Michael P. Mills
Excerpted from: Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Mississippi Law Journal 153 (Fall 2001) (481 Footnotes)
The most fascinating published case of the Mississippi High Court of Errors and Appeals is Josephine v. State, 39 Miss. 613 (1860). Josephine speaks not only of the status of Mississippi criminal law in 1861 at the dawn of the war, but more importantly, it enlightens our understanding of the domestic relationships between whites and blacks in slave-holding households. This case has it all-- lust, incest, miscegenation, cruelty, revenge, conspiracy and finally, some sort of appellate justice.
Josephine, a slave, was co-indicted in Bolivar County along with George, another slave, for the February 27, 1857, poisoning of Lelia Virginia Jones, the fourteen-month-old daughter of Josephine's master, Lafayette Jones. Josephine must have been a woman of rare value--the record indicates that her master hired "Gov. F. and Messrs., B. & S." to prosecute Josephine and defend her co-defendant! Governor F. was likely Henry S. Foote, governor of Mississippi from 1852 to 1854. Josephine herself, whose material resources must have been very limited, was vigorously defended by "F. Anderson and George V. Moody," two prominent members of the antebellum bar. Henry S. Foote, a former United States Senator, had defeated Jefferson Davis for the governorship of Mississippi in 1851.
The trial judge, J.S. Yerger, was likely related to former high court Justice William Yerger, who had been defeated by Alexander H. Handy in 1853. Justice Handy, from Maryland, a staunch secessionist Democrat, and the author of the rule of Sam v. State, would write the high court's opinion in Josephine's case. If ever a defendant seemed likely to be hanged in antebellum Mississippi, it would seem to be Josephine.
Lafayette Jones purchased Josephine, a light complexioned mulatto, in 1857 in the markets down in New Orleans. She did not want to leave the city and, at the time of her sale, was crying and "taking on considerably" because, according to Master Jones, some other slaves had stolen her jewelry.
Her tears presaged calamity. Upon arrival in Mississippi, Josephine found a deadly cast of characters awaiting her. There was Mrs. Jones, the master's wife of only two years. Her testimony revealed a deep resentment and jealousy of Josephine. There was old George, her co- indictee, who suffered from rheumatoid arthritis and had been promoted from the fields to yard man twelve to eighteen months prior to the murder. Only days before the murder, the master had told the overseer to send George back into the fields to "go to laying off corn-rows with a plow." George was unmarried at the time of the murder and the master may have been jealous of George's potential relationship with Josephine.
Master Jones also owned a slave named Elsey, who had been with him since 1838. She had been his cook until the arrival of Josephine, who replaced her in the kitchen. Elsey was then also "turned out into the field." Elsey was the mother of another of Jones' slaves, Lethe, who still lived on the plantation and who was the mother of a mulatto child who was about eighteen months old at the time of the murder. Jones may have been the father of both Lethe and Lethe's baby.
Jones owned yet another mulatto slave named Eliza, who was about twenty years of age. Eliza, who may have also been jealous of Josephine, proved a critical witness against both Josephine and George.
The trial court judge sailed a tight ship. Defense counsel for Josephine was not allowed to ask the following questions of Jones:
"Did you, shortly after your marriage to your present wife, and whilst in Madison parish, have the woman Elsey, your slave, and the woman slave of yours above spoken of by you, arrested and tied, and so kept for several days, upon a charge made by you that she had poisoned your first wife, and that Elsey had said, shortly before she had been arrested, 'I have put my first mistress under the ground, and will soon put the new one there;' and had you so kept her tied deliberating whether or not you should deliver them to the officers of the law for prosecution?"
"Have you, before the said 27th February, 1857, for some years been in the habit of sexual intercourse with the said woman Lethe, the daughter of Elsey, and are you the father of her mulatto child?"
"Have you, before the 27th February, 1857, for some time been in the habit of sexual intercourse with your said slave Eliza, who is to be a witness in this case?"
"Did you, in New Orleans, and on the afternoon of the day before the day on which you whipped defendant as aforesaid have sexual intercourse with her?"
Jones was not forced to answer these questions and could not remember under cross-examination whether he had stated that he would spend half of his fortune to convict Josephine.
Jones testified on direct examination that Josephine had been under his service about two weeks prior to February 27, 1857. He had noticed that "she did not move about at (his) house with the life and sprightliness she did in New Orleans." She had good reason. On the morning of the 27th, Mrs. Jones complained that breakfast had been cooked badly, and according to her, "she talked mildly" to Josephine about it. Josephine responded "impudently and saucily." Mrs. Jones then complained to her husband who whipped defendant after breakfast that morning. "She appeared vexed about the whipping, throwing her head around to her shoulder to see a cut made by the whipping. (Master Jones) don't (sic) know whether he whipped her with a cowhide or switch." After the whipping, Mrs. Jones, seeking to highlight her absolute authority, called Josephine from the kitchen. Josephine "did not reply, and turned her back on (Mrs. Jones), and made a face at (Mrs. Jones), and turned over a chair. (Mrs. Jones) then procured the overseer to whip her." The day passed relatively uneventfully thereafter. Elsey and Lethe, who had been "turned out" into the fields, spent the day planting potatoes and George, managing to delay his own trip to the fields, hung around the yard.
Josephine prepared dinner for the family that evening. The dinner party included Master Jones, Mrs. Jones, a son, their fourteen-month old daughter, Lelia, and a visitor, Mr. Forbes. The meal proceeded uneventfully until Mrs. Jones poured a cup of tea for the child and handed it to the child's nurse. The nurse began feeding the tea to the child and Master Jones and Mrs. Jones also began drinking the tea. All three of them became ill and began vomiting, though the son and Mr. Forbes, who had not consumed the tea, were unaffected. Master Jones, alarmed, ordered the tea-pot locked in the parlor, sent for the overseer to arrest Josephine and sent for a doctor. The three ill family members then retired to their beds. The overseer arrested Josephine who was tied and held prisoner.
