183. (M.) Antonio de Silva, otherwise John Sequentor proceedingsdefend , was indicted for that he, on Bartholomew Malahan proceedingsvictim , feloniously, wilfully, and of malice aforethought, did make an assault with a certain clasp knife, value 2 d. which he had and held in his right-hand, on the breast of the said Bartholomew did strike, giving to him one mortal wound, the breadth of one inch, and depth of one inch, with which he did languish from the 28th of March , to the 13th of April, and then died. That the said Silva, the said Bartholomew, in manner and form, did kill and murder. He stood charged likewise on the coroner's inquest for the said murder. *

The prisoner being a foreigner, at his request, was tried by a jury of half foreigners, and at his request, the witnesses were examined apart.

John Ricks. I know Antonio de Silva, and also Bartholomew Malahan.

Q. When did Malahan die?

Ricks. He died on the 13th of April.

Q. Give an account of what you know of the matter?

Ricks. About 11 at night, on the 28th of March, I was coming along Little-tower-hill, towards Iron-gate , I had Malahan and Elizabeth Woodward along with me, they and I were talking together; the prisoner came by with another Portuguese sailor, and a jew girl along with him.

Q. Which way did they come?

Ricks. They came from towards Iron-gate, the two girls stood and talked together, the jew girl struck Elizabeth Woodward.

Q. Did she hit her hard?

Ricks. No, it was a slight blow on her arm; Woodward asked her what that was for, then Antonio de Silva stripped his things off directly, and gave them to the other Portuguese sailor.

Q. Had any thing been said to the prisoner?

Ricks. Not a word had past between them, that is, between the men: then he struck the deceased, and hit me too.

Q. What did he strike you both with?

Ricks. With his fist.

Q. Did he not give a reason why?

Ricks. He did not say he had any reason for it.

Q. What did he say to you?

Ricks. He swore at us.

Q. At this time, had either of you said any thing to him?

Ricks. No, we had not.

Q. Had either of you struck him?

Ricks. No, we told him we did not want to quarrel with him.

Q. Was he drunk or sober?

Ricks. I cannot tell whether he was sober or not.

Q. How many blows did he strike you?

Ricks. He struck me but one blow.

Q. How often did he strike Malahan?

Ricks. He struck him twice.

Q. Whereabouts did he strike him?

Ricks. I cannot tell that. Then the prisoner went and slipped down the hill, and drew his knife directly, as soon as he had struck us both.

Q. Slipped down what hill do you mean?

Ricks. He ran down towards Tower-ditch, and when he was got to the rails, he drew his knife.

Q. What were you doing in the time?

Ricks. We followed him directly, the deceased went first, and I afterwards. I saw the knife in the prisoner's right-hand, when he was got down the hill.

Q. What sort of knife was it?

Ricks. It was a good large knife, the blade was broad.

Q. At the time you saw the knife, how near was you to the prisoner?

Ricks. I was close to him.

Q. Did any blows pass between the prisoner and the deceased at the rails?

Ricks. There was a blow or two past, for Bartholomew knocked him down before he stabbed him?

Q. Who struck the first blow after Malahan got to him?

Ricks. They both struck together, and the prisoner fell down.

Q. How many blows past before they fell down?

Ricks. There were not above a blow or two before he fell; but the knife was out before any blow was struck.

Q. Did you strike any blow after you was down the hill?

Ricks. No, I did not. After Antonio got up again, he stabbed the deceased directly.

Q. How was it done?

Ricks. He went to give him a blow backhanded (holding the handle in his hand, and the blade directed backwards) and the knife went into his breast. He immediately called out, Lord have mercy on me, I am stabbed. I saw the knife in the prisoner's hand at the time.

Q. What part of his breast did the knife go in?

Ricks. It went in at the middle of his breast.

Q. Did the deceased fall?

Ricks. No, the prisoner immediately ran away without his cloaths, and the deceased went immediately home, and I went home along with him, to his lodgings in St. Catharine's.

Q. Who else was at the fighting?

Ricks. Elizabeth Ward was there, and the jew girl.

