The Parkman murder : trial of Prof. John W. Webster, for the murder of Dr. George Parkman, November 23, 1849 : before the Supreme Judicial Court, in the City of Boston with numerious accurate illustrations.

John White Webster

Date:: 1850

Credit: The Parkman murder : trial of Prof. John W. Webster, for the murder of Dr. George Parkman, November 23, 1849 : before the Supreme Judicial Court, in the City of Boston with numerious accurate illustrations. 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.

46/128 (page 38)

$The law urgeJ that when a homicide was com- mitted in certain circumstances, then malice should be implied from the act. If we would know wliat implied malice was, we must inquire what the acts ■were from which it was to be interred. Malice was implied, by law, from any deliberate cruel act, committed one against another. There- fore when one person killed another su jdenly, with- out any. or wiiUciiit cui.siueinble provocation, ma- lice was to be imiiUtid. Tliat was the definition. Having stated this, they saw shadowed out before them the diflerence between murder and man- slaughter. Manslaughter was not deliberate—was not a cruel act, but was done in the heat of cruel blood. Whenever death ensued upon sudden pas- sion, with considerable provocation, that was man- slaughter. This line might me an exceedingly narrow one, but one that was never to be lost sight of; for on ohe side of it was life and on the other death. And they were to remember that the one act was deli- berate and without provocation, while the other was in the heat of blood and with provocation. The law stated that manslaughter was upon suffi- cient provocation or sudden combat. What then was sufficient provocation.'' To ascertain this we must go to books, where it was well defined. To ascertain this the law always regarded the instru- ment. The provocation that would excuse a blow from a stick, would not excuse it with a deadly weapon. The weapons were divided into two sorts, those that were deadly and those that were not. What was a reasonable provocation for the use of a dangerous weapon? Here he read from a book, stating that any assault made immediately, such as pulling the nose, &c., if resented immediately, with a deadly weapon, would reduce it to manslaugliter. He read a case where a person was riding in the road, and was driven out of it, and the person alight- ed and killed the assailant. This was held to be manslaughter. Three soldiers were drinking. An altercation ensued. The deceased pushed a soldier out of the house, and the soldier stabbed him. This was judged manslaughter. The next question was, what was considered a sufficient provocation for a homicide with some weapon not likely to produce deatlii' Words of re- proach were not sufficient, nor insulting words or actions. This governed all cases where deadly wea- pons were used; but when done with weapons not deadly, this would reduce it to manslaughter. The next question was, what was meant by sudr den combat.' [He read from the same book to show tliat where, upon words of reproach or other causes a combat commenced, and death ensued, this Avas held manslaughter, even though produced by adead- ^ ly weapgn.] These causes and authorities showed tlie real difference between murder upon implied maliCe and manslaugliter. Professor Webster stood charged with murder, and virtually also with man- slaughter. If he committed manslaughter it must have been upon sufficient provocation. Hence the great importance of the government proving the manner; for it was the manner that made the dis tiiiction between murder and manslaughter. When the government say that Prof. Webster killed Dr Parkman with malice, they say it was done deliberately. And when the government say he cpmmitted manslaughter, they say he did it with sufficient provocation. He proceeded then to state the rules of the law applicable to the indictment. It Wii ^essential that the Jury should bear in mind what v ere the various particulars of the otfence. It was a matter of no consequence how many crimes a man may liave committed, if he had not committed the crime charged upon him. If this rule was to be broken down, who would be safe.' Therefore it was, that we had provided in the bill of rights, that no man should be tried for any ol- fence, unless the offence was clearly set forth. It ■was essential, then, that we should examine this in- dictment. Wliat, then, were the particulars of the offence charged against Prof. Websteri' He then caTIetl attention to the mdTctment. (Hers- he proceeded to enumerate the several counts ia the indictment.) He must ask their attention to the rules of law applicable to the three first counts. In an indict- ment for murder it was- imperative that the means- of death should be accurately described, and then proof must sustain it. He understood that there were certain means of death totally separate and distinct from each other. A large class was strik- ing; another class was striking a man against an object. And there were various others, such as poisoning, strangling, burning, stabbing, &c. And these were distinct and separate from each other. Now which of these measures the govern- ment see fit to adopt and charge, the government was bound to prove. Now under the class of strik- ing, it was necessary for the government to mention some manner; but it was not necessary to prove th^t the striking was with the same instrument al- leged. But the means must be proved. If a man. was charged with producing death by strikinOj and it was proved that it was done by strangling, the indictment was not sustained. To sustain this, he referred to authorities. In an indictment for murder or manslaughter, where the death was caused by a man striking against a stoee,. the charge of producing death by striking with a stone was not sustained by proving that the deatb was produced by falling on a stone. In another case, it was charged as being produced by striking with a hammer, and it was proved to have been produced by falling against a door, and tiie defen- dant was acquitted. Now the government had alleged the de-ath by stKiking, in the two first connts, and therefore they must prove it. In the third count, they must prove that the death was produced by striking with the feet and hands. The fourtli count they should allege to be entirely insufficient; and the government had no right to in- troduce testimony under this count; and if they had^ that they had not sustained it. There was no au- thority for introducing such a count. Here he cited authorities. An indictment for murder or mann- laughter must have certainty annexed to it more than anything else. ■ Not only the time but the man- ner must be alleged. If he killed another with a weapon, the govern- ment must allege the vreapon; but if another wea- pon was proved, it was sufficient. But if the killing was by other means, the indictment could not be sustained. Another authority stated tfeat it was ne- cessary to set forth the manner 'of the death with distinctness and particularity, and to prove it. The count under consideration was clearly distin- guishable from Colt's case, where one of the counts charged that death was produced by a hatchet, and another count, by striking and cutting by some instrument unknown. This mode of alleging in tlie indictment was clearly inadmissable. Tliere might be an indefinite number of crimes tried. The last count was clearly inadmissible. The question then ^vas—Has the Government proved that Prof Web- ster killed George Parkman by striking him with a weapon? And if the jnry»were satisfied that the killing was not produced in the manner stated,—if they were left in donbt on that point, there was an end to the case, even tliough they should believe that Profes- sor Webster destroyed Dr George Parkman in some other way. The government had the privilege of alleging as many causes of death as they pleased; but they were held up strictly to the allegations. In regard to the tliird count, there was not a par- ticle of evidence. But on the two first counts, the government had brought up something which they would attempt to show was insufficient. But they were to prove that Prof Webster destroyed George Parkman by striking. He was perfectly aware that this reason.\blt3 DOUBT was considered as a pi ivii.egi'. to the.de- fendant. But this was not a privilege accorded to him. All criminal systems were defective; and this$