The Attempt to Arrest the Earp Party

— Tombstone, March 1882

Frank Stilwell was dead in Tucson.

The coroner’s investigation into his death named Wyatt Earp, Warren Earp, Doc Holliday, Sherman McMaster and Johnson as the men believed responsible.

The men did not remain in Tucson. They returned to Tombstone.

Their return brought the Stilwell investigation directly to Cochise County Sheriff Johnny Behan.

Back in Tombstone

A contemporary newspaper dispatch reported that the Earp party returned to Tombstone and went to the Cosmopolitan Hotel. According to the report, the men remained there until approximately seven o’clock that evening.

Meanwhile, Pima County Sheriff Bob Paul was dealing with the Stilwell investigation in Tucson. Paul telegraphed Sheriff Behan in Tombstone and requested that the men implicated in Stilwell’s death be arrested.

Behan attempted to make the arrests.

They were not made.

Behan’s Attempt

One contemporary newspaper gave a dramatic account of the confrontation. It reported that when Behan attempted the arrest, the men:

“drew their guns on him and walked out of town, mounted their horses and left for the hills.”

That description should remain attributed to the newspaper.

The same report contains what it presented as Behan’s own account of what happened. According to the article, Behan telegraphed Sheriff Paul that he had:

“attempted to make the arrest and was forcibly resisted by the party and a posse of their friends.”

That is as far as the evidence allows us to go with confidence.

Behan attempted the arrest. The men did not submit. Behan reportedly described their response as forcible resistance. A newspaper additionally reported that guns were drawn.

The surviving accounts do not establish precisely what occurred during the confrontation.

The Earp’s Leave Tombstone

After Behan’s unsuccessful attempt, the Earp party left Tombstone. The contemporary dispatch reported that they mounted their horses and “left for the hills.”

At this point, it is tempting to describe the men as a federal posse or to present Wyatt as acting under the authority of a Deputy United States Marshal. The surviving documentation examined for this account does not justify doing so.

Wyatt Earp had previously served as a Deputy U.S. Marshal. On February 1, 1882, however, Wyatt and Virgil Earp tendered their resignations to U.S. Marshal Crawley P. Dake.

No appointment or reappointment document has been located establishing Wyatt’s federal status during the events following Stilwell’s death.

For that reason, the men leaving Tombstone are described here simply as the Earp party.

Paul Responds

Behan’s failure to make the arrests was reported back to Tucson. According to the contemporary dispatch, Sheriff Paul prepared to travel from Tucson toward Tombstone.

The newspaper reported:

“bloodshed is expected.”

That was a prediction by the newspaper, not an event.

The same report stated that armed men were being organized in Tucson to enforce the law. Whatever the expectations of the newspaper, authorities in Pima County were treating Stilwell’s death as a homicide requiring arrests.

Eight Armed Riders

The newspaper also reported another development outside Tucson. Eight mounted men were seen near the city. They were described as heavily armed, wearing gray slouch hats, with horses that appeared tired from hard travel.

The newspaper believed the riders were friends of Frank Stilwell. It offered no identification establishing that conclusion.

We can therefore document the report of eight armed riders. We cannot document from that report who they were or why they were there.

The Grand Jury

The Stilwell case continued through the Pima County legal system.

On March 25, 1882, the grand jury returned murder indictments against Wyatt Earp, Warren Earp, John H. “Doc” Holliday, Sherman McMaster and John Johnson.

The indictment contained multiple counts. Rather than depending upon proof that one particular defendant fired the fatal shot, the counts alternately alleged that individual defendants fired upon Stilwell while the others were present aiding and abetting.

An indictment was an accusation. It was not a conviction.

But by March 25, the attempt to hold the five men responsible for Stilwell’s death had moved beyond newspaper accusation and the finding of a coroner’s jury. They had been formally charged with murder.

What Can Be Said

The surviving contemporary record establishes a relatively simple sequence.

Frank Stilwell was killed in Tucson. The coroner’s investigation named five men as responsible. Those men returned to Tombstone. Sheriff Bob Paul requested that Sheriff Johnny Behan arrest them. Behan attempted to do so. The arrests were resisted and were not made. The Earp party left Tombstone. A Pima County grand jury subsequently indicted the five men for Stilwell’s murder.

Anything beyond that requires greater caution.

Whether guns were actually drawn on Behan depends upon accepting one newspaper’s description of the confrontation. The identity and purpose of the eight armed riders outside Tucson remain uncertain. And the precise federal status of Wyatt Earp at this point has not been established by an appointment or reappointment document located for this research.

Leaving Tombstone

The immediate chain of events that began with Morgan Earp’s murder had now changed direction.

Morgan was dead.

Frank Stilwell was dead.

Wyatt Earp and four companions had been accused of Stilwell’s murder.

Johnny Behan had attempted to arrest them.

The attempt failed.

The men rode out of Tombstone.

What they did after leaving town is another story.

Documentation Note

This account deliberately avoids describing Wyatt Earp’s party as a federal posse or stating that Wyatt was serving as a Deputy U.S. Marshal during these events.

Wyatt and Virgil Earp’s February 1, 1882 resignation from their positions as deputy U.S. marshals can be documented. An appointment or reappointment establishing Wyatt’s federal status during the Stilwell aftermath has not been located in the material examined for this account.

The report that the Earp party drew guns on Sheriff Behan is likewise presented only as a contemporary newspaper account. Behan’s reported telegram stated that he attempted the arrests and was “forcibly resisted,” which establishes resistance without establishing precisely how it occurred.

Principal Contemporary Documentation

• Contemporary March 22, 1882 newspaper reporting concerning the Earp party’s return to Tombstone, Sheriff Bob Paul’s request for arrests, Johnny Behan’s attempted arrest, and the party’s departure.

• Frank Stilwell coroner’s proceedings and contemporary reporting of the coroner’s verdict.

• Pima County grand-jury proceedings following Stilwell’s death.

• Pima County indictment of Wyatt Earp, Warren Earp, Doc Holliday, Sherman McMaster and John Johnson, March 25, 1882.

• Virgil W. Earp and Wyatt S. Earp resignation letter to U.S. Marshal Crawley P. Dake, February 1, 1882.