Q. Where was the other Portuguese?

Ricks. He was standing upon the hill, he never offered to come down, on meddle with us.

Q. Did you know the two men before?

Ricks. I never saw them before to my knowledge.

Q. Are you sure the prisoner is the same man?

Ricks. I am very sure of that, I know him very well, we carried up the two Portuguese together to the deceased, when they were both in irons, and asked the deceased, which of them it was that stabbed him; he pitched upon the prisoner at the bar?

Q. Was it a light or dark night?

Ricks. It was lightish, so that I might see any thing. I saw the knife in the prisoner's hand very plain. As soon as the deceased got into the house he fell down, and said, if he had had five yards farther to have gone, he could not have got home.

Q. How did he appear?

Ricks. He was all over bloody. This is the shirt he had on. (Producing a shirt very bloody.]

Q. Did you see the wound afterwards?

Ricks. I did.

Q. In what form was it?

Ricks. It was in the middle of his breast crossway?

Q. How long was the wound?

Ricks. It was pretty near an inch long.

Q. When was the prisoner taken?

Ricks. He was taken the next day about 12 o'clock on board a ship, but I was not on board, I was on the shore?

Q. How long was it, after he was taken, that you carried him to the deceased?

Ricks. We carried him to the deceased in about a quarter of an hour; and the other Portuguese that held his cloaths.

Q. Was the prisoner searched?

Ricks. He was. He had no knife about him.

Q. Was the deceased sensible when they were both produced before him?

Ricks. Yes, he was; and so he was almost to the last minute.

Q. What questions was asked the deceased at that time?

Ricks. They asked him if he knew which of them it was that stabbed him. He pointed to the prisoner, and said, that was the man that stabbed him.

Q. Did he call him by his name?

Ricks. No; he did not know his name.

Q. How near did the Portuguese stand to one another at the time?

Ricks. They stood close to one another.

Q. Did the deceased touch the prisoner?

Ricks. No.

Q. What answer did the prisoner make?

Ricks. He did not say any thing. He stood very unconcerned about the matter.

Q. How long did the deceased live after the wound given?

Ricks. He lived 16 days to an hour; and then he died of the wound. The prisoner had a laced hat on, and he left it behind him on the hill, and I carried it to him, and he owned it, and said that is my hat. He had pulled it off, and given it to the other Portuguese to hold with his cloaths.

Q. Had the other Portuguese a laced hat on?

Ricks. He had not.

Q. How came the hat to be left behind?

Ricks. I went and took it out of the other man's hand, when the prisoner was run away, and said, I would keep that to find the man again; to find him out.

Q. Did the other man run away?

Ricks. He never ran the time we were there.

Q. When was the hat produced again to the prisoner?

Ricks. He was shewed it the next day: the day he was taken.

Q. Did you see the deceased after this?

Ricks. I saw him every day. Sometimes two or three times a day, till he died. I lived in the same house. Malahan said he should not live, from the time he was stabbed, because from that time he was short breathed.

Q. What was the reason Antonio had for running down the hill?

Ricks. I think it was on purpose to draw his knife. He had it not drawn when upon the hill.

Cross Examination.

Q. Did you belong to a press-gang?

Ricks. I did.

Q. Was you sober at that time?

Ricks. I was.

Q. Had you not been drinking?

Ricks. I had been drinking but very little, not above a pint of beer that evening.

Q. Had not the other Portuguese a laced hat on?

Ricks. No, he had a little round hat on.

Q. What did you and Malahan run down the hill after the prisoner for?

Ricks. To strike him again, as he had struck us.

Q. Had either of you sticks?

Ricks. No, we had not.

Q. Are you sure the prisoner had not received a blow from either of you before?

Ricks. No, he had not, till the first blow was given us, before he ran away.

Q. Did you strike him?

Ricks. No, I did not strike him at all.

Q. How near was you to Malahan when he came first up to the prisoner?

Ricks. I was within four yards of Malahan.

Q. Did you see the knife in the prisoner's hand before Malahan knock'd him down?

Ricks. I did.

