427. GEORGE BARRINGTON proceedingsdefend This name instance is in set 525. was indicted for feloniously stealing on the 26th of February last, in the parish of St. Martin in the Fields , one watch, with the case made of gold, value 5 l. one watch chain, value 10 s. two stone seals set in gold, value 20 s. one base metal key, value 1 d. the property of John Bagshaw proceedingsvictim , Esq.

(The prisoner objected on his first arraignment to Mr. Bond, the foreman of the first Middlesex Jury, and was therefore arraigned and tried by the second Middlesex Jury, to none of which he objected.)

JOHN BAGSHAW < no role > , Esq; sworn.

I lost my watch on the 26th of February last, about a quarter of an hour or twenty minues after five in the evening, in the passage that leads to the pit, going into Drury-lane Theatre, in that passage which you enter from Russel-Court, and some yards from that particular part of it where the money is received, which is some yards from the pit door.

Be so good as to describe what happened to you there? - On the 26th of January last I went to Drury-lane Theatre, in company with another young Gentleman, in order to see Mrs Siddons, the play was Macbeth; we were under the necessity of stopping a few minutes till several persons that were before us had gained admittance; at this time there might be perhaps six, seven, or eight persons who each entered the pit passage, pretty near the same time that we did, or immediately after; I speak of them that were behind us; while we were waiting for those that were before us to gain admittance, I fancied I felt somebody at my breeches pocket, I immediately put my hand to my breeches pocket, and I found my watch was taken; on turning my head, the prisoner at the bar, whom the moment before I lost my watch, I had particularly taken notice of, as standing on the right side of me, rather a little behind me, not immediately in a line, was then standing with his back to me, endeavouring to make his way out through the persons that were collected together; I said nothing, but immediately followed him; as soon as we had cleared the persons who were behind us, excepting one person who stood by himself, and at about the distance of two or three yards from anybody else; I immediately laid hold of him, and said, Sir, you have got my watch; his answer was, have I, Sir, got your watch? I replied that he had; he immediately endeavoured to get away from me, at the same time holding out his hand as with an intention of offering something to that person who was at a very small distance from him, close by him almost at the time, but at the distance of two or three yards from any of the persons who were going into the pit; at this moment I heard something fall to the ground, and the breaking of glass; I immediately put my right hand to the ground, picked up my watch, and put it into my breeches pocket.

Court. From what part of the ground did you pick up your watch? - Pretty nearly in a line perpendicularly with his body; not quite, but rather perpendicular with his arm, as it appeared to me to be held out; as soon as I had recovered my watch, a scuffle immediately commenced between the prisoner, the person to whom he held out his hand, as if with intention to offer the watch, and myself.

What part did the other man take? - Barrington endeavoured to get from me, the other man pulled me back from him, the other man assisted Barrington, and took a more active part than Barrington himself; in the scuffle they threw me down to the ground; he was disengaged for a moment, I only tell on my side, and fortunately recovered myself instantaneously and followed him; he had not got above six or seven yards before the alarm was given, and some persons coming up he made no further resistance; I took him immediately to the public Office in Bow-street.

Mr. Silvester, Prisoner's Council. I understand, Sir, you are very short sighted? - I have that misfortune.

There were many people crowding? - There was no great crowd, there might be six, seven, or eight.

You do not mean to be particular? - I am not.

Who first told you the watch was there? - I was not told of it.

No one person then said to you here is a watch, and gave you the watch? - No.

You did not see it fall? - I did not see it fall, but I am positive it fell from the prisoner at the bar; and my reasons are, because the person who stood at three or four yards distance, whom I never saw before or since; the watch could not fall from him, because he did not leave the crowd at the time I followed the prisoner, and I followed him instantaneously as I found the watch was gone.

FRANCIS LAVALL < no role > sworn.

I heard the watch fall to the ground; I was with Mr. Bagshaw, I was next to him when he lost his watch; I observed a little before he missed his watch, a man pushed me very much, I came close to Mr. Bagshaw, and told him I saw a man who was very much in a hurry to get in; the prisoner might be at the distance of three or four yards off.

