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formally set out in some charge. But whatever may be the form,
the offence shall be fully and formally, clearly and substantially, set
forth. It therefore often becomes necessary to set forth several counts.
When a person, who does not know these rules, sees these counts,
he is very apt to say that these are inconsistent. But we are to
consider that a party who draws the indictment often does not know
which charge will be proved ; but, in order to meet the evidence,
he may set them forth in as many counts as he pleases, and aver
as many modes of death as he chooses, and if any one of them is
proved, that is all that is necessary to sustain the indictment. Satis-
factory proof of any one mode of death is sufficient.
It is said, that. there are various forms of indictment adapted to
many of the modes in which death may be inflicted. But is not
science continually discovering new modes ? Suppose, in the chem-
ical laboratory, a person might be held fast, while chloroform was
placed over his mouth, until he dies. Suppose such a case has never
before occurred. Shall such a party escape on that account? I
think not. And, therefore, as in cases of new modes of locomo-
tion, the common law has a rule for all new cases. Not that it
foresaw that a steamboat would be built, or that railroads would
intersect the country ; yet, its general principles embrace all these
cases. And, therefore, whatever be the form of death, still the charge
in the indictment, if it presents the mode of death in as special a
manner as the circumstances of the case will allow, is sufficient.
The same authority that has been cited I will read a passage from.
(East's Crown Law, chap. 5, sect. 13.) "The manner of procuring
the death of another, with malice, is, generally speaking, no other-
wise material than as the degree of cruelty or deliberation with
which it is accompanied may in conscience enhanqe the guilt of the
perpetrator; with this reservation, however, that the malice must be
of corporal damage to the party: And, therefore, working upon the
fancy of another, or treating him harshly or unkindly, by which he
dies of fear or grief, is not such a killing as the law takes notice of.
But he who wilfully and deliberately does any act which apparently
endangers another's life, and thereby occasions his death, shall, unless
he be clearly proved the contrary, be adjudged to kill him of malice
prepense." The mode is not material.
How are we to consider this indictment? The first count contains
the charge of death by striking with a hammer; the second, by some
thing nearly like it; the third, by throwing upon the floor, and beating
with the hands and feet, and thereby producing death ; and the last is
the count which I shall presently read.
Now, in a case of this description, if the parties prove, to your satis-
faction, that Dr. Parkman lost his life by any means suggested, of
which there has been proof offered, perhaps the reasonable probability
would be, independent of any direct proof about the body, that it
was done by a blow, or a stab in the side, or something similar; and,
therefore, if such fact were proved, it might be considered sufficient. It
may be impossible to determine in which of these modes death was
produced; yet, if it was made in some of the modes suggested, then
it will warrant the finding against the defendant.
The last count is-as follows:-
11 And the Jurors aforesaid, upon their oaths aforesaid, do further
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