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<p>480.
<persName id="t17980912-15-defend178" type="defendantName"> JOHN SYMONDS, otherwise called the
<rs id="t17980912-15-alias-5" type="alias">
<join result="nameAlias" targOrder="Y" targets="t17980912-15-defend178 t17980912-15-alias-5"/>OLD RUFFIAN</rs>
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<interp inst="t17980912-15-defend178" type="given" value="JOHN"/>
<interp inst="t17980912-15-defend178" type="gender" value="male"/> </persName> (not in custody),
<persName id="t17980912-15-defend180" type="defendantName"> JOHN BARTHOLOMEW
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<interp inst="t17980912-15-defend180" type="gender" value="male"/> </persName> , and
<persName id="t17980912-15-defend182" type="defendantName"> RICHARD KNIGHT
<interp inst="t17980912-15-defend182" type="surname" value="KNIGHT"/>
<interp inst="t17980912-15-defend182" type="given" value="RICHARD"/>
<interp inst="t17980912-15-defend182" type="gender" value="male"/> </persName> , were indicted for the
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<interp inst="t17980912-15-off80" type="offenceCategory" value="kill"/>
<interp inst="t17980912-15-off80" type="offenceSubcategory" value="murder"/> wilful murder of
<persName id="t17980912-15-victim184" type="victimName"> James Haves
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<rs id="t17980912-15-cd81" type="crimeDate">13th of January</rs>
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<p>They also stood charged on the Coroner's Inquisition with the like murder.(The indictment was stated by Mr. Watson, and the case opened by Mr. Const.)</p>
<p>
<persName id="t17980912-15-person185"> ANN MARSHALL
<interp inst="t17980912-15-person185" type="surname" value="MARSHALL"/>
<interp inst="t17980912-15-person185" type="given" value="ANN"/>
<interp inst="t17980912-15-person185" type="gender" value="female"/> </persName> sworn. - Examined by Mr. Watson. I keep
<placeName id="t17980912-15-crimeloc82">the Thistle and Crown public-house, at Charing-cross</placeName>
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<p>Q. Do you recollect the prisoners at the bar? - A. Yes. On the 13th of January, about six o'clock in the evening, they came into my house, with Symonds, and one sharp.</p>
<p>Q. Be so good as state to my Lord, and the Jury, what passed, when they came into your house? - A. I was at tea in the bar with another young woman; Bartholomew came into the bar, and asked if he could sit down there; I said, they might; and they all three sat down in the bar, and a lifeguards-man, of the name of Sharp, sat down with them; they then called for some porter, and some gin and water, and some bread and cheese; they had it; they sat there for some time, till very near nine o'clock in the evening; I then had occasion to go up the yard, to light a person out, with a candle;
<xptr type="pageFacsimile" doc="179809120021"/>when I came down the yard, the candle went out, Wilson, the soldier, that was quartered at our house, was standing making water before me in an indecent manner, I did not observe it myself, Symonds was behind me, I did not know it; Symonds said, it was a very indecent manner for him to stand in; Wilson and Symonds then went into the parlour, and wanted to fight; the two prisoners were then in the bar; I went into the parlour, and said, for God's sake, do not fight there; I then fell into fits, being frightened, and they took me into the bar; it was as much as five or six people could do to hold me; after that, Wilson and Symonds went out of the house to drink together somewhere; they came in again, and Symonds came into the bar to his other company, they had been gone about ten minutes or a quarter of an hour; then they sat down drinking again in the bar; the quarrel then seemed all made up entirely, and they all three called Wilson into the bar, several times, to drink with them; he went in to drink with them, and then went into the kitchen to his comrade, Wakefield, who was quartered with him, and this old
<rs id="t17980912-15-viclabel83" type="occupation">sailor</rs>
<join result="persNameOccupation" targOrder="Y" targets="t17980912-15-victim184 t17980912-15-viclabel83"/>, Hayes, was in the kitchen; they all three sat drinking till half past eleven o'clock; I then said, it was time to go to bed; Symonds then went into the kitchen, shook hands with Wilson, and said, all is made up, is not it; and Wilson said, yes, it was; Bartholomew was then sitting in the chair in the kitchen, he then jumped up and said to Symonds, who was with my two soldiers, chiac, you take one, and I will take the other.</p>
<p>Q. Was this exactly at the time that Wilson and Symonds were shaking hands, and said, it was all made up? - A. Yes.</p>
<p>Q. Where was Knight, the other prisoner, at that time? - A. In the bar. I then said, to Wilson and Wakefield, there has been a piece of work in the beginning of the evening, now you had better go to bed; Knight then jumped up, and held the kitchen-door; the kitchen-door, and the bar-door are near together, and through that door was a way for them to go up to bed.</p>
<p>Court. Q. Wakefield and Wilson had not then moved to the door? - A. No. I said, to Knight, why should you hold the door, to prevent them from going to bed; then Bartholomew knocked down Wakefield, and Symonds knocked down Wilson, the other soldier; and the sailor, the deceased
<persName id="t17980912-15-person186"> James Hayes
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<interp inst="t17980912-15-person186" type="given" value="James"/>
<interp inst="t17980912-15-person186" type="gender" value="male"/> </persName> , was coming across the kitchen to the bar, I suppose, to get out of the way of the skirmish, and he knocked him down; he had lodged in my house four months; he had been sitting in the kitchen, at the further end of the dresser.</p>
