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Murder in Tombstone

Murder in Tombstone: The Forgotten Trial of Wyatt Earp

Steven Lubet
Copyright Date: 2004
Published by: Yale University Press
Pages: 276
https://www.jstor.org/stable/j.ctt1njmff
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  • Book Info
    Murder in Tombstone
    Book Description:

    The gunfight at the OK Corral occupies a unique place in American history. Although the event itself lasted less than a minute, it became the basis for countless stories about the Wild West. At the time of the gunfight, however, Wyatt Earp was not universally acclaimed as a hero. Among the people who knew him best in Tombstone, Arizona, many considered him a renegade and murderer.

    This book tells the nearly unknown story of the prosecution of Wyatt Earp, his brothers, and Doc Holiday following the famous gunfight. To the prosecutors, the Earps and Holiday were wanton killers. According to the defense, the Earps were steadfast heroes-willing to risk their lives on the mean streets of Tombstone for the sake of order.

    The case against the Earps, with its dueling narratives of brutality and justification, played out themes of betrayal, revenge, and even adultery. Attorney Thomas Fitch, one of the era's finest advocates, ultimately managed-against considerable odds-to save Earp from the gallows. But the case could easily have ended in a conviction, and Wyatt Earp would have been hanged or imprisoned, not celebrated as an American icon.

    eISBN: 978-0-300-12924-3
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. 1 Slap Leather
    (pp. 1-6)

    In American popular culture there may be no more enduring character than the western gunfighter. Popularized in dime novels, glamorized in Hollywood films, and serialized on television, his image is nearly synonymous with the frontier itself. Often a hero, sometimes a villain or outlaw (not at all the same thing), and lately an enigma or cynic, he is always quick on the draw—ready to stand his ground and shoot it out.

    The gun duel has its own legendary structure. Armed men face each other on a dusty street, weapons holstered but trigger fingers taut. They stand ready, hands poised,...

  4. 2 From Dodge City to Tombstone
    (pp. 7-26)

    Wyatt Berry Stapp Earp headed west for the Arizona Territory in late 1879, with no reason to expect that his exploits in Tombstone would eventually establish him as one of the most famous frontier marshals in American history. For most of the previous four years he had worked as a deputy marshal or policeman in several Kansas towns, but his career as a lawman had an on-and-off quality. He was terminated amid controversy from his first full-time job in Wichita, and he served three different terms in Dodge City, interrupted by his efforts to find more lucrative opportunities in places...

  5. 3 Prelude to a Gunfight
    (pp. 27-43)

    The first confrontation between the Earps and the Cowboys came in the summer of 1880 when six mules were stolen from Camp Rucker, a U.S. Army outpost not far from Tombstone. Lacking authority to search private property, Lieutenant J. H. Hurst sought assistance from Virgil, the deputy federal marshal for the region, who enlisted Wyatt and Morgan to help track down the thieves. Acting on a tip, the posse rode to the McLaury ranch on the Babacomari River, where they found the mules, as well as a branding iron that was used to change “US” to “D8” on the mules’...

  6. 4 Thirty Shots in Thirty Seconds
    (pp. 44-56)

    By the fall of 1881, all three of the Benson stage robbers were dead. Bill Leonard and Harry Head were dispatched by the equally illfated Haslett brothers, and Jim Crane was later killed by Mexican troops in the Guadalupe Canyon massacre, along with Old Man Clanton and several other rustlers. Wyatt Earp’s deal with Ike Clanton never amounted to anything. It probably would have been forgotten without further incident if Ike had been able to keep his mouth shut. Instead, it became the catalyst for a gunfight.

    At age thirty-three, Joseph Isaac “Ike” Clanton was the oldest son in a...

  7. 5 Invitation to an Inquest
    (pp. 57-70)

    If the day’s newspapers brought the Earps a sense of relief, they would quickly realize that their difficulties were far from over. Tombstone was a rugged place, so hardened to occasional shootings that theEpitaphran a regular feature called “Death’s Doings.” But the town had never before experienced anything like a pitched battle in the street—in broad daylight and in front of scores of bystanders. The florid first sentence of theNugget’s story underscored the impact of the gun-fight on the community’s sensibilities: “The 26th of October, 1881, will always be marked as one of the crimson days...

