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In most species, males compete with each other for access to females. Male
competition is believed to arise because of the disparity between
the relative sizes of their gametes. Females are the producers
of a larger, more costly gamete – a nutrient laden egg. Because
her initial investment in her offspring is much larger than the
male, she has a higher stake in it. This often leads the
female to accompany her pre-fertilization investment in the gamete,
with a correspondingly larger post-fertilization investment in
the form of parental care. Alcock, J., Animal Behavior,
5th Edition, Sinauer Associates, 1993, Pages 395-404 and 419-424.
The resources that the female expends on producing the egg, and
then caring for her offspring, limit her reproductive capacity. The
male has different limitations. Instead of putting energy
into parental care, his strategy is to produce a large number of
low-cost gametes, and then to concentrate on spreading them around
by mating, hoping that at least one will successfully fertilize
a target. Because the number of male gametes outnumbers the
female gametes, male gametes compete with each other for female
gametes. Clutton-Brock, T.H., The Evolution of Parental
Care, Princeton University Press, 1991, Page 3. Males
are limited by their ability to find and secure eggs to fertilize,
and the female and her egg become scarce commodities in the reproductive
market.
Competition among males takes many different forms. They
can accumulate economic resources that are appealing to females,
try to control the females, or to wear displays that flaunt themselves
to the females they desire. Low, Page 47. In many species,
males are colorful and decorative to attract potential female mates
who, in contrast, are quietly drab. To enhance their attractiveness
to the other sex, males may display signals – such as large
horns or colorful feathers – to signify that they are healthy
and prosperous, and carry good genes. These displays are
meant to communicate to a female that the particular male is a
good quality mate choice. In bowerbirds, females may inspect
male after male until she identifies the lucky, handsome, male
with she mates (Alcock, Page 395). This form of competition
is referred to as “sexual selection,” where the females
pick and chose the characteristics of males that they prefer. Over
time, the males’ looks evolve to the females’ liking.
Because of the competition among males for females, males in some
species will guard their mates, preventing other males from having
access to her. A female who bears her offspring live has
little difficulty, at least in the beginning, determining which
are her own. The male is in a more thorny position because
he can’t be certain that his own sperm was used to fertilize
his mate’s egg. His best bet is to never let the female
out of his sight. By standing watch over his mate, he can
deter other males from copulating with her, and stealing his opportunity
for a child. This behavior – known as “mate guarding”– is
believed to be a male adaptation that increases the likelihood
that a progeny will be his own. Mate guarding, especially
at times when the female is receptive to fertilization, is observed
in many different animal species. Short-term mate guarding occurs
in African elephants. To ensure the paternity of any child she
bears, the male elephant will stick closely to the female during
the period of her estrous cycle when she is most likely to have
a fertilizable egg (Alcock, Page 422).
In humans, ovulation is nearly undetectable by human males. The
male’s response to the female’s strategy of keeping
her fertility status secret is predictable. He stays close
by his female for extended periods of time to increase the chances
that he will be nearby when the time is ripe for fertilization. Marriage
provides a legal tool for making her inaccessible to other males,
putting a legal wedge between another man and his wife. It
can be considered just another form of long-term mate guarding.
In Texas, when another male interfered with the husband’s
access to his wife, it could have dire consequences. Under
Article 1220 of the Penal Code of the State of Texas, homicide
was “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.” This
statute was in effect until 1974 (James Dilliard Shaw, Appellant
v. The State of Texas, Appellee, 510 S.W. 2d 926 (Court of
Criminal Appeals of Texas, 1974)). It was also known as the “paramour
statute.” The paramour statute added an extra bite
to mate-guarding.
Anthony Price v. The State. No. 3581, COURT
OF APPEALS OF TEXAS , 18 Tex. Ct. App. 474; 1885 Tex. Crim. App.
LEXIS 134, June 13, 1885, Delivered.
PRIOR HISTORY: Appeal from the District Court of Travis.
Tried below before the Hon. A. S. Walker.
The indictment in this case charged the appellant with the murder
of one William Chandler, in Travis county, Texas, on the 27th day
of December, 1884. His trial resulted in his conviction of manslaughter,
and he was awarded a term of two years in the penitentiary.
Justice of the Peace William Von Rosenburg, Jr., who presided
as coroner at the inquest upon the body of the deceased, was first
introduced by the State to identify the voluntary statement of
the defendant, reduced to writing upon that proceeding, and to
establish the proper predicate for the admission of the writing
in evidence; which he did. The statement reads as follows:
"My name is Anthony Price. On last Saturday night, December
27, 1884, I went to bed at my house near Austin, in Travis county,
Texas, and left my wife, my mother and the deceased, William Chandler,
sitting up at the fire in the same room. I went to sleep after
some time, but before I went to sleep he said "good night," and
went out of the door. After I went to sleep my mother woke me up,
and told me that my wife was out of the house, sick, and to go
and see about her. I got up, and went to the fire and stood there
awhile, and went back to bed again. I thought she might be at prayers,
and, therefore, did not go out, and went back to bed. After I went
back to bed my mother called me again, and I got up. Having seen
a package in the room, I thought that something was wrong, and
got up and went out to see if I could see or hear her. I heard
talking at my corn-pen, and went back to the house and got my gun.
