The admission of the pipe samples (Defendants' Exhibits 3, 4 and 5) were erroneous and prejudicial since they were not shown to be fair or representative samples of the whole. Trego v. Arave, 20 Idaho 38, 116 P. 119, 35 L.R.A., N.S., 1021; Piggly-Wiggly Stores v. Lowenstein, 197 Ind. 62, 147 N.E. 771, 776; E.K. Hardison Seed Co. v. Jones, 6 Cir., 149 F.2d 252; Yohalem v. Matatone, 225 Ill. App. 221; Brown v. Leach, 11 Browne 364, 107 Mass. 364; 32 C.J.S., Evidence, § 607, pages 458, 459; Wigmore on Evidence, Vol. 1, pages 778, 779, Sec. 439. The proper method for valuing the spring as a part of the system where a reproduction cost theory is being used is the market value of such spring in its raw state. U.S. v. Boston C. C. N.Y. Canal Co., 1 Cir., 271 F. 877.
Rule 26, Fed.Rules Crim. Proc., 18 U.S.C.A. For purposes of applying the rule no difference has been recognized between documents of federal, state and county governments. See Hedrick v. Hughes, supra; Sandy White v. United States, 164 U.S. 100, 17 S.Ct. 38, 41 L.Ed. 365; E.K. Hardison Seed Co. v. Jones, 6 Cir., 149 F.2d 252; Franklin v. Skelly Oil Co., 10 Cir., 141 F.2d 568, 153 A.L.R. 156; Gilbert v. Gulf Oil Corp., 4 Cir., 175 F.2d 705; Rollins v. Board of Commissioners, 8 Cir., 90 F. 575. Generally stated, the rule is that all documents prepared by public officials pursuant to a duty imposed by law or required by the nature of their offices are admissible as proof of the facts stated therein.
Evidence based upon statistical sampling has particularly received court approval in cases involving government inspection of large quantities of goods. See United States v. 449 Cases Containing Tomato Paste, 212 F.2d 567 (2nd Cir. 1954) (court approved inspector's testing of samples, rather than requiring the opening of all cases); E.K. Hardison Seed Co. v. Jones, 149 F.2d 252 (6th Cir. 1945);United States v. 43 1/2 Gross Rubber Prophylactics, 65 F. Supp. 534 (D.Minn. 1946), aff'd, 159 F.2d 881 (8th Cir. 1947) (court determined that shipment was misbranded based upon evidence of a sample which indicated a potential of 1,500 defective prophylactics in shipment). The Court made the following observation regarding sampling:
In addition, and depending on how the facts are developed on remand, we are troubled by the prospect that the assertion of trade secret protection may violate the Federal Seed Act, 7 U.S.C. §§ 1551 et seq. "The Federal Seed Act makes it unlawful for any person to transport or to deliver for transportation in interstate commerce agricultural seeds with untruthful labels." E.K. Hardison Seed Co. v. Jones, 149 F.2d 252, 256 (6th Cir. 1945). Part of the labeling requirement is that when variety names are used, all sellers use the same variety name.
We think there can be no doubt that the exhibits or memoranda made by the chemist were admissible as having been made in the regular course of business and that it was the regular course of business to make such memoranda or record of the findings of the chemist's analyses of the substances purchased from the defendant. Cf. Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19, certiorari denied 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140; E.K. Hardison Seed Co. v. Jones, 6 Cir., 149 F.2d 252; and see Rennicke v. United States, 8 Cir., 207 F.2d 429. These exhibits also satisfy the underlying reason for this exception to the hearsay rule and the admission of this class of statements under section 1732 — the probability of their trustworthiness.
The stipulation, however, was for all practical purposes, equivalent to the formal introduction of the roll of cloth in evidence and was made in order to obviate the necessity of bringing the bulky material into the Court Room, even though the prosecution had offered to do so. It is true that in order to be admissible, a sample must be fairly representative of the entire quantity, E.K. Hardison Seed Co. v. Jones, 6 Cir., 149 F.2d 252; Pennsylvania R.R. Co. v. Fox London, Inc., 2 Cir., 93 F.2d 669. The trial judge, however, sufficiently protected the defendant's rights in this regard by the following instruction to the jury: "Gentlement of the jury, the roll of cloth that has been brought in before you, it is agreed between the parties, is one of the rolls of cloth that counsel yesterday or day before stipulated and agreed were in the corridor just outside the Court Room and is one of the rolls involved in this transaction described in this case.
The prerequisites necessary to the admission in evidence of samples are that the mass should be substantially uniform with reference to the quality in question and that the sample portion should be of such a nature as to be fairly representative." Rite Fabrics, Inc. v. Stafford-Higgins Co., 366 F. Supp. 1, 11 (S.D.N.Y. 1973) quoting E.K. Hardison Seed Co. v. Jones, 149 F.2d 252, 256 (6th Cir. 1945). See also Otoe Co. Bank v. Delany, 88 F.2d 238 (8th Cir. 1937); Leonard v. Uniroyal, Inc., 765 F.2d 560, 567 (6th Cir. 1985); Lapwai v. Alligier, 69 Idaho 397 (1949).
Otoe Co. Bank v. Delany, 88 F.2d 238 (8th Cir. 1937); Wigmore, Vol. II, 3rd Ed., p. 421, § 439 (1940). In a later case, E. K. Hardison Seed Co. v. Jones, 149 F.2d 252 (6th Cir. 1945), the Court of Appeals also permitted the introduction of samples to show quality or condition of an entire lot of see. The court stated: "Human experience has taught us that one thing concurrently may be associated with another.
The record in question according to the witness Drew, who assisted in the preparation of the report, was prepared by representatives of the United States Corps of Engineers and submitted to the Congress. Defendant cites E. K. Hardison Seed Co. v. Jones, 6 Cir., 1945, 149 F.2d 252, 256, where that Court held: ‘ Title 7 U.S.C.A. § 1607 authorizes the Administrator of the Federal Seed Act to cooperate with any State or its department agencies in carrying out the provisions of the Act.
It is urged that the report is admissible under 28 U.S.C. § 1732, generally referred to as the Federal Shop Book Rule. While Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 183 F.2d 467, 472, admitted in evidence a report from the Bureau of Mines to the effect that an explosion was caused by faulty steel, it is thought that the report was admitted because Congress had charged the Bureau with the responsibility of investigating the causes of such disasters through experts who presumedly had first hand knowledge of the facts stated in the report. To the same effect are E.K. Hardison Seed Co. v. Jones, 6 Cir., 149 F.2d 252, and Hunter v. Derby Foods, 2 Cir., 110 F.2d 970, 133 A.L.R. 255. The report prepared and filed by the Commanding Officer is not the result of what he actually saw as is clearly indicated from his own testimony, but contains data and conclusions which must have been given to him by the witness, Grissette. As such, the report is inadmissible. 28 Am.Jur., "Evidence", p. 866; Long v. United States, 4 Cir., 59 F.2d C02; Gilbert v. Gulf Oil Corp., 4 Cir., 175 F.2d 705; Olender v. United States, 9 Cir., 210 F.2d 795; Levin v. Green, D.C.Mun.App., 106 A.2d 136. Hospital records and other clerical entries made contemporaneously with the event by a person charged with the duty of maintaining the records are properly admitted if they do not extend to matters of opinion and similar matters. Schering Corp. v. Marzall, D.C., 101 F. Supp. 571. Where opinions are expressed in such records they may be deleted and the balance of the report admitted.