Daniel Macginniss

Execution not confirmed

THE Jurors for our Lord the King upon their oath present, that Daniel Macginniss otherwise Macgenise , of the City of London, Labourer , not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the 28th day of December , in the 23d year of the reign of our Sovereign Lord George the Third, King of Great Britain, &c. with force and arms in and upon John Hardy , in the peace of God and our said Lord the King then and there being, feloniously, wilfully and of his malice aforethought, did make an assault; and that he the said Daniel Macginniss , otherwise Macgenise, with a certain bayonet made of iron and steel, value one penny, which he the said Daniel Macginnis , otherwise Macgenise, in his right hand then and there had and held, in and upon the left side of the said John Hardy , a little below the left breast of the said John Hardy , feloniously, wilfully, and of his malice aforethought, did strike, thrust, stab and penetrate, giving him, the said John Hardy , by such striking, thrusting, stabbing and penetrating with the bayonet aforesaid, in and upon the left side of the said John Hardy , a little below the left breast of the said John Hardy , one mortal wound of the length of three quarters of an inch, and of the depth of four inches, of which the said John Hardy instantly died: and so the Jurors upon their oath say, that he, the said Daniel Macginnis , otherwise Macgenise, feloniously, wilfully and of his malice aforethought, did kill and murder him the said John Hardy , in manner and form aforesaid, against the peace of our said Lord the King, his crown and dignity .

The said Daniel Macginnis , otherwise Macgenise, was also charged upon another indictment for that he not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the 28th day of December, in the 23d year of the reign of our Sovereign Lord George the Third, King of Great Britain, &c. with force and arms upon John Hardy , in the peace of God and our said Lord the King then and there being, feloniously and in the fury of his mind, did make an assault, and that he with a certain bayonet made of iron and steel, value one penny, which he the said Daniel Macginnis , otherwise Macgenise, in his right hand then and there had and held, the said John Hardy then and there feloniously and in the fury of his mind, in and upon the left side of the said John Hardy , a little below the left breast, did strike, stab and thrust; the said John Hardy not having there any weapon drawn, nor having first struck him the said Daniel Macginniss , otherwise Macgenise, giving him the said John Hardy , by such striking, stabbing and thrusting in and upon the left side of the said John Hardy , a little below the left breast of the said John Hardy , one mortal wound of the length of three quarters of an inch, and of the depth of four inches, of which he instantly died,

against the peace of our said Lord the King, his crown and dignity.

(He was also charged on the Coroner's inquisition for the wilful murder of the said John Hardy , and described as before.)

THE JURY.

William Pepys

Moses Willetts

William Grainger

William Reeve

Benjamim Wrigglesworth

John Earles

Richard Bennett

Peter Milne

Richard Brooks

Joseph Nesbitt

John Simpson

William Hayes .

Counsel for the Crown.

Mr. FIELDING.

Counsel for the Prisoner.

Mr. SILVESTER

The Hon. Mr. ERSKINE.

Prisoner. My Lord, I only beg leave to speak one word at present; if these gentletlemen of the Jury are the same that were on the coroners inquest, they are the next neighbours to the place where that unhappy accident happened; and in that case I must beg that other gentlemen may be chosen in their places.

Court. That is a very natural objection, if you wish to object to any of them you may.

Prisoner. My Lord I am not acquainted with any of the gentlemen.

Mr. Reynolds. They are not in that ward.

Mr. Fielding.

May it please your Lordship, and you gentlemen of the Jury; you have collected from this indictment that the crime imputed to the unhappy gentleman at the bar, is that of wilful murder; I call him an unhappy gentleman, because if guilty of the crime of murder, he must feel all the torture of remorse, and if innocent, we shall feel for him on account of the wretched situation in which he now stands, being accused as the perpetrator of such a crime! I need say little to you on the crime itself; I am sure I shall not say a syllable to you to excite your indignation on the occasion, for you must necessarily feel that indignation but too much rush on your minds, while you see a man before you supposed to be guilty of the crime of murder; of the unhappy gentleman himself, I can say nothing, I know him not, nor have I heard much of his character, I will take it to have been as amiable and as respectable as ever character was; but if it be so, the circumstance of character cannot alter the nature of the crime which you are now to attend to: I am sure you will attend to it with all the patience, and with all the temper necessary; and let me beseech you to divest your minds of those prejudices which are but too common; let me beseech you to divest your minds if possible, of every prejudice. Unnecessary as it is for me to say much of the law as to the crime of murder, I shall only take the liberty of suggesting to you, what I conceive will serve as the only kind of excuse or apology, for a man that is accused of the death of another: The only justification, excuse, or apology, that can arise, is, that the death must happen either from accident, from misfortune, from opposition to violence, from the execution of the law, or from a greater or less degree of insanity or perturbation of the mind: it is not necessary here for me to speak either of accident

