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306 TRIAL OF JOHN W. WEBSTER.
conflict, the decision of the question must depend upon the number of
the witnesses upon one side and the other, and the weight and credit
due to their testimony respectively.
There are two considerations always to be kept in view, in weighing
evidence of an alibi, and they apply equally to this part of the present
case.
In the first place, there is the uncertainty, when the observation was
hasty and casual, whether, without supposing any intention to mislead,
the witness was not mistaken in the person. The other is, that the
whole efficiency of the proof depends upon the accuracy of the witness
as to the time and place at which the person was seen. And in regard'
to time, where the question depends upon a short interval, it may be
remarked, that there is room for some discrepancy of statement in the
variation of the different time-pieces by which the witnesses may have
been governed.
In relation to the testimony of these several witnesses, without com-
menting on it in. detail, two remarks occur to me. One is, that not one
of them testifies to having spoken to Dr. Parkman, or of having heard
his voice, or seen him do anything; their only means of recognition were
from casually seeing him pass in the street.
Some. evidence was offered for the prosecution, for the purpose of
proving that there was a person in town about that time resembling Dr.
Parkman; the Court rejected it because it was too remote, and could only
prove one of those general facts within common experience which are
supposed to be known to jurors without proof. I do not, therefore, allude
to this as a fact proved, but to submit to you whether, from your own
observation, there are such resemblances in height, shape, and appear-
ance, amongst passengers in the street, that a casual observer would in
consequence of them be likely to mistake one person for another.
The other remark I would make upon the testimony of the several
witnesses who testify to having seen Dr. Parkman on Friday afternoon,
is, that they do not establish any one theory, showing the movement of
Dr. Parkman from one place to another, at times succeeding each other
at corresponding intervals, unless perhaps it be the testimony of Mr.
Wentworth and Mrs. Greenough. On the contrary, the testimony tends
to prove him to have been at different places, at different times, during
that afternoon; such times and places having no reference to each other.
This is proper evidence to be taken into consideration and weighed
by the jury, and to be compared with the evidence tending to prove
affirmatively that Dr. Parkman entered the Medical College and lost his
life there; for, if that were so, he could not have been abroad afterwards,
and the evidence tending to prove it must be a mistake, whatever be the
origin and cause of such a mistake. But the question, whether he was
so abroad, bears directly upon that proof, and, if established, tends to
control and rebut it. And, therefore, if this proof is of such a character
as to lead you to a belief that Dr. Parkman was abroad after he left the
Medical College, and if, on the evidence, the contrary is not proved
beyond reasonable doubt, for the reasons already given we think the
case of the prosecution must fail, and that the defendant is entitled to
an acquittal.
If the jury should come to the conclusion, that the evidence is not
sufficient to prove that Dr. Parkman was abroad out of the Medical Col-
lege after he entered it, at or shortly before two o'clock, the question
recurs, whether he lost his life there; and, if so, whether it was under
such circumstances as to lead to the belief that it was by the act. of a
third person, thereby establishing the corpus delicti. '
As to the fact and time of his entering the College, perhaps the most
direct evidence is found in the testimony of Dr. Bosworth of Grafton,
who was called late, and who testifies to his having seen Dr. Parkman on
the steps, just entering the door, near two o'clock, on the day named.
Whether he came to his death there by an act of violence, inflicted by
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