the boundaries of land, mural tablets, gravestones and similar bulky articles need not be produced in court for the purpose of proving the inscriptions upon them. So the oral evidence. of the surveyor who has surveyed land is admissible, not only to show the original location of a boundary line,' and the position of the monuments by which it was settled, even when the monuments have been destroyed, but his testimony is also admissible, from necessity, of the marks which were blazed upon the trees along the boundary line.3 But by United States statutes, section 2396, the field-notes and plats of the original surveyor are made primary evidence of the original boundary of public lands.

§ 37. Exception in the case of general results. To prevent the time of the court from being unduly occupied in the examination of evidence consisting of numerous and bulky books and papers in order to prove a single fact or circumstance, the production of such voluminous writings may be dispensed with, and a witness may state verbally the general result of his examination of books or written instruments made out of court. Here it should be noted the witness is not asked to testify to the contents of the writings. He is asked to give primary evidence of an independent fact within his personal knowledge which he has ascertained by the use of his own powers of observation. Thus an expert who has examined the books of account bearing upon the facts in issue may testify that a certain general balance is due thereon; and where an issue of bankruptcy or insolvency is concerned, the general result of an examination of the books and securities of the debtor may be stated without their actual production in court. But a

5

1 Sheetz v. Sweeney, 26 N. E. Rep. if the books are themselves in evi648.

2 Bohrer v. Lange, 44 Minn. 281. 3 Ayers v. Watson, 137 U. S. 584. 4 Schroeder v. Fry, 14 N. Y. S. 71; Burton v. Driggs, 20 Wall. (U. S.) 136; Boston, etc. Co. v. Dana, 1 Gray (Mass.), 83; Holbrook v. Jackson, 7 Cush. 136; Stocking v. St. Paul Trust Co., 39 Minn. 40; 40 N. W. Rep. 365. Contra, Fox v. Baltimore, etc. Co., 12 S. E. Rep. 757; 34 W. Va. 466; McCall v. Moscowitz, 14 Daly, 16. A fortiori

dence, it is not error to permit an expert book-keeper who has examined them to state the result of his examination on the witness stand. Culver v. Marks, 122 Ind. 554; 23 N. E. Rep. 1086.

5 Culver v. Marks, 122 Ind. 554; Wolford v. Farnham, 47 Minn. 95.

6 Meyer v. Sefton, 2 Stark. 274. A debtor's liabilities can be proved by the verbal evidence of his creditors without producing any written evi

witness will not be permitted to testify to the single fact that a certain sale had not been made where he learns that fact only from an examination of the plaintiff's books, unless the books are also produced.1

§ 38. Admissions as primary evidence. As to whether a party's admission of the existence and contents of a writing will render unnecessary notice to him to produce it, and whether his admission can be used against him as secondary evidence of the contents of the writing, the cases are divided. The execution of a deed or other attested instrument must be proved when it is produced, though the grantor, while denying its execution, may have admitted all its statements of fact. If the existence or contents of a deed or other instrument which is not produced be in issue, it has been held that the admission of the party claiming under it or of a party holding under him is primary evidence of the truth of any fact which is recited therein. But there are decisions which sustain the contrary proposition; and in any event the admission of the party ought to be rejected where, instead of a statement of facts recited in the writing, it consists of a confessio juris or opinion of the party upon its legal operation and effect. Where the admission involves a statement of facts as well as a statement of the legal effect of a writing, as where the party declared he was "possessed of a leasehold," or had "dissolved articles of partnership," it will be admissible as primary evidence of the contents of the writing itself, in its entirety.8

dences of indebtedness which they may hold. Rutledge v. Hudson, 80 Ga. 266; 5 S. E. Rep. 93.

278; Edgar v. Richardson, 33 Ohio St. 581; Cumberland Mut. Fire Ins. Co. v. Giltman, 48 N. J. L. 495; 7

1 Hamilton v. Northwood (Mich., Atl. Rep. 424; Wolverton v. State, 1891), 49 N. W. Rep. 37.

See post, § 133.

Slatterie v. Pooley, 6 M. & W. 664; Murray v. Gregory, 5 Wels. & H. 468; Morey v. Hoyt (Conn., 1893), 26 Atl. Rep. 127; Taylor v. Peck, 21 Gratt. (Va.) 11; Loomis v. Wadham, 8 Gray (Mass.), 557; Hoefling v. Hambleton (Texas, 1892), 19 S. W. Rep. 689; Edwards v. Tracy, 62 Pa. St. 374; Blackington v. Rockland, 66 Me. 332; Terry v. Rodahan, 79 Ga.

