State v. Eubanks

• Decision Date: 07 November 1960
• Docket Number: No. 45199,45199
• Citation: 240 La. 552,124 So.2d 543
• Parties: STATE of Louisiana v. Freddie EUBANKS.
• Court: Louisiana Supreme Court

Page 543

124 So.2d 543

240 La. 552

STATE of Louisiana v. Freddie EUBANKS.

No. 45199.

Supreme Court of Louisiana.

Nov. 7, 1960.

Rehearing Denied Dec. 12, 1960.

Max Zelden, Sam Monk Zelden, Frank J. Shea, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., Joseph R. Bossetta, First Asst. Dist. Atty., Malcolm G. Mundy, Jr., Asst. Dist. Atty., New Orleans, for appellee.

HAWTHORNE, Justice.

Mrs. Mabel Clarkson, about 70 years old, was found dead in her apartment at 731 Iberville Street in New Orleans. Her nude body was on the floor, covered by a mattress, pillows, bed-clothing, rug, and chair. Investigation revealed that she had been struck about the head and body with a piece of iron pipe and an electric fan, and had been stabbed in the chest with an icepick. Freddie Eubanks was indicted and tried for this murder. The State offered evidence to establish that Eubanks entered Mrs. Clarkson's apartment in the early morning with the intention of committing a theft; that Eubanks took some money from Mrs. Clarkson's purse, which was on the dresser, and was searching the room when she awoke; that he struck her with the iron pipe; that Mrs. Clarkson attempted to escape from the room, and that in the ensuing struggle Eubanks tore her pajamas off, struck her with the iron pipe and the electric fan, stabbed her with an icepick, covered her body as described above, and left the room. After Eubanks' arrest he led police officers to the place where he had hidden a watch and other articles stolen from Mrs. Clarkson's room. Eubanks was found guilty as charged and sentenced to death. He has appealed, relying for reversal on several bills of exception. ¹

Bills of Exception Nos. 1 and 8.

Bills of Exception Nos. 1 and 8 were taken to the admission in evidence over Eubanks' objection of two photographs of the deceased's body. The photograph filed as State Exhibit No. 42 was made at the scene of the crime, and the other, State Exhibit No. 9, was taken at the morgue. It is appellant's contention that these exhibits were gruesome, that they were offered in evidence solely to prejudice the jury, and that they were not in any way necessary or material to the State's case.

We reiterate here what we have said many times, that the fact that photographs are gruesome and tend to prejudice the jury does not render them inadmissible in evidence if they are otherwise admissible. Scott on Photographic Evidence, Section 661, p. 577, states the rule as follows:

'A photograph of the wounds of the victim of a crime may be prejudicial because of its gruesome appearance, but nevertheless is admissible when material to some issue in the case and when properly verified; if the rule were otherwise, the more horrible the crime the more hampered would be the prosecution of those who had contributed the details of its horror.'

See also State v. Johnson, 198 La. 195, 3 So.2d 556; State v. Solomon, 222 La. 269, 62 So.2d 481.

Although photographs in a criminal case may be gruesome, they are admissible if offered for such purposes as to show the manner of death, and the location, severity, and number of wounds; to establish the corpus delicti of the crime charged; to illustrate any fact, to shed light on any issue, or to describe persons, places, or things involved; to aid in identification; and to confirm the coroner's proces verbal in regard to the description of wounds and the cause of death. 2 Wharton, Criminal Evidence (12th ed.), Sec. 686, V. 2, pp. 654--655; State v. Solomon, supra; State v. Johnson, supra; State v. Ross, 217 La. 837, 47 So.2d 559, 560; State v. Stahl, 236 La. 362, 107 So.2d 670, 675.

In the recent case of State v. Stahl, supra, this court carefully and precisely set out the law on the introduction of gruesome photographs, and quoted at length from State v. Ross, supra, and State v. Solomon, supra, thus:

'In State v. Ross we said (217 La. 837, 47 So.2d 560):

"* * * It has long been the jurisprudence of this court that photographs, properly identified, of the body of the deceased in homicide cases are admissible for the purpose of showing the nature of the crime and the facts and circumstances surrounding its commission, or to assist the witnesses in their testimony and as an aid to the jury in obtaining a better understanding of the character of the wounds. See State v. Messer, 194 La. 238, 193 So. 633; State v. Henry, 197 La. 999, 3 So.2d 104 and State v. Johnson, 198 La. 195, 3 So.2d 556. And the fact that the photographs portray a repulsive spectacle and tend to prejudice the jury furnishes no valid ground for their exclusion where they are otherwise relevant. State v. Johnson, supra; Wharton, Criminal Evidence, 11th Edition, Vol. 2, sec. 773, p. 1321; Scott, Photographic Evidence, sec. 661, pps. 570--580.'

