Butler v. State ( 1975 )

Hill, Justice,

dissenting.

This is an armed robbery case.

In Division 2, the court approves the admission into evidence of a photograph (in color) of the victim of a murder. None of the decisions cited by the court holds that in an armed robbery case, photographs of a murder victim are admissible in evidence.

In Thompkins v. State, 222 Ga. 420 (5) (151 SE2d 153), it was held that a photo of the dead victim was admissible in a case of robbery by force and intimidation. However, in that case the victim "went limp” while being held by the defendant. There the court conceded that the photographs of the deceased, taken a week after the crime, were highly prejudicial but relevant to show the location and conditions under which the robbery took place.

Here it is not contended that these defendants ever went into the store or ever saw the deceased. Here there were other photographs of the store, inside and outside.

The other decisions relied on as authority were photos of murder victims in murder cases, photos of robbery victims in robbery cases, or photos of rape victims in rape cases.

It might be argued that these defendants could have been charged with felony murder and thus the photograph of the victim would have been admissible. They were not so charged. Why we do not know, but will presume that the district attorney and grand jury acted properly in not indicting these defendants for felony murder. We should not approve the admission into evidence of this photograph on the basis that if they had been indicted for felony murder, the photo would have been admissible.

I must respectfully dissent. I am authorized to state that Justice Gunter joins in this dissent.