Part 11

Mr. JOHN CLERK--My Lord, I mean to offer a special objection to the interrogatory mentioned by my Lord Advocate, on which I have not yet been heard, nor do I understand that any opinion has been given respecting it by your Lordships. It is proposed to ask this woman what dress Mr. Brodie wore when in her husband’s house on the 5th of March last previous to the robbery of the Excise Office. I formerly observed, my Lords, that my client and Mr. Brodie are accused of the same crime, and are nearly in the same circumstances, and this is a question from the answer to which it may appear that Mr. Brodie was guilty of the robbery laid to his charge. But at the same time, my Lords, it will appear that Mr. Brodie was at the house of my client in a suspicious dress and in suspicious circumstances, and will it not be from thence concluded that my client was engaged with him in the very design which he at that time intended to put in execution? Such a presumption would likewise be most forcibly corroborated by their known intimacy, by their being frequently concerned in the same pursuits, and, above all, by the presence of the other two persons who are supposed to have committed this crime. I say, my Lords, on the supposition that Mr. Brodie is guilty, the circumstance of his dress is one of the strongest presumptions that can be figured against my client.

But, farther, my Lords, my client has an interest in preventing the conviction of Mr. Brodie; if his guilt is not proved an inference is afforded me of the innocence of my client, for Mr. Brodie being with my client so recently before the crime was committed presumes that they were employed in the same manner; and the suspicion against Mr. Brodie being groundless is an argument that the suspicion against my client is equally groundless. Now, my Lords, if this woman be examined her evidence may, though indirectly, tend to the crimination of her husband. And if the law does not allow the evidence of a wife to be taken against her husband, I cannot see that there is a good distinction between her evidence as taken directly and indirectly; and therefore, my Lords, I hope that your Lordships will sustain the objection.

The LORD JUSTICE-CLERK--The Court will take care not to allow the witness to give any answer against her husband. But, as she is a good witness against Brodie, the Court cannot help it if, by establishing his guilt, a presumption thereby arises against Smith. I am therefore for repelling the objection.

The objection was repelled accordingly.

[The witness was then brought in.[4]]

Mr. WIGHT, for the pannel Brodie--My Lords, I must object to this witness upon another ground, and shall not take up the time of the Court any longer than simply to state the objection, which appears to me perfectly irresistible. The law of this country requires that the name and designation of every witness to be examined against the pannels should be intimated to them at least fifteen days before; but the name of the woman who now appears in Court is not to be found in the list of witnesses served upon the prisoner. There is indeed a “Mary Hubbart or Hubburt, wife of George Smith,” mentioned as a witness in the indictment, but the present is no such person; her name is perfectly different, being Mary Hibbutt, as appears by an extract of the parish register where she was born, which I now produce. The objection, therefore, of a misnomer applies in full force to this witness.

The LORD ADVOCATE--This appears to me a very extraordinary and frivolous objection, for, even supposing the witness’s name is Hibbutt instead of Hubbart or Hubburt, still there could not possibly be any mistake as to the person, since she is designed the wife of George Smith, and it is not pretended that she is not the wife of that person. This woman emitted several declarations before the Sheriff; in some of them she is called Mary Hubbart and in others Mary Hubburt. At first she pretended she could not write, and the only declaration subscribed by her is signed Mary Smith; so that the prosecutors, who had no other opportunity of knowing her real name than from the declaration, were left altogether in the dark as to it. As the witness allowed herself to be called Hubbart or Hubburt in the declaration without challenge it is not competent for her now to deny it.

My Lords, it is of no sort of consequence in the present case that there has been a mistake of a letter or two in the witness’s name; it was perfectly unnecessary to have designed her in any other way than Mary Smith, wife to George Smith, and if that would have been sufficient, certainly an attempt

to be more particular cannot have the effect of injuring the pannel, and therefore can be no valid objection against this witness.

The DEAN OF FACULTY--My Lords, I cannot help considering this as a question of the greatest consequence, for if this objection is not sustained, then the objection of misnomer cannot have any longer effect, for if the change of a letter or two, as insisted on by the Lord Advocate, does not afford that objection, there can be no such thing as a misnomer, since the whole difference betwixt names consists only in change of letters.

I am free to admit that if this witness had only been libelled Mary Smith, wife of George Smith, particularly as she had subscribed her name Mary Smith, then there could not have been stated any objection to her examination. But as she is particularised to be Mary Hubbart, it is a sufficient objection to me that the name of the woman now present is not Mary Hubbart, but Mary Hibbutt, a perfectly different name. There still may be a mistake of the person although she is designed wife to George Smith, for it may happen that Smith may have two wives. There is not a greater difference betwixt Erskine and Friskin, which last name is not uncommon in this country, than betwixt Hubbart and Hibbutt. It is all one under what name she is mentioned in the precognition, as that was not her doing; neither is it probable that she knew by what name she was there called. My Lords, there has not been a witness examined here this day that can know by what name he has been taken down by the Clerk.

