November 13-14, 1881
On this thirteenth day of November, 1881, on the hearing of the above entitled cause of the examination of Wyatt Earp and J. H. Holliday; John H. Behan, a witness of lawful age, being produced and sworn, deposes and says as follows:
My name is John H. Behan. I reside in Tombstone. I am Sheriff of Cochise County. I know the defendants, Wyatt Earp and John H. Holliday. I know the defendants, Virgil Earp and Morgan Earp. In their lifetime I knew Thomas McLaury, Frank McLaury, and William Clanton. I know Isaac Clanton. I was here in Tombstone on the 26th of October, when a difficulty took place and a shooting occurred between the parties mentioned.
(Q) Will you state what you know about this difficulty?
(A) The first that I knew that there was likely to be any trouble; I was sitting in the barber's chair, getting shaved-Barron's Barber Shop. It was about half-past one, I think. It might have been later. I saw a crowd gathering on the comer of Allen and Fourth Streets. Someone in the barber shop said there was liable to be trouble between the Earps and Clantons. There was considerable said about it by parties sitting around. I asked the barber to hurry up, that I was anxious to go out and disarm and arrest the parties. I then went over to Hafford's Comer. I saw Marshal Earp standing there and asked him what was the excitement. This was Virgil Earp, the marshal. He said there were, "a lot of sons-of-bitches in town looking for a fight." I don't think he mentioned any names.
I said to him, "You had better disarm the crowd." He said he would not, that he would give them a chance to make a fight. I said to him, "It is your duty as a peace officer instead of encouraging a fight to disarm the parties." I don't remember that I said exactly, "cowboys," but I meant, "the boys," I meant the parties to the fight; I meant any parties connected with the cowboys who had arms.
Marshal Earp and Doc Holliday were standing out at the middle of the intersection of the streets-Allen and Fourth Streets. I only saw Virgil Earp and Doc Holliday in the middle of the streets, between Smith's Corner and Hafford's.
Virgil Earp had a shotgun, with the muzzle touching the doorsill, down by the side. I did not see any arms on the others at the time. I left Hafford's Comer and walked down on the east side of Fourth Street and crossed over to the southwest comer of Fremont and Fourth where I met Frank McLaury holding a horse and talking to someone? I greeted him and said to him. . . [Defense makes objection to any conversation of Frank McLaury being related. Overruled] I told McLaury I would have to disarm him; that there was likely to be some trouble and I proposed to disarm everybody having arms. He said that he would not give up his guns; that he did not intend to have any trouble. I told him he would have to give [up] his gun all the same, or his pistol. [The following two lines were illegible in the hand-written original.] About that time I saw Ike Clanton and Tom McLaury down below Fly's building. I said to Frank McLaury, "Come along with me." We went to where Ike Clanton and Tom McLaury were standing. I said to them, "Boys, you must give up your arms." [Defense objects. Overruled.]
When I arrived there, I found Ike Clanton, Tom McLaury, William Clanton, and William Claiborne there. Frank McLaury went along with me. I said to the boys, "You have got to give up your arms." Frank McLaury demurred. He did not seem inclined at first to be disarmed. Ike Clanton told me that he had nothing, that he was not armed. I put my arm around his waist to see if he was. I found that he was not. Tom McLaury showed me by pulling his coat open that he was not armed. I saw five standing there. I asked them how many there were of their party. They said, "Four." Claiborne said he was not one of the party that he was there wanting them to leave town. I then said, "Boys, you must go up to the Sheriff's Office and layoff your arms, 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 between the Post Office and Bauer's Butcher Shop. I mean Morgan Earp, Wyatt Earp, Virgil Earp, and Doc Holliday. I said to the Clanton party, "Wait here. I see them coming down. I will go up and stop them." I walked up the street about 22 or 23 steps. I met them at Bauer's Butcher Shop, and told them not to go any further, that I was down there for the purpose of disarming the Clantons and McLaurys. They wouldn't heed me, paid no attention. And I said, "Gentleman, I am Sheriff of this County, and I am not going to allow any trouble if I can help it." They brushed past me. I turned and went with them. I was probably a step or two in the rear as we went down the street. I was expostulating with them all this time.
When they arrived within a very few feet of the Clan tons and McLaurys I heard one of them say-I think it was Wyatt Earp-"You sons of-bitches, you have been looking for a fight, and now you can have it!" Also, about this time I heard a voice say, "Throw up your hands!"