or misfortune: it may be necessary for you to advert to the degree of perturbation of mind which has accompanied this business: if death is occasioned to another, and that happens from a natural and sudden impulse of the mind, and the irritation in consequence of that sudden impulse, there the humanity of the law says, that the crime although it be heinous, shall not be murder, but manslaughter; but if there be a pre-existing malice before this impulse takes place, it will differ the degree of guilt; if before the stroke takes place, there has appeared a continuance of a mischievous inclination, although that inclination has not gone so far as to seek the death of another, that mischievous inclination will constitute a high degree of guilt, and may at last be determined murder. These circumstances therefore, you will bear in your minds, as they will apply to the evidence that will be laid before you. The story I shall lay before you in evidence will be short. The unhappy gentleman at the bar, lodged for about two months or a little more, with Mr. John Hardy in Newgate-street , during the time of his residence there, there had been objections, and those objections had grown to some height, so as to make some ill will between Mr. Hardy and the gentleman at the bar; and Mr. Hardy told him, he should be glad he would quit his lodgings: I suppose he agreed to quit his lodgings. On the day this unfortunate accident happened, Mr. Hardy with his wife and a maid servant were at tea in a little apartment below, over which was a sky-light: as they were sitting at tea, there came upon that skylight a quantity of water, they immediately concluded this must have come from the window of the lodgings of the prisoner; Mr. Hardy I will suppose, (as it is but fair to suppose) arose with some irritation at this, he took the candle and went up stairs; he left the parlour door open, and words were heard between him and the prisoner; but however Mr. Hardy having perhaps been in some squabble, so far as words constitute a squabble, was returning down stairs, and had got down to the foot of the stairs so as to reach the landing place of the stairs, when the prisoner at the bar called out to him, that he was a thief, and made use of terms of that sort; upon which Mr. Hardy turned round and said, do you say so, I will make you prove it, I will take you before a justice of peace to morrow; these were all the words that ever Mr. Hardy was heard to utter: soon after this it was that the candlestick he held in his hand was heard to fall on the floor, and he himself soon fell afterwards, and never spoke another word. There cannot be a doubt therefore when I tell you, that when the maid and another person went up stairs, and found this poor man bleeding, and the blood gushing from his breast; I say there can be no doubt but this poor man was in that instance certainly murdered or killed: I beg pardon for being so forward in using the word murder, but there cannot be a doubt but he was certainly killed; they were of course busy about the dying man: soon after the prisoner got into his chamber, opened his window, and called out murder! one of the people endeavoured to hurry the wife away, seeing there were no hopes of Mr. Hardy's recovery: a constable was sent for; they rushed into the prisoner's chamber, there they found the prisoner at the bar; they found him with his hands bloody, and with the instrument that had been the occasion of death, in his pocket. These are all the facts that will be laid before you, it will be your duty to deliberate on these facts; if the result of your minds is, that the prisoner has been guilty of this, with intention of slaying the person so deceased, you will find him so; but you will for the honour of human nature, suppose all that can be supposed; and consequently, if you can, truly and honestly upon consideration of the circumstances, reduce this to the inferior crime of manslaughter; I am sure every body will be satisfied with your verdict; you will hear the evidence, and after you have deliberated on the facts which will be proved to you, you will give your

verdict; I for my part shall be perfectly satisfied, and I am sure every body will be so also, with what ever shall be the result of your deliberation.

Evidence for the Crown.

MARY DECROW sworn. Examined by Mr. Fielding.

Court. I wish the two maid servants that are to be the principal witnesses, may be examined apart.

Mr. Fielding. You were a servant to Mr. Hardy? - Yes.

On the 28th of December, where was you in the evening? - I was at home in the parlour, sitting at my tea.

Who was in the parlour with you? - My master and mistress fitting at tea.

What time in the evening was it? - About half past five.

Court. Do you call him Dr. Macginniss, or Mr. Macginniss? - I call him Mr. Macginniss.

He came home then? - Yes, I arose from my tea, and took a candle in my hand and lighted him up stairs; I lighted his candle, and brought down the tea things which he had had in the morning.

Where did he lodge? - He lodged up two pair of stairs.

Forwards or backwards? - In the back room.

Court. You was the maid servant of the house? - Yes.

It was your business to attend on the lodgers as well as your master and mistress? - Yes.

Mr. Fielding. Did any thing more pass between you and Mr. Macginniss when you went up stairs? - No Sir, I did not speak a word to him.

Did he speak any thing to you? - Not a word, I brought down the things and went into the parlour, I came down stairs into the parlour and was just about to sit down to my tea, when Mr. Macginnis opened his window and threw some water on the skylight.

Could you hear the window open? - I did.

How near is the sky-light? - It comes higher than the cieling; it is gabelled like the top of a house, one part is strait, and the other is a-slant upon it; it is the only light that comes into the room.

Court. It was the sky-light of the parlour? - Yes Sir, it was.

Mr. Fielding. The parlour I suppose is a little kind of room that has been taken out of the yard? - I believe it has been taken out of the yard; but it is not a little room, it is large; it is in the back part of the house, even with the shop.

Then you heard some water come on the sky-light? - My master immediately arose from his tea, and took a candle in his hand and went up stairs.

Be as recollecting as you can, and tell us what your master said when he arose up from his tea and took up the candle? - He said he would go up stairs and reprove him for throwing the water on the skylight.

Court. Did any of the water come into the parlour? - No Sir.

The glass was not broke? - I do not know that it was.

Court. Did your master appear to be angry? - There was no particular anger appeared in his countenance; he went up stairs and knocked at the door, at which, there might be about a dozen words pass between Mr. Macginniss and my master.

Mr. Fielding. Do you know whether the door was opened or not when he knocked at the door? - Yes Sir, Mr. Macginniss opened it.

Could you hear what those words were? - They were loud, but not loud enough to distinguish them plainly.

How long did they continue there? - There might be about a dozen words pass on each side, I do not think there were more.

When there was an end of the words between them, what passed? - My master

then came down stairs, he had got down one pair of stairs, and half way down the other that come to the shop.

How many stairs are there, that form a pair of stairs? - I cannot say that I ever numbered them, but he was down as well as I can recollect the quantity, about half the lower pair, so that he was in my sight, my master was in my sight as I stood at the parlour door: at the time when my master went up stairs, I immediately came to the parlour door, and stood at the door which was open, my mistress and I were both together and Adey Lancashire; then Mr. Macginniss called down after my master, and said twice, you are a thief, you have robbed me.

At the time Mr. Macginniss said these words, had he come down any of the stairs from his room? - No Sir, I do not think he had, his voice appeared to be on the landing place.

What did your master do then? - My master hearing him say those words, said, do you say so, I will make you prove it, I will have you before a justice of peace tomorrow; and in the saying of those words, my master returned up stairs again.

How high did he go? - He did not appear to get to the top of the second pair of stairs.

Court. You standing at the parlour door could not see how high he went? - No, but I could hear his foot-step, and he appeared to be near the top, but not quite at the top when I heard the candlestick fall out of his hand.

Did you hear any thing more, was there any words that you heard? - No, I never heard my master speak another word.

Did Mr. Macginniss speak? - No.

What did you do then? - Adey Lancashire run up stairs, I followed her immediately, and my master was laying with his head and part of his body on the kitchen floor, and his legs were on the landing, he fell in the door-way, he laid there when I came up.

Court. Where is the kitchen? - It is up one pair of stairs, I went to my master, and I asked him what was the matter? but he did not speak, I reared him up on my left arm, and he gave a very low groan, and his breath seemed to catch, I thought may be he was in a fit; at which time my mistress then was come up stairs, for she had the presence of mind to go back to get a candle, because she thought as the candle had fell, there was no light, but there happened to be a light in the kitchen on the dresser.

Then your mistress had a candle in her hand, when she came to the top? - Yes.

Then you could see the situation? - I could see before she came, by the light in the kitchen; when my mistress came up she bid me get away and let her come, and Adey Lancashire said to my mistress, Madam he bleeds, and my mistress immediately unbuttoned his waistcoat, and opened his shirt, and there she saw the blood flowed very much, and she took off her apron in order to suck it up, that she might see what was the matter.

Did you make any observation at the same time? - I saw the blood flow very much, it came just under his left breast, there was a wound.

Did your master appear to have any remains of life at that time. - No, Sir, he never appeared to move after, and he closed his eyes while my mistress had him on her arm.

Did you see anything of Mr. Macginniss during this? - No, Sir, I did not see him.

Did he come to your assistance? - No, he did not, and I did not tell you in the time that I had my master on my left arm, I heard Mr. Macginniss crying out of his window, murder! there is a man murdered, my mistress when she saw my master in that condition, bid me go and fetch a doctor, and I went and fetched one Mr. Jackson, he lives a little above us in Newgate street, I do not know any more of the particulars, I was not up stairs.

 

Cross-examined by Mr. SILVESTER.

Then you and your master and mistress were drinking tea together? - Yes.

Nothing had passed from Doctor Macginniss to your master at that time? - No, Sir, nothing.

When your master went up stairs, I think you say, you was standing below at the parlour door, with your mistress and Adey Lancashire? - Yes.

Lancashire was nearer the stairs than you? - Yes.

She went up first, you know? - Yes.

Now the particular words that passed you do not know? - No.

Was it the knocking at the door that prevented your hearing of it? - No, Sir, not the knocking at the door, because there was no words till the door was opened.

You do not know who opened the door? - I suppose Mr. Macginniss opened it.

You heard the words but not to distinguish any particulars? - No, I could not distinguish the particular words.

Nor you did not go up stairs at all? - Not till the candlestick fell.

Lancashire was at that time standing nearer the stairs then you? - Yes.

She ran up stairs before you? - She ran up-stairs before me.

Court. How far was the candlestick from the body of the deceased where he lay? - I did not see the candlestick, nor pick it up, I heard it fall, but I did not see it.

Court. Did you see any mark of tallow on the stairs where the candlestick fell? - No, I do not remember seeing any tallow on the stairs.

Court. How long might it be between the time that your master ran up stairs, and the time when you heard the fall of the candlestick? - It appeared in a moment of time that he returned.

How many steps was it from the top of the second staircase to the place by the kitchen where you found your master lying? - I do not know how many steps particularly.

Mr. Fielding. Can you give any guess, thirty or twenty? - There may be about fifteen.

Were those fifteen steps straight down, or was there any turning? - They turned, all the stair-cases turn, but it is geometry, because you can see from the top of the house to the bottom.

Is there a kind of broader stair or landing half way? - No, Sir, all the same size.

But it goes in a curve? - Yes.

ADEY LANCASHIRE sworn, examined by Mr. Fielding.

You are a servant to Mrs. Goldney who lodged in Mr. Hardy's house? - I am.

Between five and six in the evening, on the 28th of December, where was you? - I was sent out of an errand, when I returned I saw Mrs. Hardy and the last witness standing at the parlour door.

What happened then? - I heard a noise up stairs, and I asked what was the matter.

What kind of noise was it, and where did it come from? - From up stairs.

Did you hear any words? - There was a sort of scolding.

But could you distinguish any words? - No.

What answer was given you when you asked what the noise was? - That it was some words passed between Mr. Hardy and the lodger about some water that was thrown out of his window, I heard Mr. Hardy return down some of the stairs.

Did he come into your sight? - No, he did not, I heard a little noise up stairs, and heard some thing roll down stairs, when I heard the noise I ran up stairs.

Did you go up stairs before the last witness Mary Decrow ? - Yes?

How high did you go? - One pair of stairs.

Court. Do you remember the words you made use of before the coroner? - Yes.

Court. You said there was not a little noise, but a bustle; do you recollect whether it was a bustle or a little noise? - Very likely I said it was a bustle.

 

What did you mean by bustling, was it like people fighting or struggling, or any thing of that sort? - It was as if there was a struggling, it was like a struggling.

Mr. Fielding. You went up one pair of stairs? - Yes.

What was the first thing you saw then? - I saw Mr. Hardy laying with his head against the kitchen door, I put my two hands under his arm, and he catched hold of me by the bone of my stays.

Did he say any thing? - I said, Mr. Hardy, what is the matter; he made no answer; but he gave me a shake, and threw me down.

Did Mr. Hardy say any thing after this? - Not a word.

How long was it before Mrs. Hardy came up? - It was not long.

She brought a light with her? - She did.

