360. MARTIN CLINCH proceedingsdefend and JAMES MACKLY proceedingsdefend were indicted for the wilful murder of Sidey Fryer proceedingsvictim , Esq . on the 7th of May .

(The indictment was opened by Mr. Abbott, and the case by Mr. Knowlys).

Miss ANN FRYER < no role > sworn. - Examined by Mr. Ward. Q. I believe you are a relation to the unfortunate young gentleman, who is deceased. - A. Yes; cousin.

Q. I believe, on Sunday the 7th of May, you and your cousin went out together? - A. Yes.

Q. Be so good as state slowly all that took place on that evening? - A. We set out from Southampton-buildings, Holborn, and walked through the fields beyond White Conduit-house, towards Islington .

Q. How far had you got beyond White Conduit-house when any thing struck you as worthy of alarm? - A. To where the unfortunate accident happened, about three quarters of a mile.

Q. Inform these gentlemen of the Jury the manner in which the accident took place? - A. When we came to the style, near which the accident happened, I observed to Mr. Fryer that I heard a noise.

Q. From whence did that noise proceed? - A. From the right hand; and he stopped with me to listen; he said, there is, and immediately went over the stile to where he thought the voice proceeded from.

Q. How far were you from the stile when you observed to Mr. Fryer that you heard this noise? - A. About four yards.

Q. Immediately upon your making that observation, Mr. Fryer went over the stile? - A. Yes.

Q. What did you do when Mr. Fryer went over the stile? - A. I followed him towards the stile.

Q. When you came up to the stile, what did you observe? - A. I saw a man, I think, about four yards on the other side of the stile.

Q. Do you mean by that, that you saw the man at the time you came up to the stile, before any thing took place? - A. Yes.

Q. Had you an opportunity of observing him at that time? - A. Yes; Mr. Fryer asked him what he was doing; the man spoke to him, but I cannot tell what he said.

Q. What did you then observe? - A. He shot him.

Q. How near was Mr. Fryer to him at this time? - A. The man was quite close to him, and put the pistol under his hat.

Q. Do you mean that you saw the pistol? - A. A. I saw the flash that proceeded from it, and heard the report, but did not see the pistol, because his hand was over it.

Q. As soon as it was fired, what was the consequence? - A. Mr. Fryer immediately fell.

Q. Where did he fall? - A. Into a small pond.

Q. Was it on your right or your left hand? - A. On my right hand.

Q. Then Mr. Fryer had his back towards you? - A. No; he stood side ways, and the man stood with his face towards me.

Q. Had you then an opportunity of observing his face? - A. Yes.

Q. The upper part of his face? - A. Yes.

Q. Was any thing about the lower part of his face? - A. Yes; a silk handkerchief.

Q. How high did the silk handkerchief come up? - A. It covered his mouth.

Q. What then took place? - A. When Mr. Fryer fell into the pond, the man that had discharged the pistol advanced towards me, and then turned on his left towards the pond, and took the watch out of Mr. Fryer's pocket; then he came to me.

Q. You had never changed your position? - A. No; I had never left the stile.

Court. Q. You were standing on a different side of the stile from Mr. Fryer? - A. Yes.

Mr. Ward. Q. You were close to the stile, though you did not get over? - A. Yes; he then came up to me with a pistol, and desired me to deliver my money; my hand trembled, and I could not get to my pocket, he said, make haste, give me your money; and I gave him my purse, with some money in it; he then went off, and I got over the stile.

Q. As soon as you got over the stile, did any thing else happen? - A. About three or four yards from the stile, I met another man; he asked me for my money, I told him I had given it.

Q. Did he make any reply? - A. He said, give me your cloak.

Q. Did you give him your cloak? - A. I do not know whether he took it, or I gave it him; and then the man, that shot Mr. Fryer, said, come on.

Q. Did they both go away together? - A. He followed him, when he called to him to come on.

Q. Had you any opportunity of observing the features of the second man? - A. I did not observe his countenance.

Court. Q. Not so as to be able to know him again? - A. No, not by his countenance; his person I recollect.