Dr. C.R. Mason testified that he had seen the sick child, Lelia, on the night of the poisoning. He opined that her symptoms indicated arsenic poisoning. Upon cross-examination, he admitted that the poisoning also resembled gastritis, gastroenteritis and Asiatic cholera. He could not state positively that the Jones family had been poisoned but thought they had been poisoned with arsenic. Critically, the lower court excluded inculpatory admissions to Dr. Mason made by Josephine "because they were procured upon his assurance that, if she would tell all she knew of the matter, (Dr. Mason) would get her off on a steamboat." The doctor was, however, allowed to testify that pursuant to Josephine's directions, he found a fragment of a glass vial, partly fused by heat, in the ashes of one of the fireplaces.
Jones's slave Eliza testified that she had seen the slave, George, give something in a vial to Josephine, shortly before the poisoning. She heard him say that it was ratsbane or strychnine and that he had no use for it. She stated that Josephine thanked him for the vial. According to Eliza, when George was looking for the poison, he said that the overseer told him "to go to laying off corn-rows tomorrow, and he was not able to do it, and wouldn't do it, and that his master was getting tighter on him than he ever had been."
George, her co-indictee who was under sentence of death at the time of Josephine's trial, testified that he did not know what was in the vial which he gave to Josephine the night before the poisoning. He did state that at the time he gave the vial to Josephine that Eliza held a pine torch for him as he handed the vial to Josephine. He testified that the night before the poisoning, he heard Josephine and a slave named Charles talking outside of George's house. George stated, "Charles said he did not know how to fix the papers, and Josephine said she would have them fixed, and they would get a skiff and go to Napoleon or go up the river." George further testified that "(w)hen the lamentation was going on in the house" that "Charles (another slave) was going towards the horse-lot, and defendant coming behind him, she said, 'Charles, now I have ruined myself;' and he said, 'Yonder's the overseer,' pointing backward, and then she stooped down to pick up some chips." Charles denied that this conversation occurred.
The slave Abram testified that on the morning following the poisoning, several of the slaves were in the room with Josephine and that a slave, Becky, was "shaming prisoner for having done what was done, and prisoner said, 'For God's sake, hush, people. You make more fuss about it than the white folks do. I am not the first one that did such a crime by ten thousand."' Abram's testimony was contradicted by the testimony of another slave, Raney, who was also his wife, who testified under cross-examination that Josephine had said "(f)or God's sake, people, hush. Even if I had done it, I am not the first one that has done such a crime by ten thousand." Raney stated on the day of the poisoning she had been "in the field ploughing, the trash-gang picking up corn-stalks. The field hands were not allowed to go about the kitchen."
The overseer, Alston Dixon, testified that in 1854, George had shown him a small vial in which there was white powder.
The prosecution produced Joseph McGuire who had delivered the teapot to Professor W.D. Moore of Oxford. According to McGuire, Professor Moore, a scientific chemist, had done a forensic analysis on a greenish brown crust in the bottom of the teapot and "on submitting this crust to the proper chemical tests, he procured the pure metal, arsenic, and then procured from the said pure metal octohedral arsenical crystals, or crystalized arsenic."
The defense called Joseph C. Rogers, a white man, who stated that he had been acquainted with Josephine for many years in Paducah, Kentucky, and that she had been a nurse in his family. Rogers testified that "her character for kindness, humanity, and amiability was good."
Clearly, anyone living on the Jones plantation might have had motives to poison Lafayette Jones, though none should have had cause to murder his daughter. Josephine, of course, was the prime suspect. She had prepared the evening meal and that day had endured two beatings and possible forced sex with Jones. Mrs. Jones surely resented Lafayette's philandering and appeared to be extremely jealous of Josephine. Elsey, the cook prior to the arrival of Josephine, had just been "turned out into the field." She undoubtedly was not only resentful of Josephine, but was wounded by the loss of house privileges and her concomitant reduction in caste. Her status had been degraded from house servant to the brutish existence of a common field hand. She apparently had also been Master Jones' concubine, as was her daughter Lelia. And, according to the record, she may have once been involved in poisoning his first wife. George, of course, felt he had been wronged by the master who had ordered him into harder labor despite his arthritic condition.
Justice Handy (viewing the facts cynically and interpreting the law strictly) found grounds to reverse the conviction of Josephine upon the technical point that both counts of the indictment charged her as principal and not as accessory. He stated that "the rule is well settled at common law that this could not be done." Handy found that the right to have a properly drafted indictment, "was a substantial right of the prisoner and not a mere question of form of proceeding."
Like Justice Clayton in Wade, Handy also had to deal with the aggravating Mississippi Legislature. The Legislature targeted Josephine after the trial and during appeal by attempting to cure the faulty indictment by ex post facto legislation. This, Handy ruled, could not be done. He found the technical deficiencies sufficient to warrant reversal:
We do not deem it proper to express any opinion upon the sufficiency of the evidence to sustain the verdict. But it is a sufficient objection to this view, that it is a case depending on circumstantial testimony, in which it is not clearly apparent whether the jury found their verdict upon the belief that the prisoner was guilty as principal, or as accessary (sic).
The case was reversed and remanded for a new trial. No extant appellate records document Josephine's ultimate fate on remand. Perhaps a close inspection of Bolivar County records would solve this mystery.
Michael P. Mills