Dublin, Wednesday, Dec 10
Michael Whitehorn, John Barefoot, and James Smith, were put to the bar, who stood indicted for assaulting Edmond O’Reilly, Esq. at Fortick’s Grove, in the county of Dublin, against Lord Ellenborough’s Act; there were five other counts laid in the indictment.
An application was made to the Court on behalf of the prisoner, Barefoot, that he had given full information to the Magistrates, under the hope of pardon; that they had been received and acted upon, and, therefore, it was hoped that he would be admitted an approver.
Judge DAY said, he must have regular documents verified by affidavit to act upon, and gave permission to have such made, if they could be done.
Shortly after, the affidavit of Barefoot was read, the purport of which stated, that having undergone examinations, and given informations before Edward Trevor, Esq. a Magistrate of the county of Dublin, by which indictments have been found against persons now to be tried; that he did so in the hope of pardon, and now prayed to have his trial postponed, or to be admitted an evidence.
Judge DAY desired to have the facts ascertained, whether such compacts had been entered in to by the Magistracy, and if so, the Court will hold it and pay attention to it.
The affidavit of Edward Trevor, Esq. was then produced, and stated in substance, that previous to the informations of prisoner being taken, he was told, that he was not to expect hope, nor was he required to give such under the impression of fear; but that any thing disclosed by him should not be made use of against him; and that he would be admitted an approver, but that they were not deemed to be as such.
Judge DAY said, he would take care that any disclosure of that nature should not be made use of against him.
The trial of those persons was then proceeded upon.
Mr GREENE stated the case on the part of the prosecution. The first witness called was
Edmund O’Reilly, Esq. who deposed, that on the 4th of November last, he was at the house of Mr. Jones, at Fortick’s Grove, about seven o’clock in the evening – he was sitting in the front parlour with Lieutenant Hammersley and Dr. Kiernan – Mr. Godfrey was in the hall, and said he heard a noise. and he desired the witness to open the hall-door – witness did so and went out – he saw nothing, but heard the noise of feet, and retreated into the house – some men immediately rushed in after him – and Whitethorn, one of the prisoners at the bar, cried out hurra, boys – Whitethorn struck at Dr. Kiernan, and they closed, and Murphy struck at the witness – Whitethorn cried out, cut away, boys, kill the soldier, meaning Lieutenant Hammersley, who was at this time wounded – witness received cuts in two places in the head – witness got a fowling piece, and when presenting it, Kiernan cried out, take care, and witness fired wide – the officer and Kiernan, and Whitethorn and Murphy, continued engaged – witness then being very bloody and weak, with loss of blood, went downstairs for cloths to wipe himself – on coming up stairs, he saw one man dead, and another dying (the names of these two were Murphy and Smith), and two in custody, whom he identified as the prisoners Whitethorn and Barefoot.
On his cross-examination, he said he never saw the prisoner Smith until this day; he did not see V+Barefoot in the parlour, but saw him in the house afterwards in custody; Whitethorn was armed.
Frederick E. Jones , Esq. Manager of the Theatre Royal, was next called, who being sworn, said he supposed he came there to tell the truth, the whole truth, and nothing but the truth- which being acquiesced in, he was proceeding to state a long story, but was told he must confine himself to relevant facts. Witness then stated that he received information from Mr. Justice Godfrey int he month of October last, that his house was to be attacked by a desperate gang who ingested that neighbourhood, and who were to attack other houses; witness told Godfrey he wished they would give him the preference, that it might be over, as the Theatre was to open on the 3rd of November. Godfrey mentioned it to him the day the attack was to be made, and witness brought soldiers to the house in coaches on the evening of 3rd November, however no attack was made that night, but it was fixed for the next evening, and in consequence of which, about 2 o’clock on the 4th of November, Godfrey called upon witness at the Theatre where arrangements were made by Godfrey and the witness. The plan proposed by the witness was, that soldiers should be placed in out-houses, and when the robbers entered the house that they should be secured; but Godfrey stated that two gangs were to join in the attack, and as he did not know the numbers they might amount to, he arranged it otherwise. The Guard arrived at Fortick’s Grove about half past six o’clock, on the evening of 4th November. Godfrey had information that they intended to attack a particular room up stairs, where they conceived there was a quantity of dollars, and as this was supposed to be the place of the greatest danger, and there being a young woman and children to be protected, Godfrey and the witness had some remonstrances, each being extremely desirous of having that station; witness went up stairs with some soldiers; witness had a blunderbuss charged with about 20 slugs, he stood in front, the soldiers behind him, he heard them charging as they stood behind him, and he desired them to desist; at about ten minutes before seven o’clock, he heard the hall-door open, heard O’Reilly exclaim, heard persons rush in, heard a shot fired, came down, saw soldiers firing through the door into the room, the firing ceased, and Mr O’Reilly came out; one man dropped down and died immediately after. Whitethorn and Barefoot were taken prisoner below stairs; – as a Magistrate witness said he thought it but right to state that Barefoot gave much useful information.
On his cross-examination, he could not say whether or not Barefoot’s information went to the Grand Jury.
Patrick Leggat one of Justice Godfrey’s Constables, was in the parlour – witness took the prisoner at the bar, Whitethorn, into custody below stairs first – and Barefoot afterwards, booth in the house.
Peter Harcan, a Surgeon, knows Mr O’Reilly, attended him from 4th November last – he had three cuts in his head, given by a sword or some instrument not quite sharp.
The Learned Judge charged the Jury with his usual precision, he recapitulated the evidence, and laid down the law – the Indictment was laid under a particular statute, commonly called Lord Ellenborough’s Act, which comprehended what was provided against by the statute which was formerly known in this country called the Chalking Act, and which makes the crime with which the prisoners at the bar stand charged a capital Felony – the Jury, his Lordship observed, had no evidence to criminate the prisoner Smith; they would therefore acquit him m- of the other two, if they had any reasonable doubt which should weigh in their minds, they would acquit them; if, on the contrary, they were perfectly satisfied as to the testimony of the witnesses, it was his duty to tell them they ought to find them guilty.
Verdict – James Smith, Not Guilty. Michael Whitethorn and John Barefoot, Guilty.
Thomson Family History 