(dissenting) — In my opinion, this court has at last been presented a case in which the defendant has been able to show that the trial court abused its discretion in admitting inflammatory photographs, and a new trial should be ordered.
The majority seems to feel that, because we have never found that the introduction of photographs constituted prejudicial error, we are committed to the philosophy that the trial court’s exercise of discretion on such matters is not subject to review. The trouble is, I fear, that every time we refuse to reverse in a doubtful case, the impression is created that the prosecutor is free to go a little further next time. I also fear that, if this trend is allowed to continue, pictorial appeals to the emotions of the jury may become an accepted substitute for proof that the defendant committed the crime.
The rule should be that photographs having a tendency to inflame the passions of the jury should be admissible only if they are actually probative on some element of the crime, and if they have not been unnecessarily distorted.
*682We have in this case what appears to me to be an example of deliberate and totally unnecessary distortion. I do not mean that an autopsy was unnecessary, or that the jury was not entitled to know the results of the autopsy. I do mean that the inflammatory photographs were unnecessary because the prosecutor’s and/or the investigators’ photographers were on the scene and secured photographs which accurately and extensively portrayed the condition of the body as it was left at the scene of the crime and the nature of the wounds. These matters were adequately portrayed in photographs introduced at the trial and to which the defendant offers no objection.
I readily acknowledge that the prosecutor was entitled, if not required, to prove in detail how the death resulted from the wounds. But this was not done by showing pictures. It was done by medical testimony. In fact, it was a picture of the victim with the black eyes which created the apparent ambiguity which the prosecutor felt it was necessary to have resolved by medical testimony that blows from the rear would cause this condition.
If the jury could not understand the simple medical testimony on this, how was it to analyze an opened skull with the scalp laid back and the brains spilling out? The fact is that there was no issue in this case regarding the cause of the death of the victim, the instrument which inflicted it, or the manner in which it was wielded. Of course, it was incumbent upon the prosecutor to prove these things, but he made this proof by other extensive and uncontradicted evidence. The only serious question concerned the identity of the killer. These photographs threw not one flicker of light on that subject.
It is interesting that the majority refrains, whether carefully or unconsciously I need not speculate, from giving any description of the photographs. Some description is necessary if the opinion of the court is to have any meaning for the reader. In the first place, it must be noted that all of the photographs were color slides, which showed the victim’s mutilated body in vivid color, as hereinafter described.
*683There were eight pictures depicting the victim, some showing her head before the cleaning away of dried blood and some showing her head after the autopsy surgeon had cleaned away the blood (state’s exhibits, 113, 114, 115 and 116). Exhibit 111 is of the interior of the skullcap after it had been removed and shows the shape and size of a fracture. While none of these are particularly pleasant to view, they are, to borrow a phrase from the Pennsylvania court in Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271 (1968), a veritable Michaelangelo compared to the other pictures. The other pictures (exhibits 109, 110 and 112) show the victim’s head after the scalp has been peeled forward (110 and 112) and after the skull cap has been removed. Exhibits 110 and 112 are a grisly view of the excised scalp and bloody hair. Exhibit 109 is a direct view into the empty cranial cavity after the skull cap had been removed and the brain extracted. The picture also shows the disemboweled corpse and displaced entrails.
It is these last three pictures which, in my opinion, were so inflammatory that any relevancy they may have had was totally obscured by their tendency to arouse the emotions of the jury rather than to expedite its thinking processes.
While it is true that, as we have stated more than once, a picture is not rendered inadmissible simply because it is gruesome, it is also true that a picture should have some valid tendency to throw light on the issues before the jury; and if the amount of light which it can throw is so minimal that its apparent object is to inflame rather than to enlighten, we should hold the admission of such a picture an abuse of judicial discretion.
Courts in other jurisdictions, faced with similar questions, have so held. As the majority observes, the test of admissibility is whether the probative value of the pictures outweighs their probable prejudicial effect. Photographs which show the body of the deceased after autopsy have frequently been held inadmissible upon this ground (see Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958) and cases cited therein) particularly when they are used to *684illustrate a physician’s testimony which was not disputed and could have been easily presented without the aid of the photographs. See State v. Bischert, 131 Mont. 152, 308 P.2d 969 (1957); People v. Lefler, 38 Ill. 2d 216, 230 N.E.2d 827 (1967).
