November 5, 1881
Further Testimony in Behalf of the Prosecution.
Yesterday morning when Court conviened the Judge modified his ruling of Thursday, by deciding that heretoafter no questions on cross-examination should be answered touching the charachter of the deceased, unless the question of charachter for peace and good order, or the opposite, be gone into on direct examination; and that all matters of defense must be introduced by the defendants, unless such matter be connected with or flow necessarily from the evidence given on direct examination.
Sheriff John H. Behan was sworn and his cross-examination continued.By consent, defense asks the following questions out of regular order:
Q. Did you vist Virg. Earp at his residence the evening after the shooting?
A. I did.
Q. Did you see William S. Williams there, an attorney in town?
Q. Did not some discussion ensue between you and Virg. Earp in reference to the difficulty?
Q. Did you not make use of this language in that discussion, conversing with Virg. Earp in presence of Williams, "I went to see them," meaning the Clanton crowd, "and told them to disarm, and they would not do it. I went back and met you, Virg. Earp and party, and spoke to you, and you did not stop. I heard you say, `Boys, throw up your hands; I have come to disarm you,' when one of the Mclowry boys said, `We will, and drew his gun, and shooting then commenced. I am your friend, and you did perfectly right, " or language of the same substance or import?
A. I said something involved in that question. I went down that eveniing, and when I got in the house Virg. Earp said:
"You had better go slow, Behan,and not push this matter too far." I told him I did not come there to have any words; that I intended to do my duty as an officer. Then he said he heard I had tried to get the Vigilance Committee to hang them. I told him I had done nothing of the kind; that I never called upon the Vigilance Committee at all. He said about the same thing that Wyatt did about my throwing them off, and then it was that I told him about meeting them and telling them to stop. In this discussion about the fight he told me that he was my firend. I told him that I had always been his friend. That seemed to settle the matter about the Vigilance Committee. I suppose I told him that I heard him say, "throw up your hands." But I did not tell him that I saw McLowry draw his pistol or heard McLowry say anything. I never said that they did right. Re-examination by the Prosecution:Q. In your cross-examination you stated that you promised Wyatt Earp a position in your office, and that something subsequent occurred that caused you not to do it. Please stte what that something was.
A. It was this; Shortly after I had recieved a telegram from Charles Shibbel, Sheriff of Pima County, under whom I was acting as deputy, to subpoena Ike Clanton. I did not know where Clanton lived at the time. I went to Virg. Earp and asked him. He told me where he lived. I hitvhed up a team and started down to Charleston. I had gotten habout half-way to Charlestonwhen one man dashed up behind me on a run, on horseback. About five minutes after, another passed me. When I got to Charleston, I found a man going to Clanton's place. I gave him the dispatch and told him to hand it to Ike Clanton, and I staid around Charleston half an hour or so and met Wyatt Earp and Doc Holliday there. I think I asked what they were doing or what they were on. Earp told me he was down there after a horse that had been stolen from him. Nothing more was said between us, and I came back to Tombstone. I was in Tucson a few days afterwards. I was told that I came very near getting myself into a hell of a fuss.
Ike Clanton said to me there- [objection raised by defendants' counsel to the relevancy of the testimony. Court overrules objection on the grounds that the witness had the right to explain fully any matter brought out on cross-examination.]- that Earp said I had sent a posse of nine men down there to arrest him (Clanton) and take him to Tucson. The he told me that he had armed his crowd and that he was not going to stand for it.
Q. Who was the first and second man that passed you on your road to Charleston of whom you spoke?
A. It was dark and my impression was that it was Virgil Earp; I did not know; it impressed me that it was his form. The next I thought was Holliday. When I got to Charleston I saw Wyatt, and concluded that I made a mistake, that it was Wyatt instead of Virgil.
Q. Who was with you?
A. Les. Blackburn and a little fellow about town called Lawrence Geary.
Q. Who did you send the dispatch by to Clanton from Charleston?
A. I think the man's name was Gates. I don't remember now.
Q. On what case the subpoena was in?
A. I think Paul v. Shibbell.
Q. Was there a conversation between you and Wyatt Earp immediately after the difficulty as to your decieving him about the McLowrys and Clantons being unarmed, and if so, what was the conversation?
