NEW MEXICO PRISONER #1348
Karen Holliday Tanner And John D. Tanner, Jr.
On Tuesday night, July 11, 1899, William Ellsworth “Elzy” Lay (alias William H. “Mac” McGinnis), Will Carver (alias G. W. Franks), Sam Ketchum, and possibly Bruce “Red” Weaver (alias Wheeler) successfully held up the Colorado and Southern’s train Number One at Twin Mountains near Folsom, New Mexico. The enriched robbers fled west. Weaver left the group near Springer to make his way to Alma, while Lay, Carver, and Ketchum continued further west to Turkey Creek Canyon, near Cimarron.
On July 13, U.S. Marshal Creighton Foraker of New Mexico sought and received Department of Justice authority to raise of posse of five men for twenty days at $5.00 per day plus expenses. Foraker enlisted a posse comprised of Field Deputy Wilson “Memph” Elliott, Huerfano County (Colorado) Sheriff Edward J. Farr, Special Agent William H. Reno of the Colorado and Southern, teamster James Morgan, locals Perfecto Cordoba and Santiago Serna, Springer cowboy Henry M. Love, and recently arrived Easterner F. H. Smith. Three days later, the posse followed the outlaws into the canyon where three posse members caught bullets during the resultant shoot-out. Farr was killed. Love was mortally wounded and died on the morning of July 21. Smith, shot through the calf, survived the experience. Although the three robbers escaped the canyon under the cover of darkness and rain, they fared little better. Ketchum caught a bullet in his left arm directly below the shoulder resulting in his death on July 24. Lay suffered wounds in his left shoulder and back.
The resilient Lay, after several days of hiding near Elizabethtown, soon returned to the trail. Twelve days after the Turkey Creek Canyon shoot-out, he, Carver, and Arizona cowboy Tom Capehart showed up over five hundred miles away in Tom Green County, Texas, where they turned west and put in another couple of hundred miles in the saddle. By August 15, they had reached the Eddy County, New Mexico ranch of Virgil Hogue Lusk, twenty-eight miles northeast of Carlsbad.
Later that night, Sheriff M. Cicero Stewart learned of the presence of two apparent outlaws at the Lusk ranch. Accompanied by Deputies John D. Cantrell and Rufe Thomas, Stewart traveled to the ranch where they concealed themselves in an earthen tank. Shortly after daylight, Lay rode in and hitched his horse to a wagon standing between the tank and a tent. He accepted Lusk’s invitation to enter the tent for breakfast.
Hearing the approaching officers, Lay pulled his six-shooter. He sent two rounds into Thomas and one into Lusk’s wrist before a bullet from the sheriff’s gun grazed his head, leaving him stunned. Capehart had ridden for provisions and missed the action. Carver, whom the local press identified as Franks, viewed the fracas from the top of a hill, about half a mile away. Realizing that he could be of no assistance to McGinnis, Carver waved to Stewart and rode away.
In reporting the arrest, the local press described the wounded Lay as six feet tall and weighing 175 pounds with a sandy complexion and a short sandy beard. (His later prison record noted that he weighed 164 pounds, and he may have actually weighed only 145 pounds at the time of his arrest.) Lay gave his name as John Thompson, but refused to answer all other questions.
Marshal Foraker, Special Agent Reno, D. E. Farr of Walsenburg, Colorado (brother of the late Ed Farr), and Cimarron, New Mexico merchant James K. Hunt descended on the Carlsbad jail on August 22. Hunt readily identified prisoner John Thompson as William H. McGinnis, train robber. Lay, who had been using the name McGinnis since his arrival in New Mexico in the fall of 1898, continued to use the name for the remainder of his life.
Just a day after Hunt identified McGinnis, on August 23, 1899, the lawmen and Hunt accompanied the shackled McGinnis on a train to Santa Fe. Stewart, Reno, and Farr continued on to Trinidad, Colorado, to attempt an identification of another man captured the same day as McGinnis following a single-handed attempt to hold up another Colorado & Southern train at Folsom. They were about to encounter Tom Ketchum.
On September 21, authorities took McGinnis from Santa Fe to Raton to stand trial. Two days earlier, Territorial Grand Jury for the District Court of the Fourth Judicial District indicted him on the charge of premeditated murder of Edward Farr by the. His trial began on October 2, and after three days of empanelling jurors and four days of testimony, the jury took three hours to reject a verdict of guilty on the charge of first degree murder, but to return a verdict of guilty on the charge of second degree murder. On Tuesday, October 10, Judge William J. Mills sentenced McGinnis “to imprisonment for the full term of his natural life….”
