Epitaph (56 page)

                             
General William T. Sherman has requested authority from the U.S. and Mexican governments to cross the border to pursue, capture and arrest Cow Boys and bring an end to this scourge, but the
Posse Comitatus
law renders our government powerless to prevent these marauders from using the mountains and desert of southeastern Arizona as their asylum. No one in Washington seems to understand the need for action.

He read no more. The words seemed to pass beneath his eyes without sinking into his mind. And anyway, the Cow Boys were of no interest. His brothers were alfalfa farmers, not cattlemen.

ON THE SECOND OF NOVEMBER
, suffering from a head cold that mercifully explained his red eyes and swollen nose, Will McLaury climbed down stiffly from the stagecoach, collected his bags, and trudged into the Grand Hotel. Tired and sick as he was, he knew he would not rest until he'd seen his brothers' graves.

“Can you tell me where Tom and Frank McLaury are buried?” he asked the desk clerk, whose eyebrows had risen when he'd seen the new guest's signature.

“You passed it on the way in, Mr. McLaury. I'm sorry for your loss.
The cemetery is about a quarter of a mile back on the Benson road.”

It felt farther. Uphill, with a frigid wind pouring down out of the highlands that surrounded the town. The grave was easy to pick out. Freshly mounded, with a single plank marker that served for both boys.

FRANK AND TOM McLOWRY

Murdered in The Streets of Tombstone.

O
CTOBER
26, 1881

The name was spelled wrong. That was what he noticed first. It took a moment before another word registered.
Murdered.

“D'you know them?” someone asked.

Startled, he took a step back and nearly fell. When he caught his balance, he saw two men sitting on the ground. Empty whiskey bottles nearby. Another bottle, half full, passing between them.

“My brothers,” he said. “My little brothers.”

“Drink? You look like you could use one.”

The man who offered the bottle would have been handsome, if not for his eyes. They were the eyes of a drunk, half-hidden under lazy lids, but there was something else about them that gave Will pause. Still, he took a pull, coughed, and handed the bottle back. “Who killed them?”

The dry, unblinking eyes flickered with amusement. “Tell him, Ike.”

The second man—Ike—showed enough emotion for the pair of them. “Doc Holliday and the Earps,” he said, breaking down. “They killed my little brother, Billy,” he said, pointing at another fresh grave. “And Holliday killed my daddy, too.”

JOHN RINGO AND IKE CLANTON
walked with him back to the Grand Hotel, telling the whole story along the way. Will McLaury was a sick and exhausted man, barely able to think, but he could not sleep after what he heard and spent the whole of his first night in Tombstone pouring his outrage into letters to his parents, his sisters, his law partner.

“The cause of Frank and Tom's death was murder,”
he wrote over and over.

Some time ago
Holliday,
one of the murderers, attempted to rob the strongbox of Wells Fargo & Co. and in doing so shot and killed the driver and a passenger. The other parties engaged in the murder of Thomas and Frank, the
Earp brothers,
were also part of the attack on the coach. Young Bill Clanton, a boy 18 years, knew the facts about the attempted robbery. He told his brother J. I. Clanton, and Tom and Frank as well. They had the facts for a prosecution of Holliday and the Earp Bros., and Holliday had information of that. He and the Earps killed Tommy and Frank and young Clanton to keep this matter of the robbery quiet.

There will be an indictment against Holliday and I think two of the Earps for the stagecoach murders and attempted robbery, and they will be hanged one day for murdering Tom and Frank and young Clanton. Even after he was mortally wounded and
lying on the ground,
Frank raised on his elbow and fired several shots wounding three of the murderers. Two of the scoundrels are hurt badly, but Wyatt Earp and Holliday walk the streets heavily armed. They have cowed those who might testify against them. The town's people are in Sympathy with us but only
ranchmen
dare come forward to give any information in court.

I will see to it that Holliday and Earp are jailed lest important witnesses Isaac Clanton and William Claiborne be killed before they can tell the truth of this in court. The men who killed Tom and Frank will be
punished.
I regard it my
Duty
to see that these brutes do not go unwhipped by Justice. I will join the prosecution and I think I can hang them. I could put an end to this myself, with a knife or a gun. I cannot afford to do it nor can I conspire at it, but this thing has aroused all the Devil that is in me.

W. R. McLaury

OUT ON BAIL
during the preliminary hearing, Wyatt Earp felt like a caged bear in a carnival: half-feared, half-pitied. There were stares and catcalls whenever he left the hotel room he shared with Josie. Most days he spoke only with Tom Fitch. Sometimes he went to visit Virg and Morgan. He wasn't exactly welcome when he did. Like Kate Harony, Lou and Allie suspected that Wyatt was to blame for what happened and they weren't wrong, though they couldn't have said exactly how—not yet.

Now it was all going to be made public, and he needed Morgan's help.

“I'm sorry, Lou,” he said, standing on their veranda. “I gotta talk to him.”

“Wyatt, can it wait? He's not feeling well—”

“I'm awake,” Morg called. “C'mon in, Wyatt.”

Lou left them alone. Wyatt stood in the bedroom door for a moment, a sheaf of paper in his hand, trying not to let his surprise show. It had only been a few days since he'd looked in, but the change in Morgan was startling.

“I know,” Morg said. “I look like hell.” Thin-faced, unshaven, feverish. “At least I'm not as skinny as Doc yet.”

It was an attempt at humor. Wyatt tried to smile.

“They're gonna have to cut again,” Morg told him wearily. “Some of that goddam shirt is still inside somewheres. Sit down. How's the hearing going?”

