§ 157. Photograph—premises—when admissible in evidence.
Where an action was brought to recover damages of defendant for injuries indicted upon plaintiff's possession, etc., a photograph of plaintiff's premises, as affected by defendant's use and occupation of the same, is competent evidence as an aid to the jury in applying the evidence and showing the condition of the premises at the time it was taken. The court said: " The photographic view of the cellar was an appropriate aid to the jury in applying the evidence, as it was taken in the month of November, and showed the condition of the premises at that time." 1
A telegraph company in England was indicted for obstructing a highway. That the public is prima facie entitled to the use of every portion of an ordinary highway lying between the fences inclosing it is matter of law, though what is a permanent obstruction placed on a highway, rendering it less commodious than before, and so amounting to a public nuisance, is a question of fact for the jury. Photographs are allowed to be used on the trial of an indictment for an obstruction to a highway to show the nature of the locus in quo. 2
§ 158. Same—evidence—action against highway.
In an action against a town to recover for injuries caused by a defect in the highway, which the town was bound to keep in repair, a photograph of the place is admissible in evidence, if verified by proof that it is a true representation, to assist the jury in understanding the case; and whether it is sufficiently verified is a preliminary question of fact, to be decided by the judge presiding at the trial, and his decision thereon is not subject to exception. The court disposed of this question thus: "A plan or picture, whether made by the hands of man or by photograph, is admissible in evidence, if verified by proof that it is a true representation of the subject, to assist the jury in understanding the case. * * * Whether it is sufficiently verified is a preliminary question of fact, to be decided by the judge presiding, and not open to exception." 3
§ 159. Photographs of two dead men—murder.
Upon a criminal trial photograph likenesses, taken after the death of the person, when it is material to identify the dead body, may be exhibited to witnesses acquainted with such persons in life, as aids in the identification. One Ruloff was convicted for the murder of Merrick, at Binghamton, New York, on August 17, 1870. Deceased was a clerk in a store; he and another clerk (Burrows) slept in the store, awoke about two o'clock, and saw three men disguised near their bed; they had fixed their packages of goods ready for removal. The clerks arose; Burrows engaged one; deceased went to assist him, when one of the others shot him in the head, and he died instantly. The burglars made their escape. A day or two later, the bodies of two dead men were taken from the Chenango river in the immediate vicinity, whom the evidence tended to show were two of the burglars. About this time Ruloff was found skulking in the neighborhood and was arrested as and for the other burglar and the murderer of Merrick. Further evidence identified the drowned men as individuals intimately connected with Ruloff, the prisoner. Photographic likenesses of the dead men were taken, and were submitted to their relatives and acquaintances, who were permitted to give their opinion, as witnesses, as to their identity. In Ruloff's chests in New York were found burglar's tools, and they were given in evidence. He was convicted, and the judgment was affirmed. As to the photographs as a means of identifying the dead men, the court said: "Objection is also taken to the admission of the photographic likenesses of the two persons found drowned. Evidence was given of the manner in, and the 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, why they were not more perfect, stated. They were submitted to the witnesses, not as themselves alone sufficient to enable them to identify the persons with entire certainty, but as aids, with the 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 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 little value, but they were of some value as corroborating the other evidence identifying the dead bodies." 4
§ 160. Widow-identity-photograph of dead husband.
The court will take judicial notice of the art of photography, the mechanical and chemical processes employed, the scientific principles on which they are based, and their results. A photograph shown by the widow to be a good likeness of her husband, and an indorsement thereon, in his handwriting, of his name, date and place of its execution, are admissible in evidence to show the identity of the husband and a murdered man, when offered in connection with the testimony of the photographer that it was the likeness of a man of the same name as the husband, taken at the place and about the time indorsed on it, and the further testimony of a witness, who saw deceased shortly before and after his death.
One Luke having been murdered in Alabama by disguised men on July 12,1870, his widow brought suit, under the act of legislature of December 28, 1868, against the county of Calhoun, to recover the statutory penalty of $5,000. She never resided in the United States, but was a subject of Great Britain and resided in Canada, which country her husband left and went to Alabama a few months before his death. To show that the dead man was her husband, she offered in evidence the photograph, as above stated, of her deceased husband. It was further shown by the witness Smith, the deputy sheriff, from whom Luke, the deceased, was taken by the persons in disguise, and who saw the body after his death, that it was a good likeness of the murdered man. The photograph was held to have been properly admitted in evidence. The widow recovered, as the sequel showed, a judgment for the penalty of $5,000. The county appealed, and pending the appeal, the legislature repealed the law, and she recovered nothing by her suit. 5
§ 161. Photograph—in case of bigamy—identity.
