Green County, Missouri Coroner’s Report, July 21, 1865
State of Missouri
County of Green
Be it remembered that on the 21st day of July A.D. 1865 information having been given to the subscriber Coroner of Said county that the dead body of Davis K. Tutt supposed to have come to his death by violence had been found at the Court House door in the town of Springfield, on the 21st day of July A.D. 1865. I issued a warrant to the Constable of the township of Campbell requiring him to summon a jury according to law to appear fourthwith at the above mentioned place to examine in what manner and by whom the deceased came to his death. At the time [I also] issued a subpoena for Oliver H. Scott, E.J. Armstrong, L. F. Lee, A. J. Budlong, F. W. Scholter, Thos. D. Hudson, J. W. Orr, [and] W. S. Riggs to appear at the time and place aforesaid. And the said Constable aforesaid at the time and place mentioned in said warrant returned the same that he had Summoned John Hursh, Jay L. French, L. M. Bigbee, Wm. Massey, A. F. Church, [and] John L. Holland to appear as therein required and also that he summoned the Said witnesses to appear as required by subpoena. There upon the said jury appeared at the time and place mentioned and being duly impaneled and sworn proceeded to enquire into the manner and by whom the said Davis K. Tutt came to his death. …
… Dr. E. Ebert Being Sworn Says:
He made on evening July 21st 1865 an examination of the body of Davis K. Tutt and found that a bullet had entered on the right side between the 5th and 7th rib and passed out on the left between the 5th and 7th rib. The examination being only superficial could not state the precise point. From his sudden death I am led to believe that some of the large blood vessels were wounded. Dr. Edwin Ebert, Sworn to & Subscribed before me July 22 1865 J. F. Brown, Coroner …
… State of Missouri
County of Greene
To the judge of the circuit court of Greene County, The undersigned asks to [inform] you that one Davis K. Tutt was killed yesterday by one James B. Hiccock [Hickok]. As coroner of Greene County, I empaneled a jury to investigate the cause of the death of said Davis K. Tutt. The jury after hearing the evidence makes the following return: That said Tutt “Came to his death in a manner & by means of a pistol shot & the jury further finds that the said violence causing said death was committed by a certain James B. Hackock.”
J. F. Brown, Coroner of Greene County
Indictment for Manslaughter, August 5, 1865
State of Missouri
County of Green
State vs Jas. [James] B. Hickok
The Court instructs the jury:
That if they believe from the evidence that Tutt advanced on the Defendant with a pistol drawn, that he had previously made threats of violence to the Defendant which had been communicated to the Defendant, & that Tutt was a fighting character or a dangerous man, there are circumstances from which the Defendant may have had prior cause to believe Tutt intended to do to the Defendant severe great personal injury. That if they believe from this evidence that Tutt advanced on the Defendant with a drawn pistol, and that the conduct of Tutt on this occasion with his general character known to the Defendant was such as to reasonably cause the Defendant to apprehend a design in the part of Tutt to do the Defendant severe great personal injury, & if they believe from the evidence the Defendant had reasonable cause to apprehend [immediate] danger of such design being accomplished at the time he shot Tutt, they will acquit the Defendant.
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 believes from the evidence that Tutt was a fighting character, & a dangerous man, & that Defendant was aware such was his character, & that Tutt at the time he was shot by the Defendant was advancing on him with a drawn pistol, & that Tutt had previously made threats of personal injury to Defendant & that Defendant had been informed of such threats & that Defendant shot Tutt to prevent the threatened [impending] injury & that at this time the Defendant shot Tutt, then Defendant has reasonable cause to apprehend Tutt. [That he] intended to do Defendant several great personal injury & that the danger to Defendant was of such design … the jury will acquit …
… The State asks the Court to instruct the jury:
If they believe from the evidence that the defendant intentionally shot at the deceased Davis Tutt—and the death of said Davis Tuff was caused thereby—they will find defendant guilty—unless they are satisfied from the evidence that he acted in self-defense.
