Lau Fook Kau v. United States

• Decision Date: 29 July 1929
• Docket Number: No. 5591.,5591.
• Citation: 34 F.2d 86
• Parties: LAU FOOK KAU v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

34 F.2d 86 (1929)

LAU FOOK KAU v. UNITED STATES.

No. 5591.

Circuit Court of Appeals, Ninth Circuit.

July 29, 1929.

Russell P. Tyler, of San Francisco, Cal., for appellant.

Sanford B. D. Wood, U. S. Atty., and Charles H. Hogg, Asst. U. S. Atty., both of Honolulu, Hawaii, and George J. Hatfield, U. S. Atty., and George M. Naus, Asst. U. S. Atty., both of San Francisco, Cal., for the United States.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

The appellant was convicted of sending an obscene letter through the United States mails. The portion of the letter charged to be obscene is set forth in English in the indictment. It was directed to Post Office Box No. 2034, Honolulu, T. H. This post office box was used by the Liberty News, a newspaper of which Siu Chin Tai was president. The letter was anonymous, and contained no address for reply. The allegation in the indictment alleged that "said letter was obscene, lewd, and lascivious, in that said letter contained the following language: `I also ask whether the wife of Siu Chin Tai can accommodate us to-night throughout the night. If willing we will compensate her five dollars ($5.00) American money for one time. Altogether there are twelve (12) of us who can take turn twelve (12) times; total receipts sixty dollars ($60.00).'"

A letter attempting to arrange such an assignation is clearly within the statute prohibiting the mailing of obscene, lewd and lascivious matter. U. S. v. Martin (D. C.) 50 F. 918; Parish v. U. S. (C. C. A. 4) 247 F. 40; U. S. v. Moore (D. C.) 129 F. 159, both cited with approval in Krause v. U. S. (C. C. A. 4th (29 F.(2d) 248, 252.

It appears from an examination of the entire case that the appellant was convicted for sending a letter entirely different in phraseology from that contained in the indictment. In the first place, there was a variance between the allegation and the proof, in that it was alleged in the indictment that the letter was in English, whereas the only proof was of a letter written entirely in Chinese. The proper method of pleading would be either to set out the Chinese characters in the letter and to allege the English translation, or, as has been held in California in some Chinese cases, to allege that the letter was in Chinese and also allege the English translation of the Chinese letter. This was held in a forgery case. People v. Ah Woo, 28 Cal. 206. See, also, Stevens v. Kobayshi, 20 Cal. App. 153, 128 P. 419; People v. Ah Sum, 92 Cal. 648, 28 P. 680, in which it was held that a lottery ticket in Chinese, set up in the indictment, should have been translated in the indictment. A late California case, People v. Rizotto, 30 Cal. App. 616, 159 P. 199, held that there was a variance between pleading and proof, where the contents of a threatening letter were alleged in English and proof showed a letter written in Italian. To the same effect, see Blaser v. Krattiger, 99 Or. 392, 398, 195 P. 359; Grotius v. Ross, 24 Ind. App. 543, 57 N. E. 46; Kunz v. Hartwig, 151 Mo. App. 94, 131 S. W. 721, par. 4, page 723; Kerschbaugher v. Slusser, 12 Ind. 453.

The appellant did not at any time during the trial raise the question as to the variance between the allegation that the letter was in English and the proof offered was of a letter in Chinese. Without such objection this variance could not be taken advantage of by the appellant on appeal, but the appellant did throughout the case insist that the interpretation put upon the Chinese by the allegation of the indictment was entirely erroneous. The evidence, without any conflict whatever, establishes the fact that two Chinese symbols used in the letter and interpreted in the indictment as "wife" was the Chinese word "karkim." The testimony of all the witnesses is to the effect that these words or symbols mean "family." The testimony also, without conflict, established the fact that there is no word in the Chinese letter which is or corresponds to the pronoun "her," used in the second sentence of the translation. If we substitute for the word "wife" in the translation the word "family" and strike out the word "her," the character of the letter is entirely changed.

The Chinese interpreter, who translated into English the Chinese testimony given during the trial, translated the letter as follows: "Siu Chin Tai and family. To help me one night, to-night. If you are willing to help us out at five dollars one time gold, United States gold, one time. We got twelve men. We could use twelve times. That is sixty dollars." This translation was placed before the court and jury by having the witness, Siu Chin Tai, read the letter in Chinese and the court interpreter translate it into English.

