Davis

On the thirtieth day of August, 1923, an information was filed in the superior court of the county of Mendocino charging the defendant with the commission of rape, a felony, as follows, to wit:

Trial was had on January 2 and 3, 1924. The defendant was found guilty, the verdict reading as follows: “We, the jury find the said defendant guilty as charged in the information. ’ ’

Thereafter, and on the seventh day of January, 1924, judgment was rendered and sentence pronounced, as provided by section 264, Penal Code, as it existed prior to the amendment, approved May 8, 1923.

The defendant’s motion for a new trial being denied, defendant appeals therefrom and from the judgment entered as aforesaid.

It is urgently contended by the appellant that the verdict rendered by the jury is void and that the court had no jurisdiction to pronounce judgment upon the defendant by reason of the fact that the amendment to section 264 of the Penal Code, as it existed at the date of the trial, required the jury to return in its verdict a finding as to whether the defendant should be confined in the county jail or in the state prison.

At the time of the commission of the offense the amendment to…