Opinion
Black & Clark, of San Francisco, Cal., for plaintiff in error.
John W. Preston, U.S. Atty., of San Francisco, Cal.
Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge.
GILBERT, Circuit Judge.
The plaintiff in error was convicted on an indictment which charged him with sending through the mails an indecent letter, in violation of section 3893, Revised Statutes, as amended by 25 Stat. 496. One of the assignments of error is that the trial court refused to permit the plaintiff in error to show the reputation of the prosecuting witness for chastity in the community
Page 988.
in which she lived. The ruling of the District Court was clearly correct. The statute has regard only to the character of the letter, and not to the character of the person to whom it is addressed. See United States v. Musgrave (D.C.) 160 F. 700, and cases there cited.
Several assignments of error are based on the conduct of the District Attorney in making certain remarks in the presence of the jury, to which exception was duly taken. We find it unnecessary to discuss these assignments, for the reason that the alleged misconduct could have had no effect upon the jury's verdict. In arriving at their verdict the jury necessarily made two findings: First, that the letter was of the character denounced by the statute; and, second, that the plaintiff in error wrote it and mailed it. The first finding was based necessarily upon the nature of the letter itself. The second rested upon evidence so clear and convincing that the jury could not have determined otherwise than as they did. The plaintiff in error denied writing the letter; but he admitted writing a portion of another letter which was so clearly and obviously written by the same hand that expert testimony, although it was adduced, was unnecessary to show that the handwriting was identical. No possible misconduct on the part of the district attorney could have affected the conclusion which the jury was compelled to reach, and it is unnecessary to consider the matter, further than to say, as was said by the court below, that the district attorney's remarks were 'hardly commendable.'
The judgment is affirmed.