Phillips v. State

• Decision Date: 24 October 1888
• Citation: 9 S.W. 557
• Parties: PHILLIPS <I>v.</I> STATE.
• Court: Texas Court of Appeals

9 S.W. 557

PHILLIPSv.

STATE.

Court of Appeals of Texas.

October 24, 1888.

Appeal from district court, Upshur county; A. B. BOREN, Special Judge.

Indictment of George Phillips for murder. Defendant was convicted, whereupon he appeals.

Peteet & Crosby, for appellant. Atty. Gen. Davidson, for appellee.

WHITE, P. J.

Though appellant has been convicted upon an indictment charging him alone with the murder of Lewis Rhiden, the testimony shows that several other parties were connected with and implicated in the killing. There is no positive testimony identifying the party who actually fired the fatal shot; and while all of the state's witnesses testify to the formal presence of this defendant, and place him in positions and surround him with circumstances that lead almost irresistibly to the conviction that with his own hand he committed the murder, he, on the other hand, has proved by the positive testimony of his principal witness that he was not only not present, but that he was so distant he could not have heard the fatal shot by which the murder was committed. This witness was a white man; all of the other parties present at the time, witnesses and participants being negroes. The murder was committed at night, some time after dark. Inasmuch as the most serious questions arising upon this appeal relate to the correctness and sufficiency of the charge of the court with reference to conspirators and principal offenders, it may be well to state the substance of the uncontradicted and undisputed facts showing specially defendant's relation to the homicide. It appears that appellant's infant child had been taken by some one and spirited away. When and under what circumstances does not appear; nor does it appear what supposed connection, if any, deceased had with the abduction and concealment of the child. The homicide was committed on Monday night. On the previous Saturday night defendant went to the house of deceased with a gun, after the family had gone to bed, inquired for deceased, and, when informed that he was not there, said that he was going to kill him. On Monday defendant was at the house of deceased three times, on the first occasion early in the morning; and, when told that deceased was not there, he told the family to tell deceased that he intended to kill him that night. About an hour by sun he again appeared at the house; and, being told that deceased had not returned, said: "Tell Lewis Rhiden that he had better get his gun ready, for me and George Nixon, Aaron Nixon, and Bill Evans are coming here to-night, to kill him, or hurt him d___d bad." Some time after this defendant passed deceased's house; and, the latter being at home, the defendant asked him to help hunt his child, when deceased said that he was sick, but, if defendant would wait till morning, he would go with him to hunt his wife and child. As defendant was leaving, he said George Nixon, Aaron Nixon, and Bill Evans were going with him. That same evening all the last-named persons and the defendant met at the house of Jim Phillips, where they were preparing arms and ammunition, and about dark started off towards the house of the deceased; and when George Nixon said, "Boys, this is a mighty particular matter we are going into," the defendant said, "Yes; come on. The one that crawfishes out of this business, we will all turn on him." Defendant's witness, the white man Jim Brice, says that some negroes came to Mit Brice's, where he and defendant were, and called defendant out, and talked with him, just before the witness and defendant were about too start off on horseback to hunt for defendant's child, but that he does not know whether they were George and Aaron Nixon and Bill Evans or not. The witness was near-sighted, and could not see well at a distance. The same parties, whoever they were, were at deceased's house when the witness and defendant passed it going to Ned Wagoner's, six miles distant, in search of the child. There is but little, if any, conflict in the testimony up to this point. The state's witnesses say that, just before the killing, George Nixon came to the fence in front of the house, and called deceased out; and that these two men were sitting on the fence talking, when Jim Brice, Bill Evans, and defendant passed by, all armed; and defendant told deceased that he wanted to see him, to which deceased replied, "I want to see you, too;" that, after having gone about 40 yards, the parties stopped in the road, and defendant called to deceased to come down there; that deceased was shot by some of the parties in the road, — that is, by Jim Brice, Bill Evans, or the defendant. Defendant's witness Jim Brice positively denies that he and defendant either said anything to deceased or any one else as they passed; denies that they stopped and witnessed the shooting; denies that they even heard the report of the gun which did the killing; and further testifies that he (the witness) did not hear of the killing until the next morning; that defendant was with him all the time; that they went six miles to Wagoner's, and returned together back to Plummer's, within a mile of the place of the homicide. There is other evidence which tends to show that the shooting was done from a fence-corner inside the field, and by Aaron Nixon, who, it will be observed, was not seen with the other parties at the house of deceased about the time of the killing.

From the facts we have detailed, we think it is reasonably apparent that a conspiracy was deliberately entered into between Aaron Nixon, George Nixon, Bill Evans, and this defendant to take the life of Lewis Rhiden. It is equally apparent that such conspiracy was formed in the interest and at the instance of ...