State v. . Gardner

46 S.E.2d 824, 228 N.C. 567, 1948 N.C. LEXIS 296

• Court: Supreme Court of North Carolina
• Decided: March 17, 1948
• Status: Published

Opinion

WiNBORNE,-J.

Defendant in brief filed in this Court, expressly abandons her assignments of error based upon exceptions taken to denial of motion made when-the State first rested its case, and renewed at the close of all the evidence for judgment as of nonsuit on tbe charge of murder in the second degree. And the record shows no exception, or assignment of error based upon exception to the charge of the court to the jury.

The questions presented by defendant on this appeal are predicated upon exceptions (1) to rulings of the court in respect to each of three photographs offered by the State, (2) to the court interposing question as to how defendant struck deceased, (3) to the admission of evidence as to defendant showing a lack of remorse, and (4) to description of the room in which the fatal blow was inflicted.

However, after careful consideration of each point so raised by defendant, prejudicial error is not made to appear.

•(1) Defendant makes practically the'same argument, and advances substantially the same reasons in her complaint as to the action of the trial judge in allowing the State to offer each of the three photographs, Exhibits S-I, S-2 and S-4. It is argued and contended that there is no sufficient proof of the authenticity or accuracy of the photographs, that they are not material and relevant, that they were not used to illustrate the witness’ testimony, and that they are solely calculated to excite prejudice against defendant, — particularly since women were on the jury.

The decisions of this Court uniformly hold that in the trial of eases, civil ór criminal, in this State, photographs may not be admitted as substantive evidence, Honeycutt v. Bride Co., 196 N. C., 556, 146 S. E., 227; S. v. Perry, 212 N. C., 533, 193 S. E., 727, hut that where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy. S. v. Jones, 175 N. C., 709, 95 S. E., 576; Elliott v. Power Co., 190 N. C., 62, 128 S. E., 730; S. v. Holland, 216 N. C., 610, 6 S. E. (2d), 217; S. v. Wagstaff, 219 N. C., 15, 12 S. E. (2d), 657; S. v. Miller, 219 N. C., 514, 14 S. E. (2d), 522; S. v. Shepherd, 220 N. C., 377, 17 S. E. (2d), 469; S. v. Mays, 225 N. C., 486, 35 S. E. (2d), 494; S. v. Stanley, 227 N. C., 650, 44 S. E. (2d), 196.

In the Elliott case, supra, the Court says: “Plaintiff excepted-because certain pictures were submitted to the jury. All of these pictures were used to explain the witnesses’ testimony to the jury. It was not error for the court to allow the jury to consider the pictures for this purpose and to give them such weight, if any, as the jury may find they are entitled to in explaining the testimony.”

Ordinarily photographs are competent to be used by, a witness to explain or to illustrate anything it is competent for him to describe in words.

Tbe accuracy of a photograph must be shown by extrinsic evidence that the photograph is a true representation of the scene, object or person it purports to portray. 20 Am. Jur., Evidence, Sec. 730; S. v. Mitchem, 188 N. C., 608, 125 S. E., 190; Pearson v. Luther, 212 N. C., 412, 193 S. E., 739. 32 C. J. S., Evidence, Sec. 715. Wigmore on Evidence, 3rd Ed., Vol. 3, Sec. 793.

The correctness of such representation may be established by any witness who is familiar with the scene, object, or person portrayed, or is competent to speak from personal observation. It is not necessary to prove this fact by the photographer who took the photograph. Banc v. R. R., 171 N. C., 328, 88 S. E., 477; White v. Hines, 182 N. C., 275, 109 S. E., 31; S. v. Matthews, 191 N. C., 378, 131 S. E., 743; S. v. Stanley, supra.

Whether there is sufficient evidence of the correctness of a photograph to 'render it competent to be used by a witness for the purpose of illustrating or explaining his testimony is a preliminary question of fact for the trial judge. S. v. Matthews, supra.

Moreover, if the testimony sought to be illustrated or explained be relevant and material to any issue in the case, the fact that an authenticated photograph is gory, or gruesome, and may tend to arouse prejudice will not alone render it incompetent to be so used.

In the light of these principles, applied to the present ease, it appears from the record thát the evidence as to the accuracy of the photographs to portray the condition of the house after the homicide, the body as found, and the wound on the body, is sufficient to render them competent for use in illustrating the testimony of the witnesses testifying to their accuracy, for which purpose their admission was expressly limited; that they were not admitted as substantive evidence; and that they were relevant to material matters in issue in the case. But the record indicates a paucity of use for the purpose for which they were offered. Nevertheless, it does not appear on this record that this was prejudicial error.

As to the relevancy of the photographs: The testimony of the witnesses as to the bloody condition of the room, and of the nature of the wound has relation to the character of the attack made by defendant upon the deceased, and that has bearing on the question of self-defense upon which defendant relied. It tends to indicate that she used excessive force, and that the attack was vicious. Thus the photographs were competent for use in illustrating this testimony. And the photograph, Exhibit S-2, was competent for use in illustrating the testimony of the witness bearing upon corpus delicti. See S. v. Miller, supra.

Moreover, the fact that the photograph showing the wound, described by the doctor, was taken in the morgue, after the body had been cleansed, does not of itself make it incompetent for use in illustrating the testimony of the doctor. See Scott’s Photographic Evidence, See. 661, at p. 576.

(2) Regarding the assignment of error based upon the court interposing questions as to how defendant struck deceased: The complaint here is that “the trial judge not only put the words in the witness’ mouth by saying ‘Give a step like that and hit him,’ but then asked how by demonstration, saying ‘Give a step like that and hit him.’ ” It is contended that in this way the trial judge expressed or manifested an opinion

■ forbidden by law. However, the regret of inability “to bring a sound movie and establish before the appellate court the movements of the judge as well as his words” in this incident, seems to be a concession by defendant that the record does not show error. It discloses only the words, leaving all else to imagination. Hence error is not made to appear here.

(3) In reference to the admission of evidence as to defendant showing a lack of remorse: It may be conceded that this question is improper, and that objection to it should have been sustained. Yet when it is considered with the testimony immediately preceding, we fail to find in it error of sufficient prejudicial import to warrant a new trial.

(4) The assignment of error directed to the description of the room in which the fatal blow was inflicted may not be sustained. The evidence indicated great flow of blood immediately following the blow, and that had bearing upon the character of the wound inflicted by defendant upon deceased, and was relevant to be considered by the jury on defendant’s plea of self-defense. Moreover, other evidence of like purport was admitted without objection.

Finally, after full consideration of every reason advanced for error, assigned on this appeal, we find no cause to justify the disturbing of the verdict rendered. Hence, in the judgment below there is

No error.