It was held in England, in 1864, that, on an indictment for bigamy, a photographic likeness of the first husband might be allowed to be shown to the witness present at the first marriage, in order to prove his identity with the person mentioned ;n the marriage certificate. Mary Tolson was indicted for that on September 1, 1860, she feloniously intermarried with one Harris, her first husband being then alive. The certified extract from the register of the marriage register book of a regiment, showing a marriage, in 1855, between one E. W. Tolson and a person of the same name as the prisoner, was produced and put in. WILLES, J.—"Evidence of identity will be necessary." A witness present at the marriage was called and proved the identity of the prisoner, and then, in order to prove the identity of the first husband with the person mentioned in the certificate. it was proposed to show the witness a photograph taken from the prisoner, who had said it was that of her first husband, and to ask the witness if it represented the man whom he had seen married: this was permitted, and the witness said there was a resemblance, and she believed the man was the same. A sergeant in the same regiment was called, who said that he knew the man named E. W. Tolson in that regiment, who was stationed at Canterbury in 1858, and went to India that year, where he saw him in 1863. Being shown the photograph, he said that was the man, and there was no other man of the same name in the regiment. This was admitted as proof of the first marriage. The second marriage was proved by the second husband, the prosecutor, who was cross-examined as to his credibility, and it was he who spoke of the prisoner's declaration that the photograph was that of her first husband WILLES, J.—(to the jury) "The photograph was admissible be cause it is only a visible representation of that image or impression made upon the minds of the witnesses by the sight of the person or the object it represents; and therefore is, really, only another species of the evidence which persons give of identity, when they speak merely from memory. You must be satisfied of the identity of the prisoner on the occasions, both of the first and second marriage, of which there is no evidence but that of the prosecutor, whom you are not bound to believe." 6 The jury returned a verdict of "not guilty."
§ l62. Use of photograph in case of bigamy.
In the days of Mr. Roscoe's writing he refers to the fact that photographic likenesses may often be used for the purpose of identification, that it was constantly done in actions for divorce, and that it had then been allowed even in a criminal trial. Where a woman was tried for bigamy a photograph of her first husband was allowed by WILLES, J., to be shown to witnesses present at the first marriage, in order to prove his identity with the person mentioned in the certificate of marriage. Now they are used in many cases in civil and criminal causes, and not confined to personal identity. 7
§ 163. Same—proof of good likeness—expert.
Photographic copies of persons and things are used only for the purpose of identifying the original, and a photographer is admissible as a witness to prove the character of the execution of the photograph. And although none but experts as witnesses may testify as to the execution of the photograph, it was held in Alabama, in 1863, that to enable a person to determine whether the picture resembled the original, required no special skill in, or knowledge of, the photographic art; and that on that question, a person for whom a picture had been taken, although possessing no special skill or knowledge of the art, may testify that the picture was a good likeness. 8
§ 164. Same—state of health—life insurance.
An important case was decided in Philadelphia, in 1873. It was an action upon a policy of life insurance upon the life of Euricka Random for $5,000. The defense was, fraudulent representations in the application. She died suddenly, ten days after the application was made, and the weight of evidence was that she died of abscess of the right lung, as shown by the post-mortem examination. Plaintiff produced a photograph of the deceased, which was proved to be a correct and truthful representation of her a week before her death. The photograph was then shown to the jury, over the objection of the defendant. The court said: "But we think that the photograph thus proved and verified by witnesses who saw the original at a period approximating so near the date of her contract of insurance, was competent to go to the jury as evidence of her apparent bodily condition at that time." 9
§ 165. Pictures and inscriptions—evidence of pedigree.
The rule of law as to the admissibility of photographs in evidence seems to be, that it is only where the original cannot be produced that they can be received, under the rule admitting secondary evidence; then the photographic copy, when properly proven, is of great value, i. e., of persons dead or who cannot be produced in court; it may then be used to identify the person it purports to represent, but the picture must, in all cases, be duly authenticated. In the Camoy Peerage Case, one of several coheirs to a barony in abeyance which had been created by a writ of summons and sitting in Parliament, was attainted of high treason. His son and heir was restored in blood only, by act of Parliament, expressly excepting honor and hereditaments. It was held to be competent to the crown to terminate the abeyance of the barony in favor of the heir of the attainted co-heir, or of the heir of any other co-heirs, and that the right to terminate the abeyance in favor of any of the other co-heirs was not affected by the attainder, and that all pedigrees produced from the custody of a person whose ancestor was connected by marriage with the family described in the pedigree, are admissible as evidence to show the state of family; and an inscription on an old portrait of one of the family, produced from the same custody, was admissible for the same purpose. In the course of the investigation, the committee said that as there was a person who could give a better account of the history and custody of the documents presented, he ought to be called. The same witness was about giving, in an inscription on a picture which he saw at Raynham Hall. It was the picture of a youth, placed in a fixed panel over the fireplace in the billiard-room; and the inscription was "Lewknor, brother to Mary, the first wife of Horatio Lord Townsend," objection was made but it was overruled and this statement was received in evidence. 10
§ 166. Two photographs of child—rule in New York.
