Doc Holliday

by Gary L Roberts

  “You bet we did right,” Wyatt added. “We had to do it. And you threw us off, Johnny. You told us they were disarmed.”

  Behan let the matter go for the moment. Later, when Ike was located, he was taken into custody by the sheriff’s office. Fin Clanton came in from the ranch and, after seeing Billy’s body, put himself in Behan’s custody as well, with ten extra deputies hired to protect him and Ike. In response to a rumor “that a mob would attempt to take Ike Clanton from the jail and lynch him and to prevent any such unlawful proceedings a strong guard of deputtes [sic] was placed around that building and will be so continued until all danger is past.”45

  Doc did not linger at the scene once the fight was clearly over. He retired to his room at Fly’s. Kate recalled:

  After the fight, Doc came in, and sat on the side of the bed and cried and said, “Oh this is just awful—awful.” I asked, “Are you hurt?” He said, “No, I am not.” He pulled up his shirt. There was just a pale red streak about two inches long across his hip where the bullet had grazed him. Then he went out to see what had become of the two Earps that were wounded; they were afraid to leave them for fear that the cow rustlers would take them in the night.46

  That evening, John Behan called on the Earps at Virgil’s home. He found the two injured Earp brothers there, along with James Earp and three of the Earp wives. Winfield Scott Williams (a lawyer about to take office as an assistant district attorney) and another unidentified man, described by Williams as a “red-faced man, about 5 feet 8 inches high, dressed in a ordinary suit of clothes,” were also present.47 The mood between the marshal and the sheriff was tense. Virgil was clearly angry because he believed that Behan had misled him about the Cow-Boys. Behan’s admission that he had tried to disarm the Cow-Boys, but that he had not done so when the Earps came down Fremont Street, did not help. Virgil and Williams would both contend that Behan told Virgil that he had heard the marshal tell the Cow-Boys to throw up their hands and that he had seen Frank McLaury pull his pistol and begin firing. Both Virgil and Behan claimed to be friends, but when Behan left, both still had hard feelings.48

  Wyatt came in after Behan left. He and Doc had been together trying to get a sense of what to expect next. There were fears of a Cow-Boy raid. These concerns were overblown, but Wyatt did warn his brothers that they would all most likely be charged. After Wyatt left, Morgan told Virgil’s wife, Allie, “If they come, Al, you’ll know they got Wyatt. Take this six-shooter and kill me and Virge before they get us.” Allie and Louisa, Morgan’s wife, stacked mattresses in front of the windows, and Allie sat up all night with a pistol in her lap. “I would have used it, too,” she recalled, “if they had come to kill Virge and Morg.”49

  Nothing happened that evening. In fact, initially, the public reaction was surprisingly favorable to Marshal Earp, his brothers, and Doc Holliday. As expected, Clum’s Epitaph strongly justified what had happened:

  The feeling among the best class of our citizens is that the Marshal was entirely justified in his efforts to disarm these men, and that being fired upon they had to defend themselves, which they did most bravely. So long as our peace officers make an effort to preserve the peace and put down highway robbery—which the Earp brothers have done, having engaged in the pursuit and capture, where captures have been made, of every gang of stage robbers in the county—they will have the support of all good citizens. If the present lesson is not sufficient to teach the cowboy element that they cannot come into the streets of Tombstone in broad daylight, armed with six-shooters and Henry rifles to hunt down their victims, then the citizens will most assuredly take such steps to preserve the peace as will be forever a bar to further raids.50

  The Nugget’s account confirmed the view that when Virgil called on the Clantons and McLaurys to throw up their hands, “Frank McLowry [sic] made a motion to draw his revolver, when Wyatt Earp pulled his and shot him” to precipitate the tragedy. The Nugget did note that the McLaurys “did not bear a reputation of being of a quarrelsome disposition, but were known as fighting men, and have generally conducted themselves in a quiet and orderly manner when in Tombstone.” This surprisingly balanced view indicated that Richard Rule wrote the account, because Harry M. Woods was still in El Paso.51

