November 3, 1881
Tombstone Daily Nugget
THE EARPS' EXAMINATION Testimony of Sheriff John H. Behan, an Eyewitness of the Tragedy."The examination of the Earp brothers and J.H. (Doc) Holliday was continued yesterday before Justice Wells Spicer. When the court convened the Hon. Thos. Fitch arose and, addressed his honor, said that it appeared impossible to curtail the enterprise of the press, he hoped the order against the publication of the testimony would be revoked; that the Nugget had so far furnished its readers with a full account of the trial, and had published all the testimony taken on Tuesday. His honor therewith revoked the order. The morning session was consumed in the argument of a point raised by one of the attorneys for the defendants, who contended that the justice of the peace sitting as the examining court was entirely without any judicial function; that he was merely a ministerial officer, and as such has no power to pass on the relevancy or materiality of evidence offered. Or, in other words, he was only a clerk whose only duty was to write down such evidence as it was offered, and when an objection or exception was taken, to note the same on the deposition. The court decided in an examining trial the justice acted as a court, and in consequence had power to pass on the admissability of any evidence offered. If any other position ahd been taken by the magistrate the trial might have consumed just as much time as counsel saw proper to devote to it; and indeed, the evidence under such a ruling need not apply to the case at all in order to be given in full on the depositions, John H. Behan, being sworn, says:I am Sheriff and reside in Tombstone, Cochise County, Arizona. I know the defendants, Wyatt Earp and John H. Holliday; I know Virg and Morg Earp; I knew Thomas McLowry, Frank Mclowry and William Clanton; I was in Tombstone October 26, when a difficulty, or shooting affray took place the parties named. The first I knew that there was likely to be any trouble, I was sitting in a chair getting shaved in a barber shop; it was about a half past one or two, it may have been later, but not much; saw a crowd gathering on the corner of Fourth and Allen streets; someone in the shop said there was liable to be trouble between the Clantons and the Earps; there was considerable said about it in the shop and I asked the barber to hurry up and get through, as I intended to go out and disarm and arrest the parties; after I finished in the barber shop I crossed over to Hafford's corner; saw Marshal Earp standing there and asked him what was the excitement; Marshal Earp is Virgil Earp; he said there was a lot of s-s of b-s in town looking for a fight; he did not mention any names; I said to Earp you had better disarm the crowd; he said he would not, he would give them a chance to make a fight; I said to him it is your duty as a peace officer to disarm them rather than encourage a fight; don't remeber what reply he gave me, but I said I was going down TO DISARM THE BOYSI meant any parties connected with the cowboys who had arms; Marshal Earp at that time was standing at Haffor's door; several people were around him; Morgan Earp and Doc Holliday were standing out near the middle of the street at or near the intersection of Allen and Fourth street; I saw none other of the defendants there; Virgil Earp has a shotgun, with the muzzle touching the door-sill, down at his side; I did not see any arms on the others at that time; I then went down Fourth street to the corner of Fremont, and I met there Frank McLowry holding a horse and talking to somebody; I greeted him; I said to him: (Defendants here to any conversation between witness and Frank McLowry, Court overrules objection at his time.) I told McLowry that I would have to disarm him, as there was likely to be trouble in town, and, I propsed to disarm everybody in town that had arms. He said he would not give up his arms as he did not intend to have any trouble; I told him he would have to give up his pistol all the same; I may have said gun, as gun and pistol are synonomous terms; about the time I saw Ike Clanton and Tom Mclowry down the street below Fly's photograph gallery; I said to Frank, "Come along with me;" we went down to where Ike Calnton and Tom were standing; I said to the boys, "You must give up your arms." Frank McLowry demurred; I don't know his exact language; he did not seem inclined, at first, to give up his arms. Ike Told me he DID NOT HAVE ANY ARMSI put my arm around his waist to see if he was armed, and found that he was not; Tom Mclowry showed me, by pulling his coat open, that he was not armed; I saw five standing there and asked how many were of them; they said four of us; this young man Claiborne said he was not one of the party; he wanted them to leave town; I said boys you must go up to the shriffs office and take your arms off and stay there until I get back; I told them I was going to disarm the other party; at that time I saw the Earps and Holliday coming down the sidewalk, on the south side of Fremont street; they were a little below the post-office; Virgil, Morgan, Wyatt Earp and Doc Holliday were the ones; I said to the Clantons wait here awhile, I see them coming down, I will go up and stop them; I walked up the street twenty-two or twenty-three steps and met them at Bauer's butcher shop; under the awning, in front, and told them not to go any further, that I was down there for the purpose of arresting and disarming the Mclowrys and Clantons; they did not heed me and I threw up my hands and said go back, I am sheriff of this County and I am not going to allow any trouble if I can help it; they brushed past me and I turned and went with them, or followed them two steps or so in the rear as they went down the street, expostulating with them all the time; when they arrived within a very few feet of the Clanton and McLowrys I heard one of them say- I THINK IT WAS WYATT EARP-"You s-s of b-s have been looking for a fight and now you can have it;" about that time I heard a voice say "throw up your hands;" during this time I saw a nickle-plated pistol pointed at one of the Clantons- i think it was Billy Clanton- my impression at the time was that Holliday had the nickle-plated pistol; I will not say for certain that Holliday had it; these pistols I speak of were in the hands of the Eapr party; when the order was given "throw up your hands," I heard Billy Clanton say "Don't shoot me, I don't want to fight;" Tom McLowry at the same time threw open his coat and said, "I have nothing," or "I am not armed;" he made the same remark and gesture that he made to me when he first told me he was not armed; I can't tell the position Billy Clantons hands at the time he said "I don't want to fight;" my attention was directed just at that moment at the nickle-plated pistol; the nickle-plated pistol was the first to fire, and another followed instantly; those two shots were not from the same pistol; they were too nearly instantanious to be fired from the same pistol; the nickle-plated pistol was fired by the second man on the right; the seond shot came from the thrid man from the right. THE FIGHT BECAME GENERALTwo or three fired shots were very rapidly after the first shot; by whom I do not know, the two shots were fired by the Earp party; I could not say by whom; the next three shots I though at the time came from the Earp party; this was my impression at the time of being on the ground and seeing them; after the party said,"Throw up your hands;" the nickle-plated pistol went off immediatly; I think V.W. Earp said "Throw up your hands;" there was a good deal of fighting and shooting going on; I saw Frank Mclowry staggering on the street, with one hand on his belly and his pistol in his right; I saw his shoot at Morgan Earp, and from the direction of his pistol should judge that the shot went into the ground; he shot twice there in towards Fly's building at Morg Earp, and he started across the street; heard a couple of shots from that direction; looked and saw McLowry running, and a shot was fired and he fell on his head; heard Morg Earp say "I got him;" there might have been a couple of shots afterwards, but that was about the end of the fight; can't say I saw the effect of the first two shots; the only parties I saw fall were Morgan Earp and Frank McLowry; my impression was that the nickle-plated pistol was pointed at Billy Clanton; the first man I was certain was hit was Frank McLowry, as I saw him staggering and bewildered and knew he was hit; this shortly after the first five shots; I never saw any arms in the hands of the Mclowry party except Frank McLowry and Billy Clanton; saw Frak McLowry on the sidewalk within a few feet of the inside line of the street; did not see a pistol in the hands of any of the McLowry party until eight or ten shots had been fired; Ike I think went through Fly's building; the last I saw of him was he was running through the back of Fly's building towards Allen street.
At conclusion of the above testimony court adjourned until 9 o`clock this morning.The Examination- Reported November 4, 1881