Wyatt Earp: The Life Behind the Legend

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Wyatt Earp: The Life Behind the Legend Page 34

by Casey Tefertiller


  On the same day he resigned, Earp apparently tried to end the feud that had engulfed and endangered Tombstone. According to the February 2 Nugget, Wyatt sent a message to Ike Clanton that "he wished to interview with him with a view of reconciling their differences and obliterating the animosity that now exists between them. Mr. Clanton most emphatically declined to hold any communication whatever with Earp." Ike had other plans, and peace was not on his agenda.

  Even in the midst of continuing danger, the townsfolk still enjoyed a little fun. There were snowball fights, football in the streets, and top performers visiting the local theaters. But not everyone had a good time in the early weeks of February. Johnny Behan, the friendliest man in town, learned he no longer had quite as many friends as he thought.

  Judge Stilwell's validation of Jackson's posse had been a direct repudiation of Sheriff Behan. The sheriff had jurisdiction to round up anyone accused of a shooting in Cochise County, and legally Behan should have been the man to do it. Had the charges actually been robbing the mails, a federal crime, the posse should have been under a U.S. deputy marshal. Judge Stilwell's appointment of a civilian was a slap in the face of the glad-handing sheriff.

  This was only the beginning. Johnny Behan would be knocked around quite often by the courts and the press in late January and early February. When a man identified as J. Gardner was shot and killed near San Simon, the coroner's jury issued subpoenas for two saloonkeepers. Behan and his deputies failed to deliver the summonses, and the members of the coroner's jury said in their report that they could not reach a conclusion because the sheriff "has been derelict in his duties."59

  Shortly after the Clantons left Judge Stilwell's court from their preliminary hearing on January 31, Behan came in to face charges of perjury. Sylvester B. Comstock, a local merchant, claimed Behan had falsified records and charged the county twice for the same $365 bill. Behan's lawyer, James B. Southard, first asked that the hearing be shifted to another court, stating that Judge Stilwell had shown prior prejudice against the defendant, "by having ignored the sheriff of the county in placing warrants for arrest of suspected persons in the hands of those not authorized or deputized by the sheriff to serve the same." Judge Stilwell disclaimed all prejudice, and, according to the Nugget, said "A magistrate who, having bias or prejudice in any cause, would sit upon the same would be guilty of prostituting his position." Stilwell refused the change of venue request and heard the case. The decision came quickly. Southard showed that Richard Rule, the Nugget editor and clerk of the board of supervisors, was not legally empowered to administer the oath that must be taken before an official discusses his accounts, as had been the custom since Cochise County began business. Because the bills were not processed under a legal structure, Southard argued that the case should be dismissed. The surprise argument caught the prosecution off guard, and Southard's statement could not be refuted. Judge Stilwell dismissed the case, and Behan went free on the technicality.

  The decision set off a passionate war of editorials, with the Epitaph questioning Behan's actions in office and the Nugget defending the sheriff's every move. Under a headline "Sheriff Behan Arrested on Trumped Up Charge and Honorably Discharged," the Nugget wrote: "The detestable cliques who for the past three months have scrupled at nothing in the endeavor to foment disorder and oppression to the constituted authorities of this city and county yesterday indulged in what they doubtless fondly imagined would prove a coup d'etat in their favor." The full column, which also included the story on the Clantons' surrender, appeared under the all-capitals headline "THE GENTLEMEN WIN."60

  The Epitaph wrote, "One thing is manifest to our citizens, that where a county official fails to execute the public trust reposed in him, there will not be lacking the courage to assail such want of fidelity. The handwriting on the wall should be an admonition that every lawful means will be adopted to protect the public treasury ... while the sheriff walks out of court a free man on account of this technicality, the next attempt is not likely to meet with similar success. He is not legally guilty of the crime charged, but the public will undoubtedly await his explanation of the double charges referred to in the complaint."61

  Three days before the hearing, the Epitaph had exploded its bitterest attack on Behan in an editorial defending the Earp-Jackson expedition against Cochise County's wild bunch. The commentary in the most purple of prose said Behan held warrants "in his hands against men charged with crime, who frequently parade our streets in the most unconcerned manner," and chastised the sheriff for never having solved any of the stage robberies or major crimes in the county.

