Cosmopolitan hotelkeeper Albert Bilicke came next and said Tom McLaury's appearance had changed between the time he entered Everhardy's butcher shop, and the time he walked out. "When he went into the butcher shop his right-hand pants pocket was flat, seemingly nothing in it. When he came out his pants pocket protruded as if there was a revolver therein."
Testimony about bulging pants stirred the prosecution. Why would Bilicke be watching McLaury's pants so closely?
Bilicke answered easily: "Every good citizen in this city was watching all these cowboys very closely on the day the affray occurred, and as he was walking down the street my attention was called to this McLaury by a friend and so it happened that we watched him very closely."
Sarcasm spilled from the prosecution: "Did you know every good citizen in Tombstone, or did you on that day?"
"I know not all of them but a great many," Bilicke responded, unruffled.
"Do you know what the opinions of all good citizens of Tombstone were on the day by conversation or conversations with them about watching Thomas McLaury in this city, and if so, tell us who they were," the prosecution continued sarcastically. The question was withdrawn without answer.43
Dressmaker Addie Borland, a single woman in her mid-30s, lived across the street from the scene of the shooting and came to the stand with some confusing testimony. She said she watched the Earp party walk up to the cowboys and saw Doc Holliday push a pistol into the chest of one of the men, then step back. Was the gun nickel-plated? No, she said, dark bronze. She did not know who fired first, and she had not seen the cowboys raise their hands.
Borland's testimony muddied the issue. The cowboys had all testified Doc started the shooting with his nickel-plated pistol, while the defense insisted he carried the shotgun to the scene, fired on Tom McLaury only after the shooting began, then discarded the shotgun before drawing his six-shooter. Holliday, with his frail 135-pound frame, would have been unlikely to be wielding a pistol in one hand and a shotgun in the other like some fantasy gunslinger from a pulp novel. Most likely Borland had seen only the barrel of the short shotgun protruding from under Holliday's coat and had mistaken it for a pistol.
Since the first volley was pistol shots, the defense was trying to show that Holliday could not have set off the fight. Now Borland appeared with another version. She did help the Earps somewhat by saying she did not see the cowboys raise their hands, but her testimony left more questions than it answered. During the noon break, Spicer did one of the oddest things of the hearing. He visited Borland at her home, then took it upon himself to recall her for the afternoon session. When court resumed, Spicer stunned the room. He believed Borland knew more than she had stated, and he brought her back to the stand to answer his questions. The prosecution protested mightily at having a witness returned without solicitation from either side. Spicer overruled the objection and questioned Borland on his own.
The judge asked if she had seen the cowboys with their hands in the air, or if they were firing back at the Earps.
"I did not see anyone hold up their hands," Borland replied. "They all seemed to be firing in general on both sides. They were firing on both sides at each other. I mean by this, at the time the firing commenced."
The prosecution attacked, asking first about the firing, then querying her about Spicer's actions at her home.
"He asked me one or two questions in regard to seeing the difficulty, and if I saw any men hold up their hands, and if they had thrown up their hands whether I would have seen it, and I told him I thought I would have seen it," Borland answered.
The dressmaker's most important comment came at the end: Had the cowboys been standing with arms upraised, she would have seen it, she believed. She did not think she could have missed such a sight, and her statement contrasted with the remarks of Claiborne, Clanton, and Fuller.44
When Borland stepped down, John Lucas, a former Los Angeles farmer turned lawyer and probate court judge in Tombstone, finished the defense case by saying he rushed from his office in time to see Billy Clanton continue to fire through the fight. This undercut prosecution testimony that Billy had gone down early in the fight.
The defense rested. Two weeks after the Earps seemed certain to face trial, the hearing had turned strongly in their direction. Price, McLaury, and their team had little ammunition left to fire. On Tuesday morning they made their final attempt, calling butcher Ernest Storm, who worked at the meat market Tom McLaury had visited. Storm said: "I saw Tom McLaury going into my shop about two or three o'clock in the afternoon. [He] stayed there about four or five minutes and went out. [I] did not see any arms on his person. He did not get any in there that I saw."
