Mitchell v. State

• Decision Date: 25 October 1966
• Docket Number: 2 Div. 137
• Citation: 191 So.2d 385,43 Ala.App. 427
• Parties: A. C. MITCHELL v. STATE
• Court: Alabama Court of Appeals

Page 385

191 So.2d 385

43 Ala.App. 427

A. C. MITCHELL v. STATE

2 Div. 137.

Court of Appeals of Alabama.

Oct. 25, 1966.

John F. Taylor, Jr., Demopolis, for appellant.

Richmond M. Flowers, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal came on for submission August 18, 1966, on briefs.

Mitchell has noted an appeal from conviction of first degree manslaughter. The jury's verdict fixed his punishment as well as guilt. The trial judge adjudged Mitchell guilty and sentenced him, conformably with the verdict, to ten years imprisonment. Motion for new trial was overruled.

I

The Grand Jury accused Mitchell of killing six women by driving his truck into another truck operated by one Gibbs causing Gibbs's truck to be knocked into the car in which the six were riding. Count 2 of the indictment averred that Gibbs's 'truck had just struck the automobile in which they were riding thereby knocking or driving said Gibbs's truck further into, upon or against the automobile.'

October 7, 1965, about 4:15 P.M. about a mile east of Rooster Bridge on U.S. Highway 80, Mrs. Charles Panjic was driving west from Demopolis. She was following a car driven by Frances Stewart in which six other women were passengers.

She saw Mrs. Stewart slam on her brakes and swerve to the left. A large transfer truck ahead coming on from the west was forced to slow down by another vehicle.

Also coming east were Gibbs and Mitchell driving two loaded pulpwood trucks, weaving in and out of the line of traffic at a speed which Mrs. Panjic estimated at 60 to 75 miles per hour. The second truck was 'real close' behind the first one. They pulled out to go around the van.

The first truck hit Mrs. Stewart's car 'and flipped her up, and about that time the other truck hit it and off down the embankment they went.'

It was a clear day; the road straight and level. One of the passengers in Mrs. Stewart's car survived.

Gibbs's truck ran 124 feet after hitting Mrs. Stewart's car. Mitchell's went 78 feet after hitting both.

During the testimony of a highway patrolman, J. E. Ward, who investigated the collision, a photograph, State's Exhibit Y, was exhibited. The witness in the course of testifying admitted that this picture of Mrs. Stewart's car did not depict its condition at the time he first came on the scene.

But at page 19 of the record we find on the direct examination of witness Ward:

'Q Is there any difference in the automobile since the time you arrived there and the time this picture was taken?

'A There would be a slight difference on the right hand side of this vehicle between the time this picture was taken and the time I arrived.

'Q What had been done to it, if you know?

'MR. TAYLOR: Judge, if he says there was a difference, that that picture does not depict the automobile immediately after the accident, I object to its admission.

'THE COURT: He may explain the difference.

'A We had to use an acetylene torch to get the ladies out of the car.

'MR. TAYLOR: Your Honor, that statement is inflamatory, and we move to exclude it. The car had been changed physically since the accident and before the pictures were taken. They do not depict the automobile as it was immediately after the accident. They have no probative value, and they are introduced to inflame the minds of the jury.

'MR. BOGGS: May it please the Court, we want him to explain the difference to see whether it is admissible.

'THE COURT: Yes sir. Go ahead.

'Q You did not have any pictures made before and while the ladies were being removed from the car, did you?

'A No sir.

'MR. TAYLOR: Your Honor, the testimony is more damaging than the pictures, and we object.

'THE COURT: Overrule the objection.

'Q Describe the condition of the automobile at the time you arrived there and the condition of it at the time the picture was made?

'A When I arrived on the scene, there were five women still in vehicle number one. One was alive and was laying on the front seat penned in the car. I sent for an acetylene torch, since we couldn't get them out.

'MR. TAYLOR: We object, your Honor.

'THE COURT: He can testify what was done to it.'

