Convicted of shooting Mr Bailey, June Sessions, 1743, and pardoned because he was wrongly identified
AT the sessions held at the Old Bailey in the month of May, 1743, Robert Fuller, of Harefield, in Middlesex, was indicted for shooting at Francis Bailey, with a gun loaded with powder and small stones, and demanding his money, with intent to rob him.
Mr Bailey deposed that, as he was returning from Uxbridge Market, he saw a man near Harefield sitting on a stile, having a gun in his hand; that he jumped off the stile, seized the horse's bridle, clapped the gun to Mr Bailey's body, and threatened to shoot him. Mr Bailey said: "That will do you no good, nor me neither." He then put his hand repeatedly into Bailey's pocket; but the latter would not submit to be robbed, and rode off. Immediately on which, Fuller shot at him, and wounded him in the right arm, so as to break the bone in splinters; and many stones, and bits of the bone, were afterwards taken out of the arm: nor did the prosecutor recover of the wound till after languishing nearly twenty weeks. The prisoner, however, had not an opportunity of robbing Mr Bailey, as his horse took fright and ran away at the report of the gun.
The substance of Mr Bailey's further deposition was, that this happened about seven o'clock in the evening, on the 24th of February; but that, as it was a clear starlight night, he had a full view of the prisoner, whom he had known before.
Bailey was now asked if he had ever been examined before any Justice of the Peace in relation to the fact; to which he answered in the negative. He was then asked if he had never charged the crime on any other person except the prisoner, which he steadily denied having done.
In contradiction to which, a commitment was produced, in which Thomas Bowry was charged with assaulting Francis Bailey, with an intent to rob, and this Bowry was continued in custody, on the affidavit of Mr Mellish, a surgeon, that Mr Bailey was so ill of the wounds he had received that he could not come to London without danger of his life, but Bowry was discharged at the jail delivery at the end of the sessions for June, 1743.
The copy of Bowry's commitment was now read, and authenticated by Richard Akerman, clerk of the papers to his father, and then keeper of Newgate.
On this contradictory evidence the characters of both parties were inquired into, when that of the prosecutor appeared to be very fair, that of the prisoner rather doubtful.
Upon considering the whole matter, the jury gave a verdict that he was guilty, but on account of the circumstance above mentioned, relating to the commitment of Bowry for the same offence, on Bailey's oath, they recommended the prisoner in the court as a proper object of the Royal clemency, and he was accordingly pardoned.
This affair is one ot that intricate nature, which must remain involved in mystery. It is impossible for us to say whether the prosecutor was, or was not, mistaken in the man against whom he swore; but we see that he had sworn the same fact, with equal positiveness, against Bowry: and this circumstance evinces the great propriety of the jury recommending the convict to mercy, where there is even but a bare probability remaining of his innocence. In doubtful cases we should always incline to the side of mercy; and it ought to be remembered, to the credit of the court at the Old Bailey, that this rule is constantly attended to; and it is a known fact, that persons charged with capital offences have been frequently heard to declare, that they would rather take their trials at the Old Bailey, than in any other court in the kingdom.
On this occasion it may not be improper to make a remark on the immense power that is lodged in the breasts of our judges who go the circuits. A great deal of this power is discretionary: it remains with then to reprieve the convict, or to leave him for execution: an awful trust which makes the possessor of it accountable to God and his own conscience. We have no idea but that all the present judges exert their power in the mildest manner: but times have been, when magistrates have wantonly sported with their authority, to the destruction of the innocent, and the eternal disgrace of themselves.
This circumstance should hold forth a lesson of caution, never to trust the authority of a judge but with a man distinguished equally by his knowledge, integrity, and humanity.