86

In a homicide trial, the skull, jawbone," 85 or vertebra of the deceased, if properly identified, may be submitted to the inspection of the jury, to show the character and location of the wounds inflicted. Such a course is not prejudicial to the accused upon the grounds that it is calculated to excite feelings of horror in the minds of the jurors."

87

87a

But it is usually wholly within the discretion of the court to order decedent's skull to be exhumed for the purpose of putting it in evidence.88 If there are physicians accessible as witnesses who have dissected the skull and know as much of its condition as can be learned from an examination of it by the jurors it is not error to refuse to order the person having custody of decedent's skull to produce it.89

The introduction in evidence of clothing belonging to the derendant or belonging to a witness or worn by deceased at the time of his death is a common occurrence in a homicide trial. The clothing of the accused may be exhibited to the jury to show that spots found thereon are blood-stains. The proper method is to prove first that the clothing offered belonged to the accused and that it had been worn by him at the date of the tragedy. This is usually done by exhibiting the clothing to the witness and having him identify it as the clothing belonging to or which was worn by the accused. The weight and sufficiency of the identified evidence are questions for the jury. It has been held that it need not be actually proved that the accused wore the clothing on the day of the homicide, if there is some evidence that the clothing belonged to him and was worn by him about that time. After

being connected with accused, the clothing may itself be offered with the testimony that the spots on it are blood-stains.""

The witness may point out the spots. So the clothing of the witness was properly admitted where the witness testified to contradict the statement made by the accused that no one was present when the deceased was shot, that she was there and that she held the deceased and that blood from his wounds flowed on her clothing. Having testified to these facts, she may show her clothing to the jury to corroborate and illustrate her evidence.o1

92

§ 49. Inscriptions on bulky articles.-From the inconvenience which would ensue if their actual production in court were required, the rule has long been recognized that monuments, natural or artificial, used to mark the boundaries of land, sign-boards,' mural tablets, gravestones, packages of merchandise and similar bulky articles, need not be produced for the purpose of proving inscriptions on them. The inscriptions may be proved by the evidence of a witness who has read them. So the oral testimony of a surveyor is admissible to describe the monuments which constitute and mark out a boundary line,93 and, from necessity, to prove the marks which were blazed upon the trees near the same. An invoice is competent to prove the marks upon cases of merchandise described in it.95

94

Upon the same grounds and because of the general notoriety of the facts involved, oral evidence of the contents of resolutions passed at public meetings, and of inscriptions on flags or banners

an assault who died is competent to
corroborate proof that a bullet was
fired at his chin. People v. Way, 191
N. Y. 533, 84 N. E. 1117, aff'g 119
App. Div. (N. Y.) 344, 104 N. Y.
S. 277.
The skull of deceased in
homicide was received to sustain the
theory of the prosecution that he was
struck by the accused with a pick
in the head while leaning forward
with his head down, against the
claim of the accused that the killing
was in self-defense. State v. Lewis
(Iowa), 116 N. W. 606.

6 UNDERHILL CRIM. EV.

State v. Sherouk, 61 Atl. 897, 78 Conn. 718, not reported in full; State v. Whitbeck (Iowa, 1909), 123 N. W. 982.

91 Thomas v. State, 45 Tex. Cr. App. 111, 74 S. W. 36.

92 State v. Wilson, 5 R. I. 291.

Borer v. Lange, 44 Minn. 281, 286, 46 N. W. 358.

"Ayers v. Watson, 137 U. S. 584, 600, 34 L. ed. 803, 11 Sup. Ct. 201.

carried in public parades, has always been admitted in criminal trials.96

As regards unrecorded brands and marks upon cattle, one who has seen them may testify to their existence," and may explain their character and meaning.98 And in a prosecution for the unlawful sale of liquors, the names of the liquors marked on the bottles and other vessels may be proved without producing the vessels or labels.99

The contents of a writing may be proved orally where the identity of an article to which it was attached is relevant. Thus, a witness may state orally what was on a tag,100 or a label,101 which was affixed to a bag, or a package, without producing the writing. 102

Secondary evidence may be given of writing that cannot be produced in court, such as mural monuments, documents shown to be in a foreign country, books of a concern the removal of which would be very inconvenient and others, such as a license required by the federal statute which cannot be removed from the place of business of accused, and produced in court without violating the federal statute.103

104

§ 50. Photographs as primary evidence-Personal identity.Photographs, whether originals or copies,1 are admissible as primary evidence upon the same grounds and for the same purposes as are diagrams, maps105 and drawings of objects or places. Photographs have been received for the purpose of describing

96 Sheridan's Case, 31 How. St. Tr. 543, 672.

State v. Cardelli, 19 Nev. 319, 10 Pac. 433; People v. Bolanger, 71 Cal. 17, II Pac. 799; Brooke v. People, 23 Colo. 375, 48 Pac. 502.

102 A witness may testify to certain marks which he saw upon the clothing worn by the accused. Commonwealth v. Hills, 10 Cush. (Mass.) 530, 533.

103 Wilcox v. Wilcox, 46 Hun (N.

98 Boren v. State, 23 Tex. App. 28, Y.) 32. 33, 4 S. W. 463.

90

104 Joliff v. State, 53 Tex. Cr. App.

Commonwealth v. Blood, 11 Gray 61, 109 S. W. 176. (Mass.) 74.

