People v. Lanham

PLUMMEB, J. The defendant was convicted upon counts two and three of an information containing five counts. Count two charged the defendant with the crime of attempt to commit rape. Count three charged the defendant with the violation of section 288 of the Penal Code, naming the child.

The defendant’s motion for a new trial being denied, this appeal is from the order of the court denying his motion, and, also, from the judgment pronounced following the verdict of the jury finding the defendant guilty as above stated.

Upon this appeal no question is made as to the sufficiency of the testimony to support the verdict of the jury, so far as it related to count two finding the defendant guilty of an attempt to commit rape. It is, however, urged as grounds for reversal that the jury failed to follow the provisions of section 264 of the Penal Code, which provides that in prosecutions for rape, where subdivision 1 of section 261 of the Penal Code applies, the jury must fix the place of imprisonment.

In the instant case, the question of the place of punishment was not submitted to the jury. In considering this question, we must take into view the purpose of the legislature in enacting section 264, supra, and section 664 of the Penal Code, this action being prosecuted under the latter section.

In the enactment of section 264, the legislature undoubtedly had in thought that in many cases prosecuted under the first subdivision of section 261, the female involved might so nearly have reached the age of maturity as to be able to give practical, though not legal, consent, and as pointed out in the cases of People v. Rambaud, 78 Cal. App. 688 [248 Pac. 954], and followed in the case of People v. Sachau, 78 Cal. App. 702 [248 Pac. 960], the circumstances surrounding the [739]offense might be snch as to justify the jury in modifying the sentence to be imposed by fixing the place of punishment in the county jail rather than the state penitentiary.

Section 664 of the Penal Code is under a different title, has to do not with the actual commission of the offense of unlawful intercourse with females, but only with the attempt. No question of consent, or seeming consent, is involved in offenses prosecuted under section 664, supra, or, at least, no such intention appears to have been in the mind of the legislature, when enacting the section under which the present prosecution was had.