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Murder on the White Sands

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On a cold February evening in 1896, prominent attorney Col. Albert Jennings Fountain and his eight-year-old son Henry rode home across the White Sands of New Mexico. It was a trip the father and son would not complete--they both disappeared in a suspected ambush and murder at the hands of cattle thieves Fountain was prosecuting. The disappearance of Colonel Fountain and his young son resulted in outrage throughout the territory, yet another example of lawlessness that was delaying New Mexico's progress toward statehood. The sheriff, whose deputies were quickly becoming the prime suspects, did little to solve the mystery. Governor Thornton, eager for action, appointed Pat Garrett as the new sheriff, the man famous for killing Billy the Kid fifteen years earlier. Thornton also called on the Pinkerton National Detective Agency, who assigned top operative John Fraser to assist Garrett with the case. The evidence pointed at three men, former deputies William McNew, James Gililland, and Oliver Lee. These three men, however, were very close with powerful ex-judge, lawyer, and politician Albert B. Fall. It was even said by some that Fall was the mastermind behind the plot to kill Fountain. Forced to wait two years for a change in the political landscape, Garrett finally presented his evidence to the court and secured indictments against the three suspects. Garrett quickly arrested McNew, but Lee and Gililland went into hiding. Lee claimed that Garrett merely wanted to kill him with a warrant for his arrest as an excuse. When both men were tracked down at one of Lee's ranches, Lee and Gililland got the best of the sheriff's posse in the ensuing gun battle, killing one deputy and forcing Garrett and his two remaining deputies to retreat. Lee and Gililland would finally surrender months later, under the condition that they would never be in the custody of Sheriff Garrett. The trial took place in the secluded town of Hillsboro. The murders of the Fountains became an afterthought as the accused men, defended by their attorney Fall, pleaded innocence. Missing witnesses plagued the prosecution, and armed supporters of the defendants, who packed the courtroom, intimidated others. The verdict: not guilty. The bodies of Albert Fountain and his young son Henry still lie in an unmarked grave, the location of which remains a mystery. Corey Recko tells for the first time the complete story of the Fountain case and, through extensive research, reconstructs what really happened to them and who the likely killers were.

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1. Albert Jennings Fountain

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Albert Jennings Fountain

Born Albert Jennings on Staten Island, New York, on October

23, 1838, Albert was the son of Solomon and Catherine Jennings.

The name Fountain came from his mother, who descended from a

French Huguenot family named de la Fontaine, which later turned into Fountain.1 Why Albert took the last name Fountain is unknown. One theory is that a mysterious murder in the Jennings family caused many members to take other names.2 Another suggests that Albert took the Fountain name so as not to give himself away as he searched in China for his then missing father.3

Fountain was educated in New York public schools and at Columbia College. It was said that during his Columbia days, at age

fifteen, he and five other students went on a tour of Europe and the

Far East. It was during this stage of Albert’s life that his father, a sea captain, was purportedly lost at sea. In Solomon Jennings’s last letter to his wife, written somewhere in the Orient, he wrote that food was running out and his crew was getting restless. He was never heard from again.

 

2. Enter Albert B. Fall and Other Men of Note

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Enter Albert B. Fall and Other Men of Note

In November 1888, Fountain ran against Democratic newcomer

Albert B. Fall for a seat in the New Mexico State Legislature.1

Fountain won the election and went on to be chosen speaker of the house. While in the legislature, Fountain pushed for public education for both boys and girls, an unpopular idea at the time. He successfully fought to have the state’s land grant college situated in Las Cruces. (It now is New Mexico State University.) He also worked vigorously for statehood.2 The rest of Fountain’s life would be intertwined with that of his opponent in the 1888 election. The two men, Fountain as a leader of the Republicans and Fall a soonto-be leader of the Democrats, grew to despise each other.

