Everett

The information upon which a verdict was rendered of “guilty as charged” is as follows: “L. Everett is accused by the district attorney of the said county by this information of the crime of assault with intent to commit rape, a felony, committed as follows: The said L. Everett on or about the twenty-fourth day of July, one thousand, nine hundred and seven, at the said county of Calaveras, and before the filing of this information, did then and there willfully, unlawfully, feloniously, violently and forcibly make an assault upon one Edna Leavitt, a female, with the intent then and there feloniously and by force and violence to carnally know said Edna Leavitt and accomplish with her an act of sexual intercourse, against her will and without her consent, contrary to,” etc.

A motion in arrest of judgment was made, the appellant claiming that the information fails to state an offense of which the superior court has jurisdiction. The specific objection to the information is that there is no allegation that the female upon whom the assault was made is not the wife of the defendant. It is claimed that this is a material part, an essential ingredient of the crime of rape, and since the…

—I concur in the judgment. I ássent to that portion of the opinion in which the information is held to be fatally defective, because it omits to state that the prosecutrix is not the wife of the accused, upon the sole ground that the appellate ■ courts of this state have so construed section 261 of the Penal Code as to require such allegation in order to properly state the crime therein defined, and that such construction seems now to be the settled rule in California.

I am- of the opinion, however, that the instruction in which the jury were told that ‘ ‘ a malicious and guilty intent is conclusively presumed from the deliberate commission of an unlawful act for the purpose of injuring another,” is prejudicially erroneous. Under the information here it was competent for the jury to return a verdict of simple assault, and, while I agree that there may be evidence sufficient to support the verdict, it is equally true that, under the evidence, the jury would have been clearly justified in returning a verdict of simple assault. The vice of the instruction is that the jury were instructed in effect that the mere assault was sufficient to justify the indulgence by them of a conclusive…