Nix v. State

• Citation: 74 S.W. 764
• Parties: NIX v. STATE.
• Decision Date: 03 June 1903
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

74 S.W. 764

NIX v. STATE.

Court of Criminal Appeals of Texas.

June 3, 1903.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Barto Nix was convicted of murder in the second degree, and appeals. Reversed.

Bennett & Jones, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of eight years.

The difficulty in which the homicide occurred arose over a disagreement between appellant and deceased concerning some hay. It appears that appellant, a short time previous to the difficulty, had sold a pair of mules to deceased (who had previously been a tenant of his) for $200, for which he took his note; and also sold him a ton of hay and some corn, for which he took his note for $30. Deceased in the meantime ceased to be his tenant, and bought a little place near by from another party, on which he moved. Appellant, during the preceding year, had rented this place, and had stored some corn and five tons of hay in the barn on the place. Deceased became dissatisfied with the mule trade, and turned the mules back to appellant, or rather, refused to take them, and insisted on the hay and corn trade. Appellant insisted if deceased wanted the corn and hay he should also keep the mules. It appears there was an agreement between deceased and appellant that the hay should remain in the barn on deceased's place until July, or until it should be removed at the convenience of appellant. While this disagreement existed between deceased and appellant with reference to the contracts between them, appellant sold some of the hay, and on Monday preceding the homicide delivered some of it to a purchaser, and on Tuesday undertook to deliver some more. Deceased interfered, and his wife, under his instructions, refused to allow the hay to be removed. On Thursday (the day of the homicide) appellant went to the barn to move the hay, or a portion of it, and the difficulty arose between him and deceased which resulted in the homicide. Appellant went to the barn to deliver the hay, and carried his pistol with him. Deceased subsequently came to the barn, also armed. Deceased removed from the crib a pair of scales, which had been used in weighing the hay. After removing the scales, deceased was in the barn with Harvey Hill, who had accompanied him from his home, some 100 yards distant; and at this juncture appellant shot deceased through a crack in the barn. The testimony on the part of the state and defendant does not differ materially up to this point. The evidence of the state's witness Harvey Hill tends to show that deceased was standing by his side in the barn, when appellant, from the outside, told deceased to let the scales alone, and asked deceased if he wanted any trouble. Deceased replied, "Do you want any?" Defendant said, "No, sir; I don't want any; nothing but corn and hay." Then defendant said to deceased, "Get out of there!" and deceased said, "I won't do it; this is my crib." At this juncture appellant fired, and deceased fell. Witness says that deceased at the time was not doing anything; that his hands were swinging by his side, and he was making no demonstration. Appellant and his son, Jim Nix, the only other immediate witnesses to the homicide, both testify that deceased and Harvey Hill were in the barn, and deceased picked up the scales and set them on the outside. Appellant said to him: "Mose, don't do that. You don't want to make trouble here, do you?" Deceased said, "No, do you?" Appellant said, "I don't want nothing but my corn and hay." Deceased said, "You won't get it." Appellant replied, "I will get it when the wagons come." Deceased said, "Show me your papers." And appellant said, "The wagons will be my papers." When appellant said that, deceased just threw his hand in his pocket, and said, "I am here to see that you do not move another bale of hay." At this juncture appellant fired, and deceased fell. This is a substantial statement of the circumstances immediately attending the homicide.

During the trial the state proved by Robert Hines that he came up about the time the homicide occurred; that Jim Nix was standing out in the road some 20 or 30 steps from defendant when the gun was fired; and that he asked Jim Nix what was the matter, to which Jim Nix replied, "Pa has just killed Mose." Defendant excepted to this testimony because it was made after the transaction was over, and not in the hearing of defendant, and was not a part of the res gestæ. The court explains the admission of this testimony by stating that the evidence was admitted on the theory of a conspiracy existing between appellant and his son, and as a part of the res gestæ. The state may have insisted on the theory of conspiracy between father and son to commit the homicide; and, if there was such a conspiracy, the declaration of Jim Nix, son of appellant, would have been admissible as a part of the res gestæ, but not otherwise. We have examined the record to see if this theory of conspiracy was borne out, but, in our opinion, the testimony does not justify that view of the case. However, we do not find that the fact appellant killed deceased was a controverted issue, and we fail to see how this testimony could prove injurious.

By the next bill of exceptions it is shown that Jim Nix, after the shooting, proceeded to his house, situated some 200 yards from the scene of the killing, and that witness Will Vernon approached him, and asked him what was the matter. Nix replied, "Pa has killed Mose, but we have the law on him." This testimony was admitted over the objections of appellant, the objections being that it was the mere statement of a bystander, not connected with the transaction, and no part of the res gestæ. However, the court, in admitting the testimony, states that the evidence tended to show that Jim Nix was a co-conspirator with appellant, and that immediately after the shooting he went in a rapid walk to his dwelling house, some 100 yards away. Vernon was 200 yards distant at the time from Nix's residence, and walked tolerably fast, meeting Jim Nix in his yard, and the statement complained of was made. The statement was admitted as res gestæ under the doctrine of co-conspiracy. Even if it be conceded that Jim Nix was a co-conspirator with appellant in the homicide—which, however, as stated before, the evidence does not bear out—what he said after the transaction, if it was of a criminative character, could hardly bind appellant, because it was so far removed in point of time and place as not to be res gestæ of the transaction, to wit, the homicide.

Appellant complains that the court permitted the state to offer testimony, or rather to ask a number of questions, suggesting that appellant was implicated in the theft of a certain horse, which the proof shows was stolen by one Will Scott a short time before the homicide. The learned judge seeks to justify his admission of this character of testimony and of these questions in a lengthy explanation to the bill; but this explanation fails to show appellant was in any wise implicated in...