put in the originals. The counsel replied that the court of common pleas, in a case of this kind, had decided that where it was set up that a paper was forgery, a photographic copy of it could be received in evidence. Judge Blatchford: "I am not bound by the decision of the court of common pleas, and I shall not concur in its decision. To admit in evidence a photographic copy of a pay-roll would be acting contrary to well established rules of evidence-in fact, it would be monstrous."

With the consent of defendant, a photograph representing the place where the homicide was committed, was put in evidence, W, a witness for the prosecution, who was present when the photograph was taken and who had seen part of the affair from a window near by, placed three persons in the highway to represent the positions, which, according to his recollection the deceased, the defendant and another person present at the homicide occupied. W's testimony as to that fact was received under objection and exception, and it was held to be no error. People v. Jackson, 111 N. Y. 362.

Where the party introducing a photograph in evidence verifies the process by which it was taken by showing that the result obtained fairly resembles the object photographed, the picture becomes competent evidence in the case, provided there is proper occasion for the introduction of any view of the person or premises and the modern cases generally support this view, nor are the cases adverse to these views. Ruloff v. People, 45 N. Y. 213; Udderzook v. Com. 76 Pa. 340; Cowley v. People, 83 N. Y. 465, 38 Am. Rep. 464.

And in another case, when the genuine signature and the disputed signature were both brought into court, magnified photographic copies of each, together with the originals, were submitted to the inspection of the jury, and it was held not to have been error. Marcy v. Barnes, 16 Gray, 162; Cozzens v. Higgins, 1 Abb. App. Dec. 451; Church v. Milwaukee, 31 Wis. 512; Hollenbeck v. Rowley, 8 Allen, 473; Com. v. Coe, 115 Mass. 481; Walker v. Curtis, 116 Mass. 98; Ruloff v. People, supra; Cowley v. People, supra; Robinson v. Mandell, 3 Cliff. 169; Taylor Will Case, 10 Abb. Pr. N. S. 300; Tome v. Parkersburg R. Co. 39 Md. 36, 17 Am. Rep. 540. See Daly v. Maguire, 6 Blatchf. 137; Re Foster's Will, 34 Mich. 21; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Re Stephens, L. R. 9 C. P. 187;

Leathers v. Salvor Wrecking & Transp. Co. 2 Woods, C. C. 682; Luco v. United States, 64 U. S. 23 How. 515, 16 L. ed. 545; Reddin v. Gates, 52 Iowa, 210; Ordway v. Haynes, 50 N. H. 159; Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538; Durst v. Masters, L. R. 1 Prob. Div. 373.

The general rule is without contradiction that where the photograph is shown to be a faithful representation of whatever it purports to reproduce it is admissible, as an appropriate aid to a jury in applying the evidence; and this is equally true whether it relates to persons, things or places.

For further exposition of this subject see 2 Rice, Civil Evidence, chap. LII. p. 1163, et seq.

CHAPTER XVIII.

ORDER OF PROOF.

104. Order of Proof Largely Discretionary. 105. General Rule as to the Prosecution.

106. Usual Order of Proof in Criminal Cases. 107. Abuse of Discretion as Subject of Review.

108. Rule as to New Evidence.

109. Pertinent Evidence may be Received at any Time. 110. Views of Judge Rosevelt.

111. Conditional Reception of Evidence on Promise to Show Relevancy.

112. Continuance Granted when.

§ 104. Order of Proof Largely Discretionary. In the trial of both civil and criminal causes, the order in which the testimony shall be admitted is one of practice rather than of strict right, and may, in the discretion of the court, be varied to meet the exigencies of a given case, without error being predicable thereon, unless it is manifest that the variance has operated to surprise, or in some way work a legal disadvantage to the excepting party. Archb. Crim. Pr. & Pl. 576; Pingry v. Washburn, 1 Aik. (Vt.) 264; Clayes v. Ferris, 10 Vt. 112; Goss v. Turner, 21 Vt. 437; 1 Bishop, Crim. Proc. § 966.

