The same Star that had been editorializing for months that the army should be turned loose on a murderous crusade against the cowboys now called for a complete investigation of cowboy killings. Once the blood flows, the tough talk withers.
The controversy continued to grow. A letter from Tombstone dated November 1 appeared in the Star accusing the papers of making "patriots out of murderers, and the voiceless tongues of the murdered boys cannot deny the libel which brands them as thieves, ruffians and rowmakers."
True they dealt in and handled cattle instead of handling cards. They may have bought stolen cattle, and under their reputations were able to dispose of the same publicly in our markets.
Even admit that these boys were thieves that it was their occupation to steal cattle, yet this fact does not justify, and cannot justify in the light of recent public sentiment, the foul murder which our papers seem to commend. Admit the worst that can be said of these boys as proven facts, and they stand in Angel robes of innocence as compared with the cut-throat who shot Tom McLowry [eic] with buckshot while he was protesting that he was unarmed.'
Johnny Behan's words began to turn public opinion against the Earps. The sheriff's testimony portrayed a far different gunfight than had been first reported in the local papers, and the letter-writers waxed poetic about the poor boys who never deserved to die. A gun battle takes on a far different connotation in ink than in lead.
Behan returned to the stand for two days of cross-examination and redirect, entrenching his position. He said he had thoroughly examined Ike Clanton and was certain he had no weapon, and that he was convinced Tom McLaury was unarmed, although his search was not so complete. "I was satisfied that Ike Clanton and Tom McLaury had no arms," he said.8
The defense tried hard to shake the nickel-plated-pistol story. The lawyers asked, if Holliday had the shotgun, where did the pistol come from? Behan did not know, he just stuck to his version. If Behan wanted to discredit the Earps, Holliday made a much more vulnerable target than the city marshal or Wyatt. The prosecution's key witnesses-Allen, Claiborne, Behan, and Ike Clantonwould all make it appear that Holliday had been first to pull the trigger with his nickel-plated pistol, though none could explain how he could have been holding the shotgun at the same time.
Lawyers Fitch and Drum attempted to break the sheriff's testimony, asking Behan if he and Allen had met to compare testimony, or whether Behan had promised to contribute to the fund to pay the prosecution attorneys. Behan coolly denied both charges. The sheriff also denied he had told one of the Flys he was the only witness to the shooting. He said the McLaurys and Billy Clanton were not troublemakers, and that Ike's problems were not all that serious.
In his testimony, Behan made a statement that seemed trivial at the time, but nearly three weeks later would become one of the turning points of the hearing. He told his version of the post-shootout visit to Virgil Earp's home: "I went down that evening and when I got in the house, Virgil Earp said, 'You better go slow, Behan, and not push this matter too far.' I told him I did not come there to have any words -that I intended to do my duty as an officer. Then he said he heard I tried to get the vigilance committee to hang them. I told him I did nothing of the kind, that I never called for them. He said about the same thing that Wyatt Earp did, about me deceiving them or throwing them off. This is when I explained to him about stopping him and telling them to stop. In the conversation he told me he was my friend. I told him I had always been his friend. That seemed to settle the matter about the vigilance committee. I suppose I told him that I heard him say, 'Throw up your hands.' I never told him I heard McLaury say anything or that I saw him draw a pistol. I never said that they did right."9
Behan reconstructed the failed agreement that would have made Wyatt Earp undersheriff. By Behan's version, the deal fell apart because of that December ride to Charleston when Earp intimidated the Clantons into returning his stolen racehorse. Behan said Ike Clanton had told him the situation came near a war. Behan never explained why this would have any impact on making Earp undersheriff, though the implication was that Earp had interfered with delivery of a subpoena. Nor did Behan allude to the backroom deal that put him in office or the likely deal that landed Harry Woods the job as undersheriff. Ironically, it was District Attorney Lyttleton Price who had exposed the questionable deals in a letter to the Epitaph.
When Behan left the stand, the advantage definitely rested with the prosecution. Newspapers picked up the change in sentiment, and the San Francisco Examiner reported on November 7: "The trial of the Earps and Doc Holliday for the killing of the cowboys is progressing slowly.... 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."
