Nelson v. State

• Decision Date: 30 April 1847
• Parties: NELSON, a Slave, v. THE STATE.
• Court: Tennessee Supreme Court

26 Tenn. 542

NELSON, a Slave,

v.THE STATE.

Supreme Court of Tennessee.

April Term, 1847.

Indictment for murder against Nelson, a slave, in the circuit court of Hardin county. On trial by jury, before James Scott, judge, presiding, the defendant was convicted and sentenced to be hung. From this judgment he appealed. The facts upon which the decision of the supreme court turned will be found in the opinion delivered.

E. Walker, for plaintiff in error.

Attorney General, for the State.

REESE, J., delivered the opinion of the court.

The prisoner was indicted and convicted in the circuit court of Hardin county for the murder of one David Sellers, and has prosecuted his appeal in error to this court. Many grounds of error have been here assigned on behalf of the prisoner, and among them that the declarations of Sellers very shortly before his death were improperly received as testimony upon the trial against the prisoner. The witness proving these declarations stated that when the deceased, after having been wounded, was brought to the house, he told his wife “not to be alarmed, that he was not badly hurt, and was not going to die.” About ten minutes afterwards deceased told Wiley Mangum that Nelson, the prisoner, “had stabbed him.” He seemed to talk with great difficulty, and said other things which witness did not distinctly understand, but thinks he was trying to say “that Nelson had tried to kill him two or three times before, but he did not at this time express any fear or opinion as to his death.”

There was abundant testimony, independent of all this, to prove that the prisoner had stabbed the deceased, and that matter was not disputed on the trial. The object of this proof was to establish that the prisoner had two or three times before attempted to kill the deceased, so as to show malice. The deceased died within an hour after he was brought to the house. This testimony was illegal. To make dying declarations competent testimony, the person making them must be conscious of the peril of his situation, and believe his death impending. This need not be personally stated by him, but it must be fairly inferable from his language and his condition, which condition he must be conscious of. But here, ten minutes before the declaration, he stated that he “was not badly wounded, and was not going to die.” No change in his condition, or in his consciousness with regard to it, is shown to have occurred before the declarations were made. It is...