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The Capture of New Mexico’s Rustler King

By Paul Cool
3/3/2017 • Wild West Magazine

 ‘The days of the rustler are ended,’ said John Kinney, whose failure to pay import duties played a hand in his downfall.

Prohibition-era crime boss Al Capone could have learned a valuable lesson from 19th- century boss rustler John Kinney: Be sure to pay the taxman. Capone was famously convicted in 1931 not for illegal bootlegging or murder but for failure to file his tax returns. Riding as high in the American Southwest as Capone would in Chicago a half-century later, Kinney was on the verge of escaping justice when federal Treasury agents, investigating his failure to pay import duties on smuggled cattle, alerted New Mexico Territory’s militia to the rustler king’s whereabouts. Instead of the high life he was planning to enjoy, Kinney would spend three years in the slammer.

Kinney was a young man in a hurry. He was but 22 when he first exhibited a taste for mayhem, just 24 when he displayed a talent for violence on a scale surpassing his peers, perhaps only 27 when he turned his organizational skills to his own benefit rather than others. He was but 30 when his misdeeds caught up with him.

John Kinney’s place and date of birth are uncertain, but family tradition, prison records and Kinney’s own statements suggest he was born in Massachusetts sometime in 1853. His widowed mother moved the family to Chicago, and there the teenage Kinney enlisted in the U.S. Army in 1868.

The Army marched Kinney through much of the West during his five-year tour. After his discharge, he chose to make his mark in New Mexico Territory. There he threw in with a bunch of lawless and homicidal desperadoes that included such career criminals as Jessie Evans, Jim McDaniels and Charles Ray (aka “Pony Diehl”) and quickly learned the trade of rustler. Soon—inevitably—they and other criminals like them became infamous members of what historian Frederick Nolan has called the “Chain Gang,” a small army of interlinked bands of rustlers “working” from the Great Plains to California and on both sides of the Mexican border.

Reckless men like these soon found themselves sharing another profession. Repeatedly during the decade after Kinney’s arrival in the American Southwest, corrupt movers and shakers discovered a need for his type. Here the law too often wilted before the power tucked in scabbards and holsters. Southeast New Mexico Territory warehoused scores of young men with testosterone to burn. Hardscrabble farmers, ranchers squatting on watered land, merchants one mistake away from dashed dreams and saddlers with no particular purpose in life provided the muscle that unscrupulous authorities and monopolistic businessmen needed to lock out their would-be replacements.

Between 1877 and 1882 any borderlands county sheriff —from El Paso, Texas, to Lincoln, New Mexico Territory, to Tombstone, Arizona Territory—needing a small army of gunmen to enforce order could hire such men as killers. What set John Kinney apart from his equally lawless friends were his leadership and organizational skills. More than once it was Kinney who got the assignment to commit under-color-of-law mayhem on a scale useful to corrupt politicians up and down the Rio Grande.

His first opportunity came in December 1877 during the El Paso Salt War. Kinney was in Silver City, New Mexico Territory, when El Paso County Sheriff Charles Kerber sent him an urgent telegram asking him to raise volunteers to rescue the Texas Ranger detachment besieged in San Elizario, Texas. Within the day Kinney raised a posse of 25 men and rode east. He picked up more men in Mesilla, New Mexico Territory, including Jessie Evans. Grant County Deputy Sheriff “Dangerous Dan” Tucker was ostensibly in charge of the Silver City men, but the worst of the bunch, the ones who raped and plundered in El Paso, were identified as “Kinney men.” They were a gang with badges, perhaps the first Southwest border area criminals to be sworn in on a large scale to fight a local war. The activities of the Kinney gang in the Rio Grande Valley established a precedent for future wars in places as widespread as Lincoln and Tombstone.

Kinney stayed on in El Paso, dually occupied as a saloonkeeper and Kerber’s deputy sheriff, until he abruptly departed for Lincoln County. The trigger, according to rumor and tradition, was a summons from District Attorney William Rynerson to fight in the Lincoln County War. Kinney and his Rio Grande posse took the side of the Lawrence Murphy–James Dolan “House,” the business monopoly supported by corrupt politicians of the Santa Fe Ring. The Kinney gang’s dramatic gallop into Lincoln on the first day of the climactic five-day battle (July 15– 19, 1878) turned a developing victory by Alexander McSween’s Regulators into a standoff, broken only by the Army’s intervention.

