The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-07-13
Trial ef Hon. p. r. Herbert, Of California,
for the Murder 81 Thomas Kesting.

hour and after warm chase for material n this city and
in Georgetown, by Deputy Marshal Phillips and his assist
ninety persons had been brought In and others summoned
before the list finally completed. Those called amer
through having formed expressed opinions. ElJah
EdmunstOn excused the OF illness, as was
Charles MGry Henry puray was waa e9.
cused the ground OF his entertaining Conscientious
scrupes in regard TO capital punishment.
The following Is the jury obtaincd-
Edward N. Edelin,, Eimrod Garretson
John I. Bradley, Henry Wilson,
John Scribner, Robert Cohen,
Enoch Moreland, John +. Bridget,
John SeSsiord Jr., Peter r. bacon,
George w. Cochran, Henry d. Gannell
BY consent Of Court and the agreement OF counsel
eleven Jurors were sworn in, and the last Mr. Gunncl
was accepted bur not 10 the end that the Jurors
might be enabled 10 spend the nj ht ut nome ana make
the necessary arrangements for their absence tcrerom
during the uiai.
brought into court and placed in the prisoners box.
Proper precauton had been taken to secure ventilation
minutes after he opening of the room filed
with audience whose Gcep interest in the proceedings
was manifested by the silent tenaclty with which they
retained their tresome standing positions.
request the counsel for defence the space between
the prisoners box and counsel was cleared in order to
facilitate communication between them.
The names Of the jury were called, and Mr.. Gunnel
the twelfth juror, sworn IN.
Geographic despatch having been received last
last night the friends of the Heating family in New
York city, TO the effect that they had been unable to
cure the counsel desired that quarter at late hour
last right j. Brewer Esq, late OF Montgomery county,
Md retare ed for the prosecution and this gentleman
accordingly took his place this morning by the side Of the
Witnesses for the osecuiion we're called and sworn in
b, order Of Court he witness, were then removed
from the room.
Mr.. Bradley, Of the counsel for defence claimed
that the rsle shou, not Apply to certain witnesses who
had been called by the defence, viz. two three jus
tces Of the Peace and member OF the Senate to mpeach
the testimony Of witnesses for the prosecution who had
testified on the preliminary examination. The position
was opposed by the District Attorney and the rolling OF
the Court was in opposition TO the claim of defence
Tie case was opened by the District Attorney Mr. Key,
who addressing the jury, proceeded to de all the sub
stance OF the evidence TO be aaduced for the prosecution
He went 70 deae the difference between murder and
manslaugh,er, quoting from Russell PIP 4sI, 5l3, $40,
from Archbalds Criminal Law, demonstrate what
xnuaing circumstances alone be urged against
BY which the jury should be governed in this trial
Mr. Ratclifie followed for the defence He commended
that undue excitement had been raised in regard to this
known better Mr. r. proceeded TO indicate the line of
defence to be taken and read from Russell and Green
leafs Evidence to show the law in Of usable ho
mcide in defence OF person or property he concluded
with outline Of the evidence to be produced for the de-
fence and which he claimed should result in verdict Of
acquttai.
Dr. Thomas Miller was sworn for defence Saw Thomas
Heating just before he died. this WAS about noon he died
IL few minutes after; he had the body removed to the
Innrmary, and the uext day made an autopsy Dr. N.
