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circumstances of the loss of the
satchel, his search for it, and how he
traced it to Browning and Brown,
and recovered most of the money
from them, but was unable to find
the satchel. Browning and Brown
stated to him that they left the
satchel in the road after taking out
the money. This was objected to be-
cause not made in the presence of
the defendant. The court said : " The
rule invoked has no application here.
Appellant is not charged with a theft
of property, but with perjury con-
cerning it. To prove the theft is ad-
missible, and certainly there could be
no reason for excluding the confes-
sions of the parties charged with the
theft."

46. Brown v. State, 57 Miss. 424;
Lambert v. People, 76 N. Y. 220, 32
Am. Rep. 293, reversing 147 Hun
512; Maines v. State, 23 Tex. App.
568, 5 S. W. 123; Reavis v. State, 6
Wyo. 240, 44 Pac. 62.

Declarations made after an assault
and not in the presence of one ac-
cused of perjury, alleged to have
been committed on the trial of the
assault, are irrelevant and hearsay as
against the accused. Such testimony
is not part of the res gestae, and does
not tend to disprove the facts testi-
fied to by witnesses. Reavis v. State,
6 Wyo. 240, 44 Pac. 62. Contra Mar-
tin V. State, 2,2 Tex. App. 317, 26 S.
W. 400.

In Maines v. State, 23 Tex. App.
568, 5 S. W. 123, it was held error
for the trial court to permit certain
witnesses to testify to conversations
between themselves and another con-
cerning the guilt of the defendant in
a larceny case, wherein the perjury
was alleged to have been committed,
in which conversation neither of the
defendants in the larceny and perjury
cases was present. The court said:
" Such testimony was clearly hearsay,
and the conversations and agree-
ments were res inter alios acta, and
in no manner binding either upon
Wyers (the defendant in the larceny
case) or this defendant."



PERJURY.



767



Declarations of Defendant when contemporaneous and connected
with the principal facts, constitute part of rfie res gestae or serve
to ilkistrate such principal facts, and may be received in his behalf
to disprove the alleged falsity of the matters assigned." But not
when not part of the res gestae.*^

4. Guilty Knowledge, Intent, Etc. — Guilty knowledge, intent,
or corrupt motive are not often susceptible of proof by direct evi-
dence ; and any evidence which tends to show the corrupt motives
which induced the accused to commit perjury ;■*" or which sub-
stantiates the charge made in the indictment as to the guilty
knowledge,^" ma\- be received.

II. DEFENDANT AS WITNESS.

The defendant while on the stand as a witness in his own behalf



47. Spencer v. Com. 15 Ky. L.
Rep. 182, 22 S. W. 559; State v.
Ricketts, 74 N. C. 187; State v. Cur-
tis, 34 N. C. 270.

48. State v. Hunt, 137 Ind. 537, 37
N. E. 409.

In Meyers v. United States, 5 Okla.
173, 48 Pac. 1S6, a prosecution for
perjury in falsely swearing to a con-
test affidavit before the U. S. Land
Office, it was held proper for the
court to refuse to permit the defend-
ant to prove . by witnesses his own
statements relative to his purposes
and dwelling upon the land, the only
purpose of those statements being to
contradict the testimony of witnesses
who had testified for the prosecution
that the defendant had stated to them
that he was on the land as an em-
ploye of the third person.

49. England. — Rex v. Munton,
14 E. C. L. 411 (expressions of
malice toward person against whom
alleged perjury was committed) ;
Reg. V. Boynes. 47 E. C. L. 65.

Georgia. — Hetlin v. State, 88 Ga.
151, 14 S. E. 112, 30 Am. St. Rep.
147.

Iowa. — State v. Clough, ni Iowa
714. 83 N. W. 727.

Michigan. — People v. Macard, log
Mich. 623, 67 N. W. 968 (offering
witnesses money to prevent them
from testifying).

Nczv Hanipsliirc. — State v. Has-
call, 6 N. H. 352.

Texas. — Kitchen 7'. State, 26 Tex.
App. 165, 9 S. W. 461.

