Opinion
No. 38445.
October 6, 1952.
1. Abortion — manslaughter — instructions.
In a prosecution for manslaughter wherein the death was caused by an unlawful operation for abortion, an instruction which tracked the language of the applicable statute and stated what facts were necessary to be found to bring the crime within the statute is not subject to challenge because it did not define manslaughter. Sec. 2220 Code 1942.
2. Abortion — manslaughter — instructions.
In the prosecution aforestated, an instruction that the jury did not have to actually know that the defendant is guilty, but that if they believed from all the evidence in the case beyond a reasonable doubt that he is guilty, the jury should convict of manslaughter, taken together with the instruction outlined in the foregoing headnote, were adequate to inform the jury both as to what facts were to be found and to what degree they must be persuaded.
3. Criminal procedure — confessions — implied confession or admission — admissible.
In the prosecution aforestated, a voluntary statement by the defendant to the sheriff that if the witnesses mentioned stood by their story it looked like they had him caught and that if he could get his sentence down to one or two years he would make a clean breast of it, was relevant and admissible whether considered as an implied confession or as an admission.
4. Criminal procedure — evidence — drawings or charts made by qualified person.
In the prosecution aforestated, wherein a properly qualified pathologist testified that he performed an autopsy and from it had discovered that the death of the woman had been caused by a crude attempt at an abortion, drawings made by him with care and skill from accredited medical textbooks and from his own knowledge as disclosed to him by the autopsy, showing the relative location of the organs involved and illustrating his findings, were admissible in evidence in order to explain the medical and anatomical terms used.
5. Evidence — charts or drawings.
The test as to the admissibility of drawings or charts such as mentioned in the foregoing headnote is their capacity to inform the jury, and where they are accurate and fully explained are admissible even though abstract.
6. Criminal procedure — exhibition of charts or maps — prejudice or passion, incitement of.
The introduction of the drawings or charts aforementioned was not subject to challenge on the ground that it was calculated to incite prejudice or passion.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Lee County; RAYMOND T. JARVIS, Judge.
Ramon L. Burgess, for appellant.
Among several other points appellant argued that the exhibits to the physician's testimony were erroneously admitted. Appellant says:
In this cause the physician testified as to exhibits which were drawings setting forth the body of a woman revealing the various organs and an unborn child. It will be seen that these drawings are inflated and do not represent a fair description of the particular organ described or attempted to be described by the physician. In the case of Fore v. State, 75 Miss. 727, 23 So. 710, our Supreme Court held that it was reversible error to admit in evidence photographs representing arrangements made by the chief witness whereby his version of the occurrence was brought vividly before the eyes of the jury.
In the case of Brett v. State, 94 Miss. 69, 47 So. 781, our Supreme Court reaffirmed its holding in the Fore case as cited above and held that the admission of photographs or drawings was fatal error. We respectfully maintain that these reproductions or drawings do not present a favorable representation of the subject as it existed. That these photographs or drawings incited the jurors' emotions against the defendant; that they were not pertinent, relevant and material as evidence nor did they accurately represent the situation and are not competent. These pictures were reproduced from a standard textbook of anatomy. It will be noted, however, that the book was not produced in evidence for the jury to determine whether or not it was a true copy. No evidence was offered as to what the required standard of the textbook might have been. The name of the artist or proposed artist who made the drawings was not given nor was he introduced to testify as to the accuracy of same.
It is not shown in this case that the physician was an expert in drawing or tracing the various organs of the female or drawing of a child and that same were made by a friend of his, or an acquaintance. We maintain that he must have been competent in the absence of the person who made the drawings to make them himself and testify as to their being a fair representation of the organ presented therein. This situation is altogether different from permitting a physician to testify from an X-ray where such physician is competent to make and read X-rays. We further maintain that the evidence does not show that the decedent's body was in such condition at the time of the alleged abortion as was found at the time of the autopsy and that the same situations must exist before the pictures, photographs or drawings are admissible. Hancock v. State, 47 So.2d 833.
J.T. Patterson, Assistant Attorney General, for appellee, replied on the point as follows:
During the course of the doctor's testimony, there were offered and introduced three drawings which were testified to by the doctor as being fair reproductions of the organs of a female and their relative position. It is shown that the drawings were prepared by an artist at the request of the doctor and under his direction, and that the drawings were checked from a standard textbook. The drawings were drawn to reflect three months pregnancy, the proof showing that the deceased was slightly more than three months pregnant. The State did not contend that the drawings represented a picture of the deceased, contending only that the drawings represent a fair reproduction of the organs of a female in their relative position, and the drawings were used by the doctor in further explanation and demonstration of his expert testimony before the jury. Such evidence has been held to be admissible in all courts of this country. As stated in 20 Am. Jur., Sec. 739, p. 616, under the subject, "Evidence," "It is a well-established rule, applied in everyday practice in courts, that maps, drawings, and diagrams illustrating the scenes of a transaction and the relative location of objects, if shown to be reasonably accurate and correct, are admissible in evidence, in order to enable the court or jury to understand and apply the established facts to the particular case. The use of such things as testimony of the objects represented rests fundamentally upon the theory that they represent a method of pictorial communication of a qualified witness which he may use instead of, or in addition to, some other method. Evidence of this character is helpful in aiding the jury to visualize the objects and scenes in the action."
