John "Jack" McCall Trials: 1876

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John "Jack" McCall Trials: 1876

Defendant: John ("Jack") McCall
Crime Charged: Murder
Chief Defense Lawyers: First Trial: "Judge" Miller; Second Trial: Oliver Shannon and William Henry Harrison Beadle
Chief Prosecutors: First Trial:"Colonel" George May; Second Trial: William Pound
Judges: First Trial:William L. Kuykendall; Second Trial: Peter C. Shannon
Place: First Trial:Deadwood, Dakota Territory (now South Dakota); Second Trial: Yankton, Dakota Territory
Dates of Trials: First Trial: August 3, 1876; Second Trial:December 4-6, 1876
Verdict: First Trial: Not guilty; Second Trial: Guilty
Sentence: Death by hanging

SIGNIFICANCE: Lawman, army scout, and gambler, Wild Bill Hickok's accuracy and speed with handguns, as well as his long hair and striking good looks, made him a national figure and the subject of several dime novels while he was still in his early 30s. But death found Hickok on August 2, 1876, when he was shot in the back of the head in Deadwood, Dakota Territory (now South Dakota) by John "Jack" McCall.

Wild Bill Hickok brought law and order to notoriously lawless communities. Unassuming, never boastful, he was frequently challenged by gunfighters who felt they could take him. Many died when they tested Hickok's skill. It was a trying life, and Hickok sought to settle down.

A Western Boomtown

In 1876, Hickok went to Deadwood in the Dakota Territory to find financial success and a way to a more quiet life. He had married earlier that year and needed a better way to earn a living than by playing cards as he had done since leaving Buffalo Bill's Wild West Show in 1874. So, when gold was discovered in the Black Hills of Dakota, Hickok went off to strike it rich so he could return home and retire or, at least, enter a less dangerous profession.

Like thousands of others, Hickok headed towards Deadwood, a one-street mining town whose population sprang from nothing to over 15,000 in less than a year. But Deadwood was also an outlaw hangout where, like many places before, Hickok's fame preceded him. As a result, many of the community's seedier types were afraid that Hickok was really there to establish law and order.

Hickok did not find gold, so he returned to gambling. At about noon one day, he entered Carl Mann's No. 10 Saloon and joined a card game. Three hours later, a small, shifty 25-year-old named "Jack" McCall entered the room. While Hickok studied his hand, McCall quickly moved down the bar until he was a few feet behind Hickok's chair. Then, pulling out a gun, McCall shouted, "Damn you, take that!" and fired. Hickok died instantly. He was only 39.

The First Trial

Preparations began immediately for McCall's trial. Deadwood did not have any formal government, so that evening the local businessmen elected three lawyers (all of whom had left their practices elsewhere to find gold) to serve as judge, prosecuting attorney, and defense counsel. A sheriff and clerk were also appointed, and procedures were established for the selection of the jury. The trial was set for nine o'clock the next morning at McDaniel's Theater. To prevent a lynching, 25 men guarded McCall during the night and the judge insisted that the sheriff and clerk, as well as the lawyers and all the leading businessmen of the community, be "present with their revolvers when the court convened."

McCall pleaded "not guilty" and, after the jury was picked, the prosecution called four witnesses who either saw the actual shooting or were in the saloon when the shot was fired. In turn, the defense called a number of witnesses who all swore to McCall's good character. Finally, McCall himself testified:

Well, men, I have but few words to say. Wild Bill killed my brother, and I killed him. Wild Bill threatened to kill me if I crossed his path. I am not sorry for what I have done. I would do the same thing over again.

That was enough for the jury to acquit McCall. The entire proceeding took only 12 hours.

The verdict was not well received by many people in Deadwood. There were rumors of bribes and the prosecuting attorney, Colonel George May, vowed to seek justice elsewhere. McCall stayed in town for a while, but left when one of Hickok's close friends, California Joe, arrived. It was also noted by many that while McCall had only $43 on the day he was tried, he was seen soon thereafter with a large amount of cash and a gold watch and chain.

A Federal Trial for McCall

McCall went to Wyoming, first to Cheyenne and then to Laramie, before his arrest on August 29 by a deputy U.S. marshal who was accompanied by May. Although McCall had already been tried, the proceeding in Deadwood was not legal because the town and its inhabitants were inside an Indian reservation established by the federal government and, thus, had no right to be there. Therefore, McCall's acquittal was not valid and would not prevent another court from retrying him for Hickok's murder.