  Dake and Judge Stilwell had publicly slighted the sheriff by ignoring him in the formation of the posse. A month later he would be publicly lambasted in the National Police Gazette, a publication that circulated around the nation and had several hundred issues delivered weekly to Sol Israel's Union News Depot in the lobby of the Tombstone post office, and more sent a few blocks down to Aleck Robertson's bookstore.

  The Gazette interviewed Wells, Fargo chief detective Jim Hume, who was not kind to Johnny Behan:

  Even the sheriff of the county, the detective says, is in with the cowboys and has got to be or his life would not be worth a farthing. The robbers are picked desperadoes, excellent horsemen and dead shots from Colorado and Texas. There are five brothers ... who have sworn vengeance on the outlaws. One of these is the chief of police of Tombstone, who is now confined to his house suffering from gunshot wounds inflicted by his sworn enemies.62

  The most eloquent indictment against Behan came not from the rantings of the Epitaph, but from the delicate hand of the woman who came to Tombstone expecting to write dispatches about sewing circles and community theater. Clara Brown hinted that certain officials might be "influenced by bribes or intimidated by threats so that they do not enforce the law as invested in them against violators of the peace." She continued:

  Unfortunately for the camp, there has not been a unanimity of feeling and action among the officials. Opinion is more equally divided among the people than an outside observer would deem credible. It can hardly be otherwise when the two leading daily papers, each with a large circulation and commanding a corresponding influence, take diametrically opposite views of the same subject, one being known as the "cow-boy" organ, and the other as the "stranglers."

  One would suppose that all peaceable, honest men would denounce and oppose the outlaws, for they are virtually such, but a large proportion of otherwise good citizens waste a surprising amount of sympathy on them, in the face of evidence against them which ought to be thoroughly convicting....

  With this state of public and private sentiment, the work of cleansing Cochise county of the nuisance becomes particularly difficult. If an effort is made by one side to bring to justice some transgressor, or ferret out some sort of crime, emissaries of the other party prostrate the movement by giving secret information to those in jeopardy, and otherwise assisting them to evade the law.

  The case is complicated because one cannot tell who is a 'cowboy'-their supporters deserve no better name....

  It has been reported, and quite generally believed for some time past, that Doc Holliday and the Earps, who were concerned in the homicide last autumn, would leave town if they dared to, but every high way was watched by men anxious to avenge their murdered comrades. These parties a week ago demonstrated the falsity of the rumors of their cowardice by setting out with a posse commissioned with the arrest of certain criminals in the county, a dangerous undertaking and far more so for them than for others. They were followed the same day by two parties belonging to the disturbing element, and a bloody time was anticipated. One side expresses indignation at "murderers" being allowed to "hunt down better men than they are," and the other retorts that these men are U.S. Deputy Marshals and who else should do the work? Certainly it would be no easy matter to find other men who would jeopardize their lives, and exercise the requisite bravery in "bearding the lion in his den. "63

  C
lara Brown, the finest writer to settle in Tombstone, did not need fiery adjectives or loud screeds in ink to condemn the sheriff. She made her point by commending the Earps while intimating that the cowboys paid bribes to public officials.

  Before Behan even had a chance to shrug off public controversy over his court case, something else went wrong in his life. Undersheriff and editor Harry Woods simply became Undersheriff Harry Woods. The Nugget, owned by Prescott politico Hugo Richards, was sold on February 3, and Woods was replaced as editor. No ownership details were made public, but the Nugget ran a story on the change and vowed to report without partiality toward the town's different factions. Woods's name disappeared from the top of the paper, replaced simply by "Richard Rule Editor." The Nugget remained Democratic, pro-Behan, and anti-Earp, but the tirades against the Earps disappeared, replaced by more measured editorials against vigilantism. Behan still had a supporter in the Nugget, but he no longer had an unquestioning newspaper voice.

  Tombstone must still have been abuzz over the Earps' resignation when Ike Clanton came to Judge Stilwell's court on February 2. He must have walked in a most optimistic man, anticipating acquittal and expecting his adversaries to lose their legal authority. Two days earlier, according to the Nugget, Pony Deal and Fin Clanton had faced the court on charges of assault with intent to kill Virgil Earp, but had been discharged from custody, "no evidence being adduced to warrant their being held to answer."