McGinnis was held within the confines of the New Mexico Territorial Penitentiary at Santa Fe while the Supreme Court of the Territory of New Mexico heard his appeal (filed January 3, 1900). On May 3, 1900, the court affirmed the judgment of the District court, and the following day McGinnis was officially “received” at the New Mexico Territorial Penitentiary as prisoner #1348.
#1348, McGinnis William H.; received: 5/04/1900; sentence commenced: October 10, 1899; term: life; crime: murder; county: Colfax; pled not guilty and provided no reason for crime..
Description–race: American; age: 33; height: 5 ft. 9 1/2 in.; weight: 164; light brown eyes, light hair, light complexion. One upper front tooth broken. Bullet wound through upper left shoulder; bullet wounds in back; small scar on left of head. Born: Coles County, Illinois; occupation: laborer; marital status: single; no children [sic]; religion: none, parents were Methodists; does not know if parents are living. Temperate, uses tobacco. Can read and write, did not attend school beyond 8th grade. Self supportive since age of 21. Closest relative or friend: E. A. Cunningham, Mogollon, New Mexico.
On December 15, 1905, “lifer” William H. McGinnis walked out of the penitentiary a free man. Many tales have been written in an attempt explain McGinnis’s release. Some maintain that he was pardoned: he was not. In one tale, former outlaw Matt Warner claimed to have told “Warden Morgan [sic] a cock-and-bull story” of a rich asphaltum discovery, the location of which was known only to McGinnis. The governor and the warden then decided to pardon McGinnis in exchange for ownership of the mine. More recently, author Kerry Ross Boren substituted gold for asphaltum.
These are the actual recorded circumstances. Otero’s tenure as New Mexico’s territorial governor began on June 2, 1897 and concluded on January 22, 1906. During those eight and one-half years, 925 prisoners entered the New Mexico Territorial Prison at Santa Fe. Early in his administration, Otero established the policy of issuing a pardon or commutation of sentence “to the most deserving convict,” as determined by the Board of Penitentiary Commissioners, on New Year’s Day, the Fourth of July, Thanksgiving, and Christmas. In practice, the governor proved somewhat more generous, granting ninety-three pardons and sixty-five commutations, including five commutations where he also later granted pardons. In all cases, Otero required that “letters or petitions requesting the same were approved by the trial judge, the district attorney, and some of the jurors.”
Superintendent Holm Bursum applauded McGinniss’s role during two riots. Otero maintained that during a prison riot, convicts grabbed the young brother-in-law of Bursum, and, using him as a shield, surrounded the cell house keepers. Implored by Mrs. Bursum, McGinnis grabbed Penitentiary Clerk Billy Martin’s horse and rode into Santa Fe to notify the territorial militia. Their arrival quelled the riot.
The other riot occurred on April 17, 1901, when convicts George Stevenson (#1402), William Simmons (#1318), and Frank Carper (#1403) attempted to escape. Armed with a contraband .38 cal. Smith & Wesson revolver, the trio made a dash out of the cell house and into the main hall and a gathering of unarmed guards. Captain of the Guard Felipe Armijo raced to the tower for a weapon. Stevenson wounded Armijo when he returned with a shotgun. Stevenson also wounded Guard Pedro Sandoval before being shot and killed by Superintendent Bursum’s Winchester. Armijo shot and mortally wounded Simmons. Carper surrendered.
According to Superintendent Bursum, “During this trouble McGinnis was night engineer at the power plant and remained thoroughly loyal to the penitentiary authorities and was helpful in preventing a more serious situation.” Bursum likewise confirmed Otero’s account of the circumstances of the second riot.
In keeping with his custom, on July 4, 1905, Otero commuted McGinnis’s life sentence to ten years. Once he received a fixed term, McGinnis was entitled to good time from the date of his October 10, 1899, sentencing. Under New Mexico Territorial law, good time lowered an inmate’s sentence by one month the first year, two additional months at the conclusion of the second year, three more months after the third year, and so on through the first five years. Each additional year of good time reduced the time by six months. A ten-year sentence with good time allowed would be fulfilled in seventy-five months (six years, three months), thereby fixing McGinnis’s release date as January 10, 1906. However, he had also worked on the scenic road project between Santa Fe and Las Vegas, which further reduced his sentence and entitled him to a December 15, 1905 release, not a January 10, 1906 release as indicated by Otero and cited by many subsequent writers.