In similar fashion the witness Yong Tai Tong, whose testimony was translated to the court and jury by the same Chinese interpreter who interpreted the testimony of Siu Chin Tai, was asked to tell the meaning in Chinese to the interpreter, the interpreter to translate the meaning of the letter in English as given in Chinese by the witness. The witness did not understand English. Counsel for the defendant stated, "There are words there, and he understands the meaning, and he can give them to the interpreter." To this suggestion the court replied, after argument, "Well, let's go ahead and see how far this thing goes."

The witness talks in Chinese. The interpreter begins to interpret as follows:

"A. We all ask —" Whereupon the court interrupts: "That is what you say, Mr. Interpreter. Now I want to know what you say.

"A. This thing altogether ask, all as one ask Siu Chin Tai's family, home and people living around there, to-night, to-night possible, help us, a bunch, one night. If you willing we give you United States money five dollars one time. We have twelve men altogether. Can you help us? Each one time. twelve times, total to sixty dollars."

The court then interrogated the witness, through the interpreter, as follows:

"Q. You have read that off there. What is it, five dollars for what — dancing at a Chinese dance, or singing a Chinese song, or standing on your head, what is it about? What is the five dollars for, and the sixty dollars, what does it mean? A. Nothing at all.

"Q. It means nothing at all, is that it? A. Yes.

"Q. In other words, it may mean inviting Siu Chin Tai's family, wife and family, to go on an automobile ride with twelve men, one every time, five dollars apiece; that is, according to your idea? Is that right? A. It does not say `automobile' or anything.

"Q. Does that mean, is that an invitation for Siu Chin Tai's wife to indulge in unlawful sexual intercourse or relations for five dollars a time? A. Simply says `to help us out.'

"Q. Does that mean help you out sexually, or what? A. It does not say that.

"Q. Could it mean that? A. It has not got those two words there.

"Q. Does it mean anything? A. It does not mention any sexual intercourse or any idea about it; I could not say offhand.

"A Juror: "If you got a letter like that, the same wording that is on that paper there, from somebody else, would it make you mad, or wouldn't it make you mad? A. No; I would not think anything about it.

"Q. You would think it was a perfectly proper letter, one that would ordinarily go through the mail from one friend to another? A. Yes.

"Q. What would he understand that it meant? A. I do not understand what the contents is.

"Q. You would think that the man who wrote it was a little bit off? A. Yes, I think he is crazy.

"The Court: Q. Suppose it is a fact that he did not sign his name; would that help you out in figuring out what he meant by it? A. Yes.

"Q. All right, now there is no name there, is there? A. No, not on this side.

"Q. On that side there is no name. Would that help you out as to what he meant by writing that `five dollars one time, twelve people sixty dollars'? A. Because really I do not know what this man is driving at.

"Q. You don't know what the letter is driving at? A. Yes; there is nothing there to say anything about it.

"Mr. Le Baron: Q. One of the reasons that the letter is such a mystery, and hard to tell what it is driving at, is because there is no subject-matter; is that so? A. Yes.

Mr. F. E. Stafford, called as a witness by the defendant, a teacher of the Chinese language in the Honolulu high school, who had been studying Chinese for 18 years and had lived in China for 6 years and studied the Chinese language in a regular Chinese language school, where business men and missionaries studied the language, interpreted the letter as follows:

"Also ask Siu Chin Tai, your family, tonight, can possibly accommodate us for one night or not. If so and you are willing to promise, our price is in American money five dollars one time. We, altogether, are twelve persons. We can take turns, twelve times, making a total obtainable of sixty dollars."

He stated that the word "karkim" was translated in all the dictionaries that he looked up as "wife and family," and stated that the usual meaning of the word was "family." During the cross-examination the court interrogated the witness as follows:

"The Court: Will you hold that document in your hand and refer to the part you translated there, and see if you find this in there: `I also ask whether the wife of Siu Chin Tai can accommodate us to-night throughout the night.' Can you find that there? A. It does not say that.

"Q. Can it be translated to that extent? Can that meaning be given to it? `I also ask whether the wife of Siu Chin Tai can accommodate us to-night'? A. I think that you would be stretching the translation to give that to it.

"Q. The context — you said the word `accommodate' is there; taking that whole document, could you translate that document so it would be this: `I also ask whether the wife of Siu Chin Tai can accommodate us to-night throughout the night.' A. I don't think I can qualify as a judge of these inner meanings, the secondary meaning, rather. I know the...