George E. (George Emrick) Harris.

A treatise on the law of identification, a separate branch of the law of evidence. Identity of persons and things--animate and inanimate-- the living and the dead--things real and personal--in civil and criminal practice--mistaken identity, corpus delicti--idem sonans--opinion evidence online

. (page 1 of 59)
Online LibraryGeorge E. (George Emrick) HarrisA treatise on the law of identification, a separate branch of the law of evidence. Identity of persons and things--animate and inanimate-- the living and the dead--things real and personal--in civil and criminal practice--mistaken identity, corpus delicti--idem sonans--opinion evidence → online text (page 1 of 59)
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i



COURT OF APPEAL



>ellate District



I




THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



A TREATISE



LAW OF IDENTIFICATION



A SEPARATE BRANCH OF THE LAW OF EVIDENCE.



IDENTITY OF PERSONS AND THINGS ANIMATE AND INANIMATE
THE LIVING AND THE DEAD THINGS REAL AND PER-
SONALIN CIVIL AND CRIMINAL PRACTICE MIS-
TAKEN IDENTITY, CORPUS DELICTI IDEM
OPINION EVIDENCE.



BY



GEORGE E. HARRIS,



OF THE WASHINGTON, D. C., BAR, AND THE BAR OP THE IT. S. SUPREME COURT.
AUTHOR OF CONTRACTS BY HARRIED WOMEN, THE LAW OF SUB-
ROGATION, AND DAMAGES BY CORPORATIONS.



ALBANY:

H. B. PARSONS, LAW BOOK PUBLISHER.
1892.






Entered, according to Act of Congress, in the year eighteen hundred and ninety-two,

BY H. B. PARSONS,
In the office of the Librarian of Congress at Washington.



PREFACE.

V)



In presenting this treatise, the writer is not unmindful that we
have valuable works by many able writers, and on many divisions or
branches of the law of Evidence, not less than twenty authors hav-
ing furnished us works on the various divisions. As they saw fit to
divide it into about seventeen branches, too tedious to enumerate
here, but not one devoted to the evidence of identification, a
branch of the subject which is daily before the courts in its various
phases, the writer has deemed it needful, and of sufficient import-
ance to justify a treatise, and hence this work. The writer has en-
deavored to treat of the identity of persons and things, living and
dead, animate and inanimate ; things real and personal in civil
and criminal practice in England and America. The various means
of identifying the living and the dead, the prisoner and the injured
or killed: by circumstances ; appearance; clothing; photographs;
voice of the living; by opinion evidence; weapons and other
articles, etc. Of things : view of premises by the jury ; portable
goods in court for inspection ; compulsory physical examination for
identity of the person or extent of injuries. Identity of real
estate : by monuments and objects ; courses and distances ; metes
and bounds ; descriptions in deeds and wills. Personalty : in
chattel mortgages, and where the subject of replevin, larceny or
robbery. Ancient records and documents: judgment entries;
liens ; pedigree and heirship. Handwriting : subscribing witness ;
comparison ; conflict. Including corpus delicti : idem sonans,
and mistaken identity, etc.

It may be observed that the writer has omitted the subject of
death by poisoning and drowning. The omission is intentional.



IV



PKEFACE.



The question is referred to only to recognize its existence. It be-
longs to another science, and much has been said and written upon
it, and writers and experts have so far disagreed, that if the writer
had the ability, time and inclination, he would not have space in
this work to reconcile a conflict so hopeless. These subjects, in-
volving the questions of identity above referred to, have been no-
ticed by the writers on the law of Evidence, but it will be seen that
they have given to identification only a passing notice.

