it himself the very Thursday before the event, which happened on Tuesday. It appeared to him to be covered either with a sheet, or a large table-cloth, and was just opposite to the four-mile stone, near Baver-lane; he pursued it, and in doing so, he saw it put the sheet or table-cloth round its head, and run off. This ghost had alarmed the neighbourhood about six weeks or two months, and many people were very much frightened. There was a rumour of mischief having been occasioned by it, though he himself did not know what that mischief was. He had been acquainted with the prisoner for some considerable time past, and always found him an exceed ingly good-tempered young man; and never discovered any thing like a cruel disposition. Ann Milward, the sister of the deceased, said, that she lived with her father, and that betwixt the hours of ten and eleven o'clock, on the night of the 3d of January, her brother (who lived at his father-inlaw's) came to her father's house, and said he had been seeking for his wife, who was at a Mr. Smith's; the witness, as well as her father and mother, were just going to bed. She asked her brother to sit down, which he did, and remained about half an hour; he then bad his father, mother, and the witness good night, and walked out, having heard the watchman calling the hour. The witness having occasion to go the door, almost immediately after her brother, she heard a voice calling out, "Tell me who you are, otherwise I will instantly shoot you." Soon after a gun actual ly went off, and she saw her brother fall. She called out, "Thomas!" and returning to her mother, she said to her, "I believe my brother is shot." Neither her father nor mother would believe it; she then went out, and discovered her bro ther lying perfectly dead; the pri soner was not present, but she afterwards saw him, in company with Mr. Lock. She returned home very much shocked, and was at that time unable to learn any more of the transactions.-(Cross examined. Her brother had on his working dress, which consisted of long white trowsers and waistcoat. She had often heard of the ghost, and it was described in various ways; but was said to be dressed particularly in white, with long horns, and glass eyes; she never thought of cautioning her brother of any danger he might be in from wearing a dress so similar in appearance to that of the ghost. She knew nothing of any animosity subsisting betwixt the deceased and the prisoner; and she believed they hardly knew each other but by sight. Mr. Flower, a surgeon, deposed, that he examined the body of the deceased, and found that he had received a gun-shot wound in the lower part of the left jaw; it ap peared to have been occasioned by a ball of the size of No. 4: it had penetrated the vertebræ of the neck, and had injured the spinal marrow of the brain. He entertained no doubt of the wound having been the real and sole cause of the deceased's death; it was such a wound as is well known to occasion immediate death; it disfigured the jaw, and he observed that the face was all blackened with the powder from the gun.-(Cross examined.) He did not know Mr. Smith personally, but he understood that his character was very good, his temper was very mild, and that he was very far from being of a vindictive disposition. The (12) The prisoner, on being called on for his defence, said, he would leave it to his counsel; but on being told that they could not speak in his behalf, being only allowed to examine his witnesses, he stated, that on the day on which that fatal catastrophe happened, he went out with a good intention, and at the very moment of the affair taking place, he did not know what he was doing. He spoke to the person twice, and was so much agitated on receiving no answer, that in his confusion and dread, he was unfortunate enough to commit the rash action; but he solemnly declared to God, that he had no malice against the deceased, nor any intention of taking away the life of any individual whatever. On behalf of the prisoner, his counsel called Phebe Foulbrook, mother-in-law of the deceased, who lived at her house; she had frequently heard of the ghost. On the Saturday evening, the deceased said to her, that he had been taken for the ghost, and that two ladies and a gentleman had been frightened at him coming along the terrace; and that he told them, that he was no more a ghost than they were. On hearing this, the witness advised him to put on a great coat for fear of accident, and not to frighten any person again: this was the only time she thought of cautioning him relative to this matter. Thomas Groom, servant to Mr. Burgess, a brewer, in Hammersmith, deposed, that he had heard a great deal of talk concerning the ghost; and that one night lately, about nine o'clock, when he and a fellow-servant were walking through the church-yard, he met with it, and was very much alarmed; that it laid hold of him by the chin, and that he put forth his hand, on A great many witnesses were then called, to speak solely to the prisoner's character; and