Did you see her when she examined the wound? - Yes? She opened his waistcoat and tore down his shirt, and she saw the blood, and she pulled off her apron, and threw on the top of it.

Did you see the wound? - Yes.

What became of Mr. Macginniss during this? - He was in his room.

Was his door shut or open? - I do not know.

Did he say any thing? - I heard him cry murder.

Out of which window? - I do not know.

Is there more than one window? - Yes.

Did you go for assistance? - I was there all the time.

Did you take any examination of the stairs where the candle or candlestick was? - No.

Was there any thing on the stairs? - There was blood on the stairs.

How high? - A few stairs higher than the landing-place of the kitchen.

How high? - I do not know, only that there was blood.

Cross-examined by Mr. ERSKINE.

When you came home my girl from the errand that you was sent on; Mr. Hardy was up stairs? - Yes.

On hearing the noise, you enquired what it was? - Yes.

You never saw him till he came down stairs? - No.

You was higher than the other girl? - Yes.

He never came down far enough for you to see him? - No.

Court. Can you tell how high up the stairs Mr. Hardy went? - I really do not know.

Was not you nearer the bottom of the stairs than the last witness? - Yes I was, but I cannot tell how high Mr. Hardy went up the second staircase.

Now when Mr. Macginniss called out of the window, did he not call out for assistance, and say, that the deceased was murdering him? - I understood it as such.

Because you have now given it different to the jury, but before the coroner you said that Mr. Macginniss was calling out of the window for assistance, and that Mr. Hardy was murdering him? - I understood it so.

Court to Jury. If there had been any violence used towards him before, he might have cried out for assistance; but the two witnesses differ very much in their account of the crying out; for the other witness says Mr. Macginniss called out murder; there is a man murdered.

Court to the Prisoner. Prisoner at the bar, if there is any questions omitted that you think proper to have your council ask, write them down and send them over.

Mr. Fielding to Lancashire. Did you hear distinctly what it was he cried out of his room? - I heard murder, and I understood that it was Mr. Hardy was murdering him.

Court to the Jury. If the candlestick fell on the top of the kitchen stairs, that will shew there was a scuffle; there can be no doubt but this wound was the occasion of Mr. Hardy's death.

Court. I apprehend the Prisoner is writing

down some question for his councel to put to the witness, are not you, prisoner? - I am my Lord.

Court. Then do not you put the question yourself, but hand it to your councel. (the question handed to the councel from the Prisoner.)

Whether the maid should not have emptied my chamber pot?

Court. To be sure she should, but you see she was idle, and had not taken away his breakfast things; so that so far it shews, he did not throw it out wantonly, or to annoy Mr. Hardy.

Court to Decrow. You was the maid that was to attend Mr. Macginniss? - Yes.

You had not taken down his breakfast things? - I could not take them away, nor yet make his bed, for he took away his key.

Mr. Silvester. You might have taken away his chamber pot when you took away his tea things? - No I could not, I had the candle in my hand, and might have broke something; he never required me to do it.

THOMAS OLIVE , a Surgeon sworn, examined by Mr. Fielding.

I believe, Sir, you went to examine this man? - I did.

Please to inform my Lord and the jury, what you observed? - When I came to Mr. Hardy's I was directed towards the kitchen, I found him laying with his body in the kitchen, and his lower extremities in the passage on the landing place, I was then shewn a wound on his left side very near to the breast, I introduced my probe, which penetrated into the cavity of the thorax some inches, and as he had no life in him, I was convinced that that wound was the cause of his death; I only passed in the point some inches; but on the day of the coroner's inquest I opened the body; I will describe the parts that were wounded. The instrument passed through the common integuments, pectoral and intercostal muscles between the fifth and sixth ribs, close to the end of the sixth rib dividing part of the Cartillage that connects the sixth rib to the Sternum, and through the Pericardium into the right Ventricle of the heart, of which wound he died.

Court. You are sure it was the cause of his death? - Yes.

Did you see Mr. Macginniss? - I saw him brought down stairs; he looked at the body, I believe he said he was the most wretched of all beings, or a most miserable wretch, or something of that sort, he seemed very much affected: I enquired how the accident happened.

Was this said in the presence of Mr. Magginniss? - No.

Then you must not mention it: was any enquiry made about it in the presence of Mr. Macginniss? - None at all.

JOHN PROCTOR sworn, examined by Mr. Fielding.

I think you live in Warwick-lane; you was at this house when this affair happened? - On Saturday the 28th of December, about six in the evening, one Mr. White came and desired me to go to Mr. Hardy's that there was a cry of murder, and he believed murder was committed; I went as fast as I could go, when I came there I went up one pair of stairs, there I saw Mr. Hardy lay with the greatest part of his body and his head in the kitchen, and his legs on the landing place; his shirt was all open and some blood about it; Mr. Jackson was holding his head, and said he wanted a surgeon; I said I thought the gentleman was dead, though his lips quivered at that time; after this I enquired how this gentleman came by this unhappy accident, they told me by a lodger that lodged up stairs: several people pressed me to go up to secure him: having no officer with me, and having nothing to defend myself, I objected to it; presently one Mr. Thompson an officer, came in, and a stranger; we then got a hanger a-piece, and up stairs we went; I desired the maid to go and shew me the door, the woman shewed me the door, a strange man kicked against the door, and told Mr. Macginniss to open the door; Mr. Macginniss asked if there was an officer there, I

told him there was, he then said he would open the door and surrender himself; he then opened the door, and I immediately took hold of him by the left collar with my right hand, and asked him if he had any weapon about him, he said he had a knife in his pocket which he would give me; I desired the other two men to lay hold of each of his hands; and I thought it most prudent to take the knife out of his pocket, I took it out of his right hand coat pocket; the knife was in a sheath, as I now produce it in court; it was in the sheath in his pocket.

Did you observe any thing about him particular? - About him Sir.