  When the case began against Ike, the prosecution called James W. Bennett, who testified that immediately after the shooting he found a hat, identified as belonging to Ike Clanton, in the partially burned building from which Virgil was shot. Sherm McMasters then came on the stand to testify that three days after the assassination attempt, he had overheard someone ask Clanton about the shooting. Ike replied he "would have to go back and do the job over."

  Then the defense began its parade, bringing seven witnesses, including constable George McKelvey and Jeptha B. Ayers, to the stand to testify that Ike had been in Charleston when Virgil Earp's arm was blasted into fragments. Ike said he lost his hat before the shooting and couldn't imagine how it wound up on the scene. Stilwell questioned the witnesses, then ruled the evidence inconclusive. Ike and Fin Clanton went free, "having been honorably acquitted of the charges against them," the Nugget said.

  Whether Ike actually pulled a trigger is uncertain. He could have lost his hat while scouting ambush locations, then remained behind in Charleston while others did the actual shooting. Outlaw Johnny Barnes would later tell Fred Dodge that he had fired the shot that crippled Virgil, with Pony Deal at his side. No witnesses could or would identify Ike as one of the men running from the scene. The hat was only circumstantial evidence, not enough to send a man to jail. The Earps and their supporters would continue to believe that Ike had been in the building with the other assassins.

  Wyatt Earp later said that Judge Stilwell told him, "Wyatt, you'll never clean up this crowd this way; next time you'd better leave your prisoners out in the brush where alibis don't count." These would be important words to a man who had spent so much of his life avoiding killing.65

  The trial of Ike Clanton made very clear to the Earps and their supporters that there would be little chance of ever getting a conviction against the cowboys. Any case would be met with a flood of witnesses to provide an alibi, and nothing but absolute proof would give any chance of conviction.66 In those days before fingerprinting and forensics, the only way to convict a cowboy would be to catch him committing a crime. The law-and-order advocates in Tombstone must have been most disheartened to see a smiling Ike Clanton walk out of court.

  "If by chance one or more of these robbers are arrested they have innumerable friends through whom they always do prove an alibi," a letter-writer wrote to the Tucson Citizen. "Hence they obtain their liberty regardless of what may be the evidence against them. I venture to assert that a conviction of one of these festive cowboys will never be obtained in Cachise county so long as the present state of affairs exists. I have conversed with many of the leading citizens of Tombstone, and they with one accord assert that the industries of the county are paralyzed through the lawlessness existing there."67

  Ironically, when Ike's alibi witnesses took the stand to clear their friend, they may well have been signing death warrants against a few other cowboys. But Ike had other thoughts. After one big victory, he was ready for another. He went before Justice of the Peace J. B. Smith in Contention on February 9 and again filed charges against the Earps and Doc Holliday for the murder of Billy Clanton and the McLaurys. Smith issued the standard order, "To Any Sheriff, Constable, Marshal or Policeman in the Territory of Arizona, Greetings." He then commanded the officers "to arrest the above named Wyatt Earp, Morgan Earp, Virgil Earp and J. H. Holliday and bring them forthwith before me at my office on Main Street in the Village of Contention in the County of Cochise, Territory of Arizona. 1168

  With Tom Fitch away on business, the Earps retained William Herring, a member of the Citizens Safety Committee. Ike hired J. S. Robinson and brothers Ben and Briggs Goodrich to handle the prosecution, a move that was technically legal because Robinson and Ben Goodrich had helped prosecute the original case. Behan took Wyatt, Morgan, and Doc Holliday into custody while Virgil again remained behind at the Cosmopolitan recovering from his wounds. Herring quickly filed for a writ of habeas corpus on February 11, asserting they were "illegally restrained of their liberty by John Behan, sheriff of the County of Cochise" on the order of Smith, "an alleged justice of the peace."

  Of course, the legal situation grew complex. With no district court judge present to consider the writ of habeas corpus, the duty should have fallen to T. J. Drum, the county commissioner. But Drum was automatically disqualified because he had represented Holliday back at the Spicer hearing. So the defen dants applied to Judge Lucas, arguing on two grounds: that the charge had already been examined and rejected by both Spicer and the grand jury, and that Smith did not possess the legal authority to order an arrest.

