State v Phillips
In June 1886, James Phillips was tried for the murder of his wife, Eula Phillips. The transcript was written in cursive shorthand. Below is a transcription lightly edited for readability. To view the original document, visit www.traviscountyarchives.com or reach out to us directly for a line-for-line.
Key
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Many misspellings have been left alone
State of Texas
v
James O Phillips -
Statement of facts-
The state introduces the following witness-
1 Mrs. James Phillips ()mother of defendant James Phillips
A map is shown her which she recognizes as a substantially correct diagram of the premises where Eula Phillips was killed-
(clerk will reproduce the map)
The defendant on Dec 24, 1885 with his wife Eula and child lived with me and his father in half of our house on west Hickory street Austin, Texas. My sons wife was named Eula Phillips, she is dead and buried. I saw her dead body on Christmas day 26 dec 1885 sometime after breakfast -
in my house in Austin, Travis County. On the night before I saw her at about the hour of 11 o'clock pm. She was then in her room in the bed - laughing - with her husband (defendant) and her child. Her bed was in the SW Corner of the room against the wall at head and south side. She was in back of the bed next the wall - her husband the defendant on the front and the child between them - I went into their room with some apples and candy and with a toy.
The toy I did not understand how to work and I got the defendant to show me - it was for one of my grandchildren - I was not undressed but had my clothes on - from my room I had to hop along a gallery to reach their room - through a door to it - which was fastened by a lock - not a lock - the lock could be unfastened from either the inside or the outside of the room - There was a bureau against the east wall of the room, opposite foot of bed - and a light (lamp) on the left hand side of the bureau - a window was opposite about the right hand corner of the bureau.
There was a door and window on the west side of the room opening out on the ground - also a window in the NW corner of the room. The door in west of room was closed - it has a lock but no key - There was a warming stove behind this door and so close, the door shutter comes not open save far enough for a person to go in sideways - There was a small table near the head of the bed. The room was small, say about 12X14. When I last saw Eula alive, she was in the bed with her husband as before stated the child between them - their faces were toward each other - his right arm extended her head resting in his hand and the head of the child on his arm.
When I came into the room after the tragedy Eula was gone - and the defendant in bed rather in the middle - wounded - his hands moving frantically over his head - This hour I think was about 12:30 o'clock - There was an axe on the front of the bed - the blade near the hips or waist or waist of the defendant and the handle extended toward the feet - the axe was lying on the sheet -and the handle somewhat bloody - the cover of the bed was up to about the defendants -waist and pulled around him - his pillow was saturated through with blood - the pillow on which Eula had laid had on it some blood but not much - This blood was on the end of the pillow next to the defendant. The blood had run down by the side of the defendant to about the middle of the bed lengthwise and then run through on off the bedding to the floor - the axe was ours - the end of handle (aide?) lay on the bed was about one foot from the foot of the bed - the axe usually was kept at the wood house not far from where the body of Eula was found - inside the yard - don't know whether the defendant knew where the axe was usually kept - he did not keep his wood with ours - he bought his wood already cut it’s proper length - the axe staid ()stayed about 30 feet from defendant - west door - I am quite sure there was blood on Eula’s pillow - defendants pillow was so saturated with blood it was afterward burned. Eula’s was not burned. If anything beside the defendant's bloody pillow was burned, I know nothing of it. There was no blood on her side of the bed - . The blood extended to about the middle of the bed.xx.
The axe was on the sheet and so was the defendant - it was not in the covering. The covering was on the defendant up to his waist and pulled around him. The blood was not quite but nearly to the middle of the bed - that is about to his hip. The end of axe handle extended much nearer the foot. Axe handle had blood on it - blood did not run on to it - it was put there, may have put it on there myself with my hands. I picked up the axe from where it lay on the bed and set it aside. I cannot now be exact in regard to particulars. That then occurred, my mind has been much astounded and I have gone through much trouble since that night.
My recollection is now that there were no distinct tracks inside the house - I stated on a former examination that there were tracks, two - one that pointed on I thought towards the door - and the other toward the head of the bed and partly toward under the bed - but on further examination I became uncertain and am now uncertain as to whether the impressions I saw were tracks -: being asked directly - Were there bloody tracks by the bed and answered - I saw one track by the foot of the bed - but went back and could not tell which way they pointed - also saw what I thought was another track but on a subsequent search I could not find it - There were bloody tracks on the gallery.
Eugene Deaty (grandson) was sick that night - he is 8 years old - Katy Deaty was also there at our house - Eugene had been sick 4 or 5 days - That was the 3rd night I had sat up - He did not go to the Episcopol festival - The oldest of the Deaty children is 13 years old- the children that night went to a sort of party at the Presbyterian Church - We all might have gone had Eugene not been so sick - Eula did not go - she was in the house during all the day and night up to the hour of about 11 o'clock PM. When I testified before I did not know Eula’s pillow was bloody - this fact came to my knowledge afterwards about the 15th or 20th March - I was away from home after the arrest of the defendant -at the jail where he was until he was bailed about 15th March - Before he was arrested I was in constant attention on him - anda great many persons visited the house and I had not time or inclination to look into these matters until he was bailed. His own pillow was burned about the time he was removed from the room where he was wounded into another room - He had several pillows under his head after he was wounded - The two pillows on the bed on 24th December where Eula’s - They were differently made to mine and This is the reason I knew one was burnt and that The other had blood on one end of it.I don't know where the blood came fromThat was on Eulas pillow - whether it was her blood or blood from the defendant - there was no blood or if any very little on Eula’s side of the bed - the track in the house - and whether it was a track I am doubtful - was near the foot of the bed and on the side of the bed (under) - It showed no toes - it was a flat foot and appeared to be going toward the head of the bed . I examined another blood impression near the head of the bed but could not identify it as a human track. All tracks I saw were barefoot tracks.
After the killing I was nursing the defendant. There was nothing done that I know of to obliterate the blood stains in the room - on the carpet - other than natural causes - fading etc - They can be seen there now.- no one has occupied the room since that night - the defendant has a fiddle - did not have one after he was wounded - Steve Mckinney brought one to him - he has played the fiddle some since he was wounded. The defendant asked me where his wife was - This after he was wounded - but not on the night of the night of the 24th December - I told him his wife was dead - he then said “I’ll go to hell” - there was blood of the floor of the room - room had carpet on the floor - the blood on the floor was from a few feet in front of the bed to the wall. The red dotted line on the map is intended to represent the line of blood from defendants door to the spot where body of Eula was found - the way it the body was carried - the blood stains in the room commenced near the bedside and spread over the room to window say 3 to 3 ½ feet to the wall. When I returned to the room after leaving it at 11 P.M. the light (lamp) was on the bureau - same place - but had been turned down low - so much so that I could not distinguish that it was blood on the bed - I got light from my room and then saw it was blood on the bed. I can't say when it was I moved the axe from the bed, whether when I first went in or when I returned with the light - I was very much frightened and excited - I could have turned up the light of the lamp in the room instead of going to my room for another - but I did not think of it at the time - yes I was much excited during the whole night - I am well satisfied the axe was not in the room of the defendant that night - on the contrary am satisfied it was at the woodhouse where it staid - I had never known of it being in his room until I found it on the bed that night.
When I went to my room for a light my light was burning - had been burning all night - I had been sitting up with the sick child. The defendant and Eula had been married about three years in January - they first lived at our house - then moved up to Williamson County to the farm of George McCutcheon - moved there in Jan 1885 and returned to our house I think in Oct of that year - they did not separate as husband and wife after returning - they were not fixed however to keep house - and I suggested to Eula to make her kin people a visit until the defendant got prepared to keep house - they both wanted to keep house.
The defendant was not doing well - that is he was drinking - and I suggested that if she Eula would go to her kinfolk, or if she had left him he would probably get straight and prepare to keep house - the night before she left there was some trouble at the house. The defendant came in tolerably late - was drinking - she came through my room and went into that of my daughter Delia - I heard no noise prior that - He in some way offended Delia and she struck him over the face with a shovel and ran in her room locking the door - He tried to open the door, and failing kicked the panel out of the door - Eula and Delia ran out in the yard and called for the police -
It was the next morning she started to her kin folks at Manchaca in Hays county -
Question by the state - Did she [Eula] not go to Fannie Whipple?
Answer - no- not that I know of - Prior to the fuss just mentioned on that night Eula had been in her room - but after that she remained balance of night in my parlor - This was some 6 weeks or two months before the 24th December/85 - She left the next day. A negro woman came after her (Eulas) clothes . I wrote her a letter telling her to come back that Jimmie (defendant) was not angry at her - She came back - on a Saturday and stopped at her sisters Mrs. Creary’s again on Monday. She went to Elgin Bastrop Co. to some other relative - and remained there as I understood two weeks - when the defendant and his sister Mrs Crearys went after her and brought her and her child home. In all she was gone about three weeks from my house. She returned some four or five weeks before the killing - Mrs Creary lived about 2 or 3 blocks from me - it was her children who were with me -I know Eugene Maguire and John.
Question by State - Did not you, your husband, Maguire, Delia your daughter, John Penn and the defendant have a conference on your gallery a few nights after Eula was killed - and at that conference was it not agreed that Delia should be taken away from Austin so she could not be used as a witness against defendant on the charge of having killed Eula?
Answer - Some men were at the house but no talk was had nor agreement made about that matter. It was on saturday night - on that night Delia went to her sister’s Mrs. Creary’s - none of the family went with her - the next day I think it was she did leave the city and was gone about three weeks and returned and was examined as a witness at defendants examining trial.
Question by State: Was it not agreed that night - defendant being present - that Delia should leave to avoid telling what she knew - and was she not offered 1000 dollars to leave?
