him in the water, when he was in the water: I then left them, and went to my wife, that was about fifty yards off: what I am telling you now was what I omitted when I was examined before the coroner. I went to my wife, and told her that the boy was drowned; that I had taken hold of the man that threw the boy into the water by the collar, and that I would go and see whether the prisoner was secured; she begged I would not, but I did; when I came to the pond I saw the prisoner in the water, and a good way up to his middle; there were a couple of men stripped that were diving after the boy.

Court. Was the prisoner diving too? - No, Sir, he was not above his middle; he was standing about breast high in the water.

Did he offer to do any thing? - I did not see him.

For what purpose could he have got up to his middle in the water? - I cannot say; when I returned from my wife to the water I saw the prisoner in the water, but his purpose I do not know.

How far was he from the man? - About four or five yards; he did not return till he found he was out of the depth; where the man died was a very deep place, and where he stood was not deep.

How large is this pond? - A largish pond; it had been a gravel pit, it is now a pond, where boys go a bathing, and where they get logs and swim about.

From the circumstance, and your observation, what do you suppose was the purpose of the prisoner being in the water up to the middle? - I suppose he went to see if he could get the boy out; he went near the place where the boy went out, but when he found it was deep he returned; when the prisoner came out of the water the second time, somebody laid hold of him.

How long was that after you saw him the last time? - About a couple of minutes; I went and looked at him, to see that it was the same person, and then I left him.

Court. Are you sure the prisoner is the same person? - I really believe he is the same man.

Can you be positive? - He has the same dress, and the same appearance.

The question is, whether he is the same man? - I really believe he is the same man, I have no reason in the world to doubt it is the same person.

What number of people do you suppose might be assembled about this pond? - Near the place where I was there might be one hundred; but there were people all round; a great concourse of people.

The charge against the boy was, that he had picked some body's pocket. - Yes, Sir; I was not there at the first.

Did you hear the boy say any thing about that? - No, Sir, only the boy was begging for mercy.

Prisoner. Did not you see the boy and me down together? - Yes, I did, when he first threw him into the pond.

Did not you see me follow the boy, and then, says I, my good Sir, I cannot swim, I went out of my depth? - I never heard him say any such thing, but I saw him, I suppose that was twenty minutes after I lost sight of the boy.

But you staid talking with your wife some time, and telling her you had collared the man, then you went back to see the man again, and then it was you saw him so deep in the water? - Yes.

Court to Jury. You see, gentlemen, he did not see him go into the water the second time, but when he returned he was in the water.

  JOHN ELLIOTT sworn.

What did you see of this unfortunate business? - I was coming up Tottenham-Court Road between five and six last Sunday afternoon, and I saw a mob with a pickpocket, and I went up to the water, and I saw a boy, I knew him very well; he used to draw beer.

How many people were there? - Nigh upon a thousand people; I knew the boy, and I called to him.

Where did you see the boy when you came up? - In the pond.

How far in? - In, I suppose, five or six yards from the shore, and I called to him; says I, Tom,   Tom Wadham , and I said, come out, nobody shall hurt you in the world; he was a long while before he could see me, but when he could see me he made to me, and came to the shore-side to me; some gentlemen says to me, as I was catching hold of the boy's hand, oh! this is some fellow of yours, so I turned round to look at him, and the boy just caught hold of my hand, and the prisoner then came and catched him out of my hand, and he said, come here, my man, says he, I will take care of you; as soon as ever he caught hold of him, the boy fell a screaming, and he took him under the hams, and by the collar, and threw him into the pond; afterwards, whether the prisoner did go in himself, or whether some body pushed him in, I cannot say.

How far did he throw the boy in? - I suppose a yard, or a yard and a half, or thereabouts.

Then the prisoner was in the water himself? - Yes.

But whether he went in, or was pushed in, you cannot say? - I cannot; then the people that were there said, why do not you follow him? the poor little fellow is sinking, the boy is drowning, the boy is drowning; the people hallooed out all to the prisoner, what is the reason you do not catch hold of him? and he made answer, I cannot swim, I cannot swim; the boy struggled greatly, and then two men began to dive after him.

How far did the prisoner go in, do you imagine? - I suppose about five or six yards

Did you see the prisoner come back? - Yes.

Did it appear to you that the prisoner went as far as he could for the depth of the water? - No, I imagine not, he was much about breast high, and he cried out to the mob of people that he could not swim.

Do not you think that the prisoner meant to use his best endeavour to save the boy? - I did not see him make any offer to plunge in after him.