Mr. Ward. Q. As accurately, as you can recollect, describe the first man? - A. He was rather inclined to be lusty.

Q. Was he tall or short? - A. A middle-sized man.

Q. When did you first see that man again? - A. At Worship-street.

Q. Look at the prisoners at the bar, and see if either of them is that man? - A. Yes; the shortest man in the blue coat(Clinch), I believe, from my soul, to be the man.

Q. Have you any doubt, in your own mind, that the man in the blue coat is the man whom you observed previous to your going up to the stile, whom you saw shoot Mr. Fryer, and afterwards rob you? - A. No, I have no doubt.

Q. With respect to the other man, be so good as describe him as well as you can? - A. He was a tall man, a great deal taller than the other man.

Q. Where did you see him again? - A. At Worship-street; the prisoner quite resembles him in his person, but I did not see his countenance.

Q. The tallest man at the bar resembles that man? - A. Yes.

Q. Were these the first men that you saw, to examine whether they were the men that had committed this offence? - A. No; I saw three men at Bow-street. I was sure they were not the men; I saw them on the 16th of May, before the sitting Magistrates.

Q. Did you see the deceased shortly after? - A. Yes.

Q. Was there any wound? - A. Yes; I saw his head bloody in the field, but I did not look at the wound then, I spoke to him, but he could not answer.

Cross-examined by Mr. Const. Q. I observe you speak very positively to the person of one of those men-have you always been as certain? - A. Yes; from the first time I saw him.

Q. You mean when he was in custody? - A. Yes.

Q. Had you sufficient recollection of the persons as to describe them? - A. I did, within two days after the accident happened.

Q. To whom? - A. To a relation of Mr. Fryer's, and another person.

Q. Are either of these gentlemen here? - A. Yes, Mr. Brown is.

Q. Describe him now? - A. The upper part of his face appeared to be very broad, and he was rather lusty.

Q. If I understood you right, you said he had a silk handkerchief over his face, from his nostrils down? - A. It might be so, but I said over his mouth.

Q. Had he a flapped hat? - A. A round hat.

Q. Therefore you could see but a small part of his face? - A. I could see half his face.

Q. That part of it that was between the hat and the top of the handkerchief, no more than that? - A. No.

Q. You saw the middle part of his face? - A. I saw his eyes, and part of his forehead.

Q. Did you observe what hair he had? - A. No, not the colour of his hair.

Q. Can you take upon you now to say, whether the man, you described, had short hair or long, from your recollection, I mean? - A. I am pretty sure he had long hair.

Q. The pistol you could not see? - A. No.

Q. It was a dark evening? - A. No; it was a very fine evening; it had been a bad day, but it had cleared up.

Q. When the flash took your attention, you could have seen the pistol? - A. No; his hand covered almost the whole of it.

Q. Then you did not see any part of it, not the barrel of it? - A. No.

Q. Do you remember afterwards going to a public-house there, a Mr. Rice's? - A. I do not know the name, I went into a public-house.

Q. Do not you remember enquiries, natural one's, being made of you, to describe the persons? - A. I do not remember that there were.

Q. Do you recollect being asked what kind of persons they were? - A. No.

Q. Do you recollect whether you said you could not at all describe them? - A. I do not recollect.

Q. Will you take upon you to say that you did not say so? - A. No; I was much confused.

Q. You staid there, I believe, more than an hour? - A. I do not think I did stay so long; I thought that was of no service when the surgeon came; I could not give any account of it that day, not the day after.

Q. You must have been quite as much confused the moment of the accident? - A. No; I was more collected, upon the instant, a great deal, than I was afterwards; I was so collected, that I sent for persons to his assistance, and for a surgeon to take care of his wound.