all concurred in giving him one of the very best, and proved that he was a young man of a remarkably raild temper, and of a humane, generous, and benevolent disposition. On the conclusion of the evidence relative to this unfortunate affair, the lord chief baron addressed the gentlemen of the jury to the fol lowing effect : "The prisoner at the bar stands indicted of the wilful murder of Thomas Milward, by shooting him with a gun so as to have been the occasion of his death. It is proper for me to state to you, that although it is necessary, in order to constitute the crime of murder, that malice must be proved to have existed betwixt the accused and the deceased; yet I must here take the opportunity of explaining to you what the law intends by the expression malice. It is not necessary that he who has killed should have known any thing of the deceased, or have entertained spite against him; but it is that disposition to kill, and the act of killing, for which the law finds no excuse or extenuation. Suppose that a man fires a gun into this hall, in which we are now assembled,if he were thereby to kill any individual, he is to be deemed in the eye of the law guilty of murder. If a man intends to shoot at one person, and instead of doing so he kills another, against whom he might be able to prove that he entertained no malice or spite, he is nevertheless guilty of murder. The killing of a person through apprehension for one's own safety, or by mere accident, may indeed be styled styled only manslaughter; but unfortunately such circumstances cannot be found in this case. It is important to observe, that neither you nor I, on this occasion, need to take upon us any province which does not belong to us, the law having already sufficiently described the circumstances which constitute murder. If then there appear to you none of those excuses or extenuations which I have alluded to, the crime at present under our consideration must necessarily be denominated murder. If the law were otherwise, and if a man could say that he thinks another deserves death for having committed such and such an act, and therefore goes to the highway, and executes judgment with his own hands, by shooting robbers, or others, whom he may deem troublesome, dreadful might be the consequence. It is fortunate that the law of this country has made such an offence to be murder. Even in the case before us, no person can be allowed to say, "I will of my own accord go out and shoot this abominable person, who has alarmed the whole neighbourhood," however much disgusted he may be at the crime. It was sufficient to endeavour to apprehend him, for such is the law on the subject. If therefore, gentlemen, you entertain no doubt with respect to the fact, I should betray my duty, and injure the public security, if I did not persist in asserting that this is a clear case of murder, if the facts be proved to your satisfaction. All killing whatever amounts to murder, unless justified by the law, or in selfdefence. In cases of some involuntary acts, or some sufficiently violent provocation, it becomes manslaughter. Not one of these circumstances occurs here. There He has is here no apparent intention of the prisoner's wishing only to apprehend this person; instead of that, which would have been the proper step in such a case, he is proved to have taken out a gun in order to shoot him, erroneously imagining he was entitled to do so. been proved to have fired at the deceased with a degree of rashness which the law does not justify. What may be the effect of such a degree of malice, more properly belongs to another, and a much higher tribunal to determine; but in this court no such crime can be deemed to amount to less than murder." His lordship then recapitulated the whole of the evidence to the jury, who, after retiring for about an hour and a quarter, returned, and gave in their verdict-Guilty of manslaughter. On hearing this verdict, it was stated by the bench, that such a judgment could not be received in this case, for it ought either to be a verdict of murder or of acquittal. If the jury believed the facts, there was no extenuation that could be admitted; for, supposing that the unfortunate man was the individual really meant to have been shot, the prisoner would have been guilty of murder. Even with respect to civil processes, if an officer of justice uses a deadly weapon, it is murder, if he occasions death by it, even although he had a right to apprehend. Mr. justice Rooke entirely concurred in the sentiments of the learned judge who presided, and which were the sentiments of the whole court. Mr. justice Lawrence was entirely of the same opinion. The person who had imposed on the credulity of the neighbourhood of Hammersmith Hammersmith was undoubtedly guilty of a misdemeanour, for which the prisoner would have been warranted in apprehending, but not in shooting him. Supposing that the deceased had committed a felony for which he might have suffered death, the law was clearly laid down that the person who killed