Answer - Not a word of it is true - We did not tell the defendant where Eula had gone - not because we were not ready for them to go to housekeeping but because, we hoped her absence would influence him, to amend his habits - never heard of the defendant hurting her - knew when Eula returned from Manchac, defendant went to Mrs. Crearys to see her - He was Harmed. he may have had a pocket knife or old one- which he used in cutting tobacco - Eula did not return with him - but she came over the next day - defendant begged her not to go away again and said to her if she had any heart, she would not leave him - She left and went to Elgin as stated- and in two weeks returned with the defendant and his sister Mrs Creary - when they went to house keeping - If the defendant and Eula had any fuss or misunderstanding after her return from Elgin I never heard of it. The defendant ceased to drink - and had a job of work in (Firemans) Hall AustinEula Phillips was killed at my house in City of Austin in Travis county on the night of December 24th 1885
Cross examined = While Eula was gone to Elgin, the defendant bought a new set of bedroom furniture from Messrs Booth & Sons, who do business on Pecan St Austin, on installment plan, and had not finished paying for it when Eula was killed. Eula had kinfolk at both Manchaca and Elgin where I thought she was visiting during her two absences. When the defendant replied to me, when I told him that Eula was dead “Then I’ll go to hell” I spoke to him soothingly and he added “for I can't live without her”- the defendant had not been drinking any for 4 or 5 weeks prior to the killing - He had been drinking but no great deal before we advised Eula to visit her kinfolks. Defendant finished had finished his job on Fireman’s Hall, a few days before 24th December. and had brought his kit of carpenters tools home, - and the kit was within 7 or 8 fea feet of where he and his wife slept, but in a sort of closet - In the kit were saws - chisels - hatchets - hand axes etc. The fuss when the panel of the door was kicked out, by defendant was between Delia and defendant and not between him and Eula - She hit him (Delia did) with a shovel - The door in which panel was kicked out was to Delias room - don't know where Eula was whether in the room or had passed through it Delia hit the defendant with the shovel before he kicked the panel of the door out - Some persons knew the rooms in which defendant and Eula slept. George McCutcheon for one knew, as did his brothers Beauregard and John, know Jno P Kirk - he was city - Marshall just after Eula was killed -
Question by defendant - You will now in your own way go over the events transpiring at your house on the night of the killing - Do so in your own way - and tell all that occurred in their order.
Answer. I saw both the defendant and, Eula during the evening of the 24th Dec say about 5
o'clock - they were in the house reading - she was laying partly on his lap - reading and talking -
After awhile he proposed to go down town to pay to Mr Booth installment on his the furniture - I objected to his going on the grounds that it being christmas time he would get with friends and take a drink etc - He promised to return speedily if he went - I made with him some bet of a trifling nature that he would not return in 15 minutes - . He left and did return inside the 15 minutes - by the clock - It was then about dark .
Eula came into the my room - sat down on the floor - let her hair down - and conversation was general about one thing and another - defendant came in the room - I remember part of the conversation then was about getting work to do - he had finished his last job - It was the intention of Eula and the defendant to go down to Manchac and spend christmas day, with Jim Martin, and they had made their arrangements to go down to the train Christmas morning. While we were all in my room Eula did her front hair in curl papers - After a time, I can't tell how long but on toward 10 or eleven o'clock, they retired to their room. Eula remarking at the time that she was hungry. I told her I would bring them some fruits - etc directly - It was about 11 o'clock as I remember when I went into their room with nuts, apples, etc. I found them in bed in the position I have stated in chief examination - I retired to my room - did not undress wholly because I had to be up and down with the sick child - I kept on my basque - a small shawl around my neck and breast and my stockings - having disrobed my skirt and some under garments - Laid down and had dropped to sleep lightly - and was awakened after sleeping awhile by the words in the direction of the defendants room. “Oh! Mama - Eula darling twice repeated” I jumped up and made my way into the room and found the situation as I have stated in my former or chief examination. The child was sitting up in bed crying - I took it up - went to my room as stated - returned with light - saw the blood - the axe etc. Then could went near my husbands room and called him up stating that somebody had murdered Jimmy and that Eula was gone - That I could not find her - returned to the room passed through - called for Mr George Allen stating to him about what I had to my husband - again returned to the defendants room - I can't state with any particularity what occurred afterwards- I was greatly shocked, alarmed and prostrated at what had occurred - Mr Phillips and Mr Allen both went after physicians - after awhile - not long - Dr Litton and Dr Fisher came - I had soon after the whole matter was seen laid down being from prostration unable to remain up. Before I laid down however, quite a number of people had collected citizens and officials.
Answers to questions - From the time I laid down about 11 o'clock I heard no noise whatever until the cries I repeated awhile ago - Eula had the night before put up her front hair in curl papers, and the back hair in long braids down the back -, then defendant and Eula had intended and had so arranged to spend Christmas day at Manchac - and a night with Mr `Ravens who married the defendants sister - When Eula was dead and laid out, her hair was in curls and the
curl papers all taken off - and away. except one that I found about the ear - Eula’s clothes those she wore 24th December were at foot of bed about the middle - on the floor - and a little under the bed as if kicked there by the foot - her bonnet was in my wardrobe - she had no wardrobe. The hat was in there the next day - it had not been out during the night . Defendants better clothes were hanging behind the door in their usual place - while his everyday clothes were on chair I think - the defendants razor was in the bureau in the room, where it usually lay -
Re examined by State - the defendant kept uttering the cries that awakened me, after I reached his room and until he was exhausted and until the doctors gave him something - don't know how far the screams could be heard - my door was not closed - can't say if his door opening on the gallery toward my room was closed or not - His room had no key to the lock . When I went to the room at 11 o'clock both his doors were closed but not locked - when I answered the screams of the defendant I was dressed, save overskirt and shoes. I was in stocking feet. All the tracks I saw were barefoot tracks.
When my husband reached the room he had on shoes and pants etc. he often slept in socks and pants - can't say if he did so that night - had an overcoat thrown atop his shoulders. He reached the room a few minutes after I knew of the tragedy - he had to come from his room about 70 feet - I had called to him to come - When Allen came he had on shoes - had on overcoat atop shoulders - pants and under shirt - . The tracks I noticed in the room or what I took to be tracks was after people had come into the room - can't say how long afterwards - Husband andAllen were the first person who came to the room - Brown from police station was the next person - Have known Brown since he was a baby . Husband and Allen both went after Doctors - I don't know when body of Eula was found - don't know of any hunting for it.
Re-cross -I did not know Eula had gone to the house of Plully Wipple. My information was that she had gone to Manchac .
Question by juror: When you came to the room and found defendant wounded etc, did you go to the outer door- or on the gallery where the trail of blood and the bloody tracks were afterwards found.
Answer - No I did not go to that door.
2 John Abrahamson-
I lived in the Phillips neighborhood on 24 December/85 - I was in town that night - I was passing the Phillips place that night, I was on the south side of the street that runs by said place on the south.I heard cries of a child when I was about midway the block opposite the Phillips block - and I then heard a voice as I thought of a man saying as I understood it “hush darling” -(a child was crying)- the voice was hoarse not clear - the words were repeated two or three times - two other men were with me - we listened - saw a light struck and where it streamed out on the gallery.
Did not see a light at first - Just as we saw the light I heard a woman’s voice “Mercy Me Murder” - Chas Lindell and Cato Westbrooks were the men with me - we went to police station in a hurry and reported what we had heard - one of the station men was man named Brown - He went to Phillips : and we with him - went in past track -, did not go further than the door of room where wounded man (defendant) was - Think there were people in the back yard - I did not go about any and did not stay until the dead body of the woman was found - First words I heard as I understood them were “Hush darling” and a baby crying - The words were repeated once or twice - then light showed through the window -and on to gallery - then the words “mercy me murder”.
Cross examined- The width of street (80 ft)and the distance from the north side of the street to the house etc were between us and the voices - say 95 to 100 ft . When we heard the voice of the woman say “Mercy me murder” we allran to the police station which was on the next block. Distant say 200 yards more or less - did not take us long to get there - This was between 12 & 1 o'clock at night. The voice that said “hush darling” sounded like that of a man in danger - it was not a clear voice . The words “mercy me murder” were in womans voice - There was no light that I saw at first - saw that light when it streamed out on the gallery - and then the last above words .
3. Henry Browns .
I was night clerk at police station on 24 December/85 - Three young men came into office John Abrahamson and two others and gave alarm - this near 1 o'clock - I went to phillips house - and found defendant on bed in blood. Went into room - his mother there - I had on shoes - saw axe in the corner leaning against the wall - axe produced and identified - Axe in condition now as it was then save blood now dry on handle was then fresh - When I got there old lady Phillips was sitting indorrs with a child in her lap . I took axe to station - Grooms Lee came in - left him there and and went after the City Marshal found him and told him - Marshal ordered me back to station - I traveled a mile and woman had not been found when I returned - When I went in the room, defendant asked me what I wanted - I told him I was an Officer, and he told me I had better go away - some of the Phillips family reported the killing to the police station.
Cross examined - I traveled rather briskly I was 20 to 25 minutes making the trip from station to Phillips - from Phillips to Hancocks and back to Phillips - I did not go into the room where the defendant was when I returned from Hancock’s . I left the three young men Abrahamson et al at Phillips, when I started to Hancocks and requested them to stay till I returned - did not see them on my return defendant was lying on the bed and seemed to be unconscious - He did not raise up- I asked him on my first visit - who done it (wounded him) - but he would give me no reply - made no reply - said nothing - when I first went in he talked -and talked with his mother then - I again spoke to him -and asked who did this He said “who are you?” I said “an officer” He then said “You’d better leave” - I again asked him, but he would not answer me- He was lying near side of bed with his face rather out - was on his side and back - I saw the wound on the head - he was lying on neither side - Wound was on left side of head - He was lying on his back and rather inclined to his side - I thought him unconscious from his looks - blood was on the floor - He did not notice the three young men who were with me. I remained only 3 or 4 minutes - He did not get up - He said to me, “You’d better go away” This was the last he spoke to me - the last from that day to this - I have known him for many years. We were both raised here in Austin and knew each other well.
4 Fanny Whipple - (cold) ()colored
I lived in Austin last December and knew the deceased Eula Phillips .