The writer has endeavored, with industry and access to the full
and complete library of Congress, to collect all the leading cases and
valuable material on this subject, to be found in the adjudged cases,
both in England and America, not citing all the cases, of course, but
sufficient to support each proposition ; and in so doing, he was not
content in giving a mere abstract principle of law. This might be
sufficient for the practitioner who has daily access to a complete
library ; but is not satisfactory to those less favored. So it has been
deemed better to illustrate principles by given cases which have been
adjudged sometimes giving a brief statement of the facts which
involve the point, and often, for greater certainty, drawing upon the
language of the court. And again, in this style, in the various con-
flicts in decisions, the reader has the reasoning on both sides. With
these suggestions, this work, though imperfect it may be, is respect-
fully submitted to the consideration of a generous profession.

GEO. E. HARKIS.

WASHINGTON, D. C., 1892.



CONTENTS.



CHAPTEE I.

INTRODUCTION.

SEC.

Identity of persons and things 1

Means of identifying persons by name rule as to 2

Personal identity by personal appearance 3

Same means of knowledge proofs to be made 4

Same uncertainty of personal identity 5

Same by circumstances opinion evidence 6

Same opinion evidence when admissible 7

Circumstantial evidence identity of accused. 8

Tracks found near scene of crime 9

Clothing of the deceased exhibited to the jury 10

Same dress identity of person murder rape 11

Personal identity by photograph various purpose 12

Personal identity by the voice when admissible 13

Same rule in Texas arson and Massachusetts attempt at arson 14

Dead bodies identification thereof 15

Same body when burned or drowned 16

Identification of dead body by teeth 17

Land identification by deed 18

Realty bounded on a pond ditch cut on land 19

Same bounded on a river not navigable 20

When river the dividing line 21

Requisites description tax deed construction 22

Personal property necessity for identification 23

Description mule horse oxen 24

Animals described chattel mortgage sufficiency * 25

Animals and other personalty 26

Description what to include uncertainty 27

Same when valid false description 28

Stolen property identity of marks and brands 29

Same cattle, etc., rule in Texas and North Carolina 30

Money cask proof production identity 31

Larceny requisites identity of owner and goods 32

Portable goods brought into court for identification 33

Burglary larceny by millers adulteration 34



vi TABLE OF CONTENTS.

CHAPTEK II.

IDENTIFICATION OF PERSONS.

SBC.

Identified by the voice rule in Texas arson 35

Same rule in Massachusetts attempt at arson , 36

Recognition by the voice rule in Massachusetts and New York 37

Recognition by the voice identity 38

Identity of persons and things 39

Dissimilarity of persons proof of identity assurance 40

Personal identity flash of a gun or pistol in the dark 41

Same a later English case identity 42

Same experiments by professors experts 43

Memory of features discrimination 44

Burglary mistaken identity 45

Lost child marks identity experts 46

Comparison identity of persons and things 47

Uncertainty in personal identity 48

Bigamy identity of the second wife 49

Indictment variance divorce confrontation 50

Action to enforce specific performance heirship 51

Ancestor identity of claim to land 52

Same claim to land identity of name 53

Name identity person remote transaction 54

Bigamy perjury weight of evidence 55

Name in deeds presumption of identity 56

Instruments of crime personal identity 57

Size of the person to be identified 58

Personal appearance peculiarities 59

Instrument used by criminal identity 60

Impressions made by the teeth 61

Bastardy evidence of identity rule in Maine 62

Same rule in Indiana 63

Seduction administering drugs 64

Bastardy criminal conversation 65

Legitimacy bastardy rule in North Carolina 66

Bastardy identity rule of evidence 67

Bank check false representation risk 68

Retailing and larceny personal identity 69

Circumntantial evidence of personal identity 70

Larceny of a package of money identity of the thief 71

Fictitious appeal bond indictment 72

Rape identity of accused clothes 73

Threat to take life verdict 74

Circumstantial evidence of identity 75

Personal appearance human identity evidence 76



TABLE OF CONTENTS. vii

CHAPTER III.

NAME IDEM SONANS.

SEC.

