The General Principles of the Law of Evidence with their Application to the Trial of Civil Actions (Rochester, 1892)
Frank Rice
§ 453. Recent Views.—Photographic copies and photographic magnified copies of the disputed writing, and of such genuine writings as are available by way of comparison may be used as aids to assist the jury in their conclusion. Frank v. Chemical Nat. Bank, 13 Jones & S. 452.§ 453. Recent Views.
§ 464. A Celebrated Case.
§ 455. Necessity of.
§ 456. The Discoveries of Science.
§ 457. Illustrations of the Present Rule.
§ 458. Views of Alabama Supreme Court.
§ 459. What Verification Necessary.
§ 460. Views of the Michigan Supreme Court.
§ 461. Caution in Admitting.
§ 462. Review of the Authorities.
The pertinency of the following language will be readily seen: "The nearest approach to having before the witness at the trial the writings by which comparisons had been made or was to be made, was the bringing of the photographic copies. There was no proof of the details of the process by which they were taken, nor as to the accuracy of the work. We think that a comparison of a signature in dispute with such photographic copies of other writings, for the purpose of allowing an opinion from an expert as to the character of the signature as real or feigned, when the originals, from which the copies are made, are not brought before the jury, and may not be shown to other witnesses, ought not to be permitted. Photographs that have been taken of persons found dead have been admitted in evidence in addition to other and more reliable testimony. Ruloff v. People, 45 N. Y. 213. A photographic picture was more unreservedly admitted as evidence upon the question of identity of person in Udderzook v. Com. 76 Pa. 340. And in another case, when the genuine signature and the disputed signature were both brought into court, magnified photographic copies of each, together with the original, were submitted to the inspection of the jury, and it was held not to have been error. Marcy v. Barnes, 16 Gray, 162. But copies of letters in a letter-book, produced by impress or machine, have been rejected. Com. v. Eastman, 1 Cush. 189. It would be carrying the matter much further, to permit an expert to compare photographic copies of signatures, and therefrom to testify as to the genuineness of a disputed signature. We may recognize that the photographic process is ruled by general laws that are uniform in their operations, and that almost without exception the likeness is brought forth of the object set before the camera. Still, for exact likeness somewhat will depend upon the adjustment of the machinery, upon the atmospheric conditions, and the skill of the manipulator. And in so delicate a matter as the reaching of judicial results by the comparison of writings through the testimony of experts, it ought to be required that the witness should exercise his acumen upon the thing itself which is to be the basis of his judgment; and still more, that the thing itself should be at hand, to be put under the eye of other witnesses for the trial upon it of their skill. The certainty of expert testimony in these cases is not so well assured as that we can afford to let in the hazard of errors or differences in copying, though it be done by however scientific process." Hynes v. McDermott, 82 N. Y. 41.
§ 454. A Celebrated Case.—Without doubt the celebrated Taylor Will Case affords the most drastic criticism upon the worthlessness of photography in evidence of any case yet reported upon this subject. The enormous amount involved in that contest, the eminence of the counsel respectively employed, and the exceptional ability of the Hon. Robt. C. Hutchins, the then incumbent of the surrogate's office of the county of New York, all these circumstances conspired to give unusual interest to the controversy, and led to an examination by the learned surrogate of the principles and reasoning usually invoked whenever it is sought to introduce photographic copies of a signature, or instrument in evidence. From that opinion we excerpt, after first reminding the reader of the salient feature of the controversy, the pivotal question of which was as to the genuineness of James B. Taylor's signature, attached to a document purporting to be his last will and testimony, and which was offered by the proponents for probate.
"The same objections which may be urged against the admission of these photographs in evidence holds good against the value of the opinions and deductions formed from their study. Too many collateral issues are involved to render them reliable testimony. Those who are familiar with the forms of photography are aware of the many circumstances that would have to be made subjects of affirmative proof, and will readily appreciate this statement. The refractive power of the lens, the angle at which the original to be copied was inclined to the sensitive plate, the accuracy of the focusing, and the skill of the operator, and the method of procedure, would have to be investigated to insure the evidence as certain. The court would be obliged to suspend its examination as to the question of the genuineness of the signature, which is before it, and which is the primary evidence, to listen to conflicting testimony of the proponent and contestant, as to who exhibits the most skill and perfectness in their photographic reproductions, and in fact to inquire into the whole science of photography.
