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51
Having disposed of the matter of prejudice, he proceeded to give an outline
of the coarse of the defence,
First, the rules of law would be presented. econd, the indictment would be
examined. Third, the nature
of the evidence for the prosecution would be considered and sifted. Fourth
its complete insufficiency to
make out any criminal charga when tegarded under the principles of law
applicable to all such cases. Fifth,
the heads of the evidence which it w as expected to produce for the defence.
First, the indictment charged the crime of murder, a charge which almost
always also included that of
manslaughter, for it generally left the nature of the act of homicide an
open question. Therefore when a
man was charged with murder, he was also in fact charged with the offence
of manslaughter, and, though
acquitted of the former, might be convicted of the latter, while being
tried for the former. Under an in-
dictment of murder, therefore, it became necessary to examine carefully the
law in relation to murder and
manslaughter and the dividing line between them. Murder was killing with
malice prepense, or afore-
thought, expressed or implied by law. Express malice might be found in
lying in wait to kill, or threats,
or conoerted schemes to do great bodily harm to the party killed. Implied
malice under cerain circum-
stances of using a weapon, without previous threats, or lying in wait &c.,
was also distinguishable from
that degree of homicide committed under the impulse of the heat of blood,
produced by great and sudden
provocation. The line was often a very nice one, and indeed sometimes faded
away into shadows. But it
was important to keep the line steadily in view, fr death was on one side
of it. It was not to be lost sight
of in any step of the present trial. The idea of sudden and great
provocation was to be kept constantly in
view, carrying with it, to be sure, the qualification that the provocation
must be a reasonable one-one cal-
eulaed to produce heat of blood.
According to East, an assault without ,previous malice or under
circumstances of great indignity, as pul-
ling the nose or the like, may be manslaughter, although a deadly weapon be
used. Such was the case of
Lemuel, who suddenly illed a man who struck his horse, and drove him from
his path; also the case of
por, the soldier, who, after something of a flgbt in a tavern, had been
violently put out after he bad
"Whis reckoning. He instantly returned and killed one of the party with his
sword. In these oases there
was that sudden and violent provocation which reduced the killing to
manslaughter, although weapons were
used.
Words of reproach, or contemptuous sentences, would not be such provocation
as would reduce a homi-
cide to manslaughter, if a deadly weapon was used; but, if under such
circumstances, death by misadvan-
tage followed from a rst blow or throw, then it would be manslaughter. The
same was the case where there
was a sudden combat; or where, in the course of a combat, a weapon should
be drawn and used. In the
present case, if it shold appear tat Web-terkilled Dr. Parman, the further
question would certainly arise,
under what circumstances it was done? Whether with malice prepense.orupon
provocation. In theabsence
of all testimony on this point, the question would naturally, irresistibly
arise. But before coming to that
question, it must be made to apear that Dr. Parkmau was killed in one of
the modes alleged in the indict-
ment. ne of the four counts certainly could not be legally made out. The
first sets forth the killing to have
been done by a knife ; the second by a hammer; and the third with blows,
kicks, and throwing down. These
allegations, as they all embraced the act of striing, were probably
sufficiently escriptive to meet the law.
But the fourth count charged the killing to lie by means and in a manner
unknown, and was contrary to the
principle of the law that requires offences to be actually described.
First, then, the manner must be set out and be proved. In the present case
the striking must be proved.
The use of a knife, or hammer, or fists, or feet, or throwing down must be
proved beyond a reasonable
doubt. The jury must be able o say it was done inane of the modes, and not
in either of the others. 'If
the jury were not clear in which of the modes, they could render no verdict
against the defendant. Were
the jury sure from the evidence, that the killing was done with a knife? or
with a hammer, or in the third
mode of blows with the fists or eet 1 If not, bow could they return a
verdict under either count. Even if
-they should believe that the fatal deed was committed by Dr. Webster, they
must be made judicially cer-
tain that it was done in one of the modes alleged in the first three
counts. If done by poisoning, or strang-
ling, then it was not done by either of the modes charged, and he could not
be convicted at all. The mode
was a fact to be proved as clearly as the homicide itself. Nothing less
would answer. The government
had put it there, and were bound by it. They could not go beyond it. The
very fact that the government
had charged the killing in so many ways proved almost that they did not
expect to prove either. The
fourth count in which no mode was alleged was entirely without authority in
law or precedent and the go-
vernment had no right to insert it ; and still less to ask a verdict upon
it, in case they failed to establish
either of the other counts.
The nearest case was that of Holt, in which the weapon was not stated, but
the indictment contained an
allegation of striking, which was a description of the mode. It therefore
differed from the count under
consideration, which set forth neither means nor manner of the killing. The
jury were then thrown back
on the three irst counts, and one or the other must be proved. He would
then name the first and second,
alleging killing with a nife'or hammer. Did the evidence prove beyond a
reasonable doubt that the kill-
ing was by striking with a knife or hammer. As to the third, it would not
be pretended there was any
evidence of blows with fists, or the feet, or throwing down. Then the first
two counts alone remained t9 be
considered, viz : striking with weapons. The government had produced
something which they regarded as
evidence on this point. But did it raise a conclusion beyond all reasonable
doubt. Was there a mind that
could say the evidence reached anything like that point. Where would they
find the evidence'of the use
of knife, or hammer, that comes up to that mark.
He would have them look at this matter of reasonable doubt. Who is to be
proved against beyond that
point ? By a man who comes to speak a word in his own defence The
government shut him up, proclaims
his guilt by a coroner's verdict and then by the indictment of the grand
jury, and silence him. Then he
may be attacked by revengeful witnesses, or witnesseshaving their eyes upon
some great reward; or by wit-
nesses who are mistaken as to the identity of the prisoner, or the body of
the party supposed to e killed.-
To all this he can offer nothing but his previous character. And the
government itself may prove, and gen-
erally does prove, that if committed at all by the defendant, it was done
.when no eye witnessed the deed.-
Here opens the hld of circumstantial evidence. They prouce no one who saw
the deed committed. They
do not allow the defendant to purge himself. They do not profess to present
a certainty. They present a
series of circumstances, from which they ask for a conclusion, that the
murder was committed, and by the
farty charged. The danger of error is multiplied on that of positive proof
in proportion to the number of
acts relied on. Each fact or circumstance is a distinct issue, and there
may be error in'the evidence as to
,each. And then opens the ground for the grand, error, incoming to an
incorrect conclusion upon the whole
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