Miles

Defendant prosecutes this appeal from a judgment convicting him of the crime of rape, and the order denying his motion for a new trial.

It is claimed that the court erred in denying his motion in arrest of judgment, for the reason that the information fails to charge the defendant with the crime of rape as defined by the Penal Code with reference to this case, to wit, “an act of sexual intercourse accomplished with a female not the wife of the perpetrator . . . where she resists but her resistance is overcome by force or violence.” (Pen. Code, sec. 261.)

The information accuses the defendant of rape committed as follows: “The said Fred Miles, prior to the time of filing this information, and on the 26th day of June, A. D.1907, at the said county of Alameda, State of California, did then and there in and upon one Carrie E. Welte, a female, violently and feloniously make an assault, and her, the said Carrie B. Welte, then and there feloniously did ravish and carnally know, against her will and by force.” There is no allegation or statement that the female was not the wife of the defendant. Such allegation is necessary, because it is a part of the definition of the crime. The law…