The majority opinion in this case annuls the verdict and sentence and remands the *Page 580 case to the district court for a new trial, on the ground that two of the 16 bills of exception reserved during the course of the trial disclose reversible error. I cannot agree with the majority opinion that these two bills have merit and therefore respectfully dissent.
The facts and circumstances surrounding the first bill discussed in the majority opinion are as follows: While the defendant was a witness in his own behalf, his counsel propounded to him this question: "Freddie, why did you take that gun out to the Babin home with you that day?" Upon objection to this question by the State, the jury was retired, and during its absence the defendant explained in answer to the question that Mrs. Babin, the deceased, told him four or five years before that her husband started to shoot her once, and that her sons had to take the gun away from him to keep him from shooting her. Thereupon the trial judge sustained the State's objection on the ground that the testimony sought to be elicited from the defendant was hearsay and too remote.
I am of the opinion that the trial judge properly sustained the objection.
The answer of the defendant to the question propounded, given in the absence of the jury, shows that the evidence which he sought to introduce was a statement made by the deceased to himfour or five years prior to the homicide with reference to a difficulty which the deceased had with her husband at that time. *Page 581
The majority opinion, in holding that the evidence should have been admitted for the reason that it was relevant for defendant to offer some explanation for his having been armed other than that imputed to him by the State, says that the rule is: "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." Numerous cases and textbook writers are cited in support thereof.
As far as I can ascertain, the courts of no state have refused to recognize this rule. However, I do not think that, when the defendant seeks to introduce evidence in explanation of his acts of preparation, the rule contemplates or warrants the suspension of the ordinary rules of evidence which render evidence incompetent or inadmissible because it is irrelevant or hearsay, etc.
The majority opinion holds that whether the statement made four or five years before the time of the homicide was too remote to be of any importance in this case was a matter for the jury to determine, or, stated somewhat differently, that the weight to be given this statement was a question for the jury, and its remoteness did not affect its admissibility.
20 Am.Jur., "Evidence", Section 249, page 243, gives the rule with reference to the admissibility of remote evidence as follows:
"Evidence which is otherwise competent may relate to facts too remote in point *Page 582 of time or to matters too far removed from the scene of a transaction to be admissible. The admissibility of such evidenceis a matter resting largely in the discretion of the trialcourt." (Italics ours.)
This rule is stated in I Wharton's Criminal Evidence, (11th ed.), Section 370, page 587, thus:
"No exact limitation as to time can be established in which an act must have occurred in order to give it evidential value. Generally speaking, the question of remoteness to authorize the exclusion of testimony should depend upon all of the considerations of the case, including time, the character of the facts sought to be proved, and all of the surrounding circumstances which, in the opinion of the trial court, ought to be considered in the determination of the matter at issue. Evidence may be relevant, yet so remote in time as to be of little or no value, and hence, properly excluded. On the other hand, the passage of time may affect only the weight of evidence, and not its significance. The determination of thequestion, therefore, must rest in the sound discretion of thetrial court." (Italics ours.)
The rule thus stated with reference to the admissibility of remote evidence clearly shows that its remoteness affects its admissibility, and that the question of its admissibility is for the trial judge, not the jury. Inasmuch as the evidence which the defendant sought to introduce related to a conversation *Page 583 between him and the deceased four or five years before, in which it was divulged that threats had been made against the deceased by her husband, it was unquestionably too remote to be of any value to explain why he took the gun to the Babin home on the day of the homicide. In any event, the rule is clear that the admissibility of remote evidence is a matter within the discretion of the trial judge. Unless it is shown that the judge abused his discretion and thereby prejudiced the defendant, the ruling of the trial judge should be sustained. Undoubtedly, there was no such abuse of discretion in the instant case, and, in my opinion, the bill has no merit.
The second bill discussed in the majority opinion was taken to a ruling of the trial judge permitting the State to introduce in evidence certain photographs over the objection of the defendant. These photographs were offered by the State for the purpose of proving the corpus delicti and the nature, scope, and extent of the wounds received by the deceased.
It is the opinion of the majority of the court that these photographs presented a a gruesome and ghastly spectacle which might well have disturbed the composure of the jurors in their deliberations, and that the photographs were not at all necessary or relevant at the time they were offered in evidence, since the corpus delicti had already been proved by the testimony of the coroner and by the introduction in evidence of the proces verbal of the coroner's inquest, and, further, since the location, nature, *Page 584 and effect of the wounds on the body of the deceased had been described in detail by the coroner in his testimony.
2 Wharton's Criminal Evidence (11th Ed.), Section 774, page 1323, gives the rule which I think applicable to this case as follows:
"* * * Thus, in prosecutions for homicide, photographs which portray the body of the deceased for the purpose of showing the manner of death and the location, severity, and number of wounds are admissible. * * * Photographs may also be admitted * * * to establish the corpus delicti of the crime charged * * * and to corroborate testimony."
Proof of the corpus delicti is an issue in every homicide case, and must be made by the prosecution. Even though the coroner had testified as to the location, nature, and effect of the wounds on the body of the deceased, these photographs merely corroborated his testimony and were admissible for such purpose.
In State v. Johnson, 198 La. 195, 3 So. 2d 556, the case cited and quoted from in the majority opinion as stating the law on the subject of the admissibility of photographs in evidence in a criminal prosecution, this court held that photographs of the deceased were properly admitted in evidence, which photographs were offered by the State in connection with the testimony of the deputy coroner, notwithstanding the fact that one of the objections of the defendant was that the deputy coroner could describe to the *Page 585 satisfaction of the jury the wounds of the deceased from which he died, and that the admission of the photographs in evidence would tend to create a feeling of horror in the minds of jurors which would be highly prejudicial to the defendant.
The mere fact that the photographs of the body of the deceased offered in evidence in the instant case were gruesome or ghastly, and due to this fact might have been prejudicial, does not affect their admissibility in evidence, as pointed out in Scott on Photographic Evidence, Section 661, page 577, as follows:
"A photograph of the wounds of the victim of a crime may be prejudicial because of its gruesome appearance, but nevertheless it is admissible when material to some issue in the case and when properly verified; if the rule were otherwise, the more horrible a crime the more hampered would be the prosecution of those who had contributed to the details of its horror. * * *"
For these reasons I respectfully dissent.