No. 12111 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

THE STATE OF MONTANA,Plaintiff and Respondent,

-vs

# - DANPEL EDWARD 0

## 'DONNELL

## , Defendant and Appellant.

Appeal from: District Court of the Second Judicial District, Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant

### : Holland, Holland and Haxby, Butte, Montana. Leonard J, Haxby argued, Butte, Montana, For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana. David V. Gliko argued, AssistantAttorney General,

Helena, Montana. Lawrence G, Stimatz, County Attorney, Butte, Montana. J. Brian Tierney, Deputy County Attorney, Butte,

Montana.
Submitted: February 15, 1972 Decided:

### ApR 

### 141972Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court

# . Defendant was convicted of manslaughter by jury verdict in the district court of the second judicial district, Silver Bow County, the Hon. James D. Freebourn, judge presiding, and sentenced toseven years in the statepenitentiary. From that verdict and judgment, defendant appeals. On thenight of April 10-11, 1970, atapproximately 12:37 a.m., theButte firedepartment received a callrequesting it toproceed todefendant's home with a resuscitator. Upon arrival, the firemen found defendant's stepson, threeyear old Donald Cuchine, ina stateof apparent lifelessness. The firemen's attempts torevive the child were unsuccessful so they rushed him to the hospital, where he was pronounced "dead on arrival". A visual examination and an internalautopsy of the body revealed: the boy's body was covered with bruises and his stomach was distended; therewas one group of bruises that fit the pattern of a person's knuckles; the boy had received prior injuries tohis ribs; and, therewas an adhesion or scar tissue

on themesentery indicating an old wound. A coroner's inquest determined death resulted from the rupture of the large blood vessel in the mesentery, which caused the boy tobleed todeath internally. The distended stomachwas a result of the internal bleeding. Further, the consistency of the blood in the stomach cavity indicated the hemorrhage had occurred just ten minutes prior todeath. Both defendant and hiswife, Carol, were away from home the evening of April 10, 1970. Their children, including Donald, teen-age had been Left in the custody of twolbabysitters, Leland Dockenand Mike Mazzola. When defendant returned home alone around 11:30 p.m., young Donald Cuchinewas asleep on the living room couch. Defendant then drove the two babysitters home, leaving Donald unattended. Both of the babysitters testified thatwhen defendant returned home he appeared tohave been drinking and was in a "mean mood". They also testified that when they leftdefendant's home thehouse was neat and orderly and Donald Cuchine did not have any bruises on his face. The events following defendant's return tohis home, after taking the babysitters home, are somewhat confused and the testimony 

### is conflicting. Defendant testified that after he returned home he had been watching television for about 15-30 minutes when he heard Donald falloff the livingroom couch, Donald "had wet himselfP',so defendant changed his shorts and pajamas. Aiter changing and dressing Donald, defendant laid him back on the couch. "A few minutes later he rolled off the couch and started vomiting." Donald appeared faint and pale so defendant put him on a kitchen chair and "started to get him a drink of water1'. Donald fellokf the chair. Defendant gave Donald a glass of water but he just "kept on vomiting". Defendant then testified that he ran upstairs, caught his foot on the telephone cord and pulled it from thewall. When he returned, Donald appeared to be "passing out" sodefendant ran over tohis sister-in-law's house and tried to locatehiswife. Failing to findher, he returned home and administered mouth-to-mouth resuscitation toDonald, but without success.In the meantime, defendant's mother-in-law, Mrs. Fred Docken, called a telephone operator requesting that help be sent to the 0'~onnell home. Apparently, theButte firedepartment received 

### its callfrom the telephone operator. Defendant raises five issues on appeal, alleging: 1. The use of inadmissible photographs and the chart

was prejudicia1tothe defendant and therefore reversible

error. 2. Allreference to the broken telephone, a pair of shoes, a stick, and a pair of pajamas was immaterial and 

