Murder in Black and White: A Crime and Media Story in Antebellum Louisiana

Murder in Black and White:A Crime and Media Storyin Antebellum Louisiana

Marianne Fisher-GiorlandoDaniel Dotter

ABSTRACT. In this paper we will tell the story of “The Poisoning ofthe Late Levi Smelser.” Through detailed examination of both the mediareports and official documents, the ensuing narrative portrays how raceand gender influence the criminal justice processes of late antebellumNew Orleans. As the story unfolds, two types of accounts emerge. Wecome to know the major participants in this case, Kitty, the slave, LeviSmelser, the victim, Theresa Smelser, the widow, and Adam Scott, theyoung foreman of Smelser’s tin and copper shop, in their ordinary andcomfortable lives before the murder. Secondly, we see these same char-acters play shifting roles of guilt and innocence in the planning and im-plementation of the murder as the newspapers reveal, magnify andglorify new “particulars,” day-by-day. This story is actually composedof a number of plots and constitutes a “scenario” of crime creation by

Marianne Fisher-Giorlando, PhD, is Professor of Criminal Justice, Grambling StateUniversity, Grambling, LA 71245.

Daniel Dotter, PhD, is Professor of Criminal Justice, Grambling State University,Grambling, LA 71245.

Address correspondence to: Marianne Fisher-Giorlando, Criminal Justice Dept.,Box J, Grambling State University, Grambling, LA 71245 (E-mail: [email protected]).

The authors especially wish to thank Wayne Everard and Irene Wainwright, archi-vists in the Louisiana Division of the New Orleans Public Library. The authors alsothank Mary Gehman, Katherine Senter, and Mary White of New Orleans.

An earlier version of this paper was presented at the Annual Meeting of the Louisi-ana Historical Association, New Iberia, LA, March 6, 1998.

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sources of the mass media and related groups. As a scenario, the storyrepresents “an interactional moment or site of meaning creation.” [Arti-cle copies available for a fee from The Haworth Document Delivery Service:1-800-HAWORTH. E-mail address: <[email protected]> Website:<http://www.HaworthPress.com> © 2003 by The Haworth Press, Inc. All rights re-served.]

KEYWORDS. Antebellum Louisiana, gender, race, criminality, labeling

INTRODUCTION

Levi Smelser, “a native of Pennsylvania, and for the last 18 years aresident” of New Orleans died on Monday morning, May 28th at 1o’clock (Daily Picayune, May 29, 1855).

Notice of Levi Smelser’s death was placed in the middle of the nineother deaths listed in the Intelligence column for the New Orleans DailyPicayune, the next day, on May 29, 1855. If you weren’t looking for it,you could miss the notice easily. This initial unassuming obituary no-tice gave no indication of the amount of space that the New Orleans’newspapers would eventually devote to the circumstances surroundingSmelser’s death. However, the next short report in the Sunday morning,July 15th Daily Orleanian (1855) revealed that Levi Smelser did not dieof natural causes. Accordingly, the article stated that:

Kate, a negress, was arrested by the officials of the First District,accused of having poisoned her owner, Mr. Smelser, a coppersmith of Tchoupitoulas street, who was recently intered [sic].

And the Daily Picayune (July 15, 1855) of the same day added that themurder allegedly “was committed by administering either arsenic orchloroform.”

Shockingly enough, a slave was charged with poisoning her master,but this was just the tip of the iceberg. Over the next two and one-halfyears, the “Smelser Poisoning Case” would slowly unfold, as day-by-day the contemporary media, the New Orleans newspapers, covered theensuing Coroner’s investigation, arraignment, examination, trials, andSupreme Court appeals of this sensational case. An antebellum versionof a soap opera played itself out in unbelievable and explicit detail forthe New Orleans public.

60 WOMEN & CRIMINAL JUSTICE

In this paper we will tell the story of “The Poisoning of the Late LeviSmelser” (New Orleans Commercial Bulletin, July 28, 1855). Througha detailed examination of both the media reports and official docu-ments, the ensuing narrative portrays how race and gender influence thecriminal justice processes of late antebellum New Orleans. As the storyunfolds, two types of accounts emerge. We come to know the majorparticipants in this case, Kitty, the slave, Levi Smelser, the victim,Theresa Smelser, the widow, and Adam Scott, the young foreman ofSmelser’s tin and copper shop in their ordinary and comfortable livesbefore the murder. Secondly, we see these same characters play shiftingroles of guilt and innocence in the planning and implementation of themurder as the newspapers reveal, magnify and glorify new “particu-lars,” day-by-day.

The interplay of these accounts can best be understood as an instanceof deviance labeling (Becker, 1973; Schur, 1980). The narrative is cre-ated over time in newspaper coverage, the primary mass medium of theday. It includes interpretations and judgments freely mixed with de-scriptions of events. The coverage occurs in various New Orleans news-papers during 1855, although there are pieces in the following two yearsas well. The coverage of this case was unusual for newspapers of theera. Most of them devoted no more than a sentence or two to the dailycriminal events. In 1855, the Daily Picayune devoted little space to suchnews. Found in the city column, police and court matters generally tookup no more than half a column for all reports, in a newspaper that raneight pages and seven columns per page. National news, shipping re-ports, other business news, and ads took up most of the space in the late1850s Daily Picayune. Yet the Daily Picayune, and the New OrleansDaily Crescent devoted unusually long columns covering the coroner’sinquest, the examination, and the trial. Even the New Orleans Commer-cial Bulletin reported more information about this case than usual. Fur-thermore, not one of the other antebellum penitentiary women’s caseswas given such coverage by any of the New Orleans papers. Such news-paper coverage indicates that this case was one of the most importantmurder cases of the time.

The story is actually composed of a number of plots and constitutes a“scenario” of crime creation by sources of the mass media and relatedgroups. As a scenario (Dotter, 1997, p. 252), the story represents “aninteractional moment or site of meaning creation.” Actors, their actions,and various social responses are constantly shifting as the tale unfoldsin a process of criminal labeling contextualized by race and gender im-ages (Dotter and Roebuck, 1988; Dotter and Fisher-Giorlando, 1997).

Marianne Fisher-Giorlando and Daniel Dotter 61

We concentrate primarily on newspaper reports, specifically on the tes-timony of the witnesses, and how that testimony created an image of theparticipants in the media. As a scenario this homicide case containsmultiple levels of meaning. The dynamics of meaning-production, es-pecially the importance of mediated presentation, is situated in asocio-cultural context. We turn now to a description of that context inlate 1850s New Orleans, Louisiana.

SOCIO-CULTURAL CONTEXT

Nationally, slavery abolitionists were gaining political power, withthe enactment by Congress of the Kansas-Nebraska Act and the result-ing evolution of the Republican party which was dedicated to prohibi-tion of slavery in the territories. By the 1850s many Southern statesconsidered succession. Although a few prominent leaders in Louisianaechoed this stance, most citizens of the state did not advocate succes-sion at this time. Moreover, the Republican party was a purely sectionalparty confined to the North, and no Republican ever appeared on a Lou-isiana ballot until after the Civil War. Yet, local New Orleans newspa-pers devoted many editorials to discussions of the Kansas-NebraskaAct and its implications for the institution of slavery. The other emerg-ing political party, the Native-American or Know-Nothing party, wasviable in local Louisiana elections, however (Schafer, 1997, p. 127).

