Will McLaury was himself a lawyer, and he was quickly unhappy with the prosecution’s style and approach. After sitting through the end of Fitch’s cross-examination and Price’s redirect of Behan and the testimony of Martha J. King, who testified that one of the Earps had said “let them have it” as they passed the Union Market, McLaury approached Price about having Doc and Wyatt remanded to jail. King’s testimony appeared to give evidence of premeditation, and he was incensed that Price and the other attorneys for the prosecution would not support him in the matter. McLaury saw their reason as fear, writing that none of the attorneys would seek to have bail revoked, “and would not permit me to do so and said they did not want to get me killed and to prevent me from making this motion refused to support me if I made it.”71 McLaury was determined, however.
William R. McLaury, brother of Tom and Frank McLaury, was a lawyer from Fort Worth, Texas, who arrived in Tombstone after his brothers’ deaths determined to convict the Earps and Doc Holliday of murder. He played a significant role in the strategy of the prosecution in the hearing before Wells Spicer and threatened more severe action after the charges were dismissed.
On November 7, West Fuller took the stand to support the prosecution’s case that the Clantons and the McLaurys attempted to surrender. The court adjourned for lunch, and when the proceedings reconvened at one o’clock, McLaury surprised the defendants and their lawyers by moving “that the defendants be remanded to the custody of the Sheriff without bail.” After some haggling, Justice Spicer ruled that when “the proof became evident and the presumption great” that the defendants were guilty, then the court was “bound” to remand the defendants to custody. Fitch demanded that they be allowed to make application for bail, but for the moment, Doc and Wyatt were again in the custody of Sheriff Behan. Spicer’s decision was important because it could be interpreted as an indicator that the prosecution’s case was making points with him.72
On cross-examination, Fitch caught Fuller in some confusion on several points and asked him specifically who fired first, eliciting the response “Morgan Earp and Doc Holliday.” Then he finished off his questions with the following exchange:
Q. What are your feelings toward the defendant, Holliday?
A. We have always been friendly.
Q. Are you so now?
A. Yes sir.
Q. Did you not on the 5th day of November, 1881, about 5 o’clock in the afternoon in front of the Oriental saloon, in Tombstone, say to, or in the presence of Wyatt Earp, that you knew nothing in your testimony that would hurt the Earps, but that you intended to cinch Holliday, or words to that effect?
A. I told Wyatt Earp I thought Holliday was the cause of the fight. I don’t think I used the words that I would cinch Holliday. I will not be positive.73
That night, Doc and Wyatt were returned to jail. A “strong guard” was placed around the jail, although there was some dispute about who they were. Some claimed that Harry Woods placed the guards there at Behan’s instructions, but acting governor Gosper said that the vigilantes were there to prevent harm from coming to the defendants. Heavily armed guards remained in place around the jail throughout Doc and Wyatt’s incarceration. In some respects, that night marked the low point in the proceedings for the defendants. In the meantime, McLaury was exultant. By his account, he spent the evening shaking hands with supporters.74
When Billy Claiborne took the stand the following morning, he summarized the prosecution’s case:
When they got to the corner of Fly’s building they had their six-shooters in their hands, and Marshal Earp says, “You sons of bitches, you have been looking for a fight and you can have it.” Marshal Earp says, “Throw up your hands;” Billy Clanton threw up his hands, Ike Clanton threw up his, Frank McLowry threw up his and the shooting commenced. At this time, Tom McLowry was standing holding open his coat by each side with his hands on the lappels [sic] and said, “I have nothing,” or “I am disarmed;” the shooting commenced in an instant right then by Doc Holliday and Morg Earp; the shots fired by Earp and Holliday were so close together that I could hardly distinguish them; I saw them shoot; Doc Holliday shot at Tom McLowry, and Morg Earp shot at Billy Clanton; when Doc Holliday fired Tom McLowry staggered backwards; Billy Clanton fell up against the corner of the house and laid himself down on the ground; Frank McLowry had hold of a horse about the corner at a post; Ike Clanton when I saw him was dodging and trying to get away; well, there were about six or eight shots fired by the Earp party in rapid succession; Billy Clanton was lying on the ground and drew his six-shooter, rested across his arm and commenced firing; Frank, at that time, was out in the middle of the street with his six-shooter; I did not see Frank pull his pistol; I saw it in his hand. Frank did not have a six-shooter in his hand until after six or eight shots had been fired by the Earp party.75
Claiborne also insisted that Doc Holliday had a nickel-plated pistol in his hands when the Earp party arrived on the scene and that he fired his first shot from that pistol.
