Q. Didn’t you say this morning that you did not see who fired the first shot?
A. I did say so.
Q. Did you say this morning there were two shots fired close together?
A. I did not.
Q. Did you say there were any shots fired at all?
A. I did.
Q. Did you say this morning that when the first two or four shots were fired you were excited and confused, and got up from the window and went into the back room?
A. I did not say how many shots were fired, for I did not know when I went into the back room.
Q. What conversation did you have with Judge Spicer, if any, with reference to your testimony to be given here since you signed your testimony this morning?
A. He asked me one or two questions in regard to seeing the difficulty, and if I saw any men hold up their hands, and if they had thrown up their hands whether I would have seen it, and I told him I thought I would have seen it [emphasis added].
Q. Did not you testify this morning that those men did not throw up there [sic] hands that you saw?
A. Yes, sir, I did.89
Borland’s testimony was potentially a mixed blessing for the defense. Her statement that Doc had approached one of the Cow-Boys, shoved a large bronze pistol into his stomach, and stepped back could be seen as a provocative act not mentioned by any other witness, but the prosecution did not pursue it, apparently because it countered their own theory of what happened. It proved important to the defense, however, because it challenged two of the primary points of the prosecution, and, as in the case of Sills, was from a nonpartisan witness.
The defense then finished by calling J.H. Lucas, the same J.H. Lucas who had earlier denied the writ of habeas corpus to Wyatt and Doc. He testified that Billy Clanton did not go down in the first fire and confirmed that two shots were fired, followed by a brief pause before the shooting became general.90 Perhaps most important, he represented the “better class” of Tombstone’s citizenry supporting the Earps. The prosecution finished with a whimper, on rebuttal providing only brief testimony by Ernest Storm, a butcher, that Tom McLaury did not get a weapon in his shop on the afternoon of the fight.91 With that, the case was submitted to Judge Spicer without argument by either party on the morning of November 29.
Justice of the Peace Wells Spicer heard the testimony against the Earps and Doc Holliday in the preliminary hearing and released them.
At two o’clock on the afternoon of November 30, 1881, Justice Spicer rendered his decision. It was a long, carefully constructed opinion. From the beginning, the prosecution had to see the way the decision would go because Justice Spicer chose to emphasize Ike Clanton’s belligerent behavior on the day of the street fight. He did note that “[i]n view of these controversies between Wyatt Earp and Ike Clanton and Thomas McLaury, and in further view of this quarrel the night before between Isaac Clanton and J. H. Holliday, I am of the opinion that the defendant, Virgil Earp, as chief of police, subsequently calling upon Wyatt Earp, and J. H. Holliday to assist him in arresting and disarming the Clantons and McLowrys—committed an injudicious and censurable act.”
If those comments gave the prosecution any hope, Spicer quickly squelched it by adding:
[A]lthough in this he acted incautiously and without due circumspection, yet when we consider the conditions of affairs incident to a frontier country; the lawlessness and disregard for human life; the existence of a law-defying element in [our] midst; the fear and feeling of insecurity that has existed; the supposed prevalence of bad, desperate and reckless men who have been a terror to the country and kept away capital and enterprise; and consider the many threats that have been made against the Earps, I can attach no criminality to his unwise act. In fact, as the result plainly proves, he needed the assistance and support of staunch and true friends, upon whose courage, coolness and fidelity he could depend, in case of an emergency.
Spicer said that he was convinced that Virgil “honestly believed” that the Clantons and the McLaurys intended to do them harm or at least to resist arrest and that his belief was “reasonable” in light of the threats made that day. What was missing, Spicer said, was any evidence of “felonious intent” on the part of the Earps. He brushed aside the notion that Tom McLaury was unarmed, saying that “if Tom McLowry was one of a party who were thus armed and were making felonious resistance to an arrest, and in the melee that followed was shot, the fact of his being unarmed, if it be a fact, could not of itself incriminate the defendants, if they were not otherwise incriminated.”
Spicer concluded that Frank McLaury and Billy Clanton did in fact resist when called on to surrender. He dismissed the claim that the fight was an effort to “assassinate” Ike Clanton to cover up their confessions to him and emphasized Sheriff Behan’s testimony that the Cow-Boys had “demurred” from surrendering their arms to him. He dismissed as “a proposition both monstrous and startling” McLaury’s demand that the “Chief of Police and his assistants should be disarmed.” There was no “criminal haste” on the part of the Earps nor “felonious intent then and there to kill and murder the deceased.” Rather, Spicer said, “[t]hey saw at once the dire necessity of giving the first shots, to save themselves from certain death!”