Q. Was the knife in the prisoner's hand when he struck Malahan after they were come from the hill.

Ricks. It was. I saw it.

Q. How came you to stand by and not assist, and save your friend, when you saw the knife in the man's hand?

Ricks. I told my friend there was a knife.

Q. Where was Elizabeth Woodward, and the jew girl, when you were down the hill?

Ricks. They were down the hill with us. The other Portuguese stood upon the hill, and never came down to us.

[The jury inspect the shirt, and close to the bottom find the cut made cross-ways with a sharp instrument.]

Q. How were the two men dressed at the time they were brought to the bed-side?

Ricks. The other Portuguese had got Antonio's great-coat on, that Antonio had on the night before when we met him, and Antonio had got a Dutch cap on.

Q. Did not the prisoner deny the fact when he was by the bed-side?

Ricks. I did not hear him deny it there. He did deny it going along the street, several times.

Q. Did you see the watch?

Ricks. I did not see any watch.

Q. Did not you call out for the watch?

Ricks. No, we did not, but made the best o our way home.

Q. Was you here the day before yesterday?

Ricks. I was.

Q. Did you see some prisoners?

Ricks. I did.

Q. Did you see the prisoner at the bar?

Ricks. I think I did, but he had not put his arms into his coat, the arms were hanging about his back, and I could not see him rightly, so would not be positive to him.

Q. Did you say whether he was the man, or not?

Ricks. I said I could not tell rightly, as it was in a dark place; but, I said I should know him if I was to see him out.

Q. Did you not say he was not the man?

Ricks. I did not say he was or was not.

Q. Was the prisoner before you at that time?

Ricks. He was, but he had been in a jacket all the times I saw before.

Q. Are you sure you know him now.

Ricks. I am sure he is. This is the man.

Q. Did you not say you would hang him if there was never another man in the world?

Ricks. No, I did not.

Elizabeth Woodward. I was in company with Malahan on the 28th of March, on Tower-hill.

Q. What time of the day?

E. Woodward. Betwixt the hours of ten and eleven in the night. It was almost eleven. As we were going along we saw two Portuguese and a woman coming along; the woman gave me a push over the arm, and said, So, madam, you are so proud you are above speaking to me.

Q. What were you doing then?

E. Woodward. We were passing by them.

Q. What answer did you make?

E. Woodward. I said, I'll speak as freely to you as to any body, if I knew you. The prisoner, who was one of the men in her company, said to her, d - n your blood, you b - ch, what are you afraid of?

Q. Did you know him before?

E. Woodward. I never saw him before that night. He instantly pulled off his cloaths, and gave them into the other Portuguese's hand, and said to the deceased, If you are a man fight, or I'll lick you both, and immediately knocked the deceased down. Then he went and struck Ricks, and immediately draw'd his knife, and stabbed the deceased in his breast.

Q. Where was this?

E. Woodward. This was in the place where they met.

Q. What, where they met first of all?

E. Woodward. It was after he tumbled down on the lower part of the hill? the deceased fell down at the bottom of the hill. I fancy his foot slipp'd down.

Q. When you were upon the hill, were there not rails at the bottom of the hill?

E. Woodward. There were.

Q. How far were you, when you were upon the hill, from the rails?

E. Woodward. We were about 5 yards distance. Then Antonio was down at the bottom of the hill.

Q. Where was Ricks then?

E. Woodward. He stood still on the hill all the time. He did not go down to the rails.

Q. What became of the other Portuguese?

E. Woodward. He stood upon the hill with Antonio's cloaths under his arm.

Q. Where was you?

E. Woodward. I stood on the hill all the time. The prisoner came up to me, but never struck me.

Q. Did the jew girl go down the hill?

E. Woodward. She ran away immediately after the stab was given. I stood upon the hill all the time, and she did not go down the hill.

