The opinion
DAVIDSON, Judge
(dissenting).
It' has long been the holding of this court that pictures of the body of deceased or of wounds to the body are not admissible in evidence and only become so when they tend to establish some disputed issue in the case. See Willis v. State, 49 Tex.Cr.R. 139 , 90 S.W. 1100 ; Gibson v. State, 153 Tex. Cr.R. 582, 223 S.W.2d 625 ; Mouton v. State, 155 Tex.Cr.R. 450 , 235 S.W.2d 645 . It is the exception to the rule, and not the rule itself, that authorizes the introduction of such pictures.
Under the holding of my brethren, here, that rule no longer exists and is effectually overruled, for they approve the introduction in evidence of — not one, but five— pictures of the nude body of the deceased, in which numerous wounds are shown upon her body not tending in any way to solve any disputed issue in the case.
Now let us examine the facts:
In the presentation of its testimony, in chief, the state proved in detail, by some twelve or thirteen witnesses, the thirty-twO' stab wounds and their location on the body of the deceased.
There was not a line of testimony from any person directly attacking the testimony of those witnesses.
All the testimony showed that deceased came to her death by being stabbed by the appellant with a knife. No witness denied that fact, and appellant admitted it in his confession.
Testifying as a witness upon direct examination, appellant admitted killing the deceased, who was his wife, by stabbing her with a knife. At no time in his direct testimony did he challenge the testimony of the state’s witnesses as to the fact that he killed deceased by stabbing her with a knife or as to the number and location of the wounds inflicted.
Appellant’s testimony showed facts that mightNauthorize mitigation of punishment. No other defense was asserted or imposed.
There was no issue, under these facts, as to appellant’s guilt or as to the fact that he killed his wife by stabbing her with a knife; such fact was admitted by the appellant.
That is the situation existing when the state took over the cross-examination of the appellant.
The first thing counsel for the state had appellant do was to identify his signature to the confession which the state offered in evidence. In that confession appellant admitted that he killed his wife by stabbing her “any number of times” with a knife. *116 He did not challenge that statement in the confession.
After an extended and grueling cross-examination, state’s counsel then proceeded to interrogate and receive replies from appellant as to the number of wounds on her body, as follows:
“Q. Did you hear the Doctor testify that there were 25 to 30 stab wounds on your wife’s body ? A. Yes, I heard that.
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“Q. The Doctor testified 25 to 30? A. Yes.
“Q. And the officer counted them?
A. You can not do that standing on the running board and the car going zig-zagging and—
* ⅝ ⅜ * ⅜
“Q. Did you hear Officer Saenz testify that he counted 32 stab wounds on your wife’s body? A. That is what he testified to.
“Q. That’s framed up? A. He didn’t say anything about the injury or wound on her head.
“Q. Is that a frame-up? A. Sure it is; I betcha (sic) my wife got the wound on her head because I am positive she was hit with the rock.
“Q. In addition to that wound on the head, did you hear the officer testify that there were 32 stab wounds on the body? A. She didn’t have no 32, that’s a lie.
“Q. There weren’t 32 stab wounds on the body? A. I didn’t count them, how many times I stabbed her.
“Q. You could have stabbed her 32 times? A. 32 is too many; and the places she had them, that’s impossible too the way everything happened; you can not do that standing on the running board and the car going zig-zag-ging and my wife the way she was. That is impossible.”
It is upon these facts that the state contended, and my brethren agree, that such a material issue as to appellant’s guilt was raised by the evidence in the case as that the introduction of the pictures in evidence was warranted — and this, in the face of appellant’s testimony that he did not and could not have counted the wounds, himself, or that he examined the body of deceased, or that he was in position to know the number of wounds.
The sole issue in the case was: Did appellant kill his wife by stabbing her with a knife ? He admitted that he did and the uncontradicted facts so show. Whether the killing resulted from thirty-two wounds or from a fewer number was not necessary to be determined in order to convict or to fix appellant’s guilt.
It must be remembered that appellant did not go into the question as to the number of wounds on the body; the state, itself, did that. Up until the time the state interrogated appellant, the number of wounds or their location was not mentioned by appellant.
As above pointed out, there was not and could not have been the semblance of any issue or testimony in the case which would authorize the introduction of the pictures in evidence.
I can reach no other conclusion but that the state’s cross-examination was not for the purpose of determining the number of wounds on the body of the deceased or how she came to her death, but was for the purpose of securing from appellant some contradicting testimony as a basis for getting the pictures in evidence — but for which it could not be done. The state sought to do indirectly that which it could not do directly.
If there were any issue as to the number of wounds, the state made the issue and developed the facts to show such issue; the appellant did not do so. The state, then, relies upon contradictory facts which it developed as its own testimony. I can *117 ascribe to that action by the state no purpose other than to create a fictitious issue for the sole purpose of getting the pictures before the jury, which could otherwise not lawfully be done.
Moreover, when appellant's testimony on cross-examination is analyzed, it is found that he is referring not to the number of wounds the state’s witnesses testified to finding upon the body of the deceased but to the fact that he did not inflict thirty-two wounds thereon. He did not challenge the existence of thirty-two wounds on the body.
The state’s witnesses did not know and therefore could not testify that appellant inflicted the thirty-two wounds on the body. So is it apparent .then, in the first instance, that there is really no contradiction of the testimony of the state’s witnesses.
The five pictures showing the nude body ■of the deceased in various positions — ghastly . . horrible, as they are — were highly inflammatory and calculated to arouse against the perpetrator the prejudice of those who viewed them. They were clearly calculated to cause, and did cause, the jury to inflict the death penalty. But for their introduction in evidence, the jury —in my opinion — would not have assessed the death penalty.
There is no place for speculation as to the injury to appellant by the introduction •of the pictures in evidence.
The pictures were not admissible in evidence. It is only out of respect for the ■dead that I do not incorporate those pictures in this opinion.
I could, at some length, discuss the reason back of and upon which rests the rule forbidding the use in evidence of pictures of the body of the deceased showing the wounds thereon in a murder case unless they tend to solve some material and disputed issue in the case, but I will content myself, here, by calling attention to the fact that trial by jury contemplates a fair trial -under the law, without passion or prejudice.
A conviction which is brought about as a result of passion and prejudice, aroused and engendered in the minds of the jury by inadmissible testimony, ought not to be permitted to stand.
For all I know, this Latin-American may deserve the death penalty for stabbing his wife to death when he found her hugging and kissing another man. But such is not for me to determine.
It is my duty to determine whether appellant had a fair trial under the law. This, I •am convinced, he was not accorded.
I dissent.