State v. Rutherford, 36869

Citation66 Wn.2d 851,405 P.2d 719
Decision Date16 September 1965
Docket NumberNo. 36869,36869
CourtUnited States State Supreme Court of Washington
Parties, Blue Sky L. Rep. P 70,710 The STATE of Washington, Respondent, v. Wallace R. RUTHERFORD, Appellant.

Johnson, Griffin, Boyle & Ross,

Lawrence M. Ross, Tacoma, for appellant.

Joseph D. Mladinov, Special Counsel to Pros. Atty. of Pierce County, Tacoma (John G. McCutcheon, Pros. Atty., and Eugene G. Olson, Crim. Dep. Pros. Atty., of Pierce County, Tacoma, with him on the brief), for State of Washington.

ROSELLINI, Chief Justice.

The appellant was charged by amended information on eight counts of fraud in the sale of securities, for which criminal penalties are prescribed in RCW 21.20.400, and was found guilty on four counts. He has appealed from the judgment and sentence entered on the verdict.

It is first contended that the trial court erred in permitting the chief of materials testing for the Air Force at Tinker Field, Oklahoma, to testify as to the results of tests performed on 'Metal X,' the substance about which the fraudulent representations were alleged to have been made. The evidence showed that these tests had been performed at the request of the appellant, who was endeavoring to interest the Air Force in his product and had suggested procedures to be followed in testing. Mr. Spellman, the chief of testing, was in charge of a group called the Materials Branch, which consisted of approximately forty people--engineers and scientists, chemists, physicists, metallurgists and technicians. There was a Physical Testing Section and a Chemical Testing Section. Mr. Hopkins, who was in charge of the Physical Testing Section (under Mr. Spellman's supervision) had suffered a stroke and was unable to testify at the trial. Mr. Spellman was allowed to testify concerning reports made to him by Mr. Hopkins and others in the laboratory.

In testifying, Mr. Spellman referred to a report which he had made at the conclusion of the tests. This report was compiled from oral and written reports made to him by Mr. Hopkins and others who had participated in the testing procedures. The appellant's contention is that his testimony as to the results of the tests is hearsay, because he did not personally conduct the tests and could not be cross-examined on the procedures followed or testify of his own knowledge concerning what was done.

Under our Uniform Business Records Act, RCW 5.45.020, the report made by Mr. Spellman was admissible. That act provides:

A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

This act contemplates that such a record is presumptively reliable if it was made in the regular course of business and there was no apparent motive to falsify. Implicit in it is the presumption that an employee will do his duty. It does not require that the record should have been made by the person actually doing the act, but only that it should have been made in the regular course of business, under circumstances which the court finds rendered it trustworthy. In commenting on the desirability of such a rule of evidence, Professor Wigmore says:

No doubt much should be left to the discretion of the trial court; production (of witnesses) may be required for cross-examination, where the nature of the controversy seems to require it. But the important thing is to realize that upon principle there is no objection to regarding this situation as rendering in a given case the production of all the persons practically as impossible as in the case of death.

(4) The conclusion is, then, that Where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter persons, there is no objection to receiving that entry under the present Exception (to the hearsay rule), verified by the testimony of the former person only, or of a superior who testifies to the regular course of business, provided the practical inconvenience of producing on the stand the numerous other persons thus concerned would in the particular case outweigh the probable utility of doing so.

Why should not this conclusion be accepted by the Courts? Such entries are dealt with in that way in the most important undertakings of mercantile and industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise. Nor does the practical impossibility of obtaining constantly and permanently the verification of every employee affect the trust that is given to such books. It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by Courts of Justice. When it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the court-room. The merchant and the manufacturer must not be turned away remediless because methods in which the entire community places a just confidence are a little difficult to reconcile with technical judicial scruples on the part of the same persons who as attorneys have already employed and relied upon the same methods. In short, Courts must here cease to be pedantic and endeavor to be practical. 5 Wigmore, Evidence, § 1530 (3d ed. 1940).

And, by the same token, if the written record of the report should be admissible, as trustworthy evidence, why should not the person who made the record be permitted to testify to its contents? The appellant in this case has not given a single reason why the testimony should be considered untrustworthy and has ascribed...

To continue reading

Request your trial
32 cases
  • State v. Hacheney, No. 29965-8-II (WA 8/3/2005)
    • United States
    • Washington Supreme Court
    • August 3, 2005
    ...36. 52. State v. Kreck, 86 Wn.2d 112, 118, 542 P.2d 782 (1975). 53. Kreck, 86 Wn.2d at 118-19. 54. Kreck, 86 Wn.2d at 114. 55. 66 Wn.2d 851, 405 P.2d 719 (1965). 56. Rutherford, 66 Wn.2d at 57. Rutherford, 66 Wn.2d at 853. 58. Rutherford, 66 Wn.2d at 855. 59. 30 Wn. App. 313, 633 P.2d 933 (......
  • Kreck v. Spalding
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 13, 1983
    ...Business Records as Evidence Act, as interpreted in State v. Boehme, 71 Wash.2d 621, 430 P.2d 527 (1967), and State v. Rutherford, 66 Wash.2d 851, 405 P.2d 719 (1965). RCW 5.45.020 provides: A record of an act, condition or event, shall in so far as relevant, be competent evidence if the cu......
  • State v. Fleming
    • United States
    • Washington Court of Appeals
    • April 13, 2010
    ...course of business and there was no apparent motive to falsify. Ziegler, 114 Wash.2d at 538, 789 P.2d 79 (citing State v. Rutherford, 66 Wash.2d 851, 405 P.2d 719 (1965)). The trial court is not required to examine the person who actually made a record to admit the record under the business......
  • State v. Kreck
    • United States
    • Washington Supreme Court
    • November 20, 1975
    ...Business Records as Evidence Act, as interpreted in State v. Boehme, 71 Wash.2d 621, 430 P.2d 527 (1967), and State v. Rutherford, 66 Wash.2d 851, 405 P.2d 719 (1965). RCW 5.45.040 provides: A record of an act, condition or event, shall in so far as relevant, be competent evidence if the cu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT