The trial of Prof. John W. Webster, indicted for the murder of Dr. George Parkman, at the Medical college (North Grove street) on the 23d of November, 1849 : Supreme judicial court, before Chief Justice Shaw, and Associate Justices Wilde, Dewey, and Metcalf. Counsel for the government, Attorney General J.H. Clifford, and George Bemis, esq. Counsel for the defence, Hon. Pliny Merrick, and E.D. Sohier, esq. / Reported for Boston journal.

Webster, John White, 1793-1850

Date:: 1850

Credit: The trial of Prof. John W. Webster, indicted for the murder of Dr. George Parkman, at the Medical college (North Grove street) on the 23d of November, 1849 : Supreme judicial court, before Chief Justice Shaw, and Associate Justices Wilde, Dewey, and Metcalf. Counsel for the government, Attorney General J.H. Clifford, and George Bemis, esq. Counsel for the defence, Hon. Pliny Merrick, and E.D. Sohier, esq. / Reported for Boston journal. Source: Wellcome Collection.

Provider: This material has been provided by the Francis A. Countway Library of Medicine, through the Medical Heritage Library. The original may be consulted at the Francis A. Countway Library of Medicine, Harvard Medical School.

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intention, as much as the overt act. But how dive down into the mind to ascertain it^ slate, or discover the mo- tive? The acts must be taken as fiuits, and then a decision can be arrived at. The Jaw assumes the acts as evidence of the malice, and lays down the circumstances under which, if a homicide is committed, malice shall be implied. It is only by knowing what the acts are, that we can inter what is malice implied. Now,'what are tlie acts which the law defines as malice implied. Malice U implied in any cruel, deliberate act, whether committed without provocation or not—or whether suddenly or otherwise. Therefore, if one person kills another suddenly, in a cruel and delibeiate manner, without, provocation, the act is murder. Manslaughter is not deliberate—not without provocation- but is sudden— occurs ill the heat of biood^vvith provocatiou—or in the heat of combat. And thus is shadowed forth the distinction between murder and manslaughter. A narrow line, it is true, may divide the two, but it is a line that should nev- er be forj^otteu, for on one side is life, on the other death The law lays down that manslaughter is committed in the heat of blood, or with sufficient provocation, or in the heat ot combar. What is suthcient provocation ? In de- termining! this question, the law always regards the wea pen or instrument with which the offence is committed. For exaniple: air offence committed with a caue might be held excusable in the eye of the law, while if the same offence had been committed with a heavy bar of iron, it might subject the party to severe punishment. Wea- pons are divided into two classes, those which are deadly and those which are not so. What is a sufficient provoca- tion to reduce murder to manslaughter when a deadly weapon is used—what when a weapon not deadly is used? An assault upon the person, if suddenly resented, and death ensues, reduces murder to manslaughter. [And here Mr. ijohier read from the authorities some oases in point. A man was riding along the road—a person came along and whipped nis horse out oi' the pathway. The first party got out of his carriage, assault- ed the man, and killed him upon the spot. This was held to be manslaughter. Three soldiers were drinking in a tavern, wtieu a quarrel arose between the landlord and one of the soldiers about the reckoning Alter some trouble, the soldier was thrust out of the house, an act which the landlord had a perfect rigiit to do. The soldier immediately drew his sword and killed the land- lord upon the spot But as the assault upon the soldier was violent the act was held to be manslaughter.] What is a sufficient provocation to reduce a homioidejto manslaughter, when tbe weapon is not of a deadly char- acter? Neither words of reproach, nor contemptuous and insulting language, nor distress of property or goods, constitute a sufficient provocation; and this was when the weapon was of a deadly nature. But observe the distinction. Iftheactwas committed inconsequence of the use of such language, with a weapon not deadly, as with the list, then the provocation the law hel(i sul- cient. and the murder would be reduced tomanslaugh ter. If woids of reproach pass between two men, and the parties proceed to biows, and no undue advantage is taken by either, and death ensues, the act becomes rnanslauiili- ter; no matter whether the original cause of the quarrel was real or imaginary. A. uses provoking language towards B.; a fight ensues, and B. kills A. Ttie act is manslaughter, provided they commenced the tight on equal terms—i.ut it must be on equal terms. Prof. Webster stands charged witB the crime of mur- der. The malice must be express or implied. It is im plied in the coinnii.-sion of an offence in a cruel and de- liberate mannei, and without provocation. Or Prof. Webster stands cha.'-gi'd with manslaughter, an act sud- den and without pruvoiiation. fhe government is bound to prove the manner in '.vhichthe murder was committed When the iudictmeut charges he commined murder, it charges a cruel and deliberate act. if ii charges man- slaughter, then it charges an act with sufficient provoca- tion. Hence the great importance that the government should prove the manner in which the murder was done. I come now to state what are the rules of law applica- ble to the indictment. It is of i:o manner of consequence how ma>iy crimes a man ina> have couiiuitted. if they are not charged against him in the indictment I'he particu lars of tlie oJlence are of importance, and must be stt forth. Tlius it was that our bill of rights provides tl/at the particulars ol an olleuce, for the commission of which an individual is iydic'efi shall be clearly stated. If this was not so, wiio would be »afe? Now, what are the par ticulars ot the of fence of which Prof. Webster stands charged ? The iudictmeut contains four counts. The lirst charges that the prisoner kilhd Dr George Parkmun by striking