Oliver v. State, 24984

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

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.

[155 Tex.Crim. 462]

Page 144

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.

[155 Tex.Crim. 463] 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

Page 145

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 [155 Tex.Crim....