People v. Mesa

Belcher, C. The defendant was found guilty of an assault with intent to commit rape, and sentenced to be [583]imprisoned in the state prison for the term of ten years. He moved for a new trial, which was denied, and has appealed from the judgment and order.

The first ground urged for a reversal is, that the information was wholly insufficient to support the verdict and judgment, because it did not state the name of any person upon whom the rape was intended to be committed. The part of the information objected to is as follows: “ The said Juan Mesa .... did unlawfully, feloniously, with force and violence, assault Alice West-fall, a female child under fourteen years of age, with intent to commit rape, and without her consent and against her will.”

The Penal Code has the following provisions: —

“ Sec. 220. Every person who assaults another with intent to commit rape „ ... is punishable by imprisonment in the state prison not less than one nor more than fourteen years.”

“ Sec. 959. The indictment or information is sufficient, if it can be understood therefrom .... 6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; 7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case.

“ Sec. 960. No indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be'affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.”

“ Sec. 1404. Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defend[584]ant, or tended to his prejudice, in respect to a substantial right.”