Lewis

Defendant was charged in the information with the crime of rape upon a small child under the age of "sixteen years. The jury returned a verdict of guilty as charged. Defendant appeals from the order denying his motion in arrest of judgment, from the order denying his motion for a new trial and from the final judgment of conviction.

1. Defendant was convicted as an accessory before the fact. The prosecutrix was the stepdaughter of defendant. There is no evidence that defendant had sexual intercourse with her or that he was present at the commission of the crime, but there was abundant evidence that he aided and abetted its commission by one Alon Wheeler, a youth of about seventeen years of age. Defendant’s contention is that because he was not personally present when the crime was committed the evidence must be held to be insufficient to justify the verdict (citing People v. Schoedde, 126 Cal. 373 , [ 58 Pac. 859 ]). That was the case of prosecution for the crime of mayhem. The court held that if the defendant was not present when the crime was committed the verdict had not sufficient support, and under the evidence there was not “disclosed that aiding and abetting by defendant…