The national era. [volume] (Washington [D.C.]) 1847-1860, 1856-05-15

tered, having heard of the proceedings, when
Herbert seized him, and the two brothers closed
On Herbert The struggle now became in
tensely exciting, and as it proceeded crockery
and chairs were broken profusely by the parties
to the contest
"Col. Mckay testified that he saw, when he
entered the dining room, six or seven persons
in scuffie, and thought it was general fight
among the servants of the hotel. He beheld
one of the servants knock down Mr. Gardiner
with chair, and he saw three servants striking
Mr.. Herbert and holding him by the wrists.
One of them struck him with a chair, when
witness seized chair to defend Herbert, who
was sinking under the weight of those upon
him. Gardiner was beating them promiscu-
ously. After Herbert fired his pistol, the other
two servants still oinched him. Mr.. Smith
rushed forward with cane, saying, sIf you
don't release him, I'll kill you Mr.. Herbert
was injured, and the witness placed patch on
his nose. Herberts pistol was single barrel. +"
This statement is confirmed by some of the
witnesses for the defence.
Saturday morning, the Justices delivered
their opinion, saying:
"After a careful examination of the evil
dence, we feel it to be duty we owe alike to
the defendant and the Government, that the
ends of justice may be fully met to send the
matter to the Criminal Court of this District
AS to the application for bail, we are divided
in opinion, and we therefore commit the de-
PENDANT to the custody of the Marshal until he
be discharged by due course of law"
Saturday afternoon, the case was brought
before Judge Crawford. The testimony was
repeated, and the matter continued till Monday
morning, at 10 o'clock, when the Judge deci-
ded as follows:
"The testimony adduced at the hearing, on
the writ of Aabeas corpus, directing the Marshal
of the District Of Columbia to bring the body
of Philemon L. Herbert before me on Saturday
last, has been the subject in connection with
the law arising thereon, of as full consideration
as the intervening time would allow. l was
strongly impressed by the evidence, as it was
detailed, and the reflection, of which have
sought aid, instead of changing that impression,
has strengthened the conviction entertained
when the evidence was closed. l abstain from
giving the reasons for the conviction arrived
at-sohy, must be obvious.
"In any view which Jury can take of the
evidence, under proper instruction from the
Court as to the law, it is quite clear to my mind
that a conviction for murder should not take
place. If the evidence had left room for de-
bate whether the prisoner was guilty of murder
or manslaughter, or was entitled to an acquit-
tai, although the ground for such debate might
have been slight, l should have remanded him
to prison;
inquiry just stated, viz: whether charge OF
mansaughter can be maintained or the defend
ant should be discharged, there is contradictory
kao nnf n .cfc Int nj
terly irreconcilable testimony; and it is not for
the Court, but the Jury, to say what of the ties
timony they will credit, and to what the weight
of evidence which may be adduced on trial
shall point. When a matter of fact is involved
the Court should bail or remand; to discharge
would be for the Court to try and decide the
truth of the fact for which person may be con
victed, instead of the jury Retersdo6,, Lay o.
Bail, 1928, 10 Lao Library, 294, &c.)
"The order of the Court is, that the prisoner
enter into a recognizance, with one or more
good surety or sureties, in the sun. of ten thou
sand dollars, conditioned for his appearance al
the next term of the Criminal Court of the
District of Columbia, to be holden on the Sd
Monday of June next, to answer 70 the charge
Of manslaughter on Thomas Heating, and not
to depart the jurisdiction Of the Court without
the leave thereof; and, on his failure to do So
that he be remanded to the Jail of Washington
county, in the District of Columbia.
"THos. II. CRAWFORD"
In the course of few minutes, the names Of
Joseph II. Berrett and gspes Owner were as
ISOLATED with that of the Defendant hiL,self, in
a recognizance as above, and the Court ordered
Mr.. Herbert &c be discharged from the custody
of the Marshal.
The Dutch Minister, Mr.. Dubois, lately ar
witness of the ARRAY, from beginning to end
and it was hoped by some that he would, on
invitation from the Secretary of State, give his
testimony. But he declined.