10
That’s the history of New Mexico: kill somebody or steal something and you can sure get a good office.
—J. A. WOODWARD
SINCE HIS BRIEF STINT as Billy the Kid’s attorney in 1881, Albert Jennings Fountain had solidified his power and influence in southern New Mexico Territory. The fiery Republican had served in the territorial legislature as Speaker of the House. He had chased raiding Apache warriors, rustlers, and thieves, as the leader of a mounted militia unit he had organized himself, and he served ably as assistant U.S. district attorney in the county seat of Las Cruces. In 1894, when a group of prominent cattlemen formed the Southeastern New Mexico Stock Growers’ Association, they hired Fountain as a special investigator and prosecutor. In less than a year’s time, Fountain’s dogged efforts resulted in fifteen men finding new lodgings in the territorial prison—and that was only the beginning. In January 1896, in the same Lincoln County courthouse from which Billy Bonney had escaped nearly fifteen years before, Fountain obtained thirty-two indictments against twenty-three men for cattle theft and the defacing of brands.
Albert Jennings Fountain.
Collection of the author
The accused in these latest indictments knew they could be looking at as much as ten years in prison. But on February 1, as Fountain and his eight-year-old son, Henry, were returning from Lincoln to their home in Mesilla, something terrible happened. At Chalk Hill, a low rise just west of the windblown gypsum dunes known as White Sands, a mail carrier noticed that the tracks of Fountain’s buckboard turned off the road. There were additional sets of tracks from horses and sharp-edged cowboy boots, and a pool of dried blood the size of a man’s wide-brimmed hat soaked the sand next to the road. Behind some nearby bushes, three empty brass cartridges glistened in the sunlight.
A hastily organized posse discovered the abandoned buckboard about ten miles away. Fountain’s valise had been rifled, with various papers strewn about upon the ground—and the indictments were missing. Also missing were the prosecutor and his boy, although evidence near the buckboard suggested that their blood-dripping bodies had been wrapped in a blanket and tied to the back of a horse, which was then led away.
This crime was particularly revolting because the killers had also taken the life of the innocent child, thus breaking an unspoken code of decency, even among outlaws. Outrage swept the far reaches of New Mexico, from the governor on down, as one posse after another looked for both the victims’ bodies and for the men behind the murders.
With no progress in the case, New Mexico’s governor, William T. Thornton, urged that Pat Garrett be made a special deputy to investigate the murders. The current Doña Ana County sheriff would hear none of it, however, nor would he resign to allow Garrett to take his place. But Thornton had a backup plan for the famed manhunter. Garrett revealed the high points of his meeting with Thornton and other power brokers in a February 25 letter to Polinaria, who was pregnant with their fifth child:
Dear wife:
…I made a trade yesterday to go to work for the committee that has been selected by the most prominent men of New Mexico to hunt and bring to justice the murderers of Col. Fountain and his little eight year old boy. They pay my expenses and $150.00 per month, and $8,000.00 in case I succeed in arresting and convicting the murderers.
I arrived in Las Cruces night before last. I never saw a family so much disturbed as his family. People think that Mrs. Fountain and one of his daughters will go crazy.
I dislike very much as you know Dear Wife to be away from you, especially at this time, but here is an opportunity for me to make money and a chance for me to get the Sheriff’s Office of Doña Ana County, which is worth $6,000 a year.
Governor Thornton thinks he could put me in the office at once, but he cannot yet. However, he has not given up yet, and thinks that within a month or two he can do so….
Now wife, don’t feel despondent but be the good and brave little wife that you always have been and everything will come out alright. Get Mrs. Nelson to come and stay with you when you get sick and a Doctor if you need him. You know, if it were not that we are so poor, I would not be away from you a minute, so, if I am successful we will get located in this country, and I will never be away from you and the children again. Tell the children to be good and study hard at school.
Yours,
P. F. Garrett
Four days later, Garrett was in the saddle looking for the bodies. The bitter cold, wind, and blowing sand made the solemn task miserable as well. At Garrett’s side was Sheriff Charles C. Perry of Chaves County who had captured Indian Territory outlaw Bill Cook and his partner Jim Turner, a feat that was widely celebrated in the press, and entitled the sheriff to several thousand dollars in reward money. Now the forty-one-year-old Perry had a reputation for manhunting that nearly rivaled Garrett’s. Perry was related to one of Garrett’s old Roswell neighbors, where the two had first met. The Chaves County sheriff was as brash and loud as he was brave, and Garrett liked that.
