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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 sen-tenced 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". De-fendant 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 resus-citation 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 de- pa 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 ir-relevant 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 ad-mitted 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

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