Hurst v. State

• Decision Date: 15 April 1965
• Docket Number: 8 Div. 188
• Citation: 277 Ala. 686,174 So.2d 325
• Parties: Shelman HURST v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 325

174 So.2d 325

277 Ala. 686

Shelman HURST v. STATE of Alabama.

8 Div. 188.

Supreme Court of Alabama.

April 15, 1965.

Kenneth Shelton and Thos. A. Caddell, Decatur, for appellant.

Richmond M. Flowers, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

SIMPSON, Justice.

The appellant, Shelman Hurst, was indicted by the Grand Jury of Morgan County for the offense of murder in the second degree. Counsel was appointed to represent him. A plea of not guilty was entered and trial was held. The jury returned a verdict of guilty as charged in the indictment and fixed punishment at 30 years in the penitentiary. This appeal followed.

Appellant argues that the court erred in admitting into evidence a photograph of the deceased victim taken by the State Toxicologist at the time an autopsy was performed. The appellant claims error on the part of the court in admitting this photograph on the grounds that it shows more of the surrounding body than was necessary to show the knife wounds from which the State Toxicologist testified the victim died; that it tended to inflame the minds of the jurors and because it was taken three days after the incident causing death.

We have examined the picture. It is a photograph of the deceased's body lying on its back. It shows deceased's entire body from the head to a point just above the pelvic area. It shows two wounds on either side of the upper abdomen area, which the Toxicologist testified were the entrance wounds causing death. Also shown is a long incision vertically along the length of the abdomen which Dr. Johnson, the Toxicologist, testified was 'a surgical incision that possibly occurred after the incident in question'. All of these wounds are sewed with black silk sutures according to the testimony; the picture shows them to be sutured.

The appellant relies upon McKee v. State, 33 Ala.App. 171, 31 So.2d 656 for reversal. We do not think this case supports his contentions. There the Court of Appeals found no error in the trial court's admission of five different photographs of the deceased's body taken during the autopsy by the State Toxicologist. The autopsy there was made and the photographs were taken some eight days after death and after the body was disinterred. The Court of Appeals there observed that all of the photographs were unpleasant, stating further:

'Grewsomeness is however no grounds for excluding this type of evidence (photographs, clothing, etc.) if it has a 'reasonable tendency to prove or disprove some material fact in issue, or which at the time appeared to be probably in dispute or material' (Grissett v. State, 241 Ala. 343, 2 So.2d 399, 401), and if it illuminates the issues in any way, and is relevant, it is admissible even though possessing a tendency to inflame the minds of a jury. Grissett v. State, supra. Or, as stated by Chief Justice Anderson in Boyette v. State, 215 Ala. 472, 110 So. 812, the admissibility of this type of evidence is dependent upon whether it has 'some tendency to shed light upon some material inquiry'.'

The Court of Appeals found that five of the six photographs introduced in the McKee case met these tests, but reversed for the admission of the sixth photograph. That picture was said to be not only grewsome, but ghastly. The Court of Appeals observed:

'It shows deceased's body from the upper forehead to a point about midway of the hips. The body is lying on its back. The torso has been opened, the lower line of the dissection being at about a line drawn from the crest of the hipbones and extending to a depth of about two-thirds of the body. The incision then extends up the body to a point close to the arm pits. The thick flap of skin and fascia thus created has been...