Udderzook v. Commonwealth , 2 Foster 214 ( 1874 )

Chief Justice Agnew

delivered the opinion of the court, July 2d 1874.

This is indeed a strange case, a combination by two to cheat insurance companies, and a murder of one by the other to reap the fruit of the fraud. Winfield Scott Goss, an inhabitant of Baltimore, had insured his life to the amount of $25,000. He was last seen at his shop, on the York road, a short distance from Baltimore, on the evening of the 2d of February 1872, in company with William E. Udderzook, his brother-in-law,* the prisoner, and a young man living near. They left him to go to the house of the young man’s father.

In a short time the shop was discovered to be on fire. After it had burned down, a body was drawn out of the fire, supposed to be that of Goss. Claims were made upon the insurance companies, the prisoner being active in prosecuting them. On the 30th of June 1873, the prisoner and a stranger, a man identified as Alexander 0. Wilson, appeared at Jennerville, in Chester county, this state, and remained over night and the next day. In the evening, July 1st, the prisoner and this stranger left Jennerville together in a buggy. Next day, on being met and asked what had become of his companion, the prisoner said he had left him at Parkesburg. On the 11th of July, the body of a man, identified on the trial as W. S. Goss, or A. 0. Wilson, was found in Baer’s woods, about ten miles from Jennerville; the head and trunk buried in a shallow hole in one place and the arms and legs in another. The stranger who was with the prisoner at Jennerville, identified as A. 0. Wilson, was traced from place to place, living in retirement, from June 22d 1872, until within a day or two of the time when he appeared with the prisoner at Jennerville. During this interval this prisoner and Wilson were seen together several times, under circumstances indicating great intimacy and privacy. Wilson has not been seen or heard of since the evening of July 1st 1873, when he left Jennerville in company with the prisoner. The great question in the case was the identity of A. 0. Wilson as W. S. Goss. This was established by a variety of circumstances' and many witnesses, leaving"no doubt that Goss and Wilson were the same person, and that the body found in Baer’s woods was that of Goss.

All the bills of exceptions, except one, relate to this question of identity, the most material being those relating to the use of a photograph of Goss. This photograph, taken in Baltimore on the same plate with a gentleman named Langley, was clearly proved by him, and also by the artist who took it. Many objections were made to the use of this photograph, the chief being to the admission of it to identify Wilson as Goss; the prisoner’s counsel ■regarding this use of it as certainly incompetent. That a portrait ror a miniature, painted from life and proved to resemble the person, may be used to identify him cannot be doubted, though, like all other evidences of identity, it is open to disproof or doubt, and must be determined by the jury. There seems to be no reason why a photograph, proved to be taken from life and. to resemble the person photographed, should not fill the same measure of evidence. It is true the photographs we see are not the original likenesses; their lines are not traced by the hand of the artist, nor\ \¡an the artist be called to testify that he faithfully limned the porg trait. They are but paper copies taken from the original plate, called the negative, made sensitive by chemicals, and printed by the sunlight through the camera. It is the result of art, guided by certain principles of science.

In the case before us, such a photograph of the man Goss was presented to a witness who had never seen him, so far as he knew, but had seen a man known to him as Wilson. The purpose was to show that Goss and Wilson were one and the same person. It is evident that the competency of the evidence in such a case depends on the reliability of the photograph as a work of art, and this, in the case béfore us, in which no proof was made by experts of this reliability, must depend upon the judicial cognisance we may take of photographs as an established means of producing a likeness. 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 a common mode of taking and preserving views as well as the 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 cognisance of it as a proper means of producing correct likenesses,

But happily the proof of identity in this case is not dependent on the photograph alone. Letters from Wilson, identified as the\ hgfidwriting of Goss; a peculiar ring, belonging to Goss, worn! upon"fEé"linger "ox Wilson ; the recognition by Wilson of A. C.' Goss as his brother; packages addressed to A. C. Goss and envelopes bearing the marks of the firm with which W. S. Goss had been employed coming and going to and from Baltimore, and many other circumstances following up the man Wilson, leave no doubt of his identity as Goss, independently of the photograph. .

The objection to the proof of Goss’s habits of intoxication is equally untenable. True, the habit is common to many, and alone would have little weight. But habits are a means of identification, though with strength in proportion to their peculiarity. The weight of the habit was a matter for the jury.

It is unnecessary to follow the bills of exceptions in detail. They all relate to facts and circumstances bearing on the question of identity. If the bills of exception are many, they only-denote that the circumstances were numerous, and in this multiplication consists the strength of the proof.

They are the many links in a chain so long that it encircles the prisoner in a double fold. The questions put to G. P. Moore, A. H. Barintz and A. R. Carter were unobjectionable. Whether they really could not identify the dark and swollen face of the corpse, it was not for the court to decide; its weight belonged to the jury.

There was no error in permitting the jury, after their return into the court for further instructions, to take out with them, at their own request, the letters, check, due-bill and application for insurance papers which had been proved, read in evidence and commented on in the trial. The appearance, contents and handwriting of these documents were no doubt important, and to be inspected by the jury, who could not be expected to carry all these features in their minds. It is customary in murder cases to permit the jury to take out for their examination the' clothing worn by the deceased, exhibiting its condition, the rents made in it, the instrument of death, and all things proved and given in evidence bearing on the commission of the offence.

We discern no error in this record, and therefore affirm the sentence and judgment of the court below, and order this record to be remitted for execution.