This trial is briefly mentioned in the book, Sir William Garrow: His Life, Times and Fight for Justice, but merits fuller treatment since it brings together in one case the issues of corroboration of accomplice evidence, pious perjury by juries and an example of a jury changing a verdict which had already been handed down.
The 1740s saw an effort made to exclude the evidence of an accomplice of the accused who was endeavouring to save his own life by testifying against his partner in crime. In the first five months of that decade there were four well-reported cases in which uncorroborated accomplice testimony appears to have been sufficient to convict. Then, in December 1744 there were three acquittals in which the only ground mentioned for the verdicts was lack of corroboration.
Subsequently, May 1784 produced a case where the prosecutor proposed to call an accomplice as his first witness but the judge, the Recorder of London, said whether he could do so or not had always been considered a matter of discretion for the judge. “Different judges”, he continued, “hold different practices, but I am clearly convinced that the better way is not to examine the accomplice first, for this reason: the jury ought not to receive impressions from evidence of which ultimately they may not be at liberty in point of law to believe”.
Garrow, acting for the prisoner, immediately added, “My Lord, I am not fond of the jury hearing what they are afterwards told to forget”. The accomplice’s evidence was excluded and gradually came the rule that whilst the evidence of an accomplice was admissible the judge had to warn the jury of the danger of convicting on such evidence unless it was corroborated. If the warning was omitted the conviction could be quashed.
Merryman and Pickering were charged on 3 July 1789 with feloniously breaking and entering the dwelling house of Patrick Neale and stealing articles valued in total at thirty-two shillings.
Neale gave evidence that he was employed as a house-keeper in Spitalfields but lived with his wife in Whitechapel. He slept at night in his employer’s house leaving his wife at home in their own house. On the 6th May his wife had come to him about three o’clock in the morning to say there was an alarm as if someone was trying to break into their home. He had been unable to leave his employer’s house but on returning home the next day he found the staples of the front door and the lock strained a little and forced out of place. His wife, he said, was out of her mind with fright and she did not give evidence. A Catherine Quin then gave evidence that the stolen property, which was in court, belonged to the Neales. Evidence was then given by constables of the capture of the prisoners and finding the stolen goods in the lodgings of Pickering.
The next prosecution witness to be called was James Roche who had been with the prisoners when the theft was committed. In answer to Garrow, on behalf of the prisoners, Roche admitted that he was a thief. He then outlined how he and the prisoners had set out to rob and had seen Mrs Neale leave her house. When they shoved against the door of her house it went open and they entered and took away a variety of goods. He could not say if the door was fast, one of them had pushed it and it opened. Garrow endeavoured to discredit the witness with aggressive and sarcastic cross-examination about his thieving but at least the fact of the theft was clear although there was some doubt about the housebreaking. In the event the jury found both prisoners guilty of both offences and as the latter was a captial crime the penalty was death.
Garrow immediately addressed the judge before the verdict was recorded to submit that on the capital part of the charge there was no evidence whatever beside that of the accomplice. He then suggested that, without testimony from Mrs Neale, they were entitled, in a case where the lives of two men were at stake, to assume that she had gone out of the house leaving it insecure. In such a case, he said, “always bowing (as I am sure it is my duty to do) to the authority of the Bench, and to the judgment of the jury, who I know will always remember mercy is the predominant feature in any verdict”, he had taken the liberty of suggesting that the door was insecure, in order that the jury if they saw fit might mitigate the case and not find the two men guilty of an offence of which it seemed to him there was no evidence.
The judge was extremely obliged to Mr Garrow and said it was always his wish that mercy might be mixed with the exercise of justice. However, the evidence of Mr Neale meant that the testimony of the accomplice did not stand singly by itself. Recently, all the judges had unanimously decided that an accomplice was a competent witness but his credit was to be left to the jury. And where a person appeared in court to save his own life by giving evidence against those who were on trial juries should not give credit to it unless it is confirmed. But it only need be confirmed in the material part of it. In this case he surprisingly said that his testimony had been confirmed with respect to the things found in Pickering’s lodgings. But how far that credit should extend was for the jury and not the court to decide, although it was not to be narrowed to the extent suggested by counsel. He had wished, he averred, that the jury would have found the prisoners guilty of the theft only but it was their province to decide, not his.
Garrow intervened to say it was not too late as the verdict had not been recorded. The foreman of the jury indicated that it had been their wish to leave out the capital part but they had doubted whether they had the power to do so. The judge replied that certainly they had the power. Counsel were not permitted at the time to address the jury but, as so often, Garrow did so rising to say: “Gentlemen, the verdict is not yet recorded, and I am sure it will reflect not discredit on the Jury to alter their verdict”, adding as a sweetener to the Bench, “particularly after the humane observations from the learned Judge”.
The jury then found the prisoners guilty but, with pious perjury, valued the goods at 4s. 10d which resulted in their being transported for seven years instead of facing the gallows.
Full details of this trial: Old Bailey Proceedings Onlline. (www.oldbaileyonline.org 24 March 2010) 3 June 1789, Trial of John Merryman and William Pickering for Theft by Housebreaking. (Ref: t17890603-66)