Court. About his hands or any thing of that sort? - That will come afterwards my Lord. I then took him down the two pair of stairs, and I thought it was prudent to let him see the poor man that lay there; I took him into the kitchen, and desired him to look at the poor man that lay there? the wound was then exposed, and some blood about it; I mentioned it to him the second time to look at the man, he then said he was an unhappy man; I then my Lord brought him down into the shop; there was a great number of people about the door; I thought it was hazardous to take him away without a coach; I ordered some people to fetch a coach; in the mean time I looked at his hands, and I observed both his hands from the knuckle to the fingers ends covered with blood; there was not a free place in both his hands; I then put him in the coach, and going from there to the Compter, there was some conversation passed about the affair, but what it was I cannot say, there was such a noise with the people running after the coach, and wanting to stop the coach; he said in the coach, that he hoped the Lord Almighty would give him time to repent, or something to that purpose.

Court. To repent, for what? - He did not say for what, but that he hoped the Lord Almighty would give him time to repent; after I put him in the Compter, I came home, but I thought it proper to go back to examine his handkerchief: the knife appeared to have been wiped, it was all stained with blood, all over in the shoulder of the instrument it was very bloody; but it has been so handled, that it does not appear now in the light it did then: he was in the tap room of the lodge, I desired him to walk into another room, which is on the right hand of the Compter; and I asked him for his handkerchief; he had tied it round his fetter that he had on his leg to hold it up with; I took it off his fetter and looked at it, but it was a red bird eye handkerchief, and I could not perceive any blood on it; I asked if he had not washed his hands, he said no, but the keeper said he had: he then said Mr. Hardy had struck him several times on his breast; I unbuttoned his waistcoat, and opened his shirt, and looked all over his breast very particularly, and I told him then, I could not perceive the least mark on his skin, or any thing like it; he then told me my Lord, that his flesh was of such a nature, that if it was to be beat in, it would not leave any mark: I told him his flesh was very odd flesh, and that was all that passed. On the Sunday morning when I went to Mr. Hardy's house to look what things the prisoner had there; I perceived a great quantity of blood on the upper stair of the two pair of stairs, and the round nob that is on the right hand of the stair case was intirely covered with blood; and a candle lay trod upon, upon the upper stair before you go on the landing place.

THOMAS STEPHENSON sworn, examined by Mr. Fielding.

Do you know the unhappy gentleman at the bar? - Yes, Sir.

Where did you see him? - Soon after he had done the murder: when I first saw him, it was out of my neighbour's window, next door to me, he had got his two hands in the window, resting on them; the sash was up to the top.

How far distant were the windows? - About the distance I am from you, or thereabout:

when he first saw me, he said for God's sake fetch a peace officer and I will surrender myself up; says I to him, why do not you open the door and surrender your self to the gentlemen at the door, he said, if I open the door they will shoot me, for they have got fire arms, but if you will get a peace officer I will surrender myself up directly; says he, I cannot throw a little drop of water out of the window but there is always this disturbance: that is all that passed between him and me.

Did you hear any cry of murder? - No, I did not.

Cross-examined by Mr. ERSKINE.

Then this was some time after the affair happened? - Yes.

How long was it? - I cannot tell.

Half an hour? - I cannot tell, I went out the minute I heard of it; my maid told me of it.

- THOMPSON sworn, examined by Mr. Fielding.

You was in the house of Mr. Hardy? - Yes Sir.

Did you go in with Proctor? - I went in after him.

Did you stay with him all the time there? - Yes, to the securing the prisoner, we took him out together.

Was you ever alone with the prisoner that time? - No, we were together, one had hold of one side of his collar, and the other, on the other.

Did you take him in the room? - No, at the room door, he c ame out to us at the door.

What passed between Mr. Macginniss and you? - When we brought him down stairs, while Proctor was busy calling for a coach, he said, oh Lord! and is he dead! I made answer I thought he was.

What did he say to that? - He said he wished he had made off, or gone off, I cannot say which it was, either made off, or gone off.

Did any thing else pass between you and Mr. Macginniss? - Nothing more than that he said, that Mr. Hardy beat him, threw him on his back, and dragged him by the hair of his head to the stair-head, and he thought he was in danger of Mr. Hardy's throwing him down stairs; I examined his hair, and I did not perceive his hair was particularly rough, any more than a common day's wear would make hair.

Cross-examined by Mr. SILVESTER.

Did you examine his tail too? - Yes, I did not perceive any thing, I did not particularly examine it, he had his hat on.

Whether he had had his hair pulled behind where it was tied, you could not tell I believe? - Yes I could as well as any body in the business.

Prisoner. My Lord, in the confusion I now am before this awful tribunal, I am much less able to speak than I should be at any other time; and the gentlemen that know me, know that I cannot speak well at any time: therefore I humbly beg you will indulge me to read a little sketch which I wrote in prison concerning my defence, and concerning the matter undisguised as it was: I will esteem it a very great favour.

Court. By all means you may make use of your papers.

Dr. Macginniss then began to read his defence, but was stopped by the court.

Court. Let your counsel see your defence before you read it, you do not know what is so proper to read as they do: let them read it first.

The weapon was handed to the Jury, which was a pistol bayonet with a hollow iron handle, the blade four inches and a quarter long.

Court to Jury. This is the prisoner's defence, which the court have given the officer leave to read to you, thinking you will hear it better from him than from the prisoner.

 

Mr. Reynolds then read the Prisoners Defence as follows.

My Lord and Gentlemen of the Jury.

