Following the Gunfight near the OK Corral, Ike Clanton filed murder charges against Wyatt Earp and Doc Holliday, as well as Virgil and Morgan Earp who had been wounded in the gunfight. Ike and others of ‘The Cowboy’ faction alleged that the deceased, the McLaury brothers and Billy Clanton, had complied with Marshal Virgil Earp’s command to put their hands up when Morgan, Doc, and Wyatt started firing at them. Moreover, they claimed that Billy Clanton had been unarmed at the time of the confrontation.
In a month-long preliminary hearing conducted by Judge Wells Spicer, the Earp brothers and Doc Holliday were freed by the judge for lack of evidence. Why? Primarily for two reasons.
First, several of the ‘Cowboy’ faction, including Ike Clanton, gave testimony that was either self-contradictory or inconsistent with the physical evidence. For example, the doctor who examined the bodies stated that the wounds of the dead ‘Cowboy’s could not have occurred as they did if their arms had been raised, as the Marshal had commanded and the prosecution claimed.
Moreover, under cross examination by the defense attorney, Ike, for whom mental agility had never been a strong suit, inadvertently turned out to be a valuable witness for the defense.
Second, in their defense, Holliday and the Earps had far more impartial and therefore more credible witness, particularly:
- H. F. Sills, a railroad engineer who had arrived in Tombstone only the previous day and knew none of the participants;
- Addie Bourland, a dressmaker whose shop was on Fremont Street with a full view of the gunfight; and
- Coroner Mathews, the physician who examined the bodies of the deceased.
The following is their actual testimony from court records.
H.F. Sills: [I saw] “the marshal go up and speak to this other party. I … saw them pull out their revolvers immediately. The marshal had a cane in his right hand at the time. He throwed up his hand and spoke. I did not hear the words though. By that time Billy Clanton and Wyatt Earp had fired their guns off.”
[Please state your name and occupation for the record.]
(A) Addie Bourland, a dressmaker, of Tombstone, Arizona.
(Q) [No written question.]
(A) I live on the opposite side of Fremont Street from the entrance to Fly’s lodging house.
(Q) Questioned on the difficulty.
(A) I saw first five men opposite my house, leaning against a small house [the Harwood house] west of Fly’s Gallery and one man was holding a horse [Frank McLaury], standing a little out from the house. I supposed them to be cowboys, and saw four men [the Earps and Doc Holliday] coming down the street [Fremont Street] towards them, and a man with a long coat on [Doc Holliday] walked up to the man holding the horse and put a pistol to his stomach and then he, the man with the long coat on, stepped back two or three feet, and then the firing seemed to be general. That is all I saw.
(Q) Where were you at the time you saw this?
(A) I was in my house at the window.
(Q) How long after the two parties met, did the firing commence?
(A) It was very shortly, only a few seconds.
(Q) Which party fired first?
(A) I don’t know.
(Q) Were you looking at both parties when the firing commenced?
(A) I was looking at them, but not at anyone in particular. I did not know there was going to be a difficulty.
(Q) Did you know, or do you know now, the man with the long coat on?
(A) I did not know him then. I recognize Doctor Holliday, the man sitting there writing, as the man to the best of my judgment.
(Q) Did you notice the character of weapon Doc Holliday had in his hand?
(A) It was a very large pistol.
(Q) Did you notice the color of the pistol?
(A) It was dark bronze.
(Q) Was it or was it not, a nickel-plated pistol?
(A) It was not a nickel-plated pistol.
(Q) Did you see at the time of the approach of the party descending Fremont Street, any of the party you thought were cowboys, throw up their hands?
(A) I did not.
(Q) Did you hear any conversation or exclamation between the two parties after they met, and before the firing commenced?
(A) I did not, for my door was closed.
(Q) How long did you continue to look at the parties after they met?
(A) Until they commenced to fire and I got up then and went into my back room.
(Q) What did these men that you speak of as cowboys’ first do when the other party approached them?
(A) They came out to meet them from the side of the house, and this man with the long coat on stepped up and put his pistol to the stomach of the man who was holding the horse, and stepped back two or three feet and the firing seemed to be general.
(Q) About how many shots were fired before you left the window?
(A) I could not tell; all was confusion, and I could not tell.
(Q) Were all the parties shooting at each other at the time you were looking at them?
(A) It looked to me like it.
(Q) Had any of the parties fallen at the time you left the window?
(A) I saw no parties fall.
ADDIE BOURLAND IS RECALLED BY THE COURT
Prosecutor: “The prosecution objects to the further examination of the witness Addie Bourland after she has been examined by the defense, and cross-examined by the prosecution, her testimony read to her and signed by her and not brought before the court at the solicitation of counsel on either side.
