Personal Injury

Debating Culture and the Courtroom—Past and Present

When Guilt or Innocence Depends on the Era
By Stephen Lubet

Source: Originally published in 48 UCLA L. Rev. 1545. Copyright 2001. The Regents of the University of California. All Rights Reserved. Reprinted by permission of the publisher and the author. The full text of Professor Lubet's article is also reproduced in Insights on Law & Society 2.2 (winter 2002), The Trials of Culture Edition.

Two men face each other on a dusty street, guns holstered, trigger fingers itchy. They stand ready, hands poised, each waiting for the other to make the first move. One of the combatants, usually the bad guy, reaches for his weapon, sometimes shouting a taunt or a challenge. "Slap leather!" The firing begins, ending only when one man lies bleeding in the dust. The winner walks slowly (and quietly) away.

Such is the myth of the gunfight in the Old West. There is seldom, if ever, an aftermath. No posse, no arrest, certainly neither trial nor imprisonment. If the sheriff so much as arrives on the scene, the bystanders quickly assure him that it was a "fair fight" or perhaps "self-defense."

In the entire history of the Wild West, the closest thing to an actual "slap leather" gunfight may have been the showdown between Wild Bill Hickok and Davis Tutt in Springfield, Mo., on July 21, 1865. Tutt and Hickok were both gamblers. They had been friends despite the fact that Tutt, an Arkansan, was a Confederate veteran, while Hickok had been a Union scout. They eventually fell out, however, in a dispute over a woman—it was rumored that Hickok once had an affair with Tutt's sister; it may have been that Tutt paid too much attention to Wild Bill's then sweetheart, Susanna Moore.

By July 20, 1865, the two men were avowed enemies. Hickok refused to play cards in any game involving Tutt, who retaliated by financing other players in an attempt to bankrupt Bill by other means. The confrontation came to a head during a poker game at the Old Southern Hotel. Wild Bill played while Dave Tutt watched, standing behind one of Hickok's opponents.(O'Connor, 85)

The game was for high stakes, and Hickok eventually won about $200. Frustrated by his losses, Tutt reminded Hickok of an old debt from a horse trade. Hickok paid the $40, but Tutt wanted more, claiming that Wild Bill owed him another $35 from a poker game (back when Hickok was still playing cards with Tutt).(Connelley, 84-85).

Tutt picked up Wild Bill's prized Waltham repeater watch, which was lying on the table. He stated that he would keep the watch until Bill paid him the $35. Hickok was furious, but there were too many witnesses in the room for him to do anything.

Humiliated, Wild Bill warned Tutt not to wear the watch in public. Tutt sneered back that he would wear it the next morning. "If you do, I'll shoot you," Bill replied. He warned Tutt not to come across the town square wearing the watch.

Tutt may have been a provocateur and a fool, but he was no coward. The next day, he presented himself on the town square with Wild Bill's watch prominently displayed.

Bill approached from the other side of the square, his Colt's Dragoon revolver in hand. At a distance of about 75 yards, Hickok warned him not to cross with the watch. Heedless of the warning, Tutt drew his weapon. The two men fired, so nearly simultaneously that it sounded like a single shot. Tutt was shot through the heart and died almost immediately.

The next day, July 22, a warrant was issued for Hickok's arrest on a "charge of killing." He was arrested two days later, posting bail in the amount of $2,000 after the charge was reduced to manslaughter.(Rosa 1996, 121)

The jury was empanelled on August 3, 1865, and the trial lasted three days, with testimony from 22 witnesses. Hickok was represented by Colonel John S. Phelps, a Union veteran and the wartime governor of Arkansas. The prosecutor was Major Robert W. Fyan. The presiding judge was C. B. M'Afee, another Union veteran who had commanded the army post in Springfield during the Civil War. Unfortunately, the transcript of the proceeding has been lost, although fragments of the official record have survived. There are also a few newspaper accounts from the day.

The witnesses apparently testified that Tutt entered the square wearing a "linen duster," a long coat that evidently impeded his aim. The two men fired so closely together that it sounded like a single "report." One witness saw a flash coming from Hickok's gun, but others saw smoke from both pistols. There was also testimony that Tutt had been the first to draw, after Hickok warned him against carrying the watch onto the square. Tutt's revolver was displayed to the jury with one round missing from the chamber.

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