Appellant was charged by indictment with the murder of his wife, tried by jury, found guilty of murder in the first degree and sentenced to death in the electric chair.
The uncontradicted evidence shows that on the morning of January 15, 1957, while appellant’s wife was in the basement of their home doing the family laundry, he went into the basement to discuss with her their financial problems and an argument followed, during *106which appellant hit his wife. Following her resistance he threw her to the floor and began beating her with a hammer. Their small daughter, hearing the commotion in thé' basement, ran downstairs and attempted to stop her father from beating her mother, whereupon appellant struck the child with the hammer. He continued to strike both with the hammer and when they were “knocked out” appellant then went upstairs to the second floor and got a hunting knife and returned to the basement where he slashed the bodies of both his wife and daughter, causing their death.
Appellant admits these acts.- However, we do not pass upon the guilt or innocence of a defendant. Our duty is to see that he has a fair trial. Even the perpetrator of a crime as heinous as that portrayed by the evidence in this case, is entitled to a fair trial and the protection of his rights as an American citizen. It is with this thought in mind that we approach the questions presented by this appeal.
Only Specifications 1 and 4 of the motion for a new trial are discussed in appellant’s brief and all others are deemed waived.
Appellant asserts that (1) the trial court erred in admitting into evidence, over his objections, State’s Exhibits Nos. 8, 10, 11, 12, 13 and 14; and (2) the evidence is not sufficient to show malice and premeditation.
These propositions present four questions for our consideration; and, notwithstanding the result we have reached, all will be considered because some are likely to arise on a retrial.
First: Exhibit 8 is a photograph of the child lying oh the basement floor near the steps and showing large knife wounds on her face and body. Appellant asserts *107that such exhibit was “not material or relevant to the issues before the Court,” since he was on trial for the death of his wife and not for the death of his child.
As a general rule a photograph that is “entirely irrelevant and immaterial to any issue in the cause and which is of such a character as to divert the minds of the jury to improper or irrelevant considerations should be excluded from evidence.” 20 Am. Jur., Evidence, §729, p. 609; Under-hill’s Cr. Evidence, 5th Ed., §117, p. 16 (1958 Supp.).
However, this rule is not applicable to State’s Exhibit No. 8 because under the evidence in the record here the killing of the child was part of the res gestae. See: 22 C. J. S., Criminal Law, §662, p. 1044.
The rule by which we must be guided in our consideration of this question is stated in 22 C. J. S., Criminal Law, §663, p. 1049, as follows:
“Evidence of another and distinct crime is admissible where it was committed as part of the same transaction and forms part of the res gestae.” See also: Starr v. State (1903), 160 Ind. 661, 67 N. E. 527; Gallaher et al. v. The State (1885), 101 Ind. 411, 412; Harding v. The State (1876), 54 Ind. 359, 366.
This court was faced with a similar question in Starr v. State, supra, where appellant was charged with assault and battery with intent to murder William Rebelskey, one of two brothers, William and Otto, whom he had overtaken and struck with a hatchet while they were on their way to a nearby town.
The court there, over the objections of appellant, permitted a witness to testify that he saw both brothers just after the attack, one (Otto) lying on a snowdrift and the other (the prosecuting witness William) standing near their buggy with a cut in his temple. Appel*108lant contended that the evidence relating to Otto was incompetent. At page 669 of 160 Ind. this court said:
“It was a necessary part of the description of the situation as it appeared a few moments after the cutting. The wounding of the two men by the appellant occurred in the same , encounter, was done with the same weapon, and was almost simultaneous. While the attack upon each may have constituted a separate offense, the cutting of each of the injured persons was in one and the same transaction, and constituted a part of the. res gestae.”
The situation in that case seems to us to be similar to that pertaining to the introduction of the photograph of the child in the case at bar. The killing of the child herein was simultaneous with the attack on the wife; it was done with the same weapon; and it sprang out of, and was a result of the encounter between appellant and his wife. Exhibit No. 8 was, therefore, properly admitted.
Second: Exhibits Nos. 9, 10, 11 and 12 are photographs of the wife’s body taken from different angles at the scene of the crime. Even though these photographs representing Exhibits Nos. 10, 11 and 12 may have been, to some degree, repetitious and cumulative, and are gruesome in character, they serve to elucidate and explain relevant oral testimony given at the trial and they were properly admitted for the purpose of showing fully the scene of the crime, the nature of the wounds of the victim, and the condition of the basement immediately after the crime was committed. Cf: Davidson v. The State (1893), 135 Ind. 254, 259, 34 N. E. 972.
Third: Was the evidence sufficient to show malice and premeditation?
