Sisk v. State

• Decision Date: 20 November 1964
• Docket Number: No. 55,55
• Citation: 204 A.2d 684,236 Md. 589
• Court: Maryland Court of Appeals
• Parties: James F. SISK v. STATE of Maryland.

Page 589

236 Md. 589

204 A.2d 684

James F. SISK v. STATE of Maryland.

No. 55.

Court of Appeals of Maryland.

Nov. 20, 1964.

John Paul Rogers, Baltimore, for appellant.

Stuart H. Rome, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell and Alfred J. O'Ferrall, III, State's Atty., and Asst. State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

PRESCOTT, Judge.

This is appellant's second attempt to offset his conviction of obtaining money by false pretenses under Code (1957), Article 27, Section 140. In his first appeal, Sisk v. State, 232 Md. 155, 192 A.2d 108, we held that the Regiscope photograph, which convicted him, had not been properly authenticated, and remanded for a new trial.

Although State's Exhibit No. 1, a check, ¹ was admitted into evidence over appellant's objection, the case turns upon the admissibility, vel non, of a Regiscope photograph, State's Exhibit No. 2, and the negative from which it was produced, State's Exhibit No. 3A.

Appellant challenges the admissibility of these Exhibits, and the sufficiency of the evidence even if the exhibits were admissible.

There can be little doubt that photographs are, and have been for many years, an important and valuable source of evidence in the Courts. It should be borne in mind that Photographs, when properly authenticated, are as a general rule held to be admissible under two distinct rules: one, to illustrate a witness' testimony (in instances of this nature the photographs have been analogized to maps and diagrams); ² and two, as 'mute,' 'silent,' or 'dumb' independent photographic witnesses. ³ McKelvey Evidence, (5th ed.) §§ 378-390 Scott, Photographic Evidence §§ 602, 603; McCormick, Evidence (1954) § 181; III Wigmore, Evidence (3rd ed., 1962 Pocket Supp. § 792 a--apparently a change from the original text); 20 Am.Jur., Evidence, §§ 727, 728; Gardner, 'The Camera Goes to Court,' 24 N.C.L.Rev. 233; People v. Bowley, 59 Cal.App.2d 855, 31 Cal.Rptr. 471, 382 P.2d 591; State v. Goyet, 120 Vt. 12, 132 A.2d 623; Hancock v. State, 209 Miss. 523, 47 So.2d 833; Watkins v. Reinhart, 243 Ala. 243, 9 So.2d 113; Hartley v. A. I. Rodd Lumber Co., 282 Mich. 652, 276 N.W. 712; King v. State, 108 Neb. 428, 187 N.W. 934; Franklin v. State, 69 Ga. 36; People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792.

In the Bowley case (1963), supra, the Supreme Court of California reviewed and analysed the authorities in some detail. It quoted from Garner, op. cit., in which it was stated that, 'Photographs may, under proper safeguards, not only be used to illustrate testimony, but also as photographic or silent witnesses who speak for themselves * * *. A picture taken with adequate equipment under proper conditions by a skilled photographer is itself substantive evidence to be weighed by the jury.' The Court went on and held 'that a photograph may, in a proper case, by admitted into evidence not merely as illustrated testimony of a human witness but as probative evidence in itself of what it shows.'

Of course, a vast majority of the cases involving photographs deal with 'illustrative' photographs, as an examination of the previous decisions of this Court will disclose. In fact, this seems to be the first time that we have been called upon to consider, specifically, the second rule mentioned above. The learned author in Gardner, op. cit., points out that in considering the admissibility of photographs, there are always two factors involved: competency, and materiality. As the statement of facts will shortly disclose that the Regiscope photograph was, obviously, material to the issues involved, we shall proceed to a consideration of its competency, i. e., whether the State properly authenticated it by establishing that the photograph is a reasonably accurate and honest representation (photographs are seldom, if ever, completely accurate in every detail) of the facts it purports to represent.

We do not here set forth in detail the evidence in the previous trial relative to testimonial sponsorship of the photograph; we did so in the opinion in the former appeal. We now state what this evidence was in the second trial (as well as the evidence generally, because its sufficiency for conviction is challenged); and an examination thereof will disclose the crucial differences between it and that offered at the first trial.

Stanley E. Fleming, Merchandise Manager for Montgomery Ward & Co. at its Monroe Street store, identified his initials on the check, which approved its cashing by the cashier. He explained that a check drawn 'in this amount' requires one of the supervising people in the store to identify the person by some identification that he has, and assuming responsibility for the cashing of the check. James F. McNulty, an official of the bank, stated the check was drawn on the Maryland Trust Company on an account that had been closed since 1955. Charles A. Neubert, Jr., testified that he had never seen the check before presentation of it to him at the trial, and the endorsement of his name and address on the back thereof was not his 'signature'; he was not in Ward's store on the date the check was cashed; he had never had any connection with Talbot & Hanson, Inc.; sometime prior to August 1, 1962, his card case, containing some 10 to 12 credit and membership cards and his driving license, 'was missing' from the glove compartment of his car.

William Shraver, Chief Investigator for Montgomery Ward, was then called. He stated that he received the check from the Chief Cashier after it was returned unpaid; that he went to the cashier's cage where there is located a Regiscope camera and removed the film therefrom and sent it, by mail, to the 'Regiscope Company' in Fairfax, Va., with a description of the check and the Bates number thereon, and a request for a picture. The witness further testified that he had taken a course of instruction on the operational procedure of the Regiscope Company, which included a complete explanation of the camera and its functions and the company's procedures for developing and storing the film, etc., so that he was 'thoroughly familiar with their operation.' The Bates numbering machine is one so designed that each time the machine is stamped the number printed by it is changed one digit. The number is printed in the center of the top of the check and in the instant case is 136278. As requested by the witness, the 'pictures' were returned to him by mail. The picture, which was later introduced into evidence, was 'a complete photograph of a transaction of cashing the check. The bottom part of the photograph is a picture of the person cashing the check, and the top part * * * is the check and the identification used to cash the check.' The Regiscope pictures are taken with a camera which contains two lenses; one points straight forward in the direction of the person cashing the check; the other points down in the direction where the check and the identification are laid on the base of the camera. The camera is operated by a single lever, which, when pushed, takes two pictures, simultaneously, on the same negative. The picture, State's Exhibit 2, contains a picture of the check involved herein, which had been previously identified. The camera has a fixed focus; so the farther away a person is from the front of the camera, the smaller a person appears upon the picture. From his experience, it was witness' opinion that appellant was against the counter just outside the cage window when the picture was taken. On September 28, 1962, the witness had a conversation 128, 1962, the witness had a conversation with the appellant. After looking at the picture, State's Exhibit 2, appellant stated that the person pictured thereon was he; that he had cashed a check 'at Montgomery Ward that day,' but not the check on the picture; and that he did not care to tell 'what the other check was.'

Upon cross examination, the witness...