People v. Akens

BURNETT, J.

Defendant was charged with having had carnal intercourse with a female under the age of consent and he was convicted of “assault with intent to commit rape.” Several reasons are urged by appellant for reversal but the most serious question, which is not discussed or suggested at all, is whether the verdict is within the scope of the information—in other words, whether the defendant was convicted of a different crime from that charged against him.

The charging part of the information is that “The said Jack Akens did on or about the 12th day of May, A. D. 1913, at Butte County and state of California, and' before the filing of this information, wrongfully, unlawfully, willfully and feloniously accomplish an act of sexual intercourse with one Nora Heckart, the said Nora Heckart being then and there a female under .the age of sixteen years, to wit, of the age of eleven years, and not being then and there the wife of the said Jack Akens.” It is thus to be seen that the element of

force

is not charged, as indeed it is not required to constitute the offense of

rape

on the person of a female under the age of consent. The crime of

assault

with intent to commit rape necessarily implies, however, the use of

force

and

violence

and negatives the idea of consent upon the part of the victim. Of course, if the defendant had been charged with rape on the person of an adult the element of force would have been included in the charge and thus the information would have comprehended the crime of which he was convicted. Or, if the defendant had been convicted of an “attempt to commit rape” we could say that it was covered by the charge because every crime includes an attempt to commit said crime. But “an assault implies repulsion or at least want of consent on the part of the person assaulted.”

(People

v.

Dong Pok Yip,

164 Cal. 146, [127 Pac. 1032].) An “assault” with intent to commit a crime necessarily embraces an “attempt” to commit said crime but said “attempt” does not necessarily include an “assault.” This distinction