in the Preliminary Hearing in the Earp-Holliday Case,
Heard before Judge Wells Spicer
November 19-22, 1881
On this nineteenth day of November, 1881, on the hearing of the above entitled cause on the examination of Wyatt Earp and J. H. Holliday; Virgil W. Earp, a witness of lawful age, being produced and sworn, deposes and says as follows:
My name is Virgil W. Earp; I reside in Tombstone, Cochise County, Arizona Territory. My occupation: Chief of Police of Tombstone and Deputy U. S. Marshal.
(Q) State what official position, if any, you occupied on the 25th and 26th of October last.
(A) Chief of Police of Tombstone and Deputy United States Marshal, and was acting as such on those days.
(Q) State what official or other position, if any, with respect to the police department of Tombstone, was occupied on the 25th and 26th of October last by Morgan Earp.
(A) He was sworn in as Special Policeman and wore a badge with "Special Police" engraved on it, and he had been sworn and acted as a "Special" for about a month.
(Q) State what official or other position, if any, with respect to the police department of Tombstone, was occupied on the 25th and 26th of October last by Wyatt Earp.
(A) Wyatt Earp had been sworn in to act in my place while I was in Tucson, and on my return his saloon [Oriental) was opened and I appointed him a "Special," to keep the peace, with power to make arrest, and also called on him on the 26th, to assist me in disarming those parties: Ike Clanton and Billy Clanton, Frank McLaury, and Tom McLaury.
(Q) State what position or deputization, if any, with respect to assisting you as Chief of Police, was occupied on the 26th of October last, or anytime during that day by John H. Holliday.
(A) I called on him that day for assistance to help disarm the Clantons and McLaurys.
(Q) State fully all the circumstances of and attendant upon the difficulty which resulted in the death of Frank McLaury, Thomas McLaury, and Billy Clanton, commencing on the day of the difficulty and confining your answers for the present entirely to what occurred within your sight and hearing on the day of the difficulty, on the 26th of October.
(A) On the morning of the 26th, somewhere about six or seven o'clock, I started to go home, and Ike Clanton stopped me and wanted to know if I would carry a message from him to Doc Holliday.
I asked him what it was. He said, "The damned son of a bitch has got to fight."
I said, "Ike, I am an officer and I don't want to hear you talking that way at all. I am going down home now, to go to bed; I don't want you to raise any disturbance while I am in bed."
I started to go home, and when I got ten feet from him he said, "You won't carry the message?"
I said, "No, of course I won't." I made four or five steps more.
He said, "You may have to fight before you know it." [Here, counsel for the prosecution reserves the right to strike out at the close, any portion of the answer].
I made no reply to him and went home and went to bed. I don't know how long had been in bed. It must have been between 9 and 10 o'clock when one of the policemen came and told me to get up, as there was liable to be hell. I did not get up right away, but in about half art hour I got up. I cannot tell exactly what time it was.
Along about 11 or 12 o'clock I came up on the street and met a man by the name of Lynch. I found Ike Clanton on Fourth Street between Fremont and Allen with a Winchester rifle in his hand and a six-shooter stuck down in his breeches. I walked up and grabbed the rifle in my left hand. He let loose and started to draw his six-shooter. I hit him over the head with mine and knocked him to his knees and took his six-shooter from him.
I ask him if he was hunting for me. He said he was, and if he had seen me a second sooner he would have killed me. I arrested Ike for carrying firearms, I believe was the charge, inside the city limits. When I took him to the courtroom, Judge Wallace was not there. I left him in charge of Special Officer Morgan Earp while I went out to look for the Judge. After the examination I asked him where he wanted his arms left, and he said, "Anywhere I can get them, for you hit me over the head with your six-shooter."
I told him I would leave them at the Grand Hotel bar, and done so. I did not hear, at that time, any quarrel between Wyatt Earp and Ike Clanton. The next I saw them, they were, all four; Ike Clanton, Billy Clanton, Frank McLaury, and Tom McLaury in the gun shop on Fourth Street. I saw Wyatt Earp shooing a horse off the sidewalk and went down and saw them all in the gun shop, filling up their belts with cartridges and looking at the pistols and guns. There was a committee waiting on me then and called me away to one side. I turned to Wyatt Earp and told him to keep peace and order until I came back and to move the crowd off the sidewalk and not let them obstruct it. When I saw them again, all four of them were going in Dunbar's Corral. They did not remain long there. They came out and went into the O.K. Corral.
