by Dean King
GUERILLA MITCHELL did not keep his nose clean for long. At the end of October, he, Cotton Top, and Indian decided to get in on the bounty hunting. For these men of few prospects, catching Bad Frank would be akin to winning the lottery. Just as they were hatching their plan, however, the Tug rose to impassable heights. While they waited for it to recede, they stayed in the house of a man named Jeff Skean, who lived on Mate Creek and was a first cousin of the Hatfields and also of the Skeans, who murdered Nathan Cunningham.10
By the time the three novice bounty hunters were finally able to set out on their stab at glory, Dan Cunningham, Kentucky Bill Napier, and Treve Gibson were waiting for them. The trio had perhaps been sold out by Johnse’s wife, Nancy, who, according to a later Hatfield, “carefully studied the movements of Mounts and furnished expert information on his activities.” Indeed, if Nancy was sending information about Frank Phillips to Alf Burnett, it is possible she was playing the other side of the fence as well and providing him with news of the Hatfields.11
It is also possible that the intelligence came straight out of Devil Anse’s cabin. Charlie Harrison, who rode with the Hatfields and would marry Anna Hatfield, a cousin of Devil Anse, later explained it this way: Kentucky Bill had been shot in the foot, and the Hatfields found him. The wounded bounty hunter had reached behind his back to a sheath hidden between his shoulder blades and whipped out a bowie knife. Wildness lit his eyes, framed by greasy bangs. It was a desperate move. Devil Anse, who was known to admire a man who stood up for himself in a bad situation, was impressed. Instead of shooting Kentucky Bill, he applied his devilish charm and talked him down from a grim precipice. Kentucky Bill put his knife away. The Hatfields took him home. “Devil Anse was compassionate to the suffering of humanity,” Harrison said, and “touched by the humility of Kentucky Bill… nursed him back to health until he was able to travel.” Yet it was while Kentucky Bill was recuperating at the Hatfields’ that he learned about Cotton Top’s plans to capture Bad Frank. When Kentucky Bill finally cut and ran, he took this information with him.12
By sunup on Monday, October 29, Cunningham, Kentucky Bill, and Gibson were waiting behind trees by a creek near the head of Mate Creek, where they knew the three West Virginians would pass. Just after dawn, the three came along as expected, traveling down the creek bank. Cotton Top, the most powerful, was in the lead. He was Cunningham’s designated target while Kentucky Bill planned to take Indian and Gibson to handle Mitchell. Cunningham had a heavy stone in one hand and his rifle in the other. With Cotton Top nearing him, he maneuvered around the tree to get the best jump on him. As he did, he stepped on a stick, and it snapped loudly. Alerted, Cotton Top whipped his rifle to his shoulder. Before he could level it, Cunningham swung his arm, cracking him across the chin with the stone and stunning him long enough to pounce on him.
Shots rang out down the trail as Kentucky Bill and Gibson leaped out at their adversaries at the same time. Cunningham wrestled the gun away from Cotton Top, and the two tumbled over the six-foot-high creek bank. Cotton Top was as big and nearly as strong as Cunningham, but the detective was fighting-fit, and his fists slugged Cotton Top’s face like hammers. Cotton Top tore at Cunningham, too, doing damage, but Cunningham pounded Cotton Top again and again until the force of the blows had carried them to the far side of the creek. Finally the lawman handcuffed his battered quarry to a buckeye tree.
By the time Gibson and Kentucky Bill returned, Cunningham was washing his bruised and cut face in the creek. The two had traded pistol shots with Indian and Mitchell, but their targets had escaped. Gibson had been shot in the leg.
The three lawmen took Cotton Top across the Tug to a place called Edgar. The river was closely watched now, and it was not long before word spread and Bud McCoy and a dozen men showed up. The Kentuckians demanded that the lawmen hand their prisoner over to them. Buying time to think, Cunningham, who was not keen on anyone taking the law into his own hands, asked Bud what he would do with Cotton Top.
“Kill him,” Bud drawled, “and cut him up in inch pieces.”
This reply did not sit well with Cunningham. “Then you’ll kill me first,” he said, raising his rifle barrel.
Bud consulted with his party. They came back and promised, in such a way that Cunningham believed he could trust them, to deliver Cotton Top to Pikeville. He handed over the prisoner.