"When we reflect that by placing the original to be copied obliquely to the sensitive plate, the portion nearest to the plate may be distorted by being enlarged, and that the portion furthest from the p]ate must be correspondingly decreased, while the slightest bulging of the paper upon which the signature is printed may make a part blurred, and not sharply defined, we can form some idea of the fallacies to which this subject is liable.
"If the characteristics are the same, they should be apparent to the ordinary observation—otherwise they can hardly be called practical characteristics. I cannot, therefore, see why photography should be brought into this case. Its tendency is rather to mislead than to help the witness who takes these photographs as an assistance; for the reason that they start on the major premise, which is a fallacy, that the photograph of the signature, which is alleged to be a forgery, must correspond in its minute details with the signatures admitted to be genuine. Upon this promise they build up the differences and deduce the conclusion that the disputed signature does not correspond with the other signatures; a moment's reflection showing them that no two signatures of the same person are likely to correspond exactly, would convince them of the absurdity of the use of these photographs; as being merely means (provided they are correct) of magnifying the little differences which they could see primarily by examining the signatures themselves." Taylor Will Case, 10 Abb. Pr. N. S. 300.
During 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 the objection 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 condition of the limbs. The only materiality of this evidence was to show the manner in which the limbs of the plaintiff were contracted. In this regard, the testimony of the physician is that it was a correct representation of them. This made it competent as a map diagram. Archer v. New York, N. H. & H. R. Co. 9 Cent. Rep. 233, 106 N. Y. 589-603; Wilcox v. Wilcox, 46 Hun, 32-38; Ruloff v. People, 45 N. Y. 213-224; Hynes v. McDermott, 82 N. Y. 50; Alberti v. New York, L. E. & W. R. Co. 6 L. R. A. 765, 118 N. Y. 77.
§ 455. Necessity of.—Photographs have been admitted in evidence from necessity, as, to present accurate copies of public records which cannot be withdrawn from the files. Re Stephens, L. R. 9 C. P. 187; Leathers v. Salvor Wrecking Co. 2 Woods, 682; Daly v. Maguire, 6 Blatchf. 137; Luco v. United States, 64 U. S. 23 How. 541, 16 L. ed. 550. To identify individuals. Udderzook v. Com. 76 Pa. 340; Luke v. Calhoun County, 52 Ala. 118; Ruloff v. People, 45 N. Y. 224; Washington L. Ins. Co. v. Schaible, 1 W. N. C. 369. To furnish ocular evidence of injuries. Franklin v. State, 69 Ga. 42. To identify and describe premises in dispute. Blair v. Pelham, 118 Mass. 421; Cozzens v. Higgins, 33 How. Pr. 439; Church v. Milwaukee, 31 Wis. 519; Locke v. Sioux City & P. R. Co. 46 Iowa, 112; Hollenbeck v. Rowley, 8 Allen, 475. Upon questions of disputed handwriting, in addition to the writing itself, in which cases enlarged photographs point out and emphasize peculiarities. Marcy v. Barnes, 16 Gray, 163; Re Foster's Will, 34 Mich. 23; Tome v. Parkersburg B. R. Co. 39 Md. 90; Eborn v. Zimpelman, 47 Tex. 519. And see 8 Am. L. Reg. 1-8; 1 Whart. Ev. § 646; Popular Science Monthly, 1875, p.710.
§ 456. The Discoveries of Science.—Until the discovery of photography, nothing in nature was exactly like any other thing, except that thing's image reflected on a polished surface, which disappeared when the thing was removed. Until this discovery there was, therefore, reason, in the rule which required the production of the original paper writing, as the best evidence of its appearance. Science now steps forward and relieve the difficulty by making permanent, and materializing with minute exactness the reflected image. What reason thus remains why a discovery, which destroys the foundation for a rule, should not be used as proposed in the ascertainment of right? Every object seen with the natural eye is only seen because photographed upon the retina. In life the impression is transitory; it is only when death is at hand that it remains perfectly fixed on the retina. Thus we are secure in asserting that no witness ever swore to a thing seen by him without swearing from a photograph. What we call sight is but the impression made on the mind through the retina of the eye, which is nature's camera. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See Recent Experiments stated by Dr. Vogel in the May number, 1877, of Philadelphia Photographic Journal). Without asserting or denying the accuracy of the last statement as a scientific fact, we can express our inability to find, after the most patient research, any adjudication that seems, even by implication, to suggest such a theory. The rare precision and absolute accuracy attained by photographic process has made possible many achievements, and we have long since become quite incapable of astonishment over any developements of either science or art. For the present, however, it must be conceded that the proposition above outlined is without the support of legal authority, although corroborated by a number of reputable scientists who are not without considerable influence in the proper determination of many evidentiary rules of great importance. Rules which, in many instances, have proved subversive of doctrines heretofore regarded as well established, but which have been made to yield to superior principles disclosed by scientific investigation.