Albert Bacon Fall was born in Frankfort, Franklin County,

Kentucky, on November 26, 1861.3 He married Emma Morgan on

May 8, 1883, and they settled in New Mexico in 1887.4 According to his service record, Fall stood five feet, ten and one-half inches tall, had a fair complexion, brown eyes, and black hair.5 Despite his limited formal education, the former miner rose quickly in the

 

3. The Disappearance

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The Disappearance

On January 12, 1896, Albert J. Fountain left for Lincoln, but he did not leave alone. The rumors of an attempt on his life worried his family. Family members, especially Fountain’s easily alarmed wife Mariana, attempted to persuade him to cancel the trip, or at least not go alone. Family recollections disagree on whether it was

Fountain’s wife Mariana or daughter Maggie who had the idea that he take his youngest son Henry. Mariana certainly pushed the idea, thinking that no attempt would be made on her husband’s life when a child was with him. She finally won out and Fountain agreed that if Henry was home from school when he left, he would take him.

Henry returned home in time and went on what must have been an exciting trip for a young boy to take with his father.1

The Fountain family received a scare the first night when

Fountain’s horses arrived back home. Later, a miner who came to town delivered a note from Colonel Fountain saying that the horses had run away. Fountain’s son Albert, along with his father-in-law

 

4. Pat Garrett Summoned

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Pat Garrett Summoned

As the search parties returned, the newspapers ran with the story. Under the headline “Were They Murdered?” the February 4 edition of the El

Paso Times reported, “Yesterday El Paso’s pleasant little neighbor, Las

Cruces, was in a tempest of excitement over a report to the effect that

Col. A. J. Fountain, of that town, and his little eight-year-old son had been murdered by unknown parties . . . .” The article went on to quote

Ben Williams, who told the paper, “That’s what a man gets for prosecuting cattle thieves in New Mexico.”1

The next day, the Santa Fe New Mexican ran the headline “No

Trace Of Col. Fountain,” and, under the heading “Parental Solicitude,” editorialized: no doubt is entertained that the lips of Col. Fountain and his son have since been stilled forever by their cruel and vengeful captors on the theory that “dead men tell no tales.” Of course there could be no motive for murdering the child except to put a dangerous witness out of the way . . . . God grant that the dark mystery that shrouds this awful, this hideous, this unspeakably cowardly crime may be lifted, and that at least the

 

5. Bring in the Pinkertons

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Bring in the Pinkertons

Shortly after Pat Garrett began his work on the case, Governor

Thornton brought in additional help. Garrett was a man of action, a man who could round up the suspected parties. What Thornton sought next was a professional investigator. He called in the

Pinkertons.

The Pinkerton National Detective Agency had been founded in

1850 by Scottish immigrant Allan Pinkerton. For years, Pinkerton men served as ruthless strikebreakers and bodyguards, most notably for President Lincoln. Pinkerton private detectives also pursued some of the most wanted men in the West, among them the James and Younger gangs, the Hole-in-the-Wall gang, Butch Cassidy and the Sundance Kid, and the Wild Bunch.1

Thornton contacted the Pinkertons towards the end of February.

It had been worked out ahead of time with James Cree that their investigation would be paid for by the Southeastern New Mexico

Stock Growers’ Association. Cree also sent Thornton the letter he received from Colonel Fountain, dated October 3, 1895, showing

 

6. Assistance from Fall

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Assistance from Fall

On Friday, March 13, Albert Fall called on Pat Garrett in his hotel room. When he stopped by Garrett’s room, Fraser must have been surprised to see Fall there. After Fraser and Fall had exchanged a few pleasantries about the weather, Fraser left so Garrett and Fall could continue their conversation.

Fall told Garrett that he wanted him to have a commission as a deputy sheriff, regardless of the outcome of the sheriff’s contest.

Although an obvious ploy to get on Garrett’s good side, as it seemed he would inevitably become sheriff sooner or later, the increasingly frustrated Garrett was glad for whatever help he could get. Fall promised to go to Santa Fe and throw his support behind Garrett.1

Garrett was to leave for El Paso later that day. He told Fraser before he left that he hoped to be placed in office before he went out again, so that he would have the power to act if he saw fit.

Fraser noted, “This will keep me here until he goes out, for I fail to find anyone who wants to go out with me on this trip alone as driver and guide . . . .”