I then went up to the corn-pen and saw the door open. I went in
and asked who was in there, and repeated it three times before
I got an answer. My wife got up and said: 'It's me, Price;' and
said that she went up there to get some corn. I then said: 'Yes,
you will get some corn,--come out.' I asked her who was with her,
and she said no one. I said there was, and she said, 'No,' and
went out at the door. I still asked who was in there, and William
Chandler got up and caught the gun. I then backed out at the door,
holding the gun, and Chandler also holding to it. After we got
out of the door I said: 'Let go of the gun, and let me go on about
my business.' My wife was then begging me not to shoot him. He,
Chandler, then let loose the gun, and I shot him. I then went home
and put on my pants, and heard William Chandler crying and saying:
'O Lord!' I then took my gun and went back to where he was lying,
near where I had shot him, and I hit him on the head twice with
the stock of my gun. I can't say how long this was after I shot
him. I hit him with the gun because I was angry with him. Just
before I hit him, he asked me not to hurt him, and that made me
more angry, and I hit him twice on the head with the gun. I then
went up to the house of Charles Wilkins, and woke him and his mother,
and told them what I had done.
"The deceased, William Chandler, had been in the habit of
whispering with my wife in the house, and I had asked him to quit
his blackguarding and breaking up my seats in the house. He was
also constantly buying things for my wife, and I asked her on Friday
and Saturday, December 26 and 27, not to accept his presents. He
brought some corn to our corn crib for my wife to make some hominy
out of. My wife asked me to bring it up. I refused at first to
do so, but afterwards, on Saturday evening, I took it down. Chandler
was then there, carrying on his foolishness. He and my wife then
shelled the corn and put it on to cook, and by the time it got
half done, he took some of it and parched it, and went on up to
the house where he was hired. She let the corn cook on after he
left, and took it up and put it into a bucket, and went on to the
well with it, and I asked her if I might go with her, help her
wash it, bring it back, and also bring some water. She said no,
that she would bring it back. After waiting a sufficient time for
her to be back, I noticed Chandler going down where she was. He
came on with her to the house, helping her bring the water and
the corn. I was cutting wood. He said to me: 'When you sent your
wife off, why didn't you tell her what you sent her after?' and
told me that she asked him to bring the water up. They went on
into the house, and she commenced getting supper. He remained around
there, playing with my wife. I told her to hurry up, and she said
she was hurrying all she could. During this time she and Chandler
were whispering around a right smart.
"When I went to the corn crib, my wife and Chandler were
lying down in the crib. After the light was struck--after I shot
him--I found his coat lying in the crib, where they got up from.
When he left my house he had his coat on. I do not know what they,
Chandler and my wife, were doing in the crib. I did not take time
to investigate that. I knew they were after no good. That was the
only time I ever saw them lying down together anywhere. I can't
say that I thought they were having connection with each other
at the time I called to them at the door of the crib, but, by finding
them there together, I supposed that their object was to have connection
with each other. I had no knowledge of their having any connection
with each other, and I shot him, Chandler, because I felt that
that was the object of their being there together at that time."
Doctor Shannon testified, for the State, that the deceased died
from the effects of a gun-shot wound, which he described. There
was no break or abrasion of the skin on the head, and the deceased,
before he died, told the witness that he had his hands on his head
when he was struck there.
…
The motion for new trial raised the questions involved in the
opinion.
DISPOSITION: Reversed and remanded.
COUNSEL: Dowell & Wooten, for the appellant.
J.H. Burts, Assistant Attorney-General, for the State.
JUDGES: White, Presiding Judge.
OPINIONBY: WHITE
OPINION: White, Presiding Judge. Appellant was convicted
of manslaughter committed upon one William Chandler; his punishment
being assessed at two years' confinement in the penitentiary.
Before the homicide appellant had evidently become dissatisfied
with the familiarity, which had existed for some time, as shown
in the conduct of his wife towards deceased, and the deceased towards
his wife. He may even have entertained suspicions that all was
not as it should be between them, or, to say the least of it, he
felt that their conduct was highly improper.
On the night of the homicide he had evinced this state of feeling
of dissatisfaction and suspicion in more than one particular, when
deceased and his wife had been seen whispering and "carrying
on together," before he retired to his bed, leaving his wife,
the deceased and his mother still sitting by the fire. But he retired
and went to sleep. Not long after, Chandler, the deceased, left;
and not long after he had, ostensibly, gone to his home, defendant's
wife, complaining of feeling sick, went out. She was gone so long
that defendant's mother became uneasy, woke defendant up, and told
him he had better go and see what was the matter. Defendant finally
got up, and, hearing persons talking in his corn-pen, went back
into the house, got his gun, went to the corn-pen, found the door
open, went in and asked "who was there?" After this question
had been repeated three times by him, his wife, who was lying down
with some one in the crib, got up and answered "it's me, Price," and
said she had gone there to get some corn. Defendant told her to
come out, and asked "who was with her?" She replied "no
one." Defendant insisted there was some one. She said "no," and
went out at the door. Defendant again asked who was there, and
deceased got up and caught the gun. Defendant backed out of the
door, the parties struggling over the gun. After getting out of
the door defendant said, "let go the gun, and let me go about
my business"--the wife begging her husband not to shoot him.
