The opinion of the court was delivered by
Yoorhees, J.
"With this writ the defendant has not caused to be returned the entire record of the proceedings had npon the trial, pursuant to section 136 of the Criminal Procedure act. Comp. Stai., p. 1863.
Our consideration of the case must therefore be confined to the questions raised by the strict bill of exceptions.
It appeared that upon a superficial examination of the body of the deceased made on the day of the murder by the coroner, who is a physician, that bruises or abrasions of a bright red color were discovered upon' her genital organs. It also appeared that the face had been mutilated beyond recognition. The body had been buried some three days after the death, and, on November 1st, some fifteen days thereafter, had been exhumed, and an autopsy then first performed. An examination was then also made by means of a swab to determine whether spermatozoa were present, in order to ascertain whether the woman had been raped. '
The physician performing this operation, not the coroner, testified upon the trial that “there were markings upon each side of the neck which in my opinion were produced by the fingers.” This force, he said, had constricted or pressed upon the parts in a manner to produce, before death, certain signs and markings which, from his’ experience, are found in suffocation, and gave it as his opinion that death was caused by [184]*184throttling. He further said he found no spermatozoa or semen on her drawers, and that the injuries to the face were produced after death.
The following testimony appears:
Question by the prosecutor—
“Q. Did you remove any part of the body of Mary Strong?
"A. I removed some of the parts; yes, sir.
"Q. Have you a specimen at the present time of her body ?
“A. Yes.
“Q. What part of her body?
“A. I have the neck, which shows the finger markings very plainly at the present time.
“Mr. Wescott — The state tells me they are going to produce a horrible picture here, the woman’s neck. We object to that. We object to it, first upon a moral basis. It is not necessary to do that. Nobody questioning the fact that this witness has testified to, we do not want the degradation and moral sickening that must come from an exhibition of this sort. On legal grounds we object to it because, if part of the body is to be shown, we want the whole of it. The whole of the woman’s body is just as important as any part of it, and the evidence already before your honor shows that that is so, and I think the state ought not to be permitted to cut off the head of this woman and bring it here before this jury. If they are going to insist upon doing that, we think they must produce the whole bodj', otherwise we object to it.
“Mr. Schwinghammer — It is necessary for the state to prove that Mary Strong met her death by suffocation or throttling, among other things, to bear out the confession which Strong made, and the specimen is undoubtedly a proper exhibit to be brought before the court if there is reason shown for it. Our reason we say is that the marks appear distinctly on the throat, showing the cause of death to have been by throttling and strangulation, and not by the chopping of the head. Eirst, I want to ask preliminary questions. We are not offering it at the present time.”
The specimen was the neck from the chin down. The medical witness was then- allowed to -stand aside and oral [185]*185proof was given to show' that since the time of death, no marks had been made upon that part of the body; that after exhumation it had been in the custody of the state’s representatives, and that the marks upon the neck had been seen at the time of the coroner’s inquest. The offer of the specimen was renewed, and again objected to, on the ground that the rest of the body was just as material, and that the wdiole body might disclose many circumstances and conditions which would throw light upon the case. The specimen wras then admitted and an exception allowed and sealed.
That real, or, as it is sometimes called autoptical evidence, is a legitimate means of proof is well recognized. Professor Wigmore says, section 1151, “accordingly it might he asserted, a priori, that where the existence or the external quality, or condition of a material object are in issue or are relevant to the issue, the inspection of the thing itself, produced before the tribunal, is always proper, provided no specific reason of policy or privilege bears decidedly to the contrary.”
That such evidence in criminal cases tends to produce an unfair prejudice against the accused is usually now denied by the court, although the production of repulsive objects may, in the discretion of the court, be excluded.
Our courts have recognized in a bastardy ease the probative force of the resemblance of a child to its putative father (Gaunt v. State, 21 Vroom 490; Commonwealth v. Brown, 14 Gray 419), was an indictment for unlawful attempt to procure abortion. The court said: “The parts of the person upon whom instruments were alleged to have been used for the purpose of procuring an abortion, which had been preserved, were property allowed to be submitted to the inspection of the jury in connection with the testimony of the physician whio made the post-mortem examination.” In the following cases, portions, of the human body have been admitted in evidence: State v. Vincent, 24 Iowa 570;, State v. Wieners, 66 Mo. 13; State v. Murphy, 118 Id. 7; Savary v. State, 62 Neb. 166; Turner v. State, 89 Tenn. 547.