*109Malice may be presumed from the intentional use of a deadly weapon in such a manner as is likely to cause death. Myles v. State (1955), 234 Ind. 129, 133, 124 N. E. 2d 205 (Cert. denied, 349 U. S. 932) ; Everett v. State (1935), 208 Ind. 145, 149, 195 N. E. 77.
“Premeditation is an intent before the act of killing. It means entertainment by the mind of a design to kill, and is often defined as ‘thought of beforehand,’ ...” 1 Warren on Homicide, §70, p. 293. See also: Koerner v. The State (1884), 98 Ind. 7, 8-10.
This court recently said in Heglin v. State (1957), 236 Ind. 350, 354, 140 N. E. 2d 98, 100:
“Premeditation by its very nature is not instantaneous, but requires some time interval. ... It is of the very essence of the crime that there should be time and opportunity for deliberation or premeditation after the intent to kill has been formed in the mind.”
No appreciable length of time is required to exist for premeditation.
“It is sufficient if defendant having time to think weighs the purpose to kill another long enough to form and does form a design to do so, if at a subsequent time, no matter how soon or how remote, the design was executed.” 1 Warren on Homicide, 78, p. 381. See also: Fahnestock v. The State (1864), 23 Ind. 231, 263; Aszman v. The State (1890), 123 Ind. 347, 351, 352, 24 N. E. 123, 8 L. R. A. 33; Everett v. State, supra (1935), 208 Ind. 145, 149-150, 195 N. E. 77.
In People v. Fossetti (1908), 7 Cal. App. 629, 95 Pac. 384, during the course of angry words, in the room of a mutual friend, appellant called the deceased a “liar.” Deceased then struck the appellant on the cheek and knocked him over on the bed. Appellant then left the *110room, got a revolver and returned and shot the deceased. An eye witness, who was also in the room at the time, testified that as the appellant went out the door he said to the deceased, “I’ll fix you.” This witness further testified that from the time the appellant went out the door and said, “I’ll fix you,” until the fatal shot was fired was “inside of a minute.” It was there contended that the evidence showed that the fatal shot was fired during a sudden quarrel or heat of passion, and, at most, only constituted the crime of manslaughter.
At page 386 of 95 Pac. the Court of Appeal said:
“The defendant deliberately left the room, according to the testimony, after saying that he would ‘fix’ deceased. He procured a pistol and returned, and, without warning, fired the shot that caused the death of Moseley. In such case the jury are the exclusive judges of the facts, and it is for the jury to say whether the killing was the result of malice and premeditation, or whether it occurred during a sudden quarrel or heat of passion. No definite time was necessary after defendant was struck for his angry passions to cool. The jury had the right to infer when he left the room to procure his pistol that he did so with the deliberate and willful intention of killing deceased.”
We think the circumstances in the case at bar are analogous to those in People v. Fossetti, supra. Applying the reasoning in that case to the facts in the case at bar leads us to the same conclusion.
The appellant herein left the basement, went upstairs to the bedroom on the second floor where he got his hunting knife. He then returned to the basement where he stabbed and cut, first the body of his wife, then that of the little girl.
A police officer testified, as a witness for the State, as follows:
*111“I asked him [appellant] why he got the knife, and he replied that he wanted to make sure they were dead.”
A deputy coroner of Allen County testified that he conducted an autopsy upon the body of appellant’s wife from which he determined that the cause of death was “due to multiple lacerations from stab wounds about the chest and abdomen.”
It was for the jury to decide whether the killing in this case was the result of premeditated malice or whether it resulted from a sudden quarrel or heat of passion; Booher v. State (1901), 156 Ind. 435, 448, 60. N. E. 156, 54 L. R. A. 391; and if there is sufficient evidence of probative value to support the verdict of the jury it will not be disturbed on appeal.
The evidence abovementioned was sufficient to support an inference by the jury that appellant, when he left the basement and went to the second floor to get his hunting knife, did so deliberately and with the premeditated and malicious intention of killing his wife, the deceased herein.
Fourth: After the State had introduced four photographs, Exhibit No. 9 without objection, and Exhibits Nos. 10, 11 and 12 over the objection of appellant, that portrayed the nude body of appellant’s wife lying in the basement at the scene of the crime, it then introduced, also, over the objection of appellant, two photographs of deceased’s nude body taken as it lay on a slab in the mortuary at the time an autopsy was performed. The first of these photographs, being State’s Exhibit No. 13, shows the hands of a doctor and nurse with instruments, inside the deceased’s chest. The other, State’s Exhibit No. 14, is a photograph of deceased’s nude body, lying face up on a slab and showing all of the knife wounds, plus additional incisions made in the *112body by the doctor in performing the autopsy. This photograph showed the body as it appeared after the doctor had finished with the autopsy and not as it appeared in the photographs1 taken at the scene of the crime.
