The People v. Bonfanti

KERRIGAN, J.

The defendant was convicted of the offense of assault with intent to commit rape, and appeals from the judgment. He urges three grounds in support of his appeal, the first of which is that the information fails to state an offense within the jurisdiction of the superior court— the court in which he was tried and convicted. The defect of the information referred to is that there is no statement therein that the-victim of the assault was not the wife of its perpetrator; that, accordingly, for aught that appears in the information, she may have been his wife, and consequently the alleged acts of violence constitute in law a simple assault, an offense not within the jurisdiction of the superior court.

The offense that the information purported to charge is that defined by section 220 of the Penal Code, which provides that “every person who assaults another with intent to commit rape ... is punishable by imprisonment in the state prison

[615]

. . . ” Section 261 of the same code defines rape as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator,” under variant conditions set forth in said section, among which is the accomplishment of the act by means of force and without the consent of the participant. It is thereupon argued that an information charging an assault with intent to commit rape must contain the same statement with reference to the woman as in a charge of rape itself, namely, that she was not the wife of the perpetrator.

The cases of

People

v.

Miles,

9 Cal. App. 312, [101 Pac. 625], and

People

v.

Everett,

10 Cal. App. 12, [101 Pac. 528], are cited in support of the appellant’s contention. The first of these cases was upon an information charging the same offense as in the case at bar, and the second of them was upon an information charging "rape, in both of which it was held that the omission to state therein that the female concerned was not the wife of the defendant rendered the information so defective as to necessitate a reversal of the judgment.