The LORD ADVOCATE--My Lords, I beg that the witness may be desired to write her name.

The LORD JUSTICE-CLERK--Mary Hubburt, you will sign your name.

[The witness signed her name accordingly.]

The DEAN OF FACULTY--My Lord, the witness has subscribed her name “Hibbutt.”

Lord HAILES--The name of Hobart is the name of the very respectable family of Buckinghamshire, in England, and I would have supposed that this woman’s name, since it so nearly resembles it, was the same, and would not have taken her own word to the contrary. Hibbutt, nevertheless, is perfectly different from Hubbart, and, however obscure it might be, still, as it is proved by the parish register to be the name of the person now called, I consider myself obliged to give weight to the misnomer.

The DEAN OF FACULTY--I beg pardon for interrupting the Court, but I am just informed that this point has been decided by Lord Eskgrove and Lord Stonefield at the Glasgow Circuit, where a misnomer of “James Roberton” instead of “James Robertson” was sustained. There, there was only the want of a letter, whereas there is certainly a much greater difference betwixt the names here in question.

Lord ESKGROVE--As to the case mentioned by the Dean of Faculty, Robertson and Roberton are two perfectly distinct names. In the case before your Lordships there can be no doubt that if this woman had only been libelled as wife to George Smith, without her maiden name, there could have been no question whatever. It is the universal custom in England that the maiden name sinks into that of the husband’s, but my great difficulty is, in this case, that the public prosecutor, in giving this witness a further description than was necessary, has totally mistaken her name, I do not think that there is any force in her being called Hubbart in the precognition for the same reason given by the Dean.

[Here his Lordship was interrupted by the Lord Advocate.]

The LORD ADVOCATE--My Lords, the circumstances which I meant to prove by the witness are so immaterial that I will give the Court no further trouble with the matter. I agree to pass from this witness.

Lord ESKGROVE--I am very happy I am relieved from deciding it, as I was going to deliver an opinion for sustaining the objection.

The LORD JUSTICE-CLERK--Mary Hibbutt, you are at liberty to go where you please.

[Sidenote: Daniel Maclean]

19. DANIEL MACLEAN, waiter to William Drysdale, innkeeper in the New Town, called in and sworn.

WITNESS--On the night of Wednesday, the 5th of March, on which the Excise Office was broken into, I was in company with John Brown and Andrew Ainslie in the house of one Fraser in the New Town from about half-past nine to eleven o’clock at night; we drank some punch together, and there was one Price and some others in company with us. I remember to have received a five-pound bank-note from the prisoner, George Smith, on the next night after the Excise Office was broken into, in order to purchase a ticket in the mail-coach for his wife to Newcastle. The note was battered on the back. I carried it to John Clerk, Mr. Drysdale’s book-keeper, but he could not change it, and therefore I applied to Mr. Drysdale himself, and then carried back the change of the note, after deducting the price of the ticket, to Mr. Smith.

[Sidenote: John Clerk]

20. JOHN CLERK, book-keeper to the before-mentioned William Drysdale, called in and sworn.

WITNESS--I remember that Daniel Maclean, Mr. Drysdale’s waiter, came to me the next night after the Excise Office was broken into for a ticket in the mail-coach to Newcastle for some person, and offered a five-pound bank-note in payment. I had not change myself, and therefore desired him to apply to Mr. Drysdale. He laid the bank-note upon the table, but I did not then look at it. Mr. Drysdale changed the note. On the Monday following I received it from Mr. Drysdale, with directions to carry it to the Sheriff-Clerk’s Office, which I did.

[Sidenote: David Robertson]

21. DAVID ROBERTSON, merchant in Edinburgh, called in and sworn.

WITNESS--I am a hardware merchant. I remember that Mr. Brodie, the prisoner at the bar, purchased a spring saw from me about eight or nine months ago. [Here one of the saws libelled on was shown to the witness.] This saw bears my shop mark, and it was such a one that I sold to Mr. Brodie. [The counsel for the pannels here repeated the objection against adducing the two spring saws, as mentioned in the general objection and interlocutor before taken down.] I have sold the same kind of saws to different persons. Cabinetmakers sometimes make use of such saws in the way of their business, but Mr. Brodie told me that the one he purchased was for cutting off the natural spurs of game-cocks. Some time afterwards another person, whom I do not know, came to my shop and purchased another spring saw; he asked for such a one as Mr. Brodie had bought. [Here the other saw was shown to the witness.] This saw also bears my shop mark, and it was such a one that I sold to the person I have already mentioned.