Accordingly, the competing political parties in Louisiana (Demo-crats and Know-Nothings) did not debate the issue of slavery, at least onthe surface. Their debates centered around the immigrant question,namely the Germans and the newly arrived famine Irish. Immigrantswere members of the Democratic party and the competing Na-tive-American or Know Nothing party had a nativist, anti-Catholic,anti-immigrant platform. Furthermore, one of the arguments used forcontrolling the immigrant population was the assertion that the immi-grants didn’t understand the country’s customs and were all pro-slav-ery. Beyond the other stereotypical portrayals of the Irish, as violentdrunks who nightly filled New Orleans local jails, the possibility of theimmigrant voting block which opposed slavery clearly threatened theSouth and New Orleanians in particular1 (New Orleans CommercialBulletin, August 16, 1855; Schafer, 1997, p. 129).

New Orleans clearly had an ethnically diverse population–“perhapsmore ethnically diverse than any other city in the United States”(Rousey, 1996, p. 89). It was second only to New York as a port of entry


for immigrants in the 1850s and had a large transient population of sail-ors, boatmen, and commercial travelers (Rousey, 1996, p. 89). Louisi-ana’s total population in 1850 was 26 percent foreign born (SeventhCensus of the United States: 1850, 1853, pp. 474-75). In New Orleans,the foreign born population of 1850 was 49 percent with the Irish thelargest immigrant population in the city (Nieuhaus, 1965; Reinders,1964, pp. 18-19; Schafter, 1997, p. 130; Seventh Census of the UnitedStates: 1850, 1853, pp. 474-75).

Even with these political and immigrant issues, antebellum Louisi-ana was in its “ . . . brightest [economic] years, a peak of prosperitythat would not be matched for nearly a century, [and which] lastedfrom the middle 1830s until the Civil War” (Wilds, Dufour, and Cowan,1996, p. 72). During this era Louisiana’s per capita income became thesecond highest in the nation. (Of course, slaves were a significant partof this capital.) New Orleans was the third largest American city in1840, with exports “that sometimes exceed[ed] New York’s” (Wilds,Dufour, and Cowan, 1996, p. 72).

In the midst of this prosperity, perhaps the by-product of the eco-nomic success, New Orleans was besieged with a common problem ofbig cities-high crime rates. As reflected by arrest rates during thisera, crime made New Orleans “a perfect hell on earth” (Russell, 1863,p. 244). So the New Orleans parish criminal sheriff told WilliamHoward Russell, an English journalist who was visiting New Orleans in1861 (Rousey, 1996, p. 66). Closer to the time period of this case study,police statistics for July, 1856 illustrate that 2,343 people were arrestedin one month alone. Moreover, with a population approaching 170,000in 1860, the 18,509 arrests during the eight months period from July1856 to February 1857 suggest that more than 10 percent of the popula-tion had been arrested within less than a year (Daily Comet, August 8,1856; Population of the United States in 1860, 1864, p. 195). The an-nual arrest rate, 194.4 per 100,000, for minor crimes of violence, as-sault, and assault and battery, for the years 1854-56, was also high.Furthermore, Rousey (1996, pp. 85-86) notes that because both privatecitizens and policemen in the Crescent City were likely to treat assaultsas affairs of honor to be settled privately without the intervention of thepolice and the courts, it is likely that the rates of minor violence weregreatly under reported. In the four years 1857-1860, at least 225 crimi-nal homicides were committed in New Orleans, an annual rate of about 35per 100,000 of the population (Rousey, 1996, p. 85). Violence between theKnow-Nothings and the Democrats also resulted in almost uncontrolla-ble violence during the elections in 1854 and 1855. Rioting in 1854 was


so bad that the police were completely ineffectual (Rousey, 1996, p. 70).New Orleans, in the 1850s, was unquestionably a violent city.

Such high arrest and homicide rates called for a variety of institutionsto detain and imprison the criminal element. Accordingly each districtin the city had a local lock-up where police took the local drunks, disor-derly, and other minor offenders for the night. The next day, the localmagistrate of the district, the Recorder, dismissed a good number ofthese cases, but many others were fined, and/or imprisoned for short pe-riods of time in the workhouses and the parish prison. The lock-upswere also used to detain more serious offenders until their cases wereheard and they were either dismissed or transferred to the First DistrictCriminal Court for trial. Yet, some serious offenders were sent directlyto the workhouse or to the Parish Prison while waiting for an examina-tion in the Recorder’s court.

Conditions of these institutions varied, often depending upon thepoint of view of the describer–official, prisoner or critical foreign trav-eler. However, we are fortunate to have descriptions of the whole gamutof detention facilities in New Orleans because the Grand Jury was re-quired by law to visit and report on them. Sometimes these reports evenbrought policy changes because of the terrible conditions they exposed.For instance, just days before Kitty was arrested and charged with mur-dering Levi Smelser, in a long editorial, the Daily Crescent commendedthe Grand Jury and Judge Robertson for finally closing “that black holeknown as the First District Lock-up” and saving the “criminal and un-fortunate of this district [from being] confined, during the summermonths, in a hole not fit to be tenanted [sic] by decent dogs.” Over-crowding which placed criminals and non-criminals together and thepossibility of an epidemic (yellow fever) because of no ventilation,were just some of this Jury’s criticisms (New Orleans Daily Crescent,July 10, 1855). Judge Robertson had charged the new Grand Jury to in-vestigate the First District Lockup immediately. Just days after their ap-pointment, they issued a special report on the conditions of the lockup.On the same day, Robertson ordered that from July 9th on, no more pris-oners could be detained in the lockup (New Orleans First District Court,1855a). It had taken time though for any response to criticisms of thislockup. The previous April, 1854 Grand Jury report referred to the FirstDistrict Lock-Up as a “infernal den,” noting that the cells were exces-sively filthy and excluded from fresh air (Daily Picayune, April 30,1854).

The parish prison where the accused offenders of this paper’s casewere held, for over a year, received mixed reviews during the 1850s. A


March 1851 Grand Jury report compliments the keeper of the ParishPrison, Mr. Samuel Powers, for conducting the prison with the “usualcleanliness and discipline” (Daily Picayune, March 29, 1851). Threeyears later, the same April 1854 Grand Jury Report which called theFirst District lock-up a “infernal den,” spoke highly of the Parish Prisonand only recommended some repairs as necessary (Daily Picayune,April 30, 1854). A later newspaper editorial surmises that there is evensomething good about the parish prison as it is thought to protect its in-habitants from yellow-fever death, citing only one prison death duringthe terrible epidemic of 1855 (Daily Picayune, February 1, 1856). TheJuly, 1857 Report includes some criticisms noting that the bedding was“altogether insufficient” and although “[t]he cells, environs and yardswere found perfectly clean . . . the out offices were in bad order andoverflowing” (Daily Picayune, July 7, 1857). Finally, the December,1857 Report claimed that the parish prison must have been neglectedfor years as evidenced by the layers of filth found on the floors of the up-per rooms (Daily Picayune, Dec. 6, 1857).