Garrett and Perry rode back into Las Cruces after a week of fruitless searching. Garrett wrote Polinaria that he was not about to give up, and that he would start out again in a few days. “It is only a matter of time when I will succeed,” he assured her. “You know when I make up my mind to do something I never quit as long as there is any hope.” Yes, Polinaria knew. Those words—when I make up my mind to do something I never quit—revealed the essence of the lawman. He would see the job through to the end, even if it killed him—or got him killed.
The likely perpetrators had been identified by the posses within a few days of the disappearance. One set of tracks leading from the Fountain buckboard belonged to the horse of Dog Canyon rancher Oliver Lee, and Lee’s bootprints matched those found at the crime scene. Another set of bootprints at the crime scene were linked to William McNew, who was married to Lee’s niece. A third suspect, Jim Gililland, had been heard to say that if the Fountains’ bodies had to be found before someone could be convicted, that conviction would be a long time coming. And when prompted about the Fountain child, whose mother was a native New Mexican, Gililland had chillingly replied that the boy was “nothing but a half-breed and to kill him was like killing a dog.”
All three suspects were allies of Fountain’s rabid political adversary, Albert Bacon Fall, a former legislator, district court judge, and the driving force behind the Democratic Party in southern New Mexico. Fall had been responsible for these men having received appointments as deputy U.S. marshals and, later, deputy sheriffs for Doña Ana County. Lee and McNew were among the twenty-three men named in the indictments obtained by Fountain at the last term of court in Lincoln.
Garrett’s great challenge was securing evidence strong enough to convict the suspects, not the least of which was the Fountain bodies. To assist Garrett, Governor Thornton turned to the world-famous detective agency established by Allen Pinkerton in 1850. Its creepy logo featured a single human eye (with eyebrow) and the compelling motto “We Never Sleep.” Pinkerton operative John C. Fraser traveled from his Denver office to Las Cruces, where he would base himself while conducting an open investigation. Fraser met with Garrett at the Lindell Hotel in El Paso on March 8. Garrett, who had been on the job less than two weeks, told Fraser what he had concluded about the case. He believed that Lee, McNew, and Gililland had held up Fountain at Chalk Hill, but as many as five men may have been involved in the plot. Garrett did not believe that Albert Fall was there, but Fall may very well have known what was happening. He felt certain the bodies would be found within five miles of the ambush site.
Although Garrett was a man of action—that reputation got him hired by Governor Thornton—he famously reserved that action for the time and place of his choosing, regardless of any outside pressure or criticism. Ever the poker player, he was extremely adept at using psychology and deception to his advantage. He had given Billy the Kid the impression that he was disinterested, and the Kid let down his guard, and that is when Pat got him. Now Garrett was concerned that the Pinkerton’s activities might do more harm than good.
“I saw very plainly that he did not want me to go out and cause a stir by an open investigation,” Fraser wrote in his daily report. “He told me that what he wanted me to do was to try and pull everybody off from the idea that Oliver Lee, Gililland, and McNew are the [suspected] men and to stop them from talking so much.”
Garrett also cautioned Fraser that it would be impossible for a stranger to approach the Lee camp without getting shot full of holes. The outfit was cold-blooded and jumpy, he told the Pinkerton. “[I]t would be nothing for them to kill anyone whom they suspected.”
As Fraser pursued the case, he became increasingly frustrated with Garrett and Perry. Garrett never volunteered anything. Any information Fraser got came from direct questions. Often, Fraser would begin to brief Garrett about having interviewed someone, and Garrett would reveal that he or Perry had already talked to the person. “[H]e is a man who says very little,” Fraser wrote the governor.
