Gibson v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

Appellant’s attorney, in oral argument before us, stresses the fact of the introduction of two pictures of the deceased’s body, claiming the same to have been inflammatory and probably causing the jury to render a verdict of death. He lays down the recognized doctrine relative to the presence before the jury *586 of bloody clothing and such admissibility in evidence, such being “only when the introduction serves to illustrate some point or solve some question, or serves to throw light upon the matter connected with the proper solution of the case, and under no other circumstances; but whenever the introduction of such clothing would, in the light of the whole case, aid the jury in arriving at the very truth of the matter, the court should not hesitate to admit its production and exhibition.” Branch’s Ann. Tex. P. C., p. 1031, sec. 1855.

It is a further recognized doctrine that if the presence of such in evidence would thus aid the jury, the gruesomeness of the proffered article should not prohibit its introduction. See 18 Tex. Jur. p. 339, sec. 209; Trigg v. State, 99 Tex. Cr. R. 376 , 269 S. W. 782 .

In the case of Young v. State, 49 Tex. Cr. R. 207 , 92 S. W. 841 , a death penalty, the accused was charged with causing the death of a 16-year-old girl “by beating, bruising and wounding her with a blacksnake whip and stick and a hoe, and a hoe-handle, and a rock and a plank and a board and a rope, and by kicking her with his foot and by stamping her with his foot, and by choking her with his hands.” A photograph of this bruised and beaten body was offered, and we there held:

“Bill number 13 shows that appellant objected to the introduction by the State of the photographs taken of deceased after her death. The grounds of objection being that the pictures were not true representations of the girls, and were not taken until after certain operations had been performed upon her by the attending physicians. These objections are not certified by the court as facts. If the pictures were true representations, or measurably true representations of the condition of the body of deceased after death, we know of no rule of law that would exclude their admission as testimony. If they were not true or measurably true representations at least, they should not have been introduced; but in the shape the bill is presented to us, there is nothing therein showing that the same were not correct photographs, except appellant’s objections. The grounds of objection are not certificates of the judge that such were facts.”

In the present case, the objection to the two pictures of the deceased boy reads as follows:

“The introduction in evidence of the said photographs was objected to by the defendant at the time they were offered in *587 evidence, upon the following grounds, to wit: No proper predicate had been laid to introduce the photographs in evidence, since their authenticity had not been properly shown and established; the witness Bruton, called by the State to identify and to vouch for the authenticity of the photographs, said that he did not take the photographs, that he did not develop the photographs from their negatives, and he did not say that he was present when they were developed and printed by the photographer who was alleged to have made the photographs. The photographer alleged to have taken the photographs should be called to the stand to identify and vouch for the authenticity of the photographs.”

It will thus be noted that the objection went only to a verification of the fact that the photographs correctly portrayed the matter which they were supposed to reflect. This objection was fully met by the testimony of J. B. Bruton, county juvenile officer, who was present when the pictures were taken, who superintended such taking, and certified to their correct reflection of the condition of the deceased’s body.

Appellant entered a plea of not guilty to a charge of murder with malice, and in a written statement he claimed that on account of his excessive drinking of intoxicating liquor, he had no recollection of the matter other than that he found himself in this house asking for whisky; that he did not remember if he searched the house, or obtained this knife there, or that he stabbed the boy to death. He did remember the chief of police coming into the house and his subsequent capture.

In his testimony upon the witness stand, appellant details his different movements on the night of the homicide, his different purchases and drinking of liquors, but does not remember anything relative to going into this house and the killing of this boy. In one sentence he denies killing this boy, and immediately thereafter he asks his questioner: “How do I know whether I stabbed him or not since I say I don’t remember? * * * But one thing I said, “If I am found guilty of these things, I wish to suffer the punishment.” We quote him as follows:

“Well, a fellow that has committed a crime has a bad conscience. What I mean by that, you know, he all the time can’t be still; at night when he lays down he can’t sleep for dreaming bad things, and all such as that. I feel I did not commit that crime, and the reason I feel I didn’t commit it is because I don’t have any guilty conscience. I previously testified I do *588 not have a criminal record. This is the first time I have been in court for a crime like this. I still feel that if I actually committed this crime I ought to be punished for it.”