New Orleans executions took place in the parish prison. For the dura-tion of this case’s procedures and while some of the offenders werehoused in the Parish Prison, at least two executions, took place (NewOrleans Daily Crescent, July 14, 1855). Although the non-death rowprisoners could not actually see the execution, one newspaper reportstates: “The prisoners were all shut up in their cells, but they could beseen peering anxiously through the gratings” (New Orleans Daily Cres-cent, June 17, 1857). An English journalist claimed that even though theother prisoners were locked up, some of them could see “what [was] . . .passing, at least those who get good places at the windows” (Russell,1863, p. 246).

As the conflict about slavery became more intense on the nationalfront, some Southern states eliminated their segregated system of jus-tice for slaves. Others attempted to restrict the slave population by pass-ing more encompassing slave code legislation. To this point in time,Louisiana slave codes (i.e., Code Noir or the Black Code) had been por-trayed as more humane than those of other Southern states, simply be-cause the state had allowed the substitution of life imprisonment forexecution in slave capital cases since 1823.2 However, in 1855, andagain in 1857, Louisiana attempted to pass much more restricted BlackCode legislation by increasing the number of criminal behaviors de-fined as capital offenses and punishable by death (Louisiana Acts,1855; 1857). Furthermore, slaves in pre-Civil War Louisiana were con-sidered property until such time that they were accused of criminal of-


fenses as defined by the Black Code. They then became human beingsfully responsible for their alleged criminal actions and therefore subjectto criminal sanctions, under both the Black Code and the criminal codesfor free people (Schafer, 1994, see Chapters 1 and 3 especially). How-ever, current research strongly supports the conclusion that Louisianaslave tribunals did not maintain the slaves’ humanity, but treated slavesmore like compensated property condemnations, and without any pro-cedural protections as existed in criminal trials for free people (Schafer,1996, p. 638).

Slavery in the city was a different phenomena than it was on the plan-tation. Slave scholars note that urban slaves had more freedom, andwere often hired out by their owners for whatever skills they had. Someof the best descriptions we have of slave women in New Orleans arethose “who hawked produce in the streets, peddled goods from door todoor, and operated booths in the markets. Despite their visibility, thesenon-domestic slaves were in the minority” (Gould, 1995, p. 3). Many, ifnot most of 1855 New Orleans’ slaves were employed as domestics, pri-marily house servants, and most of these were women (Gould, 1995, p. 6;1996, pp. 185, 188). Furthermore, the city’s slave holders limited theirslaveholding to small units. In fact, 62.7 percent of New Orleans’ slaveowning households in the First Municipality owned only two or lessslaves in 1850 (Gould, 1995, p. 9; 1996, p. 184).

The institution of slavery was inextricably connected to the system ofpatriarchal gender relations in the antebellum South. White womenwere at once the symbol of male honor and the object of exploitation inpatriarchy (Wyatt-Brown, 1982, p. 16). Compared to slaves, they weremost certainly legally free, but with a constricted voice. According toCatherine Clinton (1989, p. 119), “white slave owners refined system-atic and sometimes similar methods of keeping blacks and women ex-cluded from spheres of power, and often employed near-identicalideological warfare against them.” Victoria Bynum (1992) identifiesthree categories of “unruly” women within Southern patriarchy: thosewho rebelled against male domestic abuse of power, those engaging insocial and sexual normative transgressions, and that small number whoaggressively attacked male authority through acts of violence. Indeed,the deviant and/or criminal actions of these three groups were mirroredin the slave community.

Race and gender were thus interwoven within the ideology of South-ern patriarchy. The official labeling of crime and reportage by mass me-dia were often situations of great sensationalism. We turn now to onesuch story.


THE ORDINARY LIVES OF THE SMELSERS

Levi Smelser and Thirza (generally known as Theresa) Houghtonmarried sometime in the early 1850s after the death of his first wifeMartha Ann Brown. When Levi Smelser died, he had been married tohis wife Theresa Houghton for about four years. A native of Cornwall,England, Theresa had been Mr. Smelser’s previous wife’s housekeeper,so apparently had lived in the household for some time (Brown, 1854b;New Orleans Daily Crescent, July 31, 1855). Levi, a native of Pennsyl-vania, had been a respected citizen of New Orleans for 18 years. Fromall outward appearances Theresa and Levi Smelser lived a materiallycomfortable and happy life.

The Smelsers lived in a seven-room house on Josephine Street in theFourth District of New Orleans (the old city of Lafayette). The property,essentially four lots, was bounded by Poplar, Magazine, St. Andrew andJosephine streets. The seven rooms included a front parlor, back roomand entrance passage downstairs, three bedrooms on the second floorand two bedrooms in the attic. The rooms were nicely furnished as indi-cated by the contents of the house which were valued at $300.50; thereal estate was valued at $8,000 (New Orleans First District Court,1855a; Marshall, 1855a). Mr. Smelser was a successful tin and copper-smith with a tin shop on Tchoupitoulas Street. He also leased two moreproperties next to his shop, all three of which were valued at $4,000. Inaddition, the contents of the shop were valued at approximately $4,500(Marshall, 1855a).

Theresa (Thirza) Houghton Smelser appeared to have some re-sources in her own right also, as she had purchased a number of slavesbetween 1851 and 1852, before she finally purchased Kitty, the slave,for $825.00 on Oct. 27, 1852. The same day, she annulled a purchase ofthree other slaves, Melinda, Edmond, and Louis, whom she had boughtfrom James White for $1,050, seven months before (Barnett, 1851b;Cenas, 1851; Davis, 1852c, 1852d, and 1852e). (Edmond and Louiswere Melinda’s children.) Such rapid sales and new purchases indicatethat Mrs. Smelser was trying to find domestic help and was not success-ful until she purchased Kitty (Johnson, 1999, pp. 202-04). From all evi-dence, the Smelser women were the ones who owned and purchased theslaves for the household. Smelser’s first wife, Martha Ann Brown, hadpurchased at least one slave in 1847 (Barnett, 1851a). There are no re-cords of any slaves’ sales by Levi Smelser, nor any listed in his succes-sion records and no evidence of any slaves working with him in hisshop.


The Smelsers’ large house was not filled with slaves nor children,however. Levi Smelser had no living issue from his present marriagewith Theresa Houghton nor from his first marriage (Brown, 1854a).However, there were a series of single men who worked for Smelserwho also boarded at the house on Josephine. Shortly after Adam Scottwent to work for Smelser, he moved in to board with the family on Jose-phine Street (New Orleans Daily Crescent, July 30, 1855).

Paul Haller, a Smelser employee for about four years, also hadboarded with the family during the first couple of years that he workedfor Smelser. Haller moved out in August of 1854, because Mr. Smelserwanted him to sleep “near the store so [he] could open it early in themorning.” Later, immediately after Smelser’s death, Haller moved backinto the Josephine Street house; this time, his younger brother camealong with him (New Orleans Daily Crescent, November 22, 1856).