  News of the street fight spread quickly. The San Francisco Daily Report was laconic: “A dispatch from Tombstone describes the killing of three desperadoes by the City Marshal and his assistants and then says ‘The town is quiet and the authorities are fully able to maintain order.’ Considering the summary disposal of the desperadoes the remarks about the quietness of the town and the power of the authorities are somewhat superfluous.”52

  The San Francisco Exchange celebrated, “The people of Tombstone have reason to congratulate themselves that they have not only courageous Marshals but Marshals who are dead shots. That performance yesterday, wherein three cowboys were left dead on the field and one lodged in jail, is among the happiest events Tombstone has witnessed, and especially so as it was attended with so little injury to the law vindicators.”53

  The first real clue that the shootout would not pass without controversy came when the bodies of the McLaurys and Billy Clanton were propped up in their ornate caskets under a sign that read: MURDERED IN THE STREETS OF TOMBSTONE.54 Many were stunned by the size of the crowd that gathered for the funeral. The procession, led by a brass band, two hearses, Ike and Fin Clanton in a wagon, three hundred people on foot, twenty-two carriages and buggies, a stagecoach, and an entourage of men on horseback, was the largest in Tombstone’s history. Curiosity seekers lined the sidewalks, and the whole affair was made all the more sobering because it occurred the day after the fight before many in the outlying areas had time to find out about the fight or make the trip to Tombstone.55

  Clara Brown rightly noted, “The divided state of society in Tombstone is illustrated by this funeral.” She was skeptical that the reasons were based on right or wrong, however, noting:

  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 that 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 be at the next election.56

  Still, even with that strongly held view, she was certain that the community was divided on whether the killings had been justified, and she concurred with George W. Parsons, who observed grimly, “It has been a bad scare and the worst is not yet over some think.”57 They were right. On October 28, at ten o’clock in the morning, a coroner’s inquest convened. John Behan took the stand, and a different view of the fight unfolded as he testified:

  When they [the Earps and Doc] got to the party of cowboys, they drew their guns and said, “You sons-of-bitches, you have been looking for a fight and you can have it.” Someone of the party, I think Marshal Earp, said, “Throw up your hands! We are going to disarm you!” Instantaneously with that, the fighting commenced. They fought around there, and there was from 25 to 30 shots fired.

  All the time before the shots were fired, I was talking to all parties, saying, “Put up your guns!”, not to shoot. I heard Billy Clanton say, “Don’t shoot me! I don’t want to fight,” or something to that effect.…

  Tom McLowry [sic] said, “I have got nothing,” and threw his coat back to show that he was not armed. This was instantly with the shooting, almost at the same time. The order to throw up their hands and this remark and the shooting were almost simultaneous.58

  By the time the coroner’s jury had finished hearing testimony, Ike Clanton and Billy Claiborn
e had sworn that the Cow-Boys had thrown up their hands when commanded to do so, except for Tom McLaury, who threw open his coat to show he was unarmed. Other witnesses testified, but Behan, Clanton, and Claiborne presented the view that the Earps provoked the fight and then opened fire on the unresisting Cow-Boys. They also shifted the firing of the first two shots from Wyatt Earp and Billy Clanton, as reported by both Tombstone newspapers, to Doc Holliday and Morgan Earp.59

  The coroner’s jury avoided placing blame, stating simply that the Cow-Boys had died “from the effects of gunshot wounds by Virgil Earp, Morgan Earp, Wyatt Earp, and one Holliday—commonly called ‘Doc’ Holliday.” The Nugget noted with deep sarcasm that the verdict reassured them: “We might have thought they had been struck with lightning or stung to death by hornets.”60 Regardless, no one in Tombstone missed the point that the Cow-Boys and Sheriff Behan were building a case for murder. More important, the failure of the coroner’s jury to declare the Earps’ action justifiable opened the door for criminal charges against them. George Parsons understood the implication: “Looks bad for them all thus far.”61