Names words idem sonans verdict 77

Misnomer abbreviation recognizance 78

Same indictment for a nuisance 79

Christian name initial letter 80

First name omitted effect abatement 81

Misnomer abatement addition surname 82

Militia execution wrong name 83

Misnomer defective orthography 84

Bond names sureties rule in Illinois , 85

Names not idem sonans " Henry " and "Harry" 86

Misspelled name firm name strictness 87

Name idem sonans larceny 88

Same bigamy name of wife 89

Names spelling sound alike idem sonans 90

Suit on check identity of bank 91

Promissory note to cashier of bank rule in Indiana 92

Note in bank indorsement identity of bank and cashier 93

Note where payable silent presumption 94

Idem sonans verdict indictment 95

Same indictment assault and battery 96

Corporation name of railroad rule as to 97

Name of indorser witness defendant. 98

Same identity of name person 99

Identity plaintiff's name ' ' Lubuke " and ' ' Lubukee " 100

Introduction by name fraud 101

Land certificates deeds names 102

Deed to land married women ..., 103

Verdict incorrect orthography effect 104

Same defective orthography when not fatal 105

Names in actions rule in England identity 106

Report of death identity of plaintiff 107

Identity of plaintiff by name 108

Parties to actions identity of general rule 109

Same grantor initials deceased plaintiff 110

Name person presumption . . Ill

Malicious mischief boys identified in court 112

Proof of identity letters ancient documents * 113

Soldier name land patent family record - 114

Name presumption proof of signature 115

Name proof deed presumption identity 116

Identity of name when sufficient to identify the person 117

Junior middle letter name immaterial variance 118

Identity of name goods delivered to a swindler 119

Same goods delivered same name 120

Identity of stranger by name merely 121



viii TABLE OF CONTENTS.

SEC.

Same name father and son rule 122

Weight of evidence as to identity indictment 123

Name presumption of identity burglary 124

Forgery opinion evidence signature 125

Inference or conclusion opinion 126

Liability assumed by a stranger 127

Courts will not presume identity 128

Name rule in election cases contest 129

Same elections rule in several States 130

Same contest for office rule 131

In a contested election case in Michigan 132

Application of the rule idem sonans 133

Name in indictment variance where immaterial 134

Murder name of deceased idem sonans rule 135

Larceny assault name of injured person 136

Larceny name of owner rule in Texas , 137

Retailing name of the vendee 138

Growing importance of idem sonans rule. ...,.., . , , , 139

CHAPTER IV.

IDENTITY OF PRISONER.

Identity of prisoner second conviction robbery 140

Same housebreaking 141

Assassination tracks gun shot 142

Footprints identity rule in California. . . . 143

Tracks in the mud identification 144

Tracks jurors examining them 145

Inspection of clothing of deceased 146

Same clothing and rug identified 147

Same coat and pants rule in Texas , 148

Same case of assassination rule in Texas 149

Acts weapons motives surroundings 150

Same blood-stains rule in Missouri 151

Recognizance identity of prisoner 152

Indictment variance name 153

Weapons how to be identified 154

Weapons identified by comparison anarchists 155

Clothing burning bloody. , , , , , , , , , , . . , , , , , , , , , , , , , , , , , , , , , , , , , 156

CHAPTER Y.

PHOTOGRAPHS.

Photograph premises when admissible in evidence. 157

Same evidence action against highway 158

Photographs of two dead men murder 159

Widow identity photograph of dead husband ... 160



TABLE OF CONTENTS. ix

SEC.

Photograph in case of bigamy identity 161

Use of photographs in case of bigamy 162

Same proof of good likeness expert 163

Same state of health life insurance 164

Pictures and inscriptions evidence of pedigree 165

Two photographs of child rule in New York 166

Photograph evidence murder for life insurance 167

Dead body photograph clothing wound ... 168

Photographic view of premises when admissible 169

Photograph of handwriting plea of non est factum 170

Photographic copies papers withdrawn identity 171

Photograph of deceased person of handwriting 172

Photograph of handwriting rule in Texas 173

Same rule as to proof of 174

Test of genuine handwriting forgery 175

Same alleged alteration of check 176

Same another use examining bread 177

Land grant signature photograph copy 178

CHAPTER VI.

