1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

3.6.  The Paramour Statute

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.


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.