2020 Georgia Code
Title 24 - Evidence
Chapter 8 - Hearsay
Article 1 - General Provisions
§ 24-8-803. Hearsay Rule Exceptions; Availability of Declarant Immaterial

The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness:

1. Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter;
2. Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition;
3. Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless such statements relate to the execution, revocation, identification, or terms of the declarant's will and not including a statement of belief as to the intent of another person;
4. Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment;
5. Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party;
6. Records of regularly conducted activity. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. The term "business" as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports shall be admissible under paragraph (8) of this Code section and shall not be admissible under this paragraph;
7. Absence of entry in records kept in accordance with paragraph (6) of this Code section. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6) of this Code section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness;
8. Public records and reports. Except as otherwise provided by law, public records, reports, statements, or data compilations, in any form, of public offices, setting forth:
   1. The activities of the public office;
   2. Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation; or
   3. In civil proceedings and against the state in criminal proceedings, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness;
9. Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law;
10. Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office, evidence in the form of a certification in accordance with Code Section 24-9-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry;
11. Records of religious organizations. Statements of birth, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization;
12. Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified and purporting to have been issued at the time of the act or within a reasonable time thereafter;
13. Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like;
14. Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable law authorizes the recording of documents of that kind in such office;
15. Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document;
16. Statements in ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established;
17. Market reports and commercial publications. Market quotations, tabulations, lists, directories, or other published compilations generally used and relied upon by the public or by persons in the witness's particular occupation;
18. Learned treatises. To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets, whether published electronically or in print, on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. If admitted, the statements may be used for cross-examination of an expert witness and read into evidence but shall not be received as exhibits;
19. Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage or among a person's associates or in the community concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of the person's personal or family history;
20. Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community or state or nation in which such lands are located;
21. Reputation as to character. Reputation of a person's character among associates or in the community;
22. Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty but not upon a plea of nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but shall not affect admissibility; or
23. Judgment as to personal, family, or general history or boundaries. Judgments as proof of matters of personal, family, or general history or boundaries essential to the judgment, if the same would be provable by evidence of reputation.

(Code 1981, §24-8-803, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Classification of confidential and privileged materials from department and county boards of health, § 31-5-5.

Certified copies of vital records, § 31-10-26.

Acquiescence as establishing dividing line in real property, § 44-4-6.

Transmittal of copy of exempted real property to other counties and recordation, § 44-13-11.

Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness, Fed. R. Evid. 803.

- For article advocating admissibility of business entries, see 14 Ga. B.J. 7 (1951). For article analyzing Georgia business entries provisions, see 4 Mercer L. Rev. 313 (1953). For article discussing exceptions to the hearsay rule and advocating elimination of the res gestae exception, see 5 Mercer L. Rev. 257 (1954). For article, "Business Entries as Evidence," see 16 Ga. B.J. 383 (1954). For article, "Decisions Under the Georgia Business Records Act of 1952," see 21 Ga. B.J. 211 (1958). For article, "Evidence from Computers," see 8 Ga. L. Rev. 562 (1974). For article, "The Demise of the Corroboration Requirement - Its History in Georgia Rape Law," see 26 Emory L.J. 805 (1977). For article, "The Admissibility of Computer-Generated Evidence in Georgia," see 18 Ga. St. B.J. 137 (1982). For article, "The Need For a Special Exception to the Hearsay Rule in Child Sexual Abuse Cases," see 21 Ga. St. B.J. 50 (1984). For article, "An Interdisciplinary Analysis of Statements to Mental Health Professionals Under the Diagnosis or Treatment Hearsay Exception," see 33 Ga. L. Rev. 353 (1999). For article, "Evidence," see 53 Mercer L. Rev. 281 (2001). For article, "State of Emergency: Why Georgia's Standard of Care in Emergency Rooms is Harmful to Your Health," see 45 Ga. L. Rev. 275 (2010). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article, "Georgia's New Evidence Code: After the Celebration, a Serious Review of Anticipated Subjects of Litigation to be Brought on by the New Legislation," see 64 Mercer L. Rev. 1 (2012). For annual survey on evidence law, see 64 Mercer L. Rev. 137 (2012). For annual survey on insurance law, see 64 Mercer L. Rev. 151 (2012). For article, "Symposium on Evidence Reform: The Curious Case of Differing Literary Emphases: The Contrast Between the Use of Scientific Publications at Pretrial Daubert Hearings and at Trial," see 47 Ga. L. Rev. 837 (2013). For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013). For annual survey of evidence law, see 67 Mercer L. Rev. 63 (2015). For article, "2014 Georgia Corporation and Business Organization Case Law Developments," see 20 Ga. St. Bar. J. 26 (April 2015). For annual survey on evidence law, see 71 Mercer L. Rev. 103 (2019). For note discussing res gestae, see 3 Ga. B.J. 69 (1940). For note, "Hypnosis in Court: A Memory Aid for Witnesses," see 1 Ga. L. Rev. 268 (1967). For comment on Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 99 S.E.2d 370, 374 (1957), holding that the Georgia business records as evidence statute does not authorize the introduction into evidence of papers containing the opinion of experts or physicians when the party in whose interest the papers are offered is not allowed to examine their author, see 20 Ga. B.J. 381 (1958). For comment on Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 392, 103 S.E.2d 130 (1958), see 22 Ga. B.J. 100 (1959). For comment on Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959), see 22 Ga. B.J. 380 (1960). For comment on Argonaut Ins. Co. v. Allen, 123 Ga. App. 741, 182 S.E.2d 508 (1971), upholding admission of psychiatric opinion based on subjective declarations of patient, see 8 Ga. St. B.J. 554 (1972).

ANALYSIS

• General Consideration
• Res Gestae; Present Sense Impression and Excited Utterance
• a. Accounts
• b. Agents
• c. Assignments
• d. Bystanders
• e. Children
• f. Criminal Law - Defendants
• g. Criminal Law - Investigating Officers
• h. Criminal Law - Other Crimes
• i. Criminal Law - Victims
• j. Donors
• k. Employees
• l. Opinions
• m. Personal Injuries
• n. Principal and Surety
• o. Sales
• p. Transcripts
• q. Wills
• Statements for Medical Diagnosis/Treatment
• Business Records
• a. Foundation for Admission
• b. Weight and Credibility
• c. Objections
• Recorded Recollections
• Public Records and Reports
• Interest in Property
• Ancient Documents
• Ancient Boundaries and Landmarks
• Proof of Pedigree

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1812, Cobb's 1851 Digest, p. 167, former Laws 1827, Cobb's 1851 Digest, p. 172, former Laws 1841, Cobb's 1851 Digest, p. 178, former Ga. L. 1855-56, p. 143, § 1, former Code 1863, §§ 1960, 2659, 2674, 3696, 3702, 3773, 3790, former Code 1868, §§ 1948, 2658, 2670, 3720, 3726, 3810, former Code 1873, §§ 1958, 2700, 2712, 3773, 3779, 3866, former Code 1882, §§ 1958, 2712, 3772, 3773, 3779, 3866, former Civil Code 1895, §§ 998, 2782, 3610, 3628, 5177, 5179, 5184, 5185, 5284, 5766, former Penal Code 1895, §§ 998, 1020, former Civil Code 1910, §§ 3261, 4190, 4210, 5764, 5766, 5771, 5772, 5873, former Penal Code 1910, §§ 1024, 1046, former Code 1933, §§ 29-112, 29-415, 38-303, 38-305, 38-311, 38-312, 38-313, 38-315, 38-1707, 67-110, 85-1602, 93-504, Ga. L. 1952, p. 177, §§ 1, 2, 3, Ga. L. 1953, Jan.-Feb. Sess., p. 602, § 19, and former O.C.G.A. §§ 24-3-3,24-3-4,24-3-9,24-3-11,24-3-12,24-3-13,24-3-14,24-9-69,44-2-23,44-5-45,44-14-38,45-16-43, and46-2-53 are included in the annotations for this Code section.

In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Section 24-9-924, which may also be applicable to this Code section.

- To bring a declaration within the exception of the res gestae, the declaration must grow out of the main fact; the declaration must serve to illustrate the fact, and the declaration must be made contemporaneously with the fact. When these things are true of declarations, the declarations are provable, not as the testimony of the declarant, but as partaking of the nature of facts. Mitchum v. State, 11 Ga. 615 (1852) (decided under former law).

Declarations of a party to be admitted as part of the res gestae must be at the time of the transaction the declarations are intended to explain, must be calculated to unfold its nature and quality, and must harmonize with it. Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915) (decided under Penal Code 1910, § 1024); Wallace v. State, 151 Ga. App. 177, 259 S.E.2d 172 (1979);(decided under former Code 1933, § 38-305).

To satisfy the standards of the former statute, the exclamation must be contemporaneous, voluntary, and made at a time which indicated the lack of deliberation and deception. Gaines v. State, 232 Ga. 727, 208 S.E.2d 798 (1974) (decided under former Code 1933, § 38-305).

- Proper res gestae evidence was admissible without having to follow the rules regarding prior similar transactions, as nothing in Ga. Unif. Super. Ct. R. 31.3(E) was intended to prohibit the state from introducing evidence of similar transactions or occurrences which were immediately related in time and place to the charge being tried, as part of a single, continuous transaction. White v. State, 282 Ga. App. 286, 638 S.E.2d 426 (2006) (decided under former O.C.G.A. § 24-3-3).

When an act is material, declarations accompanying the act are admissible as part of the res gestae. Atlanta & W. Point R.R. v. Truitt, 65 Ga. App. 320, 16 S.E.2d 273 (1941) (decided under former Code 1933, § 38-305).

- Declarations as parts of the res gestae, made at the time of the transaction, are regarded as verbal acts, indicating a present purpose and intention, and are therefore admitted in proof like any other material facts. Jones v. State, 62 Ga. App. 734, 9 S.E.2d 707 (1940) (decided under former Code 1933, § 38-305).

- Declarations made by a party in the party's own favor, to be admissible as part of the res gestae, must be such as were contemplated by former statute. Rutland v. Hathorn, 36 Ga. 380 (1867) (decided under former Code 1863, § 3696).

- It was incumbent on a party seeking to introduce hearsay evidence, as part of the res gestae to prove that the declarations testified to were so nearly connected with the transaction under investigation, in point of time, as to be free from any suspicion of device or afterthought. Taylor v. State, 120 Ga. 857, 48 S.E. 361 (1904) (decided under former Penal Code 1895, § 998); Pool v. Warren County, 123 Ga. 205, 51 S.E. 328 (1905); Smith v. State, 10 Ga. App. 840, 74 S.E. 447 (1912) (decided under former Penal Code 1895, § 998);(decided under former Penal Code 1910, § 1024).

Four current generally prevalent exceptions that used to fall under the label "res gestae" are declarations of present bodily condition, declarations of present mental state or emotion, excited utterances, and present sense impressions. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984) (decided under former O.C.G.A. § 24-3-3).

Denying defendant opportunity to impeach statements of child sodomy victim was harmless error since the child's declaration was not the sole evidence of the crime and the evidence did not show that the child had any measure of dealings with members of the community at large which would subject the child to the formation of public opinion about the child's veracity. Brantley v. State, 177 Ga. App. 13, 338 S.E.2d 694 (1985) (decided under former O.C.G.A. § 24-3-3).

- In a medical malpractice action, there was no basis to find that the Katz Committee Findings fell within the scope of the learned treatise exception to the hearsay rule because that exception did not expressly reference that type of document. Moore v. Wellstar Health Sys., 349 Ga. App. 834, 824 S.E.2d 787 (2019).

Cited in Mashburn Constr., L.P. v. CharterBank, 340 Ga. App. 580, 798 S.E.2d 251 (2017); Rabun v. Rabun, 341 Ga. App. 878, 802 S.E.2d 296 (2017); Gonzalez v. State, 352 Ga. App. 83, 833 S.E.2d 727 (2019).

Res Gestae; Present Sense Impression and Excited Utterance

1. Res Gestae Defined

It is impossible to define res gestae so as to adequately cover all the various and different uses to which it is put. Walker v. State, 137 Ga. 398, 73 S.E. 368 (1912) (decided under former Civil Code 1910, § 5766).

Idea of res gestae presupposes a main fact, or principal transaction. Townsend v. State, 127 Ga. App. 797, 195 S.E.2d 474 (1972) (decided under former Code 1933, § 38-305).

What is res gestae of a given transaction must depend upon its own peculiarities of character and circumstances. Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915) (decided under former Civil Code 1910, § 5766); Wallace v. State, 151 Ga. App. 171, 259 S.E.2d 172 (1979);(decided under former Code 1933, § 38-305).

Res gestae are events speaking for themselves, through the instinctive words and acts of participants, but are not the words and acts of participants when narrating the events. Jones v. State, 62 Ga. App. 734, 9 S.E.2d 707 (1940) (decided under former Code 1933, § 38-305).

Res gestae refers to oral declarations of a spontaneous nature which would otherwise be inadmissible hearsay evidence. Fountain v. State, 136 Ga. App. 229, 220 S.E.2d 705 (1975) (decided under former Code 1933, § 38-305).

Witnesses' testimony regarding what the girls said defendant told the girls to do was not impermissible "double hearsay", as defendant's directions to the girls about what the defendant wanted the girls to do were an integral part of the defendant's offenses and were thus admissible as part of res gestae. Gibby v. State, 213 Ga. App. 20, 443 S.E.2d 852 (1994) (decided under former O.C.G.A. § 24-3-3).

Res gestae is not limited to the codal restriction of "declarations." Townsend v. State, 127 Ga. App. 797, 195 S.E.2d 474 (1972) (decided under former Code 1933, § 38-305).

- Acts and circumstances forming a part of the continuation of the main transaction are admissible as res gestae. Floyd v. State, 143 Ga. 286, 84 S.E. 971 (1915) (decided under former Penal Code 1910, § 1024); Black v. State, 154 Ga. App. 441, 268 S.E.2d 724 (1980);(decided under former Code 1933, § 38-305).

Circumstances, acts, and declarations growing out of main fact, and contemporaneous with the main fact, and which serve to illustrate its character, are part of res gestae. Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915) (decided under former Civil Code 1910, § 5766); Waller v. State, 80 Ga. App. 488, 56 S.E.2d 491 (1949); Townsend v. State, 127 Ga. App. 797, 195 S.E.2d 474 (1972) (decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305).

Rape conviction was upheld on appeal as the defendant was not entitled to a new trial based on defense counsel's failure to object to certain testimony from the victim about the defendant's history of selling drugs and failure to subpoena certain medical records; moreover, the defendant was properly denied a mistrial as the trial court issued a curative instruction regarding the alleged improper character evidence admitted, and thereafter polled the jury to ensure that jurors would in fact disregard that evidence. Mitchell v. State, 287 Ga. App. 517, 651 S.E.2d 821 (2007) (decided under former O.C.G.A. § 24-3-3).

Because the state was entitled to present evidence of the entire res gestae of the crime, other criminal acts committed by defendant on the same night as a robbery were relevant under former O.C.G.A. § 24-3-3 to show defendant's frame of mind in the time period immediately preceding and following the crimes. Waters v. State, 294 Ga. App. 442, 669 S.E.2d 450 (2008) (decided under former O.C.G.A. § 24-3-3).

2. Time Requirements

Verbal act doctrine.

- Part of former statute which admitted "declarations accompanying an act" in evidence as a part of the res gestae was but a codification of the principal of the "verbal act doctrine." Glens Falls Indem. Co. v. Gottlieb, 80 Ga. App. 634, 56 S.E.2d 799 (1949) (decided under former Code 1933, § 38-305).

- Test of determining whether statements are a part of the res gestae is: were the declarations a part of the occurrence to which they relate, or were the declarations a mere narrative concerning something which had fully taken place, and had therefore become a thing of the past. Hunter v. State, 147 Ga. 823, 95 S.E. 668 (1918) (decided under former Civil Code 1910, § 5766); Hodge v. American Mut. Liab. Ins. Co., 57 Ga. App. 403, 195 S.E. 765 (1938); Berry v. Dinsmore, 115 Ga. App. 256, 154 S.E.2d 653 (1967) (decided under former Code 1933, § 38-305); Augusta Coach Co. v. Lee, 115 Ga. App. 511, 154 S.E.2d 680 (1967); Clark v. State, 142 Ga. App. 851, 237 S.E.2d 459 (1977) (decided under former Code 1933, § 38-305); Wallace v. State, 151 Ga. App. 171, 259 S.E.2d 172 (1979); Doughty v. State, 175 Ga. App. 317, 333 S.E.2d 402 (1985) (decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305);(decided under former O.C.G.A. § 24-3-3).

Trial court did not err in admitting, pursuant to the res gestae exception to the hearsay rule, the testimony of a police officer about the victim's oral statement to the officer and the victim's written statement that the victim made a few moments after making the oral statement, as both statements by the victim were made at a time when the victim was still under the influence of defendant's kidnapping of the victim and the victim's children; indeed, at the time the victim made the statements, the victim was still visibly shaken, and the victim's face was red, puffy, and swollen. White v. State, 265 Ga. App. 117, 592 S.E.2d 905 (2004) (decided under former O.C.G.A. § 24-3-3).

- Declarations to be a part of the res gestae must be contemporaneous with the main fact the declarations are intended to explain. If the declarations are made after the transaction, and therefore not contemporaneous with it, such declarations are a mere narrative of the past occurrence. Thomas v. State, 67 Ga. 460 (1881) (decided under former Code 1873, § 3773); Sullivan v. State, 101 Ga. 800, 29 S.E. 16 (1897);(decided under former Civil Code 1895, § 998).

Res gestae of a transaction is what is done during the progress of the transaction, or so nearly upon the actual occurrence as fairly to be treated as contemporaneous with the transaction. Hall v. State, 48 Ga. 607 (1873) (decided under former Code 1873, § 3773); Lyles v. State, 130 Ga. 294, 60 S.E. 578 (1908); Walker v. State, 137 Ga. 398, 73 S.E. 368 (1912) (decided under former Penal Code 1895, § 998); Hunter v. State, 147 Ga. 823, 95 S.E. 668 (1918);(decided under former Penal Code 1910, § 998);(decided under former Penal Code 1910, § 998).

Testimony of a police officer regarding an eyewitness statement to the police at the scene that the defendant was driving in the left lane and that the plaintiff drove into the side of the truck after "not really stopping" in the median was admissible as part of the res gestae exception to the hearsay rule. Cleveland v. Bryant, 236 Ga. App. 459, 512 S.E.2d 360 (1999) (decided under former O.C.G.A. § 24-3-3).

- Declarations, to be a part of the res gestae must be contemporaneous with the main fact, but to be contemporaneous, the declarations are not required to be precisely concurrent in point of time. Mitchum v. State, 11 Ga. 615 (1852) (decided under former law).

Declarations to be part of the res gestae need not be precisely concurrent in point of time, if the declarations spring out of the transaction and are made so near to it as to preclude reasonably the idea of deliberation. Walker v. State, 139 Ga. 398, 73 S.E. 368 (1912) (decided under former Penal Code 1910, § 1024).

Declarations, to be a part of the res gestae, must be contemporaneous with the main fact but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if the declarations elucidate the transaction, if voluntary and if made at such time as reasonably to exclude the idea of design. Brown v. City of Fitzgerald, 177 Ga. App. 859, 341 S.E.2d 476 (1986) (decided under former O.C.G.A. § 24-3-3).

- Main fact or transaction from which the res gestae springs is not necessarily limited as to time; it may be a length of time in the action. Townsend v. State, 127 Ga. App. 797, 195 S.E.2d 474 (1972) (decided under former Code 1933, § 38-305).

- Evidence relating to an attempted cocaine deal that failed to materialize was admissible since the attempted deal was part of a continuous transaction. Brewer v. State, 224 Ga. App. 656, 481 S.E.2d 608 (1997) (decided under former O.C.G.A. § 24-3-3).

- Principal point to be observed in all cases is whether the declarations offered in proof were contemporaneous with the main fact under consideration; for if the declarations are merely the narrative of a past occurrence, the declarations cannot be received in evidence. Bulter v. Stewart, 112 Ga. App. 293, 145 S.E.2d 47 (1965) (decided under former Code 1933, § 38-305).

- Each case turns on its own circumstances. Indeed, the inquiry is rather into events, than into the precise time which has elapsed. Hall v. State, 48 Ga. 607 (1873) (decided under former Code 1873, § 3773); Lyles v. State, 130 Ga. 294, 60 S.E. 578 (1908); Walker v. State, 137 Ga. 398, 73 S.E. 368 (1912) (decided under former Penal Code 1895, § 998); Hunter v. State, 147 Ga. 823, 95 S.E. 668 (1918); O'Neal v. State, 172 Ga. 526, 158 S.E. 51 (1931) (decided under former Penal Code 1910, § 1024); Dye v. State, 218 Ga. 330, 127 S.E.2d 674 (1962); Bunn v. State, 144 Ga. App. 879, 243 S.E.2d 105 (1978) (decided under former Penal Code 1910, § 1024); Wallace v. State, 151 Ga. App. 171, 259 S.E.2d 172 (1979);(decided under former Penal Code 1910, § 1024);(decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305).

- In determining whether declarations should be received as a part of the res gestae of an occurrence, the mere question of the lapse of time is not controlling. Berry v. Dinsmore, 115 Ga. App. 256, 154 S.E.2d 653 (1967) (decided under former Code 1933, § 38-305); Augusta Coach Co. v. Lee, 115 Ga. App. 511, 154 S.E.2d 689 (1967);(decided under former Code 1933, § 38-305).

- Ultimate test of whether a statement is part of the res gestae is the statement's spontaneity and logical relation to the main event, that is, if it is a natural and probable consequence from the act contemporaneous with the main fact, but it need not be precisely concurrent in point of time. C.A.J. v. State, 127 Ga. App. 813, 195 S.E.2d 225 (1973) (decided under former Code 1933, § 38-305).

- If the declarations appear to spring out of the transaction, if the declarations elucidate the transaction, if the declarations are voluntary and spontaneous, and if the declarations are made at a time so near to the transaction as reasonably to preclude the idea of deliberate design, then are the declarations to be regarded as contemporaneous. Southern Ry. v. Brown, 126 Ga. 1, 54 S.E. 911 (1906) (decided under former Civil Code 1895, § 5179); Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915); Hodge v. American Mut. Liab. Ins. Co., 57 Ga. App. 403, 195 S.E. 765 (1938) (decided under former Civil Code 1910, § 5766); Aetna Life Ins. Co. v. Jones, 80 Ga. App. 472, 56 S.E.2d 305 (1949); Clark v. State, 142 Ga. App. 851, 237 S.E.2d 459 (1977) (decided under former Code 1933, § 38-305); Wallace v. State, 151 Ga. App. 171, 259 S.E.2d 172 (1979);(decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305).

- Sayings were not admissible as a part of the res gestae if it appeared from the evidence that the statements were uttered at an indefinite time after the happening of the thing to which the statements related. Sims v. Macon & W.R.R., 28 Ga. 93 (1859) (decided under former law).

Trial court did not err by excluding testimony of a disabled child's mother that the child told the mother that a special education paraprofessional had sexually molested the child because the plaintiffs were unable to establish when the statements were made in relation to the alleged event. Harper v. Patterson, 270 Ga. App. 437, 606 S.E.2d 887 (2004) (decided under former O.C.G.A. § 24-3-3).

- Statements to a police officer by the victim in a prosecution for battery which were made three-and-one-half hours after the incident and which bore no mark of spontaneity or other such state of mind undeniably free of conscious device or afterthought were not part of the res gestae; as pure hearsay, the statements were inadmissible since the state did not show "necessity," to wit, that the declarant was unavailable and that it made reasonable efforts to secure the presence of the declarant. Wilbourne v. State, 214 Ga. App. 371, 448 S.E.2d 37 (1994) (decided under former O.C.G.A. § 24-3-3).

- Two statements made by defendant's wife, one four hours after the incident and the second four hours later, were part of the res gestae since the statements were made while she was still laboring under the excitement and strain of the event. Park v. State, 230 Ga. App. 274, 495 S.E.2d 886 (1998) (decided under former O.C.G.A. § 24-3-3).

- Statements a deceased witness had made to police at a murder scene were to assist the police in an ongoing emergency and were nontestimonial; therefore, the Confrontation Clause was not applicable. Although 20 minutes had elapsed between the time the witness discovered the victim's bloody body and the statements to police, the statements were admissible under the excited utterances exception to the hearsay rule, O.C.G.A. § 24-8-803(2), because the witness was still traumatized. McCord v. State, 305 Ga. 318, 825 S.E.2d 122 (2019).

- Statement made by the passenger in an automobile driven by defendant charged with driving under the influence of alcohol that defendant had consumed more alcohol than the passenger had, made after defendant was arrested and the police were inquiring about the passenger's ability to drive defendant's vehicle away from the scene, was not part of the res gestae of the act concerning which the statement was made. Priebe v. State, 250 Ga. App. 725, 553 S.E.2d 5 (2001) (decided under former O.C.G.A. § 24-3-3).

3. Spontaneity

Spontaneous declaration doctrine.

- That part of the former statute which admitted declarations so nearly connected with the act as to be free from all suspicion of device or afterthought in evidence was but a statement of the spontaneous declaration doctrine which was an exception to the rule against hearsay. Glens Falls Indem. Co. v. Gottlieb, 80 Ga. App. 634, 56 S.E.2d 799 (1949) (decided under former Code 1933, § 38-305).

When the statement of a passenger in an accident victim's car was made almost immediately after the crash as a spontaneous reaction to a startling event, rather than as a result of reflective thought, the testifying as to that statement by a third party was precisely the kind of excited utterance contemplated by former O.C.G.A. § 24-3-3, and was admissible as part of the res gestae. Copeland v. State, 235 Ga. App. 682, 510 S.E.2d 124 (1998) (decided under former O.C.G.A. § 24-3-3).

- Proximity of time in which declarations were made to the main transaction is not the only test of their admissibility as part of the res gestae, but the declarations must also be free from all suspicion of device or afterthought. Augusta & Summerville R.R. v. Randall, 79 Ga. 304, 4 S.E. 674 (1887) (decided under former Code 1882, § 3773); Savannah, Fla. & W. Ry. v. Holland, 82 Ga. 257, 10 S.E. 200, 14 Am. St. R. 158 (1889); Shapiro Packing Co. v. Landrum, 109 Ga. App. 519, 136 S.E.2d 446 (1964) (decided under former Code 1882, § 3773);(decided under former Code 1933, § 38-305).

Trial court did not err in admitting testimony about statements defendant and defendant's cousin made to a witness at the time of the theft as defendant's arguments that admission of such evidence should not have been allowed because the statements were not "free from all suspicion of devise or afterthought" lacked merit since former O.C.G.A. § 24-3-3 referred to the statement at the time it was made, and not to the witness's testimony relating what was said. Wilson v. State, 258 Ga. App. 166, 573 S.E.2d 432 (2002) (decided under former O.C.G.A. § 24-3-3).

- Only the spontaneous declarations which spring out of the event are admissible. Narrative statements of the history of the event, made after the declarant has had time to reflect on the occurrence, are not admissible. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977) (decided under former Code 1933, § 38-305).

Victim's narrative statement given to a police officer at a police station did not qualify as res gestae. Cartwright v. State, 242 Ga. App. 825, 531 S.E.2d 399 (2000) (decided under former O.C.G.A. § 24-3-3).

- When a statement is narrative rather than exclamatory, the circumstances must be closely scrutinized because a narrative is generally the result of afterthought. Clark v. State, 142 Ga. App. 851, 237 S.E.2d 459 (1977) (decided under former Code 1933, § 38-305).

Mere fact that the statement was elicited by an inquiry did not necessarily deprive the statement of its spontaneity prerequisite for admission. United Motor Freight Term. Co. v. Hixon, 77 Ga. App. 506, 48 S.E.2d 769 (1948) (decided under former Code 1933, § 38-305).

Although statements lacked spontaneity because the statements were made in answer to a question, this fact alone did not render the statements inadmissible as part of the res gestae. Thomas v. State, 242 Ga. 712, 251 S.E.2d 294 (1978) (decided under former Code 1933, § 38-305).

- Witness's testimony that the brother of a juvenile defendant told the witness, "My brother just shot someone," was not inadmissible hearsay; as the brother testified that the brother had not made such a statement, the testimony was admissible as an inconsistent statement, and it was also admissible as an excited utterance, as the statement was made by the brother after receiving a startling text message. In the Interest of B.S., 284 Ga. App. 680, 644 S.E.2d 527 (2007) (decided under former O.C.G.A. § 24-3-3).

Statements by bystanders that a defendant threw something as the defendant fled from the police were admissible under the excited utterancees gestae exception to the hearsay rule as the statements were made during a sufficiently startling event - the defendant running by the defendant as the police were in pursuit - and the statements were made without premeditation or afterthought but with sufficient personal knowledge. Williams v. State, 292 Ga. App. 892, 666 S.E.2d 18 (2008) (decided under former O.C.G.A. § 24-3-3).

Out-of-court statements identifying the appellant as the man who beat the witness's stepson did not appear to be the most probative evidence to establish the appellant's identity as the killer because the witness's spouse testified directly to that same fact, but the statements were properly admitted under the hearsay exception for excited utterances since the statements were made just minutes after the stepson had been brutally attacked. Wilson v. State, 295 Ga. 84, 757 S.E.2d 825 (2014).

Trial court did not abuse the court's discretion by admitting statements that the victim allegedly made to the victim's niece, who discovered the victim on the morning after the beating, as exceptions to the rule against hearsay as present sense impressions, excited utterances, and to impeach the niece's trial testimony as, under the totality of the circumstances, the victim was still suffering under the stress of the all-night beating such that the victim's statements were admissible. Robbins v. State, 300 Ga. 387, 793 S.E.2d 62 (2016).

Trial court did not err by admitting into evidence the statements that the victim allegedly made to the victim's niece on the morning after the beating as an excited utterance because the statements were made the morning after the all-night beating, while the victim was incoherent and the attacker was still there. Robbins v. State, 300 Ga. 387, 793 S.E.2d 62 (2016).

To the extent the victim's statements were hearsay, the statements were admissible under the excited utterance exception to the hearsay rule because the defendant's aggressive response to the victim's attempted escape, including the defendant's threat to shoot at the car the victim was in, qualified as a startling event; the victim's statements to the victim's niece indicated that the victim was afraid of the defendant and upset by the defendant's chaotic and threatening behavior; and the victim was under the continuing stress of excitement when the victim made each of the victim's statements. Blackmon v. State, 306 Ga. 90, 829 S.E.2d 75 (2019).

Testimony of the first victim's grandson was not inadmissible hearsay, but was admissible under the excited utterance exception, as the victim made the statements immediately after learning that the victim had been scammed into wiring the money to a man who falsely posed as the victim's grandson, and the victim was confused and distraught. Akintoye v. State, 340 Ga. App. 777, 798 S.E.2d 720 (2017).

4. Declarant

Declarant need not be party to suit.

- It is not required that the res gestae statement be excluded solely because the declarant is not a party to the suit or because the declaration was not made between a witness and a party. Piedmont Life Ins. Co. v. Lea, 140 Ga. App. 400, 231 S.E.2d 147 (1976) (decided under former Code 1933, § 38-305).

Former Code 1933, §§ 38-305 and 38-414 (see former O.C.G.A. §§ 24-3-3 and24-3-52) were applicable only when there was testimony by a third party as to a declaration, admission, or confession of a coconspirator and had no application when no such testimony was offered, but the accomplice merely testified against the defendant on the trial of the case. Banks v. State, 113 Ga. App. 661, 149 S.E.2d 415 (1966) (decided under former Code 1933, § 38-305).

- Trial court did not err in admitting the victim's oral statement to a police officer, through the police officer's testimony, or the victim's written statement made a few moments after the victim made the oral statement to the police officer pursuant to the res gestae exception to the hearsay rule as the statements were made while the victim was still under the influence of defendant's criminal act; also, the state was not required to show that the declarant was unavailable before the statements could be admitted. White v. State, 265 Ga. App. 117, 592 S.E.2d 905 (2004) (decided under former O.C.G.A. § 24-3-3).

Death of the person making the statements which form a part of the res gestae is no ground for the statements' exclusion from evidence. Augusta Factory v. Barnes, 72 Ga. 217, 53 Am. R. 838 (1884) (decided under former Code 1882, § 3773); Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972);(decided under former Code 1933, § 38-305).

- It is not error to admit the declarations of a victim who is not a person in control of the victim's faculties, even when such declarations and the victim's accompanying physical actions display severe disorientation, as well as confusion as to where the victim was, what was happening, and who was around the victim. Andrews v. State, 249 Ga. 223, 290 S.E.2d 71 (1982) (decided under former Code 1933, § 38-305).

5. Discretion of Court

Admission is discretionary because no rule applicable in all cases.

- No definition of res gestae can be found so comprehensive as to embrace all cases. Hence, it is left to the sound discretion of the courts what the court shall admit to the jury along with the main facts as part of the res gestae. Mitchum v. State, 11 Ga. 615 (1852) (decided under former law); Augusta & Summerville R.R. v. Randall, 79 Ga. 304, 4 S.E. 674 (1887); Southern Ry. v. Brown, 126 Ga. 1, 54 S.E. 911 (1906) (decided under former Code 1882, § 3773); Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915); Townsend v. State, 127 Ga. App. 797, 195 S.E.2d 474 (1972) (decided under former Civil Code 1895, § 5179); Henry v. State, 176 Ga. App. 462, 336 S.E.2d 588 (1985);(decided under former Civil Code 1910, § 5766);(decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305).

Admissibility of declarations as res gestae testimony does not depend upon any arbitrary time or general rule for all cases, but is left to the sound discretion of the court in determining from the time, circumstances, and statements in question, whether declarations meet requirements of being free from all suspicion of device or afterthought. Aetna Life Ins. Co. v. Jones, 80 Ga. App. 472, 56 S.E.2d 305 (1949) (decided under former Code 1933, § 38-305); Wallace v. State, 151 Ga. App. 171, 259 S.E.2d 172 (1979); South Ga. Brokers, Inc. v. Fidelity Bankers Life Ins. Co., 153 Ga. App. 503, 265 S.E.2d 815 (1980) (decided under former Code 1933, § 38-305);(decided under former Code 1933, § 38-305).

