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door, or by the hammer. The Judge ruled that there was nothing in
the count about being struck against a door, and unless the Jury were
satisfied that the death was produced by the blow, and not by the
door, the indictment would not be sustained.
Unless the Government prove the means asserted, it don't prove
the indictment. The law, as I understand it, is, that the particular
means stated must be proved to the satisfaction of the Jury.
Now, then, Gentlemen, putting our attention to those first two
counts, the Government alleges that death was produced by striking.
What becomes of their evidence? The Government allege in the
two first counts, and, therefore, the Government must prove, that the
killing, here in this case was by striking with some weapon or other.
In the third count, the Government, if they rely upon it, assert that
the striking was with hands, or fists, or beating against the floor.
And that is precisely what the Government must sustain upon this
count.
I come now to the fourth count. We shall submit here, if it be
regular, in this part of the case, that this count, may it please your
Honors, is totally insufficient, and ought not to be considered by a
Jury ; and that the Government had no right to introduce any proof,
under this count. That is an insufficient count. And in the second
place, if the Government have a right to introduce proof under it,
still, that they have not introduced it at all. This count states, as I
have said, that the death was produced in some way or manner, and
by some means, to the Jurors unknown.
Now, we shall submit that there is no precedent whatever for any
such count; and if there is no precedent for it, the precedents are all
against it. There is no authority for it which we have been able to
find anywhere ; and the authorities are directly against it.
I will cite, may it please your Honors, in the first place, from Hale's
Pleas of the Crown, page 183, first American edition. °' An indict-
ment of murder or manslaughter hath these certainties or requisites
to be added to it, more than other indictments. For it must not be
only felonice, and ascertain the time of the act done, but must also
declare how and with what it was done. Yet, if the party were
killed with another weapon, it maintains the indictment; but if it
were with another kind of death, as poisoning or strangling, it doth
not maintain the indictment upon evidence." And the first volume of
the second part of Coke's Institutes is referred to, page 319. The
same doctrine is laid down in Hawkins' Pleas of the Crown, Book 2d,
sect. 84, chap. 23. The doctrine is laid down in these words : '° If
the killing were with a weapon, the count must show with what
weapon in particular; and yet, if upon the evidence it shall appear
that the killing was not by such weapon, but by some other, the va-
riance is immaterial, and the appellee ought to be convicted, as shall
be shown more at large, under the Chapter of Evidence. And if the
killing were not by a weapon, but by some other means, as by poison-
ing, drowning, suffocating, burning, or the like, the count must set
forth the circumstances of the fact as specially as the nature of it
will admit."
I will refer to East's Pleas of the Crown, chap. 5, sect. 107:
'° It is essentially necessary to set forth, particularly, the manner of
the death, and the means by which it was effected; and an omission
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