212. HUGH MACK proceedingsdefend was indicted for the wilful murder of Timothy Kirby proceedingsvictim .

The case was stated by Mr. Gurney.

THOMAS LEE < no role > sworn. Examined by Mr. Gurney.

Q. You are a private in the fourth regiment of foot - A. I am.

Q. On Sunday, the 23d of March, were you at Barnet. - A. I was, with fifteen or sixteen other persons under charge of desertion, we were all handcuffed, there was a rope placed between the two columns of men, and one hand-cuff of each man was tied to the rope; we were escorted by an officer, a serjeant, and some common private men with arms.

Q. Who was the serjeant . - A. The prisoner at the bar.

Q. When you came to the Red-Lion at Barnet did the deserter s halt. - A. They did.

Q. Had any order been given by the officer for the company to halt. - A. Not in my hearing; the officer came up, and asked who had halted the men; they said they wanted their pay to get some subsistence, for he had promised not to march them further than there that day; he said they must go on to Highgate, and they said they could not, as they had had no refreshment from twelve o'clock the day before.

Q. What hour of the day was this. - A. About one or two o'clock; the officer told them to go on to the next public house, then he would halt them and give them some refreshment.

Q. Did they go on upon that. - A. Yes, till they had passed this public house, then they halted again without orders, and said they were not able to go without some refreshment; the officer said they must go on to Highgate; the deceased man said, as well as the other men, that he could not go to Highgate without some refreshment, the serjeant said he was able to go, and he must go, without any refreshment; the deceased told the serjeant that he should not be so cruel to a deserter, it was only three months ago that he was marched from the Savoy as a deserter himself; the serjeant said he was a liar, and then the deceased said he was a liar; the serjeant said he wished he had the pleasure of shooting them all; then the serjeant returned and struck him with the halbert, he took the halbert in both his hands, and gave him a hard blow with the cross bar on his head, the guard, the steel end of the halbert stuck in the scull.

Q. Did the halbert stay upon the place where he struck him. - A. Yes, it struck very fast, and it drew his head of one side when he pulled it out; he pulled two or three times before the halbert came out, his hat came off with the halbert, and the man cried out he was dead, the blood flowed when the halbert was drawn out. The deceased sat down and begged the officer to take off his handcuffs, and called for his wife and child, who were behind; the officer who commanded the escort sent for a surgeon.

Q. Did you stay with the man. - A. No, we were marched on to London.

Q. Did you halt at any place. - A. We did, about an hour afterwards; I saw Kirby brought into the Savoy that night, he was brought to the Savoy in a cart, and I saw him after he was dead.

Cross-examined by Mr. Knapp.

Q. You joined the party. - A. Yes, I was taken three or four miles below Barnet.

Q. The deserters halted twice; there were no orders given by the officer or the serjeant to halt. - A. No.

Q. Was the conduct of the deceased quiet and peaceable. - A. He was as peaceable as the rest, all of them refused to go on till they got their subsistence money.

Q. The words liar passed between both of these men. - A. Yes.

Q. Was not the blow immediately given on these words taking place. - A. Yes.

Q. There was some of them willing to go on. - A. No, there were none of them willing to go on till they got their pay.

Q. Was not the deceased the only person that pulled the rope. - A. I did not see one pull the rope more than the others.

Mr. Gurney. The deceased was before you. - A. He was.

Q. Might not he pull the rope back to stop the others without your perceiving it. - A. He might, I did not see the deceased pull the rope, they were all of them willing to stop to get their pay.

Jury. Was the deceased the first file. - A. About the second; I was the seventh file.

Q. Was he left hand man or right hand. - A. The right hand was handcuffed, and secured to the rope, his left hand was at liberty.

JOHN COOK < no role > sworn. Examined by Mr. Gurney. Were you in this party of deserters at Barnet on the 23d of March last. - A. Yes, I came with the party from Chester.

