T. E. Moore told the judge that the demonstration was flawed. He said Phillips was probably carrying his wife when he made that bloody impression, which meant his feet almost certainly would have made flatter prints due to the extra weight. Jimmy’s attorney William Walton, who weighed 175 pounds, promptly climbed up on Jimmy’s back and asked him to put his foot again in the bucket of ink and step on another pine board. Jimmy’s footprint was still too small.
In closing arguments, Walton and Hancock told the jurors that if Jimmy’s footprint didn’t match the bloodied footprint, then they had no choice but to acquit. They portrayed Jimmy as a loving husband who had been working hard at sobriety and had tragically been attacked by the “same fiend” who had murdered his wife.
After deliberating for a day and a half, the jury came back into the courtroom. Just about everyone in the gallery was assuming a verdict of not guilty. The entire trial had been a travesty, some people were saying. Surely, Jimmy would be going home later that day.
The foreman rose and announced that he and his fellow jurors unanimously found Jimmy guilty of second-degree uxoricide and that he should spend seven years in the state penitentiary.
And once again, the spectators in the courtroom gasped.
CHAPTER NINETEEN
Jimmy was led from the courtroom to the county jail, where he would be staying until the state prison wagon arrived to take him to the penitentiary. Newspapermen headed to the Austin Press Club at the Horseshoe Lounge to type up their stories and try to explain to their readers how such a verdict had been rendered. The Galveston Daily News reporter hinted that the jurors had been bribed or, at the least, secretly given some information about Jimmy and Eula that influenced their decision. There was simply no way “to account for the verdict,” he wrote, unless “there was some inside business that was made known to the jury privately.” The San Antonio Express’s man claimed that the decisive factor in the trial was T. E. Moore’s powerful courtroom performance, noting: “His eloquence rather than the guilt of the prisoner caused a verdict of guilt.” Trying to maintain some sense of balance, all that the Daily Statesman’s man would write was that “the majority of Austin’s citizens” believed the jury had “erred.”
Hancock and Walton announced they would be filing an appeal immediately. Walton was especially furious at District Attorney Robertson, accusing him of transforming himself from a nice young man into a “veritable thug” who had done anything possible “to win at all costs,” leaving “no human contrivance, no trick of the trade, no art untried to secure a conviction.”
Robertson replied that he had not resorted to any shenanigans to persuade the jury of Jimmy’s guilt. He said no one—such as his own older brother—had asked him to do what he could to get Jimmy behind bars. He and Moore simply had done what the law required them to do: they had laid out the facts to the jurors, and the jurors had decided on their own that no mysterious killer had come after Eula. Robertson then said that he would soon be convening a new jury, as the law required, to hear the case of the State of Texas versus Moses Hancock for the murder of his wife, Susan.
But why, several citizens wanted to know, didn’t Robertson and Moore present any testimony regarding the identity of the man who supposedly was with Eula on Christmas Eve? Was it Swain? Or was it someone else “of high position and wealth”? A rumor swept through the Avenue that “a rich cattleman” was actually with Eula and that he had “planked down” blackmail money to Tobin in return for her not mentioning his name in court. Who, people asked, was the cattleman?
Robertson and Moore said they had uncovered no information about any Christmas Eve paramour. As for Swain, he made no public comment at all about the trial or Jimmy’s conviction, He believed he didn’t have to. For one thing, he still had the endorsements of a vast majority of the state’s newspapers—a four-to-one advantage in newspaper endorsements over Sul Ross, one reporter figured. The Democratic Party nominating convention in Galveston was only two months away. Swain could not imagine that he could be brought down in such a short period of time by ludicrous rumors that he had been involved in murder.
To reassure voters that there was nothing about him to fear, Swain went on another barnstorming tour around Texas. In the town of Rockdale, his staffers arranged for the town’s ladies to turn out “in full force” and cheer when they saw him. He gave a speech that lasted nearly two hours, his voice never faltering. After hearing Swain speak, one reporter called him “a full-fledged candidate” and went on to say that his opponent Ross was nothing more than a “kindie [kindergartener] beating the brush.” The reporter added, “Swain has served Texas and her interests too long and too faithfully to be defeated by an unwarranted effort to pull down and belittle the man.”
