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196 TRIAL OF JOHN ZV. WEBSTER.
indications of a fracture, though he did not hesitate to say, in answer
to the inquiry of the Chief Justice, that though it was probable, or
rather that there was an appearance that the fracture might have
occurred before the bone was subjected to heat, there was nothing which
would enable him decisively to determine whether it occurred before
or after death„ And he would not even affirm, that it might not have
been after calcination. Dr. Holmes, one of the Professors in the Univer-
sity, who is equally competent with Dr. Wyman upon this subject,
expressed himself very clearly of the opinion, that no satisfactory conclu-
sion could be formed, from the appearance of the bone, whether the
'fracture was before or after it was subjected to fire. Upon such a
state of the evidence, it would be absurd to pretend, that the fracture
of this particular part of the bone of the skull is proved, beyond all
reasonable doubt, to have been the cause of the death.
Next, as to the perforation in. the side. It appears, from the testi-
mony of Mr. Eaton and Mr. Fuller, that it was discovered by them
almost immediately after the thorax was taken from the tea-chest.
They may perhaps be mistaken in this; but I shall not stop to ques-
tion their accuracy. The more material question is, How was it made,
and how came it there? Dr. Woodbridge Strong, who examined the
body several days after it was discovered, and after the medical exami-
nation made for the coroner's jury was over, testifies that the hole was
a clean cut, apparently made with a knife; and, in his judgment, the
blow must have been inflicted while the party was alive. But he is
alone in this opinion. You have, on the contrary, the deliberate judg-
ment of three intelligent and scientific medical gentlemen,-Drs. Lewis,
Gay, and Stone,-to whom were specially assigned, by the coroner, the
duty of making a full and complete examination; and you have been
informed by them, with what vigilance, care, and accuracy, that duty
was discharged. They made their examination for the express purpose
of discovering, if possible, what was the cause of the death, and by
what means it had been occasioned; and they made it at a moment
when every circumstance, which could have any tendency to develop
the truth, was watched with the utmost intensity. They saw this per-
foration in the side; and they carefully examined it. All of them tell
you, unhesitatingly and in strong terms, that there was no knife-cut,
or any cut, there; that the flesh was soft, and the opening ragged and
irregular, such as might easily have been made by a stick, or by the
finger of one's hand; that there was no indication in its appearance,
either on the external or internal parts of the side, that the hole was
made with a sharp or cutting instrument, or that any wound had been
inflicted there upon the living man.
These opinions of the skilful and disinterested men to whom way
assigned the special duty of the medical examination, ought to be
held as entirely conclusive. But, even if it be not so, the disagreement
between them and Dr. Strong is equally decisive upon a question
where proof is to be made beyond all reasonable doubt. Whatever may
be your conjectures or suspicions, it is impossible that, in this contra-
dictory state of the evidence, you should adopt a mere controverted,
contradicted, and disputed opinion, as an absolute verity.
It is plain that you cannot attribute the death of Dr. Parkman to
either of these causes. Can you find anywhere, or in all the evidence,
the indubitable fact that he was killed by any human agent? Remember
that it is not for the prisoner to discover or explain by what means
Dr. Parkman lost his life; but it is for the Government to show, affirma-
tively and positively, that it was taken by the violent or unlawful
agency of some other human being. The blows, the wounds, the mutila-
tion; the evident efforts for the destruction and the annihilation of the
body, do not show, nor have they any tendency to show, how the life
was taken. All these appearances might have been, and probably were.
produced upon the body after the individual was dead. Injuries amply
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