That defendant is presumed to have intended the natural and probable consequence of his own acts.
The defendant cannot set up in justification that he acted in self-defense if he was willing to engage in a fight with deceased.
To be entitled to acquittal on the ground of self-defense, he must have been anxious to avoid a conflict and must have used all reasonable means to avoid it.
If the deceased and 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.
If it appears that the conflict was in anyway premeditated by the defendant he is not justifiable.
The crime charged in the indictment is complete whether there was malice or not.
If the jury have any reasonable doubt as to the defendant’s guilt, they will give him the benefit of such doubt and acquit him.
But such doubt must be a reasonable, not a mere possibility—it must be such a doubt as leaves the mind dissatisfied with a conclusion of guilt.
This rule as to a reasonable doubt does not apply as to matters set up in justification.
If the defendant claims to have acted in self-defense it is his duty to satisfy you that he so acted and it is not sufficient to create a doubt in your minds whether he so acted or not.
The jury will disregard evidence as to the moral character of deceased and as to his character for loyalty as the character of the deceased could afford no excuse for killing him.
Every murder includes in it the crime of manslaughter and if the Jury believe that the defendant has committed the crime of murder in the first or second degree they will find him guilty under this indictment of manslaughter, the crime charged in this indictment.
The Court instructs the Jury that they may disregard all that part of the evidence of Tutt’s declaration to Lieut Warner.
The Court instructs to disregard all Warner’s testimony.
That the Jury will disregard any threats made by Tutt against Haycocke [Hickok] prior to the meeting at the Lyon House in Haycocke’s room. …
Springfield, Missouri Weekly Patriot, August 10, 1865, pg. 3.
The trial of [William Hickok] for killing of Davis Tutt, in the streets this city week before last, was concluded on Saturday by a verdict of not guilty, rendered by the jury about ten minutes after they retired to the jury room. General dissatisfaction felt by the citizens of this place with the verdict is in no way attached to our able and efficient Circuit Attorney, nor the court. It is universally conceded that the prosecution was conducted in an able, efficient, and vigorous manner, and that Col. Fyan is entitled to much credit for the ability, earnestness, and candor exhibited by him during whole trial. He appeared to be a full match for the very able Counsel who conducted the defense—neither can any fault be found with the Judge, who conducted himself impartially throughout the trial, and whose rulings, we believe, gave general satisfaction. …
Those who severely censure the jury for what they regard as a disregard of their obligations to the public interest, and a proper respect for their oaths, should remember that they are partly to blame themselves. The citizens of this city were shocked and terrified of the idea that a man could arm himself and take a position at a corner of a public square, in the centre of the city, and await the approach of his victim for an hour or two, and then willingly engage in a conflict with him which resulted in his instant death; and this, too, with the knowledge of several persons who seem to have posted themselves in safe places where they could see the tragedy enacted. But they failed to express the horror and disgust they felt, not from indifference, but from fear and timidity.
Public opinion has much to do with the administration of justice, and when those whose cease of justice and respect for law should prompt them to speak out and control public sentiment, fail to do so, whether from fear or indifference, we think they should not complain of others. That the defendant engaged in the fight willingly is not disputed, and lawyers say—and the Court instructed the jury to the same effect—that he was not entitled to an acquittal on the ground of self-defense unless he was anxious to avoid the fight, and used all reasonable means to do so; but the jury seems to have thought differently.
Harper’s New Monthly Magazine, “Wild Bill,” February 1867
… The main feature of the story of the duel was told me by Captain Honesty, who was unprejudiced, if it is possible to find an unbiased mind in a town of 3,000 people after a fight has taken place. I will give the story in his words:
“They say Bill's wild. Now he isn't any sich thing. I've known him [going] on ter ten year, and he's as civil a disposed person as you'll find he-e-arabouts. But he won't be put upon.”
… “You see,” continued the Captain, … “Ever sin Dave come back he had tried to pick a row with Bill; so Bill wouldn't play cards with him anymore. … He says to Bill:
“’Bill, you've got plenty of money—pay me that forty dollars yer owe me in that horse trade.’