Q. Had the deceased come from Chester likewise. A. Yes.

Q. I believe some of you come from Ireland. - A. The whole come from Ireland.

Q. Where did the prisoner at the bar take charge of you under the officer. - A. At Litchfield.

Q. Do you remember halting at Northampton. - I do, they halted about an hour before the goaler would take them in custody; during the officer's absence, the deceased and the prisoner at the bar had some words; I was in the rear file that day, I cannot tell what was the beginning of the words, I heard the soldiers grumble very much not getting their billets to get their dinner; I heard the serjeant say d - n the Irish rebels, they should all be put to death; the serjeant talked very hot to the deceased, and the deceased to the serjeant; the deceased said the serjeant charged him with being a deserter, he had been a deserter himself; the serjeant said he was very much obliged to the soldiers for telling the deceased that, otherwise he could not have known it; the serjeant said, if the d - ned rascal speaks to me again I will take his life.

Q. Did you come on from thence to Barnet. -We remained there some-time before a place could be got to put the deserters in; there the deceased told the officer, that Mack threatened him with his life, and was abusing him in a gross manner; then the officer, that gentleman that is there, (pointing to him) told him to hold his tongue, brought us forward to another goal, and put us in there. On the next day we marched to St. Alban's, and on Sunday morning we marched from St. Alban's to Barnet.

Q. From Northampton to Barnet had any other dispute took place between the prisoner and the deceased. - A. Yes, at a place called Chalk Hill, near Dunstable, the serjeant impeached him again of being a d - ned rebel for flying from his colours; the deceased gave him as bad in return again, told him he must be a d - ned rebel for flying from his colours; with that the serjeant drew back, took his halbert, and swore he would run him through; the corporal of the party laid hold of the serjeant's arms to hinder him from stabbing him with the halbert, and then the officer gave orders for the serjeant to go on.

Q. In your march from Northampton to St. Alban's, what was the latest hour that you had refreshment. - A. About twelve o'clock.

Court. At what place had you the refreshment. A. About twelve miles from St. Alban's some had refreshment, and some had none; I borrowed some money of the officer to get some refreshment; my wife was in the rear, the last that we had was at Dunstable.

Q. Then on the morning of Sunday you had none. - A. No.

Court. Nor on Saturday afternoon. - A. No, we had none till Sunday at noon.

Mr. Gurney. When you came to Barnet the deserters stopped without orders. - A. All halted without any order; that was opposite of the Red Lion. The officer came up, and asked what was the matter; I told the officer he had promised a halt there, because we had marched the day before thirty miles, and by halting here, there would be a short day's march to London; then the officer told us we should halt at the next public house. We came out of the town, and there was only one public house to be seen, and at that public house they all halted again; the prisoner at the bar came up, and the officer came and asked who ordered to halt; some man said it was the serjeant; the officer desired them to go on; he said he would halt them at Highgate. They did not move for some time; some knew the distance, and some did not.

Q. Did the deceased say anything at that time. - A. He did not; some said it was only three miles. and the officer said it was only three or four miles, We all said that we could not go without some refreshment; we could see no public house; the officer told us there was a public house a little farther on; the serjeant came and struck the deceased on the head.

Q. How near were you to the deceased. - A. I was the rear file of the whole; I could hear them mutter some disagreeable words one against the other, but not enough to make him strike him; I heard the word Liar returned backwards and forwards from the serjeant and the deceased; one and all said they could not go on without having refreshment; Young said he would be d - ned if he would march any farther without he had some refreshment.

Q. Did you hear the deceased say any thing. - A. The deceased said he was not able to go till he had some refreshment; he was very much fatigued, his wife was in the rear to get some for him.

Q. Then you say you heard the serjeant and the deceased call each other liars. - A. Yes.

Q. Did you hear any other angry words between them. - A. The serjeant said if he would not go on he would take his life.

Q. Did he say that to the deceased only, or to any other person. - A. To the deceased only, as I understood.

Q. Did you hear any more words from one or the other before the blow was struck. - A. No, I saw the serjeant give the blow with the halbert.

Q. What part of the halbert did the prisoner strike him with. - A. With the cross-steel bar, he struck him over the head (witness describing the manner the prisoner struck the deceased) with both his hands, with the cross-steel bar, he knocked it through his hat into his head.

Q. Did it come off from the head easy. - A. No, with great difficulty he got it out, it struck in the skull; he made several pulls to get the halbert out, and the deceased stooped his head for him to get the halbert out; the hat came off with the halbert being pulled out, and the blood flowed immediately; the deceased cried out that he was murdered, and begged the officer to let his handcuffs be taken off, and called for his wife and child; the deceased sat down, and they were taken off, and the witness that gave evidence before me was put in his place, he not having been handcuffed before.

