The prosecution called Cy Allen as a rebuttal witness, and he testified flatly, “I took Billy Allen home. He had no pistol. His pistol was behind the bar in the saloon at the time of the shooting.” He insisted that he told Faucett to tell Billy Allen not to cause any trouble and that in a later conversation Allen told him that he was not looking for trouble. “He said he would go in, but just to tell Doc. he didn’t want any trouble.” This was powerful, potentially damaging, and perhaps the most compelling testimony presented against Doc.98
With Allen’s testimony fresh in the judge’s mind, Prosecutor Franklin presented closing arguments for the prosecution. Doc’s attorney, Fishback, then delivered on Doc’s behalf “one of the finest speeches ever delivered by that eloquent gentleman,” followed by Rice, who spoke for half an hour on the right of a man to defend his life. He pointed out that Holliday had stayed in his room to avoid trouble, that he had tried to find a police officer to protect him, and that Billy Allen was a dangerous man. He concluded by saying that a jury could not be found in Lake County that would convict Holliday on the evidence presented. District Attorney Kellogg spoke last, arguing that Doc’s act was premeditated, that it was not self-defense, and that the prosecution had a strong case. Judge Old apparently thought that the district attorney was right, because he bound Holliday over for trial in the criminal court and raised his bail from $5,000 to $8,000.99
The judge’s decision was not popular, but the Daily Democrat gave a perceptive analysis of the situation:
After the decision of the court was made it received some criticism from those illy posted in the law. The judge, when approached by one of these prejudiced individuals, stated the fact, which should be evident to all, that he had nothing to do with anything but the law in that case, whatever his opinion might be as to Holliday’s moral guile. The evidence was clear that he had shot Allen, and that it was not in self-defense, for Allen had made no break for him, and until he did so, Holliday was not legally justified in shooting, whatever previous provocation he may have had in the way of insult or even threats, so long as no move was made to execute the latter.
The public sentiment, however, which has nothing to do with the law, is largely in favor of Holliday. His friends were making every effort, up to a late hour last night to secure bondsmen for him, the trouble not being that there was any lack of those willing to guarantee his appearance when wanted, but the difficulty in finding moneyed men, on short notice, ready to come to the front. Holliday has been, without doubt, an abused individual. The manlier class of the community not only appreciate this, but have little criticism to make as to his action in connection with his trouble with Allen, for whatever the latter’s intentions may have been, Holliday had reasons, whether or not they are good in law, for believing that past persecutions were to be concluded by a violent assault.100
When the judge increased Doc’s bail to $8,000 and remanded him to jail, however, he created problems for Doc of a more serious nature than was immediately realized. On August 27, Doc still did not have bondsmen, and he was still in jail. This raised concern about Doc’s health. One reporter observed, “Should Holliday be obliged to remain behind bars up to the day of his trial it would probably go very hard with him, as his constitution is badly broken and he has been really sick for a long time past.”101 The judge soon agreed to reduce the bail to the original figure of $5,000 in consideration of Doc’s poor health. However, at that point, for reasons never explained, Sam Houston withdrew as a bondsman, so that the process was delayed further.
On September 2, the Democrat reported that “[f]rom the appearance of things, Doc Holliday’s case will come up inside of fifteen days, before the criminal court, if he cannot give bond; his friends desire to [illegible] as soon as possible so as to keep him in jail the shortest time. The case will certainly excite a great deal [of] interest when it comes up.” The next day the paper announced that “[s]trenuous efforts are still being made to secure Holliday’s bond.” As late as September 6, the belief was that “[i]t now seems to be a sure thing that Doc Holliday will stay in jail until the day of his trial.”102 By then, however, the bond situation had been worked out. Papers were filed on September 5, naming John Morgan, W. E. Reed, John H. Hillary, and L. H. Carland as sureties in the case.103 On September 7, the public learned that “Doc Holliday is at liberty again. He was finally released on bond last evening, and was about the streets today, the cynosure of all eyes.”104
The trial was set for the December term of court. On September 9, the Democrat reported, “Doc Holliday expresses the utmost confidence over the result of his case. He is busy looking up testimony.”105 The weeks passed quietly enough as Doc worked with his attorneys on his defense.