The New York court held that photographic pictures, when sworn to be correct resemblances of the person or thing,, are competent as evidence. One Cowley was indicted under the statute of 1876—to prevent and punish wrongs to children—charged with having neglected to give a child " Victor," in the custody and charge of the said defendant, proper food, clothing, etc., causing and permitting the health of the child " Victor " to be impaired and injured, and failing to give him proper medical attendance when he was ill, etc. The prosecution offered in evidence two pictures of the child—one taken before he went into the custody of the defendant, and the other taken two weeks after he went out of such custody—to show the difference in appearance; both proved to be correct pictures, except that the latter, as the doctor said, owing to its position, did not show the emaciation of the child to be as great as it really was. Upon the competency of this evidence, they were held to be admissible. The court said: "We know not of a rule applicable to all cases, ever having been declared, that they are not competent. Nor do we see, in the nature of things, a reason for a rule that they are never competent. We do not fail to notice, and we may notice judicially, that all civilized countries rely upon photographic pictures for taking and presenting resemblances of persons and animals, of scenery and all natural objects, of buildings and other artificial objects. It is of frequent occurrence that fugitives from justice are arrested on the identification given by them. "The Rogues' Gallery " is the practical judgment of the executive officers of the law on their efficiency and accuracy. They are the signs of the things taken. A portrait or miniature taken by a skilled artist, and proved to be an accurate likeness, would be received on a question of identity or the appearance of a person not producible in court. Photograph pictures do not differ in kind of proof from the picture of a painter. They are the product of natural laws and a scientific process." 11
§ 167. Photograph evidence—murder for life insurance.
The courts now judicially recognize photographs as a pro per means of evidence to prove identity of persons, things, objects, and premises, in all proper cases, and when they are shown to be good likenesses, and correct resemblances. And they may be given in evidence to prove identity. On the trial of one Udderzook in Pennsylvania for the murder of "Goss alias Wilson," a photograph of Goss, testified to be like the mutilated body found, was evidence to be submitted to the jury, that the body was that of Goss. The prisoner and the deceased were brothers-in-law, having married sisters. Prior to February 2, 1872, Goss had obtained insurance on his life in several companies to a large amount, for the benefit of his wife. About February, 1872, he occupied a shop about three miles from Baltimore, and resided in the city, and was engaged in gilding picture frames. On February 2, 1872, the shop was destroyed by fire, and among the ruins was found the remains of a human body, alleged to be the body of Goss. The prisoner made the preliminary proofs as to identity, etc., to obtain the money for the wife of Goss. Payment was refused, the companies denying that it was the body of Goss, and she brought suit and recovered a verdict. While a motion was pending for a new trial, other facts developed, which led to the arrest of Udderzook. On the 9th of July, 1873, a dead body was found concealed in the woods near "Bear's Woods " in Pennsylvania, which by means as above stated, and by letters and proof of handwriting, showed it to be the body of Goss, and to connect the prisoner with the terrible tragedy. 12 Since the discovery of the art of photography it has been called into requisition in the court for various purposes where the question of identity has been involved, and the courts take judicial cognizance of it as a means of aiding the jury, not only to identify persons, but objects, things, scenery, places, premises and handwriting etc. *
§ 168. Dead body—photographs—clothing—wound.
The same authors, at § 673, vol. 3, give the following curious English case of identity by photographs: "In 1868, in all probability an escaped lunatic, named Heasman, was found in a cupboard of a house in Hackney, England, dead. Great publicity had been given to the circumstance attending the discovery of his body, and the result was that a crowd of persons, most of them bringing photographs, visited the dead-house to see if the features corresponded with those of missing friends. Among the visitors was Dr. Ellis, medical superintendent of St. Luke's Hospital, who recognized the body, showed that the clothing were those of a patient in St. Luke's, and declared that the name of the deceased was Heasman—the name of a patient who had recently escaped from the establishment. The name on the stockings worn by deceased corresponded with this statement. On the following day the brother of the deceased confirmed the physician's view. But strong evidence was produced to the effect that the corpse was that of another person. An engineer, who had lost a friend, produced a photograph very like the deceased; and another, Mrs. Mary Ann Banks, positively swore that the body was that of her husband, Mr. Ebenezer Charles Banks, a commercial traveler. She adhered to this statement upon oath in the coroner's court, her two sisters partially supported her, and she had one strong circumstance in favor of her statement: Before she had seen the body, she described a particular wound upon the little finger, which wound appeared to have been found, but, notwithstanding this strong proof, the great preponderance of evidence was that the body was that of Heasman." **
§ 169. Photographic view of premises—when admissible.
