Erwin

The defendant was convicted of a felony designated in the information as an attempt to commit the infamous crime against nature with and upon a male human being named in the information by then and there attempting to have carnal knowledge of the body of the person so named. He appeals from the judgment and order denying his motion for a new trial.

Section 286 of the Penal Code provides: “Every person who is guilty of the infamous crime against nature, committed with mankind, ... is punishable by imprisonment in the state prison not less than five years.” Section 664 of the Penal Code provides: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: 1. If the offense so attempted is punishable by imprisonment in the state prison for five years, or more . . . the person guilty of such attempt is punishable by imprisonment in the state prison . . . for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted.” The crime charged is substantially alleged in the…