Though not as flamboyant as Kentucky Bill, Cunningham, with this capture, was now the principal hunter of the Hatfields. Wrote one reporter of the broad-shouldered six-footer who rivaled Alf Burnett and William Baldwin in fitness, power, quickness of mind, and moral conviction, “He does it as he would hunt rattlesnakes, and as his warrants for ‘moonshine’ whisky distillers often take him to the Hatfield country, he is likely to get more of them.
“Cunningham,” the reporter concluded, “is not the sort of man that one would care to have on his trail.”13
PART IV
THE HUNTERS
AND THE HUNTED
1888–1898
Chapter 20
The Trial
1888–1889
After his capture, Cotton Top Mounts confessed on at least three occasions. In the first known—and, until now, largely forgotten—confession, at Edgar, on October 29, 1888, just after he was apprehended, he naively said, “I was led into this scrape by the older Hatfields and have seen no peace since I killed the McCoy girl.” It was a major score for Dan Cunningham, who also walked off with the rifle Cotton Top would no longer need, since he would never be free again. At the end of this confession, Cotton Top said, “The Winchester with which I killed Alifair McCoy, I gave to Dan Cunningham for his kindness to me since my arrest.” Cotton Top signed the confession (“Ellison Hatfield”), as did the witnesses Dan Cunningham, Treve Gibson, Mary Daniels (the woman whipped with a cow tail by Cap), and Jane and Margaret Blackburn.
Removed from the woods, Cotton Top seemed to have no instinct for self-preservation at all.1
He reached the Pikeville County jail by Friday, November 2, 1888, and on the following Monday, was induced by the powers in Pike County to confess again, this time in a more formal setting. In this second confession, he described the circuitous route he and some of the others took and the furtive meetings to which he was not wholly privy in the days leading up to the raid on the McCoys. In addition, he confessed to the murder of the three McCoy brothers, also implicating Devil Anse, Johnse, Cap, and Bill Tom Hatfield, along with Charlie Carpenter, Guerilla Mitchell, Alex Messer, and others.
Cotton Top did not stop there. Cap had told him about the killing of Jeff McCoy, and he detailed that, naming another supposed accomplice, a man named Boney Nickels. He also told what he knew about the whipping of Mary Daniels. This confession was signed by Cunningham, Gibson, Perry Cline, Lee Ferguson, and Colonel Dils.2
AT THE END OF OCTOBER, Devil Anse’s shipment of Winchester repeating rifles arrived at Brownstown. Nan had left a zero off the order for ten thousand cartridges, so they received only a thousand, but the twenty-five octagonal-barreled rifles gave them state-of-the-art firepower. Devil Anse sent Cap and a hand named Elias Simpkins in a buckboard to get them; it would take the duo a week to accomplish their mission on the craggy bridle paths that passed for roads. Like the McCoys, the Hatfields were not going to sit idly by as a U.S. deputy marshal slowly picked them off.3
Preparing for another foray against the now heavily armed clan, Dan Cunningham stayed at the Kentucky home of Ralph Steel, near the Tug. The water was high, and the local men had seized the opportunity to head downriver on rafts of logs to be turned into timber at the mills below. That absence gave the Hatfields enough breathing room to pay a timely visit to Steel’s place. About ten of them crossed the swollen river. They beat Steel’s door in with the butt of a fence rail and captured Cunningham.
The detective was ushered across the river to the Hatfields’ stronghold. He later admitted that he thought this might be it for him, but he was a man of deep faith, and he began praying. Cap re
moved Cunningham’s hat, put it on a pole, and ordered him to bow down and kiss the earth. “Shoot and die,” Cunningham said, refusing to bow.
“No, we’ve a better fate in store for ya than this,” roared Cap. “We’re gonna kill ya slowly and show ya how to suffer.”4
Instead of following through on the threat then, they left him tied up while they drank moonshine, saving the deed for the morning. But they passed out, to a man, and Cunningham managed to free himself. “God answered my prayers again,” he later said, “and I made one of the most miraculous escapes of my career.”
