233. DANIEL CLARK proceedingsdefend was indicted for feloniously and burglariously breaking and entering the dwelling house of Richard Garrett proceedingsvictim , between the hours of four and seven in the afternoon on the 2d day of February last, no person being therein, and burglariously stealing therein thirty-six yards of linen bed furniture value 40 s. three pair of linen sheets value 30 s. seven linen shirts value 20 s. sixteen muslin neck-cloths value 16 s. two linen nightcaps value 2 s. one pair of worsted stockings value 12 d. one pair of silk stockings value 5 s. one pair of silk gloves value 6 d. two linen handkerchiefs value 2 s. one silk handkerchief value 1 s. one cloth coat value 20 s. two cloth waistcoats value 10 s. one pair of breeches value 10 s. one pair of silver shoe buckles value 3 s. one pair of stone shoe buckles set in silver value 3 s. one silver watch value 40 s. one other silver watch value 20 s. a silver pint mug value 50 s. three silver table spoons value 30 s. and six silver tea spoons value 6 s. the property of the said Richard .

RICHARD GARRETT < no role > sworn.

I live in Holywell-street, Shoreditch ; I left my house about four in the afternoon on the 2d of February, I returned about eleven at night; I am sure the house was fast and double locked when I went out, there was nobody left in the house; when I first put the key in the outside gate I found it had been opened, the bar was down and the street door wide open; it was quite light; I pulled to the door and called in the watchman, and we found the front door forced open, and the lock wrenched, and the staple forced away, it was wrenched out, and the locks up two pair of stairs were all open; I lost all my wearing apparel, except what I have on my back now; I lost all the things mentioned in the indictment.

Mr. Sylvester, Council for the Prosecution. What was the value of all the things you lost, have you made any calculation? - I cannot rightly tell; the mug and spoons about 3 l. two pair of silver shoe buckles value 10 s.

JOHN ARMSTRONG < no role > sworn.

I am a constable, on the 2d of February, between six and seven at night, Mr. Harper and me, the officers for Shoreditch, were walking along, and we saw the prisoner, and Harper says to me, here comes Daniel Clark < no role > ; says I he has some property upon him; as soon as he saw us, he tried to avoid us; we let him pass; he came to the place called Dirty-lane, he turned up there with his face to the wall and his back to us, as if going to make water, and I think he said, what is the matter, Sir; I said, nothing, do not be alarmed; when he saw the other come up, he threw down the bundle and ran away, there was a woman at a house door, and he pushed a person on one side and ran in, and he immediately shut the door; the other officer came up to the door and said, where is the man that came in here? says the woman he came in and said for God's sake, save me, hide me, and so I opened my back door and he is gone; I then went out, and there were two walls, and he had got over two doors, and we found him in another woman's cellar; a woman came out from another house, and begged we would come in for there was a man in the cellar; says I, that is the man, we will take you to a magistrate; the other officer was in company, and we took him to Justice Wilmot's, the Justice was not at home, and the prisoner wanted to leave a sum of money for his appearance, he wanted to go to the watch-house, but my brother officer had known him some years, and said, he would take him to gaol, the next morning the prosecutor came to Justice Wilmot's, the property was produced, and he swore to it.

Jury. You saw the things fall from the man? - I saw him throw them down.

- HARPER sworn.

I can only repeat what Mr. Armstrong has told you, I knew the prisoner, and he did not, I said, here is Daniel Clark < no role > , says he, do you know any thing of him, yes, says I, I do; he went to him and talked to him, I heard them talking together, and he threw down a bundle.

Court. Did you see him throw down the bundle? - Yes.

What did you do with it? - I have kept it in my possession ever since, this is the same.

(The things produced and deposed to.)

Court to Prosecutor. Can you take upon yourself to swear whether the things were or were not there when you went out? - Yes, my Lord, they were all there, and the door locked.

Court. What was the value of all you lost? - About ten pounds.

Have you any linen bed furniture here? - No, only a few shirts, and neckcloths, and one pair of sheets.

Prisoner. There were a hundred people in this yard, and they said, this is the man, and that is the man, and the other is the man; and I was brought out of the house, and then they said I was the man.

Court to Harper. Did you ever charge any other man with being the man? - No.

PRISONER's DEFENCE.

I was drinking at a public house, I was never out ten minutes from three o'clock in the afternoon, till this affair happened, I have not a soul here, I have a list of the people to my character, there is the man at the public house, that they know, that came and took his oath that I was at his house, there was a great many people in the house, that will swear I was not out of the house ten minutes in the course of the time.

Court to Jury. Gentlemen: Upon indictments of this sort, there are in general three questions very material to be attended to, the first is, as to the fact of breaking into the house, and to that Mr. Garret says he left the house perfectly secure when he went out, and when he came home the door was broke open, the lock forced, and the staple wrenched out, if that he so, it must have been done by force, then there is no doubt but the house was actually broke open; the next question is, whether there was any person in the house at the time, to that you have the prosecutor's evidence also: the next question is, as to the value; now where the house is broke open in the day time no person being in it, it makes a very material difference as to the degree of guilt and the degree of punishment, for if the value does exceed five shillings, in that case it is capital; the articles now produced are much above that sum, and therefore, if you are satisfied with this evidence, you will find the prisoner guilty, if not, you will acquit him.

GUILTY , Death .

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