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246 TRIAL OF JOHN W. WEBSTER.
you are not, therefore, to stop its wheels. Because men have been
scalded to death or torn to pieces by the bursting of boilers, or mangled
by wheels on a railroad, you are not to lay aside the steam-engine.
"Innocent men have, doubtless, been convicted and executed on cir-
cumstantial evidence; but innocent men have sometimes been convicted
and executed on what is called positive proof. What, then? Such con-
victions are accidents, which must be encountered; and the innocent
victims of them have perished for the common good, as much as soldiers
who have perished in battle. All evidence is more or less circumstantial,
the difference being only in the degree; and it is sufficient for the
purpose
when it excludes disbelief,-that is, actual and not technical disbelief;
for he who is to pass on the question is not at liberty to disbelieve as a
juror, while he believes as a man.
"It is enough that his conscience is clear. Certain cases of circum-
stantial proofs to be found in the books, in which innocent persons were
convicted, have been pressed on your attention. Those, however, are
few in number; and they occurred in a period of some hundreds of years,
in a country whose criminal code made a great variety of offences capital.
The wonder is, that there have not been more. They are constantly
resorted to, in capital trials, to frighten juries into a belief that there
should be no conviction on merely circumstantial evidence. But the
law exacts a conviction, wherever there is legal evidence to show the
prisoner's guilt beyond a reasonable doubt; and circumstantial evidence
is legal evidence.
"If the evidence in this case convinces you that the prisoner killed
her child, although there has been no eye-witness of the fact, you are
bound to find her guilty. For her sake, I regret the tendency of these
remarks; but it has been our duty to make them, and it will be yours to
attend to them."
I now proceed, Gentlemen, to the statement of certain principles of
law applicable to this case, which I shall address to the Honorable Court
in your hearing. They are all involved in the inquiry we are now
making.
We rely, may it please Your Honors, upon the well-settled principles
of the common law, as recognized in this Commonwealth, in the case of
Peter Yorke, subsequently affirmed by this court in the case of Wash-
ington Goode, and more recently in that of William E. Knowlton.-A
homicide being proved, unless it appears by a preponderance of the testi-
mony to have been committed under reasonable provocation such as the
law recognizes, is presumed to be malicious; and with this presumption,
whether express malice is or it not shown, it is murder.
The distinctions between express and implied malice, which were
properly taken, and upon the authorities so fully illustrated by the
opening counsel for the defence, I do not propose to discuss. I concur ill
every proposition which was stated upon the subject of express malice.
If the jury find there was premeditation in the mind of the prisoner, that
ends the inquiry. That fixes it, upon all the authorities cited, as a case
of murder. But, if there should be no satisfactory proof of actual pre-
meditation, the law presumes, in the absence of any controlling evidence,
that there did exist the implied malice, and it is equally murder.
Therefore, Gentlemen of the Jury, the proof of the homicide alone will
be quite sufficient for sustaining this charge against the prisoner,
whether you are satisfied of any proofs of the premeditation, or not,
unless the proof in the defence shall satisfy you, that when the prisoner
and the deceased came together, there was not merely irritating and
provoking language, but that there was a provoking blow on the part of
Dr. Parkman, which led to another from the prisoner, and which proved
fatal to the deceased; because, in implied malice, the provocation which
the law recognizes cannot be a provocation of language, no matter how
exasperating or irritating it may be. And if exasperating words were
used, and a sudden blow were given by the prisoner with an instrument
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