People v. Bailey

McFARLAND, J.

The defendant was charged with the crime of rape, alleged to have been committed by willfully, feloniously, etc., having sexual intercourse with a female child under the age of sixteen years, and was found “guilty as charged in the information.” He appeals from the judgment and from an order denying his motion for a new trial.

Among the points made by appellant for a reversal there is really only one which calls for special notice, and it arises out of that part of the charge of the court to the jury which deals with the form of their verdict and the offenses of which he might be convicted under the information. In this part of the charge the court told the jury, substantially, that because the word “assault” was not in the information the defendant could not be convicted of an assault with intent to

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commit rape, and then proceeds to the following: “Therefore, under this information there will be but two verdicts, either of which you can render. The first is, ‘We, the jury, find the defendant guilty, as charged in the information’; the second is, ‘We, the jury, find the defendant not guilty. ’ ” We need not consider that part of the charge in which the jury were told that there could not be a conviction of “assault” with intent, etc., because the appellant himself had asked a written instruction that “the defendant cannot be convicted of an assault-with intent to commit rape,” and the instruction was marked “Refused. Covered by charge.” However, the question is still presented whether or not it was reversible error to preclude the jury from finding a verdict of guilty of an “attempt” to commit rape—under section 1159 of the Penal Code. We think that it has been established by former decisions of this court that a judgment will not be reversed because the trial court had not instructed as to a lesser crime included in the greater one charged, unless the defendant had requested that the jury be so instructed. In

People

v.

Franklin,

70 Cal. 641, which was frequently referred to approvingly in other cases, the court said: “If defendant wanted the attention of the jury specifically called to each of the lesser crimes necessarily included in the charge set out in the information he should have requested the court to do so, which he does not appear to have done.”' In