State v. Miller

• Decision Date: 27 April 1959
• Docket Number: No. 44490,44490
• Citation: 111 So.2d 108,237 La. 266
• Parties: STATE of Louisiana v. Glenn Clyde Stanley MILLER.
• Court: Louisiana Supreme Court

Page 108

111 So.2d 108

237 La. 266

STATE of Louisiana v. Glenn Clyde Stanley MILLER.

No. 44490.

Supreme Court of Louisiana.

April 27, 1959.

Ossie B. Brown, Baton Rouge, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Thomas B. Pugh, Asst. Dist. Atty., Baton Rouge, for appellee.

HAMLIN, Justice.

Defendant, who was indicted for the crime of aggravated rape (LSA-R.S. 14:42), appeals from his conviction of the crime of simple rape (LSA-R.S. 14:43) and sentence to serve twenty years at hard labor in the Louisiana State Penitentiary.

Presented for our consideration are three Bills of Exceptions reserved during the course of trial.

Bill of Exceptions No. 1 was reserved to the trial judge's overruling of defendant's objection to the introduction in evidence and subsequent showing on a 'movie' screen of certain colored slides showing bruises on the prosecuting witness' body alleged by her to have been inflicted by the defendant. Counsel stated that the 'blown up' colored slides when magnified on the screen showed gruesome details which would prejudice the jury.

Mr. Ray Herd, Chief Criminologist for the Crime Laboratory, Louisiana State Police, stated that the prosecuting witness was photographed in Ansco Color film and Plus X black and white film. He testified:

'Q. Sir in your opinion, did the photographs reflect accurately or accurately enough the severity of the bruises and lacerations that you saw? A. The black and white film show the general location of the bruises. I believe the color film is a reasonable duplication of the bruises themselves.

'Q. Can you say whether or not, sir, the films, either black and white or in color, would look as severe as they did in actuality? A. The black and white would diminish the appearance to some extent. The color film would not exaggerate them, if anything it would diminish the appearance.

'Q. Mr. Herd, with reference to the color film did I understand you to say that these films both color and black and white do not show with accuracy the trueness of these bruises? A. I testified that the black and white films merely show the location of these things and not the appearance of them, while the color film is a reasonable duplication of the appearance of them.'

The State utilized the colored photographs--taken shortly after the commission of the alleged crime--to corroborate the victim's testimony. The bruises having healed at the time of trial, black and white photographs were claimed to be inadequate to reveal them. The State contended that not only were the photographs essential to its case, but that they were the only means by which it could show the bruises. The State further argued that the slides were not gruesome or morbid.

We have examined the slides, which were submitted to this Court as a part of the evidence attached to this bill of exceptions, and we do not find them gruesome, morbid, or of any other character as would prejudice the jury. In State v. Johnson, 198 La. 195, 3 So.2d 556,¹ 559, we properly reviewed as follows, the rules with respect to the admission of photographs in evidence:

'The principle of admitting this kind of evidence (photographs) is but a corollary to that permitting the introduction of the physical object itself. Stated as a general rule, the proposition is that photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and where they tend to illustrate any material fact in the case or to shed light upon the transaction before the court. Wharton's Criminal Evidence, 11th Ed., Vol. 2, sec. 773, p. 1317.

'Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Wharton, Criminal Evidence, 11th Ed., Vol. 2, sec. 773, p. 1321.

'The admission of photographs and the use to be made of them on the trial must necessarily rest largely within the discretion of the trial judge, who can determine whether they serve a proper purpose in the jury's enlightenment. Wharton, Criminal Evidence, 11th Ed., Vol. 2, sec. 773, p. 1323. Photographs, whether original or coples, are admissible as primary evidence upon the same grounds and for the same purposes as are diagrams, maps and drawings of objects or places. Generally, photographs which go to illustrate any fact or shed light on an issue, or are relevant to describe person, place or thing involved, are admissible. They may be used by witnesses in explaining their testimony, and in illustrating hypothetical situations. Admission and use of photographs are much within the discretion of the court, and it is proper practice for the judge to hear preliminary evidence on the matter. * * *' See, State v. Scott, 198 La. 162, 3 So.2d 545; State v. Ross, 217 La. 837, 47 So.2d 559; State v. Solomon, 222 La. 269, 62 So.2d 481; State v. Palmer, 227 La. 691, 80 So.2d 374; State v. Lea, 228 La. 724, 84 So.2d 169; State v. Goins, 232 La. 238, 94 So.2d 244, 355 U.S. 847, 78 S.Ct. 74, 2 L.Ed.2d 57.