Q. Did you stay with the deceased. - A. I was marched on I dare say about a couple of miles, when we stopped for some refreshment; we then came forward to London; I saw the deceased again at night when he was brought to the Savoy in a cart; he lived till the Wednesday or Thursday following, I do not know which.

Cross-examined by Mr. Knapp.

Q. I understood you to have said, that Young said, D - mn him if he would go any further. - A. Yes.

Q. That was the opinion of you all. - A. No, I cannot judge of any man's opinion but my own.

Q. You were all desirous of having your pay. - A. That was my opinion, I do not know what any other man's was. I said I wanted refreshment; the serjeant would have stopped them if they had not stopped; the men said we were d - mned fools if we did go; the serjeant was as willing to stop as the men, if it had not been for the officer's order.

Q. Did not the serjeant halt you. - A. He did; because the officer said he would halt us at the last public house.

Q. Whereabouts was it in Barnet the deceased received the blow. - A. This near end to London.

Q. I think you said the words were as high of one side as the other. - A. Yes.

Q. Was not there an attempt at Stafford of you all to make your escape. - A. About ten were for going, and six were not for making their escape.

Q. Was not that the night before you was deliveredover to the officer and the present serjeant. - A. It was.

THOMAS WEBB < no role > sworn. Examined by Mr. Gurney. Q. What are you. - A. I am a shoemaker, I live at Barnet.

Q. On Sunday the 23d of March, did you see a party of deserters marching through Barnet. - A. I saw a party of soldiers escorting a line of deserters.

Court. Were there as many soldiers as there were deserters. - A. There were more, there were nine on each side, with fixed bayonets; the deserters were handcuffed together, fastened to a rope that went through the line, the prisoner at the bar was in the front, and the officer was behind.

Q. Did the deserters halt. - A. They halted for the first time opposite the Red Lion; when they halted, I came up to them, they appeared to be much tired, and I heard a general complaint amongst them of want of refreshment. I heard the officer and the prisoner at the bar order them to move on, the officer promised that they should stop lower down in the town; upon that order they moved on, I believe more than an hundred paces, opposite the lower Red Lion, the last public house in the town, and the nearest public house in the town towards London.

Q. When they came up to the lower Red Lion they stopped. - A. They did, I did not hear any order for stopping, the officer ordered them to move on, the prisoner at the bar then repeated the same as he had done before, they then moved on I believe about thirty paces, and then halted without any command, I then ran towards them, and I saw the deceased, for one, pull the string, he rather checked it back, he was in the second file; there appeared to be a general complaint throughout the whole line; I heard the deceased say he could not and would not go any further till he had some water; instantly I saw the serjeant leave the front, stepping a few paces he uttered some words, I did not distinctly hear, he then struck the deceased with the guard part of the halbert on the head.

Q. Did it appear to penetrate the head. - A. I saw the guard pass through the hat into the head, and it was with difficulty he drew it out, it brought off the hat on the pike of it.

Q. When the prisoner struck the deceased with the halbert, in what manner did he hold the halbert. A. With both hands, and struck him as violent as he could strike him, with as much force as a butcher would strike a bullock; I was close up to him at the time, I heard the deceased exclaim, oh, I am killed! I am killed! the blood flowed from the wound; as soon as I heard the deceased say these words, I saw the blood stream over the right eye, he did not immediately fall with the blow, because he was supported up by his fellow deserter that was handcuffed with him, who held him up, then his handcuff was taken off, and he sat down; in about a quarter of an hour the surgeon came; I saw the deceased put into a cart.

Q. How soon was the deceased put into a cart, and sent to London. - A. I believe it must be more than an hour, because he was taken into a stable and searched by the surgeon.

Q. Before the prisoner struck the deceased with the halbert, had the deceased either struck him or made any motion towards striking him. - A. None in the least, I am perfectly sensible of that.

Cross-examined by Mr. Knapp.

Q. You said that you saw the deceased lay hold of the string. - A. No, he did not lay hold of the string, he rather checked the string; the officer and serjeant requested them to go on, but they were all unwilling to go on till they had some refreshment.

Q. How near were you to the serjeant at the time the blow was given. - A. I was close to the rear of the party, I distinctly heard the deceased say the words that I have told you, there was a rumour of different people speaking, I might not hear all that passed.

