Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1856-07-25

HERBERT's CAsE,-A private letter from
San Francisco to the editor OF the Manchester
American writes thus of 2. S. Herbert, the
member from California who shot Heating
" Herbert is we'll known throughout this State asa
shoulder-strikcr and bowie knife and pistol bully,
OF the worst description. lie is n gambler by pro-
fession, and formerly dealt "Monte" in Mariposa
County. That he was never legally elected to the
high and responsible position he now enjoys is a
well known fact. lie never could have been elect
cd but by political lcgcrdcmain, where honest uoics
are all Offset by the fraudulent ones that had pre-
viously been deposited under the false bottom of the
ballot-boN ] will venture the asse. ton that there
is not an h2nest and candid man in this state (who
has lived here since 1851, y but what believes that
this gambler Herbert, occupies his seat at Wa shing-
ton by virtue Of AS toui u fraad as was ever practic-
ed upon the franchise of a free people"
Tho Jury could not agree on his first trial,
and he is still in prison. Should he be set
free on his second trial, he will probably find
it wiser to stay In Washington during the
vacation Of Congress than to return to his
constituents. The Vigilance Committee are
reported to have warned him to stay away.
The y. Y. Times gives the following ac-
count of Judge Crawford's conduct at the
trial
After the case had been closed by the District
Attorney, Mr.. Percy Walker, counsel for Herbert,
rose and read a paper cnbodying the instructions
which he wished the Judge to give the Jury as his
charge. This paper was taken by Judge Crawford,
and Immediately handed over to the Jury as the in
structions Of tho Court We donbt If the records Of
Criminal trials in the country can show SO shameless
an espousal, by q presiding Judge, of the cause of a
prisoner a%rraigncd before him.
The paper thus prepared for the jury by
Herbert's counsel, and adopted by Judge
Crawford, was as follows
"l. If sudden ARRAY arose between the accused
and the deceased, and afterwards several other per-
sons interiored to assist the deceased, and by these
! assailants defendant was borne down and beaten,
and had reason to believe that he was in imminent
danger Of great bodily harm, from which he could
not safely escape, and while in this position fred
the pistol by which the deceased was killed, II tDas
| an 1uigneat Of tatc d case NJ crcHSabie h1niciis, and q
IS imm1tcrdi, IN the absence II pcmsdiatOn and NAL
zee, By lrh9mt The ARRAY was commenced. And it is
also not material Tat the accused might hare escaped
before the il imminent peril came upon him, if at the
time the peril came upon him he had reason to be-
lieve himsel in imminent peril of life, or of great
bodily harm, and when he fired the pistol he could
not safely escape.
g. I, nave authorized Herbert to take the life Of
Heating. he necessity NJ dung SO need MT be a lual;
for If the circumstances were such as to impress his
(Hcrbert's) niud with the respous bic beiiei that
such uecess ty was impending it is sufficient
3. If the jury believe, from the evidence, that at
the tune the pistol was discharged, Herbert was
being pressed by superior numbers and was in dam
ger u death or Of serious bodily harm, auI from
which he could not escape, he was justified IN TAX
ing lie.
!. If the Jury entertain reasonable doubts as to
any material. facts necessary to make out the case Tor
the Government, they must give the benefit TO the
defendant"
These Instructions are directly in the ceth of CIV.
cry principle Of criminal law, and put it in the pow
er OF an armed ru1ian, at any time, to kill any man
against whom he may have a grudgc. He has only
to commence an atray,-and then believe himself in
peril, not Of death, but of 'seriOus bodily harm; >"
and then he is at tull liberty to shoot his victim and
be acquitted on the ground OF justifable homicide. ;
actual peril, from which there is no apparent mode
Of csc pc, and that the alray must have commenced
without fault Ut the party nccgSed. Under Judge
Crawford ruling, II Brooks, upon nssaultiug SUM
uer, had e uud hIm more than a match Tor HIM, and
If a. he Iutiuu cd IN Congress he would have done
IN that case, he had shot himd own.-he would have
been a~ijudsed to have committed Il justifablc no
ElicIdc. Aud this Is the tribunal to which the re-
VrcscutauNts of the people a.e advised to look for
the protection of their lives, and the redress Of their
wrongs. We are not surprised that. with Judge
Crawford on the Bench, such men as Brooks, Cling
man, heitt a Co., are anxious that all jurisdiction
over Congressional brutality should be given over
to the Courts of the District. They are perfectly
safe in the Preparation of any outra &c they may
cnuOce to commit.