  8. 6 Judge Spicer’s Court
    (pp. 71-83)

    The hearing before Judge Wells Spicer could well have been a quick and tidy matter, leading to a nearly foregone conclusion. The court’s only job was to determine whether a “public offense [had] been committed” and if so, whether there was “sufficient cause to believe the defendant[s] guilty thereof.” The legal standard—“sufficient cause”—was minimal, since the only purpose of the hearing was to decide whether the case warranted further proceedings. Even the Arizona statutes anticipated that the hearing would be relatively brief and completely straightforward, providing that “the examination must be completed at one session, unless the magistrate...

  9. 7 “I Don’t Want to Fight”
    (pp. 84-104)

    The first legal issue to come before Judge Spicer was the question of bail for Wyatt and Doc. (Virgil and Morgan were still incapacitated from their wounds, so they were not expected to attend court and they were not required to post bond.) Spicer initially “denied bail as a matter of right,” which was appropriate in a capital case. Relying on his statutory discretion, however, “upon a showing of facts by affidavits,” the judge granted bail to the two defendants in the amount of ten thousand dollars each. At that point, the prosecution might have requested a further hearing under...

  10. [Photographs]
    (pp. None)
  11. 8 “I Think We Can Hang Them”
    (pp. 105-134)

    Will McLaury was raised in Iowa, but he moved to Texas after the Civil War. Although a Republican and a northerner, he managed to establish a successful law practice by entering into partnership with Captain S. P. Greene, a former officer in the Confederate Army. But political parties were the farthest thing from Will McLaury’s mind when he arrived in Tombstone. He did not care whether the Earps were Republicans, Democrats, Know-Nothings, or Whigs. He wanted vengeance for his two brothers, who “were very dear to me, and would have walked through fire for me.”¹

    McLaury was sworn in as...

  12. 9 “In Defense of My Own Life”
    (pp. 135-155)

    In theory, the defendants were not required to present a case before Judge Spicer. The purpose of the preliminary examination was to test the sufficiency of the prosecution evidence, not to resolve disputed facts. The defense, therefore, might have chosen to remain silent, calling no witnesses and simply arguing that the prosecutors’ case was inadequate. That approach, however, almost certainly would have resulted in a finding against the Earps. As much as the prosecution had been damaged by Tom Fitch’s cross examinations and Ike Clanton’s fantasies, the core of the case remained relatively persuasive, at least for the purpose of...

  13. 10 “I Want Your Guns”
    (pp. 156-178)

    Hoping to capitalize on the momentum created by Wyatt Earp’s compelling soliloquy, the defense called two witnesses to corroborate key elements of his testimony. For one of the few times during the hearing, however, Tom Fitch’s advocacy fell short.

    As a neutral witness, saloonkeeper Robert Hatch could have provided powerful support for Wyatt’s testimony, as was certainly expected when he took the stand. Hatch candidly admitted, however, that his view of the events was often blocked and that his account was therefore incomplete. Hatch testified that he saw Billy Clanton shooting his pistol, but only after three or four shots...

  14. 11 Decision
    (pp. 179-202)

    Judge Spicer’s job would have been easier if the case before him had been a full trial, where he had to decide the guilt or innocence of the defendants. After Ike Clanton’s implosion and Wyatt and Virgil’s forceful testimony (not to mention the surprise appearance of H. F. Sills), the evidence surely allowed the court—especially this court—to find reasonable doubt that the Earps committed premeditated murder. But Spicer was not the ultimate fact finder, and the law did not permit him to make that determination, which essentially would have substituted his own judgment for that of a jury....

  15. 12 Aftermath
    (pp. 203-223)

    Wells Spicer was keenly aware that his decision in favor of the Earps would outrage a considerable segment of Tombstone and Cochise County society. Making a game effort at advance damage control, his written opinion acknowledged that “it may be that my judgment is erroneous, and my view of the law incorrect.” Should that be the case, he continued, “I have the less reluctance in announcing 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...

  16. Notes
    (pp. 224-232)
  17. Bibliography
    (pp. 233-243)
  18. Acknowledgments
    (pp. 244-244)
  19. Index
    (pp. 245-253)