She came to my house five or six weeks before she was killed - she came with Delia Campbell, who is sister of the defendant - they came in the morning - remained that day - all night all next day and the next night until about 2 o'clock. She sent me for her clothes and I went to Mrs Phillips house for them - got them from Mrs Phillips the old lady who has been a witness. I took the clothes to my house. She left my house (Eula did) about2 o'clock on the 2nd night after coming - don't know who left with her, except Mrs Delia Campbell and a man - who the man was I do not know- never saw `him `no one visited her at my house - I did not keep an assignation house at that time.
Cross examined - I was tried for keeping an assignation house after Eula Phillips was killed - I beat the case before Justice Purnell ()JP Thomas Purnell- so officers of the law promised me immunity from prosecution if I told all I knew about Eula Phillips -
5 May Tobin
I lived in austin Dec 24 / 85 and knew Eula Phillips - lived down on Congress Avenue, then and live there now - Eula Phillips was at my house latter part of November/85 at night-came there with Mr. Dickenson about 12o'clock at night - she remained there that night - and the next two days and nights - She went from my house to Manchac- in the time she was at my house no man visited her except the man Dickenson, who staid ()stayed with her, the three nights - they slept in the same bed. I saw her at my house on the night of the 24th of December 1885 - can't tell the hour but guess it was between 10 and 11 o'clock - she did not come in - knocked at my window - I asked who was there - She said Eula (that you know well) - I got up went to the door - saw no one with her - she remained but a few moments - I did not let her have a room - did not have one - I heard the next morning of her having been killed - This was on the night of 24 December - can't tell how many hours after she was at my house before I heard she had been killed - but it was about 3 o'clock next morning -
Cross examined- I first knew Eula in November 1885- I had seen her before Dickenson came with her - that night - can't tell what time it was, only it was in forepart of night - Dickenson with her that time also - don't know how long she remained - Dickerson is Secretary of the Capital Board - He did not stay with Eula during the two days she was at my house, only at night - She was alone during the day, no one visiting her - She was there at one time in the day - a man came with her - don't know his name - was introduced to me as jones - he was young man - don't know his occupation - don't think jones was his name - She was at my house several times in the day time - one day with Mr Shelley - at another time with Mr. Baker who has something to do with the schools - I keep a house of assignation - The officers have assured me I should not be prosecuted if I would tell all I knew about Eula being at my house - The City Marshal Mr Lucy - and Mr Robertson The Dist Atty so assured me . At first I thought I would not be brought into the courthouse -and when ordered in I protested and remonstrated with Mr Robertson - but he assured me it would be all right - the exemption from prosecution was assured for no particular time -
Reexamined- The Dist Atty said to me - “you tell the truth and you’ll not be hurt - I will protect you —
6 R B Eanes
I am the uncle of Eula- I saw the defendant last November looking for her- came to my house and asked if I had seen her - that her and he had separated - and that who ever protected her should suffer. He had a knife in his hand. He took the knife ready opened from his right hand pocket - he flourished the knife around - This was before he went to Elgin after her- Asked me if I knew where she was - I had not heard of the separation - He said he would kill the person who sheltered her .
Cross examined: This was the day after she left home - and between 3 & 4 o'clock PM. He was drinking - He asked me what to do - I told him to go home and sober up - I think he used the word separation - but am not positive - he may have said she had left him .
7. Albert Highsmith -
I live at Hutto Williamson county- Knew defendant and his wife Eula - In conversation about latter part of Oct 1885 - several of us being present - The defendant said if he knew his wife to be unfaithful to him he would destroy her and destroy himself - This was in Williamson County on the place of George McGutcheon -
Cross examined - A man by the name of Mooney and some others were present when the defendant made above remark - the remark was casual - remember nothing of what was the subject of conversation - nothing going before led up to the remark-I have known George McGutcheon 20 years- Know nothing peculiar about his feet - never paid enough attention to them to know or remember.
8 Delia Campbell -
I am a sister of the defendant - I left Austin on the morning of 24th Dec 1885 - and went to Rosenberg junction - I was living with my mother - the defendant and his wife were going to Manchaca to spend Christmas day- Eula was not true to her marital vows - I have seen a man in bed with her - George Dickerson - never saw anyone else - this was in latter part of November last.
Cross examined- I saw Eula and Dickerson in bed together at May Tobin’s just before Eula went down to Manchaca - I never saw her there with any other than Dickerson - Dickerson was the man who went with Eula and me from Fannie Wipple’s to May Tobin’s - Mr. Kirk furnished me with money to go away on when I left soon after the death of Eula - he was acting City Marshal - When I went away on the 24th December. I furnished my own money - it was the next time. I did not see Kirk in person - did not know him - I left ** 24th December - and returned on 26th and again left and was gone 3 or 4 weeks - the object of sending me away as I understood was to shield the married men in Austin- my parents had nothing to do with my being sent away. They were opposed to it.
Re-examined. Kirk furnished only 20$ - the party who gave it to me said Kirk furnished the money to pay my board at Houston - I had been gone about two weeks - I don’t know the object in sending me away, but supposed it to have been as stated - and I think another object was to get me away from the family so they could interview me - Eugene Maguire is the man who gave me the money furnished by Kirk - Maguire is the mail agent on the H & TC Rail line and is here every other day - I know him and his business and are friends.
2nd Cross - On the Saturday night before I left the 2nd time I had no conference with any officers nor persons where the defendant and my mother and father were present either at our house or anywhere else - I did have a talk at our house where Eugene Maguire and John Penn were present - but no one else. My parents knew I was going away - but I don’t think the defendant knew it-
9 Miss Alma Burdett
Eula was my sister - I know the defendant. I live near Manchaca with my Aunt. I visited Eula when she lived in Williamson Co, on the MuGutcheon place - defendant was jealous of his wife - of almost every man who spoke to her - I once saw him throw a cup of milk at her saying “I’ll kill you”. I ran out of the room - then went back after her. We then both came out - George McGutcheon and little boy Deaty were present - McGutcheon called us back - when we returned he and defendant were on the gallery - the cup struck the safe and was broken into fragments - the milk & sugar filled my ** We were at table eating. Defendant was before that talking loud - did not see what the defendant did when and after we left the room. This occurred in the summer of 1885.
Cross examined: After defendant threw the cup and milk at Eula they continued to live together and I know of no other fuss between them. The defendant was drinking a good deal. The reason I say the defendant was jealous of his wife is because when she would say that she knew this or that man - he would say “what in the devil do you know about that man”- I was not paying enough attention to hear all that was said when the cup was thrown - when the cup was thrown - I stepped out of the door - called Eula, and then went back for her. She was standing up as was defendant - I never saw the defendant try to strike Eula, except at that time . I have no good feeling for the defendant - About the 1st of December, or last of November /85 - Eula visited me down at Manchac, and staid several days - how many I do not remember now.
10 Sally Mack
I live in Austin not far from the Phillips place - knew the defendant and his wife Eula - know the night she was killed - About 2 o'clock Mr George Allen came for me to go over to the Phillips Place - I went directly - found a good many people there. The body of Eula was brought in and I washed her and then she was laid out in the parlor - I got water afterwards for some person - but I don’t know what for - got the water in the wash bowl - The next morning I saw the bowl with bloody water in it in the room where defendant was -I emptied the bowl - after the bloody water was poured out there was some dirt in the bottom that did not go out with the water - can’t say how much - I just saw some dirt was left in the bowl - and poured some water in - rinced it around and poured it out to make the bowl clean - I never heard any talk between det and his mother until next morning - I helped her to go in room - and defendant said “Ma-Ma, where is Eula” - She replied “She is dead” - he then said “Then I’ll go to hell”. Dr Litton told me to take her out and I did so -
11. Dr. J M Litton-
I am a physician etc. About 1 o'clock am 25th December, I was called to the defendant - found him lying on bed in a good deal of blood - and wounded about upper portion of left ear - extending in a curved line coming down in front of and below the lobe of the year. It was deepest up above the ear. It was punctured in part and contused in part - the upper part went to the bone - I found so by probing with my finger- I found the periosteum abraded and bruised - muffled by stroke of some instrument - it was night - can’t say that the bone was itself injured - defendant was on front of bed and there was a great deal of blood in front and towards middle of bed - but it was mainly on the front part - the dead body of wife had been found when I reached the place - it was found soon afterwards and when Dr Cummings and I were dressing defendants wound . We went to the dead body. It was prone on the back- head and shoulders in rather lower ground than other parts of body - the legs distended - one arm under her and the other lying out at right angles to the body - body entirely exposed to or above the waist . Found forehead broken in by a stroke up and down - from roof of nose upward the forehead - upper portion of wound sunken say 1 ½ inches into head and gradually shallowing to the lower size-wound about 1 ¼ inches wide throughout its extent.
It could have been made with an ordinary axe - the wound was necessarily fatal - there was slight wound on right ear as if made by cut or bruise - the wound in forehead was cause of death- There was faint undulations of wound on side of `her face - The wound in her ear was not serious - I found no bone broken except skull as mentioned - she would weigh a little over 1oo lbs - she was a small woman -
Cross examined - The wound on defendant I should expect to produce a great nervous shock - would expect it to disable a person for sometime - from this wound with its surroundings defendant was disabled for a couple of months - I attended him for two months for this wound on his head-
The result of the wound to him for the time I attended him was nervousness - feverish - sleepless - circulation poor - and heart action impaired . The wound near his ear was of a contused character, dividing the parts down to the bone - say ½ inch - but it was greater when I saw it because of the swelling - the wound had direction in depth toward the cavity of the ear - going directly to the bone - and the instrument used was evidently stopped by the bone - Below this deeper part the wound grew shallower as if passed down in front of the ear - The wound was large enough to admit my finger - with which I penetrated to the covering of the bone and that I found toughened, abraded, and bruised - the wound was directly into the bone not downwards. Finding things as I did the thought never occurred to me that defendant had inflicted the wound on himself - afterwards however it was discussed. It is not at all probable that the wound was self inflicted -
The effect of the wound on the dead woman was instant death - an immediate suspension of all the functions of will power, and the nervous system. I saw one garment on her as she lay where she was found - and this was on the upper part of the body - none over the parts from waist down .
