_Vernon_ replied that the matter was entirely in the discretion of the Court, and that Shepard could ask for nothing as a matter of right.
The judges, I apprehend, act as they see fit on these occasions, and few of them (as far as I have observed) walk by one and the same rule in this particular; some have gone so far as to give leave for counsel to examine and cross-examine witnesses, others have bid counsel propose their questions to the court; and others again have directed that the prisoner should ask his own questions; the method of practice in this point is very variable and uncertain; but this we certainly know, that by the settled rule of law the prisoner is allowed no other counsel but the court in matters of fact, and ought either to ask his own questions of the witnesses, or else propose them himself to the Court.
He then asked Jarrit Smith one more question, to which he replied.
VERNON--Sir, I think you were present when Mr. Goodere was brought to Bristol after his brother"s being killed; I"d be glad to know whether you then heard him say anything, and what, concerning this foul business?
SMITH--I was present when Mr. Goodere was brought to Bristol after this murder happened, when he was asked (before the justices) about the seizing, detaining and murdering sir John Dineley; and he then directly answered that he did not know that his brother was murdered or dead. He was then asked in relation to the manner of seizing him, and carrying him away; he said he knew nothing of it till he came to the boat, and when he came there he saw his brother in the boat; but he did not know that his brother had been used at that rate.
SHEPARD--Mr. Smith, Sir, you are speaking about sir John; by what name did you commonly call him?
SMITH--Sir John Dineley Goodere.
THE RECORDER--Mr. Goodere, have you any questions to ask Mr.
Smith?
GOODERE--Yes, Sir. Mr. Smith, I ask you what sir John Dineley"s business was with you, and how much money were you to advance?
SMITH--Five thousand pounds, Sir; and I told him that I was satisfied that it was a good t.i.tle.
GOODERE--I ask you if you knew him to be a knight and a baronet?
SMITH--I can"t tell; I never saw the letters patent.
GOODERE--Can"t you tell how you styled him in the writings?
_Vernon_ objected to this, because baronetage must be derived from letters-patent, and therefore could not be properly proved by Mr.
Smith"s personal knowledge; and added that it was not material, because the indictment alleged that the person murdered was Sir John Dineley Goodere, and the prosecution would prove that he usually went by that name.
To this _Shepard_ answered that if the person killed was a baronet, and was not so described, there was a misdescription, and the prisoners could not be convicted on that indictment.
_Vernon_ then argued at some length that the necessity of setting out a personal description in an indictment applied only to the defendant, and that all that the law required in the description of the person on whom the offence was committed was a convenient certainty; and that a description by the Christian and surname sufficed. Besides, this was all begging the question, for as it did not appear in proof that the deceased was a baronet, he might, for all that appeared judicially, have been christened Sir John.
Had we called the deceased in the indictment sir John Dineley Goodere baronet, then, Sir, we should probably have been told that we had failed in proof of the ident.i.ty of the person, for that the baronetage was in its creation annexed to, and made a concomitant on, the patentee"s name of Goodere, and waited only on that name; and that the deceased, considered as a baronet, was not of the maternal name of Dineley, and so upon the matter no such person as sir John Dineley Goodere baronet ever existed _in rerum natura_.[53]
_Shepard_ pointed out that they could not be expected to produce letters-patent to show that the deceased was a baronet, because the prisoner had not been allowed to see, or to have a copy of his indictment; and that it was only on hearing it read that the defence became aware that the deceased was not described as a baronet. He therefore hoped that Goodere might be allowed to ask the question he proposed of Mr. Smith, who having been familiar with Sir John, and seen all his papers and t.i.tle-deeds, must know the certainty of his t.i.tle and degree.
_The Recorder_ held that it was sufficient if the deceased was described by his Christian and surname; and that the question proposed to the witness was improper, for that it was not material whether the deceased was a baronet or not.[54]
_Morris Hobbs_ was the landlord of the White Hart. He could see Mr.
Jarrit Smith"s house from his windows; and had seen the prisoners before.
VERNON--I would not lead you in your evidence, but would be glad you"d give an account to Mr. Recorder, and the jury, whether Mr. Goodere (the gentleman at the bar) applied to you about coming to your house; if so, pray tell us when it was, and upon what occasion?
HOBBS--The 12th of January (which was on Monday) captain Goodere and Mahony came to my house; captain Goodere asked my wife, Have you good ale here? She said, Yes; he also asked, What place have you over-head? I answered, A closet, a place where gentlemen usually sit to look out. Will you please to let me see it, says he? Yes, Sir, said I. I went up to shew it, he and Mahony went up; the captain said it was a very fine prospect of the town; he asked for a pint of ale, I drawed it, and he gave it to Mahony, he drank it: and then the captain asked my wife, whether he might have a dish of coffee made to-morrow morning? Sir, said she, it is a thing I don"t make use of in my way; but, if you please, I will get it for you.
Then he told her, he would be there to-morrow morning by about nine o"clock. Mahony was by then.
VERNON--Did you hear this discourse pa.s.s between your wife and Mr. Goodere?
HOBBS--Yes, I did, and then the captain paid for his pint of ale, and went away; and the next morning (being Tuesday the 13th of January) he came again to my house before my wife was up, and I was making the fire (for I keep no servant). I did not know him again, I thought he was another man; says he, Landlord, can"t you open them windows in the parlour? I told him, I would, and so I did; he looked out, and I thought that he had been looking for somebody coming from College prayers.