Do you recollect his posture at the time he seized him? - I do not.

Was there anybody besides you that was near to him? - I did not observe anybody.

What became of the prisoner and Mr. Bagshaw after he had seized him? - Mr. Bagshaw accused the prisoner with having his watch, upon which I heard it fall; they might be removed from the place where he originally seized him before; I heard the watch fall, it fell upon the ground, Mr. Bagshaw picked it up and put it in his breeches pocket.

Can you tell who it fell from? - I cannot.

Did you observe where it fell? - I did not, but I heard the breaking of glass upon the ground.

Who were near you at the time that the watch fell? - I did not observe anybody near me at the time; I did not take notice.

Where was Barrington at the time your watch fell? - With Mr. Bagshaw, he had him in his possession, the watch fell nearly under Barrington.

Was there any other person near enough for it to have fallen from them? - I did not observe any near enough.

How many yards from the place where you stood when Mr. Bagshaw missed his watch was it that the watch fell? - Three or four yards, I should imagine they had gone back so far.

Was there no noise or disturbance about the watch before it fell? - There was a scuffle between Mr. Bagshaw and the prisoner, when he accused him of having his watch, he said, have I your watch, upon which I immediately heard the watch fall.

Mr. Silvester. Did not this alarm the attention of every body about; there was one person accusing another of taking a watch, did not they flock to see what it was about? - I think there were one or two people who instead of helping Mr. Bagshaw assisted the prisoner.

What was you about? - I was rather confused.

Then there might, but you did not observe them? - I do not believe there were any near enough to hear it.

You know there were several people behind him? - I did not observe anybody at all; Mr. Bagshaw was thrown down somehow or other.

That was before the watch fell? - No, after.

Where the watch fell from, or how it fell, you do not know? - I know no more than what I have said.

Court. Did you see the watch upon the ground? - I did not.

Which way did Mr. Bagshaw stand to pick it up? - I did not see.

Did you see him stoop to take it? - Yes.

Did he stoop towards the place where the prisoner stood, or from him? - He stooped forwards, Barrington was close by his side at that time, he had hold of him.

Did he stoop directly before him, or to the side were Barrington was, or to the other side? - Straight before him.

How near was anybody to him at the time he stooped, besides Barrington? - I did not observe anybody at that time.

Court. George Barrington < no role > , you are now to make your defence; what have you to say to this charge? - Prisoner. My Lord, I humbly beg leave that Mr. Bagshaw may be asked one question.

Court. What is it, Mr. Barrington? - Prisoner. He says that he saw my hand extended as if I was giving something to some person; did he see anything in my hand, or did he see me give anything? - I certainly saw nothing in the hand of the prisoner at the bar.

Prisoner. I should be glad also to ask him whether he saw me give anything, or saw me drop any thing, or whether he had any reason to suppose either by speaking, talking, or confederating, in any other respect according to the idea which he has endeavoured to insinuate to the Court, that I had an accomplice, or that there were any grounds to suppose any such thing?

Court. He has given, you observe, the reason for that; which was, that one person who was the nearest, but was at some distance, when you came to struggle, assisted you, and endeavoured to prevent him from taking you; he has given no other reasons for supposing you had accomplices but that; does any other question occur to you that may be material for your defence?

Prisoner. My Lord, I should be glad Mr. Bagshaw may be asked, whether he recollects any person saying, here is the watch upon the ground.

Court. He has answered that already; he says, no, that he himself heard the crash of glass, and stooped and picked it up, nobody said so to him.

Mr. Bagshaw. I did not hear a syllable of the kind.

Jury. What position was his hand in when he offered something, was it shut or open? - I cannot particularly answer that question, he had a great coat on, and held it in this kind of manner, at this distance, I cannot particularly say, but I think it seemed to be in this kind of manner, with the palm open downwards, I cannot positively answer that question.

PRISONER's DEFENCE.

May it please your Lordship and you Gentlemen of the Jury.

