was a statement of the law applicable to the facts of the case which the proponents had a right to have given. It not infrequently happens that a court is called on to state how certain classes of evidence are to be viewed; for example, the testimony of an accomplice, or of a subscribing witness to a will who testifies against the will. The original papers were all before the jury, and the book of photographs was offered, not as original evidence, nor as a substitute for original evidence that could not be produced, but to enable the witness to point out more clearly the characteristics of the writing under examination, and the reasons for the conclusions reached by him. Mr. Osborn made a very clear and succinct statement of his views and his conclusions, but no statement he could have made would have made the impression created by the pictorial presentation of his criticisms and conclusions.

Opinion evidence as to handwriting is valuable when direct evidence of a reliable and satisfactory character as to the factum cannot be ob

Evidence-experts-weight.

tained, but it is subject to many abuses and is of a dangerous nature, especially when given by experts in the employment of, and paid by, parties offering it. When there are numerous genuine papers from which the expert is to form his standard for comparison with the disputed document, he has great latitude for selection, and, in selecting samples for use in court, he has the opportunity of selecting those which best subserve his purpose, and omitting those which militate against his conclusions. While frequently of great value, such testimony is subject to this inherent weakness, and it was error for the trial court to have refused the instruction to the jury that the book of photographs was only to be considered as evidence illustrating the viewpoint of the witness Osborn, and that it was their duty to look to the original writings and from them and other evidence in the case to find their ver

dict. When the book of photographs was offered in evidence, it was with the express announcement that it was "for the purpose of demonstrating the reasons for the opinion which Mr. Osborn had expressed," and the instruction tendered carried out that idea.

Our remarks on this subject are not to be taken as any reflection on Mr. Osborn, who stands at the head of his profession, and whom we should regard as incapable of any intentional unfairness, but rather as laying down a general rule for the guidance of trial courts in cases in which the question may arise.

We have pointed out several errors committed during the trial. There remains to be considered their effect on the disposition to be made. of the case in this court. The nonexpert witness Jones displayed so little acquaintance with the handwriting of the testator that his answers to the unfair questions propounded to him could have but little effect upon the minds of the jurors. Neither the questions asked him, nor the opinion expressed by the nonexpert witness Barrett, nor the instruction given at the instance of the contestants, are of such substantial nature as should result in a reversal. The only other error pointed out was the refusal of the trial court to give the instruction tendered by the proponents of the will. No other instruction given presented this feature of the case, and, generally, in such case the result is a reversal and an order for a new trial. But this court is satisfied from the record that the alleged forgery has been established, and that if a new trial is awarded it will result in anoth- Appeal-refusal er verdict similar to the last, unless some new and substantially different testimony is offered by the proponents. There have already been two trials of the case, the first resulting in a hung jury. It is difficult, if not impossible, to obtain a perfect trial, and we are to consider whether or not the verdict may have been brought

of new trial.

about by a refusal to give this instruction. The question involved is not the effect of an erroneous instruction, but of apparently leaving the question at large with no instruction on the subject. Ordina

rily, such refusal would amount to a silent denial of the legal proposition involved, and would forbid argument in support of that view, and this, in most cases, would necessitate reversal. But the instant case is peculiar in that respect. When the book of photographs was offered in eviwas offered in evidence, the counsel for the contestants who offered it stated: "I offer these photographs in evidence for the purpose of demonstrating the reason for the opinion which Mr. Osborn has expressed."

In the face of such announcement, counsel for the proponents was not forbidden to explain fully and argue before the jury the use to be made

of the photographs as set forth in the instruction rejected. He doubtless argued before the jury, as he did before this court, the character of the offer made by counsel when the photographs were tendered, the use to be made of them, and the circumspection with which the testimony of handwriting experts should be received. Certainly, he was not cut off from such argument by the refusal to give the instruction. Under such circumstances, the refusal to give the instruction was not such error as would require a reversal. New trials ought not to be granted when there is no reasonable probability of reaching a different result.

Upon the whole case, we are of opinion to affirm the judgment of the trial court.

Kelly, J., absent.

Petition for rehearing denied April 9, 1924.

I. Introduction, 1431.

II. In general, 1432.

III. Inaccessible writings, 1436.

IV. Enlargements, 1437.

V. Grouped writings, 1439.

1. Introduction.

There is a decided conflict of authority as to the admissibility in evidence of photographs for use in examination and comparison of handwriting and typewriting in disputed documents, but the tendency of the courts apparently is toward admission. In fact, Osborn, in his widely used treatise on "Questioned Documents," at page 324, in discussing the use of photographs for the purpose of comparison of writings, says: "Photographs are now rarely excluded, although always objected to, and in some jurisdictions it is now almost, if not quite, reversible error to exclude them. The tendency of all courts of all states is toward that procedure which assists in showing the facts. In at least ninety-nine cases out of a hundred, photographs

are now admitted, and the most enlightened and progressive courts will hardly listen to objections to them."