 

7. Decision in the Sheriff’s Contest

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Decision in the Sheriff’s Contest

A decision in the sheriff’s contest came down on March 19. Judge

Bantz ruled in favor of Numa Reymond and instructed him to take office the next morning. Unfortunately, it did not appear to be a given that Garrett would be made chief deputy, and subsequently sheriff. Reymond told Garrett that he had made several promises to Oscar Lohman and others for positions on his staff and was not inclined to turn the office over to him. Reymond offered to make

Garrett a deputy sheriff and to assist him all he could in the Fountain case. Garrett did not want to listen to this and walked out.

This situation obviously frustrated Fraser as well, who was eager to see this settled so that Garrett could concentrate on the

Fountain case and accompany him on his trip of the sites. Fraser wrote, “I spent most of the day and evening trying to get this matter straightened out so that I would meet with no further delay, but when I discontinued matters were even worse than in the morning.” Llewellyn told Fraser that he and John Riley would go see

 

8. Exit John Fraser

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Exit John Fraser

Now that John Fraser had completed his investigation, he was to be, as planned, taken off the case and a new operative brought in to investigate.1

So on Wednesday, March 25, 1896, Fraser left Las Cruces by train and headed for Denver, but his investigation didn’t stop. On the train, he ran into Librado C. de Baca and Elfego Baca. De Baca, the man who told Fraser about Ed Brown, Green Scott, and an unidentified man, added to his story. He told Fraser of a statement made to him by one Alexander Garcia, who said “that Ed Brown,

Green Scott and the third man whose name he did not know, but whom they called Gene, had left Brown’s ranch on Jan. 29th, and returned to Brown’s ranch three or four days afterwards, that they afterwards had told that they had only gone as far as Tularosa, that one rode a gray horse, one a sorrel and the other a buck skin

[brown with black points].”2 Back on March 6, Saturnino Barela stated of the men he saw trailing Fountain; “one rode a white horse and the others dark horses . . . .”3 De Baca continued, offering his opinion that the three men “acted in a very suspicious manner after their return, keeping close to the ranch and evidently always on the lookout for some one.”4 Fraser wrote in regards to Baca and a conversation he had with current Sheriff Numa Reymond, who also happened to be on the train, “After leaving San Marcial I learned from Numa Raymond [Reymond] that Elfego Baca had requested

 

9. William B. Sayers

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William B. Sayers

Pinkerton operative William B. Sayers then took over the investigation, arriving in Santa Fe in the afternoon on Wednesday, April

15, 1896.1 When Sayers reached the governor’s office the next morning, he found the governor was out of town and he was asked to remain in town till his return. Miss Crane, the governor’s stenographer, informed Sayers that there was a letter missing from the governor’s table that had been written to him by Fraser. Sayers wrote to McParland asking that a copy of the letter be sent to

Thornton so he could see what if any information an outside party could gain from it.2

Crane also pointed out Tom Tucker, a Santa Fe deputy sheriff closely associated with Oliver Lee, to Sayers. Sayers watched him and hoped for a chance to speak with him, but it never came.3

Could Tucker have been responsible for the theft of the letter from the governor’s office?

While in Santa Fe, Sayers made plans to interview Ely “Slick”

Miller, the twenty-five-year-old who was serving his ten-year prison sentence courtesy of A. J. Fountain.4 The following morning, after getting a rig at the livery stable, Sayers drove out to the penitentiary and met Colonel Bergamer, who ran the prison, in his office. Upon learning that Sayers planned to be in town through the next day,

 

10. Ed Brown

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Ed Brown

After arriving in Socorro, William Sayers learned that Maximiano

Griego, the man Miller claimed Brown would hire to kill McDonald, was in jail at the time of the Fountain murder. This information originated from a man named Doherty, who also stated that Brown allegedly had said that he could find the bodies. Sayers reported,

“Mr. Doherty is quite positive that Brown did not kill Fountain, but he is equally certain that Brown knows all about the affair.”

From Doherty and Elfego Baca, Sayers learned that Green

Scott had left the C. N. ranch to, as he claimed, attend court in

Lincoln, and returned after the murder of Fountain. Doherty and

Baca were both in Lincoln at that time and did not see Scott there.

