261. FREDERICK WILLIAM EALIAS proceedingsdefend , was indicted for feloniously stealing on the 27th of March last, one leather cloak bag, value 2 s. two horse rugs value 4 s. one pair of cotton velvet breeches, value 20 s. twenty four case knives with ivory handles, value 8 s. twenty four case forks with ivory handles, value 4 s. one silver table spoon, value 10 s. two teaspoons, value 3 s. the goods of Thomas Newnham proceedingsvictim , Esq ;

THOMAS NEWNHAM < no role > , Esq; sworn.

I live in Hatton-street , the prisoner was my second footman , I cannot say I missed any thing, only as my servants informed me, on the 27th of March: The prisoner came to live with me about the 6th or 7th of December, in consequence of a very good character, and upon my servant's informing me, that I should find many things missing, particularly two horse-rugs, and a pair of new Manchester breeches, (I had given new liveries just before,) I went into the stable and bade the prisoner put the horse rugs on; he seemed much confused, and asked the coachman were they were; then he said, he was going to fetch them; says I, you shall not go out, for I will know what is become of them, I desired him to come into the parlour, and taxed him with it; he said it was poverty, and that his wife was in distress, and that he had taken them home to cover her; I told him poverty I pitied, roguery I detested; however, that there were a number of other things, I must enquire about, he said he had pawned his breeches, there were some knives and forks, some silver spoons, he said, he had taken three of them, and pawned them, one gravy spoon two tea spoons, and pawned three more of them, but when I was going down in the country two days before, that I might have them tea spoons to breakfast, he had taken them; he told me where they were pawned, and some of the pawnbrokers are here.

Prisoner. My Lord, as I have no council nor attorney, my circumstances not permitting me to employ any, I would wish to ask Mr. Newnham whether he had missed any thing in his house, excepting the two horse rugs? - I have just said, that I missed nothing till my servants told me.

Court. I fancy what he wants to know is, how you came to know it.

Prisoner. Had you missed any spoons, Sir, before I told you they were pawned? - No, I had not.

Prisoner. I should be glad to know, what Mr. Newnham means by several other things, that were found at my lodgings.

Court. He cannot properly answer that, the constable and servant that went to search your lodgings will answer it.

JOHN NORMAN < no role > sworn.

I am footman to Mr. Newnham, I went with the constable, and found the things at the pawnbrokers.

Did you find any thing at the prisoner's lodgings? - Yes, my Lord.

Where were his lodgings? - In Wine-street, just at the top of Hatton-street.

Who did you find in the lodgings? - His wife was just coming down stairs as we went in.

What part of the house did his wife lodge in? - I believe it was one pair of stairs.

How do you know it was his room, or his wife's room? - The wife went back with us into the room.

What did you find? - I found two horse cloths, and a little portmanteau; there were a dozen knives and forks in the room.

Do you know any thing of these things being missed from the house? - Not from the country house, my Lord.

But from the town house? - I suspected there were some things missing, there were a dozen knives and forks, my Lord, missing, there was no particular mark on them.

THOMAS HOTCHKINS < no role > sworn.

I am a constable, I went up into the prisoner's apartments with his wife, we met her at the door, she was going to the prisoner, he sent for her; she shewed us up stairs, and the footman saw the horse cloths, says he, them are our horse cloths; then she took them off the bed, and gave them to him; and I asked her, have not you some knives and forks, yes she said, then she went to a little closet by the fire side, and brought some knives and forks, and gave them to the footman; likewise the footman said, that is my master's portmanteau, she said it was.

Court to Norman. Do you know the portmanteau, and the knives and forks? - They are very much like my master's.

Mr. Newnham. The portmanteau is mine, and the other things are exactly like the things I have got.

SAMUEL LOWE < no role > sworn.

I am a pawnbroker in Baldwin's-gardens, I have twelve knives and forks, a pair of breeches, a table spoon, and a tea-spoon, I took them of the prisoner; the tea spoon the 18th of January, the twelve knives and forks the 18th of February, the table spoon, the 19th of March, and the breeches, the 21st, in the name of William Smith < no role > , (The things deposed to by Mr. Newnham) the great spoon has my crest on it, the tea spoon has the letter N I can likewise, swear to that; the other things are exactly the same pattern as these that I have, the breeches are the same that I give to my servants, my servant has the exact fellow pair on, but the taylor is here that made them.

JOHN EDWARDS < no role > sworn.

I am apprentice to Mr. Coates the corner of Dove-court-lane; I have one silver tea spoon, I am not positive whether I took it of the prisoner or his wife, it was pledged in the prisoner, wife's name, on the 22d of January, there is the letter N upon it.

The spoon deposed to by Mr. Newnham.

THOMAS JONES < no role > sworn.

I am a taylor, I made these breeches for Thomas Newnham < no role > Esq;

Court to Prisoner. Now, Sir, this is the time for you to make your defence.

Prisoner. Does pawning the property with intention to steal it, or to replace it again lessen the crime, my Lord, if the intention is proved.