I never could speak in my life, much less on this awful occasion; therefore I humbly beg leave of the court to be permitted to read this rude sketch of my defence, composed in prison: I am an old man upwards of sixty, my whole life has been spent in doing all the good offices in my power to mankind, in sickness and distress; and I should have been happy if my circumstances had enabled me to preserve more of the lives of my fellow creatures: until this unhappy affair my reputation for humanity remained unquestioned with all the world; my integrity as a man was never doubted; my greatest enemies can give me no other character, than that of an inoffensive man, and the gentlemen who have promised to appear here, will vouch that in this I speak truth; they have known me long: I never before had a word in anger with Mr. Hardy, I had no malice against him, there was no coolness between us; the maid not emptying my chamber pot obliging me to throw it out myself provoked Mr. Hardy, upon some of the urine falling it is said upon the sky-light below, to run up stairs to my room: he vented a great deal of abuse against me; I told him the offence he had taken against me was owing to the neglect of his servant, and not to any intention on my part: the violence of his passion continued, and calling me many opprobious names, he swore I should not sleep another night under his roof; I grew offended at his reproaches, and retorted upon him; he however retired a few steps down stairs as if going away, but angry words still passing between us he returned with redoubled passion, and forcing open the door of my room, which I endeavoured to shut against him, he knocked me down, and dragging me out of my room, he attempted to throw me headlong down stairs; I thinking my life in danger had recourse to the unhappy weapon which I used for common purposes since August last: I call God to witness this is strict truth: I owed him a mere trifle for rent, he could have no pretence to fall out with me for that. My circumstances never were affluent, but of late I have had assurances from those in power to be preferred to the rank of physician to the army, in an expedition that was then in contemplation, to be sent out under General Dalling , who was always my friend. Had I been a man of intemperate violence, or suspicious character, I should never have received the countenance of the many Gentlemen of character, who have through life stood my friends. At my time of life nothing but the greatest violence and fear of my safety could induce me to proceed to such extremity; it may be seen I am weak and infirm; while I live I shall lament the fatal occasion with the deepest sorrow; I throw myself on the candor and wisdom of the Court and Jury, on a firm persuasion, that whatever prejudices have gone out abroad against me yet Justice will prevail here: And God's will be done!

The Prisoner then added extempore.

Gentlemen, If you please to remark that Mr. Hardy came up offended against me, he came into my room, I did not go into his: that he abused me and dragged me -

Court. That your defence has said.

Evidence for Dr. Macginniss.

WILLIAM CURTIS sworn, examined by Mr. Silvester.

Where do you live, Sir? - I live at No. 14, Ivey-lane, Newgate-street.

Was you present when this unfortunate accident happened? - I was at work in the shop; as the flatting mills make a noise, I did not hear the prisoner cry out murder, till some people assembled about my door, I was called down accordingly, they said there was a cry of murder, I heard the cry of murder.

 

Who cryed out murder? - I saw the person afterwards when he was taken, Mr. Macginnis.

What did he say besides? - He cry'd out murder several times, and once he said, for God's sake come to my assistance, but many times murder, murder, I only observed him once say, come to my assistance; I went down immediately, and told the people that were about the door, which were about fifty, where it was, that it was at No. 31, Newgate-street.

DANIEL SHEEN sworn, examined by Mr. Erskine.

Do you know the prisoner? - I do.

How long have you known him? - For twelve years and upwards.

What are you, Mr. Sheen? - A West India Merchant.

Have you known him intimately? - I cannot say very intimately in this country, in Jamaica I knew him.

Has he ever since spoke to you of this Mr. Hardy at all? - Two or three times.

On what occasion? - I asked him where he lodged when I first saw him, he said at one Mr. Hardy's in Newgate-street, a hatter and hosier , a very honest industrious man, very deserving of encouragement in the line of his business.

Did he make any application to you to encourage him? - He did, Sir, knowing that I purchased articles of that sort frequently, to ship to the West Indies, he requested of me to make trial of Mr. Hardy, that he was sure he would use me well.

Did he make this application more than once? - He told me that he was a very ingenious man, and had obtained a patent for making hats and hosiery, I do not know which, but did not meet with the encouragement he deserved; that application he made more than once or twice, I believe three times.

Did he always speak of him with good will? - Yes, I did not understand that there was the least misunderstanding between them, on the contrary I had a right to judge, that there was good will between them.

The Rt. Hon. Lord BARRINGTON sworn, examined by Mr. Silvester.

Will your Lordship be so good to inform the Court and Jury how long you have known Mr. Macginnis? - I have known him many years.

What has been his general character, my Lord? - He has always seemed to me to be a very honest, worthy, innocent man, harmless to the last degree; I have heard him sometimes complain of not having been used kindly by his superiors, where he was employed, but he always complained with the greatest temper, and without the least appearance of animosity whatever; I always thought him a most harmless, innocent man, and my Lord Desborough, who knows a great deal more of him than me, always had the same opinion of him, and if he was in England, I dare say, he would be glad to appear for him.

The Rt. Hon. the Earl of EFFINGHAM sworn, examined by Mr. Erskine.

I believe your Lordship knows Mr. Macginniss? - I do.

How long has your Lordship known him? - I have known him for some years, between six and seven years, what I have known of him has chiefly been from a variety of conversations that I have had with him, mostly on subjects upon which he had wrote tracts, and on the duties of his particular profession in the army, which he has talked to me of, and also about the situation he has been in; and he always appeared to me to be a man that had most remarkably considered the rights of humanity, which seemed mostly to engage his attention; it always struck me that he had the good of mankind much at heart, and individuals in particular: I think it impossible that such a man could have been guilty of any one act of malice whatever.

Is that the character your Lordship always heard of him? - I never heard any

body speak of him in any other light whatever, I have heard several persons speak of him in the same light.

Major Gen. MURRAY sworn, examined by Mr. Silvester.