During this time, pistols were pointed. I saw a nickel-plated pistol in particular [which] was pointed at one of the party. I think at Billy Clanton. My impression at the time was that Holliday had the nickel plated pistol. I will not say for certain that Holliday had it. These pistols I speak of were in the hands of the Earp party.
When the order was [given] to "Throw up your hands!" I heard Billy Clanton say, "Don't shoot me. I don't want to fight!” Tom McLaury at the same time threw open his coat and said, "I have nothing," or "I'm not armed," or something like that. He made the same remark and the same gesture he made to me when he showed me he was not armed, by catching hold of his coat on both sides and throwing it out that way [illustrating]. When Billy Clanton made the remark about not wanting to fight, I did not see the position of his hands. My attention was directed to the nickel-plated pistol for a couple of seconds. The nickel-plated pistol was the first to fire, and instantaneously a second shot3-two shots right together simultaneously-these two shots couldn't have been from the same pistol-they were too near together. The nickel-plated pistol was fired by the second man from the right; the third man from the right fired the second shot, if it can be called a second shot. Then the fight became general. After the first two shots, there were two or three shots fired very rapidly-I couldn't tell by whom. The first two shots were fired by the Earp party. I can't swear by whom the shots immediately after the first two shots were fired. My impression at the time was that the next three shots came from the same side as the first two shots-that is, the Earp party. [Defense counsel objects to witness stating his impressions. [Overruled] This was my impression at the time, from being on the ground and seeing it.
After the remark, "Throw up your hands!" was made; the nickel plated pistol went off. I think it was V. [Virgil] W. Earp who said, "Throw up your hands!" There was a good deal of fighting and shooting going on. The next [a few words here are illegible] that I saw, Frank McLaury [was] staggering on the street, with one hand to [his] belly and his pistol in his right. I saw him shoot at Morgan Earp, and from the direction of the pistol, I should say he hit the ground. Frank McLaury shot twice towards Fly's building, and [as] he started across the street, he was shooting at Morgan Earp at the time. I heard a couple of shots from that direction. I didn't see him after he got about halfway across the street. My attention was directed in another direction. I looked then in that direction and saw Frank McLaury running and a shot was fired and he fell on his head, and I heard Morgan Earp say, "I got him!”
That's about the end of the fight. There might have been a couple of shots afterwards, but I don't remember. I can't say that I saw the effect of the first two shots. The only parties I saw fall in the fight were Morgan Earp and Frank McLaury. I saw Morgan Earp fall and recover himself. I did not see any movement of any person that indicated any effect from the first two shots. I didn't notice any indication [illegible].
The first man I was satisfied was hit was Frank McLaury. I saw him staggering and bewildered and I knew he was hit. This was shortly after the first five shots. I never saw any arms in the hands of anyone of the McLaury party, excepting Frank McLaury and Billy Clanton. I saw Frank McLaury on the sidewalk, within a very few feet of the lil1e of the fronts of the lots opposite the vacant lot between Fly's building and the boarding house below it.
I suppose there was as many as eight or ten shots before I saw arms in the hands of any of the McLaury or Clanton party. Frank McLaury is the first man of that party in whose hands I saw a pistol. Ike Clanton broke and run after the first five shots were fired. I saw him at the back corner of Fly's house, the last I saw of him there. I should judge he ran into an addition on the back of Fly's building.
[COURT ADJOURNED UNTIL TOMORROW MORNING AT 9 O'CLOCK]
[EXAMINATION OF JOHN H. BEHAN RESUMED]
I couldn't tell where he [Ike Clanton] was going to. I found him on Toughnut Street, at Judge Lucas' old office. I saw him at the comer of the Photograph Gallery. I never saw him after he passed the comer of the gallery. He seemed to be trying to get away. I should judge he went through the house. I saw a shotgun before the fight commenced. Doc Holliday had it. He had it under his coat. I do not know of my knowledge that it was fired, as I did not see it go off. I could not distinguish it from the other shots. I did not notice it afterward. I do not know what became of it. I saw the bodies of the deceased after they were dead. Clanton was not quite dead. I saw Clanton lying on the sidewalk. I heard him say, "Go away and let me die." He said it after being taken in the house. I saw him lying on the sidewalk, and I saw him when he shot at Morgan Earp, while lying down. Quite a number was in the room. I do not know who they were. I saw Dr. Giberson in the room. He said nothing would do him, Clanton, any good he was dying. I was not in the house when he died. I left before he died. Tom McLaury was in the same room. Clanton's feet were toward the door. I do not remember McLaury's position.
