Emma Oliver was sentenced to death in San Antonio for the murder of Herman Cohn, a man of about 40 who was killed in a quarrel over three dollars. It was her second murder conviction. The Texas Court of Criminal Appeals, the state's highest court for criminal cases, upheld the verdict in December 1950 and refused a rehearing in February 1951. Four months later, on June 29, 1951, Governor Allan Shivers commuted the sentence to life in prison.
Her case is remembered less for the killing than for its ending. In 1997 the writer Gregory Curtis, examining in Texas Monthly why Texas had been so reluctant to execute women, used Oliver as his clearest example. Nothing in her record, he wrote, seemed likely to save her. He concluded that her gender did.
Little is known of Oliver's early life. Her date and place of birth, her family and her schooling are not on record, and the appeals court's opinion does not state her age at the time of the Cohn case.
What was reported is her criminal record. Curtis, drawing on The Rope, the Chair, and the Needle, an academic study of capital punishment in Texas from 1923 to 1990, described a long history of arrests: vagrancy, prostitution, four arrests for murder and seven for aggravated assault. She was convicted of murder in 1947, he wrote, and was later released. The person killed in that case, the court that heard it and the sentence she served are not on record, and how the other murder arrests ended has not been reported.
Together with the conviction for Herman Cohn's death, the 1947 conviction gives her two murder convictions in separate cases. No convictions are recorded for the other murder arrests, and none of them is a killing she was found to have committed.
The fullest account of the second case comes from the appeals court's opinion, which summarized the testimony given at trial. The opinion describes Herman Cohn as a well-developed, well-nourished Black man of about 40. It does not give his occupation or his home town.
The killing took place in San Antonio, late at night. The state's main witness, a woman who was present, testified that Oliver had demanded three dollars from Cohn and stabbed him when he said he did not have it all. A doctor testified that the wound caused his death. The witness also testified that Oliver afterward told her not to talk about what she had seen, and the appeals court would later treat that conduct as part of the evidence that Oliver had acted with malice.
The police were called shortly after midnight. When the officers arrived, Oliver came up to them and said, "Here I am ... I killed him."
Texas Monthly placed the death sentence in 1949 and also described the killing as a dispute over three dollars. The exact date of the killing does not appear in the opinion.
Oliver was tried in San Antonio for murder with malice. She did not testify. Her lawyers were Sam L. Harrison and Theo P. Henley of San Antonio. The jury found her guilty and the death penalty was assessed. The appeals court later described the punishment as a matter within the jury's province.
Two parts of the trial became grounds of appeal. The first concerned race and the selection of the jury. Her lawyers complained that no Black person had served on the jury commission or on the grand jury. The second concerned the closing argument. The district attorney told the jury that "the colored man in the recent war" had fought alongside white soldiers. Some members of the audience in the courtroom, who were largely Black, responded with "Amen, Amen." The defense moved for a mistrial. The trial judge refused it, told the jurors to decide the case only on the evidence and the court's charge, and warned the audience against any further demonstration.
The Texas Court of Criminal Appeals decided Oliver v. State on December 13, 1950, in an opinion by Commissioner Woodley. The State was represented by George P. Blackburn, the State's Attorney. The case is reported at 236 S.W.2d 143.
The court found the evidence sufficient. Malice, it said, is a state of mind that a jury may infer from the circumstances, and the statements and conduct attributed to Oliver after the stabbing were themselves evidence that she had acted with malice.
On the jury question, the court held that it could not consider the complaint as presented. The record of the hearing on the motion for a new trial was set out in question-and-answer form and had not been approved by the trial judge. The court added that it knew of no decision holding that discrimination was proved merely by showing that no Black person had served, and it noted that the bill of exception did not even state the defendant's race or show that she had been harmed.
On the closing argument, the court found no reversible error, pointing to the trial judge's instruction to the jury and his warning to the audience. Three further complaints were rejected because no evidence supported them. The judgment was affirmed.
Her lawyers asked for a rehearing. In an opinion by Judge Beauchamp, the court again found the evidence of malice sufficient, declined to change what it had said about malice in an earlier case, Harvey v. State, looked again at two of the bills of exception, and kept to its first decision. The motion for rehearing was overruled on February 14, 1951.
With the appeal over, the sentence stood. On June 29, 1951, Governor Allan Shivers commuted it to life imprisonment. The Texas Department of Criminal Justice lists her as inmate 340 among the death sentences commuted between 1923 and 1973.
The governor's stated reason was short. According to Texas Monthly, his statement said only that letters and petitions signed by numerous citizens of Bexar County, asking for a commutation of the death sentence, were on file.
Curtis read more into it. Shivers, he wrote, was hardly a liberal, and the record left little room for mercy: a long arrest history, an earlier murder conviction, and a killing over a few dollars. Curtis argued that what spared her was the fact that she was a woman. He set the case against a longer pattern: from the late nineteenth century until modern times, he wrote, Texas governors had commuted about 20 percent of death sentences, including every one set for a woman, and no woman had been executed in Texas since 1863.
The state had moved executions to Huntsville after it authorized the electric chair in 1923, and the first electrocution took place on February 8, 1924, according to the Texas Department of Criminal Justice. From 1928 to 1952, the department says, death row was in the East Building of the Huntsville Unit.
Several parts of her life remain open. Her birth date, her years in prison after the commutation, and the date and place of her death are not on record.
The earlier killing is thinly documented. Texas Monthly reported a murder conviction in 1947 but did not name the victim, the court or the sentence, and it said only that she was later released. By the magazine's count, her record held four arrests for murder; it did not say which cases they were or how each of them ended.
The dates of the Cohn case are also uncertain. Texas Monthly put the death sentence in 1949, while the appeals court decided the case in December 1950; the opinion itself does not give the date of the killing or of the trial.
1923: Texas authorizes the electric chair; executions move to Huntsville.
February 8, 1924: first execution by electrocution in Texas.
1928 to 1952: Texas death row is in the East Building of the Huntsville Unit.
1947: Oliver is convicted of murder, according to Texas Monthly, and is later released.
1949: she is sentenced to death for the murder with malice of Herman Cohn, about 40, killed in San Antonio in a dispute over three dollars (year as reported by Texas Monthly).
December 13, 1950: the Texas Court of Criminal Appeals affirms the conviction and death sentence in Oliver v. State.
February 14, 1951: the court overrules her motion for rehearing.
June 29, 1951: Governor Allan Shivers commutes the sentence to life imprisonment.
October 1997: Texas Monthly cites her case as evidence of the state's reluctance to execute women.