Tombstone History Archives

 Chronicles of Tombstone's TurbulEnt Years

Judge Spicer’s Decision




In Justice’s Court, Township No. 1, Cochise County, A.T.

Before Wells Spicer, J.P.,

Territory of Arizona vs. Morgan Earp et al.


Defendants, Wyatt Earp and John H. Holliday, two of the defendants named in the above action, were arrested upon a warrant issued by me on the 29th day of October on a charge of murder. The complaint filed upon which the warrant was issued, accuses said defendants of the murder of Wm. Clanton, Frank McLaury and Thos. McLaury on the 26th day of last month at Tombstone, in this county.


The case has now been on hearing for the past thirty days, during which time a volume of testimony has been taken, and eminent legal talent employed by both sides.


The great importance of the case, as well as the general interest taken in it by the entire community, demand that I should be full and explicit in my findings and conclusions, and should give ample reasons for what I do.


From the mass of evidence before me - much of which is on collateral matters - I have found it necessary, for the purposes of this decision, to consider only those facts which are conceded by both sides or are established by a large preponderance of testimony.


Viewing it in this manner, I find that on the morning of the 26th day of October, 1881, and up to noon of that day, Joseph I. Clanton or Isaac Clanton, the prosecuting witness in this case, was about the streets and in several saloons of Tombstone, armed with revolver and Winchester rifle, declaring publicly that the Earp brothers and Holliday had insulted him the night before when he was unarmed, and now he was armed and intended to shoot them on site. These threats were communicated to defendants Virgil Earp and Wyatt Earp. Virgil Earp was at this time chief of police of the City of Tombstone, and charged, as such officer, by the city ordinances, with the duty of preserving the peace, and of arresting, with or without warrant, all persons engaged in any disorderly act whereby a breach of the peace might be occasioned; and to arrest and disarm all persons violating the city ordinances which declare it to be unlawful to carry on the person any deadly weapon within the city limits without first obtaining a permit, in writing.


Shortly after noon on October 26th, the defendant, Virgil Earp, as chief of police, assisted by Morgan Earp, who was also at the time a special policeman in the pay of the city and wearing his badge, arrested and disarmed said Isaac Clanton, and in such arrest and disarment inflicted upon the side of his head a blow from a pistol. Whether the blow was necessary or not is not material here to determine. Isaac Clanton was then taken to Justice or Recorder [A.O.] Wallace, when he was fined and his arms, consisting of a revolver and Winchester rifle, taken from him and deposited at the Grand Hotel subject to his order.


While at Justice Wallace’s court, and awaiting the coming of Judge Wallace, some hot words passed between Isaac Clanton and Wyatt Earp - Earp accusing Clanton of having previously threatened to take his life, and then proposed to make a fight with him anywhere, to which Isaac Clanton assented, and then declared that “fight was his racket,” and that when he was arrested and disarmed, if Earp had been a second later, “there would have been a coroner’s inquest in town.” Immediately subsequent to this, a difficulty occurred in front of Judge Wallace’s court room between Wyatt Earp and the deceased Thomas McLaury, in which the latter was struck by the former with a pistol and knocked down.


In view of these controversies between Wyatt Earp and Isaac Clanton and Thos. McLaury, and in further view of the quarrel the night before between Isaac Clanton and J.H. Holliday, I am of the opinion that the defendant 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 when 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 of feeling of insecurity that has existed; the supposed prevalence of bad desperate and reckless men who have been a terror to the country and kept away capital and enterprise, and considering the many threats that had 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.


Soon after the conclusion of proceedings at Judge Wallace’s court, Isaac Clanton and Thomas McLaury were joined by William Clanton and Frank McLaury, who had arrived in town. In the afternoon these parties went to a gunshop where they were seen by Wyatt Earp, who reported the same to Virgil Earp, chief of police, said Wyatt Earp at the time being a sworn policeman.


After this the Clantons and McLaurys went to the Dexter stables, on Allen street, and shortly after crossed the street to the O.K. Corral and passed through to Fremont street.


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 that their true purpose was, if not to attempt the death of himself and 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.


At this time Virgil Earp was informed by one H.F. Sills, engineer from the A.T.&S.F.R.R., then absent from duty on a layoff furlough, and who had arrived in town only the day before and totally unacquainted with any person in town or the state of affairs existing here, that he (Sills) had overheard armed parties, just then passing through the O.K. Corral, say, in effect, that they would make sure to kill Earp the marshal, and would kill all the Earps.


At the same time several citizens and a committee of citizens came to Virgil Earp, the chief of police, and insisted that he should perform his duty as such officer, and arrest and disarm these cow-boys, as the termed the Clantons and McLaurys.


