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as it was at the time of the shooting is not an objection to the competency of the photograph but goes to its credibility.116

§ 51. Accuracy and relevancy of photographs.-If the correctness of the photograph as a likeness is shown prima facie, either by the testimony of the person who made it or by other competent witnesses, to the effect that it faithfully represents the object portrayed, it should go to the jury subject to impeachment as to its accuracy.117 Whether the photograph is an accurate likeness is then a question for the jury.118

A conflict of evidence regarding the correctness of a photograph does not exclude it, if it is relevant. It should go to the jury, and the other side may be allowed to introduce one they deem to be correct.119 It may not always be necessary to show the correctness of the portrait by positive evidence. In the absence of any attack upon the correctness of the likeness, the court may assume it to be correct from the universal employment of the art, the general assent to the correctness of its delineations and the scientific principles on which they are based."

120

The photograph or picture must be relevant as well as correct. Its relevancy will depend on the relevancy of the scene or object it represents. If a photograph purports to represent a relevant scene or object, but portrays it in a grossly inaccurate manner, so that it practically represents something else, and the scene or object would scarcely be recognized thereby, the non-reliability of the photograph as a correct likeness may almost be considered as producing irrelevancy. But usually the question of relevancy is distinct from that of correctness, and is for the judge exclusively. It is to be determined upon the considerations which govern when the relevancy of any sort of evidence is concerned.121

If a photograph of the accused introduced to prove his identity contains writings or marks which have no bearing upon the ques

State v. Matheson, 130 Iowa 440, 103 N. W. 137, 114 Am. St. 427n.

Mow v. People, 31 Colo. 351, 72 Pac. 1069; People v. Durrant, 116 Cal 179, 48 Pac. 75; Commonwealth v. Switzer, 134 Pa. St. 383, 19 Atl. 681; Ming v. Foote, 9 Mont. 201, 23 Pac. 515. The question, "Is this photograph correct?" though leading,

may be put to the witness. Stuart v. Binsse, 10 Bosw. (N. Y. Super.) 436. 118 Morris v. Territory (Okla.), 99 Pac. 760.

119 Moon v. State, 68 Ga. 687, 695. 120 Udderzook v. Commonwealth, 76 Pa. St. 340, 352, 353; Lake v. Calhoun Co., 52 Ala. 115, 119.

12 The photograph of the accused

tion of his identity, but which by their nature or meaning may injure the accused in the estimation of the jury, it should be rejected. Thus a witness may testify that he was acquainted with the accused, and he may identify him as having seen him in prison or in jail, and he may then state that in his opinion, a photograph exhibited to him is that of the accused. But where a witness by oral testimony has testified that he had seen the accused in prison it was error for the court to receive in evidence a photograph of the prisoner clothed in prison stripes and having a prison number upon his breast, though the witness swears that that is a picture of the prisoner as he saw him in jail.122

Stationing men about the scene to be depicted to show the positions occupied by persons present when the crime was committed, and to aid the recollection of a witness,123 or the fact that a change had been made in the edifice which was photographed, will not render the photograph irrelevant if the change is not too material.12 If, however, the photograph was taken so long after the commission of the crime that material changes may have. taken place it should be rejected, unless it is affirmatively shown that no material change had occurred.125

The photograph to be received need not, as a rule, have been taken by a professional photographer.126 But in one instance a photograph by an amateur was rejected, partly for the reason that he was utterly unfamiliar with the locality.12

is especially valuable and relevant to identify him when it was taken immediately prior to or shortly after his arrest, if the other evidence of his personal appearance at that time is contradictory or unconvincing, or if he had intentionally changed his facial appearance, between his arrest and his trial, by growing or removing a beard or moustache. State v. Ellwood, 17 R. I. 763, 771, 24 Atl. 782; Commonwealth v. Morgan, 159 Mass. 375, 34 N. E. 458; Commonwealth v. Campbell, 155 Mass. 537, 30 N. E. 72.

State v. Moran, 131 Iowa 645, 109 N. W. 187.

123 People v. Jackson, 111 N. Y. 362, 370, 19 N. E. 54.

124 Glazier v. Hebron, 62 Hun (N. Y.) 137, 16 N. Y. S. 503; Parshell v. New York, etc., R. Co., 66 Hun (N. Y.) 633, 21 N. Y. S. 354; People v. Grill, 151 Cal. 592, 91 Pac. 515.

125 Cleveland, etc., R. Co. v. Monaghan, 140 Ill. 474, 483, 30 N. E. 869.

128 Duffin v. People, 107 Ill. 113. 47 Am. 431; Mow v. People, 31 Colo. 351, 72 Pac. 1069; Russell v. State (Ala.), 38 So. 291.

