392. WALTER GROVES proceedingsdefend and ROBERT WELCH proceedingsdefend were indicted for feloniously stealing, on the 29th day of January last, three hempen sacks, value 6 s. and twelve bushels of oats, value 30 s. the property of James Brown proceedingsvictim and John Bovill proceedingsvictim .

And WILLIAM PARIS proceedingsdefend and THOMAS WILD proceedingsdefend were indicted for feloniously receiving the same, on the said 29th of January last, knowing them to have been stolen .

(Mr. Garrow opened the Case.)

Mr. Silvester Council < no role > for Groves.

Mr. James Council < no role > for Welch.

Mr. Chetwood Council for Wild.

Mr. Silvester and Mr. Peatt Council for Paris.

The witnesses examined apart, at the request of the Prisoner's Council.

JOHN FAREY < no role > sworn.

I am clerk to Mr. Brown and Bovill, in Milford Lane; I remember on the 29th of January, landing out fifteen quarters of oats, for the second troop of horse-guards, by Aaron Jones < no role > the carman, who is one of the parties indicted, though he is not in custody; it was to go to a stable near Portman Square: there were fifteen quarters in Jones's cart, William Lofton < no role > likewise had fifteen quarters, ten for the troop, and five for Squire Fellows's in Grosvenor Street.

Who was Groves? - I do not perfectly recollect him, he was the person that went with the cart as a trouncer, I did not know him nor Welch before.

Court. What is a trouncer? - A person that goes with the cart to help to unload, we have nothing to do with him, the man employs him.

Mr. Garrow. Have you at any time, seen any sacks that you have heard were found any where? - Yes, at the sign of the Cock, in Litchfield-street; they were Brown and Bovill's sacks, marked at full length; one of the sacks is marked Lofton.

Mr. Silvester. All that you know of this business, is that you sent thirty quarters of corn that day by these two carman? - Yes.

What they did with it you do not know? That I cannot say.

They were the persons intrusted by you, or your master, to convey it to the proper places? - Yes.

Your master is a very great dealer? - Yes.

He may have an hundred sacks abroad? - We never lend any sacks, we have no sacks but what we cannot do without.

You look entirely to the carmen to take the corn, and bring back the sacks? - Yes.

Have you known instances of their not bringing back the sacks? - Yes.

Mr. Garrow. On this occasion did either of the carmen pretend they had left them? - No.

Mr. Silvester. They are not here you know.

RICHARD GEARING < no role > sworn.

Where do you live? - In Newport-market; I know Wild and Paris, Paris lodges at the Boar's Head, in Newport market, and Wild lives at the Chandler's shop next door; they are what we call offalmen, to take care of the fat, and wipe the beasts clean, they take care of my beasts: I do not recollect the day of the month, but on a Saturday, I cannot tell the hour; I had been drinking all the afternoon with some friends; I did not observe any thing of those two prisoners, I did not see either of them.

Did you observe any thing appear at the Boar's Head, or at the chandler's shop? - No, nothing till I came out of the Boar's Head.

Court. You had been drinking there for two or three hours? - Yes, I had, as I came out of the house, I saw three men, with three sacks on their backs, and I came away about my business.

Do you know who the three men were, or either of them? - No, Sir, neither of them.

Mr. Garrow. What sort of sacks were they? - I did not take any particular notice.

But you can tell me whether they were coal sacks, or corn sacks? - They were not black sacks.

I believe you gave an information to Mr. Roberts? - No, Sir, I did not.

Court. What was done with those three sacks? - I do not know, they were carrying them as I suppose, they were about ten yards off when I saw them, going towards the shop.

Had not you the curiosity to look and see where they went? - No, I was sent for over in a hurry to a customer, I cannot be sure whether they went into the house or not.

Mr. Garrow. You know Mr. Roberts? - I have served him with meat.

Do you remember any conversation with him that night, about these sacks being carried to the Boar's Head? - I told him I saw three men with three sacks on their backs.

Where did you see them? - In the Boar's Head, half an hour after I saw the men with the sacks.

Can carts come up to this Boar's Head? - Yes.

Were there any carts there at the time? - No.

Was you present when the apartments of either of the prisoners, Wild or Paris, were searched? - No.

Mr. Silvester. You saw three men with three sacks? - Yes.

Mr. Peatt. If I understand you right, you say that you suppose only that they went into the Boar's Head, and that you saw them about forty yards from the door? - Yes.

ELLIS ROBERTS < no role > sworn.

