Opinion
Docket No. 4,462.
Decided October 29, 1969.
Appeal from Recorder's Court of Detroit, George W. Crockett, Jr., J. Submitted Division 1 October 8, 1969, at Detroit. (Docket No. 4,462.) Decided October 29, 1969.
Nelson Archie Manier was convicted of indecent exposure of his person. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Tony Ferris, for defendant.
Before: FITZGERALD, P.J., and McGREGOR and V.J. BRENNAN, JJ.
The people's attempt to convict the defendant was conducted in a manner which necessitates reversal. Defendant appeals his conviction of violating MCLA § 750.335a (Stat Ann 1954 Rev § 28.567[1]), the indecent exposure of his person.
The facts presented on this appeal are not disputed by the parties. The record shows that complainant was working at a party store in Detroit on August 16, 1966. Between 10:30 and 11 p.m. she saw a car drive up to the curb in front of the store. Complainant turned her back to the street, and when she heard no one leave the car, she looked again into the street. It was at this time that she observed a man masturbating in the car. She got a final glimpse as she went outside to write down the license number. Immediately after the incident, she telephoned the police.
The complainant could not make a positive identification of the defendant at the showup. At trial, she purportedly made an identification, but admitted she could not identify him from a front view. A policewoman took the stand and testified that, based on the records of the police department, the license number received from complainant, which was included in the police report, indicated the car was owned by the defendant.
Assuming without deciding that the license number received from the complainant was not hearsay, other evidentiary violations have occurred. There was a need to correlate the license number in the police report and the owner of the car through appropriate records in order to connect the defendant with the car and, through that, with the crime. The officer sought to do this merely by checking the Detroit police records and making an oral report in the court. This testimony was objected to as hearsay. The people did not offer these written records.
It is clear that these public records are themselves hearsay evidence, but they are considered trustworthy because they are kept by public officials who are under sanction of oath of office. The correctness of these records is further assured, since they are subject to public scrutiny and the official may be made to correct his errors.
In addition, since the records themselves, or certified copies, were not produced and introduced, a violation of the "best evidence" rule took place. Briefly, this rule provides that to prove the contents of a writing, the original itself must be produced, unless it is shown to be unavailable. The rationale of the rule is that the possibility of fraud or mistake is substantially eliminated where the writing itself is produced. In Michigan, anyone seeking to prove ownership of an automobile could produce copies of official records as a matter of right. The motor vehicle code provides as follows:
"(a) Officers and employees of the department designated by the secretary of state for the purpose of administering the motor vehicle laws, shall administer oaths and acknowledge signatures without fee.
"(b) The secretary of state and such officers of the department as he may designate are hereby authorized to prepare under the seal of the department and deliver upon request a certified copy of any record of the department maintained by virtue of this act, charging a fee therefor as hereinafter provided, and every such certified copy shall be admissible in any proceeding in any court in like manner as the original thereof." (MCLA § 257.207 [Stat Ann 1968 Rev § 9.1907]).
Furthermore, the Revised Judicature Act explicitly provides for the use of official records as evidence. MCLA § 600.2107 (Stat Ann 1962 Rev § 27A.2107). It must be concluded that the admission of the policewoman's testimony in regard to the license number was error and necessitates a new trial.
Reversed and remanded.
All concurred.