Mitchell, the following day, in the presence of the Highway Patrolman gave the Sheriff an inculpatory statement. Part of it reads:

'I was traveling about two truck lengths behind Johnny when we crossed Rooster bridge and entered Marengo County. About one mile east of the bridge Johnny drove up behind a transfer truck and turned left to pass it. I then saw the stop lights on a transfer truck just ahead of me. This truck had just about come to a stop. I slammed on my brakes and the right front wheel skidded but I managed to swerve to the left and dodge the transfer truck. My brakes were bad, as they had been for some time, and when I applied them with full force it made the truck switch about on the road. When Johnny's truck struck the car he was meeting I was only about twenty five feet behind him. When Johnny's truck had knocked the car east about fifty feet I struck his truck in the rear and knocked it forty or fifty feet east. I have been driving this truck off and on for about ten months and the brakes had been good up till about three months ago. Tuesday, Mr. Joplin asked me how long the brakes had been bad on the 1964 GMC truck and I told him they had been like that ever since last winter when we were working in Mississippi. He said he was going to put it in the shop this week-end and have them fixed. Before making this statement I was informed by Sheriff T. Wilmer Shields that I did not have to make a statement, that I was entitled to an attorney and that this statement could be used against me in a trial. I told Sheriff Shields that I wanted to tell just how this accident happened and would freely and willingly give a statement as best I can as to just what happened.'

The only witness for the defense was Mitchell's employer, Mr. Fred Joplin, owner of the truck which Mitchell drove. Mr. Joplin testified he had driven the truck on the same day; that the brakes were in good condition, the truck being comparatively new.

II.

As a general observation, we begin with the first syllabus from the opinion of Simmons, C.J., in Knihal v. State, 150 Neb. 771, 36 N.W.2d 109, 9 A.L.R.2d 891:

'A photograph, when offered in evidence as proving a thing to be as represented in the picture, is not admissible as original or substantive evidence.'

The second syllabus makes it clear that a photograph (unlike a witnessed or notarized deed) is not self proving. The court quotes from Wigmore, Evidence (3d Ed.), § 790:

'* * * It is mere waste paper * * * It can of itself tell us no more as to the existence of the thing portrayed * * * than can a tree or an ox. We must somehow put a testimonial human being behind it (as it were) before it can be treated as having any testimonial standing in court.

It is somebody's testimony,--or it is nothing.'

From Wigmore (ibid.), § 793:

'* * * Here, then is a form of expression ready prepared pictorially; (a witness) must supply the missing elements; in brief, it must appear that there is a witness who has competent knowledge, and that the picture is affirmed by him to represent it.'

And, 'A map or photograph cannot be received anonymously; * * *'--Wigmore, op. cit., supra, § 794.

A photograph to be relevant must show at least in part the mise en scene or locus in quo as part of the res gestae. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389. One taken after the offense is presumptively irrelevant and immaterial. Hamilton v. State, 43 Ala.App. 192, 186 So.2d 108 (hn. 4). This presumption, however, is only one of fact and may be overcome.

In Harris v. Snider, 223 Ala. 94, 134 So. 807, Bouldin, J., wrote:

'The plaintiff offered in evidence her photograph taken before the accident, showing a full front view of the face. On cross-examination it was developed that the photograph had been tinted and touched up by the artist. Motion was then made to exclude the photograph, because not a true likeness disclosed by scientifically accurate processes.

'Stress is laid in argument upon the fact that this photograph, thus finished up to give emphasis to the beauty of face, when contrasted with the face appearing without artificial coloring, at the trial, was misleading, and calculated to work injury to defendant. Certainly the photograph would aid the jury in determining the extent to which the face had been disfigured. The artificial coloring, made known to the jury as such, and not claimed to have been added after the accident for purposes of the trial, furnished no sufficient ground to exclude the photograph.

'The case of Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389, presented a different question. That case, on the whole, is authority for, rather than against, the ruling here.'

The photograph here tendered has not been altered. Rather it shows a wrecked automobile which has been altered ex post facto.

The change, however, according to the witness (who under Wigmore, supra, is indispensable to the photograph's use), occurred on the opposite side of the car from that facing the camera and to the top of the car. Accordingly, we infer from the testimony explaining the picture that a substantial part of the automobile portrayed can be viewed as the witness saw it when he drove up to the site of the collisions.

No point of objection was made that the witness arrived half an hour after the trucks hit the car. Compare Vandiver v. State, 37 Ala.App. 526, 73 So.2d 566 (hn. 4). We think it reasonable to assume, since the photograph shows the car and Gibbs's truck in the ditch, that they were in their places of rest after impact and their subsequent going off the road. We note in this regard that the highway patrolman stated that, other than possible changes from acetylene torches, raising the car's roof and the removal of the occupants, the car and truck were shown as when h...