In the meantime, Billy Allen was on the road to recovery. He was again on the streets as early as September 1, prompting the observation that he is “one of the most active, agile, and powerful men in the city. To this he doubtless owes his swift convalescence.” He told reporters, “That he did not desire to speak of the Holliday case, and had not yet determined what he would do.” Many thought he would drop the case, “as he has thus far showed no desire to prosecute.” He told the Chronicle he was still suffering a lot of pain, and added, “I have no control over the arm whatever, and not a particle of pulse can be felt in it. As far as use is concerned the limb is just as good as dead to me.” A short time later, he left town for a while “to recover from the effects of Holliday’s shot.”106
That fall, a report circulated in Arizona that Doc had shot a policeman named Patrick A. Kelly, but it was a confused account of the Allen shooting, and Kelly was still on the force at Leadville unscathed.107 In fact, he would soon replace Faucett as Leadville’s marshal.
On October 26, Doc inadvertently caused a small stir when he appeared at the train station to observe the High Line’s inaugural run as a section of the Union Pacific. He caused some consternation and considerable comment among passengers who were on an excursion train to Breckenridge, although the train departed on schedule and Doc was left behind still on his best behavior.108
As it turned out, according to the Chronicle, when the excursionists boarded the train at Breckenridge for the return trip, they encountered a “crowd of drunken bloods” and a “dangerous gambler” who created some excitement for the travelers. The “bloods” were rowdy and mischievous, but not particularly dangerous; the gambler, who “was drunk and gloried in it, seemed to wish to make himself conspicuous as a desperado.” When a political discussion grew somewhat heated, he “chipped in,” drew a gun, “variously described as from nine inches to three feet in length, cocked it, and laid it across his arm, ordering everybody to leave the car.” Most of the passengers followed his orders at once, but a small boy “who thought he would stay to see it out, had the cocked pistol pressed against his body to accelerate his movements.”109 The unnamed gambler’s behavior soon made the passengers forget about the “notorious” Doc Holliday.
After the shooting, Billy Allen had the good sense to dissociate himself from the Slopers, who were out to get Doc. He insisted throughout that he was not part of a conspiracy. In fact, after an initial attempt on the part of the Sloper crowd to stir up trouble against Doc’s “element,” Johnny Tyler and the rest quietly retreated from view. Allen decided to prosecute Doc, despite efforts of the friends of both men to quietly resolve the matter. It was fair to say that they “did not entertain the most brotherly feeling toward each other.”110
On December 15, Judge George Goldthwaite convened the criminal court and scheduled Case No. 258, The People v. John H. Holliday, for trial on Tuesday, December 23, at ten o’clock in the morning, but on December 18, Doc’s counsel requested a continuance. Doc, “clad in a huge camel’s hair overcoat,” sat near his attorney, showing evidence again of the effects of the high country winter on his health. “The motion was vigorously opposed by District Attorney Kellogg,” the Chronicle reported, but “the court reserved his decision until Saturday morning. On Satu
rday, December 20, Judge Goldthwaite granted the motion and set the trial for the spring term in 1885.111 Doc’s roommate was lauded in the press the next day with the statement that “Frank Lomeister sticketh to his friends closer than a brother.”112 The attention of the public was soon absorbed in several ore-stealing cases, and Doc received a brief respite.
Doc’s health even improved slightly, along with his luck. He was a guest at the first dance sponsored by the Miner’s Union on the night of February 27, 1885. The crowd enjoyed an “elegant” supper, an excellent orchestra, and an evening of dancing. According to the Chronicle, “Everything went off harmoniously and all agreed that the ball was a signal success.”113 Also at the end of February, the partnership of A. E. Scott, Cy Allen, and Tom Duncan took over the management of the Opera House Club Rooms at 308 Harrison, which was part of the Tabor Opera House.114 There were still little things that galled Doc, but he had little time to worry about them. “Every effort was made to compromise the matter before it reached the courts,” a Denver paper would report, “but Allen stood firm for the prosecution.”115 Doc’s trial was at hand.
