71. + John Marshall proceedingsdefend , of St. Luke's , was indicted for stealing two bird cages, value 2 s. four canary birds, value 20 s. and 4 l. in money, the property of John Smith proceedingsvictim , in his dwelling-house , Sept. 7. 1743 .

John Smith < no role > . The prisoner lodged with me eight or nine months, about three years ago, and was willing to do any thing in the house; and when I moved (as he was a Carpenter ) I employ'd him to move my goods. I lost in August and September was twelve months, seven or eight pounds out of my till, for sometimes I left the keys in the till. Once in September was twelve months, when I went up to lay down, the Prisoner came to my bed side, when he thought I was asleep, and took the keys out of my pocket; I went down after him, and saw him pull out the drawer of the till, put his hand into it, take part of the money out, and put it into his coat pocket; said I, John, what do you with the money? he said he wanted to change half a guinea; I asked him where the half guinea was; he said, D - n you, do you think I am a thief? then he threw the money into the till, and a tooth pick case along with the money. About two years ago I made him a present of two birds and two small cages; I went to his mother's house, and saw five hang up in the kitchen: I got a search warrant, and found three cages, which was one more than I gave him; one of the three was mine. One John Rogers < no role > told me he had a cage and two birds which were mine; I found one of my cages and one bird which I could swear to, but I would not, because he had pulled the feathers off: those two birds that I lost cost me thirty-five shillings, they were for breeding. About two years ago, when I had a sit of illness, I lost a matter of ten pounds - I can't say that I lost any money when I catched him at the till, for he threw it in again. When he found I was going to indict him, he put me into the Crown; and at a house in Palace Yard he jumped out at the window to get away from me.

Coun. Han't you had some quarrel with him?

Smith. Never but when I bid him get out of the house, and never come in again.

Coun. Did you ever trust him to receive money?

Smith. I never did.

Q. When he took the keys out of your pocket, was your coat on or off?

Smith. It lay by my bed-side.

John Bray < no role > . I have seen the Prisoner frequently at Mr. Smith's till, and take money out.

Q. How came you to see him take money out of another person's till, and not discover it?

Bray. I did not know how affairs stood between Mr. Smith and him; he said, he had part of the trade with Mr. Smith.

Prisoner. Did not you buy a bird of one Scot to make me a present of?

Smith. Yes, and you had it - it was in a little gilded cage, but one bird could not be in two cages.

Prisoner. The bird you gave me died, and you made me a present of two more. These birds were sent to my father's house in order to breed, and you desired I would come to your house to make a partition for your birds.

Smith. Your tongue is very smooth, John.

Sarah Wrench < no role > . I was servant with Mr. Smith when the Prisoner lived in the house; he was there till they quarrelled.

Q. What did they quarrel about?

Wrench. My master said he lost his money every day, and had not money to pay his distiller. I said, who should you look to for your money but Marshall; you trust him to take money for beer and liquors; (for my master never trusted me with the keys) and last Monday was three weeks Mr. Smith came to me, and said, I must right him, and clear myself; and if I did not appear as an evidence against the Prisoner, he would indict me next Sessions.

Alexander Cowan < no role > , (Constable) I found this cage in a little room at the Prisoner's father's; [this cage was claimed by Mr. Smith as his property.]

Prisoner. Did not the place appear to be fit for breeding birds?

Cowan. Yes, it was fit for that purpose; there were nets round the windows.

Prisoner. I believe Mr. Smith through his malice is capable of swearing any thing; and I do assure your Lordship, I am not guilty of the fact that is laid to my charge; and if your Lordship will give me leave, I shall bring such witnesses as will satisfy your Lordship that I am innocent.

James Pickersgill < no role > . I was employed about six weeks ago by Mr. Smith to take the Prisoner, and I took him by the Hermitage; he desired to go to a friend's house, I went with him, and in going along he made his escape from me, went over some pales, and got into an empty house, where there was only one inhabitant.

Q. I thought you said it was an empty house?

Pickersgill. There were some women came into the house and threatened to kill me, and one man with a carpenter's saw threatened to knock me down.

James Buck < no role > . I am subpoena'd both by the king and the Prisoner. The Prisoner indicted the Prosecutor for an assault, it was tried in the Sittings after last Trinity Term, and there was a verdict given for the Prisoner at the bar; I was with him in Old Palace Yard, and he appeared publicly with his witnesses, while he was carrying on the prosecution against Smith. The Prosecutor (Smith) had spoke several hard words against the Prisoner, and he was advised to get out at the window to avoid being abused, and he did go out at the window.

Mary Marshall < no role > . I am the Prisoner's mother-inlaw; a man came to me the 7th of March last with a search warrant to search for these birds, the birds had been at my house a year and an half, and Mr. Smith has been at our house twenty times since, and my son has sent for him to look at the birds when they were not well; (indeed he did keep from my house, because Mr. Smith threatened to arrest him for twenty pounds for board) he has taken the cages down twenty times, and looked at the birds.

Q. Did he ever complain of their being stolen?

Marshall. No, never.

Prosecutor. I would only ask in what manner the Prisoner has lived these three or four years last past?

Marshall. He has worked sometimes wit h his father who is a carpenter, and if he had not spent so much time with Mr. Smith, it would have been better for him.

Mrs. Rogers. Mr. Smith used to come frequently to the Prisoner's father's, and there were three or four cages hanging up, and he saw them; he came in a friendly manner.

Barbara Rogers I live at Lambeth. Last good Friday, Mr. Smith came to my house with a search-warrant, to look for birds and bird cages; he found one bird and two bird cages, which he said were his, and he said he would indict my son, for receiving stolen goods, and that he would prosecute, and persecute any body who dared to entertain the Prisoner, or take his part, even to death; and as for the old rogue his father, and the jade his mother-in-law, he had not done with them yet, as they should find; that he would make that villain [the Prisoner] run his Country, and if he got him in goal, he would take care to keep him there. Mr. Smith bid me not be frightened, for he did not intend to do me any harm; if I would produce the Prisoner; and make him give him a general release, which he knew was in my power to do: he said, Marshal had put him in the crown, and he was resolved to have his life for it, without he came to an agreement, and acquit him from the indictment; and he said he would be the ruin of me. He insisted upon my finding the birds out, and if I did not, he would swear they were stolen out of his house, and he would prosecute me. I believe the Prisoner to be a very honest man, and if I had not thought so, I would not have let him have been in my house. I am certain he has had opportunities, that would have been more advantageous to him, than these trisling affairs. He did keep out of the way, not on account of this indictment of Mr. Smith's, but only for fear of being arrested. Acquitted .

The court granted the Prisoner a copy of his indictment.