All of the abovementioned photographs are gruesome and shocking and are clearly of a prejudicial character. The general rule as to the right to introduce such photographs is as follows:
As stated in 2 Wharton’s Criminal Evidence, 12th ed., §687, at pages 658-659, it is:
“Photographs are admissible to show the body of the victim; to establish the corpus delicti; to show the position of the parties to the crime, the position of the victim’s body, the condition of the victim, the wounds of the victim, and the cause of death; . . .”
Underhill’s Criminal Evidence, 5th ed., §117, sivpra, states that photographs which go to illustrate any fact or shed light on an issue, or are relevant to describe the person, place or thing involved, are admissible. (Page 213.) They are not inadmissible merely because they are shocking, horrible or tend to arouse passion or prejudice, (page 222) but a “photograph serving only, or primarily, to arouse passion or prejudice will not be received . . .” (Page 16, 1958 Supp.).
23 C. J. S., Criminal Law, §852, pp. 53, 54, states:
“When it is material to the issues, a photograph of deceased, or of his body or parts thereof, is admissible in a prosecution for homicide, although the picture has a gruesome or shocking aspect, and tends to excite the passion or prejudice of the jury; but such photographs should be excluded if they are unnecessary and introduced for the purpose of *113inflaming the jury’s emotions. It is within the discretion of the trial court to determine whether or not such a photograph is admissible.” (Our italics.)
The leading case in Indiana on the admission of photographs is Hawkins v. State (1941), 219 Ind. 116, 37 N. E. 2d 79. In this case photographs of the taxicab in which the crime was committed and of the decomposed body of the deceased, including a photograph of the skull with the skin and flesh removed, were held admissible on the ground that the facts shown had been described, without objections, and that the photographs supplemented oral testimony, and on the further ground that the photographs tended to give a more accurate description of the wounds and the severity of the blows, and for this reason were relevant even though. some of them may have been repulsive and gruesome.
This court in Hawkins v. State, supra (1941), 219 Ind. 116, at pages 127, 128, 37 N. E. 2d 79, 83, said:
“Cited under this text2 are numerous criminal cases holding proper the admission of photographs picturing the scene of the crime, objects used in its commission, the body of the victim and other details enabling the jury to visualize what actually occurred. Their relevancy, it seems to us, is determined by the inquiry as to whether or not a witness would be permitted to describe the objects photographed.” See also: Turrell v. State (1943), 221 Ind. 662, 670, 51 N. E. 2d 359; Hicks v. State (1938), 213 Ind. 277, 288, 11 N. E. 2d 171 (Cert. denied 304 U. S. 564) ; Wahl v. State (1951), 229 Ind. 521, 532, 98 N. E. 2d 671.
In our opinion none of the foregoing Indiana cases support the position of the State as it relates to the *114admission of Exhibits Nos. 13 and 14, and they have no application here because of the difference in the circumstances under which the photographs were made and the purposes for which they were introduced.
We recognize that photographs of a corpse are admissible in evidence, even though they portray a gruesome spectacle and may arouse passion and resentment against the defendant in the minds of the jury, but such photographs must be material and relevant and tend to prove or disprove some material fact in issue. 159 A. L. R., Anno. 1413, at page 1420.
Photographs which show the body of a deceased during and after the autopsy was performed have been held inadmissible on the theory that they serve no material purpose and their only value is to arouse the emotions of the jury.
In The People v. Jackson (1956), 9 Ill. 2d 484, 138 N. E. 2d 528, the State introduced a photograph of the deceased which showed some of the sutures made in the performance of the autopsy. The Supreme Court of Illinois said that the only use of the photograph from the State’s standpoint was to arouse the emotions of the jury so that they would administer a more severe penalty, and held that the admission of such a photograph was improper.
In State v. Bischert (1957), 131 Mont. 152, 308 P. 2d 969, in a trial on the charge of manslaughter for failure to provide food for a five month old child causing death by starvation, the State introduced three photographs of the body of the baby and a colored slide taken after the post-mortem. These were used in connection with the doctor’s testimony. The doctor stated that he did not need the photographs to explain his *115findings, but said that they were helpful. Over objections of appellant’s counsel, the prosecuting attorney dwelt in detail on each of the pictures.
The Supreme Court of Montana there held that the photographs were inflammatory, ghastly and gruesome and calculated to arouse the sympathies or prejudices of the jury; that they served no material purpose, and at page 973 of 308 P. 2d, said:
“When the purpose of an exhibit is to inflame the minds of the jury or excite the feelings rather than to enlighten the jury as to any fact, it should be excluded.” Citing authorities.
