No. 12111 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

DAN PEL 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, Assistant Attorney General, 

Helena, Montana. 

Lawrence G, Stimatz, County Attorney, Butte, Montana. 

J. Brian Tierney, Deputy County Attorney, Butte, 

Montana. 

Submitted: February 15, 1972 

Decided : ApR 14 1972 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

Defendant was convicted of mans laughter by jury verdict in 

the district court of the second judicial district, Silver Bow 

County, the Hon. James D. Freebourn, judge presiding, and sentenced to seven years in the state penitentiary. From that 

verdict and judgment, defendant appeals. 

On the night of April 10-11, 1970, at approximately 12:37 

a.m., the Butte fire department received a call requesting it 

to proceed to defendant's home with a resuscitator. Upon arrival, 

the firemen found defendant's stepson, three year old Donald 

Cuchine, in a state of apparent lifelessness. The firemen's 

attempts to revive the child were unsuccessful so they rushed 

him to the hospital, where he was pronounced "dead on arrival". 

A visual examination and an internal autopsy of the body 

revealed: the boy's body was covered with bruises and his 

stomach was distended; there was one group of bruises that fit 

the pattern of a person's knuckles; the boy had received prior 

injuries to his ribs; and, there was an adhesion or scar tissue 

on the mesentery 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 to bleed to death 

internally. The distended stomach was 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 to death. 

Both defendant and his wife, 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 Docken 
and Mike Mazzola. When defendant returned home alone around 

11:30 p.m., young Donald Cuchine was asleep on the living room 

couch. Defendant then drove the two babysitters home, leaving 

Donald unattended. 

Both of the babysitters testified that when defendant 

returned home he appeared to have been drinking and was in a 

"mean mood". They also testified that when they left defendant's 

home the house was neat and orderly and Donald Cuchine did not 

have any bruises on his face. 

The events following defendant's return to his 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 fall off the living room couch, 

Donald "had wet himselfP', so defendant changed his shorts and 

pa jamas. 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 fell okf 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 the wall. When he returned, 

Donald appeared to be "passing out" so defendant ran over to his 

sister-in-law's house and tried to locate his wife. Failing to 

find her, he returned home and administered mouth-to-mouth resuscitation to Donald, 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, the Butte fire depa rtment received its call from the telephone opera tor. 

Defendant raises five issues on appeal, alleging: 

1. The use of inadmissible photographs and the chart 

was prejudicia 1 to the defendant and therefore reversible 

error. 

2. All reference to the broken telephone, a pair of 

shoes, a stick, and a pair of pajamas was immaterial and irrelevant and only served to prejudice the minds of the jury 

against the defendant. 

3. The prosecution was allowed to impeach 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 the jury to acquit, should have been 

granted. 

The first issue concerns the use of photographs of the 

deceased in a criminal prosecution. At trial seven photographs 

depicting the body or the deceased from various angles were 

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 are unreasonable 

and ~nflarnmatory". Counsel cited State v. Bischert, 131 Mont. 

152, 308 P.2d 969. The trial court reserved its ruling at this 

time in order 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 to the cessation of 

life of the infantf'; that the "blow" caused the hemorrhaging 

and the hemorrhaging caused the stomach distension. state's 

exhibit #4, a photograph of the left side of the body, was admitted into evidence over objection for the sole purpose of 

showing the nature and extent of the distension of the stomach. 

This Court in State v. Warrick, 152 Mont. 94, 100, 446 P.2d 

916, held that "color photographs that have probative value are 

admissiblet', citing State v. Rollings, 149 Mont. 481, 428 P.2d 
462. Photographs that are "probative and material" are admissible. 

State v. Logan, 156 Mont. 48, 60, 473 P.2d 833. In State v. Quigg, 

155 Mont. 119, 145, 467 P.2d 692, this Court cited State v. 

Campbell, 146 Mont. 251, 261, 405 P.2d 978: 

'"~hotographs are admissible for the purpose of 

explaining and applying the evidence and assisting 

the court and jury in understanding the case. Fulton 

v. Chouteau County ~armers' Co., 98 Mont. 48, 37 P.2d 

1025. When the purpose d an exhibit is to in£ lame the 

minds of the jury or excite the feelings rather than 

to enlighten the jury as to any fact, it should be 

excluded. State v. Bischert, 131 Mont. 152, 308 P. 