McCall was first held in Laramie to attend a preliminary hearing and to await a formal request to have him extradited to Yankton (in present-day South Dakota) for trial. While in the Laramie jail, McCall claimed in a newspaper interview that not only had Hickok killed his brother, but also that, the day before the shooting in Deadwood, Hickok had cheated McCall in a poker game and laughed at him when they quarreled.

Once in Yankton, McCall was formally indicted for murder on October 18, 1876, and, again, he pleaded "not guilty." To give the marshal's deputies time to find McCall's defense witnesses, the trial was adjourned for six weeks.

On November 9, McCall and his cellmate attempted to escape. They overpowered one guard, but were foiled when a U.S. marshal and an assistant arrived on the scene. McCall then offered to turn state's evidence and alleged that he had been hired by John Varnes to murder Hickok. According to McCall, there was once a "difficulty" between Varnes and Hickok in Denver and the resulting ill feelings were heightened when Hickok, a short time before his death, stepped in with his gun to end an argument between Varnes and another man. A posse immediately headed to Deadwood to find Varnes, but he was gone.

The marshal's office was also unable to find any of McCall's defense witnesses. When the court reconvened on December 1, McCall's new lawyers asked for a continuance until April so these witnesses could be found, but the motion was denied. The actual trial began on December 4.

Again, eyewitnesses were called to the stand. One, the owner of the saloon, confirmed that McCall had lost a poker game to Hickok. However, once McCall realized that he did not have the funds to cover his losses, Hickok offered him money (which McCall refused) to buy supper. Another person claimed to have seen McCall sneak up behind Hickok in the No. 10 Saloon a day or two before the shooting and pull his gun two-thirds out of the holster before a companion led him away. (No explanation was given as to why Hickok was not warned at the rime or later told about this incident.)

No witnesses were called on McCall's behalf, and McCall did not testify. However, when cross-examining the prosecution's witnesses, McCall's lawyers tried to insinuate that McCall was drunk and, thus, not responsible for his actions. After all the witnesses were called, some technical motions were made challenging the propriety of the copy of the indictment that was handed to McCall's lawyers at the beginning of the trial. Other motions were also made arguing that a retrial should be granted because the court improperly applied federal law, instead of territorial law, during the trial. (Since the murder occurred on an Indian reservation, Hickok's murder was, under the laws of the time, a federal crime.) These motions were all denied.

The Jury Quickly Reaches a Verdict

On December 6, the jurors retired at about seven in the evening to consider their decision. They returned a little over three hours later with the verdict of "guilty." On January 3, 1877, before a packed courtroom, McCall was sentenced to death.

Even before sentence was pronounced, McCall's lawyers appealed the case to the Supreme Court of the Dakota Territory, but it was denied on January 20, 1877. A petition was then sent to President Ulysses S. Grant for a pardon or a commutation of McCall's sentence to life imprisonment. This, too, was unsuccessful and McCall was hanged on the morning of March 1, 1877.

A few days before McCall's execution, a letter was received by the U.S. marshal in Yankton from Mary McCall of Louisville, Kentucky, inquiring if the condemned prisoner were her brother.

I saw in the morning papers a piece about the sentence of the murderer of Wild Bill, Jack McCall. There was a young man of the name John McCall left here about six years ago, who has not been heard from for the last three years. He has a father, mother, and three sisters living here in Louisville, who are very uneasy about him since they heard about the murder of Wild Bill. If you can send us any information about him, we would be very thankful to you.

When shown the letter, McCall confirmed that it was from his sister. The letter contained no mention of any brother. Furthermore, a week before his death, McCall had promised the newspaper in Yankton to write about his side of the events leading up to the murder. The article was to be published after McCall's hanging, but the night before the execution, McCall destroyed what he had written. Whatever the real reason was that he shot Hickok, McCall took it to his grave.

Mark Thorburn

Suggestions for Further Reading

Rosa, Joseph G. Alias Jack McCall. Kansas City, Mo.: Kansas City Posse of the Westerners, 1967.

. "Alias Jack McCall: A Pardon or Death?" The Kansas City WVesterners' Trial Guide 12, no. 2 (June 1967).

. They Called Him Wild Bill: The Life and Adventures of James Butler Hickok. 2nd ed., rev. and enl. Norman, Okla.: University of Oklahoma Press, 1974.

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John "Jack" McCall Trials: 1876

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