Baca said he spoke to Scott once about the killing and “Scott said he was glad of it and wished to God they had gotten the rest of the family.” Sayers learned that a man named Punch Williams was the main witness against Scott in a cattle rustling charge, but Williams had since disappeared and was said to have been killed by Scott.

 

11. Indictments

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Indictments

Garrett and Perry began the next month working on Luis Herrera

(a different Herrera than was with the search party) after they received information that he might know where the bodies were, but this led to nothing.1

Not much progress was made in the investigation or the search for the bodies over the next two years. Fall, meanwhile, was able to have the cattle rustling indictments Fountain had brought against

Lee and McNew dropped.2

Pat Garrett had to run in the fall elections of 1896 in order to keep the office of sheriff. Garrett was a loyal, lifelong Democrat, but owed his position to the Republicans. Torn, Garrett decided to run as an

Independent and then registered as a Republican after an easy win.3

In the meantime, life went on in New Mexico. William Llewellyn served as a delegate in the Territorial Republican Convention and was elected to the Territorial House of Representatives, of which he became speaker.4 James Gililland married.5 So did Thomas

Branigan.6 Oliver Lee was a delegate for the Territorial Democratic

 

12. Shootout at Wildy Well

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Shootout at Wildy Well

Shortly after the hearing, Fall temporarily left New Mexico. As a captain in Company D, New Mexico Volunteers, Fall joined the SpanishAmerican War. Although he did not go to Cuba and fight in the war, he stayed out of New Mexico for the time being.1 An interesting side note was the endorsements Fall received in his quest to be a captain in the war. One letter of endorsement that came to Governor

Otero was signed by Numa Reymond, Fred Bascom, John McFie,

John Riley, and Pat Garrett.2 Judging from all surviving documents, no one else received the number of endorsements that Fall did, and none of his were from expected Fall supporters. It was obvious that what they really wanted was to get Fall out of New Mexico.

Also leaving for the war was William Llewellyn, who was captain of Troop G in the regiment that would become known as

Roosevelt’s Rough Riders. Llewellyn became a lifelong friend of

Theodore Roosevelt. During the Rough Riders’ charge up San Juan

Hill, Llewellyn contracted yellow fever and was sent to a hospital in

 

13. The Trial

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The Trial

Hillsboro was a mining town in the mountains in Sierra County with a population of only 1,000. It was a small desert town whose most impressive building was the Sierra County Courthouse, which sat on a hill. The nearest railroad was twenty miles south and the only public transportation into town were the stagecoach lines from the Nutt and Lake Valley train stations.

The Union Hotel was not nearly large enough to hold all of the people expected for the trial. As a result, tent towns were set up. The prosecution set up a camp at the north end of town with its own cook. The defense set up a camp that became known as “the Oliver Lee camp,” at the south end of town. They had a chuck wagon to supply their food. Many friends and curious spectators who had come to town for the trial camped on the mountainsides.1

There was no telephone or telegraph in the secluded town. The

Western Union Telegraph Company ran a line from Lake Valley to

Hillsboro for the trial. Reporters were there from all of the area’s newspapers as well as from many around the nation, the Associated

 

14. Jack Maxwell Testifies

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Jack Maxwell Testifies

The next day led off with the witness whom the prosecution had been waiting for. Jack Maxwell, who claimed he had been absent due to illness, was brought into town by Ben Williams. Maxwell was finally sworn in and took the stand.

Maxwell stated that he had known Lee and Gililland for five or six years and that his ranch was not very far from Lee’s. “On

February 1, 1896, I was at Dog Canyon ranch and spent the night there. I got there just before sundown. When I got there I found

Mrs. Lee [Oilver’s mother], Mr. Blevins, Mr. Bailey, and Ed, the colored man. I ate supper there that night and slept in the house with Mr. Blevins.”

“What time did you get up Sunday morning?” Childers asked.

“At sunup and I ate breakfast with Mr. Blevins and others.”

“Did you see either of these defendants there for breakfast?”

“No sir.”

“What did you do that day?”