CROSS-EXAMINATION
(Q) Did you receive the first information of the anticipated difficulty between the Earp party and the Clanton party at the barber shop, of which you have spoken?
(A) My recollection is that I heard of it first in the barber shop.
(Q) Had you previous to that time heard of a difficulty between Wyatt Earp and Tom McLaury in the neighborhood of Wallace's office?
(A) I had not.
(Q) You being in town and assumedly mingling with the people, if those difficulties were a matter of common comment, how did it happen that a report of it did not reach you? [Objected to by Prosecution. Sustained.]
(Q) Were you not in Hafford's Saloon some 15 or 20 minutes before the fight?
(A) I was in Hafford's Saloon some 10 or 15 minutes before the fight.
(Q) Did you not cross the street in company with one Shibell?
(A) I did, with Charles A. Shibell.
(Q) Did you see Virgil Earp?
(A) I do not remember whether I did or not.
(Q) Did you not say to Virgil Earp at the time, "We are going to take a drink. Won't you join us?"
(A) I do not remember whether he took a drink or not.
(Q) Do you not remember that while the parties were drinking, that Captain Murray came in and called Virgil Earp to the lower end of the counter?
(A) I do not remember.
(Q) Do you remember that when Virgil Earp came back from Murray's to where you were standing, you said to him: "What does that son-of-a-bitch stranger want?"
(A) I do not remember, and I do not think such words passed my lips as Captain Murray and I are on the best of terms.
(Q) Do you remember that you then asked Virgil Earp what he was going to do?
(A) No, I do not.
(Q) Do you recollect Virgil Earp replying: "I am going to disarm them."?
(A) No.
(Q) Do you recollect replying to that remark: "Don't undertake to do that," or: "They will kill you"-referring to the Clanton crowd. "They were just down in my corral having a gun talk against you and threatening your life?"
(A) No such conversation happened. I made no such reply. I had not been down in my corral.
(Q) Do you recollect further saying: "I will go down where they are; they won't hurt me, and I will get them to layoff their arms"-this was said to Virgil Earp?
(A) This conversation did not take place at that time.
(Q) Did you, subsequent to the fight, somewhere in the city of Tombstone, and upon the day of the fight and speaking of the fight between the Earp crowd and the Clanton crowd, say to Charles Shibell that it was a dead square fight and that you could not tell who shot first?
(A) No sir.
(Q) Did you not make that remark, or [one] of similar import to Wyatt Earp after the fight, on the comer of Fremont and Fomth Streets, and upon the day of the fight?
(A) No sir.
(Q) If anything, how much have you contributed or have promised to contribute to the associated attorneys who are now prosecuting this case?
(A) I have not contributed a cent, nor have I promised to.
(Q) Were not you and Wyatt Earp applicants to General Fremont for the appointment of Sheriff of Cochise County, and did not Wyatt Earp withdraw his application upon your promise to divide the profits of the office and did not you subsequently refuse to comply with your part of the contract? [Objected to by the Prosecution. Overruled.]
(A) In the first place we were both applicants for the office. I was, and I understood Mr. Earp was. When I became satisfied that I would get the appointment, I went to Mr. Earp and told him that I knew I would get the appointment of Sheriff, and that I would like to have him in the office with me. I also told him that I did not want him to cease his efforts to get the office if he could. I told him I was sure I could get it and that if I did, I would take him in, that in case he got the office, I did not want anything to do with it. He said it was very kind of me, that if he got the office he had his brothers to provide for, and could not return the compliment if he got it. I said I asked nothing if he got it, but in case I got it, and I was certain of it, I would like to have him in the office with me. I said, "Let this talk make no difference with you in your efforts to get the office." Something afterwards transpired that I did not take him into the office.
(Q) Up to the time of this difficulty under consideration, have you not regarded Wyatt Earp as an aspirant for the office of Sheriff of Cochise County?
(A) I have not.
(Q) [Question not written.]
(A) I did not see anyone take a pistol from William Clanton.
(Q) After the fight was over, how soon did you leave the battleground and where did you go?
(A) I cannot say how long; probably four or five minutes. I came up Fremont Street, thence to Hafford's Corner.