McGinnis served a total of six years and two months. Between the opening of the New Mexico Territorial Penitentiary in 1884 and New Mexico statehood in 1912, ninety prisoners were received at Santa Fe under sentence of life. Excluding those who escaped, died, were transferred to the insane asylum, or remained confined following the granting of statehood (a total of 27), the average time served under a sentence of life was seven years and nine months. The longest incarceration for a lifer was seventeen years and six months. Although good conduct occasioned the commutation of McGinnis’s sentence, it likely reduced his tenure by only a year and one-half.
Following his release, McGinnis returned to Alma and took lodging at the general store of Lewis and Walter Jones. McGinnis was a “Goddamn nice lookin’ fella, he wasn’t a big man and he wasn’t a little man. He wasn’t a blond, he was more a little dark complected and had kind of dark brown hair.” Lewis Jones also recalled, “Hell, McGinnis stayed right there with us for six months, you know, and he told us every damn thing.” Neighbor Ben Avery characterized McGinnis as a “nice fellow to talk to and a nice fella to meet.”
Herman A. Hoover, McGinnis’s contemporary, is the source for this tale concerning the outlaw’s buried treasure. McGinnis remarked to the Jones brothers that he was going out to recover a cache of money “buried under the root of a juniper tree on the Mexican border,” and he would return in two weeks. Almost two weeks to the day later, he returned with $58,000 “wrapped in a slicker on the back of his saddle.” Hoover, who knew McGinnis in Alma, opined that the money was not from the Folsom robbery as the alert express agent had thwarted the robbers; instead, he hypothesized that the loot was part of the proceeds from the November 6, 1897, Grants robbery. Hoover, however, operated from two false premises: 1) McGinnis had not participated in the Grants robbery, and 2) the Folsom robbery had been successful. Reports suggested that the Folsom proceeds exceeded $50,000; Governor Otero fixed the amount at $70,000. Colonel William French of the WS ranch wrote that the “considerable swag” from the Folsom robbery originally had been hidden in Colfax County, and Butch Cassidy and Bruce “Red” Weaver later transported it to Socorro County where they buried it. Presumably, then, McGinnis had recovered the Folsom booty.
McGinnis stored the money in a utility room behind the small bar that adjoined the Jones’s store. Hoover added, “Among the money was about $1,100 in silver. When they needed ‘change’ in the store, one of them would hand Mac some currency and he would bring them a like amount in silver. Eventually the silver was exhausted.” Hoover’s yarn has a dubious ring to it. Allowing that the Folsom robbery produced more than $50,000, it is questionable whether Cassidy, Weaver, and later McGinnis, would have burdened themselves with some ninety odd pounds of silver coins.
Colonel French said McGinnis, whom he labeled “a paladin amongst cow-punchers,” remained at Alma for two years, while Hoover indicated that Mac’s stay numbered eighteen months. Subsequent events establish the validity of Hoover’s recollection and the error of French’s. Fugitive George Musgrave arrived in Alma in late February 1907 from Dalhart, Texas. The extent of prior planning, if any, by McGinnis and Musgrave is unknown, but shortly after Musgrave appeared, he, McGinnis, and a man using the name Jack Dempsey bid good-bye to New Mexico and headed up the outlaw trail.
After traveling north along the banks of Utah’s Green River, they reached Vernal, where McGinnis looked up his ex-wife Maude and his daughter Marvel. When he learned that Maude had married Oran Curry, the three men continued northeast through Brown’s Park to the remote community of Baggs, Wyoming. The three arrived before September 9, 1907, evidenced by Dempsey’s theft of a horse from Jake W. Hildenbrand of Carbon County.
There is no evidence that McGinnis returned to the owl hoot trail. He remarried, had two more children, ranched, studied geology, prospected, tended bar, worked for the Imperial Valley Irrigation District, and drank too much. Elzy Lay, alias William H. McGinnis, passed away in Los Angeles on November 10, 1934.
1 Creighton Foraker, Albuquerque, New Mexico, to Attorney General, Washington, D.C. July 13, 1899. File 13.065; Records of Department of Justice Officials; Confidential Correspondence, 1896-1898; Record Group 60 (RG 60); National Archives at College Park, MD, hereafter Department of Justice.