Q. I understand you, that, at the time it happened, and when Mr. Fryer lay in this disagreeable situation, you were so collected, as to observe all these circumstances, and yet afterwards, when you had disposed of him as properly as you could, you could not recollect circumstances so strongly as you had before? - A. No; I was not asked to give an account of his person, though his person was never out of my mind.

Q. I am speaking of the time when Mr. Fryer received his accident? - A. I was collected enough to observe every thing that passed.

Court. Q. That is, that you were more collected at the time of the accident, than you were afterwards? - A. Yes.

Q. Your first examination was before the Coroner? - A. Yes.

Q. Did you give your evidence then as accurately as now? - A. I believe I described the money I had in my pocket; I said I could not describe their features; I was asked if I should know the men; I said, I could not describe them, but I believed one was lusty, and had on a darkish coat.

Q. Did you use words like these, that you could not take upon you to describe either of them, but that you thought they were both lusty, and one in a dark coloured coat? - A. I believe I did not say both, I said, one was lusty; I am pretty sure I did not say both.

Q. Will you take upon yourself to say, upon your oath, that you did not say they were both lusty? - A. I cannot say that I said so before the Coroner, nor I cannot say now, that they were both lusty, or that they were not.

Court. Q. You do not think you did say so before the Coroner, that they were both lusty? - A. No, I did not think I did.

Court. Q. Can you take upon you to say whether before the Coroner you described their persons? - A. I cannot believe that I said they were both lusty.

Mr. Const. Q. When he came up to you, you say he held a pistol to you? - A. Yes.

Q. Did you see the pistol then? - A. It was something, I have no doubt it was a pistol, it was very short.

Q. You only think it was a pistol, because it was very short? - A. I have no doubt it was a pistol.

Q. Merely from that circumstance? - A. I saw that it was short, and I have no doubt of it; I supposed it was the pistol he had shot Mr. Fryer with.

Q. Then you know it was discharged? - A. Yes, it was discharged.

Q. Whatever you said before the Coroner, you signed and left it? - A. Yes.

Q. How long was that after the accident happened? - A. I think it was the very next day, on the Monday.

Q. The first place at which you saw these men was at Bow-street? - A. No; Worship-street.

Q. Were you as positive to them the first time you saw them as you are now? - A. Yes, I was, indeed.

Q. Then afterwards you saw them at Bow-street? - A. No, I did not.

Q. Was your examination taken down the first time you were there? - A. I fancy it was.

Q. Did you sign it there the first time? - A. I believe I did; yes, I did.

Q. Were you there more than once? - A. I was there twice.

Q. Did you sign any deposition the second time? - A. No, I did not.

Q. These men were not taken up from any information you gave of them? - A. No.

Q. You found them in custody? - A. Yes.

Mr. Ward. Q. You were examined before the Coroner the day after the accident? - A. Yes.

Q. What was your state of mind at that time? - A. Very much agitated of course upon such an occasion.

Q. Were you as collected as you were before? - A. No. (The examination before the Coroner read.) Middlesex to wit.

Depositions of witnesses, taken the 8th of May, 1797, at the house of William Rice < no role > , the sign of the King's-arms, in Park-place, in the parish of St. Mary, Islington, in the said County, on view of the body of Sidey Fryer < no role > , Esq.

ANN FRYER < no role > (being sworn and examined upon her oath) saith, that the deceased was a relation to this deponent; that a little before the hour of eight yesterday evening, the deceased and deponent took a walk together into the fields, near White Conduit-house; that, about half-past eight, as the deceased and this deponent came along the foot-path, leading from White Conduit-house to the back road; when they came to a stile near the field, called Cricket-field, and in a field, called Work-housefield, they heard a noise of a female as if in distress; that deponent had expressed an alarm, at going across the field at so late an hour, that the deceased got over the stile, and the deponent stopped close to the stile, when she saw a man with a silk handkerchief tied over the lower part of his face, and a pistol in his hand; some words past, but the deponent, not having come over the stile, could not distinguish what they were; almost at that instant, the man fired a pistol at the head of the deceased, and he fell into a pond; the man took the watch out of his pocket, and then came to her, and took from her a leather purse, with ten shillings in silver in it; that deponent was going to the assistance of the deceased, when another man came up to her, and bid her deliver her money, but does not recollect whether the second man had a pistol, but he also had a coloured handkerchief, and upon deponent saying, that she had given all she had, he took a black silk cloak from her shoulders, and thenran off together, but from her confusion, she did not observe which way they went; that she sent for Mr. Jefferson, a surgeon, that the deceased died about eleven o'clock the same evening; deponent cannot describe the men, but thinks they were both lusty, and one had a dark coloured coat on.

