People v. Jailles

ANGELLOTTI, J.

Defendant was convicted of rape, and appeals from the judgment pronounced upon said conviction and from an order denying his motion for a new trial.

1. The defendant interposed a demurrer to the information upon the ground that “the said information charges more than one offense.’’ The demurrer was overruled, and this ruling of the trial court is complained of as erroneous.

The information contained two counts, each charging a rape committed by defendant on May 10, 1903, upon one Maria Tampo, the first charging that a rape was accomplished by means of force and violence, and against the resistance of the female, and the second omitting all allegations as to force and violence and resistance, and simply alleging an act of sexual intercourse with the said female, she then and there being under the age of sixteen years.

Section 954 of the Penal Code provides: “The indictment or information must charge but one offense, but the same offense may be set forth in different forms under different counts, and, when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.”

It has been said by this court that while under our statute the indictment or information may charge the same offense in different forms under different counts, “this must be done in such a way as to show clearly upon the face of the indictment or information that the matters and things set forth in

[304]

the different counts are descriptive of one and the same offense.”

(People

v.

Garcia,

58 Cal. 102.)

It must be conceded that it would be preferable for the pleader endeavoring to set forth one offense in different forms under different counts to expressly state in the information that the matters and things so set forth are descriptive of one and the same offense. Such a statement would obviate all question as to the intention of the pleader. We think, however, that, despite the absence of such a statement in the information before us, it is manifest that it was sought to charge but one offense—viz., one rape committed on Maria Tampo on May 10, 1903. The nature of the allegations in the two counts shows this very clearly. The only difference between the allegations of the two counts is, that force, violence, and resistance are alleged in one without allegation as to age, while in the other is the allegation as to age without any allegation as to force, violence, and resistance. The allegations of each show the offense of rape, committed On the same person on the same day, and indicate that the district attorney was simply endeavoring to set forth the same transaction in different ways so as to bring the case within either subdivision 1 or subdivision 3 of section 261 of the Penal Code, as the evidence on the trial might show it to have been.