The Proceedings of the Old Bailey

 

213.   WILLIAM GEMPESTEIN , for the wilful murder of   Frederick Charles Swain.

MESSRS CHARLES MATHEWS and ELDRED Prosecuted, and MESSRS. GEOGHEGAN and MUIR Defended.

  JOHN TRIM (112 K) produced and proved a plan of the place in which this occurrence took place.

  CHRISTOPHER TAYLOR . I am a fireman on board the steamship John Bright—I am now staying at 412, Penny Fields—on 8th December last our vessel was lying in the Inner Mill wall Dock—on that night I was in company with three firemen, named Frederick Charles Swain, John Cooper, and John Bahrs, who is also called Johnson—we were all employed on the John Bright—that same night there was lying in the dock a German vessel, called the Liebenstein—that night I and Swain, Cooper, and Bahrs went to the George public-house, and off and on we remained there till closing-time—we were in the public-bar—I heard some German singing going on in another part of the house—at closing time we left, and walked in the direction of the docks, down the Glengal Road; we walked on the right-hand side, two and two, I and Cooper first, Bahrs and Swain following two or three yards behind—as we were walking down, the prisoner struck Cooper; two other men were with the prisoner; I now know they were Krause and Striblow—they came together off the road to us—they were saying something in German which I could not understand—Cooper was knocked down—the Germans went away towards the dock, hardly at a walk—Cooper got up and we walked on together—when we got near the policeman's box and the dock gates we saw the Germans standing up there, waiting about; the three came up together, and they struck Cooper again; I don't know who struck him the second time; he got knocked down again, and when on the ground Krause kicked him—I went into the prisoner like to stop him, to push him away—I made a rush at him to charge him for knocking Cooper about—I got a few blows at a doorway, and he got the same from me—I saw something bright in his hand, and I felt a cut in my left hand; it was bleeding—I saw that after it was finished—Swain and Bahrs were coming up to us when they saw the men getting on to us, and the prisoner then left me and went off for them—he was the only

person there then—he was the only man I was striking—I don't remember where Krause and Striblow were; they had not gone away, they were all close by, but in what position I can't tell—the prisoner went up to Swain, and I heard Swain call out, "I am stabbed"—the prisoner then made a rush to pick up his cap; he stooped down to pick something up, and then ran away—at the time the prisoner went towards Swain, Bahrs was near him—I did not hear him call out; I did not see anything happen to him; he was still standing up, and Swain also—I did not see either of them fall—the prisoner ran over the bridge right past the policeman's box; they all ran together—the policeman at the dock gates pursued them, and within a short time he brought the prisoner back, and he was taken to the station—Swain was then lying on the ground; I could not say when he fell—he was not speaking or making any sign of being alive—Bahrs was in the police-box lying down; I did not see him fall—I remained on the same spot all the time—Bahrs was calling out as if he had been hurt—then I and Cooper, the prisoners, and some policemen all went to the station together—I think there were three policemen there then—the prisoners were charged at the station—I don't remember whether they made any answer—I afterwards saw the dead body of Swain in the mortuary.

Cross-examined. Our ship had come into dock about seven that night—this was our first night ashore—we had come from the Persian Gulf—we went into the George about half-past nine—some of us went out to get shaved, and then went back, and left about closing time—we were in the public bar—no word passed between the Germans and us there—we came out first, and the Germans followed; there were four English and three Germans—I did not see Striblow do anything—Krause kicked Cooper and then went away from us—I don't know where he went—when Cooper was knocked down I don't know whether he said anything; I caught hold of him to prevent him making a noise, to prevent him following the Germans and fighting with them—I saw two dock constables where the Germans were, Howard and Smith—I and Cooper waited till Swain and Bahrs came up—I don't remember one of us saying, "There are the three men; they have been getting on us, let us fight them"; I never said so—I did not hear the words, "There are those cursed Germans, let us have a row with them"—the Germans did not retreat across the bridge and we follow them—all I did from first to last was to give the prisoner some blows.

Re-examined. I did not see Striblow do anything; I saw nothing in his hand—when Krause went away I was closed with the prisoner; it was then I saw something bright in his hand, and after that I saw the cut.

