The Proceedings of the Old Bailey

 

389.   PATRICK BIRMINGHAM , and   SAMUEL HALL were indicted for burglariously and feloniously breaking and entering the dwelling house of   Robert Gray , about the hour of eight in the night, on the 2d day of April , with intent the goods and chattles of the said Robert, in the said dwelling house, burglariously and feloniously to steal .

The Witnesses examined apart at the request of the Prisoner.

  ROBERT GRAY sworn.

I live in  Dean-street, Red Lion-square .

What is your business? - An organ-builder , I know nothing of the robbery, I was out at the time.

  CHRISTOPHER IBBETSON sworn.

On the 2d of April, about eight o'clock, me and another person were riding down Leigh-street, Red Lion-square, and we saw a young fellow come out of Mr. Gray's parlour window, I spoke to the gentleman that was along with me, and as I spoke, Hall opened the window, and the prisoner Birmingham jumped out; there were pallisadoes before the window, Hall was in the street and had hold of the shutters, Hall opened the window shutter, and then Birmingham came out.

Court. Was it dark? - Yes, it was candle-light.

How near was you to him? - About three yards.

How did you distinguish their faces? - It was quite a moon-light night, I could distinguish them by the light of the moon; Hall did not attempt to run away.

Mr. Sylvester, Prisoner's Council. Did Hall stop? - I crossed over to him, and bid him stop.

And he stopped immediately? - Yes.

How many minutes might it be? - Not many.

Prisoner Hall. He swore that I had hold of the shutter the first time, and the second time he said I was near it, but I had not hold of it.

When you was before the Justice of Peace, did not you swear that he stood near the window, not that he touched it, or much less that he opened it? - If I did I must say false, for he opened it, and held it for the other man to come out.

Was you examined twice? - Yes.

Did the Justice admit him to bail? - Not when I was present.

  SARAH WOOLLEY sworn.

I live with a gentlewoman that has Mrs. Gray's first floor, Mrs. Gray came

up stairs to sit with the gentlewoman that is ill, and brought a young child about two months old, and I took it down stairs, and gave it to the maid to give it some victuals, and then I heard the alarm.

Court. Do you know how the house door was? - I cannot tell, it was shut when I heard the alarm, I did not hear any body in the house.

  MARY HARROW sworn.

I was in the house, my master was not within, my mistress was, the door was shut, it is with a spring lock, and it is generally shut, it cannot be opened on the outside without a key.

Was the parlour window open or shut? - I shut it in between six and seven, pushed it in, but not fastened it, and the sash was down, I am sure of it.

Did you see or hear any body in the house? - No.

Mr. Sylvester. What does your family consist of? - Master, mistress, and five children.

What are the ages of those? - The eldest is thirteen.

A boy or a girl? - A boy.

Is he at home? - He is put out to school.

Was he at home then? - I cannot say where he was, he was not in the house at that time, he was out with other boys.

When did he go out? - After he had had his dinner.

How long did he stay out? - Till after it was over.

What age is the next child? - About nine, that is a girl, she is at home.

Were was she that afternoon? - She was in the parlour in the mean time with me.

I suppose you was going backwards and forwards in the house was not you? - No, I was in the parlour with three of the children, I did not leave the parlour till we heard the cry of thieves.

How came you not to shut the window shutters? - I just pushed it to with my hand, and a little child in my arms, I meant to get a light to fasten it.

Did you push it too from the outside or the inside? - The outside, that was between six and seven, I cannot say whether any body had been in from that time till the alarm was, I do not think they had.

What do you know? - I know for certain that nobody had been in that room, my mistress was above stairs with a lady that was sick, she was but just gone up stairs, she drank tea in the parlour, but not in that parlour.

When your mistress got out; do you not know which way she went? - No.

Do you know what time the boy came home? - No.

What is the age of the next child? - About seven, a girl, she was all the time there.

Do your children always sit still my girl? - She was not out of the room I am sure, because I was with her, we have no lodgers, only a lady in the first floor, I pulled the door after me, it is a catch lock.

You are not careless I suppose at all? - No, I am not careless, I went out in the street, and coming by with a child in my arms, I thought it was time to have the door shut, they could not open it without a key on the outside.

Did you try it? - No, I shut it in the usual way.

Court. You say your mistress went up to the sick person, what time was that? - Between seven and eight.

She does not go through the parlour? - No, the stairs front her as soon as she comes out of the door, and she goes directly up.

You are sure the sash was shut down? - Yes, I shut it down in the morning, and it was not opened at all, it sticks out when it is not fastened, any body can tell that it is not fastened.

Was the sash fastened down? - It was fastened down, it was not screwed down.

