*1 654, C.A.9th; closing 2d United opening Sartain v. statements both the States, C.A.9th; 861-862, 859, jury 303 F.2d it was to the Government counsel Conley 141, States, v. United 257 F.2d witness- stated that certain Government 143, accomplices C.A.6th. their testi- and that es mony be caution. was to received with judgments affirmed jury opening statement stated, appellants was counsel for the regard gentlemen, in “Ladies and you suggestion Attorney’s testimony bear witnesses, close watch say amen.” can Although practice it is the better judge specifically charge

the trial testimony accomplice of an should received with care and caution closely scrutinized, and opinion we are of the ASHLEY and prejudicial that it was not error Lima, Appellants, present the District Judge, instructing generally al., Appellees. The STATE OF TEXAS et respect credibility with es, of witness No. 20457. specific to omit a reference to the testimony Appeals United States Court of accomplice of an when was Fifth Circuit. requested exception to do so. No 25, June taken to his 1963. and the fact that cer tain Rehearing July 30, witnesses Denied Government were accomplices, whose should be closely scrutinized, adequately brought jury by to the attention of the both the Government and the 30, defendants. Rule Federal Rules of Procedure; Criminal United States v. Finazzo, 175, 177, C.A.6th, F.2d Pittsburgh Plate Glass Co. v. United

States, 397, 402, 260 F.2d C.A.4th, af

firmed, 395, 360 U.S. 1237, 79 S.Ct. 3 L. 1323, rehearing denied, Ed.2d 361 U.S. 42, 855, 80 S.Ct. 4 L.Ed.2d 94. Audett States, 837, v. United 847, F.2d C.A. 9th, denied, 815, cert. 361 U.S. 80 S.Ct. 62, 54, rehearing denied, 4 L.Ed.2d 926, 290,

U.S. 80 S.Ct. 4 L.Ed.2d 241.

Young States, v. United 297 F.2d 593 C.A.9th;

594, Baking Continental Co. v. States,

United F.2d C.A.

6th; States, Caminetti v. United 242 U. 470, 495, 37 S.Ct.

S. 61 L.Ed. 442. opinion, justify

In our this is not a case

ing application 52(b), Rule Rules Pagliochini Procedure.

of Criminal States, U.S.App.D.C.

