Trial at the O.K. Corral

In 1881, the Earp brothers and Doc Holliday faced the Clantons and the McLaurys in the Old West's most famous showdown: the gunfight at the O.K. Corral. When the smoke cleared, three men lay dead. Some called it Western justice. But would Western justice suffice as a defense when one of the survivors took the Earps and Holliday to trial for murder?

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Episode Transcript

Speaker 1 (00:01):
You are listening to History on Trial, a production of
iHeart Podcasts. Listener discretion advised. In the summer of eighteen
eighty one, Wyatt Irp lawmen approached Ike Clanton outlaw with
a proposition. This was highly unusual. Ike Clanton was affiliated

(00:24):
with the Cowboys, a group of cattle wrestlers and stagecoach
robbers who operated in the dusty reaches of southeastern Arizona.
Wyatt Ierp, on the other hand, was a former Pima
County deputy sheriff. His brother, Virgil, was city marshall for Tombstone,
the mining boomtown situated in the heart of Cowboy country.

(00:45):
The ERPs were sworn enemies of the Cowboys. So what
did Wyatt want with Ike? As Wyatt would later explain it,
he thought Ike could help make him sheriff. Earlier that year, too,
Ummestone had split off from Pima County to become the
seat of the newly formed Coachees County. Wyatt had hoped

(01:06):
to be appointed sheriff of Cochees County, but that honor
had gone to Johnny Beehn instead. Bee Hann was thought
to be sympathetic to the Cowboys. Many in Tombstone were
for various reasons, but having a sheriff with connections to
outlaws seemed wrong to many other Tombstoners, including Wyatt Earp.

(01:27):
Since there would be a real election held for the
sheriff position soon enough, Wyatt decided to run. He had
an unorthodox campaign strategy. A few months earlier, in March
of eighteen eighty one, a stagecoach carrying a Wells Bargo
money box was attacked by a group of bandits outside
of Tombstone. In the course of the attempted robbery, the

(01:47):
stagecoach driver and a passenger were killed. Wyatt and Virgil
Earp had tracked down one of the robbers, a man
named Luther King. King, in turn had identified his accomplices
William Leonard, Harry Head and James Crane, all known cowboy affiliates.
The RT Posse turned the King over to Sheriff be

(02:10):
Hand so they could pursue the missing men, but they
never found Leonard, Head or Crane. Soon after, King managed
to escape custody. The circumstances of his escape were very suspect.
One of Behan's deputies left the prisoner unattended with the
door unlocked, allowing King to slip out and mount the

(02:31):
fresh horse that had very conveniently been left behind the jail.
Many Tombstoners suspected that Behan had looked the other way,
or maybe had even helped. King George Parsons, a Tombstone resident,
wrote in his diary quote, some of our officials should
be hanged. They're a bad lot. Wyatt wanted to play

(02:52):
off these bad feelings in his own campaign for sheriff.
And wouldn't it be even better if he managed to
capture the missing robbers life head and crane too. That
would show just how useless Beehn was. But to do that,
Whyatt needed intel on the cowboys, and where better to
get that intel than from another cowboy. Ike Clanton came

(03:15):
from a cowboy family. His little brother Billy and his
father Newman, who everyone called Old Man, took part in
cowboy raids. Two. Ike might know where to find the
missing robbers, So Whyatt came to him with an idea.
Wells Fargo was offering a five thousand dollars reward for
the robbers capture. If Ike helped him find the men,

(03:36):
Wyatt said he'd give Ike the reward money, Ike demonstrating
that there's no honor amongst cowboys. Had just one question.
Was the reward only good if the men were captured?
What if they were killed? Wyatt telegraphed the Wells Fargo
office to ask dead or alive. Wells Faro confirmed, so
Ike and Wyatt struck a deal. Unfortunately for Wyatt's campaign

(04:00):
ambitions and Ike's financial dreams, Leonard, Head and Crane all
soon died in unrelated gun battles, but the deal the
two men had struck that summer would only months later
lead them both to a dusty lot behind the Ok Corral,
where an escalating IRP cowboy conflict erupted into one of
the wild West's most infamous gunfights. The twenty sixth of

(04:25):
October eighteen eighty one, wrote reporter Richard Rule in the
Tombstone Daily Nugget. The next day will always be marked
as one of the crimson days in the annals of Tombstone,
A day when blood flowed as water and human life
was held as a shuttlecock. A day always to be

(04:45):
remembered as witnessing the bloodiest and deadliest street fight that
has ever occurred in this place, or probably in the territories.
Rule was right, we remember the gunfight at the Oka, CA.
We can picture it, the long black coats, the drooping mustaches,

(05:06):
the fingers resting on triggers. The gunfight at the OK
Corral has become a symbol of the wild West, an
illustration of how hard men administered justice on the lawless frontier.
But here's the funny thing about the gunfight at the
OK Corral. It might have started in the streets, but

(05:26):
it ended up in a courtroom. Welcome to history on trial.
I'm your host, Mira Hayward. This week the Irp Holiday Case.
The legend of the Earths began in July eighteen forty
when Nicholas Irp married Virginia Cooksey in Hartford, Kentucky. The

(05:48):
couple would have eight children, including the three that we
know best today, Virgil, Wyatt, and Morgan. Nicholas was a
short tempered, ill mannered, but energetic man. He moved to
family frequently. Virgil was born in Kentucky in eighteen forty three,
Wyatt in Illinois in eighteen forty eight, and Morgan in

(06:08):
Iowa in eighteen fifty one. This unsteady childhood bonded the
Ert brothers as adults, they often traveled and lived together.
Throughout the eighteen sixties and seventies. The brothers bounced across
the West and Midwest, taking whatever jobs they could get,
like driving stage coaches, dealing in casinos, and building train tracks.

