Steve Gatto
"What kind of pistol?"
Sat Aug 31, 2019 05:24


One of my favorite examples of clairvoyance between Fitch (presumably it was Fitch asking the questions) and a witness occurs in Hatch's testimony when describing Doc's pistol:

"Q. What character or style of the [guns](not very legible) did he use during the entire difficulty?

A. I can't tell.

Q. At any stage of it then?

A. When I saw him he had a pistol.

Q. What kind was it?

A. It looked to me like a brown pistol. I did not see him with a nickel-plated pistol during the fight, whether he had one or not I could not say."
(Tombstone Nugget)

During his questions, Fitch was trying to get Hatch (a defense witness who the defense must have talked to before he took the stand to see what information of value for the defense he had to share) to describe the weapon or weapons he saw during the gunfight. However, it appears that Hatch did not follow the defense's prearranged script easily. After a second question about this issue, Hatch states he saw a pistol. Then Fitch asks, "What kind of pistol?" Now, I would expect that a normal response to a question like, "What kind of pistol" might get a response like "a Colt or Smith and Wesson" but Hatch states: "It looked to me like a brown pistol." Okay, not the answer I would expect from a question like "What kind of pistol?" - but okay. Yet, from out of the blue Hatch follows the "It looked to me like a brown pistol" with "I did not see him with a nickel-plated pistol during the fight, whether he had one or not I could not say."

Amazingly, Fitch did not ask Hatch if the pistol Holliday used was a nickel-plated pistol but Hatch, after describing the pistol as "brown," then followed up in his response to the original question with "I did not see him with a nickel-plated pistol" - somehow seemingly knowing what to say without being even asked the question.

Do you think that Hatch was "witness coached" a little on what to say about the color of Doc's pistol?

Several days later, Borland, also a defense witness, seems more prepared for her testimony than Hatch, waiting patiently for the question about the color of the pistol:

"Q. Did you notice the character of the weapon Holliday had in his hand?

A. It was a very large pistol.

Q. Did you notice the color of the pistol?

A. It was dark bronze.

Q. Was it, or was it not, a nickel-plated pistol?

A. It was not."

Hatch's testimony was good for the defense but also caused somewhat of a dilemma for them as well. Hatch's testified, "I heard someone, who I thought was Virgil Earp, say 'We came down here to disarm and arrest you'" and Hatch also claimed that he had not heard anyone say "s--s of b-----s." Although Hatch would not say he would of heard "s--s of b-----s" if he had been said and could not say who fired the first shots.

Yet, the dilemma for the defense came from Hatch's description of the shooting and the pistol Doc was using toward the end of the gunfight. A few days earlier, the defense during cross-examination, had been trying to undermine the prosecution witnesses who were claiming that the first shot was fired by one of the Earp party who was holding a nickel-plated pistol and Claiborne had stated that the man was Doc Holliday. The defense tried to assert that Doc did not fire a nickel-plated pistol at the start of the gunfight because he was holding a shotgun at the beginning of the gunfight and fired it when the shooting started. For example, John Behan was asked, "Is it not a fact that the first shot fired from Holliday was from a shotgun; that he threw the shotgun down and drew the nickel-plated pistol from his person and then discharged the nickel-plated pistol?

Yet, Hatch ultimately testified about the "brown" pistol Doc was holding toward the end of the gunfight and not the weapon he was holding at the beginning of the fight. Did Hatch get his testimony wrong because he was supposed to say that Doc was not holding a nickel-plated pistol at the start of the gunfight? After all, the color of Doc's pistol he was using when he squared off with Frank toward the end of the gunfight was not at issue at the time Hatch testified. Or, is it possible that the defense's initial shotgun theory was presented before the defense had an opportunity to fully developed its witness testimony that they would later present? Something made the defense morph from its initial shotgun theory to the position that it was not a nickel-plated pistol. Could it have been Borland's upcoming testimony that caused the switch? Perhaps, the defense team while discussing with Borland what she saw, could not get her to come off the position that she saw a pistol, and the best they could get her to do was acknowledge that it was a "large" pistol that was "dark bronze." Indeed, you'll notice that defense did not ask her if the "very large pistol" could have been a shotgun - likely because they had already asked her the question in private before she took the stand and they already knew what her answer would be - it was a pistol. If so, perhaps Hatch's testimony that Doc's pistol was not a nickel-plated pistol was elicited to set up Borland's later testimony that the pistol Doc used at the start of the gunfight was not a nickel-plated pistol.

Borland did not get the "bronze" color from the newspapers as the Nugget reported Hatch stating it was "brown" (likely a transcription typo) and I believe that the Epitaph did not published this part of Hatch's testimony. Therefore, either Borland actually thought she saw a "bronze" pistol or the defense provided that information to here and got her to believe that she saw a "bronze" pistol when they were interviewing her before she testified.

  • P.S.Tom Gaumer, Fri Aug 30 22:56
    Gary "Tom, I'm not sure what your problem is with Fitch's questions. His job was to raise doubts about the prosecution's case by impugning the testimony of the prosecution's witness (and using some... more
    • "What kind of pistol?" — Steve Gatto, Sat Aug 31 05:24
      • This can get a little complicated--Yes?Tom Gaumer, Sat Aug 31 12:27
        Howdy Steve With contradictory information it is hard to understand what was going on. The question of Doc's armament and how he used it is a tough one. Fitch would not give up on a story he found... more
    • Are you serious?Jeff Morey, Sat Aug 31 02:40
      Tom, Are you being serious? Do you actually believe that Thomas Fitch was wickedly trying to hoodwink Wells Spicer by posing the questions you cited? I swear, sometimes I think you have lost your... more
      • Senses! I don't have no stinking senses!!Tom Gaumer, Sat Aug 31 13:22
        Jeff I think the lying Fitch was using is usually used in cases where a jury is present in hopes of poisoning the thinking of a least one to get a not guilty. Can also be used to undermine a witness... more
        • You outrage is outrageous!Jeff Morey, Tue Sep 3 08:51
          Tom, Your sense of moral indignation is histrionic. hyperbolic, excessive, extreme, over-the-top, exaggerated and woefully unconvincing. Fitch isn’t “lying”. He’s asking Ike Clanton questions. Does... more
          • our outrage at my outrage you perceive is funnyTom Gaumer, Wed Sep 4 04:50
            Jeff I'm not outraged just observant of ethics by sleazy and/or tricky lawyers. Obviously a lawyer’s questions and the answers are meant to influence the jury and/or the judge and now days the... more
            • You are just repeating yourself. (nm)Jeff Morey, Wed Sep 4 07:36
              • Jeff no testimony by the telegrapher or the gun clerk and ignoring anything else that might reflect on the questions. And we are both happy. Sounds good to me. Keep Laughing Tom
                • Incomplete casesBen Harleman, Wed Sep 4 21:30
                  Hi Tom, I've always regarded the cases as incomplete, due to the fact that both sides were probably keeping their powder dry in case they went to a full trial. I'm not applying this to any specific... more
                  • I think you are right and it makes dealingTom Gaumer, Wed Sep 4 21:57
                    HI Ben with some of these issues difficult to impossible as we just can't know everything about their positions and tactics about a possible trial. Keep Laughing Tom
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