Warrenburg v. State, No. 771S212

Docket NºNo. 771S212
Citation298 N.E.2d 434, 260 Ind. 572
Case DateJuly 05, 1973
CourtSupreme Court of Indiana

Page 434

298 N.E.2d 434
260 Ind. 572
Herman WARRENBURG, Appellant,
v.
STATE of Indiana, Appellee.
No. 771S212.
Supreme Court of Indiana.
July 5, 1973.
Rehearing Denied Aug. 30, 1973.

[260 Ind. 573] Felson Bowman, Frederick J. Graf, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

HUNTER, Justice.

This is a direct appeal from a conviction of involuntary manslaughter. Herman Warrenburg was indicted on June 4, 1970, for the unlawful killing of his wife. After three continuances, a jury trial commenced on February 22, 1971. Appellant was found guilty and sentenced to the Indiana State Prison for one to ten years on March 3, 1971. A motion to correct errors was overruled on April 29, 1971. From the overruling of his motion to correct errors, Appellant instituted this appeal. Appellant specifies the following as error:

(1) The trial court erred in admitting into evidence an autopsy photograph of the deceased victim.

Page 435

(2) There was insufficient evidence at trial to prove the commission of an 'unlawful act.'

(3) The trial court erred in allowing the prosecution to re-open its case-in-chief in order to prove venue.

Appellant's first allegation of error concerns the admission into evidence of a color photograph of the deceased victim which was taken after an autopsy was performed upon the body.

The photograph in question (State's Exhibit No. 2) is of a partially resewn corpse, nude from the waist up. The right arm of the corpse has been severed completely, the left arm has been re-attached with gaping sutures. Appellant contends that the photograph was irrelevant, cumulative, and calculated to inflame the jurors. Admittedly, the photograph is gruesome, but that fact alone does not render it inadmissible. Torrence v. State (1971), 255 Ind. 618, 266 N.E.2d 1. The real inquiry into the admissibility [260 Ind. 574] of photographs is whether or not they are relevant to the issues in the case. New v. State (1970), 254 Ind. 307, 259 N.E.2d 696. A jury should have before it all relevant evidence, and the test to be applied is a determination of whether the evidence tends to prove a material issue in the case. Wilson v. State (1966), 247 Ind. 680, 221 N.E.2d 347. The surgeon who performed the autopsy, Dr. Benz, testified generally as to various bruises about the victim's body and specifically as to bruises about the left ear. The State contends that the photograph was competent to depict the victim's wounds. However, it cannot be said that the autopsy incisions were wounds inflicted by the defendant-appellant. On preliminary questioning by defense counsel, Dr. Benz testified that the decedent did not appear in the photograph as she did prior to the autopsy. The picture does not depict the victim in her natural state immediately after her death. Prior to the introduction of State's Exhibit No. 2, the prosecution had entered into evidence a...

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18 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...cert. denied, 525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999); Loy v. State, 436 N.E.2d 1125, 1128 (Ind.1982); Warrenburg v. State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6 (1973); cf., Kiefer v. State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05 We do consider these close-up photo......
  • Grimes v. State, No. 1280S444
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1983
    ...photographs are relevant to the issues in the case. Horne v. State, (1983) Ind., 445 N.E.2d 976, reh. denied; Warrenburg v. State, (1973) 260 Ind. 572, 298 N.E.2d 434, reh. denied. The test for determining whether such photographs are relevant is whether or not a witness would be permitted ......
  • Meisberger v. State, No. 53A01-9307-CR-243
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1994
    ...448 N.E.2d 10, 18. The critical inquiry is whether the photographs are relevant to the issues in the case. Warrenburg v. State (1973), 260 Ind. 572, 573-4, 298 N.E.2d 434, The test for determining relevance in this context is whether or not a witness would be permitted to verbally describe ......
  • Loy v. State, No. 981S236
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1982
    ...this respect we think that the photographs, Exhibits E-13 and E-14, are similar to the autopsy photography in Warrenburg v. State, (1973) 260 Ind. 572, 574, 298 N.E.2d 434, 435. In Warrenburg we held that it was error to admit most of an autopsy photograph which showed the surgical incision......
  • Request a trial to view additional results
18 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...cert. denied, 525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999); Loy v. State, 436 N.E.2d 1125, 1128 (Ind.1982); Warrenburg v. State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6 (1973); cf., Kiefer v. State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05 We do consider these close-up photo......
  • Grimes v. State, No. 1280S444
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1983
    ...photographs are relevant to the issues in the case. Horne v. State, (1983) Ind., 445 N.E.2d 976, reh. denied; Warrenburg v. State, (1973) 260 Ind. 572, 298 N.E.2d 434, reh. denied. The test for determining whether such photographs are relevant is whether or not a witness would be permitted ......
  • Meisberger v. State, No. 53A01-9307-CR-243
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1994
    ...448 N.E.2d 10, 18. The critical inquiry is whether the photographs are relevant to the issues in the case. Warrenburg v. State (1973), 260 Ind. 572, 573-4, 298 N.E.2d 434, The test for determining relevance in this context is whether or not a witness would be permitted to verbally describe ......
  • Loy v. State, No. 981S236
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1982
    ...this respect we think that the photographs, Exhibits E-13 and E-14, are similar to the autopsy photography in Warrenburg v. State, (1973) 260 Ind. 572, 574, 298 N.E.2d 434, 435. In Warrenburg we held that it was error to admit most of an autopsy photograph which showed the surgical incision......
  • Request a trial to view additional results

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