dissenting.
The state offered and the court received a properly certified copy of a record of the Department of Motor Vehicles. The record was entitled, "Order of Suspension,” and it recited in part: "It is Hereby Ordered pursuant to ORS * * * [Dorothy Rachel Harris’s] nonresident’s operating privilege * * * is suspended effective 08-17-77 for an indefinite period.” Below the copy of the record, the certifier further recited, "and that our records reveal this order was in full effect on 4-30-yg ‡ ^ ‡ ”
I am of the opinion that it is reasonable to interpret the certifier’s statement, "our records reveal this order was in full effect on 4-30-78,” as a statement to the effect that there is no entry that defendant’s license was reinstated.
The defendant objected only to that part of the exhibit stating, "our records reveal this order was in full effect on 4-30-78.”
Based upon a statement made in the opinion in Finchum v. Lyons, 247 Or 255, 262-263, 428 P2d 890 (1967), the state contends that this hearsay statement is admissible because of an exception to the hearsay rule codified in ORS 43.370. In my opinion this statement in Finchum was incorrect and ORS 43.370 has nothing to do with the admissibility into evidence of entries in official records. I am unable to determine whether the majority decides that ORS 43.370 is or is not applicable.
The substance of what is now ORS 43.370 was contained in Deady’s Civil Code, § 735, Title V, ch 8. (1862). This early date makes it doubtful that it was intended as an exception to the hearsay rule. ORS 43.370 provides:
"Entries in public or other official records, including books, data processing devices and computers, made by a public officer of this state or of the United States in the performance of his duty or by another *725person in performance of a duty specially enjoined by the law of either, are primary evidence of the facts stated.”
The statute does not concern the admissibility of the entries. It does not address how entries from official records are to be proved. It concerns the evidentiary value of entries in official records whether the entry itself or a certified copy of the entry is offered into evidence. ORS 43.370 says the entry is "primary evidence.”
Section 664 of ch VTII of Deady’s Code (now ORS 41.090) provided:
"Primary evidence is that, which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. For example; the certificate of a recording officer is primary evidence of a record; but it may be afterwards overcome upon proof that there is no such record.”
No other statutes govern the admissibility of this official record except ORS 43.330, relating to authentication, which is not in issue. There being no other statute, the admissibility of the certificate is to be determined by this court. In Timber Access Ind. v. U.S. Plywood, 263 Or 509,503 P2d 482 (1972), the objection was made that the hearsay evidence received should not have been received because it was not within any statutory exception to the hearsay rule. We stated:
<<* * * Although defendant does not say so, the implication might be that if the statutes do not provide for the testimony’s admissibility, it is not admissible. The contrary is true. In the face of a similar contention, which included ORS 41.850, we said in King v. Ind. Acc. Com., 211 Or 40, 309 P2d 159, 315 P2d 148, 318 P2d 272 (1957), as follows:
" '* * * Possibly the Shepard and Pratt opinions were remiss in overlooking the fact that the rules governing the admissibility of a deceased’s declarations are broader than the sections of our laws which they cited * * *.’ 211 Or at 64.” 263 Or at 522.
There is a well-recognized judicial exception to the judicially-created hearsay rule. The exception makes *726admissible authenticated copies of official records. Finchum v. Lyons, supra, 247 Or at 262. This exception is consistent with the reasoning behind the rule excluding hearsay evidence. The reason for the exclusion is that hearsay evidence is untrustworthy because the declarant’s veracity and accuracy cannot be tested by cross- examination. Sheedy v. Stall, 255 Or 594, 596, 468 P2d 529 (1970). The circumstances surrounding the keeping of official records negate the necessity of the right of cross-examination to insure the accuracy of the evidence.
" 'This exception to the hearsay rule is based on the reliability, trustworthiness, and authenticity which usually attend public records and reports made and kept in the performance of official functions. It is predicated on the assumption that public officials perform their dutues and are without motive to falsify, and that public inspection, to which such records are subject, will disclose inaccuracies. The purpose of the rule is to dispense with the appearance in court of public officials to prove routine matters.’ ” Finchum v. Lyons, supra, 247 Or at 262.
While the common law recognized that properly authenticated copies of entries in official records are admissible as an exception to the hearsay rule, the older decisions would not admit authenticated copies stating there were no entries. 5 Wigmore, Evidence § 1678(7), 867-868 (1974). Fortunately, this court never adopted that ill-conceived distinction. Wigmore commented:
"* * * Whether a court would go so far in a given instance as to require a copy of the entire group of entries or integral series of documents was not entirely settled; but it was certain that the only evidence receivable would be the testimony on the stand of one who had made a search (usually of the custodian himself), and that the custodian’s certificate of due search and inability to find was not receivable under the present exception. But this rule, too, partook of an excess of formality, and imposed inconvenience and expense where it was unnecessary. It will someday be reckoned as one of the most stupid instances of legal *727pedantry in our annals. The certificate of a custodian that he has diligently searched for a document or an entry of a specific tenor and has been unable to find it ought to be usually as satisfactory for evidencing its nonexistence in his office as his testimony on the stand to this effect would be and accordingly by statute or comb rule custodians’ certificates of this sort have been expressly made admissible.” (Footnotes omitted.)
In the present case the hearsay statement contained in the certificate that the defendant’s license was suspended indefinitely is unquestionably admissible; the statement to the effect that there is no entry in the Division’s records that the suspension has been terminated likewise should be admissible.
The majority cites McIntosh Livestock Co. v. Buffington, 116 Or 399, 241 P 393 (1925), for the proposition that conclusions the certifier draws from the official records are not admissible. I do not quarrel with this general proposition; however, "conclusions” should not be too broadly applied. As stated, the certificate in this case, "our records reveal this order was in full effect on 4-30-78,” was in effect a statement that there is no entry in the Division’s records that the license suspension has been terminated.
This court’s views on what should not be considered "conclusions” are shown by another portion of McIntosh. The Oregon Corporation Commissioner made a certification stating:
" 'I further certify that McIntosh Livestock Company has filed all annual reports up to and including June 30,1924, and has paid all annual license fees up to and including June 30, 1925, as required by the statutes of the State of Oregon.’ ” 116 Or at 406.
We held the certificate admissible.
In my opinion the entire certificate in this case is admissible; therefore, apart from any presumption, there is proof that the defendant’s license was suspended on the date she was apprehended.