The rejection of a photographic view of premises, the boundaries of which are in dispute, and upon which a trespass is alleged to have been committed by placing rocks and rubbish thereon furnishes no ground of exception, if the same is offered simply as a "chalk representation," without being verified by the oath of the photographer, although the evidence of other persons is offered to show its correctness. The rejection of the photograph was held to be no ground for exception, as it was not verified. 13 Where an action was brought against a city for damages alleged to have resulted from a change made by the city in the grade of a street, after the grade had been established by the city, a photograph of plaintiff's premises, which he testified was as perfect as could be taken, was admitted in evidence to show the location and surroundings of the premises and improvements, and aid the jury in determining how far they were affected by the change made in the grade of the street. It was held to be properly admitted, a view of the premises by the jury being impracticable. 14 The same rule we find held in a New York case, where an action was brought to recover damages for injuries to the plaintiff's premises. The photograph of the premises went in evidence to the jury to aid them in understanding the case. 15 The same rule was held in Massachusetts in 1875, in an action against a town for damage for injuries resulting from a defect in the highway, which the town was bound to keep in repair. The plaintiff had the road photographed and introduced it in evidence; and that was no error. 16 This is the practice in England, where it was held to be proper. In an indictment against a telegraph company for obstructing a public highway, which, it was held, amounted to a public nuisance, the photograph of the highway, with its obstructions, was properly admitted in evidence. 17 No good reason is perceived why it should not be the practice in these cases as well as in the proof of the identity of persons in cases of homicide, to identify the accused or the deceased, or both, or in cases where it is necessary to identify handwriting, which is now the practice, in plea of non est factum, or in cases of forgery, and other cases. ***
§ 170. Photograph of handwriting—plea of non est factum.
An action was brought in Texas against an administrator, in which there was a plea of non est factum interposed against the establishment of the claim, and this presented a question of identity of handwriting, and the photographic copy was held inadmissible in evidence. The mere fact that a witness whose deposition is offered to establish a plea of non est factum is a resident of another State, and the instrument to which the plea applies is on file in a Texas court, will not authorize the introduction of evidence of his opinion of the handwriting, based on a photographic copy of the instrument attached to the interrogatories. 18
§ 171. Photographic copies—papers withdrawn—identity.
Where an action was brought for the infringement of a copyright of a play, the deposition of the defendant had been taken and filed; annexed to it, as exhibits, were the printed program of a performance at a theater in San Francisco, and certain slips cut from newspapers published at that place. The plaintiff applied for leave to withdraw these exhibits from the files, and annex them to a commission, which was about to be issued in the cause, for the examination of witnesses in San Francisco. The court ordered the originals of printed exhibits, on file as parts of the deposition, to be taken from the files for the purpose of being annexed to a commission, on condition the photographic fac simile thereof should first be made and placed on file in lieu of the originals, under the direction of the clerk. 20
In 1874 Lord COLERIDGE, the chief justice of the Court of Common Pleas of England, in answer to an application to withdraw documents to be Sent out to Bombay, to have identified the handwriting of some of them, said: "That difficulty might be got over by taking photographic copies of them, as is by no means uncommon in the present day." 20 Thus we see photography in use. The rule of law requires the best evidence. This required the production of the original papers, in all cases admitting documentary evidence as the best evidence of its genuineness. But now the photograph of the original is recognized judicially when proved to be correct; and the reason of the rule having ceased, the rule itself has ceased, and much difficulty is obviated.
§ 172. Photograph of deceased person—of handwriting.
In an Indiana case decided by the Supreme Court in 1877, a photograph of the deceased was introduced, to which exceptions were taken. The court said: "The court below allowed a certain photograph, and evidence touching it, to go to the jury, for the purpose of identifying the deceased; evidence touching a spot on the coat of the prisoner, supposed to be a blood spot, and the test of a physician in reference to the same spot; evidence of the dodging, trembling and confusion, when met by witness before and at the time of the arrest; evidence of a witness as to his having seen a man in Ripley county, some time before the commission of the crime, who resembled the prisoner; evidence touching a satchel and its contents, found near the church where the dead body was found, as belonging to the deceased; the admission of all of which the prisoner's counsel thinks was erroneous; but with careful attention, we can see no error in these rulings." 21 In a Michigan case in 1876, involving the will of one Alfred Foster, deceased, it was held that while it might not be error to permit photograph copies of a will which was in controversy to be given to the jury, with such precautions as to secure their identity and correctness, yet their use can never be compulsory, and their rejection cannot be urged as error. 22 It would seem to be error to reject any competent evidence, when it is shown to be material. But in this case, as it appeared from the opinion of the court that it was a photograph of the handwriting of the testator, and was offered to be used in comparison with a signature shown to be genuine, it was refused under the old English rule which would not permit the comparison of handwriting by the jury on account of their illiteracy.
§ 173. Photograph of handwriting—rule in Texas.
