COURT OF EXCHEQUER, Nov. 13.CROWN CASE.THE KING v. TOWLE.At Twelve o’clock the Judges sat in the Exchequer Chamber, to hear the arguments of Counsel, on a special verdict, reserved in the prosecution of James Towle, one of the Luddites, who was tried with two others at the last Leicester Assizes, before Mr. Baron Graham, for shooting a pistol, with intent maliciously to murder George Usher.Mr. DENMAN addressed the Judges in behalf of the prisoner, and stated, that a question was put to the Jury, after they had found a general verdict of Guilty against all the prisoners, Whether Towle was guilty of shooting the pistol? They answered, he was not the person who shot with the pistol. On that declaration a motion was made in arrest of judgment, and the case came before their Lordships, as a verdict of Guilty of maliciously firing, though the prisoner was not the person who fired. He had to contend, that the verdict, under such circumstances, was an acquittal.Sir V. GIBBS.―The Jury do not find he was the person who pulled the trigger: but they find, that he feloniously aided and abetted the others in the unlawful act.Mr. DENMAN then observed that he had to submit their Lordships, that the three last counts in the indictment, which charged the prisoner with being present, aiding and abetting the persons who fired the pistol, were not good, and that they could not be supported in law. He then proceeded to state why the judgment in the case could not be sustained against the prisoner.―The word feloniously, which was not annexed to the act of the prisoner, was required in law to set out the offence. In the three last counts of the indictment it was omitted.Lord ELLENBOROUGH.―Do not the words imply that he was privy to the motive, which constitutes the fact?Mr. DENMAN submitted that the indictment did not bear that construction.Mr. REYNOLDS, in support of the prosecution, said, the finding of the Jury was a general verdict of guilty. His proposition, with respect to all the counts, was, that the whole were to be taken as one count. The circumstance of being present, aiding and abetting wilfully to commit murder, was indisputably a felonious act. It could not be denied that the prisoner was present aiding and abetting, and consequently he was privy to the felonious intent. There was enough to bring felony to the prisoner, without introducing the word “feloniously,” as contended for by his Learned Friend. He did not contend for any new construction of law, but one which had been acted upon during centuries, and was to be found in books of the highest authority. In the course of his argument he contended that the finding of the Jury was good, and that the verdict ought to be sustained.Mr. DENMAN was heard in reply, and the Court was cleared.The Judges gave no public opinion on the points.The discussion of the above cause excited considerable interest. Nearly all the Gentlemen of the Bar were in Court.
The Leicester Chronicle of 16th November 1816 also covered the hearing:
COURT OF EXCHEQUER, Nov. 13.
The twelve Judges sat in the Exchequer Chamber to hear arguments on the reserved case of _____ Towle, one of the men convicted before Mr. Baron Graham at Leicester. The Prisoner was one of those persons connected with the frame-breakers, and was charged with several others, with shooting at certain of his Majesty’s subjects with intent to kill. The two points reserved were, first, that the Jury having found the Prisoner guilty of being present, but not of firing the pistol he could not be found guilty as a principal: and further, that on account of the word “feloniously” being omitted in the counts, charging him with being an aider and abettor, neither could he be found guilty upon those counts.
Mr. Denman was heard at considerable length in support of the objections taken at the trial, and submitted, that the Prosecutor’s Counsel, by having put the question to the Jury, whether the prisoner was the person who fired the gun or not, and having drawn from them an opinion, must not now complain, if that opinion proved fatal to the prosecution.
Mr. Reynolds, on the other side, argued in support of the verdict Guilty; and contended, that the word “feloniously” being mentioned in the first count, must be taken to be so connected with the words “then and there present aiding and assisting” in the other counts, so as to over-rule them all. The Learned Counsel also contended, that this case came precisely under the provisions of the Black Act, and therefore, that all those aiding and abetting must be considered as principals. With respect to the question put to the Jury, and their finding upon it, the question itself was unnecessary, and the answer to it ought, in no way, to affect the verdict in any legal of view.
The Judges took time to consider their judgment.
The same edition of the Leicester Chronicle also reported the outcome, which had started to appear in newspapers:
Towle the man who has been so long under the sentence of death in our county gaol, is at length likely to end his days in an ignominious manner; as we are informed, from unquestionable authority, that the twelve Judges have decided against him. It is supposed that he will be executed some time next week.