The Midnight Assassin: Panic, Scandal, and the Hunt for America's First Serial Killer

by Hollandsworth, Skip

  There was only one man who fit the definition of such a man. It was William J. Swain, the strapping, barrel-chested state comptroller.

  * * *

  The newspapermen raced to Swain’s office to ask him if he had had sex with young Eula. And what did he know about her murder? And what did he know, for that matter, about all the other murders?

  Swain stood behind his desk and declared that he had never met Eula Phillips. He bellowed that he would find “the party” who had gone to the Pinkerton detectives and spread “such underhanded slander,” and he vowed that he would hold the person “accountable” in a court of law for such an “indignant and cruel outrage.”

  It wasn’t long before Swain announced that he and his staffers had learned that the telegram from the so-called “prominent citizen” had been sent from the city of Waco, which just happened to be the home of Sul Ross, a slim, balding former war hero who had recently declared that he would be running against Swain for the Democratic Party’s nomination for governor.

  In 1860, as a member of the Texas Rangers, Ross had led the heralded rescue of Cynthia Ann Parker, a white woman who had been captured by Comanche Indians when she was a child. During the Civil War, he had fought in 135 battles for the Confederacy. He was definitely well known and very respected around the state. But he wasn’t much of a politician. One reporter noted that he was an “atrocious” orator who spoke in “a camp meeting drawl,” and another reporter pointed out that he had no substantial ideas about how Texas should be improved or promoted. (During a two-year tenure he served in the legislature, Ross voted against the state appropriating $15,000 to install its exhibit at the World’s Industrial and Cotton Centennial Exposition in New Orleans.) Ross’s own campaign manager, Waco attorney George Clark, a long-time political operative, admitted that Ross had been “quite timid” about the idea of running for governor because he didn’t believe he could win.

  The “cohorts” of gubernatorial candidate Sul Ross (above) were accused of spreading a rumor that the Midnight Assassin was Ross’s opponent William Swain.

  In fact, it was hard for anyone to imagine Ross being able to beat the popular Swain, who was already drawing large crowds at his campaign stops around the state. It was assumed that Swain was, in the words of one reporter, a “shoo-in” for governor, unless a major scandal derailed his campaign. And now, fortuitously for Ross, a scandal had hit just at the right time. Around the state, people were reading headlines saying that William J. Swain, the man who wanted to lead Texas into the twentieth century, could very well be one of the most vicious killers in Texas history.

  Swain said he would be going to court to ask for a subpoena requiring the telegraph operator in Waco to testify which Ross “cohort” had come into his office to send the telegram to the Pinkertons. Ross’s campaign manager Clark heatedly denied Swain’s insinuation that anyone involved in the Ross campaign had anything to do with the telegram. Ross’s hometown newspaper, the Waco Daily Examiner, also came to his defense, claiming he wanted to win the election “fair and square.” In a clever bit of writing, another newspaper that supported Ross, The Balance Wheel, encouraged voters to do the right thing and pay no credence to the newspaper stories “that attempt to connect Col. W. J. Swain with this horrible, blood-curdling crime by stating that he was known to have been riding with [Eula Phillips] a short time previous to her murder, which was 12 o’clock at night.”

  Under such headlines as “A Dastardly Outrage” and “The Infamous and Lying Dispatch,” the newspapers that backed Swain’s candidacy vehemently came to his defense, with a couple of them calling the telegram’s author a “cowardly sneak” and a “cut-throat.” The Fort Worth Gazette described the whole affair as “one of the most damnable and infamous libels ever attempted in Texas.” T. E. Moore, the special prosecutor, issued an affidavit stating that he and District Attorney Robertson, during their investigation of Eula’s murder, had come across no witnesses who mentioned Swain as her paramour. As for that telegraph operator from Waco, he refused to speak about the source of the Swain telegram, which to Swain’s camp was a clear sign that Ross—or someone on his staff—had pulled off the dirtiest of political tricks.

