77. (M.) Robert Middleditch proceedingsdefend , was indicted for the murder of Evan Stockbourne proceedingsvictim , Jan. 4 . He stood also charged on the coroner's inquest for murder. *

Benjamin Wheeler < no role > . I was with the prisoner and the deceased a fortnight ago to night, in the house of Mr. Baker, called the Three Tippling Philosophers in St. Alban's-street ; there were words passed in anger between the prisoner and landlady ; she accused him with having called her old bawd; he said, it was not him, but the deceased that had called her so; at which time Stockbourne the deceased came in, and opposed the prisoner in what he had said; he called him names, and challenged him to fight in Hyde-Park for a Guinea, and throwed it down on the table ; the prisoner answered, he had not a Guinea about him; he put his hand in his pocket and pulled out two six-pences, and laid them on the table ; then the deceased took up his guinea and put it in his pocket, and asked a friend of his to lend him a shilling, who did, and the prisoner covered the two six-pences with it; they agreed to fight; then the deceased took up the money and gave it to the prisoner's partner, (they are chairmen , the deceased was a groom ) to hold, and they both bound it with a half-penny each.

Q. What did they mean by that?

Wheeler. Their meaning was, that there should not be law taken on either side.

Q. Was that mentioned ?

Wheeler. It was, my Lord; the deceased fix'd upon fighting the next morning by eight o'clock, in the ring in Hyde Park, and he that was not there at the time appointed, his money was to be forfeited, fight or not fight.

Q. Did they meet at the time?

Wheeler. They did; I saw them both in the ring when I was about a hundred yards distance; I saw them tying their garters below knee, making themselves ready, I hallow'd out, Cod speed your labour.

Court. Instead of that it would have been much better, had you endeavoured to perswade them not to fight.

Wheeler. When I came into the ring, Evan Stockbourne < no role > came up to me and said, Friend, you must be my second; I denied him and said, there were two better men than I was there, and nam'd their names. He answered, he had asked them before, and they had denied him, and there was none but me, and I denied it; then the other's second, Walter Kelly < no role > , said, if you'll agree, I'll be the other's second, and, I dare say, there will be no wrong done on either side; then they stripp'd, and we pull'd off our cloaths; they shook hands and went to it; the deceased gave the prisoner two grabbling falls.

Q. Did he himself fall to the ground?

Wheeler. No, he did not; after that they had three or four blows each, the deceased dropped down, fetched a heavy groan, and died immediately.

Q. Was it by any blow, or by missing the prisoner, which occasioned him to fall?

Wheeler. He received a blow over his temple, and he made an offer at the prisoner; his hand went up. and he fell.

Q. Was the groaning before or after he came to the ground?

Wheeler. That I cannot determine; he died immediately.

Q. What became of the prisoner?

Wheeler. He never offered to go away, and as soon as a proper officer came, he surrendered himself to him.

Q. Was an officer there?

Wheeler. There came a constable, the prisoner went up to him and said, I am your prisoner; he went before Justice Lediard, and he committed him to the Gatehouse.

John Sharp < no role > . I know nothing of laying the wager; I was called up between seven and eight o'clock that morning; he told me the men were going to fight; I saw them, when he did, tying their garters below their knees; when we came within the ring, the deceased asked Wheeler, if he would be his second; he answered, if there were no better man there, than he was, he would; as they were going to fight, a man said, gentlemen, shake hands, don't fight in malice; they shook hands; they had about three or four blows, and the deceased gave the prisoner two falls, which were such that they could not hurt any body; they were help'd up again and set too; the prisoner hit the deceased two or three hard blows about the temple with his left hand; I don't remember him doing any thing with his right hand but guard himself; the deceased almost knocked him down by a blow on the stomach, then he went to give a catch at the prisoner to throw him, but missed it and fell down as he went to make a blow at the prisoner; his head seemed to plow the ground; his second went to lift him up and could not; the other second said, Why don't you hand him up; he answered he could not; the other went to help him and said, he believed he was dead or dying; the other said, God forbid; I looked in his face and said, I believed he was dying ; I went for a Surgeon, but I could not find one up; I looked about for a barber to bleed him, and at last I got a person out of Hyde-Park Infirmary, but before I got there, he was as dead as a stone.

Q. Which blow do you think was the occasion of his death?

Sharp. I cannot say.

Q. Whereabouts did the prisoner strike him?

Sharp. I don't remember he hit him any where beside the temples; I believe the deceased was never right in his senses after he received the first blow, and he strove to fight but could not.

Q. Did not he strike the prisoner?

Sharp. He did give the prisoner one blow on the stomach, and I thought he would have fell, but he did not.

Q. Did you know the prisoner before?

Sharp. I have known him about two years; I have drank in his company several times, but not much acquainted ; I never heard a bad character of him.

Q. Who struck the first blow.

Sharp. They put themselves in a posture of defence, and I think the prisoner received the first blow.

Q. Which did you take to be the strongest of the two.

Sharp. I took the deceased to be considerably the strongest man.

Daniel Kelly < no role > . I was informed in the morning that the prisoner wanted me to be his second; I went to the public house where they were to meet; the deceased was gone before, and was in the ring before the prisoner came there; as soon as I came the deceased and I shook hands, and wished each other a good morning; they stripp'd and shook hands, they put themselves in a posture of defence, and had two or three blows between them; Stockbourne throw'd the prisoner two falls; they got up, set too again, and both struck as fast as they could; I don't know which struck first; all the blows the prisoner gave the other, were about the head; as the deceased hit him, his second said, Well done, such another blow will do for him.

Q. Did the deceased fall at that blow?

Kelly. No, he did not; he went to make another blow at him, and fell down dead.

Q. How came he to fall?

Kelly. He was not able to make a blow, after which I never observed breath in him.

Prisoner's defence.

Over night the deceased challenged to fight me in the morning; I was desired to stay and lie with some chairmen, fearing I should be too late, but I went home and lay with my wife, and was called out of my bed; I had no animosity against the prisoner, but only in defence of myself; when we fought, we both shook hands, and said, we had no animosity ; when they said he was dead, I said, Lord have mercy, I hope not. I was desired to quit the ring, and make off; I said I would not, so I surrendered myself.

John Sharp < no role > . When I said he is dead, I heard the prisoner say, No, I hope not; said I, I am afraid he is; he said, God forbid.

For his character.

Joseph Maschal < no role > . I have known the prisoner between three and four years; I look upon him to be a good-natured honest man; I never heard he was a quarrelsome fighting man.

Guilty of Manslaughter .

[Branding. See summary.]