People v. Ah Lung

The defendant was charged by the information with the crime of rape upon a female under the age of sixteen years, and convicted of an attempt to commit rape. The first point made in his behalf on this appeal is that the crime of which he was convicted is not included in a charge of rape, under subdivision 1 of section 261 of the Penal Code, unless it is charged that the rape was accomplished by force and violence, and against the will of the female. Section 1159 of the Penal Code provides that “the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. ’ ’ Where a statute is free from ambiguity, there is no room for construction. Courts are not at liberty to add to, or subtract from, language susceptible of but one interpretation. The meaning of this section is clear, and hence it must be held that every information charging a public offense includes an attempt to commit the crime charged. In People v. Gardner, 98 Cal. 128 , [ 32 Pac. 880 ], the defendant was charged with and convicted of an attempt to commit rape. The information and proof were assailed as…