I called on Johnny Behan who refused to go with me, to go help disarm these parties. He said if he went along with me, there would be a fight sure; that they would not give up their arms to me.
He said, "They won't hurt me," and, "I will go down alone and see if I can disarm them."
I told him that was all I wanted them to do; to layoff their arms while they were in town. Shortly after he left, I was notified that they were on Fremont Street, and I called on Wyatt and Morgan Earp, and Doc Holliday to go and help me disarm the Clantons and McLaurys. We started down Fourth Street to Fremont, turned down Fremont west, towards Fly's lodging house. When we got about somewhere by Bauer's butcher shop, I saw the parties before we got there, in a vacant lot between the photograph gallery and the house west of it.
The parties were Ike and Billy Clanton, Tom and Frank McLaury, Johnny Behan, and the Kid. Johnny Behan seen myself and party coming down towards them. He left the Clanton and McLaury party and came on a fast walk towards us, and once in a while he would look behind at the party he left, as though expecting danger of some kind. He met us somewhere close to the butcher shop.
He threw up both hands, like this [illustrating] and said, "For God's sake, don't go there or they will murder you!"
I said, "Johnny, I am going down to disarm them."
By this time I had passed him a step and heard him say, "I have disarmed them all."
When he said that, I had a walking stick in my left hand, and my right hand was on my six-shooter in my waist pants [verbatim], and when he said he had disarmed them, I shoved it clean around to my left hip and changed my walking stick to my right hand. As soon as Behan left them, they moved in between the two buildings, out of sight of me. We could not see them. All we could [see] was about half a horse.
They were all standing in a row. Billy Clanton and Frank McLaury had their hands on their six-shooters. I don't hardly know how Ike Clanton was standing, but I think he had his hands in an attitude where I supposed he had a gun. Tom McLaury had his hand on a Winchester rifle on a horse.
As soon as I saw them, I said, "Boys, throw up your hands, I want your guns," or "arms."
With that, Frank McLaury and Billy Clanton drew their six-shooters and commenced to cock them, and I heard them go "click-click."
Ike Clanton threw his hand in his breast, this way [illustrates]. At that, I said, throwing both hands up, with the cane in my right hand, "Hold on, I don't want that!"
As I said that, Billy Clanton threw his six-shooter down, full cocked. I was standing to the left of my party, and he was standing on the right of Frank and Tom McLaury. He was not aiming at me, but his pistol was kind of past me. Two shots went off right together. Billy Clanton's was one of them. At that time I changed my cane to my left hand, and went to shooting; it was general then, and everybody went to fighting.
At the crack of the first two pistols, the horse jumped to one side, and Tom McLaury failed to get the Winchester. He threw his hand back this way [shows the motion]. He followed the movement of the horse around, making him a kind of breastwork, and fired once, if not twice, over the horse's back.
[TUESDAY, NOVEMBER 22, 1881, EXAMINATION RESUMED]
(Q) When you met Lynch on the morning, or noon, of October 26th, what did he tell you?
(A) He told me to look out for Ike Clanton that he was hunting me, and allowed to kill me on sight.
(Q) State what threats, if any, were made by Isaac Clanton, William Clanton, Thomas McLaury, or Frank McLaury, to you, or in your presence, and what threats if any, by either of the aforementioned persons were communicated to you as having been made in the presence of others, giving the name of the persons making the communications to you, in detail.
(A) The first man who spoke to me about any threats was Officer Bronk. I was down home in bed when he called. He came down after [a] commitment I had for a party that was in jail. It was about 9 o'clock I should think, on the 26th of October. While he was getting the commitment, he said, "You had better get up. There is liable to be hell!"
He said, "Ike Clanton has threatened to kill Holliday as soon as he gets up." And he said, "He's counting you fellows in too," meaning me and my brothers. I told him I would get up after a while, and he went off.
