trial court allowed a magnifying glass to be [duced his wife to go to the place where her put in evidence, and taken to the jury room, body was found, and there murdered her where such glass had been used upon the trial by experts to discover blood stains upon defendant's garments. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.*] with a hatchet. The connecting links of this testimony and the circumstances surrounding the life of the defendant and his wife were substantially illustrated and connected by witnesses whose 2. CRIMINAL LAW (§ 472*)-EVIDENCE-FIN-testimony in no way was impeached or whose GER PRINTS. It was not error to allow testimony by experts concerning finger prints obtained from the defendant voluntarily, and used as a method of comparison with finger prints upon a hatchet found near the body of the deceased when the body was discovered. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. § 472.*] Error to Court of Oyer and Terminer, Essex County. Angelo Cerciello was convicted of murder in the first degree, and brings error. firmed. creditability was not materially affected by a searching cross-examination. The defendant attempted to prove an alibi. deavored to show that, if the defendant posThe state by a series of circumstances ensessed a motive for committing the crime, that motive was jealousy, arising out of the fact that when he married the deceased he knew she was not a pure woman; that she had a liaison with the son of a neighborAfing shoemaker, of whom he was jealous, and that he therefore possessed an innate feeling and doubt of her loyalty to himself. There was ample testimony adduced to sustain that view, presented by witnesses for the state, who detailed conversations with, and admissions of, the defendant, from whom such a state of mind might be properly inferred. One of these witnesses testified that about three weeks after his marriage, and some months prior to the homicide, the defendant for Frank M. McDermit, of Newark, plaintiff in error. Louis Hood and Wilbur A. Mott, both of Newark, for the State. MINTURN, J. The plaintiff in error was tried and convicted in the Essex oyer and terminer of murder in the first degree. The deceased, Elvira Cerciello, was his wife, 19 or 20 years of age. said to the witness: If not, The writ of error in the case brings up a "If she keeps good all right. strict bill of exceptions and the entire rec-four strokes of a hatchet I will fix her." ord of the proceedings had upon the trial. May 30, 1913, in the morning about half past 6, while on his way to work, a witness saw the body of a woman lying flat on her face, near the path just through the edge of the woods. He stopped about 12 feet from the body, and then went to the stable where he worked and told another man what he had seen. The body was lying 300 or 400 yards from Grove street, and quite a distance from Bloomfield avenue. A telephone message was sent to the chief of police of Bloomfield, who arrived at the scene of the homicide between half past 7 and 8 o'clock. with There was no objection entered to this testimony, but, if there were, it was admissible as a threat showing an existing disposition, intent, or motive to commit the crime, if the exigency should present itself. 2 Best on Ev. 776, 21 Cyc. 890; Henderson v. State, 70 Ala. 29; State v. Day, 79 Me. 120, 8 Atl. 544; State v. Bradley, 64 Vt. 466, 24 Atl. 1053; Commonwealth v. Holmes, 157 Mass. 233, 32 N. E. 6, 34 Am. St. Rep. 270. Remoteness in time is the objection now urged, but that fact furnishes an argument for consideration by the jury in weighing the evidence, but it does not always preclude It was also testified that there were foot-its admissibility as evidence. 21 Cyc. 892; prints at that point for a distance of about 10 or 15 feet in circumference, and that there was a pool of blood under the neck of deceased where she laid. It was also shown that a comb and some hair and a handkerchief were found there. There was proof of the finding in close proximity to the body a hatchet, covered with blood, in whose niches was human hair of the color and texture of the hair of the deceased. State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; Redd v. State, 68 Ala. 492; Everett v. State, 62 Ga. 65. A revolver was put in evidence by the state for the same general purpose of showing a predisposition and intent to commit the deed. Landisi, one of the state's witnesses, in a conversation with the defendant obtained this admission from him as his reason for failing to use the revolver: "If I did use a revolver they will hear the shooting-the shot; they will hear the shot." "I ask him," said Landisi, "Where did you put the revolver?' 'I put the revolver in the drawers of my brother, and the bullets or the cartridges I throwed them in the water-closet, so the authorities they can't find anything in the store.'" It was also in evidence that the defendant, on the night of the homicide, wore a sweater from which when it was found there was one button missing. A button corresponding to those on the sweater was found about 25 feet from where the body was found. From admissions made by the defendant to prisoners in the jail, it was clearly inferable, if the The objection urged to the admission of jury credited their testimony, that the de- the revolver extends to a bottle found a few fendant alone on the night in question in-yards from the body of the deceased. The bottle bore the odor of whisky. The witness Landisi testified that defendant told him: "I prepared myself with the hatchet behind my pants and big knife and bottle of whisky; after I drank the whisky and I beginning to strike her with the hatchet, and I went away." The connection between the revolver and the whisky bottle and the defendant's criminal attitude regarding the deceased and his preparation for the commission of the deed were thus sufficiently evinced and connected as to make it apparent that both the articles were properly admitted in evidence as bearing upon the defendant's state of mind and the truth of his admissions. 