(Q) Did you meet Wyatt Earp at the corner of Fremont and Fourth Streets?
(A) I did.
(Q) Did you have any conversation with him?
(A) We had some conversation.
(Q) After the fight, were you upon the stoop in the passageway between the lodging house and the photograph gallery, and how long?
(A) I was on the stoop a very [few] seconds after the fight.
(Q) Did you not at the time suppose that you were [the] only, or about the only witness, outside of the parties concerned in the difficulty, who witnessed the difficulty? [Objected to on the ground that it is irrelevant and immaterial. Objection sustained. ]
(Q) Did you not, at the time and place, say to one of the Fly's: "I'm about the only witness to that fight, am I not?"
(A) I don't remember. I told him I saw it all. He was trying to get Claiborne out of the house. I told him to let him stay, as he was not to blame and might get killed.
(Q) After you followed or accompanied the Earps from under the awning of the butcher shop, and the fight commenced, did you occupy one position until the shooting ceased?
(A) No sir, I did not stand still. I moved around pretty lively.
(Q) When you heard the expression: "You sons-of-bitches, etc., hold up your hands, etc." locate on this diagram [diagram shown] the exact position of the Clanton crowd.
(A) [Here witness makes use of diagram marked "Exhibit A," and the witness indicates the position of the parties as follows: 1.Frank McLaury; 2. Billy Clanton; 3. Thomas McLaury; 4. Ike Clanton.] Claiborne was standing back of them, farther into the lot. I cannot state exactly where. The four numbered were not standing in as straight a row as the figures on the diagram. [Here witness corrects the positions.]
(Q) How long was it after the expressions of, "You sons-of-bitches, etc.," and "throw up your hands!" was it that the firing commenced?
(A) I don't think it was more than a second interval.
(Q) What interval of time between the expression, "You sons-of-bitches," and "Throw up your hands!"?
(A) One expression followed the other-it was almost simultaneous.
(Q) At the time of those two expressions, I understand you to say you had your eye on a nickel-plated pistol. Did you see the nickel-plated pistol before you heard the expressions?
(A) I saw the nickel-plated pistol at the same time the expressions were made.
(Q) Did you see it in any interval before the expressions were made?
(A) I saw it at the same time.
(Q) Was it pointed, the first time you saw it?
(A) Yes, it was pointed at Billy Clanton.
(Q) Was it the commencement of the expressions, "You sons-of-bitches, etc.," that diverted your attention from the Clanton crowd and concentrated it upon the Earp crowd?
(A) My attention was on the Earp crowd.
(Q) How long had your attention been especially on the Earp crowd?
(A) From the time I turned to go with them.
(Q) Did you see a shotgun in the hands of the Earp party, and if so, which one of them?
(A) The last time I saw the shotgun [it] was in the hands of Doc Holliday-he had it under his coat.
(Q) Did you see the shotgun employed in that difficulty?
(A) I did not.
(Q) Holliday having a shotgun just preceding the difficulty, and on the way to the difficulty, and your attention being especially directed to the Earp party, how does it happen that you do not know what became of the shotgun?
(A) I do not know-it might have been used and I not know of it.
(Q) Locate Holliday at the time, as you say, you think he discharged the nickel-plated pistol.
(A) [Witness marks on the diagram marked "Exhibit A", by the figure 5, the position occupied by Holliday at the time he thinks Holliday fired the shot.
(Q) And at what distance from the nearest of the Clanton Party?
(A) About five and a half or six feet, I should judge.
(Q) Do you still insist that the first shot was fired from the nickel plated pistol?
(A) Yes.
(Q) Is it not a fact that at the time of the firing of the first shot, Holliday was in the street, at least 25 feet from where you have located the Clanton crowd?
(A) No, it is was not.
(Q) Is it not a fact that the first shot fired by Holliday was from a shotgun; that he then threw the shotgun down and drew the nickel-plated pistol from his person and then discharged the nickel-plated pistol: Presuming Holliday to be number 5 on the diagram, is it not a fact that he fired the shotgun first
(A) [Question not answered.]
[COURT HERE RECESSES UNTIL 1 O'CLOCK] [HEARING RESUMED]
(Q) Had not the Clanton party, meaning the parties named as engaged in the conflict, a reputation for courage and determination?
[Objection by the Prosecution. Overruled.]
