of it on the cross-examination of proponents' witnesses, but because of the grouping and the character of the grouping, and to the use of it by Mr. Osborn, who made it, because of the undue prominence thus given to his testimony, and the tendency "to minimize other testimony and other writings in the case," and because of undue surprise.

The first page of the book consists of three sheets about the size of a sheet of letter paper, and they are placed edge to edge on the side, and fastened at the sides, so as to display all three sheets equally well at the same time. The center sheet is a photograph of the will, the sheet on the right is the photograph of certain writings admittedly in the handwriting of Charles M. Adams, and the sheet on the left is a photograph of a ledger account of Lewis M. Adams in his handwriting, containing several of his genuine signatures. These are in pencil. On the same page there is a writing in pen and ink in the handwriting of Lewis M. Adams. All three pages are photographed in natural size. As indicated, the picture on the right is the genuine handwriting of Charles M., that on the left the genuine handwriting of Lewis. M., and that in the middle is of the disputed will. Other pictures are made for a different purpose. For example, to show the peculiar formation of the letter "r," or of the letter "g," or the capital "M." Again, the object was to show the infirmative line, or the "hesitation," as peculiar to the handwriting of only one of the parties, or the tendency to print or separate the letters of a word, as done by one and not by the other. The angularity of the writings or particular letters, especially of capitals beginning sentences, was a matter of importance to be shown if there was a difference in this respect between the writings of the parties. These were differences mentioned by the witness Osborn, and which he 31 A.L.R.-90.

sought to point out and emphasize by the use of photographs.

It seems to be conceded that the jurors, with the originals before them, could have made these groupings and comparisons for themselves, and if need be might have used a microscope for that purpose; but this could only be done by one juror at a time, and by looking at one paper and then at another and by carrying the mental impression from one to the other. This was well-nigh impossible. To compare several writings with each other to determine the identity or dissimilarity of their author, they must be placed side by side so that all can be seen at once. This can be best done by a photograph in which the eye can take in the whole group at one time.

In the instant case, there were a number of these photographs used, so that the jurors could have the picture before them while the expert pointed out the peculiarities and explained the reasons for the opinions which he expressed. This had a marked advantage, in a search for the truth, over a frequent reference to different papers and a comparison of them with the disputed will. These photographs were shown to be correct representations of the originals, and the object of their introduction was not to substitute them for the originals, but to bring the originals into juxtaposition so that they might be seen, inspected, and compared at the same time with a single mental effort, which was impossible with the originals. One of the originals was a merchant's book of accounts containing many pages, some written by Lewis M., some by Charles M., and others containing the writing of both. The other writings were numerous. Moreover, the issue involved not merely a comparison of signatures, but of the general handwriting, of the formation of certain letters, of their angularity, and other questions that could be best visualized by placing them in juxtaposition and photographing

them, thus giving an instantaneous perception of the peculiarities of the writings so grouped. If this grouping, and the testimony of the expert in connection therewith, whereby he pointed out the peculiarities of the different writings as a reason for his opinion, had the effect of giving prominence to his testimony and tended to "minimize other testimony and other writings in the case," it was no fault of the photographs. The photographs were an aid to the jury in ascertaining the truth, and were properly received in evidence.

Evidence-photographs of grouped writings.

There was some criticism of the use of a part of a sentence or a single word in some of the photographs. Where the object is to compare the formation of a single letter, it is immaterial whether a single word is used or a whole sentence in which the letter appears.

It is said in the argument for the proponents that Mr. Osborn made an unfair selection of a word in which the letter "g" appears in a peculiar form, and that "it is very unfair and misleading to select and photograph one 'word' where a letter 'g' of Lewis is not exactly like the one in the will, and let the jury take it as evidence, when there are many, very many, 'g's' of Lewis like in the will, in the store book in evidence."

If this statement is correct, the proponents had but to show the fact, and it would not only have disproved the testimony of the witness on the subject, but have tended strongly to discredit him as a witness.

There has been a great difference of opinion among the courts as to the weight and value of expert testimony. This difference is well expressed in 11 R. C. L. 587, with a full citation of authority. It is there said: "In some cases the courts have severely criticized expert evidence in general as biased, mercenary, and almost worthless, such evidence as to handwriting having been considered

par

ticularly untrustworthy. In other cases instructions that such evidence should be received with great caution have been approved. In still other cases expert testimony is commended and held not properly subject to deprecating remarks in the court's instructions, or else is declared to be entitled to the the jury's unbiased consideration, free from the court's prejudicial remarks either in its favor or against it. The discredit so often attached to expert testimony is traceable particularly to the fact that it consists of conclusions and opinions which are often uncertain at best, and in which one may be swayed one way or the other by bias or interest, without conscious dishonesty, and that by one existing practice the experts are selected and paid by one of the parties and their use as witnesses necessarily depends on their forming an opinion favorable to that side."

