at work and two iron wedges were stolen from a field some time last
spring, but whether in February or March I cannot say, only I recollect
that there was then snow upon the ground. I loosed from work between two
and three o’clock on the day on which the articles were stolen, and went
to Edinburgh, and on my way thither, about four o’clock, I observed two
men in blackish clothes standing upon the ploughed land by the plough to
which the coulter belonged, and there was a black dog at some distance
from them.[3] When I came to work next morning I found the coulter of
the plough and the wedges had been taken away. [Here the coulter and the
wedges referred to in the indictment were shown to the witness.] These
are the coulter and wedges that were stolen from my plough.
Cross-examined by Mr. JOHN CLERK, for George Smith--How do you come to
know that?
WITNESS--I know this to be the same coulter, my attention being called
to it from this circumstance particularly, that a short time before it
was stolen it was sent to a smith, with instructions to sharpen it the
whole length, that it might be fit for cutting the turf which was to be
ploughed up. He did not observe these instructions, but returned it in
the situation it is now in.
[Sidenote: Grahame Campbell]
17. GRAHAME CAMPBELL, sometime servant to the pannel, George Smith,
called in and sworn.
WITNESS--I was servant to the prisoner, George Smith, and I know the
other prisoner, Mr. Brodie. I never heard of the Excise Office being
broke until I was apprehended, along with my mistress and Andrew
Ainslie, and committed to prison in the beginning of last spring. I have
seen Mr. Brodie, and likewise Andrew Ainslie and John Brown, often in
Mr. Smith’s house, and they were all very frequently there in company
together. In particular I remember their being all there one night about
the dusk of the evening, not long before I was apprehended, but as they
were so frequently at my master’s house I cannot distinguish that night
from any other, nor can I say at what hour they came, only I remember
they were in a room above-stairs, and that Mr. Brodie passed through the
shop and asked my mistress how she did to-night. Mr. Brodie was at this
time in an old-fashioned black coat, and, to the best of my knowledge, I
never saw him in the same dress before. I have seen him in other black
clothes, but they were always of a newer fashion. My master, Smith, was
upstairs with Brown and Ainslie, when Mr. Brodie came in and joined
them. I do not know when they went out, as I was employed below-stairs
in the back cellar; but I think they remained together a considerable
time before they went out. I believe they all went out together, for
when I went into the kitchen my mistress desired me to go upstairs to
put the room in order and wipe down the table, which I did, and at that
time all of them were gone. My master returned in something more than an
hour, and said he had been seeing Mr. Maclean, who is Mr. Drysdale’s
waiter. Mr. Ainslie had been in before him, but had gone out again, and
Brown came in in quest of him, and also went out again. They both
returned about ten or eleven o’clock, and Mr. Brodie then came back
likewise. Mr. Brodie had on at this time the whitish clothes which he
usually wore, and as he passed through the shop he again asked my
mistress how she did to-night. I expressed my surprise to my mistress
that Mr. Brodie should wear such a strange dress when he came in the
first time in his old black clothes, and she answered that it was his
frolick; but I took no notice to her afterwards of his having changed
his dress. They all supped in the kitchen, except Mr. Brodie, who would
not sit down, but walked up and down the room. Brown and Ainslie usually
supped at my master’s. They remained together about two hours. Mr.
Brodie went out first, and Mr. Brown and Mr. Ainslie soon thereafter,
with an intention, as they first said, to go to bed. I think they said
afterwards that they were going to play cards with Mr. Maclean. My
master, George Smith, did not go out again that night.
Cross-examined by the DEAN OF FACULTY, for Brodie--You have mentioned
that Brown and Ainslie and the prisoners at the bar, when they first
met, were a considerable while together. In what manner were they
employed?
WITNESS--I was for the most part down below in the back cellar; but they
had some bottles of porter together, and either a cold fowl or some
herrings to eat.
The DEAN OF FACULTY--You have said that Mr. Brodie and Brown and Ainslie
were frequently in your master’s house. What did they do when together;
did you ever see them play at any game--at cards or at dice?
WITNESS--I have often seen them play both at cards and at dice,
sometimes in the kitchen and at others in the room above-stairs, but
chiefly at dice, when Mr. Brodie was present.