Q. Who were below the hill when the stab was given?

E. Woodward. At that time there was nobody down the hill but Antonio and Malahan.

Q. Did they not fight together below the hill?

E. Woodward. No they did not.

Q. Did not the deceased strike the prisoner?

E. Woodward. No, he did not lift up his hand against him.

Q. Were there no blows at all?

E. Woodward. No there were not.

Q. Was not Antonio beat down to the ground?

E. Woodward. No, he was not.

Q. Did you see a knife in Antonio's hand?

E. Woodward. I did.

Q. At what time did you see that?

E. Woodward. Just before the deceased was stabbed.

Q. Did you see it in his hand before he got down the hill?

E. Woodward. I did not.

Q. Did you see him draw it?

E. Woodward. I did not.

Q. Was it a light or dark night?

E. Woodward. It was a star-light night.

Q. How could you see a knife at five yards distance?

E. Woodward. I saw the knife in his hand, about a minute before the deceased was stabbed; it had a brightish blade, and a picked point. When the deceased cry'd out he was stabbed, I went down the hill, it was a very light night.

Q. How did the prisoner hold the knife?

E. Woodward. He held it in a back handed way, I saw him strike with it.

Q. What became of the prisoner, when Malahan called out he was stabbed?

E. Woodward. He ran away, and we led the deceased home by his arm.

Q. Did you see the wound afterwards?

E. Woodward. I did, it was in his breast.

Q. When did he die?

E. Woodward. I cannot rightly tell what day he died.

Q. Where was Ricks, at the time the blow was given?

E. Woodward. When the deceased cryed out he was stabbed, then Ricks ran down the hill.

Q. Are you sure the prisoner is the man?

E. Woodward. I am sure he is.

Cross Examination.

Q. What is the other girl's name that was with them?

E. Woodward. I do not know her name, I never saw her before to my knowledge.

Q. Did not you strike her?

E. Woodward. I did not.

Q. Had there not been some blows struck by the deceased or Ricks, before the prisoner pulled of his cloathes.

E. Woodward. No, there had not.

James Wheeler. I am a constable. I took Antonio, I first took his girl that he lived with; I took him and the other Portuguese that was with him at the time, before the deceased, as he lay in bed. He was asked which gave him the wound, he pointed to the prisoner, and said, that is the man. Then I carried him before justice Scott, and he committed him to Newgate. I asked the deceased, about two hours before he died, if that man that I brought to him was the occasion of his death; he said, it was him, and nobody else.

Cross Examination.

Q. Were the prisoner and the other Portuguese carried together to the deceased?

Wheeler. They were carried together to his bed-side, I kept the prisoner in the watch-house, while my brother officer went and fetched the other from on board a ship.

Q. How was the prisoner dressed?

Wheeler. He had a whitish jacket and a cap on.

Q. How was the other dressed?

Ward. He had a blue great coat and a hat on.

Q. Did you search the prisoner?

Ward. We did there was nothing about him but a tin box, and some papers in it?

Q. What did the prisoner say, when the deceased said he was the man?

Ward. The prisoner pointed to the other, to make him believe it was him, he was going to lay it to the other Portuguese; that is, the prisoner was; but the other Portuguese cleared it up to the justice.

Q. What did he say to the justice?

Ward. He said, he held the prisoner's cloaths the while; and said to the prisoner, I held your cloaths the while you went down to fight the the Englishman.

Gedsrey Mackdaniel. I am an officer belonging to the press-gang that the deceased and Ricks belonged to.

Q. What is your office on board a ship?

Mackdaniel. I am mate of a man of war, and mate of the gang at present. On Saturday the 28th of March, after 11 at night, I was in bed, and was called to come down, and told there was murder committed at the rendezvous. I went and found the deceased lying on his back, with a wound on his breast bleeding.

Q. Where was this?

Mackdaniel. This was at the Dutch Skaters in St. Catharine's.

Q. Whereabouts was the wound?

Mackdaniel. It was on the pit of his stomach, to the best of my remembrance, and about two inches from the middle of the stomach.

Q. How long was it?

Mackdaniel. About an inch long.

Q. What did you apprehend it to have been given with?

Mackdaniel. I apprehend it to be given with a knife?