Perjury Not Assigned. — While a



perjury not assigned in the indict-
ment cannot be considered on the
question of the guilt of the defendant
upon such other perjury, yet, if the
evidence thereof was legitimately
brought out in the development of the
whole case and related to the same
oath and subject-matter of the per-
jury charged, it may be considered
in determining the question of cor-
rupt intent in swearing to the false
matter upon which the perjury is as-
signed. State V. Raymond, 20 Iowa
582.

In State v. Curtis. 34 N. C. 270,
an indictment for perjury in swearing
that one of several assailants in an
afifray struck the defendant, whereas,
in fact, another of the assailants
struck the blow, it was held com-
petent for the defendant, in order to
disprove a corrupt motive, to show
that immediately on his recovering
consciousness, he had given the same
account of the transaction he did in
his testimony on the trial of the case,
in which the perjury was alleged to
have been committed.

50. Ignited States r. Gardiner, 2
Hayn & H. 89, 25 Fed. Cas. No.
15,186a; Floyd z: State, 30 Ala. 511.

In Adams v. State, 93 Ga. 166. 18
S. E. 553, it was held on a trial for
perjury, that a witness for the state,
after reciting what the accused testi-
fied, when the alleged perjury was
committed, could say that it was
false, at the same time state facts
which conclusively show that it was
false.

Vol. IX



768



PERJURY.



is subject to the same rules as any other witness, and may be asked
any question touching his credibiUty;^^ as well as testifying in his
own behalf.

III. CHARACTER.

When the defendant testifies in his own behalf evidence of his
general moral character is admissible for the purpose of impeach-
ing his credibility.^^

IV. ACQUITTAL.

A judgment of acquittal rendered in the case in which the
alleged perjury was committed is not admissible on a trial for
perjury to show the guilt or innocence of the defendant.^^

V. SUBORNATION OF PERJURY.

Subornation of perjury may be proved by the testimony of one



51. State V. Brown, iii La. 170, 35
So. 501.

In Cordway v. State, 25 Tex. App.
405, 8 S. W. 670, when the evidence
in behalf of the state tended to show
that the accused had testified under
the motive of pecuniary interest
created by bribery, it was held that
he had the right to reply to such evi-
dence by proving that before there
was an opportunity for offering him
a bribe, and within an hour after the
occurrence touching which he testi-
fied, he related the facts and the cir-
cumstances substantially in accord-
ance with his account of them as
subsequently given by him on oath,
as a witness, his testimony as then
given, being the perjury assigned.

The defendant may prove the actual
fact in dispute notwithstanding any
admissions or confessions he may
have made to the contrary. Markey
V. State (Fla.) zi So. 53.

52. Lockard v. Com. 87 Ky. 201,
8 S. W. 266; Barton v. Com., 17 Ky.
L. Rep. 580, 32 S. W. 171 ; State v.
Day, 100 Mo. 242, 12 S. W. 365.

53. State v. Caywood, 96 Iowa
367, 65 N. W. 385 ; State v. Williams,
60 Kan. 837, 58 Pac. 476; Kitchen
V. State, 26 Tex. App. 165. 9 S. W.
461 ; Davidson v. State, 27 Tex. App.
262, II S. W. 371; Hutcherson v.
State, 33 Tex. Crim. 67, 24 S. W.
908. In this case the appellant was

Vol. IX



arrested on a charge of an aggra-
vated assault and battery by striking
another with his fist. Upon the trial
he took the stand in his own favor
and swore that he did not strike her.
Although acquitted of that charge, he
was indicted for perjury, and it was
held that the judgment of acquittal
was not admissible to show the guilt
or innocence of the defendant of the
charge of perjury.

Contra. — ^United States v. Butler,
38 Fed. 498, where the defendant who
had been acquitted upon an indict-
ment for selling liquors without pay-
ment of the special tax required by
law, was subsequently put upon trial
for perjury, in swearing upon his
preliminary examination before a
commission that he did not so sell,
it was held that his acquittal for sell-
ing liquors was a conclusive adjudica-
tion in his favor upon the subsequent
trial for perjury, and that the govern-
ment could not show that his oath
was false.

In Cooper v. Com., 21 Ky. L. Rep.
546, 51 S. W. 789, the defendant had
been tried and acquitted of the crime
of adultery. Thereupon he was in-
dicted for falsely swearing that he
did not have sexual intercourse. It
was held that the defendant had al-
ready been tried and acquitted of
having had sexual intercourse, and
the judgment in that case res ad-



PERJURY.