MATTHEW SMITH < no role > sworn. Examined by Mr. Gurney. Q. You live at Barnet, and by business a baker. - A. Yes.

Q. I believe you are now headborough of the town. A. Yes.

Q. On Sunday the 23d of March, did you see a party of deserters march through Barnet. - A. I did, under an escort of a serjeant and an officer, and about twenty private soldiers, with their bayonets fixed; the prisoner at the bar was in the front with his halbert, and the officer was in the rear.

Q. Did you observe them to halt opposite of the Red Lion. - A. No, the serjeant halted them between the upper Red Lion and the sign of the Harrow; I was standing at my own door, about twenty yards from them.

Q. Did you hear any thing at that time. - A. I heard the officer ask who halted the men; one of the privates answered it was the serjeant, the officer said you must go on, they went on from opposite the sign of the Harrow till they came to what we call the lower Red Lion, then the men halted opposite the lower Red Lion in the road.

Q. Did you hear any word of command given for that halt. - A. No, but there was a murmuring between them, they said they had been marched so far the day before, and they could not, nor would not, march any farther, till they had some refreshment; then by the word of command being given by the officer, they marched on a few paces farther, till they came to the stonemason's beyond the lower Red Lion; when they come on these few paces they halted again, they were all determined, semingly, of going no farther, as there was no other public house for them to stop at; they were all dissatisfied, I did not see one more so than another.

Q. Did you see the rope pulled by any of them. - A. Yes, by several, I was close at the rear of them.

Q. Did you observe the serjeant do any thing upon their halting. - A. The serjeant uttered very bad words, he came from the front towards the deceased, and struck him.

Q. Did you hear any words that the serjeant made use of. - A. When he had got the halbert up, he said, I will murder you, you b - r.

Q. In what manner did he take up the halbert to strike him. - A. (the witness described here the manner in which the serjeant was carrying the halbert, and also the manner he struck the deceased) When the halbert was in the deceased's head, he tried to pull it out, he could not at first, he drawedthe man towards him; it was the guard part of the halbert that went into the man's head, and when he pulled the halbert out the deceased's hat came off with it, and in a very little time the blood flowed, the man did not drop instantly, but in a few minutes he fell to the ground, and the blood flowed over his right eye; the moment the deceased was struck, he cried, oh, I am killed! I am killed!

Court. Before he fell did you see or hear any thing more pass with respect of the serjeant. - A. Not a word; the serjeant returned back into the front of the party again, and never came nigh the deceased any more in my sight; the deceased begged for some water, and Mr. Birdstock, who keeps the lower Red Lion, brought him some water; a surgeon was sent for who came.

Q. Before the serjeant struck him on the head, had the deceased made any effort to strike him, - A. I did not see any thing of the kind, I am certain it is a very false thing if any body says so.

Cross-examined by Mr. Knapp.

Q. There was a general refusal among them not to proceed any further, till they had received refreshment. - A. There was.

Q. There were words used first between them. - A. Yes, but I cannot tell what the words were.

Court. Do you mean words between the prisoner at the bar and the deceased, or words among the men in general. - A. There were words among the deserters in general.

Q. Were there words used between the prisoner and the deceased while you was there. - A. Not a word.

Mr. Knapp. You saw him pull the string. - A. He did, and the others pulled.

Q. Was it not after the rope was pulled different ways that the blow was given. - A. The serjeant ran from the front immediately the refusal was signified by the whole party.

Q. And then the blow was given. - A. It was.

Court. Do you know whether the place by the stonemason's where the blow was given, is in Hertfordshire. - A. It is in Hertfordshire, in the parish of Chipping Barnet.

WALTER MORRISON < no role > sworn. Examined by Mr. Gurney. I believe, sir, you are a surgeon, residing at Barnet. - A. I am.

Q. On Sunday the 23d of March, was you sent for to examine a deserter that had been wounded in the head. - A. I was, I found the man in a stable at the lower Red Lion, I examined the head and found the wound to be about an inch in width, an instrument had penetrated the scull, and entered the brain.

Q. Was it such a wound as a part of the halbert would have made. - A. It was.

Q. Did you observe any part of the brain exudate from the wound. - A. There was.

Q. Was it a wound as might produce death. - A. It was, I thought it was a dangerous one, and so I told the officer that he would not live long.