A. There was a conversation on Fremont street near Bauer's butcher shop, on the sidewalk. Wyatt said to me, "Behan you have decieved me," or "thrown me off," or something to that effect. "You said you have disarmed them." I told him he was mistaken, I did not say
ANYTHING OF THE KIND.The I related to him what I had said to him: I said, "Earp, I told you that I was there for the purpose of arresting them and disarming them," He said, he thought I had said that I had disarmed them.
Q. What place was it that you went to all of them (the Earps) and told them you were there for the purpose of disarming the Clanton party?
A. This was at the awning of the butcher shop.
Q. At what distance were the Earps from the Clantons at this conversation?
A. About 23 or 25 steps.
Q. What distance were you from the Clanton party and how near the Earp party when you told the Earps to stop, and that you were there for the purpose of disarming and arresting the Clanton and McLowry party?
A. I was within 9 or 10 feet of the Earps when I commanded them to stop. I was 20 or 21 yards from the Clantons and the Mclowrys.
Q. Where did the killing occur?
A. In Tombstone, Cochise County, Arizona. The man spoken of as Capt. Murray is W. B. Murray, a partner of Mr. Trittle.
Q. At the time you demanded of Frank McLowry his pistol at the corner of Fourth and Fremont streets, and he demurred to giving them up, was that demurrer a conditional one of an abosolute refusal?
A. He said, "I do not want to give up my arms unless the other party are also disarmed."
The prosecution introdeuced as a witness Mrs. M. J. King; I am keeping house for my husband; I reside in Tombstone; I was present in Tombstone on the day the shooting occurred; I don't know exactly what time the shooting affray took place; I was in the butcher shop on Fremont street when the shooting occurred; I heard the firing; while I was in the butcher shop remember of some armed parties pass the door; could not say they were all armed; saw Mr. Holliday with arms; he had a gun; I mean a gun as distinguised from a pistol; can't tell difference between a shotgun or rifle; don't know whether it was a shotgun or rifle; I can identify the man in this room who had the gun. [ witness identifies Mr. Holliday as the person]. He is the person I mention as Mr. Holliday; he had on an overcoat; the gun was on his left hand side with his overcoat over the gun and is arm thrown over it; I knew it was a gun, because his overcoat flew back and I saw it; there were three persons with him; I suppose they were; all four were right together, walking in the same direction, down Fremont street from the post office towards Third street; I only know what I been told who these persons were; I do not know the Earp brothers only by sight, and as they have been pointed out to me; persons pointed out to me as the Earp brothers were with him; I could not positivly point out in this room ant of the Earp brothers; I can say that there is one who looks like them;
were on the sidewalk walking leisurly along, as any gentleman would walk, not fast or very slow; when they got to the awning where the butvher shop is, Mr. Holliday and the man on the outside, were just a little in front of the middle two; they were walking nearly abreast of each other; Holliday was on the left side near the building; I heard remarks from the party as they passed; I heard the gentleman on the outside, as I stepped into the second folding door, as he looked around to Mr. Holliday. "Let them have it;" Mr. Holliday said, " All right;" I suppose he said it to Mr. Holliday, for he answered him; no names were used; I heard no other conversation, at this exact time; I saw nothing of the fight; I ran when I heard this gentleman say what he did to Mr. Holliday; I went back in the shop; I had not got as far as the blocks in the shop, before I heard the first fire; the block stands near the middle of the shop; it is not as far from where I am to the front door; (Witness here points out a distance of about 20 feet.) I went fast; I do not know the Sheriff by sight; did not see anyone talking to the Earps who did not belong to that party; the party who said "Let them have it," has been pointed out as one of the Earp brothers.
Q. Where are the folding doors in which you speak?
A. They are in front of the shop and open on the inside; they were open when I saw the parties; the I designated as the second folding door was the one nearest to third street.
Q. Were they both open at the time?
A. Yes, sir.
Q. How near to you was the party at the time you heard the gentlman say, "Let them have it?"
A. I could not tell exactly; I was on the door step and they were on the sidewalk; the nearest one was two or three feet from me.
Q. From what point in the butcher shop did you step into the second folding door?
A. I was in the first folding door as they come along, and when I heard the remark I stepped into the second folding door; while in the first folding door I was facing up the street towards the postoffice.
Q. Do you know who was meant by the word "them," when the party said "Let them have it"?
A. I suppose I did; just before this I heard a gentleman, as he was holding his horse, just previous to that, say to another man, "if you wish to find us, you will find us just below here."
The Examination- Reported November 6, 1881