PRISONER HALL's DEFENCE.

I was coming down the street, and the shutter was a wide shutter, it projects right over the pavement, and I might run against

the shutter once, but no more; it is a single shutter to the whole window, I might touch it with my shoulder.

Court to Ebbetson. The prisoner says he only might touch it with his shoulder, as it stood upon the jar? - No, he had hold of it with his hand.

Court. Had he hold of it with his hand, did he shut it too with his hand? - He shut it too with his hand, and opened it again.

Did you take notice at the time, whether the sash was up or not? - I saw the sash up, and saw the man come out of it.

PRISONER BIRMINGHAM'S DEFENCE.

I was coming from Gravs-Inn-Lane about half after seven, and I stopped to make water opposite the house on the other side of the way, I saw a man standing at the window, and the window was up, I thought the man was about no good, seeing the room in darkness, I went on towards the place, and the man run away, and another man came and rushed out right against me, with that my hat fell down, he thought I was going to lay hold of him, he pushed me as I was stooping for my hat, and this gentleman came up and thought I was the man that came out of the window, there was one man standing outside, and when he saw I took notice, he made off as fast as ever he could, and when I went over to the window, a man came out right against me, I never was in the house in the world, nor never knew a half-penny worth of any thing dishonest.

Court to Gray. How high is this window? - I believe about three foot.

Court. Then Hall might run against it, there is no doubt.

  WILLIAM OWEN sworn.

I have known Hall two years, he has lodged with me that time, I am a butcher in Cannon street, I had a very good character with him, and I know nothing to the contrary, it was such a character, that I would take him in again.

What business is Hall? - A carpenter .

  WILLIAM BARNES sworn.

I am a corn chandler, I live at Clapton, near Hackney, I have known Hall better than two years, he was at work for Mr. Hilton, and he being slack of work, told him he must lay by for a week or more, then he came and worked for me, and built a granary, it is in hand now, he is at work for me now, I will employ him now, no man sooner, he has always done me justice, more people would have come to his character, but we thought it not necessary to trouble our neighbours.

Court to Birmingham. What are you? - A gentleman's servant , I came from Ireland three months ago, I have no friends but an aunt that I kept with, since I left my master.

Court to Jury. Gentlemen this is a capital offence if proved, the facts must be either actually breaking the house by violence, or a constructive breaking, which will be construed, in point of reason and justice, the same as if there was an actual force and breaking of it; for no man has a right to say you have not secured your house in a proper manner, if your door is only upon the latch, lifting that up is as much a burglary as breaking the door to pieces! for the same reason it is determined that if a sash be shut down, the lifting it up is burglary, for no man has a right to say, you should have fastened your house better, if you do not I will come in at every room in your house; another thing is, if a burglary is committed, or intended to be committed, if persons are not in the house, but go there with intent to help and assist, they are equally guilty of the burglary with the person that gets into the house: I cannot help thinking but this girl's going out of doors and pushing the window shutter too, might be a lure and temptation for getting in, as there was nothing but a sash to throw open to obtain access into the house: there is no evidence to shew you, that after the time this girl pushed this window too, and shut the outside door, that any body went into that room. If the prisoner Birmingham was in the house, then the matter for your

consideration is, with what intent he went in there; it was night and the candles were lighted, it was about eight o'clock; the sun is down about thirty-two minutes after six, but then there is an hour for the twilight, and if you could distinguish men's faces by the daylight or the twilight, it is not so completely night as to constitute the crime of burglary; but Ibbetson does positively swear that all the light that enabled him to see the faces of the prisoners was the moonlight: with respect to Hall he never was in the house, and the only consideration is, whether he was there as an accomplice with, and joining in the felonious intent, supposing you think there was one, and whether he was aiding and assisting in carrying that intent into execution; if you believe Ibbetson, Hall certainly must be considered as a principal in aiding and assisting Birmingham to attempt to carry their illegal proceedings into execution, for if he opened the window for one, or shut it again, and opened it for another, in order that they might make their escape, and if so, though not in the house, yet aiding and assisting, he is as much guilty as if in the house himself; but as he was not in the house, you must have the stronger evidence to satisfy you that he was an accomplice; he has called two people to his character, and has a very good character; if you are satisfied that Birmingham got into this house through the window, or broke the house to get in, then he is guilty of the burglary, and if you think the other man was there aiding and assisting him, then he is guilty also; but if you think he was not there as aiding and assisting the prisoner Birmingham, in that case you will acquit him.

PAT. BIRMINGHAM   SAMUEL HALL

GUILTY Death .

Tried by the first Middlesex Jury, before Mr. JUSTICE NARES.

The prisoner Hall was humbly recommended to mercy by the Jury .