21 Cyc. 898, and cases cited; State v. Hill, 65 N. J. Law, 627, 47 Atl. 814. The defendant's contention that the testimony of one Gelsomnia Longo was immaterial and irrelevant, but nevertheless was admitted by the court, upon condition that the prosecution would thereafter show its materiality by connecting it, which the state failed to do, is not substantial; since, while the testimony was not stricken out, it was characterized by the defendant as irrelevant and immaterial, and, being such, it was confessedly noninjurious to him. [1] Certain magnifying glasses were of fered in evidence by the state, without objection by defendant. The glasses had been used by an expert on the trial to assist to detecting what was alleged to be the impression of defendant's finger prints, upon the hatchet. The history and quality of the lenses were fully explained by the expert. They were stronger in their magnifying intensity than the ordinary magnifying spectacles which jurymen and the general public use in the affairs of everyday life, and of such matters the court is presumed to take judicial notice. Stephen on Ev. p. 314. In the absence of proof that the glasses might in some measure unfairly prejudice the defendant's case, we are unable to perceive how their admission injured him. The argument most strenuously pressed by counsel for the defendant was directed to the assignment of error, which is based upon the action of the trial court in allowing to go before the jury testimony intended by the state to present for their consideration an impression of the defendant's finger prints. [2] The testimony in the main was that the defendant, after he had been some time in custody, was taken by two officers to the office of an expert in finger print impressions, and was there induced to sign his name upon a sheet of paper, which act incidentally impressed his finger prints upon the sheet. It was contended that the action of the court in allowing the experts upon this subject to testify to their experience in that line of work, as well as to the practical results obtained by use of their art in detecting crime, was illegal and incompetent. We do not so view it. The design of the prosecution, quite experts in that particular calling, but the weight of their testimony and its importance as evidence in the case, the court quite properly left to the jury to determine. Such is the course pursued in the case of the testimony of expert witnesses in other branches of human effort, science, and progress. Their testimony, as well as its subject-matter, involving the introduction in the case of the alleged finger prints of the defendant, for the purpose of comparing them with the finger prints upon the hatchet, presents a subject for judicial consideration, which, while not entirely res nova in principle, is, in its practical application in criminal procedure in this jurisdiction, essentially novel. dence is based upon the theory that the In principle its admission as legal evievolution in practical affairs of life, whereby the age are manifest in every other departthe progressive and scientific tendencies of ment of human endeavor, cannot be ignored in legal procedure, but that the law, in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes which are the work of educated and skillful men in their various departments, and apply them to the demoneffect to be given to the effort and its restration of a fact, leaving the weight and sults entirely to the consideration of the jury. Stephen Dig. Ev. 267; 2 Best on Ev. 514. The instances are numerous, and the books replete with cases where this rule, arising and applied ex necessitate, and based in its incipiency upon the maxim of the civil law, "Cuilibet in sua arte perito est credendum," exhibiting one of the prominent exceptions of the general rules of evidence, has been applied in a multiform variety of cases, from the earliest era of reported common law, to elucidate and demonstrate disputed and & Fin. 85; 2 Best on Ev. 864. elusive facts. Sussex Peerage Case, 11 Cl. Upon this theory it is that a seal engraver may be called to give his opinion whether an impression was made from an original seal or from an impression; that the opinion of an artist may be taken as to the genuineness of a picture (Greenleaf, Ev. 516); that the testimony of an expert in handwriting is recognized (West v. State, 22 N. J. Law, 212); that a photographic impression of defendant may be used (Ruloff's Case, 45 N. Y. 213); that a comparison between the size and shape of a defendant's shoes and footprints found near the scene of the murder may be introduced (State v. Morris, 84 N. C. 756; Commonwealth v. Pope, 103 Mass. 440). This court has held that it was not erroneous to permit evidence of the coincidence between the hand