competent." Harris, Identification, § 14, citing Davis v. State, 15 Tex. App. 594; Com. v. Hayes, 138 Mass. 186.

A defendant in a criminal case, not under oath as a witness, is not entitled to repeat something in the presence of the jury, to rebut evidence of a witness for the government, who testified that he identified the defendant by his voice. Com. v. Scott, 123 Mass. 222.

"Where the prisoner was in jail at the same time with the witness, though not in the same room, the witness testified to a conversation with the prisoner in which the prisoner confessed his guilt. He testified that he conversed with the accused through the soil pipes of the jail, and that he, the prisoner, confessed or admitted to him, the witness, that he was guilty of the charge on which he had been cast into prison, and that he knew the prisoner from his voice. The court upon this statement, with seeming reluctance, permitted it to go to the jury. Held, that it was competent to go to the jury, and that it was their province to con sider it, and give it such weight as it might be entitled to." Harris, Identification, § 554, citing Brown v. Com. 76 Pa. 319. Similarly in a recent Massachusetts case, the testimony of a witness, identifying the defendant by his voice, was held competent. The weight of it was for the jury, but it was properly submitted to them, to be considered in connection with other evidence of identity. Com. v. Williams, 105 Mass. 62; Com. v. Hayes, 138 Mass. 183.

In Com. v. Scott, supra, the ruling was to the effect that though identification might be established by means of the voice, experiments in the court room were inadmissible. In Rex v. Harrison, 12 How. St. Tr. 850, conviction rested in part on identification of voice. See as to identification by voice, 3 Whart. & S. Medical Jurisprudence (4th ed.) § 634; Whart. Crim. Ev. § 803, note. authorities upon

a. Telephonic Communications.-The the subject of the telephone in evidence, although meagre, voice but one sentiment. They one and all recognize the exextreme necessity of upholding the validity of telephonic communications to impress the characteristics of an admission, confession, statement or contract, and will admit the telephonic message in evidence; first where the parties are identified by means of the the voice; and secondly on the well recognized principle of agency. As regards identification, it may be said that notwithstanding the

metallic tone transmitted under certain atmospheric conditions it is matter of common notoriety that the human voice can be easily discerned, while as regards the ground of agency, it is very apparent that under well recognized rules governing that subject, the parties can be made to sustain the relation of principle and agent in most if not all the cases that arise. See Oskamp v. Gadsden, (Neb.) 17 L. R. A. 440; Missouri Pac. R. Co. v. Heidenheimer, 82 Tex. 195; Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep.

901.

"Courts of justice do not ignore the great improvements in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses, are facts of general scientific knowledge, of which the courts will take judicial notice as part of public contemporary history. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are admissible in evidence, as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be, in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. The ruling here announced is intended to determine merely the admissibility of such conversations in such circumstances, but not the effect of such evidence after its admission. It may be entitled, in each instance, to much or little weight, in the estimation of the triers of fact, according to their views of its credibility, and of the other testimony in support or in contradiction of it." Barclay, J., in Wolfe v. Missouri Pac. R. Co. 3 L. R. A. 539, 97 Mo. 473, 10 Am. St. Rep. 331.

From a trenchant criticism on this case by the editor of the New York Law Journal, we extract the following: "It is evident that a clerk in an ordinary shop, in apparent charge thereof, has a somewhat different authority to speak for his employer than an unknown person speaking over a telephone. In each case it is a question of presumptive evidence, but the presumption is very much stronger in the case of the clerk in the store than of the speaker over the telephone. The question as to where is the clerk is absolutely determined; as to where is the speaker over the telephone is only a matter of very great probability. On the second point, that an identification of the voice of the speaker through

the telephone is not necessary to make his declarations admissible, we think the court went to a very great extreme, and we doubt whether this ruling should be followed."

Evidence of an alleged conversation by telephone with one of the defendants, fully identified by his voice, is not to be excluded on the ground that it is not shown that the person conversed with was in fact one of the defendants, when that fact sufficiently appears by the testimony of another of the defendants. Davis v. Walter, 70 Iowa, 465.