With humble submission I entreat your candid attention, and I trust the ears and hearts of all in this Honourable Court will be as open and ready to receive impressions in my favour, as they may be to admit those of a contrary nature. The evening in which this matter is stated to have happened I went to see the play, it was Macbeth, the house was filled early, and hearing it mentioned that there was no more room at that side, I was going to another part of the house, when I was accosted by the prosecutor, who said, Sir, you have got my watch. I told him I had not, and that he should be satisfied of it in any manner he chose. There were several persons present at the time. An altercation took place, during which a by-stander cried out, There is a watch on the ground. This was at some yards distance from him. The prosecutor ran, but whether he stooped himself, or it was given him by a by-stander, I cannot say; but he took it, and declared it to be his. It has been stated, that when he accused me, I extended my hand, as if I was offering something to some person; whether I did or not I cannot take upon me to say; but I trust that it will not be considered as an unnatural position for any person so accused, to extend his arm or hand. Perhaps it will be more reasonable to imagine, that an endeavour would be made to conceal them, if the accusation had been just; and I trust, Gentlemen of the Jury, that it will be worthy your most serious consideration, that while this circumstance is mentioned in order to criminate, the prosecutor has acknowledged, at the same time, that he saw nothing in my hand, saw me drop nothing, or give any thing to any person whatever. It has been stated, that during the altercation he received some violent treatment, and though he has acknowledged it did not proceed from me, yet an endeavour has been made to turn it to my disadvantage. I most humbly beg leave to observe, that in consequence of the alarm a croud came, and hearing such a charge made, and seeing two people disputing, both decently dressed, and much alike in heighth, and not immediately knowing which was the accused person, some, more violent than the rest, might have laid hold of him, as the others did of me, until they were satisfied which was the accuser. This I humbly conceive, and this alone, gave rise to the violence complained of; and though it has been laboured to impress the Court, with an idea that it proceeded from accomplices, yet I humbly hope, that, where there are no solid proofs to establish such an idea, it will not be received; and therefore that in this, as well as in every other circumstance of surmise or conjecture, it will be deemed as just and charitable to suppose for as to suppose against the prisoner; and I trust too, that the justice and humanity of this Honourable Court will not allow that a man, though he may be unfortunate enough to have a blemished character, shall be made responsible for offences which others have committed, or that a surmise or supposition will be suffered to supply the place of clear convincing proofs. Whether those that have appeared on this occasion are of that kind or not, would be presumption in me to say; I humbly hope they are not. But I must beg leave. Gentlemen of the Jury, with all humility, to call your attention for a moment to another subject, which, though it has not, and ought not to have, any connection with the evidence, may, without much care, have weight in deciding my fate. It has been my misfortune to have suffered much from ill-natured report, and from wanton invention, at a time too, when I can truly say, that I had been using my best endeavours to merit commendation instead of reproach; and I thought to have had it in my power to have given convincing proofs of this to the Court, from a gentleman in whose employment I have been for some time, but who is now absent on his affairs in Ireland. Desirous of having his testimony, which I knew must be favourable to me, I thought to have requested of the Court, to defer my till the following sessions; but being told that the absence of witnesses which was character, was not in general deemed sufficiently material to defer a trial, I have omitted troubling them with the application. And although, under these circumstances of imprisonment and an impending trial, yet they have not secured me from the effects of inconsiderate wantonness. Circumstances have been related of me which never happened, and others have been cruelly exaggerated. I do not say this in order to excite your compassion, but to allay inflammation. Gentlemen, prejudice sees through a glass, which makes things appear quite different from what they really are; you best know, Gentlemen, whether, in consequence of any thing of that kind, your minds may have contracted a biass unfavourable to me. If, upon reflection, you think that they have, I am sure you will carefully examine your breasts; and if upon a cool and impartial consideration of the evidence alone, you think or doubt, that it is not of that perfect and substantial nature, which should induce you to find a verdict against any other person, I am sure you will not against me, since you must be fully sensible, that in such a case it would be a conviction from prejudice, and not from evidence. But, Gentlemen, I have an implicit confidence in your goodness; and I trust you will not only lay aside all passion and prejudice yourselves, but that you will be pleased to make a candid allowance for the effects of it in others; and that you will proceed with that cautious and tender regard, which good men feel when the fate of a fellow-creature is depending, and which will insure satisfaction to your minds, when words cannot be recalled, and when the power of prejudice is no more."

