The Sun.
London, England, 1859-03-12 00:00:00

ASSIZE INTELLIGENCE.

MIDLAND CIRCUIT—NoTTINGIum, March 11.
(Before the Lord Chief Justice Campbell.)

Thomas Brown Birkett was charged with the
wilful murder of William Watmore, at Barnby-in-
the-Willows, on the 18th of November, 1858.
Mr. Boden and Mr. Bristowe appeared for the
prosecution ; Mr. O'Brien and Mr. W. H. Adams
for the prisoner.
Benjamin Vessey—ln November last I was in
Mr. Gilbert's employment, who lives in Barnby
Manor farm. The deceased, William Watmore,
was also in his employment as a watcher and
trapper. Watmore lived at a house called Kellich,
about a quarter of a mile from Mr. Gilbert's house.
On the 18th of November witness went to Wat-
more's house at 9 p.m. to go to a watching with
him to some land in the occupation of Mr. Gilbert.
We went to some land called the Corporation-close,
which adjoins some land in the prisoner's occupa-
tion. There is a gate between the two closes. I
was taking up rabbits and resetting the traps in
Corporation-close. I heard guns going off several
times, from half-past nine to a quarter to ten ; the
sound seemed to come from prisoner Birkett's land.
After the last gun went off the deceased shouted
" Mark !" In about five minutes I saw the prisoner
standing against the Fate between the two fields.
Tho night was moonlight and frosty, and the stars
shining. I and deceased were about 150 yards from
the gate. The prisoner called loudly, " Where are
those traps marked with H. G.' that belong to
me 9" Watmore answered shouting, " We haven't
any ; I don't know anything about them." The
prisoner replied, " You're a liar and a
thief." Watmore called him a "bucket head" seve-
ral times. I said he was a " chuffy face" several
times. We were still at the distance named. The
prisoner said, "If you'll come here I'll rightle'
you" (a term which the prisoner could not interpret).
Watmore said to me, " We'll go, and he shall have
the chance. We went up to the gate. When we got
to it the prisoner was four or five feet from the
gate, in his own close. Watmore went up to the
catch•end of the gate, and I to the hinge-end.
Birkett was nearer to the catch-end. Prisoner
remained where he was, four or five feet from the
gate. We two were leaning against the gate on
the Corporation close side of it. Prisoner said to
Watmore, " I want to know where those traps are
that were marked ' H.G.'" Watmore said, " I
havn't got the traps, and I don't know anything
about them." Burkett said, " That's all I wanted
to know." He then called Watmore a thief.
He had with him a double-barrelled gun, which he
held under his right arm with the muzzle down-
wards. The gun was in that position during the
conversation I have mentioned. When the prisoner
said " That's all I wanted to know," he placed it in
a horizontal position, and put in on full cock. He
then put the gun to his shoulder, still standing four
or five feet from the gate, and said to Watmore,
" You're a thief!' Watmore said, " I'll make
you prove me one." The prisoner then fired the
gun, which was pointed towards Watmore, who
was still standing on the other side of the gate
from the prisoner, leaning near the catch-end of it.
The gate was shut and fastened with a staple and
snack. The prisoner was at this time standing a
little bit sideways to the gate, and the gun pointed
a little side-ways towards it. Upon the gun being
fired, Watmore fell backwards dead. I saw, before
it was fired, that it was pointed at the left breast.
I said to Birkett, " You've killed him." Both I and
Watmore had sticks. Neither of us raised them
before the gun was fired, nor in any way threat-
ened the prisoner •, and I never saw him move from
the spot, described as four or five feet from the gate,
until the gun was fired. I pointed out the spot
where the prisoner stood to Mr. Gilbert, the next
morning, and also where I and the deceased stood.
When I told prisoner Aat he had killed Wat-
more, he said, " Watmore was going to strike
me with his stick." Watmore was not near
enough to have struck Birkett and did not lift his
stick at all. I had my eye on Watmore at the
time, and I can say positively that he did not
lift his stick. When prisoner said he was going
to strike him with his stick, I said he was not,
I then asked prisoner what we were to do. He
replied " Go and fetch some assistance and I'll stay
with him." I went away and told Mr. Gilbert
and he came to the spot. I had had no quarrel
with the prisoner, nor had Watmore in my presence.
I got a horse and cart and took the deceased to Mr.
Gilbert's farmhouse.