769



witness.^* But if it is sought to establish by the person suborned
the fact that perjury was committed by him, his testimony must
be corroborated to such fact.^^



judicata against the commonwealth,
^nd he cannot again be put on trial
when the truth or falsity of the
charge in the indictment is the gist
of the question under investigation.
54. In re Frances, i C. H. R.



(Eng.) 121; State v. Waddle, 100
Iowa 59, 67 N. W. 279; Com. v.
Douglass, 5 Mete. (Mass.) 241.
Contra, People v. Evans, 40 N. Y. i.
55. State v. Renswick, 85 Minn.
19, 88 N. W. 22.



PERMISSIVE OCCUPANCY,— See Adverse Pos-
session ; Landlord and Tenant.



PERPETUATION OF TESTIMONY.— See
Depositions.



PERSONAL INJURIES.— See Injuries to Person;
Physical Examination.



PERSONAL PROPERTY. - See Ownership.



PERSONAL SERVICE. —See Service.



PETIT LARCENY. - See Larceny.



49



Vol. IX



PHOTOGRAPHS.

By a. p. Ritten house.

I. JUDICIAL NOTICE, 770
II. ADMISSIBILITY, 771
in. PRELIMINARY QUESTIONS, 771

IV. PHOTOGRAPHS OF PERSONS, ^^2

1. Generally, 772

2. Photographs of Personal Injuries, 774

3. X-Ray Photographs, 775

V. PHOTOGRAPHS OF PLACES, 776

1. Generally, 776

2. Time of Taking Immaterial, 778

3. Change of Conditions, 778

4. Of Assumed Situations, 779

VL PHOTOGRAPHS OF WRITINGS, 779

1. Of Documents, 779

2. Of Signatures, 779

VIL PHOTOGRAPHS IN CRIMINAL CASES, 780

1. To Establish Identity of Persons, 780

2. Photographs of Wounds, 781

3. Of the Scene of Crime, 781

L JUDICIAL NOTICE.

Courts take judicial notice that photography is the art of pro-
ducing and preserving representations of persons, places, and
things, by the action of light upon a prepared surface.^

1. Luke V. Calhoun Co., 52 Ala. preserving views, as well as the like-

115; Barns v. Ingalls, 39 Ala. 193; nesses of persons, and has obtained

Wurmser v. Frederick. 62 Mo. App. universal assent to the correctness of

634. In Udderzook v. Com., 76 Pa. its deHneations. We know that its

St. 340, the court declared: "Pho- principles are derived from science,

tography has become a customary that the images on the plate made

and common mode of taking and by the rays of light through the ca-

Vol. IX



PHOTOGRAPHS.
II. ADMISSIBIUTY.



771



As a general rule photographs are admissible in evidence when
they are shown to have been accurately taken,^ and to be correct
representations of the subject in controversy,^ and are of such a
nature as to throw light upon it.*

III. PRELIMINARY QUESTIONS.

When a photograph is offered in evidence it devolves upon the
trial court, as preliminary to its admission, to determine from other
evidence whether or not the photograph has been accurately taken



mera are dependent upon the same
general laws which produce the im-
ages of outward fonns upon the ret-
ina, through the lenses of the eye.
The process has become one in gen-
eral use, so common that we cannot
refuse to take judicial cognizance of
it as a proper means of producing
correct likenesses."

In State v. Matheson (Iowa), 103
N. W. 137, an action for assault with
intent to murder, an X-ray photo-
graph showing the position of the
bullet in the body of the person
upon whom the assault was com-
mitted, was held admissible, the
court saying: "The court takes ju-
dicial notice of the fact that by
the ordinary photographic process,
a representation may be secured suf-
ficiently truthful and reliable to be
considered as evidence with refer-
ence to objects which are in a con-
dition to be thus photographed, with-
out regard to whether they have
been actually observed by any wit-
ness or not."

2. United States v. PagHano, 53
Fed. looi ; State v. Cook, 75 Conn.
267, S3 Atl. 589; Chicago & A. R.
Co. V. Myers, 8(3 111. App. 401.