In Leathers v. Salvor Wrecking Co. 2 Woods, 682, it was held that photographic copies of public documents on file in the public departments at Washington, which public policy requires should not be removed, are admissible in evidence when their genuineness is authenticated in the usual way by proof of the handwriting.
§ 457. Illustrations of the Present Rule.—In the case of Udderzook v. Com. 76 Pa. 340, it was held that on the trial of an indictment for murder, a photograph of Goss, taken in life, testified to be like a mutilated body found, was evidence to go to the jury that the body was that of Goss. Here, certainly, it was not the best evidence of which the case was capable, because witnesses could have viewed the body and testified from observation of it, and acquaintance with the deceased. But there was corroborative evidence, and the court said: "Happily, the proof of identity in this case is not dependent upon the photograph alone." Thc court say on the general subject: "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 upon the same general laws which produce the images of outward forms upon the retina through the lenses of the eye. The process has become one of general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses." To the same effect are Luke v. Calhoun County, 52 Ala. 118, and Ruloff v. People, 45 N. Y. 213. In both these cases there was other evidence of identity, and in the latter the court said: "The photographs were competent though slight evidence in addition to the other and more reliable testimony."
In Daly v. Maguire, 6 Blatchf. 137, an action for infringement of copyright of a play, a printed programme of a theatrical performance at San Francisco and newspaper clips, had been annexed to a deposition on file. Application was made for leave to take them from the files and annex them to a commission about to be sent in the cause to San Francisco. The application was granted on condition that their place should be supplied, under the direction of the clerks, with fac similes. Here was no question of handwriting, and the witnesses were not required to inspect and swear to the copies, but to the originals.
In Tome v. Parkersburg B. R. Co. 39 Md. 36, 17 Am. Rep. 540, on a question of handwriting, photographic copies of the genuine writing, some of them magnified, were offered with the writing in question, and with the opinion of the photographer. The court said: "The testimony of the photographer comes within the same principle of that of Paine. It was offered to establish the forgery of the certificates in controversy, by comparing them with copies (obtained by photographic processes, either magnified or of the natural size) of certain signatures assumed or admitted to be genuine, and pointing out the difference between the supposed genuine and disputed signatures. As a general rule, in proportion as the media of evidence are multiplied, the chances of error or mistake are increased. Photographers do not always produce exact fac similes of the objects delineated, and however indebted we may be to that beautiful science for much that is useful as well as ornamental, it is at least a mimetic art, which furnishes only secondary impressions of the original, that vary according to the lights and shadows which prevail whilst being taken."
Exactly the reverse of this was held in Marcy v. Barnes, 16 Gray, 161. The court said of the magnified copies produced: "Under proper precautions in relation to the preliminary proof; as to the exactness and accuracy of the copies produced by the art of the photographer, we are unable to perceive any valid objection to the use of such prepared representation of original and genuine signatures as evidence competent to be considered and weighed by the jury."
In Church v. Milwaukee, 31 Wis. 512, the action was to recover damages for an injury to plaintiff's premises by reason of the change of grade of a street, and the court held that a photograph of the premises proved to be correct was properly admitted, it being impracticable for the jury to view the premises.
In Betts v. Jackson, 6 Wend. 181, it is said by Chancellor Walworth: "Legal presumptions are founded upon the experiences and observations of distinguished jurists as to what is usually found to be the fact resulting from any given circumstances, and the result being thus ascertained, whenever such circumstances occur, they are prima facie evidence of the fact presumed."
The photograph of a gulley or gorge washed out about half way between a dam, and which had been broken and another dam which was three miler below injured in consequence, is inadmissible on the question of damages to the latter dam, where there is no proof of the condition of the gorge before the break of the dam, or of the differences in level between the places, or of the nature of the service, except what the photograph shows. Verran v. Baird, 150 Mass. 141.
