Eborn v. Zimpelman.

scarcely be contended that the testimony of a witness who had only seen the photograph would be as satisfactory as if he had known the original.

Our conclusion is that photographic copies of instruments sued on can only be used as secondary evidence; that in this case no proper foundation was laid for the introduction of secondary evidence, and that the depositions in regard to the photographic copies were improperly admitted. It does not appear that any effort was made to procure the leave of the court or the consent of the opposite party to use the originals, nor does it appear that it was impracticable to procure the attendance of the witnesses, so that they might examine the originals. The issue as to the genuineness of the writings was one made and to be tried in the District Court of Travis county, where those writings were on file. It seems that there were witnesses in North Carolina, whose testimony as to the handwriting was wanted, some by the plaintiff and some by the defendant. The former procured his witnesses to visit Austin. In one instance, at least, the latter did the same. If there were other witnesses for defendant, whose attendance was not procured, that was the misfortune of appellee, but did not authorize the course pursued. If photographic copies of writings may be made useful as affording increased facilities for obtaining the testimony of distant witnesses as to handwriting, our opinion is, that until the legislature sees fit to authorize their use for such a purpose, under proper precautions, the courts can only allow it where better evidence is not to be had; and that the mere fact that the witness is the resident of another State, and the writings are on file in a court of this State, does not present such a case. It is at least questionable whether witnesses who did not know the handwriting of Thos. Eborn should have been allowed to give their opinion that these instruments were in the handwriting of William Eborn. No authority has been cited for the admissibility of such evidence, and in the absence of authority, it seems to us not within the rule which allows a witness who knows the handwriting of a party, to declare his belief as to the genuineness of an instrument purporting to be signed by him. Evidence that William Eborn, in fact, wrote the instruments, would clearly be competent, but it seems to us that to make the opinion or belief of witnesses not introduced as experts as to handwriting, admissible, they should know the handwriting of the purported signer of

the instrument.

Eborn v. Zimpelman.

For this additional reason, the evidence as to the

photographic copies should have been excluded.

[Omitting minor points.]

The judgment is reversed and the cause remanded.

Reversed and remanded.

NOTE BY THE REPORTER.-In this case, counsel for appellee made the following ingen. ious argument on the admission of the photographic copies :

"Until photography was discovered, nothing in nature was exactly like any other thing, except that thing's image reflected in a polished surface, which disappeared when the object was removed. Until this discovery there was, therefore, reason in the rule which required the production of the original paper writing as the best evidence of its appearance. Science now steps forward and relieves the difficulty, by making permanent, and materializing with minute exactness the reflected image. What reason thus remains why a discovery, which destroys the foundation for a rule, should not be used as proposed in the ascertainment of right? Every object seen with the natural eye is only seen because photographed on the retina. In life the impression is transitory; it is only when death is at hand that it remains permanently fixed on the retina. Thus we are secure in asserting that no witness ever swore to a thing seen by him without swearing from a photograph. What we call sight is but the impression made on the mind through the retina of the eye, which is nature's camera. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See recent experiments stated by Dr. Vogel in the May number, 1877, of Philadelphia Photographic Journal.) Take the case of a murder committed on the highway; on the eye of the victim is fixed the perfect likeness of a human face. Would this court exclude the knowledge of that fact from the jury, on the trial of the man against whom the glazed eye of the murdered man thus bore testimony? In other words, would a living eye-witness, whose memory only preserved the fleeting photograph of the deed, be heard, and the permanent photograph on the dead man's eye be excluded? We submit that the eye of the dead man would furnish the best evidence that the accused was there when the deed was committed, for it would bear a fact, needing no effort of memory to preserve it. It would not be parol evidence based on uncertain memory, but the handwriting of nature, preserved by nature's

camera.

In Re Stephens, L. R., 9 C. P. 187; 8 Eng. Rep. (Moak) 481, certain documents had been annexed to a commission returned and filed in that court, and a mandamus had been issued for the examination of witnesses in the Court of Exchequer, which would involve the production of those documents; an application was made in this court for leave to take them from the office for that purpose. The application was denied, but COLERIDGE, C. J., said that if the identification of the handwriting became necessary, "that difficulty might be got over by taking photographic copies - - a thing which is by no means uncommon at the present day."

In Leathers v. The Salvor Wrecking Co., 2 Wood, 682 (U. S. Cir., South Dist., Miss.), it was held that photographic copies of public documents on file in the public departments at Washington, which public policy requires should not be removed, are admissible in evidence when their genuineness is authenticated in the usual way by proof of the hand writing.