2 Foraker to Attorney General, July 19, and August 28, 1899, Department of Justice. 3 B. D. Titsworth, “Hole-in-the-Wall Gang,” True West (December 1956), pp. 4- 10. Titsworth was the son of Huerfano County (Colorado) Deputy Sheriff George W. Titsworth. 4 Carlsbad Argus, August 18, 1899. 5 Ibid., August 25, 1899. 6 Territory of New Mexico v. William H. McGinnis, Cause No, 2419; Santa Fe Daily New Mexican, September 22, 1899. The trial of McGinnis is well detailed by Jeff Burton in his “Suddenly in a Secluded and Rugged Place…,” (The English Westerners’ Society, 1972, pp. 46-81), and need not be reiterated here. 7 Territory of New Mexico v. William H. McGinnis, Cause No, 2419. 8 Territory of New Mexico v. William H. McGinnis, Appellant, No. 873. 9 Territory of New Mexico, Penitentiary Record Book of Convicts, November 2, 1884–April 4, 1904, p. 90, New Mexico State Records Center and Archives, Santa Fe. 10 Matt Warner, as told to Murray E. King, The Last of the Bandit Riders (New York: Bonanza Books, 1940), pp. 325-28. 11 Kerry Ross Boren and Lisa Lee Boren, The Gold of Carre-Shinob, (Springville, UT: Bonneville Books, 1998), p. 103. 12 Miguel Otero, My Nine Years as Governor (Albuquerque: University of New Mexico Press, 1940), p. 102. 13 Territory of New Mexico, Penitentiary Record Books of Convicts, November 2, 1884–April 4, 1904; April 5, 1904- February 13, 1915. 14 Miguel Otero, My Nine Years as Governor, p. 102. 15 Bursum’s superintendency overlapped McGinnis’s entire stay at the penitentiary. He took over the New Mexico Territorial Penitentiary on May 1, 1899–it had 160 inmates. When he resigned on April 12, 1906, it had 260-270 inmates (Holm Bursum, “Bursum Papers, 1873-1936.” MSS 92 BC, Box 1, The Center for Southwestern Research, University of New Mexico, Albuquerque. The cousin of hotel magnate Conrad Hilton and the former sheriff of Socorro County, “Olaf” Bursum (1867-1953) was later elected to the United States Senate to replace Albert Fall upon the latter’s appointment to Harding’s cabinet. 16 Miguel Otero, My Nine Years as Governor, p. 131. 17 Santa Fe New Mexican, April 17, 1901. 18 Holm Bursum to Charles Kelly, quoted in Charles Kelly, The Outlaw Trail (New York: The Devin-Adair Company, 1959), pp. 258-59. 19 Ibid. 20 Miguel Otero, My Nine Years as Governor, pp. 102 and 131; Penitentiary Record Book of Convicts, November 2, 1884–April 4, 1904. 21 Territory of New Mexico, New Mexico Territorial Penitentiary, Admission Records (Record of Convicts), New Mexico State Records Center and Archives, Santa Fe. 22 H. A. Hoover, Tales from the Bloated Goat; Early Days in Mogollon, (El Paso: Texas Western Press, 1958 [reprinted Silver City, New Mexico: High Lonesome Books, 1995])p. 52. 23 Interview, Lewis Jones and John Allred, ca. 1955, Louis Bradley Blachly, “Transcripts of Oral Interviews.” MSS 123 BC, Pioneers Foundation Oral History Collection, The Center for Southwest Research, University of New Mexico, Albuquerque, hereafter BT. Lewis and Walter Jones had moved their general store from Reserve in 1904 (Interview, Lewis Jones, June 31, 1952, BT). 24 Interview, Ben Avery, no date, BT. 25 H. A. Hoover, Tales from the Bloated Goat; Early Days in Mogollon, p. 52. 26 Ibid., p. 53. 27 Miguel Antonio Otero, My Nine Years as Governor: 1897-1906, pp. 114-15.
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28 William French, Some Recollections of a Western Ranchman, (New York: Argosy- Antiquarian Ltd., 1965), pp. 261, 276-278. 29 H.A. Hoover, Tales from the Bloated Goat, p. 53. 30 French, Some Recollections of a Western Ranchman, pp. 262 and 283; H. A. Hoover, “The Gentle Train Robber,” p. 45.
31 Interview, Jones and Allred. BT. Lay periodically wrote Jones and Elton Cunningham from Wyoming (interview, Elton Cunningham, January 2, 1955, BT). 32 Speech delivered by Harvey Murdock (grandson of Elzy Lay) at the Ninth Annual Convention of the Western Outlaw-Lawman History Association, Buffalo, Wyoming, July 22, 1999. 33 Dempsey was jailed in Rawlins on February 1, 1908, but a jury acquitted him on March 12. Unreformed, Dempsey continued his larcenous ways (Carbon County, WY, District Court, District Number Three, State of Wyoming v. Jack Dempsey, case no. 645, WSA; Rawlins Republican, March 14, 1908; Carbon County Journal, March 14, 1908).