In an important case in Texas, decided in 1877, the action was brought to recover money on two instruments, one for borrowed money, $900, and one for money placed in the hands of the obligor for investment, $6,500. An attempt was made to prove the handwriting by photograph. It was there held that photographic copies of instruments sued on can only be used as secondary evidence; like letter-press copies, which may or may not be fac similes of the originals, it is a question of fact, whether a photographic copy of a writing, when offered in evidence, is a mathematically exact reproduction of the original writing. And that the mere fact that a witness whose deposition is offered to establish a plea of non est factum, is a resident of another State, and the instrument to which the plea applies is on file in a Texas court, will not authorize the introduction in evidence of his opinion of the handwriting, based on a photographic copy of the instrument which was attached to the interrogatories of the witness. 23 In this case the Supreme Court said: "In support of the admissibility of such evidence, it is contended that the court will take judicia1 notice that the photographic process secures a mathematically exact reproduction of the original, and that, therefore, evidence as to the handwriting of such a copy is as satisfactory as though it referred to the original. But certainly the exactness of a photographic copy of a writing depends on the instrument and materials used. Like a letter-press copy, it is a copy, and may be more or less imperfect. However superior to other copies, it is certainly a question of fact whether any particular photographic copy is exact or not, for photographers do not always produce exact fac similes."
§ 174. Same—rule as to proof of.
In Udderzook's case in Pennsylvania, a different rule seems to have been held, to the effect that the photographic likeness was admissible in a murder case to prove the identity of the deceased, without producing the artist to show that it was taken correctly. 24 It does not, however, seem to be well settled, whether or not the court is charged with judicial notice or knowledge of the science in such cases, or whether it is necessary to prove the photograph to be correct and an exact copy, in order to its admissibility. Lord COLERIDGE said: "It comes to this, whether the court would take judicial cognizance of photographs, as an established means of producing a correct likeness. This the court could not refuse to do. Its common use, the length of time the process has been known, the scientific principles on which it is based, all combine to make any other decision impossible." 25 ****
§ 175. Test of genuine handwriting—forgery.
The art of photography is now comparatively new, yet is being used in the courts, for various purposes, as evidence, views, landscapes, likenesses of persons and things, or copying papers, and detecting counterfeits and proof of handwriting, and for other purposes. Mr. Wharton gives the following from the Albany Law Journal: "A novel application of the art of photography was made in a case on trial before Mr. Justice DYKMAN in the Supreme Court Circuit of New York city, on Friday, June 2, 1876. The question at issue was, whether the certification of a check, purporting to have been made by the teller of the bank on which it was drawn, was genuine or a forgery. The teller swore that it was not his certificate, and several experts pronounced the signature a forgery; while other experts, called by the holder of the check, were equally positive that the signature was genuine. Thereupon the court-room was darkened, and "Professor Combs," with the aid of a calcium light magic lantern, threw an image from a photograph negative of the check, upon the wall, to show that the writing was free and flowing, and not the labored and retouched signature, which is the usual accompaniment of forgeries, and which some of the experts insisted appeared in this case. This exhibit seemed to have the desired effect, as the jury found that the certificate was genuine. 26
§ 176. Same—alleged alteration of check.
Another case is stated, not altogether unlike the above, to have been tried in the Superior Court of New York city in 1876, in the case of Funcke v. The New York Mutual Life Insurance Company. It appears that a question arose, and the main question in the case, as to whether or not a check had been raised from $100 (one hundred dollars) to $1,500 (fifteen hundred dollars). The alteration had been confessed by a notorious forger, who had been employed to make it, but who was then under sentence for another offense. Photographs were exhibited showing decided traces of the original writing; especially of the word "one" under the newly-written word " fifteen." It was objected that these traces of the original writing, which were not visible on the check itself, were also invisible on some of the photographs. It has been suggested to us by President Morton, that this was probably due to a too long exposure of the negatives not showing the traces. The ink, which had been obliterated by the use of dilute sulphuric acid, hypochloride of soda (laboraquis solution) had left only a very faint trace of oxide of iron, which, by reason of its yellow color, would have a special absorbing power for the actinic or photographic rays; but yet even in this regard the difference between this remnant of the ink and the white paper was very slight, and if the exposure was at all too long, even the yellow traces reflected light enough to render the negative opaque. It was, therefore, necessary that just time enough should be given to allow the white paper to produce its effect, when slightly yellow parts would be distinguishable by their inferior action. 27
§ 177. Same—another use—examining bread.
Another important use of the art of photography, showing its practical utility in matters in litigation, was demonstrated in an action brought by the Rumford Chemical Works against one Hecker, for infringement of a patent. Beyond what appears in the official report of the case, Mr. Wharton acknowledges the receipt from a scientist, of the following, illustrating a further use of photographs in the production of evidence, to-wit: "In the case of Rumford Chemical Works v. Hecker, 11 Blatchf. 552, the question was raised as to the relative porosity of bread made with yeast in the usual manner and that prepared with the baking powder of the complainants. Evidence was introduced by defendants as follows: 'President Henry Morton of the Stevens Institute of Technology, Hoboken, N. J., who organized the photographic observations of the eclipse of 7th of August, 1869, under the Nautical Almanac Office, and otherwise an expert in photography, was produced and deposed to having prepared sections of both varieties of bread of exactly equal thickness, and to having made microscopic or highly enlarged photographs of the same, under the same conditions, and these were filed in court as exhibits. 28 *****
§ 178. Land grant-signature-photograph copy.