Degrees of Accuracy. — In Cun-
ningham V. Fair Haven & W. R.
Co., 72 Conn. 244, 43 Atl. 1047, the
court said : " The proof of ac-
curacy varies with the nature of the
evidence the photograph is offered
to supply. When it it offered as a
general representation of physical
objects, as to which testimony is ad-
duced, for the mere convenience of
witnesses in explaining their state-
ments, very slight proof of accuracy
may be sufficient; but when it is



offered as representing handwriting
which is to be subjected to minute
detailed examination, or any object
where slight differences of height,
breadth or length are of vital impor-
tance, much more convincing proof
should be required."

3. Iroquois Furnace Co. v. Mc-
Crea, 91 111. App. 2)2,7; State v. Mil-
ler, 45 Or. 325. 74 Pac. 658; Ruloff
V. People, 45 N. Y. 213; Cowley v.
People, 83 N. Y. 464, 38 Am. Rep.
464.

Photographs are not admissible in
evidence unless authenticated by
other evidence that they are correct
resemblances or truthful representa-
tions. Chicago M. & St. P. R. Co.
V. Kendall, 49 111. App. 398; People's
Pass. R. Co. of Baltimore v. Green,
56 Md. 84; Leidlein v. Meyer, 95
Mich. 586, 55 N. W. ^67; Goldsboro
V. Central R. Co., 60 N. J. L. 49. 2>7
Atl. 433; Hupfer v. National Dis-
tilling Co., 114 Wis. 279, 90 N. W.
191.

In Blair v. Pelham, 118 Mass. 420,
the court said: "A plan or picture,
whether made by the hand of man or
by photography, is admissible in
evidence if verified by proof that it
is a true representation of the sub-
ject, to assist the jury in under-
standing the case."

4. Photographs which do not
throw light upon any controverted
point are not material and should be
excluded. In re Jessup. 81 Cal. 408.
22 Pac. 742, 6 L. R. A. 594;
Schneider v. North Chicago St. R.
Co., 80 III. App. 306; Perkins f.
Buaas (Tex. Civ. App.). 2>2 S. W.
240; People V. Webster, 139 N. Y.
7Z, 34 N. E. 730.

Vol. IX



772



PHOTOGRAPHS.



and correctly represents the subject in controversy, and the court's
determination of these matters is not open to exception.^

IV. PHOTOGRAPHS OF PERSONS.

1. Generally. — Photographs properly verified are admissible to



5. Connecticut. — Cunningham v.
Fair Haven & W. R. Co., 72 Conn.
244. 43 Atl. 1047.

Florida. — Ortiz v. State, 30 Fla.
256, II So. 611.

////how. — Chicago & E. I. R. Co.
V. Lawrence, 96 111. App. 635; Cleve-
land C. C. & St. L. R. Co. V. Mon-
aghan, 140 111. 474, 30 N. E. 869.

Indiana. — Huntington I<ight &
Fuel Co. V. Beaver (Ind. App.), 73
N. E. 1002.

lozva. — Locke v. S. C. & P. R.
Co., 46 Iowa 109.

Maine. — Jameson v. Weld, 93 Me.
345, 45 Atl. 299.

Massachusetts. — Hollenbeck v.
Rowley, 8 Allen 473; Randall v.
Chase, 133 Mass. 210; Com. v. Mor-
gan, 159 Mass. 375, 34 N. E. 458;
Harris v. Quincy, 171 Mass. 472, 50
N. E. 1042; Cary v. Hubbardston, 51
N. E. 521 ; Dolan v. Mutual Reserve
Fund L. Ass'n, 173 Mass. 197, 53 N.
E. 398; De Forge v. New York, N.
H. & H. R. Co., 178 Mass. 59, 59 N.
E. 669.

New Hampshire. — Pritchard v.
Austin, 69 N. H. 367, 46 Atl. 188.

New Jersey. — Goldsboro v. Cen-
tral R. Co., 60 N. J. L. 49, 37 Atl.
433.

New York. — Ruloff v. People, 45
N. Y. 213.