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§ 52. Paintings and drawings.-Pencil and pen-and-ink drawings have been received to identify or explain localities. Though they are received as primary evidence appealing to the eyes of the jury under the rule admitting photographs, they differ from the latter in that their accuracy as portraits or likenesses must be affirmatively shown by the testimony of the artist or other competent witness. There is no presumption of correctness founded on general use and employment, or on their being mechanical reproductions by a process which the court will judicially notice, as exists in the case of photographs. The witness called to prove their correctness must testify of his own knowledge that they faithfully represent the object depicted, and their accuracy, if disputed, is a question for the jury, turning upon the credibility of the witnesses.128

The map of the locus in quo of the homicide or a plan of a house which was the scene of homicide or other crime, may be received in evidence. The main use of these is not as evidence but to enable the jury to better understand the oral testimony.129 The draftsman of the map must testify as to its accuracy, but any other witnesses may refer to it while testifying.130 It is not material by whom the map was prepared providing that he can testify that the map or diagram is accurate and is based upon knowledge derived from his own investigation. Thus a map prepared by the prosecuting attorney from his own observation intended to represent the route that the accused took in going to and returning from the place of the crime has been received. 131

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the persons portrayed were criminals,
was raised, but not decided in Peo-
ple v. Smith, 121 N. Y. 578, 582, 24
N. E. 852. It would seem that the
accusatory and derogatory indorse-
ments, while not keeping out the
photographs, ought to be excluded
from the jury as hearsay, and as cal-
culated to prejudice the prisoner.
120 West v. State, 53 Fla. 77, 43 So.
445.

130 Burton v. State, 115 Ala. 1, 22 So. 585.

131 Burton v. State, 115 Ala. 1, 22 So. 585.

§ 53. "Real evidence"-Inspection by jurors.-Real evidence means evidence which is obtained through the sight by the actual inspection of a person or thing by the judge or jury in open court. 132 The subject of the production in court of articles to furnish visual proof of their condition is considered elsewhere in this volume.133 It remains to consider only cases where a question of personal identity, resemblance or physical condition is concerned. The question is, when may the accused be compelled to submit to an examination by the jurors? Inspection and comparison of persons by the jury have been frequently allowed where race or color was in issue. This is wholly unobjectionable if the accused shall consent thereto, or if he desires to introduce the evidence in his own behalf.134 Whether the accused can be compelled to exhibit a portion of his body to the jury, or be required to submit to a general physical examination by them, is a question upon which a diversity of opinion exists.

Under existing constitutional provisions, an accused person cannot be compelled to testify as a witness' against himself. Hence it has been held that the accused, not being a witness, could not be compelled to stand up before a jury in order that they might ascertain from inspection to what race he belonged.135 Whether compulsory inspection of the accused can be considered to infringe the constitutional prohibition that he shall not be compelled to testify against himself depends somewhat on circumstances. He waives it by going on the stand in his own behalf. If he does this, he must then submit to a cross-examination and

132 Gaunt v. State, 50 N. J. L. 490- head for the purpose of identifica495, 14 Atl. 600, citing cases.

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tion by prosecutrix. Turman V. State, 50 Tex. Cr. App. 7, 95 S. W. 533.

135 State v. Jacobs, 5 Jones (N. Car.) 259. In a prosecution against a negro for living in adultery with an alleged white woman, it was permissible for the state to make profert of the woman to the jury, in order that they might determine whether or not she was a white woman. Jones v. State (Ala.), 47 So.

100.

may be compelled to exhibit a part of his person for the inspection

of the jurors.

Even if he does not go upon the witness stand the majority of the cases hold that jurors can use their eyes as well as their ears, and, recognizing the difficulty of drawing any line of demarkation, maintain the rule that the accused may be required to submit his person or any part of it to the jury for examination.136

Where the accused, on refusing to obey an order to arise in order to be identified, is forcibly compelled to stand up, it has been held that his constitutional rights were not violated nor was he compelled to give evidence against himself,137 upon the theory that there was nothing in the mere act of arising or in his personal appearance which necessarily furnished evidence against him or connected him with the crime. The right of the accused to be present with the jury in court creates a reciprocal duty that he shall remain in their presence. The orderly conduct of a criminal trial requires that the court shall have full power to say what place the prisoner shall occupy, when he shall sit or stand, and that he shall remain within sight of the court and the witnesses. So it is universally admitted that if the prisoner shall appear in a mask, or veiled, or with his head covered, the court may order him to uncover his features, for without this exposure it would not be certain who the person really was who assumed to be the prisoner.138

The information obtainable by inspection is of considerable value when the issue turns upon a question of race or color because of the marked racial characteristics which enable anyone of ordinary intelligence to distinguish between persons of different races. But evidence of identity, race or age thus obtained does not possess much probative force because of the unreliability of the untrained faculties of human observation. This objection

19 State v. Ah Chuey, 14 Nev. 79, 89, 33 Am. 530n; State v. Woodruff, 67 N. Car. 89, 91; State v. Hall, 79 Iowa 674, 44 N. W. 914; Garvin v. State, 52 Miss. 207, 209; State v.. Wieners, 66 Mo. 13. Contra, Blackwell v. State, 67 Ga. 76, 78, 79, 44 Am. 717. But he cannot be questioned while under visual examina

tion, unless he is also a witness. Garvin v. State, 52 Miss. 207, 209.

137 People v. Gardner, 144 N. Y. 119, 127-129, 38 N. E. 1003, 43 Am. St. 741, 28 L. R. A. 699n; State v. Reasby, 100 Iowa 231, 69 N. W. 451.

138 Rice v. Rice, 47 N. J. Eq. 559, 21 Atl. 286, II L. R. A. 591n.

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