Court to Prisoner. How far, it may mitigate the complection of the offence, so as to make you the subject of mercy or not, is one thing; but the question is, whether the replacing it will reduce it from a felony, to a misdemeanor of any other kind, and I say no; it is felony for a servant to pawn his master's property without his consent; I am not bound to give you his answer, at this time, but as you have put the question, I do it.

PRISONER's DEFENCE.

When I went to hire myself as a servant to Mr. Newnham, which was about the 6th or 7th of Dec. he said, I should have so much per year, and a livery, and that, as it would be some time before his other servants came, I should wear my own cloaths till then; and he would allow me something for wearing them; and as I was to go out with the carriage with my lady; he expected me to go very genteel; I told him I had sufficient cloathing, to appear as genteel as any gentleman in the city; I served him near three months before I had my livery, in the course of that time Mr. Newnham and his Lady, had frequently complained, that they were ashamed to go out with me, because I could not keep myself clean enough; I had things in pawn, which I wanted to redeem, as soon as I could get money; and I pawned these things to redeem those: I acknowledge the pawning of them: My master gave me orders to buy a sack of oats, and desired me to pay for it, I was loath to expose my poverty to my master, and those things, which were given under my care, under my own lock and key by his desire, and which, if I had lost any, I must have been answerable for them, I pawned: I put in one of his table spoons, to pay for the sack of oats, he shortly after paid me for those oats; then I got it out again; and I found my livery did not come so soon as I could have wished, and as I had put them in and got them out again to pay his expences, I thought I could do them again for myself; when the quarter was due, there was about three pounds due to me then, and with what money I had in my pocket, I could have redeemed them, I was very urgent for the money, he said he would pay me the next morning, but he did not; he was generally very busy in the morning, and if he was troubled by a servant carrying in a message, he used to be in a passion; and I did not like to trouble him; he paid me I believe about three weeks after my quarter was due; he gave me two guineas, in part of my quarter's wages; at the time the horse cloths were missing, he asked me for them, I told him, I believed they were in the manger, and I pretended to look about for them; but knowing they were not there, he called me into the parlour, and said, William you know where they are, and if you will not get them, I will charge a constable with you directly; I told him I had a wife and a child at home, and had taken an unfurnished lodging, and that they were at home; I told him that a friend had lent me some things; and he asked me before the constable, if there was any thing else pawned; he said, he had missed a pair of shoes, but he saw they were brought back again, I told him they were pawned the corner of Dove-court, them I fetched home as soon as he paid me my wages; these dozen of white handled knives and forks, were pawned at Mr. Jarvis's, in Fetter-lane, I was going out with my master behind the carriage, before I went out in the morning, I gave my wife a pair of silk stockings, which I had bought to pawn, and says I, fetch that dozen of white handle knives and forks, and when I return I will replace them, two days before I had redeemed four tea spoons from the corner of Dove-court, and carried them home in the country, and there left them; this portmanteau he desired me to lapsup a couple of young pigs, and bring them to town, one I was to leave at my master's, and it is a portmanteau that I generally buckle behind my saddle; I had two or three pair of shoes, stockings, &c. I brought th em from the country; and carried them, and the pigs, all the things in this portmantua, left it at my lodgings, with the things in it; and not with intent to steal it: And was he to speak like a gentleman, he would signify to your Lordship, that he does not believe, I meant to defraud him of any of the things; he promised me before the constable, that provided I should make him an open confession, and he promised the constable, which I doubt not will not deviate from the truth, that he should not hurt me, if he got his things again; he said, he would sooner prosecute the pawnbroker, than he would me, and it is well known, my Lord, by the pawnbroker, that I had put these things in at different times, as I was necessitated for money for his use; and he did not pay me my bills weekly, sometimes it was longer; I have a wife near her time of laying in, and four small children besides, destitute of every thing in the world; another thing I wish to represent, Mr. Lowe, when I offered the knives and forks, he asked me to sell them, I said, no; if I had meant to defraud my master, I certainly should make the most of them; I pawned nothing, but what was under my own care, if I had a mind to have robbed him, I could have robbed him of seventy or eighty hundred pounds worth of plate; I am now at the mercy of your Lordship, and I hope your Lordship, and the Prosecutor, and the Jury, will prove merciful to me. I have not one witness here, I was informed in Newgate by Mr. Pitt, that I should be tried by the London Jury, and there was not one of the trials before the London Jury, was to come, till such times as the country was finished, and Mr. Pitt, the turnkey, told me this morning, I should not be tried to day.

Court. If that was the case, and if you really could have had witnesses, why did not you when you came up now, state it to the Court, and desire to have your trial put off.

Court to Mr. Newnham. He has stated it as a fact, that before he had made any confession to you, you promised him you would not prosecute him? - I deny that, all that I said to him was, from the time, I took him in the stable, till the constable took him with me to Mr. Justice Blackborow, I said to him, William, I will not lose sight of you, I will have all my things, and when he went down on his knees, and made use of horrid words, such as wishing, that God Almighty would never receive him into his favor, if he had taken any thing of mine, I said, I would know; he then said, he had pawned them. I believe I had bespoke some oats, which were not come in; I did send him to buy a sack of oats, I paid him the next day, but I constantly paid him every Wednesday, when he came to me, he appeared to be very poor, and upon his coming to me, I gave him a couple of guineas, and when he asked me for his wages, I gave him a couple of guineas.

