The national era. [volume] (Washington [D.C.]) 1847-1860, 1856-07-17
THE TRIAL OF MR.. HERBERT.

The trial of Mr.. Herbert took place in this
city last week. Mr.. Brewer, Of Maryland, was
associated with Mr.. Key, Prosecuting Altor.
ney, in the prosecution, Joseph Fl. Bradley and
Percy Walker, NJ. c., appeared for the defence
The examination of witnesses having been
closed, Mr.. Brewer addressed the Court in q
speech which was concluded on Saturday morn.
ing. He was followed by Mr. Walker, in
speech of two hours length, and then by Mr..
Bradley. Mr.. Key closed the proceedings
What follows is copied from the National In.
teiligencer:
=" 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 hesita-
ton, accepted, and which we now append
These instructions, we have reason to believe,
would not have passed without question by the
District Attorney, had the hour not been so
late, and his physical strength less exhausted
than it was by the strenuousness of his exer-
| tons, the heat of the room, and the tedium of
the long trial
Instructions to the Jury.
accused and the deceased, and afterwards sew.
eral other persons interfered to assist the de-
ceased, and by these assailants the 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, fired
| the pistol by which the deceased was killed, it
was, in Judgment of law, a case of excusabie
homicide; and 1t is immaterial, in the absence
OF reconciliation and malice, by whom the al.
fray was commenced. And it is also not ma.
terial that the accused might have escaped be-
fore the imminent peril came upon him, if at
the time the peril came, he had reason to be-
lieve himself in imminent peril of life, or Of
great bodily harm, and when he fred the pistol
he could not safely escape.
I'D. To have authorized Herbert to take the
life OF Heating, the necessity for so doing need
not be actual for if the circumstances were
such as to impress his (Herbert's) mind with
the reasonable belief that such necessity was
impending, it is sufficient.
"3d. If the jury believe, from the evidence,
that, at the time the pistol was discharged,
Herbert was being pressed by superior num-
bers, 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 to any material fact necessary to make out
the case for the Government, they mus. give
the benefit to 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 Principle in these instruc-
tons what is it? Simply this-if an assail-
ant, in the progress of an ARRAY, provoked by
himself, finds himself in imminent danger Of
getting the worst of it seriously, owing to su-
perior force, he is justified in killing the assail.
ed party. Whether the superior force be found
in the greater physical strength of the assailed,
or the number of the persons assisting him,
certainly has nothing to do with the Principle.
Mr.. Wilson, for example, meets Mr.. Brooks OH
the avenue, insults and strikes him. The as
sailed clenches Mr.. Wilson, and aided by one
or two friends, bears him down, threatening
him serious bodily harm. To prevent this, Mr..
Wilson shoots Mr.. Brooks and kills him. and
Judge Crawford in,tructs the Jury that this is
justifable 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 pat
him in great bodily peril, why would not Mr.
Wilson be equally justified in shooting and
killing him? 1t is the action of superior force,
putting the assailant in peril, no matter OH
what that force depends, which justifes the
homicide.
1t comes to this, then, that Mr.. Wilson, be.
ing the aggressor, assaing Mr.. Brooks, and
in the progress of the rencontre, 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 Order and
Security-the reign of Violence is inaugurated.
We have read the Evidence in this case and
the Instructions, and our conclusion is, that
Judge Crawford, in the eye of Justice, is q
greater criminal than Mr.. Herbert"