The position of the body impressed me, that it had been dropped there - saw no evidence of dragging - Her knees were somewhat elevated and widely separated. I noticed her private parts- they werenot closed nor widely distended -I noticed fluid in the vagina - of a dirty whitish color, like the male semen but darker in color - in quantity about a teaspoonful - I don't think her own muscles had anything to do with the position of her legs. She was powerless - and must have been laid in that position she was placed.
Re-examined - I did not attach much importance to the fluid found in the vagina - It was turned over to Dr Cummings. I did not examine it with The Microscope - Semen can generally be identified - the presence of such fluid might have been natural - it might have been there from previous sexual intercourse that night - In speaking of the wound on the defendant I can only say as to the probability of his being able to inflict it on himself - I can’t say that it was impossible for him to have done it to himself.
Re cross examined - I say that it is improbable that the defendant could have made the wound on himself. I found on the defendant’s right side of his chest a redness, accompanied by considerable soreness. It could have been produced by pressure there of sufficient weight.
12 George MGutcheon -
I live in Williamson county - Know defendant and knew his wife Eula. Knew them first at my place in 1885 where they lived nearly a year as my tenants on farm - they came in Dec/84 and left in Oct or Nov of 1885. While they were at my house heard him say that if he had an unfaithful wife he would kill himself and her too - At one time saw him throw a teacup at her- was drinking- some one fixed up cream sugar and whiskey- his wife spoke to him, saying “Jim, you look like a fool - your eyes look that big (making circle with her forefinger and thumb) - he said “say that again - she did so - he arose and threw teacup at her across the table - it struck safe behind her and a fragment rebounded and hit her behind the ear - `invoking a scratch - Miss Alma Burdett was present and ran out of room - she called Eula - then came after her and both left - as defendant rose when he threw the cup he laid his hand (left one) on a case knife - After he threw the cup, he started to follow the women into another room into which they had gone - he turned from the door of the room and was facing the gallery on to which the women had passed - I said “stop - He said “do you interfere in my family affairs?” I answered “no - but you must stop - you are making a fool of yourself - go and wash your face and lay down.
He did stop and laid down the knife which he held in his left hand- washed his face, and lay down on the bed. The women had passed from from the gallery through another room and gone down to the `crip - I called them and they returned to the house - the defendant was drinking a good deal. After they came to Austin I saw the defendant on my way to the depot. He was going with me down there. I asked him how he was getting along - I urged him to quit drinking - that he was making himself and everybody about him miserable and unhappy. He said it was not natural for him to do so - that he did not use to mope about- have the blues and drink, but used to be cheerful etc.
On our way to the depot he asked me if I thought Eula was too fast. I replied that it is a `pretty question to ask me, and said no I think she is a good and virtuous woman - but maybe talks a little too much. He said he thought so too, but that if he thought she was invirtuous he would kill her and then kill himself. He further said that his mother said Eula was too fast . This was about the 1st of December, 1885 - I was at home on 24th of December. Was at Austin the next day, the 25th, in the evening- came down on train with her father Tom Burdett - I went directly to the Phillips place and saw the defendant - Went into the room where he was - and after speaking to him, he said “George, Eula is gone and I am damned near killed and ought to be dead”.
Cross-examined - The expression used by defendant was that his mother said Eula was too fast, not that she talks too much. The way the conversation came about was this - I had been at the house/Phillips,and we were going to depot - and I was asking him how he was getting along - I said “Jim you ought to quit drinking - and he said “I’ll try” I used to be jovial and lovely and not as I am now with blues etc - He then said George (or McGutcheon) do you think Eula is too fast - for mother thinks she is - I said that a `pretty question to ask me - “no I think she is a nice virtuous woman - but she talks too much - He then said I think so too. If I thought her unvirtuous I would kill her and myself too. The conversation or rather statement at my house about if he had (defendant) an unfaithful wife he would kill her and himself too - was casual - his wife was not the subject of conversation - I cannot tell who was present except Albert Highsmith was there. In the conversation at Austin, the defendant was drinking. He said at the time he was out of work -
Question. Is it not true that you were in the habit of having carnal intercourse with Eula Phillips, while she lived at your house in Williamson County - you need not answer the question unless you please to do so?
Answer - I decline to answer the question.
Question. Were you not in the habit after she moved to Austin of coming to Austin and seeking her for that purpose- carnal intercourse?
Answer - I did not once -
Question - When were you openly in Austin last before December 25th
Ans: Don’t know. Can't tell- but am satisfied it was after the conversation on the street. I was not in Austin night of 24 December - was at Capt `Hired Mitchells in Williamson county. He was at home - there were present Tom Mitchell and my brother Jack - and one of the `Frome boys ** I got to Mitchells about 12 and left about 12 o'clock - all of us pretty drunk - I went home - Heard of the killing the next day - I was sent for to come to Austin with Burdett, father of Eula. Don’t know the hour we got on cars. I know Delia Campbell. She visited Eula at my house last summer - I was sick while she was there part of time - I never talked with her about my relations with Eula - nor about having sexual intercourse with her - either in Williamson county or anywhere else.
I did not tell Delia that if Eula threw me off and refused to continue having intercourse with me, I would kill her. I did not tell her that at my house, in Austin, or anywhere else. I did not attempt to kill defendant at my house, when Albert Highsmith and Delia Campbell were present - either with knife or otherwise. I was not at the burial of Eula. I remained at the house where the defendant was - and at the insistence of Mr Ledbetter watched to see if I could see or hear anything that would throw light on the killing.
Question- Is it not true that at about night after Eula was buried you were in the parlor at Phillips house - and a child came in and saw to old Mrs Phillips. There were two officers at the door- and did you not at once get up and ask that you should be concealed - that the officers were after you or something of that substance occur?
Answer- Nothing of the sort occurred.
Question- After Eula was dead did you not meet Delia Campbell at Mrs Crearys, and during a talk with her say to her that if she ever told on you what she knew about you and Eula, you would kill her - and did she not say if called on she would tell the truth - and did you not angrily start towards her when she stepped to the bureau where she had a pistol - and did you not say to her “would you shoot me - and she replied “I will if you lay your hand on me - and did you not then again take your seat?”
Answer- I remember meeting Delia at Mrs Crearys, but nothing of what you ask about took place -
Question - Did you not at another time on the train meet Delia and again threaten her that if she told what she knew about you and Eula you would kill her?
Answer- I remember meeting her on the train but I did not threaten her.
Question - Did you not on two occasions buy at Dr. Tobins Drug Store Chamomile flowers, Extract of cottonwood and Ergot for Eula to aid her in producing abortion on herself, and deliver said drugs to Eula in the presence of Delia Campbell after tearing off the vial label The label off the vials?
Answer- I bought drugs at the insistence of Delia Campbell -and delivered them to her but did not tear off the labels- I can't tell how often I was at Austin after Eula moved here . My business down here was to collect some money from defendant - he owed me about 15$ and I came down every time I was here up to Christmas on that business - I was down here some 5 or 6 times I suppose, often defendant and Eula, returned here up to the time she was killed - I came to Austin about that 15$ above - That was all business I had - I got no money. I gave Eula ten dollars the day before she started to Elgin. She had no money and I gave it to her to clear her expenses down there etc. There is nothing peculiar about the little toe on my right foot .
Re-examined: On night of 24 December as stated I was at Capt H. Mitchells - there were three men here who were with me there - Mr Jack McGutcheon, Bob Mitchell and another man - I went next morning to see Mr. Burdett, Eulas father - I went that night to my brothers fathers & saw Burdett there.
Mitchells is 23 or 24 miles from Austin - I went to Mitchells in a buggy and returned in it - got home about 12-o'clock - it took one hour or less to drive home from Mitchells - I never threatened to kill Eula - I did not kill her - I did not know she was going to be killed but I did fear she would be by defendant - When I gave Eula the money, her sister Mrs Creary was present as was my brother Beauregard - she said she had no money to go to Elgin on - and I gave her 5 or 10$ - This was after her return from Manchac . She went that evening from Mrs. Crearys to Mrs Phillips after her trunk - Mrs Creary went with her - there was no concealment - but I understood she was fearful of going over - she got her trunk - and returned and said defendant had met her kindly and put his arms around her neck - I saw Eula once after this - 4 or 5 days before she was killed - She and Delia Campbell asked me to come to Austin and spend Christmas with them. My wife is dead - has been dead about one year.
Re-cross-examined: After leaving Mitchells, I went to fathers and `woked up Burdett - I `woked him because I was drinking. He did not sleep in my room - but in one across the hall from me - I had no conversation with him - I gave Eula money to go away on. I did not say anything to the defendant about it. When I talked to defendant, after he was wounded it seems to me some lady was in the room - but I can’t say who it was - might have been Mrs. Phillips or Mrs. Creary . Don’t think I sat down. After the talk I went out on the gallery - can’t say who was there - then went back in room and sat down - but had no more talk with the defendant - can't say who was in the room at the time I sat down or who came in or went out. He spoke to me in a rational manner. Yes, if I had killed Eula I would swear to it.
13. Mr S.M. Dyer .
I live on the Phillips block and knew the defendant and his wife and remember the night of 24th December. I was out that night attending lodge meeting - returned between 10 and 11
o'clock - went to bed - having noticed nothing unusual - Was aroused between 12 and 1 o'clock by old Mrs. Phillips calling me. I arose dressed and went over to the Phillips place - saw Mrs Phillips old lady - she was dressed and a child in her arms - she was dressed as I had seen her
dressed during the evening day. Did not see old Mr Phillips when he called me
nor for some 15 minutes after I went over - he was then dressed - in same clothes he had on in day time - did not see George Allen for sometime - when I did see him he was dressed as usual.
