Warriner

By the information of the district attorney filed in this case the defendant was charged under two counts,—first, with having committed the crime of rape, and, second, with having committed lewd and lascivious acts, such as are described by section 288 of the Penal Code. Both crimes were alleged to have been committed on the same day and with the same female child, who is alleged to have been of the age of thirteen years. The jury returned a verdict finding the defendant guilty of the crime of rape and not guilty on the second count of the information. Defendant appeals from the judgment of imprisonment entered and from an order denying his motion' for a new trial.

Preliminarily it may be stated that there was submitted to the jury ample evidence to justify the verdict of guilty as returned. The only point urged on this appeal is one which goes to the form of pleading in the information. Section 288 makes it a felony for a person to commit lewd and lascivious acts with a child. There was a demurrer to the information. Appellant contends ^hat it is not allowable to charge two offenses in the same information, both of which refer to the same acts alleged to have been committed by a…