“Good, I guess. Fitch is tying them up in knots, objecting all the time, just to throw everybody. He's letting the prosecution witnesses talk, but then he compares that to what they said at the inquest. The stories keep changing, so he keeps asking questions until they say, ‘I don't know' or ‘I guess I was wrong about that part.'” Wyatt held up the papers in his hand. “Morg, when the prosecution's finished, Fitch is gonna call on me. I'm supposed to read all this in court.”

“Jesus,” Morgan said. “That's a lot.”

“That's what I told him. Fitch says it'll help if we have one story. Not dozens, like the other side. He wrote it up, but I have to read it.”

“Lemme see.”

Morg had to keep his elbow down on the bed so he wouldn't move his shoulder, and he had to hold the papers up in his hand, trying not to move his head much because that pulled on his shoulders, too. Every now and then, as he read, he'd stop to ask a question, like “Why'd you hit Tommy McLaury that morning?”

“Doesn't matter anymore.”

“He say anything about Lou? Goddammit, I told him—!”

“No! No. It was just . . . The McLaurys had been listening to Ike. One of them repeated something behind my back, and I was tired of the guff. I hit the nearest. Might've been Frank who said it, but I guess I hit Tom. Hard to tell 'em apart.”

“Yeah,” Morg said. “Same as us, I guess.”

He went back to reading, but about halfway through he started to frown, and when he was done, he looked troubled. “Wyatt, this ain't how I remember it. I told Fitch it was Doc who— He was standing behind me, see? When he cocked the shotgun, I thought he saw somebody make a move, so I—”

“Shut up!”

Morg blinked.

“Morgan,” Wyatt said carefully, “the way you remember it could get you hanged.”

There was a long silence.

“I don't know, Wyatt,” Morg said finally. He let the papers drop to his lap and laid his head back against the pillows. “I don't know. I gotta think about this.”

BUT WYATT DIDN'T HAVE TIME
for Morgan to think. He had to learn the whole piece by heart. He had to sound convincing. The story had to be specific, logical, and complete, Fitch said. Otherwise, this thing could go to trial, and if it did, Morgan would pay the price for Wyatt's mistakes.

Reading printed stuff was hard, but this was in Fitch's handwriting,
with curlicues and flourishes and what all. Knowing that the task was beyond him, he left Morg's house and went back to his room at the Cosmopolitan, ignoring the jeers and hard looks. Who else could help, if not Morgan? Doc was hardly speaking to him. Virgil and James had always made fun of him for not being able to read very well, but if they understood how important this was—

He opened the door to his hotel room. Josie was in bed.

With a book.

He hated to admit any kind of weakness, especially to her, but when he stammered it out, she didn't sneer or mock him or act shocked or anything.

“Lots of people have trouble reading. Maybe you just need spectacles. Oh, Wyatt, you'd look so distinguished in spectacles!” she cried.

He thought his heart would burst, though he didn't quite know why. “I'm pretty sure my eyes are fine.”

“Well, we'll take you to an optometrist when this is all over, just to make sure. In the meantime? This'll be just like learning a piece for the theater.”

She rewrote the pages so they were printed plainly, underlining important words or writing them big, so he could keep track of where he was in the story. “You have such a good memory!” she'd say when he got a stretch of words down pat. She believed he could do this. She believed every word in the statement. She believed in
him
.

Once, he tried to tell her the truth, but she waved his scruples off.

“Oh, Wyatt, it's not lying. It's just making the story a little simpler. You have to make it easy for people to understand.”

It was almost more than he could bear, but he kept on. Morgan's life was at stake.

J
UDGE WELLS SPICER SPENT THE WHOLE OF NOVEMBER
1881 discovering things to admire about William McLaury and Tom Fitch.

Both attorneys were formidable in their own ways. Given the great Tom Fitch's decades of experience and national reputation, Spicer had expected the older man to triumph easily, but William McLaury brought energy and surprising legal agility to the proceedings. It was like watching a Texas longhorn in a contest with a good stock horse. The outcome was not inevitable. Sometimes the longhorn won.

The hearing went on far longer than anticipated. Twenty-one days in session. Thirty witnesses. Documents. Depositions. Objections, motions, rulings. McLaury held his own at first, but his was a Sisyphean task. Ike Clanton was the boulder he had to push up the hill, and that rock just kept rolling back down on him. Under Tom Fitch's gentle, curious, persistent questioning, Ike changed his story repeatedly, each new version less convincing than the one before.

Even if Ike hadn't been such a sad spectacle in the witness stand, his testimony was all but irrelevant. To constitute the crime of murder, there must not only be a killing but felonious intent. That was the sole legal issue in this hearing.

Was there bad blood between Wyatt Earp and Ike Clanton? Yes. Was there an argument between Doc Holliday and Ike Clanton
the evening before the gunfight? Yes. Had there been an altercation between Wyatt Earp and Thomas McLaury on the morning of the gunfight? Yes. None of it mattered. When the attorneys for both sides had said and done all they could, felonious intent—and nothing else—was what Wells Spicer had to rule on.

Of course, the community would expect the judge to address the events preceding the gunfight and he did so at the very beginning of his finding. “Given the events of the preceding night,” he wrote,

I am of the opinion that Chief of Police Virgil Earp committed an injudicious and censurable act when he called upon Wyatt Earp and John H. Holliday to assist him in arresting and disarming William Claiborne, the Clantons, and the McLaurys. Yet I can attach no criminality to his unwise decision. When we consider the lawlessness and disregard for human life on the frontier; the existence of a law-defying element in our midst; the fear and feeling of insecurity in our city; the violent men who have been a terror to Cochise County, keeping capital and enterprise away from our city; and when we consider the many deadly threats publicly made against the Earps and Holliday, we can understand that in this emergency Chief Earp needed the assistance and support of staunch men whose courage, coolness, and fidelity he could depend on.