by Dean King
That day, after the inquest, the Band, including the Skean and Counts boys, arrived at the Ryans’ with Duff and Coon. Roane County prosecutor John Vandale, who had marital ties to the Band, saw the prisoners but made no effort to protect them. Arrested on the warrant sworn out by Tom Ryan, Perry Drake and a man named Frank Shamblin were soon ushered into the house. The gang took the four prisoners west to a fork of the Poca River. There, they separated. A fugitive from the state of Virginia named Zack Hubbard and half the men took Duff to one safe house. The constable Squire Gibson and the rest of the men led the other three to another half a mile away. The Lynn Camp schoolhouse stood in between the two. At dusk, using the password blackboard, the gang reassembled at the schoolhouse. However, a number of citizens unaffiliated with the Band had learned the password and used it to get in. There, they heard the gang deliberate the fate of the prisoners. Cain Counts, who had set fire to Nathan Cunningham’s stables and provided an alibi for his brother Wade when he was arrested for Nathan’s murder, argued that they should execute Duff and Coon. In the end, they voted to free Shamblin and Drake, who was married to a Kiser, and to hang Duff and Coon. Ches Coon’s own uncle Ben Coon, a scofflaw who had been in and out of jail most of his life and who was so belligerent that he had been left by four wives, agreed to lead the killing.
A mob went and got Coon and dragged him down the creek to the schoolhouse. Drunk and eager for sport, they hanged him from an ironwood tree so that his toes just touched the ground. While he struggled at a losing cause, they hooted encouragement, wagered on his longevity, and guffawed.
Another group of men tramped off to the other house. Duff’s wife had showed up, and he was consoling her. Ben Coon and Wade Counts tore him from her grasp, and the pack, which included Cain Counts, many Skeans—among them Dick, Peter, Pop, and Bill, the last having recovered from his bullet wound—and several Kisers, dragged him to the schoolhouse. On the way, one of the Kisers stabbed Duff in the stomach. Outside the schoolhouse, Duff coughed up his last words: “You’re killing an innocent man.” Wade and Cain Counts pulled his head back and slit his throat. Duff’s blood spewed so horrifically in their brother Si’s face that he passed out.
The next morning, Sunday, October 16, John Vandale inspected Lynn Camp and saw Coon still hanging from the tree and Duff lying in the road in a pool of blood. Several of the killers met Vandale and impaneled their own jury for a sham inquest, which determined that a mob of “unknown persons” had killed Duff and Coon. The gang claimed that Coon had confessed before dying and had implicated Drake as a principal in Ryan’s murder and Cunningham as the mastermind behind it.
That day, Nathan’s funeral sermon was supposed to have been preached over his grave. Instead, Cunningham grieved for his brave nephews, the Texan, and the minister for whose murder he was being framed. The Band, meanwhile, attended their church and gloated that Nathan Cunningham’s funeral would never be preached by Father Ryan.
With the help of Si Counts’s testimony, the county prosecutor obtained an indictment against Dan Cunningham and Perry Drake. As the Band mobilized to hunt them down, Cunningham got wind of it and fled to Charleston, where he could be protected by the Eureka agency. But that was hardly the end of it. An escaped convict from Ohio, a horse thief posing as a detective named Wells, convinced Tom Ryan to swear out warrants for Alf Burnett and his partner William Baldwin (later the famous railroad detective) as accessories to the murder of his father. Ryan, whom Dan now deemed a “willing tool in the hands of the murderers,” also swore out a warrant for him.
KEEPING UP THE PRESSURE ON Cunningham, the Band ransacked the home of his wealthy cousin Isaiah Cunningham; harassed Sam Tolley, who was married to a Cunningham; and threatened to exterminate the Cunningham family altogether. But even after Band members secured the warrants for Dan’s arrest, they never dared to cross the Kanawha County line to track him down. “Nor,” he said, “did they try to serve the warrant when Alf Burnett was with me in Jackson County or even when I was alone.”
In fact, these warrants had no merit, but the Band hoped to use them as a bargaining chip. Vandale offered up a face-saving deal, informing Cunningham that if he would stay out of Roane County, the case would be “nolled,” or dropped. Cunningham responded that when it was time for the trial, he would be there. He would come with plenty of protection, too, to keep from being ambushed.