(06:30):
Contrary to our idea of them today, law enforcement was
not always the rp's passion. When they did take police jobs,
like when Wyatt and Morgan served as deputy town marshals
in Wichita, it was usually only because of the steady
paycheck provided. In fact, Wyatt, for most of his young
adult life, had more of a penchant for breaking the

(06:50):
law than for enforcing it. After the tragic death of
his pregnant wife Urilla in eighteen seventy, Wyatt went through
a bit of a dark period. He was at various
times arrested for horse theft, charged with running a floating brothel,
and sued for keeping taxes he had collected for local
schools for himself. But by the late eighteen seventies Wyatt

(07:13):
had settled down, as had his brothers. Virgil and his
common law wife Ali were living in Prescott, Arizona, where
he was serving as town constable, a job that mainly
required him to serve subpoenas. Virgil encouraged Morgan, who was
then mining in Montana, and Wyatt, a deputy marshal in
Dodge City, Kansas, to join him in Arizona. Wyatt and

(07:35):
Morgan were in Wyatt's good friend John Holliday decided to
come to Doc. Holiday, as he's better known, was a
hard drinking dentist with a quick temper and a bad
case of tuberculosis. Most people didn't like him, but Doc
had once saved Wyatt's life during a standoff, and the
two had been fast friends ever since. On November first,

(07:58):
eighteen seventy nine, I met up with Virgil and Ali
in Prescott. The party then made their way to Tombstone,
arriving on December first. Morgan came eight months later in
July eighteen eighty, and Doc several months after that. The
RPS had chosen Tombstone because of its legendary mines. In
August eighteen seventy seven, a man named Ed Schifflin had

(08:21):
found a vein of silver in the area. In a
cheeky nod to a doubter who'd once told him he'd
only find his death out there, Schifflin dubbed his claim Tombstone.
In November eighteen seventy nine, a month before Virgil and
Wyatt arrived, Tombstone elected its first mayor and city council.
Like many Western mining towns, Tombstone was a rough place.

(08:45):
Saloons and gambling halls lined the streets. After too many drinks,
fights broke out over card games. The town's location, only
thirty miles from the Mexican border made it a popular
spot for bandits and cattle wrestlers who stole goods in
one country and sold them in another. People called such
criminals cowboys. The men who we'd call cowboys today were

(09:07):
then called stockmen or cow hans. By the late eighteen seventies,
people had started calling the wrestlers and robbers who lived
in southeastern Arizona the capital c cowboys. The cowboys weren't
an official gang. They were a loose group of outlaws
who collaborated to part cattle from ranchers and money from
stage coaches. Many of them came to Arizona from the

(09:30):
former Confederacy, drawn to the territory by the promise of
less government oversight. Though the cowboys could be violent, sometimes
killing victims during their robberies, not everyone in Tombstone minded
their presence. Legal historian Stephen Lubet, in his book Murder
in Tombstone calls the relationship between the cowboys in the
town quote symbiotic, not flatly antagonistic. The cowboys had many

(09:56):
friends and supporters both in and around Tombstone, and other
local merchants depended on cowboys for cheap provisions, and saloon
keepers enjoyed their freewheeling spending habits. Ranchers living outside of town,
many of whom were ex Confederate Democrats, also got on
well with the cowboys, who shared their political beliefs and backgrounds.

(10:17):
Some of these ranchers even acted as middlemen for cattle
the cowboys stole in Mexico. But not everyone was so
tolerant of the cowboys. Many involved in the mining business.
Mine owners and engineers, as well as other businessmen, were
concerned about the economic impact the cowboys crime could have.
These people mainly came from Northern States and were Republicans.

(10:41):
They had less in common politically and socioeconomically with the cowboys.
This latter group included the Ert Brothers, who were now
firmly invested in helping maintain law and order They did
so in both private employment, guarding wells, fargo stage coaches
and acting as bouncers and saloons, and also in public roles.

(11:02):
Before arriving in Tombstone, Virgil had been appointed a Deputy
U s Marshal, making him the only federal authority in
the region. In the summer of eighteen eighty, an Army
lieutenant reached out to Virgil with a request. Six mules
had been stolen from the army's base at Camp Rucker.
Could Virgil track them down. Virgil agreed to look into

(11:23):
the matter, taking Wyatt and Morgan along with him. The
IRPs got a tip to search the mcclowry ranch outside
of Tombstone. Two of the mcloary brothers, Frank and Tom,
were known to collaborate with the cowboys hiding russelled livestock
on their ranch. Sure enough, there were the mules. The mcloarys, unsurprisingly,
were never big IRP fans After that. Besides a little

(11:47):
mule wrustling, relative peace reigned in Tombstone for much of
eighteen eighty. Wyatt was appointed a deputy sheriff in Pima County,
and he and Virgil collaborated with Tombstone's Town Marshal Fred
White direct present federal, county and local law enforcement. Then,
on October twenty eighth, a group of drunken cowboys took

(12:08):
to the streets of Tombstone and began firing their guns
for fun. Town Marshal Fred White intervened and got shot
in the groin. White died four days later, and Virgil
was appointed acting town Marshal. In response to this violence,
the Tombstone Town Council passed a new ordinance forbidding people

(12:28):
from carrying weapons with in city limits. They hoped this
would restore peace, but the violence was only beginning. Eighteen
eighty one saw a number of upheavals for the town. First,
Tombstone and its surroundings split off from Pima County to
form Cochees County. If this is sounding familiar, I talked
about this in the prologue, but that was ages ago,

(12:51):
so as a quick refresher. In February, Democrat and alleged
cowboy sympathizer Johnny Behn becomes Coachee's County Sheriff, much to
Wyatt Irp's chagrin. In March, the fatal stagecoach robbery takes place.
After the IRPs apprehend one of the robbers, he miraculously
manages to slip out of bee Han's custody. Wyatt IRP,

(13:12):
fed up with bee Hand's incompetence, decides to run for sheriff.
He makes a deal with Eike Clanton Cowboy to get
intel on the other stagecoach robbers. Ike says yes because
a five thousand dollars reward is hard to refuse. The
other robbers end up dying in unrelated gunfights, as outlaws
tend to do. So nothing happens except that the animosity

(13:34):
between the IRPs and Sheriff bee Han grows and grows
and grows. I should mention here that at some point
be hands fiance Josephine Marcus leaves him and eventually ends
up with Wyatt Irp, So that also doesn't help relationships
between the men. That takes us to September eighteen eighty one.

