There will be an indictment against Holliday and I think two of the Earps for the stagecoach murders and attempted robbery, and they will be hanged one day for murdering Tom and Frank and young Clanton. Even after he was mortally wounded and lying on the ground, Frank raised on his elbow and fired several shots wounding three of the murderers. Two of the scoundrels are hurt badly, but Wyatt Earp and Holliday walk the streets heavily armed. They have cowed those who might testify against them. The town’s people are in Sympathy with us but only ranchmen dare come forward to give any information in court.
I will see to it that Holliday and Earp are jailed lest important witnesses Isaac Clanton and William Claiborne be killed before they can tell the truth of this in court. The men who killed Tom and Frank will be punished. I regard it my Duty to see that these brutes do not go unwhipped by Justice. I will join the prosecution and I think I can hang them. I could put an end to this myself, with a knife or a gun. I cannot afford to do it nor can I conspire at it, but this thing has aroused all the Devil that is in me.
W. R. McLaury
OUT ON BAIL during the preliminary hearing, Wyatt Earp felt like a caged bear in a carnival: half-feared, half-pitied. There were stares and catcalls whenever he left the hotel room he shared with Josie. Most days he spoke only with Tom Fitch. Sometimes he went to visit Virg and Morgan. He wasn’t exactly welcome when he did. Like Kate Harony, Lou and Allie suspected that Wyatt was to blame for what happened and they weren’t wrong, though they couldn’t have said exactly how—not yet.
Now it was all going to be made public, and he needed Morgan’s help.
“I’m sorry, Lou,” he said, standing on their veranda. “I gotta talk to him.”
“Wyatt, can it wait? He’s not feeling well—”
“I’m awake,” Morg called. “C’mon in, Wyatt.”
Lou left them alone. Wyatt stood in the bedroom door for a moment, a sheaf of paper in his hand, trying not to let his surprise show. It had only been a few days since he’d looked in, but the change in Morgan was startling.
“I know,” Morg said. “I look like hell.” Thin-faced, unshaven, feverish. “At least I’m not as skinny as Doc yet.”
It was an attempt at humor. Wyatt tried to smile.
“They’re gonna have to cut again,” Morg told him wearily. “Some of that goddam shirt is still inside somewheres. Sit down. How’s the hearing going?”
“Good, I guess. Fitch is tying them up in knots, objecting all the time, just to throw everybody. He’s letting the prosecution witnesses talk, but then he compares that to what they said at the inquest. The stories keep changing, so he keeps asking questions until they say, ‘I don’t know’ or ‘I guess I was wrong about that part.’” Wyatt held up the papers in his hand. “Morg, when the prosecution’s finished, Fitch is gonna call on me. I’m supposed to read all this in court.”
“Jesus,” Morgan said. “That’s a lot.”
“That’s what I told him. Fitch says it’ll help if we have one story. Not dozens, like the other side. He wrote it up, but I have to read it.”
“Lemme see.”
Morg had to keep his elbow down on the bed so he wouldn’t move his shoulder, and he had to hold the papers up in his hand, trying not to move his head much because that pulled on his shoulders, too. Every now and then, as he read, he’d stop to ask a question, like “Why’d you hit Tommy McLaury that morning?”
“Doesn’t matter anymore.”
“He say anything about Lou? Goddammit, I told him—!”
“No! No. It was just . . . The McLaurys had been listening to Ike. One of them repeated something behind my back, and I was tired of the guff. I hit the nearest. Might’ve been Frank who said it, but I guess I hit Tom. Hard to tell ’em apart.”
“Yeah,” Morg said. “Same as us, I guess.”
He went back to reading, but about halfway through he started to frown, and when he was done, he looked troubled. “Wyatt, this ain’t how I remember it. I told Fitch it was Doc who— He was standing behind me, see? When he cocked the shotgun, I thought he saw somebody make a move, so I—”
“Shut up!”
Morg blinked.
