(concurring in the judgment of reversal).
The first offense charged is concubinage. There is not a syllable of evidence to support the eharge, and the district attorney concedes that “that word was merely surplusage and should not he considered.” The phrase “other immoral purposes” adds nothing to the indictment. Instead of eharging sexual intercourse—one of innumerable immoral purposes—which he expected to prove, he charged “debauchery,” a word of several meanings, some of which are not criminal; its sexual meaning is twofold— excessive indulgence which was not proved, and seduction from virtue which must be gathered from circumstances; nor did he specify which of these two sexual meanings he expected to prove. Nevertheless, the practice of awaiting the outcome of the trial before attacking an indictment for lack of particularity of statement cannot bo countenanced. There is a time for all things, and the practice affords the defendant ample opportunity before trial to require a better statement of the offense charged. After verdict, the question is not of form; the question is, Does the indictment state a public offense? I incline to the opinion that a charge of an interstate transportation for the purpose of debauchery states a public offense.
I think there were two trial errors. There are two elements of the offense charged—(a) transportation and (b) unlawful purpose. The plea of not guilty put both elements in issue. Both were for the jury. The defendant did not take the stand; he did not admit the transportation; by his plea, he denied it, just as his plea put in issue the unlawful purpose. The trial court charged the jury that “there is not any doubt in tliis ease” that the defendant made the interstate trip with the girl, and left to the jury the question of the purpose of the trip. In Bogileno v. United States (C. C. A. 10) 38 F.(2d) 584, the defendant was charged with bribing prohibition agents; the defendant took the stand, admitted he gave the agents $400' in currency immediately after his arrest. The defense was that he sought to entrap the agents. The court submitted to the jury the question of his intent—the only issue tendered by the evidence. The trial court said, “As I see it there is very little dispute in the evidence. Ho admits he gave the money for the purpose of bribery.” Defendant’s evidence was that the money was paid to entrap the agents into the offense of accepting a bribe. There could be no entrapment unless the xrayment was a bribe. There was no exception to the eharge, hut this court reversed the judgment because the trial court had invaded the xrrovince of the jury. To my mind, the present case is stronger than the Bogileno Case; there, the defendant admitted the xmyment; here, the defendant admitted nothing. I am not disposed to curtail the wholesome power of the trial court to comment uj)on the *1062evidence; but I think the issues framed should be left to the jury.
The district attorney asked the prosecuting witness the following, question: “During that time about which you have testified, did you know that Mr. King was not a medical doetor?” This was objected to as “incompetent, irrelevant and immaterial”; the objection was overruled and an exception saved. If the prosecution’s theory was that the defendant gained the confidence of the girl by representing that he was a medical doctor, when in fact he was not, proof of such facts might have been material. But there was no attempt to prove that he was not a medical doctor, nor any direct evidence that he represented he was. Lacking such proof, her knowledge was immaterial and incompetent. It may have been better form to object on the further ground that “the question assumes facts not proven”; but, where the liberty of a citizen is involved, technical nicety is not required. Bogileno v. United States (C. C. A. 16) 38 F.(2d) 584.
We are admonished by section 269 of the Judicial Code (28 USCA § 391) to disregard technical defects “which do not affect the substantial rights of the parties.” This statute has particular force, as many courts have said, when the evidence of guilt is clear and convincing. Tingley v. United States (C. C. A. 16) 34 F.(2d) 1. While the question of fact was for the jury, I do not feel that the evidence of guilt is so clear and convincing as to require that trial errors be overlooked. If the guilt of the defendant was clear, I might feel differently about these errors.
I pass by what seems to me to be certain improbabilities inherent in the evidence of the government, and mention but one circumstance. The theory of the prosecution was that the complaining witness contracted gonorrhea from the defendant. The defense was that it was impossible for her to have contracted gonorrhea from the defendant because he was not so infected. Shortly after his arrest, and while in jail, the defendant was physically examined by Dr. George Myler, a government physician, who found that he did not have gonorrhea at the time of the transportation. If this evidence is true, the theory of the prosecution falls. Another doe-tor testified that the wife of the defendant did not have gonorrhea, which has a strong evidentiary bearing upon the defendant’s physical condition. Inexperienced defense counsel, appointed to defend, submitted the case on stipulations that defense witnesses, if called, would testify to such facts. To rebut 'this stipulation, the government called another doetor who testified that the presence of gonorrhea might not be detected upon one examination. He was testifying as to the complaining witness, a female. It does not follow that there is like difficulty in detecting gonorrhea in a male. The extent of the examination which Dr. Myler made, and the probability of its being conclusive was a subject that should have been thoroughly explored.
I think there should be another trial; at such trial, I hope the district attorney will see to it that the question of the extent of the examination of Dr. Myler, and its eonelusiveness, is fully explored.
I therefore concur in the judgment of reversal, and the direction to grant appellant a new trial.