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Overview
For weeks in 1902 it commanded headlines. All of Wyoming and much of the West followed the trial of Tom Horn for the murder of a fourteen-year-old boy. John W. Davis’s book, the only full-length account of the trial, places it in perspective as part of a larger struggle for control of Wyoming’s grazing land. Davis also portrays an enigmatic defendant who, more than a century after his conviction and hanging, perplexes us still.
Tom Horn was one of the most fascinating figures in the history of the West. Employed as a Pinkerton and then as a range detective, he had a reputation as a loner and a braggart with a brutal approach to law enforcement even before he was accused of murdering young Willie Nickell. Cattlemen saw Horn as protecting their way of life, but most people in Wyoming saw him as a hired assassin, an instrument of oppression by cattle barons willing to use violent intimidation to protect their assets.
The story began on July 18, 1901, when Willie Nickell was shot by a gunman lying in ambush; the killer was apparently after Willie’s father, who had brought sheep into the area. Six months later Tom Horn was arrested. The trial pitted the Laramie County district attorney against a crack team of defense lawyers hired by big cattlemen. Against all predictions, the jury found Horn guilty of first-degree murder. Despite appeals that went all the way to the state supreme court and the governor, Horn was hanged in Cheyenne in 1903.
The trial and conviction of Tom Horn marked a major milestone in the hard-fought battle against vigilantism in Wyoming. Davis, himself a trial lawyer, has mined court documents and newspaper articles to dissect the trial strategies of the participating attorneys. His detailed account illuminates a larger narrative of conflict between the power of wealth and the forces of law and order in the West.
Product Details
| ISBN-13: | 9780806154541 |
|---|---|
| Publisher: | University of Oklahoma Press |
| Publication date: | 03/31/2016 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 372 |
| File size: | 11 MB |
| Note: | This product may take a few minutes to download. |
About the Author
John W. Davis, who resides in Worland, Wyoming, has practiced law in the Big Horn Basin for more than forty years. He is the author of A Vast Amount of Trouble: A History of the Spring Creek Raid andGoodbye, Judge Lynch: The End of a Lawless Era in Wyoming's Big Horn Basin.
Read an Excerpt
The Trial of Tom Horn
By John W. Davis
UNIVERSITY OF OKLAHOMA PRESS
Copyright © 2016 University of Oklahoma PressAll rights reserved.
ISBN: 978-0-8061-5454-1
CHAPTER 1
"Willie Is Murdered"
Early in the morning of July 18, 1901, Willie Nickell rode to a gate about three-quarters of a mile west of his parents' homestead. The homestead was in an area of southeastern Wyoming known as Iron Mountain, which sits along the eastern edge of the Laramie Mountains, a long chain of highlands extending from near the Colorado-Wyoming border northward for more than a hundred miles. Willie's father, Kels Nickell, had told his son to ride the twelve miles to the tiny hamlet of Iron Mountain to find a man who might be hired as a sheepherder, and shortly before 7:00 A.M., Willie saddled a horse and rode up the draw leading southwest from his home.
The Iron Mountain area was well settled in the early twentieth century, and most of the inhabitants made their livings raising cattle. The settlers included Willie Nickell's parents — his father and mother, Mary. Kels Nickell was born and grew up in Kentucky and had enlisted in the army in 1875; he served in Wyoming and Montana and was discharged in 1880. In 1881 he married Mary Mahoney in Cheyenne; she was born in County Cork, Ireland. In 1885 the Nickells took up their homestead in southeastern Wyoming, and by 1901 they had nine children. Willie was the third child born to them.
The land Willie Nickell rode through on July 18 was not the majestic mountain country found in much of Wyoming, but rolling, rugged hills, spotted with aspen, sumac, and limber and ponderosa pines. Sagebrush filled the substantial spaces between larger vegetation. Where the road lifted out of the draw, Willie rode into a ponderosa pine stand, open woods of bushy pines among rock outcroppings, and at this opening Willie encountered a wire gate he knew well.
Willie Nickell was fourteen, a quiet, well-behaved boy of average height for his age but stockier than normal. He was wearing overalls, a little vest, a light hat, and a shirt, and he was riding his father's horse. Willie dismounted at the gate, opened it, and then led the horse through. He had apparently closed the gate and resumed his journey when he saw something, or someone, that alarmed him, and he returned to the gate and started to reopen it.
