cannot be urged to its admissibility, if it is relevant, though doubtless affecting its credibility.'

139

§ 54. Compelling the accused to submit to inspection by the jury or to stand up for identification.-The accused cannot object if he be identified in open court without being required to stand. A direction to a witness to look about the court and point out a person in court whom he thinks committed the crime is always proper." The court or the prosecuting attorney may even point out the accused and ask a witness if that is the person who committed the crime.141

140

If the accused shall voluntarily stand up and so thus be identified by a witness pointing him out, he should not be granted a new trial upon the ground that he has been compelled to testify against himself.142 And it has been held that merely directing the accused to stand up for identification is not compelling him to be a witness against himself.143 The accused may immediately on his arrest, if legally arrested, be subjected to a compulsory

139 The question arises can the demeanor and conduct of the prisoner, his manifestation of emotion or the absence of it during the trial, but not while he is on the witness stand, and if he is not expressly under the inspection of the jurors, be considered by them as a legitimate source of evidence? The rule that the conduct of a witness may be regarded in estimating his credibility has no application here, for the credibility of the accused is not material if he is not a witness, and his demeanor then is only relevant, so far as it bears directly upon the crime, by showing that he is conscious of his guilt or the reverse. Practically it is impossible to prevent jurors from observing the appearance and behavior of the accused very closely while he is in court during the trial. They will naturally draw inferences therefrom either favorable or unfavorable to

him. The information thus obtained is evidence, and, doubtless, many a verdict has been determined thereby. While we countenance the modern jury system and insist upon the right of the prisoner to remain in court and to confront his accusers, we cannot close the eyes of the jurors. See article in 15 Cr. Law Mag., p. 339.

140 State v. Johnson, 67 N. Car. 55. 141 State v. Hall, 79 Iowa 674, 44 N. W. 914; State v. Ruck, 194 Mo. 416, 92 S. W. 706.

142 Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087, Rex v. Watson, 2 Stark. 104, 116, 128; People v. Goldenson, 76 Cal. 328, 347, 19 Pac. 161.

physical examination to ascertain his identity.1** His clothing may be removed so far as is necessary to procure evidence of identity and this may be done by a reasonable amount of force if he resists.145

A witness may always testify to the physical condition of the prisoner when his condition is relevant. He may state what marks he saw on the prisoner's body, whether he was physically deformed in any way, and may describe his general personal appearance so far as he observed it. And this is the rule even where the clothing of the prisoner is forcibly removed without his consent by the police officers who arrested him, or who have him in charge, and his nude body is examined for purposes of identification. The witness may testify to what the prisoner wore and to what articles were found concealed upon him when he was searched. Permitting witnesses to testify to what they saw does not compel the accused to testify against himself, and such a case must clearly be distinguished from that in which the accused is placed upon the witness stand and compelled to answer questions.146 Where the condition of the prisoner's hand at the date of the crime is relevant, it has been held that he may be compelled to exhibit it, devoid of covering; and a witness who saw it thus exhibited at the coroner's inquest may testify to its condition, though the exhibition was obtained by intimidation.147

When a witness has forgotten the appearance of the accused, he has been allowed to testify that on a former trial he had identified the person then accused, and such evidence, if coupled with independent testimony that the present accused is the same person who previously had been identified, is sufficient evidence of identity to sustain a conviction.1

148

The language constituting an identification by a third person not produced in court is hearsay, if coming from a person to whom it was related,149 unless the extra-judicial identification is a part of the res gesta of some relevant fact,150 or unless it is contained in a dying declaration which is admissible as such. The objection that it is hearsay cannot then be urged against it.11

Under this rule a witness will not be allowed to state that a bystander pointed out a person to him and declared that he committed the crime.152

§ 55. Mode and effect of identifying evidence.-The identity of the accused with the person who committed the crime is an important element. Its proof is always essential and in some cases difficult. The relevancy of evidence of identification depends upon the circumstances of the case. Generally speaking, any fact which would convince or tend to convince a person of ordinary judgment in carrying on his every-day affairs, as to the identity of a person will be received. The evidence will be permitted to take a wide range.153 Usually evidence of identity comes from those present when the crime was committed and who state that they saw the accused commit it. This is direct evidence of identification, but circumstantial evidence may be received.15* In an extreme case of this sort, the crime having been committed on a Thursday, the state was permitted to prove that the accused had a superstitious belief that Thursday was a lucky day for him,

prior occasions as robbers from a description of such persons given him by the person alleged to have been robbed. State v. Rutledge, 37 Wash. 523, 79 Pac. 1123.