16 Ohio St. 173.

41 Greenl. on Evid., § 96, citing Lawless v. Quele, 8 Ir. L. 382; Welland Canal v. Hathaway, 8 Wend. 480; Jenner v. Jolliffe, 6 Johns. 9; Hasbrouck v. Baker, 10 id. 248.

5 Bloxam v. Elsie, 1 C. & P. 558; Scott v. Clare, 3 Campb. 236; Rex v. Inhabitants, 3 B. & Ald. 588. 6 Digby v. Steel, 3 Campb. 115. 7 Doe v. Miles, 1 Stark. 181. 8 See 1 Greenl. on Evid., § 96.

§ 38a. Photographs as primary evidence.- Photographs are admissible as primary evidence upon the same grounds. and for the same purposes as are diagrams, maps and drawings of an object or locality which is the subject of controversy. Photographs have been received for the purpose of describing and identifying the premises which are in litigation, or to furnish a means of identifying persons,2 to present visible representation of physical injuries, to supply accurate fac-similes of public records which could not themselves be conveniently brought into court; and enlarged photographs of disputed writings emphasizing, illustrating and making. more prominent peculiarities of handwriting have been employed by experts as standards of comparison." If the accuracy of the photograph is shown prima facie either by the party taking it or by some other competent witness giving evidence that the photograph faithfully represents the object, it should go to the jury subject to impeachment by the other side by means of testimony tending to show its inaccuracy."

1 Nies v. Broadhead, 27 N. Y. S. 52; Cozzens v. Higgins, 33 How. Pr. 439; Blair v. Pelham, 118 Mass. 421; Ayers v. Harris, 77 Tex. 108; Church v. Milwaukee, 31 Wis. 519; Locke v. Railroad Co., 46 Iowa, 112.

2 People v. Smith, 121 N. Y. 578; Luke v. Calhoun Co., 52 Ala. 118; Wash. L. Ins. Co. v. Scheible, 1 W. N. C. 369; Wilcox v. Wilcox, 46 Hun, 32; Udderzook v. Com., 76 Pa. St. 340: Ruloff v. People, 45 N. Y. 224.

Franklin v. State, 69 Ga. 42. Leathers v. Salvor Wrecking Co., 2 Woods, 682; Luco v. United States, 23 How. 541; Daly v. Maguire, 6 Blatchf. 137.

Rowell v. Fuller, 59 Vt. 688; Buzard v. McAnulty, 77 Tex. 438; Tome v. Railroad Co., 39 Md. 90; Marcy v. Barnes, 16 Gray, 163; Eborn v. Zimpleman, 47 Tex. 519; Foster's Will, 34 Mich. 237. See, also, Anderson's Law Dict.; 20 Alb. L. J. 4-6; 24 id. 182-184

6

6 Roosevelt v. Railroad Co., 66 Hun,

633.

7 Turner v. Boston, etc. Co. (Mass., 1893), 33 N. E. Rep. 520; Leidlein v. Mayer (Mich., 1893), 55 N. W. Rep. 367; Omaha, etc. Co. v. Beeson (Neb., 1893), 54 id. 557; Missouri, etc. Co. v. Moore (Tex., 1891), 15 S. W. Rep. 714; Kansas, etc. Co. v. Smith, 90 Ala. 25; Com. v. Switzer, 134 Pa. St. 383; Ming v. Foote, 9 Mont. 201; Archer v. N. Y., N. H. etc. Co., 106 N. Y. 603; Cowley v. People, 83 N. Y. 464; People v. Buddensieck, 103 id. 500; Durst v. Masters, L. R. 10 Prob. Div. 373, 378; Ortiz v. State, 30 Fla. 256. If a party denies that he signed an instrument a photograph of which is introduced, it has been held that the testimony of a witness who is acquainted with his handwriting is not admissible to show that the photograph accurately reproduces his genuine signature. Buzard v. McAnulty, 77 Tex. 438; 14 S. W. Rep. 138. In criminal trials a photograph

But the photograph, plan or diagram must be relevant, and its relevancy will depend on whether the scene or object which it portrays is relevant. The question of relevancy as distinct from the correctness of the photograph is for the judge exclusively, and is to be determined upon the same considerations which govern him where the relevancy of any sort of evidence is concerned.1

Upon the same ground that photographs, maps and plans have been admitted in evidence, pencil or pen-and-ink sketches will be received to identify or explain localities. Their accuracy ought, however, to be shown by the testimony of the person who made them, or some other competent witness, stating under oath that of his own knowledge and observation they faithfully represent the object depicted.2

§ 39. Exhibition of articles in court.- An article the relevancy of which has been shown by being identified with the subject-matter of the issue may be exhibited to the jury in the court-room to enable them to understand the evidence or to realize more fully its force and cogency. Thus the district attorney has been permitted to exhibit to the jury an instrument with which it is alleged an abortion was committed, or a pistol or other weapon or article with which a homicide has been committed, and a witness will be allowed to ex

of the defendant taken shortly after or prior to his arrest is admissible to show his appearance on or about that date, particularly where the evidence of his personal appearance is contradictory. State v. Ellwood, 17 R. L. 763; Com. v. Morgan (Mass., 1893), 34 N. E. Rep. 458.