Admissibility of declarations as part of the res gestae is left to the sound discretion of the trial court, considering the time, circumstances, and statements in question. Ward v. State, 186 Ga. App. 503, 368 S.E.2d 139 (1988) (decided under former O.C.G.A. § 24-3-3); Shortes v. State, 193 Ga. App. 859, 389 S.E.2d 354 (1989); 193 Ga. App. 911, 389 S.E.2d 354 (1989), cert. denied,(decided under former O.C.G.A. § 24-3-3).

Former statute concerned merely the admissibility of evidence, which was a question for the court, the weight to be given which was for the jury. Tiller v. State, 196 Ga. 508, 26 S.E.2d 883 (1943) (decided under former Code 1933, § 38-305); Townsend v. State, 127 Ga. App. 797, 195 S.E.2d 474 (1972);(decided under former Code 1933, § 38-305).

Whether statements claimed to be a part of the res gestae are really such is a question of law to be determined by the court. Shapiro Packing Co. v. Landrum, 109 Ga. App. 519, 136 S.E.2d 446 (1964) (decided under former Code 1933, § 38-305).

- Question of a given declaration's being a part of the res gestae is for the determination of the trial court and within the court's sound discretion. Augusta Coach Co. v. Lee, 115 Ga. App. 511, 154 S.E.2d 689 (1967) (decided under former Code 1933, § 38-305); Thomas v. State, 242 Ga. 712, 251 S.E.2d 294 (1978);(decided under former Code 1933, § 38-305).

In a wrongful interference with business relations and slander suit, a trial court properly excluded evidence sought to be introduced by the suing insurance company that customers canceled policies because of misrepresentations made by the defending insurance company since the suing company and one of the company's agents failed to show, inter alia, that any purported statement by one of many policyholders located in 23 states over an extended period of time was contemporaneous with a main fact, which in the case, would have been any alleged tortious statement by an agent of the defending insurance company. Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810 (2008), cert. denied, No. S08C1555, 2008 Ga. LEXIS 680 (Ga. 2008) (decided under former O.C.G.A. § 24-3-3).

With regard to defendant's conviction for armed robbery and other crimes, the trial court properly allowed an officer to testify to what an adult in an apartment kitchen saw as the immediacy and urgency of the statement by the upset adult, who had just witnessed several men enter another apartment, made to the officer approaching the scene within minutes of the emergency call, authorized the trial court in the court's discretion to admit the statement as res gestae. Jennings v. State, 292 Ga. App. 149, 664 S.E.2d 248 (2008) (decided under former O.C.G.A. § 24-3-3).

- What is the res gestae of a given transaction must depend upon the transaction's own peculiarities of character and circumstances; courts must be allowed some latitude in this matter. Aetna Life Ins. Co. v. Jones, 80 Ga. App. 472, 56 S.E.2d 305 (1949) (decided under former Code 1933, § 38-305).

- Trial judge's determination that evidence is admissible as part of the res gestae will not be disturbed unless the determination is clearly erroneous. Robinson v. State, 197 Ga. App. 600, 399 S.E.2d 94 (1990) (decided under former O.C.G.A. § 24-3-3).

Burglary conviction was upheld on appeal as: (1) sufficient evidence was presented that the defendant entered the victim's home without permission with the intent to commit a theft therein; and (2) the state properly presented res gestae evidence, even if such improperly placed the defendant's character in evidence. Meyers v. State, 281 Ga. App. 670, 637 S.E.2d 78 (2006) (decided under former O.C.G.A. § 24-3-3).

6. Application and Examples

a. Accounts

- What parties say at the time of making up a settlement of accounts between the parties, as to the amount due from the one to the other, is a part of the res gestae, and admissible in evidence. Buttram v. Jackson, 32 Ga. 409 (1861) (decided under former law).

b. Agents

Statements of agent are admissible against the agent's principal.

- Statements of the defendant's agent to the plaintiff in the course of a business transaction are admissible in behalf of the defendant as a part of the res gestae. Jones v. Norris N. Smith Co., 31 Ga. App. 383, 120 S.E. 804 (1923) (decided under former Civil Code 1910, § 5766).

- Where extraneous circumstances, independently of and without regard to the declarations of the alleged agent personally, clearly tend to establish the fact of agency, the agent's declarations may be admitted and considered as a part of the res gestae of the transaction; but the declarations of an alleged agent, when standing alone, are never admissible to prove agency. Waddington v. Stores Mut. Protective Ass'n, 52 Ga. App. 331, 183 S.E. 143 (1935) (decided under former Code 1933, § 38-305).

Declarations of an assignor, made after the execution of the deed of assignment, were inadmissible for the purpose of annulling the assignment or of recovering property embraced in the deed because such declarations did not accompany the making of the deed, or were so nearly connected therewith as to form part of the res gestae. Wright v. Zeigler Bros., 70 Ga. 501 (1883) (decided under former Code 1882, § 3773).

An exclamation of a bystander which merely expresses an opinion or conclusion is inadmissible as res gestae. South Ga. Broker, Inc. v. Fidelity Bankers Life Ins. Co., 153 Ga. App. 503, 265 S.E.2d 815 (1980) (decided under former Code 1933, § 38-305).

- Statement of unidentified declarant fell within res gestae exception since three witnesses to an accident overheard the declarant state within 15 minutes of the event, that defendant was involved and was wearing a flowered shirt because the declaration was the natural result of the incident and clarified the incident, was voluntary and spontaneous and was made at a time so close to the incident that the idea of any deliberate design was reasonably precluded. Williams v. Melton, 733 F.2d 1492 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S. Ct. 567, 83 L. Ed. 2d 508 (1984) (decided under former O.C.G.A. § 24-3-3).

Statement a witness heard bystander make at the scene of the crime, after the crime occurred, is not part of the res gestae. Jones v. State, 167 Ga. App. 847, 307 S.E.2d 735 (1983) (decided under former O.C.G.A. § 24-3-3).

- See New Winder Lumber Co. v. Payne, 40 Ga. App. 188, 149 S.E. 85 (1929) (decided under former Civil Code 1910, § 5766); Bridges v. State, 242 Ga. 251, 248 S.E.2d 647 (1978); Ewald v. State, 156 Ga. App. 68, 274 S.E.2d 31 (1980) (decided under former Code 1933, § 38-305); Super Disct. Mkts., Inc. v. Coney, 210 Ga. App. 659, 436 S.E.2d 803 (1993); Gilbert v. State, 241 Ga. App. 57, 526 S.E.2d 88 (1999) (decided under former Code 1933, § 38-305); Espy v. State, 246 Ga. App. 1, 539 S.E.2d 513 (2000); Couch v. State, 246 Ga. App. 106, 539 S.E.2d 609 (2000) (decided under former O.C.G.A. § 24-3-3);(decided under former O.C.G.A. § 24-3-3);(decided under former O.C.G.A. § 24-3-3);(decided under former O.C.G.A. § 24-3-3).

In a speeding and eluding prosecution, under the res gestae exception to the hearsay rule, former O.C.G.A. § 24-3-3, an officer was properly allowed to testify that a bystander had asked the officer whether the officer was searching for a blue sports car and then pointed to a direction. Since no testimonial statement was involved, the defendant's rights to confrontation as interpreted by Crawford v. Washington, 541 U.S. 36 (2004), were not violated. Segel v. State, 293 Ga. App. 506, 667 S.E.2d 670 (2008) (decided under former O.C.G.A. § 24-3-3).

- Hearsay statement of a witness to a murder was properly admitted as an excited utterance under circumstances in which, when police arrived at the crime scene police saw the witness standing over the victim, sufficiently upset that the witness could not speak, and minutes later, the witness, who was described as still visibly distraught, upset, cursing, crying, almost like the witness was in shock, made statements identifying defendants as shooters to investigator and to other bystanders. Daniel v. State, 285 Ga. 406, 677 S.E.2d 120 (2009) (decided under former O.C.G.A. § 24-3-3).

Two prior statements of the child who observed the defendant slam the victim into the bed were admissible as excited utterances because the statements related to a startling event and were made shortly after the event, while the child was still under the stress of the event. Spence v. State, 307 Ga. 520, 837 S.E.2d 334 (2019).

- See Everready Cab Co. v. Wilhite, 66 Ga. App. 815, 19 S.E.2d 343 (1942) (statement made prior to accident) (decided under former Code 1933, § 38-305); Camp v. Ledford, 103 Ga. App. 197, 119 S.E.2d 54 (1961) (unidentified doctor at scene of accident) (decided under former Code 1933, § 38-305).

- Admission of a9-1-1 call placed by the child of a battery victim was proper because, among other reasons, the call was placed moments after the child had witnessed the attack, and was thus part of the res gestae. Kuykendoll v. State, 278 Ga. App. 369, 629 S.E.2d 32 (2006) (decided under former O.C.G.A. § 24-3-3).

- In a trial for driving under the influence of alcohol to the extent of being a less safe driver in violation of O.C.G.A. § 40-6-391(a)(1), admission of a recording of a9-1-1 call made by a caller who was following the defendant's vehicle was proper. Admission of the call did not violate the confrontation clause of the sixth amendment because the call's primary purpose was to prevent immediate harm to the public, not to establish evidentiary facts for a future prosecution, and the call was admissible under former O.C.G.A. § 24-3-3 because the caller had not deliberated about the statement and had personal knowledge of what the caller described to the9-1-1 operator. Key v. State, 289 Ga. App. 317, 657 S.E.2d 273 (2008) (decided under former O.C.G.A. § 24-3-3).

- Allowing a jury to hear an audiotape of two9-1-1 calls made by bystanders to report a shooting was proper because, inter alia, the calls were placed within a short time after the shooting, and the callers had no opportunity to deliberate about their statements or be influenced by others; thus, the evidence was admissible under the former O.C.G.A. § 24-3-3 res gestae exception to the hearsay rule. Glover v. State, 285 Ga. 461, 678 S.E.2d 476 (2009) (decided under former O.C.G.A. § 24-3-3).

e. Children

Child's statements admissible though not competent witness.

- Even though a child may be too young to be a competent witness this does not preclude admission of the child's declaration as part of the res gestae, if otherwise admissible. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977) (decided under former Code 1933, § 38-305).

Standing alone, the fact that a declarant is a child of tender years cannot be said to free the statements from the suspicion of device or afterthought. Hight v. Butler, 230 Ga. 533, 198 S.E.2d 169 (1973) (decided under former Code 1933, § 38-305); Stamper v. State, 235 Ga. 165, 219 S.E.2d 140 (1975);(decided under former Code 1933, § 38-305).

- Fact that the declarant was a child of tender years may be taken into consideration in determining whether, under the res gestae rule, the declarant's declarations are so free from the suspicion of afterthought as to be admissible in evidence. Berry v. State, 9 Ga. App. 868, 72 S.E. 433 (1911) (decided under former Civil Code 1910, § 5766).

- Testimony of a doctor who related a child victim's responses to medical questions for purposes of diagnosis and treatment was admissible under the exception to the hearsay rule provided by former O.C.G.A. § 24-3-3 since the responses were given within a matter of minutes after the patient was taken to the hospital. Allen v. State, 174 Ga. App. 206, 329 S.E.2d 586 (1985) (decided under former O.C.G.A. § 24-3-3).

- When statements by a victim of cruelty to children were made several days after the incident and the child had several opportunities to report the incidents outside the presence of the child's parents and the reports were made over a period of several days in response to specific questions and there was no medically acceptable testimony that the child was laboring under some disability and the statements were narrative in form rather than spontaneously given, such statements lacked contemporaneity and spontaneity to such a degree as to be extremely suspect and therefore in violation of the res gestae exception to the hearsay rule. Allen v. State, 174 Ga. App. 206, 329 S.E.2d 586 (1985) (decided under former O.C.G.A. § 24-3-3).

- Given that the child witness was four years old, the extent of the child's injuries, and the traumatic circumstances leading to the child's hospitalization - being involved in a serious multi-vehicle crash, the child's statement to a nurse was an excited-utterance as it related to a startling event or condition, and the child made the statement under the stress of excitement caused by the event or condition. Sullivan v. State, 308 Ga. 772, 843 S.E.2d 411 (2020).

- When eight-year-old victim, who was allegedly molested in the afternoon, did not return to the victim's own home until that evening, after the victim's parent had returned from a doctor's appointment, and reported the act of molestation to the victim's parent at that time, which was the victim's first opportunity to do so since leaving the custody of defendant, the parent's testimony concerning the child's statements was admissible under the res gestae exception to the hearsay rule. Moseley v. State, 179 Ga. App. 698, 347 S.E.2d 686 (1986) (decided under former O.C.G.A. § 24-3-3).

Statements by child to parent nearly twenty-four hours after molestation were admissible. Millwood v. State, 174 Ga. App. 113, 329 S.E.2d 273 (1985) (decided under former O.C.G.A. § 24-3-3).

Statement by child to police approximately one year after the alleged molestation was not contemporaneous, was not spontaneous, but was in response to questioning of the police, and thus not a part of the res gestae. Lynn v. State, 181 Ga. App. 461, 352 S.E.2d 602 (1986) (decided under former O.C.G.A. § 24-3-3).

- See Ferguson v. Columbus & Rome Ry., 75 Ga. 637 (1885) (cause of injury) (decided under former Code 1882, § 3773); Johnson v. State, 142 Ga. App. 560, 236 S.E.2d 552 (1977) (relating details of child molestation) (decided under former Code 1933, § 38-305).

In the sexual molestation case, the trial court did not err in allowing into evidence the out-of-court statements of the sexual abuse victim's younger sibling who witnessed the molestation; the sibling's statements to the parent were made almost immediately after the defendant molested the victim and were made without premeditation or afterthought pursuant to former O.C.G.A. § 24-3-3. Mikell v. State, 281 Ga. App. 739, 637 S.E.2d 142 (2006) (decided under former O.C.G.A. § 24-3-3).

All circumstances of crime making up res gestae may be proved. Duffy v. State, 146 Ga. App. 400, 246 S.E.2d 420 (1978) (decided under former Code 1933, § 38-305).

- Statement made by the accused was not admissible as part of the res gestae since while the statement was made "soon" after the shooting but it did not appear that it was so nearly connected with the homicide as to be "free from all suspicion of device or afterthought." Ingram v. State, 43 Ga. App. 218, 158 S.E. 529 (1931) (decided under former Penal Code 1910, § 1024).

Testimony should not have been admitted as part of the res gestae in a charge of two counts of aggravated assault arising from an altercation with the owners of a towing business since the testimony encompassed defendant's behavior during the receipt of medical treatment at some unspecified time after the commission of the charged crimes and did not involve any statements defendant made concerning the assault or any continuation of the defendant's actions at the scene of the crime. Heflin v. State, 204 Ga. App. 161, 418 S.E.2d 770 (1992) (decided under former O.C.G.A. § 24-3-3).

Remark made by one perpetrator to the other as the perpetrators fled from the liquor store, where one of the perpetrators had shot the store owner, to the van the perpetrators were going to steal to make the perpetrators' getaway, was admissible as part of the res gestae. Tesfaye v. State, 275 Ga. 439, 569 S.E.2d 849 (2002) (decided under former O.C.G.A. § 24-3-3).

Evidence that a witness taught defendant how to make methamphetamine was properly admitted at defendant's trial for possession and trafficking the drug because the evidence was part of the main transaction of conspiracy to manufacture methamphetamine and was admitted as part of the res gestae; therefore, there was no error on the part of the trial court by not requiring the state to have complied with the notice and hearing requirements of Ga. Unif. Super. Ct. R. 31.1 and Ga. Unif. Super. Ct. R. 31.3. Goldsby v. State, 273 Ga. App. 523, 615 S.E.2d 592 (2005) (decided under former O.C.G.A. § 24-3-3).

Defendant did not receive ineffective assistance of counsel as: (1) a hearsay objection to statements the defendant made during an argument and to testimony that the defendant stated that the defendant should have killed the other witnesses would have been futile as the statements were not offered for the truth of the matter asserted; (2) a hearsay objection to a witness's testimony as to the defendant's statements during a van ride would also have been futile as the statements were admissible under former O.C.G.A. § 24-3-3; and (3) counsel's strategic decision to attack certain testimony through cross-examination was not ineffective assistance of counsel. Johnson v. State, 281 Ga. 229, 637 S.E.2d 393 (2006) (decided under former O.C.G.A. § 24-3-3).

Trial court properly held that the events leading up to the assault on the victim served to illustrate the defendant's motive in participating with a cohort to steal money from the victim; moreover, even if the defendant reiterated an objection at trial, the statements uttered by the defendant were so connected with the commission of the offense to be admissible. White v. State, 282 Ga. App. 286, 638 S.E.2d 426 (2006) (decided under former O.C.G.A. § 24-3-3).

- Coconspirator's statements implicating defendant in a conspiracy to kill defendant's spouse were admissible as part of res gestae where made while the coconspirator was exercising control over the victims, and thus during the enterprise. Walker v. State, 213 Ga. App. 407, 444 S.E.2d 824 (1994) (decided under former O.C.G.A. § 24-3-3).

Bruton objection was properly overruled as the codefendant's statement that the codefendant would check with defendant regarding the victim's participation was part of the res gestae, rather than a confession or a statement. Ford v. State, 274 Ga. App. 695, 617 S.E.2d 262 (2005) (decided under former O.C.G.A. § 24-3-3).

- Comments which an informant made on tape shortly after defendant sold drugs to the informant and left the informant's car were part of the res gestae, and the trial court did not abuse the court's discretion by admitting the comments during defendant's trial on charges that defendant sold cocaine. Lyons v. State, 266 Ga. App. 89, 596 S.E.2d 226 (2004) (decided under former O.C.G.A. § 24-3-3).

- Declaration of another person that the person alone committed the crime for which the defendant was on trial, the declarant not naming the person whom declarant had killed, and it not being shown whether the declarant's declaration was made before or after the crime was committed, or, if after, how long after, was not admissible in evidence in favor of the accused, and as a part of the res gestae. Johnson v. State, 188 Ga. 662, 4 S.E.2d 813 (1939) (decided under former Code 1933, § 38-305).

- Informant was not allowed to relate what a codefendant said during the course of the crime, nor could the defendant offer testimony regarding what the defendant's absent codefendant told others about the defendant's role in the crime because admission of such declarations would allow a person to subvert the ends of justice by admitting the crime to others and then absenting oneself from the jurisdiction of the court. Roberts v. State, 208 Ga. App. 64, 430 S.E.2d 175 (1993) (decided under former O.C.G.A. § 24-3-3).

- Rape victim's testimony that her attacker stated he was running from the law, had been drinking, was on drugs really bad, and needed money for gas was not impermissible character evidence and was admissible as res gestae. Hardegree v. State, 230 Ga. App. 111, 495 S.E.2d 347 (1998) (decided under former O.C.G.A. § 24-3-3).

- Because no evidence existed by which the trial court could assess the personal knowledge of the speaker overheard on a9-1-1 call, who was not the caller, or the reliability of the statement generally, and the evidence against the defendant was less than overwhelming, the trial court's decision to admit the statement under the res gestae exception was clearly erroneous; moreover, given that the jury sent a note to the trial court requesting to hear the recording again, stating that it was "vital" to their deliberations, it was clear that what was said on the recording figured importantly in the jury's deliberations. Orr v. State, 281 Ga. 112, 636 S.E.2d 505 (2006) (decided under former O.C.G.A. § 24-3-3).

- Trial court did not violate the defendant's confrontation rights by admitting the 911 call without having the caller testify because the 911 call was made to avert a crime in progress or to seek assistance in a situation involving immediate danger and not to establish evidentiary facts or bear testimony against the defendant. Driskell v. State, 333 Ga. App. 886, 777 S.E.2d 717 (2015), cert. denied, No. S16C0191, 2016 Ga. LEXIS 115 (Ga. 2016).

- See Thomas v. State, 27 Ga. 287 (1859) (declaration that shooting was in self-defense) (decided under former law); Caito v. State, 130 Ga. App. 831, 204 S.E.2d 765 (1974) (statement that "you got me") (decided under former Code 1933, § 38-305); Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979), vacated, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980) (bragging of participation in murder) (decided under former Code 1933, § 38-305).

Defendant could not raise an objection to the admission of defendant's spontaneous statement to police officers executing a search warrant that "you've got me" for the first time on appeal absent plain error. There was no plain error in admitting the statement because: (1) defendant was being detained under O.C.G.A. § 17-5-28, and was not under arrest; (2) defendant was not being interrogated, making Miranda warnings not required; (3) defense counsel cross-examined the officers on the statement: (4) the statement was admissible as a spontaneous statement; and (5) the statement was admissible under former O.C.G.A. § 24-3-3 as a part of the res gestae. Zackery v. State, 262 Ga. App. 646, 586 S.E.2d 346 (2003) (decided under former O.C.G.A. § 24-3-3).

Evidence that the defendant was a drug dealer and gave the police a false name when questioned after the alleged crime was committed was admissible as relevant and part of the res gestae as the former was incidental to and followed directly from the defendant's participation in the sale of marijuana to the victim, and the latter was part of what transpired shortly after the commission of the victim's murder; moreover, this was true even if the defendant's character was incidentally placed in issue. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007) (decided under former O.C.G.A. § 24-3-3).

In a defendant's prosecution for, inter alia, felony murder, the introduction of a second inmate's statement that the defendant and the second inmate did not mean to kill a third inmate did not violate the defendant's sixth amendment confrontation rights because the voluntary statement, which was made shortly after the third inmate was found in the defendant's cell, was admissible pursuant to the res gestae exception to the rule against hearsay under former O.C.G.A. § 24-3-3. Butler v. State, 284 Ga. 620, 669 S.E.2d 118 (2008) (decided under former O.C.G.A. § 24-3-3).

Although a police car video of a defendant's traffic stop had poor audio quality resulting in inaudible portions, defendant's admissions that defendant's license was suspended were admissible as part of the res gestae pursuant to former O.C.G.A. § 24-3-3. The defendant could attack the weight and credibility of the recording, but not the recording's admissibility. Steed v. State, 309 Ga. App. 546, 710 S.E.2d 696 (2011) (decided under former O.C.G.A. § 24-3-3).

In defendant's trial for sexual exploitation of children, aggravated sodomy, child molestation, and cruelty to children, evidence that the defendant told the victim, the defendant's niece, that the defendant had been molested by the defendant's father as a child were admissible as part of the res gestae of the crimes. Wiggins v. State, 338 Ga. App. 273, 787 S.E.2d 357 (2016)(decided under former O.C.G.A. § 24-3-3).

- Evidence was properly admitted by the trial court in defendant's trial for aggravated assault in violation of O.C.G.A. § 16-5-21 since statements of a witness that another screamed for help when the witness saw the victim and defendant fighting were part of the res gestae exception to hearsay pursuant to former O.C.G.A. § 24-3-3. Statements by a witness that defendant was ordered to leave the premises were not hearsay under former O.C.G.A. § 24-3-1 because the statements were used to explain defendant's motive and conduct of remaining on the premises and waiting for the victim pursuant to former O.C.G.A. § 24-3-2, and statements regarding information from a police report which was not admitted into evidence were deemed harmless as cumulative. Regardless, there was sufficient evidence without the disputed evidentiary rulings to support defendant's conviction based on observations of several witnesses and the cuts on the victim's face and body. Kelley v. State, 260 Ga. App. 238, 581 S.E.2d 584 (2003) (decided under former O.C.G.A. § 24-3-3).

- Defendant's statements to law enforcement and to a college intern shortly after the shooting were properly excluded by the trial court. Defendant's statements in the patrol car were not free from all suspicion of device or afterthought because defendant advised a female caller that the defendant could not talk because the defendant was in the back of a patrol car, and asked the caller not to call the defendant back, and defendant's recounting of recent events to the defendant's father was a narrative and not part of the res gestae. Crane v. State, 300 Ga. App. 450, 685 S.E.2d 314 (2009) (decided under former O.C.G.A. § 24-3-3).

- Because a department store videotape of defendant's spouse stealing items of merchandise from the store was made contemporaneously to the charged crime, which involved defendant leaving the store with merchandise in the defendant's cart for which the defendant had not paid, and because it provided context for the circumstances surrounding defendant's arrest, it was admissible as part of the res gestae of the crime under former O.C.G.A. § 24-3-3. Wright v. State, 301 Ga. App. 178, 687 S.E.2d 195 (2009) (decided under former O.C.G.A. § 24-3-3).

- No independent ground pursuant to the res gestae evidence rule of former O.C.G.A. § 24-3-3 authorized the introduction of evidence that defendant was previously convicted of aggravated assault when defendant did not testify. Furthermore, the statements regarding defendant's criminal record were inherently prejudicial, and, as a result of the statement's admission, defendant's convictions had to be reversed. Pelowski v. State, 306 Ga. App. 41, 701 S.E.2d 529 (2010) (decided under former O.C.G.A. § 24-3-3).

g. Criminal Law - Investigating Officers

Statements made about a fight.

- Statements made to a magistrate about a fight by one of the participants on the same day of the fight, and a short distance from the scene, were held to be not admissible as a part of the res gestae. Cherry v. McCall, 23 Ga. 193 (1857) (decided under former law).

Admission of police officer's testimony regarding the substance of what someone told the officer who had moved out of town at the time of trial and was not called as a witness was in error, since this testimony was hearsay and came under no exception to the hearsay rule. Liu's Enters. Corp. v. Li, 204 Ga. App. 397, 419 S.E.2d 511 (1992) (decided under former O.C.G.A. § 24-3-3).

Statement made to an officer after an arrest concerning a course of conduct by the person arrested is not a part of the res gestae but a narrative of events. Jones v. State, 62 Ga. App. 734, 9 S.E.2d 707 (1940) (decided under former Code 1933, § 38-305).

- When the stipulated facts showed the trustworthiness of statement made at time of arrest in that defendant's nephew informed officer that defendant had been operating a motorcycle soon after the occurrence of the contested driving offense; the statement was sufficiently contemporaneous to be a part of the res gestae and was therefore admissible. Jarrett v. State, 265 Ga. 28, 453 S.E.2d 461 (1995) (decided under former O.C.G.A. § 24-3-3).

- Statements made to an investigating officer not more than 20 to 30 minutes after an automobile collision may be allowed as testimony. Land v. McClure, 135 Ga. App. 243, 217 S.E.2d 600 (1975) (decided under former Code 1933, § 38-305).

Trial court did not err in overruling the defendant's hearsay objections to the testimony of a co-indictee's girlfriend that he told her by phone that the defendant was shooting at the victim and to the testimony of the responding police officer and another person that the victim's fiance, right after the shooting while she was upset and crying, identified the defendant as the shooter because the statements were admissible as part of the res gestae of the crime; both of the declarants testified at trial and were subject to questioning by the defense, and the declarants made the statements either during the shooting or immediately thereafter when crying and upset. McIlwain v. State, 287 Ga. 115, 694 S.E.2d 657 (2010), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-3-3).

- Testimony of an officer that the officer noticed bruises on the rape victim's neck is admissible. Zilinmon v. State, 234 Ga. 535, 216 S.E.2d 830 (1975), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006) (decided under former O.C.G.A. § 24-3-3).

In a suit by an injured bystander against a restaurant arising out of a gun shot by an alleged restaurant employee, a police report suggesting that the shooter was working as a bouncer was admissible under O.C.G.A. § 24-4-803(8); however, the trial court failed to address the restaurant's objection that the report was not authenticated as required by O.C.G.A. § 24-9-901(a), requiring remand. Hungry Wolf/Sugar & Spice, Inc. v. Langdeau, 338 Ga. App. 750, 791 S.E.2d 850 (2016).

- With regard to a defendant's conviction for possessing cocaine, the trial court did not err by admitting evidence of telephone conversations between a deputy and unknown callers which occurred during the time the deputy was serving a temporary protective order and warrant for a probation violation on the defendant at the defendant's apartment because the telephone conversations occurred contemporaneously with the seizure of the drugs found in the apartment and tended to indicate that the drugs had not been brought to the apartment by a casual guest, but belonged to someone who was receiving calls about the drugs at the apartment. Stewart v. State, 285 Ga. App. 760, 647 S.E.2d 411 (2007) (decided under former O.C.G.A. § 24-3-3).

- Statement given to a police officer shortly after a stabbing incident was admissible, and the fact that the witness may have misidentified the suspect did not render the statement inadmissible. Taylor v. State, 226 Ga. App. 339, 486 S.E.2d 601 (1997) (decided under former O.C.G.A. § 24-3-3).

- Trial court did not improperly rely on hearsay in determining whether reasonable suspicions existed to detain defendant as the burglary victim's description of the perpetrator of the burglary to the police officer did not go to the issue of whether defendant was guilty or innocent, but instead went to whether reasonable suspicion existed to perform a Terry detention; moreover, the burglary victim's description given on the scene to the officer only minutes after the perpetrator fled was admissible under the res gestae exception to the hearsay rule. Spear v. State, 259 Ga. App. 803, 578 S.E.2d 504 (2003) (decided under former O.C.G.A. § 24-3-3).

Trial court did not err in overruling hearsay objections the defendant made during testimony from the responding police officer regarding statements the victim made to the officer during the preliminary investigation because the statements were admissible as part of the res gestae of the crime; because the officer testified that the victim was upset and had blood on the victim's face when the officer arrived and made the statements regarding the incident shortly thereafter, the statements were relevant and made without premeditation and were admissible as part of the res gestae. Mubarak v. State, 305 Ga. App. 419, 699 S.E.2d 788 (2010) (decided under former O.C.G.A. § 24-3-3).

- Evidence of the defendant's statement to an officer that the defendant was showing the defendant's son a gun when the gun accidentally discharged was properly excluded as the statement was not an excited utterance because not only was there a passage of time sufficient for the defendant to formulate a specific version of the events to the defendant's advantage, but there was evidence supporting an inference that the defendant actually did so, when the defendant earlier asked a witness to help the defendant, and the defendant said that the defendant did not want to go to jail; and no evidence was presented that showed the defendant was actually experiencing stress or excitement at the time of the statement. Jenkins v. State, 303 Ga. 314, 812 S.E.2d 238 (2018).

- Police officer's testimony as to out-of-court statements made by a witness that the witness had hidden in a closet while defendant fired shots through the wall and closet door was admissible as part of the res gestae. Morris v. State, 228 Ga. App. 90, 491 S.E.2d 190 (1997) (decided under former O.C.G.A. § 24-3-3).

Evidence of other crimes was admissible when the extraneous crime formed a part of the res gestae. Bradley v. State, 154 Ga. App. 333, 268 S.E.2d 388 (1980) (decided under former Code 1933, § 38-305); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980);(decided under former Code 1933, § 38-305).

Generally, in the prosecution for a particular offense, evidence of another distinct crime, wholly independent from that which the accused is on trial, is inadmissible, but if the allegedly separate offense was a part of the same incident for which the accused is being tried and forms a part of the res gestae, the evidence is admissible, and the fact that such part of the res gestae incidentally placed defendant's character in issue does not render the evidence inadmissible. Yarbrough v. State, 186 Ga. App. 845, 368 S.E.2d 802 (1988) (decided under former O.C.G.A. § 24-3-3).

Fact that relevant evidence may indicate a crime or incidentally place a defendant's character in issue does not render the evidence inadmissible. Martin v. State, 219 Ga. App. 277, 464 S.E.2d 872 (1995) (decided under former O.C.G.A. § 24-3-3); Larkin v. State, 230 Ga. App. 129, 495 S.E.2d 605 (1998);(decided under former O.C.G.A. § 24-3-3).

- Trial court's denial of defendant's motion for mistrial for an argument made during an opening statement to the jury that the prosecutor expected the evidence to show "defendant was asking for cocaine, said, 'Where is the cocaine . . . ,' " was not error although the defendant had not been charged with any offense involving drugs as the state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged, even though it may have incidentally placed the defendant's character in evidence. Houston v. State, 187 Ga. App. 335, 370 S.E.2d 178 (1988) (decided under former O.C.G.A. § 24-3-3).

Statements are a part of the res gestae and are admissible as such, notwithstanding the fact the statements may show other criminal conduct on the part of the one who made the statement. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989) (decided under former Code 1933, § 38-305); Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980); Potts v. Zant, 734 F.2d 526 (11th Cir. 1984), rev'd on other grounds,(decided under former Code 1933, § 38-305).

Trial court did not err in denying the defendant's motion in limine to exclude evidence of the defendant's probation status, and the underlying probation offense, as that evidence was properly admitted as part of the res gestae since the conduct of the officer flowed very directly from the statements made during the consensual encounter. Hampton v. State, 287 Ga. App. 896, 652 S.E.2d 915 (2007) (decided under former O.C.G.A. § 24-3-3).

- Defendant's claim that defendant's character was impermissibly placed in issue when a similar transaction witness testified that immediately after defendant had raped the witness, the defendant lay beside the victim and told the victim that "he had done that to five other women" was rejected as defendant failed to object to the testimony until after the jury was charged; moreover, had defendant raised a timely objection, the testimony still would have been admissible as part of the res gestae, even if the testimony incidentally placed defendant's character in evidence. Harden v. State, 272 Ga. App. 559, 612 S.E.2d 877 (2005) (decided under former O.C.G.A. § 24-3-3).

- Victim's testimony about seeing the defendant and the codefendant rob another person was admissible under former O.C.G.A. § 24-3-3 as part of the res gestae of the armed robbery and aggravated assault against the victim as the other act occurred in the same place and during the same time that the defendant and codefendant were committing the crimes against the victim. Herieia v. State, 297 Ga. App. 872, 678 S.E.2d 548 (2009) (decided under former O.C.G.A. § 24-3-3).

- Generally, in the prosecution for a particular offense, evidence of another offense wholly independent from the one being prosecuted is inadmissible. But, if the statement by the defendant forms a part of the same transaction of the one being prosecuted, it is a part of the res gestae and is admissible. The fact that it shows another crime and incidentally places the defendant's character in issue does not render the statement inadmissible. Mosley v. State, 150 Ga. App. 802, 258 S.E.2d 608 (1979) (decided under former Code 1933, § 38-305).

Because facts surrounding the defendant's commission of a prior crime were similar enough to the charged crimes, evidence of the prior crime was properly admitted despite the defendant's hearsay claim since the state established that it was introducing the evidence for an appropriate purpose, there was sufficient similarity between the independent offense and the crime charged, and proof of the former tended to show the latter. Kimbrough v. State, 281 Ga. 885, 644 S.E.2d 125 (2007) (decided under former O.C.G.A. § 24-3-3).

