ference depends; and however plausible or apparently conclusive the other circumstances may be, the chargo must fail.

Of this character is the defense usually called an alibi; that is, that the accused was elsewhere at the time the offense is alleged to have been committed. If this is true-it being impossible that the accused should be in two places at the same time—it is a fact inconsistent with that sought to be proved, and excludes its possibility.

This is a defense often attempted by contrivance, subornation, and perjury. The proof, therefore, offered to sustain it is to be subjected to a rigid scrutiny, because, without attempting to control or rebut the evidence of facts sustaining the charge, it attempts to prove affirmatively another fact wholly inconsistent with it; and this defense is equally available if satisfactorily established, to avoid the force of positive as of circumstantial evidence. In considering the strength of the evidence necessary to sustain this defense, it is obvious that all testimony tending to show that the accused was in another place at the time of the offense, is in direct conflict with that which tends to prove that he was at the place where the crime was committed, and actually committed it. In this conflict of evidence, whatever tends to support the one tends in the same degree to rebut and overthrow the other; and it is for the jury to decide where the truth lies.

Another rule is, that the circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty, that the accused, and no one else, committed the offense charged. It is not sufficient that they create a probability, though a strong one; and if, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential, therefore, that the circumstances taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis. The evidence must establish the corpus delicti, as it is termed, or the offense committed as charged; and, in case of homicide, must not only prove a death by violence, but must, to a reasonable extent, exclude the hypothesis of suicide, and a death by the act of any other person. This is to be proved beyond reasonable doubt.

Then, what is reasonable doubt? It is a term often used,

probably pretty well understood, but not easily defined. It is not mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they can not say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law, independent of evidence, are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.

In every criminal prosecution, two things must concur: first, a good and sufficient indictment in which the criminal charge is set forth; and secondly, such charge must be established by the legal proof. The sufficiency of the indictment, in substance and form, is a matter of law, upon which, if drawn in question, it is the duty of the court to give an opinion. The general rule is, that no person shall be held to answer to a criminal charge until the same is fully and plainly, substantially and formally, described to him. A good indictment, therefore, is necessary, independent of proof.

This indictment contains four different counts, which are four different modes in which the homicide is alleged to have been committed.

To a person unskilled and unpracticed in legal proceedings, it may seem strange that several modes of death, inconsistent with each other, should be stated in the same document. But it is often necessary; and the reason for it, when explained, will be obvious. The indictment is but the charge or accusation made by the grand jury, with as much certainty and pre cision as the evidence before them will warrant. They may be

well satisfied that the homicide was committed, and yet the evidence before them may leave it somewhat doubtful as to the mode of death; but in order to meet the evidence as it may finally appear, they are very properly allowed to set out the mode in different counts; and then if any one of them is proved, supposing it to be also legally formal, it is sufficient to support the indictment.

Take the instance of a murder at sea; a man is struck down, lies some time on the deck insensible, and in that condition is thrown overboard. The evidence proves the certainity of a homicide by the blow, or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts, charging a death by a blow, and a death by drowning, and perhaps a third alleging a death by the joint result of both causes combined.

It may perhaps be supposed, that, in the long and melancholy history of criminal jurisprudence, a precedent can be found for every possible mode in which a violent death can be caused; and it is safer to follow precedents. It is true that these precedents are numerous and various; but it is not true, that, amidst new discoveries in art and science and the powers of nature, new modes of causing death may not continually occur. The powers of ether and chloroform are of recent discovery. Suppose a person should be forcibly and clandestinely held, and those agents applied to his mouth till insensibility and death ensue. Though no such instance ever occurred before, the guilty agent could not escape.

Of course, I do not mean to intimate that these supposed agencies were used in the present instance, but allude to them simply by way of illustration. But if such or any similar new modes of occasioning death may have been adopted, they are clearly within the law. The rules and principles of the common law, just as when applied to steamboats and locomotives, though these have come into existence long since those principles were established, are broad and expansive enough to embrace all new cases as they arise. If, therefore, a homicide is committed by any mode of death, which, though practiced for the first time, falls within these principles, and it is charged in the indictment with as much precision and certainty as the circumstances of the case will allow, it comes within the scope of the law, and is punishable.

