Bob,

Spicer should have considered only the evidence introduced during the preliminary hearing through witness testimony or otherwise admitted into evidence during the hearing. There is no indication that the depositions from the Coroner's Inquest were admitted into evidence during the hearing and Fellehey obviously did not testify during the preliminary hearing.

That being said, although Behan's testimony did not include the "Those men have made their threats; I will not arrest them but will kill them on sight" language from Fallehey's Coroner's Inquest deposition, that is not evidence that Virgil did not say them.

Behan was not specifically questioned about whether the language Fallehey said he heard was actually spoken by Virgil or heard by him, and there is some indication that Behan did not recall every word spoken by Virgil at the time. For example, Behan testified to the following:

"I said to him it is your duty as a peace officer to disarm them rather than encourage a fight; don't remember what reply he gave me."

If we take Fallehey at face value that he overheard some of the conversation between Virgil and Behan, its entirely possible that Fallehey was referencing the statement that Behan himself stated he didn't remember. After all, Fellahey is obviously paraphrasing the total conversation he overheard since he only stated that Virgil said, "Those men have made their threats; I will not arrest them but will kill them on sight."

In fact, Virgil's supposed "kill them on sight" attitude was in line with Wyatt's later statement that he believed he "would have been legally and morally justifiable in shooting any of them on sight."