Dissenting Opinion
Arterburn, J.I cannot concur in the majority opinion because I feel it overrules and repudiates all the principles of law decided by this court in Hawkins v. State (1941), 219 Ind. 116, 37 N. E. 2d 79, and the line of cases upon which it is based. Practically every point considered and decided in the majority opinion in reversing the trial court was disposed of and decided to the contrary in that case.
The primary issue in this case is whether or not certain photographs, which showed an autopsy performed upon the murdered victim’s body, revealing in more detail the depth, size and nature of the many slashing wounds which were inflicted, were competent and admissible in the evidence in the murder trial.
We have to go to the transcript in search of the objections made to the photographs since they are not contained in the motion for new trial or briefs. The statement there is:
“The defendant objects as being highly inflammatory, repetitious, serve no useful purpose, inflaming the jury, prejudicial against this defendant.”
No objection is raised in the record or briefs in this case that the photographs are inaccurate or not a true representation. Yet the fact that the pictures show one incision, which may have been made and sewed by the physician performing the autopsy, appears to be one of the reasons the majority opinion offers as to why the photographs are not admissible. Such an objection was not raised in the trial court and was not presented on appeal. ’
*120Nevertheless such incision which is hardly to be seen in the photographs, does not on the merits of the question make the photographs inadmissible. As a general rule they are admissible even though some changes have occurred in the object pictured or the surroundings, if they do not serve to distort the basic facts portrayed and the jury is informed as to such changes. The Hawkins Case, supra makes this crystal-clear. In that case a photograph was taken of the murdered victim’s decomposed body a number of months after he was killed. There was a change in the seasons, the foliage and in other details, yet the court said:
“Appellant’s objection that the photographs were not made at the time the crime was committed if taken at its face value would exclude practically all photographs, for few crimes are publicized by the presence of a photographer.”
Numerous Indiana cases are cited there to support this proposition, particularly when an explanation is made to inform the jury so that it may take such matter into consideration in viewing the picture. In the case before us the physician performing the autopsy explained that only one incision was made and on the photograph this appears to be sewed together. I do not think that the jury was misled or prejudiced by the appearance of this single incision which is hardly discernible in the picture. “Nor does the fact that conditions were somewhat changed before the photograph was taken render the photograph inadmissible if the changes were not material.” 20 Am. Jur. Evidence, sec. 731, p. 611.
The purpose of an autopsy is to discover the cause of death. One of the issues in a murder case is the cause of death. If the physician’s testimony in his technical language is competent for the jury to hear *121as to that issue, certainly a picture which is more revealing and realistic would give a jury a much better idea as to how the death occurred and what the size and character of the wounds were. The majority opinion says the exhibits “were unnecessary.” The only limitation on repetitious evidence is the discretion of the trial judge.
Again we refer to the Hawkins case, which says:
“In this case there was no objection to detailed testimony of all the facts shown by the photographs. But this in itself seems to be a ground ui'ged for their exclusion, that is, the lack of necessity for their introduction. Ordinarily a party is not limited in presenting to the jury the facts upon which he relies. More than one witness may testify to the same fact. We see no reason, therefore, why a witness may not describe in words what he saw and also supplement his testimony with photographs, which frequently give the jury a more accurate picture than the verbal description.”
The law in Indiana has always been that if oral testimony regarding a fact is given, a photograph revealing the same facts is admissible. Hawkins v. State, supra (1941), 219 Ind. 116, 37 N. E. 2d 79; Wahl v. State (1951), 229 Ind. 521, 98 N. E. 2d 671; Hicks v. State (1938), 213 Ind. 277, 11 N. E. 2d 171, 12 N. E. 2d 501; Thrawley v. State (1899), 153 Ind. 375, 55 N. E. 95.
One can hardly conceive of a more gruesome and disagreeable picture than that of a decomposed body of a victim lying in weeds with the skull and bones showing, as was true in the Hawkins Case, yet the same objection was made there as here, namely that it was introduced “for the purpose of prejudicing the jury.” In that case the court, citing and analyzing numerous authorities including Wigmore on Evidence, held the objection not valid and said:
*122“We can think of details that might legitimately have been told by witnesses that are not shown by either Exhibit 12 or 24. The stench of human flesh putrefying in the weeds under a hot May sun can be described but not photographed. In fact the oral testimony in this case paints a picture just as repulsive as those shown by the photographs. They confirm, perhaps without adding, details, the bound hands, the cracked skull, which it was proper to relate to the jury. The extent of the head injury was material for appellant in his confession sought to leave the impression that his striking the driver of the taxicab on the head with a lead pipe was an attempt to save him from being shot by his confederate. The photograph of the skull gave the jury an accurate picture of the jagged hole and radiating cracks, indicating not a mild knockout tap but a violent blow.”
