Maruyama

The defendant was convicted of the crime of rape. He has appealed from the judgment of final conviction and frofii the order denying him a new trial.

The' information charges the crime in two counts. While-the first count proceeds in part upon the theory that the de fendant committed an act of sexual intercourse with a female child under the age of sixteen years and not the wife of the defendant, it also charges that the defendant willfully, feloniously and unlawfully made an assault upon the said female, and by means of force and violence accomplished with her an act of sexual intercourse against her will and consent.

The second count makes no mention of the age of the female; but it specifically states that the crime charged therein arises out of the same transaction upon which the first count is founded, and then proceeds to charge the crime solely upon the theory that it was committed by the defendant by means of force and violence and against the will and consent of the prosecutrix.

The jury found the defendant guilty as charged in the first count of the information.

It seems to be the contention of the defendant that because the first count of the information, under…