"After about four shots were fired, Ike Clanton ran up and grabbed my left arm. I could see no weapon in his hand, and thought at the time he had none, and so I said to him, 'The fight has now commenced. Get to fighting or get away.' At the same time I pushed him off with my left hand. He started and ran down the side of the building and disappeared between the lodging house and the photograph gallery.... I never fired at Ike Clanton even after the shooting commenced because I thought he was unarmed."
Wyatt said he never drew his pistol until Billy Clanton and Frank McLaury reached for their guns, and his first shot hit Frank McLaury in the stomach, who staggered off after firing a shot at Wyatt.
As to the critical question of the hearing, "If Tom McLaury was unarmed I did not know it. I believe he was armed and fired two shots at our party before Holliday, who had a shotgun, fired at and killed him. If he was unarmed there was nothing in the circumstances or in what had been communicated to me, or in his acts or threats, that would have led me even to suspect his being unarmed."
And, almost ominously, Wyatt Earp explained his motivation on the day the bullets flew: "I believed then, and believe now, from the acts I have stated and the threats I have related and other threats communicated to me by different persons, as having been made by Tom McLaury, Frank McLaury and Ike Clanton, that these men last named had formed a conspiracy to murder my brothers, Morgan and Virgil, Doc Holliday and myself. I believe I would have been legally and morally justifiable in shooting any of them on sight, but I did not do so, nor attempt to do so. I sought no advantage when I went, as deputy marshal, to help to disarm them and arrest them. I went as a part of my duty and under the directions of my brothers, the marshals. I did not intend to fight unless it became necessary in self-defense or in the rightful performance of official duty. When Billy Clanton and Frank McLaury drew their pistols, I knew it was a fight for life, and I drew and fired in defense of my own life and the lives of my brothers and Doc Holliday."
Before leaving the stand, Wyatt refuted the charge of his involvement in the stage robbery. "The testimony of Isaac Clanton that I ever said to him that I had anything to do with any stage robbery or giving any information of money going on the stage or any improper communication whatever in any criminal enterprise is a tissue of lies from beginning to end."
He also answered Behan's remarks about the broken deal that was to have made Earp undersheriff of Cochise County: "Sheriff Behan made me an offer ... that if I would withdraw and not try to get appointed sheriff of Cochise County, that we would hire a clerk and divide the profits. I done so, and he never said another word to me afterward in regard to it." As to Behan's story of not giving Earp the job because of his December conflict with the Clantons in Charleston, Earp said: "The reasons given by him here for not complying with his contract are false."
In a show of support, he presented signed statements from Dodge City and Wichita vouching for his competence: "That during his whole stay here he occupied a place of high social position and was regarded and looked upon as a highminded, honorable citizen; that as marshal of our city he was ever vigilant and in the discharge of his duties, and while kind and courteous to all he was brave, unflinching, and on all occasions proved himself the right man in the right place," read the notarized statement from Dodge. "Hearing that he is now under arrest, charged with complicity in the killing of those men termed 'Cow Boys,' from our knowledge of him we do not believe that he would wantonly take the life of his fellow man, and that if he was implicated, he only took life in the discharge of his sacred trust to the people, and earnestly appeal to the citizens of Tombstone, Arizona, to use all means to secure him a fair and impartial trial, fully confident that when tried he will be fully vindicated and exonerated of any crime. "32
Among the forty-nine signers was R. M. Wright, Wyatt's former Dodge adversary and the man he would later say tried to have him murdered. Also signing was Sheriff George Hinkle, with whom he would clash years later.
The Wichita document also praised Earp, calling him "a good and efficient officer... well known for his honesty and integrity," and stating "that his character while here was of the best, and that no fault was ever found with him as an officer or as a man." Notary Charles Hatton added a note: "I hereby certify that I knew personally Wyatt S. Earp during his residence in the city of Wichita. That I served four years as city attorney of said city and have known personally all of the officers of said city for the past ten years. I take great pleasure in saying that Wyatt S. Earp was one of the most efficient officers that Wichita ever had and I can safely testify that Mr. Earp is in every sense reliable and a trustworthy gentleman."33
Wyatt Earp left the stand defending his honor and that of his brothers. He had refuted Clanton's charges, and he had cast doubt on the testimony of Behan, Claiborne, Allen, and Fuller and taken the blame for igniting the fight with what may have been the first shot. By his version the cowboys were reaching for their guns, not holding their hands in the air; and he never had reason to believe Tom McLaury faced the Earps unarmed. Wyatt's strong statement provided a powerful beginning to the defense case.
