The murder case lives on in Corey Recko’s book.
Attorney Albert J. Fountain and his 8-year-old son, Henry, disappeared somewhere in the White Sands of southeastern New Mexico Territory in February 1896. Ambush and murder were suspected, and much later there would be a murder trial, though neither body was ever found and nobody would ever be convicted of the crime. Fountain had just obtained indictments against several suspected cattle rustlers, and he knew that he had many enemies, including powerful lawyer-politician Albert B. Fall and cattleman Oliver Lee. In fact his wife, Mariana, had insisted he take young Henry along on the trip (from their home in Las Cruces to the court in Lincoln and back), because she figured the presence of the child would deter anyone from attacking her husband.
Once the Fountains were reported missing, posses quickly formed and scoured their route. A pool of blood was found near the abandoned wagon, as well as footprints from only one of Henry’s small boots and the tracks of horses and men. Called in to help in the investigation were Pat Garrett, the man who killed Billy the Kid, and Pinkerton operative John Fraser (see “Gunfighters and Lawmen” in this issue). Lee and associate Jim Gililland stood trial for the murder of Henry in Hillsboro, New Mexico Territory, beginning in May 1899. But by the end of the summer, all charges had been dropped against them and the other primary suspect, Bill McNew.
The case was emblematic of New Mexico’s late-19th-century law and order—or lack thereof—and remains one of the best-known unsolved mysteries in the Southwest. In his 2007 book Murder on the White Sands: The Disappearance of Albert and Henry Fountain (University of North Texas Press, Denton, $24.95), Corey Recko points out that some of New Mexico Territory’s most famous citizens were involved in the investigation and trial. Recko, who spent six years digging up information about the case, was born and raised in Cleveland, Ohio, and is a member of several outlaw-lawman history groups. For a work-in-progress he is researching the lawlessness in New Mexico Territory under Governor Samuel Axtell (1875-78). He recently talked to Wild West about Murder on the White Sands.
What got you interested in the disappearance of the Fountains?
I had read about the Fountain case in Leon Metz’s biography of Pat Garrett and wanted to read more about it. Unfortunately, what I found was that the only books that covered the case were all books about something else, and therefore could only devote a few chapters to the Fountain case. What I wrote was the book that I had wanted to read.
What pieces of evidence became the most important in the Fountain case?
The key pieces of evidence are the horse and boot tracks found at the murder scene and at the murderers’ campsite— where those tracks led and whose tracks they matched. Without those tracks there would have been no indictments.
What word best describes the relationship between Fountain and Albert Fall?
Hatred. The two men, Fall, a rising leader of the Democrats, and Fountain, an established Republican leader, could not stand each other and made no secret of it.
Why was Pat Garrett so quickly brought into the investigation?
Because the current sheriff [Guadalupe Ascarate] was doing little, if anything, to solve the case. His right to the office of sheriff was being contested due to charges of fraud in the previous election, and his deputies were prime suspects. Clearly, no progress would be made in the case without help, and the governor, William Thornton, to his credit, acted quickly.
How do you characterize the relationship between Fall and Pat Garrett?
Fall did not like the fact Garrett was brought in, because the implication was that the sheriff couldn’t do his job, and more importantly, Garrett might link Fall’s close friend Oliver Lee to the disappearance. But Fall never took it out on Garrett, and the two had a civil relationship.
Did Pat Garrett unwisely dismiss any potential evidence?
Yes, the statement of Eva Taylor. She claimed to have seen three men on the road the night of the Fountains’ disappearance, identified two of the men as the suspects and was unsure of the identity of the third man. Garrett did not believe her, but she was the only eyewitness to put the suspects on the road that night and give a plausible statement.
Did Garrett make other mistakes?
Garrett’s biggest mistake was his resistance to work with Pinkerton operative John C. Fraser. Garrett thought he knew who the guilty parties were, but there was never a conviction. Maybe if he had been more open to Fraser’s help, they could have gathered more evidence. In some cases it seemed Garrett didn’t want outside help, and in others it seemed Garrett didn’t realize the importance of sharing every piece of evidence he had. When Garrett did open up, it was usually helpful and gave Fraser a path to pursue.
How about the Pinkertons?
Fraser gave all of his information to Garrett. Unfortunately, the Pinkertons didn’t have enough time to see what they could have done. Whereas Garrett was brought in as a man who could make the necessary arrests, the Pinkertons were the only professional investigators on the case. But the money ran out, and as a result the Pinkertons’ time on the case was limited.
Still, some good things were done.
The most important part of the investigation was done by the men who went out to search for the Fountains when word of their disappearance was first reported. W.H.H. Llewellyn, Thomas Branigan and Eugene Van Patton led this group. Garrett’s strengths were his knowledge of the type of people he was dealing with and his previous experience dealing with lawlessness and corruption in New Mexico. Fraser was a professional investigator with knowledge of what evidence was important and an ability to get detailed statements.
How did the two-year delay in going to trial affect the outcome?
Evidence that had been there two years earlier was missing, some key witnesses died and other witnesses’ memories were fuzzy by the time they took the stand. In a trial built on circumstantial evidence, this was detrimental to the case.
Could the trial have been held earlier?
A trial could have been held earlier. Garrett stated that he feared Albert Fall had too much control of the courts at the time to bring charges, but I believe that by delaying seeking indictments, Garrett also hoped to give himself more time to find the Fountain bodies. In the end the bodies were never found, and all that was accomplished was a weakening of the case. I can’t say for sure that the verdict would have been different, but the prosecution would have been able to present a much stronger case two years earlier.
Did the fact the trial was held in Hillsboro have an effect on the proceedings?
A lot more Lee and Gililland supporters made the trip to Hillsboro than those who thought they were guilty. As a result, the courtroom crowd was very pro-defense and was able to intimidate the judge and affect the proceedings more than once.
Why weren’t the bodies found?
Pat Garrett seems to have spent most of his time searching for the bodies, often in the company of Roswell Sheriff Charles C. Perry. Unfortunately, we don’t have Garrett’s notes telling us where and how often he searched. It’s possible the bodies were burned in a steam pump, but under the circumstances it would have been impossible to cremate the remains completely. The bones had to be buried somewhere.
Did this disappearance affect New Mexico Territory politics?
New Mexico politics were already a mess. Corruption and murder was commonplace. The Fountain murder was a result of New Mexico politics. Since before the 1870s, and the rise of the Santa Fe Ring 20 years before Fountain’s murder, New Mexico had been synonymous with corruption and murder. In Mesilla 20 years before, political rallies had broken out in gunfire between Democrats and Republicans. There were already other murders that were politically motivated. New Mexico Territory really was the Wild West.
Did the Fountain case affect New Mexico’s quest for statehood?
The Fountain murders were national news and a prime example of the lawlessness that defined New Mexico Territory. It confirmed what the rest of the country already thought about New Mexico and made the case for statehood more difficult. It wasn’t until 1912 that New Mexico finally became a state.
Originally published in the April 2008 issue of Wild West. To subscribe, click here.