Price submitted the case without argument, and Spicer was left to make a decision.
SPICER WRESTLED WITH HIS STATEMENT OVERNIGHT, although the decision had already become apparent to everyone involved. During the last few days of the hearing he had consistently ruled in favor of the defense and even brought a witness back to the stand to strengthen the defense case. When he returned to the courtroom at 2 P.M. on that final day of November, he came with a long, reasoned statement that will stand as one of the most revealing legal analyses ever made on the course of frontier justice. Spicer said he considered only the facts that were conceded by both sides or were established by a preponderance of testimony, which ruled out the disputed issues of the cowboys having their arms uplifted and of Doc Holliday's purported stage-robbing background.
The judge read on, explaining the decision that would come at the end of the statement. Spicer believed Clanton had been making his threats, and it was indeed Virgil Earp's job to disarm anyone violating the city ordinance by carrying weaponry on the streets. It was proper to arrest and disarm Ike Clanton, though the cowboy may have been treated roughly. "Whether this blow was necessary or not is not material here to determine," Spicer said.
He did not condone all of Virgil Earp's decisions, citing the background of animosity between the McLaurys and Wyatt Earp: "Virgil Earp, as chief of police, by subsequently calling upon Wyatt Earp and J. H. Holliday to assist him in arresting and disarming the Clantons and McLaurys, committed an injudicious and censurable act, and although in this he acted incautiously and without proper circumspection, yet we consider the condition of affairs incident to a frontier country, the lawlessness and disregard for human life, the existence of a law-defying element in our midst, the fear and feeling of insecurity that has existed, the supposed prevalence of bad, desperate and reckless men who have been a terror to the country and keep away capital and enterprise, and considering the many threats that have been made against the Earps, I can attach no criminality to his unwise act. In fact, as the result plainly proves, he needed the assistance and support of staunch and true friends upon whose courage, coolness and fidelity he could depend in case of an emergency."
As to the McLaurys' and the Clantons' actions moving through town: "With what purpose they crossed through to Fremont Street will probably never be known. It is claimed by the prosecution that their purpose was to leave town. It is asserted by the defendants that their purpose was to make an attack upon them, or, at least, to feloniously resist any attempt to arrest or disarm them that might be made by the Chief of Police and his assistants. Whatever their purpose may have been, it is clear to my mind, that Virgil Earp, the Chief of Police, honestly believed, and from information of threats that day given him, his belief was reasonable, that their true purpose was, if not to attempt the death of himself and his brothers, at least to resist with force and arms any attempt on his part to perform his duty as a peace officer by arresting and disarming them....
"Was it for Virgil Earp, as Chief of Police, to abandon his clear duty as an officer because his performance was likely to be fraught with danger? Or was it not his duty that as such officer, he owed to the peaceable and law-abiding citizens of the city, who looked to him to preserve peace and order and their protection and security, to at once call to his aid sufficient assistance a
nd proceed to arrest and disarm these men? There can be but one answer to these questions, and that answer is such as will divert the subsequent approach of the defendants toward the deceased of all presumption of malice or illegality. When, therefore, the defendants, regularly or specially appointed officers, marched down Fre mont Street to the scene of the subsequent homicide, they were going where it was their right and duty to go. They were doing what it was their right and duty to do. And they were armed, as it was their right and duty to be armed when approaching men whom they believed to be armed and contemplating resistance. The legal character of homicide must, therefore, be determined by what occurred at the time, and not by the precedent facts. To constitute a crime of murder there must be proven, not only the killing, but the felonious intent. In this case, the corpus delicti, or fact of killing, is in fact admitted, as will be clearly proven. The felonious intent is as much a part to be proven as the corpus delicti, and in looking over this mass of testimony for evidence upon this point I find that it is anything but clear.