149 Hopt v. People, 110 U. S. 574, 581, 582, 28 L. ed. 262, 4 Sup. Ct. 202; People v. Mead, 50 Mich. 228, 15 N. W. 95; Rose v. State, 13 Ohio C. C. 342, 7 Ohio Dec. 226; Elsworth v. State, 52 Tex. Cr. App. 1, 104 S. W. 903; State v. Hoover, 134 Iowa 17, III N. W. 323.

People v. Gardner, 144 N. Y. 119, 128, 38 N. E. 1003, 43 Am. St. 741, 28 L. R. A. 699n.

152 Felder v. State, 23 Tex. App. 477, 485-488, 5 S. W. 145, 59 Am. 777n; Reddick v. State, 35 Tex. Cr. App. 463, 34 S. W. 274, 60 Am. St. 56; State v. Hutchinson, 95 Iowa 64 N. W. 610; Davis v. State, 63 Ark. 470, 39 S. W. 356.

566,

163 State v. Stebbins, 29 Conn. 463, 79 Am. Dec. 223; State v. Witham, 72 Me. 531; State v. Martin, 47 S.

150 Jordan V. Commonwealth, 25 Car. 67, 25 S. E. 113.

Gratt. (Va.) 943, 945.

154 Craig v. State,

151 Sylvester v. State, 71 Ala. 17, 26; E. 397.

Ind.

86 N.

and that he would be successful in anything he attempted on that day.155 So it may be proved that the accused had been previously indicted under the assumed name alleged in the indictment.156 A witness may testify that he identified the accused after his arrest as the person he saw commit the crime.157 And a witness may testify that a photograph of the accused taken at the time of his arrest and exhibited to the witness on the stand resembled the person he saw commit the crime.158 A witness testifying to identity may describe a person whom he saw in the vicinity of the crime at the date of its occurrence and he may testify to the actual color, height, weight and other appearances of this person and his description may be compared with that of the accused by the jury.159 One who is present when the accused was brought before the complaining witness for identification cannot testify that the complainant identified the accused, as that is a conclusion of fact, but the witness may testify to whatever the complainant said to the accused in his presence or he may testify that the complainant was silent when he was asked if the accused was his assailant.160

The identity of the name of the accused as given by him in court with the name of the person mentioned in the indictment, raises some presumption of identity of person.161 The names by which the defendant has been known may be proved to show his identity and also to prove that he had given a fictitious name, which under certain circumstances is suspicious.102 It is proper in order that the jury may determine the extent of the knowledge of a witness testifying to the identity of the accused to permit him to be asked how long he has known the accused and how long and how often he had visited him.163 And where the evidence of identity is circumstantial, it may be permitted to take a wide

range. Any facts, which on their face, appear to relate to the accused and which are of a descriptive character which correspond in their details with a description of the accused, shown by other evidence, are admitted. Thus, a description of the accused, giving his name, age, nationality, place of birth and port of arrival contained in a report made by an officer of a vessel to the officers having charge of immigration matters was received, where, from the evidence it appears that the accused had been an immigrant and the descriptive statement tallied in its details with other facts brought out in the evidence.164 If identity is the sole fact at issue and it is proved that a crime had been committed by some one, the jury should be expressly instructed to acquit unless they believe beyond a reasonable doubt that the accused has been identified as the party who committed the crime.165

Whether a witness in identifying the accused as a person who committed the crime is expressing an opinion or stating a fact within his own knowledge is a question upon which a diversity of opinion exists. Some of the authorities regard identity as a fact and require the witness to identify the prisoner solely as a matter of his own knowledge and on personal recollection.

So the witness may be asked, "Do you know A.?" and, if he does, he may then state whether the accused is the individual mentioned. He cannot be permitted to state that he "thinks" the accused is A., or give his impression that a man whom he saw near the scene of the crime is identical with the accused. He should state facts, leaving the inference of identity with the jury.'

166

According to another view a witness, in identifying the accused is expressing an opinion or impression, founded on his observation of numerous details, as his physical appearance, dress or other personal and peculiar incidents. He is accordingly permitted to frame his answer to a question touching the identity of the prisoner, in the form of an expression of opinion or belief or state it as his impression mainly because the facts constituting similarity, or the reverse, in personal appearance are so numerous and peculiar that they cannot be specifically narrated so as to

104 McInerney v. United States, 143 Fed. 729, 74 C. C. A. 655.

105 Petty v. State, 83 Miss. 260, 35 So. 213.

166

People v. Williams, 29 Hun (N. Y.) 520, 523, 524; People v. Wilson, 3 Park. Cr. (N. Y.) 199, 206; State v. Hyatt, 179 Mo. 344, 78 S. W. 601.