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which facts, when proved, taken in connection with such of the Gov.
ernment's facts as you shall conceive to be entitled to credit - on
which you can rely with any confidence-will constitute the entire
mass of evidence on which you will eventuallv have to pass.
First, then. with regard to the rules of faw which describe the
offence charged. The offence charged here, Gentlemen, generally, is
murder. That is the offence charged in the indictment, the murder
of George Parkman. We then wish to inquire and ascertain what
are the rules describing this offence, so that we may know when it has
been proved, and when it is left in doubt.
Murder is a division of homicide; the word homicide extending to
every possible killing of a human being. If a man is killed under any
circumstances, anywhere, or by anybody, the word homicide covers
that act. A homicide must, necessarilv, at once be divided into two
great divisions : first, that which is criminal, and, therefore, punisha-
ble; secondly, that which is not criminal, and, therefore, which is not
punishable by the law.
Now, criminal homicide, which is the only species of homicide with
which we have anything to do, is divided into two parts-into two
divisions : first, murder, which is punished capitally, by the death of
the offender; secondly, manslaughter, which is not punished capital-
ly, but which is punished ignominiously. These two divisions con-
stitute homicide.
Now, inasmuch as this indictment charges Professor Webster with
murder, and inasmuch as it is always competent for a Jury to acquit
of murder and convict of manslaughter, or acquit of both, every man
who is indicted for murder is in the same position as if he were jn-
dicted twice; first, for one offence, and then for the other.
The first question is, What is murder, taking it by itself? The
second question, then, will be, What is manslaughter, taking that, too,
by itself? Murder is defined to be " The killing of any person with
malice prepense or aforethought, either expressed or implied by law."
Two things are necessary to constitute murder : first, the killing ;
secondly, malice. And this definition is precisely no definition, be-
cause it gives you no idea of what is intended by the word murder,
unless you have an accurate and well-defined idea what the meaning
of the word chalice is, as used in this connection.
Malice is divided, by all criminal writers, into two counts: first,
what is called express malice; and, secondly, malice which is im-
plied. Those are the definitions of the word malice. Express mal-
ice ! When we use that term, we mean what is always meant by mal-
ice in its common out-door use. It means a wicked disposition and
perverse mind, which does induce a man, or may induce him, to com-
mit a certain act.
'° Express malice," say the books, '° is when one person kills another
with a sedate, deliberate mind, and well-formed design; such formed
design being evidenced by external circumstances, discovering the
inward intention ; as, lying in wait, antecedent menaces, former
grudges, and concerted schemes to do the party some bodily harm."
This is easily understood, without being dwelt upon at the bar.
W e come next to what is meant by what is called implied malice.
And here the definition is not so easy. Implied malice is where the
malice is implied by the law. Now, it is a theory of the law, that it pun-
ishes not so much the overt act, as it does the' wicked and depraved
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