- In a prosecution for felony forgery, a witness's testimony that, just prior to the charged offense, the defendant had tried to induce the witness to cash forged checks and that the witness saw the defendant use an accomplice to cash forged checks, was properly admitted as res gestae evidence because the testimony showed the planning process for the forgeries in question. Chandler v. State, 311 Ga. App. 86, 714 S.E.2d 597 (2011), cert. denied, No. S11C1861, 2011 Ga. LEXIS 985 (Ga. 2011) (decided under former O.C.G.A. § 24-3-3).

i. Criminal Law - Victims

Declarations as natural consequence of crime are admissible.

- Victim's declarations, made shortly after the commission of the crime and as a natural consequence thereof, were admissible in evidence as part of the res gestae. Horn v. State, 140 Ga. App. 592, 231 S.E.2d 414 (1976) (decided under former Code 1933, § 38-305).

- In a rape prosecution, statements the victim made to defendant and defendant's codefendant while the crime was in progress were admissible because the statements were part of the res gestae of the crime. Cole v. State, 279 Ga. App. 219, 630 S.E.2d 817 (2006) (decided under former O.C.G.A. § 24-3-3).

- Testimony as to statements of a victim of armed robbery made within a few minutes after the incident was admissible. Perkins v. State, 226 Ga. App. 613, 487 S.E.2d 365 (1997) (decided under former O.C.G.A. § 24-3-3).

Absent victim's statements to the officer who first responded to the emergency call and the victim's first conversation with a detective at the hospital shortly after commission of the crime were admissible as part of the res gestae. Jay v. State, 232 Ga. App. 661, 503 S.E.2d 563 (1998) (decided under former O.C.G.A. § 24-3-3).

Trial court did not err in admitting the statements the domestic violence victim made to the police officer at the crime scene as the statements were made an hour or less after the officer arrived at the scene and while the victim was still under the effects of the crimes; accordingly, the statements were admissible as part of res gestae. Mize v. State, 262 Ga. App. 486, 585 S.E.2d 913 (2003) (decided under former O.C.G.A. § 24-3-3).

Trial counsel's failure to object to admission of the victim's statement to the witness that victim and defendant had just had sex, in a case in which defendant was being prosecuted for child molestation and statutory rape did not amount to ineffective assistance of counsel, as the victim made the statement to the witness moments after the sex occurred, and, thus, the statement was admissible as res gestae evidence. Drummond v. State, 275 Ga. App. 86, 619 S.E.2d 784 (2005) (decided under former O.C.G.A. § 24-3-3).

Victim's statement made within minutes of a crime to an officer was admissible as part of the res gestae, under former O.C.G.A. § 24-3-3, including the fact that the victim recognized one of the perpetrators of the crime as the defendant. Inman v. State, 281 Ga. 67, 635 S.E.2d 125 (2006), cert. denied, 552 U.S. 828, 128 S. Ct. 42, 169 L. Ed. 2d 40 (2007) (decided under former O.C.G.A. § 24-3-3).

Murder victim's statements to neighbors, paramedics, and an officer identifying the defendant as the shooter were nontestimonial as the statements were made while the incident was still ongoing and the perpetrator was at large. Thus, the confrontation clause was not implicated, and the admission of the statements under former O.C.G.A. § 24-3-3, the res gestae exception to the hearsay rule, did not violate the defendant's sixth amendment rights. Thomas v. State, 284 Ga. 540, 668 S.E.2d 711 (2008) (decided under former O.C.G.A. § 24-3-3).

An armed robbery defendant's counsel was not ineffective in failing to object to the testimony of the detective as to what the victim and a witness said when the detective arrived at the bank, seven minutes after the robbery. There was no showing that the statements were made as the result of any afterthought; they were therefore admissible as res gestae under former O.C.G.A. § 24-3-3. Collier v. State, 303 Ga. App. 31, 692 S.E.2d 697 (2010) (decided under former O.C.G.A. § 24-3-3).

Trial court did not err in admitting an investigating officer's testimony regarding the victim's prior consistent statement identifying the defendant as the victim's attacker despite the defendant's hearsay objection. The victim's statement was made within minutes of the violent assault and while the victim was still suffering its effects; therefore, the victim's statement was admissible as part of the res gestae of the event under former O.C.G.A. § 24-3-3. Mims v. State, 314 Ga. App. 170, 723 S.E.2d 486 (2012) (decided under former O.C.G.A. § 24-3-3).

When the victim's statements were derived solely from his or her personal observations, were made within minutes of the crime, and were free of all suspicion, the victim's statements are admissible under the res gestae exception to the hearsay rule. Milford v. State, 291 Ga. 347, 729 S.E.2d 352 (2012) (decided under former O.C.G.A. § 24-3-3).

- Trial court was not clearly erroneous in admitting testimony as to a statement made by an earlier victim as to a sexual assault by defendant under the res gestae exception; the statement was made shortly after the crime occurred when the victim was still upset and shaking. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005) (decided under former O.C.G.A. § 24-3-3).

Defendant's claim that trial counsel was ineffective for allowing the prosecutor to "elicit extensive hearsay" regarding what the victim told a friend about the rape was rejected as counsel made a hearsay objection to the testimony which was sustained in part; the trial court permitted the victim's outcry witness to testify about what the victim said because those statements were made immediately after the rape and, therefore, constituted admissible res gestae evidence. Powell v. State, 272 Ga. App. 628, 612 S.E.2d 916 (2005) (decided under former O.C.G.A. § 24-3-3).

Trial court properly admitted the excited utterances of an armed robbery victim as part of the res gestae free from all suspicion of device or afterthought; moreover, Crawford did not apply as the statements were not made to a police officer during a subsequent investigation of the crime, nor were the statements made to an officer or9-1-1 operator for the purpose of proving a fact regarding some past event. Fields v. State, 283 Ga. App. 208, 641 S.E.2d 218 (2007) (decided under former O.C.G.A. § 24-3-3).

Trial court did not err in admitting into evidence statements the victim made to an officer that the defendant shot the victim because the statements were properly admitted under the res gestae exception to the hearsay rule, former O.C.G.A. § 24-3-3; the victim made the statements shortly after a shooting, in the midst of the chaos of the crime scene, and while awaiting emergency treatment. Sanford v. State, 287 Ga. 351, 695 S.E.2d 579 (2010), cert. denied, 131 S. Ct. 1514, 179 L. Ed. 2d 336 (2011) (decided under former O.C.G.A. § 24-3-3).

Because the victim's statements to the homeowner's daughter and the emergency medical technician (EMT) were made shortly after the rape occurred and were admissible as part of the res gestae, any objection to the testimony of the homeowner's daughter and the EMT regarding what the victim said to them would have been futile and could not provide the basis for an ineffective assistance claim. Miller v. State, 325 Ga. App. 764, 754 S.E.2d 804 (2014)(decided under former O.C.G.A. § 24-3-3).

Trial court did not abuse the court's discretion in admitting the victim's statements to the victim's neighbor as excited utterances as the statements were made shortly after the incident, when the neighbor found the victim sitting on the ground, crying and hysterical. Gregory v. State, 342 Ga. App. 411, 803 S.E.2d 367 (2017), cert. denied, 2018 Ga. LEXIS 186 (Ga. 2018), cert. denied, 139 S. Ct. 180, 2018 U.S. LEXIS 5563, 202 L. Ed. 2d 110 (U.S. 2018).

- Evidence showed that the victim's statements were all consistent and delivered within a few hours of the time the victim said the victim escaped captivity; trial court did not err in concluding that the statements were free from suspicion of device or afterthought so as to allow the statements' admission as an exception to the hearsay exclusion. Underwood v. State, 250 Ga. App. 764, 552 S.E.2d 915 (2001) (decided under former O.C.G.A. § 24-3-3).

Statements made by a child victim within hours of an alleged sexual assault were made at a time so nearly connected with the incident so as to be free from all suspicion, device, or afterthought, and hence, were admissible as part of res gestae. Freeman v. State, 282 Ga. App. 185, 638 S.E.2d 358 (2006) (decided under former O.C.G.A. § 24-3-3).

- There was no error in allowing the investigating officer to relate for the jury the distraught victim's on-the-scene description of the attack upon the victim, including the victim's description of the assailant, even though this evidence was more narrative than exclamatory. McKinney v. State, 218 Ga. App. 633, 463 S.E.2d 136 (1995) (decided under former O.C.G.A. § 24-3-3); Basu v. State, 228 Ga. App. 591, 492 S.E.2d 329 (1997);(decided under former O.C.G.A. § 24-3-3).

When an outcry is communicated to witnesses immediately after a victim locates the witnesses, which is within one hour after the offense, these declarations, made so shortly after the commission of the crime, constitute part of the res gestae. Tucker v. State, 243 Ga. 683, 256 S.E.2d 365 (1979) (decided under former Code 1933, § 38-305).

Robbery victim's statements to the arresting officer and emergency room physician identifying the victim's assailant as the victim's great grandson were so closely connected to the offense as to be inherently reliable, particularly in light of the victim's refusal to testify once the victim realized the penal consequences to the defendant. Jenkins v. State, 232 Ga. App. 395, 501 S.E.2d 891 (1998) (decided under former O.C.G.A. § 24-3-3).

- Testimony concerning a conversation between deceased victim and a murder suspect occurring some hours before the murder was not part of the res gestae because it did not lead to the murder, and was in no way connected with the murder. Mitchell v. State, 71 Ga. 128 (1883) (decided under former Code 1882, § 3773).

- Statement from deceased child declarant that there was no need for the child's mother to call the school and confirm that the child arrived safely on the day the child disappeared was not part of the res gestae as it was not made contemporaneously with, or in relation to, the commission of the crimes for which defendant was being tried; appellate court believed that the statement was merely intended to demonstrate the child's nature and trusting disposition. Head v. State, 276 Ga. 131, 575 S.E.2d 883 (2003) (decided under former O.C.G.A. § 24-3-3).

Murder defendant claiming ineffective assistance of counsel failed to show that a hearsay objection to a security guard's testimony regarding the victim's statements at a nightclub shortly before the victim's murder would have been sustained because the statement could have been held admissible under O.C.G.A. § 24-8-803(1) (present-sense impression of declarant) or (3) (existing mental, emotional, or physical condition of declarant); also, counsel explained the failure to object. Morrison v. State, 300 Ga. 426, 796 S.E.2d 293 (2017).

- In an aggravated battery and criminal gang violence case that took place outside an amusement park, evidence of an earlier incident involving the gang inside the park was admissible as part of the res gestae of the crime under former O.C.G.A. § 24-3-3 because the same people were involved and the beatings arose from a motive of revenge for the earlier incident. Morey v. State, 312 Ga. App. 678, 719 S.E.2d 504 (2011), cert. denied, No. S12C0451, 2012 Ga. LEXIS 592 (Ga. 2012) (decided under former O.C.G.A. § 24-3-3).

- In a prosecution for rape, kidnapping, assault, and sodomy, it was not error to allow the state to play a9-1-1 audiotape of calls made by the victim and witnesses during the attack. Moore v. State, 217 Ga. App. 207, 456 S.E.2d 708 (1995) (decided under former O.C.G.A. § 24-3-3).

When defendant kidnapped the victim in front of the victim's children, the victim and the children were part of res gestae since the victim's statements were made while the incident was in progress, one of the children was on the telephone with the9-1-1 operator recounting the altercation as the altercation occurred, and a policeman found the children distraught and holding makeshift weapons; as the statements sprang out of the incident, the statements were admissible. Jackson v. State, 255 Ga. App. 279, 564 S.E.2d 865 (2002) (decided under former O.C.G.A. § 24-3-3).

When a tape of a9-1-1 call was made contemporaneous with the call, the content of the call showed that the call was contemporaneous with the burglary at issue, the9-1-1 operator testified that the tape was a fair and accurate depiction of the actual conversation, the caller's statements were made while the incident was actually in progress, and the statements were made without premeditation or afterthought, a trial court correctly allowed admission of the tape as part of the res gestae of the burglary. Sweney v. State, 265 Ga. App. 21, 593 S.E.2d 12 (2003) (decided under former O.C.G.A. § 24-3-3).

Defendant's motion in limine to exclude evidence of a9-1-1 call and the defendant's motion for a directed verdict were properly denied as the9-1-1 call was not testimonial since the call was not premeditated and was made to prevent or stop a crime; under Georgia law, the 9-1-1 statements were admissible as part of the res gestae or as an excited utterance and the confrontation clause and Crawford v. Washington, 541 U.S. 36 (2004), were inapplicable. Kimbrell v. State, 280 Ga. App. 867, 635 S.E.2d 237 (2006) (decided under former O.C.G.A. § 24-3-3).

Trial court correctly admitted a9-1-1 recording as part of the res gestae pursuant to former O.C.G.A. § 24-3-3 because the caller identified the defendant while or soon after the incident occurred in an attempt to secure police assistance and was still on the phone with the9-1-1 operator when the police arrived. Landaverde v. State, 305 Ga. App. 488, 699 S.E.2d 816 (2010) (decided under former O.C.G.A. § 24-3-3).

Because the entirety of both of the victim's9-1-1 calls took place while the victim was perceiving the danger posed to the victim by the defendant, and because the victim only ended the second9-1-1 call when the officers arrived on the scene and the victim only then perceived that the most immediate danger had passed, the circumstances suggested that the victim was responding throughout the incident to the victim's reasonable perception of a real and present danger, and the trial court did not abuse the court's discretion when the court concluded that the victim's 9-1-1 calls were admissible under the present-sense impression exception to the hearsay rule. Owens v. State, 329 Ga. App. 455, 765 S.E.2d 653 (2014).

Victim's statements during the9-1-1 call did not violate the defendant's constitutional right to confront the defendant's accusers because the victim's statements in the9-1-1 call were non-testimonial as the statements were made while the family violence battery incident was ongoing, and the statements were made for the primary purpose of preventing the continuation of the domestic violence that was apparently occurring at that time, not for the purpose of establishing a past fact; and because the statements were admissible under the present sense impression exception to the hearsay rule. Legree v. State, 344 Ga. App. 793, 812 S.E.2d 68 (2018).

- Recorded radio voice transmission of the deceased victim made while proceeding to the scene of the homicide is admissible as forming part of the res gestae. The victim's voice transmission made while proceeding to the scene together with the events occurring there only moments later constituted the transaction under investigation. The death of the person making such statement is no ground for the statement's exclusion. Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972) (decided under former Code 1933, § 38-305).

- Absent victim's taped interview made 18 or 19 hours after the incident was not part of the res gestae but, because it was cumulative of other testimony, admission of the statement was not reversible error. Jay v. State, 232 Ga. App. 661, 503 S.E.2d 563 (1998) (decided under former O.C.G.A. § 24-3-3).

Evidence that the victim heard an unidentified female voice scream defendant's name, tell the defendant "don't do it," and tell defendant that the defendant was going to kill the victim, as a gun was cocked and fired at the victim, was admissible under the res gestae exception to the hearsay rule. Sharif v. State, 272 Ga. App. 660, 613 S.E.2d 176 (2005) (decided under former O.C.G.A. § 24-3-3).

- See Life & Cas. Ins. Co. v. Lingerfelt, 100 Ga. App. 482, 111 S.E.2d 730 (1959) (statement made within 10 minutes of assault) (decided under former Code 1933, § 38-305); Barker v. State, 144 Ga. App. 339, 241 S.E.2d 11 (1977) (statement shortly after assault) (decided under former Code 1933, § 38-305); Nasworthy v. State, 169 Ga. App. 603, 314 S.E.2d 446 (1984) (testimony of ex-spouse and child) (decided under former O.C.G.A. § 24-3-3); Robinson v. State, 197 Ga. App. 600, 399 S.E.2d 94 (1990) (victim's identification of attacker to adult child) (decided under former O.C.G.A. § 24-3-3).

Nurse's testimony that a victim told the nurse that the victim was attacked by the victim's roommate while the victims was sleeping was admissible under former O.C.G.A. § 24-3-3 because of the victim's physical and emotional condition when the victim made the statements and because the statements were made immediately after the attack; further, the correctional officers had testified that defendant was the aggressor in the affray and that the victim appeared to have been asleep at the inception of the incident, so the hearsay testimony given by the nurse was cumulative of other evidence. Brown v. State, 273 Ga. App. 88, 614 S.E.2d 187 (2005) (decided under former O.C.G.A. § 24-3-3).

- Testimony by two witnesses regarding statements made by one of the victims about seeing the defendants engaged in sex was admissible as res gestae evidence. Grimsley v. State, 233 Ga. App. 781, 505 S.E.2d 522 (1998) (decided under former O.C.G.A. § 24-3-3).

- See Kilgore v. State, 177 Ga. App. 656, 340 S.E.2d 640 (1986) (decided under former O.C.G.A. § 24-3-3).

Statements by victim of child molestation made to teacher some hours after the event was admissible. Samples v. State, 169 Ga. App. 605, 314 S.E.2d 448 (1984) (decided under former O.C.G.A. § 24-3-3).

- Trial court did not err in denying defendant's motion for mistrial after one of the child victims testified that defendant battered the child's grandmother shortly after the grandmother stumbled upon defendant molesting that child as the evidence supported a finding that this battering was part of the res gestae of the child molestation crime. Prather v. State, 279 Ga. App. 552, 631 S.E.2d 758 (2006) (decided under former O.C.G.A. § 24-3-3).

Witness's testimony concerning victim's recital to the witness of facts of an alleged rape some 12 hours after the offense was not admissible as an outcry - i.e., as part of the res gestae - but was admissible for the purpose of establishing that the prosecutor had complained that a rape had occurred. Barnes v. State, 171 Ga. App. 478, 320 S.E.2d 597 (1984) (decided under former O.C.G.A. § 24-3-3).

- Victim's parent's testimony as to the daughter's telephone call to the parent after the rape was admissible as res gestae. Howard v. State, 228 Ga. App. 784, 492 S.E.2d 759 (1997) (decided under former O.C.G.A. § 24-3-3).

- Victim's statement following a phone conversation with defendant that the victim had to "get" defendant because defendant told the victim the defendant was going to kill the victim, considered in the context in which it was made, was an excited utterance. Walthour v. State, 269 Ga. 396, 497 S.E.2d 799 (1998) (decided under former O.C.G.A. § 24-3-3).

Testimony of police officer that victim told the officer that defendant forced the victim's car off the road was within the "excited utterance" hearsay exception and admissible as part of the res gestae. T.G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 334 S.E.2d 910 (1985) (decided under former O.C.G.A. § 24-3-3).

- Trial court did not err by allowing a burglary victim to testify that the victim's neighbor, an eyewitness, told the victim that the witness saw someone running from the victim's house or as to the neighbor's description of the perpetrator when such declarations were made in a phone call to the victim substantially contemporaneously with the burglary and soon thereafter when the victim returned home. Lovelace v. State, 262 Ga. App. 690, 586 S.E.2d 386 (2003) (decided under former O.C.G.A. § 24-3-3).

- See Jordan v. State, 180 Ga. 871, 181 S.E. 151 (1935) (decided under former Code 1933, § 38-305); Gates v. State, 120 Ga. App. 518, 171 S.E.2d 375 (1969);(decided under former Code 1933, § 38-305).

Defendant's threatening words and behavior made defendant's angry telephone message and act of hunting for the victim's hotel room a startling event that, in all probability, impeded the victim's normal thought processes, and the victim's comment to the victim's friend that defendant was going to kill the victim appears to have been spontaneous and not the result of reasoned deliberation. Testimony such as the friend's, that the declarant appeared nervous and upset, combined with a reasonable basis for emotional upset, will usually suffice for admission under the excited utterance exception of former O.C.G.A. § 24-3-3. Demons v. State, 277 Ga. 724, 595 S.E.2d 76 (2004) (decided under former O.C.G.A. § 24-3-3).

Firmly rooted hearsay exceptions, such as res gestae, the excited utterance exception of former O.C.G.A. § 24-3-3, are generally not a sufficient substitute for a prior opportunity for cross-examination in order to admit testimonial hearsay in a criminal case. However, when a deceased victim's statements were not "testimonial," the statements were not precluded from admission under Georgia's res gestae exception to the hearsay rule. Demons v. State, 277 Ga. 724, 595 S.E.2d 76 (2004) (decided under former O.C.G.A. § 24-3-3).

Admission of a murder victim's and the victim's fiancee's statements to police as the victim lay bleeding in the street after a shooting was not prohibited by the Confrontation Clause, although the victim died, because the statements were nontestimonial in that the statements were not intended to prove a past fact but to describe current circumstances that required immediate police action. The statements were admissible under the excited utterance and present sense impression exceptions to the hearsay rule. Varner v. State, 306 Ga. 726, 832 S.E.2d 792 (2019).

- Because the evidence showed that a victim's kidnapping and rape were part of one criminal transaction, the trial court did not abuse the court's discretion in admitting evidence of the rape, as it formed a part of the res gestae. Garrett v. State, 285 Ga. App. 282, 645 S.E.2d 718 (2007) (decided under former O.C.G.A. § 24-3-3).

- Evidence of a victim's statement to the police, although not properly admitted as a prior inconsistent statement due to the failure to lay a proper foundation under former O.C.G.A. § 24-9-83 (see now O.C.G.A. § 24-6-608), was properly admitted as part of the res gestae under former O.C.G.A. § 24-3-3 because the victim's description of a distinctive jacket worn by one of the individuals who took a pickup truck was used by the police to search the defendant's residence. Stubbs v. State, 293 Ga. App. 692, 667 S.E.2d 905 (2008) (decided under former O.C.G.A. § 24-3-3).

- Because a police officer's hearsay testimony of any instances of harassment was cumulative to the victim's direct testimony on the issue, there was no error on the part of the trial court to admit the testimony simply on the basis that the statement was hearsay. Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691 (2012), cert. denied, No. S12C1308, 2012 Ga. LEXIS 1027 (Ga. 2012), appeal dismissed, 2020 U.S. App. LEXIS 3372 (11th Cir. Ga. 2020) (decided under former O.C.G.A. § 24-3-1).

Trial counsel was not ineffective for failing to object on hearsay grounds to portions of a Secret Service agent's testimony about what the agent learned during the investigation as the testimony was not hearsay since the agent did not repeat the testimony of an out-of-court declarant. Bearden v. State, 316 Ga. App. 721, 728 S.E.2d 874 (2012) (decided under former O.C.G.A. § 24-3-1).

Trial counsel was not ineffective for failing to make a hearsay objection to the investigating officer's testimony concerning statements that a witness and the victim's mother made to the officer recounting the allegations of the victim because counsel's trial strategy was to highlight the inconsistencies between what the witness and the mother said the victim told them and what the victim subsequently told the forensic interviewer. Henry v. State, 316 Ga. App. 132, 729 S.E.2d 429 (2012) (decided under former O.C.G.A. § 24-3-1).

Pretermitting whether the testimony of the sheriff's deputy and police investigator fell within the res gestae exception to hearsay, because the defendant could not show any prejudice resulting from the admission of the testimony in light of the properly admitted testimony of the homeowner's daughter and emergency medical technician, the failure to object to evidence which was merely cumulative of other admissible evidence did not amount to ineffective assistance of counsel. Miller v. State, 325 Ga. App. 764, 754 S.E.2d 804 (2014)(decided under former O.C.G.A. § 24-3-3).

- Trial counsel was not ineffective for failing to make a hearsay objection to the testimony of the victim's mother and a witness recounting allegations of molestation because trial counsel wanted the testimony admitted as part of counsel's trial strategy to show those witnesses fabricated the charges and coached the victim. Henry v. State, 316 Ga. App. 132, 729 S.E.2d 429 (2012) (decided under former O.C.G.A. § 24-3-1).

- Trial court erred in admitting the victim's prior consistent statements because the victim made the statements to a police officer after the victim was accused of possessing narcotics; nevertheless, any error in admitting the evidence was harmless because the jury acquitted the defendant of the most serious sexual offenses, and the acquittals established that the jury was able to objectively consider the evidence of the charges, despite the improper bolstering. Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691 (2012), cert. denied, No. S12C1308, 2012 Ga. LEXIS 1027 (Ga. 2012), appeal dismissed, 2020 U.S. App. LEXIS 3372 (11th Cir. Ga. 2020) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not abuse the court's discretion in allowing a witness to testify about the victim's statement regarding threats the victim had received a few days before the shooting because the requirements of the necessity exception to the hearsay rule were met; the victim was deceased and unavailable to testify, the witness testified that the victim and the witness were friends, and the defendant identified no alternative source of the information revealed in the statement. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion by allowing the admission of hearsay evidence by three witnesses concerning statements that the victim made about the victim's relationship with the defendant because such admissions were proper under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b) (see now O.C.G.A. §§ 24-8-803 and24-8-807), as the witnesses showed the close relationship between the defendant and the victim, the statements were uncontradicted, found reliable, and bore sufficient indicia of trustworthiness to be admissible. Bunnell v. State, 292 Ga. 253, 735 S.E.2d 281 (2013) (decided under former O.C.G.A. § 24-3-1).

In a murder case wherein the defendant killed the defendant's father and brother and was involved with the defendant's brother's wife, the trial court did not abuse the court's discretion when the court allowed a woman who had counseled the brother about the brother's marital problems to testify about an incident that the brother had described to the counselor, in which the defendant threatened the defendant's brother's life at their parents' home because the statement was admissible under the necessity exception to the hearsay rule, O.C.G.A. § 24-3-1(b), as the witness was shown to have been "like a second mother" to the brother, that the witness had counseled and advised the brother about the brother's marital problems, and that the brother had no reason to lie to the woman; further, the testimony was consistent with the testimony of other witnesses, including two witnesses who testified about another incident in which the brother and the defendant threatened to kill each other. Heidt v. State, 292 Ga. 343, 736 S.E.2d 384 (2013)(decided under former O.C.G.A. § 24-3-1).

- Defendant failed to preserve for review the argument that the trial court erred in allowing a witness to testify about the victim's statement because although the codefendant's counsel vigorously opposed the state's request to elicit the hearsay statements, the defendant's counsel failed to object, join in the codefendant's objection, or argue in any way regarding the issue. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not err in refusing to grant a mistrial on the ground that an eyewitness's testimony was based on hearsay because to the extent the testimony exposed prior difficulties between the codefendants and the victim, it was cumulative of other testimony that the defendant and the codefendant threatened the victim the day before the shooting; the other evidence implicating the defendant in the shooting made it highly probable that the hearsay testimony did not contribute to the verdict. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-1).

j. Donors

Statements by donor of gift.

- Declarations of the donor, made on the evening of the same day on which an alleged gift was made, but after the gift was made, going to show that there was a gift, and the manner of the gift, are not admissible as parts of the res gestae. Carter v. Buchannon, 3 Ga. 513 (1847) (decided under former law).

Statement made by the store manager in a slip and fall action pertaining to the identity of the slippery substance which allegedly caused the fall was admissible as an admission against interest or under the res gestae exception and was sufficient to raise a question of fact precluding summary judgment in favor of the store. Brown v. Piggly Wiggly S., Inc., 210 Ga. App. 459, 436 S.E.2d 513 (1993) (decided under former O.C.G.A. § 24-3-3).

- Statement made just after plaintiff's fall by an unknown employee in the presence of the store manager that "if this floor had been mopped or kept mopped this wouldn't happen" was admissible as part of the res gestae and might also have been an admission against defendant store's interest. Sutton v. Winn Dixie Stores, Inc., 233 Ga. App. 424, 504 S.E.2d 245 (1998) (decided under former O.C.G.A. § 24-3-3).

Hearsay testimony of a bank employee as to another employee's telephone conversation was admissible under former O.C.G.A. §§ 24-3-1(b) and24-3-3 (see now O.C.G.A. §§ 24-8-801,24-8-802, and24-8-803) as part of the res gestae of the other employee's conversation. Goldsmith v. Peterson, 307 Ga. App. 26, 703 S.E.2d 694 (2010) (decided under former O.C.G.A. § 24-3-3).

- Extrajudicial admission of employee, who was not a party to the indemnity contract, nor a party to the suit was not admissible as a part of the res gestae of the larceny for which the employer was seeking indemnification, nor as an admission by a stranger to the suit bearing upon a collateral issue essential to the adjudication, as the admission was not collateral to the main issue involved, but bore directly upon it. Glens Falls Indem. Co. v. Gottlieb, 80 Ga. App. 634, 56 S.E.2d 799 (1949) (decided under former Code 1933, § 38-305).

In an action for injuries sustained after falling on a wet floor, testimony of the injured customer that a store employee came up to the customer after the customer fell and stated that a child had thrown up on the floor was not admissible as part of the res gestae. The testimony did not create a triable issue of fact as to the store owner's knowledge of a dangerous condition. Hagan v. Goody's Family Clothing, Inc., 227 Ga. App. 585, 490 S.E.2d 107 (1997) (decided under former O.C.G.A. § 24-3-3).

As a witness's hearsay statement to an investigator was made 13 days after the fire at issue in the litigation, it could not be said to have been voluntary or free of all suspicion or afterthought, and hence was not admissible under the res gestae exception. HCP III Woodstock, Inc. v. Healthcare Servs. Group, Inc., 254 Ga. App. 242, 562 S.E.2d 225 (2002) (decided under former O.C.G.A. § 24-3-3).

An opinion or conclusion is admissible as res gestae evidence if it is spontaneous or reflective rather than a reasoned one arrived at deliberately after thoughtful consideration. Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974) (decided under former Code 1933, § 38-305).

m. Personal Injuries

Statements by injured persons held admissible in the following cases.

- See Charleston & W. Carolina Ry. v. Burckhalter, 141 Ga. 127, 80 S.E. 278 (1913) (statement to doctor) (decided under former Civil Code 1910, § 5766); Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915) (statement to spouse) (decided under former Civil Code 1910, § 5766); Aetna Life Ins. Co. v. Jones, 80 Ga. App. 472, 56 S.E.2d 305 (1949) (statement to stepson) (decided under former Code 1933, § 38-305); Gilbert Corp. of Del., Inc. v. Yetman, 219 Ga. App. 320, 464 S.E.2d 822 (1995) (officer's testimony about decedent's statements) (decided under former O.C.G.A. § 24-3-3).

- Statements by an injured party to a hospital surgeon were held inadmissible. Hunter v. State, 147 Ga. 823, 95 S.E. 668 (1918) (decided under former Penal Code 1910, § 1024).

Excluded testimony of two witnesses that a patient told the witnesses that the patient had pointed out a bump on the patient's breast to a doctor and that the doctor told the patient not to be concerned about the bump was not admissible under the res gestae exception as it was unclear how much time elapsed between the office visit and the patient's statements to the witnesses; moreover, the patient did not testify that the patient told the witnesses about the office visit and there was no way to establish the exact sequence of events that occurred between the office visit and the discussions about that visit or to determine the circumstances surrounding the making of the statements. Davis v. Reid, 272 Ga. App. 312, 612 S.E.2d 112 (2005) (decided under former O.C.G.A. § 24-3-3).

n. Principal and Surety

Statements during transaction for which surety is bound held admissible.

- If the admissions of a principal are made during the transaction of the business for which the surety is bound, the admissions become a part of the res gestae and are admissible; otherwise, the admissions are not. Dobbs v. Justices of Inferior Court, 17 Ga. 624 (1855) (decided under former law).

o. Sales

Agreement of sale.

- Declarations of a vendor of property, as to the vendor's motive for the sale, made at the time and during the progress of the sale, and even so soon thereafter as to be free from all suspicion of afterthought, are admissible evidence on a trial as to the validity of the sale. McLean v. Clark, 47 Ga. 24 (1872) (decided under former Code 1868, § 3720).

Testimonial conclusions contained in an incident report prepared by store's security personnel that a customer of the store had been struck in the abdomen by shopping carts steered by an employee of the store were admissible under the res gestae exception to the hearsay rule. Super Disct. Mkts., Inc. v. Coney, 210 Ga. App. 659, 436 S.E.2d 803 (1993) (decided under former O.C.G.A. § 24-3-3).

Photostatic copy of log made by the operator on duty representing radio communication of officers engaged in high speed chase with defendant was admissible as part of the res gestae. Waller v. State, 80 Ga. App. 488, 56 S.E.2d 491 (1949) (decided under former Code 1933, § 38-305).

Any acts or declarations by the principal legatee, who procures the will under which one claims to be written, may be given in evidence as a part of the res gestae. Morris v. Stokes, 21 Ga. 552 (1857), aff'd, 27 Ga. 239 (1859) (decided under former law).

Former statute related only to factual matters which would be within the immediate knowledge of the patient personally, and statements of medical opinion were not included. Dunn v. McIntyre, 146 Ga. App. 362, 246 S.E.2d 398 (1978) (decided under former Code 1933, § 38-315).

Former statute did not encompass statements of medical opinion made by one physician to another but instead referred only to statements made by or on behalf of the patient when seeking medical care. Dunn v. McIntyre, 146 Ga. App. 362, 246 S.E.2d 398 (1978) (decided under former Code 1933, § 38-315).

Former O.C.G.A. § 24-3-4 did not cover statements of medical opinion made by one physician to another, much less a secondhand recitation of what the witness was told by another person concerning the injured plaintiff's condition. Pirkle v. Hawley, 199 Ga. App. 371, 405 S.E.2d 71, cert. denied, 199 Ga. App. 906, 405 S.E.2d 71 (1991) (decided under former O.C.G.A. § 24-3-4).

- Testimony of a doctor who related a patient's responses to medical questions for purposes of diagnosis and treatment was admissible under the exception to the hearsay rule provided by former O.C.G.A. § 24-3-4 since the responses were given within a matter of minutes after the patient was taken to the hospital. Allen v. State, 174 Ga. App. 206, 329 S.E.2d 586 (1985) (decided under former O.C.G.A. § 24-3-4).

- Defendant was not entitled to relief based on the admission of statements the victim made to the sexual assault nurse examiner (SANE) because, even if the purposes of the SANE's interview was to collect evidence and the testimony was admitted in error, the error was harmless given the DNA evidence linking the defendant to the rape and the defendant's weak alibi. McEady v. State, Ga. App. , 846 S.E.2d 94 (2020).

- Testimony of nurse, who prepared child for examination by physician, as to statements made to the nurse by the child was admissible in prosecution for child molestation, even though the statements were made several months after the sexual abuse occurred, since the statements were made for the purpose of medical diagnosis and treatment and did not identify or in any way refer to the defendant. Sparks v. State, 172 Ga. App. 891, 324 S.E.2d 824 (1984) (decided under former O.C.G.A. § 24-3-4).

