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As Long as We Remember...

April 20, 2007

Frontier Justice Lingers On

Edward Lulie III

Once in Texas if you stole a man's horse you could get hanged for it; and then, too, if you stole a man's wife you could get shot. Oddly enough things haven't changed all that much over the years; Texas is still clearly a state where marriage is treated very seriously. Compare that to Maryland where adultery, as a crime, is punishable by a fine of $10.

Law tends to change as society does. What is permissible one generation is illegal the next. Laws can indeed be bizarre. Consider that in colonial days attempted suicide was punishable by death. I'm not certain what logic was used to reach that legal principle; a belief in the sanctity of life perhaps? Then, as now, legal matters are not always logical.

For one extreme example let us consider what I learned 30 years ago in law school about the great state of Texas and a crime of passion.

In the 1970s Texas was still a rollicking legal frontier where some legal issues were out of step with what was considered normal in the rest of the country. Texas law treated an aggrieved husband's right to take action against an adulterous spouse and boyfriend differently than most states, a lot differently.

The issue involves a "heat of passion" crime and the idea that a husband should not be subject to the same penalty as someone who murdered in "cold blood" and with premeditation. Thus, if a husband found his wife engaged in sexual relations and then acted violently, he should not be treated as a normal criminal because the conditions (heat of passion) tended to excuse the crime.

Many states then, and some may still, charge a husband who killed his spouse and or her lover with a less grave offense, like manslaughter rather than murder. The Lone Star State was an exception to the rule; they considered it not to be a crime. In Texas it was "justifiable" homicide. A 1932 case where the wife found her husband with another woman and shot him was decided by the Texas Supreme Court. She had not been given the same rights as a man; she was treated as a criminal.

That's not fair! She complained in an appeal, and lost.

This still fails to convey the full extent of Texan sentiment on the subject. The essence of the excuse was that passion overcame judgment in the heat of the moment, in an understandable fashion. But for a while in Texas "the heat of the moment" had an odd time exception.

There was no requirement that the husband act immediately. For example take Joe, an otherwise law abiding banker (I know, bad example, right?) who comes home after a long day of foreclosing mortgages and discovers his wife Sally passionately entwined with neighbor Bill on the kitchen floor. Well, hmmm, Joe thinks, just look at that.

So Joe quietly leaves and heads to his neighborhood bar. He consoles himself with a few alcoholic beverages and later drives back angry and intoxicated only to pass out in the living room without saying a word to Sally.

The next day, after his hangover clears up, he goes out and signs up for an intensive month-long course of firearms training. After a week he decides upon a rifle to buy and orders it by mail. He buys the ammo and spends the rest of the month reading and brushing up on his knowledge of Texan Criminal Law.

Not once does he tell Sally that he knows about her affair with Bill. After he is duly qualified to shoot a firearm, his rifle arrives. He calmly loads it, shoots his wife and then strolls next door and shoots Bill. All this happens a month after he discovered the adultery.

To me it couldn't be a clearer case of premeditated murder, but back then (or so it was argued even in the 1970s) that in Texas this was still covered by the "justifiable homicide" theory.

In a much more recent Texas case (within the last two years) a wife told a husband that the man he discovered fleeing the scene was a rapist; she lied. In fact it was her boyfriend.

When the husband shot the fleeing lover, the police considered the situation carefully and did not charge the husband with any crime in killing his wife's boyfriend. Their logic was that he believed that he was killing a fleeing felon (apparently legal to do so) and had committed no crime.

However the wife should have known that lying to her husband and saying the boyfriend was a rapist might get him shot; so the police charged her with manslaughter.

Adultery in Texas apparently continues to be a very risky enterprise even to the present day. Here in Maryland adultery isn't generally prosecuted as a crime. Legend has it that the last case that was prosecuted saw the offender convicted and given a stiff $10 fine along with a warm handshake from the Judge (under MD Code Criminal Law Article sec. 10-501 the act is punishable as a misdemeanor with a maximum fine of $10).

We do still treat stealing livestock in Maryland as a serious offense; but stealing a spouse is a less grievous offense than getting a speeding ticket. And, considering that the number of divorces is rising at an astronomical rate, maybe we might rethink the whole $10 fine thing.

However, after considerable thought, I think that imposing death as a penalty is perhaps a bit extreme. We should save that penalty for the most extreme cases, like when a politician is caught lying. <2/46> ^

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