The trial was held on February 2. The evidence was circumstantial—Ike Clanton’s hat found on the construction site and Sherman McMaster’s testimony that he was at Charleston the night of the shooting and heard Ike say after he learned that Virgil had not been killed that he “would have to go back and do the job over.” Against this was the testimony of seven men—including George McKelvey, the constable, and J.B. Ayers, the saloonman who also apparently worked undercover for Wells, Fargo—that the Clantons had been in Charleston the night of the shooting and could not have participated in the attempt on Virgil’s life. They were acquitted.65 Wyatt always claimed that Judge Stilwell told him afterward, “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.”66
On the same day that the Clantons were arrested, Sylvester Comstock filed charges of perjury against John Behan, though the case was quickly dismissed. Sherman McMaster was also arrested by David Neagle at Wyatt Earp’s camp at Pick ’Em Up near Tombstone. He was quickly released on bail. Accused of malfeasance in office and distrusted by court officials, Sheriff Behan also found himself under seige. The legal and law enforcement situation in Cochise County was chaotic at best. Parsons noted in his diary on February 4, “People suspicious on roads. Every stranger I met mounted was cause for me to remove gauntlet so I could handle pistol freely.”67
Some had had enough. On February 3, Marshall Williams quietly left Tombstone with a lady of the evening. Later, Wells, Fargo determined that he left behind irregularities in his books.68 Also on February 3, Richard Rule replaced Harry M. Woods as editor of the Nugget. Afterward, the paper, though hardly pro-Earp, was more responsible in its views, and Sheriff Behan no longer had immunity from criticism.69 On February 6, Frederick A. Tritle, an Arizona mining man and partner of William B. Murray, one of the leaders of Tombstone’s Citizens Safety Committee, was named governor of Arizona Territory. On February 7, Lou Rickabaugh left Tombstone for San Francisco on an extended visit.70
By then something remarkable had happened. The continued criticism of the Earps finally had an effect. On February 2, the Epitaph and the Nugget published a letter of resignation signed by Wyatt and Virgil, which said in part:
[W]e realize that notwithstanding our best efforts and judgment in everything which we have been required to perform, there has arisen so much harsh criticism in relation to our operations, and such a persistent effort having been made to misrepresent and misinterpret our acts, we are led to the conclusion that, in order to convince the public that it is our sincere purpose to promote the public welfare, independent of any personal emolument or advantages to ourselves, it is our duty to place our resignations as deputy United States marshals in your hands.71
Shortly thereafter, Marshal Dake arrived in Tombstone, and after a meeting with local citizens, he appointed John H. Jackson as his deputy in Cochise County, but, curiously and significantly, he did not accept the Earps’ resignation. He, at least, had no problem with their style.72
Wyatt apparently was making some effort to change public perception of him and his motives. At the same time he resigned as a deputy U.S. marshal, Wyatt sent a message to Ike Clanton asking for a meeting to reconcile their differences and end the animosity between them. Clanton refused. The Nugget reported that “Mr. Clanton emphatically declined to hold any communication whatever with Earp.”73 Instead, on February 9 the Clantons boldly swore out warrants in Contention City for Virgil, Wyatt, and Morgan Earp and Doc Holliday for the murders of Billy Clanton and Tom and Frank McLaury. Behan took all except Virgil into custody, and once again, Doc, Wyatt, and Morgan appeared in court to account for their conduct in the Fremont Street fight. Ike wrote to Billy Byers, “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.”74
Thomas J. Fitch was out of town, so the Earps hired William Herring as their attorney. He filed for a writ of habeas corpus before T. J. Drum. Drum declined to hear the matter because he had served as Doc Holliday’s attorney during the Spicer hearing, and Judge J.H. Lucas refused to act. On February 14, a substantial party of twelve armed riders accompanied Doc, the Earps, and their attorney to Contention. There, after Herring opened with the statement, “Your honor, we come here for law, but we will fight—if we have to,” Justice of the Peace J. B. Smith wisely ordered the hearing moved to Tombstone.75 Still, people were worried. Parsons wrote:
Earps were taken to Contention to be tried for killing of Clanton. Quite a posse went out. Many of Earp’s friends armed to the teeth. They came back later in the day, the good people below beseeching them to leave and try case here. A bad time is expected again in town at any time. Earps on one side of the street with their friends and Ike Clanton and John Ringo with theirs on the other side—watching each other. Blood will surely come. Hope no innocents will be killed.76
On February 15, the case was postponed again, but this time Judge Lucas granted Doc and the Earps a writ of habeas corpus, declaring, “Whether Petititioners are guilty or not, it is apparent to any reasonable being, that an examination at this time would serve no good purpose. Unless new evidence or circumstances occur subsequent to the first examination, it would only duplicate the first hearing.”77 Lucas’s order would be the last legal action in the case; the legal process was finally over. Trouble was not over, however, a fact that was underscored that day when Ben Maynard and Dan Tipton came close to getting into a fight. The police intervened, and they were fined $30 each for carrying concealed weapons.78
Free again, Wyatt prepared to take the trail, and on February 17, he and Morgan, Doc, Sherman McMaster, Creek Johnson, Charlie Smith, Texas Jack, and perhaps one or two others rode out. The Nugget noted, “It is supposed they are acting in the capacity of U.S. Deputy Marshals, their resignations not having been accepted or their appointment revoked by U.S. Marshal Dake, as was generally supposed some time ago.”79 Outside of town the posse split up, ostensibly looking for Pony Deal, Al Tiebot, and Charles Haws, who were wanted for the January 6 robbery of the Bisbee stage. As it turned out, all three were in jail in Cisco, Texas, but the Earp posse did not return to Tombstone until February 24.80
Doc Holliday’s life had changed dramatically in the weeks since Virgil was shot. He had exchanged the smoke-filled saloons and gambling halls for the trail. At the very least, his participation in the posses suggested that his health was better than it had been. It had to have been to follow the life of a posseman as opposed to that of a gambler. After the Earp posse returned to Tombstone, Doc returned to the gambling tables temporarily, and by March 10, Clara Brown wrote, “There being a lull in cowboy criminality (which we hope is something more than temporary) and the Indians apparently having left the Dragoons, Tombstone people have been obliged to look to other causes for excitement.”81 One was a smallpox scare, and there were fires. But hopes that the Earp-Clanton troubles were over were about to be shattered.
On the evening of March 17, Wyatt saw activities that concerned him. The following day, he met Briggs Goodrich, one of the attorneys favored by the Cow-Boys, on the street and stopped him for information and advice. “I think they were after us last night,” Wyatt said. “Do you know anything about it?”
“No,” Goodrich replied.
“Do you think we’re in any danger?” Wyatt persisted.
Goodrich responded plainly that they “were liable to get it in the neck at any time.”
Earp said, “I don’t notice anybody in particular in town now—any of the crowd.”
“I think I see some strangers here that I think are after you,” Goodrich replied, adding, “By the way, John Ringo wanted me to tell you that if any fight came up between you all, that he wanted you to understand that he would have nothing to do with it; that he was going to look out for himself, and anybody else could do the same.”82
That evening, a play opened at Scheifflin Hall, billed as “2 Hours of Incessant Laughter.” Stol
en Kisses, staged by William Horace Lingard and Company, seemed a safe outing, and, despite warnings from Wyatt, Morgan Earp, Doc Holliday, and Dan Tipton attended. At the theater, Goodrich warned them, “You fellows will catch it tonight if you don’t look out.”83 After the play, Doc went to his rooms, but Morgan and Tipton walked down Fourth Street intending to go to Campbell & Hatch’s Saloon and Billiard Parlor, which had become the Earps’ headquarters since the sale of the Oriental.
At the corner of Allen Street, they met Allie Earp, Virgil’s wife, out to buy candy for her husband. Morgan inquired about Virgil, then said wistfully, “Wish he’d get better. I’d like to get away from here. Tonight.”84 Morgan escorted Allie back to the Cosmopolitan, then proceeded to Campbell & Hatch’s. At the door, he and Tipton met Bob Hatch, and Morgan challenged Hatch to a game of pool.
