People v. Sheffield

ALLEN, P. J.

Defendant was convicted of rape committed upon a female child under the age of sixteen years. He appeals from the judgment and order denying a new trial.

The information filed, and upon which defendant was tried, charged that the offense was committed “on or about the 12th day of October, 1907.” It is insisted that the information is defective because the precise time was not stated. This is not necessary under section 955 of the Penal Code, except where the time is a material ingredient in the offense. That it is not such an ingredient, where rape by means of force is charged, is determined in the case of

People

v.

Dinsmore,

102 Cal. 382, [36 Pac. 661]. No convincing reason is suggested why a different rule should apply where the female is by statute rendered incapable of consent. The information charges that at the time of the commission of the act the female was under the age of consent, and it clearly appears that the offense was committed within the three years immediately preceding the filing of the information. This is sufficient. It is unnecessary to allege that the female had never been married to anyone before the commission of the act. It is sufficient to aver and prove that she was under the age of consent and not at the time the wife of the one having sexual intercourse with her. The offense is complete under the statute, even though the female may have been at the time the wife of another.

The charge of the court, “that the presumption that a witness speaks the truth may be repelled by his interest in the case, if any, or his bias or prejudice, if any,” while it goes beyond section 1847, Code of Civil Procedure, is not therefore error. “It amounts only to telling them (the jury) that interest and bias may be considered by them in weighing the

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testimony, as undoubtedly may be done.”

(People

v.

Amaya,

134 Cal. 540, [66 Pac. 794].)