Tombstone Judge

Old Tombstone, Arizona Territory

With three men dead, two wounded, and one slightly injured, one would think that it was one hell of a gunfight.  Well, it was — and it wasn’t.  The fight only lasted around thirty-seconds, but within that short span of time, led was flying everywhere.  The wounded men were lucky, of course, and only wounded or slightly injured because the men shooting at them were hyperventilating at the point of trigger squeeze.  The men who died were likely the result of well-aimed, calmly fired weapons whose shooters had every intention of inflicting death upon their targeted foe.  The dead fellows were Tom and Frank McLaury, and Billy Clanton.  The wounded men were Virgil and Morgan Earp; John H. “Doc” Holliday received a slight injury when a bullet grazed his holster.

Every story has a beginning and an end; every event in human history has causes and effects.  To learn more about what happened, who was involved, and why, see Cowboys and Carpetbaggers, The Cowboy War, and The Earps.  Following the gunfight at O.K. Corral, additional shootings and murders took place, which only ended after Wyatt Earp’s famed vengeance ride.  And the truth is, beyond the folks living in Tombstone between 1881-1882, hardly anyone ever heard about the confrontation until around 1926, when Wyatt Earp told his story Stuart Lake, who seems to have been a mixture between biographer and a writer of Western Dime Novels.

One fellow involved in the Cowboy Wars, who is often overlooked in the tale, was a jurist who had his own interesting history and a very mysterious end.  His name was Judge Wells Spicer.

Judge Spicer was a New Yorker, born around 1831, the son of William and Seba Spicer, who farmed in the small community of Chemung.  There isn’t much we know about the Spicer family, because I suppose, there wasn’t a lot to know about them.  They were farmers, they had three children, and along with tens of thousands of others in the early to mid-1800s, began a westward migration.  We do know is that the Spicer family relocated to Iowa when Wells was around 9-years-old, and we know that as a young man, Wells studied law and clerked for Judge Samuel A. Bissell.  He was admitted to the Iowa bar in 1853.  In that same year, Spicer and a few associates established the Cedar County Advertiser; Spicer served as its sole publisher and editor for about a year.  In time, once the paper had become financially established, Wells sold it for a nice profit.

As with many young educated men of his time, Wells became interested in local politics.  After failing to win the contest for county prosecutor as a Democrat, Spicer switched his allegiance to the Republican Party and won the race for Cedar County judge in 1856.  He soon after married Abbie Gilbert, and a year later they welcomed a son into their lives, whom they named Earnest.

Twelve years later, Wells and his family lived in Tipton, Colorado.  In 1869, Spicer left his family and traveled to the Utah territory with his former newspaper associate Charles Swetland.  Within the next three years, Wells was admitted to the Utah bar, opened a law practice specializing in mining law, and formed a hotel partnership with Swetland.  When Swetland died in 1871, Abbie rejoined Wells and they resettled in Ophir City.

Spicer continued his mining law practice, of course, did some prospecting, and then established a mine construction/tunneling business.  During this time, he periodically contributed essays to the Salt Lake Daily Tribune and Utah Mining Gazette.  In 1872, Spicer moved his family to Salt Lake City to accept a position as a United States Commissioner of the Territorial Supreme Court.[1]

In 1874, Wells Spicer leased the Rollins Mine, which at the time was defunct.  Spicer persevered and struck a lead and gold vein that revitalized the areas of Beaver and Minersville.  It was through Spicer’s connections in Beaver, Utah, that Wells Spicer became involved in one of the United States’ darkest criminal trials.

The Back Story

John Doyle Lee

John Doyle Lee (1812-1877) was born in Kaskaskia, Illinois Territory.  A friend of Joseph Smith, the founder of the Church of Jesus Christ of Latter Day Saints (LDS), Lee joined the Mormon Church in 1838 and became the adopted son of Mormon leader Brigham Young.  Lee served as a church missionary in Illinois, Ohio, Kentucky, and Tennessee.  John Lee was responsible for converting the former frontiersman William Adams Hickman to Mormonism.  Hickman later served the Mormon church as an enforcer and a leader of Mormon militia charged with exterminating the Timpanogos Indians in Utah.  It was said that Hickman’s militia decapitated as many as fifty Indian braves and displayed their heads from the walls of roofs.

