November 8, 1881THE EARPS EXAMINATION Continuation of Testimony for the Prosecution-Wyatt Earp and J. H. (Doc) Holliday Remanded in the custody of the Sheriff. At the convening of court yesterday morning, the prosecution re-opened the case by introducing West Fuller, who being sworn testified as follows:
Reside at Tombstone; occupation gambler, was at Tombstone, Cochise County, on October 26, 1881; I saw a difficulty between the Earp brothers and Holliday on one side and the Clantons and McLowrys on the other side, on that day; the difficulty occurred on Fremont street, near the corner of Third street; the parties were Doc Holliday, Wyatt Earp, Virgil Earp, and Morgan Earp on one side, and Tom and Frank McLowry and Billy Clanton and Ike Clanton on the other side; I was right back of Fly's photograph gallery, in the alley-way; the alley-way runs length wise with Fly's gallery and west of the gallery; it was the first vacant alley-way next the gallery; [Witness marks on the diagram his position in the vacant lot, about seventy-five feet from Fremont street and about ten feet from Fly's building]. I was going down the Allen street to where to Clanton boys were standing for the purpose of telling Billy Clanton to leave town. I mean the parties I saw was Billy Clanton, John Behan, and Frank McLowry; could not see any other person from where I was; well, I expected he was going to get into trouble, as I saw the Earp boys and Holliday armed.
Q. Where were the Earps and Holliday when you saw them armed?
A. On Fourth and Allen Streets.
Virg. had a shotgun; the other had sixshooters; I did not get close enough to say anything to Billy Clanton or any of that party before the shotting commenced; I saw the Earps coming down; saw them just as they got there; heard someone say "throw up your hands" some of the Earps said it; Billy Clanton throwed up his hands and said,
"DON'T SHOOT ME, I DON'T WANT ANY FIGHT." at the same time shooting commenced; I did not see Tom McLowry at the time; I did not see Ike Clanton at the time of the first shooting; I did not see Frank McLowry. The Earp party fired the first shots; two shot; almost together; I would not be positive if they were gun or pistol shots; after these shots the firing commenced very rapidly; both parties were firing then; after the first two shots, Billy Clanton, staggered and fell against the side of the house; there were five or six shots fired by the Earp party before Billy Clanton or Frank McLowry fired and they, Billy and Frank, were the only ones of the Clanton party I saw fire a shot at all; at the time of the first two shot by the Earp party, the hands of Billy Clanton were up. (By demonstration, witness shows hands up even with the head). Frank McLowry, just as the shooting commenced, was standing by holding his horse; I don't think he was doing anything; I saw his hands and nothing was in them; if he had had a weapon in his hand, I would have seen it; I think the first two shots were aimed at Billy Clanton; I saw he was hit; he threw his hands down on his belly; and partly turned around;(witness here shows manner of Clanton). I did not see, at that time, the effect of any shots on any one else; Frank McLowry drew a weapon and fired some shots during the fight; Frank McLowry was in Fremont street when he drew his weapon; I think he was a little past the middle of the street when he drew his pistol; (Witness on the diagram "A," shows the position of Frank McLowry at the time the first two shots were fired by figure 11).
Q. About how far from that position was Frank McLowry when you saw him draw his weapon, and in what direction?
A. He must have be thrity or forty feet from there. At the point 1 marked 12 on the diagram; (northeast direction);
Q. How many shots, if any, had been fired by the Earps and Mr. Holliday, prior to the time you first saw Frank McLowry draw his weapon?
A. There were several shots fired; I don't know how many; can't say exactly; I would say seven or eight.
Q. Did you see Tom McLowry or Ike Clanton during the fight at all?
A. Yes.
Q. When and Where?
A. After the fight had been going on I saw Tom Mclowry pass through an open space in Fly's building. I do not know where he went; did not see him afterwards until until he was brought into the house; saw Ike Clanton pass right out a head of Tom, and that was the last I saw of him.