Q. I do not know whether you saw the man put into the cart. - A. I did not see him put into the cart, I overtook him, and saw him in the cart, going to London.

Cross examined by Mr Knapp.

Q. The officer enquired of you, sir, I understand whether it would be safe to convey him to London. - A. It was my opinion that he might be removed without encreasing the danger.

Q. Upon that the officer had the cart to remove him. - A. It was.

- SAUNDERS sworn. Examined by Mr. Gurney.

Q. I believe you are a post boy at Barnet. - A. Yes.

Q. On Sunday the 23d of March did you drive a cart with this wounded man to London. - A. Yes, I brought him from the lower Red Lion, his wife and child was put into the cart with him, I got some straw for him to lie easy, the woman let the man lay his head in her lap, as well as she could; when he was coming to town he never spoke, he never was in his senses at all; I stopped three or four times to get some milk and water for his wife to refresh him and wash his wound; I brought him to the Savoy.

PEGGY MOORE < no role > sworn. Examined by Mr. Gurney. Q. You are the widow of Timothy Kirby. A. I am.

Q. We understand you was not with him at Barnet, at the the time he received the wound. - A. I was not, I came up to him before he was put in the cart, I came with him in the cart to the Savoy, he arrived at the Savoy on Sunday evening.

Q. Did you see him the next day, and so on till he died. - A. I did; he died on the Thursday morning.

Q. You saw him after he was dead. - A. Yes.

HENRY WORTH < no role > sworn. Examined by Mr. Gurney. On the evening of the 23d of March, I saw the deceased in the Savoy, I examined his wound in the barrack room, in the presence of another surgeon, we were then both of opinion that there was no fracture, I gave orders immediately for him to be taken to my hospital, where I bled him immediately; the next morning I went up to see him, he was walking about the room, he said he had a pain in all his limbs, that he had undergone a long march; I told him he might go to bed, I would rather see him in bed than up; on Tuesday and on Wednesday morning he was very well, till about five o'clock, I believe, he then did not care to speak at all, his pulse was rather low; Wednesday evening he did not care to speak at all, he appeared sensible.

Q. Did he complain of the pain in his head. - A. Not at five o'clock; at ten o'clock I saw him, he told me he had a pain across his forehead; on Thursday morning about five o'clock, I was called up, he was quite dead; I opened the head; on removing the scull, I found there was a small fracture.

Q. Did the wound appear to have penetrated the brain. - A. On removing the pericranium, I perceived it had entered the dura mater.

Q. Have you any doubt that that wound was the occasion of his death. - A. No doubt at all.

Prisoner's Defence. At the time these deserters were delivered to the officer and me at Litchfield, I was informed by Mr. Allen that they were a very dangerous set of men. At Northampton the deceased was very refractory; I told him to be quiet till the officer could get a prison or some other placefor them; he abused me in consequence of his bad conduct. The officer commanding the escort put him in the lower part of the prison. About four miles from Northampton this Timothy Kirby < no role > was getting quite slack, he said he could not get on; I spoke to him, he called me all the villains, and swore he would take my life; I told a man of the name of Wilson to take notice of it. At Dunstable, he in particular grew refractory; most of the party were agreeable to go on excepting this Kirby, and a man of the name of Young, who said they would go no further; the officer then with the flat of his sword struck Kirby. At St. Alban's the prison-keeper would not let them in without a guard; this Kirby said he would not march, though he was able to do it. At Barnet they halted without any word of command whatever; I said to this man go on quietly; at one time he said he was not able, and the next reply he made me was, he was better able to march than me, but he would be d - mned if he would go on, and if I would come nigh him, for a rascal he would strike me dead. The party moved on till we come near the Red Lion, or below it; they halted again, he asked for the rascal of a serjeant at the front. The officer ordered the party to go forward; I said come on, he said if you come nigh me I will strike you dead, he made a pull to get at me, and rushed forward to make a blow at me, I took my halbert and thought to hit him with the wood part, he fell back, and then the cross pin catched him over the head.

THOMAS WILSON < no role > sworn. Examined by Mr. Knapp. Were you one of the escorts. - A. Yes, I am in the thirty-eighth regiment of foot.

Q. Were you with the deserters all the way from Litchfield to London. - A. Yes, we had the charge of sixteen, and the deceased was one of them.