that felon was guilty of murder. In a civil case, where a person was vested with legal authority to apprehend a delinquent, it was laid down by judge Foster as law, that if a person in execution of such a power use a deadly weapon,not necessary for the apprehension of the delinquent, he is guilty of murder. In the present case the prisoner had not been taken by surprise, or influenced by any sudden and involuntary impulsa. He had gone out with the expectation of meeting what he supposed he had actually encountered. The evidence too proved that he was fully aware of what he was doing at the time, he having threatened the deed which he performed before its actual execution. It was of infinite consequence to the law of the country, and to the safety of the public in general, that this case should be determined agreeably to the established law, which had been so clearly laid down to the jury by the learned judge who presided at the trial. The jury were, therefore, desired to reconsider the case, and amend their verdict; which they accordingly did, and returned a verdict of-Guilty. The recorder then proceeded to pronounce the awful sentence of death upon the prisoner, who seemed to be very much affected by his unfortunate situation. Silence being called, he addressed him nearly as follows: "Francis Smith, you have been tried by the most attentive and intelligent jury, to whom the law on this unfortunate case has been fully and ably stated, that in all cases of homicide it is murder, unless the person occasioning the death can prove that the act was done under authority, by accident, self-preser vation, or by a voluntary act arising from sudden and sufficient provocation. It was, therefore, incumbent on you to have given such evidence in mtigation of your heinous offence, if any such proof could possibly have been adduced. That not having been done, the jury have very properly, and according to law, found you guilty of the wilful murder of Thomas Milward. The law of God and man is, That whosoever sheddeth man's blood, shall atone for his offence by his own." The prisoner was then sentenced, in the usual manner, to be executed on Monday next. On hearing his sentence, he was so much agitated that he was unable to walk back to prison without the assistance of two of the keepers. Admiralty-office, Jan. 31. Copy of a letter from rear-admiral sir John Thomas Duckworth, K. B. commander in chief of his majesty's ships and vessels at Jamaica, to sir Evan Nepean, bart. dated at Port Royal, the 26th of Oct. 1803. Sir, I herewith transmit, for the information of the lords commissioners of the admiralty, two letters from captain Ross, of his majesty's ship Desirée, relative to vessels captured and destroyed. I am, &c. J. T. DUCKWORTH. Desirée, Mancinelle, 19th Aug. 1803. A list of vessels captured, de Sir, Having fetched into this anchorage last evening, and seeing from the mast-head, over the land, several vessels at anchor in Monte Christe roads, I dispatched the boats armed, under lieutenant Canning, of his majesty's ship I command, to bring them out; which service he performed with credit, under a heavy fire from the batteries, and returned at daylight this morning with five schooners and a sloop. I have the honour to be, &c. To capt. Bligh, &c. Desirée, Mancinelle Bay, Sir, I have pleasure in informing you, that your boats, accompanied by those of his majesty's ship I command, returned early this morning, having brought out of Monte Christe all the vessels at that anchorage, to the amount of six sail of schooners, under a smart fire from the batteries, without loss. I have the honour to be, &c. Captain Bligh. C. B. H. Ross. tained, and destroyed by his majesty's ships and vessels, at and about Jamaica, under the crders of sir John Thomas Duckworth, K. B. rear-admiral of the red and commander in chief, &ć. &c. French schooner Aimable Sophie, laden with provisions; captured by the Desirée and squadron, Sept. 17, 1803. B. Waterhouse and co. agents. French ship La Sagesse, in ballast; captured by the Theseus and squadron, Sept. 9, 1803. B. Waterhouse and co. agents. French brig Papillon, of 6 guns, 55 men, and 100 tons, in ballast; captured by ditto, same date. G. and A. Stewart, agents. French brig Trois Amis, of 12 men, and 200 tons, in ballast, captured by ditto, same date, and the same agents. French schooner Le Coureur de Nantz, of 17 men and 70 tons, laden with flour, wine, &c.; captured by ditto, same date, and the same agents. Schooner Sally, of 8 men and 130 tons; captured by ditto, same date, and the same agents. Schooner Mary, of 5 men and 90 tons; captured by ditto, same date, and same agents. Schooner Two Friends; captured by the Desirée and squadron, Sept. 9, 1803. B. Waterhouse and co. agents. French sloop (name unknown) in ballast; captured by the Hunter and Inglefield, same date, and the same agents. American schooner Polly, laden with coffee and sugar: captured by ditto, same date, and the same agents. Schooner Ursula, laden with flour and provisions; captured by the 1 |