Court. I think, when a man has got as high as you point out, unless he can swim he must necessarily be drowned himself, do not you think so? - I do not think but the man would, if he could get at him in his own safety, but he was afraid of his own life to go after him.

Jury. Are you of opinion that the man exerted himself to the utmost to save the boy? - He never went any otherwise than breast high.

Court. Do you think that the man would have saved the boy if he could? - I do imagine he would, if he could, if it lay in his power.

Did you see the boy taken out? - No, Sir; when he came out of the pond it was in Squire Mortimer's field; and when we had taken hold of the prisoner we secured him.

Did you see the boy taken out? - No, I saw him the next day.

Jury. Was the boy upon the water when the prisoner went in after him or had he sunk? - They were in both together after he threw this boy in, he was in.

Was that declaration that he could not swim, before the boy had sunk or after? - After.

How long after? - About half a minute, the boy was in first, but he was down directly after him.

Prisoner. Did not I pull off my jacket immediately as I was pulled in the water and go after the boy immediately? - Yes, you did pull your jacket off, and went as far as you could go.

Prisoner. The boy's hair and his head were above water, as far as his eyes.

Court. Pray is the pond a level pond or an unequal pond? - It is very unequal.

Jury. Where did the man take off his jacket, when he was in the water or at shore? - I saw him without his jacket, but where it was I cannot swear.

  JAMES POMROY sworn.

I was walking along Tothenham-court-road, and they said there was a thief, I went to the pond, and I laid hold of the boy, there were a great quantity of people there.

Were they charging him as a pick pocket? - Yes, I told the mob the consequence of the pond, that it was a deep place, but that I would take the boy into custody, and take him to a Justice.

What are you? - I am a watchman; and a man who has been a constable belonging to Marybone, one   Thomas Young , said, you ought to be ducked as well as the boy, and I expected it; with that the mob forced him away from me, and my coat was torn in trying to save him, they forced the boy from me and took him into the pond.

Who did? - It was a man in a blue coat, a good creditable sort of a man, but who he was I cannot say.

How did he put him into the pond? - They forced him into the pond, I was glad to get away from the pond for fear of being ducked myself, I went away a little distance from the pond, and I saw the last witness go and call to the boy, he said, young Wadham come out; the boy was close to the pond side, and Elliott had hold of the boy, and with that the prisoner at the bar took him out of his hands, and chucked him into the pond, he caught hold of him and flung him in by main force; after the boy sunk, the prisoner who stood by me, took off his jacket, and went into the pond with intent to save him, he told the mob he could not swim.

Jury. Was it after the boy sunk or before? - The boy was sunk, the prisoner went about breast high, and he told the mob that he could not swim.

Did he go in as far as he could, without losing his own life? - I cannot say but what he did.

Did other persons go in? - There were two or three more went in.

They could swim could they? - They could swim.

Did they dive after the boy? - They did.

When was the boy taken out? - I do not know, I took care of the prisoner, and when I came back he was taken out, I believe it was three quarters of an hour.

Jury. You said in the beginning of your evidence, that you told the people the water was very deep? - I did.

You are sure of that? - Yes.

Do you apprehend the prisoner heard you? - I do not know that he did, there were such a quantity of people that I was affraid of being ducked myself, but I am sure I did say so.

Court to Prisoner. Have you anything to offer on your behalf to the Jury?

Prisoner. Mr. Errington who keeps Kilburne-wells knows me, and Sir   George Rodney would give me a character, but I cannot write, and I could not get anybody to write for me.

  WILLIAM LEICESTER sworn.

I am come voluntarily of my own accord to give evidence of what I saw of the matter, being there present; I was going up Tottenham-court-road, on Sunday evening about six o'clock, and opposite to Midford-place I saw a mob, I went to see what was the matter, and among the mob I met with a Mr. Gascoine, who lives in Monmouth-street, who I knew very well; he told me that two men had been fighting, and that it was over on account of a boy having picked a pocket, and they were going to duck him; I went close to the side of the pond, and I saw the boy forced into the pond by a gentleman in blue, whom I supposed to be the gentleman that had his pocket picked, the mob hallooed out to the boy to duck himself, and the boy begged and prayed, and desired that he might not be ducked; and said, he had rather be whipped, or anything rather than be ducked; upon which he drew backwards to the pond, the length I suppose of five or six yards, he made an attempt to duck himself, but never ducked himself higher than his shoulders; this man Elliot called out to him, then he came out, and when he came to the bank of the pond, somebody put their hand to him, I saw a hand put out, but whose it was I cannot say; upon which several of the mob cried out he had not been ducked half enough, and one man swore he ought to be ducked over head and ears; the prisoner

at the her took him by the collar of the coat, and the waisthand of his breeches, as nearly as I can recollect, in order to throw him in; the boy clung to him, and went in with him; the boy, almost instantly as he was in; I look upon it he was not above two yards from the shore, he began instantly to sink, I suppose it to be from the weight of his clothes; several cried out that the boy was drowning; upon which the prisoner pulled off his jacket, and the prisoner and several people used their best efforts to save the boy.

