Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 16 September 2021), January 1849, trial of JOSEPH BARLEY (t18490101-405).

JOSEPH BARLEY, Killing > murder, 1st January 1849.

405. JOSEPH BARLEY was indicted for the wilful murder of Lewis Constatt: he was also charged, on the Coroner's inquisition, with feloniously killing and slaying the said Lewis Constatt.

MR. CLARKSON conducted the Prosecution.

ROBERT WELCH . I am a labourer, of St. Katherine's-dock. On 16th Dec., about a quarter before nine o'clock, I was there, with many others—the warehouses lettered D and F are both in Nightingale-lane—the labourers assemble at the gates early in the morning, waiting to have their names called over, to be set to work—I had been to the F warehouse that morning, and went from there to D, with about 200 others—the crowd extended into the road, as there was not room—I saw the prisoner driving a laden coal-wagon, coming from the wharf towards East Smithfield—that would bring him to gate F first—when I first saw him he had passed F, and was coming towards D—I do not know the width of the road at F—there certainly was room for the prisoner to have passed F without coming foul of any of the men there—I saw him pass F warehouse—I had advanced from F gate—I heard an altercation between the men and the prisoner, and they had been shouting to him because he had driven so close to them—he stopped his horses, threw down his whip and coat, in order to go back and fight with any of the men—I was then about midway between F and D—the prisoner went back, and was knocked down twice—he then took up his hat and coat, and went with his wagon towards D warehouse—I was then on the flag-stones, about twenty or twenty-five yards from F, going towards D, to seek employment there, at there was no chance at F—I was on the near side of the wagon—the prisoner was on the near side, driving towards D—the gates F and D are on the near side—as he advanced towards D warehouse I was close to the gate, waiting for Mr. Hunter, the wharfinger, to call the men on; and when the prisoner got there there were about 150 men waiting for work, and I saw him throw his whip over the wheel horse's neck, which brought the horse and the wagon nearer to him, and in closer contact with the men than there was any necessity for—in about half a minute the men cried out that a man was on the ground, and the wheel had gone over his head—I advanced, and saw the man lying on the ground—his name was Lewis Lewis—I used to work with him—the prisoner was going at a regular steady pace at the time—the body was six or seven feet from the pavement, quite in the middle of the road, which I think is about twenty-one feet wide there from one kerb to the other—there was room for the wagon to have passed without coming in contact with the men.

Cross-examined by MR. BALLANTINE. Q. How many people were there about F warehouse when the wagon passed? A. Perhaps a hundred—they were all crowding round the gate getting as close as possible to present their tickets—the road there is two or three feet wider than at D gate—many of the men were in the road, they are obliged to be so—every one of us want to be opposite the gate, and in view of the man calling out—our object is to get in his sight—we are more likely to be seen opposite the gate than behind

him—I saw the wagon pass among the men at F—I did not notice that the men drew off, some on one side of the way and some on the other;—they all stood together as they generally do—I have never seen a disturbance at the gate before—they were obliged to get out of the way as much as they could when the wagon came, 1 cannot say whether they did—when a wagon comes some go on one side and some on the other, and leave a pathway for it—when the prisoner had passed I heard them call out and shout—I do not know what they said; I did not pay any attention to it—I was at D gate—I had nothing to do with F—I think the gates at F had been shut—I should not have gone off to D had not the F gates been shut—there is then generally speaking a rush of men to D gate; there was not that morning, as there were not so many—I was about ten, fifteen, or twenty yards from the prisoner when he was knocked down—I did not knock him down, I cannot tell who did; I had nothing to do with it—whether he was knocked down by the same person twice, or by another I cannot say—I did not take any notice—there were one or two men round him, I do not know who they were—I have never told anybody who it was that knocked him down, I never knew—there was a dray and drayman close behind the coal-wagon—I did not hear any of the men at F shout out to the drayman, "We will serve you as we have served the other one"—I make no doubt within myself but what he might have driven closer to the men than was necessary—I know nothing about that—I only go by the shouting—I am only on my oath as to the whip—that shouting did not startle the wagon-horses—F may be two hundred or three hundred yards from D, or more—I was in front of the wagon when the accident happened—Mr. Hunter, the wharfinger who calls the names over, was standing at D gate, and all the men were congregated as they had been at F—they blocked up the road; it is a very dangerous place for men to collect in—the gates at D were open; I am sure of that—I saw them shut after the accident occurred—the mob were not thrown back by anything that I am aware of—as the wagon advanced they pressed towards the gate; they had no chance to press the other way, because of the wagon—if the prisoner had not pot the whip over the horse's neck he would not have brought them so forward as he did—he was near the wheel-horse—it was about half a minute after that that I heard the cries that called my attention.

