People v. Roach

CHIPMAN, C.

Information for assault with intent to commit rape. The jury returned a verdict of guilty as charged in the information, and judgment was entered thereon that defendant be imprisoned at Folsom for the term of eight years. The appeal is from the judgment and from the order denying defendant’s motion for a new trial.

1. It is contended that the verdict was contrary to the evidence. It appears that the alleged assault was upon a girl under the age of fourteen years and hence under the age of consent.

Defendant claims that the evidence fails to bring the case within the rule laid down in

People v. Fleming,

94 Cal. 308, where it was said: “The assault must have been made with intent to commit rape notwithstanding all possible resistance that could be made. The intent must have been to perpetrate the crime at all events regardless of what the prosecutrix might or could do to prevent it.” In that case the female was of the age of twenty-four years, and force was a necessary element of the crime, and so also was consent a question necessarily involved. In the present case neither the element of force nor the question of consent has any application. The prosecutrix could not consent, and the law resists for her.

(People v. Verdegreen,

106 Cal. 211.

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) We must judge of defendant’s intent iby his conduct and not hy that of his victim. There were certain unmentionable acts on his part which clearly showed his intent to have sexual intercourse with the girl, and from all the facts and circumstances we think it sufficiently appeared that his intent was to have carnal intercourse with the girl. If he had succeeded it would have been rape, with or without force and with or without her consent, and it must follow that as his intent was to violate the person of the girl, it constituted an assault with intent to commit rape.

In

People v. Courier,

79 Mich. 366, the court said: “In cases of this kind it is not necessary that it should be shown, as in

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