285 N.C. 295 | N.C. | 1974
The first break in the solution of this case grew out of the interrogation of Robert Carmichael who was charged by warrant with the murder of Vanessa Lewis. The officers told Robert that James Brunson was pointing a finger at him. Robert then told the officers the story in substance as above recited. The interrogation of James Brunson brought his denial of any implication in or knowledge of the crimes committed against Vanessa Lewis. He claimed he was playing basketball and went from the basketball court to his classes at a time when it would have been impossible for him to have been present at the time the crimes were committed. James Carmichael and Charles Davis corroborated his story. They were testifying one year after the events. However, each said he remembered because he heard of Vanessa’s death near the school on the day it occurred.
In this setting, the school attendance record of James Brun-son on February 22, 1972, would be of material benefit to the defendant if it disclosed that on that day he was present at the school and not tardy. The discussion between the court and Mrs. West about the school attendance record discloses that she and the trial judge were communicating on different wave lengths. The school record showed a five day week. Hence, in order for the witness to identify February 22, 1972, on the school calendar, it was necessary for her to refer to the regular monthly calendar for that month. The first school day in the month of February, 1972, began on Tuesday. Omitting the Saturdays and Sundays (non-school days) the 22nd day of February was the 16th school day of that month.
The monthly school attendance record for each pupil was prepared by the school authorities and sent to the school at the beginning of the month. This record contained a space for each school day (omitting Saturdays, Sundays, and school holidays) to be filled in indicating whether the pupil was present, tardy, or absent. If the student was present and on time, the space on
Mrs. West testified the school attendance record for February, 1972, began on the 8th, indicating the first week was the midterm break. In that event, relating the school record to the regular calendar, February 22nd would be the eleventh school'day; so that the record of James Brunson for February 22nd, assuming the week of vacation, would be contained in the eleventh space on the school record.
The trial judge excluded the school record because it was necessary for Mrs. West to check the regular calendar in order to relate the attendance record to that date. The court refused to permit Mrs. West to refer to the regular calendar or to testify to the jury about the record. The court ruled: “The State’s objection is sustained as to this witness,” the objection being that Mrs. West sought to correlate the school attendance record with the calendar.
The law requires the courts to take judicial notice of the days, weeks, and months of the calendar. “The courts take judicial notice of the day of the week upon which any day of the month falls. ... It is generally held that the courts are bound to take judicial notice of what days are legal holidays.” 29 Am. Jur. 2d, Evidence, § 99, 130. Smith v. Kinston, 249 N.C. 160, 105 S.E. 2d 648; Dowdy v. R. R., 237 N.C. 519, 75 S.E. 2d 639; State v. Anderson, 228 N.C. 720, 47 S.E. 2d 1; State v. Vick, 213 N.C. 235, 195 S.E. 779; 123 A.L.R. 1242.
“Courts will judicially notice the things properly belonging to an almanac. The courts take judicial notice of the calendar and of the periods within the calendar. They take judicial notice of the computation of time, the subdivision of the year into*303 months, weeks, and days, the days of the week, the order of succeeding days of the week, the number of days in a month, the coincidence of days of the week with days of the month, and of the days of the month with those of the year.” 31A C.J.S., Evidence, § 100, 148-149. See also State v. Anderson, supra.
The defendant’s school attendance record, a photostat of which Mrs. West had with her in court, enabled her to identify the defendant’s attendance record showing that on February 22, 1972, he was neither absent nor tardy. The objections of the trial judge indicate his view that the attendance record should have been authenticated by the teacher who made it and not by the official custodian of the attendance records for the entire Fayetteville school system and that reference to the calendar was impermissible.
There was a time, long ago, when the keeping of records was simple and limited in scope. Now, almost every business or governmental function is a matter of detailed record. Now record keeping extends to all essential public, semi-public, and priváte businesses. The value of these records arises from the fact that they are made at the time when the events recorded are fresh in the minds of the persons who made them. They are intended to be a testimonial for future use. The larger the scope of the business, the greater the need for permanent records. An unreliable record would indicate a mistake or an intent to deceive. As the practice of keeping records has expanded, the courts more and more have liberalized the rules governing their admission as evidence in court proceedings. Glenn v. Orr, 96 N.C. 413, 2 S.E. 538; Turnpike Co. v. M’Carson, 18 N.C. 306.
In the landmark case of Insurance Co. v. R. R., 138 N.C. 42, 50 S.E. 452, Justice Connor, speaking of book entries, said: “ ‘Shall this proof be received, or shall the plaintiffs be compelled to go behind the books thus verified by the clerks who kept them, and resort to each of the subagents who participated in the transaction and sale of this produce? Are not the entries thus made in the usual course of business of this extensive trading establishment, and as a part of the proper employment of the witnesses who prove them, not only the best, but the only reliable evidence which it is practicable to procure?’ ”
In the Brandis Revision of Stansbury’s North Carolina Evidence, § 155, this appears: “If the entries were made in the
The rule with respect to entries in the course of business applies to governmental agencies. “Operations of instrumentalities of government including federal, state, and county agencies, constitute ‘business’ within statute permitting admission of records made in the regular course of business. La Porte v. U.S., C.A. Cal., 300 F. 2d 878, 880.
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“The word ‘business’ . . . whether in form of an entry in a book or otherwise ... is admissible in proof thereof, if made in regular course of any ‘business,’ includes business, profession, occupation and calling of every kind. Snyder v. Cearfoss, 57 A. 2d 786, 790, 190 Md. 151.” 5A Words and Phrases, “Business,” at 663.
Defendant’s attendance record, Exhibit 2, does not appear in the case on appeal. This Court of its own motion issued a writ of certiorari directing that the superior court certify Exhibit 2 as a part of our record. The Superior Court of Cumberland County answered the writ saying the exhibit was not allowed in evidence and was not in possession of the court.
The discussion between the court and Mrs. West was on the voir dire at the conclusion of which the court stated: “The State’s objection is sustained as to this witness [Mrs. West].” The ruling is challenged by Exception No. 6 and discussed in the brief as Assignment of Error 6.
Obviously, the school attendance record made at the time showing that James Brunson was neither absent nor tardy, but was present in school on the morning of February 22, 1972, would be of probative value on a controverted issue of fact. The court should have permitted the custodian of the attendance records to use the regular calendar for February, 1972, and to point out to the jury the relationship between the attendance record and the February calendar, indicating that the attendance record showed the defendant neither absent nor tardy on that critical day.
The exclusion of that record was prejudicial error. The Court orders that there be a
New trial.