The next man was Lynch; I've stated what he said. The next I met, was Morgan and James Earp. One of them asked me if I had seen Ike Clanton. I told them I had not. One of them said, "He has got a Winchester rifle and six-shooter on, and threatens to kill us on sight."
I asked Morgan if he had any idea where we could find him. He said he did not. I told him then to come and go with me, and we could go and arrest him, and disarm him. Several men came on Allen Street between Fourth and Fifth; miners whose names I do not know. This was after Ike Clanton's arrest and before the fight.
There was one man in particular who came and said, "Ain't you liable to have trouble?"
I told him I didn't know, it looks kind of that way, but couldn't tell.
He said, "I seen two more of them just rode in," and he said, "Ike walked up to them and was telling them about you hitting him over the head with a six-shooter."
He said that one of them rode in on a horse [and] said, "Now is our time to make a fight." This was after the arms of Ike Clanton were returned to the Grand Hotel.
Just about the time the man was telling me this, Bob Hatch came and beckoned to me, as though he wanted to speak to me, and said, "For God's sake, hurry down there to the gun shop, for they are all down there, and Wyatt is all alone!"
He said, "They are liable to kill him before you get there!" The other man told me to be careful, and not turn my back on them or I would be killed, that they meant mischief. Lynch remarked [paragraph not completed.
There was a man named W. B. Murray and a man named J. L. Fonck came at separate times and said, "I know you are going to have trouble, and we have got plenty of men and arms to assist you."
Murray was the first man to approach me, on the afternoon of the 26th. I was talking to Behan at the time in Hafford's Saloon, trying to get him to go down and help me disarm them. Murray took me to one side and said, "I have been looking into this matter and know you are going to have trouble. I can get 25 armed men at a minutes notice."
He said, "If you want them, say so."
I told him, as long as they stayed in the corral, the O.K. Corral, I would not go down to disarm them; if they came out on the street, I would take their arms off and arrest them. He said, "You can count on me if there is any danger."
I walked from the comer of Fourth and Allen Streets, west, just across the street. J. L. Fonck met me there, and he said, "The cowboys are making threats against you."
And he said, "If you want any help, I can furnish ten men to assist."
I told him I would not bother them as long as they were in the corral; if they showed up on the street, I would disarm them. "Why," he said, "they are all down on Fremont Street there now."
Then I called on Wyatt and Morgan Earp, and Doc Holliday to go with me and help disarm them. Frank McLaury made a threat to me one day on the street. It must have been about a month before the shooting and it might have been a week after the notice in the paper of the formation of a vigilance committee. Frank McLaury stepped up to me in the street between the Express Office and the Grand Hotel. He said, "I understand you are raising a vigilance committee to hang us boys."
I said, "You boys?"
He said, "Yes, us and [the] Clantons, Hicks, Ringo, and all us cowboys."
I said to him, "Frank, do [you] remember the time Curly Bill killed White?"
He said, "Yes."
I said, "Who guarded him that night and run him to Tucson next morning to keep the vigilance committee from hanging him?"
He said, "You boys."
I said, "Now do you believe we belong to it?"
He said, "I can't help but believe the man who told me you do."
I said, "Who told you?"
He said, "Johnny Behan,” "Now," he says, "I'll tell you, it makes no difference what I do, I never will surrender my arms to you."
He said, "I'd rather die fighting than be strangled."
I made some remark to him, "Alright," or something-and then left him.
[Counsel for the Prosecution moves to strike out all the proceeding conversation with Frank McLaury on the ground that it is irrelevant and contains no threats against this defendent. Objection taken under advisement.]
(Q) State any conversation had by you, if any, with Isaac Clanton or Frank McLaury in this town with respect to obtaining information from them, or either of them, that should lead to the capture or killing of the parties suspected to have been engaged in the killing of Bud Philpot and the attempt to rob the Benson Stage.
[Objected to by Prosecution on the ground that the question is too broad and enquires into conversations with Frank McLaury which are more hearsay and irrelevant and for which no foundation had been laid. Objection sustained as to Frank McLaury, but overruled as to Ike Clanton and admitted to contradict his statement.]
(A) About last June, in Tombstone, Ike Clanton asked me where we could go to have a long talk, where nobody could hear us excepting those who were along at the time. We turned around the corner of Allen and Fifth Streets, alongside of Danner and Owen's Saloon.
