Personal Injury

Debating Culture and the Courtroom—Past and Present

When Guilt or Innocence Depends on the Era, Continued

Things could not have looked good for the defendant when the judge began instructing the jurors that:

To be entitled to acquittal on the ground of self-defense, [the defendant] must have been anxious to avoid a conflict, and must have used all reasonable means to avoid it. If the deceased and the defendant engaged in a fight or conflict willingly on the part of each, and the defendant killed the deceased, he is guilty of the offense charged, although the deceased may have fired the first shot.(Rosa 1979, 77)

These instructions sound like curtains for Wild Bill. The fight was a foolish one, over nothing more than the display of a watch, and Bill certainly invited it, even if he did not fire the first shot. Judge M'Afee seemed to instruct the jury that a conviction was its only option under the law.

But there was more to it than the written law; there was also the law of the frontier. The court went on to elaborate:

That when danger is threatened and impending a man is not compelled to stand with his arms folded until it is too late to offer successful resistance & if the jury believe from the evidence that Tutt was a fighting character & dangerous man & that Deft [defendant] was aware such was his character & that Tutt at the time he was shot by the Deft was advancing on him with drawn pistol & that Tutt had previously made threats of personal injury to Deft . . . & that Deft shot Tutt to prevent the threatened impending injury [then] the jury will acquit.(Rosa 1996, 121-22)

In strictly legal terms, of course, the instructions seem contradictory. In cultural terms, however, the contradiction is easier to understand. The judge was offering the jurors a choice. They could follow the demands of the government's law, or they could apply the unwritten cultural law of the "fair fight." If they believed that Hickok should have walked away, then they would convict him. Alternatively, they could put themselves in Hickok's shoes. Confronted by a dangerous, aggressive opponent, he could stand his ground without risking the gallows.

Exercising its discretion, the jury voted quickly for acquittal, a verdict that was not completely popular at the time. The Missouri Weekly Patriot censured the jurors for disregarding both "their obligations to the public interest [and] a proper respect for their oaths." It was not entirely the jury's fault, however. Springfield's leading citizens, argued the editors, had likewise "failed to express the horror and disgust they felt thus forfeiting their opportunity to influence the jury's verdict in the direction of law and order. On the question of culture versus law, the Missouri Weekly Patriot made this observation:

Public opinion has much to do with administration of justice, and when those whose sense of justice and respect for law should prompt them to speak out and control public sentiment, fail to do so, whether from fear or from indifference, we think they should not complain of others. (Rosa 1979, 79)

Of course, that may have been wishful thinking on the part of the press. It is not so clear that Springfield's prevalent sense of justice dictated such rigorous respect for the law. As one historian later put it, "Nothing better described the times than the fact that dangling a watch held as security for a poker debt was widely regarded as a justifiable provocation for resorting to firearms."(O'Connor, 89) As late as 1933, a former secretary of the Kansas State Historical Society observed that "any candid, fair-minded man" would have concluded that Hickok was not guilty, in that:

[H]e gave due notice that he would not permit his watch to be carried across the Square; that he was defied by Tutt and his friends; that Tutt fired, and may have fired first; that while Bill intended to kill Tutt if he persisted in carrying the watch across the Square, he did not wish to kill . . . And when Wild Bill appeared on the Square, Tutt hurried to meet him, still carrying the watch.(Connelley, 88)

This is not to say that Wild Bill should have been convicted or that the jury was wrong. Rather, the point is that court judgments are derived from a combination of abstract legal principles ("the defendant cannot set up justification that he acted in self-defense if he was willing to engage in a fight with deceased"), and factually specific cultural determinations ("Tutt at the time he was shot by the Deft was advancing on him with a drawn pistol"). Popular culture, of course, affects law. In turn, law facilitates the further direction of popular culture.


Connelley, William E. Wild Bill and His Era: The Life and Adventures of James Butler Hickok. 1972.

O'Connor, Richard. Wild Bill Hickok. 1959.

Rosa, Joseph G. They Called Him Wild Bill: The Life and Adventures of James Butler Hickok. 2d ed., rev. ed. Norman: Univ. Oklahoma Press, 1979.

____ . Wild Bill Hickok: The Man and His Myth. Lawrence: Univ. Press of Kansas, 1996.

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