Concurring Opinion
Prentice, J.I concur in the majority opinion but do so reluctantly with respect to Issue IV. Had I been the trial judge, I would have excluded the State’s Exhibit G-l which, unquestionably, was horrifying, inflaming, distorting, prejudicial and for the most part irrelevant and was, in my opinion, deliberately and improperly calculated to inflame the jury’s emotions. The relevance of the exhibit was but slight and its necessity apparently nonexistent. Unfortunately, under Pierce V. State cited by the majority, and the cases there cited, such circumstances do not mandate exclusion of photographic evidence, if it can be said that there is relevance — no matter how slight.
Although we have said that the tendency of such photographs to arouse the passion of the jury is not a sufficient ground in itself to justify excluding the evidence, I am aware of no case where there has been a reversal by reason of such exclusion, where the tendency was substantial and the relevance but slight. I, therefore, believe that the wording of such decision has misled a number of trial judges into believing that they have no discretion where there is relevance, which, of course, is not the case.
The concept of weighing the relevance of photographic evidence against likely prejudicial effects is valid. The availability of stipulations or of other evidence equally as persuasive as the exhibit are factors which, in my judgment, may be considered by the trial judge in determining such questions of admissibility. However, the determination of relative merit lies within the province of the trial judge and, absent clear error, his decision should not be overridden.
*710The difficulty with the Pierce rule is its failure to separate the grain from the chaff. It was said in that case that the relevance of a photograph is to be determined by an inquiry as to whether or not a witness will be permitted to describe the objects or scenes photographed. However, there can be no justification in permitting irrelevant and prejudicial evidence to be appended to and thereby slide in with that which is relevant. Admittedly, a witness would have been permitted to describe the deceased’s heart and the location and manner in which it was affected by the bullet that had penetrated and lodged within it. However, that witness would not have been permitted to describe the corpse slit open from the neck to the abdomen and from side to side, the vivid colors of the exposed marbleized fatty tissue and blood or the dangling breast that had been all but severed from the torso. Yet this is what has been portrayed by the exhibit in question, far more effectively than the location of the fatal wound. In fact, the bizarre, shocking and irrelevant appendage has obfuscated the relevant. The rule permitting photographic evidence of things a witness would be permitted to describe need not be thusly perverted to permit photographic evidence of things that he would not be permitted to describe.
If the State’s genuine purpose in offering Exhibit G-l had been to enlighten rather than to. prejudice, the decedent’s heart, which was relevant, could much better have been photographed against a neutral background. The failure of the State to have taken reasonable steps to eliminate the objectionable and irrelevant would have warranted the trial judge in rejecting the exhibit.
So, we are hampered in this case by the presence of relevance, in the evidence objected to, although such relevance was but slight; and although there was a substantial imbalance between the relevance and the prejudice, I think we may not override the trial court’s judgment. I would vote to reverse, however, had the defendant’s objection been grounded upon deliberate imbalance or upon unnecessary and unreasonable *711imbalance of relevance and prejudicial irrelevance. In the alternative, the defendant also would have been entitled to require the State to crop the irrelevant and prejudicial portion of the photograph and to have had only the relevant portion thereof admitted into evidence.