People v. Braswell

• Decision Date: 26 August 1968
• Docket Number: No. 2,Docket No. 3857,2
• Citation: People v. Braswell, 163 N.W.2d 461, 12 Mich.App. 685 (Mich. App. 1968)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Augusta BRASWELL, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 461

163 N.W.2d 461

12 Mich.App. 685

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Augusta BRASWELL, Defendant-Appellant.

Docket No. 3857.

Court of Appeals of Michigan, Division No. 2.

Aug. 26, 1968.

Released for Publication Jan. 9, 1969.

Ronald H. Ring, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Lansing, Robert F. Leonard, Pros.Atty., Genesee County, Donald A. Kuebler, Asst. Pros.Atty., Genesee County, Flint, for plaintiff-appellee.

Before LESINSKI, C.J., and FOLEY^* and KAVANAGH, JJ.

T. G. KAVANAGH, Judge.

Defendant was convicted of carrying a concealed pistol without a license.C.L.1948, § 750.227(Stat.Ann.1962 Rev. § 28.424).At the trial the court admitted into evidence, over defendant's objection, a certified statement from the state police commissioner that no record existed showing defendant licensed to carry a concealed weapon.The statement was admitted under the authority of C.L.1948, § 28.201(Stat.Ann.1961 Rev. § 4.470), which provides:

'Copies, including photostatic copies, of all records and papers in the files of the Michigan state police, certified as true copies by the commissioner of the Michigan state police, shall be evidence in all cases equally and with like effect as the originals.A statement similarly certified as true by the commissioner of the Michigan state police that no records and papers are in the files of the Michigan state police with respect to a particular matter shall be evidence in all cases equally and with like effect as testimony to that effect by any member or employe of the Michigan state police.'

It is the duty of the state police commissioner to maintain a public record of all licenses issued to carry a concealed weapon.C.L.1948, § 28.426(Stat.Ann.1968 Cum.Supp. § 28.93).

Defendant argues that this certified statement is hearsay and, therefore, its admission as evidence denied her the right to be confronted by the witnesses against her and the opportunity to cross-examine as to the making and keeping of the records.

Where necessary to substantiate a fact with records, purely documentary in nature, certified copies authenticated by the official responsible for the maintenance of such records may be admitted as evidence.People v. Jones(1971), 24 Mich. 216.See5 Wigmore on Evidence (3d ed), § 1630 et seq.

Courts have been reluctant, however, to permit this valid exception to the hearsay rule to operate for official statements that No record exists.The position was taken that:

"When a party desires to prove the negative fact that there is no record, he must do so in the usual way,--by the deposition of the proper officer, or by producing him in court, so that he may be sworn and cross-examined as to the thoroughness of the search made.If the summoning of such officer to testify in relation to the public records at the call of a suitor shall be found impracticable, by reason of interfering with his public duties, the remedy must be found in further legislation."Burton v. Perry(Tex.Civ.App.1932), 53 S.W.2d 795, 797.

The Michigan statute cited, supra, allows for such negative statements by officials, as does the Federal rule of civil procedure, rule 44(b), which is incorporated by reference in the Federal rules of criminal procedure, rule 27, and which states:

'A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.'

In Matthews v. United States(C.A. 5, 1954), 217 F.2d 409, the court in discussing this Federal rule stated that:

'While the Sixth Amendment does not prevent creation of new exceptions to the hearsay rule based upon real necessity and adequate guarantees of trustworthiness, it does embody those requirements as essential to all exceptions to the rule, present or future.'p. 418.

In Kay v. United States(C.A. 4, 1958), 255 F.2d 476, the court said:

'The power of the Congress and of a state legislature to provide for the admission of evidence is not subject to any such arbitrary limitation as the defendant supposes.They may carve out a new exception to the hearsay rule, without violating constitutional rights, where there is reasonable necessity for it and where it is supported by an adequate basis for assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long established exceptions to the hearsay rule.'(pp. 480--481.)

The admissibility of a negative certification, that no...