Rubalcado

Defendant was charged with the crime of rape upon the person of a female child under the age of sixteen years. He was found guilty and sentenced to state’s prison. He appeals from the judgment of conviction.

Besides contending that the evidence is insufficient to support the verdict, appellant assigns as error the giving of an instruction which, it is claimed, was misleading in that the jurors may have concluded therefrom that they could consider, as direct evidence of defendant’s guilt, certain testimony that was given by the girl upon defendant’s preliminary examination, and which, if admissible, could be received solely for the purpose of impeachment. As we are of the opinion that appellant’s criticism of the instruction is well taken, it will not be necessary to consider whether there was sufficient evidence to justify the verdict of guilty. It will, however, he necessary to give a brief statement of the facts in order to show the prejudicial effect of the instruction.

Defendant was a' boarder in the home of the parents of his alleged victim, an eleven year old school girl. On June 10, 1921, a friend drove the pair to the house of a neighbor, one Francisco Villegas, who…