322, 323. THOMAS KELLY proceedingsdefend and ANDREW GRAY proceedingsdefend were indicted for that they in the king's highway, in and upon Jacob Rotherker proceedingsvictim , feloniously did make an assault, putting him in corporal fear and danger of his life, and stealing from his person a linen handkerchief, value 1 s. and ten shillings in monies, numbered, the property of the said Jacob , July 1st .

JACOB ROTHERKER < no role > sworn.

I live in Marshall street, Carnaby-market . On the 30th of June I was coming from Hays towards London, on foot, I think it as about eleven o'clock at night; two soldiers came up to me, it was light enough for me to discern their faces, I am sure the prisoners are the men, they were on the high road; I was on the foot path. One asked me first what it was o'clock. I said I thought it was near twelve o'clock. They both came to me; one took hold of my right shoulder, the other held a bayonet to my breast, and said, your money! I said I was a poor man, and had no more money than what I got that day in the country by playing on the harpsichord. I said I had got half a guinea. They then asked for my watch. I said I had none. Then they demanded the half guinea. I told them I had changed it into silver, and that I had but about ten shillings left; they again demanded the half guinea, thinking still that I had the half guinea in gold. I said I had changed it. They pulled my breechees quite down and searched for the half guinea. Then they took away my handkerchief and gave me a wound on my forehead with a bayonet. I asked for something to buy me a pot of beer upon the road upon which they struck me again with the bayonet, and said, if I made any noise they would run me through the body. It was Gray < no role > I think who struck me; however they gave me a shilling. One had his hand in one pocket, and the other in the other; they bid me go, and make no noise, or they would kill me. I came to St. George's-Row. I informed a coachman who was there, how I had been used. The coachman told me that he would take me up upon his coach, and carry me to London. In coming along we met two soldiers; I told them I had been robbed and ill-used; but I did not speak good English, and therefore they did not much mind what I said. I desired the coachman to tell them which he did. The soldiers said they would go in search of the men if I would go along with them, upon which I got down. We met the men and took them. I said immediately upon seeing them, these are the men who robbed me. They were searched afterwards, but not till the next morning; at that time there was only half a crown that I saw taken from them. The half crown was no part of my money, for that was all in shillings and sixpences.

From Gray. Whether you did not say at the guard-house that you did not know us?

Rotherker. I was asked about it, and there was a mistake; they misunderstood me, for I never said I did not know them; but when they asked me about it I said, God forbid that I should take away a man's life for the world, if I did not know him; from thence I believe they understood that I said I did not know them. But I am positive I did know them. It was not above a quarter of an hour from the time I was robbed to the time I saw them in the guard-room. We met the guards as I was on the coach-box, in Oxford road. I went back with the guards, and they were taken at the turnpike and carried to the guard-house.

JOHN DENT < no role > sworn.

I belong to the second troop of horse-guards; we were patrolling about twelve o'clock or ten minutes after; we met the prosecutor between Portman-street and Orchard-street, he was on a coach box; he spoke first but we took no notice of him; then the coachman spoke and told us the prosecutor had been robbed somewhere about Bayswater, between that and the turnpike, and had been used ill. I took notice of the man at that time, the blood was running down the side of his face. He said, he had been robbed by two soldiers, and that they had cut him with their bayonets; upon which I told him if he would go back with us we would seek for the men who had robbed him. He went back with us as far as the turnpike. and within a few yards of the turnpike, I saw the two prisoners come from under the wall. I left the prosecutor at the gate. I told the prisoners I would cut them down if they made any resistance for I had been informed they had robbed a man; my comrade and I dismounted; one of the prisoners had a naked bayonet in his; the prosecutor immediately said, You be the men. Upon which the prisoners said, Would you take such a blackguard's word, we shall be punished for what he has said; and he said something about a hundred or two hundred lashes. I told them it was our duty, if we did not do it we should be liable to be tried by a court-martial; we took them immediately to the guard-house. I saw fresh blood upon both the prisoners; one of the men that was by tried it and found it was; it was on the coat, on the hand, and on the belt of the bayonet, both the men had bayonets drawn; but I took particular notice only of the man that I took; I am sure he had one drawn. They belong to the 18th regiment; and they were in camp at that time in Hyde-park. I felt down the prisoners a little when I first took them, but did not search them. They were searched the next day, but I believe no money was taken from them; one of them pulled out a half-crown, a shilling, and a sixpence; they had had frequent opportunities of going out and had gone out to the necessary, after they were in custody.

NATHANIEL LAYCOCK < no role > sworn.

I was with Dent; between Portman and Orchard-street a coach overtook us; the coachman said, that the prosecutor, who was on the box, had been robbed and ill used. We desired the prosecutor to turn back with us; he went with us all the way. We found the prisoners twenty or thirty yards beyond the turnpike. I heard the prisoner say, they hoped we would not take that rascal's word before their's; for they said, they should be whipped if we did. We said, it was our duty to take them; we took them to the Guardroom. The prosecutor said, He would swear to them. I did not stay long in the Guardroom; but I saw blood on them, it was on the hand and the cuff of the coat; I took particular notice of one of them; the money was taken out of their pockets the next morning, but I cannot say whether it was taken out by any body else, or whether they themselves delivered the money.

