The Trial of Ray Tarbell

 

April 30, 2020

The photo above of Ray Tarbell (right) seated next to Fred Orschel was taken some years after the George Mitchell trial. (Photo courtesy of Bruce Keil.)

The second article in a series, written by Historian Shane Dunning. Shane may be reached at [email protected].

On September 28, 1909, the preliminary trial of Ray Tarbell for the killing of George Mitchell earlier that month ended. Justice of the Peace John Gibb ruled that there was enough evidence to charge the thirty-five-year-old cattleman with first degree murder. The hearing was covered extensively by the local newspapers and was reprinted throughout Montana and Wyoming. Attorneys for the defense did not call a single witness and seemingly focused on getting the State's witnesses on the record, holding their fire for the criminal trial. The result was a tale that presented Ray Tarbell as the cold-blooded killer of an innocent father of eight children and a wife pregnant with twins.

The criminal trial would commence in December that year. Before the trial began, the defense prepared for an aggressive argument to counter the State's case: that Ray Tarbell had shot George Mitchell in self-defense. Such a defense would surely escalate already existing tensions. The general cattleman-sheepman tension that seemingly precipitated the conflict in the first place had been exacerbated by the results of the gunfight itself and the preliminary trial. As the defense gathered possible witnesses, fears for their safety resulted in those same witnesses being secured in the protective custody of the Custer County Jail. Roy Garber recalled to his family that his skill at checkers was developed during his time in the facility.


Judge Sidney Sanner began the full trial in Miles City the week of December 15, 1909. The state was represented by District Attorney Sharpless Walker. The defense team was led by perhaps the best lawyer in Eastern Montana, Judge Charles H. Loud. Loud was a former cattleman and had been a member of Montana's Constitutional Convention.


The State's case closely followed that of the preliminary hearing. The testimony of that proceeding was discussed in a previous article and will only be summarized here. The key State witness was Ray Mitchell, the eighteen-year-old son of the deceased, who was on his horse beside his father when the killing happened. Also testifying for the state were Scott Mitchell, the deceased's fourteen-year-old nephew and two employees of George Mitchell.

The State's testimony consistently claimed that an initial shootout during a roundup between Ray Tarbell, John Woodley, William Eubanks and Henry Jackson (all on horseback) had been started by Tarbell. No one was shot, but Jackson was thrown from his horse. During a pause in the shooting to reload, George Mitchell rode to his friend Jackson and picked up his gun. He returned to his son Ray's location and they attempted to withdraw but were recalled by Tarbell. As the two faced each other and exchanged words, Ray Tarbell shot George Mitchell dead with one shot through the aorta. Some of the state witnesses claimed that Mitchell had not fired at Tarbell, while others could not specifically confirm this due to their blocked view of the final confrontation.


The defense called eyewitnesses William Eubanks, Roy Garber, Art Yarger, Sven Swenson, Sam Hoaglund, Beecher Warner, Bummie Schubert (recalled from the preliminary hearing) and Ray Wilson. Most importantly, Ray Tarbell took the stand in his own defense. Together, these witnesses described an event quite different from that described by the state witnesses. Eubanks described how, on an earlier visit to Mitchell's ranch, George Mitchell had threatened to kill Tarbell or Woodley if they came on his range. Two of the witnesses claimed that Henry Jackson was the first to shoot, and that Ray Mitchell had also participated in the general shootout. Ominously, Wilson, Garber and others described how Ray Mitchell and Henry Jackson had come armed to the roundup the previous day.


Ray Tarbell testified that he had been warned that Ray Mitchell had come armed to the roundup and of the threats made by his father. Because the roundup the previous day had proceeded without incident, he returned the next day (when the shooting occurred). However, both he and Woodley brought their six-shooters, something they had not done regularly before. When George Mitchell was sighted at the roundup, he claimed he sent Woodley over to Mitchell in order to determine his intentions, whereupon after some arguing, Henry Jackson fired the first shot. After the initial shootout, Mitchell obtained Jackson's gun and was confronted by Tarbell:

I rode towards him and asked him what about threats. He said he had made no threats against me but had threatened Woodley, and he still intended to do so. Just then Ray Wilson rode in between us and began talking. Ray Mitchell also said something. I told Ray Mitchell I wanted to have no words with him nor trouble with him. Mr. George Mitchell told Wilson to shut up. Then he told me to shut up and fired at me and I then immediately shot and killed him. I thought I had to kill him or he would kill me.

Six other defense witnesses testified that George Mitchell's "reputation for peace and quietness was bad." Six subsequent state witnesses were sworn and testified that "as to the reputation of George Mitchell for peace and quietness, all admitting that it was good, but that a good many considered him quarrelsome."

Tarbell's testimony also reveals that the jury had at least some knowledge of a key piece of information. Ray Tarbell had also shot and killed a man in self-defense in Bridgeport, Nebraska in 1903. Tarbell had been exonerated by the coroner's jury in that case, with no charges filed. During the final arguments, The Miles City Independent stated that "the crowd of spectators was so large that standing room was at a premium."

After an initial deliberation, the jury informed Judge Sanner that they could not agree on a verdict. The judge declined to accept this and sent them back for more deliberation. Later that day, being notified by the jury that a verdict was again not possible, Sanner terminated the trial, with the jury being ten for acquittal and two for conviction of some degree of homicide. A second trial took place six months later, in June 1910.

The testimony for the second trial reflected that of the first. This time, however, the jury returned a verdict of acquittal. The reaction of the populace, mirroring the testimony, was conflicted. Friends of the defendant were understandably pleased, while those of the victim were decidedly not. The legal system in Custer County seemed to be another, unintentional, victim. The Miles City Independent reported the verdict with an unexpected social commentary:

There was not a Miles City man on the jury, contrary to the general belief, which asserted that Miles City people have turned loose every man from the county charged with a crime. Tarbell and his friends naturally felt much elated with the result of the verdict.

Because of the verdict in the Tarbell case, assault charges against Woodley, Jackson and Eubanks were dropped by the district attorney. The dismissal of these charges gave Judge Sanner the opportunity to lambaste the factionalism of the Powder River country and its practice of carrying guns.

The jury in the last case (Tarbell's) either concluded that there was ground for reasonable doubt or adopted the defendant's contention as to who was at fault in this most regrettable affair. But it seems to me the whole thing could have been avoided...

I want to impress upon these two factions existing on Powder River this fact: There have been three homicides in that section on the country within a short space of time. In one of them it was ascertained the principle was insane; one was the result of accident; of the other the investigation has just closed. Not any of these homicides would have occurred had there not been the habit of the indiscriminate use of firearms , where none were necessary at all.

The time was when men got into controversies and lost their temper they were content with the weapons nature gave them, but it seems in these times and in that particular locality it is customary to carry firearms and sometimes to use them without any conception of what the consequences may be. I suggest to those factions on Powder River that this is an excellent time to eliminate this indiscriminate firearm business and try to do away with this rashness and ill-feeling.

Judge Charles H. Loud, Ray Tarbell's lawyer. Photo courtesy of the Montana Historical Society.

In a forthcoming third article in this series, the conflicting testimony will be examined, and the drama placed in context. As an aside, in my first article I described the difficulty obtaining a transcript of the either of the full trials. Despite several optimistic possible leads, the transcripts remain elusive. This article was prepared using newspaper accounts of the trial testimony. I am grateful for the assistance of members of the Tarbell, Mitchell, Garber and Wilson family for their help in researching this event. If anyone knows where a copy of either trial transcript can be found, I would appreciate them contacting me.

 

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