Inside, Hatch and Morgan found a pool table near the back door, and the pair was soon involved in a game. Tipton took a chair next to the table. Wyatt and Sherman McMaster were sitting nearby. Hatch and Morgan finished the first game and started another. Hatch leaned over the table with his back to the rear door while Morgan stood watching him line up his shot. Suddenly, there were two gunshots, and Morgan fell hard to the floor. Wyatt, Sherman, and Tipton quickly pulled him out of the line of fire, while Hatch ran through the card room and into the backyard looking for the shooters. By then the assassins had fled. Back inside, Morgan was dying. The bullet had struck him in the back to the left of his spinal column, passed through the left kidney and the liver, traveled through his body, and emerged on the right side near the gallbladder. The bullet then struck George A.B. Berry, a mining man who was warming himself by a stove near the front. A second bullet had hit the wall above Wyatt Earp’s head, proving that he too had been a target of the assassins.
Dr. William Miller ran to the scene after hearing the gunfire, and Drs. Goodfellow and Matthews soon followed. After an initial examination, Morgan was moved to the card room and laid on a lounge. When they lifted him to his feet to move him, he said, “Don’t. I can’t stand it.” Once he was laid on the lounge, he said to Hatch, “I have played my last game of pool.” With his brothers and friends around him, including Virgil, who had come to be with him from his sickbed, and Doc, who was awakened, Morgan passed his last minutes. Finally, he said, “It won’t be long. Are my legs stretched out straight, and my boots off?” Those around him assured him that they were. Then he whispered to Wyatt, “Do you know who did it?”
“Yes,” Wyatt said grimly. “And I will get them.”
“That’s all I ask,” Morgan whispered, “but don’t let them get you, brother.”85
That night the equation in the Tombstone troubles changed. The story that Doc went on a rampage, kicking in doors looking for the men he held responsible, appears to have been a fanciful, latter-day addition to the story, but, at the very least, he and Wyatt came to an unspoken agreement.86 Something had to be done. So far none of the Cow-Boys had been convicted of any criminal activity. Virgil was maimed for life, and Morgan was dead. Wyatt had never been a violent man—the street fight had been the exception in his life. But now, what Judge Stilwell had told him finally rang in his ears: “Leave your prisoners out in the brush where alibis don’t count.” It was a solution that a man reared on the antebellum Southern code of honor like Doc could appreciate, with the law seemingly impotent, and it likely took no more than a glance at Wyatt to confirm the next step. Others knew what to expect as well. Parsons wrote, “Murderers got away of course, but it was and is quite evident who committed the deed. The man was Stilwell in all probability. For two cowardly, sneaking attempts at murder, this and the shots at Virgil E when I came nearly getting a dose, rank at the head. Morg lived about forty minutes after being shot and died without a murmur. Bad times ahead now.”87
The next day was a Sunday, Wyatt’s thirty-fourth birthday, and he and a group of friends escorted Morgan’s body to Contention to be placed on the train. James Earp accompanied his brother’s remains home to his parents and to Morgan’s wife in Colton, California. Back in Tombstone, Wyatt made plans to send Virgil and his wife home to California as well. The wives of James and Wyatt were also settling their affairs. Wyatt had work to do, and he wanted no distractions. On Monday, Doc rode with Wyatt, Warren, Sherman McMaster, and Creek Johnson to escort Virgil and Allie to Benson. Hearing that Frank Stilwell had traveled toward Tucson ahead of them and that Stilwell, Clanton, and two other Cow-Boys were watching every train with the intention of killing Virgil, Wyatt decided to see his brother through to Tucson and make sure that he departed for California safely.88
Doc Holliday was the first man off the train at Tucson. Carrying two shotguns, he greeted Deputy U.S. Marshal J.W. Evans on the platform and stored the guns in the railroad station. Then, the Earp entourage walked to Porter’s Hotel facing the tracks for dinner. Afterward, Wyatt and Virgil both stopped to speak to Evans before Wyatt escorted Virgil and Allie back to the train. Doc asked one of his companions, probably Sherman McMaster, to recover the shotguns from the station. Inside the train, a passenger told Virgil that men were lying on a flatcar near the engine. Wyatt saw them, too. He recognized one as Frank Stilwell; he believed the other to be Ike Clanton. He slipped into the space between the tracks and moved toward them. When they saw him, they both ran, and Wyatt chased after them. Stilwell’s companion disappeared in the darkness, but Wyatt was intent on catching Stilwell. “I ran straight for Stilwell. It was he who killed my brother.” Eventually, Stilwell froze in his tracks. Wyatt would later recall, “What a coward he was. He couldn’t shoot when I came near him. He stood there helpless and trembling for his life. As I rushed upon him he put out his hands and clutched at my shotgun. I let go both barrels, and he stumbled down dead and mangled at my feet.”89
Doc, Warren, Sherman, and Creek caught up to Wyatt about then, and a volley of gunfire followed, riddling the body of the fallen Stilwell. Wyatt looked for Stilwell’s companion or companions (he believed Clanton and Hank Swilling were both there), but when he could not find them, he moved alongside Virgil’s train car as the train began to move out, holding up a single finger and saying, “One for Morg.”90 Stilwell’s body was not found until morning. By then, Wyatt and his companions had walked to Papago Station, where they flagged down a freight headed to Benson. Late in the afternoon of March 21, they reached Tombstone. Even before their arrival, however, they had been declared fugitives.