JURY. Q. Had the man any opportunity of getting away? A. Not the least; the wheel-horse was so close to the body of men.

JOHN BUTLER . On the morning of 16th Dec., about twenty-five minutes to nine o'clock, I was waiting for employment at the F gate, and saw the prisoner come with a coal-wagon and three horses—when he came to F gate he was about eight inches from the backs of the men—there was room for him to have gone further from them on the off side—when opposite F gate he put his whip over the middle horse, and drew his horses close in among the body of men, who were near run over, and after he passed F about two or three yards some words occurred between him and a dockman—there were angry words on both sides—they came to blows; the prisoner was knocked down on the broad of his back—he got up, and two or three more assisted in knocking him down again, and when he got up the second time he was bleeding from the face—he would have no more of the fight, and went away towards D gate, where there was a call for labourers—I walked about a yard behind the prisoner, on the same side of the way—he made an observation that he would give it to some of the b—s at the next gate if they did did not get out of his way—I told him he deserved all he met with at F—he said, "Who the hell are you?"—I went on in advance of him to D—I had

hardly got there a minute and a half when the wagon came opposite it—the shaft-horse came in towards the body of men standing there, and struck Lewis on the left breast or shoulder, knocked him against the shafts, he fell on the ground, and the near fore-wheel went over the right-side of his head—I did not see the hind-wheel go over him; I turned away my head—there was sufficient room for the prisoner to have gone by with his wagon outside the body of men at D; there was fourteen or sixteen feet.

Cross-examined. Q. Did you see a dray passing behind? A. Yes; it was close to the wagon—the horses' noses touched the wagon—there was a drayman with it by the side of the shaft horse—when I spoke to the prisoner he was at the tail of the wagon, and the horses were standing still—that was half way between the two gates—I spoke to him before he started to go on to D—the fight was twenty or thirty yards off—it is about eighty to a hundred yards from F to D—there was no dray behind him then—it came up about a minute and a half afterwards—I do not know the name of the man who knocked the prisoner down, it was a dock labourer—he was knocked down twice, but the last blow he received from two different men; one struck him on the right, and the other on the left side of his face, and felled him to the ground—I do not know the men by name—I should be able to pick them out—I got up to D in time for the call—the gate was opened half way—I was not hired that day—I should say there were 150 or 160 round the gate—they were all crowding round with the intention of rushing in if they could.

JURY. Q. Could the men at D have got out of the way of the wagon when they saw it coming? A. Yes; but they were anxious to be called—their attention was drawn away—it was impossible for one carman to have ordered this body of men to have got out of the way—to have got out of the way be must have gone on the other side; he could then have cleared them—there was nothing passing on the off side, and nothing approaching, except the dray behind—there was fourteen or sixteen feet of ground outside the body of men for the prisoner to have gone on, and that would have prevented the accident entirely—I did not see what caused the horses to come in—I did not see him use hit whip—he was very much irritated when I spoke to him.

JOHN SMITH . I was waiting for employment on 16th Dec., at F gate—I saw the prisoner with his wagon—he threw his whip over the shaft horse's head, and that caused the horse to bear in among the body of 4 or 500 men at F—he then went half-way up Nightingale-lane, stopped his wagon, came back, and showed fight—two or three men set on him and knocked him down—as he proceeded from where the wagon had stopped, to D, I heard him say, "I will run over some of the b—s at the next gate."

