Jack McCall was tried twice for the same killing, and the first verdict did not count. On August 2, 1876, in the gold camp of Deadwood in the Black Hills, he killed James Butler Hickok. The next afternoon a miners' jury, convened by the camp itself, found him not guilty after about two hours of deliberation. Within a month he was in federal custody. Deadwood, authorities in Wyoming argued, had no legally constituted system of justice, so its verdict was no bar to a second trial. A federal judge in Yankton, the capital of Dakota Territory, agreed. In December 1876 a jury of twelve men in Yankton found McCall guilty of murder, and on March 1, 1877, he was executed in Yankton. It was the first execution in Dakota Territory.
In the federal court he was John McCall, alias Jack McCall. Little else about the man is settled. His age and his origins were uncertain even while he sat in the Yankton jail, and the explanations he gave for the killing changed from one telling to the next. The legal question that carried him from the first jury to the second, by contrast, was put plainly and answered plainly.
Deadwood existed in defiance of a treaty. The Fort Laramie Treaty, signed on April 29, 1868, between commissioners of the United States and bands of the Sioux Nation, set aside a large reservation across the western half of what is now South Dakota for the exclusive use of the Sioux. The Black Hills lay inside it. Article II of the treaty provided that no persons except those it designated and authorized could pass over, settle upon or reside in the territory it described.
In 1874 an Army expedition into the Black Hills announced the discovery of gold. Miners moved onto the reserved land and asked the Army to protect them, and by the summer of 1876 a rush was under way. Deadwood was one of its camps. It had no legally constituted system of justice, and when serious disputes arose the men of the camp settled them in impromptu courts of their own.
The victim had planned to come to the Black Hills with a party of his own once the region opened to miners. By August 1876 he was in Deadwood.
The killing took place in Deadwood on August 2, 1876. The men of the camp took McCall into custody soon afterward.
The camp moved quickly. A miners' court met the following afternoon, August 3, with a prosecutor drawn from among the camp's own men. The bartender who had been on duty that day gave evidence about the dead man's last moments. McCall told the court that he had acted in revenge for a brother killed in Kansas. The jury deliberated for about two hours and returned a verdict of not guilty, and McCall was released.
McCall did not stay in the Black Hills. He went south to Laramie, in Wyoming Territory, and there he talked openly about the killing. The man who had prosecuted him in Deadwood was in Laramie and heard him, as did a deputy United States marshal. On August 29, 1876, the deputy marshal arrested McCall.
Wyoming authorities refused to treat the Deadwood acquittal as a verdict. Deadwood, they argued, had no legally constituted justice system, and so McCall could be tried again. The deputy marshal took his prisoner to Yankton, where the federal courts of Dakota Territory sat.
McCall spent the autumn of 1876 in the Yankton jail. At the October 1876 term of the United States District Court for the Territory of Dakota, he was indicted for murder, and the case was entered as Criminal Case 16 of that term under the name John McCall, alias Jack McCall.
His acquittal in Deadwood stood in the way of any new charge, if that acquittal had been the judgment of a court. The federal judge in Yankton accepted the argument the Wyoming authorities had made: Deadwood had possessed no legally constituted justice system, and the miners' verdict did not prevent a trial in a court of the United States.
In early November 1876, McCall and another prisoner tried to break out of the Yankton jail. They overpowered the jailer, and the United States marshal for Dakota and an assistant stopped them before they got away. McCall remained in custody for the rest of his life.
The trial began in Yankton in the first week of December 1876. Two lawyers defended McCall, one of whom had worked as a surveyor in Dakota. Three men who had been in the room in Deadwood on August 2 testified for the prosecution, and each identified McCall as the man who had killed the victim.
The defense case rested on law, not on the facts of the killing. The Black Hills, McCall's lawyers argued, were part of the Great Sioux Reservation whose boundaries the Fort Laramie Treaty of 1868 had fixed, and Dakota Territory therefore had no jurisdiction over a crime committed there. Closing arguments ended after noon on December 6, 1876. The jury of twelve men rejected the jurisdiction argument and found McCall guilty of murder that day.
The presiding judge sentenced McCall to death and set the execution for March 1, 1877.
McCall spent January and February 1877 in the Yankton jail. He gave conflicting explanations for the killing in those months, first that he had been drunk and later accounts that did not agree with it or with the revenge story he had offered in Deadwood. He also prepared a written statement to be published after his death, then destroyed it on the night before his execution.
On March 1, 1877, McCall was executed in Yankton.
McCall's case turned on a single point: whether a verdict from a tribunal with no lawful standing could protect a defendant from trial by a court that had it. The answer accepted in Yankton was that it could not. The Deadwood miners' jury sat in a camp with no legally constituted justice system, on land that the United States had reserved by treaty to the Sioux, and its acquittal was treated as having no legal force. The protection against a second prosecution for the same offense never came into play, because in law there had been no first one.
The defense at trial turned the same treaty against the prosecution. If the Black Hills were still reservation land, the lawyers argued, Dakota Territory could not reach a crime committed there either. The jury rejected that argument and the conviction stood.
McCall's age at his death is uncertain. One Yankton historian put it at no more than twenty-five, and his date and place of birth remain unconfirmed.
His motive is unsettled. The revenge story he told the miners' jury, that the victim had killed his brother in Kansas, was never tested by a court, and in Yankton McCall offered other explanations that contradicted it.
April 29, 1868: The Fort Laramie Treaty sets aside the Great Sioux Reservation, which includes the Black Hills.
1874: An Army expedition announces the discovery of gold in the Black Hills.
August 2, 1876: McCall kills the victim in Deadwood.
August 3, 1876: A miners' jury in Deadwood finds McCall not guilty after about two hours.
August 29, 1876: A deputy United States marshal arrests McCall in Laramie, Wyoming Territory; he is taken to Yankton.
October 1876: McCall is indicted for murder at the October term of the United States District Court for the Territory of Dakota (Criminal Case 16).
Early November 1876: McCall and another prisoner try and fail to escape from the Yankton jail.
December 1876: Trial in Yankton; closing arguments end on December 6, and the jury finds McCall guilty of murder.
March 1, 1877: McCall is executed in Yankton, the first execution in Dakota Territory.