McKee v. State, 5 Div. 485

• Decision Date: 15 December 1949
• Docket Number: 5 Div. 485
• Citation: 44 So.2d 781,253 Ala. 235
• Parties: McKEE v. STATE.
• Court: Alabama Supreme Court

Page 781

44 So.2d 781

253 Ala. 235

McKEE v. STATE.

5 Div. 485.

Supreme Court of Alabama.

Dec. 15, 1949.

Rehearing Denied Feb. 2, 1950.

A. A. Carmichael, Atty. Gen., and Jas. T. Hardin, and Wm. N. McQueen, Asst. Attys. Gen., for the petition.

Omar L. Reynolds and Reynolds & Reynolds, of Clanton, opposed.

BROWN, Justice.

The defendant Dewey Arseal McKee has been twice convicted for feloniously causing the death of his wife, first for murder in the second degree and on his last trial of manslaughter in the first degree.

In the report of the appeal from the first conviction it was stated in the opinion of the court: 'The testimony of Dr. Rehling, State Toxicologist, was the most significant presented by the state. Dr. Rehling testified that, on June 27, 1946, some eight days after her death, he disinterred Mrs. McKee's body and performed an autopsy thereon. His dissection was confined to the chest and abdominal cavities. Prior to dissection the body bore a number of bruises and abrasions, one being the left center of the forehead at the hair line, dark in color and about one and one half inches in diameter; there was a skin abrasion about one inch long and a quarter of an inch wide just forward of the right ear; there were a number of spot bruises on the outer aspect of the upper right arm; a group of three skin abrasions on the upper left shoulder blade area, about one eighth to three eights of an inch wide and a quarter of an inch in length; brush marks or scratches on the right leg just below the knee; at the base of the shin was a bruise; at the base of the left hip was a bruise about two or three inches in length. Under the area of this last bruise was located the spleen.

'Upon opening the abdominal cavity Dr. Rehling found that Mrs. McKee's spleen was enlarged about three times its normal size. Dr. Rehling stated that the spleen is a spongy substance, and a very tender organ in normal state. When enlarged from disease it is still more friable. He found that the spleen had been ruptured, there being a tear in it about one and one half inches long. This rupture would cause excruciating pain, vomiting, and an internal hemorrhage which would result in death within thirty minutes.

'Dr. Rehling gave as his opinion that Mrs. McKee had died as a result of this ruptured spleen, and that said rupture had resulted from an external blow.

'During Dr. Rehling's testimony, and after he had testified in detail as to the physical condition of Mrs. McKee's body at the time of his autopsy thereon, particularly as to the spleen and its condition, the state, over the strenuous objections of the defense, introduced several photographs of the body taken by Dr. Rehling and developed under his direction. We will refer later to this phase of the evidence.'

On that appeal the case was reversed because of the court permitting in evidence, over the defendant's objection, the photographs made and developed by Dr. Rehling after the autopsy of the area where the deceased's body was opened, disclosing the ruptured spleen. The description of the photograph by the court on that appeal is as follows: '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 thrown back covering deceased's face. The inner vitals of deceased are exposed in the large area thus uncovered. Five streams of dark fluid, we presume blood, are running down the uncut portion of the torso. The picture further shows a robed figure back of the body with rubber gloved hands pushed into the vitals so as to disclose a dark object which we know from Dr. Rehling's testimony to be the spleen. On this organ there is a dark line which is the rupture. However another dark line of less width extends diagonally across the spleen. This we assume is blood. The spleen constitutes a very, very, small portion of the whole picture.'

The court then observed: 'In the present case the ghastliness of Exhibit 'H' resulted in a large degree, not from the act of this defendant, but from the dissection necessary in the autopsical operation. Conceding the relevancy in evidence of pictures of injured vital organs, which injuries allegedly caused the deceased's death, yet we are clear to the conclusion that such photographs should be limited to such organs and only so much of the surrounding body as may be necessary to illustrate the organ and its injuries. Where, as in this case, massive mutilation of a body is necessary to expose such injured organ, fairness to an accused demands that only so much of the surrounding dissected body area be pictured as is reasonably necessary to furnish visual aid to the jury in determining the question of facts presented.'

On the last appeal it was observed: 'Timely objections were interposed to the introduction of each of the other photographic exhibits. The point is particularly stressed that as a preliminary proof to their introduction it was not show that the photographs, taken some eight days after death, accurately and correctly portrayed wounds on the body that were present at the time of decedent's death.

In other words, it is urged that for aught appearing from the evidence the various wounds and bruises depicted by the picture could have been occasioned by the handling of the body in preparation for...