“Morgan,” Wyatt said carefully, “the way you remember it could get you hanged.”
There was a long silence.
“I don’t know, Wyatt,” Morg said finally. He let the papers drop to his lap and laid his head back against the pillows. “I don’t know. I gotta think about this.”
BUT WYATT DIDN’T HAVE TIME for Morgan to think. He had to learn the whole piece by heart. He had to sound convincing. The story had to be specific, logical, and complete, Fitch said. Otherwise, this thing could go to trial, and if it did, Morgan would pay the price for Wyatt’s mistakes.
Reading printed stuff was hard, but this was in Fitch’s handwriting, with curlicues and flourishes and what all. Knowing that the task was beyond him, he left Morg’s house and went back to his room at the Cosmopolitan, ignoring the jeers and hard looks. Who else could help, if not Morgan? Doc was hardly speaking to him. Virgil and James had always made fun of him for not being able to read very well, but if they understood how important this was—
He opened the door to his hotel room. Josie was in bed.
With a book.
He hated to admit any kind of weakness, especially to her, but when he stammered it out, she didn’t sneer or mock him or act shocked or anything.
“Lots of people have trouble reading. Maybe you just need spectacles. Oh, Wyatt, you’d look so distinguished in spectacles!” she cried.
He thought his heart would burst, though he didn’t quite know why. “I’m pretty sure my eyes are fine.”
“Well, we’ll take you to an optometrist when this is all over, just to make sure. In the meantime? This’ll be just like learning a piece for the theater.”
She rewrote the pages so they were printed plainly, underlining important words or writing them big, so he could keep track of where he was in the story. “You have such a good memory!” she’d say when he got a stretch of words down pat. She believed he could do this. She believed every word in the statement. She believed in him.
Once, he tried to tell her the truth, but she waved his scruples off.
“Oh, Wyatt, it’s not lying. It’s just making the story a little simpler. You have to make it easy for people to understand.”
It was almost more than he could bear, but he kept on. Morgan’s life was at stake.
CUT DOWN THROUGH THEIR OWN RECKLESS FOLLY
JUDGE WELLS SPICER SPENT THE WHOLE OF NOVEMBER 1881 discovering things to admire about William McLaury and Tom Fitch.
Both attorneys were formidable in their own ways. Given the great Tom Fitch’s decades of experience and national reputation, Spicer had expected the older man to triumph easily, but William McLaury brought energy and surprising legal agility to the proceedings. It was like watching a Texas longhorn in a contest with a good stock horse. The outcome was not inevitable. Sometimes the longhorn won.
The hearing went on far longer than anticipated. Twenty-one days in session. Thirty witnesses. Documents. Depositions. Objections, motions, rulings. McLaury held his own at first, but his was a Sisyphean task. Ike Clanton was the boulder he had to push up the hill, and that rock just kept rolling back down on him. Under Tom Fitch’s gentle, curious, persistent questioning, Ike changed his story repeatedly, each new version less convincing than the one before.
Even if Ike hadn’t been such a sad spectacle in the witness stand, his testimony was all but irrelevant. To constitute the crime of murder, there must not only be a killing but felonious intent. That was the sole legal issue in this hearing.
Was there bad blood between Wyatt Earp and Ike Clanton? Yes. Was there an argument between Doc Holliday and Ike Clanton the evening before the gunfight? Yes. Had there been an altercation between Wyatt Earp and Thomas McLaury on the morning of the gunfight? Yes. None of it mattered. When the attorneys for both sides had said and done all they could,
felonious intent—and nothing else—was what Wells Spicer had to rule on.
