What defense Bail and Fountain offered is lost to history, as indeed is the thrust of the prosecution. That a trial of such public interest then and since should have left so little record is baffling and disappointing. Neither in surviving court records nor in surviving newspapers is there more than a skeleton account of the testimony and arguments. The witnesses for the prosecution are known, as are the names of the jurors, all Hispanic. The trial lasted only two days, April 8 and 9. Whether Bail and Fountain put the Kid on the stand in his own defense is unknown.23
Testifying for the prosecution, Isaac Ellis, Bonifacio Baca, and J. B. Mathews took the stand. As one of Sheriff Brady’s companions on the morning of the killing, and as the man who had put a bullet through the Kid’s thigh, Mathews surely offered direct and compelling evidence. Ike Ellis, usually viewed as friendly to the Kid and the other Regulators, operated the store at the east edge of Lincoln. His contribution to the trial can scarcely be guessed; if he saw the shooting, the fact is unrecorded. Bonnie Baca, Saturnino Baca’s young son and supposedly the Kid’s friend, may well have watched all or part of the event, for the Bacas lived nearby. Billy felt especially grieved that Bonnie appeared against him.
The defense attorneys seem to have directed most of their efforts toward influencing Judge Bristol’s charge to the jury, although it is difficult to understand how their view of the case favored their client. They wanted the jury to find the defendant either not guilty or guilty of murder in the first degree—that is, premeditated murder. A guilty finding, in their view, required no reasonable doubt that Billy had fired the fatal shot, or had assisted in firing it, or had counseled or commanded its firing.
In substance, Judge Bristol incorporated Bail and Fountain’s position into his instructions to the jury, but he went much further. In force and content his directions virtually dictated a guilty finding. Dwelling at length on the meaning of “premeditation” and “reasonable doubt,” he all but defined those critical concepts out of existence.
In fact, on the strength of Mathews’s testimony alone, there could be little reasonable doubt, however defined, that Billy met at least the third test of premeditated murder as his own counsels viewed it. If he did not fire the fatal shot or share in firing it, he surely counseled or commanded others to fire it. The jury needed hardly any time to come up with the required verdict.
For first-degree murder, New Mexico law left no discretion in sentence to judge or jury. In returning its verdict of Billy’s guilt, therefore, the jury did “assess his punishment at death.” At 5:15 P.M. on April 13, 1881, Billy and his attorneys faced Judge Bristol for the formality of sentencing. Asked if he had anything to say, the defendant, the record noted, “says nothing.” Thereupon, the judge directed that the prisoner be turned over to the sheriff of Lincoln County to be confined in jail in Lincoln until May 13 and that on that day, between the hours of nine and three, “the said William Bonney, alias Kid, alias William Antrim be hanged by the neck until his body be dead.”
Billy voiced his feelings two days later, on April 15. Asked by a reporter if he expected a pardon, he replied:
Considering the active part Governor Wallace took on our side and the friendly relations that existed between him and me, and the promise he made me, I think he ought to pardon me. Don’t know that he will do it. When I was arrested for that murder [Brady’s] he let me out and gave me the freedom of the town, and let me go about with my arms. When I got ready to go [from Lincoln, in June 1879] I left. Think it hard I should be the only one to suffer the extreme penalty of the law.24
A little more than a week later, the governor commented on this statement. Of the Kid, a Las Vegas reporter observed to Wallace, “He appears to look to you to save his neck.”
“Yes,” was the reply, “but I can’t see how a fellow like him should expect any clemency from me.”
“Although not committing himself,” added the reporter, “the general tenor of the governor’s remarks indicated that he would resolutely refuse to grant ‘the Kid’ a pardon. It would seem as though ‘the Kid’ had undertaken to bulldoze the governor, which has not helped his chances in the slightest.”25
In his self-deception, Billy failed to appreciate his own role in shaping the governor’s attitude. By turning more and more openly to crime in 1880, he denied Wallace maneuvering room to work out some acceptable form of executive clemency. Even so, as late as October 1880, the governor was pressing Ira Leonard to do something for the Kid. With the young outlaw’s leap to fame in December 1880, however, Wallace lost all chance to help without incurring serious political consequences. And as the reporter noted, Billy did not improve his prospects by trying to bulldoze the governor.
