Price

An information was filed against the defendant by the district attorney of San Joaquin County, charging the defendant with rape upon the person of one Nancy Baker, a girl under the age of consent. Defendant was convicted of an attempt to commit rape and sentenced to serve a term of ten years at San Quentin prison. He appeals from the judgment and from the order denying his motion for a new trial.

Appellant’s brief is devoted chiefly to a discussion of the evidence and to a challenge of its sufficiency to support the verdict. The prosecuting witness testified that defendant had sexual intercourse with her—that there was actual penetration of her private parts. A physical examination of the girl by physicians shortly after the alleged crime, and other evidence created such doubt in the minds of the jury that they found the defendant guilty only of an attempt to commit the crime. It is hence argued that this finding of the jury, to gether with many circumstances and facts pointed out, shows that the story told by the girl is wholly unworthy of belief and in fact purely the creature of her imagination.

At the time of the alleged commission of the crime, defendant and his wife were…

I concur in the judgment for the -reason that it appears that the testimony of the doctor who professionally examined the prosecutrix, and who said that, upon such examination, he found the existence of conditions or evidence indicating that the prosecutrix had been carnally known by some one of the male sex, furnished some corroboration of the child’s story that some one had had sexual relations with her. Then there are the provisions of sections 1159 and 663 of our Penal Code, which expressly authorize a verdict of any offense the commission of which is included within that with which the defendant is charged, or (the last mentioned section) a verdict of an attempt to commit a crime, when the defendant is charged with such attempt, notwithstanding that the evidence may show that the crime intended was itself actually committed. The court instructed the jury that, under, the law, they were at liberty to find the accused guilty of an attempt to commit the crime of rape, if the evidence was sufficient. It must be assumed, I presume, that the jury acted under that instruction, since the verdict was for an. attempt to commit the crime.

But, were it not for the provisions of the code…