He was indicted at the ensuing Old Bailey Sessions for the offence of stealing the money, when Mr. Garrow appeared for the prosecution, and Mr. Scarlett for the defence.
Upon the witnesses being examined, Sir Thomas Plomer stated that he had given the money to the prisoner for the express purpose of purchasing exchequer bills. He had given it to him in a check, for which he got cash. The prisoner did afterwards lodge £6000 of the bills at Sir Thomas’s bankers.
Mr. Scarlett, in addressing the Court for the defence, hoped he should not be understood to entertain any other sentiments of this offence than a conviction of the moral turpitude of the prisoner; and he was satisfied the prisoner himself entertained no other sentiment, and felt all the contrition belonging to such a crime; but it now became his duty to make such objections as occurred to him:—First, there could be no charge of this sort for stealing the check, for it was in evidence that the prosecutor had given it to the prisoner for a specific purpose; and it was not altogether misapplied, for he had purchased some exchequer bills, and the law did not allow the act of felony to be in part separated. The second objection was under the statute of the second year of the reign of George II. by which the security intended by the legislature was given to such property as was still available to the party prosecutor. In this case the party prosecutor had parted with all control over the check by delivering it to the prisoner. Thirdly, the felonious intent of the party taking was not in itself sufficient to constitute a felony when the party to whom the property belonged had relinquished his control over it; and in support of these objections, he referred to several cases in point.
After some observations by Mr. Garrow, it was agreed that the jury should find a verdict subject to the future opinion of the twelve judges upon the chief baron’s report.
The chief baron acquiesced in this arrangement, and then adverted to that part of the evidence which went to show the previous intent of the prisoner to commit the felony; observing, at the same time, that it was impossible, upon such evidence, not to find the prisoner guilty, who, in consequence of the objections made by his counsel, would have the benefit of the judgment of the twelve judges hereafter.
The jury immediately returned a verdict of—Guilty.
During the whole of the trial the prisoner was much affected.
The result of the argument before the judges was, that the facts proved did not, in estimation of law, amount to felony; and as Walsh had been convicted of that offence, he received a free pardon.
The Commons expelled him from his seat in their house; and he was again made a bankrupt, whereupon Sir Thomas found himself entitled only to a pitiful dividend under the second commission.