(13:57):
That month, Acting Arizona Territory Guns John Gosper hears about
the dysfunctional law enforcement situation in Tombstone and decides to
see for himself. His report to Secretary of State James Blaine,
written on September twentieth, is concerning in conversations with Johnny
b Han and Virgil Irp, Gosper wrote both men had

(14:19):
accused the other of enabling the cowboys. Without cooperation between
the sheriff and the Marshall, Gosper said there was little
chance of cracking down on crime in the region. Gosper
ended his report on an ominous note, quote something must
be done and that right early or very grave results

(14:40):
will follow. Only a month later, his worst fears came true.
Late on the evening of October twenty fifth, eighteen eighty one,
Ike Clinton and Tom mccloughy arrived in Tombstone with a
wagonload of beef to sell. Around midnight, Ike stopped by

(15:00):
the Alhambra Saloon, where he ran into Doc Holliday. This
meeting was no coincidence. Wyatt Irp had engineered it. In
the months since Wyatt and Ike had made their deal,
Ike had gotten increasingly nervous about word of his betrayal
getting out. For some reason, Ike believed that Wyatt had
told Doc Holliday about their discussions. Wyatt thought a conversation

(15:22):
with Doc might reassure Ike. Why he thought this is
a mystery. Doc Holliday was many things, but a soothing presence,
not one of them. He and Ike were both known
for their quick tempers. Plus, there's nothing that says I
don't know about your secret business like telling someone I
don't know about your secret business. The meeting quickly devolved,

(15:44):
and Ike and Doc began threatening each other. Morgan irp
intervened and broke up the fight out on the street.
Ike briefly got into it with Wyatt. Tempers eventually cooled
enough for someone to suggest a poker game, so Ike,
Tom Virgil, Sheriff b Han and maybe Morgan, Wyatt and
Doc two all sat down for a casual five hour

(16:06):
game at the Occidental Saloon. Unfortunately, if unsurprisingly, hours of
drinking and gambling did nothing to cool Ike off. Throughout
the next morning, October twenty sixth Ike was seen drunkenly
wandering through the streets of Tombstone, waving a rifle and
threatening the RBS and Doc holiday. The gossip network in

(16:27):
Tombstone worked fast, soon enough, word of Ike's behavior reached
Virgil and Morgan. When they found Ike, Virgil seized Ike's
rifle and then employed a Western lawman's favorite technique for
subduing a troublemaker. He clubbed Ike in the head with
the butt of his revolver. This was called buffaloing, and
though we'd probably call it police brutality today, buffaloing was

(16:51):
looked upon as a sign of an officer's restraint, better
than just shooting someone. Then, Virgil charged Ike with carrying
a firearm within city limit, the ordinance that had been
passed a year before in response to the shooting death
of town Marshal Fred White. After paying a twenty five
dollars fine and surrendering his weapons, Ike was released. Virgil

(17:12):
deposited Ike's rifle and revolver at the Grand Hotel for
Ike to pick up. When he left town. In the street,
Wyatt ran into Tom mclowry, who was looking for Ike.
Wyatt would later claim that Tom had a gun, but
by most other accounts, Tom was unarmed. Exactly what happened
then between Wyatt and Tom is unknown, but Wyatt ended

(17:32):
up buffaloing Tom. Just then, Ike's younger brother Billy and
Tom's older brother Frank arrived in town, both armed. Billy
and Frank were furious about what had happened to their brothers,
whose heads were both bleeding from their buffaloings. Not long after,
the Clinton's and mcclowrys were seen in Spangenberg's gun shop,

(17:55):
where they bought ammunition. Ike also tried to buy another gun,
but mister Spangenberg refused. The group then headed to the
Ok Corral for unknown reasons. The ERPs heard about the
gunshot visit and grew concerned. Virgil went to the Wells
Fargo office and borrowed a shotgun, but he left the
cowboys alone for now, hoping they would leave town of

(18:17):
their own accord. Meanwhile, Sheriff be Hann, having just woken
up from his post poker nap, was apprized of the situation.
Bee Hann decided to approach the cowboys and, per his
later testimony, get them to disarm. He found the group
in an alley that connected the back of the Ok
Corral to Fremont Street. Unfortunately, Frank mclowerry refused to give

(18:39):
up his gun unless the ERPs and Holiday also agreed
to disarm. Billy Clinton also refused, saying he was planning
to leave town. Ike Clinton and Tom mcclowry both appeared
to be unarmed. Bee Hand padded Ike down and found nothing,
but did not search Tom Apparently satisfied with his own work,
bee Hann went to update the ERPs, but bee Han's

(19:02):
efforts were too little, too late. While he'd been talking
to the cowboys, the ERPs had learned that the Clintons
and mclarry's had left the Ok Corral and had been
spotted on Fremont Street. In stepping on to a public street,
Billy and Frank had broken the ordinance against carrying weapons
in town. In Virgil ERP's mind, this crossed the line.

(19:24):
He decided that he needed to disarm the cowboys. Doc
Holliday then showed up and offered to come along. Wyatt
brushed him off, saying this is our fight, to which
Doc replied, that's the hell of a thing for you
to say to me. So Virgil decided to deputize Doc
along with his brothers, and gave Doc the shotgun he'd
borrowed before they set off. Part Way down Fremont Street,

(19:46):
the ERPs and Holiday ran into Sheriff bee Hann. He
tried to stop them, saying, I am the sheriff of
this county and I am not going to allow any
trouble if I can help it. When this was ignored,
bee Hand pleaded, for God's sake, don't go down there,
or you will get murdered, and then, for some reason
be hand inaccurately said I have disarmed them all. A

(20:10):
minute later, the ERPs and Holiday arrived at the vacant
lot bordering Fremont Street where the cowboys were. Besides the
Clintons and mclowry's, another cowboy named Billy Claiborne was hanging around,
but he quickly faded away as the lawman approached. Even
from ten feet away, Virgil could see that Billy Clinton
and Frank mcclowry were armed. Virgil raised the walking stick