The war petered out following the Lincoln fight. Billy the Kid and many other unemployed hard cases turned to hit-and-run thievery, but Kinney had grander ideas. He and his followers returned to El Paso, where they attempted to hijack the November 1878 elections and secure virtual control of county government. Kinney and ally Charles Kerber, the unpopular incumbent sheriff, expected little opposition from the only other armed force in town. The Texas Rangers charged with keeping the election honest had racked up a sorry record since their surrender to the insurgent Tejano militia in the El Paso Salt War. But Sergeant Marcus Ludwick was in charge that day. He and 10 Rangers backed down Kinney’s men, granting El Paso its first honest election since the end of the Civil War.

Kinney returned to New Mexico Territory. During the next few years he cleared up old criminal charges, briefly pinned on another deputy’s badge to escort the Kid from the jail in Mesilla to the one in Lincoln and may have found time to scout for the Army in the Victorio campaign. But hiring out his services to others was losing its attraction. Kinney’s expansive imagination soon conjured up designs much more lucrative than protecting someone else’s empire.

In March 1879 Kinney opened up a butcher shop in Mesilla, the harbinger of a much larger scheme already germinating in his mind. Under the radar he began constructing the early Southwest’s most organized criminal enterprise. His operations surpassed anything ever witnessed in neighboring Arizona Territory. There rustling was largely the work of the so-called Cowboys, small gangs with ever-changing lineups— bandits acting as independent contractors, hiring themselves out like Caribbean pirates for each raiding voyage.

Kinney operated on a wholly different scale, using scores of rustlers who routed both livestock and profits to just one man— Kinney himself. His operations ranged from Socorro, New Mexico Territory, south to the Mexican state of Chihuahua, and from El Paso west toward Silver City and down into Sonora, Mexico. While other rustlers worked closely with cooperative butchers to quickly eliminate evidence of their crimes, Kinney was savvy and systematic enough to eliminate the middleman whenever he could. His ranch just south of Rincon, New Mexico Territory, locally dubbed “Kinneyville,” included a slaughterhouse and dressing station. This gave Kinney the flexibility to ship either beeves or choice cuts by rail to wherever he could find buyers. With no middleman taking a cut of his profits, Kinney made the most of an operation that reportedly stole thousands of horses and cattle from honest ranchers. Eventually, people began to talk, and the press took notice. The Santa Fe New Mexican took to calling Kinney “King of the Rustlers.”

Threats of violence and violence itself were tools of Kinney’s trade. Like any effective crime boss, he, as author Nolan put it, “played the role of holy terror to the hilt.” Fear of crossing the rustler boss and his private army rendered the various lawmen in his kingdom impotent, though friendship with Kinney, rather than fear, seems to have motivated Grant County Sheriff Harvey Whitehill. The sheriff’s cozy support of the rustler, even after Kinney’s kingdom fell apart, is otherwise unfathomable.

As 1883 opened, reported thefts of livestock skyrocketed. The New Mexican claimed Kinney’s men rustled an estimated 10,000 head in January alone. The number was doubtlessly exaggerated. When later arrested, Kinney henchman Margarito Sierra confessed to knowledge of 17 separate thefts of 171 horses, cattle and oxen over six months. At that rate Kinney’s men would have had to carry out 1,000 thefts in January to meet the New Mexican’s estimate. No matter how dubious the figures, however, other reports indicated Kinney’s wife and brother were banking huge sums for him in El Paso.

Anger and frustration over mounting thefts of livestock convinced Territorial Governor Lionel A. Sheldon it was time to eradicate Kinney’s operation. Short of a presidential finding of insurrection, the U.S. Army was forbidden by the 1878 Posse Comitatus Law from taking out such criminals. Fortunately, Sheldon had another force at hand: New Mexico’s volunteer militia. On February 12, 1883, he ordered the militia’s commander, Major Albert Jennings Fountain, to take the field and treat the rustlers as public enemies.

