The opinion
Conley Byrd, Justice, dissenting. The only count upon which the jury found appellant Worley guilty was that he altered a $6,000 note signed by Mr. and Mrs. Ford to read $16,000. The main evidence upon which the State relied to show the alteration was the fact that the “1” in the figure $16,000 was not in line with the remainder of the figures. To counter this proof Worley sought to introduce, under the “Business Records as Evidence Act,” Ark. Stat. Ann. § 28-928 (Repl. 1962), other prior business transactions that had been prepared by his office manager, James Morrow, to show that the mis-location of the “1” was due to Morrow’s typing and not to a subsequent alteration. Among the records proffered was a draft to Gosnell Buick-Chev. Co. (attached hereto as an appendix) which shows that, on the typewriter used, the lower case “1” was also used as the numeral “1” and that in the figure $90.11 the 11^ was not in line with the remainder of the figures. Neither was the “11 ” in Gosnell in line with the remainder of the name Gosnell. At the time of trial Morrow was dead; thus, it became necessary to show that both the proffered records and the Ford note in question were prepared by the same man. To lay the foundation for that proof, Worley sought to prove the Gosnell Buick-Chev. Co. transaction to establish that the draft was made while Morrow worked for him. The trial court, without objection from the State, ruled such evidence hearsay and collateral and would not permit its introduction. Somehow, the majority says it is not relevant.
The hearsay ruling by the trial court was clearly erroneous. As pointed out in Frampton v. Hartzell, 179 Cal. App. 2d 771 , 4 Cal. Rptr. 427 (1960), it is true that business records are hearsay, but “nevertheless they are admissible as being an exception to the hearsay rule, hence an objection only that they are hearsay is not a valid objection.”
Neither can it be said that the proof offered is collateral or not relevant. The conduct of the jury leaves no doubt about the relevancy or materiality of the evidence — i.e. their desire to compare the typing on the note with other typing of Morrow is demonstrated by the following excerpt from the record:
“THEREUPON, after a period of deliberation by the Jury, the Jury returned into open court and with the defendant present the following proceedings were had:
THE COURT: Members of the Jury, I am advised by the bailiff that you have a question.
FOREMAN: Yes, Your Honor. The question came up to us, several members of the jury would like to see them other two notes, the first two six thousand dollar notes.
THE COURT: Only the evidence which has been introduced in this case is . . .
FOREMAN: They’re not, they’re not available?
THE COURT: They’re not introduced in this case, no, sir. Only the evidence which was introduced in this case may be submitted to the jury for your consideration.
JURY AGAIN RETIRES.”
The majority’s assertion that the records “simply were not proffered as evidence of any act, transaction, occurrence, or event of which they could be considered as a memorandum or record” is neither supported by the record nor the authorities upon which it relies. In McCormick on Evidence § 312 (2d ed. 1972), cited by the majority, it is stated:
“Implementing the common law exception, courts have traditionally required that one offering proof under the regularly kept records exception either call as witnesses all links in the organizational chain by which the entry was made, i.e., all entrants, informants, and intermediaries, or establish their unavailability. This was not part of the requirement of unavailability. To the contrary, it assumed that availability did not render the proof inadmissible, apparently on the reasonable anticipation that the participants would not remember the particular transaction at issue. The requirement was one as to the manner of proving that the offered record met the other requirements of the exception.
In light of present business practices, the common law requirement is clearly unreasonable. The complex nature of modern business organizations is such that all participants in the preparation of a record can most often not be identified or, if they can be pinpointed, could not reasonably be expected to have any helpful recollection concerning the specific transactions at issue. Moreover, production of the large numbers of participants that would be required would be a substantial burden on the offering party, a burden not likely to be justified by the benefits to be derived from requiring production of all participants. The revisions of the exception have dealt with this problem in various manners. The Commonwealth Fund Act did not deal with the matter expressly, although it seems clear that it was proposed principally to alleviate the burdensome method of proof required by some courts under the common law rule. The same is true of the Model Code of Evidence and the Uniform Rules of Evidence. On the other hand, the Uniform Act, the Texas statute, and the Proposed Federal Rules specifically provide that the foundation may be laid by ‘the custodian or other qualified witness’ thus expressly rejecting the requirement that all participants be called.”
In 5 Wigmore on Evidence § 1561a (Chadbourn rev. 1974), cited by the majority, we find the following comment:
“This proposed rule was after a long interval adopted by legislation in a few states; in Rhode Island, the attempt to improve upon it produced an inferior pedantic formulation. The liberal interpretation of it by courts should serve to give the exception a rational relation to the search for truth. But much depends on whether the preverse stolidity of the juristic mind can be compelled by a few statutory words to leave its accustomed ruts.”
Now, obviously, if Morrow had been alive, he could have been called to show that the records proffered were made on the dates in question in connection with the business transaction that they represented. Likewise, if the parties to the transactions, such as those at Gosnell Buick-Chev. Co., had been called, their testimony would have been relevant to show that the event represented by the record actually took place on that specific date. If the proof of those parties would have been permissible to show the events and the time of their occurrence; then, obviously, the records were admissible under the “Business Records as Evidence Act” as construed by the authorities cited in the majority opinion.
For the reason stated, I respectfully dissent.
Harris, C.J. and Holt, J., join in this dissent. [[Image here]]