State v. Matheson

• Decision Date: 10 April 1905
• Citation: 130 Iowa 440,103 N.W. 137
• Parties: STATE v. MATHESON.
• Court: Iowa Supreme Court

130 Iowa 440

103 N.W. 137

STATE

v.MATHESON.

Supreme Court of Iowa.

April 10, 1905.

Appeal from District Court, Pottawattamie County; J. H. Preston, Judge.

Defendant was indicted and convicted for an assault with intent to commit murder, and sentenced to imprisonment in the penitentiary for eight years at hard labor, and from this sentence he appeals. Reversed.J. P. Organ, Harl & Tinley, and Flickinger Bros., for appellant.

Charles W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

McCLAIN, J.

At a conference which was being held in a secluded place between the defendant, a young man 19 years of age, and one, Williams, in regard to the stealing of some jewelry from the latter's store, at which one Baker, who was an officer, and Henry Matheson, the father of the defendant, and one other person, were present, a revolver which defendant had been carrying in his hip pocket, and which defendant was at the time taking from his pocket, was discharged, and Baker was wounded as a result of the discharge. The claim on behalf of defendant was that the revolver was accidentally discharged whilst he was attempting to extract it from his pocket, while Baker testified that it was intentionally aimed and discharged at him by the defendant.

1. The ground on which defendant stood was a little lower than that on which Baker stood, according to some of the witnesses; and it was a material inquiry whether the ball, which entered Baker's body at the margin of the ribs, about an inch to the right of the median line, took an upward or a downward course, for an upward course would indicate that the revolver was discharged while it was near the level of defendant's hip, and would tend to contradict the testimony of Baker that defendant aimed the revolver at him before it was fired, while a downward course would be consistent with Baker's account of what took place. The physician who probed for the bullet did not find it, but one Greenland, who testified that he was an electrical engineer, and familiar with the use of the X–ray machine, produced an X–ray photograph, or “radiograph,” as it is called in his testimony, which he testified was produced by subjecting the middle portion of Baker's body to the proper process for taking a photograph of the interior thereof by means of the X–ray machine, which photograph showed the vertebræ of the spinal column in the lumbar region, and appeared to show a dark object in the shape of a bullet close to one of the vertebræ. One McRae, a physician, by means of a comparison of the spot where the bullet entered Baker's body with the location of the supposed bullet, as shown by the radiograph, testified that the course of the bullet was downward. To the admission of the radiograph in evidence the defendant objected, and the overruling of his objection is one of the alleged errors relied upon for reversal.

The principal objection urged to the introduction of the radiograph, and the use of it by the witness McRae for the purpose of determining the course of the bullet, is that it was not sufficiently identified as a representation of anything about which there was evidence before the jury. The theory of counsel seems to be that, in general, a photograph is admissible in evidence only as a representation of something which a witness testifies to as of his own knowledge, resulting from observation, and that as no witness testified to, or could testify to, the presence of a bullet lodged in Baker's body, near the spinal column, by any direct observation, the radiograph showing what appeared to be a bullet in that locality was not admissible.