In the case of Udderzook v. Commonwealth, 76 Penn. St. 340, it was held that on the trial of an indictment for murder, a photograph of Goss taken in life, testified to be like a mutilated body found, was evidence to go to the jury that the body was that of Goss. Here, certainly, it was not the best evidence of which the case was capable, because witnesses could have viewed the body and testified from observation of it and acquaintance with the deceased. But there was corroborative evidence, and the court said: Happily the proof of identity in this case is not dependent on the photograph alone." The court say on the general subject: "The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation's experience. It has become a customary and common mode of taking and preserving views as well as the like

Eborn v. Zimpelman.

nesses of persons, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses. To the same effect are Luke v. Calhoun County, 52 Ala. 118, and Ruloff v. People, 45 N. Y. 213. In both these cases there was other evidence of identity, and in the latter the court said "the photographs were competent though slight evidence in addition to the other and more reliable testimony."

་་

In Washington Life Ins. Co. v. Schaible, 1 Weekly Notes of Cases, 369, the action was on a policy of life insurance, and the defense was a breach of warranty. There was evidence that the deceased died of consumption shortly after the policy was issued. On the offer of the plaintiff a colored photograph of the deceased taken a short time before her death, which several witnesses testified was a good likeness, was admitted. The Supreme Court of Pennsylvania, on appeal, held that this was not error.

In Daly v. Maguire, 6 Blatchf 137, an action for infringement of copyright of a play, a printed programme of a theatrical performance at San Francisco, and newspaper slips had been annexed to a deposition on file. Application was made for leave to take them from the files and annex them to a commission about to be sent in the cause to San Francisco. The application was granted on condition that their place should be supplied, under the direction of the clerk, by photographed fac similes. Here was no question of handwriting, and the witnesses were not to be required to inspect and swear to the copies, but to the originals.

In Tome v. Parkersburgh Branch R. R. Co., 39 Md. 693; 17 Am. Rep 540, on a question of handwriting, photographic copies of the genuine writing, some of them magnified, were offered with the writing in question, and with the opinion of the photographer. The court said: "The testimony of the photographer comes within the same principle as that of Paine. It was offered to establish the forgery of the certificates in controversy, by comparing them with copies (obtained by photographic processes, either magnified or of the natural size) of certain signatures assumed or admitted to be genuine, and pointing out the differences between the supposed genuine and disputed signatures. As a general rule, as the media of evidence are multiplied, the chances of error or mistake are increased. Photographers do not always produce exact fac similes of the objects delineated, and however indebted we may be to that beautiful science for much that is useful as well as ornamental, it is at last a mimetic art, which furnishes only secondary impressions of the original, that vary according to the lights and shadows which prevail whilst being taken."

Exactly the reverse of this was held in Marcy v. Barnes, 16 Gray, 161, mentioned in the principal case. The court say of the magnified copies introduced : "Under proper precautions in relation to the preliminary proof as to the exactness and accuracy of the copies produced by the art of the photographer, we are unable to perceive any valid objection to the use of such prepared representations of original and genuine signatures as evidence competent to be considered and weighed by the jury."

In Matter of Will of Foster, 34 Mich. 21, the will being proved by the subscribing witnesses, the contestants proposed to furnish the jury with photographic copies The court said: "If the court had permitted photographic copies of the will to be given to the jury, with such precautions as to secure their identity and correctness, it might not perhaps have been error. Nevertheless it is not always true that every photographic copy would be safe on any Inquiry requiring minute accuracy. Few copies can be so satisfactory as a good photograph, But all artists are not competent to make such pictures on a large scale, and ail photographs are not absolutely faithful resemblances. It is quite possible to tamper with them, and an impression which is at all blurred would be very apt to mislead on questions of handwriting. where forgery is claimed. Whether it would or would not be permissible to allow such documents to be used, their use can never be compulsory. The original and not the copy is what the jury must act upon, and no device can properly be allowed to supersede it. Copies of any kind are merely secondary evidence, and in this case they were intended to be used as equivalent to primary evidence in determining the genuineness of the original document. That and that only was in controversy and was in court to be shown to the jury. How

Giddings v. City of Antonio.

ever fortunate it may be that copies can now be produced which will closely resemble originals, it would be an unauthorized assumption to hold that courts should be compelled to receive additional and supplementary proofs which were neither necessary nor admissible before, and which are at best merely convenient aids to enable juries to dispense with the primary evidence."

In Blair v. Pelham, 118 Mass. 421, an action to recover for injuries from a defect in a highway, a photograph of the place was held admissible, when verified by proof of its correctness, to assist the jury in understanding the case. To the same effect is Cozzens v. Higgins, N. Y. Ct. App., 33 How. Pr. 439.

