Evening star. [volume] (Washington, D.C.) 1854-1972, 1856-07-24
EV ENING STAR.
LOCAL INTELLIGENCE.

SECOND TRIAL OF HERBBRf.-Sscenh Day.
Yesterday, after our report closed, the argu-
ment upon the instructions proposed was con-
tinued by counsel.
Mr.. Key contended that the instructions
given at the last trial shut out the circum.
stances Of the conflict of Herbert beginning
the ARRAY with deadly weapon, and Of Pat
rick Heating seeking TO defend himself by
Wrestling the deadly weapon from his grasp.
The instructions Of the defence ask the Jury to
shut their eyes to the anterior peril Of Patrick
Heating.
Mr.. Walker followed and stated that Mr..
Key had confined his citations to very few
standard authorities. but that Mr. Preston had
q large number to offer to which he would not
have the opportunity of replying. He sup
posed it would only be pro forma proceeding,
as far as the Court was concerned, the ques-
ton already having been decided, but that
the argument was intended by the prosecution
to affect the jury.
Mr.. Preston rose to say that he was quite
willing to address his argument to the Court
alone, and that the jury be permitted to re-
tire while he was delivering it He then Of
fered and proceeded to give the citations he
proposed to make in support of his argument :
4th Blackstone, PIP. 1893, 200, 201; Keeling
Report, D. 119; 4th Dallas; I'd Ashmead !;
Foster, PIP 256, 257.
After Mr.. Preston had announced the su-
thorities to which he should refer, Mr.. WAL
ker proceeded, in an argument Of two hours
to oppose, with great ability, the instructions
proposed by the prosecution. 1t was, he ar
gued, settled rule of practice that where the
Court has given . charge that it will never
neutraliEe that charge by granting conflicting
instructions.
Mr. Walker took up the propositions, and
dealt with them sertGt,n,. BE contended that
the evidence showed that Thomas Heating
was quite as ready to enter into the ARRAY as
Herbert. The great question for the Court
and Jury, there, was the ascertainment Of
truth no matter how it effected the dead or
the living. If blood was Herberts object,
why did be not use the pistol when he first
approached Tom Heating? The theory of
criminal prosecutions, he contended, is this
that the sole object of Government should be
to ascertain the truth and where it lies; not
prosecuting the case with severe rigor, nor
seeking to influence the Court by instructions
Mr.. Preston followed in q powerful argu-
ment, which occupied the closest attention of
the audience until hslf-past six O'Clock, D N.
Mr. Preston eontended that the opinion of
the Court might be modified. 1t did not fol-
low that because the Court had granted
prayers on the former trial it should not grant
additional ones On this trial. The uncOntra-
dicted proof shows. he urged, that Herbert
called for his breakfast in a rude, unkind
and ungentlemanly manner. 1t was admit
ted by Gardiner, and all, that Herbert ap-
preached the waiter with a loaded pistol. In
legal acceptation this approach upon the
waiter was an assault. Mr.. Preston spoke Of
the case of Earl Ferrers, member of the
British Parliament, who struck down his ser
want, and paid the penalty upon the tree al
Tyburn The case Of Ferrers, he believed
was the first where a member Of Parliamen
was concerned, and this of Herbert the frs
where q member of Congress was involved
Ferrers had been pronounced unanimously
guilty, and though he then quartered arm!
with the King of England, he was not allowed
even the privilege Of being beheaded instead
OF death by hanging
Upon the conclusion of Mr.. Preston's argu
ment the court adjourned.
BIG1TH DAY.
Upon the opening Of the Court to-day, hi
honor Judge Crawford gave his decision upor
the six prayers proposed instructions*) asked
by the United States, az follows:
Quail fcatIon to the first instructton.-Th,
instruction prayed above is abstract 1t pre-
sents a naked proposition without reference
TO any fact disputed in the case, or any fac
sworn to on either side, except only the pre-
sence of the prisoner at Willard 9 Hotel on tn
sth of May last, having a pistol in his pos
session, and the shooting by him of Thoma
Heating, which facts are not contested 1t i
the duty Of the jury to give their verdict OIL
the whole evidence adduced on this trial
and on that only, in connection with the Law
as it shall be given to them by the Court
The Circuit Court has decided uniformly tina
the Court is not bound to grant an abstract in
struetion, and the same Court has gone so ia
as to decide in a case which went from thi
Court, that the Judge, in answering a praye,
give an opinion when he modi6es the instruc
ton asked for on an abstract point of law, it
error.
Second. The jury may believe the aboy
statement Of facts and yet the defendant no
be guilty Of manslaughter by reason of addi
tional facts which the evidence, in the opinio
of the jury, may have established. If 80, al
the facts are to be weighed together by you
The prayer sets forth not only a part of tn
evidence, but so small a portion of il, as L
have very little application to the case.
excludes all the material facts that have beel
sworn to on both sides, and which are in con
troyersy. All these you are to weigh an,
decide upon. The case supposed would b
manslaughter, but unless all the testimony o,
either side is thrown out Of view, IL is not thi
case
THIRD. The above statement of facts voul,
make a case Of manslaughter if they are be
1ieved by you from the evidence, but it en-
braces only part of the evidence, and a
already remarked, it is your especial pro
vince to draw your conclusions of the guilt o.
innocence Of the accused from the entire bod,
of testimony, and to give credit or not to AM
one or more of the witnesses on either side.
Fourth. On the statement Of facts in thi
prayer it is granted. But the Court think
the first statement in il is capable of miscon
struction as to the nature Of the assault said
therein to have been made by the accused
upon the deceased with a deadly weapon
Whether there was such an assault and il
there was, what was its nature, whether the
pistol was pointed at deceased and used as
deadly weapon, or whether it was used as
man might use a stick or other instrument are
questions for you to decide, and this and all
other questions involved in the cause trying
you will determine, not on any partial state
ment Of facts but upon the whole evidence
This remark in regard to your duty has been
repeated and will be again, because the Dis.
trlct Attorney has insisted that to grant the
prayer Of the defendant would be to exclude
part Of the evidence from the consideration
Of the jury, and should regret very much if
such an erroneous idea should find a resting