Judge Wells Spicer

Decision of Judge Wells Spicer after the  Preliminary  Hearing in the Earp-Holliday Case

November 30, 1881

Territory of Arizona

Morgan Earp, et al Defendants

 Defendants Wyatt Earp and John Holliday, two of the defendants named in the above entitled 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 this warrant was issued, accuses said defendants of the murder of William Clanton, Frank McLaury, and Thomas McLaury on the 26th day of last month, at Tombstone, in this County.
This 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 on both sides.
The great importance of the case, as well as the great 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-much of which is upon collateral matter-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 or fight them on sight. These threats were communicated to defendants, Virgil Earp and Wyatt Earp.
Virgil Earp was at this time the chief of police of Tombstone and charged as such officer by the city ordinance with the duty of preserving the peace, and 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 ordinance which declares it to be unlawful to carry on the person any deadly weapon within the city limits, without obtaining a permit in writing.
Shortly after noon of October 26th, 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 a badge, arrested and disarmed said Isaac Clanton, and in such arrest and disarmament, inflicted upon the side of his head a blow from a pistol-whether this blow was necessary is not material here to determine.
Isaac Clanton was then taken to Justice or Recorder Wallace, where 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 orders.
While at Justice Wallace's court and awaiting the coming of Judge Wallace, some hot words passed between Isaac Clanton and Wyatt Earp. Earp accused 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 courtroom, 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 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 conditions 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 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 consider 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.
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 [the] gun shop, where they were seen loading their guns and obtaining cartridges. These proceedings 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 [and from information of threats that day given him, his belief was reasonable], that their purpose was, if not to attempt the deaths 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, an engineer from the A. T. & S. F. R. R., then absent from duty, on a lay-off 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. 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 Earp.
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 the cowboys, as they termed the Clan tons 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 persons to arrest and disarm these men?
There can be but one answer to these questions, and that answer is such as will divest the subsequent approach of the defendants toward the deceased of all presumption of malice or of 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; and 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 they believed to be armed and contemplating resistance.
The legal character of the 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 also the felonious intent. In this case, the corpus delicti or fact of killing is in fact admitted as well as clearly proven. The felonious intent is as much a fact 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 William Clanton and Frank McLaury met the demand for surrender by drawing their pistols, and that the discharge of firearms from both sides 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 Clan tons 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 criminated.
It is beyond doubt that William Clanton and Frank McLaury were armed, and made such quick and effective use of their arms 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 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.
Addie Bourland, 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, on the approach of the Earps, and that no hands were held up; that she could have seen them if there had been. Sills asserted that the firing was almost simultan­eous. I could not 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 Earp, that their demand for 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 armed and determined men who were expert in the use of firearms, as quick as thought and as certain as death and who had previously declared their intention not to be arrested nor disarmed. Under the statutes [Sec. 32, page 74 of Compo Laws], as well as the common law, they have a right to repel force with 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 of the command 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 the right hand on the first fire and thereafter used his pistol with his left. This wound is such as 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 [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, [on] account of the great fact, most prominent in this 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 the first to fall; but, as it was, he was known or believed to be unarmed, and was suffered and, as Wyatt Earp testified, told to go away, and was not harmed.
I also give great weight in this matter to the testimony of Sheriff Behan, who said that 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 testified that a few minutes before the Earps came to them, that he as sheriff had demanded of the Clan tons 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 he 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 county and the generally believed existence at this time of desperate, reckless and lawless men in our midst, banded together for mutual support and living by felonious and predatory pursuits, regarding neither life nor property in their career, and at the same time for men to parade the streets armed with repeating rifles and six-shooters and demand that the chief of police 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 that rises up preeminent in the consideration of this said 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 their 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 intent then and there to kill and murder the deceased, and that they made use of their official characters as a pretext. I cannot believe this theory, and cannot resist the firm conviction that the Earps acted wisely, discretely and prudentially, to secure their own self preservation. They saw at once the dire necessity of giving the first shots, to save themselves from certain death! They acted. Their shots were effective, and this alone saved the Earp party from being slain.
In view of all the facts and circumstances of the case, considering the threats made, the character and positions of the parties, and the tragic results accomplished in manner and form as they were, with all surrounding influences bearing upon resgestae of the affair, I cannot resist the conclusion that the defendants were fully justified in committing these homicides-that it is 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 Compo 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 Compo Laws].
My interpretation is that the rule which should govern an examin­ing magistrate is the same as that which should govern the conclusions of a Grand Jury. That such as prescribed by statute [Sec. 188, page 121 of Compo 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 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 rule of law applicable thereto given them by the court, find the defendants guilty of any offense.
It may be that my judgment is erroneous, 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 this I must act and decide, and not upon those of any other persons. 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, at 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 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 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 this 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 mentioned within. I order them to be released."
[Signed] Wells Spicer, Magistrate
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