237. JOHN FOX proceedingsdefend and JOHN JONES proceedingsdefend were indicted for feloniously stealing, on the 16th day of January last, five weather sheep, price 50 s. the property of John French proceedingsvictim .

JOHN FRENCH < no role > sworn.

I live at Carnaby-market ; I am a butcher ; on the 16th of January, in the afternoon, I missed five weather sheep, which should have been in a stable; I enquired after them and offered a reward; my drover gave me hints and suspicions that they were killed at some butcher's, I thought I should know the mutton, I searched several shops on the Saturday morning, that I thought did not sell extraordinary good meat, and I searched one shop, and there I found two large hind quarters of mutton, at the shop of Edward Davis < no role > , one of the witnesses: those hind quarters answered in my own mind, for we can form some little judgement, but not enough to swear to the mutton; however I thought they were mine; I asked Davis, whether he killed in his own cellar, he said, no, in Drury-lane; his wife shewed me backwards to the yard; I then went to a neighbouring butcher's shop and enquired the character of this Davis, and I applied for a search warrant at Bow-street, I employed two men to watch the house while I was gone, that nothing came out; Sir Sampson would not grant me a warrant till I swore I believed the mutton to be mine; we then searched the house, and found hid under the cellar stairs in dirt, I imagine concealed, four sheep skins; I examined them had a knew them to be mine, they had a private mark of my own, and one of the owners; the skins had laid so much in the dirt that I could not swear to them; the large sheep had very broad oaker upon it, and I am sure, in my own mind, that all four were mine; on searching the house farther, I found a pair of hind quarters of mutton concealed in a bedstead; I also found a pair of fore quarters in a dirty place, which were very dirty, and which they said had been gnawed by the pigs: Davis was not there when they were found; he went out, after he had told me where he killed, under pretence of going to a customer in Pall-mall: Davis absconded.

Court. Do you know any thing of either of the prisoners? - No; one of the prisoners came near the place on the Saturday morning, when we and the warrant and Sir Sampson's it proper to apprehend him, but he was dismissed.

When was taken? - I do not know; It was by Sir Sampson's order; the sheep skins were certainly mine.

EDWARD BROZEY < no role > sworn.

I am a drover; I put ten sheep in Mr. French's house the 14th of January; I have seen the sheep skins shewn me by Mr. French; I knew them again; they are Mr. French's skins.

Court to French. Were the skins you shewed that witness, the same you found in Davis's house? - They were the same skins.

Court. Do not permit the witness Davis to go out of Court, look to him.

JOHN TOWNSEND < no role > sworn.

On Saturday, the 17th of January, French came up to the office for a search warrant, to search a butcher's shop in Exeter-street; it was granted, and I, in company with another officer, went down; we searched as narrowly as we well could search; while French was searching up stairs, I and another officer was searching below, and underneath the stairs, I stepped my foot in a puddle of water, it was a very nasty place, and there were four sheep skins underneath the stairs; I immediately called down French, he came and looked at them, and said they were his property; I found nothing else in the house but what Mr. French found above; there was a vast quantity of mutton.

When was Davis apprehended? - That day, while French was getting the sheep skins and best part of the mutton which he said he believed to be his; one of the prisoners whom I knew before, and another man in company with him, came near the shop; says I, what is the reason of their lurking about the shop; I came up with them, and they whipped into a public house, and I brought them before Mr. Justice Gilbert, but there being not a tittle of evidence to affect the men, they were discharged; that night I was in search of Davis but did not find him; one of the captains of the patrol knew Davis, and Davis sent him a note that he would resign himself up upon conditions of no harm coming to him, and he would tell of whom he got the five sheep; and in consequence of that the two prisoners were apprehended afterwards; it was the patrol that gave him the promise.

Court. I shall not examine Davis < no role > the witness, because he is the man that ought to be prosecuted.

Townsend. I do not know whether the patrol promised him any sort of favour if he would resign himself; the patrol is not here.

Court. Davis was a man known by the patrol, was not he? - Very well, he had been abroad with him.

You could have taken him up in a few days? - Yes, my Lord, unless he had left the country.

Where is that patrol? - He is at the office, his name is Allen.

Prosecutor. The wife of Davis said that he was going to Portsmouth, but would return if I would shew him favour, for he said, death was preferable to exile, or something to that effect.

Court to Townsend. How came any of your officers to presume to do any such thing without the advice of the magistrates? - I cannot say, I was not at the apprehending of either of the prisoners.

Do you know what answer was sent to Davis's information, or how he was taken up? - I believe that he came to the office the very day that Allen sent for him.

But how could Allen presume to send for him without the authority of the magistrate?

Court. Gentlemen of the Jury, in this case it is certainly, at least unnecessary, if not improper, to examine Davis; there is full evidence against him from these witnesses to prove him at least an accomplice, if not a principal in this fact himself, therefore the evidence of him as an accomplice, stands in such a light in point of law, that it cannot be received, as the law will not admit any person to be convicted on the single testimony of an accomplice; there is not now one tittle of evidence against either of the prisoners, and you could not, in point of law, convict them on the evidence of Davis, there being no other circumstance against them.

BOTH NOT GUILTY .

Court. Let Davis the witness be detained.

Mr. Justice Gould. I have known multitudes of these improper instances.

Mr. Recorder. Magistrates should be very cautious who they admit as evidence, not to admit those against whom there is clear evidence, unless they have reason to think important discoveries can be made.

Court to Davis. There is the most clear and satisfactory evidence to the Court, that you, whatever the other prisoners might be, are guilty of this offence, and if you had been in the situation of the prisoners you would have been convicted, therefore take warning; but having surrendered on the assurances of this man, however improper, the Court will not now proceed against you, but it will be remembered if you should be found guilty of any thing again; for you are much more guilty than these men, as you are a shop-keeper yourself. - Let him be discharged, but let the officers keep an eye over his conduct.

Mr. Justice Gould. The officer ought to have gone to the magistrate and asked his advice about it.

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