<p>Court. Q. Had he interfered at all in the quarrel? - A. No, he had not said a word; Symonds hit him with his double fist in the stomach, and knocked him back against the wooden knob of the door, and hit him and kicked him about several times after he was down.</p>
<p>Q. At that time, had the deceased said any thing, or attempted to do any thing towards this man? - A. No, not at all.</p>
<p>Q. During the whole of this transaction, where was Knight situated? - A. He continued keeping the door all the time; Wilson and Wakefield bled a great deal.</p>
<p>Q. Were they upon the ground at the time that Symonds struck the sailor? - A. Yes, they were in liquor, and the blow had stupified them so, that they were not able to get up.</p>
<p>Q. About what age was the deceased? - A. Near 60, I suppose.</p>
<p>Q. Was he or not of a quiet, peaceable disposition? - A. Very much so, indeed.</p>
<p>Q. The deceased was knocked down and trampled upon - was that what became of him? - A. All the three men ran away, the two prisoners at the bar, and Symonds, without paying the reckoning, and the two soldiers and the deceased got up soon after.</p>
<p>Q. Do you know how long the deceased lived after? - A. Yes; they all three went to bed; he got up on the Wednesday morning and went about, but complained that he was very poorly, and the next day the same, and on the Friday he went for me to my brewer's, at Pimlico.</p>
<p>Q. Did he complaint of any part in particular? - A. I did not hear him complain of any part in particular; when he came back from Pimlico, I asked him whether he would have a glass of gin or a pint of porter; I had left him some Irish stew for his dinner, and he chose a pint of porter; after that he took a trunk to Clare-market; he came back about nine in the evening, and had a pint of porter, and while he was having his porter, he said, he was very sick; I said, Hayes, do not be nasty, to spit the blood about the floor, you had better go up stairs to bed; I sent somebody up stairs with him, and they came down, and said he was very bad indeed, and I sent for a surgeon to him; the surgeon told me I must take particular care of him, and keep him quiet; I left people in the room with him; about three o'clock on the Saturday morning he was very bad indeed, bringing up blood; I then sent for the surgeon again, and the surgeon said it was of no use to send any thing for him, for he was a dying man, and he died about half past six o'clock that morning; he was very sensible, called me by my name, and told me how hard he died.</p>
<p>Cross-examined by Mr. Knowlys. Q. You had known Bartholomew before some time? - A. Yes.</p>
<p>Q. He had done business at your house as a
<rs id="t17980912-15-deflabel84" type="occupation">recruiting serjeant</rs>
<join result="persNameOccupation" targOrder="Y" targets="t17980912-15-defend180 t17980912-15-deflabel84"/>? - A.Sometimes he did.</p>
<p>
<xptr type="pageFacsimile" doc="179809120022"/>Q. He had done business there that day? - A.He came to settle with captain steele, I believe.</p>
<p>Q. And when he came, he came in company with these two men, Symonds and Knight? - A. Yes.</p>
<p>Q. You say every thing went on very well till Wilson had been guilty of this indecency towards you? - A. Yes.</p>
<p>Q. You were a good deal shocked, I believe, at the indecency of Wilson's conduct, in the presence of a decent woman? - A. Yes.</p>
<p>Q. And upon that Symonds was very angry, and that began the quarrel? - A. Yes; Bartholomew had often used my house, but I never saw any thing amiss of him; Knight and Symonds I had never seen before, but one evening I saw Knight when I buried my husband, about a month before.</p>
<p>Q. Wakefield was the comrade of Wilson? - A. Yes.</p>
<p>Q. Therefore they sat together as friends, and a party of their own? - A. Yes, with Hayes, in the kitchen.</p>
<p>Q. The soldiers were both in soldier's clothes? - A. Yes.</p>
<p>Q. Hayes was very quiet, and took no part at all in the business? - A.None.</p>
<p>Q. He was a sailor? - A. Yes.</p>
<p>Q. At eleven o'clock, when they were going, the expression of Bartholomew to Symonds was, you take one, I will take the other? - A. Yes.</p>
<p>Q. You say Symonds attacked one soldier, and Bartholomew fought the other soldier? - A. Yes; Knight did not strike any of them, he was holding the door.</p>
<p>Q. Therefore the two persons selected as combatants were the two soldiers, Symonds taking one, and
<persName id="t17980912-15-person187"> Bartholomew
<interp inst="t17980912-15-person187" type="given" value="Bartholomew"/>
<interp inst="t17980912-15-person187" type="gender" value="male"/> </persName> the other? - A. Yes.</p>
<p>Q. You say now, and have always said, that with respect to any ill usage given by Symonds to poor Hayes, Bartholomew took no part? - A. No, he only fought with Wakefield.</p>
<p>Q. At the time Symonds knocked down poor Hayes, he took no part whatever in it? - A. No.</p>
<p>Q. I believe captain Steele called to know if Bartholomew was there to settle the account? - A. No, not to my knowledge.</p>
<p>Court. Q. How is the bar and the kitchen situated? - A. The kitchen and the bar are together.</p>
<p>Court. Q. Must Hayes necessarily pass that door to go to the bar? - A. Yes; he had just got to the door when he was knocked down.</p>
<p>Q. Then probably if the door had not been shut, he might have got out that way? - A.Certainly he could.</p>
<p>Q. And of course that would have been his shortest way to get out of this affray? - A. Certainly it would.</p>
<p>Q. However, from the dresser he was coming towards the door, and towards the bar? - A. Yes.</p>
<p>
<persName id="t17980912-15-person188"> HANNAH TAYLOR
<interp inst="t17980912-15-person188" type="surname" value="TAYLOR"/>
<interp inst="t17980912-15-person188" type="given" value="HANNAH"/>
<interp inst="t17980912-15-person188" type="gender" value="female"/> </persName> sworn. - Examined by Mr. Const. I was at that time an assistant to Mrs. Marshall.</p>