He said, "I've had a long talk with Wyatt in regard to Leonard, Head, and Crane," and he said, "I believe I can trust you."
He said, "I am going to put up a job for you boys to catch them."
I said, "How can I know you are in earnest and can trust you?"
"Well," he said, "now I'll tell you all about it."
He said that Leonard had a fine ranch over in the Cloverdale County [New Mexico]. He said, "As soon as I heard of him robbing the stage, I rounded up my cattle on the San Pedro here, and run them over and jumped his ranch." And he said, "Shortly after you boys gave up the chase who should come riding up but Leonard, Head, and Crane." And he said, "By God, they have been stopping around there ever since, and it looks as though they are going to stay."
He said, "They have already told me that I would either have to buy the ranch or get off of it. I told them that I supposed after what they had done, they would not dare to stay in the country and I supposed you would rather your friends would get your ranch than anybody else."
He said, "But if they were going to stay in the country he would either get off or buy the ranch. Now you can see why I want these men either captured or killed, and I would rather have them killed."
I said, "There are three of you and there is only three of them. Why don't you capture or kill them, and I would see that you get the reward?"
He says, "Jesus Christ! I would not last longer than a snowball in hell if I should do that!" He says, "The rest of the gang would think we killed them for the reward and they would kill us." "But," he says, "We have agreed with Wyatt to bring them to a certain spot, where you boys can capture them." And he said, "As soon as Wyatt gets a telegram he is going to send for, in regard to the reward dead or alive, and they will give it, dead or alive, we'll start right after them, to bring them over."
I said, "Where will you bring them to?"
He said, "Either to McLaury's ranch or Willow Springs.”
"Now," he said, "I want you never to give us away or say a word about it, except [to] the party you take along."
There were some few more remarks made-I don't remember what they were-and we broke up for that time. This is about 3 o'clock in the morning after [the] conversation Ike Clanton had with Wyatt Earp. I had another conversation with him when he said Wyatt showed him the dispatch saying that the Wells, Fargo would pay the reward dead or alive.
(Q) In reference to the statement made by Isaac Clanton in his testimony, I ask you: Did you ever, at any time, tell Isaac Clanton to tell Billy Leonard not to think that you were trying to catch him when you were running him, or to tell Billy Leonard that you had thrown Paul and the posse off Leonard's track when he left Helm's ranch at the foot of the Dragoon Mountains, or to tell Billy Leonard that you [had] taken the posse in pursuit of him on to a trail in New Mexico, or to tell Billy Leonard you had done all you could for him, or to tell Billy Leonard that you wanted him to get Crane and Head and get them out of the country, because you were afraid one of them might get captured and get all his friends into trouble?
(A) I never did.
(Q) State now, Mr. Earp, any threats communicated to you that you have omitted to state heretofore.
(A) There was a man met me on the corner of Fourth and Allen Streets about 2 o'clock in the afternoon of the day of the shooting. He said, "I just passed the O.K. Corral," and he said, he saw four of five men all armed and heard one of them say, "Be sure to get Earp, the Marshal" Another replied and said, "We will kill them all!" When he met me on the corner he said, "Is your name Earp?" and I told him it was. He said, "Are you the Marshal?" and I told him I was. I did not know the man. I have ascertained who he was since. His name is Sills, I believe.
(Q) Where does Sills live, and what is his business?
(A) I never met him until that day. I do not know what his business is I don't know where he resides.
(Q) At what house in Tombstone does he live?
(A) I don't know, only by say-so.
(Q) Can you give us any information as to where he lives?
(A) I understand he is stopping at the hospital.
(Q) When did you last see him?
(A) Yesterday. I saw him here.
(Q) Who, if anybody, was present when he made that communication to you, on the corner of Fourth and Allen Streets?
(A) I don't think anybody was close enough to hear the conversation.
(Q) How long did that conversation take place, before you started for Fremont Street?
(A) Somewhere in the neighborhood of a quarter or half an hour not over half an hour; it might not have been that long.
(Q) Was it before or after Behan left Hafford's Saloon?
(A) To the best of my recollection, it was just after.
