720. JOHN BURKE proceedingsdefend was indicted for feloniously assaulting Thomas Fellows proceedingsvictim , Esq ; on the King's highway, on the 24th day of July last, and putting him in fear and danger of his life, and feloniously taking from his person and against his will, one watch with the inside and outside cases both made of silver and gilt with gold, value 4 l. two stone seals set in gold, value 30 s. one base metal chain gilt with gold, value 1 s. one stone seal set in base metal and gilt with gold, value 1 s. one base metal hook, value 1 d. one base metal key, value 1 d. one silk purse, value 6 d. and five pieces of gold coin of this realm called guineas, value 5 l. 5 s. the goods, chattles, and monies of the said Thomas Fellows < no role > .

THOMAS FELLOWS < no role > , Esq; sworn.

On Thursday the 24th of July last, I had been to do the business of the county at the Sessions, at the County Hall at Clerkenwell-green; I am in the commission of the peace for this county ; I dined at the hall, and returned from thence about five o'clock in order to go to my house at Uxbridge where I live; I was not quite so well as I could wish, and I drank very sparingly at dinner, and after dinner I went to the Old Hatch and there I stopped, and between the eight and nine mile stone, at a place called Brent bridge , I saw three men go by on horseback, two on one side of the hedge and one on the other; the prisoner at the bar was one of the three; they went as far as the road parted, they passed me, and they left one man behind and two men came up, the one came on the right side of my chariot, and the other on the left; the man on the left hand came first and demanded my money, he said give me your money; I saw a pistol in his left hand, I spoke rather slow, and said, what do you say? He answered pretty quick, give me your money, or I will blow your brains out; he took my purse with five guineas in gold in it, the purse was green and red silk; he then said give me your watch; the prisoner at the bar came up on the other side of my chariot, and he spoke rather sharper, give me your watch, he said, and be quick; the prisoner was one of the two men that came up, he was on the right side of my chariot close to my chariot; on the broadside of the glass, he had no disguise at all on his face, neither of the men had any disguise, I had the opportunity of looking at him and his horse, it seemed to me to be a dark bay or chesnut, and I believe it was cropt, I could not tell whether it was a horse or a mare; he took my watch, it was silver gilt, and the seals to it were gold, a gilt metal chain, a key and a hook to hang it to the head of the bed; when they had robbed me and took my watch in that manner, they turned round to go back again towards London; as he came I looked out of my chariot, and I called out to the best of my knowledge, and he said, you, Sir, he spoke in a feigned voice, what do you want; I said if you will leave my watch, where I can come at it in London, I will pay you for it, or give you something for it, or to that effect; he said I will advertise it in the Chronicle.

Did you hear him say that yourself? - I did.

Court. Are you sure that is the man? - I am certain sure the prisoner at the bar is the man.

Court. Was the watch advertised? - Yes, it was advertised by Sir Sampson Wright, the prisoner was not taken on my account, he was taken on another account, my watch was never found.

Prisoner's Council. What time was this? - Eight in the evening.

Was it not a dark evening? - No, quite light, the sun shone.

Was not you considerably intimidated? - To be sure I was.

Did you ever see the prisoner before? - If I did it is more then I can say.

Because your recollection of him seems to be pretty strong? - I think he gave me a good deal of reason to remember him.

But you was exceedingly frightened? - If I had I could not have asked him for my watch, I was more frightened afterwards.

You never saw him before did you? - I will not take upon myself to say any thing to that.

WILLIAM BOWYER < no role > sworn.

I know nothing respecting the robbery, only I apprehended the prisoner, we had no suspicion of him any more than if he had been a gentleman passing on the road, till he attempted to run away; the first time he passed us was down by Shepherd's Bush, he was on foot in company with another person on horseback.

Court. When was he taken? - On the 7th of this month; when he passed me I asked him if he was going to town, he said he was, he went about thirty yards before us; when we had just overtaken him he said, you want to rob me, and he run; I pursued him; I called to him and told him we were the patrol, and if he did not stop I should fire at him; we then took him and brought him back to the Plough at the Gravel Pits; he said then his name was Thompson, that he was clerk to a Mr. Priddle, No. 11, Cleveland-row; I gave him all the indulgence possible; we came to No. 11, in Cleveland-row, and there nobody knew him; so I told the coachman to drive us to Covent Garden Round < no role > -house, then he began to abuse us, says he, damn your eyes all, my name is not Thompson, but John Burke < no role > ; says I, you have brought this on yourself Mr. Burke, for if you had spoke to we, we should not have taken you; he said, he ran because he knew Alliburton, and because he knew he was out all night, and that he was wanted.

JOHN HOUSE < no role > sworn.

