says, "When persons fight on fair terms, and merely with fists; where life is not likely to be at hazard, and the blows passing between them are not likely to occasion death; if death ensues, it is manslaughter."

These authorities, which I have stated, show the real disdistinction between murder from implied malice, and manslaughter,—the one being, as I have said, the reverse of the other: one being voluntary, deliberate and without provocation; the other being hasty and on provocation, or with a sudden affray. The provocation being in violent assault, when a deadly weapon is used; the provocation being words, when a weapon not deadly is used, and when, they being excited by the combat, one chances to destroy the other. These are the definitions which I bring to your mind.

Professor Webster stands charged with murder and manslaughter. If he committed the murder, it must have been either express or implied malice, or that he killed him in a deliberate and cruel manner, without reasonable provocation, malice being judged of by the manner and the want of provocation, and the provocation being judged of by the weapon. And hence follows the extreme and vital importance, in a case of this kind, of the government's alleging and proving the manner, beyond all reasonable doubt; for it is the manner, the manner of death, the manner in which the homicide is committed, which creates this crime of murder, from which all the distinguishing marks are to be drawn between murder and manslaughter. And therefore it is that I have been over this that we may bear it in mind, and apply it, when we consider this part of the case.

When the government say that Professor Webster killed Dr. Parkman with implied malice, they say he killed him cruelly, deliberately, and without provocation. And this is to be judged of by the manner. When the government says that he committed the act of manslaughter, then it virtually alleges that he killed him not deliberately, but in heat of blood, and with some provocation. And there, gentlemen, as we apprehend, is the definition; and this is a statement of the

rules of law defining the various offenses which are embraced virtually under this indictment.

I come, then, gentlemen, to state what we conceive to be the rules of law applicable to the manner in which the crime shall be charged; that is, the rules of law applicable to the indictment.

In examining, in criminal cases, it is essential that the jury should bear in mind, not only what the rules are defining the offense charged, but they should bear in mind, particularly and strictly, what the various particulars of the offense are which is charged; not only what the offense is, in general, but what the particulars of the offense are.

Gentlemen, it is to be borne in mind-and this is a rule of law which is essential absolutely to the safety of every onethat it is a matter of no consequence how many crimes a man has committed, if he has not committed the particular crime set forth in his indictment. It is a matter of no consequence, if he has committed the crime charged, if he has not committed it by the means charged. This is the position which we take, and it is a rule of law intended for the protection of the citizen; and if it is broken in upon, man has no safety. If a man is to be tried for particulars of offense, or for an offense in which the facts are erroneously set forth, no man can provide for his defense; and therefore it is that no man shall be tried for any offense, unless that offense is fully, substantially, plainly, formally, set forth. Not only must the statement be full, but it must be plain, so that every one shall understand it. Not only must it be substantially, but it must be formally, made. If this rule is departed from, there is no safety for any one.

It is essential that we should examine this indictment, and it is essential that we should understand precisely what it is that the government undertake to charge the defendant with. What are the particulars of the offense which Professor Webster is now set at the bar to answer? These particulars must be fully, plainly, substantially, and formally, set forth; and I must, therefore, ask your attention to the indictment.

This indictment contains four counts; that is, it has set forth, in four distinct forms, the charge, and the government are at liberty to prove any one. First, the allegation is, that the prisoner, Professor Webster, killed Dr. Parkman by striking him with a knife. Secondly, that he killed him by striking him with a hammer. Thirdly, that he killed him by striking him with his fists and his feet, and striking him against the floor. Fourthly, that he killed him in some way, or by some means, instruments, and weapons, to the Grand Jury unknown.

Now, may it please the Court, and gentlemen of the jury, I must ask your attention to the rules of law applicable to this indictment. And I shall, in the first place, ask your attention to the rules of law, as I conceive them to be applicable to the three first counts, which can all be readily considered together.

In an indictment for murder, gentlemen, it is an imperative rule, that the means of death shall be accurately described. And when we say that a thing is to be accurately described, we mean that the government shall prove it as they have described it. They shall state the means of death accurately; that is to say, their proof shall sustain their statement of the means of death.

Now I ask your attention to another position. I understand it to be a well-settled rule of law, that there are certain means by which human nature may be overcome, which have been settled and adjudicated by the law to be totally separate and distinct from each other.

One very large class of means of death is embraced under the head of striking with a weapon. Another class, gentlemen, very distinct-distinct upon authority-is striking a man against an object. That is another class, as I apprehend. And there are various other means of death, well distinguished from each other, such as poisoning, strangling, burning, starving, and others. I put this by way of illustration; and I put the position, that these particular means of death are distinct and separate from each other, to-wit, striking a man with a

weapon, striking a man against an object, poisoning a man, strangling a man, burning him, starving him, drowning him, and the like. They are separate and distinct means of death.

Whichever of these means which I have mentioned-and you will notice I say means-whichever of these means the government see fit to adopt, and charge as the means used, the government is bound to prove, and prove beyond reasonable doubt the particular means. Now, under this class of means, as I call it, producing death by striking, it is usual for the government to allege some particular weapon. But it is not necessary that the particular and express weapon should be proved. Any weapon which will produce death by the means stated, that is to say, by the striking, would answer in proof, instead of what the government charge.

For instance, suppose the government charge that the man produced death by means of striking with a knife, and it turns out that he struck with a hatchet; it is sufficient, because the means, the class, is spoken of; and if it turns out that it is produced by some other weapon, the case is made out. For instance, the government charge Professor Webster with striking with a knife, and it turns out that he actually produced death by a hammer; the case is proved. But, if they charge that he did it in a separate manner, to-wit, by strangling, or by seizing a man, and striking him against a door, and the death is produced, as before, by the blow of the hammer, the indictment would not be sustained. The weapon is of no consequence; but that such a means were used, is of consequence, and must be proved.

I will refer to Kelley's case, Moody's Crown Cases, p. 113; also to Thompson's case, p. 139. In an indictment for murder or manslaughter, when the cause of death is knocking a person down with a stone or other substance, and the mortal wound is from the stone or substance, the charge should be accordingly. A charge that the prisoner struck a mortal blow will not be sufficient. Also, in Thompson's case, the indictment stated that the prisoner assaulted the deceased, and beat him on the head. The evidence was that the prisoner knocked

the deceased down with a blow on the head, and the mortal wound proceeded from the ground. The learned Judge thought the case did not come within the indictment.

I will also refer to another case: to Martin 5, p. 128. In this case, the other two cases which I have cited were confirmed. Here a man was indicted for producing death by striking. The charge was that the prisoner willfully struck him with a hammer.

The kind of instrument is not material. The truth was, there was doubt whether the death was produced by being struck against the 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