How nigh did he go? - He went so high at one time, I could but just see one of his shoulders; there was a boy floating about in the pond upon two large pieces of timber, like a Saint Andrew's cross, and he came so near to the place where the boy sunk, that I had my apprehensions whether this timber might hinder the boy from rising; they were very large timbers, almost as long as that table each of them.

Court. From what you observed upon this occasion, you have no conception of any intention in the prisoner to destroy this boy? - Not in the least, I look upon it in no other light, than he was the dupe of the mob.

Did the prisoner know of your coming? - No, Sir, not in the least; I live with Mr. Croft, a silk mercer in Fleet-street, and I told him I should be glad to come, and he gave me leave; I sent my direction to the prisoner this morning, and desired I might be sent for when his trial came on.

Jury. We have heard nothing from any of the other witnesses, respecting this cross piece of timber.

Elliot. I cannot discern it was nigh the boy, it was further off than from here to the window.

Jury to Wallis. Did you see the piece of timber? - I saw it, but it was at a distance, the mob hallooed to the boy to come out.

Court to Jury. Gentlemen, in order to direct your attention to the evidence, it may not be improper for me to make an observation previous to the summing it up; which observation I have stated to my learned brother, and the Recorder, and they concur with me. Gentlemen, this common error of punishing pickpockets by ducking, is a thing that happens, we all know, very frequently; certainly speaking in general upon the subject, it is never accompanied with an intention of the parties acting in it of taking away the life of the offender; according to the course of the law of this country, certainly such a procedure is not strictly justisiable; the constitution of this country has provided a punishment for such offenders, which is to be inflicted on them if they are guilty, upon conviction, in the ordinary course of justice; but yet, gentlemen, we are to consider, that we are men, and that the law gives some indulgence to the infirmities of human nature; and it is in common experience before you all, where certain provocations are given, and a man is stain on those provocations, the law indulges the infirmities and imbecilities of human nature, and allows a jury, from that provocation, to reduce the crime of murder to manslaughter; and I should conceive, in a case like the present, that although by no means it would be a strict justification of the prisoner, yet, it is competent to the jury, taking the circumstances of the case into their consideration, and seeing that there was no particular malevolence or design to destroy the person, to admit that consideration to mitigate the charge, and to reduce it from murder to manslaughter: gentlemen, that is the general idea that I entertain upon a subject of this kind, and in these sentiments my learned brother, and my friend Mr. Recorder, concur: I will therefore now state the evidence: [Here the learned Judge summed up the evidence, and then added] This is an observation which, I think, may be made, that, at least, speaking for myself, this is the first instance that ever I knew of so unfortunate an event following the punishment of ducking; so that you must see there has not been any precedent to give a caution to those people that act upon the sudden effort of passion from the detestation of this business

of picking pockets; there has not been any occasion for any precedent to put people on their guard: I did at the onset take notice to you of the indulgence of the law to the infirmities of human nature, and it does seem clear to me upon this occasion, and the witnesses seem to speak very plainly and evidently, as well as what the last witness concluded with, that the prisoner had no ill intention or malevolence whatsoever; I should therefore think, gentlemen, that you will be well warranted, if you see it in that light, to reduce and mitigate this charge against the prisoner from murder to manslaughter; but if you think that the man had a diabolical intention to destroy one of his Majesty's subjects, (whether he had any personal enmity against him or not, does not signify) then you will find him guilty of murder, but I cannot see any ground to raise such an inference from this evidence, but if you do, you will find him guilty ge nerally upon this indictment.

The jury withdraw for twenty minutes, and returned with a verdict.

GUILTY, Of Manslaughter .

Also guilty of Manslaughter on the Coroner's Inquisition.

To be fined 1 s. and imprisoned six months in Newgate .

Tried by the first Middlesex Jury before Mr. Justice GOULD.