- When a psychologist, in a deposition which was introduced into evidence at trial, stated several times that plaintiffs were suffering from great pain, grief, and stress when the psychologist met with them approximately one year after the death of their son, the statements made to the psychologist during the psychologist's evaluation were exceptions to the hearsay rule under former O.C.G.A. § 24-3-4. Southern Ry. v. Lawson, 256 Ga. 798, 353 S.E.2d 491 (1987) (decided under former O.C.G.A. § 24-3-4).

- In a proceeding on termination of parental rights, the trial court did not err in allowing a clinical psychologist to testify as to the possible effects schizophrenia may have on caring for children based upon the psychologist's psychological evaluations of the mother. In the Interest of M.D., 244 Ga. App. 156, 534 S.E.2d 889 (2000) (decided under former O.C.G.A. § 24-3-4).

- Failure of the plaintiff to assert that a statement made by a therapist at a deposition was admissible under former O.C.G.A. § 24-3-4 as a statement made for medical diagnosis or treatment at trial when the trial court asked for the plaintiff's response to a hearsay objection precluded the appellate court from considering the issue for the first time on appeal. Bryant v. Food Giant, Inc., 184 Ga. App. 155, 361 S.E.2d 38 (1987) (decided under former O.C.G.A. § 24-3-4).

- When the original of the medical record itself is admissible but diagnostic opinions and conclusions therein are inadmissible, past recollection recorded by a doctor of a patient's medical history contained in a medical record, which included a diagnostic opinion of another doctor, would be inadmissible. Stoneridge Properties, Inc. v. Kuper, 178 Ga. App. 409, 343 S.E.2d 424 (1986) (decided under former O.C.G.A. § 24-3-4).

Physical description of a victim's assailant was not reasonably pertinent to the diagnosis and treatment of the victim, and the exclusion of a hospital report containing such a description was proper. Arnold v. State, 166 Ga. App. 313, 304 S.E.2d 118 (1983) (decided under former O.C.G.A. § 24-3-4).

- Court of Appeals' holding that identification testimony in child sexual abuse cases was categorically barred under O.C.G.A. § 24-8-803(4) was erroneous, and the trial court needed to consider admissibility of such evidence in light of the Renville test. State v. Almanza, 304 Ga. 553, 820 S.E.2d 1 (2018).

- See Davis v. State, 168 Ga. App. 272, 308 S.E.2d 602 (1983) (decided under former O.C.G.A. § 24-3-4).

Testimony by a doctor that the doctor received a report that a mixture of hot bleach was thrown in the victim's face was properly admitted as the testimony related to the cause of the victim's injuries and was made for the purpose of the victim's diagnosis and treatment. Payne v. State, 273 Ga. App. 483, 615 S.E.2d 564 (2005) (decided under former O.C.G.A. § 24-3-4).

Trial court properly admitted testimony of an emergency medical technician who arrived on the scene of a vehicle accident caused by defendant as the technician's questions to defendant were pertinent to defendant's medical treatment, and defendant's response that defendant had been drinking alcohol and smoking marijuana all night was properly admitted pursuant to former O.C.G.A. § 24-3-4. Ellis v. State, 275 Ga. App. 881, 622 S.E.2d 89 (2005) (decided under former O.C.G.A. § 24-3-4).

Trial court did not err in permitting a challenged state expert, who examined the victim, to testify as to what the victim stated during an emergency room examination, as the victim corroborated the expert's testimony and the expert based the testimony on personal knowledge, not hearsay; moreover, the expert's testimony did not improperly bolster that of the victim, but merely repeated the information that the victim provided, which the expert used to examine the victim and draw medical conclusions. Scott v. State, 281 Ga. App. 106, 635 S.E.2d 582 (2006) (decided under former O.C.G.A. § 24-3-4).

With regard to a defendant's trial and conviction for aggravated sodomy and simple battery involving the sexual assault of an inmate upon an inmate, the trial court did not violate the defendant's rights under the confrontation clause by admitting the statements made by the victim to the physician and the nurse who treated the victim for the injuries received because the statements were admissible under former O.C.G.A. § 24-3-4, the medical diagnosis or treatment exception, and did not fall within any class of testimonial statement. In particular, no objective witness would reasonably conclude that the statements were made under such circumstances that the statement would be available for use at a later trial. Thomas v. State, 288 Ga. App. 602, 654 S.E.2d 682 (2007), cert. denied, No. S08C0725, 2008 Ga. LEXIS 471 (Ga. 2008) (decided under former O.C.G.A. § 24-3-4).

With regard to a defendant's convictions for aggravated sodomy, rape, and other related crimes, trial counsel's decision not to object to hearsay testimony of the emergency room physician who treated the victim did not amount to ineffective assistance of counsel as the physician's testimony was admissible under the hearsay exception set forth in former O.C.G.A. § 24-3-4 since the challenged statements related to the cause of the victim's injuries and were made for the purpose of the victim's diagnosis and treatment. As a result, the trial court did not err in admitting the statements and, therefore, since the statements were admissible, there was no merit to the defendant's contention that the defendant's trial counsel's failure to object to the hearsay testimony was ineffective assistance. Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292 (2009), cert. denied, No. S09C0862, 2009 Ga. LEXIS 259 (Ga. 2009) (decided under former O.C.G.A. § 24-3-4).

Nurse was properly allowed to testify as to a rape victim's statement to the nurse that her assailant had blindfolded her and pushed her into furniture because the victim's statement to the nurse was given to explain the nature and origin of some of her injuries. This evidence was sufficient to allow the jury to find that the rape victim had been pushed into furniture as she was pushed and dragged through her home while blindfolded, supporting the defendant's aggravated assault convictions. Bryant v. State, 304 Ga. App. 456, 696 S.E.2d 439 (2010) (decided under former O.C.G.A. § 24-3-4).

- In a personal injury action, plaintiff's alleged statements made to plaintiff's medical providers regarding medical history during plaintiff's diagnosis and treatment were not inadmissible hearsay. Barone v. Law, 242 Ga. App. 102, 527 S.E.2d 898 (2000) (decided under former O.C.G.A. § 24-3-4).

In an aggravated assault case, because there was no showing that the defense's discovery violation in failing to produce jail medical records showing the defendant's injuries were in bad faith, the trial court erred in excluding the records; the error was not harmless because the records would have been admissible under O.C.G.A. § 24-8-803(4) and (6), although the defendant's statements that the victim had injured the defendant were not admissible. Phillips v. State, 347 Ga. App. 147, 817 S.E.2d 711 (2018).

- Admission of hospital records that indicated the defendant presented to the emergency room intoxicated and needed to be cleared to go to jail without the one responsible for completing the forms testifying did not violate the defendant's confrontation rights because the Supreme Court of Georgia has specifically held that medical records created for treatment purposes are not testimonial; thus, the trial court properly admitted the records under O.C.G.A. § 24-8-803(6). Samuels v. State, 335 Ga. App. 819, 783 S.E.2d 344 (2016).

- When a physician's testimony includes the victim's out-of-court statements to the physician that intercourse with the victim's father (the defendant) had taken place, admission of that portion of the statement was error; the identity of the defendant contained in the out-of-court statements was unnecessary to any legitimate purpose addressed in the former statute. Johnson v. State, 149 Ga. App. 544, 254 S.E.2d 757 (1979) (decided under former Code 1933, § 38-315).

Admission of an emergency room physician's testimony that the patient told the physician she had been raped by a black man named "Miller" was error; however, since the evidence was cumulative, the admission was not prejudicial to defendant. Miller v. State, 194 Ga. App. 533, 390 S.E.2d 901 (1990) (decided under former O.C.G.A. § 24-3-4).

Admission of a shooting victim's statements to a physician regarding the circumstances and activity prior to the shooting, which did not fall within the statutory exception because they were not reasonably pertinent to the physician's diagnosis or treatment, was harmless error since it was highly probable that the error did not contribute to the judgment. Howard v. State, 261 Ga. 251, 403 S.E.2d 204 (1991) (decided under former O.C.G.A. § 24-3-4).

Doctor's testimony that a child abuse victim's father told the doctor that defendant abused the child was not admissible as an out-of-court statement made for the purpose of describing medical history reasonably pertinent to diagnosis or treatment. Cupe v. State, 253 Ga. App. 851, 560 S.E.2d 700 (2002) (decided under former O.C.G.A. § 24-3-4).

Nurse's testimony that a victim told the nurse that the victim was attacked by the victim's roommate while the victim was sleeping was not admissible under former O.C.G.A. § 24-3-4 as the statements were not reasonably pertinent to the nurse's diagnosis or treatment of the victim. Brown v. State, 273 Ga. App. 88, 614 S.E.2d 187 (2005) (decided under former O.C.G.A. § 24-3-4).

- Trial court did not err in admitting the medical record from the doctor as an exception to the hearsay rule. Central of Ga. R.R. v. Carter, 212 Ga. App. 528, 442 S.E.2d 269 (1994) (decided under former O.C.G.A. § 24-3-4).

In a negligence action seeking compensatory damages for a disabling injury, because an emergency room report was prepared prior to performance of the surgery on plaintiff's foot so that the statement was made before medical treatment was rendered, the trial court did not err in allowing admission as such under former O.C.G.A. § 24-3-4. Imm v. Chaney, 287 Ga. App. 606, 651 S.E.2d 855 (2007) (decided under former O.C.G.A. § 24-3-4).

Trial court did not abuse its discretion when it admitted the testimony of the nurse who performed the initial examination of the victim because, even assuming that the victim's identification of the defendant as the victim's attacker was not reasonably pertinent to the diagnosis or treatment, that identification was cumulative of other evidence as to the defendant's identity. McGill v. State, 302 Ga. App. 378, 690 S.E.2d 648 (2010) (decided under former O.C.G.A. § 24-3-4).

Nurse practitioner's testimony which identified child molestation victim's father as the molester was cumulative of that of other witnesses, including the victim personally, and therefore harmless. Hyde v. State, 189 Ga. App. 727, 377 S.E.2d 187, cert. denied, 189 Ga. App. 912, 377 S.E.2d 187 (1988) (decided under former O.C.G.A. § 24-3-4).

Trial court did not err in sustaining the state's hearsay objection to a nurse's testimony regarding whether a doctor's medical report reflected that a victim had made an inconsistent statement because the defendant failed to show reversible error by the record since the medical report was not introduced for inclusion in the appellate record, and thus, the court of appeals had no means of determining whether the alleged impeachment evidence actually existed; any error in the exclusion of the evidence was harmless because the evidence would have been cumulative of the trial testimony that had already been admitted. Bearfield v. State, 305 Ga. App. 37, 699 S.E.2d 363 (2010) (decided under former O.C.G.A. § 24-3-4).

- Party must be given the opportunity to impeach the credibility of a declarant whose statement is admitted under the medical diagnosis or treatment exception to the hearsay rule. Allen v. State, 247 Ga. App. 10, 543 S.E.2d 45 (2000) (decided under former O.C.G.A. § 24-3-4).

Information given to a licensed professional counselor was admissible under this exception to the hearsay rule. Allen v. State, 247 Ga. App. 10, 543 S.E.2d 45 (2000) (decided under former O.C.G.A. § 24-3-4).

Business Records

1. In General

- Purpose of former O.C.G.A. § 24-3-14 was not to bolster the witness on the stand but to serve in place of witness by giving the manner of entry within the usual course of the business enterprise an independent prima facie probative value of its own, thus broadening an exception to the hearsay rule. Calhoun v. Chappell, 117 Ga. App. 865, 162 S.E.2d 300 (1968) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Former statute was primarily adapted to allowing testimony of business records the authentication of which was otherwise difficult against a hearsay objection because it was "the routine product of an efficient clerical system." Calhoun v. Chappell, 117 Ga. App. 865, 162 S.E.2d 300 (1968) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Purpose of exception in allowing into evidence routine business records is not to allow the conclusions of anyone, and it certainly was not intended that such conclusions stand without opportunity to cross-examine the maker. Wesley v. State, 225 Ga. 22, 165 S.E.2d 719 (1969) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Purpose of exception was to allow the determination of records without the necessity of producing all the various clerical personnel who made the entries. Dowling v. Jones-Logan Co., 123 Ga. App. 380, 181 S.E.2d 75 (1971) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Timothy McCarthy Constr. Co. v. Southern Detectives, Inc., 125 Ga. App. 205, 186 S.E.2d 895 (1971); Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 223 S.E.2d 757 (1976) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Lewis v. United Cal. Bank, 143 Ga. App. 126, 237 S.E.2d 645 (1977); 240 Ga. 823, 242 S.E.2d 581 (1978) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Record Data, Inc. v. Vinylgrain Indus. of Ga., Inc., 143 Ga. App. 854, 240 S.E.2d 223 (1977); Gray v. Cousins Mtg. & Equity Invs., 150 Ga. App. 296, 257 S.E.2d 365 (1979), aff'd, Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Purpose of former O.C.G.A. § 24-3-14 was to provide for the admissibility of records that would otherwise be excluded as hearsay. Allen v. State, 248 Ga. 676, 286 S.E.2d 3 (1982) (decided under former O.C.G.A. § 24-3-14).

Former O.C.G.A. § 24-3-14 was intended to preempt the field with regard to admission of business records and the statutory requirements are exclusive in this regard. Dowling v. Jones-Logan Co., 123 Ga. App. 380, 181 S.E.2d 75 (1971) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Former Ga. L. 1952, p. 177, §§ 1, 2, 3 was intended to bring realities of business and professional practice into courtroom and should not be interpreted so as to destroy the former statute's obvious usefulness. Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 223 S.E.2d 757 (1976) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Former statute opened a broad departure from the hitherto fixed rules of evidence relative to the introduction of books and papers. Guthrie v. Berrien Prods. Co., 91 Ga. App. 45, 84 S.E.2d 596 (1954) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Former statute was never expanded to include private custody or simple possession since the circumstances of private possession were infinitely more varied than those of business or official custody. Martin v. State, 135 Ga. App. 4, 217 S.E.2d 312 (1975) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Summary of business records is admissible even though the summary itself may not qualify as a "business record" under former O.C.G.A. § 24-3-14. Polma, Inc. v. Coastal Canvas Prods. Co., 199 Ga. App. 616, 405 S.E.2d 531, cert. denied, 199 Ga. App. 906, 405 S.E.2d 531 (1991) (decided under former O.C.G.A. § 24-3-14).

- See Tyner v. Sheriff, 164 Ga. App. 360, 297 S.E.2d 114 (1982) (decided under former O.C.G.A. § 24-3-14).

Summaries of voluminous business records are admissible so long as the original records are accessible to the court and the parties. Lawhorn v. State, 200 Ga. App. 451, 408 S.E.2d 425 (1991) (decided under former O.C.G.A. § 24-3-14).

In a suit to recover monies owed on notes and related guaranties, a bank failed to establish the amounts owed with admissible evidence because computer printouts of the balances due and interest and related fees owed were inadmissible hearsay since the printouts were summaries that were not accompanied by the underlying business records on which the summaries were based. Capital City Developers, LLC v. Bank of N. Ga., 316 Ga. App. 624, 730 S.E.2d 99 (2012) (decided under former O.C.G.A. § 24-3-14).

An affidavit need not recite the words "true and correct copies" before the accompanying business records will be admissible. Questions about the accuracy of business records go to their weight, not their admissibility. Bagley v. Fulton-DeKalb Hosp. Auth., 216 Ga. App. 537, 455 S.E.2d 325 (1995) (decided under former O.C.G.A. § 24-3-14).

Language of former statute suggested that writing must be made as memorandum or record rather than for some other purpose. American San. Servs., Inc. v. EDM of Tex., Inc., 139 Ga. App. 662, 229 S.E.2d 136 (1976) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Former statute did not abrogate right of party to cross-examine witness called against the party. Meeks v. Lunsford, 106 Ga. App. 154, 126 S.E.2d 531 (1962) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Former O.C.G.A. § 24-3-14 must be liberally interpreted and applied. McConnell v. State, 166 Ga. App. 530, 304 S.E.2d 733 (1983) (decided under former O.C.G.A. § 24-3-14).

- Business record exception is an exception to the hearsay rule, and not a general exception to the confrontation clause. Adams v. State, 217 Ga. App. 706, 459 S.E.2d 182 (1995) (decided under former O.C.G.A. § 24-3-14).

- In a case when a summary of business records was properly admitted and the figures so introduced were relied upon by another witness, there was no violation of defendant's right of confrontation. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Records which noted the contents of a conversation rather than an act, transaction, occurrence, or event were not eligible for the business records exception to the hearsay rule. Mitchell v. State, 254 Ga. 353, 329 S.E.2d 481 (1985) (decided under former O.C.G.A. § 24-3-14).

Reason for reasonable time requirement is so the entry might appear to have taken place while the memory of the fact was recent, or the source from which the knowledge of it was derived was unimpaired. Martin v. Glenn's Furn. Co., 126 Ga. App. 692, 191 S.E.2d 567 (1972) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Former Ga. L. 1952, p. 177, §§ 1, 2, 3 contained what was referred to by courts of other states and textbooks as the "Uniform Business Records as Evidence" statute. There was no material difference in the former Georgia statute and similar statutes of the other states. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 99 S.E.2d 370 (1957), for comment, see 20 Ga. B.J. 381 (1958) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Books contemplated by this exception are permanent books. Bush v. Fourcher, 3 Ga. App. 43, 59 S.E. 459 (1907) (decided under former law); Eley v. Holden, 48 Ga. App. 152, 172 S.E. 75 (1933);(decided under former law).

- In an action on a loan, a bank did not submit sufficient evidence to prove the bank's damages because a printout of the bank's electronic records reflecting the amounts then owed, without a detailed transaction history, was a summary requiring evidence that the underlying records were too voluminous to examine in court pursuant to O.C.G.A. § 24-10-1006, not a business record under O.C.G.A. § 24-8-803(6). D'Agnese v. Wells Fargo Bank, N.A., 335 Ga. App. 659, 782 S.E.2d 714 (2016).

- Requirement that entries be made in the ordinary course of business can be waived. Finch v. Caldwell, 155 Ga. App. 813, 273 S.E.2d 216 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Trial court erred in admitting money orders stamped "apparent counterfeit" during the defendant's trial for forgery in the first degree, O.C.G.A. § 16-9-1(a), because the stamped money orders constituted inadmissible hearsay; the testimony of a bank's chief financial officer indicated that the determination that the money orders were counterfeit was a conclusion or opinion made by a third party institution, whose representatives did not testify at trial and, thus, the money orders were inadmissible as a business record under former O.C.G.A. § 24-3-14(b) to prove that the money orders were counterfeit. Holmes v. State, 315 Ga. App. 812, 727 S.E.2d 520 (2012) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not plainly err in admitting the victim's medical records under the business records exception to the hearsay rule because the victim testified directly as to the victim's injuries, rendering much of the evidence contained in the records cumulative and, thus, the defendant could not show that the outcome would have been different absent the admission of the medical records. Smith v. State, 354 Ga. App. 782, 841 S.E.2d 444 (2020).

2. Procedural Considerations

a. Foundation for Admission

- Once a certificate of inspection is completed as specified under former O.C.G.A. § 24-3-14, the certificate is admissible in any court of law without further proof, and a further foundation for admission under the business records exception to the hearsay rule is rendered unnecessary. State v. Haddock, 235 Ga. App. 726, 510 S.E.2d 561 (1998) (decided under former O.C.G.A. § 24-3-14).

- Before a writing or record is admissible under subsection (b) of former O.C.G.A. § 24-3-14, a foundation must be laid through the testimony of a witness who is familiar with the method of keeping records and who can testify thereto and to facts which show that the entry was made in the regular course of business at the time of the event or within a reasonable time thereafter. Suarez v. Suarez, 257 Ga. 102, 355 S.E.2d 649 (1987) (decided under former O.C.G.A. § 24-3-14).

In an action in which the victim was awarded restitution for tools and equipment taken from a stolen truck, all that was required was that a foundation be laid through the testimony of a witness who was familiar with the method of keeping the record of the list of equipment and tools normally found on the truck who could testify thereto, and to facts which showed that the entry was made in the regular course of business at the time of the event or within a reasonable time thereafter. Tindol v. State, 284 Ga. App. 45, 643 S.E.2d 329 (2007) (decided under former O.C.G.A. § 24-3-14).

Preliminary proof is necessary before the writing or record is admissible. The evidence should include identification of the writing or record by a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of business and that it was the regular course of the business to make such memorandum or record at the time of the event or within a reasonable time thereafter. Walburn v. Taunton, 107 Ga. App. 411, 130 S.E.2d 279 (1963) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Cassano v. Pilgreen's, Inc., 117 Ga. App. 260, 160 S.E.2d 439 (1968);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Absent preliminary proof required to qualify statements as to facts, the knowledge of which were obtained from records not personally kept by testifying witness, had no probative value. Eatonton Oil & Auto Co. v. Greene County, 53 Ga. App. 145, 185 S.E. 296 (1936) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979); Harris v. Collins, 149 Ga. App. 638, 255 S.E.2d 107 (1979) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Hill Aircraft & Leasing Corp. v. Planes, Inc., 158 Ga. App. 151, 279 S.E.2d 250 (1981);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under former O.C.G.A. § 24-3-14).

When defendant submitted an unsigned document purported to be in the plaintiff's handwriting, but was not able to locate anyone who could identify the document, defendant was unable to produce the required foundation testimony, and the document was properly excluded. Metropolitan Atlanta Rapid Transit Authority v. Green Int'l, Inc., 235 Ga. App. 419, 509 S.E.2d 674 (1998) (decided under former O.C.G.A. § 24-3-14).

Condominium declarations which were submitted by a condominium unit neighbor in an action against another condominium unit owner were hearsay under former O.C.G.A. § 24-3-1(a). However, the neighbor did not present admissible evidence of the heightened duty of care allegedly imposed by the declarations so that duty, therefore, could not be considered on summary judgment under former O.C.G.A. § 24-3-14(b). Karle v. Belle, 310 Ga. App. 115, 712 S.E.2d 96 (2011) (decided under former O.C.G.A. § 24-3-14).

- Witness's testimony is inadmissible in the absence of any authentication of the records which the witness's testimony is purported to track. Hall v. State, 244 Ga. 86, 259 S.E.2d 41 (1979) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

In the absence of authentication by the issuing officer or testimony of the witness officers that the license tag number on the traffic ticket accurately reflected the license tag number of the car the witnesses saw appellant driving, the citations were hearsay as to the identity of the license tag number. Since the proper foundation was not laid, the tickets did not qualify for the business record exception to the hearsay rule. Curtis v. State, 190 Ga. App. 173, 378 S.E.2d 516 (1989) (decided under former O.C.G.A. § 24-3-14).

An uncertified copy of a check was properly excluded since the witness had no personal knowledge of the transaction or the making of the copy and provided conflicting testimony about the witness's familiarity with the business practices or regular course of dealing. U.B. Vehicle Leasing, Inc. v. Vision Int'l, Inc., 224 Ga. App. 611, 481 S.E.2d 597 (1997) (decided under former O.C.G.A. § 24-3-14).

Ride safety checklist had not been authenticated as a business record and thus was merely inadmissible hearsay that could not be considered as evidence in support of a motion for summary judgment. Valentin v. Six Flags Over Ga., L.P., 286 Ga. App. 508, 649 S.E.2d 809 (2007) (decided under former O.C.G.A. § 24-3-14).

Trial court erred by granting summary judgment to a condominium association for past due sums because the only evidence offered to support those claims, namely an account ledger and an affidavit with unsupported testimony from the property manager regarding the amounts owed, was inadmissible hearsay; thus, the damages sought were not sufficiently certain. Hayek v. Chastain Park Condo. Ass'n, 329 Ga. App. 164, 764 S.E.2d 183 (2014).

In a wrongful foreclosure action, the trial court did not err by admitting evidence of an affidavit from a bank official because the plaintiffs were clearly on notice that the bank sought to introduce the bank records as business records, and the official had sufficiently authenticated the bank records relied upon and attached to the affidavit. Salas v. JP Morgan Chase Bank, N.A., 334 Ga. App. 274, 779 S.E.2d 48 (2015).

- It was not necessary that a witness identifying business records have personal knowledge of the correctness of the records or have actually made the entries personally. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 99 S.E.2d 370 (1957) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3) for comment, see 20 Ga. B.J. 381 1958; Seaboard Coast Line R.R. v. Smalley, 127 Ga. App. 652, 194 S.E.2d 612 (1972); Welborn v. State, 132 Ga. App. 207, 207 S.E.2d 688 (1974) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 223 S.E.2d 757 (1976); F.N.B. Fin. Co. v. Glaze Tire Co., 140 Ga. App. 184, 230 S.E.2d 342 (1976) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Smith v. Bank of S., 141 Ga. App. 114, 232 S.E.2d 629 (1977); Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Bentley v. State, 153 Ga. App. 410, 265 S.E.2d 293 (1980); Whittington v. State, 155 Ga. App. 667, 272 S.E.2d 532 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 291 S.E.2d 238 (1982); Murphy v. State, 182 Ga. App. 791, 357 S.E.2d 147 (1987) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under former O.C.G.A. § 24-3-14);(decided under former O.C.G.A. § 24-3-14).

Witness identifying business records under former O.C.G.A. § 24-3-14 does not have to have personal knowledge of the correctness of the records or have made the entry personally. Hertz Corp. v. McCray, 198 Ga. App. 484, 402 S.E.2d 298 (1991) (decided under former O.C.G.A. § 24-3-14).

There is no requirement that in order to lay a proper foundation for the admission of a certificate of inspection under the business record exception, the person who conducted the inspection of the machine, or someone who actually witnessed the inspection, appear in court to testify about the inspection or the completion of the certificate. State v. Haddock, 235 Ga. App. 726, 510 S.E.2d 561 (1998) (decided under former O.C.G.A. § 24-3-14).

There was no error in denying the property owner's motion to strike virtually all of the evidence against the owner; the trial judge was authorized to admit the tax documents into evidence as records made in the regular course of business under former O.C.G.A. § 24-3-14(b) because the testimony of the custodian of the sheriff department's tax levy files and an employee of the county tax commissioner's delinquent tax division, even without personal knowledge, was sufficient to authorize finding that the witnesses were familiar with the method of keeping the records and that the documents were made in the regular course of business at the time of the events. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901, 625 S.E.2d 46 (2005) (decided under former O.C.G.A. § 24-3-14).

Trial court did not err in admitting a copy of the defendant's fingerprint card, pursuant to former O.C.G.A. §§ 24-3-14 and24-5-26 (see now O.C.G.A. §§ 24-8-803 and24-10-1003), despite the defendant's claim that the testifying witness lacked personal knowledge with regard to the circumstances or time of the creation or transmission of the card, as the card itself showed that the card was created and transmitted at the time of the defendant's arrest, and was handled in the gathering agency's regular and routine course of business. Tubbs v. State, 283 Ga. App. 578, 642 S.E.2d 205 (2007) (decided under former O.C.G.A. § 24-3-14).

- Georgia Business Records Act, former O.C.G.A. § 24-3-14, does not require that the person laying the foundation for business records' admissibility be the custodian of the records, that is, be the person who "keeps the records" under that person's "control and supervision." Hertz Corp. v. McCray, 198 Ga. App. 484, 402 S.E.2d 298 (1991) (decided under former O.C.G.A. § 24-3-14).

In a negligence action seeking compensatory damages for a disabling injury, the trial court did not err in admitting certain prescription drug records pertaining to the injured plaintiff as a pharmacist presented sufficient testimony to satisfy the foundational requirements necessary for admission under the business records exception to the hearsay rule. Imm v. Chaney, 287 Ga. App. 606, 651 S.E.2d 855 (2007) (decided under former O.C.G.A. § 24-3-14).

Housekeeping supervisor of a motel where a victim was found dead of strangulation after being seen with a defendant could properly lay the foundation for the motel's lock interrogation log as the record only had to be made in the regular course of business at the time of the transaction; any lack of personal knowledge by the supervisor as to how the records were created only went to the weight of the evidence. Hamilton v. State, 297 Ga. App. 47, 676 S.E.2d 773 (2009) (decided under former O.C.G.A. § 24-3-14).

Testimony of a bank officer may provide the required foundation for business records. Shannon v. Toronto-Dominion Bank, 168 Ga. App. 279, 308 S.E.2d 682 (1983) (decided under former O.C.G.A. § 24-3-14).

- The affidavit of a bank records custodian was properly admitted in support of the bank's motion for summary judgment under former O.C.G.A. § 24-3-14(b). The custodian averred that the custodian was the records custodian for the bank and that the records filed with the custodian's affidavit were maintained in the regular and ordinary course of business and that the transactions were recorded contemporaneously with the events as they occurred. Vadde v. Bank of Am., 301 Ga. App. 475, 687 S.E.2d 880 (2009), cert. denied, No. S10C0624, 2010 Ga. LEXIS 338 (Ga. 2010); cert. denied, 131 S. Ct. 298, 178 L. Ed. 2d 143 (2010) (decided under former O.C.G.A. § 24-3-14).

In questions of proof of business records stored on tape on electronic computing equipment, the proper foundation to be laid was the same as that for business records of any other type or description. Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 223 S.E.2d 757 (1976) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Police officer was qualified to lay foundation for introduction of accident report prepared by another officer since testifying officer was able to testify as to the preparation and keeping of such reports. Reed v. Heffernan, 171 Ga. App. 83, 318 S.E.2d 700 (1984) (decided under former O.C.G.A. § 24-3-14).

Any alleged inaccuracies in a ledger would go to weight and not to admissibility. Murphy v. State, 182 Ga. App. 791, 357 S.E.2d 147 (1987) (decided under former O.C.G.A. § 24-3-14).

- When the blood-alcohol test was performed pursuant to the medical treatment of the plaintiff and recorded in the regular course of hospital business, and it was not administered for the purpose of determining whether plaintiff violated O.C.G.A. § 40-6-391, it was not necessary that defendant establish compliance with § 40-6-391 to render the test results admissible; the blood test results thus recorded in the regular course of hospital business were admissible under former O.C.G.A. § 24-3-14. Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 278 S.E.2d 669, cert. dismissed, 248 Ga. 429, 285 S.E.2d 186 (1981) (decided under former O.C.G.A. § 24-3-14).

- Medical records certified by the records custodian of a hospital showing the results of an independent chemical test requested by defendant in a drunk driving case were not admissible without further foundational evidence that would satisfy the requirements of the business records exception to the hearsay rule. Brahm v. State, 230 Ga. App. 407, 497 S.E.2d 240 (1998) (decided under former O.C.G.A. § 24-3-14).

- Mere recital in the motion for a new trial that the preliminary proof of the requirements for admissibility of documentary evidence was lacking was insufficient to show that as a matter of fact such preliminary proof was not made, and the reviewing court must presume that such preliminary proof was made and affirm the action of the trial judge in admitting the evidence. Gray v. General Fin. Corp., 108 Ga. App. 586, 134 S.E.2d 58 (1963) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

State laid the proper foundation for the admission of certificates of equipment testing when two witnesses testified to them having been made within a reasonable time of the testing, and the notary jurat for each certificate confirmed the certificate was filled out on the day of inspection. Davis v. State, 236 Ga. App. 32, 510 S.E.2d 889 (1999), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018) (decided under former O.C.G.A. § 24-3-14).

When a patrolman testified that certificates of inspection were generated in the police department's ordinary course of business, made at the time the breath analyzer was inspected, and kept along side the machine, this evidence was sufficient to satisfy the foundational requisites for the admission of the certificates as business records. Brandon v. State, 236 Ga. App. 203, 511 S.E.2d 573 (1999) (decided under former O.C.G.A. § 24-3-14).

- Professional association did not fail to lay the proper foundation for admission of computer printouts under the business records exception to the hearsay rule in order to establish the amount owed to a client for professional services since the president of the firm described of the president's own personal knowledge how the computer printouts were developed and how the printouts were used in determining what a client owed. Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Trial court did not err by admitting into evidence two accident reports created by a driver's supervisor because the supervisor made the reports in the regular course of business shortly after the collision occurred based on what the driver had told the supervisor, and both the driver and the supervisor testified at trial and were available for cross examination. Lee v. Thomason, 277 Ga. App. 573, 627 S.E.2d 168 (2006) (decided under former O.C.G.A. § 24-3-14).

In a criminal case where the victim was robbed of a cellular telephone, the telephone records were properly admitted under former O.C.G.A. § 24-3-14; the testimony of the telephone company's records custodian provided the necessary foundation for the records to be introduced into evidence, and the custodian's lack of personal knowledge as to how the records were actually printed out affected their weight, not their admissibility. Santana v. State, 283 Ga. App. 696, 642 S.E.2d 390 (2007) (decided under former O.C.G.A. § 24-3-14).

State laid the foundation for admission of a hospital-administered blood alcohol test as a routine business record with the testimony of two witnesses, and admission of the results of the test was proper; a custodian of medical records testified that when a blood test was completed in the hospital, the results were printed out then entered into the hospital computer system in the normal course of business, the printout was stored as a hard copy, and the printout contained only the factual data of the test results and a lab manager familiar with the usual practices and policies of the emergency room testified that it was the normal procedure of emergency room personnel to draw a patient's blood once the patient was admitted, before the patient has been seen by an attending physician. The certified copy of the test results printout showed that the defendant's blood was drawn within the normal procedures of the hospital. Daniel v. State, 298 Ga. App. 245, 679 S.E.2d 811 (2009) (decided under former O.C.G.A. § 24-3-14).

A "cash for keys" agreement entered into between a former owner's tenant and the new owner following a foreclosure sale was admissible in the former owner's wrongful eviction suit under the business record exception to the hearsay rule; the agreement was authenticated in the affidavit of the person who signed the agreement and witnessed the tenant sign the agreement, and the custodian testified by affidavit that the agreement was one of the custodian's own business records that were maintained in the regular course of business. Steed v. Fed. Nat'l Mortg. Corp., 301 Ga. App. 801, 689 S.E.2d 843 (2009) (decided under former O.C.G.A. § 24-3-14).