“And Bill paid him. Then he said: “‘Yer owe me thirty-five dollars more; yer lost it playing with me t'other night.’
Dave’s style was right provoking; but Bill answered him perfectly gentlemanly: “‘I think yer wrong, Dave. It's only twenty-five dollars. I have a memorandum of it in my pocket down stairs. If it's thirty-five dollars I'll give it yer.’”
“Now Bill's watch was lying on the table. Dave took up the watch, put it in his pocket, and said: ‘I'll keep this yere watch till yer pay me that thirty-five dollars.’
“This made Bill shooting mad; fur, don't yer see, Colonel, it was a-doubting his honor like, so he got up and looked Dave in the eyes, and said to him: ‘I don't want ter make a row in this house. It's a decent house, and I don't want ter injure the keeper. You'd better put that watch back on the table.’
“But Dave grinned at Bill mighty ugly, and walked off with the watch, and kept it several days. … and they told him that Tutt was a-goin ter pack that watch across the square next day at noon.
“I heard of this, for everybody was talking about it on the street, and so I went after Bill and found him in his room cleaning and greasing and loading his revolvers.
“‘Now, Bill,’ says I, ‘you’re goin to get inter a fight.’”
“‘Don't you bother yerself, Captain,’ says he. ‘It’s not the first time I have been in a fight; and these d—d hounds have put on me long enough. You don't want me ter give up my honor, do yer?’
“‘No, Bill,’ says I, ‘yer must keep yer honor.’
“Next day, about noon, Bill went down on the square. He had said that Dave Tutt shouldn't pack that watch across the square unless dead men could walk.
“When Bill got onter the square he found a crowd stanin in the corner of the street by which he entered the square, which is from the south, yer know. In this crowd he saw a lot of Tutt’s friends; some were cousins of his’n, just back from the reb army; and they jeered him, and boasted that Dave was a-goin to pack that watch across the square as he promised.
“Then Bill saw Tutt stanin near the court-house, which yer remember is on the west side, so that the crowd was behind Bill.
“Just then Tutt, who was alone, started from the court-house and walked out into the square, and Bill moved away from the crowd toward the west side of the square. Bout fifteen paces brought them opposite to each other, and about fifty yards apart. Tutt then showed his pistol. Bill had kept a sharp eye on him, and before Tutt could point it Bill had hi’sn out.
“At that moment you could have heard a pin drop in that square. Both Tutt and Bill fired, but one discharge followed the other so quick that it's hard to say which went off first. Tutt was a famous shot, but he missed this time; the ball from his pistol went over Bill's head. The instant Bill fired, without waitin ter see if he had hit Tutt, he wheeled on his heels and pointed his pistol at Tutt’s friends, who had already drawn their weapons.
“‘Aren’t yer satisfied, gentlemen?’ cried Bill, as cool as an alligator. ‘Put up your shootin-irons or there’ll be more dead men here.’ And they put ‘em up, and said it was a fair fight.”
“What became of Tutt?” I asked of the Captain, who had stopped at this point of his story and was very deliberately engaged in refilling his empty glass.
“Oh! Dave? He was as plucky a feller as ever drew trigger; but Lord bless yer! It was no use. Bill never shoots twice at the same man, and his ball went through Dave's heart. He stood stock-still for a second or two, then raised his arm as if ter fire again, then he swayed a little, staggered three or four steps, and then fell dead.
“Bill and his friends wanted ter have the thing done regular, so we went up ter the Justice, and Bill delivered himself up. A jury was drawn; Bill was tried and cleared the next day. It was proved that it was a case of self-defense. Don’t yer see, Colonel?
…”Yes,” I admitted, with some hesitation, remember that I was not in Boston but on the border, and the code of honor and mode of redress differ slightly in the one place from those of the other. …
Source: Joseph G. Rosa, Wild Bill Hickok Gunfighter, University of Oklahoma Press, 2001, p. 91