Beed, J.,
delivered the opinion of the court.
Appellant was convicted of murder and sentenced to the penitentiary for life.
The action of the circuit court in overruling the motion of appellant to quash the indictment against him is assigned as error. The presence of the county prosecuting attorney and the district attorney in the grand jury room, during the time that the charge against appellant was being investigated and deliberated on, was a ground in the motion to quash.
It appears that both officers were present before the grand jury while the case was under investigation. The district attorney was there when the bill was voted on. The county attorney could not state whether or not he was present when the vote was taken. It is shown that neither officer attempted in any way to influence the finding of the grand jury, nor did either of them express opinion on question of fact, or weight or sufficiency of evidence in the case. They were present for the purpose of giving general advice and instruction in the jurors’ procedure and the law, and to assist them in the examination of witnesses. Neither of the attorneys participated in the deliberations of the jury, and there is no evidence showing injury or prejudice.
It is made the duty of the county prosecuting attorney by statute (section 5, ch. 253, of the Laws of 1912) “to represent the state in all matters coming before the grand jury of his county.” He was therefore properly before the grand jury. The indictment in this case was not in any way rendered invalid by reason of his presence. State v. Coultor, 61 So. 706, 44 L. R. A. (N. S.) 1142.
Now in reference to the district attorney being present in the grand jury room during its investigation and deliberation in this case: It is stated in Encyclopedia of Pleading & Practice, vol. 10, p. 399, that:
[674]*674“The prosecuting attorney is the legal adviser of the grand jury in respect of the manner of its proceeding, and may he present and assist it by his counsel. But he can act only as adviser and has no right to exercise any manner of control over its actions.”
In the case of State v. Coulter, supra, referring to the duties of the district attorney in assisting the grand jury, we said:
“It is certainly the duty of the district attorney to render assistance to the grand jury whenever his services as an attorney representing the state will be helpful. As prosecuting attorney, he should be ready and willing at all times to aid the grand jury in their deliberations, and should go before them for that purpose, and a grand jury, desiring to fully investigate the offense under consideration and to make a correct presentment, will desire the presence of the district attorney and his advice and general help. Of course, he should not be in the room at the time the jury is deciding the case by their vote. ’ ’
We find a clear statement of the law, touching the presence of prosecuting attorney before a grand jury and his duty to render assistance in cases being investigated, in 20 Cyc. 1338, as follows:
“Although in some jurisdictions the prosecuting attorney is not allowed in the grand jury room, the general rule is that he may be present before the grand jury to assist in the examination of witnesses, to advise it as to the admissibility of evidence and the proper mode of procedure, and to give general advice on questions of law. But he cannot participate in the deliberations or express opinions on questions of fact or as to the weight and sufficiency of evidence, or attempt in any way to influence the finding. While it seems to be very generally regarded as the better practice, and the grand jury has a right to require that the prosecuting attorney shall retire from the room during its deliberations, and in some [675]*675jurisdictions his presence is expressly forbidden by the statute, the mere fact that, with the consent of the grand jury, he is present while the jnrors are deliberating or voting on a charge, will not constitute such an irregularity as, in the absence of a showing of injury or prejudice to the accused, will invalidate an indictment. ’ ’
In United States v. Terry (D. C.), 39 Fed. 355, it was decided that:
“The mere fact that the district attorney was present during the expression of opinion of the grand jury upon the charge in the indictment, and during their voting thereon, is at most an irregularity, which, in the absence of averment of injury dr prejudice to defendant, is a matter of form, and not of substance.”
In Commonwealth v. Bradney, 126 Pa. 199, 17 Atl. 600, it was decided that if there was no participation on the part of the district attorney in the deliberations of the grand jury, or no effort by him to influence their finding, his mere presence in the jury room during their deliberations is not good ground for quashing the indictment. Judge Clark, delivering the opinion of the court in this case, said:
“The district attorney is the attendant of the grand jury; it is his duty as well as his privilege to lay before them matters upon which they are to pass, to aid them in their examination of witnesses, and to give them such general instruction as they may require. But it is his duty during the discussion of the particular case, and, whilst the jurors are deliberating upon it, to remain silent. It is for the jury alone to consider the evidence, and to apply it to the case in hand; any attempt on the part of the district attorney to influence their action or to give effect to the evidence adduced is in the highest' degree improper and impertinent. Indeed, it is the better practice, and the jurors have an undoubted right to require, that he should retire from the room during their deliberations upon the evidence and, when the vote is [676]*676taken, whether or not an indictment shall be found or a presentment made. In the absence, however, of any participation in the deliberations of the jury or effort on his part to influence their finding, we do not think that the mere presence of the commonwealth’s officer in the jury room would be good ground for quashing a bill; no case has been called to our attention which carries the rule to this extent.”