The trial itself, which convened on March 21, 1885, was anticlimactic. J.W. Taylor and Scott Ashton had replaced Fishback and Rice as Doc’s attorneys, and Kellogg was assisted by A. Danford and W. H. Dunfield for the prosecution. The lawyers haggled over motions for a while, and considerable time was spent before a jury could be empaneled. Danford opened by declaring that the evidence would show that Holliday had made “frequent threats” to kill Allen, that Allen had not seen Holliday on the day of the shooting until the shooting occurred, and that Allen gave Holliday no cause to fire, entering the saloon “in a quiet and peaceful manner.” He read the definition of the crime of assault with the intent to kill and stated that if the jury accepted his propositions, it would be justified in convicting Holliday.
The defense responded that if the evidence proved the prosecution’s case, then, of course, the jury should convict, but, he said, the testimony would not sustain such a scenario. Instead, the evidence would show that “on account of a financial transaction,” Allen had promised to kill Holliday and walked the streets “carrying a deadly weapon” with the intent of carrying out the threats. Holliday had talked with the authorities about the threats and asked for protection. Furthermore, he told the jury that Holliday had been repeatedly informed by friends that Allen was looking for him and would kill him. As a result, the defense argued, Holliday would be justified in “taking a gun and killing Allen.”116
Billy Allen was the first witness called, and he gave his first detailed public statement of what happened since the shooting:
[H]e said that on the 19th of August last he was at his room until about 4 o’clock P. M. when he came down town, and after getting some tickets to go to the theatre, went to the Monarch saloon, where he was tending bar; from the Monarch he went into Hyman’s, and had no sooner got inside the saloon than some one began shooting at him; after the first shot he turned to run out the door, and saw Holliday leaning over the show case with a revolver pointed at him; before he got out the door he slipped and fell, and as he rose, with his hands on the floor, a second shot struck him in the right arm below the shoulder, the effect of the wound was to paralyze the arm, and to disable him for a long time; for two weeks he was confined to his bed, and two months elapsed before he could do any work.
Allen swore that “he had no particular object in going to Hyman’s at the time and did not know Holliday was in there.” Under cross-examination, the defense asked if he had not threatened to kill Holliday, which led to an argument over whether the question was proper, with the prosecution saying that the direct testimony did not lay a basis for this improper cross-examination. The court eventually allowed it, and Allen proceeded to deny systematically virtually all the testimony in the preliminary hearing witness by witness.117 The tactic of denying the existence of a confrontational situation between him and Holliday basically backfired when the prosecution’s own witnesses reasserted many of the points Allen had denied. Marshal Faucett testified that “Holliday seemed to think Allen was hunting for him with a gun….[H]e said that he carried no gun; he had been frequently searched for one, but the boys had never found one upon him.”118
The defense’s case was largely a replay of the preliminary hearing with the addition of other witnesses. Edward Donnell even claimed that after the confrontation between Allen and Holliday earlier at the Monarch, Allen had told him that “he had taken a revolver away from Holliday and one of his friends and pawned it.”119 If this was true, it was virtually an admission that Allen had recovered his five dollars before the shooting. After a number of witnesses appeared, Doc took the stand. He gave his version of the shooting and justified his actions on the basis that he thought his life was in jeopardy. He also recounted some of “the stirring events of his life.”120 Officer Charles Robinson was then recalled to rebut Allen’s denial that he had told Robinson to search Holliday for weapons, after which Allen was recalled to rebut Donnell, and court adjourned while the judge gave instructions to the jury.