“I stayed down at the corral.”

To an unknown question, Maxwell answered, “Saw four persons mounted on two horses coming from the northeast toward the house. They came within 200 yards from me and dismounted.”

 

15. Garrett Takes the Stand

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Garrett Takes the Stand

The next morning, James Gould, whose cousin was Gililland’s wife, took the stand. The witness stated that he was at McNew’s ranch about the first of February 1896. Gililland had come in a few days before, changed horses, got some cartridges, and left. When he returned, he was accompanied by McNew. Gould said they had told him about Fountain’s disappearance, which was the first he had heard of it.

Gould also said, “Gililland said a posse was out hunting for

Fountain and at dinner at Lee’s ranch young Fountain had become frightened and jumped up and seized his gun. Fountain was eating dinner there and had a fit, vowing vengeance on the murderers of his father.”

Gould testified to a conversation he had had while working on a fence with Gililland when Gililland “told me that old man Fountain had come from Texas in a chicken coop and prized up [pried up] hell ever since he had been in New Mexico, but he wouldn’t prize up anymore. I asked him how about killing the child and he said,

 

16. The Prosecution Closes

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The Prosecution Closes

Captain Thomas Branigan led off the next morning’s testimony.

He said that he knew Lee and McNew but was not well acquainted with Gililland, then described trailing Fountain’s buckboard, the

Cruces and Tularosa road, and the area around Chalk Hill. He testified to trailing the buckboard to the spot where it was abandoned, and from there to trailing horse tracks that left that spot. He talked about finding an impression on the ground where a blanket had been laid down with something heavy on it.

He went on to describe the remnants of a dry campfire that was five miles from where they had found the buckboard. There were boot tracks surrounding it. Branigan saw the tracks of a child leading away from the fire about six feet. “I do not know how it got there nor where it went, as I could not trail it any further nor back to the fire. My conclusion was that one of the men had taken the child’s shoe in his hand or on a stick and made the impressions with it. There were only four tracks and all were made by the shoe belonging to the child’s right foot. . . .”

 

17. The Defense and Rebuttal

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The Defense and Rebuttal

It was now time for the defense to present their case. Their strategy was twofold: attack the credibility of prosecution witnesses and present an alibi for the accused. To open their case, the defense called Tom Tucker to the stand in their first attempt to prove an alibi for the defendants. His testimony was not reported.1

Pedro Gonzales, a member of the initial searching party, testified to trailing the buckboard. Gonzales said there were no tracks around the campfire when they arrived. He thought the tracks measured by Llewellyn were tracks of members of the search party. Jacovo Chavez, another search party member, repeated the testimony of Gonzales, also believing that Branigan and Llewellyn measured tracks of search party members.2

The next witness called was A. N. Bailey, an employee of Lee, who stated that he was at Lee’s Dog Canyon ranch on the day of the disappearance. The defendants were there also.3 Joe Fitchett testified that he had met Oliver Lee at his Dog Canyon ranch on the day of the disappearance.

 

18. Closing Arguments and the Verdict

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Closing Arguments and the Verdict

Before the closing arguments began, the attorneys argued as to whether the defendants could be found guilty of murder in the first, second, or third degree, or if it was to be first degree or nothing at all. The defense wanted only the latter option available to the jury.

Judge Parker ruled, “The court will submit the three degrees of murder to the jury.”1

The jury was brought in. Richmond Barnes opened the closing arguments for the prosecution. Barnes went through the chain of circumstantial evidence very thoroughly. He said that while one or a few coincidences might be explained, the whole chain could only be explained on the one hypothesis, that the defendants had murdered the Fountain child. His speech was described as “rather

flowery, and the figures of speech and quotations from The Pickwick

Papers probably went over the heads of the jury.” The interpreter had a difficult time translating some of this, and Barnes had to repeat his expressions. When speaking of Oliver Lee’s mother, who had testified as to Lee’s alibi, Barnes remarked that she had laid “a wreath of maternal duty on the altar of maternal love.” This was too much for the interpreter, and the prosecutor had to explain. Barnes spoke until the noon recess.2

 

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