  JOHN COOPER . I am twenty-one years of age—I was a fireman on board the John Bright, lying in Millwall Dock—we went to the George, and left at closing-time, and came up the Glengal Road; Taylor was with me; Swain and Bahrs were just behind us—as we were walking down the road the prisoner came up and knocked me down; Krause and Striblow were with him—he did not say anything; he ran away, and the other two with him, up Glengal Road, towards the dock—I got up and went on in the same direction with Taylor—a few yards from the dock gates the Germans came back and met us, and the prisoner knocked me

down again—Krause and Striblow were with him; I was knocked down and Krause kicked me, and I saw nothing more.

Cross-examined. All through this affair Striblow did nothing that I saw—I felt injured the first time—I did not try to run after the men or to fight them—Taylor did not catch hold of my arm to prevent my doing so—he said, "Don't make a noise," and I did not—I did not hear any of my companions say, "There are the Germans, let us fight them"—I did not make a rush at the prisoner.

  JOHN BAHRS . I live at 38, Penny Fields—I am not now an inmate of Poplar Hospital—I was a fireman on the John Bright—I am an Austrian by birth; I am known as Johnson on board the ship—on this night I remember leaving the George about closing-time—Cooper and Taylor talked down the Glengal Road in front of me and Swain; we were a few yards behind—as we went along the prisoner Krause and Striblow came behind us—I and Swain got on the side to let them pass, and Cooper was shoved down; I did not see who did it; they were walking arm-in-arm—Swain said, "You should not do that, we are walking along quietly here, and do not trouble anybody"—they made no answer—they walked on ahead of us, in the direction of the dock gates—after we had walked some yards farther I met a man named Ball, whom I knew, and I stopped and spoke to him, Swain stopped with me; Cooper and Taylor were walking slowly ahead of us—I remained talking to Ball about ten minutes or a quarter of an hour, and then I and Swain went on in the direction of the dock gates; the other two had got a good way ahead of us; when we got up-to the outer gates Cooper and Taylor were fighting with the prisoner Krause and Striblow; they were fighting with their hands, all five of them—I and Swain were walking up to them—the other two were walking on the other side of the road—the prisoner was standing between me and Swain—I heard Swain call out, "I am stabbed"—the prisoner said to me in German, "What is it that you want? there you are"—afterwards I felt that I was stabbed—I saw the blood running out of my left arm—one of them, Krause or Striblow, came up to me and tried to strike me, and I pushed him back in the mud; that was before I felt myself stabbed—at that time one was on the other side of the road, and the other was about in the middle; neither of them was near enough to have stabbed me—they came up to me and tried to strike me, and I pushed them back, not both, one of them: I could not say which—I did not call out; I went over to Swain and asked him if he was stabbed—after I was stabbed the prisoner ran away—he raised his hand to his mates and ran right after the police-box, in the direction of the bridge; I did not see him after that—Krause and Striblow ran in the same direction—Swain was then lying on the ground; I did not see., him fall; he could not speak, he was groaning—I became unconscious, and don't know what happened till I found myself in the hospital.

Cross-examined. As we went along one of the Germans gave Cooper a shove sideways—I did not see whether they struck him a blow or not—the Germans were walking arm-in-arm—I don't know the width of the pavement there; I did not notice that there was a pavement—after Cooper was knocked down the Germans still went on arm-in-arm.

  GEORGE BALL . I am a ship's fireman, living at 116, Brunswick Street, Poplar—on the early morning of 9th December I was in the Glengal Road, and saw three men loitering about on the George side of the bridge

—I went on and met four men, one of whom, Bahrs, I knew—I talked to him for about ten minutes; another young man stopped with us, and the other two men went on ahead—the two men I was talking to seemed to be sober—I did not notice anything after I left Bahrs.