Q. Did he and the rest of them conduct themselves quietly and orderly on their march. - A. The whole of them but Kirby and Young. Kirby behaved in a blackguard manner, he refused the orders of the officer on Sunday the 23d of March; we were coming through Barnet; the prisoners wished to stop to get themselves some refreshment, the lieutenant desired them to go on, the deceased laid hold of the rope and stopped the party, and said he would be da - ned if he would go any farther; when he gave these words the serjeant moved forward, and said he would stab him in the a - with the pike if he did not move forward; the deceased d - d the officer and him both, and if he came near to him he would kill him; the deceased made a push with his hand to strike the serjeant with his right hand; then the serjeant hit him with the pike, the deceased drew back his head, frightened at the blow, the pike just touched his head; I believe the serjeant meant to strike him with the wood part of it.

Cross-examined by Mr. Gurney.

Q. After you had delivered the deserters at the Savoy, you and the prisoner returned towards Litchfield. - A. Yes.

Q. And it was in your way back that the prisoner was taken up on this charge. - A. It was.

Q. You and he conversed a good deal on this subject. - A. We did a little.

Q. Upon your oath have you any other reason to believe that he did not mean to strike him with the iron part of the halbert, but that he has told you so. A. I have no other reason.

Mr. Knapp. Did you ever escort a more riotous and disaffected party than these were. - A. No.

- WILLMOTT sworn. Examined by Mr. Knapp. Were you of this escort party. - A. Yes; the deceased was one of the deserters under our escort, I came with him all the way from Litchfield.

Q. Was his conduct peaceable or otherwise during your march. - A. Very otherwise; he did not obey the officer's orders, and he threatened the noncommissioned officer many times on the road. On Sunday morning at Barnet the deserters halted themselves without orders; Kirby said he would not go any further till he got some refreshment; he d - d both the serjeant and the officer; the serjeant said if he did not go on he would job him with the pike. Kirby said if the serjeant struck him he would kill him if it was possible, he laid hold of the rope with his right hand, and drew the rope back, and would not let the other men go on; the serjeant struck him.

Q. Before the serjeant struck him had the deceased made any blow at the serjeant. - A. Yes, he held his hand up to hit him.

Q. Was it immediately after the blow that was aimed at him that the serjeant struck the deceased. - A. Yes, directly he struck him with the halbert; I was about two yards from him.

Q. Did he receive the blow or did he retire from the blow. - A. The man flew from the blow.

Q. Then of course the halbert would recline from him as he drew down his head. - A. Yes, and he received it in his head.

Q. Did it appear to you that it was the intention of the prisoner to strike him with the wood or the iron. - A. With the wood.

Q. If the deceased had not retired from the blow, or flew from the blow, as your expression was, would the wood part have hit him instead of the iron. A. Yes.

Cross-examined by Mr. Gurney.

Q. You went back to Litchfield with the serjeant and the rest of your escort. - A. Yes.

Q. You had some conversation with the serjeant. A. No.

Q. Nor the rest of you. - A. I never heard any of of them.

Q. The serjeant and the deceased were not upon good terms upon the course of your march, were they. - A. No, they quarreled at Northampton.

Q. At the time they halted at Barnet the deceased d - d both the officer and the serjeant. - A. Yes, that was the last halt.

Q. Did he say it quite loud. - A. Yes, the best part of the escort heard it.

Q. He, a prisoner about to be tried for desertion, d - d the officer and the serjeant too. - A. Yes.

Q. And when the prisoner said he would not go on, he said he would prick him with the pike. - A. Yes.

Q. And then the deceased said, if you prick me, I will kill you if I can. - A. Yes.

Q. So that if the serjeant had not gone away he would have knocked him down. - A. Yes, the deceased stepped forward to hit him.

Q. So that if the serjeant had not gone away, he would have knocked him down. - A. Yes.

Q. How far did he step. - A. About four steps.

Q. Then he must go about three or four yards. - A. Yes, to make his blow at him.

Q. And the blow that he made to the serjeant was so violent, that if the serjeant had not got away, it would have knocked him down. - A. Yes.

Q. Do not you think the blow touched the serjeant. - A. No.

Mr. Knapp. You say he made three or four steps forward, you do not mean to say that each step is a yard at a time. - A. No.