<p>Q. Do you recollect the two prisoners, with Symonds, coming to your house? - A. Yes, they came in about six o'clock in the evening, and they staid drinking till about nine in the evening very comfortably; Mrs. Marshall went up to light somebody out, and as she came back the candle blew out; one of the soldiers was standing very indecently before Mrs. Marshall; Symonds was behind her, and talked to him very much for standing in that manner; many words ensued, he was going to fight Wilson; Mrs. Marshall was very much frightened, and went into fits, and when the Russian, Symonds, saw that, he was very sorry, and made it up with Wilson, and they came in and drank together, and were very comfortable; it was all made up till twelve o'clock, when the two soldiers were going to get up to go to bed; Mrs. Marshall and I wanted them to go to bed, but Wilson was very much in liquor, and he stood equivocating and talking with Symonds, but not quarrelling; Symonds said to him, will you go to bed, or what do you want, or will you fight? no, says Wilson, I do not want to fight; Symonds laid hold of his hand when he stood at the bar door, and while he had hold of his hand, he said, d-you, what will you have now, I will fight you now; Bartholomew, the prisoner at the bar, then got up, went forward, and struck Wakefield, one of the soldiers, two or three times.</p>
<p>Q. Before he struck him, did he say any thing? - A. He said some phrase or word which I did not understand, like chiac; then Symonds came out of the bar and struck Wilson.</p>
<p>Q. What was the consequence of these blows? - A. Wilson and Wakefield both fell on the ground; I did not know that the blows being so rapid was the reason, but they were so in liquor, that they were not able to assist themselves.</p>
<p>Q. Did you see Knight do any thing at this time? - A. He did not strike any body; he shut to the door, but with what intention I do not know.</p>
<p>Q. These men then were lying on the ground? - A. Yes; then Hayes was coming across the kitchen to get into the bar, for fear, I suppose, that he should get hurt, and as he came across the kitchen, he unfortunately received a blow or a push, and fell down.</p>
<p>Q. In the course of the night, had you any conversation with Knight? - A. Not particular, several words passed; I heard him say, that in the course of the evening there might be a fight, or he
<xptr type="pageFacsimile" doc="179809120023"/>dare say there would be a fight; I think he said, he dare say there would be a fight.</p>
<p>Q. Where was he when he said that? - A. In the bar.</p>
<p>Court. Q. How long before the blows were given was it that he said that? - A. In the evening, after the quarrel was made up, while they were friends, and drinking together.</p>
<p>Q. Did Hayes complain much? - A. He laid a bed part of the next day, and when he got up, I asked him how he was, and he rather complained of his head; on the Thursday and Friday he was very well; he went to Pimlico on Friday, and came back and eat a very hearty dinner, but about nine o'clock in the evening, and from that time till past six in the morning, when he died, he scarce ever ceased vomiting.</p>
<p>Cross-examined by Mr. Gurney. Q. Had Wakefield and Wilson been quarrelsome in the former part of the evening? - A. No.</p>
<p>Q. The only provocation came from Wilson's indecent behaviour to Mrs. Marshall? - A. Yes.</p>
<p>Q. They had never spoke at all to Hayes? - A. No.</p>
<p>Q. And all the fighting began with Wakefield, and Wilson, and Bartholomew, and Symonds? - A. Yes.</p>
<p>Q. Hayes was no party in the fighting? - A. No.</p>
<p>Q. On Thursday and Friday he was very well? - A. Yes.</p>
<p>
<persName id="t17980912-15-person189"> QUINTON WILSON
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<interp inst="t17980912-15-person189" type="gender" value="male"/> </persName> sworn. I belong to the Coldstream regiment of guards; I was quartered at the Thistle and Crown, Charing-cross.</p>
<p>Q. Do you recollect the two prisoners at the bar coming to the Thistle and Crown on the 30th? - A. Yes.</p>
<p>Q. What time in the evening did you first see them? - A. I cannot recollect.</p>
<p>Q. Do you recollect either of them speaking to you when you were in the yard? - A.No, neither of the prisoners, Symonds did; he chastised me, as he said, for making water in an improper manner, and wanted to quarrel with me.</p>
<p>Q. Did he quarrel with you? - A. No, there was no dispute at that time, it was all settled till such time as I was going to bed.</p>
<p>Q. What passed at the time you were going to bed? - A. He came out of the bar, and asked me to drink.</p>
<p>Q. Who was with you in the kitchen? - A. My comrade, Wakefield.</p>
<p>Q. You knew the deceased, Hayes? - A. Yes, he was in the kitchen, at the further end of the dresser; I told Symonds I did not wish to drink any more; Symonds said, he hoped there was no animosity; I said, no, I never had any animosity to any man; then he asked me to shake hands, and bid me good night, and then he knocked me down, and after that I never saw what passed; when I came to myself, they were all gone.</p>
<p>Q. Just before Symonds knocked you down, did you see or hear any thing? - A. No.</p>
<p>Q. Did you hear nothing said? - A. No.</p>
<p>Q. Did you see the situation of Knight? - A. No.</p>
<p>- WAKEFIELD sworn. I belong to the Coldstream regiment of guards; I was billetted at the Thistle and Crown on the 30th of January; on the evening of that day the two prisoners and the Russian came in, and were drinking the greatest part of the afternoon; I do not recollect what time they came there.</p>