I live in Archer-street, St. James's; I belong to the Rotation Office, in Litchfield-street, I apprehended all the prisoners, on the 29th of January; I took Wild first, about eight in the evening, at the Boar's Head, in Newport-market, and I found in the one pair of stairs of the Boar's Head, three sacks of oats.

Are the sacks here? - Yes.

Court. Did you find those sacks before you took Wild? - I saw them before I took Wild, and then I took him in the tap room, and took him to the Cock Alehouse; when I took him, I asked him if he knew any thing about the corn, and he said there were some men there, that came in and brought it on their backs, and went up stairs with it; I asked him if he knew the men, and he said he did not, but he described one man particularly by having a high heeled shoe, and he said he came from Milford-lane.

Do you know any body that answers that description? - Groves the prisoner has a high heeled shoe; Wild offered to go with me, but I said there was no occasion for him to go, if he would give me a direction; when I took Groves, I took him to the watch-house, he denied knowing any thing of it; it was about twelve o'clock: when he was before the Justice, he said he was employed by Lofton and Aaron Jones < no role > , to assist them in delivering some corn at the Life-guard stable, one part, and the other part of it to Justice Fellows, in Upper Grosvenor-street; he said that Lofton was concerned with him in taking and delivering this corn.

What do you say, taking? - At last he did own he carried up a sack.

Court. Did he say he delivered any corn any where else? - He said he carried one sack to the Boar's Head, and Welch < no role > another, and Jones < no role > the third.

How many more did he say were carried by any body else? - Two more he said were carried there, one by Aaron Jones < no role > and the other by Robert Welch < no role > .

Mr. Garrow. When did you take the other prisoners? - The Sunday morning following, at twelve o'clock, I took Paris and Groves; I took Paris at the Boar's Head, the Sunday morning following.

What did he say? - I told him to come to a public house, and he came, I told him he must come with me.

Did Paris say any thing about the corn? - Neither then nor any time since. (The sacks produced.) These are the sacks that we found at the Boar's Head, there were oats in them: the same night I went to Wild's lodgings, I found a sack of oats up one pair of stairs.

How is it marked? - E. Burnell.

Court to Farey. What do you say to that mark? - We cannot say any thing to it.

Look at the other sacks, and tell us whether these are your master's? - The other two are, and that with the L, which is marked for Lofton; we had sacks for the carmen, and those were for Lofton, but it is a good while ago, and most of the sacks are lost.

Was there that one remaining on the 29th of January? - No.

Where was the corn emptied out of those sacks? - When first I saw the sacks, the corn was in them, up one pair of stairs.

As near as you are able to identify, was it the same corn? - Yes.

Mr. Silvester. It was the same kind of grain I fancy; horses eat oats do not they? - Yes.

Court. Had you a sample with you when you went? - Mr. Bovill had I believe.

Mr. Silvester. Does Mr. Bovill grow his own corn? - No.

Mr. Peatt to Roberts. You did not see any thing of Paris, on the Saturday evening when you saw the corn up stairs? - No Sir, I do not know him.

Mr. Silvester. You would have known nothing of Lofton, if Groves had not told you? - No.

Was the room at the Boar's Head locked? - No.

MARY SELBY < no role > sworn.

I keep the Boar's Head, in Newport-market, I know Wild and Paris.

Did either of them lodge at your house, on the 29th of January? - William Paris < no role > did.

In what part of the house? - In the first floor; I was not below when they took the corn, it was taken out of Mr. Paris's room; Wild lives at the next door in the first floor.

What business are they? - They are people that bring home meat from market; and are called butchers.

Mr. Peatt. Was Paris at home on Saturday evening? - I heard a dispute between him and his wife, about his staying out so late, it was ten minutes after twelve; there was a very thin wainscot.

JOHN BOVILL < no role > sworn.

I am partner with James Brown < no role > , I can swear to three of these sacks, that with the diamond and the L is one of them, the reason of its being marked with an L, is that we formerly lost so many sacks, that we made our carmen masters of the sacks, and therefore we had them marked with the initial of each carman's name, I believe we had a great many more L's, I dare say we have a good many more on the premises; I saw the corn in the sack, at the Cock, up one pair of stairs; I afterwards compared it with a sample: I saw three sacks full of oats at the Cock, which I knew to be the same oats that we had sent the preceding night, to the second troop, and to Squire Fellows's; to the best of my knowledge they are Essex oats, and had a sprinkling of wheat amongst them; I afterwards took a sample out of the bag and compared them, and they were exactly the same, if it was possible to swear to grain I would swear to them: Groves formerly lived a carman with us, he was discharged six or seven years ago: Paris and Wild I never saw till this circumstance.