The mere fact that evidence is prejudicial to a defendant does not, by reason thereof, make it incompetent or inadmissible. The fact is, all evidence which is relevant and presented by the State in a criminal prosecution is prejudicial to a defendant. It is only when the evidence is irrelevant, regardless of whether prejudicial or not, that it becomes inadmissible.
“When otherwise admissible, it is no objection that a photograph is gruesome, or likely to inflame or prejudice the jury. A photograph otherwise admissible is therefore not to be excluded even though it shows a garrotted child with his hands and feet cut off to prevent identification, or the naked _ or decomposed body of the victim.” 2 Wharton’s Criminal Evidence, pp. 654-655.
“Where they are otherwise properly admitted and have a reasonable tendency to prove or disprove some material fact in issue, or shed some light upon some material inquiry, photographs of a corpse are admissible in evidence even though they portray a gruesome spectacle and may tend to arouse passion and resentment against defendant in the minds of the jury.” 159 A. L. R. p. 1420. Ewbank’s Indiana Criminal Law, Symmes Ed., *123Vol. I, sec. 395, p. 246; Underhill’s Criminal Evidence, 5th Ed., sec. 117, p. 212, 222.
In 159 A. L. R. p. 1414, it is said that so long as such photographs are relevant, they are admissible, even though they may be repulsive or gruesome in effect. In part it says:
“The generalizations above referred to have been specifically applied with respect to homicide cases involving the admissibility in evidence of photographs of the corpses of the victims of the homicide or of various parts of their bodies, in which it was held that such photographs were admissible in evidence for various purposes, such as showing the nature and location of the wounds or the position of the body, as well as to corroborate the prosecution’s theory as to the motive prompting the infliction of the lethal blow or to refute defendant’s plea of self-defense, to prove the identity of deceased, etc., all of which will be discussed in more detail in other subdivisions of this annotation.”
The doctor who performed the autopsy was also the deputy coroner. He referred to the pictures taken at the mortuary, to which objections were made. He testified that there were no observable blows or cuts about the head of the wife except one, which was not fatal; that the cause of death was multiple lacerations, stabs and cuts about the breast and abdomen. The pictures all show the wounds. The doctor, in one picture, with instruments, shows the depth of the major wound. Referring to these exhibits he testified in part:
“A. There was an extensive laceration crossing the chest and pentrating the chest cavity, cutting through some of the ribs on the right and left chest cage.
“Q. When you conducted your examination in that area, did you have to make any incisions or anything like that to examine any of the vital organs?
*124“A. It wasn’t necessary to make a further incision because the laceration was already so deep that the organs were laid open.
“Q. When you first saw the body for the post mortem, the chest area was laid open to the extent that you could examine those vital organs without any further incision by you.
Is that true?
“A. That’s correct.
“Q. In the other photograph there is shown the heart area, I believe, and there are several instruments in that photograph?
“A. This photograph shows the chest cavity opened, with a scalpel directed towards the penetrating, or perforated, rather, wound in the left ventricle of the heart.
“Q. About how long or big was that heart wound? “A. About an inch or an inch and a half long.
“Q. Would a wound of that nature cause death?
“A. That’s correct.”
These pictures are relevant to the testimony of the Doctor. The fact that they prejudiced the defendant would naturally follow and does not make them incompetent for that reason.
A defendant, because he has committed a horrible and particularly vicious crime, has no constitutional right to keep such facts from the jury which is trying him for the crime. All such evidence goes to the question of intent, motive, premeditation, and sanity which was in issue in this case, as well as the penalty to be inflicted.
“It will be borne in mind that by statute the burden of fixing the penalty in this case was upon the jury. The right of a jury to hear evidence in aggravation or mitigation of an offense was discussed in the case of Kistler v. State (1876), 54 Ind. 400, 403, 404.” Blue v. State (1946), 224 Ind. 394, p. 402, 67 N. E. 2d 377; Hawkins v. State, supra (1941), 219 Ind. 116, 37 N. E. 2d 79.
*125In this case the stab and slashing wounds which were inflicted upon the bodies of both the wife and little daughter at the same time were extremely violent and horrible. That was part of the crime committed and was part of the res gestae. The character of the injuries was relevant in determining the extent and nature of the deadly attack on his wife and child. The evidence shows he first stripped the clothing entirely from his wife’s body. The evidence further shows he had not been drinking and was sane.
If pictures of true conditions may be excluded solely because they are shocking and gruesome, then such a rule would logically apply to any other evidence, although relevant, merely because it also upset or shocked the feelings of a jury. This rule can not be limited merely to pictures.