<p>Q. Do you recollect Wilson going out into the yard? - A. I heard some dispute between Wilson and the Russian; they were drinking in the bar, and my comrade, Wilson, drank along with them some considerable time, and they had a dispute several times over and over, and at last they made it up together; then Mrs. Marshall wanted us to go to bed; we had a candle in our hands to go to bed, and Wilson and Symonds were shaking hands together, and seeing there was no animosity between either one or the other, and then he knocked Wilson down, and Bartholomew knocked me down.</p>
<p>Q. Did Symonds knock him down immediately after they had declared there was no animosity? - A. They were hand in hand at the time, shaking hands.</p>
<p>Q. Did you hear any thing said just before that? - A.No.</p>
<p>Q. Did you observe the situation of Knight just at that time? - A. No.</p>
<p>Q. After you were knocked down, were you able to discern what passed? - A. No, I bled very much, and was senseless.</p>
<p>Q. Did you know before this where Hayes was in the kitchen? - A. He was sitting at the time I saw him in a chair by the fire.</p>
<p>Q. Did you see him rise to pass along the kitchen? - A. No.</p>
<p>Cross-examined by Mr. Knowlys. Q. Bartholomew knocked you down with a blow of his fist? - A. Yes.</p>
<p>Q. Not with a stick? - A. No.</p>
<p>Q. A fair boxing blow? - A. I cannot say as to that.</p>
<p>
<persName id="t17980912-15-person190"> RICHARD JACKSON
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<interp inst="t17980912-15-person190" type="given" value="RICHARD"/>
<interp inst="t17980912-15-person190" type="gender" value="male"/> </persName> sworn. - Examined by Mr. Const. I am a surgeon: I was called in on the Friday, about ten o'clock in the evening, to see
<persName id="t17980912-15-person191"> James Hayes
<interp inst="t17980912-15-person191" type="surname" value="Hayes"/>
<interp inst="t17980912-15-person191" type="given" value="James"/>
<interp inst="t17980912-15-person191" type="gender" value="male"/> </persName> , who, they said, was dying from a vomiting of blood; I found he had vomited a very large quantity, from which he appeared very low and saint; Mrs. Marshall informed me he had had a blow in the stomach; he said, he had been very
<xptr type="pageFacsimile" doc="179809120024"/>much abused, but did not say by whom, but put his hand up to his left eye; after desiring him to be kept quiet, I went home to prepare some medicines for him; about three I was called to him again, and found he had vomited a great quantity more of blood; I went to him, and found he was a dying man; I was present afterwards at the opening of the body; I examined it, and found a discoloration upon one of the smaller intestines, and another upon one of the large ones; the liver was of very extraordinary appearance, and the right kidney was much larger than the left, and of a soft, pulpy seel, with a perforation in it, and in the abdomen, I suppose, pretty near a pint of fluid, which indicated that the man, had he lived, might have become dropsical; we opened the thorax, and found the lungs adhering very strongly to the adjacent parts; we opened the stomach, and found it inflamed; we found also about three or four ounces of blood some what coagulated; we were at no loss of judge from whence that proceeded.</p>
<p>Q. From whence do you suppose that proceeded? A. From the stomach.</p>
<p>Q. Were you able to trace the cause of his death to any particular injury that he had received? - A. I understood he had received his blow three days before; the stomach had been in a very unhealthy state before that, and therefore not able to bear the blow.</p>
<p>Court. Q. Do you think that such a blow was the cause of death, the stomach not being in good order? - A.Certainly; it is very clear that the stomach could not have received such a blow, without producing very great mischief.</p>
<p>Q. Do you think the hemorrhage proceeded from the blow? - A. I cannot pretend positively to say that; that is more than I can say; the external appearances were, a confusion upon the left eye, one upon the right ear, and a considerable one on the side.</p>
<p>Court. Q. From the appearance of the body, was there any thing that should lead you to suppose the man would have died in three days, if he had not received that blow? - A. That is impossible for me to tell.</p>
<p>Court. Q. What do you think would be the effect of such a blow upon an unhealthy stomach? - A.It might have caused death or not.</p>
<p>Court. Can you say that the hemorrhage proceeded from the blow? - A. I cannot.</p>
<p>Cross-examined by Mr. Gurney. Q. You say that the rupture of the blood vessel might or not proceed from a violent blow? - A. Yes.</p>
<p>Q. It might proceed from carrying a weight, or over much exercise? - A.It might</p>
<p>Q. There was not the least outward appearance of a blow upon the part? - A. Not the least.</p>
<p>Q. Therefore you cannot decide with certainty that the rupture of the blood vessel was in consequence of the blow that he had received? - A. There is no doubt but a blow may produce it.</p>
<p>Court. Q. A. violent blow upon a diseased stomach might produce death? - A. Yes.</p>
<p>Court Q. But whether it is so in any particular instance, it is very difficult for you to say? - A. It is.</p>
<p>
<persName id="t17980912-15-person192"> RICHARD SIMMONDS
<interp inst="t17980912-15-person192" type="surname" value="SIMMONDS"/>
<interp inst="t17980912-15-person192" type="given" value="RICHARD"/>
<interp inst="t17980912-15-person192" type="gender" value="male"/> </persName> sworn. - Examined by Mr. Const. I was called in, on the 5th of February last, to examine the body.</p>
<p>Q. Be so good as state to the Court what was the condition of the corpse? - A. There were several bruises in different part of it; there was one on the right side of his neck, his left eye was bruised, and his loins were bruised, I did not see any other external marks; I proceeded to open the body immediately; I found that the small intestines were discoloured, as though they had received some violence; there was likewise discoloration of the large intestine; I then examined the different vessels, and in the stomach I found a very considerable quantity of blood; this man's viscera, independent of this, was in a very diseased state; he had a considerable quantity of water in his belly, as though a dropsy had begun to take place; but I have no doubt that he died from the hemorrhage in the stomach; I found also, that the right kidney was larger than the left.</p>
