Fitch made a tough call and won. No one in that tiny wooden courtroom in a dusty mining town could ever imagine that the fine points of the case would be debated for a century. Fitch secured the Earps' release, and that was his job. He could never have considered the impact his defense would have on subsequent history.
More puzzling was the prosecution case. Will McLaury, Price, and their pals did not summon two witnesses who might have provided key testimony. Charles Hamilton "Ham" Light, who testified at the inquest that Tom McLaury had been the first to go down, was never called by the prosecution. But Light had a history of allegiance to the cowboys. He had been among the men who posted bail for Pete Spence after the stage robbery arrest, and his pro-cowboy bias could quickly have been exposed by the defense team.
The most interesting absence is that of Patrick Henry Fellehy, who told the inquest panel that he had overheard Virgil Earp say he would not arrest the cowboys but would kill them on sight. Fellehy's testimony would have established premeditation and would have greatly enhanced the prosecution's case. Most likely the lawyers considered Fellehy's recollection faulty-not even Behan made the claim that Virgil Earp had planned murder, and Behan said everything he could to undermine the Earps. Had Virgil Earp made such a comment, Behan would have repeated it. Fellehy's declaration becomes particularly important because the Spicer hearing elicited no statement indicating premeditation by the Earps. The only other evidence of premeditation came in Martha King's report of overhearing the snatch of conversation, "Let them have it," from one of the Earps. King did not hear what words preceded this comment-the speaker could have said, "If they go for their guns, let them have it," which would change the meaning of the comment. Without the Fellehy statement, and with the King statement apparently only part of a conversation, there is no indication of premeditated murder.
That Fitch did put Sills on the stand probably indicates the itinerant engineer was no hired defense stooge. Had he actually been a false witness, the prosecution would have had time to break his story before the case came to trial, and Fitch would not have been likely to take such a gamble.
Spicer became the focus of bias charges that lingered for generations. Earp bashers would charge him with everything from being intermarried in Wyatt's family to being a business associate. While Spicer definitely leaned toward the Republican law-and-order crowd, his rulings seem to conform with standard territorial law, and he followed proper procedure. Perhaps the greatest issue was his allowing Earp to read a prepared statement. The prosecution argued that such a statement should be virtually an ad lib. But Arizona's territorial law allowed such testimony in a preliminary hearing and did not differentiate between a prepared reading and off-the-cuff remarks. Territorial law also said such a statement could be read without the witness facing cross-examination. This was an accepted point of Arizona jurisprudence and never questioned by the prosecution. Spicer clearly ruled within the bounds of the law, even if the law itself would not survive modern scrutiny.
The most untidy part of the Earps' preliminary hearing was that it failed to resolve the issue clearly enough to exonerate the Earps in the minds of the Tombstone townspeople or to history. The thought of unarmed and surrendering cowboys being shot down in the streets made a much greater impression on the town's collective psyche than did the Earps' defense of marshals simply doing their duty to disarm the rowdy element. Shock value always has longer shelf life than tedious detail.
The McLaurys and Billy Clanton probably never really appreciated the severity of the situation in Tombstone that cold October day. They may well have simply been finishing their business before leaving town, and Billy appears to have been trying to mollify his hot-headed, drunken brother and get him out of town before trouble began. Large-scale shootouts in the streets almost never happened, even on the frontier, and even the more sensible of the group -Billy Clanton and Tom McLaury-could not have expected such a gunfight, if indeed they planned to leave town. Their rifles were still in their scabbards, and they were obviously unprepared for confrontation. The Earps had every reason to expect an attack after Ike's threats, then finding the cowboys congregated near Doc Holliday's rooming house and armed after the Earps understood Behan to say he had disarmed them.
Spicer did not condone the Earps' action. He criticized Virgil Earp for his choice of deputies. The head-bashing Earps may well have been far too zealous in their treatment of Ike Clanton and Tom McLaury. And they may have been injudicious in asking Holliday to join the fight. But when Wyatt, Virgil, Morgan, and Doc walked up Fremont Street to that vacant lot, their minds were acutely aware, primed by Ike Clanton's threats. They knew they were facing skilled gunmen, and they had to be prepared for action.