(A) They have that reputation. That is Frank McLaury and Ike Clanton-I never heard the reputation of the other two discussed.
(Q) Have not the Earp party the same reputation as to courage and determination?
(A) They have.
(Q) With your knowledge of the character of the two parties, were you not satisfied after the first hostile demonstration that the contact would proceed to a bitter end, and beyond the power of ordinary or extraordinary interference?
[Question objected to. Question overruled on the ground that it is mere opinion of the witness, upon the acts, that he has already related, and as being such opinion, is immaterial and irrelevant.]
(Q) With Allen fleeing into an alleyway, Claiborne, or the Kid, hiding in the photograph gallery, [and] Ike Clanton running away, why did you hover around there, exposing your person and life?
[Question overruled in its present form.]
(Q) What was the exterior dress of Doc Holliday at the time you saw him with a shotgun?
(A) He had on a heavy overcoat of gray color which came below his knees.
(Q) Did he change the overcoat from the time you first saw him until you think he discharged the nickel-plated pistol?
(A) I don't think he changed it. He did not have time.
(Q) Did any other of the Earp party have a similar garment on?
(A) I think not.
(Q) What space of time was occupied between the first and last shot?
(A) I don't think the fight lasted over 20 or 30 seconds.
(Q) Were you satisfied when you put your arm around the waist of Ike Clanton, Tom McLaury threw the lapels of his coat aside, and Billy Clanton said he did not want to fight, that these parties had no arms?
(A) When I left the Clanton party to meet the Earps, I was satisfied that Ike Clanton and Tom McLaury had no arms on them.
(Q) Could they not have had arms and you not know it?
(A) Ike Clanton could not without my knowing it. Tom McLaury might have had a pistol and I not know it.
(Q) As you examined him simply around the waist, could he not have had a pistol in his pocket?
(A) He could not have had a pistol in his pocket, as I examined him very closely with my eye.
(Q) Did you see a horse in that neighborhood?
(A) Yes sir.
(Q) Where exactly-noted on the diagram.
(A) I cannot designate precisely on the diagram where the horse was.
(Q) At what time connected with the hostilities did you see Frank McLaury hold that horse?
(A) He had hold of the horse when the Earp party first went down there.
(Q) What became of the horse when Frank McLaury occupied the position designated on the diagram as Figure I7?
(A) As long as I saw him occupy that position, he was holding the horse.
(Q) Then was the horse inside or outside the vacant lot?
(A) Inside the vacant lot.
(Q) How long before the difficulty did you see the horse in that position?
(A) They were occupying that position when I left to meet the Earp party and walked 21 or 22 steps and back, and the party all seemed to be in the same position.
(Q) Where was the horse immediately previous to and during the shooting?
(A) At the beginning of the shooting he was occupying that position.
(Q) Did the horse intervene between the Clanton party and Doc Holliday?
(A) I think not. It is possible that Frank McLaury may have stepped back behind the horse.
(Q) Did you see Tom McLaury discharge one or more pistol shots toward the Earp party-or, in other words, did you see Tom McLaury shoot over the horse's back?
(A) No sir.
(Q) Did you see or hear any evidence of a shot proceeding from the alleyway between Fly's house and the building east of it?
(A) No.
(Q) Did you not know that Tom McLaury shot Morgan over the horse's back?
(A) No.
(Q) Have you ever heard any threats within the last few months on the part of the Clan tons and McLaurys against the defendants in this prosecution?
(A) I never heard any threats at any time.
(Q) Once or twice in your direct examination, you spoke of cowboys. What is a cowboy?
(A) My idea of a cowboy is men who deal in cattle Stockmen.
(Q) Do you regard the Clantons and McLaurys as cowboys?
[Question overruled on the ground that it is eliciting the opinion of the witness and is immaterial and irrelevant.]
(Q) Do you know the reputation of the Clantons and McLaurys in the section of the county in which they live and roam for turbulence? [Objected to on the ground that it is not cross-examination and is immaterial. Answer delayed. Objection sustained on the ground that it is not cross-examination and is immaterial.]
(Q) Have not the disturbances and main difficulties, breaches of the peace, and killings in this city and county been, in your opinion and knowledge, or either, connected with Clan tons or their confederates? [Prosecution objects on the same grounds as above. Overruled.]
(A) I never knew the McLaurys to be in any trouble or rows. Ike Clanton I have seen in one row here, and Billy Clanton I know nothing about.