On the surface, Billy Allen, Sheriff Behan, West Fuller, and Billy Claiborne had provided a cohesive prosecution case that was plausible enough to raise doubts and cause some to rethink their position on the case. The Tucson Star said, “It is to be hoped that every means within the power of man will be used to reach the bottom of the whole affair, and if the Marshal’s posse were doing their duty, let them not only be set free but commended. But if under color of authority, they wreaked their vengeance on these victims, as set forth, then let the law claim its due, no matter what the consequences.”76 Even the San Francisco Examiner observed, “Public feeling which at first was for the Earps and Holliday, seems to have taken a turn, and now nearly all the people of Tombstone condemn the murderers.”77 Will McLaury exulted, “I think I can hang them.”78
Doc Holliday took an active role in the hearing. He was reported taking notes and consulting with attorneys during the sessions. Incarceration could not have been helpful to his consumption, and while he was in jail another personal problem developed. John Ringo checked into the Grand Hotel on the same day that Doc and Wyatt were remanded to jail. He played no role in the Spicer hearing, but he did provide comfort for Kate Elder, who was stuck in Tombstone (by her own account) because of a lack of funds. Loyalty did not seem to be an issue with her, as she herself explained:
I kept close to my room at Mrs. Fly’s during the Earp-Holliday trial. … Ringo had come to town and visited me at Fly’s twice. The second time he advised me to return to Globe, but I told him I did not have enough money to do so as Doc had lost all my money, about $75.00, playing faro while we were at the Tucson Fiesta. He said the Clantons were watching for Doc to come to the room and intended to get him there.
“If you haven’t enough money to go,” he said, “here is fifty dollars.” So I left that evening.79
Other witnesses followed, but when Ike Clanton took the stand on November 9, Fitch and the defense saw an opportunity to draw attention back to the causes of the street fight, through a review of both the events of the night of October 25 and the morning of October 26, and the arrangement between Wyatt and Ike that lay at the root of the matter. As expected, on direct examination Ike confirmed the scenario set forth by Allen, Behan, Fuller, and Claiborne. He, too, claimed that Doc and Morgan fired first. He also portrayed himself as a victim of the Earps’ malice and cast himself in a somewhat more gallant role in the fight itself than even his friends had portrayed.80 He claimed that he struggled with Wyatt Earp to keep him from firing at his brother and that he left the scene under fire himself. When he had finished his direct examination, Spicer postponed cross-examination “to accommodate one of the counsel for the defense.” With that, other witnesses appeared for the prosecution.81
On November 12, Fitch began his cross-examination of Ike Clanton. He eased into his questions, reviewing the events between his confrontation with Doc on the evening of October 25 and the street fight, seeking to establish the pattern of Clanton’s threats. He also
tried to question him about an earlier conversation between Clanton, Frank McLaury, and William Daley about threats against the Earps, but Spicer did not allow it. Fitch then asked if Clanton had not said within the past two months that “‘They,’ meaning the Earps, ‘are in our way any way, and will have to be got out,’ or words of similar import?” The prosecution objected, and the defense did not press the question.
Next, Fitch subtly introduced the question of Ike’s agreement to sell out the Benson stage robbers by presenting him with a copy of the Wells, Fargo telegram to Marshall Williams agreeing to pay rewards for William Leonard, Harry Head, and Jim Crane, dead or alive. Clanton denied ever having seen it. After establishing that Clanton knew the three outlaws, Fitch asked him whether Wyatt Earp had approached him, Frank McLaury, and Joe Hill in an effort to get them to help him to capture Leonard, Head, and Crane. This was potentially explosive material. Clanton dodged this by claiming that Earp said that he “would either have to kill them or else leave the country.” He claimed that Wyatt confessed to him that he and Morgan “had piped off to Wm. Leonard and Doc Holliday the money that was going off on the stage…and he was afraid some of them would be caught and would squeal on him.”