Over the next two weeks, Fitch and his team gradually tore apart the prosecution's case. Saloonkeeper Bob Hatch had been walking down the street with Deputy Sheriff Billy Soule when the Earps walked past Behan. Hatch saw the gunfight, and he said he saw Morgan Earp fall before he saw him in the act of shooting.
Will McLaury wrote his sister, Margaret Appelgate, that evening, telling her the defense had expected better from Hatch. "One of their principal witnesses has been on the stand today and they feel bad his evidence is much stronger for us than it is for them. I think the scoundrel feared to act out his role, and I am of the opinion that his fears are not wholly groundless. I do not think that by perjury these men shall escape." Will McLaury believed his case secure. "I think their only hope is in escape and should they escape from jail, their bones will bleach in the mountains.... I find a large number of my Texas friends here who are ready and willing to stand by me and with winchesters if necessary. The only thing now is to keep my friends quiet-their [eic] came near being a general killing here last night which had it not been prevented would have closed my business here. I am trying to punish these men through the courts of the country first. If that fails -then we may submit."34
His language had been stronger in an earlier letter to David Appelgate: "I think the men will be punished according to law-and in the event they escape by any trick or otherwise there will be more 'Press Dispatches.' 1135
McLaury did not seem to be getting the full support of his family as he sat in the courtroom staring down Wyatt Earp. Apparently Margaret assailed him for leaving his two young children back in Texas while he went to Arizona. "I do not like your letter," Will McLaury responded. "It does not suit my mind or temper. My children will be provided for and I don't think a father would be any great advantage to them who would leave it to god to punish men who had murdered their uncles.... had I died these brothers ... would have loved and cared for my babies. Now when these men are dead by one means or another and the friends who aided them are dead all of which may occur soon then I will go home."36 As McLaury sorted through his personal problems, the defense case slowly came together.
Ned Boyle followed Hatch, but Price objected, saying Ike Clanton's threats were irrelevant and immaterial. The lawyers spent most of that Friday, November 18, wrangling over the issue, with the prosecution quoting the law that mere threats to kill or do great bodily harm are never admissible unless there is a doubt raised by the evidence as to which party commenced the affray, or when there is some evidence that the party making the threat by some sort of demonstration at the time of the killing led the defendant then and there to believe the party making such threats was about to put it into execution.
Fitch brought out the law books, saying that such evidence was admissible since it would shed light on the intent of the party committing the homicide and illustrate the motives of the party accuse
d of murder. The wrangling continued until late in the afternoon, when Spicer sustained the prosecution objection and kept Boyle from telling his story. If the decision stood, it could mean disaster for the defense.37
A day later, court reconvened in Virgil Earp's room at the Cosmopolitan Hotel, and the city marshal told his version of a fight he swore he tried to avoid. Virgil said that Wyatt and Morgan were both deputies, Morgan as a special and Wyatt both as a special and as the U.S. deputy marshal.38 Virgil said he had asked Holliday to come along and help. He gave his version of the events leading up to the gunfire, then laid out what he considered treachery from Behan. "He threw up both hands like this and said, 'For God's sake, don't go there or they will murder you.'
"I said, 'Johnny, I am going down to disarm them.' By this time I had passed him a step and heard him say, 'I have disarmed them all.' When he said that, I had a walking stick in my left hand and my right hand was on my sixshooter in my waist pants, and when he said he had disarmed them, I shoved it clean round to my left hip and changed my walking stick to my right hand. As soon as Behan had left them I moved in between the two buildings out of sight of them. We could not see them, all we could see was about half a horse."
