¶1(concurring).
¶2I do not agree with the opinion prepared by Presiding Judge McDONALD but concur in the affirmance of the conviction and the holding that the admission in evidence of the pictures did not constitute reversible error.
¶3The learned and experienced trial judge did not err in admitting the pictures under the rule stated in Ray v. State, 160 Tex.Cr.R. 12, 266 S.W.2d 124, which followed the holding in Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625, and was re-affirmed in Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112.
¶4Reference to the opinions in the cited cases will reveal that the point of disagreement was not as to the rule, but whether or not there was a disputed issue in the case which the exhibit could tend to solve.
¶5I do not construe any of the cases which have come to my attention as holding that a gruesome and inflammatory picture is admissible in a murder case simply because the indictment alleges malice and the picture may be of assistance to the state in ■obtaining a verdict of murder with malice. If there be a case which so holds, I agree that it should be overruled.
¶6I understand the rule to be that a picture, though gruesome and inflammatory, is admissible if it serves to illustrate a disputed issue, whether it be the nature of the wounds, intent to kill, the issue of whether the killing was with malice or without malice, or was voluntary rather than excusable or justified, or any other material disputed issue.
¶7The pictures were admitted on the disputed issue of whether the killing was upon malice, as charged, or was without malice. Such disputed issue was submitted to the jury in the court’s charge, in accordance with Art. 1257c, Vernon’s Ann.P.C. That the pictures were inflammatory, or that the state introduced other evidence on the disputed issue does not alter the rule. The trial judge was not in error in concluding that the pictures were admissible as tending to solve a disputed issue.