Still, Billy had reason to believe that he had been unjustly treated. He had lived up to his part of the bargain, and others by the dozen were as guilty of crime as he. Among fifty or more men indicted for offenses in the Lincoln County War, only he was convicted of any crime—and that conviction, as he noted, carried “the extreme penalty of the law.”
Another truth must also enter into the judgment of Billy’s fate. However many other offenders deserved punishment, including those who shared in the crime for which he alone was tried, there is virtually no chance that at least one of the bullets that killed Sheriff Brady was not fired by the Kid. Only he stood convicted, but there can be no reasonable doubt of his guilt.
16
The Escape
At 10:00 P.M. on April 16, 1881, deputies quietly loaded Billy the Kid into a wagon in front of the Mesilla jail and made ready to take the road to the east. As a precaution against either an attempted lynching or an attempted rescue, authorities had spread word that he would be sent to Lincoln County in the middle of the following week. Instead, on Saturday night they slipped him out of town under cover of darkness. Seven men rode guard—a deputy U.S. marshal, a deputy sheriff of Doña Ana County, and five men specially deputized for the mission.
Three of the guards could hardly be viewed as unbiased toward the prisoner. All three had fought for Jimmy Dolan in the Lincoln County War, and all three had participated in the fatal battle at the McSween house on July 19, 1878. Billy Mathews had headed the posse that killed Tunstall, had drilled Billy in the thigh at the time of the Brady killing, and had testified against him in Judge Bristol’s court. A second deputy was John Kinney, still the rustler king of southern New Mexico but, as in the final frays of the Lincoln County War, still not averse at times to playing lawman. The third was Charles Robert Olinger.
One of two brothers who had attached themselves to Hugh Beckwith’s clan at Seven Rivers, Bob Olinger had served as a deputy U.S. marshal for more than a year. He had ridden with Pat Garrett in the failed raid on Fort Sumner in November 1880, and he claimed Marshal Sherman’s chief deputy, Tony Neis, as a close friend. “Pecos Bob,” he styled himself, and his appearance fortified the label. A fellow officer described him as
two hundred pounds of bones and muscle, six feet tall, round as a huge tree trunk, with a regular gorilla-like chest that bulged out so far his chin seemed to be set back in his chest. He had a heavy bull neck, low-browed head, short and wide, topped with shaggy hair, bushy eyebrows, and a hat-rack mustache. His arms were long and muscular, with fists like hams. Despite his build and size he was quick as a cat, and always got the best of the deal in any encounter he figured in. He could take punishment as well as hand it out. He loved to show off, and it was one of his tricks to throw his .45’s and keep a string of fire from both muzzles as long as the bullets lasted.1
Olinger stirred contradictory emotions among those who knew him. “Bob Olinger was a damned rascal and deserved killing,” declared Gus Gildea. “Bob was a murderer,” said Jake Owens, who watched him extend a hand in friendship to a victim and coolly shoot him in the belly with the other. “Bob Olinger was considerate and generous,” recalled Lily Casey Klasner, who probably was in love with him. “Noble fellow. . . brave, generous, and true as steel,” pronounced the Santa Fe New Mexican.
2
Whichever—and the weight of opinion brands him a callous bully—Olinger and Billy the Kid despised each other. Olinger held Billy responsible for the death of his friend Bob Beckwith in McSween’s backyard on the night of the final shootout. According to an acquaintance, Olinger declared that the Kid “was a cur and that every man he had killed had been murdered in cold blood and without the slightest chance of defending himself.” “There was a reciprocal hatred between these two,” observed Pat Garrett, “and neither attempted to disguise or conceal his antipathy for the other.”3
With a perverse satisfaction that he made no effort to hide, Olinger settled in the wagon on the seat facing Billy, who was handcuffed and shackled with leg-irons to the back seat. Kinney climbed in beside Billy, and Mathews hoisted himself into the seat next to Olinger. Deputy Sheriff Dave Woods drove the wagon, and Tom Williams, D. M. Reade, and W. A. Lockhart rode flank and rear.
