You Will Shoot Your Eye Out

Situation: A sick man with a bad reputation “gets away with” shooting some people.

Lesson: Deadly force law, in the 19th Century and the 21st, contains elements not widely known then or now by the general public.

Born in Georgia and dying in Colorado, Dr. John Henry Holliday became something between famous and infamous in the 36 years in between. He was a genuine dentist and by all accounts a very good one, but unable to make a living at it because patients didn’t want a man known to have tuberculosis breathing into their faces.

This forced him into a feast-or-famine existence in professional gambling. Said to be skilled at card-counting, and accused of cheating by some, he was known to rake in some substantial pots but by all accounts his overindulgence in alcohol got in the way of sustained profitability. It also doubtless got him into some of the continuous trouble dogging him throughout his short life.

Holliday had contradictory relationships with the criminal justice system. On one hand, some of the most respected lawmen of his day stood up for him publicly: Wyatt Earp, of course, but also Bat Masterson, Pima County (AZ) Sheriff Bob Paul, and Tombstone Chief of Police Virgil Earp who de facto deputized him and armed him with a shotgun on the day of the OK Corral shooting. But on the other hand, Holliday was often arrested, paid many fines, and became intimately familiar with the inside of various jail cells on multiple occasions.

His history as a gunfighter spawned wide-swinging debate among newspapermen in his own time and historians of today. At least one of the latter insists Holliday only killed one man in his life. At the opposite extreme, the Denver Republican said of Holliday in 1882, “The murders committed by him are counted in the scores, and his other crimes are legion.” (1)

Just how skilled at arms was Holliday? Walter Noble Burns, the first author to create the aura of Wyatt Earp as “the lion of Tombstone,” characterized Holliday as an “excellent shot.” Writer Mary Doria Russell was less impressed with Holliday’s marksmanship and hit ratio. She noted, “The mythology isn’t accurate, and neither was Doc! …, I’ve learned from Jeff Guinn’s book The Last Gunfight that Doc participated in a rifle contest while in Tombstone. He ranked very near the bottom of the contestants. My reading of all this is that Doc’s marksmanship was much like my typing skills: we’re quick but not accurate!” (2)

About The Ed Bailey Killing

The legend of Doc Holliday includes the story in Fort Griffin, Texas in 1878, he got into a fight at a gambling table with one Ed Bailey, who Holliday accused of cheating at cards. Bailey supposedly attempted to go for a gun and Holliday drew a large fighting knife from under his coat and stabbed him center mass. One account of the event has Bailey dying from the wound, while in another he survives. We’ll get to a third version momentarily.

The story continues Holliday was taken into custody and fearing a lynching, his girlfriend Katherine “Big Nose Kate” Harony started a fire to divert attention, and then “sprung” Doc at gunpoint, fleeing with him. The tale ends there, with no attempt to arrest and extradite him subsequently.

If the story is true, it’s a testament to poor communications between law enforcement agencies in the American West in the latter 19th Century. However, there seems to be no contemporary records corroborating the account. Respected Western historians and Holliday biographers have expressed doubt it ever happened at all, and both Katherine Harony and Wyatt Earp declared the story to be false during their lifetimes.

Joyce Shooting

The shooting of saloon proprietor Milton Joyce showed the lack of seriousness with which the criminal justice system in Tombstone, Arizona in 1880 treated “shooting scrapes.” The following is from Gary L. Roberts’ excellent book, Doc Holliday: the Life and Legend.

On Sunday evening, October 10, Holliday got into an argument with (John) Tyler near the Oriental (saloon) “which boded a shooting scrape.” Marshal White or Officer James Bennett disarmed both men to defuse the situation and deposited their pistols behind the bar at the Oriental.

“Later, both men returned to the Oriental, where the argument was renewed. Milt Joyce asked Tyler to leave the saloon, ‘as he didn’t want trouble.’ Tyler left, but when Joyce ‘remonstrated with Holliday,’ Doc, who was apparently intoxicated, got into an argument with Joyce during which Joyce ‘bodily fired’ Doc out of the saloon. Doc was no physical match for the burly former blacksmith, who easily threw him into the street. Uncowed, Doc returned and demanded the return of his pistol from behind the bar. Joyce refused to give it to him.

“Infuriated and humiliated, Holliday left again, found another pistol, and returned. He approached Joyce, who was coming out from behind the bar, ‘and with a remark that wouldn’t look well in print, turned loose with a self-cocker.’ Joyce pulled his own pistol and charged Doc, perhaps firing at him once, before using it to knock Doc to the floor with a blow to his head. As they struggled, Marshal White and Officer Bennett arrived and separated them.

In the melee, several shots were fired. Joyce was wounded in the hand, and William Parker was shot in the big toe of his left foot. Gus Williams, a bartender, had fired a shot, which hit no one. Doc was bleeding badly from the blow to his head, and observers thought at the time that he ‘was severely, if not fatally, hurt.’ He was lifted into a chair, and Joyce was escorted out of the saloon. When it was clear Holliday was not critically injured, he was arrested.