of the accused and the bloody print of a hand upon the wall of the house where the crime was committed; the on, at the request of persons who were with him at the time. Nor was it erroneous in the same case to allow testimony as to the resemblance between the spots upon the clothing produced and spots out of the same clothing, and used by experts in determining whether they were blood spots. State v. Miller, 71 N. J. Law, 528, 60 Atl. 202. The same case is also authority for the proposition, generally conceded by the trend of judicial authority, that the condition upon which such testimony is received is that, so far as the defendant is concerned, he shall not have involuntarily contributed to its production, so as to cause him, in legal effect, to serve as a witness against his will, to furnish testimony to convict himself under the rule adopted in this state as part of the common law. State v. Zdanowicz, 69 N. J. Law, 619, 55 Atl. 743. We do not find from an inspection of the testimony here that this legal safeguard was contravened in the case of this defendant. What he did at the time he submitted to at the request of the officers. The writing of the letter which resulted in the impression of the finger prints was in our judgment voluntary upon his part, and obviously no threats or menaces were used to force him to comply. We are unable to discover from the case whether the finger print impression so ob tained was offered in evidence, and used at the trial. But whatever the fact may be, under the circumstances, its admission would be no ground for error. One portion only of the court's charge calls for our consideration; since, as a whole, we have concluded the charge presented the questions involved in a legal manner to the jury, and substantially contained all the legal questions comprehended in defendant's requests properly applicable to the case. Referring to the testimony of Landisi, which in the main furnished the defendant's admissions of guilt, the court, in charging the jury, stated: "On the other hand, the jury has a right to convict on the testimony of Landisi, if, in their judgment, it is entirely creditable and worthy of belief." Eliminating the rest of the charge from consideration, in which was comprehended all the necessary instructions concerning the defendant's right to the benefit of a reasonable doubt, and the presumption of his innocence until his guilt be proven, this excerpt might present a basis for criticism; but since the charge must be read as a whole, with a view to its impression as an entirety upon the jury (State v. Zdanowicz, 69 N. J. Law, 619, 55 Atl. 743), and since it was competent for the jury to convict upon the defendant's own confession legally made (State v. Kwiatkowski, 83 N. J. Law, 650, 85 Atl. 209), the particular direction in question must seem legally unobjectionable. Our examination of the remaining objections urged for error leads us to conclude that they were not of such a character as to injure or prejudice the defendant in the ultimate consideration of the case by the jury, and for that reason they present no legal basis for a reversal of this conviction. Titus v. State, 49 N. J. Law, 36, 7 Atl. 621. The conviction must be affirmed. (86 N. J. L. 226) GIBBS v. COOPER. (No. 8.) (Court of Errors and Appeals of New Jersey. June 15, 1914.) (Syllabus by the Court.) 1. DAMAGES (§ 78*)-LIQUIDATED DAMAGES— STIPULATIONS-CONSTRUCTIONS. An agreement for the conveyance of land contained a clause fixing $1,000 as liquidated damages for the breach of all and singular the sulting from breaches of different covenants covenants and agreements, when the loss remust clearly differ in amount. Held, that the amount is a penalty only, and that the most that can be recovered for a breach is the actual loss. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 157-163; Dec. Dig. § 78.*] 2. FIXTURES (§ 35*)-WHAT CONSTITUTESVENDOR AND VENDEE. The inference arising from the annexation of personal property to real estate is an inference of fact, not a conclusion of law; the question whether it becomes part of the realty is a question for the jury, and evidence is adintent to annex the personalty to the realty or missible to prove either that there was no that subsequently by agreement it again became personal property as between vendor and vendee. Cent. Dig. 88 67-79; Dec. Dig. § 35.*] [Ed. Note.-For other cases, see Fixtures, Appeal from Supreme Court, Warren County. Action by James C. Gibbs against Watson C. Cooper. Judgment for plaintiff, and defendant appeals. Reversed. Joseph M. Roseberry, of Belvidere, for appellant. William H. Morrow, of Belvidere, for appellee. SWAYZE, J. This was an action for damages for the failure of defendant to perform a contract to convey a farm to the plaintiff. The defendant was ready with a deed on the day and at the place appointed, and it is not questioned that the description by metes and bounds contained in the deed covered the land described shortly in the agreement. The plaintiff refused to comply because the defendant, between the date of the agreement and the date fixed for the delivery of the deed had removed a generator for acetylene gas, the piping and fixtures connected therewith, and a hayfork. The real question in the case was whether these were part of the realty or were personal property. The judge held they were part of the realty, and, thinking that a payment of $1,000 