[Sidenote: William Middleton]

22. WILLIAM MIDDLETON, indweller in Edinburgh, called in and sworn.

WITNESS--I am in the employment of the Sheriff-Clerk’s Office. I have been acquainted with John Brown _alias_ Humphry Moore for some time past, and I remember the robbing of the Excise Office. Brown came to me upon Friday, the 7th of March last, about eleven o’clock at night, and informed me that he wanted to make some discoveries concerning that robbery and the other late robberies which had been committed in this place. I desired him not to give me any information, but to keep his mind to himself, and I would take him to a person to whom he might communicate whatever he had to say. Accordingly I conducted him that same night to Mr. Scott, the Procurator-Fiscal, and afterwards, at his own desire, to the bottom of Salisbury Crags, where Brown pointed out a place in which we found a number of false keys under a large stone. These we brought to town with us to the Procurator-Fiscal’s house. The next day I was sent into England along with Brown in search of the goods belonging to Messrs. Inglis & Horner, silk mercers, which had been stolen from their shop; and Mr. Frier, a partner of that house, accompanied us.

The DEAN OF FACULTY--My Lords, it is not proper that the witness should be allowed to speak of facts that have no relation to the present trial.

The LORD JUSTICE-CLERK--William Middleton, you are to confine yourself to such facts as relate to or are immediately connected with the breaking into the Excise Office, which is the charge brought against the prisoners.

WITNESS--Upon Sunday, the 16th of March last, the prisoner, George Smith, was carried at his own desire to the bottom of Warriston’s Close,[5] and I accompanied him, along with Alexander Williamson and James Murray, sheriff-officers. Smith there pointed out a hole in a wall where a false key, a pair of curling irons, and a small iron crow were hid, which, he said, had been used in breaking open the Excise Office; whether they were covered with earth or not I cannot say, as the prisoner himself put in his hand and brought them out. [Here a false key, a pair of curling irons, and a small iron crow were shown the witness.] These are the same articles that were so found. [The counsel for the pannels here repeated the objection against adducing the iron crow, the curling irons or toupee tongs, and dark lanthorn, as mentioned in the general objection and interlocutor before taken down.] I was present at the search that was made in Smith’s house; there was nothing found in it. I was likewise present on the day following at a search that was made in Brodie’s house and yard, when one part of a dark lanthorn was found in a necessary house, and another part in a pen where fowls or game-cocks had been kept. [Here the dark lanthorn libelled on was shown to the witness.] These are the two parts of the dark lanthorn which were so found. The prisoner, George Smith, informed me that the small crow was used in breaking into the Excise Office.

Cross-examined by the DEAN OF FACULTY--Did Brown inform you, previous to your going to England, that the prisoner, William Brodie, had any concern in the robbery of the Excise Office?

WITNESS--He told me that there was a gentleman whom I knew, and whom I little suspected, concerned in it, but he did not mention his name.

[Sidenote: Alexander Williamson]

23. ALEXANDER WILLIAMSON, sheriff-officer in Edinburgh, called and sworn.

WITNESS--I was present, along with George Williamson and James Murray, when there was a search made in the house of William Brodie, the prisoner, upon the 10th of March last, and in the course of the said search I saw a pair of pistols wrapped in a black stocking taken from under the earth in the fireplace of a shed in his yard. [Here the pistols libelled on were shown to the witness wrapped in a green cloth.] These are the pistols, and they were found in that green cloth. [The counsel for the pannels here repeated the objection against adducing the pistols, as mentioned in the general objection and interlocutor before taken down.]

Cross-examined by the DEAN OF FACULTY--How came you to say that they were found in a black stocking?

WITNESS--I saw a black stocking on the table, and that misled me.

The DEAN OF FACULTY--You are to speak from what you know, sir, and not from what you see on the table.

WITNESS--I am certain that it was in a green cloth they were found.

[Sidenote: James Murray]

24. JAMES MURRAY, sheriff-officer in Edinburgh, called in and sworn.

WITNESS--I was employed, along with Alexander Williamson and some others, to search the prisoner’s (William Brodie) house upon the 10th of March last. In the course of the search we found a pair of pistols in a green cloth covered with earth in the fireplace of a shed. I think that it was myself that dug them out of the earth. [Here the pistols libelled on were shown to the witness.] These are the pistols that were so found. I afterwards saw one part of the dark lanthorn found in a necessary house, and another part of a dark lanthorn found in a pen where game-cocks had been kept. I accompanied the other prisoner, George Smith, upon the 16th of March, to the bottom of Allan’s Close,[6] and he there pointed out a hole in a wall, where, he said, there were some articles hid. I put in my hand and brought out a false key, a pair of curling irons, and a small crow. [Here the articles formerly produced were shown to the witness.] These are the same that were so found.