As a member of the Mormon Church, Lee took nineteen wives and, ultimately, sixty-seven children.  As a member of the Mormon Council of Fifty, Lee played a role in establishing Mormon settlements in the Utah Territory and for enforcing Mormon laws within the community.  John Lee also played a role in the siege of the Baker-Fancher  Party and ultimately, the murder of 120 westward-moving migrants.  I previously summarized the horrid events of the Mountain Meadows Massacre in When Saints Became Sinners.

Seventeen years later, in November 1874, Sheriff William Stokes of Beaver, Utah, arrested John D. Lee on a warrant issued for his arrest in connection with the Mountain Meadows Massacre.  Facing charges of multiple homicide, Lee eventually decided to hire an attorney to represent him in the Utah Territorial Court.  That attorney was Wells W. Spicer.

The Lee Trial

The first “investigation” of the massacre was conducted by Brigham Young, began on 29 September 1857.  In 1858, Young sent a report to the Commissioner of Indian Affairs asserting that the massacre was the result of an Indian attack on the Baker-Fancher wagon train.  The Utah War delayed further investigation until 1859, when Jacob Forney and Brevet Major James H. Carleton began federal inquiries.[2]  Carleton’s investigation was thorough, including the collection of forensic evidence and in-depth interviews with local Mormons and Paiute tribal chiefs.  He concluded that individuals from southern Mormon communities participated in the massacre.  Carleton forwarded his report to the United States Assistant Adjutant-General and members of the US Congress.  Forney, who was the Superintendent of Indian Affairs in Utah, concluded that if the Paiute acted at all, the massacre would not have occurred without the urging of white settlers.

After studying the 16-year old and somewhat lengthy investigative report, Spicer advised Lee, whose roll in the massacre was substantial, to make a full confession and rely on the mercy of the court.  Lee, however, refused because, in doing so, he would have had to implicate influential members of the Church of Latter Day Saints — the men who ordered the Mountain Meadows massacre.

Wells Spicer assembled a legal defense team consisting of  Enos D. Hoge and William W. Bishop.  A witness to the massacre, John McFarlane, was hired to assist the attorneys.  An additional team consisting of George Bates and Jabez Sutherland assembled to represent the interests of the Mormon church.  Lee’s trial began in late July 1875, 18 years after the massacre.

After making their opening statement, the prosecution presented full details of the massacre; it took several days.  When the defense opened, Spicer proposed three possible scenarios — which we may assume he intended to plant the seeds of doubt into the minds of the jury respecting Lee’s involvement in the massacre. 

Spicer’s theories were that (a) hostile Indians massacred members of the Baker-Fancher Party, (b) that members of the Mormon Church committed the murders, and (c) that the massacre was a very unfortunate incident caused by the wagon train’s disregard for Indian land and property.  Having established these possible scenarios, Spicer laid out his predicate that the murders were the result of religious fanaticism.  At no time did Spicer suggest that the murders were intentionally ordered by the Mormon hierarchy.  Since no one from the Mormon Church stepped forward to support Lee, we might assume that the LDS sought to distance themselves from the entire episode.

Lee’s jury consisted of eight Mormons and four “gentiles.”  Unsurprisingly, the eight Mormons voted to acquit Lee.  Without a clear majority in the verdict, the trial judge declared a hung jury.  The first trial received wide coverage in the press.  It seemed that no one was pleased with a hung jury, or the Spicer defense.  The Mormon hierarchy was critical of Spicer because of his contention that the murders were committed by members of the LDS community (which they were), and the non-Mormon press was critical of him because he adopted such unusual strategies.

John D. Lee’s silence during the trial was unrewarded and, ultimately, it worked against him.  Behind the scenes, Mormon elders struck a deal with US prosecutors to populate the second trial with a clear majority of Mormon jurors, who in exchange for bringing in a guilty verdict, US attorneys would drop their contention that Mormon leaders were complicit in the murders.  When the Mormon hierarchy delivered on their part of the bargain, prosecutors dropped all charges against Mormon leaders.