Garrett remained cordial with both Fall and Lee, occasionally seeing them on the streets of Las Cruces or El Paso. On Fraser’s prompting, Garrett arranged a meeting with the two men in Fall’s Las Cruces law office. The attorney was quite chatty with Garrett and Fraser, freely admitting that he did not care for Fountain any more than he did a snake. He then tore into Fountain’s character, something Fountain would have willingly reciprocated if still alive—their animosity toward each other had been that great. At one point, Fall passed along a scandalous rumor from a “reliable citizen who got it from someone else” that Fountain had been caught in a “compromising position” with his daughter before leaving with his young son for Lincoln, which perhaps gave credence to some reports that Fountain had left the country of his own volition (those reports were published in Fall’s Independent Democrat). When Fraser tried to question Oliver Lee, Fall interrupted and made sure Lee did not give Fraser anything of any use to the investigation.
Governor Thornton called the Pinkertons off the case in May 1896. In July, Charles Perry, Garrett’s partner in the investigation, absconded with more than $7,000 in Chaves County tax monies and reportedly ended up in Johannesburg, South Africa. Garrett finally received his appointment as Doña Ana County sheriff in August (with the help of, surprisingly enough, Albert Fall). But Garrett’s term of office would expire at the end of the year, so in November, he ran for sheriff as an independent. At a Republican rally held in Las Cruces shortly before the election, Garrett won over the crowd with his “quiet wit and sarcasm,” but the individual who stole the show was Miss Maggie Fountain, the daughter of Albert Fountain and sister of young Henry. Loud cheers greeted Maggie as she stepped up to the podium, but the spectators quickly grew silent when the young woman began to speak. She spoke passionately in support of Pat Garrett. Only at his hands, she told the crowd, would her father’s murderers soon be brought to justice. When she finished, many in the crowd had tears in their eyes. Garrett won the election.
Garrett, now a deputy U.S. marshal as well as the county sheriff, looked into occasional leads on the Fountain case, but little of significance surfaced to add to the limited findings from the first few weeks or so of the investigation. As month after month rolled by with no progress on the Fountain case, the Territory’s patience with Garrett’s slow, deliberate methods grew extremely thin. Part of Garrett’s hesitation to act revolved around Albert Fall’s influence over the courts. Garrett had observed firsthand how skillfully the attorney could manipulate the system, and he did not look forward to facing Fall in the courtroom with the evidence he then possessed. Yet Fall was not going anywhere, or so it seemed, and when the grand jury met for the March 1898 term of the district court, several indictments in the Fountain murders were expected to be handed down.
A short time before the grand jury convened, Garrett stopped in at Tobe Tipton’s saloon in Tularosa. Seated at a table, deep into a game of poker, were Oliver Lee, Albert Fall, Jeff Sanders, and George Curry. The men asked Garrett to join them, and Garrett sat down directly opposite Lee, who faced the door and windows. As the hours passed, Garrett and Lee remained courteous, but little more. At various times, one or two of the players got up from the table for a bite to eat or to take a short nap, but the game never stopped. On their return to the table, the players often took a different seat. Not Garrett and Lee; they always faced each other. According to Curry, the game lasted for three days and three nights. Garrett was a serious poker player, but it is hard to imagine he neglected his duties as sheriff for that long. Whether it was an afternoon or seventy-two hours, when the game finally broke up, Garrett told Curry, a good friend of Lee’s, that he had something to say to Lee and he wanted Curry to listen in. The three went to Curry’s office, where Garrett asked Lee if the grand jury issued an indictment for him, how the sheriff should serve the warrant.
“Pat, you’ll have no trouble serving a warrant on me,” Lee said. “I have no reason or desire to resist the law.”
To the surprise of many, perhaps to Garrett most of all, the grand jury met and adjourned without issuing a single indictment on the Fountain case. On April 3, an angry sheriff marched down to Judge Frank W. Parker’s courtroom and petitioned the judge for bench warrants for the arrest of Lee, McNew, Gililland, and William Carr for the murder of Albert and Henry Fountain. Carr was accused of trailing the Fountains for Lee and the others. In support of his petition, Garrett filed affidavits—sworn to by himself and two members of the posse that had discovered Fountain’s buckboard—that outlined the sheriff’s evidence. With the warrants in hand, Garrett promptly collared McNew and Carr. The news of the warrants rapidly spread through Las Cruces, accompanied by a number of wild rumors. George Curry heard that Fall had been arrested as well, and he rushed down to the sheriff’s office to see the attorney. When Curry saw Garrett, he asked if Fall was in the county jail. “No, but he ought to be,” was Garrett’s terse reply.