Again, on cross-examination, he testified:

“With reference to my excuse to this jury being that I just don’t remember what happened over there and don’t know whether I killed this boy or not, I am not excusing myself; no, under that knowledge, but to the best of my memory I can gather I didn’t kill him. What I am talking about is, the reason I say I didn’t kill him is because my conscience doesn’t hurt me. A fellow that has murdered some one hasn’t got any peace but a fellow with a clean conscience, knowing he hasn’t done anything, can sleep and not be bothered, and I tell the jury my conscience is clean and I can sleep.”

Under this testimony and appellant’s plea of not guilty and the indictment herein, it was necessary that the jury not only should be enlightened upon the actual killing, but also upon the question of malice; and the manner of the commission of the offense oftentimes has great weight in determining the existence or non-existence of malice; the ferocity of an assault oftentimes has weight in such determination. The attending physician described the wounds upon the boy’s body, speaking evidently from the photographs, as eight or ten wounds entering from the back, and one or two thereof ranging completely through the body, and the evident death of the deceased was caused by a massive loss of blood from these wounds. The pictures evidenced the fact of nine or ten wounds in an area of but a few inches, all but one being on the left side of the back near the shoulder blade, each having a separate point of entry and reflecting a separate stroke, and all together causing a massive hemorrhage and death. We think the condition evidenced by the photographs was useful to the jury in not only determining an intent to kill, but also the malice, if any, was shown; and photographs have always been held admissible provided they serve to illustrate any necessary point in the cause. See Willis v. State, 49 Tex. Cr. R. 139 , 90 S. W. 1100 .

We are impressed with the inadequacy of the objection leveled at these photographs. Their authenticity and their accuracy were shown by the person who was present and superintended their taking; and nothing was said in such objection relative to the possible inflammatory effect upon the minds of the jury. A true depiction of a surrounding scene or other pertinent matter that might aid the jury in the determination of ques *589 tions submitted to them has often been held admissible, even in death penalty cases. See Powell v. State, 50 Tex. Cr. R. 592 , 99 S. W. 1005 ; Gibson v. State, 53 Tex. Cr. R. 349 , 110 S. W. 41 , both death penalty cases; see also Willis v. State, supra, and Young v. State, supra.

In Franklin v. State, 69 Ga. 36 , 47 Amer. Rep. 748, it was held:

“A photograph of the wound of the deceased was admitted as evidence over the objection of defendant. The throat of deceased was cut; the character of the wound was important to elucidate the issue; the man was killed and buried, and a description of the cut by witnesses must have been resorted to; we cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the wound on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of all evidence is to show the truth, why should not this dumb witness show it? Usually the photograph is introduced to prove identity of person, but why not to show the character of the wound? In either case it is evidence; it throws light on the issue. 1 Bish. Crim. Proc., 1097; Wharton’s Crim. Ev., 544, and cases cited in both texts.”

The second point offered herein relates to the fact of claimed misconduct upon the part of the jury in that one of the jurors made the statement that he had once read in a newspaper where a man was pardoned from the penitentiary who was serving a life term therein. The effect of such a statement is alleged in this motion to have caused the appellant to receive the extreme penalty. Evidently the jury in their discussion seemed to intend that appellant should never again be allowed to be enlarged in freedom, and they made a request of the trial court as to whether one sentenced to prison for life could ever be pardoned. This inquiry the court correctly refused to answer. See Moore v. State, 213 S. W. (2d) 844 , and cases there cited. The jurors were without guidance in such matter, but were called upon to decide the question of punishment upon their own ideas as to what would be an adequate one. Unquestionably, they would be expected to act therein as the judgment of each could be fairly blended into the judgment of all in a unanimous verdict, and such action had to carry with it many matters of common knowledge, as well as other matters that make up the personal equation of each separate juror in his outlook and understanding of life and its problems. One of these jurors made the statement that he thought he had read in a newspaper *590 that the governor had pardoned a man with a life sentence, no specific instance being cited, and there seems to have been no further discussion thereof. We do not think it possible to deprive any juror of his common knowledge and the use thereof in his deliberations, and we see no injury to have been suffered by appellant. That this offense was of unparalleled ferocity none can deny; that it was an evidence of a heart regardless of social duty is apparent; that it was inexcusable is very plain; and, as the jurors seemed to think, this appellant should be taken out of society and suffer the penalty of death; and it is not our province to gainsay such opinion.

We think the original opinion properly disposes of this cause, and the motion for a rehearing is therefore overruled.