Nakano v. United States

GILBERT, Circuit Judge.

The plaintiff in error was convicted under an indictment which charged him with, keeping a house of ill fame within five miles of a military post, in violation of section 13 of the Act of May 18, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2019b), and the order of the Secretary of War made in pursuance thereof.

[1] Error is assigned to the refusal of the court below to strike from the evidence the testimony of a policeman, who- testified that on the premises of the plaintiff in error he arrested a certain woman who he said was a prostitute; that she was soliciting prostitution and living on the premises; that she was standing in the doorway of the hotel of plaintiff in error “and there was a white man came along Stockton street; she nodded to him and said, 'Come on in.’ ” Motion was made to strike out the last statement, on the ground that it was hearsay, and not made in the presence of the defendant. The evidence was clearly admissible for the purpose of showing that prostitution was being practiced on the premises. State v. Toombs, 79 Iowa, 741, 45 N. W. 300; Beard v. State, 71 Md. 275, 17 Atl. 1044, 4 L. R. A. 675, 17 Am. St. Rep. 536; State v. Littman, 86 N. J. Law, 453, 92 Atl. 580; People v. Claffy, 95 Misc. Rep. 400, 160 N. Y. Supp. 760.

*762 [2] It is contended that it was error to permit an employé of the board of health, whose duty it was to examine women arrested on immorality charges, with a view to isolate them and cure them if infected, to testify that he examined three of the women who were found on the premises of the plaintiff in error, and ascertained that they were all infected with venereal diseases. No authorities are cited for or against the admissibility of such testimony. We are not convinced that it was reversible error to admit it. The character of the women on the premises in question was proper to be considered in connection with the charge, and we think it was not beyond the proper range of proof to show, for the value which it might have, that the women had acquired the maladies common to prostitution. The charge of the court below is not before'us. We may assume that the jury were properly instructed as to the probative value of such evidence.

[3] We find no merit in the suggestion that the indictment is fatally defective for failure of the district attorney to attach his signature thereto. No statute makes such a signature essential. The indictment was properly indorsed “A true bill” by the foreman, and was presented and filed in open court, and the plaintiff in error went to trial without directing objection to any formal defect. The objection was not raised in the court below, nor is it found in the ’assignments of error. It comes too late. United States v. McAvoy, 4 Blatchf. 418, Fed. Cas. No. 15,654; Frisbie v. United States, 157 U. S. 160, 15 Sup. Ct. 586, 39 L. Ed. 657.

The judgment is affirmed.