by lyle e davis
“Once Guilty, Now Innocent, But Still Dead.”
Tom Horn was many things - an American Old West lawman, scout, soldier, hired gunman, detective, outlaw, and assassin during his lifetime. On the day before his 43rd birthday, he was hanged in Cheyenne, Wyoming, for a murder he probably did not commit.
Tom Horn was one of the most colorful of the characters that ever came out of the old west. There is no way of knowing for certain how many men Horn killed during his killer-for-hire days, but the number is commonly believed to be in the neighborhood of 25 to 30. During his time as a Pinkerton Detective he killed seventeen men in regular shootouts during his four years of employment with them, between the years of 1890 and 1894. That would put his total killings, at between 42 and 47, putting him at or near the top of the list of homicidal gunmen of the West, ahead of, for example, men who would go on to be more famous and well known as lawman/gunfighters, including Wyatt Earp, Pat Garrett, Doc Holliday, or Bat Masterson. Of the Old West gunmen, with known confirmation of their shootout exploits, only Bill Hickok would be close to that number.
And yet it appears that Tom Horn was hanged for a crime he may have not commited.
In the crowded Cheyenne courtroom in September 1993, almost a hundred years after Tom Horn’s hanging for first-degree murder, the trial was recreated using all the statements and evidence known, as well as the alleged confession, and acted out in the same location of his real trial, after which he was acquitted. The linchpin for the prosecution was a questionable “confession” given by a drunken Tom Horn to a federal officer operating out of his jurisdiction, Joe LeFors. The conversation was recorded, but only in part, by a legal reporter who, together with a deputy sheriff, was a witness. LeFors had planted them for a single purpose – to “cinch” Tom Horn. LeFors himself acknowledged that he was operating under the instructions of the district attorney, Walter Stoll, whose own ambitions perhaps exceeded Joe LeFors’. His apparent obsession with winning a conviction gained him reelection to office.
This is when the New York Times ran its now famous headline, “Once Guilty, Now Innocent, But Still Dead.”
Let’s go back to the beginnings and try to understand who this man, Tom Horn, was . . . and why he was the way he was.
Tom Horn was born near Memphis, Scotland County, Missouri, on November 21, 1860. He left home as a young teen, probably in part because of an abusive father and his desire for adventure. At sixteen, he joined the army as a scout, and rose through the ranks to become chief of scouts in the Southwest region in 1885. It was as chief scout that he tracked down the notorious Geronimo and, being fluent in both Spanish and Apache, negotiated Geronimo's surrender.
After quitting the army, Horn wandered the gold fields, working as a prospector and eventually a ranch hand, and in 1888 even won a rodeo championship for steer roping. It's also thought that Horn may have killed his first man sometime in this period, a "coarse son of a bitch," he would later boast, possibly in a dispute over a prostitute.
He worked as a deputy sheriff in Colorado for a spell. His pursuit and capture of a gang of horse thieves, plus his reputation as an Army scout and Indian fighter in the 1880s, attracted the attention of the Pinkerton Detective Agency, which he joined in 1890. He worked out of the Denver office, roaming the Rocky Mountain area, hunting down train robbers and other outlaws, and promptly acquired a reputation for fearlessness. On one occasion, for example, Horn rode -- alone -- into the deadly outlaw hideout known as Hole-in-the-Wall, and captured the train robber Peg-Leg Watson, without firing a shot. In his report on that arrest, Horn stated in part "I had no trouble with him."
However, Horn not firing his weapon was rare. He had a unique trait of being seemingly without concern if called upon to use deadly force. In his four years of employment with the Pinkerton Detective Agency, Horn killed seventeen men.
His eventual termination from employment with the Pinkerton Detective Agency, however, was not as a result of his killings, but rather due to his committing a robbery in Nevada while working for them. In Charlie Siringo's book, "Two Evil Isms: Pinkertonism and Anarchism", he wrote that "William A. Pinkerton told me that Tom Horn was guilty of the crime, but that his people could not allow him to go to prison while in their employ." More likely than not, this was due to the agency's desire to avoid negative press. Siringo would later indicate that he respected Horn's abilities at tracking, and that he was a very talented agent but had a dark side that could be easily accessed.