(20:33):
he had in his right hand and called out, boys,
throw up your hands. I want your guns, and then,
realizing he might be misinterpreted, he added, hold I don't
want that, but it was too late. What happened next
is still debated. Some said that the cowboys tried to surrender,
Others said that the cowboys shot first. Either way, in seconds,

(20:57):
shots were flying. Frank mclowry took a bullet in the side,
Morgan Irp was hit in the shoulder. Tom mclowry turned
towards his horse either to grab the rifle hanging off
of its saddle or to run, and Doc Holliday hit
him with a load of buckshot. Frank mclowry took aim
at Doc and missed Morgan, and Doc shot back, killing

(21:19):
thirty two year old Frank on the spot. Billy Clanton
took shots to his chest and wrist, but still managed
to shoot Virgil's leg before taking another bullet to the stomach.
All of this happened in less than thirty seconds, despite
all the shots fired more than thirty. Wyat and Ike

(21:40):
emerged unhurt. Wyat by some stroke of luck, Ike because
he ran away. Virgil had a nasty leg wound. Morgan
had a chipped vertebra from the bullet that had passed
through one shoulder and out the other. Nineteen year old
Billy Clanton and twenty eight year old Tom mclowry both

(22:00):
died within the hour. Johnny Behann, trying to assert some control,
approached Wyatt and told him he was under arrest for murder.
Wyatt was speechless. I won't be arrested, he said, you
deceived be Johnny. You told me they were not armed.
He told Bihan he would answer for what he had
done and that he wouldn't leave town. But that he

(22:22):
refused to be arrested. Behind him, the gathering crowd voiced
their support, there is no hurry in arresting this man.
Hotel owner Sylvester Comstock declared he done just right in
killing them, and the people will uphold them. Be Hann
backed off that day. It seemed that Comstock was right,

(22:42):
the people would uphold the IRPs and Holidays actions. Newspaper
accounts of the shooting, based on eyewitness accounts, all favored
the lawmen. Ike Clanton and his younger brother Finn were
taken into protective custody because it was rumored that people
wanted to lynch them, but this support would not last long. Frank,

(23:04):
Tom and Billie's bodies were displayed in open caskets on
the street. Someone placed a sign above them that read
murdered in the streets of Tombstone. Two thousand people showed
up for the men's funeral. Whispers grew louder, were the
killings really justified? And then on October twenty eighth, the

(23:26):
coroner's inquest began. Arizona law only required a coroner's inquest
in cases where a death was suspected to be caused
by crime. A troubling sign for the RBS. Still, they
likely believed that the testimony would support them, but the
first witness, Sheriff be Han, dashed their hopes. Behan claimed

(23:47):
that after Virgil asked for the cowboys guns, Billy Clanton
had cried out, don't shoot me. I don't want to fight,
and Tom mccloughry had said, I have got nothing, pulling
his coat back to show he was unarmed. Even as
the men were surrendering, be Hand said the IRP party
had started shooting. Bihan also claimed that Virgil had not

(24:08):
been quote acting in an official capacity, painting the shootout
as the result of a private feud. Ike Clanton and
Billy Claiborne corroborated b Hand's story. More damningly, several neutral
witnesses also testified about the ERPs and holiday shooting quickly
after asking the Clintons and mcclowry's to surrender. By the

(24:30):
end of the two day inquest, many Tombstoners had become
openly critical of the irp's actions, though coroner Henry Matthews
released an ambiguous verdict, finding only that Billy Clinton and
the mclowry's had died as a result of being shot.
Everyone knew the story would not end there, and indeed,
the day after the coroner's verdict, Ike Clanton filed first

(24:53):
degree murder charges against John Doc Holliday and Virgil Wyatt
and Morgan Irp. The case would now be sent before
Justice of the Peace Wells Spitzer for a preliminary hearing.
If Spicer found that a crime had indeed been committed
and that there was sufficient cause to find the IRPs
and Holiday guilty of said crime, they could find themselves

(25:15):
on trial for their lives. Tombstone's first courthouse had burned
in a fire earlier in the year, so the preliminary
hearing took place in the court's temporary home in the
Mining Exchange building, just down the block from the shootout site.
Wells Spicer, the Justice of the Peace, presided a true

(25:37):
multi hyphenet Westerner. The fifty year old Spizer was a lawyer, prospector,
and a journalist. Preliminary hearings were usually brief affairs, consisting
of a straightforward presentation of evidence to a judge who
would then rule if a grand jury should hear the case,
but this hearing would last for nearly a month and
closely resemble a real trial. Why, while given the nomadic

(26:02):
existence of many frontier settlers, there was no guarantee that
a witness would stick around for a trial. Arizona law
allowed for sworn testimony given in preliminary hearings to be
read aloud at trial should the witness have moved on,
so lawyers on both sides were incentivized to get testimony recorded. Now,
the prosecution and defense also had their own reasons to

(26:25):
believe a prolonged preliminary hearing could benefit their case. In
the past, Tombstone prosecutors had held back evidence that they
wanted to save for trial from preliminary hearings and seen
their cases dismissed as a result, And the defense probably
believed that they would have a better shot with Judge Spicer,
a Republican, than with a Coachees County grand jury, which

(26:47):
would likely contain many Democrats and cowboy sympathizers. Attorney Tom
Fitch led the defense. Fitch was a fascinating character during
his long and varied career. The forty three year old
Fitch had worked as a reporter, a political organizer, and
a lawyer, and had also served a term in Congress.
As a representative from Nevada. Fitch technically only represented the RBS.