He asked where my wife was? Says I, she is a-bed: because, said he, I talked with her about having some coffee for breakfast. I told him, she should come down presently, but I had much rather he would go down to the coffee-house, where he would have it in order. No, says he, I will have it here. My wife came down, he asked if he might go upstairs where he was before; he went up, and by and by Mahony and three men more came in; I did not know Mahony"s name; when they came in, the captain was above stairs; he directed me to make his men eat and drink whatever they would, and he would pay for it; I brought them bread and cheese, they eat what they pleased; Mahony went backwards and forwards, up stairs and down several times; he went out, but where, or what for, I did not know.
VERNON--Did Mahony, when he went up stairs, go in to Mr.
Goodere?
HOBBS--Yes, several times; Mahony put the coffee, and some bread and b.u.t.ter, and made the toast, and did everything for the captain, I thought he had been his footman. When the captain had breakfasted, and had made the men welcome, he shifted himself (some porter brought fresh clothes to him). By and by a man rid along, who, I believe, was sir John Goodere"s man, with pistols before him; I heard somebody say that it was his man: and soon after the captain had shifted himself, Mahony went out about a quarter of an hour, and came back sweating, and went up to the captain; and I looking out of the window saw the man on horseback, and leading another horse (which I took to be his master"s) and by and by sir John mounted, and rid down between my house and the church; and I had some glimpse of him, and heard the captain say, Look well at him, but don"t touch him.
THE RECORDER--This you heard the gentleman above stairs say to the four men below?
HOBBS--Yes, Sir, he spoke these words to the four who came in.
VERNON--Did sir John and his man appear to have any arms?
HOBBS--Yes, Sir, they had both pistols before them.
VERNON--Those men that were along with Mahony, do you know what ship they belonged to?
HOBBS--There was a young man, I believe something of an officer, came to my wife, and asked her, Is the captain of the man-of-war here? She answered that she did not know; but there was a gentleman above, and there were six other men besides in the other room in another company, which I did not know belonged to the captain, until he ordered six pints of ale for them. The captain ordered entertainment for ten men.
VERNON--Where were those six men?
HOBBS--In the kitchen; they did not belong to the man-of-war, nor were not in company with the other four.
VERNON--Now, will you proceed to give an account what followed upon Mr. Goodere"s saying, Look well at him, but don"t touch him.
HOBBS--As soon as sir John went down the hill, this Mahony stept up to the captain and came down again, and he and the other three in his company went down the hill, and the captain followed them; the clothes which the captain pulled off were left in the room; when the captain was going out at the door with his sword and cloak, I thought I was pretty safe of my reckoning, because of his clothes being left. The captain said at the door, Landlady, I will come back and pay you presently.
VERNON--How long was it before Mr. Goodere returned to your house?
HOBBS--He came again in about a quarter of an hour: When he came again, he went upstairs, changed a guinea, he asked what was to pay? I told him four shillings and one penny half-penny, and then went away. About an hour and a half after Mahony and the other came again, sweating, and said they had been a mile or two out in the country. Mahony asked credit for a tankard of ale, and said his master would come up on Sat.u.r.day following, and then he would pay for it: Well, said I, if he is to come up on Sat.u.r.day, I will not stand for a tankard of ale; but if he don"t come, how shall I have my reckoning? Says Mahony, I live at the Scotch arms in Marsh-street. Well, said I, I will not deny drawing you a tankard of ale, if you never pay me. Said he, You had best get the room ready against Sat.u.r.day, and make a fire, and just dust it.
VERNON--Pray, when Mr. Goodere went away from your house was he in the same dress as when he came that day?
HOBBS--No, Sir. When he came there he had a light-coloured coat, and he looked like a country farmer at his first coming in; but when he was out, he had a scarlet cloak on, wore a sword, and had a cane in his hand; a porter brought him the things.
VERNON--Do you know any thing of what happened on the Sunday following?
HOBBS--Yes, Sir; the Sunday morning Mahony came to my house, having trousers, a short jacket and leather cap on, asked for a quart of ale, this was Sunday: My wife said, Don"t draw any more upon tick. Mahony gave a sixpence and paid for it, and said, See that the room be clear, the captain will be up in the afternoon, and then he will be here; And as he was going out of the house, he said to me, If you fortune to see that gentleman go up with the black cap before that time, do you send a porter to me to the Scotch arms. I told him I had no porter, and could not send. About 3 o"clock in the afternoon when he came again with a person who had a scalled face, and one or two more, a man who lodged in the house came and told me, that they wanted to go up stairs; but I would not let them, because it was in service-time. They all went into the parlour, and had a quart of ale, and when that was drunk, Mahony called for another; and then eight or nine men more came and called for ale, and went into the parlour, but still kept looking out; and one of them being a little fellow, I don"t know his name, kept slamming the door together, ready to break the house down. Says I, Don"t break my house down about my ears, don"t think you are in Marsh-street; then the little fellow came up as if he was going to strike me, as I was coming up out of the cellar with a dobbin of ale in my hand, for a gentleman going to the college; I saw this gentleman (pointing to the prisoner Samuel Goodere) and the deceased walk down the hill, I looked after them, and so did Mahony; and then all those men rushed out, and followed them. Mahony paid the reckoning, and went away: I ran in to see after my tankard for I was more afraid of losing that than the reckoning. And that is all I do know from the beginning to the end.
VERNON--How long did he continue at your house on the Sunday?
HOBBS--I believe, Sir, an hour and a half; and there was some or other of them still looking out and waiting at the door.
THE RECORDER--You say that Mahony desired you that if you saw the gentleman in the black cap go by, to send a porter; who did you apprehend that gentleman to be?
HOBBS--The gentleman that rode down the Tuesday.