Q. In what condition was Tom when you saw him in the open space of Fly's building?
A. He was walking along slow; appeared to be hurt; he was staggering.
Q. How long after this was Tom McLowry brought into the house?
A. I don't know; it was probably ten minutes.
Q. What condition was he in then?
A. He was dying; shot in the right side.
Q. Who carried Tom in the house?
A. I don't know.
Q. Who was in the room?
A. Billy Clanton was in there and a man named Keith, and others I do not remember.
Q. Did you examine Tom McLowry after he was brought in the house?
A. I did.
Q. Did he have any arms on at that time?
A. He did not.
Q. Did he have a cartridge or other belt on?
A. I did not see any.
Q. State whether or not, at the time of the shooting, you at any time saw Ike Clanton with any arms?
A. I did not.
Q. Did you see Billy Clanton after the shooting, and if yes, where was he and what condition was he in?
A. I saw him at the house next below Fly's building. He was lying there rolling around in agony from the shot. He said: "Look and see where I am shot." I looked and saw he was shot twice, once in the belly, about here I should judge, (showing), and another shot under the left nipple; the first shot was, I think, a little above the navel and a little to the right. I told him he could not live. He said: "Get a doctor and give me something to put me to sleep." That was about all I recollect him saying, I did not leave until he died.
Q. State whether or not you saw Billy Clanton fire any shots?
A. I did.
Q. Did you see Billy Clanton when he first drew his weapon?
A. I did, it was a pistol.
Q. In what position was his body at the time he first drew his pistol?
A. he was in a crouched, stooping position, leaning against the house, and while so drew his pistol with his left hand; his body was out from the corner so I could see him.
Q. At the time you saw him draw his pistol about how many shots had been fired by the Earps and Holliday?
A. I would judge there had been some six or seven shots.
Q. Do you know whether Billy was wounded in either of his hands or arms?
A. Yes, he was shot through his right wrist.
Q. At the time you saw Frank McLowry about the middle of Fremont street drawing his pistol what condition was he in, or his appearence or actions indicate he was in?
A. He seemed to be wounded, he was staggering and dizzy.
Q. Did you during the shooting, see any horses there, and if so where were they and who had them?
A. I did, Billy Clanton had one and Frank McLowry had one.
Q. Did you or not see any arms on those horses or about those horses, and if so, what description were they?
A. I saw arms on them; I supposed they were rifles from where I was; I am positive there were arms on one, about the others I am not positive; Frank McLowrys horse is the one about which I am certain had arms on him; I saw a rifle on Frank's horse, that is all the arms I saw on him.
Q. State whether or not the rifle which you say you are certain you saw on Frank McLowry's horse was used during the shooting?
A. I did not see anybody use it.
Q. Was it on the horse when the shooting was over?
A. I don't think I saw the horse after the shooting was over.
Q. Did you see Frank McLowry when he left the horse?
A. I did.
Q. About where did Frank McLowry leave the horse?
A. In the street, probably twenty feet from where he stood when the first shot was fired-near the middle of the street.
Q. When Frank McLowry keft his horse where was his rifle?
A. It was still on the horse.
Q. State whether there was any attempt by any one to get possession of the gun or to use the gun that was on Frank McLowry's horse at any time during the shooting, and if so, by whom?
A. Frank McLowry himself tried to get the gun; he was fooling with the horse and it looked to me that he was trying to get the gun out of the scabbard, but there was so much shooting, and the horse keep jumping around and the horse finally got away from him.
Q. About how many shots had been fired by the Earps and Holliday before Frank McLowry commenced to try to get the gun.
A. Seven or eight, probably more.
Court adjouned until 1 p.m. Met pursuant to Adjurnement. Motion was made by the attorney for the prosecution that the defendants' be remanded to the custody of the Sheriff without bail. The point taken was that the proof was conclusive of murder, and overcomes the affidavits filed by on motion for bail. That the proof so far was conclusive of murder, and under the proof the defendants' ought not be admitted to bail in any sum.
Council for defense took the ground that the court having once admitted defendants'to bail, had no jurisdiction to again raise the question of bail until all the evidence was completed. The answer made to this was that the court once having jursidiction could not lose it, until it finally passed on the case. That the defendants' before him were at all times under his direction and it was the right of the court at any time to make any order permitting or refusing bail according as the evidence showed quilt or evidence of the offense charged. That if the court had at first refused bail, whenever subsequently the evidence showed the proof not positive or the presumption not great, then the court had the power and ought to admit to bail. On the other hand, the court was bound were the proof was positive and presumption was great to remand the prisoners to the Sheriff, and so keep them until the presumption was overcome by evidence for the defense.