<p>Q. In your judgement, from what caused did that hemorrhage proceed? - A. I could not have conceived any cause whatever, unless I had been told that he had received a blow.</p>
<p>Court. Q. Will a violent blow on the stomach produce a hemorrhage? - A. Undoubtedly.</p>
<p>Q. What was the cause of the kidneys being one larger than the other? - A. That I take not to have originated in a recent cause, but in an abscess, I should suppose, of long date.</p>
<p>Cross-examiend by Mr. Knowlys. Q. No doubt a man may die of a rupture of a vessel, without having received a blow? - A.Undoubtedly.</p>
<p>Q. Did not the extremely diseased state of that body exhibit an appearance very liable to ruptured vessels? - A. yes.</p>
<p>Q. Before the Coroner, did you at all say, that you absolutely affixed it to any cause arising from the blow? - A. Yes, surely I did.</p>
<p>Q. Did you not say, it arose from an inflammation? - A. Yes, occasioned by the blow.</p>
<p>Q. Supposing he had carried a heavy weight, do you think that might not have produced a rupture of the vessel? - A. Certainly; I think it was a very improper think for him in the diseased state of his viscera, it might have accelerated the circulation so much, as to have brought on an hemorrhage.</p>
<p>
<xptr type="pageFacsimile" doc="179809120025"/>Q. But do you not believe; that carrying a heavy weight, on the Friday evening, might have caused that hemorrhage? - A. Yes.</p>
<p>Q. For instance: the carrying a heavy weight from Charing-cross to Clare-market would increase the danger? - A.Certainly.</p>
<p>Q. And more particularly if this same unhealthy man had walked from Charing-cross to Pimlico, and back? - A.Certainly; that would add to the liability of a ruptured vessel.</p>
<p>Bartholomew's defence. My Lord, we are totally innocent of the charge; the deceased I never saw in the course of the evening at all; and when he was struck, I never saw him struck at all.</p>
<p>Knight's defence. I went in to ask for Bartholomew, and they said, he was up stairs, with his officer, and I waited for him; Mrs. Marshall went to light the officer out, and Wilson was standing in a very indecent way, and Symonds and he stripped to fight; I fetched Bartholomew down to prevent them, and then they made it up; I said to Miss Taylor, in the evening, I would lay a wager they would fight yet, before they went to bed, for they seemed rather quarrelsome all the evening; and then, at night, when they did fight, I would not let Mrs. Marshall go in among them, because she had been in fits at only hearing them talk of fighting, and as they were going to fight I told her she had better let them fight it out.</p>
<p>Mr. Knowlys. My Lord, I have an objection to take, which, perhaps, I ought to have taken before.</p>
<p>My Lord, I take it, that wherever death is charged, as happening in the prosecution of an illegal act, to which the parties then before the Court are alledged to have been present, aiding and abetting, it must appear most strictly in evidence, that it arose from the very individual act in which those persons charged as aiders and abetters were then engaged, and from no other act whatever; though it might happen at the same time, it might not be the immediate and necessary consequence of that act in which they were engaged.</p>
<p>My Lord. There are certainly a number of cases to fortify that position, the principle has been adopted, and has never been disputed; I apply the principle this way. It stands, prima facie, in evidence, that these two parties did agree, at the house of Mrs. Marshall, to engage with two soldiers, one of them saying, you attack one, and I will attack the other; and that, in consequence of that, each of them took his man, and did attack him; that is certainly an illegal purpose, in which these two men, Bartholomew and Knight, were engaged; one of them actively, and the other being present and approving of it, while the other man, Symonds, was engaged in his part of that illegal act; but I submit to your Lordship, taking it upon this evidence, that for nothing corollary to that act are they answerable. Now, if the man with whom Symonds was engaged had died by the bruises which Symonds inflicted upon him, I mean Wilson, I cannot say that Bartholomew would not have been answerable for his share in the homicide of Wilson. I do not mean to put that - I think he would. But, my Lord, I take it, that the attack upon Hayes was perfectly unknown both to Bartholomew and Knight, it was a thing not in their contemplation at the time that the violation of the law first took place, as I think appears most clearly upon the evidence; for after Bartholomew has mastered his man, Wakefield, he desists, and does not take up the other man to whom Symonds was opposed; he takes no share in Symonds's part as against Wilson, but confines himself to his man, each of them selecting his antagonist, and each beating his antagonist; there Bartholomew stops, and goes no further. Unfortunately, this man Symonds, whose bad blood was roused by his success against Wilson, chuses to transfer the purpose with which they originally set out, namely, as a combat as between Wilson and him and as between Bartholomew and Wakefield, he chuses to transfer his purpose to another person, perfectly unknown, as I contend, upon this evidence, to Bartholomew and to Knight; - Hayes is not present as taking a share in the combat, either to part them, or at all interfering with Symonds, he having mastered Wilson, and knocked him down, sees the other man coming across the kitchen, his ill temper is roused, and he falls upon that other man. My Lord, for argument sake, I will suppose for a moment, that he occasioned the death of Hayes; then I put it, that this is not a general agreement to break the peace, but an agreement between two men to fight other two men; and that, for all the consequence that arose to those two men, I admit all the three parties are answerable, but no moral consequences ensue. Then, I say, there is nothing tending to shew a general purpose to break the peace, but merely upon Wakefield and Wilson; why then, my Lord, I take it, that this position has been fortified by cases, and by strong cases. The case that I shall first quote to your Lordship, is to be found in Keyling's Reports, the case of the King's, Plummer; a case in which a special verdict was found; and it was argued before all the Judges; - that special verdict stated, that
