Wademan

Defenant was informed against by the district attorney of Yolo County for the crime of rape. He was found guilty and thereupon moved for a new trial, which was denied, and the court sentenced him to imprisonment in the state prison at San Quentin. The appeal is from the judgment and the order denying the motion for a new trial.

1. When the information was filed it charged that the crime was committed within one year prior thereto, .upon one Augusta Schwall, a female child of the age of fourteen years. Upon demurrer to the information the court permitted the district attorney to amend the information by alleging that the crime was committed “on or about the twentieth day of May, 1917,” and striking out the words “within one year prior thereto.” In his opening statement the district attorney mentioned two different days on which the criminal act was done, the second being a few days after the first, Defendant’s attorney thereupon demanded that the district attorney designate the day of the month and hour of the day specifically upon which he relied. The district attorney replied: “The burden is upon us to elect one particular act of sexual intercourse here, so we elect the first…