28th October 1807
Reference Numbert18071028-14
SentenceNo Punishment > sentence respited

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686. ANTONIO DEPARDO , alias DEPINO , as indicted for that he on the 30th of December last, in the 47th year of His Majesty's reign , in China , in parts beyond the seas without England; upon William Bourne feloniously did make an assault,

and that he the prisoner with a knife which he in his right hand had and held, him the said William Bourne in and upon the left side of his belly, did strike, stab, and thrust, thereby giving him one mortal wound, of the breadth of one inch and the depth of seven inches, of which he died, and so the jurors say he the prisoner feloniously did kill and slay the said William Bourne .

[The prisoner being a foreigner was tried by a Special Commission.]


William Edwards ,

Anthony Fran . Alderman,

Samuel Howston ,

Nicholas Horn ,

Philip Fernandez ,

Thomas Loveland ,

Charles Giester ,

Joseph Aldridge ,

Edward Frisby ,

Francis Eugene ,

Joachim Menoyo ,

Thomas Dennis .

The case stated by Mr. Attorney General.

Mr. Attorney General. May it please your lordship. - Gentlemen of the jury - the prisoner at the bar, who is a Spaniard, stands indicted for the manslaughter of William Bourne , which offence it is stated he had done in China.

Gentlemen, the circumstances which I have to state to you will be short. The prisoner was serving as a mariner on board an East India ship called the Alnwick Castle - that vessel arrived at China, and was a considerable way up the river; the prisoner, with many of the crew were on shore, and while they were on shore a quarrel and squabble took place among them. I cannot state to you the origin, because I have no witnesses here that were present at it; but I have a person of the name of Burford, who was acting as steward for the captain; he went down among them with William Bourne , the deceased; - he will tell you that he found the prisoner Depardo with a knife in his hand - that he appeared greatly irritated at something that had been done before.

Gentlemen. Burford and the deceased were desirous of taking the knife from him; and Bourne the deceased went up to him for the purpose of taking the knife from him, and after trying to take the knife from him, he stabbed at him; the decease made a second attempt to take the knife; he did not succeed; and while they were closed in the scuffle, he gave him another blow with the knife, of which he died.

Gentlemen, upon that you will hear from the court, under these circumstances, whether the death of the deceased William Bourne fixes on the prisoner the crime of manslaughter - and here a question arises in this case which will be for his lordship to determine; - it is whether the case of the prisoner does not fall under the act of parliament, under which you are assembled to try him - an act of Hen. VIII. cap. 33. Before that act passed no jurisdiction in this kingdom could take cognizance of what took place in a foreign country; by that act his Majesty was authorised to try persons for offences, whether committed within or without the kingdom. - Gentlemen, I shall call the witnesses to prove the facts.

JAMES BURFORD . - Mr. Garrow. Were you in the month of December last servant to captain Prescott on board the Alnwick Castle. - A. Yes.

Q. That ship was in the service of the East India company. - A. Yes.

Q. Where was that ship in the month of December last year. - A. She was lying in Canton in China.

Q. Do you know the prisoner at the bar. - A. Yes, he was a seaman on board that ship.

Q. Do you know whether he entered as a volunteer to serve on board. - A. Yes, at Juan Fernandez from a Dutch ship.

Q. How long had he been on board. - A. I cannot say exactly; about two or three months.

Q. Before this unfortunate affair took place, was he with some of the rest of the crew on shore at Canton. - A. Yes.

Q. Was the deceased Bourne one of the crew of the ship. - A. Yes, he was an Englishman; the prisoner was an Spaniard. Bourne and me were together at the affray.

Q. Were there only foreign sailors in this party. - A. Foreigners and Englishmen too; when I went to them I found the prisoner in the ring, among the people, with his knife drawn, attempting to stab several of the crew; I immediately went into the ring and desired the prisoner to come to the factory. As soon as the prisoner saw me he came up with the knife and attempted to stab me; I immediately put out my stick to keep him from me; as soon as he came close enough to me he let his arm fall. The deceased Bourne came to me, and said, do not go near him, he has got a knife in his hand; I made answer I see it, and I intend to take it from him; the deceased then said I will take it from him. He then went up to the prisoner and attempted to lay hold of him; he got hold of his left arm, the knife was in the prisoner's right hand; he pushed the prisoner against the rails with some violence; that moment Depardo made a thrust at Bourne, and slightly wounded him somewhere about the belly near the navel. The deceased Bourne then attempted to lay hold of his hand a second time; he again missed it; Depardo then gave him the second thrust very violently, he thrust him in the belly. Bourne then immediately fell from the prisoner and said that he was stabbed. The prisoner then threw his knife over his head over the rails that were behind him.

Q. Did you afterwards see the knife taken from the place where it fell. - A. No. I took the prisoner; I saw Bourne in half an hour afterwards, he was laying on his back about an hundred yards from where he received the wound, with part of his entrails out.

