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Doc’s Gun.

Doctor Marshal Benton Taylor’s rifle is of utmost importance as it is often told that the jury had a question about the gun and ultimately it would be the rifle and the testimony about it that would be used to find him guilty however when we look into the testimony about the rifle, its ammunition and the shell casings found at the crime scene some very interesting facts come to light.

Shell CasingsIt is often told that the casings found at the crime scene were rim fire 45×75 or 45×70 John Fox Jr. says in his story that the Red Fox carried a rim fired Winchester 50-70 and in his words there may be a clue to the mystery of the gun. The shell casings found at the massacre site were not rim fire 45 x 75 caliber; in fact no rim fire 45’s have ever been made… When John Vint Bentley and Robert Mullins investigated the site they had stated that they only knew of two guns that matched the shells found, those belonging to Henry Adams and James Potter. Doc Taylor was not mentioned as a suspect… This could be indicative of two things either they did not believe that Doc Taylor would have committed the crime or that they knew Doc’s gun did not match the ammunition found. However the clue is found in the fact that all the stories and the actual statements by the men themselves says that the casings were rim fire and were for a government issued rifle.

Doc Taylor did not have a government issued gun, he owned the Winchester Model 1876, or Centennial Model it was a heavier-framed rifle than both the Models 1866 and 1873, and the first rifle Winchester had made that was chambered for full-powered center fire rifle cartridges suitable for big-game hunting, rather than the handgun-size rim fire and center fire rounds of its predecessors. And it was made for the new Winchester 45×75 center fire ammunition…

1860Henry5The fact that the shell casings found were rim fire and “were for a government issued rifle” meant that they were in fact a variation of the .44 Henry cartridges which were used in the Henry Model 1860 Repeating rifle. The rifle was used in the Civil War, mainly by Union troops but it was also used by Confederate troops when they managed to capture the rifles. After the Civil War, the Henry cartridge was used in the Military and Civilian models of the Winchester 1866 rifles and carbines. The Smith & Wesson No. 3 Revolvers, Colt Model 1860 Army Long Cylinder Conversions and the Colt Model 1871-72 “Open Top” all used the same cartridge and were in production until 1880; The cartridge casings were originally made from copper and later in brass and were still commercially made into the 1930’s. One variation of The .44 Henry cartridges was perfected by the Winchester Repeating Arms Company on October 31, 1871 and the new version first appeared with the Winchester 1873 rifle as the .44-40 center fire ammunition.

DocsGun - 14
Some of the other weapons the ammunition found could have come from

During the trial Robert Mullins testifies to the finding of the shells and that he thought they were 45 caliper, however he then states that he did not know the caliber of Doc’s gun. John Bentley testifies to the shells but not the caliper. Mullins testifies to the location of the homes of both James Potter and Henry Adams and states that Henry’s whereabouts is unknown, but it is thought that he was in hiding. The interesting thing about the testimony of these two men is that they are both asked if they knew Doc Taylor but neither of them mention any problems known between Ira Mullins and Doc Taylor nor are they asked about it. However the testimony about the gun becomes stranger in further testimony by witnesses.

Henry Hall and David Ellison are both brought in as witnesses for the defendant they both testify that the 45 caliber rifle were common guns in Kentucky Henry Hall stated that he personally knew of three but produces two names and then goes on to state that there were hundreds of them in Kentucky and that they were very common guns.

The testimony of J S Wright is very unique because in his testimony he states that he had shot Doc’s gun during the course of the trial and that Doc’s son S N Taylor was in possession of said gun. This produces quite a fuss within the court and S N Taylor is recalled to the stand.

S N Taylor is the son of Doc Taylor, and he testifies that the gun had been in the possession of his mother for most of the time that Doc had been in jail and further testifies that for a short time the guard at the jail had used the gun during his duty. It is of great interest to note that it is at this time that the gun is entered into evidence.

Lonesome Pine BookIt is our belief that John Fox Jr. gave us a clue to the questions around Doc’s gun and the ammunition casings found at the crime scene, in his book Mr Fox says that the Red Fox carried a rim fired Winchester 50-70. There are several problems with this statement, John Fox’s book was published in 1912 it is by looking at this date and the information he gives about the gun that several problems arise.

In 1912 the Winchester 50-70 did not exist and would not until Winchester introduced the Model 70 in the 1920’s this was the first gun by Winchester that used 50 caliber ammunition and no ammunition produced larger than a 44 has ever been produced in a ‘Rim Fire’ variant, so what is it that John Fox is telling us? Basically what he is saying is wrong caliper wrong gun…

As we have already stated no “rim fire 45” ammunition has ever been produced. So how could the 45 rim fire gun be “common guns in Kentucky” as stated by Henry Hall and David Ellison? Simply put… Government mis-designation and corporate greed.

The closest ammunition to a 45 rim fire was the .44-40 made for the 1873 Winchester the “gun that won the West” however this ammunition was center fire as well but it was an adaptation of the ammunition that was used in The first Winchester rifle – the Model 1866 – Nicknamed the “Yellow Boy” because of its receiver of a bronze/brass alloy called gunmetal, it was famous for its rugged construction and lever-action “repeating rifle” mechanism that allowed the user to fire a number of shots before having to reload. This rifle was made in both civilian and slightly more powerful military models, they both used shells based on the Henry .44 Long Rim fire cartridges.