Horn resigned from the agency, under pressure, in 1894. In that same year Horn was hired by the Swan Land and Cattle Company. He may have been ostensibly there as a "stock detective" or a "horse breaker," but it was quite obvious what he was really expected to do -- kill. He was paid $600 for each rustler he killed. Coolly and methodically, Horn went about tracking rustlers down and shooting them, often with a buffalo gun, usually from a distance, and frequently in the back. He'd then place a large rock under the corpse's head, a sort of advertisement for his skills. "Killing men is my specialty," he once boasted. "I look at it as a business proposition, and I think I have a corner on the market."
Over the course of the late 1890s he hired out as a range detective for various wealthy ranchers in Wyoming and Colorado, specifically during the Johnson County War, when he worked for the Wyoming Cattle Association. In 1895, Horn killed a known cattle thief named William Lewis, after Lewis attempted to kill him. On September 6, 1895, Horn killed Lewis' partner, Fred Powell. The description of Powell’s killing:
On the morning of September 10, 1895, Powell and Ross rose at dawn and began their day's work. Haying time was close at hand, and they needed some strong branches to repair a hay rack. Harnessing a team to a buckboard, they drove out to a willow-lined creek about a half-mile off, then climbed down and began chopping. Andy Ross had just started swinging an ax at his second willow when the distant blast of a rifle sounded. He looked around in surprise, then noticed that Fred Powell was clutching his chest. The hired man ran over to help his boss. "My God, I'm shot!" Powell gasped. And he collapsed and died instantly.
Ross had no intention of searching for the assassin. He heaved the dead man onto the buckboard, yelled and lashed at the team and got out of there fast. But he brought back the sheriff and several deputies, and to the lawmen the entire affair seemed a repetition of the Lewis killing. A detailed scouring of the entire area revealed nothing beyond a ledge of rocks that might have been the rifleman's hiding place. There were no tracks of either hoofs or boots. Not even an empty cartridge case could be found.
Once again, Tom Horn was the first and most likely suspect, and he was brought in for questioning immediately. Once again, he shook his head, kept his face expressionless and his voice very calm, and had a strongly supported alibi ready.
Prior to this time someone (presumable Horn) had been passing letters and/or notes to rustlers, other shiftless cowboys, anyone who was not desired in the territory. After the first two murders, the warning notes were rarely ignored. The lesson had been learned. The examples were plain.
When Fred Powell's brother-in-law, Charlie Keane, moved into the dead man's home, the anonymous letter writer took no chances on Charlie taking up where Fred had left off and wasted no time on a first notice: "IF YOU DON'T LEAVE THIS COUNTRY WITHIN 3 DAYS, YOUR LIFE WILL BE TAKEN THE SAME AS POWELL'S WAS." This was the message found tacked to the cabin door. Keane left, within three days.
All through Albany and Laramie counties, other men were doing the same. Houses of settlers who'd treated the company herds as a natural resource, free for the taking, were sitting empty, with weeds growing high in their yards. The small half-heartedly tended fields of men who'd spent more time rustling cattle than farming were lying fallow. No cow thief could count on a jury of his sympathetic peers to free him any longer. Jury, judge and executioner were riding the range in the form of a single unknown figure that could materialize anywhere, at any time, to dispense an ancient brand of justice the men of the new West had believed long outdated. For three straight years, Tom Horn patrolled the southern Wyoming pastures, and how many men he killed after Lewis and Powell will never be known.
In 1900 he was implicated in the murder of two known rustlers and robbery suspects in northwest Colorado. He had killed the two rustlers, Matt Rash and Isom Dart, while he was following up on what became known as the Wilcox Train Robbery, and he was possibly working freelance for the Pinkerton Agency when he did so.
He served a short stint in the army as a mule skinner during the Spanish-American War. Before he could steam from Tampa, Florida, for Cuba, he contracted malaria. When his health recovered he returned to Wyoming in 1901, this time hiring on with wealthy cattle baron, John Coble.
He is alleged to have killed around 22 to 24 rustlers during that period alone.