(Q) At the time you took Isaac Clanton's rifle and pistol from him, did you approach in front or behind him?
(A) Behind him.
(Q) Did you speak to him before you seized his rifle?
(A) I think not.
(Q) With which hand did you take his rifle?
(A) With my left hand.
(Q) Where was your pistol when you seized his rifle?
(A) In my right hand.
(Q) Was he facing you, or was his back towards you when you struck him?
(A) He was turned about halfway around. I don't know whether his body was turned; his head was.
(Q) Which of the Clantons or McLaurys did you see putting cartridges in their belts at the gun shop on the occasion you have spoken of in your direct examination?
(A) William Clanton, Frank McLaury was standing right beside him. I don't think I saw any of the others putting cartridges in their belt. It looked like Frank McLaury was helping Billy Clanton.
(Q) Where was Tom McLaury at the time and what was he doing?
(A) I can't say. They were all in a bunch, and I could not see what each was doing.
(Q) Were Isaac Clanton and Frank McLaury in the gun shop at that time?
(A) I am positive that Billy Clanton, Ike Clanton and Frank McLaury were in there, and am under the impression that Tom was there.
(Q) Where was Wyatt Earp at the time?
(A) He was standing on the edge of the sidewalk when I first discovered him in front of the gun shop.
(Q) Was that during the time that Billy Clanton and the other persons you have named were in the guns hop?
(A) It was. I first saw Wyatt Earp as I turned the comer of Allen and Fourth Streets, in front of the gun shop, on the edge of the sidewalk. I noticed him step into the crowd and take hold of a horse and "shoo" him off the sidewalk.
(Q) What crowd do you allude [to]?
(A) There was a dozen or more on the sidewalk, gathered in a knot. I can't call to mind who they were.
(Q) Where were Morgan Earp and Holliday at this time?
(A) I don't remember seeing him at that time. I saw them on the comer of Allen and Fourth Streets about five or ten minutes before that. I can't say whether Holliday was armed at that time. Morgan Earp was.
(Q) At the time spoken of, when you were in Hafford's Saloon, did you have a shotgun or rifle?
(A) I had a shotgun and six-shooter.
(Q) When and where did you get that shotgun?
(A) [Verbatim as in original document] Got it in the Express Office of Wells Fargo, on Allen Street, at the time they were down at the gun shop. It had been at my service for six months. No one handed it to me at the time. I got it myself.
(Q) What did you do with it?
(A) When I called Morgan Earp, Wyatt Earp, and Doc Holliday to go and help me disarm the McLaurys and Clantons, Holliday had a large overcoat on, and I told him to let me have his cane, and he take the shotgun, that I did not want to create any excitement going down the street with a shotgun in .my hand. When we made the exchange, I said, "Come along," and we all went along.
(Q) You speak of a committee that called on you when you were in front of the gun shop. Who composed that committee?
(A) I don't know their names. They were miners, I should judge.
(Q) At the time when Behan met you on Fremont Street and said, "For God's sake, don't go down there or they will murder you!" where were Wyatt and Morgan Earp?
(A) They were right behind me.
(Q) Where was Holliday?
(A) We were all in a bunch. I think he was also right behind me.
(Q) You say at the commencement of the affray, two shots went off close together, and that Billy Clanton's was one of them. Who fired the other shot?
(A) Well, I'm inclined to think it was Wyatt Earp that fired it.
(Q) How many shots did you fire, and at whom?
(A) I fired four shots. One at Frank McLaury, and I believe the other three were at Billy Clanton. I am pretty positive one was at Frank McLaury and three at Billy Clanton.
(Q) What is Lynch's first name, and place of residence?
(A) I don't know his first name. After the fight he was put on the police force.
-- end of testimony.
I hope you've found this as interesting as I did, especially since it is Virgil Earp's first hand account of what he saw take place. The thing that sticks out is how he was in the lead the whole time.
It appears there was a great deal going on and it was not as simple as some like to portray what took place. To me, it appears that he was keeping his cool and trying to defuse a bad situation while upholding a city ordinance. All in all, while dealing with a lot of hearsay and gossip, pot stirring and some angry individuals including in his own posse, he had a full plate to say the least.