In McKee v. State (1947), 33 Ala. App. 171, 31 So. 2d 656, 662 (Cert. denied 249 Ala. 433), McKee was tried and convicted of murdering his wife and during the course of the trial the State introduced pictures of her body cut open showing a large scar in the spleen which the State’s Toxicologist testified was caused by trauma. The Court of Appeals of Alabama held this particular picture inadmissible because it not only showed the scar in the spleen but also showed the open operation made by the autopsy surgeon. This rendered the whole picture extremely gruesome and not of any particular value in solving the question in issue. At page 661 of 31 So. 2d, the court said:
“Where, as in this case, massive mutilation of a body is necessary to expose such injured organ, fairness to an accused demands that only so much of the surrounding dissected body area be pictured as is reasonably necessary to furnish visual aid to the jury in determining the question of facts presented.”
In Craft v. Commonwealth (1950), 312 Ky. 700, 229 S. W. 2d 465, the appellant was convicted of armed robbery and sentenced to death. After the robbery appellant Craft was apprehended, signed a confession *116giving a detailed account of the circumstances, and this, and other testimony, conclusively showed his guilt. The police introduced in evidence several pictures of the scene of the robbery and of Craft and, over objection, a large photograph of the upper part of the dead man’s body which showed stitches all the way across the front and down the middle of the torso. The court instructed the jury that the picture was competent only for the purpose of identifying the deceased and showing the location of the gunshot wound causing his death, but the stitches under his neck and down through his body had nothing to do with the case, but were made on a post-mortem examination. In holding that the Commonwealth had certain proof of the guilt of the accused, the Court of Appeals of Kentucky reversed the judgment because of the introduction of the picture of the deceased saying that it was ghastly, irrelevant and . unnecessary and calculated only to accentuate and magnify the crime.
In Poe v. Commonwealth (1957), Ky., 301 S. W. 2d 900, the appellant was charged with manslaughter and upon her conviction she appealed, primarily because the Commonwealth introduced photographs of the body of the victim and of the shirt worn by him at the time he was shot. Defendant objected and made the formal admission that the deceased came to his death as a result of a gunshot wound which made a hole through his body, one on the outside of the left breast, and the other on the right shoulder, and that he fell in his driveway near the well.
The Commonwealth’s Attorney refused to accept the admission and proceeded with the introduction of the shirt and the photographs.
In holding that the admission of these photographs *117and the shirt was error, the Court of Appeals of Kentucky, at page 902 of 301 S. W. 2d, said:
“The introduction of gruesome photographs, bloody clothing, and the like is almost inevitably accompanied by the risk of inflaming the minds of the jurors to the prejudice of the accused. Where necessary to prove a contested relevant fact, their probative value is usually held to outweigh any possible prejudicial effect they might have.” See also: Poe v. Commonwealth (1958), Ky., 314 S. W. 2d 199.
State’s Exhibits Nos. 13 and 14 show nothing and establish no facts not shown by State’s Exhibits Nos. 9, 10, 11 and 12. State’s Exhibit No. 13, as above stated, shows the hands and instruments of the surgeon inside the deceased’s chest and State’s Exhibit No. 14 shows additional incisions made by the doctor who performed the autopsy. Both these photographs, and especially State’s Exhibit No. 13, are very gruesome, revolting and inflammatory.
These exhibits were not in any way necessary to establish the corpus delicti. They did not show the position of the parties to the crime nor correctly show the wounds of the victim or the cause of her death. They did not “shed any light on any issue” or enlighten the jury on any fact in issue, but served only to arouse passion and prejudice.
These exhibits were calculated to, and in our opinion did, only incite sympathy for the woman who lost her life and indignation against the appellant herein. They were unnecessary and were introduced only for the purpose of inflaming the jury’s emotions.
It is the duty of the State to present relevant and material facts to the jury to stimulate their mental processes so that they might thereby arrive at the guilt or innocence of the accused. But to introduce *118evidence only for the purpose of arousing the passions and prejudices of the jury, in such a manner as to cause them to abandon any serious consideration of the facts of the case and give expression only to their emotions, is clearly outside the scope of such duty and a violation of an accused’s right to a fair trial.
It is a part of our American heritage that every defendant, regardless of what he may be accused, and no matter what the public feeling may be against him, is entitled to a fair trial, with the introduction against him only of evidence which is sanctioned by established law.
State’s Exhibits Nos. 13 and 14 should have been excluded, and the trial court abused its discretion'in'permitting them to be introduced and exhibited to the jury.
For this reason the judgment of the'trial court must be reversed.
Judgment reversed with instructions to the trial court to grant appellant’s motion for a new trial.
Emmert,. J., concurs. Landis, J., concurs with opinion. • Achof, J., dissents. Arterburn, J., dissents with opinion.. State’s Exhibits Nos. 9, 10,11 and 12.
. 3 Wigmore on Evidence, 3d ed., §792, p. 178; 23 C, J. S., Criminal Law, §852, p. 51.