The divided state of society in Tombstone is illustrated by this funeral. While there are many people of the highest order sojourning here, whose business is honorable and whose voices are always heard on the side of law and order, there yet remains a large element of unscrupulous personages, some outwardly regardless of restraining influences, and others (more than one would suspect) secretly in sympathy with the "cowboys," acting in collusion with them. Even the officers of the law have not escaped the stigma of shielding these outlaws, some of them being believed to have accepted bribes to insure their silence. One must not judge the whole by a part, but it is undeniable that Cochise county started out upon its career hampered by a set of officials which might be improved; and doubtless will at the next election.
Opinion is pretty fairly divided as to the justification of the killing. You may meet one man who will support the Earps, and declare that no other course was possible to save their own lives, and the next man is just as likely to assert that there was no occasion whatever for bloodshed, and that this will be "a warm place" for the Earps hereafter.41
The mighty turnout for the funeral did not go without notice in San Francisco, where businessmen wanted a Tombstone district safe for investment. The Exchange sarcastically wrote: "Having laid out three cowboys in their gore and rid themselves of about as worthless specimens of manhood as civilization could boast, the people of Tombstone evidently resolved, like Buck Fanshaw, that as a tribute to their 'land' they would give the victims a 'first-class sendoff to the grave."' The reference was to the Mark Twain story "Buck Fanshaw's Funeral. "42
A collective case of the jitters engulfed Tombstone: As Parsons said, townsmen feared retaliation from the cowboys and were caught in the passion of the moment. They also knew that such events would be bad for business. The story circulated that during the gunfight a potential investor from the East had simply been passing through the streets when a bullet cut through his pants. He left town on the morning stage, with the comment that the town was too warm for timid capital.43 Nobody in Tombstone much liked the idea of losing a potential cash flow. Clara Brown added, "He left for home on the next train, and will probably convey the impression that the notorious camp is a den of cut throats, when in reality, a man had not been shot for many months prior to this tragedy."44
The news went out around the nation, distorted and mangled through the magic of telegraph wires. In San Diego, one report credited the "Carp brothers" with pulling the triggers, in Yuma a "Billy Clinton" took the bullet, and back in Nashua, New Hampshire, the locals were told the whole thing happened in "Madstone." And much would be mad in Tombstone for weeks to come.
Immediately after the shooting, newspaper reports showed little doubt the cowboys had at least prompted the fight. The Nugget, without attribution, wrote that Frank McLaury "made a motion to draw his revolver, when Wyatt Earp pulled his and shot him, the ball striking the right side of his abdomen." The Epitaph provided a more conclusive story, quoting Ruben F. Coleman, the mining man, who claimed to be an eyewitness from beginning to end. Coleman said that as soon as Virgil commanded the cowboys to give up their arms, "There was some reply made by Frank McLaury, but at the same moment there were two shots fired simultaneously by Doc Holliday and Frank McLaury." If the cowboys had even motioned toward their guns, there would be little question of the Earps' justification. There seemed little question, at least for a few days.
The coroners' inquest began on October 28 with a surprise. Sheriff Johnny Behan told the eight-man panel that Billy Clanton had yelled out, "Don't shoot me, I don't want to fight." Behan continued by saying that Tom McLaury had screamed, "I have got nothing," and threw open his coat to show he was unarmed as the shooting began. The sheriff was satisfied that Tom McLaury was unarmed. Behan was saying, in effect, that his political rivals, the Earps, had committed murder. For the first time, Tombstone grew aware there may have been more to this than law enforcement against thieves and rustlers.
Ike Clanton testified that his party had been on their way out of town, simply stopping for a couple of essential errands before following the Earps' dictum to depart. He said when the Earps arrived at the vacant lot, "Frank McLaury and Billy Clanton threw up [their hands]; Tom McLaury threw open his coat and said he had nothing; they said you sons of bitches came here to make a fight. At the same instant Doc Holliday and Morgan Earp shot.... All of us threw up our hands, except Tom McLaury, who threw open his coat saying he had nothing."45 Ike said the Earps opened fire while the innocents were standing with their arms in the air.