WILLIAM PRICE < no role > sworn. Examined by Mr. Knapp. Were you one of the escort bringing the deserters from Litchfield. - A. Yes.

Q. Do you remember Kirby the deceased being one of the deserters. - A. Yes.

Q. What was his conduct coming along the road. A. Sometimes he would be very stubborn, and use ill language to the officer and serjeant; he d - d and and bl - d them, and called them all the rascals he could think of; when we got to Barnet the deserters refused going any farther.

Q. Was the deceased one of the most active of those that refused to go any further. - A. Yes, the serjeant desired him to go on; he said I will not for you nor the officer nor any of the party, and d - d the officer and serjeant; the officer gave the word, Shoulder arms, and told the parties to go forward, march quick time; upon which the men were going; Kirby laid hold of the rope and pulled the party backwards, the serjeant at the same time struck at him with the pike.

Q. Did he hold up his hand towards the serjeant as if he was going to strike at him. - A. Yes, it was aimed to strike him, but it did not hit him.

Q. Then you saw the serjeant strike him with the halbert or pike. - A. Yes, the deceased and the serjeant were about two yards distant.

Q. How did the serjeant aim his blow at the deceased. - A. From what I saw, the way that he meant to strike him was on the shoulder.

Q. Can you tell us what part it would have been likely to hit him with the halbert. - A. About a foot or eighteen inches from the top part of it.

Q. Then it would be with the wood part of it. - A. Yes.

Q. What was the position of the deceased at the time he received the blow. - A. He stood upon his legs.

Q. Did he run from the blow. - A. Yes, and the deceased received the blow as he was retiring from it; he was struck with the cross-bar on the head.

Q. Supposing the deceased to have stood his ground, and not to have receded from it, would the cross bar have hit him then. - A. It would not.

Cross-examined by Mr. Gurney.

Q. After you had delivered the deserters, you went back to Litchfield with the prisoner. - A. Yes.

Q. Of this unlucky occurrence had you any conversation among you. - A. No.

Q. Did not the serjeant talk to you about it. - A. No, nor I to him.

Q. Did you never open your lips about it before you come here to-day. - A. Not among the escort, I have to other people.

Q. You say the conduct of the deceased was somewhat stubborn. - A. Yes.

Q. Was the serjeant and the deceased upon good terms on the course of the march. - A. They were when they first started.

Q. Of course, because they were strangers, when they got to Northampton it was otherwise. - A. Yes.

Q. And they were upon ill terms all the way to Barnet. - A. Yes.

Q. The deceased was to be tried for desertion. - A. Yes.

Q. And he knowing he was to be tried for desertion, d - d the officer. - A. Yes, I believe every one of the party heard it.

Q. And he made a violent blow to the serjeant. - A. Yes.

Q. How many steps did he take when the blow was attempted to be given. - A. Two or three steps from the line.

Q. And made a violent blow at the serjeant with his double fist. - A. Yes.

Q. If it had hit the serjeant, I suppose it would have knocked him down; do you know where he aimed to strike him. - A. From the way that he struck at him, I think it was his head.

Q. And every body could see him. - A. Yes.

Q. Do you remember what the serjeant said before he struck the deceased. - A. He told the deserters to go on.

Q. When he lifted the halbert to strike the deceased, upon your oath, did he not say d - m you, I will murder you. - A. I do not recollect his saying the words.

Q. How near was you. - A. About four or five yards from them.

Q. He struck very gently. - A. Yes.

Q. He did not mean to hurt him. - A. I do not think that he did.

Q. He meant to give him a gentle pat on the shoulder only. - A. Yes.

WILLIAM WILTSHIRE < no role > sworn. Examined by Mr. Knapp. Q. I understand that you had the command of this escort. - A. I had come from Litchfield with them.