A grant of land in California purporting to have been made to one Jose de la Rosa, dated December 4, 1845, and purporting to be signed by Pio Pico, as acting governor, and countersigned by Jose Maria Covarrubias, secretary, was adjudged to be false and forged. The court said: " We have ourselves been able to compare these signatures by means of photographic copies, and fully concur from evidence subjecta fidelibus, that the seal and the signature of Pico on this instrument are forgeries; and we are more confirmed in this opinion by the testimony of Pico himself found in the record. In a brief affidavit, made on the 9th day of June, 1853, he swore, without hesitation, that the document bearing date December 4,1845, was signed by him. But in the deposition in this cause, on 27th day of February, 1857, while this issue was pending, he appears to testify with very great caution. He seems to have drawn out a certain formula of words, on which it is clear that a conviction of perjury could not be sustained, whether his testimony was true or false. The answer is in these words, and three times repeated in the very same words, I cannot now remember, in regard to the original document mentioned in the interrogatory, but the signature, as appears in the traced copy, appears to be my signature, and I believe it was placed there by me at the time the document bears date." 29
Cozzens v. Higgins, 3 Keyes, 206.
Reg. v. Tel. Co., 8 Fost. & F. 73.
Blair v. Pelham, 118 Mass. 420. Citing Marcy v. Barnes, 16 Gray, 161; Hollenbeck v. Rowley, 8 Allen, 478; Cozzens v. Higgins, 1 Abb. Ct. App. Dec. 451; Udderzook v. Com., 76 Pa. St. 340; Ruloff v. People, 45 N. Y. 913; Church v. Milwaukee, 31 Wis. 519; Com. v. Coe, 115 Mass. 481, Walker v. Curtis, 116 id. 98.
Ruloff v. People, 46 N. Y. 213.
Luke v. Calhoun County, 52 Ala. 115.
Reg. v. Tolson, 4 Fost. & F. 103 (1864).
Roscoe Ev. at n. p. 125. Citing Reg. v. Tolson, 4 Fost. & F. 103.
Barnes v. Ingalls, 39 Ala. 193.
Schaible v. L. Ins. Co., 9 Phila. 136, 138.
Camoy Peerage case, 6 Clark v. Fin. 801 (1839).
Cowley v. People, 83 N. Y., 464 (1881).
Udderzook v. Com., 76 Pa. St. 340.
* In Udderzook v. Commonwealth, 76 Pa. St. 340, which was an indictment for murder Agnew, C. J., said: "All the bills of exception, except one, relate to the question of identity the most being those relating to the use of a photograph of Goss. This photograph, taken in Baltimore, on the same plate with a gentleman named Langley, was clearly proved by him, and also by the artist who took it. Many objections were made to the use of the photograph, the chief being to the admission of it to identify Wilson as Goss, the prisoner's counsel regarding this use of it as certainly incompetent. That a portrait or a miniature, painted from life and proved to resemble the person, may be proved to identify him cannot be doubted, though, like all other evidence 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. It is true the photographs we see are not the original likeness, their lines are not traced by the hand of an artist, nor can the artist be called to testify that he faithfully lined the portrait. They are but paper copies taken from the original plate, called the negative, made sensitive by chemicals, and printed by the sunlight through the camera. It is the result of art, guided by certain principles of science. In the case before us, such a photograph of the man Goss was presented to a witness who had never seen him, so far as he knew, but had seen the man known as Wilson. The purpose was to show that Goss and Wilson were one and the same person. It is evident that the competency of the evidence in such a ease depends on the reliability of the photograph as a work of art, and this, in the case before us, in which no proof was made by experts of this reliability, must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation's experience. It has become a customary and common mode of taking and preserving views as well as the likenesses of persons, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retinae through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses."
In Wharton & Stille's Med. Jur., vol. 3, § 670, we find the following: "During the mayoralty of the Hon. John M. Scott, in 1842-43, rough pen and pencil sketches were made of the countenances of the prisoners, the remembrance of whom it was thought desirable to perpetuate. Of these there now remain on file, etc., sketches of twelve individuals; this may be considered as the first approach toward the formation of the Rogues Gallery; these have been found useful in a number of instances. During the administration of Mayor Gilpin from 1875 to 1880 daguerreotypes and ambrotypes of noted men in police annals were made the nucleus of a gallery, though kept in a trunk under lock and key most of the time. They were seldom exhibited to others than officers of the detective department of police. With the present administration the gallery of photographs commenced, and has been carried forward to its present condition, numbering now (April 24, 1860) two hundred and sixty-six portraits. It has been thought desirable in furtherance of police ends, to add, as far as possible, the portraits of men, notorious in other cities, but who occasionally visit us professionally. Exchanges have been made to some little extent with New York, Albany, Pittsburg, etc., and pictures received have been hung up in our gallery. As regards the pictures of men known to the police as rogues of a high grade, very few of these, as yet, are known to exist in any portion or the land. Generally, these men will not, under any consideration, sit for their portraits. When in custody, and are therefore secure, the question is often asked, how do you get the consent of these men and women to sit and have their likenesses taken to be hung up for general exhibition? The answer is, sometimes by threats of thirty days' imprisonment as the alternative of refusal; at others, and in most eases, the parties have been arrested for the commission of some crime, and having years of imprisonment before them, are reckless and regardless of consequences, so far as their pictures are concerned, and yield readily to the demand therefor. The greater portion of the pictures in our gallery are the pictures taken under these circumstances, and, therefore, for any practical purpose are by the writer deemed almost useless—especially so with regard to the younger portion of them. They alter so materially in person, etc, as often to be hardly recognized after years of imprisonment. The one great idea, it was said, in establishing the Rogues Gallery, should be to enlarge the acquaintance of detective officers with individuals with whom they have to do, and thus to give the officers greater facilities in the performance of official duty."
