In April of the year 1910 Earl McFarland, he of a prominent law enforcement and public service family in Southeast Texas, had it in for his former boss, Houston Deputy Police Chief William E. Murphy.
The feeling was quite mutual. It started when it became Chief Murphy’s duty to fire McFarland from his position as a patrol officer in the Houston Police Department a few months before.
Although crippled from a childhood accident, McFarland had moved around long enough on the force to develop a reputation as a hell-raising, hot-tempered maverick, a disposition that apparently did him in as an officer. Yet he held a few trump cards, including a law enforcement connection – his brother L. R. “Len” McFarland was a deputy U. S. marshal – and political tie – brother W. I. “Will” McFarland, a Richmond resident, had been the Fort Bend County tax assessor/collector. The McFarland family knew many people since it had been living in the Houston/Richmond area for more than half a century.
The days just before and right after his dismissal on Murphy’s watch saw this strong man with a linebacker’s build make physical threats, many with a drawn pistol. And he usually made it clear to all present that he wasn’t the sort to back away from trouble and would use his six-shooter if need be.
ACCORDING TO COURT TESTIMONY, this attitude and the continuing conflict with Murphy, Houston’s night shift chief, led to the death of Murphy, whom history shows to be the Department’s highest-ranking officer killed in the line of duty. It also set the stage for the most uniquely dramatic trial up until that point in Texas history.
In many respects McFarland’s trial had the same makings as the 1995 O. J. Simpson “trial of the century,” complete with an all-star defense team, numerous witnesses, dramatic strategy and, yes, a surprise verdict. The defense even effected a change of venue to Galveston and both sides picked the first-ever jury in Texas with as many as six African-American MEN among the 12 men on the panel.
The steps leading up to the shooting and the ensuing trial unfurled in a downtown Houston as quaint as a picture postcard from the turn of the century. Patrol officers kept high profiles in close quarters. One or two took a Milam intersection, another posted himself around the corner on Preston and still others were assigned on Main, Fannin and Prairie. The police station was centrally located off San Jacinto and the bars, cafes, hotels, flophouses and theaters were in close proximity.
Each of HPD’s eight previous line-of-duty death cases involved an angry citizen, a saloon – or both, in downtown or a short distance away from the Central Business District.
It was no secret in downtown that Murphy lost no love for McFarland and McFarland couldn’t stand Murphy despite the fact that as a foot patrol officer he had liked the night chief and respected him highly as did most of the officers in Murphy’s charge. Yet nothing can change a person’s attitude more quickly than a grudge that starts building up against the man who fires him.
Chief Murphy fired Officer McFarland late in 1909 or early in 1910 for a variety of reasons, the primary one being a hot-tempered, almost constantly violent disposition that was unbecoming a police officer. The record shows that McFarland bore out this line of reasoning in the months leading up to the shooting in the early evening of April l.
‘I’ll Get You’
Within several months of the event Houston police arrested their former colleague on different occasions for disturbing the peace, pulling his gun on an officer, fighting with the Department’s chief of detectives and literally shooting off his little finger, and – on Jan. 13, 1910 – drawing his pistol and pointing it at Murphy, prompting another officer to pull his service revolver and thwart further violence.
McFarland backed away in this latter situation. He was obviously outnumbered since another three officers were alongside the chief, prompting him to vow angrily to Murphy, “I’ll get you when you haven’t got your gang.” The officers filed charges against McFarland for using abusive language. But they were later dismissed.
The incident proved to be just one among the many threats the two men made against each other, almost always taking turns to vow, “I’m going to kill you,” or words to that effect. Evidence would show that neither individual seemed to fear the other and each was candid in his admissions before others of the mutual disdain that existed and the violence that was bound to happen.
Police sources and the Harris County district attorney would later tell the world that it was Earl McFarland who followed through on his word, purely and simply, with smoking gun in hand on the Friday evening of April 1, 1910, as Chief Murphy finished off his evening meal and was in the process of rolling a cigarette at the Acme Restaurant at 904 Preston Avenue in downtown Houston.
Witnesses said the chief was in a good mood that night. He was known to frequent the Acme between 8 and 9:30 p.m. nightly for his “lunch hour.” Patrol officers on nearby beats knew they could find him there if they needed his counsel, and they often did.