The principle is well stated in East's Pleas of the Crown, c. 5, sec. 13: "The manner of procuring the death of another with

malice is, generally speaking, no otherwise material than as the degree of cruelty or deliberation with which it is accompanied may in conscience enhance the guilt of the perpetrator; with this reservation, however, that 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 willfully and deliberately does any act, which apparently endangers another's life and thereby occasions his death, shall, unless he clearly prove the contrary, be adjudged to kill him of malice prepense." This, the author proceeds to illustrate by a number of remarkable and peculiar cases.

In looking at this indictment, we find that the first count, after the usual preamble, charges an assault and a mortal wound by stabbing with a knife; the second, by a blow on the head with a hammer; and the third, by striking, kicking, beating, and throwing on the ground.

The fourth and last count, which is somewhat new, it will be necessary to examine more particularly. [Here the chief justice read the fourth count.]

The court are all of opinion, after some consideration, that this is a good count in the indictment. From the necessity of the case, we think it must be so, because cases may be imagined where the death is proved, and even where remains of the deceased are discovered and identified, and yet they may afford no certain evidence of the form in which the death was occasioned; and then we think it is proper for the jury to say that it is by means to them unknown.

We have already seen that a death occasioned by grief or terror can not in law be deemed murder. Murder must be committed by an act applied to or affecting the person, either directly, as by inflicting a wound or laying poison, or indirectly, as by exposing the person to a deadly agency or influence, from which death ensues. Here the count charges an assault upon the deceased (a technical term well understood in the law, implying force applied to or directed towards the person of another), in some way and manner, and by some means, instruments, and weapons to the jury unknown; and that the defendant did thereby willfully and maliciously deprive him of life.

The rules of law require the grand jury to state their charge with as much certainty as the circumstances of the case will permit; and if the circumstances will not permit a fuller and more

precise statement of the mode in which the death is occasioned, this count conforms to the rules of law. I am therefore instructed by the court to say, that if you are satisfied upon the evidence that the defendant is guilty of the crime charged, this form of indictment is sufficient to sustain a conviction.

We now come to consider that ground of defense on the part of the defendant which has been denominated, not perhaps with precise legal accuracy, an alibi; that is, that the deceased was seen elsewhere out of the medical college after the time when, by the theory of the proof on the part of the prosecution, he is supposed to have lost his life at the medical college. It is like the case of an alibi in this respect, that it proposes to prove a fact which is repugnant to and inconsistent with the facts constituting the evidence on the other side, so as to control the conclusion, or at least render it doubtful, and thus lay the ground of an acquittal. And the court are of opinion that this proof is material; for, although the time alleged in the indictment is not material, and an act done at another time would sustain it, yet, in point of evidence, it may become material; and in the present case, as all the circumstances shown on the other side, and relied upon as proof, tend to the conclusion that Dr. Parkman was last seen entering the medical college, and that he lost his life therein, if at all, the fact of his being seen elsewhere afterwards would be so inconsistent with that allegation, that, if made out by satisfactory proof, we think it would be conclusive in favor of the defendant.

Both are affirmative facts; and the jury are to decide upon the weight of the evidence. When you are called upon to consider the proof of any particular fact, you will consider the evidence which sustains it in connection with that which makes the other way, and be governed by the weight of proof. Proof which would be quite sufficient to sustain a proposition, if it stood alone, may be encountered by such a mass of opposite proof as to be quite overbalanced by it.

In the ordinary case of an alibi, when a party charged with a crime attempts to prove that he was in another place at the time, all the evidence tending to prove that he committed the offense tends in the same degree to prove that he was at the place when it was committed. If, therefore, the proof of the alibi does not outweigh the proof that he was at the place when the offense was committed, it is not sufficient.

There is one other point remaining to which it is necessary to ask your attention; and that is the evidence of character. There