But the Swain-Eula rumors did not go away. The newspapers that supported Ross noted that Swain had never followed through on his vow to hunt down the author of the telegram that claimed he had been with Eula on Christmas Eve. At the same time, the wily Clark and Ross’s other campaign operatives were spreading damaging new stories about Swain: that he had violated state nepotism policies by hiring his two sons to work at the comptroller’s office, that he had illegally used state stationery to write campaign letters, that he had put a woman on his payroll even though she did not come to work, and that he was “in collusion” with the men building the new state capitol, taking bribes in return for his help in getting construction materials at a very cheap price.
What made matters worse for Swain was that Governor Ireland never delivered his endorsement: he obviously believed his own political future would be better served if he kept his distance from the comptroller. As a result, when the Democratic convention was convened in August at the gymnasium-size roller rink in Galveston, it was obvious that Swain had lost significant support. Many of the 696 delegates were openly telling reporters that he had too much baggage to be the next governor. What was best for Texas, they said, was a reliable, old-fashioned war hero—not a murder suspect.
On the day of the nominating speeches, the heat was so stifling inside the roller rink that the delegates took off their coats and fanned themselves—“their fans reaching desperately for air,” wrote one reporter. Suffering from a fever, Ross spoke for only twenty-five minutes. “He was nervous,” noted the Galveston Daily News. “His face was flushed and his eyes devoid of their customary luster.… His speech was a disappointment to his friends.”
Swain then rose to deliver his oration. According to the newspapers, his “friends” broke into applause numerous times. When he finished laying out his positions on the issues, he came to the very edge of the platform and in a voice “trembling with agitation” and “now and again swelling into a roar of rage,” he lifted his arms and declared, “This campaign has been the most disgusting in mudslinging and vituperative slander that has ever disgraced the footstool of Deity. I have filled offices for fifteen years in the state. I have turned them over untarnished and I defy any man to find a single blemish in the record that I have made for the state of Texas. But lying and contemptible scoundrels—men who would be thieves if they had the opportunity—have been slandering me from one end of the state to another.”
Swain looked at Ross’s supporters. “Gentlemen, whatever you say about me, I can go home and make as good a soldier as ever fought in the Democratic ranks,” he stated, his voice still trembling. “And you can’t touch me!”
When he finished, “hats were tossed aloft” among his supporters, “handkerchiefs waved,” and “shouting and cheering lasted for fully two minutes.” But it was too late. Swain, in the words of one reporter, was a “doomed duck.” Ross received 433 votes on the first ballot to Swain’s 99, with two other candidates accumulating the other 164 votes. Amid a “tumult of shouting,” Ross was carried on the shoulders of his friends from his hotel room to the roller rink, where he gave a brief acceptance speech. An embittered Swain returned to Austin and announced that upon completion of his term as comptroller, he would be joining
an Austin law firm that focused on “land matters.” He said he would never again run for public office.
* * *
For the rest of the summer and fall of 1886, Austin remained quiet. In October, William Frank “Doc” Carver, a former Nebraska dentist and farmer, came to the fairgrounds to put on The Golden West, a dramatic spectacle that offered a nostalgic portrayal of life as it once was in the American West. In the mid-1880s, there were probably half a dozen such Wild West shows traveling the country, the most popular put on by former Pony Express rider William F. “Buffalo Bill” Cody. But Carver was right on Buffalo Bill’s heels. Six feet, four inches and 265 pounds, he always wore a broad-brimmed hat and a suit of buckskin, beautifully trimmed and beaded, with thick, hand-stitched leather boots rising to his knees. His hair was very long, brushed behind the ears, and his mustache was enormous. In his promotional material, he called himself “the Champion Rifle Shot of the World” and “the Wizard Rifleman of the West, Conqueror of All America and Europe, and Cynosure of People, Princes and Warriors and Kings.”