Former Officer McFarland also knew Murphy’s habit. And sometime between 9:10 and 9:15 that fateful evening he arrived outside the diner with a friend, Joe Vining, having walked there from a rooming house on Travis Street near the intersection of Prairie, a matter of several blocks. According to later testimony, the two planned to pick up some roast beef to-go.
The subsequent trial testimony threw the typical defense monkey wrenches in what initially appeared to be an open-and-shut murder case.
Four witnesses in the restaurant told police investigators that McFarland entered the Acme with his gun drawn on Murphy, who was sitting on the fifth stool at the counter. McFarland pulled the trigger, his bullet entering his right arm below Murphy’s shoulder joint, passing through his arm and entering his chest cavity. When the leaded sphere struck the large bone in the right arm, it was deflected downward where – in the words of the attending doctors – “it severed the blood vessels and caused immediate death.”
One witness thought he heard Murphy say, “Oh, my God” before he expired. Others said they heard nothing but indicated they didn’t quite understand the words that may have come from McFarland’s mouth before he shot the deputy chief. Martin Schleier, a waiter and night manager, said regular customer Murphy had just finished eating. “Just at this time Earl McFarland came in the front door and was saying something about a gun. I looked around when I heard this and saw McFarland with a pistol which he was holding in both hands or was holding it in one hand and resting it on the other.
“I saw the pistol flash and dropped to the floor behind the counter. Only one shot was fired and Mr. Murphy fell to the floor. As far as I saw, Murphy made no movement at the time of the shooting.”
Two other diner employees agreed with Schleier’s account and one customer, postal telegraph manager Sidney Long, thought he heard McFarland say, “Drop your gun” before he fired the shot at Murphy.
As Schleier telephoned for an ambulance, HPD night Sgt. R. L. Ward rushed in and found his night chief on the floor and speechless. “The clothing of Mr. Murphy on his right shoulder was blood-soaked and a small pool of blood was under on the floor,” Ward said. “Mr. Murphy was breathing when I first got to him, but was dead within a minute or two after my arrival.”
Seconds later, Dr. W. G. Priester, who had been in a nearby pharmacy, ran in to administer to Murphy. Dr. Priester was certain about two pertinent facts at the scene of the shooting – Chief Murphy died almost instantly and had his gun still holstered in a back pocket of his trousers. Later, the doctor and others who examined the body said the shot through Murphy’s right arm rendered impossible his ability to use his right hand to effectively go for his gun after the only shot was fired.
Since there was no radio or television, the quickest way to spread the news of note before the morning Post hit the streets was word of mouth. The word spread like wild fire. Other police officers from downtown beats were on the scene within minutes.
McFarland, literally holding a smoking gun containing one hot spent cartridge, didn’t get far from the front entrance to the Acme. Two officers from nearby beats, H. W. Depenbrock and Thomas O’Leary, got to him first. “I overtook McFarland about two doors from the place of the killing and arrested him,” Depenbrock recalled. “At Main Street he requested that he be taken to the jail and not to the police station. I took him to the station house.”
Groundwork for Defense
Officer O’Leary said he heard the shot from his beat several blocks away and saw McFarland walking on Preston Avenue toward Main Street. “His actions were suspicious and he kept looking back,” O’Leary said. “I put my hand on his shoulder and asked him what the excitement was about. His only answer was, ‘I was too quick for him.’
“I asked him who fired the shot and he said, ‘I had to defend myself.’ ”
Suddenly – only minutes after the deadly shooting took place – the perpetrator laid the groundwork for his defense.
A Houston Post reporter pursued McFarland all the way to the county jail, where – The Post later reported – he appeared ill at east and extremely nervous. “His coat was off, his tie removed and his shirt collar turned down and in. Beads of perspiration stopped upon his forehead, which he was continually mopping, and he complained of the heat.”
He had nothing to say to the reporter but allowed a few words to escape that made it into print: “I’m sorry it happened. I had to do it to defend myself.”
After that, silence.
Then the defendant continued to “exhibit signs of great nervousness” and at one point remarked, “It’s awfully hot after this rain.”
At the Murphy residence east of downtown some fellow officers wrestled with the words they needed to break the news to Mrs. Murphy, who had been bed-ridden with illness for a number of days. They finally did so gently, yet still broke four hearts – those of the new widow, daughter Margaret and sons Willie and George.
