Murder LEGAL in Texas until 1974?

[cynic]

According to this cite:

http://www.nytimes.com/books/first/b/buss-passion.html

**In Texas until 1974, a husband who killed a wife and her lover when he caught them in flagrante delicto was not judged a criminal. In fact, the law held that a “reasonable man” would respond to such extreme provocation with acts of violence.

**

While I’m not terribly surprised to learn that the leading capital punishment state would find murder acceptable if it was done in the name of revenge, I am curious about the specifics of this law. How much of a “window” did you have from catching them in the act to committing the murder(s)? Could a wife kill her husband if she caught him having an affair? Are there any of these murderers out on the loose now, never having been charged for the offense?

[Shagnasty]

Not that this answers your question directly but I know of just such a case. I am from rural Louisiana and I had a boss at a part-time job during high school that killed his wife’s lover during these exact circumstances. He came home, heard them having sex, got his shotgun and shot him in the back while he was on top of her. The lover died shortly after. My boss never did a day of prison time because the “crime” (I mean adultery, not the killing) occured inside his own home. Louisiana has very liberal laws that allow you to kill to defend your home or to stop a crime within your home and his lawyer successfully argued that this fit this case.

[lucwarm]

Traditionally, killing a cheating spouse after catching them in the act was considered manslaughter, not murder. A less serious offense, but one that still will get you thrown in jail for a while.

I would love to a see a cite for this Texas statute.

[Shagnasty]

Oh, and BTW. My ex-boss and his wife are still happily married to this day. I don’t think that she cheats on him in more and she might have a hard time finding volunteers if she wanted to stray.

[Robb]

Let’s see. Quick search of database of Texas cases finds this 1951 case. Harwell v. State, 242 S.W.2d 388 (Tex. Crim. App. 1951).

Appellant was convicted of murder with malice and his penalty assessed at confinement in the state penitentiary for twelve years.

 The facts show that appellant and his wife were separated. There seemed to have been trouble between them. The wife had left the home of the appellant and gone to Hobbs, New Mexico, where her sister resided. After staying there for a few weeks, she was brought back to Brownwood by the deceased, Luther McConnell. She had rented an apartment and was living there with her three-year-old girl, the child of the appellant and herself. The occasion of the killing was at nighttime. Appellant came to the apartment of his estranged wife, and according to his testimony, he found her and the deceased in a compromising position and in the act of adultery. He procured his pistol and fired four shots. The facts seem to show that he fired two shots from the outside of the house through a window in a downward direction, and in a few moments (from three to five minutes) he fired two more shots; and the deceased was found in the apartment suffering from four gunshot wounds and died therefrom within four days. All the wounds were in the back of the rear portion of his body and head.

 Appellant's version of the matter was that he had apprehended these parties in the act of adultery when looking through [156 Tex.Crim. 339] a window at nighttime; that he procured a pistol, loaded it and came back; that the deceased started towards a table and appellant thought that the deceased was going for his gun, and therefore shot him four times as fast as he could, in self-defense.

And then, this 1931 case:

**Conviction for murder; punishment, ninety-nine years in the penitentiary.**

That appellant killed his wife is admitted. He said he cut her with a knife. In addition to the stab wounds, the facts showed that her skull was crushed by a blow in the back of the head which caused her eyes to protrude. A bloody axe was near her body. **No facts support any theory of justifiable homicide.**

Appellant seems to rely on a supposed right to kill his wife if she was taken in adultery or under circumstances reasonably justifying the belief that she had committed adultery, or was about to commit same. **Such is not the law.**  Billings v. State, 102 Tex. Cr. R. 338, 277 S. W. 687; Jiminez v. State, 103 Tex. Cr. R. 163, 280 S. W. 829; Jordan v. State, 107 Tex. Cr. R. 137, 294 S. W. 1109. 

and continues

The exception that same should have told the jury that appellant should be acquitted if he found his wife in such situation as to cause him to believe she had committed adultery, or was about to commit adultery, with Smith, [119 Tex.Crim. 479] did not contain a correct statement of the law, and is of no merit. The second ground of said exceptions was that the charge omitted the affirmative defense of appellant, viz.: That he had seen his wife in a compromising position with Smith under circumstances which reasonably led him to believe that they had committed adultery, or were about to do so; that said charge fails to apply and give appellant the benefit of such facts as applicable to malice aforethought. We confess ourselves not quite able to perceive the specific character of such an exception.