Stilwell’s body was proof enough that Wyatt had never intended to arrest him. George Hand, who saw Stilwell, called him “the worst shot up man I ever saw.”91 A shotgun blast had torn into his abdomen and shredded his liver. A second load of buckshot shattered his leg. A rifle slug had struck him under one armpit and traveled through both lungs to the other side. There were also gunshot wounds in his upper left arm and his right thigh. His left hand was burned, which confirmed that he had grabbed at the shotgun when Wyatt caught up to him.92 Oddly, Wyatt Earp later claimed that “Doc and I were the only ones in Tucson at the time Frank Stillwell was killed. Others remained in Benson.”93
The citizens of Tucson were outraged at such a cold-blooded killing in the Old Pueblo. The Star pointed out that Stilwell had been in town to appear in court to face stage robbery charges, and interviewed Ike Clanton. Clanton, who was in Tucson for Jerry Barton’s murder trial, claimed that he was near the depot with Stilwell to meet a witness from Charleston, which gave both men reasons for being in Tucson other than to make another attack on the Earps. Clanton said that when he saw the Earp entourage, he left at once and Stilwell “walked down the tracks between the cars and hotel.”
The Star did not hold back in its condemnation of the Earps, although the source of its “facts” was a puzzle then, as now:
In regard to the Earp party, no doubt but what they have some warm friends who are good citizens. And undoubtedly it is this fact which has given them so long suffrage in Tombstone. If one-twentieth part of what is said of their record is true, they are certainly
no desirable acquisition to any community. They are a roving band; their path is strewn with blood. Strange as it may seem, wherever they halt in a settlement stage robberies follow and human life ceases to be sacred. Their late escapades at Tombstone are only their records repeated in other frontier towns, and, if we judge the honest sense of justice and peace abiding disposition of our citizens, they will never dare another such foul murder as was committed last Monday night. If they must take human life they must seek other localities than our city. It will not be tolerated.94
Notably, the same papers that announced the death of Stilwell also reported that Jerry Barton had been acquitted, giving further substantiation to the claim of Earp partisans that the courts had never convicted any one of the Cow-Boy crowd.
While a coroner’s jury in Tucson found the Earps responsible for a brutal killing in the case of Frank Stilwell, another coroner’s jury in Tombstone was determining, indirectly, that no blow had been struck amiss at Tucson. No one in Tombstone had ever seriously doubted Stilwell’s part in Morgan Earp’s death, and on the very day that Wyatt and his companions returned to Tombstone, Maria Duarte Spence, the wife of Pete Spence, gave damning testimony concerning the plot to kill Morgan and Stilwell’s critical part in it.
Maria Spence identified Morgan Earp’s killers as Frank Stilwell, Pete Spence, a man she identified as “Freis” who was actually Frederick Bode, and two Indians, one of whom she identified simply as “Charley.” The “Indians” were identified later as Florentino Cruz and Hank Swilling. She testified, “Four days ago, while mother and myself were standing at Spence’s house, talking with Spence & the Indian who came home with him [Charley], Morgan Earp passed by, when Spence nudged the Indian and said, ‘That’s him, that’s him.’ The Indian then started down the street, & got ahead of him to get a good look at him.”
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