<persName id="t17980912-15-person193"> Joseph Beverton
<interp inst="t17980912-15-person193" type="surname" value="Beverton"/>
<interp inst="t17980912-15-person193" type="given" value="Joseph"/>
<interp inst="t17980912-15-person193" type="gender" value="male"/> </persName> was duly appointed to seize a certain description of wool, and that
<persName id="t17980912-15-person194"> Benjamin Plummer
<interp inst="t17980912-15-person194" type="surname" value="Plummer"/>
<interp inst="t17980912-15-person194" type="given" value="Benjamin"/>
<interp inst="t17980912-15-person194" type="gender" value="male"/> </persName> ,
<persName id="t17980912-15-person195"> John Harding
<interp inst="t17980912-15-person195" type="surname" value="Harding"/>
<interp inst="t17980912-15-person195" type="given" value="John"/>
<interp inst="t17980912-15-person195" type="gender" value="male"/> </persName> , and others, to the number of eight, assembled to run wool; and that while they were so assembled, in pursuance of an illegal purpose, some officers of his Majesty appeared with intent to seize this wool; upon which, one of the eight who were engaged in this transaction of smuggling, fired his susee, in which one of his comrades was killed; and the Judges, in that case, said, that he who fired the gun, and he alone, should answer for it; if the special verdict had found that he fired the gun at the King's officers, most unquestionably all the eight would have been guilty of murder, though they murdered a man they did not intend to murder; because their purpose certainly was against those officers, whom they had had no legal power to resist; but as that is not found, says the Court, we can only take the facts as they are found; and upon those facts, it does not appear, that although these eight persons were engaged in a high illegal transaction, it does not appear that their joint illegal purpose at all touched that comrade of theirs who fell by the shot of the men who did fire, and therefore, though the man who fired the shot being engaged in an illegal purpose must answer for that purpose, yet those who were equally engaged in an illegal purpose
<xptr type="pageFacsimile" doc="179809120026"/>are not answerable for it. Therefore, I think, that case fortifies me upon facts, that this case cannot be distinguished from it in principle, and that, therefore I ought to have the benefit of it.</p>
<p>My Lord, there is another case, which, if possible, seems to come nearer still to the present: it is a case frequently cited, and the only printed note, I can find of it, is in Leach, page 6, it is entitled, the case of the King v. Hodgson and others. There the party, whose goods were liable to distrained by his landlord Hodgson, assembles number of other persons with him to take away those goods, which the landlord was about to distrain; a constable makes his appearance, and a fighting ensues; while the rest of the party were parting, one of them saw a child at the door, and with barbarity, which one cannot sufficiency condemn, he chuses to strike this child, of which blow the child died, and all the parties were charged, as aiding and abetting at the time the mortal blow was given. My Lord, this was, at first, a special verdict; but, to relieve the parties from the expence of arguing it, it was turned into a reserved case, which was argued before all the Judges; two of the judges differed from the rest, but the majority of the Judges ruled, that it was no offence whatever in those persons who were not engaged in the actual blow that caused the death of the child, upon this principle, that they were engaged in an illegal act, and they shall answer no further. The death might ensue in consequence of their opposition to this illegal purpose; it might ensue from their contest with the landlord in distraining the goods in consequence of the straggle which they chose to make illegally to get them into their possession; but it is too much to say that because one of them, and perhaps the only one who had a deliberate intention in his mind to give the blow,the rest, not at all expecting to mix that child in the fray, it is too much to say that they shall all answer for the death of that child, which never could have arisen as a necessary consequence of the dispute and contest in which they were engaged. So I say here, these two persons agree to fight two men, neither of them expecting to strike Hayes, with whom there had been no quarrel, and therefore could not have it in contemplation to strike any other person than those with whom they were engaged. Suppose, instead of this, Symonds had gone up to the landlady, and knocked her down, could we have supposed that that was in the contemplation of Bartholomew or Knight, they had no ill will against her - Suppose he had knocked the maid down, and she had died of the blow, could it be said that that was in the contemplation of the prisoners? It does appear to me from these cases, that as it was not a necessary consequence of the illegal act in which they were engaged, they ought not to answer for it. I certainly would not contend that Symonds is not answerable for the death of that man, but does seem to me from this evidence, that these two men could not be conscious of the part that Symonds chose to take.</p>