We conclude that the slides served the same purpose as photographs and were properly admitted in evidence. The State presented them on screen to the jury to corroborate its testimony going to prove that the defendant had physically injured the prosecuting witness. Since screening the color slides was a reasonable method of exhibiting a duplication of the bruises suffered by the prosecuting witness, we find that it was proper and not prejudicial. There was no abuse of discretion by the trial judge, particularly in view of his statement in per curiam that--

'Counsel for defendant says in this bill that the reason for introducing the colored slides was to prejudice the Jury, the pictures being 'morbid in detail.' Both statements are wholly incorrect. There was nothing 'morbid' about them. The bruises did not present a morbid condition and the projection of the colored pictures on the screen did not enlarge the subject over her natural size. * * *'

Bill of Exceptions No. 1 is without merit.

Bill of Exceptions No. 2, reserved when the trial judge overruled defendant's motion for a new trial, averred:

'* * * that the verdict of the Jury was not predicated upon any evidence of any kind or description whatsoever to support and justify the said verdict of guilty of simple rape and that not one single item of legal evidence whatsoever was offered, presented or shown by the State of Louisiana to support and justify the verdict of guilty of simple rape as rendered herein and further that there is not the slightest scintilla of evidence in the record pointing to or indicating any guilt on the part of the defendant of the crime of simple rape as defined by the Criminal Code of Louisiana. Therefore, the question of your defendant's guilt of the crime of simple rape is therefore a question of law, since there is not the slightest scintilla of evidence in the record to substantiate and support the verdict of guilty of simple rape since none of the elements of this particular offense was brought forth and elicited on the trial herein.'

LSA-R.S. 14:42 defines aggravated rape as follows:

'Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:

'(1) Where the female resists the act to the utmost, but her resistance is overcome by force.

'(2) Where she is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

'(3) Where she is under the age of twelve years. Lack of knowledge of the female's age shall not be a defense.

'Whoever commits the crime of aggravated rape shall be punished by death.'

Simple rape is defined in LSA-R.S. 14:43 as:

'* * * a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:

'(1) Where she is incapable of resisting or of understanding the nature of the act, by reason of stupor or abnormal condition of the mind produced by an intoxicating, narcotic or anesthetic agent, administered by or with the privity of the offender; or when she has such incapacity, by reason of a stupor or abnormal condition of mind from any cause, and the offender knew or should have known of her incapacity.

'Whoever commits the crime of simple rape shall be imprisoned at hard labor for not less than one nor more than twenty years.'

As stated supra, defendant was indicted for aggravated rape and convicted of simple rape. To support his contention that the State did not prove that he had committed the crime of simple rape, defendant attached to the present bill of exceptions all of the testimony taken during the course of trial. Being aware of the rule of law that in prosecutions in which the State fails to produce any evidence establishing one or more of the elements of the crime of which an accused stands convicted, he will be discharged--State v. La Borde, 234 La. 28, 99 So.2d 11--we have carefully reviewed the evidence herein; and we find that at the time the defendant had sexual intercourse with the prosecuting witness, her state of mind was confused and abnormal. This condition, an ingredient of the crime of simple rape, was engendered by fear--fear of the defendant and of his actions. Her testimony recites:

'A. There he made me lay down on the seat.

'Q. You say he made you? A. Yes, he choked me and told me he would kill me, and--

'Q. Now, just a minute. I can't hear you. * * * A. He told me he would kill me.

'Q. He said he would kill you? A. Yes, he asked me how I would feel if I...