Steadham v. State, 43 S.W.2d 944 (Tex. Crim. App. 1931).

And, I think that’s enough.

cynic, I’m glad you found this so easy to believe.

[El_Zagna]

I remember hearing this claim while growing up in Texas, but I never could remember if it was supposed to be OK to kill the wife or the lover. I never worried about it much though, since even as a kid it sounded like BS to me. I can assure you it’s and urban legend

[sailor]

The state is not Texas, it’s called “temporary insanity”.

[El_Zagna]

In rereading Robb’s post I can see that it’s an urban legend not without consequences. I wonder how many times men have killed their wife or wife’s lover thinking that it was OK under Texas law. More likely they just beat the bejesus out of 'em. Still…

Sailor, temporary insanity is different from being really, really pissed off.

[cornflakes]

For what it’s worth, my grandfather almost killed my grandmother and the man he caught in bed with her. He decided not to since someone needed to raise my mother and he wouldn’t have been around to do so if he killed his wife.

This was in Texas in the 1920s. My grandfather was a detective, so I’m pretty sure that he knew how the law stood on the issue at that time.

[Kilt-wearin_man]

…and that’s probably another reason he didn’t commit murder, Cornflakes.

I’m a little annoyed that people tend to equate support for the death penalty with a permissive attitude toward violent crime. The death penalty is a punishment for a criminal, convicted in a court of law of a capital offense. This is very different from Joe Bob coming home and finding his wife boinking the milkman. In fact, in that instance in Texas, Joe Bob would probably have a good chance of facing the death penalty. Especially in a Texas court.

Cynic, by the way, welcome to the ranks of “Those Who Have Been Taken In By An Urban Legend™”.

[cynic]

*Originally posted by Kilt-wearin’ man *
**Cynic, by the way, welcome to the ranks of “Those Who Have Been Taken In By An Urban Legend™”. **

This is not an Urban Legend. Dr. David Buss is a reputable scientist and author, and it is unlikely that he would perpetuate stereotypes about Texans since he teaches psychology at the University of Texas.

[Robb]

Since I attacked the OP, I’ll try a bit of defense now.

However he came up with it, I seriously doubt Texas ever had a “never-go-to-jail” card on this point. If its there, its exceedingly well hidden.

The best I can think of, is that our dear psychologist is misunderstanding a part of Texas law, which very likely is a part of all criminal jurisprudence in the States. Texas had, and still has, concepts that diminish intent. Not surprisingly, the punishment of a homicide varies depending on the culpable mental state of the person accused. Intent in Texas now as follows:

§ 6.03. Definitions of Culpable Mental States

 (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

 (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

 (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

 (d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Sometimes a law allows a defendant accused of one mental state to receive a lesser penalty if the jury decides the defendant had a different mental state. For example, under present murder law in Texas, a defendant who can show he acted under sudden passion, he can be punished as a lesser crime.

19.02. Murder

 (a) In this section:

 (1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.

 (2) "**Sudden passion**" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

 (b) A person commits an offense if he:

 (1) *intentionally* or *knowingly* causes the death of an individual;

 (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

 (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

 (c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.

 (d) **At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.**

A concept similar to sudden passion has existed in Texas law for some time, I believe. The possibility is that our dear psychologist somehow misunderstood this concept in Texas law and made an unsupported, blanket statement.

I can find cases that suggest that this old concept was called “adequate cause”. It was a statutory way to decrease a homicide from murder to homicide. It would still be a criminal act, although of a lesser degree than murder.