OPINION EVIDENCE.

Rule as to experts exceptions opinions of witnesses 179

Instances of exceptions formerly limited 180

Same additional instances opinion 181

Identity non-experts opinion as evidence 182

Identity of persons and things 183

Proof of identity rule of evidence 184

Non-expert opinion publication insurance 185

Same same railroad accident damages .186

Same same ditch effect of clothing described 187

Trespass breach opinion of witnesses 188

Personal identity opinion of witnesses , 189

Non-expert disease of slaves 190

Same injuries rule in Kansas 191

Same rule in New Hampshire and Indiana 192

Same murder assault and battery 193

Same damages values rule in Indiana 194

Same general rule in given cases 195

Same railroad damages infancy 196

Same rule in Massachusetts and Connecticut 197

Same rule as to water power photograph 198

Opinion murder blood spots 199

Same sanity of testator rule in Massachusetts ... 200

Non-expert rule in Indiana. 201

Same sidewalk rule in Illinois 202

Same rule in New Hampshire and Connecticut 203

Non-expert witness rule in Vermont ... 204

B



x TABLE OF CONTENTS.

SEC.

Same rule on the subject 205

Opinion as to the value of a gun 206

Same as the value of a dog 207

Opinion of temperature heat or cold 208

Same instances caution 209

Opinion value of real property 210

Opinion of witnesses covenant trespass 211

Witness opinion of the horse 212

Same same rule in Iowa 213

Opinion as to the capacity of a sewer 214

Same sickness soundness of a slave 215

Opinion breach of marriage contract 216

Same larceny wagon tracks 217

Same murder rule in Massachusetts 218

Same rule in Tennessee 219

Opinion testimony rule in several States 220

Same collision vessel distance 221

Same rule in Massachusetts and New York 222

Weight of opinion evidence rule , 223

Same rule in Kansas 224

Opinion value of personalty damages . . 225

Human identity opinion of witnesses 226

Opinion as to sanity intoxication 227

Intoxication witness' opinion as to murder 228

Same when opinion admissible 229

Murder shooting opinion 230

Opinion circumstantial evidence identity 231

CHAPTER VII.

MURDER IDENTIFICATION.

Identity of deceased prisoner corpus delicti 232

Personal identity prisoner dimensions 233

Same identity in the night-time , 234

Murder identity bones and shoes 235

Murder identity of deceased New York statute .... 236

Murder administering poison 237

Identity by occupation killed the barber 238

Same when the evidence does not identify. . . 239

Murder blood-stains on a shirt identity 240

Same slave indicted identity of pass 241

Murder by one of two or more persons 242

Of accused murder larceny 243

Same robbery evidence 244

Of child murdered rule in England 245

Identity murder head of murdered man 246

Webster's trial identity of the deceased 247

Homicide identity of the deceased 248



TABLE OF CONTENTS. xi

SEC.

Decomposition of bodies presumption 249

Murder alibi opinion circumstances teeth 250

Teeth as a means of identity age 251

Of dead body or its remains 252

Dead body burnt proof of corpus delicti 253

Same strictness in proof of corpus delicti .- 254

Dead body found in the water death by drowning 255

Body exhumed three times identified by the teeth 256

Artificial teeth identity after eleven years 257

Murder identity of deceased by name 258

Same initials rule in Georgia 259

Same murder rule in Texas 260

Same assault and battery rule in Texas 261

Murder blood spots on boards identified 262

Same tracks and a mask found 263

Identity of window skeleton murder trials 264

Anarchists' trial dynamite bombs comparison identity 65

Dress a circumstance of human identity 266

Murder pistol examined by jurors 267

Same opinion evidence rule in Texas 268

Killing with a dirk identity of weapon 269

Murder circumstance suspicion insufficiency. ... 270

Same circumstances may mislead caution 271

Murder for interest in an estate 272

Murder indication of a violent death identity . , 273

Corpus delicti identification of the dead 274

Same death by poisoning 275

Identity of deceased opinion evidence 276

Footprints establishing the fact of murder 277

Footprints as evidence of identification 278

Footprints tracks murder rule of evidence 279

Impressions made by clothing 280

Firearms proximity direction rule as to , . 281

Infanticide birth death what amounts to 282

Of the deceased confession identity 283

Corpus delicti how it may be proved 284

Circumstances remote and proximate 285

Death the result of criminal agency 286

Fatal wound dying condition identity 287



CHAPTER VIII.