Q. How soon afterwards did Bourne die. - A. I cannot say; I was with him the whole night; as soon as day light came he was taken down to the doctor of the ship.

Q. When you saw him last he was a dying. - A. Yes.

Court. You did not see him after day light. - A. No.

Q. When you saw Depardo in the ring first was the knife drawn. - A. Yes; he was attempting to stab some of them.

Q. Did you see any of them doing any thing. - A. Yes, all of them had their sticks up trying to strike them.

[The prisoner was allowed by the Court an interpreter

who was directed to repeat the whole of the evidence to the prisoner.]

Interpreter. The prisoner says he was on board as a prisoner of war: he says he was told by the officers it was necessary they should navigate merchant's ships, and he agreed to do it; he does not remember seeing the witness at the time of the affray.

Court. Ask the prisoner whether he would put any questions to the witness Burford. - A. He begs the witness may be asked whether the crew did not wound the prisoner in three places in the head.

Q. to Burford. Do you know whether the people wounded him in three parts of the head, or any where. A. No.

Q. Do you know that he was wounded. - A. Very likely he might.

Q. The prisoner might be wounded, but you did not see it. - A. No.

Int. The prisoner wishes to ask whether the deceased did not sally forth from the street where he was with a stick to strike him. - A. Burford. He had no stick, he had no intention of striking him.

Int. The prisoner asks the witness whether after the deceased fell the other sailors about him struck him. - A. Burford. I believe they did.

Court. Did you see them strike the prisoner with their sticks before he struck the deceased. - A. I did not see them strike him.

Q. You said they had their sticks as if they were attempting to strike him - A. Yes, I think they were engaged in an affray, they attempted to strike him with their sticks, and he was menacing to keep them off.

GEORGE WOLTMAN . - Mr. Garrow. Were you one of the crew of the Alnwick Castle. - A. Yes

Q. Were you present at the time Bourne was stabbed. A. Yes.

Q. Did you see any knife thrown away by any one. A. Yes, by the prisoner, and it went over the rails; I afterwards picked it up. I delivered it to Mr. Hall the officer.

HENRY HALL . Q. You were the court officer of the ship Alnwick Castle. - A. I was.

Q. Have you any knife that was delivered to you. - Yes. (producing it.)

Q. By whom was that delivered to you - A. By Woltman; I have had it in my possession ever since. I am sure it is the same that was delivered to me.

Q. to Woltman. Was it such a knife that you picked up. - A. That is the knife.

Mr. Att. General to Hall. Were you present when Depardo entered on board. - A. Yes, he was a prisoner of war on board the Blenheim; he came aboard of us from the Blenheim as a volunteer.

Q. Were you present when he received the bounty. A. Yes.

Q. He was not serving as a prisoner of war. - A. Yes; he had entered as one of our crew.

Court. And received the bounty. - A. Yes.

Q. You have all the letters of marque, do not you. - A. Yes; we had one.

Q. Do you know whether he had received any of his pay. - A. Yes, he did receive part of his pay the day before this unfortunate affair happened.

Q. How much was his pay. - A. They had the bounty, and I believe two months advance.

Q. How much a month. - A. Forty-five shillings a-month.

Q. How far was it up the river. - A. About eighty miles.

Q. What width is the river. - A. About the third of a mile across where the ship lay.

Q. Within the tide. - A. Yes.

JOSEPH STAREY. - Mr. Garrow. Were you the surgeon of the Alnwick Castle. - A. Yes.

Q. Was this person, Bourne, under your care after he was wounded. - A. Yes. I found about six inches of the intestines hanging out of his belly; this was about one or two o'clock of the morning; he lived till between five and six o'clock of the same evening, then he died.

Q. Was that wound the occasion of his death. - A. It was; I opened his body; he died on board the Alnwick Castle.

Prisoner's Defence (by the interpreter). My lord - he says, my lord, that the declaration of some of the witnesses, that he wounded the man, is false - that the man came towards him in a fit of drunkenness, that he had a stick in his hand, with which he hit him on his head and cut his head; there is a scar now upon his head; that after hitting him over the head with the stick, the deceased drew back, and upon the deceased withdrawing himself, another sailor of the party came up, and also struck him with a stick behind his head; he fell down with the blow that he received; that when he recovered himself and got upon his legs, he perceived that his knife had fallen on the ground; he picked the knife up; they did not give him time to put the knife in the scabbard, which was by his side; it not being a clasp knife he wore it in the scabbard by his side. As soon as he was upon his feet, he having the knife in his hand, the deceased and another came upon him with sticks; that he being in such a ground, he could not retreat, being close up to the wall of the factory. He endeavoured to defend himself with his left arm up, and received the blows from the stick with his left arm; that the deceased coming upon him to make a blow, he missed his aim, his foot slipped, he fell forward upon him, the prisoner, or against him. In consequence of his having the knife projected the deceased fell upon the knife, or against it. He says that had it been his inclination of killing any body, he had the opportunity of killing three or four that pressed upon him; that he wished to avoid any quarrel with them; that before this he hid himself behind a door of the factory to avoid being in the affray, that it was about half past nine at night; that after he had hid himself behind the door, a seaman of the party dragged him out by the hair of his head. At that time he wore long hair. The sailors then said, come, let us kill him, there will be one less of the enemy; that they said to each other, or that the men said, there is no crime in it, we shall not be hurt in killing him, there was no justice for him. They then dragged him forward; he was then against the wall, where the deceased met with the wound. There were four witnesses, which he wished to be called, but the captain did not notice it, he says, as I know well. At the first examination there was one attended, his name was Tores.