for failure to perform provided for in the agreement, was liquidated damages,, the amount seems excessive for the failure to directed a verdict for that amount with inter- convey the manure; and the real damages est. must be readily reducible to certainty by [1] The agreement not only provided for a proof before a jury. Moreover, the same conveyance of the land, but also as a separate amount is to be paid by Gibbs if he defaults item, although for the same consideration, the as by Cooper if he defaults. Now, unless the conveyance of the manure and compost then | value of the land is an exact equivalent of on the premises or that might be made thereon, prior to the delivery of the deed. The clause relied on by the learned trial judge, after providing that the parties and their heirs, executors, and administrators were bound for the performance of "all and singular the covenants and agreements," added: the money, either vendor or vendee must profit by the consummation of the contract. If either will, in fact, profit, and the case is one where actual damages are recoverable by law (Brown v. Honniss, 70 N. J. Law, 260, 58 Atl. 86), then the loss resulting from the breach of the vendor must differ from the "And they hereby agree to pay, upon fail- loss resulting from the breach of the vendee; ure to perform the same, the sum of one thou-one loses by the failure to perform; the other sand dollars which they hereby fix and settle is saved from a loss. If it be said that, in as liquidated damages therefor." It is well settled that the question whether contemplation of law, there is in certain cases no actual damage recoverable in such a a sum agreed to be paid in case of failure to transaction (Gerbert v. Trustees, 59 N. J. perform is a penalty or liquidated damages Law, 160, 35 Atl. 1121, 69 L. R. A. 764, 59 Am. depends upon the circumstances of the case, St. Rep. 578), then the amount stipulated is and not on the words used by the parties. clearly excessive, and an attempt to substiThey may call it a penalty, and it may in law tute the agreement of the parties for a rule be liquidated damages; they may call it of law. We think it clear that the $1,000 is liquidated damages, and it may in law be a a penalty only and that the most that can be penalty. Whitfield v. Levy, 35 N. J. Law, recovered is the actual loss. 149, at 156. Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626; City of Summit v. Morris County Traction Co. (Err. & App.) 88 Atl. 1048. In the second case cited we said: "Their agreement will, however, be ascertained by considering not only particular words in their contract, but the whole scope of their bargain, including the subject to which it relates. If, on such consideration, it appears that they have provided for larger damages than the law permits-e. g., more than the legal rate for the nonpayment of money-or that they have provided for the same damages on the breach of any one of several stipulations, when the loss resulting from such breaches clearly must differ in amount, or that they have named an excessive sum in a case where the real damages are certain or readily reducible to certainty by proof before a jury, or a sum which it would be unconscionable to award, under any of these conditions the sum designated is deemed a penalty. And, if it be doubtful on the whole agreement whether the sum is intended as a penalty or as liquidated damages, it will be construed as a penalty, because the law favors mere indemnity." [2] Even that can only be recovered in case there was a default by the defendant, and this turns upon the question whether the apparatus in question was or was not a part of the realty. There was evidence that by express agreement it was reserved as personal property. This presented a question for the jury, since the inference arising from annexation of personal property to real estate is an inference of fact, not a conclusion of law. Pope v. Skinkle, 45 N. J. Law, 39; Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. St. Rep. 889; Palmateer v. Robinson, 60 N. J. Law, 433, 38 Atl. 957. It is now argued that the evidence was inadmissible under the rule of Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380. That case is inapplicable. There is no language in the agreement which expressly includes the generator, pipes, and hayfork. If they are included, it is because they are part of the farm agreed to be conveyed; to show that they were part of the farm, it was necessary for the plaintiff to prove, as he undertook to do, actual annexation; to meet this it was equal We venture to repeat this language because one of the cases put by Mr. Justice Dixon covers the present case. This agreement pro-ly permissible for the defendant to prove vides the same damages on the breach of any one of several stipulations, when the loss resulting from the breaches must clearly differ in amount. The amount fixed is the same whether the breach of Cooper is the failure to convey the land or the failure to convey the manure and compost. The amount is to be paid for failure to perform all and singular the covenants and agreements, not merely for a breach of all the covenants, but as well for a breach of a single one. It would be most extraordinary to mulet the defendant in the same amount for failure to convey the either that there was no intent to annex to the realty or that subsequently by agreement the apparatus again became personal property as between the parties. The case is not unlike a case where it becomes necessary to establish by a survey what land is embraced within the description. If we are to be confined, as the plaintiff insists, to the bare words of the agreement, an insuperable difficulty is in the way of the plaintiff's claim; since the farm is therein said to be the same premises conveyed to Cooper by Nicholas Harris, master in chancery, and it is undisputed fork were put up by the defendant himself | than to refrain from willful injury; that the after he got title. We think, however, it was a jury question. Whether, where the facts are in dispute as to its character, a byway is a publicly traveled byroad is a question for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1152-1192; Dec. Dig. § 350.