JOHN JEFFERSON < no role > sworn. - I am a surgeon, I was called upon on the 7th of May, to attend a gentleman who had been wounded.

Q. Where was he wounded? - A. A little above the left temple.

Q. Was that wound the occasion of his death? - A. I have not the least doubt of it.

ELIZABETH GODDARD < no role > sworn. - Examined by Mr. Knowlys. Q. I believe you and your husband have a house at Paradise-row, Islington? - A. Yes.

Q. Were you returning towards town? - A. Yes; we came out about twenty minutes before eight o'clock.

Q. Was Mr. Goddard and your sons with you? - A. Yes, they were.

Q. Tell us what happened? - A. Before I came to the bank, across the first or second field, I saw a man on the other side; we came up to the bank, I was going to get over the bank, but on seeing the man, I drew back, and got over at another part of the bank; I crossed the lane, and came to a rail step, and crept through it, and I directly saw another man in the lane, who went up the lane, we passed by, and saw them no more.

Q. Was that lane a thoroughfare or not? - A. I fancy it is no thoroughfare; if it is, it is a very private one.

Q. Did any thing draw your attention to these men, to look at them? - A. Not particularly.

Q. Did you look at them? - A. I did not look at them before I came to the bank, but not so as to know them.

Q. Did you afterwards see any persons at Worship-street? - A. Yes; I saw two there, and I thought, to the best of my recollection, one was the person I saw go up the lane.

Q. Did you observe how he was dressed? - A. Not particularly; I saw the side of his face, and I thought he had carrotty hair, and his hat was rather over his face.

Q. Did you observe the dress of the other man? - A. I observed the dress of the other man more than I did of him.

Q. How was he dressed? - A. He had a brown coat on and a light waistcoat; whether it was white or something mixed, I do not know.

Q. Do you see any body in Court That you think at all resemble those persons? - A. (Looks at the prisoners). That man in the carrotty hair is very like the person I described, but I don't attempt to say it is; I think he is very like the persons. I saw in the lane, put I don't pretend to say it is him.

Q. Can you say any thing with respect to the other man? - A. I cannot say exactly, I saw both their faces, but I did not take any notice of them; it was the man with the carrotty hair that went up the lane.

Q. Have you seen the spot where this unfortunate affair happened? - A. I have seen the spot.

Q. How far is the lane from that spot? - A. I can hardly tell, it may be upwards of 200 yards, or there abouts.

Q. At what time was this? - A. It was about twenty minutes before eight, when I left my house, and it is not above ten minutes walk from my house to the lane.

Q. Cross-examined by Mr. Knapp. Q. You never saw the faces of them? - A. I saw both their faces, but I did not take particular notice of them.

Court. Q. Did you see them pretty plain? - A. Very plain; but I did not take that particular notice.

Q. Did you take notice of the height of them? - A. Yes; one was taller than the other, much.

Q. Now, who was the tallest? - A. Him with the red hair, him that was in the lane.

ROBERT GODDARD < no role > sworn. - Examined by Mr. Ward. Q. I believe you were walking with your wife, from your house, in Paradise-row, on the 7th of May? - A. Yes.

Q. In the course of that walk, did you observe any men? - A. Yes, I did; I observed two men, it was about half past seven o'clock.