Did not see Eulas body until it was brought into parlor - Had on but one garment - night dress - Dress was drawn tight under arms and twisted into a rope - I cut the dress off - I noticed her back - looked like she had been dragged - skin was off - saw blood - sand and dirt on her hair -
Cross Examined: About six weeks before Eula was killed I heard quarreling over at Phillips house. Heard the words G- D- Damn you I’ll kill you - this in man’s voice - not the voice the defendant's father - also heard a womans voice calling for police. This was night when the defendant had a fuss with Mrs. Campbell .
2nd Cross Exam: I went to sleep before 12 o'clock and every- thing was perfectly quiet at Phillips house -
14. Wm Von Rosenberg Jr-
I am a Justice of the Peace of Travis County- heard of the killing of Eula Phillips and went there - several persons there before me - George Allen was there - After hearing of the tragedy I went in a carriage ½ mile with horse in a trot to get there. When I got there no one seemed to know where the body was. I saw blood on the gallery and `trailed the blood to the body. The moon shining brightly, I saw the blood plainly on the floor of the gallery in splotches from door down to and off steps.
Cross examined- I identified the pieces of floor with the bloody tracks on them - I cut them out of the floor from along the line of blood. I examined the fence near the body that divided the yard from the alley. I saw a small spot of blood on the fence - on the side of the plank near the top of the fence - ¾ to inch wide 1 ½ to 2 inches long - there was a piece of scantling 2 x 4 inches across the breast of the body. I think I found the body first - don't know of any police officer being there before I was. It was from 115 to 140 feet from the defendants room to where the body was found - Moon bright - but can't say where in the heavens it was. Light of a lamp showed through the window.
The blood that was on the side of the top plank on the fence - It could have been made with a finger or thumb - It seemed to have been rubbed there. It was not a splotch of blood. Did not see blood on the fence post - I looked for blood can't say if I looked on post. We sent for and got blood hounds - started on a trail with the hounds - on the tracks shown by George Allen in the adjoining yard to the Phillips place - from there into Phillips yard - then over the fence into the alley - the dogs went along the alley westward with noses on the ground - into and across the street ()Guadalupe St - by the colored church ()9th & Guadalupe - through a ravine that came out in a branch. Thence to bridge on the branch - then back - then to the house on the Burlage place- then across Shoal Creek - thence to the hills over by the old military academy in `BN direction not far from Gene Shelley’s place - thence into the post oaks. We then tied up the young dog, and followed the old one through Clarksville - then tied up both dogs and went on - the dogs trotting along beside us. We followed the dogs to near Clarksville - and then went on to the old Cook place - to Clarksville - about ½ miles and to Cook place about 2 ½ miles. I did not know enough about dogs to tell whether they were trailing when we were following them.
We were shown a clot of blood in the Phillips ally - the dogs were taken to it. I thought it blood but could not tell. There was an impression in the ground by the clot of blood but I could not identify it as a human track - the dogs were put on it - it was about midway the alley from the point opposite where the body was found and from where the blood smear on the fence was it was some 60 or 70 feet. The body was on the back - face up and legs up and - with the knees crooked or a little raised - the body had on but one garment- and it was mashed up the body - most of it being about the head -and upper part of the body - brush partly covered I think - can't tell if any blood was on the garment or on the body - considerable blood where the head rested. I was there when Dr. Cummings was and saw him take out some liquid from the vagina -
Re Examination: It was evening of 25th when the dogs were used. Can’t say how many people had been in alley when the dogs were put in there - Can’t tell what dogs did save as I have stated - I removed the piece of scantling from the body. The ground in the Phillips yard was black and hard. There were some scratches on the body as if it had been dragged - the dogs never barked nor whined at any point of the route I have stated we followed them -
14 G R Thompson-
I am Sargent of the Blood Hound `conneit dogs - was at Phillips 25th December with two dogs at about 4 o'clock PM. One of the dogs was the best I had charge of. I turned the dogs loose where I was told to. I have no acquaintance with the Phillips locality. The dogs were turned loose at about the spot where the body of the dead woman was said to have been found in the yard. The dog went toward the house - considerable excitement on part of onlookers - I stopped the dogs - I then took my dogs and made my circle to see if I could strike trail - Dogs were put on track in next yard - they went to alley fence - I lifted the dogs over the fence into ally - they went down the ally into street -and out into the country - Rosenberg the magistrate was along . We followed the dogs until the old dog tired or appeared to want to go through the fence to the left - some mile and ½ or two miles from city - I called him off - then tied the dogs and went on mile or so further -but not following the dogs - I saw no evidence that the dogs found any track .
After the dogs were tied we went on to a brick yard following Rosenberg and not the dogs. I asked permission to take the dogs in the Phillips yard at night - when the crowd had left - and at night went there - I turned the old dogs loose about the same spot I had earlier in the evening - where the dead body was found - from there he went along the line of blood to the room where the defendant was lying in bed, wounded. He reared up `on the bed smelled of defendant - The defendant raised up and called “Mother” - the dog drew down - and went into an adjoining ‘art room, found a bundle of womens bloody clothes, among which was a bloody pillow - he smelled up the bundle - went on and went into the parlor where the dead body of the woman was - he then hunted around and found a tub or basin of bloody water and smelled of that . We then went through a fence where `poling was off - into the street - down to the church - but I could not tell whether he was trailing or not. I then left and went to where I was staying.
Cross Examined: The old dog is a cold trail *** but I can’t tell how cold a trail *** can take up and follow. When I went to Phillips place at night *** and turned the dog loose, he went to where *** man was on a bed - I took dog ***
He then went to another room found bundle blood articles (woman’s) - went to room of corpse - out in yard to basin bloody water - then out into street and I went to my lodging place.
When we started in the evening went west. He howls when he strikes trail - I concluded he found no trail because he did not howl - He did not howl in the yard - or house - We went on what I call a circle to see if we could find trail - The dog lead and we followed - found where a brush had been dragged- dog seemed to want to go in that direction - I let thedog have his own way except when he wanted to go through a wire fence - I then called him off - We made no effort to get through the fence nor to go around it. Called the dogs off - this wire fence was couple miles or so from town - can say the dog would take up trail that was not older than 6 or 8 hours - but longer than that would depend on dew - moisture - bushes - grass etc etc. to retain scent -
15 E J Ledbetter.
I was at Phillips place on night of Saturday 26th December - Between 2 and 4 o'clock Sunday morning Mrs Phillips, mother of defendant, was in the room - she went out and returned with a bowl of water - sat in on bed and bathed the defendants feet washed his feet - the defendant had on red socks - she took them off - washed the feet -and asked for no help - When she was through she took the basin out - I did not see the water - I was lying down on sofa back of Dean.
Cross Examined: A man by name of Dean was also present in the room lying on the floor asleep - there was `no survey about what was done - It looked **`ke like an old mother bathing her wounded son’s feet.
16 RB Mitchell
Came to Austin this morning- I came down at instance of George McGutcheons brother Jack - On night of 24 December I was at house of Capt Mitchell 25 or 30 miles from Austin George McGutcheon was there as was his brothers Jack and Beauregard - They left there about 12 o'clock at night - Saw George McGutcheon next day at Hutto - he was waiting for train - was coming to Austin with Burdett.
Cross Examined: Can't tell where I was on 24th January - 24th February, nor 24th any other month.
17. A D Woodridge
I saw George McGutcheon on the night of 24 December last at the ranch of Capt Mitchell in Williamson County some 23 or 4 miles from Austin - was with him at about 12 o'clock when he and his brothers left there - there was a stag party at Mitchells that night. About ten stags were present.
18 Jack McGutcheon
I saw George McGutcheon at Capt Mitchells Dec 24 from about 9 o'clock until 12 and left there with him - He is my brother. I came down and brought Wooldridge and RB Mitchel et al with me because I learned George McGutcheon my brother was probably in danger of getting into trouble etc we came down to prove where he was on the night of 24th December.
19 Tom Burdett
On night 24 December last I saw George McGutcheon at his fathers in WmSon co between 12 and 1 o'clock at night - saw him at breakfast next morning - this was 24 miles from Austin - He came with me to Austin 25th and went with me to the Phillips place - came on evening train - I agreed to pay him 10$ he let Eula have - I am the father of Eula.
20 JM `Frome
I was at the Phillips place on night 24th December after the tragedy - and went down the alley- over by the church, across the ravine and to the Burlage place on Shoal Creek -
Cross Examined: I did not go any further than where I lived on the Burlage place - I did not see the dogs pass my place, but heard of it -
21 Mrs Phillips recalled -
I was greatly shaken and excited and do not remember distinctly measures of time on the night of the tragedy - but think it was 15 or 20 minutes more or less- after I came to the room I found the impressions of blood that I took to be tracks by the bedside.
Cross Examined: While in the room I got blood on my feet - that is on heel and ball of feet - my toes do not reach the floor on ground- I did not wash my sons feet until Sunday - there was no blood on his feet when I washed them. I do not remember Sally Mack getting me a bowl of water, but she may have done so.
Re-examined. I was much exhausted that night I left much of the care to others - I hardly know what did take place in room that night `covered ************ ***********
()entire next page scratched out
R. A. Boya Testified as follows
In Dec last I was clerk at Palace Station. I was at the Phillips place on the night the body of Eula Phillips was found there were *** *** of scantling across her body *** was lying Just across body in *** hair Just above the *** *** I covered up the body with a blanket myself
State Closes
Defendant introduced following evidence
1 Wm Von Rosenberg jr
I identify the pieces of flooring sawed out of The Phillips house - they were sawed out by me, or under my direction - These are the pieces - one right foot track and one left - bare feet and bloody tracks - These squares of flooring are ordered by the Court to be sent up to court of appeals as part of the evidence -) I made a plaster cast of the foot of Nathan Elgin - The right foot of the bloody track was missing the little toe - The foot of Elgin was minus the little toe - I cannot say that the plaster cast fit the bloody track.-
2 George Allen
I live on the Phillips place and I did on night 24th December - Reached home about 10 o'clock - I passed near the room of defendant - and heard him and his wife talking to and playing with their baby - I retired about 11 o'clock - soon fell asleep say in 15 minutes - heard no noise or quarreling at defendants after I got home - Wife and self were fixing Christmas tree for children from time I got home up to time of retiring. When I passed defendant room there was a light burning in it. At about 12:30 old lady Phillips came to my back door and said “Buddy is knocked on the head and Eula is gone” - Both wife and self arose at once - I dressed quickly as I could and went out by my door leading on to a sort of hallway - I noticed on the hall as soon as I opened the door - that there was blood on the hall floor - I went right on to defendants room- found him lying on the bed - his hands or arms rather in contortions over his head - throwing them about - the child was crying - I said nothing to him - went through the room to the east door which leads out of the house - called to my wife for my hat - to go for the doctor- I went for the Dr (Litton) and passed by the police station - I was in middle of street - I saw three men standing at stair way - I halloed to them and told them -and asked them to see the officers - I went on to Dr Littons and called him to go to the wounded man.
