Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Edwin E. Caine and Harold P. Hale, for Appellant.
District Attorney, for Respondent.
By the Court, McCarran, C. J.:
In this case we are dealing with the appeal of B. E. Kuhl only. The appeal of Ed. Beck, who was tried separately, is dealt with by this court in another opinion. [See No. 2330, immediately following this case.]
The appellant, Kuhl, with his co-defendants, were jointly informed against by the district attorney of Elko County for the crime of murder. They were specifically charged with the killing of one Fred M. Searcey, a United States mail-stage driver, at or near Jarbidge, in Elko County, Nevada. The testimony was wholly circumstantial. One of the elements in the case was an envelope, secured from one of the rifled mail sacks, on which was a bloody print or impression of a portion of the palm of a human hand. The trial of the defendant Kuhl resulted in a verdict of murder in the first degree, by reason of which the death penalty was imposed. From the judgment, and from the order denying a new trial, this appeal ensues.
It is the contention of appellant here that the trial court erred in admitting the testimony of the witnesses Stone and Botorff, offered in behalf of the state, as experts on palm-print identification. From the record it is disclosed that the impression found upon the envelope taken from the rifled mail sack was made by that portion of the palm which is immediately below the base of the little finger of the left hand. In offering the testimony of the experts, photographic enlargements and projectoscope views were used and presented to the jury. Objections were interposed to these methods of presenting the evidence, and with such we will deal during the course of the opinion.
The first question which we propose to discuss is a novel one, inasmuch as our research has failed to disclose an expression from any court from which we might
gain aid or guidance. After the arrest of the appellant, Kuhl, and while he was confined in the jail at Elko, an impression was taken of the palm of his left hand, and particularly that portion of the palm below the base of the little finger. The fact that the witnesses Stone and Botorff testified that the two impressions were made by the same hand gives rise to that phase of the appeal most strongly contended for by appellant.
Before testifying to their opinion as to the identity of the defendant's palm print with the impression found upon the bloody envelope taken from the mail sack, each of the witnesses fully explained his qualifications. Mr. Stone related in detail as to his study on the subject of finger-print identification and classification. It is disclosed that his investigation and research in this line had taken up his time almost continuously from the year 1908 or 1909 to the time of the trial; that during that time he had been engaged by at least two recognized identification bureaus, one under the state police department of the State of Nevada, the other under the police department of the city of Fresno in California. He testified to having visited numerous identification bureaus and to having attended conventions held by those engaged in this science in the United States. The witness Botorff related an experience entailing research and investigation in the line of finger-print identification and classification continuing from the year 1903 up to the time of the trial. Each of the witnesses was, as the record discloses, exhaustively and skilfully cross-examined on every phase of the subject that would bring forth to the jury their ability or lack of ability to give a correct or worthy conclusion as to the identity of finger-print impressions.
Were we dealing here with a finger-print impression, or the question of the comparison or identity of finger-print impressions, our course would be easy, for the courts of this county, and of England as well, have paved the way for the recognition of this science as an evidentiary element in criminal prosecutions. The main
contention here is that the experts who testified were not qualified to give an opinion as to the identity of palm-print impressions; and, as we understand the contention of appellant, it is that science has not yet developed this question sufficiently to bear out the conclusion of an expert on the subject. Will the same rule which has led the courts to recognize experts on finger-print identification permit such experts to testify as to their conclusion upon palm-print identification? This is the one vital question here.
The origin of finger-print identification may be traced back to a period a hundred years before the birth of Christ. Scientific American, April 1, 1916, p. 356. By a Japanese scholar, Mr. Kumagusu Minakata, in an article entitled The Antiquity of the Finger-Print Method, we are told that the discovery of this phenomenon of identity, as it may be termed, was made by the Chinese. In a most interesting article, entitled History of the Finger-Print System (Annual Report of the Board of Regents of the Smithsonian Institution for the year ending June 30, 1912, p. 631), Mr. Berthold Laufer traces the subject back to an era before the birth of Christ. He refers to the writings of Kai Kung-Yen, an author who wrote about the year 650 A. D., and who makes allusion to the employment of finger-print impressions in his time, and earlier, for the purposes of identification.
It may have come as a result of the diversified and extensive reading of the learned author that, in his famous novel, Puddin' Head Wilson, Mark Twain causes one of his characters to make the significant speech:
Every human being carries with him from his cradle to his grave certain physical marks which do not change their character and by which he can always be identifiedand that without shadow of doubt or question. These marks are his signature, his physiological autograph, so to speak; and this autograph cannot be counterfeited, nor can he disguise it or hide it away, nor can it become illegible by the wear of the mutations
of time. This signature is each man's ownthere is no duplicate of it among the swarming millions of the globe. Upon the haft of this dagger stands the assassin's natal autograph, written in the blood of that helpless and unoffending old man who loved you and whom you all loved. There is but one man in the whole earth whose hand can duplicate that crimson sign.