  On October 29, warrants were issued for the arrest of Virgil, Wyatt, Morgan, and Doc, on the strength of a complaint by Ike Clanton sworn out before Justice of the Peace Wells Spicer. Spicer denied bail, but because of the seriousness of Virgil’s and Morgan’s wounds, only Wyatt and Doc were taken into custody. Once defense attorneys submitted affidavits of fact, Spicer granted bail, but at the stunning (for the time) amount of $10,000 each. O.C. “Charlie” Smith, James Earp, Lou Rickabaugh, John Marshall Nichols, Fred Dodge, Robert J. Winders, W. H. Savage, Charles R. Brown, A. C. Bilicke, and Thomas J. Fitch were bondsmen for Wyatt Earp, raising a total of $27,000, and Smith, Dodge, Winders, James and Wyatt Earp, Savage, Dan O’Toole, and William J. Hutchinson were bondsmen for Doc Holliday, raising $14,500 more. Interestingly, the largest individual sum for Doc’s bond was $7,000, furnished by Wyatt.62 The money pledged was far more than the amount required and indicated strong support for the Earps and Doc Holliday.

  The day the arrests were made, Mayor Clum called a special session of the town council with the following result: “Mayor Clum stated that [the] meeting was called to consider grave charges against Chief of Police Earp and it was ordered that pending investigation of said charges Chief Earp be temporarily suspended and James Flynn act as Chief during such suspension.”63 The following day, Virgil Earp blundered by requesting a company of cavalry from Fort Huachuca to protect the town from Cow-Boy retaliation. General Orlando Willcox put a company at readiness and wired Acting Governor John J. Gosper, but the primary effect was to win ridicule for Virgil.64 By then, Harry Woods had returned from El Paso and had taken charge of the Nugget’s editorial campaign against the Earps. He belittled Virgil’s request and took a very different approach to what had happened on Fremont Street. He provided a heartrending account of the fate of the McLaurys and Billy Clanton:

  With great holes pierced through their bodies by the leaden messengers of death, their sole anxiety seemed to be to return shot for shot, and only when the spark of life ceased to burn did they relinquish their hold on the death dealing revolver, and they sank to earth while the smoke from their weapons ascended as from a funeral pyre. Before death claimed them for his own they saw Morgan Earp fall only to raise up and renew the murderous fire, and the chances for each man’s life engaged was a thousand to one against him. Who says it does not require courage to stand and listen to the music of half a dozen six-shooters singing a dead march in unison every time the hammers come down? But these men died, as they would probably have chosen to die had they had their choice.65

  “To read such stuff as this,” scoffed the San Francisco Daily Report, “is enough to make the healthiest feel sick.” The Nugget, the Report declared, “indulges in the customary gush over the ‘sand’ and ‘grit’ the well-served desperadoes exhibited.” The San Francisco editor’s disgust then overflowed: “To such papers as the Nugget are due the troubles from which the Territory has suffered or is suffering. They are always toadying to the criminal element and standing in with the rings. If we are to gush over the courage of murderers and desperadoes when they resist arrest, why not eulogize the skill of burglars, the boldness of garroters, and the enterprise of incendiaries.”66

  For the business-minded editors of California, the issue seemed simple enough: the law was primarily about maintaining order to produce an environment conducive to commerce and social stability. In Arizona, however, things were considerably more complex. What was right was not just about what was good for business. In Tombstone especially, even many of those who deplored the Cow-Boy problem in broad terms could hardly help asking whether such a bloody affair on the city streets had been necessary. For most Tombstone residents, the Cow-Boys were faceless beyond the few notables like Curly Bill Brocius and John Ringo, whose exploits made the papers. In street discourse, the question for many was not the “character of the parties killed,” but the motives of Marshal Earp and his deputies.

  The views expressed by Arizonans were not more pristine, however. Politics was already spilling over into what should have been a simple issue of law enforcement. The Democrats could not fail to see the potential value of the Earps’ troubles for them at both the territorial and county levels. Surely, the case benefitted Behan, who expected Wyatt to run against him in the next election for sheriff. Undersheriff Woods was now in the perfect position to promote Behan’s cause at Wyatt Earp’s expense. Criminal conduct on the part of the Earps also had the potential to benefit the opponents of John Clum within the city. Moreover, economic connections with the Clantons and the McLaurys and a certain class resentment of the power structure in Tombstone caused some to question Marshal Earp’s decision. Ironically, even some of those who had no love for the Cow-Boys but for whom appearances mattered worried that the street fight would be bad for business. Those like Clum—and other public officials all the way to Prescott—as well as the Earps and their allies saw the Fremont Street fight as an opportunity to reinforce the urgency of dealing with the Cow-Boy problem, but they found its usefulness diluted by the sensational nature of what had happened.

