Wyatt Earp went to Tucson late December 1880, to give testimony in Curly Bill Brocius' case. The Arizona Daily Citizen on December 27, 1880, published his testimony.

"Wyatt S. Earp, was called for the teritroy, testified: On the 27th of last October was Deputy Sheriff; resided at Tombstone; saw defendant that night at the time Marshal White was shot; was present at the time the fatal shot fired; saw Mr. Johnson there at that time; my brother came up immediately after; this affair occurred back of a building in a vacant lot between Allen and Tough Nut streets; I was in Billy Owen’s saloon and heard three or four shots fired; upon hearing the first shot I ran out in the street and I saw the flash of a pistol up the street about a block from where I was; several shots were fired in quick succession; ran up as quick as I could, and when I got there I met my brother, Morgan Earp, and a man by the name of [Fred] Dodge; I asked my brother who it was that did the shooting; he said he didn’t know - some fellows who run behind that building; I asked him for his six shooter and he sent me to Dodge; after I got the pistol, I run around the building, and as I turned the corner I ran past this man Johnson, who was standing near the corner of the building; I ran between him and the corner of the building; but before I got there I heard White say: “I am an officer; give me your pistol;” and just as I was almost there I saw the defendant pull his pistol out of his scabbard and Marshal White grabbed hold of the barrel of it; the parties were not more than two feet apart facing each other; both had hold of the pistol, and just then I threw my arms around the defendant, to see if he had any other weapons, and looked over his shoulder, and White saw me and said: “Now, you G- d- d- of a bitch give up that pistol;” and he gave a quick jerk and the pistol went off; White had it in his hands, and when he fell to the ground, shot, the pistol dropped and I picked it up; as he fell, he said, “I am shot.” The defendqant stood still from the time I first saw him until the pistol went off; when I took defendant in charge he said, “what have I done? I have not done anything to be arrested for.”  When the pistol exploded I knocked defendant down with my six-shooter; he did not get up until I stepped over and picked up the pistol, which had fallen out of White’s hands as he fell.  I then walked up to defendant, caught him by the collar and told him to get up.  I did not notice that he was drunk; if he was I did not notice it.  When I turned the corner he was in the act of taking his pistol out of his scabbard.  I examined the pistol afterwards and found only one cartridge discharged, five remaining.  The pistol was a Colt’s 45 calibre."

    Judge Nuegass based on Wyatt Earp's testimony and Fred White's own death bed statement that the incident was an accident, concluded that Fred White's death was the result of a "Homocide by Misadventure" -- simply an accident, and  he released Brocius from custody.