Lee and Gililland were another matter. Garrett sent a posse out to arrest them, but they could not be found. Lee was soon spotted on the streets of El Paso, where he was overheard to say that if the court would promise him a reasonable bond, he would go to Las Cruces and turn himself in, but he would not be arrested if it meant he would languish in the county jail indefinitely.
Tall and good-looking with coal-black hair and mustache and burning dark-brown eyes, Lee was also intelligent—he was said to have one of the best libraries in New Mexico. Widely recognized as a crack shot with both pistol and rifle, the thirty-two-year-old was just as dangerous as Garrett, and like Garrett, he had done his fair share of killing. He had been on the winning side in a vicious range war, eventually carving out a small cattle empire in the southern portion of the Tularosa Basin, his headquarters being his well-known ranch at the mouth of Dog Canyon. According to some, Albert Jennings Fountain being one, he built that empire at the expense of others. Susan E. Barber, the most successful female rancher in New Mexico history, was convinced that Lee had conspired with her foreman to rob her Three Rivers ranch of a substantial number of cattle—Lee had a brand that conveniently covered Barber’s. (Susan Barber was formerly Susan McSween, the widow of Lincoln County War victim Alexander McSween. She had achieved alone the fortune Scotsman McSween had dreamed of.)
On July 11, 1898, Deputy Sheriff José Espalín stopped at W. W. Cox’s San Augustin Spring ranch on the east face of the Organ Mountains. He said he was looking for horses, but he had left Las Cruces that morning with Garrett and three other deputies on a mission to track down and arrest Oliver Lee and Jim Gililland. Garrett had sent Espalín to the ranch to see if he could pick up anything on the fugitives—Lee was known to be sweet on Cox’s sister-in-law. Espalín got more than he bargained for when Oliver Lee, James Gililland, and A. P. “Print” Rhode, Lee’s future brother-in-law, rode up. Wisely, Espalín did not try to arrest the fugitives, and Lee and Gililland did not say anything about surrendering. They exchanged pleasantries, and after a few minutes, Lee and Gililland headed off toward the low-lying Jarilla Mountains. Beyond the mountains, Lee owned a satellite ranch known as Wildy Well. Espalín left San Augustin shortly after the fugitives and hurried to Garrett’s ranch, about ten miles to the north. Garrett guessed that Lee and Gililland would stop for the night at Wildy Well and ordered his deputies to mount up. Riding with Garrett, in addition to Espalín, were Clint Llewellyn, Ben Williams, and H. K. Kearney, Garrett’s chief deputy.
Garrett’s posse set out after sundown and did not stop once across the thirty-eight dry, hard miles to Wildy Well, arriving at about 4:30 A.M. the next day. Clustered together on an open, treeless plain were a flat-roofed adobe dwelling, a nearby frame building with an attached wooden shed, a windmill, a pumphouse, a metal water tank about eight feet in diameter, and a corral. Lee’s and Gililland’s horses were in the corral, as were their saddles. Garrett, who had lost none of his bravado in the years since riding down Billy the Kid, opted to go in through the front door and surprise the fugitives.
Their Winchester rifles leveled and cocked, the posse burst into a large room where they found several sleeping forms in the darkness. Garrett used the muzzle of his Winchester to poke one body and ordered the man to throw up his hands. At the same time, someone did the same with a man lying next to him. Both of them bolted upright, terrified, their hands in the air. And that is when the confusion began. The first man shouted that the person next to him was a woman, his wife, and for God’s sake not to excite her, because she had some kind of a nervous constitution. The man repeated this two more times before the befuddled posse members stopped pointing their rifles at the trembling woman. Also in the room were the couple’s four children. The man, James Madison, worked for Lee. The posse also discovered another man in the house, Dennis McVeigh. Garrett asked Madison where Lee and Gililland were and Madison said he had no idea, but they were not around there.
Garrett ordered Madison to take him through the cellar, which he did—and there was no Lee and Gililland. The sheriff told his men to keep cool; the fugitives had to be close. Garrett left Llewellyn in the house while he and the others explored the outbuildings. By now, the sky was beginning to fill with morning light. One of the posse saw McVeigh making hand signals to someone up on the roof of the house, and then Garrett spotted a ladder leaning up against the side of the house. Lee and Gililland, it turned out, had not taken any chances after meeting Espalín at the Cox place and had taken their bedrolls to the roof. Garrett ordered Madison to climb the ladder and tell the fugitives to surrender, but Madison had no interest in sacrificing his life for the law. Garrett could not do much with the outlaws from the ground, so he and his men clambered up on top of the shed, which was less than fifty feet away from where Lee and Gililland were. Ben Williams found a spot behind the water tank.
