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In his interesting paper on "Experts and Expert Testimony," 24 Alb. L. J. 266, Mr. Moak says: "As a rule scientific works cannot be read in evidence to the jury. . . In summing up to the jury, counsel are entitled to read approved scientific works as a part of their argument." The supreme court of Wisconsin holds that where vitnesses examined as medical experts have testified that books recognized as standard authorities in the profession, lay down certain propositions, or sustain certain conclusions, the books thus referred to may be put in evidence for the purpose of discrediting such witnesses. Ripon v. Bittel, 30 Wis. 614. In State v. Hoyt, 46 Conn. 330, the doctrine as laid down by Mr. Moak was held, but two judges of the five dissented. In Wisconsin and Texas the matter is said to be within the discretion of the court.

It seems a wrong rule that counsel may read to the jury as part of his argument, on scientific facts, books which cannot be put in evidence for the same purpose. Whether the scientific opinion is read to the jury as evidence or as part of an argument seems to work out the same result, namely, to get before the jury the opinion of an expert, at secondhand, and with no opportunity for cross-examination.

Mr. Moak cites three cases to his statement,-Legg v. Drake, 1 Ohio St. 286; Reg. v. Courvoisier, 9 Car. & P. 362; Ripon v. Bittel, 30 Wis. 614. In the first of these cases the court went very near to holding in accordance with Mr. Moak's statement. The proposition was to read from Youatt's work on "Veterinary Surgery." The reading was forbidden. The court on appeal said: "It is not to be denied but that a pertinent quotation or extract from a work on science or art, as from a classical, historical, or other publication may by way of argument or illustration, be not only admissible, but sometimes highly proper. And it would seem to make no difference whether it was repeated by counsel from recollection or read from a book. It would be an abuse of this privilege however, to make it the pretense of getting improper matter before the jury as evidence in the cause." This essay is a fine specimen of inductive reasoning and will well pay perusal. Mr. Moak admirably formulates the existing conditions under which scientific books may be read in evidence. While there can be no hostility to the conclusions that he reaches there well may be a want of sympathy with an exclusionary rule that shuts the averments of modern science from the court room under

any pretext whatever. Law itself is a science and in a state of gestation at that, and yet a law review of any description is admissible before either court or jury. Why should conclusions of other sciences be ignored?

§ 99. Exception Noted.-Mr. Abbott in his Trial Brief, § 459, says: "Statements made in books of inductive science, such as standard medical works, are not competent evidence for any purpose. Otherwise of books of exact science, such as the Northampton tables, and the like, if recognized by the court as such, or shown to be such by a qualified witness. Citing Epps v. State, 102 Ind. 539; State v. Baldwin, 36 Kan. 491; Com. v. Wilson, 67 Mass. 337; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Com. v. Brown, 121 Mass. 69; People v. Millard, 53 Mich. 63; People v. Goldenson, 76 Cal. 328; Bales v. State, 63 Ala. 30; State v. West, 1 Houst. Crim. Rep. (Del.) 371; People v. Cheekee, 61 Cal. 404; Abbott, Trial Ev. 724, 22 Am. L. Reg. N. S. 105, note; 59 Am. Dec. 185, note.

Judge Redfield will be readily recognized as a jurist unencumbered by visionary speculations of doubtful value upon any topic. In his well known work on the Law of Wills he asserts that reading in the hearing of a jury of "general treatises upon scientific and professional subjects has been allowed by many courts, either as part of the testimony or of the argument of counsel. But when objected to, they have not generally been allowed to be read, either to court or jury." Com. v. Wilson, 1 Gray, 337; Washburn v. Cuddihy, 8 Gray, 430; Ashworth v. Kittridge, 12 Cush. 193; S. P. R. v. Taylor, 13 Cox, C. C. 77.

Traveling along the same lines of logic the supreme court of Texas has held that it is a subject vested in the sound discretion of the court, as to the extent to which scientific works may be read in evidence. Dempsey v. State, 3 Tex. App. 429. See generally, on this subject, Bayles v. State, 63 Ala. 30; State v. Hoyt, 46 Conn. 330; State v. O'Brien, 7 R. I. 336; People v. Wheeler, 60 Cal. 581; Yoe v. People, 49 Ill. 410.

There can certainly be no objection to such reading in argument to the court. "I believe that those judges, who carefully study the medical writers, and pay the most respectful attention to their scientific researches on the subject, will seldom if ever submit a case to a jury in such a way as to hazard the conviction of a wronged man." State v. Spencer, 21 N. J. L. 196.

Books of exact science are under a different rule and are generally admissible.

CHAPTER XVII.