I lived with Mr. Fellows, I was the coachman, I drove him the day he was robbed; as we were coming up Chevy Chace Hill, towards Uxbridge, we met two men, one on the right-hand and one on the left, I did not take any notice of them, I thought they were young gentlemen that went to Uxbridge market, the young man on the left-hand turned back and stopped my master, there were two turned back, but I saw only one; I saw the face of the other that was convicted last sessions, I did not see the face of this prisoner at all, nor of his horse; I cannot say what man it was that did come back, for he desired me to look forwards or he would blow my brains out; it was the man that came forwards that demanded my master's watch, and that bade me look forward.

Did you hear the other man say any thing? - No, I saw nothing done, I only looked forwards.

Prisoner's Council. You know nothing of the prisoners then only that your master was robbed? - No, Sir.

Prisoner. I leave my defence to my Council.

Prosecutor. I beg leave to call a man that can prove him on the spot.

WILLIAM ALLEN < no role > sworn.

I live at Hillingdon, within a mile of Uxbridge, I took in the horses; there were three men, but I cannot say I could swear to either of them; they came in at the Red Lyon, where I was hostler.

Court. Did you take notice of the man? - Yes, one was shortish one, and two came first and the one came at last; he who came at last went the first away, the other staid about five minutes after; they came towards London, it was about seven o'clock, and they went towards London.

Court to Prosecutor. What time was you robbed? - It was rather turned of eight, it struck eight when I was at the Old Hatch: there is one matter that I have omitted, that is the colour apparently of his coat, it appeared to me to be blue.

Court to Allen. What time was it when they went away? - About seven.

And they went towards London? - Yes.

Did you observe any thing of their clothes or faces, or any thing? - No.

What clothes had they on? - One was in dark brown, or something of that sort to the best of my remembrance.

Did you take any notice of the colour of their horses? - I cannot swear to the horses again.

Can you with certainty say what horses either of them rode? - I cannot say.

Prosecutor. I beg leave to speak, he knows more, he knows the colour of them all three.

Court. But he does not say so.

Prosecutor. But he is wrong.

Court to Allen. You are not to take notice of any thing that is suggested to you unless it puts you in mind of speaking the truth, do you recollect the colour of any them, you told me not just this minute? - I would not say a wrong thing if I knew it.

Court. I would not have you upon any consideration, then do you or do you not recollect the colour of their horses? - I think one was a chesnut mare.

Recollect? - I think it was.

Court. You do not know the person who rode it? - No, Sir.

You cannot tell who rode the chesnut mare any more than any of the other horses? - No.

Then do you recollect any thing else? No.

ELIZABETH PRIOR < no role > sworn.

I live at the Red Lyon at Hillingdon, I know nothing any farther, than the same evening that Justice Fellows was robbed, three young men with the appearance of gentlemen came to my house, and asked me if they could have any tea, I said, yes, they asked me if they could put up their horses, I told them yes; at the back door I met a short man, he asked for a spare room, says he, can I have tea, says I, do you belong to the two gentlemen that came in just now, he said no; I shewed him into a parlour and when they went in to tea, they asked me if a gentleman was not come in, I said, yes, they desired me to go to him, and to give their compliments, and ask him, if he would drink tea with them, he said, no, he chose to drink tea by himself; they behaved like gentlemen, and went away about seven o'clock.

Jury. Do you recollect whether the prisoner is one of these men? - No, Sir, I really do not, I cannot swear to the gentleman, I took no particular notice of him.

Court to Prosecutor. You saw nothing of that third man? - No, my Lord, not after passing by me.

Court. Is not Hillingdon about fourteen miles from town? - Not quite, my Lord.

WILLIAM PATERSON < no role > sworn.

I only know that my master was stopped the very same night that Mr. Fellows was, between Southam and the turnpike, near eight o'clock as near as I can guess, or it might be between seven and eight.

Court. Southam is about nine miles from London? - About nine miles and a half, we were robbed near the ten mile stone about forty or fifty yards.

Court. How many were there that robbed your master? - Two.

Did you take any notice of them? - I cannot say I did, I only just saw the glimpse of one of their faces, the man that came up to me on my left-hand was dressed in blue.

Did you take any notice of his horse? - I cannot say I did in particular.

Which way did they go? - Towards London.

Court to Prisoner. Have you any witnesses, Sir? - Whilst I was in custody my Lord, I had several respectable gentlemen offered to come to my character, but having notice too late last night, I could not send to them; my Lord, by perusing the sessions on the trial of a young fellow, that has been already convicted for this same robbery, you will find Mr. Fellows has greatly contradicted himself.