If whether or not evidence arouses the prejudice and emotions of a jury, regardless of its relevancy, is to be the standard of admissibility, then the fact that the victim was his wife; that she was crying when her husband first saw her in the basement the morning of the crime; that he stripped her clothes from her before he killed her; that the little daughter interfered, saying “No, daddy, no,” all should have been excluded, because such evidence tends to arouse the passions and emotions of a jury and does not directly prove he killed her. Likewise, evidence of all the blows struck except the fatal one should have been excluded, as well as pictures of such wounds, on the same reasoning. We could go on ad absurdumuntil all the realism of the fatal events has been excluded from the jury except the fatal blow.
In the Hawkins Case an attempt was made by the defendant to admit the death was caused by a blow *126(the corpus delicti) in order to prevent the State from proving the nature of the violence and the viciousness of the acts of the defendant in the horrible crime he committed. The contention was made there that it was not “necessary” for the State to introduce the photographs, just as in the majority opinion it is said, “they were unnecessary and were introduced only for the purpose of inflaming the jury’s emotions.” [Our italics.] This court in that case disposed of that question by saying that the defendant can not deprive the State of the right to show the dreadful and shocking acts which the defendant employed, since it is a matter for the jury to take into consideration in fixing the penalty. We said:
“We have read carefully all the evidence and are satisfied that the jury could reasonably have reached no other conclusion as to guilt, though the penalty to be inflicted doubtless depended in some degree upon emotional reaction to the evidence.” [Our italics.]
That case cites with approval 9 Wigmore on Evidence, 3rd Ed. sec. 2591, p. 589:
“Nevertheless, a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence', furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases), so as to be technically but not practically a waiver of proof . .
Some may say such exclusions create a “fair” trial. It is neither fair to the defendant nor the State representing the general public. Such a rule cuts both ways. There are times when emotional factors create extenuating circumstances and the jury has the right to get a true and complete picture of all the facts which go *127to make up the alleged crime. That is the purpose and reason for a jury in a trial.
Sympathy for the guilty and indifference for the victim (present and future ones) of crimes are far too common. It encourages the opinion that the purpose of the rules of evidence is to show mercy towards those guilty of crimes and give them a sporting chance to escape by artificially handicapping the prosecution for crimes. On the contrary, the object of the rules governing a criminal trial is to reveal, so far as constitutional safeguards will permit, the actual facts to the jury that are relevant to the guilt or innocence of the defendant, the severity of the crime, as well as the punishment to be imposed if guilty.
If an accused created the “horrible sight” constituting the crime, the jury should know all about how terrible it was. Society owes him no protection from the consequences of his own viciousness and depravity in the commission of his crimes. The rule announced in the majority opinion substantiates the belief that the more horrible and shocking the acts in the commission of a crime, the more likely is the guilty party able to escape conviction through the exclusion of such evidence “because it would prejudice the jury.”
An accused, it goes without saying, should be protected against evidence which is not relevant, and evidence should be particularly scrutinized as to relevancy if it tends to excite the emotions. Yet, if relevant, the jury is entitled to assert its righteous indignation over a particularly revolting crime.
As we have said previously, the majority opinion upsets the well established principles in Indiana with reference to the admissibility of photographs. In doing this it ignores the Indiana law and goes outside the *128State in a hunt for precedent. The majority opinion cites a Kentucky case, Craft v. Commonwealth (1950), 312 Ky. 700, 229 S. W. 2d 465, and says that court rejected a photograph because the picture of the autopsy showed the wound was sewed together. The majority opinion also cites an Alabama case, McKee v. State (1947), 33 Ala. App. 171, 31 So. 2d 656, for the proposition that a picture of an autopsy showing an open incision made to discover the cause of death was not admissible. May we assume from the citation of these two cases with approval that no incisions or wounds, open or sewed up, are competent for a jury to view, since they appear too repulsive and gruesome, even though such incisions were necessary to discover with certainty the cause of death? Must the jury take only the colorless words of a physician, using in many instances highly technical language such as “trauma” for “blow” and “contusion” for “bruise” and other strictly medical terminology as their only means for determining the character, location, size, etc. of the wounds inflicted, when a picture would reveal the facts much more accurately? Are the feelings and sensibilities of the jury now to be the determining limitation upon the admissibility of evidence, rather than relevancy? The cutting down on a full and complete disclosure of all the facts in a case is dangerous tampering and too likely to result in a miscarriage of justice in another case.
In a Montana case cited in the majority opinion to support its reasoning, pictures were rejected, the majority opinion says, because the Doctor decided “he did not need the photographs to establish his findings.” Shall we assume, since this case is cited with approval, that a physician should determine what the jury shall see or hear in a case of this sort? The same case also *129held that colored pictures were not admissible because they were calculated to arouse the sympathies and prejudice of the jury. Are we to assume as a result of the approval of that case that colored pictures are not admissible in courts in Indiana any longer even though they are more realistic and exact in their representation of the facts, than the black and white pictures which can not be truly accurate in that respect?
