38. JOHN DURHAM proceedingsdefend This name instance is in set 2660. and EDWARD CROWTHER proceedingsdefend were indicted for burglariously and feloniously breaking and entering the dwelling-house of John Fairlamb proceedingsvictim , about the hour of ten in the night, on the 6th day of November last, and burglariously stealing therein one pair of silver candlesticks, value 5 l. twelve table knives and forks, value 12 s. twelve desert knives and forks, value 12 s. two waistcoats, value 10 s. two pair of nankeen breeches, value 20 s. a silver scissars-sheath, value 2 s. one pair of cotton drawers, value 1 s. two cotton gowns, value 20 s. a silver thimble, value 1 s. his property; a black cloak, value 10 s. the property of Hannah Marlow proceedingsvictim .

JOHN FAIRLAMB < no role > sworn.

I live in New Palace-yard, Westminster ; on the 6th of November, between nine and ten o'clock, my maid gave the alarm that the house had been robbed, and all her cloths taken away; I went up stairs, the garret window was open; upon her bed I saw a knife-case; the knives and forks were taken away; there were twelve knives and forks, and the same number of desert knives and forks, and all the things mentioned in the indictment; I saw two waistcoats. two pair of nankeen breeches, and one pair of cotton drawers at Sir Sampson Wright's; I know no more; I am a captain in the artillery.

HANNAH MARLOW < no role > sworn.

I am servant to Mr. Fairlamb; on the 6th of November I went up stairs a little after nine; I missed a pair of silver candlesticks off the bureau; they were in the second floor; I lighted the fire, and I heard a noise up stairs; I went up stairs into the garret, and found the window open; I thought the noise arose from the window, but saw the knife-case upon the bed, and I came down and alarmed my master and mistress: the knives and forks were gone.

What things of your own did you miss? - Every thing mentioned in the indictment; I saw them at Sir Sampson Wright's.

FRANCIS FLEMING < no role > sworn.

I am a pawnbroker, and have been for ten years.

Mr. Garrow. How many people are now accused by you at this time? -

Mr. Garrow. My Lord, in an objection to the admission of the evidence of Fleming, I will take the liberty of observing that the law, in guarding the innocent, takes care that no man shall be put in peril on the testimony of a suspicious witness, though he may describe all the circumstances that belong to a robbery, he shall not be permitted to say A. B. or C. are partners in his guilt: what is the case of this man? I have not a record of his conviction; and it is only out of his own mouth that I can affect him by incompetency. Then what is the question I ask him - From how many persons now accused by you (confining it to a part, which he himself, by his own confession before a magistrate, has acknowledged); I ask him, from how many persons now accused by you, and against whom you are now received as a witness, have you been in the habit of receiving stolen goods? He has the indemnity of the magistrate, having admitted him as a witness, and he cannot now be prosecuted. My Lord, you have no testimony yet to confirm this man. I admit it is proved that there has been a robbery committed,but further you know not; there is not one single circumstance in the evidence that confirms this man, or that at all lets him in; he comes here as an accomplice, and upon what sort of (permit me to ask) tenure? Would any of the best men among us hold our lives, our liberties, or our properties, if such men as Mr. Fleming were to be received as witnesses against us, unconfirmed by more respectable testimony? My Lord, the law has been frequently laid down in the most luminous manner by your lordship; and also by other Judges, that such a witness should not be received against any man. My Lord, he is sent here, he does not come here; your Lordship will not now set a precedent for the first time; I therefore humbly hope, that Mr. Fleming, in the present case, however he may be received in others, in which he may have the good fortune to be confirmed, will be sent away, and his testimony rejected. I humbly hope your lordship will say, we run no risk in this case, in trusting to the baseness, the infamy, the falsity, or malicious testimony, of a man who confesses himself unworthy to live in society.

Court. My Lord Chief Baron Eyre < no role > makes it his common practice to receive the evidence of an accomplice, in the first instance; other Judges differ from him, and expect there should be ground laid before the evidence of the accomplice is received. I have always followed that mode; but this man does not appear to me in the light of an accomplice. If you examine him on the Voire Dire, you have nothing to do, but to ask him, if he is interested in the matter in question; if he appears to be interested, it is the custom to reject his testimony.