The Arizona Star wrote: "The killing of the McLowrys [sic] and Clanton at Tombstone seems more dastardly day by day as the evidence is brought before the public. What justifiable excuse can be raised to explain the killing is hard to surmise. It is to be hoped, however, for the sake of the good reputation of our neighbor that the absence of malice and premeditation upon the part of the slayers may at least be established." 10
On the night of November 3, before Behan had finished his testimony, the stage arrived carrying a most important passenger. William R. McLaury, a lawyer from Fort Worth, came to look into the death of his brothers. He was immediately admitted as associate counsel for the prosecution and spent three weeks sitting in the same courtroom as Wyatt Earp and Doc Holliday. Iowareared Will McLaury was considered a "radical" Republican in Texas, a term used in the post-Civil War era to indicate supporters of the Union's reconstruction programs. In heavily Democratic Texas, he struggled financially before gaining acceptance by going into partnership with former Confederate officer S. P. Greene. McLaury came to Tombstone on a vendetta. His dead brothers 11 were very dear to me, and would have walked through fire for me," he wrote back to brother-in-law David D. Appelgate in Iowa. McLaury spent his days in court and his evenings in the saloons, winning support among the townsmen and defaming the Earps. He bought into the whole cowboy story of his brothers being shamelessly murdered and stood drinks to the bar loungers who regaled him with tales about what fine fellows Tom and Frank McLaury were. "I find that with the exception of about thirty or forty men here whose business is gambling and stealing among whom are the Earp brothers and one J. H. Holliday, my brothers were universally esteemed as Honorable, Peaceable, and Brave citizens never having been charged nor suspected of having committed any offense," he wrote to Appelgate.1
McLaury arrived as a brother in grief. Many townsmen sympathized with him and appreciated his buying them drinks. He wrote that $1,600 had been stolen from Tom's body, and that his two brothers had sold their cattle and had been packing up to leave the area before the fight. There is no confirmation of this, and not even the dead brothers' friends made the assertion. "I can only say it was as cold-blooded and foul a murder as has been recorded," McLaury wrote to Greene. "My brothers had no quarrel nor interest in any quarrel with these men."12
Will McLaury was a man wronged, and he came to Tombstone to preserve the family honor. "This thing has a tendency to arouse all the devil there is in me-it will not bring my brothers back to prosecute these men but I regard it as my duty to myself and family to see that these brutes do not go unwhipped of justice," he wrote to his law partner, Greene. "... I think I can hang the m.1113
Will McLaury joined the prosecution for the examination of Martha King and Thomas Keefe, minor witnesses who helped set the scene. West Fuller took the stand on Monday, November 7, giving his profession as jeweler. He added to and supported the story already told by Behan and Allen:
"Billy Clanton threw up his hands and said, 'Don't shoot me, I don't want to fight.' At the same time the shooting commenced.... The Earp party fired the first shot; two shots were fired right away; they were almost together; I think they were both pistol shots. Both parties then commenced firing rapidly.... When Billy Clanton fi
rst drew his pistol, about six or seven shots had been fired by the Earps and Holliday. Billy Clanton was shot through the right wrist. At the time I saw Frank McLaury draw his pistol, his appearance and his action indicated he was shot. He was staggering and dizzy." Fuller said Morgan Earp and Holliday fired the first two shots, though he could not tell if Holliday fired a pistol or a shotgun.