(27:12):
Lawyer TJ. Drum represented Doc Holliday, but Fitch structured the
defense and likely conducted most of the examinations. The prosecution
had no such unifying force. District Attorney Lyttleton Price, a
thirty three year old lawyer, was technically in charge, but
friends of the Clintons and mcloughry's skeptical of the Republican,

(27:33):
Price fundraised to hire another prosecutor, Ben Goodrich. Goodrich was
a Confederate veteran and a staunch Democrat. He may also
have helped I Clanton file the murder charges. There was
a third prosecutor two who arrived on the third day
of the hearing and shaped the case more than either
Goodrich or Price. His name was Will mcloughy, and he

(27:58):
was Frank and Tom mcloughry's old brother. Thirty six year
old Will was an attorney in Texas. Upon hearing of
his brother's deaths, he had gone immediately to Arizona and
asked to join the prosecution. From the start, Will's intent
was clear. He wanted the IRPs and Holiday dead. This

(28:19):
thing has a tendency to arouse all the devil there
is in me, he wrote to his law partner, I
could kill them. Will made it clear to his co
consuls that he was uninterested in any charge less than
first degree murder and the death sentence that accompanied it.
Before Will mcloughy's arrival on November fourth, the prosecution case

(28:42):
had proceeded sedately. Coroner Henry Matthews detailed the wounds on
the dead men's bodies. Billy Allen, a friend of the
mcloughry's and Clanton's, testified that Frank mcloughy had told him
he planned to get his brother out of town, not
fight the IRPs. Sheriff Johnny B. Hann repeated his story
from the inquest in which Tom mcloary and Billy Clanton

(29:03):
had tried to surrender. Martha King, a housewife, described seeing
the IRPs as they walked towards the gunfight and hearing
one of the brothers tell Doc Holliday quote, let them
have it. Andrew Meehan, a saloon keeper, testified that Tom
mclowry had turned in his pistol per tombstone law in
the early afternoon of the twenty sixth, supporting the idea

(29:26):
that he'd been unarmed during the gun fight. Billy Clayborne,
the cowboy who'd been with the mclowrys and Clinton's right
before the gunfight, claimed that the ERPs and Holiday had
approached with their guns drawn, ready for a fight. None
of this looked good for the defendants. The prosecution's presentation
made it look like they had acted hastily out of anger,

(29:49):
that they had provoked the gunfight and shot unarmed men.
But the prosecution hadn't provided much evidence for premeditation, which
was needed to prove first degree murder, and that was
a problem for Will mclowry, who wasn't going to be
satisfied with a lesser charge. Fortunately, the prosecution's next witness,

(30:09):
Ike Clanton, was prepared to provide the defendants with a
motive for murder. It came out surprisingly during his cross
examination on Saturday, November twelfth. Earlier, Ike had testified that
his fight with the ERPs and Dock the night before
the gunfight had been unprovoked. Tom Fitch pushed him on this,
asking if it had anything to do with the deal

(30:31):
that Ike had made with Wyatt to turn on Leonard
Head and Crane. The stagecoach robbers. Ike admitted that there
was a deal, but it wasn't a deal to capture
the robbers. It was something much more nefarious. Wyatt erp
Ike claimed, had offered him six thousand dollars to quote

(30:53):
help put up a job to kill Crane, Leonard and head.
Why would Wyatt want the men dead? Because, Ike said
the ERPs and Doc Holliday had worked on the stagecoach
robbery with them. Why it was afraid, Ike continued that
some of them would be caught and would squeal on him.

(31:14):
Tom Fitch was stunned. Where had the story come from?
It was baffling, and it was hard for most people
to believe. The prosecution, however, doubled down on redirect. The
prosecutor asked Ike for more details. Ike took the invitation
and ran with it, now claiming that all three Urt

(31:35):
brothers had admitted directly to him their involvement in the robbery,
and that Doc Holliday had openly confessed to firing the
shot that killed the driver. Ike described his horror at
what the men were telling him, saying, quote, I was
not going to have anything to do with helping to
capture Bill Leonard Crane and Harry Head capture them, not

(31:59):
kill them. Ike caught his slip of the tongue and
quickly corrected himself, but not quickly enough for it to
escape Tom Fitch's notice. Fitch asked for a note to
be made in the record, and Spicer obliged, writing quote.
At the time of stating the above sentence, the witness
first said capture and then corrected it to kill. But

(32:22):
Ike wasn't deterred by this revealing mistake. As the redirect
examination continued, Ike apparently with the full support of the prosecution,
now tied this deal back to the gunfight, saying that
after Leonard Crane and Head died, he believed that the
IRPs and Holiday would kill him for what he knew.
Ike thought the gunfight had actually been an attempted assassination.

(32:47):
What prompted Ike Clanton to tell this story so blatantly
an invention? Maybe alcohol when historian has suggested or cocaine,
says another which Ike might have been taking headaches. Stephen
Lubet believes that Will mcclowry, desperate to prove first degree murder,
might have encouraged Ike to provide a motive on re cross.

(33:10):
Tom Fitch got Ike to admit that he had shared
this story with the prosecution before he told it in court.
Whatever Ike's reasons, his impact on the hearing was enormous.
On November sixteenth, the defense began their presentation. Tom Fitch
recognized the unique dimensions of this case. In most cases,

(33:31):
Stephen Lubet writes, it is undisputed that a crime has occurred,
and the question is whether the defendant committed it. The
IRPs trial, however, was very nearly the reverse. There was
no doubt that the ERPs killed the three cowboys, but
the question was whether it amounted to a crime. Criminality,
not commission, was the ultimate issue for the court. The

(33:54):
defense planned to answer the question of criminality by focusing
on character, by defining the ERPs as law men and
casting the dead men as dangerous criminals who posed a
threat to Tombstone. To that end, the defense's first witness
was Wyatt, Erp himself. This was sure to be a
dramatic moment in the hearing, but what Tom Fitch did

(34:15):
after calling Wyatt made it even more riveting. He declared
that Wyatt would not be undergoing a direct or cross examination. Instead,
he would be presenting a narrative statement. Under Arizona law,
defendants were allowed to do this. This law was a
remnant of the time not long gone, when defendants were

(34:37):
not allowed to testify in their own defense, something we
talked about in more depth in the Lincoln Lawyer episode. However,
defendants usually spoke off the cuff, and Wyatt Earp would
not be doing that. Instead, he began to read from
a prepared statement. The prosecution objected, but Judge Spicer ruled

(34:57):
that quote the statute was broad and the defendant could
make any statement he pleased, whether previously prepared or not,
and so Wyat read. His statement was wide ranging and
suspiciously articulate, presenting a long history of the Clinton and
mclowry brothers association with the Cowboys and their various criminal activities.