Virgil said the walk continued until they saw the cowboys. "They were all standing in a row. Billy Clanton and Frank McLaury had their hands on their six-shooters. I don't know hardly how Ike Clanton was standing, but I don't think he had his hands in any attitude where I supposed he had a gun. Tom McLaury had his hand on a Winchester rifle on a horse. As soon as I saw them I said, 'Boys, throw up your hands. I want your guns, or arms.' With that Frank McLaury and Billy Clanton drew their six-shooters and commenced to cock them-click, click. Ike threw his hands into his breast this way," Virgil showed the motion as he spoke.
"At that I said, throwing up both hands, with the cane in my right hand ... 'Hold, I don't want that.' As I said that, Billy Clanton threw his six-shooter down full cocked. I was standing to the left of my part, and he was standing to the right of Tom and Frank McLaury. He was not aiming at me, but his pistol was kind of past me-two shots went off right together-Billy Clanton's was one of them. At that time I changed my cane to my left hand and went to shooting. It was general then, and everybody went to fighting. At the crack of the first two pistols, the horse jumped to one side, and Tom McLaury failed to get the Winchester. He threw his hands back this way," Virgil showed the motion, "he followed the movement of the horse around, making him a kind of breastwork, and fired once, if not twice, over the horse's back."39
Virgil left the guns blazing as the court broke for lunch. The marshal was excused to rest his sore leg, and the afternoon concluded with city clerk Seward Breck Chapin coming to the stand to read city ordinances directing the chief of police to arrest anyone engaged in brawling in the streets or carrying a gun without a permit in the city limits. The prosecution objected to the city ordinances being introduced, saying they were immaterial. Spicer deferred a decision, and the long hearing adjourned for two days of rest.
Virgil continued his testimony on Tuesday morning, finishing the story of the series of threats against Holliday and the Earps that fateful morning before the fight and telling of previous encounters with the Clantons and the McLaurys. He remained firm under cross-examination, stating he believed Wyatt Earp and Billy Clanton fired the first shots, and that he had never previously met H. F. Sills, the mysterious train engineer who happened to be standing outside the O.K. Corral.
Virgil Earp's testimony had gone far to focus in on the question of who really provoked the fight and who started the actual shooting. The prosecution's key points were weakened, and the testimony of the prosecution witnesses became suspect.
Sills spent the afternoon on the witness stand telling of standing in front of the O.K. Corral and hearing one of the cowboys say they would kill the whole party of the Earps when they met them. He said he then told the marshal and watched the action. His story backed up that of the Earps, saying he saw Virgil raise his cane and Wyatt and Billy Clanton pull off the first shots, then held firm when the prosecution began its cross-examination.
Sills came off as the perfect witness, a stranger to all concerned who just happened to be in town from Las Vegas, New Mexico, after a temporary layoff from the Atchison, Topeka, and Santa Fe Railroad. Since he had no allegiance to either side, he was impartial, with no motive for lying. He was almost too good to be true, at least in the eyes of the prosecution. Price and his associates dug into Sills's story when court resumed Wednesday morning, asking him to recount trivial details of his life. The detailed cross-examination was designed to shake his credibility and try to link him to the Earps, either in the past or, perhaps, as a witness who had been hired to lie on the stand. Never for a minute did Sills waiver, even describing the horses pulling the wagon on which he first rode into town. The prosecution finished by asking if he had a nickname at the railroad. "Curley," he responded. But Curley Sills was no Curley Bill.
In supporting the Earps' story, Sills's account succeeded in absolutely shaking the credibility of the cowboys' version. Now, certainly, there appeared a serious question as to the cowboy testimony that the Earps had fired upon men with their arms in the air. Sills's testimony made relevant the issue of what prompted the gunfight, and now Spicer would allow the testimony regarding the threats that came earlier on the day of the shooting. It was a staggering defeat for the prosecution.