In Church v. Milwaukee, 31 Wis. 512, the action was to recover damages for an injury to plaintiff's premises by reason of the change of grade of a street, and the court held that a photograph of the premises proved to be correct was properly admitted, it being impracticable for the jury to view the premises. COLE, J., delivering the opinion, said:

"The plaintiff had a photograph taken of the premises, which was received in evidence against the objection of the defendant. The city engineer was present when the photograph was taken, and the plaintiff testified that the picture was as perfect as it could be. No effort was made to impeach the general correctness of the photograph, and we are really unable to perceive any valid objection to its admission in evidence. It might aid the jury in arriving at a clear and accurate idea of the situation of the premises, and enable them the better to understand how they were affected by the change in the grade. Of course, the main thing was to bring before the minds of the jury the location of the plaintiff's lot and improvements and all the surroundings; and this had to be done by the description of witnesses acquainted with the place, or by pictures or diagrams. If the photograph was a perfect representation of the premises, why should it not be admitted in evidence to aid the jury in determining how they were affected by the alteration of the grade? It is said that the premises themselves were the highest evidence, and if the jury could have had a view of them, it would have greatly assisted them in passing upon the questions before them. So, undoubtedly, it would. But as a view was impracticable, the jury had to obtain the best idea they could of the location of the premises with reference to the changed grade. They were compelled to rely upon the description of witnesses, pictures and diagrams, and such means of information as they had before them. And it appears to us that it was no violation of the rules of evidence to allow the photograph of the premises to go to the jury with the other testimony. The case of Ruloff v. The People, 45 N. Y. 213, seems to sanction the admission of such evidence, and we do not really perceive any substantial objection against it. The defendant was permitted to give in evidence a diagram or profile of the premises for the purpose of showing the general surroundings of the property; and the photograph was competent for the same purpose." Letter-press copies of correspondence were held to be secondary evidence and not admissible in Wilkins v Earle, 44 N. Y. 166; s c., 4 Am. Rep. 655. The court said: “We are of opinion that they were not in any sense original papers, and were in their character copies to the same extent that other copies carefully compared would have been." If this reasoning is sound, a photographic copy cannot be much relied on for correctness.

An act of a legislature entitled "an act to incorporate the San Antonio and Mexican Gulf Railroad," and which provides that certain towns may issue

VOL. XXVI-41

Giddings v. City of Antonio.

bonds to aid in the construction of the railroad, is in violation of the constitutional provision that "every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title. "*

A

CTION on railroad aid bonds issued by a city. Defendant demurred and had judgment, and plaintiff appealed. The opinion states the facts.

W. B. Leigh, and Waelder & Upson, for appellant, cited and discussed San Antonio v. Jones, 28 Tex. 30; San Antonio v. Lane, 32 id. 405; San Antonio v. Gould, 34 id. 49; Tadlock v. Eccles, 20 id. 792; Sharp v. New York, 31 Barb. 572; Coburn v. Dodd, 14 Ind. 347; O'Leary v. County of Cook, 28 Ill. 534; People v. Lawrence, 36 Barb. 177; De Witt. San Francisco, 2 Cal. 299; Washington v. Page, 4 id. 338; Pierpont v. Crouch, 10 id. 315; Cooley's Const. Lim. 144, 146; Dillon on Mun. Corp., § 28; Chiles v. Drake, 2 Metc. (Ky.) 146; Oldham Turnpike Co. v. Brannon, id. 302; Mosier v. Hilton, 15 Barb. 657; Fletcher v. Oliver, 25 Ark. 289; Johnson v. Higgins, 3 Metc. (Ky.) 566; People v. Mahaney, 13 Mich. 481; Fireman's Association v. Lounsbury, 21 Ill. 511; Parkinson v. State, 14 Md. 184; Reed v. State, 12 Ind. 641; Blood v. Mercelliot, 53 Penn. St. 391; Bright v. McCullough, 27 Ind. 223; Robinson v. Bank of Darien, 18 Ga. 65; Pim v. Nicholson, 6 Ohio St. 176; Morrison v. Springer, 15 Iowa, 304; Adams v. Howe, 14 Mass. 340; Sharpless v. The Mayor, 21 Penn. 162; The People v. Draper, 15 N. Y. 543.

McLeary & Wurzbach, King, and Peeler & Fisher, for appellee.

ROBERTS, C. J. This suit was instituted in the District Court of Bexar county, by G. H. Giddings as adrinistrator of Emma Giddings, deceased, for the recovery of the amount of a bond and interest coupons attached, issued and delivered by the city of San Antonio to the "San Antonio and Mexican Gulf Railroad," dated March 1, 1852, the principal of said bond being one thousand dollars.

The plaintiff alleges in his petition that the issuance of the bond and coupons sued upon was "authorized by a vote of the electors of the city of San Antonio, taken in accordance with the provisions of 'An act to incorporate the San Antonio and Mexican Gulf Railroad,' approved September 5, 1850."

*See Nuendorff v. Duryea, 25 Am. Rep. 235 and note, 239.