Carver’s show in Austin was a sellout: hundreds of residents were packed tightly together in the grandstands. A brass band began to play, and into the arena came what the Daily Statesman later described as “an imposing historical parade” of cowboys, lawmen, outlaws, Indians in war paint, hunters, Mexican vaqueros, and Carver himself, who swept off his hat and bowed as the crowd cheered.
There was a flurry of acts: a horse race between Pony Express riders, a war dance among the Indians in full regalia, a reenactment of the Deadwood Stagecoach ambush, and a gunfight between lawmen and “bad men”—with the lawmen winning, of course. “Wild buckin’ broncos” were lassoed by cowboys. “Hunters” pretended to shoot buffalo. Holding a Winchester rifle at his hips, and without taking aim, Carver put on a display of his deadeye shooting skills, first hitting a series of stationary targets, and then hitting dozens of objects that his assistants threw high into the air: blocks of wood, stones, four glass balls at a time, and a dozen silver dollars.
Then came the last act of the show—what everyone had been waiting for. Indians in feathers and war paint, whooping and waving their bows in the air, raced across the arena toward a mother and her children huddled in a small log cabin. The spectators rose in their seats as more Indians, dazzling and fierce, poured into the arena, circling the cabin, preparing to attack.
Suddenly, the announcer shouted into his megaphone, “Here comes Justice!” Riding furiously toward the cabin from the other side of the arena was Carver and his cowboys, firing away at the Indians with his rifle, the gunpowder smoke filling the air. One by one, the Indians fell to the ground, pretending to be dead, and the audience cheered with delight. The frontier mother and her children had been saved from a scalping.
As Carver turned and made his last bows, Austin’s residents kept cheering. For those few moments, they were able to remember a time when the men in white hats always won and the bad men always lost—a time, at least, when everyone knew who the bad men were.
It was a feeling that lasted exactly four weeks—until November 10, to be precise. The judges who made up the Court of Appeals of Texas, which was based in Galveston, announced that they had reviewed the appeal filed by Jimmy Phillips’s lawyers over his murder conviction, and they agreed that the prosecutors had not presented proof, as they had promised they would at the beginning of the trial, that Jimmy ever knew of Eula’s infidelity.
Nor, ruled the judges, had any evidence been presented by the prosecutors tying Jimmy to his wife’s murder. The jury’s judgment was “reversed and remanded,” and Jimmy’s case was returned to Austin’s district court for a new trial.
* * *
Jimmy was brought back to the county jail from the state penitentiary, and District Attorney Robertson allowed him to be released on bail to live at his father’s home with his young son Tom. Robertson most likely had a strategic reason for establishing bail: he hoped Jimmy would head to a saloon, start drinking, and either tell someone that he had murdered Eula or, at the least, confess that he knew about her trips to Mae Tobin’s. Then, with the new evidence, Robertson would have him rearrested and retried.
Jimmy, however, said nothing, and by all accounts, he didn’t go on any drinking sprees. Residents who saw him on the Avenue said it just made no sense whatsoever that this young man could have ripped apart his wife and placed firewood on top of her body.
As the Christmas season arrived, some citizens anxiously wondered if the Midnight Assassin—or whoever was doing the killings—would stage another Christmas Eve attack. But Austin remained perfectly peaceful, free even of “petty crime,” according to a report in the Daily Statesman. On New Year’s Eve, Sul Ross celebrated his inauguration as Texas’s new governor with a banquet and a ball at the newly opened Driskill Hotel. He stood on a platform and in his tinny voice told the assembled guests—at least a thousand in all—that he wanted his tenure to be known as “the era of good feeling in Texas.”
Governor Ireland was at the ball, already talking about what he would be doing if he were chosen to be U.S. senator later that month. (In that era, prior to the passage of the Seventeenth Amendment to the U.S. Constitution, the members of the state legislature, not the voters, picked the senators.) For his campaign, he had produced a pamphlet titled The Man of Destiny, which listed all of his accomplishments, and in an article written for the North American Review, he had laid out what he believed Texas would look like in fifty years: “Teeming millions will occupy its soil.… Commercial and trade will be at its height … and Texas, loved and protected by its gallant sons, and pushed forward in the grand march of improvement by their brave, strong arms, and the prayers and smiles of its beautiful ladies will bloom and blossom!”