Cross-examined by Mr. O'Brien—When first I
heard the shots I did not know who was shooting,
but when the deceased shouted " Mark !" it was so
as to be heard by the person shooting, and when
he called I knew it was Mr. Birkett on his own
land. The gate is entirely on his own land. He
shot up the field until he got to the gate. When
he went up to the gate he did not place his gun
resting on the top bar of the gate. I could not,
when I was 150 yards away, see where the gun
was, but the prisoner was four or five feet from it.
He was not leaning against the gate at the time.
I never saw him nearer to the gate than four or five
feet. He remained in one position the whole time.
The gate is about the ordinary size. Birkett's field
was barley stubble. 'On Birkett's side the ground
is level. The deceased man was leaning over the
gate when the shot was fired, and I was at the
remote end. When I saw the gun levelled I did
not call out to the deceased. I was in such a posi-
tion that I could see both the prisoner and the de-
ceased. Prisoner is accustomed to walk as if in a
sort of crippled state with his hand on his back ; I
can't say which hand. I have seen him walk with
a stick and without one. I didn't see that he had
a stick that night. (Witness again described the
manner in which the gun was held.) The muzzle

PRICE 4D. STAMPED, SD.

was two feet and a half from the gate. When I
called out " You've killed him," prisoner said, " Oh,
Ben (witness's name), " he was going to strike me,
you know ;" but did not add, " and I reeled back."
Re-examined—When the shot was r - -
the hang-end of the gate, in a positi.-
at the same time. Prisoner stood „ „,„
me and Watmore, who never raised his stick.
Gilbert occupies a farm near Newark, at
Barnby. Deceased was employed to catch rabbits.
About half-past 10 p.m. he was called up, and found
Vessey at his house ; from what he said witness
went to the gate adjoining the Corporation Close,
and found the prisoner Birkett on the other side,
on his own land, standing with a gun in his hand.
Watmore was lying dead on witness's side of the
gate, which was shut—about a yard from the gate,
flat on his back, with his head towards the catch
end, parallel with the Fate. I got over into Bir-
kett's field by some railings, and said " Oh ! you
villain." I seized his gun, and took it away from
him ; it was double-barrelled ; one hammer was
down and the other on full cock. I drew the trigger,
and the cap alone exploded. I then pitched the
gun over the gate into the Corporation field, and
got over to look at Watmore's body, which was
nearly cold. I told prisoner to go home, and he
reeled rather backwards, and I said, " Why, you
villain, you're drunk." He said he was not. Pri-
soner's wife came up, and said he was not. I called
her attention to the body, and she went home. I
then got over the hedge to ascertain whether he
was drunk. I took hold of his collar, but I could
not find whether he was drunk by any smell of
liquor ; he said he wished to explain. I told him
he must do so to some one else. I again told him
to go home ; that Watmore's brother was coming ;
and that if he came I thought he would kill the
prisoner. Prisoner then said, " I want to explain
that it was an accident." He then walked away as
if he was sober. 'T waited until the cart came to
take away the body, which was conveyed to my
farm-house. Mr. Job, the survon, was called in.
I examined the spot next morning, and found the
gun•wad near the gate, and a half wad. I examined
the gate also, the catch end of which was all over
blood, and had some flesh on it. I also found the
mark of a shot on the lower part of the top bar.
(Part of the gate was produced, and the mark
pointed out at the bottom of the top bar, near the
catch end.) The course of the shot was down-
wards, so that at the time of the discharge the
butt -end must have been raised. (Marks of
scorching and powder also appeared, from which
the witness inferred that it must have been
near at the time). Vessey pointed out where
lie and deceased and prisoner stood, and
witness measured the distance. From where pri-
soner was stated to have stood to the nearest part
of the gate was 6 ft. 10 in. The ground on the side
where prisoner stood is rather higher than wherep
Wetmore stood. Deceased was about sft. 4in. high;
he was rather shorter than the prisoner. The top
rail of the gate was 4 feet and 2 inches from the
ground. On the prisoner's side it was 3 feet 10
inches. Birkett, the prisoner, had some three weeks
before said to me that Watmore and Vessey had
stolen his rabbit traps. I told him I could not be-
lieve it, I did not allow anything of the kind, but
I would inquire.
Cross-examined by Mr. O'Brien—As to the pri-
soner's habit of walking with his hand to his hack,
prisoner twice said he wanted to explain it, but it
was only once that he said it was an accident. The
ground rather ascends than dips into the prisoner's
field. There is no dip, to the best of my belief. It
was a stubble field. I believe there was no furrow
between the point where prisoner was said to have
stood and the gate. The left hand hammer was
down.