ANCIENT RECORDS AND DOCUMENTS.

Ancient document "at thirty years old 288

Same rule in several States 289

Same rule in Pennsylvania and New York 290

Ancient writings comparison ejectment 291



xii TABLE OF CONTENTS.

SEC.

Same deeds evidence rule in Illinois 292

Expert testimony its use its weakness 293

Deed will thirty years old evidence execution 294

Will lands possession thirty years 295

Ancient will date ejectment rule in New York 296

Will devisee name identity of testator 297

Name in judgment idem sonans 298

Identity of devisee evidence of heirship 299

Railroad accident death damages identity of heirs 800

Church register marriages baptisms , 301

Same same plea of infancy 302

Proof of pedigree rule as to evidence 303

Same ejectment agent correspondence 304

Same declarations documents land titles 305

Of child legacy necessary evidence 306

Church register day-book evidence 307

Children when legitimate proof of marriage 308

Church records evidence of pedigree 309

Identity of parties to actions 310

Ejectment burden of proof 31 1

Same ancient documents wills deeds 312

Same holding under sheriff's deed name 313

Married woman deed to land in former name 314

Evidence of identity exceptions to general rule 315

Identity of ancestor claim of land 316

Judgment docket names rule in Pennsylvania 317

Same idem sonans judgment liens 318

Judgment defective entry effect notice 819

Same purchaser or incumbrancer 320

Judgment indexing when is not docketing 321

Same index rule in Nebraska 322

Judgment names rule in Texas 323

Same same rule in Iowa 324

Name misspelled fraudulent purchaser 325

Entering on the docket when lien attaches ,..<..,,,, 326



CHAPTER IX.

HANDWRITING SUBSCRIBING WITNESS.

Identity of signature of attesting witness origin of the rule 327

Same admission rule in England 328

Same same signature of attesting witness 829

Same error doubtful rule conflict 330

Witness out of the way collusion 831

Reason of the rule difference in ruling 332

Same when secondary evidence to be admitted 333

Same attesting witness avoiding subpmna 334



TABLE OF CONTENTS. xiii

SEC.

Same secondary evidence when received 335

Witness signature circumstance not remembered 336

Same same rule in Kentucky 837

Two attesting witnesses one absent 388

Same one dead one in Canada 339

Witnesses absence to be accounted for 340

Same power of attorney presumption of death 341

Witness recollection name circumstances 342

Bond deputy sheriff signature 343

Handwriting of subscribing witnesses 344

Proof of name when prima facie 345

Same idem sonans 346

Deed to father or son same name 347

Parties to actions variance name 348

Identity of pilot collision of vessel . 349

Name promissory note suit for rent 350

Subscribing witness proof of . 351

Photograph writing signature evidence 352

Authority to sign the name of another 353

Subscribing witness to promissory note 354

Ejectment notice witness to 355

Interested witness when incompetent 356

Witness search for diligence required 357

Same diligence rule in United States Supreme Court 358

Subscribing witness secondary evidence general rule 359

Same conflict rule as to handwriting 360

Proof of receipt common carrier early rule 361

Rule as to admitting secondary evidence of signature. 362

Search for attesting witness 363

Same where the witness disappears 364

Diligent search for witness what is 365

Same degree of search good faith 366

When contract proved without writing 367

Writing knowledge of how acquired 368

Knowledge acquired from examining papers 369

By observation and comparison 370

Attesting witness proof when and how made 371

Attesting witness to deed proof 372

Several witnesses necessity of calling them 373

Confession by obligor not sufficient 374

Signature admission not received 375

Same attesting witness satisfactory evidence 376

Fictitious witness attestation evidence. 377

Witness to instrument identity of person name 378

Comparison of writings rule in Massachusetts 379

Assignment indorsement of note 380

Means of knowledge handwriting 381



xiv TABLE OF CONTENTS.