The court after reviewing the Compliled Laws and wieghing the arguments and authorities cited, said: "The statutes give in one section a right of discretion in the court on the application of bail when a party is charged with murder, but the statutes take such discretion away in a subseqent action." When, in the course of investigaton, "the proof became evident and the presumption great" that the parties accused of murder are guilty of as charged, then the court was bound to remand the prisoner to the custody
of the proper officer. The prisoners were remanded to the custody of the Sheriff until further order of the court. Counsel for defendants before proceeding with the cross-examination of the witness, Fuller, demanded that they be permitted forthwith to produce evidence in behalf of defendants, to show that this case is one where defendant should be admitted to bail, and they herewith make application for such admission to bail.
CROSS-EXAMINATION Q. State as near as you can, when you was on Allen street, when you first saw Billy Clanton, Frank McLowry, and John H. Behan, on Fremont street?
A. I was standing between Third and Fourth; I was on the north side of Allen; I don't know exactly how far from the corner of Third; I was just below the O. K. Corral.
Q. You stated in your direct examination that you saw the Earps and Holliday on Fourth and Allen streets, and that they were armed; Virgil Earp with a shotgun and the others with sixshooters. State how you knew the other had sixshooters. State when and in what manner the other carried or exhibited sixshooters.
A. I saw Holliday put one in his coat pocket; I saw one in Morgan Earp's pocket, on the right hand side of his coat; Wyatt had his right back here, (indicating) stuck in his pants; i think a little on the right side; I saw this on the corner of Fourth and Allen; I was not very far; I was about ten or twelve feet from Holliday, Morg and Virg; I don;t recall what kind of coat Wyatt had on.
Q. Did Wyatt Earp's coat cover the pistol? Was the pistol under the coat?
A. It was at times.
Q. Did not Wyatt have a overcoat on?
A. I don't recall.
Q. Do you know whether his coat was buttoned or not?
A. When I saw the pistol it was not.
Q. Well how was it about Virgil Earp?
A. Virg had a shotgun.
Q. After seeing the Earps and Holliday on the corner of Fourth and Allen streets, in which direction did you go? How rapidly did you proceed, and at what point did you stop?
A. I went right down Allen street; I walked along, not very fast, and I first stopped, probably four or five seconds, and spoke a few words as
I WAS GOING THROUGH The alley between Fremont and Allen; I spoke to Mattie Webb; I met and spoke to her first at the rear of her house.
Q. Were you not talking to Mattie Webb at or near her building when the first shots were fired?
A. I was not.
Q. By what route did you go from the corner of Fourth and Allen street to the point you have designated on the diagram as 10?
A. I don't remember which house it was I went by on Allen street to get to that point, it was below the O.K. Corral.
Q. Did you during the shooting at any time move from the point you have designated on the diagram as 10, and if so when did you move and in what direction?
A. I did move after the shooting commenced; after several shot I moved, not before; I moved back towards Allens street a few steps and then came back again, and was dodging about some, as bullets were flying about; I might have moved back some twenty feet or so towards Allen street, and then back again.
Q. Did you move stepping backwards and keeping your face towards Fremont street, or did you turn around and face towards Allen street as you moved?
A. I was watching the fight all the time; I was stepping back and turning around there.
Q. When you finally stopped had the firing ceased?
A. I don't think it had; I am not positive how many shots were fired after I ceased to move; I am positive that two shots were fired.
Q. Locate as near as you can on the diagram No. 13, the point where Billy Clanton stood when you heard him say, "Don't shoot me, I don't want to fight?"
A. I locate it about here (locating it at a point near the house below Fly's building.)
Q. Locate as near as you can by figure 14 the point at which Frank McLowry was
WHEN THE FIRST SHOT was fired?
A. Eleven is the point where he was, as i have already said.
Q. Locate as near as you can on this diagram the position of the Earp party when the first shots were fired?
A. I think I only saw Doc Holliday and Morgan Earp; I mark 14 for Holliday and 15 for Morg.
Q. Which of the Earp party fired the first shot?
A. I think Morg Earp and doc Holliday fired the first two shots; could not tell which of the two fired first.
Q. Against who or in whose direction was the first two shots fired?
A. I thought they were fired at Billy Clanton.
Q. State by what means you know that the first shot preceded from the Earp party?
A. I saw them shoot them.
Q. What kind of weapon was in the hands of Doc Holliday?
A. I would not be positive; I was looking more at Morg Earp.
Q. If you did see, and therefore can't be posative as to the charachter of the weapon, what was it, if anything about the shooting that you saw, which enables you to state that one of the first two shots was fired by Doc Holliday?
