Matter of Application of Drennan

The petition for the writ must be denied. Inasmuch as the petitioner is confined in the penitentiary, is not represented by counsel, but has, in propria persona, made this application and is not an attorney, it is deemed proper to state briefly the ground of our refusal to grant the application or to issue the writ.

The petitioner was convicted of and is now undergoing punishment for the crime of an assault to commit the crime of rape. He claims that the judgment of conviction was and is void because the crime of which he was found guilty was not within the crime charged in the information. The point is that he was therein charged with statutory rape or carnally knowing a female incapable under the law of consenting to such an act, in which ease force is not a necessary element and which, where committed even with the actual consent of the female, is, under the law, a crime, and that, therefore, an assault is not a necessary ingredient of the crime. He cites and relies on the case of People v. Akens, 25 Cal. App. 373, [ 143 Pac. 795 ],

We considered this precise question when the petitioner’s case was before this court on appeal. (People v. Drennan, 25 Cal. App. 645, [ 145 Pac.…