When a bullet suddenly slammed into his body, he must have been profoundly stunned and confused. That bullet hit him just a few inches below his left armpit and blew out through his sternum. He froze in that position until a second bullet hit Willie's left side just below the first bullet and went through part of his intestines and his aorta, coming out just above his right hip. The boy ran when the second bullet struck, like a deer shot through the heart. Adrenaline surged through his body, compelling him to flee frantically, but he did not get far. Willie ran back toward his home, but collapsed within about twenty yards, falling on his face.
The killer emerged, walked to the boy's body, and turned him on his back. He pulled back Willie's shirt, apparently to check his handiwork. The killer also placed a small rock under the boy's head. About a mile and a half away, Kels Nickell, the boy's father, heard three shots but was not alarmed by them, assuming someone was hunting.
The body lay on the ground undiscovered all that day. His parents, sitting at home that evening, observed that Willie had not returned and were concerned, but they assumed their boy had not been able to catch up to the man he had gone looking for and so had stayed overnight in Iron Mountain.
The next morning, Freddie, Willie's ten-year-old brother, was sent on a chore along the same road Willie had traveled the day before. He returned in a few minutes, riding up to the ranch house, crying. His mother, standing at the door, asked, "What is the matter?"
"Willie is murdered," sobbed Fred.
Stunning though this news may have been, the people in the Nickell house acted quickly. Kels directed his brother-in-law, William Mahoney, to hitch up a wagon and drive Mary to the gate. Other members of the family accompanied the two. Kels and J. A. B. Apperson, a civil engineer and surveyor who was at the Nickells's ranch to do a survey, walked directly to the gate and arrived there first.
They found Willie lying on his back with his head toward the Nickell house (to the east), his hands to his sides, and his body on the road. Willie's bloody shirt had stiffened, but it was open, exposing his wounds. The two men noted a rock about two inches in diameter under the left side of the boy's head, and Kels observed that the stone did not seem to lie there naturally as there were very few rocks in the road. Apperson traced a trail of blood back to the gate, which was open and dropped at the posts. He concluded that Willie had been turned onto his back.
After the wagon arrived, they placed Willie's body in the wagon and Mahoney drove it back to the house. Kels Nickell and Apperson then began a cursory examination around the gate. They looked for tracks, a task made difficult because of the rough ground and because cattle had come through the area. Each day the Nickell family put their milk cattle into a pasture near the gate, and shortly before Willie had arrived there on July 18, his brother Fred had taken the animals to this pasture. With the gate down, the cattle had moved through it, though it was not clear if the small herd had passed through the area around the gate once or twice. The area was rough and broken, so that even without the cattle's obliterating wanderings, tracks were hard to discern. Nickell and Apperson found just one track, probably belonging to Willie. They also looked for cartridges but found none, and they confirmed as well that Willie had not been carrying a firearm.
Kels Nickell felt he knew who had killed his son. "Considerable trouble" between Kels and his neighbor Jim Miller — ugly, long-standing, sometimes violent disputes — not surprisingly led him to immediately suspect members of the Miller family. The fathers' clashes had drawn in the male children of the two large families. Nickell went directly to a schoolhouse located near the Miller ranch house, taking along his neighbor Joe Reed. His intent was to interrogate the schoolmarm, one Glendolene Myrtle Kimmell, who boarded with the Millers.
Arriving at the school, Nickell found Miss Kimmell, as she was known, and demanded to know whether Jim Miller and his two sons, Gus and Victor, had been present at breakfast the day before. Miss Kimmell was apparently taken aback, and knowing of the trouble between the two families and not wanting to carry "news between them to keep it up," evaded Nickell's questions. When told of the murder, she seemed more responsive but still did not satisfy Nickell with her answers.
Wyomingites have always been quick to help each other in a crisis, especially in rural areas, and that afternoon neighbors came to call at the Nickells' home. The family had little time to be comforted, however. A coroner's inquest would be convened in their parlor the very next day.
CHAPTER 2The Coronoer's Inquest Convenes
Sometime Friday, July 19, Kels Nickell sent a message to authorities in Cheyenne, the Laramie County seat about forty miles to the southeast, telling of the murder of his son. Thomas Murray, the Laramie County coroner in 1901, was empowered to convene an inquest regarding any death in the county in which a person died by "unlawful means" or "by violence." Remarkably, Murray and two companions were on a fishing trip near Iron Mountain when Willie Nickell's body was found. Wyoming statutes allowed Murray to select any three citizens of the county for a coroner's jury, and he selected his fishing friends Tunis Joseph Fisher, the Laramie County district court clerk, and George Gregory, the county assessor, as well as a local resident, Hiram G. Davidson. The only men who had to travel from Cheyenne to the Nickell ranch were Deputy Sheriff Peter Warlamount and court stenographer Robert C. Morris.