PHOTOGRAPHY IN EVIDENCE.

§ 100. Value of Photography as Evidence.

101. The Celebrated Udderzook Case Examined.
102. Accuracy of Photograph may be Questioned.
103. Photographs of Documents, when Admissible.

§ 100. Value of Photography as Evidence.-The recent discoveries of Dr. Lippmann have imparted additional value to the art of photography as a means of evidence. Without employing pigments or coloring matter of any description, this discovery by the use of a sensitized film, transparent and free from all granulations or imperfections, taken in connection with an ingenious combination of mirrors of a most perfect polish gives to the negative when fixed the colors of the object photographed. This reproduction of the color is not an artificial accomplishment, but is entirely due to natural phenomena. For many years the problem in photography has been directed toward this discovery. It gives a permanent value to the photographic process which it has never heretofore possessed, and its direct influence upon evidentiary law must have immediate and permanent effect in that it imparts an additional element of certainty to a process that is already of incalculable advantage in both art and science.

§ 101. The Celebrated Udderzook Case Examined. The phenomenal accuracy of the photographic art has become well recognized as a successful ally in the detection of crime. Few cases of recent years have been more tragic in their incidents or more startling in their developments than that of the famous case of Udderzook v. Com. 76 Pa. 340. This case was tried in 1873, and the opinion of Chief Justice Agnew is especially sig nificant upon the subject now under review. Its obvious pertinency will be questioned by none. The portion contributing to this discussion is in the following language:

"All the bills of exception relate to the use of a photograph of Goss. This photograph, taken on the same plate with a gentleman named Langley, was clearly proved by him and also by the artist who took it. Many objections were made to the use of the

photograph, the chief being to the admission of it to identify Wilson and Goss. That a portrait of a miniature, painted from life and proved to resemble the person, may be used to identify him, cannot be doubted, though, like all other evidence of identity, it is open to disproof or doubt, and must be determined by the jury. There seems to be no reason why a photograph, proved to be taken from life and to resemble the person photographed, should not fill the same measure of evidence. In the case before us, such a photograph of the man Goss was presented to a witness who had never seen him, so far as he knew, but had seen the man known as Wilson. The purpose was to show that Goss and Wilson were one and the same person. It is evident that the competency of the evidence in such a case depends on the reliability of the photograph as a work of art, and this must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The daguer rean process was first given to the world in 1839. It was soon followed by photography. It has become a customary and a 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 on the same general laws which produce the images of outward forms upon the retina through the lenses of the eyes. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses."

§ 102. Accuracy of Photograph may be Questioned.-Photographic pictures are the product of natural laws and a scientific process. It is true that in the hands of a bungler, the result may not be satisfactory. Much 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. Most of evidence is but the signs of things. Spoken words and written words are symbols. 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 aids in determining the matter in issue, still being open, like other proofs of identity, or similar matter, to rebuttal or doubt.

Photographs at best, are but secondary evidence-mere "hearsay of the sun;" and when the lack of better evidence compels a resort to them, the correctness of the photographic copies offered must be shown by proof that the process of taking them was conducted with skill and under favorable circumstances, as well as that the result has been a fair resemblance of the object. Taylor Will Case, 10 Abb. Pr. N. S. 300, 318; Hynes v. McDermott, 82 N. Y. 41, 50, 37 Am. Rep. 538; Cowley v. People, 83 N. Y. 464, 478, 38 Am. Rep. 464.

Still 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. Cozzens v. Higgins, 1 Abb. App. Dec. 451; Cowley v. People, supra; Durst v. Masters, L. R. 1 Prob. Div. 373, 378.

§ 103. Photographs of Documents, when Admissible.— Photographic copies of public documents on file in the 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 handwriting. Leathers v. Salvor Wrecking & Transp. Co. 2 Woods, C. C. 680.

In the case of United States v. Messman (N. Y.) 1 Cent. L. J. 121, which has been on trial before Judge Blatchford, an interesting point of evidence was decided. According to the Herald's report of the case, the action was brought to recover $253.79, on the following charge: Mr. Messman, on the 20th of July, 1864, presented his pay-rolls for the months of January and February, 1864, and upon the presentation of that paper received $253.79. It is charged by the government that on March 18, 1864, he had received his pay for those months, and the inference raised by the government was that he had obtained double pay. The counsel for the defense set up that one of the pay-rolls was a forgery. The government had sent on photographic copies of those payrolls purporting to have been signed by Mr. Messman. The United States assistant district attorney offered to put those photographic copies in evidence, but Judge Blatchford declined to accede to the offer, saying that as the defense was that one of these pay-rolls was a forgery, counsel for the government must

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