Throughout his life as a soldier, lawyer, crusading newspaperman and rough-and-tumble politician, 44-year-old Fountain’s accomplishments were many. Sheldon’s orders handed him a fresh opportunity for further glory, this time against an old adversary, John Kinney. Fountain quickly got to work, putting three companies into action in a series of sweeps up and down the Rio Grande Valley and west into Lake Valley. So effective were these measures that by the end of March the militia had broken the back of largescale organized rustling in the territory. And among the first to fall prey to Governor Sheldon’s offensive was Kinney himself.

The rustler king fled west across New Mexico Territory to escape capture, but not even Arizona Territory was a safe haven. On March 7, 1883, the Shakespeare Guards under Captain James F. Black apprehended the fugitive. Kinney and brother Tom were taken completely by surprise on the Gila River, five miles into Arizona Territory, beyond present-day Duncan. Kinney’s wife, Juana, was also present, which perhaps explains why Kinney offered no real resistance when confronted by Captain Black’s force. The circumstances that led Black to Kinney’s camp have never been fully explained. Historian Philip J. Rasch stated, “Sheldon learned that Kinney himself was on the Gila and ordered Black to capture him at any hazard.”

Although Rasch did not identify the source of Sheldon’s information, Sheriff Whitehill’s biographer, Bob Alexander, provides the added detail that “Frank Cartwright, superintendent of the Sierra Grande Co. at Lake Valley, one way or the other learned of John Kinney’s visit and promptly telegraphed Fountain, who at the time had not a precious clue as to the slippery fugitive’s whereabouts.” By the time Black’s Shakespeare Guards reached Silver City, they “began cutting for meaningful sign west of town.” Obviously, then, they knew where to hunt, but how they knew has been until now a mystery.

A newly discovered report to Secretary of the Treasury Charles J. Folger by acting Special Agent William Penn Howland of the U.S. Customs Service describes how federal agents located John Kinney on the Gila and assisted in organizing the columns necessary to surround the rustler and prevent his escape.

Howland’s involvement in the search for Kinney began on Thursday, March 1, in Benson, Arizona Territory, where he and U.S. Customs Collector Abner Tibbets met to investigate the smuggling of cattle from Sonora. They determined that rustlers had brought a smuggled herd across the border, tracing the cattle to Lordsburg, New Mexico Territory, and from there north to the Gila River. Tibbets dispatched a mounted inspector named Wilson, who knew the country well, to find the herd. What Wilson and other unidentified scouts found on the Gila was a party under Kinney reportedly in possession of several hundred animals. Wilson needed reinforcements.

Wilson got word to Howland at Lordsburg. The special agent immediately wired Kinney’s whereabouts to Tibbets, who was already at El Paso. Tibbets lost no time in telegraphing Governor Sheldon before heading for Lordsburg, reaching town on Sunday, March 4. A day was lost as Tibbets, Howland and Deputy U.S. Marshal S.L. Sanders waited for the governor’s men to arrive. At last, on Monday, Captain Black, a saloonkeeper by trade, and 17 other men of the Shakespeare Guards arrived on Sheldon’s orders. That night they started with Sanders for the point on the Gila where Wilson had spotted Kinney.

Meanwhile, Howland and Wilson rode all night across the Burro Mountains to Silver City, arriving there at 4 a.m. on March 6. They hoped to raise a force in town but could not find men they could trust. As Howland reported, “Men ordered out promiscuously would be worse than none as nine-tenths of them would be in league with Kinney and would betray and frustrate any plan.” Silver City’s leading men offered no help. All were said to be in mortal fear of Kinney and his gang. The customs men split up. Wilson rode down the Gila to meet Deputy Sanders and Captain Black. Howland rode to Fort Bayard to plead for the Army’s help. Colonel William Bedford Royal was apologetic, but he could not bring his 4th Cavalry into play without orders from Brig. Gen. Ranald S. MacKenzie, the department commander at Santa Fe.