United 583; Mims v. United 254 F. *2 being his shot sued which resulted killed or the other one appellants. interposed, although engaged was- No defense of ad psychiatrist, Jr. a clinical Burch, trial. examine them expressed Dr. Burch Knight, opinion to Jack appellants, “It is Lloyd Tex., Houston, Douglas Woody, Clyde Ash neither Leslie W. Tex., Houston, ley Carolyn Lunsford, nor Lima are now or were at M. South alleged the time of commission of suffering psychiatric crime disorder Atty., H. Briscoe, Samuel Dist. Frank insanity in which could construed as be Atty., Hous- Jr., Robertson, Dist. Asst. legal They now sense the word. of appellees. ton, Tex., for commission were at the time of the Houston, amicus Hippard, J. James crime nature aware Houston of Greater behalf curiae and extent of the act.” Liberties Civil Chapter American The District Union. for Harris County followed policy his usual on the Judge, TUTTLE, Chief Before occasion of the commission of a serious DeVANE, Judge, and JONES, Circuit by calling crime regularly em- Judge. ployed County psychiatrist, Dr. appellants, and, examine the without the Judge. TUTTLE, Chief knowledge of counsel for en- appeal This is an from the denial gaged a Crowe, practic- Howard appellants’ peti- court of the the district ing psychiatrist, to examine both of the corpus based on their al- tion for habeas legations appellants. Dr. Crowe was assisted in trial and convic- that in their his examination Dr. Jack death, for murder and tion sentence psychologist. On March they denied constitutional had been report stating Sher made his written rights under the Fourteenth Amendment that both of them were “of sound mind.” Constitution. to the Federal May The trial commenced on 1961. days, being It finally lasted nine con- claim for a new trial in base May cluded on 24th. The found the seriously Court are Texas State dispute. appellants guilty, they were sen- were tried May tenced 25th, electrocuted. On of a real estate man in murder Dr. Crowe wrote a letter to Dis- killing Houston, they city whose ad- Attorney which, sig- because of its after, during, three-party mitted, or copied nificance, is in full: orgy in the office deceased. sexual Ashley Appellant was a homosexual and “May 25, 1961 (he frequently dressed transvestite “Mr. Frank Briscoe purpose at- clothes women’s “District Appellant Carolyn tracting men). Lima “Room 501 year prostitute, old who Building was a seventeen “Court and Jail Ashley. living Both of been “301 San Jacinto supported their earn- “Houston, had been them ings Texas prostitution. “Re: Leslie they of their asserted At the Carolyn defense self Ann defense and de- Lima claiming other, “Dear Briscoe: each fense “Dr. Jack Tracktir had become violent in and I his treat- evaluated deceased Carolyn struggle Douglas Ashley, male, Lima and a en- ment white course, This, comprehensive legal insanity. not a 1. definition of Howard See v. United Cir., years age, "and Ann Later on he testified as follows: Lima, years age, Harris “Q. Crowe, you report your County Jail, Houston, March Texas findings to [the Mr. Briscoe? they 1961.- felt We Attorney] *3 incompetent as we understand Yes, sir, “A. I talked to him about laws of referrable to this kind Texas I it and him told in a letter— problem. Again April 8, of Douglas I stated that I felt Douglas Ashley I evaluated Leslie Ashley incompetent, was alone, and and Ann Lima talking was sick and in with again they legally I felt incom- were Briscoe, Mr. I told him that I petent. felt man this you may “As I offered to recall Ashley needed treatment you, talk and to talk with wanted hospital and he sick and you, prior with about their this to schizophrenic, and I did that on trial, ultimately recent dis- and I * * * 3-22-61 and 4-8-61 day by telephone cussed this on the “Q. you you I believe said had a beginning trial. of their recent discussion Mr. Briscoe on my bill for services “Find attached at least two occasions? and Jack Tracktir’s a bill for Dr. got my findings “A. Mr. Briscoe services. professional opinion and yours, “Respectfully Ashley Mr. schizophrenic awas Crowe, M.D. “Howard G. incompetent and to understand “HGC:ds” about, what the trial would be' and I felt appellants, that he was Knight, chroni- counsel cally long ill nothing and had been Drs. for a examination knew time, and we discussed this and either and Tracktir Crowe opinion I period wrote him an about there- for a considerable trial or Douglas Ashley being incompe- subsequently learn- counsel after. Other tent.” doc- these two of the examination ed opinions appel- their and of Although tors this was in terms legally incompetent, where- were Ashley’s lants upon only, condition it is clear in view they on December moved quoted of Dr. Crowe’s letter above Ashley, judgment for a reported Ashley as to both and Lima they employed. alone had been for whom on the same dates before trial. inquiry that followed this motion foregoing touching All of the merely whether touched conclusions Drs. Crowe and Tracktir legally hearing, sane at the time of the incompe- eighteen approximately after months tent and that this was communi- longer and date the trial even after Attorney cated to the District were sub- the time of crime. On mitted petition trial court in the this Crowe testi- occasion corpus 29,1963, for habeas filed on March fied: together petition stay with a for a execution. schizophrenia “I felt he exhibited ’ giggling, paranoia etc., and Upon application, consideration of the chronic, I felt it was and I felt that hearing, without a but the trial court incompetent time, he was at that petition stay denied the and denied the my understanding was that he Thereupon, upon applica- of execution. legally incompetent in accordance Brown, tion made to Honorable John R. definition law—as I Court, stay a member of this of execu- understand it. I feel that he was pending tion was entered the final dis- insane, and made a record position of it appeal. of this case on this on 3-22-61 and on 4-8-61.” case thus comes to us with the unan- allegations During argument in the undisputed oral swered and corpus Court, petition of habeas asked writ the State was might question clearly whether raised the whether be conceded that beginning two the failure of the trial of the fact, appellants’ counsel the disclose him, known of the existence been informed Dr. Crowe that by specialists ions at arrived of himself legally incompetent, the accused the State favorable to were both plan the known for them this information had not been strategy conduct, conveyed of, and to counsel invali- acquiesced such a denial due as to Counsel in this statement *4 date the trial. the facts. Pyle 213, Kansas, 317 63 S. v. U.S. Moreover, here, rely on the we need not 177, Court, 214, Supreme Ct. L.Ed. 87 the legal principle purpose of that the having petition after stated the that allegations appeal the we take corpus “do(es) habeas filed that petition for the the as the writ true allegations imprison set forth that his right purpose testing of the trial the testimony, perjured ment resulted from deny a court to as without knowingly used the State authorities assuming basis for of the the correctness obtain conviction, to de the his underlying posed the con- that suppression by liberate those same au not stitutional because issue. This so him,” thorities evidence to State, opposi- did in its brief in favorable the (Emphasis added) said: grant