“The following day, Fred White secured a warrant against Holliday sworn out by Joyce on a charge of ‘assault with a deadly weapon with intent to kill,’ before Justice of the Peace James Reilly. The next day Doc pleaded guilty to assault and battery even though no witnesses appeared against him in Reilly’s court. He was fined $20 plus $11.25 in court costs.”

Author Roberts considered that getting off lightly, which is an understatement by today’s standards. In today’s America, the tubercular dentist would have died in prison for pleading guilty to that crime.

The OK Corral Aftermath

The most famous gunfight in the history of the Old West took about 30 seconds on October 26, 1881, and is still being debated to this day. We’ve discussed it at length in past Ayoob Files (available online at The Ayoob Files).

For Holliday’s part, it is unquestioned he was the one who shot and killed Tom McLaury. Tom died from a 12-pellet blast of buckshot, and Holliday was the only person at the scene wielding a shotgun, which had been given to him by Virgil Earp. Holliday, alone among the Earp side, was wearing a long “duster” coat that could discreetly conceal the big scatter-gun.

At the end of the fight, it’s pretty much agreed the last man to fall was Tom’s brother Frank McLaury. Frank had been hit in the belly in the beginning seconds of the fight by a slug from Wyatt Earp’s Colt .45. Though the wound had doubled him over, Frank McLaury was still up and running and wielding his own long-barrel Colt single action, a .44-40 Frontier Six-Shooter. Spotting Holliday McLaury shouted at him what would be his last words: “I’ve got you now!”

According to witnesses, the unperturbed Holliday snapped back, “Blaze away! You’re a daisy if you have.”

In the next moment, the famous gunfight came to an end as three men fired virtually simultaneously. Frank McLaury shot Holliday, the bullet skidding off the heavy leather of Doc’s gunbelt, leaving a nasty welt. Holliday returned a revolver shot, and Morgan Earp, who had been downed by a bullet that hit his shoulder and went across his back chipping a vertebra, fired upward from the ground.

Both bullets slammed into McLaury, Holliday’s into the chest and Morgan Earp’s into the head, and McLaury fell heavily into the street. Holliday was heard to cry out, “I’m shot right through. The son of a bitch has shot me and I mean to kill him.” He advanced toward the prostrate McLaury as if to administer a coup de grace, but held his fire when he realized the man was dead and the fight was over.

While we can accept the brain shot by Morgan Earp was the one that decisively downed the last McLaury, Holliday’s shot to the same man’s chest would have been highly likely to be fatal, given the primitive medical care of the time. However, other famous outlaws of the period were known to have survived gunshot wounds to the chest and recovered with little or no medical care. Jesse James and John Wesley Hardin come to mind, and that may be why some historians list the shotgunned Tom McLaury as Holliday’s only “kill” that day.

The shooting polarized the community. The Clanton/McLaury faction was closely tied with county sheriff Johnny Behan, and one of the Tombstone newspapers, along with local Democrats. The Republican Earp faction had the town’s other newspaper on their side. On October 29, warrants were sworn out against Holliday and the three Earp brothers, charging murder. Justice of the Peace Wells Spicer set bail at $10,000 apiece. That $10K in 1881 would have an equivalent value of well over a quarter million dollars today.

Apparently, the justice system in that time and place took it more seriously when three politically connected citizens were killed in the street, than when an angry drunk shot a purveyor of demon rum in the hand.

On November 30, having heard evidence from both sides, JP Spicer ruled that while Virgil Earp taking Holliday with him and giving him the shotgun was “an injudicious and censurable act … I can attach no criminality to his unwise act. In fact, as the result plainly proves, he needed the assistance and support of staunch and true friends, upon whose courage, coolness, and fidelity he could depend, in case of an emergency.”

The prosecution, and some eyewitnesses, maintained Holliday had fired the first shot, but Spicer had accepted Wyatt Earp’s testimony he himself was the one who discharged the very first round, which had struck Frank McLaury. In any case, the Earps, and Holliday, were completely exonerated.

Last Shooting. Last Trial.

In the year 1884, Holliday was living in Leadville, Colorado. Perhaps he thought dry air would ease his tuberculosis, but it appears the wickedly cold winters and thin mountain air would more than offset any such advantage. He had deteriorated to a skeletal 122 lbs. and was described by those who knew him at the time as appearing exceedingly frail.

In Leadville, he had run across many hostile rival gamblers and in particular a nemesis named Billy Allen. Holliday’s gambling luck and his funds had both reached a low ebb, and he found himself owing five dollars to Allen. To the proud dentist’s humiliation, Allen bullied him and threatened him over it.

On one occasion, Allen told him “Holliday, I’ll give you ’til Tuesday to pay this money, and if you don’t pay it, I’ll lick you, you son of a bitch.” Allen told a mutual friend if Holliday didn’t pay him at the appointed time, he “…would knock him down and kick his damned brains out.” Allen told still another party he would “start hunting for him” (Holliday) if the five dollars were not promptly forthcoming. Word of all this reached Holliday’s ears, and he took it seriously.