Arresting officer's testimony laid a sufficient foundation for the introduction of a department of public safety roadblock approval form into evidence under the business records exception to the hearsay rule, former O.C.G.A. § 24-3-14, because the officer testified that the form was a type of document kept in the regular course of business at the Georgia State Patrol. Hite v. State, 315 Ga. App. 221, 726 S.E.2d 704 (2012), cert. denied, No. S12C1286, 2012 Ga. LEXIS 1020 (Ga. 2012) (decided under former O.C.G.A. § 24-3-14).

Trial court properly admitted the bank's loan history report as a business record because the report provided a description of each transaction relating to the estate's loan from the loan's inception, along with a corresponding posting date for each transaction, the transaction amount, and any change to the principal balance resulting from the transaction, and was not a summary. Roberts v. Cmty. & S. Bank, 331 Ga. App. 364, 771 S.E.2d 68 (2015).

Individual guarantors were personally liable on a lease because the guaranty was in writing, the lease identified all of the essential parties and obligations, and the guarantors signed the guaranty as required by O.C.G.A. § 13-5-30(2); the guaranty was admissible as the lessor's successor's business record under O.C.G.A. § 24-8-803(6). Triple T-Bar, LLC v. DDR Southeast Springfield, LLC, 330 Ga. App. 847, 769 S.E.2d 586 (2015).

Fact that a witness never worked at the originating bank and did not have firsthand knowledge of the bank's record-keeping practices did not mean that the witness could not authenticate the bank's business records as the witness testified that the witness knew how the transaction statement was prepared, that the statement was made and kept in the regular course of the bank's business activity, and that it was the bank's regular business practice to make and keep such records. Matthews v. Wells Fargo Bank, N.A., 335 Ga. App. 526, 782 S.E.2d 312 (2016).

Trial court did not err in admitting cell phone records because the information was obtained from a third party and a proper foundation was laid pursuant to the business records exception. Marchman v. State, 299 Ga. 534, 787 S.E.2d 734 (2016).

- Trooper testified that the trooper was familiar with the book in which the records were maintained, but the trooper did not know if the documents were made contemporaneously with the testing; therefore, the trooper's testimony did not satisfy the foundational requirements. Mullinax v. State, 231 Ga. App. 534, 499 S.E.2d 903 (1998) (decided under former O.C.G.A. § 24-3-14).

Disciplinary reports of a Diversion Center were not admissible as business records absent inquiry as to whether it was in the regular course of the Center's control officer to make an incident or disciplinary report and whether the reports were in fact made in the regular course of the Center's business. Kendrick v. State, 240 Ga. App. 530, 523 S.E.2d 414 (1999) (decided under former O.C.G.A. § 24-3-14).

State failed to lay the foundation required to admit hearsay under the business records exception when a police sergeant testified that reports were "copies of the typewritten reports submitted by an officer of the police department" and that the officer retrieved the reports from the police files, but the officer gave no testimony regarding the preparation and keeping of the reports. Johnson v. State, 247 Ga. App. 660, 544 S.E.2d 496 (2001) (decided under former O.C.G.A. § 24-3-14).

Trial court properly ruled in favor of a subdivision association board of directors as to claims by the owner of a development company that the board erred in charging water service and building fees because the owner failed to show that any damages were suffered as a result of the imposition of the fees, as the trial court properly excluded computer records concerning the fees, as the records did not meet the former O.C.G.A. § 24-3-14 standard for the business records hearsay exception as the owner did not testify that the writings proffered were made in the regular course of business at the time of the underlying transaction or within a reasonable time thereafter. Crawford v. Dammann, 277 Ga. App. 442, 626 S.E.2d 632 (2006) (decided under former O.C.G.A. § 24-3-14).

In an action to recover the balance of the money owed under a loan, because the guarantor of the loan failed to show the lack of an adequate foundation for the admitted evidence, a claim that the trial court erred in admitting the loan history report as a business record failed; hence, the proponent bank was properly granted summary judgment on the issue. Ishak v. First Flag Bank, 283 Ga. App. 517, 642 S.E.2d 143 (2007) (decided under former O.C.G.A. § 24-3-14).

Worker injured while using an elevator had not shown that reports purportedly generated by elevator maintenance company fell within the business records exception to the hearsay rule; company's service technician was unfamiliar with the reports and did not testify that the reports were made in the regular course of business. Henson v. Georgia-Pacific Corp., 289 Ga. App. 777, 658 S.E.2d 391 (2008) (decided under former O.C.G.A. § 24-3-14).

Trial court erred in admitting the state's exhibits, which were copies of two traffic citations stamped "FTA," pursuant to former O.C.G.A. § 24-5-20 (see now O.C.G.A. § 24-10-1005) without any determination that the exhibits fell within an exception to the rule prohibiting the use of hearsay because the state introduced the exhibits to prove the truth of the statement of the unidentified person who stamped "FTA" on the citations that the defendant failed to appear for the defendant's court date, and despite defendant's objection to the documents as hearsay, the state argued only the issue of authentication and never identified any exception to the rule prohibiting hearsay that would authorize admitting the documents; the state failed to lay the required foundation for the application of the business records exception, former O.C.G.A. § 24-3-14(b), because the state did not call any witness to provide the required foundation. McKinley v. State, 303 Ga. App. 203, 692 S.E.2d 787 (2010) (decided under former O.C.G.A. § 24-3-14).

- Assuming a proper foundation was not presented for the introduction of medical records at defendant's trial for battery, any error in admitting the records was harmless since the records were not critical but merely cumulative evidence showing the extent of the victim's injuries. Flowers v. State, 181 Ga. App. 572, 353 S.E.2d 69 (1987) (decided under former O.C.G.A. § 24-3-14).

- Following an apartment resident's death due to asthma, allegedly linked to a gas leak in the apartment, testimony from a friend that an unknown person was reading from a paper outside the apartment that the resident had called to report a gas leak was inadmissible hearsay within hearsay. There was no evidence that the paper was a business record of the gas company, such as a logo or trademark on the paper. Goodhart v. Atlanta Gas Light Company, 349 Ga. App. 65, 825 S.E.2d 465 (2019).

b. Weight and Credibility

Questions for jury.

- Credibility, both of the books and of the party, is to be weighed by the jury, and depends upon various circumstances of which the jury are the judges. Taylor v. Tucker, 1 Ga. 231 (1846) (decided under former law); Allstate Ins. Co. v. Buck, 96 Ga. App. 376, 100 S.E.2d 142 (1957); Seaboard Coast Line R.R. v. Hart, 120 Ga. App. 492, 171 S.E.2d 383 (1969) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

All circumstances may be shown to affect weight of evidence but not the admissibility of the evidence. Hurst v. Jackson, 134 Ga. App. 129, 213 S.E.2d 511 (1975) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Serve v. First Nat'l Bank, 143 Ga. App. 239, 237 S.E.2d 719 (1977);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Trial court did not err in admitting a podiatrist's medical records on a patient into evidence in a medical malpractice suit as the circumstances of the making of the records could be shown to affect the weight of the evidence; but the circumstances could not affect the admissibility of the records. Kohl v. Tirado, 256 Ga. App. 681, 569 S.E.2d 576 (2002) (decided under former O.C.G.A. § 24-3-14).

Physical appearance of records and their self-serving nature are questions that go to the weight of the evidence but not to admissibility. Whitehead v. Joiner, 234 Ga. 457, 216 S.E.2d 317 (1975) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Hall v. State, 239 Ga. 832, 238 S.E.2d 912 (1977);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Dispute over accuracy of record and of the witness's recollection affects only the weight to be given the record by the jury. Don Howard's Music Mart, Inc. v. Southern Bell Tel. & Tel. Co., 154 Ga. App. 648, 269 S.E.2d 506 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Irregularities in account books sought to be introduced in evidence should be exceedingly gross and palpable to justify the court in arresting the evidence from that tribunal whose peculiar province it is to judge of the credibility of testimony. Bush v. Fourcher, 3 Ga. App. 43, 59 S.E. 459 (1907) (decided under former law).

- When the blood-alcohol test results are properly admitted as a business record, gaps in the chain of custody of the blood sample admitted as part of the hospital record do not affect the admissibility of the test results but merely go to the weight of the evidence accorded by the jury. Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 278 S.E.2d 669, cert. dismissed, 248 Ga. 254, 285 S.E.2d 186 (1981) (decided under former O.C.G.A. § 24-3-14).

- In a suit by a bank, the defendant having introduced in evidence the books of the bank, the defendant cannot impeach the books as a whole, but may show that particular items in the books are wrong and disprove those items, and that by mistake or fraud they have been improperly kept. Merchants' Bank v. Rawls, 7 Ga. 191, 50 Am. Dec. 394 (1849) (decided under former law).

When document offered in evidence is admissible in part and inadmissible in part, and objection is made to the document as a whole, it is not error to admit the whole document. Stubbs v. Daughtry, 115 Ga. App. 22, 153 S.E.2d 633 (1967) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- If it is desired by either side that a police report of accident be introduced in evidence after the foundation is laid, the report will not be offered unless all parts of the report containing objectionable material are first deleted. Calhoun v. Chappell, 117 Ga. App. 865, 162 S.E.2d 300 (1968) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- When defendant was offered two opportunities to identify objectionable portions of hospital records and was given time to review the records for that purpose, defendant's failure to identify objectionable portions resulted in a waiver of defendant's hearsay objection. Corbett v. State, 266 Ga. 561, 468 S.E.2d 757 (1996) (decided under former O.C.G.A. § 24-3-14).

- If a hospital record contains diagnostic opinions and conclusions, the record cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based. Cassano v. Pilgreen's, Inc., 117 Ga. App. 260, 160 S.E.2d 439 (1968) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

When the document as a whole contained conclusions, opinions, estimates, impressions, and recommendations of a third party not before the court the document was not admissible as a whole. Hurt v. State, 239 Ga. 665, 238 S.E.2d 542 (1977) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

3. Applications and Illustrations

Prima facie evidence.

- When the books conform to the provisions of the former statute, the books themselves stand as a witness of the correctness of the account and make a prima facie case which shifted the burden of proof to the defendant debtor to show the items contained in the books, or some of the items, were not correct. Chambers v. Williams Bros. Lumber Co., 80 Ga. App. 38, 55 S.E.2d 244 (1949) (decided under former law); International Bus. Consulting, Ltd. v. First Union Nat'l Bank, 192 Ga. App. 742, 386 S.E.2d 400 (1989);(decided under former O.C.G.A. § 24-3-14).

Books of account when admitted under the former statute were prima facie evidence of the facts the books state, and when not contradicted or explained could become conclusive. Wright v. Trust Co., 108 Ga. App. 783, 134 S.E.2d 457 (1963) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Admission by defendant in defendant's testimony, that defendant bought of plaintiffs the articles set forth in the account sued on, the price being attached to each article, establishes prima facie the correctness of the account. F.N.B. Fin. Co. v. Glaze Tire Co., 140 Ga. App. 184, 230 S.E.2d 342 (1976) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

If a business record is qualified according to the statutory standard it may be admissible to prove the truth of the fact stated therein. Moore v. State, 154 Ga. App. 535, 268 S.E.2d 706 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- As a general rule, the testimony of a person who has knowledge of the facts from which books of account are made up is primary evidence as to these facts, and is admissible, whether or not the books themselves are put in evidence. Harper v. Hammond & Sons, 13 Ga. App. 238, 79 S.E. 44 (1913) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Christopher v. Georgian Co., 22 Ga. App. 707, 97 S.E. 97 (1918); Atlantic Coast Line R.R. v. Grimes, 99 Ga. App. 774, 109 S.E.2d 890 (1959) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Don Howard's Music Mart, Inc. v. Southern Bell Tel. & Tel. Co., 154 Ga. App. 648, 269 S.E.2d 506 (1980);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Business records that were admissible under the former statute were admissible against a deceased debtor. F & W Farm Serv., Inc. v. Citizens & S. Nat'l Bank, 116 Ga. App. 757, 159 S.E.2d 190 (1967) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Roberts v. Artistic Ornamental Iron Co., 124 Ga. App. 744, 186 S.E.2d 143 (1971); Glo-Ann Plastic Indus., Inc. v. Peak Textiles, Inc., 134 Ga. App. 924, 216 S.E.2d 715 (1975) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Rule that the entries of an agent, made in the course of the business, were admissible in evidence after the agent's death was recognized by former statute. Turner v. Turner, 123 Ga. 5, 50 S.E. 969 (1905) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Fact that a document was not signed by an agent or representative of the party to whom the document pertains did not affect the document's admissibility. F.N. Roberts Corp. v. Southern Bell Tel. & Tel. Co., 132 Ga. App. 800, 209 S.E.2d 138 (1974) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Auction company's business records, showing that the vehicle was announced at auction as having frame and body damage, were admissible without testimony from the inspector because the company's controller laid a sufficient foundation, averring that the controller had personal knowledge of the company's method of maintaining business records, such records were kept in the ordinary course of business, and record entries were made at or near the time of the auction and post-sale inspection. Isbell v. Credit Nation Lending Serv., LLC, 319 Ga. App. 19, 735 S.E.2d 46 (2012)(decided under former O.C.G.A. § 24-3-14).

- Information in the affidavit of the management corporation's vice president regarding the lessor's record keeping methods fell squarely within the business records exception to the hearsay rule codified at former O.C.G.A. § 24-3-14. Int'l Biochemical Indus. v. Jamestown Mgmt. Corp., 262 Ga. App. 770, 586 S.E.2d 442 (2003) (decided under former O.C.G.A. § 24-3-14).

Trial court's order granting summary judgment to a collection company and against a debtor in the former's deficiency action was upheld on appeal as it was not based on inadmissible hearsay, but upon records kept in the ordinary course of business, and thus admissible under the business records exception to the hearsay rule. Boyd v. Calvary Portfolio Servs., 285 Ga. App. 390, 646 S.E.2d 496 (2007) (decided under former O.C.G.A. § 24-3-14).

In a breach of contract action, a lender's witness was properly allowed to testify about the loan records involving the debtor sued under the business records exception to the hearsay rule as: (1) the witness testified that the records were kept in the ordinary course of the lender's business; (2) the witness was familiar with the records and the manner in which the records were kept; (3) the records were made at or near the time the documents were created or received by the lender; and (4) the records of the lender's predecessors became the records of the lender. Jenkins v. Sallie Mae, Inc., 286 Ga. App. 502, 649 S.E.2d 802 (2007) (decided under former O.C.G.A. § 24-3-14).

Trial court properly granted summary judgment to the purchaser of real estate in a quiet title action that involved the taxpayer's home and the taxpayer's failure to pay the property taxes on the property as the property was properly levied upon and no question of fact remained that the sheriff officially seized the property. Further, the affidavits of the civil process coordinator at the time of the tax sale, and the coordinator's successor, were properly admitted into evidence as such affidavits fell within the business records exception to the rule against hearsay. Davis v. Harpagon Co., LLC, 283 Ga. 539, 661 S.E.2d 545 (2008) (decided under former O.C.G.A. § 24-3-14).

In convictions of aggravated child molestation and statutory rape, defendant was not entitled to admission into evidence of a motel registration card under former O.C.G.A. § 24-3-14(b) because the defendant failed to present testimony of a motel employee, who was familiar with the motel registration card and the methods for generation and keeping the motel's business records. Flewelling v. State, 300 Ga. App. 505, 685 S.E.2d 758 (2009) (decided under former O.C.G.A. § 24-3-14).

Trial court did not abuse the court's discretion in admitting the results of a hospital-administered blood test under the business record exception to the hearsay rule, former O.C.G.A. § 24-3-14, because the defendant acquiesced in the procedure by which a lab technician identified the computer printout but did not relate the results stated thereon, and acquiescence deprived the defendant of the right to complain of the procedure on appeal; because the lab technician testified that the document tendered was an accurate copy of the result obtained, the testimony was properly admitted as original evidence. Potter v. State, 301 Ga. App. 411, 687 S.E.2d 653 (2009) (decided under former O.C.G.A. § 24-3-14).

State failed to prove that the defendant lacked the authority to possess and deliver money orders as required to support forgery convictions under O.C.G.A. § 16-9-1(a) because the trial court erred in admitting the "counterfeit" stamps on the money orders as business records under former O.C.G.A. § 24-3-14(b); the determination that the money orders were counterfeit was a conclusion made by a third party institution, whose representatives did not testify at trial, and to allow the admission of the stamp as proof that the money orders were counterfeit would deprive the defendant of the right to conduct a thorough and sifting cross-examination on the determination that the money orders were counterfeit. Forrester v. State, 315 Ga. App. 1, 726 S.E.2d 476 (2012) (decided under former O.C.G.A. § 24-3-14).

Trial court did not err in granting a bank's motion for summary judgment in the bank's action against guarantors to recover the outstanding balance on a promissory note because payoff statements, which were attached as exhibits to the affidavit of the bank's special assets manager, qualified as business records under the Business Records Act, former O.C.G.A. § 24-3-14(b), since the special assets manger testified that the manager had personal knowledge that the statements were made in the regular course of the bank's business; because the payoff statements conformed to the provisions of the Act, the statements themselves stood as a witness of the correctness of the account and made a prima facie case. Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 728 S.E.2d 854 (2012) (decided under former O.C.G.A. § 24-3-14).

Trial court did not abuse the court's discretion in admitting documents pursuant to the Business Records Act, former O.C.G.A. § 24-3-14(b), because a bank established that the affidavit of the bank's special assets manager and attached exhibits were admissible as business records; the special assets manager averred that the manager was the custodian of records for the bank, that the business records relating to a promissory note were transferred and delivered to the bank, that the documents included the original note and individual guaranties, and that the records were obtained in the regular course of business. Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 728 S.E.2d 854 (2012) (decided under former O.C.G.A. § 24-3-14).

- Attorney-in-fact for the entity serving as manager of a lender's assignee could authenticate the business records of the lender and the assignee in support of an action to collect on three promissory notes, pursuant to O.C.G.A. § 24-8-803(6); however, as to the third note, the affidavit failed to attach the payment history, and that claim failed. Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 758 S.E.2d 145 (2014).

Because the corporate victim prepared a loss prevention report in every instance of shoplifting, concerns about reliability and trustworthiness were minimized and the report was admissible as a business record. Thompson v. State, 332 Ga. App. 204, 770 S.E.2d 364 (2015), cert. denied, No. S15C1245, 2015 Ga. LEXIS 562 (Ga. 2015).

- In a creditor's action on open account, the creditor's business records showing the debtor's account and bank records showing wire transfers made by the debtor were sufficient under O.C.G.A. § 24-8-803(6) to support its contention that it was entitled to summary judgment as to the debtor's liability; because of inconsistencies, however, further proceedings were required to determine the amount the debtor owed. SKC, Inc. v. eMag Solutions, LLC, 326 Ga. App. 798, 755 S.E.2d 298 (2014).

- As telephone messages made following conversations between a party opponent and a testifying witness noted the contents of a conversation, not an act, transaction, occurrence, or event, the business records exception to the hearsay rule was inapplicable; for the contents of the party's telephone conversations to be admissible, the party would have to be given the opportunity to cross-examine the employees to whom the witness spoke with regard to the potential for misrepresenting the statements. Bailey v. Edmundson, 280 Ga. 528, 630 S.E.2d 396 (2006) (decided under former O.C.G.A. § 24-3-14).

Notations of a telephone conversation and testimony explaining the notation were not admissible under the business record exception to the hearsay rule, former O.C.G.A. § 24-2-14(b), because such notations were not considered records of a transaction, event or occurrence as contemplated by this rule. Griffin v. Bankston, 302 Ga. App. 647, 691 S.E.2d 229 (2009) (decided under former O.C.G.A. § 24-3-14).

- Trial court erroneously admitted hearsay at trial because the document reflecting a telephone conversation between a claims representative and an insured, which an insurer offered into evidence, did not constitute a business record admissible under former O.C.G.A. § 24-3-14 since the document was nothing more than a record of a conversation; the hearsay evidence went directly to the ultimate issue before the jury, and its erroneous admission was not harmless. Saye v. Provident Life & Accident Ins. Co., 311 Ga. App. 74, 714 S.E.2d 614 (2011), cert. denied, No. S11C1857, 2011 Ga. LEXIS 984 (Ga. 2011) (decided under former O.C.G.A. § 24-3-14).

Cell phone records were properly admitted under former O.C.G.A. § 24-3-14(b) after the records custodian testified that one of the records at issue listed the locations of all the company's cell phone towers during a span that included the date of the crimes and the other records showed the incoming and outgoing calls for the defendant's cell phone. Kilgore v. State, 295 Ga. 729, 763 S.E.2d 685 (2014)(decided under former O.C.G.A. § 24-3-14).

- Supervisor who was the custodian of documents showing that notice of cancellation of an insurance policy was properly mailed was not required to have actual personal knowledge of the preparation of and mailing of the notice. Stapleton v. Colonial Ins. Co., 209 Ga. App. 674, 434 S.E.2d 116 (1993) (decided under former O.C.G.A. § 24-3-14).

- See Hall v. Carey, 5 Ga. 239 (1848) (corporate books) (decided under former law); Banks v. Darden ex rel. Jerrenaud, 18 Ga. 318 (1855) (bank books) (decided under former law); Ganahl v. Shore, 24 Ga. 1 (1858) (account books) (decided under former law); Bush v. Fourcher, 3 Ga. App. 43, 59 S.E. 459 (1907) (account books of repairer) (decided under former law); Harper v. Hammond & Sons, 13 Ga. App. 238, 79 S.E. 44 (1913) (ledgers); Chambers v. Williams Bros. Lumber Co., 80 Ga. App. 38, 55 S.E.2d 244 (1949) (ledger sheets and tradesman's shop book) (decided under former law); Allstate Ins. Co. v. Buck, 96 Ga. App. 376, 100 S.E.2d 142 (1957) (invoices, delivery slips and circulation accounts) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Franco v. Bank of Forest Park, 118 Ga. App. 700, 165 S.E.2d 593 (1968) (insurance policies and bank records showing premiums deposited to accounts of issuing companies) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Hamilton v. State, 118 Ga. App. 842, 165 S.E.2d 884 (1968) (photostat copy of check identified as bank record) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Pickett v. State, 123 Ga. App. 1, 179 S.E.2d 303 (1970) (police report); Butler v. Garrison, 123 Ga. App. 645, 182 S.E.2d 185 (1971) (recorded claim for materialman's lien and invoices for materials) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Tidwell Co. v. Robley Hats, Inc., 125 Ga. App. 102, 186 S.E.2d 489 (1971) (fire department records) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Smith v. Smith, 125 Ga. App. 257, 187 S.E.2d 330 (1972) (x-rays) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Harris v. United States Fid. & Guar. Co., 134 Ga. App. 739, 216 S.E.2d 127 (1975) (mailing list constituting post office receipt for mailing) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Lawson v. State, 236 Ga. 770, 225 S.E.2d 258, cert. denied, 429 U.S. 857, 97 S. Ct. 156, 50 L. Ed. 2d 134, cert. denied, 429 U.S. 859, 97 S. Ct. 159, 50 L. Ed. 2d 136 (1976) (registration of particular phone) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Bramblett v. State, 139 Ga. App. 745, 229 S.E.2d 484 (1976), aff'd, 239 Ga. 336, 236 S.E.2d 580 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978) (return of search warrant) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Benn v. McBride, 140 Ga. App. 698, 231 S.E.2d 438 (1976) (invoices) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Tillman & Deal Farm Supply, Inc. v. Deal, 146 Ga. App. 232, 246 S.E.2d 138 (1978) (laboratory tests records) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); SCM Corp. v. Thermo Structural Prods., Inc., 153 Ga. App. 372, 265 S.E.2d 598 (1980) (annual tax return) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Graham v. State, 154 Ga. App. 198, 267 S.E.2d 842 (1980) (computer printouts) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Wiggins v. State, 249 Ga. 302, 290 S.E.2d 427 (1982) (certifications from manufacturer regarding radar device; records of Department of Public Safety kept for use in speeding cases) (decided under former O.C.G.A. § 24-3-14); Zipperer v. State, 162 Ga. App. 775, 293 S.E.2d 44 (1982) (probationer's travel permits in probation revocation proceeding) (decided under former O.C.G.A. § 24-3-14); Boatner v. Kandul, 180 Ga. App. 234, 348 S.E.2d 753 (1986) (ledger book) (decided under former O.C.G.A. § 24-3-14); White v. State, 263 Ga. 94, 428 S.E.2d 789 (1993) (Red Cross blood testing) (decided under former O.C.G.A. § 24-3-14); Morris v. National W. Life Ins. Co., 208 Ga. App. 443, 430 S.E.2d 813 (1993) (computer-generated summaries) (decided under former O.C.G.A. § 24-3-14); Gee v. State, 210 Ga. App. 60, 435 S.E.2d 275 (1993) (hospital intake record) (decided under former O.C.G.A. § 24-3-14); Stephens v. Howard, 221 Ga. App. 469, 471 S.E.2d 898 (1996) (physical therapist's report prepared for treating physician) (decided under former O.C.G.A. § 24-3-14); Neill v. State, 247 Ga. App. 152, 543 S.E.2d 436 (2000) (hotel registration card) (decided under former O.C.G.A. § 24-3-14).

- In an action seeking reformation of an option contract, even assuming the trial court erred in admitting a lawyer's handwritten notes indicating that an option contract was to include all of the decedent's land because such notes were inadmissible hearsay, the estate failed to show reversible error because there was other evidence to support the court's ruling. Morris v. Morris, 282 Ga. App. 127, 637 S.E.2d 838 (2006) (decided under former O.C.G.A. § 24-3-14).

- When routine, factual documents are made by one business, transmitted, or delivered to a second business, and there entered or kept by the second business in the regular course of business of the receiving business, the documents can become business records of the receiving business. Moore v. State, 154 Ga. App. 535, 268 S.E.2d 706 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Jackson v. State, 209 Ga. App. 217, 433 S.E.2d 655 (1993);(decided under former O.C.G.A. § 24-3-14).

Sufficient evidence supported defendant's convictions for two counts of theft by deception based on defendant withdrawing the contents of two bank accounts after depositing checks from other banks into the accounts that were eventually dishonored because the dishonored checks were properly admitted into evidence without testimony from the payor banks as the checks became the business records of the bank from which funds were withdrawn, since there was testimony that the bank received, relied upon, and retained the checks in the regular course of the bank's business, as well as testimony from the bank establishing a foundation for admitting the checks. Ross v. State, 298 Ga. App. 525, 680 S.E.2d 435 (2009) (decided under former O.C.G.A. § 24-3-14).

- Former statute did not authorize the introduction of papers containing the opinions of experts or the diagnosis of physicians. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 99 S.E.2d 370 (1957) For comment, see 20 Ga. B.J. 381 (1958) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Meeks v. Lunsford, 106 Ga. App. 154, 126 S.E.2d 531 (1962) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

When a report was the opinion of the persons making the report and was based, at least to some extent, on what was reported to the people by unidentified persons, it was not admissible in evidence. Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438, 103 S.E.2d 138 (1958), for comment, see 22 Ga. B.J. 100 (1959) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Business record containing hearsay opinions is not generally admissible. Wallis v. Odom, 130 Ga. App. 437, 203 S.E.2d 613 (1973) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Business records must be reflective of an act, occurrence, or event, and not an opinion. Finch v. Caldwell, 155 Ga. App. 813, 273 S.E.2d 216 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Affidavits by company officials concerning alleged forgeries that were not memoranda or records of acts, transactions, occurrences, or events and that contained inadmissible opinions and conclusions were not admissible as business records. Adams v. State, 217 Ga. App. 706, 459 S.E.2d 182 (1995) (decided under former O.C.G.A. § 24-3-14).

Even though an affidavit in support of a motion for summary judgment did not recite that the affidavit was made from the affiant's personal knowledge, it was admissible because the affidavit set forth the affiant's title and responsibilities and included attached documents made and kept in the ordinary course of business. Kondo v. Marietta Toyota, Inc., 224 Ga. App. 490, 480 S.E.2d 851 (1997) (decided under former O.C.G.A. § 24-3-14).

As the affidavits of an assignee's chief financial officer (CFO) showed that the CFO's knowledge of the facts sworn to was based on the CFO's review of the attached business records and not personal knowledge, the affidavits were inadmissible hearsay. Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 679 S.E.2d 57 (2009) (decided under former O.C.G.A. § 24-3-14).

- Testimony by attorney, who handled right of way acquisitions and maintained corporate records regarding rights of way for defendant corporation, as to width of the defendant's right of way was relevant background information that the attorney could testify to both from the attorney's personal knowledge and from corporate business records. Simpson v. Colonial Pipeline Co., 269 Ga. 520, 499 S.E.2d 634 (1998) (decided under former O.C.G.A. § 24-3-14).

Affidavit of an official made after a review of business records which were in the official's care, custody, and control, and which were maintained in the course of the company's business, was admissible. Carter v. Tokai Fin. Servs., Inc., 231 Ga. App. 755, 500 S.E.2d 638 (1998) (decided under former O.C.G.A. § 24-3-14).

- Since there was no testimony to the effect that a card or record was customarily made in the due course of business and since the card or record was not introduced in evidence as a record made in the due course of business, the admission of testimony as to the contents of the card or record was erroneous. Hardy v. Waits, 97 Ga. App. 580, 104 S.E.2d 136, rev'd on other grounds, 214 Ga. 495, 105 S.E.2d 719 (1958) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Testimony concerning the content of records, unsupported in the evidence by the records themselves, which are never offered in evidence should be excluded as hearsay. Foster v. National Ideal Co., 119 Ga. App. 773, 168 S.E.2d 872 (1969) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

- Individual documents could be compiled and admitted as a group, even though the documents were not kept together by the business as one record since each of the documents was made in the regular course of business and was kept as a business record. Archer Motor Co. v. International Bus. Inv., Inc., 193 Ga. App. 86, 386 S.E.2d 918 (1989) (decided under former O.C.G.A. § 24-3-14).

- When pertinent and essential facts can be ascertained only by an examination of a large number of entries in books of account, an auditor or an expert accountant who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of the expert's investigation, provided the books themselves are accessible to the court and the parties. Bible v. Somers Constr. Co., 197 Ga. 761, 30 S.E.2d 623 (1944) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 223 S.E.2d 757 (1976); Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Extracts, summaries, and transcripts provided by one business purely as information to the second business clearly did not fall within the former statute. Moore v. State, 154 Ga. App. 535, 268 S.E.2d 706 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Monthly statements which were either drafted by president of firm or prepared under the president's supervision were admissible as summaries of computer printouts which were already in evidence. Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

When invoices of business records were admissible under former O.C.G.A. § 24-3-14(b), an account statement that was a summary of the invoices therein was admissible. Walter R. Thomas Assocs. v. Media Dynamite, Inc., 284 Ga. App. 413, 643 S.E.2d 883 (2007) (decided under former O.C.G.A. § 24-3-14).

Trial court abused the court's discretion by considering a one-page summary of the amount owed under a lease in determining damages because the record a landlord submitted was not a business record under former O.C.G.A. § 24-3-14 but was a summary of such records; no underlying business records were available to the trial court or the guarantor. Patterson v. Bennett St. Props., 314 Ga. App. 896, 726 S.E.2d 147 (2012) (decided under former O.C.G.A. § 24-3-14).

- Former statute did not go to the extent of rendering admissible self-serving memoranda. Maryfield Plantation, Inc. v. Harris Gin Co., 116 Ga. App. 744, 159 S.E.2d 125 (1967) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 287 S.E.2d 257 (1981);(decided under former O.C.G.A. § 24-3-14).

Document did not qualify as a business record since the document was prepared from notes dictated while a receiver of the property performed a complete walkthrough of vacant units in an apartment complex and since the purpose of the document was to remind the receiver of what the receiver observed in each unit. Great W. Bank v. Davis, 203 Ga. App. 473, 416 S.E.2d 899 (1992) (decided under former O.C.G.A. § 24-3-14).

Trial court properly refused to admit into evidence unauthenticated handwritten bid allegedly taken over the telephone by a secretary no longer employed by defendant contractor. Bishop Contracting Co. v. North Ga. Equip. Co., 203 Ga. App. 655, 417 S.E.2d 400, cert. denied, 203 Ga. App. 905, 417 S.E.2d 400 (1992) (decided under former O.C.G.A. § 24-3-14).

Handwritten note of deceased payee of promissory notes, as to loans to and payments from the signatory of the notes, was admissible. Harrison v. Martin, 213 Ga. App. 337, 444 S.E.2d 618 (1994) (decided under former O.C.G.A. § 24-3-14).

- To construe Ga. L. 1952, p. 177, § 1 et seq. to permit the admission in evidence of a letter in which is contained the diagnosis of a party's condition by a witness who has not been qualified as an expert, and a memorandum opinion not signed by any person but simply enclosed in the letter, when the party whose interest the letter and memorandum opinion are offered is not afforded the opportunity to examine either the author of the letter or the maker of the memorandum would in effect repeal former Code 1933, § 38-1705 (see now O.C.G.A. § 24-6-611), relating to the right of cross-examination, and ignore opinions of the Supreme Court and of this court. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 99 S.E.2d 370 (1957). For comment, see 20 Ga. B.J. 381 (1958) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Letters frequently would not qualify as letters are usually written for the purpose of communicating rather than recording information. American San. Servs., Inc. v. EDM of Tex., Inc., 139 Ga. App. 662, 229 S.E.2d 136 (1976) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Former statute did not automatically render admissible correspondence and all kinds of writings if made by one in connection with the operation of a business. American San. Servs., Inc. v. EDM of Tex., Inc., 139 Ga. App. 662, 229 S.E.2d 136 (1976) (decided under former O.C.G.A. § 24-3-14).

Claim letter required by the Department of Transportation as part of the department's contract with a contractor was admissible as original evidence and as a business record. DOT v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 489 S.E.2d 329 (1997) (decided under former O.C.G.A. § 24-3-14).

- Financial statement compiled from the records of the corporation is not itself a memorandum or record of any act, transaction, occurrence, or event but a compilation of figures furnished by someone else, and should not be admissible. Smith v. Smith, 224 Ga. 689, 164 S.E.2d 225 (1968) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Unaudited financial statements which had been prepared by independent accountants who were not present in court to authenticate the reports should not have been admitted into evidence as business records. DOT v. Fitzpatrick, 184 Ga. App. 249, 361 S.E.2d 241 (1987) (decided under former O.C.G.A. § 24-3-14).

