Police: Right to Take Photographs

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<ul><li><p>California Law Review, Inc.</p><p>Police: Right to Take PhotographsSource: California Law Review, Vol. 10, No. 3 (Mar., 1922), p. 264Published by: California Law Review, Inc.Stable URL: http://www.jstor.org/stable/3474894 .Accessed: 23/05/2014 11:19</p><p>Your use of the JSTOR archive indicates your acceptance of the Terms &amp; Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp</p><p> .JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.</p><p> .</p><p>California Law Review, Inc. is collaborating with JSTOR to digitize, preserve and extend access to CaliforniaLaw Review.</p><p>http://www.jstor.org </p><p>This content downloaded from 195.78.109.103 on Fri, 23 May 2014 11:19:28 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/action/showPublisher?publisherCode=clrhttp://www.jstor.org/stable/3474894?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>264 264 10 CALIFORNIA LAW REVIEW 10 CALIFORNIA LAW REVIEW </p><p>ably that would be the better practice. There seems, however, to have been some confusion as to whether or not the trial court had sufficient discretionary power to grant a continuance under such circumstances. This doubt was due in a great measure to the case of Dunphy v. Belden (1881) 57 Cal. 427, holding that the mere fact that an appeal was pending in anotller cause was not sufficient ground for the granting of a continuance. That case was impliedly overruled in two subsequent cases ( Brown v. Campbell, supra, and Jones v. Smith (19()0) 128 Cal. 14, 60 Pac. 466); but, because never expressly overruled, it has often been quoted as representing the California view. (See 13 C. J. 136, n. 86.) The principal case expressly overrules it. The result is that the question of whether a continuance should or should not be granted under such circumstances is left to the court's discretion and, being a matter of discretion, the court will look to see whether or not the moving party has acted in good faith. In the future, then, the pleader who, in good faith, wishes to avail himself of a judgtnent which would be res judicsta of some or all of the issues involved in the present cause may, until the final adjudication of the other action, do so by simply moving the court for a continuance. </p><p>POLICE: RIGHT TO TAKE PHOTOCRAPHS-The right of an oflicer to take the photograph of a person arrested for felony is in great confusion (8 Cali- fornia Law Review, 2S). In California there is a law (Cal. Stats. 1917, p. 1391) which provides in section five that it shall be the duty of the board of managers of the State Bureall of Criminal Identification and Investigatioll to file "all plates, photographs, outline pictures, measurements, information and descriptions" received by virtue of its office. Section eight makes it the duty of the sheriffs, etc., to furnish to the bureau daily copies of finger- prints and descriptions of all persons arrested who in the best judgment of such sheriffs are wanted for serious crimes, etc. The omission in section eight of certain words, including the word "photograph" contained in section five, has raised a doubt as to the right of sheriffs to take photographs; or, in other words, are photographs included under the word "description" in section eight? This doubt would seem to be resolved in favor of the right in the case of Burke v. Watts (1922) 63 Cal. Dec. 182. Plaintiff sued the defendant for malicious prosecution in procuring his arrest. The sheriff had taken the plaintiff's photograph. The photograph was offered in evi- dence to enhance the damages. The defendant contended that he was not responsible for the act of tlle sheriff. The court concedes this would be true unless there is some law authorizing photographs to be taken. This authority the court finds in section eight of the Criminal Identification Act, saying "Clearly the photographs in question were talcen as a part of respondent's description." This would seem to be the proper construction. The Bertillon identification system mentioned in the statute would be practically useless without a photograph. Tlle evident purpose was to confer a general power to take photographs, but to leave its exercise to the discretion of the sheriff. It would obviously be foolish to require the sheriff to take a photograph and include it with every description. Many times the finger-prints are sufficient, as in the case of habitual criminals whose photographs are already in every criminal library. </p><p>ably that would be the better practice. There seems, however, to have been some confusion as to whether or not the trial court had sufficient discretionary power to grant a continuance under such circumstances. This doubt was due in a great measure to the case of Dunphy v. Belden (1881) 57 Cal. 427, holding that the mere fact that an appeal was pending in anotller cause was not sufficient ground for the granting of a continuance. That case was impliedly overruled in two subsequent cases ( Brown v. Campbell, supra, and Jones v. Smith (19()0) 128 Cal. 14, 60 Pac. 466); but, because never