him with a knife; the secoi d, that he killed him by strik- ing him with a hammer; the third, that he killed liim by striking him with his lists a»d leet, and by throwing him down upou the floor; the fourth that he killed him in some way or manner, and by some weapon or instrument to the Grand Jury unknown. I will make the applica- tion of the rules of law to the first three counts, as they can well be considered together. In an indictment tor murder, it is imperative that the prosecution should accurately describe the means of death, and then prove, beyond a doubt, those means. It is a rule of law to constitute distinct and different classes of means. One class is striking; another class is striking a person down upon or against a floor or wall. Theie are other classes, such as poisioning, strangling, &c. Strik- ing forms a distinct and separate class ot means. Which- ever means the government adopts and charges, these means the government is bound to prove beyond a reason- able doubt. 1 am free to say that the government is not bound to prove the weapon; any weapon sufficient to cause death, would answer the charge—a knife^ sword, or hatchet, it would be all the same. If Prof. Webster is charged with the murder of Dr. Parkman with a knife, and it was proved he killed him with a hatchet, I would not argue tor a moment. The means must be proved— therefore, if a inau was charged with committing murder by striking, and strangling should be proved, the indict- ment must fall through. [Mr. Sohier again read from the authorities upon this point. A case was cited in which a person had been in- dicted for murder by striking with a stone, death en- suing. But it was proved that death resulted from a fall upon a stone, and the detendant was acquitted. So again in another case an individual was charged with producing death by striking with a hammer. But it was proved that death resulted from a fall against a wall, and the defendant was acquitted. These authorities were deemed sufficient by the Counsel to illustrate his position.] The government have charged in the first two counts that the murder was committed with a knife and ham- mer, and the government is bound to prove it. I contend that the fourth count is insufficient, and the government has no right to introduce proof under it, and that no proof has been introduced. The authorities I say, the weight of authorities, are against the introduction of a count of that nature. The authorities all declare that the indictment, or its various count shall set forth the man- ner of the death. [Several authorities were quoted by the Counsel to sustain this position.] This indictment is clear- ly distinguished from an ndictment in which the party indicted was charged in one count with striking with a hatchet, and in another with striking and cutting the deceased with a weapon, to the Jurors unknown. In this count the means were described, which constitutes a wide difference between it and the fourth count of the indictment against Prof. Webster. This mode of alleging in an indictment, if permitted, would give rise to great confusion, and through it an in- definite number of issues might be tried. How, under .-uch circumstances, could a party prepare for his defence? I submit, therefore, that the lourth count in the indict- ment is imperfect and insufficient. The first two counts allege a death by striking; the third alleges death by strik- ing vvith hands and feet, and by striking deceased against the floor. The question now arises: has the government proved, beyond a reasouable doubt, that Prof. Webster killed George Parkman by the means alleged? If the proof fails then the government fails; if theie is a doubt, gentlemen of the jury, left in your minds, as to the means by which the murder was committed, then the defendant is entitled to an acquittal. If you believe that Prof Web- ster killed George Parkman, and still have a doubt as to the means he employed, you must acquit. This holding ot the government to a strict accounf is no hardship to it, when it is con.sidered that it has the power to allege as many counts as it please against the prisoner. To convict under the first two counts, you must be sat- isfied that the murder was done by striking—under the third count that it was done by striking the deceased against the floor. But under the third count I submit there is not a pai:ticle of evidence, though under the oth- er two counts the government has submitted what it is plea.serl to call evidence sufficient to convict The gov- ernm .it, I repeat, must prove that Prof. Webster killed Dr. P'kman, and prove likewise that he did it with a deadly ','. eapoti, and all this beyond a reasonable doubt. Aii J ;.■ I has gone abroad iu the community, that this matt.-i f a reasonable doubt is a gratuity to a prisoner— a priv 1;, „'e granted to him by the law—a means oi escape for a .ast number of villains. But this i; a ■ ,-.£ mistake. Althi,'i.(li a guilty party might sometimes c.-oape, yet the weil kiiown maxim ot the law is, that it is betler for many guilty to escape than that one iunoceur, man should suf- fer. But this reasonable doubt is uo privilege; the pris- oner returns an adequate compensation lor what is grant- ed—for what, indeed, is his right. Ail systems of crimi- nal laws are imperfect, and this m;ifter of a reasonable doubt has been engrafted, a- a check upon our system.— A man is taken from Ids family, charged with the com- mission of some heinous offence, and is tlieu told to pre- pare for his defence. In the meanwhile, ex pane, proceed- ings are going on against him—hearings btloie a coro- ner's jury, and before a grand jury, at none of which he is present. He is then brought into Court and put upon his trial, and his mouth sealed up, or if he speaks, no credit is to be allowed to what he says. Witnesses are let loo.se against liim—and who are they ? Some are malicious persons, who wish to swear ofl'an old grudge; some are inteiested parties—iuteresied for re- wards or for property ; some dtsire to swear off guilt from themselves; and some, perhaps, act from worse motives.

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