Horn happened to be in the area where Willie Nickell, the 14-year-old son of a sheepherding rancher, was murdered. It occurred in the Iron Mountain country of Wyoming. Willie Nickell had saddled his father’s horse at six thirty the morning of July 18, 1901. He was going to try to find a man to replace a sheepherder who was quitting his father’s employ. Kels, Willie’s father, had ordered Willie to find the man who had ridden through the area looking for work. The unwitting order led to Willie’s death.
Willie mounted the bay and headed from the family cabin northwest of Cheyenne toward a wire gate three-quarters of a mile to the west. Reaching the gate, he dismounted, led the horse through and turned to loop the gate closed.
Three shots rang out. Two followed in quick succession, then a pause, and then another. Two reached their mark. They smashed into the boy’s left back, and exited. Blood sprayed on the gate, the ground and the post. Willie stumbled sixty-five feet toward home before he dropped facedown on the rough granite gravel. Blood seeped from the exit wounds.
On Saturday, January 11, 1902, Horn met with United States Marshal Joe LeFors in Cheyenne and the two engaged in conversation. Unbeknownst to Horn, two witnesses were secreted in the next room: a short hand stenographer, Charles Olnhaus, and Laramie County Deputy Sheriff, Leslie Snow. Olnhaus would later serve as Clerk of the United States District Court. During the course of conversations over two days, Horn allegedly admitted that he killed Nickell with his Winchester Model 1894 30-30 rifle and placed a stone under Nickell's head as his "sign." Horn told LeFors that he, Horn, had been paid in advance and received $2,100 for killing three men and taking five shots at another. He told LeFors that the reason there were no footprints is that he was barefoot. LeFors asked whether Horn had carried the shells away, to which Horn responded: "You bet your [expletive deleted] life I did." Additionally, Horn admitted to the unsolved murder of William Lewis and Fred Powell near Iron Mountain in 1895. On Monday, January 13, Horn was arrested in the bar of the Inter-Ocean Hotel by Laramie County Sheriff Edwin J. Smalley, accompanied by Deputy Sheriff Richard A. Proctor and Chyenne Chief of Police Sandy McNeil. Deputy United States Marshal Joe LeFors watched.
During Horn's trial, the prosecution introduced a vague confession by Horn, taken while he was intoxicated with alcohol given by the deputies questioning him. Only certain parts of Horn's statement were introduced, distorting the significance of the statement. Additionally, perjured testimony by at least two witnesses, including lawman Lafors, were presented by the prosecution, as well as circumstantial evidence that only placed him in the general vicinity of the crime scene.
Glendolene M. Kimmell, a school teacher that Horn had begun dating around 1900, testified on his behalf during his trial, stating that he was being set up, and that the ongoing feud between the Nickell/Miller families should make it clear that someone from the Miller family committed the murder. She further testified that Jim Miller (no relation to the Oklahoma outlaw Jim Miller) was nervous on the morning of the murder. Jim Miller and the Nickell boy's father had been in several disputes with each other over the Nickells' sheep grazing on Miller's land.
It is still debated whether or not Horn committed the murder. Some historians believe he did not, while others believe that he did, but that he did not realize he was shooting a boy. Whatever the case, the common consensus is that whether he did or did not commit that particular murder, he had certainly committed many others.
Chip Carlson, who extensively researched the Wyoming vs. Tom Horn prosecution, concluded that although Horn could have committed the murder of Willie Nickell, he probably did not. According to Carlson's book "Tom Horn: Blood on the Moon," there was no actual evidence that Horn had committed the murder, he was last seen in the area the day before the murder, his alleged confession was valueless as evidence, and no efforts were made to investigate involvement by other possible suspects. In essence, Horn's reputation and past history made him an easy target for the prosecution.
Tom Horn was called to the stand on Friday, August 9, 1901.
STOLL (the prosecutor). State your name, occupation and residence.
HORN. My name is Tom Horn; I suppose my occupation is that of a detective, as near as I can get at it. When I am at home I reside at Mr. Coble’s ranch in Albany County; that has been my home for a number of years.
STOLL. Mr. Horn, we understand that you have been up around this section of the country a good deal and have laid around the hills a good deal of the time and have had an opportunity to observe people, things etc. We would like know if there is anything you can tell us about the killing of Willie Nickell. If you saw anything or recollect around there at that time?
HORN: I was in the country just prior to the killing of that kid a day or two.