Q. Describe the place where you saw those two men? - A. The place was in a lane; there is a path runs across, which leads to Copenhagen-house, it is within a field or two of Paradise-row, Islington.

Q. Do you know the name of the lane? - A. I don't know the name of the lane.

Q. You have seen the spot where this unfortunate transaction took place? - A. Yes.

Q. Who pointed out the place to you? - A. Miss Fryer.

Q. How far do you suppose the place, where you saw those two men, was from the place Miss Fryer pointed out to you? - A. Nearly two hundred yards, as near as I can imagine.

Q. Was it further from London or nearer? - A. Further from London. - As we were coming from Paradise-row, we observed one man standing in the lane opposite to us as we were on one side of the bank, and when we got up to the bank it was very high, and I found it was a very difficult matter to get over; I told Mrs. Goddard it would be impossible for her to get over at that place; I jumped over the bank myself, and the man turned hisback upon me; I went round the corner to assist my wife down the bank, and I saw another man come over the stile into the lane, with red hair, a tall thin man; I then went into the next field, and lost sight of them; the one with red hair went down a little lane where there was no foot-path.

Q. Has the lane a thoroughfare? - A. There is no regular foot-path, it is between two hedges.

Q. Have you ever seen, since that day, any men resembling the men you saw on that day? - A. I have seen two men since these, at Mr. Floud's office, in Worship street, that very much resembled those two I saw at the bank; but I am not positive they were the men I saw at the Justice's that I saw at the bank.

Q. Look at the prisoners? - A. I am not confident whether those men are the men; I know they are a good deal like them.

Q. Was the evening light? - A. At the time I saw them it was perfectly light.

Q. Did you ever observe to any person before, or when you came to the office in Worship-street, the colour of the hair of one of the prisoners? - A. When I was asked the question I described the colour of the hair before I saw the man.

Cross-examined by Mr. Gurney. Q. You say those two men are a good deal like the men you saw near the spot? - A. I cannot say they are.

Q. At this time it was light? - A. Yes, it was light.

Court. Q. What difference was there in the height of the two men? - A. One was a good deal taller than the other.

Q. One was thinner and taller than the other? - A. One was taller than the other.

ROBERT GODDARD < no role > (the younger) sworn. - Examined by Mr. Abbott. Q. Were you walking with your father and mother, and your brother, on the 7th of May? - A. Yes.

Q. Did you see any men about the lane? - A. I saw one man.

Q. Where? - A. Within two hundred yards of the spot where the murder was committed, near a bank, in a lane.

Q. Did you take any notice of the person of the man you saw? - A. Yes, I did a little.

Q. Describe him? - A. He was rather a short man, and thick set.

Q. Did you go to the Magistrate's office in Worship-street? - A. Yes.

Q. Did you make any observation on any man there? - A. I saw the prisoner, Clinch, there; I believe him to be the man.

Q. Did you go on as far as White Conduit-house with your father? - A. Yes; the party separated there, and my brother went back.

Q. Did any one of you happen to take out a watch to see what o'clock it was at White Conduit-house? - A. Yes, I did; and as near as I can recollect, it wanted five minutes to eight.

Cross-examined by Mr. Alley. Q. How far distance were you from the men you observed? - A. I was within three or four yards.

Q. Was it dark or light at that time? - A. It was not dark.

Q. Did you see other people walking at that time? - A. I saw very few.

Q. Do you recollect any of the others that you saw? - A. No.

Q. Do you recollect the prisoners at the bar? - A. I recollect one; the person that I saw was standing with his back towards me; I had no opportunity of observing his countenance.

Mr. Ward. Q. Did you look at the back of the man you saw at Worship-street? - A. Yes, but I did not take much notice of him; when I saw the man by the bank I was stopping to get over the ditch.

Q. Did you stop when you met any other person in the course of your walk? - A. No.

GEORGE GODDARD < no role > (the younger) sworn. - Examined by Mr. Knowlys. Q. How old are you? - A. I am thirteen years of age.

