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Tulsa World

Colorful judge molded cockfighting's history
2002-11-10

OKLAHOMA CITY -- The war over cockfighting in Oklahoma started in court nearly 40 years ago, and it could finally end there.

Leaders of the Oklahoma Game Breeders Association have filed a lawsuit in an effort to overturn the ban on cockfighting adopted by voters in Tuesday's general election.

That could be futile, though, since the Oklahoma Supreme Court previously ruled against them when they tried to keep the issue off the ballot. Still, any law is subject to challenge, and who knows what legal flaw an enterprising lawyer might find, or a court strike down.

That's what happened in 1963, when the Oklahoma Court of Criminal Appeals blocked the prosecution of several men who had been charged in Blaine County with violating a state law against staging fights between animals. The animals were game cocks.

The Court of Criminal Appeals opinion in favor of the Blaine County defendants, in effect, legalized cockfighting for the first time in Oklahoma. It had been illegal since the Territorial Legislature adopted a South Dakota law in 1890.

The opinion was written by the late Judge Kirksey M. Nix, probably the most controversial and flamboyant judge ever to serve on an appellate court in Oklahoma.

The judge used equal parts of the law and Scripture to strike down the prohibition against cockfighting.

The issue hinged on whether or not chickens are animals.

Nix had been a powerful state senator and practiced law in McAlester. He was a fiery speaker and colorful defense attorney.

He was a friend and business associate of actor John Wayne, who had the locals gawking when he visited Nix in McAlester.

In those days, virtually every state job was Senate patronage. There was no Corrections Department, and the prisons were autonomous.

You didn't apply for a prison job at the state penitentiary, though. You applied at Nix's law office on Grand Avenue in McAlester.

A 27-year-old state representative named Gene Stipe challenged Nix for his Senate seat in 1954. Nix gave him a sound thrashing.

"State highway crews had only two jobs in that district all summer -- put up Nix campaign signs and tear down Stipe signs," a Nix supporter said years later.

When Nix was elected to the Court of Criminal Appeals in 1956, Stipe won a special election and has been in the Senate ever since.

Controversy seemed to follow Nix to the state Capitol. His new Cadillac exploded one day in the judges' parking lot at the Capitol.

Nix blamed a leaking acetylene tank in the trunk of the vehicle. He said he had used it to make repairs at his home on Lake Eufaula.

Others wondered if there wasn't a more sinister explanation.

The judge's son, Kirksey Nix Jr., was widely reputed to be a member of the Dixie Mafia -- a loose-knit collection of criminals who operated throughout the South.

The younger Nix was a suspect in the Louisiana murder of a carnival worker during a robbery in which the victims were chained together. He was found hiding in the woods near the scene of another robbery and the murder of a night watchman in Georgia.

No charges were filed against him in either instance.

But charges were filed after a prominent New Orleans businessman was fatally wounded in his home during a robbery there. His wife fired several shots at the fleeing robbers.

Nix Jr. arrived the next day at the emergency room of a Dallas hospital with a gunshot wound. He refused to let doctors remove the slug, presumably so it couldn't be matched with the slain businessman's weapon.

But he was convicted anyway, and still is serving a life sentence in a Louisiana prison.

He was featured recently in a national television documentary on the murder of a judge and his wife in Mississippi. Authorities suspected there might be a connection with the murders and a prison scam the younger Nix operated.

Judge Nix took early retirement because of heart trouble.

"People always ask me about my health and my son," he told friends not long before his death. "Neither is doing very well."

The cockfighting opinion Nix wrote in 1963 said the statute making it illegal to encourage or stage fights between animals was too vague and nonspecific. For one thing, Nix noted, there was no definition of "animal" in the law.

"Biologically speaking, there can be no doubt that birds or fowls are animals," Nix wrote, but didn't stop there.

"Before the science of Biology was in existence, a distinction was made between living creatures in the Holy Scriptures," he added, quoting

Genesis:

"And God said, Let us make man in our image after our likeness: and let them have domin ion over the fish of the seas, and over the fowl of the air, and over the cattle, and over every creeping thing that creepeth upon the earth."

He further quoted Genesis: "And out of the ground the Lord God formed every beast of the field and every fowl of the air."

The judge stated that a literal interpretation of the law would make its impact virtually limitless. He included a laundry list of things he said might be illegal.

A boy urging his beagle hound to catch a rabbit.

The rancher hunting coyotes with stag hounds.

Those who hunt fox or wolves with hounds.

The mountain man who traps and catches wild hogs with dogs for food for his family.

A rural widow who erects a martin box to encourage those birds to occupy the same and make war on hawks coming within their territory.

He said the law originally was adopted by pioneers who probably wanted to discourage staged fights with dogs, not cockfights.

Nix wrote that cockfighting has been traced back to 400 years before Christ "and dignified by such participants as George Washington, Andrew Jackson, Henry Clay and Benjamin Franklin, all of whom were purported to relish cockfighting."

But the judge conceded some consider the sport "bestial and barbaric." He noted it was illegal in 41 states.

When the new Oklahoma law went into effect Friday, cockfighting is now legal only in New Mexico and Louisiana.

Judge Hez Bussey and Judge Joe Johnson, both now deceased, concurred in the unanimous decision.

Nix said the Legislature was in session and lawmakers could specifically outlaw cockfighting, if they wanted to. For 39 years they didn't want to.

Chuck Ervin, World Capitol Bureau chief, can be reached at (405) 528-2465 or via e-mail at chuck.ervin@tulsaworld.com .