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2(18 TRIAL OF JOHN W. WEBSTER.
the commission of the homicide, I wish to call your attention to that
technical defence which has been stated and explained to you by the
counsel associated with me. This involves the consideration of the
indictment, and the various averments contained in it,-the extent of
the obligation of the Government to prove those averments,-and the
sufficiency of the evidence to support the charge as alleged in all or in
any one of the counts which it contains.
The first and second counts in the indictment are, substantially, and.
for all practical purposes may be regarded as precisely, the same. In
the first, the assault and mortal stroke are alleged to have been made
with a knife; in the second, they are alleged to have been made with
a hammer.
While the authorities, which have been read to you, show that the
law requires that the instrument by which the homicide was occasioned
should be described in the indictment, they are equally clear in the
statement, that the proof need not, in this particular, exactly corre-
spond with the averment; that, if the homicide be alleged to have been
caused by any described instrument, proof that any other instrument
capable of producing the same, or a similar effect, was used, will be
sufficient to maintain the averment.
The indictment may, therefore, be considered as alleging, generally,
in each of the two first counts, that the homicide was caused by striking
with an instrument capable of inflicting a mortal blow. And it may
be conceded that any evidence which would support either would sup-
port both of those counts.
The third count alleges, that the assault and mortal blows were
made with the hands and feet of the defendant, and by striking and
beating the deceased, and by throwing him with force and violence
upon the floor. As there is no evidence in the case, which is relied on
to support or maintain the indictment in the form or manner in which
the offence is declared in this count to have been committed, it may
be entirely dismissed, without further remark.
The fourth count alleges, that the defendant made an assault upon
George ParkMan, and "in some way and manner, and by some means,
instruments, and weapons, to the jurors unknown, wilfully, feloniously,
and of malice aforethought, did deprive him of life."
Now, we claim that the law has distinctly prescribed what formalities
shall be observed, and what averments are necessary and indispen-,
sable in an indictment for murder. Upon this subject, we present to
you our views; but you will receive full and ample instructions from
the Court and by those instructions you will undoubtedly feel it your
duty to be governed. The Constitution of the State ordains, that ail
offences shall be described in all the accusations to which its citizens
shall be held to answer, fully, plainly, substantially, and formally. The
crime of murder, though made capitally punishable, is not particularly
defined in any of our statutes; but its definitions, and all prosecutions,
and modes of proceeding against parties who may be charged with its
commission, are left to be ascertained from the provisions and prin-
ciples of the common law. Now, we contend that that law has clearly
and emphatically fixed and settled what are the essential and indispen-
sable formalities and averments in an indictment for this offence; and
that a description of the manner in which the death was produced or
occasiongd is one of those essential and indispensable formalities and
averments. We have called the attention of the Court, in your presence,
to those legal authorities which we think fully sustain the proposition
we assert. I shall not, of course, read them to you again, but content
myself with a simple re-statement of the position we assume. The Gov-
ernment must make its accusation in conformity to the requirements
of law, or the party charged will not be bound to respond to it.
With respect to this fourth count in the indictment, we insist that
it is fatally defective, because it does not set out or describe the man-
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