Mr. Garrow. I do not make him out an accomplice; my objection goes for nothing.

Court. But even with respect to that objection, this matter was referred to all the Judges; on the very first day of this term, Mr. Justice Buller tried a person for a felony, and he was convicted on the evidence of the accomplice only; he referred the case to the twelve Judges; and the ten Judges that were present were unanimously of opinion, that it only went to his credit, and not to his competency; and that he might be received.

Mr. Garrow. Undoubtedly it is in your Lordship's discretion, and it is to me perfectly indifferent, as sure I am no honest man will trust to such a witness.

Jury. By all means, let it come forwards.

FRANCIS FLEMING < no role > sworn.

I know the two prisoners; I have known them for many years; I am a pawnbroker.

Have they been in the habit of pledging goods with you? - No.

Was you ever in possession of any property that came through their hands? - Yes.

Now mention any particulars that are in this indictment only? - I will tell you, I believe it was about eight or nine weeks ago, the two prisoners at the bar, in company with one John Cuthbert < no role > , who is not in custody, came to my house, between eight and nine in the evening; they brought me a pair of silver candlesticks; I believe there were three letters and a cypher; however, I know there were two or three, and twenty-four green handled knives and forks, with silver or plated caps and ferrils; there were two waistcoats, two pair of nankeen breeches, and one pair of cotton drawers, two cotton gowns, one black cloak, a silver scissar's sheath, a wrought-work silver thimble, and an open worked toothpick-case that was made of silver wire; among these things there was some French wax beads in a small box, such as the ladies have to put trinkets in; there were several other odd trifling things that I took no account of; some I threw away, and the box I broke; they brought them to me to sell, and I purchased them; I believe the two cotton gowns, the black cloak, and the two waistcoats, the two pair of nankeenbreeches, and one pair of cotton drawers, the silver scissar's sheath, a silver toothpick-case and a silver thimble; those things which I mentioned last, I believe will be produced by the officers in Bow-street; some part of them I delivered up; the silver candlesticks, together with the knives and forks, I sold to one Jacobs, a Jew, for six pounds ten shillings; the silver sheath and the silver thimble I gave to one Mr. Keep; the toothpick-case I gave to his daughter; and the remainder of the other things, except what I told you I threw away, will be produced; I threw away the wax beads; I bought all these particulars of the two prisoners and Cuthbert; the officer Townshend has, in his possession, one part, and Macmanus the other part; I am admitted an evidence by Sir Sampson Wright; and perhaps I may be asked very unfair questions with respect to this prosecution, as well as the others; I shall submit myself to your Lordship, that you will not permit me to answer them.

Court. You most certainly are not to answer any question that will tend to accuse yourself.

PATRICK MACMANUS < no role > sworn.

I know nothing but only receiving the things from the person that Mr. Fleming directed me to.

JOHN TOWNSEND < no role > sworn.

I received two gowns and one cloak at Fleming's mother's; he went with us in a coach to his mother's, there he gave us all these things, with two pair of nankeen breeches which I had at Vandenberg's, which is in Fleet Market; and two waistcoats at the same house, from a person of the name of Keep; this cloak, and the remaining part of the things, I had from Fleming's mother; here is a dressing gown I had of Fleming's mother; I produce no articles of the plate, Jacobs is without, he has got some part of them.

Mr. Garrow. Is Fleming's mother here? - No; I believe not.

Is not Jacobs, the man you speak of, the Walking-Fence? - Why, I do not know, on my oath, that that was the name he goes by.

Is not he a common receiver of stolen goods? - Upon my word, I cannot say; I had the scissar's case from Keep; Keep is not here.

Court. He cannot accuse, by this side wind, the character of witnesses.

Prosecutor. The waistcoat is mine; H. G. is upon it.