The savvy Burnett knew how to solve one problem: he advised Ohio officials of the whereabouts of Wells, who was recaptured and returned to prison in Ohio. Eureka detectives also learned that there was only one Winchester in the area, and it belonged to Si Counts. The gun quickly disappeared, though; Vandale sent it to John Hammons, a party to Nathan’s murder, to be hidden. Burnett and Cunningham knew that ultimately they were fighting a no-win battle in Jackson and Roane counties. They decided that for the time being, they would leave the Band to stew in its own juices.19
Chapter 13
Diplomacy Failed
Fall and Winter 1887
Like the other men in this true story, Bad Frank Phillips was complex, a fact that might not need to be stated if it were not for history’s tendency to simplify and turn flesh-and-blood men into “good guys” and “bad guys.” So was his mentor Colonel Dils, who, despite a shocking fall from grace during the war, showed great benevolence to war orphans and freed slaves after it. Even Cap Hatfield, the most universally demonized of the feudists, a pathological killer by some accounts, eventually spurned violence to study law and then start a legal practice.1
The Pike County election following Bad Frank’s appointment as a deputy sheriff happened to be one of particular interest to the Hatfields, and they sent word to him to stay away or, failing that, to come unarmed and without warrants. Otherwise, they warned, they would kill him. This proved to be a gross underestimation of Bad Frank’s character.
His looks were deceiving: “Instead of being the rough, bearded fellow, whose picture imaginative newspapers have printed,” James Creelman later wrote in the New York Herald, “I found a graceful youth whose face was more like that of an Indian girl than that of a Kentucky border fighter. His eyes are large, soft and expressive, and he blushed when talking about himself. There is no hair on his face, save a faint or dark down on his upper lip.”2
Appearances aside, Bad Frank was a rat terrier of a man. Though small, he was known to be tough and extremely courageous. He would become one of the Hatfields’ worst enemies, so ruthless that he was feared by even the McCoys, whose side he was on. Although he came from an old and respected Pike County family, he had been born in the upheaval of war, in July 1861, and his temperament forever bore the scars. His father, Billy, had been pressed into service as a mountain guide for Rebel Bill Smith, but as soon as he could, he fled from the Confederates and joined his brothers John and Frank in Company H of Colonel Dils’s Thirty-Ninth Kentucky Mounted Infantry. Within two months, he was captured. After being marched to Richmond in early 1864, he contracted smallpox in the infamous Belle Isle prison and died. Frank’s mother never recovered from her grief and passed away shortly after the war. Frank—like Perry Cline—became a ward of Colonel Dils.3
Dils, however, was an imperfect mentor, still shaking off his stunning and public disgrace during the war. Within fifteen months of having formed the Thirty-Ninth Kentucky Mounted Infantry regiment, he had apparently cracked under the stress of military life. A married man, civic leader, and business paragon, Dils, whose wife had spent several months working to gain his release from a Richmond prison at the beginning of the war, openly and lasciviously consorted with a prostitute in camp, even in the company of his officers’ wives. His administration of the regiment had been equally unruly. He flouted the regulations for handling confiscated war matériel and was accused of pocketing the proceeds from the sale of nine hundred horses taken from the farms of Southern sympathizers. Widely denounced by his men, he was dishonorably discharged from service by U.S. secretary of war Edwin Stanton.4
Dils appa
rently had his influence on Phillips, who became a drinker and a womanizer. Like Dils, Phillips had two sides. Some called him “cautious, circumspect and shrewd.” He was a friend of the unfailingly respectable Cline. Others swore he was a bully who had no qualms about stopping innocent men on the road and making them dance by shooting his pistol at their feet, a stunt that set him howling with laughter.
In 1878, at the age of seventeen, he had married a first cousin, Matilda Phillips, but the marriage was quickly annulled. In 1883, he wed Mary Rowe, with whom he had a number of children, though fidelity, like sobriety, was not his strong suit.
Phillips was not “your ordinary deputy,” Kentucky adjutant general Sam Hill allowed. According to Hill, he was a “handsome little fellow, with piercing black eyes, ruddy cheeks and a pleasant expression,” but he was a “mighty unpleasant man to project with.”5
As for the 1887 Pike County election, Phillips let the Hatfields know that his official business demanded that he be there and that he would certainly bring along those bench warrants. If the Hatfields came, he boldly warned, he would either catch or kill them.
