Practical Tests in Evidence. to the jury in the case, but would have served rather as an agency of confusion. The correct ness of the diagram introduced by the State, as explained by the draughtsman, is undisputed, and afforded as full aid as could be deemed necessary to a clear understanding of the oral testimony." That photography can lie in respect to landscape as well as portraiture, is evident from an incident on the Tichborne trial. A photograph was exhibited of a place called "the grotto," the scene of alleged miscon duct between the claimant and his cousin, Miss Doughty. As the Chief-Justice said, it represented the grotto to be a spelnnca or cave, a most retired and private spot, whereas in fact it was nothing but a path, about one hundred feet long, shadowed by trees, with a public way on one side and a public towingpath on the- other. The Chief-Justice and Justice Lush both visited the place, and the former said : " I never was more astonished in my life, after having seen the photograph which was exhibited to us; " and the latter said, " I never supposed a photograph would have so disguised a place." It turned out that the picture had- been executed under the direction of a member of Parliament who had bet £600 on the claimant's identity with Roger Tichborne, and figured as one of his 1 most prominent supporters. See More's "Famous Trials," p. 166. In People v. Muller, 32 Hun, 209, an in dictment for selling an obscene photograph, the photograph in question was exhibited to the jury; but other similar photographs, of fered to show the extent to which the busi ness of selling photographs of nude females had been tolerated by the public authorities, were excluded. Photographs of the putative father and the illegitimate child are not inadmissible, but are of but little weight. Re Jessup's Estate, 6 L. R. A. In People 7: Jackson, i1 N. Y. 362, by consent of defendant, a photograph of the scene of the homicide was put in evidence. A witness who was present when the photo graph was taken, and who saw part of the
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affray from a neighboring window, placed three persons in the highway to represent the positions of the defendant and two others at the time of the affray. His testimony as to that fact was held admissible. In Cowley v. People, 83 N. Y. 464; 38 Am. Rep. 464, an indictment against the clerical superintendent of an asylum called "Shepherd's Fold," for starving one of the lambs, photographs were held admissible showing the appearance of the lamb when rescued from the ungentle shepherd's hands and his appearance in his normal condition of avoirdupois on entering the fold. And so to show the appearance of the plaintiff's back three days after an assault and battery. Reddin v. Gates, 52 Iowa, 213. In his brief in Corcoran v. Village of Peekskill, 108 N. Y. 151, commenting on the ad mission in evidence of a photograph showing a repair of defective premises made after an accident, Mr. J. D. McMahon said it "was far more suggestive and forcible than the oral testimony which the court declared to be incompetent, and it illustrates the lines of Horace : — 'Segnius irritant animos demissa per aurem, Quam quae sunt oculis subjects fidelibus.'"
Which being literally interpreted means : — "A donkey's eyes are sharper than his ears."
The whole passage was quoted by the court in Warlick v. White, 76 N. Y. 179. Mr. Conington's translation may perhaps be considered more elegant than mine : — "A thing when heard, remember, strikes less keen On the spectator's mind than when 't is seen."
Unreliability of Photographs. — In his brief in Walsh v. People, 88 N. Y. 458, Mr. A. H. Dailey thus protested against the dis trict attorney's exhibiting to the jury, in his opening, a photograph of the young woman, the victim of the homicide for which the prisoner was on trial : — "The poorest observer of human nature will tell us that the most exalted mind is the constant subject of impressions, made at the instant that the