Mr. Garrow. Then you do not know it much? - I have seen it often; it is my daughter's, Hariet Gosnell; I believe this scissar's case to be her's; and this dressing gown belongs to Miss Maria; I believe these nankeen-breeches to be mine; they have no particular mark; but I know the waistcoat particularly; I swear positively to the waistcoat being mine.

Court. Did you lose any waistcoats that night, of that sort, out of your house? - I did.

With the several other articles that you have already sworn to? - Yes.

Are these things that are now produced of the same species with those garments that you lost? - They are.

Townsend. Here is a gown and a cloak that belongs to the servant; I had them from Fleming's mother.

HANNAH MARLOW < no role > sworn.

This is my property; I have a piece to shew; there is no particular mark on the cloak, but I can swear it is my cloak; I lost a cloak and two gowns that night.

Mr. Peatt. You was directed by Fleming to get these things? - Yes; he had been before the magistrate, but he never said a word about these things then; he went with us, and broke open his mother's two doors; we could not get a key; she was not at home, and there he shewed us all this property, and a variety of others.

Macmanus. I produce a toothpick-case and a silver thimble from Vanderberg; Fleming said he had such things; I wentand asked for them, and they delivered them immediately.

Prosecutor. I believe these to be mine; but I cannot be positive; I know there were such things lost.

(Fleming ordered out of Court during Jacobs's Examination.)

- JACOBS sworn.

The candlesticks are sold; I was in possession of them; here are the knives and forks; there are a dozen of table, and a dozen of desert; I bought them of Francis Fleming < no role > , the pawnbroker; I gave him six pound ten shillings for them. (Shewn to the prosecutor.) I believe them to be mine; there is no private mark; I lost such articles that night; I have had them two or three years; they had not been used above two or three times.

Mr. Garrow. What may you be master Jacobs? - I have been brought up, since I have been fourteen years old, in buying of the pawnbrokers unredeemed goods; I bought them as such.

Do you mean to swear that? - Yes.

Upon your oath then they were represented to you by Fleming, the pawnbroker, as unredeemed goods? - Yes, they were; he did not tell me so; he told me he had a pair of candlesticks and some knives and forks; I bought them from a pawnbroker.

Is that true, that you bought them as unredeemed pledges? - To my knowledge I did.

Were they so represented to you by Fleming as unredeemed pledges? - Yes; by Fleming.

That you swear? - I do not swear.

Were they represented to you by Fleming as unredeemed pledges? - Yes; I bought them as unredeemed goods.

How long have you dealt with Mr. Fleming? - Never but this once; and I bought two watches before of him, that is all the dealings I have had with him since he has been in the shop for himself.

Have you ever dealt with him except for the articles you have mentioned to-night? - I dealt with him in his master's shop; once for a lot of jewellery; his master was Mr. Wright, in the Armory; them are the three occasions, and the only ones, that I ever dealt with him in my life; nobody christened the watches for me; I never had any christened; they did not go to Holland; the candlesticks I sold to one Mr. Davis, with some watches, who took them to Holland.

The reason was, because you knew them to be stolen, and was afraid to sell them in England? - I exposed these goods to the whole trade; the watches are here in London; I sold them to Mr. Dobree; they were not christened to my knowledge.

How came you not to sell these candlesticks? - They were all broke; some holes in the bottom.

Was the copper beat out? - No; I sold them for old silver; not to go to Holland; the man went to Holland.

How soon did you sell them to Mr. Davis; after you bought them of Fleming? - A fortnight after.

Will you swear that? - Yes.

Where did you keep them? - In my house in Adam's Court, Duke's Place.

Did you keep them till there was a complaint that there had been a robbery at Captain Fairlamb < no role > 's? - Yes; but I did not know that Captain Fairlamb < no role > was robbed of them.

Did you sell them till Fleming was in custody at Bow-street? - Yes; I sold them a week before; Fleming did not tell me he was about to be in custody.

And what day of the month did you sell them? - I believe it was the 2d of December; I bought them the 22d of November, on Thursday; I never kept any melting pot.

(Fleming called in.)

Mr. Garrow. You have told us you are a pawnbroker? - I am.