It is true that the autopsy surgeon in this case said that the slides would be “most helpful” in presenting his testimony, but he did not state that they were necessary to his testimony. The difference between “most helpful” and “necessary” is a real one, and when the inflammatory nature of a photograph is obvious, and where, as here, it shows the body of a victim mutilated, not by the defendant alone but by the surgeon’s knife, a sound exercise of discretion should incline the court to exclude it.
In my opinion, the autopsy surgeon’s testimony in this case was simple enough to be understood by any juror. Graphic illustrations were not needed; and even if they were, those which were presented were far more gruesome than was necessary to illustrate the doctor’s points. The doctor did not say they were necessary but only that they would be “helpful.” A drawing would have done as well without the concomitant appeal to the passions of the jury. These photographs did not depict the body in the condition in which it was left by the killer and they were not needed to fortify the prosecution’s case on a disputed issue of fact. In short, their prejudicial effect outweighed their probative value, if they had any at all.
None of the cases cited in the majority opinion, which have been decided by this court, involved pictures so unnecessarily gruesome and of such questionable relevance as those to which the appellant objected in this case. In State v. Hawkins, 70 Wn.2d 697, 425 P.2d 390 (1967), the allegedly objectionable photographs showed the bodies of the two victims of the crime in the condition in which they were found and were held admissible to show the nature of the wounds and exactly what the investigating officers found at the scene of the homicide. There were no alleged distortions..
*685The slides and photographs to which objection was made in State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961), did indeed show the body of the victim during the autopsy. It was not the contention of the defendant that the bodies were distorted by the autopsy procedure, but that wounds appeared on it which were not there immediately after the altercation which the state maintained was the cause of the victim’s death. It was the position of the defendant that the death was due to injuries suffered in the hospital after the fight. There the exact cause of the death was an important and disputed issue and the pictures were held to be relevant and admissible as bearing upon this question. Here there was no dispute as to the cause of death.
In State v. Griffith, 52 Wn.2d 721, 727, 328 P.2d 897 (1958), photographs of the victim taken at the scene and at the morgue were introduced in evidence and we held that they were competent
not only to establish the identity of the victim, but to show the manner in which [the victim] was killed, the existence of the marks on the wrists, the existence of intent on the part of the appellant, and to aid the jury in understanding the physical facts relevant to the crime.
There was no contention that the appearance of the body had been made more gruesome by the autopsy.
State v. Nyland, 47 Wn.2d 240, 287 P.2d 345 (1955), another case cited by the majority, was also a case in which the defendant did not contend that the appearance of the bodies had been changed after the killings. The pictures, taken at the morgue, showed the wounds and the autopsy incision, but did not show organs removed or exposed by the autopsy surgeon’s knife. In that case, the trial court had admitted only two black and white photographs and excluded others offered, apparently finding them unnecessarily inflammatory. We held that his discretion had been properly exercised.
Any statements concerning the admissibility of gruesome photographs contained in State v. Payne, 25 Wn.2d 407, 171 P.2d 227, 175 P.2d 494 (1946), is dictum, inasmuch as we held that the error, if any, could not be considered, *686no objection having been made at the time they were admitted.
The photograph introduced in evidence in State v. Hardamon, 29 Wn.2d 182, 186 P.2d 634 (1947), showed the bandaged head of an assault victim. It was, if anything, probably less inflammatory than a picture of his unbandaged head would have been. The appellant offered no showing that the trial court had abused its discretion in admitting the photograph.
The earliest case cited by the majority, State v. Smith, 196 Wash. 534, 83 P.2d 749 (1938), was concerned with the admissibility óf a photograph of the exhumed body of the victim taken 4 months after autopsy and interment. This photograph probably was the most inflammatory of any of those considered by this court in the cited cases. However, it had a particular relevance because there was a serious dispute between the prosecution and the defense as to the type of wounds inflicted by the defendant, the latter maintaining that he had only struck the deceased with his fists, and that his death was caused by his striking his head on something when he fell to the ground. It was the prosecution’s theory, however, that the defendant had used unnecessary force in repelling an attack by the deceased and had administered him a terrible beating, during which he kicked him with his heavy shoes while he was on the ground. In that case, therefore, the nature of the wounds received by the victim was of vital significance. The doctors testifying about these wounds said that they could better explain these wounds to the jury by the use of the photograph.
