# Purcell v. State

> Court of Criminal Appeals of Texas · March 25, 1959 · 167 Tex. Crim. 565

URL: https://www.frixlaw.com/law-library/cases/9655283

## Case

- **Full name:** Clark R. PURCELL, Appellant, v. STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 25, 1959
- **Citations:** 167 Tex. Crim. 565; 322 S.W.2d 268; 1959 Tex. Crim. App. LEXIS 1905
- **Precedential status:** Published
- **Opinion:** On rehearing by Davidson
- **Judges:** Belcher, Woodley, Morrison, Davidson
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9655283

## Opinion text

On Appellant’s Second Motion for Rehearing
DAVIDSON, Judge.
My brethren have divergent views as to the disposition that should be made of this case. One is convinced that the case should be affirmed. The other is convinced that it should be reversed.
Thus my conclusion determines the case. By my vote I either affirm the conviction that sends this appellant to his death in the electric chair or I give him another trial. Such is a tremendous responsibility.
I was fully aware of the responsibility to be vested in me when I asked for and was elected to the high office of a judge of this court. I have no inclination or desire to shirk that responsibility or to fail to do my duty as a judge. My only concern is that the conclusion I reach be right and that it be in keeping with the due administration of the law and the preservation and protection of life and liberty, as guaranteed by Art. 1, Sec. 19, of our State Constitution, Vernon’s Ann.St.
I agreed to the conclusion expressed in the original opinion in this case, and also to that of my brother WOODLEY upon motion for rehearing, that reversible error was not reflected in the trial of this case.
I recognized then, and recognize now, that there was much force in the reasoning of my brother MORRISON as expressed in his dissenting opinion.
As I have approached and now approach a conclusion in the case there was and is constantly before me the thought that this man was tried rather hurriedly in an atmosphere necessarily made hostile by reason of the brutal murder.
The defense of insanity was the sole defense.
I know that such defense required time and much investigation to prepare for a. proper presentation.
There were facts material to that defense which could have been secured and would have been given the jury but for the hurried trial. Those facts were before the court on the hearing of the motion for new trial.
I am unwilling to place this entire blame upon appellant’s counsel for failing to have that proof upon the trial. Certainly the-blame can not be laid at the feet of the appellant, himself.
*279 A motion for continuance was sought, though not based specifically upon the absence of the above testimony.
I can not lose sight of the fact that upon the trial of the case Dr. Wade, the psychiatrist upon whose testimony the state relied strongly to defeat the plea of insanity, was in possession of additional information and would have testified thereto had he been interrogated thereon and would have expressed an opinion favorable to the appellant’s plea of insanity.
Who is to be blamed for not asking the doctor relative to the testimony he could have given, upon interrogation, is not the question. That the doctor did not so testify should not be wholly charged to the appellant or his counsel.
Though the doctor could have given such testimony and the representatives of the state knew of such absent testimony, it was not developed, or proffered either by him or the state.
I do not charge, or find, that there was any wilful or deliberate intention on the part of either Dr. Wade or the prosecuting attorney to withhold material testimony. To the appellant, the effect was the same, however, as if they had so intended. Appellant did not have the benefit of that testimony before the jury.
No one knows whether a different result will be reached upon another trial, with the absent testimony before another jury. Were this case affirmed, obviously there would not.be another trial.
I have concluded that the ends of justice will best be served and maintained by according to the appellant another trial.
A conclusion for similar reasons was reached by this court in Calhoun v. State, 85 Tex.Cr.R. 496 , 214 S.W. 335 .
Under this record, I can not by my vote send this man to his death in the electric chair.
I agree with my brother MORRISON, Presiding Judge, that the conviction should be reversed.
Accordingly, the judgment of affirmance is set aside, appellant’s motion for rehearing is granted, and the judgment of the trial court is now reversed and the cause is remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9655283. Public record. Not legal advice.