CHAPTER X.

HANDWRITING COMPARISON.

SEC.

Handwriting comparison rule in England 382

Expert testimony American rule 383

Same comparison English, rule. 384

Claim to an ancient peerage signature evidence ... 385

Expert comparison rule in Massachusetts . 386

Libel book entries comparison 387

Comparison on cross-examination 388

Comparison rule in North Carolina 389

Same rule in Kentucky 390

Same rule in New York 391

Experts when called for what purpose 392

Comparison by jury papers taken to jury room 393

Comparison signature photograph 394

Information libel letters evidence 395

Comparison of signature 396

Same same conflict of opinions 397

Same ejectment proof of a will 398

Bill of exchange letter comparison 399

Conflict signature bank president and cashier 400

Same best evidence rule in New York 401

Obligor's admission conflict 402

Deed name widow's dower in land 403

Name in a deed in an indictment . 404

Will codicil forgery act of 1854 405

Witness absent denies attestation 406

Best evidence rule nisi prius . 407

Promissory note forgery identity. . . 408

Testing knowledge of witness identity 409

Identity of lease signature witness 410

Shipbuilding account bill of sale blanks filled 411

Bill single official bond 412

Note indoreer alleged forgery 413

Execution of deed bond rule in Pennsylvania 414

Expert testimony questions of identity 415

Evidence comparison new witness 416

Witness to signature source of knowledge 417

Signature alleged forgery of note 418

Same bank checks discounted 419

Suit by freed woman two notes. 420

Proof of signature admission of obligor 421

Note destroyed receipt signature 422

Land contract receipt forgery 423

Money loaned usury letters signature 424

Ejectment marriage lease signature 425

Comparison English and American rule statute 426



TABLE OF CONTENTS. xv

SEC.

Same statutes construction omission comparison 427

Same documents thirty years old 428

Where one or more letters were seen by the witness rule as to 429

CHAPTER XL

HANDWRITING COMPARISON Continued.

Handwriting comparison civil law rule 430

Same same common law rule 431

Same comparison signature of attesting witness 432

Witness voluntary attestation 433

Evidence identification of handwriting 434

Witnesses to a will proof of signature 435

Proof of signature rule in New York 436

Same rule in Massachusetts 437

Proof of confession of signature to a note 438

Proof of unregistered deed 439

Proof of signature rule in New Hampshire 440

Disputed writing rule in Alabama 441

Same English statute 442

Writing witness cashier of bank 443

Draft proof of letters 444

Maker of note partial payment limitations 445

Proof handwriting limited knowledge 446

Signature identity bill of exchange 447

Alias middle names addition to name 448

Middle letter immaterial variance 449

Middle letters omitted in name transposed 450

Handwriting bill of exchange acceptance 451

Same suit on note identity of maker 452

Same writing subscribing witness rule in England 453

Signature on receipt proof of insufficient 454

Attesting witness proving his own signature 455

Means of knowing handwriting 456

Handwriting imitation spelling detected 457

Confession of signature American rule 458

Murder confession letters writings 459

Comparison writing known to the court 460

Same rule in England 461

Same rule in Alabama 462

Comparison of hands skill of witness 463

Comparison experts bank officers 464



Online LibraryGeorge E. (George Emrick) HarrisA treatise on the law of identification, a separate branch of the law of evidence. Identity of persons and things--animate and inanimate-- the living and the dead--things real and personal--in civil and criminal practice--mistaken identity, corpus delicti--idem sonans--opinion evidence → online text (page 1 of 59)