Thomas Walker examined said—l apprehended
Birkett on the charge of shooting the deceased. I
told him I apprehended him on the charge of shoot-
ing William Watmore. He said, " I did shoot
him ; it's a bad job ; I will go with you, policeman,
to the place where it happened." I went with the
prisoner to the gate, and he showed me the position
which he stood in ; it was about half a yard from
the gate, with his gun leaning on the top bar of the
gate. He saw Watmore and Vessey in the other
field. He said, I shouted, " Bring back those traps
you've stolen, you thieves." He said Watmore and
Vessey came to the gate, and prisoner called them
about the traps they had stolen, upon which Wet-
more was in the act of striking him over the head.
He drew back and his gun went off ; he did not
know how. This was on the same night. I asked
the prisoner whetherhe had had anything to drink.
He said he had had one glass of gin since it hap-
pened, to 'settle his mind. He appeared as if he had
had drink, from the manner in which he walked
and the confusion he was in.
Warrant, a policeman—About 4 a.m. following
the night in question witness saw the prisoner, and
asked Walker, in the prisoner's presence, whether
he had told the prisoner the charge. Walker said
"Yes." Prisoner said that it was an accident, and
a very bad job. Watmore and Vessey had had
some words with him ; he had his gun-barrel on
the top of the gate. " Watmore got up his stick,
and I thought he was going to strike me. I
stumbled back a little, and the gun went off. I
don't know how." Mr. Gilbert gave me the stick
and gun produced.
Cross-examined—He said he did not know whe-
ther his coat caught the gun or not. After he was
in the lock-up he explained to me that he held the
gun in his left hand, and that he stumbled back
and that his arm was stretched out in stumbling
The ground was not very even. The field on the
prisoner's side had been ploughed, and the furrow
not well harrowed in within one and a half or two
feet from the gate. I brought the gate away on
Monday, and observed marks thereon as of a man
having stood on the gate, or as if getting over or
leaning over. (The gate was again produced.)
William Hough, blacksmith, saw the prisoner
Birkett on a stile about a year ago, and had a con-
versation with him. He said that some one had
stolen some of his traps ; that -William Watmore
had stolen them. He said, " D—n his eyes, if I
catch him I'll shoot him." I told Wetmore that he
had threatened him.
Cross-examined by Mr. Adams—Prisoner asked
me if I knew anything about them. I have never
seen him since.
Richard Wilson said—l live at Balderson, near
Newark. Prisoner has several times spoken to me
about traps. On the Saturday before this transac-
tion he said Benjamin Vessey and Watmore had
had some of kis traps, and if the traps were not
brought back again he should mark Watmore. On
the Saturday, night previous I asked leave to go
across his field. He said I should not go.
Thomas Gabey, examined, said—l live in pri-
soner's service. At 10 p.m. on the 18th prisoner
went out with a gun, as he often did. I had heard
him a fortnight before say that he would give Wet-
more and Master Edward Gilbert a charge as soon
as he had a chance. Christopher Brown was pre-
sent at the same time.
Cross-examined—Did not hear him say that he
intended to charge them before the magistrates for
stealing his traps.
John Hall, examined said—l live at Barmby,
near Newark. I know the prisoner, and was at
his house on the Sunday before Thursday, the 18th.
Had been on friendly terms. I heard that he had
accused me of taking his traps, and I called to clear
myself. I said, I " suppose you blame me for
taking them ?" He said, " Yes, I thought you had,
for I footed somebody across my field, and I was
told that you were on that way.' I satisfied him I
had not taken them. He said, " William Watmore
and Benjamin Vessey had. I shall, do for William
Watmore the first chance I have. He said this
more than once. I went to Watmore, the deceased,
and mentioned this to him.
William Tindal, examined, said—l know the
prisoner Birkett. I saw him at Grocock's public-
house some weeks before the 18th in presence of
Thomas Gaby. I conversedf with him. Prisoner
said, I think Wetmore 's getting above his place.
He will soon be as bad as Mr. Thorpe's keeper. I'll
lay you 10s. he's not there another half-year."
Samuel Job, said—l am a surgeon practising at
Newark. I was sent for to Mr. Gilbert's to see the
deceased Watmore, and found him dead. He died
from a gunshot wound in the direction from left to
right, the wound in front being higher than that
behind; but it had gone through the body. Death
would be instantaneous.
Cross-examined--The. difference between the
appearances of the wound in front;from behind
might be caused by the obstruction the shot met
with, causing it to spread ; but my opinion was that
the shot had been fired in a downward direction.
The shot had missed the left lung, and the lower
and middle lobe of the right lung were shattered.
Cross-examined again—l do not think that the
appearances would all be accounted for by the
obstruction opposed to the shot. It would account
for the scattering of the shot, not for the downward
direction.
Mr. O'Brien, in addressing the jury for the
prisoner, in the course of his address observed that
enough had transpired to show that the prisoner,
who possessed for one in his position a large pro-
perty of some 60 or 70 acres, was not favourably
regarded by the large landed proprietors around