A. I saw a weapon in his hand, heard it go off, and saw the smoke; don't know if it was a pistol or shotgun.
Q. Were you not so excited at the time as to be incapable of accurate observation?
A. No sir.
Q. Had you been drinking any intoxicating liquor that day, if so about how many drinks had you taken and what king of liquor?
A. I had not been drinking that day.
Q. Where were you the night before the day of the shooting, when did you go to bed,if at all, and when did you arise in the morning?
A. If I recollect right it was about three o'clock in the morning that I went to bed and I got up between eleven and twelve.
Q. Had you been drinking any the day or evening before the day of the fight?
A. I had.
Q. To what extent?
A. Considerably.
Q. Over what period of time continusly had that extent over drinking extend?
A. I don't recollect.
Q. Had you had any time during the day, or two, or more, before the time you went to bed at 3 o'clock on the morning of the 26th?
A. I had not.
Q. Describe the charachter of wound on Billy Clanton's wrist?
A. I don't think I could do it; Don't know whether it went through; I only saw the shot on the arm, (designates the place about three inches from the palm of his hand on the arm); don't recollect whether it was on the inside or outside.
Q. Was it on both sides?
A. I don't know.
Q. Was the wound deep or shallow?
A. I cannot say.
Q. Did you see any bullet in the wound?
A. No.
Q. Was it anything more than a mere scrathc or scrape?
A. I did not examine it; I saw it was a shot.
Q. What made you think it was a shot?
A. Blood was about the only thing.
Q. Did you notice whether the skin was knoocked of or not?
A. It was.
Q. Did Frank McLowry first draw his pistol before or after he left his horse or it got away from him?
A. Well, about that time.
Q. Are you unable to say whether it was before or after?
A. I would not be positive.
Q. Did Frank McLowry fire any shots, before he became seperated from his horse?
A. I think not.
Q. You said on your direct examination that you saw Ike Clanton pass through the vacant lot between Fly's building. Are you sure of that?
A. I am.
Q. Are you as sure of that as you are of everything else you testified to?
A. I am positive I saw him pass through there.
Q. You said in your direct examination that you saw Tom McLowry walk as if he were hurt, and staggering, and slowly into the same vacant space between Fly's building. Are you sure of that?
A. I am.
ARE YOU AS SURE OF That as anything else you have testified to?
A. I am. I am positive I saw him go through there.
Q. Do you know Wm. Allen?
A. I do.
Q. Do you know if Wm. Allen was one of the parties that brought Tom McLowry into the house?
A. I don't recollect who brought him in.
Q. In what house was Tom Mclowry brought?
A. In the house on the corner of Third and Fremont; it was the second house below Fly's gallery, on the same side of the street.
Q. Did Billy Clanton ever leave the position, in which you have ascribed him, at the corner of the house, as crouched? If so, when and where did he go?
A. He was rolling around on the ground; he did not leave that place.
Q. What became of the horse Billy Clanton had?
A. I don't know.
Q. Do you know at what stage of the fight Billy Clanton and his horse became seperated?
A. Almost immediately after the fight began; I did not see anything more of the horse.
Q. Locate the horses on the diagram, showing which was Frank McLowry's horse and which was Billy Clanton's horse,at the time the first shot was fired?
A. Can't say what position Frank stood in relation to his horse; Billy Clanton the side of his; Billy's horse was to the left of him.
Q. What are your feeling towards the defendant, Holliday?
A. We have always been friendly.
Q. Are you so now?
A. Yes sir.
Q. Did you not on the 5th day of November, 1881, about 5 o'clock in the afternoon, in front of the Oriental saloon, in Tombstone, say to, or in the presence of Wyatt Earp, that you nothing in your testimony that would hurt the Earps but that you intended to cinch Holliday, or words to that effect?
A. I told Wyatt Earp I thought Holliday was the cause of the fight. I don't think I used the words that I would cinch Holliday; I will not be positive.
RE-EXAMINED, Q. At the time you had the conversation referred to with Wyatt Earp in the last interrogatory, who was present, if anyone?
A. There were several parties there, but I do not remember any one.
Q. Who were you talking to?
A. Wyatt Earp.
The Examination- Reported November 9, 1881