Germino

The is an appeal by defendant from a judgment of conviction of statutory rape, and from an order denying his motion for a new trial.

During the trial the prosecutrix, without objection, was permitted to testify as to the occurrence of five or six other instances of sexual intercourse between her and the defendant than the one upon which the charge was founded; and the defendant’s principal contention upon this appeal is that his rights were substantially prejudiced by reason of the court’s refusal to compel the prosecuting officer to elect upon which of the several acts he would rely. The simple answer to this contention is that such officer did make the election required, selecting for that purpose an act occurring on the ninth day of April, 1917.

Granting that the state having charged the act of that date as the one upon which it would rely for a conviction, it must prove that act, we think the evidence sustains the conviction, and that it sufficiently proves the charge as of that date. It is true that almost throughout her testimony the prosecutrix, when detailing the circumstances of this act, referred to it as occurring on the 11th of April; but later and on…