People v. Davis

PLUMMER, J.

On the thirtieth day of August, 1923, an information was filed in the superior court of the county of Mendocino charging the defendant with the commission of rape, a felony, as follows, to wit:

“The said Felty Hersie Davis on or about the 23rd day of June A. D. nineteen hundred and 23 at the said Mendocino County, State of California, and before the filing of this information then and there Avilfully, unlawfully and feloniously had and accomplished an act of sexual intercourse

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with and upon one Wilda Finley, a female person, then and there under the age of eighteen years, to wit, of the age of fifteen years, and not the wife of the said defendant, Felty Hersie Davis, contrary to the form, force and effect of the Statute in such case made and provided, and against the peace and dignity of the People of the State of California.”

Trial was had on January 2 and 3, 1924. The defendant was found guilty, the verdict reading as follows: “We, the jury find the said defendant guilty as charged in the information. ’ ’

Thereafter, and on the seventh day of January, 1924, judgment was rendered and sentence pronounced, as provided by section 264, Penal Code, as it existed prior to the amendment, approved May 8, 1923.

The defendant’s motion for a new trial being denied, defendant appeals therefrom and from the judgment entered as aforesaid.

It is urgently contended by the appellant that the verdict rendered by the jury is void and that the court had no jurisdiction to pronounce judgment upon the defendant by reason of the fact that the amendment to section 264 of the Penal Code, as it existed at the date of the trial, required the jury to return in its verdict a finding as to whether the defendant should be confined in the county jail or in the state prison.

At the time of the commission of the offense the amendment to section 264, enacted by the legislature in 1923, had not yet become effective. Section 264, Penal Code, at that date read as follows: “Rape is punishable by imprisonment in the state prison not more than fifty years, except where the offense is under subdivision 1 of section 261 of the Penal Code and the female is over the age of sixteen years and under the age of eighteen years in which case the punishment shall be by imprisonment in the county jail for not more than one year or in the state prison for not more than fifty years, and in such case the jury shall determine by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison.” Subdivision 1 of section 261 of the Penal Code reads as follows: “Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the follow