Prisoner to Mr. Newnham. Did you give me a couple of guineas at first, it was only one guinea, and that was to lay out for cards.

Mr. Newnham. Here is the prisoner's receipt.

The prisoner's receipt produced for four guineas.

Prisoner to the Constable. Did not you hear Mr. Newnham promise to forgive me, if I would tell where the things were? - The thing was asked by the prisoner, but as to Mr. Newnham ever speaking a word that he would do such a thing, I do not recollect it, and I was in the room all the while.

Prisoner to the Council. Did not Mr. Newnham promise before you, that he would not hurt me, provided I would tell? - I say no.

Do not you recollect when we were coming from Clerkenwell Bridewell, one of the constables asked you if Mr. Newnham had shewn me any favour; did not you acknowledge in the coach that you heard him say, that he would not hurt me, or prosecute me if he could any ways help it, and upon my telling him the truth; and did not you say, that you did not believe Mr. Newnham would hurt me? - I did say that I did believe Mr. Newnham would not hurt you if you told the truth.

Prisoner. Ah! Mr. Hotchkins. My Lord, I am entirely at your mercy, and the mercy of the Court, my life is sworn away in a malicious mannner, and I submit myself to my fate; God knows in my conscience I am clear of ever having any intent of robbing my master, had I had a mind to have done it, I could have done it frequently: I am ready to submit to my fate, if it was to go to be hanged, but it is my duty to beg for my poor disconsolate wife and family; if I must be banished my country, I must; but I humbly beg of your Lordship to inflict any imprisonment upon me, even during the remainder of my life, so that I might but see my wife and children, and I should be for ever bound to pray for your Lordship.

Court to Jury. You perceive, Gentlemen, by this indictment not being laid capitally, there could be no intentions against this man's life, however the strictness of publick justice, and the nature of the offence, which is, that of a servant robbing his master, might have called for a capital prosecution: A servant pledging his master's property without his consent, without any regard whether he had any intention in his mind to reinstate them at a future time, I cannot hesitate to state to you as a felonious taking; if it was not so, no man who has servants would be safe in his property; every servant that pawned his master's property might assert, that he he had such a mental reservation. The prisoner has told you a long story, the amount of it is the acknowledging the pledging these things, but endeavouring to give some colour for the pledging; not at all meaning as he asserts, to wrong his master in the end; whether his manner of telling his story was calculated to make a favourable impression or not, is a question not material for me to state to you; but the effect of it is, that his defence amounts to a confession, because it is confessing the having pledged his master's property without his consent: The prisoner has said a great deal of the circumstance of being surprized with regard to his trial coming on; whether he could have had any witnesses to his character, I do not know, but no man in this place is pressed or hurried to his trial, where there is a hope that a little delay will be of any service to him; and the prisoner might have had the same indulgence, if he had mentioned it in time, that prisoners have, and will continue to have whilst the law continues to be administered in this place: the case is therefore, to be taken upon the facts, and upon the facts I do not find a question, on which there can arise a matter of doubt; the matter of fact is, the prisoner has whilst in his master's service, without his master's knowledge or consent, taken his master's property out of the house, and also had part of his master's effects in his possession; there is one single article, that he has given a reasonable account for, which would, I dare say, have been received by you, and that is in the case of the portmanteau, but there are other articles, to which no answer has been given, and therefore, there is sufficient evidence of a felonious taking, which amounts to a proof of this indictment.

GUILTY .

Prisoner. My Lord, I would wish as a favor, that your Lordship will pronounce sentence upon me now at the bar.

Court. Sir, you have no pretensions to extraordinary favor; I do not think your case nor your manner of conducting yourself at the bar, nor your manner of talking of your master, entitles you to any favor. - Withdraw your prisoner. - (The prisoner taken away, but called back by order of the Court.)

Court to Prisoner. Sir, you have alledged, that you were surprized by being tried now; expecting to be tried in London; now there is I understand another indictment against you in London, and therefore, if you think it will be of any use to you, and will give you any opportunity of representing your character and conduct in a favorable light, that you should be tried on that second indictment, the Court will go out of its usual course, by trying you a second time.

Prisoner. My Lord, I thought the things I have been tried for now, were from the country house.

Court. Sir, you have nothing to do, but to answer the question; do you desire to have an opportunity of being tried on that second indictment.

Prisoner. What is it an indictment from Mr. Newnham.

Court. Yes, Sir.

Prisoner. I do not understand the meaning, of your Lordship's question.

Court. Sir, the meaning is this, you complained that you was surprized, that you had not an opportunity of bringing your friends here to speak for you; I now tell you, I will give you an opportunity of bringing your friends here to speak for you, if you wish to be tried on that second indictment, it might alter perhaps, the sentence of the Court, with respect to the degree of punishment you deserve: Do you desire to be tried on the other indictment.

Prisoner. My Lord, I really am surprized in respect to the other things.

Court. Take him from the bar.

Transportation for seven years .

Tried by the second Middlesex Jury before Mr. BARON EYRE < no role > .