(Q) Do you know William Allen?
(A) Yes sir.
(Q) Did you see him that day at or near the difficulty or shooting, at or near the time of said shooting?
(A) I don't remember seeing him there.
(Q) Were you, during the time of the shooting, in the alleyway between Fly's Gallery and the building on the east?
(A) I was not in any alleyway during the progress of the fight. (Q) When you left the Clanton party, as you stated, and ascended Fremont Street to meet the Earps, did you not say, addressing Wyatt Earp and Morgan Earp: "I have got them disarmed." Or words to that effect?
(A) No sir.
(Q) Did not the Earp party, after some remark made by you to them, put their pistols farther back in their pants and did not Holliday pull his coat over his gun?
(A) No sir. Holliday pulled his coat over his gun before I spoke to him.
(Q) Have you, since the difficulty, had any interview with William Allen, to compare your recollections with him in regard to the difficulty?
(A) I had no interview with Allen about the matter; have met him and talked about it on the street. [Verbatim as in original.]
(Q) During the progress of the fight, did you see Ike Clanton take hold of Wyatt Earp's left arm and hear Wyatt Earp say to him, "This fight has commenced either fight or get away!"?
(A) No sir.
(Q) Indicate on the diagram the position of the Earp party at the time of the firing of the first shot.
(A) I can locate the party but cannot give the position of each particular one [here witness marks on diagram "A"]. [The figures] 6, 7, and 8 represent three of the Earp party, and number 5 represents the one with the nickel-plated pistol. The Earp party was facing the Clanton party.
(Q) To the best of your belief, how far apart were the two parties?
(A) About five and a half or six feet; very close together.
(Q) Which represents [number] 8, to the best of your knowledge?
(A) I can't tell exactly; my impression is that number 8 represents Virgil Earp.
(Q) What party is number 7, to the best of your knowledge?
(A) I don't know.
(Q) Mark the position of the horse as number 9.
(A) Number 1, Frank McLaury was holding the horse. I cannot designate on the diagram the position of the horse, for I have forgotton; there may have been two horses there for all I know.
(Q) If one or two horses, were they inside of the vacant lot?
(A) They were inside of the vacant lot.
RE-DIRECT EXAMINATION
(Q) When you first saw the Clanton and McLaurys on the day of the difficulty were they, or either of them, making any noise or disturbance?
(A) No sir. They were not.
(Q) When you saw the Earp party going down Fremont Street towards the Clanton party, what noise or disturbance were they making, if any?
(A) They were making no noise or disturbance.
(Q) Did you personally know Billy Clanton, and if so, how long, and about how old was he, if you knew him?
(A) I knew him, have known him about three or four months. He was a boy; I should not take him to be of age.
(Q) During the time you knew him; did you know or hear of his being in any difficulty?
(A) I never knew or heard of his being in any rows. I knew very little about him.
(Q) In your cross-examination you state that Isaac Clanton had been in some difficulties. Please state the number, with whom, and where, and when.
(A) The only difficulty that I know of his being in, was with Danny McCann, in Tombstone, about a month or two ago.
(Q) In your cross-examination you were asked if you know of Isaac Clanton being in any difficulties, please state if you heard of his being in any difficulties; if so, with whom, and where?
(A) I heard he had a difficulty with the Deputy Sheriff at Charleston some months ago, and then again I heard he had some trouble with Holliday the night before the shooting. I can't call to mind any other.
(Q) Did you hear of any difficulty on the morning of the 26th of October?
(A) I heard of a difficulty on the morning of the 26th, with Morgan and Virgil Earp.
[COURT ADJOURNED UNTIL FRIDAY, NOVEMBER 14, 1881, AT 9 O'CLOCK A.M.]
[FRIDAY, NOVEMBER 14, 1881, EXAMINATION RESUMED]
[On motion of L. [yttleton] Price, District Attorney, W. R. McLaury was admitted as associate counsel on the party of the prosecution.]
[All answers of witness Behan touching [the] character of the deceased were stricken out, on the ground that they were not proper matters of cross-examination.] [The following question [was] asked witness Behan by the defense, by consent.]
(Q) Did you visit Virgil Earp at his residence the evening after the fight?
(A) I did.
(Q) Did not some discussion ensue between you and Virgil Earp about the fight?
(A) There was some.
