56. JOHN DURHAM proceedingsdefend This name instance is in set 2660. was indicted, for that he, on the 15th day of November last, did break, and enter the dwelling house of Henry Pincutt proceedingsvictim , Esq ; and burglariously stealing therein, a scarlet coat, value 30 s. three silk waistcoats, value 20 s. two cotton counterpaines, value 30 s. a pillow-case, value 6 d. a dimity bed gown, value 6 d. a dimity gown and coat, value 20 s. one cotton gown and coat, value 30 s. a pair of stays, value 5 s. his property.

Court. The part of the indictment which charges this prisoner with a burglary is defective, there being no hour mentioned; the only question that remains to be considered is, whether the indictment, notwithstanding that defect, may not be considered as a good indictment for stealing in the dwelling house, to the amount of 40 s.

Mr. Peatt, prisoner's counsel. I shall leave it to your Lordship, whether that defect is fatal to the whole indictment.

Court. My present opinion is, that there is enough in this indictment to charge him, with stealing to the amount of 40 s. but clearly, not with the burglary.

CHARLOTTE PINCUTT < no role > sworn.

I was not in town at the time; I only speak to the property; I only know that the things were lost; I am wife to Mr. Pincutt.

JANE M'KENZIE sworn.

I am servant to Mr. Pincutt; he lives in Craven-street, in the Strand; I know nothing at all of the robbery; I went out at seven o'clock that evening; I left the street door shut, and all the windows shut; when I returned, I found the street door open; I went up to the one pair of stairs, and found the beds stripped of the sheets and the pillow case; and on the secondpair of stairs, I found a box open, and a towel dropped on the floor.

JOHN TOWNSEND < no role > sworn.

I know nothing at all of the robbery; on Sunday, the 2d of December, Fleming, the Pawnbroker, took me and some more of our people, to his mother's house, there I found part of this property, and some more of it I found at Mr. Keep's and Mr. Vanderberg's; they are not in custody.

PATRICK MACMANUS < no role > sworn.

I only found the things at Fleming's mother's by his direction; Fleming, Townsend, me, and Carpmeal went all together in a coach; she was not at home, when we got in the house; we got in at the street door, and Fleming desired me to break open two different doors, which I did, and there we found the things, according to his directions.

In what capacity does Fleming come? - As an evidence, he was brought to Bow-street on the Sunday morning, by Jealous, Townsend and me; and he made a confession of all the things that he knew.

Is he admitted an evidence against Durham, as an accomplice? - No, as a receiver, buying them as receivers do, in general, from the people that steal them.

How did you find these goods? - By Fleming's information; when Sir Sampson Wright talked to him, he said, this was a part of such a robbery, in such a place, and part at such a place, and part at such a place.

Was he at the time accused of this particular robbery? - No, not of this, nor of any other that I know of; but of some things that are to come before your Lordship another time: when Sir Sampson Wright told him, he would admit him an evidence if he would make a clear confession of all the things he had bought at different times.

Then he was not under charge for this particular fact? - No.

Then before he gave that information, he was not accused of this robbery, nor of receiving those goods? - It was not known, to my knowledge, till the time he gave information of it himself, and several more as well as this.

What was Fleming apprehended for? - He was apprehended for receiving stolen goods; Mr. Jealous, and two or three more of our people, went to a house somewhere near where he lived, and there was a quantity of things; and the woman said they belonged to Mr. Fleming, the next day Jealous, Townsend, and I went down to Fleming's and took him into custody; says he, what is this for? says he, I know what it is for; it is for such things that were found at Mrs. Burkett's last night, yes it is; says he, very well, I expected you to come; I could have been out of the way, but I staid in the way on purpose; when he was brought to the office he offered to make a discovery, Sir Sampson Wright would not take it from him at all then; he desired him to recollect what he could then, and he would give him time till Monday; on Monday he came up, and had wrote down several things; and he said, I have still more robberies; Sir Sampson Wright said, let me get through these you have told us already, and write down what you have more to discover; and if there is any part you dislike, when you have wrote it down, contradict it.