105 Adams v. State, 28 Fla. 511, 10

100 Commonwealth V. Morrell, 99 So. 106; State v. Roberts, 28 Nev.

Mass. 542.

101 Commonwealth v. Powers, 116 Mass. 337, 338.

350, 82 Pac. 100; Jarvis v. State, 138 Ala. 17, 34 So. 1025.

and identifying premises which were the scene of a crime,106 and they need not show all the premises if they show the material part.107

Photographs of the scene, taken several months after the crime was committed, were properly admitted where it appeared that the condition of the premises had not materially changed in the meantime.108

It is not allowable, however, for the prosecution to arrange a scene assumed to represent the res gesta of the crime and then to photograph the scene represented. In a recent case, the chief witness for the prosecution very carefully reproduced by means of persons employed for the purpose, the situation of the parties to the homicide, and a reproduction of the occurrences which took place at the time of the killing. This reproduction was photographed but the court rejected the photograph. 108a So in a homicide case, a photograph of a man lying on a porch in the position in which the body of the victim of the homicide was found, was rejected.109

Photographs are always admissible as primary evidence of the identity of persons alive or dead,110 and to present delineations of

206

People v. Pustolka, 149 N. Y. 570, 43 N. E. 548; State v. Kelley, 46 S. Car. 55, 24 S. E. 60; State v. O'Reilly, 126 Mo. 597, 29 S. W. 577; People v. Grill, 151 Cal. 592, 91 Pac. 515; People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690.

10 Chestnut Hill, etc., Co. v. Fiper, etc., Co., 15 Weekly Notes 55. "It (the photograph) exhibited the surface, condition and state of the wall, and it no doubt carried to the minds of the jurors a better image of the subject-matter concerning which negligence was charged, than any oral description by an eye-witness could have done. In such a case 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." People v.

Buddensieck, 103 N. Y. 487, 500, 9 N.
E. 44, 57 Am. 766.

108 Gibson v. State, 53 Tex. Cr. App. 349, 110 S. W. 41.

108a Fore v. State, 75 Miss. 727, 23 So. 710.

109

People v. Maughs, 149 Cal. 253, 86 Pac. 187.

110 Shaffer v. United States, 24 App. D. C. 417; Commonwealth v. Johnson, 199 Mass. 55, 85 N. E. 188; Young v. State, 49 Tex. Cr. App. 207, 92 S. W. 841; State v. Hasty, 121 Iowa 507, 96 N. W. 1115; People v. Durrant, 116 Cal. 179, 48 Pac. 75; Wilson v. United States, 162 U. S. 613, 40 L. ed. 1090, 16 Sup. Ct. 895; People v. Smith, 121 N. Y. 578, 582, 24 N. E. 852; Udderzook v. Commonwealth, 76 Pa. St. 340, 352, 353; Ruloff v. People, 45 N. Y. 213, 224; Beavers v. State, 58 Ind. 530; Marion

wounds or other physical injuries, as, for example, to show that a child had been insufficiently fed or ill-treated.1

112

So photographs of the bodies of drowned persons have been received for purposes of identification even when the bodies had remained in the water for a very long time, and the likeness, because of this and of the disadvantageous circumstances under which it was made, was bad.113

114

Photographs are sometimes received to supply accurate facsimiles of public records which cannot be conveniently brought into court,11 and enlarged photographs of disputed writings emphasizing, illustrating and making prominent peculiarities of handwriting have been employed by experts as standards of comparison.115

X-ray photographs have been received in evidence and are of value to show the location of the bullet in the body of a deceased person. The same rules and principles which apply to ordinary photographs are applicable to them. It must first be shown that they were prepared by one who understood their preparation. An objection that there was no evidence before the jury that the object represented in the radiograph was a bullet and that the object was in the same position when the radiograph was taken

v. State, 20 Neb. 233, 240, 29 N. W. 911, 57 Am. 825; Luke v. Calhoun Co., 52 Ala. 115, 118, 119; State v. McCoy, 15 Utah 136, 49 Pac. 420; Morris v. Territory (Okla.), 99 Pac. 760; Commonwealth v. Keller, 191 Pa. St. 122, 43 Atl. 198 (of deceased standing beside a witness to show the size of deceased by comparison).

State v. Miller, 43 Ore. 325, 74 Pac. 658; State v. Hasty, 121 Iowa 507, 96 Mo. 1115 (in adultery to identify the defendant's paramour); Franklin v. State, 69 Ga. 36, 42, 47 Am. 748.

224. A witness who found a mutilated body of a man whom he had never seen alive, which had been buried several days, was allowed to testify that the face, though swollen and discolored, resembled a photograph shown him. Udderzook v. Commonwealth, 76 Pa. St. 340.

114

Leathers V. Salvor Wrecking, etc., Co., 2 Woods (U. S.) 680, 682, 15 Fed. Cas. 8164; Luco v. United States, 23 How. (U. S.) 515, 541, 16 L. ed. 545.

116 Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853; Buzard v. McAnulty, 77 Tex. 438, 14 S. W. 138; Marcy v. Barnes, 16 Gray (Mass.) 161; Johnson v. Commonwealth, 102 Va, 927, 46 S. E. 789.