  At three o’clock in the afternoon on Monday, October 31, Justice Spicer convened a hearing to determine whether sufficient evidence existed for the grand jury to consider bringing the Earp brothers and Doc Holliday to trial on charges of murder. The hearing opened behind closed doors by defense request in accordance with territorial law. The coroner H. M. Matthews provided the only testimony of the day with details of the wounds received by the deceased and served to prove that keeping the proceedings secret would be impossible when the Nugget printed Matthews’s testimony on November 1.67 By the time William G. Allen took the stand as the lead witness that morning, the chances of keeping the testimony secret had already evaporated.

  The hearing would quickly become something much more than a perfunctory review of evidence to determine probable cause. Indeed, it became something more than an investigation into a shooting. District Attorney Lyttleton Price faced a genuine challenge in prosecuting the case. Friends of the Cow-Boys doubted his zeal, and friends of the Earps were upset that he pursued the case at all. His Republican credentials and the earlier efforts of Cochise County Democrats to deny him the post combined to make his handling of the case controversial from the beginning and explained why other attorneys joined him to help secure the indictment he was charged to seek, including the able Ben Goodrich, who had defended Cow-Boys in the past, and the well-respected Marcus Aurelius Smith, who was excused from testifying before the coroner’s inquest apparently because he had been retained by Ike Clanton.68

  The Earps and their friends did not take the situation lightly. They retained former Nevada congressman Thomas J. Fitch to lead the defense team. He was clearly the most distinguished attorney on either side of the case, experienced, colorful, and, at forty-three, already heralded as “the silver-tongued orator of the Pacific.” The firm of Howard & Stree
t represented the Earps, and T. J. Drum, the court commissioner who had granted Kate Elder’s writ of habeas corpus when Virgil incarcerated her for “threats against life” back in July, was hired to defend Doc. Clearly though, Fitch would manage the case and, despite possible conflicts of interest among the defendants, he would ensure that they presented a united front in the courtroom. That proved to be critical, because by the time the hearing convened, the prosecution’s strategy seemed clear and Doc Holliday was at its center.69

  The Earp brothers, particularly Virgil and Wyatt, had credible records that made it difficult to pin charges of murder on them, but a notorious gambler with a questionable record and outstanding charges against him for another violent crime was a different matter, especially in light of his public confrontation with Ike Clanton the night before the fight. At the very least, Virgil could be criticized for poor judgment in calling on Holliday to help arrest the Clantons and the McLaurys, particularly if the case could be made that he was the “loose cannon” who precipitated the fight. If the prosecution could add to that basic premise a convincing argument that the Earps lost control and made the confrontation personal, they would be in deep trouble.

  Once Ike Clanton pressed charges, Doc—and everyone else—knew that he and his reputation would be central issues in the case. An anonymous letter from Tombstone, dated November 1 and published in the Tucson Star, laid the prosecution’s strategy out clearly: “Admit the worst that can be said of these boys [the Clantons and McLaurys] as proven facts, and they stand in Angel robes of innocence as compared with the cut-throat who shot Tom McLowry [sic] with buckshot while he was protesting that he was unarmed.”70

  When the testimony began, the prosecution stressed its premise that Doc Holliday and Morgan Earp opened fire while the Cow-Boys were trying to surrender. Billy Allen and John Behan portrayed the Earps as angry and out of control, although they did not explain why. By placing the blame on Doc and Morgan and initially suggesting a case of negligence against Virgil Earp, the prosecution seemed to be following the best route to a conviction on some charge, since neither witness gave any strong evidence of premeditation on the part of the Earps. Prosecution strategy changed when William R. McLaury, the brother of Frank and Tom, arrived in Tombstone from Fort Worth, Texas, on the evening of November 3, before Behan had completed his testimony.