As already noted, most slave-holding families in 1850s New Orleansowned no more than two slaves during this era (Gould, 1995, p. 9). Con-sistent with this pattern, at the time of Smelser’s death, and from October,1852, there were no other slaves in the Smelser household besides Kitty.In fact, Adam Scott went to a neighbor, on the night of Smelser’s deathand asked to borrow his two “negroes” to help prepare Smelser’s body forburial (New Orleans Daily Crescent, November 22, 1856).

As to Theresa and Levi’s relationship, Dr. Batcheler, their familydoctor, observed that “Smelser and his wife got along as happily as anycouple I ever saw; she was kind and affectionate to him” (New OrleansDaily Crescent, November 22, 1856). Mr. McDonald, the Smelser’sneighbor, also agreed that “Mr. and Mrs. Smelser lived very happily to-gether . . . ” (New Orleans Daily Crescent, November 22, 1856). EvenPaul Haller, who had been an employee of Smelser’s for about fouryears and gave a great deal of damning evidence against Mrs. Smelserat the trial, claimed that “Mr. and Mrs. Smelser lived together well, asfar as I know.” Mr. William Bein, another neighbor well acquaintedwith Levi for a number of years, knew of nothing wrong between thecouple; Mrs. Smelser always appeared attentive to her husband. Manyfriends and neighbors agreed that she was always kind and affectionatetoward her husband, and that no disagreements were apparent (DailyPicayune, November 23, 1856; New Orleans Daily Crescent, Novem-ber 22, 1856). Mr. Smelser provided liberally for his wife. The only“cause of unhappiness known to have subsided [sic] between them, washis contributing to the support of his two sisters in Pennsylvania,against which she continually remonstrated, by this leading to occa-sional quarrels” (New Orleans Daily Crescent, July 30, 1855).


Life was kind to the Smelsers. Yet we know little about Kitty’s dailylife in the Smelser household. As she was the only slave, Kitty musthave worked very hard, particularly when the boarders were there.However, the two and one-half years that Kitty lived with the Smelserswas at least more stable than her previous two and one-half years. Be-tween April 20, 1850 and October 27, 1852, the day she was sold toTheresa, Kitty had been sold four times, twice by private owners, Mont-gomery and Twiggs who both sold her at a loss to James White. Al-though Montgomery kept Kitty for almost one and one-half years, hesold her for $500, a loss of $300. Mrs. Twiggs, who sold her back in lessthan three months, in 1852, did so for $150 less than the $850 she hadoriginally paid for Kitty. White on the other hand profited from both hissales of Kitty. Not only was instability a problem for Kitty, but she hadspent two extensive periods of time, first six months and then anotherseven months owned by a slave trader. We cannot imagine what lifewas like for her during that time. Kitty was to live with the Smelsers formore than two and one-half years before Levi Smelser’s death, how-ever, longer than she had lived with any of her four previous ownerssince April 20, 1850 (Davis, 1851, 1852a, 1852b, 1852c; Gilly, 1850).Perhaps Mrs. Smelser had finally found domestic help with which shewas satisfied.

THE CRIME

Material wealth does not necessarily bring happiness. When LeviSmelser died in the early morning of Monday, May 28, 1855, all wasnot what it appeared to be. The trouble seems to have started aboutseven months before his death, when Levi Smelser hired Adam Scottaway from the Benthuysen & Co. dry goods store on Magazine Street,as his apprentice to learn the business of tin and copper smithing. Scottwas also an “expert accountant, and in a short time became entrustedwith nearly all the clerical business of the concern” (New Orleans DailyCrescent, July 30, 1855). As noted, Scott soon moved into the Jose-phine Street residence as a boarder. He had not been with the Smelserslong before “an unholy flame sprang up between Mrs. Smelser and him-self”; this illicit affair soon became apparent to friends, neighbors andemployees. Presumably, Smelser became aware of the relationship be-tween Scott and his wife, for he transferred Scott from the entrustedclerk position to work outside on the roof of the Louisiana Medical Col-lege under the direction of Paul Haller. Scott was disgruntled and told


Haller: “I will not quit, but I will have satisfaction. I know how I stand.Mrs. Smelser would rather part with her husband than me.” Haller fur-ther stated that he overheard Scott tell Mrs. Smelser that the only way toget rid of Mr. Smelser “would be to give him a dose of arsenic.” Mrs.Smelser replied that she didn’t want to have anything to do with it, butthat Scott could do as he pleased. Scott then replied that he would givehim a dose. Scott later told Haller that he had found Mr. Smelser’s newwill which Scott incorrectly thought would disinherit his wife; Scott de-stroyed it. Louisiana law did not allow wives to be disinherited as theyhad rights to everything accumulated during the marriage, although thehusband did not have to share anything he brought into the marriagewith him. The wife was not obliged to share what she brought into themarriage with her husband either (New Orleans Daily Crescent, July30, 1855).

Sometime in May, Scott then went to the Morrison’s drug store onCanal Street and purchased a quarter of a pound of arsenic (Daily Pica-yune, July 29, 1855; New Orleans Daily Crescent, July 30, 1855). Onthe way home from church, between 5 and 6 pm on Sunday, May 27th,Mr. and Mrs. Smelser and Scott stopped at Hastings’ drug store, on thecorner of Felicity and Magazine Streets, and had a soda. Mr. Hastingsobserved that “they all appeared to be friendly together” (Daily Pica-yune, August 11, 1855; New Orleans Daily Crescent, November 22,1856). By 9:00 pm that same evening, Dr. Batcheler was visiting Mr.Smelser for the second time. On the first trip, Batcheler had foundSmelser in bed because he had vomited four or five times and was com-plaining of weakness and some thirst. As cholera was prevalent at thetime, Batcheler prescribed appropriate medication for him and left. Onthe second trip, Batcheler proscribed four pills of blue-mass, powderedrhubarb, and morphine which Scott had filled at Hastings’ drug store.Back at the Hastings’ drug store again, around midnight, Scott wokeHastings up telling him that Smelser was having spasms and neededchloroform. Hastings gave it to him and charged it to Smelser’s ac-count. Scott summoned Dr. Batcheler a third time at half-past one tell-ing the Doctor that he thought Smelser was dying. Dr. Batcheler wasastonished. Before he could get dressed to go to the Smelser’s, Scottwas back in an impossibly short period of time, announcing thatSmelser was dead. Going to the house and finding Smelser dead,Batcheler questioned Mrs. Smelser, because he could not understandwhat had caused her husband’s death. Preparations for the funeral en-sued. Scott went next door and asked Mr. Bein if two of his “negroes”could help wash and lay out the body. Mrs. Smelser also sent for some


other neighbors to come to the house to keep her company, presumablybecause of her grief and anguish (Daily Picayune, August 8, 1855; NewOrleans Daily Crescent, November 21, 1856, November 22, 1856).

