Who Killed Col. Fountain and his young son? A New Mexico historical mystery

Colonel Albert Jennings Fountain – Soldier, lawyer, and politician, the mystery surrounding Albert Jennings Fountain’s disappearance in the deserts of southern New Mexico has puzzled lawmen and historians for more than a century.

Born in Staten Island, New York on October 23, 1838, to Solomon Jennings, a sea captain, and Catherine de la Fontaine Jennings, Albert grew up to go to Columbia College before traveling all over the world as a tutor. He then settled in California, where he worked at a newspaper before studying law in San Francisco.

Though the reasons are unknown, it was at this time, that he began to go by the name of “Albert Jennings Fountain,” an Anglicized version of his mother’s family name. In August 1861 he enlisted in the Union Army and was commissioned as an officer in California Column. He participated in the Union conquest of the Confederate Territory of Arizona and fought at the Battle of Apache Pass.

While still serving in the army, he married Mariana Perez in October 1862 and the two would eventually have nine children. He obtained the rank of captain by the time he was discharged at the end of the Civil War. He and his family then settled in El Paso, Texas, where he went to work for the United States Property Commission, which investigated and disposed of former Confederate property. Later he worked as a Customs Collector, was appointed an election judge, and the Assessor and Collector of Internal Revenue for the Western District of Texas.

With this background, it is not surprising that he aspired to politics and in 1869, won a seat in the Texas Senate. Fountain’s radical Republican views angered many Texas Democrats. During the El Paso Salt War, he got into a shootout with a man named B. Frank Williams on December 7, 1870, was wounded three times, and killed Williams.

In 1875, Fountain moved his family to his wife’s home of Mesilla, New Mexico, where Fountain practiced law. Southern New Mexico, at that time, was still subject to frequent Indian raids and in 1878, he became a captain in the first company of militia in southeast New Mexico, fighting in the campaigns against Chief Victorio and Geronimo. Continuing to serve in the militia, Fountain would reach the rank of colonel, a title that he was called for the rest of his life.
At the end of the 19th century, New Mexico was still a Territory and a wild one at that. Governor Sheldon appointed Fountain to head a volunteer taskforce against gang activity in Southern New Mexico. He was good at his job, taking down the Kinney Gang, a group operating out of Hillsboro, and the Farmington gang. He also served as a US District Attorney, targeting people who committed land fraud.

In 1881, he was appointed to defend Billy the Kid who was facing a charge of murder.

In 1885, Fountain moved to Las Cruces and began to prosecute Federal land frauds. In 1888, he was elected to the New Mexico legislature, eventually becoming speaker of the house.Afterwards, he became a special prosecutor for livestock associations and in 1894 convicted 20 men for cattle rustling. His roles as a politician and an attorney; however, acquired him, numerous enemies.

On February 1, 1896, after Fountain had attended a court term in Lincoln County, New Mexico. Fountain went to the Lincoln County Courthouse to file the unlawful cattle branding charges against Oliver Lee, a rancher, and others who were allegedly involved in the rebranding scheme.
While in the court, Fountain received a death threat. The note ordered him to abandon the suit or else he wouldn’t survive the trip back.

In Lincoln, the colonel obtained grand jury indictments against rancher Oliver Lee, his pal Bill McNew and 21 others on charges of cattle rustling. A dangerous man, Lee had at least one killing to his credit; He and McNew also served as Dona Ana County deputy marshals. The deputies were close associates of Judge Albert Fall, a leader of New Mexico’s Democrats—and a bitter enemy of Albert Fountain. The indictments came down; Fountain took much of the evidence with him on the return to Mesilla.

A dangerous man, Lee had at least one killing to his credit; He and McNew also served as Dona Ana County deputy marshals. The deputies were close associates of Judge Albert Fall, a leader of New Mexico’s Democrats—and a bitter enemy of Albert Fountain. The indictments came down; Fountain took much of the evidence with him on the return to Mesilla.

On February 1, 1896, Col. Albert Jennings Fountain and his eight-year-old son Henry were on the last leg of the 150-mile trip from Lincoln, New Mexico, to their home in Mesilla.

They’d been on the rough road for nearly three days, braving cold winter winds and temperatures. They passed the White Sands area as daylight faded; they were about to become the subjects of a great Old West mystery.

What happened to the colonel and his boy? It’s a question that’s been posed for more than 110 years.

The Threat of Death
That somebody had it in for Albert Fountain was no surprise.

He’d always been a “love him or hate him” kind of guy—an attorney, politician and public figure who spoke his mind. He made some powerful enemies, so threats against his life were all too common. His reputation also took a hit when he served as defense counsel at Billy the Kid’s 1881 murder trial.

He knew the trip was dangerous.

On the last day of the grand jury, somebody handed him a note stating, “If you drop this we will be your friends. If you go on with it you will never reach home alive.”

His son Henry had traveled with him, after Albert’s wife insisted nobody would kill the man in front of a little boy. And they certainly wouldn’t hurt the kid.

As father and son made the lonely journey home, the elder Fountain saw a number of riders watching them from a distance. They never got close enough to identify. Others who passed the Fountains on the road saw the men too and urged the colonel to be careful. But he wanted to get home, and he didn’t want to show any fear. The trip continued.

The Investigation

When they failed to arrive home on February 2, folks went looking for them. Searchers found their empty wagon, on the Tularosa-Las Cruces road, about 45 miles from his home. they also discovered some of Henry’s clothing. A large bloodstain covered the ground near where the wagon had left the road. Not far away, shell casings proved at least one man had knelt behind some brush and fired a rifle. Missing were Fountain and his son, as well as Albert’s Winchester rifle.Something bad had taken place—but just what?

A top Pinkerton agent was hired to look into the case. Legendary lawman Pat Garrett was also called in. Tracks from the crime scene (most were convinced Albert and Henry had been murdered) led to Oliver Lee’s ranch. Yet the evidence was circumstantial, and nobody had found any bodies.

Investigators also faced numerous roadblocks thrown up by Lee and his men, and their friend Albert Fall.

A grand jury handed down indictments against Lee, McNew, and Texas troublemaker James Gilliland later that year, but the accused made themselves scarce. Not until three years after the murders, in May 1890, were Lee and Gilliland put on trial. (McNew was never brought to trial.) And they were charged only in the murder of Henry Fountain. The defense lawyer Albert Fall was one of the best, ripping into witnesses and blowing big holes in the prosecution’s case. The jury deliberated just eight minutes before finding the defendants not guilty.

Subsequently, Oliver Lee became a state representative and a senator for New Mexico. Some of his land is now the 640-acre Oliver Lee Memorial State Park, which includes the reconstruction of his Dog Canyon Ranch.

But the question of who murdered Albert and Henry Fountain remains. Were Lee, McNew, and Gilliland actually responsible, or was the not-guilty verdict appropriate?

One alternative theory is that the crime was committed by notorious outlaw Black Jack Ketchum. Sam Ketchum alleged that his brother (Black Jack) had confessed to committing the crimes in retaliation for Fountain prosecuting his cohorts. By that point, Black Jack had already received the death penalty so it’s hard to know if there was any truth to the claim.

Years Later

In 1937, an elderly, and dying, Gilliland spills his guts about the case, admitting that he, Lee and McNew had killed the Fountains—and he showed one man the site where the two were buried. Yet when authorities dug through the area, they found no remains. For their parts, Lee and McNew (and their descendants) always denied any involvement in the murders—so did Albert Fall, who some suspected of ordering the hits.

Nobody was ever tried for the murder of Albert Jennings Fountain, or Henry.

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