When the marshal's posse walked up the street, they found not just the Clantons and the McLaurys, but also Billy the Kid Claiborne, with sharpshooter West Fuller, Behan, and Billy Allen nearby. They were in the vacant lot next to Holliday's rooming house, where Clanton had earlier made threats against the dentist. Rumors of Ike's telegram for help floated through town. The Earps could have been facing eight men, with Fin Clanton and a dozen more riding into town at any minute. Never could they imagine that bold Billy Claiborne would break and run, or that Ike would make his dash. The Earps drew their pistols expecting far more opposition than they received.
The key points of the prosecution case rested on whether the Clantons and the McLaurys had their hands in the air, whether Tom McLaury was unarmed, and whether Holliday fired the first shot.
As to the alleged surrender, seemingly impartial witnesses said there were no hands in the air. Even Behan never claimed to have seen the Clantons or McLaurys raise their hands. Perhaps the most condemning statement appeared in the Tombstone Nugget the day after the fight:
Sheriff Behan appeared on the scene and told Marshal Earp that if he disarmed his posse ... he would go down to the O.K. Corral, where Ike and Billy Clanton and Frank and Tom McLowry [etc] were and disarm them. The Marshal did not desire to do this until assured that there was no danger of an attack from the other party. The Sheriff went to the corral and told the cowboys that they must put their arms away and not have any trouble. Ike Clanton and Tom McLowry said they were not armed, and Frank McLowry said he would not lay his aside. In the meantime, the Marshal had concluded to go and, if possible, end the matter by disarming them, and as he and his posse came down Fremont Street towards the corral, the Sheriff stepped out and said: "Hold up boys, don't go down there or there will be trouble; I have been down there to disarm them." But they passed on, and when within a few feet of them the Marshal said to the Clantons and McLowrys: "Throw up your hands boys, I intend to disarm you."
As he spoke Frank McLowry made a motion to draw his revolver, when Wyatt Earp pulled and shot him, the ball striking on the right side of his abdomen. At the same time Doc Holliday shot Tom McLowry in his right side, using a short shotgun 45
Since Nugget editor and publisher Harry Woods served as Behan's undersheriff, he probably interviewed Behan for the story, before the sheriff likely made little twists that could result in hanging the Earps and eliminating his political and romantic rival. The story indicates Frank McLaury made the move to draw. He may well have hesitated for just a moment, long enough for the quickacting Wyatt to draw and shoot in unison with Billy Clanton.
And the Nugget story says Behan's words were "I have been down there to disarm them," a statement that is accurate but misleading. Behan had tried, unsuccessfully, to disarm the cowboys, and his report to the Earps would have served to confuse the situation and lead to the later bitter exchanges between Behan and the Earps.46
The absence of Tom McLaury's weaponry proved more damning. The defense showed that his loose-fitting blouse could well have hidden a gun, but no gun was ever found. Spicer chose to disregard the issue.47
Years later, Wyatt would say West Fuller's father told him that young Wesley had taken Tom McLaury's pistol after the fight.48 Perhaps the most important indication that Tom Mc
Laury had been armed came from Mrs. J. C. Collier, whose family had been visiting her brother-in-law, Boston Mill foreman John Collier. She traveled to Kansas City shortly after the fight and waited two months to tell her story of witnessing the fight from a half-block away at the corner of Fourth and Fremont.
[The Earps and Holliday] approached the cowboys and told them to hold up their hands. The cowboys opened fire on them, and you never saw such shooting as followed. Three of the five cowboys were killed and two of the officers seriously wounded. One of the cowboys after he had been shot three times raised himself on his elbow and shot one of the officers and fell back dead. Another used his horse as a barricade and shot under his neck.49
Mrs. Collier left town before telling her story, possibly unaware that her testimony would have provided critically important evidence; or possibly fearing the retribution of the cowboys. The statement of a cowboy firing from behind his horse could have referred to either Tom or Frank McLaury, and would have been clarified in court. Had she made the same statements under oath, it would have resolved many historical questions. Instead it is just another newspaper story.