tion to the certiorari in the Su- preme allegations Court of the United sub- sufficiently “These stantially facts, counsel deprivation rights admit the but guar- candor, State, with Constitution, commendable anteed the Federal during open and, conceded court the proven, petition- would entitle argument of this case. present er to release from his cus- tody.” Citing Mooney Holohan, v. In the filed brief on behalf of the State 103, 340, U.S. 55 S.Ct. L.Ed. Supreme Court, of Texas in the the fol- lowing language is found: thereupon The Court remanded the case “ * * * County the Harris Dis- Supreme the Court of to as- Kansas Attorney requested Benja- allegations. certain the truth of “these” Psy- County min the Harris Texas, In Alcorta v. 355 U.S. 78 S. chiatrist, psy- Crow, Dr. Howard petitioner Ct. 2 L.Ed.2d the had chiatrist, and Dr. Jack been tried and convicted for murder psychologist, peti- examine both degree the first and sentenced to death. each tioners and did make such ex- wife, His defense was that his he whom * * * * * amination Dr. Sher killed, caught by had was him reported petitioners both sane. compromising friend in a situation and reported petitioner Crow that he had killed her under the influence hospital, ‘needed treatment in a passion arising of “sudden from an ade- schizophrenic’. he sick and was quate which, cause” if established aas get ‘was able to killing would have reduced the (Ashley) psychotic’. malice, punishable by murder without “The of Drs. years Crow a maximum sentence of five im- Tracktir were made known prisonment. prose- Before Attorney prior to the trial cutor had been told the friend that he case, but the District improper had had relations with petitioners deceased, inform nor not but he was cautioned petitioners prosecutor questions answer all honest- ion ly, of each doctor.” but not to volunteer such informa- report the trial touched officer had