Taking a somewhat unusual approach, Judge Goldthwaite presented instructions prepared by both the prosecution and the defense as part of his presentation. The key point of the prosecution was that “mere threats alone of personal violence will not Justify the person threatened with taking the life of the person making the threats.” The defense emphasized that “it is not necessary in this case for the defendant to prove that William Allen, the prosecuting witness, actually had a deadly weapon at the time of the shooting. It is sufficient if the defendant had reason to believe that he had one: and if the Jury find from the evidence that the defendant so believed at the time he fired at the said Allen you must acquit him.” The defense also reminded the jury that the law did not require “that Holliday should avoid Allen.” The judge presented the arguments of both sides on points of law and added a few remarks that took no stance as to Doc’s guilt or innocence.121
The judge then advised the attorneys that they would be limited to one hour for each side to present their arguments and then adjourned until seven o’clock in the evening. The lawyers proceeded with no surprises. When they were through, “The court room was then cleared for the purpose of allowing the jury to deliberate, and after a very short time the verdict of acquittal was rendered.” Doc was once again a free man.122
The defense had been able to show that even some of the prosecution witnesses were sympathetic to Doc and had built a strong case that even if Allen was unarmed, his threats justified Holliday’s shooting him. Doc was acquitted not because his counsel proved that Billy Allen was gunning for him with the intent to kill him, but because the jurors were convinced that Doc believed that Allen was on the prod with the intent of doing him bodily harm. Allen may well have been unarmed when he entered Hyman’s Saloon that afternoon, but Doc did not know that, and given the web of rumors and reports that had kept Harrison Avenue abuzz for several days before the shooting, Allen’s true intent—whatever it was—became irrelevant. John Henry was convinced that he had done everything he could do avoid trouble, but when Billy Allen stepped through that door, he was also convinced that he had to defend himself. And Leadville agreed, with the jury affirming the “no duty to retreat” doctrine, plainly and simply.123 Moreover, Allen apparently never got his five dollars.
The Billy Allen case dispelled two of the most common interpretations of Doc Holliday’s character and personality: that he wanted to die and that he was a mean-spirited, obnoxious drunk whom nobody liked. Of course, it is possible that his view of life changed as death approached, but his conduct throughout his Leadville years revealed a man clinging tenaciously to life. Moreover, he received an astonishing amount of public support in a case in which his opponent was a local man who was respected and liked in the community. There was none of the fatalism that later writers would attribute to him, none of the brash temptations of death with other men that legend makers would celebrate. Nor
was there evidence at Leadville that he was a social pariah. In his last pitiable, if not pitiful, gunfight, he aroused more sympathy than disgust, more admiration for his fortitude than disdain for his weakness.
Doc Holliday was not run out of Leadville after the Billy Allen case as some of his biographers have alleged. Sentiment and family tradition do suggest that he may have left Leadville shortly after his acquittal, however. In mid-April, Doc’s father traveled to New Orleans to attend a reunion of Mexican War veterans. W.A. “Zan” Griffith, a young resident of Valdosta who had visited Doc in the West, accompanied the aging Henry Holliday on the trip, and later recalled that Doc met them in New Orleans. Griffith said that he was present at the meeting of father and son and that they sat up most of the night talking. Major Holliday tried to persuade his son to return to Georgia. Doc would not agree, but they parted on good terms, according to Griffith, having laid to rest some of the issues between them.124
William Alexander “Zan” Griffith, a Georgian who visited Doc in the West and escorted Doc’s father to New Orleans in 1885 to attend a convention of Mexican War veterans and a reported reunion with Doc. He lived out his life in Valdosta, Georgia, where he told others of his friendship with Doc.
Earlier that month, from April 1 to 4, Robert Alexander Holliday, Doc’s cousin “Hub,” with whom he once had planned to go into practice, attended the Southern Dental Association meeting at New Orleans. He was the recording secretary for the association and the chairman of the publications committee. Some biographers have speculated that Doc visited him, but given the dates of Doc’s trial and the association meeting in New Orleans, they could not have met unless Hub stayed in New Orleans until his uncle Henry, Doc’s father, arrived. The World Exposition was in New Orleans at the time, and Doc could well have slipped into the city without much notice. Although no firm confirmation has been found that Doc met either his cousin or his father, Griffith’s confirmation of family stories makes it likely that Doc did visit his father. The stories have a certain sentimental appeal in any case.125
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