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was a statement of the law appli- dict. When the book of photocable to the facts of the case which graphs was offered in evidence, it the proponents had a right to have was with the express announcement given. It not infrequently happens that it was "for the purpose of that a court is called on to state how demonstrating the reasons for the certain classes of evidence are to be opinion which Mr. Osborn had exviewed; for example, the testimony pressed," and the instruction tenof an accomplice, or of a subscrib- dered carried out that idea. ing witness to a will who testifies Our remarks on this subject are against the will. The original pa- not to be taken as any reflection on pers were all before the jury, and Mr. Osborn, who stands at the head the book of photographs was of- of his profession, and whom we fered, not as original evidence, nor should regard as incapable of any as a substitute for original evidence intentional unfairness, but rather that could not be produced, but to as laying down a general rule for enable the witness to point out more the guidance of trial courts in cases clearly the characteristics of the in which the question may arise. writing under examination, and the We have pointed out several er"easons for the conclusions reached rors committed during the trial. by him. Mr. Osborn made a very There remains to be considered their clear and succinct statement of his effect on the disposition to be made views and his conclusions, but no of the case in this court. The nonstatement he could have made would expert witness Jones displayed so have made the impression created little acquaintance with the handby the pictorial presentation of his writing of the testator that his ancriticisms and conclusions.

swers to the unfair questions proOpinion evidence as to handwrit- pounded to him could have but little ing is valuable when direct evidence effect upon the minds of the jurors. of a reliable and satisfactory char- Neither the questions asked him, acter as to the factum cannot be ob- nor the opinion expressed by the

tained, but it is sub- nonexpert witness Barrett, nor the Evidence-experts-weight.

ject to many abuses instruction given at the instance of

and is of a danger- the contestants, are of such substanous nature, especially when given by tial nature as should result in a reexperts in the employment of, and versal. The only other error pointpaid by, parties offering it. When ed out was the refusal of the trial there are numerous genuine papers court to give the instruction tenfrom which the expert is to form his dered by the proponents of the will. standard for comparison with the No other instruction given presentdisputed document, he has great lat- ed this feature of the case, and, itude for selection, and, in selecting

erally, in such case the result is a samples for use in court, he has the

reversal and an order for a new trial. opportunity of selecting those which

But this court is satisfied from the best subserve his purpose, and omit

record that the alleged forgery has ting those which militate against been established, and that if a new his conclusions. While frequently

While frequently trial is awarded it of great value, such testimony is will result in anoth- Appenl-refusal

of new trial. subject to this inherent weakness, er verdict similar to and it was error for the trial court the last, unless some new and subto have refused the instruction to stantially different testimony is ofthe jury that the book of photo- fered by the proponents. There graphs was only to be considered as have already been two trials of the evidence illustrating the viewpoint case, the first resulting in a hung of the witness Osborn, and that it jury. It is difficult, if not impossiwas their duty to look to the original ble, to obtain a perfect trial, and we writings and from them and other are to consider whether or not the evidence in the case to find their ver- verdict may have been brought

gen(- Va, —, 122 S. E. 126.) about by a refusal to give this in- of the photographs as set forth in struction. The question involved is the instruction rejected. He doubtnot the effect of an erroneous in- less argued before the jury, as he struction, but of apparently leaving did before this court, the character the question at large with no in- of the offer made by counsel when struction on the subject. Ordina- the photographs were tendered, the rily, such refusal would amount to a use to be made of them, and the cirsilent denial of the legal proposition cumspection with which the testiinvolved, and would forbid argument mony of handwriting experts should in support of that view, and this, in be received. Certainly, he was not most cases, would necessitate rever- cut off from such argument by the sal. But the instant case is peculiar refusal to give the instruction. Unin that respect. When the book of der such circumstances, the refusal photographs was offered in evi- to give the instruction was not such dence, the counsel for the contest- error as would require a reversal. ants who offered it stated: “I offer New trials ought not to be granted these photographs in evidence for when there is no reasonable probthe purpose of demonstrating the ability of reaching a different result. reason for the opinion which Mr. Os- Upon the whole case, we are of born has expressed."

opinion to affirm the judgment of In the face of such announcement, the trial court. counsel for the proponents was not Kelly, J., absent. forbidden to explain fully and argue Petition for rehearing denied before the jury the use to be made April 9, 1924.

ANNOTATION.

Use of photographs in examination and comparison of handwriting or type

writing.

I. Introduction, 1431.

are now admitted, and the most enII. In general, 1432.

lightened and progressive courts will III. Inaccessible writings, 1436.

hardly listen to objections to them." IV. Enlargements, 1437.

