Barr v. State, 17642.

• Decision Date: 12 June 1935
• Docket Number: No. 17642.,17642.
• Citation: 83 S.W.2d 998
• Parties: BARR v. STATE.
• Court: Texas Court of Criminal Appeals

83 S.W.2d 998

BARR v. STATE.

No. 17642.

Court of Criminal Appeals of Texas.

June 12, 1935.

Commissioners' Decision.

Appeal from District Court, Coryell County; Sam R. Scott, Special Judge.

John Barr was convicted of murder, and he appeals.

Reversed and remanded.

T. R. Mears and C. E. Alvis, Jr., both of Gatesville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of murder, and his punishment was assessed at confinement in the state penitentiary for a term of 45 years.

This is the second appeal in this case. The decision of this court on the former appeal will be found reported in 72 S.W. (2d) 905.

The record shows that appellant and deceased were neighbors; that they had been on friendly terms until the deceased dug a ditch on his land across a road which the appellant had been accustomed to using and over which he traveled. The appellant filled this ditch up. Later he and deceased met in a road. The appellant got out of his wagon and approached deceased and asked him why he dug the ditch, to which deceased replied that he did it to keep people from going through his place. Appellant said, "Well, I went through there today and filled that ditch up." The deceased said, "You done me wrong." At this juncture, according to the testimony of the state's main witness M. T. Taylor, appellant seized a wagon standard and struck the deceased, knocking him to the side of the wagon and then struck him again, which caused the deceased to fall out of the wagon on his head. A physician testified that the deceased's death was caused by the wound he had received. The appellant, testifying in his own behalf, denied that he struck the deceased, but that the deceased fell out of his wagon into a ditch upon some rocks; that after the deceased had fallen out of the wagon he picked him up and asked him if he was hurt. The appellant's sons, who were also present at the time that the deceased was injured, corroborated him in his version of the transaction. The state proved that prior to the present trial the witness for the state, M. T. Taylor, had signed an affidavit in which he stated that the testimony he had given at a former trial of the appellant was false. It appears that the testimony given by the witness at a former trial is in harmony with the testimony given upon the present trial to the effect that he had stated that appellant struck the deceased with a stick and knocked him out of the wagon. After this testimony had been introduced by the state, the district attorney proved by the witness Taylor that appellant had threatened to kill him unless he retracted the testimony he had given on the former trial, and that he made the...