Epitaph (57 page)

So. Granted: Virgil chose his deputies unwisely, but there was nothing felonious in that.

It is clear in my mind as well that Chief Earp honestly believed that when the Clantons and McLaurys and Claiborne passed through the O.K. Corral to Fremont Street, their purpose was not peaceful. The prosecution holds that their intent was to leave town; nevertheless, it has been established during this hearing that it was reasonable for Chief Earp to believe that they intended to resist any
attempt to arrest or disarm them, and that they intended to attack the police. Many citizens had reported threats to him. They publicly insisted that Chief Earp perform his duty to arrest and disarm the Cow Boys, as they termed Claiborne, the Clantons, and McLaurys.

And that was of the essence.

Should Virgil Earp have abandoned his clear duty as an officer because its performance was likely to be fraught with danger? Or, was it not his sworn duty to the law-abiding citizens of this city, who looked to him to preserve order and security, to arrest and disarm those men? There can be but one answer, and that answer divests the defendants—both regular and specially appointed officers—of a presumption of malice or illegality.

When those officers marched down Fremont Street to the scene of the subsequent homicide, they were going where it was their duty to go; they were doing what it was their duty to do; they were armed, as it was their right to be armed, when approaching men they had reasonable cause to believe were both armed and contemplating resistance.

So much for felonious intent, but what of the facts regarding the Cow Boys?

It is beyond doubt that William Clanton and Frank McLaury were armed and made such quick and effective use of their guns as to seriously wound Morgan and Virgil Earp and lightly wound John Holliday.

There remains a dispute as to whether Thomas McLaury was armed at all, except for the Winchester rifle that was on the horse beside him. I will not consider this question, as it is not of controlling importance. It is beyond doubt that the Clantons and McLaurys had among them at least two six-shooters in hand, other
pistols holstered, and two Winchester rifles on their horses. Thomas McLaury was with a party making felonious resistance to arrest. In the melee that followed, he was killed. The fact of his being unarmed initially cannot itself incriminate the defendants.

He could have run away, Wells Spicer thought. Ike Clanton and Willie Claiborne did, and they lived.

The prosecution claims that the deceased were shot while holding up their hands in obedience to the command of the chief of police, but the inquest found that William Clanton was wounded along the length of his right wrist. Witnesses testify that he fired his pistol thereafter with his left. The trajectory of his initial wound is compatible with a man aiming a pistol, not holding his hand in the air. Similarly, the wound to Thomas McLaury's right chest, below his right arm, could not have been received with his hands on his coat lapels demonstrating that he was unarmed, as claimed by the prosecution. His wound is consistent with testimony that he was reaching over a horse for a rifle when he was fatally wounded.

Who started it? That's what everyone would want him to decide, but that had no bearing on whether these three homicides were murder.

I cannot say which party fired first. Some witnesses testify that each of the deceased yielded to a demand to surrender. Other witnesses of equal credibility testify that William Clanton and Frank McLaury met the demand for surrender by partially drawing their pistols. All witnesses agree that the initial discharge of the firearms from both sides was almost simultaneous. As the defendants were police officers charged with the duty of arresting and disarming men who had previously declared their intention not
to be arrested or disarmed, they had the right and duty to meet force with force, under the statutes of the Territory of Arizona.

Which left only Ike Clanton to deal with.

The testimony of Isaac Clanton that this tragedy resulted from a scheme by the Earps and Holliday to assassinate him in order to silence him about their robbery of the Kinnear stagecoach . . .

Spicer paused, searching for the proper phrasing.

. . . falls short of credibility. If the purpose of the confrontation was to kill him, he would have been the first to fall. Mr. Clanton was not injured at all. His claim to be unarmed was believed by Wyatt Earp in the heat of the gunfight; he was allowed to run away unharmed by Wyatt Earp, the very man Mr. Clanton says conspired to kill him.

Beneath a mountain of words, there was but one conclusion, and Wells Spicer now reached it with little hesitation.

There being no sufficient cause to believe the defendants guilty of felonious intent to murder, I order them to be released.

He reread the decision and then signed his name with a flourish.

Wells Spicer, Magistrate, Arizona Territory. November 30, 1881.

FOR GENERATIONS,
the McLaury family would remember that the Earps and Holliday were exonerated on Sarah Caroline's wedding day.
They had all hoped for a different outcome, of course, but Ike Clanton's pathetic performance on the stand undermined those of more reliable witnesses, whose own testimony was partial and contradictory, leaving Will with no effective rebuttal to what Tom Fitch established under questioning.

That much Will himself could accept. What galled him was the dismissive, insulting phrase: “not of controlling importance.”

Tommy wasn't armed, but that cut no ice with Judge Spicer! No, the police were just doing their jobs. Tommy was in the wrong place at the wrong time. Too bad for him! Too bad for his family. Being unarmed and killed by the police is not of controlling importance.

It ate at Will, that awful phrase.