Q. Were you walking with your father and mother on Sunday the 7th of May last? - A. Yes, I was.

Q. Did you see any persons in your way as you were walking? - A. Yes; I saw two men.

Q. Did you take any notice of them, so as to be able to know them again? - A. Not particularly.

Q. How far did you go with your father and mother? - A. To white Conduit-house.

Q. Did you go to twon with them? - A. No; I returned back to Paradise-row.

Q. Have you seen, since this business, the spot where the murder was committed? - A. Yes.

Cross-examined by Mr. Const. Q. Did you observe, on your return back from white Conduit-house, any persons? - A. I saw two men sitting, about ten yards from the stile where the murder was committed, on a bank.

Q. Did you look at them? - A. Yes, I did.

Q. Were you able to see their faces? - A. NO, I was not.

Q. What were they doing? - A. They seemed to be knocking two stones together.

Q. Did you see any men at Worship-street? - Yes.

Q. Now, upon the observation you took of the men you saw on the bank, could you say they were like those men you saw at the office in Worship-street? - A. I did not see their faces; I observed one had a brown great coat on, and their hats flapped over their faces.

Q. How were they dressed? - A. One had a brown great coat on, and a light coloured waistcoat; I did not take much notice of them.

Q. Have you any recollection of the men-look at them, were they the two that you saw near the stile? - A. No; I cannot say they were.

SAMUEL HARPER < no role > sworn. - Examined by Mr. Ward. Q. You are an officer belonging to the Police-office, Worship-street? - A. Yes, I am.

Q. In consequence of some information, did you apprehend either of the prisoners at the bar? - A. On the 16th of May, in consequence of an information, I, and Mr. Armstrong, and some other officers, went to the Weavers-arms, Crown-street, near Finsbury-square, and there we saw Clinch, and one Smith, that is not now at the bar; we told Smith and Clinch that we had an information against them, and they must both go to the office in Worship street; we took them to our office, and they were committed that evening upon a general charge; the next evening we went out again, in pursuit of the other person, and at the Magpie and Stump, in Sun-street, I and the other officers stopped at the door, and Armstrong went in, and brought out the prisoner Mackly, and secured him; after that they were brought up, and some people came-the first time of their examination, I believe the young lady was not there; the second time, she was.

Cross-examined by Mr. Knapp. Q. In point of fact, the prisoners were not apprehended for this crime? - A. Yes, that was my information; I told the Magistrates so at the time.

Q. Mackly was let out upon an undertaking given by some persons that he should appear? - A. I believe he was.

Q. Was Mackly discharged in consequence of that? - A. He was.

Q. That was the case the first time? - A. I don't believe it happened more than once.

Q. The prisoner Mackly was the person who was discharged on other persons undertaking for his appearance? - A. I believe he was; but Miss Fryer had not been there at all at that time.

Q. But altho' she was not there at the first time, when she did appear at the second examination, did Mackly appear? - A. Yes, he did.

Court. Q. Were you present when Miss Fryer first saw the prisoner Mackly? - A. Yes.

Q. Did it appear to you that she knew him? - A. I believe she did; I have very little doubt but she did.

Q. She fixed upon him immediately? - A. Yes; not positively swearing, but believing him to be the person that came up to her the second time and robbed her of her cloak, after she had been robbed by Clinch.

Q. How were the prisoners situated? - A. The prisoners were all sitting in the bar with their hats on, and as soon as the Magistrates asked her the question, she directly fixed upon and swore to Clinch being the man positively; and after she had swore to them they got up from their seats, and when it came to her turn to be asked the question, she positively swore to Clinch before the Magistrates, in their hearing, close to them.

Mr. Knapp. Q. There was no property found upon the prisoners? - A. None at all, but a little money; I searched them both.

