Lau Fook Kau v. United States

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…

(concurring). I would have great difficulty in agreeing to a reversal upon the sole ground assigned by the majority. While perhaps the distinction is not highly material, it is to be noted the indictment does not in terms allege that the letter mailed was in English, but only that it contained certain language which as set out is English, but which as later appeared was intended to be a translation of the Chinese. Had the objection of variance been seasonably interposed, it should have been sustained; but at no time was it intimated in the court below, nor has it been urged here. Defendant undoubtedly understood that the language as set out was intended only as a translation, for he manifested no surprise when the original was produced. The ease was tried from the beginning upon the letter as written in the Chinese language, and undoubtedly the trial took the same course that it would have taken, and the evidence was the same as it would have been, had the letter been pleaded in one of the forms suggested as being proper; I am, therefore, unable to see how the defective pleading operated to deprive defendant of a fair trial, and it would hardly be contended that the record would…