People v. Ah Lung

McLAUGHLIN, J.

The defendant was charged by the information with the crime of rape upon a female under the age of sixteen years, and convicted of an attempt to commit rape. The first point made in his behalf on this appeal is that the crime of which he was convicted is not included in a charge of rape, under subdivision 1 of section 261 of the Penal Code, unless it is charged that the rape was accomplished by force and violence, and against the will of the female. Section 1159 of the Penal Code provides that “the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. ’ ’ Where a statute is free from ambiguity, there is no room for construction. Courts are not at liberty to add to, or subtract from, language susceptible of but one interpretation. The meaning of this section is clear, and hence it must be held that every information charging a public offense includes an attempt to commit the crime charged. In

People

v.

Gardner,

98 Cal. 128, [32 Pac. 880], the defendant was charged with and convicted of an attempt to commit rape. The information and proof were assailed as insufficient, but the judgment was affirmed. We have examined the original record in that case, and find that the information charged an attempt to commit rape in language almost identical with the descriptive portion of the information in the case at bar. There was no mention of force, violence, assault, or want of consent. ' That ease is therefore express authority against the contention of the applicant here, and we have neither

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the inclination nor the right to depart from the rule thus announced. The subsequent enactment of section 288 of the Penal Code does not impair or affect the rule. Under this section, children, regardless of sex, are afforded protection from lewd or lascivious acts, not “constituting other crimes,” and this clearly excludes the offense of which the defendant stands convicted.

It is contended that there is no evidence tending to corroborate the testimony of the prosecutrix, and that her evidence is so contradictory that the verdict should not be allowed to stand. It must be borne in mind, however, that in cases like the one at bar, the corroborative evidence need not tend directly to connect the defendant with the offense charged. Indeed, there is no absolute rule requiring corroboration in such cases.