William E. Murphy’s law enforcement career began in Galveston in the late 1880s. He served the Island City many years as a police officer and plain clothes detective. He was the first patrol wagon driver for the Galveston force, having been appointed to the job in 1889 on the day shift.
He resigned in 1892 but returned to the Department a year later when he worked as a patrolman before returning to the job of plain-clothes detective. He served through the late 1890s before quitting for a period of time before joining the Houston Police Department on May 1, 1902 as a detective.
Murphy served in that capacity until 1907 when he was appointed deputy chief at age 45. A report from Police Chief George Ellis said, “His services as an officer were entirely satisfactory as was indicated by his promotion from detective to night chief. He was well-liked by the men under him, especially those serving on the night police.”
The Chief is Silent
Coincidentally, Chief Ellis was out of town on a hunting trip when the shooting took place. The Department had only two vehicles at this time and one was sent to fetch the chief on this dark night in HPD history. Once back in town he was not too talkative about the tragic event other than to echo the words of Mayor H. B. Rice that Houston had lost a dedicated officer in the line of duty. Rice and Ellis vowed that the Department would conduct a full investigation in the preparation of a habeas corpus hearing and, eventually, the trial.
Funeral services were held at the Murphy residence on Sunday afternoon, April 3, 1910, with the Rev. Dyek of the German Lutheran Church officiating. Burial was in Evergreen Cemetery. The home of the deceased officer was fully decked out in floral arrangements from fellow officers and friends from all over Houston and Galveston. George Murphy, the deceased chief’s brother, came up from Galveston for the service.
The active pallbearers included Galveston Police Chief W. H. Perrett, Houston Chief Ellis and W. F. Kessler, Houston’s chief of detectives. The service was under the direction of the Knights of Pythias Lodge in Houston and Settegast-Kopf Funeral Home.
After a habeas corpus hearing prosecutors took the case before a Harris County grand jury, which promptly indicted Earl McFarland for murder in the death of Deputy Police Chief William E. Murphy. A judge refused bail and kept McFarland in the county jail until trial.
McFarland’s defense team began to take shape over the summer and fall of 1910 and succeeded in getting a change of venue to Galveston County, setting an early stage for the most celebrated case of this time period.
Hindsight strongly suggests that the defense seized every possible advantage by getting the venue changed and setting the trial for February 1911. More than 300 witnesses were subpoenaed, many of whom would have to be put on the train from Houston to Galveston and quartered in hotels until called to testify.
Houston’s prosecution team included three or four assistant district attorneys with the DA himself, Richard G. Maury, making intermittent appearances before leading off the state’s closing arguments.
The trial took place almost a century ago, yet the defense team closely resembles the glamorous stalwarts of O. J. Simpson’s defense team. McFarland’s group of experts included Judge John C. Williams, a former judge now on the defense side of the bar, and Henry E. Kahn, Elmo Johnson and John T. Wheeler, all of Houston; and Galveston attorney Tom C. Turnley and two of his fellow members of the Galveston bar – Lewis Fisher and the flamboyant Marsene Johnson. And by the way, Fisher also happened to be the mayor of Galveston at this time.
To say that the defense team had a decided edge with the Galveston lawyers present might be a fair assumption given what proceeded to take place at the Courthouse. They started playing their cards right during the jury selection process, a key element for the defense in every trial like this one. One could argue that the Galveston lawyers knew the jury panel far better than the opponents from 54 miles to the north.
The court called a 250-member jury panel with 161 of them making it to the building. Of those, Judge C. W. Robinson excused 42 primarily because of sickness. A few were ineligible because they couldn’t read and write the English language. The judge reversed himself on an initial decision to excuse four prospective jurors because they failed to pay their Poll Tax. As customary then as it is now, the lawyers asked each prospect the same questions, taking care to learn just how much they knew from newspaper publicity and word of mouth. They challenged accordingly.
Then something happened that never had before in a Texas criminal court: the first two jurors officially picked were black men!
This was unheard of during this period in Texas history. Newspapers identified each man by name, occupation and address – a practice that would never pass muster in a criminal district court more than 90 years later when great care is taken to ensure that no information about any sitting juror is made public in a newsworthy case.
What a Jury!