[186]*186But the objection in the case sub judice is much deeper. The body not only contained the marks upon the neck alluded to> but the face furnished evidence of mutilation. That this had been done after death had ensued by strangulation, had been asserted by the expert. Moreover, it was admitted that the sexual organs were injured, giving rise to the theory that death had been caused in an attempt to perpetrate rape. This was so plausible that an examination had been made to determine that fact, a fact which, if true, would be incompatible with the guilt of the husband of the deceased woman. So, it appeared that not only the neck, but the face as well as the private- parts of the body, were each relevant to the issue being tried.
That strangulation caused death was necessary to sustain the alleged confession, and without such proof of the corpus delicti, the confession was bereft of evidential value. State v. Guild, 5 Halst. 163. But for the confession, the proof was entirely circumstantial, and in that posture of affairs, the marks upon the body, other than the neck, were important to the defendant to break the force of that character of evidence, by tending to show facts inconsistent with it. By the control which the state-had over the body, it was put out of the power of the defendant to produce the other marks. The body was a single piece of evidence.
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The opinion of the court was delivered by
Yoorhees, J.
"With this writ the defendant has not caused to be returned the entire record of the proceedings had npon the trial, pursuant to section 136 of the Criminal Procedure act. Comp. Stai., p. 1863.
Our consideration of the case must therefore be confined to the questions raised by the strict bill of exceptions.
It appeared that upon a superficial examination of the body of the deceased made on the day of the murder by the coroner, who is a physician, that bruises or abrasions of a bright red color were discovered upon' her genital organs. It also appeared that the face had been mutilated beyond recognition. The body had been buried some three days after the death, and, on November 1st, some fifteen days thereafter, had been exhumed, and an autopsy then first performed. An examination was then also made by means of a swab to determine whether spermatozoa were present, in order to ascertain whether the woman had been raped. '
The physician performing this operation, not the coroner, testified upon the trial that “there were markings upon each side of the neck which in my opinion were produced by the fingers.” This force, he said, had constricted or pressed upon the parts in a manner to produce, before death, certain signs and markings which, from his’ experience, are found in suffocation, and gave it as his opinion that death was caused by [184]*184throttling. He further said he found no spermatozoa or semen on her drawers, and that the injuries to the face were produced after death.
The following testimony appears:
Question by the prosecutor—
“Q. Did you remove any part of the body of Mary Strong?
"A. I removed some of the parts; yes, sir.
"Q. Have you a specimen at the present time of her body ?
“A. Yes.
“Q. What part of her body?
“A. I have the neck, which shows the finger markings very plainly at the present time.
“Mr. Wescott — The state tells me they are going to produce a horrible picture here, the woman’s neck. We object to that. We object to it, first upon a moral basis. It is not necessary to do that. Nobody questioning the fact that this witness has testified to, we do not want the degradation and moral sickening that must come from an exhibition of this sort. On legal grounds we object to it because, if part of the body is to be shown, we want the whole of it. The whole of the woman’s body is just as important as any part of it, and the evidence already before your honor shows that that is so, and I think the state ought not to be permitted to cut off the head of this woman and bring it here before this jury. If they are going to insist upon doing that, we think they must produce the whole bodj', otherwise we object to it.
“Mr. Schwinghammer — It is necessary for the state to prove that Mary Strong met her death by suffocation or throttling, among other things, to bear out the confession which Strong made, and the specimen is undoubtedly a proper exhibit to be brought before the court if there is reason shown for it. Our reason we say is that the marks appear distinctly on the throat, showing the cause of death to have been by throttling and strangulation, and not by the chopping of the head. Eirst, I want to ask preliminary questions. We are not offering it at the present time.”
The specimen was the neck from the chin down. The medical witness was then- allowed to -stand aside and oral [185]*185proof was given to show' that since the time of death, no marks had been made upon that part of the body; that after exhumation it had been in the custody of the state’s representatives, and that the marks upon the neck had been seen at the time of the coroner’s inquest. The offer of the specimen was renewed, and again objected to, on the ground that the rest of the body was just as material, and that the wdiole body might disclose many circumstances and conditions which would throw light upon the case. The specimen wras then admitted and an exception allowed and sealed.
That real, or, as it is sometimes called autoptical evidence, is a legitimate means of proof is well recognized. Professor Wigmore says, section 1151, “accordingly it might he asserted, a priori, that where the existence or the external quality, or condition of a material object are in issue or are relevant to the issue, the inspection of the thing itself, produced before the tribunal, is always proper, provided no specific reason of policy or privilege bears decidedly to the contrary.”
