State v. Turner

• Decision Date: 24 September 1927
• Citation: 138 A. 562
• Parties: STATE v. TURNER.
• Court: Maine Supreme Court

138 A. 562

STATE

v. TURNER.

Supreme Judicial Court of Maine.

Sept. 24, 1927.

Exceptions from Superior Court, Cumberland County, at Law.

Benjamin Turner was convicted of murder, and he excepts. Exceptions overruled.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEAST, STURGIS, and PATTANGALL, JJ.

Raymond Fellows, Atty, Gen., and Ralph M. Ingalls, Co. Atty., and Franz U. Burkett, Asst. Co. Atty., both of Portland, for the State.

Joseph E. F. Connolly and Harry C. Libby, both of Portland, for respondent.

PATTANGALL, J. On exceptions. Respondent was convicted of murder. He now asks that the verdict be set aside and new trial granted because of errors in admitting and excluding evidence and in refusing requested instructions.

1. The first exception relates to the admission of photographs showing wounds in the body of the deceased, and to the refusal to order the photographs withdrawn from the evidence at the close of the case.

The rule that the admission of photographs as evidence is within the discretion of the trial judge is too well settled to admit argument. Respondent urges that, in the instant case, the discretion was abused. We do not agree with that contention.

When these photographs were offered in evidence, counsel for respondent objected, giving no reason for the objection which was overruled. Exception was taken. Such an exception need not be considered here. In order to avail himself of the right to have his objections to the exclusion or admission of evidence reviewed by this court, the party whose objections have been overruled at nisi prius must state, for the record, the grounds for his objection. McKown v. Powers, 86 Me. 296, 29 A. 1079. No reason for this objection appears to have been stated and none is now stated. Apparently no sound reason could have been stated at the time the evidence was offered, for obviously none existed.

But later counsel filed a motion to order the photographs excluded from the evidence. This was in the nature of a motion to strike testimony from the record, the progress of the case having affected its admissibility. This motion was denied, exception taken, and this exception, properly here for consideration, is seriously urged.

In the first instance, the photographs were admissible as tending to prove the cause of death. At the close of the case the only issue actually in controversy was the sanity of the respondent. Obviously the photographs were of no probative value on that issue. But, notwithstanding the narrowing of the controversy, It was still incumbent upon the state to prove all of the necessary elements of the charge of murder beyond a reasonable doubt.

Evidence could not be ordered stricken from the record simply because it did not bear on the question of sanity. Respondent does not so argue. His position is that the photographs, by reason of the evidence offered by both state and respondent, had become immaterial, and superfluous, and that they were prejudicial.

We cannot say that they were immaterial. They were cumulative. But cumulative evidence may not be regarded, necessarily, as immaterial or superfluous or objectionable.

The emphatic claim of the respondent is that they were prejudicial, in that they were "gruesome and morbid." We are unable to judge of that. They were not produced in this court. They were photographic representations of gunshot wounds. Otherwise than that, we have and can have no knowledge of their character. That they were of a peculiar nature, so that the adjectives applied to them by respondent are appropriate, is a matter resting entirely on the bare assertion of counsel, and, necessarily, purely a matter of opinion. It is urged that they were prejudicial and were introduced for the purpose of inflaming and prejudicing the minds of the jury and that that purpose was accomplished, but it is not conceivable that photographs of gunshot wounds could have affected the judgment of jurors on the issue of respondent's sanity, the only issue which they were actually called upon to decide. To argue otherwise would be to deny the jurors the possession of ordinary intelligence. Respondent's argument on this point presents no reason for ordering a new trial.

2. The second, third, and fourth exceptions relate to the exclusion of testimony designed to place before the jury the opinion of a lay witness, as to respondent's sanity.

The witness in question, an employee of the Postal Telegraph Company, living in Portland, was at the scene of the shooting and observed the respondent for 2 or 3 minutes, then left the place to communicate with officers, returned, and was again in respondent's company for about 15 minutes. He had never seen respondent before this time and never saw him afterwards.

This court has never received opinion evidence on the part of lay witnesses on the question of mental capacity, with the single exception of that...