Rarely used today, a coroner's inquest was frequently employed over a hundred years ago. It served not only to learn the cause of a person's death but also, if a crime was suspected, to ferret out the guilty parties. The coroner, by statute, exercised the powers and duties of the county sheriff. People could be subpoenaed to testify under oath and prosecutors could thereby interrogate all persons with potential knowledge of the circumstances of the death. Testimony was taken down and transcribed, so that if a witness was later charged, the testimony could be used by the prosecution. A coroner's inquest, when used well by a county attorney, was an excel lent means for obtaining what modern attorneys would call "discovery" — the uncovering of evidence relevant to the commission of a crime. At the same time, the process could be untidy. A coroner's inquest was an investigation usually begun with insufficient information. Unlike a trial, which was typically more focused, it meant a lot of flailing about in the dark.
Only three witnesses were called to testify at the Nickell home the next day. The first was Fred Nickell, who told of finding his big brother's body the day before. His testimony was brief, but it must have been a sad few minutes as this ten-year-old boy recounted what had to be the worst episode of his young life.
Joseph E. Reed was then called. Reed testified about his visit, with Kels Nickell, to the schoolhouse where Glendolene Kimmell taught. Reed no doubt did his best to describe the interview of Miss Kimmell, but it was obviously an ambiguous interlude. Reed spoke of how they asked Kimmell a number of questions, but he could not remember all of them. He stated that Miss Kimmell first said that neither Mr. Miller nor his oldest son Gus had been at home around seven the morning of April 18, but then she said that Mr. Miller had been there but that Gus ("Gussie") had not. She avoided answering to a certain extent, saying that it was not her duty to answer such questions about the Millers' private affairs. When told of the murder, however, she said she was ready and willing to answer questions, Reed said, but still did not seem to give any satisfaction.
Willie Nickell's younger sister Catherine (the fourth Nickell child) was called, and her testimony was precise. When asked to fix the time when Willie left the house, she said, "It was about four minutes after Papa left; he left about seven o'clock on Thursday morning." She also said that Willie went on horseback and that he "was all alone by himself." Catherine was the last witness in that abbreviated session, and the coroner's inquest adjourned until Monday morning, July 22, "for further hearing at the County Court House, Cheyenne, Wyoming."
In 1901, Cheyenne was the largest town in Wyoming, the seat of the most populous county (Laramie), and the state capital. These superlatives were impressive only within the tiny population of Wyoming, however. The state then had fewer than 100,000 people (92,531 according to the 1900 census). Laramie County, which included what would become Platte and Goshen Counties, had 20,181 citizens, of whom 14,087 lived in Cheyenne. Still, Cheyenne residents had reasons to be proud of their little city on the Wyoming plains. Created in 1867 when the Union Pacific Railroad arrived at Crow Creek in what would become far southern Wyoming, it was first known as a "hell on wheels" town, as a small army of saloon keepers, gamblers, prostitutes, and assorted ne'er-do-wells descended when the railroad arrived. Most of these people did not stay long, however, but followed the transcontinental railroad caravan when the UP continued its manic charge to the west. In a short time Cheyenne, named for the Indian tribe, settled into a more staid existence, in which ambitious go-getters started building a community. By the first years of the twentieth century, Cheyenne could boast of a number of handsome two- and three-story buildings along streets paralleling the UP track, as well as "468 business entities, ... three railroads, four newspapers, 18 restaurants, 14 grocery stores, four churches [at least eight others were unlisted], seven pool table rooms, two banks, two plumbers and one library." In addition to a UP roundhouse, Cheyenne was the site of an army post, Fort D. A. Russell, a large post office and federal building, the Cheyenne Opera House, and a magnificent railroad depot.
On July 22, 1901, when the coroner's inquest convened in Cheyenne, city residents were aroused and alarmed about the killing of Willie Nickell. An article in the Cheyenne Daily Leader stated, "Excitement over the killing is intense." A newspaper in Denver, a hundred miles to the south, predicted a lynching when the murderer was found. Willie Nickell's funeral had taken place the day before, at the Cheyenne Methodist church, and Kels Nickell had created a sensation when he barged his way to the gravesite where he kneeled and "prayed heaven for strength to slay the murderer of his son."
