Butch Gets Busted

This month is the 130^th anniversary of when Butch Cassidy was sent to prison in Wyoming for horse theft. Why that matters now is it gives me the opportunity to offer the following excerpt from Bandit Heaven: The Hole-in-the-Wall Gangs and the Final Chapter of the Wild West, by yours truly, to be published October 22 by St. Martin’s Press. There is the screen version of the adventures of Cassidy and the Sundance Kid . . . then there is the real story.

The protagonist in the search for and arrest of Butch Cassidy was a rancher named John Chapman. Originally from Illinois, he had spent time in Oregon then in 1878 he established a ranch of at least 1300 acres in northwest Wyoming. His operation was very successful, which included breeding especially sturdy stallions. Owning an abundance of good stock of horses and cattle, Chapman, inevitably, was the target of rustlers. To keep being successful, he was at the forefront of ranchers’ efforts to deter such thieving.

From time to time, Chapman had encountered Butch Cassidy. The rancher liked the young man who seemed more engaging and literate than the average cowpuncher. But as more of his stock disappeared and the more questions Chapman asked, the more Butch was suspected, along with a friend of his, Al Hainer.

Next to nothing is known about Hainer other than he was probably also a young Utah Mormon turned cowboy and part-time rustler. He and Butch built a two-room cabin on property the latter purchased, probably with money gained from the Telluride bank robbery. The duo aimed to raise horses, “borrowing” from neighbors to get the operation going.

Over time, Chapman, sometimes with Wyoming Stock Growers Association detectives riding along, set off after Butch and Hainer and stolen stock but he could never catch them. Butch had an uncanny instinct of knowing when he was being followed and where to go to not be found.

But then his instincts failed him – or even his reservoir of good luck had a bottom to it. Eschewing the harsher environment of their own small ranch, Butch and Hainer had wintered at a small ranch with a sawmill at Stump’s Creek in the hills above Auburn, Wyoming. When the weather allowed for it, an ad hoc posse headed by Chapman traveled there to follow up on rumors of the rustler duo’s whereabouts. Sure enough, when they made an early morning visit to Stump’s Creek, there was Hainer standing outside sipping coffee.

A moonlighting member of the posse was Robert Calverly, a deputy sheriff from Uinta County. With pistol in hand, he arrested Hainer, who revealed that his accomplice was still asleep. Hainer was tied to a tree for safekeeping and the men approached the cabin. Butch was awake by then and as Calverly came in the front door, he was slipping out the back one.

But not fast enough. Again displaying his six-shooter, the deputy sheriff said, “I have a warrant for your arrest. Come with me.”

Butch replied, “I’ll be damned if I do.”

He eventually did because Calverly was able to lunge and grab him and soon a second member of the posse, Al Cook, joined the scrum. During it, Calverly’s gun fired and Butch was shot in the head. Not seriously — the bullet grazed his forehead, but that was enough to knock him down and had him seeing stars that were not on the lawmen’s coats. When John Chapman entered the cabin, it was not to gloat over finally capturing his quarry but to tend to Butch’s bleeding head.

Butch and Hainer endured the hospitality of the Uinta County jail in Evanston, 130 miles away, for six weeks, sharing a cell. They could not make bail – in fact, they could not yet see the inside of a courtroom to have their bail determined because the bandits did not have money to pay for an attorney. Finally, they were transferred 200 miles to the north and east to the jail in Lander, in Fremont County. Here the justice system was a tad less rustic and Butch and Hainer were given lawyers.

Butch’s representative was Douglas Arnold Preston, a rather reputable lawyer. Why would be bother with Butch? It was another example of the bandit’s luck and ability to make friends. Sometime in the recent past, Butch had entered a saloon in Rock Springs where the beleaguered barrister was about to receive a beating for some perceived sleight. Butch’s intervention saved Preston’s facial features from being rearranged.

Preston had been born and raised in Illinois and passed the bar there. In 1887, he relocated to Wyoming. His practice expanded to include offices in Cheyenne, Rawlins, Rock Springs, and Lander. He sank roots – or piled up IOUs – fast because only two years later he was one of the Democratic delegates to the Wyoming constitutional convention. After statehood, Preston would serve in the Wyoming House of Representatives, as the state attorney general, then in the State Senate. With this resume, Preston could afford to return a favor to a low-level horse thief.

Things were looking brighter for Butch. And for Al Hainer too. It was promising that his attorney also had three names: Coker Fifield Rathbone. He was just 31 but was gaining a good reputation, helped along by The Fremont County Gazette, of which he was publisher. By this time the prisoners could use all the legal help they could get because another prominent rancher, Otto Franc, had teamed up with John Chapman to accuse Butch and Hainer of horse stealing.