IN THIS GAME OF CAT AND MOUSE, Cunningham and Treve Gibson next set their sights on Alex Messer, the man most often blamed for dispatching young Bud McCoy with a shotgun blast at the pawpaw patch. Now in his early fifties, Messer was one of the older—and also considered one of the more desperate and dangerous—members of the Hatfield contingent. On November 16, 1888, Cunningham and Gibson found the dark-eyed former Union soldier shopping in a store on Big Ugly Creek, a tributary of the Guyandotte River. The detectives struck up a conversation with the unsuspecting fugitive, who was happy to have some company for a change and invited them to his house for a drink. Their host was putting away his groceries when Cunningham slipped between him and his gun and slapped the handcuffs on him. Messer, like Gillespie and the others who had been taken so skillfully, gave up without a struggle. Later, he repeatedly lamented the fact that he had made the cardinal mistake of letting anyone come between him and his firearm.5
With the capture of Messer, the feudists were down one more man, and it was beginning to feel like the swarming lawmen were feasting. And then the Hatfields asserted themselves in a surprising way. Cunningham, an agent named Dick Evans, and another detective had perhaps brazenly and certainly ill-advisedly entered Logan County and made their presence widely known. According to the rumor making its way about, Cunningham and his accomplices intended to shoot Devil Anse, Cap, and French Ellis, whom they considered the three most dangerous West Virginia feudists. It was said that the lawmen felt confident they could mop up the rest with little trouble.6
Word of the detectives’ braggadocio soon spread to the Hatfields, and although Devil Anse had resolved to distance himself from any further violence, this was more than he could tolerate: If outside lawmen and bounty hunters could come into his own county and brashly declare that they were going to hunt him and his family down, then there would be hell to pay. He was not going to sit back and let detectives ambush his boys or storm his home. He had all the advantages. He knew that surprise was his best ally, and he set about preparing a trap.
When word came that the lawmen were on their way to Main Island Creek, Devil Anse and his men got ready. After Cunningham, Evans, and their colleague had ridden deep into the woods, the Hatfields waylaid them from a strategic position. Cunningham would prove to be one of the era’s most prolific bounty-hunting lawmen—and still live to be ninety-two years old. He and his accomplices were heavily armed and knew how to fight. This time, however, the Hatfields had the drop on them—and also a surprise, one that disarmed them in a way that Winchesters never could have.
There was no gunfight. Instead, the Hatfield contingent produced legal papers and presented them to the lawmen. They were arrest warrants for the three detectives, sworn out on January 12 before a justice of the peace. The Hatfields had turned the tables.
It was a simple yet brilliant stroke on Devil Anse’s part. In January 1889, at the height of the feud, when bounty hunters had invaded his home turf, when violence would have been easy and definitive, Devil Anse did not resort to gunfire and murder. He turned to the law to fight the lawmen.
And then, true to his roguish personality, he humiliated them with flamboyance and a distinctly Devil Anse sense of humor. As they left the deep woods, they had to cross mountain streams. At each, Devil Anse and two of his men climbed on the backs of the gunslingers and made them carry them piggyback across the water.
“Laughter was long and loud the day the feudists marched the three hawkshaws into town and turned them over to the jailer,” the historian Virgil Carrington Jones later reported.7
IN DECEMBER 1888, The Big Sandy News of Louisa, Kentucky, reported to the Hatfields’ shock that Johnse had been killed nearby. Cap, who had thought it advisable to take a holiday in Texas after the battle of Grapevine Creek, had returned to West Virginia. Shaken by the news of the death of his brother, he now wished to bring the whole feud affair to a reasonable conclusion. He was weary of being on the run.
In a letter written on January 21, 1889, and sent from the Cow Creek post office in Logan County, Cap addressed Governor Buckner of Kentucky: “I this morning appeal to you for mercy concerning my past life.” He told Buckner that he intended to surrender, “as I am greatly moved at my Brother’s death as my life is no satisfaction,” but only in Frankfort and never to the detectives that were now plaguing his family. Cap had a number of other conditions, including “that non of the McCoys men or woman shall not come as testimony against me,” and also, “no man of the Hatfield gang nor any one of the woman sex of the Hatfield faction.
“No one on earth knows any thing of my intention at this times,” Cap wrote. If he received the assurances he sought, he planned to take the train to Frankfort and would call on the governor as soon as he arrived.8
He never heard back from Buckner. Then it turned out that Johnse was not dead after all. The Hatfields were learning not to trust the press.