The first business at the July 22 courthouse proceedings was the testimony of three physicians who had examined Willie's body. Conducting their examinations was Walter R. Stoll, Laramie county attorney. It was Stoll's first appearance in the Willie Nickell murder proceedings, a case in which he would become a central figure. Stoll conducted most of the questioning of witnesses before the coroner's jury and no doubt decided who would be called to testify. He had arrived in Wyoming as a West Point graduate in 1880. Lieutenant Stoll had been assigned first to Fort McKinney (near Buffalo, Wyoming) and then to Fort D. A. Russell, but he resigned his commission in 1884 to study for the bar and entered the Wyoming state bar in 1886. Stoll did remarkably well as an attorney. An 1892 article in the Cheyenne Sun said he had a clientage "the largest and most influential of any lawyer in Cheyenne," a questionable declaration given the presence of John W. Lacey and Willis Van Devanter. Even if not up to the lofty standards of Lacey & Van Devanter, Stoll, in his third term as county attorney, had compiled a remarkable record, but he could be erratic. As Democratic state party chairman at the time of the infamous Johnson County War of 1892, he had infuriated state convention delegates with an intemperate defense of the actions of the big cattlemen who had invaded Johnson County and had to resign before the state convention could throw him out. Still, Stoll was undoubtedly an exceptional talent and his talent matched his ambition: he was a driven and aggressive lawyer. In the ten years before the murder of Willie Nickell, Wyoming newspapers were full of stories about Stoll's legal feats, which ranged from a brilliant defense in an 1891 murder case to his involvement in the most prominent civil cases in 1900. Wyoming newspapers remarked especially on his skills as an orator and cross-examiner. Stoll could not have known that his leisurely examination of three doctors in the Willie Nickell inquest would lead, in just over a year, to his greatest challenge as a cross-examiner.
The first physician called was Amos Barber, a Cheyenne doctor who came to Douglas, Wyoming, in 1885 after graduating from the University of Pennsylvania Medical School. Barber's path to Cheyenne was unusual. He was the first elected Wyoming secretary of state, and when the Wyoming legislature chose Francis E. Warren as a U.S. senator in November 1890, Barber became acting governor. He was still governor of Wyoming in 1892 at the time of the Johnson County War, and he supported in every way he could the big cattlemen who carried north their list of seventy men to be shot or hanged. His stance was profoundly unpopular throughout Wyoming, except in Laramie County, and when his term as governor was completed, he made no attempt at further political office, remaining instead in Cheyenne, and resuming his practice of medicine.
Stoll called Barber as a witness because the medical examination of Willie's body was a crucial first step in the murder prosecution. Willie's body had not been examined until three days after the boy was killed, when Barber and two other physicians went to Turnball's Undertaking Parlors in Cheyenne the morning of Sunday, July 21, 1901, to perform their work. Barber submitted his report and explained it. Although the doctor testified that he performed an autopsy, his examination would not be considered an autopsy by modern standards because he did not enter the body but only examined its appearance.
Barber testified that the two bullets hit Willie Nickell on his left side just under his arm and that each came out on his right side. Because they had taken the same slightly downward trajectory through Willie's body, he concluded that both bullets had been fired from the same position. Barber also concluded, because of a staining on the inverted edges of the entry wounds, that both shots were lead bullets of a large caliber, at least three-eighths of an inch and perhaps as large as .45 of an inch. Given the decomposed condition of the body, he supposed the wound had somewhat contracted.
(Continues...)
Excerpted from The Trial of Tom Horn by John W. Davis. Copyright © 2016 University of Oklahoma Press. Excerpted by permission of UNIVERSITY OF OKLAHOMA PRESS.
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Table of Contents
Contents
List of Illustrations,1. "Willie Is Murdered",
2. The Coroner's Inquest Convenes,
3. Who Killed Willie Nickell?,
4. The Coroner's Inquest Continues,
5. Another Shooting,
6. Tom Horn Appears,
7. The Arrest and Preliminary Hearing of Tom Horn,
8. Prologue to Trial,
9. The Trial Begins,
10. The Testimony Begins,
11. The Trial Continues,
12. A Bad Day for Tom Horn,
13. Joe LeFors,
14. Of Bullets and Bullet Holes,
15. The Defense Continues,
16. Tom Horn Takes the Stand,
17. Cross-Examination,
18. More Cross-Examination,
19. Concluding Evidence,
20. Final Arguments,
21. The Defense Responds,
22. Stoll's Last Words,
23. The Verdict,
24. The Motion for New Trial,
25. A New Era,
26. Escape,
27. The Appeal to the Wyoming Supreme Court,
28. Clemency?,
29. Tom Horn Hangs,
Epilogue,
Notes,
Bibliography,
Afterword,
Index,