We commend the clear and full statement made by Judge Clark of the duty and conduct of the district attorney in his attendance upon the grand jury and in his assistance in their work. We find there is no showing in this case of injury or prejudice to appellant by reason of the presence of the district attorney in the grand jury room. While it is a better practice for him not to be in the room while a vote is being taken, the mere fact of his presence, will be considered as an irregularity. The motion to quash was properly overruled.
We find no reversible error in the admission of the testimony of one of the witnesses, in reference to the angle in which certain bullets entered into a post or wall in the room in which the killing occurred. This testimony was entirely immaterial in the case. The question of appellant’s guilt was not dependent upon the direction or angle of the bullets, but, as shown by the whole evidence, it was only one of identity — whether the fatal shots were fired by appellant or a man called Oscar Johnson.
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Beed, J.,
delivered the opinion of the court.
Appellant was convicted of murder and sentenced to the penitentiary for life.
The action of the circuit court in overruling the motion of appellant to quash the indictment against him is assigned as error. The presence of the county prosecuting attorney and the district attorney in the grand jury room, during the time that the charge against appellant was being investigated and deliberated on, was a ground in the motion to quash.
It appears that both officers were present before the grand jury while the case was under investigation. The district attorney was there when the bill was voted on. The county attorney could not state whether or not he was present when the vote was taken. It is shown that neither officer attempted in any way to influence the finding of the grand jury, nor did either of them express opinion on question of fact, or weight or sufficiency of evidence in the case. They were present for the purpose of giving general advice and instruction in the jurors’ procedure and the law, and to assist them in the examination of witnesses. Neither of the attorneys participated in the deliberations of the jury, and there is no evidence showing injury or prejudice.
It is made the duty of the county prosecuting attorney by statute (section 5, ch. 253, of the Laws of 1912) “to represent the state in all matters coming before the grand jury of his county.” He was therefore properly before the grand jury. The indictment in this case was not in any way rendered invalid by reason of his presence. State v. Coultor, 61 So. 706, 44 L. R. A. (N. S.) 1142.
Now in reference to the district attorney being present in the grand jury room during its investigation and deliberation in this case: It is stated in Encyclopedia of Pleading & Practice, vol. 10, p. 399, that:
[674]*674“The prosecuting attorney is the legal adviser of the grand jury in respect of the manner of its proceeding, and may he present and assist it by his counsel. But he can act only as adviser and has no right to exercise any manner of control over its actions.”
In the case of State v. Coulter, supra, referring to the duties of the district attorney in assisting the grand jury, we said:
“It is certainly the duty of the district attorney to render assistance to the grand jury whenever his services as an attorney representing the state will be helpful. As prosecuting attorney, he should be ready and willing at all times to aid the grand jury in their deliberations, and should go before them for that purpose, and a grand jury, desiring to fully investigate the offense under consideration and to make a correct presentment, will desire the presence of the district attorney and his advice and general help. Of course, he should not be in the room at the time the jury is deciding the case by their vote. ’ ’
We find a clear statement of the law, touching the presence of prosecuting attorney before a grand jury and his duty to render assistance in cases being investigated, in 20 Cyc. 1338, as follows:
“Although in some jurisdictions the prosecuting attorney is not allowed in the grand jury room, the general rule is that he may be present before the grand jury to assist in the examination of witnesses, to advise it as to the admissibility of evidence and the proper mode of procedure, and to give general advice on questions of law. But he cannot participate in the deliberations or express opinions on questions of fact or as to the weight and sufficiency of evidence, or attempt in any way to influence the finding. While it seems to be very generally regarded as the better practice, and the grand jury has a right to require that the prosecuting attorney shall retire from the room during its deliberations, and in some [675]*675jurisdictions his presence is expressly forbidden by the statute, the mere fact that, with the consent of the grand jury, he is present while the jnrors are deliberating or voting on a charge, will not constitute such an irregularity as, in the absence of a showing of injury or prejudice to the accused, will invalidate an indictment. ’ ’
In United States v. Terry (D. C.), 39 Fed. 355, it was decided that:
“The mere fact that the district attorney was present during the expression of opinion of the grand jury upon the charge in the indictment, and during their voting thereon, is at most an irregularity, which, in the absence of averment of injury dr prejudice to defendant, is a matter of form, and not of substance.”