The defense tried to shake Fuller. They asked if he had been talking to a woman named Mattie Webb when the shooting started, suggesting he had not actually seen the battle begin. Fuller answered simply, "No. I was not." Fuller admitted he had been "drinking considerable" the night before the gunfight, but he had not been imbibing on the fatal day. The most questionable admission came on the final defense queries. First Fuller stated his feelings toward Holliday. "We have always been good friends, and are so now." The defense then asked: "Did you not, on November 5, 1881, at about 5 o'clock P.M. 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 of like import or effect?" Fuller answered, "I told Wyatt Earp that I thought Holliday was the cause of the fight. I don't say positively I might have used words, 'I mean to cinch Holliday,' but I don't think I did."la
Fuller's testimony injured the Earps' case. Prosecution attorneys moved that Wyatt Earp and Doc Holliday be remanded to jail without bail, saying the evidence appeared conclusive. The defense argued that bail had already been granted, so the freedom of Wyatt Earp and Doc Holliday could not be denied until evidence was completed. Spicer ruled he had jurisdiction at all times to decide on bail, "according as the evidence showed the guilt or innocence of the offenses charged ... Judge Spicer being convinced that the evidence already adduced was sufficient to hold them on the charge of murder," the San Francisco Chronicle reported on November 8. The jailing and reports made clear that the prosecution had already produced enough evidence to force the Earps and Holliday to stand trial for murder.
Fitch and his team received a writ of habeas corpus from the probate court and appeared before Judge John Henry Lucas. After legal argument, their petition was denied. Sheriff Johnny Behan took Wyatt Earp and Holliday to his jail.
Will McLaury wrote that he played the key role in getting the Earps jailed. He said Wyatt and Doc came into the room heavily armed, and the district attorney "was completely cowed" by the sight. He said Price had promised to jail the Earps, but the fearful prosecuting attorneys did not want to risk the defendants' wrath. McLaury went ahead with the motion. "I did not think they ... would make a move and did not fear them. The fact is I only hoped they would as I ... thought I could kill them both before they could get a start." Once he made his motion, he wrote, "they were quiet as lambs, only looking a little scared."15 "Instead of making a fight when I made the motion, these men sat and trembled and whenever I go near them I can see it makes them nervous -I think we can hang them. I shall do my duty to that end."16 Earp and Holliday were in jail, "but ... this don't bring back my dead brothers.... Last night, after it was known the murderers were in jail, the hotel was a perfect jam until nearly morning, everybody wanted to see me and shake my hand." They nearly shook my hands off. Witnesses were there plenty."18
Putting Wyatt and Doc in jail meant more to McLaury than mere revenge. He wrote that prosecution witnesses had reason to be frightened because the defendants still walked the streets heavily armed. "We fear some of our most important witnesses will be killed by the friends of these brutes. There is [die] two Earp brothers who were not engaged in the murder."19 McLaury also noticed what had become obvious-and he had been part of the process. Many Tombstone townsmen had turned on the Earps, believing the prosecution story of murdered innocents with their hands in the air. The same citizens who once cried out for law and order didn't much like the sight of a bloody killing in the street with murky undertones. McLaury said as much when he wrote to Appelgate: "I had little support from the people when I came here. I now have the whole camp with the exception of a few gamblers."Z°
Holding Wyatt and Doc in custody posed an immediate problem. Behan feared Earp supporters would try to break the now-defamed hero out of jail, and he took appropriate action. "By the direction of Sheriff Behan, Under Sheriff Woods placed a strong guard around the jail to prevent any attempt being made by either side to interfere with the officers of the law," the Chronicle reported. "To-night the town is quiet and no trouble is anticipated, as the citizens are determined that the law shall take its course and justice be done both the living and the dead. Virgil Earp, City Marshal, and his brother, Morgan Earp, who were engaged in the shooting, are still confined to their rooms from the effects of wounds received during the fight, but are reported to be slowly recovering. It is not known when they will be brought into court to stand trial." Acting Governor Gosper would later write that the guardians around the jail were not there by direction of Behan-they were members of the committee of safety watching closely to prevent cowboys from breaking in to kill Earp and Holliday.21.
The prosecution case grew stronger when Billy Claiborne took the stand and said the two Clantons had their hands in the air and Tom McLaury was opening his coat to show he was unarmed when the shooting started. "About six or eight shots were fired rapidly by the Earp party, counting the first two shots. Billy Clanton, while lying on the ground, jerked his six-shooter and sitting up fired across his knee," Claiborne testified. He remained consistent in crossexamination and repeated that the Earp party fired the first six shots, saying Holliday fired first and Morgan Earp second.