expressly overruled, it has often been quoted as representing the California view. (See 13 C. J. 136, n. 86.) The principal case expressly overrules it. The result is that the question of whether a continuance should or should not be granted under such circumstances is left to the court's discretion and, being a matter of discretion, the court will look to see whether or not the moving party has acted in good faith. In the future, then, the pleader who, in good faith, wishes to avail himself of a judgtnent which would be res judicsta of some or all of the issues involved in the present cause may, until the final adjudication of the other action, do so by simply moving the court for a continuance. </p><p>POLICE: RIGHT TO TAKE PHOTOCRAPHS-The right of an oflicer to take the photograph of a person arrested for felony is in great confusion (8 Cali- fornia Law Review, 2S). In California there is a law (Cal. Stats. 1917, p. 1391) which provides in section five that it shall be the duty of the board of managers of the State Bureall of Criminal Identification and Investigatioll to file "all plates, photographs, outline pictures, measurements, information and descriptions" received by virtue of its office. Section eight makes it the duty of the sheriffs, etc., to furnish to the bureau daily copies of finger- prints and descriptions of all persons arrested who in the best judgment of such sheriffs are wanted for serious crimes, etc. The omission in section eight of certain words, including the word "photograph" contained in section five, has raised a doubt as to the right of sheriffs to take photographs; or, in other words, are photographs included under the word "description" in section eight? This doubt would seem to be resolved in favor of the right in the case of Burke v. Watts (1922) 63 Cal. Dec. 182. Plaintiff sued the defendant for malicious prosecution in procuring his arrest. The sheriff had taken the plaintiff's photograph. The photograph was offered in evi- dence to enhance the damages. The defendant contended that he was not responsible for the act of tlle sheriff. The court concedes this would be true unless there is some law authorizing photographs to be taken. This authority the court finds in section eight of the Criminal Identification Act, saying "Clearly the photographs in question were talcen as a part of respondent's description." This would seem to be the proper construction. The Bertillon identification system mentioned in the statute would be practically useless without a photograph. Tlle evident purpose was to confer a general power to take photographs, but to leave its exercise to the discretion of the sheriff. It would obviously be foolish to require the sheriff to take a photograph and include it with every description. Many times the finger-prints are sufficient, as in the case of habitual criminals whose photographs are already in every criminal library. </p><p>This content downloaded from 195.78.109.103 on Fri, 23 May 2014 11:19:28 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p><p>Article Contentsp. 264</p><p>Issue Table of ContentsCalifornia Law Review, Vol. 10, No. 3 (Mar., 1922), pp. 185-270The First Half-Century of the California Civil Code [pp. 185-201]The Theory of the Pleadings in Code States [pp. 202-225]Conduct of Insanity Proceedings [pp. 226-229]Comment on CasesAdministrative Law: Federal Trade Commission: Unfair Methods of Competition [pp. 229-231]Admiralty: Jurisdiction: Inclusion of Hydroaeroplane within Admiralty and Maritime Jurisdiction [pp. 232-234]Admiralty: Jurisdiction: Workmen's Compensation Acts [pp. 234-237]Constitutional Law: Due Process: Equal Protection: Validity of Statute Forbidding Use of Injunction against Picketing [pp. 237-241]Constitutional Law: Equal Protection: Alien Land Law [pp. 241-246]Constitutional Law: Mechanics' Liens: Validity of Statute Imposing Trust upon Funds Received by Contractor from Owner, in Favor of Sub-Contractor [pp. 246-248]Constitutional Law: Prescribed Courses of Study in Public Schools and the Constitutional Guaranty of Religious Liberty [pp. 249-251]Pleading: Inconsistent Defenses [pp. 251-255]Torts: Negligence: Violation of an Ordinance [pp. 255-257]Wills: Effect of Revoking Clause in Lost Will: Dependent Relative Revocation [pp. 257-260]</p><p>Recent DecisionsCarriers: Liability of Initial Carrier for Loss on Foreign Shipment Caused by Connecting Carrier [pp. 260-261]Community Property: Proceeds of Husband's Life Insurance Policy Are Community Property [pp. 261-262]Constitutional Law: Property Tax: Constitutionality of Domestic Tax on Seat in Foreign Stock Exchange [pp. 262-263]Contracts: Remedy Provided for in Compromise Agreement: Remedy for Fraud Inducing Compromise [p. 263]Pleading: Continuance during Pendency of Another Action [pp. 263-264]Police: Right to Take Photographs [p. 264]Taxation: Inheritance Tax: Inclusion of a Prior Gift in Computing the Tax Rate on a Subsequent Legacy [p. 265]</p><p>Book ReviewsReview: untitled [pp. 266-267]Review: untitled [p. 267]Review: untitled [pp. 267-269]Review: untitled [pp. 269-270]</p><p>Books Received [p. 270]</p></li></ul>