Kearney stood up on the shed roof, and yelled at the men to surrender—and then a split second later he inexplicably fired his Winchester at them. His shot was answered instantly with rapid gunfire, and Kearney winced in pain as a bullet struck and broke his shoulder. As he crumpled, another bullet pierced his thigh. Inside the house, Mary Madison grabbed her frightened children and raced to the cellar. Garrett fired two or three shots and then ducked down below the roofline of the frame building the shed was attached to. Lee and Gililland had the advantage because they were firing from small openings in the house’s thick adobe parapet, and the possemen were crouched behind the metal roof and thin boards, which were hardly bulletproof. Garrett received several wounds to his face as the fugitives’ slugs cracked and splintered the wood. At one point, Lee thought he killed the sheriff, but Garrett had ducked his head at the last second. Williams did not have it any better behind the water tank, as Lee and Gililland’s well-placed bullets ripped through the tank’s sheet metal, sending a flood of water on top of him.
Kearney was badly wounded, and Garrett helped him down from the roof and got him in the bed of a wagon that was inside the shed. As he comforted Kearney, two more shots plowed into the shed; one of the bullets pierced the roof and lodged in a wagon wheel next to the sheriff.
“You are a hell of a lot of bastards to order a man to throw up his hands and shoot at the same time,” Lee shouted angrily when the gunfire stopped.
Garrett admitted that Kearney had fired “a little too quick.”
“Are any of you hurt?” Garrett asked.
“No,” Lee yelled back.
“You have got yourself in a hell of a close place,” Lee said.
“I know it,” Garrett replied.
Garrett tried to get them to surrender, but Lee said he had heard that Garrett intended to kill him. Garrett assured Lee that any such story was a lie; they would be perfectly safe in his hands. Lee then said that if Garrett and his posse would pull out and give the fugitives a little time to put some distance between them, he and Gililland would not shoot at any of the posse when they left their positions to retrieve their horses.
“You won’t shoot us in the back, will you?” a distrustful Garrett asked.
“You know damn well we won’t!” Gililland shouted back.
Kearney needed help, and even though Garrett still had Lee and Gililland outnumbered, the wanted men’s fortified position made any kind of assault a suicide mission. Humiliating as it was, the best thing to do was to break off the fight for now and hope to catch up to the gunmen at another time. As the posse retreated to their horses, tied to a nearby fence, Lee said he would come to Las Cruces and turn himself in if Garrett would fix a bond for him. Garrett said he had nothing to do with Lee’s bond and then rode off with his men. Sometime later, after determining that Lee and Gililland were gone, the posse came back and took Kearney by wagon to the railroad two miles away. He died from his wounds two days later. Garrett was not at his deputy’s side. He had already started back after Lee and Gililland.
WILDY WELL HAD BEEN Garrett’s best chance to apprehend Lee and Gililland. It was reported in El Paso that Lee withdrew a large amount of money from a bank there the day after the gunfight, July 13, and then disappeared into the remoteness of New Mexico Territory. Lee was not so remote that he could not plead his and Gililland’s case in several letters to Fall’s Independent Democrat, which championed the pair, railing against what the Democratic organ painted as a vendetta plotted by the large cattlemen and Lee’s political opponents. In late September, a Doña Ana County grand jury did hand down murder indictments for Lee, Gililland, and McNew. By then, Lee had publicly said he would never be taken by Pat Garrett. Lee promised he would come in peaceably if Garrett were removed from office or defeated in the upcoming election. Garrett, running again as an independent, handily won the November contest, and Lee and Gililland continued the life of fugitives. It was a less than ideal time for them to submit to arrest anyway, because their ally, Albert B. Fall, was then serving as the captain of a regiment of New Mexico volunteers enlisted for service in the Spanish-American War. Fall had desperately wanted to see action in the Cuban campaign, but the fighting had ended so quickly that he and his men never made it out of the States. The forty-eight-year-old Garrett had also sought a military commission, but the governor, Miguel Antonio Otero, refused to grant Garrett a commission until after he had arrested Lee and Gililland.