However, there are numerous deciV. Grouped writings, 1439.

sions wherein the use of photographs 1. Introduction.

for purposes of comparison has been There is a decided conflict of author

denied. In some instances, this has ity as to the admissibility in evidence been due to the particular facts under of photographs for use in examination

consideration, so that the decisions and comparison of handwriting and do not necessarily conflict with the typewriting in disputed documents, general rule of admissibility. . but the tendency of the courts appar

In other instances, the result is ently is toward admission. In fact,

traceable to the old common-law rule Osborn, in his widely used treatise on

under which, as formulated in 10 R. C. “Questioned Documents," at page 324,

L. 995, a writing could not be used as in discussing the use of photographs

a standard of comparison unless it for the purpose of comparison of writ

was already in evidence for other purings, says: “Photographs are now

poses or among the files of the case, rarely excluded, although always ob- or else was admitted to be genuine, so jected to, and in some jurisdictions it that there was no danger of a collatis now almost, if not quite, reversible eral issue concerning the specimen oferror to exclude them. The tendency

fered. of all courts of all states is toward

And, of course, preliminary proof that procedure which assists in show

of the exactness and accuracy of the ing the facts. In at least ninety-nine photographic copy is necessary in any cases out of a hundred, photographs case, in order to permit of its use for purposes of comparison, and, in the New Jersey. State v. Skillman absence of such proof, it is rarely, (1908) 76 N. J. L. 464, 70 Atl. 83, afif ever, admitted. Likewise, the gen- firmed without opinion by equally diuineness of the photographed stand- vided court in (1909) 77 N. J. L. 804, ard must be clearly established. 76 Atl. 1073; State v. Ready (1909) 77

N. J. L. 329, 72 Atl. 445, reversed on II. In general.

other grounds in (1909) 78 N. J. L. Apparently it is now quite general- 599, 28 L.R.A.(N.S.) 240, 75 Atl. 564. ly conceded that photographic copies And see Re Gordon (1892) 50 N. J. Eq. of writings, if properly authenticated, 397, 26 Atl. 268, affirmed in (1894) 52 are admissible, at least under some N. J. Eq. 317, 30 Atl. 19, and Goldscircumstances, for use in examining boro v. Central R. Co. (1897) 60 N. J. and comparing writings. The exist- L. 49, 37 Atl. 433, 2 Am. Neg. Rep. 408. ence of such a rule of admission is New York.—Frank v. Chemical Nat. recognized (sometimes with qualifica- Bank (1874) 5 Jones & S. 26. Contra, tions) in the following cases:

Taylor Will Case (1871) 10 Abb. Pr. United States.

Luco v.

United N. S. 300. States (1860) 23 How. 515, 16 L. ed. Pennsylvania.-Moncur v. Western 545; United States v. Ortiz (1900) 176 Life Indemnity Co. (1921) 269 Pa. 213, U. S. 422, 44 L. ed. 529, 20 Sup. Ct. 112 Atl. 476; Vanderslice v. Snyder Rep. 466; Green v. Terwilliger (1892) (1895) 4 Pa. Dist. R. 424. 56 Fed. 384, affirmed in (1894) 9 C. C. South Dakota. See Re McClellan A. 565, 15 U. S. App. 488, 61 Fed. 423. (1906) 20 S. D. 498, 107 N. W. 681.

California. — People v. Bird (1899) Texas.—Howard v. Russell (1899) 124 Cal. 32, 56 Pac. 639, 11 Am. Crim. 75 Tex. 174, 12 S. W. 525. And see Rep. 442; People v. Mooney (1901) 132 Grooms v. State (1899) 40 Tex. Crim. Cal. 13, 63 Pac. 1070.

Rep. 319, 50 S. W. 370. But compare Florida.-Boyd v. Gosser (1918) 78 Eborn v. Zimpelman (1877) 47 Tex. Fla. 64, 70, 6 A.L.R. 500, 82 So. 758, 503, 26 Am. Rep. 315, Houston v. 759.

