Ruiz

Defendant was convicted of the crime of assault with intent to commit rape and appeals from the judgment of imprisonment entered against him, and from an order denying his motion for a new trial.

The information charged an attempt by force to commit the crime against a female person not the wife of the defendant. The evidence showed that the prosecutrix was a child of the age of eleven years, but as the district attorney elected to rely upon the charge of a forcible attempt, without alleging the age of the prosecutrix, the element of force was a material ingredient to he established by the evidence. Leaving out of consideration the substantial error which was committed to the defendants’ prejudice in the course of the trial, it might be said that the evidence was sufficient to sustain a conviction. [1] The error to which we refer is that the district attorney was permitted to prove several distinct and separate acts of the defendant committed on the same day, either one of which might have been included within the charge made by the indictment. After the first alleged act was shown, defendant demanded that the district attorney select the particular act upon which he relied,…