  When Ross opened his gubernatorial campaign in Waco just days after the rumor was circulated about Swain and Eula, he didn’t mention Swain’s name. His speech focused on the issues of the day—taxation, public school funding, and the fencing of the cattle ranges of West Texas—though he did briefly mention the need to bring “dignity” to the governor’s office. Swain in turn went on a barnstorming campaign throughout the state, telling his supporters that he was not going to stand idly by while his detractors made “vile,” “low,” and “dirty” statements impugning his character.

  But the allegations about Swain and his “impure life” would not go away. Although the San Antonio Daily Express was one of the newspapers supporting Swain, it acknowledged that the allegations about his relationship with Eula, regardless how false, “may not make him governor.” Even Governor Ireland postponed endorsing him as his successor. He decided to wait until after Jimmy Phillips’s trial before making an endorsement. If Phillips was acquitted, then Swain would still be a suspect, which, for the governor, would be a very big problem.

  * * *

  Mayor Robertson was clearly devastated by the havoc the fake Pinkertons had wrought. In early March he brought the detectives to his office, paid them the balance they were owed for their work, and sent them back to Chicago. He then met with the aldermen and told them they needed to pass more ordinances to counter allegations from around the state that Austin was an immoral city. One ordinance they passed established “Sunday laws,” in which all businesses would have to be closed from 9 a.m. to 4 p.m.—and saloons closed for the entire day—so that residents would have more time to read the Bible and improve their Christian attitudes.

  Meanwhile, out at the State Lunatic Asylum, Dr. Denton was also doing what he could to allay the fears of those who had come to believe it was a dangerous place, teeming with vicious madmen. Speaking to legislators, he said there had only been one escape in the last twelve months. He mentioned that plans were in the works to add more gardens and walking paths to the asylum’s grounds to ensure that the patients felt an even deeper sense of tranquility.

  Denton, however, didn’t seem to be speaking with his usual enthusiasm—and soon everyone in Austin learned why. In February, Denton quietly had gone to a county judge and requested that an Austin citizen, who was suffering from a “very distressing and deplorable” mental condition, be “involuntarily committed” to the asylum and “placed under restraints.” The citizen was none other than his own son-in-law, Dr. James P. Given, the asylum’s thirty-four-year-old assistant superintendent.

  Denton had said nothing to the judge about what had caused Given’s insanity. All that the judge was told was that the young doctor was “bereft of his reason.” Denton then made a curious request. He asked that his son-in-law be “removed from the effects of his present association” and moved to the North Texas Lunatic Asylum, a small branch of the State Lunatic Asylum that had recently opened in the northeast Texas town of Terrell.

  The judge agreed, and Given had been taken to the Austin railroad depot, put on a train (probably strapped in a private car), and taken to Terrell. In his admissions report at the new asylum, Given’s cause of insanity was still not revealed. All that was written down was that he suffered from “Dissipation,” which was a vague term that asylum doctors in that era used to describe any number of behaviors, ranging from alcoholism to “hallucinatory activity.”

  Upon learning of his fate, Given’s friends were inconsolable. They described him as “a genial and accomplished gentleman,” “deservedly popular with all with whom he associated,” and one of the city’s best “imports.” He possessed “a high sense of honor” and was “upright and just in all his dealings”—a diligent doctor who had spent long hours keeping up with the patients’ conditions. There had been
nothing in his behavior, said his friends and associates, that suggested he had been losing touch with reality.

  Was it conceivable that, within the space of just a few weeks, Given had lost his mind? Or had he been hiding his insanity for a very long period of time? And why, once his “dissipation” was discovered, was it so important to Denton that his son-in-law be sent to the new branch asylum in order to be removed from “his present association”? What did that mean?

  One can only speculate, because the records detailing Given’s treatment at the new asylum were never added to the asylum’s files—either that or they were later removed. Perhaps Given had contracted syphilis, which in that era was untreatable and a major source of insanity, sending parasites burrowing into the brain, and Denton had wanted to hide that fact from the public to protect Given’s sterling reputation. Perhaps Denton didn’t want Given to become the subject of ugly rumors that his mental condition had transformed him, under the light of the moon, into a murderous “maniac.” Or perhaps Denton hadn’t wanted Given to suffer the same character assassination he had seen Swain endure.