During the second trial, Spicer pointed out that many of the prosecution’s witnesses were also willing participants in the massacre, and that their collective testimonies were inconsistent.  But, as they say, the jury was rigged — John D. Lee was found guilty and sentenced to death by firing squad.  Spicer and Bishop appealed the conviction, but it was upheld by the Supreme Court.  There is no mistaking the fact that Lee was guilty of participating in the massacres, but he was not the only one.  Lee became the scapegoat for the Mormon Church, who clearly ordered the massacre.  After the Supreme Court upheld Lee’s conviction, Spicer requested clemency from Governor George Emory.  Emory denied the petition because of Lee’s reluctance to make a full confession of what happened in 1857.

After the trial, Spicer was reappointed as a US Commissioner and he remained in that position through 1878 when, discouraged by the lack of justice in Utah, and motivated by a silver strike in southeast Arizona, he moved to the small mining town named Tombstone.


Judge Wells W. Spicer

There is no clear record of when Wells Spicer arrived in Tombstone.  We know that he was appointed as a special correspondent for the Arizona Daily Star in January 1880, and according to Jeff Guinn, Spicer entered into a partnership in a tobacco and stationary shop with Wells Fargo agent Marshall Williams.  When Charles G. W. French was named Chief Justice of the Arizona Territory by President U. S. Grant, French named Wells Spicer as a justice of the First District Court in June 1880.  Southeast Arizona was silver mining country and Spicer was no stranger to prospecting — in addition to which he opened a law office specializing in mining law and served as the Commissioner of Deeds for Cochise County.

In Tombstone, Wells became involved in another historic incident, commonly referred to as the Gunfight at the O.K. Corral, in October 1881.  After the wounded Morgan and Virgil Earp were taken away by wagon for medical treatment, a badly shaken Sheriff Johnny Behan approached Wyatt and John “Doc” Holliday and announced, “Wyatt, I’m arresting you for murder.”  Wyatt, momentarily stunned, answered, “I won’t be arrested, today” and then angrily accused Behan of misleading Virgil Earp into thinking the Clanton’s and McLaury’s were all unarmed.  Bystanders, who overheard Behan’s announcement, quickly defended Earp.  One citizen allegedly said, “They done just right in killing them, and the people will uphold them.”  Behan decided against making an arrest at that time.

The shoot-out quickly became the talk of the town.  The Tombstone Nugget ran a story noting that “The 26th of October 1881, 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.”[3]  There were two factions of citizens in Tombstone on that day.  Half of them supporting the Earps, the other half supporting the Cowboys — among whom there were more than a few who wondered why Virgil Earp had deputized the “hot head” Doc Holliday.  During the funeral procession, three hundred supporters lined up to escort the remains of Billy Clanton, and Tom and Frank McLaury to the Boot Hill Cemetery.

Two days after the shoot-out, County Coroner Henry Matthews opened a formal inquest.  The coroner introduced nine witnesses before his jury, including Behan and Ike Clanton, as well as some “more-or-less” neutral witnesses.  After listening to the conflicting stories and numerous accounts of previous trouble between the feuding parties, Matthews announced his conclusions — which neither condemned nor exonerated the town marshals.  He wrote, “William Clanton, Frank and Thomas McLaury, came to their deaths in the town of Tombstone on October 26, 1881, from the effects of pistol and gunshot wounds inflicted by Virgil Earp, Morgan Earp, Wyatt Earp, and one Holliday, commonly called ‘Doc Holliday’.”

The next day Ike Clanton filed murder charges against the Earps and Holliday.  Normally, this duty would have fallen to County Sheriff Behan, but Behan seemed content to let Clanton take the initiative, leaving him to testify against the Earps.  The case was scheduled for a preliminary hearing before Justice Spicer.  Spicer’s duty was to determine whether the evidence indicated “sufficient cause” to believe that a crime had been committed, and that the named defendants committed it.  In most cases, preliminary hearings are somewhat perfunctory affairs where defendants concede the inevitability of a full trial and where prosecutors present only enough testimony to meet the legal standard.

The Hearing

That didn’t happen in the so-called Spicer Hearing.  The Earp’s hired Thomas Fitch, a man with substantial credentials and a reputation as a master strategist, as their defense attorney.[4]  Esquire Fitch believed that Judge Spicer, who was a member in good standing of the Tombstone conservative establishment, would be sympathetic to the Earps and present a better hope for their freedom than a jury of randomly selected men.  Spicer’s hearing assumed the appearance of a regular criminal trial, which included thirty witnesses and full examination by attorneys for both sides — and the longest hearing in Arizona history.  It lasted nearly a month.