  GEORGE HOWARD (Millwall Docks Constable 31). At half-past twelve on the early morning of 9th December I was at the dock gates, and I heard some quarrelling going on between some German and English sailors near the bottom of the Glengal Road, near the George public-house—after the quarrel three of the Germans came up the road and passed by the gate going towards the bridge; in a few minutes they returned and met the Englishmen at the gate—the four Englishmen came up to the gate nearly together, there may have been a few yards dividing them—when the Germans and Englishmen met they renewed the quarrel again, with words and blows, and it did not last a minute before the man called out he was stabbed—I did not see any blows dealt; not thinking anything was going to occur I was not looking; I had two gates to attend to, and I cannot tell what happened; my attention was attracted by hearing the cry, "I am stabbed!"—I went towards him, and he was turning towards me, and as soon as I saw the blood on his neck I ran to the man nearest to him (the prisoner) and followed him over the bridge to the gate, and caught him there and brought him back; Swain was lying on the ground apparently dead; I believe I said, "See what you have done," and he said, "Not me"—Bahrs was lying on the ground when I returned; he was bleeding from his arm, which ho was holding—I took the prisoner by the arm, and went to Cubitt Town Police-station—another constable took Krause—Striblow had not been brought back then—at the station all three men were charged together; no interpreter was there at the time—I do not think the prisoner made any answer—I left him there in custody; I was not at the station afterwards when the interpreter was there.

Cross-examined. I said before the Magistrate that there was a quarrel, and "Shortly afterwards they came back, and met the Englishmen again, and recommenced quarrelling, and then got to blows;" and I may have said, "And the prisoners moved back about ten yards, the Englishmen driving them back towards the dock bridge"—I don't remember saving that, but I may have done so—they were all mixed up together—the three men were standing in the dock when I gave my evidence.

Re-examined. I was looking after my two gates, and the cry, "I am stabbed!"first called my attention.

  JOHN SMITH (Millwall Dock Police 20). I was in the dock in Glengal Road with Howard on this evening—when I was in my box, I saw the prisoner, with Krause and Striblow, come up the road, from the direction of the George;. they stopped about a minute opposite the box, and then passed on towards the dock bridge—directly after I saw them returning from the direction of the dock bridge, towards me, and in the direction of the George—they stopped about twenty yards from my box in the middle of the road—at that time I saw four men, who seemed to be together, coming from the direction of the George; they stopped at the gate, and about the time they stopped one of the men, seeing the men standing in the road, said, "Those three Germans have been getting on to us, and we will fight them"; and the four men passed on towards

the three—almost as soon as all seven men met in the road one man called out, "I am stabbed!"—Howard and I rushed towards them, but before we reached them a second man called out, "I am stabbed!"—then the three Germans ran away over the dock bridge—I accompanied Howard to the bridge; he blew his whistle for the gate-keeper on the other side of the bridge to stop the men at the gate—I returned to the gate, and saw Swaine lying on the footpath outside the box apparently dead, and Bahrs lying on the bottom of the box groaning—I did not see anything in any of the men's hands, from where I stood I could not see a blow struck, and I could not see sufficiently to identify one man from another—Howard brought back the prisoner in custody; he was wearing a cap, I believe, and a leather jacket like be has got now.

Cross-examined. When the Englishman said, "These Germans have been getting on us; we mean fighting them,"I was about twenty yards from the Germans, who were then standing still; the Englishmen went towards them.

  LEWIS SAMUEL WILLIAM INNOCENT . I am landlord of the George—there were only three German sailors in my house—they were all sober when they left; the house was clear at twenty minutes past twelve.

  WILLIAM CULLING (Inspector K). I followed the prisoner into the Isle of Dogs Police-station—I charged him; no interpreter was present, and the prisoner said nothing in answer to the charge—Constable Wynne brought two caps to the station, and at the time he did so the prisoner had a cap in his hand—when Wynne held the caps up the prisoner said, pointing to one of them, "Mein cap, mein cap"—it was given to him—I have searched at the scene of this affray in order to discover a knife, we have not found anything—a diver has been employed in the dock, but has not found anything.

  JAMES HAWKINS (Inspector K). At half-past ten a.m., on 9th December, I charged the prisoner—Mr. Rosenberg, the interpreter, was there.

  EDWARD ROSENBERG . I am an interpreter—about half-past ten a.m., on 9th December, I was at the station when Hawkins charged the prisoner, and I interpreted the charge to him, and he seemed to understand me—I cannot tell exactly what the nature of the charge was, but whatever Hawkins told me I interpreted correctly—the prisoner made statements which I correctly interpreted to the inspector, who took them down in writing.