In Commonwealth v. Bradney, 126 Pa. 199, 17 Atl. 600, it was decided that if there was no participation on the part of the district attorney in the deliberations of the grand jury, or no effort by him to influence their finding, his mere presence in the jury room during their deliberations is not good ground for quashing the indictment. Judge Clark, delivering the opinion of the court in this case, said:
“The district attorney is the attendant of the grand jury; it is his duty as well as his privilege to lay before them matters upon which they are to pass, to aid them in their examination of witnesses, and to give them such general instruction as they may require. But it is his duty during the discussion of the particular case, and, whilst the jurors are deliberating upon it, to remain silent. It is for the jury alone to consider the evidence, and to apply it to the case in hand; any attempt on the part of the district attorney to influence their action or to give effect to the evidence adduced is in the highest' degree improper and impertinent. Indeed, it is the better practice, and the jurors have an undoubted right to require, that he should retire from the room during their deliberations upon the evidence and, when the vote is [676]*676taken, whether or not an indictment shall be found or a presentment made. In the absence, however, of any participation in the deliberations of the jury or effort on his part to influence their finding, we do not think that the mere presence of the commonwealth’s officer in the jury room would be good ground for quashing a bill; no case has been called to our attention which carries the rule to this extent.”
We commend the clear and full statement made by Judge Clark of the duty and conduct of the district attorney in his attendance upon the grand jury and in his assistance in their work. We find there is no showing in this case of injury or prejudice to appellant by reason of the presence of the district attorney in the grand jury room. While it is a better practice for him not to be in the room while a vote is being taken, the mere fact of his presence, will be considered as an irregularity. The motion to quash was properly overruled.
We find no reversible error in the admission of the testimony of one of the witnesses, in reference to the angle in which certain bullets entered into a post or wall in the room in which the killing occurred. This testimony was entirely immaterial in the case. The question of appellant’s guilt was not dependent upon the direction or angle of the bullets, but, as shown by the whole evidence, it was only one of identity — whether the fatal shots were fired by appellant or a man called Oscar Johnson. As the testimony was immaterial and could not affect the issue in the case, it is unnecessary in this consideration to determine whether or not such testimony, if material, would be competent.
Appellant contends that the court erred in refusing to admit a photograph purporting to show a part of the house in which was located one of the state’s witnesses at the time of the shooting. The counsel for the state objected to its admission because the photograph showed only a small portion of the building. It appears that [677]*677two photographs were in the hands of the witness. The photograph offered in testimony by appellant is called Exhibit No. 1. Another photograph was in the hands of the witness called Exhibit No. 2, and he stated that it represented nearly all of the house. No objection was made by the district attorney to appellant’s offering photograph No. 2 in evidence, but it was not offered. The court would not admit photograph No. 1. It appears to be the law that a photograph may be introduced in evidence, after it has been shown by testimony that it is a true and faithful representation of the place or subject as it existed. As to the admissibility of a photograph, we quote as follows from Jones, Commentaries on Evidence, vol. 3, sec. 581:
“It is a constant practice to receive as evidence pictures and drawings of objects which cannot be brought into court, after these have been proved to be accurate representations of the subject. In like manner photographs are often admitted, when the proper preliminary proof as to their exactness and accuracy is offered. They are of the same character of evidence as diagrams and pictures drawn by hand; not necessarily carrying the same degree of probative force, but still of the same character; not in themselves evidence at all, but representing to the eye what the witness declares was the real appearance of the thing at the time he saw it. Diagrams, drawings, and photographs are resorted to only because the witness cannot with language as clearly convey to the minds of the court and jury the scene as the light printed it on the retina of his own eye at the time of which he is testifying.
It is necessary that a photograph offered to be introduced should be practically instructive as evidence, and whether it is so, or whether it has been sufficiently verified, is a preliminary question to be determined by the judge presiding at the trial. 17 Cyc. 415.
In the case at bar we do not see that the trial court erred in refusing to admit the photograph, Exhibit No. [678]*6781. The original photographs, which were in the hands of the witness when he was being examined, were not made exhibits to the record in this case and not sent up to us for our inspection. We have not therefore seen the photographs, and we cannot say, after a personal examination thereof, that the court erred in refusing to admit in evidence the photograph marked Exhibit No. 1.
We have considered all of the other assignments of error in this case and do not find any reasons for reversal in any of them.
Affirmed.