The prosecution team, on the other hand, was composed to men with different goals.  Lyttleton Price, the lead prosecutor, was appointed by the territorial governor.  In the minds of many townspeople, this made Price a suspected Republican.  Ike Clanton’s personal lawyer was Ben Goodrich.  Goodrich, like Price, understood that there would be a benefit to a “less-radical” prosecution.  William Rowland McLaury, the brother of Frank and Tom, joined the prosecution team.  His entire focus was an all-out attack on the defendants.[5]

At Fitch’s request, testimony in the hearing began behind closed doors on 31 October.  Henry Matthews opened testimony for the prosecution by stating that the dead men were killed by “gunshot or pistol wounds,” adding that Tom McLaury was killed by shotgun rather than by revolver.

The next morning, the prosecution called Billy Allen to the stand.  He told the court that after he informed Frank McLaury that his brother Tom had been hit on the head by Wyatt Earp, Frank appeared shocked and vowed to “get the boys out of town.”  Later, as a witness to the gunfight, Allen testified that he heard one of the Earps say, “You sons of bitches, you have been looking for a fight!”  He attributed Virgil Earp to ordering the Clanton’s and McLaury’s to “Throw up your hands!”  According to Allen, the Earps began firing at about the same time Billy Clanton said, “I ain’t got no arms.”  Fitch, on cross-examination, destroyed Allen’s credibility by bringing to light the young man’s criminal past: indictments for larceny, the use of aliases, etc.

Sheriff Behan testified on the third day.  He heard about the brewing trouble while seated in a barber shop and, as he anticipated disarming and arresting the parties, he told the barber to hurry along.  When he left the barber shop, he went to see Frank McLaury and demanded four times that he turn over his gun.  Frank refused, he said, until the Earp’s were also disarmed.  Behan testified that his effort to disarm Frank was interrupted when he spotted the Earp posse marching down Fremont Street.  According to Behan, he told the Earps that he had been “down there for the purpose of arresting and disarming the Clanton’s and McLaury’s,” and ordered the Earps to stop.  “I’m the Sheriff of the county and am not going to allow any trouble if I can help it.”  Behan also claimed that as the Earps continued down Fremont Street he followed behind, urging them to reconsider.

When the Earp posse arrived at the place where the Cowboys had gathered, Behan testified that he heard Wyatt say, “You sons of bitches have been looking for a fight, and now you can have it.”  Virgil followed, saying, “Throw up your hands.”  The shooting commenced instantly, he said, adding, “I will not say for certain — the first shot being fired at Billy Clanton by Doc Holliday.”

Thomas Fitch, Esq.

Lawyer Fitch’s examination of Behan sought to establish his prejudice against Wyatt Earp owing to their previous competition for the position of country sheriff and the inconsistency of his description of the gunfight.  For example, Fitch questioned how Holliday could have fired the first shot with his nickel plated revolver when, according to most other testimony, he was holding a shotgun in his hand at the beginning of the fight.  Fitch also challenged Behan’s court testimony when compared to his visit with the injured Virgil Earp the night of the gunfight, in which he reportedly told Earp, “You did perfectly right.”

Witness Martha King opined that the shooting was premeditated. In her testimony, she claimed that she heard one of the Earp’s tell Holliday to “Let them have it.”  Witness Wesley Fuller said that the shooting began before the Clanton’s and McLaury’s had a chance to respond to the demand that they disarm.  According to Fuller, Clanton had thrown up his hands and was shouting, “Don’t shoot me!” when the bullets started flying.  Of course, Fuller’s testimony was discredited when Fitch proved that Fuller had earlier told someone that he planned to cinch Holliday.

On 7 November, Judge Spicer surprised everyone by revoking Wyatt Earp’s and Doc Holliday’s bail and ordering them into the county jail.  Will McLaury was overjoyed, of course.  On the following day, Billy Claiborne asserted that the Earps had their weapons drawn before the reached the empty lot behind the O.K. Corral, suggesting premeditation, and he claimed that Morgan Earp shoved his pistol up close to Billy Clanton before shooting him.  Claiborne had no credibility at the trial, particularly after he remained silent when Fitch asked him if he was presently out on bail as a suspect in a killing over in Charleston, Arizona.