Dr. Batcheler went back to the Smelsers’ the next morning and ques-tioned Mrs. Smelser once more, as he was still disturbed about the causeof death. He then decided it was just one of those peculiarities andsigned the death certificate stating that Smelser had died of convulsions.Batcheler didn’t suggest an examination of the body out of respect forthe feelings of Mrs. Smelser (New Orleans Daily Crescent, November21, 1856, November 22, 1856). However, as the story was eventuallyrevealed, at some point in the early evening of Sunday, May 27th, Scottand Mrs. Smelser had mixed the arsenic in water, which Smelser drank.Adam Scott and Theresa also put chloroform soaked handkerchiefsover his face (New Orleans Daily Crescent, July 30, 1855). Kitty, theslave, witness to all of this, was bribed to secrecy by Scott and Mrs.Smelser. In exchange for her secrecy about the murder, Scott andTheresa Smelser promised Kitty freedom, and plenty of money. Theyeven told Kitty that they had procured a pass for her to travel to anotherstate from which she could more easily get to freedom (New OrleansDaily Crescent, July 30, 1855).

Within a couple of weeks after Smelser’s death, Scott, Theresa andKitty moved to one of the Smelsers’ houses on Tchoupitoulas Streetnear the tin shop. Scott “entered into the full enjoyment of the property,apparently as joint heir with Mrs. Smelser and acted as executor of theestate” (Louisiana Courier, August 11, 1855; New Orleans Daily Cres-cent, November 22, 1856). After the move to the Tchoupitoulas place,the couple appeared to become even more flagrant in public displays oftheir affection for one another. Haller disclosed that he saw Mrs.Smelser go into Scott’s room late at night. She claimed she was going inthere to “light his candle.” They were seen walking together late atnight, arm in arm. One neighbor saw them playing with each other in arocking chair. Another neighbor, Mr. Haag, who lived across the alleyfrom the Tchoupitoulas house, also observed the couple in compromis-ing situations. Haag climbed up on his roof to peer into their bedroomwindow and described what he saw as follows: “I saw Scott take hisclothes off, he kissed Mrs. Smelser and she kissed him; there was no bedin the room; and I saw what is to be seen in a house of prostitution.”When asked how often he saw the couple in such circumstances he re-plied four or five times, but that it wasn’t his business. Scott eventuallygot so angry with this neighbor, that he cursed him and cut off part of the


roof so Haag could not spy on Scott and Theresa anymore (New OrleansDaily Crescent, November 22, 1856).

Approximately six weeks after Smelser died, in the beginning of Julysometime, Kitty, the slave, arrived in Morehouse’s yard, handcuffs inhand, with an amazing story. According to the Daily Crescent of July16th (1855), Kitty had become “dissatisfied and conscience-strickenand resolved to make a clear breast of it the first opportunity; whichshe did upon escaping, by going immediately to Mr. Morehouse [Mr.Smelser’s friend and neighbor] and telling him” the following particu-lars (New Orleans Daily Crescent, July 16, 1855). Mr. Smelser “was apoisoned man” announced Kitty (Louisiana Supreme Court, 1857).Morehouse claims he called Mr. Hall who was just leaving the yard, tolisten to what Kitty had to say. Encouraged to tell all, Kitty did so(Louisiana Supreme Court, 1857). Kitty related to him about the ar-senic, the chloroform and the affair between Scott and Mrs. Smelser(Louisiana Courier, August 11, 1855). Kitty also claimed that Scotthad attempted on two previous occasions to poison Smelser: once in apie, and a second time in some blackberry jam. Both attempts failed(Daily Picayune, August 8, 1855). Furthermore, Kitty even had someof the remaining arsenic, which she gave to Morehouse (New OrleansDaily Crescent, July 16, 1855). She also told Morehouse that TheresaSmelser and Scott had bribed her to secrecy with the promise of free-dom and money. After the murder, Scott had closely restrained Kitty,and at some point he put her in handcuffs and irons (Daily Picayune,August 8, 1855). Kitty escaped and showed up in Morehouse’s yard.Morehouse then took Kitty to a gentleman at the St. Charles Hotel, inorder to have her story repeated to him. Scott showed up and tookKitty away from Morehouse and put her in a slave-yard for sale. Nextday, Morehouse went before Recorder Bright who made an affidavitto have Kitty arrested upon a charge of murdering her master. In themeantime, Theresa Smelser had sold Kitty to Scott on July 10th (Mar-shall, 1855b). The initial newspaper report which stated that Kitty ac-cused her owner because of revenge was probably correct. TheresaSmelser and Adam Scott were preparing to sell Kitty out of the state,apparently because they were afraid she would “tell all.” In fact, Kittywasn’t going to keep the secret any longer.

Because it was impossible to use slave testimony against white peo-ple, it took the authorities a couple of days to verify Kitty’s statements.However, by Friday, July 13th, the inquest was under way (LouisianaCourier, July 17, 1855). Smelser’s body was exhumed and contents ofhis stomach, liver, and portion of the intestines submitted for chemical


analysis (New Orleans Daily Crescent, July 30, 1855). Kitty was ar-rested the next day on Saturday, July 14th (Daily Orleanian, July 15,1855). Scott immediately came under suspicion also and he was ar-rested at 9:00 pm, Monday, July 16th, two days after Kitty. The authori-ties were so anxious to get Scott into custody, that Coroner Forsheeprepared a precautionary affidavit, so Scott could be detained until theycould obtain more information and file a more precise document (DailyPicayune, July 18, 1855).

The coroner’s inquest lasted for more than two weeks with as manyas twenty witnesses testifying before the coroner’s jury. Testimonytaken from Dr. Bertrand, a famous New Orleans chemist, the ceme-tery’s sexton, people who worked for Smelser, neighbors and the familyphysician, revealed enough details to convince the coroner’s inquestjury to publish the following verdict:

After a postmortem examination, and the contents of the stomachbeing analyzed by P. A. Bertrand, chemist, we the jurors, do saythat Levi Smelser came to his death by arsenic and chloroform, ad-ministered to him by one Adam Scott, aided and abetted by Mrs.Smelser, and the slave Kitty on the evening of Sunday, the 27th ofMay, 1855. (New Orleans Commercial Bulletin, July 30, 1855)

In the meantime, Theresa Smelser was finally arrested, on Friday, July27th at 8:15 pm, as an accessory to the murder of Levi Smelser and wastaken to the parish prison immediately (Louisiana Courier, July 29,1855; New Orleans First District Court, 1855b).

All three were arraigned before Recorder Bright, pleading “not guiltyto the charge of murder, and were remanded to prison” until August 7thwhen they would be examined (New Orleans Commercial Bulletin, July30, 1855). The public crowded the courtroom to overflowing on August7th, anxious to hear the details of the Smelser soap opera. Although fiftywitnesses were summoned, the examination was finished in two days;the defense agreed not to offer any testimony and the case was submit-ted to the Recorder without any argument (New Orleans Daily Cres-cent, August 8, 1855). On August 10, the Recorder

committed the accused as charged–viz: Adam Scott as principal,and Theresa Smelser and her slave woman Kitty as accessories inthe murder by poisoning of Levi Smelser–for trial in the First Dis-trict Court. (New Orleans Daily Crescent, August 11, 1855)


The three were returned to prison, where they would have a long wait inthe Parish Prison before coming to trial; continuance after continuance onthe state’s part delayed trial for Smelser and Scott until the end of Novem-ber, 1856; Kitty’s trial would not take place until March 1857, four monthslater (Daily Picayune, March 15, 1857; New Orleans Daily Crescent, Au-gust 11, 1855; New Orleans Daily Crescent, November 21, 1856).