In Las Cruces, the party paused in front of the newspaper office of Harry Newman. The Kid, reported Newman, “appeared quite cheerful and remarked that he wanted to stay with the boys until their whiskey gave out, anyway. Said he was sure his guard would not hurt him unless a rescue should be attempted and he was certain that would not be done unless perhaps ‘those fellows over at White Oaks come out to take me,’ meaning to kill him.” He made some unflattering comments about the Mesilla jail and John Chisum, and off the cavalcade clattered.4
The officers and their charge took almost five days to reach Fort Stanton. On April 20 they spent the night at Blazer’s Mills, where the loquacious Billy reenacted in pantomime the shootout of April 4, 1878, and the killing of Buckshot Roberts. The next day, at Fort Stanton, Lincoln County Sheriff Pat Garrett formally took responsibility for the Kid, and the party rode on into Lincoln.5
Lincoln had never had a jail, observed Garrett, “that would hold a cripple.”6 Billy was hardly a cripple, and the sheriff, keenly aware of his prisoner’s daring and cunning, decided not to drop him into the old cellar jail. Instead, he would be confined under constant guard in a room next to the sheriff’s office in the newly acquired county courthouse. This was the old Murphy-Dolan store on the west end of town that had played so conspicuous a part in the Lincoln County War. Billy was lodged in the northeast corner room on the second floor. The task of guarding him was assigned to Bob Olinger and Deputy James W. Bell.
As Garrett well knew, Billy’s fertile mind dwelled constantly on how to get free. Unrealistically, as he had revealed in Mesilla, he still hoped that Governor Wallace might pardon him. Also, lawyer Fountain had given the Kid reason to think further legal stratagems were worth pursuing. On April 15, while still in the Mesilla jail, Billy had written to attorney Edgar Caypless in Santa Fe urging him to press the suit to recover the contested mare, sell her, and turn over the money to Fountain.7 And finally, of course, he schemed endlessly to contrive a plan of escape—a vaulting aim considering handcuffs, leg-irons, and two watchful guards.
Olinger’s persistent taunting spurred the determination to get free. “Olinger was mean to him,” testified the Kid’s friend John Meadows. “In talking about it to me Kid said, ‘He used to work me up until I could hardly contain myself.’”8
By contrast, Bell treated Billy well. As a close friend of Jimmy Carlyle’s, whose death at the Greathouse ranch everyone held Billy responsible for, Bell had good reason to despise his charge. But he was kindly, generous, and widely liked, and he did not take out his spite on the helpless prisoner. “Never, by word or action, did he betray his prejudice, if it existed,” said Garrett of Bell. In return, Billy had confidence in Bell and “appeared to have taken a liking to him.”9
Garrett also treated Billy considerately. They discussed the boy’s various exploits and impending fate. As always, Billy was adept at self-justification. “He appeared to have a plausible excuse for each and every crime charged against him,” said Garrett, “except, perhaps, the killing of Carlyle.” At times he seemed to Garrett on the point of talking openly, but always he would draw back and intimate that no one would believe any explanation he made. “He expressed no enmity towards me,” related Garrett, “but evinced respect and confidence in me. . . acknowledging that I had only done my duty, without malice, and had treated him with marked leniency and kindness.”10
“I knew the desperate character of the man,” said Garrett later, “that he was daring and unscrupulous, and that he would sacrifice the lives of a hundred men who stood between him and liberty.”11 Repeatedly cautioning Olinger and Bell never to relax their vigilance, the sheriff laid down procedures to ensure that Billy had no chance to make a break.
A friend gave Olinger a similar warning. “You think yourself an old hand in the business,” he warned. “But I tell you, as good a man as you are, that if that man is shown the slightest chance on earth, if he is allowed the use of one hand, or if he is not watched every moment from now until the moment he is executed, he will effect some plan by which he will murder the whole lot of you before you have time to even suspect that he has any such intention.”
Olinger just smiled and replied that the Kid had no more chance of escaping than of going to heaven.12
On April 28, with Garrett in White Oaks collecting taxes, Billy made his move. Whether he planned it in advance or acted on impulse is not known. His mind may have been set in motion that morning by more of Olinger’s abuse. Ostentatiously, the deputy loaded his double-barreled shotgun with eighteen buckshot in each barrel. Looking meaningfully at the Kid, he remarked, “The man that gets one of those loads will feel it.”