Interestingly, Ike Clanton also said that he had had trouble previously with the Earps, an apparent reference to the deal gone awry to turn over Leonard, Head, and Crane. "There was nothing between the Earps and the boys that were killed. The Earps and myself had a transaction which made them down on me; they don't like me."46 Billy Claiborne supported Ike's statements, agreeing that the three men had their hands in the air and saying Morgan Earp and Doc Holliday fired the first shots. The Earps and Holliday were not called to testify in the coroner's hearing, apparently because they could be implicated in murder charges.
Coleman, the Epitaph's star interviewee, told a different story. He no longer claimed to have seen the initial blasts. "I thought I was too close, and as I turned around I heard two shots, then the firing became general." But Coleman continued to embroider the story, prompting the Nugget to editorialize, "One never realizes what a great blessing memory is, or the wonderful power it is capable of, or the extent and acuteness of eyesight, until they read the testimony given at a coroners inquest, then the illustration would be sublime, were it not so often ridiculous. At the inquest yesterday one witness said on some points, and they were of particular importance, his 'mind was cloudy,' but it was so remarkably clear as to other details, that no doubt our readers will join with us in forgiving him this unfortunate and certainly unexpected omission of memory." The Nugget chided Coleman for knowing that Holliday had been grazed either on the hip or on his scabbard. "This when the ball didn't hit his hip, and he had no scabbard on, but in this case good eyesight saw through Holliday's heavy ulster and saw the ball strike the hip that was fartherest from him." Coleman, the eyewitness, had not proven a good witness at all.47
Patrick Henry Fellehy provided the biggest shock of the second day when he testified he had seen the beginning of the meeting between Behan and Virgil Earp and overheard Virgil say, "Those men have made their threats. I will not arrest them but will kill them on sight." This remarkable statement virtually accused the Earps of committing premeditated murder. Strange as it seemed, Behan had not recalled the crucial statement a day earlier in his testimony.
Nine men who testified on October 28 and 29 told of seeing the Earps pistolwhip Ike Clanton and Tom McLaury; they portrayed the Earps as provoking a fight, then sending off the first shots against two unarmed men and two others with their arms in the air. There were conflicts in the testimony, but even Behan supported the view that the Earps had unnecessarily killed three men.
When Coroner Henry M. Matthews made his report, the conclusion was simple. "William Clanton, Frank and Thomas McLaury, came to their deaths in the town of Tombstone on October 26, 1881, from the effects of pistol and gunshot wounds inflicted by Virgil Earp, Morgan Earp, Wyatt Earp and one -Holliday, commonly called 'Doc' Holliday."
No determination was made whether the marshal had acted in the line of duty or whether the Earps should be brought up on charges. Yet enough controversy arose that the city council unceremoniously suspended Virgil as police chief on October 29 pending investigation of the shooting, and ordered that Jim Flynn serve in his place.
On October 30, the Nugget sarcastically responded to the coroner's decision under the headline "Glad to Know": "The people of this community are deeply indebted to the twelve [actually eight] intelligent men who composed the coroners jury for the valuable information that the three persons who were killed last Wednesday were shot. Some thirty or forty shots were fired, and the
whole affair was witnessed by probably a dozen people, and we have a faint recollection of hearing someone say the dead men were shot, but people are liable to be mistaken and the verdict reassures us. We might have thought they had been struck by lightning or stung to death by hornets."
The next day, diarist Parsons, an avowed law-and-order sort, ran into Wyatt Earp at the Cosmopolitan Hotel. "[Wyatt] took me in to see Virgil. He's getting along well. Morgan too. Looks bad for them all thus far." Parsons, again, proved prescient.