Of course, the community would expect the judge to address the events preceding the gunfight and he did so at the very beginning of his finding. “Given the events of the preceding night,” he wrote,
I am of the opinion that Chief of Police Virgil Earp committed an injudicious and censurable act when he called upon Wyatt Earp and John H. Holliday to assist him in arresting and disarming William Claiborne, the Clantons, and the McLaurys. Yet I can attach no criminality to his unwise decision. When we consider the lawlessness and disregard for human life on the frontier; the existence of a law-defying element in our midst; the fear and feeling of insecurity in our city; the violent men who have been a terror to Cochise County, keeping capital and enterprise away from our city; and when we consider the many deadly threats publicly made against the Earps and Holliday, we can understand that in this emergency Chief Earp needed the assistance and support of staunch men whose courage, coolness, and fidelity he could depend on.
So. Granted: Virgil chose his deputies unwisely, but there was nothing felonious in that.
It is clear in my mind as well that Chief Earp honestly believed that when the Clantons and McLaurys and Claiborne passed through the O.K. Corral to Fremont Street, their purpose was not peaceful. The prosecution holds that their intent was to leave town; nevertheless, it has been established during this hearing that it was reasonable for Chief Earp to believe that they intended to resist any attempt to arrest or disarm them, and that they intended to attack the police. Many citizens had reported threats to him. They publicly insisted that Chief Earp perform his duty to arrest and disarm the Cow Boys, as they termed Claiborne, the Clantons, and McLaurys.
And that was of the essence.
Should Virgil Earp have abandoned his clear duty as an officer because its performance was likely to be fraught with danger? Or, was it not his sworn duty to the law-abiding citizens of this city, who looked to him to preserve order and security, to arrest and disarm those men? There can be but one answer, and that answer divests the defendants—both regular and specially appointed officers—of a presumption of malice or illegality.
When those officers marched down Fremont Street to the scene of the subsequent homicide, they were going where it was their duty to go; they were doing what it was their duty to do; they were armed, as it was their right to be armed, when approaching men they had reasonable cause to believe were both armed and contemplating resistance.
So much for felonious intent, but what of the facts regarding the Cow Boys?
It is beyond doubt that William Clanton and Frank McLaury were armed and made such quick and effective use of their guns as to seriously wound Morgan and Virgil Earp and lightly wound John Holliday.
There remains a dispute as to whether Thomas McLaury was armed at all, except for the Winchester rifle that was on the horse beside him. I will not consider this question, as it is not of controlling importance. It is beyond doubt that the Clantons and McLaurys had among them at least two six-shooters in hand, other pistols holstered, and two Winchester rifles on their horses. Thomas McLaury was with a party making felonious resistance to arrest. In the melee that followed, he was killed. The fact of his being unarmed initially cannot itself incriminate the defendants.
He could have run away, Wells Spicer thought. Ike Clanton and Willie Claiborne did, and they lived.
The prosecution claims that the deceased were shot while holding up their hands in obedience to the command of the chief of police, but the inquest found that William Clanton was wounded along the length of his right wrist. Witnesses testify that he fired his pistol thereafter with his left. The trajectory of his initial wound is compatible with a man aiming a pistol, not holding his hand in the air. Similarly, the wound to Thomas McLaury’s right chest, below his right arm, could not have been received with his hands on his coat lapels demonstrating that he was unarmed, as claimed by the prosecution. His wound is consistent with testimony that he was reaching over a horse for a rifle when he was fatally wounded.
Who started it? That’s what everyone would want him to decide, but that had no bearing on whether these three homicides were murder.
I cannot say which party fired first. Some witnesses testify that each of the deceased yielded to a demand to surrender. Other witnesses of equal credibility testify that William Clanton and Frank McLaury met the demand for surrender by partially drawing their pistols. All witnesses agree that the initial discharge of the firearms from both sides was almost simultaneous. As the defendants were police officers charged with the duty of arresting and disarming men who had previously declared their intention not to be arrested or disarmed, they had the right and duty to meet force with force, under the statutes of the Territory of Arizona.
Which left only Ike Clanton to deal with.
The testimony of Isaac Clanton that this tragedy resulted from a scheme by the Earps and Holliday to assassinate him in order to silence him about their robbery of the Kinnear stagecoach . . .
Spicer paused, searching for the proper phrasing.