Cross-examined by Mr. JOHN CLERK--You say that you put in your hand and brought out these articles; are you sure it was not George Smith who did so?

WITNESS--I put in my hand; George Smith could not, being handcuffed.

[Sidenote: George Williamson]

25. GEORGE WILLIAMSON, messenger-at-arms in Edinburgh, called in and sworn.

WITNESS--I was employed with others to search the house of the prisoner, William Brodie, on the 10th of March last, and found several keys of an uncommon construction in a room off Brodie’s shop. We likewise found a pair of pistols wrapped in a green cloth under the earth in the fireplace of a shed in the woodyard. These were discovered by Smith, the prisoner, poking with an iron. [Pistols shown to witness.] These are the same that were so found. We also found several pick-locks in Mr. Brodie’s house, all of which were lodged by me in the Sheriff-Clerk’s Office. [Here the pick-locks were shown to witness.] These are the same pick-locks that were so found. [The counsel for the pannels here repeated the objection against adducing the pick-locks, as mentioned in the general objection and interlocutor before taken down.] I was sent in quest of Mr. Brodie, who was supposed to have gone to London, by Mr. Scott, the Procurator-Fiscal, upon the 11th of March last. I left Edinburgh about eleven o’clock at night. When I arrived at Dunbar I got some accounts of him; Mr. Brodie had left that place in a post-chaise. At Newcastle I was informed that he had taken the “Flying Mercury” post-coach to York; and I was afterwards informed that he had continued in it till he came to London. When I arrived in London I was informed by the coachman that Mr. Brodie did not go with the coach to the stage office, but that he had quitted it at the foot of Old Street, Moorfields. I waited upon Sir Sampson Wright, and at his desire I called upon Mr. Walker, solicitor-at-law in the Adelphi, and inquired for Mr. Brodie. He told me he was bad, and that I could not see him. I said I had a letter for him and wanted only to deliver it; but Mr. Walker replied that it might perhaps be dangerous to allow me to see him.[7]

The DEAN OF FACULTY--My Lords, without meaning any reflection on the witness, whom I know and believe to be a very good man and an active officer, the greatest part of what the witness says is “hearsay.” He tells your Lordships that he was told one thing at Dunbar; that he received another piece of information at Newcastle; that a coachman told him so-and-so in London, and that Mr. Walker said this, that, and the other thing. My Lords, this is exceedingly improper. I have been taught to understand that in criminal trials the best evidence that can be got ought always to be brought; and surely it will not be pretended that that has been done in the present case. In a question of this kind, hearsay evidence is not admissible. The witness has said that he was informed so-and-so by coachmen; why were not these coachmen called as evidences? He has given you an account of a conversation that passed between him and Mr. Walker; why is not Mr. Walker brought here to speak for himself?

The LORD ADVOCATE--My Lords, it was thought a material circumstance to be proved that the prisoner, William Brodie, fled from this country; that he secreted himself in London; and the witness, who was sent in pursuit of him, was considered as a proper person to be examined as to the fact. In the course of informing the Court what he himself did he has necessarily mentioned what passed between himself and some other persons. This cannot be said to have been hearsay evidence, being what the witness himself knows.

My Lords, the Dean of Faculty has asked why the different post-boys and coachmen who drove the prisoner to London, why Mr. Walker and others were not all cited as witnesses? The bringing forward of such a variety of witnesses is not only unnecessary but expensive. By the forms of criminal procedure in this country a trial must be finished at one sederunt; but, my Lords, if the mode contended for by the Dean of Faculty had been pursued in the present case this trial could not have been finished in a month.

The LORD JUSTICE-CLERK--George Williamson, you will confine yourself to what you know or did yourself, and do not speak of what you were told by others.

WITNESS--I searched for the prisoner in London, but could not find him. I also went out to Deal and Dover, but could receive no intelligence of him. Accounts were afterwards brought to this place that he had been apprehended in Holland and brought to London. I went to London for him. He was delivered over to me at Tothilfields Bridewell, and I conducted him to this place and lodged him in the Tolbooth.[8]

[Sidenote: Andrew Ainslie]

The SOLICITOR-GENERAL--The next witness is Andrew Ainslie.

The DEAN OF FACULTY--Before this witness is called I rise to state to the Court an objection against his admissibility. This witness is alleged to have been guilty of the same crime of which the pannels at the bar now stand accused, and therefore the objection of his being a _socius criminis_ might apply to him. But although by our former law the objection of a witness being _socius criminis_ might render him inadmissible, yet I have no occasion, nor is it my intention, to insist on the present objection in that view, for I freely own that the practice of this Court has for some time past, and with great propriety, I think, over-ruled that objection.