In 1873 Colt started manufacturing the ammunition for its new Single Action Army revolvers and touted the fact that the pistol could use the popular .44 Henry long rim fire as well as the new “more powerful .45 ammunition” made for the Army. However It was the same ammunition in a different package this would become a problem for Colt, as at the same time the United States ammunition company started producing a .44 Long with the initials US stamped onto the casings. Because these shells were the same size as those made by Colt and they were cheaper, they soon picked up the nickname 45govt and the name stuck.

In 1871 the Winchester ammunition originally known as the .44 Long or more commonly 45 govt was faded out and no longer produced with the introduction of the Winchester 1873 and the new center fire .44-40 but the Colt company would pick up the popular .44 long rim fire and manufacture it along with the rim fire “Colt .45” until 1880 a mere seven years, because of lagging sales due to the cheaper and more popular .45govt made by the United States Ammunition Company.

The .44 long, rim fire ammunition would be manufactured by different companies well into the 1930’s… Although it is extremely hard to find exact dimensions of the .44 long or 45govt because most of the information about it has to do with the ammunition called .44 flat that was used during the civil war. Luckily the Winchester 1873 used the same ammunition converted to center fire and finding the dimensions of the .44-40 WCF is quite easy.

First however we will look at the ammunition that was made for and used by Doc’s gun the .45×75 WCF although the 1876 rifle would only be made through 1897 and had several variations only one was smaller than the .45 and all would be center fire… The only .45 variations was the .45×60 but the shell would have the same casing as the more powerful .45×75. The casings used for the rifle cartridge were bottle necked and 1.895 inches long with a width of .547 inches with a slightly larger rim.

The more common ammunition .44 henry long rim fire, which was converted by Winchester to the new .44-40 WCF had an overall casing length of 1.305, just 5/10th’s of an inch shorter than Doc’s ammunition and a width of .525 which is 200th’s of an inch smaller in diameter these differences were so sleight that they could not be measured by the eye… What this means is that the rim fire ammunition found at the crime scene could have been loaded into Doc’s gun. However the slight variance in the dimensions of the shell casings meant that the 1876 Winchester could not chamber the round and that each shell would have had to be hand loaded, and most importantly because of the slight difference in the size of the width of the shell they would not sit dead center in the chamber… in addition The rim fire ammunition shells found at the crime scene could not have been fired by Doc’s gun because of the differences between center fire and rim fire ammunition. As we said the shells could have been hand loaded into the gun but because of the size variation these shells had they been loaded into Doctor Taylor’s rifle it would have produced a mark on the shell that was “Just off Center” and they would not have fired.

This is a fact that is pointed out in the stories about the jury when they questioned the validity of the claim that Doc’s gun was the murder weapon… All the stories says that the gun was dry fired using one of the rim fire cartridges found at the crime scene and Doctor Taylor’s rifle produced a mark that was “just off center” the gun was then examined by a “Expert” and according to the witness the plunger was in the gun different than any gun he had ever seen. As Stated before Doc’s gun was a model 1876 Winchester when first made they were produced in limited numbers and this was the first true high power center fire gun that Winchester had made.

At the time of the trial the model 1873 Winchester the gun that “Won the West” was a more common gun it was specifically made to shoot the Winchester .44-40 center fire ammunition. And as we have already stated there were many weapons available that were able to chamber and fire the widely popular rim fire Henry .44 Long that was more commonly known at the time by its “military name” the 45govt. However, as we have already said, because of the difference in the center and rim fire ammunition neither the 1873 nor Doc’s 1876 rifles could fire the rounds.

The final thing to point out about the gun and the ammunition is that from the start of the trial the shell casings had been entered into evidence. During the trial there is evidence presented about Doc’s gun by the prosecution however the gun itself had not been entered into evidence nor had it been requested as evidence by the state, this is because in the indictment, it is stated that Doc had used his pistol. However, by the time of the trial the prosecution focused on the rifle, because Dr. Taylor’s pistols were Colt 45 caliber center fire, and would therefore be easily dismissed. This is highly important because at the time it was customary to carry pistols and rifles in the same caliper; the reason for this was pure necessity, as only one type of ammunition would be needed for all the weapons carried.

It is only after the Defense called it final witness, who testifies to shooting the gun during the trial. That the Judge stops the trial, wants to know where the gun is, and it is then entered into evidence at the recalling of the defense witness S N Taylor, Doc’s son.

Although the trial is said to have lasted six days, the testimony was finished up on Friday September 9th, and the jury went into deliberation. Shortly after, the jury sent word to the court that a question about the gun had arisen. The testimony and the shell casings from the crime scene all pointed to a rim fire rifle, however one of the jurists I.N. Mills, had examined the rifle when it was entered into evidence, and said that he thought that it was a center fire model. The rifle was then examined by Sheriff Wilson Holbrook and one of his deputies then sent to the Jury.