Many legislators, however, had been receiving campaign contributions from railroad barons, who had no fondness for Ireland. They called him “Oxcart John” because he had opposed a proposal to give subsidies to railroads to build more tracks through rural Texas. (Ireland said the railroads were already making plenty of money.) When the vote for U.S. senator took place at the end of January, the winner turned out to be a late entry into the race, John H. Reagan, a longtime politician and supporter of the railroads. Ireland returned to his hometown of Seguin, near San Antonio, to practice law. He never ran for office again, and, according to one biographer, lapsed into “depression.” Like William Swain, he was destined to become a minor footnote in the state’s history.
* * *
In late March 1887, four months after Jimmy Phillips’s release from prison, District Attorney Robertson filed a motion in state district court to have the case against him dismissed. Robertson did not directly comment on the question of Jimmy’s innocence: he only said that no new evidence had emerged to support a conviction. But perhaps to save face—or perhaps because he was being pushed by his brother and members of the Citizen’s Committee of Safety to get at least one conviction—he said he would be prosecuting Moses Hancock later that year for the murder of his wife.
That trial began in June. Because T. E. Moore was no longer interested in working as a special prosecutor—since the Phillips trial, he had been elected to the legislature—Robertson hired a former U.S. assistant attorney, Jack Evans, to assist him. The prosecutors’ first witnesses included neighbors of the Hancocks who testified that they heard no noise whatsoever coming from the Hancock home on Christmas Eve, the implication being that if a man had jumped the fence, axed a woman, and jumped back over the fence, they surely would have heard something.
The prosecutors also called a couple of neighbors who testified that they heard Moses (who had been out of jail on bond since his arrest) tell a completely different story than the one he originally told Marshal Lucy about what had happened in his backyard on Christmas Eve. They said Moses had informed them that there had been two men standing over his wife, and that one of them had pulled out a pistol and threatened Moses to stay back.
The key witness was a man name
d Joseph Gassoway, who had known Moses for many years. After the Christmas Eve murders, he had been hired by Marshal Lucy, using money provided by the Citizen’s Committee of Safety, to work as an undercover officer and keep in close contact with Hancock. Gassoway said that one night while the two men were on a camping trip in West Texas, Moses had gotten very drunk and begun talking about how he wanted to “hang up” Thomas Bailes (the private detective) for having him arrested. Gassoway said Moses had told him, “Them damn sons of bitches down at Austin are trying to work up something on me, but they have not got anything, nor never will, out of me.” Gassoway said Moses then had asked him if he thought his daughters would “give him away.” If he had to, he said, he would flee to Brazil so that the police and private detectives wouldn’t be able to find him.
Hancock’s defense attorney was John Hancock, the same attorney who had defended Jimmy Phillips. He was so furious that Moses was being prosecuted that he had taken on the case for free. His cocounsel was an old friend, Bethel Coopwood, a rather eccentric lawyer who raised camels on his ranch outside the city, several of which he had sold to the Barnum & Bailey circus. The two defense attorneys portrayed Moses as a man who had turned to alcohol after the murder of his wife to deal with his grief. He had told his contradictory stories about Christmas Eve only after imbibing large amounts of whiskey. The defense attorneys also accused Gassoway of inventing the story about his camping trip with Hancock, claiming he was only after part of the reward money.
Hancock didn’t testify. But his eldest daughter, Lena, came to the witness stand to say her parents had “lived happily together.” Yes, she admitted, her mother had found fault with Moses’s drinking, but he had “never laid a hand” on her and certainly hadn’t touched Lena or her younger sister. And yes, she continued, her father got angry, but he was still a good man.
Lena then testified that her mother had not worked up the courage to show her father the letter she had written telling him that she was going to leave him and move to Waco. Instead, she had put the letter in the bottom of a box of artificial flowers, which was where Mrs. Hancock’s sister had found it. The authorities were wrong, Lena said. Her father had no motive to murder her mother.
The Midnight Assassin: Panic, Scandal, and the Hunt for America's First Serial Killer Page 20