[sailor]

>> Sailor, temporary insanity is different from being really, really pissed off

Nah, you just need a good defense lawyer

[El_Zagna]

Let’s take another look at Dr. Buss’ quote:

In Texas until 1974, a husband who killed a wife and her lover when he caught them in flagrante delicto was not judged a criminal. In fact, the law held that a “reasonable man” would respond to such extreme provocation with acts of violence.

Buss is very specific here. He claims that a particular law was changed in 1974, and implied that there was specific language in the law that described what actions a “reasonable man” might take in such circumstances.

I don’t have the time, resources or inclination to research Texas law prior to 1974, but I am quite confident that this claim is bullshit.

Dr. Buss may indeed teach at the University of Texas, but this doesn’t mean that he is immune from perpetuating the stereotype of Texans as a bunch of yahoos. However to be fair to Dr. Buss, the Texas Legislature is famous for doing some really stupid things, so it’s somewhat understandable.

Now as Robb suggests there may have been some special consideration given to a person in this situation, but that is far different from making murder legal.

[cynic]

Originally posted by Robb
**
A concept similar to sudden passion has existed in Texas law for some time, I believe. The possibility is that our dear psychologist somehow misunderstood this concept in Texas law and made an unsupported, blanket statement.**

Dr. Buss is not the only one making this claim. A Google search also turned up these:

chap1.pdf

**The literature cites either formal laws (until recently) or informal acceptance of men who kill their wives if provoked in certain ways; for example, adultery by a wife has long been such an example, particularly if caught in the act (Daly & Wilson 1988a; Scutt 1990; Greene 1989). In fact, until 1974 Texas law stated that such an act of homicide was justified and not subject to any penalty.

**

http://www.roxanneconlinlaw.com/womenandlaw.html

**Texas and Utah had laws until 1971 that basically said it was permissible for a man to shoot his wife’s lover if he caught them in an adulterous act. It was called passion shooting. The reverse of this was called homicide.

TEX. PENAL CODE ANN. art. 1220 (Vernon’s 1966), repealed by implication by TEX. PENAL CODE ANN. §§9.31-.33 (Vernon’s 1974), which set out defenses against charges of homicide.

**

http://www.undelete.org/woa/woa01-05.html

**And until 1972, under Article 1220 of the Texas Penal Code, a man could murder his wife and her lover if he found them ‘in a compromising position’ and get away with it as ‘justifiable homicide.’

**

http://www.reporternews.com/1999/opinion/ivins0311.html

**We continue to bump along with legal disparities (women were not allowed to serve on juries until 1954; they thought it might upset us), the most notorious of which was Article 1220 of the state penal code. That article made it legal for a husband who found his wife and her lover in flagrante delicto, as we say in Muleshoe, to dispatch one or both of them to kindome come without any legal consequence.

**

[minty_green]

Much as it pains me to say this, cynic is correct about Article 1220. The Texas Court of Criminal Appeals (our supreme court for criminal cases) quotes the statute in the case of Shaw v. State, 510 S.W.2d 926, 927 n.1 (Tex. Crim. Apps. 1974):

Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection.

The court also notes that the Article 1220 defense was repealed as of Jan. 1, 1974.

[lucwarm]

It’s so cool when I hear something that sounds ULish and it turns out to be true. Assuming that minty green isn’t pulling our legs, I must say “Way to go, cynic.”

[El_Zagna]

Wow! Do I have egg on my face.

This is Snopes-worthy.

(Sorry if this is a double post.)

[minty_green]

I never make up legal citations, lucwarm. But I can’t link you to where I found the case in the mytexasbar.com database 'cause you need to be a member of the Texas Bar to get in. Also, findlaw.com and the court’s web site only go back a few years. If anyone else knows another free Texas database, feel free to leave a link–I just double-checked, and the citation is correct.

[Robb]

Well, isn’t that something.

I believe I see my mistake. If a husband merely suspected his wife of adultery (see Steadham v. State), Texas law was much too civilised to justify homicide, whereas if wife were caught during adultery, homicide was justified. Wow.

My apologies for the error.