*] 2. RAILROADS (§ 350*)-CROSSING ACCIDENTCONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. Whether in using such a road or way, where it was crossed by the defendant's third rail system, the plaintiff was guilty of contributory negligence was a jury question. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1152-1192; Dec. Dig. 350.*1 Appeal from Supreme Court. Action by Edmund Tarlucki, by next friend, against the West Jersey & Seashore Railroad Company for personal injuries. From judgment for defendant on a directed verdict, plaintiff appeals. Reversed. accident did not happen on the alleged crossing; and that the plaintiff was guilty of contributory negligence. The trial judge directed a verdict in favor of the defendant, from which judgment the plaintiff appeals. [1] The only question presented upon this record is whether, under the testimony, a judirection of a verdict for the defendant was ry case was presented, or whether the court's proper. The case was before the Supreme Court on demurrer to the plaintiff's declaration, where the case presented was that of a manifest trespass by the plaintiff, and the demurrer was sustained. 80 N. J. Law, 688, 78 Atl. 149. Subsequently the amended declaration upon which the present action was 82 tried was sustained by the same court. N. J. Law, 138, 81 Atl. 495. The doctrine enunciated in the latter case presented the principle and theory upon which the case was tried. It was there declared that the averment in the declaration that the word "byway," in the declaration, must be taken to be the equivalent of a "byroad," and that, a byroad "being a public way of which the public are entitled to make use as of right, a railroad company where its tracks cross it is under a duty not to subject the traveling public to latent dangers at such crossing." The only question for our consideration, therefore, is whether there was any evidence adduced at the trial from which the jury could legitimately infer that the road in See, also, 80 N. J. Law, 688, 78 Atl. 149; question was what the declaration alleged it 82 N. J. Law, 138, 81 Atl. 495. Westcott & Westcott, of Atlantic City, for appellant. Bourgeois & Coulomb, of Atlantic City, for appellee. MINTURN, J. The plaintiff was injured on the railroad of the defendant between the upper and lower stations at May's Landing, by coming in contact with an electrified third rail, over which he had tripped in passing from one side of the railroad to the other. The accident happened on or about the 23d day of May, 1908, at which time the plaintiff was about eight years old. to be; and whether the learned trial court was correct, under the circumstances, in directing a verdict. We think there was evidence pro and con upon the character and legal status of the road, whether under adverse enjoyment or under an easement, based upon a license from the owner of the fee, from which the jury might infer that the road had been in existence for over 60 or 70 years, and that it had been used as such by the public for various purposes upon either legal theory. Its boundaries were more or less accurately defined, and its history and use through The plaintiff's theory of the liability of the that period of time were presented by witdefendant for the injury rests upon the prop-nesses of the vicinity, the value of whose tesosition that at the place where the plaintiff timony presented a fact question, which calltripped and fell over the electrified third railed for the consideration of a jury. Van there was an "ancient by road," and that it was the duty of the railroad company, therefore, to so protect its third rail at the crossing that persons using such crossing could do so in safety, and that the defendant had neglected this duty by leaving the electrified third rail exposed. Blarcom v. Frike, 29 N. J. Law, 516; Wood v. Hurd, 34 N. J. Law, 87; Riverside v. Penn. R. R., 74 N. J. Law, 476, 66 Atl. 433. [2] The learned trial court assigned no reason for the direction of the verdict, and we are free to assume, therefore, that it was based upon the theory either that the road in The theory of the defense was that there question was private property, upon which was no byroad or byway or public crossing the plaintiff was trespassing, or that, if it of any character crossing the railroad at or were deemed to be a public way, the plaintiff near the point where the accident took nevertheless, by his conduct, was guilty of place; that the plaintiff was a trespasser, contributory negligence, in attempting to and the defendant owed him no greater duty cross the defendant's right of way over it, in |