This Court, in the case of LeBarron v. State, 107 Miss. 663, 65 So. 648, in passing on the question of admissibility in evidence of photographs, quoting from Jones' Commentaries on Evidence, said, "It is a constant practice to receive as evidence pictures and drawings of objects which cannot be brought into court, after these have been proved to be accurate representations of the subject. In like manner, photographs are often admitted when the proper preliminary proof as to the exactness and accuracy is offered. They are of the same character of evidence as diagrams and pictures drawn by hand; not necessarily carrying the same degree of prohibitive force, but still of the same character; not in themselves evidence at all, but representing to the eye what the witness declares was the real appearance of things at the time he saw it. Diagrams, drawings, and photographs are resorted to only because the witness cannot with language as clearly convey to the minds of the court and jury the scene as the light printed it on the retina of his own eye at the time of which he is testifying."
The drawings offered in evidence in the case at bar were used by the expert witness to convey to the court and jury that which he could not have conveyed by language alone, and, therefore the drawings, being shown to be fair reproductions of the organs of a female three months pregnant, were properly admitted in evidence, and the record clearly shows, were very helpful to the court and jury in understanding the doctor's testimony.
This is the second appearance of this case. See 211 Miss. 892, 53 So.2d 25. The testimony follows so closely that in the former case that it is unnecessary to set it out in detail.
The indictment was for murder. Death was caused by an unlawful operation for abortion. In our former opinion it was decided that death to a prospective mother, under the facts, justified submission only of the issue of manslaughter. Such was the verdict here.
The assignments argued are: (1) the giving of certain instructions for the State; (2) the introduction of a purported confession; (3) the admission of certain charts by a physician; and (4) that the verdict evinces passion and prejudice. We consider them in that order.
The first instruction for the State is as follows: "The Court instructs the Jury for the State that Manslaughter is the killing of a human being by the act, procurement or culpable negligence of another and without authority of law, and the court now charges the Jury for the State that if you believe from the evidence in this case beyond a reasonable doubt that the defendant feloniously attempted to perform a felonious abortion upon Ava Lucille Vaiden, who was then and there pregnant with child, by feloniously forcing air into her private parts, and that the said Ava Lucille Vaiden died as a result thereof, then you will find the defendant guilty of manslaughter, regardless of whether Ava Lucille Vaiden consented thereto or not, and in such event the form of your verdict may be:
"`We, the Jury, find the defendant guilty of Manslaughter.'"
Appellant insists that he is guilty of murder or of no crime, and that the only applicable statutes are Code 1942, Secs. 2215, 2222 and 2223. The first defines murder which we have held is not applicable under the facts here; the second deals with the killing of an unborn quick child by injuries to the mother; and the third defines abortion in which the death of such child is caused.
(Hn 1) The quoted instruction tracks the language of Sec. 2220, and against the contention that it does not define manslaughter, we are compelled to hold that it is correct. (Hn 2) The second instruction for the State is as follows: "The Court instructs the jury that they do not have to actually know that the defendant is guilty before they can convict him; but that it is only necessary that they should believe from the evidence in this case beyond a reasonable doubt that he is guilty; and if they do believe from all of the evidence in this case, beyond a reasonable doubt that the defendant is guilty, it is their sworn duty to find him guilty of Manslaughter."
This instruction does not undertake to define the crime but only the measure of jury persuasion. Standing alone it is an abstraction albeit correct. Taken with the first instruction, the jury were adequately informed both as to what facts were to be found and to what degree they must be persuaded. (Hn 3) The alleged confession relates to the following statement of the sheriff which was in substance corroborated by the jailer: "During the day Monday I was up in the jail and had occasion to talk to him (Lackey) and he said he would like to talk with me and I told him I would try to get you (the prosecuting attorney) down there, and I went back to the jail that night and told Bailey to go up and get Mr. Lackey and bring him to the office and I told him I had been unable to contact you that day and we sat there and talked a few minutes and he asked me what he was charged with and I told him I thought no formal charges had been made but from rumors I thought manslaughter and he asked what was the penalty for manslaughter and I told him I thought from five to fifteen years, and he said if he got five years at his age and condition of his health it would mean the same thing as life, and I told him the boy and girl had talked and if they stood by the same story they had told that it looked like they had him in a tight place and he said if they stood by their story looked like they had him caught and if he could get it down to one or two years he would make a clean breast of the thing."
Upon a preliminary examination, in which appellant did not testify, it was shown that the statement was voluntarily made. Whether considered as an implied confession or as an admission, it was relevant and admissible. Certainly the impulse to make such assertions arose only from the reactions of the accused and while circumstantially relevant upon the issue of guilt were not explicit confessions.
(Hn 4) A properly qualified pathologist, introduced by the State, testified that shortly after death of the woman, an autopsy was performed by him, which disclosed that death had been caused by an air embolism. There were other indications consistent with the theory of the State that death had resulted almost immediately from the crude procedure employed by the appellant.
In order to explain the medical and anatomical terms used, the physician exhibited three large drawings showing the relative location of the several organs and illustrating his findings. It was testified that they were prepared by him from accredited medical textbooks and from his own knowledge both of the subject and of his actual examination of the physical facts disclosed by the autopsy. They appear to be drawn with care and skill and their accuracy is not questioned.
(Hn 5) The test as to the admissibility of such charts is their capacity to inform the jury, and where they are accurate and fully explained, are admissible even though abstract. Le Barron v. State, 107 Miss. 663; 20 Am. Jur., Evidence, Sec. 739; 32 C.J.S., Evidence, Sec. 730; Wigmore on Evidence, (3rd Ed.), Sec. 790; Underhill, Criminal Evidence, (3rd Ed.), Sec. 105; Wharton, Criminal Evidence, (11th Ed.), Sec. 980. There is no contention that the victim was other than physically normal. We find this assignment not well taken. (Hn 6) Nor was their introduction calculated to incite passion or prejudice.
Upon the whole record, we find no reversible error, and the jury were warranted in resolving the conflicting issues of fact.
Affirmed.
Roberds, P.J., and Kyle, Holmes and Ethridge, JJ., concur.