Accordingly, he reasoned, “I cannot resist the conclusion that the defendants were fully justified in committing these homicides—that it was a necessary act, done in the discharge of an official duty.” Spicer said that he did not believe the evidence would warrant “a conviction of the defendants by trial jury of any offense whatever.” He pointed out that the grand jury was then in session and could choose to indict, but he concluded his duties by ordering Wyatt Earp and John Holliday released.92
Spicer’s decision was legally sound, but it was not greeted with universal approval. The Tombstone Nugget immediately questioned Spicer’s motives and used innuendo rather than reason to disagree: “The remarkable document which appears in another column purports to be the reasons which actuated the judge in his final actions. 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.’”93 The Nugget’s allegations were not only unsubstantiated but also irresponsible, although they clearly reflected the street verdict of many of Tombstone’s citizens. Clara Brown captured the moment with her report that “[t]here being two strong parties in the camp, of course this verdict is satisfactory to but one of them. The other accepts it with a very bad grace and a smoldering fire exists, which is liable to burst forth at some unexpected moment.”94
The controversy, then, was not about Spicer’s legal conclusions (for all the rhetoric) but about the predisposed opinions of the factions that the street fight had brought into the open. In point of fact, Spicer’s opinion was almost inevitable, based on the evidence presented and the rigorous standard to which he was held. Territorial law required him to determine the likelihood of conviction, not to determine whether sufficient evidence existed to justify a trial. The defense made a strong case that the Earp party had acted consistent with correct police procedures. Even the question of whether Tom McLaury was armed was rendered irrelevant by the resistance of his companions. Virgil’s only legally damaging mistake was involving Doc Holliday.
Yet, the prosecution ultimately misplayed that ace. If “blame” could be placed for the failure of the prosecution, it lay in the prosecution’s own overzealous strategy, with its emphasis on premeditation (insisted on by Will McLaury, with support from Ike Clanton). The unbelievable scenario Ike presented in court, combined with the more reasonable case presented by the defense, undermined what initially appeared to be a strong case for the prosecution. Even in the court record itself, Spicer’s shift of opinion was obvious—belying any notion of prejudice one way or the other—and it followed Clanton’s self-destruction and the introduction of nonpartisan witnesses by the defense who supported the more plausible testimony of Wyatt an
d Virgil Earp.
At that moment, however, legal analysis was not the standard. The same angry emotion that characterized Will McLaury’s letters to his family combined with politics to cause at least some of the population to believe the worst about Spicer as well as about the Earps and Doc Holliday. Something peculiar had happened in the hearing that swung opinion against the Earps, and Doc was at the center of it. Before the hearing, the Earps had reputations as effective law enforcement officers. Even the Nugget had commended them without any hint of wrongdoing on their part. So, too, the Tucson Star had made Cow-Boy depredations a point of editorial emphasis. The Earps might have been perceived as cold, no-nonsense, and clannish, but they stood clearly for law and order in the public mind.
Stripped of all the rationalizations, postfight justifications, and prevarications, the most famous gunfight in the history of the Old West was a bloody miscalculation that neither side really wanted but that both sides believed the other side wanted. The Spicer hearing provided no evidence that the Clantons and the McLaurys came to Tombstone for the purpose of goading the Earps into a fight. In fact, the Cow-Boys most likely were about to leave town before Behan delayed their departure. Still, Ike’s threats did produce a situation that Virgil Earp, as chief of police, could not ignore. Neither was there any evidence that the Earps went to the vacant lot on Fremont Street to gun down the Cow-Boys. They simply had no motive for doing something so damaging to their own interests.
The Fremont Street fiasco was a testament to the costs of braggadocio, miscommunication, and rumor. Although Virgil and his brothers felt fully justified and were supported in that view by Judge Spicer, the Cow-Boys saw themselves as victims, and the townsfolk both oversimplified and complicated what had happened until what really happened on the vacant lot off Fremont Street on October 26, 1881, scarcely mattered at all. Instead, the bloody miscalculations of that afternoon were filtered through preconceptions of what or who was right or wrong, based on personal, economic, and political animosities, and those prejudices shaped the next phase of the Cow-Boy war and finally made the Earps and Doc Holliday central players in it.
Doc’s participation in the fight also did more than anything to cause a shift in public opinion toward the Earps after the shootings. The prosecution’s attempt to place the blame on him for firing the first shot, although discredited in court, was believed by many. Doc’s public confrontation with Ike Clanton the night before, his feud with Milt Joyce, and Kate’s accusations about the murders of Bud Philpott and Peter Roerig and the attempted holdup of the Benson stage gave him a bad reputation even among many of the Earps’ friends. Believing the worst about him in the fight provided the easiest explanation for what happened.
