Purcell v. State

MORRISON, Presiding Judge

(dissenting.

After more careful study, I find that I cannot agree to the affirmance of this death penalty conviction and will state my reasons.

The homicide occurred during the early morning hours of March 4. The appellant, *277 a 61 year old widower whose father had died in a State hospital for the insane and who lived alone with the aged mother of his deceased wife, was indicted later in the same day for murder growing out of her death and was forced to trial, over a motion for continuance, on March 18, which was eleven days after attorneys had been employed to defend him. The sole defense was that of insanity. The principal ground for continuance was the inability of counsel for the accused, in spite of the exercise of due diligence, to secure, during the short period of time following indictment, certain records which were stored at the Air Reserve Records Center at Denver, Colorado, which he alleged would have supported his claim as to his mental condition during his recent service in the Air Force. On the last day of the trial, but after verdict, a telegram was sent to the trial judge from the office of the Secretary of the Air Force stating that' the medical records would be made available. The records, which were presented at the hearing on the motion, indicate that a few years prior to the homicide the accused had been discharged from the Air Force, among other reasons, because of “mental deterioration.”

The seriousness of the absence of this medical testimony is punctuated by the argument of the State’s counsel as follows:

“As late as 195S, this defendant was a major in the armed forces of this country. As you have heard testimony from the stand, the armed forces have a psychiatrist there at all times. If this man was crazy as late as 1955, a major, not just ordinary run where he might not he noticed, wouldn’t his insanity, if he had any, then be noticed? Wouldn’t something have been done about it?”

While not reversible error within itself, let us analyze this argument in its proper setting. A motion for continuance had been filed for the accused because of the inability of his counsel to secure in time for trial his military records which he alleged would show his mental condition during such service. They were clearly admissible. Dowling v. State, Tex.Cr.App., 301 S.W.2d 920 . This fact was known to the prosecution, by the filing of the motion, but not necessarily by the jury. Then, in his argument to the jury, the prosecutor tells the jury that, if the accused had shown any indication of insanity while in the service, there would be military records to evidence such fact and the accused would have produced such records before the jury and, since he had failed to do it, it was infer-able that no such records existed, when in fact the prosecution might reasonably have assumed at the time of the trial, and the trial court knew at the time of the hearing of the motion, that such records did exist.

In this connection, it should be noted that when appellant’s attorneys secured his military medical record they learned for the first time that Dr. John W. Fisher of Dallas had been a member of the Medical Board in the Air Force which had ordered the appellant released from service and Dr. Fisher testified at the hearing on the motion for new trial. I have concluded that his testimony would have been beneficial to the accused if it had been available at the trial. I should further call attention to the fact that the appellant, his attorneys and relatives did not know the names of the members of the Medical Board nor the nature of the report which they made to the Air Force which brought about his discharge prior to the receipt of appellant’s military record from the Air Force Center after the termination of the trial.

In addition to the above, I call attention to the following: Dr. David Wade, the State’s sole psychiatrist, testified on the trial and expressed the opinion that the accused knew the difference between right and wrong and was legally sane. On the motion for new trial, Dr. Wade testified that during his examination of the accused on the day of the homicide he found that the appellant suffered from a paranoid condition which demonstrated itself in mandatory delusions producing homicidal tend *278 encies, that he had so informed the prosecution in his written report to them, but that at the trial he was not asked and did not volunteer such information.

We are always, as here, concerned with the question of diligence in behalf of. the accused, but in the case at bar the accused was forced to trial within 14 days after the homicide and 11 days after counsel had been secured to represent him in a case in which the State and the court were informed that the defense of insanity would be interposed. In such a case, I would not require those in charge of his defense to familiarize themselves to the same extent as I would in a case in which an accused had a reasonable time to prepare for trial. Pappas v. State, 127 Tex.Cr.R. 570 , 78 S.W.2d 619 . The prosecution and the trial courts should remember in the trial of criminal cases such as the one at bar the “speedy trial” guaranteed by the Constitution, Art. 1, § 10 does not mean that it shall be conducted like a fire truck on which the motor begins to turn when the offense is committed and is kept running at top speed until the jury verdict is received. All court dockets should be kept current, but deliberateness is the watchword of the judicial processes in a democracy, and every accused should have a reasonable time in which to prepare for trial. The nature of the possible defenses should determine what is a reasonable time.

I respectfully dissent.