TBA Law Blog

Posted by: Donald Paine on Dec 31, 2009

Journal Issue Date: Jan 2010

Journal Name: January 2010 - Vol. 46, No. 1

In 1853 Major was a black slave who lived on the Looper family farm in Scott County. One night in August of that year he allegedly attempted to rape white teenager Mirah Looper, about 14 years old. He was tried and convicted and sentenced to death four times. Three times the Tennessee Supreme Court reversed, and once the trial court granted a new trial.

Neighbors of the Loopers, Mr. and Mrs. Sexton, asked Mirah to babysit their three little children overnight while they visited a sick relative. Mirah did so, bringing along a niece about age nine. After all four children were asleep, the babysitter went to bed. So far the facts are apparently true.

But the testimony of Mirah Looper was challenged concerning subsequent events. She claimed that she heard loud knocks on doors at the north and south sides of the house. She opened a door and saw Major in the moonlight. He ran away.

Then she awakened all children and set out in darkness to her home. Mirah swore that Major assaulted her en route. Her testimony is summarized in the bill of exceptions (transcript of evidence today): "He seized her by the throat, choked her with one hand, and tried to pull up her clothes with the other. He then jumped off her and ran away."

Major was indicted in Scott County (Huntsville), but an impartial jury could not be assembled. Venue was changed to Morgan County (Montgomery then, now Wartburg), again without success.

The first trial convened in Fentress County (Jamestown). The conviction and death penalty were reversed in an opinion reported at 34 Tenn. 11 (1854). Judge Totten wrote: "The identity of the prisoner with the person who committed the assault is a point on which more full and satisfactory proof may be adduced. We are not content to affirm the conviction in the present state of the case and remand for a new trial."

Venue from now on would be in Putnam County (Cookeville). The second jury convicted and death sentenced Major. The Supreme Court reversed "on account of misconduct of some of the jurors." The third jury reached the same result, but the verdict was "set aside by the court for reasons not disclosed by the record."

The fourth trial was reviewed and reversed in an opinion reported at 36 Tenn. 597 (1857). Judge William R. Harris wrote a good opinion; I suggest that you read it. The court excoriated Mirah Looper and her brother Granville Looper and her mother Nelly Looper for rampant perjury, impeached by cross-examination and three defense witnesses. Keep in mind that an accused was not competent as a witness in those olden days.

Mirah was impeached by inconsistent statements. She testified in the former trials and initially in this trial that she saw Major by moonlight when she opened the north side door. "But in the course of her examination she seems to have recollected that it had been argued on a former trial that the moon could not have shown in his face in the position she placed him on the north side of the house, and she suddenly tacks and declares that it was on the south side." Three witnesses testified that she swore "north side" in earlier trials, and the jury in the fourth trial heard the change from "north side" to "south side." Amazingly, she even denied to that jury that she made inconsistent statements to them!

Mirah also had a bit of bias, another impeachment tool. She told the jury that she wanted Major "and his counsel" hung. She volunteered to be hangwoman. She would then saw off heads of Major and lawyers "with an old saw."
Granville claimed that he saw tracks of shoes that Major wore. But he admitted that he "did not say a word about the tracks at the first trial." Impeachment by inconsistent statement can be proved by silence as well as affirmation.
Nelly testified at the fourth trial that Major was at her house on the night in question. She had sworn two years earlier that Major was elsewhere.

And was Nelly biased against the accused? "She said she could cut off his head with a case knife and be a week at it." (A case knife is a sheath knife, having a fixed blade and designed to be carried in a sheath.) By my standards that is bias.

Whatever happened to Major? The very last page of court records I have is dated April  12, 1858, and recites the remand from the Supreme Court at Nashville to Cookeville, Putnam County. My best guess is that the prosecutors gave up. After four reversals and an opinion branding Mirah Looper and family perjurers, why retry?

I do have assurance from the Tennessee death penalty expert that Major was never legally executed. My friend Lewis Laska says Major is not on his lengthy list.

I thank Judge Joe Duncan for telling me about this chapter in our legal history and sending me on the hunt, and I thank Darla Brock of the State Library and Archives for sending me records to assist my research.  

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.