A photograph of a person, showing the manner in which his limbs have been contracted, is admissible in an action for personal injuries where a physician has testified that the photograph was taken in his presence and accurately represented the condition of the limbs. Alberti v. New York, L. E. & W. R. Co. 6 L. R. A. 765, 118 N. Y. 77.
In an action against a city for injuries to property, caused by the alleged defective construction and improper location of the bridge, it is not error to admit in evidence a sketch or painting showing the location of the bridge and its surroundings, where the maker of such painting has been shown by his own evidence to be an artist and a draftsman, although he has never seen the bridge, as the jury might go in person to inspect the locality. Harford County Comrs. v. Wise, 71 Md. 43.
In an action for injuries sustained at a railroad crossing, photo graphic sketches representing the surroundings are admissible; and a change in the appearance of the locality, made by the falling of the leaves from the trees, is open to explanation. Dyson v. New York & N. E. R. Co. 57 Conn. 9.
A photograph of the locality of an accident is admissible in evidence. Archer v. New York, N. H. & H. R. Co. 9 Cent. Rep. 233, 106 N. Y. 589.
The language of Chief Justice Folger is pertinent in this connection: "Photographic pictures do not differ in kind of proof from the pictures of a painter. They are the product of natural laws and a scientific process. It is true that in the hands of a bungler who is not apt in the use of the process, the result may not be satisfactory. Somewhat depends for exact likeness upon the nice adjustment of machinery, upon atmospheric conditions, upon the position of the subject, the intensity of the light, the length of the sitting. It is the skill of the operator that takes care of these, as it is the skill of the artist that makes correct drawing of features, and nice mingling of tints, for the portrait. Most of evidence is but the signs of things. Spoken words and written words are symbols. Once a deaf mute, born so, was presumed in law an idiot (1 Hale, 34); but later days look upon him as not incompetent to be a witness, if he in fact have understanding and knows the nature of an oath. Ruston's Case, 1 Leach, C. C. 408. He is now taught to give ideas to his fellow men by signs, and his deprivation of some of the common faculties of humanity does not exclude him from the witness box. The signs he makes must be translated by an interpreter skilled and sworn. So the signs of the portrait and the photograph, if authenticated by other testimony, may give truthful representations. When shown by such testimony to be correct resemblances of a person, we see not why they may not be shown to the triers of the facts, not as conclusive, but as aide in determining the matter in issue, still being open, like other proofs of identity, or similar matter, to rebuttal or doubt. A witness who speaks to personal appearance or identity, tells in more or less detail the minutia thereof as taken by his eye. What he says is a description thereof, by one mode of signs, by words orally uttered. If his testimony be written instead of spoken, and is offered as a deposition, it is a description in another mode of signs, by words written; and the value of that mode, the deposition, depends upon the accuracy with which his words spoken are put into words written. Now if he has before him a portrait or photograph of the person; and it shows to him a correct copy of that person, if it produce to his view a correct description, which he testifies is a likeness, why may not that be given to the jury as a description of the person by the witness in another mode of signs? The portrait and the photograph may err, and so may the witness. That is an infirmity to which all human testimony is lamentably liable. But when care is taken to first verify that the process by which the photograph was taken was conducted with skill and under favorable circumstances, and that the result has been a fair resemblance of the object, the picture produced may in many of the issues for a jury, be an aid to determination. Nor are the cases adverse to these views." Cowley v. People, 83 N. Y. 464; Hynes v. McDermott, 82 N. Y. 41. See also, extended note to Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315.
An admirable summary of the entire subject is given by Judge Danforth, in a very recent case decided in the New York Court of Appeals. "The next exception brought to our attention is the use in evidence of a photograph of the premises. It was taken during the trial, but it appears that the part represented was in the same condition as when first seen by the witness on the twenty-fifth day of April, or soon after the structure fell. No objection was made that the person taking the picture was not competent or skilled in his art, nor that the then condition of the ruins was unimportant as throwing light upon the manner of the construction of the building. It exhibited the surface conditions and state of the walls, and, no doubt, carried to the minds of the jurors a better image of the subject matter, concerning which negligence was charged, than any oral description by eye-witnesses could have done. Its accuracy, as a faithful representation of the actual scene, was proved, and in such a case it must be deemed established that photographic scenes are admissible in evidence as appropriate aids to a jury in applying the evidence, whether it relates to persons, things or places." People v. Buddensiek, 4 Cent. Rep. 787, 103 N. Y. 509.
