Part 32 (1/2)

_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?