proceeded TO describe the position Of the wound. He
found the outer surface Of the chest OF deceased much
blackcncd; there WAS o prefuse hem0rrhage, wasn-
basin full Of blood the ball passed directly backwards
went through directly HORIZONTAL he had compared the
line Of the ball afterwards upon skeleton and the
il had followed was perfect plane; the wound had occa
stoned DEATH the deceased Muscular, large sized
man, in full vgor; should judge his weight in the
neghborbood Of 100 pounds the bullet found lodged
under the skin; was large bullet, Dernger bullet;
witness readily passed his little finger into the wound
Potrck Keang sworn--ls brother Of the deceased;
thinks il was sth Of May; was in the kitchen: several
PERI to him and told him that Mr.. Herbert
matter was 90 bad as il was; he went into the dining
room and coming in Mr. Herbert in the position
power 10 please gentcmaa took from one Of the
square tables pitcher which he supposed 10 have milk
bert showing all the marks he could at the same time
Of humility; Herbert turned towards him, and advanced
towards him in very fighting and bold attitude witness
approached him In very demonstrating tone to let him
know that he was come to pacfy him; prisoner had
pistol in hand and chair in the other witness began
to be seriously alarmed; Herbert approached him hur
riedly and witness cinched him, striving protect him
self from the pistol; the pitcher 'and sugar box
did with, but thinks that in graphing they fell TO the
floor; the palm OF Witness hand met the mnzzle
The o pistol, , and ,, small portion Of The nesn
another gen lcmanly looking man strike him
the head with chair, and continue to strike him and
bis brother promscuously through the strugglc the
blows which witness received bis head and the inter-
ference OF the French cook caused him his hold
was the shot Of pistol and iron moasscs srewed
his coat, and which he supposed was blood he
afraid was shot, but could not ascertain this be-
fore they separated during this he saw no
person In the room In the shape OF guest gentleman
u. III. Netherlands
aud the gentleman whom he supposes Mr. Gardiner
when witness separated from Herbert he knew there
was no way to save himself but TO run away turned 70
his brother, criel out Murder ~ and told him 10 get
away succeeded In getting between Mr. Herbert and the
wall which enabled him 20 out Of the room; after
some time be came back and then his brother shot
couldnt tell who in the room; his brother was being
carried away; lost power Of himself and does
Der what happened ater when first Herbert striking
his brother, Herbert and his brother were standing wit
ness supfose, near the south door about the third
n NV hurnkRl fppfss
his brother standing the wall the inside OF
the table.
the position OF the dningroom and kitchen at Wizards
and Of the tables the round tables aloeg cast
sqe 81 the roonaong Fourteenth street; his brother
and Herbert were not clinchcd when he In the
dinneroom; when witness entered the Mr.. Card
standing " entering south door does
ccoiiec striking Mr. Herbert over the head nth a mo-
ssses pitcher states positively that be did not strike
Herbert with anyhing did not observe any marks OF
Herbert no intention Of interfering in The
arny when he entered went in the for the purpose
o. ptcyng Mr. HERBERT witness gra ped the pistol with
the evidence given by HIN ut the Justices exauna
ton as read 10 him by Mr.. Bradley had joined
with him % raise funds 10 employ counsel
The point argued by the District Attorney and the
COUNSEL for the defence whether the witness could be
questioned u the fee TO be raid the counsel for the prose
cuon contingent one. The Court decided that the
question might be put, which, being DONE the witness
cross examination which the witness received al The
hands Of Nr Bradley Mr. d. pu, the question where the
brother Of witness received his wound. The witness
showed IL TO have been ON the breast Qaughtcr)
John Edbright sworaWas present NJ the shooting at
Wizards came Into the dining Mr. Herbert
tor his breakfast part of his breakfast was on the table
the young who went for his breakfast came back
and said he could not get him breakfast boy derry
Rorn) 10 the second head waiter 10 nd out
Mr. Herberts name in order b. get order Mr. Herbert
told Riordan 10 60 out OF the room, and called him
Irish son OF b-h Herbert turned around 70 TON Kea,
ing, who about three yards 10 hc right repeated
The same words, and told him 90 clear say IL
Tom Heating made any reply; Herbert struck kcatnH
Heating turned with his back towards Herbert; Her
bert struck him on the back Of his neck with his asst In
which was Napkin Heating went the table and
picked up plate; Mr.. Herbert picked up a chair and
threw at dcceasei then deceased threw the plate nj
Herbert; then Herbert picked up erocSery and
threw al keating Mr.. Gardiner at this time he
looked up the ROOM and picking up a chair threw Il
across the room towards Fourteenth street. Thomas
keat'ng Gardiner and Tom Heating threw some time at
each other; Pat Heating came iDsx and picked up
n pitcher of molssscs lying on ~ table, Mr. yyer