The Court of Criminal Appeals ruled that, although the nature of the charge against the defendant was stated in the indictment, the facts relating to the offense were not stated specifically enough "to enable the defendant to prepare her defense." The court based its decision on Pierce v. State, 42 Ala. App. 53, 151 So.2d 793 (1963). Pierce was charged with fraudulently obtaining unemployment benefits.

The trial court cannot be put in error for not admitting into evidence an exhibit the admissibility for which no proper predicate was laid. Code of Alabama 1940, (Recompiled 1958) Title 7, Section 415; Meriwether v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780; Powell v. Atlantic Coast Line R. R. Co., 274 Ala. 533, 150 So.2d 179; Bear v. Swift, 259 Ala. 668, 68 So.2d 718; Pierce v. State, 42 Ala. App. 53, 151 So.2d 793; McElroy, The Law of Evidence in Alabama (2nd Ed.) Vol. 2, § 254.01, pp. 253-260. The Business Records Act does not operate to admit evidence which is inherently inadmissible.

Additionally, the list was not 'under [his] care, custody and control,' nor 'kept in the regular course of business under [his] care, custody and control.' (R. 476). Turner had no personal knowledge as to the record keeping practices of the airlines; his knowledge was limited to his 'beliefs' and what's usually happened. (R. 476). Turner's knowledge was not adequate to authenticate the document as a business records exception to the hearsay rule, and the document should not have been submitted. C. Gamble, McElroy's Alabama Evidence, § 254.01(3) (3rd Ed. 1977). See also Pierce v. State, 42 Ala. App. 53, 56, 151 So.2d 793 (1963). The admission of that list which was not probative of any element of the crime charged, as an exception to the hearsay rule resulted in the violation of Appellant's Fourteenth Amendment rights to due process and a fair trial, and thus his conviction must be reversed.

"Business records are admissible in both civil and criminal cases. McElroy's Alabama Evidence, Section 254(6) (Third Edition 1977); Patterson v. State, 262 Ala. 684, 81 So.2d 349 [1955]; Pierce v. State, 42 Ala. App. 53, 151 So.2d 793 [1963]."

Although the nature of the charge against the appellant is stated in the indictment, the facts relating to the offense are not specific enough "to enable the defendant to prepare for her defense." In spite of the state's argument to the contrary, we have found no way to distinguish this case from Pierce v. State, 42 Ala. App. 53, 151 So.2d 793 (1963). The indictment in Pierce stated as follows:

" In support of appellant's only contention for a reversal, her attorney relies upon Pierce v. State, 42 Ala. App. 53, 151 So.2d 793 (1963) and Morningstar v. State, 52 Ala. 405 (1875). In Morningstar v. State, it was held that defendant's demurrer to an indictment for larceny on the ground that it did not name, describe or identify the victim or allege that the victim's name or identity was unknown otherwise than as stated in the indictment, was erroneously overruled by the trial court, and for that reason the case was reversed.

Bear v. Swift Co., 259 Ala. 668, 68 So.2d 718 (1953). The principle applies to criminal cases also. Pierce v. State, 42 Ala. App. 53, 151 So.2d 793 (1963); Headley v. State, 51 Ala. App. 148, 283 So.2d 458 (1973). While defendant was testifying as to an incident between him and his wife a few days before she was killed, the following occurred:

Business records are admissible in both civil and criminal cases. McElroy's Alabama Evidence, Section 254 (6) (Third Edition 1977); Patterson v. State, 262 Ala. 684, 81 So.2d 349; Pierce v. State, 42 Ala. App. 53, 151 So.2d 793. The rights of appellant were not violated by his inability to cross-examine the person making the entry in the business record.

Whether oral testimony by a police officer respecting a statement by defendant was admissable when the statement was recorded, and defendant understood and was informed that it was being recorded, on a tape which was, however, unavailable at trial. Pierce v. State, 42 Ala. App. 53, 151 So.2d 793; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694; 29 Am.Jur.2d, Evidence, §§ 437 and 448. William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.

Every element of a crime must be proven by the highest and best evidence, which the prosecution is capable of producing. Jordan v. Copeland, 272 Ala. 336, 131 So.2d 696; Motor Sales Corp. v. Wisdom, 209 Ala. 242, 96 So. 68; Pierce v. State, 42 Ala. App. 53, 151 So.2d 793. A defendant is entitled to the affirmative charge, upon request when the prosecution has failed to present a prima facie case. Barnett v. State, 21 Ala. App. 646, 111 So. 321; Buffington v. State, 38 Ala. App. 370, 83 So.2d 606.