Cross-examined. Q. Are you in the habit of working in the docks? A. Occasionally; I can form no idea as to how many people were at D—I was at F—it was about half-past eight in the morning—I was hired that day by Mr. Bailey, the wharfinger at F gate—I cannot say how many times the prisoner was knocked down—I do not know who the parties were—he was not knocked down more than once that I am aware of—I do not know a policeman named William Brees, No. 59 H—(Brees was here called in)—I know that man by sight—I did not see him that day that I am aware of—I saw him in East Smithfield about half-past ten—I had then come out of the docks—I asked him if he knew any thing about the accident—he did not tell me he had seen the man taken to the hospital—I told him I had only heard of the accident, the moment before, from some men in the docks—I did not see the man run down or injured—I only speak to what occurred at F gate—I did not see any thing at D—I did not say that a man in the dock had told

me the man's name, and given a description of him, which answered to that of a man who had been like a father to me—I had asked the foreman and ware-house-keeper to let me go out and ascertain about it—I did not name that to the policeman—I did not tell him that I had been at work in the docks from half-past seven until that time—the dock was not open at half-past seven—it was impossible for me to be there—I did not ask the policeman where I had better go to ascertain the particulars of the accident—he told me I might go to the station-house—I have no recollection of meeting the policeman again that morning—I did not tell him that I had been to tell the man's wife of the accident—the policeman might have been at the police-court when the prisoner was committed—he did not ask me whether I had anything to do with the case—I did not say I had little or nothing to do with it, and walk off—he did not say how could you have the heart to swear the man's life away when you knew nothing about it till you were told in the dock—it is an entire falsehood—I was at the inquest—I do not know Richard Phillips (looking at him)—I never saw him before that I am aware of—I was examined before the Coroner—I did not come out of the waiting-room and say to Welch, that I was so puzzled that I did not know what to say—no such words were made use of by me—Welch did not on that, say to me, "Hold your tongue."

BENJAMIN AUVACHE . I was waiting for employment at the D gate, on 16th Dec,—I saw the prisoner with his wagon within about two feet of where I stood—I saw him throw the lash of his whip across the shaft horse's neck, and by so doing he brought the horse in from a foot to eighteen inches on the body of men; and in less than a minute after, I heard a cry that a man was run over—the men were standing out into the road—there was room for him to have passed along the road and have avoided the men.

JOSEPH VERE . I was at D gate on the morning of 16th, waiting for work—there were some horses coming up—I got from the mob on to the kerb, until the head of the wagon passed; then hearing a cry that a man was dead, I went into the road to see what was the matter, and saw the deceased lying with his head quite flat to the wheel, and blood gushing out from all parts—the wagoner was going on quite unconcerned, as if nothing was the matter—I went, took him into custody, brought him back to the gate, and delivered him to the Dock Company's officer—where the man was run over there was about ten or twelve feet of road—there was plenty of room if he had gone on the other side, to have avoided running over anybody.

Cross-examined. Q. Were there no people on the off side? A. There were; I cannot say how many—there was a good ten feet for him to go on on the off side—the people were on the kerb—I cannot swear there were none in the road.

PETER GOWLLAND . I am house-surgeon at the London Hospital. I saw the body of the man at a little after nine o'clock on the morning of 16th Dec.—he was dead when brought to the Hospital—on a post mortem examination I found the bones in front of the skull were more or less driven into the brain, being extensively fractured—the integument in front of the forehead was also severely lacerated—five of the ribs on the left side were driven into the chest, and the left elbow was also injured, and there were marks on the body—I should say his death was immediate—the injuries were such as would be reasonably accounted for by the wheel of a coal-wagon passing over him.

NATHAN CANSTATT . I live in Bevis Marks—the deceased was my brother—his name at circumcision was Lewis Canstatt—for the last fourteen or

fifteen years he has gone by the name of Lewis Lewis—I saw his body at the London Hospital.

MR. BALLANTINE called

THOMAS WESTON . I am a drayman, in the service of Hoare and Co., of Lower East Smithfield. On 16th Dec. I was driving a dray through Nightingale-lane, in the direction of Upper East Smithfield—I remember passing F warehouse, and then observed a coal-wagon—there were a great many people round the gate—the men said they would serve me the same as they had the wagoner—I turned round, laughed at them, and said I had been in the habit of driving over the road a great many years and I had never met with any accident, and I hoped I should not then—I went driving on seven or eight yards behind the coal-wagon—I followed it till it got to D gate—there were a great many people waiting there—just as the wagon got opposite the gate there was a rush back of the people—I saw the deceased—he was the outside roan of the crowd—he was knocked backwards against the shafts of the wagon—the shaft knocked him down, he fell on his face; and before he had time to recover himself both wheels passed over him—the prisoner was then between his first and second horses—he had three horses—he had nothing whatever to do with the accident—the deceased fell behind the prisoner—I saw the prisoner hold his whip in a proper way, to keep the horses off the crowd at his shaft horse's head—I have driven through these crowds for seventeen years—I did not see the scuffle at F—the wagon was moving on when I came up—I attended the inquest.