It is true that photographs, like maps, diagrams, or other methods of representing visually the facts to which a witness directly testifies, or which might be directly observed by the jury if they had an opportunity to make inspection, have been held to be admissible simply as constituting such a representation. Reddin v. Gates, 52 Iowa, 210, 2 N. W. 1079;Ruloff v. People, 45 N. Y. 213, 224;Cowley v. People, 83 N. Y. 464, 476, 38 Am. Rep. 464;People v. Fish, 125 N. Y. 136, 26 N. E. 319;Baustian v. Young, 152 Mo. 317, 53 S. W. 921, 75 Am. St. Rep. 462;Dederichs v. Salt Lake City R. Co. (Utah) 46 Pac. 656, 35 L. R. A. 802;Hampton v. Norfolk & W. R. Co. (N. C.) 27 S. E. 96, 35 L. R. A. 808. But the court takes judicial notice of the fact that by the ordinary photographic process a representation may be secured, sufficiently truthful and reliable to be considered as evidence with reference to objects which are in a condition to be thus photographed, without regard to whether they have been actually observed by any witness or not. As is said in Luke v. Calhoun County, 52 Ala. 115: “A court cannot refuse to take judicial cognizance that photography is the art [of] producing fac similes or representations of objects by the action of light on a prepared surface. As such, it has been so long recognized; and the mechanical and chemical process employed, and the scientific principles on which it is based, are so generally known that it would be vain for a court to decline cognizance of it.” And in Udderzook v. Commonwealth, 76 Pa. 340, 353, it is said that photography “has become a customary and common mode of taking and preserving views, as well as likenesses 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.” Therefore photographs are admissible not merely as a diagram or map representing things to which the witness testifies from his independent observation, but as direct evidence of things which have not been directly described by a witness as having come within his observation. Thus in Barker v. Town of Perry, 67 Iowa, 146, 25 N. W. 100, this court has said that, “wherever it is important that the locus in quo or any object be described to a jury, it is competent to introduce a photographic view.” And in that case it was held not improper to allow the jury to take with them to the jury room a photograph which had been introduced in evidence, and make use of a magnifying glass in order to minutely observe those things which could be seen in the photograph by means of such glass. The magnifying glass was permitted in this case on the same principle as its use was allowed in Frank v. Chemical National Bank, 45 N. Y. Super. Ct. 452, and Kannon v. Galloway, 2 Baxt. 230––for the purpose of discovering whether the signature to a written instrument introduced in evidence was genuine; and it is plain that the photograph was recognized as an independent instrument of evidence, the true significance of which might be discovered by means of the glass. And as further illustrations of the use of photographs as independent instruments of evidence, when properly identified, see, Omaha Southern R. Co. v. Beeson, 36 Neb. 364, 54 N. W. 557. And it is apparently on the same principle that, in the comparison of signatures or purported signatures, enlarged photographic copies are admitted. Luco v. United States, 23 How. 515, 531, 16 L. Ed. 545;Marcy v. Barnes, 16 Gray, 161, 77 Am. Dec. 405;Howard v. Illinois Trust & Savings Bank, 189 Ill. 568, 59 N. E. 1106.

The process of X–ray photography is now as well established as a recognized method of securing a reliable representation of the bones of the human body, although they are hidden from direct view by the surrounding flesh, and of metallic or other solid substances which may be imbedded in the flesh, as was photography as a means of securing a representation of things which might be directly observed by the unaided eye at the time when photography was first given judicial sanction as a means of disclosing facts of observation; and for that purpose X–ray photographs, or sciagraphs, or radiographs, as they are variously called, have been held admissible on the same basis as photographs. Bruce v. Beall, 99 Tenn. 303, 41 S. W. 445;Miller v. Dumon, 24 Wash. 648, 64 Pac. 804;Chicago & Joliet Elec. R. Co. v. Spence (Ill.) 72 N. E. 796;Carlson v. Benton (Neb.) 92 N. W. 600;City of Geneva v. Burnett (Neb.) 91 N. W. 275, 58 L. R. A. 287; 1 Wigmore, Evidence, §§ 795–797. As is said in Mauch v. City of Hartford, 112 Wis. 40, 87 N. W. 816: “It is the duty of courts to use every means for discovering the truth reasonably calculated to aid in that regard. In the performance of that duty, every new discovery, when it shall have passed beyond the experimental stage, must necessarily be treated as a new aid in the administration of justice in the field covered by it. In that view, courts have shown no hesitation, in proper cases, in availing themselves of the art of photography by the X–ray process.”

We have no difficulty, therefore, in holding that the radiograph admitted in evidence in this case, after proof that it was taken by a competent person, was admissible to show that there was in the body of Baker, at the time it was taken, some hard substance, in the shape of a bullet, near the spinal column. It is objected, however, that there is no evidence that this object which is represented in the radiograph was a bullet. True enough, but it was proper for the jury to take the evidence for what it was worth, as indicating that something in the shape of a bullet was lodged in Baker's body. Whether it was in fact a bullet, they must determine, just as they would have been required to determine the fact if the witness had testified that he saw something the size and shape of a bullet. That is all he could have told simply by looking at it if it had been exposed to view.

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