"I THINK WE CAN
HANG THEM"
JUST DAYS AFTER NEWSPAPERS throughout the West had celebrated their heroism, Ike Clanton filed murder charges against the Earps and Holliday, and they went from acclaimed to accused. Oddly, Behan did not make the charge himself, which would have carried far more weight than the claims of a cowboy troublemaker. Morgan and Virgil, still recovering, were not served. Wyatt and Holliday were brought before Justice of the Peace Wells Spicer, who "denied bail as a matter of right, but upon a showing of facts by affidavits, bail was granted and fixed at the sum of $10,000 each."'
The money came quickly, far more than Wyatt Earp needed to post bail. Wells, Fargo secret agent Fred Dodge contributed $500, James Earp threw in $2,500, and Wyatt Earp contributed $7,000 to the $14,500 that eight men raised for Holliday. Wyatt himself drew a grand total of $27,000 from ten contributors. The largest contribution, $10,000, came from Tom Fitch, the attorney who would stand for the defense when Wyatt Earp went before the court. Spicer's duty was to determine whether sufficient evidence existed to bring the Earps and Holliday before the grand jury on murder charges. This was a preliminary hearing, not a murder trial. For the next month, Tombstone became engrossed in the court battle, complete with dramatic testimony, surprise witnesses, and strange interruptions. Tom Fitch, for the defense, proved very able in the role.
Fitch, 43, had an interesting background. He had worked as a newspaper reporter in Wisconsin, California, and Nevada and served in the California legislature. He had been a delegate to the Nevada statehood convention, had made friends with Mark Twain, and was elected to Congress. In the 1870s Fitch moved to Utah and managed criminal and civil litigation for the Mormon Church, then went to San Francisco before winding up in Arizona in 1877, where he served in the territorial legislature. He was an accomplished orator and had delivered the town's Fourth of July address. Also on the defense team was T. J. Drum, representing Holliday, and the firm of Howard & Street.
Fitch, with his political prestige and courtroom polish, faced off against able opponents. District Attorney Lyttleton Price served as prosecuting attorney in an unusual situation. He had only officially taken over the office weeks earlier, after the prolonged confusion over his appointment. Clum and other Republicans had been strong in their support of Marshal Virgil Earp and his "deputies," and Republican Price risked infuriating his own political supporters with a controversial case that it was his duty to prosecute. The Lod Angeles Herald said unnamed friends of the deceased had raised $10,000 to help run the prosecution, which led to the addition of several lawyers, most notably Ben Goodrich, a native Texan and former Confederate officer who neither drank nor gambled and who had already built a reputation by defending several cowboys. The firms of Colby & Smith; Smith, Earll, Campbell & Robinson; and J. M. Murphy filled out the prosecution team.
A decision by Virgil Earp, still the U.S. deputy marshal, on the first day of November drew much scorn from his townsmen. He telegraphed General Orlando Willcox at Fort Huachuca to send a company of cavalry to Tombstone to protect the town from a cowboy invasion. Willcox referred the matter to Acting Governor Gosper and ordered the cavalry into readiness to move if the order came. Gosper said the order could come only from the president. Tombstone supervisor Milt Joyce, visiting Prescott, wired Behan to learn if a threat of trouble existed. "No trouble, everything peaceable," Behan responded, and no troops were sent. The Nugget lampooned the Earps for this call for martial law.2
When the hearing before Judge Wells Spicer finally began, Billy Allen and then Behan were the first to take the stand for the prosecution on November 1 and 2, 1881, telling of how the Earps had not saved the town from outlaws, but instead had committed murder.
Allen testified that after meeting with Billy Clanton and Tom McLaury in the saloon, he followed the Earps on their march down Fremont Street to face off against the cowboys. Allen said he heard someone from the Earp party yell, "You sons of bitches, you have been looking for a fight" at the same time that Virgil threw up his hands. Allen described what followed: "Tom McLaury threw his coat open and said, 'I ain't got no arms.' He caught hold of the lapels of his coat and threw it open. William Clanton said, 'I do not want to fight' and held his hands out in front of him. He had nothing in his hands when he held them in this position," Allen said, showing the motion. "I did not notice what Frank McLaury did. I did not notice him or Ike. Just as William Clanton said, 'I do not want to fight,' and Tom McLaury threw open his coat and said, 'I ain't got no arms,' the firing commenced by the Earp party."3
Allen testified he believed Holliday fired the first shot and that the second blast also came from the Earp party, while Billy Clanton had his hands in the air. The defense dug into Allen, trying to damage his credibility. They asked about an indictment in Colorado for larceny, which the court refused to allow, and Allen left the stand.
