Evening star. [volume] (Washington, D.C.) 1854-1972, 1856-07-23

" n,een' VI pistol or pistols WHICH
bert shot to death certain Thomas Heating
who then and there in the opinion Of said
Herbert took part in the insult and provoca-
ton aforesaid, and by words and actions IAN
lfested a disposition to commit an assault and
battery on said Herbert, such shooting and
killing Ii, in the judgment of law, manslaugh.
ter.
Third. If the Jury believe from the evi.
dence that the prisoner at the bar made an
assault and battery upon the deceased, and
the brother of deceased, Patrick Heating, in
terfered to pacify the prisoner, and to protect
the deceased from said assault, and that the
prisoner then advanced upon the said Pat
rick Heating with chair and loaded pis.
toll, whereupon the said Patrick Heating
seized the said pistol and endeavored to
wrench it from the grasp of the prisoner, and
that deceased then came to the assistance of
tie said Patrick Heating, and that the de-
ceased and Patrick Heating, and one Gardi-
ner, friend Of the prisoner, then became en-
gagged in conflict and struggle, and that the
said parties thus engaged were separated by
one DevenOis, and that the said Patrick Keat-
ing fed, and that the prisoner then seized the
deceased by the collar of his coat or jacket,
and shot him with the said pistol which caused
his death, then, in the absence of premedita-
ton and malice, the prisoner is guilty of man
slaughter
Fourth. If the jury believe, from the evil
dence, that the prisoner first assaulted the
deceased with deadly weapon, and the bro
Their of the deceased, Patrick Heating, inter-
fered to protect the deceased, and the prisoner
then advanced upon the said Patrick Heating
with deadly weapon, whereupon the said
Patrick Heating siezed the deadly weapon
and endeavored to wrench it from the grasp
of the prisoner, and that the deceased then
came to the assistance of the said Patrick
keating and that the deceased, and Patrick
heattng, and one Gardiner, and the prisoner
then became engaged in a conflict and strug.
gle, and that the prisoner then used the dead
~ weapon upon the person Of the deceased,
which took his life, then, in the absence of
premeditation and malice, it is nsansioughter,
notwithstanding the jury may believe from
the evidence that the prisoner had reasonable
grounds to apprehend great bodily injury.
FDM.-If the jury believe from the evil
oeEce that the prisoner even if he were as
sarlted could have retreated without endan-
gering his life, or without receiving great
bodily injury by so doing, and did not retreat
but pressed on the attack, and took the life of
the deceased-then in the absence of premedi-
tation and malice he is guilty of manslaughter
St1fh. If from the evidence the jury be-
lieve that on the day mentioned in the indict-
ment Philemon 7. Herbert, the accused, be-
ing guest or boarder at Willard's Hotel in
the room referred to in the evidence in this
cause, made an assault upon Thomas Heating
with loaded pistol, and that out of said as
sault arose an ARRAY, in which ARRAY the said
accused shot to death the said Thomas Kea-
ting-that then the accused is not justifable
under the law in making the plea Of self-de.
fence.
Some discussion epsued between Messrs
Key and Bradley, as to which side had the
right of closing the argument upon these in
structions
The Court thought it made no difference
which side closed the argument, as the Court
was not likely to be Influenced merely by the
last word In the controversy
Mr. Hey proceeded to recapitulate the prop-
ositions and to argue them; after noticing
under what circumstances the law permits
tho plea Of self-defence. The right Of self
defence could not repose in both parties-in
both Herbert and Heating at the same time
He urged that when party assaults another
with deadly weapon, he puts that person on
his self-defence, and in law all force can be
used for that self-defence He could find no
principle OF law that when one person COM
mits an assault and follows it up by taking
life, he is not guilty of manslaughtor. Mr.
Key cited from Foster 273 to 277. and asked
can the man who imposes upon himself this
peril take life and then get of on the plea of
self-defence? Mr.. Key quoted from Black
stone and from LIST Russell $50, 661.
JAMES MAHER.-The Organ of Thursday
last contained an article accusing Mr.. James
Maher, the public gardener, of charging the
Government 81 40 each for trees, for which Is
cents only were paid. If its insinuation has
any meaning, We state that meaning above
As Mr. Msher was out Of the city when thus
aspersed land has not yet returned) we wait
ed before essaying to contradict this SANDER
upon him, for his return. But as it might be
supposed that failure promptly to brand the
story as false amounts to an admission of its
truth, we have to say, after due inquiry, that
all the trees planted under Mr.. Maher's su-
perintendence for the Government, are bought
from private nurseries. The price paid for
them by the Government is 81 per tree, the
price charged by all the nurserymen for such
trees; which is quite moderate, as they are
very large and the very thriftiest are always
selected for the public grounds, and none
others Mr.. Maher is the owner Of a nursery
in this vicinity, from which at times he has
procured trees for the Government, as from
those of many others. He has never charged
penny more for them when sold to the Gov
eminent, than whom sold to individuals.
EXCURSION or THE ISLAND PRESBYTERIAN
CHURCHEs.-Itw will be seen that these church
es will give an excursion and picnic on Fri
day next to Fort Washington, on the fine
little boat G.. w. P. Gusts, which has been
recently fitted up for excursion parties, and
which fitting up has done away with the OBJ
jections that formerly existed against this
boat Her works and side paddles have been
taken out and the space occupied by the en-.
CINE and boilers covered over, making the
whole surface Of the boat into one splendid
saloon: the removal of the boilers, too, does
away with the heat that was heretofore ex-
psrienced in the cabin. She will be towed
by one Of the fastest boats on the river, and
one built purposely for towing. We learn that
the managers of this excursion expect to have
a largo party, especially as the charge for the |
trip Is SO cheap-only twenty five cents for |
adults, and half price for children
ASSAULTS, THREATS, &c-H. H Matters
was arrested this morning by Officer Tanning
and taken before Justice Clark, charged with |
assaulting and threatening to beat Elizabeth |
A. Berry. He was held to security for peace
Justice Clark also disposed Of tho following |
cases Sarah Butler and Eliza Walker, dis
tur nj no he Nav Topov