People v. Webster

Garoutte, J. Appellant was convicted of an assault with intent to commit rape. He appeals from the judgment and order denying his motion for a new trial.

1. It is first insisted that the evidence was insufficient to support the verdict, but we cannot agree with this contention. The question as to the specific intent with which appellant did the acts proven against him was a matter entirely for the jury to pass upon under the evidence, and by that evidence the jury were fully justified in finding the intent as charged in the information.

2. The prosecutrix in this case took the stand and testified that she was only twelve years of age, and then related the occurrences which took place between her and the appellant, upon which this information is based. Upon cross-examination she was asked if she did not consent to all that was done by appellant, and an objection was sustained to the question, upon the ground that her consent was immaterial, the trial court at the [383]time stating: “ I snail instruct the jury she cannot consent, and, that being so, it is of no legal consequence.” When the time arrived to charge the jury as to the law of the case the court made good its previous statement by giving that body this instruction: “ By the statute of this state rape is an act of sexual intercourse, accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of fourteen years. Under the evidence it is not necessary to mention the other circumstances here. . , , . And this offense, if proved at all, comes within the section of the statute I have just read.”

In the case of People v. Verdegreen, 106 Cal. 212, 46 Am. St. Rep. 234, this court held that a female under the age of fourteen years cannot even consent to an assault with intent to commit rape, the identical offense here charged. The evidence in this case may well be said to be conflicting upon the fact as to whether or not this prosecutrix consented, although probably greatly preponderating to that effect. Hence, her age was a vital question in the case. It may be said to have been the fact upon which the whole case rested. Indeed, as we have seen, the trial judge so construed it. And we think it was clearly wrong upon his part to instruct the jury in effect that this girl was under fourteen years of age. This is exactly what he said he would do, and is substantially what he did do. The court in so instructing passed upon a question of fact. The girl’s age, as we have suggested, was a prominent fact in the case, and essentially one for the jury to pass upon. The court had no more right to tell the jury that under the evidence the girl was under fourteen years of age, than it had to tell the jury that under the evidence the offense charged had been proven. The court appears to have assumed that the prosecutrix having testified that she was but twelve years of age, and no contradictory evidence having been offered, the fact was conclusively established as a matter of law, and, therefore, it was jus