1

§ 105. General Rule as to the Prosecution. The courts in the trial of criminal causes have generally, but not universally required the prosecution to put in its whole case in the opening, and have confined it in the close to testimony which tended to rebut the testimony of the respondent. We apprehend that this practice, so far as it varies in this respect from that which obtains in civil cases, has been adopted rather out of tenderness to the respondent, and that before entering on his defense he might be fully apprised of the case which he had to meet, than because of right he could demand it. But in no state, so far as we are aware, has it ever been pushed to the extreme of rejecting in the close, testimony which legitimately tended to weaken the effect of the testimony adduced by the respondent because it also tended to strengthen and confirm the testimony introduced in the opening

by the prosecution. Pingry v. Washburn, 1 Aik. (Vt.) 264; Clayes v. Ferris, 10 Vt. 112; Goss v. Turner, 21 Vt. 437; 1 Saunders, Pl. & Ev. 1100; Stephens, N. P. 1802; Roscoe, Crim. Ev. 79; 1 Stark. Ev. 151, note k; Dave v. State, 22 Ala. 23; Kalle v. People, 4 Park. Crim. Rep. 592; Sartorious v. State, 24 Miss. 602; Mary v. State, 5 Mo. 71; 2 Phil. Ev. 17; 2 Russell, Crimes, 588; Rees v. Smith, 2 Stark. 29; Crerar v. Sodo, 1 Mood. & M. 85; State v. Bridgeman, 49 Vt. 202, 24 Am. Rep. 124; State v. Main, 31 Conn. 572; 1 Best, Crim. Proc. § 966.

§ 106. Usual Order of Proof in Criminal Cases.-The jury having been impaneled and sworn, the trial must proceed in the following order:

1. The district attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment; 2. The defendant or his counsel may then open his defense, and offer his evidence in support thereof;

3. The parties may then, respectively, offer rebutting testimony, but the court, for good reason, in furtherance of justice, may permit them to offer evidence upon their original case;

4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury;

5. The court must then charge the jury.

Generally in criminal prosecutions it may be said that the order in which the proof is presented to the consideration of the jury is in no sense arbitrary and the variant circumstances of each particular case require more or less latitude in their application. People v. Wilson, 55 Mich. 506. See Spies v. People, 122 Ill. 1, 9 Crim. L. Mag. 829, 3 Am. St. Rep. 320, 6 Am. Crim. Rep. 570. The Michigan supreme court has repeatedly held, that the admission of evidence out of strict order is in the discretion of the court. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99; Danielson v. Dyckman, 26 Mich. 169; Somerville v. Richards, 37 Mich. 299; Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728; People v. Wilson, 55 Mich. 506. See also State v. Daubert, 42 Mo. 242; State v. Linney, 52 Mo. 40; State v. Beuchler, 103 Mo. 203, as expository of the Missouri rule.

The foregoing text renders any further comment unnecessary as to the arbitrary control accorded the presiding judge in matters

relating to the order of proof. The United States circuit court has held that it is within the discretion of the trial court to grant an adjournment for the purpose of allowing further testimony to be introduced; and this, after one side has rested its case. United States v. Noelke, 17 Blatchf. 555. See also State v. Manuel, 64 N. C. 601; Winn v. State, 43 Ark. 151; People v. Rector, 19 Wend. 569; State v. Harris, 63 N. C. 1. The discretion however, that is reposed in the presiding judge, if palpably abused may be made the subject of inquiry in the appellate court, and when clearly prejudicial to the accused or granted with reckless improvidence, will constitute reversible error. See Meyer v. Cullen, 54 N. Y. 392.

Even after the testimony in a case has closed, it is discretionary with the court whether to open the case or not, to receive additional evidence, and the decision is not reviewable. Caldwell v. New Jersey S. B. Co. 47 N. Y. 282.

§ 107. Abuse of Discretion as Subject of Review.-An abuse of judicial discretion has always been, and always ought to be, the subject of review in some form.

An abuse of discretion, in a legal sense, does not by any means imply that the judge committing it was actuated by an improper motive. It is quite likely to happen in the hurry of a trial at circuit; and without careful consideration a plain error of law may be committed, resulting to the prejudice of a party, which the judge committing the error would, upon further reflection, be most happy to correct if he could have the opportunity. In such case there is no doubt but that an appellate court will do justice. Meyer v. Cullen, 54 N. Y. 392.

§ 108. Rule as to New Evidence.-It is entirely within the discretion of the trial court to permit a party to introduce new evidence to maintain the issue, or to re-examine a witness on his part as to transactions previously testified to; and this is true although the evidence is not strictly rebutting. Marshall v. Davies, 78 N. Y. 414; Huntsman v. Nichols, 116 Mass. 521; Gaines v. Com. 50 Pa. 319; Dailey v. Grimes, 27 Md. 440; Day v. Moore, 13 Gray, 522; Dozier v. Jerman, 30 Mo. 216; Walker v. Walker, 14 Ga. 242.

§ 109. Pertinent Evidence may be Received at any Time.— In this connection it must be borne in mind, that the order of proof and, indeed, the whole conduct of the trial as relates to the