As to the cowboy claim that Holliday fired the first shot with his nickelplated revolver, even pro-Earp writers have accepted the possibility that the hot headed dentist, not Wyatt Earp and Billy Clanton, shot first. However, it seems unlikely that the frail Holliday would have been holding the pistol in one hand and the shotgun in the other. Holliday certainly could not have controlled the shotgun's mule-kick with one arm. To have fired the first shot, Holliday would have had to perform a quick pistol-shotgun shuffle in the midst of a gunfight. This seems both unlikely and foolish.
The most likely scenario remains the way Wyatt and Virgil Earp told the story: that Billy Clanton and Wyatt fired at almost the same time, with the barrage following seconds later. The fight almost certainly erupted more out of happenstance than through plan or premeditation. Nerves had grown raw on both sides, and Behan's misstatement led the Earps to be surprised when they arrived at the lot to find Billy Clanton and Frank McLaury still wearing their guns. When Frank McLaury moved his hand toward his six-shooter, Wyatt Earp anticipated a draw and pulled his own gun. The cowboys were clearly unprepared to fight at that point, and Virgil Earp raised the cane and tried to prevent gunfire. Both sides feared firing too late would be far worse than firing too soon.
Ike Clanton may actually have saved Wyatt Earp's life with his strange grab at Wyatt. Had Ike not blocked Wyatt from the guns of Billy Clanton and Frank McLaury, Wyatt would have been the logical target for their fire. Ike then came through again for the Earps with his unbelievable story on the witness stand at a time when the Earps seemed almost certain to go to trial. No matter what Ike attempted, it always seemed to backfire.
Wyatt left no record of how the gunfight personally affected him or his brothers. They were never completely certain who shot whom, and figuring out the fatal bullets is guesswork without certainty. Most likely, Morgan's shot killed Frank McLaury; Holliday's shotgun killed Tom McLaury; and Morgan and Virgil got hits on Billy Clanton. By hitting Frank McLaury in the stomach, Wyatt fired the single most important shot, disabling the most dangerous cowboy on the lot. However, he did not fire a killing shot. It did not really matter. After seven years, off and on, as a lawman in Kansas and Tombstone, Wyatt Earp had fought a standup gunfight.50 He had found a way to avoid killing the Dodge City troublemakers and the Tombstone toughs, but once the shooting began, there was to be no escape.
NEWS OF SPICER'S DECISION stirred the dusty town, with rumors of injustice and pending cowboy vengeance. Rumors live a life of their own, and all this talk of the Earps' involvement in the stagecoach robberies just would not die. It is a trait of human nature that many people believe the "inside story" over the facts, whether or not there is basis for the inside story.
Most Tombstone residents had been far too involved in their own pursuit of profits to take sides in the incomprehensible feud between sheriff and marshal. The dour Earps were never popular public figures, and Behan had always been one of the best-liked men in town. That Wyatt stole Behan's girlfriend could have only worked to discredit the Earps. Most townsmen knew the dead McLaurys only as ranchers before the fight and knew nothing of their links to the rustlers.
Most important, the Earps' actions had put Tombstone in jeopardy of cowboy retribution-they had not solved the problem, they had exacerbated it. From the perspective of many Tombstone residents, the Earps had shot the wrong men and needlessly threatened the town with attack. Gang war nearly broke out the night of Spicer's decision. Mrs. J. C. Collier said the cowboys planned a hit on the Oriental Saloon, where Wyatt ran the gambling concession.