That day came, and in the afternoon Doc repaired to a bar called Hyman’s. It is believed, knowing it was illegal for him to carry there, he had a friend slip a revolver of Doc’s into a predetermined spot on a shelf near one end of the bar, not far from the door. Holliday stationed himself close to the gun, generally believed to be a double action Colt, probably .41 caliber.

Very shortly, Billy Allen walked in, at least one hand in a pocket as if holding a hidden revolver. Holliday snatched up his Colt and, taking partial cover behind a cigar case, opened fire.

His first shot apparently miss Allen, who either fell or dove to the floor, face down. As he was pushing himself up Holliday fired again, connecting this time. The bullet entered the back of Allen’s upper right arm, cutting an artery. A bystander grabbed Holliday before he could trigger a third shot. Police had been right outside the door, and Holliday surrendered to them readily. No weapon of any kind was recovered from the hemorrhaging Allen.
Charged with “assault with intent to kill,” Holliday languished in jail for months. He would not go to trial for this, his last violent encounter, until March of 1885.

Holliday was promptly acquitted by the jury.

It’s time to look at the “whys.”

Lessons

It was true then and remains true now “allegation” does not necessarily equal “probable cause,” whether or not mainstream media gives false impressions of sensational cases. It’s only hearsay Doc Holliday stabbed someone named Ed Bailey in Fort Griffin.

The legend says Holliday originally fled Georgia because he had murdered some young black people for being in a “whites only” swimming hole. It would have been a heinous felony even in the Deep South in the time of slavery. However, the Holliday family maintained young John Henry had only fired warning shots from a .36-caliber Navy Colt, and some historians can’t even find documentation to support that much.

In the Leadville case, Holliday took the witness stand in his own defense. He explained what he knew of Allen’s promise to harm him if he didn’t pay him the money he didn’t have. A string of witnesses confirmed Allen’s prior threats. There was testimony from one of Allen’s friends Allen had seen Holliday enter the bar and immediately went after him, stating “I am going to hunt this party.” The effect of all this was to establish Holliday was in reasonable fear of death or great bodily harm at Allen’s hands, and the road to this violence had begun with Billy’s previous threats against Doc.

The best analysis of this trial and its outcome I’ve seen comes from the aforementioned Gary L. Roberts in Doc Holliday: The Life and Legend. Here, he quotes Holliday’s testimony at trial: “I knew that I would be a child in his hands if he got hold of me; I weigh 122 lbs.; I think Allen weighs 170 lbs. I have had the pneumonia three or four times; I don’t think I was able to protect myself against him.”

Holliday had just described a principle known today as disparity of force. It comes into play when one’s opponent is not armed with a weapon per se, but has so great a physical advantage over the defender that if the assault continues, it’s likely to cause death or severe injury. Multiple opponents create disparity of force through force of numbers. So can “position of advantage,” where the attacker has the defender in a position where they cannot defend themselves. Ditto known or obviously recognizable high skill in unarmed combat.

In the Holliday/Allen matter, two other elements of disparity of force came into play: distinctly greater physical strength, and the able-bodied attacking the physically disabled. The term “disparity of force” may not have been used in the Holliday trial in Colorado in 1885, but it was certainly an issue in the jury’s deliberations.

Note also the rule of thumb you don’t have to be right, you have to be reasonable. Holliday testified, “I had been told he had a gun and was looking for me; when he came in his right hand was in his pocket; he was about three feet inside the door when I shot; when I shot the first time, he turned and fell; I did not see where his hands were when I shot the second time; I supposed he was going to get there if he could, for I thought he had come there to kill me.”

Holliday obviously testified articulately and believably in Colorado. Why didn’t the defense team put him on the stand in the OK Corral matter? Roberts again has a cogent analysis. “He likely would have been a good witness,” Roberts wrote. “He was bright and savvy enough to have handled himself well on the stand; he could have even submitted a written statement as Wyatt had.

The defense never explained why Doc was not called. Practically, he would have added little to what Wyatt and Virgil had said, but he would have provided the prosecution opportunity to exploit his unsavory reputation and raise questions about his previous brushes with the law in Tombstone. Since the prosecution’s case focused on Doc’s role in precipitating the fight, the defense wisely chose not to put him on the stand. The risks outweighed the advantages.” (3)

Some 135 years later, the reasonableness test applied in both the Tombstone and the Leadville courtrooms remain in effect. So does the disparity of force principle working to Holliday’s advantage in the Leadville trial. The lethal force area is one of the most mature and well-established bodies of law in American jurisprudence. Whether Doc Holliday was a “good guy” or a “bad guy” — or, most likely, a mixture of both — our law holds the evil man has the same rights as the good man.

(1): Denver Republican, May 16, 1882. (2): http://marydoriarussell.net/2011/07/20/docs-marksmanshi/

(3) Roberts, Gary L., Doc Holliday: the Life and Legend, John Wiley & Sons, Inc., 2006, Page 214.