  The Epitaph railed against the new charges. "If it is a fact that this warrant has been allowed to issue without new evidence to warrant it, the code of rights that protects all alike has been violently infringed. Cleared by a lengthy examination before a magistrate and then by a grand jury, it is only in the province of another grand jury to take up the case, unless new evidence is brought forward before the issuance of a warrant. These are cold facts, and not contingent turkey."69 The Earps had not been subjected to trial, so they could be indicted again should new evidence arise. The burden would be on the prosecution to provide that new evidence during the new hearing.

  Amid the wrangling, the prosecution asked Lucas to disqualify himself because he had been a witness in the Spicer hearing back in November. Lucas determined that he should make the decision, although "it would be a pleasant task to avoid hearing the question," Lucas said at the February 13 hearing. The main argument centered on whether Smith had the authority to hold the hearing, since he had never been elected. But Ben Goodrich showed a recent act of the legislature that made appointments such as Smith's legal. Lucas determined that the Contention justice of the peace did indeed have the right to make the call for another hearing. As to the charge that the case had already been decided, Lucas said that was beyond his jurisdiction.

  Ike Clanton expected his greatest triumph in this hearing. In a letter dated February 14, he wrote Guadalupe Canyon massacre survivor Billy Byers in Leavenworth, Kansas, "I have got the Earps all in Jail, and am not going to unhitch. I have got them on the hip and am going to throw them good. 1170

  By again bringing the killings to court, Ike forced the Earps to take action. First, Wyatt and Mattie, listed as husband and wife, mortgaged their Tombstone home for $365, agreeing to pay 2 percent interest per month." This could well have been to meet legal fees necessitated by the heavy demands of court time Wyatt had been facing.

  Wyatt's friends then got together to consider the situation. Herring, Wyatt, and
his allies were convinced that this February 14 hearing in Contention was a ruse to put the Earps onto the unprotected roadway, with just Behan serving as guard, so that any ambush would kill Wyatt and put the matter beyond the reach of the courts.72 Behan asked Wyatt to surrender his arms for the ride, but Earp flatly refused and Behan did not persist. Much to Behan's surprise, twelve citizens rode up armed with Winchesters to escort Holliday and the Earps to Contention. Herring arrived in his buggy, with his 16-year-old daughter on one side and a Winchester on the other.

  Parsons recorded the incident: "Earps were taken to Contention to be tried for the killing of Clanton. Quite a posse went out. Many of Earps' friends accompanied, armed to the teeth. They came back later in the day, the good people below beseeching them to leave and try the case here."

  They arrived at Contention for the noon hearing and walked into the courtroom fully armed. Herring reportedly opened with the words: "Your honor, we come here for law, but we will fight-if we have to."73 Herring followed with his argument against the unnecessary trip from the county seat. Smith remanded them back to Tombstone, where the Contention justice of the peace would hold a hearing in a Tombstone courtroom.

  The proceeding began at ten the next morning in Tombstone, and Herring asked for the papers by which the Earps and Holliday were being held so they could fully examine the charges. Smith had left the paperwork back in Contention, and Herring demanded an immediate discharge. Smith refused, adjourning the case until the next morning. Herring quickly filed a second motion of habeas corpus with Judge Lucas, charging that the justice of the peace had failed to show them the warrants and had not ordered them bound over. Herring called Smith as a witness, and his testimony confirmed his judicial ineptness. On the technicality, the Earps were released. The prosecution immediately filed a new warrant for murder charges, issued by Justice Smith, but Lucas quickly dismissed it, writing in his decision: "The evidence (depositions) of the various witnesses is now in the possession of the District Court, and another examination would simply duplicate it, and when they have been discharged by one magistrate, and a failure to indict by one grand jury, it would seem to be unwise to enter into an examination anew at this time." He added that new evidence should be submitted before a second hearing would be called. Because the November hearing before Spicer was not a trial, Clanton and his pals had the right to continue pushing for prosecution; this technically was not double jeopardy. But they would have to come up with some new evidence of murder before the case could be considered in any courtroom outside Contention.

 

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