However, there are numerous decisions wherein the use of photographs for purposes of comparison has been denied. In some instances, this has been due to the particular facts under consideration, so that the decisions do not necessarily conflict with the general rule of admissibility.

In other instances, the result is traceable to the old common-law rule under which, as formulated in 10 R. C. L. 995, a writing could not be used as a standard of comparison unless it was already in evidence for other purposes or among the files of the case, or else was admitted to be genuine, so that there was no danger of a collateral issue concerning the specimen offered.

And, of course, preliminary proof of the exactness and accuracy of the photographic copy is necessary in any case, in order to permit of its use for

purposes of comparison, and, in the absence of such proof, it is rarely, if ever, admitted. Likewise, the genuineness of the photographed standard must be clearly established.

II. In general.

Apparently it is now quite generally conceded that photographic copies. of writings, if properly authenticated, are admissible, at least under some circumstances, for use in examining and comparing writings. The existence of such a rule of admission is recognized (sometimes with qualifications) in the following cases:

Luco v. United

United States. States (1860) 23 How. 515, 16 L. ed. 545; United States v. Ortiz (1900) 176 U. S. 422, 44 L. ed. 529, 20 Sup. Ct. Rep. 466; Green v. Terwilliger (1892) 56 Fed. 384, affirmed in (1894) 9 C. C. A. 565, 15 U. S. App. 488, 61 Fed. 423. California. People v. Bird (1899) 124 Cal. 32, 56 Pac. 639, 11 Am. Crim. Rep. 442; People v. Mooney (1901) 132 Cal. 13, 63 Pac. 1070.

Florida. Boyd v. Gosser (1918) 78 Fla. 64, 70, 6 A.L.R. 500, 82 So. 758, 759.

Illinois. See Riggs v. Powell (1892) 142 Ill. 453, 32 N. E. 482, infra, IV.; Howard v. Illinois Trust & Sav. Bank (1901) 189 Ill. 568, 59 N. E. 1106, infra, this subdivision; Murphy v. People (1904) 213 Ill. 154, 72 N. E. 779, infra, V., and Stitzel v. Miller (1911) 250 Ill. 72, 34 L.R.A. (N.S.) 1004, 95 N. E. 53, Ann. Cas. 1912B, 412, as set out infra, III. (all of which show admissions of photographic copies for purposes of comparison, but at the same time place limitations upon the general right).

Kentucky. First Nat. Bank v. Wisdom (1901) 111 Ky. 135, 63 S. W. 461; Storey v. First Nat. Bank (1903) 24 Ky. L. Rep. 1799, 72 S. W. 319.

Massachusetts.-Marcy v. Barnes (1860) 16 Gray, 161, 77 Am. Dec. 405. And see Com. v. Tucker (1905) 189 Mass. 457, 7 L.R.A. (N.S.) 1056, 76 N. E. 127, wherein it was held that it was within the discretion of the trial court to permit an expert witness in handwriting to use photographs as "chalks."

New Jersey. State v. Skillman (1908) 76 N. J. L. 464, 70 Atl. 83, affirmed without opinion by equally divided court in (1909) 77 N. J. L. 804, 76 Atl. 1073; State v. Ready (1909) 77 N. J. L. 329, 72 Atl. 445, reversed on other grounds in (1909) 78 N. J. L. 599, 28 L.R.A. (N.S.) 240, 75 Atl. 564. And see Re Gordon (1892) 50 N. J. Eq. 397, 26 Atl. 268, affirmed in (1894) 52 N. J. Eq. 317, 30 Atl. 19, and Goldsboro v. Central R. Co. (1897) 60 N. J. L. 49, 37 Atl. 433, 2 Am. Neg. Rep. 408.

New York.-Frank v. Chemical Nat. Bank (1874) 5 Jones & S. 26. Contra, Taylor Will Case (1871) 10 Abb. Pr. N. S. 300.

Pennsylvania.-Moncur v. Western Life Indemnity Co. (1921) 269 Pa. 213, 112 Atl. 476; Vanderslice v. Snyder (1895) 4 Pa. Dist. R. 424.

South Dakota. See Re McClellan (1906) 20 S. D. 498, 107 N. W. 681.