<p>My Lord, there is another part of this case which your Lordship may perhaps say is for the Jury only: it has been always necessarily required, that the death which is averred to have happened, shall be substantially proved to have happened from that, and from nothing else, surgeons have always been called to that point.</p>
<p>Lord Chief Baron. That is certainly a question of evidence only, and I shall lay before the Jury all the observations that seem to me upon it.</p>
<p>Mr. Gurney. My Lord, I will trouble your Lordship with a few words on the same side. My Lord, it appears upon this evidence, that all the quarrelling was between Symonds and Wilson; and in the subsequent part of the business, the only quarrel was between Symonds and Wilson on the one hand, and Bartholomew and Wakefield on the other; and it likewise appears upon the evidence, that the deceased, Hayes, not only took no part in the fray, not only was not the object of the malice of any of the parties there, but that he sat at a distant part of the kitchen, and at last, when he put himself in that situation, in which he received, as it is charged in the indictment, his mortal wound, he was endeavouring to escape into the bar for the purpose of avoiding any mischief that might fall upon him: it likewise appears, that the blow was given by Symonds, unassisted by any other person, unencouraged by any other person; that no word was uttered, and no gesture made use of by the other persons to encourage Symonds in giving that blow, Then it does seem to me to come strictly within the authority of those cases, in which it is determined, that in order to involve other persons in the guilt of him who gives the blow, that it shall be the intention of the whole.</p>
<p>My Lord, Mr. Justice Foster says - "I have, by way of caution, supposed that the murder was committed in prosecution of some unlawful purpose, some common design, in which the combining parties were united, and for the effecting where of they had assembled. For unless this shall appear, though the person giving the mortal blow may himself be guilty of murder, (he may possibly have conceived malice against the deceased, and taken the opportunity, which the confusion of a croud, or darkness of the night, afford to execute his private revenge), he, I say, my be guilty of murder; or if it were upon a sudden quarrel, of manslaughter, and yet the others who came together for a different purpose, will not be involved in his guilt."</p>
<p>I shall trouble your Lordship with only one other observation. It appears that the purpose for which Bartholomew came to that house, was not only a legal but a laudable purpose namely, to settle some business with his captain; that he used this house for the purpose of recruiting, in which service he was employed, and therefore he was acting in the ordinary concerns of his occupation in coming there. There does not appear to be the least tittle of evidence, that either of the prisoners conceived any malice to the deceased, and therefore it comes diretly within the authority of Mr. Justice Foster, that to involve all the persons in the guilt of murder, the intention of all must be precisely the same. It also comes within the authority of the case of the King. Hodgson, where though all the parties were engaged in an unlawful design, namely, a trespass, which is the lesser crime, they were not to be involved in the guilt of murder in consequence of one of their party having had wickedness to involve himself in the greater crime. There ten of the Judges, out of the twelve, held that they ought not to be involved in that crime.</p>
<p>Lord Chief Baron. I take it to be extremely clear and settled law now, that where several persons are engaged
<xptr type="pageFacsimile" doc="179809120027"/>in a design, it does unquestionably extend to such acts as arise out of, or are connected with the specific illegal act in which they were engaged: for instance, if a number of persons set out with a design to oppose the civil power, and one shall chuse to steal a horse, that is collateral, and he alone is answerable for it; it has no connection with the illegal act in question. But what is the evidence here? Very different indeed from that. In the first place, when Symonds was shaking hands, Bartholomew says, chiac, you take one, and I will take the other; that, I think, implicates him in the attack upon these two men most distinctly. The next question will be for the Jury to consider, and that is, that the moment this cant word is used, and the exhortation given, you take one, and I will take the other, Knight immediately jumps up and shuts that door which the woman had opened, the question will be quo animo he shut that door; if he shut that door with the animus of keeping these soldiers in, then he took a part distinctly in the assault upon them, and if that should be the opinion of the Jury, I apprehend there will be very little difficulty in the law, for he then becomes directly implicated in the illegal act, and, in my judgment, is answerable as much as they are, if a murder has been committed.</p>