Returned to Phillips place and met old man Phillips at the gate - told him to go in - I then returned to police station found Grooms Lee there and several others - got Lee to telephone to several places for policemen and I then started down to the avenue to find some officers. and then started down toward Congress avenue for policeman - after going a little way, I met justice Von Rosenberg in a carriage - and returned with but ahead of him to Phillips place .I took Rosenberg to the gallery where I had seen the blood - I then saw old man Phillips who had been after Dr McLaughlan - I then went to the police station again saw Grooms Lee and got him to telephone for Dr Grove to several places for policemen I then heard of the Hancock murder - Rosenberg followed the blood I showed him and he I understand found the body.
The next day I found blood on the fence near where the dead body lay, and also on the fence post - The blood on the fence was on the top of the top plank - Looked like made with the ball of the hand - It was put there by something that had blood on it - It was not a spot of blood that fell there - The blood on the post were spots of blood, as if dropped or thrown there There was also some blood on the lower plank of fence - put there from by something that has blood on it. I saw in the adjoining second yard from Phillips place several bare foottracks - appeared as if made by some one leaping from the fence - these tracks pointed diagonally toward the alley fence.
These tracks were marked most distinctively by the toes - and corresponded by as well as I could judge with These three tracks were pointed out by me to Rosenberg - In the alley about 100 feet from opposite where the body was found - there was a bare foot an impression human corresponding as well as track I could judge with the bloody track in Phillips house on the ground - and by the side of it was a small clot of blood as large or larger than a quarter of dollar - looked like it had come off the side of the foot- there were some feathers adhering to the clot of blood - there were feathers (chicken) in the alley near where the lady lay and the blood on the fence and post -
I also saw blood on a privy or outhouse abutting on the alley some short distance behind the track in the alley and the clot of blood with feathers adhering to it - this blood on the outhouse in the alley alley, was small in quantity and had the appearance of being slung there and adhered .
I think bef it was not over two minutes after I was called before I was in the defendants room - I dressed in a hurry - am a fireman and can dress quick - I went to defendant just as quick
as I could dress and go there. I am the brother-in-law of the defendant. Moon was shining but I can’t tell the stage of it. As I went to the defendant, I saw the blood on my gallery or hall. I took it to be blood . I went to defendants - through his back door - not through the front one - The door was shut - when I reached it - pushed it open and went in .
Cross Examined:
Question:. Did you not state in a former examination that the back door was open, or partly open when you got to it -
Answer- I don’t think I did- I saw the blood on my gallery as I opened the door - also saw blood on the ground . When I got to the defendants room, he was on the bed 0 front part, and the baby about the middle - There was a light in the room - enough to see by - I looked around - saw nothing - did not speak to the defendant - but went right on out, for purpose of finding and bringing a doctor - the defendants head was toward head of bed - he was covered with bed clothes to about his waist - he was on front of bed - saw blood on defendant - baby was crying - saw no blood on back side of bed - can't say whether defendant had on his pants - he was covered by bed covering to about his waist -
Question: Did you not find him with his pants on and did you not say to him Jim, why Jim haven’t you been to bed” and did he not answer “Hoaly God, I’m not going to”?
Answer - No - not one word of it . In January last I was clerking for H. E Jones on Pecan street Austin .
Question- Did you not at Jones Store in Austin last January say to John P Kirk - that when you went into the defendant's room on the night of the tragedy, he was lying on the bed with his pants on, and you said to him, (defendant) :Have you not gone to bed yet? and he (defendant) replied, “no, nor do I think I can”?
Answer- No- I said no such thing - and Kirk knows I did not. I just went on through the room - did not examine the defendant - nor open my mouth to him - I went right on after an officer to investigate the matter and for Dr Litton - when I passed through No one was in room but the defendant - did not see his parents nor any one but him and his child - did not look at anything but went at once to police station officer and the Dr. As I was passing police station I saw three men- they asked me what was the matter - I was going in a hurry for the Dr - I told them a murder had been committed at Phillips and I wanted help - I did not then know Eula was dead - I do not know that those men were officers - I went right on to Dr Littons - told him my business - and went back to house - and met old man Phillips who had returned from trip after Dr McLaughlin - then went back to police station - found ex-martial G Lee - got him to telephone for city `play to several places `Silan Graves for policeman - then started down to Congress Avenue to find police officer - or there were none at station.
On my way to Avenue met carriage with Rosenberg in it. Went back with him - but not in carriage walked ahead - to Phillips place - when reached there I showed him the blood on my gallery - he followed it up - and as I understood found the body of Eula- When I pointed the blood out to Rosenberg I did not know Eula had not been found Rosenberg found body first so far as I know This hour was 15 minutes after 1 o'clock - and I think as well as I can poze about ¾ of an hour after Mrs. Phillips first called - I saw the body soon after Rosenberg found it - I had made no search for the body - On the body of Eula there were three pieces of scantling - two across the chest and one across the abdomen - one arm extended - her legs lying flat and wide apart - I did not see her `naked - I threw a cloth over her body - but did not touch the body -
I examined closely for tracks the next morning - HM White also examined for tracks - we were together part of the time - but not always. The blood on the top of the fence hear the dead body was made with the fleshy part of the hand - base of hand and thumb I noticed no tracks across the fence where the blood was on the fence - I did not go west along alley, when I saw the blood on fence - but did go at a later hour with Mr HM White - this was in forenoon - I know of no person passing along the alley - Many persons were on the premises before daylight - whether any went along the alley I do not know - the clot of blood in alley was still moist - had feathers adhering to it - The blood on the outhouse was on a water closet - it was a clot of coagulated blood - three or four inches long - HM White and others saw it - I do not know whether I spoke of this blood on my examination on habeas corpus - I had told of it several times and to several persons. Can’t say that I told Rosenberg or Lucy the Marshal - I pointed out the three barefoot tracks in Summerows yard ()Mortimer Summerow - 308 W Hickory to Rosenberg - I did not take the dogs to the track in the ally, but they were at it - I don’t know who first found that track - but think it was Miller or White - The route to reach the blood in the alley, by going the route indicated by the thrice tracks in Summerows yard would have been 100 feet further than to have crossed the alley fence where the blood was on it and then gone to that spot – –. There was a light in my room when I got up - when called say by old man Phillips - I keep a light burning in my room all the time - turned down - As I passed through defendants room I saw by a glance that Eula was gone -
3. Albert Burleson -
I was at Phillips premises on Christmas morning early - I was at the spot where the dead body had been found. Quite close tracks, there was fence dividing yard from alley - On the top plank of this fence - I saw blood prints - There three of four of them - on the outside or alley side of fence - they had appearance of being made with the ends of fingers, grasping or holding while person was getting over . I looked for tracks in the alley at this point by found none -
Cross Examined: The blood impressions looked like made by ends of fingers - the body of hand resting on top of plank and the ends of fingers passing to outer edge and clasping ***- The impressions would have been about the same if one had merely laid ** hand on top of fence and pressed the **ds of bloody fingers on the outer ***e of plank .
Re Examined: The blood impressions were separate and had the appearance of being pressed there.
5. Dr J Cummings ()original document skips to 5 here
I am a physician and surgeon - I was called to Phillips place xmas eve night.
This was about 1 o'clock. I found the defendant in an unconscious condition - blood about the bed - particularly about where head of the defendant was. He was wounded. I examined the wound. It was on the left side of the head - and down also in front of the ear -and one back of angle of the ear. To make the wounds required two licks or more were necessary- The deepest of the wounds was probably one inch deep - probed with my finger and could plainly feel effect of the wound on the skull. It was a serious wound - would have been worse if a little higher and nearer the temple. He suffered much - and still does - It caused a great shock to the nervous system and produced temporary unconsciousness. Dr Litton and I attended him two weeks. He was taken to jail Dr Litton attended him - after his release on bond I attended him again - attended him over a period of two months .
I do not think it hardly possible that he could have inflicted the wounds on himself - It is altogether improbable that he could. I saw the dead body of Eula . Body nude from bust down - legs apart - and private parts distended - I took from the vagina white opaque fluid similar to male semen . Saw no blood on legs - there was slight wound on one of her ears, - the wound that killed her was that `defined in the forehead I thought at the time and I still think that it was probable she was outraged after death.
Cross Examined: I subjected the fluid I took from her to examination under microscope and found no vital or life germs in it - that usually inhabit male semen - but they are not always present - the rule is that they are - but there are conditions of the body that destroy them and they may also be destroyed by particular conditions after the semen has been deposited - this fluid was some what thinner than semen usually is - and of a shade lighter color - I am not able to say whether it was male semen or not.
I think it almost impossible and very improbable that the defendant inflicted on himself the wounds I found on him - I think and even with his licks I think it impossible he could have inflicted them.
6. HM White
On Dec 24 and 35th last I was US deputy marshal - I was at Phillips house soon after the tragedy 24 December also next day. I made searches there for traces to lead to
the murderer - I found barefoot tracks in the defendants room - on his gallery - on the allen gallery and also marks on the fence dividing the yard from the ally.