"Witnesses of credibility testify that each of the deceased, or at least two of them, yielded to a demand to surrender. Other witnesses of equal credulity testify that William Clanton and Frank McLaury met the demand to surrender by drawing their pistols, and that the discharge of fire arms from both sides was almost instantaneous. There's a dispute as to whether Thomas McLaury was armed at all, except with a Winchester rifle that was on the horse beside him. I will not consider this question, because it is not of controlling importance. Certain it is, that the Clantons and McLaurys had among them at least two sixshooters in their hands and two Winchester rifles on their horses; therefore, if Thomas McLaury was one of a party who were thus armed and were making felonious resistance to an arrest, and in the melee that followed was shot, the fact of his being unarmed, if it be a fact, could not of itself criminate the defendants, if they were not otherwise criminal. It is beyond doubt that William Clanton and Frank McLaury were armed and made such quick and effective use of their arms as to seriously wound Morgan and Virgil Earp.
"In determining the important question of whether the deceased offered to surrender before resisting I must give as much weight to the testimony of persons unacquainted with the deceased or the defendants, as to the testimony of persons who were companions and acquaintances, if not partisans, of the deceased. And I am of the opinion that those who observed the conflict from a short distance and from points of observation that gave them a good view of the scene, to say the least, were quite as likely to be accurate in their observation as those mingled up in or fleeing from the melee. Witnesses for the prosecution state unequivocally that William Clanton fell or was shot in the first fire, and Claiborne says he was shot when the pistol was only about a foot from his belly. Yet it is clear that there were no powder burns or marks on his clothes and Judge Lucas says he saw him fire or in the act of firing several times before he was shot, and he thinks two shots afterward.
"Addie Borland, who saw distinctly the approach of the Earps and the beginning of the affray from a point across the street where she could correctly observe all their movements, says she cannot tell which fired first-that the firing commenced at once, from both sides upon the approach of the Earps, and that no hands were held up; that she could have seen them if there had been. Sills asserts that the firing was almost simultaneous, he cannot tell which side fired first.
"Considering all the testimony together, I am of the opinion that the weight of evidence sustains and corroborates the testimony of Wyatt Earp and Virgil Earp, that their demand for a surrender was met by William Clanton and Frank McLaury drawing, or making motions to draw their pistols. Upon this hypothesis my duty is clear. The defendants were officers charted with the duty of arresting and disarming brave and determined men who were experts in the use of firearms, as quick as thought and as certain as death, and who had previously declared their intentions not to be arrested nor disarmed. Under the statutes as well as the common law, they had a right to repel force by force."
Spicer said the angle of Billy Clanton's wrist wound was "such as could not have been received with his hands thrown up." And Tom McLaury's wound was not the sort that would have come with him holding his lapels. "These circumstances being indubital facts throw great doubt upon the correctness of the statement of witnesses to the contrary."
He flatly disbelieved Ike Clanton. "The testimony of Isaac Clanton that this tragedy was the result of a scheme on the part of the Earps to assassinate him, and thereby bury in oblivion the confessions the Earps had made to him about piping away the shipment of coin by Wells, Fargo & Co. falls short of being sound theory because of the great fact most prominent in the matter, to-wit: that Isaac Clanton was not injured at all, and could have been killed first and easiest. If he was the object of the attack he would have been first to fall, but as it was, he was known, or believed to be unarmed and was suffered, and so Wyatt Earp testifies, told to go away, and was not harmed."
Spicer even used Behan's testimony against the cowboys, an interesting twist in the case. Frank McLaury's refusal to give up his arms to the sheriff unless the chief of police was also disarmed showed a reasonable intent of violence, the justice rationalized.
