Ferguson v. Com.
| Decision Date | 06 March 1972 |
| Citation | 187 S.E.2d 189,212 Va. 745 |
| Parties | Raymond Earl FERGUSON v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Edward W. Taylor, Richmond (Hundley, Taylor & Glass, Richmond, on brief), for plaintiff in error.
William P. Robinson, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
Raymond Earl Ferguson (Ferguson or defendant) was convicted by a jury in the trial court of forgery and uttering a forged instrument in the amount of $139.23. The court, in accordance with the verdicts, sentenced the defendant to terms of two and three years respectively in the state penitentiary.
The single issue here is whether the trial court erred by admitting into evidence, over the defendant's objection, a 'Regiscope' photograph purporting to be that of the defendant.
In the trial court the defendant objected to admission of the photograph on the ground that it had not been properly authenticated or verified. He argued there, as he does here, that a photograph, to be admitted in evidence, must be verified by a witness who has observed what the photograph purports to show and the witness must affirm that the photograph fairly depicts what he observed.
But this argument overlooks that
'Photographs, when properly authenticated, are, as a general rule, held to be admissible under two distinct rules--(1) to illustrate the testimony of a witness, and (2) as 'mute,' 'silent,' or 'dumb' independent photographic witnesses . . ..' 29 Am.Jur.2d, Evidence, § 785, p. 857.
We have long recognized and admitted photographs in the first category by holding that a photograph which is verified by the testimony of a witness as fairly representing what that witness has observed is admissible in evidence and that it need not be proved by the photographer who made it. State Farm Ins. Co. v. Futrell, 209 Va. 266, 163 S.E.2d 181 (1968); Lawson v. Darter, 157 Va. 284, 160 S.E. 74 (1931).
The facts disclosed by the record here, however, preclude the admission of the photograph in question under this theory for no witness testified that the photograph depicted a scene or event as witnessed by him.
The question, then, is whether we should also admit photographs of the second category, thereby adopting the so-called 'independent silent witness' theory of admissibility of photographs. We think that we should for, as is pointed out by Professor Wigmore,
'. . . With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the 'pictorial testimony' rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it,...
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...State v. Brown, 4 Or.App. 219, 475 P.2d 973 (1970); State v. Goyet, 120 Vt. 12, 132 A.2d 623 (1957); Ferguson v. Commonwealth, 212 Va. 745, 187 S.E.2d 189 (1972), cert. denied, 409 U.S. 861, 93 S.Ct. 150, 34 L.Ed.2d 108 (1972). Writers and commentators have likewise urged that photographs s......
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