The fugitives spent all of their time constantly looking out for New Mexico’s famed manhunter, the slayer of Billy the Kid. On one occasion, Lee and some cowboys were immersed in a poker game at the Cox ranch and somehow failed to notice that a couple of cowpunchers had arrived until the two young men stepped onto the porch. Surprised, Lee and the others sprang to their feet, scattering cards, knocking chairs back, and tipping the small table over as they reached for their guns—they were that jumpy. When Lee’s staunch friend, George Curry, was appointed sheriff of the newly created Otero County, Lee saw an opportunity to end their ordeal, retain their pride, and defy Pat Garrett—all at the same time. Lee sent Sheriff Curry a letter with his terms for surrender: he would not give himself up to Garrett, nor would he spend one hour in Garrett’s Doña Ana County jail. As Lee expected, Curry traveled to Santa Fe and pleaded Lee and Gililland’s case to Governor Otero, the man who had appointed Curry sheriff. After securing the governor’s acceptance of the terms, Curry next sought out Judge Frank W. Parker in Las Cruces, who also agreed to the deal.
On the morning of March 13, 1899, Lee and Gililland boarded the southbound Santa Fe at Rincon, thirty-three miles north of Las Cruces, and took seats in the smoking car. They had heavy beards and long hair, the result of their months on the dodge. Lee also wore an uncharacteristic derby hat, one that had seen better days. Gililland concealed his eyes with a pair of wire-framed blue sunglasses. Accompanying the fugitives was their friend, a cowpoke by the name of Eugene Manlove Rhodes. Rhodes later gained fame as a writer of western fiction, his inspiration drawn from New Mexico’s mesas, mountains, and deserts, and its people, larger-than-life characters like Billy the Kid, Pat Garrett, and Oliver Lee. Before boarding the train, Lee and Gililland handed their weapons over to Rhodes, so that they were essentially traveling in his custody until they surrendered to Judge Parker at Las Cruces. Lee had telegraphed Parker from Rincon that they were on their way.
The one thing Lee, Gililland, and Rhodes did not figure into their plan was Pat Garrett being on the same train. Garrett and Captain John R. Hughes of the Texas Rangers were escorting a prisoner from the territorial prison at Santa Fe to El Paso; their prisoner was chained to a seat in the same car that the fugitives and Rhodes were occupying. Garrett, of course, did not know about the secret negotiations of Sheriff Curry, and he still held warrants for the arrest of Lee and Gililland. After the train pulled out of Rincon, Garrett walked down the aisle of the smoker and stopped beside Lee, who was holding a newspaper in front of his face. Garrett stared out the window at the passing telegraph poles and beyond at the irrigated fields lining the Rio Grande. Lee’s heart raced, as did those of his two companions, expecting any moment to feel Garrett’s pistol sticking him in the belly. Finally, the sheriff continued down the aisle and into the next car.
When the train pulled into the station at Las Cruces, Judge Parker was waiting on the platform. The fugitives stepped off the smoking car and walked straight up to the judge, who immediately accepted their surrender. Garrett, who had stepped off the train at the same time as the fugitives, had no idea as to what had just transpired on the station platform. But when it was revealed to him that he had been riding in the same car as Lee and Gililland, he was, according to one newspaper, “considerably chagrined.” Many later wondered if Garrett had in fact recognized the fugitives—perhaps he had been tipped off to Sheriff Curry’s plan and chose to be on hand simply to make things interesting. Captain Hughes never believed that possible, because he knew that Garrett was so intent on apprehending Lee and Gililland he would have gladly risked death to arrest them. Garrett later told Curry that while he did not recognize the bearded men, he certainly did notice them and considered them suspicious. He had made up his mind to hold them for questioning if they had continued on the train to El Paso.