That case is of particular interest here, not only because the offered evidence was gruesome and the picture did not show the body as it looked at the time of or immediately, after the crime, but because it quotes at some length a passage from 2 Wharton’s Criminal Evidence § 773, at 1319-20-21 (11th ed. 1935), which this court approved as a correct, statement of the applicable rule. That quotation reads:
“It is generally stated that the locality or condition of *687the objects photographed must be the same as those that existed at the time of the commission of the crime. This is to be taken in a substantial sense, however, as a slight change in the conditions existing at the time a photograph was taken does not necessarily call for the exclusion of the photograph if it will not mislead, or tend to mislead, the jury. . . . Photographs showing the wounds of a deceased person are admissible, although they do not show or purport to show all of the wounds received which result from the commission of the homicide charged.
“Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable the witness better to describe, and the jury better to understand, the testimony concerned. 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.”
State v. Smith, supra at 543-44.
As I have mentioned, the evidence in that case, although gruesome and although the picture was taken at a time rather remote from the crime and when changes had taken place in the appearance of the victim, was relevant and material on a vital issue in the case — that is, the nature of the wounds inflicted. If the wounds were as the defendant maintained, he would probably have been able to prevail in his contention that he acted in self-defense, using no more force than was necessary; but if they were as the prosecution maintained, excessive use of force would have been established. With the use of medical testimony, aided by the photograph, the prosecution was able to prove its case to the satisfaction of the jury.
But particular attention should be paid to the fact that the defendant did not contend that the prosecution, had other photographs taken before the body was .interred;, which would have been as useful in illustrating the wounds, or that it acted in bad faith in waiting 4 months to *688exhume the body. Furthermore, one of the doctors said that the wounds were still recognizable in the photograph and that the situation could be demonstrated just as it was at the time the body was. buried.
It would be absurd to suggest that, in the case before us, the condition of the victim’s body just as it was at the time it was found could be illustrated by the photographs of the head with the cap removed, the scalp laid back, the brain extracted, and the intestines visible in the background. As the quoted passage from Wharton’s states, the general requirement is that the condition of the object photographed must be the same as that which existed at the time of the commission of the crime. While the killer in this case did inflict ugly wounds upon the victim, unquestionably causing her death, he did not lay open her skull and cause the brains to spill out and he did not cut open her abdomen. As Wharton’s says, a slight change in conditions is permissible if it will not mislead or tend to mislead the jury.
In my opinion, the relevance of the photographs showing the autopsy process in this case was so slight and their inflammatory tendencies so great, and the nature of the wounds and cause of death was so well established by other, undisputed evidence, that the only conceivable purpose in offering these color slides must have been to mislead the jury by creating an impression of a crime even more horrible than the one which was actually committed.
This was a case resting upon circumstantial evidence, and in such a case proof beyond a reasonable doubt is not easy. But, even assuming that the verdict of guilty was the only verdict which reasonable men could return, there still remains the question of the death sentence. To assume that color pictures showing the victim’s body in a condition even more horrifying than the killer left it are not likely to influence this decision of the jury, is, it seems to me, to renounce any knowledge of human nature. When a man’s life is at stake, even that of a man who has himself committed a heinous crime, this court should be meticulous in its concern that he receive a fair trial. Placing before the jury these sickening photographs, whose only legitimate value *689could be to further prove that which had already been proved beyond the shadow of a doubt many times over, could only result in the denial of such a trial.
It is time that some limitations are placed upon the use of the art of photography in swaying the jury. If the text which is so frequently cited — Is the minute peg of relevancy totally obscured by the dirty linen hung upon it?— ever required the exclusion of photographs, it required the exclusion of these.
I would reverse and order a new trial.
Hill, Weaver, and Hamilton, J J., concur with Rosellini, J.
November 24, 1969. Petition for rehearing denied.