Behan came to tell his story on November 2, explaining how he had attempted to prevent the gunfight by trying to stop the Earps, only to have them brush past him. He said he heard one of the Earps, he thought Wyatt, yell, "You sons of bitches," and another say, "Throw up your hands."
"I saw a nickel-plated pistol pointed at one of the Clanton party-I think Billy Clanton-my impression at the time was that Holliday had the nickelplated pistol. I will not say for certain that Holliday had it," Behan said. "These pistols I speak of were in the hands of the Earp party. When the order was given 'Throw up your hands,' I heard Billy Clanton say, 'Don't shoot me, I don't want to fight.' Tom McLaury at the same time threw open his coat and said, 'I have nothing' or 'I am not armed.'. .. I can't tell the position of Billy Clanton's hands at the time he said, 'I don't want to fight.' My attention was directed just at that moment to the nickel-plated pistol, the nickel-plated pistol was the first to fire, and another followed instantly. These two shots were not from the same pistol. The nickel-plated pistol was fired by the second man from the right. The second shot came from the third man from the right. The fight became general. Two or three shots were fired very rapidly after the first shot, by whom I do not know. The first two shots were fired by the Earp party. I could not say by whom." Behan said he thought the next three shots also came from the Earps, and he believed the nickel-plated pistol went off immediately when Virgil yelled for the cowboys to throw up their hands. The sheriff never said he was certain Doc Holliday had started the gunfight, but he left a strong implication that the drunken, dangerous dentist began firing while Virgil tried to make the arrest.4
In the midst of Behan's testimony, a few side dramas became part of the main show. The defense had tried to keep details of the trial from being reported in the newspapers. "This is made necessary from the fact that there is great excitement here, but it is hoped no further trouble will occur," the San Francisco Morning Call reported on November 2. "Friends of the deceased are determined to prosecute the case to the bitter end in the courts. It will be a long and tedious case, and if it goes to the District Court, a change of venue will have to be taken and the case tried elsewhere as so much feeling is manifest on both sides here." Gag order or no gag order, the industrious Nugget ran a detailed story from the first day of the hearing, much to the dismay of the defense. Fitch relented and asked Spicer to remove the order, "as it appeared impossible to curtail the enterprise of the press."5 Spicer removed the order in time for Behan's testimony to appear in both papers.
The echo of Behan's testimony was heard throughout the West. The Earps, hailed in many newspapers as heroes, we
re suddenly being portrayed as murderers by a respected and well-liked sheriff whose word should be believed. The Arizona Star took the lead in editorializing against the Earps, thundering on November 3:
It now appears, after the smoke of the Tombstone bloody street affray has passed away, that but one side of the tale had been told. It is claimed by many that the killing of the McLowrys [sic] and Clanton was cold blooded and premeditated murder with little or no justification.
It appears the parties who did the killing were hostile in feeling to those who fell before the bullet, and that threats had been made, and when the shooting occurred the boys who were killed were preparing to leave Tombstone; two of them were unarmed and that they showed no disposition whatever to quarrel or create a public disturbance. If this be so, then those who committed the tragedy, under the color of the law, should be classed as public offenders and as such be punished to the fullest extent of the law. It makes no matter what the character of the parties killed, they were entitled to protection. As long as no offense or an attempt at breaking the law was made, there was no warrant for officers of the law committing a breach of the peace.... 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.6
Wyatt Earp: The Life Behind the Legend Page 23