Documents provided by subcontractors to plaintiff for purposes of billing and reimbursement qualified as business records of the plaintiff and testimony of plaintiff's president was appropriate to lay the foundation for their admittance. Wheat Enters., Inc. v. Redi-Floors, Inc., 231 Ga. App. 853, 501 S.E.2d 30 (1998) (decided under former O.C.G.A. § 24-3-14).

Credit card holder failed to prove that the statement, demonstrating the holder's debt, attached to the assignee's summary judgment motion affidavit was hearsay and should not have been considered by the trial court in the court's grant of summary judgment; the holder failed to contradict the assignee's claim, made in the assignee's affidavit, that the statement fell under the business records exception to the hearsay rule under former O.C.G.A. § 24-3-14. Bozeman v. CACV of Colo., LLC, 282 Ga. App. 256, 638 S.E.2d 387 (2006) (decided under former O.C.G.A. § 24-3-14).

When a plaintiff purchased advertising time from media providers on behalf of the defendant, invoices received from the media providers and kept by the plaintiff as part of the plaintiff's own records were business records of the plaintiff under former O.C.G.A. § 24-3-14(b), and testimony from the plaintiff's president could lay a foundation for their introduction into evidence. Walter R. Thomas Assocs. v. Media Dynamite, Inc., 284 Ga. App. 413, 643 S.E.2d 883 (2007) (decided under former O.C.G.A. § 24-3-14).

- Credit card company's summary judgment motion, supported by the sworn statement of the company's operation analyst, together with a credit card agreement and statements showing the amount due, which were admissible as business records pursuant to former O.C.G.A. § 24-3-14, was properly granted. A copy of the credit application was not required. Melman v. FIA Card Servs., N.A., 312 Ga. App. 270, 718 S.E.2d 107 (2011), cert. denied, No. S12C0411, 2012 Ga. LEXIS 215 (Ga. 2012) (decided under former O.C.G.A. § 24-3-14).

Trial court did not err by allowing into evidence as business records two spreadsheets regarding the alleged transactions supporting the defendant's convictions for theft by taking because the documents were created as part of the ordinary course of business and a proper foundation was laid for their admission. Raymond v. State, 322 Ga. App. 404, 745 S.E.2d 689 (2013)(decided under former O.C.G.A. § 24-3-14).

- In a prosecution for fraudulently obtaining public housing, computer printouts of defendant's wage records received by the county housing authority from the Department of Labor were admissible as business records. Robertson v. State, 210 Ga. App. 834, 437 S.E.2d 816 (1993) (decided under former O.C.G.A. § 24-3-14).

Timeline prepared by a Georgia Department of Children and Families case worker was not a business record as it was prepared for a termination of parental rights proceeding, was not prepared in the regular course of business, and was not prepared and maintained pursuant to a routine practice; however, the admission of the timeline was harmless error. In the Interest of C.M., 258 Ga. App. 387, 574 S.E.2d 433 (2002) (decided under former O.C.G.A. § 24-3-14).

- Absence of original daily time sheets did not render computer printouts inadmissible; this may have gone to their credit but not to their admissibility. Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

Computer printouts were clearly admissible under former O.C.G.A. § 24-3-14. WGNX, Inc. v. Gorham, 185 Ga. App. 489, 364 S.E.2d 621 (1988) (decided under former O.C.G.A. § 24-3-14).

- Because a limited liability company did not object to the admission of subcontractor agreement forms at trial on the ground that the forms did not fall within the business records exception to the hearsay rule, former O.C.G.A. § 24-3-14, an appellate court would not consider that argument on appeal. Forrest Cambridge Apts., LLC v. Redi-Floors, Inc., 295 Ga. App. 840, 673 S.E.2d 318 (2009) (decided under former O.C.G.A. § 24-3-14).

- Defendant's conviction for impersonating a law enforcement officer was affirmed and the trial court did not err by admitting into evidence a computer- generated record of the defendant's application to LeadsOnline because the trial court properly found that the application fell within the business records exception to the hearsay rule and had been properly authenticated as the defendant had actual notice before trial that the state intended to authenticate via a self-authentication declaration. Chase v. State, 337 Ga. App. 449, 787 S.E.2d 802 (2016).

- Operating record of an intoximeter operator who gave a test to a driver, subsequently accused of driving while intoxicated, was a writing in proof of an act or transaction and, thus, was admissible as direct evidence of the manner in which a scientific test was conducted and results thereby obtained. Munda v. State, 172 Ga. App. 857, 324 S.E.2d 799 (1984) (decided under former O.C.G.A. § 24-3-14).

- State's motion in limine to introduce a log sheet with handwritten intoxilyzer results was granted as the log sheet was admissible under the business records exception to the hearsay rule because the investigator averred that every officer at the county jail who performed intoxilyzer breath tests was required to record the officer's name, the name of the offender, the date of the test, the offender's driver's license number, the arresting officer's name, and the results of the two samples making up the test; thus, the log sheet was made at or near the time of the intoxilyzer tests, by a person with personal knowledge and a business duty to report the results, and kept in the course of the regularly conducted sheriff's office's activity. Jones v. State, 345 Ga. App. 14, 812 S.E.2d 337 (2018).

- Breath testing device certificates provided for in O.C.G.A. § 40-6-392(f) are records made within the regular course of business. Brown v. State, 268 Ga. 76, 485 S.E.2d 486 (1997) (decided under former O.C.G.A. § 24-3-14); Payne v. State, 232 Ga. App. 591, 502 S.E.2d 526 (1998); Jackson v. State, 233 Ga. App. 568, 504 S.E.2d 505 (1998) (decided under former O.C.G.A. § 24-3-14);(decided under former O.C.G.A. § 24-3-14).

Proper foundation for admitting an inspection certificate was provided through testimony of the trooper who actually tested the machine. Mealor v. State, 233 Ga. App. 193, 504 S.E.2d 29 (1998) (decided under former O.C.G.A. § 24-3-14).

"Self-authenticating" provision, O.C.G.A. § 40-6-392(f), contained the proper foundation for admission of a certificate of inspection, and a further foundation under the "business records" exception of subsection (b) of former O.C.G.A. § 24-3-14 was not necessary. Jackson v. State, 233 Ga. App. 568, 504 S.E.2d 505 (1998) (decided under former O.C.G.A. § 24-3-14).

Admission of self-authenticating certificates of inspection for the Intoxilyzer 5000 used to test defendant's breath was proper as the certificates were required by O.C.G.A. § 40-6-392(f), the certificates qualified as business records under former O.C.G.A. § 24-3-14, and the certificates did not violate defendant's confrontation rights under U.S. Const., amend. 6. Neal v. State, 281 Ga. App. 261, 635 S.E.2d 864 (2006) (decided under former O.C.G.A. § 24-3-14).

As certificates of inspection regarding an Intoxilyzer 5000 used in defendant's criminal matter were properly admitted pursuant to the business records exception to the hearsay rule under former O.C.G.A. §§ 24-3-14 and40-6-392(f), the trial court's refusal to give the limiting instruction regarding their use, as requested by defendant, was not reversible error. Neal v. State, 281 Ga. App. 261, 635 S.E.2d 864 (2006) (decided under former O.C.G.A. § 24-3-14).

Testing certificates for a breath-testing machine were properly admitted into evidence in a defendant's trial for driving under the influence (less safe and per se) under former O.C.G.A. § 24-3-14 and O.C.G.A. § 40-6-392(f). The documents did not come within the Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) standard. Ritter v. State, 306 Ga. App. 689, 703 S.E.2d 8 (2010) (decided under former O.C.G.A. § 24-3-14).

- An adequate foundation was laid for the admission of evidence of defendant's fingerprints since the trial record reflected that everybody arrested had a folder on them and the fingerprints were kept in the folder, the fingerprint card was a part of the record and was generally made at the time of a subject's arrest during the booking procedure, the name of the person who took the prints was on the card, and the card normally was maintained in the file jacket of the subject's arrest record at the sheriff's department. Davis v. State, 194 Ga. App. 902, 392 S.E.2d 327 (1990) (decided under former O.C.G.A. § 24-3-14).

Evidence established that the defendant's 1991 fingerprint card was made in the regular course of business when the card bore the defendant's full name, date of birth, description, and signature and when the officer who conducted the fingerprinting and signed the card testified that the officer would have obtained the information on the card from written identification. The defendant's assertion that the prints on the 1991 card could be those of someone else purporting to be the defendant and using the defendant's identification at the time the prints were obtained amounted to mere speculation, and the state was under no obligation to re-fingerprint the defendant. Hurst v. State, 285 Ga. 294, 676 S.E.2d 165 (2009) (decided under former O.C.G.A. § 24-3-14).

Trial court did not err in allowing the testimony of the state's fingerprint expert, an employee of the Georgia Bureau of Investigation (GBI), who identified the victim based on the victim's comparison of a post-mortem fingerprint card belonging to the victim and a fingerprint card bearing the victim's known fingerprints because a proper foundation was laid, and the fingerprints cards were properly admitted in evidence as business records under former O.C.G.A. § 24-3-14; the expert testified that the expert was familiar with GBI's methods of recordkeeping, that the GBI maintained post-mortem fingerprint cards in the regular course of business, and that the fingerprint cards were made contemporaneously with autopsies of dead persons conducted at the morgue. Rowe v. State, 302 Ga. App. 239, 690 S.E.2d 884 (2010) (decided under former O.C.G.A. § 24-3-14).

Trial court did not abuse the court's discretion in requiring the defendant's counsel to specify the missing steps of a business record exception after defense counsel objected to the state's introduction in evidence of the defendant's fingerprint cards because even assuming that the trial court erred, the fingerprint cards were not the sole evidence linking the defendant to the crimes; an investigator testified that the investigator made a visual comparison of the defendant's fingerprints and concluded that two latent prints taken from the scene belonged to the defendant, and the investigator also testified that the results of a computer analysis identified a known print of the defendant's as the closest of ten matches to the latent print. Mallory v. State, 306 Ga. App. 684, 703 S.E.2d 120 (2010) (decided under former O.C.G.A. § 24-3-14).

- Narratives contained in police reports generated in connection with police investigations are not the appropriate subject of the business records exception to the hearsay rule. To the extent that any case holds that a police report narrative is admissible as a business record, those cases are overruled. Brown v. State, 274 Ga. 31, 549 S.E.2d 107 (2001) (decided under former O.C.G.A. § 24-3-14).

Because a form document, entitled the "Henry County Police Department Roadblock & Safety Checkpoint Record," introduced at a motion to suppress hearing by the state was properly admitted as a business record under former O.C.G.A. § 24-3-14, and the testimonial evidence regarding the primary purpose of the roadblock passed constitutional muster, in that it was legitimately conducted as part of a statewide "zero tolerance" campaign, the defendant's motion to suppress the evidence seized as a result was properly denied. Yingst v. State, 287 Ga. App. 43, 650 S.E.2d 746 (2007) (decided under former O.C.G.A. § 24-3-14).

Even if the trial court in a nuisance and trespass case erred in admitting narrative portions of a police officer's reports as business records, the error was harmless because the officer was available for cross-examination and because the reports were cumulative of the officer's testimony. Stanfield v. Waste Mgmt. of Ga., Inc., 287 Ga. App. 810, 652 S.E.2d 815 (2007), cert. denied, No. S08C0317, 2008 Ga. LEXIS 228 (Ga. 2008); overruled on other grounds by Toyo Tire N. Am. Mfg. v. Davis, 2016 Ga. LEXIS 402 (Ga. 2016) (decided under former O.C.G.A. § 24-3-14).

There is no error in the admission of a police report showing that the defendant had a large amount of change in the defendant's possession when the defendant was apprehended inside a store. Johnson v. State, 168 Ga. App. 271, 308 S.E.2d 681 (1983) (decided under former O.C.G.A. § 24-3-14).

- When an undercover officer who purchased marijuana from defendant testified regarding the purchase, opined that the substance was marijuana, and also identified the receipt for property and testified that the official filled out the receipt in the normal course of business, the receipt for property was clearly identified as a business record and was properly admitted as such over defendant's hearsay objection. Green v. State, 165 Ga. App. 702, 302 S.E.2d 604 (1983) (decided under former O.C.G.A. § 24-3-14).

Police officer's letter containing compilation of figures furnished by another showing the number of accidents involving left-turning vehicles at an intersection over a three-year period was not admissible as a business record. Loper v. Drury, 211 Ga. App. 478, 440 S.E.2d 32 (1994) (decided under former O.C.G.A. § 24-3-14).

With regard to proof of transmittal of contraband to state crime lab by certified mail, the state could only produce a photostatic copy of the certification receipt in lieu of the original and the defendant urged that, without an adequate explanation for the absence of the original certified mail receipt as required by former O.C.G.A. § 24-5-4 (see now O.C.G.A. § 24-10-1002), the chain of custody was not sufficiently proven, but a deputy sheriff testified that the deputy would always make a copy of the certified mail receipt when the deputy mailed contraband to the state crime lab, but had been unable to locate the original receipt for this particular mailing, and identified the deputy's handwriting on the photostatic copy and noted that the certification number was identical to that on the state crime lab report, the trial court was authorized to conclude that the copy of the receipt had been made in the regular course of business so as to be admissible pursuant to former O.C.G.A. §§ 24-3-14 and24-5-26 (see now O.C.G.A. §§ 24-8-803 and24-10-1003). Spead v. State, 187 Ga. App. 359, 370 S.E.2d 213 (1988) (decided under former O.C.G.A. § 24-3-14).

-9-1-1 recording was admissible as a business record as it was made by the county9-1-1 center and accompanied in the record by a written declaration certifying it met the requirements for admissibility and, thus, trial counsel was not ineffective for failing to challenge the recording's admission. Gregory v. State, 342 Ga. App. 411, 803 S.E.2d 367 (2017), cert. denied, 2018 Ga. LEXIS 186 (Ga. 2018), cert. denied, 139 S. Ct. 180, 2018 U.S. LEXIS 5563, 202 L. Ed. 2d 110 (U.S. 2018).

- Department of public safety roadblock approval form was subject to admission as a business record because the form contained only routine facts whose accuracy was not affected by bias, judgment, and memory; the form was created for the administration of the State Patrol's affairs as it was prepared in every case of a road block, presumably for recordkeeping purposes. Hite v. State, 315 Ga. App. 221, 726 S.E.2d 704 (2012), cert. denied, No. S12C1286, 2012 Ga. LEXIS 1020 (Ga. 2012) (decided under former O.C.G.A. § 24-3-14).

4. Foundation for Admission

Business records admissible to prove crime.

- Defendant's conviction for theft by taking in violation of O.C.G.A. § 16-8-2 was proper under former O.C.G.A. § 24-3-14 because the business records exception did not require that the person laying the foundation for the admission of business records be the custodian of the records. Instead, the former statute required only that the record offered to prove an act or transaction be made in the regular course of business and that it was the regular course of business to make the record at the time of the act or transaction; the witness's lack of personal knowledge regarding how the records were created did not render the records inadmissible, but merely affected the weight given to the evidence. Loyal v. State, 300 Ga. App. 65, 684 S.E.2d 124 (2009) (decided under former O.C.G.A. § 24-3-14).

- Trial court did not abuse the court's discretion in allowing an officer to testify that the defendant was given written notice that a condition of probation prohibited the defendant from possessing a firearm as the firearms acknowledgement was admissible under the business records exception to the hearsay rule. Beavers v. State, 346 Ga. App. 373, 816 S.E.2d 384 (2018).

- Pawn ticket constitutes a contemporaneous record of a transaction made in the regular course of business pursuant to regular business practices, and thus is admissible as evidence of the transaction under former O.C.G.A. § 24-3-14. Baxter v. State, 254 Ga. 538, 331 S.E.2d 561, cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 275 (1985); 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991) (decided under former O.C.G.A. § 24-3-14).

- Even if a proper foundation was laid to introduce a laboratory report as a business record, it was still not admissible as a whole if the report contained the opinions or conclusion of a third party not before the court. Department of Human Resources v. Corbin, 202 Ga. App. 10, 413 S.E.2d 484 (1991), cert. denied, 202 Ga. App. 905, 413 S.E.2d 484 (1992) (decided under former O.C.G.A. § 24-3-14).

Trial court did not err by refusing to admit medical records of non-testifying physicians who had treated plaintiff because defendant failed to lay a proper foundation. Hodson v. Mawson, 227 Ga. App. 490, 489 S.E.2d 855 (1997) (decided under former O.C.G.A. § 24-3-14).

Records which contain diagnostic opinions of third parties not before the court are not admissible under the business records exception to the hearsay rule. Baker v. State, 251 Ga. 464, 306 S.E.2d 917 (1983) (decided under former O.C.G.A. § 24-3-14).

- In a suit between a manufacturer and a purchaser, the testimony of one of the purchaser's customers was properly excluded as hearsay because the testimony did not contain the type of routine facts whose accuracy was not affected by bias, judgment, and memory, as contemplated for the admission of business records under former O.C.G.A. § 24-3-14(b). Pendley Quality Trailer Supply, Inc. v. B&F Plastics, Inc., 260 Ga. App. 125, 578 S.E.2d 915 (2003) (decided under former O.C.G.A. § 24-3-14).

- Medical records regarding plaintiff's injuries and treatment were not admissible in the absence of testimony satisfying foundational requirements. Buford v. Benton, 232 Ga. App. 102, 501 S.E.2d 272 (1998) (decided under former O.C.G.A. § 24-3-14).

- When the doctor who treated plaintiff-driver in the hospital emergency room following the accident detected what the doctor thought was the odor of alcohol about the plaintiff-driver and, without a request or direction by the officer, ordered a blood-alcohol test to be performed upon the plaintiff-driver in order to determine the type of anesthesia to use on plaintiff-driver, the blood-alcohol test results were admissible under former O.C.G.A. § 24-3-14 as part of a hospital record made in the regular course of hospital business, and thus, compliance with O.C.G.A. § 40-6-392(a)(2) and (3) was not a prerequisite to the admission of the blood test results. Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 278 S.E.2d 669, cert. denied, 248 Ga. 254, 285 S.E.2d 186 (1981) (decided under former O.C.G.A. § 24-3-14).

Trial court properly admitted, at defendant's trial for vehicular homicide, the results of a blood test performed by a hospital, since the test was administered for the purpose of assisting in defendant's medical treatment, was requested by the treating physician and not by a law enforcement officer, and was not obtained for the purpose of showing that defendant was in violation of the driving-under-the-influence statute. Jackson v. State, 196 Ga. App. 724, 397 S.E.2d 13 (1990) (decided under former O.C.G.A. § 24-3-14).

- There was adequate foundation to admit printouts of test results of defendant's breath test as business records under subsection (b) of former O.C.G.A. § 24-3-14, in that it was in the regular course of the trooper's business to perform such a test, and these printouts were the result of one of those tests conducted in the regular course of the trooper's duties; consequently, there was no violation of defendant's right of confrontation. Sisson v. State, 232 Ga. App. 61, 499 S.E.2d 422 (1998), recons. denied; overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-3-14).

- Hospital record showing blood test results was properly admitted as a business records exception to the hearsay rule. Dixon v. State, 227 Ga. App. 533, 489 S.E.2d 532 (1997) (decided under former O.C.G.A. § 24-3-14).

- Videotape of arthroscopic surgical procedure performed on plaintiff's shoulder was admissible as a business record since the doctor was available for cross-examination. Freeland v. Baker, 205 Ga. App. 470, 422 S.E.2d 315 (1992) (decided under former O.C.G.A. § 24-3-14).

- When a witness's testimony concerning the amount of alleged indebtedness under a lease is derived not from an examination of any books of account or other records prepared in the ordinary course of business, but rather from a summary prepared in support of a demand for payment, this summary is not a "business record" within the meaning of former O.C.G.A. § 24-3-14. Gateway Leasing Corp. v. Heath, 168 Ga. App. 858, 310 S.E.2d 549 (1983) (decided under former O.C.G.A. § 24-3-14).

Tax assessments did not fall under the business record exception to hearsay. Sheppard v. Sheppard, 229 Ga. App. 494, 494 S.E.2d 240 (1997) (decided under former O.C.G.A. § 24-3-14).

List of promissory notes, not made according to regular business procedure, which was offered in evidence to support the witness's contention that such notes existed and to alert the jury of the amount of the notes, was improperly admitted under the business records exception. Growth Properties of Fla., Ltd. v. Wallace, 168 Ga. App. 893, 310 S.E.2d 715 (1983) (decided under former O.C.G.A. § 24-3-14).

- Officer's testimony about the search of the Clayton County, Georgia, database was admissible to prove the absence of a public record or entry under O.C.G.A. § 24-8-803(10) because the officer testified that the officer helped to maintain the records of crimes that occurred in Clayton County and that the officer regularly accessed the database to get information about victims and defendants used in the search. Tran v. State, 340 Ga. App. 546, 798 S.E.2d 71 (2017).

Bulldozer operator's worksheets prepared in anticipation of litigation were not admissible as evidence since the operator had not kept a contemporaneous record of the operator's hours or expenses. Goss v. Mathis, 188 Ga. App. 702, 373 S.E.2d 807, cert. denied, 188 Ga. App. 911, 373 S.E.2d 807 (1988) (decided under former O.C.G.A. § 24-3-14).

Automobile repair estimates were not admissible in a personal injury action arising out of an automobile collision. Moore v. Graham, 221 Ga. App. 616, 472 S.E.2d 152 (1996) (decided under former O.C.G.A. § 24-3-14).

- Proof of attorney fees did not require the testimony of the attorneys or paralegals who performed the work; sufficient evidence was presented by a witness who introduced billing statements that were admissible as business records. Santora v. American Combustion, Inc., 225 Ga. App. 771, 485 S.E.2d 34 (1997) (decided under former O.C.G.A. § 24-3-14).

- Minutes of a meeting of church members were not admissible as business records in the absence of a statement that it was the regular course of business to create the minutes. White Missionary Baptist Church v. Trustees of First Baptist Church, 268 Ga. 668, 492 S.E.2d 661 (1997) (decided under former O.C.G.A. § 24-3-14).

- There was no evidence that skill of observation or judgment was a significant factor affecting the reliability of fiber counts performed for the former employer by an independent laboratory, or that the accuracy of the counts was affected by bias, so the trial court did not err by admitting the fiber counts under the business records exception to the hearsay rule. Stewart v. CSX Transp., Inc., 268 Ga. App. 434, 602 S.E.2d 665 (2004) (decided under former O.C.G.A. § 24-3-14).

- An affidavit supported by a creditor in support of the creditor's motion for summary judgment satisfied the business records exception when the affiant, a "recovery specialist," stated that the affiant was familiar with the creditor's books and records, that the books and records were kept in the ordinary course of business, that it was the ordinary course of business to keep such books and records, that the entries on the books and records concerning the debtor were posted at or about the time of the transaction, and that the documents named in the affidavit and identifiable in the record showed the terms of the contract between the parties and provided the financial history of the debtor's personal credit line account. Gerben v. Beneficial Ga., Inc., 283 Ga. App. 740, 642 S.E.2d 405 (2007) (decided under former O.C.G.A. § 24-3-14).

- As preprinted form documents contained very specific information concerning goods purchased, and bore signatures on behalf of the buyer and the seller, the trial court was authorized to find sufficient circumstantial evidence of authentication to admit the documents as business records. Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 679 S.E.2d 57 (2009) (decided under former O.C.G.A. § 24-3-14).

- In a suit against a carrier by a shipper's insurer under 49 U.S.C. § 14706 of the Interstate Commerce Act, the shipper's "sales acknowledgment" business records were admissible to show the sale of the goods to a third party, but were not sufficient to establish the necessary element of proof that the goods were delivered to the carrier in good condition. Transp. Solutions, Inc. v. St. Paul Mercury Ins. Co., 297 Ga. App. 757, 678 S.E.2d 201 (2009) (decided under former O.C.G.A. § 24-3-14).

- Chapter 7 debtor's objections to three proofs of claim held by a creditor who was the fourth assignee of each of the debts were sustained as the creditor failed to establish any links in the chain of assignment as required under Georgia law and failed to lay a proper foundation for documents used as required by the Business Records Act, former O.C.G.A. § 24-3-14. An affidavit of sale from an authorized representative of one of the assignors was deficient because the affiant's testimony was not based on personal knowledge and because the only business record introduced was a contract assigning unidentified accounts; there were no documents identifying the account holder, the account number, and the account balance. In re Stephens, 443 Bankr. 225 (Bankr. M.D. Ga. 2010) (decided under former O.C.G.A. § 24-3-14).

§ 24-3-14 in the following cases. - See Haygood v. Smith, 80 Ga. App. 461, 56 S.E.2d 310 (1949) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Guthrie v. Berrien Prods. Co., 91 Ga. App. 45, 84 S.E.2d 596 (1954); Crooke v. Elliott, 96 Ga. App. 314, 99 S.E.2d 842 (1957) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Home Fin Co. v. Smith, 116 Ga. App. 76, 156 S.E.2d 522 (1967); Calhoun v. Chappell, 117 Ga. App. 865, 162 S.E.2d 300 (1968) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Huff v. State, 141 Ga. App. 66, 232 S.E.2d 403 (1977); Tucker v. Whitehead, 155 Ga. App. 104, 270 S.E.2d 317 (1980) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980); Anderson v. Chatham, 190 Ga. App. 559, 379 S.E.2d 793 (1989) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3); Johnson v. State, 266 Ga. 775, 470 S.E.2d 637 (1996); Tolver v. State, 269 Ga. 530, 500 S.E.2d 563 (1998) (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under Ga. L. 1952, p. 177, §§ 1, 2, 3);(decided under former O.C.G.A. § 24-3-14);(decided under former O.C.G.A. § 24-3-14);(decided under former O.C.G.A. § 24-3-14).

Recorded Recollections

1. In General

Obvious purpose of the former statute was to allow proper and legitimate aid to a witness which would enable the witness to testify fully as to the witness's knowledge. Whitaker v. State, 199 Ga. 344, 34 S.E.2d 499 (1945) (decided under former Code 1933, § 38-1707).

Illegal evidence must not be allowed to reach the jury on the pretense that the evidence was offered in compliance with the former statute. Whitaker v. State, 199 Ga. 344, 34 S.E.2d 499 (1945) (decided under former Code 1933, § 38-1707); Hull v. State, 265 Ga. 757, 462 S.E.2d 596 (1995);(decided under former O.C.G.A. § 24-9-69).

- For discussion of the distinction between cases where the witness finally testifies to a "past" recollection, and where the witness finally testifies to a "present" recollection, see Stansall v. Columbian Nat'l Life Ins. Co., 32 Ga. App. 87, 122 S.E. 733, cert. denied, 32 Ga. App. 807 (1924) (decided under former Civil Code 1910, § 5878).

- Witness may, for the purpose of refreshing the witness's recollection, use any memoranda useful for that purpose; and the witness's testimony will not be objectionable if it is not dependent upon the memoranda, but is based upon the memory of the witness, even though the memoranda may be necessary in order to refresh the witness's recollection. Southern Ry. v. Cowan, 52 Ga. App. 360, 183 S.E. 331 (1936) (decided under former Code 1933, § 38-1707).

- Witness may testify from the witness's memory refreshed by a writing that the witness made, though the witness has no independent memory of the writing's contents. Bridges v. Mutual Benefit Health & Accident Ass'n, 49 Ga. App. 552, 176 S.E. 543 (1934) (decided under former Code 1933, § 38-1707); Steinmetz v. Chambley, 90 Ga. App. 519, 83 S.E.2d 318 (1954); Woodward v. City Council, 117 Ga. App. 857, 162 S.E.2d 304 (1968) (decided under former Code 1933, § 38-1707); State Hwy. Dep't v. Godfrey, 118 Ga. App. 560, 164 S.E.2d 340 (1968); Marby v. Henley, 123 Ga. App. 561, 181 S.E.2d 884 (1971) (decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707).

- Rule relates as to the admissibility of testimony, and not a rule for the determination of the testimony's probative value. Scott v. Gidelight Mfg. Co., 37 Ga. App. 240, 139 S.E. 686 (1927) (decided under former Civil Code 1910, § 5873); Kines v. State, 67 Ga. App. 314, 20 S.E.2d 89 (1942);(decided under former Code 1933, § 38-1707).

- Witness may not only read the witness's own deposition but it may be read to the witness in the presence and hearing of the jury to refresh the witness's memory. Burney v. Ball, 24 Ga. 505 (1858) (decided under former law).

- When only part of the memorandum was admitted in evidence at the instance of the party who offered the witness, over objection urged by the opposite party that it was inadmissible, the putting in evidence later by the opposite party of the remainder of the memorandum amounted to a waiver of the party's objection. Scott v. Gidelight Mfg. Co., 37 Ga. App. 240, 139 S.E. 686 (1927) (decided under former Civil Code 1910, § 5873).

- Though the trial court erred in permitting the plaintiff's counsel to examine the notes used by the defendant's witness to refresh the witness's memory, the defendant failed to show how this error prejudiced the defense, therefore, the error was harmless. Seaboard Coastline R.R. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), overruled on other grounds, CSX Transp. v. Williams, 230 Ga. App. 573, 497 S.E.2d 66 (1998) (decided under former O.C.G.A. § 24-9-69).

- While it was true that under former O.C.G.A. § 24-9-69, a witness whose memory was refreshed with a document had to continue their testimony on the basis of recollection alone, when such was not the basis of the defendant's objection at trial, the claim was not preserved for review. Hunter v. State, 282 Ga. App. 355, 638 S.E.2d 804 (2006) (decided under former O.C.G.A. § 24-9-69).

2. Written Instrument or Memorandum

Either personal preparation or knowledge that facts true.

- In order to testify positively from paper itself, the witness must either have made the paper personally, or, at some time when facts were fresh in the witness's memory, the witness must have known the facts stated in the paper to be correct. Bradshaw v. State, 162 Ga. App. 750, 293 S.E.2d 360 (1982) (decided under former O.C.G.A. § 24-9-69).

After a defendant was charged with DUI, the trial court did not err in allowing one of the police witnesses to refresh the witness's recollection from a written document without any showing that the witness had prepared the document personally; so long as a witness is testifying from personal recollection, the witness is entitled to have the witness's memory refreshed by a document which the witness personally did not prepare. Ussery v. State, 195 Ga. App. 394, 393 S.E.2d 522 (1990) (decided under former O.C.G.A. § 24-9-69).

- When a witness testifies from the witness's recollection refreshed as provided by statute, the paper itself, where not otherwise binding upon the party against whom the witness testifies, is without probative value and is not admissible as documentary evidence for any purpose. Stansall v. Columbian Nat'l Life Ins. Co., 32 Ga. App. 87, 122 S.E. 733, cert. denied, 32 Ga. App. 807 (1924) (decided under former Civil Code 1910, § 5873).

Excluding such memoranda as are admissible as business records or as part of the res gestae, it is generally held that the memorandum has no present evidentiary value, since it is not the memorandum that is the evidence, but the recollection of the witness. An exception is when the opposite side wished to introduce the memorandum in order to weaken the effect of the testimony. Woodward v. City Council, 117 Ga. App. 857, 162 S.E.2d 304 (1968) (decided under former Code 1933, § 38-1707); State Hwy. Dep't v. Godfrey, 118 Ga. App. 560, 164 S.E.2d 340 (1968); Mason v. State, 147 Ga. App. 179, 248 S.E.2d 302 (1978) (decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707).

- If the writing, instrument, document, or other thing from which the witness refreshes the witness's recollection was made in the witness's presence or at the witness's direction and if the witness knows that it contains true and correct information and is willing to swear positively to that effect, it is immaterial that the witness did not personally make the thing from which the witness testified. Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959), for comment, see 22 Ga. B.J. 380 (1960) (decided under former Code 1933, § 38-1707).

Although a witness may refresh the witness's memory from a writing prepared by another, the witness must nevertheless testify from the witness's memory thus refreshed. When the document is prepared by a third person not in the presence of a witness, the memory is not refreshed by such memorandum and such testimony is inadmissible. Zilinmon v. State, 234 Ga. 535, 216 S.E.2d 830 (1975), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006) (decided under former Code 1933, § 38-1707).

In view of a prosecution witness's averment that the witness was testifying from the witness's refreshed memory, the trial court did not err in permitting the witness to testify to the tag number on defendant's truck, even though the witness refreshed the witness's memory by viewing a computer printout bearing the tag number; since the witness was entitled to have the witness's memory refreshed by a document which the witness personally did not prepare. Byrd v. State, 182 Ga. App. 284, 355 S.E.2d 666 (1987) (decided under former O.C.G.A. § 24-9-69).

Trial court correctly allowed a testifying police officer to refresh the officer's memory of the incident using a report written by someone else; former O.C.G.A. § 24-9-69, permitted a witness to refresh and assist the witness's memory by the use of any written instrument or memorandum. Penland v. State, 258 Ga. App. 659, 574 S.E.2d 880 (2002) (decided under former O.C.G.A. § 24-9-69).

Witness at some time must have had personal knowledge of the memorandum's correctness. Davis v. State, 91 Ga. 167, 17 S.E. 292 (1893) (decided under former Code 1882, § 3866); Hematite Mining Co. v. East Tenn., Va. & Ga. Ry., 92 Ga. 268, 18 S.E. 24 (1893); Jones v. State, 99 Ga. 46, 25 S.E. 617 (1896) (decided under former Code 1882, § 3866); Lenney v. Finley, 118 Ga. 427, 45 S.E. 317 (1903); Shrouder v. State, 121 Ga. 615, 49 S.E. 702 (1905) (decided under former Penal Code 1895, § 1020); Smith v. City of Atlanta, 22 Ga. App. 511, 96 S.E. 334 (1918); Stansall v. Columbian Nat'l Life Ins. Co., 32 Ga. App. 87, 122 S.E. 733 (decided under former Civil Code 1895, § 5284); 32 Ga. App. 807 (1924); Herring v. State, 122 Ga. App. 730, 178 S.E.2d 551 (1970) (decided under former Penal Code 1895, § 1020); Morris v. State, 228 Ga. 39, 184 S.E.2d 82 (1971); 405 U.S. 1050, 92 S. Ct. 1511, 31 L. Ed. 2d 786 (1972) (decided under former Civil Code 1910, § 5873); Moore v. State, 240 Ga. 807, 243 S.E.2d 1; 439 U.S. 903, 99 S. Ct. 268, 58 L. Ed. 2d 249 (1978), cert. denied,(decided under former Civil Code 1910, § 5873);(decided under former Code 1933, § 38-1707);cert. denied,(decided under former Code 1933, § 38-1707);cert. denied,(decided under former Code 1933, § 38-1707).