(35:21):
He called Ike Clinton's testimony quote a tissue of lies
from beginning to end. He said he believed Tom mclowry
to have been armed, and he expressed the personal fear
and responsibility he felt, saying quote, I believed then and
believe now from the acts I have stated and the
threats I have related made by Tom mcloughy, Frank mcloughy

(35:43):
and Ike Clinton that these men had formed a conspiracy
to murder my brothers, Doc Holliday, and myself. I believe
I would have been legally and morally justified in shooting
any of them on site, but I did not do so,
nor attempt to do so, when as part of my
duty and under the direction of my brother, the Marshal,

(36:04):
I did not intend to fight unless it became necessary
in self defense and in the performance of official duty.
When Billy Clinton and Frank mclowy drew their pistols, I
knew it was a fight for life, and I drew
in defense of my own life and the lives of
my brothers and Doc Holliday. Virgil Irp also testified. The

(36:25):
format was the more traditional direct and cross examination, but
the setting was unusual. Virgil, still recovering from his wounds,
gave his testimony from his sick bed. His story aligned
with Wyatts, although he focused more on the law enforcement
aspects of the day, explaining that he had deputized his
brothers and Doc Holliday to help him disarm the Clintons
and mcloughy's. Virgil also described all the threats the cowboys

(36:49):
had made towards him including a new piece of evidence.
Not long before the gunfight, a man Virgil did not
know approached him and told Virgil that he'd just seen
a group of men gathered by the ok corral. All
the men were armed, this man said, and he'd heard
one of them say quote, be sure to get erp
the marshal, and another reply, we will kill them all.

(37:13):
The defense now produced the man who had told this story.
His name was H. F. Sills. He was a railway
worker visiting Tombstone on October twenty sixth when he happened
to overhear the Clintons and mcclowry's talking about the ERPs.
Sylls had asked someone to point him to Virgil so
he could pass on what he'd heard. He did not
know who the Clintons or mclowry's were at the time,

(37:36):
but at Frank, Tom and Billie's funeral, Sills had recognized
Ike Clinton as one of the men making threats before
the gunfight. Sylls' status as a complete outsider to the
town gave his testimony weight, and he was also not
the only one to testify for the defense about threats
made by Ike Clinton. Ned Boyle, a bartender described Ike

(37:57):
Clinton saying quote, as soon as the ERP's end and
Doc Hollidays showed themselves on the street, the ball would open.
They would have to fight. Julius Kelly, a saloon owner,
and Resid J. Campbell, the clerk of the county Board
of Supervisors, also heard Ike make threats. The defense also
presented several gunfight eyewitnesses who were butted the prosecution's version

(38:19):
of events. H F. Sills claimed that the cowboys drew
their guns as soon as Virgil started speaking to them.
Addie Borland, a dressmaker, said that she hadn't seen any
of the cowboys putting their hands up in surrender. Borland
also pushed back on Sheriff bee Han's claimed that the
IRPs and Holidays had fired all of the first shots,
saying that everyone began shooting simultaneously. Borland wasn't the only

(38:44):
one to raise issues with Beehn's testimony. The defense had
a surprise witness, Winfield Scott Williams, an assistant district attorney
under Lyttleton Price. Williams did not seem pleased to be there.
It must have been awkward under my your boss's case,
but he appeared nonetheless when Tom Fitch had cross examined

(39:05):
Sheriff be Hann. He'd asked bee Hann if he had
visited Virgil Irp the night after the gunfight and told
Virgil that he had seen one of the mclowry boys
draw his pistol immediately after Virgil asked for their surrender.
Bee Hann had denied saying this, but Winfield Williams had
also been at Virgil's house that night, and now on

(39:26):
the stand he testified that bee Hann had indeed said
this to Virgil. It was a serious blow to Behan's
credibility and raised the question if he had lied about this,
what else had he lied about. On November twenty ninth,
the preliminary hearing ended. Both sides waived the right to
closing arguments for unknown reasons. It was now up to

(39:49):
Judge Wells Spicer to review the evidence and decide whether
to move the case forward to a grand jury. Spicer
said he would announce his decision at two pm the
next day. If Spicer found there was sufficient cause a
pretty low bar to believe that the ERPs and Holiday
were guilty of first degree murder, he could send the
case to the grand jury. If he didn't find sufficient

(40:11):
cause for this charge, he could recommend a lesser charge,
like second degree murder or manslaughter, or he could dismiss
the charges altogether. At two o'clock on Wednesday, November thirtieth,
eighteen eighty one, the parties met once more in the
Mining Exchange Building to hear Judge Speiser's decision. Though Spicer
had produced his decision quickly, that didn't mean it was short.

(40:34):
The text ran for more than three thousand words. The
length reflected the prolonged hearing. Spicer said, explaining, quote, 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 to an
earnest study of the evidence before me. Based on that study,

(40:55):
he had found that quote, there was no sufficient cause
to believe the defendants guilty of the offense mentioned within,
and I order them to be released early. In his opinion,
Judge Spicer declared that there was a factor in this

(41:16):
case that quote divested the subsequent approach of the defendants
toward the deceased of all presumption of malice or of illegality.
That factor was the defendant's roles in law enforcement, Virgil
Irb as town marshal and the rest as his deputies.
When the defendants, Spicer continued, quote, marched down Fremont Street

(41:39):
to the scene of the subsequent homicide. They were going
where it was their right and duty to go. Of course,
police officers can and do wrongfully kill people, but Spicer
did not think that that had happened in this case.
He believed that the defendants had acted from necessity to quote,
save themselves from certain death. In view of all the

(42:03):
facts and circumstances of the case, Spicer found, I cannot
resist the conclusion that the defendants were fully justified in
committing these homicides, that it was a necessary act done
in the discharge of an official duty. What circumstances did
Spicer mean? He defined them as, quote, the conditions of

(42:24):
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 the many threats that