The court [Judge Spicer] voluntarily states that after recess, and the witness had retired, he went to see the witness at her house and talked with her about what she might further know about the case, and that he, of his own motion, says that he believed she knew more than she had testified to on her examination, now introduces her upon the stand for the purpose or further examination without the solicitation of either the prosecution or defense.”
[Objection overruled, and questions asked of witness by the court as follows:]
Judge Spicer: (Q) You say in your examination in chief, that you were looking at parties engaged in [the] fatal affray in Tombstone on the 26th of October last, at the time the firing commenced. Please state the position in which the party called the cowboys held their hands at the time the firing commenced; that is, were they holding up their hands, or were they firing back at the other party. State the facts as particularly as may be.
[Counsel for the prosecution objects to court questioning witness after he admits he has talked with the witness, etc., crossed out.]
(A) I didn’t see anyone holding up their hands; 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.
(Q) Did you say this morning, that you did not see who fired the first shot?
(A) I did say so.
(Q) Did you say this morning, there were two shots fired close together?
(A) I did not.
(Q) Did you say there were any shots fired at all?
(A) I did.
(Q) Did you say this morning, that when the first two or four shots were fired, you were excited and confused, and got up from the window and went into the back room?
(A) I didn’t say how many shots were fired, for I didn’t know when I went into the other room.
(Q) What conversation did you have with Judge Spicer, if any, with reference to your testimony to be given here since you signed your testimony this morning?
(A) He asked me one or two questions in regard to seeing the difficulty, and if I saw any men throw up their hands, whether I would have seen it, and I told him I thought I would have seen it.
(Q) Did you not testify this morning that those men did not throw up their hands that you saw?
(A) Yes sir, I did.
Months later, Mrs. J.C. Collier, who witnessed the gunfight from half a block away at the corner of Fourth & Fremont Streets, told a Kansas City reporter what she saw.
“[The Earps & Holliday] … approached the cowboys and told them to hold up their hands. The cowboys opened fire on them, and you never saw such shooting as followed. One of the cowboys [presumably Frank McLaury] after he had been shot three times raised himself on his elbow and shot one of the officers and fell back dead. Another [presumably Billy Clanton] used his horse as a barricade and shot under his [the horse’s] neck.” So much for the ‘Cowboy’s’ claim that Billy was unarmed.
Mrs. Collier’s statement was never a part of the official inquiry.
The Court’s Ruling
At the end of the long proceedings, Judge Spicer offered his conclusions about the matter on November 30, 1881.
He observed that the physician who examined the dead ‘Cowboys’ stated that the wounds they received could not have occurred if their hands and arms had been in the positions that prosecution witnesses had described. Moreover, he said the evidence indicated that the Earps and Holliday acted within the law and that Doc Holliday, Morgan and Wyatt Earp had been lawfully deputized temporarily by Marshal Virgil Earp.
Judge Spice continued to cite his reasons for dismissing the ‘Cowboy’s’ accusations. Witnesses for the prosecution state unequivocally that William Clanton fell or was shot at 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 afterwards.
In his written decision, Judge Spicer noted that Ike Clanton had claimed the Earps were out to murder him, yet even though unarmed the Earps had allowed him to escape unharmed during the fight. He wrote, “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.”
The judge described Frank McLaury’s insistence that he would not give up his weapons unless the marshal and his deputies also gave up their arms as a “proposition both monstrous and startling!” He noted even more inconsistencies in the ‘Cowboy’s’ testimony. For example, the prosecution had claimed that the five Cowboys’ intended to leave town, yet Ike Clanton and Billy Claiborne did not have their weapons with them. In that time and place, it would have been inconceivable for them to leave town without first picking up their guns where they had been deposited upon entering Tombstone according to local statute.
Judge Spicer scolded Virgil Earp for his poor judgment in conducting the attempted arrest, but then concluded that no laws had been violated.
“In view of these controversies between Wyatt Earp and Isaac Clanton and Thomas McLaury, and in further view of this 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, 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 due circumspection, yet when we consider the condition of affairs incidental 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 kept 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.”
Judge Spicer invited the Grand Jury to review his findings. Two weeks later, the Grand Jury concurred and refused to indict either the Earps or Holliday.
Once the Earps and Holliday were freed by the court, ‘The Cowboys’ began to seek revenge. The hearing was over, but not the killing. Click HERE to read about the bloody aftermath and the Earp Vendetta Ride.
Learn more about the sights of Tombstone on our “Things to Do in Tombstone” page. More about Tombstone’s colorful history can be found here.