  If that was Denton’s motive, he was certainly successful: no scandalous rumors about Given ever made the newspapers. But as for the asylum itself, Denton wasn’t so lucky. His dreams of making the institution into a perfect paradise—a place of gentle refuge away from the heartless world—had been dashed. The Daily Statesman even noted that the editors of the Fort Worth and Dallas newspapers were “congratulating themselves” that they had not won their bids to the state legislature years ago to have the state asylum built in their cities. Indeed, the editors proclaimed, compared to Austin, their cities were blessedly free of madmen.

  * * *

  On May 24, Jimmy Phillips’s trial began. Hoping to get a seat in the courtroom, spectators were at the courthouse before it opened, the men dressed in their best dark suits and flat-crowned Stetsons, and the women wearing silk dresses and high hats filled with a wilderness of feathers. One reporter described the courtroom as “crowded to suffocation.”

  Toward the front of the courtroom was a plain oak table for District Attorney Robertson and T. E. Moore. Another table was reserved for Jimmy’s defense team, William Walton and John Hancock (no relation to Moses), who were regarded as the best criminal lawyers in Austin. Although neither man liked the other—Walton had been an ardent secessionist during the Civil War and Hancock an outspoken abolitionist who was once deprived of his seat in the state legislature because he wouldn’t take the Confederate oath—they were both so outraged by Jimmy’s arrest that they had set aside their differences to defend him. There were other tables in the courtroom for representatives of the press: reporters from the state’s bigger newspapers, as well as those for the national wire services. The New York World and Chicago Tribune, among other newspapers, promised their readers to publish “full accounts” of the trial testimony.

  Jimmy was at the defense table, where he sat slumped forward, staring absently at the wall. Reporters described him as “pale,” “feeble,” and “care-worn and haggard, as if he had not yet recovered from his terrible wounds.” Judge Walker strode into the courtroom. A bailiff announced, “Court is in session. Hats off except for the ladies!”

  For weeks, the newspapers had been predicting that the trial would unfold as a Gothic melodrama of deception, sexual suspense, and gruesome murder—“as exciting, as dark and as implacable, as The Mystery of Edwin Drood,” declared the Daily Statesman, referring to the last novel written by Charles Dickens, which at the time of his death in 1870 was unfinished, leaving the identity of the murderer unknown. In their opening arguments, Robertson and Moore laid out a melodramatic narrative of a young wife who was given to rampant infidelity and a jealous young husband who was given to drink. Walton and Hancock countered with an equally dramatic anti-narrative, telling the jurors that any number of men, from well-heeled ex-lovers to the notorious gang of bad blacks, could have killed Eula.

  Over the next three days, a parade of people who knew Jimmy and Eula were brought to the witness stand by the prosecutors to testify about Jimmy’s abusive ways. One man, George McCutcheon—he owned the farm near the town of Georgetown where Jimmy and his wife had lived for a few months in order to keep Jimmy out of the saloons—testified that just before the couple returned to Austin, he had told Jimmy to stop drinking, saying, “You are ruining yourself and making your wife miserable.” Jimmy had replied that he was worried that Eula was carrying on with other men. McCutcheon said Jimmy then asked him, “Do you think Eula is too fast?” McCutcheon said he replied, “No, I think she is a good and virtuous woman, but she talks a little too much,” to which Jimmy said, “If I thought she was not virtuous, I would kill her and then kill myself.”

  Jimmy’s sister Adelia came to the witness stand to testify that Eula was scared of Jimmy—so scared, in fact, that she once had hidden for a few days in the East Austin home of a poor black woman named Fannie Whipple after Jimmy had tried to attack her.

  The spectators gasped. Eula was so desperate to get away from her own husband that she stayed at the shanty of a Negro?

  Adelia set off more courtroom gasps when she testified that she knew that Eula had met at least two men at Mae Tobin’s. Adelia insisted that she didn’t know the men’s names. Nor, she added, did she have any idea about Eula’s activities with any particular man on Christmas Eve. But yes, she said, Eula had been “an untrue wife.”