EDWARD BABINGTON < no role > sworn.

I was one who met the coach; the prosecutor and the coachman both told us that the man had been robbed and ill used. Hope and Dent were before; they had secured one of the men a little before I came up with them near the turnpike, and the prosecutor was with them; the prosecutor said, They were the men. They said, they hoped we would not take the word of such a blackguard and scoundrel as he was. I told them it was our duty to take them. They said, they should receive a hundred or two hundred lashes. I did not stay long; I had the care of the horses; I went away.

THOMAS HOPE < no role > sworn.

I am the comrade of Dent; we met the coach in Oxford-road, near North Audley-street. The coachman told us the man on the box had been robbed and ill used. We went after them and soon came up with them; we stopped them; I took care of one my comrade took care of the other; the prosecutor immediately said They are the men I will take my oath of it.

GRAY's DEFENCE.

I am as innocent of it as a child unborn. This lad and I, in jumping over the wall, came upon these gentlemen coming the rounds. I said here are some of our officers; as he jumped over the wall his bayonet fell out, which he had in his hand. These gentlemen swear that the bayonets were drawn; there was only that bayonet drawn, which fell out. They stopped us. We said, what was this for? This man came up and said, you be the two men. I said he must be a rascal to say we were the two men which robbed him, for we were just come over the wall. These two men said it was their duty to take us to the guardhouse. I said you know the case as well as I do, I have left the camp and was going over the wall after a woman, as many poor fellows do to be sure. They said it was their duty and they would take us; we went without any resistance; we have witnesses that we were in the camp when the clock struck twelve.

KELLY's DEFENCE.

On Friday morning we went in to exercise, about seven o'clock my nose bled; I was turned out of the ranks, I could exercise no more. The serjeant that turned me out of the ranks is here; it was the blood that dropped out of my nose that was on that belt; it dropped on my waistcoat and breeches.

To Dent. What time was this? - It might be about ten minutes past twelve o'clock, it was not more than a quarter after twelve at the time we took them.

For the prisoner.

Serjeant HYDE sworn.

The prisoners belonged to my company. I have known Gray three years. The other is but a recruit; he joined the company on the sixth of February last. They have borne a very good character for doing their duty as soldiers; I remember Kelly was turned out of the ranks last Friday by our adjutant and serjeant-major for his nose bleeding, that was at morning exercise, between six and seven o'clock; he was not able to stand on account of the bleeding of his nose, which stained his belt. They were absent at night when I called the roll, which was at half after nine o'clock.

TERANCE MACUSTA < no role > sworn.

Gray and I came into the regiment together, which will be four years ago the 8th of next month. He did his duty well in his regiment. The other prisoner joined us in winter quarters; he has behaved like any other soldier. I saw them between six and seven o'clock that night; I was at home again in my tent after the roll had been called over. I went into the rear of the Queen's Regiment, which is just by the rails which go to St. George's Row, that was about eleven o'clock. We stopt there along with a girl till I heard the clock strike twelve, then the sentry were called out to the relief. We were afraid of the piquet round coming upon us. I wanted to get home to my tent. They said they would get to town to a bawdy-house they knew, and wanted me to get over the wall with them. I said I would not. They went immediately to go over the wall; I came home to my tent, left the piquet-guard should take me up. I was there when the muster was called over, that was between nine and ten o'clock, I believe.

WILLIAM JOHNSTON < no role > sworn.

I belong to the same company; I have known Gray from a boy; I never knew any thing bad of him.

Did you know any thing of this Friday night? - Yes; I was at home in my tent when the rolls were called; they were then absent. We went out and met them a little after eleven o'clock, in the rear of the Queen's Regiment; that was after eleven o'clock; there we remained with them along with a girl till we heard the clock strike twelve, till the relief of the Queen's Regiment. I desired him to come to his own regiment for fear he should be taken up by the picket rounds, because if they find any man out of their own lines, they take them to the guard-house. In two minutes after we parted with them, and they went over the wall. The prisoner's nose bled upon his belt. I have a handkerchief but it has been washed since, which I kept upon his nose to stop the bleeding. He is very subject to bleed at the nose.

To Dent. When was you first told of this robbery? - Between ten minutes and a quarter after twelve. We stopped about two or three minutes at the gate, and then carried them along; we did not trot, we walked along; we might stop three or four minutes when we dismounted.

You said the blood was fresh upon them? - Yes. A man spunged it off. There was blood upon both of them, both on the waistcoat and coat, and the cuff of the coat.

To Haycock. What do you say to that? - I saw blood upon one; I was not in the room, but at the door, with the horse in my hand.

To Babington. What do you say to that? - I was never in the room; Hope said he saw blood upon them both. One man tried it with his thumb, and it appeared quite fresh. It is about two hundred yards from the Queen's Regiment, to the place where the information was given of the robbery having been committed.

Jury to Hyde. Do you know any other soldier besides the prisoners who did not answer at the call-over of the roll? - There was no other of our company absent. But whether the roll of any other company was called over or not I cannot tell

BOTH GUILTY ( Death .)

Tried by the Second Middlesex Jury before Mr. Justice NARES.