McCollum

The defendant was charged with the crimes of incest and rape, in two counts of an information filed by the district attorney of Imperial County. The first count of the information charges the defendant with an act of intercourse with the prosecutrix, committed on January 15, 1931, alleging that the prosecutrix was “a female child of the age of 16 years, she . . . being then and there the daughter of the said defendant S. H. McCollum”. The second count of the information is the conventional statutory rape charge, charging the offense to have been committed on January 15, 1931, and alleging the prosecutrix to have been “under the age of 18 years, and not then and there the wife of” said defendant. The defendant was tried by a jury, and only one act of intercourse, on January 15, 1931, was proved, although there was evidence of prior acts over a period of years. By the verdict of the jury the defendant was found guilty as charged in count I of the information, and found not guilty of rape as charged in count II thereof. Defendant’s motion for a new trial was denied and this appeal is from that order and from the judgment which followed.

The only point raised by appellant is that the…