** To the above is a note, from which an extract may be in place. "The interest felt in the case an interest out of all proportion to the importance of the facts, reveals a curious doubt which is always latent in the public mind, and which has, we suspect, as much justification as popular instincts usually have, a doubt whether appearances is conclusive, or even strong evidence of identity The doubt is probably based upon tradition, which deals much in stories of mistaken identity; but we are inclined to believe it much more solid than either policemen or artists would be willing to allow. A large proportion of ordinary persons, it may be even a majority, but certainly a very large proportion, are very untrustworthy witnesses to identify when dependent on appearances alone. They are, either from nature or habit, incapable of appreciating form, and form alone is the unerring proof of personal identity. The difficulties in the way of identification, more especially of the dead, are to them insuperable. In the first place, people are much more similar than we always remember. Without excepting or disputing the extraordinary idea which exists in so many countries, and is the basis of so many fables, that every man has a "double" somewhere, an individual absolutely identical in appearance with himself, it is quite certain the most extraordinary likenesses do exist among persons wholly disconnected in blood; that there are faces and forms in the world which are rather types than individualities, people so like one another that only the most intimate friends and connections can detect the difference. The likeness of Madam Lamotte to Marie Antoinette is a well-known historic instance, and there are few persons who have not, in the course of their own experience, met with something of the same kind. The writer has twice. In one case he was on board a ship in which were two persons, who neither were, nor by possibility could be, connected by birth or any circumstance whatever, except indeed caste; oddly enough they were unaware of a likeness which was the talk of the ship, dressed in the same style, but from inexplicable repulsion—we are stating mere facts—disliked and avoided each other. The writer, in a six weeks' voyage, and with a tolerably intimate acquaintance with one of the two, never succeeded in distinguishing them by sight; and of the remaining passengers, certainly one-half say thirty educated persons, were in the same predicament. In the second instance, the evidence is far less perfect, but sufficient for the argument we are now advocating. The writer stopped short in Bond street utterly puzzled by the apparition of one of his closest connections, not two yards off, clearly it was he, yet he could, from circumstances, by no possibility be there; still it was he and writer advanced to address him, when a momentary smile broke the spell, leaving, however, this impression: "I would have sworn to Blank in any court of justice; his double must be walking about Bond street." And hence the uncertainty of all human testimony on questions of personal identity.
Hollenbeck v. Rowley, 8 Allen 473.
Church v. Milwaukee, 31 Wis., 512.
Cozzens v. Higgins, 3 Keyes 206.
Blair v. Pelham, l18 Mass. 420.
Reg. v. Tel. Co., 3 Fost. & F. 73.
*** In Archer v. R. Co., 108 N. Y. 588 (1887), the action was brought against the defendant to recover damages for an injury to plaintiff while a passenger on the train. A photograph was introduced showing the location where the accident occurred. It was held to be competent evidence. The plaintiff, being on the witness stand, was asked to look at the photograph and see if that described fairly the locality. Objection was made and overruled, and he answered in the affirmative. The court said: "The proposition now submitted by the appellant to show error, 'there was not sufficient proof of the point from or the time at which the photograph was taken to entitle it to be submitted to the jury as a picture of the premises as they existed at the time of the accident,' being general, is unavailing." Citing Cowley's case, 83 N. Y. 464, 476; People v. Buddensieck, 103 N. Y. 487. In Buddensieck's case, supra, he was indicted for manslaughter, for that he erected a building in the city of New York, of insufficient material, and by reason of which culpable negligence, the same fell and killed Louis Walters, etc. A photograph of the premises was used in evidence on the trial, and it was held that the photograph was properly received in evidence for the prosecution, citing Cozzens v. Higgins, 33 How. Pr. 439; Cowley v. People, 83 N. Y. 464; Durst v. Masters, 1 Pro. Div. 373, 378.
