Evening star. [volume] (Washington, D.C.) 1854-1972, 1856-07-23
EV ENING STAR.
LEGAL INTELLIGENCE.

SECOND TRIAL OF HERBERr-StZh Day.
After recess, yesterday, Capt. Thomas LyLss
to California in 1850; has known Herbert since
1851 or 1852; Herbert is disposed to defend
himself always against insult, but otherwise
is always peaceable; thinks this is bis char
acter through California.
Cross-examined. -Herbert's general repu.
tation is that Of a man who wouldn't submit
to insult peacesbly; thinks Herbert reputa.
ton is that of q peaceable man; knew Her
bert while in the legislature; witness is a
steamboat captain; considers his domicil to be
at San Francisce.
EZ-GOU. McDoMgal sworn.-Has known
Herbert since 1S49; has been intimate with
him; witness was at one time Governor of
California; knew Herbert at that time and
since; never heard him regarded as any other
than peaceable man in California; Herbert's
character amongst persons known to witness
IN California is that of a peaceable man and
gentleman; witness was present when Her.
bert left California.
John II. Stercart, a county officer, sworn
W as at Clark's Office on the morning of the
Sth Of May when he first heard of the ARRAY;
officer Tanning came to witness and requested
him to 20 up to Willards'; witness went up
there and was told that Herbert had gone
away in hack; witness took hack and
drove to the cars; met Waterman and Parham,
and consulted, and they concluded to 20 to the
Capitol; got boy at the Capitol, who said he
knew Herbert, to identify him, but thew could
not ind him there; the House had not organ
lzed; half a dozen members, perhaps, were
IN the House; was not more than three minutes
going from Clark's Office to Willards'; to drive
from there to thee depot took him perhaps five
minutes; was, perhaps, ten minutes debating
with Waterman and Parham there, and then
went to the House; coming out heard that
Herbert had gone to Smiths Office; witness
went to Smiths Office, and found Herbert
there; went to the watch-house and was there
three-quarters Of an hour before the whistle
at Ellis's foundery blowed for twelve o'clock.
Capt Williamson sworn Has known Her
bert since 1851; knew him in Mariposa coun-
ty, California; he was peaceable, quiet citi-
zen.
Anth0Hy RubOdeaur sworn.-Knew Her
bert in California from 1852 to 1854; resided
IN Mariposa town and county; never heard
anything against the character Of Herbert as
peaceabls man.
Cot Wilson sworn.-Knew Herbert in
Texas from 1912 to IS47; Herbert's associa-
tions were good; he had the reputation of a
quiet, peaceable young man.
Mr.. Bradley now rose and stated to the
Court that be bad been instructed by their
client to propose to submit the case to the
jury upon the evidence, without argument
The counsel for the prosecution did not sig
nlfy their acceptance of the proposal, and
called in Robert Schwsrtze, and, at the re-
quest of Mr.. Bradley, Col Mckay was called
III to hear what Schwartze might testify
SchUaTtss on the stsnd-ls pretty certain
he saw Col Mckay at Wizards that day;
thinks he saw him coming out Of the room
with Herbert.
Cross-examined.-Was summoned before by
defeRce; remembers having a conversation
AocD
remember telling Mr. Bradley that he did not
see the French cook until after the ARRAY, and
that the cook was then standing by the table;
told him that he dld not see Herbert beat
down.
Henry H. Willard recalled.
Mr.. Bradley objected to the question being
put to Mr.. Willard how much crockery was
broken at the ARRAY.
The Court decided that the question could
be answered.
Mr.. Willard testified that he was in the
room Immediately after the ARRAY; there was
not much crockery broken-a pitcher, a sugar
ooWl, and few plates; saw a salyer with the
edge bent; the salver was plated in size it
was about eight inches by twelve; the edge of
the salyer was considerably bent; the pitcher
was molasses pitcher; it had not a metal
top: it was of French china; is a pint pitcher
Patrick Heating recalled.-Is the steward
the CHINA there was not much broken; can
not say how much, on account of the agitation
he was laboring under at the time
Mr.. Bradley hero renewed the proposition
to submit the case to the jury without argu-
ment.
Mr.. Key replied that they would argue it.
Mr. Bradley asked the Court to instruct the
jury In substance as on the former trial, with
an additional section
Mr. Walker god l..
aud gave verbal description Of an addi.
tlonal section, based on evidence Of good
character, which he announced his intention
OF reducing to writing and Offering to-day.
Mr. Preston spoke of the large mass of con-
ficting evidence, and for the necessity of on.
portunity to examine this evidence and see
what weight il should bear 1t was no more
than justice to the Government and the &C.
cused that it should be gravely and properly
considered
Mr.. Bradley followed, contending with much
earnestness for speedy trial. 1t was the
hrst time he had known Government to insist
upon arguing the case before the jury when
the prisoner himself relinQuished that right
He spoke Of the hardship upon the prisoner of
being confined this hot weather in a Jail al
ready indicted by the grand jury, and con-
tended that there was no material new evil
dence adduced to vary the points Of law set
down already
Mr.. Key replied, contending that no ipius-
tise to the prisonerwas designed by asking an
adjournment 1t was now the usual time to
ADJOURN In regard to the proposition to let
the case 80 to the jury without argument he
could not say what had come within the knowl.
edge Of Mr. Bradley, but the Court was aware
that 1t has repeatedly happened that the
United States has insisted upon arguing
case before the jury. He proceeded to com
ment upon what he designated as the crockett
like instructions, which, at tho last trial, ad
been sent up to the Court before he 1.-THE Dis
trlct Attorney had a chance even to read them
These instructions had not been submitted at
the proper time, viz at the close of the evil
dence, but had been offered after the closing
arguments and just as the case was going TO
the jury. He expressed the opinion that these
instructions would now be modified by the
Court.
MI; Preston rose and warmly repudiated
any desire to crafty morbid feeling outside of
the building, as attributed He was not here
Tor the purpose of Pandering to public clamor,
a disposition he utterly despised 1t has
always been the boast of the nrofas.;on 70 .ot