STOLL. Do you know what day he was killed?
HORN: No, I do not.
STOLL. It was Thursday the eighteenth of July?
HORN. Now, I will tell you I don’t know about the dates, but I know on Monday of the week on which he was killed, on Monday morning, whatever date that was, I left Billy Clay’s --- I went over to Miller’s ranch ... I went to the head of a hay valley this Monday and went to Miller’s ranch Monday night.
I was there all day Tuesday, and on Tuesday I went up [i.e., to the west] to the head of the creek that Miller lives on. Passed down to where Nickell [might have] had his sheep in Johnny Coble’s pasture. I went up there and found they hadn’t [the sheep had not gone into Coble’s pasture] and my business was ended. I went back to the Miller’s ranch and stayed there again that night. That was Tuesday night; I left there Wednesday morning.
STOLL. The kid was killed Thursday, did you say?
HORN. Yes, sir. I left there Wednesday morning; it was along before the middle of the forenoon after I got breakfast.
STOLL. Up to this time did you see any stranger in that locality, anybody riding along?
HORN. No, sir.
STOLL. Did you know Willie Nickell yourself?
HORN. I don’t believe I ever saw him. I know Nick [Kels] very well himself but I don’t think I ever saw any member of his family, only at a distance.
STOLL. Are you acquainted with the Miller family?
HORN. The family I do not know at all, only as I met them that night. I met Jim Miller before over on the [Laramie] Plains. I met him one evening, he and Whitman. Coble and myself got there in the springtime, the river was up pretty well, and went over to the Bosler Station to get a barrel of beer. We got it and came back. That was the first time I ever see him. He invited me to visit if I ever come through that part of the country. I happened to have a little business in there and I called....
STOLL. When you went away Wednesday, which way did you go?
HORN. I went down the river [toward the southeast] and up to what we call Colcord Place [a pasture owned by the Two Bar, one-half mile east of Nickell’s land]. I thought maybe the sheep might be in there. I pulled across through the hills over on the head of the Sybille. This is the time [of year] you shift the cows outside.... I have been doing that except six or seven days. I was [going] in[to] Laramie to see Colonel Bill [sic]….
At the end of the fifth ballot, two jurors voted for acquittal. The jury then examined all of the testimony. After re-examination, the two hold-out jurors voted guilty. At the conclusion of the two-week trial, on October 24, 1902, at 4:20 p.m., the jury foreman called to the bailiff telling him that the jury had reached a verdict. Seventeen minutes later, with the jury in the box, the verdict was read. Guilty of First Degree Murder.
Tom Horn had a legal defense team whose work in 1902 was described by the lawyer who represented him in the retrial as the “worst he had ever studied.” And Tom Horn’s own foolish statements in cross examination, driven by an ego that Walter Stoll played as if on a musical instrument, helped drive one of the nails into his own coffin.
Townspeople captured and returned Tom Horn to Jail
after a failed escape attempt
After a botched escape attempt, Horn spent his last months writing his memoirs. During his final months in jail he spent his time in weaving the rope that would shortly hang him.
Tom Horn, braiding the very horsehair rope he would be hanged with
There was an air of finality in Horn’s letter to Coble on November 17, 1903.
Proctor told me that it was all over with me except the applause part of the game.
You know they can’t hurt a Christian, and as I am prepared, it is all right. I thoroughly appreciate all you have done for me. No one could have done more. Kindly accept my thanks, for if ever a man had a true friend, you have proven yourself one to me.
Remember me kindly to all my friends, if I have any besides yourself. Burke and Lacey have not shown up.
I want you to always understand that the stenographic notes taken in the United States Marshal’s office were all changed to suit the occasion. The notes read at the trial were not the original notes at all. Everything of an incriminating nature read in those notes was manufactured and put in. It won’t do any good to kick at that now, so let ’er go.
If any one profits by my being hung, I would be sorry to see them disappointed.
It would, perhaps, be somewhat of a trying meeting for you to come to see me now. Do as you like. It might cause you a good deal of pain. I am just the same as ever, and will remain so.
The governor’s decision was no surprise to me, for I was tried, convicted and hung before I left the ranch. My famous confession was also made days before I came to town.
