Hart v. State. evidence in themselves, but was overruled in other respects, and the witness was permitted to identify the articles; to state that they were the clothing and rug worn and used by deceased on the day and at the time of the shooting, and to exhibit to the jury in what part of each of the articles the bullets had penetrated, and in which the holes were to be seen. Several objections were and are urged to this testimony, the principal ones being: "Because such testimony cannot be made a part of the record herein, and is not of such a character as can be incorporated in the record for the Court of Appeals," and "Because it proved nothing, but was calculated to prejudice the jury, and was in their minds evidence put before them, that they as men could not easily discard." These objections are almost invariably urged whenever the State seeks to avail itself of this character of evidence, and doubtless they spring from certain dicta to be found in Smith v. State, 42 Tex. 448. Is it true, or is it a standard test or even a test at all, that the legality and admissibility of evidence depends upon the fact that it must be such as can and must be incorporated into and brought up with the record? We know of no such rule announced by any standard work on the law of evidence. If it be true, then the identification, the pointing out of a defendant in court, is not legitimate or admissible, because he cannot be sent up here with the record." A witness's countenance, tone of voice, mode and manner of expression, and general demeanor on the stand oftentimes influence the jury as much in estimating the weight they give and attach to his testimony as the words he utters, and "yet they cannot be sent up with the record," though they are fit subjects to be observed by the jury in connection with his testimony, and it is their duty to consider them. in passing upon his testimony. How they have impressed the jury and influenced their verdict are facts known only to themselves, facts whieh must necessarily be unknown to the defendant, to the trial court, and to this court, save as they may be manifested in the verdict, because they cannot be written in the record; and yet they are and always have been the best and most legitimate sources from which a correct estimate of the value of oral evidence is drawn. Our own rules do not require that such matters of proof be incorporated into the statement of facts. See Rules for District Courts, 71 et seq. A juror, to be competent and fit for jury service, should not be defective in the organs of seeing any more than in his organs of feeling or hearing (Code Crim. Proc., art. 636, sub-div. 5), and 66 Hart v. State. he often sees, and rightly sees and acts upon, many things "which cannot be incorporated in the record." "Evidence includes the reproduction before the determining tribunal of facts either notorious or verified in open court, * * and when not matter of notoriety, recognized as such by the court, is adduced only by the parties through witnesses, documents or inspection." Whart. Crim. Ev., § 3. Whilst it is true "that no matter of fact, that is to say, no actual phenomenon of external nature, can in any possible state of human knowledge be a matter of demonstration," it is none the less true that the nearer we approximate demonstration by evidence the better and more satisfactory and convincing that evidence is to the human mind. The doubting Thomas of scripture could not be made to believe that the resurrected Saviour was indeed the dead and crucified Jesus, until permitted to put his fingers into the nail holes shown in the holy hands, and thrust his own hand into the wounded side whence the spear of the Roman soldier let out the life blood of the dying Lord. In a recent case in England, not at present accessible, the defendant was on trial for selling grain by a false measure. To solve the question of his guilt the court had the supposed false measure and a standard measure brought before the jury, and the grain actually measured from the one into the other in the presence of the jury. Will any one pretend to say that this was not the best and most satisfactory evidence to the minds of the jury which could possibly be adduced of the fact in issue before them? And could not the fact be sufficiently stated in the record so as to apprise this court fully of the nature and character of the evidence and mode of proof upon which the verdict was founded? Clearly so, we think. In a recent case in Georgia it was held that a pistol used in the commission of a homicide could be and was properly submitted to the jury for inspection. Wynne v. State, 56 Ga. 113. Mr. Wharton, in his work on Homicide, says: "Dress, independently of the questions to be hereafter