And an accomplice, as far as a man can be an accomplice, who has received stolen goods? -

Court. That is not a question that he ought to answer.

Mr. Garrow. My Lord, I am not asking him about any other act of receiving stolen goods, than that which is relevant to this indictment; I have the examination here, that in 28 different felonies he is a common receiver; I do say, that the Jury should know what sort of man he is, because at present there is no evidence but his to affect these prisoners.

Court. Whether he is an accomplice or not, has not appeared in evidence to me; you say he is; the Crown is not bound by any act of a Justice of peace; wherever a witness has come on the credit of the Justice, the general practice has been not to call on that party to be prosecutor; but in the case that I mentioned, though he was an accomplice, he was judged to be a competent witness to be examined; and after his examination, his credit to be left to the Jury.

Mr. Garrow. My Lord, I agree, that it is to the credit of this witness that I am to be permitted to examine him; but how can it be left to the Jury to say, upon their oaths, and to refer it to their consciences, whether a man is a fit man to be received as a witness, unless they have the premises before them; I do not ask him to accuse himself.

Mr. Garrow to Fleming. You said you stood in circumstances differing from most other witnesses, and hoped that his lordship would protect you from accusing yourself, being an accomplice? - I did not say I was an accomplice; I said I had been admitted as an evidence, on account of having received these articles which were produced.

How many persons are now in custody on information from you? - Only these two men and another, on this indictment.

How many are there? - There may be ten or eleven.

Do not you know, that on this very indictment there are five persons; that there is Cuthbert, that there is Keep and Vanderberg? - No, I do not know that their lives depend on it.

But you have charged two of them as receivers; how many persons have been accused by you of different crimes during the last month, to all of which you have been privy? - It is impossible for me to enumerate them all; I know of eleven in custody.

And how many out upon bail? - Two, Sir.

No more, Sir? - I do not know of any more.

How many have been accused by you? - There are eleven in custody; I do not come forward for the sake of the reward.

How many persons have been accused by you of different crimes during the last month? - More than eleven; but I cannot recollect how many in number more.

How many of those have been accused by you of capital offences, affecting their life? - Most likely all.

How many felonies have you given information of, in the course of the last month, in different parts of the town, which you have been privy to, and shared the plunder? - I apprehend they are all felonies, there are so many persons, you see.

How many felonies? - I have disclosed a great number more felonies.

Do you believe there are fewer than thirty? - I do not know rightly.

How long have you been in this course of trade? - It might be about five or six months ago; it appears that these goods have been stolen, and that I have received them.

Did not you know these things were stolen? - I can bring people to prove the propriety of my conduct, before I went into business; these men being in possession of these sort of goods, I could not suppose they came by them honestly.

Then, Sir, you knew that they were stolen? - Sir, I cannot say that I did not; I think, Mr. Garrow, you as well as the rest of the public, ought to be very much obliged to me for bringing those people forward.

Do not you know that Sir Sampson Wright has expressed his misery, that hecould not convict you, and execute you at Newgate? - No, Sir, I do not think he could.

PRISONER DURHAM's DEFENCE.

I know nothing of the robbery of any kind.

PRISONER CROWTHER's DEFENCE.

I know no further of Fleming than having pawned my clothes with him, which he has in custody now.

Mr. Garrow. I call no witnesses.

Court to Jury. Gentlemen, this case depends entirely on the credit of Fleming.

The Jury withdrew, and returned with a verdict

JOHN DURHAM, EDW. CROWTHER,

GUILTY , Death .

Tried by the first Middlesex Jury, before Mr. Baron PERRYN < no role > .

Mr. Garrow moved in arrest of judgment.

Mr. Recorder. The point was left by the learned Judge to the Jury; that the whole of this depends on the credit to be given to the witness Fleming; and no judgment in the course of this business, can be passed on these prisoners, before I shall have an opportunity of learning the opinion of the learned Judge; the sentence of the law will, of course, be pronounced on these prisoners, at the end of the sessions; unless the Judge who tried them, should desire it to be respited.

N. B. < no role > These two prisoners received judgment of death at the end of the sessions.