Sanders and Black had also ridden all night after leaving Lordsburg. As they approached the Gila, the deputy marshal led one party in a long detour into Arizona Territory, passing through the Peloncillo Mountains to Whitlock’s Cienega, then turning north and east, hitting the Gila at a point beyond where Kinney was expected. The other party, led by Captain Black, took a more direct path but split up, with half going down each bank of the river.

On the morning of Wednesday, March 7, Kinney’s party relaxed at Ash Springs, five miles inside Arizona Territory, not far from York’s Ranch, to water the horses and mules. The water hole lay in a hollow with high rocks on either side, too narrow for cattle, so Kinney pushed them downriver to an open pasture. For the unwary traveler the hollow was also a natural ambush site, as the late George York discovered during the Apache outbreak 17 months earlier. Kinney, brother Tom, wife Juana and their companions were just breaking camp at about 8 a.m. when Black’s Shakespeare’s Guards took them by surprise. At almost the same moment Sanders’ enveloping party, weary from their 30-mile march through Arizona Territory, appeared from the west, closing the trap. Kinney surrendered without a struggle. Instead, he tried to talk his way out, but nobody, not even Harvey Whitehill, who some reports placed at the scene, was buying what Kinney had to sell.

The militiamen escorted Kinney’s party, along with three-dozen horses and mules, back to Lordsburg. There the rustler king was thrown unceremoniously into a sidetracked boxcar to await the arrival of A.J. Fountain and transportation to Las Cruces for trial.

Special Agent Howland begged his superiors for an Army escort to Arizona to gather up Kinney’s “great number of smuggled stolen cattle on the Gila and its cañons.” Howland also urged the Treasury secretary to remain on the offensive. With Kinney and his lieutenants captured or killed, continued pressure, according to Nolan, “would so crush the combination of CowBoys and desperadoes that [they] would hardly rally again this summer, and if so, feebly, as the great combination which now extends from the Pecos River in Texas to Arizona would be without leaders for a time at least.”

Kinney faced 17 separate indictments for larceny and buying stolen cattle, handed down by the grand jury of New Mexico’s 3rd Judicial District. Fountain, now the government’s attorney, concentrated on prosecuting the territory’s best case, a single charge of stealing 16 beeves. Fountain did the job in two days, and on April 13, 1883, Kinney’s jury took just eight minutes to convict the surprised crime boss.

Fountain escorted Kinney to prison at Leavenworth, Kan. As the Atchison, Topeka & Santa Fe train carrying the deposed king, eight other prisoners and Fountain’s guards rolled into Kansas City on May 2, an Illustrated Police News reporter was there to greet them. The journalist reported that Kinney “expressed himself freely and did not appear to worry over his fate.” Kinney told the reporter: “The days of the Rustler are ended anyway in New Mexico. All his property have [sic] been swept away, and he might as well be in Leavenworth prison as out of it without money.”

When his conviction was reversed less than three years later, he went home for a retrial that never took place. From this point on, says author Nolan, “Kinney sinned no more.” He may have served in Cuba during the Spanish American War as a civilian scout and quartermaster, although the Army rejected his pension claims. He owned a couple of mines and lived comfortably—perhaps on his ill-gotten savings accounts in El Paso.

By the time John Kinney died of Bright’s disease at age 66 on August 25, 1919, he had thoroughly rewritten his life story. His obituary in the Prescott Journal-Miner proclaimed that he “was known in the Southwest as one of the most daring and courageous in the annals of men who were sacrificing and unflinching to preserve law and order.” In death, if not life, he became “one of the most generous and best loved men ever to grace the early life of the thrilling days of the border.” Not bad for the Southwest’s first crime boss.

 

The Pima County Public Library [www.library.pima.gov] in Tucson named Salt Warriors: Insurgency on the Rio Grande, by Paul Cool [www .paulcoolbooks.com], a Southwest Book of the Year. For further reading: The Lincoln County War: A Documentary History, by Frederick Nolan, and Sheriff Harvey Whitehill: Silver City Stalwart, by Bob Alexander.

Originally published in the April 2014 issue of Wild West. To subscribe, click here.

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