Q. In what position was it?

Mackdaniel. It was across the breast, I immediately ordered a surgeon to be sent for, and a constable, and I charged the constable to take care of the woman (the last witness) she was then present. The surgeon came and dressed the wound, and the deceased was carried up to bed between four men. The next morning, the constable was there, and I went to find out the man that gave the wound, by the hat.

Q. What sort of a lace had it on it?

Mackdaniel. It had a narrow silver lace.

Q. Who had the hat?

Mackdaniel. The constable had it?

Q. Do you know how he came by it?

Mackdaniel. No, I do not know?

Q. to Wheeler. Where had you the hat?

Wheeler. Ricks delivered that to me, it had been a gold lace, but the gilt was worn off, and the silver appeared.

Mackdaniel. When I saw the prisoner and the other Portuguese at the watch-house, the prisoner accused the other, and the other accused him. Coming from the watch-house, to go before the justice, the constable and I agreed to carry them both up to the deceased's bedside.

Q. Was the deceased then in his senses?

Mackdaniel. He was, we asked him if he knew the man that did him the injury; he said, that is the man. I asked him a second time, he held his hand out, and said, that was the man, (he pointed to the prisoner,) to the best of my knowledge, I asked him a third time, and he seemed to be jealous of my veracity, and said, it was the man.

Q. Was Ricks in the room then?

Mackdaniel. He might be in the room at the time, but I do not recollect it. I asked the deceased several times after that, and so did Ricks, and he always said, that was the man.

Cross Examination.

Q. How near did the prisoner and the other Portuguese stand to each other?

Mackdaniel. They were both alongside each other, at the bed-side.

Q. Did they come up stairs together?

Mackdaniel. They came up the staircase together.

Q. Had not the prisoner been carried up before by himself?

Mackdaniel. No, he had not.

George Chinnery. I am an officer belonging to this press-gang, I was called out on Saturday-night, the 28th of March, in a great hurry, by one of our people telling me, Malahan had been stabbed by a Portuguese, (I lodged just by.) I went, and there I found the deceased foaming at the mouth, and appeared to have but little life in him, I saw the blood gush out of his body.

Q. Was you by when the prisoner and another Portuguese were produced before Malahan?

Chinnery. I was, he was asked twice who gave him that wound, he said, the prisoner was the man, (pointing to him.)

Q. What did the prisoner say to that?

Chinnery. The prisoner denied it.

Q. Did the prisoner always deny it?

Chinnery. I never heard him acknowledge it.

Q. Was Ricks there at the time?

Chinnery. I cannot tell whether he was or not, there was a good many people there?

Q. Did you see the prisoner searched?

Chinnery. There was nothing but a tin box taken from him by the headborough, and it was given to me, (It was delivered to the prisoner.)

Prisoner. Here are some papers missing.

Chinnery. It is now as it was delivered to me by the constable.

Q. Who was the warrant directed to, to take him?

Chinnery. We took him up without a warrant.

Wheeler. All our four headboroughs were at the taking of him.

Mr. Thompson. I am a surgeon. On a Saturday I found the deceased apparently dying; he had no pulse, with a wound in his breast.

Q. What sort of a wound was it?

Thompson. It was a transverse wound in the middle of the breast; he had lost a deal of blood. I introduced my probe, and put it further than an inch, but the deceased complained of great pain, and told me he had lost a deal of blood; then I did not put my probe any further.

Q. How wide was the wound?

Thompson. It was very nigh an inch broad.

Q. What did it appear to be given by?

Thompson. To me it appeared to have been given with a knife?

Q. When did he die?

Thompson. He lived from the 28th of March, to the 13th of April, and then died.

Q. In your opinion what was the cause of his death?

Thompson. My opinion is that he died of that wound. From the first of my seeing him, he complained of a violent shortness of breath, and to the last continued with a difficulty of breathing. At the coroner's request I opened the breast, and found the thorax full of blood, and bloody water. I apprehend that difficulty of breathing proceeded from some vessels being divided.

Q. Did you perceive the lungs to have been wounded?

Thompson. I did not perceive that they were.