(42:47):
have been made against the ERPs. This description matches almost
exactly the narrative that the defense advanced, that the ERPs
were virtuous law men fighting an uphill battle against the
lawlessness inherent to a frontier society. Stephen Lubitt argues that
this narrative is the reason the defense emerged victorious, not

(43:08):
necessarily because of this particular narrative's virtues, but because they
had a narrative at all. In Tombstone, Lubert writes, the
prosecutors lost primarily because they failed to present a coherent
theory of their case. The prosecution presented many ideas that
the IRPs had acted out of anger, that it was

(43:28):
an attempted assassination, and so on, but their theories often
contradicted each other and never came together. That's a problem
in a trial which is, ultimately, in Lubet's words, quote,
a contest of ideas in which each side tries to
present a comprehensive reconstruction of past events, combining facts and

(43:50):
law in a way that leads to a logical result.
Judge Speiser's decision had not entirely let the ERPs and
Holiday off the hook. He chast Virgil for enlisting Wyat
and Doc to help disarm the cowboys, saying that in
light of Doc and Wyatt's contentious history with Eyke Clinton,
bringing them along was a quote injudicious and censurable act.

(44:13):
He also left a thread dangling for future cases, acknowledging
that the grand jury could still consider the charges if
they wished. Ultimately, though the grand jury declined to pursue
the case, this was certainly a relief for the ERPs
and Doc Holiday, but not everyone was pleased. Clara Brown,
a Tombstone resident, wrote, quote, there being two strong parties

(44:37):
in the camp, of course this verdict is satisfactory to
but one of them. The other accepts it with a
very bad grace. And a smoldering fire exists which is
liable to burst forth at some unexpected moment. If the
ERPs were not men of great courage, they would hardly
dare remain in Tombstone. It did not take long for

(45:01):
that fire to burst forth. Late on the night of
December twenty eighth, less than a month after the hearing,
Virgil Irp was attacked in the streets and shot twice. Miraculously,
the shotgun blasts did not kill him, but they ravaged
his left arm, which he would never be able to
use again. Like Clanton's hat was found at the site

(45:23):
of the ambush. Some people also suspected that Will mclowry
was involved, but he was already back in Texas, heartbroken
by the hearing's outcome. The morning after the attack on Virgil,
Wyatt telegraphed Arizona's Federal Marshall Crawley Dake, and asked Dake
to make him a US Marshal and give him the
power to appoint deputies. Local authorities are doing nothing, Wyatt wrote,

(45:48):
the lives of other citizens are threatened. Dake agreed and
made Wyatt a Marshal four months earlier, on March eighteenth,
eighteen eighty two, as Morgan and Wyatt EARP were playing
billiards at Campbell and Hatch's saloon, two gunshots ripped through
the window. One bullet skimmed over Wyatt's head and embedded

(46:08):
harmlessly in the wall, but the second bullet hit true,
slicing through Morgan Rp's spine. Morgan fell to the ground
and never stood again. He lived for an hour more
as Virgil and Wyatt did their best to make their
little brother comfortable. At one point, they tried to help
Morgan up. Don't boys, don't, I can't stand it, Morgan said,

(46:33):
I have played my last game of pool. Shortly before midnight,
Morgan IRP died, aged thirty. Virgil and his wife left
Tombstone to accompany Morgan's body on the train to Colton, California,
where Morgan's wife and the IRP parents lived. A coroner's
jury investigated Morgan's death and identified a number of suspects,

(46:58):
but Wyatt EARP was not interested in a courts justice.
He raised a posse, using his martial status to deputize
eleven men, including his brother Warren and Doc Holiday, between
March twentieth and March twenty fourth. In what would come
to be known as the ERP Vendetta Ride, the posse

(47:19):
killed three cowboy affiliates, Frank Stillwell, Florentino Indian Charlie Cruz
and Curly Bill Brocious. This time there was no ambiguity
about Wyatt Rp's actions, though Wyatt would claim he'd been
within his rights as U S Marshal. This was murder,
plain and simple. Johnny Behan formed a posse of his

(47:41):
own to chase down Wyatt and his compatriots, but they fled.
Wyatt and Doc ended up in Colorado, and the governor
there denied Arizona's extradition requests, but death still stalked the
men of Tombstone. The first to go was Judge Wells Spicer.
After the hearing, he'd received death threats, but nothing came

(48:03):
of them. He did not run for the Justice of
Peace position again and turned to prospecting. When a mine
he'd invested heavily in failed in early eighteen eighty seven,
the now fifty six year old Spicer disappeared. It is
thought that he wandered into the desert to die. Six
months later, Ike Clanton ran into a detective who was

(48:25):
investigating him in association with cattle wrestling and murder. Ever, reactive,
Ike drew his gun, but the detective shot first. Ike
Clanton died on June first, eighteen eighty seven, aged thirty nine.
Doc Holiday was next. The tuberculosis that had driven him
west in search of better air ate steadily away at him.

(48:48):
His illness, however, didn't stop him from drinking, gambling, or shooting.
In eighteen eighty four, Doc shot a man named Billy
Allen in Leadville, Colorado, over a five dollars day Holiday owed.
Alan miraculously survived and Holiday miraculously got away with claiming
self defense at trial, though Alan had been unarmed and

(49:10):
Holiday had essentially ambushed him. Despite a talent for escaping
from the law, Holiday could not escape his illness. Tuberculosis
killed the thirty six year old Doc Holiday on November eighth,
eighteen eighty seven. Virgil Irp stayed in California after delivering
Morgan's body. He spent the rest of his life moving

(49:31):
from job to job, just as he always had, including
stints in law enforcement, mining, and saloon operation. On October nineteenth,
nineteen oh five, Virgil Irp died, aged sixty two, from pneumonia.
Johnny Behan left Tombstone in eighteen eighty six. He would
go on to hold a variety of other law enforcement

(49:52):
and government positions, but usually left them under a dark cloud.
Accused of embezzling money or other misconduct. Be Hand died
in Tucson on June seventh, nineteen twelve, aged sixty seven.
Virgil was the leader of the IRPs on that fateful
day in Tombstone, but it is Wyatt whose name is