  Then Mae Tobin, the star witness, walked into the courtroom. According to the newspapers, people “rose” from their seats “on tiptoe” to get a look at her. She sat down in the witness chair and folded her hands in her lap. The room fell silent as she began to talk, and everyone “hung upon her words … with breathless attention.”

  At first, Tobin stuck to the same story she originally had told to Thomas Bailes, the private investigator, acknowledging that Eula had been to her home during the fall of 1885 to meet “young men and other men of uncertain age.” But this time, she decided to name names. She said she had recognized three men who had been with Eula. One was John T. Dickinson, the secretary of the powerful state commission that was overseeing the construction of the new capitol. Another was Benjamin M. Baker, the state superintendent of public instruction (the head of Texas’s public schools). And the third man was William D. Shelley, a clerk in the comptroller’s office whose father just happened to be the law partner of John Hancock, one of Jimmy’s defense attorneys.

  The spectators gasped for the third time. They waited to see if Tobin would acknowledge that William Swain, the comptroller himself, was also one of Eula’s paramours. But all that Tobin would say was that Eula had come to the house with two other men whose names Tobin did not know. Tobin also reiterated that she had not been able to tell if there was a man in the carriage with Eula on Christmas Eve when she came to the house maybe an hour before her death.

  In the next day’s newspapers were huge front-page headlines: “Austin Agog. A Ten-Inch Bomb Exploded in an Austin Court” and “High State Officials Given Away—and Others Shaking in Their Boots.” Tobin herself was described as “The Scarlet Woman,” “The Procuress,” and “The Shameless Cyprian.” The Houston Daily Post declared that her testimony had set off “one of the most extensive and profound scandals ever known in Austin.”

  For their part, Dickinson, Shelley, and Baker expressed the usual outrage, alleging that their political enemies had paid Tobin blackmail money to name them as visitors to her house of assignation. Baker went so far as to pay for a “card” to be published in the Daily Statesman in which he declared that he “had no acquaintance with Mrs. Phillips, and never spoke to her in my life.” (The card didn’t have much impact around his home: his wife soon left with the children for her parents’ home in East Texas.)

  Interestingly enough, when the trial resumed, Jimmy’s attorneys barely cross-examined Tobin about Eula’s visits. But they did rip into the prosecutors for presenting no evidence at all indicating that Jimmy knew about h
is wife’s secret life. Nor, they charged, did the prosecutors present any evidence linking Jimmy to Eula’s murder. When Robertson brought up the behavior of Bob the bloodhound rising up on Jimmy’s bed to sniff him, Hancock the defense attorney got great laughs in the courtroom when he shouted, “I wouldn’t hang a dog upon the testimony of a dog!” Additional points were scored in Jimmy’s favor when three doctors testified that he physically would not have been able to wound himself so severely with an ax toward the back of his own head.

  Jimmy’s lawyers then introduced a new suspect. They theorized that George McCutcheon, the man Eula and Jimmy stayed with on the farm near the town of Georgetown, had come to Austin on Christmas Eve to carry out the murder. The attorneys speculated that McCutcheon had been having an affair with Eula and that he once had given Eula money to go to a pharmacy on Congress Avenue and purchase chamomile flowers and extracts of cottonwood and ergot, which if mixed properly could produce an abortion. Maybe, they said, McCutcheon had decided to kill Eula before his own wife found out about his and Eula’s relationship.

  “Is it true you were in the habit of having carnal intercourse with Eula Phillips while she lived at your house?” defense attorney Walton asked McCutcheon.

  “I decline to answer the question,” McCutcheon said heatedly, adding that he had an unimpeachable alibi for Christmas Eve: he had been at a “stag party” that night near his farm and had been seen by many other men. Still, McCutcheon was forced to admit that he owned a fine trotting horse that could have quickly carried him on Christmas Eve night from his farm to the Phillips home and back before daybreak.

  Jimmy did not testify. But his attorney did have him take off his shoes and socks, place his foot in a bucket of ink, and step on a pine board, making a footprint. That footprint was displayed next to the bloodied footprint that had been found outside Jimmy and Eula’s room just after the murder. Jimmy’s footprint was clearly smaller.