A Treatise on the Law of Homicide in the United States: To Which is Appended a Series of Leading Cases.
Francis Wharton, LL.D.
Philadelphia: Kay and Brother, 1875
Photographs
§ 708. Photographs.—In Ruloff's case, just cited, Judge Allen said: "Objection was also taken to the admission of the photographic likenesses of the two persons found drowned. Evidence was given of the manner in, and disadvantageous circumstances under which they were taken; and the evidence was that they were not artistic pictures, nor in all respects the most perfect likenesses that could be taken. This was fully explained by the artist, and the reasons why they were not more perfect stated. They were submitted to the witnesses, not as themselves, and alone sufficient to enable them to identify the persons with entire certainty, but as aids, and with other evidence, to enable the jury to pass upon the question of identity. They were the best portraits that could be had, and all that could be taken. The persons were identified by other circumstances, the clothes they wore and the articles found upon their persons, and their general description; and the photographs were competent, although slight, evidence in addition to the other and more reliable testimony. We are of the opinion that it was not error, under the circumstances, to admit them as evidence for what they were worth. By themselves, they would have been of but little value; but they were of some value as corroborating the other evidence identifying the bodies. There was no error of substance committed upon the trial; and the judgment must be affirmed, and the proceedings remitted to the court below, to proceed upon the conviction and pronounce sentence of death as prescribed by law." 1
So in a remarkable case, decided finally in Pennsylvania in 1874, 2 Agnew, C. J., said: "The great question in the case was the identity of A. C. Wilson as W. S. Goss. This was established by a variety of circumstances and many witnesses, leaving no doubt that Goss and Wilson were the same person, and that the body found in Baer's Woods was that of Goss. All the bills of exceptions except one relate to this question of identity, the most material being those relating to the use of a photograph of Goss. Many objections were made to the use of this photograph, the chief being to the use of it to identify Wilson as Goss, the prisoner's counsel regarding this use of it as certainly incompetent. That a portrait or miniature painted from life, and proved to resemble the person, may be used to identify him, cannot be doubted, though, like all other evidences of identity, it is open to disproof or doubt, and must be determined by the jury. There seems to be no reason why a photograph proved to be taken from life, and to resemble the person photographed, should not fill the same measure of evidence. Letters from Wilson, identified as the handwriting of Goss; a peculiar ring belonging to Goss, worn upon the finger of Wilson; the recognition by Wilson of A. C. Goss as his brother; packages addressed to A. C. Goss, and envelopes bearing the marks of the firm with which W. S. Goss had been employed, coming and going to and from Baltimore, and many other circumstances following up the man Wilson, leave no doubt of his identity as Goss, independently of the photograph. The objection to the proof of Goss's habits of intoxication is equally untenable. True, the habit is common to many, and alone would have little weight; but habits are a means of identification, though with strength in proportion to their peculiarity. The weight of the habit was a matter for the jury. It is unnecessary to follow the bill of exceptions in detail. They all relate to facts and circumstances as to the question of identity. If the bills of exception are many, they only denote that the circumstances were numerous, and in this multiplication consists the strength of the proof. They are many links in a chain so long that it encircles the prisoner in a double fold. The questions put to G. P. Moore, A. H. Barintz, and A. R. Carter were unobjectionable. Whether they really would not identify the dark and swollen face of the corpse, it was not for the court to decide. The weight belonged to the jury. There was no error in permitting the jury, after their return into the court for further instructions, to take out with them, at their own request, the teller's check, due-bill, and applications for insurance papers, which had been proven, read in evidence, and commented on in the trial. The appearance, contents, and handwriting of these documents were no doubt important to be inspected by the jury, who could not be expected to carry all these features in their minds. It is customary in murder cases to permit the jury to take out for their examination the clothing worn by the deceased, exhibiting its condition, the rents made in it, the instrument of death, and all things proved and given in evidence bearing on the commission of the offence."
§ 709. But photographs, while sometimes giving an unmistakable likeness of the object photographed, often, as is a matter of ordinary experience, completely fail in this respect. Photographs of the dead, in particular, are open to this criticism. Of physical scenery, photographs are still less reliable, depending much on the conditions of light and shade under which they were taken. Thus in the Tichbourne perjury case, the defence [sic] put in evidence a photograph of a "grotto," the character of which was involved in the issue; and this photograph was so unreliable as to invoke the severe criticism of the court. But the question of accuracy is for the jury: the photograph, if proved to be fairly taken from the disputed object, is clearly admissible. 3