'In State v. Solomon, supra (222 La. 269, 62 So.2d 484), it was stated:

"But, aside from this, the photograph was clearly admissible for identification purposes, and also in corroboration of the Coroner's proce's verbal with reference to the description of the wounds and the cause of death. Albeit, we reiterate our adherence to the views succinctly expressed in State v. Johnson, 198 La. 195, 3 So.2d 556, that, where the photographs are admissible, the fact that they are so gruesome that they tend to prejudice the jury is not a valid reason for rejecting them in evidence. State v. Morgan is to be regarded as--indeed it is--a case of most unusual circumstances."

Appellant in the instant case relies on State v. Morgan, 211 La. 572, 30 So.2d 434; but in the light of the jurisprudence which we have discussed at length, we shall not comment on the Morgan case.

The trial judge in the case at bar informs us in his per curiam that these photographs were offered by the State to show the body of the deceased, the position of the wounds, etc. Moreover, it is clear that they were admissible in corroboration of the coroner's proces verbal as to the nature and description of the wounds and the cause of death.

Appellant further argues that State Exhibit No. 9, the picture taken at the morgue, is inadmissible because an autopsy had been performed on the body before the picture was made. The record does not support this allegation. Although there is some uncertainty as to the exact hour when the picture was made, both the photographer of the coroner's office and the coroner himself testified positively that it was taken before the autopsy was performed.

Appellant also contends that State Exhibit No. 9 was inadmissible because no predicate was laid for its admission and it was not properly identified. In this connection he points to the official photographer's statement that he took the photograph so that the 'bullet wound' in the body would show. An examination of the photograph makes it perfectly apparent that the photographer was referring to the stab wound made by an icepick. Moreover, the State did not contend that the victim died from a gunshot wound or even that she had been shot. We fail to see how this mistaken and isolated voluntary reference to a bullet wound could have prejudiced the accused. As we view the matter, the objection goes more to the weight to be given to the testimony than to the admissibility of the photograph. In addition, a witness who had known the deceased well for several years positively identified the picture as a photograph of the body of Mrs. Clarkson, whom the accused was charged with murdering.

Bill of Exception No. 2.

During the trial of the case the State called Joseph Oliver as a witness. On cross-examination counsel for the defense sought, for the purpose of impeaching Oliver's testimony, to question him regarding his testimony at a prior trial of the accused for this crime, and for this purpose counsel sought to use his testimony given at that trial. The district attorney objected to the use of this witness' testimony as taken by the official stenographer at the earlier trial, and upon his objection the trial judge ruled that the defense must introduce the entire record of that trial before it could use Oliver's prior testimony. Counsel for the defense objected to this ruling and reserved Bill of Exception No. 2. Pursuant to the ruling of the court the entire record of the former trial was offered, and defense counsel used the testimony there contained in cross-examination of Oliver and several other state witnesses as to statements made by them at that trial.

The trial judge in his per curiam informs us that the jury was never told except by counsel for the defense that there had been a former trial. The judge further states that no reference was made to the former trial except in connection with defense counsel's examination of state witnesses, that the jury never saw the written record of the first trial, and that no reference was made to the verdict returned at that time.

We have some doubt of the correctness of the judge's ruling, but we need not decide whether it was erroneous because, as shown by the judge's per curiam, the accused was not prejudiced by the ruling. Counsel for the accused were not deprived of the use of the record, and were not hampered or hindered in their use of it to cross-examine state witnesses regarding their testimony on the former trial.

Bill of Exception No. 3.

A bloody palm print was found by investigating officers on a washbasin in the deceased's room, and during the trial the State offered in evidence a photograph of this palm print, identified as State Exhibit No. 13 and filed while a fingerprint expert was testifying for the State. This bill of exception shows that at the time the picture was offered in evidence, the attorney for the defense objected but stated no reason for his objection.

The law is well settled that a bill of exception must state the grounds of objection and point out specifically the errors complained of. In other words, the bill must...