Price’s biggest mistake was putting Ike Clanton on the stand.  Here was a man who couldn’t keep track of his own lies.  According to his testimony, Morgan Earp shot his brother while Billy’s hands were in the air.  Then, split seconds later, Ike grabbed Wyatt’s pistol-holding hand and pushed him around the corner — and this allowed Ike to escape the massacre.  He recounted the times when the Earps and Holliday mistreated him.  In essence, the Earps were “out of control.”

Thomas Fitch destroyed Ike Clanton’s testimony.  Was he carrying around a rifle inside Tombstone on the morning of the gunfight?  Yes.  Was he interested in a showdown with the Earps?  Yes.  What then, was the source of Ike Clanton’s anger toward Wyatt Earp?  Was it that he feared Wyatt would reveal the secret deal he had made with Wyatt to turn in the men responsible for the Benton Stage robbery?  Ike claimed that the Earps were behind the robbery and that was why the Earps wanted to kill Billy Clanton and the McLaury’s — to keep them from bringing charges against the Earps.  After Clanton, Price brought four additional witnesses and then rested his case.

The defense opened its case on 16 November.  Wyatt Earp was the first to take the stand.  Fitch took advantage of an Arizona law permitting defendants in preliminary hearings to avoid cross-examination by offering a narrative statement.  Wyatt chose to read an account of events that almost certainly was prepared with the assistance of his attorney.  Earp told the court that the October gunfight began with a feud between the Earps and McLaury’s over the Earp’s attempt to retrieve stolen mules from the McLaury farm.  Wyatt stated that the McLaury’s had been waiting for a chance to get even and, as evidence, recounted several threats he’d received from the McLaury’s.  Wyatt forcefully denied any involvement with the stagecoach robbery and murder, stating that Ike Clanton’s accusation was a tissue of lies from beginning to end.

As to the shootout, Wyatt stated that it happened only because Sheriff Behan had deceived the Earps into believing that he (Behan) had disarmed the Clanton’s and McLaury’s.  It was only when he and the rest of his party came within close range of the men that they realized that the McLaury’s and Billy Clanton had six-shooters “in plain sight.”  He testified that the shooting began when, in response to Virgil’s demand that they disarm, “Billy and Frank reached for their guns.”  Wyatt admitted, along with Billy Clanton, to have fired one of the first two shots and that his shot struck the belly of Frank McLaury, who Earp said, had the reputation of being a good shot.  Wyatt admitted that Tom McLaury might have been unarmed, but nothing happened at the time of the incident that led him to think so.  He offered a compelling account of self-defense — duly sworn lawmen, enforcing the law, and being forced to make a split-second decision to fire before it was too late to save themselves.

Three days later, the hearing reconvened in Virgil Earp’s bedroom in the Cosmopolitan Hotel where he remained while recovering from his gunshot wound.  Virgil’s testimony was less coherent than Wyatt’s.  He told about his efforts to calm down an irate Ike Clanton the night before the shootout.  He said that the next morning, citizens came to warn him that Ike had threatened to kill him on sight, and another man named Sills said that he had overheard the Clanton’s and McLaury’s talking and one of them had said “We will kill them all.”  As to the gathering of the Clanton’s and McLaury’s at the O.K. Corral, Virgil determined to let them be, “ … so long as they stayed in the corral.  But,” he added, “if they came out to the street,” he’d disarm and arrest them.

Virgil said that when the Cowboys moved out to Fremont Street, he and his brothers and Doc Holliday (whom he deputized), made their fateful march toward the O.K. Corral.  Virgil insisted that Frank and Billy “drew their six-shooters and commenced to cock them” as soon as he gave them the order to disarm.  Two shots, one from Billy Clanton and the other (most likely) from Wyatt, went off in quick succession and then the shooting became “general.”  Virgil’s statement was consistent with other defense witness testimony.

Mr. H. F. Sills validated Virgil’s testimony about threats made against the Earps.  Ned Boyle reported that Ike Clanton told him on the morning of the shootout that, “ … as soon as the Earps and Doc Holliday showed themselves on the street, the ball would open.”  Rezin Campbell testified that he overheard Ike warn Wyatt that, “Fight is my racket, and all I want is four feet of ground.”