Mr. Silvester. These were Essex oats? - Yes.

A great many oats grow in Essex? - Yes.

These were not bought at the Corn-market? - Yes, I believe I buy four fifths from Essex.

The others are bought by other persons? - No doubt of it.

The same farmer may send them to market, and some may come to my hands? - That may be the case.

You have a great many of these sacks not only at home, but about this great town? - Most clearly.

Mr. Garrow. My learned friend has asked you a good deal about Essex oats, because he is an Essex farmer; if they sell him oats from Essex, they do not send them in your sacks? - No.

Mr. James. My Lord, I am Council for Welch only, and I submit there is no evidence of his being present.

Mr. Silvester. My Lord, I beg leave to take an objection before the accomplice is admitted to give his evidence: In all felonies two propositions must be clearly established; first, whether the felony is compleatly made out, and secondly, if so made out, whether such felony was committed by the prisoner; now I submit the first of these propositions is incomplete, because they have not called the persons to whom this corn was to have been delivered, in order to prove that it was not actually delivered, for what evidence have the Jury to say, that the whole of this corn put into the cart, was not delivered at the Horse Guards, and to Mr. Fellows; and if it was all delivered, there could be no felony of the corn.

Mr. Garrow. My Lord, Mr. Silvester is now arguing upon the effect of the evidence, but I beg leave to say, that at present there is sufficient ground to let in the evidence of the accomplice to go to a Jury: on the evening of the 29th of January, a certain quantity of a specific quality of corn, was put into the carts of the prosecutors, that specific corn in those very sacks, is afterwards found in a place, to which it was not sent by the owners, and to which it could not be carried but wrongfully; I say that would be evidence to go to a Jury, and I submit I am entitled to call the accomplice; the Jury will consider by and by, the weight of all this; but you will see that I could not in the nature of things, call witnesses to prove this delivery, for those whose duty it was to see it delivered, do not know that it was not delivered; for they were imposed on by the tale the sacks corresponding, and believed that the whole quantity was actually delivered.

Mr. Justice Gould. I do not conceive that Mr. Silvester is irregular in observing on the evidence now; if there is a felony committed, there is evidence to let in the accomplice; but it would be extremely material to shew, that instead of the whole being delivered, only so many sacks were delivered: ought not a Jury who are trying people for felony, attended with prodigious consequences, to say that you shall furnish us with such evidence, that they are sure when they come to pronounce their verdict, that nothing shall remain on their consciences?

Mr. Garrow. Without judging of the effect of the evidence, which is the peculiar province of the Jury; I submit there is a probable ground for the Jury to say, a felony has been committed by some of the prisoners at the bar; if that is so, that is enough to let in the weight of the accomplice, and there are Judges your Lordship knows, that would call in the accomplice first.

Mr. Silvester. I always understood that there must be positive evidence of the felony committed, before the accomplice's evidence can be received, and then the Jury will judge of the circumstances; but there must be a felony proved, for how can the Jury first presume a felony, and then presume a man guilty of that felony.

Mr. Justice Gould. My notion of the law concerning an accomplice is, that a man who is not indicted, although a partaker in the guilt, may be a competent witness; but it is not fit for the Jury to convict upon such testimony, therefore to be sure the strictness of the law is to bring proof of the felony being committed; to be sure as he is a competent witness, you may set out with him, but then what will a Judge say to the Jury? therefore it is my constant course of practice, and I know many other Judges that do the same, not to call the accomplice first; it is a vain thing: and therefore, before you call the accomplice, you are to lay a foundation. In this case, the ground of your charge is this, that out of the specific quantity of oats, sent on Saturday night to the second troop of Horse Guards, and to Mr. Fellows, three or four sacks were stolen; then does it not present itself to every man's mind, that the best evidence to inform the Court and the Jury upon that occasion, is to call some of those people from the Horse Guards, and from Mr. Fellows's, to shew that there was not in reality the whole of that quantity delivered, but only a certain part of it, and some empty sacks thrown in to make out a tale of sacks, for so it was opened, and I take it for granted, it should be proved; but that is left behind, he does not chuse to call a witness that he has upon that subject, because he does not conceive it will answer his purpose; therefore I say, you have not laid that evidence before the Court and Jury, which would have proved a felony to have been committed, for as it now stands, these men might have had these three bushels, and sacks of oats by others means: Mr. Rose is of the same opinion with me, therefore, I think for want of that evidence which is necessary to make the felony complete, the accomplice cannot be received, and the prisoners must be acquitted.

ALL FOUR NOT GUILTY .

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