I measured two or three of these tracks -with paper and afterwards applied a measuring rule to the paper - All the tracks I measured corresponded to each other - their width across the ball was 4 - to 4 ¼ inches and length 10 ½ inches. I saw the track in the ally and the clot of blood - near it - placed sticks around it to protect it from being disturbed - In this track there was blood corresponding to the middle of the ball of the foot -and also on what appeared to be sides of the track - there was clot of blood just to the left of this track as if it had been cast from the foot, or cut from it by gravel or sand - I measured this track also as well as I could - I could get the width satisfactorily but not the length. The heel had not defined itself and the toes were un-distinct - The width corresponded with the other tracks measured by me - There were some feathers adhering to the clot of blood near the track - I also saw some blood on the outhouse - its rear end (outhouse) formed line with the fence of ally built up to it and away from it . This blood had the appearance of having been thrown there and had stuck.
I also saw the blood on the fence near where the dead body had lain - There was blood on top of the top plank - and also on its outer or alley edge - The blood on top of plank was mark of part of the hand - and that on the outer edge looked as if made with ends of fingers - There was also on the 2nd plank from fence bottom a scrape of a foot - and there were several drops of blood on the fence post at same place and looked as if they had been dripped there -
Cross Examined: I could see on the fence the impression of the palm of the hand and on the outer edge impressions of the ends of bloody fingers. There were tracks in the room - on the gallery and along the blood line to the fence . It was daylight when I made these observations. I do not know how many persons had been in ally when I saw the bloody track in there - the clot of blood . I did not find the body. Dr Litton came after I got there (Phillips). I left after I went there at night and returned about 5 o'clock next morning - and my investigations were made after that hour. I do not know but suppose several hundred people had been on the Phillips premises during the night . I measured the track in the ally - several persons were present but I can't now saw who they were -
Mr Allen and Mrs. Creary and others saw the track I told Allen where it was and that I had put sticks around it - The clot of blood had feathers in it or adhering to it - The track was a foot track and in width corresponded with the bloody tracks on the gallery - and blood was on the sides of this track. I could see the impress of the base of the foot - The ground in alley opposite where body lay, was hard - earth and ashes seemingly - further up the alley the the ground was softer - sandy - and on sides sand and gravel - in the morning when ground damp - the sand etc in alley hard - but when sun shines becomes dusty or rather loose earth etc. I saw no tracks in the alley between a point opposite where the dead body was up to this track and blood which was some twenty feet up the alley. I have heard several persons speak of having seen that track- I worked alone - There was good deal of rivalry among policemen and detectives I connected with no one - but worked on in my own way - I saw bloody track near where body lay in the yard - don't know if others saw it - but I did - I saw drops of blood on the post - fence post near where body lay - and at place where the blood was on the fence - there were some half dozen drops - they were all on the yard side of the post.
I think the members of Phillips family saw these marks of blood drops. I have never been in the employ of The Phillips family, or any member of it - to work up a case of defense or for any other purpose, at any time. I lived on the premises at the house of Mrs. Dyer, who is sister to my wife .
7. Dr CE Fisher -
Am Physician and Surgeon - Was called xmas day to see the defendant - was there at 2.30 PM - Curiosity called me to the house, -but after being reaching there was asked To examine the wounds, preparatory to taking charge of the case . I had patients in the family then - child and old Mrs Phillips.
I saw the defendant and the dead body of his wife . I dressed the wound of the defendant and made an examination of it, for the purpose of finding what treatment of it should be pursued . The wound is a little above and near of the front part of the left ear - and extending down in front of ear is about ¾ of an inch deep - to the bone or to the periosteum, which was abraded by force of the instrument used - The wound from its - position and appearance and condition induced me to believe and I think it to be true - that the blow that made it came from the rear - The ear was torn where it joined the head - at its upper part from *** which could be by blow from rear - I probed the wound with my finger first and afterwards with regular probe of surgeon - I became satisfied there was a fracture of the bone - which bone is perhaps the hardest bone in the human system to fracture - it would require a blow wielded with great power to fracture that bone -The effect of the blow th to that produced that wound would be a profound shock to the nervous system - and would produce insensibility and unconsciousness. I do not believe after the thorough examination of the wound I made that it was possible for the defendant to have inflicted in it on himself -
Cross Examined: I cannot say positively that it was impossible for the defendant to have self inflicted the wound - but it is highly improbable and I don't believe it to be possible - The wound was a severe and dangerous one - such an one if complete recovery is had from it as required a long time to recover from if recovery ever becomes complete.
I don’t think I could strike myself with sufficient force to make such a wound on my head - the bone was injured and I am satisfied was fractured - the periosteum was seriously injured - My probe entered into what I believed to be a fracture of the skull at the point of the wound - I made this examinations of the wound personally. At one of the examinations Mr Bragg was present-
8. H E `Jones
I was at Phillips on the morning of 25th December - I saw the blood on the fence near where the body was found. It appeared to have been put there by contact with and pressure of the human hand -I also saw blood on the outhouse up the alley - saw also the clot of blood by what was said to be a track halfway the alley.
Cross Examined: The clot of blood was in few inches of the track 3 to 5 inches - there were many tracks in the alley. The track close to the blood was plainly to be seen, to be by the ball of the foot - This was 7 or 8 o'clock. People were passing about up and down but I remember none who observed the track when I did - several persons looked at it while I was there - I don’t know who made it - It was there - I saw it - but how it came - who made it etc I know nothing about -
I did not notice any evidence of persons getting over the fence where the blood was on the fence - I only noticed the blood on the fence - by the side of the track and on the side of the outhouse up the alley the blood on the alley looked like it had been “slung off” from hand or something - like feathers and blood on hand and “slung off “ - I never had blood and feathers on my hands. I saw no feathers - blood on the outhouse was four or five feet from ground- the blood on the outhouse was 1 ½ to 2 inches long - the clot in the ally size of palm of hand. I saw no bloody tracks in the alley. I have stated only what I know .
9 Walter Booth -
I know defendant - On last Christmas Eve, the defendant was due Booth and Son a balance of money, on a set of furniture he had bought from us on installment plan - An installment was due on the 26th December - On evening of 24 between 5 ½ and 6 o'clock he came to the store and paid me the money, for which I gave him a receipt - I had closed the store when he came - Had to light lamp to see how to write the receipt - He was sober.
Cross Examined: We did business on Pecan St 3 blocks east of Congress avenue- From our store to Phillips place is 3 blocks to the avenue ()Congress Ave - three blocks up avenue, thence west 2 ½ blocks - Blocks are 276 feet long.
10 Mr Miller
On December 24 I lived next door to Phillips place some 60 or 70 feet from where body was found - I remember the night - Got home some after 10 o'clock - Sat awhile - wife went to bed - and in about another half hour - retired myself - Heard a noise before I went to sleep - got up - found cows in yard - drove them out - again retired - but before going to sleep was called by old man Phillips - who told me about the tragedy and wanted me to go over. *** heard no noise or confusion over there (Phillips) that night -
Cross Examined: When called I threw open the door after getting up - I knew it was old Mr Phillips, tho I did not see him. I did not go over because my wife was much excited and objected to me leaving her. When I was up about the cows, I think it was about 12 o'clock - but am not certain - Did not look at the clock -
11 Charles Raymond-
I was at Phillips on last Christmas. Was in the room with the defendant - then wounded - left there at ½ past 5 PM. He was then asleep - I know George McGutcheon - up to time I left the room he had not been in there - I returned about 8 o'clock - the defendant was then also asleep - I was with him and not out of the room during the evening before I left - and sat with him (nursing) until after 12 o'clock - George McGutcheon was not in the room while I was there - Of course can't say what occurred while I was away. On Christmas morning I saw the blood on the fence - both on the top of the top plank on the side next to the alley - also saw the track in the ally and the clot of blood beside it saw the blood on the outhouse - some feathers in the blood near the track in the ally.
Cross Examined: The blood in the outside house, seemed to be splattered - the largest speck about the size of pin head - Like sprays of blood. The blood in the alley was nearer Phillips house than that on outhouse - On it were some feathers sticking to it - It was a lump about the size of thumb -
Re Examined: The burial of Eula was at about 4 o'clock on 26th. Don’t know what took place when I was at the funeral.
Re-Cross Examined: I was not in the room with the defendant on the 26th December - I sat with him every other day. I did not see Ledbetter, there 25th, ask McGutcheon into the defendants room - Don’t remember all who did go in at that time (25th) I did not know McGutcheon. A stranger might have come in and I not notice it. The evening train now comes in at 6 o'clock - and I think it did so then - it came in after 5 o'clock I think . I know Tom Burdett by sight- I did not see him that evening before I left . I remember Ledbetter being at the door of the defendant’s room on the 25th keeping people out and permitting some to come in.
Re Examined: I saw Burdett after night- if a stranger had come in and talked to the defendant while I was there I should remember it - McGutcheon did not come in and talk to the defendant while I was present.
12 Ham Riley -
I was one of the defendants' nurses. I nursed him Wednesday and Thursday following 25th December. Defendant was during that time mostly unconscious, but had short lucid intervals. He would recognize me. At one time in those days he seemed to wake up and said “them fellows hit me a hell of a lick”. I asked him who, but he relapsed and talked foolishly. His intervals of reason were very brief - and he would fall into foolish talk at once -
Cross Examined: I could not get him to tell me what he meant when he said “those fellows” He would only talk at times and then only for a moment or so - ask for water - medicine etc and call names of different `boys in town. I had no connected conversation with him.
13. Monroe Miller-
As undertaker I had charge of body of Eula Phillips - The wound ran from about center of forehead to the left and a little downward - or inclining tow to the left temple- It did not range up and down the forehead - I used `coat-plaster in drawing parts of the wound together -
Cross Examined: I put cotton in the indentation and sewed it there with `coatplaster. The wound was deepest in the center and shallowed as it extended downwards towards left temple - don't know on which side or edge it was deepest. The upper or lower edge .