Winfield Williams testified that he heard Sheriff Behan tell Virgil that he did the right thing.  Hotel owner Albert Billicke told the court that he saw Tom McLaury leave the butcher shop on Fremont Street with a gun protruding from his pants pocket.  Annie Bourland was a witness to the shooting; she said she never saw any of the Clanton’s or McLaury’s throw up their hands.

Testimony in the hearing ended on 29 November.

The Aftermath of the Hearing

Spicer’s decision was that there would be no criminal trial of the Earps or of Holliday — but his decision was not without sanction.  He also criticized Virgil’s decision to deputize his brothers and Doc Holliday; it was an injudicious and censurable act — although in fairness, Virgil had few options for law enforcement assistance.

In Judge Spicer’s opinion, Ike Clanton was responsible for the gunfight at O.K. Corral, and the deceased men were at fault for failing to heed Behan’s request that they relinquish their firearms.  Regarding Behan’s testimony that McLaury insisted on the disarmament of the Earps, Judge Spicer noted that, “ … is a proposition both monstrous and startling.”  Virgil Earp, as town marshal — and his assistants, had every right and duty to be armed when they approached men whom they believed to be armed, in violation of the city ordinance, and contemplating resistance.  Spicer further opined, that “the tragic result” of the Clanton’s and McLaury’s actions were largely their own fault.  “I cannot resist the conclusion that the defendants were fully justified in committing the homicides.  There being no sufficient cause [to believe the defendants guilty of murder], I order them released.”

Tombstone was a rough town; what made is rough was the people who lived there.  If they weren’t fighting with each other about mining, the squabbled about politics.  At the end of Spicer’s Hearing, they had one more thing to argue about.  The Tombstone Epitaph had nothing but praise for Spicer, the Tombstone Nugget castigated Spicer, writing, “in the eyes of many, Spicer does not stand like Caesar’s wife, ‘not only virtuous but above suspicion’.”  The newspaper Spicer once worked for, the Arizona Daily Star, said that he [Spicer] “was guilty of culpable ignorance of his duty or was afraid to perform the same, or acted improperly in discharging them.”

The Cowboys wasted no time plotting their revenge.  Two weeks after Judge Spicer’s controversial decision, Mayor John Clum was forced to leap out of a stagecoach to escape bandits attempting to assassinate him.  Death threats were sent to several “pro-Earp” men, including Marshall Williams, Tom Fitch, and Wells Spicer.  Spicer’s threat stated, “Sir, if you take my advice, you will take your departure for a more genial clime, as I don’t think this one healthy for you much longer.  As you are liable to get a hole through your coat at any moment.  If such sons of bitches as you are allowed to dispense Justice in this Territory, the sooner you depart from us the better for you and the community at large.  You may make light of this, but it is only a matter of time … you will get it sooner or later so, with those gentle hints I will conclude for the first and last time.”

Two weeks after that, Virgil Earp was ambushed by several men — most likely Ike Clanton, perhaps even Will McLaury, likely also Frank Stillwell (a noted back shooter) — as he walked home from making his late-night patrol through the town.  Two loads of buckshot left his arm immobile for the rest of his life.  Authorities charged Ike Clanton with attempted murder, but of course, several Cowboys testified that Ike couldn’t have tried to murder Virgil because he was with them the entire night.

Spicer reacted angrily to the threat and wrote a reply, published in the Tombstone Epitaph.  He wrote, “I have been reviled and slandered beyond measure, and that every vile epithet that a foul mouth could utter has been spoken of me — that of corruption and bribery.  It is but just to myself that I should hereby assert that neither directly or indirectly was I ever approached in the interest of the defendants, nor have I received any favor of any kind from them or for them.  There is rabble in our city who would like to be thugs if they had courage; would be pleased to be called cowboys, if people gave them that distinction; but as they can be neither, they do the best they can to show how vile they are, and slander, abuse, and threaten everybody they date to.  In conclusion, I will say that I will be here just where they can find me if they want me.”

In March 1882, another act of revenge took the life of Morgan Earp.  Someone fired a bullet fired through the window of a pool hall.   The bullet struck Morgan in his abdomen and then passed through his body and severed his spinal column.  Morgan lived for about another hour.  Before he died, Morgan allegedly said, “I have played my last game of pool, boys.”