1 Verran v. Baird, 150 Mass. 150. The fact that a change had been made in the building which was photographed does not render the latter irrelevant if the change is not material. Glasier v. Hebron, 62 Hun, 137; Pashall v. Railroad Co., 66 id. 633. A photograph taken by an amateur who had never visited the place before was held inadmissible in Cleveland, etc. Co. v. Monaghan, 140

Ill. 474. The relevancy of photographs is largely in the discretion of the court, and, unless a manifest injustice has been done, its action will not be reviewed. So even where a party, because of personal injuries, is himself unable to be present and testify, it was held proper to refuse to receive a photograph of him made a year before as proof of his condition at the date he was injured, though it was shown his condition had not changed. Gilbert v. West End St. Ry. Co. (Mass., 1894), 36 N. E. Rep. 60.

2 People v. Johnson (N. Y., 1893), 35 N. E. Rep. 604.

3 Com. v. Brown, 14 Gray (Mass.), 419.

plain how it could have been used.' The clothing worn by the deceased may be shown to illustrate to the jury how close the defendant was to him when he was killed.2 Under similar circumstances the vertebra of the deceased, if properly identified, may be submitted to the inspection of the jury, an objection that such a course is prejudicial to the accused as calculated to excite feelings of horror in the mind of the jurors being deemed without merit. Portions of a body of a woman on whom an abortion is alleged to have been committed, preserved in spirits, may be shown to the jury as explanatory and illustrative of the evidence of the physician who conducted the post-mortem examination. The clothing of the defendant may be exhibited to the jury to show that spots thereon are blood-stains, though the article itself may have been procured from him without his knowledge of the purpose for which it was to be used. So criminating articles which are relevant may be shown on the trial, though they were irregularly or illegally obtained from the defendant; nor does a constitutional enactment providing that no one shall testify against himself hinder the use of the garments or other articles belonging to the prisoner for this purpose.7 Ordinarily it is necessary that the articles exhibited should be connected prima facie at least with the transaction in issue. Though it has been permitted, the propriety and justice of Tex. App. 203; People v. Knapp, 71 Cal. 1; Abb. Cr. Brief, § 586.

1State v. Roberts, 63 Vt. 159; Siberry v. State (Ind., 1893), 33 N. E. Rep. 681; Roderiquez v. State; (Tex., 1893), 22 S. W. Rep. 978; Com. v. Brown, 121 Mass. 69; Hornsby v. State, 94 Ala. 55; State v. Crow (Mo., 1892), 17 S W. Rep. 744; People v. Gonzales, 35 N. Y. 49; People v. Fernandez, 35 id. 49, 64; State v. Mordecai, 68 N. C. 207; Leonard v. Railway Co., 21 Oreg. 655; Gardiner v. People, 6 Park. Cr. Cas. (N. Y.) 157; State v. Graham, 74 N. C. 646.

2 People v. Wright (Mich., 1892), 50 N. W Rep. 792; Watkins v. State, 89 Ala. 82; Frizzell v. State (Tex., 1891), 16 S. W. Rep. 751; Levy v. State, 28

8

6

3 Turner v. State, 89 Tenn. 547; State v. Moxley, 102 Mo. 374. 4 Com. v. Brown, 14 Gray (Mass.), 419.

5 State v. Baker, 33 W. Va. 379. 6 Com. v. Tibbetts (Mass., 1893), 32 N. E. Rep. 910; Gindrat v. People (Ill., 1893), 27 N. E. Rep. 1085; Siebert v. People (Ill., 1893), 32 N. E. Rep. 431. See post, §§ 197, 198.

7 Drake v. State, 75 Ga. 413, 415; State v. Ah Clung, 14 Nev. 79, 83; State v. Garrett, 71 N. C. 95.

8 State v. Ellwood, 24 Atl. Rep. 782; 17 R. I. 763; State v. Duncan (Mo., 1893), 22 S. W. Rep. 690.