Cross-examined. The first time the prisoners all spoke together, and made statements which I was unable to give to the inspector—there were three men behind a long table—the inspector said something to me in English, which I repeated in German to the three men—they were then very anxious to make statements, but I prevented them, because the" inspector told me that any statements they desired to make they could make before the Magistrate, and he told me to caution them—I did not exactly stop them, I only told them what the inspector said—the inspector said they would have an opportunity of making statements before the Magistrate, and I interpreted that—before that the prisoner was desirous of making a statement.

Re-examined. After I told them something about the Magistrate they all made a statement which I interpreted, and the inspector took down in writing.

  JAMES HAWKINS (Re-examined). On this morning I told the three men

they were charged with being concerned together in feloniously killing William Swaine by stabbing him in the neck in Glengall Road, and they were further charged with feloniously cutting and wounding John Bahrs by stabbing him in the arm with a knife; the prisoner was also charged with cutting and wounding Taylor, and all the men were charged with assaulting Cooper by knocking him down and kicking him at the same time and place—those charges having been interpreted they all seemed anxious to address me, and started off together to do so—I told them they could make any statement they wished before the Magistrate; from their demeanour I had an idea they thought I was trying the case, and I told them I was simply charging them—the prisoner said, "We walked; some five or six persons accosted us, and knocked us about, and said, 'You b——y Dutchmen!' we crossed the road to where the policeman was standing, and one of our assailants pulled off his coat, challenged us to fight him, and struck me a blow on the chest; we ran away, me and my mates, a policeman blowing his whistle, and he got hold of us."

  JAMES CRISP (293 K). In the early morning of 9th December I was at the corner of Glengall Road—I heard a whistle blown from the dock gates; went up Glengall Road, and found the prisoner in custody—I afterwards took Krause to the station—I searched the prisoner at the station, and only found a handkerchief on him.

Cross-examined. I arrested Krause twenty yards from the constable's box, on the opposite side of it, and on the right-hand side of the road, the box being on the left.

  WILLIAM PALMER (341 K). I was on point duty in Glengall Road on this early morning, and soon after a quarter to one, from information which reached me, I went to the dock gates, where I found the deceased man Swaine, and took him to the mortuary—Mr. Leslie soon afterwards saw him there.

  WILLIAM MURRAY. LESLIE . I am a registered medical practitioner, of 531, Manchester Road, Poplar, and divisional surgeon of police—on the morning of 9th December I was called to the dock gates, and there saw a dead man lying on his back on the pavement—he was taken to the mortuary, where on the next day I made a post-mortem examination of him—I found on him two wounds, one on the back of his left hand, uneven, jagged, and somewhat triangular, cutting through two tendons, and the other, on the left side of the neck, a gaping wound extending through the skin, nerves, veins, and chief artery, between that point and the lower border of the first rib—it was two inches or more in depth, but it was difficult to know its exact end, on account of its passing into the pleural cavity—it passed through the sub-clavian artery, which was completely severed, and through part of the first rib, splintering the bone—it was a wound that would have required considerable force to inflict—it was the fatal wound—death was due to syncope from loss of blood, occasioned by the wound in the neck—both wounds might possibly have been caused by the same implement, but I could not swear to it—the wounds must have been occasioned by a broad-bladed instrument, because the transverse length of the wound was considerably over an inch, in fact I should say at the top it was one-and-a-quarter inch; it was impossible to say whether the implement was pointed or not, because the end of the wound was in the pleural cavity—I could not be certain whether the weapon had more than one edge—it was a wound that

could have been inflicted by a chisel or by a knife; but it must have been broad-bladed and used with considerable force.

  JOHN COOPER (Re-examined). I was at the Police-station when the prisoner was brought in—he had Swaine's cap in his hand; this is it; Swaine was wearing it on that night when we came down Glengall Road before we met the prisoner, and after we met him first; Swaine was still wearing it till we got to the dock-gates—I did not see Swaine lose it nor the prisoner pick it up.

Cross-examined. I don't know whether there was a general scrimmage and they were feeling for their caps in the darkness; I was lying in the middle of the road.

  JOHN TRIM (Re-examined). There is pavement on both sides of the road going down to the dock-bridge—on the right-hand side it is about five feet nine inches or six feet wide.

The following Witnesses were called for the Defence.