(Q) Did you not make use of this language: "I went to see the Clanton crowd and told them to disarm? They would not do it. I went back and met you 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 McLaury boys said, 'We will,' and drew his gun, and the shooting commenced. I am your friend, and you did perfectly right. "Or language of such substance or like import.
(A) I went down that evening and when I got in the house, Virgil Earp said, "You better go slow, Behan, and not push this matter too far." I told him I did not come there to have any words-which I intended to do my duty as an officer. Then he said he heard I tried to get the vigilance committee to hang them. I told him I did nothing of the kind that I never called for them. He said about the same thing that Wyatt Earp did, about me deceiving them or throwing them off. Then is when I explained to him about stopping him and telling them to stop. In the conversation he told me he was my friend. I told him 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!" I never told him I heard McLaury say anything or that I saw him draw a pistol.
RE-EXAMINATION
(Q) On your cross-examination you stated that you promised Wyatt Earp a position in your office, and that something subsequently occurred that caused you not to do it. Please state what that something was.
(A) It was this: Shortly after I had the conversation with Wyatt Earp, I received a telegram from Charles A. Shibell, Sheriff of Pima County to subpoena Ike Clanton. I was Deputy Sheriff [in Tombstone, before Cochise County was formed] under Shibell. I didn't know where Clanton lived at the time. I went to Virgil Earp and asked him. He told me where [Ike] lived. I hitched up a team and started to Charleston. I had gotten about halfway to Charleston, and a man dashed by me on horseback, on the run; and about five minutes afterwards another passed me on the run. I got to Charleston and found a man going out to Clanton's place. I gave him the dispatch and told him to hand it to Ike Clanton, and stayed around Charleston an hour or so and met Wyatt Earp and Doc Holliday. I think I asked them what they were doing or what they were on. Wyatt Earp told me he was down after a horse that had been stolen from him sometime before.
Nothing more was said and I returned to Tombstone. I went over to Tucson a few days afterwards and was told by Clanton that I came near getting myself in a hell of a scrape-[Defense counsel objects to the witness testifying to verbal statements of Clanton not connected [with] or a part of the circumstances of the homicide. Objection overruled and objected to.] He, Ike, said Earp sent him word that I had taken a posse of nine men down there to arrest him and send him to Tucson, and then he told me he had armed his crowd and was not going to stand it, and they got out [a word here is illegible] guns and was not going to Tucson.
(Q) Who was the first and the second man that passed you on the [Charleston] road of whom you spoke?
(A) It was dark, and my impression was that it was Virgil Earp, I did not know, but thought it his form, and the next [man] I thought was Holliday. When I got to Charleston, I saw Wyatt Earp instead of Virgil, and concluded I had made a mistake.
(Q) Who was with you, if any person?
(A) Les Blackburn and a man named Laurence Geary.
(Q) Who did you send the dispatch by, from Charleston to Ike Clanton?
(A) I think by a man named Oates.
(Q) Can you tell anywhere near about the time of month it was, or what case the subpoena was in?
(A) No, I cannot tell the time; [it was] in [the] case of Paul vs. Shibell.
(Q) Was there any conversation between you and Wyatt Earp immediately after the difficulty as to your deceiving him about the McLaurys and Clantons being armed, and if so, what was the conversation?
(A) There was a conversation on Fremont Street near the Butcher Shop on the sidewalk. Wyatt Earp said, "Behan, you deceived me," or, "threw me off. You said you had disarmed them." I told him he was mistaken, I did not say anything of the kind. Then I related to him what I had said. I said, "Earp, I told you I was there for the purpose of arresting and disarming them." He said he thought I had said I had disarmed them.
(Q) What was the distance you were from the Clanton and McLaury 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 party?
(A) I was within 9 or 10 feet of the Earp party when I commanded them to stop, and about 19 or 20 yards from the Clantons and McLaurys.
(Q) Where did this difficulty occur?
(A) In Tombstone, Cochise County, Arizona Territory.
(Q) [No written question appears.]
(A) The [man] named, spoken of as Captain Murray is known as Billy Murray and is a partner of F. A. Tritle.
(Q) At the time you demanded [his arms] of Frank McLaury, at the comer of Fremont and Fourth Streets, and he demurred to giving them up, was the demurrer a conditional one or an absolute refusal?
(A) He did not want to give up his arms unless the other party was disarmed.
[The defendants reserved the right to further cross-examine the witness after they opened their case for the defense.]
[Signed] John H. Behan