The LORD JUSTICE-CLERK--My Lord Advocate, is the witness now at liberty?
I understand she has been detained in prison for some time past?
The LORD ADVOCATE--There is no reason for detaining her any longer; she
was only confined until her evidence should be given in this trial.
The LORD JUSTICE-CLERK--Grahame Campbell, you are now at your liberty.
[Sidenote: Mary Hubbart or Hubburt]
18. MARY HUBBART or HUBBURT was then called.
Mr. JOHN CLERK, for Smith--My Lords, the witness now called is the wife
of George Smith, the pannel at the bar, and therefore I object to her
evidence being taken in this trial.
The LORD ADVOCATE--My Lords, I certainly do not intend to examine this
witness as to any particular that relates to the conduct of her husband,
but I conceive that she is an unexceptionable witness against the other
pannel, Mr. Brodie, and that I am entitled to examine her as to him, if
I keep clear of any question that has a tendency to bring out the guilt
of her husband.
Mr. JOHN CLERK--My Lords, I desire your particular attention to this,
that the two pannels are joined together in one indictment, that they
are charged with being guilty of the same crime; and that they are in
every respect in the same circumstances. I have no conception, my Lords,
of any question tending to the crimination of Mr. Brodie that will not
at the same time bring out the guilt of Mr. Smith.
The LORD ADVOCATE--My Lords, that I may remove all apprehensions
concerning the questions I mean to put, I shall only ask the witness
whether Mr. Brodie was in her house on Wednesday, the 5th of March last;
when he came there; and in what manner he was then dressed?
Lord HAILES--My Lords, it is clear that this woman cannot be examined as
a witness against her husband; but at the same time, although her
husband and Brodie are here tried upon one indictment, I see nothing to
prevent my Lord Advocate from putting such questions to her as do not
affect her own husband, but only the other pannel.
Lord ESKGROVE--My Lords, I am of the opinion which has been delivered by
my Lord Hailes.
Lord STONEFIELD--My Lords, I am of the same opinion.
Lord SWINTON--My Lords, I agree with the opinion given.
The LORD JUSTICE-CLERK--My Lords, there is no doubt that a wife cannot
be received as a witness whether for or against her husband, and her
situation is different by our law from that of all other near relations.
If a son, for instance, is brought forward as a witness against his
father, he may no doubt decline to bear testimony, and no Court of law
can compel him to do so; but if he is willing to give his evidence it
may be received. A wife, on the contrary, cannot be received as a
witness, even though she be willing; a judge can pay no regard to what
she says either for or against her husband; and, supposing she had no
objection to give her testimony even to hang him, which might happen, it
must be refused; therefore, my Lords, whatever this woman says that may
infer guilt against her husband must be totally thrown out of
consideration; nor will I suffer one single question to be put or her to
say a single word from which his guilt can be inferred; and the jury are
not to give any attention whatever to it, if it should happen that
anything should drop to the prejudice of her husband.
Mr. JOHN CLERK--My Lord Justice-Clerk--
The LORD JUSTICE-CLERK--What! Mr. Clerk, would you insist on being heard
after the Court have delivered their opinions? It is most indecent to
attempt it.
Mr. JOHN CLERK--I was heard, my Lord, on the general point of the
admissibility of this witness, but not on the special objections which
I have to the questions which my Lord Advocate proposes to put, and on
which the Court have not delivered any opinion.
The LORD JUSTICE-CLERK--Mr. Clerk, this is really intolerable.
The DEAN OF FACULTY--My Lord, although as counsel for Mr. Brodie I am
not entitled to be heard on this subject, I find myself called upon to
interfere as Dean of Faculty. It is perhaps not strictly in order for
Mr. Clerk to insist on being heard after your Lordships have delivered
your opinions, but some indulgence ought to be shown to a young
gentleman.
Lord HAILES--My Lord Justice-Clerk, though Mr. Clerk stated his
objection generally, yet he did not enter into particulars, and I think
he may be allowed now to state what particulars he meant to insist on.
The LORD JUSTICE-CLERK--Mr. Clerk, we will hear what you have to say.
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
[Illustration:
Lord Hailes.
(_After Kay._)
]
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.