Fitch pressed Clanton on the matter, and he continued to deny any kind of deal with Wyatt Earp while insisting that Earp wanted to kill the outlaws to protect himself. He further denied that he had accused Wyatt of “giving him away” to Marshall Williams and Doc Holliday. On redirect, the prosecution tried to return the focus to the events of October 26, but on recross, the defense quickly slipped back to the arrangement between Wyatt and Clanton. Clanton claimed that Doc had confessed to him that he was involved in the Benson stage robbery and stated that Doc, Morgan, and Bill Leonard had all separately admitted to him that Doc had killed Bud Philpott. Under Fitch’s questioning he went further, insisting that Wyatt, Virgil, and Morgan had all admitted to him at various times that they were involved in “piping off” Wells, Fargo money and hoped to kill Leonard, Head, and Crane to prevent them from revealing the Earps’ illegal activities. Ike claimed that he feared for his life and used these alleged conversations to provide the motive for a premeditated attack on him, his brother, and the McLaurys at the vacant lot off Fremont Street.82
Why all the Earps and Doc Holliday would confess to Ike Clanton was not clear, and Fitch went after him relentlessly, belittling his claims and effectively punching holes in his testimony, and concluded by asking, “Did anybody else beside Doc Holliday, Wyatt Earp, Virgil Earp, Morgan Earp, or any one of them confess to you that they were confederates in stopping the stage and murdering Bud Philpot [sic]?” The prosecution objected. The defense asked, “Did not James Earp, a brother of Virgil, Morgan, and Wyatt, also confess to you that he was [a] murderer and stage robber?” The defense objected again, but the point was made. Believing Ike Clanton required believing that Doc Holliday and the three Earp brothers had all confided damning, incriminating information about themselves to Ike Clanton. The skillful cross-examination had laid important groundwork for the Earp-Holliday defense, which would focus on Wyatt’s deal with Ike as a causal factor in the street fight. At the same time, Ike had succeeded in raising questions in the public mind about the Earps and their troublesome friend, Doc Holliday, that were unlikely to go away whatever the outcome of the hearing.
Wyatt Earp took the stand on November 16, prepared to read a written statement in his own defense. After some haggling, Justice Spicer ruled that reading the statement was acceptable under Arizona statute.83 Wyatt reviewed the history of his relationship with the Clantons and the McLaurys, beginning with the incident of the stolen mules at the McLaury ranch. He then reconstructed the details of his arrangement with Ike Clanton, Frank McLaury, and Joe Hill concerning the Benson stage robbers. He said that later Clanton and McLaury claimed that he had given them away to Marshall Williams and Doc Holliday, “and when they came to town they shunned me, Morgan, Virgil, and Doc Holliday, and we began to hear of their threats against us.” Wyatt took particular care to acknowledge the nature of his relationship with Doc, stating, “I am a friend of Doc Holliday because when I was City Marshal of Dodge City, Kansas, he came to my rescue and saved my life when I was surrounded by desperadoes.”