noticed, adds often an important element of indicatory proof. Thus in a case cited by Taylor there were two cuts in a shirt produced in evidence. These cuts were near each other and precisely similar, leading to the inference that the knife producing them went through two folds of the shirt. From this however it followed that the shirt could not have been on the deceased at the time of the wounding, since if it had been there would have been three, not two cuts. So on the Hart v. State. trial of Stokes for the murder of Fisk in 1873, the condition of the deceased's cloak immediately after the wound was admitted to show the force and direction of the shot. Nor is it necessary, it has been ruled, that the garments in question should be themselves produced. Their condition can be described by witnesses without such production, if their non-production is satisfactorily explained. But if practicable, they should be secured and brought into court, though before admitting them there should be evidence that they have not been tampered with since the killing." Whart. on Homicide (2d ed.), § 674. But the identical question before us came up in the case of King v. State, 13 Tex. Ct. App. 277, and it was said: "Upon the trial of this case the State, over defendant's objection, was permitted to introduce and exhibit to the jury a coat and pair of pants which were proved to have been on the person of deceased at the time he was shot. Testimony of this character is oftentimes pertinent, material and admissible. Hubby v. State, 8 Tex. Ct. App. 597; Early v. State, 9 id. 485." See also White & Wilson's Tex. Dig., § 1307. In the light of these authorities the clothing and buggy rug of Skinner would have been perfectly legitimate and admissible as evidence before the jury, though they could not have been incorporated into the record, and though it might have been impossible for us to know here, beyond their verdict, to what extent they influenced or affected the jury. If legitimate and competent evidence, the State had the right to introduce them, no matter how the jury might be affected by them. [Other matters omitted. But on another point] Reversed and remanded. NOTE BY THE REPORTER. -Practical Tests and Experiments in Evidence. As to photographs, etc., see note, 26 Am. Rep. 319; Cowley v. People, 83 N. Y. 464; 38 Am. Rep. 464, and note, 474. As to exhibition of a child in court on the question of parentage, see People v. Carney, 29 Hun, 47; State v. Smith, 54 Iowa, 104; s. c., 37 Am. Rep. 192 State v. Danforth, 48 Iowa, 43; s. c., 30 Am. Rep. 387; Pettie v. Howe, 4 Thomp. & Cook, 85. See also Ihinger v. State, 53 Ind. 251. As to compelling a prisoner to furnish evidence of his identity by putting his foot in a track or exposing his person, see State v. Graham, 74 N. C. 646; s. c., 21 Am. Rep. 493: Walker v. State, 7 Tex. Ct. App. 245; s. c., 32 Am. Rep. 595; Stokes v. State, 5 Baxt. 619; s. c., 32 Am. Rep. 595; State v. Sanders, 68 Mo. 202; s. c., 30 Am. Rep. 782; State v. Garrett, 71 N. C. 85; s. c., 17 Am. Rep. 1; State v. Ah Chuey, 14 Nev. 79; s. c., 33 Am. Rep. 530; Hart v. State. Blackwell v. State, 67 Ga. 76: s. c., 44 Am. Rep. 717; Campbell v. State, 55 Ala. 80. As to compelling a person suing for personal injuries, to submit to a physical examination, see Schroeder v. C. R. I. & P. R. Co., 47 Iowa, 375; Roberts v. Ogdensburgh, etc., R. Co., 29 Hun, 154; White v. Milwaukee City R. Co., Wisconsin Supreme Court, 29 Cent. L. J. 11. On a question of the quality of singing, witnesses were allowed to imitate the singing in question. State v. Linkham, 69 N. C. 214. s. c., 12 Am. Rep. 645. On a murder trial the bones of the deceased may be exhibited in court to explain the relative attitude and position of deceased and defendant at the time. State v. Wiemers, 66 Mo. 13. In a case of homicide, the jury were permitted to inspect the horse on which the deceased was riding at the time he received his death wounds, and to make experiments with a view of ascertaining whether the wounds could have been inflicted by a man standing on the ground. Dillard v. State, 58 Miss. 368. On the trial of an indictment for rape, charged to have been committed in a wheat field, the woman having testified that the defendant had dragged her over the fence, evidence of experiments made in attempting to lift girls over this fence offered in contradiction was excluded. Ulrich v. People, 39 Mich, 245. But evidence of experiments by shooting at short range with the pistol in question at substances like the clothing worn by the deceased when killed, was admitted in Sullivan v. Commonwealth, 93 Penn. St. 284. In an action on a life insurance policy, the insurers asking for the exhumation of the body in order to show that the insured