During the election, some of the Hatfields approached within gunshot range and fired a volley up through the brush, stampeding the crowd of people gathered around. Uninjured and undeterred, Phillips stayed at the polls until late in the evening but did not feel that circumstances were ideal to try to arrest the Hatfield men. He would wait.
ON SEPTEMBER 10, spurred on by Cline, Governor Buckner officially requisitioned West Virginia governor Willis Wilson to arrest and surrender Anse Hatfield and his followers to Kentucky to be tried for the murder of the McCoy brothers. Three weeks later, Wilson’s response reached Buckner. The requisition was denied pending an affidavit, which, the letter explained, was required by state statutes.6
On October 13, Buckner sent the requisition again, this time accompanied by the required affidavit. However, by now the Hatfields and their supporters had deluged Wilson with letters urging him to reject Kentucky’s demands. The governor realized that sending the Hatfields to trial in Kentucky had little political upside for him in his home state and could potentially be disastrous for him as well as his political party.
An 1887 bounty for Devil Anse, signed by Kentucky governor Simon B. Buckner. (West Virginia and Regional History Collection, West Virginia University Libraries)
The Hatfields had a significant political ally of their own. John B. Floyd, a former state senator (thanks in part to Devil Anse) and now the acting assistant secretary of state, intended to run for governor. Floyd’s roots were in Logan County, and he would need to carry the district to gain his party’s nomination. When he heard of the application to Governor Wilson, he sent word to the Hatfields urging them to produce a petition declaring that they were peaceful mountain farmers who had been oppressed and abused by the relatives of a Kentucky villain, Randolph McCoy, and begging the governor not to capitulate to Kentucky.
Devil Anse heeded Floyd’s advice. “The Hatfield Regulators rode up and down the creeks and branches of half of Logan County, carrying their repeating rifles and the petition,” reported John Spears in the New York Sun. “Every man met signed the petition.”
The stage was now set for a stalemate of epic proportions, with Kentucky demanding justice, West Virginia demanding protection from outside authorities, and lawyers and politicians working the middle, often for their own self-interest. The bluff and irritable Buckner, warmly called “the old warhorse” by his officers during the war for his authoritarian streak, responded irritably, ratcheting up the tension as an increasingly vitriolic correspondence careened back and forth between the state capitals.7 Days and then weeks passed, and West Virginia authorities made no effort to arrest the wanted men and deliver them to Kentucky authorities.
By early November, Perry Cline could contain himself no longer. On the fifth, he drafted a letter to Governor Wilson—an act that later, in court, would be cast as impertinent and inappropriate, a breach of protocol and a usurpation of power. “Several days ago I had the required affidavid made out and sent with the requision for the Hatfields,” Cline wrote, with deference. “Will your excellency be so kind as to inform as to the status of the case?” Having heard about the petition and that the Hatfields had hired lawyers to lobby against warrants being issued, he went on to plead his case. The petition was meaningless, he explained, because the Hatfields could “make the people sign any kind of petition they want.” He grew up near them and knew them personally: “They are the worst band of meroders ever existed in the mountains, and have been in arms since the war; they will not live as citizens ought to; they stand indicted in the county in 4 bad cases of murder.”
Cline complained that Pike County could not hold elections without the Hatfields showing up to sell moonshine and running voters away from the polling grounds. He concluded with a statement about the motives of Pike County: “We want peace and want the laws executed, & do not want our citizens butchered up like dogs, as these men is doing. This county… wont do any harm to the Hatfields, except to see they get the law.”8
Wilson did not respond to Cline’s letter. Instead, Cline received a reply from West Virginia secretary of state Henry Walker, dated November 21. The requisition had been honored, Walker told Cline, for all of the indicted men except Elias Hatfield and Andy Varney, who had shown evidence that they were not in the area when the killings took place. But there was a catch: Walker informed Cline that warrants for the other eighteen would be issued upon receipt of a fee required by the state, which amounted to fifty-four dollars.9
TIRED OF THE DELAYS, Perry Cline encouraged Frank Phillips to apply pressure. Bad Frank traversed the Tug River a week later. The record of the events that followed, including several arrests of the indicted men, is confounding. The actions and missives from multiple parties crossed and tangled with a Shakespearean flourish. No two accounts are exactly alike, and some vary widely.