Prisoner's Defence.

I did not stab him I'll assure you.

For the Prisoner.

Jane Orm. I saw the witness Ricks on Wednesday last in the Bail-dock.

Q. Who else were there at the same time?

J. Orm. There were Turvey and the prisoner and others, Ricks came in, and asked for Antonio. They asked him what he wanted with him, and whether he should know him. He said, yes. They called the men up, and Antonio stood between two of them. Ricks said, he was not the man that stabbed the other man.

Q. Did you hear him say so?

J. Orm. I did.

Q. Was there light sufficient to see the prisoner at that time?

J. Orm. There was.

Q. What time of the day was it?

J. Orm. It was four o'clock, or between four and five, in the afternoon.

Q. Had they candles?

J. Orm. They had; Ricks was going out, they called him back again, and asked him if that was the man. He said, no, he was not the man. Then he turned himself round, and said, He would hang him, if he never hung another.

Robert Turvey. I was present on Wednesday last at the time the last witness mentions.

Q. Did you see Ricks there?

Turvey. I did, the prisoner was brought with his face to the bars.

Q. Could he be seen there as plain as he can now?

Turvey. I cannot take my oath to that.

Q. Could you see him so as to know him?

Turvey. I could.

Q. Could Ricks see him as plain as you?

Turvey. He could, because we were both alike on the outside. At his first coming in at the gate, he asked for Antonio; he was answered Antonio was here. When he saw him, he did not know him.

Q. Did he say he was not the man, or he could not tell whether he was or not?

Turvey. He said he could not tell, except he was to see him out.

Francis Eagan. The prisoner has come often to my house.

Q. What has been his behaviour, peaceable, or how?

Eagan. He was always very peaceable. I saw him fight one night, and instead of stabbing the person, he gave me his knife; and after that he beat two men one after another. Now, said he, you beat me with your sticks, you shall not say I use my knife, as they say my countrymen do, and so gave it to me.

Q. How came they to fight?

Eagan. They had used him very ill; one of them was an Irishman, and the other an Englishman.

Q. Did he use to quarrel and fight often?

Eagan. I never saw him quarrel, but that one time.

John Randall. I live in St. Luke's parish, I have known the prisoner between eight and nine months, he used my house.

Q. What house do you keep?

Randall. A public-house.

Q. Is he a quarrelsome man, or of a peaceable disposition?

Randall. As quiet a man as ever I saw; I saw him fight one, and before ever he begun, he said, I will not use my knife. I will put my knife out of my pocket; then he gave it away, it was one Smith, a taylor, he fought with.

Q. How came they to fight?

Randall. Smith challenged him.

Q. Is the prisoner addicted to passion, or not?

Randall. He is not, he will sooner take two affronts, than give one.

Ann Kennedy. I have known the prisoner about 17 or 18 months.

Q. Is he a peaceable, or quarrelsome man?

A. Kennedy. I never saw him a quarrelsome man in my life, I have often seen him strive to make peace, but never saw him quarrel; I have seen him take many affronts, but never saw him give any.

Daniel Venbury. I have known him nine or ten months.

Q. Have you been often in his company?

Venbury. I have, and always found him a harmless, civil man; I have given him provocations myself.

Q. How have you given him provocations?

Venbury. By giving him a stroke with a stick once, which he never resented; and once he was playing with one of his countrymen, his countrymen took out a clasp knife, and made use of some language that I did not understand. Said the prisoner, I will not use that thing, but I'll box you in the English way, and reprimanded his countryman for taking the knife out.

Q. What are you?

Venbury. I am a sailor, I sail in the merchants service.

Q. Did you ever sail along with the prisoner?

Venbury. No.

Q. Was you an officer over him when you struck him?

Venbury. No, I was not.

Mary Eagan. It is not long since I knew the prisoner; it may be about two or three months, or thereabouts.

Q. What has been his behaviour?

M. Eagan. He behaved very well during the time I knew him.

Guilty of Manslaughter .

[Branding. See summary.]

[Imprisonment. See summary.]