The magnitude of the interests involved, the prominence of the parties under accusation, the national reputation of those indirectly involved, the eminence of the counsel employed and the exceptional ability of the presiding judge have invested the celebrated case of People v. Ward, 3 N. Y. Crim. Rep. 483, with unusual interest. Among the many incidents of that trial, hotly contested, arose over the admission in evidence of an alleged conversation over the wire between the then president of the Marine Bank and the defendant Ferdinand Ward. The Hon. Benjamin F. Tracey, subsequently of the New York court of appeals strenuously opposed the reception of this evidence, and the court in the person of the distinguished Mr. Justice Barrett promptly overruled the objection and admitted the conversation in evidence. This ruling has excited vehement controversy and elicited a great amount of comment, wise and otherwise; but the decision itself has never been shaken; and the contention that has surged around it, has failed to impair either its logic or its justice. Refining causists have seriously contended that a distinction should be recognized in criminal and civil cases; but such argument seems grounded in mere mawkish sentimentalism without even a granule of common sense in its support. See Rice, Civil Evidence, chap. 63, title "Telephone."

303. Dress as a Means of Identification.-"This is usually one of the first circumstances observed in the appearance of a person, and, where it is in any degree peculiar, furnishes important means of identification. It is the exterior clothing, however, including the hat, which ordinarily makes the first and most lasting impression upon the sense of sight. An overcoat, from its size, will soonest attract attention, and frequently is the only portion of the clothing which is distinctly visible. Hence it is constantly mentioned in testimony descriptive of the persons

of assailants and other offenders. The exterior clothing, like the size, is also frequently distinguishable by very imperfect or transient light. But, in one respect, this circumstance of dress is less reliable than other observed appearances; it being frequently assumed for the very purpose of disguise, and laid aside or destroyed after the crime has been perpetrated. The absence of an article of apparel usually worn out of doors, such as a hat, constitutes another observable circumstance by which a person may be identified." Burrill, Circ. Ev. 639.

§ 304. Perplexing Nature of this Grade of Evidence.Evidence of identity should be as far certain as human recollection under the most favorable circumstances will permit. The books are full of instances where inaccurate evidence as to identity has consigned unfortunate beings to the prison and the gibbet. 3 Greenl. Ev. § 30; Wills, Circ. Ev. chap. 47; Nichols v. People, 17 N. Y. 114; McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456. Questions of identity are often perplexing and doubtful, as observe from the following cases:

The case of Martin Guerre, heard before the Parliament of Toulouse in 1850. In this case Arnauld Dutille, an adventurer, imposed successfully on the wife of Guerre as her husband and had children by her. Several hundred witnesses were examined and it was only the arrival of the true husband that developed the deceit. 1 Beck, Medical Jurisprudence (13th ed.) 674.

Case of Sieur De Caille, cited by same author, page 675; Case of Salome Muller, heard before the supreme court of Louisiana, May term, 1845. See Beck, Medical Jurisprudence (13th ed.) 683; Case of Shepardson (Beck, page 683); the Lowell case, Lenaquez case, and the negro case cited by Beck, pages 684, 685. See also Munsell's Cases of Personal Identity, published in Albany in 1854. People v. Wiggins, 1 N. Y. Crim. Rep. 290, affirmed in 92 N. Y. 656, 1 N. Y. Crim. Rep. 296.

§ 305. Cautionary Suggestions of Mr. Justice Taylor.— "The first degree of evidence, and that which, though open to error and misconception, is obviously most satisfactory to the mind is afforded by our own senses. 'Believe half what you yourself see, and a twentieth part of what you hear from others,' is a maxim, which reflects severely upon human intelligence and veracity, but which, nevertheless, is founded in the main upon the experience of life, and marks the vast distinction that obtains be

tween a knowledge of facts derived from actual perception, and the belief of the existence of facts resting on information.

"These observations apply to all cases, in which the guilt or innocence of the prisoner depends upon the identity or comparison of two articles found in different places; as, for example, the wadding of a pistol with portions of a torn letter found on the person of the accused, or the fractured bone of a sheep with mutton found in his house, or fragments of dress with his rent garment, or damaged property with the instrument by which the damage is supposed to have been effected. In all these, and the like cases it is highly expedient, if possible, to produce to the court the articles sought to be compared; and although the law, in demanding the production of the best evidence, does not expressly require that this course should be adopted, but permits a witness to testify as to his having made the comparison, without first proving that the article cannot be produced at the trial, their non-production, when unexplained, may often generate a suspicion of unfairness, and will always furnish an occasion for serious comment." See 1 Taylor, Ev. §§ 554, 555, citing Armory v. Delamirie, 1 Strange, 504; 1 Smith, Lead. Cas. (8th Am. ed.) *374.