- In a proceeding to terminate the parental rights of a parent who had been convicted of molesting the parent's children, the trial court did not err in allowing a probation official to use a confidential presentence investigation report to refresh the official's recollection about interviews the official had with the parent. In re S.M.L., 228 Ga. App. 81, 491 S.E.2d 186 (1997) (decided under former O.C.G.A. § 24-9-69).

It was not improper for an officer to use a police report to refresh the officer's recollection about a prior driving under the influence incident involving the defendant. Becker v. State, 280 Ga. App. 97, 633 S.E.2d 436 (2006) (decided under former O.C.G.A. § 24-9-69).

- Investigating officer's report can be used to refresh another witness's recollection. Brown v. State, 247 Ga. App. 741, 545 S.E.2d 114 (2001) (decided under former O.C.G.A. § 24-9-69).

- Although it is preferable to ask a witness specifically at trial whether the witness had told the truth as the witness then perceived it when the witness gave the witness's oral statement and whether a transcript thereof constituted an accurate recording in toto of what the witness had personally stated, since an adequate foundation was established, the transcribed statement may qualify as past recollection recorded under former O.C.G.A. § 24-9-69. Platt v. National Gen. Ins. Co., 205 Ga. App. 705, 423 S.E.2d 387, cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992) (decided under former O.C.G.A. § 24-9-69).

Statement was inadmissible as a past recollection recorded or under the medical diagnosis exception to the hearsay rule because after reviewing the typed statement, the social worker testified that the worker's memory was not refreshed and the worker was unwilling to swear that the statement accurately reflected the interview as required under former O.C.G.A. § 24-9-69. Sandlin v. State, 273 Ga. 440, 542 S.E.2d 496 (2001) (decided under former O.C.G.A. § 24-9-69).

- Transcript of statement by witness which was admissible as past recollection recorded should not have been allowed to go out with the jury during deliberation. Platt v. National Gen. Ins. Co., 205 Ga. App. 705, 423 S.E.2d 387, cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992) (decided under former O.C.G.A. § 24-9-69).

- Cross-examiner should and does possess the right to quiz the witness concerning the contents of the written instrument without introduction of the document. In doing so the witness is entitled to shed light on the relevant issues whether this be favorable or unfavorable to the client's cause. Lester v. S.J. Alexander, Inc., 127 Ga. App. 470, 193 S.E.2d 860 (1972) (decided under former Code 1933, § 38-1707).

- In a medical malpractice case, because the Katz Committee Findings was used to unfairly impeach the plaintiff's expert witness as to the core issue of the standard of care, and because the sanctioning of a different anesthesiologist by the American Society of Anesthesiologists (ASA) for violating ASA expert-witness guidelines was conflated with standard-of-care issues reserved for the jury, the admission of that evidence was not harmless, was in fact prejudicial, and the plaintiff was entitled to a new trial. Moore v. WellStar Health System, Inc., 349 Ga. App. 834, 824 S.E.2d 787 (2019).

In a medical malpractice case, there was no basis to find that the Katz Committee Findings fell within the scope of the learned treatise exception as that exception did not expressly reference that type of document, which was written by the American Society of Anesthesiologists (ASA) about its own disciplinary proceedings against a different anesthesiologist, not involved in the current case, for a violation of specific ASA guidelines. Moore v. WellStar Health System, Inc., 349 Ga. App. 834, 824 S.E.2d 787 (2019).

- Trial court does not err in refusing to allow defense counsel to examine all a police officer's notes in the officer's file, although defense counsel is allowed to cross-examine the officer with reference to the notes used to refresh the officer's recollection. Sprague v. State, 147 Ga. App. 347, 248 S.E.2d 711 (1978) (decided under former Code 1933, § 38-1707). Ellison v. Robinson, 96 Ga. App. 882, 101 S.E.2d 902 (1958) See also (decided under former Code 1933, § 38-1707).

- Witness may not refresh witness's memory from testimony given at the trial of another defendant under the same indictment. Brown v. State, 28 Ga. 199 (1859) (decided under former law).

3. Illustrations

Recollection refreshed.

- Testimony was admissible in the following cases, when a witness's recollection was refreshed by a memorandum: Veal v. Wood, 29 Ga. App. 94, 113 S.E. 818 (1922) (decided under former Civil Code 1910, § 5873); Lazar v. Black & White Cab Co., 50 Ga. App. 567, 179 S.E. 250 (1935);(decided under former Code 1933, § 38-1707).

Since the doctor was present when the plaintiff was brought into the hospital immediately after plaintiff's injury, was present when X-ray pictures were taken and developed, examined the x-rays immediately thereafter and ascertained therefrom that the nature of the plaintiff's injury was such that it was necessary to refer the plaintiff to an orthopedic surgeon, the refusal of the court to allow the witness to refresh the witness's memory under the circumstances shown was probably harmful error and required a reversal of the case. Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959), for comment, see 22 Ga. B. J. 380 (1960) (decided under former Code 1933, § 38-1707).

Trial court did not improperly allow a prosecutor to refresh a victim's recollection with a letter the victim wrote to the district attorney's office expressing fear of the defendant as: (1) the defense counsel asked to see the letter before the prosecutor handed the letter to the victim; (2) the prosecutor granted that request; (3) after previewing the letter, the defense counsel did not object to the victim using the letter to refresh the victim's memory; and (4) the letter was neither admitted into evidence nor read to the jury. Haggins v. State, 277 Ga. App. 742, 627 S.E.2d 448 (2006) (decided under former O.C.G.A. § 24-9-69).

Detective's use of a photograph to refresh that detective's recollection as to which of the codefendants was the defendant on trial went to the weight of the detective's testimony, but did not require that the identification of the defendant on trial be excluded due to a substantial likelihood of irreparable misidentification. Ford v. State, 285 Ga. App. 106, 645 S.E.2d 590 (2007) (decided under former O.C.G.A. § 24-9-69).

Trial court did not err in allowing an attorney to read a letter memorializing a conversation between the attorney and a decedent because a proper foundation was laid for the attorney to read the letter to the jury as a past recollection recorded when the attorney testified that the attorney personally prepared the letter and that the conversation concerning the scope of a receipt that was recounted in the letter occurred no more than three days before the letter was prepared; although the attorney could not presently recall being told by the decedent that the release from indebtedness contained in the receipt was intended to be limited in scope, the attorney testified that based on the wording of the letter the attorney believed that such a conversation with the decedent and the executor's two siblings had taken place, and that testimony established that the attorney memorialized the conversation in the letter when it was fresh in the attorney's mind and that the attorney believed that the letter was true and accurate when written. Jerkins v. Jerkins, 300 Ga. App. 703, 686 S.E.2d 324 (2009) (decided under former O.C.G.A. § 24-9-69).

Victim's statements that the victim was the person in the video, remembered giving a statement, had knowledge as to what the victim was talking about, told the truth when giving the statement, and things were fresh in the victim's mind when giving the statement were sufficient to establish that the videotaped statement concerned a matter about which the victim had knowledge but at trial had insufficient recollection. Pierce v. State, 302 Ga. 389, 807 S.E.2d 425 (2017).

- Testimony was admissible in the following cases when witness swore positively from the paper that the facts contained therein were correct: Williams v. C. & G.H. Kelsey & Halsted, 6 Ga. 365 (1849) (decided under former law); Black v. Thornton, 30 Ga. 361 (1860); Schmidt v. Wambacker & Weil, 62 Ga. 321 (1879) (decided under former law); Scott v. Gidelight Mfg. Co., 37 Ga. App. 240, 139 S.E. 686 (1927); Clackum v. State, 55 Ga. App. 44, 189 S.E. 397 (1936) (decided under former Code 1873, § 3866); Elliott v. Georgia Power Co., 58 Ga. App. 151, 197 S.E. 914 (1938); Brown-Rogers-Dixon Co. v. Southern Ry., 79 Ga. App. 449, 53 S.E.2d 702 (1949) (decided under former Civil Code 1910, § 5873); Haskins v. Carson, 115 Ga. App. 336, 154 S.E.2d 626 (1967);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707).

Before a witness may swear positively from a paper it is not necessary that the witness show a present recollection of the contents of the document. Mincey v. State, 257 Ga. 500, 360 S.E.2d 578 (1987) (decided under former O.C.G.A. § 24-9-69).

- Trial court properly permitted an arresting officer to read that portion of the form containing the Miranda warnings which the witness had administered to the defendant for the sole purpose of rebutting the defendant's contention that the defendant had not been advised of the defendant's Miranda rights. Adams v. State, 260 Ga. 298, 392 S.E.2d 866 (1990) (decided under former O.C.G.A. § 24-9-69).

- Witness could not, over objection, testify to the contents of a typewritten signed memorandum which purported to be a statement of the witness's account with the plaintiff when on cross-examination the witness admitted that the witness did not prepare the memorandum, that the witness did not know who did, that the witness received the memorandum through the mail, but the witness did not recall even the return address on the envelope, that the memorandum was not signed, and that the witness had no independent knowledge of the memorandum's contents or that the items had in fact been charged back to the witness's account. Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696, 193 S.E. 627 (1937) (decided under former Code 1933, § 38-1707).

- Trial court did not err by refusing to allow one of the prosecution witnesses (a police officer) to refresh the officer's recollection from a police report prepared by another officer since the officer testified that the officer had no such personal knowledge. Sweat v. State, 203 Ga. App. 290, 416 S.E.2d 845 (1992) (decided under former O.C.G.A. § 24-9-69).

- Refusal to allow the defendant to use an officer's report to refresh a witness's recollection was harmless error since the defendant's goal was to use the witness's refreshed recollection to impeach the witness in an impermissible manner - with a document created by one other than the witness and which the witness had not signed. Woods v. State, 269 Ga. 60, 495 S.E.2d 282 (1998) (decided under former O.C.G.A. § 24-9-69).

Pursuant to former O.C.G.A. § 24-9-69, a witness was allowed to refresh and assist the witness's memory by the use of any written instrument or memorandum; trial counsel's failure to object to the refreshing of a witness's recollection was not ineffective assistance of counsel. Usher v. State, 258 Ga. App. 459, 574 S.E.2d 580 (2002) (decided under former O.C.G.A. § 24-9-69).

- Trial court's refusal in a suppression hearing to allow a police officer to refresh the officer's recollection about the contents of a be on the lookout police dispatch was harmless error because, given the other evidence that was presented, it did not contribute either to the court's decision on the suppression motion or to the court's adjudication of a juvenile as delinquent. In re H.A., 308 Ga. App. 111, 706 S.E.2d 615 (2011) (decided under former O.C.G.A. § 24-9-69).

- As counsel allowed a detective to read from a transcript of the defendant's preliminary hearing so that counsel could cross-examine the detective about a "blank" in the transcript and thus imply that it did not reflect the defendant's entire statement, counsel's strategic decision not to object to the reading of the transcript under former O.C.G.A. § 24-9-69 did not constitute ineffective assistance. Nesbitt v. State, 296 Ga. App. 139, 673 S.E.2d 652 (2009) (decided under former O.C.G.A. § 24-9-69).

Public Records and Reports

Federal interpretation on utilization of certified document to prove absence of public records.

- The Eleventh Circuit held that a certified document is admissible under Fed. R. Evid. 803(10) to prove the absence of public records. United States v. Herrera-Britto, 739 F.2d 551 (11th Cir. 1984).

- In a vehicle collision that resulted in the death of the plaintiffs' four-year-old child, the trial court did not abuse the court's discretion in admitting evidence of the National Highway Traffic Safety Administration Office of Defect Investigation's recall request letter under the public records exception to the hearsay rule because, inter alia, some of the findings in the recall request were not labeled as tentative, including the findings that the defendant was aware of the safety benefits of placing the tank in front of the rear axle; and that a 1993 study of fire related deaths in rear crashes concluded that the increasing relocation of tanks ahead of the rear axle had a substantial effect on the reduction of those deaths in rear impacts. Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 792 S.E.2d 754 (2016), aff'd, 303 Ga. 358, 812 S.E.2d 244 (2018).

- Since Ga. L. 1953, Jan.-Feb. Sess., p. 602, § 19 did not change the rules of competency or relevancy, and since the most that laboratory evidence procured under the statute could tend to prove was the analysis of the particular blood sample tested, it was necessary for the admissibility of this evidence to lay a proper foundation by showing the identity of the blood sample tested with the decedent and the chain of custody to render the report admissible as relevant evidence. Interstate Life & Accident Ins. Co. v. Whitlock, 112 Ga. App. 212, 144 S.E.2d 532 (1965) (decided under former Ga. L. 1953, Jan.-Feb. Sess., p. 602, § 19).

It was not error to exclude portion of death certificate containing coroner's findings and to refuse to admit into evidence the coroner's jury verdict in action on insurance policy itself or for purpose of negating insurer's bad faith. Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980) (decided under former Ga. L. 1953, Jan.-Feb. Sess., p. 602, § 19).

Court of Appeals may not take judicial notice of rules and regulations of Public Service Commission. Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 76 S.E.2d 536 (1953) (decided under former Code 1933, § 93-504).

- Trial court erred by holding that a police report was inadmissible hearsay because to the extent the police report referenced observations made by the officer, the content of the police report was admissible, and the error was not harmless since the trial court expressly noted in the court's order that if the information in the police report were admissible, the trial court would find a question of fact on the issue of negligence. Maloof v. MARTA, 330 Ga. App. 763, 769 S.E.2d 174 (2015).

- Trial court erred in granting the landlord and property management company (defendants) summary judgment on their counterclaim against the tenants because the tenants provided some evidence that the defendants failure to maintain the apartment in good repair rendered the apartment unfit for habitation, forcing the tenants to vacate the apartment, including the notice and letter from the city of unhabitability, which were admissible under the public records and reports exception to the hearsay rule. Ellis v. Hartford Run Apartments, LLC, 335 Ga. App. 118, 779 S.E.2d 103 (2015), cert. denied, No. S16C0607, 2016 Ga. LEXIS 289 (Ga. 2016).

- In a suit against a public school teacher arising out of the death of a student in the teacher's classroom, evidence from an independent investigative report on the student's death was admissible on a motion for summary judgment under O.C.G.A. § 24-8-803(8)(c), given there was no reason to question its trustworthiness. Barnett v. Atlanta Indep. Sch. Sys., 339 Ga. App. 533, 792 S.E.2d 474 (2016), aff'd in part and vacated in part, 302 Ga. 845, 809 S.E.2d 813 (2018).

- In a suit by a deceased high school student's parents against a teacher for leaving the classroom unsupervised, an investigator's report was admissible in evidence under O.C.G.A. § 24-8-803(8)(c), although witnesses interviewed in the report did not testify; such factual findings resulting from an investigation made pursuant to authority granted by law were admissible unless a lack of trustworthiness was shown. Barnett v. Atlanta Independent School System, 339 Ga. App. 533, 792 S.E.2d 474 (2016), aff'd in part and vacated in part, 302 Ga. 845, 809 S.E.2d 813 (2018).

- O.C.G.A. § 16-15-9 was declared unconstitutional on the statute's face under the Sixth Amendment's confrontation clause to the extent that the statute authorized the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang; further, other alleged gang members' convictions were not admissible as business records or public records because those records were testimonial. State v. Jefferson, 302 Ga. 435, 807 S.E.2d 387 (2017).

Interest in Property

1. In General

Affidavit is a special pleading to be employed solely as a basis for raising and trying an issue as to the genuineness of a recorded deed. Haithcock v. Sargent, 145 Ga. 84, 88 S.E. 550 (1916) (decided under former Civil Code 1910, § 4210).

Former statute was intended to qualify the ordinary effect of registry, leaving the genuineness of the deed to be proved as with respect to other papers not required by law to be registered. Hanks v. Phillips, 39 Ga. 550 (1869) (decided under former Code 1868, § 2670).

Effect of the former statute was to make registration the equivalent of proof in the absence of an attack for forgery. McArthur v. Morrison, 107 Ga. 796, 34 S.E. 205 (1899) (decided under former Civil Code 1895, § 3628).

For former statute to apply, deed must have been recorded in county in which land laid; it was not sufficient if the deed had been recorded in an adjoining county in which other land embraced in the deed laid. Kennedy v. Harden, 92 Ga. 230, 18 S.E. 542 (1893) (decided under former Code 1882, § 2712).

- When the evidence offered is not as to the general reputation of a boundary pin or as to the witness's knowledge of the pin, but is what specific persons said about a specific pin, it is clear that such testimony, being hearsay and inadmissible, is properly ruled out. Collier v. Stokes, 213 Ga. 464, 99 S.E.2d 821 (1957) (decided under former Code 1933, § 85-1602).

Former statute had no application to an unregistered deed. Payne v. Ormond, 44 Ga. 514 (1871) (decided under former Code 1868, § 2670); Gorham v. Montfort, 137 Ga. 134, 72 S.E. 893 (1911);(decided under former Civil Code 1910, § 4210).

Former statute applied to any registered deed though more than 30 years old. Hill v. Nisbet, 58 Ga. 586 (1877) (decided under former Code 1873, § 2712); Patterson v. Collier, 75 Ga. 419, 54 Am. R. 472 (1885); Leverett v. Tift, 6 Ga. App. 90, 64 S.E. 317 (1909) (decided under former Code 1882, § 2712);(decided under former Civil Code 1895, § 3628).

Copy of a deed when admissible as proof may also be attacked for forgery. Patterson v. Collier, 75 Ga. 419, 54 Am. R. 472 (1885) (decided under former Code 1882, § 2712).

Copy of deed not properly recorded is not admissible into evidence. Thus, the question of forgery is immaterial. Kennedy v. Harden, 92 Ga. 230, 18 S.E. 542 (1893) (decided under former Code 1882, § 2712); Crummey & Hamilton v. Bentley, 114 Ga. 746, 40 S.E. 765 (1902);(decided under former Civil Code 1895, § 3628).

Only issue permissible under the former statute is that of forgery vel non. Roberts v. Roberts, 101 Ga. 765, 29 S.E. 271 (1897) (decided under former Civil Code 1895, § 3628).

Former statute, being a special statutory proceeding designed to answer the one purpose of calling in question and trying the one issue as to the execution of the deed, there is no authority of law for drawing into the trial of that issue questions foreign to the fact of execution, and which tend only to raise an estoppel against the alleged grantor. Richards v. Smith, 170 Ga. 398, 153 S.E. 44 (1930) (decided under former Civil Code 1910, § 4210).

Former statute applies only when recorded deed was collaterally introduced in evidence, and did not refer to instruments forming the basis of the action. Steiner v. Blair, 38 Ga. App. 753, 145 S.E. 471 (1928) (decided under former Civil Code 1910, § 4210).

3. Admissibility of Recorded Instrument

Recorded deed admissible without further proof of execution.

- Deed attested by three witnesses, one of whom was an officer authorized by law to attest deeds, and recorded was admissible in evidence without further proof of the deed's execution, and all presumptions were in favor of the deed's genuineness. Guthrie v. Gaskins, 171 Ga. 303, 155 S.E. 185 (1930) (decided under former Civil Code 1910, § 4210).

When the deed to the plaintiff, on which the plaintiff claimed title to the property in dispute, recited a valuable consideration and had been duly recorded, and no affidavit of forgery had been filed as required by the former statute, the court did not err in admitting the deed in evidence over the objection that there was no proof of the deed's execution. Page v. Brown, 192 Ga. 398, 15 S.E.2d 506 (1941) (decided under former Code 1933, § 29-415).

In a dispossessory action brought by a mortgage company against a possessor, the trial court properly granted the mortgage company a writ of possession as the company produced a recorded certified copy of the security deed, which the possessor failed to prove was a fraud since the possessor's signature on the deed matched that as appeared on the answer filed. The trial court properly rejected the possessor's attempt to examine the mortgage company's counsel regarding the authenticity of the deed since counsel represented the mortgage company and was, therefore, not competent to testify. Egana v. HSBC Mortg. Corp., 294 Ga. App. 456, 669 S.E.2d 159 (2008) (decided under former O.C.G.A. § 44-2-23).

- Generally, a registered deed is entitled to be admitted in evidence, and the effect of such a deed is a question of law for the court. Miles v. Blanton, 211 Ga. 754, 88 S.E.2d 273 (1955) (decided under former Code 1933, § 29-415).

- In the absence of an attack on a properly witnessed and recorded bill of sale, placing upon a party the burden of proving the bill of sale's execution, it was not error to admit the bill of sale without proof of the bill of sale's execution. Watkins v. Muse, 78 Ga. App. 17, 50 S.E.2d 90 (1948) (decided under former Code 1933, § 29-415).

Bill of sale for an automobile was not inadmissible because it was not recorded prior to bringing this suit. Recordation has no effect on title to personalty, which is acquired by the grantee in the bill of sale upon the execution and delivery of the instrument by the grantor. Recording an absolute bill of sale to personalty has only the effect of making the instrument admissible in evidence without further proof of the bill of sale's execution. Jones v. Liberty Mut. Fire Ins. Co., 90 Ga. App. 667, 83 S.E.2d 837 (1954) (decided under former Code 1933, § 29-415).

- Certified copy must be considered the same instrument as the original recorded retention title contract so that the admissibility of one necessarily controls the admissibility of its twin, providing, of course, that some reason appears why it should be necessary to introduce both. Dawson v. General Disct. Corp., 82 Ga. App. 29, 60 S.E.2d 653 (1950) (decided under former Code 1933, § 29-415).

4. Procedure as to Proof of Genuineness

Presumption that alteration made at or before deed's execution.

- Presumption is that any alteration was made at or before the time of the execution of the deed and, in the absence of an affidavit of forgery, the registered deed is admitted in evidence without an explanation of the alteration. Collins v. Boring, 96 Ga. 360, 23 S.E. 401 (1895) (decided under former Code 1882, § 2712); McConnell Bros. v. Slappey, 134 Ga. 95, 67 S.E. 440 (1910); Gilmer v. Harrison, 146 Ga. 721, 92 S.E. 67 (1917) (decided under former Civil Code 1895, § 3628);(decided under former Civil Code 1910, § 4210).

Presumption was sufficiently strong to admit a deed in evidence over objection that the deed had been altered since the deed's execution. Buck v. Kitchens, 155 Ga. 721, 118 S.E. 51 (1923) (decided under former Civil Code 1910, § 4210).

- Filing of the affidavit placed upon the party introducing the deed the burden of showing affirmatively what the law in case of a registered deed presumed in the party's favor: that it was in fact executed and delivered in accordance with what purported to be the facts as stated therein. Holland v. Carter, 79 Ga. 139, 3 S.E. 690 (1887) (decided under former Code 1882, § 2712); Collins v. Boring, 96 Ga. 360, 23 S.E. 401 (1895); Bentley v. McCall, 119 Ga. 530, 46 S.E. 645 (1904) (decided under former Code 1882, § 2712); Sapp v. Cline, 131 Ga. 433, 62 S.E. 529 (1908); Strickland v. Babcock Lumber Co., 142 Ga. 120, 82 S.E. 531 (1914) (decided under former Civil Code 1895, § 3628); James v. Steele, 147 Ga. 598, 95 S.E. 11 (1918);(decided under former Civil Code 1895, § 3628);(decided under former Civil Code 1910, § 4210);(decided under former Civil Code 1910, § 4210).

When the burden is upon the plaintiff to establish the genuineness of a deed, it will not suffice, after having shown the death of the two attesting witnesses to the deed, to prove the genuineness of the signature of the attesting witnesses, but, in order to carry the burden, one should go further and introduce primary evidence, that is, proof of the actual signing by the alleged maker of the deed, or of the genuineness of the maker's signature affixed thereto, or that such evidence is not attainable. Strickland v. Babcock Lumber Co., 142 Ga. 120, 82 S.E. 531 (1914) (decided under former Civil Code 1910, § 4210).

Filing an affidavit of forgery changes the burden of proof as to registered deeds, whereas primarily the party offering a deed has the burden of proving the deed's execution, the party may, in the absence of the affidavit, shift this burden by showing its regular registration, thereby making such a prima-facie case of genuineness that throughout the trial the deed is to be given the probative weight to which a genuine deed is entitled, unless further proof overcomes this presumption prima-facie raised in its favor. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940) (decided under former Code 1933, § 29-415).

Proof of signing and signature may be done by circumstantial evidence. Bentley v. McCall, 119 Ga. 530, 46 S.E. 645 (1904) (decided under former Civil Code 1895, § 3628).

- When no affidavit was filed, the burden was upon the party against whom the deed was admitted to disprove the deed's genuineness. Leverett v. Tift, 6 Ga. App. 90, 64 S.E. 317 (1909) (decided under former Civil Code 1895, § 3628); Haithcock v. Sargent, 145 Ga. 84, 88 S.E. 550 (1916); Jett v. Hart, 152 Ga. 266, 109 S.E. 654 (1921) (decided under former Civil Code 1910, § 4210);(decided under former Civil Code 1910, § 4210).

If a deed was duly recorded and no affidavit of forgery was filed, the burden of disputing the deed's genuineness rested upon the party against whom the deed had been admitted, though, in the ultimate sense, the burden of establishing the execution of the deed was upon the party offering the deed, throughout all the exigencies of the trial. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940) (decided under former Code 1933, § 29-415).

- Affidavit must be made either by alleged maker of deed, the maker's heirs, or opposite party in the case. Kelly v. William Sharp Saddlery Co., 99 Ga. 393, 27 S.E. 741 (1896) (decided under former Civil Code 1895, § 3628).

Deed, when offered, may be attacked by an affidavit of forgery by the opposite party, whether the plaintiff or the defendant, and even by one who is not a party to the cause if one is the maker of the deed or an heir of the maker of the deed. Steiner v. Blair, 38 Ga. App. 753, 145 S.E. 471 (1928) (decided under former Civil Code 1910, § 4210).

In order to cast on the applicant for registration under the Land Registration Law (see § 44-2-40 et seq.) the burden of proving the genuineness of a deed shown in the preliminary report of the examiner, an affidavit of forgery must be filed, and written objections, though verified, which aver that certain deeds are forgeries, do not amount to an affidavit of forgery. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940) (decided under former Code 1933, § 29-415).

- When the alleged maker of a deed which is the basis of an action against the maker files an affidavit that the deed is a forgery, it is the duty of the court to arrest the case and require an issue to be made and tried as to the genuineness of the alleged instrument. The court does not err in refusing to require such an issue to be made and in allowing the instrument to be admitted in evidence when the defendant admits the genuineness of the defendant's signature, and when it appears, from the defendant's testimony, that the purpose of the affidavit is not to enable the defendant to prove a material and fraudulent alteration of the instrument, subsequent to the instrument's execution, by the party claiming a benefit thereunder, but is merely to show that the defendant was induced to sign the instrument without reading the instrument, relying upon the good faith of the opposite party to incorporate therein the terms of the agreement previously arrived at. Ford v. Serenado Mfg. Co., 27 Ga. App. 535, 109 S.E. 415 (1921) (decided under former Civil Code 1910, § 4210); Odum v. Cotton States Fertilizer Co., 38 Ga. App. 46, 142 S.E. 470 (1928);(decided under former Civil Code 1910, § 4210).

- Affidavit of forgery was to be filed when the execution of a deed was denied, was in effect only a special pleading by which the factum of a deed may be determined in a special proceeding. Except for casting the burden of establishing the genuineness of the deed upon the party tendering the deed, the special plea was in effect no more than any other defense, for even though no affidavit of forgery was filed, if the defendant in the defendant's plea denied the execution of the deed, evidence was nevertheless admissible which tended to show that the deed is forged and fraudulent. United States v. 550.6 Acres of Land, 68 F. Supp. 151 (N.D. Ga. 1945), aff'd sub nom. Shropshire v. Hicks, 157 F.2d 767 (5th Cir. 1946) (decided under former Code 1933, § 29-415).

Notwithstanding that the deed had been recorded, the plaintiff was not required to file an affidavit of forgery, but could assail the deed's genuineness by allegation, thereby assuming the burden of disproving the deed's genuineness. Stow v. Hargrove, 203 Ga. 735, 48 S.E.2d 454 (1948) (decided under former Code 1933, § 29-415).

- It is possible to enter into possession of premises in good faith under forged deed, but the circumstances attendant upon the execution of the forgery are admissible in evidence as throwing light upon the bona fides of entry. Thorpe v. Atwood, 100 Ga. 597, 28 S.E. 287 (1897) (decided under former Civil Code 1895, § 3628).

- Upon decision of forgery issue against the plaintiff, plaintiff has right to move for new trial. Vance v. Gamble, 95 Ga. 730, 22 S.E. 576 (1895) (decided under former Code 1882, § 2712).

5. Illustrative Cases

Reversible error not found in admission of deed.

- In an action for trespass to land, it was not reversible error to admit in evidence a deed conveying to the defendant all of a certain land lot, when the entire controversy was with regard to only a portion of that lot, and the prevailing party relied for that party's claim to this portion of the lot not on this deed, but to other paper title and independent adverse possession. Anderson v. Black, 191 Ga. 627, 13 S.E.2d 650 (1941) (decided under former Code 1933, § 29-415).

- A 2003 warranty deed that operated to release a prior lender's security interest in the property was not a forgery but was signed by someone fraudulently assuming the authority of an officer of the prior lender and was regular on the deed's face. Therefore, a subsequent lender that foreclosed on the property and purchased the property at the foreclosure sale was a bona fide purchaser for value entitled to take the property free of the prior lender's security interest. Deutsche Bank Nat'l Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307, 704 S.E.2d 823 (2010) (decided under former O.C.G.A. § 44-2-23).

- Proof that a deed purporting to have been executed in 1835 was not recorded until 1883, when the subscribing witnesses were dead and shortly before the action for the land was brought, and also that the alleged grantor could not, in fact, write the grantor's name, and signed interrogatories with the grantor's mark, denying the signature of the deed, while the deed purported to be signed in writing, was held sufficient to establish forgery. Walker v. Logan, 75 Ga. 759 (1885) (decided under former Code 1882, § 2712).

When the plaintiff, in an equitable proceeding seeking to enjoin the defendant from evicting the plaintiff from the premises, allege that the plaintiff was not a tenant of the defendant but was the owner of the premises, and that if the defendant claimed to have a deed to the premises, the deed was either a forgery or was fraudulently obtained, and the defendant in the defendant's answer claimed that the plaintiff was a tenant and that the defendant owned the title by virtue of the deed from the plaintiff, and the plaintiff testified that the plaintiff never executed a deed conveying the land to the defendant, this was sufficient (even though the recorded deed was introduced in evidence, and even though the subscribing witnesses testified as to its genuineness) to support a verdict and decree in favor of the plaintiff permanently enjoining the defendant from evicting the plaintiff from the premises involved. Hightower v. Phillips, 184 Ga. 532, 192 S.E. 26 (1937) (decided under former Code 1933, § 29-415).

6. Mortgages

Seal not necessary.

- When the execution of a deed or mortgage has been admitted or proved, it is not a ground to exclude the deed or mortgage from evidence that the deed or mortgage is not under seal. Vizard v. Moody, 119 Ga. 918, 47 S.E. 348 (1904) (decided under former Civil Code 1895, § 2782).

- An original retention title contract, which was recorded, and a certified copy of this original must for purposes of admissibility, be considered as one and the same instrument, so that the admissibility of one necessarily controls the admissibility of its twin, providing, of course, that some reason appears why it should be necessary to introduce both. Dawson v. General Disct. Corp., 82 Ga. App. 29, 60 S.E.2d 653 (1950) (decided under former Code 1933, § 67-110).

- Recording of a mortgage in the proper office in another state does not make a certified copy of it admissible in evidence, or dispense with proof of the execution of the original. Baskin v. Vernon, 74 Ga. 370 (1884) (decided under former Code 1882, § 1954); Pepper v. James, 7 Ga. App. 518, 67 S.E. 218 (1910); 10 Ga. App. 266, 73 S.E. 407 (1912), later appeal,(decided under former Civil Code 1895, § 2782).

- Evidence that a mortgage on personal property was filed for record and recorded in Elbert County was not sufficient to dispense with proof of the execution of the mortgage when it appeared without contradiction that the mortgagor resided in Wilkes County. Williams v. State, 13 Ga. App. 338, 79 S.E. 207 (1913) (decided under former Code 1910, § 3261).

- When recorded, a bill of sale is admissible in evidence under the same rules as govern the admission of registered mortgages. Anderson & Conley v. Leverette, 116 Ga. 732, 42 S.E. 1026 (1902) (decided under former Civil Code 1895, § 2782).

Ancient Documents

Proof without compliance.

- An instrument may be properly admitted as having been sufficiently proved pursuant to former Code 1933, § 38-707 (see now O.C.G.A. § 24-9-903), irrespective of whether or not there was a sufficient compliance with former Code 1933, § 38-312. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 38-312).

- Copy was not admissible as an ancient document; the paper itself must be introduced. Jones v. Morgan, 13 Ga. 515 (1853) (decided under former law); Bryan v. Walton, 14 Ga. 185 (1853);(decided under former law).

- Deed proven to be 30 years of age, purporting to be signed by the alleged grantor and under which the grantor surrendered possession to the person purporting to be the grantee who by the grantee and the grantee's privies in estate remained in possession, was so far proven to be the genuine deed of the alleged grantor, and so far established the genuineness of the grantor's signature thereto, as to authorize the deed's admission in evidence, for the purpose of a comparison of handwriting, upon the trial of a cause involving the question of the genuineness of the signature of such grantor to another instrument. Goza v. Browning, 96 Ga. 421, 23 S.E. 842 (1895) (decided under former Civil Code 1895, § 5184).

Bond for title to land, if 30 years old, accompanied with proof of possession under the bond, was held to be admissible in evidence. Beverly v. Burke, 9 Ga. 440, 54 Am. Dec. 351 (1851) (decided under former law).

Marriage contract was held to be admissible in evidence as an ancient document. Adams v. Dickson, 23 Ga. 406 (1857) (decided under former law).

Muniments of title proven to have been in existence for 40 years, with possession in conformity, and coming from the proper custody, were admissible as ancient documents. Bell v. McCawley, 29 Ga. 355 (1859) (decided under former law).

Will more than 50 years old, proven and recorded in the proper office, is admissible as an ancient paper or document, notwithstanding that probate is defective; provided, possession has been held of the property under and by virtue of that will. Jordan v. Cameron, 12 Ga. 267 (1852) (decided under former law).