The somewhat grueling process finally ended with the final selection of a jury consisting of six white men and six black men. Newspaper accounts quoted attorneys who were spectators in the courtroom as saying that never before in this section of the state was a jury composed of half white and “half Negroes” impaneled “to pass upon a white man’s life or liberty.” But both sides said publicly that they were satisfied and ready for a classic court battle.
The defense attorneys must have winked at one another, for they had plans to turn the ethnic makeup of the jury into a decided advantage before the trial was over.
The stage was set and Judge Robinson told prosecutors to call their first witness in a courtroom The Houston Post described as “packed almost to the point of suffocation with spectators both from Houston and Galveston, a number of whom were women.”
The differences in strategies were marked even from the beginning. Mrs. Murphy, still weak from her illness and obviously unwilling to play the role of an innocent victim, avoided the courtroom whenever possible. As so often happens in courtroom settings, she sat close to McFarland’s family, very likely not saying a word to its members. But it wasn’t too long before she left for her home in Houston.
Defense attorneys, on the other hand, paraded McFarland’s aging, gray-haired mother and his adoring curly-haired daughter, who quickly ran to hug her daddy upon seeing him at the defense table. McFarland’s sister also was present as were his brothers, Will and Len. Although the record doesn’t tell us exactly what was happening between McFarland and his wife, it was apparent from his living arrangements before the shooting that the couple was separated.
McFarland himself was confident of acquittal. He said so to the news media, which described the defendant as having “lost considerable flesh” after more than 10 months of confinement, lately in the Galveston County Jail. His weight had fallen from 248 pounds at the time of the killing to 171 pounds now as his trial began. “His eyes are not as bright as they appeared to be in former hearings and his nervousness has increased considerably,” The Post reported.
State’s Case Vulnerable
The state stuck to the basics, calling witnesses who recalled Earl McFarland’s almost constant thorny presence in the side of the Houston Police Department, an irritation that began as soon as Chief Murphy fired him.
The police witnesses and several doctors described in their testimony how the fatal bullet from McFarland’s revolver almost instantly killed Murphy, who had no chance whatsoever to return the fire. His gun was in its holster and stuffed in the hip pocket of his trousers, as McFarland entered the Acme Restaurant with his gun drawn. Three witnesses said the chief’s gun was never in a position to be fired in self-defense.
According to testimony for the prosecution, Earl McFarland simply carried through with his vow to shoot Murphy when Murphy wasn’t surrounded by his “gang” of lower-ranking officers. He did so in cold blood, state’s testimony showed and state’s attorneys would finally argue.
Curiously, one key state’s witness, who was in the Acme Restaurant and had seen the actual shooting, was not produced in court until the defense had closed. That was not the only factor in the case that went bad for the state’s team after it rested much sooner than had been expected.
The all-star defense team, with Marsene Johnson taking the lead, had a strategy that included what followers of today’s criminal courthouse would term “the oldest trick in the book.” That slick legal maneuver must have begun somewhere and it could very well have been in Galveston in 1911.
McFarland’s lawyers would put Murphy on trial. The deceased deputy police chief was certainly unable to defend himself. They would call witnesses who would allude to a mysterious “Mexican woman,” intimating that William E. Murphy was engaged in an adulterous affair.
These slick lawyers also would call to the stand a Dallas woman who testified she went to see Chief Murphy about a theft case against her nephew involving $72 the lad had taken after breaking into a Houston saloon. Mrs. John Slider also wiggled through an already-opened can of legal worms by testifying that Murphy told her in a conversation about McFarland that he intended to “fix him so that no one would trouble him again.” He would kill McFarland or McFarland would kill him, Mrs. Slider quoted Murphy as saying.
Actually it was the “missing” $72 that helped the defense in its attack against the dead man. Mrs. Slider said Murphy vowed to her that if the money were repaid to the victim no charges would be forthcoming against her nephew. All she had to do was provide it to him, Murphy, and he would turn it over to the saloon owner.
The witness testified, however, that even though she provided the cash to Murphy, the saloon owner never received it and the district attorney brought charges against her nephew, who was later convicted of the theft offense.
As the defense’s side of the case came to light, Mrs. Slider turned out to be one of at least nine witnesses who testified they had heard Chief Murphy make threats to take the life of Earl McFarland.
“The first time I lay eyes on McFarland I’m going to kill him,” one sworn witness told the court.