Texas. Howard v. Russell (1899) 75 Tex. 174, 12 S. W. 525. And see Grooms v. State (1899) 40 Tex. Crim. Rep. 319, 50 S. W. 370. But compare Eborn v. Zimpelman (1877) 47 Tex. 503, 26 Am. Rep. 315, Houston v. Blythe (1883) 60 Tex. 506, and Buzard v. McAnulty (1890) 77 Tex. 438, 14 S. W. 138, all of which are treated infra, this subdivision.

Vermont.-Rowell v. Fuller (1897) 59 Vt. 688, 10 Atl. 853; Leland v. Leonard (1920) 95 Vt. 36, 112 Atl. 198.

Virginia. Johnson v. Com. (1904) 102 Va. 927, 46 S. E. 789; ADAMS v. RISTINE (reported herewith) ante, 1413.

Washington. See Crane v. Dexter Horton & Co. (1893) 5 Wash. 479, 32 Pac. 223.

Wisconsin.-See Baxter v. Chicago & N. W. R. Co. (1899) 104 Wis. 307, 80 N. W. 644, 6 Am. Neg. Rep. 746.

Ireland. See M'Cullough v. Munn [1908] 2 Ir. R. 194-C. A.

Apparently the earliest case in which the use of photographic copies was allowed for purposes of comparison is Luco v. United States (1860) 23 How. (U. S.) 515, 16 L. ed. 545, where the court used photographic copies of papers in the archives of the Mexican government for the purpose of testing 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 can 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 reIceived 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

Pac. 223; ADAMS v. RISTINE (reported herewith) ante, 1413.

For instance, in Geer v. Missouri Lumber & Min. Co. (Mo.) supra, the court said that it was unnecessary to pass upon the admissibility on other grounds of a photograph offered for comparison, where the photograph had not been sufficiently proven to be an exact and accurate copy of the original.

And in Hynes v. McDermott (1880) 82 N. Y. 41, 37 Am. Rep. 538, the court refused to permit expert testimony to be based upon a comparison between a questioned document and photographic copies of genuine writing which were not before the court, where the method of taking and accuracy of the copies was not established.

And in Re Hayes (Colo.) supra, where depositions taken in a will contest and pertaining solely to the authorship of the will were based upon purported photographs of the will, it was held that the court did not err in excluding such depositions, the evidence being conflicting as to the accuracy of the photographs and whether or not they were misleading.

And in Houston v. Blythe (1883) 60 Tex. 506, it was held that a photographic copy of an instrument, as to which there was nothing to show that it was an exact reproduction as to size, etc., could not, although already in evidence, be used as a basis for the introduction of expert testimony by comparison. And in Buzard v. McAnulty (1890) 77 Tex. 438, 14 S. W. 138, where a photographic copy of a duplicate of the contract sued upon was read in evidence as a part of the deposition of the defendant, who signed the contract, it was held that the photograph was not admissible for use as a basis of comparison with the handwriting of the disputed contract, there being no evidence of how the copy was taken, or that it was an exact reproduction of the original, or that any effort had been made to secure the original.

But it has been held that the rule that photographic copies, to be admissible, must be verified as to accu

racy, merely means that they must be made to appear sufficiently accurate to be of aid to the trier in ascertaining the truth. Leland v. Leonard (1921) 95 Vt. 36, 112 Atl. 198, holding that the fact that the photographic copies in question showed certain things not on the originals, and that they were blurred, light struck, overdeveloped, and spotted, did not render them inadmissible, since such defects could be pointed out and explained so as to enable the court to make a proper estimate of their value.

Photographic copies of writings sought to be used for purposes of comparison also have been excluded on the ground that they are but secondary evidence, and therefore inadmissible, unless the originals cannot be had. Thus, in Maclean v. Scripps (1893) 52 Mich. 214, 17 N. W. 815, 18 N. W. 209, where an attempt was made to show by experts the identity of hand writing in certain questioned letters with that of other documents supposedly genuine, it was held that the photographs were inadmissible in the absence of a showing that the original documents were inaccessible. In placing its conclusion upon the theory that the photographs were but secondary evidence, the court said: "There was an exclusion of certain expert testimony of which complaint is made as being very important, and as improperly ruled out. This is contained in a number of depositions in which the experts undertook to determine identity of hands from a number of photographs of letters, including the Brenton letters and some letters claimed to have been genuine letters of plaintiff. The originals of these papers were not claimed to be lost or out of reach. The fact that there were photographs produced, claimed to be from the originals, of itself indicates that no such difficulty probably existed, and the case was not claimed to depend on any impossibility of producing them. No authority seems to justify the proof of the handwriting of obtainable originals, by any species of imitation or copy. That photography may be used to obtain close imitations is, no doubt, true. But it is not a rec