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illustrated by the opening Counsel-between express malice and im-
plied malice, I do not intend to go over, because I entirely concur
in every proposition stated to you on that subject, in regard to express
malice. If you find there was anything of premeditation with regard
to this prisoner, that ends the inquiry of this case. That fixes it, by
all the authorities, upon the very ground taken by the prisoner's
Counsel, to be a case of murder. But, if you should not be satisfied
of that, still, the law presumes, in the absence of any controlling
proof, that there did exist the other species of malice, namely, implied
malice.
Therefore, it is quite immaterial, in sustaining this charge against
the prisoner, whether the Jury are satisfied of any proofs of the pre-
meditation or not, unless they are, on the other side, satisfied upon the
proof, that, when those two men came together, there was not merely
exasperating, irritating and provoking language, but that there was,
on the part of George Parkman, a provoking blow, which led to
another from the prisoner, that was fatal to his adversary. Because,
upon this matter of implied malice, the provocation which the law
recognizes cannot be a provocation of language, no matter how exas-
perating, how irritating, it may be. Therefore, if exasperating
words were used, and a sudden blow was given by the prisoner with
an instrument likely to cause death, then, Gentlemen, he is as much
guilty of murder as if he had prepared and planned it for months
before, and beguiled the party to the place, and there carried into
effect his previous premeditated purpose. Hence, we take no excep-
tion to all that matter of law put into the case; and I only refer to it
now, to say that you must have felt; as I did, a painful disappoint-
ment, when this case was opened by the defendant's Counsel-that,
while we were anxiously looking for an explanation of facts, we had
the extraordinary spectacle of the Counsel for the prisoner devoting
two hours and five minutes to the discussion of the law, and ten
minutes to the presentation of the facts.
All the nice subtleties and refinements of the law of homicide,
about which there is no controversy, and in which I agree fully and
entirely with the learned Counsel, were gone into with a degree of
clearness and ability which marked the accomplished lawyer, and
were presented for your consideration to avoid what seemed to me
the unfortunate and meagre array of his store of facts being exposed
to the Jury. But, Gentlemen, that exposition had to come. I have
already adverted to the classes of facts upon which he relied.
Exception has been taken, Gentlemen, to this indictment; or, rather,
perhaps I ought not to say that. I do not know as exception is
taken to the indictment. But, although it is said that the Govern-
ment may charge, in the various modes in which they have charged,
in the first three counts, a homicide committed by the prisoner,-yet,
they are bound to prove, in this case, to the entire satisfaction of the
Jury, that the homicide was committed in one or the other of those
modes ; and that the fourth count of this indictment, in which the
Grand Jury have charged upon this prisoner, that. by some means,
instruments and weapons, to them unknown, he did commit murder,
is not such a count as can be sustained in a Court of Law.
Gentlemen, if that were so, we ought to have been saved the long
and anxious labor of this trial. If that were so, and the law were
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