Phillips v. State

• Citation: 34 S.W. 539,62 Ark. 119
• Parties: PHILLIPS v. STATE
• Decision Date: 29 February 1896
• Court: Supreme Court of Arkansas

34 S.W. 539

62 Ark. 119

PHILLIPS v. STATE

Supreme Court of Arkansas

February 29, 1896

Appeal from Arkansas Circuit Court, JAMES S. THOMAS, Judge.

Judgment affirmed.

White & Streett for appellant.

1. The court erred in allowing irrelevant, improper, remote, and indefinite testimony to go to the jury, which was prejudicial. 45 Ark. 539; 52 id. 303.

2. It was error to permit the jury to be in possession of the motion for a continuance, thus enabling them to compare the signatures to the motion and to the letter introduced in evidence. 29 Ark. 248.

3. It was error not to discharge the jury on account of prejudice of the juror Bass; and also in refusing to allow defendant to prove the charges preferred against said juror. The rule in 40 Ark. 51 does not apply here, as the objection was made before verdict.

E. B Kinsworthy, Attorney General, for appellee.

1. Testimony of Shelton and Hinson was admissible to show appellant's feeling toward his wife, and his animus toward her. 45 Ark. 539; 40 id. 511.

2. The letter was admissible, as it shows that appellant had decided to kill his wife, and that he went to where she was to put his plan into execution.

3. No harm was done by possession by the jury of the motion for continuance. All the statements therein were favorable to appellant. 29 Ark. 248.

4. The objection to the juror Bass came too late. 19 Ark. 156; 40 id. 515; Sand. & H. Dig. sec. 4259.

OPINION

BUNN, C. J.

The appellant was indicted, tried and convicted in the Arkansas circuit court of the crime of murder in the first degree, at its November term, 1895, and appealed to this court.

The testimony as to the facts and occurrences immediately connected with the homicide shows that the defendant, some time in the forenoon of the 29th day of June, 1891, in a field near the farm house of W. P. Porter, in Arkansas county, shot and killed Martha Phillips, his wife, in the manner and under the circumstances detailed by the witnesses present, as follows. Porter, the owner of the plantation testified substantially as follows: "On the morning of the 29th day of June, 1891, I was engaged in mending a plow used by one of my hands on the farm, Joshua Fitzpatrick, by name, who was present; and while leaning over the plow engaged in mending it, my attention was attracted by the defendant, Jordan Phillips, speaking and saying to his wife, who was twenty or thirty feet from him: 'Aren't you going home to take care of them children? Cut out!' And as I looked up, I saw defendant standing near me with a rifle in his hand. Defendant raised the gun and fired, and Martha Phillips fell. The defendant then stepped off a few yards, re-loaded his gun, and went off through the field in the direction of where his wife and Tom Pike, another hired hand of mine, had been working." Witness went up to Martha Phillips, and found her quivering and in the throes of death, and sent Fitzpatrick for Dr. Kelly, who came, but not before the woman had died, she having in fact died instantly, having been shot in the fleshy part of the left arm and into the left side.

Joshua Fitzpatrick testified, in substance, as follows, to-wit: He had broken his plow, and taken it to a point in the field near the house, and put up his team, and he and Mr. Porter were mending the plow. The deceased came up, and said to Mr. Porter, "Can Jordan [the defendant] make me go home?" And the defendant then said to her, "You go home. Get out of here," and then fired, and deceased fell, and defendant, after reloading his gun, went off in the direction of where deceased and one Tom Pike had been at work. Witness was then sent for Dr. Kelly.

The defendant, testifying for himself, said, in substance, as to the occurrences: On the morning of the killing, his youngest child--an infant--had fits or spasms, and he started out again to get his wife to return home with him; went to the house of one of his sisters, and was there informed that his wife had hired to Mr. Porter, and was then working on his farm, to which place he then went, and as he passed along the road by the field he saw her and Tom Pike working together in the field, and, as he went towards them, deceased walked in the direction of Mr. Porter, and in that direction he went also, arriving there about the time his wife did. Defendant testified that he then said to her: "Mama, the baby is sick. Won't you go home and take care of it?" and that, in response to this, she said, "I told you last night I was not going home with you, and I will make Tom Pike kill you." Continuing, the defendant said: "The remembrance of the wrongs I had ever suffered at her hands came upon me at once, and in a fit of anger rendering my passions uncontrollable, I fired my gun and killed her. I brought my gun with me that morning, fearing I would meet Tom Pike, and that he would undertake to kill me, as my wife had threatened she would have him do." He further denied having written the testamentary letter.

These were all the witnesses who saw the killing, and all agree that defendant and his wife reached the fatal spot about the same time, and approached at right angles, and Porter says defendant could easily have shot deceased before reaching him. The testimony of defendant tended to show that the wrongs spoken of by him, as suffered by him at his wife's hands, consisted of her desertion of him, leaving three little children, one an infant at the breast, for him to take care of, and (according to his own statement) living in adultery with Tom Pike, and heartlessly refusing to return home and care for the youngest child, even in its sickness. It will be seen that the manner in which defendant demeaned himself towards his wife at the fatal meeting was quite different according to his testimony and according to that of Porter and Fitzpatrick. The evidence shows that the relations between the defendant and his wife had been most unhappy for several months before the killing, and that she was not really living with him at the time of the killing, but had hired to Porter, to work on his farm for the time being, and that she and defendant had frequent separations before the killing.

The tenth, eleventh and twelfth grounds of motion for a new...