Following the Hearing and Wyatt Earp’s Vengeance Ride, Spicer returned to prospecting — at first in Arizona, and later in Sonora, Mexico.  Some accounts suggest that Spicer lost all his money in bad mining investments, subsequently wandered into the Arizona desert, and took his own life.  This is likely true because shortly before his disappearance, Spicer visited a man named Bill Haynes, who later said that while Spicer stayed with him, he’d tried to commit suicide on two occasions.


  1. Bailey, L. R.  A Tale of the Unkilled: The Life, Times, and Writings of Wells Spicer.  Western Press, 1999.
  2. Bagley, W.  Blood of the Prophets: Brigham Young and the Mountain Meadows Massacre.  University of Oklahoma Press, 2002.
  3. Lubet, S.  Murder in Tombstone: The Forgotten Trial of Wyatt Earp.  Yale University Press, 2004.
  4. Shillingberg, W. B.  Tombstone, A.T.: A History of Early Mining, Milling, and Mayhem.  University of Oklahoma Press, 2016.


[1] Congress created US Commissioners of the federal courts in 1793, whose duties involved assisting federal judges in the enforcement of certain laws.  They might serve as magistrates and federal justices of the peace, administrative law judges, or take on clerking responsibilities, such as taking affidavits and depositions, and setting bail.  After 1812, the congress expanded the role of commissioners to include law enforcement duties and preside over deportation hearings.  Most commissioners were lawyers who carried out their judicial duties while maintaining their private law practices.  

[2] See also, A Western Dragoon.

[3] The Nugget was a pro-Democrat/Cowboy newspaper in competition with the Tombstone Epitaph.  The former was as reliable as the present-day New York Times

[4] Thomas Fitch (1838-1923) was born in Manhattan, New York City.  He was employed as a clerk and an editor of the Milwaukee Free Democrat, an editor of the San Francisco Times and Placerville Republican, studied law, practiced law, and served as a member of the California Assembly.  In Nevada, he served as a member of the State Convention, was a nominee for Territorial Delegate to Congress in 1864, a district attorney of Washoe County, a member of the US congress, and a practicing attorney in Nevada, Utah, and Arizona.  Some of his more notable clients were Brigham Young (in the Mountain Meadow affair), Virgil, Morgan, and Wyatt Earp, and Ed Tewksbury.

[5] Will McLaury (1844-1913) was born in New York but grew up in Iowa.  Before becoming an attorney, Will farmed in the Dakotas, later moving to Dallas/Fort Worth, Texas.  Will’s wife died in 1881, and he was left with three small children.  Then, his younger brothers were killed in October.  His vitriolic participation in the trial may have done more harm than good and he was bitter about the trial’s result and there were rumors that Will may have had a hand in the shotgun assault on Virgil Earp and the assassination of Morgan Earp.  Will later became a Fort Worth Judge.

About Mustang

Retired Marine, historian, writer.
This entry was posted in American Frontier, American Southwest, Arizona Territory, Gunfights and such, History, Justice, Politicians. Bookmark the permalink.

6 Responses to Tombstone Judge

  1. Andy says:

    Fascinating details which clarify an iconic occurrence in the Old West. In the end, neither side of the conflict at the OK Corral, escaped unscathed. Justice, it seems, has a way of always, or almost always, winning out.

    Liked by 1 person

    • Mustang says:

      If we lived in a just society, then there would be universal agreement about what justice means. We may agree that justice is one of the cardinal virtues, but one that eludes us because we cannot agree on what justice means in all circumstances. I doubt there is any definition clearer than Justinian’s, who, having opined that justice is “the constant and perpetual will to render to each his due,” reveals to us that justice must always be subjective … and only within our grasp if we think justice has been served.

      Liked by 1 person

  2. A tale well told.

    Liked by 1 person

  3. Andy says:

    Maybe you definition of justice (or more precisely that of Justinian) is more accurate than most. But, in the past, it seems that the last man standing got to define justice.


    • Mustang says:

      Excellent observation, sir. In the minds of many Americans, justice is like a unicorn; everyone knows it exists but no one has seen it recently.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.