When these lines were written by the beloved author modern science and modern culture had as yet failed to grasp the full significance of his words. Indeed, it was not until recent years that the true force of the lines of the great Westerner could be fully appreciated. However ancient may be the origin of this means of identification, it remained for Sir Francis Galton to bring forth the principle in such a way as to gain the recognition of the world of science. In his book published in 1892, we find the following significant paragraph:
We read of the dead body of Jezebel being devoured by the dogs of Jezreel, so that no man might say, This is Jezebel,' and that the dogs left only her skull, the palms of her hands, and the soles of her feet; but the palms of the hands and the soles of the feet are the very remains by which a corpse might be most surely identified, if impressions of them, made during life, were available.
All of the writers upon the subject, to whose lines we have had access, agree that the palmar surface of the hands and the soles of the feet in men and monkeys are covered with minute ridges that bear a superficial resemblance to those made on the sand by wind or flowing water. Galton first gave expression to this fact; and Sir E. R. Henry, commissioner of police of the metropolis of London, corroborates with the statement that the inner part of the hand and the sole of the foot are traversed in all directions by lines of varying length. He says that the most conspicuous are the creases caused by the folding of the skin, and the least conspicuous but much more numerous lines are the papillary
ridges which exist over the whole palmar surface, giving it an appearance that may be likened to that of a newly plowed field with its ridges and furrows, or to sand which the water, in receding from, has left ribbed. In Mr. Frederick A. Brayley's book, entitled Finger-Prints Identification, we find the following significant language:
God's finger-print language,' the voiceless speech, and the indelible writing imprinted on the fingers, hand palms, and foot soles of humanity by the All-Wise Creator for some good and useful purpose in the structure, regulation, and well-being of the human body, has been utilized for ages before the civilization of Europe as a means of identification by the Chinese, and who shall say is not a part of the plan of the Creator for the ultimate elimination of crime by means of surrounding the evilly disposed by safeguards of prevention, and for the unquestionable evidence of identity in all cases where such is necessary, whether it be in wills, deeds, insurance, or commercial mediums of finance, as well as in the discovering and identification of lawbreakers.
Mr. Tighe Hopkins, in his work, Wards of the State, makes extended reference to the papillary lines as covering the palms of the human hands and the soles of the human feet. In a work entitled Criminal Investigation, translated by John and J. Collyer Adam from the work entitled System der Kirminalistik, by Dr. Hans Gross, extended reference is made to the general subject. In a pamphlet published by Sir Wm. J. Herschel, dealing with the subject of finger-print identification, we find a most interesting history of experiments made by the learned author while acting in the British service in India. He interestingly relates of his experimentation with his own whole hand and with his right foot, which he says after an interval of fifty-seven years remained irresistibly unchanged. The Origin of Finger Printing, by Sir Wm. J. Herschel, Humphrey Milford, Oxford University Press, June, 1916, p. 11.
In his work Guide to Finger-Print Identification, by Henry Faulds, late surgeon superintendent of Tsukiji Hospital, Tokyo, Japan, reference is made to the papillary ridges found covering the face or palmar surface of the hands and feet of the human being. In a terse and graphic little work entitled Hints on Finger Prints, written by Rai Sahib Hem Chandra Bose, finger-print expert of Bengal, India, and a pupil of Sir Edward Henry, we find that, after dwelling on the possibility of error in finger-print comparison, the author makes this most significant assertion:
In fact, the indications on the inner surface of the hand are so numerous that, if half a square inch of any part of it were all that remained, that would be enough in that it would prove identity by comparison.
In his work entitled The Finger-Print Instructor, Mr. Frederick Kuhne, of the bureau of criminal investigation of the police department of the city of New York, after dwelling at length on the basis of finger-print identification and the methods of classifying finger-print impressions, and especially upon the extent and usefulness of such identification, tells us that in some European cities impressions of the palms of the hands are utilized as an additional means of identification, especially because numerous patterns and characteristics appear in the palms as well as in the fingers, and in his work (page 96) he sets forth an illustration vividly portraying the truth of his assertion.
The lines on the palms of the human hand and the soles of the feet, which form the basis of individual identification, are the papillary ridges. They serve the office of raising the mouths of the ducts, so as to facilitate the discharge of the sweat, and perhaps perform the additional functions of aiding the sense of touch and of giving elasticity to the skin of the hand, and, having a vacuumistic tendency, they assist in preventing against slipping. These papillary ridges form ...