We have no decision in this state on the admissibility of evidence of the character hereinbefore referred to, exhibit A. S. O. No. 1,-nor have we found sufficient authority elsewhere to be able to speak of the weight of authority; but for the reasons given we are of opinion that the trial court committed no error in admitting exhibit A. S. O. No. 1 for the purpose for which it was used, and that such use was legitimate and proper.

In 2 Wigmore, Ev. 2d ed. 797, p. 106, it is said: "When the original is produced, but it is desired also conveniently to collate specimens by photographic groupings (as by placing many specimens in juxtaposition on a single sheet) the original is not literally unavailable (§ 1192), in the sense of being tangibly beyond procurement. Nevertheless, there are still lacking and unproduced to instantaneous perception, the minute resemblances and differences which appear upon close juxtaposition and fade from memory in the operation of passing from one document to the others. Hence, the photographic juxtaposition does, in strict sense,

produce these otherwise unavailable minutiæ, and such a grouping is therefore allowable without even any deviation from technical principle."

In Luco v. United States, 23 How. 515, 16 L. ed. 545, the facts are not fully stated in the opinion, but in the argument of counsel it is said:

"To facilitate the examination by the court of this part of the case, photographic copies of the documents were prepared and put in evidence below. They are now exhibited to the court, with perfect confidence that they will entirely dispose of the case. By the employment of the beautiful art of photography, this tribunal can examine the assailed title, and contrast it with papers of undoubted genuineness, with the same certainty as if all the originals were present, and with even more convenience and satisfaction.

"As to the signatures:

"From among the archives were selected all the signatures of Pio Pico which occur on the expedientes during the month in which it is claimed this grant was made. These were photographed upon one sheet in the order of their dates, and are now exhibited to the court. Their corresponding archive numbers are placed opposite to each, and it will be observed, as before stated, that there is no blank number, showing that all the expedientes of this date, which were ever numbered, are still in the archives. Upon the same sheet is photographed the signature to the grant in question. It has no corresponding expediente in the archives, and there is no number left for one. The court can now not only read the parol testimony understandingly, but can for itself contrast the genuine with the simulated signature.

"(Counsel then pointed out the differences in the nature of the handwritings, the signatures and rubrics of Governor Pico, and contended it was physically impossible that one and the same person could

have made the genuine and disputed signatures.)"

On this subject the court said, in its opinion: "We have ourselves been able to compare these signatures by means of photographic copies, and fully concur (from evidence 'oculis subjecta fidelibus') that the seal and the signatures of Pico on this instrument are forgeries; and we are the more confirmed in this opinion by the testimony of Pico himself, found on the record."

In State v. Skillman, 76 N. J. L. 464, 70 Atl. 83, the court admitted photographic copies of the disputed will and signatures thereto, and also of other signatures of the size of the original; but the report of the case does not show that the writings were placed in juxtaposition and photographed on a single plate. The opinion refers to and disapproves Howard v. Illinois Trust & Sav. Bank, 189 Ill. 568, 59 N. E. 1106, and, referring to that case, proceeds: “.. But we cannot give adherence to the view that photographic copies of a disputed document are inadmissible, because the original has been admitted. If such copies were offered as substantive proof of the original document they would be clearly inadmissible. But where the sole purpose is to use the photographs to illustrate and elucidate a contention which forms the gravamen of the case, such procedure seems to be as reasonable as the use of a magnifying glass would be for the same purpose.

In State v. Ready, 77 N. J. L. 329, 72 Atl. 445, an expert was permitted to use a photograph of a signature of a testator in which the first part of "John W.," in natural size, was taken from one genuine signature, and the other part, "Russell," enlarged two diameters, was taken from another genuine signature, for the purpose of illustrating the difference between the genuine and the spurious signature. The court said: "The first part of the name could have been introduced in one and the second part in another photograph; but that these parts

were brought together in a single photograph did not destroy the verisimilitude of the picture, so long as it was understood to be what it was, a representation of the parts of two distinct genuine signatures."

Leland v. Leonard (1921) 95 Vt. 36, 112 Atl. 198, discusses the use of photographs of writings, but not the question involved in the instant case. It is there said, however, that "all that is required to make them admissible is that it shall be made to appear that they are sufficiently accurate to be of aid to the trier in ascertaining the truth," and that "the whole question of the admissibility of photographs is one lying largely in the discretion of the trial court, and its rulings thereon are not ordinarily reviewable."

Counsel for the contestants also refer to Wenchell v. Stevens, 30 Pa. Super. Ct. 527; Howard v. Russell, 75 Tex. 174, 12 S. W. 525, and Storey v. First Nat. Bank, 24 Ky. L. Rep. 1799, 72 S. W. 319; but our examination of them does not disclose anything very helpful to the present discussion.