Was it for Virgil Earp, as chief of police, to abandon his clear duty as an officer because its 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 and 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 Fremont 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 this homicide must, therefore, be determined by what occurred at the time, and not by the precedent facts.


To constitute the 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 credibility testify that deceased Wm. Clanton and Frank McLaury met the demand for surrender by drawing their pistols, and that the discharge of fire-arms was almost instantaneous. There is 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 six-shooters 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 effective use of their guns as to seriously wound Morgan Earp 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 Wm. Clanton fell or was shot at the first fire, and Claiborne says 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 would 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 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 charged with the duty of arresting and disarming brave and determined men who were experts in the use of firearms, as quick as thought and certain as death, and who had previously declared their intentions not to be arrested or disarmed. Under the statutes (sec. 32, page 74, of Comp. Laws), as well as the common law, they had a right to repel force by force.


In coming to this conclusion, I give great weight to several particular circumstances connected with the affray. It is claimed by the prosecution that the deceased were shot while holding up their hands in obedience to the demand of the chief of police, and on the other hand, the defense claims that William Clanton and Frank McLaury at once drew their pistols and began firing simultaneously with the defendants. William Clanton was wounded on the wrist of his right hand on the first fire, and thereafter used his pistol with his left. This wound could not have been received with his hands thrown up, and the wound received by Thomas McLaury was such as could not have been received with his hands on his coat lapels. These circumstances being indubitable facts, throw great doubt upon the correctness of the statement of witnesses to the contrary.


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 a 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 it was the object of the attack to kill him, 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.


I also give just weight in this matter to the testimony of Sheriff Behan, who said on one occasion, a short time ago, Isaac Clanton told him that he (Clanton) had been informed that the sheriff was coming to arrest him, and that he (Clanton) armed his crowd with guns and was determined not to be arrested by the sheriff, or words to that effect. And Sheriff Behan further testifies that a few minutes before the Earps came to them that he, as sheriff, had demanded of the Clantons and McLaurys that they give up their arms and that they demurred, as he said, and did not do it, and that Frank McLaury refused and gave as a reason that was not ready to leave town just then, and would not give up his arms unless the Earps were disarmed, that is, that the chief of police and his assistants should be disarmed.


In view of the past history of the country, and the generally believed existence at this time of desperate, reckless 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.


Another fact which rises up pre-eminent in the consideration of this sad affair, is the leading fact that the deceased from the very first inception of the encounter were standing their ground and fighting back, giving and taking death with unflinching bravery. 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.


The prosecution claims much upon the point, as they allege, that the Earp party acted with criminal haste; that they precipitated the triple homicide by a felonious anxiety and quickness to begin the tragedy; that they precipitated the killing with malice aforethought, with the felonious intent then and there to murder the deceased, and that they made use of their official character as a pretext.


I cannot believe this theory, and can not resist the firm conviction that the Earps acted wisely, discreetly and prudently 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 the 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.


It is the duty of an examining and committing magistrate in this territory to issue a warrant of arrest in the first place, whenever from the depositions given there is reasonable ground to believe that the defendant has committed a public offense. (Sec. 87, page 111, of Compiled Laws.)


After hearing evidence, however, the statute changes the rule, and he is then required to commit the defendant only when there is “sufficient cause to believe” him guilty. (Sec. 143, page 111, of Compiled Laws.)


My interpretation is, that the rule which should govern an examining magistrate is the same as that which should govern the conclusion of a grand jury. That rule as prescribed by statute (Sec. 188, page 221, Compiled Laws) is: “The grand jury ought to find an indictment when all the evidence before them taken together is such as in their judgment will, if unexplained or uncontradicted, warrant a conviction by the trial jury.”


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.


It may be that my judgment is erronious, and my view of the law incorrect; yet it is my own judgment, and my own understanding of the law as I find it laid down, and upon these I must act and decide, and not upon those of any other person.


I have given over four weeks of patient attention to the hearing of evidence in this case, and at least four-fifths of my waking hours have been devoted all this time to an earnest study of the evidence before me, and such is the conclusion to which I am forced to arrive.


I have the less reluctance in answering this conclusion because the Grand Jury of this county is now in session, and it is quite within the power of that body (if dissatisfied with my decision) to call witnesses before them or use the depositions taken before me, and which I shall return to the District Court as by law required, and to thereupon disregard my findings and find an indictment against the defendants if they think the evidence sufficient to warrant a conviction.


I conclude the performance of the duty imposed upon me by saying, in the language of the statute, “There being no sufficient cause to believe the within named” Wyatt S. Earp, and John H. Holliday, “guilty of the offense mention within,” I order them to be released.


Wells Spicer, Magistrate

December 1, 1881


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