PRACTICAL TESTS IN EVIDENCE. IV.
By Irving Browne.
PHOTOGRAPHS — Continued.
Д PHOTOGRAPH of a defendant, taken
- • shortly before his arrest, is admis
sible to show his appearance then as com pared with his appearance at the time of the trial, he having grown a mustache and other wise changed his appearance in the mean time. State v. Ellwood (R. I.), 24 Atl. Rep. 782. The Supreme Court of Illinois, in Cleve land, etc. Ry. Co. v. Monaghan, 30 N. E. Rep. 871, observed : — "It is also urged, as a ground of reversal, that the trial court refused to admit in evidence certain photographic views of the locality where the acci dent occurred, and its surroundings. There are authorities which hold that photographs may be received in evidence, under certain circumstances, to assist the jury in understanding the case, pro vided they are verified by proof as being true representations of the subject. In the present case each photograph was taken two months after the accident occurred, by a merchant, who was a mere amateur photographer, and had never visited the scene of the occurrence before he took the photographs. One of the material questions was whether or not the view of the train which killed the deceased was obstructed by box cars then standing on a side track, and by other objects near the crossing. The pictures taken were not of the situation as it existed on the day of the in jury, but as it was two months after the injury. At the latter date other box cars had been placed upon the track, and the leaves had fallen from the trees. The party taking the pictures did not know whether the objects arranged for his inspection were of the same size, dimensions, height, etc., as those which were there two months before, or whether they occupied the same position. Under these circumstances, we cannot say that the court below acted arbitrarily in refusing to receive the photographs in evidence. The preliminary ques tions of fact as to the verification of the pictures is
addressed to the discretion of the trial judge, and his decision thereon is not subject to exception. Blair v. Pelham, 118 Mass. 420; Hollenbeck v. Rowley, 8 Allen, 473; Randall v. Chase, 133 Mass. 210; Locke v. Railroad Co., 46 Iowa, 109; Ruloff v. People, 45 N. Y. 213. The exclusion of the photographs could not have done the de fendant any injury, as the court permitted it to introduce a colored plat or diagram, which showed the situation of the main and side tracks; of the highway and crossing, of the ditches on the sides of the highway, and of the buildings and other objects at the place where the accident happened."
The Supreme Court of Florida, in Ortiz v. State, u S.W. Rep. 613, observed : — "The adtnissibility of a map or diagram or pic ture, proved to be a correct representation of the physical objects as to which testimony is offered, or to the extent that it is so proved, for the use of witnesses in explaining their testimony and to enable the jury to understand the case more per fectly, whether such map, diagram, or picture be made solely by the hand of man or through the agency of photography, is affirmed in Adams v. State, 28 Fla. 511, and authorities there cited. See also z Rice, Ev. c. 52. Conceding that coun sel's purpose was to use the photograph not as independent evidence, but for auxiliary purposes indicated above, or in other words, in connection with other evidence to enable the jury to under stand and apply it, still we are satisfied that no error was committed by the judge in excluding this picture. Whether or not these pictures are proved to be true representations are questions to be decided, at least primarily, by the trial judge, (Blair v. Pelham, 118 Mass. 420); and it is cer tainly not shown that he has erred in this case. The misrepresentation as to the tree affects the very spot of the homicide, bringing the limbs of the tree against the house or veranda, right where it occurred. We are, moreover, entirely satisfied that this picture could have been of no assistance