Saloonkeeper Julius Kelly followed Sills to the stand, and Spicer allowed testimony about Clanton's threats. "Ike Clanton and Joe Stump came in and called for drinks," Kelly said. "At the time I was waiting upon some other customers, when I heard Clanton telling Stump of some trouble he had had the night previous. I asked Clanton what trouble he had been having. He said that the Earp crowd and Doc Holliday had insulted him the night before, when he was not heeled; that he had now heeled himself and that they had to fight on sight. I cautioned him against having any trouble, as I believed the other side would also fight if it came to the point, or words to that effect."40
Ned Boyle, the bartender at the Oriental, followed, and the prosecution again objected that Ike's threats were irrelevant since he was not part of the actual gunfight. The prosecution charged that such threats would matter only if they came from Billy Clanton or the McLaurys. Spicer overruled the objection, and the defense now had a wide-open road to make Ike Clanton the incendiary of the shootout.
Ike's pattern of threats became clear as Boyle told his story: "After I went off watch at 8 o'clock in the morning, I saw Ike Clanton in front of the telegraph office in this town. His pistol was in sight, and I covered it with his coat and advised him to go to bed. He insisted that he wouldn't go to bed; that as soon as the Earps and Doc Holliday showed themselves on the street the ball would open, and that they would have to fight." Boyle said that the Clantons and the McLaurys had reputations as courageous men and experts with firearms, "the finest in the country."
The prosecution asked whether Boyle knew any of the deceased to have been troublemakers. He said he did not. But his testimony on Ike's threats had already done the damage.
Rezin J. Campbell, clerk of the board of supervisors, came next and told of the skirmish in Wallace's courtroom and Ike's comment to Morgan Earp: "If you fellows had been a second later I would have furnished a coroner's inquest for the town." Campbell also told of the dead men's reputations for courage and accuracy with guns as the defense built the sense of danger the Earps had faced.41
Every prosecution objection that day had been overruled, and the defense had clearly established serious doubts in the prosecution case. Spicer reconsidered the motion for bail, and respected mine operators E. B. Gage and James Vizina stepped in to add their names to the list providing the bail of $20,000 each. After sixteen nights under Behan's guard, Holliday and Wyatt Earp left jail in time for Thanksgiving; they had four days off from the hearing, part of which Wyatt spent sick in bed.
When court resumed November 28, Fitch and friends en
tered the hearing room with some startling testimony. Army surgeon J. B. W. Gardner testified he thought Tom McLaury was armed. "[I] saw no pistol but supposed at the time on seeing the right hand pocket of his pants extending outwards that he had got his pistol." Gardner said he told hotelkeeper Albert Bilicke "that I was sorry to see Tom McLaury had gotten his pistol."
Then came perhaps the biggest surprise of the trial. Winfield Scott Williams, Price's recently appointed assistant district attorney, virtually called Sheriff Behan a liar for what he reported of the conversation with Virgil Earp on the night of the shooting. "Virgil Earp was lying in bed," Williams testified. "Sheriff Behan came in and sat down on the edge of the bed at the foot. I sat down on a sofa at the head of the bed and facing the sheriff. Sheriff Behan said, speaking to Virgil Earp with reference to the affray which had taken place a few moments before, 'I went down to the corral to disarm them, and I could not,' or 'They would not,' I don't know which expression was used."42
According to Williams, Behan said, "I then met you and your party and spoke to you. You did not answer. I heard you say, 'Boys, throw up your hands, I have come to disarm you.' One of the McLaury boys said, 'We will,' and the shooting then commenced." Williams added, "That is as I remember it."
The defense question had included whether Williams had heard Behan say he had seen one of the McLaurys draw a pistol after the words, "We will," and Williams said that had been his understanding. The new assistant D.A.'s testimony proved a direct contradiction to what Behan had said more than three weeks earlier, when he stated, "I never told him I heard McLaury say anything or that I saw him draw a pistol."
Williams also reported Behan's remark "I am your friend, you did perfectly right." Behan had testified that he only said he and Virgil were friends, nothing about applauding their actions. An outside witness, with no discernible reason to lie, had stood before the court and stated that he heard the sheriff acknowledge that the cowboys had drawn first. An assistant district attorney had virtually called Johnny Behan a liar from the witness stand. Now even the sheriff's testimony had to be held in doubt. A shadow had fallen on the most credible of the prosecution witnesses, and Price's case slowly disintegrated.
Wyatt Earp: The Life Behind the Legend Page 26