THE HATFIELD CLAN CONTINUED TO withdraw from the border. At the end of March and the beginning of April, Devil Anse sold 1,385 acres on the Tug and 749 acres on Mate Creek, and Johnse 580 acres on Grapevine Creek. Jim Vance Jr. sold parcels of 730 acres and 1,338 acres, also on Grapevine Creek, and Elias plots of 1,354 acres and 322 acres on Mate Creek. Their hub was now Logan Courthouse, where Elias served on the town council, a Chafin was the sheriff, and Devil Anse’s Civil War pal the Reverend Dyke Garrett could be found preaching on the courthouse steps one Sunday each month.
Still, the area was none too secure. On the night of March 26, 1889, Devil Anse’s barn, corncrib, and stables caught fire and burned down. Jerry Hatfield was visiting and managed to get his horse out, but Devil Anse was not so lucky. His loss was estimated at $500, including a prime riding horse worth $150 and 150 bushels of corn. A letter sent to the paper stated that “some one, thought to be D. W. Cunningham” was the perpetrator of this “outrage and disgrace to the public at large.” The letter, which was signed only J.H., a Hatfield presumably, perhaps Jerry, since he was there, concluded, “Now we ask the detectives to not interfere with our business and we will not interfere with them. We meant to have peace, we do not want any trouble.”9
But peace would not come so easily. That same month, Cotton Top, jailed in Pikeville since early November, was grilled by county prosecutor Lee Ferguson and signed another lengthy confession, which Ferguson publicized, increasing pressure on the Hatfield clan.
In late August, the trials of the men being held for the murders of the three McCoy brothers began with the stalwart Judge Rice presiding in Pikeville. The indictment charged a conspiracy on the part of the accused men to commit willful murder, and Ferguson felt he had compelling evidence against seven of the nine indicted: Cotton Top, Wall, Messer, Gillespie, and the three Mahon brothers. Wall was tried first. He maintained that he and his sons-in-law Doc and Plyant had not taken part in the killings; certain that they would be acquitted, they had surrendered to face the charges and put an end to their ordeal.10
Twenty-two witnesses testified against Wall, including Dan and Jeff Whitt, who had turned state’s witnesses. Randall led off the testimony, followed by Sally. Although the deaths had occurred seven years previously, her grief was still raw, and her matter-of-factness damning: “I am the mother of Pharmer, Tolbert and young Randolph McCoy,” she stated. “They are dead.” She described seeing her sons at the schoolhouse near Mate Creek:
When I got there, Val Hatfield was sitting by
them with a shotgun across his lap. I was talking, praying and crying for my boys. While over at the mouth of Mate Creek I heard Val Hatfield say that if Ellison Hatfield died, he would shoot the boys full of holes…. The boys were lying on something on the floor, tied together with a rope. I fell on my knees and began praying and begging and crying for my children. Some one said there was no use of that, to shut up.11
When asked to tell who was present at the execution of the brothers, Jeff Whitt listed twelve names and Dan Whitt fourteen. Neither mentioned Wall. Both brothers maintained that they were in the process of leaving, along with Mose Christian and one of the Mahons (one said Plyant and the other Sam), when the shooting started.12
Wall testified in convincing detail about his efforts on behalf of the three McCoys and his whereabouts when the shots were fired: “Just after we had passed the mouth of Sulphur, my brother, Elias, stopped to meet a call of nature, and while he was down the firing on the opposite side of the river began, about three hundred yards below us.”13
To the prosecutors, however, Wall was still a participant in the murders. They maintained that though he “remained with his gun on the opposite side of the river, some two or three hundred yards distant,” he did so in order to be “ready and near enough to give aid and assistance should an attempt be made to rescue the prisoners.” Wall, the leader of the group, the prosecution insinuated, both stood guard and swore his gang to secrecy or death. Those not guilty of pulling the trigger but who actively aided and abetted the commission of a crime were, under Kentucky law, just as accountable for the results.14
Since the evidence in Wall’s case was mixed, a plea arrangement on reduced charges, such as accessory to murder or kidnapping, might have been expected, but no negotiation of that sort was attempted. Furthermore, Judge Rice, who had begun his legal career in Pikeville in 1853 but later moved to Louisa, where he practiced law and served as a judge on the county criminal court, gave the jury men no leeway in their decision. They were told to return with a verdict of guilty or not guilty. If they found a defendant guilty, they could choose his sentence: life in prison or capital punishment.