  LUDWIG KRAUSE (Interpreted). I am assistant-engineer on board the Liebenstein—I was eighteen years old yesterday—on the evening of 8th December I left the Liebenstein about seven o'clock—I met Striblow at the dock-gates, and went with him to the George public-house, and at eleven o'clock I went to the George again—I heard a number of Germans singing in there, and I went into the compartment and joined in with them; one of them was the prisoner and the others my shipmates—Killgrass and Sewer were not there then, but they had gone on shore that evening—I remained till closing-time, and then I, the prisoner, and Striblow left to go on board our ship, and walked arm-in-arm on the right-hand side of the path going towards the dock-gates—we passed two Englishmen without any interference, and then we came up to a second pair of Englishmen—I left the prisoner's arm, and went a little bit in the road; the prisoner, in passing the two Englishmen, shoved one of them aside; then I came on the pathway again, and the three of us went towards the dock-gates—we were on the right-hand side of the road; I saw the constable's box on the left-hand side—when we got to the bridge Striblow said, in the prisoner's hearing, "Sewer and Killgrass are still on shore; we will wait and join them, so that we can go on board together"—we all turned round, with our faces towards the George, and I saw the four Englishmen coming up the road—I said, "We bad better go on the other side of the road, so we might not meet together with the Englishmen"—we all three then crossed to the constable's box on the left-hand side of the road—the four Englishmen followed us; when we saw that we stopped—Cooper approached us and put himself into a fighting attitude; he pulled his coat back, and then tried to attack me—I saw that he had closed with' Gempestein—I stood there; I was attacked by somebody who struck me; I lost my cap—I was then in the middle of the road—I shoved away the man who was attacking me; I did not say anything to him—I saw the prisoner was fighting—Striblow ran away—I do not know if he ran away before I was attacked and the prisoner was fighting—the prisoner ran away—he told me he was twenty years old.

Cross-examined. I had no weapon on me—the prisoner is carpenter on the Liebenstein—I have seen him in possession of a chisel on board ship—when the Englishmen came up to us at the outer gate of the. docks,

they were two and two—we stood about a quarter of a second by the constable's box—I did not see the prisoner outside the gates knock Cooper down; I only saw him strike him with his fist; I did not see Cooper fall down—I did not do anything to Cooper at that time; I never saw him lie on the ground—Cooper tried to attack me; I shoved him away from me, that was all—I did not hear anyone call out "I am stabbed!"—I could not understand—I heard someone speaking, but I could not understand what—I did not hear anyone say in Gorman, "Was ist est? Das du wilst? Da hast du."

  GOTHELF STRIBLOW . I am a German, and one of the crew of the Liebenstein—on. this evening I was with Krause and the prisoner at the George at closing-time—two other' of our shipmates were on shore—I, Krause, and the prisoner left the George and went up Glengall Road towards the dock, walking on the right-hand side of the way—we pasted two Englishmen, and then came up to two other Englishmen—Krause went into the middle of the road, and I went between the two Englishmen, and the prisoner pushed one of them; I did not see if ho fell—Krause came on to the path again, and we three walked on to the dock bridge, when I suggested we should wait for Killgrass and Sewer—as we waited, I saw the Englishmen coming up on the right-hand side—Krause said, "Let us go on the other side of the street, for that we don't come again to the English fellows"—we crossed over to the left-hand side whore the constable's box was—the Englishmen came up, and one said, "Come, they are the three Germans; let us fight with them"; and at the same moment I saw that the prisoner and Cooper were fighting—I said to the prisoner, "Come, Gempestein, let us go on board; I don't like this"—he said in German, "Master, you can't expect that I shall be beaten by this man"—I saw the other two Englishmen, Swaine and Bahrs, come up; one fellow gave me a smack in my left eye, and I ran away, and an English fellow pushed me, and I fell down—the man that struck me in the eye struck me on the knee with his foot; I cannot say who it was—I ran across the road, and when I was on the other side I heard someone holloa out, I am stabbed!"—I am married.

  FREDERICK VOGT . I am captain of the Liebenstein—the prisoner has been one of my crew since I joined the ship on 6th October—no has borne the character of a peaceable and quiet man since then.

Mr. JUSTICE CAVE considered that there was not evidence to support the charge of murder.

GUILTY of manslaughter — Eighteen Years' Penal Servitude.

There was another indictment against the prisoner for wounding Bahrs.