Mancuso

The defendant was convicted upon a charge of rape upon the person of a child under the age of consent. The appeal is from the judgment and from an order denying defendant’s motion for a new trial.

It is true, as asserted by the defendant, that in prosecutions for rape, where a single act is charged and a series of acts of sexual intercourse are proved, the prosecution must select the particular act relied upon. (People v. Castro, 133 Cal. 11 , [ 65 Pac. 13 ].) But in the present case a specific act was alleged in the information, and that act with a great many others was proved. No objection was made to any of this testimony, nor did the defendant complain at any time during the trial that he was in doubt as to which act of sexual intercourse was the basis of. the prosecution. Apparently the district attorney relied particularly on the act alleged; but in any event the defendant, in view of the condition of the record, must be deemed to have waived any right he may have had to a more definite selection of the principal act.

Complaint is also made that the district attorney was guilty of misconduct in two instances. The first arose when the district attorney brought out on the…