Mr. Baron Eyre < no role > summed up the evidence to the Jury, and then added:

Gentlemen, this is evidence in its nature circumstantial; the circumstances that go to impute the charge of stealing this watch to the prisoner are, that according to Mr. Bagshaw, he was immediately next behind him, or rather at the moment he felt his watch, standing on his right side; that the prisoner's position was shifted the moment he found his watch gone, and the prisoner was making his way out; that he followed him beyond five or six persons that were nearest behind, and when he got out from them, and there was only one person standing near him, and he at two or three yards distance, after the prisoner had been seen holding out his hand, the watch did fall to the ground from somebody; nearly in a perpendicular line from the prisoner's arm, as it was stre tched out: these are circumstances that are of a nature first of all to render it probable, from the situation that the prisoner stood in at the time it was missed, that he might take the watch, and that render it somewhat more than probable from the situations, that the watch must have fallen from the prisoner, and could have fallen from nobody else; that is the nature of the evidence, and if the circumstances are sufficient to satisfy you, that the watch could have fallen from nobody but the prisoner, then that is equal undoubtedly to direct proof that the watch did fall from the prisoner: the prisoner has made a defence, which nobody could hear without lamenting, that a man possessed of such talents, should have the misfortune to stand accused of a crime of this nature, or to have a character in any degree blemished, that should prevent such talents from being exerted to his own advantage, and the advantage of the public; for certainly those talents might have placed him in a very different situation indeed, from that in which he stands now, it might have intitled him to the respect and the regard of the public, instead of being a person accused of an offence of this nature: what impression that defence will make is quite another consideration; the ability is one thing, and the application of it, to answer this charge, another thing; the first point was to excuse his retiring after the watch was missed, which as he alledges, was, because he understood the pit was full, there is no evidence one way or the other about that; with respect to the rest of the defence, it goes to contradict the evidence that the watch did fall to the ground; now from Mr. Bagshaw's evidence, the watch did certainly fall to the ground immediately within his hearing, and almost close to him, which is the very point of the case; because if the watch had been found on the ground when they came out, and nobody could say that it had fallen from any body, it would stand quite an uncertain thing how it came there: and there would be nothing to impute to the prisoner respecting it; but if it did fall so as to make it most probable that it did fall from him, after he had been challenged with having the watch, and after he had held out his hand in that manner, which occasioned the observation you have heard, of that you will judge: as to the rest of the defence, it seems to be an application to your humanity; you will undoubtedly feel yourselves disposed to wish, that a man who could make such a speech to you, was innocent of this and every other crime; but with those wishes about you, you will still examine the evidence with a proper attention, and due investigation of the circumstances of this charge; the circumstances against him are, that he was near the prosecutor when the watch was missed, that he shifted his posture in a moment, that he was then retiring from the play-house, where his business was to have gone in, without establishing the fact to you that the pit was full, and after that, at that moment the watch falls from somebody; you will be to say whether these circumstances satisfy you that the watch fell from him, if they do, they certainly amount to a clear and convincing evidence that he is guilty of the fact; if, upon a due consideration of the case, it appears to you that it is not sufficiently authenticated that the watch was in his possession by falling from him, and that the circumstances of the case, though justifying a general suspicion against him, are not sufficient to convince you that he was the person concerned in stealing this watch, then you will acquit him; and if you do acquit him, I hope, that a man possessed of such talents as he is possessed of, and having, as he says, friends which may assist him, and by which those talents may be made of advantage; that he will turn them to that advantage, and will make a good use of them; and that this will be the last time that we shall see him in this place.

The Jury conferred a few minutes, and gave a verdict,

NOT GUILTY .

Tried by the first Middlesex Jury before Mr. Baron EYRE < no role > .