In this еase defendant was separately charged and convicted of the first degree murder of one Sharon Williams. Thе evidence was that defendant and a companion, who were fugitives from a jailbreak, murdered Sharon Williams and her parents in their home in a remote area of Douglаs County while committing an armed robbery. Other charges against defendant and his accomplice were in separаte indictments. The murders were brutal and the evidence of dеfendant’s guilt was overwhelming.
The sole assignment of error on appeal is that several color pictures, takеn during the autopsies of the victims, received in evidencе and shown on a screen over proper objeсtion, were cumulative, gruesome and prejudicial, meriting reversal.
Without relating the details, our review of the record indicates that at least three of the pictures werе extremely gruesome and unnecessary to further illustrate whаt the pathologist who performed the autopsies had already explained, and illustrated with drawings. They were simply cumulative. The reconstruction of the crimes which the prosecutor claims they evidenced was not, in our opiniоn, further aided by them. They are so revolting as to be what other jurisdictions have held is prejudicial and cause for revеrsal.
See Oxendine v. State,
However, we are mindful of what the Oregon Supreme Court said in
State v. Freeman,
“There is no reason to assume that the exhibits were employed to produce prejudice for its own sake, nor that their number (14) was excessive. The number of pictures аdmitted was within the sound discretion of the trial court. We find no abuse of that discretion. * * * The trial judge is in the best position to regulаte the flow of evidence. In his discretion he will ordinarily exеlude that which is clearly cumulative. Unless an abuse of discrеtion is shown, there is no error in permitting the state to put on suсh evidence as it may have. It would be unrealistic to say, аfter a verdict, that the state must be penalized for unnecessary roughness merely because an appellate court might believe that there would have been adеquate proof to support the verdict without the chаllenged evidence. Further, to do so would be to speсulate. As a practical matter, no one knows when thе jury has had exactly enough evidence to satisfy the statе’s burden of proof.
“It must be remembered that the condition оf the bodies Avas entirely the handiAvork of the perpetrаtors of the crime. The pictures show the bodies exactly as they were found * * (Emphasis supplied.)
A pronounced difference between the pictures in Freeman and those questioned here is that here the gruesomeness of the three pictures which we think werе most cumulative stems largely from the pathologist’s dissectiоn. We think that these three, if not more, should have been excluded. However, the evidence of *370 guilt of first degree murder was so great that we are satisfied the prejudicial evidеnce could have had no influence on the verdict.
Affirmed.