103, 104. + Patrick Bourke otherwise John Burke proceedingsdefend , and George Ellis proceedingsdefend , late of the parish of St. James's Westminster , were indicted for that they after the 1st day of May 1741, that is to say, on the 8th day of November last in the parish of Kensington , 15 ewe sheep, of the value of 11 l. the goods and chattles of John Messenger proceedingsvictim , feloniously and wilfully did kill with a felonious intent to steal part of the carcasses, to wit, the fat near the kidneys, against the form of the statute in that case made and provided and against his Majesty's peace, &c *.

* This prosecution was founded upon an Act of Parliament made in the 14th year of his Majesty's reign, for the security of farmers, &c. whereby it is enacted, that if any person or persons after the first day of May 1741. shall feloniously drive away or in any other manner feloniously steal any sheep, &c. or shall wilfully kill one or more sheep of any person or persons whatsoever with an intent to steal the whole or part of any of the carcasses, the person or persons so offending shall suffer death without benefit of clergy.

John Messenger < no role > . I am a farmer , I live near Kensington-Gravel-pits ; I lost 15 ewes, their throats were cut, their bellies ripped open, and the fat taken out. It was a very wet night, and the waters came down upon us that I could not go into the grounds that night, but the next night I found 15 ewes killed and there were 27 lambs upon the ground that were taken out of those ewes - they were killed either on the 7th of November at night, or on the 8th in the morning, we found them on the 9th, I was with the 2 prisoners at Sir Thomas Dever < no role > 's the Tuesday following, and they both confessed they killed my sheep.

Q. What was it you heard either of them say?

Messenger. Bourke said he went into the field, and he with his father killed the sheep [Ellis is Bourke's father-in-law] and he confessed that they sold the fat to one Samuel Chattle < no role > a tallow chandler in the Borough of Southwark for forty one shillings and two pence half peny - George Ellis did not say he killed them, but he said he was helping Bourke.

Richard Twysord < no role > . I am servant to Mr. Niccoll of Wilsden, I was the man who first found them: I think it was on a Friday morning the 9th of Nov. I found 21 sheep in the whole that were killed, I went and acquainted Mr. Messenger with it, there were 15 of them his and there were 27 lambs - I can't say I saw all of them, the sheep were ripped open and all the fat taken out, and the lambs were dragging by the sides of them some in and some out. The prisoners owned they had taken the gates out of our farm to pen the sheep up.

Messenger. Bourke owned he fetched 2 gates to make a pen at the corner of the field to pen the sheep up.

Q. Were your sheep marked?

Messenger. Some were marked I W, and some were marked I with a rose, I bought the sheep marked, I never mark any.

Joseph Agnew < no role > . I am a constable of St. James's, I was upon duty on Friday the 9th of November; George Ellis < no role > came and enquired for the constable of the night, I asked him what he wanted, he said there was a fellow in Tyburn Roard who had abused him very much and given him 2 black eyes; said I, is that all? it is a very great way to go upon such a trifling thing, and then he said he was a very great thief; I bid him come into the watch-house, and asked him wherein he was a thief; he said that on Wednesday night, the 7th of November that rainy night, he killed fourteen sheep in a field near Kensington Gravel-pits; said I, how can you prove this? he said, I can prove it, for I was concerned with him in doing it; but he said, I would have you who came of your self, for he has got a large and a very dangerous our, and he is a dangerous fellow. I took three watchmen, and got some people to assist me, and went into Tyburn Road, and took Bourke in bed; I turned the cloaths back, to see whether he had any knife in bed with him, but I could find none; I looked under the bed, and found the knife just under the bed by the bed side at my feet, 'us a clasp knife, it was open, and there was so me fat upon it, there is some upon it now, [the knife was produced, the blade is about four inches long]. I found this fat in a closet in the room, Ellis told me that this fat, which was found in the closet, was part of the fat that was taken out of those sheep. I brought him to the watch-house, and Ellis carried the lanthorn to the watch-house; I hand-cuffed Bourke behind his back, and locked him up; I let Ellis sit in the watch house, but gave a charge that he should not go out upon any account: he told me they had killed a great number of sheep, at different places, about the time they killed those at Kensington, - he said they went out the 7th of November between eight and nine at night: on the 10th of November, about a quarter after six in the morning, the watch went off their duty, and Ellis took an opportunity to get away: between eleven and twelve on Saturday morning, I carried Bourke before Sir Thomas Deveil < no role > , and he owned the killing the twenty one sheep at Kensington Gravel-pits, the Wednesday before; and on Saturday night, about ten o'clock, I took Bourke out of the same room and bed that I took Ellis out of, and he owned, before Sir Thomas Deveil < no role > , the killing twenty one sheep on Wednesday the 7th of November.

Q. Did he own the doing it, or the aiding and assisting in the doing it?

Agnew. He said I aided and assisted him in the doing it, and he owned they sold the fat, the Friday following, for forty one shillings and two pence half-peny.

Bourke. They kept us drunk all the time, to get us to confession: he gave me money to make me drunk.

Andrew. I never gave him any money.

Bourke. He gave me wine and punch, and made me drunk.

Agnew. I went to him on Sunday, and took a friend with me: we had a bowl of punch, and I asked him to drink of it; he said to me, I have no money for my lodging, I with, Sir, you would be so kind as to give me six pence, and I gave him six-pence, and that was all I gave him.

Bourke. You gave me eighteen-pence, and a share of two bottles of wine, and two bottles of beer; and you said there were two hundred pounds reward to say so and so to hang my father; and you said, if you impeach any man that will be the same.

Agnew. I did not say any thing of that upon my oath. I found this pair of dividers in Ellis's pocket - he is a whitesmith .

Mr. Brogden. Ellis was brought on the Saturday before Sir Thomas Deveil < no role > , and was committed for farther examination. Bourke signed his confession voluntarily, without any promises of favour, and Ellis said at the same time that he was concerned with Bourke in killing the twenty-one sheep.

Patrick Bourke < no role > , in his confession, taken Nov. 13, 1744. says, that in the night between Wednesday and Thursday, he, with Ellis and Conelly, killed about twenty-one sheep, the property of John Messenger < no role > , and Benjamin Banks < no role > the Elder, and took the fat, which he and his father sold to Samuel Chattle < no role > for about forty shillings: but as there was an account depending between Chattle and this examinant, they received no more than ten shillings and three-pence halfpeny apiece.

Thomas Niccoll < no role > . I saw the Prisoners before Sir Thomas Deveil < no role > , and they owned they killed twenty-one sheep on the Wednesday night; (it was a very wet night, and the field lies very low, joining to a field of mine) they said they did not carry the fat to the Tallow-chandler's that night, but they carried it four or five fields off, and hid it, and afterwards carried it to a man over-against the Blue Maid in Southwark, and sold it to him. Bourke said there was one Conelly concerned with them; and Ellis said, no, don't go to hurt any body, for you know there was no body there but you and I. I said to him, I don't want you to confess upon a promise of pardon, but only desire you to speak the truth. Guilty , Death .

+ They were also indicted for killing three weather sheep, value 30 s. and three ewe sheep, value 30 s. the goods of Benjamin Banks proceedingsvictim the elder, with intent to steal part of the carcasses, &c . November the 8th .

+ And also for killing ten ewe sheep, value 4 l. with the like intent , October the 27th .