The one blemish on the Earps in Tombstone before the street fight was their association with Doc Holliday. And initially that seemed to be the focus of the prosecution in the Spicer hearing. It was the view summarized by Ridgely Tilden, a freelance journalist who worked for the Nugget for a time, in the San Francisco Examiner after the decision. He said, “Doc Holliday is responsible for all the killing, etc, in connection with what is known as the Earp-Clanton imbroglio in Arizona. He kicked up the fight, and Wyatt Earp and his brothers ‘stood in’ with him, on the score of gratitude. Everyone in Tombstone conversant with the circumstances deprecates the killing of the McLaurys and Clanton.” What people could not find was justification for the deaths on October 26, and Doc’s unsavory reputation seemed to provide the logical explanation. That is why John P. Clum, a staunch friend and supporter of the Earps, would write later in his life, “I have always believed that if he [Holliday] had not been in that street battle on Dec. [Oct.] 26, 1881, the affair would have been relieved of much of its bitterness.”95
Of course, that conclusion made the Earps guilty of bad judgment, anger, and personal animosity, not premeditated murder. It did not make them the murderers Will McLaury saw in his grief. The hearing gave Ike Clanton a forum for accusing the Earps of being involved in stage robberies, “piping off” Wells, Fargo shipments, and planning murders to hide their misdeeds. These allegations were wild and unsupported and would have been dismantled in a full-blown trial, but they provided fodder for those who opposed the Earps and tarnished their reputations among the citizenry. Will McLaury bought Ike’s story, with all its embellishments, because it fit his perceptions of the defendants. He wrote his brother-in-law:
The cause of the murder was this [:] sometimes ago Holliday one of the murderers attempted to rob the express of Wells Fargo & Co. and in so doing shot and killed a stage driver and a passenger and the other parties engaged in the murder with him….[T]he Earp brothers were interested in the attempt at the Exp—robbery and young Clanton who was killed, a boy 18 years old knew the facts about the attempted robbery and had told his brother J.I. Clanton and Thos and Robt and they had got up facts intending to prossecute [sic] him (Holliday) and the Earp Bros. and Holliday had information of it. It is now known that two other men who knew of the murder in the attempted robbery have since then been killed in Mexico, the report was by “Greasers” but at the time they were killed Holliday was out of town “said to be visiting in Georgia” there will be an indictment agst Holliday and I think two of the Earps and one Williams for the murders in the attempted robbery [emphasis in original].96
Things did not happen the way McLaury hoped, but his response to Ike’s story was an interesting precursor to the public response to Ike’s testimony. Ike did not succeed in getting his adversaries convicted of murder, but he did raise questions about their character and conduct while providing an alternative view of his “arrangement” with Wyatt Earp that took him off the hook with his Cow-Boy associates. Doc and the Earps won their freedom in Spicer’s court, as they should have, but, ironically, Ike Clanton, the braggart most responsible for the Fremont Street tragedy, succeeded in planting doubts about the Earps in the public mind that doomed their future in Tombstone.
Chapter 8
VENGEANCE
The Earps and a desperado named Doc Holliday are running things with a high hand at Tombstone, Arizona.
—Albuquerque Morning Journal, January 31, 1882
After Judge Wells Spicer’s decision was rendered, someone in Tombstone wrote a letter to John Henry Holliday’s father, Henry Holliday, in Valdosta, Georgia, about what had transpired. According to the Valdosta Times:
He received a letter signed by a large number of citizens of Tombstone entirely exonerating John from the charge of willful murder. He also received a copy of the Tombstone Epitaph in which a long decision, delivered by the local Judge in the committment [sic] trial, was published, exonerating and discharging Holliday and the Earps. We have read it, and from the summary of evidence given there is no other conclusion to arrive at than that Holliday, with the Earps, was acting in self-defense, while performing the duties of the positions they held.1
Things were not so plain in Tombstone, however. On December 1, George W. Parsons noted in his diary, “Earps released today or yesterday. Grand jury may indict but I doubt it. Fights in both saloons opp[osite] and underneath last night. Quite a circus about one a.m.”2 Doc may have been involved in one of the episodes, because on December 3, 1881, the Nugget reported that he had been arrested for firing a pistol.3 The details of the incident escaped the record, but given the temper of the time, it could have been an inconsequential moment, resulting from celebration of his renewed freedom, or it could have been the result of an altercation over some remark about the outcome of the hearing. After that trouble, though, John Henry became less public.
William R. McLaury was still in town, hoping for a grand jury miracle, but the Nugget was not optimistic, noting that “from the confessed and known bias of a number of its members, it is not probable that an indictment will be found.”4 On December 16, the grand jury confirmed the Nugget’s prophecy and shattered McLaury’s hopes of a legal solution to his bitterness and anger. He lingered in Tombstone, working to settle his brothers’ affairs and nur
sing his rage. Rumors were rampant of Cow-Boy retaliation. Will McLaury had warned back in November that “in the event they escape by any trick or otherwise then if you read the papers there will be more ‘Press dispatches.’”5 Later, after his sister cautioned him “to leave it to God” to punish the killers of Tom and Frank, he had responded:
Now when these men are dead by one means or another and there [sic] friends who aided them are dead all of which may occur soon then I will go home perhaps.…
I think their only hope is in escape and should they escape from Jail their bones will bleach on the mountains.…
I am trying to punish these men through the courts of the country first if that fails—then we may submit.6
It was not just talk. Mrs. J.C. Collier, a visitor in Tombstone who had witnessed the street fight herself, wrote an account of her experiences in Arizona for the Kansas City Star. She reported one threatened raid on the Oriental Saloon:
The night before we left, the cowboys had organized a raid on the saloon. Fifteen or twenty cowboys heavily armed were in the saloon. Just on the edge of the town were thirty more and others scattered around the town ready to jump in the fight at the signal. A fire broke out and so rustled them that they gave it up for a time. You see we became intimately acquainted with a gentleman who boarded at the same hotel 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.”7
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