General Murray, be so good as to inform the Court and Jury how long you have known Mr. Macginniss. - I have known him ever since the year 1777, in 1777 I went to North America, at that time Major Fergusson was there; and he told me, he had known Dr. Macginniss about ten years, that he was a man of great humanity, a physician , and that he was a very inoffensive man; he likewise informed me of several instances of his humanity, that he had at different times, while he had the care of sick men, divested himself of fresh provisions and given to those sick men, that he had likewise at times laid on the boards to give his bed to the sick men; Mr. Macginniss had the charge of a number of different regiments, and I had opportunities to see the great attention and humanity that he shewed, I could not have supposed from the knowledge I had of him, that he would have been guilty of a crime of the kind with which he is charged. Major Fergusson was killed about three years ago. Mr. Macginnis is a very humane inoffensive man, I have known him since that time, I had a memorial drawn up for him, a number of people thought so favourably of him.

EDMUND BURKE , Esq; sworn, examined by Mr. Erskine.

How long, Sir, have you known Mr. Macginnis? - I have known him several years.

What is his general character? - He was recommended to me originally as a man very knowing in his profession, very innocent, and rather helpless and unable to forward his own interest: as far as I have had an opportunity of knowing him, and I have known persons that knew much more of him than I could, I have heard that his knowledge is very extensive, I have always heard from every body that knew him, that he was a man of remarkable good nature, and it interested me so much in his favour, that I endeavoured to serve him in several little pursuits that he had, in which I thought he had very ill fortune to say no worse of it: from that opinion of him, I confess I feel much in seeing him in this situation.

Major Gen. FLEMING sworn, examined by Mr. Silvester.

Major Fleming , how long have you known Mr. Macginness? - I have known him seventeen years.

What has been his general character for good nature and humanity during that time? - Very singular! I have had some very particular opportunities of knowing of his humanity; about nine months ago I was upon the Dublin duty in Ireland, the doctor then resided in Dublin, I had occasion to call him in to see a very poor person who was very much distressed, not only from disease, but from wretchedness of circumstances; indeed I had the surgeon of the regiment to visit those poor people before; but to say the truth, I called in doctor Macginniss, more to have an opportunity of an excuse for giving him some little matter, than the necessity of physical advice, for I know, that from his delicacy, he would not have been prevailed upon to have accepted any thing otherwise: I called him in, and in the course of a few days I found he had not only given strict attendance, but that much the greater part of his fee was given back to these poor people, to the very wretches whom he attended, given to buy wine and rice and sago, and other things that they wanted; this I mention as one instance of his humanity, and I can give further instances, if necessary. Some time afterwards from the distresses of his circumstances, he had occasion to borrow a few guineas of me, he came to pay me them a little time afterwards; I declined taking them, and told

him I had not considered of it; for I never intended to ask him for them; but the doctor insisted on returning them before he left Dublin, and I took them on a promise of returning them to him whenever it should be necessary: Instead of which, he left Ireland without my knowledge, and I never heard of him till I heard he was in this unhappy situation. I think he has had in his conduct, through life, the simplicity of an infant, with more benevolence and humanity and philanthropy than any man I ever knew.

Alderman SAWBRIDGE sworn, examined by Mr. Erskine.

How long have you known Mr. Macginnis? - I have known him many years.

What experience have you had of his temper and disposition? - He used very frequently to come to my house, he was an author, and used to wish me to see what he was about to publish: I thought him particularly harmless and inoffensive, so far from malice in his disposition, I thought him possessed of universal benevolence; I have not heard the evidence that has been given against him to day; but I should imagine such an act as this must have been occasioned either by violence, apprehension, or from great irritation, if it proceeded from malice, the nature of the man must be changed since I saw him last.

Governor NUGENT sworn, examined by Mr. Silvester.

How long have you known Mr. Macginniss? - I have known him four or five years.

What character had you of him? - The character I had of him was, that he was humane and intelligent in his profession.

Court to the Jury. Gentlemen, would you wish to hear any more, as to Mr. Maginniss' character? - Mr. Erskine, my Lord I have agreat number more of respectable names.

Court. After such a character from such witnesses, if you was to call all the men in the kingdom, they could not make any additon.

Mr. Justice Willes. Gentlemen the Jury, it falls to my lot to state to you this case Daniel Macginnis , otherwise Macgenise, stands indicted, for that he on the 28th of December last, with a bayonet made an assault on one John Hardy , and struck and stabbed him below the left breast; - he is to tried by you on the coroner's inquisition: and as the evidence is pretty long, it may be proper to state before I sum it up what I take to be the law on this subject; and if I am not correct, I shall be assisted by my learned colleagues: I take the law to be clearly this, and I chuse rather to state it from the words of a learned author, than my own interpretation, Mr. Justice Foster, in his Treatise on Manslaughter, Fol. 290. Sect. 1. Chap. 5, says,

"Words of reproach how grievous

"soever, are not a provocation sufficient

"to free the party killing from

"the guilt of murder; nor are indecent

"provoking actions or gestures expressive

"of contempt or reproach, without

"any assault on the person: - This rule

"will I conceive govern every case where

"the party killing upon such provocation

"maketh use of a deadly weapon, or

"otherwise manifesteth an intention to

"kill, or to do some great bodily harm."

From this authority, I tell you, that no words whatever would justify the Prisoner's making use of such a weapon as has been made of on this occasion, without some blow or assault on the person; but, if blows are given, if any struggle arises, or any personal violence issued between the parties during that struggle, the party is so far excused in making use of a deadly weapon, that it shall turn the crime of murder into the inferior crime of manslaughter: This was clearly the sense of the legislature at the time the stature of stabbing (1st of James the first) was passed, the words are,

"If any person shall stab or thrust

"any person or persons that have not then

" any weapon drawn, or that having not

"first struck the party who shall so stab or

"thrust, so that the person or persons so

"stabbed or thrusted shall thereof die

"within the space of six months then next

"following, although it cannot be proved,

"that the same was done of malice

"aforethought, yet the party so offending,

"and being thereof convicted, shall be

"excluded from benefit of clergy."