Q. You remember the deceased being one of the deserters. - A. Perfectly well.

Q. Was he quiet and peaceable under your orders during the march. - A. No, excessively riotous all the while; at Northampton I had some difficulty in getting them into a goal, the town goaler refused taking them in; the serjeant and the deceased had a dispute, I said nothing to him, and when I had them put into a goal, and the prisoner for his ill conduct was put into a lower cell; the next morning they marched, I believe we went to Newport; the day after we went to Dunstable, and when we halted the serjeant took me to a stable to shew me to put the deserters in, it was a good stable, but the price was too high; I asked them whether they would take that stable or go on to St. Alban's, some were willing to go on, and others were not, they wished for refreshment; I told them when they got to the end of the town, and the mob had left them, I would give them refreshment, the majority being willing to go on I gave the word, Quick march, and ordered them to go forward; they all went on but this Kirby, he seized hold of the rope with his righthand, and pulled the men back, and swore that he would not go on, I went up to him, drew my sword, and struck him with the flat part of the sword, on his back, then he moved on; when I got to the top of the hill, this side Dunstable, I halted; the deceased then seemed content; after he had some drink, and after he had received his refreshment, he swore that he did not mind if he marched to London that night, he only considered his wife and child that were behind; we then marched on to St. Alban's, where we put them into a goal; the next day being Sunday, we marched for Barnet, intending at the same time to make London, as I was allowed eight days to march from Litchfield to London; this was the last day I had for my march; in the former part of our march the roads were excessive bad, and they would not go more than eight miles a-day; when we got to Barnet the deserters supposed they were to halt there; when they saw that I did not give the word to halt, they halted themselves, and my not wishing them to halt in the street, to have a mob about them, I told them to march to the end of the town, I would there halt and give them refreshment; when we got towards the end of the town, they halted again; I immediately asked what was the reason for halting, they answered that they wanted refreshment; I told them that I would not halt there, but if they would go on about half a mile to a public house, we there would have refreshment.

Court. You knew there was a public house there. - A. Yes.

Mr. Knapp. Tell us the reason for your not stopping in Barnet. - A. Because a crowd would come about the deserters; some of the escort had ordered their arms, I told them to shoulder the same; the deserters moved on, particularly the three leading files, upon which Kirby, the deceased, took hold of the rope with his right hand, saying, he would be d - d if he would move for either officer or serjeant; seeing a number of people round the escort, I turned round to them, and told them to go away; I then saw serjeant Mack standing about the third file, on the right of the escort; I saw the deceased extended with the rope, he pulled the man on the left out of the line, very near to serjeant Mack; at which time I saw Mack lift his halbert, and make a blow at the deceased, which blow I am very confident had the deceased remained in the situation he was in, would have struck him with the wood of the halbert; when he saw the blow coming, he moved himself and fell away, by which means he received the cross bar of the halbert in his head.

Court. By moving himself he brought himself within the reach of the cross iron of the halbert. - A. Yes.

Mr. Knapp. Upon the solemn oath you have taken, do you believe from the manner in which the blow was given by this man, it was meant to hurt him on the head. - A. Upon my oath, I do not believe it was, and I am very positive, had the man remained in the situation he was in, the iron would not have hit him on his head.

Q. Had you known any thing of this serjeant previous to the time you had him at Litchfield. - A. I was the officer who received him as a volunteer from the Lancashire militia, of which he was a private; I received an exceeding good character with him from the officer; I have paid more attention to his behaviour than to any other serjeant; he has always behaved well; I never found him inhuman.

Q. We have heard that the prisoner has been a deserter. - A. When we received the volunteers, they were ordered to the Isle of Wight, to join the first battalion; we left the volunteers there, at the Isle of Wight, the prisoner was one, and he, in consequence of the good character from the Lancashire militia, was made a serjeant in the second battalion, in the thirty-eighth regiment; and after I had left there, he received a pass from the Isle of Wight to Lancashire; when he got this pass he was proceeding to join his regiment, and some person took him up as a deserter.

Cross-examined by Mr. Gurney.

Q. You say he was excessively riotous several times, you marched in the rear of the escort, can you tell me of any other instance that you know of your own knowledge. - A. Frequently going along the road, I have heard him speak words that were very incorrect, both to me and the serjeant.

Q. From Newport you marched all the way to St. Alban's, that was thirty miles, that was a very long march. - A. It was.

Q. A very unusual march for deserters. - A. It was.

Q. You stated that you thought there was a public house half a mile this side of Barnet; in point of fact do not you know there is none till you come to Whetstone. - A. I do not know exactly the place, I did not proceed with the deserters; I sent the deserters on, and remained with the deceased, to see that he was taken care of.

GUILTY, OF MANSLAUGHTER , aged 31.

Confined Six Months in Newgate , and fined One Shilling .

Second Middlesex Jury, before Lord Ellenborough.