had suffered a fracture of the skull. It was intimated the request would have been granted if made within a reasonable time. Grangers' Life Ins. Co. v. Brown, 57 Miss. 308 : s. C., 34 Am. Rep. 446. Where a cashier undertook to identify a masked burglar by his voice, it was held incompetent for the defendant, not under oath, to prove what was his usual and natural voice by using his voice in the court room. Com. v Scott, 123 Mass. 222; s. c., 25 Am. Rep. 81. On a question of handwriting, the defendant may not write in court and submit the writing to the jury for comparison, Com. v. Allen, 128 Mass. 46 ; s. c. 35 Am. Rep. 356. On the question whether in a photograph of several persons, sitting in a row, the outer images would be as vivid and correct as those in the center, the Supreme Court of the United States caused themselves to be photographed on the bench in open court. In Evarts v. Middlebury, 53 Vt. 626, on a question of horse-shoeing, the shoes were allowed to be exhibited. On the trial of an indictment for carrying on a boxing not to be error to rule out the gloves offered in evidence. 56 Vt. 445 s. c., 48 Am. Rep. 801. match, it was held State v. Burnham, In Innis v. State, 42 Ga. 477, a witness having testified that he committed Hart v State. to memory part of the play of Punch and Judy while certain facts, to which he had sworn, were occurring, the court allowed counsel on cross-examination to require him to repeat the dialogue referred to. In the recent English case of Belt v. Lawes, the plaintiff, a sculptor, sued the Vanity Fair newspaper for libel in alleging that he is no artist, and that his pretended works are made by talented subordinates. The Law Times says · "This case is probably the first in which it has been suggested that an artist whose skill is impugned should prove it by practical operations in court. The inconvenient results which would probably flow from such a practice are obvious. The practical operation would not be recorded, although it might produce different impressions upon different minds. The operator and his friends might consider the test conclusive in his favor; another view might be taken by the other side. How move against a verdict based on this operation on the ground that it was against the weight of the evidence? If the test is to be applied to a sculptor, why not to a prima donna? We have known of a case in which an artiste sought damages for wrongful dismissal, and the justification was that she could not sing. Would a judge have allowed her to sing to the jury? If so, the rule might be extended without limit, with consequences terrible to contemplate." The "suggestion" in the case in question came from the plaintiff on cross-examination, with the observation, that will end the case." Hereupon the following dialogue ensued · Mr. RUSSELL- No, indeed, Mr. Belt, it will not. Baron HUDDLESTON If the jury express a wish to see Mr. Belt put to the test, I shall certainly not prevent it. (Applause in court, which was at once checked.) Sir H. GIFFARD-I shall certainly ask for it, my lord. Mr. RUSSELL-And I shall not object at the proper stage of these proceedings." Subsequently, at Carnarvon, in an action for personal injuries against a railway company, the plaintiff's counsel asked him to allow the plaintiff to walk across the court before the jury, with a view to convince them that his lameness was not assumed. The same learned judge declined to allow this test, and said "that ever since he had been reported to have said, during the hear ing of the case of Belt v. Lawes, that he should allow the plaintiff to make a bust of himself (Baron Huddleston) in court, he had been pestered to allow all kinds of tests to be gone through in court before the jury; and he wished it to be known that the press had entirely misrepresented him in this matter, and that he had never indicated that he should allow such a course to be taken." The difference between this test of skill and the offer in the railway case is manifest, for the jury could not tell but that the plaintiff then was shamming lameness, while there could be no question if he made a bust. The London Law Journal says: The practice of experimenting before judges is likely to receive a check, if it is often followed by such results as happened in a case before Mr. Justice PEARSON last week. Two German firms were disputing the exclusive right in certain patents for improvements ‘in the production of coloring matters suitable for dyeing and printing.'. The conten tion of the defendants was that the chemical means described in the specifica tions were impossible, because if the oxyazo naphthalinoine were to be united with the 'fuming sulphuric acid' of the strength therein described, it VOL. XLIX — 25 |