2d 969.'" 

See also: State v. Adams, 76 Wash.2d 650, 458 P.2d 558; State 

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

Here, the photograph was properly admitted to show the 

nature and extent of the stomach distension. The photograph 

allowed the jury to judge whether or not such an abnormal 

stomach condition would have been noticeable had it existed 

several hours prior to death, as contended by two witnesses 

for the defendant. 

Defendant alleges error in that the prosecution was continuously "flashing" an elaborate set of photographs of the 

boy's body before the jury. This specification of error is 

addressed to actions of the prosecution which are not recorded 

in the transcript. The transcript does show the prosecution 

did attempt, unsuccessfully, to have such photographs admitted 

into evidence. Nowhere does the record indicate that the photographs were "flashed" before the jury. 

~efendant's second specification alleges error in the admission into evidence of five photographs depicting the condition 
of the interior of defendant's home as it looked shortly after 

young Donald Cuchine was pronounced dead at the 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, all show the dining area of defendant's home; they show the 

position of a black shoe or pair of black shoes which defendant 

was alleged to have used to strike the boy. Exhibits !I8 and #9 

show a stick on the dining room table, however its connection 

with the crime was never established. All four exhibits show 

the position of the pajamas worn by the deceased on the evening 

of his death. The pajamas were material to the theory of the 

state's case. The position, as well as the condition, of the 

pajamas indicated that certain unexplained events had taken place 

between the time the babysitters left defendant'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 far as it tried to prove that some sort of violent 

activity had taken place at the home after the babysitters had 

left. 

While the stick does not appear to be relevant, we are or 

the opinion that the pajamas, shoes and telephone cord are relevant 

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., 138 Mont. 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 

trial upon which the pathologist, Dr. Newman, was asked to 

locate the position oi various 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 to do with the events of April 10-11, 

the trial court quite properly admonished the jury not to consider any of the evidence concerning those body scars. The 

exhibit was not allowed to be 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 to ask for any curative instruction, if one were 

needed. 

Defendant's third specification oi error is that the trial 

court improperly allowed the prosecution to impeach 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 the jury to decide the weight 

that should be given to these two witnesses' testimony. 

Defendant's fourth contention is that the evidence is insufficient to support the verdict. We find no merit in this 

contention. While the bulk of the evidence presented by the 

state was circumstantial, there was one witness who offered 
eyewitness evidence. DarLa Docken, defendant's sister-in-law, 

testified that she saw the defendant strike Donald Cuchine 

with a shoe and a belt; she heard Donald screaming; and, that 

defendant was hollering at Donald sometime just prior to ~onald's 

death. The testimony of Darla Docken combined with the testimony of the pathologist as to the cause of death (blood vessel 

rupture, caused by a heavy blow to the abdomen and that blow 

was delivered approximately ten minutes prior to death), plus 

the further fact that defendant was the last person to be with 

the boy prior to his death, are sufticient for a jury to reach 

a verdict that defendant was guilty of manslaughter. 

Defendant's last speciiication of error is that the trial 

court erred in not granting his motion for either a mistrial or 

a directed verdict at the close of the state's case-in-chief. 

The allegations of prejudice which gave rise to defendant's 

motion for a mistrial have been discussed in our treatment of 

the first three specifications of error. Since there was no 

prejudice, defendant's motion for a mistrial was properly denied. 

The rule governing the granting ot motions for directed 

verdicts is stated in State v. Yoss, 146 Mont. 508, 514, 409 

"A directed verdict in a criminal case in this 

jurisdiction is given only where the State fails 

to prove its case and there is no evidence upon 

which a jury could base its verdict. State v. 

Widdicombe, 130 Mont. 325, 301 P.2d 116; State v. 

Welch, 22 Mont. 92, 55 P. 927; State v. Rother, 

130 Mont. 357, 303 P.2d 393." 

See also: Section 95-1909(i), R.C.M. 1947. 
Here, there was ample evidence presented upon which a jury 

could have based its verdict. Since the sufficiency of the 

evidence was discussed heretofore, we need not delineate the 

evidence which was presented during the state's case-in-chief. 

The judgment is affirmed. 

/ 

\ 

Associate Justice 

/ '/chief Justice - 

/' 

, / , Associate Jus-tices // 

// Hon. Jack Shanscrom, District 

' Judge, sitting for Juscice 

Wesley Castles.