In Alberti v. R. R. Co., 118 N. Y. 77 (1889) the action was to recover damages for personal injuries received while a passenger on a sleeping car. On the trial the plaintiff's counsel offered in evidence a photograph of the plaintiff, showing the manner in which his limbs were contracted; this was permitted by the court, under objections of the defendant, before it was done, however one of the doctors testified that the photograph was taken in his presence and that it correctly represented the contraction of the limbs. The only materiality of this evidence was to show the manner in which the limbs were contracted. It was held that the testimony of the physician made it competent evidence as a map or diagram. Citing Archer v. R. R. Co., 106 N. Y. 589; Wilcox v. Wilcox, 46 Hun, 32, 38; Ruloff v. People, 45 N. Y. 213, 224; Hynes v. McDermott, 82 id. 50.
Eborn v. Zimpelman, 47 Tex. 503.
Daly v. Maguire, 6 Blatchf 137.
Stephens, Re, 8 Moak Eng. Rep. 482.
Beavers v. State, 68 Ind. 530, 535.
Matter of Foster's Will, 34 Mich. 21.
Eborn v. Zimpelman, 47 Tex. 503.
Udderzook v. Com., 76 Pa. St. 352.
Re Stephens, 8 Moak's Eng. Rep. 482. See L. R., 9 C. P. 187.
**** In Leathers v. Salvor Wrecking Co., 2 Woods C. C. 680, the libel was filed in the Court of Admiralty, to recover damages for wrecking and dismantling the steamboat Natchez which was sunk in the Yazoo river. BRADLEY, J., said: "If the steamer Natchez was impressed into the service of the Confederate States Government and was burnt and sunk whilst in that service and if full compensation for the vessel's loss was paid to the libelant by that government the property of the wreck thereafter belonged to it; and at the close of the war, became the property of the government of the United States, which thereupon acquired a right to dispose of the wreck as it saw fit. It is evident that the government of the United States acted on the supposition that it was the owner of, and entitled to the control of, the wreck. The authority given to the wreckers, and the contract made with them, are evidence of this. The latter got only one-half of the net proceeds of the property. The balance was retained by the government. Without stopping to inquire whether thus acting under the authority of the government of the United States would or would not be a full defense for the wreckers, and for the respondents in this suit, it is clear, from the evidence, that the libelant's transactions with the Confederate States government bear out the hypothesis that he obtained therefrom the full value of the steamboat, and that whatever was left of her hull and machinery belonged to that government, and, by consequence, became the property of the United States. The libelant, however, testifies, and no doubt sincerely, that the amount received by him from the Confederate government, was received as compensation for the services of the steamboat. But a long period of time has elapsed since the events occurred; and an examination of the documents themselves is conclusive that the said amount was the valuation of the vessel itself, and was so understood by the libelant at the time, and received by him as such. * * * It is objected by counsel for the libelant, that the documentary evidence in question is not properly authenticated. We think it sufficiently authenticated to make it competent. The original papers are on file in the war department. * * * Photographic copies are the best evidence the case admits of. The wonderful art by which they were produced gives us, as we may say, duplicate originals; and in the case of public records or documents properly deposited in the public archives of the country, and which the public interest requires should be there kept and preserved, no better evidence of their character and authenticity can be had than such a reproduction of them by the operation of natural agencies, and the authentication of their genuineness in the usual way, by proof of handwriting."
Whart. Cr, Ev. (8th ed.), § 645, note; from l3 Alb. L. J. 407.
Whart. Cr. Ev. (8th ed.),§ 644, note.
Whart. Cr. Ev. (8th ed.), § 544, note.
***** Mr. Wills in his work on Circumstantial Evidence, at page 118, says: "A case of capital conviction occurred a few years ago, where the prisoner had given his portrait to a youth, which enabled the police, after watching a month in London, to recognize and apprehend him; and photographic likenesses now frequently lead to the identification of offenders. It is well known that shepherds readily identify their sheep, however intermingled with others, and offenders are not unfrequently recognized by their voice, circumstances frequently contribute to identification, by confirming suspicion and limiting the range of inquiry to a class of persons; as where crimes have been committed by left-handed persons; or where, notwithstanding simulated appearances of external violence and infraction, the offenders must have been domestics; as in the case mentioned on a former page, of two persons convicted of murder, one created an alarm from within the house; but upon whom nevertheless suspicion fell, from the circumstance that the dew on the grass surrounding the house had not been disturbed on the morning of the murder, which must have been the case had it been committed by any other than inmates. On the trial of a gentleman's valet for the murder of his master, it appeared that there were marks on the back door of the house, as if it had been broken into, but the force had been applied from within, and the only way by which this door could be approached from the back was over a wall, covered with dust which lay undisturbed; and over some tiling, so old and perished that it would not have borne the weight of a man: so that the appearances of burglarious entry must have been contrived by a domestic, and other facts conclusively fixed the prisoner as the murderer."
Luco v. United States, 23 How. 515. And see the noted Howland Will case, 4 Am. Law Rev. 625.