When the case came to trial in November 1856, essentially the samewitnesses who had appeared at the Coroner’s Inquest and the examina-tion testified for the prosecution. A great deal of time was devoted to thechemical analysis and verifying the presence of arsenic in the contentsof Mr. Smelser’s stomach. Equally lengthy and detailed was the testi-mony about the relationship between Mrs. Smelser and Adam Scott.This time though, the defense brought in a parade of character witnesseswho testified about Mr. and Mrs. Smelser’s happiness, particularly, Mrs.Smelser’s consideration and attentiveness to Mr. Smelser. None of thedefense witnesses reported seeing anything irregular between Adam andTheresa. After two long days, the jury agreed with the prosecution andpronounced Adam Scott guilty as charged; it could not agree about Mrs.Smelser. Based on the plea that she didn’t think she would live if she hadto stay in the Parish Prison any longer, Theresa’s lawyer Richard H.Brown obtained bail for her until a new trial was scheduled (New OrleansDaily Crescent, November 22, 1856; New Orleans First District Court,1855b). There is no record of Theresa Smelser ever being tried again.Scott was sentenced to life imprisonment at hard labor, appealed his caseto the state Supreme Court, but was denied a new trial and sent to the pen-itentiary in June, 1857 (New Orleans First District Court, 1855b).

Kitty’s slave tribunal was not convened until March, 1857. There isno evidence as to what caused the delay for her. When the tribunal fi-nally convened, justice was swift for Kitty. She was tried and foundguilty in one day and sentenced ten days later. R. H. Brown also de-fended Kitty and appealed to the Supreme Court on her behalf (Louisi-ana Supreme Court, 1857; New Orleans First District Court, 1857).However, she too was denied a new trial; she joined Adam Scott for lifein the penitentiary in January, 1858 (Board of Control, 1859, p. 30).

THE SCENARIO OF HOMICIDE:GENDER AND RACE CONSTRUCTIONS

The intriguing case of the Smelser poisoning provides rich detailswhich portrays how race and gender influence the criminal justice pro-


cesses of late antebellum New Orleans, as played out through newspa-per reports and official documents. These narratives suggest that it wasnot surprising that Adam Scott and Kitty were sent to the penitentiaryfor life and Theresa Smelser was freed.

Historically, women often have been spared from paying the pricefor their criminal behaviors. In fact the great differences between maleand female incarceration rates can be accounted for in two major ways.First, women simply have never committed crime at the same rate thatmen do. Second, the “chivalry hypothesis” (Simon, 1975; Steffensmeier,1980) suggests that men have always protected women from the conse-quences of their deviant actions and agents of the criminal justice sys-tem who were traditionally all men, have been reluctant to see womenas criminals. On the contrary, they see them first as their own wives,mothers, and sisters. Accordingly, police, judges and juries could notpossibly arrest, convict or sentence, wives and mothers. Women whocommit the same crimes, therefore, did not go to prison at the same ratesas men. However, this chivalry hypothesis applies to only somewomen–“ladies,” white middle class women. There have always beenwomen in prison and they have consistently accounted for at least 4-6percent of the prison population (Gilbert, 1999, pp. 233-34; Henriques,1995, p. 68). As in this case, the majority of women who have gone tothe penitentiary in Louisiana have always been women who resembleKitty, figuratively and literally.

We will now examine the newspapers’ portrayals of the three offend-ers illustrating how easy it was to convict Kitty and Adam Scott and re-lease Mrs. Theresa Smelser. This is a clear case of the “chivalryhypothesis” operating for a middle-class white woman. Even while thenewspapers were initially reporting the facts of the case, including aheadline “Horrible Affair–Adultery and Murder,” they exhibited unbe-lievable reluctance, perhaps an outright refusal, to even name Mrs.Smelser, much less portray her as a criminal (New Orleans Daily Cres-cent, July 16, 1855). Initially, the newspapers reported the chargesagainst Kitty alone; one paper observed that a slave had the audacity toeven think about accusing her mistress: “A charge of murder too hei-nous almost for belief, was made on Friday, a slave against her mistress. . . of having poisoned her husband, Mr. Smelser” (Daily Orleanian,July 17, 1855). But for the first couple of days during the inquest, thepapers provided little additional information, and in some cases alludedto the fact that they didn’t want to implicate people incorrectly. The July16th, 1855 (frontpage) Monday afternoon edition of the Daily Picayune(1855) stated that although they had been in possession of the reports


since Saturday they did not publish them for the following reasons:They had been assured by Capt. Moynan that “publishing them couldnot but tend to defeat the ends of justice, and of fearing to do injustice toparties involved . . . ” The next day’s morning edition of the DailyOrleanian (July 17, 1855) echoed essentially the same attitude: “Untilthe inquest has terminated it would be impolitic and unfair to allegeguilt against the parties said to be concerned. . . .”

On July 16th, the New Orleans Daily Crescent (July 16, 1855) re-vealed Kitty’s story which claimed that Levi Smelser had died of ar-senic and chloroform, “administered through the joint agency” ofTheresa Smelser and Adam Scott and that an “illicit intercourse” be-tween Mrs. Smelser and Scott had existed. The next day the paper re-cants that report in the following manner,

We have been told that much injustice was done to the parties ac-cused by the negro woman [by the publication of our report]. . . . andthat Mrs. Smelser and Mr. Scott are very respectable people. . . . Wewould not, knowingly, do injustice to any human being, rich orpoor, great or small and nothing affords us more satisfaction thanbeing able to repair a wrong unwittingly committed. Thus much injustice to ourselves, and to the persons aggrieved by the reportgiven. . . . As the trial progresses . . . we shall take especial care thatall parties shall have full justice meted out to them in our columns.(New Orleans Daily Crescent, July 17, 1855)

Not two articles later, in the same column, is the report of Adam Scott’sarrest (New Orleans Daily Crescent, July 17, 1855), with no mention ofMrs. Smelser.

The Louisiana Courier (July 18, 1855) of the next day also is circum-spect when it reports Scott’s arrest:

Many curious things have come to light, we understand, but as yetthe veil of secresy [sic] has not been lifted, and we are not allowedto speak.

Of all the newspapers, the New Orleans Commercial Bulletin ap-pears to be the most conservative in reporting the details of the inquestand accordingly the most protective of Mrs. Smelser. As late as July 28,(New Orleans Commercial Bulletin, July 28, 1855), even on the dayMrs. Smelser was arrested, the paper reports that the inquest was com-pleted but still does not name her. In fact, it seems to intentionally omit


mention of her. First the article summarizes the case and reminds read-ers that Levi Smelser’s slave “Catharine [sic] accused a man namedAdam Scott and another person referred to in bringing about his mur-der.” It also reports that the “inquest findings inculpate both Catherine[sic] and Scott.” (Note that this paper still has Kitty’s name wrong.) Thearticle continues: “This much we are at liberty to say. We are in posses-sion of other facts but for certain reasons at present forbear giving pub-licity to them” (New Orleans Commercial Bulletin, July 28, 1855).

