The opinion
DIETRICH, Circuit Judge
(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 fail to support a plea of once in jeopardy in case another indictment should be brought. As to the question whether the indictment translation is the true meaning of the instrument, that would seem to be an issue of fact, which was correctly submitted to the jury. I am unable to see how it can be held that a variance as a matter of law was thus made out.
The more serious consideration to me arises out of the attitude of the jrial court, and the comments made from time to time in the presence of the jury touching the meaning of the letter. Admittedly, it is a strange ' document, couched in terms highly ambiguous and difficult to account for upon any theory of the writer’s complete rationality. The issue should have been submitted to the jury with extreme care. But in view of what occurred, and what was said from the bench, I am unable to escape the conclusion that the jury at a very early stage of the trial was convinced that the judge strongly leaned to the construction expressed in the indictment translation. Impressions thus created cannot always be obliterated by a formal instruction advising the jurors that they are not bound by the views of the judge upon any question of fact. Here not only was no such instruction given, but the jurors were not even informed that they alone must assume the responsibility of finding upon the issue.
I think, too, it was error not to permit the witness Hammond, referred to in the majority opinion as a professional engraver, to testify. He may not have been as highly qualified as some of the government’s experts — that I do not decide — but his qualifications and experience were such that he was competent, and the weight of the testimony he might have given would have been for the jury. No one of the experts was qualified in a special way, for the reason that the comparison was of a Chinese writing with other Chinese writings, and with such writings no expert had any great familiarity or experience.
For these reasons, I concur in reversing the judgment.