EOW: April 1, 1910
In April of the year 1910 Earl McFarland, a man from 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.
Earl McFarland, a man with a linebacker’s build, was known to make physical threats, many with a drawn pistol, always making it clear that he wasn’t the sort to back away from trouble. This attitude and the continuing conflict with Murphy, Houston’s night shift chief, led to the death of Murphy, 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. On a change of venue to Galveston, both sides picked the first-ever jury in Texas with as many as six African-American men.
The steps leading up to the shooting and trial unfurled in downtown Houston where 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 close-by environs.
The two men had liked each other up to a point where nothing changed a person’s attitude quicker than a grudge that starts building up against the man who fires him. Murphy fired 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. McFarlane bore out this line of reasoning in the months leading up to the shooting in the early evening of April l. Houston police had arrested their former colleague on different occasions for disturbing the peace, pulling his gun on an officer, fighting with the 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, obviously outnumbered since 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 was one among the many threats the two men made against each other, almost always taking turns to vow, “I’m going to kill you.”
It was McFarland who followed through on his word, 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. 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,” where patrol officers knew they could find him. McFarland also knew Murphy’s habit. And sometime between 9:10 and 9:15 he arrived outside the diner with a friend, Joe Vining, to pick up some roast beef to-go.
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 causing immediate death.
One witness thought he heard Murphy say, “Oh, my God” before he expired. Martin Schleier, a waiter and night manager, said Murphy had just finished eating when McFarland came in with a pistol, fired one shot and dropped the pistol behind the counter. He said Murphy never drew his own gun. Two other diner employees agreed with Schleier’s account and one customer thought he heard McFarland say, “Drop your gun” before he fired the shot. As Schleier telephoned for an ambulance, HPD night Sergeant R. L. Ward rushed in and found his night chief on the floor and speechless. 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. Priester was certain about two pertinent facts at the scene of the shooting – Murphy died almost instantly and had his gun still holstered. 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.
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. McFarland requested to be taken to the jail and not to the police station. Officers took him to the station. O’Leary said he heard the shot from several blocks away and saw McFarland walking on Preston toward Main. “I was too quick for him,” McFarland told O’Leary. “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 suspect appeared ill at ease with beads of perspiration “upon his forehead.” He allowed a few words to escape that made it into print: “I’m sorry it happened. I had to do it to defend myself.”
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 there many years as a police officer and plain-clothes detective. He was the first patrol wagon driver for the Galveston force, appointed to the job in 1889 on the day shift. He resigned in 1892 but returned a year later when he worked as a patrolman before returning to the job of plain-clothes detective. He joined the Houston Police Department on May 1, 1902 as a detective and served in that capacity until 1907 when he was appointed deputy chief at age forty-five. He was well-liked by the men under him, especially those serving at night.
Coincidentally, Police Chief George 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, who 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 Reverend 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 Chief 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 its time. More than three hundred witnesses were subpoenaed for the February 1911 trial, most put on the train 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 Lewis 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. Obviously the local lawyers knew the jury panel far better than their opponents.
Judge C. W. Robinson called a 250-member jury panel with 161 of them making it to the building. As customary then as now, 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 ninety years later.
The grueling process ended with the final selection of a jury consisting of six white men and six black men. 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.”
The differences in strategies were marked even from the beginning. Mrs. Murphy, still weak from her illness and unwilling to play the role of an innocent victim, avoided the courtroom. As so often happens in courtroom settings, she sat close to McFarland’s family, remaining silent. It wasn’t too long before she left for 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. McFarland was separated from his wife. The defendant himself was confident of acquittal. He said so to the news media, whose members noticed that McFarland’s weight had dropped from 248 pounds at the time of the killing to 171 pounds as his trial began.
The state stuck to the basics, calling witnesses who recalled 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. Three witnesses said the chief’s gun was never in a position to be fired in self-defense. According to testimony for the prosecution, McFarland simply carried through with his vow to shoot Murphy when he didn’t have his “gang” of lower-ranking officers for help. He did so in cold blood, testimony showed.
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 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 Murphy was engaged in an adulterous affair. The lawyers also called to the stand a Dallas woman who testified she went to see 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.” She quoted Murphy as saying he would kill McFarland or McFarland would kill him.
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 state argued that Murphy never had a chance to protect himself in self-defense when McFarland came into the eatery with his gun drawn. Since the shooter was no longer a police officer, he was actually carrying the weapon illegally.
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. And 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.”
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 reporters had begun using his full name instead of just “M. Johnson.”
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, succeeding in trying Murphy, not McFarland.
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.
There have been some sergeants, a few detectives, fourteen 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.