THE TRIAL OF LEE and Gililland began on May 26, 1899, at Hillsboro, New Mexico, a rapidly declining mining town in Sierra County (the defense had won a change of venue from Las Cruces). The prosecution had opted to try the accused for the murder of little Henry Fountain first. The trial of their associate, William McNew, for the murder of Albert Fountain had occurred a few weeks earlier but the Territory had decided to drop the case, fearing that an acquittal would weaken the case against Lee and Gililland. So McNew, who had been twiddling his thumbs in Garrett’s jail while his buddies were on the run, was released on bail—he was still charged as an accomplice in Henry’s murder. William Carr, arrested with McNew in April 1898, had been granted his freedom after a preliminary hearing failed to produce convincing evidence against him. The entire focus of the Territory, then, was Lee and Gililland. Albert B. Fall, who had recently returned from his Spanish-American War service, headed up the defense team. The lead attorney and big gun for the Territory was the ringmaster of the Santa Fe Ring, Thomas Benton Catron.
Unlike Billy the Kid’s Mesilla trial in 1881, which only grew in stature as Billy’s legend grew, the Lee-Gililland trial received immediate national attention. A special telegraph line was installed between Hillsboro and the railroad, twenty miles away, so the numerous reporters present could file their stories on what happened each day. And what developed was a masterful defense by Fall, who relentlessly badgered prosecution witnesses, easily confusing them. Fall was especially merciless when it came to Jack Maxwell, the prosecution’s chief witness. Maxwell claimed to have been at the Lee ranch on the day of the Fountain disappearance and to have observed the defendants arrive on jaded horses, after which they slept outside with their guns for the next two nights. But Maxwell had also signed a contract with Garrett and Perry that promised him $2,000 if he delivered information leading to the conviction of the killers. Obviously, Fall argued, the powers that be were out to get the defendants from the beginning, when they should have been searching for the “real murderers.”
The one witness Fall failed to rattle was Pat Garrett. The sheriff was not the star witness, but he was a star attraction. On the day of his testimony, there was a noticeable increase of the “gentler sex” present in the courtroom. One reporter, overawed by Garrett’s physical presence, described the sheriff as standing over seven feet in his stockings. He was, the reporter continued, the “terror of evildoers in New Mexico for a generation.” Of course, any mention of Garrett in the newspapers included the obligatory reference to his fame as the killer of Billy the Kid. Garrett had a lot riding on this trial, and it was more than just the substantial reward money. He had assembled much of the evidence against the defendants, the men also responsible for the death of his deputy at Wildy Well. He firmly believed them guilty of the Fountain murders. A conviction would validate the decision to bring him back to New Mexico Territory to ferret out the killers. It would mean the Doña Ana County voters had been right to keep him in office, and it would validate his dogged detective work. It would make him something more than the slayer of the Kid.
On June 13, after seven minutes of deliberation, the jury returned a verdict of not guilty. Although evidence presented during the trial had been fairly incriminating, much of it was circumstantial. Fall had done a superb job of casting doubt on witness testimony—there were no eyewitnesses to the crime—and the victims’ bodies had not been found. More than all of this, though, the trial had become something larger than the defendants, larger than the victims. It had become another battleground for Republicans and Democrats, the big cattlemen and the small ranchers, the Santa Fe Ring and those outside the Ring. When the verdict was announced, the spectators in the courtroom jumped up, clapping and cheering. Lee and Gililland were mobbed with well-wishers, receiving slaps on the back and countless handshakes. Although the Territory’s prosecutors put on a good face, holding out the prospect of a future trial for the murder of Albert Fountain, they had essentially bet the house on the outcome in Hillsboro. No one would ever again face the bench for the murders of Albert and Henry Fountain, nor would Lee and Gililland ever go to trial for killing Deputy Sheriff Kearney.
Whether or not justice was served in Hillsboro will never be known with certainty. Garrett did not think so, nor did the Fountain family. Two years before, Pinkerton detective John C. Fraser had written Governor Thornton that he “felt satisfied that this entire matter will come home to Oliver Lee.” Indeed, Lee remains a suspect even now. But the cattleman also had plenty of supporters, and over a ten-year period beginning in 1918, he was elected three times as a state representative and three times as a state senator. While serving in the legislature, Lee was said to have always carried a .45-caliber pistol in a holster hidden by his long dress coat. He died in 1941, and today his old Dog Canyon ranch house has been restored and is open to the public as part of the Oliver Lee Memorial State Park.
The bodies of Albert and Henry Fountain have never been found. The entire affair has earned a place as the Southwest’s most enduring murder mystery.