Chandler then turned loose his hold of the gun, and defendant shot
him. After the shooting, when a light was struck, the coat of deceased
was found spread out in the crib, at the place where he and defendant's
wife had been lying down.
In his voluntary statement, which was read by the prosecution
as evidence at the trial, defendant says: "I do not know what
they (Chandler and my wife) were doing. I did not take time to
investigate that. I knew they were there for no good. That was
the only time I ever saw them lying down together anywhere. I can't
say that I thought they were having connection with each other
at the time I called to them at the door of the crib; but by finding
them together I supposed that their object was to have connection
with each other, and I shot him, Chandler, because I felt that
that was the object of their being there together at that time."
This concise statement of the substance of the facts will sufficiently
illustrate the main question presented in the record, and so ably
argued by appellant's counsel.
The defense claimed was that, under the facts stated and our law,
the homicide was justifiable. Our statute so reads: "Homicide
is justifiable when committed by the husband upon the person of
any one taken in the act of adultery with the wife, provided the
killing take place before the parties to the act of adultery have
separated." (Penal Code, art. 567.) We are not aware that
a similar statute, making such a homicide justifiable, can be found
in the Codes of any other State; though the principle and precedent
from which ours is derived is of most ancient origin. But in most,
if not all, the States, as at common law, a killing under such
circumstances would reduce the homicide from murder to manslaughter.
Blackstone says: "So, if a man takes another in the act of
adultery with his wife, and kills him directly upon the spot, though
this was allowed by the laws of Solon, as likewise by the Roman
civil law (if the adulterer was found in the husband's own house),
and also among the ancient Goths, yet in England it is not absolutely
ranked in the class of justifiable homicide as in case of a forcible
rape, but it is manslaughter. It is, however, the lowest degree
of it; and therefore in such a case the court directed the burning
in the hand to be gently inflicted, because there could not be
a greater provocation." (4 Black. Com. (Chitty), side p. 191.)
…
Our statute uses the expression "taken in the act of adultery
with the wife." The question is as to the proper meaning or
construction of these terms. Do the words, when properly construed,
mean that the husband must discover, find, or see the wife and
adulterer in the very act of illicit intercourse or copulation
in order to constitute the offense denominated "taken in the
act of adultery?"
Such positive proofs of the commission of the crime of adultery
are not required, and are rarely attainable. As a crime, adultery
itself may be established and proven by circumstantial testimony.
(Richardson v. The State, 34 Tex. 142.) Should the law hold the
husband to a greater or higher degree of proof than itself requires
to establish a given fact? It is a late hour of the night,--the
parties are found in a corn crib some distance from the house,
lying down in the dark. They refuse, at first, to answer when called;
then, when the wife answers, she denies that any one is with her,--when
deceased gets up he clutches the gun,--defendant finds that the
one whose previous conduct and "carrying on" with his
wife has excited his suspicions is the one he has thus found in
company with his wife. What would any reasonable, sensible man
have concluded from these circumstances? In other words, how did
the matter reasonably appear to defendant? To him are not these
facts "confirmations strong as proofs of holy writ?" Could
it have been otherwise than that he had caught the parties in the
act of adultery, either just as they were about to commit, or just
after they had in fact committed it? His voice when he called,
perhaps, had arrested them in the very act of carnal coition, and
if that were so, then were not the parties caught or taken by him
in adultery? Does not the law always estimate a man's right to
act upon reasonable appearances? Taking into consideration the
res gestoe,--taking the acts of the parties and their words coupled
with their acts,--and were not the appearances of a character such
as would have created the reasonable apprehension and conviction,
in a person of ordinary mind, that the parties thus taken were
taken in the act of adultery?
…
As to a proper construction of the expression "taken in the
act," we cannot believe that the law requires or restricts
the right of the husband to the fact that he must be an eye-witness
to physical coition of his wife with the other party. As we have
seen, adultery can be proven by circumstances, and the circumstances
in this case were not hearsay so far as this defendant was concerned;
they transpired in his own presence, sight and hearing. A mistake
may possibly exist as to the fact; "but if a person laboring
under a mistake as to a particular fact shall do an act which would
otherwise be criminal, he is guilty of no offense" (Penal
Code, art. 45), provided it be such mistake as does not arise from
want of proper care on his part. (Penal Code, art. 46.) A party
may always act upon reasonable appearances, and his guilt depends
upon the reasonableness of the appearances, judged of from his
own standpoint. |