“I expect he will,” Billy replied, “but be careful, Bob, or you might shoot yourself accidentally.”13
Bell and Olinger were responsible for five other prisoners as well, held in another room of the courthouse. They had been arrested a week earlier at South Fork after a dispute over water rights erupted in gunfire, taking the lives of four Tularosa residents. Now the accused murderers awaited grand jury action. About 6:00 P.M. on Thursday evening April 28, Olinger escorted these men across the street to the Wortley Hotel for dinner.14
The Kid asked Bell to take him to the privy behind the courthouse. Returning, Bell carelessly lagged behind. An interior staircase connected a back door with the upstairs center hall. Although burdened with leg-irons and chains, Billy reached the top of the stairs before his guard and turned into the hall out of view. Handcuffs did not pose a problem for Billy because his hands were smaller than his wrists. Quickly he slipped the cuffs off one wrist. When Bell appeared at the head of the stairs, Billy swung the loose cuff in vicious blows that laid open two gashes on the guard’s scalp. Bell went down, Billy jumped on him, and the two scuffled for Bell’s holstered revolver. Billy later explained that he wanted to get the drop on Bell, handcuff him to Olinger, and make his escape.
In the struggle, Billy succeeded in seizing the pistol, but Bell worked loose and headed for the stairway. Billy fired, and Bell tumbled down the stairs.
“Kid told me exactly how it was done,” said John Meadows. “He said he was lying on the floor on his stomach, and shot Bell as he ran down the stairs. Kid said of this killing, ‘I did not want to kill Bell, but I had to do so in order to save my own life. It was a case of have to, not wanting to.’”15
Walking across the yard behind the courthouse, Godfrey Gauss heard the shot and the commotion. As cook for the Tunstall hands on the Feliz three years earlier, the old German knew Billy well. Now, with Sam Wortley, he shared a little dwelling and tended a garden behind the courthouse. Before his startled eyes Bell burst from the back door and lunged toward him. “He ran right into my arms,” related Gauss, “expired the same moment, and I laid him down dead.”16
Upstairs, meantime, Billy got to his feet and dragged his shackled legs into Garrett’s office. There he scooped up Olinger’s loaded shotgun and made his way to the northeast corner room. A window in the east wall opened onto a yard below, enclosed by a low plank fence with a gate affording entry from the street. Resting
the shotgun on the windowsill, Billy waited.
Below, Gauss ran from the backyard just as Olinger and his prisoners, alerted by the gunfire, appeared in front of the Wortley Hotel. Gauss yelled for him to come quickly. Ordering the prisoners to stand firm, Olinger hurried across the street and opened the gate.
“Bob, the Kid has killed Bell,” cried Gauss.
Olinger looked up and exclaimed, “Yes, and he’s killed me too.”
As Billy recalled it, “I stuck the gun through the window and said, ‘Look up, old boy, and see what you get.’ Bob looked up, and I let him have both barrels right in the face and breast.” Olinger crumpled, his head and upper body shredded by the thirty-six heavy buckshot he himself had packed into the twin barrels of his shotgun.17
Next the Kid went to the window at the south end of the hallway overlooking the backyard and shouted at Gauss, who had made tracks for the shelter of his abode.
“Gauss, pitch me up that old pick-axe lying out there,” he said, “and let me get this chain between my feet broke in two with it.”
“Look out, Billy, here she comes,” said Gauss, who willingly cooperated through both fear and friendship.
Billy then ordered Gauss to saddle up a horse in the corral that belonged to Billy Burt, deputy clerk of the probate court.18
With the pick, Billy succeeded in severing the chain connecting his leg shackles. Looping the ends over his belt, he walked to the north end of the hall and appeared on a balcony overlooking the street. A knot of men, including the other prisoners, stood in front of the Wortley Hotel while a scattering of citizens watched silently from more distant parts of the street. Two townsmen started for their Winchesters but were restrained by others. “The balance of the population,” according to an observer, “whether friends or enemies of the Kid, manifested no disposition to molest him.”19
One of the men in front of the hotel described the scene:
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