<p>Mr. Justice Ashurst. I am very much of the same opinion. To be sure, in the case of murder, malice is a matter to be determined by the Court, but still it must result from the facts, that is the province of the Jury, and all that a Judge can do, is to sum up those facts to the Jury, with such admonitions as he thinks proper; taking the result of those facts to be one thing it is murder, taking it to be another it is not murder, and therefore it is a complicated case of law and fact. Now to apply that maxim to the present case, here it has been proved, that one of the parties did come there with an intention to settle an account, but it may happen that he afterwards combined with others to do an illegal act, and in that case he shall not protect himself under the idea that he came there originally for a legal purpose. Here it is stated in the first place, that every animosity was entirely laid aside, they shake hands, and it is supposed that every thing was over; afterwards one of these men cries out chiac, you take one and I will take the other, and then, without any other quarrel, they go to fighting at the time that every animosity was laid aside; the third man shuts the door, and keeps it shut; that is a matter likewise to be left to a Jury to say whether that act of shutting the door did or not mean to facilitate that breach of the peace that the others were engaged in; if it was so, that will implicate him in the whole of the fact. Therefore it does seem to me that this case should be summed up to the Jury with such observations as occur to the learned Judge.</p>
<p>Mr. Justice Rooke. I am clearly of opinion this is a case to go the Jury, and not for the Court to decide upon; these three men are implicated together: the question is, how far they are implicated, and what the bad intent was that they had in view; one cried, chiac, and the other went to the door and held it that they might not escape; and it is very clear upon the face of the evidence, that they had a bad intention towards Wilson and Wakefield; and if they had, they must answer for all the consequences in pursuance of that bad intention. Now the case put by the Counsel is this - Suppose, instead of making the attack upon Hayes, the attack had been made upon the landlady or the maid, would that have been murder? The answer I give to that is, it would depend upon what the landlady or the maid were doing at the time: if they were sitting still in the bar at the time, it would not have been a pursuance of the attack upon the soldiers; but that is not the case with the attack upon this poor man, Hayes, for he had got off his seat when he found the two soldiers knocked down, and might have been considered by Symonds as coming to the assistance of the soldiers; for as soon as he sees Hayes coming up, he knocks him down too. The case in Keyling appears to me to be a case in point against the prisoners; for there it was admitted by all the Judges, that if at the time the men were engaged in smuggling, the gun had been levelled at the officers, who were going to seize the wool, it would have been murder in them all, but that did not appear in the special verdict. So here it is for the Jury to decide, if they are of opinion that when Hayes quitted his seat he was thought by Symonds to have come up to assist the soldiers, there cannot be a doubt that they are all answerable, for they are all pursuing the same line, two of them in actual combat, and the third doing that which might prevent any assistance coming to them. If, on the other hand, the Jury should be of opinion that Hayes was not coming with that view, and that Symonds did not knock Hayes down in consequence of the illegal purpose for which these three men combined, then the consideration might be a very different one; but, under all the circumstances, I have no doubt that it is a case for the Jury to decide.</p>
<p>For the Prisoners.</p>
<p>
<persName id="t17980912-15-person196"> RALPH HEARNE
<interp inst="t17980912-15-person196" type="surname" value="HEARNE"/>
<interp inst="t17980912-15-person196" type="given" value="RALPH"/>
<interp inst="t17980912-15-person196" type="gender" value="male"/> </persName> sworn. - Examined by Mr. Knowlys. I am a serjeant in a corps belonging to Major Steele, which was afterwards drafted to Chatham barracks; I saw the deceased the morning after he had received the blow, between twelve and one o'clock; he was a sailor, and had been with me several times trying to get into the supplementary militia, for he said he was totally starved where he was; he was not a very healthy man, he was a very weak man and appeared to be much as usual that day; we drank part of five pots of beer together, and I went about my business; the next day I had been on the parade, and I met him about half past ten in the morning; he said he was going to see about his prize-money, somewhere towards King-street, that was on the Thursday; he appeared to me to be then much as usual.</p>
<p>Q. Did you see him afterwards, the next day? - A. I had been up to Clerkenwell, and meeting an acquaintance of mine promisenously who had come from Coventy, we went into Mrs. Marshall's to have some beer together, that was between three and four in the afternoon; during the time we were drinking this pot of beer, Hayes came in and said to Mrs. Marshall, I have been and done your job; she asked him to have a glass of something, and he asked her for some dinner, and Mrs. Mar
<xptr type="pageFacsimile" doc="179809120028"/>shall reached him a soup-plate with some Irish stew in it, and he eat it as hearty as ever I saw him eat; he then joined my friend and me in drinking; he gave the boy the pot to draw some more beer, and the boy refused to draw it without having the money; and he said d-you, you dog, go and draw it. I was there about an hour and a half, and he said, he had been carrying a trunk to Clare-market; and a young fellow came in, and d-d him for a fool, for taking so heavy trunk to Clare-market, for so little money; he said, he had nothing to do, and he might as well earn ninepence that way as any other.</p>
<p>The prisoner, Bartholomew, called eight, and Knight, two witnesses, who gave them a good character for good nature and humanity.</p>
<p>Both
<rs id="t17980912-15-verdict85" type="verdictDescription">
<interp inst="t17980912-15-verdict85" type="verdictCategory" value="notGuilty"/> Not GUILTY </rs> </p>
<p>Tried by the second Middlesex Jury, before The LORD CHIEF BARON.</p> </div1></div0>
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