### irrelevant and only served toprejudice theminds of thejury against the defendant. 

### 3. The prosecution was allowed toimpeach its own witness. 

### 4. The evidence was insufficient to support the verdict.

### 5. ~efendant's motions for a mistrial, directed verdict of not guilty, and to advise thejury toacquit, should have been granted. The first issue concerns the use of photographs of the deceased ina criminal prosecution. Attrial seven photographs depicting the body or the deceased from various angleswere offered in evidence by the state. Deiendant's counsel objected to their admission on the basis that the pathologist could testity to the facts in the pictures and the "pictures areunreasonable and ~nflarnmatory". Counsel cited Statev. Bischert, 131Mont. 152, 308 P.2d 969. The trialcourt reserved itsruling atthis time inorder to see if the photographs would be connected up with the crime charged. The pathologist, Dr. Newrnan, testified that blood hemorrhaging in the boy's stomach cavity had caused the distension. This distension became a factual issue during the trial, or more precisely, the time that distension 

### of the stomach occurred became an issue. Dr. Newrnan further testified that "the fatal blow was delivered about ten minutes prior tothe cessation of lifeof the infantf'; that the "blow" caused the hemorrhaging and the hemorrhaging caused the stomach distension. state's exhibit #4, a photograph of the left sideof thebody, was admitted into evidence over objection for the solepurpose of showing the nature and extent of the distension of the stomach. This Court in Statev. Warrick, 152 Mont. 94, 100, 446 P.2d 916, held that "color photographs thathave probative value are admissiblet', citing Statev. Rollings, 149Mont. 481, 428 P.2d462. Photographs that are "probative and material" areadmissible. Statev. Logan, 156 Mont. 48, 60, 473 P.2d 833. In Statev. Quigg, 155Mont. 119, 145, 467 P.2d 692, this Court cited Statev. Campbell, 146Mont. 251, 261, 405 P.2d 978: '"~hotographsareadmissible for the purpose of explaining and applying the evidence and assisting the court andjury inunderstanding the case. Fulton v. Chouteau County ~armers' Co., 98 Mont. 48, 

### 37 P.2d 1025. When the purpose

### d an exhibit is toin£ lame the minds of thejury or excite the feelings rather than to enlighten the jury as toany fact, it should be excluded. Statev. Bischert, 131Mont. 152, 308 P. 2d 969.'" See also: Statev. Adams, 76 Wash.2d 650, 458 P.2d 558; State

v. Hill, 193Kan. 512, 394 P.2d 106; People v. Spencer, 60 C.2d

Here, the photograph was properly admitted toshow the nature and extent of the stomach distension. The photograph allowed thejury tojudge whether or not suchan abnormal stomach condition would have been noticeable had it existed severalhours prior todeath, as contended by two witnesses for the defendant. Defendant alleges error in that the prosecution was continuously "flashing" an elaborate setof photographs of the boy's body before the jury. This specification of error is addressed toactions of the prosecution which arenot recorded in the transcript. The transcript does show the prosecution did attempt, unsuccessfully, tohave such photographs admitted into evidence. Nowhere does the record indicate that the photographs were "flashed" before thejury. ~efendant's second specification alleges error in the admission into evidence of five photographs depicting the conditionof the interior of defendant's home as it looked shortly after young Donald Cuchine was pronounced dead atthe hospital. The basis for defendant's objection is that these photographs are not relevant or material. Four of the photographs, State's exhibits #8, #9, #10, and #11, allshow the dining area of defendant's home; they show the position of a black shoe or pair of black shoes which defendant

was alleged tohave used to strikethe boy. Exhibits !I8 and #9 show a stick on the dining room table, however 