cs
him, or their keepers and watchers.
between the watchers and the prison%
• crippled, who was going our
accustomed, to shoot _upon his own
sought' by him, but by them. lie
counsel) could not complain at the
collect all necessary evidence in suck
every idle word the prisoner had utterel
-have been raked together. Had he harbou&l _
deliberate intent to murder, was it probable he
would have chattered about it in every public
house? Many of the words used by the:prisoner
merely indicated k's intention to give t4,watchers
in charge so soon as he had an opportunity. The
learned counsel then argued in the prisoner's favour
as to the probabilities of the different accounts
given by tho prisoner and the witness Vesscy. He
contended that the mark of feet having stood
heavily on the lower bar of the gate went to estab-
lish the prisoner's statement that the deceased stood
leaning over the gate to strike at the prisoner, and
commented on the discrepancy between the accounts
given by different witnesses respecting the nature
of the ground, whether level or uneven. He con-
tended that the unsteadiness and confusion of the
prisoner were attributable to the excitement natu-
rally arising after so painful an accident. If the
discharge had been purposely, it was most likely,
that the right barrel and not the left would be dis-
charged, considering the way in which the gun was
held ; but it was more likely that the left would be
discharged if the firing were by accident. Vessey,
who spoke of the shooting as a deliberate act, if he
saw the gun so distinctly aimed, would have called
out ; the impulse to do so would be irresistible.
He commented on the inaccuracy of Vessey as to
the distance of the prisoner from the gate when
deceased met with his death.
His Lordship, in summing. up, commended
the able address of the prisoner's counsel to
the attentive consideration of the jury, desir-
in6 them to dismiss from their minds any-
thing they might have heard out of court.
He pointed out to them that the evidence of re-
peated threats used by the prisoner made it very
difficult for them to come to any intermediate con-
clusion between the verdict of " Not Guilty" and
of " Guilty" of wilful murder. But, after comment-
ing on the evidence which his lordship read over
to them, if they were of opinion on the evidence
that the death of the deceased might have resulted
from gross negligence of the prisoner in using his
gun, they might find a verdict of " Manslaughter.”
The jury retired to consider the verdict, and on
returning found a verdict of "Wilful murder," but
strongly recommended the prisoner to mercy, on
the ground that he had received great provocation
from the watchers.
His Lordship having put on the black cap, said
that the verdict of the jury was fully justified by
the evidence. The prisoner had again and again
expressed his intention of being revenged upon the
deceased should an opportunity occur. An oppor-
tunity had unfortunately occurred, and the prisoner
had embraced it. The recommendation to mercy
made by the jury it would be his lordship's duty
to forward to the proper quarter. All that re-
mained for him was to pass upon the prisoner the
dreadful sentence of the law. This his lordship did
in solemn form.
The prisoner immediately exclaimed, " And so
much for the Game Laws !" and was removed from
the dock.