Plat that does not show it was purportedly made by authority since it was shown to have been made before the city charter was ever issued does not meet the requirements of law, and could not be used in evidence without other testimony or evidence. Central of Ga. Ry. v. City of Metter, 222 Ga. 74, 148 S.E.2d 661 (1966) (decided under former Code 1933, § 38-312).

Ancient Boundaries and Landmarks

Metes and bounds description prevails over description as numbered lot.

- If a deed describes land as being parts of certain numbered lots, and also contains a description of the tract of land by metes and bounds, calling for natural, visible, and ascertained objects and monuments, and such description by such metes and bounds includes a part of a lot not designated by number, such metes and bounds must govern. McCann v. Miller, 177 Ga. App. 53, 338 S.E.2d 509 (1985) (decided under former O.C.G.A. § 24-3-13).

- Deed wherein the description of the property sought to be conveyed is so vague and indefinite as to afford no means of identifying any particular tract of land is inoperative either as a conveyance of title or as color of title. McCann v. Miller, 177 Ga. App. 53, 338 S.E.2d 509 (1985) (decided under former O.C.G.A. § 24-3-13).

- An ancient boundary, corner, or station tree cannot, generally, be proved otherwise than by reputation; consequently, hearsay evidence is admissible for this purpose, from the necessity of the case. It is not the best testimony, however, to prove the identity of a lot of land, there being higher evidence of that fact in the power of the party. Martin v. Atkinson, 7 Ga. 228, 50 Am. Dec. 403 (1849) (decided under former law).See also Riley v. Griffin, 16 Ga. 141, 60 Am. Dec. 726 (1854) (decided under former law).

Present day reputation is not sufficient to establish a line or landmark. McAfee v. Newberry, 144 Ga. 473, 87 S.E. 392 (1915) (decided under former Civil Code 1910, § 5772); Patterson v. Baugh, 56 Ga. App. 660, 193 S.E. 364 (1937);(decided under former Code 1933, § 38-313).

- In a boundary line dispute filed pursuant to O.C.G.A. § 23-3-61, the trial court properly entered judgment on a jury verdict in favor of the plaintiffs, two landowners, and against their neighbor, and then denied the neighbor a new trial, or alternatively a judgment notwithstanding the verdict as: (1) the boundary line indicated on a plat reflecting the locations of monuments on the parcel owned by two landowners complied with the monuments referenced in the original warranty deed; and (2) the neighbor agreed to a special verdict form allowing the jury to find that the plat submitted by the two landowners accurately and sufficiently showed the true boundary line. Dover v. Higgins, 287 Ga. App. 861, 652 S.E.2d 829 (2007), cert. denied, No. S08C0402, 2008 Ga. LEXIS 237 (Ga. 2008) (decided under former O.C.G.A. § 24-3-13).

Evidence of declarations of persons since deceased, relative to the location of a landmark, is admissible over an objection on the ground of hearsay. Deaton v. Swanson, 196 Ga. 833, 28 S.E.2d 126 (1943) (decided under former Code 1933, § 38-313); Phelps v. Huff, 214 Ga. App. 398, 448 S.E.2d 64 (1994);(decided under former O.C.G.A. § 24-3-13).

A witness's testimony to declarations made to the witness a number of years earlier by a now deceased predecessor in title regarding the disputed location of the line between the properties of the contesting parties is admissible as an exception to the hearsay rule. Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975) (decided under former Code 1933, § 38-313).

As evidence the owners of several parcels of land sought to introduce regarding an iron pin was not as to the general reputation of the pin but rather was what the original grantor (by then deceased) had said about that specific pin, the evidence was hearsay and was properly excluded from a quiet title trial. Gibson v. Rustin, 297 Ga. App. 169, 676 S.E.2d 799 (2009) (decided under former O.C.G.A. § 24-3-13).

- Appraisals of property by a deceased appraiser were not admissible in a wrongful foreclosure action since the appraisals represented the opinion of the appraiser and as such constituted hearsay. Dickens v. Calhoun First Nat'l Bank, 214 Ga. App. 490, 448 S.E.2d 237 (1994) (decided under former O.C.G.A. § 24-3-13).

That a smaller tract is located within a larger tract, if the boundaries of which larger tract are not located, cannot be shown by common reputation. McAfee v. Newberry, 144 Ga. 473, 87 S.E. 392 (1915) (decided under former Civil Code 1910, § 5772).

In locating land described in a deed it is competent to establish the land's boundaries by proof of traditional reputation in the neighborhood, derived from ancient sources or from the declarations of persons since deceased who had peculiar means of knowing what the reputation of the boundary was in an ancient day. McAfee v. Newberry, 144 Ga. 473, 87 S.E. 392 (1915) (decided under former Civil Code 1910, § 5772).

When land conveyed in a deed is described as a city lot "designated by stakes", extrinsic evidence may supply the location and shape of the particular tract of land. The test as to the sufficiency of the description in a deed is whether or not it discloses with sufficient certainty the intention of the grantor with respect to the quantity and location of the land therein described. Lankford v. Pope, 206 Ga. 430, 57 S.E.2d 538 (1950) (decided under former Code 1933, § 38-313).

- When the location of the line between two counties was disputed, and the line between adjoining lands coincided with the county line, which was claimed by both sides to be a straight line, evidence was admissible to show that for a considerable distance south of the place where the line was in dispute owners of land in the two counties, whose lands were bounded by the county line, had built fences up to a certain line and recognized it as being the county line, and had so bounded their possessions for 20 years or more; and that the line run between the lands of the parties by processioners was a continuation of the line so recognized. Ivey v. Cowart, 124 Ga. 159, 52 S.E. 436, 110 Am. St. R. 160 (1905) (decided under former Civil Code 1895, § 5185).

As to the location of county lines and state lines and other boundaries, a witness is entitled to testify from what others have told the witness, from reputation in the community, and from hearsay. Green v. State, 123 Ga. App. 286, 180 S.E.2d 564 (1971) (decided under former Code 1933, § 38-313).

- While no natural landmarks established the disputed boundary between property belonging to the parties, other evidence did, including iron pipes marking the corners of the property, a fence line, a hedgerow, and acquiescence in the boundary, and the failure in landowners' deed to reference the land lot where the disputed acreage was located did not determine the result; sufficient evidence supported the trial court's findings as to the location of the boundary line. Sledge v. Peach County, 276 Ga. App. 780, 624 S.E.2d 288 (2005) (decided under former O.C.G.A. § 24-3-13).

- Venue must be proved positively, and one of the methods of proving venue is by the testimony of witnesses as to their knowledge of a place, which the witnesses have learned from hearsay and from reputation. Green v. State, 123 Ga. App. 286, 180 S.E.2d 564 (1971) (decided under former Code 1933, § 38-313).

Instrument complying fully with provisions of the former statute proved itself. Matthews v. Castleberry, 43 Ga. 346 (1871) (decided under former Code 1868, § 2658).

Instrument must be right upon the instrument's face, or made so by proof, before the instrument's age alone will dispense with proof. Hill v. Nisbet, 58 Ga. 586 (1877) (decided under former Code 1873, § 2700); Ferrell v. Hurst, 68 Ga. 132 (1881);(decided under former Code 1873, § 2700).

There must be preliminary proof of deed coming from proper custody. Harrell v. Culpepper, 47 Ga. 635 (1873) (decided under former Code 1868, § 2658); Maddox v. Gray, 75 Ga. 452 (1885); Swicard v. Hooks, 85 Ga. 580, 11 S.E. 863 (1890) (decided under former Code 1882, § 2700); Williamson v. Mosley, 110 Ga. 53, 35 S.E. 301 (1900);(decided under former Civil Code 1895, § 3610);(decided under former Civil Code 1895, § 3610).

Rebuttal of preliminary proof by any competent evidence may be made. Albright v. Jones, 106 Ga. 302, 31 S.E. 761 (1898) (decided under former Civil Code 1895, § 3610).

- Ordinarily the recording of a deed is prima facie evidence of delivery. This presumption is rebutted when the recording takes place after the death of the grantor as delivery must occur during the grantor's lifetime. Corley v. Parson, 236 Ga. 346, 223 S.E.2d 708 (1976) (decided under former Code 1933, § 29-112).

- When such deed as described in the former statute was apparently genuine, had come from the proper custody, and was shown not to be inconsistent with possession, or if other corroboration appeared, it should be admitted in evidence as prima facie established. But the jury had the right to finally pass on the deed's genuineness, after hearing all the testimony pro and con. Gaskins v. Guthrie, 162 Ga. 103, 132 S.E. 764 (1926) (decided under former Civil Code 1910, § 4190).

Jury may find from face of deed that it was a forgery, without resort to aliunde evidence. Pridgen v. Green, 80 Ga. 737, 7 S.E. 97 (1888) (decided under former Code 1882, § 2700); Daugharty v. Drawdy, 134 Ga. 650, 68 S.E. 472 (1910);(decided under former Civil Code 1895, § 3610).

Instrument may be properly admitted as having been sufficiently proved pursuant to former Code 1933, § 38-707 (see now O.C.G.A. § 24-9-903), irrespective of whether or not there was a sufficient compliance with the rule admitting ancient writings without proof. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 29-112).

Proof of Pedigree

1. In General

- Former statute did not arise from a legislative enactment, but from a codification of the general rule. Terry v. Brown, 142 Ga. 224, 82 S.E. 566 (1914) (decided under former Civil Code 1910, § 5764).

Former statute was declaratory of the common law. Whigby v. Burnham, 135 Ga. 584, 69 S.E. 1114 (1911) (decided under former Civil Code 1910, § 5764).

Former statute provided one of the specified cases in which the general hearsay rule had been relaxed. Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Code 1933, § 38-303).

Rule as to proof of race-ancestry is not so strict as the rule as to proof of pedigree which confines evidence of reputation to general repute in the family. White v. Holderby, 192 F.2d 722 (5th Cir. 1951) (decided under former Code 1933, § 38-303).

Possession of land cannot be established by family repute. Luttrell v. Whitehead, 121 Ga. 699, 49 S.E. 691 (1905) (decided under former Civil Code 1895, § 5177).

Relationship cannot be proved by reputation in community outside of family. Lamar v. Allen, 108 Ga. 158, 33 S.E. 958 (1899) (decided under former Civil Code 1895, § 5177).

- When the question is whether any, or what, relationship exists between two supposed branches of the same family, it is sufficient to establish the connection of the deceased declarant with either branch in order to render such declaration admissible. Terry v. Brown, 142 Ga. 224, 82 S.E. 566 (1914) (decided under former Civil Code 1910, § 5764).

- It was competent for a caveatrix to support a contention that she was the next of kin of the decedent by proving declarations to that effect made by the latter while in life. Malone v. Adams, 113 Ga. 791, 39 S.E. 507, 84 Am. St. R. 259 (1901) (decided under former Civil Code 1895, § 5177).

- In order for a new trial to be granted on the ground that the prosecutor was related to one of the jurors, it must be shown that the witness, testifying to such relationship, was testifying either from personal knowledge or from knowledge acquired by some means within the purview of the law. Davis v. State, 24 Ga. App. 776, 102 S.E. 378, cert. denied, 24 Ga. App. 816 (1920) (decided under former Civil Code 1910, § 5764); Davis v. State, 150 Ga. 19, 102 S.E. 445 (1920);(decided under former Civil Code 1910, § 5764).

Affidavits by relatives, showing relationship to challenged jurors, are properly admitted in support of motion for new trial. Harris v. State, 188 Ga. 745, 4 S.E.2d 651 (1939) (decided under former Code 1933, § 38-303).

- When the paternity of a child is the issue involved, the declarations of the reputed father, since deceased, are admissible in evidence. The weight to be given the declarations is a matter for the jury. Estill v. Estill, 149 Ga. 384, 100 S.E. 365 (1919) (decided under former Civil Code 1910, § 5764).

Proof seeking indirectly to show that a child is illegitimate, by showing general reputation in the community that the father was a single man, was inadmissible. Gibson v. Mason, 31 Ga. App. 584, 121 S.E. 584 (1924) (decided under former Civil Code 1910, § 5764).

- Husband of the plaintiff having testified that she was his wife and that she was the mother of the deceased child sufficiently proved the necessary relationship between the plaintiff and the deceased. Scoggins v. Hughes, 112 Ga. App. 777, 146 S.E.2d 134 (1965) (decided under former Code 1933, § 38-303).

Births may be proved by general repute in the family. Luke v. Hill, 137 Ga. 159, 73 S.E. 345, 38 L.R.A. (n.s.) 559 (1911) (decided under former Civil Code 1910, § 5764); Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942);(decided under former Code 1933, § 38-303).

Witness may testify to the witness's age without first requiring the witness to show from what source the witness derived the witness's information, and when and where the witness was born. Central R.R. v. Coggin, 73 Ga. 689 (1884) (decided under former Code 1882, § 3772); McCollum v. State, 119 Ga. 308, 46 S.E. 413, 100 Am. St. R. 171 (1904);(decided under former Civil Code 1895, § 5177).

- Bible containing a family record, in the handwriting of a deceased daughter, which remained in the possession of the mother until her death, and then went into the possession of daughters, from whom the witness got it, is competent evidence on the question of age of one of the children of that mother. Southern Life Ins. Co. v. Wilkinson, 53 Ga. 535 (1874) (decided under former Code 1873, § 3772).

4. Marriage

Proof of marriage.

- Fact of marriage may be at least prima facie shown by proof of general repute in family, by proof of general reputation in the community, or by proof of the fact that the man or the woman, as the case may be, lives together with a person of the opposite sex as his or her spouse, with general recognition in the community of their being married to each other. Plummer v. State, 27 Ga. App. 185, 108 S.E. 128 (1921) (decided under former Civil Code 1910, § 5764). Drawdy v. Hesters, 130 Ga. 161, 60 S.E. 451 (1908) See also Gibson v. Mason, 31 Ga. App. 584, 121 S.E. 584 (1924) (decided under former Civil Code 1895, § 5177);(decided under former Civil Code 1910, § 5764).

- On an issue of validity of marriage, the declarations of the parties themselves that they were or were not married, made without view to litigation, are admissible evidence of the fact declared. But the declaration of such party as to a fact, evidentiary of the invalidity of the marriage, does not come within this exception to the rule of hearsay evidence. Whigby v. Burnham, 135 Ga. 584, 69 S.E. 1114 (1911) (decided under former Civil Code 1910, § 5764).

5. Death

Proof of death.

- While, in a sense, hearsay was admissible to prove death, yet before the hearsay was admissible for that purpose, it must come up to the requirements of the former statute. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S.E. 51 (1911) (decided under former Civil Code 1910, § 5764); Cone v. Lythgoe, 40 Ga. App. 491, 150 S.E. 465 (1929);(decided under former Civil Code 1910, § 5764).

Death could be established as provided by the former statute, by family repute, but by no other species of hearsay evidence. Ferguson v. Atlanta Newspapers, Inc., 91 Ga. App. 115, 85 S.E.2d 72 (1954) (decided under former Code 1933, § 38-303).

- It was not competent for a witness to testify as to the death of a certain person, and who were the witness's heirs surviving at a certain date when a deed was executed, the witness testifying that the witness did not know these facts from the witness's own personal knowledge, but the witness knew the facts from family repute and from various other sources of information, such as a vast amount of correspondence from the decedent's family, and from the court records, and from wills and documents, which made the matter conclusive so far as could be ascertained by search. Imboden v. Etowah & Battle Branch Mining Co., 70 Ga. 86 (1883) (decided under former Code 1882, § 3772); Mobley v. Baxter & Co., 143 Ga. 565, 85 S.E. 859 (1915); Mobley v. Pierce, 144 Ga. 327, 87 S.E. 24 (1915) (decided under former Civil Code 1910, § 5764);(decided under former Civil Code 1910, § 5764).

After proof that a woman was married, her declaration that she had heard her husband was dead is not admissible to prove his death; it not appearing from whom her information was derived. Williams v. State, 86 Ga. 548, 12 S.E. 743 (1891) (decided under former Code 1882, § 3772).

- In an action brought by a wife upon a policy of insurance in her favor upon the life of her husband, the insurance being against death by accident within one year from the date of the policy, and he having disappeared within the year, that his family regarded him as dead, or recognized him as being dead, is not competent evidence in behalf of the plaintiff. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890) (decided under former Code 1882, § 3772).

6. Requirements for Admission

Limitation on rule.

- Former statute which permitted declarations to be received in proof of pedigree was limited to the extent that the declarations must have been made without view to litigation and under such circumstances that the person making the declarations could have no motive to misrepresent the facts. Mobley v. Pierce, 144 Ga. 327, 87 S.E. 24 (1915) (decided under former Civil Code 1910, § 5764); Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942); Johnson v. Roberson, 88 Ga. App. 548, 77 S.E.2d 232 (1953) (decided under former Code 1933, § 38-303);(decided under former Code 1933, § 38-303).

- Witnesses must appear to have had fair knowledge, or fair opportunity for acquiring knowledge upon the subject. It is not required that the witnesses were present at the birth, marriage, or death to be competent to testify as to relationship. Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931) (decided under former Civil Code 1910, § 5764).

Declarations concerning pedigree, to be admissible, need not be upon the knowledge of the declarant. Thus, evidence is admissible that a deceased member of the family said that the deceased heard from others of the deceased's family the facts of family history which the deceased stated. Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Code 1933, § 38-303).

- One of the conditions upon which family tradition is received in evidence is that it emanate from a source within the family, and from persons having such a connection with the party to whom it relates that it is natural and likely that they cannot be mistaken and will speak the truth. In the event it appears that the evidence offered does not emanate from such source, the presumption of the reliability of the source of information is rebutted and the evidence becomes inadmissible. Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Code 1933, § 38-303).

- Declarations respecting pedigree do not stand upon the footing of secondary evidence to be excluded when a witness can be produced who speaks upon the subject from the witness's own knowledge. This rule of law rests upon the presumption that the declaration or family tradition comes from persons who have competent knowledge with respect to the subject matter of the declaration, and speak the truth with reference thereto. Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Code 1933, § 38-303).

Notwithstanding the declarant did not mention the source from which the declarant derived the declarant's information, facts of family history heard from other family members are admissible. Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Code 1933, § 38-303).

- Before the declarations of deceased persons may be received in evidence, the fact of relationship must be shown by other evidence. Greene v. Almand, 111 Ga. 735, 36 S.E. 957 (1900) (decided under former Civil Code 1895, § 5177); Terry v. Brown, 142 Ga. 224, 82 S.E. 566 (1914); Mobley v. Pierce, 144 Ga. 327, 87 S.E. 24 (1915) (decided under former Civil Code 1910, § 5764); Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931); Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Civil Code 1910, § 5764);(decided under former Civil Code 1910, § 5764);(decided under former Code 1933, § 38-303).

Only slight proof of relationship is required as a foundation for the admission of hearsay evidence regarding pedigree. Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Code 1933, § 38-303).

- When a witness reports matters of general repute and tradition in the witness's own family, it is not necessary for the witness to first establish by independent evidence the witness's relationship to the witness's family. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 38-303).

No particular form of statement is required to render a declaration as to pedigree admissible. It may be oral or written, such as a letter or a recital in a deed. Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942) (decided under former Code 1933, § 38-303).

- When affidavit contained declarations tending to establish pedigree, and contained other statements which were inadmissible if properly objected to, and when the admissibility of such affidavit was objected to as a whole, upon the ground that it was hearsay and not binding upon the defendants, its admission over such objection is not ground for a new trial. Massell Realty Co. v. Hanbury, 165 Ga. 534, 141 S.E. 653 (1928) (decided under former Civil Code 1910, § 5764).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the provisions, opinions under Ga. L. 1952, p. 177, §§ 1, 2, 3 are included in the annotations for this Code section.

- Although computer printout sheets are generally classified as hearsay, and to be admissible into evidence the sheets must fall within an exception to the well-known hearsay rule, subject to the discretion of the court, computer printout sheets or records stored in an electronic computer may be admissible into evidence when such are permanent records made in the regular course of business. 1973 Op. Att'y Gen. No. 73-91 (decided under Ga. L. 1952, p. 177, §§ 1, 2, 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Coroners or Medical Examiners, § 13 et seq. 23 Am. Jur. 2d, Deeds, § 166. 29A Am. Jur. 2d, Evidence, §§ 154, 694, 874, 881, 1099, 1195 et seq. 42 Am. Jur. 2d, Inspection Laws, § 11. 81 Am. Jur. 2d, Witnesses, § 742.

Admissibility of Computerized Business Records, 14 POF2d 173.

Foundation for Offering Business Records in Evidence, 34 POF2d 509.

Routine Business Practice, 35 POF2d 589.

Recovery and Reconstruction of Electronic Mail as Evidence, 41 POF3d 1.

Establishing A Foundation to Admit Computer-Generated Evidence as Demonstrative or Substantive Evidence, 57 POF3d 455.

- 26A C.J.S., Deeds, §§ 507, 529. 31A C.J.S., Evidence, §§ 299, 310, 311, 332 et seq., 342, 345, 346, 349, 371, 548 et seq. 32 C.J.S., Evidence, §§ 885, 886, 916 et seq., 924, 939 et seq., 967, 971 et seq. 32A C.J.S., Evidence, §§ 978 et seq., 1029 et seq., 1072 et seq., 1296.

- Death certificate as evidence, 17 A.L.R. 359; 42 A.L.R. 1454; 96 A.L.R. 324.

Effect of filing affidavit of forgery against ancient deed, 18 A.L.R. 908.

Character and sufficiency of evidence to show that letter was mailed, 25 A.L.R. 9; 86 A.L.R. 541.

Entries in family Bible as evidence, 29 A.L.R. 372.

Dispensing with proof of proper custody as condition of admission of ancient document, 29 A.L.R. 630.

Illness after partaking of food or drink as evidence of negligence on part of one who prepared or sold it, 49 A.L.R. 592.

Parol evidence as applied to escrow agreements, 49 A.L.R. 1529.

Requirement of "positive" proof of death of insured as excluding circumstantial evidence, 60 A.L.R. 592.

Extrajudicial admissions by principal as evidence against surety, 60 A.L.R. 1500.

Necessity and manner of authenticating paper purporting to be act of private corporation, 65 A.L.R. 329.

Validity, construction, and effect of statutory provision to effect that corporate stock book shall be evidence, 65 A.L.R. 758.

Admissibility of opinion of medical expert as affected by his having heard the person in question give the history of his case, 65 A.L.R. 1217; 51 A.L.R.2d 1051.

Use of memorandum by witness to refresh recollection as affected by the time when it was made, 65 A.L.R. 1478; 125 A.L.R. 19.

Admissibility of declarations by one involved in an accident in relation to his employment by or agency for other person, 67 A.L.R. 170; 150 A.L.R. 623.

Forgery as affecting registration under Torrens Act, 68 A.L.R. 357.

Admissibility of telephone conversations in evidence, 71 A.L.R. 5; 105 A.L.R. 326.

Admissibility of hospital chart or other hospital record, 75 A.L.R. 378; 120 A.L.R. 1124.

Admissibility of declarations of testator on issue of undue influence, 79 A.L.R. 1447; 148 A.L.R. 1225.

Admissibility of declarations by testator on issue of revocation of will, 79 A.L.R. 1493; 172 A.L.R. 354.

Admissibility of statements or declarations of plaintiff's spouse in an action for alienation of affections for the purpose of showing his or her mental state, 82 A.L.R. 825.

Admissibility of loose-leaf systems of accounts, 83 A.L.R. 806.

Admissibility of dying declarations in cases other than prosecution for homicide, 91 A.L.R. 560.

Admissibility in favor of beneficiary of life or accident insurance of statements or declarations made by insured outside of his application, 93 A.L.R. 413.

Admissibility and weight of evidence of defendant's attempt to secure release by bribing officer, 93 A.L.R. 810.

Admissibility of memoranda made by one since deceased regarding matters in respect of which he acted for one of the parties to the present litigation, 103 A.L.R. 1501.

Privilege against self-incrimination as justification for refusal to comply with order or subpoena requiring production of books or documents of private corporation, 120 A.L.R. 1102.

Refreshment of recollection by use of memoranda or other writings, 125 A.L.R. 19; 82 A.L.R.2d 473.

Admissibility on issue of negligence or contributory negligence of statements warning one of danger, 125 A.L.R. 645.

Admissibility as res gestae of declaration by nonparticipant as affected by evidence or lack of evidence that he actually observed the act or fact, 127 A.L.R. 1030.

Admissibility of testimony of witness at former trial or in another case to cover gaps or omissions, due to faulty memory or other causes, in his present testimony given in person or by deposition, 129 A.L.R. 843.

Admissibility of statements by one who claimed to have met with an accident, as evidence of fact of accident, 130 A.L.R. 291.

Admissibility, on issue of negligence or contributory negligence, of statement or comment in respect of conduct of driver of car, or other person, shortly afterwards involved in an accident, 140 A.L.R. 874.

Admissibility of books of account as affected by mutilation, erasures, or alterations, 142 A.L.R. 1406.

Statute providing for admissibility as evidence of records or entries in the regular course of business (Model Act) as applicable to reports of accidents, 144 A.L.R. 727; 10 A.L.R. Fed 858.

Statute which disqualified one person as a witness because of death of another, as applicable to testimony as to statements or acts of deceased, offered as part of res gestae or to show mental condition ("verbal act" theory), 146 A.L.R. 250.

Financial statement or report to stockholders as admissible in evidence on issue between seller and purchaser as to value of stock sold, 147 A.L.R. 1150.

Admissibility of corporate books and records against officers or stockholders in criminal prosecutions against them, 154 A.L.R. 279.

Admissibility of evidence of complaint or details of complaint by alleged victim of rape or other similar offense as affected by fact that she is not a witness or is incompetent to testify because of age or other reason, 157 A.L.R. 1359.

Res gestae utterances in actions founded on accidents, 163 A.L.R. 15.

Binding effect of party's own unfavorable testimony, 169 A.L.R. 798.

Admissibility against beneficiary of life or accident insurance policy of statements of third persons included in or with proof of death, 1 A.L.R.2d 365.

Inability of person making utterance to recollect and narrate facts to which it relates as affecting its admissibility as part of res gestae, 7 A.L.R.2d 1324.

Admissibility of declaration of persons other than members of family as to pedigree, 15 A.L.R.2d 1412.

What constitutes books of original entry within rule as to admissibility of books of account, 17 A.L.R.2d 235.

Verification and authentication of slips, tickets, bills, invoices, etc., made in regular course of business, under the Uniform Business Records as Evidence Act, or under similar "Model Acts,", 21 A.L.R.2d 773.

Proof of identity of person or thing where object, specimen, or part is taken from a human body, as basis for admission of testimony or report of expert or officer based on such object, specimen, or part, 21 A.L.R.2d 1216.

Coroner's verdict or report as evidence on issue of suicide, 28 A.L.R.2d 352.

Admissibility, on issue of child's legitimacy or parentage, of declarations of parents, relatives, or the child, deceased or unavailable, 31 A.L.R.2d 989.

Carrier's issuance of bill of lading or shipping receipt, without notation thereon of visible damage or defects in shipment, as creating presumption or prima facie case of good condition when received, 33 A.L.R.2d 867.

Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased, 34 A.L.R.2d 451.

Admissibility of declarations of grantor on issue of delivery of deed, 34 A.L.R.2d 588.

Admissibility, in prosecution for illegal sale of intoxicating liquor, of other sales, 40 A.L.R.2d 817.

Admissibility of records or report of welfare department or agency relating to payment to or financial condition of particular person, 42 A.L.R.2d 752.

Admissibility of hospital record relating to cause or circumstances of accident or incident in which patient sustained injury, 44 A.L.R.2d 553.

Admissibility in evidence of ancient maps and the like, 46 A.L.R.2d 1318.

Admissibility of dying declaration in civil case, 47 A.L.R.2d 526.

Admissibility as res gestae of statements or exclamations relating to cause of, or responsibility for, motor vehicle accident, 53 A.L.R.2d 1245.

Spontaneity of declaration sought to be admitted as part of res gestae as question for court or ultimately for jury, 56 A.L.R.2d 372.

Admissibility of evidence of reputation or declaration as to matter of public interest, 58 A.L.R.2d 615.

Admissibility, in action on employee fidelity bond or policy, of confessions or declarations of such employee no longer available as witness, 65 A.L.R.2d 631.

Admissibility in civil action of electroencephalogram, electrocardiogram, or other record made by instrument used in medical test, or of report based upon such test, 66 A.L.R.2d 536.

Admissibility, in civil assault and battery action, of similar acts or assaults against other persons, 66 A.L.R.2d 806.

Forged deed or bond for title as constituting color of title, 68 A.L.R.2d 452.

Admissibility in evidence of enlarged photographs or photostatic copies, 72 A.L.R.2d 308.

Admissibility and weight of surveys or polls of public or consumers' opinion, recognition, preference, or the like, 76 A.L.R.2d 619, 98 A.L.R. Fed. 20.

Admissibility in criminal case, as part of the res gestae, of statements or utterances of bystanders made at time of arrest, 78 A.L.R.2d 300.

Reviewing, setting aside, or quashing of verdict at coroner's inquest, 78 A.L.R.2d 1218.

Admissibility in evidence of receipt of third person, 80 A.L.R.2d 915.

Declarant's age as affecting admissibility as res gestae, 83 A.L.R.2d 1368; 15 A.L.R.4th 1043.

Admissibility of homicide victim's statements exculpating the accused, 95 A.L.R.2d 637.

Admissibility, as part of res gestae, of accusatory utterances made by homicide victim after act, 4 A.L.R.3d 149.

Procuring signature by fraud as forgery, 11 A.L.R.3d 1074.

Admissibility of party's book accounts to prove loans or payments by person by or for whom they are kept, 13 A.L.R.3d 284.

Admissibility, as res gestae, of statements relating to origin or cause of, or responsibility for, fire, 13 A.L.R.3d 1114.

Presumptions and burden of proof as to time of alteration of deed, 30 A.L.R.3d 571.

Necessity of expert evidence to support action against hospital for injury to or death of patient, 40 A.L.R.3d 515.

Burden of proof defendant's age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

Admissibility, as part of res gestae, of spontaneous utterances of unidentified bystander testified to by an interested party, 50 A.L.R.3d 716.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital records, 55 A.L.R.3d 551.

Letters to or from customers or suppliers as business records under statutes authorizing reception of business records in evidence, 68 A.L.R.3d 1069.

Admissibility under business entry statutes of hospital records in criminal case, 69 A.L.R.3d 22.

Admissibility under Uniform Business Records as Evidence Act or similar statute of medical report made by consulting physician to treating physician, 69 A.L.R.3d 104.

Admissibility of testimony of coroner or mortician as to cause of death in homicide prosecution, 71 A.L.R.3d 1265.

Admissibility, as res gestae, of accusatory utterances made by homicide victim before the act, 74 A.L.R.3d 963.

Admissibility in state court proceedings of police report as business records, 77 A.L.R.3d 115.

Fact that rape victim's complaint or statement was made in response to questions as affecting res gestae character, 80 A.L.R.3d 369.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

Discovery of hospital's internal records or communications as to qualifications or evaluations of individual physician, 81 A.L.R.3d 944.

Refreshment of recollection by use of memoranda or other writings, 82 A.L.R.2d 473.

Time element as affecting admissibility of statement or complaint made by victim of sex crime as res gestae, spontaneous exclamation, or excited utterance, 89 A.L.R.3d 102.

Admissibility in personal injury action of hospital or other medical bill which includes expenses for treatment of condition unrelated to injury, 89 A.L.R.3d 1012.

Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442; 77 A.L.R.4th 927.

Evidence: admissibility of memorandum of telephone conversation, 94 A.L.R.3d 975.

Business records: authentication and verification of bills and invoices under Rule 803(6) of the uniform rules of evidence, 1 A.L.R.4th 316.

Admissibility of computerized private business records, 7 A.L.R.4th 8.

Admissibility and weight of extrajudicial or pretrial identification where witness was unable or failed to make in-court identification, 29 A.L.R.4th 104.

Fence as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.

Modern status of rule regarding necessity for corroboration of victim's testimony in prosecution for sexual offense, 31 A.L.R.4th 120.

Admissibility in state court proceedings of police reports under official record exception to hearsay rule, 31 A.L.R.4th 913.

Fact that witness undergoes hypnotic examination as affecting admissibility of testimony in civil case, 31 A.L.R.4th 1239.

Necessity, in criminal prosecution, of independent evidence of principal act to allow admission, under res gestae or excited utterance exception to hearsay rule, of statement made at time of, or subsequent to, principal act, 38 A.L.R.4th 1237.

Admissibility of school records under hearsay exceptions, 57 A.L.R.4th 1111.

Admissibility of hypnotically refreshed or enhanced testimony, 77 A.L.R.4th 927.

Admissibility of evidence of reputation as to land boundaries or customs affecting land, under Rule 803(20) of Uniform Rules of Evidence and similar formulations, 79 A.L.R.4th 1044.

Admissibility of government factfinding in products liability actions, 29 A.L.R.5th 534.

Admissibility of statements made for purposes of medical diagnosis or treatment as hearsay exception under Rule 803(4) of the Uniform Rules of Evidence, 38 A.L.R.5th 433.

Admissibility and weight of fingerprint evidence obtained or visualized by chemical, laser, and digitally enhanced imaging processes, 110 A.L.R.5th 213.

Admissibility in state court proceedings of police reports as business records, 111 A.L.R.5th 1.

Admissibility in state court proceedings of police reports under official record exception to hearsay rule, 112 A.L.R.5th 621.

When is hearsay statement made to 9-1-1 operator admissible as "present sense impression" under Uniform Rules of Evidence 803(1) or similar state rule, 125 A.L.R.5th 357.

Admissibility of ancient documents as hearsay exception under Rule 803(16) of Federal Rules of Evidence, 186 A.L.R. Fed. 485.

Admissibility of summaries or charts of writings, recordings, or photographs under Rule 1006 of Federal Rules of Evidence, 198 A.L.R. Fed. 427.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through interpreter - state cases, 97 A.L.R.6th 567.

Hearsay objections to admission of text messages or testimony thereof, 10 A.L.R.7th 4.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter - federal cases, 91 A.L.R. Fed. 2d 187.

Admissibility of statement under Fed. R. Evid. 803(5), providing for recorded-recollection exception to hearsay rule, 93 A.L.R. Fed. 2d 79.