On Christmas Day, 1842, Philip Upton killed one, Daniel Thomas, and this was the second homicide in the county. The killing took place in Upton's field, in Taylor township, about five miles north-west of Hagar's grove, where Upton lived at the time. The circumstances were these :
Upton was an old man, at least 55, and had a considerable family, three or four members of which were adult daughters. Of one of these daughters Thomas had spoken words seriously affecting her character, alleging that she had admitted to him that she was unchaste and had at least three paramours. This he stated to Peter Greer, who informed Upton of what Thomas had told him.
A bitter quarrel resulted between Upton and Thomas, but was finally, as alleged, made up, and the parties agreed to be friendly. It was in evidence, however, that Thomas had threatened Upton with personal violence ” to " mash his d d old head," to " beat him half to death," etc.
Thomas was a young man, unmarried. On Christmas Day he had a pistol and half a pint of whisky. He loaded his pistol with paper wads and fired it off occasionally that morning, seemingly in honor of the day. About nine o'clock he came to the residence of Jonathan Michael, where another young man, named Jeff. Shelton, was employed. Michaels directed Shelton to go to Upton's residence after a gun which Upton had obtained to repair and put in order. Shelton asked Thomas to accompany him, and the two set off together.
Reaching Upton's house, they found that the old man was out in a corn field, engaged in husking corn from the shock. They set out for him, and on the way met two of Upton's daughters, who had been out to where their father was. A dog with them barked furiously, and Shelton took Thomas' pistol and fired at the animal to frighten him.
Upton saw the two young men approaching him, and started to meet them. He habitually carried his rifle with him he never left home without it. Picking up this rifle from a pile of fodder, he leveled it at Daniel Thomas and called out, "Now, dam you, Where's your pistol? " and fired. Thomas fell, shot through the body, and died in less than two hours, where he had fallen, half covered with snow.
Upton was arrested without difficulty, and on examination before a magistrate was released, as his daughters swore that when their father fired, Thomas was in the act of drawing a pistol. In a few months Upton removed to Adair county. At the September term of the Shelby circuit court, 1843, he was indicted and soon after arrested. His trial did not come off until July 12, 1844, when a special term was held at Shelbyville by Judge McBride to try him. The jury in the case was composed of Anthony Gooch, John Gullett, Albert G. Smith, James A. Sherry, Jonathan Rogers, Charles Duncan, Samuel Blackburn, James E. Utz, John C. Utz, Robert K. Mayes, Thomas B. Mayes and James Davis.
The prisoner was ably defended by Hon. Samuel T. Glover, and Hon. J. R. Abernathy, the circuit attorney, was the prosecutor. The trial lasted about two days, and on the second day the jury returned a verdict of " guilty of manslaughter in the second degree." As they could not agree upon his punishment the judge fixed it at three years imprisonment in the penitentiary. Steps were taken to appeal the case to the Supreme Court, but they were never perfected. Upton served out about two-thirds of his term, when he was pardoned by Gov. Edwards.
In the meantime his family had removed to Putnam county. Hither the old man repaired. Not long afterward he became involved in a difficulty with a son-in-law, named Cain. One day when Upton was at work in the woods, digging out a trough from a huge log, and while his wife and a daughter were washing on the banks of the Chariton river, not far away, he was bushwhacked by Cain, who came stealthily upon him and shot him fatally with a rifle. Upton lived about as long after he was shot as Thomas did after he was shot, and both were struck in the same part of the body. Cain fled for California, but at St. Joseph a desperado quarreled with him and killed him. Then a mob rose and killed the desperado.