That such evidence in criminal cases tends to produce an unfair prejudice against the accused is usually now denied by the court, although the production of repulsive objects may, in the discretion of the court, be excluded.
Our courts have recognized in a bastardy ease the probative force of the resemblance of a child to its putative father (Gaunt v. State, 21 Vroom 490; Commonwealth v. Brown, 14 Gray 419), was an indictment for unlawful attempt to procure abortion. The court said: “The parts of the person upon whom instruments were alleged to have been used for the purpose of procuring an abortion, which had been preserved, were property allowed to be submitted to the inspection of the jury in connection with the testimony of the physician whio made the post-mortem examination.” In the following cases, portions, of the human body have been admitted in evidence: State v. Vincent, 24 Iowa 570;, State v. Wieners, 66 Mo. 13; State v. Murphy, 118 Id. 7; Savary v. State, 62 Neb. 166; Turner v. State, 89 Tenn. 547.
[186]*186But the objection in the case sub judice is much deeper. The body not only contained the marks upon the neck alluded to> but the face furnished evidence of mutilation. That this had been done after death had ensued by strangulation, had been asserted by the expert. Moreover, it was admitted that the sexual organs were injured, giving rise to the theory that death had been caused in an attempt to perpetrate rape. This was so plausible that an examination had been made to determine that fact, a fact which, if true, would be incompatible with the guilt of the husband of the deceased woman. So, it appeared that not only the neck, but the face as well as the private- parts of the body, were each relevant to the issue being tried.
That strangulation caused death was necessary to sustain the alleged confession, and without such proof of the corpus delicti, the confession was bereft of evidential value. State v. Guild, 5 Halst. 163. But for the confession, the proof was entirely circumstantial, and in that posture of affairs, the marks upon the body, other than the neck, were important to the defendant to break the force of that character of evidence, by tending to show facts inconsistent with it. By the control which the state-had over the body, it was put out of the power of the defendant to produce the other marks. The body was a single piece of evidence. If admissible, it was admissible as to all its parts, so far as any part supplied a piece of evidence.
As an instrument of evidence in this case, it should have been offered as an entirety, or at least none of the evidential parts should have been excluded, and one, only selected by tire state to support its particular theory admitted in evidence. . If the finger marks were evidential, so were the bruises and other marks, and especially did the latter make strongly for the innocence of the defendant whose perpetration of a sexual assault against his wife is unthinkable, and might, have convinced the jury that the perpetrator, other than the husband, in seeking to gratify his passions, had choked his victim.
[187]*187Where, in a criminal case, a specimen or exhibit contains more than one mark or external appearance relevant to the issue being tried, a part only of such specimen, or exhibit, containing but one of such marks selected for the purpose, by the party offering it, is not admissible. For this error, which we think was harmful to the defendant, there must be a reversal.
A series of photographs taken on November 25th were offered by the state, and over objection admitted in evidence. The prosecutor stated that they had been taken some time after the murder and after quite some changes had taken, place. The objection proceeded upon the ground that they did not show conditions as they existed at the time of the murder and were misleading.
They were admitted for the purpose of showing the conditions as they existed on the day they were taken. There was no other proof. It was not shown what changes had taken place. Under such circumstances, they should have been excluded as irrelevant.
The learned trial judge had before him evidence of the voluntary character of the confession, and having decided upon it, preliminarily to admit it, we are not- to review that question on error (State v. Zeller, 48 Vroom 619; Manda v. City of Orange, 53 Id. 686), as we might have done upon a rule to show cause.
Since the reversal of this conviction may lead to a retrial, we cannot forbear to characterize this confession and the circumstances under which it was obtained as suspicious. It was given to a rvoman who, under oath, stated that at her first interview, by supernatural power, she saw the occurrences attending the murder and the participation of the defendant in it. That she should have had such sight and knowledge is incredible. It is contrary to all human experience to account for her utterances on that occasion as detailed in the testimony of what took place at the time of the murder, if they did occur, unless she had been informed by word or reading it before that time. No proof was given whether she knew Strong when he first went to her. If she knew him, it [188]*188was easy for her to have “seen” the tragedy. Three days had then elapsed since the body had been exhumed and the autopsy had taken place. Moreover, she admitted that she had read of the murder at the time of its commission. Having claimed on the witness stand, her supernatural powers is quite enough to weaken the force of her testimony as to the confession made at the second prearranged interview. That she dominated the defendant in his admitted feeble condition, and put words in his mouth, by suggesting answers to her questions, seems apparent.
The judgment will be reversed and the record remitted, to the end that a vmire, de novo may issue.