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•
Price sixpence, or free by post for Seven Stamps.
THE SPEECH of the RIGHT HON. B.
DISRAELI, Chancellor of Her Majesty's Exchequer,
on introducing THE REFORM BILL, February 28,
859.
.Authorised Edition.
London : Routledge, Widnes, aud Routledge, Farringdon-
street.

HE WHITTINGTON FREEHOLD
T-
ESTATE AND COLLIERY COMPANY (Limited.)
Registered pursuant to the Joint-Stock Companies Act, 1856-7,
by which the liability of Shareholders is limited to their
subscriptions.
Capital £60,000, in 12,000 shares of X 5 each.
Deposit on application .£1 per share, and £1 on allotment, but
no further call will be made until after 12 months, when the
remainder will be called at intervals of not less than six
months, as and when required.
DIRECTORS,
John Brown, Esq., Rose Hill, Chesterfield, Director of the
Union Bank, Sheffield.
Henry Rangeley, Esq., Unstop Ironworks, Sheffield.
William Tuxford, Esq., 106, Upper Thames-street, London.
F. R. Pierce, Esq., Whittington, Chesterfield.
Robert Simpson, Esq.,. 4, Charlotte-row, London, Blaina
Ironworks, Monmouthshire.
John Stanton, Esq., M.D., Upper George-street, Bryanstone-
square.

BANKERS.
Messrs. Smith, Payne and Smith, London.
Messrs. Crompton, Newton and Co., Chesterfield.
SOLICITORS.
Messrs. Tucker, Greville and Tucker, 28, St. Swithins's-lane.
William Clayton, Esq., Solicitor, Chesterfield.
AUDITORS.
Messrs. Harding, Pnllein and Co., Public Accountants, Loth-
bury, Loitdon.
Mr. Henry Osborne, Chesterfield Bank.
BROKERS.
London—Messrs. Scrutton and Son, 81, Old Broad-street.
Sheffield—Messrs. F. E. and S. Smith, George-street.
Leeds —T. R Flint, Park-row.
Liverpool—Messrs. Theakstone and Hargreaves, India-
buildings ; and J: W. S. May, Dale-street.
Manchester—Messrs. Johnson and Son, Stock Exchange.
Bristol—Mr, John, Kempson Thomas.
SECRETARY—Mr. R. Downman.
Offices— 27A, Bucklersbury.
This Company has been formed for the purchase of the
Freehold Landed Estate of 152 acres, together with the Ma-
chinery, Plant, and the Coal, Ironstone, and Minerals, there-
under, as also under 119 acres of land adjoining, • embracing
five seams of first-rate coal, together nearly 900 acres, adapted
forrhouse, gas, coke, and manufacturing:purposes.
The property is situated in the parish of Whittington, near
Chesterfield, on a branch of the Midland. Railway, and near
the Chesterfield Canal.
The colliery is raising above 750 tons per week, which is con-
tracted for by highly respectable firms, whilst the machinery
is capable of raising 1,000 tons per week, and as soon as the
lower seams are reached, the outlay for which is provided for
in the capital of £60,000, at least 2,000 tons per week, inde-
pendently of the ironstone, will be raised.
The present returns from the Land, Colliery
of 16 per
, and Iron-
stone, after all dednctions, will give a net profit
tendent. to the Sheholers ; and w double the
d arare ex-
tended (within two yedars) nearly thatworkings profit may be
relied on.
urchase, X 20,000 remain on
By the arrangements' for the p
mortgage over a period of years, and not more than £2 will
be called up for the first twelve months, and £2 during the
second year, beyond which it is not expected further calls
will be made.
Full particulars, together with the Valuations and estimates
and
of Messrs. Jefleock and Walker, Haslehurst, and others,
the calculations of an experienced Mineral Agent, will appear
in the prospectus, which, with Forms of Application, may be
had at the Offices of the Compariy, and the respective Solici-
tors and Brokers, to whom applications for Shares are to be
addressed.

ROYAL ENGLISH OPERA, COVENT
GARDEN, under the sole Management of Miss Louisa
Fyne and Mr. W. Harrison.
THIS EVENING will be presented an entirely new and
omantle Opera, by Mr. W. Balie, entitled SATANELLA ;
or, THE POWER OF LOVE.