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 ease 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 *88 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 eases, 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, s'et 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 ease insist that the interpretation put upon the Chípese 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 Tong 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:

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

Mr. P. 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:

He stated that the word “karldm” 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 only witness in the case who substantiated the translations contained in the indictment was the witness S. K. Lau. He had furnished the district attorney with the translation interpreted in the indictment as a basis for the indictment, and, on being shown, the English translation he had previously furnished the district attorney, stated it was a’ correct translation. On cross-examination, however, when he gave an extemporaneous and literal translation, he gave quite a dif-. ferent translation than that contained in the indictment, or in the English translation he had already testified to. His testimony was as follows:

In this connection it will be observed that the word “use” is not contained in the translation set out in the indictment.

The interpretation put upon the writing by this witness was not material. The meaning of the letter must be determined from its context, and the court so instructed the jury, and so ruled in connection with the hereinabove quoted testimony of S. K. Lau. The statement of this witness that the 'word “family” meant “wife” to him is an illustration of the extent to which he was willing to go to put an evil interpretation upon the letter. It is obvious that the letter was not actually intended to solicit an assignation for two reasons: In the first place, the letter gives no facilities for an answer; it was posted at a time when an answer was impossible before the night referred to; and, second, Siu Chin Tai for more than two years had been an enemy of the appellant. It is obvious that, with this feeling of bitter hostility between them, to which they both testified, there is no expectation of a favorable reply to the proposition contained in the letter, if that proposition is correctly interpreted in the indictment. If the letter was written by the appellant, it was probably intended to insult his enemy rather than to provoke lewd and lascivious thoughts. The obscenity of the letter, however, is to be judged, not by the actual effect upon the recipient, but upon the character of the letter itself. One of the fundamental difficulties in this ease is that many of the witnesses were Chinese. Their testimony was interpreted to the court and jury by the Chinese interpreter.

We must either accept his translation of the letter sent through the mail and upon which the indictment is based, or we must conclude that he was so far incompetent as an interpreter that his translation of the testimony of the witnesses concerning the mean'ing and character of the letter is also erroneous; indeed, it is clear that the case could not- be tried properly without a competent interpreter. The fact that he was used in the trial without opposition or objection would justify us in accepting his interpretation of the letter. ’ The letter as interpreted by him is not only in complete variance with the *91 translation in the indictment, but is of sueh a nature that the verdict of the jury based thereon could not he sustained on the theory that the letter was per se obscene. The instructions by the court to the jury left the matter entirely to the judgment of the jury, aside from the general instructions concerning the presumption of innocence and the weight of evidence as follows:

The jury were thus left to work out as best they could the proper translation of the Uhinese letter, and then to determine whether or not it was an obscene letter. Under sueh circumstances, the testimony of the complaining witness, interpreting the word “family” to mean “wife,” and his personal opinion as to the significance of the letter, must have led the jury to its verdict of guilty. It should he said, however, that the witness S. K. Lau insisted that the interpretation in the indictment was the only reasonable way of presenting in English the meaning of the Chinese.

There is still another difficulty in the ease, namely, that the appellant was connected with the mailing of a letter solely by evidence as to his handwriting.

The appellant assigns the conduct of the judge who tried the case as so biased and prejudiced as to prevent a fair trial, and seeks a reversal on that ground; but the assignment is based on rulings and remarks by the trial judge during the trial, duly excepted to, and thus reviewable on appeal. We will proceed to a consideration of some of these rulings, which relate in the main to a restriction of cross-examination as to some witnesses, and to an adverse ruling as to the competency of one of the appellant’s witnesses tendered as a handwriting expert. Both these matters are so largely in the discretion of the trial judge that they can only he reviewed where there has been a manifest abuse of discretion. The appellant desired to cross-examine the complaining witness as to the circumstances and eauses of his enmity, and the court sustained an objection thereto, on the ground that, as the hostility was admitted, the reasons for their hostility were immaterial. There is respectable authority on both sides of the proposition as to the admissibility of sueh testimony. Stewart v. Kindel, 15 Colo. 539 , 25 P. 990 ; State v. Collins, 33 Kan. 77 , 5 P. 368 . Contra, Stone v. Tupper, 58 Vt. 409 ; 5 A. 387 ; Langhorne v. Commonwealth, 76 Va. 1012 ; Kellogg v. Nelson, 5 Wis. 125 ; 40 Cyc. 2661, 2559.

It is 'sufficient for the purposes of this appeal to say that the appellant was permitted to show on cross-examination, not only the ultimate fact of the hostility of the complaining witness to him, hut also that the difficulty between them grew out of political differences developed in an association to which both belonged; that both were national committeemen for the Chinese Cantonese government; and that the complaining witness had sued the appellant twice. Furthermore, the appellant had objected to evidence as to who started the difficulty or “argument,” when asked by the prosecution on direct examination. Under these circumstances it was not error to sustain objections to a further development of the quarrel between the two, or to sustain an objection to a question calculated to elicit the fact that the appellant had started to form a rival newspaper.

We may dismiss the assignment of error and the exception reserved to the sustaining of objections to the qualification of a professional engraver to testify as to Chinese handwriting with the observation that there was no abuse of discretion in excluding the evidence of this witness.

The question of variance between the pleadings and proof is not specifically raised by the assignments of error. It is, however, embraced within the second assignment, to the effect that the evidence as a whole was insufficient for a finding by the jury of *92 the guilt of the defendant. Without a motion for a directed verdict, this point is not properly raised; but the proof is so manifestly insufficient that the interests of justice require us to consider the matter, notwithstanding this defect in the record. Gazzera v. United States (C. C. A.) 7 F.(2d) 467 ; Bilboa v. United States (C. C. A.) 287 F. 125 ; Wiborg v. United States, 163 U. S. 632 , 16 S. Ct. 1127 , 41 L. Ed. 289 ; Crawford v. United States, 212 U. S. 183, 193 , 29 S. Ct. 269 , 53 L. Ed. 465 , 15 Ann. Cas. 392.

Judgment reversed.