Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1856-08-06
[Erom the National Era.l
THE TRIAL OF MR. HERBERT.

ton, Joseph H. Bradley and Percy
Walker, NJ. c., appeared for the de-
fence.
The examination of witnesses having
been closed, Mr.. Brewer addressed the
Court in a speech wich was concluded
on Saturday morning. He was followed
by Mr.. Walker, in a speech of two hours
length, and then by Mr.. Bradley. Mr..
Key closed the proceedings. What fol-
lows is copied from the National Intelli-
gencer:
The ability of Mr.. Keys effort, despite
his admitted personal friendship for the
prisoner, and the pain of his position
thus arising, was such as to impose on
the defence the necessity Of framing a
set of instructions from the Court to the
Jury, which the Judge, without hcsita-
ton, accepted, and which we now ap-
pend. These instructions, we have rea-
son 10 believe, would not have passed
without question by the District At;or.
ney, had the hour not been SO late, and
his physical strength less exhausted than
it was by the strenuousness of his exer-
tions, the heat of the room, and the te,
dunn of the long trial.
INSTRUCTIONS TO TIE JURY.
1st. If sudden alfray arose between
the accused and the deceased, and af.
forwards several other persons interfered
to assist the deceased, and by these as.
sailants the defendant was borne down
and beaten, and had reason to believe
that he was in imminent danger of grea
bodily harm, from which he could no
safely escape, and, while in this position.
fred the pistol by. which the deceased
was killed, it was, in judgement of law,
a case Of excusable homicide; and it i,
imInaterial, in the absence of premedita
lion and malice, by whom the alfray
was commenced. And it is also not ma
terial that the accused might have es
capped before the imminent peril camt
upon him, if, at the time the peril cam :
he had reason TO believe himself in in:
minent peril of life, or Of great bodily
harm, and when he fired Tie pistol ht
could not safely escape.
Cd. To have authorized Herbert tc
take the life of Heating, the necessity fol
so doing need not be actu4l for if the
circumstances were such as to impres:
his { (Herbert's mind with the reasona.
bic belief that such necessity was i'm
pending, it is sufficient.
81. If the jury believe, from the evi
dence, that, at the time the pistol Wa;
discharged, Herbert was being pressed
by superior numbers, and was in danger
of death, or of serious bodily harm
from which he could not safely escape,
he was justified in taking life.
4th. If the jury entertain reasonable
doubts as 10 any material fact necessary
TO make out the case for the Govern
ment, they must give the benefit 10 the
defendant
Judge Crawford is responsible, Of
course, for these Instructions. If they
be Just, we know not what security any
man has for his life. There must be a
principle in these instructions what is
it? Simply this-if an assailant, in the
progress Of an affray, provoked by him
self, finds himself in imminent danger of
getting the worst of it seriously, owing
to superior force, he is justified in kill
ing the assai!ed party. Whether the
superior force be found in the greater
physical strength of the assailed, or til e
number of the persons assisting him, Gel
tainly has nothing to do with the princi-
pie. Mr.. Wilson, for example, meets
Mr.. Brooks on the avenue, insults and
strikes him. The assailed clenches Mr..
Wilson, and aided by one or two friends,
bears him down, threatening him seri-
Gus bodily harm. To prevent this, Mr..
Wilson shoots Mr.. Brooks, and kills him,
and-Judge Crawford instructs the Juy
that this is justi6able homicide Now,
suppose Mr.. Brooks should be the more
powerful man, and by his own superior
physical force, without aid from friends
should overpower Mr.. Wilson, and put
him in great bodily peril, why would
not Mr.. Wilson be equally justified in
shooting and killing him? 1t is the ac-
ton of superior force, putting the assail
ant in peril, no matter on what that
force dener1dsS which justifes the homi-
eide.
1t comes to this, then, that Mr.. VIII
son, being the aggressor, assailing Mr..
Brooks, and in the progress of the rem
contre, getting the worst Of it, may, for
that reason, Kill Mr.. Brooks, and the
Court will instruct the Jury TO bring in
verdict of justifable homicide.
If this be Law, then farewell to Older
and security-the reign of Violence is
inaugurated.
We have read the Evidence in this
case, and the Instructions, and cur con-
clusion is. that Judge Crawford. in the
eye OF Justice, is a greater criminal than
Mr.. Herbert.