It ate at Johnny Ringo, too. “Your brothers' blood cries out to me from the ground,” Ringo would whisper, his voice silken, his eyes glazed by drink as they sat in the back of a shadowy saloon. “You have to make them pay.”

“Eye for eye,” Ike would say over and over. “Tooth for tooth.”

But William McLaury was a lawyer, loath to give up on the justice system. There remained a slender hope that he could get a grand jury to review the testimony and come to a different conclusion. He also had his brothers' affairs to settle, a task that became more distressing as it progressed, for everyone in Tombstone was now chiseling away at the McLaurys' estates. The undertakers wanted $280 for the funeral they'd given Frank and Tom, which seemed a lavish fee for stacking the boys, one above the other, in a single grave with one wooden marker for the pair of them. The valuation of the boys' land, farm equipment, and livestock came in far lower than anticipated, and Will suspected the assessor had friends who wanted to buy it up cheap. A lumber mill in the Huachucas presented an unpaid bill and while working through Tommy's books to confirm the purchase, Will found out that the boys weren't in business together at the time of their deaths. That opened up some troubling questions about Frank's livelihood, especially when several Cow Boys claimed that Frank had owed them money for “cattle
transactions.” And despite their seeming friendship to Will during the hearing, neither Ike Clanton nor Johnny Ringo would forgive debts they said Frank owed them. They had no paper to back their claims but after a month in Ringo's dead-eyed company, Will wasn't eager to engage in a dispute with either of them, in or out of court.

His expenses in Tombstone mounted. Bills were piling up back in Fort Worth. He had no income from his languishing practice, but he soldiered on in the cold and blustery weather of early December, growing more downhearted as the dark days passed. He came to dread the mail, for there was often a sweet and wrenching message from little John, begging his daddy to come home, but in the end, deliverance came in a letter from his older sister Margaret, whose son had recently graduated from law school.

Let your nephew Charlie take over the estate work
, Margaret wrote.
Go home to your children, Will. We have lost our dear brothers and you have lost your dear Wife but your babies have lost their
sweet Mother
and I know they yearn now for their Father to comfort them. Go to the children, William. Do not leave them longer in the care of Strangers. Let Providence work its will in the rest of these affairs.

IT HAD BEEN A YEAR
to test anyone's trust in Providence, but when Charlie arrived, shortly before Christmas, Will packed his bags.

Three drunk and sullen men saw him off the day he left Tombstone. Ike Clanton, Johnny Ringo, and a friend of theirs who'd just gotten out of jail. Frank Stilwell, his name was.

“Your brothers' blood cries out to me from the ground,” Ringo murmured.

“Eye for eye!” Ike said. Several times.

“Goddam Yankees won't get away with this,” Frank Stilwell vowed.

A Yankee himself, Will just nodded, and he shook hands with all three of them before he boarded a stagecoach bound for the Benson railway depot.

The road passed by the Tombstone cemetery. Will couldn't see his
brothers' grave, for it was just over the hill and out of sight. Although he had by then accepted that there was nothing more he could do, he prayed with all his might to the God in whom his sister still had faith.

“Damn them,” he whispered. “Damn the Earps. Damn Holliday. Damn all of them to hell.”

T
OMBSTONE WAS GLAD TO SEE THE END OF 1881. HELL
of a year, everyone said, shaking their heads. Fire, flood, famine, blood in the street.

Nobody felt much like celebrating, but the city did its best. There were church socials, recitals, a masked ball, and a charity auction. The Bird Cage Theatre threw a grand opening party with skits, magic acts, comedians, and a large staff of “dancers” happy to entertain any gentleman's desire to . . . dance. More genteel entertainment, “suitable for ladies,” was available at Schieffelin Hall. On Christmas Day, Al Schieffelin himself dressed up as Father Christmas to distribute gifts to more than 250 children.

Many of those kids had been behaving strangely lately. Sucking their thumbs, wetting their beds. Waking up with nightmares. Begging to skip school. No amount of punishment seemed to correct these new transgressions, but a few of the more perceptive parents noted that the trouble had started back in October when the kids had watched three men die in the street. “Honey, that's all over now,” such parents lied. “Everything is going to be fine.”

Those who could afford it—Johnny Behan included—decided it was time to send their children to boarding schools back east. Whole families were packing up, and for the first time since Ed and Al
Schieffelin stared down at the glorious numbers Richard Gird had calculated for their initial silver assay, the population of Tombstone began to drop.

The Earp women were among those who hoped to leave that wretched town.
Ever since our troubles began, we have had guards around us
, Lou wrote to her sister.
It has been disagreeable to be so unsettled, but most of the Cow Boys have now drifted out of town. They will go back to stealing stock, no doubt. Virgil is walking though he must use a cane. We believe Morgan is out of danger. His shoulders still give him pain and he is very weak I am afraid. We had to give Higgs up. I could not break him of jumping on Morg.