5. Joseph Upton proceedingsdefend , of St. Butolph Bishopsgate , was indicted for breaking and entering the House of Robert Allen proceedingsvictim , between the Hours of One and Two, in the Night, with intent to steal the Money and Goods of the said Allen , July 12 .

Mr. Allen. I was call'd up between 1 and 2 o'Clock in the Night, the 12th of July last, by a Neighbour's Servant, who is a Baker, and lives over - against my House. I look'd out of my Chamber Window, and he told me, somebody had been breaking into my Cellar. I desir'd him to watch, 'till I could come down; and when I came to examine the Cellar Door, I found one of the Bolts broke, and the Staples that belong'd to the other, were broke likewise. I had order'd my Servant to fasten them about Eight o'Clock; which he did; for after I had been out, to take a Pint of Beer, I return'd Home, and about Nine, I saw them both fast. When I found the Door broke open, I order'd my Servant to search the Cellar; he found the Prisoner hid behind a Hogshead of Oyl, and lugg'd him towards the Cellar Window; then I help'd to pull him out, and he was carry'd to the Watch House.

James Overate < no role > . I am Servant to Mr. Spurling, a Baker, over-against Mr. Allen's. On the 12th of July, at Night, I was at Work there; and hearing a Noise, I look'd through a Hole in the Window, and saw a Man piddling about the Cellar Window; I ask'd him, what he was doing there? upon which he rose up, and went away without speaking; but I did not speak very loud, for fear some of his Companions might be about the Window, and do me a Mischief. Then I call'd my Master up; and when he and the Servants came down, I went out, and finding Mr. Allen's Cellar Door wrenched open, I knock'd at his Door, and acquainted him with it. He came down with his Apprentice, and as soon as they got a Candle, the young Man went into the Cellar, and I was going to my Work; but before I had got to my own Door, he cry'd out, - he had found the Man. Mr. Allen immediately shut the Cellar Door to keep them both in, 'till I came back; then we open'd the Door, and I help'd to pull the Prisoner out.

Elias Idle < no role > . I am Mr. Allen's Servant. I fasten'd the Cellar Window a little after Eight, and push'd both the Bolts home. About Ten, I went to Bed, and a little after One, the Baker knock'd at the Door, and said the Cellar Window was open. Upon this, my Master and I came down, and he order'd me to go into the Cellar, where I found the Prisoner conceal'd behind a Hogshead of Oyl. I call'd for Assistance, and snatching up a Shovel, I stroke him a Blow, which made him reel; then I seiz'd him, and lugg'd him to the Cellar Window, and my Master and the Baker took him out. I don't remember that he spoke one Word, while he was in the Cellar; nor had he any thing about him, but a Steel and a Tinder-box, which the Constable found in his Pocket. My Master is a Currier , and the Goods we have in the Cellar, are Butts of Leather and Oyl, which are pretty Bulky, but we carry them in by that Door. If the Prisoner had got into the House through the Cellar, he must have broke open more Doors.

Prisoner. As to the Steel and Tinderbox, - I was going to my Wife at Colchester, and they were only to light my Pipe, as I went along. And as to my being found in the Cellar, - I had been drinking, and in passing along, I chanc'd to fall down into it.

Mr. Allen. He could not fall into the Cellar, unless he fell into it on purpose, after he had open'd the Door; and I am sure he was quite sober. Guilty . Death .