(50:13):
best remembered. This is probably because Wyatt lived the longest
and had a best selling biography written about him. Wyatt
married Josephine Marcus, Johnny b Han's former fiancee, in eighteen
eighty eight. The two stayed together until his death. Like Virgil,
he worked a variety of jobs across the West before
eventually settling down in Los Angeles. There he befriended many

(50:37):
early Hollywood cowboy actors and even consulted on several westerns.
Wyatt Erp died on January thirteenth, nineteen twenty nine, aged eighty.
Two years before his death, Wyatt's eventual biographer, Stuart Lake,
asked Wyatt about the gunfight. For my handling of the
situation at Tombstone, I have no regrets Wyatt's. If the

(51:00):
outlaws and their friends and allies imagined that they could
intimidate or exterminate the IRPs by a process of murder
and then hide behind alibis and the technicalities of the law,
they simply missed their guests. But were the cowboys really
the ones who benefited most from the technicalities of the law.
In the Tombstone hearing, no lawyer more ably exploited the

(51:24):
law than defense counsel Tom Fitch. He used an outdated
but still active provision and Arizona law to allow Wyatt
Earp to present a meticulously crafted statement and avoid cross examination.
Fitch realized that Judge Spicer was more likely to be
sympathetic to his clients than a grand or trial jury,

(51:44):
and subsequently presented a thorough trial case at what was
really just a preliminary hearing. It's not hard to imagine
a scenario in which the Earths and Holiday were convicted
of involuntary manslaughter. Arizona law at the time defined involuntary
manslaughter as an unlawful killing committed either during an unlawful
act or quote during a lawful act, without due caution

(52:09):
or circumspection. Did Virgil Irp show due caution when he
brought Wyatt and Doc, who had been fighting with the
Clintons and mclowry's all day to try to disarm the cowboys?
Was giving Doc Holiday a shotgun an especially circumspect move.
Whatever the answer to those questions, none of them would

(52:31):
ever be explored in a jury trial thanks to Tom
Fitch's clever lawyering, Thanks most of all to the power
of the story he told. Though the Tombstone Hearing has
largely faded from memory, the narrative of law men verse
outlaw that the defense crafted at the hearing is one
that has been repeated over and over again in books

(52:53):
and TV shows and movies, And despite at first glance
seeming to be about good versus evil, it's really a
narrative where the distance between lawmen and outlaw is much
shorter than you'd think. That's the story of the r
Holiday case. Stay with me after the break for the

(53:14):
account of the time Wyatt Erp played judge to disastrous results.
Before Tombstone, before the Ok Corral, before any of it,
Wyatt Earp worked on the railroad in the late eighteen sixties.
Wyatt had helped build tracks for the Union Pacific. In

(53:36):
the railroad camps, men liked to put on boxing matches,
so Wyatt learned to box, which he was good enough at,
and then he learned to referee, which he was very
good at. He'd officiate matches and manage the money. Wyatt
was a skilled referee, but officiating a casual boxing match
in a railroad camp in Wyoming is very different than

(53:57):
officiating the heavyweight title match in front of thousands in
San Francisco. That's why when organizers asked Wyatt to officiate
the fight between Tom Sharky and Bob Fitzsimmons, he hesitated.
The fight would be conducted under the Marquess of Queensbury rules,
which Whyatt wasn't sure he was familiar enough with. It

(54:17):
was eighteen ninety six and Wyatt, now forty eight, was
managing race horses and deeply in debt. He hadn't been
official's first choice, but it was now the day of
the fight, December twod and Sharky and Fitzimmons teams hadn't
been able to agree on anyone else. Whyatt's name came up,
perhaps thanks to a journalist. With the fight only hours

(54:39):
away and ten thousand tickets sold, the organizers pushed Wyatt
to accept. Eventually he said yes. Unfortunately, Wyatt's inexperience would
have dire consequences. Things got off to a shaky start
even before the opening bell, when Wyatt entered the ring
with a pistol under his jacket. Classic Wyat officials quickly

(55:03):
confiscated the gun, but after that things settled down. Fitsimmons,
a quick, shrewd boxer, seemed to have an edge over
the stronger but slower Sharky. No surprise there, Fitzsimmons was
the favorite. In the eighth round, Fitzimmons delivered a hard
uppercut to Sharky's chest, sending Sharky to the ground. For

(55:23):
a moment, it seemed that Fitzimmons had knocked Sharky out,
but then Sharky began holding his groin and crying that
he'd been hit below the belt. Wyatt ran over to
Sharky and examined him, then called a foul and declared
Sharki the winner of the match. Perhaps anticipating the controversy
of this call, Wyat then made a fast exit. Allegations

(55:45):
immediately followed that the match had been fixed. Fitzsimmons and
his manager filed charges claiming that there had been a
conspiracy between Sharky's team and Wyatt. After two weeks of testimony,
the court dismissed the case, saying that the boxing match
was illegal and thus not something they would rule on.
There is no concrete evidence that Wyatt was involved in

(56:07):
any fix, but the match would haunt him for the
rest of his life. To most Americans in the early
twentieth century, Wyatt Earth was better known as the man
who had cost Bob Fitzimmons his title than as the
man who'd cost multiple men their lives. Thank you for
listening to History on Trial. If you enjoyed this episode,

(56:29):
please consider leaving a rating or review. It can help
new listeners find the show. To see images of the
people and places in this episode, check out our instagram
at History on Trial. My main sources for this episode
were Stephen Lubet's book Murder in Tombstone, The Forgotten Trial
of Wyatt Earth, and transcripts from the hearing published on

(56:50):
Douglas O. Linder's Wonderful Famous Trials website hosted by the
University of Missouri Kansas City School of Law. For a
full bibliography, as well as a transcript of this episode
with citations, please visit our website History on Trial podcast
dot com. History on Trial is written and hosted by

(57:11):
me Mira Hayward. The show is edited and produced by
Jesse Funk, with supervising producer Trevor Young and executive producers
Dana Schwartz, Alexander Williams, Matt Frederick, and Mira Hayward. Learn
more about the show at History on Trial. Podcast dot
com and follow us on Instagram at History on Trial

(57:33):
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