Others testified about similar comments and quoted Murphy, directly or indirectly:
- “I’m going to settle it. I’m going to murder that crippled (blankety blank).”
- McFarland “was trying to interfere with him and his family about a Mexican and that he would rather kill the — — – —– (expletive deleted) than have him break up his family.”
- Whoever kills McFarland “would be promoted and given the best job on the force.”
- “McFarland would have to ‘leave’ ” if he named Murphy to a grand jury looking into the affairs of the Mexican woman.
- “If he (McFarland) doesn’t leave town I’m going to kill him.”
- “I’m going to clean out McFarland and the others and I’m going to get that cripple.”
The youngest witness to be called was 14-year-old Barney Young, a messenger boy for the Postal Telegraph Company who was in the Acme Restaurant at the time of the shooting, drinking a cup of coffee.
The young man testified that he heard someone say, “Drop that gun!” before seeing Murphy reach in his back pocket as a shot was fired.
The state would argue that Murphy never had a chance to protect himself in self-defense when McFarland came into the eatery with his gun drawn. And since the shooter was no longer a police officer, he was actually carrying the weapon illegally.
But Barney Young was a defense witness who had seen what happened. The state’s witnesses, restaurant employees and at least one customer, said they saw McFarland with a gun but were ducking behind cover when the gun actually went off.
The defense rested and final arguments were set to begin at least a week before the Courthouse observers had predicted, well inside the 10 days that many thought would be required to question all the witnesses for both sides.
Harris County District Attorney Richard G. Maury took the lead for the prosecution and argued in final summation, “If he (McFarland) was afraid of Murphy and believed that he intended to take his life, would he or would any other sensible man have gone into that restaurant that night?”
Maury’s assistants tried to hammer home McFarland’s penchant for violence and violent threats. They quoted doctors who asserted that Murphy hadn’t pulled his gun before the shot was fired and that his fatal wound made it impossible to return fire.
They tried to make something of the fact that defendant McFarland never took the stand in his own defense.
The record shows that the jurors didn’t buy off on the state’s logic and instead went along with the defense team’s charm and cleverness. The smiling Mayor Fisher spoke briefly but carefully, acknowledging defendant McFarland’s devoted mother and daughter.
Turning to the jurors, the mayor/defense lawyer said, “Restore to that gray-headed mother and beautiful curly-haired babe what is theirs and when you have done that you will have done your duty.”
But by far the most dramatic moment was saved for Marsene Johnson of Galveston – on his “home court” to argue for more than one hour. Johnson reminded those present that respect for him must be growing since newspaper reporters had begun using his full name instead of just “M. Johnson.”
Marsene Johnson reminded the jurors of the witnesses who quoted Murphy as saying he was going to “get that cripple,” a reference to McFarland’s crippling accident as a child, which caused him to walk with a limp.
“I would not ask a one-eyed man how he lost his eye, nor would I call a colored man a Negro because he can’t help it; and I would never call a Chinaman a chink nor an Italian a dago.”
At last the defense team took strong advantage of its racially mixed jury with Johnson weaving in Murphy’s “prejudice” against crippled men like McFarland based on his quoted comments to at least two witnesses.
The defense team had captured the trial’s momentum and never let up from that critical turning point. They had succeeded at putting Deputy Chief Murphy on trial, and the chief wasn’t present to personally defend himself.
It took the jurors four hours to return a verdict of not guilty.
We have no records of what then became of Earl McFarland except that he went home with his mother and daughter a free man. It is believed that the defendant had a distinct advantage given the fact that many officers in the Houston Police Department, including Police Chief George Ellis, were friends with McFarland’s brothers.
Adding to the curiosity is the fact that Chief Ellis resigned his position shortly after the trial, never having testified or made any definitive public statement on the case. Ellis was the last police chief elected by the people. When he was in office the law was changed so that Houston’s police chief became an appointed position, which it has been ever since, with each new mayor making his or her choice.
William E. Murphy was definitely on duty while he was inside the Acme Restaurant, the eighth officer to give his life for Houstonians. Since he suffered that fatal wound, 94 other officers from what we now call Space City have died in the line of duty.
There have been some sergeants, a few detectives, 13 solo officers, one reserve captain and many patrol officers die in the line of duty in Houston, but no other deputy or assistant chief of police.