Counsel for proponents rely upon Crane v. Dexter Horton & Co. 5 Wash. 479, 32 Pac. 223, and quote therefrom as follows: "The appellant had caused photographs of the disputed signature and of certain genuine signatures to be made on paper, so that all the signatures were close together. These the court rejected as immaterial and irrelevant. Photography has come to be a well-recognized aid to judicial investigation; but there would seem to be no call for its use in such a case as the present one. The disputed signature was present, as were also some 500 concededly genuine ones, so that some regard for convenience of comparison could be the only object to be gained. Where, as in Luco v. United States, supra, the genuine signatures to be compared are so situated that they cannot be brought into court, or cannot be taken to an appellate court, the photograph becomes an almost per

fect substitute for the original, and if taken with proper care is always received."

In that case only a signature was in dispute. In the instant case the whole will is alleged to be a forgery, and the merchant's book of accounts could not be as conveniently used for comparison as a photograph of specified pages. But even if the signature alone were involved, we would not feel disposed to follow that case.

In Hynes v. McDermott, 82 N. Y. 51, 37 Am. Rep. 538, the court felt doubtful of the certainty of expert testimony, and hence was unwilling to run the "hazard of errors or difference in copying." In the Taylor Will Case, 10 Abb. Pr. N. S. 318, the doubt about the correctness of the photograph seems to have been an important consideration; but it was also said that where the original was produced there was no necessity for using the reproduction. Neither of these cases is of special value on the question under consideration.

In Howard v. Illinois Trust & Sav. Bank, 189 Ill. 568, 59, N. E. 1106, it does not clearly appear for what purpose the photographs were offered in evidence, but apparently no such question was involved as in the instant case. It was there said: "The original deed was in evidence, together with the testimony of these experts; and the defendants also offered in evidence photographs, both of the same size as the deed and those in which it was enlarged. The photographs were objected to, and the objections were overruled. The photographs, of the same size as the deed, if they were truthful and accurate, were merely secondary evidence of its contents and appearance. Ordinarily, merely secondary evidence cannot be produced without proof of the loss of the original. As the original was in evidence, the general rule would be that its contents or appearance could not be proved by any kind of copy," and the court refused "to extend the rule against the introduction of merely secondary evidence."

This entirely loses sight of the purpose for which the photograph is offered. It is not for the purpose of substituting secondary for primary evidence, but to bring together in one picture the different items of primary evidence so as to enable the court and the jury to see at one time several writings placed side by side, without having to look from one paper to another to see the likeness or dissimilitude, and to enable them to comprehend the illustrations and explanations given by the expert who testifies concerning them. The same view as to the use of secondary evidence seems to have been applied in Maclean v. Scripps, 52 Mich. 214, 17 N. W. 815, 18 N. W. 209.

At the request of the contestants, and over the objection of the proponents, the court gave the following instruction: "The court instructs the jury that statements of Lewis M. Adams as to how he intended to dispose of his property at his death go only to the question of the probability or improbability of his making the disposition of his property set forth in the alleged will, and does not affect the question of whether said alleged will is in the genuine handwriting of Lewis M. Adams or not."

It is said by counsel for contestants that "this instruction was intended to tell the jury that if they believed that the alleged will was not in the genuine handwriting of Lewis M. Adams, any statements made by him before his death, as to how he intended to dispose of his property, would not be sufficient to justify a verdict in favor of the proponents of the alleged will."

But the instruction does not express that intention. It says that the statements of the testator as to the intended disposition of his property do not affect the question of whether or not the will was in the handwriting of Lewis M. Adams, when in fact it might have a very serious effect. If the jury thought that the evidence as to the execution of the will left the question in

doubt, they would probably give very serious consideration to the statements of the testator as to his intended disposition of his property.

In Samuel v. Hunter, 122 Va. 636, 95 S. E. 399, it is said that "such declarations, standing alone, are not admissible as direct evidence to prove or disprove the genuineness of the will; but that in all cases where its genuineness has been assailed by other proper evidence, the declarations are admissible as circumstances either to strengthen or weaken the assault, according to their inconsistency or their harmony with the existence or terms of the will," -thus showing not only the admissibility of such testimony, but its influence.

The refusal of the trial court to give the following instruction, tendered by the proponents, is assigned as error: "The jury are instructed that exhibit A. S. O. 1, introduced by the contestants, is to be considered by them with great circumspection. It gives the viewpoint of the witness Osborn, and it is the duty of the jury to form their verdict from all the evidence in the case; and the exhibit above mentioned is only to be considered as evidence illustrating the viewpoint of the witness, and it is the duty of the jury to look to the original writings, and, from them and the other evidence in the case, to find their verdict." The instructions-duty struction correctly with respect to states the law, and

-refused in

exhibit.

the refusal to give it was error.

Contestants seek to uphold its refusal on the ground that it separated and unfavorably emphasized evidence which the court had previously ruled to be proper and admissible, and was an expression by the court of its opinion on the weight to be given to this particular evidence.

In this view we cannot concur. It