§ 458. Views of Alabama Supreme Court.—A very recent case decided by the Supreme Court of Alabama, gives the best exposition of the rule to be found among any of the authorities early or late. As assisting the jury in contemplating the case, a photographic view of the trestle work and wreckage taken shortly after the accident, was offered in evidence. The usual objection was interposed, "incompetent, irrelevant and immaterial." This objection was overruled, and in the course of an exceptionally vigorous opinion, Summerville, J., says: "It (the photograph in question) was clearly admissible in evidence, to aid the jury in properly understanding the case. It is a well understood rule, applied in every day practice in the courts, that diagrams and maps illustrating the scene of a transaction, and the relative location of objects, if proved to be correct, are admissible in evidence in order to enable the jury to understand and apply the proved facts to the particular case." 3 Brick, Dig. p. 431, § 366. A plan, picture or other representation produced by the art of photography, is admissible on like principles, if verified as a true and accurate representation. It is, in fact, but a scientific reproduction of a fac simile of the original object in nature, by a mechanical art which is every day advancing towards perfection. The competency of such evidence was settled in Luke v. Calhoun County, 52 Ala. 115, approving a like ruling in the case of Udderzook v. Com. 76 Pa. 340; where a photograph of a person in life, shown to be a correct picture, was admitted in evidence for the purpose of aiding in the identification of a deceased person alleged to have been murdered. The case of Ruloff v. People, 45 N. Y. 213, supports the same principle. In the case of Blair v. Pelham, 118 Mass. 420, which was an action against a town to recover damages for injuries caused by a defect in a highway, the defendant was permitted to put in evidence a photograph of the place of the accident, on its verification by the photographer as a true representation. So in Church v. Milwaukee, 31 Wis. 512, an action for damages resulting to a lot owner from a change in the grade of a street, a photograph of the premises shown to be correct, was admitted "to aid the jury in arriving at a clear and accurate idea of the situation of the premises, and enable them to better understand how they were affected in the grade." And Cozzens v. Higgins, 33 How. Pr. 436, decided by the New York Court of Appeals, is to the same effect. In an action of trespass against an adjoining proprietor, for the wrongful acts of opening holes in the walls of the plaintiff's cellar, so as to render it untenable by projecting into it heavy beams, a "photographic view" of the cellar was admitted in evidence as an "appropriate aid to the Jury in applying the evidence." The case of Dyson v. New York, N. E. R. Co. 57 Conn. 10, is another authority directly in point, where, in an action against a railroad company a photographic view of the locus in quo of the accident was held to be admissible in evidence. The same ruling precisely was made in the case of Archer v. New York, N. H. & H. R. Co. 9 Cent. Rep. 233, 106 N. Y. 589. There is no doubt as to the soundness of these rulings, and they fully support the action of the courts in admitting in evidence the photograph of a wrecked train and the surrounding locality. 1 Whart. Ev. (3d ea.) § 676; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 319, 321, note; Marcy v. Barnes, 16 Gray, 161; Locke v. S. C. & P. R. Co. 46 Iowa, 109.
§ 459. What Verification Necessary.—The authorities hold that some verification is necessary before photographs should be given their due weight in evidence, and the usual practice seems to be and certainly reason would suggest, that the photographer be sworn as to the true representation his camera is supposed to have delineated. With this observance, there is no doubt as to the competency of this class of evidence. Blair v. Pelham, 118 Mass. 420; Ruloff v. People, 45 N. Y. 215; Com. v. Coe, 115 Mass. 481.
§ 460. Views of Michigan Supreme Court.—The Supreme Court of Michigan, in probate proceedings brought up from the county court for review, had occasion to discuss this question of photography, and the opinion as expressed by Mr. Justice Campbell, while failing to deal with the subject as exhaustively as did the learned surrogate in the Taylor Will Case, very pertinently suggests some phases of evidentiary rules, it would be well to note and follow, as the following extract will show:
"Nevertheless it is not always true that every photographic copy would be safe on any inquiry requiring acute accuracy. Few copies can be so satisfactory as a good photograph. But all artists are not competent to make such pictures on a large scale, and all photographs are not absolutely faithful resemblances. It is quite possible to tamper with them, and an impression which is at all blurred would be very apt to mislead on questions of handwriting, where forgery is claimed. Whether it would or would not be permissible to allow such documents to be used, their use can never be compulsory. The original, and not the copy, is what the jury must act upon, and no device can properly be allowed to supersede it. Copies of any kind are mere secondary evidence, and, in this case, they were intended to be used as equivalent to primary evidence in determining the genuineness of the primary document." Re Foster's Wi11, 34 Mich. 21.
