State v. Blackwell
| Decision Date | 07 March 1969 |
| Docket Number | No. 36936,36936 |
| Citation | 165 N.W.2d 730,184 Neb. 121 |
| Parties | STATE of Nebraska, Appellee, v. Seth E. BLACKWELL, Sr., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Photographs taken of a defendant without his permission or consent do not infringe the constitutional prohibition of Article I, section 12, of the Constitution of Nebraska, against compelling defendant to give evidence against himself.
2. A photograph proved to be a true representation of the person, place, or thing which it purports to represent is proper evidence of anything of which it is competent and relevant for a witness to give a verbal description.
3. In a homicide case, photographs of the victim, upon proper foundation, may be received in evidence to show the nature or extent of wounds or injuries thereon.
4. The fact that a photograph might present a gruesome spectacle does not prohibit its admission in evidence.
5. Malice and a purpose to kill are essential elements of murder in the second degree. The burden is upon the State to prove both of the elements beyond a reasonable doubt.
6. The continuity and violence of the stabbing, although gruesome, may be shown as relevant to prove the elements of malice and a purpose to kill in a prosecution for second degree murder.
Norman Langemach, Farley Young, Lincoln, for appellant.
Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH and McCOWN, JJ., and KOKJER and ACH, District Judges.
The defendant, Seth E. Blackwell, Sr., was sentenced to life imprisonment for second degree murder for killing another person by stabbing. The defendant appeals, attacking the admission of certain exhibits and testimony in evidence, the striking of certain testimony of the defendant, the failure to grant a mistrial because of emotional outbursts of the defendant, and the length of the sentence imposed. We affirm the judgment and the sentence of the district court.
Defendant first complains of the admission in evidence of three photographs of defendant taken at the police station shortly after the crime showing the defendant disrobed from the waist up. Such photographs taken of the defendant without his permission or consent do not infringe the constitutional prohibition of Article I, section 12, of the Constitution of Nebraska, against compelling defendant to give evidence against himself. State v. Oleson, 180 Neb. 546, 143 N.W.2d 917. The exhibits being otherwise relevant as to the ability of the defendant to commit the crime and the absence of marks or scratches which would negate a prior assault on the part of the deceased, the admission in evidence did not constitute error.
Complaint is made of the admission in evidence of seven photographs which show the porch upon which deceased was found by police officers following the stabbing. Defendant alleges that these exhibits had no evidentiary value except to inflame the minds of the jurors by showing a 'bloody mess.' It must be conceded that these show a 'bloody mess,' but that is what the witnesses saw; and it might be added that such a scene is not an unusual occurrence when a victim is slashed in the throat and stomach causing said victim's death. 'A photograph proved to be a true representation of the person, place, or thing which it purports to represent is proper evidence of anything of which it is competent ant relevant for a witness to give a verbal description.' Davis v. State, 171 Neb. 333, 106 N.W.2d 490. We have examined the exhibits challenged and find there was no error in their admission. No showing is made that the number of these exhibits was so excessive so as to prejudice the defendant. The admission of cumulative evidence of this nature rests within the sound discretion on the court and there was no abuse of discretion in this respect. We also note that in a criminal case, often the failure to introduce all of the exhibits of this nature lays open the prosecution to the attack that evidence is being withheld or secreted.
Complaint is also made of the admission in evidence of two additional photographs showing deceased on a stretcher, and the wounds which the pathologist testified to as being the cause of death being clearly visible. The pictures are gruesome, there is a stab would in the throat and the slash in the stomach from which a portion of the small intestine is protruding. These photographs were admissible. Photographs of the victim, upon proper foundation, may be received in evidence to show the nature or extent of wounds or injuries thereon. Vaca v. State, 150 Neb. 516, 34 N.W.2d 873; Reizenstein v. State, 165 Neb. 865, 87 N.W.2d 560. The fact that a photograph might present a gruesome spectacle does not prohibit its admission in evidence. MacAvoy v. State, 144 Neb. 827, 15 N.W.2d 45.
In a homicide case the admission in evidence of photographs of this type is particularly relevant because the prosecution must establish beyond a reasonable doubt the elements of malice and purpose to kill in murder of the second degree. The continuity and violence of the stabbing, although gruesome, may be shown as relevant to prove these essential elements. In State v. Walle, 182 Neb. 642, 156 N.W.2d 810, a case involving five photographs taken at the scene of the crime and in the morgue, this court said: * * *
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State v. Trail
...remain fair and impartial, the defendant had failed to demonstrate prejudice. We reached a similar conclusion for similar reasons in State v. Blackwell ,103 affirming the court's denial of a motion for new trial based on the defendant's yelling at witnesses during their testimony. When the ......
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Neb. Const. art. I § I-12 Evidence Against Self; Double Jeopardy
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