Re: bfrey/ attention please....
Thu Feb 16, 7:34

Thanks Bob ... finally ... why do these discussions carry on when all you have do is search ... take care


Bob Cash
Re: Territory vs. J.H .Holliday
Sat Oct 05, 2013 11:33

I am wondering if the bill for the cost of subpoenaing witnesses would have been presented to the court on the date it was hearing the case. The date on Behan's list of charges, June 2,1881, coincides with the date of the "Territory vs. J.H. Holliday" that was the subject of the thread started by bfrey in March of last year about what charges were being heard.

I can't do better than Gary Roberts, so here's an excerpt from a March 25, 2012 post by him:

In 1881, there were two sessions of the District Court held in Tombstone, the May term (which did not get under way until May 16) and the November term. Because of this, local justices of the peace--like Reilly, Wallace, and Spicer--who met regularly had considerable power. They could hear a case and decide whether to dismiss it or to refer it to the proper grand jury, the county grand jury for territorial cases or to the district federal grand jury in federal cases.

With this in mind, let's revisit the facts about the case you seem most interested in here:

First, the charge was brought by the Cochise County Grand Jury, not by the First District U. S. Grand Jury. See the EPITAPH, May 30, 1881, and remember that the charges related to Doc's "participation in a shooting affray some time since," not interfering with the mails.

Second, when the case was brought before Judge Stilwell on June 2, 1881, it was filed as "Territory of Arizona vs. Doc Holliday." His attorney A. G. P. George brought to the attention of the court that the case was not properly drawn. Doc was asked if his name was Doc; he said he was J. H. Holliday, whereupon Stilwell ordered that the indictment be amended. On June 3, when the case was brought, George ask that the indictment be dismissed because the Grand Jury had been illegally impaneled. This motion was denied. George excepted. NOTE: Other cases also objected to the grand jury and Harry Woods would eventually get into trouble for negligence in calling grand jurors. Later the same day, June 3, George filed a demurrer to the indictment which was overruled. George excepted. He then made a motion for a change of venue. Judge Stilwell ruled that arguments on the motion for a change of venue would be held on Saturday, June 4, and if not granted trial would be set for Monday, June 6. When the case was brought up on Saturday, George moved that the case be continued until the next regular term of the court, ie., the November term.

So, you see that what you have here were legal maneuverings on the part of Doc's attorney. When the November term opened, Doc was in the midst of the Spicer hearing concerning the murders of the McLaurys and Billy Clanton. Judge Stilwell anticipated the legal problems of bringing up a case while that proceeding was in session, so that he ordered the case "passed," ie., moved forward to the next session, meaning the May term, 1882. When Case No 23 came up, Doc Holliday was no longer in Arizona, with the following result: "The defendant was called at the Court Room door and not appearing his bond was by the Court declared forfeited." End of case!

Now a couple of things are worth noting. First, because so many months are involved this seems like a long drawn-out affair, but practically Judge Stilwell only had three shots at him. The first was successfully put off through legal maneuvers; the second was rendered impractical by the Spicer hearing, and the third saw Doc long gone. It is only when you remember that there were only two sessions of the district court in Cochise County that the timing makes sense.

Second, the case is "Territory vs. J. H. Holliday," not "United States vs. J. H. Holliday" which means that this was not a case arising from a federal charge involving the mails.

Third, if you are going to make an argument that this case is related to the Benson affair, you need further evidence. Even in the existing accounts of a second confrontation between Joyce and Holliday, there is no mention of a "shooting affray." That leaves only two choices--the shooting affray was the robbery attempt or the Oriental incident involving Doc, Joyce, and Williams. If you decide it was the former, you are left with the mystery of why the papers did not make a big deal out of an charges being filed in the matter and why Doc was not arrested and held, especially in light of the bru-ha-ha that came when Kate made her charges a little more than a month later.

Why didn't the newspapers make a big deal out of it if it related to the robbery attempt? Why didn't the papers make mention of the fact that there was already a case in the system relating to the same crime when the Kate's accusations were made? Why would the district attorney say that there was no case in Kate's matter if there was already a case relating to the same incident in the mill? Why wouldn't he simply say, this provides more evidence in the case already in process and use Kate's affidavit as evidence in that case?

The newspapers didn't run to the sidelines. By the summer of 1881, the sides were well drawn with the NUGGET and the EPITAPH facing off. The STAR was never bashful. Even if it wasn't about the Earps and the Cow-Boys, there were political divisions between Democrats and Republicans that would have encouraged reporting.

A misdemeanor assault and battery charge in a justice of the peace's court would not preclude a more serious felony charge being brought by a grand jury. It is strung out over a long period of time chiefly by the way that the court system worked.

The sources make it pretty clear that it was Virgil who slapped Joyce after the Spicer hearing. That was reported in the papers.

I do not know where the business of a case involving the mails come from. I've seen the references in secondary accounts, but I'm not sure what records the claim is based on.