Blythe (1883) 60 Tex. 506, and Buzard Illinois.-See Riggs v. Powell (1892) v. McAnulty (1890) 77 Tex. 438, 14 S. 142 Ill. 453, 32 N. E. 482, infra, IV.;

W. 138, all of which are treated infra, Howard v. Illinois Trust & Sav. Bank this subdivision. (1901) 189 Ill. 568, 59 N. E. 1106, Vermont.—Rowell v. Fuller (1897) infra, this subdivision; Murphy v. Peo- 59 Vt. 688, 10 Atl. 853; Leland v. Leonple (1904) 213 Ill. 154, 72 N. E. 779, ard (1920) 95 Vt. 36, 112 Atl. 198. infra, V., and Stitzel v. Miller (1911)

Virginia.-Johnson v. Com. (1904) 250 Ill. 72, 34 L.R.A. (N.S.) 1004, 95 N.

102 Va. 927, 46 S. E. 789; ADAMS v. E. 53, Ann. Cas. 1912B, 412, as set out

RISTINE (reported herewith) ante,

1413. infra, III. (all of which show admissions of photographic copies for pur

Washington. See Crane v. Dexter

Horton & Co. (1893) 5 Wash. 479, 32 poses of comparison, but at the same

Pac. 223. time place limitations upon the gen

Wisconsin.See Baxter v. Chicago eral right).

& N. W. R. Co. (1899) 104 Wis. 307, Kentucky.--First Nat. Bank v. Wis

80 N. W. 644, 6 Am. Neg. Rep. 746. dom (1901) 111 Ky. 135, 63 S. W. 461; Ireland.See M'Cullough v. Munn Storey v. First Nat. Bank (1903) 24

[1908] 2 Ir. R. 194—C. A. Ky. L. Rep. 1799, 72 S. W. 319.

Apparently the earliest case in Massachusetts.-Marcy Barnes

which the use of photographic copies (1860) 16 Gray, 161, 77 Am. Dec. 405. was allowed for purposes of compariAnd see Com. v. Tucker (1905) 189 son is Luco v. United States (1860) 23 Mass. 457, 7 L.R.A. (N.S.) 1056, 76 N. How. (U. S.) 515, 16 L. ed. 545, where E. 127, wherein it was held that it was the court used photographic copies of within the discretion of the trial court papers in the archives of the Mexican to permit an expert witness in hand- government for the purpose of testing writing to use photographs as "chalks." the genuineness of the signature to a

questioned grant of government lands. See this case as quoted in the reported case (ADAMS v. RISTINE).

And, as indicated by the citations grouped above, the use of photographic copies of writings for purpose of comparison has now become quite common.

For example, photostatic copies of signatures have been admitted for the purpose of establishing the fact, by comparison with an admittedly genuine signature, that the signatures were written by the same person, as was the case in Moncur v. Western Life Indemnity Co. (1921) 269 Pa. 213, 112 Atl. 476, where this was permitted in proof of the violation by an insured of his warranty that he carried no other insurance than that issued as applied for. And in Howard v. Russell (1889) 75 Tex. 174, 12 S. W. 525, the court used photographic copies of signatures in evidence for another purpose and which were proved to be of the exact, or nearly the exact, size of the originals, as proper evidence for purposes of comparison.

And in Re Gordon (1892) 50 N. J. Eq. 397, 26 Atl. 268, affirmed in (1894) 52 N. J. Eq. 317, 30 Atl. 19, in deciding that the signature to an alleged will was a forgery, the court “looked to the demonstration of the experts," and, "for illustration" of its conclusion as to a difference, placed photographs of the disputed and of a genuine signature together for purposes of comparison.

And handwriting experts have been allowed to use photographs for the purpose of making comparisons and illustrating their deductions and conclusion. This was permitted in the reported case (ADAMS v. RISTINE, ante, 1413). And in Frank v. Chemical Nat. Bank (N. Y.) supra, in holding that photographic copies of genuine writings properly in evidence for other purposes, and photographic copies of questioned writings, can be used by witnesses to illustrate differences testified to by them, the court said: “A question was raised by the defendant as to the presentation and use on the trial of photographic copies and photographic magnified copies of the documents in dispute. The ad

ministration of justice profits by the progress of science, and its history shows it to have been almost the earliest in antagonism to popular delusions and superstitions. The revelations of the microscopes are constantly resorted to, in protection of individual and public interests. It is difficult to conceive of any reason why, in a court of justice, a different rule of evidence should exist, in respect to the magnified image presented to the eye by the lens in the microscopist's instrument, from that which applies to the same image, presented by the lens in the photographer's camera,

and permanently delineated upon sensitive paper. Either may be distorted or erroneous through imperfect instruments or manipulation, but that would be apparent or easily proved. If they are relied upon as agencies for accurate mathematical results in mensuration and astronomy, there is no reason why they should be deemed unreliable in matters of evidence. Wherever what they disclose can aid or elucidate the just determination of legal controversies, there be no wellfounded objection to resorting to them."

