United States v. Larry Ware , 247 F.2d 698 ( 1957 )

SCHNACKENBERG, Circuit Judge

(concurring).

The result reached by Judge Swaim is, in my opinion, right. I believe that, with one exception, the grounds stated are also right. I find myself unable to agree with the proposition that the memoranda made by the chemist were admissible under either 28 U.S.C.A. § 1732 or § 1733. I concede that the entries made by the chemist were admissible to prove the fact that he made analyses of the substances purchased from the defendant. However I cannot agree that under either § 1732 or § 1733 what the chemist ascertained in making these analyses is proved by the entries in question which in effect state that the substances analyzed were heroin. Inasmuch as the chemist who made the analyses and the entries in question failed to testify and submit himself to cross-examination, the defendant at the trial was helpless because he had no way to determine whether proper methods of analysis were used and were free from error in their execution. There has been no case cited to us so extending the effect of § 1732 or § 1733.

On the other hand, in Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19, certain slides were held to have been properly received in evidence where the prosecution proved by the testimony of a hospital interne that he had made smears on a slide and that the slide produced in court was of the type used for making smears at said hospital, that a slide shown him bore the letters of the patient’s last name, and the date “8-11-51”, although he could not say definitely that these were the slides in question. A bacteriologist then testified that these slides were received in the laboratory in accordance with established hospital procedures, that he made a microscopic examination of substances thereon, and he testified as to what that result was, and that the result of the examination was placed on the slides. Testimony of the interne and the bacteriologist demonstrated that the procedures followed were those regularly used by the hospital to make and keep a record of examinations of this kind. The court, 211 F.2d at page 22, said:

“Since Dr. Mangum was unable to say there had been sexual intercourse of the child about the time of the alleged assault, proof that she had been carnally assaulted rested substantially on the bacteriologist’s testimony regarding the presence of sperm. That testimony, in turn, rested solely on the slides which were ultimately admitted in evidence over appellant’s objection that they were not sufficiently identified by Dr. Mangum as those upon which he placed the smears taken from the child.”

The court distinguished the case from Novak v. District of Columbia, 82 U.S. App.D.C. 95, 160 F.2d 588.

That entries regularly made as a routine matter in laboratory notebooks cannot properly be held to prove themselves merely by identification by those who made the reports, is held in Teter v. Kearby, 169 F.2d 808, at page 816, 36 C.C.P.A., Patents, 706, where the court said:

“We do not find in the record that there is adequate evidence to prove that the type of fuel called for by the counts was produced. The tests necessary to show such production were not adequately proved. While there are data sheets in evidence bearing the signatures of those who conducted the tests, they were not called to testify; and we are unable to hold that there is any reasonable and certain testimony to establish that the process in issue here was carried out. The data sheets of themselves, not having been properly proved as to the accuracy of their contents, can not be held to be evidence of such contents.

“It is contended by appellant that the laboratory notebooks intended to support the testimony of appellant are admissible as evidence of performance of the acts recorded therein under the express provisions •of the U.S. Code, title 28, Sec. 695, 28 U.S.C.A. § 695.¹ * * *

“We are of opinion that the code provision cited by appellant was never intended to embrace such records as are here before us. While it may be true that in the research department of appellant’s company it may be a matter of ordinary business to file such reports, nevertheless the contents thereof can not be considered legally sufficient even though they are routine with respect to their contents. We do not think that the facts or operations related in those reports can be properly held to prove themselves merely by identification by those who made the reports. * * * ”

'To the same effect, see Hartzog v. United States, 4 Cir., 217 F.2d 706.

I can see no objection to applying § 1732 to an entry of a fact which can be ascertained by mere observation by the person who makes the entry, such as the sale of a certain quantity of coal by a retail dealer, or the sale of a loaf of bread by a grocer. However, as to an entry made by a chemist indicating that he had made an analysis of a substance, while I believe that § 1732 bestows admissibility on the entry as tending to prove that the chemist had made an analysis, I do not believe that the method of, or result reached in, the analysis as indicated by the entry, can be proved by mere production of the record of the entry. The testimony of the chemist is necessary. Such testimony was not presented by the government in the case at bar.