Three men on the jury Wm Wolfe, P Debusk, and E Tate took it upon themselves to dismantle Dr Taylor’s rifle, and examine the plunger, and the firing mechanism of the rifle. Their conclusion was that the rifle had been tampered with, and had been altered to fire center. This was sworn to by all three men in an affidavit before court clerk J E Lipps, dated Sept 10th, 1892. This is further backed by a second affidavit from I.N. Mills, who states that after the men took the gun apart, they had shown him how the gun had been altered from a rim fire model, so that the plunger would strike center.

This is further corroborated in an affidavit made by Sheriff Holbrook, who states that he had given the rifle to one of the Jury members however; he could not recall the name of the man. He further states that when the jury had come down on the evening of the ninth, as the court was going into adjournment for the day, that one of the jury had told him that they had taken the rifle apart, and that one of the pieces was loose, and that they could not get another piece back into the gun, and asked him to relay that message to the clerk. However, Sheriff Holbrook goes on to state that on the morning of the 10th, as the jury was coming into court to rendered its verdict, one of the jurors had given him the piece of the rifle that they could not get back into the gun, and that it was being turned in with the affidavit.

The court then requested the rifle to be examined by an “Expert”. This expert was deputy sheriff John A Miller, who was also the local gunsmith. Upon examination, John Miller swore in an affidavit before court clerk J E Lipps, dated Sept 10th, 1892 quote “I, John A Miller, do swear that since the gun produced to the jury as the gun of M B Taylor, was returned by the jury, I have examined the said gun and find that that portion of it known as the plunger is now in the gun differently from the way they usually are in Winchesters, and differently from the way I ever noticed one before, and I have examined several of them.”

It is of great importance to note; that these Jurists acted upon their own volition, without seeking permission from the court. Moreover, as stated in a newspaper interview of Dr Taylor while he was waiting appeal, neither the prosecution nor the defense had been present when the examination by the Jury had taken place. This fact alone should have triggered a mistrial, and was argued at length by the defense. However, the Judge sided with the jury, and it was decided that Doctor Taylor had altered the rifle in some manner. The testimony of Jane Mullins had been discredited, and thus this “evidence”, discovered by the jury, has forever since been cited as evidence for the guilt of Doctor Marshal Benton Taylor.

After the jury rendered its verdict, Doctor Taylor’s council moved the court in arrest of the judgment, to set aside the verdict of the jury, and grant him a new trial for various grounds of error assigned at bar, which motion the court overruled and the prisoner by counsel excepted. Twelve bills of Exception were signed by the court and ordered to be made a part of the record of the case, and an appeal to the Supreme Court was there upon noted. At the time it was customary that the Judge in the case, and not the council, would write the letter of appeal to the higher court. However the 12 exceptions were not in the appellate letter. We know this because The Court of Appeals granted a hearing, and after reading the transcript from the lower court, and hearing arguments from the Commonwealth attorney, and Doc Taylor’s counsel, Denied the appeal, and the request for a new trial based on lack of cause…

This means that the 12 exceptions ordered by the lower court to be made a part of the record of the case, were not attached to the appeal, or they were ignored. Either way, whatever those 12 exceptions were there is no known record, as all records other than the transcript of the original trial, and the later re-sentencing trial has been lost… Along with the rifle, and the piece that was entered with the affidavit made by Sheriff Holbrook.

 

Authors note: The .44 caliber was so popular at the time that in 1893 Winchester introduce a variant of the model 1873 and conversion kits for existing models that had two firing pins that allowed the rifle to not only shoot the center fire ammunition that had been made for the rifle but would also allowed it to fire the more popular rim fire as well. In 1897 the last of the 1876 Winchester rifles were produced, and in the 1920’s production of the ammunition was discontinued as well.

 

Sources:

A Narrative History of Wise County, Virginia By Charles A. Johnson Pub. 1938. The Trail of the Lonesome Pine by John Fox Jr. Pub. 1908 | AmmoGuide, | .44 Henry| Wikipedia, | .44 Henry Cartridges Winchester rifle Wikipedia, | .44-40 Winchester Ballistics GunData.org, | THE CARTRIDGE COLLECTOR .44Henry | Real Guns Winchester Model 1873 Short Rifle, | .45 Schofield Wikipedia, | Richmond dispatch. (Richmond, Va.) August 02, 1892, « Chronicling America « Library of Congress, | SHOOTING the Swiss Vetterli Infantry Rifle | Pensacola Fishing Forum New life for an old soldier | MILITARIA.ES 44WCF | Winchester Model 1873 Carbines For Sale by LeRoy Merz | Antique Firearms Winchester Model 1873 Repeating Rifle | stevespages.com 1873: Year of the Guns | Taylor& Co. Trapdoor Carbine Sporting Rifle and Colt Single Action Army | Guns of the Old West | COLLECTOR’S CORNER: WINCHESTER MODEL 1873’S BY RAY HOUSE |Winchester rifle Model 1873 Wikipedia, | Winchester Collector | RareWinchesters.com… A private collection of rare and historic Henry and Winchester repeating arms| The Winchester Repeating Rifle, The Gun That Won The West Antique Ammo | Western Frontier Collectible.

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