The trial got underway on June 20, 1893, with Judge Jesse Knight presiding. In what probably was not a good omen, one of the prosecutors was Willis Van Devanter, who had been a member of the team that had secured the conviction of Dan Parker, Butch’s brother.

With Judge Knight nodding along, the prosecution presented a straightforward case with witnesses asserting that Cassidy and Hainer were chronic cattle rustlers and should be on trial a dozen times over. The attorneys explained that in that part of wide-open Wyoming horses tended to wander if not properly attended to and the ones that had found their way to Butch and Hainer’s camp were simply being cared for until winter was fully gone and they could be returned.

In Wyoming at that time, this was often a winning argument. And it was again: The jury was sequestered for two hours, then returned a verdict of not guilty.

There was little time for celebration because it was revealed that Otto Franc had filed a second horse-stealing complaint. Judge Knight scheduled the trial on it for the fall. It would be postponed and then once again to Spring 1894. That June, a Lander deputy sheriff found Butch working at a ranch in Meeteetse and, after seizing his guns, escorted him the 130 miles to Lander. Hainer, who had wintered only 50 miles away, met him there. The two defendants felt confident of another acquittal. After all, the horse in question was worth only $50, so how serious could prosecutors be? And the lead prosecutor was William Lee Simpson, who at 26 was still wet behind the ears and was almost a stepbrother to Butch, being the eldest son of John and Margaret Simpson.

Billy Simpson, however, saw that his future did not lie with his rural family and their rustler friends but with the well-heeled cattle barons. Though a harsh outlook, he foresaw that the shelf life of bandits like Butch Cassidy, however colorful a character he was, would soon expire. What better way to demonstrate this than to secure a quick and convincing conviction?

And this he did, with the help of 11 witnesses and a persuasive summation. Speaking for the defense, Douglas Arnold Preston repeated the story of wandering horses not knowing their home address. He rested his case on July 2. With alacrity, the jury reached a verdict by the end of the next day but Judge Knight ordered it sealed until Monday and the conclusion of the July 4 weekend. This decision almost cost the chief prosecutor his life.

According to author Charles Kelly, who was told by Billy Simpson over 40 years later, Al Hainer, not a smart man to begin with, began celebrating too early, got drunk, and decided to attack Simpson. Soon after sunup on Sunday, the young attorney was just riding out of a local livery stable when Hainer and two accomplices tried to drag him off his horse and give him a good beating. Simpson resisted with the help of the frightened horse, and when he managed to pull out his pistol, the three assailants ran away. The attack was witnessed by Simpson’s fiancé, whose screams across the street attracted help. (Among the children the couple would have was Milward Simpson, who would become governor of Wyoming, and a grandson, Alan Simpson, would represent the state in the U.S. Senate for many years.)

Judge Knight revoked Hainer’s bail, and Butch’s too because a rumor circulated that the latter’s good friend Matt Warner had collected a gang of outlaws who were going to storm into Lander and bring Butch out. People of the town gathered that evening with rifles and pistols and shotguns. When satisfied that there would not be a raid of desperadoes, a few of the ad hoc militia gathered to guard the courthouse.

Back in court on Monday morning, Judge Knight read from a sheet of paper: He informed all those in the crowded room that the jury had found Hainer not guilty . . . but the 12 men had found Cassidy guilty. “And the jury recommend the said Cassidy to the mercy of the court.”

Mercy was not forthcoming. The convicted Cassidy could have received as much as 10 years behind bars for horse-stealing. True, the nicked nag was worth only $50, so Judge Knight could have just imposed a fine. However, he decreed that Butch, stunned by the sudden turn of events, would spend the next two years incarcerated. Immediately, Preston requested a new trial, but the implacable judge simply shook his head.

Cassidy was taken away. His new home, the Wyoming Territorial Prison, had opened 1872 with enough space for about four dozen prisoners. The inmates, however, found themselves with more space than anticipated after nearly a quarter of the prisoners had escaped within the first two years of the prison’s existence. Eventually, the escapees were replaced with new prisoners. Still, when federal officials went to inspect the prison in the 1880s, the population had dwindled to less than a dozen inmates. Instead of closing the prison, the feds expanded the structure with a second cell block capable of housing another 150 men. A central kitchen, dining hall, and other improvements were also added. There were worse places to spend two years.

But a disoriented Butch had not expected to spend even two minutes there. To him, here was yet another miscarriage of justice, and by far the worst one to date. It was sure a sad Sunday for the 28-year-old Cassidy on July 15, 1894, when he arrived to begin his sentence. Even though he did not serve the full two years, it was probably the longest he had stayed in any one place since leaving Circleville, Utah.

And when he exited the prison, it was not to start down a new path in life. Butch Cassidy wanted to form a gang.

Originally published on Tom Clavin’s The Overlook.