Horne v. State

George K. Cracraft, Chief Judge,

dissenting. I respectfully but strongly dissent from the majority opinion reversing this conviction. I thoroughly agree with the majority that under the ruling in Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), testimony of a physician with regard to diagnosis and treatment is not within the privilege asserted. If the abstract furnished me had contained evidence that the trial court had excluded unprivileged relevant testimony such as that cited in the majority opinion I might agree with their conclusion. The pretrial hearing referred to in the majority opinion appears in the appellant’s abstract in two sentences quoting Dr. Stevens as admitting he had treated the witness in November 1982 and refusing to testify as to her condition based upon the physician-client privilege. Nothing else with regard to Dr. Stevens appears in the abstract of that proceeding and at no“ place in the entire abstract furnished me was there a proffer of what Dr. Stevens would have said. It is a well settled rule that the exclusion of evidence is not reversible error where there is no proffer of what that evidence would have been. Simmons v. McCollum, 269 Ark., 811, 601 S.W.2d 232 (Ark. App. 1980).

The substance of the testimony and rulings of the court on which the majority rely appears in appellant’s printed argument with only scattered transcript page references in some but not all instances. In reaching its result the majority have, in my opinion, departed from a well established rule not only of our courts but of almost universal application that an appellant must demonstrate error from his abstract of the record. On appeal the abstract of the record constitutes the record, and the appellate court considers only that which is contained in the abstract. Williams v. Owen, 247 Ark. 42, 444 S.W.2d 237 (1969); Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W.2d 949 (1979); Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979); Smith v. State, 278 Ark. 462, 648 S.W.2d 792 (1983). It has been often stated that where the appellant’s abstract does not contain the testimony on which he bases his argument our practice is to rely on the record only if it shows the trial court’s decision should be affirmed on a particular point, but we do not explore the record for prejudicial error if none is shown to us. Smith v. State, supra. The mere scattering of transcript references throughout appellant’s argument is not a substitute for a proper abstract. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). The reason for such a rule is obvious. It is to permit deletion of those parts of the proceeding which have no bearing on the issues and to bring to the court’s attention only those parts of the proceedings that do. Our court has often pointed out the impossibility of all appellate judges reading a single transcript. I was not able to do so here and for that reason I was wholly unable to follow the arguments of either the appellant in his brief or the presentation of the case in conference.