I told Burke to give you some writing I did; be sure and get it. You will not need anything to remember me by, but you will have that anyway. Anything else I may have around the ranch is yours.
I won’t need anything where I am going. I have an appointment with some Christian ladies tomorrow, and will write you of their visit tomorrow night.
I will drop you a line every day now, till the Reaper comes along. Kindest to all.
Horn is quoted one time as saying: "I seen a lot o' things in my time. I found a trooper once the Apache had spread-eagled on an ant hill, and another time we ran across some teamsters they'd caught, tied upside down on their own wagon wheels over little fires until their brains was exploded right out o' their skulls. I heard o' Texas cattlemen wrappin' a cow thief up in green hides and lettin' the sun shrink 'em and squeeze him to death. But there 's one thing I never seen or heard of, one thing I just don't think there is, and that's a sportin' way o' killin' a man."
According to several sources, a rumor spread that an effort to spring him free would be made the next day.
Sheriff Ed Smalley had no intent of allowing his most infamous prisoner to escape. With assistance from the governor, he had arranged for armed troops to surround the block where the jail and courthouse were located. A Gatling gun from Fort D. A. Russell was mounted on the roof, with a Sergeant Mahon, “an expert gunner of the Thirteenth Artillery” stationed in the jail every night.
Sheriffs from other communities were stationed in the complex, armed with shotguns and repeating rifles.
The invitations to the hanging were duly issued. The prosecution could invite twelve, Horn six. Kels Nickell was denied an invitation. Roman Catholic and Episcopal priests visited with Horn, but Horn denied to Charlie Irwin that he had gotten religion. Invitees reported to the rope barriers at the courthouse at 7:00 a.m. On the roof, Sheriff Smalley's gatling gun stood guard. While waiting, one Denver Post reporter told the others as to the number of executions he had attended. The executions were passé, he said. They were no more emotional that "the killing of a rat." Later, it was discovered that the stone-hearted reporter for the Post cried during the hanging.
On November 20, 1903, Horn was led to the gallows by Deputy Proctor and T. Joe Cahill who at the time was a clerk. Cahill later served as Chief of Police in Cheyenne 1934-1940 and was active in rodeo circles including the Madison Square Garden Rodeo from 1928-33. Cahill apparently exhibited some nervousness. Horn commented, "What's the matter, Joe? Ain't losing your nerve, are you?" Deputy Proctor placed the noose made from Horn's own rope over Horn's head. Horn obliged by ducking his head and thrusting it through the noose. Sheriff Smalley and Joe Cahill then picked Horn up and placed him on the trap.
Tom Horn has the distinction of being one of the few people in the "Wild West" to hang himself.
A local inventor had designed a special gallows, which made the condemned man hang himself. The new type of gallows used an automatic trap activated by the weight of the convict, eliminating the need for an executioner. The trap door was connected to a lever which pulled the plug out of a barrel of water. This would cause a lever with a counter-weight to rise, pulling on the support beam under the gallows. When enough pressure was applied, this would cause the beam to break free, opening the trap and hanging the condemned man. Horn also is said to have woven the rope that he was hanged with, while in jail awaiting his execution.
On the morning of November 20, 1903, after a large breakfast, Tom Horn was led to the gallows, where straps were buckled around his arms and legs. By all accounts, Tom was the least nervous of anyone at the event, even to the point of joking with the sheriffs gathered to witness the hanging. The legend goes that his last words, uttered from the gallows, were, "Hurry it up. I got nothing more to say." A noose was fitted around his neck, and as the Right Reverend Dr. Rafter of St. Marks Episcopal Church offered prayers. Two friends, Charles B. Irwin and Frank Irwin, sang the hymn "Life is Like a Mountain Railroad," When Cahill and Sheriff Smalley lifted Horn onto the trap-door, this activated a spring that started the 'machine.' Thirty-one seconds later, the trap doors opened and the life of the range detective was over.
His body was claimed by his brother, Charles, and transported to Boulder, Colorado. He is buried in Boulder County, Colorado, in the Columbia Cemetery, ten graves from the southern roadway.
At the completion of the execution, one of the singers, Charlie Irwin noted, "He sure died game."
Charles Horn, right, claims the body of his brother, Tom Horn