Photographs, to be admissible in
evidence, must be verified by prelim-
inary proof that they are true rep-
resentations of the places and ob-
jects concerning which inquiry is be-
ing made, and whether they are suffi-
ciently verified or not is a prelim-
inary question of fact, to be deter-
mined by the judge presiding at the
trial, and his decision is not subject
to exception. Blair v. Pelham, 118
Mass. 420; Martin v. Moore, 99 Md.
41, 57 Atl. 671.

Taken by Amateur, and at Vari-
ance With Other Evidence — In Chi-
cago V. Vesey, 105 111. App. 191, an
action for damages for personal in-
juries received by reason of a defec-

Vol. IX



tive sidewalk, a photograph of the
place of the accident, two years after
the happening of the injury, taken
by a daughter of the plaintiff, who
was an amateur photographer, was
admitted by the trial court over the
objection of the defendant. In- pass-
ing on the exception the appellate
court declared the photograph to be
contrary to the testimony of all the
witnesses who described the place of
the accident, and said : " Although
the question as to whether an offered
photograph has been shown to be so
correct a representation as that it
should be admitted is addressed to
the discretion of a trial court, nev-
ertheless, while the admission of
this photograph does not constitute
reversible error, we feel that, taken
as it was by an amateur more than
two years after the accident, and at
variance with testimony given by
each party, it is such that it ought
not, under the circumstances, to have
been admitted."

Rarely Reviewed — In Harris v.
Ansonia, 73 Conn. 359, 47 Atl. 672,
the court said : " Photographs of a
stretch of road with fences and
houses can never represent such ob-
jects in exactly their true proportions
and relations to each other.
Whether they show these propor-
tions and relations sufficiently to be
of value as evidence is a preliminary
question to be decided by the court,
and as to which its decision can
rarely be reviewed." See also Ver-
ran v. Baird, 150 Mass. 141, 22 N.
E. 630.

Discretion of Court Not Unlimited.
When it is shown that photographs
fairly represent the object or objects
under investigation they are admis-
sible in evidence, and, in determining
whether they have been sufficiently
verified, the discretion of the trial
judge is not unlimited, and may not
be exercised arbitrarily. Carlson v.
Benton, 66 Neb. 486, 92 N. W. 600.



PHOTOGRAPHS.



773



establish the identity of persons f but when offered for the purpose
of contradicting a witness they must first be shown to give him
an opportunity to say whether or not they represent the person
of whom he spoke. ^ Photographs have also been held admissible
as tending to prove the paternity of children,* the character and



6. Identity. — Travelers Ins. Co.
V. Sheppard, 85 Ga. 751, 12 S. E. 18.
In United States v. A Lot of Jew-
elry, 59 Fed. 684, it became impor-
tant for the government to show that
a man named Vollkringer came to
New York under the name of
Flamant. In order to prove this a
witness who knew Vollkringer was
shown a photograph of a man, and
he testified that Vollkringer's ap-
pearance corresponded with the pic-
ture. Another witness who had
known the man called Flamant, be-
ing shown the same photograph, tes-
tified that Flamant's appearance cor-
responded with the photograph. It
did not appear when the photograph
had been taken, or whether or not it
was a likeness of Vollkringer. The
court held the photograph admissi-
ble and pertinent to the inquiry then
in hand, but not conclusive.

In Luke V. Calhoun Co., 52 Ala.
115, an action brought by a widow
for the murder of her husband,
plaintiff offered in evidence a photo-
graph which had been sent to her by
her husband, with the indorsement
thereon in his handwriting, " Taken
Jacksonville, Ala., March 19, 1870."
It was shown by the photographer
whose work it was that it was the
likeness of a man bearing the name
of Luke, and was taken at Jackson-
ville, Alabama, about March 20, 1870.
A deputy sheriff who saw the body
after the murder testified that the
photograph was a good likeness of
the murdered man, who bore the
name of Luke. Other witnesses tes-
tified that he bore the name of
Luke. The photograph was held
competent to establish the identity
of the plaintiff's husband with the
murdered man.

7. In an action for personal in-
jury, the photograph of the injured
person was offered in evidence to
contradict the defendant's witnesses,
who had described him in their tes-
timony. Held, properly excluded as



independent evidence, the court say-
ing, " that before it was offered the
counsel should have showed it to the
witnesses and given them the oppor-
tunity to say whether or not the
photograph was that of the person
they saw injured." Stiasny v. Met-
ropolitan St. R. Co., 58 App. Div.
172, 68 N. Y. Supp. 694.