### its connection with the crime was never established. Allfour exhibits show the position of the pajamas worn by the deceased on the evening of his death. The pajamas were material tothe theory of the state's case. The position, aswell as the condition, of the pajamas indicated that certain unexplained events had taken place between the time the babysitters leftdefendant's home and the time the Butte firemen arrived. Exhibits /,I0 and #14 show the broken telephone cord, which played a part in the state's theory of the case in so faras it tried to prove that some sortof violent activityhad taken place atthehome after the babysitters had left. While the stickdoes not appear tobe relevant, we are or the opinion that the pajamas, shoes and telephone cord arerelevant and material and the photographs depicting these items were properly admitted. Evidence that is admissible for one purpose, but not for another, must not be excluded. Teesdale v. Anschutz Drilling Co., 138Mont. 427, 357 P.2d 4, citing Edquest

v. Tripp & Dragstedt Co., 93 Mont. 446, 19 P.2d 637.Defendant alleges error in the use of a chart during the trialupon which the pathologist, Dr. Newman, was asked to locate the position oivarious cuts and bruises. This chart

was used by Dr. Newman for illustrative purposes. During his testimony when it developed that many of the scars were old and healing and had nothing todo with the events of April 10-11, the trialcourt quiteproperly admonished the jury not toconsider any of the evidence concerning those body scars. The exhibitwas not allowed tobe considered as evidence by the jury. Deiendant made no objection to the ruling of the trial for the first time court, so the matter cannot now be raised/on appeal. Too, defendant failed toask for any curative instruction, if one were needed. Defendant's third specification oi error is that the trial court improperly allowed the prosecution toimpeach its own witnesses in that inconsistent statements were elicited from both Leland and Darla Docken. We do not believe that we have

a case of impeachment here. What we do have 

### is merely inconsistent statements offered by a witness on direct examination. No showing was made that such inconsistent statements were harmful to the defendant's case. If anyone derived any benefit from the inconsistent statements of Leland and Darla Docken, it should have been the defendant. It was for thejury todecide the weight that should be given to these two witnesses' testimony. Defendant's fourth contention 

### is that the evidence is insufficient to support theverdict. We find no merit in this contention. While the bulk of the evidence presented by the statewas circumstantial, therewas one witness who offeredeyewitness evidence. DarLa Docken, defendant's sister-in-law, testified that she saw the defendant strikeDonald Cuchine with a shoe and a belt; she heard Donald screaming; and, that defendant was hollering atDonald sometimejust prior to~onald's death. The testimony of Darla Docken combined with the testimony of the pathologist as tothe cause of death (blood vessel rupture, caused by a heavy blow tothe abdomen and that blow

was delivered approximately ten minutes prior todeath), plus the further fact that defendant was the last person to be with the boy prior tohis death, are sufticient for a jury toreach

a verdict that defendant was guilty of manslaughter. Defendant's last speciiication of error 

### is that the trial court erred innot granting hismotion for either a mistrial or


### a directed verdict atthe close of the state's case-in-chief. The allegations of prejudicewhich gave rise todefendant's motion for a mistrialhave been discussed in our treatment of the firstthree specifications of error. Since there was no prejudice, defendant's motion for a mistrial was properly denied. The rulegoverning the granting otmotions for directed verdicts is stated in Statev. Yoss, 146 Mont. 508, 514, 409

"A directed verdict ina criminal case in this jurisdiction isgiven onlywhere the State fails toprove its caseand there isno evidence upon which a jury could base its verdict. Statev. Widdicombe, 130Mont. 325, 301 P.2d 116; State

### v. Welch, 22 Mont. 92, 

### 55 P. 927; Statev. Rother, 130Mont. 357, 303 P.2d 393." See also: Section 95-1909(i), R.C.M. 1947.Here, therewas ample evidence presented upon which 

### a jury could have based its verdict. Since the sufficiency of the evidencewas discussed heretofore, we need not delineate the evidence which was presented during the state's case-in-chief. The judgment isaffirmed. / \

Associate Justice



# / '/chief Justice -

/' 

### , /

# ,Associate Jus-tices 

# // 

# // Hon. Jack Shanscrom, District ' Judge, sitting for Juscice Wesley Castles.