
    Elijah, a slave, vs. The State.
    ^ mas^01' ’s a competent witness for or against his slave on his trial on an indictment for an assault and battery with intent to commit murder in the first degree.
    On the trial of a slave for an assault with intent to commit murderin the first degree the court have the power to discharge the jury and enter a inis-trial, with the consent of such slave and the counsel employed by his master to de_ fend him. It is not necessary that it should appear that the master consented to such mis-trial.
    At a circuit court held for the county of Smith, in the town of Carthage, Judge Caruthers presiding, the grand jury, on the 16th day of April, 1839, returned a true bill againstElijah, a slave, the property of Elijah Carmon, for an assault and battery with an intent to commit murderin the first degree, by killing maliciously and premeditatedly David C. Puryer. To this indictment the defendant pleaded not guilty, with the concurrence of his master, who defended the prosecution} and issue was joined upon this plea. On Monday, the 22d April, the trial commenced. Oil Tuesday, the 23d, the testimony and arguments of counsel were heard. On the 24th, the jury not being able to agree, were put under the custody of an officer. On Thursday, the 25th April, 1839, the jury was discharged and a mis-trial entered. An entry was made on the records of the court in the following terms: “Thursday, 25th of April, 1839, came again the attorney general for the State and the attorney of the said Elijah Carmo^ the owner of said slave, who defends this prosecution, and the said defendant was again brought to the bar of the court in custody of the sheriff, and then came also the same jury; elected, tried and sworn in this case, when the jurors declared that they had not agreed'upon their verdict and that they could not agree upon their verdict. Whereupon, by consent of the attorney general and" the said defendant and the attorney who defends for said defendant, and with the assent of the court, the jurors aforesaid are discharged and a mistrial entered.” At the August term, 1839, the cause was continued by the State. At the September term, 1839, the honorable Alvah Cullom, a special judge appointed by reason of the indisposition of the regular judge, presiding, the causejwas tried and the defendant convicted as charged in the bill indictment. A motion was made for a new trial. This motion was overruled, and the said Elijah sentenced to be hanged on the 1st day of January, 1840, in the town of Carthage. From this judgment an appeal in the nature of a writ of error was prayed and obtained to the next term of the supreme court of the State of Tennessee at Nashville.
    The bill of exceptions contains the following entry: “The defendant, by his counsel, offered as a witness on his behalf Elijah Carmon, the owner of said slave Elijah, but he was rejected by the court as an incompetent witness; to which opinion of the court, in the rejection of said witness, the defendant by his counsel excepts.”
    
      R. J. Meigsi for the prisoner.
    
      Attorney General, for the State.
   Reese, J.

delivered the opinion of the court.

This is an indictment for an assault with intent to commit murder in the first degree, an offence which, in a slave, is capital by the provisions of our statute. He was convicted in the circuit court, and has prosecuted this appeal in error to reverse the judgment. It is argued by his counsel that, at the term previous to that when the verdict and judgment were given, a mis-trial was improperly entered; that the record shows only that the defendant and his counsel consented to the discharge of the jury when the consent of the master should also have been shown, but the counsel was coufisel for the master and the slave, and the consent of the defendant and his counsel are well enough, and bring the case within the principle stated by this court in the case of Mahala vs. The State, 10 Yer. But it is said the circuit court erred in rejecting the master of the slave, when offered as a witness in his favor, on the gz'ound of his incompetency from pecuniary interest. And of this opinion are the court. A father has an interest, which may be valuable, in the services of his minor son, yet it is not questioned that he can be a witness for or against him on a charge affecting hi's life. A master . ° . . ° , ? . , have a pecuniary interest m the future labor ana ser* vices of his apprentice, much exceeding, it may he, in a fe'W pursuits, the entire value of this slave; yet, perhaps, it has never occurred to any one that the master is incompetent to testify on behalf of the apprentice in a matter affecting his life. The relation of master and slave is indeed different; hut in a case like this the law, upon high grounds of public policy, pretermits, for a moment, that relation,' takes the slave out of the hands of his master, forgets his claims and rights of property, treats the slave as a rational and intelligent human being,-responsible to moral, social and municipal duties and obligations, and gives him the benefit of all the forms of trial which jealousy of'power and love of liberty have induced the freeman to throw around himself for his own protection. If then the master know any fact tending to save the life of the slave, shall society, who have taken from him the slave for the purpose of trial, say to him, not that you are master and we will weigh your credit, but you are master and shall not speak at all? On grounds of public policy, of common humanity, of absolute necessity, the master must be held to be competent as a witness for or against the slave. Society will not allow him to say, I have a pecuniary interest in the event of the trial, my testimony may subject me to a loss, and I will not testify against my slave. On the other hand, humanity forbids that society should say, you have such interest and shall not be heard to prove a fact in his favor. In cases where one slave may kill another, the master may often be the only person cognizant of his guilt, or the only person who can establish his innocence. Shall he refuse to speak in the one case lest he in* cur a loss, shall his lips be sealed in the other because he has an interest? Public policy and common humanity dictate the necessity of so treating this relation that the guilty should not escape punishment, or the innocent be made to suffer. In England, where rewards have been offered for conviction by the public, the witness entitled to such rewards have been held competent by the unanimous opinion of the twelve judges, and this against the life of an individual, on. grounds of public policy. The case before the court seems to ° i a v have occurred in New Jersey, (1 Sou. Rep., Aaron vs. State,) in the case of a negro servant or slave for a term of years, and the master was held to be competent. Except that case, there seems to be no precedent. But upon principle, we have no doubt that the objection must be held to extend to the credit not to the competency of the master.

The verdict will therefore be set aside, and the judgment reversed, and the .prisoner remanded to be tried again.  