Cross-examined by MR. CLARKSON. Q. Were you also before the Magistrate? A. Yes, but I was not called—the road is about twenty-one feet wide opposite D gate—a coal-wagon, I should think, is about seven feet wide—the men were all huddling up to get to the gate—the prisoner used his whip in a way to put his horses to the off side—they did move to the off side—there was a great crowd on both sides of the road just opposite the gate.

MR. BALLANTINE. Q. If the horse's head had been drawn towards the man, would that have the effect of throwing out the wagon? A. No—he held his horses off—there was a crow before him, and he had to manage his horses with reference to that—that was what he appeared to be attending to—this accident happened behind him—Willis was on the opposite side of the road—the prisoner did not see that the man was down.

JOHN WILLIS . I am horse-keeper to Hoare and Co. I was passing down Nightingale-lane on the morning of 16th, and was near D gate—I saw the prisoner driving a coal-wagon with three horses—he was against the middle horse on the near side—there was a great crowd, and he was trying to hold the shaft-horse off with his whip from the crowd—there were a mob of men at the gate—they rushed back, and a man fell down against the near shaft, and the near wheels went over him—the prisoner was then before with his second horse—there was a shouting and hallooing—he could not stop his horses when the man fell—the more noise there was the more the horses went away—they would not obey him—he had some difficulty in stopping them—if Weston had not held his shaft-horse right off the wagon the dray-wheel must have gone over the deceased as well—the prisoner had quite passed the gate when the rush took place—he used his whip in a proper manner to get through the crowd, and to keep his wagon as much away from the men as he could—if this rush had not taken place the accident would not have happened—when these crowds are collected at the gate, they do not make room at all for anything to pass, neither at the foot or roadway—the wagon has to pass through slowly while they move from one side to the other.

JAMES DANIELS . I live at 4, Elizabeth-cottages, Kingsland-green, and am out of business. I was in Nightingale-lane on this morning, and saw the prisoner's wagon opposite D warehouse—he was at the second horse's head, driving at a very slow pace—he appeared to be going very carefully indeed—there was a very great crowd, extending beyond the centre of the road—there was a rush of the mob, which I fancy must have been through the gate being partly closed—it threw the man back, and be fell against the shaft of the wagon—I am certain the prisoner did nothing improper with his whip; I did not see him use it at all—I took particular notice when the man was under the shaft, to see whether he was using it—he had his whip in his hand, and was doing all he could to stop the horses.

MS. CLARKSON . Q. How far from the kerb was the wagon when the accident happened? A. About six feet.

WILLIAM BREES (policeman, H 59.) On the morning of the 16th, about half-past ten o'clock, I was on duty in Upper East Smithfield—I saw the witness Smith come out of the Dock—he crossed the road, and said to me, "Officer, do you know anything about this accident that happened this morning in Nightingale-lane—I said that I had seen the deceased going to the hospital as I came on duty at nine o'clock, I met them at the end of Dock-street—he asked my advice what he had best do about it; he had been at work in the dock from seven to eight o'clock, and he had heard nothing of it till that moment—he said they had told him deceased's name, and bad given a de. scription of him which answered that of a man who bad been like a father to bin, he had been reared with him—he said he was very much concerned about it, and had asked the foreman's leave to go out and ascertain about it, and that the foreman had given him leave to stay out till twelve—I told him to go to the station—I saw him again as he came back, at about five minutes to twelve—he then said he had seen the deceased, and he was the man who had been like a father to him; he had been to tell his wife of the accident, and he was the first to give her the information—I saw him again at the police-court—I asked bim whether he had anything to do with the case—he said, "Very little, if anything"—I heard him sworn to his depositions at the Court, and beard what be swore—after that I said, as he came oat of the Court, "How could you have the heart to swear that man's life away in that manner, when you know very well that you knew nothing of it till you came out of the docks to me, at half-past ten o'clock?"—he gave me no answer, but went into the deposition-room to be bound over.

MR. CLARKSON Q. I suppose you knew nothing of any of these people before? A. No—I was not at the police-court on this case, but I had a prisoner committed that day, and was waiting there.

NOT GUILTY .