"In view of the past history of the country and the generally believed existence at the time [of] desperate, reckless and lawless men in our midst banded together for mutual support, and living by felonious and predatory pursuits regarding neither life or property in their career, and at this time for men to parade the streets armed with repeating rifles and six-shooters, and demand that the Chief of Police of the city and his assistants should be disarmed is a proposition both monstrous and startling. This was said by one of the deceased only a few minutes before the arrival of the Earps."
Since Billy Clanton and the McLaurys chose to fight back, "It does not appear to have been a wanton slaughter of unresisting and unarmed innocents, who were yielding graceful submission to the officers of the law, or surrendering to, or fleeing from their assailants, but armed and defiant men accepting the wager of battle and succumbing only in death."
Much of the prosecution case had been based on the Earps' eagerness to fight, their intent to murder. Spicer brushed it aside. "I cannot believe this theory, and cannot resist the firm conviction that the Earps acted wisely, discreetly and prudentially to secure their own self-preservation. They saw at once the dire necessity of giving the first shot to save themselves from certain death. They acted; their shots were effective, and this alone saved all the Earp party from being slain. In view of all these facts and circumstances of the case, considering the threats made, the character and position of the parties, and the tragical results accomplished in manner and form as they were with all surrounding influences bearing upon the res gestae of the affair, I cannot resist the conclusion that the defendants were fully justified in committing these homicides -that it was a necessary act done in the discharge of an official duty.
"The evidence taken before me in this case would not, in my judgment, warrant a conviction of the defendants by a trial jury of any offense whatever. I do not believe that any trial jury that could be got together in this Territory would, on all the evidence taken before me, with the rules of law applicable thereto given them by the court find the defendants guilty of any offense."
He invited the Cochise County grand jury to reevaluate his decision, but everyone knew that was unlikely. The preliminary hearing had ended. Wyatt Earp and Holliday left without being bound over for a murder trial.
The Earps had won their day in court, but they had lost in a higher tribunal-the court of public opinion. Spicer's decision freed the Earps, left the townsmen to ponder the issues, and caused a continuing puzzle for historians. The prosecution case had portrayed cold-blooded murder: the Earps firing upon a party of men, two unarmed and three with their hands in the air. Back on November 7 guilt seemed clear enough to send Wyatt Earp to Johnny Behan's jail, where he would fear for his life suspecting the sheriff and h
is deputies would happily hand him over to any cowboy lynch mob that trotted into town.
Several of the prosecution's key points were left unanswered by the defense, such as Ike Clanton's charge that Holliday and the Earps had been involved in laundering money after the stage robberies and whether or not Ike Clanton had sent a telegram to summon other cowboys to fight an expected battle. Instead of clearing the Earps' reputation, the defense had left only a muddy field from which lies and innuendo would be remembered long after the decision.
While Fitch and friends left no explanation, the probable reason for such seeming oversights is that this was only a preliminary hearing, and the defense had no desire to expose all its weapons so the wily prosecution attorneys would know how to prepare for the big trial. The defense did little to undermine Ike Clanton-he fumbled mostly by himself. Had Fitch brought out the simple point that no money was missing from the stage after the robbery, where Ike accused the Earps of stealing the loot before ever putting the strongbox on the stage, Clanton would have much time to figure out some answer. Better to put him in front of a jury, then make him appear the fool. And by not producing Ike's telegram to Charleston summoning help, if such a telegram existed, the prosecution would have to stew over how to respond, not knowing whether their planning would be a waste of effort. Fitch could have been waving a red herring, a distraction, or he could have been holding back evidence that would have made Ike Clanton appear even more foolish when he told his story to a jury.
It is likely that Fitch had no expectation of having the case resolved at the preliminary hearing until Clanton stepped on the stand and presented his bizarre story. The meeting of defense attorneys on the night of November 12 can only be imagined, with the team debating whether to parade witnesses before Spicer or let the case rest and take the best shot before a jury. It was a dicey question-too much testimony would expose the defense case, too little would leave the Earps indicted and under Behan's guard for about another month.
Wyatt Earp: The Life Behind the Legend Page 27