. . . falls short of credibility. If the purpose of the confrontation was to kill him, he would have been the first to fall. Mr. Clanton was not injured at all. His claim to be unarmed was believed by Wyatt Earp in the heat of the gunfight; he was allowed to run away unharmed by Wyatt Earp, the very man Mr. Clanton says conspired to kill him.
Beneath a mountain of words, there was but one conclusion, and Wells Spicer now reached it with little hesitation.
There being no sufficient cause to believe the defendants guilty of felonious intent to murder, I order them to be released.
He reread the decision and then signed his name with a flourish.
Wells Spicer, Magistrate, Arizona Territory. November 30, 1881.
FOR GENERATIONS, the McLaury family would remember that the Earps and Holliday were exonerated on Sarah Caroline’s wedding day. They had all hoped for a different outcome, of course, but Ike Clanton’s pathetic performance on the stand undermined those of more reliable witnesses, whose own testimony was partial and contradictory, leaving Will with no effective rebuttal to what Tom Fitch established under questioning.
That much Will himself could accept. What galled him was the dismissive, insulting phrase: “not of controlling importance.”
Tommy wasn’t armed, but that cut no ice with Judge Spicer! No, the police were just doing their jobs. Tommy was in the wrong place at the wrong time. Too bad for him! Too bad for his family. Being unarmed and killed by the police is not of controlling importance.
It ate at Will, that awful phrase.
It ate at Johnny Ringo, too. “Your brothers’ blood cries out to me from the ground,” Ringo would whisper, his voice silken, his eyes glazed by drink as they sat in the back of a shadowy saloon. “You have to make them pay.”
“Eye for eye,” Ike would say over and over. “Tooth for tooth.”
But William McLaury was a lawyer, loath to give up on the justice system. There remained a slender hope that he could get a grand jury to review the testimony and come to a different conclusion. He also had his brothers’ affairs to settle, a task that became more distressing as it progressed, for everyone in Tombstone was now chiseling away at the McLaurys’ estates. The undertakers wanted $280 for the funeral they’d given Frank and Tom, which seemed a lavish fee for stacking the boys, one above the other, in a single grave with one wooden marker for the pair of them. The valuation of the boys’ land, farm equipment, and livestock came in far lower than anticipated, and Will suspected the assessor had friends who wanted to buy it up cheap. A lumber mill in the Huachucas presented an unpaid bill and while working through Tommy’s books to confirm the purchase, Will found out that the boys weren’t in business together at the time of their deaths. That opened up some troubling questions about Frank’s livelihood, especially when several Cow Boys claimed that Frank had owed them money for “cattle transactions.” And despite their seeming
friendship to Will during the hearing, neither Ike Clanton nor Johnny Ringo would forgive debts they said Frank owed them. They had no paper to back their claims but after a month in Ringo’s dead-eyed company, Will wasn’t eager to engage in a dispute with either of them, in or out of court.
His expenses in Tombstone mounted. Bills were piling up back in Fort Worth. He had no income from his languishing practice, but he soldiered on in the cold and blustery weather of early December, growing more downhearted as the dark days passed. He came to dread the mail, for there was often a sweet and wrenching message from little John, begging his daddy to come home, but in the end, deliverance came in a letter from his older sister Margaret, whose son had recently graduated from law school.
Let your nephew Charlie take over the estate work, Margaret wrote. Go home to your children, Will. We have lost our dear brothers and you have lost your dear Wife but your babies have lost their sweet Mother and I know they yearn now for their Father to comfort them. Go to the children, William. Do not leave them longer in the care of Strangers. Let Providence work its will in the rest of these affairs.
IT HAD BEEN A YEAR to test anyone’s trust in Providence, but when Charlie arrived, shortly before Christmas, Will packed his bags.
Three drunk and sullen men saw him off the day he left Tombstone. Ike Clanton, Johnny Ringo, and a friend of theirs who’d just gotten out of jail. Frank Stilwell, his name was.
Epitaph Page 39