tion. who made a investigation lightly subject; the witness rather to the effect ac- cused, degree testify falsely, and he was later mur- did not convicted of first categorically der, liquor, had called to answer smelled liquor illicit relations was under whether he the influence context, quarrelsome degree; wife. In this deceased that his shirt and torn; Supreme per- clothes were Court said: and that he was spiring up.” police and “mussed A officer general principles laid “Under who arrested the accused testified that Mooney down Holohan, this Court appear he was sober and he did not S.Ct. [55 U.S. to have been no drunk. The defense had Kansas, 791], Pyle L.Ed. report ar- made 177, L.Ed. 317 U.S. 213 S.Ct. [63 resting officerwhich favorable to the 214], petitioner not accorded defense. At the session at close of the due ously of law. It cannot seri- testified, prose- which another officer Castilleja’s disputed open cutor stated in court: gave testimony, vdiole, taken as a impression the relationship the false “At this time I call a can few *5 petitioner’s wife police officerswho would corroborate nothing casual was friendship. more than that of already what has been testified to. testimony merely why I see no reason we should prosecutor elicited who knew prolong testimony when the now of the illicit intercourse between witnesses are not here.” Castilleja petitioner’s Un- wife. While it is true that there were other doubtedly Castilleja’s testimony was witnesses who would have corroborated seriously prejudicial petitioner. testified, the officer who had is also it squarely It tended to refute his claim called, policeman, true that the one if adequate that he had for a cause favorably would have testified to the de- surge passion’ of ‘sudden in thereupon fense. The Court held that Castilleja’s killed his wife. If rela- the evidence the witness favorable to tionship petitioner’s wife the defense evidence “was substantial truthfully portrayed been jury, been, was, which should have but never have, apart it from im- would jury (the only submitted to the tribunal peaching credibility, tended to pass upon it) entitled to in connection petitioner’s corroborate contention with what the Court as that he had found his wife embrac- Thomp- the effect of the drunkenness of ing Castilleja. petitioner’s de- ” If * * * fully son We ourselves find accepted by jury, fense had been Judge in accord with the statement might well have been if as it tilleja Cas- concurring opinion Hastie in the Dye testify been allowedto many likely case: “It seems falsely, prosecu- situations will arise which a prosecutor, his offense would have fairly keep tor can edge to himself his knowl- been reduced to ‘murder without testimony of available which he precluding penalty malice’ the death or views as mistaken false. But there imposed upon now him.” prose- a other circumstances which must, certainly suppres Two cases in which the mere cutor or should know prosecutor testimony honestly sion of evidence even has which he holding type as a served basis a a or from a source disbelieves probability denial of due occurred are United in all which very would make it Dye, Cir., persuasive jury. States to a fair minded Rutkin, notably testimony Cir., po- United States F. This is true of of a Dye officer, certainly prosecution 641. In 2d case lice and most an ar- put stand, resting officer, failed to on the witness al favorable to a contention though subpoenaed, trial, person.” police- to of the accused finding Leslie had made a con- us the State case before In the testimony mind and unsound most the that at tends insane, contemplated by the criminal psychiatrist from the would be available then, Texas, laws of the State of psychologist course, I further would have enlisted evi- in the nature would be psychiatric far assistance in the case dence, has no court thus and that sought of Dr. prosecution have had failure held that the though fa- Crowe Dr. Tracktir adduced opinion, an even to disclose insanity depriva- on a defense of as to said works to the vorable Douglas Ashley2 rights. The vice of constitutional tion trial, trial, argument main or as issues in the not the na- main it is of this is that weight an and either event would have all accorded to or the to be ture opinion, plead insanity likelihood as of the time that such an but the fact the offense and as formed such an obvi- commission of ion had been ously objective of the time of the as one witness prosecution the main and would not have in make the examina- Douglas Ashley very respect much troduced Leslie as a wit it tion. falls Dye case, joint concept ness his own behalf trial of within the where testimony, police the two defendants.” officer whose elicited, helpful to the would have been conclude We that without such ex- defendant. pression from the trial counsel that the opinions of Drs. Crowe and prosecuting have no We doubt defendants, favorable to the officer, ap- the trial of these two significance is of such vital to the ac- conscientiously pellants, believed *6 persons planning cused ing in and conduct- However, legally competent. both to be their the failure of the Dis- stretching credulity ut- it is our inform their counsel he most to ask us to believe that when to such of this amounts fundamental he received word from Dr. Crowe that unfairness in the trial of a criminal case both and Dr. Tracktir both considered process. as to amount to a denial of due appellants incompetent, great, possibly de- not aware cisive, the and judgment the trial court in de- significance of such a fact nying application for the writ of habeas known to the accused. corpus is, therefore, reversed and the remanded case is to the trial court with The Court does not need to refer to writ, issue the and dis- directions to by way the statement affidavit sub- an without, course, prisoners, the sequently by Knight, made trial way any precluding trial in new the appreciate counsel for the of Texas. State materiality of this undisclosed fact. stay This affidavit that when of execution heretofore en- is to the effect Judge County Psy- Sher, he learned that Brown is continued until tered disposition County, chiatrist of a final Harris informed matter in the expressed opin- Dr. Burch District of that Sher Texas. Southern mentally compe- ion defendants were and remanded. Reversed tent to stand led me to the “this psychiatrist conclusion that no other Judge DeVANE, (dissent- District any kind had the defendants examined ing). them, request or either of at the Attorney’s office, District I to concur in the able and had been I am unable Judge TUTTLE this informed Dr. Crowe and Dr. Tracktir of Chief case. ion by Ashley brought Knight proceedings alone It is to be noted men- that while only, clearly Lima would have reference to tioned due this given irrelevant. fact that it was connection been represented appellants this I were record am These confident Mr* Knight sought very Knight, able criminal Jack Attor- ney lawyer reports case The record information as of Texas. of Doc- tors Tracktir, discloses that he would' following fully County, Texas, have his us- been Harris advised with reference- to them. policy the commis- ual occasion of was- us brought reg- crime, of a called counsel and sion serious not Mr*. Knight. ularly county employed psychiatrist Dr. appellants Sher to examine For these reasons dissent this: addition in case he case. Crowe, practicing psychiatrist, Howard Rehearing denied; VANE, J.„ DE Dr. Crowe to examine the engaged dissenting psycholo- Dr. Jack gist, to assist him in his examination course, could not Of these physicians have been examined these Knight, Jack without the opinion counsel, this in their Knight engage a crim- led

what Mr. Burch, psychiatrist, Dr. examine

inal expressed to trial. Burch SITE OIL COMPANY MISSOURI, OF Knight Company Michigan, Inc., in the lan- to Jack Site Oil Vaughn, Petitioners, William guage the main set out in concluded by him and at the time examined at the NATIONAL LABOR RELATIONS BOARD, Respondent. of the commission of extent of crime aware of nature and No. 17130. acts. United States Court Appeals Faced with his report, own doctor’s Eighth Circuit. Knight try *7 saw fit to this case with- June asserting incapacity out the mental claiming .appellants, the defense other, self-defense and defense of each

claiming that the deceased had become violent his treatment of Lima struggle ensued, and a which resulted in being shot and killed one or the unwilling judg- am to substitute Knight

ment that of Mr. at the time unwilling

he tried these cases and I am Knight

to assume on this record that Mr.

was unaware of the examination of these Doctors placed Tracktir before

on trial. not a case where the District guilty misconduct refusing Knight to make known Mr.

information he had with reference to the

sanity of these and based on