The defendant was indicted for the crime of murder, and was tried twice, the first trial resulting in a mistrial, and the second in a conviction for manslaughter. He was sentenced to imprisonment in the penitentiary for the term of seven years and is appealing from the conviction and sentence.
The victim of the homicide was the defendant's mother-in-law. She was shot during a shot-gun duel between her husband and the defendant. He urged two defenses on the trial of the case, the first defense being that the shot which killed his mother-in-law was fired from the gun of her husband, the second defense being that if the fatal shot came from the defendant's gun he was firing in defense of his life, being attacked first by his father-in-law, and was therefore justified, under the law of self-defense. *Page 575
The record contains sixteen bills of exception. The most important bill is the one which was reserved to the refusal of the judge to allow the defendant to explain why he brought his shotgun in his automobile when he came to his father-in-law's home in search of his wife. The theory advanced by the State was that the defendant had brought the gun for the purpose of carrying out a threat to kill his wife. In support of that theory the State offered evidence, over the defendant's objection, to prove that on the night before the killing the defendant and his wife had a quarrel which ended in her leaving her home, and in his threatening to kill her. In contradiction or rebuttal of the State's theory, as to why the defendant brought his shotgun in his automobile when he went in search of his wife, the defendant proposed to prove, substantially, that it was to protect himself against violence on the part of his wife's father that he carried the shotgun in his automobile when he went to his father-in-law's house in search of his wife. The defendant's attorney therefore asked him, when he was testifying as a witness in the case, why he had brought the shotgun, and, anticipating the answer, the prosecuting attorney objected and the jury was withdrawn from the court room. The defendant then testified, in the absence of the jury, that his reason for bringing the shotgun was that his mother-in-law had told him, four or five years before the fatal difficulty, that her husband had tried to kill her and was prevented from doing so only by the intervention *Page 576 of her sons. The district attorney's objection to the testimony was that the alleged statement to the defendant by his mother-in-law was hearsay evidence and that the incident said to have been related by her was too remote from the time of the fatal difficulty. The judge sustained the objection.
Our opinion is that the defendant's testimony was admissible for the purpose of contradicting the evidence which the State had introduced to prove the purpose for which the defendant brought his shotgun in his automobile when he went to his father-in-law's house in search of his wife. Certainly the evidence was not objectionable as being hearsay evidence, because it was not offered for the purpose of proving the truth of what the mother-in-law had told the defendant regarding the violent disposition of her husband, but was offered merely to prove the fact that she had made the statement to the defendant. Whether the defendant's admission that the statement made to him by his mother-in-law was made four or five years before the time of the homicide made the evidence too remote to be of any importance in this case was a matter for the jury to determine.
Evidence showing preparation for the commission of a crime is always admissible for the State; and evidence in explanation of such acts of preparation is always admissible for the defendant. 1 Marr, Criminal Jurisprudence in Louisiana (2d ed. 1923) 97; State v. Claire, 1889, 41 *Page 577 La.Ann. 191, 6 So. 129; State v. Stockett, 1905, 115 La. 743,39 So. 1000; State v. Werner, 1911, 128 La. 1, 54 So. 402; State v. Bankston, 1928, 165 La. 1082, 116 So. 565; 1 Wharton, Criminal Evidence (11th ed. 1935) 352, sec. 277.
It is true that in State v. Werner [128 La. 1, 54 So. 404] the court concluded, from facts which are not pertinent to the present case, that the exclusion of the defendant's explanation of his having been armed was not sufficiently prejudicial to justify setting aside the verdict; but even in that case the court took occasion to affirm the general rule, thus:
"We think the evidence should have been admitted; for, certainly, it was relevant for defendant to offer some other reason, if he could, for his having been armed, than that imputed to him of intending to use the weapon upon his wife or his brother-in-law."
Another bill of exception which we consider important was reserved to the overruling of an objection made by the defendant's attorney to the introduction in evidence of two gruesome photographs of the dead body of the victim of the homicide. Our opinion of the photographs is that they do present a gruesome or ghastly spectacle, which might well have disturbed the composure of the members of the jury in their deliberations. There is no need for going into details on that subject. It is sufficient to say that the introduction of the photographs in evidence was not at all *Page 578 necessary or relevant to any fact at issue at the time when the photographs were offered in evidence. In offering them the district attorney stated, in response to the defendant's objection, that he offered them "for the purpose of proving the corpus delicti and for the purpose of proving the nature, scope and extent of the wound received by the deceased". The corpus delicti had been proved already by the testimony of the coroner and by the introduction in evidence of the proces verbal of the coroner's inquest. Also the location and the nature and effect of the wounds on the body of the deceased had been described in detail by the coroner in his testimony, and there was no dispute on that subject at the time when the district attorney offered the gruesome photographs in evidence. The law on the subject of the admissibility of photographs in evidence in a criminal prosecution is stated in State v. Johnson, 1941, 198 La. 195,204, 205, 3 So. 2d 556, 559, — thus:
"Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Wharton, Criminal evidence, 11th Ed., Vol. 2, sec. 773, p. 1321."
The converse of that proposition is that if a gruesome photograph is not at all necessary or material evidence in a criminal prosecution it should be excluded if it *Page 579 may have a tendency to cause an undue influence upon the jury. Therefore the objectionable photographs in this case should not be introduced in evidence if and when the case is tried again, unless the State shows some necessary purpose for the introduction of the photographs in evidence.
The only remaining bill of exception which we consider important is the one which was reserved to the overruling of a supplemental motion for a new trial. The motion was founded upon so-called newly-discovered evidence. There is no necessity, however, for our passing upon this bill of exception now, since we have concluded to remand the case for a new trial. On the new trial the defendant will have an opportunity, of course, to introduce his so-called newly-discovered evidence.
The remaining thirteen bills of exception relate to objections and rulings which are not apt to arise in another trial of the case, and which therefore need not be considered.
The verdict and sentence appealed from are annulled and the case is ordered remanded to the district court for a new trial.
McCALEB, J., dissents from the ruling concerning the photographs, but is in agreement as to the other bills considered.
HAWTHORNE, J., dissents.