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been in and finished his interview with Dr. Webster, and had gone
away.
This, Gentlemen, you perceive, is a matter of the greatest import-
ance, because, if it be true, it has the strongest possible tendency to
show, that although appearances may be now so much against Dr.
Webster, and although this testimony presses so that at times it
might seem impossible to escape, -I say, if this be so, it has the
strongest possible tendency to exculpate Dr. Webster, and fix the
crime somewhere else ; not that Dr. Webster can explain it, but it
shows that there is a theory and a hypothesis which the Government's
testimony does not overcome or read.
Remember that rule which governs circumstantial evidence, which
was so admirably explained to you by my associate, that the Govern-
ment are to prove, first, the facts, as the basis of the conclusion;
secondly, that the facts shall tend to establish, and actually prove, the
proposition which the Government assert; and, thirdly, that they
shall exclude, to a moral certainty, every other reasonable hypothesis.
Now, Gentlemen, if the Government testimony goes only to show
that their testimony will support their theory, but falls short of
excluding any other reasonable hypothesis, and excluding it to a
moral certainty, then, howsoever strong suspicion, or probabilities, or
bias of mind, may be, yet the fact asserted by the Government cannot
be said to be proved beyond reasonable doubt.
Let me call your attention to this question of time; it becomes
of the utmost consequence. Recollect that the assertion of Dr. Web-
ster is, that the time was one and a half o'clock,-not more than
that. Was that the time ?
The Government witnesses, Mrs. Martha Moore, her son George,
Dwight Prouty, Jr., and the Messrs. Fuller, clearly establish that the
time Dr. Parkman was seen going down Fruit-street into North
Grove-street codld not have been earlier than ten minutes before two
o'clock. Dr. Webster says that is twenty minutes after he was at
the Medical College. Where was Dr. Parkman during that twenty
minutes ? Had not he got there, and gone away ?
I will endeavor to satisfy you that he went there, and finished his
business, and had gone. At half past one, Dr. Webster says he was
there. What did Littlefield tell you that he testified on this subject,
on a former occasion ? He fixes it now, approaching two o'clock. He
does not fix it entirely; he leaves it something loose. But he tells
you that on a former occasion he thought and testified that it was
earlier.
Chief Justice Shaw. The only possible way in which that orig.
inal testimony can be used is by- impeaching the witness. It is
against. his present testimony.
Judge Merrick. I will not allude to it, then. Mr. Littlefield fixes
it indefinitely. What he said upon a former occasion has no bear-
ing. Dr. Webster fixes it at half past one o'clock. What was the
hour of the appointment? Here we are not left to the statements of
Dr. Webster, but we have testimony from a witness on the part of the
Government, and from a person who knows something in relation to
it. I refer to the testimony of the servant of Dr. Parkman, Patrick
McGowan. He did not hear all the conversation, but be did hear
enough to know when was the hour of the appointment; and the hour of
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