8. Paternity of Children. — In re
Jessup, 81 Cal. 408, 22 Pae. 742, 6 L.
R. A. 594, was a proceeding by an
illegitimate child to establish heirship
to an estate. There was introduced
in evidence a photograph showing
the deceased and the petitioner in the
same picture. It was made shortly
before the trial by bringing two nega-
tives in juxtaposition, and from them
making a third. The negative of the
petitioner was made from life at the
time ; the negative of the deceased
was made several years before. The
purpose of introducing this photo-
graph was to show the resemblance
of the two persons as a fact tending
to prove paternity. The court said :
" We are not prepared to say that
pictures by the improved processes of
photography may not be admissible
for such a purpose, but they would
be entitled to much less weight as
evidence than profert of the persons
themselves."

In an action to set aside a will,
one of the principal questions was
whether the testator was the father
of the defendant in error. A photo-
graph of the testator was admitted
in evidence for the purpose of com-
parison with the features of defendant
in court. Shorten v. Judd, 56 Kan.
43, 42 Pac. iZ7-

In Bastardy Proceedings The

defendant offered in evidence a
photograph of a party since deceased,
in order that the jury might judge
whether the child resembled said
party or defendant. The exclusion
of the photograph was held not er-
ror. Farrell v. Weitz. 160 Mass.
288, 35 N. E. 783.

Vol. IX



774



PHOTOGRAPHS.



disposition of persons,^ and even the race to which persons belong.^"
But they are not admissible to show the appearance of good
health/^ or of old age or infirmity.^"

2. Photographs of Personal Injuries. — Photographs properly
verified as correct representations are generally admissible to show
the nature and extent of personal physical injuries.^^ It is not



9. To Show Character and Dis-
position — In the probate of a will
the question in issue was the sound-
ness of the testator's mind. Photo-
graphs of the testator and his wife,
proved to correctly represent their
appearance up to near the last days
of their lives, were held properly ad-
mitted in evidence as tending to show
the character, vigor, temperament
and disposition of these people as
touching undue influence. Pritchard
V. Austin, 69 N. H. 367, 46 Atl. 188.

10. Racial Appearance In Van

Houten v. Morse, 162 Mass. 414, 38
N. E. 705, an action for damages for
breach of promise of marriage, the
defense was that the plaintiff had
negro blood in her veins, and had
concealed the fact. Photographs of
the plaintiff's parents and sister, and
of the latter's children, which she
testified were correct likenesses, and
had been shown by her to the de-
fendant, were held competent evi-
dence.

11. Rock Island v. Drost, 71 III.
App. 613; Brown v. Metropolitan L.
Ins. Co., 65 Mich. 306, 32 N. W. 610.

12. Gilbert v. West End R. Co.,
160 Mass. 403, 36 N. E. 60.

13. If photographs show the con-
dition or appearance of injuries as
they actually are, they are not ren-
dered incompetent by the fact that
such condition or appearance is cal-
culated to awaken sympathy in the
minds of the jury. Toledo Trac. Co.
V. Cameron, 137 Fed. 48; Miller v.
Minturn (Ark.), 83 S. W. 918; Peo-
ple's Gas Light & Coke Co. v. Amph-
lett, 93 111. App. 194; Reddin v.
Gates, 52 Iowa 210, 2 N. W. 1079;
Jameson v. Weld, 93 Me. 345, 45 Atl.
299; Cooper V. St. Paul City R. Co.,
54 Minn. 379, 56 N. W. 42; Geneva v.
Burnett, 65 Neb. 464, 91 N. W. 275 ;
Carlson v. Benton, 66 Neb. 486, 92 N.
W. 600; Alberti v. New York, L. E.
& W. R. Co., 118 N. Y. 77, 23 N. E.
35, 6 L. R. A. 765.

Davis V. Seaboard Air Line R. Co.,

Vol. IX



136 N. C. IIS, 48 S. E. 591, an action
for damages for the death of a child
by negligence, a photograph of the
child taken just before it was injured,
and another taken afterward, but be-
fore the child died, were held com-
petent evidence. The court said:
" Photographs frequently convey in-



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