§ 461. Caution in Admitting.—The court should exercise great caution in admitting this grade of evidence. Scientific investigation in many of its processes, is accurate and reliable, and scientific appliances are admirably calculated, under proper manipulation, to produce desired and accurate results; but, in this peculiar process of photography, much depends upon the manipulator; something upon atmospheric conditions; still more, perhaps, upon the adjustment of the instrument, and the preparation of certain chemical compounds. These matters are carefully noted in an admirable article on the subject, in 34 Alb. L. J. 676.
§ 462. Review of Authorities.—The New York practice in criminal proceedings, as will be shown in a subsequent volume of this work, allows the jury to visit and view the premises, and this is usually a discretionary matter with the court (N. Y. Code, Crim. Proc. § 411), and in such cases, evidence designed to show that strangers and third parties conversed with the jurors while viewing the premises, is competent as ground for a reversal. People v. Green, 53 Cal. 61.
In strict analogy with the decisions referred to, are the following recent authorities:
A photographic copy of field notes of a survey is admissible on the question, whether a line of the survey was actually measured. Ayers v. Harris, 77 Tex. 108.
Photographs of places have been introduced as evidence to prove that a grotto mentioned by the witness as the place where the act was committed was not such a spot as the parties would have chosen to commit the act (2 Tichb. Tr. 640); to show to the jury the location and surroundings of premises injured by a change of grade in street, to aid them in determining such change (Church v. Milwaukee, 31 Wis. 512); and where damages are sought to be recovered for injuries caused by neglect to repair the highway, a photograph of the place showing its condition at the time is competent evidence. Cozzens v. Higgins, 1 Abb. App. Dec. 451. To be admissible the photographs must first be shown to be true representations of the places. Blair v. Pelham, 118 Mass. 420; Church v. Milwaukee, 31 Wis. 512. The weight of authority is in favor of the admissibility of photographic copies of signatures, when the genuineness of a signature is in question, if the copies are accompanied by competent preliminary proof that they are accurate in all respects except as to size and coloring. They may be used by an expert to aid him as a basis of opinion as to the genuineness of the original signature. The doctrine that such an opinion is only entitled to little weight and is at best only secondary evidence is not supported by the cases. Marcy v. Barnes, 16 Gray, 161; Ruloff v. People, 45 N. Y. 213; Tyler. v. Todd, 36 Conn. 218; Com. v. Coe, 115 Mass. 481; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 31S. Contra, Taylor Will Case, 10 Abb. Pr. N. S. 300.
It seems to be well established that photographs are not admissible in evidence when the original can be produced in court, photographs at best being secondary evidence. Rogers, Expert Testimony, § 144; Re Foster's Will, 34 Mich. 23; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Niller v. Johnson, 27 Md. 6; Tome v. Parkersburg B. R. Co. 39 Md. 36, 17 Am. Rep. 540.
Mere opinion as to resemblance between a child and its putative father is not admissible in evidence, but the fact of resemblance is held to be some evidence tending to prove paternity; and so, when the child and the alleged father have both been present, it has been held permissible to place them side by side before the jury for the purpose of letting them draw their own deductions as to the fact of resemblance. Gilmanton v. Ham, 35 N. H. 108.
Pictures of the putative father and of the illegitimate child, taken by photography, are not inadmissible in evidence for the purpose of showing resemblance between the two, but are entitled to but little weight, since great dissimilarity between kindred, and strong resemblance between strangers, are matter of every-day observation. We are not prepared to say that pictures taken by the improved processes of photography may not be admissible for such a purpose; but they would be entitled to much less weight as evidence than profert of the persons themselves; and even the latter would not go far towards establishing relationship, since a marked similarity between strangers, and great dissimilarity between kindred, are matters of almost daily observation. See 1 Wharton, Ev. § 346. Fox, J., in Re Jessup's Estate, 6 L. R. A. 594.