Jury. Was you present when all this conversation passed at Sir Sampson Wright's? - Yes.

Court. Then all that he knew of this business was discovered in consequence of this? - I believe so.

Had not Fleming an assurance of safety or protection in proportion to the discoveries he should make? - Yes, I believe so; Sir Sampson told him, that if he told every thing that he knew from the first of his connection to the present time, he should be at liberty to deliver it, and be safe; and if he kept back any one thing he must expect no favour.

In consequence of this, among other things, he told you where these goods were? - Yes.

Did he go with you when you found them? - Yes; my Lord, but they had been moved from where he told us to another place, which was his mother's; he said they were at his sister's, we did not find them there; when we went to his sister's, the husband of the sister was in bed, he got up.

Is he here? - I do not know; I should think not; we found the things at his mother's; Fleming went with us to his mother's, she was then gone to Fleming's; the inside doors were fast; he strove to open them, and he could not; so I kicked the doors open.

You know nothing of these things, or any thing of the prisoner's connection with this robbery, but what he told you? - No.

Did Fleming tell you how he came by the knowledge of these things? - Yes; he said he had bought them from the different prisoners that were in custody; sometimes one, sometimes two, as much as I know; when he bought them of people that were present, he mentioned their names; and when it was said where was this done? he said, at such a place.

He admitted there, that at the time they were bought by him he knew they were stolen? - Yes.

Did he say whether he knew any thing of this robbery before it was committed, or whether he had any hand in the robbery itself? - No; and I remember very well Sir Sampson asked him whether he had been with these people doing any thing? and he said no.

Court. It does not appear to me, Mr. Peatt, that win this case, Fleming stands precisely in the light of an accomplice; he stands, at present, in the light of an accessary after the fact, but not as an accomplice in the fact; therefore, I do not well see how I can avoid examining him, and hearing what he has to say; it goes very strongly to his credit; but I doubt very much, whether he stands in the situation of an accomplice; my idea of an accomplice is a person that confesses himself guilty of the very fact the prisoner is accused of; now this man does not stand charged by his own confession, or otherwise, but of one crime, which is a crime greatly affecting his credit; it is the crime of receiving these goods after the fact committed, knowing them to be stolen; and there is no doubt; but the Court and Jury ought to receive the evidence of such a witness with great caution; but I doubt, whether there is any principle of law, that I can decline examining him upon; if he appears on the evidence, to be an accomplice in the same fact with which the prisoner is charged, and admitted as an evidence, as an accomplice, there being no other evidence to affect the prisoner, I certainly would not call him, nor permit him to be examined.

Mr. Peatt. I trust your Lordship will not receive his evidence; in the former trial he was heard and considered in that light, and the confessions he has made, has been in consequence of promises, and there being no other evidence, I trust you will not receive him, because, he stands precisely, in point of credit, in the same light as an accomplice.

Mr. Silvester. He is not an accomplice, nor is there any objection to his competency.

(Call Francis Fleming < no role > .)

FRANCIS FLEMING < no role > sworn.

I shall say nothing but the truth although I have been in court.

Court. I hope you will not; you took the officers to the place where the goods that have been produced were found? - I did.

How did you come by the knowledge you have of this matter? - One William Smith < no role > came into my house, that is not the prisoner.

Court. Then you must not tell us what you heard from other people? - One William Smith < no role > brought part of this property to me some time last month; it might be about the middle of November.

What do you call the middle? - The fourteenth or fifteenth.

Where did you get the remainder of these things? - Of the prisoner John Durham; about four or five minutes after Smith came in, Durham brought in a bundle also, then I opened both the bundles.

Was Smith there when Durham came? - He was.

What did Durham say? - He said there were some things, and desired me to look at them to buy them; there was one Keep and Vanderberg in my house at the same time; not in the same part of the house; I looked at them and bought them.

What did you pay for them? - I am not sure, as I told Sir Sampson Wright, whether it was four guineas, or whether it was four pounds ten for the whole that they both brought.

