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210 TRIAL OF JOHN W., WEBSTER.
cut of a knife. This testimony I have had occasion already, in the
early part of my argument, fully to examine and consider. And I
trust that you were abundantly convinced, that it failed altogether to
establish either the one or the other of these facts,-the fracture of
the skull, or the stab in the side. I am sure I need not, and I will not,
renew the discussion. But I will adjure you not to presume that either
of these weapons was the instrument, of death, because it is not pos-
sible to discover what other means were employed, if these were not.
It is a fact for the Government to prove, and to prove beyond reason-
able doubt, because they have chosen distinctly to assert a special
"manner of death." It does not devolve upon the prisoner to show
that the homicide was not according to those averments, nor to supply
suggestions or conjectures how otherwise it might have been. Yet it
would not be difficult to point out many methods, more or less prob-
able, to which resort might have been had. Remember that the prose-
cutors insist that the homicide was upon premeditation. If it was so,
the means were prepared in advance. -It was no chance matter, upon
such a supposition, that he seized upon the knife or uplifted the ham-
mer. But these were dangerous weapons, which a cool calculator might
think too likely to leave the marks of their violence behind them,-
to scatter the blood or the brains upon the floor or the wall, there to
remain the silent witnesses of death produced by violence. Did not
the perpetrator rather strangle or suffocate his victim? Was not his
breath instantly stopped by the prepared lasso? Was it impossible that
he was seized, and held while liquid poison was poured down his throat?
Might not advantage have been taken of his known rapid pace, by
providing secret means to insure his fall, as he rushed down the steps?
Are these, or are all of these, unreasonable suggestions of possible or
probable occurrences? We are in the broad field of conjecture; not
more so, however, in starting these suggestions, than is the Govern-
ment in its hints and pretensions concerning the knife and the ham-
mer. It is all uncertainty. No rational man, as it seems to me, can
honestly affirm that he is convinced beyond reasonable doubt, that any
particular means, or any particular instrument, was the cause of death.
He may believe in the homicide, but he must confess his ignorance of
its immediate cause.
This difficulty and this objection are felt and appreciated not less by
the prosecutors, than by us in the defence; and therefore it was that you
were told by the Attorney General in his opening, that, if he were to
rely upon his own judgment alone, he would prefer to rest the issue
exclusively upon the fourth count,-that broad, all-embracing, and com-
prehensive declaration, that the homicide occurred in some way unknown.
This would, indeed, relieve him from the legal necessity of proving more
special and particular averments; but it is no poor comment in advance
upon the insufficiency of the evidence in his possession to establish satis-
factorily the "manner of the death." I do not doubt his sincerity, when
he told you that he would regard a decison, that a conviction could not
be had under such a declaration, as a reproach to the law. It might, or
might not, be a reproach. I shall not stop to inquire, whether it would
be the one or the other; for it is not the question before you. We are
not to determine if the rule be wise; but it is our duty to see if it is an
established principle of the criminal code. If it is, we are all bound to
observe it. They must submit to it on the one side, and we may take
advantage of it on the other. If the law requires that certain specified
forms shall be complied with, those forms must be observed, whatever
may be the consequences. And which. I pray you, would be the deepest
reproach to the law, to permit a guilty man to escape by a rigid and
honest adherence to one of its own positive and absolute, though tech-
nical rules, or to permit courts and jurors to break through its salutary
restraints, legislate at their pleasure at the hazard of a mans' life, in an
isolated case, and enact a new statute, during the progress of a capital
trial, in order to insure a conviction as its result?
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