Court. Is he here. - A. I believe not. (The witness called, but did not appear.)

MR. READ. - Mr. Att. General. You examined Tores the prisoner's witness. - A. I did. I took Tores' examination; it was read over to the prisoner; there was nothing in his examination favourable to the prisoner,

and the prisoner, when he heard the examination, thought it was not material that he should be kept; he agreed for him to be set at liberty. Tores said he stood at a distance all the while.

Int. He says that another evidence would be material to him, John Baptisto, but the captain did not take the measure to bring him forward.

Mr. Read. There was every means used for to find Baptisto; the men were hunting after him for a fortnight; he could not be found.

Int. The prisoner says that must be the fault of the captain.

Court to Burford. The prisoner has said that he was defending himself against a stick with which the deceased was striking him; he says the deceased slipped or fell forward, and fell upon the knife - is that true. - A. No, my lord.

Q. Is it true that the deceased ever gave him any blows. - A. No, not while I was there, and the deceased was with me.

Q. Was he drunk. - A. No.

Int. The prisoner begs leave to say, that it will not appear probable, that a man would come out in such a situation in his shirt, without he had been in liquor.

Burford. The deceased was in bed, he was called up by some of them to quell the Spaniards.

Jury. Some of the jury wish to know whether the prisoner understood the English language.

Court to Burford. Do you know whether the prisoner understood the English, language. - A. I believe he does; Mr. Stary can inform you better,

Mr. Stary. He has spoken English as a sort of interpreter, for men who were sick under my care.

COURT. Gentlemen, the prisoner stands indicted before you, upon an indictment found under a special commission, which is issued by his Majesty, under certain powers granted in the 33rd Hen. VIII. which enables courts of judicature in this kingdom, to try persons for offences of this description, that are committed beyond the seas: namely, for murder; and by a subsequent statute, the 43rd, of George the Third, the former statute was extended to manslaughter. - This indictment is for manslaughter only; and the only question for your consideration will be, whether the facts that are disclosed in evidence on the part of the prosecution, whether they amount to manslaughter, or whether it amounts to killing in his own defence. If you should be of opinion that it is killing in a common affray, in the heat of blood, you will find him guilty of manslaughter. The bill not being framed for murder, it is no question for your consideration: - [The court went through the evidence of Burford, and the other witnesses most minutely.] - Gentlemen, he, the prisoner, according to Burford's evidence, after he had given the second thrust to the deceased, the deceased fell from the prisoner, and said he was stabbed; he, the prisoner, threw his knife away.

Gentlemen, it should seem that was the moment he should have kept his knife, unless he was conscious that he had in the heat of blood, done a great injury to another; which under the provacation of the moment he had been subject to, and fearful that on some other provacation it might be done again. He threw the knife away; that shews it was done in great heat of blood, and not with self defence; because then it would have been most natural for him to have heid the knife. The question will be, whether you believe the evidence given by Burford, or whether you believe the account of the prisoner; whether you can come to think the account the prisoner gives sufficient to explain the transaction, so as to give it a more lenient construction; with respect to what the prisoner said in his defence, I called Burford again, and Burford says it is not true that the deceased slipped, and fell forward against the prisoner, and fell upon the knife; nor is it true that the deceased gave the prisoner any blows in his presence but that the deceased met with his death from the knife that was in the prisoner's hand, under the circumstances already stated by him; therefore the only question is, whether it was done in the heat of blood, or whether it was a killing on his own defence: Therefore I have detailed to you what the prisoner said in his own defence, though not on oath, because, in many cases, what the prisoner says, though not on oath, gives it another colour. You are to examine the evidence with the aid of his own defence, and whether it appears credible to you, the story that he tells of the man falling up- upon the knife; I think that is not very probable, and their dragging him out by the hair of his head; there would be no harm in killing him; there would be one enemy the less; you will judge whether that is probable: If it appears to you to be committed in the heat of blood, in mutual conflict of all the parties, it will amount to manslaughter; but if it appears to you, he is surrounded by a multitude, and in danger of his life, that he drew out a weapon against the threatened violence, and in defence of himself, death ensued that would be self defence, he would then be entitled to an acquittal; still more entitled to an acquittal if the deceased fell upon the knife.


Judgment respited .

Tried by a jury half English and half foreigners, before Lord Ellenborough.

[This Commission stands adjourned to Wednesday the 2nd of December next].

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