14. ()Defendant
Defendant then in presence of the jury took his shoes and socks off, and after putting his feet in a platter of ink, stepped on a `deal board - making two tracks. He then again stepped in the ink and on the the board and then took HM Walton who weighs 175 lbs in his arms and made two tracks under that weight - Then at the insistence of a juror, stepped in the ink and onto the board on the ball and toes of his Right foot and again took said Walton in his arms and made a track, bearing all the weight on the ball of the foot and toes. These tracks, with the two pieces of flooring secured and identified by William Von Rosenberg, were put in evidence and constitute part of the statement of facts and are ordered to be sent with the transcript - on appeal in this case.
15 Thomas H Whelep
I have made accurate measurement of the tracks on the pieces of flooring identified by witness Von Rosenberg and the tracks made on the `deal board by the defendant - and find the following to be the dimensions -
(Copy from Whelep notes) ()Wheleps are now lost
Cross Examined - The tracks here made by the defendant in ink `have enlarged since they were made - `they spread - but they evaporate quite quickly, much quicker than blood will dry. `Theblood tracks would enlarge more than ***
16. Mr. Campbell
Live in City - I was at Phillips place on xmas morning and saw the place where the dead body was found - I saw blood on the fence - footprints - on the outside and drops of blood on the fence post on the inside of fence at that spot - further up the alley I saw a footprint and near it a clot of blood - feathers adhering to it - and still further up ally I saw blood on the outhouse. There were considerable quantity of feathers on the inside and outside of the fence, at the point where the body was found.
Cross Examined: The feathers seemed to be chicken feathers - The clot of blood in alley looked like it had dropped from the shoe - it was at the edge of the track - I could not tell whether the track was made by boot or shoe - it was a track and near it was the blood and feathers - I hunted for further tracks but soon found that so many persons had been in the alley, my search would be useless. This `partic near the track was pointed out to me. It had sticks or something about it to protect it. I think George Allen was one of persons who pointed it out to me. There was *** very much blood on top of fence - The marks of blood there made the impression on me, that they were made by someone getting over the fence - don't know what impression it made on others. The way I got the impression was by looking at the place -and the blood `signs-
Question: Did you see a bloody track on the inside (yard)?
Answer: I can’t recall the fact whether I did or not - nor seeing any in the alley save those spoken of. That is such as attracted my attention particularly.
Question by juror: Did you notice blood tracks along line of blood from house to the body, or where it was said to have lain?
Answer: yes - but I could not identify them - they were simply blood impressions made by the foot but not defining tracks The route of blood and dragging body part of the way were clearly defined - and tracks or what I took to be tracks of blood accompanied - It was 7 or 8 o'clock *** when I was there - I saw no bare foot tracks that could be identified as such in the yard - there were bloody impressions that I took to be tracks.
Re Ex. After seeing the feathers adhering to the clot of blood up the ally I returned to the place where blood was on the fence, to see if there were feathers there - and if the feathers in blood were carried from there - I saw similar feathers at that point -I saw the impression of a foot track in the alley by the clot of blood - but I do not undertake to say that the track was made by boot - shoe or barefoot - altho council for the state has tried hard to make me say it was made by either boot or shoe - I don't know what it was made with - The ball of the foot was plainest . I can’t swear it was a foot print at all - I thought it was and still think it was - but it was not distinct enough for me to swear it was a foot print.
17. Delia Campbell -
I know George McGutcheon - I was at his house off and on about 12 weeks. I never heard him make any threat against Eula. He tried to kill the defendant while I was on visit to his house - He had been drinking and had one of his spells - He had lost some money and said he thought the defendant had taken it. He had a rock and a knife. Eula and I held him. There were men on the place, but when they would come in he would quiet down. The relations between McGutcheon and Eula, were very intimate - they appeared to be so - He told me that they were intimate - This at the Phillips house some weeks before the killing.
He bought medicine from Dr Tobin in Austin - Extract of cottonwood and Ergot and another kind to produce abortion on Eula- gave the medicines to her in my presence but first tore off the
()page torn from here
labels put ********** `fortily by the druggist. George McGutcheon has *** *** *** two accusations to kill me if I *** what I knew about him and Eula. One time at Mrs. Crearys on the *** *****
()the remainder of Delia Campbell’s testimony is torn to shreds. Remaining pieces:
Piece 1
Phillips house on 25th
*`ou - went with Dr C E
I talked with defendant
ly to my questions
me exam**
Piece 2
to my
- he stopped
oot me - I said ye*
*ands on me - He then
off -
train he again th
`kill gave him my
what I `know about him and Eula
On the evening Eula was `buried we
were in the parlor by the fire - when a
little child said to Mrs. Phillips “there
* two officers at the door who want
to see you” defendant pressed ** and in excite
ment said “they are after *****ont the
Murder – His brother B **
present - I *** h**
Piece 3
**ess**
I n**
wounds *****
that he ****** have inflicted
himself - I think it probably
*ored - I called attention to
that part of the cuticle in p**
was knocked off as if
the most serious wound
ear and in rear of front
inward and downward
**llowed it
The State of Texas
v.
James Phillips
Be it remembered that during the trial of the above stated case the following proceedings
among others were had -
II ()roman numeral one
The state introduced the witness Fannie Whipple a colored woman, and asked her whether the
deceased Eula Phillips ever came to her house and remained any length of time -
Defendant objected to the question and every phase of any affirmative answer the the witness could answer - and council in stating the objection said that the court knew and understood the character of testimony, that was now by this and other witnesses to follow sought to be drawn out *** to show irregularities `in the life `of the deceased - indeed *********** her marital vows – ()page torn
The objections being to said testimony the following-
That it was inadmissible in any view of the case unless knowledge being matter foreign to the issues before the jury - and could not throw light directly or indirectly on the guilt or innocence of the defendant .
That said testimony was wholly inadmissible in any event unless knowledge of the irregularities and infidelity - of the wife were brought home to the defendant.
That the matter sought to be drawn out was foreign matter and in its nature calculated to prejudice if not positively injurious to the rights of the defendant.
That the said matter injected new issues into the case in addition to the one of the guilt or innocence of the defendant - was calculated to draw minds of jurors of from the issues in the case -
That no predicate had been laid for the admission of said testimony - by showing that the acts of the wife or any of her acts of irregularity or infidelity - had been communicated directly or indirectly circumstantially or otherwise to the defendant.
That the testimony on this line if admitted would drag into the case foreign matter of a scandalous and sensational character that would confuse the jury - overt their minds from the true issues in the case - and seriously prejudice the defendant in his legal rights -and prevent him from having a fair and impartial trial on evidence pertinent to the charge bought against him-
To these objections the court remarked in substance - that he thought the evidence inadmissible unless the state should be able to prove satisfactorily that the defendant was advised of the irregular infidelities of his wife -
Hereupon the state though its counsel assured the court from their place, that in their opinion they would by the evidence thereafter to be produced, throw around the defendant such a state of facts and circumstances that the deduction and inference could be naturally and logically drawn that the defendant was informed of and did know of the infidelities of his said wife. Therefore the court said, that on those assurances the evidence sought could be admitted to the jury for its consideration - to which ruling the defendant then and there excepted.
The said witness was then permitted to testify, and she stated as follows -
(Here insert the testimony of Whipple as set out in the statement of facts ). ()this means her testimony above
II II ()roman numeral two
State: Then introduced the witness May Tobin and being asked generally in regard to the act of infidelity -etc- on the part of Eula Phillips - like objections were taken as were taken to the testimony of Fannie Whipple - and like proceedings were taken and had and the testimony admitted and the defendant again excepted - The said witness was examined and swore as follows - (Set out May Tobin as stated in Statement of facts)
II II II
And then Delia Campbell was put on the stand and same objections interposed as to Whipple testifying - same action taken and proceedings had - and testimony admitted - Witness examined and she said - (Insert Delia Campbell when first on the stand by state) - To all which `rulings of the court defendant at the time excepted.
IV
The state then introduced witness Albert Highsmith who was asked if he had ever heard defendant make any threat against Eula Phillips - and defendant being aware of what the witness would swear on that subject, objected to his testifying because - what he heard was in a casual conversation - was not directed personally at Eula - was conditional in character and that there was no proof of the happening of the contingency or condition on which he would act - that the testimony was foreign - prejudicial in nature to defendant - and would militate against him before the jury -
Objections overruled - testimony ruled in and the witness swore (Insert what Highsmith said about what defendant said etc)
V
State then introduced witness George McGutcheon who was also asked same question that was put to Highsmith - when like action was taken and proceedings had -and the testimony admitted over the objections of defendant - and said witness swore -
(Insert the statement as to what occurred in Williamon Co and on streets of Austin)
To all which rulings of the court defendant excepts at the time -
VI
When the state had closed defendant moved the court to compel the State to introduce James Phillips Sr for following reasons,
Case of circumstantial evidence
The evidence produced by the state shows said party to have been the second person on the ground
That if anyone knew aught that was valuable and nearest to res gestae, this witness was possessed of the facts. ()res gestae: latin- things pertinent to the overall facts of a case
That the case of the state without said witness was very unsatisfactory and questionable
Court overruled the motion - state did not put said witness on the stand - and defendant excepted at the time to the ruling of the court -
VII II
State counsel in closing the argument said that the defendants counsel had had defendant and experimented with his tracks opportunity to experiment with the defendants foot and the bloody tracks cut out of the floor and then when he was brought before the jury, to make tracks in their presence, defendants counsel refused to permit counsel for the state to make plaster casts and have those furnished by them and one made at instance of the Jury - to test his feet by said bloody tracks -and drew the conclusions that such a test would not do and therefore they refused to let the state make the said test - or to test further than they had tested and the one other test. The defendant did not except at the time. The remarks were made, but claims the court ought to have called counsel to order, and restrained him inside the evidence and exception is now taken and was taken by setting up the ground in motion for new trial - Such remarks it is claimed were very injurious to the defendant if believed - by the jury - and were calculated to impress on their minds suspicion distrust and now yielding assent to the bonafides of his making tracks in their presence -
Time being given, this bill is prepared and presented and asked to be enrolled and made part of the record and it is done —
AS Walker
Judge
State V Phillips
Bill Exceptions
Agreed
ET Moore
*** ***
Filed June 14 1886
James P Han MC