Bad Frank was a man of action, to the point of being rash. On the night of December 9, he went after Tom Chambers, one of the indicted men. Bad Frank and Randall McCoy’s sons Big Jim and Sam reached Chambers’s house at eleven o’clock. The unsuspecting target was in bed. Inside, a coal fire hissed on the hearth. Outside, a bulldog stood guard. Before it could rouse the sleeping inhabitants, the three men quickly dismounted. Sam rushed to the front door. Bad Frank and Big Jim ran around to the back. Big Jim rammed the rear door with his shoulder, knocking it down. Unrestrained, the massive dog ripped into Bad Frank’s thigh as an alarmed Chambers came running. With one revolver, Bad Frank shot the dog. With the other, he took aim at Chambers’s forehead, stopping him in his tracks.10
Bad Frank had gotten his first man—unfortunately, an innocent one: the Tom Chambers that he had arrested was the stepfather of the wanted Tom Chambers. The younger man, born Tom Mitchell, was an illegitimate child, and after Tom Chambers married his mother, he was called variously Chambers or Mitchell but was best known by the nicknames “Guerilla” and “X.”
On December 12, Preacher Anse’s brother Sheriff Basil Hatfield and Perry Cline, acting as deputy sheriff, locked the innocent Tom Chambers in the Pike County jail. The next day, using Perry Cline’s stationery and claiming to be an agent of the governor of Kentucky, which in a general sense he was, Bad Frank wrote to Governor Wilson, enclosing the required fee, fifteen dollars, for warrants for Devil Anse, Johnse, Cap, Dan Whitt, and Albert McCoy (whom he identified as Selkirk’s son). “As to Elias Hatfield and Andy Varney,” he said, “we do not care for. Did not intend to intercept them.” And regarding some of the rest, he noted, “Some… is dead and some gon and left the contery.”11
On December 17, Wilson’s office deflected Bad Frank, replying that fees should be sent to the secretary of state. This would prove to be doubly fortuitous for the Hatfields. It not only delayed the process but brought into play their staunch ally John B. Floyd. Bad Frank was out of what little patience he possessed.
Without waiting for the pape
rs that he sought and that he despaired of ever receiving, on December 20, Bad Frank again crossed the Tug to resume his own extralegal and ad hoc extradition process, this time with Big Jim and his cousin Bud, the murdered Jeff McCoy’s brother. They rode up to Perryville in McDowell County, where they had heard they might find Selkirk McCoy working on the railroad. In a little crossroads store near Perryville, they did find him, along with a bonus, Mose Christian, and, catching them by surprise, they arrested both without incident. Bad Frank had thus caught two more men. Ironically, neither of them was a Hatfield, and one of them was a McCoy, albeit the McCoy who had sided with Floyd Hatfield in the dispute over the hogs.
Bad Frank and the two McCoys successfully carried their prisoners back to Kentucky and to the Pikeville jail. Now they had the Hatfields’ full attention.12
At some point, Pike County sheriff Basil Hatfield fired Bad Frank as deputy sheriff for, according to the Wheeling Intelligencer, having “made himself so conspicuous in his efforts to capture and suppress the Hatfield gang.” Sheriff Hatfield replaced him with his own son. Bad Frank, however, had been appointed an agent of the governor of Kentucky and thus still had authority to continue in his quest.13
In his February 1888 report on the feud to Governor Buckner, Adjutant General Sam Hill would claim that Bad Frank entered West Virginia “to receive the prisoners who… he supposed had by that time been arrested under warrants issued by Governor Wilson.” In a nifty bit of rationalization (and conflating the two cross-border forays), Hill explained further that Bad Frank, “learning, after he had crossed the State line, that no warrants had been issued, or at least that no arrest had been made,” and “meeting with Tom Chambers, who is said to have taken a prominent part in the murder of the three McCoy brothers, and two others… included in the indictments… could not resist so good an opportunity to arrest them.”14