"The night before we left, the cowboys had organized a raid on the saloon," Collier told the Kansas City Star. "Fifteen or twenty cowboys heavily armed were in the saloon. Just on the edge of town were almost thirty more and others were scattered around town ready to jump into the fight at the signal. A fire broke out and so rustled them that they gave it up for that time. You see we became intimately acquainted with a gentleman who boarded at the same hotel that we did and was in sympathy with the cowboys, and acquainted with all their plans. He told us about this raid being in contemplation and said that this was the second time they had been prepared to make a raid, and were thwarted by a fire breaking out and calling all the people out on the streets. He said, 'You're going away, and I don't mind telling you this.' "51
The cowboys had not made much trouble in town during the previous year, while Virgil and his brothers wore badges. The Earps' not so gentle buffaloings helped convince the cowboys they should find their fun in Charleston or Galeyville, rather than look into the cold blue eyes of the Earp brothers. But the townsfolk knew the shooting and Spicer's decision could combine to end the sense of tranquillity, especially with Virgil still hobbling and Morgan slow to recover. They could all be dancing in the nude before Curley Bill's six-shooters, or they might never dance again.
"There being two strong parties in the camp, of course this verdict is satisfactory to but one of them," Clara Brown wrote of the Spicer decision. "The other accepts it with a very bad grace, and a smouldering fire exists, which is liable to burst forth at some unexpected moment. If the Earps were not men of great courage, they would hardly dare remain in Tombstone."52
Tombstone was a town on the edge, and many citizens blamed the Earps for placing the citizenry in danger. They had not killed Curley Bill or Ringo or even Ike Clanton, just a 19-year-old boy and two brothers with no public reputation as troublemakers. Instead of the police protecting Tombstone's safety, the Earps had placed the city in jeopardy. The saloon talk turned the gunfight into undeserved death, and the blame fell to Holliday. "Doc Holliday is responsible for all the killing, etc., in connection with what is known as the Earp-Clanton imbroglio in Arizona," Ridgely Tilden wrote in the Examiner. "He kicked up the fight and Wyatt Earp and his brothers 'stood in' with him, on the score of gratitude. Every one in Tombstone conversant with the circumstances deprecates the killing of the McLaurys and Clanton."53
Gossip proved more dangerous than the drunken plans of the cowboys to attack the Oriental. Many Tombstoners believed the stories connecting Holliday and the Earps to the stage robberies and piping off gold that had never been stolen. Had the case gone to a full trial, the absurd tale would have been extin guished, but the uncertainties from the preliminary hearing worked against the Earps, with citizens ready to believe the worst.
It is a classically American story: The town complains about crime, the police overreact, and the citizenry turns against the law enforcers. It has been played out time and again in U.S. history, and the pattern keeps repeating.
While Justice Wells Spicer's decision may not have surprised the many townsmen who closely followed the case, it came as a blow to Behan and his supporters. Not only had the Earps been turned loose, with Virgil still holding his commission as U.S. marshal, but the sheriff had been publicly embarrassed for being cau
ght in an apparent lie under oath when Williams testified that he heard Behan admit that one of the McLaurys had gone for his gun.54 The only remaining hope for the anti-Earp faction was that the grand jury would investigate the gunfight. On the day of Spicer's decision, the Nugget leveled a blast that would echo through town. After noting the decision was not a surprise, the Nugget wrote:
While it is true that in some instances the evidence was conflicting, the mass of testimony adduced by the prosecution has created a general desire that all the circumstances leading up and connected with the affair be thoroughly investigated.... As it has appeared from day to day in the columns of the local press the testimony has been eagerly scanned and commented upon and a decided revolution took place, many who at first upheld the Earp party becoming the most earnest in expressing a desire for a full examination.
The remarkable document which appears in another column [Spicer's decision] purports to be the reasons which actuated the judge in his final action. But the suspicion of reasons of more substantial nature are openly expressed upon the streets, and in the eyes of many the justice does not stand like Caesar's wife, "Not only virtuous but above suspicion."
The affair will probably be investigated by the Grand Jury, now in session, but from the confessed and known bias of a number of its members, it is not probable that an indictment will be found.55
The Earp brothers might have been free to continue their overbearing ways in the streets of Tombstone, but they carried a taint as possible robbers-even murderers-in the eyes of many of their townsmen. As ridiculous as Ike Clanton's testimony appeared in the courtroom, it provided enough innuendos to keep the gossip churning through the county and cast suspicion on the Earps. The Spicer hearing left many in Tombstone unsatisfied, a meal that does not quell the appetite.
Wyatt Earp: The Life Behind the Legend Page 28