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Responding to rumors that McCarty was still lurking in the vicinity of Fort Sumner almost three months after his escape, Sheriff Garrett and two deputies set out on July 14, 1881, to question one of the town's residents, a friend of McCarty's named Pedro Maxwell (son of land baron Lucien Maxwell). Close to midnight, as Garrett and Maxwell sat talking in Maxwell's darkened bedroom, McCarty unexpectedly entered the room. There are at least two versions of what happened next.
One version suggests that as the Kid entered, he failed to recognize Garrett in the poor light. McCarty drew his pistol and backed away, asking "¿Quién es? ¿Quién es?" (Spanish for "Who is it? Who is it?"). Recognizing McCarty's voice, Garrett drew his own pistol and fired twice, the first bullet striking McCarty just above his heart, killing him. In a second version, McCarty entered carrying a knife, evidently headed to a kitchen area. He noticed someone in the darkness, and uttered the words, "¿Quién es? ¿Quién es?" at which point he was shot and killed in ambush style.
Although the popularity of the first story persists, and portrays Garrett in a better light, many historians contend that the second version is probably the accurate one. A markedly different theory, in which Garrett and his posse set a trap for McCarty, has also been suggested. Most recently explored in the Discovery Channel documentary, "Billy the Kid: Unmasked", this theory contends that Garrett went to the bedroom of Pedro Maxwell's sister, Paulita, and bound and gagged her in her bed. Paulita was an acquaintance of Billy the Kid, and the two may have considered getting married. When McCarty arrived, Garrett was waiting behind Paulita's bed and shot the Kid.
McCarty was buried the next day in Fort Sumner's old military cemetery, between his fallen companions Tom O'Folliard and Charlie Bowdre. A single tombstone was later erected over the graves, giving the three outlaws' names and with the word "Pals" also carved into it. The tombstone has been stolen and recovered three times since it was set in place in the 1940s, and the entire gravesite is now enclosed within a steel cage.