Wyatt carefully recounted incidents in which the Clantons and the McLaurys made intimidating remarks to the Earps, and he listed the names of people who warned the Earps about additional threats—Farmer Daley, Ed Byrnes, Old Man Winter, Charlie Smith, and others. All of this was critical to his recounting of the events of October 25 and 26, because it provided the context of those events. It was in this frame of reference that he said:
I believe I would have been legally and morally justifiable in shooting any of them on sight, but I did not do so, nor attempt to do so; I sought no advantage when I went, as Deputy Marshal, to help to disarm and arrest them; I went as a part of my duty and under the direction of my brothers, the marshals; I did not intend to fight unless it became necessary in self-defense or in the rightful performance of official duty; when Billy Clanton and Frank McLowry drew their pistols, I knew it was a fight for life and I drew and fired in defense of my own life and the lives of my brothers and Doc Holliday.84
It was an effective opening of the defense case, despite the criticism of Wyatt’s use of a written statement. The defense team built on the history of Cow-Boy threats that Wyatt provided and emphasized Ike Clanton’s provocations in the hours before the street fight. This approach enabled the fight to be cast as a justifiable police action against men who chose to resist arrest. Wyatt’s admission that he fired the first shot in response to Frank McLaury’s move for his gun called into question the prosecution’s premise that Doc opened the fight with a shot from his nickel-plated pistol, and the witnesses who followed hammered away at the prosecution’s case by documenting Cow-Boy threats and Wyatt’s version of the way the fight opened.85
Virgil Earp’s testimony affirmed the defense’s case, and the prosecution had little impact on cross-examination. The most stunning testimony came after Virgil stepped down, when H.F. Sills, the Santa Fe Railroad engineer on leave who had warned the Earps about Cow-Boy threats the day of the fight, took the stand and essentially affirmed the defense case through the eyes of a nonpartisan stranger. Sills’s testimony was powerful in its impact, opening the way for the defense to detail the threats against the Earps that had come earlier on the day of the fight and virtually demolishing the idea that the Cow-Boys had thrown up their hands at Virgil’s command.86 After Sills’s testimony, the defense moved that Doc and Wyatt be released on bail. Spicer agreed in the sum of $20,000 each, and two prominent mining men, E.B. Gage and J.M. Vizina, immediately pledged the funds.87 The case had definitely taken a turn in favor of the defense.
Doc Holliday was not called to testify. He likely would have been a good witness. As containment man for the Earps in the fight, he was in the best position of any of the Earp party to see what happened in the fight, and he certainly was involved in the preparation of the defense’s case. He was bright and savvy enough to have handled himself well on the stand; he could have even submitted a written statement as Wyatt had. The defense never explained why Doc was not called. Practically, he would have added little to what Wyatt and Virgil had said, but he would have provided the prosecution opportunity to exploit his unsavory reputation and raise questions about his previous brushes with the law in Tombstone. Since the prosecution’s case focused on Doc’s role in precipitating the fight, the defense wisely chose not to put him on the stand. The risks outweighed the advantages.
One of the most important moments of the hearing occurred when Winfield Scott Williams, the assistant district attorney who had been present during the conversation between Sheriff Behan and Virgil Earp at Virgil’s home following the fight, affirmed Virgil’s version of the conversation and directly contradicted Behan’s. He even said that Behan had agreed that Virgil had called on the Cow-Boys to throw up their hands and that Frank McLaury had drawn
his pistol in response.88
Fitch brought more witnesses to the provocations of the Cow-Boys, then had one more surprise. On November 27, Addie Borland, a dressmaker who lived across the street from Fly’s, took the stand. Her account was succinct:
I saw five men opposite my house, on the afternoon of October 26, leaning against the small house west of Fly’s, and one of them holding a horse; the man with the horse was standing outside. I supposed these five to be cow-boys. I saw four men coming down the street toward them. A man in a long coat walked up to the man with the horse and put a pistol to his stomach, and then the man with the coat stepped back about three feet. I was sitting in my house at the window when I saw this. Then shooting commenced in a very few seconds after this. I don’t know which party fired first; it was impossible to tell. I was looking at both parties, but no one in particular. I did not know the man with the long coat at the time of the shooting. [Witness points out Doc Holliday as the man with the long coat on.]
Q. Did you notice what kind of a weapon he had in his hand?
A. It was a very large pistol, a dark bronze.
Q. Was it a nickel-plated pistol?
A. It was not a nickel-plated pistol.
Q. Did you see, at the time of the approach of the party on Fremont Street any of the cow-boys throw up their hands?
A. I did not.
Borland said that after the first flurry of gunfire, she got up and went into her back room. Curiously, the prosecution did not cross-examine her. Borland’s testimony was not entirely a blessing for the defense, but it established two critical points: first, that Doc Holliday was not holding a nickel-plated pistol at the beginning of the fight, and, second, that the Cow-Boys did not raise their hands. One of the most curious events of the hearing occurred during the lunch break when Justice Spicer called on Borland to ask her further questions and took it upon himself to recall her to the stand that afternoon. The prosecution objected, but Spicer did not rule against himself. She reiterated that she did not see anyone raise his hands. Perhaps her most power-ful statement came during the prosecution’s further cross-examination granted by Spicer:
Doc Holliday Page 26