Who did you pay the money to? - I laid it on the counter, and Durham took it up.

Did Durham take up the money for the whole, or only for the things in his bundle? - They were sold all together, and Durham took up the money for the whole.

Can you recollect what day of the week this was? - I believe it was on Thursday night.

What time of the night? - It might be about eight o'clock.

Did you make any enquiry how these things had been come by? - No.

Then it was immaterial to you? - I knew the men before; and I had bought things of them before.

Did you conceive these things, at the time you bought them, to be honestly come by or not? - I really thought they were stolen.

You thought so then? - Yes; Sir Sampson Wright told me the consequence if I did not tell the whole truth, therefore I do.

Did Durham say any thing how they were come by? - No.

How did these things get to your mother? - I sent them to my sister first.

Did you put any mark on these things, from any other things that you bought? - No; when I sent these things first to my sister, I do not think there were any things there.

But how do you know these things to be the same things that were brought to you by Smith and the prisoner? - Because there was one gown and coat that I bought with the rest of the things that I kept at home; that gown and coat I delivered, on the 3d of December, to Macmanus and Townsend; that was a part of the property.

Do you recollect whether that gown and coat was in Smith's parcel, or in the prisoner's parcel? - I cannot recollect that; I know this corded dimity bed-gown; the gores or gussets are not of the same sort; I had sold the bed-gown, and a person told me of it afterwards, I did not examine it at the time.

Then you have only the word of the person you sold it to? - That is all, in that case; I know this scarlet coat; when it was brought to me, the buttons were all covered with paper, and some of them are now covered; this is the same coat, as far as the best of my knowledge will go; it is a remarkable coat lapelled, which is not as they make them now; it was in one of the two parcels, I do not know which; here is a remarkable gown and coat; this I sent to my sister, and I brought it away myself, and I sold it to Mrs. Cox, and I saw her make her mark; she expects to lay in every day.

Court. You must put that out of the case? - Here are two pair of sattin breeches, and a tissue waistcoat; I cannot speak positively to those I have sold; there are no other things that I wish to swear to; this gown and coat, this scarlet coat I can positively swear to.

Mr. Peatt. It is scarcely possible, I think, that more light can be thrown on your character, than has been already.

Court. As to character, you need not give yourself any trouble.

Mr. Peatt. You have not been very strict, I suppose, at any time, in asking questions of the persons that came to pledge?- I have received things since I have been in business; most likely in the same way I have received these; I gave a full account of every thing I knew.

If you had had them things in your possession which were liable to be called in question, do not you suppose yourself to be in danger, if they were not ascribed to some particular person? - Yes, Sir, I comprehend that these things that were found in my house, if I had been unable to account for them, I should certainly think myself in danger.

Jane < no role > M'Kenzie. I went out about seven, to the best of my knowledge, I was at home before eight.

Court to Mrs. Pincutt. Look particularly at the coat, and the gown and coat? - I have a bit of the gown and coat in my pocket; I know it perfectly well; I only know it from the pattern, and having long sleeves.

Do you know any thing particular in the make of it? - Only that it had long sleeves, and a tucker in it; not more than that (The piece handed to the Court.) I know the scarlet coat to be ours, by the buttons being covered; Mr. Pincutt saw it himself, and said it was his; he is gone abroad; I only know it from the buttons being papered, and lined with white silk.

Then you would not have known it only by the buttons being papered? - No; none of the gowns are marked; the sheets are marked; this I know to be mine.

PRISONER's DEFENCE.

I know nothing at all of the robbery of any kind; I never had any dealings with the man; he has taken away my life already; I am in a halter already.

Mr. Peatt. Did you buy that gown yourself; - No, Sir, I did not.

You would not have known that gown, perhaps, if you had seen it any where else? - I should have thought it was like mine.

What do you suppose that gown and coat to be worth at a reasonable value, as a second hand thing? - I cannot say.

GUILTY. Of stealing, not of the burglary .

Transported for seven years .

Tried by the first Middlesex Jury before Mr. RECORDER.