Moreover, even at the beginning of the arraignment, the New Or-leans Commercial Bulletin continues to be careful in the way it presentsthe information about the case. Although the paper observes how awfulit is that a murder could be planned with assistance of the wife, it con-cludes with a statement alluding to a hope that the facts may “disclosethe innocence” of all, and moreover, that all are considered innocent un-til he or she is found guilty. Note the purposeful “she” which suggeststhat the paper doesn’t want to label Mrs. Smelser guilty, never mind callher a murderess:

We have no disposition to prejudice the public against the accusedin advance of any decision by the Courts. It is a horrible crime thatwith which they are charged, a cold, calculating, deliberatelyplanned murder, the murder of a husband with the connivance andapprobation of the wife, and most sincerely, for the credit of ourcommon nature, do we hope that a rigid examination into all thefacts may disclose the innocence of the parties accused. At allevents every one by our laws is entitled to be considered innocenttill he (or she) is found guilty. (New Orleans Commercial Bulletin,August 8, 1855)

Finally, realize that Kitty was arrested immediately, as soon as shetells about the poisoning, and that within the very first days of the in-quest, a precautionary affidavit was prepared to arrest Adam Scott be-cause the authorities were so anxious to take him into custody. TheresaSmelser was not arrested until the day the coroner’s inquest verdict waspublished, some two weeks later.

Not only did the papers constantly caution readers not to be too quickto find Theresa guilty, but from her arrest, throughout her court appear-ances during the examination and much later at the trial, Theresa wasconsistently portrayed as a cool and composed woman who could notpossibly be guilty. Upon arrest, Theresa Smelser “betrayed no alarm, orexcitement . . . only complained that she was the victim of a conspir-


acy” (New Orleans Daily Crescent, July 28, 1855). The New OrleansDaily Crescent (July 30, 1855) described her as follows during the ar-raignment:

[Mrs. Smelser] is a neat-shaped, middle-sized woman, apparentlyabout thirty, with a not over-prepossessing countenance. She wastastefully dressed in black, with a black veil; listened to the read-ing of the affidavit in the coolest manner possible, and had nothingto say.

Mrs. Smelser “looked well, seeming perfectly unconcerned” re-ported the New Orleans Daily Crescent during the examination (August8, 1855). The day the prisoners were turned over to the First DistrictCourt for trial, Mrs. Smelser “took matters quite cooly” and “showingno more emotion” than she had during the progress of the examinationwas removed back to the parish prison knowing she would have a longwait for her trial (New Orleans Commercial Bulletin, August 11, 1855;New Orleans Daily Crescent, August 11, 1855).

When they finally came to trial more than fifteen months later theNew Orleans Daily Crescent (November 21, 1856) observed:

Adam Scott and Mrs. Smelser appeared . . . looking none theworse after their long incarceration. . . . Mrs. Smelser wore the airof statue-like indifference that has characterized her ever since herfirst arrest. She wore a plaid silk dress, a brown mantilla, and awhite bonnet.

Clearly, a woman who knows how to dress “tastefully” in black mourn-ing clothes, who is perfectly unconcerned and who exhibits an “air ofstatue–like indifference” could not possibly be guilty of such a heinouscrime. Moreover, “It would be a shame to hang a woman,” as the familyphysician Dr. Batcheler observed (New Orleans Daily Crescent, No-vember 22, 1856).

These characterizations of Theresa may in fact suggest other conclu-sions–in particular that she was an uncaring wife now quite capable ofmanipulating the courtroom scene to sympathetic advantage. The cov-erage could mask an ambivalence in the portrayal of gender images. Inany event, any uncertainty is surely bound to the status of her murderedhusband.

Perhaps Theresa was guilty of nothing more than the illicit affair withAdam Scott. If Paul Haller’s testimony is true, however, she was clearly


part of the whole plan from the start. Although not published in the pa-per, two days after Levi Smelser died, Theresa had a copy of the willmade. And the next day Judge Lea of the Second District Court orderedthe succession opened on her petition (New Orleans First District Court,1855b). In less than two weeks, she moved with her paramour AdamScott to the new house. Beyond the romantic liaisons, they were ob-served replacing old furniture with new.

Mrs. Smelser was certainly there and knowledgeable about the poi-soning attempts. And from all appearances, she was thinking and actingin ways to procure her inheritance in a speedy manner. Perhaps thenewspapers did not know all these details. Nonetheless the press was re-luctant to condemn the white middle-class widow of “an old and re-spected citizen” of New Orleans (New Orleans Daily Crescent, July 16,1855). So, indeed were the authorities. Rather, Kitty, the slave, andAdam Scott would pay the consequences.

Again the press was initially slow to condemn Adam Scott, althoughthey did report the facts of his initial arrest (to aid in securing custody).At the same time, however, the New Orleans Daily Crescent apologizedfor revealing the specifics of Kitty’s story and stated that both AdamScott and Theresa Smelser were respectable people. Scott also was por-trayed as “perfectly unconcerned” (New Orleans Daily Crescent, Au-gust 8, 1855), “took matters quite cooly” (New Orleans CommercialBulletin, August 11, 1855) and showed “no more emotion” being takenback to prison than . . . during the progress of the examination (New Or-leans Daily Crescent, August 11, 1855).

When they appeared for trial neither Mrs. Smelser nor Adam Scottlooked “none the worse after their long incarceration.” Moreover,“Scott appeared cool, collected and good humored . . . ” Furthermore,they were lauded for not leaving town when they “had ample time to es-cape from the city, had they felt disposed to do so” (New Orleans DailyCrescent, November 21, 1856). Finally, this same Daily Crescent arti-cle discusses at length the many opportunities which Scott had to escapefrom the prison. Scott, however, claimed that “he would never leave theprison even if the gates were thrown open, until a jury should declarehim innocent.” For all the good the papers had to say about Scott, therewas an overwhelming amount of space devoted to the incriminating tes-timony. The minute details were printed over and over again describingScott’s role in the crime. Scott bought the arsenic and the chloroform.He assumed control of Smelser’s business immediately. He also hap-pened to be one of the witnesses at the opening of the first successionand the inventory. The press and the authorities could hold Scott ac-


countable for almost all of the planning and execution of this terribledeed. They also allowed a measure of culpability for Kitty.

The very first newspaper article about this case reported simply thatKitty was arrested for poisoning her master (Daily Orleanian, July 15,1855). The same day’s Daily Picayune added that it was accomplishedwith arsenic and chloroform. Kitty, the slave, had committed a “Hei-nous Crime,” that of poisoning her master and even more awful, she ac-cused her mistress of the crime (Daily Picayune, July 15, 1855). Asalready noted, the complete story eventually emerges, and as it does,Kitty appears to be less guilty, not only according to the facts, but also inthe media’s portrayal of her.

Kitty likely had little to do with the crime beyond prior knowledge.Although one of the papers suggested that the courts would take intoconsideration that she had told all and implied that punishment wouldbe lenient, such was not the case. She may not have been executed for acapital crime. New Orleans exhibited great reluctance to imprison orexecute women, free or slave, during the antebellum era.3 However, thecity was not lenient with Kitty.