The defense tried to shake him, asking him about the killing of James Hickey, of which he had been accused, but the question was ruled inadmissible. The defense asked whether he was out of sight in Fly's boardinghouse at the time the shooting began; he insisted he remained long enough to hear the first sixteen or eighteen shots. Again the defense suggested he had coordinated stories with Behan, and Claiborne flatly denied such a claim. The defense asked how he happened to be called Billy the Kid, and Claiborne said it was simply because he was so young when he started riding with the cattle herds, with no claim to emulating another Billy in New Mexico. The Kid came off as the innocent. The prosecution held the hot hand this first week of November, and Will McLaury's hope of a hanging seemed a step closer.
By the time Ike Clanton stepped to the witness stand on November 9, the prosecution had already built an impressive case. Fuller, Allen, Claiborne, and Behan had testified that Tom McLaury was unarmed, that Billy Clanton had his hands in the air, and that neither of the McLaurys was a troublemaker. They portrayed Ike Clanton and Tom McLaury as being unjustly bullied and beaten by the vengeful Earps on the day of the gunfight. With Wyatt and Doc in jail, there were those who feared that Behan might allow a kidnapping. However, Behan was far too wise for that sort of ploy. He had the chance to dispose of the Earps by legal means. Unless someone quickly rode to the rescue, Wyatt Earp might end his life in the noose of a hangman's rope.
The man who did the most to save Earp was none other than Ike Clanton, who stepped to the witness stand and presented a tale so contradictory, so permeated with evasions and fabrications, that his credibility was virtually nil.
Ike held up fine during the direct examination, repeating the story of the abuses he had suffered from Holliday and the Earps the night before the battle and the next day in court when Morgan Earp offered him his gun and asked where he wanted to fight. Ike reiterated that Holliday and Morgan Earp had fired the first two shots, with the next barrage coming from the Earp party, Virgil then Wyatt, before the cowboys had time to draw their weapons.
Clanton told a heroic story of trying to push Wyatt out of the fight. "He shoved his pistol against my belly, and said 'Throw up your hands,' and said, 'You son of a bitch, you can have a fight.' I turned on my heel and took Wyatt Earp a hold of his hand and pistol with my left hand and grabbed him around the shoulder with my right hand and held him for a few seconds. While
I was holding him he shot. I pushed him around the photograph gallery door [actually Fly's boardinghouse] and jumped into the photograph gallery door. I went right on through the hall and out the back way. I then went on across Allen Street and into the dance hall on that street. As I was leaving and as I jumped into the door of the photograph gallery, I heard one or two bullets pass right by my head. As I passed through an opening on my way from the gallery I heard another bullet pass me."22
He testified he was simply on his way to retrieve his team so he could peaceably leave town, unarmed and inoffensive. The final question from the prosecution had been simple: Had you, at the time you state that Doc Holliday charged you with having threatened the Earps, ever in fact threatened the Earps or Doc Holliday? "No sir," Ike answered. "I had never threatened any of the Earps nor Holliday."
When he stepped down on November 10, he gave all appearances of innocence; seemingly the grieving brother wronged by spiteful killers. Crossexamination was delayed a day at the request of the defense; then Ike had his own problem, asking to be excused for a day because of "neuralgia of the head," the Nugget reported. Period medical books describe the condition as a severe pain in the front of the head, near the eyes. The common neuralgia treatment in the 1880s was a solution of cocaine and water. Although no medical records survive to tell if Ike Clanton was actually coked up when he returned to the stand, during the next two days he displayed overweening confidence and seemed to glory in his own perceived brilliance. By the time he left the stand, his attorneys were probably the ones with the headache.
After a few set-up questions, the defense attorneys asked Ike if he knew Neil Boyle, the saloonkeeper at the Oriental. No, Ike did not know a Neil Boyle, but he did know the saloonkeeper at the Oriental by another name, and he did not remember visiting the bar at 6 A.M. on the day of the shooting, nor did he remember making any remarks that might be considered threats against the Earps.
Wyatt Earp: The Life Behind the Legend Page 24
