Sheffield

Defendant was convicted of rape committed upon a female child under the age of sixteen years. He appeals from the judgment and order denying a new trial.

The information filed, and upon which defendant was tried, charged that the offense was committed “on or about the 12th day of October, 1907.” It is insisted that the information is defective because the precise time was not stated. This is not necessary under section 955 of the Penal Code, except where the time is a material ingredient in the offense. That it is not such an ingredient, where rape by means of force is charged, is determined in the case of People v. Dinsmore, 102 Cal. 382 , [ 36 Pac. 661 ]. No convincing reason is suggested why a different rule should apply where the female is by statute rendered incapable of consent. The information charges that at the time of the commission of the act the female was under the age of consent, and it clearly appears that the offense was committed within the three years immediately preceding the filing of the information. This is sufficient. It is unnecessary to allege that the female had never been married to anyone before the commission of the act. It is sufficient to aver and…