Not surprisingly, the press included little about Kitty. In the begin-ning, the New Orleans Daily Crescent (July 16, 1855) observed thatKitty told her story, no matter how horrible, “with a plausibility and aseeming remorse that cannot be rejected.” Amazingly, not only did thepress give credibility to a slave’s testimony but the criminal justice au-thorities did also. And even though there was “difficulty with the insuf-ficiency of a slave’s confession to implicate a white person,” within afew days, the police had enough evidence to call for a coroner’s inquest,and exhume Smelser’s body (New Orleans Daily Crescent, July 16,1855). Moreover, the New Orleans Commercial Bulletin’s report ofAugust 11, 1855, noted that Kitty’s confession would be entitled tosome benefits, implying a lesser punishment. Kitty’s story about theplanning and implementation of the murder was repeatedly detailed inthe newspapers even though the Recorder noted that Kitty’s “statementshould not be taken . . . in order that it might not in any way be illegallyused to the prejudice of Scott and Smelser, against whom it could not bemade evidence” (Daily Picayune, Aug. 8, 1855). Yet this slave’s storywould eventually lead two of the three alleged offenders to the peniten-tiary for life. Sadly one of them was Kitty.

We hear the story but get few personal glimpses of Kitty. At onepoint during the examination it appeared she wanted to say somethingand “the Recorder refused to hear” her (New Orleans Daily Crescent,July 31, 1855). The New Orleans Commercial Bulletin (August 11,


1855) reported that she was “more restless and uneasy [than Mrs.Smelser].” At another point. Kitty was “watching and listening to theproceedings with straining [sic] eye and ear and an anxious counte-nance” (New Orleans Daily Crescent, August 8, 1855). We know whatshe looked like only from the conveyance records of her sales which de-scribed her as a mulatto, yellow, and in one sale as griffe, indicating shewas light skinned and may have had some Native-American features.4Those records also reveal that she was worth as much as $825 and as lit-tle as $500. The same sale records which reveal how frequently she wassold in a two and one-half year span, also suggest that Kitty was proba-bly not a woman who wore the chains of slavery easily. The frequentsales, especially a loss of $300 in one case, indicate that her ownerswere not happy with her. We might guess that Kitty was a woman whoengaged in acts of day-to-day resistance, probably not grievous acts, butjust enough to annoy her owners so that they sold her quickly (White,1985, pp. 77-78 and Fox-Genovese, 1986, pp. 143-165). However, shefinally resisted in a most dramatic way when she exposed Adam Scottand Theresa Smelser to the whole New Orleans community. It didn’tmatter that Kitty may have had nothing to do with the poisoning of LeviSmelser. When she revealed the details of the murder, she implicatedherself in the poisoning of a white man. Even though the victim wasn’ther owner, Kitty had been associated with an act which was the ubiqui-tous fear of the slave-holding community. Accordingly, Kitty’s final re-sistance led to yet another sale. Valued at $800, Kitty was eventuallysold to the state, and sent to another home–The Louisiana StatePenitentiary–for the rest of her life (Louisiana Supreme Court, 1857).5

CONCLUSION:CRIMINAL LABELING AND PATRIARCHY

As played out in the mass media of nineteenth-century New Orleans,the foregoing scenario of homicide presents multiple meanings regard-ing race and gender images. These meanings emerge over time. As wehave stated elsewhere (Dotter and Fisher-Giorlando 1997, p. 263):

The three historical actors, textual counterpoints of lived experi-ence, are constantly positioned and repositioned with respect tothe deviant/criminal act, rule enforcers, and societal reaction. So-cial control is the uncertain product of at least three stigma con-tests for audiences: Theresa Smelser as an unfit wife and slave


owner, Kitty as a lying slave, and Adam Scott as an adulterer capa-ble of impassioned murder. The power to label based on images ofgender or race is contextualized in a white male ideological dis-course of antebellum slave society. Thus, we are left with the com-plex web of meaning engendered by the imprisonment of a whitemale and a slave female as well as the acquittal of a white female,herself jailed without bail for over a year.

The story is embedded in a fluid patriarchal narrative which framesthe actors and their relationship to the murder of Levi Smelser.Contextualized in the criminal justice system and general social struc-ture of nineteenth-century New Orleans, the scenario as reported in thenewspaper press becomes an instance of “public patriarchy” (Walby,1990). Domestic familial relationships, turned murderous, are trans-muted into news for consumption by society-at-large.

This scenario of homicide is a multilayered narrative of deviance la-beling. Central to its mediated creation is the concept of “stigma con-tests” (Schur, 1980), whereby images of gender and race are interwovenas stigmatized master statuses (Becker, 1973). These contests are fun-damentally patriarchal but nonetheless open to multiple interpretations.In particular the voices of women and slaves were muted in the antebel-lum South. As we demonstrate, mass media accounts are a rich histori-cal and cultural source of their experience.

NOTES

1. See Randell Hunt’s campaign speech for state Attorney General. Hunt was run-ning on the Know-Nothing ticket and was also one of the three lawyers on Smelser andScott’s defense team (New Orleans Commercial Bulletin, August 16, 1855).

2. Schafer (1986, p. 1251) disputes any humane interpretation of the Louisianaslave code as illustrated in her examination of “the Louisiana system for criminal trialand appeals of slaves.” We agree with her. However, the specific substitution of im-prisonment in lieu of execution could be considered humane in light of the fact thatmost other Southern states did not allow for such an option. On the other hand, life im-prisonment could have meant a slow death sentence. Schafer cites three court caseswhere deaths occurred as the result of local jail conditions. Moreover, seven out of 62women died in the Louisiana antebellum penitentiary, six of whom were slaves(Fisher-Giorlando, 1995, p. 24).

3. Although the majority of women admitted to the penitentiary during this sametime were slave women, only a few slave women came from New Orleans(Fisher-Giorlando, 1995, p. 24).

4. Griffe is a mixture of black and Indian (Hall, 1992, p. 262).


5. We do not know what happened to Kitty. Neither she nor Adam Scott are in-cluded in the list of state convicts in the Parish Prison (New Orleans) in the House ofRepresentatives’ Penitentiary Committee Report, February, 8, 1865. It is believed thatthe slaves were released at some point after emancipation. However, there are manypeople listed without last names on the February 8th report, indicating they wereslaves. On the other hand, by 1862, at least six convict slave women had died in thepenitentiary, so we do not know if Kitty survived. Nor do we know what happened toAdam Scott (Fisher-Giorlando, 1995, p. 23; Louisiana Legislature, 1865).

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______. (1851b). Winnie Davis, a negress slave. Conveyance: B. M. Campbell to Mis-tress Thirza Houghton wife of Levy Smelser, June 11, 1851, in the records of A.Barnett, notary public. New Orleans: Notarial Archives, Civil District Court.

Becker, Howard S. (1973). Outsiders: Studies in the Sociology of Deviance. EnlargedEdition. New York: Free Press.

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Brown, Clement. (1854a). Smelser, Levi. Last Will and Testament. August 21, 1854,in the records of Clement Brown, notary public. Notarial Act No. 107. New Or-leans: Notarial Archives, Civil District Court.

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Murder in Black and White: A Crime and Media Story in Antebellum Louisiana

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