Court to Prisoner. In what particulars do you say that Mr. Fellows contradicted himself, or swore inconsistently? - I have perused the sessions paper my Lord, and there he swore that the then prisoner at the bar, whose name is William Sharman < no role > , was a single man, and that no other man came up; he declared there he did not know the other man, nor should know him.

Court to Prosecutor. There was another man convicted last sessions who was on the left hand of you, and he says that you swore when that man was convicted, that your notice and attention was particularly fixed on that man, and that you could say nothing to the other man, whom you now say is the prisoner, and should not know him again? - No, I did not say I should not know him again; my attention was fixed on Sharman at first, but my attention was fixed on that man the prisoner, when he said give your watch to me.

Court to Jury. You hear Gentlemen what Mr. Fellows says, he says when this man demanded his watch his attention was fixed on him then.

Jury. We beg to send for a sessions paper.

(A sessions paper sent for.)

Court to Jury. (Looking at Mr. Fellows's examination before the Justice.) On the examination of Mr. Fellows before the Justice as to this prisoner, I see he says he is sure of both their persons, that William Sharman < no role > now under sentence of death was one, and that the other, which is the prisoner, and who goes by the name of John Burke < no role > , he is very positive was the other.

Court to Prisoner. Have you any other observation, Sir, that you would make before the sessions paper comes? - None at present, my Lord.

A sessions paper of the first part of last sessions handed to the Judge.

Court to Jury. I will read you the whole of Mr. Fellows's deposition, it is not very long.

(Here the learned Judge read the whole of the former deposition of the Prosecutor. See part 7, No. 1 page 797.)

Court to Jury. This is the part the Prisoner now alludes to. (Reads.)

"Did you pay your attention more to him than the other? - I did, because I had nothing more to do with the other than give him my watch, I did not see him till he came up alongside of the carriage."

Now this is the part the Prisoner pointed out, but the Prisoner has not only said the Prosecutor deposed he did not take much notice of the other, but that he said he could not swear to him if he saw him; which this paper does not say, and which the Prosecutor himself denies; you observe, Gentlemen, the Prisoner has called no witnesses, you hear his reason, that he had no time to call them, or else he had very respectable witnesses; and the Prisoner applies to the sessions paper with respect to Mr. Fellows's former evidence upon the trial of William Shareman < no role > being inconsistent with what he has said now; I have read the sessions paper, and though the Prisoner says that the Prosecutor swore that he could not speak to the man that came up on the right hand side and should not know him (which he now says is the Prisoner) yet you have heard the sessions paper read, which does not agree with the Prisoner's account, and Mr. Fellows has been asked, and he says positively he did not say that he could not swear to that man, but that his attention was then particularly fixed on the man that came up first to him; but, says he, when the other man came to take my watch from me, I attended to him; and he does most positively swear now his situation was such, that he can as positively swear to that man as the other; another thing is every material, you see the prosecutor was not called upon then to swear particularly to the other man, he had not seen the other man at that time, he was not taken: therefore it is almost improbable to think that the Court would be asking him as to the other man, nor does it appear that Mr. Fellows has sworn at all inconsistently; that he was robbed, seems to be exceedingly plain, you have heard his evidence, he seems to speak very correctly, though at the same time very positively; and he swears positively to the person of the prisoner; you observe he was robbed between the eight and nine mile stone, taking it from London, he was going to Uxbridge, and he tells you the men met him and they passed him: then you have in confirmation of that the evidence of two people, that three men, though not ascertained, were at Hillington, at seven o'clock, the hostler does not confirm any description of the men or the horses, nor does the woman, but she says two of them came in together, one did not come in then, but they all went out together; as to this third man there is no traces whatever, nor is it material, he was not concerned in the robbery, but it confirms that there were two men, one speaks to a blue coat; the coachman swears his master Mr. Baine was robbed, and the time of the robbery, and the circumstances of the robbery are for you to weigh; he swears however, his master was robbed about forty or fifty yards from the ten mile stone from London, that as nigh as he could guess to the time, it was between eight and nine; Mr. Fellows swore they methim, and passed him, and then turned back again, now that there was a robbery committed by two men, corresponds within a few minutes, or within a quarter of an hour to the time that Mr. Fellows was robbed; these are the circumstances for your consideration, Mr. Fellows swore positively to the men: he has had every caution given, and he himself is a magistrate; you are therefore to weigh his testimony from his positive oath, and from these circumstances that confirm it of two men being there at, the time; sorry I am to make the observation that there is not a creature to shew where this prisoner was at the time; I wish I could make any observation in his favor, but the circumstances that are against him are equally my duty to observe to you; you are to say upon your consciences, whether you think him guilty or not, and if you think him so, you will say so, if not you will acquit him.

GUILTY , Death .

Tried by the first Middlesex Jury before Mr. Justice NARES.