Jensen

pro tern. — This is an appeal by defendant from an order denying his motion for a new trial and from a judgment of conviction for an assault with intent to commit rape upon the prosecutrix, Bettie Horton, a child of six years.

As originally drawn, the information through clerical error gave the name of the prosecutrix as Bettie Norton, instead of Bettie Horton. When the prosecution rested, the defendant, before proceeding with his defense, moved the court for a direction to the jury to find the defendant not guilty upon the ground, among others, that the information charged an assault upon Bettie Norton while the proof related to Bettie Horton. The motion was denied; and upon motion of the district attorney the court ordered an amendment of the information changing the name to Horton. Defendant contends that the jury having been impaneled to try him upon a charge of assault upon Bettie Norton, he was deprived of the right to a trial by jury of the charge of assault declared by the amended information to have been made on Bettie Horton.

Section 1008 of the Penal Code allows amendment in the discretion of the court at any time after a defendant’s plea, where it can be done without…