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298 Twenty months and a few days spanned Tom Ketchum’s arrest and his dispatch into the hereafter.The interval allowed him ample time for reflection , but he never yielded to repentance. He regretted nothing, except for being caught and failing to kill Harrington or Kirchgrabber. He felt sour towards his fellow train robbers Bronco Bill and Elzy Lay because they were merely serving out prison terms—yet he would declare that he would rather be hanged than die of old age in a cell.1 Now and then, news would come through of his former associates; first, the arrest of Bud Upshaw, then the surrender and disappearance of Dave Atkins, and finally, near the end of the time left to him, the deaths of Will Carver and Red Weaver. In Tom Green County, about the first item on the criminal calendar for 1901 was a motion of the district attorney to dismiss a charge against Jose Ma Perez and Tom Ketchum.2 No prior reference to this case has been found, nor any clue as to its nature, but its removal from the docket of a Texas court could have done nothing to lighten Ketchum’s predicament in New Mexico. As his future shortened, Tom affirmed his belief that “the gang” would rescue him, and many of the officers feared that he might have genuine cause for optimism.3 Their worries, although understandable, were wholly irrational; as far as is known, the dwindling and scattered remnants of the outlaw freemasonry never gave a thought to helping Ketchum escape. He had quarreled with his few intimates—Carver, his brother Sam, and Atkins. Other criminals, who would not have conjoined their fortunes with his when he was at large with an impressive record of criminal campaigning in his warbag, were not going to spare a single moment’s concern for him now that he was discredited, disabled, under heavy guard, and doomed for the gallows. In appealing to the Supreme Court of the territory, Ketchum’s attorneys again invoked the eighth amendment to the Constitution of the United States, contending that the death penalty was a“cruel and unusual” punishment for the offense charged. Bunker and Guyer submitted this argument on the morning of January 25, 1901, before Justices Crumpacker, McFie, McMillan, and Parker.4 It had not swayed Chief Justice Mills, the trial judge, and it did not impress the Supreme Court. The plea was + 21 ∂ OFF WITH HIS HEAD Off With His Head 299 summarily rejected, and official policy coldly restated, in the opinion delivered by Justice Parker a month later. If Parker’s reaction to the acquittal of the alleged Steins Pass robbers has been correctly reported, it showed that he was hardly a fountain of objectivity. His response to the plea of Ketchum’s attorneys was reasoned but inexorable . He cited the judgment in the case of William Kemmler, the first man to die in the electric chair, discussed three rulings of the Appeal Court of the Commonwealth of Massachusetts, and went on to quote the comments of the judge who had handed down the opinion in the cause of the State of Missouri vs. Williams: The interdict of the Constitution [is] against the infliction of cruel and unusual punishments as amount to torture, or such as would shock the mind of every man possessed of common feeling, such for instance as drawing or quartering the culprit, burning him at the stake, cutting off his nose, ears or limbs, starving him to death, or such as was inflicted by an act of Parliament as late as the 22 Henry VIII, authorizing one Rouse to be thrown into boiling water and boiled to death for the offense of poisoning the family of the Bishop of Rochester. Parker cited a number of other cases before stating his views on the act of February 23, 1887: It is hardly necessary to recall the incidents attending the ordinary train robbery, which are a matter of common history, to assure everyone that the punishment prescribed by this statute is a most salutary provision and eminently suited to the offense which it is designed to meet. Trains are robbed by armed bands of desperate men, determined upon the accomplishment of their purpose, and nothing will prevent the consummation of their design, not even the necessity to take human life . . . If the express messenger or train crew resist their attack upon the cars, they promptly kill them. In this and many other ways they...

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