And it has been held that a witness who has qualified as an expert may, on cross-examination, be shown signatures and photographs of various writings of the surname of the person whose alleged signature to a will is disputed, and required to state if they are genuine signatures of the testator. ADAMS V. RISTINE (reported herewith) ante, 1413.

But a photograph will not be received in evidence unless it is shown that it is a fair, accurate, and truthful representation of the writing in question. Re Hayes (1913) 55 Colo. 340, 135 Pac. 449, Ann. Cas. 1914C, 531; Geer v. Missouri Lumber & Min. Co. (1896) 134 Mo. 85, 56 Am. St. Rep. 489, 34 S. W. 1099; Hynes v. McDermott (1880) 82 N. Y. 41, 37 Am. Rep. 538; Corbet v. Union Dime Sav. Inst. (1910) 67 Misc. 175, 122 N. Y. Supp. 268; Houston v. Blythe (1883) 60 Tex. 506; Buzard v. McAnulty (1890) 77 Tex. 438, 14 S. W. 138; Crane v. Dexter Horton & Co. (1893) 5 Wash. 479, 32

can

Pac. 223; ADAMS v. RISTINE (reported racy, merely means that they must be herewith) ante, 1413.

made to appear sufficiently accurate For instance, in Geer v. Missouri to be of aid to the trier in ascertainLumber & Min. Co. (Mo.) supra, the ing the truth.

Leland v. Leonard court said that it was unnecessary to (1921) 95 Vt. 36, 112 Atl. 198, holding pass upon the admissibility on other that the fact that the photographic grounds of a photograph offered for copies in question showed certain comparison, where the photograph things not on the originals, and that had not been sufficiently proven to be they were blurred, light struck, overan exact and accurate copy of the developed, and spotted, did not render original.

them inadmissible, since such defects And in Hynes v. McDermott (1880) could be pointed out and explained so 82 N. Y. 41, 37 Am. Rep. 538, the as to enable the court to make a proper court refused to permit expert tes- estimate of their value. timony to be based upon a compari- Photographic copies of writings son between a questioned document sought to be used for purposes of comand photographic copies of genuine parison also have been excluded on writing which were not before the the ground that they are but secondcourt, where the method of taking and ary evidence, and therefore inadmissiaccuracy of the copies was not estab- ble, unless the originals cannot be lished.

had. Thus, in Maclean v. Scripps And in Re Hayes (Colo.) supra, (1893) 52 Mich. 214, 17 N. W. 815, 18 where depositions taken in a will con- N. W. 209, where an attempt was made test and pertaining solely to the au- to show by experts the identity of hand thorship of the will were based upon writing in certain questioned letters purported photographs of the will, it with that of other documents supposwas held that the court did not err in edly genuine, it was held that the excluding such depositions, the evi- photographs were inadmissible in the dence being conflicting as to the ac- absence of a showing that the original curacy of the photographs and wheth- documents were inaccessible. In placer or not they were misleading.

ing its conclusion upon the theory that And in Houston v. Blythe (1883) 60 the photographs were but secondary Tex. 506, it was held that a photo- evidence, the court said: “There was graphic copy of an instrument, as to an exclusion of certain expert testiwhich there was nothing to show that mony of which complaint is made as it was an exact reproduction as to being very important, and as impropsize, etc., could not, although already erly ruled out. This is contained in in evidence, be used as a basis for the a number of depositions in which the introduction of expert testimony by experts undertook to determine idencomparison. And in Buzard v. Mc- tity of hands from a number of photoAnulty (1890) 77 Tex. 438, 14 S. W. graphs of letters, including the Bren138, where a photographic copy of a ton letters and some letters claimed duplicate of the contract sued upon to have been genuine letters of plainwas read in evidence as a part of the tiff. The originals of these papers deposition of the defendant, who were not claimed to be lost or out of signed the contract, it was held that reach. The fact that there were phothe photograph was not admissible for tographs produced, claimed to be use as a basis of comparison with the from the originals, of itself indicates handwriting of the disputed contract, that no such difficulty probably existed, there being no evidence of how the and the case was not claimed to decopy was taken, or that it was an exact pend on any impossibility of producreproduction of the original, or that ing them. No authority seems to jusany effort had been made to secure the tify the proof of the handwriting of original.

obtainable originals, by any species of But it has been held that the rule imitation or copy. That photography that photographic copies, to be ad- may be used to obtain close imitations missible, must be verified as to accu- is, no doubt, true. But it is not a rec

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