In another Kentucky case offered by the majority opinion for the result which it reaches, it is held that not even the shirt of the victim which showed the bullet holes was admissible. Such a principle is absolutely contrary to the long established precedent in Indiana. Johnson v. State (1929), 201 Ind. 264, 167 N. E. 531; Story v. The State (1885), 99 Ind. 413; Davidson v. The State (1893), 135 Ind. 254, 34 N. E. 972; Siberry v. The State (1893), 133 Ind. 677, 33 N. E. 681; Hawkins v. State, supra (1941), 219 Ind. 116, 37 N. E. 2d 79.
We can see no reason for going to Kentucky or any of the other states for precedent to decide this case with the law so set forth in well reasoned Indiana cases. Hawkins v. State, supra (1941), 219 Ind. 116, 37 N. E. 2d 79; Wahl v. State, supra (1951), 229 Ind. 521, 98 N. E. 2d 671; Hicks v. State, supra (1938), 213 Ind. 277, 11 N. E. 2d 171; Thrawley v. State, supra (1899), 153 Ind. 375, 55 N. E. 95; Blue v. State, supra (1946), 224 Ind. 394, 67 N. E. 2d 377; McDonald v. State (1954), 233 Ind. 441, 118 N. E. 2d 891; Deal v. The State (1895), 140 Ind. 354, 39 N. E. 930; Anderson v. State (1933), 205 Ind. 607, 186 N. E. 316.
It appears to us the cases used are unusual and rather freakish and deviate from the vast majority of opinions to the contrary. This court, by citing with approval and quoting from these cases, makes them *130an authority in Indiana law. Therefore, regardless of how relevant and material a picture may be regarding the injuries inflicted upon a victim in a criminal case, if it shocks the sensibilities of the jury or arouses their righteous indignation because of the viciousness and awfulness of the crime committed by the defendant, the pictures are not admissible. It would follow that oral testimony about facts which the pictures reveal should likewise be excluded.
A murder trial or a rape case is never a Sunday School picnic and can not be turned into such. We can not say this better than the statement quoted with approval in the Hawkins Case (pp. 132-133) :
“Such a subject is never a nice one to investigate. Any of the details have a decided tendency to horrify and to appall; but a court can not arrange for lively music to keep the jury cheerful while the state’s case in a murder trial is being presented, and gruesome evidence can not be suppressed merely because it may strongly tend to agitate the jury’s feeling.”
This was the Indiana Supreme Court speaking in 1941 on a question of the kind here.
All evidence is relevant which throws or tends to throw any light upon the guilt or innocence of the defendant or goes to aggravate or mitigate the crime when the jury has to fix the punishment.
“. . . When evidence tends to prove a fact, however slight that tendency may be, it is admissible. That is the only guide the court can have in determining the admissibility of evidence.” Deal v. State, supra (1895), 140 Ind. 354, p. 373, 39 N. E. 930; Anderson v. State, supra (1933), 205 Ind. 607, 186 N. E. 316; Blue v. State, supra (1946), 224 Ind. 394, 67 N. E. 2d 377; Underhill on Criminal Evidence, 2nd ed. p. 164.
The matter of rejection or admission of evidence, if *131relevant, is not a matter of judicial grace. It is a matter of right, whether it be the State or the defendant.
As a court of appeals we have no power to weigh the evidence. This is solely the province of the jury and the trial court on a motion for a new trial. The trial judge was present. He knew the situation in a way that can not be translated into the record. If these photographs went to prove how the victim died they were relevant. We have no right to decide after a prosecuting attorney has introduced sufficient evidence to meet the minimum requirements of his case that no other evidence is admissible because it was not “necessary.”
The majority opinion charges that the “purpose” and “object” of the photographs was to prejudice the jury. This is a matter of opinion. We, as a court of appeals, have no right to draw that conclusion if the evidence of the autopsy was relevant.
The majority opinion finally lectures the prosecutor as to his duty and overrules the trial court, although all they did was follow the law as set forth in Hawkins v. State, supra. How did the trial court and prosecuting attorney know that this court would repudiate that case and rely upon some unusual cases from other jurisdictions such as Alabama, Montana and Kentucky? How could the trial court correct an alleged error if no objection was made before it on the ground that the photographs were not a correct and true representation assuming it to be true?
Our sympathies go out to a condemned man, but the law should follow established rules and principles and be no respecter of persons.
Note.—Reported in 153 N. E. 2d 899.