So that the Legislature understood, that where the party stabbed had then a weapon drawn, or had first struck the party stabbing, there though a deadly instrument was made use of by the party killing, it should be manslaughter, and should not be excluded the benefit of clergy. And Gentlemen, there is a case which happened lately within my own experience, which if you should be of opinion, that there was any struggling between the parties will be nearly similar to the present. It was a case that came before me, but I do not mean to make use of my own authority, it had the opinion of the twelve Judges in confirmation. It was the case of a William Snow , tried at Northampton for the wilful murder of one Thomas Palmer , by stabbing him with an awl, of which wound he died. The facts were these: there were two labourers in the town of Northampton, they had been making merry together in the evening, and they had had some difference, they had challenged one another to fight, and were prevented; afterwards Snow went home to his house in the village, two hundred yards off; he was a shoe-maker by trade, he took his shoemakers bench, and an awl, and a woman's shoe, and being summer time he sat at the door, it was necessary for the deceased to come that way; a fresh squabble arose, they had a struggle, they were both down together in the road, the Prisoner was undermost, and in that situation he took the cobler's awl which he had in his hand, and struck three desperate wounds into the deceased. I thought in point of law, that though the wounds were given with a mortal and deadly instrument, and with a great deal of bitterness, (for the awl was as deadly an instrument as this, because of its sharpness,) yet I thought it my duty before a full audience to direct the Jury, that the crime, for the reasons I have given you, was not murder, but manslaughter, the Jury were rather possessed before, and thought proper to disregard my directions, and they brought him in guilty of murder: I took the opinion of the twelve Judges on the first day of Michaelmas term following, and the other Judges thought with me, that if there was a struggle preceding these three mortal wounds given by a deadly instrument, it converted the crime of murder into that of manslaughter; so that if you think in this case there was a previous struggle between the parties, you may find the prisoner guilty of manslaughter; and your attention in my stating the evidence to you, must be directed to see what colour there is for you to presume that this mortal blow was not given till there had been some struggle between the parties, you will point your attention to that particular circumstance, that there was some previous struggle between the parties, which occasioned the making use of this instrument. (Here his Lordship summoned up the evidence given both for the Crown and the prisoner, and then proceeded as follows:) Gentlemen this is the whole of the evidence, and you see whatever this quarrel was, it was not set on foot on the part of Mr. Macginnis, as Mr. Macginnis observed in his defence, he did not come down to Mr. Hardy, but Mr. Hardy went up to him: and there is an observation which I beg leave to make, the wit ness Proctor says, his hands were both bloody: Now if the wound had been given without any previous struggling, it does not strike me how the prisoner's hands could be both covered with blood. Another thing Gentlemen is that, when the candle was found, it was found squeezed down by his chamber door; and then as to character, to be sure, no man ever had a

better character for humanity, good nature, moderation, and every kind of virtue: You will also observe, that the witness Curtis confirms the evidence of Lancashire. As to the words heard from the prisoner's window, for he says, the prisoner called out murder several times, and once he heard him say, for God's sake come to my assistance, and the witness Lancashire says, as she understood it, he called for assistance, for that some person was murdering him: the other maid Decrow gives a different account of this, so that here are two witnesses against one: You will also observe, that in order to shew that there was not the least malice between the prisoner at the bar, and the deceased, they have produced Mr. Sheen, a West-India merchant, who proves the prisoner's recommendation of the deceased, and soliciting the witness several times to deal with the deceased in the way of his business.

In a doubtful case where there is great reason to presume that there was some struggle previous to the blow; a man's general disposition and his good character in general ought to have great weight with you: and it is impossible for any man to have a character more pointed to induce you to believe, that he is incapable of being guilty of the crime of wilful and deliberate murder. If therefore there was any struggle or violence before the giving this wound, though to be sure the conduct of the prisoner was extremely improper, and highly culpable, on this occasion; yet the law has not considered it as such an offence that should be punished with death.

Gentlemen, I have mentioned to you, that it appears there was some scuffle previous to this mortal blow: the second witness says

"it was something like a scuffle," the out-cry at the window was calling for some person to come to his assistance, for that he apprehended he should be murdered; that is proved by two witnesses in contradiction to one, and the circumstance relative to the candle and candlestick rests on that evidence that the candle was found close to Mr. Macginniss's door.

There was an observation made by the prisoner after his defence, which was very proper to be taken notice of, and that is, that he did not come down to insult Mr. Hardy, but Mr. Hardy twice went up to his door. Upon the whole of the case, therefore Gentlemen, if you think there is evidence before you, to presume that there was a struggle preceding the giving of this mortal blow with this deadly weapon, then the mercy of the law denominates that crime manslaughter, and not murder: on the other hand, if you think there was no struggle previous to the giving of this mortal blow, then to be sure no words, how grievous soever can justify the prisoner's making use of such a weapon as has been made use of on this occasion. One word more, in a doubtful case, character always has, and ought to have its due weight; you have heard the character of this man at the bar, it is impossible for any man to have a better; and, if after that, and considering the evidence that has been laid before you, and all the circumstances of the case, you should err on the innocent side of the question; I am sure your error will be pardonable.

The Jury withdrew about three quarters of an hour, and then returned with a verdict, finding the prisoner

GUILTY, Of the wilfull Murder .

The Clerk of the Arraigns then addressed the prisoner in the usual form.

Daniel Macginniss otherwise Macgenise, you stand convicted of the wilful murder of John Hardy ; what have you to say why this court should not give you judgment to die according to law?

Prisoner. All I have to say, is, that I was provoked, that I was truly innocent, that I was knocked down in my own room and my life in danger; that is all I have to say: let God's will be done; I am satisfied with the voice of providence; I did not bring it upon myself, I did not seek for it