Oliver v. State, 24984

• Citation: 236 S.W.2d 143,155 Tex.Crim. 461
• Decision Date: 13 December 1950
• Docket Number: No. 24984,24984
• Parties: OLIVER v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 143

236 S.W.2d 143

155 Tex.Crim. 461

OLIVER v. STATE.

No. 24984.

Court of Criminal Appeals of Texas.

Dec. 13, 1950.

Rehearing Denied Feb. 14, 1951.

Sam L. Harrison, Theo. P. Henley, San Antonio, for appellant

George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Commissioner.

Emma Oliver was convicted and assessed the death penalty for the murder with malice of Herman Cohn by cutting and stabbing him with a knife.

Shortly after midnight two police officers in response to a call went to a two story building in the 2300 block of East Commerce Street in the City of San Antonio. The building consisted of some ten apartments, three of which were on the ground floor, and the officers were looking for a dead body.

The officers looked through the upstairs apartments, and upon coming downstairs they met appellant. They went into one of the downstairs apartments, but did not enter another where a light was seen because appellant told them that the light they saw was in the same room they had previously entered.

They returned to headquarters without finding the corpse, but returned shortly in response to a second call. On this occasion they found in the room of the building where the light had been seen, the dead body of the deceased, described as 'a well developed and well nourished colored male about 40 years of age.'

There was found on the body a penetrating wound in the left chest which penetrated the pericardium (the sack that contains the heart). The wound was, in the opinion of the county health officer, such a wound as could have been caused by the knife which was taken from appellant.

And the doctor testified that the wound caused the death of the deceased.

Millard O'Conner was at the house when the officers returned, and showed them where the body was. He testified that he discovered the body when he went to appellant's room to await her return.

After discovery of the body, Officer Fest went to a place across the street and found appellant standing there. That appellant said: 'Here I am * * * I killed him.' That he took from her a knife which was identified and offered in evidence, and which knife was described as a deadly weapon by witnesses.

The body of the deceased was lying on the floor. No knife or weapon was found there. In deceased's pockets were found only a pocket book with 51 cents in money, and a check payable to the L & M Lumber Company for $510, signed by Mr. T. E. Barnes of the Austin or East End Lumber Company.

The bed in the room where the body was found was disarranged and had the appearance of having been occupied.

A red truck with a long bed and trailer was parked a few doors from the house, and officers had made inquiry of appellant and others about it.

Mary Williams testified as an eye witness to the killing. She said that appellant called her and told her to stay with 'the man who was locking the truck up.' She said that the man came into the room where appellant was living, and that she talked to him while appellant left for a time, presumably to make a telephone call.

She further testified that when appellant returned, the deceased was lying on appellant's bed and that she, the witness, was sitting on a box by the dresser. Appellant remarked that 'the cab will be here in a few minutes,' and demanded that the deceased pay her $3.00. When deceased failed to comply with such demand she repeatedly demanded that he pay her $3.00, he either ignoring the demand, agreeing to pay her when the cab arrived, or saying that he did not have $3.00, and finally giving her $1.00.

She then repeatedly demanded an additional $2.00.

The witness described the actual killing and the events thereafter as follows:

'She said 'give me two more dollars' and he said he did not have two more dollars. Emma Oliver grabbed Herman Cohn by the shirt with her left hand and she reached in her hip pocket like that and she stuck him with the open knife. In a minute or two I heard something running like water from a hydrant and I looked and I could see blood running from his chest down to his britches and he grabbed his stomach, and he didn't say anything and then he walked to the dresser and laid his head on the dresser and he said 'Oh Lord, Oh Lord.' Then Emma Oliver looked at him for a minute and she raised his head off the dresser and said, 'Don't die on my dresser m___r f___r' and he fell off the box to the floor and she started out the door and I started out the door with her and she pushed me back and said, 'I will kill you too' and told me I had better stay there and I went back in. She left and came back and went in the room and said 'Let's go' and we left and went to a beer tavern where she bought me and her a bottle of beer.'

'She told me not to say anything about it. She said 'You had better not say anything about it, or I will kill you' and I said I would not say anything about it.'

'Later on that night she said she would put him in the truck and drive down the road. She said I know that you can drive and I am going to put him in the truck and take him down the road. I told her I would take the truck. That was discussed outside the room at 2320 East Commerce Street. The stabbing I have described occurred in that room.

'After the stabbing we went to the Harlan Inn and stayed there about an hour or so drinking beer and playing music.

'At the time of the stabbing Emma Oliver appeared to me to be sober and in her right mind.

'At the time of the stabbing there was no one present but Emma Oliver, Herman Cohn and I.'

Appellant did not testify.

The facts are sufficient to support the conviction for murder with malice, and the punishment was within the province of the jury. We overrule appellant's contention that no malice is shown. The statements and conduct attributed to appellant after she stabbed the deceased is in itself evidence...