JOHN ARMSTRONG < no role > sworn. - Examined by Mr. Abbot. Q. Did you go with the last witness, Harper, when they apprehended the prisoners? - A. I did, to the Weavers' arms, Crown-street, Moorfields, on Tuesday, the 16th of May; I assisted, in company with Ray, Peach, and Harper, in apprehending Clinch.

Q. Did you search the prisoners? - A. I did not search the prisoners at all. On the 17th, I apprehended Mackly, but nothing passed.

WILLIAM BLACKITER < no role > sworn. - Examined by Mr. Knowlys. Q. What are you? - A. I am one of the officers belonging to the office, Worship-street.

Q. Were you present at any time when the prisoners were in custody? - A. On Tuesday, the 23d of May, I was sitting in a back room belonging to the office, with Clinch, the public-house was next door to the office, and he asked me to drink; I said I could not drink any thing; I said this was a bad affair to him; he said, it is a good thing I had none of the things with me, or else I would have blown some of their brains out; I said it was a very lucky thing for me that I was sent with a message to the General Post-office, or else I might have blundered in first, and I might have received the contents; and that it was a very lucky thing for the other officers that he had not the things with him, or else he would have blown their brains out.

Cross-examined by Mr. Gurney. Q. Were you present at the apprehension of Clinch? - A. I was not present at the apprehension of Clinch.

Q. You know there is a charge, not only of this murder, but there is a charge for robbing Miss Fryer? - A. I did not know it till this present day.

Q. Do you or do you not know there is? - A. I know now that there is.

Q. Had you not heard that Miss Fryer had been robbed? - A. No, not at that time.

Q. At the same time that you heard of the murder, had you not heard the gentleman's watch had been taken? - A. No, I had not.

Q. Had you heard of the transaction of the murder of Mr. Fryer? - A. Yes, I had.

Q. Do you mean to tell me, at the time you heard of that, you did not hear that Mr. Fryer and Miss Fryer were both of them robbed? - A. I have heard since, but not then.

Q. You did not hear of their being robbed? - A. No; I did not hear there had been a robbery at the time of the murder of Mr. Fryer; I had no thoughts of being a witness.

Q. Nobody was present when this conversation passed between you and the prisoner, Clinch? - A. Nobody.

Mr. Knowlys. Q. When did you first mention this? - A. I mentioned it to Mr. Armstrong.

Q. How soon did you mention it to the gentlemen concerned for the prosecution? - A. I mentioned it long before any indictment was preferred.

( JOHN FLOUD < no role > , Esq. was called, but his evidence was objected to).

Clinch's defence. I am innocent of it, I have nothing to offer, I leave it to my Counsel.

Mackly's defence. I know nothing about it.

For the Prisoners.

WILLIAM RICE < no role > sworn. - Examined by Mr. Ally.

Q. What are you? - A. I keep the public-house the deceased was brought to, the King's arms, the corner of Park-place.

Q. Do you recollect the prosecutrix being there at the time the deceased was there? - A. I believe I was the first person that she came up to when she came across the fields; the lady said, there was a gentleman killed in the fields; I alarmed my neighbours, all that I could collect together, in the neighbourhood, and went to the spot.

Q. What conversation passed, while the lady was there? - A. After she returned to my house, she told me she could not tell what kind of people they were.

Q. What answer did she give you? - A. she told me she could not tell, that they were three young men she believed, but they had something over their faces; that she could not give any description of them; that they had something over their mouths; I told the lady it was just about the time of the Bow-street patrols coming, and I could almost answer to their being upon the spot; it proved they were there before any body returned.

Cross-examined by Mr. Alley. Q. At the time the lady made use of this declaration, had she her senses or recollection about her? - A. she seemed very much agitated; I asked after that, and said, there are people about, we can dispatch them different ways, if you can give us any description of the men; she said, she certainly could not; that they had something over their faces, and had darkish coloured coats on.

Q. How long might she have been in your house? - A. As much as an hour, or an hour and a half; or an hour at least.

Q. Had she any refreshment during the time she was in your house? - A. Not that I know of.

Q. Did she continue in the same opinion? - A. she continued in the same opinion during the time she was in my house.

Mr. Knowlys. Q. The poor lady was in great distress at that time? - A. she was; she was kept from the wounded gentleman as much as possible; I believe the surgeon was in the house within five minutes after the deceased was brought in.

Court. Gentlemen of the Jury. This is an indictment against the prisoners at the bar, charging Martin Clinch < no role > with having discharged a pistol at Mr. Fryer the deceased; and that that pistol having given a wound, was the cause of his death; and it charges James Mackly < no role > with being present, aiding, abetting, and assisting the other prisoner, Martin Clinch < no role > , in this fact. In short, the indictment charges both of the prisoners at the bar with murder; and it is my duty to tell you, in point of law, that wherever it appears that one subject of the realm has deprived another of life, the law presumes it was malice aforethought, unless the contrary appears, and calls upon the person who kills the other, to shew there was some reason or justification for his so doing. You observe here are two persons charged, one for killing, and the other for aiding and abetting him in so killing-the law is, that if two persons or more go out on an unlawful purpose, to commit a felony, and one or the other of them kills a person, in such a way as to make it murder in him that kills, it is not only murder in him that kills, but also in all that are present, aiding, abetting, and assisting him; and it would not signify in this case, in reality, if it was to turn out in evidence before you, that Mackly was the person who committed the murder, and that Clinch was aiding and abetting; if they were there both together for an unlawful purpose, and in the prosecution so that unlawful purpose they committed the murder, they will both be equally guilty. But, however, Gentlemen, that is not a matter of distinction necessary for you to attend to here, because, if by and by, you should give such credit to the evidence, and undoubtedly, if you believe the witnesses, it clearly appears that Clinch is the man who committed the fact, and the other is the man who is stated to have been present at the time. The first question I would draw your attention to is this, whether or not, a murder has been committed? and when you have satisfied your minds that a murder has been committed, whether both or either of the prisoners at the bar were concerned or guilty of that murder? if it should turn out that one of them is not, then you will make a distinction in your verdict.

Gentlemen, I will just state to you, in this case, one observation, and I would wish you to carry that observation in your minds throughout; you will find that this case will very much depend upon the evidence of the lady who has been examined. It generally happens, that the person robbed, is at the time of the robbery, exceedingly agitated, and, unless they are acquainted with the party robbing before-hand, it is sometimes extremely difficult afterwards to swear to the person; we all know, that an act of this sort is attended with great terrors, particularly if the person happens to be a female; one does not at all wonder at it, and for that reason, where there is only one person in company, who can speak to the fact, surely we must hear the evidence with great attention, and great distrust, not as to the honesty and fairness of the witness, but as to that sort of uncertainty in which the humane mind is frequently under in cases of fear, which may not make such an impression on the mind; for which reason I always look for, and I am very happy when I find some corroborating circumstances to shew, that the person robbed is not mistaken, as to the person of the party robbing, and if part of the property can be traced, or if any other person swears to the persons of the prisoners, or if any body can be found, that can swear that the persons charged with the robbery, were at or about the spot at the time, all these circumstances of corroboration very much deserve, nay, indeed, require the attention of a Jury.

Gentlemen, having said so much, I will read to you the evidence; I will now say, that the evidence, as to the identity of the prisoners, is from Miss Fryer, who was present, and then there are some witnesses called to you, and it is for you to judge how far they will corroborate her evidence; you heard her, and I am very happy to observe, that you heard her attentively; I will not make a comment on her evidence, I will simply read it, and it will be for you to judge, whether a better and more distinct account could be given by a female, under the circumstance in which she was, and under which she has now been examined.

Here the learned Judge summed up the evidence, when the Jury, having retired about half an hour, returned with a verdict.

Clinch, GUILTY Death . (Aged 22.)

Mackly, GUILTY Death. (Aged 22.)

Tried by the first Middlesex Jury, before Mr. Justice GROSE.